1
Fair Work Act 2009
s.394—Unfair dismissal
Peter Heesom
v
Vegco Pty Ltd t/a One Harvest
(U2018/10765)
DEPUTY PRESIDENT COLMAN MELBOURNE, 14 MARCH 2019
Application for an unfair dismissal remedy – sexual harassment of co-workers – valid reason
– ‘absolutely final’ written warning – dismissal not unfair – application dismissed
[1] This decision concerns an application made by Mr Peter Heesom under s 394 of the
Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. From 12 October 2016 until
his dismissal on 9 October 2018, Mr Heesom was employed by Vegco Pty Ltd (Vegco) in its
‘fresh cuts’ packing department in Bairnsdale, Victoria. In September 2018, Vegco received a
number of complaints alleging that Mr Heesom had made inappropriate comments to co-
workers. After an investigation, Vegco concluded that Mr Heesom had asked a female co-
worker for a kiss, and that he had said to another co-worker that he wanted to ‘fuck’ his sister.
At the time, Mr Heesom was on an ‘absolute final written warning’. He was summarily
dismissed.
[2] Mr Heesom denies that he engaged in any of the conduct alleged against him. He says
that the company had no valid reason for his dismissal, and that it manufactured the
complaints against him. He submits that the termination of his employment was unfair and
seeks compensation.
[3] In the proceedings on 30 January 2019 Mr Heesom represented himself, with the
assistance of a support person, and gave evidence on his own behalf. The company was
represented by Mr Catlin of counsel, with the Commission’s permission. Vegco led evidence
from five witnesses, including two of the three employees to whom Mr Hessom was said to
have directed inappropriate remarks.
[4] Section 396 of the Act requires that I decide four matters before considering the merits
of Mr Heesom’s application. There is no dispute between the parties, and I am satisfied, of the
following matters. First, Mr Heesom’s application was made within the 21 day period
required by s 394(2) of the Act. Secondly, Mr Heesom was a person protected from unfair
dismissal, as he earned less than the high income threshold (s 382). Thirdly, the dismissal was
not a case of genuine redundancy. Fourthly, Vegco is not a small business for the purposes of
the Act, and therefore no question of compliance with the Small Business Fair Dismissal
Code arises.
[2019] FWC 1664
DECISION
E AUSTRALIA FairWork Commission
[2019] FWC 1664
2
Factual background
[5] Vegco is a producer and distributor of fresh vegetable products. On 29 September
2018 the company received a complaint about Mr Heesom from an employee, Mr Simon
Fletcher, in the form of a statutory declaration. In it, Mr Fletcher said that he had seen
Mr Heesom attempt to kiss Ms Elaine Kingston, another production worker (the first
allegation). He also said that he had heard Mr Heesom make lewd remarks about Ms Kingston
performing sex acts (the second allegation). In addition, Mr Fletcher said that Mr Heesom had
asked him if he had a good-looking girlfriend, and that when he had replied ‘yes’, Mr Heesom
said that he wanted to ‘tap that’ (the third allegation). Finally, Mr Fletcher said that
Mr Heesom had told Ms Kingston that he and another employee planned to catch up after
work and sit around in their underwear talking about their feelings (fourth allegation).
Mr Fletcher’s statutory declaration was attached as an exhibit to the witness statement of
Mr David Muir, the company’s production manager.1
[6] On 3 October 2018, Mr Muir and Ms Lisa James, the company’s performance and
culture coordinator, met with Mr Heesom and explained the complaints that had been made
about his behaviour towards Ms Kingston and Mr Fletcher. Mr Heesom denied the
allegations. He said that the complaints were a conspiracy to have him dismissed and
suggested that the employees concerned had been paid to make up complaints against him.
Mr Heesom also said that on 29 September 2018 he had been bullied by his manager,
Mr Jason Shingles, and that Mr Shingles had sworn at him. Mr Muir and Ms James decided
that Mr Heesom should be suspended on full pay while they investigated the complaints
against him, and Mr Heesom’s complaint against Mr Shingles.
[7] The same day, Mr Muir and Ms James met with Ms Kingston and asked her about Mr
Heesom’s behaviour towards her. She told them that on or around 29 September 2018 Mr
Heesom had asked her to kiss him. She said that she was shocked at this and that she had told
him to ‘fuck off’. She said that she did not report the comment because she was not overly
offended by it. She also told them that on another occasion Mr Heesom had told her that he
and another female employee were going to spend time together after work and that they were
going to ‘sit around in their underwear and talk about their feelings.’ She said that she had not
heard Mr Heesom make lewd comments about her performing sex acts.
