1
Fair Work Act 2009
s.394—Unfair dismissal
Warren Power
v
Lyndons Pty Ltd T/A Lyndons
(U2022/11758)
DEPUTY PRESIDENT DOBSON BRISBANE, 5 MAY 2023
Application for an unfair dismissal remedy
[1] On 12 December 2022, Mr Warren Power (Applicant) made an application to the Fair
Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a
remedy, alleging that he had been unfairly dismissed from his employment with Lyndons Pty
Ltd (Respondent). The Applicant seeks reinstatement and/or financial compensation.
[2] The matter was listed for conciliation with a staff conciliator on 19 January 2023
however was unable to be resolved.
[3] On 20 January 2023, the matter was initially allocated to the chambers of Commissioner
Spencer, who issued directions for the filing of material. The Commissioner conducted a
conference with the parties on 3 February 2023 and amended directions were issued on 6
February 2023 which listed the matter for hearing on 27 and 28 March 2023. On 22 March 2023
the matter was reallocated to my chambers. Upon reallocation, the directions put in place by
Commissioner Spencer remained in place as did the listing for hearing on 27 and 28 March
2023.
When can the Commission order a remedy for unfair dismissal?
[4] Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal
at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[5] Both limbs must be satisfied. I am therefore required to consider whether the Applicant
was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the
Applicant was so protected, whether the Applicant has been unfairly dismissed.
[2023] FWC 1060
DECISION
AUSTRALIA FairWork Commission
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When is a person protected from unfair dismissal?
[6] Section 382 of the FW Act provides that a person is protected from unfair dismissal if,
at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or
her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if
any) worked out in relation to the person in accordance with the regulations,
is less than the high income threshold.
When has a person been unfairly dismissed?
[7] Section 385 of the FW Act provides that a person has been unfairly dismissed if the
Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Background
[8] The uncontested factual background to the matter is as follows:
• Mr Power commenced employment with the Respondent on 13 September 2021 and
was engaged as a Sales Representative at the Respondent’s Cairns office prior to his
dismissal on 25 November 2023.
• The reason given by the Respondent for the termination of the Applicant’s
employment was serious misconduct involving his engagement in bullying and
sexual harassment.
The hearing
[9] There being contested facts involved, the Commission is obliged by s.397 of the FW
Act to conduct a conference or hold a hearing.
[10] After taking into account the views of the Applicant and the Respondent and whether a
hearing would be the most effective and efficient way to resolve the matter, the matter was
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listed for a hearing by Commissioner Spencer pursuant to s.399 of the FW Act. Just prior to the
listing date, the matter was allocated to me. So as not to cause any undue delay, the listing dates
remained.
Permission to appear
[11] Both the Applicant and the Respondent sought to be represented before the Commission
by a paid agent and a lawyer, respectively.
[12] Relevantly, section 596(1) of the FW Act provides that a party may be represented in a
matter before the Commission by a lawyer or paid agent only with the permission of the
Commission.
[13] Section 596(2) provides that the Commission may grant permission for a person to be
represented by a lawyer or paid agent in a matter before the Commission only if:
(a) it would enable the matter to be deal with more efficiently, taking into account the
complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is
unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account
fairness between the person and other persons in the same matter.
[14] The decision to grant permission is not merely a procedural step but one which requires
consideration in accordance with s.596 of the FW Act.1 The decision to grant permission is a
two-step process. First it must be determined if one of the requirements in s.596(2) have been
met. Secondly, if the requirement has been met, it is a discretionary decision as to whether
permission is granted.2
[15] Commissioner Spencer considered the representations given by the parties during a
conference and granted leave on the basis that:
• allowing the Applicant to be represented by a paid agent would enable the matter to
be dealt with more efficiently, taking into account the complexity of the matter;
• it would be unfair not to allow the Applicant to be represented because the Applicant
is unable to represent himself effectively, particularly given he was a witness in the
proceedings; and
• the Applicant had no objection to the Respondent being represented by a lawyer.
