1
Fair Work Act 2009
s.394—Unfair dismissal
Matthew Hughes
v
Momentum Wealth Pty Ltd T/A Momentum Wealth
(U2016/8592)
COMMISSIONER WILLIAMS PERTH, 29 DECEMBER 2016
Termination of employment.
[1] This decision concerns an unfair dismissal remedy application made by Mr Matthew
Hughes (Mr Hughes or the Applicant) under section 394 of the Fair Work Act 2009 (the Act).
The Respondent is Momentum Wealth Pty Ltd T/A Momentum Wealth (Momentum or the
Respondent).
Background
[2] Mr Hughes had been employed with Momentum since October 2014 as a Property
Strategist.
[3] Mr Hughes was dismissed on 14 July 2016. His dismissal followed his suspension and
an investigation into his behaviour at a work social event held at a hotel on Friday, 1 July
2016.
[4] At the hearing of this matter Mr Hughes gave evidence and evidence was given in
support of his application by Ms Bianca Patterson (Ms Patterson), who had been employed at
Momentum as a Property Wealth Manager and a Mortgage and Finance Specialist between
2010 and May 2016.
[5] At the hearing Momentum called five witnesses the Managing Director Mr Damian
Collins (Mr Collins), Ms Jennifer Wakeman (Ms Wakeman) Momentum’s General Manager,
Mr Arin Di Camillo (Mr Di Camillo) Mr Hughes’ manager at Momentum, Mr Justin
McManus (Mr McManus) a joint venture partner who works alongside Momentums
employees and Mr Kent Cliffe (Mr Cliffe) Momentum’s Relationship Manager.
[2016] FWC 9072 [Note: An appeal pursuant to s.604 (C2017/294) was
lodged against this decision - refer to Full Bench decision dated
13 February 2017 [[2017] FWCFB 759] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2017FWCFB759.htm
[2016] FWC 9072
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Evidence and factual findings
[6] Having considered the evidence of all of the witnesses I make the following findings.
[7] Mr Hughes was first employed with Momentum in October 2014. He was dismissed
on 14 July 2016.
[8] In terms of his work performance Mr Hughes performed at a high level and was highly
regarded.
[9] In early 2016 Mr Hughes was approached by a former employer who made him an
offer which from his perspective was very attractive in terms of the salary package, as it
incorporated a loan that would have enabled him to clear up debts Mr Hughes had from a
previous business of his1. Mr Hughes then spoke to Mr Di Camillo about the offer and
explained that it was hard for him to ignore the offer but he did not really wish to leave
Momentum. Following this there was a discussion between Mr Hughes and Mr Collins
whereby they made an agreement (the Loan Agreement) which involved Momentum loaning
Mr Hughes an amount of $88,000.00. This enabled Mr Hughes to reject the offer from his
former employer and remain employed with Momentum.
[10] The Loan Agreement between Momentum and Mr Hughes2 was executed by the
parties on 18 April 2016. In summary the agreement was for Momentum to lend Mr Hughes
the principal sum of $88,000.00 and for Mr Hughes to pay interest and repay the principal
sum by no later than 24 months from the loan being advanced to him. The interest rate for the
first 24 months was at 0% per year.
[11] Clause 4.2 of the Loan Agreement reads as follows:
“If the borrower ceases to be employed by Momentum Wealth Property Pty Limited at
any time then the whole of the principal sum is payable to the lender within seven days
of the cessation of employment.”
[12] On 21 June 2016 there was an all staff meeting which Mr Hughes attended. At that
meeting Mr Collins addressed the staff and reminded everybody that responsible behaviour
was expected at the upcoming social club event to be held on Friday, 1 July 2016, as they
were representing Momentum.
[13] On Friday, 1 July 2016 Momentum held a work social club event at a hotel. A number
of Momentum staff attended including Mr Hughes, Mr Collins, Ms Wakeman, Mr McManus
and Mr Cliffe. Momentum had been provided with a roped off section in the venue for their
function and paid for drinks and food consumed by their staff for a fixed period.
[14] There was an incident between Mr Hughes and another patron about which there is
conflicting evidence as to what occurred and what happened afterwards.
[15] In all likelihood the incident occurred shortly after Momentum had stopped paying for
the drinks and food consumed by their staff, however at least 12 Momentum staff were still
present.
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[16] Mr Hughes in his witness statement said only that he was the subject of a mild assault
by a drunken patron who was then ejected and he thought nothing of it, however Mr Collins
sent his personal assistant Ms Blaithin Conaty (Ms Conaty), over to Mr Hughes to tell him to
leave the event. Subsequently Mr Collins had a discussion with Mr Hughes in which Mr
Hughes expressed he was unhappy at being asked to leave given he had done nothing wrong.
