PR948887 Note: An appeal pursuant to s.45 (C2004/5244) was lodged against this decision - refer to Full Bench decision dated 27 May 2005 [ PR958351 ] for result of appeal. PR948887 Download Word Document The attached document replaces the document previously issued with the above code on 5 July 2004. Appearances have been amended. Glenda Juergens Associate to Senior Deputy President Cartwright Dated 12 July 2004 PR948887 AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief in respect of termination of employment Ian Leslie Shanahan and University of Western Sydney (U2003/5661) SENIOR DEPUTY PRESIDENT CARTWRIGHT SYDNEY, 5 JULY 2004 Termination of employment. DECISION BACKGROUND TO HEARING [1] The University of Western Sydney (the Respondent) terminated Mr Ian Shanahan's (the Applicant) employment as a half-time Lecturer in music on 24 July 2003. He applied for relief under s. 170CE(1) of the Workplace Relations Act 1996 (Cth) ("the Act") on the grounds that the termination was harsh, unjust or unreasonable and sought reinstatement. The application was lodged on 13 August 2003 and, after conciliation was unsuccessful, Mr Shanahan elected on 8 October 2003 to proceed to arbitration. [2] I listed the matter for a directions hearing on 4 November 2003, at the request of the Respondent, and issued directions the following day incorporating the agreed timetable. A statement of agreed facts was to be filed by 19 November 2003, the Applicant's evidence-in-chief by 2 December 2003, evidence-in-chief from the Respondent by 17 February 2004 and any response from the Applicant by 16 March 2004, prior to hearing scheduled for 27 to 29 April, 17 to 20 May and 24 to 27 May 2004. [3] Having received neither the statement of agreed facts nor any material from the Applicant, I wrote on 18 December 2003 to the Applicant's solicitor, querying whether Mr Shanahan intended to proceed with his application. He lodged a short statement on 22 December 2003 together with a statement of agreed facts and an application for summons for the Respondent to produce documents. I re-listed the matter for directions and submissions on 30 January 2004. The Respondent sought an extension of time to file its evidence and complained that the Applicant's evidence-in-chief did not disclose what case it had to meet. Accordingly, the Applicant agreed to file and serve written contentions by 6 February 2004. The parties agreed between themselves on provision of documents by the Respondent, and I issued new directions with revised dates for filing materials and hearing dates set for 17 to 20 May, 24 to 27 May and 1 to 3 June 2004. The filing dates were varied again on 26 March 2004 at the request of the parties, without affecting the hearing dates. [4] The Respondent filed two witness statements on the due date of 16 April 2004 for its evidence-in-chief. In response to a claim from the Applicant on 27 April 2004 that the Respondent's evidence was in a form to which he was "unable to respond adequately", I listed a hearing on 28 April 2004. The Applicant sought a ruling on whether evidence filed by the Respondent was admissible and the Respondent sought a direction that the Applicant file amended points of contention. I decided to grant neither, noting that it is for each party to decide how to argue its case and present its evidence. Subsequently, additional materials were filed and served by each side prior to the hearing. [5] At the hearing on 17 May 2004, the Applicant was represented by Mr Wales of Senior Counsel and Mr Rogers of counsel, and the Respondent by Mr Miller of counsel. Three witnesses provided evidence for the Applicant and ten for the Respondent over six hearing days. WITNESSES [6] Late in 2002, eight students lodged written complaints, which the Respondent investigated largely as allegations of unwelcome conduct by Mr Shanahan, potentially breaching its Code of Conduct or policies on harassment or sexual harassment. 1 The end result was that the Respondent terminated the Applicant's employment for serious misconduct. Six of the student complainants gave evidence in the Commission hearing. Central to the Commission proceedings were allegations of "lifting and tickling" (as they came to be known) three of the four female students who made such complaints to the University. Since this alleged conduct and the evidence of the students is central to the Commission's deliberations, it is convenient to comment on the evidence of the witnesses. [7] Of the three, Ms Tsougranis' evidence occupied the most time. She was a diffident witness, deliberate in her answers. I had no doubt of the truthfulness of her evidence, nor of the genuineness of her response to the conduct complained of. I note that, unlike the Respondent's Misconduct Investigation Committee, I have had the opportunity to assess her evidence given in person. I cannot agree with the Applicant's counsel that her evidence is somehow to be discounted as coming from an oversensitive witness. [8] Neither Ms Kett nor Ms Jifkins were required long for cross-examination. In both cases, the "lifting and tickling" evidence was corroborated by other witnesses and in my view their testimony was truthful. In relation to Ms Jifkins' statement about the "smacking" incident, having the benefit of seeing the evidence in this case, I would need to be persuaded to depart from the Misconduct Investigation Committee's finding. That is, I shared the Committee's view of the relative reliability of the witnesses before me. [9] Mr Shanahan's evidence I comment upon later. "Character" references were provided by Professor Boyd and Associate Professor Evans, in the context of information supplied by Mr Shanahan and his solicitor. 