• allowing the Respondent to be represented by a lawyer would enable the matter to be
dealt with more efficiently, taking into account the complexity of the matter;
• it would be unfair not to allow the Respondent to be represented because the
Respondent is unable to represent itself effectively; and
• the Applicant had no objection to the Respondent being represented by a lawyer.
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[16] Accordingly, at the hearing on 27 and 28 March 2023, the Applicant was represented
by Mr Alan Dircks from Just Relations and the Respondent was represented by Mr Troy Spence
of Counsel instructed by Mr Rohan Tate of Optimum Legal.
Witnesses
[17] The Applicant gave evidence on his own behalf.
[18] The following witnesses gave evidence on behalf of the Respondent:
• Mr Ian Chopping
• Mr Stephen Cushion
• Mr Levi Lux
• Mr Troy Mitchell and
• Ms Shanelle Ord.
Submissions
[19] The Applicant filed submissions in the Commission on 10 February 2023. The
Respondent filed submissions in the Commission on 7 March 2023, with the Applicant’s
material in reply filed on 14 March 2023.
[20] Final written submissions were filed by the Applicant on 14 April 2023. Final written
submissions were filed by the Respondent on 24 April 2023.
Has the Applicant been dismissed?
[21] A threshold issue to determine is whether the Applicant has been dismissed from their
employment.
[22] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the
Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because
of conduct, or a course of conduct, engaged in by the Respondent.
[23] Section 386(2) of the FW Act sets out circumstances where an employee has not been
dismissed, none of which are presently relevant.
[24] There was no dispute and I find that the Applicant’s employment with the Respondent
terminated at the initiative of the Respondent on 25 November 2023.
[25] I am therefore satisfied that the Applicant has been dismissed within the meaning of
s.385 of the FW Act.
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Initial matters
[26] Under section 396 of the FW Act, the Commission is obliged to decide the following
matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
[27] Section 394(2) requires an application to be made within 21 days after the dismissal
took effect.
[28] It is not disputed and I find that the Applicant was dismissed from his employment on
25 November 2022 and made the application on 12 December 2022. I am therefore satisfied
that the application was made within the period required in subsection 394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
[29] I have set out above when a person is protected from unfair dismissal.
Minimum employment period
[30] It was not in dispute and I find that the Respondent is not a small business employer,
having 15 or more employees at the relevant time.
[31] It was not in dispute and I find that the Applicant was an employee, who commenced
their employment with the Respondent on 13 September 2021 and was dismissed on 25
November 2022, a period in excess of 6 months.
[32] It was not in dispute and I find that the Applicant was an employee.
[33] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee
who had completed a period of employment with the Respondent of at least the minimum
employment period.
Award Coverage
[34] It was not in dispute and I find that, at the time of dismissal, the Applicant was covered
by an award, being the General Retail Industry Award 2022.
[35] I am therefore satisfied that, at the time of dismissal, the Applicant was a person
protected from unfair dismissal.
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Was the dismissal consistent with the Small Business Fair Dismissal Code?
[36] Section 388 of the FW Act provides that a person’s dismissal was consistent with the
Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given
notice of the dismissal (whichever happened first), the person’s employer was a
small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to
the dismissal.
[37] As mentioned above, I find that the Respondent was not a small business employer
within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees
(including casual employees employed on a regular and systematic basis).
[38] I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as
the Respondent is not a small business employer within the meaning of the FW Act.
Was the dismissal a case of genuine redundancy?
[39] Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
(a) the employer no longer required the person’s job to be performed by anyone because
of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise
agreement that applied to the employment to consult about the redundancy.
[40] It was not in dispute and I find that the Applicant’s dismissal was not due to the
Respondent no longer requiring the Applicant’s job to be performed by anyone because of
changes in the operational requirements of the Respondent’s enterprise.
[41] I am therefore satisfied that the dismissal was not a case of genuine redundancy.
[42] Having considered each of the initial matters, I am required to consider the merits of the
Applicant’s application.
Was the dismissal harsh, unjust or unreasonable?
[43] Section 387 of the FW Act provides that, in considering whether it is satisfied that a
dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(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
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(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.
