[2017] FWC 4188
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Andrew Saunders
v
CSL Limited T/A CSL
(U2017/798)

COMMISSIONER WILSON

MELBOURNE, 14 AUGUST 2017

Application for an unfair dismissal remedy.

[1] Mr Andrew Saunders was employed by an operating division of CSL Limited, Seqirus, between 20 July 2015 and 19 January 2017. During the period of his employment Mr Saunders worked as a Brand Manager in the company’s Commercial Operations Department. He was dismissed for reasons of allegedly unapproved and unsubstantiated absences as well as alleged failures to comply with lawful directions to attend certain meetings in January 2017.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Mr Saunders’ application was lodged with the Fair Work Commission within the 21 day period for making such applications; that, subject to the note below, at the time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[3] In relation to the matter of whether Mr Saunders was a person protected from unfair dismissal, it is noted that at the time of his dismissal on 19 January 2017 his total remuneration, including superannuation was an amount of $173,041 per year. Mr Saunders asserts that his employment was subject to an enterprise agreement which was conceded by CSL in its initial response to the Commission in which it was stated that Mr Saunders employment was covered by the bioCSL Enterprise Agreement 2015. 1 CSL did not contest the situation in the hearing or that Mr Saunders is otherwise not a person protected from unfair dismissal. Accordingly, this decision is made on the basis that Mr Saunders was a person protected from unfair dismissal at the time of his termination of employment.

[4] For the reasons set out below I find that Mr Saunders’ dismissal was unfair; that reinstatement is not appropriate in the circumstances; however that an order for compensation should be made.

BACKGROUND

[5] Mr Saunders commenced employment with CSL Limited in July 2015 having worked in the pharmaceutical industry as a sales representative since about April 2002. His work with CSL in the capacity of Brand Manager in a division of CSL Ltd named Seqirus. For the purposes of context, the work of Seqirus is described in the CSL Outline of Submissions as follows;

“Since November 2015, Seqirus is a subsidiary business under the CSL Group which operates the Respondent’s influenza vaccines. Seqirus predominantly manufactures influenza vaccines using both egg-based and cell-based technologies. Seqirus is a leading provider of in-licensed vaccines and specialty pharmaceuticals. It also manufactures and markets diagnostics for immunohematology laboratories and is the sole supplier of a unique range of products made in the national interest for the Australian Government, including antivenoms and Q fever vaccine.” 2

[6] For the purposes of consistency in this decision, the Respondent is referred to as CSL, except where a document refers to the business unit, Seqirus.

[7] Mr Maurice Addison, solicitor, was granted permission to represent Mr Saunders, pursuant to the provisions of s.596(2)(a) of the Act, with the Commission being satisfied that a grant of permission to him would enable the matter to be dealt with more efficiently, taken into account its complexity; and s.596(2)(c) which allows consideration that an unfairness may arise to a person taking into account the circumstances of both parties. Ms Melini Pillay, solicitor from the Ai Group Workplace Lawyers appeared for CSL, appearing pursuant to the provisions of s.596(4) of the Act, which allows the representation of persons by a lawyer who is an employee of an organisation that is representing the person.

[8] Evidence was given in this matter by Mr Saunders, who was the only witness on his behalf and, on behalf of CSL, Danielle Dowell, the company’s Commercial Director for Pharmaceuticals, and Susan Jackel, the Seqirus Employee Relations/Industrial Relations Manager. Ms Dowell has worked for CSL since 2011, and held her current position since 2012. Ms Jackel has only been employed by CSL since 26 September 2016.

[9] Evidence was not given either by Mr Saunders’s manager Mandi Robertson, who he accused of bullying him, or by the person who investigated his bullying complaints, who is an employee of another company the Papillon Consulting Group.

[10] Mr Saunders’ starting salary was a total employment cost of $168,000 per year. As well as his employment being covered by the BioCSL Enterprise Agreement 2015, it was also subject both to terms and conditions set out in an offer of employment and a Deed Poll dealing with a matter of confidential information. The letter of offer concedes that the terms of any legislation or industrial instrument will prevail in the event of an inconsistency. 3

[11] According to the payslips received by Mr Saunders his “award” classification was “bioCSL Level 6”, which is a classification appearing in the bioCSL Enterprise Agreement 2015.

[12] Mr Saunders’s letter of offer referred to his employment being subject to a probationary/qualifying period for the first six months of his employment. During that period both he and the company “will assess the suitability of continuing your employment”. 4

[13] As Brand Manager, Mr Saunders’ direct manager was Mandi Robertson, Marketing Manager, who in turn reported to Danielle Dowell, CSL’s Commercial Director for Pharmaceuticals.

[14] Mr Saunders duties as Brand Manager are set out within a position description as follows:

“Summary of Role:

• The Brand Manager will develop and implement marketing plans in collaboration with the brand team. The brand manager will be responsible for the profitability of the key products within the portfolio.

Reporting Structure:

• The position reports to the Marketing Manager

Responsibilities:

• Drive profit growth of the key products within the portfolio

• Develop and execute marketing strategies for the key products in the portfolio

• Evaluate performance based on agreed KPIs

• Develop and implement high quality marketing plans within the bioCSL budgeting time lines

• Understand customer needs and market issues and opportunities through market analysis and formal market research

• Work with external agencies to design and execute high quality promotional programs

• Accurately forecast stock requirements for all products in the portfolio

• Strengthen bioCSL relationships with KOLs in the key therapeutic areas

• Manage promotional expense budget

• Manage relationship with key customers internally and externally

• Manage strategic relationships with in-licensing partners by understanding key issues and opportunities with the Distribution Agreement

• Provide analysis of sales and market data on a monthly basis for bioCSL and partners

• Produce and deliver promotional materials required within timelines

• Effectively communicate clear objective, key strategies and product messages to sales team as required

• Ensure promotional materials comply with the Medicines Australia Code of Conduct and are produced in accordance with bioCSL copy approval process”  5

[15] Having commenced with CSL in July 2015 Mr Saunders employment came under some pressure from mid-2016. His evidence records that there were problems with his relationship with Ms Robertson from at least September 2016. Ms Dowell’s evidence was that she had misgivings about Mr Saunders during his probationary period, that she and Ms Robertson had lengthy discussions on the subject, and that Ms Dowell was more of the opinion that Mr Saunders was not suitable for the role but “that is not to say that he would not be good in other roles just that he was not right for this role”. Even so Mr Saunders was passed in his probationary period. 6

[16] By March 2016 Ms Dowell had formed the opinion that Mr Saunders’ performance was “doing worse”. She was concerned about an impending product launch in September 2016. 7 The sales team was engaged in June 2016 and by July 2016 Ms Dowell recollects that she had formed the view that Mr Saunders had not engaged well with the sales team which was “a necessary and key requirement of his role”.8 Ms Dowell’s evidence is that at some unspecified time during this period she encouraged Ms Robertson to engage with Mr Saunders through weekly catch up meetings and asked that he complete a work in progress report for the meeting which was in turn reviewed by Ms Dowell in her meeting with Ms Robertson. She formed the view that Mr Saunders had an inability to meet his position objectives on his own and further that it “was never a good sign that he took issue” with being asked by Ms Robertson about his progress against objectives.9

19 – 24 August 2016

[17] Allegations made to Mr Saunders by Ai Group Workplace Lawyers, the solicitors acting for CSL, in November 2016 put forward that on 19 August 2016 Mr Saunders participated in a meeting with Ms Robertson and a person from the company’s human resources department and that the subject of that discussion was his work performance. The same allegations put forth that at the conclusion of a further meeting on 24 August that Mr Saunders was provided with something referred to as a “Stage 1 Counselling email and Action Plan” which sought changes in his work performance;

“On 19 August 2016 Mr Saunders participated in a meeting with Ms Robertson, his direct Manager and Ms Murnane, HR Business Partner on his performance. That meeting was followed by further meetings on 23 August and 24 August. At the conclusion of the meeting on 24 August 2016, Mr Saunders was provided with a Stage 1 Counselling email and Action Plan, for 3 months. There were a number of areas he was asked to address his performance these include:

[18] According to the bioCSL Enterprise Agreement;

“There are four potential stages to bioCSL's approach in dealing with unsatisfactory performance or behaviour which are to be carried out in accordance with bioCSL policy, they are:

Stage 1

The employee is to be provided with an explanation of the unsatisfactory work performance or behaviour and be given an opportunity to respond. The employee is to be advised what must occur to remedy the problem(s) and be given a reasonable period for improvement.” 11

6 September 2016

[19] Mr Saunders’ evidence is that by September he was considering making an allegation of workplace bullying against Ms Robertson and that he discussed that prospect with colleagues and as a result of his consideration made a formal complaint to the company’s human resource department on this subject in September 2016. 12 Later correspondence from CSL to Mr Saunders advising him about the findings made in response to his complaints advises that the initial complaint was made on 6 September 2016.13 Mr Saunders’ evidence is that after his original complaint had been made that the Papillon Consulting Group (Papillon) was appointed by CSL to investigate the maters he had raised. Following discussion of the matters with him, he agreed with Papillon that the allegation should be reduced somewhat and recast as a total of 19 allegations, which were then the subject of investigation. Correspondence before the Commission indicates that the 19 allegations were confirmed by 21 September 2016 and that they are in the following form:

“STRICTLY CONFIDENTIAL

21 September 2016

My name is Andrew Saunders and these are my allegations against Mandi Robertson. I allege that:

1. On or around 2 February 2016 Mandi asked me if I had not selected Jacqui because I was a "fatist". When asked Mandi what a fatist was, Mandi replied words to the effect, "I don't like fat people - so I am a fatist. They don't have to be fat, they choose to be that way, because they are lazy".

2. On or around 23 June 2016 during an Acarizax promotional material meeting when Phil Jenkins mentioned that he didn't know I smoked, Mandi commented words to the effect, "If I knew he was a smoker I would never have hired him".

3. In response to my helpful comments on an email sent by Mandi at 15:53 on 20 January 2016 requesting information, Mandi responded to all addressees that the email was only for those participants in a teleconference and was for my information only. Further, Mandi unnecessarily capitalised my name in her response.

4. In the continuing email exchange (see 3 above), at 10:53 on 21 January 2016, Mandi diminished and demeaned my role by not commenting on Jill Allen's request, "Can you please invite Marcie rather than myself as she is across the details".

5. In response to a chain of emails including an email written by Mandi at 8:57 PM on 8 August 2016, I provided a graphic by email at 8:33 on 9 August 2016, for clarification. The following day, Mandi spoke to me asking me why I had replied to an email on which I was a Cc: addressee and said words to the effect, "You should only reply to an email when you are specifically asked something" and, "This is another example of you being distracted and taking you away from what you should be focussing on".

6. On 11 August 2016 at the WIP meeting with Mandi, when shown the feedback on my performance at the marketing day at the National Sales conference, Mandi commented, "ummm, yep, yep, yep, yep, yep. What you need to do when the team comes back in a few weeks is to ensure the energy is maintained".

7. On 12 August 2016 at the WIP meeting with Mandi, when I commented about feedback, Mandi replied, "How old are you, you are acting like a child. It makes me physically sick sitting here and hearing you think you have a good job after everything you have put these people through to get material approved. And you still haven't apologised. I am owed an apology, and the others are owed an apology by you. You should not be feeling happy because of what you have done and the misery you have caused to the lives of the people you work with and their families. People are miserable because of you".

8. In relation to a meeting with an external HCP, Mandi told me on 16 February 2016, "You are unable to recognise the verbal signs and body language of our customers. The HCP was obviously uncomfortable and not interested in the information you were providing". Mandi also told me the HCP was not listening to me and was more interested in what she (Mandi) was saying about BEACH data".

9. On 4 February 2016 when I advised Mandi that I could not recall a conversation which Mandi was asserting we had, Mandi commented that there was something wrong with my memory, questioned me about the possibility of me having Alzheimer's and suggested I go to a doctor for testing (in relation to my memory).

10. At a team meeting on 25 August 2016, in relation to checking my pigeon hole, Mandi said to me, words to the effect, "Andrew, you need to check these things".

11. Further to me placing a note and a number of responses into Mandi's pigeon hole on 29 August 2016, at a team meeting on 1 September 2016, Mandi asked, "Why would you take all those return mailers and put them in my pigeon hole, I never check my pigeon hole so you are lucky I was walking past to see if you had actioned my request". When I attempted to respond, Mandi cut me off saying, "Andrew just put them in my office; how hard is it to do that?"