2 On this basis neither had a full appreciation of the complaints against Mr Shanahan. Consequently, while I accept the general "character" evidence, their evidence was not persuasive on the particular conduct issues to be determined by the Commission. [10] The other witness whose evidence I should comment upon is Ms Spillane. I have no doubt as to the truthfulness of her evidence, and noted during her testimony the effort involved for her in giving it. [11] It will be apparent from what I have said above that, where there is conflict in the evidence, I have generally preferred the evidence of the female students. CHRONOLOGY AND FACTS [12] Having considered all of the evidence, I set out below a summary of the relevant facts and chronology. It incorporates findings of fact to the extent required: The University of Western Sydney appointed Mr Shanahan on 23 February 1996 as an Associate Lecturer (half-time) in the Department of Music. It was a "continuing" appointment, with provision for confirmation of tenure following satisfactory completion of a two year probationary period. Tenure was granted on 1 December 1998, following extension of the probationary period for a year. Over the three year probationary period, the Applicant was counselled on several occasions about "appropriate interactions" with students and the need to maintain "a professional distance . . . between staff and students". 3 On 14 August 2000 the Acting Chair of the School of Contemporary Arts wrote to the Applicant warning him over a breach of the Respondent's code of conduct in relation to professional relationships with colleagues, saying that "inappropriate behaviour in the future is likely to be regarded as serious misconduct and subject to disciplinary action". 4 In late October 2000 the Applicant took sick leave to deal with depression. The Respondent referred him to the NSW Government Medical Officer to determine whether he was fit to continue working. The medical officer responded on 13 November 2000 that the Applicant " ... appears to be suffering from Bipolar Disorder, and is not fit to teach until he is reassessed by HealthQuest in February 2001". 5 The Applicant also consulted a psychiatrist, Dr Teoh, on 19 December 2000, on referral from his G.P., and began a series of consultations through until early 2002. 6 Dr Teoh also prescribed medication. On 9 January 2001 Dr Teoh certified that the Applicant had "recovered sufficiently to return to his normal duties", which the Respondent accepted on 11 January 2001. In doing so, it reinforced the expectation that the Applicant's "...behaviour in the workplace is [to be] consistent with the University's policies and standards and in particular, with the standard set by the Code of Conduct". 7 The first incident giving rise to a written complaint from a female student, Ms Herbert, took place during the first semester of the 2002 University year. Ms Herbert alleges that the Applicant asked her questions about the situation with her ex-boyfriend, invited her out and made suggestions she considered inappropriate. 8 The Applicant denies this. 9 She consulted another staff member at the time but did not lodge a written complaint until 13 November 2002, wanting such behaviour which "pushed the boundaries" stopped for herself and others. 10 The three separate "lifting and tickling" incidents, about which the Commission heard direct evidence, occurred in August/September 2002. A fourth, found by the Respondent's Misconduct Investigation Committee to have occurred, was allegedly during "second semester 2002". 11 The Applicant lifted each of Ms Tsougranis, Ms Jifkins and Ms Kett against their will onto his shoulder and tickled them, or in the case of Ms Kett attempted to tickle her, either during classes or in the context of concert practice. 12 He denied this throughout the Respondent's investigation processes, gave evidence before the Commission that he could not recall any of these incidents 13 , but the Applicant's counsel conceded in closing submissions that they occurred. 14 I find each of these incidents did occur as described by the students. Ms Jifkins locates the time she was lifted and tickled by the Applicant as 9 August 2002. The corroborating witness, Mr Hart, locates it in October 2002. Another witness before the Misconduct Investigation Committee said that she heard about it on the same day that Ms Tsougranis was lifted and tickled in late August early September 2002. That tends to support Ms Jifkins' evidence on the timing. I am satisfied on the evidence that, before an ensemble class, the Applicant did tickle Ms Jifkins despite her protests and then, having told her to take off her glasses and stand up, lifted her over his shoulder and tickled her again. The precise date of the incident, within the timeframe August to October 2002, is not critical in my view. I am satisfied it occurred in that period and, to the extent it is necessary, would find that it occurred during August 2002. In each case, the student regarded the "lifting and tickling" as unwelcome conduct. Ms Jifkins gave evidence that, subsequently, in early September 2002 the Applicant hurried her to class, smacking her on the bottom with a folder. On her evidence, he then attempted to pinch her, said that "If things don't work out between you and your fiancée, you know where to come" and smacked her again. 15 The Applicant denies this, saying that he shooed her to class waving his folder. 16 On the evidence before me, I agree at least with the finding of the Misconduct Investigation Committee. On the balance of probabilities the Applicant at least touched Ms Jifkins on the bottom with his folder and made comments along the lines claimed by Ms Jifkins. In light of earlier events, she regarded it was unwelcome conduct. On 20 September 2002 a male student complained to the Head of the Music Department about the Applicant evicting him from class, alleging he was victimised and bullied. A process of mediation was apparently successful over the weeks following. Nevertheless, this complaint was investigated subsequently by the Misconduct Investigation Committee, which found that the allegations particularised had not been made out. Neither the Respondent nor the Applicant contended this incident was in issue in these proceedings 17 and I have taken no account of it in my considerations. The Applicant was involved in a fracas at Palm Beach on the night of 22 September 2002, as a result of which police charged him with 8 offences. He pleaded guilty when the matter was heard in the Local Court on 16 October 2002 18 and in accordance with section 10 of the NSW Crimes (Sentencing Procedure) Act 1999 received a good behaviour bond of 18 months. This result was subsequently upheld on appeal when the sentence was challenged as inadequate. As will be apparent later, I have not considered this incident relevant in the matter to be decided and have paid no regard to it. Beginning in September and running through to mid November 2002, the Applicant had a series of contacts with Ms Spillane, a student completing her Honours thesis in the Music Department. She told him she was having difficulty focussing on her thesis after breaking up with her boyfriend of 5 years, he complimented her, offered to proof-read her thesis and then followed up with a phone call to renew the offer to proof-read the thesis. He invited her to do this at his home and then to go to dinner "to cheer you up". 