C2007/3458, Transcript of Proceedings [2007] AIRCTrans 605 (5 November 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17692-1

SENIOR DEPUTY PRESIDENT ACTON
SENIOR DEPUTY PRESIDENT CARTWRIGHT
COMMISSIONER LARKIN

C2007/3458

s.120 - Appeal to Full Bench
Appeal by Telstra Corporation Limited
(C2007/3458)

SYDNEY

10.21AM, WEDNESDAY, 24 OCTOBER 2007

Reserved for Decision

PN1

MS D MORTIMER: I seek leave to appear on behalf of the appellant with
MR S WOOD.

PN2

MR A HATCHER: I seek leave to appear as counsel on behalf of the respondent.

PN3

SENIOR DEPUTY PRESIDENT ACTON: Ms Mortimer.

PN4

MS MORTIMER: If the Commission pleases, before I embark on submissions on the appeal proper, there is a preliminary matter which we wish to raise and to which we've given our friends notice. The appellant wishes to apply for a
non-publication order of a very limited compass under section 839(5) of the Workplace Relations Act and if I can just explain to the Commission what the subject matter of that proposed order is. Does the Commission have volume of the appeal book?

PN5

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN6

MS MORTIMER: If I could ask the Commission to turn to page 1 which is the notice of appeal.

PN7

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN8

MS MORTIMER: Ground 2 which deals generally with some grounds related to failure to make certain findings, subparagraph (a) deals with a particular alleged incident and that is an incident which is not the subject of any findings in the decision of his Honour Hamberger SDP and therefore is presently not a matter that has been the subject of any particular publicity. We had sought to support this application with some two witness statements going to what, from my client's perspective, would seem to be the effect of further new publicity about this matter as opposed to repetitions of existing publicity.

PN9

I understand from my learned friend, Mr Hatcher, that there's likely to be some objections to those statements and we don't wish to take up the Commission's time unnecessarily with argument and he has indicated to me that if I was to set out, as it was, from the bar table what Telstra's position is, he would have no objection to that course, if that course was convenient to the Commission.

PN10

The simple fact really is, as I've already submitted, that this is an incident which was not the subject of any findings and therefore is not presently in any detail in the public domain and in our submission there is nothing in the interests of the administration of justice and the task of this Commission which is served by adding further detail to what's already in the public domain and there are interests both of the other employees of the appellant and Ms Streeter herself, which in our submission are better served by prohibiting the publication in relation to facts and evidence and submissions surrounding that particular incident

PN11

We seek a very limited order, only really to preserve the status quo in terms of what is already in the public domain. I have a copy of a proposed order
which - - -

PN12

SENIOR DEPUTY PRESIDENT ACTON: That would be helpful.

PN13

MS MORTIMER: - - - I have given to our learned friends yesterday. They always cause some difficulty, non-publication orders, particularly in terms of ensuring exemptions that are going to facilitate the proper determination of the matter. That's what we've attempted to do in paragraph 2, if the Commission pleases.

EXHIBIT #A1 DRAFT ORDER

PN14

SENIOR DEPUTY PRESIDENT ACTON: Are you content with that,
Mr Hatcher?

PN15

MR HATCHER: Can I just say this, I'm not instructed to either support or oppose the application. If the Commission wants me to provide any assistance as to the principles to apply such an application, I'll give it, but not unless I'm invited to.

PN16

SENIOR DEPUTY PRESIDENT ACTON: Yes, okay.

PN17

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Ms Mortimer, can I just ask what - the reference is here, what is actually being suppressed? Is that appeal book pages 108 to 110?

PN18

MS MORTIMER: Yes, your Honour, it's the - - -

PN19

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I know what the matter is.

PN20

MS MORTIMER: - - - evidence, the allegations, submissions or other material relating to the incident as described in those paragraphs. That's how we've attempted to frame it because of course it may be - it was just to prohibit publication of those pages that would not catch submissions made in relation to it.

PN21

SENIOR DEPUTY PRESIDENT CARTWRIGHT: And anything relating to that particular incident.

PN22

MS MORTIMER: Yes, your Honour, that's right.

PN23

SENIOR DEPUTY PRESIDENT ACTON: I assume that for this order to be meaningful, we'll need to attach the relevant pages of the appeal book, otherwise it's a bit unclear about exactly what's being suppressed. You'd have to go and find the appeal book to - - -

PN24

MS MORTIMER: Yes, I accept that, your Honour. That would be appropriate. We'll ensure that a full copy is provided if that would be convenient.

PN25

SENIOR DEPUTY PRESIDENT ACTON: Yes, thank you. We'll so order in accordance with exhibit A1. That order will be reduced to writing as soon as possible.

PN26

MS MORTIMER: If the Commission pleases.

PN27

SENIOR DEPUTY PRESIDENT ACTON: Yes, Ms Mortimer.

PN28

MS MORTIMER: This is an appeal by way of notice of appeal which the Commission will find at page 1 of volume 1 of the appeal book and there are
six grounds that are relied on by the appellant. I'll briefly run through those if I may.

PN29

SENIOR DEPUTY PRESIDENT ACTON: Just before you do, Ms Mortimer, I should indicate we've received written submissions from you which the bench has had the opportunity to read.

EXHIBIT #A2 WRITTEN SUBMISSIONS

PN30

MS MORTIMER: Just again in order to ensure that my submissions are as sufficient as they can be, can I take it the Commission has had an opportunity to read the reasons for decision of the Senior Deputy President below?

PN31

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN32

MS MORTIMER: Could I perhaps also take it that the Commission has otherwise not had a chance to trawl through the rest of the appeal books?

PN33

SENIOR DEPUTY PRESIDENT ACTON: You can take it in part. You would be best to err on the side of being generous in your submissions in that regard.

PN34

MS MORTIMER: If the Commission pleases. We have, however, put a lot of appeal book references in our submissions and I don't propose to take the Commission chapter and verse through those because we have done that so that they are available for the Commission's reference after the conclusion of oral argument.

PN35

If I can briefly describe the grounds of appeal, or characterise the grounds of appeal in this way, there are grounds of appeal which concern, in our submission, issues of construction whether of the Workplace Relations Act or the Sex Discrimination Act and those are principally ground 1 and ground 3. There are then grounds that concern what in our submission is a failure to make necessary findings of fact and that's really ground 2 and ground 4, ground 2 in relation to the issue under section 652 about valid reason, and ground 4 in relation to the question of reinstatement.

PN36

SENIOR DEPUTY PRESIDENT ACTON: Sorry, what was the first one again?

PN37

MS MORTIMER: Ground 2 in relation to the issue under section 652 about valid reason, and ground 4 in relation to the exercise of the Commission's powers under section 654(3), to order reinstatement. Those are two failure to make findings of fact kind of grounds and then the third category of grounds are those that appear in paragraphs 5 and 6 of the notice of appeal which raise the question of law about whether the learned Senior Deputy President understood, in our submission, the breadth of the concept of valid reason or whether his Honour impermissibly limited the consideration that he gave to that concept by reference to notions that stem from the common law concept of serious misconduct and the observations of his Honour Ross VP in Rose v Telstra.

PN38

Those are the three categories of grounds and in relation to the question of leave, if the Commission pleases, I don't propose to address that separately but we accept that the Commission must be satisfied that there are arguable errors and/or that it's in the public interest for these matters to be determined. We accept that the Commission's evaluation of our grounds ..... to answer that question of leave as well.

PN39

I draw the Commission's attention to the orders made by the learned Senior Deputy President which appear on page 5 of the appeal book and in particular just to order 4, which was made by consent, so that there presently is a stay over the other orders pending a hearing and determination of this appeal.

PN40

Can I take the Commission now briefly through the Senior Deputy President's decision before I turn to my oral submissions. The Senior Deputy President sets out the basic facts in terms of the dismissal at paragraph 2 and then moves at paragraph 3 to set out the reasons given by Telstra for Ms Streeter's termination at the time of her termination and the Commission will find that letter itself at page 410 of the appeal book. That's in volume 2, if I can ask the Commission to turn directly to that. The substance of the letter is actually at page 411.

PN41

As his Honour points out, if I can jump to paragraph 73 of the decision, in addition to the reasons given in that letter at page 411, the respondent also submitted that there were other matters in relation to Ms Streeter's conduct that went to justifying her termination so that there was a combination, and the Commission can get that combination at paragraph 73 and paragraph 3 of the decision of the matters that were put to the learned Senior Deputy President.

PN42

His Honour then goes on to set out what the applicant's case was at paragraph 4 and the Commission can see that what loomed large before his Honour but not here is the question of nexus to employment. That's plainly a very live issue. His Honour then recites the witnesses that appeared at paragraph 7 and then goes on to deal with the evidence and in this part of his Honour's decision it does a number of things, in our submission. His Honour recounts the evidence and generally it's fair to say, in our submission, does so accurately, that is not as we've said in our written submissions as comprehensively as perhaps we submit his Honour needed to to make some findings, but we don't quarrel with the accuracy of it in that sense.

PN43

His Honour appears to make some findings along the way in this part of his decision. I'm reminded by my learned junior that the recitation of the witnesses in paragraph 7 there is a witness missing - no, it's not, that's right, there is no witness missing.

PN44

What his Honour says at paragraph 8 assumes some importance from one of the issues on the appeal because it's this paragraph in combination with a subsequent paragraph, namely paragraph 145, where his Honour deals with the question of lying. I'll develop, when I come to that ground, why we say there are some errors that attach to how his Honour dealt with it, but the two paragraphs, just to identify them for the Commission where his Honour deals with that issue, is paragraph 8 and paragraph 145.

PN45

His Honour then goes on to recite the evidence before him, starts with the evidence of Ms Hyett and just to assist the Commission with cross-referencing, his Honour refers to exhibit T6, which is her statement, and the Commission will find that at appeal book page 952.

PN46

I'll give the Commission the appeal book references for each of the three other women employees whose evidence is relevant on one of the issues on appeal, but I don't propose to take the Commission to those statements. I do make this general submission and it is this, that each of them contain significant evidence, in our submission, about the impact of Ms Streeter's conduct and the conduct of others who were present on that evening, on them and that was not evidence that was the subject of any challenge in cross-examination in terms of the impact. We submit that that evidence was quite significant and although parts of it are extracted here, in parts of his Honour's decision, that question of impact did not end up forming, in our submission, any findings of fact by his Honour and which should have and that's really in relation to ground 1 of our appeal which I'll come to.

PN47

SENIOR DEPUTY PRESIDENT ACTON: That issue of impact was one you pressed?

PN48

MS MORTIMER: Yes.

PN49

SENIOR DEPUTY PRESIDENT ACTON: Going to valid reason.

PN50

MS MORTIMER: Going to valid reason, yes, but we are not able, your Honour, to say that it was at the forefront of our oral submissions or our written submissions, but it was pressed and it was a significant part of the evidence and in any event, in our submission, it is a mandatory consideration under section 652(3)(a) and I will develop why we say that.

PN51

His Honour then goes through, from paragraph 9 onwards, the evidence of
Ms Hyett, focusing particularly and quite properly on the aspects of the evidence that indicate a relationship with the employment and with the workplace and does that through to paragraph 12, then turns to Mr Forner's evidence which is at exhibit T8 and the Commission will find that at appeal book page 993. When his Honour deals with Mr Forner's evidence through paragraphs 13 to 19, that's really dealing with what we have characterised in our outline of submissions to the Commission as the first incident.

PN52

Then from paragraph 20 onwards his Honour deals with Ms Andrews' evidence and there's a reference to exhibit T9 which the Commission will find at appeal book 996. At paragraph 25, over the page, page 10, that's where his Honour recites what really constitutes and is characterised, in our submissions, as the second incident. Then at paragraph 28 is the beginning of some of the evidence about what we have called the seventh incident .

PN53

SENIOR DEPUTY PRESIDENT ACTON: Sorry, what paragraph is that?

PN54

MS MORTIMER: 28. At paragraph 32, that's where his Honour deals with the evidence which covers what we have characterised as the fourth and
fifth incidents, essentially what was happening in the bathroom and thereafter. Then at paragraph 39 that's what we've characterised as the sixth incident. Paragraph 41 will assume some importance, and I'll return to that, in relation to one of our grounds about whether this constitutes a failure to make a finding or, as we understand our learned friend's submissions on this appeal, a quite proper refusal to make a finding because the evidence was unsatisfactory. I will return to that when I get to the grounds.

PN55

Then his Honour completes the recitation of the facts of that evening and the next morning over the page at page 12 in paragraphs 42 and 43 and then moves on to the investigation. I just pause there to make this submission, that it is apparent in our submission in that recitation of the evidence that there is no reference to the third incident at all so that is the beginning of what we submit is a fairly plain error in terms of failure to make findings of fact.

PN56

His Honour then goes through the investigation process and what was put to Ms Streeter during that process and then turns to the applicant's submissions and to the respondent's submissions, which I don't cause to take the Commission through in any detail, other than again to point out - I've already pointed out to the Commission paragraph 73 and can I also draw the Commission's attention to paragraph 98 and 99, but 98 in particular where it was plainly put to the Commission and, we submit, understood by the Commission, that breach of policies was a reason to be considered both, in our submission, singly and cumulative in assessing whether there was a valid reason. We make the same submission in relation to paragraph 111 in relation to what was put on behalf of the appellant about Ms Streeter's alleged dishonesty.

PN57

His Honour then turns at paragraph 112 to consideration of the issues and we accept in paragraphs 112, 113 and 114 correctly sets out what his Honour's task is and turns in paragraph 115 to the question of nexus and spends some time discussing that and that is that that consideration and the findings his Honour makes about that are not challenged on this appeal.

PN58

At paragraph 122 his Honour turns to what his Honour describes as the need to characterise Ms Streeter's conduct and focuses on the allegations of sexual harassment and deals with those and then in paragraph 126 makes a finding in relation to the first incident about sexual harassment, but finds that it's of a minor nature. We don't attack that finding because there's no construction issue that arises in relation to that finding, but it's when his Honour moves onto the next couple of pieces of conduct that in our submission there is a construction issue which arises and that appears in his Honour's reasons at paragraph 128 where, having described some of the conduct, his Honour says it's hardly conduct "in relation to" Ms Hyett, then goes onto another incident and the way that a particular submission that was put before his Honour, which is not pressed on appeal, and it comes back to the meaning of that phrase "in relation to" at paragraph 133 and again poses the question we accept, if the Commission pleases, the correct question a much harder issue to determine whether the conduct was in relation to those three employees and we accept that that's a question that needed to be asked and answered for the purposes of section 28 of the SDA.

PN59

His Honour then turns to a decision from the New South Wales
Anti-Discrimination Tribunal and relies on that to make the statement that appears - I'm grateful to my friend, the New South Wales Administrative Decisions Tribunal, I apologise for that - relies on that decision to make the finding at paragraph 135 and that's really the construction which we attack in ground 3 on this appeal. I'll develop the submission when I come to that ground, but in substance, the submission is that that is a misconstruction of section 28(1)(b), that it's unduly narrow and it's inconsistent with decisions in the federal arena about the SDA and if Carter v Linuki stands for it, it's irrelevant. It doesn't deal with the SDA and there are plenty of cases, in our submission, dealing with the SDA that don't adopt that kind of narrow approach.

PN60

His Honour then goes on to express a conclusion on that question about "in relation to" at paragraph 141 and then turns to the question of the allegations about Ms Streeter's lies and begins that with, "This leaves the issue of" having in our submission, with respect to his Honour, again failed to deal with the third incident at all.

PN61

SENIOR DEPUTY PRESIDENT ACTON: I'm sorry, where is "this leaves", which paragraph?

PN62

MS MORTIMER: Paragraph 142, your Honour. Then deals with the question of the significance of the lies that Ms Streeter admitted telling and reaches a conclusion about that at paragraph 145 which, in our submission, is again effected by error because there is a failure to make findings about the nature and extent of the lying and I'll develop that in a moment.

PN63

In conclusion, his Honour then poses the question for himself at paragraph 147, was Ms Streeter's conduct so bad that it constituted a valid reason and we have placed some emphasis in our written submissions on that question as in substance asking the wrong question by focusing on the need - by narrowing the concept of valid reason down to really that particular question, was the employee's conduct so bad, which, in our submission, does hark back to the common law concept of serious misconduct. I should also draw the Commission's attention to
paragraph 146, which is of some importance because that is the sum total of the findings by his Honour about impact on other employees, that last sentence in paragraph 146.

PN64

His Honour then goes on to make an observation which we accept he was entitled to make about the way the respondent's submissions were developed and comes back to this question of serious misconduct at paragraph 150, re-emphasising in a different way, we would submit, the question posed at paragraph 147 and comes to a conclusion in paragraph 150 but without, in our submission, making findings, for example, about breach of policies or findings, for example, about the legal impact on other employees.

PN65

His Honour then turns to other matters in section 652(3) and again those are not contentious issues on the appeal, and then turns to the question of remedy, sets out the relevant provisions and his Honour's reasoning about this appears to start at - well, there's a recitation of the evidence starting at paragraph 154 and we take it that by extracting that particular question in cross-examination at paragraph 155 his Honour places some emphasis on that answer and it may be that that has informed his Honour's view, and this is, we accept, a bit of an inference, that Ms Streeter was entitled to that opinion and therefore she ought to be reinstated.

PN66

His Honour's substantive finding appears at paragraph 157 and the question of difficulties going back to the particular store is dealt with at paragraph 158 but again, in our submission, and this is really ground 4 of our notice of appeal, there's no fact finding whatsoever about the question squarely raised, in our submission, by the appellant before his Honour of the extent of Ms Streeter's dishonesty and how, if at all, that affects the relationship of trust and confidence between the employer and the employee which, we submit, was a relevant matter in determining reinstatement.

PN67

I pause to emphasise here, really in response to something that's put against us by the respondent in this appeal, it's said by the respondent in her oral submissions that Telstra seeks to really re-agitate the merits of this decision before the Commission and that's all. If I can just outline for the Commission in broad compass what our response to that is, it is true that several of our grounds do revolve around factual issues because they deal with failures to make findings, but we do not submit that there was only one answer to those findings and we need not do so to make out error.

PN68

The question of what ought to have been found on the evidence about those matters which we submit about which there were no findings, is a matter for the Commission and it is our position on this appeal that because of the nature of the allegations and the contests on the evidence, it's likely to be inappropriate for those findings to be made on appeal because they do involve the assessment of witnesses and the assessment of credibilities and they may involve, because of the way that Telstra has put its case, serious findings which ought not to be made without hearing the witnesses. It's certainly not the case that we are submitting that there was only one answer to the fact finding which we said was not engaged upon, but we submit the error lies in not engaging in the exercise at all and that those facts that were not found were sufficiently material, and I'll develop that in a moment, that they needed to be found and if that is the case, then in our submission it is inevitable that the matter needs to be reheard and the real question is by whom, and we do not press that it would be appropriate for it to be dealt with on appeal because of the central role the credibilities might play.

PN69

That's in general our response to what's said by the respondent about our appeal being nothing more than an opportunity to re-agitate the merits.

PN70

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Excuse, Ms Mortimer, do I understand you correctly, you referred to paragraph 158 and said there was no finding on the extent of dishonesty and how that affects your relationship with trust. Did I understand you correctly?

PN71

MS MORTIMER: Yes.

PN72

SENIOR DEPUTY PRESIDENT CARTWRIGHT: There was a finding in paragraph 145. Isn't it to be read as that's a subject that the Senior Deputy President has already dealt with?

PN73

MS MORTIMER: It's certainly dealt with, your Honour, in relation to valid reason. We accept that.

PN74

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I see, so your argument is specific to the remedy.

PN75

MS MORTIMER: That's right.

PN76

SENIOR DEPUTY PRESIDENT CARTWRIGHT: But having already made that finding, isn't it sort of taken as read that that finding would carry over and apply .....

PN77

MS MORTIMER: Your Honour, in our submission, again it really is a matter for evidence but the considerations, in our submission, might be quite different, that whether the Commission is persuaded that it is appropriate, to use the language of the statute, to in a sense force the employer and the employee to continue to work together, even though the Commission has been satisfied that the level of dishonesty was not of a character that justified termination and they are, in our submission, two different factual inquiries at two different stages. That's really how that argument was put.

PN78

SENIOR DEPUTY PRESIDENT ACTON: Ms Mortimer, can I just make sure that I understand your submissions immediately prior to the question. You're saying that if there's to be a rehearing, it should be remitted to Hamberger SDP or another individual member rather than be heard by the Full Bench?

PN79

MS MORTIMER: Another individual member. That is because we frankly concede that it would be not only difficult but likely to be inappropriate for - given the nature of the case that is made out by the employer in this situation for the Full Bench to embark upon a consideration in fact finding in relation to allegations of dishonesty in circumstances where it has not heard the witnesses and where the evidence is hotly contested on various versions of events.

PN80

SENIOR DEPUTY PRESIDENT ACTON: Do you envisage that would involve a total rehearing, in other words hearing the evidence again?

PN81

MS MORTIMER: If it was before a new Commissioner it would be a matter, in our submission, for the parties and the Commissioner to decide what would be the most efficient way to conduct it. It may be that the entirety of the evidence does not have to be reheard but that only critical parts do.

PN82

SENIOR DEPUTY PRESIDENT ACTON: What do you say you think would have to happen?

PN83

MS MORTIMER: Without pre-empting the view that a Commissioner might take of that, your Honour - - -

PN84

SENIOR DEPUTY PRESIDENT ACTON: I'm asking for your submission on it.

PN85

MS MORTIMER: Yes. My submission is that it's likely, again depending on the attitude of the parties, to be able to be conducted without a full rehearing, but because there are certain aspects that have now been exposed as critical, it's a common problem, in my submission, your Honour, in many jurisdictions on a rehearing that it requires a modicum of goodwill from both parties and sensible approaches and in my submission it can be done in a way that certainly is not necessarily a full-blown rehearing, wiping the slate clean as if nothing had ever happened. It may be that, and in my submission often is the case, parties having been through the exercise once, are able to be perhaps less - I'll withdraw that - more scope for agreement about what is not in dispute any longer and what is still in dispute.

PN86

If I can turn to the grounds and I'm going to take them in the order that they appear in the notice of appeal and turn to ground 1 first. This is a ground that depends almost entirely, in our submission, on a proper construction of section 652(3)(a) read with the introductory words to subsection (a). The proposition for which we contend is that however the introductory words in that subsection are read, it plainly requires the Commission to have regard to the effect of the employee's conduct on the safety and welfare of other employees. That, in our submission, is what it says, the Commission must have regard to whether there was a valid reason related to the employee's capacity or conduct (including its effect). Now, the "its" in that sentence means, in our submission, including the effect of the conduct, the effect of the employee's conduct on the safety and welfare of other employees.

PN87

On a plain reading, the statute requires the Commission must have regard to. The use of the word "including" makes it plain, in our submission, that that is not all the Commission is entitled to have regard to when looking at capacity and conduct but that is something that the parliament has seen fit to specify and, in our submission, that is important.

PN88

As we understand it, what's put against us on this ground is that in paragraph 3 of the respondent's submissions, is that the words in brackets are somehow definitional. That's the first submission that's put against us and in our submission that really doesn't matter. You can call it definitional if you want to, it doesn't alter the plain meaning of the Act as I've submitted to the Commission.

PN89

The second matter that's put against us by the respondent on this ground is that because the language the parliament has chosen is safety and welfare, not safety or welfare, that it is impermissible to simply concentrate, as we accept we do, on one of those two words and not the other. In our submission they are used by the parliament in this particular context, not as a single concept but as two considerations that, depending on the facts, will be more or less important. On some factual situations, the effect of an employee's conduct on the safety of other employees will be important and in some circumstances the effect of an employee's conduct on the welfare of other employees will be important and all that the "and" means, in our submission, is that the parliament has seen fit to say expressly that both of those things are important. In a sense it matters not, in our submission, as the respondent submits, how one characterises the welfare of employees and whether that gets into what the respondent calls ephemeral issues. That's the language that parliament has used, in our submission, and it is that which binds the Commission.

PN90

We've dealt in our written submissions with this issue in terms of the evidence at paragraphs 3.4 to 3.7 and at footnote 3 and I don't propose to take the Commission in any detail to that, just to draw that to the Commission's attention.

PN91

It was plainly part of the appellant's case before the Commission that there was an impact and we rely on these references and I'll give the Commission these references and take the Commission to one in particular. Appeal book 103, paragraphs 37 to 45, that's in closing written submissions, and also at
paragraphs 153 or 154 at appeal book page 135. Then most clearly in oral submissions, if I can take the Commission to this at appeal book page 385, that's in volume 2, appeal book 385 PN2841 - - -

PN92

SENIOR DEPUTY PRESIDENT ACTON: Sorry, PN?

PN93

MS MORTIMER: 2841, about the middle of the page where my learned junior submitted to his Honour:

PN94

That the impact this conduct has had on others we find it extraordinary the applicant would suggest termination ...(reads)... rights of other employees with whom she worked.