[8] On 4 October 2018, Mr Muir met with Mr Shingles to discuss Mr Heesom’s bullying
allegation. Mr Muir asked Mr Shingles what had occurred on 29 September 2018. Mr
Shingles denied bullying or swearing at Mr Heesom. He later provided a note to Mr Muir
about his interaction with Mr Heesom on that day, stating that he had raised with Mr Heesom
concerns about his performance, including that he had left the line without advising the
packer, that boxes were falling off the end of the line, that stickers had not been placed on the
boxes, and that Mr Heesom was just standing around while he, Mr Shingles, cleaned up the
mess.
[9] Mr Muir was not able to meet with Mr Fletcher to discuss the third allegation,
concerning Mr Heesom’s remark about Mr Fletcher’s girlfriend, because Mr Fletcher had left
the company. Mr Muir said that he was therefore not able to reach a view about whether the
third allegation was substantiated.
1 Witness statement of David Muir, attachment DM 3
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[10] On 5 October 2018, the company received a further complaint from another employee
about Mr Heesom’s behaviour. Mr Andrew Stevens, an employee in the wash department,
told Mr Muir that in late September 2018 Mr Heesom had said to him that Mr Steven’s sister
was ‘really hot’ and that he wanted to ‘fuck her’ (the fifth allegation).
[11] On 7 October 2018 Mr Muir contacted Mr Heesom and arranged a further meeting to
discuss the allegations for the following morning however Mr Heesom did not attend. Mr
Muir rescheduled the meeting for the next day. Mr Heesom attended this meeting. Ms James
was also present. Mr Muir put to Mr Heesom the fifth allegation raised by Mr Stevens. Mr
Heesom denied it. Mr Muir again put to Mr Heesom that he had asked Ms Kingston for a kiss,
and that he had told Ms Kingston that he and another female employee would be sitting
around in their underwear after work. Mr Heesom denied this. Mr Muir asked Mr Heesom
why separate people would be making complaints against him and Mr Heesom replied that it
had all started after his altercation with Mr Shingles.
[12] Mr Muir then paused the meeting and considered the statements from the people he
had interviewed and Mr Heesom’s responses. He found Ms Kingston to have been open and
honest and believed her account of what Mr Heesom had said to her. He also concluded that
Mr Stevens had no reason to make up his allegation, and that this too was substantiated. He
found no evidence to support Mr Heesom’s allegation against Mr Shingles. Mr Muir
considered the conduct of Mr Heesom to be serious and in breach of the company’s code of
conduct, and that termination of employment was the appropriate disciplinary response.2 He
prepared a termination letter, and then asked Mr Heesom to re-join the meeting. Mr Muir
referred to the first, fourth and fifth allegations, and told Mr Heesom that these complaints
against him were both serious and substantiated. He told Mr Heesom that his employment
would end immediately and handed him the termination letter.
[13] Mr Heesom maintains that he did not do any of the things of which he was accused,
and that he was in fact bullied by Mr Shingles on 29 September 2018. He says that the
company did not properly investigate the complaints that were made against him, or his
complaint against Mr Shingles. He says that the complaints against him were made because
the company wanted to get rid of him and because the various witnesses were probably paid
to make the accusations.
Was Heesom’s dismissal unfair?
[14] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust
or unreasonable. In considering whether it is so satisfied, the Commission must take into
account the matters specified in s 387. I will address each of these matters in turn below.
Was there a valid reason for dismissal (s 387(a))?
[15] The Act directs consideration of whether there was a valid reason for the dismissal
related to the person’s capacity or conduct. A valid reason is one that is ‘sound, defensible
and well-founded.’3 The question the Commission must address is whether there was a valid
reason, in the sense both that it was a good or sufficient reason, and a substantiated reason.
2 Ibid, paragraphs 24-29
3 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
[2019] FWC 1664
4
[16] In cases relating to alleged misconduct, the Commission must make a finding on the
evidence provided as to whether, on the balance of probabilities, the conduct occurred.4 It is
not enough for an employer to establish that it had a reasonable belief that the termination was
for a valid reason. Where allegations of misconduct are made, the standard of proof in relation
to whether the alleged conduct occurred is the balance of probabilities. However, as the High
Court said in Briginshaw, the nature of the relevant issue necessarily affects the ‘process by
which reasonable satisfaction is attained’5 and where serious allegations are made, such
satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect
inferences’ or ‘circumstances pointing with a wavering finger to an affirmative conclusion’.6
[17] In its written submissions, the company contended that Mr Heesom had engaged in
unwanted conduct of a sexual nature towards three of his co-workers. It said that, as Mr
Fletcher had left the company, it relied only on the conduct of Mr Heesom towards Ms
Kingston and Mr Stevens (the first, fourth and fifth allegations) as constituting the valid
reason for dismissal. These are serious allegations and I approach them taking into account
the considerations in Briginshaw. Mr Heesom denies having done any of these things. There
is a direct conflict on the evidence which I must resolve by making factual findings.