19 Ms Spillane accepted the offer of help and encouragement. After proof-reading the thesis on 5 October 2002 the Applicant drove Ms Spillane to Palm Beach where they had a drink sitting on the beach. He put his arm around her, kissed her on the forehead and told her that he had been in love with her for a long time. She gave evidence that she "was shocked and frightened as we were the only people on the beach". 20 She did not respond, but asked to be taken home. They had dinner on the way back, he told her that he wanted to have a relationship with her, they returned to his home, she refused his offer of coffee and she drove home. She notified her Honours thesis supervisor and sought assurance that the Applicant would not be assessing her thesis. She gave evidence that she was curt and distant in subsequent contacts, "to communicate my disinterest". The Applicant made numerous phone calls to Ms Spillane thereafter, many of which she did not answer. He conceded 7 or 8 telephone calls. 21 She alleged many more. In one of those calls, on either 12 or 13 October 2002, she told him she did not need his help on her thesis, but he continued calling. On 15 November 2002, Ms Spillane's mother answered her mobile phone and asked the Applicant to stop calling her daughter. After three more calls on 19 November 2002 (which he denied), the Applicant stopped calling. By that time he would have been aware that other students had lodged written complaints against him. Ms Spillane complained to the Respondent that the Applicant abused the trust of his role as a lecturer. 22 While much of the above was not in contention, I have considered all of the Applicant's evidence in setting out these events. I am satisfied on Ms Spillane's evidence that the Applicant's continued phone calls did occur and were unwelcome conduct after he was told on 12 or 13 October 2002 that his help on her thesis was not needed. Ms Tsougranis wrote her complaint, unprompted, to the Respondent on Monday 11 November, referring to the "lifting and tickling" incident, to being singled out in lectures for her Greek ethnicity, and to the Applicant's behaviour in the previous week. On Wednesday 6 November 2002 she was the only student to attend a tutorial in music composition with the Applicant. He invited her to his home to show her his compositions and suggested he shout her lunch after. She declined. Two days later, on Friday 8 November 2002, she had a piano ensemble class with another student (Ms Bush) and the Applicant. Having positioned music stands so that he could not sit close to her, she complained that he moved them aside, sat close to her, focussed his attention on her and touched her arm several times during her playing in a way not required to correct her mistakes. 23 She was distressed, left the class and went home. The Applicant telephoned her on her mobile phone as she was driving home and again several times the next day. She gave evidence she was highly disturbed by his behaviour and wrote her statement of complaint on Monday 11 November 2002. 24 I am satisfied that the touching incident which Ms Tsougranis complained of did occur and that, in the context of previous events, the Applicant's touching on 8 November was in Ms Tsougranis' eyes unwelcome conduct. Ms Stacker lodged a written complaint on 12 November 2002. She complained of the Applicant's personal questions and regular "encroachment on my personal space" over the last two to three years, including poking her in the ribs, tickling her and attempting to give her a massage. 25 Her evidence to this Commission is that she "did so in a bid to encourage his curbing inappropriate behaviour toward myself and other females while he continued working in the department" 26 . Her complaint was subsequently investigated by the University as part of the Misconduct Investigation Committee proceedings, and findings made on it. Her evidence to this Commission is that she did not want her complaint to contribute to termination of the Applicant's employment and, accordingly, her intention was to withdraw it. Consequently, I have not considered her complaint in the evidence before me, except to the extent of her evidence to the Commission on making and withdrawing the complaint. On 14 November 2002, the Deputy Vice-Chancellor (Resources) wrote to the Applicant. He referred to the previous complaint against the Applicant and said that he had received another four. It is apparent from the letter that he was referring to written complaints from Ms Tsougranis (11 November), Ms Stacker (12 November), Ms Jifkins (13 November) and Ms Herbert (13 November). The Deputy Vice-Chancellor (Resources), whom I now refer to as the DVC(R), wrote that the complaints required investigation and that Mr Stecenko, Investigations Officer, would investigate the complaints on his behalf. The Applicant was to have no contact whatsoever with the complainants. Complaints were also made by Ms Kett, Ms Bush and Ms Spillane, and included in Mr Stecenko's investigation. (The Commission received evidence from each of the seven female complainants, except Ms Bush.) It is apparent that some of the complaints had been prompted by enquiry from Dr Macarthur, Head of Program in the Music Department, as to whether incidents had occurred, but, on the evidence before the Commission, the students were not pressured to make a complaint. In making the complaint, each of the students wanted the conduct complained of to stop. The Applicant was interviewed by Mr Stecenko and made representations to the DVC(R) on 1 December. Mr Stecenko apparently submitted his report on 23 December 2002. 27 The DVC(R) wrote to the Applicant on 30 January 2003, indicating his intention to refer the complaints alleging inappropriate behaviour for formal investigation under Clause 49 of the University of Western Sydney Academic Staff Enterprise Agreement ( the Agreement ). "In accordance with the Agreement, a letter laying allegations of serious misconduct will be forwarded to you soon". 