PN95

In our submission that's a submission that summarises in short compass the evidence given by each of those three employees in their witness statements which was not contradicted.

PN96

We submit it cannot be said that the Commission was not aware, firstly in an evidentiary sense, of the impact of Ms Streeter's behaviour on the other employees that were there that night, and secondly, it cannot be said, in our submission, that it was not squarely put to the Commission that that was a matter it should consider when looking at valid reason.

PN97

SENIOR DEPUTY PRESIDENT ACTON: In terms of the impact on the employees in the evidence you refer to, is that the evidence you've gone to paragraphs 3.6, 3.7 of your written submissions?

PN98

MS MORTIMER: It's dealt with particularly in relation to Ms Andrews in footnote 3 and then 3.6 and 3.7 but in footnote 3 we also gave references to Ms Hyett's evidence and Ms Barrett's evidence so we've attempted to summarise out of the witness statements that I've referred the Commission to what the evidence was.

PN99

Again, on this ground, in our submission - no, I withdraws that. I'll just complete one other aspect of the submissions before I finish this off. The closest the learned Senior Deputy President gets to making a finding about this is what appears at paragraph 146 of his Honour's reasons. That is a finding, in our submission, which does no more than characterise the conduct by the use of two adjectives but it does not answer, in our submission, the question posed by subsection (a) which is the effect of the conduct on the welfare of the employees .

PN100

COMMISSIONER LARKIN: Ms Mortimer, was that specific argument put to his Honour at all in the references you put to the Full Bench?

PN101

MS MORTIMER: Not as I'm putting it here, no, it was not.

PN102

COMMISSIONER LARKIN: So while there were submissions in regard to that evidence in regard to the impact on the other employees, it was not put to his Honour that that impact is relevant to a determination of the question posed in section 652(3)(a)?

PN103

MS MORTIMER: Not in those terms, Commissioner. That is absolutely right, in our submission. That is because the statute requires it to be done and - - -

PN104

COMMISSIONER LARKIN: I don't quibble with that.

PN105

MS MORTIMER: - - - the employer had made, in our submission, the evidentiary foundation for it.

PN106

COMMISSIONER LARKIN: Yes, but it hadn't tidied up as in ..... what we're referring to, welfare - - -

PN107

MS MORTIMER: That's so. There was no direct connection with that language in the statute by way of oral submissions. I don't seek to suggest there was.

PN108

COMMISSIONER LARKIN: Yes. I thought it may have been somewhere in the references you put to the Full Bench.

PN109

MS MORTIMER: I'm sure if it was, we would have liked to dig it up but no, I can't say that.

PN110

SENIOR DEPUTY PRESIDENT ACTON: Just in terms of the evidence of that impact, the footnote reference goes to what might be described as a lot of evidence about immediate impact, anger, et cetera, embarrassment and so on. There's a reference to Ms Hyett saying:

PN111

If I had a choice I'd rather not work with her.

PN112

Then there's Ms Andrews' evidence about the difficulty she had getting to work the next day and the difficulty she had the next day at work. Is there evidence that went beyond that in terms of impact about the working relationship between the employees?

PN113

MS MORTIMER: Your Honour, in terms of whether any of the employees said they didn't want to go back to work with her or anything like that, other than the references we've got - - -

PN114

SENIOR DEPUTY PRESIDENT ACTON: Of that nature.

PN115

MS MORTIMER: My learned junior is nodding, so perhaps if I can follow that up in terms of whether there was.

PN116

SENIOR DEPUTY PRESIDENT ACTON: Yes, certainly. I'm just interested in how far you take this impact argument.

PN117

MS MORTIMER: The point of it being, in our submission, in subparagraph (a), is that where, for example, the employee's conduct has an effect that includes matters such as humiliation of other employees, then taking the employees' interests in a global sense and the employer's obligations to those other employees into account, in our submission it is the kind of thing which the statute recognises may well justify termination because there is an effect on other employees, not just because of a working relationship issue between the employee and other employees but also because of the ripples of effect of the employee's conduct. If there's no such flow-on effect, then that's not a consideration in the statute in a particular factual situation that might be important but if there is some kind of flow-on effect, then in our submission, what the statute recognises is that other employees who are not otherwise involved in alleged misconduct but are affected by it, that an employer is entitled to take their interests into account and that ought to be looked at in terms of what may or may not be a valid reason.

PN118

SENIOR DEPUTY PRESIDENT ACTON: I understand that you put it, what might be described as that more distant element. I'm interested in how much evidence there was on what might be regarded as a more direct effect. Let me give an example of what might be regarded as a more direct effect. Two employees totally out of work, walking down the street and one employee assaults the other employee for no reasons associated with work which leads the employee who's been assaulted to appear working with the other employee. That might be regarded as a more direct impact in terms of the work environment to the one I understand you're going to. I'm just interested in whether there was any evidence of that more direct effect on the working relationship.

PN119

MS MORTIMER: If there is, your Honour, we will give your Honour the references.

PN120

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Mr Forner concluded his opinion in his witness statement, which is on page 995, final paragraph of his witness statement.

PN121

MS MORTIMER: Yes, that's so, your Honour, and that may well be one of the references that my learned junior had in mind.

PN122

SENIOR DEPUTY PRESIDENT CARTWRIGHT: That was his assessment.

PN123

MS MORTIMER: Yes, and we'll need to check whether he was cross-examined on it. We will check, if the Commission pleases, whether that was challenged in cross-examination and the questions and references for that. That completes all I wish to say by way of - - -

PN124

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I don't recall it being challenged on cross-examination.

PN125

MS MORTIMER: I don't think that Mr Forner was cross-examined very extensively.

PN126

SENIOR DEPUTY PRESIDENT CARTWRIGHT: No, that's my recollection.

PN127

MS MORTIMER: If we can deal with it now while it's fresh in everyone's mind. The cross-examination appears at page 309 of the appeal book and following and he does not appear to have been cross-examined on that statement.

PN128

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I don't recall it being an issue that that was in the nature of opinion evidence by Mr Forner.

PN129

MS MORTIMER: No, there was no objection taken on that basis and Mr Forner was, of course, the assistant manager at the store.

PN130

If I might move to the second ground, if the Commission pleases. Ground 2 is as I've described it the ground that deals with failure to make certain findings of fact and our submission is that there were a number of material questions of facts which were not the subject of findings and they are those that we have identified in paragraph 8(d) of the notice of appeal. Our broad submission is this, if the Commission pleases, in order lawfully to discharge its statutory task under section 652, the Commission was required at least to address all matters advanced by the employer as valid reasons for the termination of employment. When we make that submission we mean all matters in substance and, as we said in our written submissions here, there were seven incidents advanced that were characterised in a number of different ways and we have set that out in our submissions on this appeal at paragraphs 1.4, the incidents, and then the way that Telstra characterised that is at 1.6.

PN131

That's the way the employer presented to the Commission its case for why it had a valid reason to terminate Ms Streeter's employment and our submission is that the employer, having advanced factual matters as constituting valid reasons, those matters having been contested by the employee as not being valid reasons, those questions were material in a legal sense and required the Commission to determine them on the evidence.

PN132

The outcome of that determination, as I've already submitted to the Commission, was a matter for the decision-maker once that task had been embarked upon and it need not, in our submission, form any part of this appeal for Telstra to have to persuade the Commission on appeal that a particular outcome needed to be reached, nor is it relevant, in our submission, for the respondent to persuade this Commission on appeal that a particular outcome could not be reached. The Commission is required to engage in some fact finding and didn't and that's the error which needs to be corrected either by a full rehearing on appeal or by remitter.

PN133

The authorities that we rely on to support the propositions, I want to take the Commission to two and we've handed up I think two folders of authorities - they perhaps haven't quite made their way right up yet. We haven't handed them up. I'm optimistic that I won't have to ask the Commission to turn to each and every one of these. The first authority in relation to this ground is the decision in GrainCorp which the Commission will find behind tab 7. This was a sexual harassment case and it's a case which, if I can just digress sideways if the Commission pleases into our sexual harassment ground, it's a case in which if the Commission turns to paragraph 37, it can be seen that the decision of the Federal Magistrate's Court in Johanson v Blackledge was adopted and proved and that's one that we rely on and one that I'll return to when I get to the sexual harassment ground.

PN134

For the moment, what we rely on is the proposition at paragraph 19 and it's really just that very last sentence in paragraph 19 that we rely on. Of course, in our submission, what is a material question on any given application will vary but the point is that it was plainly recognised in that sentence that failure to determine a matter that needed to be determined amounted to an error.

PN135

A similar approach can be found in the case of Cruickshank, which is behind tab 4 in the folder, a decision of the Full Bench of the Commission at paragraph 30. This was, we accept, perhaps - - -

PN136

SENIOR DEPUTY PRESIDENT ACTON: Sorry, Ms Mortimer, tab 4?

PN137

MS MORTIMER: Perhaps it's tab 3, I apologise. This was a case that challenged the original decision on the basis of reasons and I'm going to make some submissions about that in a moment because there is a slight difference and I want to make our submissions clear on that. This was, we accept, perhaps a more extreme example, judging from the judgement of the Commission, but at paragraph 30 what is said is this:

PN138

It is clear that there were conflicts in the evidence which were required to be resolved by the exercise of judgment and by the apportionment of relative weight to the evidence and material before the Commission.

PN139

We, with respect, adopt that as the correct approach and that's exactly what we submit was the situation here:

PN140

While the Commissioner made some findings he made no intermediate findings. He moved directly to the overall conclusion that the termination of employment was not a sham and the appellant was not targeted inappropriately.

PN141

It certainly can't be our case and it is not our case that there were no intermediate findings made but that, in our submission, is really just a distinction which will depend on the nature of the case before the Commission. The kind of intermediate findings which needed to be made here along the way to the conclusion whether there was or was not a valid reason, were findings on each of the matters, in our submission, that the employer put forward as constituting separately or together a valid reason because that was the employer's case and that was the case that was answered and dealt with on the evidence before the Commission. In our submission, each of the matters needed to be addressed and what we've identified as .....

PN142

SENIOR DEPUTY PRESIDENT CARTWRIGHT: When you say the matters, are you referring to the list in paragraph 1.6 of the submissions ..... what constituted valid reasons or are you referring to the incidents?

PN143

MS MORTIMER: It's really both, in our submission, that is - and if I can take an example and ask the Commission to turn to paragraph 1.6.

PN144

SENIOR DEPUTY PRESIDENT ACTON: This is of A2?

PN145

MS MORTIMER: Yes, your Honour. It was put that the conduct was inappropriate, that it constituted a breach of policies, that it constituted sexual harassment. The conduct, in our submission, was the conduct identified in paragraph 1.4 so in order for the Commission to be able to decide on the evidence whether the conduct constituted sexual harassment, findings needed to be made at a sufficient level of particularity that enabled the Commission to perform that function.

PN146

There were some occasions and there are some occasions to which we point where there's a failure to make any findings about an issue in 1.6 and (b) is an example. The question of breach of policies is just not dealt with at all. By itself it might have had very little weight. Together with other factors it may have had more and that was a matter for the Commissioner but there were also examples, and 1.4(c) is one of them, the third incident, of no findings of fact being made about something that was put squarely in issue as a piece of conduct that was relied on to form part of the valid reason for termination.

PN147

That may be an unsatisfactory answer to your Honour's question but it is a combination of failures to make findings on some of those specific incidents and then failures to make findings on some of what was advanced as reasons flowing from those incidents. It's really in that sense, in our submission, that the Commission in Cruickshank is talking about intermediate findings. It's those very kind of issues which will differ from case to case which, in our submission, need to be the subject of findings.

PN148

If I can turn to what's put by the respondent against us in relation to this issue, at particularly paragraph 1.6 of the respondent's submissions. The error that we identify is not a failure to give reasons. That's not the error that we identify and the vexed question of whether a failure to give reasons, firstly in a court, and secondly, in a tribunal exercising administrative or some other kind of power that is an error of law, is not one that needs to be addressed, in our submission. The question is more simple than that and it is what are the questions of fact which are material to the discharge of the statutory tasks and a conclusion about valid reason or the existence of it or the non-existence of it, will not, in our submission, satisfy that in any circumstance because it does not establish that the decision-maker has turned his or her mind to the considerations of fact and law that go to making up that conclusion. That's why the language of intermediate findings, in our submission, is very appropriate.

PN149

I might come back to the cases that our learned friends rely on in paragraph 1.6 in reply once I've heard how my learned friend Mr Hatcher develops that submission, but in substance what we say is that those authorities really support our propositions and don't detract from them because each of those cases, particularly Britax and Harvey, accept that there will be findings that are critical or material in a decision-making process that need to be made.

PN150

Turning to how we say in relation to each of those four matters that we've identified in ground 2, if I can start with ground 2(a) and perhaps I'll do this by reference to our written submission, if I might. We deal with that at paragraphs 4.3 to 4.5 of our written submissions.

PN151

SENIOR DEPUTY PRESIDENT ACTON: This is the matter on which we've issued the order?

PN152

MS MORTIMER: Yes, your Honour, and I'm not going to develop it. We've said what we really want to say in writing and I've taken the Commission to the reasons. It's plain it's not mentioned. The only question is whether it was material and needed to be the subject of a finding and our submission on that is short and it is that it was squarely put forward as one of the seven incidents that justified Ms Streeter's termination in terms of her conduct.

PN153

(b) and (c) we deal with those in paragraphs 4.6 and 4.7 and particularly 4.7 and this is what his Honour deals with at paragraph 140 - no, I withdraw that, at paragraph 41 of his Honour's reasons. It is true in that paragraph that his Honour begins the discussion of the evidence by noting there are discrepancies and goes on to say what his Honour thinks they are and then declines to make a finding. The respondent seeks to characterise that in paragraph 9 as an expressed finding by the learned Deputy President that he could not make a finding of fact that this evidence was so unsatisfactory.

PN154

In our submission, that is not what the learned Deputy President says and it does involve, with great respect to our learned friend, some rewriting of the decision to get to that, and certainly the evidence that the respondent seeks to rely on in its submissions to support that argument, the Commission will find nowhere in the learned Deputy President's reasons, so one can't on an appeal, in our submission, in answer to an attack of this kind, attempt to rewrite the decision and then support it by reference to a whole lot of evidence that was not the subject of findings by the Commissioner. That's the wrong approach.

PN155

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Isn't it a case where he's made findings on another like incident and in going through and analysing the position, finds that that like incident doesn't contribute to valid reason. Is it not necessary to deal with the second one? Isn't that the way the decision is to be read?

PN156

MS MORTIMER: No, your Honour, that it's the subject of a finding that it's not valid reason.

PN157

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes, that's why I - - -

PN158

MS MORTIMER: Certainly that first incident is the subject of a finding that it's not sexual harassment and therefore couldn't constitute a valid reason. That's right.

PN159

SENIOR DEPUTY PRESIDENT CARTWRIGHT: In a sense he says, "Well, look if the one is not sexual harassment, then I don't need to deal with the other because it doesn't add anything."

PN160

MS MORTIMER: On that issue and on the question of in relation to, we accept that there's no material difference between the two issues and that if his Honour was right on his construction of the SDA on that issue for one incident, he'll be right on it for the other incident. We accept that but that wasn't, in our submission, the sum total of how the employer put the relevance of the incident. It wasn't simply put that that conduct with two different individuals constituted sexual harassment, full stop, and that was the only relevance, but it was put that the other employees had to witness that conduct with two different individuals and the disrespect and the embarrassment that they say they suffered because of it being repeated with two different individuals because if there was a breach of policy, it was in respect of two different acts with two different individuals.

PN161

It's a question of the magnitude of the conduct. If it's only found to have happened once, that might be one thing. If it's found to have happened twice with two different people, that might be another thing. That's a question of fact but it's not a matter, in our submission, on which the Commissioner was entitled to decline to make a finding but it was squarely put in issue. If his Honour had said, "I don't see any material difference. I don't think the fact that it's with two people rather than one or on two different occasions rather than one, elevates the seriousness of it," his Honour had gone into that kind of analysis, then we would have no complaint but simply to shut it out, it having been relied on, is what we say was the .....

PN162

SENIOR DEPUTY PRESIDENT CARTWRIGHT: The point at issue was the identity of the person and the decision is really to be read in that context wherein he says, "I decline to make a finding of the identify of the person." He doesn't quite say it in those terms but that's what's going on, surely.

PN163

MS MORTIMER: In my submission his Honour declines to make a finding on whether the incident occurred. The other issue that must be remembered, in my submission, is that the question of Ms Streeter's honesty in her account of these two incidents was hotly in contest because by the time she came before the Commission she had admitted one and continued to deny the other so that whether this incident occurred was of central relevance in the evaluation of the extent of her honesty and so for the Commission to say that it has little bearing on the key matters that need to be determined, misunderstands, with great respect, the importance of deciding what happened and who was to be believed, to what had become a very important component of Telstra's case and that is that Ms Streeter had a high level of dishonesty about her conduct. It was very relevant in that context.

PN164

SENIOR DEPUTY PRESIDENT CARTWRIGHT: It's not so much critical to the sexual harassment denial but to the .....

PN165

MS MORTIMER: It's certainly very critical to that and if we are right and there's an error about his Honour 's approach to sexual harassment, then in our submission the question whether there was sexual harassment flowing from two incidents rather than one, might be material, might well be and that's why it's really the failure to engage in that exercise that is what we complain about.

PN166

2(d) in the notice of appeal is dealt with, in our submission, at paragraphs 4.8 to 4.26, so it's dealt with very extensively in our written submissions and I'll try not to repeat what we've got there, but there's really two limbs to this argument about failure to make findings. The first limb, we'd say, was that there was a failure to make findings about the extent of Ms Streeter's dishonesty, and we deal with that at paragraphs 4.8 to 4.16; secondly, that there was a failure to make sufficiently detailed findings about the totality of Ms Streeter's behaviour, particularly in the bathroom in the hotel and we deal with paragraphs 4.17, 4.20 and 4.26. I'll take each of those limbs, if I may and say something briefly in oral submissions about them.

PN167

Although it is true to say that paragraph 145 of his Honour's reasons that there are some findings about the extent of Ms Streeter's alleged dishonesty. What the appellant complains about is that that is a finding of a very limited nature that did not really address the way that Telstra put the question of Ms Streeter's dishonesty. That is because when the matter came to be heard and determined by the Commission, there was a plain conflict on the evidence in relation to a number of incidents where the allegation by the employer was that X occurred and Ms Streeter's response to that in evidence was to deny it so that the finding that her recollection was hazy or that she was embarrassed or - all those sorts of things which might, we accept, be exculpatory of some of what she had admitted to have done, did not address the issue that was strongly pressed by the employer, that there was a head-on conflict in relation to some of these incidents, a credibility conflict, head-on, and where the Commissioner determined to accept one version of events, like the first incident, Mr Forner, where there was an express denial by Ms Streeter that it happened and an assertion on the evidence by the appellant that it did and his Honour preferred the appellant's evidence, Mr Forner's evidence on that.

PN168

That is an example, in our submission, where inevitably that involves a credibility finding against Ms Streeter and that is the way that the appellant submitted to his Honour that the case needed to be approached, particularly when it comes to looking at reinstatement and looking at the levels of dishonesty which the employer alleges have been shown and whether reinstatement is appropriate. That was the employer's case before the Commission and in our submission, to isolate some of the evidence about dishonesty, which we accept went to poor recollection and then not to deal with other issues, is really again a failure to engage in the task that needed to be undertaken.

PN169

COMMISSIONER LARKIN: Is the submission, Ms Mortimer, that if his Honour accepted or declined to accept the applicant's evidence and it was disputed by another witness and he preferred the evidence of the other witness, is the submission therefore that must have put into doubt all her other evidence in his mind and therefore, where there was a conflict, he should have accepted the Telstra witnesses as opposed to the applicant's. Is that the submission?

PN170

MS MORTIMER: No, Commissioner. The submission is that in a case like this where I think, as one of our learned friends characterised it to the Commission, it started off as a case about misconduct and it's become a case about lying, there is no doubt, in our submission, when one looks at the development of this at trial before the Commissioner, that the employer relied very heavily on the issue of lying both in the investigation stage to justify valid reason, and then as a general submission in relation to its case on this employee's honesty in relation to reinstatement and remedy.

PN171

That being the case, in our submission, it was incumbent on the Commission to really make quite detailed findings about the circumstances because that's what was put to the Commission. If the Commission goes through the written submissions by Telstra in this, your Honours will see very detailed recitations of the evidence which supports the submission in each and every case that this was lie or that was lie or this was a lie. It was put squarely and very forcefully in that sense.

PN172

That being such a critical part of the employer's case, it was a matter, in our submission, that the Commission needed to resolve and couldn't really avoid by simply looking at some of the circumstances in which Ms Streeter accepted that she had lied and viewing them in an exculpatory way, which may in those circumstances have been entirely justified but what needed to be squarely confronted by the Commission and what was not, in our submission, is the broader and more particular times at which, in her evidence, Telstra identified in its submissions that she was lying and asked the Commission to take that into account.

PN173

The Commission may not have agreed with Telstra and perhaps a fair reading of the reasons suggests the Commission may well not have agreed with the level at which Telstra put it, but the Commission was obliged to deal with it - - -

PN174

COMMISSIONER LARKIN: On the merits. My apologies.

PN175

MS MORTIMER: I'm sorry, Commissioner.

PN176

COMMISSIONER LARKIN: No, no, I interrupted you. You say what is outlined in his Honour's decision at paragraph 145 is insufficient.

PN177

MS MORTIMER: Is insufficient.

PN178

COMMISSIONER LARKIN: It's not that his Honour didn't deal with the issue of dishonesty, but your submission is that the manner in which it was dealt with is insufficient.

PN179

MS MORTIMER: Precisely.

PN180

COMMISSIONER LARKIN: Thank you.

PN181

MS MORTIMER: If I can turn now to ground 3 which is the ground about sexual harassment. This is dealt with in our outline of submissions at paragraphs 5.1 to 5.13 and the general proposition is this, if the Commission pleases, that the learned Deputy President erred in his construction of section 28(1)(b) of the Sex Discrimination Act. I'm going to take the Commission to that in a moment but it's that provision which we identify as the one that has been misconstrued, 28(1)(b) and that his Honour adopted an unduly narrow construction which caused his approach to the question whether Ms Streeter's conduct constituted sexual harassment to miscarry.

PN182

I've taken the Commission to those parts of his Honour's reasons where his Honour deals with it. It starts at paragraph 128 on page 25 of the appeal book but the key parts I think I took the Commission to in opening is paragraph 135. That's where we say the wrong construction is applied, that essentially "in relation to" his Honour finds means - conduct in relation to means conduct done with that person in mind or that has a connection with that person and if I might take them separately because they are, in my submission, different.

PN183

It's really the first of those two formulations, conduct done with that person in mind, which constitutes, in our submission, a very significant narrowing of the scope of the sexual harassment provisions in the Sex Discrimination Act, construes those words "in relation to" as meaning that the perpetrator must have a particular person in mind at the time the perpetrator engages in the conduct and we say that's an unwarranted narrowing of the scope of the section and I'll develop that in a moment.

PN184

His Honour identifies the second formulation and it is that the conduct must have a connection with that person. That is a proposition, freestanding, might not be objectionable, we accept because I'll take the Commission to some of the authorities about "in relation to" but there is no doubt on those authorities, in our submission, that the phrase "in relation to" does require the identification of a relationship between one thing and another and so to the use language of connection might not in and of itself be problematic. When one looks, in our submission, at what the learned Senior Deputy President did in applying it, it's apparent that his Honour was really focusing on the first part of the formulation, having the person in mind.

PN185

That is most apparent, in our submission, in paragraph 141 of the reasons where his Honour says that in substance, in our submission, that physical proximity is not enough, that the production of an effect on someone is not enough, but that something more than that had to happen and the something more, read fairly in our submission, really means, as his Honour says at paragraph 35, that unless it can be established that Ms Streeter had each of these other women in mind when she was engaging in this particular conduct, the conduct won't be in relation to it.

PN186

His Honour then goes on to say in the alternative in that paragraph, that even if it were considered sexual harassment, it was only of the most indirect kind. The use of that word "indirect" in our submission, really points up the error because section 28(1)(b) in our submission, is really all about indirect conduct just as it is about direct conduct. It's a section that is intended to be very broad in its application so the fact that conduct is indirect should not, on a proper construction of the SDA involve some downgrading of the seriousness of sexual harassment.

PN187

If I can ask the Commission to turn to the SDA which is behind tab 17 in our list of authorities. Division 3 of Part II about sexual harassment is on page 30 of the reprint and as the Commission is no doubt aware, the way that the parliament has chosen to deal with sexual harassment is to give a definition of the conduct in section 28A and then to impose a series of prohibitions on certain areas of activity, having given that definition. The areas of activity in section 28B are for the purposes of this case, the relevant ones. I might make a couple of submissions about each of those two provisions, if the Commission pleases.

