DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Philip Parker
v
Garry Crick’s (Nambour) Pty Ltd as The Trustee for CRICK UNIT TRUST T/A Cricks Volkswagen
(U2016/12058)

Application for relief from unfair dismissal – jurisdictional objection – termination at the initiative of the employer – valid reason for dismissal.

INTRODUCTION

[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) was made by Mr Philip Parker (the Applicant) alleging that the termination of his employment from Garry Crick’s (Nambour) Pty Ltd as The Trustee for CRICK UNIT TRUST T/A Cricks Volkswagen (the Respondent) was harsh, unjust and or unreasonable.

[2] The matter was initially allocated to Deputy President Asbury and was listed for a Conciliation/Directions conference. Following the conference, the Applicant made an application seeking that Asbury DP recuse herself from arbitrating the matter. The submissions in relation to that interlocutory application were sealed on the Commission’s file. The Deputy President recused herself and the file was subsequently referred to the Commission as currently constituted.

[3] The matter was heard at the Maroochydore Courthouse. Following the hearing, further Directions were set by consent for the filing of final submissions.

[4] The Applicant was represented by Mr S. Hogg of Counsel, instructed by Mr I. Hogg of Jason Nott Solicitors. The Respondent was represented by Mr J.W. Merrell of Counsel, instructed by Mr H. Proctor of Aitken Legal. The representatives were granted permission to appear pursuant to s.596 of the Act on the basis that the jurisdictional objection involved some complexity and it would provide efficiency in dealing with the material.

[5] Whilst not all of the submissions and evidence are referred to in this decision, all of such have been considered.

BACKGROUND

[6] The Applicant commenced employment with the Respondent on 11 January 2016. The Respondent raised a jurisdictional objection to the application pursuant to s.386(1)(a) of the Act, stating that no termination occurred at the initiative of the Respondent. The Applicant submitted that he was dismissed at the initiative of the Respondent on 12 September 2016. Alternatively, the Applicant accepted that he resigned his employment, however submitted that pursuant to s.386(1)(b) of the Act, he was forced to resign on 14 September 2016 as a result of the Respondent’s conduct.

[7] The Respondent operated a number of new and used motor vehicle dealerships as part of the Crick Auto Group. The Applicant had first held a position within the Crick Auto Group from 5 August 2013 at a dealership referred to as DC Motors, located in Rockhampton. 1 Whilst employed at DC Motors, the Applicant had the surname of, “Butt,” and certain correspondence refers to the Applicant accordingly.2 The Applicant remained employed at DC Motors until his resignation on 1 August 2015.3

[8] In October 2015, the Applicant commenced employment with Keema Automotive Group. 4 In his statement dated 17 July 2017, the Applicant stated that he resigned his employment with Keema in December 2015.5 At the hearing, it was put to the Applicant that his employment was terminated, to which the Applicant replied, “[n]o, it was during a probationary period and it was a mutual parting of ways.”6

[9] Shortly after the end of that employment, the Applicant contacted Mr Donald Holden, Group Business Manager of the Respondent, to discuss the possibility of returning to employment within the Crick Auto Group. 7 Mr Holden offered the Applicant the position of Business Manager at Cricks Mt Gravatt Pty Ltd and he commenced employment at that dealership on 11 January 2016.8

[10] Mr Holden, at the request of the Applicant, subsequently arranged for him to be transferred to the Respondent’s dealership on Wises Road, Maroochydore in the position of Business Manager commencing on 1 March 2016. 9

[11] The Dealer Principal at the Respondent’s Wises Road dealership was Mr Ian Mason. 10 On 8 June 2016, the Applicant corresponded by email with Mr Holden outlining a number of specific, “issues,” that he had with Mr Mason.11 The Applicant alleged that Mr Mason did not engage in strategic planning, lacked basic understanding of financial products and was generally disliked by staff at the dealership. He further stated that Mr Mason was, “flat, boring and everyone knows he is the root cause of our failures at the moment.”12 At the hearing, the Applicant accepted that Mr Holden was a mentor to him and, “the sort of person you forward that sort of complaint and enquiry to.”13 The Applicant was subsequently transferred to the Respondent’s Flinders Lane dealership in Maroochydore, once again to the position of Business Manager.14

[12] The Applicant commenced work at the Flinders Lane dealership on 1 July 2016. 15 The dealership was managed by Messrs Sam Bohner and Dean Stuart, both Dealer Principals of the Respondent. The Applicant’s direct manager was Mr Rob Stankiewicz, Finance and Insurance Trainee Manager of the Respondent.

[13] Whilst employed at the Flinders Lane dealership, the Respondent alleged that the Applicant was involved in two incidents involving a recently appointed, young, female employee. He was alleged to have made two separate comments that caused offence to the employee. The Respondent characterised the alleged second comment as sexual harassment and stated that the conduct contravened the Respondent’s sexual harassment policy. 16 The Respondent stated that the Applicant had recently received training in this policy and had confirmed, by signature, his understanding and training in this policy. The Respondent sought a response from the Applicant in relation to the comments. The Applicant contested the factual basis of the allegations and denied the two incidents.

[14] This decision firstly deals with the jurisdictional objection, whereby the Respondent stated that no termination at the initiative of the Respondent had occurred and the Applicant conversely argued that he was forced to resign; and the events relevant to the manner in which the Applicant’s employment ended.

RELEVANT LEGISLATION

[15] Pursuant to s.394 of the Act:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy…

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[16] Further, ss.385, 386 and 387 of the Act relevantly provide:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

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:

(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.”

[17] Pursuant to s.390 of the Act:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

[18] The Respondent raised a jurisdictional objection to the application and stated that there was no termination at the initiative of the Respondent. The Respondent alleged that the Applicant was not dismissed within the meaning of s.386(1)(a) of the Act as he voluntarily resigned his employment, having provided a written resignation and one weeks’ notice on 14 September 2016. 17 Accordingly, it was submitted that pursuant to s.385(a) of the Act, the Commission’s jurisdiction to determine the application was not enlivened.

[19] It was submitted that the Respondent had consistently supported the Applicant in his employment, however the Applicant had caused frequent issues for the Respondent and in particular, Mr Holden. In terms of the events leading up to the cessation of the Applicant’s employment, the Respondent stated that the Applicant was involved in two incidents concerning comments made to a young, female employee recently employed as a Sales Trainee (whom will be referred to as, “Person A,” in this decision). Person A commenced employment with the Respondent in mid July 2016. The first alleged incident occurred only a few days into Person A’s employment. The second incident was alleged to have occurred on 10 September 2016.

[20] Person A reported the alleged incident of 10 September 2016 to Mr James “Jimmy” Twentyman, a Manager of the Respondent. 18 Mr Twentyman typed the incident report for Person A.19 The Applicant considered that Mr Twentyman was biased toward him as prior to the alleged incidents, the Applicant had been involved in a dispute with Mr Twentyman over the sale of a vehicle. On 15 July 2016, the Applicant sent the following email to Mr Stuart in relation to Mr Twentyman’s handling of the sale:

“Hi Dean,

You will have to forgive me it seems to be different with every dealership. Jimmy is upset with me because I noticed we had not done up the contract correctly on a demo so I fixed it while the customer was here and tried to get him to resign it. The customer got upset by the changes due to rego difference.

I am not use to the way jimmy operates as I am use to contracts being correct when they are generated to ensure we don’t run into issues down the track with customers. It also can hinder my ability to operate efficiently and accurately with GFV if contracts are not set up initially as demo’s. I would also be concern we are not giving customers their cooling off rights etc by doing so.

Talk soon

Kind regards,

Philip Parker

Senior Business Manager” 20

[21] Mr Stuart initially stated in cross-examination that he had no recollection of the email, however when the email was provided to him, he agreed that he recalled such. 21 However, Mr Stuart denied that he held any bias against the Applicant.

[22] On 12 September 2016, after receiving Person A’s incident report, Messrs Bohner, Holden and Stankiewicz, the Dealer Principal, Group Business Manager and the Applicant’s direct Manager respectively, conducted a meeting with the Applicant to discuss the allegations. During the meeting, the Applicant was provided with the following letter:

“Dear Phil

Today I received a formal complaint from a fellow employee in regards to your behaviour around her. On more than one occasion you have made her feel highly uncomfortable, however on Saturday she became upset enough with your comments to her that she made a complaint to management.

I have attached this complaint for your reference. As you can see she refers to two particular occasions where your behaviour was highly inappropriate.

I refer to our employee handbook which you acknowledge you read and understood on January 2016. On page 12 it states the following.

Gross Misconduct (Instant Dismissal)

Crick Auto Group has the right to dismiss an employee without warnings in the event of serious misconduct.

Circumstances where formal disciplinary procedures may be necessary to terminate an employee’s employment instantly and/or involve the Police may include, but are not limited to:

•  Refusal of duty (lawful instruction)

•  Serious breach of safety

•  Use of illegal drugs or alcohol

•  Smoking in a restricted area

•  Sleeping on the job

•  Fighting or threatening to cause harm to others

•  Deceit

•  Breaches of legislation e.g. Trade Practices Act, Workplace Health & Safety Act

•  Fraud (any form of)

•  Theft

•  Neglect of Duty

•  Wilfully damaging or tampering with Company property and safety equipment

•  Discrimination, harassment, Intimidation and/or bullying in the workplace

In all instances the employee will be given the opportunity to defend or explain their behaviour in a formal counselling with the opportunity to have a witness present. An employee may be suspended pending the outcome of an investigation.

On Page 16 and 17 our handbook discusses discrimination.

Page 16

Anti-Discrimination, Sexual Harassment, Bullying & Violence

Crick Auto Group is committed to providing a safe workplace that is free from all forms of discrimination, harassment, bullying and violence. Crick Auto Group will not tolerate discrimination, harassment, bullying or violence in the workplace, and will take appropriate disciplinary action up to and including termination of employment whenever it is found to occur. An employee may also be deemed to be in breach of this policy even if no person comes forward to make a formal complaint.

Page 17

Sexual Harassment – is any unwanted, unwelcome or uninvited conduct of a sexual nature which humiliates, intimidates or offends. Sexual harassment includes any act, gesture, comment, written remark, physical contact, rumour, joke or taking advantage of a deserted workplace to act in a ‘sexual manner’. Such conducts [sic] includes but is not limited to:

•  Leering, patting, pinching, touching or unnecessary familiarity

•  Requests or demands of sexual favours

•  Repeatedly being asked out, after continual refusals

•  Display of offensive posters, magazines, pictures or graffiti

•  Dirty jokes, derogatory comments, offensive written messages

•  Offensive telephone calls, faxes, emails, text messages, electronic postings on social network sites, etc

Bullying – is aggressive and unreasonable behaviour that intimidates, humiliates and/or undermines a person or group. The following types of behaviour, where repeated or occurring as part of a pattern of behaviour, may be considered bullying:

•  Verbal abuse

•  Excluding or isolating employees

•  Criticism, sarcasm or insults

•  Psychological harassment

•  Assigning meaningless tasks unrelated to the job

•  Giving employees impossible assignments

•  Deliberately withholding Information that Is vital for effective work performance

Employees are protected by this policy whether they are harassed or discriminated against by another employee, client, contractor or customer.

