FWA 8544
Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment
Ms Tamicka Louise Dover-Ray
Real Insurance Pty Ltd
SYDNEY, 5 NOVEMBER 2010
Termination of employment - arbitration
 On 15 June 2009 Ms Tamicka Dover-Ray filed an application for relief on the grounds that the termination of her employment with Real Insurance Pty Ltd (Real) was harsh unjust or unreasonable.
 The matter was not settled by conciliation on 3 August 2009. 1
 Real lodged a jurisdictional objection on the ground that Ms Dover-Ray’s employment was not terminated at the initiative of the employer. In a decision dated 30 October 2009 Commissioner Raffaelli upheld the objection and dismissed the application. 2 In a decision of 9 April 2010 a Full Bench upheld an appeal against the Commissioner’s decision. It found that a letter to Ms Dover-Ray from Real dated 1 May 2009 (calling on her to show cause why she should not be summarily dismissed)(the ‘show cause’ letter) had repudiated her contract of employment and Ms Dover-Ray had accepted the repudiation by the lodgement of her application with FWA.3
 The basis of the show cause letter was that Real considered Ms Dover-Ray had wilfully and deliberately conducted herself in a way that it considered to be inconsistent with the continuation of her employment by:
 Evidence was given by:
On behalf of the applicant
On behalf of the respondent
 In May 2008 Ms Dover-Ray commenced employment with Real and worked as a sales agent in a call centre with a male manager. In December 2008 she was promoted to the claims department.
 Early in 2009 a male colleague (who Ms Dover-Ray had sat beside in the call centre) made a complaint about harassment and intimidation by the call centre manager (the manager). 4 Ms Dover-Ray was asked by colleagues to come forward and provide supporting information. Also, from around March 2009 Ms Dover-Ray had informal or off the record discussions with management (including Mr Grobler) and HR staff about the manager’s behaviour towards her when she had worked in the call centre. From those discussions Mr Grobler understood that whilst Ms Dover-Ray was concerned that the behaviour might potentially compromise females in the call centre, she was not concerned about herself as she could ‘stand her own’.5 Ms Dover-Ray understood that no action would be taken unless she lodged a formal complaint against the manager.
 On 15 April 2009, Ms Dover-Ray provided a statement which made allegations that the manager had sexually harassed her when she had worked in the call centre.
 After lodging the formal complaint, Ms Dover-Ray went off on sick leave and did not return to Real, other than for the 2 meetings referred to below. Her absence on sick leave became the subject of a claim for workers compensation for a stress-related condition (which, after investigation, was denied).
 Ms Dover-Ray’s allegations were investigated jointly by a team consisting of Mr Grobler, Real’s general counsel (a woman) and an experienced director of Real’s holding company over a period of 2 weeks. Ms Dover-Ray had unsuccessfully requested that she not be involved with the holding company’s director because of what she had been told was the strength of the working association between the director and the manager. This has lead to Ms Dover-Ray asserting she was denied procedural fairness in the investigation as a consequence of Real’s involvement of the director. 6
 During the investigation a number of staff, including all of the persons who Ms Dover-Ray suggested could support her allegations, were interviewed. Also, the emails of several staff were searched for evidence of sexual harassment. The search found emails of several staff, including Ms Dover-Ray, which attached pornographic photographs. Also discovered, was an email from Ms Dover-Ray to the other complainant which appeared to indicate that she had some form of personal relationship with him. 7 Further discovered, was an email from Ms Dover-Ray to the manager which appeared to express appreciation for the constant flirting.
 Ms Dover-Ray was called to meetings on 20 and 21 April 2009. She attended the first meeting with her support person and the second meeting also with her lawyer.
 What was said at the meetings is in dispute. However is seems sufficient to find that at the first meeting Ms Dover-Ray was queried about her email to the other complainant and explained that they were work colleagues, although she did have a dinner with him and his wife. Also, she was given feedback that other staff did not support her allegations and it had been said that she had instigated some of the flirting.
 It seems that at the second meeting Real did not seek to separate its investigations of Ms Dover-Ray’s sexual harassment allegations and her pornographic emails, although there was a connection because she had sent one of the emails to the manager.
 Three issues of significance were discussed at the second meeting. Firstly, Ms Dover-Ray was advised that the manager had admitted to sexual banter between him and her, but considered it had been consensual. Also, a unidentified staff member had stated that Ms Dover-Ray used to initiate physical contact with the manager by rubbing herself up against him.
 Secondly, Mr Grobler questioned Ms Dover-Ray about the email that she had sent to the former manager which, to him, appeared to contradict the substance of her complaint. Her email of 19 December 2008 was in response to his broadcast email congratulating her on her promotion and stated:
“I want to thank you firstly, for the opportunity to work here. You have been a constant challenge to me and I have loved every minute of it. From the constant flirting to the first time I got to see the Human in you at conference. You have made me feel valuable and made life fun whilst working here. I truly wish you all the success and luck in the world. I know that you are the type of person that will achieve all of this.
I still expect to be annoyed by you so don’t break the habit.
Lots of love ...