28 That letter, attaching 7 pages of allegations to be answered, was sent on 17 February 2003. Eleven allegations were made, accompanied by particulars for each. All but two of the allegations were of "unwelcome conduct" towards female students. A response was required by 7 March 2003. The DVC(R) wrote, I am concerned that the allegations articulated in the attachment to this letter may constitute serious misconduct, or, in the alternative, misconduct by you. ...you are suspended from duty on full pay effective immediately. ... Following consideration of your response, I will determine whether any or all of these matters must be referred to a Misconduct Investigation Committee or Investigating Officer, in accordance with Clause 49 of the Agreement . 29 "In early 2003", the Applicant again visited Dr Teoh for "a few sessions", which, on Dr Teoh's report, cannot have gone beyond the end of April 2003. 30 The Applicant responded to the DVC(R)'s letter through his solicitor on 5 March 2003. In one sentence, the response denied the facts alleged in the complaints, except to the extent of the Applicant's admission in his interviews with Mr Stecenko, and denied any misconduct or serious misconduct. The balance of the three page letter is concerned with alleged defects and demands about the Respondent's procedures for dealing with the complaints. 31 The DVC(R) duly responded on 11 March 2003, noting that the Applicant "... continues to deny the allegations made against him in our letter dated 17 February 2003 and relies on statements made during the preliminary investigations." The letter deals with process matters and concludes that "... the matter will be referred for further investigation in accordance with Clause 49 of the University of Western Sydney Academic Staff Enterprise Agreement 2001-2003." 32 On the same day, the DVC(R) also wrote to the Applicant advising him that the matter would be referred for further investigation and asking him to elect by 18 March 2003 whether to have the allegations referred to a Misconduct Investigation Committee or to an Investigations Officer, as provided for in the Agreement. Failure to elect would result in a Misconduct Investigation Committee being convened on 8 April 2003. 33 Further correspondence passed between the Applicant's solicitor and the Respondent, but the Applicant made no election between the investigation options offered. Accordingly, the DVC(R) wrote to the Applicant on 1 April 2003 notifying him that he was required to attend the Misconduct Investigation Committee convened for 8 April 2003. If he failed to attend, the matter would be heard in absentia . The letter set out each of the allegations to be investigated and the possible offence or offences associated with each allegation. It concluded by drawing attention to representation options available under the Agreement in the Misconduct Investigation Committee process. 34 The Applicant apparently chose to be represented by the National Tertiary Education Union, because it submitted a "supplementary reply" dated 4 April 2003 on his behalf. It referred to the allegations attached to the Respondent's letter of 17 February 2003. Each of the allegations of unwelcome conduct was denied. Particulars relating to each "lifting and tickling" incident were denied, in the case of Ms Tsougranis "denied in total", or in the case of Ms Jifkins "denied outright". Reasons were given as to why each of these could not have occurred. As to Ms Tsougranis' complaint of the Applicant's conduct on 8 November 2002, the Applicant at no time touched her on the arm or anywhere else. Various other particulars in support of each allegation were denied in the detailed 14 page response, which appears based on the Applicant's detailed recollection of events and circumstances. 35 The Misconduct Investigation Committee duly convened. On the basis of a medical appointment the Applicant sought postponement of a meeting set for 15 April 2003 to interview students. 36 This request was not granted. That meeting was attended by the Applicant's representative and videotapes of those proceedings were made available to the Applicant prior to the next proceedings on 17 April 2003. According to the Vice Chancellor, the Committee indicated that students interviewed in the Applicant's absence that day could be recalled for further questioning if the Applicant chose. That opportunity was not taken. 37 The Applicant and Respondent made lengthy final submissions to the Misconduct Investigation Committee in the second half of May 2003. The Applicant provided a 10 page critique of the evidence presented to the Committee, alleging, among other things, "an agent provocateur , positioned to wield power over both complainants and witnesses, has influenced them into making formal written complaints or statements against me." In his view, this was "... a malicious attempt by those involved to damage my position and reputation". The "lifting incidents" are denied - incidents which "I strongly continue to maintain did not occur". In relation to mitigating circumstances, the NTEU submitted: "If the Committee finds in favour of the University in relation to any of the facts, the NTEU formally requests the opportunity to give further evidence to the Committee in relation to mitigating circumstances, prior to the Committee's Report being forwarded to the Vice Chancellor." 38 The Misconduct Investigation Committee finalised its report on 10 June 2003. It referred to its terms of reference being "to report on the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances are evident" and said, "We have not commented, therefore, as to whether any offences appear to have been committed under any legislative provisions or whether University policies have been breached." 