[18] I make some preliminary observations about Mr Heesom’s conduct and evidence.
First, Mr Heesom’s behaviour during the proceedings was unacceptable. He repeatedly swore,
employing language at the foulest end of the profanity spectrum. I directed him several times
not to use such language, for reasons of decorum but also fairness to others in the courtroom
who might reasonably find such language both offensive and intimidating. I explained that he
could use bad language only when quoting things he or others had actually said. I also warned
Mr Heesom of the offence created by s 674 of the Act in respect of causing a disturbance in
the Commission. Other unacceptable behaviour during the proceeding included Mr Heesom
gesticulating aggressively, raising his voice, stating that he was angry, standing up and raising
his arms, smirking and scoffing at the statements of others. The fact that during a proceeding
a person uses foul language and is discourteous is not a reason to disbelieve his evidence.
However, it was evident that Mr Heesom has a propensity to swear, which makes the
allegations that he used bad language in comments to co-workers all the more believable.
[19] Secondly, I found Mr Heesom’s evidence to be unreliable and lacking in credit. I will
discuss this further below in relation to each of the key contested facts. However, I note in
particular that Mr Heesom claimed during the proceeding to be illiterate, or semi-illiterate.7
And when counsel for Vegco handed Mr Heesom documents to look at, he immediately
passed them on to his support person, Ms Stephenson, suggesting that he could not read them.
Yet at other times during the proceeding I clearly observed Mr Heesom reading without
difficulty. In particular, when I asked him to verify his witness statement, he read out the last
line of it fluently.8 And during Mr Stevens’ evidence, Mr Heesom asked to him read a
particular paragraph, at which point Mr Heesom himself also read briefly from the statement.9
Mr Muir gave evidence that Mr Heesom was required to be able to read for his daily duties,
4 Edwards v Giudice (1999) 94 FCR 561, at 564
5 Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at p 363
6 Ibid per Dixon J at p 362, and Rich J at p350
7 PN170 – 171 and PN 262
8 PN93
9 PN683
[2019] FWC 1664
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and I accept this evidence. In my assessment, Mr Heesom feigned or greatly exaggerated the
extent of any reading difficulties he may have.
[20] Thirdly, Mr Heesom raised for the first time during the proceedings several rejoinders
to points of evidence from company witnesses that one would have expected him to make
earlier, if they were true: for example, that he had never heard of Mr Fletcher, and that he had
been bullied by his manager ‘every day’. Mr Heesom was not an impressive witness and I
treat his evidence with caution.
Did Mr Heesom ask Ms Kingston to kiss him?
[21] Ms Kingston said that on or around 29 September 2018 Mr Heesom approached her
and asked her to kiss him. I accept her evidence. It was spontaneous, candid and believable.
She did not seek to hide the fact that she used bad language to rebuff him. She did not in my
view embellish or exaggerate. She was a credible witness.
[22] By contrast, Mr Heesom’s evidence about this incident was not at all credible. On the
one hand he maintained his denial of the allegation, but on the other hand sought to emphasise
that Ms Kingston had not taken it seriously. He asked Ms Kingston ‘you didn’t think anything
of it at the time, you thought it was a joke, you didn’t think anything of it, did you?’10 I
consider that Mr Heesom acknowledged that he did ask Ms Kingston for a kiss but sought to
pass it off as a joke. I find that Mr Heesom did ask Ms Kingston to kiss him.
Did Mr Heesom tell Ms Kingston that he was going to sit around in his underwear?
[23] Ms Kingston’s evidence was that Mr Heesom had told her that he and another female
employee were going to spend time together after work and that they were planning to sit
around in their underwear and talk about their feelings. I believe her. Ms Kingston showed no
animosity towards Mr Heesom. She did not complain to the company about his conduct.