PN188

Section 28A gives two alternative definitions of sexual harassment in paragraph (a) and (b). The first, in our submission, is plainly one that contemplates direct behaviour and it does so by the use of the word "two" and it contemplates, in our submission, behaviour between two people and two people only, the person making the advance and the person harassed.

PN189

Subparagraph (b) in contrast, in our submission, is in its terms much broader. Firstly, it is obviously looking at something other than conduct that comes within (a) because it uses that word "other" unwelcome conduct of a sexual nature which is conduct of a sexual nature being a defined term in subsection (2) and defined, not exhaustively though, but inclusively in a manner that, in our submission, indicates its breadth. It doesn't even have to be physical conduct, it can be the making of a statement.

PN190

This is an Act that is intending to cover a large area of activity, in our submission, not a small area. There's no warrant in the terms of this definition for a narrow approach and parliament has given sexual harassment a broad definition and the narrowing occurs when one gets to the prohibition sections about the areas of activity. That's, in our submission, the proper approach, a broad definition and the parliament narrows the application of that definition by looking at the particular areas of activity. All that subparagraph (b) requires, in our submission, are these things, that there is one person who engages in conduct, that the conduct is of a sexual nature and then that conduct is in relation to a person harassed. There are three steps and the broadest of all drafting terms that could be used is used "in relation to".

PN191

Significantly then, in our submission, in section 28B, the prohibited area of activity, the relevant one, is subsection (2) and it is not restricted to the workplace. It is restricted only by identification of the status of the two people. They must both be employees but otherwise the prohibition is unrestricted and that stands in stark contrast to section 28B(6), if I can ask the Commission to turn over the page where that prohibition which goes wider than employees is confined to the workplace but the prohibition in 28B(2), as I have submitted, depends only on status and otherwise, the parliament plainly contemplates, can extend to conduct outside the workplace.

PN192

The authorities on which we rely to support our submission about the breadth of the words "in relation to" are two and the first is a decision of the High Court in Fountain v Alexander which is behind tab 6 of our list of authorities. The very short passage that we identify is in the judgment of his Honour then Mason J at page 629, the last full paragraph on that page, about the middle of that page where his Honour says:

PN193

But in relation to being an expression of wide and general import, it should not be read down in the absence of some compelling reason for so doing.

PN194

That characterisation of that drafting phrase can, in our submission, be found time and time again in a variety of jurisdictions. It is well recognised to be the broadest of phrases and as his Honour there says:

PN195

Unless there is a compelling reason which must be drawn from the context of the statutory provision -

PN196

in our submission:

PN197

- for reading it down one should not do so.

PN198

What is the context of this statutory provision? In our submission it is a piece of remedial legislation that plainly has as one of its aims, an attempt to change the behaviour of people in certain spheres of activity by the imposition of prohibitions and to do so, in our submission, in the broadest way possible within the recognised constitutional limitations that the Commonwealth must operate under. In that kind of context, given, in our submission, that there will always be an infinite variety of behaviour that could come within the term "conduct of a sexual nature" the legislature has not tried to be any more prescriptive than just using the very broad phrase "in relation to". All that requires is, as I've said, a relationship between one thing and another.

PN199

That's what her Honour Bennett J makes clear in the second case I want to take the Commission to which is Australian Broadcasting Corporation v Sydney University of Technology which is behind tab 1.

PN200

SENIOR DEPUTY PRESIDENT ACTON: Just before you go to that,
section 28A(b) - well, it doesn't really matter, it's the end of (1):

PN201

In circumstances in which a reasonable person would have anticipated the person harassed would be offended, humiliated or intimidated.

PN202

Is that broad enough to cover the scope of the person saying, "I wasn't offended, humiliated or intimidated" but a reasonable person would say, "You should have been"?

PN203

MS MORTIMER: It's an interesting question, your Honour, but it's a very important matter because what the parliament has identified is an objective test at that level, not a subjective test at all and given that there's essentially a prohibition on behaviour of perpetrators, in my submission, it's quite possible that somebody could be found to have engaged in sexual harassment even though there is evidence from the alleged victim to say, "I wasn't harassed."

PN204

It might depend on what that means because there is one subjective element in this definition that is important and that is that the conduct must be unwelcome so plainly, if the person who is the person harassed says, "It didn't bother me. I didn't mind if he or she did it," then it may be difficult to make out that unwelcome aspect of the definition. That plainly is subjective but what's not subjective is the second limb that your Honour has identified at the end, after (a) and (b) where the question the parliament requires to be asked is objectively looking at the circumstances, "Would you think that somebody would be offended, humiliated or intimidated by what you were doing."

PN205

SENIOR DEPUTY PRESIDENT ACTON: Yes, that's the answer, isn't it.

PN206

MS MORTIMER: Yes, it is, and that's another problem with the learned Senior Deputy President's formulation about having a person in mind because what this definition demonstrates is that that's not necessary at all because it's an objective test. It doesn't ask whether you intended to cause offence, humiliation or intimidation, where it might be quite relevant to ask whether you had somebody in mind when you engaged in your conduct, it asks objectively would a reasonable person think that the person harassed would be offended and so forth. That's another problem with the having somebody in mind formulation.

PN207

The Australian Broadcasting case, if I can just direct the Commission to the relevant - - -

PN208

SENIOR DEPUTY PRESIDENT ACTON: Sorry, where is it again?

PN209

MS MORTIMER: At tab 1. Her Honour was, in a very different context, freedom of information, construing a phrase in a schedule to the Commonwealth FOI Act that used the phrase "in relation to" and the Commission can see that in the headnote. In the second paragraph of the headnote the statutory phrase is identified in relation to its program material and its datacasting content. Her Honour's consideration of the construction of "in relation to" starts on page 212 at paragraph 9 and her Honour at paragraph 13 gives some consideration to a number of authorities in discussing the issue of whether the phrase "in respect of" or "with reference to" is wider but then goes on to look at the dictionary definition and makes this statement:

PN210

A sufficient or material connection or relationship is required when "in respect of" is used rather than a mere direct or indirect relationship when "in relation to" is used.

PN211

Her Honour goes on in paragraph 15 to say that:

PN212

The width of the expression "in relation to" is obviously to be determined by a context and a relevant connection is required with the subject.

PN213

That's what must be identified, we accept, some kind of relevant connection between two things, here between the conduct of the perpetrator and the person harassed. There must be some kind of relevant connection for subsection (b) to be triggered. To require that the perpetrator has a particular person in mind would, in our submission, deprive subsection (b) of a lot of its operation and a field of operation that a number of cases in the federal jurisdiction have already recognised that it has.

PN214

That really has to do with circumstances in which a person is in physical proximity to behaviour or observing behaviour or observing material or coming into contact with material and I'll take the Commission to some of those examples. The cases that we rely on are set out - the cases that we want to take the Commission to are three and the first is Johanson which is behind tab 9 in our list of authorities. That's a decision of Federal Magistrate Driver and the relevant paragraphs are - this was a case to do with the purchase of a bone from a butcher's shop that had a particular offensive shape and there was evidence, as his Honour discusses in some of the passages that I'll take the Commission to, that some of the employees in the butcher's shop had been playing a practical joke and that they never intended that it would be sold to someone.

PN215

If I can take the Commission to paragraph 79, the Commission can see the summary of the evidence there that the two employees had made the object in the shop and that it has been used as a practical joke, then got put in the cool room and nobody intended that it be given to a customer. If I might interpolate there, the perpetrators did not have any person in mind and did not intend that it go to anybody, but it was innocently selected. One could not, in my submission, have a clearer example of where the perpetrators had absolutely nobody in mind, and certainly not the person that was harassed and certainly were not engaging, those employees, in any conduct that was directed at this lady. She was the unfortunate recipient of a practical joke that went wrong.

PN216

Nevertheless, his Honour found that this was within the definition of sexual harassment and so found at paragraph 84, pointing out that the test is objective and that the intention of the perpetrator doesn't matter, doesn't even matter if they were aware that the conduct was of a sexual nature. Of course, in the present circumstances of this appeal, there's no question about those issues and what his Honour then does, which is important in the way we identify the area, is to refer to a series of decisions which plainly recognise at the federal level, under this piece of legislation, that exposure to sexually explicit material and sexually suggestive jokes is within the definition of sexual harassment. That is the plain line of authority in relation to this legislation and it is a line of authority, in our submission, with the greatest of respect to the learned Senior Deputy President, that is cut right across by his finding in this case because his findings and approach in this case require a much more immediate and direct cause and effect kind of relationship between the perpetrator and the person harassed.

PN217

To take an obvious example, if the display by one employee to another employee of a sexually suggestive calendar can be sexual harassment, even if the employee didn't think that that other employee was ever going to see it, didn't have that person in mind, how can it be said that an act of sexual intercourse in the physical presence of another employee isn't equally within the definition, not just a picture but the act. That's why we submit that there is a significant and undue narrowing of the concept as his Honour applied in this case.

PN218

The other two cases which also go to support that proposition, but I'll just give your Honours the paragraph references to rather than take up any more time, the first is Lee v Smith, which is another Federal Magistrate's Court decision at
tab 10. This was a case, we freely admit, that involved a very great range of conduct, some of which was at an extremely severe level and we don't need to trouble the Commission with that aspect of it but the relevant paragraph is paragraph 198 which is the part where the learned Federal Magistrate deals with the least of the conduct in this case, the display of pornography. That's the reference to Lee that we draw the Commission's attention to.

PN219

The other case is Font v Paspaley Pearls, which is behind tab 5, a decision of Federal Magistrate Rafael. The relevant paragraphs start at paragraph 129 and I do apologise for the format of this decision. I'm not really sure how that's happened but that's how it came off the electronic version. It's there that his Honour really deals with the question of comments and that comments are sufficient. The part of his Honour's reasons that we picked up in our written outline that I'll just draw the Commission's attention to, is really the part that starts at paragraph 134 on page 42 down the bottom and over the top, again making the point that's made time and time again that a person need not actually intend to offend and then his Honour goes on to say, and this is the part that we particularly rely on:

PN220

The SDA is a protective Act. It is designed to protect people from the type of behaviour which other members of the community ...(reads)... have to be assessed, not the person who is carrying them out.

PN221

That, in our submission, with respect to his Honour, is a pithy and accurate summary of the intention of this legislation, particularly the sexual harassment provisions and that's the context in which the words "in relation to" need to be construed.

PN222

That's all I want to say about our ground 3. If I can move now to ground 4. I think it's dealt with in our outline of submissions at paragraph 6.1 to 6.2 and I think I've really developed that already in relation to the way the appellant put the dishonesty issue and I don't wish to start repeating myself so there's nothing I wish to add in relation to ground 4.

PN223

If I can move to grounds 5 and 6 and these are dealt with in our written submissions at paragraphs 7.1 to 7.11. The argument is put at two levels. The first level is this, that on a fair reading of the learned Senior Deputy President's reasons it might be said that his Honour imposed an elevated threshold tantamount to serious misconduct and that's the so bad kind of phrase that I took the Commission to, that his Honour did so really independently of any reliance on Rose v Telstra and that the error is not therefore in the decision of Rose v Telstra so much as in an unwanted elevation of the threshold seriousness by the Commissioner in this instance.

PN224

We accept that that might be one way fairly to read his Honour's reasons. We say that is productive of error because of that elevation, but that doesn't necessarily involve an attack on Rose v Telstra squarely. Alternatively, if it's said, and I'm not sure, we don't understand it to be said by the respondents that Rose v Telstra supports the proposition that there must be something tantamount to serious misconduct in relation to out of hours behaviour before you can have a valid reason.

PN225

If that's not put, then it may be simply a question of needing carefully to apply the kind of language used in Rose v Telstra, conscious that there's no magic threshold of seriousness in an adjectival sense that needs to be reached, rather that the concept of valid reason looks at the practical operation of what happened and the effect of it in a global sense, rather than some elevating the question simply to how bad was the employee's conduct. We don't submit for these grounds that it is essential for the Commission to reconsider and disapprove of Rose v Telstra because it may well be we accept on a fair reading of his Honour's reasons that his Honour has simply elevated the test too highly. That would be sufficient, in our submission, to demonstrate error.

PN226

I've taken the Commission already, when I took the Commission through the reasons, to the passages where his Honour used those kinds of expressions and I won't repeat that, but there's no warrant, in our submission, as the respondent does submit, for discounting the fair go all round test when you're looking at valid reason or not considering that that is the approach that the legislation now requires the Commission to take.

PN227

There is, in our submission, a little tension between that requirement, that the Commission must ensure that there is a fair go all round, and the approach taken by the Commission in this case because it does focus on the seriousness or the badness of an employee's conduct, does tend to produce - this is what we say in our written submissions - precisely the kind of result that one gets in this case, that other aspects of the employment relationship are ignored, that is the presence of policies, whether the employee was trained in them and understood them, whether the employee breached them, how wide those policies were, the issues of dishonesty in a general sense, that when one focuses, as we submit the Commissioner did in this case on simply the question of how bad was
Ms Streeter's conduct, then those other aspects of the employment relationship tend to be put to one side. As one can see in our submissions, on the fact finding in this case, that's what happened and that's really why we submit that there was an erroneous approach to understanding the breadth of the inquiry into valid reason in this case.

PN228

Just to conclude our principal submissions, if the Commission pleases, the grounds that we have raised in our notice of appeal are independent of each other and in that sense, in our submission, success on any of them would be sufficient to justify leave to appeal and the allowing of the appeal. They're not cumulative in any sense, they're all independent of each other. I've already made some submissions to the Commission that we recognise, although we haven't really heard what the respondent's attitude to this is yet, but I'm sure we will soon. We recognise that the remitter may well be appropriate because of the nature of the fact finding in this case.

PN229

I've been handed a list of references that I said I'd provide to the Commission and perhaps the best way to do this, if it would be convenient, not casting aspersions on my learned instructor's handwriting, but if we were to have it typed up and give a copy to my learned friends and then we could hand that up in that way in answer to your Honour's question and we could perhaps conveniently do that after lunch.

PN230

If the Commission pleases, those are the submissions on behalf of the appellant.

PN231

SENIOR DEPUTY PRESIDENT ACTON: We'll take the luncheon adjournment now. We'll adjourn until 2 o'clock.

<LUNCHEON ADJOURNMENT [12.31PM]
<RESUMED [2.17PM]

PN232

SENIOR DEPUTY PRESIDENT ACTON: Ms Mortimer.

PN233

MS MORTIMER: If the Commission pleases, we have those references to hand up in a typewritten form with a couple of corrections. If I can just indicate to the Commission that they're no different in character to the ones that were already in our footnotes, that is they are either more references to evidence about how the women felt, whether they were humiliated, embarrassed, angry, whatever, or their attitude about working with Ms Streeter again. Those are the only two categories of evidence into which they fall. If the Commission pleases.

EXHIBIT #3 REFERENCES

PN234

SENIOR DEPUTY PRESIDENT ACTON: Mr Hatcher.

PN235

MR HATCHER: If it please the Commission, can I, before turning to the specific appeal grounds, make two preliminary points. The first is in effect recapped in what we say at the commencement of our written submissions which the Commission will have to give them a marking.

EXHIBIT #R1 RESPONDENT OUTLINE OF SUBMISSIONS

PN236

SENIOR DEPUTY PRESIDENT ACTON: I can indicate to you they have been read, Mr Hatcher.

PN237

MR HATCHER: The proceedings below before the Senior Deputy President essentially involved, as the decision discloses, a contest as to whether there was a valid reason for Ms Streeter's dismissal. We say, and we'll come to the authorities on this in a little while, that in that context his Honour was required to make findings of fact, but on issues that were determinative of the matter and then he was required, based upon those findings, to determine the question of the validity of the reasons relied upon by the employer.

PN238

As we've set out in our written submissions, that exercise involves, although not a discretion in the classic sense, a discretion of sorts, that is one in which the decision-maker has latitude as to the decision to be made. It's not a discretion in the broader sense, but it's a discretion guided by statutory objects, but one in which reasonable minds may differ as to the outcome which may pertain. To use an expression that I will use throughout my submissions, although different expressions may be apposite, his Honour was required to make a value judgment on the facts in order to determine the outcome to apply.

PN239

That notion or value judgment applied not only to the outcome, that is the question of whether there was a valid reason, it also applies to a number of the matters that needed to be considered on the way to a conclusion in relation to that matter. Can I give one example. This is a case where Ms Streeter was dismissed for conduct which occurred away from the workplace in the physical sense, outside of working hours, in a hotel room late at night that had been privately booked and paid for.

PN240

In that context at a number of levels there was obviously an issue about the sufficiency of connection to the employment, that is his Honour had to determine at a number of levels, (1) whether it was connected at all to the employment and secondly, if it was, to what degree or to what extent it was connected with the employment and I'll come to the finding his Honour made about that in due course.

PN241

That's clearly, on any view, both as a matter of law but as a matter of commonsense a vexed issue, that is, if one reads the papers these days, without making a speech about this, there's an ongoing societal debate about what some people call the invasion of a personal or a private sphere of life by the employment sphere. I only say that not to get political or anything like that, but simply to indicate the nature of the issue at stake. It's an issue which involves exercise of a value judgment and it's an issue, the outcome of which reasonable minds may differ about.

PN242

In relation to that particular issue, which is a subset of the valid reason issue, within our submissions at paragraph 1.2, it refers to two decisions in which that particular issue has been characterised. There's a recent full Federal Court decision of Fox v Australian Industrial Relations Commission and we've referred to an aspect of the judgment of Buchanan J. We indicate that his Honour dissented but on that issue he was at one with the majority. He characterised that question which arose in a similar way in that case as one involving the exercise of a value judgment. Secondly, we refer to a decision of a Full Bench of this Commission in Tichy v Department of Justice - Corrections Victoria where again, such a question was characterised as one upon which reasonable minds may differ.

PN243

Once one is dealing with an outcome of that nature, it's not sufficient in an appeal to take an approach which stripped of the form is in substance really an invitation for the Full Bench to redetermine the matter for itself, that is, make its own value judgment in substitution of that made by the first instance decision-maker. It is necessary to demonstrate error, an error in the proper sense.

PN244

What we've seen in this appeal is the appellant alleged error but in most respects, upon analysis, we find that it's not true error at all. For example, it's submitted in a number of respects, and I'll come to the specific examples in due course, that his Honour failed to make findings about certain matters. As we'll see there's a couple of exceptions, but generally as we'll see, that's not the real nature of the complaint. In most cases one does find a finding. The real complaint is that his Honour did not make the finding that Telstra asked him to make.

PN245

That's not an error. That's his Honour undertaking in the appropriate fashion his task as a first instance decision-maker and unless you show, for example on an finding of fact, that his finding was actually wrong on a matter of law, that he has committed an error of law, then you don't get to the stage where you're able to demonstrate an error for appealable purposes.

PN246

An example of the alleged lies of Ms Streeter is the classic case, as I'll come to in due course. His Honour dealt with this matter in the most direct terms. He records the finding which Telstra asked him to make and when one reads it fairly, that is without nitpicking, one finds that he declined to make that finding, that is, Telstra said, "Look, we want you to find that Ms Streeter lied on her oath to the Commission," and if one goes to the decision, and I'll come to this in due course, that submission is recorded and his Honour declines to make that finding.

PN247

Unless Telstra want to, as part of their appeal, go through all the appeal book and demonstrate that he must have been in error in making that finding, that is rejecting that submission, it doesn't get to the stage of any appeal book error. His Honour did deal with the issue, he did make a finding and he did take into account in terms of characterising how that fitted into the notion of valid reason, the complaint really is no more than that his Honour did not make the finding which he was asked to make by Telstra. That is not an error in the way that is presented by Telstra.

PN248

We say that on all the key issues, issues which as I've said upon which reasonable minds may differ, that is no necessarily single correct answer, his Honour on the evidence determined an outcome or reached a conclusion which was in the appropriate range, that is not so far out of bounds that it could by itself be characterised as error and on that basis we say the appeal would fail.

PN249

The second preliminary point I wish to make is this, and it's perhaps a submission in the nature of an alternative submission. Telstra seems to assume in its appeal that if it demonstrates any error whatsoever, no matter how trivial or inconsequential, it is entitled to have his Honour's decision quashed and is entitled to a full rehearing of the matter. Nothing can be further from the correct position and it's for two reasons, firstly, under section 120 of the Workplace Relations Act there's a requirement for leave to appeal and unless the public interest element is attracted to the appeal, this Full Bench has an unfettered discretion as to whether it ought grant leave either at all or as to any particular aspect of the appeal.

PN250

If an appellant comes before a Full Bench and demonstrates some sort of error but on analysis it's a minor error, an inconsequential error, an error which did not go to a matter determinative of the proceedings, an error which in all probability could not have affected the result, then a real issue arises as to whether leave to appeal should be granted, to even entertain the matter before a Full Bench. Full Benches of this Commission are not to be detained by inconsequential or irrelevant matters or matters which don't change the outcome and that is why Full Benches have been given by the legislature that very broad discretion as to leave, subject, as I've indicated, to the public interest requirement.

PN251

The second aspect goes to the relief which may be obtained upon appeal and for that purpose can I just ask the Commission to turn to section 120(7) of the Workplace Relations Act. Unlike perhaps many courts, this tribunal has extraordinarily wide powers at the Full Bench level when it comes to dealing with appeals. For example, in paragraph (a) of subsection (7) it may confirm, quash or vary the decision or act concerned and in paragraph (b) make an order, award or a decision dealing with the subject-matter of a decision or act concerned.

PN252

Of course, the grant of relief in subsection (7) is discretionary, that is it is open, notwithstanding that leave might be granted and some sort of error might be demonstrated not to grant any relief. Even if relief is granted it's not incumbent upon a Full Bench to entirely quash the decision and orders made, it may vary one aspect of them. It may vary one aspect of the decision under appeal to fix up a minor matter. There is no basis to conclude that the mere demonstration of some sort of error gets you to the stage where a decision must be quashed and a rehearing must take place.

PN253

When the appellant criticised our submissions and said, "Look, we've made reference in relation to a number of the alleged errors as to the evidence and how the matter might be determined" if it was looked at in whole and perhaps afresh, she says, "Well, that's not relevant to the question of error," we say that's wrong because it's relevant to the extent that this Full Bench, if it detects any error, has to make a consideration, could this error have affected the outcome, was it a significant error, was it an error which vitiated the result or was an error that in all likelihood and all probability had no bearing upon the outcome, could not have affected the result or otherwise was inconsequential. As I said, that goes to both the issue of leave and the issue of relief.

PN254

When in our submissions in particular issues, for example in relation to I think what's called the third incident, we make quite lengthy submissions by reference to the evidence as to what the evidence was about that subject, we do so to point out that the matter was relatively inconsequential and any finding about that matter could not have affected the result. We make those two points.

PN255

While I'm on my feet about section 120(7), can I just make this submission while I'm at that division. It was suggested that if the appeal succeeds the matter should be remitted to a single member of the Commission to be reheard and as I understood the submission, that would at least involve a rehearing of at least some of the evidence. We say that would be an extraordinary step to take. The usual course in this Commission is that where appeals are upheld the Full Bench will go on to redetermine the matter itself and will do so on the basis of the evidence below.

PN256

This is a case where all the evidence is there. As one sees in the appeal book, one has the benefit of extensive written and oral submissions on all the relevant issues which were made below. The Full Bench is further advantaged by the submissions which have been received in relation to the appeal. One wonders, if this matter needs to be redetermined, what else could be said about the matter, that is, we say, if contrary to everything we say that the Full Bench decides to uphold the appeal and quash the decision, we say without any further hearing the Full Bench should redetermine the matter for itself on the materials and that no further evidence, no further submissions would be required to deal with the matter to finality.

PN257

I think it's fair to say that the applicant here, as the materials disclose was a person on what one might describe as a moderate income, not a corporation like Telstra, and an approach which involves her being forced to a full rehearing of her case, I think it's fair to say would be stretching her resources at the utmost and would not be an appropriate course unless there was a very good reason for doing so and we say no good reason arises in this case.

PN258

Going to the appeal grounds, can I just indicate that I want to deal with the appeal in three parts. The first part will go to those grounds of the appeal which concern the contention that his Honour below failed to make findings of fact or otherwise deal with certain matters. The second part of my submissions will deal with the issue of sexual harassment, that is, did the conduct which was found to have occurred constitute sexual harassment and if so whether that had any consequences. The third part of my submission will deal with this submission made by the appellant that in some sense the Senior Deputy President in finding that the conduct was not sufficiently serious as to constitute a valid reason, in some sense involved the application of the wrong test. I'll deal with the appeal grounds in those three discrete areas.

