[2019] FWC 29
FAIR WORK COMMISSION

DECISION


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

Mr Peter Angelakos
v
Coles Supermarkets Aust Pty Ltd T/A Coles Supermarkets
(U2018/3306)

COMMISSIONER HUNT

BRISBANE, 4 FEBRUARY 2019

Application for an unfair dismissal remedy - alleged breaches of workplace policy - workplace bullying and sexual harassment – allegations substantiated following investigation – reasons for dismissal valid despite shortcomings in investigative process – dismissal not harsh, unjust or unreasonable – application dismissed.

Introduction

[1] Mr Peter Angelakos has made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by Coles Supermarkets Aust. Pty Ltd T/A Coles Supermarkets (Coles).

[2] Mr Angelakos commenced employment with Coles on 1 August 2009 at the Hurstville Station Supermarket in Sydney. Mr Angelakos remained at the Hurstville Station Supermarket until he resigned on 15 May 2016. He relocated with his family to Mackay and recommenced work with Coles on 8 August 2016 as a Team Member at the Coles Mackay store. He was promoted to Duty Manager at the Coles Supermarket in Moranbah (Coles Moranbah; the store) on 8 May 2017. Mr Angelakos held that position until he was dismissed on 9 March 2018.

[3] A telephone directions conference occurred on 29 May 2018 for the purpose of programming and scheduling the matter for hearing. During the conference, Mr Angelakos applied to appear at the hearing by video link on the basis that he had relocated to Sydney since filing his application. On 12 June 2018 I issued a decision pursuant to s.589(1) of the Act granting Mr Angelakos permission to appear by video link; my reason for granting the application is outlined in the decision. 1 Coles was subsequently granted permission to appear by video link.

[4] It is not contested that Mr Angelakos is a person protected from unfair dismissal pursuant to s.382 of the Act.

Determinative Conference

[5] The matter was listed for hearing before me on 17, 18, 19 and 20 September 2018 in Brisbane. Mr Angelakos appeared via video link from Sydney. Coles appeared via video link from Moranbah. Coles’ witnesses gave evidence by video-link from Moranbah and in person from Brisbane. Mr Angelakos did not call any witnesses to give evidence on his behalf.

[6] Given the logistical complexity of the matter and lack of an objection from Mr Angelakos, Coles was granted leave pursuant to s.596(2)(a) of the Act to be legally represented at the hearing by Mr Will Spargo, instructed by Ms Alannah Slater, both from Lander & Rogers Lawyers.

[7] At the commencement of the hearing I proposed to the parties for the matter to proceed by way of determinative conference, rather than a hearing, due to the complexity of the matter, the large number of witnesses and noting that Mr Angelakos was self-represented. That proposal was not opposed and I decided that the matter should proceed as a determinative conference. In this decision the determinative conference of this matter is referred to as “the conference”.

[8] On 4 February 2019, I issued an Order [PR704453] pursuant to s.594 of the Act to anonymise the names of five of the witnesses relied on by Coles and a further person involved in the circumstances concerned in this matter. The reason for that order was to protect the identity of the witnesses as some were, at the time of giving evidence in this matter aged less than 18 years, and the other persons wished to remain anonymous for personal reasons, including Moranbah being a relatively small town in regional Queensland. No objection was made to the making of the order and I considered it appropriate to do so.

[9] Mr Angelakos gave evidence as a witness in his own case. The following witnesses gave evidence for Coles, or if they were not required for cross-examination, their witness statement was admitted into evidence:

•  AB, former Team Member, Coles Moranbah;

•  Mr Patrick Morton, Store Manager, Coles Moranbah;

•  Ms Mo Mwango Mulenga, Senior Consultant, Advisory Services, Coles

•  CD; former Team Member, Coles Moranbah;

•  Ms Linda Daniels, Duty Manager, Coles Moranbah;

•  Ms Linda Powyre, Team Member, Coles Moranbah;

•  EF, Team Member, Coles Moranbah;

•  IJ, Team Member, Coles Moranbah;

•  GH, Team Member, Coles Moranbah;

•  Ms Josephine Bainbridge, Assistant Store Manager, Target Moranbah;

•  Ms Leanne van Eykelenborg, Team Member, Coles Moranbah;

•  Mr Anthony Wood, Dairy in Charge, Coles Moranbah;

•  Ms Trudy Maher, Team Member and Supervisor, Coles Moranbah;

•  Ms Yueh Ching (Fiona) Lin, Supervisor, Coles Moranbah;

•  Ms Desley Channells, Bakery Manager, Coles Moranbah;

•  Ms Alina Bidewell, Regional People & Culture Manager, Coles;

•  Ms Alannah Slater, Lawyer, Lander & Rodgers.

Reasons for dismissal

[10] Mr Angelakos was dismissed following an investigation prompted by two separate complaints made close in time by young female employees of the Moranbah store, alleging that Mr Angelakos had acted inappropriately towards them. The employees were aged 17 and 23. Mr Angelakos is 52 years of age. In the course of the investigation by Coles, two more female employees of school age made allegations that Mr Angelakos had behaved inappropriately towards them. Further employees subsequently made complaints such that there were eight complainants.

[11] Allegations surfaced in very late January 2018 and made their way to Coles’ Advisory Services department on 1 February 2018. Ms Mo Mulenga is a Senior Consultant providing employee relations advice, support to managers during disciplinary matters, undertaking workplace investigations and representing Coles at conciliation conferences. Ms Mulenga reviewed the complaints and formed the view that if the allegations were substantiated, they may amount to workplace bullying, victimisation and/or sexual harassment in breach of Coles’ Code of Conduct and the Equal Opportunity Policy.

[12] Mr Angelakos was immediately stood down with pay from 1 February 2018.

[13] On 6 February 2018 Mr Patrick Morton, Store Manager of the Moranbah store provided to Ms Mulenga contact details of all employees who had submitted written complaints. Mr Morton had only recently commenced in the role that week.

[14] On 7 February 2018 Ms Mulenga telephoned Mr Angelakos and introduced herself, informed him of the investigation process, inquired as to his wellbeing, and encouraged him to utilise Coles’ Employee Assistance Program.

[15] By the time Ms Mulenga had spoken with all complainants, there were 39 formal allegations to be put to Mr Angelakos.

[16] Ms Mulenga organised to meet with Mr Angelakos on 23 February 2018 in the Target Country Moranbah store, next door to the Coles store. It is Ms Mulenga’s evidence that Mr Angelakos declined to respond to the allegations put to him, and requested that he be allowed to put his responses in writing at a later date. He stated that he wished to obtain legal advice, and Ms Mulenga permitted a period of time to allow Mr Angelakos to obtain legal advice.

[17] On 1 March 2018 Mr Angelakos emailed his written responses to allegations 1-11. On 2 March 2018 he emailed his written responses to the remaining allegations. Ms Mulenga organised a telephone meeting with him within the hour to go through his responses. Mr Angelakos was becoming flustered, so Ms Mulenga agreed to call him later in the day, which she did.

[18] On 7 March 2018 Ms Mulenga completed her report into her investigation, making relevant findings. She found that the bulk of the allegations were made out, including sexual harassment against a female team member under the age of 18. Mr Angelakos’ conduct towards the complainants was found to be in breach of the Code of Conduct and the Equal Opportunity Policy.

[19] The findings were communicated to Mr Angelakos on 8 March 2018, and an ‘outcome meeting’ was held on 9 March 2018. The evidence in relation to those two conversations is detailed later in the decision.

Mr Angelakos’ evidence

[20] Although directions were set for the filing of each party’s material prior to the conference, Mr Angelakos did not provide a conventional written statement or outline of his submissions. Mr Angelakos’ submissions prior to the conference consisted only of a document authored between him and Ms Mulenga which set out the allegations against Mr Angelakos that were investigated by Ms Mulenga, and Mr Angelakos’ written responses to those allegations. That document is discussed in detail below.

[21] The remaining evidence is drawn from his original application to the Commission in this matter, evidence given at the conference and matters which were uncontested between the parties.

Work at Coles Moranbah

[22] Upon taking up the Duty Manager role in the Moranbah store on 8 May 2017, Mr Angelakos lived with his wife and two primary-school age children in a rental property owned by Coles.

[23] No performance issues were raised to him during his eight years’ total service with Coles. Mr Angelakos stated that he successfully completed an ‘Emerging Leaders’ program during his time at Coles Moranbah. 2

[24] Mr Andrew Holloway was the Manager of Coles Moranbah at the time that Mr Angelakos started as Duty Manager. Mr Holloway held the Manager position until 22 January 2018. Mr Patrick Morton was appointed to the Manager position at Coles Moranbah on 29 January 2018.

[25] Mr Angelakos stated that during the time Mr Holloway was Store Manager, he raised with Mr Angelakos only one issue; a complaint by a staff member, Mr Jacob Miels in late 2017. He was informed that it would be referred to an Area Service Manager, but he did not hear anything further and assumed the matter had been resolved. Mr Miels’ complaints were later put to Mr Angelakos as part of Ms Mulenga’s investigation.

[26] Otherwise, Mr Angelakos’ evidence was that he continued to work at Coles Moranbah without significant incident until 1 February 2018.

Suspension and commencement of investigation

[27] On 1 February 2018 Mr Angelakos was at work when he was met by Mr Alastair Hardy, Dry Goods Manager. Mr Hardy told him that he had received a call from Mr Morton, and he was required to go to the store office for a meeting.

[28] Mr Morton attended the meeting by telephone and informed Mr Angelakos that several allegations had been made against him. The allegations included that he had breached Coles’ company policies, including in relation to alleged sexual harassment, unwanted comments and inappropriate behaviour. Mr Angelakos was put on paid suspension while Coles investigated the complaints. Mr Angelakos was told not to attend for work until he was otherwise informed, and he was directed to take his personal belongings home and to leave the premises quietly, which he did. 3

[29] The policies that Mr Angelakos was alleged to have breached are the Coles Code of Conduct (the Code) and the Equal Opportunity and Appropriate Workplace Behaviour Policy (EO Policy).

[30] The Code sets out responsibilities for all Coles employees and additional responsibilities for employees in a leadership role. The expectations of team members set out in the Code are: 4

•  Treat everyone with whom you interact with dignity, courtesy and respect;

•  Perform your role to the best of your abilities and always in accordance with Coles values;

•  Make truthful statements, promises or commitments that you and Coles are able to meet;

•  Learn about and follow all Coles policies and procedures and all relevant laws that apply to your role and follow any changes to these policies, procedures and laws;

•  Advise your manager of any situations where you think there could be a breach of these expectations, and encourage others to do the same;

•  Protect the reputation of Coles and not make any disparaging or untruthful remarks about Coles, other team members, customers, competitors, contractors or suppliers;

•  Behave in a way that ensures your safety and the safety of others; and

•  Deal fairly and honestly with customers, suppliers and any other external parties.

[31] The expectations of employees in leadership roles set out in the Code are:

•  Lead by example and challenge others to do the same;

•  Help team members understand what is expected of them in their roles;

•  Build team members’ knowledge of the Coles values, company policies and procedures and all relevant laws that affect their role, including changes to these policies, procedures and laws;

•  Give feedback and coaching to team members to help them perform to the best of their abilities;

•  Promptly manage behaviour that is inconsistent with these requirements;

•  Listen openly to ideas and suggestions; and

•  Provide an environment where team members can raise their concerns and discuss them openly without fearing or experiencing negative consequences.

[32] The EO Policy applies to all Coles employees, contractors and consultants, and imposes a responsibility on them not to discriminate, vilify, bully, harass, sexually harass or victimise other Coles employees, customers or any external party. Relevantly, the EO Policy set out definitions for sexual harassment, victimisation and workplace bullying, as follows: 5

“Sexual Harassment is a specific and serious form of harassment. It is unwelcome sexual behaviour, which could be expected to make a person feel offended, humiliated or intimidated. Sexual harassment can be physical, spoken or written. It can include:

•  Unwelcome sexual advances or requests for sexual favours

•  Unwelcome comments, teasing or innuendo about a person’s sex life or physical appearance

•  Smutty jokes and comments

•  Suggestive behaviour such as staring or leering at a person, or parts of their body

•  Displays or sexually graphic material including posters, images on walls or computer desktops/screensavers

The intent of the team members, contractor or consultant engaging in the above behaviours is irrelevant – it is a question of whether a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Just because someone does not object to inappropriate behaviour in the workplace at the time, it does not mean they are consenting to the behaviour.

A single incident is enough to constitute sexual harassment – it doesn’t have to be repeated.

Behaviour that is based on mutual attraction, friendship and respect is not likely to be sexual harassment as long as the interaction is consensual, welcomed and/or reciprocated. Please note, sexual contact or behaviour of a sexual nature between members of our team which is likely to offend others in a work context is not acceptable.

Sexual Harassment is not tolerated at Coles. It is prohibited under state, territory and Federal legislation, and Coles can be held responsible for sexual harassment committed by its team members, contractors or consultants. Some forms of sexual harassment can also be considered a criminal offence.”

“Victimisation is subjecting or threatening to subject someone to a detriment because they have asserted their rights under equal opportunity law, made a complaint, helped someone else make a complaint, or refused to do something because it would be discrimination, sexual harassment or victimisation.

It is also victimisation to threaten someone (such as a witness) who may be involved in investigating an equal opportunity concern or complaint.

Victimisation is not tolerated at Coles. It is also prohibited under state, territory and federal laws. Coles can be held responsible for victimisation committed by its team members, contractors or consultants.”

…

“Workplace Bullying is defined as repeated, unreasonable behaviour towards a person or a group of people that creates a risk to their health and safety. The risk can be physical, psychological or both.

Workplace bullying may be intentional or unintentional.

The following types of behaviour may amount to workplace bullying if repeated or occurring as part of a pattern of behaviour.

(a) verbal abuse, including sarcasm or insults

(b) humiliation

(c) unreasonable or unjustified criticism

(d) exclusion or isolation

(e) intimidation

(f) spreading rumours or innuendo about a person

(g) deliberately and unreasonably withholding vital information

Workplace bullying is not tolerated at Coles. It is also prohibited under state, territory and Federal legislation, and Coles can be held responsible for bullying committed by its team members, contractors or consultants. Bullying behaviour can also constitute a criminal offence in some jurisdictions.

While workplace bullying involves repeated behaviour, isolated or one-off examples of the type of behaviour referred to above also represent risks to the health and safety of our team, and will not be tolerated.

Managers are required to provide our team with reasonable and constructive feedback, and to set clear and reasonable performance standards. This is not workplace bullying when it is done in a reasonable way.

For example, reasonable management action, including performance management or management action based on a genuine and reasonable business requirement is not workplace bullying.”

[33] Mr Angelakos agreed that on 7 February 2018 and following a phone call from Ms Mulenga, she sent an email to him briefly describing the investigative process to be followed, which read as follows: 6

“Dear Peter

Thank you for speaking with me today.

As we discussed, I have been appointed to investigate the complaints made against you. The investigation will involve a period of information gathering, then you will be provided details of the allegations and an opportunity to respond.

Due to the seriousness of the allegations, you will remain on a period of paid suspension while this matter is investigated. Your absence from the workplace has been communicated as ‘leave’ as this matter is strictly confidential. I will be in regular contact with you to provide updates regarding the progress of this investigation.

I understand from our conversation today that this is a challenging time for you, and I encourage you to contact the Employee Assistance Program for confidential counselling support. To speak directly to one of the team at Converge and schedule an appointment, please call [phone number].

If you have any further queries, please contact me via email or on the number below.

Kind regards,

Mo”

Interview with Ms Mulenga and written response of Mr Angelakos

[34] Mr Angelakos confirmed that he received a further phone call and email from Ms Mulenga on 19 February 2018 discussing the arrangements for his interview with her. The email received by Mr Angelakos on 19 February 2018 stated: 7

“Good morning Peter

As we discussed, an investigation interview has been scheduled for 8:30am on Wednesday 21 February at Target Country, Moranbah Fair Shopping Centre.

As you are aware, we will be discussing formal complaints against you in relation to alleged breaches of the following Coles policies (attached):

•  The Code

•  Equal Opportunity Policy

At the interview, I will provide you with specific information about the allegations against you, and offer you an opportunity to respond – either verbally during the meeting, or in writing after the meeting.

You are welcome to have a support person present with you during the interview.

Please feel free to take notes during our discussion, however Coles does not consent to any other form of recording of the interview. After the interview, I will email you a summary of our discussion to review before the investigation proceeds.

I have attached a copy of the Coles interview protocols for your reference. I ask that you, and your support person if you choose to have one, keep all matters relating to this investigation confidential in line with these protocols and your obligation under The Code.

If you have any questions, please contact me via email or on the number below

Regards

Mo”

[35] The meeting was eventually changed to occur on 23 February 2018. Mr Angelakos’ evidence at the conference was that he had been uncomfortable meeting with Ms Mulenga at the Target Country store as he knew several of the staff there. Mr Angelakos recalled that he had indicated his discomfort to Ms Mulenga prior to their interview, but had nevertheless agreed to participate in the interview on 23 February 2018. 8

[36] It was not contested that Mr Angelakos did not seek to bring a support person to the interview.

[37] During the interview Ms Mulenga put to him 39 allegations that had been made against him by eight complainants and sought his response. It is Mr Angelakos’ evidence that this was the first time that he was made aware of the allegations against him. He requested he be allowed to provide written responses rather than oral responses. On 23 February 2018 Ms Mulenga sent the following email to Mr Angelakos: 9

“Hi Peter

Thank you for meeting with me this morning. I have attached the allegations we discussed.

As you have requested to provide your responses in writing, could I please ask that you provide a response for each allegation. Also, if you have any general comments or additional information you want to provide, please feel free to include this in your response.

Additionally, if you can identify any potential witnesses, please identify who they are and why they may be a witness. As discussed, please do not make contact with any complainants or witnesses to discuss this matter.

If you could get this back to me as soon as possible, it will greatly enable me to continue the investigation. If necessary, I will contact you to arrange a time to discuss any aspects of your response that may need clarification.

Should you have any queries, please contact me via email or on the number below.

Regards

Mo”

[38] On 27 February 2018 he received a phone call and subsequent email from Ms Mulenga in which she asked him to confirm when he expected to provide his written responses to the allegations, requesting that Mr Angelakos provide his written responses as a matter of urgency. Ms Mulenga’s email stated as follows: 10

“Good morning Peter

Thank you for calling me back. Please find attached interview protocols that were discussed at our meeting on Friday.

In our discussion this morning, you advised me that you were seeking legal advice in relation to your response, and that you were expecting to receive that advice on Thursday 1 March 2018. You confirmed that you would provide your written responses on 1 March 2018.

I acknowledge your request to seek legal advice before providing a response, however I wish to advise that, due to the already extended timeframe, I will not be able to further extend your opportunity to respond beyond 1 March 2018. If I do not receive your response by 1 March 2018, I will have to progress with the investigation and make findings based on the information available.

Peter you mentioned that you have had a difficult time since we met to discuss the allegations. I strongly encourage you to contact our employee assistance program, Converge International for counselling support.

Converge is an independent provider, and any discussions with a Converge counsellor are kept confidential and not disclosed to Coles. You can contact Converge on [phone number].

Should you have any other queries, please do not hesitate to contact me.

Regards

Mo”

[39] Mr Angelakos agreed that on 1 March 2018 he received a phone call and subsequent email from Ms Mulenga who sought to confirm with Mr Angelakos that he would provide his written responses to the allegations against him that day. Mr Angelakos agreed that he told Ms Mulenga that he was not in a position to provide his written responses that day, to which Ms Mulenga requested that Mr Angelakos provide Ms Mulenga with as much of his response as he could by close of business on 1 March 2018, and his remaining responses could be provided on 2 March 2018. 11

[40] At approximately 7:08pm on 1 March 2018, he sent to Ms Mulenga by email his written responses to the first 11 allegations. At approximately 2:40pm on 2 March 2018 he sent to Ms Mulenga by email his written responses to the remaining allegations against him.

[41] At approximately 3:30pm on 2 March 2018 Ms Mulenga called him and went through his written responses with him over the phone. He expressed to her that he had not had enough time to reflect on his responses to the allegations against him. Mr Angelakos stated that he would have needed at least another few days to have been given a fair amount of time to respond to each of the allegations put to him.

[42] In answering questions from me and Mr Spargo, Mr Angelakos acknowledged that he had not begun to compile his responses to the allegations until he received legal advice on 1 March 2018. Mr Angelakos did not accept that he could have begun to record his responses to each allegation prior to receiving legal advice. 12

Investigation, findings made by Ms Mulenga and evidence

[43] Given there are numerous allegations, most of which formed part of the reasons for the dismissal, I consider it appropriate to deal with each of them, together with the evidence of the parties under each sub-heading.

[44] As a result of Mr Angelakos failing to file a witness statement, his written response to the allegations put to Ms Mulenga formed the best part of his evidence, together with his oral evidence at the conference.

[45] There was, however, one allegation that arose in the witness material that was not investigated by Coles as part of the 39 allegations. The fresh allegation, not investigated, was that at approximately 9.00pm on 22 January 2018, at store closing time, the same day that Mr Holloway departed the store as Store Manager, Mr Angelakos used the store loudspeaker to sing to the team members, “My life is great, he is gone, out of my life, out of my life”. The allegation against Mr Angelakos was included in an email from Ms Bainbridge recording her discussions with team members about Mr Angelakos’ conduct. When it was put to him in cross-examination, he denied the allegation. The matter was discussed briefly as follows: 13

Commissioner: Right, so, let me read this out to you, Mr Angelakos.

“So, Peter got on the PA at 9 pm on Monday, 22 January, the first day without our store manager and sang to the team, 'My life is great, he is gone, he is out of my life, out of my life.' One team member walked straight up to him and told him that was inappropriate in front of a second team member. According to both team members, Peter got angry and was muttering to himself and rolling his eyes in response. The team members, initials TC, described his behaviour to me as he was being a bully and it was not acceptable. Team member VC describes his behaviour as ridiculous.

Did that happen, Mr Angelakos?

Angelakos: No.

Commissioner: Do I need to call these people and have them give evidence as well?

Spargo: No, Commissioner, we had - it's a big case and you have to draw a ring around it somewhere. We haven't included them because it's not part of the reasons for dismissal. I was raising it partly because you raised it at the outset and partly because it might be relevant to - - -

Commissioner: Yes, but it goes to Mr Angelakos' credibility here……….do I need to find out who was on roster that night and see whether there's at least one person who says that you did that, Mr Angelakos? It sounds like an incredibly immature thing to do. If you did it, you need to own up to it. You deny it outright it, do you?

Angelakos: Yes, I deny.

Commissioner: You don't sound very convincing there?

Angelakos: I don't know how you want me to sound, but I deny it.

Commissioner: Is this the first time you have read that or you have read it in your examination of - - -?

Angelakos: It's the first time. It's the first time.

Commissioner: Well, we will find out who was on shift that night because this is hearsay from Ms Bainbridge. But it certainly goes to your credibility there. If there's one person who says that you did that, then that will be very interesting, Mr Angelakos?

[46] Following further inquiries, at short notice, Coles called Ms Linda Powyre to give evidence in respect of this allegation against Mr Angelakos.

[47] Ms Powyre has worked in the dairy department at the Coles Moranbah store for 10 years. She remembered that Mr Holloway left as Store Manager during January 2018 and there had been a gap before Mr Morton started as Store Manager. Ms Powyre could not recall whether 22 January 2018 had been the first day of that ‘gap’.

[48] Ms Powyre stated that on the night of the first day after Mr Holloway’s departure, Mr Angelakos said into the store’s loudspeaker system words to the effect, “Andrew’s gone, good riddance”. Ms Powyre stated that the store had been closed at the time.

[49] When asked whether Mr Angelakos had said, “My life is great, he is gone, out of my life, out of my life”, Ms Powyre said that she had not taken notice of that and could only remember Mr Angelakos saying, “Andrew’s gone, good riddance”. Ms Powyre recalled that Mr Angelakos had simply said the words and had not sung them. Ms Powyre stated that it had been ‘quite stunning’ that Mr Angelakos would use the loudspeaker to say something like that, and she had thought there had not been any need for it.

[50] Mr Angelakos put to Ms Powyre that he had made an announcement that Mr Holloway had departed as Store Manager as a general announcement to team members in the store, who may have been unaware that Mr Holloway had left. Ms Powyre was adamant that Mr Angelakos had used the words, “Andrew’s gone, good riddance”. 14

Balance of probabilities

[51] Early on in the conference it became clear to me that Mr Angelakos did not understand how Coles had made conclusions on various matters on the balance of probabilities. I asked him if he understood what it meant, and he stated that he did not, even after having looked it up. 15 I did my best to explain to Mr Angelakos how a decision maker comes to a conclusion after hearing from all of the relevant parties, and how a decision maker makes such a decision on the balance of probabilities.

[52] On the first allegation, which will be detailed below, I explained that Ms Mulenga found that the complaint was substantiated on the balance of probabilities. Mr Angelakos responded, “That’s what I can’t understand because I may have been upset but I didn’t raise my voice or use an aggressive tone or aggressively gesture my arms.”

[53] It appeared to me that Mr Angelakos did not understand how a decision maker could make a finding against him when he denied the allegation. The following exchange later occurred: 16

Allegations made by Josephine Bainbridge, including allegations 1 and 2

[54] Ms Josephine Bainbridge was the Store Support Manager of Coles Moranbah between November 2015 and August 2018, and made allegations number one and two against Mr Angelakos, together with further information relevant to allegations made by others. The below information includes her witness statement and her evidence during the conference.

[55] Ms Bainbridge stated that her role as Store Support Manager required her to ensure Coles Moranbah followed all occupational health and safety, workplace relations and financial disclosure requirements. Ms Bainbridge stated that she had on occasion discussed minor performance or conduct issues with staff members at Coles Moranbah, though more serious disciplinary matters were usually handled by the Store Manager. Ms Bainbridge stated that in addition to those responsibilities, her daily duties at Coles Moranbah involved her performing a variety of tasks including, but not limited to, serving customers at the registers.

[56] Ms Bainbridge often worked similar hours to Mr Angelakos and had a reasonable working relationship with him, though she often found he was a little difficult to manage.

[57] Ms Bainbridge stated that soon after Mr Angelakos commenced his position as Duty Manager she became concerned about a number of issues in relation to his performance and conduct in the workplace. Ms Bainbridge stated that her concerns were shared at the time by Mr Holloway and Mr Alastair Hardy. The examples of Mr Angelakos’ poor performance and conduct included:

•  alleged incidents of him standing inappropriately close to female staff members, following female staff members and customers of Coles Moranbah around the store;

•  demonstrating combative and belittling behaviour towards other staff members of Coles Moranbah who were under his supervision; and

•  generally not adequately fulfilling his key responsibilities.

[58] She stated that during Mr Angelakos’ first 12 months at Coles Moranbah she attempted to work informally with him to resolve his conduct and performance issues, offering him training and guidance and speaking to him in one-on-one conversations. She had been asked by Mr Holloway to help Mr Angelakos in this respect, and understood that Mr Holloway had also had a number of informal, one-on-one conversations with Mr Angelakos about his performance and conduct. It was her view that Mr Angelakos’ behaviour towards other team members did not improve despite assistance.

[59] In cross-examination, Ms Bainbridge stated that she and Mr Holloway had received verbal complaints or had issues raised to them verbally about Mr Angelakos throughout his employment at Coles Moranbah. 17 Ms Bainbridge stated that the majority of those verbal issues were not serious enough to escalate to the HR Advisory Department. Instead, those verbal complaints prompted Ms Bainbridge to discuss Mr Angelakos’ performance with him.

[60] Ms Bainbridge stated that on a date she could not recall in or around August 2017 she had a conversation with Mr Angelakos about respecting employees’ personal space. She said to him words to the effect, “I don’t like people touching me or standing too close to me. You really have to read people’s non-verbals. We’re in a management position. You have to understand what’s appropriate and what’s not appropriate”. She said that his response was, “I already know I’m only allowed to touch them on the forearm”. She said that the response made her feel disturbed and set off alarm bells for her.

Allegation 1 - discussion regarding time off in lieu

[61] Ms Bainbridge stated that at around 10:00am on 26 December 2017 she was sitting in the Store Manager’s office when Mr Angelakos walked in, rested against the back of her chair, leaned in to her and said, “What day do I have off? When is my time in lieu?” Ms Bainbridge asked what was wrong, and he picked up the management roster, put it down heavily on the table next to Ms Bainbridge and said in an angry and threatening tone, “This is wrong, where is my time in lieu?” and “I want my day off, where is it? I want it this week”. Ms Bainbridge stated that Mr Angelakos was throwing his arms around while talking and walking in small circles.
[62] Ms Bainbridge told Mr Angelakos it was operationally impossible for him to have a day off that week and told him he would need to speak to Mr Holloway. Mr Angelakos responded, “I am going to ring HR about this, I will ring HR on you, I’m going to HR” and “I HAVE THE RIGHT to an extra day off. THIS week (Ms Bainbridge’s emphasis)”. Ms Bainbridge stated that she stood up and asked Mr Angelakos to sit down and discuss the issue, but Mr Angelakos threw his arms around while pacing and said in a loud and aggressive tone, “You can’t be serious, you can’t be serious” before leaving the office.

[63] Ms Bainbridge immediately contacted Mr Holloway and spoke to him about the incident, and Mr Holloway informed her that he would speak to Mr Angelakos. Ms Bainbridge then called Ms Bidewell, who gave her instructions about offering Mr Angelakos a day of time in lieu subject to the business’ needs.

[64] The above allegation was put by Ms Mulenga to Mr Angelakos. In his written response, he stated that he met with Ms Bainbridge and noticed the management roster on the table. Mr Angelakos stated that he politely enquired with Ms Bainbridge that, noting that he had been scheduled to work two public holidays on days that he would not ordinarily be required to work, was he entitled to time in lieu?

[65] Mr Angelakos stated that Ms Bainbridge said to him words to the effect that he was not entitled to time in lieu because he was not covered by the EBA and was on salary, and that it was up to Andrew if he wanted to give him time off. Mr Angelakos stated that Ms Bainbridge’s response had not ‘resonated’ with him and he had been frustrated and said to Ms Bainbridge that he would need to speak to HR about the issue.

[66] Mr Angelakos denied that he put the management roster heavily on the table, instead stating that that he had ‘dropped’ the management roster on the table. Mr Angelakos denied that he walked in circles, muttered, raised his voice, used an aggressive tone, had thrown his arms up or stormed out of the office while Ms Bainbridge was speaking. Mr Angelakos did recall that he said words to the effect, “I don’t believe this” in a surprised tone.

[67] Ms Mulenga determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Code, that being ‘What we expect from our team members/leaders’.