Under this policy all employees are responsible for ensuring that they do not discriminate, harass, bully, victimise or threaten to use violence or attack others In the course of their employment. Phil it is a shame that we have reached this point however you have left us with no choice.

Both incidents are deemed unacceptable and will result in your instant dismissal for Gross Misconduct.

As per the handbook I will give you an opportunity to explain your actions with a witness present. Should your explanation warrant a change in my decision I will notify you in writing before close of business Tuesday, September 13. To save prolonging the matter please remove your personal effects upon your exit this afternoon and also ensure that all property of Cricks remains at the dealership.

Regards

Sam Bohner

Dealer Principal” 22

[23] The Respondent stated that the Applicant was in receipt of the Respondent’s employee handbook and had confirmed that he had been trained in its procedures on 21 January 2016. The Respondent submitted that the Applicant had made concessions in his evidence that he was aware that, “he could not make comments that were derogatory and of a sexual nature to another employee,” and that, “he could not act aggressively and unreasonably that intimidated another employee.” 23

[24] On 13 September 2016, the following text message exchange occurred between the Applicant and Mr Holden:

Mr Parker: Hey mate, can we talk? You have to understand how devastating this would be to me. I know you know me well enough to know I didn’t say those things. I been [sic] working so hard. I deserve a fair outcome and my job back.

Mr Holden: Will call you later I have only just got out of meetings I tried to call you just before but you were on your phone.

Mr Parker: Thanks I sent the email with my version of events. Trying to cooperate. Anything you guys want I’m happy to do. I understand the seriousness of this. 24

[25] The email referred to above, was sent by the Applicant to Messrs Bohner, Holden and Stuart, in which he responded to the matters outlined in the letter from Mr Bohner. The email stated as follows:

“Good morning,

As discussed please accept this email as my response to the allegations outlined in the letter of termination provided to me on the evening of 5:30 pm on the 12th of September.

I take matters of this nature very seriously and you should ensure I am provided with a fair outcome.

In response to the incident reported to on the 20th of July I make the following statements

1) I did meet with [Person A] during work hours to explain Dealership finance and our position as business managers in the dealership. I explained how finance works, this included a drawing to explain GFV I residual balloons where I drew a picture of a car. She laughed because my drawing was not very good. Afterwards we were walking back towards the sales team and we ran into Dean Stuart, I explained I had just discussed finance and my role with [Person A]. Dean asked how it went. [Person A] said, “Amazing my mind is blown”.

2) Our conversation did not occur at the time she has stated as I was on the afternoon of the 20th of July I was trying to get a finance approval for a customer and between 4:30pm and 6PM, this engaged me in multiple calls to lenders and the customer. At 5:30pm I had phone conversation with Michelle from Nissan finance about the customer [redacted]. I was hoping to get the customer approved so he could take delivery by the very first thing the next morning before he started work. As there was a complex income situation I was having trouble getting first Volkswagen and then Nissan to accept the chain of payslips I had sent in due to his being moved within his employment group.

3) Rhys Kett was present in my office during many interactions with staff and [Person A] at various times during my employment. I am confident if asked he would could verify that I at no point ever made any derogatory comments in the nature of this accusation.

In response to the accusation dated Saturday 10th of September I make the following statement

At approximately 4:00pm Andrew Howard came to my office and asked for me to come talk to a customer he said the customer was a time waster. I took the customer and his friend to my office where I proceeded to discuss finance options. We discussed options and I took a application from the customer. I asked Andy to do up a contract of sale and returned the customer to Andy’s Desk. At 4:15pm I informed at Andy’s desk the customer that he was approved. The customers went outside briefly to discuss whether to proceed. They returned after 5 minutes and agreed to proceed. They first signed Andy’s paper work and then came to my office. At 4:20 as the customer did not have his payslips he drove home to get them and return before close. I spent the next 20minutes furiously preparing options letters and getting as ready as possible for the delivery. Doing a on the spot can be very labour intensive. During this 20minutes [Person A] stopped in to get the deal pack so she could create a test drive loan agreement form as we were unable to transfer the registration. I provided her with the deal pack. Andy stopped in and said he had to go but [Person A] would stay back as it was her deal. [Person A] returned the deal pack at which point she said that the customers friend was hitting on her. I said just send them back into me when they get here and you will be fine. I did not pay much attention or have any other conversation as I was busy and are no good at doing work on my computer and talking at the same time.

At 4:50pm the customer returned with 3 payslips, I was then with the customer for nearly an hour and at approximately 5:45 pm we left my office. I was surprised [Person A] had stayed as the customer had the keys but she had not yet got the test drive loan agreement form signed. She did this in front of the printer.

The customer signed [Person A] walked them out I went back to my office to finalise paperwork. [Person A] popped by my office and said she was leaving I asked if she knew how to get out? She replied “yeah, See you Monday thanks so much”

On Monday morning [Person A] came into my office and sat down at about 9:30am and asked how I was and what time I had finished up Saturday night. I explained I had left 10 min after her. She did not mention anything about Saturday and seemed pleased to come say hi.

Now during my Suspension interview you brought Jimmy Twentyman in and he explained he had received the complaint on the afternoon of the 10th I would like to take this opportunity to point out 2 reasons this may not be the case.

1) If Jimmy a responsible manager had received such a complaint why did he not stay with [Person A] or send her home. Jimmy seems to be acting like this incident was very serious and that he is protecting [Person A], Yet he didn’t Stay? Why would he leave a trainee with 3 grown me by herself in a dealership when she explained she was made uncomfortable by at least 2 of them? This seems very unlikely and not in Jimmy’s nature

2) Jimmy has recently clashed with me over poor compliance with his paperwork and referrals to aftermarket as I have been trying to correct serious breaches of duties with paperwork. He made threat to me recently that he would get me fired as he no longer wanted to work with me. I can prove this attitude towards me and the date and time it occurred on.

I look forward to the outcome of your investigation and returning to work. If required I can put forward several character references in the group who could attest I do not speak in the way accused to staff.”  25 [Errors in original]

[26] The Respondent referred to comments made by the Applicant during cross-examination, to demonstrate that the Applicant was aware that his employment had not been terminated by the letter of 12 September 2016:

Mr Merrell: I’m correct in suggesting this, Mr Parker, that after you received Mr Bohner’s letter on 12 September 2013 [sic], having regard to your response where you refer to your suspension interview and the outcome of the investigation and your return to work, you knew that you hadn’t been dismissed as at 12 September 2016?

Mr Parker: In that particular point I’m not entirely sure what I was. “Suspended indefinitely” was the term I believe you used.

Mr Merrell: Mr Parker, these are your words in this email?

Mr Parker: I was trying to return to work.

Mr Merrell: These are your words in this email, Mr Parker?

Mr Parker: They are my words, yes.

Mr Merrell: And when you say, “During my suspension interview”, and when you say, “I look forward to the outcome of your investigation and returning to work”, you knew that you hadn’t been dismissed by your employer as at 12 September 2016?

Mr Parker: I was unsure. I can’t say that I was definitively either way. Sorry, if you want me to be completely honest, I don’t know either way what was happening. 26

[27] Following the meeting on 12 September 2016, the Applicant was seeking Mr Holden’s counsel and at approximately 5:00 pm on 13 September 2016, Mr Holden retuned the Applicant’s telephone call. During the course of the telephone conversation, Mr Holden stated that the Applicant had said he had contemplated, “going legal,” following the meeting with the Respondent on 12 September 2016. 27 Mr Holden stated that during the telephone conversation, he said words to the following effect:

“What you need to think about is that, whether you win or lose, when future employers ring to get a reference and ask why you left, they are going to find out that a sexual harassment allegation was made against you. They do not ask whether went [sic] to court and who won - all they hear is that you had a sexual harassment allegation against you.

The way I see this panning out is that it will go one of two ways. You either resign due to you not getting the career progression that you want and that is what people will know - or you go legal on this and everyone is going to find out about it.” 28

[28] At approximately 9:00 am on 14 September 2016, Mr Holden had a telephone conversation with the Applicant, during which, the Applicant said that he was prepared to leave his employment on the provision that it would be treated as a resignation and reduced to writing; that he would be paid his commissions; and that he would be provided with a statement of service. 29 Mr Holden telephoned Mr Bohner and informed him of the Applicant’s proposal and Mr Bohner confirmed that, “he was happy with an arrangement whereby the Applicant resigned.”30

[29] At 1:03 pm on 14 September 2016, Mr Holden received the following email from the Applicant:

“Hi Don,

Done my best with this statement make changes if you want.

I haven’t been in this get fired or resign position in my life and I want to thank you for helping me through this hard time.

If I can just get an email from Sam saying that the likely outcome from his perspective is to terminate my employment but that out of respect for the work I have done for him to save me future embarrassment and assist with my gaining future employment if he receives a notice to leave employment from me by this afternoon, my record will reflect one of leaving and not being fired, I would also like him to let me know he will pay me my one week notice, outstanding holiday pay and September commissions within the next 7 days.

I have the letter ready,

Talk soon” 31

[30] It was put to the Applicant, “the items in that second paragraph are items that you wanted from your employer in return for your resignation?” to which the Applicant replied, “yes, I guess you could put it that way.” 32

[31] The above email from the Applicant to Mr Holden attached a proposed, unsigned statement of service prepared by the Applicant, for Mr Holden’s consideration. Mr Holden signed the statement of service and returned it to the Applicant as requested. The statement of service stated:

“To whom it may concern,

Philip Parker was employed by the Crick Auto Group from the 11th of January 2016 to the 14th of September 2016 as a business manager. During this period Philip Parker was employed as a Business Manager. His duties during this period consisted of the following:

•  Provide Finance and insurances services products to customers of the Crick Auto group

•  Complete and maintain lender and insurer training requirements

•  Comply with regulatory guidelines when dealing with customers and lenders

•  Negotiate/close sales

•  Maintain and achieve industry result standards

•  Train and monitor our Trainee Business Managers when asked to do so

•  Review and advise other business managers on applications and assist systems knowledge if required

•  During his employment Philip began training to interview potential new staff

•  Philip also conducted reference checking as a part of this process

•  Philip also held and maintained a high level of relationships with the account managers of our 5 lenders and was authorised to negotiate rate reductions and escalate applications for review on behalf of the group to assist business managers will getting approvals

•  During his employment Philip was very versatile and as a result was able to be moved between our sites

•  His knowledge base of lender and insurances products and standards is of the highest industry standard

•  During his employment Philip regularly wrote income above industry standards with his final month being with a PVR over $2000 per car for over $100,000 in income for the month of August

•  Philip was for 2 years previously employed at our Rockhampton branch DC motors and regularly archived [sic] figures in that region for in excess of the above result

•  Philip regularly worked 6 day weeks and would stay back late if required

Regards,

Don Holden” 33

[32] The Applicant telephoned Mr Holden to confirm that he had received the above email. After Mr Holden had read and considered its contents, Mr Holden telephoned the Applicant back and, “confirmed that I was happy to sign the statement of service and that I would talk to Mr Bohner about the request to have the termination recorded as a resignation, and for the relevant entitlements to be paid.” 34 Mr Holden signed a copy of the statement that the Applicant had prepared.35

[33] At 4:25 pm on 14 September 2016, Mr Bohner sent the following email to the Applicant and copied in Mr Holden:

“Afternoon Phil

I have further investigated the two incidents that led to our meeting on Monday and your current employment suspension. After careful consideration I am inclined to uphold my decision to terminate you. That said, in the interests of a fair and swift outcome, and in light of past contributions made to our results I will give you the following option.

