| [2019] FWC 38 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Julia Bastoni
v
ORC International Pty Ltd
(U2018/6390)
DEPUTY PRESIDENT CLANCY |
MELBOURNE, 4 JANUARY 2019 |
Application for an unfair dismissal remedy.
[1] Ms Julia Bastoni has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, having been dismissed from her employment with ORC International Pty Ltd (ORC). Ms Bastoni seeks compensation in lieu of reinstatement.
[2] ORC terminated the employment of Ms Bastoni due to conduct it says amounted to breaches of its policies and procedures, in particular, ORC’s bullying and harassment policy.
[3] The matter was referred to conciliation on 23 July 2018 but did not resolve. Directions were subsequently issued on 27 July 2018 for the filing of material ahead of the Arbitration Conference/Hearing.
[4] I conducted a mention hearing via telephone on 11 September 2018, where both parties sought permission to be represented by a lawyer or paid agent pursuant to s.596 of the Act. I considered their oral submissions on this issue and having weighed the circumstances and considerations in s.596 of the Act, I granted permission for both parties to be represented. Mr Garry Dircks appeared for Ms Bastoni and Mr Andrew Maher appeared for ORC.
[5] During the Mention hearing, I also consulted with the parties as to their views on whether the matter should proceed by way of determinative conference or formal hearing. After consideration of the requirements of s.399(1) of the Act, I determined it would be most appropriate for the matter to be dealt with by way of a hearing.
[6] At the hearing on 11 October 2018, Ms Bastoni gave evidence in support of her application. For ORC, evidence was given by the following witnesses:
• Ms Lydia Smith, Manager – Talent, ORC;
• Mr Jake Ficnerski, Supervisor, ORC; and
• The Complainant, Supervisor, ORC.
[7] In closing written submissions, ORC requested that the Complainant not be identified by name in this decision and instead be assigned a pseudonym. A medical certificate was submitted in support of this request. Ms Bastoni did not object to this request in her final written submissions. I have taken into consideration the personal and sensitive nature of the events involving Ms Bastoni and the Complainant, and am satisfied that de-identifying the Complainant will not prejudice either of the parties. I have therefore determined it appropriate to anonymise the Complainant’s identity in this decision.
[8] Ms Bastoni says she commenced employment with ORC as a market research interviewer on 1 February 2010, while ORC put forward 6 May 2010 as her starting date. Either way, Ms Bastoni’s employment with ORC exceeded eight years. She was employed on a casual basis and was also a union delegate with the National Union of Workers (NUW).
[9] As a market research interviewer, Ms Bastoni worked in ORC’s phone room to conduct her work via Computer Assisted Telephone Interviewing (CATI) and reported to the supervisors rostered on shift with her. The Complainant was one of her supervisors.
[10] Both Ms Bastoni and the Complainant were rostered to work the same shift on 26 May 2018. There was a discussion between Ms Bastoni and the Complainant as to whether the heating should be turned on, as it was commonly accepted in the workplace that only supervisors were authorised to make that decision. Ms Bastoni wanted the heating turned on and so had made such a request to the Complainant. There is no dispute that in response to the Complainant commenting that she did not feel cold, Ms Bastoni replied that this was because the Complainant had “extra padding” 1 and that she subsequently made reference to the Complainant as having “natural extra padding”.2
[11] As to why she had made such comments, Ms Bastoni said:
• She was trying to make an argument to get the heater turned on;
• The Complainant had more padding than she and the others in the room at the time;
• It is a scientific fact that people with more body fat do not feel the cold as much as skinnier people and that is perhaps why the Complainant would not have felt the cold like she (Ms Bastoni) and the other colleagues were feeling it;
• Her conception of someone having “more body fat” was that they have more body fat than is healthy;
• The comments were not personal and she did not intend to hurt the Complainant’s feelings;
• She meant padding in terms of insulation and she did not mean to be derogatory;
• She did not think the Complainant would be so offended or take the comment so seriously given the context of their relationship; and
• She felt the Complainant would see the humour in her comments and did not intend to shame her.
[12] Ms Bastoni also said that the Complainant approached her about an hour after the comment was made and came within two inches of her face to threaten to send her home if another incident occurred. At the hearing, Ms Bastoni gave the following evidence:
“You said that was an hour later when she - you said that she threatened you?---When she threatened me - at the time of her threatening me I said to her, "I really didn't mean to hurt your feelings. I didn't mean anything personal about it at all. It's a scientific fact and I was merely pointing that out, that that's perhaps why you wouldn't feel the cold like we're feeling it." I was trying to make an argument to get the heater turned on because there was a number of us that were quite cold. It was - it would have been below 16 degrees and for, you know, and probably a lot lower than that.” 3
[13] The Complainant gave evidence that she was anxious, upset and humiliated by Ms Bastoni’s comments referring to her having “extra padding” and “natural extra padding” as she was concerned that other people nearby had heard the exchange. There was some discussion amongst management as to how to respond, the result of which was that the Complainant was to deliver a warning to Ms Bastoni conveying that if she persisted with such behaviour, she would be sent home.