Nonetheless he left shortly thereafter.
[17] However at the hearing, Mr Hughes in his evidence in chief expanded on this and
stated that he was shirt fronted by the patron, who aggressively bumped into him. Mr Hughes
said he was thrown backwards and put out his hand to create space between himself and the
patron. Whilst Mr Hughes was stepping backwards the patron stumbled backwards and fell.
The patron got up and lunged towards Mr Hughes and fell forward. Mr Hughes says he did
not make contact with the patron prior to him falling over. Mr Hughes’ evidence was he was
not at any time standing over the patron when the patron was on the floor. He says Mr Cliffe
then rushed in and grabbed Mr Hughes by both wrists and restrained him3. Mr Hughes says
that shortly afterwards he approached Mr Cliffe at the bar in an agitated manner and
challenged him as to why he thought it was necessary to restrain him.
[18] Some days later Mr Hughes approached the Venue Manager of the hotel who sent him
an email which amongst other things said that he had looked at the security cameras footage.
The Venue Manager said:
"I believe that his gestures to the people in your function area had been inappropriate
and wished I had seen this in time. As a result of this I can clearly see that you have
tried to create some space from this gentleman and have pushed him back and he has
lost his footing and fallen over not once but twice, which may have looked to others to
be a scuffle. After reviewing the footage the only scuffle, really, was with the other
gentleman as we removed him from the building. I hope this has not tarnished your
enjoyment too much on the evening. I hope that you will still choose to frequent the
venue."
[19] The evidence of Ms Patterson was that she did not witness the incident between Mr
Hughes and the patron however she did see Mr Cliffe stepping in between Mr Hughes and the
patron. Her evidence was that from her observation both Mr Collins and Mr Hughes had been
drinking and should not have driven a car but were definitely still able to hold a normal
conversation. Sometime, days after these events she said Mr Hughes told her he was
dismissed because he was in a fight.
[20] The evidence of Mr Collins is that at the function he did not see the initial interaction
between Mr Hughes and the patron but witnessed Mr Cliffe trying to push Mr Hughes away
from the patron who was on the floor. Mr Hughes was trying to push past him. Mr Cliffe
yelled at Mr Hughes something like ‘don’t be an idiot, this is a work function’. Mr Collins
says then another Momentum employee, Mr Merrick, also intervened to restrain Mr Hughes.
[21] The evidence of Ms Wakeman was that at the function she heard a commotion, turned
around and saw a patron on the floor on his back. She saw Mr Hughes standing over him with
a clenched right fist and he looked like he was about to punch the patron. She saw Mr Cliffe
[2016] FWC 9072
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move over and place himself between Mr Hughes and the patron. She saw another
Momentum employee Mr Merrick also move towards Mr Hughes.
[22] The evidence of Mr Cliffe was that at the function he heard shouting behind him and
turned around to see a patron on the ground on his back with Mr Hughes standing over him.
He observed Mr Hughes had his right fist clenched and his right arm was raised over the
person on the ground. He says he was concerned for the patron on the ground and
immediately went over to Mr Hughes to restrain him. He placed himself between Mr Hughes
and the patron. He kept Mr Hughes away by pushing him back with open palms and said
“don’t be an idiot, this is a work function”. Another Momentum employee, Mr Merrick, then
restrained Mr Hughes by placing him in a bear hug.
[23] The evidence of Mr McManus was that at the function, during the course of the
evening, a patron bumped into him and apologised. Mr McManus had brief chat with the
patron. Later he noticed the same patron near Mr Hughes. He next saw the patron lying on his
back on the floor but did not see how this had occurred. He saw Mr Cliffe attempting to push
Mr Hughes away from the patron, who was on the ground, and heard Mr Cliffe tell Mr
Hughes “this is a work function”.
[24] The evidence of Ms Patterson was that the floor of the venue was wet and slippery due
to people having spilt their drinks.
[25] Considering the evidence as to the incident between Mr Hughes and the patron I find
that the patron, as Mr Hughes said, initiated the first contact by bumping into Mr Hughes. I
am also satisfied that as the Venue Manager stated in his email Mr Hughes did push the
patron however the patron fell to the ground largely because he lost his footing on the slippery
floor, rather than due to the force of Mr Hughes’ push.
[26] However I reject Mr Hughes’ evidence that he had not stood over the patron in an
aggressive and threatening manner whilst he was on the ground. To the contrary I find that
whilst the patron was on his back on the ground Mr Hughes stood over him with a clenched
fist and his arm raised as if he was about to punch the patron. I find that Mr Cliffe having seen
this had good reason to intervene as he, and subsequently Mr Merrick, did to restrain Mr
Hughes. Mr Hughes had over overreacted in an unnecessarily aggressive manner towards the
patron bumping into him.