Send me an email by 8am tomorrow informing me of you [sic] intention to leave your employment with Cricks. If you do so I will ensure your employment records reflect this resignation, not a dismissal for mis-conduct. In the next 7 days I will pay you 1 weeks salary plus all due entitlements. Commissions for September business written will be paid once finalised.

Phil, this will save you future embarrassment and will ensure that both of us can move past this quickly.

Should I not receive this email I will respond with your formal dismissal and the reasons for my decision. I trust that you agree this is a fair outcome.

Thanks and Regards

Sam Bohner” 36

[34] At 5:29 pm, the Applicant emailed Messrs Bohner and Holden, enclosing his letter of resignation:

“Notice to leave employment

I Philip Parker are leaving my employment with the Crick Auto Group due to the untenable employment situation I am faced with. Moving forward I am lead to understand that this letter will ensure my employment record will reflect having resigned and not being fired. This will save me future embarrassment and hindrance with gaining future employment. I provide the required minimum 1 week notice and expect I will be paid my entitlements within the next 7 days.

This includes payment for any unpaid commissions and Holiday pay. My final week of pay and holiday pay should be paid as if I was at work and include my car allowance. This is covered by the fair work act minimum standard regarding termination pay.

I have settled approximately $21,000 to date for September and have achieved all of my KPI’s. I have approximately $10,000 in undelivered income and expect payment on half of it at my current KPI rate as per our group policy you will need to pay the delivering business manager on the other half.

Regards,

Philip Parker” 37 [Errors in original]

[35] The Respondent argued that the Applicant’s conduct was commensurate with a resignation and that the context of the Applicant’s prior employment history was relevant, as was the language of the correspondence to the Applicant and his responses. In addressing the Applicant’s resignation, the Respondent referred to the case of Regional Express Holdings Limited v McDonald, 38 where it was held that:

“61. Notices such as a notice of termination under cl.8.5 of the Agreement do not require acceptance or rejection by the receiving party and belong to the general class of unilateral notices which may be served pursuant to a contractual right: see Fardell v Coates Hire at 88 [93]; Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 768; Robinson v Becata at [49]. Such notices are construed according to principles which are analogous to those applied in the consideration of contracts: Robinson v Becata at [53], Mannai at 767, 779-780. That is to say:

[A]n effective notice is one which conveys its message clearly ... and distinctly to a reasonable reader in the position of the recipient of the notice. Being “in the position of the recipient” involves, in particular, having the knowledge of the circumstances surrounding the transaction in which the notice is given which the recipient has or ought to have. (Robinson v Becata at [49])

A statement to similar effect was made in Fardell v Coates Hire at 85 [92]. However, evidence of surrounding circumstances will not be admissible unless the language of the notice is ambiguous or susceptible of more than one meaning. It will not be admissible to contradict language which has a plain meaning: cf. Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337 at 352…” 39

[36] In relation to these comments by the Applicant regarding the status of his employment, the Respondent submitted:

“67. Given:

(a) the terms of the letter given to the Applicant on 12 September 2016;

(b) the terms of the Applicant’s response dated 13 September 2016; and

(c) the Applicant’s last answer as set out [above],

it is simply not the case that the Applicant was dismissed or that there was an act on the part of the Respondent whereby the Applicant was dismissed by the Respondent’s letter given to the Applicant on 12 September 2016.”  40

[37] The Respondent submitted that the terms of the Applicant’s resignation and what he sought in addition, were clear. The Respondent relied on the decision in Concannon v Portland District Health, 41 which adopted the decision of the Full Bench of the Australian Industrial Relations Commission in P O’Meara v Stanley Works Pty Ltd,42 where it was held that:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” 43 [Emphasis added]

[38] It was stated that the letter to the Applicant did not terminate his employment, as the evidence of the Applicant was that he was not certain of the Respondent’s position, regarding his employment at that stage. The Respondent submitted that the Applicant had given thought to the terms of his resignation and had proposed terms that were to his own benefit. 44 The proposed terms were accepted by the Respondent and the Applicant resigned his employment in accordance with his proposed agreement.45 Accordingly, it was submitted that the Applicant voluntarily resigned his employment.

[39] The Respondent submitted that the Applicant was an, “unimpressive witness,” 46 in response to the allegations of misconduct. For example, the Respondent referred to the Applicant’s conduct at the meeting of 12 September 2017 and stated that the meeting was covertly recorded by the Applicant on his mobile phone. It was put to the Applicant that he recorded the meeting without telling the other attendees and the Applicant, “eventually,”47 conceded this point.48 The Respondent submitted, “[t]he Applicant, when he gave his evidence in cross-examination, was initially bending the truth in an endeavour to advance his own case and only gave truthful answers when pressed.”49

[40] At the hearing, the Applicant referred to, “leaving employment,” and, “resigning.” 50 When asked by Counsel for the Respondent whether the Applicant’s, “notice to leave employment,” was a resignation, the Applicant stated, “[i]t was forced, so I had to leave employment and find new employment because I was unable to continue with my duties.”51 Further, when asked whether the Applicant proposed the terms for his departure to Mr Holden, the Applicant responded, “Mr Holden proposed terms to me, and we discussed those terms and he discussed what he thought was the likely best outcome for myself, and I agreed with that and then put that in an email as per his request on the phone to put that in an email to him, which I did.”52

[41] The Respondent submitted, “even from the… evidence [as set out above] (and leaving aside the issue of who proposed the terms, which the Respondent says, for the reasons above, was the Applicant after he most likely had taken legal advice) the Commission can be left in no doubt that Applicant’s resignation was voluntary.” 53 It was submitted that the Applicant considered that the terms set out were acceptable as, “he would not have to face future employers with a dismissal against his name because he engaged in sexual harassment,”54 and that, “[t]he Applicant resigned voluntarily as it was in his best interests.”55

[42] In summary terms, the Respondent submitted that:

“(a) while Mr Holden, on 13 September 2016, proposed to the Applicant that resignation may be a better alternative for the Applicant than the Applicant “going legal”, Mr Holden did not state to the Applicant that if he did not resign he would be dismissed;

(b) the Applicant gave overnight consideration to the discussion he had with Mr Holden on 13 September 2016 and came back the next day with a clear and well thought out proposal for his employment to come to an end by his resignation, on the terms he proposed, which were to his own advantage;

(c) that proposal by the Applicant was accepted by the Respondent as part of an agreement with the Respondent as evidenced by Mr Bohner’s email to the Applicant on 14 September 2016; and

(d) the Applicant then resigned in accordance with that agreement with the Respondent.” 56

[43] Further, the Respondent submitted that, “the Applicant’s resignation… was thought out by him; was, by the terms of the written resignation letter, considered by him to his advantage; and was made as part of an agreement with the Respondent.” 57

[44] The Respondent submitted that an adverse inference should not be drawn in regard to the Respondent not calling Mr Twentyman to give evidence at the hearing. 58 It submitted that the rule in Jones v Dunkel is not enlivened,59 as it, “only applies where a party is required to explain or contradict something.”60 The Respondent submitted that Mr Twentyman was not present at the time of the alleged incidents involving the Applicant and Person A and accordingly, could not provide evidence to contradict the Applicant.61 Instead, it was submitted that the Commission must decide the issue of the end of the employment relationship on the credibility of the Applicant and the sequence of events that occurred, in which the Applicant played a key role.62

[45] For these reasons, the Respondent submitted that the Applicant’s resignation was voluntary and s.386(1)(a) of the Act was not enlivened.

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

[46] The Applicant submitted that he did not voluntarily resign his employment and contended that he was either dismissed by letter dated 12 September 2016 (as set out previously) or that his resignation was, “forced,” within the meaning of s.386(1)(b) of the Act.

[47] The Applicant submitted that the principles of forced resignation or constructive dismissal require all of the circumstances of the termination to be examined and not only the actions of the Respondent. It was submitted that the Respondent’s conduct must be weighed objectively and that it, “may be shown to be sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal.” 63

[48] In arguing forced resignation or constructive dismissal, the Applicant’s representative referred to the two limbs of s.386 of the Act. In relation to the first limb, defined as termination at the initiative of the employer, the Applicant relied on the case of Mohazab v Dick Smith Electronics Pty Ltd (No. 2), 64 where the Full Court of the Federal Court held:

“On the finding of fact that the respondent directed the appellant to resign or have the police “called in”, it is our view that what occurred was a termination of employment at the initiative of the employer. When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee’s initiative. But for the insistence of the employer, termination of employment would not cross the mind of the employee…

On the facts as found by the registrar the threat to call in the police was intended to induce a reluctant resignation in circumstances where the respondent had not completed its inquiries and had not resolved to report the matter to the police. It appears to have been accepted by the registrar as a finding that the appellant believed that a report to the police would place a stain on his character and inhibit his prospects of other employment in the future, irrespective of the outcome of a police investigation.

The proper conclusion from the facts as found by the registrar and presented to his Honour was that the respondent wanted the appellant’s resignation because it desired to terminate the appellant’s employment. There was no other reason for it to do so. It sought to do so in that way to avoid any consequences that might flow from summary dismissal of the appellant. It is apparent that on the findings of the registrar as to what occurred at the interview the respondent made it clear through its representatives that it no longer desired to employ the appellant.

In our opinion, the “critical action” here, to use the expression of the Chief Justice in David Graphics, was the threat of the respondent that unless the appellant resigned the respondent would ask the police to charge him with an offence. The termination of the appellant’s employment was not at his initiative. It was a resignation obtained by the respondent by an ultimatum designed to achieve that objective. That conclusion is reinforced by the peremptory conduct of the respondent in escorting the appellant out of the respondent’s premises, leaving him to stand in a carpark to await a letter of resignation to be prepared by the respondent and brought to him to sign. That conduct by the respondent suggested summary termination of the appellant’s services by the respondent rather than voluntary resignation by the appellant.” 65

[49] The Applicant submitted that, in terms of the second limb, regarding constructive dismissal it is necessary to look at all of the circumstances of the termination, accordingly it was submitted on behalf of the Applicant:

“16. When a resignation is given in the heat of the moment or under extreme pressure, or special circumstances for example no alternative may arise for further consideration.

17. In the present circumstances there is evidence that the respondent would proceed to dismiss the applicant asking the applicant to “resign or we will [effective] sack you”. Sam Bohner said to the applicant “What do you want me to fire you or you want me to give you come benefit of the doubt Phil?” [sic]

18. In such special circumstances an employer may be required to allow a reasonable period of time to pass and an employer may have a duty to confirm the intention to resign if, during that time, they are put on notice that the resignation was not intended.