PN259

As to the first matter, this may take a little while, but it's necessary to identify the way in which Telstra advanced its case below as to valid reason because this has, we say, a particular bearing upon the way in which his Honour went about determining the valid reason question. The Commission has been taken to the letter of dismissal which is at volume 2, page 431 and can I ask the Commission to turn to it again. In analysing this matter, can I indicate that I intend to use the terminology that is used in paragraph 1.4 of the appellant's submissions, that is in relation to the first incident, second incident and so on.

PN260

In the letter of dismissal by reference to four dot points, one can see the reasons for dismissal, that is the instances in which it was alleged that my client had engaged in serious misconduct. The first two dot points jointly, as we understand it, relate to the fourth incident, this is the bathroom incident. The third dot point relates to the sixth and seventh incidents, that is the engaging in sexual activity in the presence of other persons and there's a separate matter about lying in the course of the interviews which took place as part of the investigation process, Can we note this, there's no reference to the first incident, no reference to the second incident, no reference to the third incident, no reference to the fifth incident, nor is there any mention of breach of Telstra policies, nor is there any mention about the effect in terms of emotional distress caused to other employees.

PN261

We accept, as the appellant states in the submissions, we accept that in determining valid reason, the employer - for the purpose of the hearing I'd issued, the employer was not confined to the reasons identified in its letter of dismissal but we say the fact that they're the matters raised at the time of dismissal is indicative of the matters that were of real concern to Telstra at the time of dismissal as distinct from matters which are added on for the purpose of the arbitration to, as it were, bolster its case. That's of relevance when one comes to consider the consequences of his Honour allegedly failing to deal with any of the other incidents.

PN262

I should add that I don't perceive that there's any suggestion that Telstra learned after the dismissal that it didn't know at the time the dismissal occurred, that is, the other grounds weren't added because Telstra learned something new after the dismissal, everything was known at the time of the dismissal and what happened was that there appeared to be some attempt to expand the valid reason grounds at the hearing.

PN263

COMMISSIONER LARKIN: Mr Hatcher, the seven incidents as outlined in the submission, they were put to the applicant during the investigations.

PN264

MR HATCHER: I want to come directly to that, Commissioner, because that's a matter of some significance.

PN265

COMMISSIONER LARKIN: All right. Thank you.

PN266

MR HATCHER: The next step is that I'm inferred from the appeal book materials that there was a direction made to both parties to file outlines of submissions before the hearing proper below started, and both parties did so and those outlines of submissions appear in volume 1 of the appeal book. The submission made by Telstra, which I ask the Full Bench to turn to, starts at volume 1 page 36.

PN267

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Just in doing that, I note that in both the original outline of submissions and also the closing submissions Telstra is consistent in referring to those two other matters that are in paragraph 4(a) on page 37.

PN268

MR HATCHER: I was going to come to that. I must say that I don't really understand what that's referring to. It's not a matter that's been raised in the appeal as having not been dealt with by his Honour so I'm not sure I can assist your Honour with that except to say that it does not appear to be an issue of relevance to the appeal, that there was no particular finding or dealing with that matter.

PN269

In any event, if I can ask the Full Bench to turn to page 49 of the appeal book in those submissions. At paragraphs 54 and 55 the employer Telstra appears to perceive to identify the matters it relied upon in the context of valid reason.

PN270

SENIOR DEPUTY PRESIDENT ACTON: Sorry, Mr Hatcher, I'm a tad lost. I thought I was on page 39.

PN271

MR HATCHER: 49.

PN272

SENIOR DEPUTY PRESIDENT ACTON: 49, I misheard you.

PN273

MR HATCHER: I might have said it wrongly, 49. You'll see there's a heading Section 65238 Valid Reason for the Termination and in paragraph 54 it's said:

PN274

Ms Streeter engaged in the following misconduct relevant to her employment. .

PN275

Then there are four matters which repeat the four matters in the dismissal letter. Then there's, in paragraph 55, two other matters. The first is the mysterious matter we've just discussed, the second is what's been referred to as the bottom grabbing incident. That's incident number 1 in the Telstra appeal submissions. Then in paragraph 56 it's said:

PN276

Ms Streeter's misconduct is the misconduct described in the previous two paragraphs, was said to have breached her duty of good faith and ..... breached various policies and warranted summary dismissal.

PN277

It's clear that insofar as policies are referred to there, it's not talking about some separate category of misconduct, it's merely a characterisation of the conduct which had already been described in paragraphs 54 and 55, so it's not, as it were, a separate matter of substance, it's simply an add-on to what had already been described in 54 and 55. This is the way, upon being directed, that Telstra outlined the matters it relied upon as to valid reason. I should be fair and note that in paragraph 57 there is an issue about her honesty but that really repeats what was in 54(iv).

PN278

These are the submissions that are advanced at the opening of the case. It still doesn't include the second incident, it doesn't include the third incident, this is the incident the subject of the suppression order, and it doesn't include the fifth incident, nor is there any reference in this outline of submissions to any emotional distress being caused to Ms Andrews or any other employee as being a matter either constituting a valid reason itself or being relevant to valid reason.

PN279

This is significant because his Honour below is criticised for failing to deal with certain issues in the context of valid reason but if one looks at the matters raised in the context of valid reason in this outline, upon which, as it were, separate parameters of the case, it can be seen that his Honour, with the possible exception of the policy issues, dealt with all the matters raised. It's the matters that aren't identified in the submission about which complaint is made that he did not deal with them.

PN280

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Mr Hatcher, when you go to the transcript and Mr Wood's opening address - - -

PN281

MR HATCHER: Can I say to your Honour immediately, I'm going to come to that in all fairness to - - -

PN282

SENIOR DEPUTY PRESIDENT CARTWRIGHT: - - - they're all listed there.

PN283

MR HATCHER: I'm going to come to that and I'm going to explain what we say is the context in which that is to be seen. That's ..... immediately.

PN284

SENIOR DEPUTY PRESIDENT ACTON: Yes, I mean, I noted that there's the written submissions but then the oral opening lists all those seven matters.

PN285

MR HATCHER: It doesn't quite, but I'll come to that. This is of significance. What Telstra did was that after the applicant closed her case, it then makes an opening submission and it goes beyond what is in this submission. That has consequences in terms of leave and remedy, that is, the case is run on a certain basis, the applicant runs her case. She closes her case and then counsel for the respondent gets up and starts identifying new grounds for valid reason after that case had been closed. We say, apart from whether he identified them adequately, that real issues go to leave to appeal when the appellant complains that certain matters weren't dealt with when it only raised them for the first time as matters going to valid reason after the applicant had closed her case and was beyond the point of dealing with them in perhaps the way that they should have been dealt with.

PN286

Can I deal now with the matter you raised, Commissioner, about the extent to which the matters were put to Ms Streeter when she gave evidence. Can I first ask the Full Bench to turn to page 159 of the appeal book. This is still in
volume 1. At paragraph number 313 Telstra reads out paragraph 37 of
Ms Andrews' statement and that goes through to paragraph number 316. This is where Ms Andrews is lying in the bed and she says Ms Streeter tried to sit on her, told her to stop and then Ms Streeter made certain remarks and laughing and the remarks aren't really identified and she felt disrespected. This is in a hotel room in the middle of the night. This is how it's raised with Ms Streeter, paragraph 317:

PN287

Do you remember doing that to Ms Andrews?---No.

PN288

That's the extent to which it's raised with the applicant below, that is, it's not squarely put to her, "You did do that." simply asked her as an opening question, "Do you remember that?" "No" and that's where the issue stops. It's not put to her in an appropriate way, something to this effect, "Look, I put it to you that you did do that and that was a serious matter and you should not have done it,"
et cetera, et cetera.

PN289

Then over the page at 160, at paragraph number 337 Telstra reads out part of Ms Barrett's statement and goes on to paragraph 339 and you'll see the top two lines there, that in effect is the substance as we understand it of the fifth incident. The transcript is a little unclear at this point. It doesn’t' record any question in relation to that matter, although an answer "No" is given at 340. Then one has this very odd question at paragraph 341:

PN290

That didn't happen either?---No.

PN291

Rather than putting to the witness that it did happen, that is, "I put it to you that you stood there naked and started drying yourself off in Ms Barrett's presence," the reverse is put to her, "That didn't happen," and one could presumably read that, although the answer "No", as agreeing with the proposition. The witness is led into the position that the thing didn't happen, not that it did happen. That's how allegation 5 is raised.

PN292

Then one comes to allegation 3. This is at appeal book 175 and a similar thing happens.

PN293

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Sorry, which is allegation 3 again?

PN294

MR HATCHER: This is the one the subject of the suppression order, sorry the third incident is the terminology.

PN295

SENIOR DEPUTY PRESIDENT ACTON: Sorry, what was the appeal book number?

PN296

MR HATCHER: Page 175 and it's paragraph 534 at the top of the page. Again it's not put as a proposition but an open ended question:

PN297

Do you recall Mr Hatzistergos then slapping Ms Barrett's forehead with his penis?

PN298

She says, no, she doesn't recall it. Then the next question is in effect putting that Ms Barrett says something so it's a very unsatisfactory question. It's not putting that it happened, it's putting that Ms Barrett said something and the answer "No" appears. Then one sees that odd question again, "That didn't happen?" "No." It's not put to her that it did happen, it's put it her that it didn't happen to which she apparently by the word "no" agrees. That is the way that these matters, not having been adverted to as valid reasons in the outline of submissions which asserted all this, these are the ways in which these matters were raised with the witness.

PN299

Then as we said the applicant closes her case and Telstra opens its case. This is matter that your Honour Cartwright SDP adverted to. That starts at appeal book page 188, still in volume 1. At paragraph 721 counsel for Telstra asks his Honour whether he wanted to open at any length or go straight to the evidence and he says, "Well, it's up to you." Counsel says this, this is at paragraph 723:

PN300

Your Honour, our submissions in relation to the case as set out in outline of submissions of the respondent which run to some 23 pages. Do you have those, your Honour?

PN301

And he's read them and then at the top of page 189 Mr Wood says this:

PN302

As I indicated at the beginning this morning we will also rely on section 61N of the New South Wales Crimes Act.

PN303

So that was clearly identified as a new matter and we accept that that was done in fairly clear terms. Then at paragraph 731, this is said:

PN304

Your Honour, our case is fairly straightforward in the sense that we say that the validity of the reason is proved by the fact -

PN305

and note those words "proved by the fact". That's a little difficult to follow as to how that fits in:

PN306

- proved by the fact that Ms Streeter grabbed Mr Forner's bottom at ..... hotel, that she stood by and laughed as Ms Barrett was sexually assaulted by
Mr Hatzistergos.

PN307

Then there's some other matters and finally at the foot of the page, "stripping naked in front of Ms Barrett" and then if one goes over the page counsel says:

PN308

In all those things we say occurred and we say they constitute a valid reason for the termination.

PN309

We'd accept that if you read that fairly closely, one might take that as an identification of additional matters being raised in the context of valid reason but nowhere did counsel for Telstra indicate that these were new matters, leaving aside the indecency issue, that he had added matters that weren't in the outline, or that the outline was no longer to be relied upon, that there were new matters being raised.

PN310

His Honour below is criticised for not dealing with some of the matters which were then raised for the first time in this way and we'd say that's not a fair criticism. If this was meant to serve as an identification to his Honour that Telstra was now going beyond the original outline and was identifying new or additional matters going to valid reason, and we must in all respect say that his Honour did not receive the degree of assistance about that matter that he was entitled to, that is his Honour, if this appeal point is pressed, as it is, should not be criticised, we say, for failing perhaps to appreciate that Telstra had widened - with that clear identification widened the valid reason grounds that it relied upon, even leaving aside the fact we've already adverted to that this was done after the applicant closed her case.

PN311

Even then we say that there were issues that still weren't identified. For example, the issue of distress to fellow employees, that still wasn't identified as a valid reason nor was there any suggestion that there was some requirement to have regard to those matters.

PN312

In closing submissions Telstra was bold enough to say this. This is in the written closing submission at appeal book page 96. In paragraph 11 at the top of the page, the third line, this is submitted:

PN313

Nor was any evidence-in-chief led from the applicant on matters which she could have given evidence about but did not ...(reads)... respondent's witnesses on a number of key factual issues in dispute, namely -

PN314

and one will see in (a) a reference to the second incident and one will see in (c) a reference to the third incident. That's a very bold submission, we say, given the failure of the appellant below to demonstrate in clear terms what exactly were the valid reasons it was relying upon, that is, what it criticised the applicant for below was actually the consequences of its own failure to make clear that those two issues were matters it relied upon in the context of a valid reason.

PN315

There's no doubt that in the closing written submissions there's a long exposition about each of the seven incidents but again one will search those submissions in vain for a clear identification that Telstra had departed from those valid reasons that it identified before the case started in its outline of submissions. We say that the alleged errors made by his Honour as to failing to deal with certain matters needs to be determined both on its merits and going to leave and going to remedy in the context of that series of events.

PN316

Now can I, before I go to the specific issues, make one further general submission. That's this, and it's perhaps repeating what was said in our written submissions, we say the relevant obligation of his Honour was to demonstrate two things, firstly, that he had dealt with the statutory criteria in section 652(3) in a significant way and secondly, that he had addressed issues of fact properly conceived to be determinative of the outcome.

PN317

We say that merely because a party giving evidence or an argument raises some issue of fact or law, does not create some obligation upon the decision-maker to deal with that matter that is raised, that is, not every matter raised by a party needs to be dealt with. If a matter is inconsequential or without substantial merit, there is no particular requirement upon the decision-maker to deal with it unless it's genuinely determinative of the proceedings. To do otherwise would impose an impossible obligation on first instance decision-makers and a guarantee that all judgments would be overly lengthy in nature.

PN318

Can I just take the Commission to the authority that's quoted in the submission. I've got an extract from the decision. It's Britax Rainsfords v Jones. It's reported at 109 IR 381 and I've simply extracted pages 390 and 391. The relevant part is at firstly, paragraph 35 at page 390. This is the second page of the extract where the Full Bench in that case said that:

PN319

There was a clear duty on the decision-maker to have regard to the considerations prescribed most particularly by the equivalent of the sections we have discussed here. It requires that particular consideration demands that nominated matters be considered.

PN320

Then it says:

PN321

Where such circumstances may be considered each must be treated as a matter of significance in the decision-making process.

PN322

Stopping there, a decision-maker in relation to valid reason has to show that he or she has dealt with the matter of valid reason as a matter of significance in the decision-making process. Then the Full Bench went on to say:

PN323

That duty may be satisfied in a variety of ways. It may entail a particular issue the fact be pronounced upon ...(reads)... be determinative of the outcome would also need to be addressed.

PN324

On the basis of that authority we reject this notion that because the employer says that we raised some issue that under the heading of valid reason there's some obligation upon the decision-maker to deal with each and every issue, a decision-maker has to demonstrate that they dealt with the valid reason consideration in a significant way and that they determined issues of fact that were decisive of that question and no more. Perhaps it's supplemented by paragraph 37 on the following page where the Full Bench said, without finally deciding the matter that:

PN325

It is possible that a failure to state adequate reasons may not in itself constitute an error law but a failure to state reasons in a way which shows that the statutory criteria specified in -

PN326

and there the old section is quoted:

PN327

- have been considered as matters of significance in the determinate process may be sufficient to disclose or constitute ...(reads)... on the ground that the right question has not been asked and answered.

PN328

We say that's the correct approach to the decision-maker process and accordingly, this notion that there needs to be discussion and findings about each and every factual issue raised by an employee is wrong.

PN329

We also in our written submissions at the end of paragraph 1.6 on page 4, Harvey v Qantas Airways Limited, paragraph 32, there a Full Bench found that where you make a finding as to an issue it's not necessary to identify all the subsidiary findings that are necessary to support that finding, that is, it's enough to say what the finding is on the issue without having to identify any other matters that arose along the way. We say that those requirements were complied with by his Honour upon a fair reading of the whole of his decision.

PN330

After that long introduction, can I go straight to ground 1, which we've dealt with in paragraphs 3 to 6 of our written submissions. The first point we want to make about that is that there's a non sequitur, with respect, in Telstra's submissions about this point. It's submission is in effect this, that simply because section 652(3)(a) has the words in brackets (including its effect on the safety and welfare of other employees) that there is some requirement upon a first instance decision-maker to make a specific finding about that matter, irrespective of whether it was raised in the proceedings.

PN331

One might pause at that point and consider how many unfair dismissal decisions of the Commission to date would pass that test. I can't say that I've ever seen a decision which has gone to those matters. I'm sure there is one but I haven't seen one.

PN332

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Is it relevant that that's a new addition - - -

PN333

MR HATCHER: Your Honour might be right, but certainly even since - I haven't checked, I must say, whether it is a new addition.

PN334

SENIOR DEPUTY PRESIDENT ACTON: It is.

PN335

MR HATCHER: I'm assuming it is even since 26 March. I doubt one would struggle to find any decision which has made a finding about that matter in circumstances where the appellant says you would have to make a finding about it, irrespective of whether it was raised in proceedings. That tends to suggest that the submission may have passed the commonsense test.

PN336

Just looking at the words of the provision, what the Commission must have regard to was whether there was a valid reason for the termination which has the necessary relationship to the matters identified, that is capacity or conduct and the words in brackets, we say, are definitional matter. They're there to identify the fact that when one reads the word "conduct" it is taken to include issues of effect on the safety and welfare of other employees but it does no more than that. It does not say the Commission must have regard to that matter specifically. What the Commission must have regard to is whether there's a valid reason that relates to the matters identified. One cannot get out of the language of this a statutory requirement to have specific regard and make a specific finding about that matter.

PN337

Secondly, we would note, and I don't need to take this further because as I understand it the appellant conceded it, that there was no submission made below before his Honour that the evidence concerning the emotional impact upon other employees of the relevant conduct required a finding to be made under section 652(3)(a). That submission was not made and the appellant has probably conceded that it was not made.

PN338

Now, we say that creates real problems in terms of even if they’re right in terms of getting leave to appeal on the point. That is they say that his Honour made an error in not determining a matter which was not the subject of any submissions before him and we say that’s a most unfair criticism and one which would not attract leave. It might be another matter if they clearly put the point to his Honour and his Honour had failed to deal with the point in that way, but where it’s simply not raised it’s a fairly bold approach to raise it for the first time on appeal and say look, your Honour erred even though we didn’t identify that he had to do this.

PN339

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I know I’ve been brought on appeal on that basis.

PN340

MR HATCHER: Yes. Well, it can happen.

PN341

SENIOR DEPUTY PRESIDENT CARTWRIGHT: And we don’t like it when it happens either.

PN342

MR HATCHER: Perhaps your Honour might bear that in mind when you consider leave. That can happen where there’s a mandatory requirement of the statute which just has to be followed and we say that on a proper construction of the provision that’s not this sort of requirement. That is there’s no suggestion of the statute that absent a specific finding as to that matter that the Commission is without jurisdiction to determine an unfair dismissal application. The third point we make - - -

PN343

SENIOR DEPUTY PRESIDENT ACTON: Mr Hatcher, if the matter got to rehearing you say the Bench should deal with it, you should have it raised on appeal, the issue you say wasn’t raised at first instance has been raised on appeal. Is it appropriate that the Bench take it into account in a rehearing without receiving any further submissions?

PN344

MR HATCHER: First of all we make it clear we think the point is wrong.

PN345

SENIOR DEPUTY PRESIDENT ACTON: I understand that.

PN346

MR HATCHER: And for example, if the appeal was upheld on some other ground and the matter was reheard we’d still say the point is wrong and you don’t need to deal with it, but if on the specific point the appeal is upheld then we say that the Full Bench should deal with it and we can deal with it very shortly. We note the evidence advanced by the appellant. We say it refers to fairly immediate and, without being disrespectful, somewhat ....., emotional reactions to an incident on the day or the following day that it happened and we say and it relates to an issue which occurred away from the workplace in a private hotel room between adults who had been inviting other.

PN347

Now, in that context we say that going to valid reason it’s of no consequence at all and should not be a matter which could serve to justify the termination.

PN348

SENIOR DEPUTY PRESIDENT ACTON: But it raises the genuine issue of you say if for whatever reason the matter gets to rehearing it should be dealt with by the Bench, but part of your case is that it shouldn’t get to rehearing on grounds that weren’t raised at first instance even if there is evidence that weren’t raised at first instance, it shouldn’t be a basis for appeal. But setting aside that point, if you get to the appeal stage what is the Bench to do with all those range of issues on which they’ve made the evidence but which weren’t raised as matters the Commission should have regard to at first instance, but on appeal, at this stage at least, have been raised as issues?

PN349

MR HATCHER: Well, our case should be this. That there’s extensive submissions that both deal about the matters and we say - and your Honour, perhaps the only issue I can really think of which might be an exception but I’ve now said what I want to say about that with one further matter to come. If there’s any issue upon which a full bench might require further assistance the full bench would simply identify that to the parties in writing and the parties could respond shortly in writing. I would not apprehend that there would be many issues that would fall in that category. And as I said, the submissions below covered most of the matters that have been supplemented by appeal submissions and oral submissions.

PN350

There’s no new evidence that needs to be considered. So we say the Full Bench is in as good a position as his Honour was to deal with the issues, subject to this one thing, of course, that his Honour had the advantages of seeing the witnesses first hand. But the Full Bench will be guided by the findings he made about that matter. So we don’t see any need to cause inconvenience to anybody to drag them back and give their evidence. So the answer to my question is this, your Honour, is if there’s any point about which the Full Bench has not been assisted in all the submissions to date it would simply identify that to the parties and I’m sure they will respond to them in fairly short form without the sort of approach intended for by ......

PN351

The other matter I wanted to raise in this context was there was some reference to Mr Forner’s evidence. There might be an issue with the weight which one would give to that evidence, but at least in the context of remedy there can’t be any legitimate complaint about a failure to take into account that evidence because its actually occurred that his Honour did. That is when his Honour came to remedy - yes, it’s paragraph 158 on page 31 of the appeal book. His Honour found this:

PN352

There would be difficulties if Ms Streeter were to be reinstated to the Miranda Store. However, it would be appropriate for her to be re-employed by Telstra at another retail outlet (as close to Miranda as practicable) in a similar position to the one she previously held, on terms no less favourable.

PN353

So there can’t be any complaint about this. It’s clear that his Honour was taking directly into account the matters raised by Mr Forner as well as perhaps the issues of the other employees and far from remedy which was, in our submission, a complete answer to that proposition. So that complaint goes nowhere.

PN354

SENIOR DEPUTY PRESIDENT ACTON: So there’d be difficulties to reinstate to the Miranda store. Do we know what those difficulties are?

PN355

MR HATCHER: His Honour didn’t identify them in terms, but in the context of the evidence it’s perfectly clear what his Honour was referring to: the matters raised by Mr Forner concerning her return to the Miranda store. That was the evidence about it. It’s fair to say that it wasn’t tested because it was his opinion. And it’s quite obvious, we say, there’s no other explanation for it. His Honour recognised that, accepted it and gave a remedy which dealt directly with it.

PN356

SENIOR DEPUTY PRESIDENT ACTON: So the difficulties are the difficulties between Ms Streeter and Mr Forner?

PN357

MR HATCHER: Well, we can only refer to what Mr Forner said. He was referring to his own concerns, that is to the extent that there was that bottom grabbing incident I can take the Commission to the evidence if necessary, but I think the submissions say he didn’t express any other new concern about that for his own part. He expressed an opinion. This is the passage my learned friend took the Full Bench to this morning where he expressed concern about the effects of her reinstatement at the store with respect to the other employees who were in that hotel room overnight and he indicated they might be distressed, he indicated that they might resign.

PN358

Now, we say that when his Honour refers to difficulties it’s perfectly obvious that that’s what he’s referring to and his Honour has crafted a remedy to completely avoid that situation. Now, there’s been no complaint in the appeal as to the specific remedy, or that we say oppose any form of reinstatement or
re-employment, but that specific remedy is not the subject of any complaint in the appeals. It’s not suggested it’s impractical or it can’t be made to work and it really deals with that issue completely.

PN359

SENIOR DEPUTY PRESIDENT ACTON: It does beg the question though, doesn’t it, if the employee has through their conduct placed themselves in a position where they can’t be put back into their own job, doesn’t it beg the question of valid reason?

PN360

MR HATCHER: With respect no. The Senior Deputy President hasn’t made a finding that Ms Streeter is to be held responsible or accountable for the consequences in such a way as to justify the termination. He hasn’t found that. He’s made a much more limited finding in the context of remedy, that is there would be difficulties and they can be avoided. So we say - - -

PN361

SENIOR DEPUTY PRESIDENT ACTON: But is there a suggestion that it’s difficulties caused by the other employees?

PN362

MR HATCHER: It’s not an issue of causation, it’s an issue of the fact that the difficulty exists.

PN363

SENIOR DEPUTY PRESIDENT ACTON: But doesn’t it raise a broader question about why do those difficulties exist?

