Industrial Relations Commission New South Wales

• Medium Neutral Citation: Public Service Association and Professional Officers' Association amalgamated Union of New South Wales (on behalf of Andrew McCaskill) and Department of Attorney General and Justice [2014] NSWIRComm 1009
• Hearing dates: 18 and 19 February 2014
• Decision date: 17 April 2014
• Jurisdiction: Industrial Relations Commission
• Before: Tabbaa C AM

Decision

Claim upheld.

• Catchwords: Unfair Dismissal; Inappropriate, unacceptable and unprofessional conduct; breach of confidentiality; treatment meted out to Applicant to harsh compared to the treated meted out to another Officer in similar circumstances; reinstatement ordered with strict conditions attached.
• Legislation Cited: Industrial Relations Act 1996; Crown Employees (Public Service Conditions of Employment) Award 2009; Government Sector Employment Act 2013 (formerly Public Service Employment and Management Act 2002); Anti-Discrimination Act 1977 (NSW)
• Cases Cited: Alexander v Commissioner of Police [2009] NSWIRComm 3; Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288; Johnston v Commissioner of Police [2007] NSWIRComm 293; NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123; NSW Attorney General's Department v Miller [2007] NSWIRComm 33; B Rose v Telstra Corporation Limited (Print Q9292, 4 December 1998)
• Category: Principal judgment
• Parties: Mr Andrew McCaskill and Department of Attorney General and Justice
• Representation: Mr I Latham (Counsel for the Applicant); Mr M Easton (Counsel for the Respondent); Ms A Dorahy, Hugh & Associates, Lawyers; Mr G Boyd, Crown Solicitors Office (Respondent)
• File Number(s): IRC 981 of 2013

DECISION

Background

1 The Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (the Association), on 29 November 2013, lodged a claim pursuant to section 84 of the Industrial Relations Act 1996 (the Act), with regards to the alleged unfair dismissal of Mr Andrew McCaskill (the Applicant) by the Department of Attorney General and Justice (the Department).

2 The following is a chronology of the Applicant's employment status with the Respondent since his commencement:

28.06.1993 Temporary appointment as Clerical Officer, Class 1, in the District Court;

xx.08.1994 Permanently appointed to that position;

06.06.1997 Temporary appointment as Client Services Officer, Clerk Grade 1-2 (Personnel) Human Resources Branch

25.05.1998 Permanently appointed to the position of Client Services Officer, Clerk Grade 1-2 (Personnel), Human Resources Branch

17.11.1998 Permanently appointed to the position of Senior Client Services Officer, Clerk Grade 3-4, Human Resources Branch

15.03.1999- Period of authorised leave without pay

12.01.2001

04.04.2002 Temporary appointment as Team Leader (Recruitment), Clerk Grade 5-6, Corporate Human Resources

18.05.2007 Direct appointment as Recruitment Coordinator, Clerk Grade 7-8

12.10.2009 Temporary appointment as Project Officer (Policy & Client Services), Clerk Grade 7-8, Court Services at the Downing Centre Local Court.

06.11.2011 Permanently appointed to that position.

3 The Applicant, a 45-year old male, was employed pursuant to the provisions of the Crown Employees (Public Service Conditions of Employment) Award 2009 up until his dismissal on 20 December 2013.

4 On 13 December 2012, Ms G lodged a complaint with Ms Pam Olseon, Senior Registrar Metropolitan, with regards to the inappropriate conduct of the Applicant and her line Manager, Mr Craig Cooke, on 7 December 2012 at a Christmas Party hosted by the Social Club of Downing Centre Courts at Strattons Hotel. Ms Olseon referred the complaint to Ms Cathy Szczygielski.

Ms Olseon noted that neither Ms G nor Mr Corkhill had been intoxicated on that evening.

5 On 19 December 2012, correspondence was forwarded to the Applicant from Ms Cathy Szczygielski, Assistant Director, Court Services, regarding the incident on 7 December 2012. He was required to respond by 18 January 2013 to the following allegations which, if proven, would constitute inappropriate, unacceptable and unprofessional behaviour on his part:

Inappropriately touched an employee of the Department, namely Ms I, twice on the breast.

Inappropriately touched an employee of the Department, namely Ms G, twice on the breast.

Disclosed confidential information to another employee of the Department, in that he told Ms B that she had not been successful in her application for a position of Registrar of a Tribunal. The recruitment action for that position had not yet been finalised and providing such advice was not within his usual range of duties.

6 The Applicant responded on 21 December 2012 sincerely apologising to all concerned pointing out that he had not intended to offend either of the women and that what he did, as a gay male, was in good humour, particularly as he was good friends with Ms I outside of work. In addition, he stated that he had obtained permission from both women to touch them and would not have done so otherwise. He could not recall the alleged breach of confidentiality incident. He pointed out that he was appalled and ashamed of his behaviour, it was uncharacteristic behaviour on his part and laid the blame squarely on the fact that he had missed lunch and drank too much alcohol. He further pointed out that he rarely socialised with staff from the Department and gave an assurance that the behaviour would never be repeated.

7 A preliminary investigation was conducted by Michael Ashwood, Principal Investigator, Investigations Branch, Corrective Services NSW. The Applicant was interviewed on 19 February 2013 by Mr Michael Ashwood and Mr John Glasheen.

8 On 18 March 2013, Mr Ashwood presented a Preliminary Investigation Report to the Acting General Manager of his Department.

The preliminary investigation revealed that

Mr Cooke admitted that he had been drinking but denied that he was drunk, denied any knowledge of the allegation or recollection of it; denied that it was in his usual behaviour; and pointed out that he would have admitted it if he had done it;

Mr McCaskill reported on the effect of alcohol on him; admitted touching both Ms I and Ms G; said he had the consent of both women; said he would not have touched them if he did not have consent; admitted that his behaviour was appalling and apologised for it;

Mr Cooke said he did not see Mr McCaskill make any inappropriate approaches to either Ms I or Ms G but did see him touch the breasts of two Sheriffs Officers, Ms K and Ms *DB. He said he distinctly recalled saying to him "Andrew, you can't do that" and then saying to them, "don't worry girls he's gay" in order to reduce any distress they may have been feeling.

(* It is noted that the identity of the second Sheriff's Officer was not known at that point in time.)

Mr McCaskill admitted to divulging confidential information to Ms B.

It was concluded that the alleged inappropriate behaviour towards the Sheriffs Officers could not be sustained. The Report found that the allegations in relation to Ms G, Ms I and Ms B were, on the balance of probability, sustained.

9 The Preliminary Investigation report found:

that there was sufficient evidence to commence a disciplinary investigation in respect to the allegations against the Applicant in relation to Ms I, Ms G and Ms B; and

that the allegations in respect to Ms K and Ms DB were not sustained. Nevertheless, the Applicant had admitted to them.

The Report recommended that the allegations against the Applicant be considered for Investigation in accordance with the Procedural Guidelines for Dealing with Misconduct as a Disciplinary Matter (the Guidelines).