39 On Professor MacCallum's evidence, that was for others to determine. The Report set out each allegation and its supporting particulars, the Applicant's response to the allegation, made a finding as to whether the allegation was made out, and supported the finding with reasons, referring to material before it. Of the 11 allegations, the Committee found 2 were not made out, was unable to reach a conclusion on one, found 5 had been made out and the other 3 made out "substantially" or in part. All of the allegations related to "lifting and tickling" were found to be made out. The particulars relating to lifting Ms Kett were found made out in part, in that the Applicant lifted her off the ground. On mitigating circumstances, the Committee said: "Mr Shanahan's consistent blanket denials to most of the allegations makes it difficult for him to argue, and the Committee to find, mitigating circumstances" . It noted the NTEU's request to give further evidence in relation to mitigating circumstances after the Committee makes its findings and commented that, since the Agreement provides an opportunity for a response within five working days after completion of the Committee's report, the Committee did not consider it necessary to provide a further opportunity before the completion of the report. It is apparent that the Applicant did not raise with the Committee any medical considerations as mitigating factors or by way of explanation for the alleged conduct. The only medical information presented related to injuries from a motor vehicle accident in September 1999 and their effect on the Applicant's lifting ability, and injuries from an assault at Palm Beach on 10 May 2003 which delayed preparation of his final submission. He did not raise any psychiatric difficulty. 40 The Applicant responded to the report by letter to the DVC(R) dated 27 June 2003. 41 Among other things, the letter alleges failings in the Respondent's procedures which had denied him procedural fairness. It concludes: Be all that as it may, assuming for the purposes of the exercise that the findings against me in the "lifting cases" were justified, the question for determination by you is whether my conduct was such as amounts to misconduct or serious misconduct. Having regard to all the circumstances, it is my contention that a finding of serious misconduct could not be supported. Therefore, if there is misconduct at all, it must be of a lesser gravity then [sic] serious misconduct and, I also say, even then at the lower end of the range of conduct which could be thus categorised. The Committee has determined that my antecedents, record, character, etc are of no relevance to its deliberations. Whether the Committee is right or wrong in this respect, I claim that these are certainly matters which, in the proper exercise of your functions, you should take into account in your deliberations." Following the remaining steps in the Agreement process, the Report and the Applicant's response came to the Vice-Chancellor, Professor Reid, on 18 July 2003 for decision. 42 Professor Reid gave evidence that she considered both. 43 Indeed her letter of 24 July 2003 responds to several points the Applicant raised in his letter. She formed her own view as to whether there had been serious misconduct 44 and decided there had. 45 She was aware of the range of actions she could take and decided to terminate the Applicant's employment. 46 She did not take account of the Applicant's character, record and the likely effect of termination on the Applicant's ability to earn an income, 47 though, had she required, she could have accessed such information. Professor Reid notified the Applicant of her decision by letter of 24 July 2003, dealing with a number of points raised in his response of June 27 and concluding: "It follows that based upon the Committee's findings, the University now finds you guilty of serious misconduct in that your behaviour is of a kind, which constitutes a serious impediment to the carrying out of an academic staff member's duties, and that you are in serious dereliction of the duties required of an academic staff member. Your actions have broken the inherent trust relationship within your contract of employment and you have breached your duty of good faith and fidelity to the University of Western Sydney as your employer. Consequently due to the serious nature of this matter, the University has decided in accordance with subclauses 14.2 and 49.21(c) of the Academic Staff Enterprise Agreement 2001-2003 to terminate your employment effective from Thursday, 24th July 2003." SUBMISSIONS [13] Mr Wales submitted for the Applicant that there was a fundamental failing in the Respondent's decision process which went to valid reason 48 and which the Commission should take account of as a relevant matter. 49 The Misconduct Investigation Committee confined itself to determining the truth of the allegations without interpreting whether the Applicant's conduct contravened policy or misconduct occurred, while the Vice-Chancellor made no independent enquiry and relied on the findings of the Committee as sexual harassment. He argued that the Applicant's conduct lacked sexual motivation and that several of the students themselves regarded his conduct as playful or foolish horseplay. The Applicant's behaviour was explained by his medical condition, as being out of character. The conduct did not constitute serious misconduct or merit termination of employment, taking account of mitigating or appropriate factors overlooked by the Respondent and which are now before the Commission. On this last point he referred me to Dept of Social Security v Uink (1997) 77 IR 244. He also referred to the case of Schaale v Hoechst (1993) 47 IR 249 in connection with reinstatement and Black v Danka Datakey Pty Ltd (1997) 72 IR 423 on mitigation. [14] Mr Miller for the Respondent argued that the evidence establishes serious misconduct and on that basis the Respondent had valid reason for terminating the Applicant's employment. Mr Miller supported his contention by referring to comments by Wilcox CJ on "valid reason" in the case of Kenefick v Australian Submarine Corporation Pty Ltd (1995) 62 IR 107. He submitted that the Applicant's conduct should be seen in the context that his employment gave him a position of power and authority in relation to the students involving a duty of trust, which was breached. 