[68] In questioning from me, Mr Angelakos recalled that he may have been upset during the discussion with Ms Bainbridge but he had not raised his voice or used an aggressive tone or aggressively gestured his arms during the discussion on 26 December 2017. 18

Allegation 2 - discussion regarding marinara mix

[69] Ms Bainbridge stated that during a night shift in August 2017, a team member in the deli called her over and asked her if they had been preparing the marinara mix correctly. The team member explained to her that Mr Angelakos had told them they were preparing it incorrectly. Ms Bainbridge told the team member they were following the correct process and that she would talk to Mr Angelakos later.

[70] Ms Bainbridge stated that later in her shift at approximately 7:00pm, Mr Angelakos approached her and said to her in an aggressive manner, “What’s with the marinara?” She responded, “Sorry what do you mean?” Ms Bainbridge stated that Mr Angelakos started muttering to himself and walking around in circles. Ms Bainbridge attempted to explain to Mr Angelakos that the team members in the deli were following the correct procedure to prepare the marinara mix. Ms Bainbridge stated that Mr Angelakos responded by throwing his hands in the air and saying in a loud voice while standing very close to her, “You can’t be serious, are you saying it's ok for them to talk to me like that?”, “They can’t talk to me like that” and “It’s not up to them, they have to do what I say”.

[71] Ms Bainbridge attempted to calm Mr Angelakos down and suggested they both go and look at the marinara mix preparation information on Coles’ internal website together. Mr Angelakos ignored her suggestion and said to her in a loud and aggressive voice, “Am I wearing a white shirt for no reason? Is this not a white shirt?” before throwing his arms in the air and storming off. Ms Bainbridge understood Mr Angelakos’ reference to wearing a ‘white shirt’ to refer to himself as a Manager, as only the managerial staff at Coles Moranbah wear white shirts.

[72] In cross-examination, Ms Bainbridge stated that she had raised the marinara incident with Mr Holloway. Mr Holloway advised her, and Ms Bainbridge agreed that the best course of action was to continue to performance manage Mr Angelakos and improve his leadership skills. 19

[73] Mr Angelakos agreed in cross-examination that managers wear white shirts, and he wore a white shirt when working at Coles. He stated that some new employees and those doing work experience might also wear a white shirt.

[74] The allegation put to Mr Angelakos by Ms Mulenga was that when making the statements to Ms Bainbridge, he repeatedly stepped towards and then away from her, rolled his eyes, muttered and gestured his arms aggressively, before throwing his arms into the air and storming off.

[75] In his written response Mr Angelakos denied acting or speaking in an aggressive or confrontational manner. He stated that he had been concerned about the process that had been followed in preparing the marinara mix whereby fresh salmon had been added to frozen marinara mix, a process which was not followed at other Coles stores. He denied that he had made any of the statements as alleged by Ms Bainbridge.

[76] Mr Angelakos recalled that he had been walking alongside Ms Bainbridge while she worked, rather than stepping toward and then away from her. Mr Angelakos denied that he had rolled his eyes, muttered, gestured aggressively or stormed off. Mr Angelakos stated that he had felt misunderstood by Ms Bainbridge, and that Ms Bainbridge was adamant that she was correct and was not willing to discuss the matter further.

[77] Ms Mulenga determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Code, that being ‘What we expect from our team members/leaders’.

Other evidence from Ms Bainbridge

[78] Ms Bainbridge stated that she went on a period of leave during November 2017. While on leave, she received a call from Mr Hardy who informed her that several female team members working nightfill shifts were having problems with Mr Angelakos. Ms Bainbridge stated that she called one of the female nightfill team members, (whom she did not name in her statement) and asked if everything was OK at work. The team member said to her, “So you heard about Peter then?”, and proceeded to tell Ms Bainbridge that Mr Angelakos had been bothering a few of the female nightfill team members while they worked alone. Ms Bainbridge encouraged the team member to raise her concerns with Mr Hardy. Ms Bainbridge called Mr Hardy and informed him of the matters that had been brought to her attention.

[79] After returning from leave she worked several night shifts and made herself available to team members in an attempt to find out more about Mr Angelakos’ conduct, however she formed the impression that no-one wanted to discuss the matter for fear of repercussions.

[80] In cross-examination, Ms Bainbridge stated that she thought that Mr Hardy could have done more to manage the matters that had been brought to his attention, and could have stepped forward and discussed the team members’ concerns with them. 20

[81] In cross-examination, Ms Bainbridge clarified that both she and Mr Holloway had been on the call to Ms Bidewell and gave further information about Mr Holloway’s actions in respect of Mr Angelakos until that time, as follows: 21

Bainbridge: One of the main things that Andrew and I discussed in terms of me giving him very direct feedback, with the door shut so no one else could hear, would have been about Peter in November and December when I was very direct with Andrew that I thought he needed to contact HR and he wanted to continue to performance-manager Peter at work, and I was very insistent that he had to ring HR or I would and right in front of me, he rang Alina our HR - regional HR - and I heard the conversation because I wasn't leaving the room until I knew 100 per cent that she had been contacted and what her advice was for us because until that point, I was just listening to Andrew say, "I spoke to Alina and she said such and such", but I didn't have any evidence of that from Alina myself. So, that was probably the biggest interaction I had with Andrew that was really very direct feedback.

Commissioner: What's your recollection of that conversation?

Bainbridge: With Alina?

Commissioner: Yes

Bainbridge: Okay, so, Andrew rang her straight away.  She wasn't on speaker phone, but I could hear quite easily because the store phone is not quiet.  So - because he was on the store mobile phone and I was sitting right next to him.  So, he basically said - explained all the issues we were having with the night fill team and he said, "Jo has reported to me that night fillers are telling her all these things, but none of them are brave enough to put it in writing."  And - and he said to Alina, "What do we do?  We need some help."  And his words were, "We need some help, Alina.  We need some help."  And I sat there thinking, "Yes, we do, yes, we do."  And - and then she said - she basically said, "We need something in writing.  If no one is willing to put it in writing, we can't do anything."  And Andrew said again, "But, Alina, we need some help", and she said, "Performance-manage him."  And that was the only assistance we got from HR through that whole process for two months.  So, I spoke to Alina myself, I spoke to Shannon after Christmas, but - - -

[82] Ms Bainbridge stated that on a date she could not recall after returning from leave she saw KL shopping at the deli in the Coles Moranbah store, with Mr Angelakos standing extremely close to KL. Ms Bainbridge observed KL’s body language to be standoffish and nervous, and it was obvious to Ms Bainbridge that KL felt uncomfortable. Ms Bainbridge decided to interrupt KL’s and Mr Angelakos’ conversation, and as she reached them she saw that Mr Angelakos was holding his hand just below KL’s jaw, almost cupping KL’s jaw. He said, “Have you seen [KL’s] got a [attribute]?”

[83] Ms Bainbridge stated that she feigned interest until Mr Angelakos walked away, and then asked KL how she was doing. KL replied that she was ‘good’, but she thought that KL’s demeanour showed otherwise.

[84] Ms Bainbridge stated that she had been made aware that during December 2017 Mr Angelakos had threatened her daughter, Ms Kanowski, after Ms Kanowski complained about Mr Angelakos to her supervisor. Ms Kanowski informed her after the incident that Mr Angelakos had approached her while she was in the cleaning room, stood uncomfortably close to her and said, “Be careful next time you think to complain about me”, and insinuated to her that he could have her fired.

[85] Ms Bainbridge stated that on 28 January 2018 she was approached by CD who complained to her about Mr Angelakos and said to her, “He’s harassing me. I don’t want to be near him”. Ms Bainbridge stated that she asked CD to put her complaint in writing and assured CD that the complaint would be taken seriously. 22

[86] On the day Mr Morton commenced at Coles Moranbah on 29 January 2018, she told him that some team members had reported concerns to her about Mr Angelakos’ behaviour. Her conversation with Mr Morton was interrupted when Mr Angelakos entered the room, and they did not finish their conversation until later that day.

[87] Later that day, CD attended Coles Moranbah while off-shift and presented a handwritten complaint to Ms Bainbridge. Ms Bainbridge and Mr Morton then sat down to read CD’s complaint. Ms Bainbridge was shocked at the content of the complaint and decided to record her conversations with other staff regarding Mr Angelakos over the previous three months, which she emailed to Mr Shannon Inder, Regional Manager.

[88] Ms Bainbridge stated that over the following days she assisted to contact relevant team members and take written complaints from them regarding their contact with Mr Angelakos. She forwarded those written complaints to Coles’ HR Advisory Department. Ms Bainbridge stated that she had no further involvement in the matter after forwarding the written complaints.

[89] In cross-examination Mr Angelakos put to Ms Bainbridge that she had solicited complaints against him from team members including Ms Kanowski, Mr Miels and Mr Hassal, on the basis that Ms Bainbridge had stated that she had encouraged team members to put their complaints in writing. Ms Bainbridge denied that she had solicited complaints against Mr Angelakos, and stated that she had informed team members that had made verbal complaints to her that they should record their complaints in writing. 23

[90] Ms Bainbridge stated her belief that if Mr Angelakos were reinstated, he would become even more difficult to manage, particularly if he continued to perform inadequately or behave inappropriately. Ms Bainbridge stated that she would be fearful of team members’ health and safety being at risk and believed that some team members would resign.

Allegations made by witness AB, including allegations 3, 4, 5 and 6

[91] AB gave a witness statement in these proceedings and was cross-examined. At the time she was a 17 year old school student who worked as a Team Member at the Coles Moranbah store. She no longer works there.

[92] AB stated that she met Mr Angelakos in his capacity as Duty Manager at Coles Moranbah and worked a significant number of shifts with him over the course of her employment with Coles. Soon after commencing, Mr Angelakos began acting in an inappropriate manner towards her, standing in very close proximity to her of about 10 – 15 centimetres, touching her on the arm and shoulder, making inappropriate comments about her physical appearance and generally making her feel uncomfortable. She said that the behaviour made her feel anxious and frightened about being around Mr Angelakos.

[93] Her evidence to the Commission is that on 27 January 2018 she was working at one of the registers at Coles Moranbah when Mr Angelakos called out to greet her from another of the registers. She ignored Mr Angelakos as she was serving customers. Mr Angelakos greeted her a number of times during the shift on 27 January, until he eventually approached her while she was speaking to a customer, placed his hand on the small of her back and said words to the effect, “Good evening”.

[94] AB stated that she was taken aback by Mr Angelakos’ actions and felt extremely uncomfortable. She nervously responded, “Hello” before continuing to serve the customer. AB stated that when Mr Angelakos removed his hand and left the register area the customer AB was serving gave AB a concerned look.

[95] AB stated that on 28 January 2018 Mr Angelakos again approached her from behind and touched the small of her back while speaking with her. She was extremely uncomfortable with this behaviour.

[96] On the evening of 28 January 2018 she disclosed Mr Angelakos’ conduct of 27 and 28 January 2018 to her parents, who advised her to inform management at Coles Moranbah. She reported her concerns to Ms Maher, who instructed AB to report her concerns to Ms Bainbridge, which AB did. Ms Bainbridge asked AB to make a written record of the events of 27 and 28 January 2018, which she did on 31 January 2018. A copy of AB’s note was annexed to her witness statement. 24

[97] At the conference AB demonstrated how close Mr Angelakos had stood to her and how close his face had been to hers. She demonstrated how Mr Angelakos had held his hands above her shoulders, and where Mr Angelakos had touched her on the small of her back. She also demonstrated the tone of voice that Mr Angelakos had used when saying, “Good evening” to her. AB’s evidence was that Mr Angelakos had used a low and quiet tone of voice, but confirmed that she did not consider the comment had been made with a sexual undertone.

[98] In answering questions from Mr Angelakos, AB stated that she was aware of Coles’ Code of Conduct, and she was aware that if she felt uncomfortable at work, she should be able to raise the issue immediately. AB stated that she had chosen not to raise her discomfort to Mr Angelakos personally on advice from family and friends. She chose not to immediately raise the issues with Mr Angelakos to a supervisor or manager as she had initially felt uncomfortable doing that.

[99] Mr Angelakos put to AB that in her written note of 31 January 2018, she had described that Mr Angelakos had touched her on the arm or shoulder, but at the Conference AB had demonstrated that Mr Angelakos had only ‘hovered’ his hand above her shoulder and arm. AB stated that while Mr Angelakos had ‘hovered’ his hand on previous occasions, he escalated to touching her on the shoulder or arm after Mr Holloway left as Manager of Coles Moranbah.

[100] Mr Angelakos put to AB, and she agreed that it was possible for team members to get in each other’s way if there were two or three people behind the service kiosk, given the limited amount of space within the kiosk. AB stated in re-examination that she did not believe that Mr Angelakos had accidentally put his hand on the small of her back on 27 January 2018.

Allegation 3 – standing too close to AB

[101] The allegation made by Ms Mulenga to Mr Angelakos reads:

[102] Mr Angelakos’ written response is as follows:

[103] Ms Mulenga’s notes record that in a telephone discussion with Mr Angelakos on 2 March 2018, he confirmed that his written response is in relation to multiple alleged incidents.

[104] Ms Mulenga’s Investigation Outcome Summary details that she considered evidence in coming to her conclusion. The following assisted her in her consideration of the allegation:

[105] Ms Mulenga determined that the allegation was substantiated on the basis of evidence to support. She found that there had been a breach of the Equal Opportunity Policy – Sexual Harassment.

Allegation 4 – touched AB shoulder or arm

[106] The following allegation was put:

[107] Mr Angelakos’ written response was:

[108] In the telephone conversation of 2 March 2018 Mr Angelakos stated that he did not ever touch her on the shoulder or arm.

[109] Ms Mulenga considered the following in making her finding:

[110] Ms Mulenga determined that the allegation was substantiated on the basis of evidence to support. She found that there had been a breach of the Equal Opportunity Policy – Sexual Harassment.

[111] In cross-examination, Mr Angelakos denied hovering his arm over AB’s shoulder, or ever touching her. 25

Allegation 5 – touched AB in the small of her back

[112] The following allegation was put:

[113] Mr Angelakos’ written response was:

[114] In the telephone conversation of 2 March 2018 Mr Angelakos stated that he did not touch AB at all, and he refuted the allegations in their entirety.

[115] Ms Mulenga considered the following in making her finding:

[116] Ms Mulenga determined on the balance of probabilities that she preferred AB’s evidence over Mr Angelakos’, and determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Equal Opportunity Policy – Sexual Harassment.

[117] Mr Angelakos gave further evidence in cross-examination regarding this allegation. Mr Angelakos agreed that the space inside the kiosk was restricted, and there was a narrow gap between the service register within the kiosk and the cupboard where cigarettes were stored inside the kiosk. 26

[118] Mr Spargo reiterated allegation 5 to Mr Angelakos and put it to him that the conduct alleged by AB had occurred. Mr Angelakos could not recall the events of 27 January 2018 in great detail. He did not recall a specific occasion when he had been required to retrieve cigarettes from the back of the store while AB was serving customers in the kiosk.

[119] Mr Angelakos stated that he may have repeatedly greeted AB because he thought that AB may not have heard him the first time. Mr Angelakos vehemently denied that he had engaged in any of the other conduct alleged by AB in respect of allegation 5.

Allegation 6 – again touched AB on the small of her back

[120] The following allegation was put:

[121] Mr Angelakos’ written response was:

[122] In the telephone conversation of 2 March 2018 Mr Angelakos denied touching AB on the lower back.

[123] Ms Mulenga considered the following in making her finding:

[124] Ms Mulenga determined on the balance of probabilities that the allegation was substantiated. She found that there had been a breach of the Equal Opportunity Policy – Sexual Harassment.

[125] In answering questions from Mr Spargo in cross-examination, Mr Angelakos reiterated that, while he denied the truth of AB’s allegations, he was surprised that if AB had felt frightened or uncomfortable from Mr Angelakos’ conduct, that AB had not raised the issue with Mr Angelakos primarily, or with somebody else if AB felt uncomfortable discussing the matter with Mr Angelakos. 27

Allegations made by witness EF – including allegations 7, 8, 9 and 10

[126] Witness EF gave a witness statement in respect of this matter and was cross-examined. She is currently working as a permanent part-time team member in the Service department at Coles Moranbah, whilst still at school. She is aged 17.

[127] EF first met Mr Angelakos when he commenced work at Coles Moranbah in May 2017. She often worked similar shifts to Mr Angelakos, and they had a generally friendly working relationship in the first few months of his employment at Coles Moranbah.

[128] EF stated that whenever Mr Angelakos spoke to her he would usually stand in very close physical proximity, within roughly 10 - 15 centimetres of her face. When Mr Angelakos stood that close, she usually took a step back to which Mr Angelakos would usually take another step closer to her. EF could not recall how often this occurred but noted that she distinctly remembers it taking place on one occasion while working in the assisted checkout area.

[129] EF stated that she had often witnessed Mr Angelakos standing in close proximity to other young female staff members. EF distinctly remembered seeing Mr Angelakos standing very close to CD on several occasions, and CD always appeared uncomfortable whenever Mr Angelakos stood in close to CD. EF stated that she witnessed Mr Angelakos speaking to CD a lot.

[130] EF began to limit her interactions with Mr Angelakos in the workplace by trying to avoid making eye contact with him so that he would not approach her. EF stated that if she avoided interacting with him, she could prevent Mr Angelakos being in her personal space.

[131] EF stated that on a date she could not recall during late 2017, Mr Angelakos approached her at work while she was stocking the drinks fridges and said to her words to the effect, “You have a very beautiful face”. EF stated that she was unsure of what to do or say and so simply thanked him and continued with her work. It should be noted that this allegation did not form one of the 39 allegations put to Mr Angelakos by Coles or a reason for this dismissal.

[132] EF stated that at around 8:00pm on a date she could not recall during October 2017, she made a priority call to alert other staff members that she needed assistance at the registers. She understood that it is standard procedure for Coles employees to make a priority call when staff at the registers are becoming overwhelmed by customers.

[133] Her evidence is that it was not uncommon for a priority call to be made at Coles Moranbah at around 8:00pm as only two staff members are usually rostered on to serve at the registers at that time. After making the priority call, EF noticed Mr Angelakos nearby, who appeared not to be doing anything. She made a second priority call, to which Mr Angelakos responded.

[134] EF stated that once she finished serving the waiting customers, she went to perform another task before making her way back to the registers, at which point EF heard Mr Angelakos yell out her name in an aggressive voice. EF stopped just near to him, at which point he approached her and stood uncomfortably close to her face and said in a loud and aggressive voice, “Don’t call priority second call while I’m here at night”.

[135] EF stated that she tried to explain to Mr Angelakos that she had been told to make a second priority call if the first priority call went unanswered and there are customers still waiting, to which Mr Angelakos responded, “Not while I’m here”. She responded, “Yep ok” and then walked away and continued working. EF stated that AB witnessed this interaction.

[136] EF stated that approximately 10 to 15 minutes later, Mr Angelakos again approached her at the registers and said to her in a softer voice, “With the second call, don’t do it when I’m here, just in case Linda is in the store, I don’t want her to hear that second call”. EF understood Mr Angelakos to mean Ms Linda Daniels, the Customer Service Manager at Coles Moranbah at the time.

[137] At about 6:00pm while working on a day on the weekend after the priority call incident, EF was directed by Ms Daniels to clean one of the registers. She started to clean the register after she had finished serving the customers at her register. Mr Angelakos was also at the registers serving customers at that time, after he had responded to a priority call. While Mr Angelakos was serving his last customer, Mr Angelakos turned to EF and loudly called out her name. She looked over to Mr Angelakos, who gestured towards her with his index finger and beckoned EF to come over to him. She went over to Mr Angelakos and he said to her to “Get back to what you’re doing”, and dismissed EF with a sweeping hand gesture, after which she continued to clean her register.

[138] Her evidence is that after Mr Angelakos finished serving his customers he approached her and said authoritatively, “When I’m serving you take over from me”. EF stated that Mr Angelakos pointed aggressively at her with his index finger, with his face approximately 20 centimetres from her face. EF stated that she apologised to Mr Angelakos and tried to explain to him that she had been directed to clean by Ms Daniels, to which Mr Angelakos responded, “I don’t care, you take over from me”.

[139] EF stated that at around 2:30pm on a date she could not recall, approximately one week after Mr Angelakos had instructed her to take over from him on registers, she had noticed Mr Angelakos at one of the store’s registers as she had told her supervisor that she was taking her break. EF acknowledged Mr Angelakos with a quick smile. After turning to walk away from the registers, Mr Angelakos stepped out from behind his register, approached her, stood very close to and leaned over EF and said in a deep, scolding voice, “You say hello to me when you see me, you are very rude”. Before EF had an opportunity to respond, Mr Angelakos again said, “It’s very rude”. EF was not sure what to say or do in response so simply said “Hello” and walked away.

[140] On a date after 29 January 2018, EF was approached by Ms Bainbridge, who asked her to record any issues she had with Mr Angelakos in writing. EF understood that Ms Bainbridge had been aware that she had experienced issues with Mr Angelakos.

[141] After finishing work on 31 January 2018, EF prepared a note summarising her various interactions with Mr Angelakos that she thought were inappropriate or made her feel uncomfortable. She submitted her note to Ms Bainbridge by email.

[142] EF’s evidence is that she would not feel comfortable working or interacting with Mr Angelakos again, and would not trust Mr Angelakos to treat her in a respectful or friendly way. She stated that if Mr Angelakos were reinstated to his former position with Coles Moranbah, she would ask to not be rostered on with him, or request to be transferred to a department to him, and would consider resigning.

Allegation 7 – priority to service call

[143] The allegation that Mr Angelakos had inappropriately chastised EF regarding the priority to service call was put to him. It was put to Mr Angelakos that about fifteen minutes later, he again approached EF and said in a softer tone, “With the second call, don’t do it when I’m here, just in case Linda is in the store, I don’t want her to hear that second call”. EF replied, “That is just what I’ve been told to say by Linda and other supervisors when you make a priority call and no one comes”.

[144] In his written response, Mr Angelakos stated that he did not recall the incident, and called for video evidence. In a telephone conversation on 2 March 2018 he refuted the allegations and said that nothing like this ever occurred.

[145] Ms Mulenga considered the following in making her finding:

[146] Ms Mulenga determined that the allegation was substantiated on the basis of evidence to support. She found that there had been a breach of the Equal Opportunity Policy – Workplace Bullying.

[147] In cross-examination, Mr Angelakos clarified his opinion that ‘juniors’ should not make priority calls, as they would often call for them ‘in a panicked way’ and ‘if you were a customer you would think there’s a panic going on and they’re flustered’. However, Mr Angelakos reiterated that he could not recall the incident as alleged by EF.

Allegation 8 – “take over from me”

[148] The allegation that he had inappropriately chastised EF for failing to take over from him at the registers was put to Mr Angelakos. It was put to him that the Supervisor had been ‘Jenny’, and she was counting money at the opposite register when she overheard this Following what Mr Angelakos said to EF, Jenny said to Mr Angelakos, “Peter, I asked her to clean, not take over you”. Mr Angelakos then walked over to Jenny to speak with her.

[149] In his written response, Mr Angelakos stated that he could not recall the incident alleged by EF and called for video footage. In a telephone conversation on 2 March 2018 he stated that he did not believe it happened, and said, “Could you please show me otherwise.”

[150] Ms Mulenga considered the following in making her finding:

[151] Ms Mulenga determined that the allegation was substantiated on the basis of evidence to support. She found that there had been a breach of the Equal Opportunity Policy – Workplace Bullying.

[152] In cross-examination, Mr Angelakos stated that he could not recall the incident as alleged by EF. However, Mr Angelakos then attempted to explain his understanding of the appropriate protocol in the circumstance that EF’s allegations did in fact occur. It was not clear from Mr Angelakos’ subsequent explanation whether he did in fact recall the incident with EF. Mr Angelakos’ approach to answering Mr Spargo’s question in this instance is indicative of the manner in which he described his recollection or otherwise of several of the allegations made against him. It is helpful to refer to the transcript of the discussion between Mr Spargo and Mr Angelakos in this respect: 28

Spargo: All right. Mr Angelakos, the following weekends, so around the same time last year, do you remember an incident where EF was cleaning the registers and you were serving, and you came over to [EF] and you said in a loud voice words to the effect of: When I'm serving you take over from me?

Angelakos: Say it again, please?

Spargo: - - - while [EF] cleaning the register or not?

Angelakos: No.

Spargo: You did? I didn't do it, no.

Angelakos: No, I didn't.

Spargo: You're now saying - - -?

Angelakos: Were you there?

Commissioner: Well, you haven't just now.

Commissioner: No, you ask the question again, Mr Spargo.

Spargo: You don't? So you never had a discussion with EF about - - -?

Angelakos: No, I don't recall that.

Allegation 9 – targeting or picking on EF

[153] It was put to Mr Angelakos that during the same weekend as allegation 8, EF had been re-stocking a drinks fridge as directed by her supervisor, ‘Liz’. EF saw Mr Angelakos approach Liz and speak to her. Liz then approached EF and directed her to return to her register, although there were no customers to serve. Mr Angelakos then directed another employee to continue stocking the fridge. EF stated that she recalled other occasions on weekends when Mr Angelakos instructed service supervisors to direct EF to remain at her register even when there were no customers to serve. EF stated that she felt targeted by Mr Angelakos as it did not appear to happen to other service team members.

[154] In his written response, Mr Angelakos stated that on previous occasions he had noticed EF ‘amble around the store putting loose stock away’. Mr Angelakos stated that he had instructed EF that she could provide returnable stock in the fresh produce department to a fresh produce team member if one was available; a direction which Mr Angelakos noticed EF ignore when a fresh produce team member had been available. Mr Angelakos also stated that he felt EF was not as productive as other team members when filling drinks. On the day in question, he asked Liz to leave EF on registers for reasons of efficiency. Mr Angelakos considered that she could be more efficient at the register by proactively asking customers to come to her register.

[155] Mr Angelakos stated that his direction had not been about keeping EF at the register; it had been about her being more efficient at the register.

[156] Ms Mulenga considered the following in making her finding:

[157] Ms Mulenga determined that the allegation was substantiated on the basis of evidence to support. She found that there had been a breach of the Equal Opportunity Policy – Workplace Bullying.

Allegation 10 – “Say hello…..you are very rude”

[158] The allegation that he had said to EF, “You say hello to me when you see me, you are very rude”, and the following remarks was put to Mr Angelakos. In his written response, Mr Angelakos stated:

[159] In a telephone conversation on 2 March 2018 he said words to Ms Mulenga to the effect:

[160] Ms Mulenga considered the following in making her finding:

[161] Ms Mulenga determined on the balance of probabilities that the allegation was substantiated. She found that there had been a breach of the Equal Opportunity Policy – Workplace Bullying.

[162] In cross-examination, Mr Angelakos denied that the conduct as alleged by EF had occurred. Again however, Mr Angelakos was not entirely clear in his response to Mr Spargo, as indicated in the below extract: 29

Spargo: Do you agree that you told [EF] off for not saying hello to you?

Angelakos: No.

Spargo: What did you say to [EF] about this, Mr Angelakos?

Angelakos: I don't remember.

Spargo: Is it possible - - -?

Angelakos: No need for that.

Allegations made by Jacob Miels – including allegations 11, 12, 13, 14, 15 and 16

[163] Mr Miels did not prepare a witness statement in these proceedings. He did not attend and give evidence. His allegations were made to Coles in early 2018. Mr Miels is the boyfriend of Ms Kanowski, the daughter of Ms Bainbridge.

Allegation 11 – report back every hour

[164] It was alleged that there had been repeated incidents where Mr Angelakos had directed Mr Miels to complete tasks outside of the scope of Mr Miels’ duties of employment. It was put that if Mr Miels refused to undertake those tasks, Mr Angelakos responded in an aggressive and threatening manner.

[165] An instance of that alleged conduct was said to have occurred at about 3:00pm on 20 October 2017. Mr Angelakos approached Mr Miels in the store’s ‘stock room’ and said to him in an intimidating tone that Mr Miels, ‘had to come into the store and find Mr Angelakos on the hour every hour to get a set amount of tasks completed, and that after completing the tasks Mr Miels was to report back to Mr Angelakos before going outside’. It was alleged that Mr Miels attempted to explain to Mr Angelakos that his request was not ‘viable’, to which Mr Angelakos angrily responded, “It’s viable because I say it’s viable. You will do it because I say you will do it”. Mr Miels again attempted to explain why Mr Angelakos’ request was unreasonable, and Mr Angelakos cut him off and said, “You are going to do it because I say you are going to do it”, before walking away.

[166] It was further alleged that Mr Angelakos returned a short time later while Mr Miels and another employee were in the stock room. Mr Angelakos said to Mr Miels in a belittling tone, “I’m just trying to help you man, I’m just trying to help you”.

[167] At approximately 4:00pm on that day, Mr Miels approached Mr Angelakos as per his directions and asked Mr Angelakos what he wanted him to do. It was alleged that Mr Angelakos looked at Mr Miels and laughed, mumbled to himself and then walked away, which humiliated Mr Miels.

[168] A further instance of the alleged conduct was alleged to have occurred on an undescribed date and time in the ‘deli prep room’ at the store. It was alleged that Mr Angelakos approached Mr Miels while he was alone in the deli prep room and said to him words to the effect, “If you don’t do what I ask I’m going to report you to Kirby about it.” It was alleged that in referring to ‘Kirby’, Mr Angelakos referred to the Area Service Manager for the applicable area of Coles’ organisation. Mr Miels responded, “Go ahead”, which aggravated Mr Angelakos.

[169] It was alleged that after another employee entered the deli prep room, Mr Angelakos became friendlier to Mr Miels, and said to him, “I’m just trying to help you not get in trouble with Kirby, you know”.

[170] Mr Angelakos’ written response was as follows:

[171] In a telephone conversation on 2 March 2018 he said words to Ms Mulenga to the effect:

[172] As I understand it, ‘rumbles’ refers to bringing stock forward on shelves.

[173] Ms Mulenga determined that this allegation was unsubstantiated as witness evidence does not support the allegations. She found that no breach occurred.
Allegation 12 – “why aren’t you doing your work?”

[174] It was alleged that on a date during November 2017, Mr Angelakos spoke to Mr Miels alone in the store’s ‘team room’ and while he was having a drink. Mr Angelakos aggressively said to Mr Miels, “Why aren’t you doing your work?’, to which Mr Miels responded that he was getting a drink before going back outside. It was alleged that Mr Angelakos repeated his earlier question, and Mr Miels again repeated that he was having a drink. Mr Angelakos became aggravated and said in an angry tone, “Just come in and I will give you some tasks to do”.