 Mr Grobler did not accept Ms Dover-Ray’s explanation, which was that ‘the purpose of the email was to acknowledge I was no longer under his reach and to put to bed the business relationship. I wanted to be as nice as possible without stirring the pot too much.’ 9
 Thirdly, Ms Dover-Ray was questioned about emails she had received and forwarded on. The emails were a bad attempt at humour and attached an explicit, close up photograph of a vagina with what could be described as abnormally elongated external genitalia (labia minora). Ms Dover-Ray stated that she had forwarded the email to the manager (at his request), a team leader (to whom she was not responsible)(‘so she would know what I was receiving’ 10) and a female colleague (who had asked why she looked so shocked).
 It is not in dispute that Ms Dover-Ray did not reveal that she had also sent the pornographic email to two members of her family, a female person who did not work for Real and a further female work colleague. Her evidence was that she wasn’t asked who she had sent it to and only gave responses to the questions she was asked. 11 Mr Grobler’s evidence was that she was quizzed about her distribution of pornographic email.12 During the discussion, Ms Dover-Ray indicated that other Real employees were involved in the circulation of the email.
 On Friday 24 April 2009, Ms Dover-Ray learned of the finding and outcome of the investigation, namely that senior management had decided that her allegations were not made out. This outcome was confirmed in a letter dated 1 May 2010 from Mr Grobler to Ms Dover-Ray’s lawyer which, after referring to the investigation process, included:
“... Senior Management has decided that your client’s Allegations were not made out. This is because, on the balance of probability, the totality of the evidence did not show that (name of manager) conduct towards your client was unwelcome, unwanted or non-invitational.
The Company is committed to providing a safe place to work. We recognise the need to provide a work environment which is free from discrimination and harassment and that is conducive to employee development and positive workplace relations. To this end, we will be implementing ‘refresher training’ around equal employment opportunity and diversity (amongst other things) within the Company.” 13
 It seems that on 24 April 2009, Ms Dover-Ray learned of the outcome indirectly. This was because the advice was conveyed by Real’s general counsel Ms Dover-Ray’s lawyer during a telephone conversation. During that conversation the request was made that Ms Dover-Ray return to work on Monday 27 October 2010 (the claims department and the call centre being in different buildings). 14
 That day Ms Dover-Ray wrote a blog on a social-networking (MySpace) webpage. The following wording was on a page alongside a photograph of herself and her name:
“Friday, April 24, 2009
I am sitting here ... trying to figure out where I went wrong. I was raised with high morals. I believe in integrity, loyalty and being honest. I believe that you should always defend the truth, and find the courage to stand up for what is right. There is a place that shall remain unnamed that I thought was based on the same principles that I have engrained myself with.
When you know that something is unjust, you have two choices. One is to let it go and pretend you saw nothing and that nothing has ever happened. The other is to speak loud, and yell from the top of your lungs that this is not fair, and it is unjust, that this is CORRUPTED.
I have just been thru an investigation that in the end, advanced corruption. The investigation sought to ensure that evidence was tampered with, was controlled and was biased. It was set to make the victim the perpetrator and that any accusation against the real perpetrator, that he was exonerated completely.
This man was sexually advancing himself on women, rubbing up against them, asking to see their breasts, suggesting he could do more pushups if they were underneath him, and suggesting that they have extra marital affairs with him. Imagine sitting at a desk, doing your job and then being told that everytime he comes to your desk he can’t stop staring at your tits. Or random comments made in front of dozens of people to share your tits and how much he would like a look at them. Yes all this done in front of people. People who were bought and manipulated either out of fear or greed to not say a word. Especially other women that complained about their harassment.
And when there were a couple of people that were courageous enough to come forward their statements were dismissed because they were deemed as friends.
This place covers peoples lives, offering to protect them when catastrophe happens and yet fails to protect the people that work for them. Chasing dollars over safety. Witch hunting. Nothing but witch hunters.
So where is the integrity of the workplace? Where is the concern of the Senior Management that is meant to be protecting the workers from harassment, intimidation, bullying and sexual advances that were UNWANTED, UNINVITED AND UNSOLICITED? I will tell you. That integrity was in a bunch of words that they called their values. They were absolute lies, absolute mockeries of what they stood for.
At the end of the investigation, I was told that it was all unsubstantiated. That he has witnesses and people within the workplace that said I instigated it all. I wanted it. I liked it. That I had rubbed myself up against him telling other people to watch as I did it and how much I loved it. Not one signed statement on his behalf. Just people who said they didn’t want to sign anything. Vs two signed statements on my behalf. One of them from the employee that sat next to me every day for 5 months. He was conveniently sacked the day they were meant to deliver their results and because he was sacked his statement was not credible. The other was from a co-worker that I had told I didn’t like the advances that this man was making on me, how I felt uncomfortable with them. This co-worker witnessed this man try to touch me, brush up against me, and heard the comments. But because she considered me a friend, they deemed her signed witness account and witness statements as uncredible.
This is corruption at its rawest. It is corruption at every level. Not once in their entire investigation did they stand down or suspend the Perpetrator so that it could be a fair and equitable investigation. Instead they sacked the other person that made a complaint of harassment and bullying against him, and told me to take as much time off and that it didn’t affect my holiday or sick pay. They turned around my statement, and instead hunted me, wanting to know my relationship with the person I brought into the meeting as my support person, to know if we were in a relationship. And wanting to know the relationship between my co-worker that sat next to me for 5 months because I had dinner with his wife, my partner and him. Because we would talk at work and have a yak. They tried to establish a line of executed corroboration between us. Simply because to get rid of us was more commercially viable than getting rid of six figured salary sexual perpetrator that might just sue them for unfair dismissal.