It is noted that the allegations against Mr Cooke were considered to be more serious in nature in view of both his position and in the context of the evidence gathered during that investigation and his emphatic denials.

10 A recommendation by Mr Pete Cherry, Employee Relations Officer, to initiate a disciplinary investigation into the following allegation was approved by Mr Laurie Glanfield, the then Director-General, on 20 May 2013:

Mr Andrew McCaskill, Project Officer Grade 7/8, Court Services, is alleged to have engaged in misconduct by inappropriate touching of four (4) female employees and disclosing confidential information while at an after hours work related function. Employee Relations Unit (ERU) recommends a disciplinary investigation be initiated.

11 Correspondence was forwarded to the Applicant on the same day by Mr Glanfield advising of the above determination. He advised the Applicant of what disciplinary actions were available to him to take should a finding be made that the Applicant had engaged in misconduct.

12 Mr Glanfield appointed Ms Wendy Klaasen, a Consultant, to undertake an investigation and prepare a report into an allegation that the Applicant may have engaged in misconduct.

13 Sheriff's Officer DB was interviewed on 29 May 2013. She was not in attendance at the Christmas Party but was drinking with friends at the Hotel when the Applicant squeezed both her breasts from behind for one or two seconds. She admitted that she had been taken by surprise but stated that she had not taken any offence and had a bit of a giggle with the group of friends she had been drinking with. She said that she did not feel that a complaint was warranted.

14 Sheriff's Officer K was interviewed on 7 June 2013. She stated that she "vaguely" remembered the Applicant brushing her breast briefly. She said that she had not taken offence as she recalled a reference being made about him being gay.

15 The Applicant was interviewed on 13 June 2013. He provided detailed reasons as to his state of mind when he organised to meet friends after work. He had quite a few glasses of white wine, then had a few red wines before he attended the Christmas Party. He insisted that he had touched Ms I at another hotel during someone's birthday party and she had joked about it afterwards. He insisted that he would have had consent before he did it. He could not recall telling Ms B that she had been unsuccessful in her job application. However, he conceded that he may have relented and told her. He said she had asked him on numerous occasions over the previous two weeks if the results of that recruitment had come back and had asked him again that night. He insisted that he has never disclosed any recruitment information to anyone, nevertheless, he was prepared to accept what Ms B because he had a good working relationship with her and trusted what she said. Once again, he was prepared to concede that he did do it if she said that he put his head on her chest.

16 The Investigator held that the Applicant's behaviour constituted a breach of the Code of Conduct, Departmental policies and guidelines and was contrary to the role he played. It was recommended that the matter continue to be treated as a disciplinary matter.

In saying that, however, the Investigator recommended that the Director-General have regard to the Applicant's earlier and repeated admissions, his expressions of remorse and willingness to apologise, and his stated self-remediation in relation to excessive alcohol consumption and behaviour towards women in a social setting.

17 On 16 August 2013, Mr Brendan Thomas, the Acting Director-General, found the Applicant in breach of the Code of Conduct. The Applicant was advised, in correspondence dated 5 September 2013, that he had been found guilty of misconduct.

18 On 5 September 2013 the Applicant was found guilty of misconduct - he alleged that the finding was made without him being afforded an opportunity to show cause why disciplinary action should not be imposed.

19 On 20 September 2013, the Applicant wrote to Mr Brendan Thomas, the Acting Director General, seeking, in accordance with the Disciplinary Procedure, a meeting to discuss the incident. On 23 September 2013, the Applicant forwarded a submission to the Acting Director-General to which he attached two character references.

20 The Applicant was provided with an opportunity to make oral submissions to the Acting Director-General on 26 September 2013.

21 On 20 November 2013, the Applicant received written notification of the Acting Director General's decision. In the correspondence, dated 13 November 2013, the Applicant was directed to resign within 7 days from the date of the letter.

22 The Applicant was later granted an extension of time up to close of business on 4 December 2013 to tender his resignation. However, that resignation was not forthcoming. Rather, on 2 December 2013, the Association filed an application pursuant to section 84 of the Industrial Relations Act 1996 (the Act) alleging that the Respondent had threatened the Applicant with dismissal.

23 On 20 December 2013, the Applicant was notified by letter from Mr Andrew Cappie-Wood, the Director General, dated 13 December 2013, that he was to be dismissed from the Public Service effective from the date of service of that letter.

24 Conciliation proceedings before Newall C on 3 and 10 December 2013 were unsuccessful and standard directions were issued.

25 The matter was listed for hearing on 18 and 19 February 2014 at which time Mr I Latham, Counsel, appeared on behalf of the Association and called evidence from the Applicant. Mr M Easton, Counsel, appeared on behalf of the Respondent.

26 The Applicant did not require any of the complainants for cross-examination. In addition, the Applicant suggested that the names of the complainants be withheld in order to save them from further personal and professional embarrassment.

27 Mr Latham argued that the decision to dismiss the Applicant was made without taking into consideration the mitigating factors and arguments that the Applicant presented which allowed for alternative and more favourable solutions, being:

That the incident was a one-off event

That he deeply regretted his actions and was filled with regret and remorse; and

He was under the belief that he had consent

28 In conclusion, it was pointed out that the Applicant had, except for the incident on 7 December 2012, a good disciplinary record and was good in his role. It was argued that the decision to dismiss him was harsh. The Applicant was seeking an Order to reinstate him to his former position on terms no less favourable than when he was employed.

The Complaints

29 At some time after 8 pm on 7 December 2012, whilst in the downstairs smoking area of the Strattons Hotel, where they were attending a work related social function, Mr McCaskill squeezed one of Ms I's breasts for a couple of seconds then squeezed one of Ms G's breasts for two or three seconds. He had moved closer to her until he was about ½ a metre away and lowered his head to her breast level. Ms G had objected vocally and emphatically. He touched Ms I's breast again and said "Hers are better". He turned back towards Ms G but she stepped back. She left and went back upstairs into the function room of the Hotel.

30 At some time between 5.30 pm and 7 pm on 7 December 2012, Mr McCaskill, while downstairs in the Strattons Hotel, approached Sheriff Officer DB from behind and squeezed her on the breast. He also touched Sheriff Officer K on the breast.

31 At around 6 pm on 7 December 2012, while she was sitting at the bar with other staff, the Applicant disclosed confidential information to Ms B to the effect that she had not been successful in her application for a position with a Tribunal in circumstances where the recruitment process had not been finalised and the provision of such advice was not part of his usual duties.

32 Also during that function, it was alleged that he had placed his head on the chest of Ms B.

The Evidence

33 Mr Andrew McCaskill filed a written statement in which he advised that since he commenced employment with the Respondent on 28 June 1993, he has held various positions culminating in the position of Project Officer (Policy and Client Services) in 2011, a position which he held until his dismissal on 20 December 2013.