[27] I also accept the evidence of Mr Cliffe that Mr Hughes said to him ‘get you’re fucking
hands off me’ to which Mr Cliffe replied that he should “pull his head in”. Mr Hughes then
pushed his chest into Mr Cliffe’s and told him in a threatening tone “don’t you fucking touch
me”.
[28] Next the security staff at the venue intervened. The security staff ejected the patron
from the premises and told Mr Hughes to calm down.
[29] I find that Mr Cliffe then moved away from the area where the incident occurred and
moved towards the bar. Mr Hughes then came over to where Mr Cliffe was and Mr Hughes
again in an aggressive manner stood very close to Mr Cliffe and verbally threatened him
telling Mr Cliffe never to touch him again4.
[2016] FWC 9072
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[30] Mr Collins then asked his Executive Assistant Ms Conaty who was the event organiser
to tell Mr Hughes that he should now leave the venue. Ms Conaty went over and spoke to Mr
Hughes and asked him to leave but he refused to do so. Ms Conaty returned to where Mr
Collins was and told him that Mr Hughes had refused to leave so Mr Collins went over to
speak to Mr Hughes.
[31] Mr Collins told Mr Hughes that given there had been the incident he should now leave
the venue. Mr Hughes became agitated and repeatedly said that he had done nothing wrong
and had not hit the patron. Mr Hughes was abusive to Mr Collins. Mr Collins tried to explain
this wasn’t a judgement on Mr Hughes but it would be best if he left the venue. After asking
him to leave at least three times Mr Hughes agreed to do so and left the venue.
[32] On Sunday, 3 July 2016 Ms Wakeman sent a text message to Mr Hughes’ work phone
advising that he was to be stood down pending an investigation into the events of Friday, 1
July 2016. Mr Hughes however, was unaware of this text message and attended for work as
usual on the morning of Monday, 4 July 2016.
[33] Mr Di Camillo was Mr Hughes direct manager. He and Mr Hughes were friends. Mr
Di Camillo did not attend the function on Friday, 1 July 2016. He had, however, been advised
by Mr Collins on Sunday, 3 July 2016 that Mr Hughes had been stood down to allow an
investigation into the events at the work function. Mr Di Camillo came to work on Monday, 4
July 2016 and having been notified that Mr Hughes was being stood down told his team that
Mr Hughes would not be in the office that day. He did not advise the staff that Mr Hughes had
been stood down.
[34] Shortly after arriving at work Mr Hughes came to see Mr Di Camillo and asked him
what was going on and why was he telling people he wouldn’t be in. I accept the evidence is
that Mr Hughes was in an agitated state. Mr Di Camillo told Mr Hughes that he had been
stood down because of the incident at the work function on the Friday. Mr Hughes responded
in an angry and aggressive manner5. I accept Mr Di Camillo said words to the effect to Mr
Hughes of “Mate take it easy, you’ve been stood down for your aggressive behaviour and
now you’re acting aggressively towards me.” Mr Di Camillo told him to leave the premises.
[35] Mr Hughes ignored the direction from his manager and did not leave the premises. Ms
Wakemen became aware Mr Hughes had been spoken to by Mr Di Camillo and had been
unaware he had been stood down. She rang him and explained he was stood down pending an
investigation and he should leave the premises. Mr Hughes hung up on her. Ms Wakeman
next saw him come out of a meeting room and asked to speak to him in her office. She again
explained he was stood down whilst there was an investigation into the events at the work
function and he would have an opportunity to explain his side in the coming days. She asked
for his security fob which he threw across the desk to her and he then did leave the premises.
[36] At Mr Hughes’ request Mr Di Camillo met with him later that day outside of work.
The discussion was largely around what had occurred at the work function at the hotel the
previous Friday night because Mr Di Camillo was not present and was not aware of the
events. I accept that Mr Di Camillo explained to Mr Hughes that there would be an
[2016] FWC 9072
6
investigation and the company would work through a process but that if the investigation does
not turn out in his favour he might be sacked.
[37] At 6.29 p.m. on Monday 4 July 2016 Mr Collins, in response to an email enquiry from
Mr Hughes, emailed Mr Hughes advising that he was stood down on full salary whilst the
investigation was conducted which was expected to take two days being the Monday and the
Tuesday. Mr Collins explained the matter being investigated is the alleged altercation between
Mr Hughes and the patron on Friday night and the exchanges that followed between Mr
Hughes and staff, post this event. Mr Hughes was to be given an opportunity to respond on
Wednesday 6 July 2016 and would be contacted to confirm a meeting time. Mr Hughes was
advised he was entitled to bring a support person to the meeting.