12. Mandi excluded me from a SAS/APM working project group (originally created by me) which utilised presentation materials (created by me) and which met without my knowledge. When the first box of Acarizax was sent to patients, Mandi sent an email thanking around a dozen staff however I was excluded from the email. When I asked Mandi about not being included, Mandi responded, "Why would I be thanking you? This was started well before your time".

13. Mandi excluded me from the Acarizax/Sigma Pharmaceuticals plan, my initiative, when she removed me from meetings and managing external ~ relationships. Mandi has not given me any credit for the projects (training, stocked in 60 pharmacies at launch etc.) completed by me.

14. Mandi excluded me from the national sales conference dinner (my initiative for a team activity) arranging for me to rehearse with Dani Trum instead. It transpired that Dani Trum was aware that I was to rehearse with Dani Dowell, Director Commercial Operations Pharma, however I was not made aware until I was required to rehearse with Dani Dowell.

15. On 23 August 2016, Mandi hand delivered a laminated copy of the "Zax Team Values" to team members, however she excluded me by not giving me a copy.

16. On or around 26 July 2016 Mandi, in reference to a job which required Zinc approval, shouted out, "What is Andrew writing now, does he even know what he writes?" Further, Mandi failed to take appropriate action when Grace commented, "yeah I don't even pass on half the things he writes to the agencies".

17. Mandi failed to keep confidential, as instructed by HR, information provided by me at a meeting with Mandi and HR on 23 August 2016.

18. During my IPM review, Mandi stated that I had not achieved half the things the other brand managers were completing. This is unreasonable given the Zinc approval system notes (as at 14 September 2016): Acarizax 137, Palexia 123, and Zostavax 90.

19. Mandi has inappropriately blamed me for Acarizax promotional material not being ready on time (i.e. for the Sales Conference) and used this excuse at every opportunity when something does not go to plan. In June 2016, Mandi advised the earliest and latest possible dates for ARTG listings were 6 August 2016 and 31 August 2016 respectively. As 6 August was a Saturday I decided to use 3 August as the earliest possible launch date. The product received approval 3 August 2016. The Sales Conference was held during the week commencing 25 July 2016. The promotional material ought not have been ready or trained prior to the product approval date of 3 August 2016. The timelines as recorded in my IPM were met.” 14

[20] Ms Dowell’s evidence is that at about the same time she became Mr Saunders’ direct manager:

“After he made the complaint, given the nature of the complaint, Human Resources and I determined that it would be most appropriate that I become the primary contact with Andrew. He stopped having any direct contact with Mandi.” 15

[21] Mr Saunders evidence is that this never occurred. His evidence was that he was never told that the reporting line had changed and does not agree that he stopped being managed by Ms Robertson.

20 October 2016

[22] On 20 October 2016, Mr Saunders was informed that the investigation that had been undertaken by Papillion had been completed. The entirety of the communication to him was set out in a letter in the following terms;

“Private and Confidential

Dear Andrew,

I refer to my discussion with you on 20 October 2016; also present was Janelle Murnane, HR Business Consultant.

On 6 September 2016 you made a complaint regarding the conduct of Ms Mandi Robertson. Papillon Consulting Group was engaged by Seqirus Pty Ltd (Seqirus), to conduct a workplace investigation into your complaint. Attached to this letter is a list of the allegations that you made against Ms Robertson.

Findings:

Papillon Consulting Group made the following findings regarding the allegations that you made against Ms Robertson:

• The following allegations were substantiated - Allegations 1, 2, 3, 4, 5, 6, 7, 10, 11, 12, 15, 16 and 17.

• The following allegation was found to be substantiated in part- Allegation 9.

• The following allegations were unsubstantiated- Allegations 8, 13, 14, 18 and 19.

CSL considers that Ms Robertson's conduct related to Allegations 1, 2 and 16 was not consistent with its Diversity and Workplace Behaviour Policy.

Next steps:

1. A discussion will be held with Ms Robertson regarding the outcome of this investigation and where appropriate action commenced.

2. We encourage you to use the services of our confidential EAP service OPTUM, they can be contacted on 1300 361 008.

As discussed, this is a confidential matter and you are reminded of the need to keep this matter confidential.

Yours sincerely,

Sonia Pititto

Senior HR Business Partner” 16

[23] Mr Saunders was not provided with a copy of the investigation report or any summary of why the findings were made, or why in some respects his allegations were either not substantiated or only partially substantiated.

[24] His evidence is that within an hour or so of having been informed of the result of the investigation into his complaints about Ms Robertson that he was approached by Ms Dowell and told that he would be required to attend a formal disciplinary meeting in relation to his own conduct. This evidently took him by surprise; and Mr Saunders’ evidence is that he asked Ms Dowell whether he “was being terminated [and] she said there will be some form of disciplinary action that can include termination due to misconduct”. 17 The notification to Mr Saunders was given to him on 20 October 2016 and the meeting was to take place on 21 October 2016.

21 October 2016

[25] A meeting of sorts between Mr Saunders, Ms Dowell and Susan Jackel, the company’s Employee Relations/Industrial Relations Manager took place on 21 October 2016. Ms Jackel says that “Ms Dowell was to take Mr Saunders through the performance issues and several other matters that were raised by the investigation, including his recording of a meeting with Ms Robertson and a deliberate disregard to follow a workplace direction”. 18 Ms Jackel’s witness statement provides this context to what she means in this passage to “the investigation”;

“My earliest recollection on hearing about Mr Saunders was being in meetings/discussions where I heard about an investigation being undertaken and a report pending from an external company in relation to a complaint he had made about his manager, Mandi Robertson, Marketing Manager. I recall there was some discussion about extended poor performance prior to the complaint being made but at that stage I wasn't overly familiar with circumstances of the matter.” 19

[26] The references to his recording of a meeting and disregarding a workplace direction relate to matters that had arisen in the course of the bullying investigation but which by all accounts had not previously been put to Mr Saunders by 21 October 2016.

[27] When the meeting commenced Mr Saunders was alone and did not have a support person, he said to Ms Jackel that he had not had time to select one. 20 After an opening to the meeting in which Mr Saunders was apparently told that there were questions the company wished to ask him, he requested an opportunity to know the questions and take them away to prepare a response. Ms Jackel’s evidence is that in reply to that request she said words to the effect of “we will proceed to start the process, Dani will ask you some questions, hear your initial responses and then we’ll take a break to consider your responses, and giving you more time to provide written responses to some matters””21.

[28] Mr Saunders then told Ms Jackel and Ms Dowell that he had a medical certificate for personal illness. Ms Jackel requested that Mr Saunders obtain a copy of this medical certificate, which he did after which the meeting was suspended. 22

[29] After suspension of the meeting Mr Saunders left the premises and did not return again, progressing initially on paid personal leave which ran out after about two weeks. 23 He provided a number of medical certificates to the Respondent covering his absences.

10 November 2016

[30] On 10 November 2016, Kliger Partners, solicitors acting for Mr Saunders, wrote to CSL making a number of allegations including that the investigation finding that Ms Robertson had not engaged in bullying was unsustainable on the evidence; that it was unreasonable to subject Mr Saunders to performance management; and identified termination of his employment on agreed terms as a potential outcome.

[31] The correspondence accused CSL of seeming to be waiting for the first available opportunity to terminate Mr Saunders employment because of workplace rights he had or had exercised or proposed to exercise, thereby being in breach of the general protections provisions of the Act. The company was also informed that Mr Saunders intended to exercise his workplace rights to seek bullying orders both against the company and Ms Robertson in the Commission.

[32] Having traversed his complaints against the Respondent and Ms Robertson Mr Saunders’ solicitors then set out a proposal for resolution of the matter which, inter alia, proposed the termination of his employment in return for payment of significant compensation and other matters.

18 November 2016

[33] Ai Group Workplace Lawyers acting for CSL wrote to Mr Saunders’ lawyers on 18 November rejecting the allegations and their proposed resolution of the matter and set out a number of allegations it considered Mr Saunders should answer. The correspondence identified the company’s performance concerns that Mr Saunders had been asked to address in the 24 August 2016 Stage 1 Counselling email and Action Plan, referred to above.

[34] In a partial concession to Mr Saunders the Respondent conceded that it may be willing to consider his request that he no longer report to Ms Robertson and that it would reconsider working on reporting arrangements once he returned to work. The allegations then made against Mr Saunders to answer may be summarised as follows:

[35] The correspondence rejected the possibility of CSL providing Mr Saunders with a payment to leave his employment.

25 November 2016

[36] On 25 November 2016 Mr Saunders’ solicitors wrote to CSL’s solicitors advising that he continued to be unwell and that he was obtaining treatment from a general practitioner and a psychologist. The same correspondence also advised that “Mr Saunders disputes most or all of the allegations” and that he trusted his employment would not be terminated during the period of about 1 to 2 weeks in which he would endeavour to provide a detailed response to the allegations. Finally his solicitors, Kliger Partners, advised that they ceased to act for Mr Saunders.

1 December 2016

[37] Shortly after the above correspondence being sent on his behalf, Mr Saunders retained another representative, Alan Dircks from the firm Just Relations. It appears that after retaining Just Relations, a representative from the firm contacted the Ai Group about Mr Saunders. That contact in turn led to a letter being sent directly from CSL to Mr Saunders on 1 December 2016. The correspondence was in strong terms;

“Dear Andrew

We refer to recent correspondence sent on our behalf by Ai Group Workplace Lawyers Pty ltd to your then lawyers, Kliger Partners dated 18 November 2016 wherein a number of serious allegations were made against you.

We understand as of 25 November 2016, Kliger Partners are no longer instructed to act on your behalf. Nonetheless at the time of confirming this they were instructed to advise our lawyers that you anticipated "providing a detailed response to each and every allegation and matter raised in your letter in approximately 1 to 2 weeks." While we would not ordinarily consider some three (3) weeks necessary we have not pressed you on this matter and have merely adjusted our expectations to receive your response by 9 December 2016.

We were nonetheless concerned to learn from our lawyer, Ms Melini Pillay that a Mr Alan Dirks of Just Relations, contacted her on 30 November 2016 at approximately 2.25pm stating that this matter is "going to end up in an unfair dismissal claim Mr Dirks has suggested that Seqirus intend to terminate your employment the second you "walk in the door'.

Seqirus is troubled by the communication. Firstly, as relayed by Ms Pillay, there is no dispute with you presently on foot. As we understand it, you are simply in the process of responding to allegations we have put to you. Once we are in receipt of your responses, Seqirus will need to consider those matters and may need to make further enquiries. We are unable to predict what may occur. We have previously advised you of this course.

Seqirus takes seriously the obligations imposed on it by the Fair Work Act 2009. It does not take lightly the suggestion that it will or intends to breach the provisions relating to unfair dismissal, when we have at all times acted properly and appropriately in ensuring the discharge of our obligations.

Moreover, we are following a process to ensure you are afforded procedural fairness and every opportunity to understand and respond to the allegations against you.

Nonetheless, it is necessary that we advise you, that you cannot thwart the fair process offered to you by failing to cooperate or participate in the process or by circumventing the process or by attempting to obtain a financial settlement and then attempt to suggest the process was unfair.

In the event you have changed your mind and no longer intend to provide a response to the allegations by 9 December 2016 or at all, please contact Ms Jackel, Employee Relations/Industrial Relations Manager at [email address] at your earliest convenience, or no later than 2pm on 6 December 2016 to confirm this. Ms Jackel can be contacted on [landline telephone number]. Ms Jackel can also be contacted in the event you have any questions in relation to these matters.

On the basis of the communication from Kliger Partners that you would respond by 9 December 2016, Seqirus has set aside time to consider your responses and finalise its process by close of business, 13 December 2016.

Again, we encourage you to use the services of our Employee Assistance Service who can be contacted on [telephone number].

Yours sincerely

[signed]

Director, Commercial Operations” 25

9 December 2016

[38] Following this correspondence, Alan Dircks, from Just Relations, wrote on Mr Saunders’ behalf to Ms Pillay at the Ai Group Workplace Lawyers for CSL. Regarding the matters set out in relation to a possible Sixth Allegation, the correspondence rejected the prospect that there were allegations against Mr Saunders from Ms Robertson about harassment saying that he did not even know what the allegations were or the period they were supposed relate to:

“Subsequent to this date, Ms Robertson made a series of allegations against Mr. Saunders, including apparently harassment, sexual harassment and 'otherwise'.