34 The Applicant provided details of his strong disciplinary record, recognition of his services by the Department and his achievements within the Department.

35 The Applicant provided the Commission with details as to why he was upset and depressed on 7 December 2012. The cancellation of his plans for that evening led him to go out with friends for a liquid lunch and then to attend the Downing Centre Christmas Function that evening although he had not planned to.

He reported that, by about 4.00 pm, he had consumed two bottles of white wine and 1-2 glasses of red wine. He reported that he had not consumed any food prior to consuming the alcohol.

36 The Applicant stated that he went to the Stratton Hotel at approximately 7.00 pm where the Downing Centre Christmas Function was being held. Although he had not been invited to that function, he had attended after being urged by Mr Craig Cooke and Ms B to do so.

37 The Applicant conceded that he was intoxicated by the time the incident occurred, and admitted that his intoxication impaired his level of judgment.

38 The Applicant reported that he had consumed more drinks at Stratton Hotel, before meeting up with Ms I, Ms G and Mr Stephen Corkhill. During cross-examination, the Applicant did not refute the recollection of all those persons. He admitted that the incident occurred. He also recollected that it occurred outside the Stratton Hotel as opposed to inside the Hotel as reported in his statement.

39 The Applicant stated in his written evidence that, at the time he touched Ms I's and Ms G's breasts, he believed he had done so with their consent. He stated that he would not have touched them had he not obtained prior consent. Nevertheless, he conceded, during cross-examination, that it was likely that he had not asked for their permission at the time of the incident.

40 The Applicant also stated in his written evidence that, at the time he touched Ms K and Ms DB's breasts, he had asked for their consent prior to doing so. Once again, during cross-examination, he conceded that it was likely that he had not asked for their permission at the time of the incident.

41 The Applicant stated that during the course of the night he had conversed with Ms B in relation to her application for a position on a Tribunal. He admitted that he divulged confidential information in relation to her application when he was not in a position to do so. He also admitted that he had touched Ms B's breasts during that conversation but believed that he had obtained her consent.

42 The Applicant pointed out that when, on 19 December 2012, he was asked to explain his behaviour on that evening, he had expressed remorse but noted that his actions were in good humour. He had also pointed out that his level of intoxication had impaired his judgment.

43 The Applicant pointed out that the incident occurred outside of work. Nevertheless, he conceded that work functions still require attendees to conduct themselves in accordance with the Respondent's Code of Conduct.

44 The Applicant acknowledged that his actions were deplorable. He pointed out that he had expressed remorse very early and that he continued to feel remorseful for his actions. Nevertheless, he argued, the decision to dismiss him as a result of his actions on 7 December 2012 was harsh, unjust and/or unreasonable given that a senior manager, Mr Craig Cooke, who had behaved in a similar fashion, had been dealt a lesser punishment by being demoted. In addition, he felt that his 20-year service and his substantial contribution to the Department should be taken into consideration.

45 The Applicant argued that reinstatement to his former position would not be impracticable for the following reasons:

given his limited interaction with the complainants;

he was on neutral terms with Ms I, Ms K, and Ms DB;

his otherwise good disciplinary record;

where any conflict of interest arises in the course of recruitments, the relevant procedures already in place to take care of such situations would be followed;

the strong character references he had tendered; and

given that he had continued to work in his full capacity as a Project Officer throughout the investigation and up until his dismissal on 20 December 2013.

46 In conclusion, the Applicant pointed out that he was aged 45 years and worked for the last 20 years within the Department in several capacities. He pointed out that he found his position as Project Officer (Court Services) to be the most fulfilling. He contended that his job was his life given his personal circumstances and his sexual orientation. He assured the Commission that the incident was a one-off incident which had occurred as a result of personal issues he was going through at the time of the incident. He repeated that he was very remorseful and had been taking steps to address some of those personal issues, including his binge drinking.

47 The Applicant recognised that some form of punishment would need to be applied for his behaviour on 7 December 2012. He made the following suggestion:

that he be re-engaged at the base increment of clerk 7/8;

that he be required to undertake training in EEO/sexual harassment;

that a warning letter be placed on his personnel file;

that he be required to provide a written apology to each of the complainants; and

that no back pay be awarded for the period between the date of the dismissal and his re-engagement although continuity of employment would be maintained.

48 The Respondent tendered affidavits prepared by Ms G, Mr Stephen Corkhill and Leanne Atkinson, along with the disciplinary report and transcripts of interviews conducted in relation to the disciplinary investigation against Andrew McCaskill.

49 Ms G stated she had never socialised with the Applicant prior to the Christmas party 2012. In addition, she described him as "an occasional work colleague". She noted that the Applicant was already intoxicated when he arrived at the party.

50 She stated that, at about 8 pm, as she and Mr Corkhill approached Mr McCaskill and Ms I who were standing together on the footpath outside the hotel, she noticed that the Applicant had his hand on Ms I's breast. He then removed it, moved closer to Ms G and when he was about arm's length, "maybe ½ a metre", he reached out his left hand, touched her left breast and squeezed for about 3-4 seconds. He had lowered his head down to about her breast level. She had called out "What the fuck! None of that!" and pulled back. She said that as the Applicant turned back to Ms I and reached for her breast again, he said, "Hers are better". After a couple of seconds he turned back towards Ms G but she took a couple of steps back.

51 As confirmed by the evidence, Ms G was not drunk at any time during the evening and certainly not at the time that the incident occurred with the Applicant. She was emphatic that at no time had she given permission to the Applicant to touch her breast and, in any event, the movement had occurred so quickly that there was no time for any conversation between them.

52 Ms G said she left the sidewalk and headed back upstairs and was followed by Mr Corkhill who expressed concern for her and advised her to report it to Mr Craig Cooke. At about 9.30 pm, as she was sitting on a bar stool around a table in the upstairs function room with Mr Corkhill and Mr Cooke, Ms I walked over to them. Mr Corkhill told Mr Cooke what the Applicant did to both women earlier. Mr Cooke's reaction was to reach over and grab Ms I on the breast and hold it there for about two seconds before reaching over and touching Ms G on her left breast saying "Its okay. We're gay". Mr Corkhill objected saying "You can't touch there" to which Mr Cooke questioned why because a former co-worker, Alana, used to allow him to do that.

53 Ms G said she was aware that Mr Corkhill and Mr Cooke kept talking but she did not hear what they were saying, "I wasn't thinking clearly because I'd just been felt up by my boss".

54 Mr Stephen T'ai Corkhill, Court Services Manager, stated in his statement that he was confident that the Applicant did not make any request to touch the breasts of either of those women. Mr Corkhill recounted the incident just as described by Ms G although he could not recall the words that were exchanged between them. He recalled that he said to the Applicant "Mate. That's not on."

55 He stated that he had been offended by the Applicant's unacceptable conduct, however, being of a similar grade, did not feel it was appropriate to take it any further with him than the comment he had made. He thought it would be more appropriate to raise it with Mr Cooke who was not only his direct supervisor but was more senior to the Applicant. Mr Corkhill stated that, as he followed Ms G into the function room, he told her that he was going to report it to Mr Cooke but she asked him not to.