Another employee, Mr Fletcher, complained about it in his statutory declaration. Ms Kingston
corroborated what Mr Fletcher said. Mr Heesom’s theory about why Ms Kingston would
confirm an allegation against him is that the company put her up to it and that she was paid. I
find this completely implausible. I find the fourth allegation substantiated.
Did Mr Heesom tell Mr Stevens that he wanted to ‘fuck’ his sister?
[24] Mr Stevens’ evidence was that in late September 2018, Mr Heesom said to him that he
had seen his little sister in court the previous day, that she was really ‘hot’ and he would like
to ‘fuck her’. Mr Heesom denied this. He said that he was not in court in September, but
rather in April, and that he could prove this from the court record. He did not produce any
proof. But even if Mr Heesom’s evidence about when he attended court is correct, that would
not disprove Mr Stevens’ allegation about what Mr Heesom said about his sister. The central
complaint was that Mr Heesom had said to Mr Stevens that he had seen his little sister and
that he wanted to ‘fuck her’. The question of when Mr Heesom had seen her and why is not of
any great significance, except to the extent that it might call into question the reliability of Mr
Stevens’ evidence. However, I found Mr Stevens to be a candid and sincere young man who
objected to Mr Heesom making crude remarks about his younger sister. I find the fifth
allegation against Mr Heesom to be substantiated.
10 PN731
[2019] FWC 1664
6
Mr Heesom’s contentions about the company’s evidence
[25] Mr Heesom’s theories about why Ms Kingston, Mr Stevens and Mr Fletcher would
make up allegations against him are entirely unconvincing. He suggested that the allegations
were some form of retaliation by the company to his complaint against Mr Shingles.
However, Mr Heesom raised the complaint about Mr Shingles only in the meeting on
3 October 2018, which the company had convened to discuss the allegations of harassment
against Mr Heesom. The company could not have orchestrated the allegations against Mr
Heesom as a response to his ‘bullying’ complaint, because it did not know about it until later.
In any event, the idea of three different people being cajoled into making false statements
(and perjury) to help the company retaliate against Mr Heesom is completely fanciful.
Further, Mr Heesom’s statement that the witnesses might have been paid for making false
accusations against him is scurrilous and without any foundation. Ms Kingston and Ms
Stevens both rejected the proposition and I believe them. Mr Heesom’s theory that the
company might have wanted to get rid of him is at least plausible on its face, given his poor
employment record. But there is no evidence of an ulterior motive on the part of the company.
There is instead ample evidence of Mr Heesom’s unacceptable behaviour.
[26] Mr Heesom said that there had previously been no complaints against him of a sexual
nature, and then several in a short time. He says this is improbable and suspicious. I reject this
argument. There is nothing unusual about a complaint concerning a particular matter leading
to an investigation that uncovers other matters. In any event, I am comfortably satisfied that
the three allegations I have identified above are substantiated.
[27] Mr Heesom sought to cast doubt on the truth of the complaints raised against him by
pointing out that none of them were made in writing. He said that it was a requirement under
the company’s internal procedures that any complaint be reduced to writing. However he did
not produce any document, such as a policy or internal email, that supported this contention.
Mr Muir denied that complaints could only be made in writing. I accept his evidence. It would
be irrational for an employer to preclude consideration of oral complaints, particularly about
sensitive matters such as sexual harassment.
Mr Heesom’s bullying complaint
[28] I do not consider that the bullying allegation levelled by Mr Heesom against Mr
Shingles has any substance. Mr Heesom only raised his complaint in response to the
allegations that had been levelled against him, and then said later in his evidence that he was
bullied every day.11 On the other hand, Mr Shingles gave a clear, detailed and cogent account
of his interaction with Mr Heesom on the day in question, convincingly explaining the
performance deficiencies that he had raised with Mr Heesom. I accept his evidence.
Did Mr Heesom breach the code of conduct?
[29] The company’s code of conduct states that employees must treat employees with
dignity, courtesy and respect and any failure to demonstrate these values may result in
disciplinary action, including termination of employment. It prohibits harassment, which is
defined as including offensive or demeaning statements, jokes, comments or innuendo.
11 PN279
[2019] FWC 1664
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Further, the company’s disciplinary policy identifies sexual harassment as a form of serious
misconduct justifying summary dismissal.12 The policy does not define sexual harassment.
Section 28A of the Sex Discrimination Act 1984 defines it as including ‘unwanted conduct of
a sexual nature in relation to the person harassed’, in circumstances in which ‘a reasonable
person, having regard to all the circumstances, would have anticipated the possibility that the
person harassed would be offended, humiliated or intimidated.’ This definition is compatible
with the ordinary meaning of the expression ‘sexual harassment’ appearing in the policy.