[38] The evidence is that over the Monday and Tuesday Ms Wakeman obtained statements
from 12 employees of Momentum regarding the events at the work function on the previous
Friday. Having reviewed these statements Ms Wakeman and Mr Collins prepared a document
(the Allegations) consisting of 36 numbered paragraphs6 which detailed their understanding of
what had occurred at the work function, the events of Monday morning and a previous verbal
warning in 2014.
[39] Mr Hughes was directed to attend a meeting concerning the Allegations on
Wednesday 6 July 2016 at 1.00 p.m. Mr Hughes attended with his lawyer Mr Graham. Also in
attendance were Ms Wakeman, Mr Di Camillo and Ms Temm who took minutes of the
meeting. The minutes of the meeting were quite detailed comprising 6 ½ pages7.
[40] Ms Wakeman began reading through the 36 points of the Allegations. Mr Hughes
asked that all the Allegations be read out and he would comment at the end. Having read out
all of the Allegations Mr Graham requested an adjournment which was agreed to. Mr Hughes
and Mr Graham returned approximately 10 minutes later. Mr Hughes was told that he now
had a chance to respond and that Momentum would take into account what he said. Mr
Hughes requested a copy of the Allegations and the statements of the staff. He was advised
that he would be given a copy of the Allegations but not the staff’s statements. A copy of the
Allegations was provided to Mr Hughes and Mr Graham and a further adjournment of
approximately 25 minutes was granted.
[41] I accept the evidence that the minutes reasonably reflect the responses Mr Hughes
gave. Mr Hughes did not respond to each of the 36 points. The minutes record his responses
to points 3 to 16 inclusive. Mr Hughes did not respond to the Allegations regarding the events
in 2014 and the verbal warning.
[42] Mr Hughes responses involve denials that he had been aggressive towards anybody at
the work function. He stated he did not throw a punch or strike the patron and that Mr Cliffe
had grabbed him aggressively and told him to calm down when he was already calm.
[43] Mr Hughes asked if Momentum had sought to view the security video footage of the
incident and Ms Wakeman advised they had not but had established an account of the events
from the 12 members of staff they spoke to.
[44] Mr Hughes read out the email from the Venue Manager he had received.
[2016] FWC 9072
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[45] Mr Hughes asked when he can expect an outcome from the meeting and he was
advised that they would let him know tomorrow.
[46] This meeting commenced at 1.00 p.m. and concluded at approximately 2.30 p.m.
[47] I find that during this meeting Mr Hughes did not accept he had done anything wrong
at the work function on the Friday and consequently he showed no remorse.
[48] Mr Hughes sent a copy of the Venue Manager’s email through to Mr Collins, Ms
Wakeman and Mr Di Camillo that evening.
[49] I accept the evidence of Mr Collins and Ms Wakeman that that evening they reviewed
the situation together and considered what had occurred at the work function and Mr Hughes’
behaviour that night, Mr Hughes’ responses at the meeting earlier in the day and his refusal to
acknowledge any wrongdoing and the fact that Mr Hughes had been given a verbal warning in
2014 for aggressive behaviour in the workplace after he had head-butted a staff member.
[50] The next day Thursday, 7 July 2016 Mr Collins and Ms Wakeman discussed what
action should be taken with Mr Di Camillo. It was their common view that Mr Hughes should
be dismissed for misconduct.
[51] Mr Hughes was requested to attend a meeting later that day which he did so again with
his lawyer Mr Graham. This was also attended by Mr Collins, Ms Wakeman and Mr Di
Camillo. Mr Collins advised that Momentum’s concern about Mr Hughes’ incident with the
patron at the work function was only part of the matter and that his behaviour towards Mr
Collins afterwards and towards other staff members that night was not acceptable. He was
also advised that his behaviour in the office on Monday, 4 July 2016 was not acceptable. Mr
Collins said that Mr Hughes had failed to take responsibility for his actions and they no longer
had confidence in him. Mr Collins advised Mr Hughes that he was to be terminated for
misconduct and given two weeks’ pay in lieu of notice.
[52] Subsequently the parties entered into without prejudice negotiations regarding Mr
Hughes repayment of the principal sum from the Loan Agreement, commissions that are
potentially owing to Mr Hughes and other financial matters. Mr Graham requested that
Momentum not terminate Mr Hughes until 12 July to allow time for settlement terms to be
agreed. Ultimately no settlement was reached and consequently Momentum terminated Mr
Hughes employment with two weeks’ pay in lieu of notice on 18 July 2016.
[53] Evidence was also given as to an incident in 2014 between Mr Hughes and another
staff member of Momentum Mr Wood. Mr Hughes’ evidence was that some employees of
Momentum had gone out for a drink after work and were at a restaurant. Mr Collins and Mr
Di Camillo were present.