50 He argued that the Applicant's evidence should be in large part rejected or otherwise given very little weight. RELEVANT LEGISLATIVE PROVISIONS [15] In determining whether the termination of the Applicant's employment was harsh, unjust or unreasonable, I must have regard to the factors in s.170CG(3) of the Act, and make findings on each of them. 51 [16] Section 170CG(3) provides as follows: "In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to: (a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and (b) whether the employee was notified of that reason; and (c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and (d) if the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination; and (da) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (e) any other matters that the Commission considers relevant." [17] Moreover, s.170CA(2) states an intention to ensure that, in consideration of an application in respect of a termination of employment, a "fair go all round" is accorded to both the employer and employee concerned. CONSIDERATION [18] A recent Full Bench of the Commission summarised "... the proper approach to be taken to a finding in respect of whether the termination based on misconduct was harsh, unjust or unreasonable..." 52 , listing principles drawn from previous cases, particularly with reference to fighting. I note that several of the enunciated principles are drawn from cases decided under the different scheme of the previous Act. I have applied the relevant principles in this case. [19] In considering whether termination of employment was harsh, unjust or unreasonable, I turn first to s.170CG(3)(a) - valid reason. [20] I have already made some findings of fact in setting out the chronology above, on the evidence before the Commission. I have considered evidence on the substance of complaints by five of the eight complainants whose statements were considered by the Respondent's Misconduct Investigation Committee. My findings do not differ markedly in those instances. I have already found that: The Applicant's continued phone calls to Ms Spillane did occur and were unwelcome conduct after he was told on 12 or 13 October 2002 that his help on her thesis was not needed. The Applicant lifted each of Ms Tsougranis, Ms Jifkins and Ms Kett against their will onto his shoulder and tickled them, or in the case of Ms Kett attempted to tickle her, either during classes or in the context of concert practice. In each case, the student regarded it as unwelcome conduct. The Applicant touched Ms Jifkins on the bottom with his folder and made comments along the lines claimed by Ms Jifkins. In the light of earlier events, she regarded this as unwelcome conduct. [21] I have come to a different conclusion to the Respondent's Misconduct Investigation Committee in relation to what I will call the Ms Tsougranis touching incident. With the benefit of seeing Ms Tsougranis' evidence before the Commission, I have found that the touching incident which she complained of did occur and that in the context of previous events, she regarded the Applicant's touching her several times on 8 November 2002 as unwelcome conduct. [22] In relation to Ms Herbert's complaint, the Misconduct Investigation Committee investigated two allegations of unwelcome conduct - the first of asking questions and making comments in relation to her personal life and asking her out; and the second of making statements and imputations of a sexual nature. 53 The Committee reported that it was not possible to ascertain whether the second allegation was made out, but was satisfied that the first was. The Applicant's statement in these proceedings 54 appears to deal with the first allegation. Particulars of the second were not put to him in his evidence before me. Accordingly, I make no finding on that. In relation to the first allegation, I see no reason to disbelieve Ms Herbert's evidence. She was a straightforward witness, in circumstances where neither the Respondent's investigation nor evidence in the Commission suggested unreliable recall or false evidence. With the benefit of seeing all the evidence, I accept that the Applicant asked questions about the situation with her ex-boyfriend, complimented her and asked her out. I do so in preference to the Applicant's denial that he asked her out. But the conduct complained of took place over six months prior to the written complaint and did not continue beyond her raising it with another staff member and with the Applicant himself. Given that I am not in a position to make any finding on the second part of Ms Herbert's complaint (that the Applicant also made inappropriate sexual references), in my view this first part of the complaint, on its own, six months later, is minor. In summary, I find that the Applicant did ask personal questions of Ms Herbert, complimented her and asked her out, but attach little significance to this finding in my considerations. [23] In making the findings above I have considered all of the Applicant's evidence, including his written responses during the Respondent's investigation process. He denied the "lifting and tickling" allegations with vigour throughout the Respondent's investigation processes. However, in these proceedings, his evidence was that, more correctly, he could not recall those incidents at all and it is possible they could have occurred. His lack of recollection may be explained, on Dr Teoh's statement, by difficulty recalling specific events during a period of hypermania. 55 I note, however, that the Applicant was able to remember other events in detail during this period. For example, he could remember shooing Ms Jifkins to class waving his folder, but not touching her. He could remember not touching Ms Tsougranis on 8 November 2002, and many other specific events from the relevant period. It was a category of events he could not recall. Having seen the Applicant's evidence I am not convinced by his inability to recollect or that I should prefer his evidence to that of the female students in these proceedings, even given Dr Teoh's statement. I have preferred the evidence of Ms Spillane, on the number and timing of phone calls and I have preferred the evidence of Ms Jifkins, Ms Tsougranis, Ms Kett and Ms Herbert in relation to specific incidents. [24] It was not argued in these proceedings that there was anything sinister in the number of complaints being lodged within a short space of time. In my view there was not. It was, however, argued that it would have been more appropriate for the Respondent to have had recourse to informal counselling on these complaints. It is apparent from the documents that the Acting Head of Department sought advice from the Respondent's Social Justice Unit on how to proceed, as envisaged by Clause 49.2 of the Agreement. In the light of the number of complaints, the similar nature of complaints and the period over which the conduct was alleged to have occurred, in my view the Respondent was justified in instigating the formal enquiry process set out in the Agreement. [25] The Misconduct Investigation Committee made factual findings on the material before it, including the Applicant's detailed responses. The Vice-Chancellor relied on the Committee's report in making her own judgement as to whether the findings amounted to serious misconduct, a term defined in Clause 3 of the Agreement. 