It should be noted there had been no allegations made prior to this time that Mr. Saunders is aware of regarding asserted harassment, sexual harassment or 'otherwise'. Further, none of the issues that formed the basis of the allegations by Ms Robertson had ever been raised either during the probationary period, in performance reviews or in determinations regarding Mr. Saunders' recent salary increase.” 26

[39] In relation to the other allegations made against Mr Saunders by CSL, some appear to have been partially conceded, but said to be the product of reasonable behaviour; others were rejected outright; and finally, others were the subject of a request that additional details be provided, including details about who had made the allegations. The correspondence from Mr Dircks noted that Mr Saunders was generally seeking advice “due to the stress and anxiety that these substantiated allegations about his employer manager have had on him”, with the reference to the substantiated allegations being a reference to the matters that had been found as a result of the Papillion Consulting Group investigation into Mr Saunders complaints against Ms Robertson. In summary it was said on behalf of Mr Saunders that;

“We note that you state Ms Robertson has now made a formal complaint alleging harassment, sexual harassment and otherwise against Mr. Saunders.

While we have sought details from you as to the nature of these complaints, including when the alleged events occurred and in what circumstances we note you have preferred to ignore this request.

We would also note that Ms Robertson was Mr. Saunders's immediate supervisor and had formal power and authority over him. The substantiated allegations against Ms Robertson show that she had no reticence about exercising that power and authority.

Ms Robertson allegations of harassment and sexual harassment are without basis and appear to be in direct retaliation to the substantiated allegations made against her.” 27

19 December 2016

[40] The response from Just Relations to Ai Group Workplace Lawyers drew a further response on behalf of CSL. The response on 19 December 2016 claimed that in certain respects Mr Saunders had failed to properly respond to it and in other respects contested what Mr Saunders had put forward as a response. It accused Mr Saunders of “some evasion of responding to the actual allegations and some intention to confuse otherwise clear factual matters” which “made it difficult for Seqirus to conclude Mr Saunders had been frank and honest in his responses”. 28 In relation to the allegations that had been put to Mr Saunders in November 2016 and the responses he had later given, he was advised:

“vi) Other matters

Ms Robertson has now made a formal complaint alleging harassment, sexual harassment and otherwise against Mr Saunders. Seqirus are in the process of investigating those complaints and in your client's absence are holding discussions with other witnesses who are alleged to have witnessed such discussions. Mr Saunders may need to respond to those matters as well in due course” 29

[41] It also said in the same correspondence that this final matter was not an allegation at all;

“We note there was no Sixth Allegation posed to Mr Saunders. He was merely informed of the fact that Ms Robertson has made a complaint in relation to him. We have not sought a response from him in relation to those allegations, and it is Seqirus' intention to do so upon his return to work.” 30

[42] Finally, the 19 December 2016 correspondence from Ai Group Workplace Lawyers on behalf of CSL invited Mr Saunders to provide his response;

“… directly to the business, to Ms Susan Jackel, Employee Relations/Industrial Relations Manager at [email address]. We do note that the business will be in shutdown for the festive season and is unlikely to be able to respond further prior to 5 January 2017.

Mr Saunders is able to contact Ms Sue Jackel, on [landline telephone number] if he has any questions in relation to these matters.” 31

22 December 2016

[43] Alan Dircks of Just Relations sent an email directly to Ms Jackel, bypassing the CSL legal representative, on Thursday, 22 December 2016. Ms Jackel did not see the correspondence until 24 December 2016 and she did not respond at that time as she was on leave. 32 While this correspondence to some extent may have protracted the debate between the parties about which allegations were being made, and what had been responded to or not, it significantly referred to the prospect of a return to work by Mr Saunders with the correspondence saying that;

“Mr. Saunders is seeking to return to work and also enquiring when the Christmas celebrations are, to possibly commence facilitating that return. Can you please advise who he is to report to, given that his previous manager has now made a formal complaint of sexual harassment.” 33

[44] In addition to indicating that Mr Saunders was seeking to return to work and that he wanted advice about the mechanics of that, Mr Dircks also sought advice about what was sought by CSL in the way of a response from Mr Saunders regarding the Fifth Allegation. That is that he had undertaken his own private business interests contrary to his contract of employment and contrary to the knowledge of CSL. The following was put forward:

“Fifth Allegation

The original allegation sought responses to a series of closed questions regarding quantum of time spent on external interests. These responses were provided in a definitive fashion.

There was an additional assertion that the applicant was engaged in the sale of sex costumes, which was of course unfounded.

Can you please advise what response is now sought as there is no clarity in the narrative on page 3 and 4 of the letter dated 19 December.

As a recap - Mr Saunders advised Ms Robertson of his external interests at time of initial interview. There was no attempt to deceive and Ms Robertson advised at that time the she was satisfied that these interests did not have any impact on the employment relationship and that written permission was not required. These interests pre-existed and were made known to the employer. It was Ms Robertson, as the manager who advised that no written documentation was required.

Can you please clarify what the actual allegation is, and what it is that Mr. Saunders is to respond to.” 34

[45] A similar question was asked by Mr Dircks about what was sought in the way of response by CSL in relation to the Sixth Allegation, which the Applicant plainly took to still be a live allegation at that time:

“Allegations of sexual harassment and other harassment

Mr. Saunders is of course concerned as to these assertions and how he will now be perceived at CSL, after several of his current colleagues calling to comment on these allegations to him and showing concern how these allegations are impacting his current health and recovery. Mr. Saunders will respond to those allegations once he is made aware of when the asserted conduct is alleged to have occurred, who witnessed the alleged conduct, what actions were taken by Ms Robertson at that time they allegedly occurred to alert third parties of that conduct including making complaints to Human Resources and what other actions were taken at the time that the alleged conduct was said to have occurred. Mr. Saunders will give a formal response to these allegations once he has had an opportunity to seek external and independent industrial and legal advice, as is his right.” 35

[46] Finally in relation to the prospect of return to work by Mr Saunders the correspondence from Mr Dircks asked;

“As previously stated Mr. Saunders will be expecting to return to work to his previous role. Can you please ensure that his email and associated accounts are activated along with his security passes.” 36

4 January 2017

[47] On 4 January 2017, because he had not received any acknowledgement of his 22 December 2016 email to Ms Jackel, Mr Dircks sought her advice as to whether she had returned from leave. In response, also on 4 January 2017, Ms Jackel advised Mr Dircks that she had received the email and that she had referred it to Ms Pillay from the Ai Group Workplace Lawyers. Ms Jackel says in her witness statement with respect to the 4 January 2017 email that;

“I thought it was strange that Mr Saunders was seeking to return to work on 22 December 2016, when on 9 December Mr Dircks had indicated that he was seeking medical advice. There was no explanation for his absence on 20 or 21 December and he had made no contact with Ms Dowell to indicate he would be returning or was feeling up to returning. I also thought it was odd given Mr Saunders, like all CSL employees was aware of the business shutdown but attempts to suggest he was not.” 37

[48] After discussion within her witness statement about the things she did after 4 January 2017 and what she saw as strangeness within Mr Saunders’ responses to the company, Ms Jackel determined to correspond further with Mr Saunders, but without considering it important to communicate with Mr Dircks:

“Regardless, given there was no medical certificate to support an absence from work and Mr Dircks advice that Mr Saunders is seeking to return to work, we thought it appropriate that we write to him, to facilitate that return. I had some concern he may attend work that day or soon after, and I was keen to ensure he had a medical certificate to acknowledge the length of his absence and confirm that he was fit for normal duties and to continue with the disciplinary process.”  38

[49] Ms Dowell’s evidence includes that she came back to work on 5 January 2017 but that she had been working intermittently throughout her leave 39 and that Ms Jackel let her know about Mr Saunders desire to return to work”:

“When I came back I recall Sue advising me that it was likely Andrew would be returning soon, given the medical certificate had expired and unlike in the weeks prior there was no further medical certificate, and Mr Alan Dircks had advised Sue, Andrew would be returning to work via email on 22 December 2016.” 40

6 January 2017

[50] A letter was sent by CSL directly to Mr Saunders on Friday 6 January 2017 by Express Post. It is appropriate to set this letter out in full for the purposes of context to this decision;

“Dear Andrew

As you know our lawyers Ai Group Workplace Lawyers have been in communications with your representative, initially Kliger Partners and more recently Just Relations at your request. We note however given your pending return to work, we will now correspond with you directly.

On 18 November 2016, five (5) allegations were put to you via Kliger Partners. On 25 November 2016, Kliger Partners advised you would respond to those allegations within 1 to 2 weeks and confirmed they were no longer instructed by you.

On 9 December 2016 at 6.43pm we received a response from Just Relations to the allegations. In relation to the third and fifth allegations a reference was made to further documentation and/or circumstances. In relation to the fourth allegation a response that did not relate to the allegation was provided. On 19 December 2016 a further letter was sent by Ai Group Workplace Lawyers to Just Relations, providing you a further opportunity to provide any further information, clarification or response to the allegations.

On 22 December 2016, your representative Mr Dircks wrote to Ms Susan Jackel, our Employee Relations/Industrial Relations Manager. He indicated that in relation to the third allegation, you dispute that Ms Robertson made the referral and confirm that you did. In doing so a reference was made to ‘colleagues’ who are not identified, precluding further enquiry. We note the ‘documentation’ previously referred to was not provided.

It appears you are confused by the fourth allegation. We find this a little troubling as the conduct we seek a response to, being a failure to comply with a reasonable and lawful direction is directly taken from your words which formed part of your complaint. This was reproduced for you from your complaint. We consider it reasonable to presume that when referencing your complaint made under your signature you would be able to recollect the conversation referred to.

We note despite the details regarding the secondary employment referenced at allegation five, perhaps being the most concerning allegation, you have elected to provide no further information again suggesting there is a lack of clarity in the allegation.

We will be reviewing all communications and making a final decision in relation to these matters on Tuesday, 10 January 2017. If there is anything further you wish to add, please ensure it is provided by 10am, 10 January 2017.

We note it is indicated in Mr Dircks email of 22 December 2016, after our office closed for the holiday season that you are seeking to return to work. We are pleased to hear this. However we were not been provided with any information as to when you will return.

As you know, you have been absent since Friday 21 October 2016, when in the course of our disciplinary meeting you produced a medical certificate and have done so since that time. We have been provided with no details on your medical condition, your treatment, prognosis or an anticipated return date from a medical practitioner.

We are concerned that your condition may be ongoing, given as recently as 9 December 2018 Just Relations indicated you were “seeking advice due to the stress and anxiety that the substantiated allegation about his employer and manager have had on him”. Somewhat similarly your previous representative indicated on 10 November 2016 that you were likely to be absent from the workplace for a “lengthy period”.

As you may be aware, we have considerable obligations to you and your colleagues in the workplace under the OH&S legislation to ensure that we take all reasonably practicable measures to ensure your health, safety and welfare in the workplace. We are also obliged to ensure we do not expose you to any duties or circumstances that may aggravate, accelerate, exacerbate or deteriorate your current condition, whatever it may be. In addition to this, we need to be certain that being at work does not place your health at any risk.

In order to assist us in discharging our obligations and before we can return you to the workplace, we require you to provide a full medical clearance report from your medical practitioner [name] of [clinic name], referring to the period of your absence, referring specifically to any anxiety and stress you suffered/are suffering, confirming you are fit to return to your pre-illness role as· Brand Manager and in addition confirming that you are fit to partake in disciplinary discussions upon your return to work.

We note that you have not provided medical certificates since a certificate dated 12 December 2016 which certified you as unfit for your usual occupation until 19 December 2016. Accordingly, can you please provide medical certificates for your absence commencing 20 December 2016.

We would be pleased if you would attend Corporate Reception at 9am on Wednesday 11 January 2016 (sic) with the medical assessment and certificates for absences as noted above and ask for myself. If you are unable to obtain the medical report and certificates by 11 January 2017, please contact me and let me know when you will be possession of the report and certificates so we can schedule a time for your return to work. Upon receipt of the medical clearance, your swipe access pass and IT accounts will be reactivated. Please note that you will be reporting to me.

Please contact Ms Jackel on [landline telephone number] if you have any other questions in relation to these matters. We continue to encourage you to use the services of our Employee Assistance Service who can be contacted on [telephone number]. We look forward to seeing you next week.