 An employee of Real brought the blog to the attention of Mr Grobler. Also the blog was accessed by Ms Lee after she entered the words ‘Tamicka’ and ‘corruption’ in the Google search engine.
 After the investigation had concluded Real uncovered another email from Ms Dover-Ray to a female family member which was headed ‘Mum’s of the year awards’ and attached several photographs. One such photograph was tendered as evidence and was of an unidentifiable young woman performing oral sex (with pixelations across the penis) whilst bottle feeding an unidentifiable infant.
 On 1 May 2009, Real sent the ‘show cause’ letter to Ms Dover-Ray’s lawyer. That letter is contained in paragraph  of the Full Bench Decision.
 The ‘show cause’ letter requested Ms Dover-Ray’s lawyer to advise her to remove the blog ‘and forever cease publishing it (and any other material that has the real potential to damage the reputation of the Company), in the public arena.’
 On 5 May 2009 Ms Dover-Ray emailed her response 15 in which she described herself as ‘appalled’ and stated that: ‘The charges against me are trivial and without substance.’ Further in respect of the four grounds why Real considered Ms Dover-Ray had wilfully and deliberately conducted herself in a way that it considered to be inconsistent with the continuation of her employment (refer to paragraph 4):
(a) she explained that the nature of her relationship with the colleague who had made the earlier complaint was work-related;
(b) she stated that her email dated 19 December 2008 (refer to paragraph 16) was written after she had been removed from the manager’s reach and:
“... It was a letter written in relief and I was attempting to ‘put to bed’ any further unwanted advances from him by closing the ‘business relationship’ at this point with this letter. The quote in question ... ‘from the constant flirting ...’ is the whole point.
Roger (Grobler) (sic) has construed this as a summary of my total feelings for (name). Rather, it was to explain, in as nice and as gentle possible way that this was a low point in the relationship and it was not until I saw his ‘human side’ at conference did I see a person worthy of writing this email at all ... The benefit to me was to protect myself and establish a suitable distance from him now.”
(c) in respect of her non-disclosure of her pornographic emails, her response stated:
“I had received them unsolicited and only sent them to (her former manager against whom her sexual harassment allegation were made) when he asked me to forward them and to (name) because she was a team leader and I wanted her to know what people were sending to my inbox.
I completely reject this charge as I am not in control of any email I receive and have explained by actions to Roger and (name of holding company’s director) at the meeting and this was accepted.”
(d) in relation to her publication of the blog, explained that Mr Grobler and another investigator had ‘asked and even pleaded with me’ on several occasions:
“... to find people to come forward who could substantiate the claims I had made.
An anonymous blog, was considered the gentlest and safest way to attempt to bring other aggrieved and aware colleagues forward who have otherwise been too scared about losing their jobs to come forward.
If you have construed this is any way I am deeply sorry for this, but I feel that the company is simply blaming the victim/s in order to get on with business again and attempt to bully me out of the company.”
(e) she concluded that she was ‘flabbergasted’ that she could be summarily dismissed for ‘blowing the whistle’ on what she considered to be abhorrent behaviour in the workplace. She would not accept Real’s decision.
 Also, in response to the ‘show cause’ letter, on 6 May 2009 Ms Dover-Ray’s lawyer wrote to Real and made submissions on her behalf, including that she had no reason to show cause as she had undertaken no behaviour that would permit Real to dismiss her.
 Ms Lee monitored Ms Dover-Ray’s blog (by googling it) to ascertain if it was modified or removed. I accept her evidence that up until 21 May 2009 the blog had not been modified or removed. 16
 The Full Bench decision (at paragraphs 7 to 15) referred to correspondence between the parties up until the time that Ms Dover-Ray accepted the repudiation of her employment. I accept those findings. This included an offer from Real dated 21 May 2009 that, notwithstanding its view that Ms Dover-Ray’s conduct warranted summary dismissal, her employment cease by mutual agreement of the parties.
 Real’s Notice of Representation dated 2 July 2009 (Form R28) in response to Ms Dover-Ray’s FWA application, stated that her employment had not been terminated by the employer and sought to rely on a letter dated 29 June 2009 which, in Mr Grobler’s absence, the Commercial Manager had forwarded to Ms Dover-Ray via her lawyer. The letter, which had been prepared on legal advice, 17 included:
“We are pleased to advise that although the Company maintains that it has valid grounds to terminate Ms Dover-Ray’s employment, it has decided not to do so. Indeed, the Company is genuinely hopeful that never again will there be grounds upon which it can validly terminate Ms Dover-Ray’s employment or take any other disciplinary action…
Ms Dover-Ray will be welcomed back to work (and should return to work), as soon as she is fit for work, subject to her compliance with the ‘return plan’ set out in Annexure 1 to this letter…” (emphasis in original)
 Ms Dover-Ray’s lawyer’s response dated 6 July 2009 stated that she had been left with no option than to obtain other employment. Therefore she was not in any position to consider Real’s proposals, including her return to work.
 Subsequent to the Commissioner’s decision, on 3 November 2009 Ms Dover-Ray’s lawyer wrote to Real advising that she had reconsidered her position and wished to return to work after she had recuperated from surgery.
 In reply, on 10 November 2010 Real advised Ms Dover-Ray’s lawyer that her request was rejected.