[14] The Complainant denies delivering the warning in an intimidatory fashion and said:
“I approached Julia at her desk. I was actually kneeling on the ground. She was actually above me so - and it wasn't two inches away. I said "Julia, what you said to me is very inappropriate and against our policies and guidelines. I just need to give you a warning that if you proceed with this matter we will have to" - "I will have to send you home".” 4
[15] Mr Dircks suggested to the Complainant that she was not so devastated by the exchange with Ms Bastoni that she could not “confront” her and give her a warning. The Complainant’s evidence in reply to this proposition was she delivered the warning because she needed to empower herself and let Ms Bastoni know her behaviour was not acceptable.
[16] Ms Bastoni says she apologised to the Complainant. This was refuted by the Complainant in the following exchange:
“Now, the applicant did apologise to you didn't she?---No she didn't. She tried to rationalise it.
She said that she had not meant it?---Sorry?
She said that she hadn't meant it as a form of offense. I'll get the quote. "I didn't mean to hurt your feelings", she said that didn't she?---No, she said it wasn't a personal attack.
I put to you that she said - - -?---From what I recall.
- - - "That's not what I meant"?---Sorry, what are you reading from?
I'm reading from my notes, but I put to you that she said - - -?---And where were you - sorry.
- - - "I didn't mean to hurt your feelings. That's not what I meant"?---No.
She said that, didn't she?---I don't recall that, no. Sorry.
You don't recall it?---No, there was no apology.
So she might have said it?---There was no apology. There was no apology when I first spoke to her and there was no apology when she approached me at the desk.” 5
[17] The Complainant gave evidence that after she had given Ms Bastoni the warning, Ms Bastoni approached her at her desk and said that she had not made a personal attack on her and that it was a fact that people with extra weight/padding do not feel the cold. 6 She also said Ms Bastoni asked her not to report her because she was already on two warnings and would be terminated. At this point, the Complainant says her response was:
“Basically from that - when she said that I said "Please, Julia, you need to stop this. Go back to your desk" because this would have been almost action enough to send her home. I said "Don't continue again on this path. Please go back to your desk".” 7
[18] The Complainant says there was a further exchange that day in which Ms Bastoni insinuated that she (the Complainant) was going to breach the policy prohibiting the consumption of food at desks:
“…Okay. She basically - from there I was being approached at the desk and being asked not to write a report - further stressed and anxious, I went to go on break. I went and collected my food from the fridge and utensils, came back to my desk to collect my phone and go downstairs to where she then said "Ah, are you allowed to have" - she made mention about the food policy. And I said "Julia, I'm going on my break now".” 8
[19] On the evening of 26 May 2018, the Complainant made a formal complaint to ORC about the comments made by Ms Bastoni. At that time, the Complainant also raised a Facebook message she had received from Ms Bastoni on 7 April 2018.
[20] The Facebook message sent by Ms Bastoni to the Complainant had followed an incident at work on 7 April 2018. It arose from the Complainant first thinking she had seen Ms Bastoni using her mobile phone in the phone room in contravention of ORC’s Mobile Phone Policy. As she was not certain that she did in fact see Ms Bastoni use her mobile phone, the Complainant says she reminded Ms Bastoni she should not have her mobile phone out in the phone room. The Complainant says that she subsequently discovered Ms Bastoni using her mobile phone in the phone room later that day and sent her home pursuant to the Mobile Phone Policy.
[21] Both the Complainant and Mr Ficnerski gave evidence that prior to departing ORC’s premises, Ms Bastoni made a comment about how she could not afford to have her shift cut short and how sending her home was costing her money.
[22] It is not in dispute that later on 7 April 2018, Ms Bastoni sent the Complainant a Facebook message via its Messenger app (“Facebook message”), which said:
“Dear [the Complainant], if keeping your job means I have to lose mine, it’s a sad state of affairs. I realise I broke the rule and therefore pay for it, in fact, paid nearly $100 for it, which I can’t afford. Again, I take full responsibility. I might add, I was merely glancing and was more engrossed in my reading, which would have been more distracting (but don’t tell them). I find the rule demeaning and childish. I know you are a stickler for the rules but I wonder if they pay you enough to feel good about undercutting me? I don’t know. I am so frustrated with this job I hardly ever feel like coming in.” 9
[23] The Complainant said that following receipt of the Facebook message, she felt very anxious and intimidated by Ms Bastoni.
[24] There was some background to this incident on 7 April 2018. Ms Bastoni had been counselled in relation to breaching the Mobile Phone Policy several times, including on 16 January 2018 (a verbal warning by the Complainant), 19 January 2018 (sent home by the Complainant), 22 January 2018 (a meeting with Ms Fu Yue, Operations Manager for ORC, and Mr David Branigan, Operations Project Manager for ORC), 9 February 2018 (sent home by Mr Ficnerski), 13 February 2018 (disciplinary meeting with Ms Yue and Mr Branigan) and 16 February 2018 (first formal written warning).