PN364

MR HATCHER: It can raise any sorts of questions. I’m only concerned with the findings made by his Honour. Now, his Honour - - -

PN365

SENIOR DEPUTY PRESIDENT ACTON: It might be argued that that suggestion that you can’t reinstate to the previous position comes at the end when perhaps it should have raised the whole issue at the very beginning of whether there was a valid reason. Now, if an employee does something which breaks down the relationship with other employees, no fault of the other employees but through the conduct of one, what’s the employer to do? Just say I'll have to find you a job elsewhere?

PN366

MR HATCHER: Well, can I draw this analogy. Let’s say you have two employees - again assuming a large employer like Telstra - let’s say you have two employees who work at a workplace and as might be unknown in the world they form some sort of relationship, they might even get married. And for totally private reasons the relationship breaks down and one or both of them are distressed to the extent that they can’t work together anymore. It could not possibly be suggested that that’s a valid reason for termination, but it might be a reason that causes practical difficulties and requires them to be separated. That’s the distinction I’m trying to make as between difficulties in the context of remedy and the reaction of employees in the context of valid reason.

PN367

That is, the fact that you have emotional consequences for somebody at work does not mean that the employee could have said to have caused this, in some way accountable or responsible for them, in terms of losing their employment.

PN368

SENIOR DEPUTY PRESIDENT ACTON: Well, the issue you raise is the very one I go to. That if in the workplace two employees can’t work with each other, what’s the employer to do? Say they’re in a milk bar. One shop, they can’t work with each other, what’s the employer to do to keep them on and have disruption in the workplace?

PN369

MR HATCHER: I can answer facetiously that the statute doesn’t even get that far. But I can deal with your Honour’s point. That is his Honour wasn’t dealing with a milk bar. If he was dealing with a milk bar the answer might be different. But his Honour wasn’t dealing with a milk bar, he was dealing with Telstra. And if it was the milk bar situation his Honour might have found an equivalent thing look, to reinstate you can’t work and I won’t order it because there’s no alternatives. But this is Telstra, a large employer by any standards and the remedy he crafted was practical and no complaint is made about it.

PN370

SENIOR DEPUTY PRESIDENT ACTON: So the test is different for a bigger employer by virtue of their size and their ability to shift people around, is it?

PN371

MR HATCHER: Yes and the statute makes that clear. I mean, the statute makes the size of an employer relevant in other contexts. If you have an incident between two employees and there was nowhere else to put them, then the answer might be that there was a valid reason. That is the employer can’t deal with a situation because of its size, can’t deal with a situation that these two employees can never work together again and one has to go. That might conceivably, without conceding, that might constitute a valid reason. But in the context of a major corporation where the problem is easily avoidable, the answer might be completely different.

PN372

So the direct answer is yes. The circumstances of the employer will always be relevant to the question of valid reason and that goes to the size, the nature of its operations, et cetera et cetera. Just as in, for example, all the bad language cases. One knows in the cases that the context of the industry in which the employer operates will have consequences for the extent to which that sort of behaviour is ...... The test changes, or the answer changes dependent upon the circumstances of the employer. Now, at the end of the day again this appeal ground goes nowhere because we say, in effect, his Honour did deal with the matter.

PN373

Now, Telstra says that it wasn’t dealt with. We say it was. Firstly if one goes to paragraph 45 there’s a clear reference to Ms Andrews’s evidence. This is the primary evidence goes to the emotional reactions. That is the other employees describe how they felt at the time the incident occurred and Ms Andrews is the only one that sort of describes an effect which continues into the working hours, albeit only the day immediately after the incident occurred. So his Honour was not ignoring the matter. But then in dealing with the matter he gives it, we say, the importance it deserved and this was the last sentence in paragraph 146 where he says that the behaviour was not only inappropriate but inconsiderate to her fellow employees.

PN374

Now, to be read fairly it doesn’t mean inconsiderate of her feelings. That is a matter that he had taken into account. But his Honour considered in the overall context there were all the circumstances needed to be considered, this is paragraph 147, and his Honour comes to the conclusion that it was not sufficiently serious so as to justify termination. Now, that involves the exercise of a value judgment by his Honour. Now, it may be that this Full Bench had it heard the case for itself might have decided the matter in a different way or might have drawn a different conclusion, but to say that is not to demonstrate or to see any error on his Honour’s part we say that he gave the issue of the affect on the employees, the regard of what was warranted, took it into account but in all the circumstances came to the conclusion, exercising his own value judgment, that it did not warrant dismissal and we say no error is demonstrated thereby.

PN375

We would add that the - just give me one minute. So I think that’s all I can usefully say about that matter. As to ground 2(a) this goes to the third incident, that is the incident that has been made the subject of a suppression order. We’ve already made submissions about the way in which this issue was advanced below and we say that to the extent that his Honour did deal with it, and we can see that one can’t find anything in the decision which specifically deals with it, but that substantially ..... employer below properly identified as a matter that it relied upon was a valid reason, accordingly appeal would be granted about that matter or alternatively no remedy would follow.

PN376

We go on to saying our written submissions that in any event, and this again goes to the questions of leave and remedy and appeal, it’s difficult to come to the conclusion that if the matter had been dealt with it could have effected the result. At its highest it’s not mentioned that Ms Streeter engaged in this conduct alleged against Mr Hatzistergos, it was implicit in the conduct. What’s alleged against her is that it was a valid reason, taken at its highest, was that it was a valid reason dismissal because of a reaction to something that somebody else did. Again, out of hours, late at night, and on the evidence Ms Streeter was extremely intoxicated.

PN377

Just simply characterising it in that way we say it demonstrates that it’s not a matter, even had it been properly identified below as a valid reason, not a matter which could have effected the result. Telstra has tried to put this label on it that it constituted apparent endorsement of what Mr Hatzistergos did. We find that a fairly disturbing proposition, that is that somebody’s immediate reaction to somebody else’s conduct can itself constitute misconduct in circumstances where it’s not even at the workplace. There’s no direct evidence that Ms Streeter endorsed anything that Mr Hatzistergos either did or didn’t do.

PN378

We also point out in paragraph 8 of our submissions that the evidence as to this matter is so unsatisfactory that Telstra could not have succeeded in obtaining a positive finding about this matter in any event. The first proposition is this, that there were six people in the room at the time, and leaving aside Mr Sharma,
Mr Hatzistergos and Ms Streeter, that leaves Ms Barrett, Ms Hyett and
Ms Andrews. Ms Hyett and Ms Andrews made no mention of this in their evidence and the Commission will recall that Ms Andrews was described by his Honour as the most consistent and outstanding which was above all of them.

PN379

Ms Barrett expressly says in her statement of evidence that she had her eyes closed when this allegedly occurred and she didn’t see it, she sensed it from the way it felt. I don’t want to stretch it too far, but that’s the way she identified what had happened. She made it clear she did not see it. She said she opened her eyes after it happened. She then describes an intervening event, namely
Mr Hatzistergos having his towel pulled from his waste and walking out naked and it’s then that she describes Ms Streeter was laughing. So there’s an intervening event. So even if it happened, and one would have to be doubtful about that, it’s not even clear what Ms Streeter was laughing about, whether it’s that alleged incident or the intervening thing where Mr Hatzistergos drops the towel from his waist.

PN380

So we say the thing doesn’t really go anywhere anyway. And then a very important contradiction in what Ms Barrett said about this because there was a record of interview, and we’ve put the words in the reference, that when she described this in the record of interview she says this:

PN381

No one else saw what happened. Maybe C -

PN382

That’s presuming Ms Streeter and A did:

PN383

- but they didn’t say anything.

PN384

That’s what she said in her record of interview. Then she comes to the Commission and says it happened, she didn’t see it because she had her eyes closed and then she describes Ms Streeter being there and laughing.

PN385

SENIOR DEPUTY PRESIDENT CARTWRIGHT: If I recall, Mr Hatcher, didn’t Mr Hatzistergos go off to throw up in the basin?

PN386

MR HATCHER: He did at some stage.

PN387

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Was that the ..... which probably wouldn’t have been a laughing matter. I mean, that’s what I was thinking about.

PN388

MR HATCHER: I think he did. That’s what happened after this, although I must say the order of events is totally unclear in this episode, but the point I’m making is that even taking Ms Barrett’s evidence at its highest, there’s an intervening event in the words of her own statement, that is Mr Hatzistergos lets the towel fall from his waist and walk naked out. Conceivable Ms Streeter, if she was there, was laughing at that. The conclusion which Telstra seeks to draw from all this, it just can’t be sustained from the evidence. And one comes to the contradiction no one else saw what happen, maybe she did. It just can’t be reconciled. So one, without in any way understating the seriousness of the allegation as
Mr Hatzistergos, it’s entirely a different matter.

PN389

In terms of Ms Streeter, taking the evidence at its highest one can’t characterise this as a serious matter and two, one can’t conclude that it can be positively found on the evidence that this thing actually happened in the way alleged by Telstra. That and with the unsatisfactory way in which this matter was raised below we say would not merit either leave being granted as to this matter or any remedy being granted as to this matter. I should add that if one accepts - I'll come to this in due course - but if one accepts his Honour’s finding that the incident of sexual intercourse did not constitute a valid reason and put that to one side, then one would have difficulty in coming to this much less serious matter on discrete and saying that that would constitute a valid reason if the sexual intercourse did not.

PN390

That’s why we say it really doesn’t take you to it anyway. Now, then we go to grounds 2(b) and (c). This is the contention that his Honour failed to deal with the proposition or the allegation that Ms Streeter also had sexual relations with
Mr Hatzistergos. We say this is again a clear case not that his Honour didn’t deal with it, but that Telstra simply complains about the way in which his Honour dealt with it. Now, I take the Full Bench to paragraphs 39 through to 41 of the decision at appeal book page 11. In those paragraphs his Honour deals directly with the evidence on the issue and on those certain contradictions.

PN391

So she in 38 and 39 first of Ms Barrett’s evidence that she observed the two having sexual intercourse, then his Honour records at paragraph 40 that although Ms Streeter conceded having sex with Mr Sharma she denied that she had sex with Mr Hatzistergos apart from leaving aside the matter in the italics in that paragraph, his Honour noted discrepancies on the evidence of the respondent’s witnesses in relation to the position of those involved and their stated summary of matters which we elaborate upon in our submissions. Again Ms Andrews’s evidence he found the most straight forward and impelling did not report
Ms Streeter was having sex with Mr Hatzistergos. He says of course she may have been asleep at the time.

PN392

As I'll demonstrate in fact it’s likely from the evidence that Ms Andrews and
Ms Barrett were describing exactly the same incident, albeit having two different views about the identity of the person involved. He cast doubt on Ms Barrett’s evidence that when she saw them allegedly having intercourse she could see their faces. She also said Mr Sharma was watching them but did not know what
Mr Sharma was wearing because she could not see him. So she says she saw
Mr Sharma watching, but next said she couldn’t see him. Ms Hyett’s statement indicated that she saw them having intercourse but when under cross-examination further it came further she wasn’t sure and became, or arrived at the only course of what she was told by Ms Barrett so she wasn’t prepared to give a positive identification. And then his Honour said this, and this is where I think we part company with the appellant, he says:

PN393

Accordingly, I decline to make a finding as to whether Ms Streeter had sexual intercourse with Mr Hatzistergos.

PN394

And I'll just stop there. The word “accordingly” can only relate to what his Honour has just set out about the conflicts in the evidence, that is accordingly it was a causal link between the problems with the evidence and his conclusion that he would not make a finding about the matter. And then he adds to that by the word “especially”, that is fortifying his result, that the issue has little bearing on the key matters that need to be determined in the case. Now, this needs to be given a fair reading, not the nick picking approach, and the fair reading is that because of the uncertainties, inconsistencies and difficulties with the evidence his Honour found himself unable to make a finding one way or the other about the matter.

PN395

Now, there’s nothing exceptional about that approach. That is simply because parties had a contest about whether something occurred or didn’t occur and called some evidence to support their respective positions does not mean that a court or tribunal is required to choose other position A or position B. If the evidence does not allow a conclusion that either A or B is right then the correct course is for the tribunal or a court not to make a ruling about the matter. In a court the issue is a consequence that the party bearing the onus bears the consequence. Here perhaps onus has less significance. There’s some division of authority about the role of onus in this Commission.

PN396

But we say that it was clearly on the base of that evidence open to his Honour to make a finding or reach had conclusion that the evidence did not permit him to make a finding about the matter. And then his Honour goes on to fortify that result with a very common sense proposition. That having been conceded that
Ms Streeter, at least with Mr Sharma, did have sexual intercourse in front of the other three employees it made very little difference on the determination of issue of valid reason as to the identity of the partner or whether it occurred once or twice and we say that’s a conclusion which was obviously open to his Honour.

PN397

In fact it’s difficult to imagine what other conclusion a reasonable person could reach. Now, this is again an issue of not only where the error has occurred, what are the consequences? It was suggested by the appellant that it was conceivable that if you had one incident or two incidences over one it might make a difference, but that does not explain how it makes a difference. If the appellant wants to get leave about this matter or wants a remedy about this matter or wants the decision quashed it’s really up to the appellant to demonstrate that somehow in a clearly definable way it suffered some injustice as a result of his finding. We say it clearly didn’t.

PN398

Once the conduct is identified there was an issue about that in terms of valid reason. His Honour addressed that. And whether it occurred with a different partner or a second time really makes no difference whatsoever. But the primary submission we make is that it was open to his Honour to say look, the evidence was so unclear about this, I can’t make a finding about this and leave it at that. In our written submissions we have referred to some of the evidence about this matter and this is at paragraphs 9.1 through to 9.6 on pages 9 to 10. In 9.1 is
Ms Streeter’s denial even though she admits having sexual relations with
Mr Sharma.

PN399

9.2 Ms Andrews’s evidence, and we give the reference it’s in her statement at appeal book volume 31,040. I don’t want to read it, but perhaps the Full Bench, if it has any doubt about this matter, should read that paragraph for itself because it describes in graphic detail what she observed and her positive identification of
Mr Sharma as the relevant partner. Then at 9.3 we give the reference to
Ms Hyett’s statement concerning this matter and one will immediately see, and I don’t want to elaborate now, but one will immediately see that Ms Hyett is describing a sexual encounter that is in very similar terms to the one described by Ms Andrews.

PN400

That is it’s fairly clear that she’s not describing a second or additional incident, she’s describing the same incident. Then there’s contradictions in her evidence about who was involved. The statement says that she initially thought it was
Mr Sharma, but noticed the man’s arm was light coloured. This was in a room with the lights off. Then her oral evidence-in-chief she said she thought at the time it was Mr Hatzistergos contradicting her statement. And then as his Honour identified it became clear in cross-examination that she didn’t identify
Mr Hatzistergos with any certainty at all and she was relying on what Ms Barrett told her.

PN401

Then we have Mr Hatzistergos denying in his record of interview. Mr Sharma denied it in his record of interview, although at the same time he admitted that he himself had had sexual intercourse with Ms Streeter. And that begs the question why would he admit doing it himself but then deny that a second person had engaged in similar conduct? And then the matter comes down to the evidence of Ms Barrett. At the top of page 10 we give reference to the part of her statement where she deals with the matter again and we say that what she is describing it is fairly clear it’s the same incident described by Ms Andrews and Ms Hyett.

PN402

Again it’s unclear whether identification depended upon properly looking at his face or in examination it appeared that it rested on the colour of his arm. We refer to the matter of Mr Sharma which she says she saw Mr Sharma watching her but then she said I couldn’t see him from where I was lying. No other witness saw that. And there’s other contradictions we refer to. Later on in one version of the statement she says she saw Mr Hatzistergos initiate the thing, in another version in cross-examination she says she was wakened up by the sound of them actually engaging in the sexual act.

PN403

So we say that it was clearly open to his Honour to reach the conclusion that he did and that the proposition that he failed to deal with the matter can be sustained.

PN404

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Where do you say it’s clear it was the same incident that the others were referring to? Are you saying by that, that there was only once instance of intercourse or that there were two and it was only the identity of the person on the other one that was at issue?

PN405

MR HATCHER: That’s a complicated issue and may depend upon how you define one instance of intercourse. The thing is that Ms Hyett says look, she saw this sexual encounter, the one which I’ve referred to which appears to be the same one as the one described by Ms Andrews, and has issues about identification of the person involved was quite clearly was Mr Sharma.

PN406

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Then she says because of the colour of the arm she thought it was Mr Hatzistergos?

PN407

MR HATCHER: In one version she did, the other version was that she thought at first it was Mr Sharma.

PN408

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes.

PN409

MR HATCHER: But then she goes on to say that she subsequently saw
Ms Streeter with Mr Sharma, definitely Mr Sharma, in a different position, quite different from the one Ms Andrews described and she positively identifies that as Mr Sharma. Now, whether that’s a separate encounter or a continuation of the same encounter is just unclear from the evidence. I hope that answers your Honour’s question. But as to the part where Ms Hyett and Ms Barrett say it might have been Mr Hatzistergos we say it’s clear on the evidence if one reads the respective paragraphs of the statement they’re referring to the same thing and that’s by reference to position and activity and that sort.

PN410

So that is to say there is a conflict between Ms Andrews, Ms Barrett and Ms Hyett about the matter and the preference to Ms Andrews would suggest that the other two might have got it wrong. Then can I turn to ground 2(d). This is the contention of that his Honour failed to deal with what was said to be the dishonesty of Ms Streeter. Again we repeat this is a case where his Honour did deal with the matter but not in the terms that Telstra would have liked. I think it characterised in the old submission that he dealt with it in a limited way. That’s only really to say that he didn’t go on and make the findings that we asked him to.

PN411

He did make a very clear point about this upon a fair reading of the decision. Firstly, can I take the Full Bench to paragraph 8 of page 8 of the appeal book and it’s important to observe that this paragraph, paragraph 8, serves as the introduction to a section of the decision which is entitled The Evidence. Now, my learned friend I think characterised this as a new recitation of the evidence. We say it’s something more. In the introduction his Honour was attempting to say that what follows is the evidence about the matters that because many of the facts are not in dispute that evidence stands as the relevant findings of fact in an event and that where there is differences one can see that his Honour tries to deal with the differences, most notably in the section I took the Commission to about whether intercourse had occurred with Mr Hatzistergos. So his Honour says this in paragraph 8:

PN412

While many of the relevant facts in the case are not disputed, on some points there was a significant divergence between the evidence given by the applicant and that given by the respondent's witnesses.

PN413

And then his Honour said that:

PN414

I generally (though not invariably) prefer the evidence of the respondent's witnesses to those of the applicant.

PN415

And that’s an entirely proper finding to make that is a general finding as to credit which generally goes in favour of the respondent’s witness, but not entirely. And then he records this:

PN416

Counsel for the respondent submitted that I should find that the applicant was a persistent liar.

PN417

So there’s a clear reference to the submission elaborated on in great length in the written submissions below, but we do go to that sentence that the applicant was a persistent liar. He said this:

PN418

The applicant concedes that she lied in her interview with the investigators. I deal with this issue in more detail below but these lies must be seen in the context of the nature of the events that occurred on the night of 24 February 2007. It is also likely that some of the applicant's recollections of those events are genuinely hazy. Many of them took place late at night or early in the morning, after the applicant had consumed a significant amount of alcohol.

PN419

Now, if one stops there one sees immediately the error in the submissions made by the appellant. The appellant’s submissions proceed upon the non-sequitar that because the witness’s evidence is not accepted the witness is therefore a liar. And of course that’s an entirely false proposition. There can be a whole range of reasons why a witness’s evidence is not accepted without finding that they lied. For example, that their recollection simply failed them. Witness’s sometimes make mistakes in recollection. Or consumption of various substances can affect recollection. His Honour records the submission made by Telstra but then takes an alternative view, that is they need to be seen in the context of the evidence.

PN420

The applicant’s recollections are generally hazy, late at night or early in the morning and the consumption of a significant amount of alcohol. They’re the findings which his Honour makes to explain why he chose in some respects, but not all respects, to prefer the respondent’s witnesses over Ms Streeter. And as to the consumption of alcohol we remind the Commission of Ms Andrews’ evidence in paragraph 23 about Ms Streeter:

PN421

She appeared very drunk and was walking funny. She was slurring her words.

PN422

So there’s no doubt that Ms Streeter was entirely intoxicated and it’s not surprising in that context that his Honour found that that’s a matter relevant to the evidence that she gave to the Commission. The next part of his Honour’s consideration about this is paragraphs 143 to 145 and his Honour deals with two aspects of it here. Firstly not in dispute that Ms Streeter lied about some of her behaviour during the investigation. Again he repeats that as a matter not in doubt. And then I note that his Honour uses entirely different phraseology when he talks about his evidence to the Commission:

PN423

Moreover I have not accepted some of the evidence Ms Streeter gave during these proceedings.

PN424

A refusal to characterise that as lying. There’s reference to a decision of McIndoe in the context of whether a dismissal is unfair where there was a subterfuge to hide misconduct which was persistent at during the hearing and in summary the Commission in that case said that the dishonesty was such as to be destructive of the respondent’s trust, that is the employee’s trust in him. And that was a finding clearly open and was compounded by attempt to cover the conduct the matter can take on a different complexion. And then his Honour in 145 distinguishes that situation by saying look, this is different, this is not that situation.

PN425

First of all, the conduct about which Ms Streeter lied, and we say that’s to be read as reference to the interview, was personal in nature, lying was said to be condoned, however given the nature of the conduct about which she had been untruthful he found that it was not such as to be destructive of the necessarily relationship of trust between an employer and employee and he relies upon
Mr Forner’s evidence that he had no reason to believe that Ms Streeter was dishonest when he came to ...... So his Honour dealt directly with the issue. His Honour was required to reach a conclusion about whether any dishonesty that had occurred was destructive of the necessarily relationship of trust.

PN426

Again that’s a classic case of a value judgment and we say it was open to his Honour to make a finding of the sort that he did that it was not destructive of that relationship of trust and his Honour gave reasons as to why he thought that was the case. One only has to look at the interview to provide support for that, that is that Ms Streeter was asked by representatives of her employer in a work context extremely personal questions about conduct which had occurred out of hours at a private hotel room late at night of a sexual nature at a time which she was intoxicated. And we say it’s not surprising that she at the interview didn’t make the admissions that apparently it sought that she should make.

PN427

Indeed if it came to the rehearing of this matter we would submit that in fact Telstra had no right to ask those questions and no right to expect any answer let alone an honest answer about this matter, that if one goes to the second
interview - perhaps I'll ask the Commission to turn to this. This is appeal book volume 2 starting at page 477.

PN428

COMMISSIONER LARKIN: Sorry, what page was that?

PN429

MR HATCHER: Page 477. It starts at 400. Yes, sorry, I’ve got the wrong place. Page 447. This is the second interview with Ms Streeter and at the foot of the page can the Commission note this, that Ms Streeter said this:

PN430

Just to let you know I am not going to answer any more of your questions unless they are presented in writing. Notwithstanding that the questions are persistent.

PN431

So Ms Streeter has expressed a concern about the way this interview is going and wants to do it a different way. And then as one sees from the last question which appears at 447, again at 448, she starts to give the answer “no comment” to certain matters.

PN432

So do you think it’s appropriate to grab your manager’s bum? No comment.

PN433

Asked to give a general explanation of what happened in the hotel:

PN434

No comment.

PN435

Hanging at the bathroom:

PN436

No comment.

PN437

Then she denies certain matters in clear term, but then towards the foot of the page at about point 8 she’s asked:

PN438

Were you naked above? No comment.

PN439

Was it appropriate? No comment.

PN440

Then she’s lying about the request of privilege about sexual activity in which she said:

PN441

I don’t know, I can’t really remember anything.

PN442

At 449 she’s asked about Mr Hatzistergos:

PN443

Did you have intercourse with him? No.

PN444

There’s references to witnesses who had confirmed that this happened. One has doubts about the accuracy of that proposition.

PN445

Did you have intercourse with Steve on the bed in front of the others? No.

PN446

What was Aakash doing?

PN447

That doesn’t seem to have been answered. Then this seems to be part of the script even if she denies having sex with Steve:

PN448

We have witnesses who indicate Aakash stood by and watched. Do you recall this happening? No.

PN449

Then she’s asked:

PN450

Did you have sexual intercourse with Aakash?

PN451

This is Mr Sharma:

PN452

No comment.

PN453

So you can see that Ms Streeter is distinguishing about matters to which she has direct answer no and which she maintained at the hearing and matters which in effect she was declining to answer. And it’s clear that she was in fact saying “no comment”, where if she’d answered it directly she would have given an admission. So that, we say, is relevant when one considers the suggestion that she was lying or dishonest at the interview. She was unhappy at the way the interview was being conducted. Notwithstanding that it was pressed and where she was asked a question to which she had to make an admission she in fact said “no comment”. She declines to answer.