[30] In my view, the three substantiated allegations constituted harassment in breach of the
code and sexual harassment in breach of the policy. I make some brief observations on the
latter. Clearly, Mr Heesom’s conduct in asking Ms Kingston for a kiss was sexual harassment.
The fact that Ms Kingston said that she was not ‘overly’ offended does not point to a contrary
conclusion. She was offended, and shocked. She told him ‘to fuck off’. His conduct was
unwelcome, sexual in nature, and unacceptable. That Ms Kingston did not report the incident
does not diminish the seriousness of the conduct. She should not be put in the position where
she needs to contemplate whether to make a complaint. She deserves to come to work and be
treated with respect.
[31] I would point out that a person might engage in sexual harassment even if the victim
were not actually offended, humiliated or intimidated, provided the conduct was unwanted
and there was a reasonable possibility of such a reaction. The fact that the target of sexual
harassment may respond stoically does not mean that the conduct somehow ceases to be
harassment.
[32] I also consider that Mr Heesom’s conduct towards Mr Stevens constitutes sexual
harassment for the purposes of the code of conduct. He engaged in unwelcome conduct of a
sexual nature in relation to Mr Stevens by telling him that he wanted to ‘fuck’ Mr Stevens’
sister. Mr Stevens was offended and upset by this unacceptable statement. I would note that,
even if the comment were considered to fall outside the definition of sexual harassment, it is
still highly inappropriate and deserving of censure. The same can be said of the remark which
was the subject of the fourth allegation.
[33] Mr Heesom says that he was not aware of the code of conduct.13 I reject this evidence.
Attached to the company’s submissions is a record of the training completed by Mr Heesom,
which includes training specifically on the code of conduct.14
[34] Even if there had been no code of conduct or disciplinary policy, I consider that an
employee should not have to be told to treat his fellow co-workers civilly. The conduct which
I have found Mr Heesom to have engaged in would, even without the code of conduct and the
disciplinary policy, have constituted misconduct and a valid reason for dismissal. There is no
place for bawdy offensive alpha-male behaviour in the workplace.
[35] Finally, the validity of the reason for dismissal is underscored by the fact that Mr
Heesom received a ‘final written warning’ on 31 July 2017. It related to unsatisfactory work
performance rather than conduct, but stated that any further breaches of policies and
12 Statement of David Muir, attachment DM6: see section 2.7.7
13 PN187
14 Annexure 1 to the company’s outline of submissions
[2019] FWC 1664
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procedures or poor performance could lead to dismissal.15 Then on 8 March 2018 Mr Heesom
received an ‘absolute final written warning’ for abandoning a shift on one day and being over
thirty minutes late for the start of shift on another day. This too stated that any further
breaches of policy could lead to dismissal.16 The company had been very patient with Mr
Heesom. Ordinarily a final warning is the last reprieve. An ‘absolute final warning’ is
clemency of a higher order.
[36] I would note that, for the purposes of establishing a valid reason in the context of
s 387(a), it is not necessary to demonstrate misconduct sufficiently serious to justify summary
dismissal.17 The seriousness of the conduct and the proportionality of the decision to dismiss
Mr Heesom and to do so summarily are matters I shall consider further below in the context
of s 387(h).
[37] I conclude that there was clearly a valid reason for Mr Heesom’s dismissal. The three
allegations I have found substantiated amounted to misconduct. The validity of the reason for
dismissal is not diluted by the fact that I have not determined, in light of the fact that Mr
Fletcher did not give evidence, that the other two allegations are substantiated. Mr Heesom’s
conduct breached the company’s policies. It was in any event completely unacceptable.
Notification of reasons for dismissal, opportunity to respond (s 387(b) and (c))
[38] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission
must take into account whether an employee has been notified of the reasons for dismissal and
afforded an opportunity to respond to any reason related to conduct or performance.
[39] In order to tell against a finding that the dismissal was unfair, notification of the reason
for dismissal should occur before the decision to dismiss is made.18 The question of whether
an employee had an opportunity to respond to reasons relating to conduct or performance
should be understood in a common sense way; the focus of the consideration is whether the
employee is treated fairly, rather than on any formality.19
[40] At the final meeting on 9 October, Mr Heesom was notified of the reason for
dismissal. Mr Muir read out the termination letter, which said that the company had
concluded that on the balance of probabilities he had engaged in conversations with
employees of a sexual nature. Mr Heesom acknowledged during the proceedings that Mr Muir
identified the first, fourth and fifth allegations as reasons for dismissal.20 Further, Mr Muir
told Mr Heesom that the allegations against him had been substantiated.21 The valid reason for
dismissal was therefore communicated to Mr Heesom.