[175] In his written response Mr Angelakos stated:

[176] In a telephone call with Ms Mulenga on 2 March 2018 he stated that he did not believe it happened, and it’s ‘his’ word, as in Mr Miels’ word. He repeated that he did not recall it happening.

[177] Ms Mulenga considered the following in making her finding:

[178] Ms Mulenga determined the allegation was unable to be substantiated as there was insufficient evidence. She found that no breach occurred.

Allegation 13 – the service team is ‘lazy’

[179] It was alleged that during the incident set out in allegation 12, Mr Angelakos said to Mr Miels that the Coles Moranbah service team was ‘lazy’, didn’t do their jobs’ and was ‘the worst services team’ that Mr Angelakos had ever worked with.

[180] In his written response Mr Angelakos stated:

[181] In a telephone call with Ms Mulenga on 2 March 2018 he clarified that when he referred to management he meant Andrew Holloway and Jo Bainbridge.
[182] Ms Mulenga considered the following in making her finding:

[183] Ms Mulenga determined the allegation was unable to be substantiated as there was insufficient evidence. She found that no breach occurred.

Allegation 14 – following Mr Miels around the store while he was shopping

[184] It was alleged that following the incident described in allegation 12, Mr Angelakos started following Mr Miels around the store while Mr Miels was shopping outside of work hours. Mr Miels alleged that Mr Angelakos would quite obviously follow him from aisle to aisle and stare at him.

[185] Further, it was put to Mr Angelakos that on one occasion when Mr Miels had been shopping with his roommate, Mr Angelakos followed them around the store for approximately 25 minutes, and to the extent that they could not finish shopping as Mr Miels’ roommate became uncomfortable with Mr Angelakos’ behaviour.

[186] In is written response Mr Angelakos stated:

[187] In a telephone call with Ms Mulenga on 2 March 2018 he said words to the effect:

[188] Ms Mulenga considered the following in making her finding:

[189] Ms Mulenga determined that the allegation was substantiated on the basis of evidence to support. She found that there had been a breach of the Code – What we expect from our team members/leaders.

Allegation 15 – “I’m the only person to you let you out”

[190] It was alleged that during late November 2017, Mr Miels had had been hesitant to ask for Mr Angelakos’ assistance to leave the store out of hours, so he asked for another team member to help him exit the store. The following day, Mr Angelakos approached Mr Miels in the team room and yelled at him, “I’m the only person to let you out from now on. You can’t let anyone else let you out of the store. Do you understand?” Mr Miels was shocked by Mr Angelakos’ yelling and did not immediately respond. Mr Angelakos again yelled, “Do you understand?” to which Mr Miels softly responded, “yes”, before Mr Angelakos walked away.

[191] In his written statement Mr Angelakos stated:

[192] In a telephone call with Ms Mulenga on 2 March 2018 he stated:

[193] Ms Mulenga considered that witness evidence does not support that Mr Angelakos yelled or behaved in an aggressive or intimidating manner. Ms Mulenga determined the allegation was unsubstantiated as evidence does not support the allegation. She found that no breach occurred.

Allegation 16 – speaking about Mr Miels to others

[194] It was alleged that Mr Angelakos made comments about Mr Miels to several other team members from the services department to the effect that Mr Miels was ‘not doing what he had asked him to do, was not doing his work, was disrespectful towards him, was not a very good team player and was lazy’. It was also alleged that Mr Angelakos said to team member, Mr Shaun Huntley, “Why are you always on Jacob’s side and never on my side when I talk to him?” It was alleged that Mr Angelakos had stopped talking to Mr Huntley after that discussion.

[195] In his written response, Mr Angelakos denied completely making any of the alleged statements.

[196] The allegation that Mr Angelakos had spoken to Mr Huntley about Mr Miels was substantiated based on witness evidence obtained by Ms Mulenga. The other two staff members were unable to be contacted and on those comments, Ms Mulenga found that they were unable to be substantiated due to insufficient evidence. Relevant to the comment made to Mr Huntley, Ms Mulenga found the allegation substantiated as she considered there was evidence to support the allegation. She found that there had been a breach of the Code – What we expect from our team members/leaders.

Allegations made by witness CD – including allegations 17, 18, 19, 20, 21, 22, 23, 24 and 25

[197] CD gave a witness statement in this matter and was cross-examined. She was employed as a Team Member at Coles Moranbah from 22 January 2018 until 6 July 2018, working predominantly in the Dairy department. CD had previously worked as a Deli Manager at a Woolworths store in Brisbane for seven years. She was employed on a full-time basis with Coles until March 2018, when she changed to be employed on a casual basis. She is 23 years old.

[198] It should be noted that CD and Mr Angelakos only worked together for the period 22 January 2018 until 1 February 2018 when he was suspended.

[199] CD immediately held concerns with respect to Mr Angelakos. It is her evidence that she asked the Deli Manager, Kim, for advice on dealing with him. CD recalled that Kim said to her, “You need to put him in his place”, and advised her to try standing three steps away from him.

[200] CD tried what Kim had suggested, taking a step back from Mr Angelakos when he approached, while gesturing towards the space in front of him with her hands and saying words to the effect, “We've all got personal space. I have my bubble. You have yours.” She said that this had no effect, so she reached out to Kim again after this incident. CD recalled asking Kim to keep an eye out for her from the deli when she could, which Kim agreed to do. CD stated that despite Kim keeping an eye out for her, she could not look out for her constantly, and she still had a number of interactions with Mr Angelakos.

[201] CD stated that after finishing her shift on 28 January 2018, she approached Ms Bainbridge and said to her words to the effect, “I’m not doing it anymore”, and disclosed her issues and interactions with Mr Angelakos. CD stated that Ms Bainbridge asked her to write her issues with Mr Angelakos down when she could, and Ms Bainbridge would then forward it to Coles’ Human Resources team.

[202] That evening she prepared a handwritten note documenting the incidents of Mr Angelakos’ inappropriate conduct and provided it to Ms Bainbridge on 29 January 2018. A copy of the note CD wrote about Mr Angelakos on 28 January 2018 is annexed to CD’s statement in these proceedings. 30

[203] CD stated that as a consequence of her interactions with Mr Angelakos she had grown frightened of him and concerned about how he would act if she was to see him in person again.

Allegation 17 – staring at her whilst shopping with her boyfriend

[204] CD accepted a role at the store, and 10 days before she was due to commence the role she attended the store with her boyfriend to do grocery shopping. When she walked into the store, Mr Angelakos was filling an end near the service desk area and CD noticed that Mr Angelakos was ‘staring her down’. His eyes seemed fixated on her. She walked down the perishables aisle and noticed that Mr Angelakos kept watching her and following her. CD felt that he may have thought she was stealing. When CD walked past Mr Angelakos she said to her boyfriend loudly, “Does he think I’m stealing?”, then noticed that Mr Angelakos stopped following and staring at her.

[205] It is agreed that Mr Angelakos would not have known that CD would imminently become an employees of Coles.

[206] In his written response, Mr Angelakos stated:

[207] In a telephone call with Ms Mulenga on 2 March 2018 he stated that the incident did not occur.

[208] Ms Mulenga considered the following in making her finding:

[209] Ms Mulenga determined that the allegation of following CD was substantiated on the balance of probabilities, but that on the issue of unreasonableness it was unsubstantiated as evidence does not support a finding against Mr Angelakos. Ms Mulenga concluded that no breach had occurred.

[210] Mr Spargo put further questions in respect of this allegation to Mr Angelakos during the conference. Mr Spargo asked Mr Angelakos whether he recalled encountering CD before she started employment at the Coles Moranbah store. Mr Angelakos stated that he did not know whether he encountered CD before she started work at the store when she was a customer, but stated further that there had been a major problem with theft at the store and ‘the way CD was behaving suspiciously caught my attention’. Mr Angelakos clarified that he did not see CD finalise a transaction on the day in question, so he did not know for what purpose she had entered the store. 31

[211] Mr Angelakos confirmed to Mr Spargo that he had noticed that CD had been looking over at Mr Angelakos repeatedly on the day in question, which Mr Angelakos had thought suspicious. Mr Spargo put to Mr Angelakos that CD may have been looking at him because he was looking at CD. Mr Angelakos originally denied that he had looked at CD at all, but eventually conceded to Mr Spargo that he must have looked at CD to have seen CD looking at him.

[212] Similarly, Mr Angelakos denied having followed CD around the store, but stated that he walked around the store at the time CD was in the store, which he ‘did not consider… following. I was just keeping an eye on suspicious behaviour’.

[213] Mr Spargo took Mr Angelakos to his written response to allegation 16 as part of the investigation, in which Mr Angelakos stated, ‘I believe at the time CD was not even employed at the store yet and I do not remember this at all’. It was put to Mr Angelakos that his answers given during the conference showed that he did recall the incident in question. In answering questions from me, Mr Angelakos clarified that by writing, ‘I do not remember this at all’, his intention had been to state that he did not remember unreasonably following CD around the store, not that he did not remember the incident itself, and that the written response was not different from his answers given at the conference.

[214] Mr Spargo put to Mr Angelakos that his written response indicated that he had not recalled the incident at all. Mr Angelakos stated that he had recalled the incident at the time, and had intended to indicate by his written response that he did not recall unreasonably following CD around the store.

[215] Mr Spargo put to Mr Angelakos that he had not followed CD around the store because he thought that CD was stealing, but because he found CD to be attractive. Mr Angelakos stated that Mr Spargo’s allegation was baseless and false.

[216] Further, Mr Spargo put to Mr Angelakos that it was common for him to stare at and follow persons that had entered the store that he found to be attractive. Mr Angelakos denied that allegation.

Allegation 18 – “you stand out from everybody”

[217] It was alleged that at approximately 7:00pm on 24 January 2018, he approached CD in an aisle of the store and said to CD that she ‘looked off’ and asked how CD was feeling. CD responded that she was feeling homesick after relocating to Moranbah. It was alleged that Mr Angelakos said to her, “You stand out from everybody” in reference to her appearance. CD considered that Mr Angelakos was attempting to flirt with her. She responded, “Does my boyfriend stand out too?”, after which Mr Angelakos walked away.

[218] It was also put to Mr Angelakos that over the course of CD’s first week of employment at the store, he made unwelcome comments to her including, “Your tattoos are very pretty”, “Your piercings are very pretty”, and “You are looking really nice today”.

[219] In his written response Mr Angelakos stated:

[220] In a telephone call with Ms Mulenga on 2 March 2018 he stated that he could not recall CD saying, “Does my boyfriend stand out too?” He said he remembered the conversation ending with CD continuing to do her work and he continued to do his work.

[221] Ms Mulenga considered the following in making her finding:

[222] Ms Mulenga determined the allegation was substantiated with evidence to support. She found that there had been a breach of the Equal Opportunity Policy – Sexual harassment.

[223] In cross-examination, Mr Angelakos denied commenting on CD’s appearance from time to time, and repeated his denial that he had commented on CD’s tattoos and piercings as alleged.

Allegation 19 – repeated requests to become Facebook friends

[224] It was alleged that at around 8:00pm on the same day, Mr Angelakos approached CD in an aisle of the store and said to her, “Just wanted to let you know that I’m on Facebook. It will cost $10 to have me on Facebook and with that you will get a like on one of your photos that I like and one message”. CD replied that she did not have Facebook.

[225] It was alleged that over the next few days Mr Angelakos repeatedly asked CD about Facebook and suggested that CD connect with him on Twitter as an alternative. CD declined all of Mr Angelakos’ requests by stating that she does not have social media.

[226] In his written response Mr Angelakos stated:

[227] In a telephone call with Ms Mulenga on 2 March 2018 he stated that he has said it to other team members and named six team members. He said that all of these team members laughed at the Facebook joke, without a doubt. “CD laughed at the joke”, he claimed.

[228] Ms Mulenga considered the following in making her finding:

[229] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Equal Opportunity Policy – Sexual harassment.

[230] Mr Spargo put to Mr Angelakos that he only made the Facebook joke to young persons that he found attractive, including CD and KL. Mr Angelakos denied that allegation and stated he made the joke to multiple people in the store of both genders.

[231] Mr Spargo put to Mr Angelakos that by making the joke, he had been attempting to connect with CD away from work. Mr Angelakos denied that allegation. Mr Angelakos agreed with Mr Spargo that it would be inappropriate for him to connect with CD outside of work.

[232] In cross-examination, Mr Spargo put to Mr Angelakos that he had stood unreasonably close to CD when making the comment about Facebook. Mr Angelakos denied that he had stood close to CD. Mr Angelakos stated that CD had laughed at his joke and had not made any other response.

[233] Mr Spargo put to Mr Angelakos that he had asked CD twice more to be his Facebook friend and had asked CD to connect with him on Twitter. Mr Angelakos denied that conduct and stated that he only asked CD to be his Facebook friend once and stated that he did not have a Twitter account.

Allegation 20 – first day of work offering flowers

[234] It was alleged that while CD was at work on her very first shift on 22 January 2018, Mr Angelakos approached her while she was in the dairy area and said to her to see him if she had any problems. Mr Angelakos continued to approach her throughout her shift, around 10 times. She told him that she did not require help. CD considered Mr Angelakos’ approaches to be excessive and unnecessary.

[235] It was alleged further that at approximately 4:00pm on the same day, and after she had immediately finished what was her first shift at Coles, Mr Angelakos approached her and interrupted her on the phone. She was calling her boyfriend. He presented to her a bunch of flowers and said, “I’ve bought you these flowers for doing such a great job”. CD declined the flowers and walked away.

[236] In his written response, Mr Angelakos stated:

[237] In a telephone call with Ms Mulenga on 2 March 2018 he stated that he did not keep approaching CD. He could not recall how many times he approached her during her first shift.

[238] Ms Mulenga considered the following in making her finding:

[239] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Equal Opportunity Policy – Sexual harassment.

[240] In cross-examination, Mr Spargo put to Mr Angelakos that during CD’s first shift at the store, he had approached CD and attempted to talk to CD ten times about non-work related matters within CD’s four-hour shift. Mr Angelakos denied having spoken to CD that number of times during CD’s first shift.

[241] It was put to Mr Angelakos that he continued to talk to CD about non-work related matters each shift after CD’s first, approximately five times per shift. Mr Angelakos stated that he could not give a precise number of how many times he had spoken to CD about non-work related matters during each of CD’s shifts. Mr Angelakos stated that he spoke to all team members about non-work related matters from time to time to foster good working relationships, including CD.

[242] Mr Spargo put to Mr Angelakos that Mr Angelakos spoke to young persons that he found attractive like CD about non-work related matters more than other staff members. Mr Angelakos denied that allegation.

[243] Mr Spargo asked Mr Angelakos whether he had considered that he, as an older man and as CD’s manager, offering to give her flowers after her first day might have made her feel uncomfortable. Mr Angelakos stated that he had not considered that, because he and CD had had a jovial relationship and they both joked around with each other. Mr Angelakos stated that he had no reason to believe that she felt uncomfortable.

Allegation 21 – invading personal space

[244] It was alleged that during Mr Angelakos’ discussions with CD on 22 January 2018, on her first day of work, he stood uncomfortably close to her. CD continued to step back from Mr Angelakos, and on one occasion said to Mr Angelakos, “You are getting a bit close for me – can you step back? We both have our personal space.” Mr Angelakos replied. “Yep, yep”, however he continued to step close to CD throughout the day and stood within one foot of her. CD continued having to step back away from Mr Angelakos.

[245] In his written response, Mr Angelakos stated:

[246] In a telephone call with Ms Mulenga on 2 March 2018 he stated:

[247] Ms Mulenga considered the following in making her finding:

[248] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Equal Opportunity Policy – Sexual harassment.

[249] In cross-examination, Mr Spargo put to Mr Angelakos that he had stood very close to CD when speaking to her. Mr Angelakos repeated the possible reasons from his written response for staff to speak closely or privately while on the shop floor. Mr Angelakos also stated that following his dismissal he had been made aware that he had an issue with his hearing which had existed during his employment at Coles Moranbah. Mr Angelakos acknowledged that he had stood close to some employees on occasion at the store, but he could not say which employees. However, Mr Angelakos denied that he had stood close to CD while speaking to her.

[250] Mr Angelakos did not agree that CD often stepped back from him, and he denied that he would then step towards her again when she stepped away. Mr Angelakos accepted that it would be highly inappropriate to continue to step toward an employee that was attempting to put distance between themselves and him during a discussion.

Allegation 22 – closing the cool room door and discussing non-work related matters

[251] The allegation is as follows:

[252] In his written response, Mr Angelakos stated:

[253] In a telephone call with Ms Mulenga on 2 March 2018 he stated:

[254] Ms Mulenga considered the following in making her finding:

[255] Ms Mulenga determined that the allegation of offering unwanted assistance was substantiated with evidence to support the allegation. She determined that the allegation of closing the cold room door was unable to substantiated as there was no evidence to support. She found that there had been a breach of the Code – What we expect from our team members/leaders. She added the following additional notes:

[256] In cross-examination, Mr Spargo put to Mr Angelakos that while both he and CD had been in the cold room, CD had motioned to leave and Mr Angelakos had intentionally not moved aside, forcing CD to brush past Mr Angelakos as she left the room. Mr Angelakos stated that he had never entered the cold room and only stood in the entryway, as the stock in the room would have prevented him from entering.

[257] Mr Angelakos acknowledged that he had offered to help her and she had declined. Mr Angelakos stated that after offering to help her, he took a pallet of milk from the room and left. Mr Angelakos denied forcing CD to brush past him as she exited the room. Mr Angelakos agreed that such behaviour would be highly inappropriate.

Allegation 23 – speaking firmly to CD

[258] The allegation is as follows:

[259] In his written response, Mr Angelakos stated:

[260] In a telephone call with Ms Mulenga on 2 March 2018 he stated that he believed that he said to CD, “I asked nicely but not firmly to put those roll cages away”.

[261] Ms Mulenga considered the following in making her finding:

[262] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Code – What we expect from our team members/leaders.

Allegation 24 – speaking aggressively to CD for misplacing RF gun

[263] It was alleged that during CD’s shift on 28 January 2018 she misplaced an ‘RF gun’, used to scan barcodes to return information about stocked grocery items. CD advised Mr Angelakos and the two looked for the RF gun but could not find it. At approximately 3:55pm, CD was disposing of rubbish in the back area of the store when Mr Angelakos called out to her from near the cold room in an aggressive tone, “Come here, [CD], come here”. CD responded, “When I’ve finished my rubbish I will”, and Mr Angelakos continued to yell in a more aggressive tone, “Come here now” [emphasis retained]. CD finished disposing of rubbish and then walked over to Mr Angelakos.

[264] Mr Angelakos gestured for CD to follow him into the cold room and CD followed. Mr Angelakos said to CD in an angry tone, “You are not to ignore me”, to which CD responded, “Yep”. Mr Angelakos asked CD, “Have you found the RF gun?” CD responded that she had not and Mr Angelakos said in a threatening tone, “I will have to go and report it to the store manager that it’s lost in case anybody asks questions about it”. CD responded, “Yeah, you can go dob on me”.
[265] Mr Angelakos raised a performance issue against CD in respect of the RF gun issue. It was alleged that Mr Angelakos raised the issue because he was displeased that CD had not immediately followed Mr Angelakos’ direction after said, “Come here, [CD], come here”.

[266] In his written response, Mr Angelakos stated that CD had said to him that she had lost the RF gun in the cold room, and he helped CD to look for it for about ten minutes. CD asked to borrow Mr Angelakos’ RF gun, and said to him that she would look for the other one later. Mr Angelakos said that it was important to locate the RF gun as it would be in high demand for a stocktake of perishable items the next day.

[267] Mr Angelakos responded that CD had been disposing of waste cardboard with Ms van Eykelenborg just before the end of CD’s shift. Mr Angelakos summoned CD to the dairy room to ask about the location of the RF gun. Mr Angelakos stated that CD said, “I don’t know, I can’t find it”, but had showed no genuine concern about the location of the RF gun. He stated that he had been disappointed that he had to follow the issue up with CD just before her shift ended, and she had not sought to communicate with him about the issue.

[268] Mr Angelakos recalled calling out to CD, “[CD], come here please”, but denied that he yelled at CD. Mr Angelakos denied saying, “You are not to ignore me.” Mr Angelakos recalled that he told CD that he would have to report the lost RF gun to the store manager, but denied that he used a threatening tone. Mr Angelakos recalled that he said, “If the store manager asks me what happened to it, I’m going to have to tell him what happened to it”. Mr Angelakos did not recall that CD said, “Yeah, you can go dob on me” or anything at all. Mr Angelakos recalled that CD simply walked away.

[269] Ms Mulenga considered the following in making her finding:

[270] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Code – What we expect from our team members/leaders.

[271] In cross-examination, Mr Angelakos agreed that after CD had not come to him after his first call, Mr Angelakos had called out loudly, “Can you come here now, please?” Mr Angelakos denied that he called out in an aggressive tone. It was put to Mr Angelakos that after she came over to him, Mr Angelakos had stood 10 to 15 centimetres from her face and said, “You are not to ignore me ever.” Mr Angelakos denied making that statement or standing that close to CD.

[272] Further in cross-examination, Mr Angelakos stated that he had raised CD’s loss of the RF gun and her behaviour to Mr Morton on the first day of Mr Morton’s employment at Coles Moranbah, on or about 29 January 2018. 32

Allegation 25 – dairy waste bucket

[273] The allegation is as follows:

[274] In his written response Mr Angelakos stated:

[275] In a telephone call with Ms Mulenga on 2 March 2018 he stated that he said to her, “Leave it out there for a moment, there is nothing in there”. He asked, “What’s with the attitude?” He considered that she came across as though she was reprimanding him for doing something.

[276] He told Ms Mulenga, “It was rude, very rude. Her tone and her manner was rude. It was wrong the way she replied to me and the way she went about it. She didn’t ask me. She said she didn’t want to have a conversation with me unless a third party was present. I assume this was in response to me asking her what’s with the attitude? I logged into the register next to CD for the priority call. There was no intent to stand close to her. I can confirm I asked her if I can talk to her yet, and she said, “No, Peter, you can not”. I said to her, “Let me know when you are ready to talk”. I was disappointed about what had transpired and the way she reacted in the cool room, the way she spoke to me, it was disappointing.”

[277] Ms Mulenga considered the following in making her finding:

[278] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Code – What we expect from our team members/leaders.

[279] In cross-examination, Mr Angelakos said that after he put the dairy waste bucket outside the cold room, CD grabbed it in like a ‘maniac way’ and put it inside and said, “No, Jo’s told me to leave it here all the time”.’ Mr Angelakos said that she was very abrupt and very rude.

[280] Mr Spargo put to Mr Angelakos that CD had indicated to him that she did not feel safe speaking to Mr Angelakos without a third person present, and despite that, Mr Angelakos had approached her several more times on 29 January 2018. Mr Angelakos stated that CD had not taken the right attitude in their working relationship. Mr Angelakos stated that he had not given CD any reason to feel unsafe speaking to him alone.

Allegations made by Laura Kanowski – including allegations26, 27, 28 and 29

[281] Ms Kanowski is Ms Bainbridge’s daughter and Mr Miels’ girlfriend. She worked at the store but has since left. She did not provide a witness statement in these proceedings and was not contactable. Her allegations made to Coles during her employment were taken into consideration by Ms Mulenga.

Allegation 26 – threats not to make complaints

[282] It was alleged that between approximately 6:00pm on an undescribed date in August 2017, Ms Kanowski was in the store's assisted checkout area. She used the store’s loudspeaker system to call for a price check on an item. Mr Angelakos approached the assisted checkout area but did not enter the area. Mr Angelakos mumbled and muttered, to which Ms Kanowski had to say to Mr Angelakos, “I can’t hear you, sorry” several times. Mr Angelakos repeated in an agitated tone, “Just put it through”, mumbled to himself and then walked away. Ms Kanowski called after Mr Angelakos and said, “I need a price check though, I need you to check the ticket”, but Mr Angelakos continued to walk away. Ms Kanowski then contacted Linda, the customer service supervisor, to request assistance with the price check. Ms Kanowski alleged that she believed Linda discussed the matter with Mr Angelakos in conducting the price check.

[283] Approximately 30 minutes later, Ms Kanowski was in the back area of the store when Mr Angelakos called out to her in a threatening and intimidating tone and said, “Laura, be careful next time you think to complain about me”. Ms Kanowski replied, “Oh, why is that?” Mr Angelakos mumbled erratically and said something about telling her problem to his face, rather than behind his back. Ms Kanowski stated that she attempted to defuse the incident by responding calmly before Mr Angelakos walked away.

[284] In his written response, Mr Angelakos stated that he did not recall the incident occurring at all, and implored Ms Mulenga to inquire with others about his vast experience and how promptly he deals with matters. In a telephone call with Ms Mulenga on 2 March 2018 he stated that the incident did not occur.

[285] Ms Mulenga considered the following in making her finding:

[286] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Equal Opportunity Policy – Victimisation.

Allegation 27 – odd behaviour

[287] It was alleged that on an undescribed date during October 2017, Ms Kanowski was serving a customer at the service kiosk when Mr Angelakos entered the service kiosk and began to collect price tickets approximately 20 centimetres from where Ms Kanowski was standing. Ms Kanowski said to Mr Angelakos, “Oh they are yours, I was wondering whose they were”. Mr Angelakos did not respond to Ms Kanowski, avoided eye contact with her and walked away. Ms Kanowski alleged that the customer she was serving commented to her that Mr Angelakos’ behaviour was odd.

[288] In his written response, Mr Angelakos stated that he did not remember the incident at all.

[289] This allegation was unable to be substantiated due to insufficient evidence available to Ms Mulenga.

Allegation 28 – “I’m the boss, you have to do what I say”

[290] It was alleged that at approximately 7:30pm on the day following the 2017 stocktake of the store, Ms Kanowski was working at the registers and was the only person present that was authorised to sell cigarettes through the service kiosk. Mr Angelakos approached Ms Kanowski and directed her to return to the shelves a filled trolley of loose stock. Ms Kanowski attempted to explain to Mr Angelakos that she should not leave the service kiosk and said to him, “I don’t think that is a good idea”. Mr Angelakos rolled his eyes, acted belligerently and said, “There are all these returns out the back and you are just standing here – someone needs to do these returns. Just do them, they need to be done.” Further, he said, “I’m the boss, you have to do what I say”. Ms Kanowski alleged that Mr Angelakos did not listen to her explanation and threatened to talk to the Store Manager and Customer Service Manager about Ms Kanowski ‘not doing her job’.

[291] In his written response Mr Angelakos stated that he could not recall the incident occurring and doubted that it had occurred. Mr Angelakos responded that he would like to know which stocktake and which month Ms Kanowski’s allegations related to. In a telephone call with Ms Mulenga on 2 March 2018 he stated that the incident did not occur.
[292] Ms Mulenga considered the following in making her finding:

[293] Ms Mulenga determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Code – What we expect from our team members/leaders.

Allegation 29 – following her around the store while shopping

[294] It was alleged that on an undescribed date in December 2017, Ms Kanowski was shopping in the store with Mr Miels and another friend of theirs. Ms Kanowski recalled that Mr Angelakos kept appearing in aisles as they were shopping and appeared to randomly fix stock before walking away. Ms Kanowski recalled that after they had left the store, she looked back and saw Mr Angelakos walk over to the assisted checkout area and stare at them as they walked away.

[295] Mr Angelakos made the same written response in respect of this allegation as he did in respect of the Allegation 13, made by Mr Miels. Mr Angelakos denied following Ms Kanowski.

[296] Ms Mulenga considered the following in making her finding:

[297] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Code – What we expect from our team members/leaders.

Allegations made by Luke Hassal – including allegation 30

Allegation 30 – work faster, hurry up

[298] It was alleged that at around 10:00pm on an undescribed date during November 2017, Mr Angelakos approached Mr Hassal while Mr Hassal was filling stock on the store floor. Mr Angelakos abruptly said to him, “Work faster, better, hurry up”. Mr Hassal tried to explain to Mr Angelakos he was feeling nauseous and was doing his best. It was alleged that Mr Angelakos was dismissive of Mr Hassal’s condition and said, “Too bad, it’s not good enough, do better anyway”. It was alleged that 5–10 minutes later, Mr Angelakos was speaking to another team member about five metres away from Mr Hassal, and Mr Angelakos said loudly enough for Mr Hassal to hear, “When I tell someone to do something I expect them to do it”. Mr Hassal thought that Mr Angelakos’ comment was directed towards him in a passive/aggressive manner.

[299] In his written response and oral responses Mr Angelakos stated that he was always sympathetic of team members’ health and always said that if a team member was not feeling well they should go home. Mr Angelakos denied saying to Mr Hassal, “Work faster, better, hurry up” or “Too bad, it’s not good enough do better anyway”, and suggested that if he had said anything, he would have nicely said words to the effect of, “Luke please as a matter of urgency, try and be faster”. He stated that he merely asked Mr Hassal to work faster as it was a busy shift and he was getting behind. He denies that he would ever ignore an employee who complained of feeling unwell and claims that he was very sympathetic to Mr Hassal whenever he made complaints about feeling unwell.

[300] Ms Mulenga considered the following in making her finding:

[301] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Code – What we expect from our team members/leaders.

Allegations made by witness KL – including allegations 31, 32, 33, 34, 35, 36, 37, 38 and 39

[302] Witness KL is a woman in her mid-20’s and is therefore not a junior. Ms Slater gave evidence that KL is not able to participate in the proceedings as she is suffering symptoms of anxiety from having been involved in the investigation process. KL was employed performing nightfill duties.

Allegation 31 – not to touch anybody past the elbow

[303] It was alleged that after 9:00pm on an undescribed date a few weeks after Mr Angelakos started working at the store, KL was pushing a ‘flatbed’ trolley down an aisle and Mr Angelakos was walking alongside KL. It was alleged that Mr Angelakos touched KL on the shoulder, similar to a pat on the back, and then said, “Whoops, sorry, I’m not allowed to touch anyone past the elbow, please don’t tell anyone”. Mr Angelakos then walked away. KL was shocked by Mr Angelakos’ comment and felt uncomfortable.

[304] In his written response, Mr Angelakos stated that the allegation was false and baseless and he could not recall the incident having occurred at all. Mr Angelakos’ response stated, ‘Is there any reason why this was not raised with either the nightfill captain or any other manager afterwards if indeed this was the case.’

[305] Ms Mulenga considered the following in making her finding:

[306] Ms Mulenga determined that the allegation of a touch or pat to the shoulder was substantiated on the balance of probabilities. She determined that the alleged comment was unable to be substantiated due to insufficient evidence. Ms Mulenga found that there had been no breach as the shoulder touch/pat was not considered unwelcome at the time, and did not cause concern until the alleged comment was made.