Yours sincerely

Danielle Dowell

Director, Commercial Operations” 41

[51] There is no evidence before the Commission that CSL or anyone acting for the company endeavoured to provide a copy of the correspondence to Just Relations who was at the time acting for Mr Saunders, or to otherwise draw to their attention that such correspondence had been sent on the company’s behalf and that it included an important expectation on its part.

[52] The letter refers to an expectation on the part of CSL that Mr Saunders attend at the company on Wednesday 11 January 2017.

11 January 2017

[53] Ms Jackel waited for Mr Saunders to attend in accordance with her expectation; however he did not do so. She then arranged for a further letter to be sent again by Express Post to Mr Saunders on Wednesday, 11 January 2017. That letter sought that Mr Saunders attend a meeting with CSL at 9 AM on Friday, 13 January 2017.

[54] Again there is no evidence before the Commission that CSL or anyone acting for the company endeavoured to provide a copy of the correspondence to Just Relations or to draw its contents to their attention.

12 January 2017

[55] Even so, Ms Dowell forwarded a text message to Mr Saunders on 12 January 2017 at 3:52 PM drawing his attention to there having been an important letter sent to him. The text message read;

“Hi Andrew, I thought I would let you know that I sent you a letter in reply to your representatives communication informing me that you wish to return to work. If you can inform me if you have received my letter and will attend work tomorrow morning that would be appreciated. Regards Dani”. 42

[56] Ms Dowell’s evidence does not indicate why she considered it important to send such a text message to Mr Saunders, but did not communicate with his representatives on the subject. There is no evidence before the Commission that Mr Saunders saw or knew of the text message near to the date and time it was sent.

13 January 2017

[57] Mr Saunders did not attend the meeting as expected by CSL on 13 January 2017 or notify CSL that he was unable to attend.

[58] Ms Jackel’s evidence is that at 9:37 AM on Friday, 13 January 2017 Ms Pillay, acting for CSL, emailed Mr Dircks and enquired if he was still representing Mr Saunders. 43 At 9:57 AM on 13 January 2017 Ms Jackel received an email directly from Mr Dircks setting out the following:

“Dear Ms Jackel,

I understand there has been some correspondence directed to Mr Saunders over the recent period. Unfortunately, I have been informed by Mr Saunders' family that he is currently unwell and appropriate certificates will be forwarded as available.

If you have any queries about this matter over the next week please contact me. Subsequent to that I am overseas for 3 weeks and the contact in our office is Garry Dircks on [email address].

Note that Mr Saunders is not in a position to receive mail or phone calls and all contact should be either to myself or to Garry Dircks.

Yours faithfully,

Alan Dircks” 44 (underlining added)

[59] Ms Jackel reaction to receiving this email was that she “thought it was strange that within 20 minutes of receiving the email from Ms Pillay, he was suddenly able to inform me that Mr Saunders was ill, having not done so at any time since ending his email on 22 December or in his email of the 4 January 2017. It would seem an important matter to raise, given there was no explanation, approval or medical certificate to support an absence from the workplace”. 45

[60] Ms Dowell’s evidence is critical of Mr Saunders lack of contact with CSL during this period;

“105. The letter required a response from Andrew via a telephone call and attendance at a pre-arranged meeting.

106. Andrew never responded to the letter or attended the meeting. Andrew did not respond to my email or to my text message. I did not think that was acceptable given it is ordinarily the employee's obligation to contact me if they are absent which Andrew was aware of and had previously done.

107. I was told, I think by Sue that on Friday, 13 January 2017 there was some message not from Andrew himself but from Mr Alan Dircks, that he was unwell.

108. It was odd that he couldn't communicate this to me or provide a medical certificate as he had in the past, especially when he knew CSLs policy and had complied with it.

109. We waited for any medical certificates to be received, following that message. We thought one might come that evening or over the weekend or even on the Monday.

110. There was nothing.” 46

[61] CSL then determined to have Mr Saunders show cause why he should not be dismissed in a letter again sent to him by Express Post on Tuesday, 17 January 2017, with Ms Jackel giving this evidence;

“76. We discussed internally that we would expect to see a more detailed explanation of someone being suddenly 'unwell' to consider it genuine in the circumstances. I would have thought Mr Dircks would have provided the name of who had contacted him, when they contacted him and whether he had informed them to contact CSL directly. In addition to the timing of the information coming to hand, it all seemed a bit strange. We were also a bit baffled by the idea that Mr Dircks would substitute himself as our employee for discussions. Nonetheless, we assumed that he had probably told the family member to call him if they receive anything further from CSL.

77. Without any specific reason or medical evidence to confirm Mr Saunders could not even communicate with CSL, his employer, we thought it was unsatisfactory. Given the absence had persisted for almost a month, we considered it necessary that we arrange a show cause meeting.” 47

18 January 2017

[62] Ms Dowell forwarded a further text message to Mr Saunders at 4:57 PM on 18 January 2017, with the text reading;

“Hi Andrew, I wanted to text you to ascertain a response from you in regards to attending work tomorrow morning as per the letter you will have received today. Could you contact me please with a response. Regards Dani”. 48

[63] Again Ms Dowell’s evidence does not indicate why she considered it important to send such an email to Mr Saunders as opposed to communicating with his representatives on the subject. Especially given Mr Dircks advised on 13 January 2017 that his client was unwell. Again, there is no evidence before the Commission that Mr Saunders saw or knew of the text message near to the date and time it was sent.

19 January 2017

[64] Again Mr Saunders failed to attend the expected meeting with CSL set by it for Thursday, 19 January 2017. There was further correspondence between Ai Group Workplace Lawyers and Just Relations on the same day indicating CSL’s views about how Mr Saunders had acted and his failure to explain his absence or provide certificates to support his absence from the workplace since 20 December 2016. The correspondence maintained CSL’s view that it “is appropriate in the circumstances that CSL Limited continue to communicate directly with the employee, Mr Saunders”. 49

[65] Later the same day Ms Jackel and Ms Dowd together with Yvette Saunders, the CSL Director Human Resources Asia Pacific, met and agreed that Mr Saunders termination of employment was appropriate;

“81. On 19 January, Ms Dowell, Ms Yvette Saunders and I met and discussed the continued absence without reason or explanation from Mr Saunders, the lack of contact or communication and the inability to have any, and concluded it was unacceptable. We also considered the other issues in relation to his performance and the fact he hadn't been with the business very long, that there were outstanding disciplinary matters that were unresolved and the considerable financial settlement request and concluded it was likely he had abandoned his job.

82. We saw no reason to believe we were going to have any communication with Mr Saunders in the foreseeable future. There was no expectation of hearing from him and no expectation of receiving a medical certificate given it was a week since we had alerted Mr Dircks to his absence and nothing was forthcoming. In the circumstances, we considered termination was appropriate...” 50

[66] The reference to it being “a week since we had alerted Mr Dircks to his absence” appears to be a reference to the email Ms Pillay had sent Mr Dircks on 13 January 2017, in which she enquired if he was still representing Mr Saunders.

[67] Ms Dowell’s evidence echoes that of Ms Jackel’s that she expected better conduct of a senior manager than there being no contact from him at all “unless he was completely incapacitated”. 51 Ms Dowell’s evidence also deals with the eventuality of Mr Saunders having made contact as result of the company’s correspondence:

“117. If Andrew had communicated with me, by text, email and indicated when a medical certificate would be provided for his absence or even by his Doctor sending me a medical certificate on his behalf, which happens on occasion, I certainly would have thought it fair and prudent to continue to await his recovery, as we had done since 21 October 2016.

118. Given his lack of any communication and continued absence without any explanation there was little CSL could do and no reason to continue waiting for a response.

119. I consider it necessary that an employee be contactable and communicative, perhaps more so where the employee is senior, because they should understand that the business needs to operate and their roles are crucial to this happening.

120. I did think that perhaps Andrew knowing, he was an underperformer and likely to be subjected to ongoing performance management with me, may have simply elected to end his employment. It’s not that uncommon with senior employees, especially if you want to preserve your reputation in the rather small pharmaceutical industry.” 52

[68] Consistent with the decision made the previous day, a termination letter was drafted and sent to Mr Saunders.

[69] The termination letter gave Mr Saunders four weeks pay in lieu of notice and advised him that he had been terminated for the following reasons:

“Regrettably, we write to advise you that your employment with CSL Limited is terminated, effective today for:

[70] Also on 20 January 2017 a CSL payroll administrator completed an Employment Separation Certificate in relation to Mr Saunders. That certificate indicated that Mr Saunders employment had ceased on 19 January 2017 and that the reason for separation was twofold; misconduct as an employee and “other” elaborated upon as him having “abandoned employment”. 54

21 January 2017

[71] Additionally, at 5.01 PM on Friday 21 January 2017, Ms Pillay communicated with Mr Dircks and informed him that Mr Saunders’ employment with CSL had been terminated. 55 Ms Jackel’s evidence is that this was on 20 January 2017;56 however she appears to be incorrect, with the communication actually occurring a day later.

[72] Earlier to Ms Pillay’s email on 21 January 2017, she had communicated with Mr Dircks on 19 January 2017 at 9.27 AM, and him with her at 12.22 PM. In the first communication, Ms Pillay informed Mr Dircks that her client preferred to directly communicate with Mr Saunders but that, as a corporation entitled to legal representation CSL asked Mr Dircks to refrain from communicating directly with it. In the second communication Mr Dircks disagreed, firmly responding back to Ms Pillay saying that;

“Mr Saunders' family have advised that he is currently unwell and not in a position to receive or respond to workplace correspondence. Until there is further clarity with regard to Mr Saunders' condition we seek that all correspondence be directed to this office, either to myself or, in my absence of the next 3 weeks, to Garry Dircks at [email address].” 57

25 January 2017

[73] On Wednesday, 25 January 2017 Mr Saunders sent an email to Ms Jackel with a copy to Mr Dircks regarding the collection by CSL of its equipment, which was a matter that had been referred to in the termination of employment letter. Ms Jackel says about this correspondence that she was shocked to receive the email “because of the previous communications that he was unable to contact or communicate with me or CSL. 58 She elaborates upon her shock with this evidence relating to January 2017:

“When we received the Unfair Dismissal application, we were surprised to see that Ms Saunders had, on 20 January 2017, one day after being terminated, one day after an email from Mr Dircks, without any indication he would, attended his Doctor to obtain a backdated medical certificate (which still did not cover 20 to 24 December).” 59

[74] The evidence before the Commission about Mr Saunders’ absences from work may be summarised in the following way:

LEGISLATION

[75] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009 (the Act), which is as follows;

“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.”

CONSIDERATION

[76] Determination of whether Mr Saunders’ dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[77] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way: 67

“[28] The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

[78] I will deal with each of the criteria within s.387 in turn.

(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)

[79] As noted above, determination of whether there was a valid reason for a person’s dismissal involves an examination of whether the reason given is “sound, defensible or well founded”. That determination in turn requires a consideration of the overall context of the employment relationship:

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, commonsense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 73

[80] The letter of termination and Separation Certificate sent to Mr Saunders refers to him having been dismissed for a combination of reasons:

“Regrettably, we write to advise you that your employment with CSL Limited is terminated, effective today for:

[81] Having been dismissed for reasons that include misconduct, in order to make a finding there was misconduct, the Commission is first required to find whether on the balance of probabilities the alleged misconduct actually occurred. 76 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.77 The question of whether the alleged conduct took place and what it involved is to be determined by the Commission, however the test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.78 The Commission will also take into account the need for honesty on the part of the applicant during the course of an investigation.79

[82] It is apparent from the letter of termination and the Separation Certificate that the stated reasons for dismissal do not on their face contain any element referable to the matters about which CSL wanted a response from Mr Saunders in October 2016 and later. Those matters included the six specific allegations set out above. However, the evidence before the Commission is both that CSL wanted to have answers to those matters, as well as that Mr Saunders became too unwell to respond to them directly and instead endeavoured to do so through his representatives. In any event CSL does not rely upon any of those matters as a foundation for its reason to dismiss Mr Saunders.

[83] Instead the foundation for CSL’s reasons for dismissal is on the one hand a failure on Mr Saunders’ part to apply for leave or to communicate with CSL about his intentions and, on the other hand, a failure to comply with its directions for him to attend three meetings on 11, 13 and 19 January 2017.

[84] It is appropriate to jointly consider the stated reasons for termination of employment.