Sexual harassment allegation
 According to the Australian Human Rights Commission, 18 sexual harassment is an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances. Whether the behaviour is unwelcome is a subjective test: it looks at how the conduct in question was perceived and experienced by the recipient, rather than the intention behind it. Whether the behaviour was offensive, humiliating or intimidating is an objective test: it looks at whether a reasonable person would have anticipated that the behaviour would have this effect.
 An employee should not be required to exhaust informal attempts at resolution of sexual harassment allegations before formal action commences. Also, employees have the right to formalise their complaint or approach an external agency.
 Whilst in these proceedings Ms Dover-Ray’s lawyer stated he was ‘trying to prove a discrimination case’, 19 I decline to form an opinion on whether or not Ms Dover-Ray was the subject of sexual harassment. This is because I was not made privy to all of the relevant information and to make a finding on the material before me would have denied other employees procedural fairness.
 However, I acknowledge that Ms Dover-Ray is convinced that she was sexually harassed by the manager and does not consider that she initiated or welcomed sexual banter with the manager. This decision is made in that context.
 In summary, on behalf of Ms Dover-Ray it was submitted that her termination was harsh, unjust or unreasonable because:
(a) Real’s letter dated 29 June 2009 (after the date she accepted the repudiation) stated that it had not terminated her employment. Therefore the conduct that it relied on in its earlier correspondence to repudiate her contract of employment was invalid;
(b) Because her employment was terminated by repudiation of her contract of employment, she was not fully notified of the reason for her termination and not given the opportunity to fully respond;
(c) She was terminated without notice or payment in lieu of notice;
(d) She was denied procedural fairness because the panel which investigated her allegations included a person who she had requested not be involved;
(e) Arguably, Real’s threats of summary dismissal were in breach of the Anti-Discrimination Act 1977 (NSW) and the Sex Discrimination Act 1984 (C’wth).
 In summary, Real submitted that:
(a) Ms Dover-Ray was summarily dismissed for misconduct;
(b) The dismissal was not about the merits of the sexual harassment investigation. It primarily concerned her behaviour after the findings thereof were communicated to her;
(c) That misconduct primarily related to her ‘highly offensive’ blog which aimed to damage Real’s reputation, and her failure to remove it when directed to do so. Other Real employees and persons who knew where she worked would have known it was referring to Real;
(d) Her other misconduct that supported the termination was:
(i) Her sending pornographic emails;
(ii) Her failure to be less than honest with her employer:
o In responding to questions about the extent of such pornographic emails; and
o Whilst she lodged a complaint against the manager, her failure to disclose the email she had sent him ‘which indicated there was mutual flirting going on’ or to explain it to Real’s satisfaction; 20
(e) Real did not submit that Ms Dover-Ray had made a false allegation. The investigation team considered that it was worthy of investigation; 21
(f) As an alternative submission, there were grounds for her termination with 2 weeks notice.
 Subsection 643(1)(a) of the Workplace Relations Act 1996 (the Act) relevantly provides:
“(1) ... an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:
(a) on the ground that the termination was harsh, unjust or unreasonable; …”
 In Byrne v Australian Airlines Limited the High Court explained these grounds as follows:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 22
 FWA is required to have regard to a number of matters specified in s.652(3) of the Act. That subsection provides:
“(3) 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 employee’s capacity or conduct (including its effect on the safety and welfare of other employees); 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
(e) 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
(f) 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
(g) any other matters that the Commission considers relevant.”
 It is also relevant to consider s.635(2) of the Act which provides that the procedures and remedies concerning the conciliation and arbitration of claims, as well as the manner of deciding on and working out remedies:
“... are intended to ensure that, in the 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.” 23
 It is now well established that each of the paragraphs in s.652(3) must be considered in determining an application in so far as it has application or are relevant to the circumstances of the case and that a valid reason for the termination is only one of the specified matters.
 Further, it is accepted that the decision of the Full Bench of the Commission in King v Freshmore (Vic) Pty Ltd 24 (when considering s.170CG of the Industrial Relations Act 1998) is also applicable to s.652(3). In that case the Commission indicated its task was not to review the employer's decision as to what conduct occurred but to determine itself, on the evidence, whether the conduct occurred. It stated:
“ When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.
 The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”
 Whether or not the termination is at the initiative of the employer is not the same question as whether the termination is harsh, unjust or unreasonable. As stated by the Full Bench in Australian Hearing v L Peary: 25
“ We emphasise that the question of whether a termination is at the initiative of the employer is not the same question as whether the termination of employment is unfair. If the employer’s conduct forces an employee to resign it does not automatically follow that the termination was harsh, unjust or unreasonable. In deciding whether a forced termination is harsh, unjust or unreasonable all of the circumstances must be taken into account including the conduct of the employer, the conduct of the employee and the reasons for the conduct in each case.”
S.652(3)(a) - WAS THERE A VALID REASON FOR THE TERMINATION?