Allegation 32 – preferential treatment

[307] KL reported that she considered that Mr Angelakos gave her preferential treatment during her employment at Coles Moranbah. She alleged that Mr Angelakos would find her and talk to her during night-shift re-stocking. Mr Angelakos would stand and talk to KL as she worked, and sometimes went out of his way to help KL unpack flatbed trolleys and fill shelves or pull empty boxes from shelves without KL requesting assistance. She noticed that Mr Angelakos did not provide similar assistance to other nightfill staff.

[308] In his written response Mr Angelakos stated:

[309] In a telephone call with Ms Mulenga on 2 March 2018 he stated:

[310] Ms Mulenga considered the following in making her finding:

[311] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Code – What we expect from our team members/leaders.

Allegation 33 – inquiring about personal life

[312] It was alleged that Mr Angelakos consistently attempted to engage KL in non-work related conversations and inquired about KL’s personal life. It was alleged that KL initially responded to Mr Angelakos in an attempt to be polite but over time felt that Mr Angelakos’ attention towards her was excessive and unwelcome. KL particularised four instances of this conduct.

[313] It was alleged that on an undescribed date in August 2017, KL was working in an aisle of the store with another team member. Mr Angelakos entered the aisle and ‘made a beeline’ for her past the other team member and started talking to KL.
[314] It was alleged that on an undescribed date in September 2017, KL asked Mr Angelakos where empty banana boxes were kept. He asked why, and KL responded that she was moving house and was collecting boxes. Over KL’s next few shifts, Mr Angelakos repeatedly asked KL, “Why are you moving?”, and inquired about KL’s personal life. She responded to Mr Angelakos’ questions but felt relentlessly pursued by Mr Angelakos as he continued to ask KL why she was moving after KL had answered.

[315] It was alleged that during November 2017, KL’s shifts had been reduced to one to two shifts per week. On an undescribed date during November 2017, Mr Angelakos repeatedly approached KL at work and asked KL, “Why haven’t you been at work?”, “Have I done something wrong?”, and “When will I see you again?”

[316] It was alleged that over the weekend of 13 and 14 January 2018, Mr Angelakos approached KL several times and repeatedly said to her, “You never work anymore”, “You only work when I’m not here”, and “Why don’t you work anymore?”

[317] In his written response, Mr Angelakos stated that all of the allegations contained within Allegation 32 were fabricated and not true. Mr Angelakos acknowledged that KL had asked Mr Angelakos to speak to the fresh produce department about banana boxes for KL’s use in moving. Mr Angelakos stated that he had asked KL why she was moving simply out of curiosity.

[318] Ms Mulenga considered the following in making her finding:

[319] Ms Mulenga determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Code – What we expect from our team members/leaders.

Allegation 34 – repeated requests to become Facebook friends

[320] It was alleged that at approximately 9:30pm on 1 November 2017, Mr Angelakos approached KL while she was working in an aisle of the store and asked her if she is on Facebook? After KL responded ‘yes’, Mr Angelakos said to her, “Yeah, I know, I saw your profile. You look much better in real life than you do on Facebook”.

[321] On one or two occasions after 1 November 2017, Mr Angelakos approached KL and asked her to be his friend on Facebook. On these occasions, Mr Angelakos said to KL words to the effect, “Let’s be friends on Facebook”, and “You could pay me to write things on your Facebook”. KL declined each of Mr Angelakos’ requests. KL felt uncomfortable about Mr Angelakos searching for her on social media, his comments on her appearance and his persistent requests to connect with her on Facebook.

[322] In his written response Mr Angelakos stated:

[323] In a telephone call with Ms Mulenga on 2 March 2018 he stated:

[324] Ms Mulenga considered the following in making her finding:

[325] Ms Mulenga determined that the allegation to connect on Facebook was substantiated with evidence to support. She determined that allegation regarding a comment on appearance was substantiated on the balance of probabilities. She found that there had been a breach of the Equal Opportunity Policy – Sexual harassment.

Allegation 35 – speaking poorly to nightfill dairy staff

[326] It was alleged that on occasion during September and October 2017, KL worked nightfill shifts in the store’s dairy department, restocking dairy items on shelves. KL recalled that Mr Angelakos’ behaviour toward KL and other nightfill staff was ‘nasty and moody’. KL recalled that Mr Angelakos often told staff, “You need to be quicker”, “You are going slow”, “Not good enough”, and generally put them down. KL recalled that this behaviour was exacerbated toward Mr Hassall, whom KL noticed was targeted by Mr Angelakos.

[327] Mr Angelakos denied that he had made statements as alleged by KL. Mr Angelakos acknowledged that he had said things to dairy nightfill staff to manage their performance. Mr Angelakos recalled that had said words to the effect of, “Time is running out”, “We are going to struggle to complete this load”, and “We need to bring a sense of urgency into our work”.

[328] Mr Angelakos stated that multiple people within the Coles Moranbah store had expressed reservations about Mr Hassall’s performance in dairy nightfill shifts, including Mr Holloway, previous dairy managers and other team members. Mr Angelakos stated that it was frustrating when KL worked with Mr Hassall because KL also had ‘questionable’ performance in the dairy nightfill shifts as she did not often work those shifts. Mr Angelakos stated that he may have told to KL to “Try not to engage too much with Luke” while working dairy nightfill shifts.

[329] Ms Mulenga considered the following in making her finding:

[330] Ms Mulenga determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Code – What we expect from our team members/leaders.

Allegation 36 – suggesting a relationship in ‘another life’

[331] It was alleged that on an undescribed date in September 2017, KL was working in an aisle of the store and was approached by Mr Angelakos, who attempted to make conversation with her. Her responses to Mr Angelakos were short, and Mr Angelakos asked KL why she wasn’t more talkative?

[332] KL told Mr Angelakos that he had not been very nice during KL’s last shift in the dairy department. Mr Angelakos said to KL, “Oh really, I wasn’t very nice?”, and KL replied, “No”. Mr Angelakos briefly walked away from KL before returning, when he said to her, “Did you really mean that?” She answered yes.

[333] Mr Angelakos said to KL, “You know what [ KL], you and me we could be something special maybe…in a different life”. KL pretended not to hear Mr Angelakos and Mr Angelakos walked away. She stated that she was shocked by Mr Angelakos’ comment and felt uncomfortable.

[334] In his written response Mr Angelakos stated that the KL’s allegation was ‘totally wrong and disparaging’.

[335] Ms Mulenga considered the following in making her finding:

[336] Ms Mulenga determined that the allegation was unable to be substantiated as there was insufficient evidence. Ms Mulenga concluded that no breach had occurred.

Allegation 37 – inquiries about KL’s sister

[337] It was alleged that on an undescribed date in September 2017, KL was shopping in the Coles Moranbah store with her sister, prior to the start of KL’s shift. Mr Angelakos waved to KL and her sister as they entered the store. KL noticed Mr Angelakos a few times while she continued to shop, and thought that Mr Angelakos was trying to work out who her sister was.

[338] While KL and her sister were at the checkout, Mr Angelakos approached them, greeted KL and asked her, “What brings you here?” KL responded, “The money”. Mr Angelakos said to her, “No it doesn’t, I bring you here, you come to see me”.

[339] KL felt uncomfortable and felt that Mr Angelakos’ comment was inappropriate. Mr Angelakos continued to talk to KL’s sister and asked her questions to the effect of, “Where are you from?”, “What brings you to Moranbah?” and “How long are you here for?”

[340] In his written response, Mr Angelakos stated that he could not remember the incident at all and did not believe that it had happened. Mr Angelakos stated that he did not know what KL’s sister looks like and could not picture her.

[341] Ms Mulenga considered the following in making her finding:

[342] Ms Mulenga determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Code – What we expect from our team members/leaders.

Allegation 38 – standing within 10cm of KL

[343] It was alleged that on an undisclosed date in November 2017, Mr Angelakos approached KL while she was working in an aisle of the store. Mr Angelakos began talking to KL and got very close to her; within 10 centimetres of her face. Mr Angelakos also stood behind KL while she was filling shelves.

[344] KL stated that she felt uncomfortable and tried to be short with her responses to Mr Angelakos. He asked KL, “What’s wrong?”, and KL replied that she was busy and just trying to work. Mr Angelakos eventually walked away.

[345] In his written response, Mr Angelakos stated simply that the allegation was ‘another baseless and vague allegation’.

[346] Ms Mulenga considered the following in making her finding:

[347] Ms Mulenga determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Equal Opportunity Policy – Sexual harassment.

Allegation 39 – inappropriate inquiries about KL’s attribute

[348] It was alleged that during the day on an undescribed date in mid-January 2018, KL was shopping at the Coles Moranbah store. While she was waiting at the deli counter, Mr Angelakos approached and greeted her, and she returned his greeting. Mr Angelakos walked away but shortly returned and said to her, “What’s that on your [body part]” KL told Mr Angelakos what it was, to which Mr Angelakos responded, “Is it new, I have never noticed it on you?”

[349] KL said to Mr Angelakos that she had this [attribute] since 2003, and Mr Angelakos said “oh ok” and walked away. Mr Angelakos returned again and leant over KL’s shoulder and said, “Do you think I would look good with a [the same attribute]?” to which KL responded, “I don’t know”.

[350] Mr Angelakos continued to ask KL questions to the effect of, “How much was it?” and “Where did you get it done?” KL stated that she felt very uncomfortable with Mr Angelakos’ approaches. KL answered Mr Angelakos’ questions to be polite, but wished that Mr Angelakos had left her alone.

[351] In his written response Mr Angelakos stated that he recalled most of the conversation with KL. He recalled asking KL about how much the [attribute] had cost and where KL had ‘got it done’. He did not recall that she said that they had had the [attribute] since a certain school grade, and he did not believe that he had leant over KL’s shoulder and said, “Do you think I would look good with [the attribute]”.

[352] Mr Angelakos stated further that he had been totally unaware of KL’s discomfort and how she felt towards him. He had thought that he was making conversation with her. Mr Angelakos noted that as of mid-January 2018 he had no knowledge of any complaints or allegations being made in respect of his conduct. Mr Angelakos stated that had those matters been brought to his attention earlier, he would not have approached KL.

[353] Ms Mulenga considered the following in making her finding:

[354] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Equal Opportunity Policy – Sexual harassment.

Discussions regarding outcome of investigation

[355] Mr Angelakos agreed that on 7 March 2018 he received a phone call from Ms Mulenga who arranged two further meetings in relation to the investigation of the complaints; the first meeting was to communicate the findings of Ms Mulenga’s investigation to Mr Angelakos and the second meeting was to inform Mr Angelakos of the outcome of the investigation. Mr Angelakos agreed that he received an email from Ms Mulenga following their phone call, which stated: 33

“Hi Peter

Thank you for speaking with me today. I’m writing to confirm the meetings we discussed.

Communication of findings

11am, Thursday 8 March 2018

I will contact you on your mobile and discuss the findings of the investigation

Outcome meeting

9am, Friday 9 March 2018 (Location to be confirmed)

Patrick and Alina will meet with you to discuss the outcomes/actions arising from the investigation findings.

Patrick will contact you to confirm the location of the meeting.

You are welcome to have a support person at both of these meetings.

Regards

Mo”

[356] Mr Angelakos agreed that on 8 March 2018 he received a phone call from Ms Mulenga who provided him with an overview of her findings following her investigation. Mr Angelakos recalled that a majority of the allegations against him were substantiated and ‘only a handful’ of allegations were not.

[357] Ms Mulenga stated that on 8 March 2018 she called Mr Angelakos to discuss her findings with him. Ms Mulenga started the conversation by noting that the purpose of the call was to communicate and discuss her schedule of findings. Mr Angelakos immediately expressed concern for his ongoing employment, but Ms Mulenga advised him that the outcomes would not form part of the discussion and would be reserved for a later meeting. Ms Mulenga provided Mr Angelakos with an overview of her findings starting at allegation 1.

[358] Ms Mulenga stated that Mr Angelakos became very angry, disagreeing with her findings and speaking over the top of her in an aggressive and demanding tone. Ms Mulenga stated that Mr Angelakos demanded to know the name of her manager and of the head of Coles’ Human Resources department, which she provided. Ms Mulenga stated that Mr Angelakos asked her if she had ever been to court as an investigator and told her that he would be taking action against her and her findings.

[359] Ms Mulenga stated that as she read through the findings for each allegation, Mr Angelakos would variously:

•  dispute each finding;

•  challenge the methodology of a "balance of probabilities";

•  claim that he had insufficient time to respond;

•  allege that Ms Mulenga had manipulated his responses;

•  claim that there were no witnesses present for the allegations substantiated on witness evidence;

•  allege that the witnesses had colluded against him;

•  call Ms Mulenga a "nit-picker";

•  tell Ms Mulenga that she had only focused on what she wanted to hear; and

•  generally suggest that Ms Mulenga was an incompetent investigator.

[360] Ms Mulenga stated that as Mr Angelakos became increasingly aggressive, she told him that she would be unable to continue the conversation if his behaviour continued. Ms Mulenga records that Mr Angelakos remained mostly silent as she went through the remainder of the findings.

[361] Ms Mulenga stated that towards the end of the phone call Mr Angelakos raised some mitigating factors. He stated that Mr Holloway had not previously raised any issues with him and that team members had never told him that his behaviour had made them uncomfortable. Ms Mulenga advised Mr Angelakos to raise these at the outcomes meeting, which was scheduled for 9 March 2018 with Mr Morton and Ms Bidewell. Ms Mulenga stated that she also sent Mr Angelakos an email summarising the investigation findings, on his request.

[362] At the conference, Mr Angelakos denied that he had become frustrated or angry. He stated that he was frustrated and upset with the whole process and was in disbelief.

[363] Mr Angelakos denied that he disagreed with Ms Mulenga’s findings and spoke over her in an aggressive, demanding tone. Mr Angelakos denied that he ‘demanded’ to know the name of Ms Mulenga’s manager and the head of human resources. Mr Angelakos stated that he asked Ms Mulenga for that information and agreed that Ms Mulenga gave him that information.

[364] Mr Angelakos denied that he continuously interjected Ms Mulenga, challenged the methodology that Ms Mulenga’s findings had been made on the balance of probabilities, called her a ‘nit-picker’, or that he said to Ms Mulenga that she was an incompetent investigator. Mr Angelakos could not recall saying to Ms Mulenga that she had manipulated his responses to the allegations.

[365] Mr Angelakos stated that at the time it had not been clear to him what Ms Mulenga had meant by the ‘balance of probabilities’, and that it had not been made clear to him until the commencement of the conference.

[366] Mr Angelakos recalled that Ms Mulenga acknowledged to him that it was a difficult conversation for him, but that it was important that he treat her with courtesy and respect. Mr Angelakos denied that he had been so aggressive during the phone call that Ms Mulenga was forced to tell him to treat her with courtesy and respect. Mr Angelakos could not recall whether Ms Mulenga said to him that she would be unable to continue the conversation if he continued with his behaviour. Mr Angelakos agreed that he had remained mostly silent while Ms Mulenga ran through the rest of her findings.

[367] Mr Angelakos agreed that after Ms Mulenga had provided her findings to him, he raised with her mitigating factors regarding the allegations against him. Mr Angelakos said to Ms Mulenga that Mr Holloway, who had been the store’s manager during the time of the majority of the conduct resulting in the allegations, had not raised any issues with Mr Angelakos, and further that none of the store’s team members had ever told him that his behaviour made them feel uncomfortable. 34

[368] Mr Angelakos agreed that following the phone call on 8 March 2018 he received two emails from Ms Mulenga. The first confirmed the time and date for Mr Angelakos’ ‘outcome meeting’ with Mr Morton and Ms Bidewell. The second confirmed Ms Mulenga’s findings in respect of each of the allegations made against Mr Angelakos.
[369] Mr Angelakos agreed that on 8 March 2018 he received a phone call from Mr Morton to confirm the arrangements for the ‘outcome meeting’ on 9 March 2018. Mr Angelakos agreed that Mr Morton told him that he could bring a support person to the meeting.

[370] On 8 March 2018 Ms Mulenga prepared a discussion record document for Mr Morton and Ms Bidewell to use in their meeting with Mr Angelakos on 9 March 2018 and emailed that document to Mr Morton and Ms Bidewell.

[371] On 9 March 2018 she received a call from Ms Bidewell to inform her that Mr Angelakos’ termination was being considered and that they were proceeding to show cause. Ms Mulenga stated that she received a further call from Ms Bidewell later that day informing her that Mr Angelakos’ employment had been terminated. Ms Mulenga stated that she then prepared a termination letter for Mr Angelakos and emailed it to Mr Morton and Ms Bidewell for them to provide to Mr Angelakos.

[372] In cross-examination, Ms Mulenga confirmed that it was the nature of the complaints, rather than the amount of complaints, that warranted them being referred to the Advisory Services Team. 35

[373] In cross-examination, Ms Mulenga said that witnesses were chosen based on whether their names had been mentioned by complainants and their relevance regarding the allegations. 36

[374] In cross-examination, Ms Mulenga confirmed that it was her decision to meet Mr Angelakos at Target Country, being a private location under the Wesfarmers group of companies, but away from Coles Moranbah. Ms Mulenga recalled that Mr Angelakos had said something to Ms Mulenga during their interview of 23 February 2018 about his concern that people at the Target Country store knew him. 37

[375] Ms Mulenga clarified in cross-examination, with reference to the report she prepared, 19 allegations had been substantially or partially substantiated on Mr Angelakos’ admissions and witness evidence, and a further 14 had been substantiated on the balance of probabilities. 38

[376] Mr Angelakos asked Ms Mulenga what she had meant by her statement that Mr Angelakos had been ‘hedging his bets’ during their discussion of his responses on the afternoon of 2 March 2018. Ms Mulenga and Mr Angelakos briefly discussed the matter as follows: 39

[377] In cross-examination, Mr Angelakos asked Ms Mulenga why sections of the discussion record document that she had pre-filled referred to possible disciplinary action against Mr Angelakos if no decision had yet been made to take any particular disciplinary action against Mr Angelakos. Specifically, Mr Angelakos asked why the following extract had been included in the discussion record document:

“Examples of actions which may be relevant include Peter must re-read the ‘What we expect of our team members and the consequences of inappropriate workplace behaviour’ sections of the code. Peter has to be retrained in the equal opportunity policy including any online training and ensure that these principles are adhered to.”

[378] Mr Angelakos suggested that the ordinary course would have been for an outcome following the investigation to be decided before an ‘action plan’ was confirmed and that the above extracts ‘sound[ed] like pre-empting something’. 40

[379] I directed Mr Angelakos’ attention to a sentence appearing above that extract, which stated, “Section 6 should be used where the outcome of the discussion is anything other than termination of employment. In cases of termination of employment this section is not applicable”. I asked Ms Mulenga what was the purpose of these extracts within the discussion record document. Ms Mulenga stated that the above extracts were to serve as ‘prompts’ to be considered by Mr Morton and Ms Bidewell in the event that a decision was made not to dismiss Mr Angelakos from his employment. 41

[380] Ms Mulenga stated during her evidence that she had not participated in any teleconference between Ms Bidewell, Mr Morton, Mr Inder and Ms Taylor. 42

Termination of employment

[381] Mr Angelakos agreed that on 9 March 2018 he met with Mr Morton and Ms Bidewell at the ‘Target Country’ store to discuss the outcomes regarding his employment following Ms Mulenga’s investigation of the allegations against him. Mr Angelakos agreed that he did not bring a support person to the meeting. At the start of the meeting he told Mr Morton and Ms Bidewell that he was uncomfortable conducting the meeting in the Target Country staffroom.

[382] Mr Angelakos agreed that Mr Morton read out to him the findings from Ms Mulenga’s investigation in respect of each allegation and asked for Mr Angelakos’ response.

[383] Mr Angelakos agreed that he challenged the findings presented to him and provided a further written response during the meeting of 9 March 2018. Mr Angelakos agreed that his written response was provided within a document described as ‘Discussion Record Inappropriate Behaviour’ that Mr Morton had brought to the meeting. Mr Angelakos’ written response stated: 43

“My first concern that I raised with Mo was “What triggered this chain of events that led to this point, without any prior knowledge?”

Why didn’t anybody speak to me and any of the issues raised previously?

Why is there a history of complaints and why was there an escalation after Andrew left? If these issues were raised at the time I would not have put myself in a position to repeat anything that would make my colleagues feel uncomfortable and would have modified my behaviour as required, and accordingly.

I’m also concerned with links between claimants and that some have left the business and yet choose to complain now.

In a remote area with a tight-knit population with so many people involved I find it hard to believe that confidentiality was thoroughly adhered to and cannot help but think some collusion was involved.

I’m deeply disappointed and distressed with this outcome.

I want to work with Coles and don’t want to lose my job.

This has taught me about the importance of respect and responsibility to the business any my colleagues.

I will never put myself or the business in this situation again.

To be aware and mindful of others.”

[384] Mr Angelakos stated that Mr Morton and Ms Bidewell left the room for no more than 30 minutes while he completed his written response.

[385] Mr Angelakos agreed that Mr Morton and Ms Bidewell returned to the room and read Mr Angelakos’ written response aloud to him and made sure that they understood Mr Angelakos’ intended responses.

[386] Mr Angelakos agreed that Mr Morton and Ms Bidewell then again left the room. Mr Angelakos stated that he thought that Mr Morton and Ms Bidewell had left the room to confer amongst themselves what action they were going to take against Mr Angelakos. Mr Angelakos recalled that Mr Morton and Ms Bidewell left the room for between 30–60 minutes.

[387] Mr Angelakos agreed that Mr Morton and Ms Bidewell returned to the room and informed him that they were considering terminating his employment and asked him whether there was anything further that he would like them to consider before deciding whether to terminate Mr Angelakos’ employment. Mr Angelakos thought that he could recall that he asked Mr Morton and Ms Bidewell to consider that he had a family.

[388] It was put to Mr Angelakos during the conference that Mr Morton and Ms Bidewell then left the room a third time to consider Mr Angelakos’ response that his family be taken into account. Mr Angelakos denied that Mr Morton and Ms Bidewell left the room a third time during the meeting.

[389] Regardless of whether Mr Morton and Ms Bidewell left the room a third time or not, Mr Angelakos agreed that Mr Morton and Ms Bidewell informed him that they had decided to end his employment with Coles. Mr Angelakos stated that he was in deep shock after being informed that he had been dismissed. Mr Angelakos recalled that he was asked to sign the ‘discussion record’ document, but refused to sign on the basis that he did not consider the contents of the document to be true.

[390] Following the meeting of 9 March 2018, Mr Morton sent to Mr Angelakos a letter confirming that Mr Angelakos had been dismissed from his employment with Coles, which stated: 44

“Dear Peter

This letter is to confirm your employment with Coles Supermarkets Australia Pty Ltd is summarily terminated effective 9 March 2018. Your final pay will be made to you as soon as practicable.

The reason for this termination is due to serious misconduct, as detailed to you in our discussion of 9 March 2018.

Yours sincerely,

Patrick Morton

Store Manager, Coles Moranbah”

Events following termination

[391] Mr Angelakos agreed that a few days after the meeting of 9 March 2018, he received a phone call from either Mr Morton or Ms Bidewell regarding the notice requirements for him to leave the rental property owned by Coles that he and his family rented in Moranbah. Mr Angelakos agreed that he was informed that the notice requirements still needed to be confirmed, but that an offer was put to him to pay for his relocation costs back to Mackay. Mr Angelakos agreed that he was given a few days to consider the offer.

[392] Mr Angelakos agreed that after a further few days he received another phone call from Mr Morton or Ms Bidewell regarding his relocation. Mr Angelakos agreed that he declined the offer to be relocated to Mackay and asked Mr Morton if Coles would pay for the family to be relocated to Sydney. He was initially informed that Coles would not pay for Mr Angelakos’ relocation to Sydney.

[393] Mr Angelakos agreed that after a further few days, he received a third phone call from either Mr Morton or Ms Bidewell, who informed him that Coles would agree to pay for his relocation to Sydney. Mr Angelakos declined the offer and informed either Mr Morton or Ms Bidewell that it was ‘too late’ as most of his possessions had already been removed from the property and his family had already moved back to Sydney.

[394] Mr Angelakos agreed that approximately two weeks after his dismissal he received a phone call from Mr Morton, who advised him that he would need to vacate Coles’ rental property within four weeks.

[395] It was put to Mr Angelakos that he had received a phone call from Ms Bidewell on 17 April 2018 regarding his vacation from the rental property, during which he had argued with Ms Bidewell and told her to “go and get stuffed”. Mr Angelakos recalled the phone call but denied that he had told Ms Bidewell to get stuffed.

[396] Mr Angelakos recalled that he had received a further phone call from Ms Bidewell on 23 April 2018 who attempted to arrange with him to return the keys to the rental property. It was put to Mr Angelakos that he had become angry towards Ms Bidewell and said to her words to the effect:

[397] Mr Angelakos denied that he had become angry with Ms Bidewell or that he had said to her “You have a small, tiny brain”, “You’re an idiot”, and “You should wake up to yourself”. Mr Angelakos recalled that he discussed his health and wellbeing with Ms Bidewell and as part of that discussions may have said words to the effect that Ms Bidewell had no compassion and that she should practise what she preaches. Mr Angelakos recalled that he had said words to the effect, “You’ll get yours when this goes to the Fair Work Commission”.

[398] Mr Angelakos agreed that shortly after his phone call with Ms Bidewell, he received a phone call from Mr Morton and arranged with him to return the keys to the rental property to Mr Morton on 24 April 2018, outside of the Moranbah police station. Mr Angelakos stated that he could leave the property’s keys in the letter box or the meter box, but that Mr Morton had insisted on meeting at the police station. It was put to Mr Angelakos that during that phone call, he became angry at Mr Morton and swore at him, saying, and “This is fucked. This is not fucking right”.

[399] Mr Angelakos agreed that he was frustrated with the situation in general and that Mr Morton wanted to meet him at the police station, which had made him feel like a criminal. Mr Angelakos denied that he became angry or swore at all during the phone call with Mr Morton. Mr Angelakos agreed that on 24 April 2018 he met with Mr Morton outside of the Moranbah police station to return the keys to the rental property.

[400] Mr Angelakos made further allegations at the conference that Coles had failed to reimburse him for costs that he had incurred in respect of bond for the rental property and an electricity bill that Mr Angelakos had not been reimbursed for in accordance with Coles policy.

Further evidence of Coles witnesses

Evidence of Ms Alannah Slater

[401] Ms Slater gave a witness statement in these proceedings, dated 3 August 2018. Ms Slater attested that in her capacity as lawyer for Lander & Rodgers she had been involved in the legal representation of Coles in the present matter. Ms Slater stated that she was primarily instructed in her work for Coles by Ms Leah Anderson, in-house counsel for the Coles.

[402] On 15 June 2018 Ms Anderson provided her with contact details for KL and Ms Laura Kanowski, whom had both worked with Mr Angelakos and had made complaints about him in relation his conduct in the workplace. Ms Slater claims that Ms Anderson communicated to her that according to information provided by Mr Morton, neither KL nor Ms Kanowski continued to work at Coles Moranbah and that Ms Kanowski had relocated to a different address.

[403] Ms Slater attempted to make contact with both KL and Ms Kanowski by telephone on numerous occasions. Ms Slater left voicemail messages for Ms Kanowski on three occasions, on 22 and 29 June 2018 and on 13 July 2018. Ms Kanowski did not respond to any of her messages. Copies of file notes prepared by Ms Slater regarding her attempts to contact Ms Kanowski were annexed to her statement. 45

[404] Ms Slater was able to contact KL by telephone on 16 June 2018, and inquired with KL as to whether she might be able to provide a witness statement in relation to her complaints against Mr Angelakos. KL informed her that she did not wish to relive her experiences with Mr Angelakos, having already done so during Ms Mulenga’s investigation. A contemporaneous file note of the discussion prepared by Ms Slater was annexed to her witness statement. 46

Evidence of Mr Patrick Morton

[405] Mr Patrick Morton gave a witness statement in these proceedings and was cross-examined. 47 Mr Morton has been employed as Store Manager at Coles Moranbah since 29 January 2018, and has been employed by Coles in total for approximately nine years. Mr Morton’s responsibilities as Store Manager included overseeing the financial and operational logistics of Coles Moranbah.

[406] Mr Morton stated that Mr Angelakos was provided with a copy of the Code and the EO Policy on two occasions during his employment; first on 1 August 2009 and again on 5 August 2016. Copies of those documents were annexed to Mr Morton’s witness statement. 48

[407] Mr Morton previously worked with Mr Angelakos at a Coles store in Mount Pleasant, Mackay. At that time he did not recall having any issues with Mr Angelakos, and he considered that he had a positive relationship with Mr Angelakos.

[408] Within a few days of commencing his position as Store Manager at Coles Moranbah he became aware of issues regarding Mr Angelakos’ behaviour in the workplace. Mr Morton stated that Ms Bainbridge informed him of several complaints about Mr Angelakos’ behaviour that had been made by several employees. Ms Bainbridge told him the employees were reluctant to put their complaints in writing but that several had requested roster changes to avoid working with him.

[409] Mr Morton first received a complaint about Mr Angelakos from CD on 29 January 2018, when CD approached Mr Morton and told him Mr Angelakos had made her feel uncomfortable at work. Mr Morton advised her to write her concerns down. Soon after he received seven more written complaints from other team members; Ms Kanowski, Ms Bainbridge, AB, EF, IJ, Mr Hassal and Mr Miels. 49

[410] He read the complaints and formed the view that Mr Angelakos was exhibiting a persistent pattern of behaviour towards female team members. Mr Morton also believed that Mr Angelakos may have seriously breached the Code and EO Policy. Mr Morton was concerned for the safety and wellbeing of his team members as well as the reputational risk the behaviour described could pose for Coles in a one-supermarket town.

[411] He informed Mr Shannon Inder, Regional Manager of Coles and Ms Bidewell of the complaints over the phone. Ms Bidewell directed him to send copies of the written complaints to her. It was his understanding that Ms Bidewell then sent the complaints to Ms Andrea Strain, Consultant in Coles’ HR Advisory Department.

[412] On 1 February 2018 he was received a phone call from Mr Inder, who informed him that the Coles HR Advisory Department believed the complaints to be very serious and that an investigation into the allegations was to be conducted while Mr Angelakos was suspended.

[413] Mr Morton was travelling to Mackay by car at the time of Mr Inder’s phone call, so he in turn phoned Mr Alastair Hardy, Dry Goods Manager at Coles Moranbah and asked Mr Hardy to take Mr Angelakos into Mr Morton’s office for a meeting with the door closed. When on the phone to Mr Hardy and Mr Angelakos, Mr Morton read over the phone a ‘suspension script’. Mr Angelakos asked for the reasons for his suspension to be repeated, which Mr Morton repeated. He told Mr Angelakos that they would contact him further to discuss the matter. Mr Morton was informed by Mr Hardy that Mr Angelakos then exited the store by the stairs next to his office.