[85] The last medical certificate from Mr Saunders, accompanied by an email from him to Ms Dowell on 5 December 2016, advised that he would be unfit to return to work until Monday 19 December 2016. 80

[86] The correspondence sent to Mr Dircks on 19 December 2016, by Ms Pillay from Ai Group Workplace Group Lawyers, acting for CSL makes significant assertions about Mr Saunders’ conduct. Through the correspondence, the Applicant was told that “there appears to be some evasion of responding to the actual allegations and some intention to confuse otherwise clear factual matters”; that Mr Dircks appeared to be providing legal advice about the Surveillance Devices Act 1999 (Vic) when he was not a lawyer and that “Mr Saunders has clearly breached the provisions of the legislation and [we] are in the process of considering appropriate referral”.

[87] The same correspondence accuses Mr Saunders of having failed to comply with the direction given to him to delete the recording related to the First Allegation; that in respect of the Fourth Allegation his “response appears to deliberately confuse the facts as stated” and that he “has failed to respond to the allegation as to why he deliberately and intentionally failed to comply with a lawful and reasonable direction” about attendance at the meeting in question. In respect of the Fifth Allegation about undertaking external business activities or external employment, it was asserted that Mr Saunders had not been forthcoming in his answers and provided insufficient information about the matters in question, with the company being “disappointed at the clear lack of cooperation, unwillingness to be forthcoming and find it difficult to conclude he has been honest”.

[88] In respect of the Sixth Allegation of harassment, while denying it is an allegation, the 19 December 2017 letter informs Mr Saunders a response will be sought from him when he returns to work. However, the allegations have never been particularised to Mr Saunders.

[89] Notwithstanding this correspondence being seen by Mr Dircks and Mr Saunders on 19 December 2016, Mr Saunders instructed Mr Dircks to advise CSL that he was seeking to return to work. On Wednesday, 22 December 2016 Mr Dircks, sent an email to Ms Jackel saying that “Mr Saunders is seeking to return to work and also enquiring when the Christmas celebrations are, to possibly commence facilitating that return. Can you please advise who is to report to, given that his previous manager has now made a formal complaint of sexual harassment”. CSL understood the comment about seeking to return to work and responded on the subject in its 6 January 2017 letter. They were pleased to hear of his desire.

[90] The fact that Mr Saunders corresponded on 22 December 2016 that he was seeking to return to work and was prepared to do so notwithstanding CSL’s views communicated to him only a few days before about the comprehensiveness or honesty of his answers to the matters it was investigating must surely stand to his credit. The company may have considered his responses inadequate and that he had been evasive and failed to be frank and honest and informed him of such, but he was indicating a preparedness to return to work.

[91] The one qualification which is set out within the correspondence of 22 December on Mr Saunders’ behalf is the indication that he considered he should report to someone other than Ms Robertson given that she had made a complaint about him and that he sought advice from CSL about this reporting line. CSL’s 8 January 2017 response included that he would be reporting to Ms Dowell. 81

[92] Mr Saunders reports in his evidence significant distress and consequential deterioration in his mental health over the Christmas period. He reports being uncommunicative and unable to attend his family’s Christmas function, declining even to answer the door to his parents on Christmas evening, and when they returned the following day took him to their home where he then spent some time recuperating:

“74. My parents came to my house on Xmas evening and I was in no state to answer the door. They returned the next day with a key and took me to their home. I subsequently spent time at my parent’s house recuperating.

75. I was not able to care for myself and relied on my immediate family. I understand that some letters were sent to my home in January but I was in no position to read, let alone answer them. I was not even living there at the time.

76. My sister went to my property occasionally to collect mail. I understand she contacted Just Relations on the 13th January 2017 to seek that advice be given to my employer that I was unwell and not in a position to respond to any letters that had been sent.

Final medical certificate

77. I was finally able to get out and see my doctor on the 20th January. My GP was able to provide a medical certificate for the period from Xmas to when I was terminated and has also referred me for additional treatment…

78. This certificate was in the same format as the previous five certificates, provided to and accepted by my employer.

79. I passed that certificate to Just Relations and I was cc’d when the certificate was forwarded to Ms Pillay on 10th February.” 82

[93] In his oral evidence Mr Saunders elaborated that he did not go back to his house until around 19 January but that his sister would go around to collect things. Further he did not see his doctor between Boxing Day and 20 January 2017. Mr Saunders conceded that he had never provided CSL with medical evidence of his mental illness. He also accepted that while he was aware of the CSL January letters he did not call CSL because he believed his representative was handling them.

[94] I accept Mr Saunders’ evidence about the state of his health from Christmas Day and into January 2017 and that he believed his representative would handle the letters from CSL.

[95] Ms Jackel saw the email on 24 December 2016, but did not do anything about it until 4 January 2017. Despite Ms Dowell’s 8 January 2017 correspondence that CSL was pleased to hear he was seeking to return to work, neither her evidence nor that of Ms Jackel corroborates that emotion.

[96] Ms Dowell’s evidence endeavours to suggest that there was no responsibility at that time for the company to reintegrate Mr Saunders to the workplace. Her witness statement gives no voice of pleasure to see him return, with her specific evidence including the following:

“Abandonment of Employment

91. Andrew's last medical certificate ended on 19 December 2016. I didn't hear anything from him after this time.

92. Though I am always available on email and on my mobile phone, regardless of any break or leave period I did not hear from Andrew.

93. I have read that Andrew was planning on coming back to work on or around 20 December and did not know of the shutdown dates or Christmas party arrangements, I think the suggestion is either consistent with his poor planning or dishonest.

94. CSL communicate months in advance its shutdown period to all employees. As a Manager in the organization, paid a significant salary, and tasked with quite significant duties, I would expect Andrew to manage his own diary and keep a record of these important dates. I would certainly question Andrew's competence if he required or expected his own specific communication from HR on the same subject matter.

95. Andrew was always aware that upon providing a medical clearance, that he was ready to come back to work, he could return at any time and recommence performance management discussions and duties.

96. Andrew never emailed or called me to suggest he was considering coming back to work and more importantly if there was anything he needed to look or get on top off, in preparation for a return. Again, this is something I would expect of someone in such a senior position within the organization after a lengthy absence.

97. I came back to work on 5 January 2017. I was however working intermittently throughout my leave.

98. When I came back I recall Sue advising me that it was likely Andrew would be returning soon, given the medical certificate had expired and unlike in the weeks prior there was no further medical certificate, and Mr Alan Dircks had advised Sue, Andrew would be returning to work via email on 22 December 2016.

99. By this stage it seemed a bit inconsistent to not have heard from Andrew or for him to attend work so we wrote to him on 6 January 2017. …” 83

[97] Ms Jackel’s evidence is that she considered Mr Saunders’ desire to return to be “strange” given that an earlier time he had said he was seeking medical advice, as well as it being “odd” that he chose to inquire about the dates of the Christmas shutdown when those dates have been circulated an earlier time in internal material. 84 Dealing first with Mr Saunders’ request to learn of the dates of the Christmas events and shutdown, Ms Jackel’s evidence includes the following:

“61. It seems strange that Mr Saunders would have such a dramatic response to expecting a personal invitation to a Christmas party, when he simply could have attended under the same invite that all employees receive. I'm not sure why Mr Saunders expected such special treatment.

62. Moreover, I did not see the elaboration on responses that we had hoped to see. Rather it seemed there was a deliberate attempt to confuse matters. Especially in relation to allegation 4. It seemed clear to me that no matter how many opportunities we provided Mr Saunders, he had no intention of being honest, open or forthcoming about matters.

63. It surprised me that Mr Saunders didn't wish to give a detailed explanation of his businesses given he was adamant that Ms Robertson already knew of them and he was not concerned with CSL knowing what they were.

64. Regardless, given there was no medical certificate to support an absence from work and Mr Dircks advice that Mr Saunders is seeking to return to work, we thought it appropriate that we write to him, to facilitate that return. I had some concern he may attend work that day or soon after, and I was keen to ensure he had a medical certificate to acknowledge the length of his absence and confirm that he was fit for normal duties and to continue with the disciplinary process.” 85

[98] In the context of the overall evidence before the Commission, the statements of both Ms Dowell and Ms Jackel on this subject lack conviction and, after analysis not only of the actions each took, but also the wider evidence before the Commission, their evidence that they were willing to return him to work if he provided medical clearance and evidence supporting his absence, is implausible. It is more than likely that neither had the intention of returning Mr Saunders to the workplace for so long as he failed to respond to CSL’s allegations to the standard it had set.

[99] Despite being “always available on email and on my mobile phone” and “working intermittently throughout my leave”, Ms Dowell did not positively engage with the communication given on Mr Saunders’ behalf that at 22 December 2016 other than to tell him he needed to get a medical clearance and that he would report to her. Ms Dowell likely saw no reason to do so and likely saw it as not being in CSL’s interests to facilitate his return to work. If Ms Dowell’s evidence had been to the effect that the seriousness of the allegations under investigation were such that Mr Saunders’ return to the workplace until the investigation had been concluded was untenable, that explanation may, with sufficient supporting evidence, be capable of acceptance. However, that explanation is not the one put forward. Instead the explanation put forward by Ms Dowell is that Mr Saunders did not communicate with CSL.

[100] That is not to suggest that there was nothing to query within the correspondence from Mr Dircks on Mr Saunders’ behalf on 22 December 2016. It is an unusual communication in the context of the history of the matter. It is one that properly should have been queried on behalf of CSL. It is one that ought not be directly and automatically accepted at face value. It is one that failed to deal with the fact that Mr Saunders had not given a reason for his absence from work after the last of the medical certificates ran out on 19 December 2016.

[101] CSL sent a letter to Mr Saunders, and only to him, by express post on Friday, 6 January 2017. Despite what the letter of termination says, that he “failed to comply with the reasonable and lawful direction to attend the meetings on 11 and 13 January 2017”, there is nothing within the letter of 6 January 2017 that would amount to Mr Saunders being given a direction to attend the meeting. Instead the letter from Ms Dowell informed Mr Saunders that she would be pleased if he would attend on the appointed day and time.

[102] As is evident, Mr Saunders did not attend the meeting on 11 January 2017 because he was not aware of it, and I accept his evidence. No misconduct arises in relation to the allegation that Mr Saunders failed to attend a meeting on 11 January 2017 – he was not directed to attend the meeting, and in any event he was not aware of it.

[103] Similarly, no misconduct arises in relation to the meetings on 13 and 19 January 2017. While the correspondence pertaining to those dates could give rise to them being a direction to him, the allegation fails because there is no evidence that Mr Saunders was aware, proximate to the dates of the meeting, that he had been directed to attend them.

Opportunism?

[104] What CSL then did to Mr Saunders, even at the time and without the benefit of the evidence of his condition after 22 December 2016, which reasonably was not known to him at the time was opportunistic and designed to be as such.

[105] Until the point at which Mr Saunders failed to attend the meeting on 11 January 2017 the actions of CSL in relation to his later termination were not opportunistic, but their actions after that date may be viewed as opportunistic behaviour.

[106] The correspondence and text messages sent directly to Mr Saunders by CSL on 11 January 2017, 12 January 2017, 17 January 2017 and 18 January 2017 with no copy to his representative were likely opportunistic as well as sent in an endeavour to construct a circumstance in which his employment could be deemed to be at an end. CSL likely acted opportunistically in taking advantage of the mixed messages from Mr Saunders and the lack of contact from him and the deliberate exclusion from their dialogue with Mr Saunders of his appointed representative. In particular, CSL’s actions after 11 January 2017 were more likely than not designed to lead to an end to Mr Saunders’ employment, in the full knowledge that the communications were not being given by them to his representative, Just Relations, and that by 13 January 2017 Mr Dircks had informed Ms Jackel he had “been informed by Mr Saunders’ family that he is currently unwell and appropriate certificates will be forwarded as available”. More likely than not, that advice was simply and deliberately ignored by Ms Dowell and Ms Jackel. Had Mr Dircks communicated on 13 January 2017 something to the effect that he too had not heard from his client, the situation may well be quite different and CSL’s actions from that point forward would likely not be viewed as having been opportunistic.

[107] Instead, what emerges from the evidence is a carefully constructed strategy evident in the steps taken by CSL.

[108] That strategy was likely designed to take advantage of the fact that even though it knew Mr Dircks was Mr Saunders’ representative and that Mr Saunders was ill, CSL was going to do what it could to frame a circumstance in which Mr Saunders could be viewed as having abandoned his employment or be dismissed for a failure to communicate with CSL or attend to its directions.