[54] Mr Hughes was friendly with Mr Wood who was also in attendance at the after work
drinks. Mr Hughes says that he and Mr Wood were messing around, play fighting and he
motioned to head-butt Mr Ward but actually connected with him but didn’t mean to. Both he
and Mr Wood were immediately shocked. There was no loud crack and Mr Wood’s nose was
[2016] FWC 9072
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not bleeding. His nose was not broken or cracked and there was no real damage done. Five
minutes later Mr Hughes says Mr Wood was fine and they continued with their night out.
This was just two mates messing around and it ended poorly by mistake. Mr Hughes says he
never meant to hurt Mr Wood. Mr Hughes said there was no aggression intended by him.
[55] His evidence was that the following week he had a meeting with Mr Di Camillo who
got him and Mr Wood into the office and Mr Di Camillo told him he should apologise and
they should move on. He says that Mr Collins also met with him after this incident and told
him what occurred was unacceptable. Mr Hughes had apologised and says that was the end of
it.
[56] Mr Collins’s evidence was that at the restaurant he saw Mr Hughes swing his head
back and head-butt Mr Wood in the nose. Mr Wood’s nose began to bleed and Mr Collins
says he found out later his nose had been cracked. Mr Collins evidence was that when he went
up to Mr Hughes later and asked why he did that, Mr Hughes said Mr Wood deserved it8.
[57] Later Mr Woods told Mr Collins he was upset about what had happened but knew Mr
Hughes from outside of work and didn’t want to make an issue of it as they had mutual
friends.
[58] Mr Collins says that Mr Hughes rang him the next day Saturday, 22 November 2014
and apologised for his behaviour and promised he wouldn’t do it again. Mr Collins told him
that he was giving him a final warning and if there were any further acts of aggression they
would not be tolerated.
[59] Mr Di Camillo’s evidence as to what occurred in 2014 was consistent with Mr Collins.
Under cross-examination he rejected the proposition that what occurred was accidental.
Further his evidence was that he discussed the incident with Mr Collins over the weekend of
22 and 23 November 2014. Mr Collins said he had given Mr Hughes a final warning and that
he as Mr Hughes’ manager should also emphasise the seriousness of the matter to Mr Hughes.
Mr Di Camillo’s evidence which I accept is that on Monday, 24 November 2016 he met with
Mr Hughes and told him that his head-butting conduct was totally unacceptable and any
future acts of aggression would result in his dismissal. He advised him this was a final
warning. Mr Hughes said he understood and apologised for his behaviour. Mr Collins was
away on 24 and 25 November 2014 however on his return on 26 November the evidence of
Mr Di Camillo which I accept is that he and Mr Collins again met with Mr Hughes and
informed him that any further acts of aggression would result in his dismissal. Mr Hughes
again apologised and said he understood the warning was final and he would be sacked if it
happened again. This evidence of Mr Di Camillo was not challenged in cross-examination.
[60] Mr Cliffe’s evidence as to what occurred in 2014 was that he saw Mr Hughes swing
his head forward and head-butt Mr Wood. He heard a crack and then saw Mr Wood was
holding his nose which was bleeding and he went off with Mr Wood to the toilet to assist him.
Mr Cliffe’s evidence was that when he returned to the group he asked Mr Hughes why he had
head-butted Mr Wood and his response that was that Mr Wood deserved it. Mr Hughes was
laughing and smirking in an arrogant manner. Mr Cliffe’s evidence was that Mr Wood had
not shown any aggression to Mr Hughes at any stage of the night leading up to the incident.
[2016] FWC 9072
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Mr Cliffe rejected under cross-examination Mr Hughes’ explanation that he had inadvertently
made contact with Mr Woods rather than deliberately having head-butted him.
[61] Considering the conflicting evidence between Mr Hughes and Mr Collins, Mr Di
Camillo and Mr Cliffe as to what occurred between himself and Mr Wood in November 2014
I reject Mr Hughes’ evidence. I accept the evidence of the other three witnesses and find that
Mr Hughes deliberately head-butted Mr Wood for no apparent reason. Mr Hughes at the time
said words to the effect that Mr Wood deserved it. Mr Wood was injured and his nose was
bleeding. I also accept that both Mr Collins and Mr Di Camillo separately and then together
spoke to Mr Hughes and advised him that his aggressive behaviour which led to him injuring
Mr Wood was unacceptable and he was given a final verbal warning and expressly advised
that any further instances of aggression would result in his dismissal.
The Applicants submissions
[62] It is trite to say that a dismissal is unfair if it is found to be harsh, unjust or
unreasonable.