PN454

That really, we say, dementias the force of this proposition that she was dishonest at the interview. So again we say that the proposition that his Honour didn’t deal with that matter can not be sustained. Can I deal briefly - perhaps it’s jumping ahead - to appeal ground 6 to the issue of the Telstra policy. There again seems to be suggestions ..... slightly different way that wasn’t dealt with. We would concede that in the context of his consideration of valid reason one doesn’t find an explicit finding as to whether the policy were or were not breached. However, we repeat the submission we made earlier that this was not in itself identified as a separate ground, but really as a characterisation of the conduct which was otherwise identified as going to valid reason by Telstra below and about which his Honour made clear findings.

PN455

So, for example, the extent to which his Honour found that the sexual intercourse incident was not sufficient is serious such as to justify or be a valid reason for termination. It can’t be said that that finding having been made, the mere fact that it might have been in breach of policies ..... the matter justified would be a valid reason for termination. It simply doesn’t follow. That is, if it wasn’t serious by itself to be a valid reason on its own dismissal one doesn’t go any further by re-characterising the same thing as a breach of policies and then getting to a finding of that by itself would constitute a valid reason for dismissal.

PN456

It’s the same conduct, a finding was made about the conduct, the finding was that it wasn’t a valid reason. There was no need to reconsider the same conduct in the light of what Telstra policies might or might not have said about the matter. Again in any event one doesn’t find in the appellant’s case clear identification as to what consequences this might have had for the outcome of the decision making process. For example, if one looks at the policies it’s very unclear that in any event the conduct would have been in breach of the policies themselves. Can I just give two examples of that.

PN457

At appeal book volume 2 at page 605 is the part of the Telstra EBO policy which deals with sexual harassment.

PN458

SENIOR DEPUTY PRESIDENT ACTON: What page is it again sorry?

PN459

MR HATCHER: 605, volume 2.

PN460

SENIOR DEPUTY PRESIDENT ACTON: Thank you.

PN461

MR HATCHER: In paragraphs 31 and 32 at the top of the page there’s definitions of sexual harassment. There’s only a heading on the preceding page. And then at paragraphs 33 and 34 is the gravemente of the policy:

PN462

Telstra does not permit sexual harassment in the workplace. It is unacceptable for anyone who works at Telstra to sexually harass another person in his or her employment.

PN463

And then in 35, and we say this refers to the previous two paragraphs:

PN464

If you do work at Telstra and sexually harass another person you may face disciplinary action including dismissal in serious cases.

PN465

So it’s extremely doubtful from all of that as to whether you would read that policy as extending to the conduct here and in any event, the policy emphasises only in serious cases where it would lead to termination and we compare that to his Honour’s finding that in his view this was not a serious case such as to amount to valid termination. So once you accept that characterisation it’s difficult as to see as to why the policy alone would render what was not a valid reason a valid reason. Example two of the policy is at page 597, a few pages back. Just a reference to Telstra values. And the second paragraph it says, after a general introduction about person values, it says:

PN466

Telstra has one set of values to help guide our behaviour at work, but Telstra values is designed to help us in our dealings with customers and with each other.

PN467

That is our dealings with each other:

PN468

These values provide the foundation for our ability to work together.

PN469

And then there’s a series of values, one of which is I think referred to in respect of ..... I will treat all people with respect. Now, it is seriously contended that an employee is meant to read that as applying not only to their conduct at work but to any other conduct outside of work as applicable to any person treating them with dignity and respect. If the policy was to be read that way, but we think it’s not, it would be far beyond the capacity of the employer to introduce such a policy which would have lawful application to an employee. ..... is that this clearly identifies workplace dealings and should not be read as applicable to the circumstances of the conduct in this case. So there’s nothing there that renders what his Honour found to be serious enough to be valid to lead to the termination into a valid reason by itself.

PN470

That is, the issue in substance goes nowhere. Now, that’s all I have to say about part one. I’m now turning to part two, sexual harassment. Can I inquire as to how long the Full Bench wants to sit for? I certainly don’t intend this part finishing, sexual harassment, in the next 15 minutes.

PN471

SENIOR DEPUTY PRESIDENT ACTON: We were hoping to finish tonight.

PN472

MR HATCHER: I’m happy with that, your Honour, but I don’t want to give any illusion that I’m going to finish in the next 15 minutes, that’s all.

PN473

SENIOR DEPUTY PRESIDENT ACTON: How much longer do you think you’ll be?

PN474

MR HATCHER: Perhaps 40 minutes.

PN475

SENIOR DEPUTY PRESIDENT ACTON: Got any idea how long you might be in reply, Ms Mortimer?

PN476

MS MORTIMER: As we’re going so far I’d anticipate I’d be at least half an hour, but that’s probable.

PN477

SENIOR DEPUTY PRESIDENT ACTON: If it’s convenient to the parties, it’s certainly convenient to us, we thought we might bat on until we finish tonight. So yes, but we thought we might take a break for a short period now. We’ll adjourn briefly.

<SHORT ADJOURNMENT [4.05PM]
<RESUMED [4.22PM]

PN478

SENIOR DEPUTY PRESIDENT ACTON: Mr Hatcher.

PN479

MR HATCHER: Yes. The issue of sexual harassment. Firstly, can I take the Commission to the judgment at paragraphs 126 and 127 and 128. At 126 his Honour deals with the, in the first instance, he finds that it’s probably sexual harassment characterises as relatively minor. Now, as I understand it no challenge was taken to his finding in that respect. Then his Honour turns to the two other matters, that is what might be called the bathroom incident. This is a fourth incident that described in paragraph 128 and the seventh incident in paragraph 129. His Honour disposes of the submission that that constituted criminal conduct which were made by Telstra below in paragraphs 130 through to 132. And then his Honour turns to the issue of sexual harassment about the same matters and your Honour’s reasoning conclusions about that in 133 through to 141.

PN480

Now, in essence, although I expand upon this considerably, we rely upon the reasoning that his Honour adopted, including his reliance upon the decision of Carter v Linuki. Can I take the Commission to the decision in a short while. Can I just make this observation. In paragraph 135, reminding the Commission that the debate was turning upon the words or the expression “in relation to” in the legislation, at paragraph 135 - I take it I’m not the only one with a hearing problem?

PN481

SENIOR DEPUTY PRESIDENT ACTON: Yes. I’m just wondering whether it’s just me also.

PN482

COMMISSIONER LARKIN: The registry are going to have a look at what the issue is.

PN483

SENIOR DEPUTY PRESIDENT CARTWRIGHT: The condition is known as tinnitus.

PN484

MR HATCHER: Yes.

PN485

COMMISSIONER LARKIN: And this is not to make the parties hurry up in their submissions at all, Mr Hatcher.

PN486

SENIOR DEPUTY PRESIDENT ACTON: We’ll turn out the lights for that.

PN487

MR HATCHER: Perhaps to avoid hearing us then. At paragraph 135 in the context of a debate about the expression “in relation to” his Honour came to this conclusion, that the conduct must either be done with a person in mind or having a connection with that person. Now, I know what my learned friend has been said about that formulation. She challenged the first part as being, as it were, in error, being too narrow and I'll deal with that directly in a short while. But in effect she did not have a challenge to the second part of the formulation, that is what might be described as the broader aspect of the formulation.

PN488

Now, that’s of significance as to whether this submission again goes anywhere because you’ll see that at paragraph 140 there’s a recitation of a submission made by Telstra below about the relevant connection. That can only be referring back to the connection that his Honour is talking about, that is the broader aspect of the formulation. So his Honour’s consideration wasn’t confined to the part of the formulation with the appellant attacks, he also dealt with it in the context of the broader formulation about which there is no complaint. So Telstra submits that the relevant connection is made by the simple fact that the proximity between the sexual partners and the witnesses to their conduct and his Honour deals with that in express terms in paragraph 141 and places it in its context, that is a hotel room, lights out, early in the morning when Ms Streeter thought, not unreasonably, that the other employees were asleep.

PN489

There’s no challenge made to any of that. And he concludes on the basis of that that her conduct was not in relation to them, that they were said is not established to establish that it constituted sexual harassment. So two points arise. Firstly that he dealt with the submission based upon the broader part of the formulation and rejected it in express terms based on findings of fact, and secondly in doing so he was again required to make a value judgment. That is was the mere proximity in the overall context enough to make out the relevant connection that he found that it wasn’t. Now again, this is a classic case where reasonable minds might differ, but that’s the finding he made and we say that was clearly open to him on the facts.

PN490

So the problem with the appellant’s submission is firstly that the part of the formulation it takes, even if that point about that is right, and we say it’s wrong, but even if it’s right it doesn’t deal with the second aspect about which his Honour decided the matter. And secondly, of course, it doesn’t deal with the value judgment which he made which is not enhanced by saying that a different value judgment ought to have been made. Can I also ask the Commission to note the last sentence of 141 because again this demonstrates that really the appellant goes nowhere with this. His Honour made an alternative finding. In effect he says well even if it was sexual harassment it was only of the most indirect kind.

PN491

In effect he was saying look, even if upon a strict analysis it falls within the scope of the Sex Discrimination Act provisions it was very indirect in nature. That is that’s a matter going towards the seriousness of the conduct. That’s an observation which his Honour repeated in paragraph 148, albeit in somewhat slightly different terms. The first sentence of 148 he again rejects the criminal aspect of Telstra’s submissions and then he says this:

PN492

Moreover, I have found most of the behaviour complained of either did not constitute sexual harassment as defined by the SDA or only did so in a relatively marginal way.

PN493

So it’s clear that again exercising the value judgment his Honour has not regarded the conduct even if it constituted sexual harassment as being something of seriousness or of significance. That is it only scrapes in and only ..... in a very indirect or marginal way. And that leads directly to the key findings in paragraphs 149, 150 and 151.

PN494

SENIOR DEPUTY PRESIDENT CARTWRIGHT: What do you say in response to Ms Mortimer’s submissions that well if the display of a poster can be regarded as being in breach of the Act, how much more does the .....

PN495

MR HATCHER: I'll deal with that perhaps in direct terms and can I come to some of the cases referred to. In short there’s two matters I wish to raise. Firstly in sort of poster type cases are talking about posters in the workplace which makes all the difference in terms of the directness of the connection. For example, it might be a question as to if someone had a racist or an obscene poster in their own house and for some reason a fellow employee in their private time visited the house, saw the poster and was offended by it, that’s something completely different from a scenario where the poster’s put up in the workplace. So that’s the first point I make. The second point I make is this, that the key issue is the issue of connection and whether the placing of a poster in a workplace context is directed at somebody.

PN496

Now, we accept it’s not necessary for the placing of the poster to be specifically directed towards the employee who might have felt offended by it, but the proper characterisation is that by placing the poster the conduct was directed at employees in the workplace generally. That is, if you’re putting something on the wall it’s for the purpose that a whole class of people will see it. So that if one person in that class sees it and is offended by it they’re a person in a class of persons at whom a conduct was directed and in that sense a relevant connection is made out.

PN497

COMMISSIONER LARKIN: But if it was in a locker, an employee’s locker which is locked up with a key and for some reason the cleaner had permission to open all the lockers would you say - sorry?

PN498

MR HATCHER: That would be a different situation because - - -

PN499

COMMISSIONER LARKIN: As opposed to a poster on a wall?

PN500

MR HATCHER: Yes because the intention is that people will see it.

PN501

COMMISSIONER LARKIN: It’s put there for a reason.

PN502

MR HATCHER: That's right. And I'll come to some of the cases referred to by the appellant just to make good that proposition. Just to complete the point I was making, the appellant’s case does not come to grips with the alternative finding made by his Honour. That is well, even if it’s sexual harassment, its indirectness vastly diminishes the seriousness of it. And that demonstrates that even if they’re right it doesn’t vitiate the conclusion reached by his Honour. Now, can I just firstly take the Commission to the Sex Discrimination Act itself and I deal with one particular submission made by the appellant. So can I invite the Full Bench to open up volume 2 of the appellant’s authorities and tab 17 on page 30.

PN503

Firstly, can I deal with section 28A. It was submitted by the appellant based upon a textual analysis of the provision that in effect in relation to 28(1)(b) is to be construed broadly in covering the most indirect forms of conduct in contradistinction to paragraph (a) which deals with more direct forms of conduct. In our submission that analysis is wrong. The distinction is rather to be made by reference to the types of conduct referred to. That is (b) refers to a broader or general category of conduct than (a), but it is not intended to deal with it in a more indirect way. So (a) identifies two types of conduct. Firstly an unwelcome sexual advance and secondly an unwelcome request for sexual favours.

PN504

Then it has the word “to”, but one can see that the word “to” works in a grammatical way with both examples of a sexual harassment. Then we say the purpose of (b) is to, as it were, act as a catch all, that is to embrace other types of conduct which don’t fall within those two specific categories and that is other unwelcome conduct of a sexual nature. So that’s intended to embrace conduct which is not caught by the specific examples of unwelcome sexual advances and unwelcome requests for sexual favours.

PN505

SENIOR DEPUTY PRESIDENT ACTON: Couldn’t it have just said engages in unwelcome conduct of a sexual nature if your interpretation is right?

PN506

MR HATCHER: No because the preamble to the provision identifies the harassment as harassing another person and the purpose of it is to identify the conduct which constitutes the harassment in connection with that person. Now, in our submission - and this is referred to in the cases I’ve taken the Commission to - the word “to” is not viewed because “to” doesn’t work grammatically. That is you couldn’t read it as saying engages another unwelcome conduct of a sexual nature to the person harassed. The word in relation to is not used to raise some agreed indirectness as compared to (a). It only uses that phrase because that’s what grammatically works in the provision. It’s not to identify some wider scope of operation, but really to identify that it applies to a difference class of conduct.

PN507

So in that context the significance of in relation to in (b) as compared to to in (a) is diminished. It’s a tactical difference, not one of substance. The issue of substance is the type of conduct which has been referred to.

PN508

SENIOR DEPUTY PRESIDENT ACTON: Well, just on that, can you make an unwelcome sexual advance indirectly? So in relation to?

PN509

MR HATCHER: I think that could be easily the case. For example, if you didn’t communicate to someone directly but you thought a third party and it got back to that person, I don’t think anyone would have any doubt that that constitutes a form of sexual harassment. That is if you tell employee A that you want to have sexual relations with employee B and then employee B finds out about it, I don’t think there’d be any doubt, presuming it occurs in the workplace, that that would be sexual harassment. But the communication is not directly to employee B. Then can I make this submission, and we concede that this submission really only arises if the matter falls for re-determination, but if it does we would make this submission.

PN510

And I concede from the outset the submission I’m about to make I can’t identify as having been made or directly considered in any case, but my learned friend might be able to tell me I’m wrong. In 28B(2) sexual harassment becomes unlawful in that category if you sexually harass a fellow employee. Now, it appears to have been assumed that that encompasses a person who might be described as a fellow employee at any time, at any place, no matter whether there’s any connection with the workplace or not. In our submission that can’t be correct. For example, and I’m indebted to my instructing solicitor for the example, if a husband and wife on a holiday in the street engage in a passionate embrace, something which might be a bit over the top in terms of the public context, 99 people would walk down the street and it would not be unlawful sexual harassment by this definition.

PN511

But if one of those employees happened to be - this is on the appellant’s case - a fellow employee that works for the same employer, and it could be Telstra or somebody who works in a different state or a different capacity and never even knows this person, on the approach intended for by the appellant the mere fact the person is a fellow employee means that’s sexual harassment if the other aspects are otherwise made out. Now, we say that can’t be right. It’s absurd.

PN512

SENIOR DEPUTY PRESIDENT ACTON: As in the unwelcome you mean?

PN513

MR HATCHER: Yes. Assuming it’s unwelcome and it might be said that a public display of sexual affection is unwelcome. Assuming it makes out that and say the employee is somebody who takes a strict view of these things, they might see it as unwelcome and that might be objectively described as offending somebody. It can’t be the case that the mere fact that some person who saw it happens to be a fellow employee is sufficient to make it unlawful and any other person who saw it is not.

PN514

SENIOR DEPUTY PRESIDENT ACTON: Well, it also has to be a reasonable person would have anticipated harassed, et cetera.

PN515

MR HATCHER: Yes.

PN516

SENIOR DEPUTY PRESIDENT ACTON: So one has to come to the conclusion not only as the other employee walking by found it unwelcome, but it was reasonable for that person to feel it unwelcome.

PN517

MR HATCHER: I’m sorry, your Honour, I didn’t hear that, your Honour.

PN518

SENIOR DEPUTY PRESIDENT ACTON: You have to conclude in your example that the employee walking by in the street, on holidays was it, found it unwelcome but that it was reasonable for them to find it unwelcome.

PN519

MR HATCHER: Yes. The objective test needs to be made out and perhaps I could use a more extreme example to make sure that the objective test is made. Let’s make it a better example. Let’s say they’re having sex on the beach. So there’s no doubt that - - -

PN520

SENIOR DEPUTY PRESIDENT ACTON: It might be more than sexual harassment then.

PN521

MR HATCHER: So there’s no doubt that the objective test would be made out. They’re on holidays out at Broome, so let’s assume the subjective and objective matters would be made out. Now, on this approach 99 people could walk past and it doesn’t offend this provision because they’re not fellow employees, but one person who works for Telstra in Perth sees it and if you read that literally that person has been sexually harassed and they fall within the scope of the provision. Now, we say that’s an absurd outcome. It can’t be right. Now, we resolve that problem by saying that when it refers to a fellow employee, it has to be a fellow employee in their capacity as such.

PN522

That is a fellow employee as a fellow employee in their employment. It can’t be applicable to private conduct merely because the other person happens to be a fellow employee, perhaps not even known to the person who engages in the conduct. We say that’s a far more sensible construction of the provision and would ensure that the provision serves the purpose for which it was designed, that is to prevent genuine workplace sexual harassment, not to act as some indecency code governing conduct in private life.

PN523

SENIOR DEPUTY PRESIDENT ACTON: Well, what do you then say about Ms Mortimer’s submission on 28B(6)?

PN524

MR HATCHER: (6) is clearly, when one looks at the definition of workplace participant, is designed to cover conduct in a workplace by reference to people who may not be employed by the same people. So it may be an employee and a commission agent who is on the site, or a contract worker and a partner, or an employee and a partner. It intends to embrace a wider range of persons who aren’t encompassed by the notion of fellow employee. So ..... at the workplace and even though you’re not employed by the same people you might be a contractor just visiting the site, nonetheless if you engage in potentially offensive behaviour you will have sexually harassed persons who are employed on the site. That’s the purpose of that provision.

PN525

SENIOR DEPUTY PRESIDENT ACTON: But workplace participant covers employee.

PN526

MR HATCHER: Yes, because it may be an employee engaging in conduct towards a contract worker or visa versa. That’s the purpose of a reference to employee, to ensure that it covers not only interrupting employment relationships but relationships between people working for different entities where they share the same workplace.

PN527

COMMISSIONER LARKIN: In other words at a place that is a workplace of both of those persons.

PN528

MR HATCHER: Yes.

PN529

COMMISSIONER LARKIN: So you say it must be the workplace or a workplace?

PN530

MR HATCHER: Yes. So a building site where you have contractors, a number of contractors on site, you have employees of different employers interacting. It’s intended to ensure that even though you don’t share the same employer - - -

PN531

COMMISSIONER LARKIN: Or a supermarket where you have merchandisers or refrigeration mechanics or whatever.

PN532

MR HATCHER: Yes. Now, that’s the purpose of that provision. Otherwise we’d say it has the most absurd context.

PN533

COMMISSIONER LARKIN: Well I think they’ve got it at (7) the definition.

PN534

MR HATCHER: Yes. And we concede that in subsection (2) where we say acting as in the capacity as an employee that may not be confined to the workplace. If the employees are interacting anywhere in their capacity as employees then they will be covered, but if they’re simply interacting on a totally private basis then it can’t be given, it can’t be covered. Another example might be again is my example of two employees who are in a relationship and it’s seriously suggested that two employees in a private relationship might fall within these provisions if, for example, one makes in the context of the relationship an unwanted sexual advance to the other, that that is unlawful? That would be in our submission absolutely absurd proposition.

PN535

SENIOR DEPUTY PRESIDENT CARTWRIGHT: The Senior Deputy President in his reasoning goes through and accepts that there’s a sufficient connection with the workplace.

PN536

MR HATCHER: Yes, we accept that he did that and in terms of - - -

PN537

SENIOR DEPUTY PRESIDENT CARTWRIGHT: So doesn’t that give you a problem with the submission given that he’s already accepted there’s sufficient connection with the workplace, would that mean therefore that they’re relating in their capacity as employees?

PN538

MR HATCHER: As I made clear this submission only applies if the Full Bench against our submission would quash the decision below and re-determines the matter for itself. In effect it’s an alternative submission. That is on its face the finding his Honour made was that there was a connection, albeit slight to the employment, and he considered it in that context. And we say that was open to him. But if against that the appeal bench quashes the decision and re-determines the matter for itself then we make the submission I make now and in that context.

PN539

SENIOR DEPUTY PRESIDENT CARTWRIGHT: And what would the Full Bench do, what would we decide on that basis?

PN540

MR HATCHER: The Full Bench would decide the sexual harassment did not occur. That is the conduct did not constitute sexual harassment within the meaning. Did not constitute unlawful sexual harassment within the meaning of the Sex Discrimination Act.

PN541

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Because the Full Bench would decide there wasn’t a connection with the workplace?

PN542

MR HATCHER: That's right. That is the Full Bench would decide that the conduct complained of was not to employees acting in their capacity as such, but employees interacting in a total non-work private capacity.

PN543

SENIOR DEPUTY PRESIDENT CARTWRIGHT: So we would come to a different conclusion than his Honour in deciding whether this conduct out of hours was something the employee could reasonably regulate?

PN544

MR HATCHER: Yes, only if the Full Bench had already found that his Honour had got it wrong.

PN545

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes, I understand that.

PN546

MR HATCHER: To put it another way, in effect we say his Honour was somewhat generous to Telstra’s case. That is he need not have found that there was any connection whatsoever and in fact that’s what we submitted below. There was no connection whatsoever. He in fact in part accepted their submissions. So there was a connection, but it was a slight connection. And he determined the matter in that context. And we say our final submission is that of course was open to him, but he got the test wrong and our submission is that the Full Bench should take quite a different approach.

PN547

I now want to turn to the decision of Carter v Linuki. Now, before I do so I just remind the Commission that my learned friend made this submission, that that was about the state legislation and it’s not really relevant or helpful and there’s these federal cases. I ask the Full Bench to bear that submission in mind. Now, can I ask the Full Bench then to turn to appeal book volume 2 to page 360.

PN548

COMMISSIONER LARKIN: Sorry, Mr Hatcher, appeal book number 2?

PN549

MR HATCHER: 360. Now, at paragraph number 2641 counsel for Telstra said this:

PN550

I'll hand up a copy of the Sex Discrimination Act, your Honour, and I'll also hand up a copy of the New South Wales Act which mimics those sections of the case that doesn’t appear to be any dispute in this case and the case thought that the Sex Discrimination Act didn’t apply.

PN551

So there was an acceptance, and a proper acceptance, and I'll show the state provision in a minute. But the provisions are for all relevant purposes identical and in fact are to be both Acts cover this case to be ..... by all. Then in remembering the submission I referred to that was made one should turn then to appeal book page 372. Paragraph 2741 counsel for Telstra said this:

PN552

But if people start engaging in sexual conduct whilst we’re in here then that is going to sexual conduct in relation to everyone who is here. That is the meaning of the phrase. Your Honour, we have found cases which made that point, not directly the point, but we support what we say.

PN553

I think that means they support what we say. He hands them up and you’ll see the first one is Daly Barrington, the second one is Carter v Linuki and the third one is Zanella which is referred to in part in Linuki. And then the Commission on the following pages was taken to those cases. So contrary to what was put in this appeal below the appellant relied upon Carter v Linuki in the context of its submission that the state provisions mimic the Federal Act provisions. And that is how the case came before his Honour. That is that it wasn’t us who raised it, they put it before his Honour and said well, if we rely upon this case it’s relevant, it’s on identical provisions.

PN554

Now, they come here now on appeal and say that because his Honour in that case came to perhaps a different conclusion than the one we wanted and contrary to what we said those cases or irrelevant and of no assistance, well we say that’s not available. It’s fundamental to obtaining leave to appeal that you don’t run a different case on appeal than you ran at first instance. And we say this is a classic case of that. For that reason alone we’d say the appellant should not be allowed to run the appeal, criticising in effect his Honour for applying a case which it relied upon below. Now, can I without introduction take the Commission to that case, but before I do I'll just hand up the internet print of sections 22A and 22B of the New South Wales Anti-Discrimination Act.