 There is a general acceptance that the often quoted words of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (Selvachandran) also apply to the existing provision:
“In its context in s.170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct …. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s.170DC.” 26
 The specific comments in the blog (refer to paragraph 22) which Real found offensive were:
 There is no doubt that the blog was publicly accessible through a Google search. Ms Dover-Ray did not explain satisfactorily why her evidence that she intended it to be only available to her MySpace ‘friends’ 27 was not inconsistent with her email of 5 May 2009 in which she advised Real that the blog: ‘... was considered the gentlest and safest way to attempt to bring other aggrieved and aware colleagues forward who have otherwise been too scared about losing their jobs to come forward.’28
 The question of whether or not Ms Dover-Ray intended the notice to be published in the general public domains adds little to these proceedings. It is enough that her ‘friends’ included other employees of Real 29 because (even if it had such a restriction) it could reasonably be expected that a document of such controversy would be circulated within the workplace. Ms Dover-Ray intended that her blog be read within the workplace where it would either be known or become known to other employees that it applied to her work experience.
 I found the submission that the blog could have been referring about any circumstance in Ms Dover-Ray’s life 30 beyond the reasonable limits of advocacy because it was inconsistent with an ordinary reading of the document as a whole.31
 Also, the relevance of Ms Dover-Ray’s evidence that the blog was anonymous was difficult to follow, 32 given the nature of these proceedings. The blog identified Ms Dover-Ray by photograph and name. It contained a date of 24 April 2009 and referred to the investigation she had just been through. For reasons to which I have already alluded it was about her workplace experience. Therefore it would have been clear to anyone who knew her that she was referring to her employment with Real. The blog may not have named Real, but it cannot be described as non-identifying to anyone who knew Ms Dover-Ray.
 The blog is, in effect, an attack on the integrity of the management of Real. The criticism of corruption is of such a nature and degree that it cannot be brushed aside by the submission on behalf of Ms Dover-Ray that Mr Grobler was being ‘precious’ by being personally offended by the criticism within the blog. 33
 The making of a sexual harassment complaint is a serious matter and both parties involved may feel anxious or uneasy about what lies ahead. There is no doubt in my mind that Ms Dover-Ray is convinced that she was sexually harassed by the manager. Therefore, it would be reasonable to expect that even if she had been advised sensitively that the investigators had found that there was insufficient proof to decide whether or not discrimination or harassment occurred, she may have felt disappointed and let-down.
 Unfortunately, because she was absent from the workplace, no such sensitive meeting took place. Rather, she learned of the news second-hand via her lawyer after he had been advised of the outcome by Real’s general counsel. There was no evidence of what her lawyer said to Ms Dover-Ray and whether she was made aware that (as contained in the subsequent confirming letter of 1 May 2009) Real would be implementing ‘refresher training’ around equal employment opportunity and diversity (amongst other things) within the company.
 In such circumstances, one could perhaps make allowance for Ms Dover-Ray’s actions, if she posted the blog in the heat of the moment and, after she had time to think more clearly about her on-going relationship with her employer and gained counsel on other options open to her, within a reasonable period of time had modified or removed the blog and expressed contrition for her actions. However this was not the case. During her evidence Ms Dover-Ray expressed the view:
“... if they (management) did happen to read it and they felt offended by it, then I'd feel, you know - it's what I felt at the time from what I'd gone through, from the investigation, and it was my belief that - how I'd been dealt with. If they were offended by it, then they were offended by it. I was offended by their investigation because I believed it to be corrupted, to be biased and to have been tampered with.” 34
 Ms Dover-Ray expressed the view that her opinions of Real management as expressed in the blog were still her opinions. 35
 It seems unfortunate that notwithstanding that Ms Dover-Ray had legal representation, she was unaware of other avenues available to her to pursue her allegations. 36
 Ms Dover-Ray’s failure to remove the blog when directed to do so might, in part, be explained by her purported belief that the site was available only to her ‘friends’.
 It is not necessary for me to find whether or not Ms Dover-Ray’s conduct was a breach of her obligations as an employee not to conduct oneself in a manner calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence between the employer and employee and to act with good faith towards her employer – that were implied terms of her contract of employment. 37 In Re: P. Annetta,38 the Full Bench found that to limit the meaning of the term ‘valid reason’ by importing a test amounting to the repudiation of the contract of employment at common law is ‘unwarranted and impermissible.’39
 In my opinion, after considering all of the circumstances, the conduct of Ms Dover-Ray in publishing the blog and refusing to modify or remove it within a reasonable period are, for the purposes of s.652(3)(a), a valid reason for the termination of her employment.
 Real had a Electronic Use and Information Security policy which included:
“Employees must not download, retrieve or send sexually explicit, harassing, racist or otherwise discriminatory or illegal material from the Internet or email at any time. The behaviour is considered to be serious misconduct and may result in the instant dismissal of the employee(s) involved.” 40
 The policy is provided to all new employees in their induction pack. Employees are required to indicate their adherence to the policy every time they logon to their computers.
 Ms Dover-Ray could not remember whether she did, or did not, receive the policy. 41
 The emailing of pornographic material in the workplace is a serious matter. As stated by the Full Bench in Re: Queensland Rail,42
“ ... It cannot be doubted that electronic traffic in sexually-related, pornographic and violent images is of legitimate and growing concern to employers. Such images, apart from being offensive to many, can undermine acceptable standards of behaviour in the workplace and create an environment conducive to harassment and discrimination. It is possible, even likely, that an employer which does not take active steps to eliminate traffic of this kind on its email and other electronic communication systems may incur legal liability, under anti-discrimination legislation for example. It is reasonable and, arguably, necessary that employers take what steps they can to eradicate traffic in such images. Although this case raises issues about the control of traffic in sexually-related, pornographic and violent images, similar issues may arise in relation to images of other kinds, such as images related to ethnicity or gender identity. ...”