19. Terminations on the initiative of the employer have included those in which an act of an employer either directly or consequentially has led to the departure of an employee; namely, had the employer not taken the action it did, the employee would have remained in the employment relationship. The applicant contends that, looking at the respondent’s conduct, any reasonable person would have taken the respondent to have meant to bring the applicant's employment to an end.” 66 [Footnotes omitted]

[50] It was submitted on behalf of the Applicant, that the voracity of the complaint was not tested before being put to the Applicant and that further, this was part of a series of actions relied on by the Respondent designed to bring the employment relationship to an end, regardless of whether the Applicant intended to leave voluntarily.

[51] The Applicant referred to the test in determining whether the cessation occurred on the, “employer’s initiative,” and submitted that:

“25. The test for determining whether the termination was at the initiative of the employer is whether the employer’s conduct, viewed objectively in light of all the circumstances was of such a nature that the applicant’s resignation was the probable result or that the applicant had no effective or real choice but to resign.

26. In relation to what is meant by a termination at the initiative of the employer, the Full Court of the Industrial Relations Court of Australia found the following in an early case, Mohazab v Dick Smith Electronics Pty Ltd (No. 2):

“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important departure is that the ad of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”

27. In determining whether this is the case, the Commission must carefully consider what has occurred, with the Full Bench finding as follows:

“Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.” 67

[52] The Applicant made specific reference to instances of forced resignation. The Applicant submitted that in situations where an employer did not have a subjective intention to bring about the end of the employment relationship, the cessation may still have occurred on the employer’s initiative. It was submitted that:

“28. In all though, that a resignation may be involuntary in and of itself may not be sufficient on “an objective analysis of the employer's conduct” to be said to form a constructive dismissal:

“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer required the employer to intend by its action that the employment will conclude. I am prepared to assume for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer’s conduct.”

29. The Full Bench developed on these matters in the matter of Bruce [v] Fingal Glen Pty Ltd (in Liq) [[2013] FWCFB 5279] in which the following was said about the paragraph above from Rheinberger:

“The situation contemplated in this passage is one in which the act of an employer which led to an employee’s resignation was not intended to cause an employee’s resignation (as was the case in Mohazab), but “would, on any reasonable view, probably have that effect”. Rheinberger therefore qualifies the passage from Mohazab quoted above in two respects. First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an “important feature” of constructive dismissal, it is not sufficient that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee”.” 68 [Footnotes omitted]

[53] In arguing constructive dismissal, the Applicant contended:

“32. The important document which the respondent omits to refer to in its submission is the letter from Mr Sam Bohner to the applicant dated 12 September 2016. According to Mr Bohner’s own evidence (at paragraph 10 of his statement) he provided the applicant with this letter during the meeting with him to discuss [Person A]’s complaints. The relevant text is at the bottom of page 2 and the top of page 3 of this letter and reads “Both incidents are deemed unacceptable and will result in your instant dismissal for Gross Misconduct. As per the handbook I will give you an opportunity to explain your actions with a witness present. Should your explanation warrant a change in my decision I will notify you in writing before close of business Tuesday, September 23. To save prolonging the matter please remove your personal effects upon your exit this afternoon and also ensure that all property of Cricks remains at the dealership.”

33. Any reasonable person would have concluded from this passage that their dismissal from their employment was inevitable because:

a. Mr Bohner said words to this effect in the letter;

b. Mr Bohner asked the applicant to remove his personal effects from the premises. This is not the statement of someone who intended on giving the applicant the benefit of the doubt until the applicant had had the chance to explain himself;

c. As it transpired, Mr Bohner never gave the applicant the chance to explain his actions with a witness present after giving him the letter.

34. The respondent also glosses over the email from Mr Bohner to the applicant appearing at SB6 or Mr Bohner’s statement sent on 14 September 2016 at 4:25pm. The relevant text in this email is:

I have further investigated the two incidents that led to our meeting on Monday and your current employment suspension. After careful consideration I am inclined to uphold my decision to terminate you. That said, in the interests of a fair and swift outcome. and in light of (past contributions made to our results I will give you the following option.

Send me an email by 8am tomorrow informing me of you (sic) intention to leave your employment with Cricks. If you do so I will ensure your employment records reflect this resignation, not a dismissal for mis-conduct (sic).

…

Phil, this will save you future embarrassment and will ensure that both of us can move past this quickly.

Should I not receive this email I will respond with your formal dismissal and the reasons for my decision. I trust that you agree this is a fair outcome.” 69

[54] The Applicant submitted that when he received Mr Bohner’s email on 14 September 2016 (as set out previously), he was left with no option and that the Applicant did not send his letter of resignation until an hour after he had received this email from Mr Bohner. The Applicant further argued that the Respondent’s conduct after 12 September 2016 was in accordance with the Respondent having dismissed the Applicant. The Applicant submitted that he considered his termination was involuntary and induced in order that he considered his resignation would, on his submissions, “save [him] the future embarrassment and hindrance in gaining future employment.” 70

[55] The Applicant submitted that, “while [the Applicant] did send an email at 5:39pm on 14 September 2016 purporting to resign, the factual matrix sitting behind this shows that the only reason he resigned was because he understood that the alternative was to be dismissed, with all the deleterious effects this smear would have on his ability to gain future employment.” 71

[56] The Applicant submitted that the conduct of the Respondent must be, “assessed objectively,” 72 and that it should be the, “principal contributing factor,” or a, “sufficiently operative factor,”73 in the Applicant’s resignation for it to amount to a dismissal.

[57] The Applicant in his closing submissions, made particular reference to four incidents or occurrences which, he submitted show, “that either the respondent intended to bring the employment relationship to an end,” or that, “the end of the employment relationship was the probable result of the conduct.” 74 The incidents included: Mr Bohner telling the Applicant to remove his effects during the meeting on 12 September 2016, the Respondent, “failing,” to conduct a proper investigation of Person A’s complaints, the fact that Mr Bohner did not correct the Applicant on his assertion that it was a, “quit or get fired situation,” and Mr Bohner’s email stating his intention to fire the Applicant if he did not resign.75

[58] The Applicant addressed the short length of his employment with Keema Auto Group and submitted that, “this is not evidence that the applicant would have been shortly dismissed by the respondent. As Mr Parker said in evidence, ‘it was during a probationary period and it was a mutual parting of ways’.” 76 Further, it was submitted that it was not relevant as Mr Holden agreed to reemploy the Applicant.

[59] The Applicant submitted that the complaint concerning Mr Mason, which is accepted to have led to the Applicant being transferred to the Flinders Lane dealership, assists the Applicant as it was done so, “presumably to keep him happy and in employment with Crick Auto Group. It seems he even gave him additional responsibility for training and assisting other business managers at the site.” 77

[60] The Applicant submitted that the Respondent’s reliance on the Regional Express Holdings Limited v McDonald, 78 can be distinguished as it did not concern a, “constructive dismissal case under the [Act].”79 It was submitted that the wording of s.386(1)(b) requires an examination of the Respondent’s conduct and that the issue in that case merely, “was whether the employee’s employment was terminated by him or his employer.”80

[61] It was submitted that whether the Applicant proposed his resignation was an issue of interpretation for the Commission. 81

CONSIDERATION

[62] In considering whether a dismissal has taken place, the Commission must have regard to the matters in s.386(1) of the Act.

[63] The common law with respect to s.386(1)(a) of the Act has been considered. In regard to the assessment of matters relevant to a, “termination at the initiative of the employer,” it has been held that:  82

“[15] There are well established principles of common law that have been developed by courts to determine whether an individual resigned or was terminated at the initiative of the employer. In P O’Meara v Stanley Works Pty Ltd a Full Bench of Australian Industrial Relations Commission conveniently summarised the common law approach. At [19], the Full Bench said:

“[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence... After referring to dictionary definitions of the term “initiative” and the convention giving rise to the statutory provisions, the Full Court said:

“These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process…

…

[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd  (Pawel) a Full Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee…

…

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[23] In our view the full statement of reasons in Mohazab… together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.”… In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign…” 83 [Footnotes omitted and emphasis added]

[64] As set out, it is unnecessary to reformulate the test as outlined above. However, the test is not simply whether the Respondent’s conduct either directly or indirectly led to the termination of the Applicant’s employment. The conduct of the Applicant and the Respondent must be viewed objectively, in all the circumstances.

[65] The Applicant had proposed terms for his resignation. The Applicant submitted that he was, “trying to make the best of the bad situation,” in proposing the terms, in circumstances where a dismissal had already occurred.

[66] The Respondent submitted that, “these were terms voluntarily put by the Applicant to the Respondent, through his trusted mentor, Mr Holden, for his resignation on terms that were for the Applicant’s own benefit.” 84 During cross-examination, the Applicant conceded the items he sought in his email of 14 September 2016 were in exchange for him resigning his employment.85

[67] It is accepted on the evidence of the Applicant’s proposed statement that the resignation, “was thought out by him; was, by the terms of the written resignation letter, considered by him to his advantage; and was made as part of an agreement with the Respondent.” 86

[68] The conduct of the Respondent must be objectively considered. The prior correspondence between the Applicant and Mr Holden and the further texts and emails between them during the period of employment, provided an insight into the assistance Mr Holden was endeavouring to provide to the Applicant in managing his aim to progress his career quickly with the Respondent. Mr Holden managed 26 staff of the Respondent and presented as being an experienced and reasonable manager, alert to managing the career aspirations of staff, 87 whilst also ensuring the commercial business goals were being achieved.

[69] At the hearing Counsel for the Applicant examined Mr Bohner with respect to the letter dated 12 September 2016 and the course under consideration with the Applicant, and following exchange occurred:

Mr Hogg: Yes, but what I’m suggesting to you is that you’d already made your mind up to terminate his employment?

Mr Bohner: No. No, that wouldn’t be fair and that wouldn’t be the right thing for me to do in my role. I needed to - I wanted to afford and I was obliged to afford Mr Parker an opportunity to explain himself, which is what he did and that obviously led to the events post that.

Mr Hogg: I suggest to you that that is a recreation of your memory because you've already stated in a letter you typed at the time that: “Both incidents are unacceptable and will result in your instant dismissal for gross misconduct.” You didn’t say “may result in your”?

Mr Bohner: I’d disagree with that statement because I think in my mind the next statement really says “Okay, if [Person A]’s telling the truth then, yes, then those two things are significant enough to perhaps warrant that but I'll give you an opportunity to explain yourself with a witness at 5 o’clock this afternoon”. So - and that's my responsibility to do that.

Mr Hogg: You see I suggest that’s not right because if you read the final sentence in your letter: “To save prolonging the matter, please remove your personal effects upon your exit this afternoon and also ensure that all property of Cricks remains at the dealership”…

That’s not the statement of somebody who intends to engage somebody or to give somebody the benefit of the doubt and allow them to return to work after the conduct of an investigation?