[109] Such a frame however is contrary to the evidence. Mr Saunders had no intention to abandon his employment. He was ill and the evidence was that he did not know of the correspondence. His representatives had communicated with CSL and its lawyers and, on any reasonable analysis, were going continue to do so. When Ms Pillay was remonstrating with Mr Dircks on 19 January 2017 about whether CSL would accord him the status of a representative, her client was in the process of dismissing him without the courtesy of that being communicated to Mr Dircks until after the event.

[110] The basis upon which CSL was communicating with Mr Saunders changed over the period of December 2016 and January 2017. As late as 19 December 2016 the Ai Group Workplace Lawyers were communicating directly with Mr Dircks and recognising him as Mr Saunders’ representative. However, within that correspondence from Ms Pillay it was said to Mr Dircks that not only did the company await Mr Saunders’ further response but that “we invite him to provide these directly to the business, Ms Susan Jackel, employee relations/industrial relations manager at [email address]. We do note that the business will be in shutdown for the festive season and is unlikely to be able to respond further prior to 5 January 2017. Mr Saunders is able to contact Ms Sue Jackel, on [landline telephone number] if he has any questions in relation to these matters”. 86

[111] On 4 January 2017, Mr Dircks emailed Ms Jackel and asked whether she had returned from leave. She responded that she had received his email of 22 December 2016 and referred it to Ms Pillay.

[112] Within the company’s knowledge at that time and Ms Pillay’s as its legal practitioner, was the fact that Mr Saunders had been absent from work for reason of personal illness for some time, with dates ranging from 21 October 2016 until 19 December 2016. It also knew by 5 December 2016 that Mr Saunders was under the care both of a psychologist and a GP. It also knew that he was seeking to return to work notwithstanding the very strong views that CSL had put to him on 19 December in which it questioned his candour and his honesty. Reasonably, it must have occurred to the people involved in the conduct of this matter that Mr Saunders’ health had at least a question mark over it.

[113] In retrospect, and in context with the evidence before the Commission, the 19 December 2016 notification to Mr Saunders appears to be a carefully constructed and nuanced with intention on the part of CSL likely intended to convey the message that it would no longer recognise Mr Dircks as his representative. If that is indeed what was intended with that communication, it was far too subtle. In any event, any doubt about CSL’s intentions in relation to the exclusion of Mr Dircks was removed by the time of Ms Pillay’s 19 January 2017 email. The company intended to correspond directly with Mr Saunders and it was not going to recognise Mr Dircks as his representative.

[114] On 19 January 2017, Ms Pillay, from the Ai Group Workplace Lawyers, in an email about what had been received from Mr Saunders and what CSL expected, advised Mr Dircks that he should not communicate directly with her client, but that her client would communicate directly with its employee.  87 The email was in the following terms;

“Dear Mr Dircks,

In response to my email, as depicted below sent to you on Friday, 13 January 2017 at 9.36am, you wrote directly to my client, CSL Limited, knowing them to be legally represented at 9.57am that same day. Your communication was addressed to Ms Susan Jackel.

In that communication you advised that you were informed by “Mr Saunders’ family” that he is currently “unwell”. You did not advise who or when his family contacted you. You did not advise why they did not inform CSL Limited, Mr Saunders’ employer of these circumstances. You did not indicate whether you advised them of the importance in doing so. You provided no detail nor evidentiary support to your statement.

In your communication you advised that “appropriate certificates will be forwarded”. As you will no doubt be aware and we assume advised Mr Saunders and/or his family, he is required to apply for leave as soon as practicable and must advise the employer of the period, or expected period, of the leave. To date no explanation or certificates have been received by our client from Mr Saunders to support his absence from the workplace since 20 December 2016, despite your comment. We note you did not indicate a possible or likely return to the workplace.

As you are aware, you wrote directly to our client, CSL Limited by email to Ms Jackel on 22 December 2016 indicating that Mr Saunders was ready to return to work. On 4 January 2017, you again wrote to our client, CSL Limited directly, by email to Ms Jackel enquiring as to her return to the workplace following the office shutdown. She responded to your email and did not until 13 January 2017 hear from you further. On 13 January 2017, you made no reference to these matters.

We do not find the above sequence of events to be consistent.

You further indicated in your communication to Ms Jackel on 13 January 2017, that Mr Saunders is not in a position to receive mail or phone calls. Though it appears he is receiving letters from CSL Limited, given your reference to the correspondence CSL Limited sent to Mr Saunders. You provided no explanation for suggesting CSL Limited cannot communicate or correspond directly with their employee. In light of any desire of Mr Saunders’ to continue employment with CSL Limited, we consider it a rather odd request.

It is appropriate in the circumstances that CSL Limited continue to communicate directly with their employee, Mr Saunders.

As per below, you subsequently responded to my email, on Sunday, 15 January 2017 at 12.10pm. While the response is noted, our preference is that communications are maintained within business hours.

Mr Dircks, while we appreciate that you are not a lawyer and therefore not bound by ethical standards or professional courtesy’s (sic), we nonetheless presume you are aware that a corporation is entitled to legal representation and therefore on account of being aware that CSL Limited has asserted that right we ask that you refrain from communicating directly with our client.

Mr Saunders however, can and should communicate directly with his employer.

Kind regards

Melini” 88 (underlining added)

[115] The bioCSL Enterprise Agreement provides for a disciplinary procedure, set out within Part 3, Clause 17. On 19 August 2016, Mr Saunders had been issued with a “Stage 1 Counselling email and Action Plan”. As part of their preparation for the short meeting with Mr Saunders on 20 October 2016, Ms Jackel and Ms Dowell discussed giving him a copy of the CSL Employee Counselling Process. 89 The Employee Counselling Process sets out a disciplinary process that appears to be drawn from the enterprise agreement, although it does not explicitly identify the representation right that is given to employees who raise disputes under the enterprise agreement’s Dispute Resolution clause. In that regard a person involved in a dispute within the meaning of the Dispute Resolution procedure set out within Part 1, Clause 6 has a right to be represented;

“6.4 Representation

A party to a dispute may appoint any another person, organisation or association to accompany or represent them in relation to a dispute.”

[116] The enterprise agreement does not provide a procedure for commencing a dispute, with the clause seeming to apply broadly without the need for formality to commence a dispute.

[117] Whether or not the enterprise agreement provision applies to Mr Saunders’ circumstance, he was denied representation by CSL at a critical stage of his employment, and when Mr Dircks put critical advice to CSL about the state of health of his client, they simply ignored it. The product of these decisions by CSL was to ignore information that reasonably should have led them to conclude Mr Saunders did not know of their directions; did not reasonably intend to refuse to provide evidence of his medical condition; and that he had no intention of abandoning his employment.

[118] The failure to recognise Mr Dircks and to communicate with him about important information plainly and obviously relevant to his client and his representation of him was disrespectful and discourteous and is to be wholly deprecated. While it was, of course appropriate for CSL to request that communications with its client be through its solicitors, the same must, in fairness be said to be the protocol in reverse, whether or not the representative is a lawyer, paid agent or has some entirely different status. The Fair Work Commission expects representatives to be accorded the opportunity to put forward such matters as they desire on behalf of the person they represent, and must be accorded the opportunity to be kept appraised of developments in relation to the person they represent.

[119] It is likely that the reasons for Mr Saunders’ dismissal are broader than the stated reasons, as set out above, of having failed to seek approval for his absences and for having then failed to attend the meeting dates and times set by CSL.

[120] The letter to Mr Saunders from CSL on 11 January 2017 goes back over the grounds of his responses to CSL and their adequacy. In doing so, it reinforces that one of its major concerns with him was his personal business interests and that in fact this may have been CSL’s most significant concern about Mr Saunders. As a result, the letter raises the question of whether Mr Saunders’ personal business interests and the nature of his business is the reason why Mr Saunders was subjected to an investigation process, and why he was ultimately dismissed, albeit a reason that may be contrary to the stated reasons of termination of employment. The letter informed him of the following, noting for the purposes of context that the references to “snaapit” and “Bedrocks” are references to the names of businesses undertaken by Mr Saunders;

“The business did meet on Tuesday, 10 January 2017 to consider the responses provided on your behalf to the allegations. Of considerable note was the lack of honesty with which you responded to the fifth allegation concerning your private business/s. As you may have been advised, the purpose of putting allegations to you during such an enquiry/interview is to ensure proper consideration of all circumstances is made by the business before arriving at any conclusion. The process inevitably fails where an employee is evasive, dishonest or not forthcoming with their responses.

Despite asking you about your external business ventures. at no time did you respond that you post images to Instagram in pursuit of your business Bedrocks during work hours. At no time in your responses, did you refer to your business snaapit or how or when it is run. Your representative did refer to your store on eBay however he said “Mr Saunders does agree that he runs an online store selling a variety of items, the predominant items being bedlinen.” An enquiry of your online store from eBay depicts your image and identified 153 items for sale, only one of which was bedlinen, the predominance of items being from the adult industry. This has left us with the only conclusion available to be drawn that you lied in your response.

As you know Seqirus remunerates you significantly for your “exclusive engagement” as set out in your employment contract. The lack of honesty in your response has the effect of placing your employment in jeopardy.

Andrew, if we do not hear from you further, we may be forced to conclude that you do not wish to continue your employment with Seqirus.” 90

[121] In the context of the evidence before the Commission, it appears more likely than not that in the course of the workplace bullying investigation being made into Mr Saunders’ complaints against Ms Robertson there were collateral complaints made by her against Mr Saunders which caused CSL to ask others about what they knew of Mr Saunders and his employment; all without being put to Mr Saunders until after the workplace bullying complaint had been determined. The first he knew even of the possibility was the advice to him on 20 October 2016 that he was required to attend a “performance management meeting”, which is how Ms Dowell described it in her evidence, 91 or, as he recollects being informed, a “formal disciplinary meeting on my conduct”.92 Despite stating to Ms Dowell and Ms Jackel in the meeting on 21 October 2016 that it was his preference to find out what the allegations actually were, they declined to do so.93 Instead, the details of the allegations were not given to Mr Saunders until the letter to his then solicitors from Ai Group Workplace Lawyers on 18 November 2016.

[122] The six allegations within that letter are set out in the material above. Some of those allegations may well resolve against Mr Saunders’ interests if they were the subject of a full investigation. Others, on the basis of the material before the Commission would likely not be established to the requisite standard of proof, or if they were, would be unlikely to reasonably lead to his termination of employment. Even the number of allegations made against Mr Saunders that CSL sought to have answered by him sets out a curiosity about what the company’s true motives in relation to his employment actually were.

[123] The Sixth Allegation in relation to Mr Saunders conduct towards Ms Robertson was first put forward and then pulled away, with it being said with some level of dissembling on the part of the Respondent that it was never intended to be interpreted as an allegation in the first place, but merely something that may have to be answered should it be necessary to do so. The way in which this was done allows it be to be seen as a clumsy feint and parry – something that was intended to rattle Mr Saunders, which it obviously did, and then having heightened his state of alarm, CSL disingenuously pulled back from the faux allegation without actually withdrawing it, just in case it may need to be used again.

[124] In the context of the matters being put to Mr Saunders, repeatedly and with accusing force, the argument that “there was no Sixth Allegation posed to Mr Saunders” representing that the subject matter was not actually an allegation, but merely something of which he should be aware, is self-serving and disingenuous. The draftsperson of the correspondence likely wanted to mask their true intent, but did not do so especially capably or elegantly. Mr Saunders and his representatives were entitled to treat it as a sixth allegation against him and which could be a threat to his ongoing employment.

[125] Consideration of all of the evidence before the Commission on these allegations leads to the view that, in the course of undertaking the workplace bullying investigation and the other information trawling that was then likely going on in relation to Mr Saunders’ own employment, CSL most likely formed the view that he had to go once it established that he had some level of private business operation which it considered to be contrary to its contract of employment. The material submitted in evidence by the Respondent through Ms Jackel’s witness statement about Mr Saunders’s ebay sales activities, reinforces this likelihood.

[126] Before turning to that material, it is acknowledged that the contract of employment restricts the capacity of Mr Saunders to “set yourself up or engage in private business or undertake any other employment”. The fact that he was operating two very small scale businesses is potentially in conflict with that restriction in his contract of employment, with him developing and attempting to sell marketing collateral and also selling things through an eBay account. However, the scale of those businesses together with the absence of a major conflict of interest between those activities and his work for CSL in and of themselves would likely not be reasons for dismissal, although of course that would have to be a subject of detailed enquiry.