[44] I am required to consider each of these criteria, to the extent they are relevant to the
factual circumstances before me.3
[45] I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[46] In order to be a valid reason, the reason for the dismissal should be “sound, defensible
or well founded”4 and should not be “capricious, fanciful, spiteful or prejudiced.”5 However,
the Commission will not stand in the shoes of the employer and determine what the Commission
would do if it was in the position of the employer.6 However, I “must consider the entire factual
matrix in determining whether an employee’s termination was for a valid reason.”7
[47] The Respondent submitted that there was a valid reason related to the Applicant’s
conduct. For there to be a valid reason related to the Applicant’s conduct, I must find that the
conduct occurred and justified termination.8 “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.”9
Submissions
[48] The Applicant submitted that there was no valid reason for the dismissal related to the
Applicant’s capacity or conduct because he did not engage in the conduct alleged and that the
Respondent’s response to the alleged conduct was disproportionate. The Applicant submitted
that the reason given by the Respondent did not have sound, defensible or well-founded reasons
to terminate the Applicant’s employment.10
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[49] The Applicant stated that while the allegations are refuted, that if they were accepted,
the termination of the Applicant’s employment was disproportionate. The Applicant drew the
Commission to the observations of Lord Maugham in that ‘in such cases, one must apply the
standards of men, and not those of angels’11. The Applicant submitted that in the event that the
conduct did occur, that any phrase should be considered figurative. The Applicant further
submitted that swearing in the workplace was commonplace and tolerated and that the
Respondent had a range of options in accordance with their policies to attend to any alleged
misconduct prior to resorting to termination.
[50] The Respondent submitted that there was a valid reason for the dismissal related to the
Applicant’s capacity or conduct because the witness evidence garnered during an investigation
substantiated the allegation that the Applicant had engaged in the behavior and that the behavior
amounted to serious misconduct involving sexual harassment. The Respondent submitted that
the words used by the Applicant amounted to sexual harassment. The Respondent made
reference to Hengst v Town and Country Community Options Inc12 and drew the similarities
between a phrase being said in the workplace being a valid reason for dismissal.
Evidence
[51] The Applicant in his witness statement denied engaging in the alleged conduct – namely
that he had said words to the effect of “I’ll fuck you in the arse” or “suck my dick” towards any
employee of the Respondent on or around the 23rd of August 2022 (The Words).
[52] The Applicant stated that he had tried to make a complaint about his manager Mr Brett
Robin and that the Respondent had not properly investigated his allegations.
[53] The Respondent presented witness statements from Mr Levi Lux, Mr Troy Mitchell, and
Ms Shanelle Ord stating that they had heard Mr Power using The Words and further provided
a copy of an independent investigation conducted by Mr Stephen Cushion that confirmed the
witnesses had heard the Applicant use The Words towards Mr Mitchell on or around the 23rd
of August 2022.
Warren Power (the Applicant)
[54] The Applicant provided a witness statement on his own behalf. The Applicant denied
using the words “I’ll fuck you in the arse/suck my dick” and gave evidence that swearing was
common in the workplace. The Applicant stated that he had previously been issued a formal
warning in relation to templates that he had been required to use in the course of his work and
felt that he had been unfairly targeted following an incident between himself and his manager,
Mr Brett Robin. The Applicant stated that he told some colleagues about his intention to lodge
a formal complaint about Mr Robin and did so on 4 July 2022.
[55] The Applicant stated that the Employer had informed him on 28 July that the
investigation regarding his complaint was complete and that ‘appropriate action’ had been
taken. The Applicant was on a period of medical leave from 27 July until 8 August 2022. The
Applicant stated that upon his return he was assigned a new task to mentor staff which was
contrary to his medical certificate which stated he should not be given new tasks. The Applicant
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was then placed on a performance improvement plan on 11 August. The Applicant went on
another period of leave returning on 22 August 2022. The Respondent provided The Applicant
with a signed declaration indicating the Applicant had read and understood the Bullying and
Harassment Policy at Lyndon’s. The representative for the Applicant submitted and Mr Power
gave evidence that he had simply signed this without actually sighting the policy.