56 Later in the evening, as he and Ms G and Mr Cooke were sitting around a table, they were joined by Ms I. He stated that he said to Mr Cooke, "When we were outside Andrew has grabbed [Ms I] and [Ms G] on the tits. It's not on". Mr Corkhill said that Mr Cooke responded by saying, "That's okay. We're gay" and then immediately reach out with his right hand and touch Ms I on one of her breasts. He held his hand there briefly then reached over with the same hand and touched Ms G on the left breast.

Mr Corkhill said that he held out his arms indicating a space of about 15 -20 cm between them, looked at Mr Cooke and said, before walking away, "For me, that's the difference between me loosing my job or not and probably getting a smack in the mouth".

57 Ms Leanne Atkinson, stated that, in her role as Employee Relations Officer, she was required to assist in the administration and co-ordination of employee relations issues impacting across the Department, including employee relations advice and services to the Executive, management and staff relating to disciplinary matters and grievance handling.

58 Ms Atkinson advised that a result of Ms G's complaint to Ms Pam Olseon, Senior Registrar Metropolitan, about the Applicant's alleged inappropriate conduct on 7 December 2013, the matter was referred to Ms Cathy Szczygielski who initiated a preliminary investigation into the alleged inappropriate conduct.

59 There followed a Preliminary Investigation report as a result of which Ms Klaasen was appointed to conduct a formal disciplinary investigation into the matter.

The Acting Director General made the decision on 16 August 2013 determining that the Applicant was guilty of misconduct.

60 Ms Atkinson stated that, as at 5 September 2013, only a finding of serious misconduct had been found but a final decision had not been made and the Respondent was still considering its options. Ms Atkinson said she advised the Applicant of the decision made by the Acting Director General and the relevant options available as per cl 13 of the Procedural Guidelines. She also advised him that he had the option to seek a meeting with the Acting Director General to explain the circumstances. He chose to pursue that option and made such a request on 6 September 2013. The interview with the Acting Director General was held on 23 September 2013 at which time the Applicant also provided a written submission.

61 Ms Atkinson pointed out that one of her duties was to prepare briefing material for the Director General in relation to disciplinary decisions of that kind. She stated that she conducted an analysis of all the relevant material and prepared a brief which she submitted to the Acting Director General on 13 November 2013. She gave evidence that, in accordance with protocol, she made recommendations to the Acting Director General in relation to the matter. She pointed out that it was then up to the Acting Director-General to make a decision taking into account all considerations and circumstances of the investigation. The Acting Director General elected to direct the Applicant to resign. He advised the Applicant of his decision on the same day pointing out that if he did not take up that option within 7 days of receipt of that correspondence, he may be dismissed from the NSW Public Service pursuant to s46 of the Public Sector Employment and Management Act 2002.

62 During cross-examination, Ms Atkinson confirmed that she had drafted the document titled "Implementation of Final Decision - Mr Andrew McCaskill" which was ultimately signed off on by Mr Brendan Thomas, then Acting Director General.

That document contained a statement to the effect that the belief was held that the Applicant was not fit to perform the range of his duties and responsibilities of his position. The Acting Director General was not provided with any information to the contrary when he approved her draft document. Yet the Applicant had not been suspended from duty but had continued to work in his role for the 12 months following the lodgement of the complaint against him, performing the range of his duties and responsibilities for the position.

63 Also in the draft document prepared for the then Acting Director General, Ms Atkinson had concluded that the Applicant's continued employment also had the potential to undermine the integrity and reputation of Courts and Tribunal Services and the Department. During cross-examination, Ms Atkinson was unable to demonstrate if the Applicant's continued employment for 12 months after the incident had resulted in such an outcome.

64 Ms Atkinson distinguished between the actions of both men pointing out that the Applicant's conduct involved more women and, in addition, involved a breach of confidentiality issue. She confirmed, during cross-examination, that Mr Cooke had denied all the allegations and therefore had not shown any remorse. Ms Atkinson stated that she had discussions with the Acting Director General and the following distinguishing features were identified:

* The admissions made by the Applicant; Mr Cooke had denied the allegations;

* The seniority in terms of the role performed. The Applicant's responsibilities included a human resources function across Court Services. Mr Cooke was more senior in terms of his employment classification, however, his human resources responsibilities related to day to day management;

* Significant breaches of the Code of Conduct, the Dignity and Respect Policy and the Recruitment and Selection Policy.

65 Ms Atkinson confirmed during cross-examination that Mr Cooke directly supervised staff and therefore also undertook human resources functions while the Applicant did not supervise any staff.

Relevant Legislative Provisions

66 Part 2A, Prohibition of sexual harassment of the Anti-Discrimination Act 1977 (NSW) relevantly states:

22A Meaning of "sexual harassment"

For the purposes of this Part, a person sexually harasses another person if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

Section 22B Harassment of employees, ....

(1) ....

(2) It is unlawful for an employee to sexually harass a fellow employee or ...

THE SUBMISSIONS

The submissions of the parties are summarised below.

67 It was pointed out on behalf of the Applicant that the factual allegations were not contested and were as set out in document titled "Implementation of Final Decision" -

56. In summary, I am of the firm view that Mr McCaskill's actions, conduct and behaviour were unwelcome and unsolicited, were of an in appropriate sexual nature and had the potential to cause the female officers subjected to it, to experience distress, harassment, humiliation, intimidation and offence.

What was required to be decided was whether the punishment fits the crime or whether the dismissal was harsh, unjust and/or unreasonable.

68 Mr Latham pointed to the following paragraph in that document as being the gravaman of the decision to terminate:

57. The effect of Mr McCaskill's actions, conduct and behaviour seriously undermines his ability to undertake all or any of the range of duties and responsibilities of his position as Project Officer, Courts and Tribunal Service, and as a public servant. Mr McCaskill's continued employment also has the potential to undermine the integrity and reputation of Courts and Tribunal Services and the Department.

69 Mr Latham submitted that the statement was grossly overstated. It was noted that Ms Atkinson, during cross-examination, stated that the then Acting Director General had not had regard, as far as she was aware, to the period of 12 months after the dismissal and before his dismissal during which he had continued to perform his regular duties without incident; she was also unable to assert whether the Applicant had undermined the integrity and reputation of the Department in that time; and confirmed that there were procedures already in place for dealing with conflict of interest should such issues arise. Mr Latham contended that the punishment did not fit the crime and relied on the legal test in Alexander v Commissioner of Police [2009] NSWIRComm 3 as authority for the proposition that the Commission intervene, because of mitigating circumstances and past good conduct, to determine that the termination was too harsh a consequence.