[63] A dismissal will be considered ‘unfair’ in this sense if, inter alia:
a. The employee was not guilty of the alleged misconduct underlying the
dismissal;
b. Alternatively, the termination was a disproportionate response to said conduct;
and/or
c. The evidence relied upon by the employer in respect of the termination did not
support the conclusions reached by the employer.
[64] Section 387 of the Act lists a number of factors that must be taken into account when
considering whether a dismissal was unfair, including (but not limited to) whether there was a
valid reason for the dismissal, and whether the employee was given an opportunity to respond
to any reasons intended to be relied upon by the employer as grounds for dismissal.
Relevant Facts
[65] The relevant facts in this matter include the following:
a. The employer is a substantial organisation, with 33 employees, a senior staff
member (Ms Wakeman) assigned to deal with employment related matters, and
the resources to access external counsel in this respect as needed;
b. The employer’s “investigation” into the incident on Friday, 1 July (apparently)
comprised the collation of a number of subjective accounts from other staff
members. The employer expressly refused to provide the statements it had
allegedly gathered in the course of the investigation to the employee;
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c. When presented with objective evidence from the Venue Manager, confirming
the employee’s account of events and contradicting the version of events
allegedly recounted by certain staff members (again, the employer has and
continues to refuse to provide these documents), the employer:
i. Had no explanation for why it had not bothered to contact the
venue in the course of the investigation, other than to state it had
no obligation to do so;
ii. Confirmed that it was content with the subjective evidence it
had apparently gathered from other employees, and did not
believe it was necessary to take the evidence from the Venue
Manager into account;
iii. Did not in fact take that evidence into account when making the
final decision to terminate the employee.
d. The actual termination of the employee occurred sometime prior to 14 July
without notice, as evidenced by the removal of the employee from the
company website and the communications made by the employer to third
parties (including the employee’s lending institution, resulting in a loan
application being declined);
e. The employee occupied a specialist, high performance role, which does not
have an equivalent in other organisations. As such, the employee was not able
to find equivalent work upon termination, and has not earned an income since
leaving employment;
f. To the extent that the employer attempts to argue that the termination was
based on events other than the 1 July incident, such assertions are completely
inconsistent with the evidence. If it is found that the incident on 1 July was not
grounds for dismissal, it is the Applicant’s contention that the inevitable
outcome must then be that his dismissal was unfair;
g. To the extent that issues of credibility, workplace culture and issues of bullying
and harassment are relevant, the evidence from other ex-employees of
Momentum is relevant.
[66] Accordingly the Commission should conclude that the dismissal of Mr Hughes was
unfair and in the circumstances order a remedy of compensation.
Submissions of the Respondent
[67] Section 387 of the Act requires there to have been a valid reason for a dismissal and
for an employee to be have been provided procedural fairness. The employee is to be advised
about the allegations against them and given an opportunity to respond. The process, assessed
objectively, must be a “fair go all round” between employer and employee.
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[68] The Respondent had not just a valid reason, but several reasons, to dismiss the
Applicant including his:
1. Aggressive, offensive and threatening behaviour during a function on 1 July
2016;
2. Argumentative demeanour during that function and when directed to leave
the function;
3. Refusal to accept that his behaviour at the function was in any way
inappropriate;
4. Refusal to accept any responsibility for his behaviour at the function;
5. Refusal to leave the Respondent’s offices when directed to do so on 4 July
2016.
[69] Mr Hughes was afforded procedural fairness on 6 July 2016 including being given
adequate opportunity to respond to the allegations against him. The Applicant was notified
before the meeting that it was about his behaviour at the function on 1 July 2016:
1. The Applicant had his solicitor as his support person in attendance
throughout the meeting on 6 July 2016;
2. During the meeting the Applicant took advice from his solicitor outside the
meeting, returning each time to provide his responses to various allegations;
3. The Applicant was provided a two-page document setting out the allegations
against the Respondent;
4. The Applicant was advised that his job was on the line.
[70] After that meeting, the Respondent made an assessment of all the details and
information before it and determined that the employment should be terminated.
[71] This process was inherently fair and reasonable and the dismissal was fully justified.
[72] Mr Hughes was not unfairly dismissed and this application should be rejected.
Consideration
[73] Section 387 sets out the matters the Commission is required to consider when deciding
whether or not in this case Mr Hughes’ dismissal was unfair.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
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(a) whether there was a valid reason for the dismissal related to the
person’s capacity or conduct (including its effect on the safety and welfare of
other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be
likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource
management specialists or expertise in the enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[74] I have considered the submissions made on behalf of Mr Hughes that were critical of
the investigation undertaken by Momentum into the events of the night of Friday, 1 July
2016. I do not accept Momentum should have approached the hotel where these events
occurred and requested them to provide CCTV footage of what occurred, nor do I accept that
Momentum should have sought to question the staff of the venue or other venue patrons as to
what they had seen that night. It should be remembered that employers are not expected to
conduct a forensic investigation into alleged misconduct by their employees to the same
standard as a police investigation. In this instance there were numerous Momentum
employees present who were able to provide information as to what they had seen.