 The pornography in the emails sent by Ms Dover-Ray is graphic and hard core.
 Ms Dover-Ray sought to minimise the seriousness of her emails by relying on the fact that others were circulating the emails in the workplace. That may be a relevant consideration if it had been demonstrated that this was accepted by management. To the contrary, Mr Grobler’s evidence was that everyone who had sent emails was brought into the investigation, certain employees had been dismissed and two employees who expressed immense remorse were given final warnings. 43
 I see no reason not to accept that Ms Dover-Ray sent the emails because this was her evidence. 44
 The fact that the emails tendered by Real did not disclose the name of others involved 45 seems appropriate, given the nature of these FWA proceedings.
 Even if I accepted as credible Ms Dover-Ray’s reasons why she sent the emails to the recipients, 46 such reasons are not acceptable reasons for sending such hard core pornography or for breaching the Real policy.
 It seems that Ms Dover-Ray was so absorbed in her own allegations that she did not appreciate the seriousness of sending such emails. This is patently evident from her email dated 5 May 2009 in response to the ‘show cause’ letter in which she showed no contrition for her actions by ‘completely rejecting’ the allegation that she had forwarded pornographic emails.
 After considering all of the circumstances, I find that the nature and degree of Ms Dover-Ray’s conduct in sending pornographic emails involved a matter of sufficient seriousness as to be another valid reason for the termination of her employment.
 An employer can reasonably expect an employee to be honest during investigations. Failure to do so can have serious implications. Although there is no general duty to volunteer information, at times an employee may be required to answer questions if, for example, the employer’s property was involved. 47
 Of course, the nature and extent of the dishonesty is the relevant issue.
 I am not convinced that Ms Dover-Ray’s failure to disclose the December 2008 email to the manager was an act of dishonesty, although it may have reflected poor judgement on her behalf.
 When Ms Dover-Ray was questioned about the pornographic emails at the meeting on 21 April 2009 she did not disclose the extent that she had sent the email. Also she did not reveal that she had emailed the other ‘Mum’s of the year’ email, which had not been discovered at that stage. She chose to remain silent. She maintained that position in her email dated 5 May 2009 in response to the show cause letter and in her affidavit that was filed for these arbitration proceedings. In my view, it is probable that when the show cause letter was received Ms Dover-Ray knowingly withheld the information in the hope that the other emails had not been discovered and in order to go on the front foot about her claims of corruption in respect of the investigation of her sexual harassment allegations. Subsequently, the information was withheld in order not to weaken her unfair dismissal claim. This continued until she was confronted with Mr Grobler’s evidence.
 I find it regrettable that although Ms Dover-Ray appears to be passionate about seeking justice in respect of her purportedly being a victim of sexual harassment in the workplace, she gives no impression that she has any understanding of the seriousness of her role in the distribution of pornographic emails (i.e., in effect being a perpetrator) or the linkage between the circulation of such emails in the workplace and the incidence of sexual harassment. Having observed Ms Dover-Ray give evidence, I doubt she will understand or accept this point of view.
 In my opinion, the prevailing circumstances were such that Ms Dover-Ray’s conduct, in publishing the blog and not modifying or removing it and in distributing emails with the pornographic photographs, did constitute a valid reason for the termination of her employment (within the meaning of Selvachandran).
S.652(3)(b) – WHETHER THE EMPLOYEE WAS NOTIFIED OF THAT REASON?
 The reference in s.652(3)(b) to ‘that reason’ is a reference to the valid reason for the employee's termination. 48 The reason must be given prior to the decision to terminate.49
 Ms Dover-Ray was, in effect, notified of the valid reason (refer to paragraph 79) in the ‘show cause’ letter. In issuing that letter Real had not intended to terminate her employment.
 There was no deliberate ‘decision’ by Real to terminate Ms Dover-Ray’s employment. This is evidenced by its letter dated 21 May 2009 which sought that her employment cease by mutual agreement of the parties.
 By the time her employment was terminated on 15 June 2009, Ms Dover-Ray had been notified of the reasons why she was being asked to show cause why she should not be summarily dismissed, in the letter of 1 May 2009 that the Full Bench found was the repudiation of her contract of employment. Such reasons in the ‘show cause’ letter did not contain the full extent of the valid reason (refer to paragraphs 90 and 91 below).
S.652(3)(c): WHETHER THE EMPLOYEE WAS GIVEN AN OPPORTUNITY TO RESPOND TO ANY REASON RELATED TO THE CAPACITY OR CONDUCT OF THE EMPLOYEE
 Section 652(3)(c) provides that the Commission must have regard to whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee. The opportunity to respond refers to an opportunity that is provided before a decision is taken to terminate the employee's employment. 50 The ‘any reason’ refers to the valid reason for the employee's termination.51
 In cases where an employee's conduct is involved, this opportunity serves two purposes. Firstly, it gives the employee the opportunity to demonstrate that the allegations have no foundation. Secondly, it gives the employee the opportunity to persuade the employer that, while the allegations are of substance, there are factors that should persuade the employer not to terminate the employment. Those factors may be extenuating personal circumstances or they may involve undertakings about future conduct. 52 The following comments of Moore J (when considering s.170DC of the Industrial Relations Act 1998) are relevant to the second purpose:
“ ... the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.” 53
 As already stated in respect of s.542(3)(b), there was no deliberate decision by Real to terminate Ms Dover-Ray’s employment.