70 Mr Latham pointed out that the dismissal had been effected without notice. The test for summary dismissal requires the employer to prove serious and wilful misconduct (the Briginshaw test). Although the Applicant had conceded that his actions may be considered to be serious misconduct, that admission does not determine the statutory test which is whether the dismissal was harsh, unreasonable or unjust.

71 Mr Latham relied on, and asked the Commission to take into consideration the following:

(1) The Applicant's conduct was disgraceful but did not involve predatory sexual behaviour;

(2) The Applicant has 20 year service with the Respondent;

(3) Save for the incident in question, the Applicant has an otherwise good disciplinary record;

(4) The Applicant has been out of work since his dismissal on 17 December 2013;

(5) The punishment the Applicant had already served in the form of the stress suffered during the ongoing disciplinary investigation;

(6) The conditions that may be placed on Applicant's return to work if his claim is upheld.

(7) Credit for his admissions and remorse; and

(8) Credit for the utilitarian benefit in not seeking to challenge the findings against him and increase the embarrassment to the women involved.

72 Mr Latham also relied on the inconsistent treatment meted out by the Respondent to other employees in similar positions. It was submitted that the deliberation process was inconsistent in that Mr Cooke, a Manager, was demoted but not dismissed, despite having repeatedly denied any allegations of sexual harassment and despite the fact that his alleged conduct had been worse than the Applicant's, as admitted by Ms Atkinson in cross-examination.

73 Mr Latham pointed out that the Applicant admitted that his behaviour was inappropriate and unacceptable. He also pointed out that Mr Cooke's actions were similarly inappropriate and unacceptable yet he was not dismissed.

74 It was submitted that it was unjust and unreasonable that the Applicant should incur a harsher punishment when Mr Cooke, a Manager, incurred only a demotion for more seriously reprehensible behaviour than the Applicant. In that regard, the Applicant cited Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 as authority for the proposition that unfairness may flow from the fact that one employee was treated less favourably than other employees who had engaged in the same conduct. It was noted that Ms G complained that although she was upset by the Applicant's actions, her major issue lay with Mr Cooke.

75 Mr Latham pointed out that a comparison of the treatment meted out in relation to both the Applicant and Mr Cooke would be of assistance to the Commission in the determination of this matter. The Applicant relied on the Full Bench decision in Johnston v Commissioner of Police [2007] NSWIRComm 293 as authority for that proposition.

76 It was conceded that, although the Applicant's recollection was hazy due to his intoxication, he admitted the allegations as opposed to Mr Cooke who comprehensively denied the allegations. Mr Latham argued that the Applicant could have challenged that the behaviour was work related or that the allegations were not proven to a Bringinshaw standard and could have insisted on the Respondent's witnesses being subjected to cross-examination on their statements.

77 Mr Latham submitted that the Applicant was dismissed notwithstanding his remorse and early admission of fault very early in the disciplinary investigations which would indicate that the decision was harsh and unjust. His remorse should be taken into consideration in mitigating the severity of the punishment

78 The Applicant readily accepted that the recollection of the complainants Ms G and Mr Stephen Corkhill were more likely to be correct than his recollection of events.

79 Mr Latham submitted that it can be inferred from the record of interview of both Ms G and Stephen Corkhill that Mr Cooke's actions were more deplorable than the Applicant's bearing in mind that a higher standard was required of the latter given his position as Ms G's manager.

80 The Applicant denied that his actions constituted sexual harassment as he thought he had consent. He relied on past instances with Ms I which indicated to him that he had consent. Mr Latham submitted that, nevertheless, despite thinking he had consent, he was not seeking to apply a "consent" defence. It was acknowledged that it was irrelevant whether there was consent or not in those circumstances.

81 It was not suggested that there was no breach of the Anti-Discrimination Act.

82 Mr Latham submitted that the recommendation made by the Investigator had not been taken into account - that the Director General have regard to the Applicant's earlier and repeated admissions, his expressions of remorse and willingness to apologise and his stated self remediation in relation to excessive alcohol consumption and behaviour toward women in a social setting.

83 Mr Latham pointed out that the only bar to the primary remedy of reinstatement is where it is held to be impracticable (NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123). He submitted that it would not be impracticable to reinstate the Applicant to his former position for the following reasons:

(a) there was no evidence before the Commission that reinstatement would be impracticable. However, there was substantial evidence to the contrary;

(b) He had worked in the same role for 12 months after the incident;

(c) Two of his supervisors (Assistant Directors Court Services) have endorsed him; and

(d) There would be little interaction with the women concerned.

84 Finally, Mr Latham pointed out that the Applicant accepted that the Commission could make his reinstatement subject to appropriate conditions such as:

(i) Re-engagement at the base increment of a clerk 7/8;

(ii) Training to be received in EEO/sex harassment;

(iii) Warning letter to be placed on his personnel file;

(iv) Written apologies to be provided to Ms G, Ms I, Ms K, Ms B and Ms DB;

(v) No back pay be made for the period from his dismissal to the date of his reinstatement; and

(vi) Continuity of Service to be maintained.

85 Mr Easton compared the function to a Christmas party train wreck and thought that it was extraordinary that the Applicant, someone with senior HR responsibilities, did not see it coming considering he drank 14 - 15 standard drinks in 2.5 hours on an empty stomach. What was more surprising was the fact that for two weeks after, the Applicant did not seem to notice the trail of wreckage behind him and his subsequent conduct seemed to imply that he still did not appreciate the full import of his conduct. The Applicant admitted that the amount of alcohol that he consumed inhibited his capacity to discern between appropriate and inappropriate behaviour.

86 Mr Easton submitted that the Applicant's remorse and regret were directed at two things - firstly, the fact that he had upset Ms G and, secondly, the fact that a complaint had been made about his conduct being so serious that it had to be investigated.

87 Mr Easton described the Applicant's on-going denial and putting the women to the test about consent as disgraceful and questioned how it can be said that he acted with fairness, dignity and respect when he steadfastly put as a positive assertion that he had their consent after having access to the transcript of the women's interviews in which they emphatically stated that they had not given consent.

88 Mr Easton likened the Applicant's excuse that he had consent as an almost "she was asking for it" defence and insisted that the Applicant's expressions of regret were diminished by his reiteration of the so-called consent. Significant doubt was caused about his credibility and significant doubt was cast about his understanding of what he did as it took until, 18 February 2014, during cross-examination, for the Applicant to admit to concede that he could not say, with any certainty, that he had obtained consent.

89 It was pointed out that the Applicant had been dumbfounded when, during cross-examination, the possibility was put to him that he would be compromised in performing his functions in Human Resources. Mr Easton posed the question as to how the Applicant could be reinstated when he could not see that his actions had offended all the policies and the Code of Conduct the employer had in place.

90 Mr Easton submitted that it reflected poorly on the Applicant to suggest that it was Mr Cooke who Ms G had a problem with. It meant that he still did not get it and it would set back the authorities on sexual harassment 40 years if the Commission were to accept that "no harm, no foul" proposition.