[414] On 8 March 2018, and following Ms Mulenga’s investigation, he called Mr Angelakos to arrange an ‘outcome meeting’ with himself and Ms Bidewell. Mr Morton informed Mr Angelakos that he could bring a support person to the meeting. He elected against bringing a support person to the meeting.

[415] At the meeting Mr Morton read Ms Mulenga’s findings to Mr Agelakos and gave him a chance to respond. Mr Angelakos tried to challenge the findings and said that he felt like he had been colluded against. Mr Morton stated that Mr Angelakos became remorseful and said that no-one had ever made him aware that his behaviour was not acceptable. Mr Morton understood Mr Angelakos’ comments to indicate that he ‘knew all along that his behaviour was wrong and he was just waiting for someone to call him out on it’. 50

[416] Mr Morton stated that he and Ms Bidewell left the room to allow Mr Angelakos to make a written response to the allegations against him, within an allocated section of a ‘Discussion Record’ document that Mr Morton had brought to the meeting. Mr Morton read Mr Angelakos’ response back to him to ensure that he and Ms Bidewell understood the response, before breaking from the meeting again to consider the outcome.

[417] The hand-written note made by Mr Angelakos is as follows:

[418] Mr Morton stated that given the seriousness of the allegations and that much of the behaviour had been substantiated by the investigation, he and Ms Bidewell determined to inform Mr Angelakos that they were considering terminating his employment. Mr Morton said this was relayed to Mr Angelakos, who became remorseful and asked them to consider that he had a family.

[419] In the second break, he and Ms Bidewell called Mr Inder and Ms Megan Taylor, Queensland People and Culture Manager of Coles, to discuss Mr Angelakos’ response to the findings and the outcome. Mr Morton stated that they weighed the proposed termination against the financial impact on Mr Angelakos and his family and the severity of his misconduct and the importance of maintaining a safe work environment, and ultimately resolved to terminate Mr Angelakos’ employment.

[420] He and Ms Bidewell returned to the meeting and informed Mr Angelakos that a decision had been made to terminate his employment, and offered the support of the Employee Assistance Program. Mr Morton stated that Mr Angelakos asked some questions about his rental property which was owned by Coles. Mr Morton indicated that they did not know the answers to his questions, but told Mr Angelakos that they would find out. Mr Angelakos refused to sign the discussion record document at the end of the meeting.

[421] A few days after the 9 March 2018 meeting, Mr Morton called Mr Angelakos and informed him that he was awaiting confirmation of the notice requirements for Mr Angelakos’ leased rental property owned by Coles, but informed him that Coles would be willing to pay for his relocation to Mackay. Mr Angelakos became upset that he had nowhere to live.

[422] After a further few days he again called Mr Angelakos about his relocation, and was asked by Mr Angelakos if Coles would pay for him to be relocated to Sydney. Mr Morton advised that he would check about that and get back to him. Mr Morton discussed with Ms Bidewell the request, and was informed that Coles would not incur that cost. Mr Morton made a further phone call to Mr Angelakos and told him that Coles would not pay for his relocation to Sydney.

[423] About two weeks after the 9 March 2018 meeting, Ms Bidewell informed Mr Morton that Mr Angelakos would need to give four weeks’ notice to vacate his Coles-owned rental property. Mr Morton understood that Ms Bidewell emailed that information to Mr Angelakos. Mr Morton called Mr Angelakos to discuss the required notice period and attempted to send him a notice by registered post, which Mr Angelakos did not accept.

[424] A few days before the notice was due to expire, he called Mr Angelakos to arrange with him to return the keys to the rental property. Mr Morton stated that Mr Angelakos became very angry and swore at him, saying, “This is fucked. This is not fucking right”, and asked Mr Morton for more time in the property. Mr Morton confirmed with Ms Bidewell that Coles would not extend Mr Angelakos’ time in the property and called Mr Angelakos a second time, during which Mr Angelakos again became angry.

[425] On 24 April 2018 he met with Mr Angelakos outside of the Moranbah police station to receive the keys to the rental property from Mr Angelakos. Mr Morton did not have any further interaction with Mr Angelakos after 24 April 2018.

[426] Mr Morton stated his belief, as a result of his discussion with staff, that if Mr Angelakos were reinstated then some other staff members of Coles Moranbah would likely resign from their employment. Mr Morton stated that the Duty Manager is the most senior person in the store when Mr Morton is not working and he would have concerns leaving his staff under the supervision of Mr Angelakos in that role.

[427] In cross-examination, Mr Angelakos put to Mr Morton that he had expressed concerns to Mr Morton on 29 January 2018, Mr Morton’s first day at Coles Moranbah, regarding CD’s conduct towards him. Mr Morton recalled that Mr Angelakos had said to him that CD was not showing Mr Angelakos respect.

[428] Mr Angelakos put to Mr Morton that on 30 January 2018, he had again expressed concern to Mr Morton about CD’s conduct towards him, and Mr Morton had agreed to talk to CD and get back to Mr Angelakos about the matter by the end of the day. Mr Morton did not recall that second alleged conversation with Mr Angelakos, and denied that he would have said to Mr Angelakos that he would get back to him by the end of the day. 51

[429] Mr Angelakos put to Mr Morton that after the written complaints against Mr Angelakos had been received by 31 January 2018, he should have sought Mr Angelakos’ response to the allegations before escalating the matter. Mr Morton rejected that proposition. Mr Morton stated that he had understood the allegations to be very serious and had sought support on how they should be handled. 52

[430] In his statement, Mr Morton considered that there had been three breaks during the meeting of 9 March 2018. During the conference, Mr Morton stated that after he and Ms Bidewell returned from the first break, Mr Angelakos raised mitigating factors to them and wrote the four final sentences into his written response (as extracted above at [417]), after Mr Morton and Ms Bidewell had informed him that he was at risk of losing his job. Mr Morton stated that he and Ms Bidewell took a second and final break in the meeting after Mr Angelakos had written down his mitigating factors. 53

[431] In cross-examination, Mr Morton stated that the alternatives they considered to terminating Mr Angelakos were whether his behaviour could stop and whether they could relocate him. 54 However, Mr Morton conceded that at the time there was nothing he could think of that would have changed his mind about terminating Mr Angelakos, short of mental health issues or ‘issues at home’.55 Mr Morton also said that they would have considered Mr Angelakos’ behaviour differently had he shown insight into his behaviour and not denied all allegations throughout the investigation.56

Evidence of Ms Alina Bidewell

[432] Ms Alina Bidewell made a witness statement in these proceedings and was cross-examined. 57 Ms Bidewell has been employed by Coles as Regional People & Culture Manager for four and a half years. Her responsibilities include managing talent, providing advice and guidance in relation to employee performance management issues, assisting in disciplinary processes and attending discussion with employees in regard to disciplinary action.

[433] Mr Angelakos completed a range of training activities prior to starting in the role as Duty Manager at Coles Moranbah, as is required for leadership roles within Coles. Mr Angelakos was given feedback on his ability to influence and lead the team at night, because the Duty Manager is effectively the Store Manager when the Store Manager goes home at night. Ms Bidewell stated that Mr Angelakos completed his Duty Manager training on 1 August 2017.

[434] Ms Bidewell first became aware of issues with Mr Angelakos’ behaviour on 29 November 2017 when she received a call from Mr Andrew Holloway, then Store Manager at Coles Moranbah. Ms Bidewell stated that Mr Holloway had become aware of complaints from customers in relation to Mr Angelakos’ behaviour outside of work in and around his Coles-owned rental property. Ms Bidewell stated that Mr Holloway also informed her that he had heard rumours that some team members at Coles Moranbah felt uncomfortable in Mr Angelakos’ presence.

[435] Ms Bidewell said to Mr Holloway that he should inform Mr Angelakos of the concerns raised by customers and remind him that he was an ambassador for Coles in Moranbah. She advised Mr Holloway to offer Mr Angelakos support and suggested that he could say to him, “People in this town know you are a Coles leader and that you live in a Coles-owned house”.

[436] Ms Bidewell asked Mr Holloway about the specific behaviour of Mr Angelakos that other team members had complained about. Mr Holloway told her that he did not know any specific behaviour, and that at no time did Mr Holloway mention to her that he had received any written complaints about Mr Angelakos.

[437] On 31 January 2018, she and Mr Inder received a phone call from Mr Morton who made them aware of written and verbal complaints he had received in relation to Mr Angelakos. Mr Morton was told to gather statements from the complainants.

[438] On 1 February 2018 she received a phone call from Ms Bainbridge who informed her that some of the complaints included allegations of touching and standing too close to female staff members. Ms Bidewell asked Ms Bainbridge to forward the complaints to her and any supporting information. Ms Bidewell was alarmed at the content of the complaints, especially given that Mr Angelakos had recently completed the requisite training.

[439] Ms Bidewell immediately forwarded the complaints to Ms Andrea Strain and took steps to initiate an investigation of the complaints and to arrange for Mr Angelakos’ suspension. Ms Bidewell stated her belief that it was necessary to suspend Mr Angelakos due to safety concerns for the complainants, some of whom were under the age of 18. Ms Bidewell had no further involvement in the matter until she received the investigation findings on 7 March 2018.

[440] After reading the findings she concluded that Mr Angelakos’ conduct was ‘quite serious’. Ms Bidewell was concerned that Mr Angelakos may have exhibited a pattern of behaviour toward young female team members. She was particularly concerned about Mr Angelakos touching young team members and standing too close to them, and was concerned that Coles was not providing a safe work environment for junior or young employees in Moranbah.

[441] On 8 March 2018 she and Mr Morton received from Ms Mulenga a partially completed ‘discussion record’ document requiring further completion by Mr Morton. She called Mr Morton to discuss the investigation findings prior to the ‘outcome meeting’ with Mr Angelakos on 9 March 2018. Ms Bidewell travelled to Moranbah for the meeting with Mr Angelakos on 9 March 2018.

[442] On 9 March 2018 she and Mr Morton met with Mr Angelakos at the Target Country store in Moranbah. It was briefly discussed that Mr Angelakos had not brought a support person to the meeting, but Mr Angelakos ultimately agreed to continue. Mr Morton handed Mr Angelakos a copy of the discussion record documents and read the findings to him. Mr Angelakos asked twice whether he could respond to the investigation, and Ms Bidewell told him that the investigation was completed and that the meeting was his opportunity to further respond to what had been substantiated.

[443] She and Mr Morton left the room to give Mr Angelakos time to write a response in the discussion record. Ms Bidewell records that Mr Angelakos’ response was read back to him and he indicated that he agreed with it.

[444] The meeting broke again so that she could discuss the outcome with Mr Morton. Ms Bidewell recalled that one of Mr Angelakos’ responses had been to the effect of, ‘if I had been told my behaviour was inappropriate, I would have stopped’. Ms Bidewell stated her belief that that comment indicated that Mr Angelakos was no longer outright denying having behaved inappropriately and was trying to make other excuses. Ms Bidewell stated that both she and Mr Morton had been of the opinion that the severity of the allegations which had been substantiated against Mr Angelakos was not outweighed by his written responses.  58

[445] On returning to the meeting, Mr Angelakos was informed that consideration was being given to the termination of his employment. Mr Angelakos responded that he believed his colleagues had conspired against him and that he had not been given enough time to respond to the allegations. Mr Morton then asked Mr Angelakos to show cause as to why he should not be terminated, to which Mr Angelakos responded that he liked working for Coles and did not want to lose his job and that he would be more aware of how close to stand to people in future. Ms Bidewell stated that Mr Morton instructed Mr Angelakos to write a show cause response, which he did at the bottom of the discussion record document. These are the last four sentences in [417] above.

[446] Ms Bidewell stated that she and Mr Morton broke a third time from the meeting, during which they telephoned Mr Inder, and Ms Taylor to discuss the progress of the meeting and Mr Angelakos’ responses. 59 A decision was reached to terminate Mr Angelakos given his responses, serious behaviour, risk to team members, reputational risk to Coles Moranbah, loss of trust and considerable lack of insight into his own behaviour.

[447] Ms Bidewell stated that she and Mr Morton returned to the meeting and read Mr Angelakos’ final response, which did not outweigh the serious and repeated nature of Mr Angelakos’ behaviour. Ms Bidewell stated that Mr Morton advised Mr Angelakos that his employment with Coles would be terminated and offered him the assistance of Coles’ Employee Assistance Program. Ms Bidewell stated that Mr Angelakos was mostly silent, but asked some question about his Coles-owned rental property.

[448] Ms Bidewell called Mr Angelakos on several occasions following the 9 March 2018 meeting to discuss Mr Angelakos vacating his rental property. They discussed his possible relocation first to Mackay, which Mr Angelakos declined, and then to Sydney, which Coles initially declined. Ms Bidewell stated that Coles later offered to pay to relocate Mr Angelakos to Sydney, but he declined.

[449] Ms Bidewell discussed with Mr Angelakos the return of the rental property’s keys. Ms Bidewell stated that Mr Angelakos became angry with her over several phone calls regarding the return of the keys and said to her, “You have a small, tiny brain”, “You should practise what you preach”, “You’re an idiot”, and “You should wake up to yourself”. Ms Bidewell understood Mr Angelakos met Mr Morton outside of the Moranbah police station to return the keys.

[450] Mr Holloway still works for Coles. Ms Bidewell met with Mr Holloway on 16 March 2018 to issue him with a first and final warning for failing to take reasonable management action in response to the complaints about Mr Angelakos.

[451] Ms Bidewell stated that it would be ‘untenable’ to return Mr Angelakos to another Coles store for the same reasons he was dismissed. 60

[452] In cross-examination, Ms Bidewell confirmed that she had received written complaints on 1 February 2018 from Mr Morton 61 and she acted immediately on receiving those complaints to suspend Mr Angelakos on 2 February 2018 and commence an investigation.62

[453] Ms Bidewell acknowledged at the conference that she could not precisely recall whether there had been two or three breaks during the meeting of 9 March 2018. Ms Bidewell agreed that the first break had occurred after Mr Morton had reiterated the investigation’s findings to Mr Angelakos and sought his written response. Ms Bidewell conceded that there may have only been two breaks during the meeting and Mr Angelakos may have written down his show cause response after being informed that his termination was being considered while Ms Bidewell and Mr Morton remained in the room. 63

[454] Ms Bidewell was cross-examined as to the reasons for the decision to terminate Mr Angelakos and the deliberations of Mr Inder, Ms Taylor, Mr Morton and herself in forming that view. Ms Bidewell confirmed that she viewed Mr Angelakos’ conduct as sufficiently serious to warrant termination in circumstances where there were a large number of serious allegations against him, he was in a leadership position and had the care and responsibility of his team members while working in the store, which included some minors. 64 Ms Bidewell also cited Mr Angelakos’ denial of all allegations up until the time he was told he may be dismissed as a reason that they considered the relationship of trust and confidence had been broken.65

[455] Ms Bidewell stated that consideration had been given to issuing Mr Angelakos with a first and final warning in respect of his conduct, but that it had been determined that there was no way that Coles could continue to employ Mr Angelakos in Moranbah given the large number of team members affected and the town’s small population. 66

[456] Ms Bidewell stated that she had been aware that Mr Angelakos had children, but had not been aware that he had primary-school aged children. Ms Bidewell stated that she and the other decision-makers had understood that Mr Angelakos would need to relocate to Mackay ‘at least’ after his termination. Ms Bidewell stated, “We probably didn’t take into consideration his children, but we did consider that [Mr Angelakos] would need to relocate back to Mackay”. 67

[457] I asked Ms Bidewell whether, after the findings had been brought to Mr Angelakos’ attention, could he had been given an opportunity to improve his conduct? Ms Bidewell stated that the decision to terminate Mr Angelakos had been made on the consideration that the ‘trust and confidence was already too far broken’ to provide Mr Angelakos with an opportunity to improve. 68

[458] I asked Ms Bidewell whether there was any response that Mr Angelakos could have made at the meeting of 9 March 2018 that could have resulted in an outcome other than his dismissal. Ms Bidewell stated that she had considered that Mr Angelakos denied some of the allegations against him up until he was informed that his termination was being considered, and had then changed his response to seemingly acknowledge that he had engaged in conduct that he had previously denied engaging in. 69

[459] In re-examination, Ms Bidewell provided further that Mr Inder and Mr Morton had ‘heavy weight’ in the decision-making process as it was part of the process and policy that Mr Inder’s approval as the Regional Manager was needed for such decisions. Ms Bidewell considered that the decision to terminate Mr Angelakos had been made jointly by Mr Morton and Mr Inder. 70

[460] Ms Bidewell was asked questions in relation to her discussions with Mr Angelakos regarding his possible relocation to Mackay or Sydney and the return of the keys to the rental property. Ms Bidewell referred to her own contemporaneous notes of her further discussions regarding these issues in giving her evidence.

[461] On 12 April 2018 she was informed by Mr Morton that he had discussed with Mr Angelakos the return of the rental property’s keys, and Mr Angelakos had indicated to Mr Morton that he would not vacate the premises by the expiry of the notice period on 23 April 2018.

[462] On 17 April 2018 she called Mr Angelakos to discuss his vacation from the property. Ms Bidewell recalled that Mr Angelakos had argued with her about whether he needed to vacate the property by 23 April 2018 or 24 April 2018, and had told Ms Bidewell ‘to go and get stuffed’. Ms Bidewell stated that she had agreed that Mr Angelakos could vacate the property and return the keys on 24 April 2018.

Evidence of IJ

[463] IJ gave a witness statement in respect of these proceedings and was cross-examined. 71 IJ commenced employment at Coles Moranbah in April 2017 as a Team Member working predominately in the Dairy, Grocery and Point of Sale Departments. She first met Mr Angelakos when he commenced working at Coles Moranbah in May 2017. She is a woman is aged in her mid-20’s.

[464] IJ worked with Mr Angelakos ‘quite a lot’, and she considered that they had an amicable working relationship. She didn’t have a problem working with him ‘at all’. 72 She considered that when he first started working at Coles Moranbah, he used to stand ‘too close’ to her when he spoke to her. By ‘too close’, she means within 10 centimetres of her face. She asked him not to stand so close and he complied with her request.

[465] IJ regularly observed Mr Angelakos standing ‘very close’ to young female team members under the age of 30 when he talked to them. She felt uncomfortable observing Mr Angelakos touch those team members’ shoulders or ‘rub their backs’ as he talked to them.

[466] It is her evidence that CD spoke to her about how uncomfortable Mr Angelakos’ behaviour made CD feel. In the first hour of CD’s first shift, IJ observed Mr Angelakos approach CD at least six times and stand very close to CD when he talked to her. Her evidence is that Mr Angelakos would usually take steps to ensure new staff members were settling in, but she considered the amount of times he approached CD was excessive.

[467] IJ stated that she noticed Mr Angelakos approach CD while she was not looking, stand very close to her and place his hand on her shoulder and begin to rub it. IJ considered that CD’s body language during these encounters was very standoffish and closed. IJ and CD agreed that CD needed to confront Mr Angelakos about his behaviour, as IJ had done so and it had worked for her.

[468] IJ did not report Mr Angelakos’ conduct towards CD as she did not directly witness much of the behaviour CD complained about. It was her view that according to the Code of Conduct, it was necessary for CD to come forward and report the behaviour. In cross-examination, IJ stated that she did not feel comfortable reporting the conduct given past personal experiences. 73

[469] IJ stated that she would feel uncomfortable if Mr Angelakos were reinstated.

Evidence of Ms Leanne van Eykelenborg

[470] Ms Leanne van Eykelenborg gave a witness statement in these proceedings and was cross-examined. 74 Ms van Eykelenborg commenced employment at Coles Moranbah on 5 December 2017. She predominately works night shifts in the Dairy department. Ms Van Eykelenborg first met Mr Angelakos on her second day of work at Coles Moranbah. She is aged 40.

[471] Ms Van Eykelenborg worked with Mr Angelakos ‘a lot’ and considered that they had a reasonable working relationship. She considered that at times Mr Angelakos was friendly towards her, but at other times could be rude and ‘really tried to assert his authority’. Certain events occurred which prompted her to lose respect for Mr Angelakos. 75

[472] Ms van Eykelenborg regularly observed Mr Angelakos assisting young team members and customers around the store. She often observed Mr Angelakos approach CD, stand close to her and talk to her. In cross-examination, Ms van Eykelenborg suggested that Mr Angelakos would ‘seem to pick and choose’ whom he would help around the store, preferring younger female customers. 76

[473] On 28 January 2018 she witnessed Mr Angelakos yell at CD in an intimidating and threatening manner. She and CD were in the back dock disposing of rubbish at the time when Mr Angelakos yelled CD’s name ‘about five times in a strong, demanding tone’. Ms Van Eykelenborg stated that she heard Mr Angelakos yell, “[CD]! Come here I need to speak to you, come here”, and CD replied, “I’m doing my job. I will be there in a minute. I just have to put the rubbish away”.

[474] Ms van Eykelenborg told CD, “We’re at the end of our shift. We’re doing the rubbish. He can wait two minutes”. They finished disposing of the rubbish and CD then followed Mr Angelakos into the cold room, at his request. When CD re-emerged from the cold room, CD ‘seemed really upset’. CD informed her she was going to report Mr Angelakos ‘for all his behaviour that made CD feel uncomfortable at work’. Ms van Eykelenborg supported CD in doing this.

[475] On 29 January 2018 she found the RF gun that CD had misplaced the day before. It is her evidence that Mr Angelakos approached her and asked, “Can you apologise to [CD] for me for yelling at her, blaming her for the RF gun and all that stuff?” Ms van Eykelenborg told Mr Angelakos that he needed to be the one to apologise to CD.

[476] In cross-examination, Ms van Eykelenborg stated that she did not feel the need to file a complaint about Mr Angelakos because she is ‘a little bit tougher than the average woman’, and has ‘worked with dominant males before’. 77 However, Ms van Eykelenborg stated that she filed her complaint once CD had filed hers, as CD had ‘asked [her] to bear witness to it’.78

[477] Ms van Eykelenborg stated that on a date she could not recall during the period of time that Mr Angelakos was suspended from his employment, Mr Angelakos and his wife and children had approached her while she was in her horse paddock and had waved to her. She stated that she was uncomfortable with Mr Angelakos’ presence at her paddock and had ridden off pretending not to see him. 79

Evidence of Ms Linda Daniels

[478] Ms Linda Daniels made a witness statement in these proceedings and was cross-examined. 80 She has been employed at Coles Moranbah for nine years, and was promoted to the role of Duty Manager in June 2018; the role in which Mr Angelakos was employed. Prior to her current position Ms Daniels held roles as a Team Member, Deli Manager and Customer Service Manager.

[479] She first met Mr Angelakos when he commenced work at Coles Moranbah in May 2017. She described her working relationship with Mr Angelakos as ‘difficult’ most of the time. 81

[480] Ms Daniels regularly observed Mr Angelakos talking to junior female team members and standing very close to them. Ms Daniels stated that by ‘junior’ she meant under the age of 18 and by ‘very close’ she meant approximately 20 centimetres from their faces. At the conference, Ms Daniels stated that she had witnessed Mr Angelakos approach other team members and say, “Hey, how are you going?”, and sometimes he would get underneath their ‘neck’ and say, “Hey, how are you going?”. 82

[481] Ms Daniels observed Mr Angelakos often talking to and standing very close to AB and CD. Ms Daniels formed the view that when Mr Angelakos stood close to AB, AB would cringe and move away from him. She observed that when Mr Angelakos stood close to CD, CD’s body language was ‘standoffish’. She said that it was obvious to her that CD disliked Mr Angelakos being within her personal space. Ms Daniels never observed Mr Angelakos standing particularly close to older female team members.

[482] During the conference, Ms Daniels gave evidence about the space within the service kiosk. She acknowledged that on occasion she had had to ‘shuffle herself around’ and had come into contact with other team members while in the kiosk, due to the restricted space within the kiosk. In respect of the allegation that Mr Angelakos had touched AB’s back while in the kiosk, Ms Daniels noted that AB would not have been allowed behind the cigarette counter due to her being under the age of 18. In the case of someone standing at one of the registers at the side of the kiosk, it’s Ms Daniels’ view that there would have been plenty of space for a person to move from the cigarette counter and past the register to exit the kiosk without needing to touch the person standing at the register. 83

[483] When asked in cross-examination why she did not bring Mr Angelakos’ behaviour towards AB and CD to the attention of senior management, Ms Daniels stated that she felt that nothing would be done about it at the senior management level, and in particular, by Mr Holloway. 84 Ms Daniels also stated that although she had thought that AB didn’t like Mr Angelakos, she did not think there had been any reason to escalate the matter. Ms Daniels stated, “Peter, your personality is very strong, and a lot of people didn’t like you, but we can’t all go running to you every five minutes and say, “I don’t like you”.  Like, team members did.  There were a lot of team members that didn’t like you”.85

[484] On one occasion in December 2017 she found Ms Kanowski ‘visibly upset’ and ‘shaking like a leaf’ in the assisted checkout area following an altercation with Mr Angelakos. Ms Daniels confronted Mr Angelakos about the incident with Ms Kanowski. Ms Kanowski and Ms Asa Wiggins, another team member that had witnesses the incident, wrote down their recollections of the altercation and provided them to Ms Daniels. She submitted the written records of the incident to Mr Holloway, then Store Manager, but she was unsure whether Mr Holloway took any action.

[485] In cross-examination, Ms Daniels stated that she had spoken to Ms Bainbridge about the incident, prior to providing the written records to Mr Holloway the next morning. Ms Daniels noted that Ms Kanowski is Ms Bainbridge’s daughter. 86 Mr Angelakos asked Ms Daniels whether she had followed-up with Mr Holloway or Ms Bainbridge regarding the incident in December 2017. Ms Daniels stated that she had understood that the matter was being dealt with and had not followed-up with Mr Holloway or Ms Bainbridge on that basis.

[486] During the conference Ms Daniels stated that many team members were afraid of Mr Angelakos’ aggressiveness and the repercussions that he would sometimes threaten team members with. Ms Daniels recalled an incident that she had not put in her statement, where Mr Angelakos had directed a team member with autism who ordinarily worked in the fruit and vegetable department to work on the store’s registers, which had caused the team member to become very stressed. Ms Daniels stated that she and Mr Angelakos had a heated conversation about attempting to train the team member on the registers. Ms Daniels stated that Mr Angelakos had threatened to her that he would go to Mr Holloway about the issue, and Ms Daniels responded, “Don’t worry, I’ve already been speaking to Andrew about that”.

[487] Mr Angelakos did recall the incident and said that Ms Daniels had been upset, and she had heated words with him about the incident. Mr Angelakos stated that he had been aware of the team member’s condition and capabilities, and he had thought that the team member had performed well on the registers. 87

[488] Ms Daniels stated that she would be ‘very disappointed’ if Mr Angelakos were reinstated to his position and that based on discussions she had had with other team members at Coles Moranbah, some team members would leave employment at Coles Moranbah if Mr Angelakos were reinstated.

Evidence of Mr Anthony Wood

[489] Mr Anthony Wood gave a witness statement in these proceedings and was cross-examined. 88 He has been employed at Coles Moranbah since December 2017, initially as a Dairy Assistant and promoted to Dairy in Charge around May 2018. Mr Wood first met Mr Angelakos in December 2017 when Mr Wood started working at Coles Moranbah.

[490] Mr Angelakos helped him with his duties from time to time, but they otherwise had little to do with one another at work. Mr Wood described their relationship as amicable and professional’, but stated that he had been made aware by some other team members, such as IJ, Ms Powyre, Ms van Eykelenborg and Mr Wiggins, that they found him unpleasant to work with. 89 Mr Wood stated that he had ‘heard stories’ of Mr Angelakos yelling at team members, that he had threatened Ms Kanowski, and that he used to bother CD.

[491] Mr Wood stated that around 7:00pm on 24 January 2018, he overheard a conversation between Mr Angelakos and CD from an adjacent aisle of the store. Mr Wood did not overhear anything of particular note during the conversation. After Mr Angelakos left the vicinity, CD was uncharacteristically quiet. He asked her if she was OK, and she replied that she was.

[492] Mr Wood’s evidence is that Mr Angelakos approached CD again shortly after. He heard him say that he wanted CD to add him on Facebook. He overheard CD respond that she does not have Facebook, which prompted Mr Angelakos to joke about letting CD pay him to add CD on Facebook or Twitter.

[493] Mr Wood stated that throughout the encounter, it seemed obvious to him that CD was not enjoying the conversation and it looked as though CD was trying to shut it down. CD looked ‘creeped out and uncomfortable’. He observed that Mr Angelakos had been standing about 50 centimetres from CD throughout the encounter. He again asked CD if she was OK after the encounter, and said to CD, “If it gets out of hand, you should talk to Jo about it”. Mr Wood was concerned CD may have been harassed by Mr Angelakos.

[494] Mr Angelakos never asked to connect with Mr Wood on any form of social media. He was not aware of Mr Angelakos having asked any other team member at Coles Moranbah to connect with him on social media.

[495] In cross-examination, Mr Wood stated that after CD’s discussion with Mr Angelakos on 24 January 2018, CD confirmed to Mr Wood that she did have a Facebook account, but had said that they she did not to Mr Angelakos. 90

Evidence of Ms Trudy Maher

[496] Ms Trudy Maher gave a witness statement in these proceedings and was cross-examined. 91 She has been employed at Coles Moranbah for approximately three years, and she first met Mr Angelakos when he commenced at Coles Moranbah in May 2017. She has grown up children.

[497] Ms Maher worked a lot with Mr Angelakos while he was employed at Coles Moranbah. She considers that initially she and Mr Angelakos had an amicable working relationship, but she also formed the impression from the outset that he did not have respect for women.

[498] In cross-examination, Ms Maher stated that in her opinion Mr Angelakos ‘spent really, really too much time talking to the junior girls’ and if a female asked him to do something, he either wouldn't do it, or take his time doing it. 92

[499] Mr Angelakos had been responsible as the Duty Manager to respond to ‘priority service calls’ made by team members requiring assistance. She considered that Mr Angelakos disliked it when team members called priorities, and often became unnecessarily angry with team members who made priority calls while he was working.

[500] Ms Maher stated that on a date in October 2017, she made a priority service call to Mr Angelakos in respect of a customer inquiry at the service kiosk. She made the call four times and Mr Angelakos did not respond. Mr Angelakos later came up to the service kiosk and did not answer her when she asked him if he heard the calls.