Momentum’s investigation was appropriate in the circumstances.
[75] I have also considered the submission made on behalf of Mr Hughes that Mr Collins
and Ms Wakeman actually wanted to dismiss him in order to trigger the requirement of the
Loan Agreement that Mr Hughes repay the principal sum owing to them. The Loan
Agreement would require this amount to be repaid within 7 days of Mr Hughes employment
ceasing. It is submitted that this was the real reason for his dismissal and that were it not for
this motivation Mr Hughes would not have been dismissed at all. Whilst I accept that
dismissing Mr Hughes did have the effect of triggering the requirement that he repay the
principal sum owing there is no evidence to support this submission that this was a factor in
the decision-making of the Respondent to dismiss Mr Hughes. As will be seen below there
were other good reasons as to why Momentum acted to dismiss Mr Hughes.
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[76] Relevantly what occurred at the Momentum social club function on Friday 1 July 2016
was that a patron bumped into Mr Hughes. Mr Hughes pushed the patron who lost his footing
largely because of the slippery floor and fell to the ground. Mr Hughes’ response to this extent
was reasonable in the circumstances. Mr Hughes’ conduct from this point onwards however
was not reasonable. Whilst the patron was on his back on the ground Mr Hughes stood over
him with a clenched fist and his arm raised and it appeared he was about to punch the patron.
There was no necessity for this aggressive reaction by Mr Hughes. Seeing this two other
employees of Momentum intervened and restrained Mr Hughes. Mr Hughes in response
swore at one of the Momentum employees in a threatening manner and pushed him with his
chest. That employee moved away from the area, however Mr Hughes came over to him and
again behaved aggressively, standing very close to the other Momentum employee and
verbally threatening him.
[77] Shortly after this, the event organiser who Mr Hughes knew was Mr Collins’
Executive Assistant, told Mr Hughes that he should now leave the venue but he refused to do
so. Mr Collins, Momentum’s Managing Director, then spoke to Mr Hughes and told him that
he should now leave the venue. In response Mr Hughes became agitated, repeatedly said he
had done nothing wrong, was abusive to Mr Collins and refused to leave. After being asked to
leave three times by Mr Collins, Mr Hughes agreed to do so.
[78] Mr Hughes had behaved in an unnecessarily aggressive manner towards the patron. He
had then behaved in a threatening manner both physically and verbally towards an employee
of Momentum. He had then been abusive to the Managing Director and repeatedly ignored his
request that he should leave the venue.
[79] The conduct of Mr Hughes on Friday, 1 July 2016 occurred outside of normal working
hours. However in the circumstances Mr Hughes’ conduct, about which Momentum
complains, did have a relevant connection with the employment relationship. It occurred at a
Momentum social club function attended by numerous employees of Momentum and
Momentum paid for the food and drink for most of the evening. Mr Hughes had behaved in an
aggressive manner towards a patron which had the potential to damage the reputation of
Momentum. In addition Mr Hughes had behaved in a threatening manner towards another
employee of Momentum; he had then abused the Managing Director and repeatedly ignored
his requests to leave. Mr Hughes conduct did seriously damage the relationship between him
and his employer Momentum and was contrary to Momentum’s interests. Consequently
Momentum were entitled to consider Mr Hughes’ misconduct at the social club function as a
reason for his dismissal.
[80] Mr Hughes’ conduct at work on the morning of 4 July 2016 was a further example of
him behaving aggressively towards his colleagues. When Mr Hughes attended for work on
this day, he had not received the message saying he had been stood down. Consequently I
accept he initially would have been confused by the staff not expecting him to be there and
would have been surprised or even shocked when Mr Di Camillo told him he had been stood
down. However having been told by his manager that he was stood down there was no reason
for his later aggressive behaviour towards Mr Di Camillo, whom Mr Hughes acknowledged
was a friend, nor for Mr Hughes to ignore his manager’s direction to leave the premises.
Similarly there was no excuse for Mr Hughes to hang up on Ms Wakeman, the General
Manager, who was speaking to him on the phone.
[2016] FWC 9072
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[81] Turning then to consider the specific matters set out in section 387 of the Act.