91 Mr Easton noted that the same observations can be made of the Dignity and Respect Policy and the Code of Conduct of Ethics as were made by the Full Bench of the Commission in NSW Attorney General's Department v Miller [2007] NSWIRComm 33 in relation to the Department's Harassment Prevention Policy, the Code of Conduct and Ethics and the Prevention of Sexual Harassment in the Workplace Policy. The Applicant had confirmed, in cross-examination, that he had an intimate knowledge and connection with those policies.

92 Although Mr Easton conceded that some matters contained in the Code of Conduct relate to information that may be handled relating to members of the public, he submitted that these principles readily translate to the employment context that the Applicant was put in.

93 Mr Easton submitted that the Applicant's conduct outside of the workplace caused serious damage to the relationship with his employer in that it damaged the employer's interests or was incompatible with the employee's duty as an employee: B Rose v Telstra Corporation Limited (Print Q9292, 4 December 1998). In the Applicant's case, he conceded, during cross-examination, that he did not need to be warned prior to that Christmas party that his conduct at that party would be subject to the Respondent's policies.

94 The Respondent concluded that the Applicant's evidence was less than satisfactory for the following reasons:

1. He said he was appalled, and continued to be appalled, by his behaviour yet he did not have any regrets up until the time that the complaint was raised with him. There can be two possible explanations for that - either that the Applicant was not in a position to be appalled because he could not remember the events of that night until he was informed of the complaint or that he remembered but was not appalled by his conduct. The Respondent contended it preferred the second possibility given his past conduct with Ms I and believing that it was okay; the Applicant believed his own recollection of events until late into his cross-examination; and the Applicant still contended that he had asked for consent despite reading the transcript of all interviews held with the women concerned.

2. The fact that the Applicant did not seem to understand the compromising position he had put himself in considering his role in Human Resources. He knew the procedure, knew it was a work function and should have complied with the work policies.

3. His conduct, on that evening, would not get him over the barrier, even if he had the consent of the women to touch their breasts, as it was a breach of the Respondent's Code of Conduct and policies.

4. Legislation is not gender-centric and in that regard relied on Section 22A and Section 22AB of the Anti-Discrimination Act.

5. The Respondent rejected all references to gender and sexual orientation as irrelevant to the issue of breach of the Anti-Discrimination Act.

6. The Applicant had committed a fundamental breach of policy by revealing confidential information to a job applicant.

95 Finally, the Respondent concluded that the Commission should rightly uphold the decision made by Employer

CONSIDERATION

96 The factual allegations were not contested. Neither was it contested that a penalty was required to be imposed on the Applicant for his conduct on that fateful evening.

The issue between the parties and what the Commission is required to decide is whether to intervene, because of mitigating circumstances, past good conduct and the penalty applied to another officer in similar circumstances, to determine that the termination was harsh, unreasonable or unjust and impose a less severe penalty.

On that basis, I am required also to consider the actions of Mr Cooke in arriving at my determination.

97 It is relevant to note the provisions of Section 13 of Appendix 9A: Misconduct, of the Guidelines as contained in the Personnel Handbook (Version 13.3):

9A-13 Officer engaged in misconduct - disciplinary action being considered

If the Department Head is of the opinion that an officer has engaged in misconduct and disciplinary action is being considered, the Department Head shall, prior to notifying the officer of this fact, give consideration as to what is the most severe in the range of penalties that might conceivably apply to such Misconduct ("the severest penalty").

In deciding what the severest penalty is, the Department Head shall have regard to the objects of Part 2.7 of the Act, that is:

To maintain appropriate standards of conduct and work related performance in the Public Service

To protect and enhance the integrity and reputation of the Public Service and

Ensure the public interest is protected (s 41).

It is essential that the Department Head's consideration of the severest penalty must not involve any pre judgment as to what penalty, if any, is ultimately to be applied to the officer. Consideration of the actual penalty, if any, to be applied is not to occur until the steps outlined below in Clause 13.1 have been carried out.

The Department Head shall consider the following:

The facts of the case

The impact of the conduct on the objectives of Part 2.7 of the Act

The degree of relevance of the conduct matter to the officer's position and duties

Skill, experience, and position of the officer

The nature and seriousness of the matter, including the effect and circumstance of the incident

Mitigating or extenuating circumstances if available at this stage

The employment history and general conduct history of the officer

Whether the conduct or substantially similar conduct has previously been the subject of counselling or previous remedial or disciplinary action

Whether policy and guidelines applicable to the conduct were in place, were known, were being followed or required to be followed

The effect of the proposed action on the employee.

It is also noted that Clause 14 requires that:

All stages including the final decision stage must be made in a timely and expeditious fashion....

Facts of the Case

98 The Klaassen formal investigation established that the Applicant had, on 7 December 2012, without consent, touched the breast of five officers of the Department.

99 The Applicant insisted that he had obtained consent of the women. He maintained that stand until his cross-examination in these proceedings when he agreed that his written statement was wrong and he did not have their consent. In other words, the facts of the case against the Applicant were proven.

100 The Applicant had also disclosed confidential details to another employee in that he had divulged that she had not been successful for a position she had applied for.

101 Mr Cooke had touched the breasts of two women, one of whom was under his direct supervision as her Manager. He had completely denied the allegations but, on Ms Atkinson's evidence, the women's versions were upheld and he had been demoted in rank.

The impact of the conduct on the objectives of Part 2.7 of the Act

102 It is noted that, unfortunately, four out of the five incidents involving the touching of breasts occurred on the footpath outside of the hotel where members of the public were walking past and patrons of the hotel, not part of the Downing Centre Christmas function, were drinking at the same hotel.

103 I accept the submission of Mr Latham that the Applicant's conduct did not involve predatory sexual behaviour. Nevertheless, the conduct of both Mr McCaskill and Mr Cooke was deplorable, unsolicited and had the potential to undermine the integrity and reputation of the Department.

104 The fact that Mr Cooke touched the breasts of two women and the Applicant touched the breasts of five women is neither here nor there - it was one woman too many! Being gay does not excuse such unwarranted behaviour. In this day and age it goes without saying that one does not invade the space of another person or touch another person without permission. In any event, even if permission was given, it should not occur in the workplace or any function associated with the workplace.

The degree of relevance of the conduct matter to the officer's position and duties

Skill, experience, and position of the officer

105 The Applicant's position was identified as the primary source of liaison between Court Services and the Department's Corporate Human Resource branch. His Position Description relevantly identifies the following responsibilities under the following headings:

Outcomes

....

....

....

The development and maintenance of good working relationships with Court Services staff, Business Centre Managers and Corporate Services.

Provision of advice and assistance to management on administrative and operational issues.

Key Accountabilities

....

Consult with the Director and other managers in the development and maintenance of administrative policies, practices, systems and standards for the efficient operation and administration of Court Services.

....

106 In her written evidence, Ms Atkinson pointed out that the Applicant was a member of the Department's Right to Dignity at Work Steering Committee and the Equity and Diversity Alliance Group. The Applicant also alluded to the work he did as a Mentor.