[127] So why then did CSL likely form the view that because of his extracurricular activities Mr Saunders had to go? The answer to that question is most likely within two of the larger attachments to Ms Jackel witness statement being a copy of Mr Saunders “snaapit” and eBay stores and comprising 58 pages of the things sold by him, many of which are adult products, covering an extensive range of adult pleasure exotica such as vibrators, dildos, butt plugs, and other sex devices and toys. 94 Mr Saunders response to CSL on 9 December 2016 conceded “that he runs an online store selling a variety of items, the predominant items being bedlinen”.95 The response, however did not refer to the store selling adult pleasure goods; it is fair to say from perusal of the items that bedlinen (even of an adult type) does not feature to any great extent, if at all.

[128] Mr Saunders evidence is that the sales made from the eBay store were incidental. In the three months prior to the hearing he sold goods to the value of $2,809. The cost of goods sold (including eBay charges) was $2,328, leaving a gross profit of $481. There is no specific evidence before the Commission about the revenue stream that may have come from the snaapit site.

[129] Reasonably if CSL considered the running of either the snaapit site or an eBay store was in breach of its employment contract it could have told him that with an “end it now” directive and that could have been the end of the matter. However, in the context of both the evidence in relation to the allegation about Mr Saunders extracurricular activities as well as the other allegations that were made against him, the Commission is drawn to the probability that from the time CSL found out about the stores and what they sold, it had already made the decision to part company with him.

[130] Evidence was led in the hearing regarding allegations of poor work performance on the part of Mr Saunders. Despite the concerns expressed by Ms Dowell about his performance and that he had been provided with a “Stage 1 Counselling email and Action Plan” in August 2016, these matters do not rise to the level that could be regarded as a contributory factor to dismissal, let alone a reason for dismissal. The matters were at far too early a stage to be considered much more than subjects that needed to be discussed and addressed. In any event, there is insufficient evidence to find that poor work performance was a reason for dismissal.

[131] None of the reasons for dismissal considered by the Commission, stated or likely, amount to a sound, defensible or well-founded reason for the termination of Mr Saunders’ employment.

[132] In all respects the Commission finds that CSL acted to terminate the employment of Mr Saunders without there being a valid reason for his dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees).

(b) whether the person was notified of that reason

[133] The evidence establishes that Mr Saunders was notified of reasons for his termination, being his alleged failure to seek approval for his absences and for having then failed to attend the meeting dates and times set by CSL. It also establishes there were likely other reasons for termination, as set out above, and especially connected with his personal business interests. However, those matters were never put to Mr Saunders as being a reason or reasons for termination.

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

[134] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal. 96 I have not found there was a valid reason for Mr Saunders’ dismissal.

[135] While Mr Saunders had an opportunity to respond to the six allegations made by CSL about his conduct, those responses were not invited in the context of CSL contemplating his dismissal for any or all of them.

(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

[136] The evidence is that there were no discussions with Mr Saunders about his dismissal.

[137] It is to be noted, however, that Mr Saunders’ chosen representative was not informed of the processes being employed by the company to terminate Mr Saunders’ employment.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[138] Mr Saunders was not dismissed because of unsatisfactory performance and so this factor is a neutral consideration in my decision.

(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

[139] CSL’s Employer Response Form indicates that at the time Mr Saunders was dismissed it employed 830 people. There is no evidence before the Commission that its size impacted on the procedures it followed in effecting Mr Saunders’ dismissal.

(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;

[140] The evidence in this matter includes that CSL had access to and did access dedicated human resource management specialists or expertise in making its decision to dismiss Mr Saunders.

(h) any other matters that the FWC considers relevant

[141] There are several other matters that are relevant for consideration in this matter.

[142] The first is the complaint of workplace bullying made by Mr Saunders against Ms Robertson. He made the complaints with some significant particularisation to CSL who appointed an external investigator, which is a decision to be held to CSL’s credit. The appointment of an external investigator had the potential to properly find the facts of Mr Saunders complaint as well as to evaluate the conduct of all concerned as to whether or not workplace bullying had occurred.

[143] However, the feedback given to Mr Saunders can only be regarded as exceptionally and unduly brief and, in the circumstances of his complaint and its significance to him, woefully inadequate. The matters alleged by Mr Saunders against Ms Robertson were hardly unparticularised or capable of being answered merely as to whether the claim was substantiated or not. While of course an investigator, and indeed this Commission, ultimately answers whether allegations have been substantiated or not, that is ordinarily done with reasons being stated, and only given after an identification of the relevant evidence and an indication of the appropriate weight to be given to that evidence. To do otherwise runs the risk of being procedurally unfair not only to the complainant, but also to the person complained about, and anyone else involved in the process.

[144] CSL does not say that a comprehensive and balanced report was not produced, just that they did not wish to provide it to Mr Saunders.

[145] What was presented to Mr Saunders about the outcome of his bullying complaint was a bland and superficial indication that 13 of the allegations were substantiated; 1 was substantiated in part and 5 were unsubstantiated. He was then informed that 3 of the allegations showed Ms Robertson’s conduct not to be consistent with the company’s Diversity and Workplace Behaviour Policy and that “[a] discussion will be held with Ms Robertson regarding the outcome of this investigation and where appropriate action commenced” 97

[146] As a means of inspiring confidence in the mind of a workplace bullying complainant that their complaints had been taken seriously and acted upon and that things would change in their employment for the better, the correspondence and CSL’s verbal communications to Mr Saunders failed miserably.

[147] It would be reasonable for a person receiving such correspondence about their detailed workplace bullying complaints to view the closeout letter as an endeavour to shut down the whole subject matter with the minimum possible discussion.

[148] That this was the likely intended result is established by what occurred immediately after provision of this correspondence to Mr Saunders, which was the advice to him that his own performance was to be subject to disciplinary action.

[149] That further scrutiny of his own performance and conduct becomes the second other matter to be considered in relation to s.387(h).

[150] Mr Saunders was told by Ms Dowell within an hour or so of having received the information about his bullying complaints that he “had to cancel all meetings for the next day as [he] would be required to attend a formal disciplinary meeting on my conduct with herself and a HR person”. 98

[151] Ms Dowell’s evidence is that at about the same time she became his direct manager.

[152] Despite Ms Dowell’s assertions about the change in Mr Saunders’ reporting arrangements, there is no evidence of any real significance before the Commission that demonstrates she actually ever became the primary contact with Mr Saunders. Similarly there is no evidence of any substance before the Commission that she is correct when she puts forward that Mr Saunders stopped having any direct contact with Ms Robertson. As a senior manager Ms Dowell may well have assumed that someone subordinate to her would take responsibility and initiate the change, but there is no evidence that ever happened. In context, Ms Dowell’s evidence on these matters shows unwillingness on her part to accept that the reporting line never changed and that no communication of a change was ever made. Ms Dowell is unable to point to any corroborative evidence whatsoever, whether written or oral, that she ever communicated this desire to anyone. She might have thought it was a good idea; she might have even hoped that a change might occur, however they are quite different matters from what Ms Dowell would have the Commission accept as truth.

[153] Further her evidence does not cogently or sufficiently address the circumstances of how or why a performance management meeting was decided upon by the company as being required on 21 October 2016 saying merely that:

“64. The performance management meeting arranged for 21 October 2016 was to be conducted by Ms Susan Jackel, Employee Relations/Industrial Relations· Manager and I.

65. I told Andrew, face to face, the day prior that that there would be a meeting the next day with HR. It was a bit after lunch when I told him and he seemed a little agitated, not emotional. It wasn't any different to how other people have reacted in the same situation. He was supposed to go to Sydney the next day and he had to cancel so there was some rescheduling he was required to do.” 99

[154] Her evidence in relation to these matters is not accepted.

[155] When, eventually, the complaints about his own performance and conduct were particularised to him it would have been inconceivable to him that there had been a process on the part of CSL to trawl through so much of his background, history and employment record as it could find of Mr Saunders for the purposes of commencing a workplace investigation. Perhaps some of those matters may have come from Ms Robertson, but it would have been highly unlikely that all of them would have. As the matter progressed it would have become perfectly obvious to Mr Saunders that by no means had all the complaints now being raised against him by CSL come from Ms Robertson, that instead there was likely a concerted campaign to find material that could be held against him.

[156] The relevance of these matters to this decision is that the reasons advanced by CSL for Mr Saunders’ termination of employment reasonably do not explain the totality of the company’s conduct in relation to him. It is only when the total history of the relationship between CSL and Mr Saunders is considered that sense is made of his treatment in late 2016 and ultimately his termination of employment.

[157] As has been set out above, I do not consider that at the time CSL dismissed Mr Saunders it had a valid reason for doing so. No consideration of the other criteria within s.387 leads away from a finding that there should not be consequential finding that Mr Saunders was unfairly dismissed.

[158] Mr Saunders dismissal was both harsh and unreasonable to the extent that it relied upon his failure to provide sufficient justification for his absence from work in late December 2016 and January 2017; it was harsh, unjust and unreasonable to the extent that it relied upon his failure to comply with directions to attend meetings during January 2017. It was unjust and unreasonable to the extent it relied upon any matter stemming from the six allegations put by CSL to Mr Saunders from October 2016. I therefore find that Mr Saunders was unfairly dismissed by CSL and I turn to the question of remedy.

REMEDY

[159] The sections of the Act dealing with remedy once a finding of unfair dismissal has been made are set out within ss.390 – 392.

[160] Pursuant to subsection 390(3) an order for the payment of compensation to a person must not be made unless the Fair Work Commission “is satisfied that reinstatement of a person is inappropriate” and also that the Commission “considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[161] In the hearing of the matter Mr Saunders did not seek reinstatement, putting forward that the matters between him and CSL are too far gone for the employment relationship to be re-established. I concur and am satisfied in all circumstances that it would be inappropriate to reinstate Mr Saunders and that instead I should give consideration to an order the payment of compensation.

[162] The matter of compensation is dealt with in s.392 of the Act, which is in these terms:

“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.”

[163] I consider that in all the circumstances an order of compensation is appropriate to make. In forming my views about the quantum of compensation, I consider each of the criteria with in s.392(2).

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

[164] There is no evidence before the Commission in relation to the effect of an order for compensation on the viability of CSL. I take into account that it is a public company and that at the time of Mr Saunders’ dismissal it employed 830 people.

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

[165] Mr Saunders’ service with CSL was relatively short, being less than two years, having commenced employment on 20 July 2015 and ending employment on 19 January 2017.

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

[166] In matters in which compensation is a consideration, the Commission ordinarily makes an assessment of remuneration the employee lost through dismissal, which in turn requires a finding in relation to “anticipated period of employment”. The Full Bench of the Australian Industrial Relations Commission has observed the following in relation to these matters:

“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

[167] Mr Saunders was dismissed on 19 January 2017 and had not been at work for some months by that time. The evidence is that his health had been poor and had not improved significantly by the time of the hearing. His evidence at the hearing was that it had only been recently that his psychologist had discussed with him plans to improve his health

[168] A significant question arises because of the circumstances of Mr Saunders since October 2016 as to whether, in late January 2017, he had either the inclination, the health or the resilience to confront in-person the allegations that were being made against him. While serious questions must arise as to whether CSL was acting in good faith in relation to at least some of the allegations it made or whether they had come about as some form of punishment for having raised a workplace bullying complaint against Ms Robertson, Mr Saunders nonetheless had an obligation to confront the allegations by attending meetings with CSL answering the questions. He did not attend the meetings in January 2017 because he was not aware of them. However, properly notified and scheduled with an opportunity for him to bring to the meetings a support person, it would not be unreasonable for Mr Saunders to be required to attend and to actively participate in the meetings.

[169] What then becomes the anticipated period of employment if, instead of dismissing Mr Saunders on 19 January 2017, his employment had continued but subject to the obligation that he attend such meetings?

[170] In significant respects CSL’s proposition, earnestly repeated on multiple occasions that Mr Saunders had not responded or provided information to them, is without merit. At least some of the information and responses provided on behalf of Mr Saunders meets what could be expected to be the requisite standard of response. If that was the case then it would fall to CSL to either conduct further investigations or to make a determination based upon the evidence it had in relation to the responses it was given. In regard to some of the other matters, Mr Saunders indeed can be expected to provide further information after which CSL would have to make its decision.