56 She did not seek to make a separate decision on every incident, but made a judgement on the totality of the findings before her. 57 She considered the "lifting and tickling" findings improper conduct in the teacher/student situation. 58 She decided the Applicant's conduct was serious misconduct. Having considered the Applicant's response to the Report and the range of options available to her, she decided to terminate the Applicant's employment. [26] The Applicant attacks the Respondent's decision-making process on the basis that, while the Committee did not attempt to interpret its findings of fact, the Vice-Chancellor interpreted those findings as findings of serious sexual harassment. 59 Further, Mr Wales contended that sexual harassment required a sexual motive on the part of the perpetrator, 60 which he said is absent here. In my view, whether or not there was a sexual motive, the Applicant's conduct was improper. The "lifting and tickling" incidents were improper conduct in a University teacher/student situation. Mr Wales submitted that it was "simply stupid and ill advised tomfoolery". 61 The affected students who gave evidence in these proceedings on those incidents did not characterise it so. It was conduct they each regarded as unwelcome. Of the matters Ms Tsougranis complained of, this was her principle complaint. 62 Her view was that an apology and a promise not to repeat the conduct was not enough; in making her complaint she possibly wanted the Applicant dismissed for his conduct. 63 The continued phone calls to Ms Spillane and the Ms Jifkins "smacking" incident, though less serious in my view, contributed to the misconduct. Whether or not the Applicant's conduct was sexual harassment, in my view the conduct on which I have made findings was improper conduct for a University lecturer towards his female students. [27] Mr Wales submitted nobody would suggest that "such conduct in relation to students was anything but completely ill advised". 64 But it was not so serious as to warrant termination of employment. If such conduct persisted after warning, he said, the Respondent would be entitled to terminate employment. Warning, rather than termination of employment, was the appropriate response in the circumstances of this case. That is especially so, he argued, since, in reaching a decision the Respondent should have taken account of several factors not considered, such as the Applicant's character and record, the likelihood of him re-offending after a warning, the effect upon him of the decision and whether there are mitigating circumstances. 65 [28] I have considered all of these issues. I also have before me evidence which the Respondent did not have. I have considered the evidence of Professors Boyd and Evans as to the Applicant's character and his talent and standing as a composer. I have considered the evidence of Dr Teoh, Mr Wales arguing that it establishes that the Applicant's conduct in the latter part of 2002 was out of character. Though the Misconduct Investigation Committee was willing to consider medical issues as a mitigating circumstance, the issue was not raised. 66 Nor did the Applicant raise it in his first statement to the Commission. It was not until 7 May 2004, after the Respondent filed statements from the student complainants, that a medical explanation was offered for the Applicant's conduct. A week before the first day of hearing in this matter, on 10 May 2004, the Applicant's solicitor referred him to Dr Teoh for assessment. Dr Teoh saw him on 11 May 2004 for the first time in "more than 12 months". 67 The report was dated 14 April 2004, but should correctly have been dated 14 May 2004. The Applicant gave evidence that it was received on the first day of hearing, on 17 May 2004. I agree with Mr Miller that the inference is open that the Applicant saw Dr Teoh to get a report to put into evidence. 68 I am not persuaded that these factors mean that the Applicant should be held any less accountable for his conduct. [29] Even considering all of these issues, the Applicant's conduct as a lecturer lifting and tickling female students remains improper conduct in a University teacher/student situation. The other findings of inappropriate conduct as a teacher compound the impropriety. High standards are required of those in positions of trust. Such conduct is, in my view, unacceptable and constitutes serious misconduct within the meaning of the Agreement. It does not become so because the University has published a policy on harassment; in my view self-evident principles which any academic staff member can reasonably be expected to follow dictate that such conduct for a teacher toward students is unacceptable. Even allowing for different value judgements on this question, it cannot be said that a decision to terminate the Applicant's employment for conduct of this type is "capricious, fanciful, spiteful or prejudicial". In my view, it is "sound, defensible and well founded". 