107 The Applicant's conduct was certainly inappropriate, particularly given that the primary purpose of his role is to act as the liaison between Court Services and the Human Resources Branch of the Attorney General's Departments and to -

... provide the Assistant Director (Business Performance and Support) and the Senior Registrars with advice and services on HR issues

108 Mr Cooke was in a higher grade to the Applicant and, unlike the Applicant, supervised staff who came within his department and therefore also undertook human resources functions. One of the complainants was a woman who came under his direct supervision.

The nature and seriousness of the matter, including the effect and circumstance of the incident

109 None of the women had given consent to the Applicant to touch their breasts. Apart from Ms G, none of the women took any offence to the actions of the Applicant and had laughed it off. For her part, Ms G in her statement to the Commission stated that she had been embarrassed by his conduct towards her that evening.

110 Ms I was interviewed a number of times about the incident. She confirmed that the Applicant did not have consent to touch her breast, nevertheless, she was not touched in a harmful way and did not take any offence in relation to the incident. She felt that they were all friends, all were intoxicated and did not want any further action taken in relation to the matter. Mrs Olseon formed the impression that Ms I was not too intimidated or frightened to speak up had she taken offence.

It is noted from the Investigation Report that she confirmed that she socialised with the Applicant outside of work, she believed that the actions of the Applicant were not premeditated, she could tell that he had been drinking for a while and seemed quite uninhibited. While she was taken by surprise, she said she was "not disgusted, offended or appalled".

111 Ms Olseon stated in her report that Ms G. indicated that she did not want any formal action taken by the Respondent against the Applicant.

112 During the formal investigation interview, Ms G described her immediate reaction variously as "stunned", "shocked", "taken aback" that someone acting in the role of Human Resources Specialist would do such a thing. As for the impact the incident has had on her life, she stated:

A huge impact, it's changed me. I'm different. Initially there was interruptions to my sleep pattern which resulted in an anxiety attack the Saturday after I reported it to Pam. At the time I was medicated for it. I've ceased taking that medication. Other impacts, increased intake of alcohol, stress and that kind.

113 Sheriff Officer K declined to participate in an interview for the preliminary investigation and denied any knowledge of inappropriate conduct by anyone on that evening. In other words, she denied that the incident occurred. Nevertheless, the Applicant at that point in time admitted to having touched her on the breast but stated that he did so with her consent. There is a possibility that the Applicant admitted the deed because he had been too drunk to recall whether he did or not.

Ms K participated in the formal investigation and, on 7 June 2013, stated that she "vaguely" remembered the Applicant brushing her breast briefly. She said that she had not taken offence as she recalled a reference being made about him being gay.

114 Sheriff Officer DB, at the formal interview on 29 May 2013, said that she had been taken by surprise when he touched her breasts because there was no previous relationship with him. She had just "flicked it off, it was nothing. Or laughed about it and then words were said by Andrew and the other people around had a bit of a giggle and then he was gone. And I didn't take offence to it...". She had not given him permission to touch her, "He approached me from behind, I didn't even see him. I don't know if he saw me, my face." She said that she did not feel that a complaint was warranted.

115 Ms B confirmed that the Applicant told her, in the bar area of the Hotel, soon after she arrived at the party at 6 pm, that she had not been successful in her application for a position she had applied for with a Tribunal. She confirmed that she had been both upset and surprised at being provided with that information. The Applicant admitted that he had made the disclosure to her.

Ms B neither lodged a complaint nor volunteered any information that the Applicant had touched her breasts. It was Ms I who had "reluctantly disclosed" to the Investigator that she saw something to that effect.

116 Ms Olseon observed that Ms G was clearly distraught over the incident at the time she interviewed her. During that interview she indicated that she felt humiliated by the reaction of Craig Cooke, her line Manager, when she advised him of the incident with the Applicant earlier that evening.

117 At a further interview held with Ms Olseon on 17 December 2012, Ms G reported that she had experienced a panic attack the previous Saturday and attended on her doctor over her anxiety. She repeated that, whilst she was still upset about the Applicant's conduct, her major issue lay with her Manager.

Mitigating or Extenuating Circumstances

118 The evidence indicated that the Applicant had consumed 14 -15 standard drinks on an empty stomach within a 2.5 period. He admitted that it had inhibited his capacity to discern between appropriate and inappropriate conduct.

119 Mr Corkhill provided the Investigator with a description of the physical state the Applicant was in when he arrived at the function:

... manner of speech, his eyes were glassy, he looked slightly unsteady even on his feet. He, he looked well on the way shall we say when he arrived at the party.

120 The Applicant, during the investigation process, admitted that he was a binge drinker - he would not drink for weeks but when he did he would overdo it. He had taken steps to remedy that habit.

121 It was not disputed that Mr McCaskill did not normally socialise with people from work. The Applicant provided in his written statement details as to the reason why he was upset and depressed on 7 December 2012. No issue was taken with his explanation and no contrary evidence was provided.

The Employment and General Conduct Histories/Previous remedial or disciplinary action

122 It was common ground between the parties that the Applicant's personnel file contained no information that would indicate previous incidents or concerns in regards to his performance, conduct or behaviour.

123 I have noted the written comments made by three referees to the then Acting Director General, Mr Brendan Thomas, in support of the Applicant:

Firstly, Tracey Hall, Sheriff of New South Wales, on 19 September 2013, stated that she has known the Applicant for approximately seven years having worked closely with him in her role as Assistant Director, Court Services for recruitment and HR related issues and, more recently, on a disability recruitment program which the Applicant has been driving with the Sheriff's office. She made it clear that she found his behaviour on 7 December 2012 unacceptable and in no way condoned that type of behaviour. Ms Hall relevantly stated:

...In all of my dealings with Mr McCaskill he has operated in a professional and courteous manner and deals proficiently and expediently with the work coming out of the Sheriff's office.

Mr McCaskill expressed deep remorse for his actions and was embarrassed to have to raise his behaviour with me. To my knowledge Mr McCaskill does not usually socialise with work colleagues and it appears on this occasion that the festive season and an excessive amount of alcohol have contributed to the circumstances. These factors are by no means mitigation of Mr McCaskill's culpability for his actions although do go to some degree as an explanation of what I would say is out of character for him. I am not aware of any other issues of this nature involving Mr McCaskill...

Secondly, two Assistant Directors Court Services have endorsed him - Ms Cathy Szczgielski and Ms Karen Wallace, on 11 September 2013, wrote to Mr Thomas in their capacity as long term supervisors of the Applicant. Both had supervised the Applicant for the last 7 years of his employment. In addition, Ms Wallace had worked with the Applicant when she held the position of Director Human Resources between June 1996 - January 2000.