[171] Making a prediction about the outcome of the overall investigation process and its impact on Mr Saunders’ anticipated period of employment is by no means straightforward. In relation to some of the allegations it could be expected that they are found not to be substantiated. In respect of other of the allegations, while they may be substantiated it would be unlikely that they could reasonably be the basis for dismissal from employment; however they could be expected to be the subject either of a warning or some other form of disciplinary outcome. Given what the company has had to say about the Sixth Allegation, putting to Mr Saunders that it was not an allegation at all, no adverse findings against Mr Saunders could reasonably made anywhere in the foreseeable future.

[172] Seeing through the investigation process, if it actually continued, I would find it difficult to take the view that the matters complained of, with the possible exception of the Second Allegation, would lead to the terminationby CSL of Mr Saunders’ employment for a valid reason.

[173] The continuing issue in the First Allegation is related to a direction given by the company to delete a recording which Mr Saunders may say assists him defend himself. In context if his failure to delete it was reasonably connected with a defence of allegations that may be made by Ms Robertson against his interests, an adverse finding against him may lead to a warning, but is unlikely to lead to dismissal. The Third and Fourth Allegations are contextually not matters of misconduct but work performance and would not reasonably lead on its own to Mr Saunders’ dismissal. In any event, the Fourth Allegation appears to revolve around a difference of opinion between Ms Robertson and Mr Saunders and it is unlikely that Ms Robertson’s communication to Mr Saunders (if it occurred) would amount to “a lawful and reasonable direction”, the penalty for infringement of which is dismissal. The Fifth Allegation, going to Mr Saunders external business interests while capable of being found to have been substantiated would be unlikely to require termination of employment.

[174] It is to be noted, of course, that Ms Robertson was not dismissed by CSL as a result of its Code of Conduct findings against her. Given that is the case it would reasonably be expected that CSL would apply similar leniency to Mr Saunders even if adverse findings were made against him. In comparison to Mr Saunders, the adverse findings against Ms Robertson went to a finding that her conduct was not consistent with the CSL Diversity and Workplace Behaviour Policy for allegations about things she said to or about Mr Saunders and that she failed as a manager to admonish an employee who made an unkind comment about him.

[175] That is not to say that the Commission could reasonably make a finding that Mr Saunders’ employment could be expected to continue indefinitely from late June 2017. It could not. Whether for reason of health, lack of resilience or lack of a desire to confront the allegations, Mr Saunders has not actually personally answered them to the CSL management and accordingly some significant question arises about whether he would do so in the future. The state of the evidence before me leads to the view that it would be unlikely that he would see the entire process through or that if he did, it would be unlikely that following adverse findings against him, that he would continue in employment with CSL for very long.

[176] My assessment therefore is that the anticipated period of employment for Mr Saunders, had he not been dismissed on 19 January 2017, and had he been willing and well enough to continue at work from the date, as well as to subject himself to the investigation process, would be between six weeks and three months at most, which equates to the time it would likely take to properly frame the scope of an investigation and the responses that would satisfy a reasonable employer, to schedule meetings and attend them, as well as to answer any questions the Applicant may have about processes and conflicts within the matters being put to him, and finally to determine the matter. For the reason that I consider, on the basis of the evidence before me that the outcome of the investigation process is that dismissal is probably a less likely outcome than alternatives, I would put the period near to the mid-point of the indicated range, with the expectation that Mr Saunders himself may have ended his employment at around that time even if not dismissed from the investigation. For the purposes of this decision I set the period at 8 weeks.

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

[177] At the time of the hearing Mr Saunders had not taken any significant steps to seek alternative employment. His evidence was that it had only been recently that his psychologist had discussed with him plans to improve his health. It was his own opinion that he was not yet at the stage of starting to looking for further work.

(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

[178] According to the letter of termination provided to him, Mr Saunders received from CSL upon termination a payment of 4 weeks pay in lieu of termination and the payment of his accrued annual leave entitlements. I have taken into account this payment in lieu of termination in forming my view above of the anticipated period of employment.

[179] The evidence also includes that in the three months prior to the hearing Mr Saunders received some income from his personal business interests; in that time the costs of goods sold (including eBay charges) was $2,328, leaving a gross profit of $481. I consider that income to be incidental. While it has been taken into account by me I do not consider a deduction to be necessary for the amount of compensation ordered.

(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

[180] There is no evidence that Mr Saunders is presently employed or likely to earn any income other than the incidental amounts he earns from his two businesses.

[181] I find the compensation I propose does not need to be adjusted to take account of income he might receive between the making of the order for compensation and the actual compensation.

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

[182] I am not aware of any other considerations which might be relevant to the order of compensation, and have considered all of the circumstances of the case in determining an appropriate remedy.

[183] Section 392(3) requires that if the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person then the FWC must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

[184] Although CSL characterises Mr Saunders’ behaviour as misconduct, I am not satisfied in all circumstances that it was and accordingly I do not discount the amount of compensation for that factor.

CONCLUSION AND ORDERS

[185] After consideration of the foregoing issues, I find that the Applicant was dismissed and that it was unfair within the meaning of the Act.

[186] I find that reinstatement is not an appropriate remedy in this case.

[187] I find that compensation is appropriate.

[188] The approach by the Fair Work Commission in these matters, and which I follow here, is to estimate the remuneration the employee would have received if they had not been dismissed (usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment); deduct any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment; deduct an amount for contingencies; consider the impact of taxation and adjust the figure accordingly; and assess the figure against the compensation cap set by s.392(5). 101

[189] The reasoning associated with an adjustment for contingencies was referred to in the matter of Slifka v J W Sanders Pty Ltd, 102 with an adjustment potentially being made for events that may arise if employment continued, with the effect of interrupting employment, such as for reasons such as ill health, lawful termination by the respondent, voluntary resignation, or closure of the respondent’s business. In Ellawala v Australia Post Corporation103, the Full Bench considered the application of a factor for “contingencies”, with it being held that;

“A discount for contingencies is a means of taking account of the various probabilities that might otherwise affect earning capacity. At the time of hearing any such impact on an applicant's earning capacity between the date of termination and the hearing will be known. It will not be a matter of assessing prospective probabilities but of making a finding on the basis of whether the applicant's earning capacity has in fact been affected during the relevant period.” 104

[190] The Full Bench in Bowden v Ottrey Homes 105 noted that contingencies may not be appropriate to deduct with all of the projected period of continued employment having passed.106

[191] In relation to the matter of contingencies, I find there are none that ought to be taken into account in this matter, since all of the projected period of continued employment has passed.

[192] Both parties agree that Mr Saunders annual salary at the time the dismissal was $158,028 which after 9.5% superannuation became an annual total of $173,041. The weekly rate for his salary, not including superannuation, is $3,039.

[193] The Commission’s order for compensation will be for a payment of 8 weeks compensation at the rate of $3,039, with a further amount of 9.5% for the purposes of superannuation, which is a total of $24,312 payable as wages with a further amount of $2,310 payable to Mr Saunders’ superannuation account on his behalf, being a grand total of $26,622. There will be no deduction for misconduct, since no finding of misconduct has been made and there would be no deduction for contingencies. I will take account of the impact of taxation by requiring that the amount to be paid to Mr Saunders will be taxed according to law.

[194] The above amount does not exceed the compensation cap applying at the time of dismissal.

[195] An order requiring CSL to pay to Mr Saunders the total amount $26,622 taxed according to law, is issued in conjunction with this decision. The total will be ordered to be split between a payment directly to him, and a payment to his superannuation account, on his behalf.

[196] In accordance with this decision, $24,312, less taxation, is to be paid directly to Mr Saunders, and $2,310 is to be paid to his superannuation account. The order will require the payments to be made within 14 days of the date of this decision.

2016 New sig and seal

COMMISSIONER

Appearances:

M. Addison for the Applicant

M Pillay for the Respondent

Hearing details:

11, 12 and 19 May

2017

Final written submissions:

16 June

2017

Melbourne.

 1   AE415799.

 2   Exhibit R3, CSL Outline of Submissions 28 April 2017, [4].

 3   Exhibit A7, Witness Statement of Andrew Saunders, Attachment A1, Clause 19.

 4   Ibid, clause 3.

 5   Exhibit R1, Witness Statement of Danielle Dowell, Attachment DD-11.

 6   Ibid, [32] – [34].

 7   Ibid, [35] – [46].

 8   Ibid, [50].

 9   Ibid, [40] – [44].

 10   Exhibit A7, Attachment A7.

 11   See Part 3: Performance Management, Clause 17 Acceptable Workplace Behaviour and Performance

 12   Exhibit A7, [22].

 13   Exhibit A5, letter from Seqirus/CSL to Mr Saunders, 20 October 2016.

 14   Ibid, attachment to the letter, provided by CSL to the Commission for the purposes of interpretation.

 15   Exhibit R1, [62].

 16   Exhibit A5.

 17   Exhibit A7, [29]

 18   Exhibit R2, Witness Statement of Susan Jackel, [8].

 19   Ibid, [4].

 20   Ibid, [14].

 21   Ibid, [16].

 22   Ibid, [18] – [22].

 23   Exhibit A7, [40].

 24   Exhibit A7, Attachment A7.

 25   Exhibit R2, Attachment SJ-5.

 26   Exhibit R2, Attachment SJ-7.

 27   Ibid.

 28   Ibid, Attachment SJ-13.

 29   Ibid.

 30   Ibid.

 31   Ibid.

 32   Exhibit R2, [56].

 33   Ibid, Attachment SJ-14.

 34   Ibid.

 35   Ibid.

 36   Ibid.

 37   Ibid, [59]

 38   Ibid, [64].

 39   Exhibit R1, [97].

 40   Ibid, [98].

 41   Ibid, Attachment SJ-17.

 42   Ibid, Attachment DD-8

 43   Exhibit R2, [71].

 44   Ibid, Attachment SJ-19.

 45   Ibid, [73].

 46   Exhibit R1.

 47   Exhibit R2.

 48   Exhibit R1, Attachment DD-10.

 49   Exhibit R2, Attachment SJ-21.

 50   Ibid.

 51   Exhibit R1, [114].

 52   Ibid.

 53   Ibid, Attachment SJ-22.

 54   Exhibit A7, Attachment A12.

 55   Exhibit R2, [83] – [84].

 56   Ibid. [83].

 57   Exhibit R2, Attachment SJ-23.

 58   Ibid, [84].

 59   Ibid, [85].

 60   Exhibit R2, [18] – [20].

 61   Exhibit A7, Attachments A5 and A11.

 62   Exhibit A7, [79].

 63   Exhibit A2, WorkSafe Certificate of Capacity

 64   Exhibit R2, Attachment A6.

 65   Exhibit A7, Attachment A14, Exhibit R2, [73].

 66   Exhibit R2, 80.

 67   Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520.

 68   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 69   Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].

 70   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

 71   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

 72   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].

 73   Selvachandran v Peteron Plastics (1995) 62 IR 371 at 373.

 74   Ibid, Attachment SJ-22.

 75  Saunders, Attachment A12.

 76   Edwards v Giudice (1999) 94 FCR 561 [6]‒[7].

 77   Budd v Dampier Salt Ltd (2007) 166 IR 407 at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.

 78   King v Freshmore (Vic) Pty Ltd (unreported, 2000) Print S4213, [24].

 79   Streeter v Telstra Corp Ltd (2008) 170 IR 1.

 80   Exhibit A7, Attachment A6.

 81   Exhibit R2, Attachment SJ-17.

 82   Exhibit A7.

 83   Exhibit R1.

 84   Exhibit R2, 59.

 85   Exhibit R2.

 86   Exhibit R2, Attachment SJ-13.

 87   Exhibit R2, SJ-23.

 88   Exhibit R2, SJ-23.

 89   Ibid, 10.

 90   Exhibit R2, Attachment SJ-18.

 91   Exhibit R1, [64].

 92   Exhibit A7, [28].

 93   Ibid, [35] – [36].

 94   Exhibit R2, Attachment SJ-8

 95   Ibid, Attachment SJ-7.

 96   Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print S2679 [41].

 97   Exhibit R5.

 98   Exhibit A7, [28].

 99   Exhibit R1.

 100   Ellawala v Australian Postal Corporation, AIRCFB (2000), Print S5109, at [33] and [34].

 101   Haigh v Bradken Resources Pty Ltd [2014] FWCFB 236, with reference to Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 32, and Ellawala v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109 [33].

 102   (1995) 67 IR 316

 103   [2000] AIRC 1151, Print S5109,

 104   Ibid, at [41] - [43]

 105   (2013) 229 IR 6, [2013] FWCFB 431

 106   Ibid, at [54].

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