 Mr Grobler’s evidence was that at the time that the ‘show cause’ letter was issued he had formed the view that he did not want her back at the company. 54 However he would not concede that the invitation to respond was holding out false hope because any response would have been meaningless.55
 Although the focus of the meeting on 21 April 2009 was about the sexual harassment allegations and not so much about the pornographic emails, 56 Ms Dover-Ray’s evidence was that the meeting provided her with the opportunity to explain why she had sent the first email to the 3 Real employees referred to in paragraph 18.57
 Insofar as the valid reason relates to Ms Dover-Ray’s conduct in publishing the blog and in distributing that email to those 3 employees, she had the opportunity to respond to the reasons when she responded to the ‘show cause’ letter.
 In respect of her failure to remove or modify the MySpace blog, Ms Dover-Ray sent her email dated 5 May 2009 in the knowledge that she had not done so. That email may, in effect, have explained why she had not complied with Real’s direction when she stated: ‘ ... If you have construed this is any way I am deeply sorry for this, but I feel that the company is simply blaming the victim/s in order to get on with business again and attempt to bully me out of the company.’
 When responding to the ‘show cause’ letter, Ms Dover-Ray would not have known that Real management had discovered that she had sent the first email to the 4 other persons, including persons outside the workplace. Further, she would not have known that her ‘Mum’s of the year awards’ email to an external person had been discovered. Therefore she was given no opportunity to respond to those portions of the valid reason.
 Therefore, for the purposes of s.652(3)(c), Ms Dover-Ray was given adequate opportunity to respond to some aspects of the valid reason for the termination of her employment but not given adequate opportunity to respond to all aspects of the valid reason.
S.652(3)(d): IF THE TERMINATION RELATED TO UNSATISFACTORY PERFORMANCE BY THE EMPLOYEE—WHETHER THE EMPLOYEE HAD BEEN WARNED ABOUT THAT UNSATISFACTORY PERFORMANCE BEFORE THE TERMINATION
 This consideration is not relevant to these proceedings given that Ms Dover-Ray’s employment was terminated on the grounds of misconduct, rather than her capacity. 58
S.652(3)(e): 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
 Real did not suggest that it could rely upon its size as a justification for any defects in the procedures followed in effecting the termination of Ms Dover-Ray’s employment.
S.652(3)(f): 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
 Real did not seek to rely upon its size as a justification for any defects in the procedures followed in effecting the termination of Ms Dover-Ray’s employment.
S.652(3)(g): ANY OTHER MATTERS THAT THE COMMISSION CONSIDERS RELEVANT
 I am required to have regard to any other matters I consider relevant.
 Ms Dover-Ray was employed by Real from 27 May 2008 until 15 June 2009.
 Ms Dover-Ray commenced alternative employment on 15 June 2009.
 Ms Dover-Ray has not received payment in lieu of notice of the termination of her employment. In my view her circulation of the pornographic emails warranted summary dismissal.
 The act of repudiation of her contract of employment was found to be the ‘show cause’ letter dated 1 May 2009. Her employment did not terminate until 15 June 2010 when she accepted the repudiation. Throughout the period from early May 2009 Ms Dover-Ray was on leave with the knowledge and informal endorsement of Real. 59
 Ms Dover-Ray has shown little to no contrition for the valid reason for the termination of her employment. 60
 I have considered the context in which Ms Dover-Ray published the blog (refer to paragraphs 38 and 55 - 57).
 I have considered Ms Dover-Ray’s alternative submission that the sanction of termination of her employment was disproportionate to the misconduct of sending the pornographic emails. I have not accepted that submission.
 Ms Dover-Ray was absent from work after 15 April 2009 and did not have opportunity to have direct dialogue with her employer.
 I have considered the relevance of Real’s letter dated 29 June 2009 which stated that Real had decided not to terminate her employment despite having valid reasons to do so. Further, she would be welcomed back to work, and should return to work. I accept that the letter was written on legal advice and should be viewed as a move to avoid Ms Dover-Ray’s unfair dismissal application. 61 The offer was declined and therefore lapsed. The offer does not somehow invalidate my finding of the valid reason for the termination of her employment.
 I have not considered whether Real’s investigation of Ms Dover-Ray’s allegations denied her procedural fairness. She was not terminated for reasons that included the findings of that investigation.
 I make no finding on whether Real’s threats of summary dismissal were in breach of anti-discrimination legislation. Obviously, a termination that is unlawful cannot be said to be not harsh, unjust or unreasonable. However that ground was not pressed by Ms Dover-Ray’s lawyer at the hearing and therefore it is not necessary for me to form an opinion on whether or not such a breach occurred as a stepping-stone to arbitrating the application. 62
CONCLUSION ON HARSH, UNJUST OR UNREASONABLE AND A FAIR GO ALL ROUND
 After having regard to each of the matters in paragraphs 652(3)(a) to (g) of the Act insofar as they have application or are relevant to the circumstances of this case I am not satisfied that the termination of Ms Dover-Ray’s employment was harsh, unjust or unreasonable.
 In arriving at that decision I have been conscious of the objects of Division 4 (Termination of Employment) of Part 12 of the Act, including ensuring that both Ms Dover-Ray and Real are accorded a ‘fair go all round’.