15 Statement of David Muir, attachment DM8
16 Ibid, attachment DM9
17 Sharp v BCS Infrastructure Support Pty Limited, [2015] FWCFB 1033 at [32]
18 Chubb Security Australia Pty Ltd v Thomas, Print S2679 at [41]
19 RMIT v Asher (2010) 194 IR 1 at 14-15
20 PN135 –144
21 Ibid at 31
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[41] Mr Heesom says that he did not receive a disciplinary letter that the company had
prepared in advance of the initial meeting on 3 October 2018 and there is some uncertainty
about whether he did in fact receive it at all.22 However, Mr Muir said that he read out the
content of the letter to Mr Heesom over the phone in advance of the meeting. And the
allegations were in any event discussed at that meeting. I am satisfied that the company put to
Mr Heesom the first, fourth and fifth allegations and that he was afforded a reasonable
opportunity to respond to them.
Support person (s 387(d))
[42] There is no suggestion that Vegco refused, unreasonably or otherwise, to allow Mr
Heesom to have a support person present to assist at any discussions relating to dismissal. Mr
Muir stated that he offered Mr Heesom the opportunity to have a support person present at the
two meetings. I accept this evidence. I note that the Act imposes no obligation on an employer
to offer an employee the opportunity to have a support person present at meetings.
Warning about unsatisfactory performance (s 387(e))
[43] If a dismissal relates to unsatisfactory performance, s 387 requires the Commission to
consider whether the person has been warned about the unsatisfactory performance prior to
dismissal. However, the valid reason for dismissal I have found to exist in the present matter
relate to conduct. In the circumstances it was not necessary for Mr Heesom to have been
warned about the conduct for which he was dismissed.
Size of the enterprise, dedicated human resources (section 387(f) and (g))
[44] The Commission is required to consider the degree to which the size of the employer’s
enterprise, and the degree to which the absence of dedicated human resources specialists or
expertise in the enterprise would be likely to impact on the procedures followed in effecting
the dismissal. In my view, these considerations do not carry weigh in the analysis of whether
the dismissal was unfair.
Any other matters the Commission considers relevant (s 387(h))
[45] In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the Commission is to take into account any other matters that it considers
relevant. The proportionality of the dismissal to the conduct that is the subject of a valid
reason is a matter to be considered in connection with s 387(h).
[46] As was noted by the Full Bench in Sharp v BCS Infrastructure Support Pty Limited,23
an assessment of the degree of seriousness of misconduct which has been found to constitute
a valid reason for dismissal for the purposes of s 387(a) is a relevant matter to be taken into
account under s 387(h).24 It may also be appropriate to conclude that the misconduct was of
such a nature as to have justified summary dismissal. This does not mean that it is necessary
22 PN430 - 433
23 [2015] FWCFB 1033
24 At [34]
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to consider that an employee’s conduct meets any particular postulated standard of serious
misconduct.25
[47] The conduct that I have found Mr Heesom to have engaged in was of sufficient gravity
to constitute serious misconduct. For the purposes of my consideration of s 387, I consider
that the company’s summary dismissal of Mr Heesom for this reason was not disproportionate
to the conduct in question.
[48] It is also relevant to note again, in the context of s 387(h), that Mr Heesom had
received a final written warning and an ‘absolute final written warning’. He had two years of
service. He did not have a good employment record. During the proceedings, Mr Heesom said
that he suffers from serious medical problems, but he produced no evidence to support this. I
also take into account that Mr Heesom has not offered any apology for the conduct that I have
found him to have engaged in. He does not acknowledge that he has done anything wrong.
Conclusion
[49] Taking into account all of the circumstances and the considerations in s 387, I consider
that the dismissal of Mr Heesom was not harsh, unjust or unreasonable and that accordingly
his dismissal was not unfair. Mr Heesom’s application for an unfair dismissal remedy is
therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr P. Heesom for himself
Mr J. Catlin of counsel for Vegco Pty Ltd
Hearing details:
2019.
Melbourne with video link to Bairnsdale:
31 January.
Printed by authority of the Commonwealth Government Printer
PR705828
25 Ibid
WORK COMMISSION THE SEAL OF THE