[501] The following day Ms Maher walked past Mr Angelakos as she was returning from a break and he said to her, “I don’t appreciate you dobbing me in to my supervisor for not coming up to the kiosk yesterday”. Ms Maher responded that she did not speak to anyone about the incident and told him, “Get your facts right”. Mr Angelakos replied in a threatening tone, “You know I can make your life hard”.

[502] Ms Maher stated that after this incident, she felt scared to be at work, and attempted to limit her interactions with Mr Angelakos. She did not tell her managers about the incident or the way she felt because she really needed her job and was concerned about repercussions.

[503] In cross-examination, Ms Maher stated that on a date that she could not recall she reported to Mr Holloway that she was ‘becoming uneasy’ with Mr Angelakos’ behaviour on the night shift. Ms Maher stated that Mr Holloway had said to her that that she could deal with it herself and she was a ‘big girl’. 93

[504] Ms Maher stated that at times she overheard Mr Angelakos asking junior female team members if they had boyfriends, and also commenting on their appearance. On a date she could not recall, Mr Angelakos said to EF, “You look very pretty, are you going out tonight?” She observed that EF appeared shocked and very uncomfortable.

[505] Ms Maher also recalled that in late January 2018, AB approached her and told her that Mr Angelakos had touched AB’s back. She observed that AB was visibly upset by this, and Ms Maher reported the incident to Mr Morton immediately, as she could not find her line manager, Ms Daniels, at the time. 94

[506] Ms Maher stated that she does not consider she could work with Mr Angelakos again and would resign immediately if he were reinstated.

Evidence of GH

[507] GH gave a witness statement in these proceedings and was cross-examined. 95 She has been employed at Coles Moranbah since approximately July 2017 and is a high school student. She first met Mr Angelakos when she commenced at Coles Moranbah.

[508] Her evidence is that on average, she worked with Mr Angelakos once or twice per week. She considered that she had a reasonable working relationship with Mr Angelakos. From time-to-time she and Mr Angelakos joked around at work. However when Mr Angelakos was in a bad mood their interactions were ‘totally different’. She felt that Mr Angelakos often became unnecessarily angry with her at work.

[509] On a date she could not recall, she had been cleaning the scanners in the assisted checkout area, when Mr Angelakos approached her and ‘completely flew off the handle’. He was standing ‘just centimetres’ from her face.

[510] Mr Angelakos said in a loud, angry tone that she needed to be helping customers, not cleaning the scanners, and she had not been doing her job properly. GH stated that at the time, customers in the assisted checkout area had been serving themselves without issue. She said that the incident upset her and she told her mother what had happened when she arrived home for the night. Her mother had wanted to come into the store to speak to Mr Angelakos, but GH had asked her not to. GH stated in cross-examination that she felt she could not discuss her concerns with Mr Angelakos about the way he had spoken to her because she felt uncomfortable talking to him. 96

[511] GH recalled thinking that Mr Angelakos should be given the benefit of the doubt because ‘everyone has a bad day’, however, she observed that Mr Angelakos went on to have a number of other bad days. Her evidence is that Mr Angelakos would often yell at her and other junior service team members, including in front of customers. She felt embarrassed and upset when he did this.

[512] She knew that Mr Angelakos disliked it when team members made ‘priority ‘ calls and on more than one occasion Mr Angelakos told her not to call a priority while he was working, no matter how busy the store was.
[513] GH stated that on a date she could not recall, she witnessed EF make two priority calls during one shift. Mr Angelakos responded to the second call. After Mr Angelakos finished serving a few customers, GH saw Mr Angelakos approach EF and stand within centimetres of EF’s face, lean in and yell at her in front of the remaining customers. GH stated that Mr Angelakos had appeared very angry and had obviously made the customers feel uncomfortable. GH approached EF after the incident and EF informed her that the incident had been about the priority call. GH was reluctant to report the incident and did not do so because GH feared repercussions from making a report against Mr Angelakos; a manager of the store.

[514] GH stated that Mr Angelakos spent a large portion of his time at work speaking with junior staff members, and Mr Angelakos often showed affection to the junior members, particular EF, AB and GH, often touching them on the shoulder whilst speaking with them or walking past them. GH stated that she specifically saw Mr Angelakos touch AB on the shoulder at least once, though admitted in cross-examination it may have been EF. 97

[515] GH stated that on a date she could not recall, Mr Angelakos walked past her at work and said words to the effect, “Hey beautiful”. She felt extremely uncomfortable that Mr Angelakos had commented on her appearance. She did not report the matter to management at the time as some female staff members of Coles Moranbah had called her ‘beautiful’, and she was initially unsure whether Mr Angelakos’ comment had been inappropriate. She was unsure whether her complaint would be taken seriously.

[516] GH stated that she felt more uncomfortable about Mr Angelakos’ statement of “Hey beautiful” after EF told her that Mr Angelakos had made similar comments to EF about EF’s appearance, which had made EF feel uncomfortable. GH stated that, having never worked in any other employment position before, she was not certain that Mr Angelakos’ behaviour was inappropriate for a workplace. After speaking with EF and management at Coles Moranbah, she now considered that Mr Angelakos’ behaviour was completely unacceptable and that she was not wrong to have felt uncomfortable about it.

[517] In cross-examination, GH repeated that she did not make complaints about Mr Angelakos contemporaneously because she was worried that the complaints would be ignored and that the behaviour would get worse. She admitted in cross-examination that she only raised complaints against Mr Angelakos when she was approached by one of the managers at Coles Moranbah. She was unsure who had approached her. GH admitted in cross-examination that she likely would not have made complaints about Mr Angelakos had it not been raised with her by one of the managers. 98

[518] GH stated that she could not work with Mr Angelakos again after being involved in these proceedings, and following his behaviour towards her and other junior staff during his employment. She stated that she would resign immediately if he were reinstated.

Evidence of Ms Desley Channells

[519] Ms Desley Channells gave a statement in these proceedings and was cross-examined. 99 Ms Channells is the Bakery Manager at Coles Moranbah and has held that position for around a year, having worked at several different Coles stores for the last five and a half years. Ms Channells met Mr Angelakos during her first week working at Coles Moranbah.

[520] Ms Channells often worked similar hours to those of Mr Angelakos. She considered they had an amicable, professional relationship and got along well. She did, however, witness Mr Angelakos speaking and acting inappropriately towards other employees on several occasions.

[521] On a date she could not recall she witnessed Mr Angelakos yelling at Ms Marylyn Jones, a bakery employee supervised by Ms Channells. She witnessed Mr Angelakos’ outburst from a close proximity and recalled seeing a number of nearby customers react to the incident.

[522] In cross-examination, Ms Channells admitted that Mr Angelakos was yelling at Ms Jones about a safety issue, specifically her standing on the dairy ‘bumper bar’ while re-stocking milk, and not using a safety step as was standard practice. Ms Channells stated that Mr Angelakos yelled at Ms Jones from approximately 10 metres away and said words to the effect, “Marilyn, get down off of there. Get down off there now”. 100

[523] Ms Channells approached Mr Angelakos after the incident and told him that she did not believe it was appropriate to speak to other staff members in the manner in which he had spoken to Ms Jones. Ms Channells and Mr Angelakos then approached Ms Jones together, and Ms Channells asked Ms Jones there was anything she would like to say to Mr Angelakos. Ms Jones said, “I did not like the way you spoke to me”. Ms Channells recalled that Mr Angelakos apologised to Ms Jones, and Ms Channells told Mr Angelakos to always speak nicely to team members.

[524] Ms Channells stated that she often offered informal guidance to Mr Angelakos on how to conduct himself in relation to other employees he supervised. Her evidence is that she was asked by Mr Holloway to provide coaching to Mr Angelakos in this way whenever she could.

[525] She often witnessed Mr Angelakos standing very close to other staff and often leaned over them as he spoke. Ms Channells stated that by ‘very close’ she meant approximately 15 centimetres from an employees’ face.

[526] On a date she could not recall she witnessed Mr Angelakos approach CD from behind, lean over CD and place his hand on CD’s back as he spoke to her. Ms Channells stated that Mr Angelakos’ head was right next to CD’s throughout their exchange, and CD looked visibly uncomfortable with Mr Angelakos being in such close proximity.

[527] Ms Channells admitted in cross-examination that she never actually saw Mr Angelakos touch CD’s back, but it appeared he did so from where she was viewing their interaction. It was put to Ms Channells in cross-examination that CD never claimed Mr Angelakos touched her, and what she had witnessed may have been Mr Angelakos placing his hand close to CD’s back without actually touching it. In response, Ms Channells accepted that Mr Angelakos may have only placed his hand near to, but not upon CD’s back, and admitted that she never actually saw Mr Angelakos touch CD. 101

[528] Ms Channells stated that following the incident with CD, she approached Mr Angelakos and reminded him about his responsibility to respect employee’s personal space. Mr Angelakos told her that his physical closeness with others was part of his national culture and because he was a friendly guy.

[529] Ms Channells stated that on date she could not recall in January 2018, CD spoke with her about Ms Angelakos’ behaviour towards CD in the workplace. CD told her that she did not feel comfortable at work because of Mr Angelakos’ actions, and CD felt like he was always watching her. Ms Channells advised CD to be upfront with Mr Angelakos and to tell him directly that his behaviour was making CD feel uncomfortable.

[530] On 29 January 2018, a few days after speaking to CD, she overheard a conversation between CD and Mr Angelakos while CD and Mr Angelakos were in the cold room. The only statement she heard clearly was CD telling Mr Angelakos, “I would prefer it if you do not speak to me unless there is a third party present”.

[531] In cross-examination, Ms Channells agreed that she said to Mr Angelakos words to the effect, “Oh that was a bit harsh, mate”, to which Mr Angelakos responded, “Yes, what do I do about it? I might document it”. 102 Ms Channells admitted when questioned that she did not know what Mr Angelakos had said, if anything, to make CD upset, but noted that she was generally aware at that time that CD felt uncomfortable around Mr Angelakos.103

[532] Ms Channells stated that after speaking with other employees at Coles Moranbah, it was her understanding that some team members would resign if Mr Angelakos was reinstated to his previous position.

Evidence of Ms Yueh Ching (Fiona) Lin

[533] Ms Yueh Ching (Fiona) Lin gave a witness statement in these proceedings and was cross-examined. 104 Ms Lin has worked as a Service Team Supervisor at Coles Moranbah for nearly four years. She met Mr Angelakos when he commenced work at Coles Moranbah in May 2017. She often worked at the same time as Mr Angelakos, but had very few interactions with him in the workplace.

[534] She never had any problems with Mr Angelakos and made no complaints to anyone about his behaviour. However, Ms Lin was aware that other employees at Coles Moranbah had issues with Mr Angelakos’ behaviour.

[535] Ms Lin stated that on a date she could not recall, KL said to her in relation to Mr Angelakos, “He makes me feel uncomfortable”, and “He makes me not want to come to work at all”. KL informed her that Mr Angelakos had, on occasion, stood uncomfortably close when he spoke to KL and had made comments to her that made her feel uncomfortable. KL did not tell her what Mr Angelakos’ comments had been.

[536] In cross-examination, Ms Lin recalled that the conversation with KL occurred after KL had resigned from her position at Coles Moranbah, while KL had been shopping and Ms Lin was serving KL at one of the registers. Ms Lin asked KL why she resigned, to which KL informed her about Mr Angelakos’ behaviour. 105

[537] In cross-examination, Ms Lin stated that she had also been aware that EF had had problems with Mr Angelakos. Ms Lin had witnessed Mr Angelakos tell EF to return to EF’s register while EF was restocking drinks fridges. EF had approached Ms Lin and told her that Mr Angelakos made her feel uncomfortable, and EF felt that she always had trouble with Mr Angelakos. Ms Lin stated that she had also noticed EF walk around the store doing nothing, even if the store’s registers were busy, and had agreed with Mr Angelakos telling EF to return to the registers. 106

[538] In cross-examination, Ms Lin stated that she could not recall any other specific team members that had said to her that they had had problems with Mr Angelakos. Ms Lin recalled that some of her co-workers had approached her and tried to tell her about Mr Angelakos, but she had told them that she didn’t want to get involved and didn’t want to know what had happened between them and Mr Angelakos. Ms Lin stated that she had told this to Ms Mulenga when she was interviewed as part of Ms Mulenga’s investigation.

Legislation

[539] Section 385 of the Act defines the meaning of “unfair dismissal” and states as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

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

[540] Section 387 of the Act sets out the criteria that must be taken into account when considering whether a dismissal was harsh, unjust or unreasonable, and states:

“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.”

[541] The type of conduct that may fall within the words ‘harsh, unjust or unreasonable’ was outlined by McHugh and Gummow JJ in an oft-cited extract from Byrne v Australian Airlines Ltd 107 as follows:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[542] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter. 108

Mr Angelakos’ submissions

[543] Mr Angelakos’ primary submissions took the form of his responses to the allegations put to him by Coles during Coles’ investigation of the allegations made against him. Mr Angelakos’ submissions prior to the conference did not address the criteria of s.387 of the Act at all. Rather, Mr Angelakos submissions were more akin to a statement in reply than submissions. Mr Angelakos did not file any submissions in reply to the material filed by Coles.

[544] Following the conference Mr Angelakos filed closing submissions, but they did not specifically address the criteria set out in s.387 of the Act. I have taken into account that Mr Angelakos was self-represented in this matter in considering his written submissions.

[545] Mr Angelakos submitted that he has suffered significant financial loss as a consequence of his summary termination, which forced him to relocate back to Sydney at short notice from regional Queensland. Mr Angelakos rejected that Coles’ offer to relocate him to Mackay was reasonable in the circumstances as he had no reason to move to Mackay. Further, Mr Angelakos claimed that Coles’ offer to relocate him to Sydney came after he had already sold much of his household furniture and personal effects.

[546] Mr Angelakos submitted that he had maintained continuity of service with Coles between resigning from Coles in despite having resigned from Hurstville Station Coles on 15 May 2016. Mr Angelakos submitted that because he had recommenced employment at Coles Mackay on 8 August 2016, a gap of less than three months, his continuity of service was maintained in accordance with Coles policy. Mr Angelakos did not submit a copy of the policy that he referred to prior to or during the Conference. I requested that Coles produce a copy of the relevant Coles policy as part of their closing submissions. 109 Coles made submissions in respect of Mr Angelakos’ continuity of service, which appear below.

[547] Mr Angelakos sought reinstatement to his former position at as Duty Manager at Coles Moranbah. Mr Angelakos submitted that he ‘would be willing to return to his previous store or one in NSW’. Mr Angelakos also sought compensation for lost remuneration in the maximum awardable amount of 26 weeks’ pay.

s.387(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)

[548] Mr Angelakos submitted that there was insufficient evidence to substantiate the allegations against him. Consequently, Mr Angelakos claims there was no valid reason for his dismissal and no sufficient basis to establish that his behaviour was tantamount to serious misconduct.

s.387(b) - Whether the person was notified of that reason

[549] Mr Angelakos submitted that he was not ‘counselled’ or ‘warned’ by Coles that his conduct was in any way deficient prior to the commencement of the investigation into the allegations against him. However, it was not contested by Mr Angelakos that the allegations against him were put to him prior to his termination and did not dispute that the reasons for his termination were made clear to him by Mr Morton and Ms Bidewell during the meeting of 9 March 2018.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[550] Mr Angelakos submitted that the two opportunities he had on 2 and 9 March 2018 to discuss the alleged incidents that formed the basis for his dismissal were insufficient to provide him with a fair opportunity to respond to the 39 allegations put to him by Ms Mulenga. 110 Mr Angelakos submitted that Coles is a very large business with a significant number of dedicated human resources staff and yet failed to properly consult with him or counsel him in relation to his conduct prior to summarily dismissing him on 9 March 2018.

s.387(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

[551] Some evidence was given in the statements of Mr Morton and Ms Bidewell that Mr Angelakos had initially disputed that he had been informed that he could bring a support person to the meeting of 9 March 2018. It was not contested by Mr Angelakos at the conference that he had been told that he could bring a support person to that meeting, or any other meeting conducted in relation to the investigation and his eventual dismissal.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[552] As noted above, Mr Angelakos submitted that he was not ‘counselled’ or ‘warned’ by Coles that his conduct was deficient prior to Coles’ investigation into the allegations against him. Mr Angelakos submitted that prior to him being made aware of the allegations against him, he had not been aware that he had engaged in any conduct that had made his colleagues feel uncomfortable. Mr Angelakos submitted that if he had been notified ‘as and when any issues arose’, he would have been more than willing to engage in any necessary training to alter his conduct.

s.387(f) - Whether Coles’ size impacted on the procedures followed

[553] Mr Angelakos submitted that Coles was one of the largest employers in Australia and in that context, the processes followed regarding the initial handling of the complaints against him and Ms Mulenga’s investigation ‘left a lot to be desired’. Mr Angelakos submitted that Coles’ dedicated human resources management specialists should have engaged in a fairer process than the investigation that was conducted in the circumstances.

s.387(g) - Whether the absence of a dedicated resource management specialist impacted on the procedures followed

[554] Mr Angelakos noted in his submissions that Coles had available to it dedicated human resource management specialists.

s.387(h) - Other matters

[555] Mr Angelakos submitted in his original application that the Moranbah is a tight-knit community open to gossip. Mr Angelakos submitted that the allegations against him were part of a co-ordinated attempt by disgruntled junior employees to get him dismissed from his position. Mr Angelakos submitted that this group of disgruntled employees were under his supervision and were unhappy that Mr Angelakos made consistent, though in his view, reasonable demands for better service. Mr Angelakos submitted that he had had an unblemished employment record prior to his commencement of employment at Coles Moranbah. 111

[556] Mr Angelakos submitted that it would have been ‘a fairer outcome’ for him to have been given ‘an official warning and training’ as a result of Ms Mulenga’s investigation.

Mitigation of loss

[557] Mr Angelakos provided submissions regarding his actions to mitigate his loss after the conference upon directions issued by me. Mr Angelakos submitted that on 18 May 2018 he agreed to a ‘Job Plan’ with Centrelink, whereby he agreed to search for work by contacting 20 employers per month. Mr Angelakos submitted evidence of his attempts to secure further employment in the form of three ‘job log sheets’ that he had submitted to Centrelink, dated 25 July 2018 to 29 August 2018 and showing that Mr Angelakos had applied for 15 jobs in that period. Mr Angelakos also submitted three additional emails passing between him and prospective employers during July and August 2018.

[558] Mr Angelakos submitted that he had secured employment as a Distribution Centre Storeperson, starting on 5 October 2018, although this start date might need to be later confirmed.

Respondent’s submissions

[559] Coles’ closing written submissions were filed to chambers on 16 October 2018. It was submitted that Mr Angelakos’ dismissal was not harsh, unjust or unreasonable and that his application should be dismissed.

[560] It was submitted that the main thrust of Mr Angelakos’ submissions was that the conduct resulting in the allegations made against him, and investigated by Ms Mulenga should have been brought to his attention before complainants made written complaints against him. Coles submitted that Mr Angelakos missed the point of the reason that he had been dismissed; that the employees that had made complaints against him were entitled to attend work and be treated appropriately by Mr Angelakos, their older, male supervisor, without having to explain to him what was and what was not appropriate conduct.

s.387(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)

[561] An investigation into allegations of inappropriate conduct against Mr Angelakos was prompted by two separate complaints made by AB and CD, followed by two more complaints by EF and GH.

[562] Coles submitted that it is not the Commission’s role to stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. It was submitted that the question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees). 112

[563] Although other allegations were put to Mr Angelakos as part of Ms Mulenga’s investigation, Coles submitted that it had relied on AB’s, CD’s, EF’s and GH’s allegations against Mr Angelakos as constituting a valid reason for Mr Angelakos’ dismissal, as well as the pattern of behaviour towards certain young employees that could be drawn from that conduct.

[564] AB’s allegations in summary were that Mr Angelakos had on several occasions invaded AB’s personal space by holding his hands above her shoulders, and touching AB’s upper arms and shoulders and the small of her back, made inappropriate comments to her about her appearance, and had made her feel uncomfortable by being inappropriately close to her.

[565] CD’s allegations in summary were that Mr Angelakos had followed her and her boyfriend around the store shortly before she commenced working at the store. CD alleged that after she started at the store, Mr Angelakos harassed her and made her feel uncomfortable by standing inappropriately close to her when speaking, bringing her flowers on her first day of work, encouraging her to connect with him on social media and commenting on her appearance. CD also alleged that Mr Angelakos had made her feel uncomfortable by refusing to move out of her way when she tried to exit a dairy cold room and by becoming disproportionately angry after she misplaced store equipment.

[566] EF’s allegations in summary were that Mr Angelakos had stood inappropriately close to her while speaking to her, had made inappropriate comments about her appearance, and had acted aggressively towards her in relation to ‘priority calls’, taking over from Mr Angelakos while working on the store’s registers and saying to EF that she was ‘very rude’ after EF did not say hello to Mr Angelakos.

[567] GH’s allegations in summary were that Mr Angelakos had made her feel uncomfortable by touching her on the shoulder when he walked past, had made inappropriate comments about GH’s appearance, and had become unnecessarily angry at her on several occasions, including yelling at her from a close proximity while GH was cleaning registers in the assisted checkout area.

[568] Coles submitted that the evidence given by AB, CD, EF and GH was clear, cohesive and supportable by the evidence given by other witnesses at the Conference.

[569] Coles submitted that it was unquestionable that Mr Angelakos’ conduct had made those persons feel uncomfortable and concerned about work, and had the potential to negatively impact their health and safety.

[570] It was submitted that there were several aggravating factors that contributed to the relative severity of Mr Angelakos’ conduct:

•  Mr Angelakos’ position as Duty Manager put him in a position of power in respect of other staff. His conduct was wholly inconsistent with the type of behaviour expected from a person in a leadership position;

•  Mr Angelakos’ conduct escalated after Mr Holloway left the Coles Moranbah store, on or about 22 January 2018, and Mr Angelakos’ behaviour became worse after he obtained more responsibility and autonomy, which suggests that Mr Angelakos is unsuitable for the leadership position he occupied;

•  AB, EF and GH are under 18 years of age;

•  Mr Angelakos lacked insight into the inappropriateness of his own behaviour and did not appreciate what is acceptable workplace behaviour;

•  Mr Angelakos received coaching and guidance from Ms Bainbridge (and to a lesser extent, Ms Channells) about respecting personal boundaries throughout his employment at Coles Moranbah and including prior to the conduct which prompted AB and CD to make complaints;

•  Mr Angelakos agreed that he had knowledge of the Code and EO Policy.

[571] Coles submitted that Mr Angelakos’ conduct was in breach of the Code and EO Policy and further, may have constituted unlawful sexual harassment under the Sex Discrimination Act 1975 (Cth).

[572] It was submitted that Mr Angelakos’ conduct in this matter was analogous to the conduct considered in the matters of Sapienza v Cash in Transit T/A Secure Cash 113 (Sapienza) and Homer Abarra v Toyota Motor Corporation Australia Ltd114 (Abarra). My consideration of those two cases appears below at [748].

[573] Coles submitted that a separate but valid reason for Mr Angelakos’ dismissal was that his conduct could potentially damage Coles’ reputation and business within the small Moranbah community, and particularly in the circumstances that recruitment of young staff members from that community was important to the store’s operation.

[574] The Respondent submitted that were this Commission to find that Mr Angelakos had been dishonest in his responses to Ms Mulenga during her investigation, by virtue of his evidence at the conference, then Mr Angelakos’ dishonesty in responding to Coles’ enquiries about his conduct towards AB, CD, EF and GH would be a separate and valid reason for his dismissal in its own right. 115

s.387(b) - Whether the person was notified of that reason

[575] Coles submitted that Mr Angelakos was notified of the reasons for his dismissal in the meeting on 9 March 2018.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[576] Coles submitted that Mr Angelakos was given ample opportunity to respond to the allegations put to him during Ms Mulenga’s investigation. Ms Mulenga afforded Mr Angelakos an extension of time to provide his written response, and Mr Angelakos did eventually provide a written response to each allegation put to him.

[577] It was submitted that any time pressure upon Mr Angelakos to respond to the allegations was brought about by his own delay in preparing his responses while he waited to receive legal advice. Coles criticises Mr Angelakos for not preparing his response and awaiting legal advice before he submitted them to Ms Mulenga, as opposed to waiting to prepare any responses until he had learned how he should respond to the allegations against him upon receiving legal advice.

s.387(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

[578] It was submitted that Mr Angelakos declined the invitation to have a support person attend with him at the meeting on 9 March 2018, and Coles did not unreasonably refuse for Mr Angelakos to have a support person at that meeting.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[579] It was submitted that Mr Angelakos’ dismissal was related to his misconduct and not his unsatisfactory performance, and accordingly this criterion had no bearing on this matter.

s.387(f) - Whether Coles’ size impacted on the procedures followed; and s.387(g) - Whether the absence of a dedicated resource management specialist impacted on the procedures followed

[580] It was conceded that Coles did not lack human resource expertise and was not a small business.

s.387(h) - Other matters

Credibility of Mr Angelakos’ evidence

[581] It was submitted that Mr Angelakos’ evidence at the conference was unreliable, evasive and inconsistent with responses given by him during Ms Mulenga’s investigation, and inconsistent with other parts of his own evidence at the conference. Coles submitted that on several occasions throughout the conference, Mr Angelakos would initially deny that an event of his misconduct had ever occurred. Only after it was drawn to Mr Angelakos’ attention that his evidence may have been inconsistent with his previous responses given to Ms Mulenga would Mr Angelakos suggest that he could now remember the events in question. It was submitted that Mr Angelakos tailored his evidence to give answers that he thought would best suit his interests.

[582] Coles submitted in contrast that its own witnesses, several of whom were of a young age, gave evidence consistent with the accounts and responses regarding Mr Angelakos’ conduct that they gave to Ms Mulenga during her investigation.

Mr Angelakos’ submissions regarding meeting of 9 March 2018 and outcome

[583] Coles noted Mr Angelakos’ submissions during the conference that Ms Mulenga’s pre-filled sections of the discussion record document used during the meeting of 9 March 2018 indicated that a decision had already been made to take disciplinary action against him before the meeting of 9 March 2018. Coles submitted that there was no substance to Mr Angelakos’ submission, as the outcome of ‘termination of employment’ had been circled in pen by Mr Morton during the meeting and that ‘prompts’ had been included in the discussion record document by Ms Mulenga to be used in the event that it was decided that Mr Angelakos should not be dismissed.

[584] Coles submitted that the decision to dismiss Mr Angelakos was fair and appropriate in the circumstances. Coles repeated its submission that it is not the Commission’s function to ‘stand in the shoes’ of Coles and determine whether the decision to dismiss Mr Angelakos would have been made by the Commission; the Commission’s role is to assess whether, on the evidence provided, facts existed at the time of termination that justified dismissal.

[585] It was further submitted given Mr Angelakos denied that he had engaged in much of the conduct alleged, and denied that any conduct he had engaged in had been inappropriate, a decision to issue a warning and further training was inappropriate. In those circumstances Coles could have no confidence that Mr Angelakos understood and accepted that his behaviour was inappropriate and that he would not repeat such conduct in the future.

Solicitation of complaints and collusion amongst complainants

[586] Coles noted that at the conference, Mr Angelakos suggested that several of the written complaints made against him had been solicited by Ms Bainbridge, and that Ms Bainbridge and several of the complainants had conspired to make complaints against him. It is submitted that there was no evidence that suggested that Ms Bainbridge had orchestrated a conspiracy of complainants against Mr Angelakos, and noted Ms Bainbridge’s evidence at the conference that she had continued to attempt to help Mr Angelakos improve his leadership skills throughout his employment at Coles Moranbah.

Rumours and complaints prior to formal complaints of AB and CD

[587] Coles acknowledged that there had been ‘rumours’ and some complaints about Mr Angelakos’ conduct prior to the formal complaints made by AB and CD, which ultimately led to the investigation of Mr Angelakos’ conduct throughout his employment and particularly from approximately August 2017 to the end of January 2018. Coles submitted that those circumstances should not weigh in favour of awarding a remedy to Mr Angelakos because:

•  Coles itself was not satisfied with the actions taken by Mr Holloway to manage those earlier ‘rumours’ and complaints. Coles issued Mr Holloway with a final written warning as a result. To the extent that Mr Holloway failed to escalate those issues that he was aware of throughout 2017, he was acting outside of his authority as Store Manager and his inaction should not be attributed to Coles;

•  Ms Bainbridge’s evidence was that she provided Mr Angelakos with regular coaching about his behaviour, including in response to the earlier complaints against him that Ms Bainbridge was aware of; and

•  Ms Bainbridge’s evidence was that AB’s and CD’s complaints included allegations of misconduct far more serious than had been known to her prior to AB’s and CD’s written complaints during late January 2018.

Continuity of service

[588] Coles addressed Mr Angelakos’ submission that he had maintained continuity of service despite his resignation on 15 May 2016, as he had recommenced work with Coles within three months on 8 August 2016. Coles provided a copy of an internal Coles policy document on continuity of service (the Continuity Policy) which Mr Angelakos had referred to on the final day of the conference.

[589] Coles submitted that the Continuity Policy applies only for the calculation of a person’s long service leave entitlements and ‘Loyal Service’ milestones; a gift and rewards program based on an employee’s length of service. It was submitted that the Continuity Policy was applied at Coles’ discretion, and only to employees classified as having been ‘re-hired’. Mr Angelakos’ employment at the Coles Mackay store had not been classified by Coles as a ‘re-hire’.

Submissions on ‘harshness’ of dismissal

[590] Coles acknowledged Mr Angelakos’ length of service with Coles and his employment in a remote location may be considered to contribute to the ‘harshness’ of Coles’ decision to dismiss him. It was submitted that those factors must be balanced against the reason or reasons for Mr Angelakos’ dismissal, and particularly his sustained pattern of inappropriate conduct towards junior, female team members.

[591] Regarding Mr Angelakos’ length of service, Coles submitted that on the basis of its earlier submissions, consideration should only be given to Mr Angelakos’ period of service from 8 August 2016. The resultant period of service of approximately 20 months was not a particularly significant period.

[592] Coles submitted that even if the Commission considered that Mr Angelakos’ length of service should extend from 1 August 2009 to 9 March 2018, less the period that he was not employed by Coles from 15 May 2016 to 7 August 2016, that would not render his dismissal ‘harsh’. It was submitted that if anything, Mr Angelakos’ significant length of service with Coles and his additional experience, knowledge and training in Coles’ policies should render his inappropriate behaviour more serious.

[593] Regarding Moranbah’s remote location, Coles submitted that the rationale that dismissal from employment in a remote location is that there are often fewer opportunities for subsequent employment in remote locations. Coles submitted that that rationale could not be applied to Mr Angelakos’ case, as he and his family relocated to Sydney shortly after his dismissal. Coles attempted to ameliorate the costs of Mr Angelakos’ relocation by offering to pay for Mr Angelakos’ relocation, first to Mackay and then on his request to Sydney.