…

Mr Bohner: …I did because [Person A] was upset. It’s a working car dealership with many other people and I thought rightly or wrongly that that was the best course of action until the matter was resolved.” 88

[70] The Full Bench in ABB Engineering Construction Pty Ltd v Doumit, 89 considered the situation where there was some ambiguity in the Respondent’s conduct and held that:

“Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[71] There were ambiguities in the Respondent’s correspondence to the Applicant, 90 the most important of which being the alleged termination letter dated 12 September 2016. The letter stated:

“In all instances the employee will be given the opportunity to defend or explain their behaviour in a formal counselling with the opportunity to have a witness present. An employee may be suspended pending the outcome of an investigation…

As per the handbook I will give you an opportunity to explain your actions with a witness present. Should your explanation warrant a change in my decision I will notify you in writing before close of business Tuesday, September 13. To save prolonging the matter please remove your personal effects upon your exit this afternoon and also ensure that all property of Cricks remains at the dealership.” 91

[72] Whilst the letter indicated an intention to terminate the Applicant’s employment, it also provided the Applicant with an opportunity to respond. These propositions are inconsistent.

[73] During the meeting with the Applicant on 12 September 2016, the Respondent indicated that the Applicant would be suspended and an investigation would be conducted, however this was inconsistent with the wording of the letter handed to the Applicant during that same meeting. It would be incongruous to find that the meeting was intended to qualify the Respondent’s letter dated 12 September 2016. The letter stated, “[b]oth incidents are deemed unacceptable and will result in your instant dismissal for Gross Misconduct… Should your explanation warrant a change in my decision I will notify you in writing before close of business Tuesday, September 13.” The letter also stated, “[t]o save prolonging the matter please remove your personal effects upon your exit this afternoon and also ensure that all property of Cricks remains at the dealership.” 92 The letter can only be construed as a dismissal. This conclusion is supported by Mr Bohner’s email dated 14 September 2016 where he stated, “[a]fter careful consideration I am inclined to uphold my decision to terminate you.”

[74] By reference to the terms of the letters, the Respondent terminated the Applicant’s employment effective 12 September 2016.

[75] A termination had occurred at the initiative of the employer, as per s.386(1)(a). The jurisdiction of the Commission, in line with s.385 of the Act, is enlivened. Accordingly, the merits of the matter, also heard, must now be considered. In considering whether a dismissal is harsh, unjust and or unreasonable, the Commission must take into account the matters in s.387 of the Act:

(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

[76] In circumstances where it has been deemed that the Respondent terminated the Applicant’s employment for misconduct, such must be assessed. The Respondent submitted that the Applicant had engaged in inappropriate conduct and breached its sexual harassment policy in relation to the two comments made towards Person A, as set out below.

[77] On 20 July 2016 (the first incident), the Applicant was alleged to have said to Person A, “if you ever call me that finance guy or that guy or that business guy I will back hand you, even if you are a girl I don’t care.” 93 On 10 September 2016 (the second incident), when Person A told the Applicant that a customer was making her feel uncomfortable, the Applicant was alleged to have told Person A, “just show them your tits and you’ll be fine.”94

[78] In relation to the first incident on 20 July 2016, Person A stated:

“4. I commenced employment with the Respondent in around the middle of July 2016.

5. The first incident occurred about 3 or 4 days after I started with the Respondent, and just before we were about to close in the evening.

6. I remember that when providing my initial statement to Mr James Twentyman of the Respondent on 12 September 2016 (Mr Twentyman)… we estimated the date to be around the 20 July 2016, as I could not remember exactly when it was.

7. In terms of what happened during the incident, I was talking to the Applicant at the printer about financing cars, and he asked me to come down to his office to talk more about finance. We were sitting in his office and he grabbed an A4 sheet of paper from the printer.

8. The Applicant then started the conversation with: “If you ever call me that business guy, or that finance guy, I will backhand you. I don’t care if you are a girl.” The Applicant said that to me very directly and bluntly -there was no sign that it was a joke.

9. The Applicant then continued to talk about finance for another 10 to 20 minutes. I just sat there and listened. I was taken aback and could not believe that he said that to someone he does not really know.” 95

[79] In relation to the second incident on 10 September 2016, Person A stated:

“15. On 10 September 2016, I had customers come in about midday.

16. They wanted to purchase a Volkswagen Touareg and were wanting approval for finance.

17. I arranged for the Applicant to do their finance. After looking at the customer’s profile, the Applicant said that he could approve their finance by the end of the day. Whilst the Applicant was looking at the finance side of things, I was continuing the sales process with the customers.

18. I recall the customers were making me feel uncomfortable. I would not say that they were hitting on me, but rather they were slightly sexist and rude. They objected to a lot of the things that I was telling them about the vehicle. I would answer the questions correctly and they would just try to walk over me. I had to get Mr Howard over a number of times during the process to explain a lot of things to them that I had already explained to them.

19. At some stage through this process I went to see the Applicant about the customer’s finance. During that conversation, I said to the Applicant that I felt uncomfortable dealing with those customers and that I was frustrated with them. The Applicant then said to me: “Just show them your tits, you will be fine.” I was taken aback, but at the time I said “No” and I laughed because I knew that was the kind of person the Applicant was. However, I knew immediately that what the Applicant had said was inappropriate and that he could not say things like that to me.

20. The customers finished the finance process with the Applicant directly, and they were in the room with the Applicant for a while going through that process. By that stage I was sitting with Mr Twentyman and his partner Ms Cassie Mocker. I told them about the customers and then what the Applicant had said to me, and I explained that I was frustrated that I had to deal with the attitude from the customers, and then that type of response from the Applicant.

21. I remember that at that stage I was just talking to them generally about what happened. The general tone of the conversation was that what the Applicant said was unacceptable. I waited for about another hour for the customers to finish with the Applicant. The Applicant and I were the only employees left at that stage.

22. The customer left and the Applicant went back into his office. I said goodbye to the Applicant and I left for the day…

…

“27. In terms of the Applicant’s version of events about what happened on 10 September 2016, I generally agree with what he says in his email, however again, I must emphasise that he definitely did say to me the words that I have set out in 19 of this Statement.” 96

[80] The Applicant argued that if Person A was offended and affected by the comments, as alleged in the second incident, he stated her conduct on the morning of 12 September 2016, was inconsistent with the allegations she had made against him. Person A stated:

“28. …whilst I do not recall talking to the Applicant on the morning of 12 September 2016, I agree I would have said hello to the Applicant when I came in the following morning as I was not offended to the point where I would not say hello to him and that is something that I do with everyone that I see each morning.” 97

[81] When further cross-examined on responding to the Applicant in this manner, Person A described her demeanour, stating, “I am quite a cheery person, I will say hello to everyone in the dealership. Even if I do have bad blood with people I'm not the sort of person to turn my back on people or be rude. So I would have said “Hello” and I would have been nice.” 98

[82] The Applicant was cross-examined in relation to the second incident:

Mr Merrell: You knew that [Person A] was involved in trying to sell such a vehicle, or trying to sell a vehicle to that customer?

Mr Parker: I do believe she was involved, yes.

Mr Merrell: You knew it was her sale because Mr Howard told you that?

Mr Parker: I believe Mr Howard handed the sale over to her, possibly.

…

Mr Merrell: Mr Howard then said to you that he was going home but [Person A] - or [Person A] would stay back as it was her deal or her sale?

Mr Parker: I can’t specifically remember the her [sic] deal, her sale part, but I remember that he did tell me she’d be staying back to finalise the sale.

…

Mr Merrell: I suggest to you, at the time that she returned the deal pack to you there was only you and her in your office?

Mr Parker: There was a time, I'm sure, around that period, yes.

Mr Merrell: And this was at a time getting close to around about 5 pm?

Mr Parker: It was late in the afternoon, yes.

Mr Merrell: [Person A] said to you that she felt uncomfortable dealing with the customer and her friend because she was frustrated with them?

Mr Parker: I believe the words she used was they were hitting on her.

Mr Merrell: Didn’t she say to you that the customer's friend was hitting on her?

Mr Parker: That’s correct, and Mr Black, I believe, who was wearing a black shirt.

Mr Merrell: When she said that the customer’s friend was hitting on her, you said to her these words: “Just show them your tits. You'll be fine”?

Mr Parker: No.

Mr Merrell: Mr Parker, I suggest that you said that to her with the intention to offend [Person A]?

Mr Parker: No, I did not.

Mr Merrell: You said that to her with the intention to intimidate her?

Mr Parker: No, I did not.

Mr Merrell: [Person A] answered to your proposition - she answered with the word, “No”?

Mr Parker: That didn’t happen.

Mr Merrell: And she laughed and then walked out of your office. It didn’t happen?

Mr Parker: (No audible reply)

Mr Merrell: You have to say yes or no?

Mr Parker: Sorry, yes - no, I don’t recall that happening. 99

[83] The Applicant’s comments involving the first incident were put to Person A in cross-examination:

Mr Hogg: The threat to backhand you, that’s a pretty serious threat I suggest?

Person A: Mm.

Mr Hogg: It’s the sort of thing that would have made you feel quite uncomfortable to put it mildly?

Person A: For my third or fourth day. Maybe even my fifth day at the dealership definitely. I think, you know, being a 21 year old girl who hasn’t really worked in a professional industry before it – I definitely was taken back.

Mr Hogg: It’s the sort of thing that you'd tell somebody about if – you'd tell a supervisor about if somebody said that to you. It's the sort of thing that you’d remember pretty clearly; is that right?

Person A: That’s correct.

Mr Hogg: You’d remember the surrounding circumstances pretty clearly; is that right?

Person A: That’s correct.

Mr Hogg: But you can’t actually remember exactly when he made the statement to you; is that correct?

Person A: I wouldn't be able to remember the exact date, no.

Mr Hogg: No. You can’t even remember the exact date you started this brand new job at Cricks Automotive Group; is that right?

Person A: That’s correct.

Mr Hogg: The reason that you’re fairly vague about this is because your memory about the incident is pretty vague in general; is that right?

Person A: It was a year ago.

Mr Hogg: What I suggest to you is that Mr Parker never actually said those words to you. He never threatened to backhand you?

Person A: Everything that is said in my statement that he said to me is true and correct.

Mr Hogg: All right. You said in your statement that you spoke to Mr Andrew Howard about this the next day?

Person A: That's correct. He…

Mr Hogg: Did Mr Howard ask you to make a written complaint about this?

Person A: No. 100

[84] In relation to the second incident, Person A recalled the events during cross-examination, as follows:

Mr Hogg: You said they were making you feel uncomfortable?

Person A: They were making, I would say, sexist comments.

Mr Hogg: Could you tell us what sort of things they were saying? If you can recall?

Person A: Well, I guess, if you look in our dealership it does have lots of windows. They were making comments about being in a bikini or every single time that I would tell them some sort of information about the vehicle or how we do – proceed with our processes they would try to tell me that I was wrong, and basically go against what I was saying, and then I would have to get Andrew, who – Mr Howard, he’s my manager, to come and basically then they would accept. So they were just making quite, I would say, inappropriate comments, but at the end of the day I don't feel like you can do too much about – it was nothing that made me feel threatened, but it didn’t make me feel comfortable.