PN555

And I won’t do a word by word comparison, but as counsel with Telstra observed below, and in which we agree, 22A in its definition of sexual harassment mimics 28A of the Federal Act and at least with respect to 22B(2) it’s either identical or relatively identical terms to 28B(2) of the Federal Act. So any notion that cases in the New South Wales sphere, determining those provisions are not of assistance or not relevant, we say is misplaced. Now, can I provide a copy of Carter v Linuki. Now, this is a decision of the Equal Opportunity Division of the New South Wales Administrative Decision Tribunal. It starts with the proposition that it’s a decision of a specialist tribunal as to discrimination matters and that it immediately gives us some weight.

PN556

The facts of the matter are briefly set out in paragraphs 1 and 2. That is it involved a work function in which the employer hired a topless waitress which caused offence to an employee. At paragraph 23 the issue is posed the next question is whether the unwelcome sexual conduct was conduct in relation to
Ms Carter, section 22A(b). Now, that immediately identifies something which is absent from the decisions relied upon by the appellant, that is that this decision is directly on point and is directly concerned with the proper construction to be applied to the profession in relation to in the context of the anti-discrimination legislation.

PN557

In paragraph 24, and I’m going to paraphrase, the tribunal said that the expression was intended to identify a nexus between the conduct of the sexual nature and the person who complains of harassment and its affect is to exclude from the definition of sexual harassment conduct which occurs independently of the person who complains of harassment. At paragraph 25 there’s recorded the submission the phrase “in relation to” does not require that it was personally directed at the complainant but only that it affected the complainant. And in the following sentence it says this:

PN558

This submission says that this broad understanding of the meaning of “in relation to” in 22A(b) is in comparison to the narrow terms of 22A(a) where an advance or request must be made to the complainant.

PN559

Now, this was the very point made by my learned friend. Now, at paragraph 26 the tribunal deals with that, albeit in not in quite the positive terms that I did earlier. It says there might be a simple grammatical reason for the difference.

PN560

There might be a simple grammatical reason for the difference in wording: s22A(b) could not have been expressed in identical terms to s22A(a) because the preposition ‘to’ that is used after the words ‘advance’ and ‘request’ in s22A(a) would not usually be used after the word ‘conduct’ as it appears in s22A(b). But at the same time there does appear to be a difference in intent between the two provisions; the word ‘conduct’ in s22A(b) could have been followed by ‘towards’ but instead it is followed by "in relation to", and we discern a consequent difference in meaning. It is not however the difference argued for by the applicant. We do not agree -

PN561

This is paragraph 27:

PN562

- that the phrase "conduct in relation to", as the applicant submits, "merely requires that the conduct must be such that it affected the applicant". The phrase encompasses conduct that is more remote from the applicant than if the word "towards" had been used, but it nevertheless requires a connection with the applicant, or that the conduct was done with the applicant in mind. Thus the phrase could encompass a complainant’s being aware of something of a sexual nature a person does or writes or says about the complainant to a third person, but not something of a sexual nature a person does or writes or says, unrelated to the complainant, to a third person.

PN563

Then there’s reference to a case of Tabbouch which in short the tribunal did not regard as relevant. Then in paragraph 29 there’s reference to the decision of G v R as an example in support of the applicant’s submission in that case. In paragraph 30 there’s reference to that decision which Sir Ronald Wilson was the decision maker and there’s reference to the facts of the case that the particular toilet was placed in a particular location and the woman involved saw it as a result of another’s comments. And there’s a characterisation of the facts in paragraph 30 or 31. And in 32 the tribunal says this:

PN564

The decision in G v R is a useful indication to us of how the phrase of "in relation to" should be understood. Even though the woman in that matter did see, and knew exactly the nature of, what it was that caused her to be distressed, and even though the conduct was more than the mere presence of an offending object but included related comments by work colleagues over some weeks, Sir Ronald Wilson had reservations about whether the conduct was engaged in "in relation to" the complainant.

PN565

And then there’s set out a quote from that decision. I don’t read it all, but his Honour said:

PN566

In the circumstances there are difficulties in finding that the conduct complained of was "in relation to the complainant". Nevertheless for the purposes of this application I am prepared to accept that the conduct could be so interpreted; my reason for doing so is that in other circumstances the presence in a workplace of sexually offensive material which is not directed to any particular employee may still constitute sexual harassment where a hostile or demeaning atmosphere becomes a feature of the workplace environment.

PN567

As the tribunal characterised that in paragraph 33:

PN568

Sir Ronald Wilson had difficulty saying in the circumstances that the conduct was conduct "in relation to" the complainant and, in dismissing the complaint, found only "a prima facie case on the question of whether the conduct was . . . directed at her".

PN569

Then there’s paragraph 34 reference to the basis upon which she was prepared to accept it and there’s the hostile or demeaning atmosphere becoming a feature of the workplace environment. And it’s said:

PN570

On that reasoning, if a hostile or demeaning atmosphere has not become a feature of the workplace environment, then it will be very difficult to establish that conduct of a sexual nature not directed to a particular employee is conduct "in relation to" that employee.

PN571

It was in Ms Carter’s case it fell well short of that. Then in paragraph 36 there’s reference to the decision on Zanella, also relied upon by Telstra below. This is where it’s relevant to the example I used earlier. This is where a women enters a part of the workplace she’s never been before where there’s a calendar of a naked woman hanging. It had been accepted that that was conduct of a sexual nature, but in the quote at 71:

PN572

There is no evidence of any particular connection between the posting of the calendar, or its presence on the wall, and the presence of Ms Zanella, other than the common gender of the people depicted on the calendar and that of
Ms Zanella.

PN573

Reference to Ms Zanella’s infrequency of entry to that part of the workplace. And the last sentence of paragraph 73 there’s a contrast to employment where an employment with an ongoing connection to the premises with any visible posted material by virtue of the employee’s frequency on the occupational premises. And at 74:

PN574

It cannot be said that the calendar was posted in relation to Ms Zanella.

PN575

That decision was made in particular circumstances of the case in paragraph 37 and the tribunal emphasises there may have been other circumstances which made it in relation to her a different context. Then at 38 the tribunal says this:

PN576

However, the decision serves to illustrate the approach to be taken, in the particular circumstances of any case, to the term "in relation to". The Tribunal’s approach ...(reads)... and was engaged in without thought as to the possibility of such an adverse effect, was not conduct that was engaged in "in relation to" Ms Carter.

PN577

And therefore was not unlawful sexual harassment. So that decision was directly on point. Now, his Honour below was not taken to this, but there was in fact an appeal on the decision and I'll provide copies of that to the Commission. Now, this is a decision of the appeal panel of the Administrative Decisions Tribunal and as to the outcome of the case overall the first instance decision was overturned, but as ..... that was not on the sexual harassment ground but on a separate ground of sex discrimination. On the sexual harassment ground the appeal upheld the decision and reasoning of the EO division. At paragraph 8 the appeal dealt directly with the “in relation to” point and recorded the conclusions of the tribunal.

PN578

Paragraph 9 records the submissions made by Ms Carter in her appeal and paragraph 10 refers to her submissions about G v R and that’s further discussed at paragraphs 12 and the further submissions characterised in paragraph 13. There’s further discussion at paragraphs 14 and 15 and then there’s reference to the tribunal in Zanella in 16 and 17. At 18, I’ve summarised all this:

PN579

The conclusion was that for the reasons outlined above we can pick no error of law in the tribunal’s interpretation of the words “in relation to” nor in their application to Ms Carter’s situation and that having made the finding the conduct was not in relation to Ms Carter. It is clearly not needed to address the second part of the test in section 22A.

PN580

So the reasoning conclusions of the tribunal on appeal were affirmed, albeit that the outcome was reversed on different sex discrimination grounds. Now, that deals directly on the point. Now, we say his Honour was entitled to apply that case to the matter here. He was invited to do so by Telstra concerning identical legislation dealing directly on point and it sustained the conclusion that he reached. And we say that Telstra, now having invited him to follow that case below, can’t now come here and say that when he did so he was in error in doing so. Can I just come to some of the cases relied upon by the respondent.

PN581

Firstly can I take the Commission to Johanson v Blackledge. That’s in the bundle of authorities at tab 9. Can I take firstly the Commission to page 75. The Commission was taken to paragraph 84. Can I just take the Commission to the part of the paragraph immediately preceding that paragraph which appears at the top of page 75 in which the magistrate accepted the applicant’s submission to the relevant elements for the purposes of section 28R and then there’s four dot points. Now, one will immediately see that that analysis entirely excludes “in relation to”. That is his Honour was not assisted by having the “in relation to” identified as a separate element, which clearly it is.

PN582

So firstly the analysis is, with respect, flawed from the start, but secondly it demonstrates that the following consideration did not deal with the “in relation to” point in terms in the same way that Carter v Linuki did. In any event you were taken to paragraph 84. With respect, you were taken to the wrong paragraph. What 84 is concerned with is the first dot point, that is whether the conduct was of a sexual nature. And there his Honour said correctly the test is objective, it doesn’t matter about intention of the act in a sexual way and the type of conduct held in conduct with sexual nature includes exposure to sexual explicit material and sexually suggestive jokes. And then there’s the authorities referred to.

PN583

It goes go no more than. This is not a finding or a conclusion that that sort of material would be in relation to a person. It only deals with the limited proposition that it was conduct of a sexual nature and there’d be no doubt about that, just as there’s no doubt about that point here. That is not dealing with the issue of “in relation to” which is a separate point. As I’ve said, the course of the analysis as I’ve adopted this wasn’t dealt with in terms but it was dealt with indirectly in paragraph 89. You will see about half way through 89 there’s a reference to G v R. This is a Sir Ronald Wilson decision again. And shortly after the first reference the decision says this:

PN584

The complaint failed for other reasons, but Sir Ronald Wilson found the conduct complained of could constitute sexual harassment of the complainant even though she was not the target. Clearly it is not necessary the complainant be the conscious target of the conduct. Sexual harassment can occur whether conduct is directed at a limited class of people, for example employees. I see no material difference in the class of conduct directed at customers or potential customers.

PN585

This was a customer’s case. Now, this is the point I made earlier. It doesn’t have to be directed at the individual, provided that that individual is part of a class of persons which the conduct is directed as here. Now, the Full Bench will note that his Honour used that phrase twice directed at. That is his Honour was approaching as if the conduct had to be directed at somebody and the only point he made here was that you don’t have to direct that specific person if directed at the class to which that person belongs then you can’t complain that that person was not a person in relation to it. So we say this supports the approach we contend for and it’s the poster on the wall example I gave earlier.

PN586

It’s sexual conduct directed at employees generally by the mere fact it’s put on a wall where everyone can see it. And the person who saw it and is offended are not specifically being the target of the poster but was part of the class of persons at which the poster was directed. That is contrary to the proposition that all you need is an affect on the person whether intended or not. So to the extent that that case deals with the issue at all, and it really doesn’t in terms, but to the extent that it does we say that it supports the submission that we make. I won’t go into the other two cases referred to. Can I just say that if one reads the paragraphs Lee v Smith and Font one will see that they’re not concerned with the precise point of “in relation to” but are concerned with the more general aspects of the sexual nature of the conduct referred to, but I'll leave it to the Full Bench to deal with that.

PN587

Can I just finish off the sexual harassment and then I'll be fairly brief with the last one. Firstly can I hand up an extract from the decision I referred to in our submissions. It’s Toohey Limited v Commissioner of Stamp Duties [1961] HCA 35; [1961] 105 CLR 602. And at the second page of the extract, page 620, is the extract referred to in the submissions from the judgment of Taylor J and we emphasise two things. That while the expression “relating to” is almost identical expression, this is point 5 of extremely wide, it’s also vague and indefinite and more importantly his Honour said this:

PN588

All the court can do is to endeavour to set some position of the context in which the expression is used.

PN589

So his Honour emphasises that to give the expression precision one needs to have regard to the context.

PN590

SENIOR DEPUTY PRESIDENT ACTON: Sorry, where’s that?

PN591

MR HATCHER: It’s in the last paragraph starting at page 620 and it’s five lines down.

PN592

SENIOR DEPUTY PRESIDENT ACTON: Thank you.

PN593

MR HATCHER: And we say Carter v Linuki is the best case one will find where the phrase is dealt with in terms in the context of sex discrimination legislation. The other decision is McManus v Scott Charlton [1996] FCA 1820; 140 ALR 625. This was a case concerning an employee who had been found to be making unwanted sexual advances to a number of other female employees by way of ringing them up outside of working hours. The facts I don’t repeat, but they’re set out in page 638. Now, in this case a court considered whether the conduct - I should repeat that the case concerned the lawfulness of a direction that the employee cease having any contact with his other female employees.

PN594

At page 634 at about point 2 his Honour began considering the Sex Discrimination Act and its application here which he regarded as of no little significance. I don’t ask the Commission to go through his analysis of that question, but I just emphasise the point made at page 635 at about line 20. The paragraph there says this:

PN595

I have emphasises above that the Sex Discrimination Act alone would not justify such a direction to an employee as was given in the present case. This though is not to say that the prevention of sexual harassment is ..... significance. Far from it.

PN596

When he first drew the emphasis given above one goes up to line five where he says the Act, that is the Sex Discrimination Act:

PN597

Makes an employee’s conduct or the co-worker legitimate ..... for employment regulation purposes if the conduct occurs in connection with the employment of the employee beyond this. The lines of the ...(reads)... acts of harassment. While the acts of a Samaritan may be audible they do not for that reason attract legal force to the measures taken against a perpetrator’s wrongful private conduct. More is required.

PN598

And there his Honour went on and found that more that was required did exist in this case and the essence of it is in the last paragraph at page 635 which in effect I'll paraphrase by saying that what was relevant here was that the perpetrator was utilising his employment and the contact it gave him with other female employees was a way of contacting people and harassing them. That is his employment was the means by which he was locating and identifying people which he could harassing noting that there was a number of female employees involved. And that was the additional factor which the court found and gave legal force to the direction of no contact.

PN599

So that the mere fact of a breach of the Act in private conduct will not alone justify employer intervention unless there is something more which gives it a substantial connection to the workplace, here utilisation of the workplace to identify people to harass. That justifies the approach taken by his Honour below when he said look, even if there was sexual harassment the connection is indirect and marginal and that leads to the finding that his Honour made that the matter wasn’t of sufficient seriousness to constitute a valid reason. That brings me to the last ground where this is the approach taken by his Honour in assessing, in making a termination about the valid reason point.

PN600

Now, can I start with this confession. I don’t entirely understand this appeal point, but I'll do the best I can. The primary point, as I understand it, seems to be that in characterising the seriousness of the conduct concerned I think it was put that his Honour was either applying the wrong test or setting the bar too high in suggesting that in effect he was referring to notions of serious misconduct when it was a different question, namely whether the reason was a valid reason. So I hope I’ve understood that correctly. Now, if one looks at the judgment the relevant paragraphs are at pages 28 and 29 of the appeal book. Page 28.

PN601

I’d already taken the Full Bench to paragraph 148 where his Honour repeats the finding that the conduct did not constitute sexual harassment or if it did only in a relatively marginal way having rejected the exaggeration and seriousness of the matter as put forward by the appellant below. And then in 149 his Honour records that concession by Telstra, that is that the less direct relationship within the workplace more serious than its conduct would need to be to justify termination of employment. Now, there’s been no suggestion that that concession won’t made. It was made and we say it was properly made. That is if you have conduct which is only in a very slight fashion connected to the workplace it would have to be something of an extremely serious character to form a valid reason for termination.

PN602

That’s not to adopt the serious misconduct test, that’s simply a proposition of common sense as conceded by Telstra how it should apply to a consideration of whether there was a valid reason. That concession having been made his Honour recorded the fact the behaviour was well away from the workplace, after rather during a work function in a hotel room that was booked and privately paid for. So that is the factual foundation for the remoteness of the connection to the workplace. And in that connection, having made all the findings that his Honour had already made, he found that it was not so serious as to constitute a valid reason for the termination of Ms Streeter’s employment.

PN603

Now, there is nothing there which suggests that his Honour there adopted the wrong test, that is that he was trying to identify whether there was serious and lawful misconduct in the common law sense because his Honour went on directly to say having found that there was no valid reason for the termination of
Ms Streeter’s employment, that is he’s dealing directly with the language of the statutory provision. Now, I would find it a surprising proposition that the first instance decision maker could not, in the context of valid reason, reach a conclusion based upon the assessment of the seriousness of the conduct.

PN604

To give a simple example, if an employee is dismissed for taking, I don’t know, 50 cents it would be quite open for the decision maker to say look, we find that the employee engaged in the conduct alleged, the conduct was so trivial, that is so lacking in seriousness, that it could not constitute a valid reason for the termination. And that would be, in our submission, a perfectly normal and reasonable approach to take to the problem. It doesn’t involve any displacement of the statutory requirement to asses valid reason. It’s simply a value judgment arrived at as to how the validity of the reason is to be tested.

PN605

It doesn’t involve any displacement of the statutory test and doesn’t involve, as my friend put it, setting the bar too high. And we repeat, his Honour’s assessment of the seriousness of it was made in the context of a concession which the respondent made which is recorded at page 149. Therefore we say that that finding of error is not made out. In any event, as we say in our written submissions, we set out at paragraph 20 a formulation from Rose v Telstra which considered how one would assess out of hours conduct in the context of the valid reason requirement and we’ve underlined the essence of the proposition there stated, that the conduct must be of such gravity importance, that is there seen in its seriousness, as to indicate a rejection or repudiation of the employment contract by the employee.

PN606

So applying that as a guide it would be open to assess the seriousness of the conduct as going to valid reason, particularly when it’s out of hours conduct. Can I finally just hand the Commission the decision of a Full Bench in Farquharson v Qantas Airways Limited PR971685. Can I just note that at paragraphs 18 through to 20 the Full Bench quoted at length in Rose v Telstra with evident approval and observed that it was a decision, this is in paragraph 20, which had been applied on a number of occasions. At paragraph 21 there recorded a submission that there had been some slight departure from the words of the formulation of the Vice President in that case and the Full Bench properly characterised Rose v Telstra in 22, that is while some of this sort are useful they are no ..... for statutory test, namely there was a valid reason or a reason that is sound defensible or well founded.

PN607

So in essence the Full Bench is saying look, he applied the statutory test as articulated in Selvachandran, but in applying that test in the context of out of hours conduct Rose v Telstra is a useful guide as to how one would approach the task. It’s not a substitute for the language of the statute and it gives guidance as to how one approaches the task. We say that there’s nothing in the decision here which is contrary to that proposition. In fact it’s entirely in conformity with it, that is that his Honour has approached the statutory requirement of valid reason on a basis which takes Rose v Telstra to the sky and it has come to the conclusion which involves a value judgment, such judgment not being affected by any error.

PN608

Those are my submissions.

PN609

SENIOR DEPUTY PRESIDENT ACTON: Thank you, Mr Hatcher.

PN610

MS MORTIMER: I doubt I will be able to stick to my half an hour estimate which was given before my learned friend dealt with the sexual harassment ground, but I'll try and be as brief as I can, if the Commission pleases. And I'll start with the sexual harassment ground while it’s fresh in everyone’s minds. Some of what my learned friend said, with the greatest of respect to him, is not a fair representation of my submissions, but I'll leave the Commission to look at the transcript in relation to what my submissions were.

PN611

But to take two important aspects of this it was said by my learned friend that in relation to his Honour’s expression at paragraph 135 that there was, in effect, no challenge to the second formulation, that was not the submission I made, with respect. What I submitted was that the mere use of the words “in connection with” might not be objectionable, but it all depends on what that means. And the submission I made was that when one reads the rest of the reasoning in that paragraph down to 141, and particularly 141, when his Honour is talking about connection his Honour is really looking at did the question of whether Ms Streeter had in mind those other three employees.

PN612

So that I made a very qualified submission about the use of the word “connection” dependent entirely, as it must be, on what his Honour meant and then developed why there was really a misunderstanding when one reads in particular paragraph 141. And what is most apparent at paragraph 141, and I think my learned friend said we didn’t challenge anything in there and that is not the case, what is most apparent in paragraph 141 is his Honour’s focus on what Ms Streeter thought, which is irrelevant. The fact that there might have been evidence, and in our submission there may not have been any evidence, this is really his Honour hypothesising, that Ms Streeter thought not entirely unreasonably that the other employees were asleep was not relevant on the statutory test.

PN613

That is the best example, in our submission, of where his Honour really is harking back to the narrow formulation in paragraph 135 that the conduct must be done with that person in mind.

PN614

SENIOR DEPUTY PRESIDENT ACTON: It does raise an issue, though, on the way you put it of whether the conduct is welcome. And there is a question if nothing’s said whether one can come to the conclusion that it’s welcome or unwelcome.

PN615

MS MORTIMER: Your Honour, there are two distinct aspects and as I submitted in principal submission, the question of unwelcomeness is to be resolved on the evidence of the person harassed and there can be no question, in our submission, in relation to each of these three women that Ms Streeter’s conduct in that room was unwelcome by her fellow employees. There’s plenty of evidence of that on a subjective level.

PN616

SENIOR DEPUTY PRESIDENT ACTON: So the other employee does not have to know which is what you go to?

PN617

MS MORTIMER: That’s the objective bit. That’s where, and this is where my learned friend’s example about fornicating on the beach falls down or hugging in the street falls down. There’s an entirely separate component of the test which is objective and it must be established that a reasonable person would have apprehended that the person harassed would be offended, humiliated, whatever. Now that, in our submission, is easily satisfied in the case of fornication within a couple of meters of somebody between people that, in relation to Ms Andrews, for example, she’d never even met before.

PN618

It can’t possibly be contended that that objective test couldn’t be satisfied in those kinds of circumstances. It’s miles away from the kinds of examples my learned friend my learned friend has encouraged the Commission to consider. And that’s really the point here, with a lot of my learned friend’s submissions about particularly Carter’s case. Of course it will be possible to come up with factual circumstances where on a broad purpose of construction the connection of “in relation to” is not met. And Carter on the facts was an example of that and so was Zanella. A person walking into a room once may not be the sort of circumstance in which it can be said that the conduct of putting a poster on the wall is in relation to that person. That’s a factual circumstance.

PN619

What we quarrel with in the decision of the ADT in that case is the part that his Honour picked up which is having the person in mind and that’s what really governs his Honour’s entire consideration of this issue in this case and that’s where the error is, in our submission. And the Commission will not find at first instance in this matter any encouragement on the respondent’s part for the Commission to adopt that narrow test.

PN620

COMMISSIONER LARKIN: Was that put to his Honour when the authority was relied upon?

PN621

MS MORTIMER: That it was wrong?

PN622

COMMISSIONER LARKIN: Yes because that particular part of his Honour’s decision at page 21 which is a follow on from 134 was actually read out in the transcript by Mr Wood. And I was just trying - - -

PN623

MS MORTIMER: Sorry, page 21 Commissioner?

PN624

COMMISSIONER LARKIN: Well, I’m sorry. 27 of the appeal book, 21 of the decision.

PN625

MS MORTIMER: Yes.

PN626

COMMISSIONER LARKIN: That particular quote, I don’t know where the transcript is now of the appeal book, is it 2 of 3 or 1 of 2? Transcript 28. PN28, where would that transcript be?

PN627

MS MORTIMER: It might be appeal book page 372, somewhere around there. Is that the part? Yes, it’s appeal book 374.

PN628

COMMISSIONER LARKIN: Is it 2 of 3?

PN629

MR HATCHER: 2, Commissioner.

PN630

MS MORTIMER: Volume 2, yes.

PN631

COMMISSIONER LARKIN: Okay, 2. What number in the appeal book?

PN632

MS MORTIMER: I’m just trying to see where that exact passage is read out.

PN633

COMMISSIONER LARKIN: PN2762.

PN634

MS MORTIMER: Yes.

PN635

COMMISSIONER LARKIN: So was that put to his Honour that that’s incorrect, that that’s not what’s being relied upon?

PN636

MS MORTIMER: Well, Commissioner, if you turn the page what’s said is:

PN637

So that’s what my learned friend wants to say. He wants to say read it as towards, but the phrase is broader than towards. The phrase encompasses conduct that is more remote from the applicant than if the word towards had been used, but it nonetheless requires a connection with the applicant and the connection is satisfied in that case.

PN638

That his exactly what we are putting to the Commission now. Exactly.

PN639

COMMISSIONER LARKIN: So you’re distinguishing in the mind, a person in mind.

PN640

MS MORTIMER: Exactly. That’s the whole point. And my learned friend in his submissions, and with respect, has fallen into the same error and is looking, is suggesting that the Sex Discrimination Act requires conduct to be directed to. Now, he was forced quite properly to go as far as conceding that there might be a class of persons, but that really, with respect to him, does not answer the question because it is still focusing on the wrong kind of construction that the words “directed towards” still carry with them an implication of intention from the perpetrator that you are projecting your conduct towards a particular group and that is not what the statute says.

PN641

And that’s exactly what my learned junior was pointing out at that passage that I just took the Commission to. So although it is quite right to say that we draw the Commission’s attentions to Carter and it would not have been responsible for us to do otherwise, what has been picked up by the learned Senior Deputy President is a much narrower construction than the one for which we contended and for which we say the Act requires to be applied.