It is pertinent to note the comments made about him which demonstrate the high regard in which he is held and the contribution that he has made to the Department:

...Mr McCaskill has a demanding role in Court Services. He deals with staff, senior managers and judicial officers. He provides advice and support across Local Courts, District Court, Sheriffs, the Dust Diseases Tribunal and the Guardianship Tribunal. He is involved in recruitment, workers compensation, return to work plans, performance management, referrals for medical assessment and other human resources functions.

Mr McCaskill maintains a high level of professionalism. He is knowledgeable, diligent, hard working and courteous. His role involves him being in direct contact with staff who are facing a range of difficulties - mental health problems, redundancy, termination of temporary contracts and other stressful situations. Mr McCaskill has a compassionate and calm manner and because of this managers seek his assistance in dealing with difficult issues. He is often asked to participate in performance management interviews and recruitment processes to provide a balanced approach and the voice of reason....

In relation to the charges, Mr McCaskill recognises only too well that his behaviour was wrong. At all stages he has been open and honest about his behaviour and has not attempted to deny or avoid it. His only excuse is that he had consumed an excessive amount of alcohol and while this in no way mitigates his culpability it goes some way to explain what to us appears to have been very much out of character. He has repeatedly stressed to us how sorry he is that this occurred and how he wished he had just gone home that night.

Policy/Guidelines Applicable to the Conduct...

124 I am satisfied that there were policies and guidelines in place, as identified above, that were directly applicable to the conduct. Those policies were known to the Applicant and, up until the incident on 7 December 2012, and thereafter were being followed by the Applicant. There was no issue taken by either of the parties in that regard.

125 An email had been circulated to all employees inviting them to the Christmas Party. The invitation contained a reference to the fact that the Respondent's Code of Conduct was applicable to staff attending the party. The Applicant denied receiving a copy of that email or seeing that email prior to the formal investigation. It is noted that Ms B had not seen that email either. Nevertheless, as noted above, the Applicant conceded during cross-examination that he did not need to be warned prior to his attendance at that function that his conduct at the Christmas Party would be subject to the Respondent's policies.

The Effect of the proposed action on the Employee

126 In relation to the importance of keeping his job, the Applicant provided compelling personal and financial reasons as to why he would be willing to comply with any disciplinary measure that is thrown at him but not dismissal. I accept that his reasons are genuine.

Disciplinary Actions Available

127 The Applicant admitted at the first opportunity that his behaviour had been inappropriate albeit he kept insisting that he had consent. It was pointed out to the Commission that Mr Cooke had consistently denied the allegations against him despite the evidence against him which was accepted by the Respondent. Mr McCaskill was dismissed. Mr Cooke was demoted.

128 Mr McCaskill expressed deep remorse and contrition and was appalled at his own behaviour. I do not accept the submission that he put up a "she was asking for it" defence. I obtained the distinct impression from his evidence that he believed that, knowing the type of person he is, he would not have touched the women, despite his drunken state, without their approval. I have already expressed the view that the should not have touched anyone, with or without their consent and irrespective of their sexual orientation.

Mr Cooke did not express any remorse or contrition because he denied the allegations made against him.

129 The Applicant touched the breasts of five women. Mr Cooke touched the breasts of two women. As I indicated earlier, quantity is not the issue - it is one woman too many. If a true comparison is to be made then it may be that the fairest way is to compare both men against the number of complainants.

There was only one complainant in relation to both Officers - Ms G. Ms G indicated that she did not want any action taken against the Applicant. She was distraught because she had been felt up by her Manager, Mr Cooke.

Both men had human resources responsibilities - Mr McCaskill was involved in a human resources function across Court Services but did not supervise any staff. Mr Cooke was involved in day to day human resources management of the staff he supervised.

130 Mr McCaskill had divulged confidential information to Ms B about the outcome of her job application. This was the first time in the history of his employment with the Respondent that the Applicant has breached confidence. Alcohol loosens tongues and loose tongues sink ships.

131 I note the glowing endorsements made by the three references provided by the Applicant. I note that, rightly so, none had condoned his behaviour but were able to divorce that aspect from the objective assessment they provided of his exemplary service to the Department.

132 I find that both men breached the Respondent's Code of Conduct and Ethics and the Dignity and Respect Policy. It goes without saying that both breached the relevant provisions of the Anti-Discrimination Act 1977 (NSW).

133 Nevertheless, I find, having made the above comparisons, that the penalty of dismissal meted out to the Applicant was harsh when assessed against the penalty meted out to Mr Cooke. I have no doubt that the Applicant has been humiliated and embarrassed by his actions at that function and will live with the consequences for a long time to come.

134 I find that reinstatement of the Applicant is not impracticable given that -

Firstly, the Applicant continued to perform all the tasks associated with his role during the 12 month period between the incident and the date of termination, including the performance of recruitment functions, convening of panels, representing the Director of Court Services on the Right to Dignity at Work Steering Committee and the Equity and Diversity Alliance Group; and

Secondly, the Applicant has, since the incident, maintained a cordial relationship with Ms I, Ms K, and Ms DB. He has very limited contact with Ms B as she is working at a suburban court. Finally, his former position does not allow for much contact with Ms G.

135 The following disciplinary actions were available to the Director-General to take if he considered that the Applicant had engaged in misconduct:

caution;

reprimand;

fine;

reduction in salary;

demotion to a lower graded position;

to be allowed to resign;

direction to resign;

dismissal,...

or

Implement remedial action, in which case the following options were available:

Counselling

Training and Development

Monitoring the officer's conduct and performance;

Implementing a performance improvement plan;

Issuing a warning to the officer that certain conduct is unacceptable or that the officer's performance is not satisfactory;

Transferring the officer to another position in the public service that does not involve a reduction of salary or demotion to a lower position;

Any other action of a similar nature.

or

Take no further action.

136 I believe that a combination of the above is warranted in the circumstances, some of which have been proposed by the Applicant himself.

ORDERS

137 The Applicant, Mr Andrew McCaskill, is to be reinstated by the Respondent in his previous position on the same terms and conditions on which he was previously employed with full continuity of service save for the following:

137.1 His rate of pay shall be on the base increment of a clerk 7/8;

137.2 His salary shall commence from the date of reinstatement and no back payment shall be made for the period from his dismissal to the date of reinstatement;

and subject to the following:

137.3 A final warning letter is to be placed on his personnel file. The warning would include a provision to the effect that any future breach of that Code or policies may constitute a proper basis for summary dismissal.;

137.4 A written apology is to be forwarded by the Applicant to the five women affected by his conduct;

137.5 His participation in EEO/Sexual Harassment training as soon as practicable upon his resumption of work; and

137.6 A written undertaking be provided to the Respondent regarding compliance with its Code of Conduct and Ethics and Dignity and Respect Policy.

138 The Order shall take effect on and from Wednesday, 30 April, 2014.

I Tabbaa AM

COMMISSIONER

Amendments

22 April 2014 - "Mr Corkhill" amended to read "Mr McCaskill".
Amended paragraphs: 103

Decision last updated: 22 April 2014