Mr Hogg: They were trying to make you feel like a dumb girl; is that right?

Person A: Yes. But I felt like it was quite sexist as well. I felt like it was probably because I was a girl and because I am quite young.

Mr Hogg: Yes. So you said they were making comments about, was it you, wearing a bikini?

Person A: Yes.

Mr Hogg: Obviously that made you feel pretty uncomfortable I would imagine?

Person A: Yes. In saying that I am the sort of person that doesn’t like confrontations, so I kind of just - cool, was professional about it. I didn’t delve into it or acknowledge it too much.

Mr Hogg: No, right. Yes. So eventually, despite all this innuendo that you had to put up with from these two men?

Person A: Mm-hm.

Mr Hogg: You managed to conclude a sale with them; is that right?

Person A: Yes. That is correct.

…

Mr Hogg: Is it fair to say that it still played on your mind the comments that these gentlemen had made to you?

Person A: That’s correct. Yes.

Mr Hogg: You spoke to Mr Parker about that?

Person A: I did.

Mr Hogg: You said they were making you feel uncomfortable?

Person A: Yes.

Mr Hogg: Did you say that one of them was hitting on you?

Person A: No.

Mr Hogg: Did you feel that one of them was hitting on you?

Person A: Potentially but in saying that, like I said, I didn’t really take it in that kind of way. They did make me feel uncomfortable, yes, but I did try to dismiss it.

Mr Hogg: So you said to Mr Parker something along the lines of, “These gentlemen are making me feel uncomfortable”?

Person A: Yes. Yes.

Mr Hogg: I'm sure you probably didn’t call them gentlemen but anyway?

Person A: No.

Mr Hogg: So then Mr Parker said to you something along the lines of, “Just send them in to me when they get back and you will be fine”?

Person A: No.

Mr Hogg: Or he might’ve said to you, “Just give them the keys when they get back and you'll be fine”?

Person A: No.

Mr Hogg: Is it possible that Mr Parker said something along those lines to you?

Person A: No.

Mr Hogg: Is it possible that you had in your mind all these comments of a sexual nature that the gentlemen had been making to you over the course of a number of hours at the dealership?

Person A: Mm-hm.

Mr Hogg: And so you were particularly sensitive to comments of that kind?

Person A: No, I wouldn’t say so. I have a very clear and vivid memory of that day.

Mr Hogg: The customers did return though, didn’t they, with the payslips?

Person A: Yes.

Mr Hogg: You did give them the keys, didn’t you?

Person A: I would’ve given them the keys because they had purchased the vehicle but that would’ve been after their finance has been approved.

…

Mr Hogg: So the customers are in with Mr Parker; they’ve got their keys. What are you doing at this time? Are you sitting down?

Person A: Just doing work in my office which is at the other side of dealership.

Mr Hogg: What time was this? This would’ve been about between 5 and 5.30; is that correct?

Person A: That is correct. It was after hours.

Mr Hogg: Did you have a car at the – did you drive to work?

Person A: Yes.

Mr Hogg: So you could’ve left earlier than that if you needed to?

Person A: Yes, if I needed to, but our process is that I do need to stay there for customers to say good bye. That’s the professional thing to do.

Mr Hogg: But if they were making you feel uncomfortable by making sexual comments then you probably could have been excused?

Person A: They weren’t making – I wouldn’t say they were making sexual comments. I would say they were making sexist comments.

…

Mr Hogg: You said you could have left the dealership but the reason that you stayed was you said because you wanted to be professional?

Person A: Yes.

Mr Hogg: But also because you weren’t too - Mr Parker’s comment didn’t make you feel too uncomfortable, so uncomfortable that you didn’t want to be there with him. Is that right?

Person A: I would say that it was something that Mr Parker would say and yes, it did make me feel uncomfortable but again I’m not the sort of person that likes confrontation. It's a part of my job to be there.

Mr Hogg: And you said you laughed after he made the comment, is that right?

Person A: Yes I did.

Mr Hogg: Because you didn’t take it seriously, you didn't think he was - - -?

Person A: I said in my statement that yes, I laughed or I said “No” and then I laughed and as I was walking away I sort of thought “Hang on a minute. That’s not right” after I’d correctly registered what he’d said. I realised, you know, and Mr Parker and I have no - in no means been friends throughout. Obviously work colleagues. In saying that, you know, potentially a friend may have said that. I don’t think that a work colleague would have. But the fact that Mr Parker and I had in no way been close or been friends or - I feel like he stepped a boundary.

…

Mr Hogg: I'll let you finish?

Person A: Again like I said, I don’t like confrontation. I’ve never been the sort of person to smack my problems in the face like that, you know. I can't turn around and say “Hang on a minute”. It’s not the sort of person I am unfortunately.

…

Mr Hogg: When you came to work that Monday morning you went in and saw Mr Parker, didn’t you?

Person A: I do not recall.

Mr Hogg: Is it possible that you went and saw him and spoke about your weekend?

Person A: Potentially - no, potentially about work. I am quite a cheery person, I will say hello to everyone in the dealership. Even if I do have bad blood with people I’m not the sort of person to turn my back on people or be rude. So I would have said “Hello” and I would have been nice… 101

[85] The Applicant’s written response to these allegations was set out his email dated 13 September 2016. It is acknowledged that the allegations were put to the Applicant at the same meeting where the Respondent conveyed that, “[b]oth incidents are deemed unacceptable and will result in your instant dismissal for Gross Misconduct.” This was a significant procedural flaw. An appropriate investigation should have been conducted and the Applicant given an opportunity to respond in a procedurally fair manner and for the Respondent to consider such.

[86] With regard to the evidence of the Applicant and Person A on the alleged incidents, Person A provided her evidence in a straightforward manner. She presented as a reliable and credible witness. She also presented as an intelligent, young woman, concerned with the situation that had arisen. The allegations and discussing such at the hearing, caused embarrassment to Person A. There was no arguable reason raised by the Applicant or otherwise, for Person A to manufacture the incidents.

[87] There were issues of credit with the Applicant’s evidence concerning his response to the allegations, issues in his prior employment history with the Respondent and his previous interactions with other employees at work.

[88] The series of text messages exchanged between the Applicant and Mr Holden indicated that Mr Holden’s management of the Applicant required some balancing of continually, encouraging the Applicant’s performance, however also checking his ambition and conduct. An example of these exchanges occurred on 20 August 2016. Mr Holden, in response to a text message from the Applicant, stated, “Thanks Phil. Appreciate your good behaviour and Teflon again.” 102

[89] During cross-examination, Mr Holden explained, “the word “Teflon” was used as a – well, Teflon stuff doesn’t stick to it, and what I was trying to mentor and teach Phil was to, if he was always Teflon he was never getting into trouble. So I used to always say “be Teflon, then none of this trouble comes around you”.” 103 It was accepted by the Applicant that there had been a number of exchanges and he had viewed Mr Holden as a, “mentor.”104 The Applicant had engaged with him, regarding his resignation.

[90] The Respondent referred to a range of incidents that demonstrated the demeanour of the Applicant in the work environment.  105 With reference to one of the incidents, on 12 July 2016, Mr Holden noted that the Applicant was walking in late to a business manager’s meeting, without providing prior notice.106 It was put to the Applicant that, “[y]our immediate response to Mr Holden in front of all your Business Manager colleagues was this “Don’t light me up or I'll light you right back up again”?,” to which the Applicant replied, “I don’t believe that’s the exact phrasing that I used.”107

[91] Counsel for the Respondent also referred to the Applicant’s previous interactions with Mr Stankiewicz. It was put the Applicant that he had applied for Mr Stankiewicz’ position of, “Cluster Business Manager,” however was unsuccessful. The Applicant subsequently sent an email to Mr Stankiewicz stating that he did not agree with his engagement. Mr Stankiewicz suggested that they discuss the matter with Mr Bohner on the following Monday, however the Applicant instead raised a formal grievance regarding his appointment, with Messrs Bohner and Holden the same day. 108 The Applicant’s evidence regarding Mr Holden’s conduct was not borne out and was inconsistent with his reliance on Mr Holden.

[92] In terms of the Applicant’s obvious ambition to progress his career, it was put to the Applicant during cross-examination that he had changed, without authorisation, his position title (as per his email footer) from, “Business Manager,” to, “Senior Business Manager,” during the course of his employment. Whilst the Applicant initially stated that he did not unilaterally alter the title on his email signature, 109 he later conceded he had changed the title on his email signature to, “Senior Business Manager”. The Applicant, without a proper basis, stated he had only changed the title after receiving an email from Mr Holden, to that effect, to “keep my employer happy.”110

[93] The email from Mr Holden to the Applicant dated 18 July 2016, demonstrated the assistance provided to the Applicant, in the management of his career progression and stated:

“Thanks for your email and heads up regarding your meeting with Garry.

Hope the meeting went well for you.

In regards to career progression on paper Phil I am not exactly sure what your chasing. The title change I discussed with you but didn’t really matter what I thought you did it anyway “Senior Business Manager” so again not sure what you want from me here.

Time frame wise Phil for career progression is what it is, and the reason for this is the group needs to see you settle in and get results to have some kudos that deserves it and with no dramas attached. I have had more dramas with you in the last 5 months than any other business manager related to other staff. You are great as a go to person for some of the junior staff and I have appreciated the additional help, but sometimes the good gets damaged by the dramas.

The year on year income drop is no fault of mine Phil, I brought you back in at your request if I remember rightly and you had not been in our group for 7 months so I am not too sure how you are comparing that against a year where you worked full year Vs 6 months with us. Wises Rd has been a cracking Dealership with a great income potential that yes, there was an issue with transition of a new DP but also you had your issues there as well. Now VW which even by your own admission is a great chair with excellent earning potential in a brand new Dealership and you have not even worked a full month there yet?

I brought you back in after Keema drama at your request which was that you didn’t care where it was you just wanted back into the group. Then you said you didn’t want to live in Brisbane and if you could escape to Sunny Coast that would be your preference which I sorted.

You have had nothing other than opportunities laid at your feet Phil. I have been mentoring you in regards to how to conduct yourself better within a management way like not sending hot headed emails and thinking about what you do and say before you do, brought you into an interview at your request so you could learn and also gave you the chance to attend another one that you didn’t get too. I have put out fires and given you the heads up about dramas and protected you in hope that you are learning lessons of the things I wanted you to stop doing in the hope that you would be noticed for the good acts not the bad acts.

If you think that I am holding up your career progression Phil maybe you need to ask is it me holding you up or is it you? If you wish to part company and go fourth in the hope of landing a group role I will never stand in your way Phil. The decisions I make are largely based on my experience and what I feel is required to promote someone Phil along with senior management backing. Yes, I do bounce my ideas and thoughts of John and Garry in many instances to make sure I am sound in my direction.