 Despite the procedural difficulties identified in relation to s.652(3)(b) and (c) of the Act, I am of the view that the deficiencies are not of sufficient significance to upset the conclusion that, on balance, the termination of Ms Dover-Ray’s employment was not harsh, unjust or unreasonable.
Mr T Drake, solicitor for Ms Tamicka Louise Dover-Ray
Ms M Jones, Employee Relations Manager for Real Insurance Pty Ltd
1 On 7 July 2010 Raffaelli certified that all reasonable attempts to settle the matter by conciliation have been, or are likely to be unsuccessful. The delay after the conference was a consequence of the jurisdictional objection and the appeal of the decision thereon.
2 Ms Tamicka Louise Dover-Ray v Real Insurance Pty Ltd,  AIRC 878, 30 October 2009
3 Ms Tamicka Louise Dover-Ray v Real Insurance Pty Ltd,  FWAFB2670, 9 April 2010
4 Exhibit D1, Annexure A, paragraph 54
6 Applicant’s outline of submissions, paragraph 7
7 Ms Dover-Ray recalled that her email said that ‘I supported him, not to waste his talents and if nothing else I loved him. I can not remember exactly what it was about but it had on the end of it I will meet you at 7pm on the balcony’. (Exhibit D1, Attachment A, paragraph 78)
8 Exhibit J1, Attachment C
9 Exhibit D1, Attachment A, paragraph 92
10 Exhibit D1, Attachment A, paragraph 90
12 PN850 - PN851 & PN903 - PN906
13 Exhibit J1, Attachment A
14 The request was not made directly - PN345
15 Exhibit J1, Attachment F
16 PN1059. There was no evidence from Ms Dover-Ray to the contrary.
20 During the hearing Real did not press, as a valid reason for the termination, its concern about Ms Dover-Ray’s failure to disclose her relationship with a former employee who had made a complaint against the same manager.
22 McHugh and Gummow JJ, (1995) 185 CLR 410 at 465
23 The Note to s.635(2) states that the expression ‘fair go all round’ was used by Sheldon J in Re: Loty and Holloway v Australian Workers Union (1971) AR (NSW) 95.
24 Op cit
25  AIRCFB 680, 28 July 2009, per Giudice P, Kaufman SDP, Larkin C
26 (1995) 62 IR 371, 373
27 PN336 & PN447 - PN449
28 PN483 - PN486
31 Note references to: ‘sitting at a desk, doing your job’, people being ‘dismissed’, ‘integrity of the workplace’, ‘Senior Management that is meant to be protecting the workers’, ‘within the workplace’, ‘co-worker’ (3 times), ‘didn’t affect my holiday or sick pay’, and ‘we would talk at work’.
37 I discussed the implied term of contracts of employment in my decision in Australian Licenced Aircraft Engineers Association, The v Qantas Airways Limited,  AIRC 268, 17 March 2009, paragraphs 140 - 146.
38 Print S6824, 7 June 2000, per Giudice P, Williams SDP, Cribb C
39 At paragraph 10
40 Exhibit J1, Attachment G
42 PR974391, 19 October 2006, per Giudice P, Harrison SDP, Hingley C
43 PN594, PN775, PN547 & PN864
44 Exhibit D1, Attachment A, paragraph 90, and PN327 - PN331
46 If Ms Dover-Ray sent the external emails for the purpose of exposing what was going on at Real, (PN397) it would have seem logical to bring them to the attention of management. Also that reason does not explain why the email to a relative was sent with the message ‘hahahahaha.’
47 M. May v Boyne Smelters Limited, Print R7793, 20 August 1999
48 Decision of the Full Bench in P Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, Print S5897, 11 May 2000, per Ross VP, Acton SDP and Cribb, at para 64. Endorsed by the Full Bench decision in Ben Clifton Sabeto v Waterloo Car Centre Pty Limited trading as Red Spot Rentals, PR930816, 20 May 2003, per Acton SDP, O'Callaghan SDP and Foggo C, at paragraph 8
49 P Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, op cit, at paragraph 73. Also endorsed in Ben Clifton Sabeto v Waterloo Car Centre Pty Limited trading as Red Spot Rentals, op cit at paragraph 8
50 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, op cit, at paragraph 75
51 Tenix Defence Systems Pty Ltd v Fearnley, Print S6238, 22 May 2000, per Ross VP, Polites SDP, Smith C, at paragraph 83
52 Ross VP, in Shorten and Others v Australian Meat Holdings Pty Ltd, (1996) 70 IR 360, 361
53 Wadey v YMCA Canberra  IRCA 568 (12 November 1996)
55 PN801 - PN805
57 PN326. Also refer to paragraph 27(c).
58 Re: P. Annetta, op cit, at paragraph 16
59 Decision of Full Bench, paragraph 4
60 I do not accept the submission on her behalf that there was nothing more that she could say in respect of her pornographic emails because she had been to an interview and explained it and ‘Look I’ve explained it. What more could I say?’ (PN1250)
62 It is the practice of FWA to ‘form an opinion’ in circumstances where the tribunal is called on to exercise its general arbitration powers. In those circumstances an opinion is formed as a stepping-stone towards the arbitration because FWA cannot exercise a judicial power (Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd, (1987) 163 CLR, per Mason CJ, Brennan, Deane, Dawson and Toohey JJ, 140, 149
Printed by authority of the Commonwealth Government Printer
<Price code C, PR503484>