Ian Chopping
[56] Mr Chopping gave evidence that the Applicant had made a complaint against his direct
Manager Mr Robin at a conference on 13 June 2022. Mr Chopping gave evidence that there
were performance issues with the Applicant and that these were raised with the Applicant on
30 June 2022. Briefly, this included the Applicant refusing to use a new form/template he was
directed to use and refused initially to use. This resulted in the Applicant being issued a written
warning.
[57] Mr Chopping gave evidence that the Applicant made the complaint about Mr Robin on
Monday 4 July after receiving the formal written warning. The complaint was investigated and
found to be unsubstantiated. Mr Chopping gave further evidence that there were ongoing
multiple problems with the Applicant’s performance. The Commission was played copies of
two disciplinary meetings with the Applicant (the Recordings).
[58] Under cross examination Mr Chopping’s evidence was credible and consistent.
Levi Lux
[59] Mr Lux gave evidence as part of the material submitted by the Respondent. Mr Lux was
at the relevant times, employed in Counter Sales at the Lyndon’s Cairns Branch and remained
in that role at the time of the hearing.
[60] Mr Lux stated that he found the Applicant to be ‘very aggressive’ and that he would
often be asked by the Applicant to perform tasks that the Applicant could have done himself.
Mr Lux stated that the Applicant would ask Mr Lux to perform tasks that were not within his
position description and that on one occasion when Mr Lux informed the Applicant that he
wasn’t available to complete a task for him, that the Applicant had used words to the effect of
“I will take you outside”. Mr Lux stated that he had interpreted this to mean that the Applicant
was threatening to assault him. Mr Lux stated that he hadn’t made a complaint about Mr Power
because he was “used to dealing with bullies like (the Applicant)”.
[61] Mr Lux stated that in August 2022 (and was unable to recall the specific date) that he
had heard the Applicant in a conversation with Mr Mitchell and that the Applicant had said “I
will fuck you up the arse” and “suck my dick”.13 Mr Lux stated that the language was
‘memorable’ given it was particularly offensive. Mr Lux could not recall specifically what date
the conversation occurred but stated that it had happened approximately 2 weeks prior to an
altercation between Mr Power and Mr Mitchell on 23 August 2023. Mr Lux also gave evidence
that he had witnessed Mr Power giving Mr Mitchell bear hugs although he was unclear as to
when this had occurred.14
Troy Mitchell
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[62] Mr Mitchell gave evidence on behalf of the Respondent that he had been bullied and
harassed by the Applicant. Mr Mitchell stated that the Applicant regularly said inappropriate
things to him under the guise of humor. Mr Mitchell stated that on one occasion, but he could
not specify when, that the Applicant, stated words to the effect of “come on then, get under the
table, suck me off” whilst the Applicant gestured to his groin.15 Mr Mitchell stated that he found
comments such as this to be inappropriate but did not report them.
[63] Mr Mitchell stated that in the month of August 2022, the Applicant said to him, words
to the effect of: “suck my dick/I will fuck you up the arse” and that Mr Mitchell found the words
offensive and inappropriate. Mr Mitchell also stated that on another occasion of which he could
not provide the exact time and date, that the Applicant came up behind him and ‘bear hugged’
him and that he had to struggle to get loose.16 This evidence was consistent with the evidence
of Mr Lux.17
[64] Mr Mitchell stated that on 23 August 2022, he and the Applicant had a heated argument
and that combined with the previous conduct from the Applicant, he felt he had to resign. Mr
Mitchell resigned and two days later on 25 August 2022 he filed a written complaint about Mr
Power’s conduct towards him.18 A copy of Mr Mitchell’s complaint is at page 178 of the Digital
Court Book.
[65] It was the evidence of Mr Mitchell that the conduct of the Applicant in this incident was
not the first of the Applicant’s conduct of this nature and that he had previous form for similar
conduct.19
Shanelle Ord
[66] Ms Ord’s evidence gave a clear recollection of The Words she heard used by the
Applicant to Mr Mitchell. Mr Ord confirmed recounting her evidence to Mr Cushion. She
openly admitted telling the Applicant she did not give that evidence because she was scared to
do so but she stood firmly by her convictions that The Words were indeed said by Mr Power
on or around the 23rd of August 2022.