[594] It was submitted that Mr Angelakos had independently decided to apply for the Duty Manager position at Coles Moranbah and had not been induced to apply for that position by Coles.

Coles’ submissions on remedy

[595] Coles submitted that if found that the Applicant's dismissal was harsh, unjust or unreasonable, that the Commission ought to exercise its discretion not to award a remedy given the serious nature of Mr Angelakos’ misconduct. It was submitted that the wording of s.390 of the Act made it clear that the Commission ‘may’ award an unfair dismissal remedy if satisfied that a person had been unfairly dismissed.

Coles’ submissions on reinstatement

[596] Coles submitted that it would be inappropriate to reinstate Mr Angelakos to his former position of Duty Manager at Coles Moranbah because:

•  Coles had a reasonable and objective basis to, and in fact had, lost trust and confidence in Mr Angelakos to perform a senior managerial position in any of its stores;

•  There had been a breakdown in the relationship between Coles and Mr Angelakos, and Mr Angelakos himself acknowledged that he was ‘unhappy, disappointed, disillusioned and distressed’ by the events concerned in this matter. It was submitted that Mr Angelakos’ conduct towards Mr Morton and Ms Bidewell following his dismissal was evidentiary and causative of the breakdown in Coles’ and Mr Angelakos’ relationship;

•  It would not be appropriate for Mr Angelakos to be reinstated to the Coles Moranbah store while EF and GH continued to work there. Further, Mr Angelakos’ return to the Moranbah community would have an effect on AB an CD as Moranbah is a ‘one supermarket town’;

•  During the conference, it became apparent that there was some animosity between Mr Angelakos and persons that continued to work at Coles Moranbah, such as Ms Maher who gave evidence that she had been ‘threatened’ by Mr Angelakos. Coles noted that at the conclusion of Ms Daniels’ evidence, Mr Angelakos said to her, “Enjoy the ride till I come back”, impliedly referring to Mr Angelakos’ previous Duty Manager position which Ms Daniels now fulfils. 116 Coles submitted that there was a reasonable basis to conclude that Mr Angelakos would not be mature about his reinstatement and would seek retribution against any employees that had given evidence against him in these proceedings; and

•  Mr Angelakos has confirmed that he has commenced subsequent employment in Sydney.

Coles’ submissions on compensation

[597] Coles submitted that Mr Angelakos had failed to provide any evidence of his earnings that would allow this Commission to assess the extent of any loss he suffered from the time of his dismissal until the conference, and following the conference until the time of this decision.

[598] It was submitted that Mr Angelakos’ attempts to mitigate his loss, evidenced by his job application emails and text messages and the three ‘job log sheets’, were ‘lacklustre at best’, consisting only of short emails and text messages responding to short term work requests and not any actual job advertisements. Coles submitted that Mr Angelakos had submitted no evidence of any work being sought between Mr Angelakos’ dismissal on 9 March 2018 and late July 2018.

[599] Coles noted Mr Angelakos’ submission that he had commenced subsequent employment on 5 October 2018, but submitted that Mr Angelakos had not provided any details of his income in his new employment. It was submitted that Mr Angelakos had not met his burden to establish any loss continuing after gaining subsequent employment.

[600] It was submitted that Mr Angelakos’ application should be dismissed. In the alternative, Coles submitted that Mr Angelakos should not be awarded reinstatement or any amount of compensation. Further in the alternative, Coles submitted that if a decision was made to award compensation Mr Angelakos, that amount should be reduced, on the grounds that Mr Angelakos had failed to make adequate efforts to mitigate his loss and taking into account the serious nature of Mr Angelakos’ misconduct.

Consideration

[601] Before I determine the relevant considerations in s.387 of the Act, it is necessary to conclude Mr Angelakos’ length of service with Coles. The Coles’ Continuity of Service policy was provided following the conference. Having reviewed it, I am not satisfied that it provides for discretionary application.

[602] In my view, for the purposes of Coles’ service recognition, and for long service leave, the policy appears to apply universally to those re-hired within three months of their resignation. Further, I note the Discussion Record provided to Mr Angelakos on 9 March 2018 states the following:

[603] I consider that the policy applies to Mr Angelakos for the purposes of Coles service recognition and for long service leave, and his service is accordingly somewhat over eight years. His service for consideration of s.387 of the Act is only the period 7 August 2016 to 9 March 2018.

[604] I will now consider each of the criteria set out in s.387 of the Act separately:

s.387(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)

[605] Coles must have a valid reason for dismissing Mr Angelakos, although it need not be the reason given to the applicant at the time of the dismissal. 117 The reasons should be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”118

[606] To determine if there was a valid reason for Mr Angelakos’ dismissal relating to his conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by Mr Angelakos actually occurred. 119 It is insufficient for Coles to establish that it held a reasonable belief that Mr Angelakos’ dismissal was for a valid reason. The Commission must make a finding as to whether Mr Angelakos engaged in the conduct alleged against him on the evidence before it.120

[607] How breaches of an employer’s policies should be considered in the context of whether a valid reason for an employee’s dismissal was considered by the Full Bench in B, C and D v Australian Postal Corporation T/A Australia Post 121, where the Full Bench stated:

[608] Mr Angelakos was dismissed following findings made by Ms Mulenga following her investigation of 39 separate allegations against Mr Angelakos. Of those 39 allegations, Ms Mulenga found that 19 allegations were substantiated on the evidence available to Ms Mulenga, including admissions made by Mr Angelakos during his interview and in his written responses. A further 14 allegations were substantiated on the balance of probabilities.

[609] The Discussion Record issued to Mr Angelakos on 9 March 2018 details the findings with respect to the substantiated allegations. It does not describe the unsubstantiated findings, and therefore, when addressing the matters with him on 9 March 2018, allowed for focus on only the substantiated breaches of the Code or EO Policy.
[610] The termination letter issued by Coles to Mr Angelakos is as follows:

[611] The letter is elementary and lacking any specificity. It would have been prudent for Coles to have listed all of the proven allegations as the reasons for the dismissal, or even have said that it is per the reasons as stated in the Discussion Record.

[612] On the assumption that the dismissal was made against the substantiated findings and those contained within the Discussion Record, I will now turn to each of those to state if I conclude that each of those things that are said to have happened did happen. If I have not directly said so, if I accept any of the allegations, I do so on the balance of probabilities.

Allegation 1 – discussion regarding time off in lieu.

[613] Ms Mulenga determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Code, that being ‘What we expect from our team members/leaders’. Having observed Mr Angelakos at the conference, I am satisfied that Mr Angelakos did not drop the roster on the table without intent, nor do I accept that he was politely making inquiries to Ms Bainbridge.

[614] I accept that Mr Angelakos was quite upset at having to work repeated public holidays. He conceded to me in questions at the hearing that he was upset, but stated that he did not raise his voice or arms, or act aggressively. I prefer Ms Bainbridge’s evidence over Mr Angelakos on this issue and accept on the balance of probabilities that he acted poorly, and made threats to report Ms Bainbridge to HR.

[615] I accept Ms Mulenga’s findings that this constituted a breach of the Code.

Allegation 2 - discussion regarding marinara mix

[616] Ms Mulenga determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Code, that being ‘What we expect from our team members/leaders’. Having observed Mr Angelakos at the conference I am satisfied that Mr Angelakos spoke in the manner complained of to Ms Bainbridge.

[617] I have no hesitation in concluding that Mr Angelakos considered that the deli worker was incorrect when preparing the marinara mix, and he alone was correct. Mr Angelakos had not reviewed the Coles manual which provides instruction on how to prepare the mix, and he had considered that the way the marinara mix had been prepared in other stores he worked in to be the correct way, without checking the manual.

[618] I am satisfied on the balance of probabilities that Mr Angelakos did make reference to him wearing a white shirt, as a manager, and others not following his instructions. He carried on and spoke in a loud and aggressive voice, repeatedly stepping towards and away from Ms Bainbridge, rolling his eyes, muttering and gesturing his arms aggressively.

[619] I prefer Ms Bainbridge’s evidence over Mr Angelakos, and do not accept on the balance of probabilities that he had been walking alongside Ms Bainbridge while she worked as opposed to stepping toward and away from her. I consider that Mr Angelakos acted in a very passionate way over this issue and did not appreciate being informed by a deli worker that he was incorrect. I do not accept his evidence that Ms Bainbridge did not want to discuss the issue further; I prefer her evidence that she was prepared to show him the manual.

[620] I accept Ms Mulenga’s findings that this constituted a breach of the Code.

Allegation 3 – standing too close to AB

[621] Ms Mulenga determined that the allegation was substantiated on the basis of evidence to support. She found that there had been a breach of the Equal Opportunity Policy – Sexual Harassment.

[622] Having observed Mr Angelakos and witness AB, and having regard to a consistent complaint and consistent evidence of the witnesses, I am satisfied on the balance of probabilities that Mr Angelakos stood too close to AB, without respect for her personal space.

[623] It is concerning that a 52 year old man in a senior position in the store did not recognise the inappropriateness of repeatedly standing so close to a 17 year old junior employee.

[624] I accept Ms Mulenga’s findings that this constituted a breach of the Equal Opportunity Policy – Sexual Harassment.

Allegation 4 – touched AB shoulder or arm

[625] Ms Mulenga determined that the allegation was substantiated on the basis of evidence to support. She found that there had been a breach of the Equal Opportunity Policy – Sexual Harassment.

[626] Mr Angelakos’ evidence on this matter is split; firstly he denied in writing having done so, but said if it had been brought to his attention he would have changed his ways. He then denied ever having touched AB on the arm or shoulder when he spoke with Ms Mulenga.

[627] I prefer AB’s evidence over Mr Angelakos’ evidence. Having observed a demonstration during the hearing, I accept that as odd as it was, Mr Angelakos hovered his hand over AB’s shoulder, and at times dropped it down. Noting that there would have been a significant distance between the two given the reach of Mr Angelakos’ arm, I find that he did touch AB on the shoulder so to exert authority over AB.

[628] I have formed the view that Mr Angelakos was unlikely to have been touching AB in a sexual manner, but it was completely unnecessary, and he did not do so to older female employees. The EO Policy indicates that the intent of Mr Angelakos does not determine whether the action constitutes sexual harassment; it is a question of whether a reasonable person, having regard to all of the circumstances, would have anticipated the possibility that the person being harassed would be offended, humiliated or intimidated.

[629] I accept that the act of touching AB on the shoulder was unnecessary, and a reasonable person, having regard to all of the circumstances would have anticipated the possibility that the person being harassed would be offended, humiliated or intimidated, especially when AB was singled out for this conduct.

[630] I accept Ms Mulenga’s findings that this constituted a breach of the Equal Opportunity Policy – Sexual Harassment.

Allegation 5 – touched AB in the small of her back

[631] Ms Mulenga determined on the balance of probabilities that she preferred AB’s evidence over Mr Angelakos’, and determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Equal Opportunity Policy – Sexual Harassment.

[632] Having regard to the numerous times Mr Angelakos said to AB “good evening” on 27 January 2018, it is pestering and unnecessary to approach AB again, while leaning towards her ear to say it again. I accept that it occurred, and consider it to be odd, obsessive conduct.

[633] Again, Mr Angelakos’ evidence on this matter is split; firstly he denied in writing having done so, but then said if he had caused discomfort there would definitely not be a repeated incident. The following day he then completely denied it.

[634] I am mindful that AB reported this unpleasant incident to her parents on 28 January 2018 after a second occurrence. She then sought assistance from older female employees to report the incidents.

[635] I accept AB’s evidence and find on the balance of probabilities that Mr Angelakos did place his right hand into the small of AB’s back for approximately five seconds and this caused her serious discomfort and fright.

[636] I accept Ms Mulenga’s findings that this constituted a breach of the Equal Opportunity Policy – Sexual Harassment.

Allegation 6 – again touched AB on the small of her back

[637] Ms Mulenga determined on the balance of probabilities that the allegation was substantiated. She found that there had been a breach of the Equal Opportunity Policy – Sexual Harassment.

[638] Having accepted that on the balance of probabilities the incident on 27 January 2018 occurred, I likewise find on the balance of probabilities that the repeated incidents on 28 January 2018.
[639] Despite Ms Angelakos’ protests, AB, as a 17 year old is not required to inform him that she does not like what he is doing. She was ill-equipped to do so and I accept that. Some 17 year old employees may very well stand up to such harassment and call it out; but not every 17 year old is going to have such fortitude.

[640] I consider that Mr Angelakos knew what he was doing was wrong, and he had ‘tested the waters’ the day before, with inappropriately touching AB.

[641] I do not accept Mr Angelakos’ denial of the allegation. Where he suggested that if she felt uncomfortable, she could have told others; she did. She informed her parents that evening and the following day informed an older female employee and it was immediately reported.

[642] I accept Ms Mulenga’s findings that this constituted a breach of the Equal Opportunity Policy – Sexual Harassment.

Allegation 7 – priority to service call

[643] Ms Mulenga determined that the allegation was substantiated on the basis of evidence to support. She found that there had been a breach of the Equal Opportunity Policy – Workplace Bullying.

[644] It appears to me that Mr Angelakos was concerned that if priority calls were made while he was in charge, it would reflect poorly on him. He was prepared to unreasonably chastise junior employees if they called a second priority call when he was working.

[645] I accept the corroborated evidence that Mr Angelakos inappropriately chastised EF, and do not accept his evidence that he could not recall the incident. In cross-examination he agreed that junior employees were, in his view, often quick to panic and call a priority call. There are appropriate ways and means to address such concerns with junior employees without castigating them.

[646] I accept Ms Mulenga’s findings that this constituted a breach of the Equal Opportunity Policy – Workplace Bullying.

Allegation 8 – “take over from me”

[647] Ms Mulenga determined that the allegation was substantiated on the basis of evidence to support. She found that there had been a breach of the Equal Opportunity Policy – Workplace Bullying.

[648] Mr Angelakos stated in writing that he could not recall the incident. In his telephone call to Ms Mulenga he stated that he did not believe that it happened. In cross-examination he was unsure if he had held a conversation with EF, explaining rather than telling her that it’s best to serve customers than clean. He then retracted from that and stated that he could not recall such a conversation.

[649] There is corroborating witness evidence that supports the finding that Mr Angelakos did, in fact, speak incredibly poorly to EF and chastised her. She was following ‘Jenny’s direction’, and I accept that following Mr Angelakos’ blast at EF, he then spoke with Jenny.

[650] I consider it unacceptable that Mr Angelakos approached EF, pointed aggressively at her with his index finger, with his face approximately 20 centimetres from her and demanded that when he is serving, she take over from him.

[651] I accept Ms Mulenga’s findings that this constituted a breach of the Equal Opportunity Policy – Workplace Bullying.

Allegation 9 – targeting or picking on EF

[652] Ms Mulenga determined that the allegation was substantiated on the basis of evidence to support. She found that there had been a breach of the Equal Opportunity Policy – Workplace Bullying.

[653] I accept Mr Angelakos’ evidence that he reasonably considered that EF did not perform her duties (other than when on the register) with requisite speed and productivity. Other witnesses agreed that she sometimes was seen to amble around the store.

[654] I do not accept that it was unreasonable for Mr Angelakos to direct EF to work on the register as opposed to other tasks.

[655] I do not accept Ms Mulenga’s findings that this constituted a breach of the Equal Opportunity Policy – Workplace Bullying.

Allegation 10 – “Say hello…..you are very rude”

[656] Ms Mulenga determined on the balance of probabilities that the allegation was substantiated. She found that there had been a breach of the Equal Opportunity Policy – Workplace Bullying.

[657] Mr Angelakos denied that he chastised EF and told her she was very rude for not saying hello to him, but in cross-examination agreed that he noticed that she did not say hello to fellow team members.

[658] It is noted that EF reported the incident and was observed to be visibly upset.

[659] I accept that Mr Angelakos was within his rights to say hello to a team member once per shift. It does not need to be said more than once per shift. If a team member does not return the greeting, it is acceptable for a manager to address the employee and make inquiries. It should, however, be done appropriately, not demanded.

[660] I accept on the balance of probabilities that Mr Angelakos did inappropriately address EF on not saying hello to him. Her evidence is that she tried to have as little contact with him as possible.

[661] I accept Ms Mulenga’s findings that this constituted a breach of the Equal Opportunity Policy – Workplace Bullying.

Allegation 11 – report back every hour – not substantiated, no breach

Allegation 12 – “why aren’t you doing your work?” – unable to be substantiated, no breach

Allegation 13 – the service team is ‘lazy’ – unable to be substantiated, no breach

Allegation 14 – following Mr Miels around the store while he was shopping

[662] Ms Mulenga determined that the allegation was substantiated on the basis of evidence to support. She found that there had been a breach of the Code – What we expect from our team members/leaders.

[663] Mr Angelakos denied having ever followed Mr Miels around the store when he was shopping. Whilst I appreciate that Mr Angelakos was at a disadvantage in not being able to cross-examine Mr Miels, I prefer the complaint of Mr Miels over Mr Angelakos’ evidence. I have concluded that he took an unhealthy interest in CD and her shopping expedition; likewise with KL, he took interest in her when she was shopping.

[664] It is exceptional to note that Mr Miels’ roommate became so uncomfortable with Mr Angelakos’ staring, he abandoned his shopping in a one-supermarket town. All Mr Angelakos had to do was greet Mr Miels and his roommate once, and farewell them at the checkout if he had no interest in Mr Miels stealing from the store. If there was any reason for Mr Angelakos to run into them while he traversed the store he could have briefly smiled, or not looked at them at all.

[665] I accept Ms Mulenga’s findings that this constituted a breach of the Code – What we expect from our team members/leaders.

Allegation 15 – “I’m the only person to you let you out” – unsubstantiated, no breach

Allegation 16 – speaking about Mr Miels to others

[666] Ms Mulenga found only the comment made to Mr Huntley to be substantiated, resulting in a breach of the Code – What we expect from our team members/leaders.

[667] Despite Mr Angelakos’ denial, on the basis of supporting evidence I accept that Mr Angelakos said to Mr Huntley, “Why are you always on Jacob’s side and never on my side when I talk to him?”

[668] I accept Ms Mulenga’s findings that this constituted a breach of the Code – What we expect from our team members/leaders.

Allegation 17 – staring at CD whilst shopping with her boyfriend – substantiated, but unsubstantiated on reasonableness, no breach

Allegation 18 – “you stand out from everybody”

[669] Ms Mulenga determined the allegation was substantiated with evidence to support. She found that there had been a breach of the Equal Opportunity Policy – Sexual harassment.

[670] Ms Mulenga also determined that Mr Angelakos said to CD, “Your tattoos are very pretty”, “Your piercings are very pretty”, and “You are looking really nice today”.

[671] Mr Angelakos agreed that he said to her that she stands out, in reference to her tattoos and piercings. He denied that he said the other things to her.

[672] I do not accept that Mr Angelakos limited himself to the statement, “You stand out from everybody”. I have formed the view that Mr Angelakos was originally smitten with CD and very pleased that she was working in his store. He admired her appearance, and he told her so. I accept that he said to her, “Your tattoos are very pretty”, “Your piercings are very pretty”, and “You are looking really nice today” and these were all unwelcome statements. He worked with CD for only approximately one week, and I consider that he was making unwelcome advances on her.

[673] I accept Ms Mulenga’s findings that this constituted a breach of the Equal Opportunity Policy – Sexual Harassment.

Allegation 19 – repeated requests to become Facebook friends

[674] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Equal Opportunity Policy – Sexual harassment.

[675] Mr Angelakos said that he often requested other staff members become Facebook friends, and he named them. One of those rejected in these proceedings that he had been asked to become a Facebook friend.

[676] Mr Angelakos said that he meant the request to CD to be a harmless joke or ‘parody’. It is not clear to me if Mr Angelakos understands what a parody is. Mr Angelakos’ repeated requests to CD, when she clearly rebuffed his first suggestion made CD feel uncomfortable, and it was an inappropriate intrusion on her personal life.

[677] If Mr Angelakos does only have two Facebook friends and uses it for buy/swap/sell, he should have known or ought to have known it was not appropriate for him, as a Duty Manager, to ask a 23 year old new employee if she would join him on Facebook. It is clear as day that his request that CD pay him $10 for ‘likes’ would have been cringe-worthy and embarrassing for her.

[678] I do not accept that CD laughed at the joke as claimed by Mr Angelakos. I find that he asked her more than once to join him on Facebook.

[679] I accept Ms Mulenga’s findings that this constituted a breach of the Equal Opportunity Policy – Sexual Harassment.

Allegation 20 – first day of work offering flowers

[680] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Equal Opportunity Policy – Sexual harassment.

[681] CD’s evidence is that she had finished work for the day, her first day at Coles Moranbah. Mr Angelakos had, in her view, unnecessarily spoken to her throughout her first shift of four hours’ duration within non-work related inquiries.
[682] I have earlier found that I consider that Mr Angelakos was originally smitten by CD’s appearance. I conclude that he found many opportunities during her first shift to talk to her unnecessarily.

[683] She was speaking with her boyfriend on the telephone while she was in-store. Mr Angelakos approached her with a bunch of flowers and said, ““I’ve bought you these flowers for doing such a great job”. She declined the flowers and walked away.

[684] I do not consider that Mr Angelakos would have paid for the flowers at the time he made such an offering to CD. Accordingly, I accept his evidence that he was moving them from one part of the supermarket to another. Perhaps if she had accepted the flowers he might have taken the barcode sticker from them and paid for them; we’ll never know.

[685] Mr Angelakos’ evidence was that he had a jovial relationship with CD and they both joked around with each other. I do not accept this as it was their first working shift together. They had spent only four hours with each other, and on CD’s account, it was not jovial at all. It does appear to me to be a silly gesture to make to a new employee. I accept that CD would have been uncomfortable with the gesture, as frivolous to Mr Angelakos as it may have been.

[686] I do not think that Mr Angelakos offered the flowers seriously expecting CD to accept the flowers. Nevertheless, it made CD very uncomfortable.

[687] I accept Ms Mulenga’s findings that this constituted a breach of the Equal Opportunity Policy – Sexual Harassment.

Allegation 21 – invading personal space

[688] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Equal Opportunity Policy – Sexual harassment.

[689] Mr Angelakos suggested that if he was close to CD, it might have been him being discreet about out-of-date stock. He stated that he is not close enough to staff members that it makes them uncomfortable.

[690] I accept CD’s evidence that she considered that he was far too close to her, and she informed him so and requested that he step back. He continued to remain within her personal space, requiring her to take further steps back.

[691] Other witnesses supported this evidence. Sadly, Mr Angelakos was the only one not able to understand how close he was to CD (and others). He failed to adhere to a reasonable request made by CD to move a reasonable distance from her.

[692] I do not accept Mr Angelakos’ assertion that following the dismissal he was made aware that he has a hearing issue, and that might have been a reason why he stood close to CD. No evidence was provided. By video conference Mr Angelakos was able to appear for himself, and whilst there were occasions where he required statements or questions to be repeated, I consider he did so through inattention, rather than because of a hearing issue. There were no allegations that Mr Angelakos stood closely to mature female employees.

[693] Mr Angelakos accepted that it would be highly inappropriate to continue to step toward an employee that was attempting to put distance between themselves and him during a discussion. I accept Ms Mulenga’s findings that this constituted a breach of the Equal Opportunity Policy – Sexual Harassment.

Allegation 22 – closing the cool room door and discussing non-work related matters

[694] Only the allegation of Mr Angelakos offering unwanted assistance was substantiated with evidence to support the allegation. Ms Mulenga found that there had been a breach of the Code – What we expect from our team members/leaders.

[695] I accept Mr Angelakos’ evidence that he offered assistance in a chaotic cool room to a new employee, CD. While CD may have considered that she did not require the assistance, as she considered herself to be experienced, it was not unreasonable for Mr Angelakos to continue to offer assistance and clear some of the load. If CD considers that she needed to brush past Mr Angelakos in order to leave the heavily stocked room, it demonstrates that it was indeed, heavily stocked, and Mr Angelakos’ assistance was valuable.

[696] I do not accept Ms Mulenga’s findings that this constituted a breach of the Code – What we expect from our team members/leaders.

Allegation 23 – speaking firmly to CD

[697] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Code – What we expect from our team members/leaders.

[698] I accept Mr Angelakos’ evidence that he was concerned that stock requiring refrigeration was left outside for 25 minutes, and this was causing him concern. I do not consider the way that he spoke to her be unreasonable.

[699] I do not accept Ms Mulenga’s findings that this constituted a breach of the Code.

Allegation 24 – speaking aggressively to CD for misplacing RF gun

[700] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Code – What we expect from our team members/leaders.

[701] Having considered all of the evidence I accept that Mr Angelakos was a little authoritative in handling this situation. He had already had some run-ins with CD, and it should have been clear to him as a leader that CD was assertive and would not necessarily bend to his will.

[702] That being said, CD was dismissive of Mr Angelakos’ authority, and she was deciding, with Ms van Eykelenborg’s encouragement, that she would come to him when she had finished the rubbish. For a new employee, it was inappropriate for her to decide if she would immediately respond to the Duty Manager’s request.

[703] I accept Mr Angelakos’ evidence that he was concerned as to the RF gun’s whereabouts, and he considered CD’s concern to be minimal and apathetic. I am mindful, however, of later evidence that concludes that Mr Angelakos was sorry for having spoken so harshly to CD, and sought the involvement of Ms van Eykelenborg to apologise to CD on his behalf.

[704] Accordingly, I accept Ms Mulenga’s findings that this constituted a breach of the Code – What we expect from our team members/leaders.

Allegation 25 – dairy waste bucket

[705] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Code – What we expect from our team members/leaders.

[706] I am faced with two competing statements; Mr Angelakos either said to CD, “You have an attitude problem”, or he said to her, “What’s with the attitude?” I prefer CD’s evidence and conclude that he said to her, “You have an attitude problem”.

[707] I accept it was appropriate for CD, by this stage, to inform Mr Angelakos that she required a third party present when they needed to speak. In the short amount of time she had been at the store she had lost trust in him and did not like him. I do not accept Mr Angelakos’ evidence that he had not given CD any reason to feel unsafe speaking to him alone.

[708] I also accept CD’s evidence that Mr Angelakos served at a register right behind hers when there were other options available. Mr Angelakos confirmed that he asked her if he could speak to her yet and she declared that he could not. She was upset with him and felt unsafe.

[709] On account of Mr Angelakos stating that CD has an attitude problem, I accept Ms Mulenga’s findings that this constituted a breach of the Code – What we expect from our team members/leaders.

Allegation 26 – threats not to make complaints

[710] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Equal Opportunity Policy – Victimisation.

[711] I accept that Mr Angelakos was at a disadvantage in not being able to cross-examine Ms Kanowski. However I prefer her statement that Mr Angelakos said to her, “Laura, be careful next time you think to complain about me” over Mr Angelakos’ inability to recall the incident.

[712] It is a very serious allegation to make that one has been threatened over making complaints. I accept the findings, and not that Ms Kanowski was witnessed to be visibly shaken and upset following this incident.

[713] I accept Ms Mulenga’s findings that this constituted a breach of the Equal Opportunity Policy – Victimisation.

Allegation 27 – odd behaviour – unable to be substantiated, no breach

Allegation 28 – “I’m the boss, you have to do what I say”

[714] Ms Mulenga determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Code – What we expect from our team members/leaders.

[715] I acknowledge that Mr Angelakos cannot recall the incident. However, as much as an employee might not think it suitable that they move from the service counter to fill a trolley of loose stock, if that is what the Duty Manager requires, I consider it to be a reasonable direction.

[716] In context, I don’t consider the statement, “I’m the boss, you have to do what I say” to be unreasonable.

[717] I do not accept Ms Mulenga’s findings that this constituted a breach of the Code – What we expect from our team members/leaders.

Allegation 29 – following her around the store while shopping

[718] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Code – What we expect from our team members/leaders.

[719] As per my findings at allegation 14, I accept Ms Mulenga’s findings that this constituted a breach of the Code – What we expect from our team members/leaders.

Allegation 30 – work faster, hurry up

[720] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Code – What we expect from our team members/leaders.

[721] I accept that Mr Angelakos abruptly said to Mr Hassal, “Work faster, better, hurry up”, and “Too bad, it’s not good enough, do better anyway”, and directed at Mr Hassal, “When I tell someone to do something I expect them to do it”.

[722] I accept that these are boorish statements to make, especially to somebody with a medical condition which might result in them working slowly than others. However I accept Mr Angelakos’ evidence that he was trying to get Mr Hassal to work faster as he was falling behind. In the hustle and bustle of nightfill, while it was not best-practice management, given that it was not repeated statements beyond what is stated above, I do not agree that it constituted overbearing management.

[723] I do not accept Ms Mulenga’s findings that this constituted a breach of the Code – What we expect from our team members/leaders.

Allegation 31 – not to touch anybody past the elbow – touch on shoulder substantiated, but comment not. Touch on shoulder not unwelcome at time it was made, no breach

Allegation 32 – preferential treatment

[724] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Code – What we expect from our team members/leaders.

[725] I accept that Mr Angelakos was at a disadvantage in not being able to cross-examine KL. However, I prefer her statement that she made alerting Coles to the preferential treatment afforded to her by Mr Angelakos.

[726] There is sufficient witness evidence to satisfy me that Mr Angelakos gave preferential treatment to KL. I do not accept his evidence that he gave assistance to all team members doing nightfill. I conclude that he gave preferential treatment to KL because he was attracted to her.

[727] I accept Ms Mulenga’s findings that this constituted a breach of the Code – What we expect from our team members/leaders.

Allegation 33 – inquiring about personal life

[728] Ms Mulenga determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Code – What we expect from our team members/leaders.

[729] I accept that Mr Angelakos said to KL things such as, “Why haven’t you been at work?”, “Have I done something wrong?”, and “When will I see you again?” Further, I accept that he said to her, “You never work anymore”, “You only work when I’m not here”, and “Why don’t you work anymore?”

[730] Mr Angelakos stated that all of the above statements were fabricated and not true. I do not accept his evidence. I consider that he was infatuated by KL, and had become a pest. He was not her friend or potential lover; he was her Duty Manager when she was doing nightfill. She should have been largely free to do perform her work alone.

[731] I accept Ms Mulenga’s findings that this constituted a breach of the Code – What we expect from our team members/leaders. I would have gone further to find that this constituted sexual harassment.

Allegation 34 – repeated requests to become Facebook friends

[732] Ms Mulenga determined that the allegation to connect on Facebook was substantiated with evidence to support. She determined that the allegation regarding a comment on appearance was substantiated on the balance of probabilities. She found that there had been a breach of the Equal Opportunity Policy – Sexual harassment.