Valid reason
[82] The conduct of Mr Hughes at the social club function on Friday, 1 July 2016 was a
valid reason for his dismissal. Mr Hughes’ conduct in standing over the patron who was on
the ground in an unnecessarily aggressive manner was a valid reason for his dismissal. Mr
Hughes threatening behaviour towards another employee of Momentum was a valid reason
for his dismissal. Finally Mr Hughes abuse of the Managing Director and initial refusals to
leave when asked was also a valid reason for his dismissal.
[83] Separately Mr Hughes aggressive behaviour towards his manager Mr Di Camillo on
Monday, 4 July 2016, his failure to leave the premises when his manager told him to do so
and his rudely hanging up on Ms Wakeman, the General Manager, during their phone
conversation were valid reasons for his dismissal.
Notification of the reason
[84] Mr Hughes was notified orally on Monday 4 July 2016 of the investigation by
Momentum into his conduct on Friday, 1 July 2016. This is apparent from Mr Hughes’ email
to Mr Collins that day at 12.48 p.m. The reply email from Mr Collins that Monday at 6.29
p.m. confirmed the matters being investigated were the alleged altercation between Mr
Hughes and a patron on the previous Friday night and the following exchanges between Mr
Hughes and a number of staff post those events.
[85] At the meeting on Wednesday, 6 July 2016 a series of allegations regarding the events
of the Friday night, the events of Monday morning and of past aggression and warnings in
November 2014, were put to Mr Hughes. A copy of these were provided to him at that
meeting. These allegations were the reasons Momentum was considering whether they should
dismiss Mr Hughes.
Opportunity to respond
[86] A meeting was held with Mr Hughes and his solicitor on Wednesday, 6 July 2016
which lasted approximately 1 ½ hours at which Mr Hughes was given an opportunity to
respond to the reasons why his employer was considering dismissing him. Mr Hughes
provided a response at this meeting.
[87] The meeting concluded on the basis that Momentum would consider his responses and
meet again with him the following day Thursday, 7 July 2016 at 2.00 p.m. Noting that at the
first meeting Mr Hughes was in attendance with his solicitor there was further opportunity for
Mr Hughes or his solicitor to provide any addtional response to the allegations if they wished
to prior to the second meeting held on the Thursday.
[88] At the second meeting on Thursday, 7 July 2016 Mr Hughes was advised of
Momentum’s decision that he would be dismissed.
[2016] FWC 9072
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Support person
[89] Mr Hughes attended both meetings where his potential dismissal was discussed with
his solicitor. There was no unreasonable refusal to allow him a support person present.
Unsatisfactory performance
[90] The reasons for the dismissal did not relate to performance so warnings regarding this
are not relevant.
Size of the enterprise and dedicated human resource specialists or expertise
[91] The business is relatively small with approximately 33 employees and does not have
any dedicated human resource specialists or expertise in house. Notwithstanding this the
procedure followed by the Respondent in effecting the dismissal was appropriate.
Other matters
[92] Mr Hughes had been employed for a little less than two years at the time of his
dismissal.
[93] Relevant to Mr Hughes’ conduct at the social club function on Friday, 1 July 2016 is
that only ten days earlier Mr Collins had reminded staff including Mr Hughes that they were
expected to behave responsibly at this function.
[94] Mr Hughes does not have an unblemished employment record at Momentum. Indeed
in November 2014 he head-butted a colleague, again at an after work gathering. There were
no mitigating circumstances and at the time Mr Hughes did this he showed no remorse. Mr
Hughes was warned by Mr Collins and separately warned by Mr Di Camillo and later warned
by both Mr Collins and Mr Di Camillo together, that his aggressive behaviour which caused
injury to another employee was unacceptable. He was told he was being given a final warning
and any further instances of aggression would result in his dismissal.
Conclusion
[95] In the circumstances I am satisfied that the dismissal of Mr Hughes was neither harsh,
unjust, nor was it unreasonable. Mr Hughes was not unfairly dismissed. Accordingly his
application for an unfair dismissal remedy will be dismissed and an order to that effect will be
issued.
COMMISSIONER
[2016] FWC 9072
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Appearances:
G. James of Borrello Graham Lawyers for the Applicant.
I. Curlewis of Lavan Legal on behalf of the respondent.
Hearing details:
2016.
Perth:
November 2 and 3.
Printed by authority of the Commonwealth Government Printer
Price code C, PR588695
1 Transcript at PN231.
2 Exhibit A3, Loan Agreement.
3 Transcript at PN247-PN256.
4 Exhibit R4 at paragraphs 17 and 18, Exhibit R3 at paragraphs 10 and 11, Exhibit R2 at paragraphs 13 and 14, and Exhibit
R6 at paragraph 10.
5 Transcript at PN1374-PN1387.
6 Exhibit R6, Appendix C.
7 Ibid , Appendix B.
8 Transcript at PN722 and PN1302.