Stephen Cushion
[67] Mr Cushion gave evidence of the external investigation he conducted in regard to the
allegations made by Mr Mitchell. He gave evidence from each of the witnesses and his report
was concise, factual and to the point. I found it credible and that the conclusions made were
open to Mr Cushion to be drawn, based on the evidence before him. Under cross examination I
was satisfied of Mr Cushion’s credit and findings, albeit brief.
Findings
[68] Mr Power’s evidence was at odds with three witnesses who I found to be credible,
considered and who were in my view, mostly all distressed and affected by the gravity of the
alleged conduct of Mr Power. Overall, I found Mr Power’s evidence to be self-serving and I
am not satisfied of his credit.
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[69] Further, I am not satisfied that there was any link between Mr Power’s complaint about
Mr Robin and his own conduct towards Mr Mitchell. The Applicant did not present any credible
nexus between the two issues. There were no allegations of collusion between the parties and
therefore there can be no basis to blame Mr Power’s unacceptable conduct towards Mr Mitchell
as having any connection to any prior disputes he may have had with Mr Robin. Furthermore,
the timeline in respect of the Applicant’s allegations, disciplinary action taken by the
Respondent, the timing of the Applicant’s complaint and its eventual findings also do no
support a nexus between them.
[70] Mr Lux, whilst being somewhat confused about the order in which certain events had
taken place, was clear that he had witnessed unwelcome bear hugging from Mr Power directed
at Mr Mitchell and that he had heard Mr Power say The Words to Mr Mitchell and in this respect
I disagree with the submissions of the Respondent at P36.20 I accept that Mr Lux’s evidence
was his recollection of what he had heard Mr Power say to Mr Mitchell and that this was
consistent with the interview statement he also gave to Mr Cushion.21
[71] Mr Mitchell’s evidence was sincere, contained sufficient particulars and had caused him
a great deal of discomfort. Further, his evidence was that he had heard Mr Power say The Words
to him, that they were unwelcome, and it was my view that his allegations were not made
lightly. I accept Mr Mitchells evidence of what had occurred.
[72] I am satisfied that Mr Power attempted to apply pressure to Ms Ord not to provide
evidence of what she had heard, however, despite this, Ms Ord’s evidence was clear that she
had heard Mr Power say The Words to Mr Mitchell. In this respect I disagree with the
Respondents submissions at P36.22 It was Ms Ord’s evidence, which I accept, that she had to
instruct solicitors to ask Mr Power to cease and desist contacting her to interfere with her
evidence. This in and of itself, is a serious matter. Not only was it a failure to follow a reasonable
and lawful directive of the Respondent to keep the matter confidential but it may also be a
breach of other laws such as the victimization provisions of sexual harassment legislation and
criminal laws in respect of interfering with witnesses.23 Whilst I accept that the principles of
Briginshaw v Briginshaw24 are relevant to these latter issues (specifically the potential
victimization and criminal code breaches), in respect of the allegations that the Applicant used
The Words towards Mr Mitchell, whilst the witnesses were confused about when they occurred,
partly as a result of confusion caused in cross examination, which is evidenced in the
submissions of the Respondent, the witnesses were all very clear that The Words were used,
that they were used by the Applicant and that they were directed specifically at Mr Mitchell.
The Applicant completely denies using The Words at all even in the face of this evidence. The
Words used fall clearly within the definition of sexual harassment as defined in the Fair Work
Regulations25 and the standard of proof in this respect has in my view been met.
[73] I have considered the Applicant’s failure to call Mr Brown as a witness in light of its
allegations that the Applicant’s position was advertised prior to him being terminated and I do
not find a negative inference in this decision. I accept the evidence of Mr Chopping that the
Respondent was at one point looking for two sales staff. Circumstances surrounding staffing
shortages are well known at this present time and there was no credible nexus drawn by the
Applicant between the additional advertisement and his own termination. Further I don’t accept
that the employer requiring the tools of trade to be returned during the suspension and
investigation process had any bearing on the outcome of that process. An Independent
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investigation was conducted by Mr Cushion and that investigation was confined to the very
serious issues of conduct alleged including the use of The Words and the physical “bear
hugging”. The Conduct of the Applicant, once substantiated, was so egregious that it could not
be ignored.