So here is how I see it Phil, I don’t think it matters what I can do for you as I don't believe you will be happy as when I look back on what I have already done and given you some additional kudos and seen how that pans out there is a sense of entitlement that you deserve more yet based on behaviour you have shown I fail to see how I can give you more. Hence why I was giving you the opportunity to settle down, get on with a team, get results and get noticed by others other than me for all the right reasons. When this happens Phil it’s amazing how many people put their hand up and say hey can I have that person please. There is sometimes an internal banter over the best people in our group by the DPs at their meetings. Wouldn’t it be nice if your name was one of those? I have been trying to guide you Phil but I am not too sure you can be guided by me anymore so I have to leave this one up to you. If you want my help and advice in career progression then there it is. Do what I have requested and I will certainly do my part as I have since I brought you back in. If you can't or don't want to then I guess we both know the end game and yes as you said we can part company on good terms.

I don’t believe I can do any more than that Phil so the choice is now over to you.

When you’re on song your great to have around and on the team and certainly your results when your firing are fantastic Phil and I would like to have you stay but maybe you need to think if we are right for you…

Take your time to respond to this email Phil as I believe you should read it a few times before you do.

Regards,

Don Holden” 111

[94] On 1 September 2016, the following text message exchanged occurred between the Applicant and Mr Holden:

Mr Parker: Thank-you. John just stopped in and had a lot of good things to say. I appreciate it very much.

Mr Holden: I will call you back in ten. Is it urgent?

Mr Parker: No just wanted to say thank you.

Mr Holden: Do you believe me now when I said eyes are watching in senior management?

Mr Parker: Yeah unfortunately no more Phil butt who no one is watching. Have to perform and behave. 112

[95] The evidence of Messrs Holden, Stuart, Howard and Bohner was provided in a transparent manner, as managers, endeavouring to deal with the Applicant’s comments in a straightforward and reasonable way. They did not hold expertise in industrial relations or human resources.

[96] On the balance of probabilities, taking into account the evidence, the two alleged incidents occurred as stated by Person A in her evidence, provided a valid reason for the Applicant’s dismissal.

(b) whether the person was notified of that reason; and

[97] The Applicant was sent a calendar invite for the meeting on 12 September 2017, which stated, “Phil please make yourself available for a meeting at 5pm. We will be discussing your recent behaviour and how it pertains to your employment with our organisation. Should you wish to bring someone along as a witness to these discussions then you are more than welcome to.” 113

[98] The Applicant was formally notified of the allegations in writing on 12 September 2016. It has been taken into consideration that the allegations were put to him at the same meeting where he was provided with correspondence referring to the termination of his employment.

[99] Whilst a determination was conveyed in the correspondence, at that stage an investigation of the incidents had not occurred. It is recognised both of the comments were raised by the Respondent with the Applicant on 12 September 2017, after the second incident had occurred. This did not afford the Applicant an opportunity to provide a timely response to the first incident that occurred in mid July 2016.

[100] Person A had, however raised the first incident with the Respondent after it occurred. The evidence of Person A was:

“12. The following day, and first thing in the morning, I spoke with my manager Mr Andrew Howard (Mr Howard) and I told him what happened. Mr Howard told me that he would take it to management. I am aware that he did that. A few days later, I was over at the Sugar Road dealership, when Mr Rob Stankiewicz pulled me aside and apologised to me about the incident.

13. That was the last I heard about the incident.

14. At that point I was satisfied that the incident had been dealt with by the Respondent.” 114

[101] The Respondent did not raise this incident with the Applicant at that time. He was not notified of the first incident until the meeting on 12 September 2016. The Applicant was denied procedural fairness in not being afforded the opportunity to respond to the first allegation at the time it was alleged to have occurred. Further, the allegations were not put to the Applicant first to allow his response and therefore, the Respondent to consider the outcome.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

[102] The Applicant attended a meeting with the Respondent on 12 September 2016, where he was handed a letter and requested to respond to the two allegations. The letter dated 12 September 2016 provided the Applicant with the opportunity to respond in writing to the allegations.

[103] As set out, the Applicant’s opportunity to respond was provided in conjunction with the correspondence that set out that the conduct warranted dismissal. The Applicant provided a written response to the allegations on 13 September 2016.

[104] The process was procedurally flawed, however taking into account all of the evidence (including the Applicant’s further evidence at the hearing), this would not have affected the finding of a valid reason for dismissal.

(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

[105] The Applicant was informed that he was entitled to have a support person present at the meeting on 12 September 2016. 115

(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

[106] The dismissal related to the Applicant’s conduct in making the comments to Person A. The Applicant had agreed he had been trained in the relevant policies regarding conduct of this nature.

(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

[107] Whilst the Respondent operated a number of dealerships, they did not have dedicated human resources or industrial relations resources. The letters sent to the Applicant on 12 and 14 September 2016 reflected the absence of this specific advice in relation to the process utilised. The process as set out, was deemed to be a termination at the initiative of the employer, undertaken with some procedural deficiencies.

[108] However, the Respondent’s assessment of the alleged comments as requiring action and response was correct. The Applicant’s comments were serious, hostile, derogatory and sexual harassment, in line with the Respondent’s policy.

(h) any other matters that the FWC considers relevant.

[109] Whilst a dismissal occurred, the conduct of the Respondent and Mr Holden in particular, affording the Applicant the ability to resign and providing him with a favourable statement of service akin to a reference, has been taken into account.

[110] The Applicant, however was not provided with procedural fairness as a prior investigation was not undertaken by the Respondent nor was the Applicant given a reasonable opportunity to respond to the allegations prior to the termination of his employment. This process would have taken further time to complete.

[111] As set out, this case contains some procedural flaws that have been taken into account, in terms of the manner in which the termination was conveyed to the Applicant. The procedural flaws, however do not outweigh the seriousness of the substantive issues of inappropriate conduct.

[112] The dismissal is proportionate to the gravity of the misconduct. When the Applicant’s responses and evidence in relation to the allegations are considered against the candour and detail of the evidence provided by Person A and the objective facts of the incidents, her evidence is preferred.

[113] That the Applicant engaged in these two incidents, provided a sound, defensible and well-founded reason for the dismissal. Person A was able to provide the context and clear situational evidence surrounding the comments of the Applicant. The comments of the Applicant were not provoked in anyway and cannot be justified as responses to Person A, in any sense on the consideration of the workplace scenarios.

[114] The conduct of the Applicant was also considered, in relation the prior incidents in his employment as set out, where he had been counselled by Mr Holden.

[115] In relation to the first incident, on the balance of probabilities, taking into account the conduct of the Applicant and his perception of the importance of his status in the company, his disdain for being referring to as, “the finance guy,” correlates with this evidence. In particular, his evidence regarding his insistence on unilaterally changing his business title to, “Senior Business Manager,” when his actual title was, “Business Manager,” provided an insight into how the Applicant would have been disgruntled with Person A referring to him as, “the finance guy.” 116

[116] There is nothing improper in Person A’s reference to him by this title, considering she had been at the workplace for three or four days. There was no evidence of any intent on her part, to diminish his role. This was simply a label she used being new to the workplace and it was commensurate with the nature of the finance duties he performed. The Applicant’s remark to Person A was hostile, threatening and offensive.

[117] In relation to the second incident, the evidence of Person A is again preferred to that of the Applicant. The Applicant’s explanation and denial was not convincing. Person A was a well-presented, professional, young woman; it was obvious that she was embarrassed in recounting the interactions. Person A clearly understood that it was unacceptable, that the Applicant had used these comments. The comments represented a breach the Respondent’s sexual harassment policy. 117

[118] The conduct of the Applicant was inconsistent with a continuing employment relationship. The Applicant had disregard for the policies of the Respondent, which he had received training in.

[119] Even if the procedural issues had been rectified, it would not have changed the decision to terminate the Applicant’s employment. Given the gravity of the comments, dismissal was appropriate in all the circumstances. Taking into account the procedural flaws, a procedurally fair process allowing for an investigation and proper process of notification and response would have taken a longer period to be discharged. The termination was unfair on this basis.

[120] The impact of the dismissal on the Applicant’s personal and economic situation has been taken into account, as has the fact that he was sharing accommodation with Mr Gary Crick’s son and accordingly, the dismissal and this associated application (as set out by the Applicant), affected that living arrangement.

[121] Taking into account the Respondent’s business operating with a range of employees in an open retail space, the conduct was sufficiently serious that it required the Respondent to end the employment relationship. The decision was appropriate, particularly taking into account the nature of the business in engaging with the public. In addition, the fact that Person A was a young, female employee new to the business and the comments were sexist and dismissive of Person A’s role and there was a degree of aggressiveness in the comments, that significantly undermined an ongoing employment relationship in circumstances, where the employee had seriously breached the Respondent’s policy. The Applicant had also taped the meeting, adding to the breakdown in trust and confidence.

REMEDY

[122] Division 4 of Part 3-2 of the Act provides as follows:

“Division—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[123] Having found that there was a valid reason for dismissal, but that the termination process had procedural flaws, it is necessary to consider the appropriate remedy.

[124] The prerequisites required under ss.390(1) and (2) have been met. Section 390 provides that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. 118 The Applicant has not sought reinstatement.119 Having found that the allegations in relation to Person A have been substantiated and the relationship between the parties is not retrievable, it is not appropriate to Order reinstatement.

[125] The Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket provided the criteria for the calculation of compensation. 120 This approached was subsequently adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey35;121 Jetstar Airways Pty Ltd v Neeteson-Lemkes122 and McCulloch v Calvary Health Care.123

[126] In calculating the appropriate amount of compensation to be awarded, regard must be had to the matters in s.392(2) of the Act:

(a) the effect of the order on the viability of the employer’s enterprise; and

[127] There is no evidence that an Order for compensation would affect the viability of the Respondent’s enterprise. 124

(b) the length of the person’s service with the employer; and

[128] The Applicant was most recently employed by the Respondent between 11 January 2016 and 12 September 2016. 125

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

[129] It is considered that if the Respondent had conducted a process whereby the first allegation was put to the Applicant at an early stage (rather than several months later) and a procedurally fair process of investigation with an appropriate period for a response being afforded (not in response to the nature of the letter that was provided), the Applicant would have remained employed for an additional period.

[130] The employment relationship was not stable, the Applicant’s texts and emails, as referred to, show that the Applicant was frustrated with many of his colleagues and his lack of progression (on his terms) within the company. The Applicant’s representative considered the employment relationship would have lasted a further 10 months. 126 The Respondent assessed a further two weeks.127 It is considered that given these allegations and the issues in the employment relationship, a further three weeks would have allowed for the discharge of the proper process and brought the employment relationship to an end. 128

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

[131] In regard to these criteria, it was not in dispute that the Applicant had made attempts to mitigate his loss. 129 The Applicant had earned through intermittent employment, $30,195.00 including GST between the date of the dismissal and the end of the 2016 – 2017 financial year.130 A deduction has not been made for this income, given the additional three weeks represented compensation for the period to allow for the discharge of a procedurally fair process.

(g) any other matter that the FWC considers relevant.