[733] Mr Angelakos denied all allegations except for requesting he and KL become Facebook friends for $10 a month, to be paid by her. He denied having looked her up on Facebook and comparing her profile picture to how attractive she is in real life. I do not accept Mr Angelakos’ evidence.

[734] I conclude that Mr Angelakos repeatedly requested KL become his Facebook friend, and I accept that this made her very uncomfortable.

[735] I accept Ms Mulenga’s findings that this constituted a breach of the Equal Opportunity Policy – Sexual Harassment.

Allegation 35 – speaking poorly to nightfill dairy staff

[736] Ms Mulenga determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Code – What we expect from our team members/leaders.

[737] As per my findings relevant to allegation 30, I do not accept Ms Mulenga’s findings that this constituted a breach of the Code – What we expect from our team members/leaders.

Allegation 36 – suggesting a relationship in ‘another life’ – unable to be substantiated, no breach

Allegation 37 – inquiries about KL’s sister

[738] Ms Mulenga determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Code – What we expect from our team members/leaders.

[739] Mr Angelakos stated that he could not remember the incident. I accept Mr Angelakos could make inquiries about KL’s friend. In a regional town it is not an unusual inquiry to make. I do find, however, that he said to KL, “No it doesn’t, I bring you here, you come to see me”. Such a statement is unnecessary and creepy. KL is a young woman, married with children. She didn’t need her 52 year old Duty Manager to say such a ridiculous thing.

[740] I accept Ms Mulenga’s findings that this constituted a breach of the Code – What we expect from our team members/leaders.

Allegation 38 – standing within 10cm of KL

[741] Ms Mulenga determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Equal Opportunity Policy – Sexual harassment.

[742] Mr Angelakos has form in standing far too close to young female members of staff. I do not accept it to be a baseless and vague allegation as asserted by Mr Angelakos. I accept that it occurred and KL attempted to brush Mr Angelakos off while she was performing her work.

[743] I accept Ms Mulenga’s findings that this constituted a breach of the Equal Opportunity Policy – Sexual Harassment.

Allegation 39 – inappropriate inquiries about KL’s attribute

[744] Ms Mulenga determined that the allegation was substantiated with evidence to support the allegation. She found that there had been a breach of the Equal Opportunity Policy – Sexual h=harassment.

[745] Mr Angelakos confirmed that this conversation and examination of KL’s attribute occurred. He stated that he didn’t think KL was uncomfortable. There was no reason for Mr Angelakos to ask KL if she thought he might look good with the same attribute.

[746] His positioning over her shoulder was far too close to an employee shopping in-store. His inquiries were clearly unnerving and inappropriate. I conclude that he made such inquiries because of his (unwelcome) attraction to KL.

[747] I accept Ms Mulenga’s findings that this constituted a breach of the Equal Opportunity Policy – Sexual Harassment.

Conclusions on s.387(a)

[748] I have considered the cases of Sapienza and Homer as referred to by Coles in its submissions. I consider that both of those cases, and particularly Sapienza, are apposite to the present matter and Mr Angelakos’ conduct.

[749] In Sapienza, it was found that Mr Sapienza had admitted to asking for and coming into physical contact with several female employees of the respondent’s client (customers), including hugging and placing his arm on customers’ hips. Mr Sapienza had told two customers that they had missed his birthday and had said to them, “Where’s my kiss?”, with the customers obliging with a kiss on his cheek. Considering that conduct, Deputy President Bull stated: 122

“[43] If Mr Sapienza did not know or appreciate that it is inappropriate asking 18 year old females for a kiss and indulging in the practice of hugging as a greeting or goodbye, which may not be reciprocated willingly by much younger persons, he ought to.”

[750] Further, Mr Sapienza submitted that his conduct could be explained by his Italian heritage and his consequential familiarity with showing affection and submitted that he had considered his physical encounters with other staff to be ‘consensual and friendly’. 123 Deputy President Bull did not accept Mr Sapienza’s submissions, stating that:124

“[37] …Despite Mr Sapienza's explanation that his conduct was due to his Italian heritage and being of an affectionate nature, the actions were improper, unprofessional and naive, to say the least.

…

[42] …The explanation provided by Mr Sapienza of showing affection due to his Italian heritage falls short of justification for such behaviour towards otherwise unrelated persons. This is a complete and distinct difference from how one may conduct themselves with physical familiarity towards friends or in a family environment.”

[751] Deputy President Bull also gave regard to the considerable age difference between Mr Sapienza and the female customers that he had requested physical contact from. 125

[752] In Abarra, it was found that Mr Abarra had created a ‘weird and dirty atmosphere at work’ by allowing conversations of an intimate nature to occur in the workplace and by himself making personal comments or having discussions about the appearance of young female staff members. Although denying that he had made some sexually-explicit comments, Mr Abarra also submitted that his comments were just jokes, that he was just a friendly person, that his comments were flattering, that his comments were not limited to young female staff members and that because the staff members in question had not objected to his comments, they could not be considered offensive and therefore did not breach the behavioural standards governing Mr Abarra’s employment.

[753] Considering the above conduct and Mr Abarra’s submission, Commissioner Harper-Greenwell found that Mr Abarra’s comments were, ‘a rather blatant form of benevolent sexism which has no place in the workplace’. 126

[754] I have considered the Code and the Equal Opportunity Policy, and I conclude that they are appropriate and reasonable workplace policies, and the requirement not to breach the documents is an important employment obligation to employees. Mr Angelakos was in a senior role at the store, and had recently undertaken further training in leadership. As a mature gentlemen, familiar with the Code and the EO Policy, he should have, or ought to have known that his conduct amongst young, female employees, some still at school, needed to be appropriate.

[755] Whilst noting that where I have concluded there are breaches of the Code and EO Policy it is on the balance of probabilities, the most serious breach of the Code and EO Policy related to Mr Angelakos’ conduct to AB, a school-age employee. I conclude that while Mr Holloway was the Store Manager, Mr Angelakos engaged in inappropriate behaviour, including touching. This inappropriate conduct was escalated upon Mr Holloway leaving and there being a period of one week without a Store Manager.

[756] In my view, Mr Angelakos tested the water with AB on 27 January 2018 in touching her inappropriately and unnecessarily on the small of her back for a period of approximately five seconds. This made her feel uncomfortable, and the defence of there being somewhat limited room in the service desk area is not accepted, especially as he never had reason to touch older, larger employees in the small of their back to manoeuvre around the space. I consider that Mr Angelakos took the opportunity of being without a Store Manager to engage in this conduct.

[757] Having escaped challenge, he repeated the action three times the following day. There is no satisfactory explanation Mr Angelakos can provide for this conduct, other than he expected if AB was upset, she should have told him so.

[758] Quite rightly, she informed her parents that night and they encouraged her to speak to a manager, which she did. It was promptly addressed and investigated. Noting that the ‘#metoo’ movement commenced gaining traction in late 2017, it was brave and entirely appropriate for AB to come forward with her allegations and allow them to investigated. Of course victims of workplace sexual harassment of both sexes have come forward with allegations for scores of years, but in the year 2018, the encouragement to do so, and facilitation of inquiry was there, at least in this workplace.

[759] Mr Angelakos’ initial interest in CD’s attractiveness, and his ongoing interest in KL, bordering on, in my view, an obsession also was unacceptable. He paid far too much unwelcome interest in KL and made her very uncomfortable in the workplace. In the extremely short time he worked with CD, it wasn’t just CD who was uncomfortable; many of the staff formed the impression that he was unnecessarily close to CD or spent too much time with her.

[760] Another of the most serious breaches was the victimisation of Ms Kanowski in allegation 26. It is intolerable for a senior manager to make threats towards an employee for making a complaint about them. In my view, Mr Angelakos engaged in inappropriate behaviour towards employees who challenged him, or he felt made him look like he was not doing his job well.

[761] There was no suggestion that Mr Angelakos was a poor performer. Yet, in scenarios where a junior employee called a priority call, he overreacted and became overbearing, making threats to employees. I conclude on the balance of probabilities that Mr Angelakos suggested retaliation to not only Ms Kanowski, but to EF, Linda Daniels and to Trudy Maher. This is unacceptable conduct.

[762] Having taken account of the fact that Coles decided to terminate Ms Angelakos’ employment on all of the breaches found by Ms Mulenga to have occurred, and having determined that some of those were improperly found, I am satisfied that many of the allegations, for which I have found there is a breach, constitute a valid reason for the dismissal. Not all of them would, of course, constitute a valid reason for dismissal as some are not as significant as others. However, where Mr Angelakos breached the EO Policy with respect to touching AB on 27 and 28 January 2018, and where he breached the EO Policy in victimising Ms Kanowski, these alone are valid reasons for the dismissal.

[763] Having found that there are at least two serious matters that constitute a valid reason for the dismissal, I do not consider it necessary to determine in respect of all of the other findings which ones would also constitute a valid reason for the dismissal.

s.387(b) - Whether the person was notified of that reason

[764] It is not disputed by either party that Mr Angelakos was informed of the reasons for his dismissal by Mr Morton and Ms Bidewell during the meeting of 9 March 2018. The findings of substantiated allegations only are set out in the Discussion Record. None of the unsubstantiated or unable to be substantiated findings are in the Discussion Record. Accordingly I am satisfied that there was no distraction, and it was clear, on reading the Discussion Record what the adverse findings were.

[765] The evidence before me is that Mr Morton and Ms Bidewell summarised Ms Mulenga’s findings to Mr Angelakos and sought his further written response. After considering his response, Mr Morton and Ms Bidewell informed Mr Angelakos that as a result of the findings that had been substantiated against him, Coles was considering terminating his employment.

[766] I have found above that there were valid reasons for Mr Angelakos to be dismissed. Those reasons were the allegations made against him by the complainants that were found by Ms Mulenga to be substantiated and in breach of the Code or the EO Policy. I am satisfied that Mr Angelakos was made aware of Ms Mulenga’s findings prior to his dismissal.

[767] I am satisfied that Mr Morton and Ms Bidewell notified Mr Angelakos the reason for the dismissal during the meeting on 9 March 2018.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[768] I note that Mr Angelakos chose to seek legal advice before preparing his response to each of the 39 allegations. He was provided with the written allegations on 23 February 2018, but did not begin working on his written responses until 1 March 2018.

[769] It is reasonable to expect that given he was on paid suspension, and the allegations were articulately put to him, with spaces ready for his response, he should have worked on the document between 23 and 28 February 2018.

[770] I am satisfied that he was provided with an opportunity to respond.

[771] Upon Ms Mulenga deciding some of the allegations were unsubstantiated or unable to be substantiated, Mr Angelakos was then faced with a slightly reduced number of allegations. He was aware that they would be discussed during the 9 March 2018 meeting and he would be provided with an opportunity to respond.

[772] On the evidence before me, I am satisfied that he was provided with an opportunity to respond in the written material, in the telephone call with Ms Mulenga on 2 March 2018, and during the meeting of 9 March 2018.

s.387(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

[773] Mr Angelakos was offered the opportunity to have a support person at his interview with Ms Mulenga on 23 February 2018 and at the outcome meeting with Ms Morton and Ms Bidewell on 9 March 2018. On the evidence before me, Mr Angelakos was not refused the opportunity to have a support person at either of those meetings.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[774] The difference between ‘performance’ and ‘conduct’ was considered by the Full Bench of the Australian Industrial Relations Commission, as this Commission was then known, in the appeal case of Annetta v Ansett Australia Ltd. 127 The employee in that case, Mr Annetta, worked in the engine maintenance division of the now defunct Ansett airline. Mr Annetta had been dismissed after:

•  he had refused to complete a job which he considered would require two people to complete and the second person to complete the job did not know how to do the job. Mr Annetta knew that he would be expected to teach the other employee how to do the job and he would be required to do most of the work;

•  he had not fixed a mistake made by another worker on a gearbox when asked to fix that mistake;

•  he had brandished a home-made knife at another employee. Mr Annetta claimed at the time and at the hearing that he had been acting in self-defence or retaliation.

[775] The notice of termination provided to Mr Annetta stated that he had been dismissed, ‘on the basis of 3 refusals of duty, brandishing a knife and unacceptable behaviour as outlined in the final warning on your personal file’. 128

[776] In the decision at first instance, Senior Deputy President Acton considered the predecessor section to s.387(d) of the Act and stated, “I am not satisfied s.170CG(3)(d) is relevant to this matter, given I have found there was a valid reason for Mr Annetta's termination related to his conduct as opposed to unsatisfactory performance by him.” 129

[777] It was submitted on appeal that Mr Annetta’s refusal to undertake certain jobs should be characterised as ‘unsatisfactory performance’ and that Mr Annetta had been terminated without being warned about that performance, and the Senior Deputy President had been bound to consider the failure to warn Mr Annetta. The Full Bench considered the predecessor section to the current s.387(e) of the Act (which is expressed in similar terms) and whether warnings of unsatisfactory conduct were relevant to the consideration of this criterion, and stated: 130

“[16] …In approaching the construction of the term "unsatisfactory performance" it may be significant that in describing a valid reason s.170CG(3)(a) distinguishes between capacity and conduct. Although neither term appears in s.170CG(3)(d) we think that performance is more likely to relate to capacity than to conduct. The preliminary question posed by paragraph (d) itself is whether the appellant's employment was terminated for unsatisfactory performance. While in a limited sense it was, because the misconduct was constituted by a refusal to perform work, we do not think that the conduct is unsatisfactory performance within the meaning of the paragraph. The paragraph is intended to refer to the level at which the employee renders performance including factors such as diligence, quality, care taken and so on. While there might be some overlap between the concept of unsatisfactory performance and the concept of misconduct, for example in relation to neglect of duty or poor timekeeping, misconduct of the kind which occurred in this case is in a different category. On one reading of the relevant paragraph the Senior Deputy President may have implied that conduct can never be categorised as unsatisfactory performance. Whether she did so is immaterial in this case. We are satisfied that the appellant's employment was not terminated for unsatisfactory performance within the meaning of that term in s.170CG(3)(d) [emphasis retained].”

[778] In the present matter some evidence has been given, particularly by Ms Bainbridge, that there were some deficiencies in Mr Angelakos’ performance in the Duty Manager position. Ms Bainbridge’s evidence is that she gave Mr Angelakos feedback in relation to multiple aspects of his performance and conduct in the Duty Manager position throughout his employment at Coles Moranbah. I do not consider that any of the informal ‘coaching’ comments directed to Mr Angelakos by Ms Bainbridge would qualify as warnings to Mr Angelakos that his performance was unsatisfactory.
[779] It could be suggested that Mr Angelakos’ conduct as the Duty Manager towards other staff within the store was also related to his capacity to fulfil that position, particularly in light of the additional responsibilities imposed on Mr Angelakos as a leader under the Code. Any overlap in that respect is similar to the concept put forward by the Full Bench in Annetta v Ansett Australia Ltd as extracted above. However, similar to the conclusion reached by the Full Bench in that case, I consider that the matters alleged against Mr Angelakos that formed the basis of Ms Mulenga’s investigation and subsequently the reasons for his dismissal were related to his conduct, and not his capacity or performance in the Duty Manager position, as is contemplated by s.387(e) of the Act.

[780] I accept Coles’ submission that Mr Angelakos was dismissed for misconduct and not for performance. I consider that this criterion is not relevant to my decision in this matter.

s.387(f) - Whether Coles’ size impacted on the procedures followed

[781] It is not contested between the parties that Coles is a very large employer. In its original Form F3 response to Mr Angelakos’ application it was stated that it employs approximately 100,000 people throughout Australia, and 25,000 within Queensland alone. Both parties acknowledge that Coles does not lack for human resources expertise.

[782] Mr Angelakos submitted that Coles’ size and its dedicated human resources department meant that the receipt and initial handling of the complaints against him, as well as Ms Mulenga’s investigation, could have been handled better.

[783] I do not find that Coles’ size impacted on the procedures followed. This matter is a neutral consideration.

s.387(g) - Whether the absence of a dedicated resource management specialist impacted on the procedures followed

[784] Coles has dedicated human resources expertise. This matter is a neutral consideration.

s.387(h) - Other matters

[785] Mr Angelakos has posited two possible theories; firstly that junior employees conspired individually or collectively to have him removed from the role, and secondly, that Ms Bainbridge solicited statements from employees who would not have made a statement but for her prompting. He considered that Ms Bainbridge, her daughter Ms Kanowski, and Mr Miels were in concert together.

[786] It is clear that Mr Holloway did not fulfil his duties as a Store Manager to an appropriate standard. He has been issued a first and final warning by Coles, and in correspondence seen by the Commission, made admissions to Coles that he was not paying appropriate attention to his duties.

[787] I do not accept Coles’ submission that to the extent Mr Holloway failed to escalate issues raised with him that he was aware of throughout 2017, he was acting outside of his authority as Store Manager, and his inaction should not be attributed to Coles. It is an extraordinary claim to make. Mr Holloway was not acting outside of his authority; he simply was not doing his job to an appropriate standard. He had the care of young people in his employ, and there were sufficient grumblings to have warranted his attention.

[788] Coles is one of the largest employers in the country. If an Area Manager can’t visit the store at least twice a year and speak with employees and supervisors, and seek their views on how management is performing, that is a dreadful state of affairs. A regional Store Manager should not be the dead end for the making of complaints; a relationship between Mr Holloway’s manager and store employees should be par for the course. Further, Ms Bainbridge’s evidence at [81] was that Ms Bidewell was implored to assist Mr Holloway and simply directed the collection of written statements and performance management of Mr Angelakos. An Area Manager visit allowing conversation with employees might have alerted head office to there being a concern among employees that Mr Angelakos was acting inappropriately and no confidence was held in Mr Holloway to do anything about it.

[789] I do not, however, accept Mr Angelakos’ theories that there was a conspiracy against him. His actions in touching AB on her back repeatedly over two days was the catalyst for the making of a serious written complaint against him. At the same time this was occurring, CD, a very new employee had already had enough and she too was making complaints in-store.

[790] On Mr Morton’s arrival, he was faced with serious allegations from young staff members, and an instruction from head office is made to determine if there are any other complaints against Mr Angelakos. I have no issue with this course of events.

[791] When the complaints are compiled, the sheer volume is concerning. It is no wonder Mr Angelakos was stood down from his employment while the investigation was undertaken.

[792] As is evident from my findings on each of the substantiated allegations, the large majority of them I accept. There is no conspiracy against Mr Angelakos; his conduct towards some employees was inappropriate.

[793] I accept there was some prejudice to Mr Angelakos in the investigation given some of the complaints made against him were quite old. However the most serious allegations, those of AB, CD and KL were not old complaints; they were very fresh complaints.

[794] I also accept that Mr Angelakos probably considered that he was a fun and pleasant manager, and he genuinely considered that he had a good relationship with employees, including young employees. It is an important responsibility being the Duty Manager. There are many people to manage, all with very different reasons for choosing to work at Coles. For some it might be their first job. For others they might be working nightfill to bring in extra money into the family budget, and largely not have to interact with too many people. Other people make careers out of working for a supermarket.

[795] It could be said that Mr Angelakos tried hard, perhaps too hard, to engage on a social level with some employees. I do not consider that it was always based on his feelings of attraction to some employees; he appeared to me to be an older man with a reasonable amount of responsibility, spending his afternoons and nights at Coles trying to appear to his employees to be fun.

[796] I note that some employees attempted to coach Mr Angelakos where Mr Holloway lacked any interest in doing so. It appeared to me that Mr Angelakos and Ms Channells got along quite well, and as a mature woman and a manager, she made attempts to guide him in his dealings with employees. I formed the impression that he respected her very much, but did not make the necessary improvements.

[797] Relevant to Coles’ investigation of the allegations, I consider that Ms Mulenga did a good job, and took a professional view of the matter before her. She made appropriate findings with the material before her, and didn’t, in my view, jump to unnecessary conclusions of substantiation. Her findings were reasonable with the information she had before her. I accept her evidence as to what Mr Angelakos said to her during their 8 March 2018 phone call, and consider that Mr Angelakos acted disgracefully. I note, however, that this did not form any of the reason for the dismissal, and I have not considered Mr Angelakos’ behaviour on this matter in my deliberation.

[798] I consider it entirely appropriate that at meeting was held with him on 9 March 2018. I hold concerns, however, that Mr Angelakos was afforded a small window during the meeting to learn that Coles was considering terminating his employment and when this took place.

[799] The evidence is a little unclear as to when the meeting broke, and how many breaks there were. What is clear is that after a break Mr Angelakos was told that Coles was considering terminating his employment and he needed to show cause why his employment should not be terminated. He was afforded some time to add four additional lines to his written response. The evidence is not clear as to whether this was done while Mr Morton and Ms Bidewell were present in the room.

[800] I appreciate that Mr Angelakos had been informed the day before of the findings of the investigation, but to learn during the meeting that he needed to show cause, and for the termination to be effected, it appears to me to be somewhat rushed.

[801] I am not satisfied that appropriate consideration was given to Mr Angelakos’ pleadings of mitigation relevant to living in a regional area, living in subsidised housing, having to relocate his family and the like. Ms Bidewell’s evidence is that she was aware that he had children, but not that they were of primary school age. It is her evidence that the decision makers were aware that Coles would need to relocate Mr Angelakos and his family to Mackay ‘at least’.

[802] I determine that even if the meeting had been suspended for a day or more, and Mr Angelakos was afforded additional time to plead mitigation in a more formal show cause response, the employment would have still ended for the same reasons. At most, I consider that Mr Angelakos would have continued in his employment for one to two days. I accept that Coles had lost all trust and confidence in Mr Angelakos, and he could not have returned to the store on account of his failure to accept his conduct, his inability to recognise his personal interactions with staff members (such as standing too close), and the potential for retribution towards employees.

[803] Relevant to the consideration of harshness, it was acknowledged that in a one-supermarket town, Coles would need to repatriate Mr Angelakos and his family to ‘at least’ Mackay. This discussion then grew into a request for relocation to Sydney, initially rejected by Coles and then agreed. At this stage Mr Angelakos’ family had already returned to Sydney and he did not accept the offer made by Coles.

[804] At the conference I suggested that perhaps he could be reimbursed for his relocation costs to Sydney even after they had been expended. Mr Angelakos said he would make inquiries. I consider Coles’ offer to relocate Mr Angelakos and his family to Mackay to be reasonable in all the circumstances.

[805] I am mindful that with eight years’ service for the purposes of long service leave, pro rata payment pursuant to the Industrial Relations Act 2016 (Qld) is not available to Mr Angelakos unless a finding is made that he has been unfairly dismissed. 131

[806] Relevant to Mr Angelakos’ submissions that he should have been issued a warning instead of being dismissed, I am satisfied that Coles was entitled to conclude that there was no basis for confidence that Mr Angelakos would comply with the Code and EO Policy in future if his employment continued. For that reason Mr Angelakos’ dismissal cannot fairly be characterised as a disproportionate response to his conduct, and the detrimental consequences which have resulted from the dismissal must be considered to be the inevitable result of the fact that Mr Angelakos’ conduct rendered the continuation of his employment untenable.

[807] For the reasons stated above, I consider that Mr Angelakos would likely have caused some retribution on some employees if he had returned having received a warning. Mr Angelakos largely does not accept that he engaged in the conduct complained of, and I do not consider that a warning would have resulted in an acceptance of the conduct.

Post-employment conduct

[808] I have not considered Mr Angelakos’ post-employment conduct in making this unfair dismissal determination and it has had not any bearing on my determination. Mr Angelakos’ post-employment conduct would only have been considered had I found that he had been unfairly dismissed and only in consideration of whether it may have been appropriate to order Mr Angelakos’ reinstatement.

Conclusion

[809] Having considered each of the matters specified in s.387 of the Act, I am not satisfied the dismissal of Mr Angelakos was harsh, unjust or unreasonable.

[810] Accordingly, I find that Angelakos’ dismissal was not unfair. The application is dismissed and an Order [PR704449] to that effect will be issued with this decision.

Seal of the Fair Work Commission with member’s signature.

COMMISSIONER

Appearances:

Mr Peter Angelakos, Applicant.

Mr Will Spargo, Lander & Rogers, for the Respondent.

Hearing details:

Brisbane, Sydney (by video link), Moranbah (by videolink); 17, 18, 19, 20 September 2018.

Final written submissions:

Applicant’s closing submissions, 10 October 2018.

Respondent’s closing submissions, 16 October 2018.

Printed by authority of the Commonwealth Government Printer

<PR703582>

 1   Angelakos v Coles Supermarkets Aust. Pty Ltd T/A Coles Supermarkets [2018] FWC 3407.

 2   Form F2 – Application of Mr Peter Angelakos, 29 March 2018, Part 3.2.

 3   PN886 – PN891; PN904 – PN908.

 4   Statement of Mr Patrick Morton, 3 August 2018, Annexure PFM-1.

 5   Statement of Mr Patrick Morton, 3 August 2018, Annexure PFM-2.

 6   Statement of Ms Mo Mwango Mulenga, 3 August 2018, Annexure MMM2.

 7   Ibid, Annexure MMM3.

 8   PN1308 – PN1314; PN1949 – PN1951.

 9   Statement of Ms Mo Mwango Mulenga, 3 August 2018, Annexure MMM8.

 10   Statement of Ms Mo Mwango Mulenga, 3 August 2018, Annexure MMM9.

 11   PN1350 – PN1354.

 12   PN1363 – PN1366; PN1428 – PN1452.

 13   PN559 – PN568.

 14   PN2921 – PN2960.

 15   PN108.

 16   PN129.

 17   PN4434 ; PN4442 – PN4449; PN4490 – PN4495.

 18   PN121.

 19   PN4397 – PN4400.

 20   PN4421.

 21   PN4392.

 22   PN4500.

 23   PN4504 – PN4506; PN4645 – PN4658.

 24   Ibid. at AB-1.

 25   PN691.

 26   PN700 – PN702.

 27   PN731 – PN740.

 28   PN784 – PN802.

 29   PN755 – PN771.

 30   Statement of CD, 3 August 2018, JAC-1.

 31   PN361 – PN364.

 32   PN891 – PN893; PN2440 – PN2448.

 33   Statement of Ms Mo Mwango Mulenga, 3 August 2018, Annexure MMM14.

 34   PN1378 – PN1403.

 35   PN1880.

 36   PN2028-PN2030.

 37   PN1950 – PN1952.

 38   PN2074 referring to Statement of Ms Mo Mwango Mulenga, Exhibit R2, Annexure MMM-3 at pg 4.

 39   PN2049 – PN2050.

 40   PN2101 – PN2112.

 41   PN2113.

 42   PN2117 – PN2127.

 43   Statement of Mr Patrick Morton, 3 August 2018, Annexure PFM-13.

 44   Annexure MMM18 to the Statement of Ms Mo Mwango Mulenga.

 45   Annexure ALS-2 to the Statement of Ms Alannah Slater, Exhibit R15.

 46   Ibid. at Annexure ALS-1.

 47   Statement of Mr Patrick Morton, Exhibit R3.

 48   Ibid at PFM-1 and PFM-2.

 49   Ibid at PFM-3 to PFM-13.

 50   Statement of Mr Patrick Morton, 3 August 2018, [37].

 51   PN2440 – PN2448.

 52   PN2503 – PN2519.

 53   PN2628, PN2633, PN2660-PN2667.

 54   PN2678.

 55   PN2685-PN2688.

 56   PN2697-PN2700.

 57   Statement of Ms Alina Bidewell, Exhibit R16.

 58   Statement of Ms Alina Bidewell, 3 August 2018, [35] – [36].

 59   PN5122 – PN5126.

 60   Statement of Ms Alina Bidewell, 3 August 2018, [48].

 61   PN4932.

 62   PN4977-PN4978.

 63   PN5096 – PN5125.

 64   PN5086 - PN5095.

 65   PN5154 - PN5155.

 66   PN5128.

 67   PN5282 – PN5285.

 68   PN5094.

 69   PN5140 – PN5155.

 70   PN5203 – PN5204; PN5346.

 71   Statement of IJ, Exhibit R6.

 72   PN3085.

 73   PN3122-PN3123.

 74   Statement of Ms Leanne van Eykelenborg, Exhibit R7.

 75   PN3172-PN3174.

 76   PN3249-PN3252.

 77   PN3214-PN3215.

 78   PN3212.

 79   PN3255 – PN3265.

 80   Statement of Ms Linda Daniels, Exhibit R4.

 81   PN2739 – PN2740.

 82   PN2768 – PN2775.

 83   PN2895 – PN2903.

 84   PN2780-PN2785.

 85   PN2739 - PN2740; PN2821.

 86   PN2786; PN2798.

 87   PN2836 – PN2856.

 88   Statement of Mr Anthony Wood, Exhibit R9.

 89   PN3585 - PN3605.

 90   PN3553.

 91   Statement of Ms Trudy Maher, Exhibit R10.

 92   PN3672 - PN3673; PN3679.

 93   PN3692 - PN3696.

 94   PN3739 – PN3765.

 95   Statement of GH, Exhibit R11.

 96   PN4007-PN4010.

 97   PN4033.

 98   PN3959 - PN3973.

 99   Statement of Ms Desley Channells, Exhibit R13.

 100   PN4232-PN4237.

 101   PN4260 - PN4271.

 102   PN4286-4287.

 103   PN4289-4290.

 104   Statement of Ms Yueh Ching (Fiona) Lin, Exhibit R12.

 105   PN4155 - 4158.

 106   PN4126 – PN4135.

 107   (1995) 185 CLR 410, [465].

 108   Sayer v Melsteel [2011] FWAFB 7498 at [20].

 109   PN5426 – PN5456.

 110   Annexure MMM3 to the Statement of Ms Mo Mwango Mulenga, Exhibit R2.

 111   PN1596 – PN1685.

 112   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 113   [2018] FWC 607.

 114   [2018] FWC 3761.

 115   Streeter v Telstra Corporation [2008] 270 IR 1.

 116   PN2907.

 117   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

 118   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 119   Rail Corporation New South Wales v Vrettos (2008) 176 IR 129.

 120   King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019 at [24].

 121   [2013] FWCFB 6191.

 122   [2018] FWC 607, [43].

 123   [2018] FWC 607, [27].

 124   [2018] FWC 607, [37], [42].

 125   [2018] FWC 607, [42].

 126   [2018] FWC 3761, [175] – [181].

 127   Print S6824, 7 June 2000, (2000) 98 IR 233.

 128   Ibid, [4].

 129   P. Annetta v Ansett Australia Ltd Print S2256, 10 January 2000, [24].

 130   Ibid, [16].

 131   Industrial Relations Act 2016 (QLD) s.95(4)(c)