[74] Whilst there does appear to be some confusion amongst come of the witnesses about
when things were said there was no doubt that they were said and that they were said on or
around the 23rd of August 2022. Further, there is no doubt that the Applicant denies they were
said at all, or at any time whatsoever. I don’t find this complete denial credible in light of the
evidence from the multiple witnesses.
[75] It is my view that The Recordings from earlier disciplinary action with the Applicant,
demonstrated a dysfunctional, aggressive, disrespectful and untenable relationship from the
Applicant towards his managers.
[76] The witness evidence of the witnesses in these present allegations from Mr Lux and Mr
Mitchell were believable and measured. These witnesses both made appropriate concessions
where it was relevant to do so.
[77] The evidence of the Applicant was argumentative, contradictory, demonstrated a lack
of insight into his own conduct and in all the circumstances lacked credibility.
[78] The evidence of Ms Ord was that she told the Applicant what he wanted to hear about
her evidence because she didn’t want to engage in any disagreement with him. For that reason,
her evidence to the Applicant that she didn’t make the admissions she made in her statements
was only said to appease the Applicant and is not an accurate reflection of what she witnessed.
Ms Ord confirmed that she did witness the Applicant speak to Mr Mitchell in the manner Mr
Mitchell alleged and that she heard the Applicant use The Words to Mr Mitchell. On this basis
it was reasonable for the Respondent to conclude in my view that the Applicant had engaged in
sexual harassment conduct towards Mr Mitchell.
[79] Having regard to the matters I have referred to above, I find that there was a valid reason
for the dismissal related to the Applicant’s conduct and that was his use of The Words to Mr
Mitchell on or around the 23rd of August 2022.
Was the Applicant notified of the valid reason?
[80] Proper consideration of s.387(b) requires a finding to be made as to whether the
applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid
reason found to exist under s.387(a).26
[81] Notification of a valid reason for termination must be given to an employee protected
from unfair dismissal before the decision is made to terminate their employment,27 and in
explicit28 and plain and clear terms.29
Submissions
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[82] The Applicant submitted that he was notified of the valid reason on the basis of
correspondence to him on 22 November 2022 in which he was advised of the allegations, that
an independent investigation had been conducted and that those allegations were substantiated.
The Applicant was suspended on full pay, advised that he had a final warning on file and he
was provided an opportunity to show cause why further disciplinary action including
termination should not be taken against him. The Applicant responded that he refuted the
allegations and alleged that Ms Ord had denied giving evidence in support of the allegations
and that Mr Lux was not in the office at the time. The Applicant further went on to discredit
Mr Lux and Mr Mitchell.
[83] The Respondent submitted that the Applicant was notified of the valid reason on the
basis that he was given the findings of the investigation on 22 November, reminded of the
previous final warning and provided an opportunity to show cause why he should not be further
disciplined or even terminated.
Evidence
[84] The letters that were the subject of the submissions were tended as evidence in respect
of annexures to the various statements of the party. Audio recordings (The Recordings) of the
Applicant’s previous discussions with his managers were played in evidence and witnesses
were cross examined.
Findings
[85] Having regard to the matters referred to above, I find that the Applicant was notified of
the reason for his dismissal prior to the decision to dismiss being made, in explicit, plain and
clear terms. This is evidenced in the letter to Mr Power of 25 November 2022.30
[86] In all the circumstances, I find that the Applicant was notified of the reason for his
dismissal.
Was the Applicant given an opportunity to respond to any valid reason related to their
capacity or conduct?