69 I find that there was a valid reason for the termination related to the Applicant's conduct. [30] It is apparent from the chronology above that the Applicant was notified of the reason related to his conduct prior to the Respondent's decision to terminate his employment. I find he was. There can be no argument that he lacked opportunity to respond to any reason related to his conduct. He did not. He was given an opportunity to respond to reasons for termination related to his conduct. [31] The question of unsatisfactory performance does not arise, so that s.170CG(3)(d) has no work to do in this case. [32] In relation to factors in s.170CG(3)(da) or s.170CG(3)(db), the Respondent sought to follow the process set out in the Agreement. It did so competently. Any procedural blemish in effecting the termination is not explained by size or lack of human resource management expertise. If there were to be any, the more likely explanation would be the complexity of the process itself. I have had regard to these factors, and find that neither factor of size nor lack of human resource management expertise impacted procedures in effecting termination in a way that would affect my determination. [33] In some cases, the question of the seriousness of the offence and thus the question of whether the punishment fits the crime has been considered as a factor under s.170CG(3)(e). In this case the question was posed whether the Applicant's conduct was valid reason for termination of his employment, rather than reason for a warning. In the way s.170CG(3)(a) is worded, the Commission must make a finding on whether there is "valid reason for the termination ... related to the conduct of the employee". 70 Thus, I have already considered whether the Applicant's conduct constituted valid reason for termination of employment. [34] In considering other relevant matters, I have had regard to the Applicant's length of service, to his standing as teacher and as a composer and to submissions that "for all practical purposes, his career lies in a university or conservatorium". 71 In this context it might be argued that termination of employment is harsh because if the termination stands the Applicant would have "markedly poor prospects of re-employment in any academic institution". 72 Mr Miller submitted that the evidence of Professors Boyd and Evans did not support that. However, I recognise that in practical terms termination of employment for serious misconduct will reduce the Applicant's prospects of academic employment. Is that justified where the Applicant's behaviour may have been explained by his bipolar mood disorder? The Applicant's evidence was that he continued to take his prescribed medication throughout 2002 and that if he missed taking it, it would only have been on the odd day. Dr Teoh says his prognosis is good provided he adheres "to a closely supervised treatment program for his bipolar mood disorder" 73 I have not been persuaded on the evidence that I should give such weight to the possible medical explanation as to outweigh the considerations that led to termination of the Applicant's employment. Both the Applicant's counsel and Dr Teoh refer to him as "socially awkward". On the evidence of Professor Boyd, universities are institutions that tolerate an amount of eccentric behaviour. The Applicant is unlikely to be the only socially awkward academic. Unfortunately for the Applicant, the same high standards of conduct towards students are required of all. [35] All of these factors prompt sympathy for the Applicant and his situation. But in the circumstances of this case, they do not persuade me that the termination is harsh, unjust or unreasonable. The Respondent also has a duty to its students, failure of which the community judges harshly. Serious consequences flowed from the Applicant's conduct. However, the termination of employment does not thus become, in my view, harsh, unjust or unreasonable. I determine that it was not. I am particularly of this view applying a fair go all round, having reached the same conclusions as the Respondent. I dismiss the application. ORDER 1. The application under s.170CE (1) of the Act is dismissed. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Appearances I Wales, of Senior Counsel, with A Rogers, of counsel, for the Applicant. J Miller, of counsel, for the Respondent. Hearing details: 2004 Sydney May 17 to 20 May 24 and 27 Printed by authority of the Commonwealth Government Printer <Price code E> 1 See Exhibit R-8, tab 9. 2 Exhibits R-14 and R-15. 3 Exhibit R-3. 4 ibid. 5 ibid. 6 Exhibit A-4. 7 Exhibit R-3. 8 Exhibit R-12, Transcript PN3689, as corrected by Auscript on 31 May 2004. 9 Exhibit A-3. 10 Exhibit R-12, Transcript PN3690-3697. 11 Exhibit R-8, tab 16. 12 Exhibits R-7, R-11, R13. 13 For example Transcript, PN 1957-1958. 14 Transcript, PN 3974-3979. 15 Exhibit R-11. 16 Transcript, PN1969. 17 Transcript, PN4105-4106 18 Transcript, PN1983-84. 19 Exhibit R-9, para 6. 20 Exhibit R-9, para 10. 21 Transcript, PN1379-1380. 22 Exhibit R-9. 23 Transcript, PN2691, 2978-2981, 3006-3008. The Applicant's statement to the Misconduct Investigation Committee was that he "was repeatedly stopping her by verbally asking her to stop. At no time did Mr Shanahan touch Ms Tsougranis on the arm or anywhere else" (Exhibit R-8, tab 10). Having seen the evidence of both, I prefer Ms Tsougranis' evidence. 24 Exhibit R-7. 25 Exhibit R-8, tab 13. 26 Exhibit A-7. 27 Exhibit R-8, tabs 3 and 6. 28 Exhibit R-8, tab 5. 29 Exhibit R-8, tab 6. 30 Exhibit A-4, Transcript PN 1893. 31 Exhibit R-8, tab 7. 32 ibid. 33 Exhibit R-8, tab 8. 34 Exhibit R-8, tab 9. 35 Exhibit R-8, tab 10. 36 Exhibit R-8, tab 11. 37 Exhibit R-1. 38 Exhibit R-8, tab 15. 39 Exhibit R-8, tab 16, page 2. 40 Transcript, PN 1870-1872. 41 Exhibit A-8. 42 Exhibit R-1. 43 Transcript, PN1513-1519. 44 Transcript, PN1528. 45 Transcript, PN1548-1551. 46 Transcript, PN1534-1539. 47 Transcript, PN1483-1508. 48 Transcript, PN4299. 49 Transcript, PN4306-4307. 50 Transcript, PN4169-4171. 51 See for example, Edwards v Giudice (1999) 94 FCR 561 at 565 [5] (Moore J); Chubb Security Australia Pty Ltd v Thomas (Print S2679, 2 February 2000, McIntyre VP, Marsh SDP and Larkin C) at para [39]. 52 Culpeper v Intercontinental Ship Management Pty Ltd (PR944547, 23 March 2004, Marsh SDP, Blain DP and Hoffman C) at para [19]. 53 Exhibit R-8, tab 16. 54 Exhibit A-3. 55 Exhibit R-4, page 5. 56 Transcript PN 1528, 1549. 57 Transcript PN 1594, 1635,1691. 58 Transcript PN 1640 - 1643. 59 Transcript PN 3923, 3936. 60 Transcript PN 3923. 61 Transcript PN 3981. 62 Transcript PN 2933. 63 Transcript PN 2794 - 2796. 64 Transcript PN 3980. While this submission was made with reference to "lifting and tickling" incidents, submissions following could be applied also to other findings on the Applicant's conduct. 65 Transcript PN 4012. 66 Transcript PN 3997, 4002 - 4003. 67 Exhibit A-4. 68 Transcript PN 4234. 69 Northrop J, Selvachandran v Peteron Plastics Pty Ltd , 1995. 70 That was not the case when matters were decided under the previous Act. 71 Exhibit A-11. 72 Exhibit A-11. 73 Exhibit A-4.