PN642

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Is that what you object to in the finding in the last sentence in paragraph 128?

PN643

MS MORTIMER: The finding in the last sentence of?

PN644

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Paragraph 128. You referred to that this morning.

PN645

MS MORTIMER: It’s the same point. Yes, your Honour, it’s the same point. But what his Honour seems to be asking to be established is that Ms Streeter was intending to direct that combat at Ms Hyett and that’s what’s unduly narrow about this approach. Now, my learned friend went on to make a submission that there was to be something drawn out of section 28B(2) that wasn’t there, in my submission, and he did, with respect to them, concede that this was something of a normal proposition and in my submission it certainly is. There is no warrant in this legislation to read down subsection (2) of section 28B as if it said the workplace, for example as if it was the same as subsection (6), nor as if it said other than in conduct in a non-work private capacity or something like that.

PN646

There’s no warrant in this legislation. The legislation has been, the parliament has been very clear, in my submission, to focus on status and to focus on the status of employee versus employee. Now, the definition in 28A still has to be met so one must meet the objective part of it, one must meet all those features. But if one does what one employee does in relation to another employee outside the workplace is in our submission plainly intended to be within the prohibition on sexual harassment. And there are good policy reasons in our submission why that would be so and they’re the kind of policy reasons that Finn J was talking about in McManus.

PN647

That once one has that status with another person that you happen to be a
co-employee, the legislature rightly says in our submission that there will be limits on the kind of conduct that you’re allowed to engage in and that it’s appropriate for the legislature to put those limits on one employee, vis-à-vis the other employee, because the person you’re harassing has no choice about being your co-employee. That’s the status they have. And so the protective policy of the Act is to impose a prohibition to protect the person who, through no fault of their own and no choice of their own, happens to be a co-employee. And the legislature does not require any more than that.

PN648

What my learned friend is submitting that the Commission can do if it is satisfied of an error on this ground, in my submission, is to adopt an approach that completely diminishes the prohibitions and protections that the Sex Discrimination Act defaults. He encourages the Commission to downplay this conduct in a way which, in our submission, on any fair reading of what
Ms Streeter did is not warranted. If it is sexual harassment and it is unlawful then it is unlawful full stop. And the point in relation to valid reason is this, and this is the point that his Honour Senior Deputy President accepted at first instance, the vicarious liability for Telstra under this Act is just as broad as the prohibition in 28B(2).

PN649

They’re designed, in my submission, to match each other and that’s really what the Full Court was talking about in Trainor which is a decision that his Honour refers to in some detail in his decision at appeal book 22 and all the relevant bits from Trainor are extracted there in paragraph 119. The result of Trainor, a decision of the Full Court of the Federal Court, is that the broadest of connections is required only for an employer to be vicariously liable for the conduct of an employee. In this situation, translate this into practical terms, if what Ms Streeter did constituted unlawful harassment Telstra was exposed in a real and substantial way to vicarious liability for her conduct at the suit of Ms Andrews, Ms Barrett and Ms Hyett. That’s the effect of this legislation. That’s what the Full Court says in Trainor.

PN650

There’s no narrowing of that exposure for an employer. Now, in those circumstances in our submission it can’t seriously be argued that that circumstance could not constitute a valid reason for termination and the fact that an employee had engaged in behaviour consciously that was unlawful under the SDA and exposed to the employer to vicarious liability at the suit of three
co-employees who had no choice in the circumstances in which they were placed. That, in our submission, is so comfortably within confines of valid reason as to be something that this Commission could decide on a rehearing on this point.

PN651

SENIOR DEPUTY PRESIDENT CARTWRIGHT: So it’s a bit different on that submission to a speeding fine, for example, where there’s no concept of vicarious liability?

PN652

MS MORTIMER: Absolutely, absolutely. And that’s where the importance of the vicarious liability and the importance of Trainor really kicks in in sexual harassment because the employee’s conduct has resulted in a very significant exposure for the employer under this legislation.

PN653

SENIOR DEPUTY PRESIDENT ACTON: But my question is was Telstra vicariously liable? Because the vicarious liability doesn’t arise if the employer has taken all the reasonable steps to try and prevent the conduct.

PN654

MS MORTIMER: That’s so.

PN655

SENIOR DEPUTY PRESIDENT ACTON: One might ask in this instance what steps could it have taken? It was at a hotel which the employer knew nothing about.

PN656

MS MORTIMER: That’s so, that’s so. And on a factual level if there were to be a trial at the suit of one of those other employees naturally that would be an issue that Telstra would likely raise, that it did take all reasonable steps and there would likely be a substantial argument about that. But it’s the question of the exposure to the liability that in our submission gives it the connection to valid reason. The prospect of having to go through that kind of trial, having to make out on the evidence the reasonable steps is, in our submission, precisely the kind of consideration that Telstra has justified in taking into account in deciding whether it can terminate Ms Streeter’s employment.

PN657

So we submit that all that does feed in, although we can’t in an unqualified way submit that a court would necessarily find Telstra vicariously liable because of the reasonable steps defence. But the exposure is real and has been held by the Full Court to be extremely broad because of words not dissimilar to in relation to in connection with that are used in section 106. Now, the thrust of the submission that I have just made to the Commission is that if therefore the Commission is satisfied of error on this particular issue - - -

PN658

SENIOR DEPUTY PRESIDENT ACTON: Just on that.

PN659

MS MORTIMER: Sorry, yes?

PN660

SENIOR DEPUTY PRESIDENT ACTON: But you don’t rely on the notion of vicarious liability, do you, to establish that sexual harassment constitutes a valid reason? Because if sexual harassment is established and the sexual harassment relies on the status of employee against employee, then that of itself is unlawful.

PN661

MS MORTIMER: That's right. It’s not the only way that it feeds in the vicarious liability. Absolutely not. It raises squarely the question of breach of policies about sexual harassment, it raises squarely whether an employer is required to tolerate what is unlawful behaviour under a federal statute by an employee.

PN662

SENIOR DEPUTY PRESIDENT ACTON: But the Telstra policies, at least on the part we’ve been taken to today, on sexual harassment seem to touch on the vicarious liability because they talk about sexual harassment within the workplace.

PN663

MS MORTIMER: No. They also talk about, and I was going to have to take the Commission to that because it is important to understand the nature of the policies, they touch on issues outside the workplace as well. If I could take the Commission to - if we start perhaps at page 585, although this isn’t the sexual harassment that I ..... further. Look, maybe I'll just go straight to the sexual harassment because it’s a different submission I need to make about in reply to what my learned friend said about the policy. So I'll do that in due course. It’s not, if the Commission looks at page 605 under the heading Examples of Sexual Harassment, the fifth dot point under the first set of examples plainly looks at out of hours conduct work related.

PN664

SENIOR DEPUTY PRESIDENT ACTON: Yes, but work related might be - well, may have been the dinner of which Telstra had contributed $25 a head or something. Or whether the next step is a work related event.

PN665

MS MORTIMER: Or a work function. But in our submission it’s so closely connected with it and that’s where the kind of but for analysis in our submission is really very useful. But for their connection as employees of Telstra and but for this being a replacement Christmas party as well as a combined farewell for their manager, those people would not have been brought together at any function nor in that hotel room. The only thing that resulted in those people being together at that time in that place was the fact that they were all co-employees of Telstra.

PN666

COMMISSIONER LARKIN: They weren’t necessarily together in the motel room as a consequence of being employees of Telstra, the restaurant booked for their Christmas party and what have you. But if you look at the particular cases that have been cited in relation to being at a conference, where the employer has paid for the room, or you’re off site travelling allowance and you’re working in a particular area, this particular motel room there was no need of those employees to be in that motel room. The function had finished. They could all go home. It’s a private decision of three or four employees to book that room and pay for it with their private card. So how does the but for catch that?

PN667

MS MORTIMER: Because it’s but for the circumstance of the function. That is it’s so closely connected to it and it is no different, in my submission, to this kind of circumstance. Suppose an office party at a restaurant and nothing untoward happens there, but one person decides to give a lift to another person home from that function. Now, that’s a voluntary decision. It might fit within the Commissioner’s characterisation of a private decision.

PN668

COMMISSIONER LARKIN: It could be journey to or from work.

PN669

MS MORTIMER: Well, in my submission likely not if it was a Christmas party off site at a restaurant or something. But for their connection as employees and the fact that they were getting together as employees, that person to whom the conduct was unwelcome and uninvited would not have been there. And that’s really the point of focusing as the SDA does on the status of the person because it is the fact that people are brought together by virtue of their status as employees that the SDA focuses on, in my submission. I’m reminded by my learned junior just on the small issue of fact, it’s the evidence shows that all three of these women lived in Wollongong and really needed to stay somewhere overnight, but that’s a factual issue that doesn’t really effect, in my submission, the principle.

PN670

The principle is in the kind of example that I gave. There needs to be of course a close kind of connection, but sleeping over in a hotel following a work related function, in my submission, where the people sleeping over are all co-employees is about as close as one could get to the function itself and it would be an arbitrary line to draw at the door of the room where the function is being undertaken for the line to be drawn there in relation to what can be said to be work related and what can not. And that’s why the SDA doesn’t focus on that kind of distinction, it focuses instead on not where the conduct occurred but the status of the people between whom it is occurring.

PN671

And I should direct the Commission’s attention just on the sexual or the EEO policy to page 602, in particular paragraphs 11, 12 and 13. Now, just to finish off on sexual harassment .....

PN672

SENIOR DEPUTY PRESIDENT ACTON: If someone had injured themselves in the traditional sense at the hotel, would that have rendered Telstra liable to a workers compensation claim?

PN673

MS MORTIMER: That not being an area which I practice, your Honour, but on general principals, in my submission, it’s difficult to see how the same kind of analysis would not be followed, the kinds of terms which are in connection with employment that are used. And I think that’s something that her Honour Keifel J did deal briefly with in Trainor and essentially found that certainly no direct connection was needed, certainly no restriction to the workplace was required. Now, I don’t think there’s anything else I want to say by way of submission in relation to sexual harassment, save just to emphasise in case it wasn’t clear that my learned friend is urging upon the Commission that all the matters on this appeal if error is identified could be decided by the Commission.

PN674

Now, we have made a submission that that simply can not in principle be the case if there are issues of credibility that are serious. If the Commission is being asked to make a finding, and it’s really an extraordinary submission with the greatest respect to my learned friend on behalf of his client, to invite this Commission to decide whether his client is lying without hearing from him. That is extraordinary and would be, in my submission, erroneous, legally erroneous. These are the kinds of cases that the High Court in Fox and Percy and all those cases about what the nature of a rehearing deals with are the exception cases and remain the exception cases.

PN675

SENIOR DEPUTY PRESIDENT ACTON: But only, isn’t it, if the lying became a necessary issue.

PN676

MS MORTIMER: Exactly. And that’s why what I am submitting in reply is that if the Commission is satisfied about an error on the sexual harassment construction of the SDA and the approach that his Honour took, that’s not an issue that does require any determination of credibility or any in a material sense that can’t be drawn from the evidence in transcript in documentary form, nor does it require any findings about lying. And so that is something that we submit the Commission could deal with on a rehearing. But we do want to make a firm distinction between that and some of the other grounds that are fact finding grounds on wholly contested evidence or failure to make findings about lying.

PN677

Those are not the kinds of things, in our submission, that it would be appropriate on a rehearing for any appeal court to deal with. Now, having gone slightly out of order I'll just go back to some other reply matters in relation to what my learned friend said. And I'll try really just to pick the eyes out of what we say is really critical because I am conscious of the time. My learned friend made some submissions at the start of his submissions to the effect that if all the Commission was satisfied of were what he characterised as minor errors, that should result in a refusal of leave or alternatively a refusal of relief.

PN678

Now, when he went on to identify what might be minor one of the examples he relied on was the third incident and I want to address that with some specificity on a number of levels. Can I start by addressing the circumstances before the Commission in relation to the third incident because it’s said by my learned friend that this was something that was only raised in final submissions and that is not the case. And it is plain, in my submission, that the references in the outline of submissions filed on behalf of Telstra which your Honour Commissioner Cartwright identified, I think, to my learned friend’s argument, and I’ve just misplaced the appeal book reference to that. I’m sorry, I'll find it.

PN679

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I think I forwarded to the opening oral submissions.

PN680

MS MORTIMER: Yes and it’s also in the written ones at appeal book 50 paragraph 55(a) and I think earlier on. There’s a similar paragraph somewhere else and in my submission that’s plainly what’s in contemplation there. But even if it’s not, and I hear my learned friend protesting loudly about that, even if it’s not it doesn’t matter because what his Honour was required to decide was the whole of the case as put to him at the end of final submissions. That was the case for and against valid reason, as it was put to him at the end. And these kinds of points that my learned friend is taking with great flourish on appeal are trial points.

PN681

You’ve opened on something now that isn’t in your written submissions. You’ve led evidence on something that isn’t in your opening submissions. These are not appeal points. These are trial points. And they weren’t taken. The case was fought, forensic decisions were made, objections were taken or not taken and at the end of the day detailed written submissions were put to the Commission about whether there was or was not a valid reason and the things that we are relying on on this appeal were put squarely. They were the subject of evidence and this was a witness statement case. Witness statements were put on by the applicant, by the respondent and no reply evidence by the applicant.

PN682

So the respondent went into detail on the evidence, including Ms Barrett’s evidence about this third issue, and it wasn’t answered. Now, all these submissions by my learned friend about puttage and this wasn’t put well and this wasn’t put well, Browne v Dunn disappears into nothingness in that context because the applicant was on notice about the evidence against her because she had it in the witness statements. And I don’t pause to defend the way my learned junior conducted the cross-examination. There was nothing wrong with it, in my submission, and certainly not a point that needs to detain the Commission on an appeal.

PN683

Let me return to what’s wrong in every sense of that word with my learned friend’s characterisation of that third incident as something minor. That third incident was a sexual assault by a manager against an employee. And it is said in evidence by Ms Barrett that Ms Streeter stood by, watched, laughed and giggled at that. There is nothing minor about Ms Streeter’s behaviour on that occasion. To stand by on Ms Barrett’s evidence, and I'll come to a submission about that, and watch her soon to be ex-manager do that to a fellow employee and laugh at it, that is not minor. And it’s offensive in every sense of the word for my learned friend to characterise it in that way.

PN684

What my learned friend now wants to do on appeal is invite the Commission to disbelieve Ms Barrett. That can’t be on appeal either. Her evidence on paragraph 26 of her witness statement is as plain as it could be. Now, on what conceivable basis there being no substantial impact made on her in cross example at trial on this issue could it possibly be suggested to the Commission that she is lying and that event did not happen and that Ms Streeter was not observed laughing and giggling at it. And the Commission can see that evidence at appeal book 295. In no way in our submission if we are right as my learned friend has all but conceded, there are no findings about this incident at all and the only thing that my learned friend is left with is to say it doesn’t matter. Well, in our submission that is its inconceivable in the circumstances that I have outlined that it can be suggested that that kind of conduct doesn’t matter.

PN685

So minor that it couldn’t possibly have formed a material part of the Commissioner’s consideration.

PN686

SENIOR DEPUTY PRESIDENT CARTWRIGHT: But to be fair, I mean isn’t the proposition that yes it’s a very serious conduct of Mr Hatzistergos, but that to I think you stand by laughing was not nearly as serious.

PN687

MS MORTIMER: Your Honour, it’s a criminal offence if that evidence is right.

PN688

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes, I understand that, but that’s between, that’s Mr Hatzistergos’s problem.

PN689

MS MORTIMER: That's right, that's right. Which perhaps he obviously recognised. But for Ms Streeter it is still, in our submission, difficult to conceive how it can be said that watching it and not trying to stop him, laughing at it - and we don’t shy away from the word we’ve used in our written submissions - endorsing it, that’s exactly what the consequence is when a person stands by, watches and laughs when something like that is going one. Endorsement, in our submission, is a perfectly proper characterisation. And it is a matter of fact for the decision maker a value judgment, if you want to use that phrase, about how serious it is, how grave it is, but the decision maker did not embark on that.

PN690

That is the error and we say it’s a material one on any appeal. Now, I want to turn now to some submissions my learned friend made on what he said the law was about failure to decide questions of fact in law. And he put to the Commission some extracts from the Britax case and I want to take the Commission back to that because he missed a bit. My learned friend suggested that the appropriate part started at paragraph 35. In my submission it actually starts at paragraph 32 on page 389. If I can ask the Commission to turn that up.

PN691

SENIOR DEPUTY PRESIDENT ACTON: What tab is it? We’ve got the extract.

PN692

MS MORTIMER: It’s not in our authorities. I think my learned friend handed it up.

PN693

SENIOR DEPUTY PRESIDENT ACTON: We didn’t get 389. We only got 390.

PN694

MS MORTIMER: 389. The extract, I’m sorry. Pardon me.

PN695

SENIOR DEPUTY PRESIDENT ACTON: Just hold on one second.

PN696

MS MORTIMER: I can read the part on page 389 to the Commission. It’s really down the bottom of page 32 and it’s in the summary of what Edwards decides, and it’s this:

PN697

Each of those members of the court concluded that the relevant Full Bench of the Commission had correctly proceeded on the basis of the decision maker at first instance had a duty to make a finding about a material issue of fact and that by failing to make such a finding had failed to comply the then section 107CG.

PN698

And members are quote from Moore J which goes over onto page 390 setting out the subject matter of the power and then saying this, that:

PN699

The statute obliged the Commission to give reasons for its decision which deal with -

PN700

And this is the phrase we emphasise:

PN701

- the material, legal and factual issues presented for determination.

PN702

My learned friend’s submissions put a bit of a gloss on that, with respect, by looking at finding what was said in a different context in paragraph 35 whether a consideration is properly conceived to be determinative of the outcome. That is but one example of the more general proposition that is put at the top of that page which in our submission is the correct proposition. And of course the 64 million dollar question is how does one identify what are the material, legal and factual issues? But in my submission in a valid reason case it must almost inevitably follow that if the employer says in a challenge by an applicant these are my reasons for termination that I say are valid, these are the reasons on the evidence and these are the reasons when one looks at the characterisation of that conduct.

PN703

That must in an unfair dismissal circumstance, in our submission, put those matters into the category of material, legal and factual issues because they are what the employer is advancing as valid reasons. Now, that does mean in some circumstances that on both - I withdraw that. Conversely the attacks made in response by the applicant about why those reasons are not valid will also constitute material and legal factual issues. That context is at the heart of the Commission’s function under section 652. It’s only at those issues that we have directed our argument on this appeal about failure to make a finding. We have not strayed outside the matters that Telstra put at first instance as valid reasons.

PN704

There was one more reference in our bundle that I should direct the Commission’s attention to and it’s to be found behind tab - it’s the case of Freshmore - tab, I think it’s 11 probably. King v Freshmore.

PN705

SENIOR DEPUTY PRESIDENT ACTON: 12.

PN706

MS MORTIMER: 12. Paragraph 28 and 29 are the paragraphs to which we direct the Commission’s attention. What’s said there by the Full Bench, particularly the last paragraph of 28:

PN707

The Commission’s obligation is to determine for itself and on the basis of the evidence in the proceedings before it whether the alleged misconduct took place and what it involved.

PN708

And with, in our submission, some precision because deciding whether something is or isn’t sexual harassment or is or isn’t disrespectful does involve some detail. 29 the Full Bench emphasises this and particularly the last half of that paragraph:

PN709

When the reason for a termination is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination determine whether the conduct occurred.

PN710

And that is why we maintain the submission that declining to make a finding, just to take one example that was fasted on by my learned friend, declining to make a finding is, with the greatest of respect to his Honour, an abdication of that function. If in truth the punch that my learned friend puts by reference to a whole lot of evidence that is not in the Commissioner’s decision is right and the Commissioner was in a position where he didn’t feel satisfied of the matter that was being alleged by Telstra, then it was his duty to say so, with the greatest of respect. Ordinarily in a court that reasoning would go along the lines of the person with the burden has not discharged the burden.

PN711

Where there is no burden then the finding must go, in our submission, along the lines of I am not satisfied that this conduct occurred because there are too many contradictions and that these are the reasons. But declining to make a finding is, in our submission, to avoid doing what the Full Bench in Freshmore said needed to be done.

PN712

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Is that just semantics when he’s saying I decline to make a finding? In a way that’s saying I’m really .....

PN713

MS MORTIMER: Unable to?

PN714

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes.

PN715

MS MORTIMER: That would be a matter for the Commission whether that was a fair reason. I accept that might be possible. In our submission it’s a slightly unusual word to choose in those circumstances.

PN716

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Because having read the evidence on that I can understand why he has difficulty with making a finding, if that’s what the words mean.

PN717

MS MORTIMER: If that’s what the words mean. But having difficulty, your Honour, findings of fact are often difficult.

PN718

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I know.

PN719

MS MORTIMER: And that doesn’t mean that the task doesn’t have to be discharged, and for good reason in a case that sequentially depends upon a number of allegations. Because engaging in that fact finding process and reaching conclusions in a cumulative sense will give a decision maker a very different impression from picking and choosing isolated allegations and only making findings about those. That’s part of the decision making process that will, in our submission, likely inform the satisfaction one way or the other. Now, on ground one, and if can just make perhaps two quick points on that and it’s these, my learned friend made something out of those parts of the reasons which deal with some evidence about the impact on employees of Ms Streeter returning to that store, but in the context of reinstatement.

PN720

And we adopt with the greatest respect what your Honour said about that not going to valid reason. They are two different exercises. Impact in a consideration sense for valid reason is one exercise and that’s what was not undertaken, in our submission. We accept that there is some reference in the Commission’s reasons to Mr Forner’s evidence, for example, on whether people would be happy to have Ms Streeter return to that store and that that was taken into account on reinstatement, but it’s absent the question of impact in relation to the Commission’s consideration of valid reason.

PN721

And just again to correct the characterisation by my learned friend of our submissions on ground one, the proposition is not that the Commissioner was obliged to make a specific finding, the proposition is that there is a mandatory consideration to be taken into account and that wasn’t done. We do not submit that the Commission was obliged to make a finding of impact. That’s a merits factual kind of submission. What we say is the Commission did not take into account in considering whether there was a valid reason the impact of
Ms Streeter’s behaviour of her fellow employees. We don’t have to go on and say and should have found this. What we have to establish is that there was a failure to take that into account.

PN722

It’s a straight forward considerations argument which would found a submission of jurisdiction. Now, I did say in the course of this reply that I would take your Honours back to some of the other policies because there was a submission made by my learned friend about this to this effect. That there’s no independent ground about breach of policies because it relates to the same conduct, but it adds nothing was his submission. And in our submission precisely the opposite is true. It must always be relevant in our submission, not only whether particular conduct occurred or didn’t occur and how one characterises it, but that the employer had policies about that conduct.

PN723

In this case the evidence overwhelmingly showed Ms Streeter knew those policies, she had been trained in them, there was evidence, particular evidence that she had undertaken an E learn that the policies apply at off site and after hours work related functions. That’s at appeal book 406. And from an employer’s perspective, in our submission, it must be sound or defensible to take an employee’s breach of policies that have been promulgated, implemented and in which the particular employee has been trained in deciding whether there is a valid reason to terminate her employment. So the fact that the conduct overlaps doesn’t detract from the materiality of a breach of policies.

PN724

That’s not suggested and it never has been in this case that a breach alone in the circumstances of this case would justify termination, but it was something that was expressly relied on by Telstra. There was a lot of evidence about the training of Ms Streeter and her knowledge of those policies and it was completely omitted from his Honour’s decision making process. Pardon me. I did just want to draw to the Commission’s attention to connection between what is, in our submission, the obvious connection between the use in the termination letter to Ms Streeter of failing to respect Ms Andrews and the policies. The notion of respect in the policies, your Honours, the Commission will find at page 585 and following up to 586 and then again at 597.

PN725

Now, they are very broadly expressed and they are expressed in relation to all people and that might be perhaps some unenforceable aspirational kind of goal, but in relation to other employees the notion that an employer is entitled to expect one employee to show respect to another in that person’s dealings with an employee is hardly, in our submission, a surprising proposition and it’s in that aspect of the policies that was fastened on by Telstra in its termination letter. If the Commission pleases, I’m grateful for the Commission’s tolerance by way of my reply submissions. That completes the reply submissions.

PN726

SENIOR DEPUTY PRESIDENT ACTON: Thank you for your reply,
Ms Mortimer. Getting through in one day at least anyway. We’ll reserve our decision. We now adjourn.

<ADJOURNED ACCORDINGLY [6.25PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 DRAFT ORDER PN13
EXHIBIT #A2 WRITTEN SUBMISSIONS PN29
EXHIBIT #3 REFERENCES PN233
EXHIBIT #R1 RESPONDENT OUTLINE OF SUBMISSIONS PN235