[87] An employee protected from unfair dismissal should be provided with an opportunity
to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity
to respond is to be provided before a decision is taken to terminate the employee’s
employment.31
[88] The opportunity to respond does not require formality and this factor is to be applied in
a common-sense way to ensure the employee is treated fairly.32 Where the employee is aware
of the precise nature of the employer’s concern about his or her conduct or performance and
has a full opportunity to respond to this concern, this is enough to satisfy the requirements.33
Submissions
[89] The Applicant submitted that he was given an opportunity to respond to any valid reason
because the allegations were put to him for his response in writing on 22 November 202234 to
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which he responded. He was given a further opportunity on 25 November 2022 to show cause
as to why further disciplinary action including termination should not be taken and the breach
of the Company’s policies of Bullying and Harassment, Lyndon’s Code of Conduct and Sexual
Harassment taken by the Applicant.
[90] The Respondent submitted that the Applicant did have an opportunity to respond to any
valid reason related to the Applicant’s capacity or conduct because of the documented evidence
supporting the same in the DCB at pages 65-67.
Findings
[91] I find that the Applicant was given adequate opportunities to respond to the valid reason
and that this was uncontested.
[92] In all the circumstances, I find that the Applicant was given an opportunity to respond
to the reason for his dismissal prior to the decision to dismiss being made.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person
present to assist at discussions relating to the dismissal?
[93] Where an employee protected from unfair dismissal has requested a support person be
present to assist in discussions relating to the dismissal, an employer should not unreasonably
refuse that person being present.
[94] There is no positive obligation on an employer to offer an employee the opportunity to
have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person
present in a discussion relating to dismissal and the employer unreasonably refuses. It does not
impose a positive obligation on employers to offer an employee the opportunity to have a support
person present when they are considering dismissing them.”35
Submissions
[95] The Applicant submitted that the Respondent did not offer the Applicant to have a
support person present, however as I have already said, there is no positive obligation on the
Respondent in this respect and therefore I consider this to be a neutral issue.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[96] Whilst the Respondent submitted that the Applicant had previously been provided a
final warning for performance related issues and I note that the Applicant disputes that previous
warning, this dismissal was not related to unsatisfactory performance, but rather, serious
misconduct, therefore this factor is not relevant to the present circumstances.
[2023] FWC 1060
15
To what degree would the size of the Respondent’s enterprise be likely to impact on the
procedures followed in effecting the dismissal?
Submissions
[97] The Respondent made no further submissions on this point other than it provided a fair
go, investigated the allegations and followed an appropriate process for the Applicant to show
cause in respect of that process.
[98] The Applicant submitted that the manner in which the Respondent effected the dismissal
was harsh and that the Applicant was not provided a fair go however the Applicant failed to
provide any evidence of this.
[99] Neither party submitted that the size of the Respondent’s enterprise was likely to impact
on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s
enterprise had no such impact.
Findings
[100] I find that having regard to the matters above, I find that the size of the Respondent’s
enterprise was not likely to impact on the procedures followed in effecting the dismissal.
To what degree would the absence of dedicated human resource management specialists or
expertise in the Respondent’s enterprise be likely to impact on the procedures followed in
effecting the dismissal?
Submissions
[101] Both parties made similar submissions without any further evidence on this issue as they
did to the previous issue (s387(f)).
Findings
[102] I find that whilst the Respondent lacked dedicated human resource specialists and
expertise they were able to avail themselves of adequate assistance and I find it had no unfair
or unreasonable impact on the procedures followed in effecting the dismissal.
What other matters are relevant?
[103] Section 387(h) requires the Commission to take into account any other matters that the
Commission considers relevant.
Submissions
[104] The Applicant submitted that the following other matters are relevant to the
Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable was
that he had never received a copy of the Employee Handbook which contained the Respondent’s
code of conduct and Anti-Bullying policy.
[2023] FWC 1060
16
[105] The Respondent submitted that these documents were available to the Applicant and
that the Applicant had signed a declaration that he had read, understood and accepted them on
13 September 2021.36
[106] The representative for the Applicant submitted and Mr Power gave evidence that he had
simply signed the Employee Handbook without actually sighting it. I don’t accept this. Mr
Power is an adult and there was no evidence put to me that he lacked capacity to understand
what he was signing. It is his responsibility to ensure he has read and understood a declaration
before he signs it. I don’t accept that a failure on his part to follow that up before signing it
gives him a free pass to say he isn’t bound by the policy he has declared an understanding and
acceptance of.