[132] The Applicant was paid an ex gratia amount of $807.69 on his dismissal.

[133] The Applicant did not seek reinstatement and reinstatement was deemed not appropriate in circumstances where there was a breach of the Respondent’s sexual harassment policy and a threat of violence, particularly by the Applicant’s comment to Person A, “if you ever call me that business guy, or that finance guy, I will backhand you. I don’t care if you are a girl.” There was a loss of trust and confidence in the Applicant.

[134] In considering the appropriate amount for the award of compensation, all of the circumstances have been taken into account. The misconduct of the Applicant contributed to the Respondent’s decision to terminate his employment. It is considered that the employment relationship would only have continued for a further three weeks, taking into account this further period to allow for the discharge of the procedural steps to effect the dismissal. 131

[135] In considering the relevant amount of compensation, payslips provided for the weeks of 24 August 2016 to 12 October 2016, set out that the ordinary time gross earnings represented $807.69 and a car allowance of $118.72 paid per week. In addition, it is noted that all prior commissions earned by the Applicant had been paid by agreement between the parties on finalising the employment relationship.

[136] Further deductions for contingencies or earnings after the dismissal are not considered appropriate, given the basis for the calculation of compensation. Further to this, the parties did not disagree on the inclusion of commission payments in the consideration of calculating a weeks’ wages, 132 however there was disparity on the amounts of such. These arguments have been taken into account. The average commissions earned (since the Applicant’s recent commencement with the Respondent) are relied on.133

[137] Accordingly, this represents a total gross remuneration figure for three weeks of $8,267.10 (calculated at ordinary time gross earnings, plus car allowance, plus the average commissions earned between 13 April 2016 and 12 October 2016), less the ex gratia payment of $807.69. 134

CONCLUSION

[138] The Respondent’s correspondence of 12 September 2016 referred to the termination of the Applicant’s employment. Whilst the letter provided to the Applicant allowed him a chance to respond to the allegations by 13 September 2016, the Respondent had already considered the conduct warranted termination, prior to receiving his response.

[139] Having regard to the matters in s.387 of the Act, and in particular finding that there was a valid reason for the dismissal, that reinstatement is not appropriate and that the Applicant was not given a fair and reasonable opportunity to respond to the allegations prior to his dismissal, the dismissal process was considered to be unfair.

[140] Taking into account all of the aforementioned reasons, it is appropriate to make an Order for compensation of three weeks’ wages.

[141] The Respondent is required to pay compensation to the Applicant of a gross amount of $7,459.41.

[142] An Order [PR597712] to that effect will issue together with this decision.

COMMISSIONER

Appearances:

Mr S. Hogg of Counsel, instructed by Mr I. Hogg of Jason Nott Solicitors for the Applicant.

Mr J.W. Merrell of Counsel, instructed by Mr H. Proctor of Aitken Legal for the Respondent.

Hearing details:

2017.

Maroochydore:

7 August.

Final written submissions:

Respondent’s submission, dated 1 September 2017.

Applicant’s amended submission, dated 5 September 2017.

Printed by authority of the Commonwealth Government Printer

<Price code J, PR595167>

 1   Statement of Philip Parker dated 17 July 2017 at [5].

 2   Statement of Donald Holden dated 10 July 2017 at [8].

 3   Statement of Philip Parker dated 17 July 2017 at [13].

 4   Ibid at [38].

 5   Ibid at [39].

 6   Transcript dated 7 August 2017 at PN154.

 7   Statement of Philip Parker dated 17 July 2017 [39] – [40]; Transcript dated 7 August 2017 at PN160.

 8   Transcript dated 7 August 2017 at PN165; Statement of Philip Parker dated 7 February 2017 at [13].

 9   Transcript dated 7 August 2017 at PN188; Statement of Philip Parker dated 7 February 2017 at [14].

 10   Statement of Donald Holden dated 10 July 2017 at [18].

 11   Ibid at Annexure DH-8; Transcript dated 7 August 2017 at PN193.

 12   Statement of Donald Holden dated 10 July 2017 at Annexure DH-8.

 13   Transcript dated 7 August 2017 at PN219.

 14   Ibid at PN221.

 15   Statement of Donald Holden dated 10 July 2017 at [22].

 16   Transcript dated 7 August 2017 at PN567.

 17   Respondent’s Outline of Argument – Jurisdictional Objection dated 18 January 2017 at [2].

 18   Ibid at [9].

 19   Transcript dated 7 August 2017 at PN1104.

 20   Exhibit 11.

 21   Transcript dated 7 August 2017 at PN1263.

 22   Statement of Sam Bohner dated 17 January 2017 at Annexure SB-3.

 23   Respondent’s Final Written Submission dated 25 August 2017 at [5]; Transcript dated 7 August 2017 at PN181 – PN185.

 24   Exhibit 4.

 25   Statement of Sam Bohner dated 17 January 2017 at Annexure SB-4.

 26   Transcript dated 7 August 2017 at PN527 – PN530.

 27   Statement of Donald Holden dated 17 January 2017 at [6].

 28   Ibid at [7] – [8].

 29   Ibid at [10].

 30   Ibid at [12].

 31   Ibid at Annexure DH-1.

 32   Transcript dated 7 August 2017 at PN629.

 33   Statement of Donald Holden dated 17 January 2017 at Annexure DH-2.

 34   Ibid at [13].

 35   Ibid.

 36   Ibid at Annexure DH-3.

 37   Ibid at Annexure DH-2.

 38   [2013] FCCA 1049.

 39   Ibid at [61].

 40   Respondent’s Final Written Submission dated 25 August 2017 at [67].

 41   [2015] FWC 513.

 42   [2006] AIRC 496.

 43   [2015] FWC 513 at [16].

 44   Respondent’s Outline of Argument – Jurisdictional Objection dated 18 January 2017 at [25].

 45   Ibid.

 46   Ibid at [37].

 47   Ibid at [38].

 48   Transcript dated 7 August 2017 at PN479.

 49   Respondent’s Final Written Submission dated 25 August 2017 at [42].

 50   Transcript dated 7 August 2017 at PN630 – PN631.

 51   Ibid at PN637.

 52   Ibid at PN641.

 53   Respondent’s Final Written Submission dated 25 August 2017 at [60].

 54   Ibid at [61].

 55   Ibid at [62].

 56   Ibid at [86].

 57   Ibid at [89].

 58   Respondent’s Final Written Submissions in Reply dated 1 September 2017 at [2].

 59   (1959) 101 CLR 298.

 60   Qantas Airways Limited v Transport Workers’ Union of Australia (2011) FCA 470; Respondent’s Final Written Submissions in Reply dated 1 September at [5].

 61   Respondent’s Final Written Submissions in Reply dated 1 September 2017 at [8].

 62   Ibid at [9].

 63   Applicant’s Amended Outline of Submissions – Jurisdictional Response dated 28 July 2017 at [15].

 64   (1995) 62 IR 200.

 65   Ibid at 206 – 207.

 66   Applicant’s Amended Outline of Submissions – Jurisdictional Response dated 28 July 2017 at [16] – [20].

 67   Ibid at [25] – [27].

 68   Ibid at [28] – [29].

 69   Applicant’s Amended Outline of Submissions – Jurisdictional Response dated 28 July 2017 at [32] – [34].

 70   Ibid at [38].

 71   Applicant’s Outline of Submissions Following Trial dated 25 August at [2].

 72   Ibid at [4].

 73   ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB,

Munro J, Duncan DP, Merriman C, 9 December 1996).

 74   Applicant’s Outline of Submissions Following Trial dated 25 August 2017 at [6].

 75   Ibid.

 76   Ibid at [97].

 77   Ibid at [99].

 78   [2013] FCCA 1049.

 79   Applicant’s Amended Submissions in Reply dated 5 September 2017 at [4].

 80   Ibid at [5].

 81   Ibid at [6], [8].

 82   Concannon v Portland District Health [2015] FWC 513.

 83   Ibid at [14] – [16].

 84   Respondent’s Final Written Submission dated 25 August 2017 at [28].

 85   Transcript dated 7 August 2017 at PN629.

 86   Respondent’s Final Written Submission dated 25 August 2017 at [89].

 87   Transcript dated 7 August 2017 at PN761.

 88   Transcript dated 7 August 2017 at PN1490 – PN1503.

 89   Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 90   Davidson v The Commonwealth of Australia [2011] FWA 3610.

 91   Statement of Sam Bohner dated 17 January 2017 at Annexure SB-3.

 92   Ibid.

 93   Ibid at Annexure SB-1.

 94   Ibid.

 95   Ibid at [4] – [9].

 96   Ibid at [15] – [22], [27].

 97   Ibid at [28].

 98   Transcript dated 7 August 2017 at PN1102.

 99   Ibid at PN410 – PN430.

 100   Ibid at PN1010 to PN1019

 101   Ibid at PN1029 to PN1102.

 102   Statement of Philip Parker dated 7 August 2017 at page 25.

 103   Transcript dated 7 August 2017 at PN895.

 104   Ibid at PN225.

 105   Ibid at PN115 – PN134.

 106   Ibid at PN258.

 107   Ibid at PN270; Ibid at PN115 – PN134.

 108   Ibid at PN392 – PN401.

 109   Ibid at PN324.

 110   Ibid at PN329.

 111   Statement of Donald Holden dated 10 July 2017 at Annexure DH-9.

 112   Exhibit 8.

 113   Statement of Sam Bohner dated 17 January 2017 at Annexure SB-2.

 114   Statement of Person A dated 17 January 2017 at [12] – [14].

 115   Statement of Sam Bohner dated 17 January 2017 at Annexure SB-2.

 116   Transcript dated 7 August 2017 at PN330 – PN333.

 117   Statement of Donald Holden dated 10 July 2017 at Annexure DH-7.

 118   Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 17; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; Thinh Nguyen and anor v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter [2014] FWCFB 7198.

 119   Respondent’s Final Written Submission dated 25 August 2017 at [118].

 120   (1998) 88 IR 21.

 121   [2013] FWCFB 431.

 122   [2014] FWCFB 8683.

 123   [2015] FWCFB 2267.

 124   Respondent’s Outline of Argument – Non Jurisdictional dated 10 July 2017 at [32].

 125   Ibid.

 126   Applicant’s Outline of Submissions dated 28 July 2017 at [41].

 127   Respondent’s Final Written Submission dated 25 August 2017 at [132].

 128   James Jones T/A The Pet Cemetery & Crematorium v Ms Raquel Ciuzelis [2015] FWCFB 84; McCulloch v Calvary Health Care Adelaide [2015] FWCFB 873 at [27] – [30].

 129   Statement of Philip Parker dated 7 February 2017 at [235]; Transcript dated 7 August 2017 at PN28.

 130   Transcript dated 7 August 2017 at PN30.

 131   McCulloch v Calvary Health Care Adelaide [2015] FWCFB 873 at [27] – [30].

 132   Respondent’s Final Written Submission dated 25 August 2017 at [130].

 133   Ibid 2017 at [127].

 134   Statement of Donald Holden dated 10 July 2017 at Annexure DH-11.