[107] Further, whilst swearing in the workplace may or may not be commonplace The Words
used by Mr Power went far beyond simply swearing in the workplace and fall squarely within
the definition of Serious Misconduct as prescribed by the Fair Work Regulations. Such conduct
in the workplace is simply intolerable, the evidence was clear that it was unwelcome and such
conduct opens the Respondent to a failure of its duty to provide a safe place of work for its
employees.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or
unreasonable?
[108] I have made findings in relation to each matter specified in section 387 as relevant.
[109] I must consider and give due weight to each as a fundamental element in determining
whether the termination was harsh, unjust or unreasonable.37
[110] Having considered each of the matters specified in section 387 of the FW Act, I am
satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable because the
conduct of the Applicant was of such serious gravity and in the face of credible evidence to the
contrary, that the Applicant’s failure to admit his own actions left the Respondent with no
confidence that such conduct would not reoccur. This created an untenable situation
inconsistent with the continuation of the employment relationship or contract.
Conclusion
[111] I am therefore satisfied that the Applicant was not unfairly dismissed within the meaning
of section 385 of the FW Act.
[112] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not
satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW
Act. The Applicant’s application is therefore dismissed and I order as such.
[2023] FWC 1060
17
DEPUTY PRESIDENT
Appearances:
Mr A Dircks for the Applicant.
Mr T.A Spence of Counsel instructed by Optimum Legal for the Respondent.
Hearing details:
Brisbane, 27 – 28 March 2023.
Final written submissions:
Applicant 14 April 2023.
Respondent 24 April 2023.
Printed by authority of the Commonwealth Government Printer
PR761644
1 Warrell v Fair Work Australia [2013] FCA 291.
2 Ibid.
3 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP,
Lacy SDP, Simmonds C, 21 March 2002), [69].
4 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
5 Ibid.
6 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
7 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185,
[46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.
8 Edwards v Justice Giudice [1999] FCA 1836, [7].
9 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
10 Selvachandran v Petron Plastics Pty Ltd [1995] 62 IR 371 at [373]
11 Jupiter General Insurance Co Ltd v Shroff [1937] 3 at [73] and [74]
12 Hengst v Town and Country Community Options Inc (1995) 185 CLR 411
13 Transcript Tuesday 28 March 2023, PN1287.
AIR WORT WORK COM boon + AUSTRALIA ISSION THE SEAL OFFLINE
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb7498.htm
https://www.fwc.gov.au/documents/alldocuments/pr915674.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915674.htm
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/Walton_v_Mermaid_Dry_Cleaners.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb4185.htm
[2023] FWC 1060
18
14 Transcript Tuesday 28 March 2023, PN1223 and PN1280.
15 Transcript Tuesday 28 March 2023, PN1592.
16 Ibid PN1561.
17 Transcript Tuesday 28 March 2023, PN1223 and PN1280.
18 P25, Digital Court Book.
19 Transcript Tuesday 28 March 2023, PN1592.
20 PN1275 see also p193-194 of the DCB.
21 DCB SC5 p193-194.
22Statement of Mr Ord Paragraph 29, DCB p 309, PN1700, PN1716-1718.
23 Criminal Code (Qld) S119B(b).
24 (1938) 60 CLR 336; cited in Barber v Commonwealth (2011) 212 IR 1, 33 [93].
25 Fair Work Regulations 2009 (Cth) Reg 1.07(3)(a)(iv).
26 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
27 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
28 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
29 Ibid.
30 DCB P68
31 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton
SDP, Cribb C, 11 May 2000), [75].
32 RMIT v Asher (2010) 194 IR 1, 14-15.
33 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
34 DCB p 63-64.
35 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
36 DCB P208.
37 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon
Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice
[1999] FCA 1836, [6]–[7].
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb6429.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb533.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915674.htm