[25] The Facebook message had initially been reported to Ms Yue, but the Complainant did not file a formal complaint to ORC as she submitted that she was concerned about causing Ms Bastoni to lose her job. Instead, the Complainant indicated to Ms Yue that she wished to raise her concerns with the NUW, with whom Ms Bastoni was a union delegate. It had been the hope of the Complainant that the NUW would speak to Ms Bastoni about her inappropriate conduct and behaviour so that she would not need to escalate the matter to ORC. The Complainant says that she spoke to Mr Tom Sayers of the NUW on or around 13 April 2018 and lodged a formal complaint with NUW about Ms Bastoni’s behaviour on 26 April 2018.
[26] The Complainant said she received no response from the NUW and so made a formal complaint about Ms Bastoni’s Facebook message to ORC on 18 May 2018. A response to the complaint had not progressed by the time the incident on 26 May 2018 occurred.
[27] On 30 May 2018, Ms Smith and Mr Michael Cummins, Regional Director – Data and Technology, convened a meeting with Ms Bastoni. There was a discussion about Ms Bastoni’s conduct on 26 May 2018. Ms Bastoni had initially declined the opportunity to bring a support person and did not appear to deny she had made the comments to the Complainant on 26 May 2018. However, the meeting adjourned when the Complainant’s complaint about the Facebook message was raised. This is recorded in a letter from ORC to Ms Bastoni dated 30 May 2018, which stated:
“We refer to the meeting with you, Michael Cummins and myself held this afternoon.
We advised you in the meeting that we had received a formal complaint from (the Complainant) about your conduct during last Saturday’s shift (26th May). We also advised you we could talk about these issues now or at a later date where you could bring a support person. You opted to continue the meeting to discuss the events of last Saturday without a support person present.
In summary:
• You admitted that you made reference to (the Complainant’s “extra padding/layers” in the context of her weight.
• You conceded that your comments were inappropriate, insulting and offensive.
• You claim you apologised to (the Complainant) afterward.
We also advised you that (the Complainant) had also made a formal complaint about the message you sent her on “Messenger” in relation to sending her home from shift for improper mobile phone usage.
At this point, you advised us you would like to continue with a support person present. The meeting was adjourned pending a new time where a support person could attend.
…
Julia, we consider this conduct, if proven, potentially constitutes misconduct and may result in disciplinary action and/or termination of your employment. Pending resolution of this issue, we will be unable to offer you further casual shifts after today...” 10
[28] A further meeting took place on 1 June 2018 and was attended by Ms Bastoni, Mr Sayers of the NUW, Mr Cummins, Ms Yue and Ms Smith.
[29] At the meeting, Ms Bastoni was advised that ORC was satisfied that the alleged conduct on 7 April 2018 and 26 May 2018 had occurred, and that these two incidents constituted serious breaches of ORC’s policies and procedures in relation to bullying and harassment. Ms Bastoni’s history of breaching ORC’s policies was also discussed and Ms Smith indicated during the meeting that ORC considered her behaviour was escalating. As a result, ORC advised Ms Bastoni that her employment was being terminated effective immediately. The termination was confirmed in writing in a letter dated 5 June 2018. 11
[30] The letter dated 5 June 2018 from Ms Smith to Ms Bastoni referenced the meeting conducted on 1 June 2018, the discussion regarding the comments alleged to have been made by Ms Bastoni on 26 May 2018 and the Facebook message sent by Ms Bastoni to the Complainant on 7 April 2018.
[31] The letter then continued:
“Guilia, this is not the first time you have been cautioned and given a formal warning with regard to your behaviour at ORC International. You currently have two formal warnings for breaching ORC’s policies and procedures/unacceptable workplace behaviours. The two complaints mentioned in this letter are not isolated incidents and represent further – and more serious – breaches of ORC’s policies and procedures, especially in regard to bullying and harassment.
As we advised during the meeting, ORC International has a duty of care to provide a safe working environment for all its employees. Your conduct has breached ORC’s bullying and harassment policy (which you would have read and signed). We will not tolerate such behaviours, especially from someone who we would expect to be mindful of ORC Internationals’ [sic] expectations, due to your disciplinary history.
As such we advise we are no longer able to offer you further casual work with ORC International.” 12
[32] The Complainant gave evidence that on 16 January 2018, Ms Bastoni was discovered using her mobile phone in the phone room. The Complainant said she explained to Ms Bastoni that in verbally warning her, it would be the first and only verbal warning she would receive for breaching the Phone Room Policies and she would be sent home if she breached the policy again, either during that same shift or any subsequent shift. Subsequently, Ms Bastoni was allegedly discovered using her mobile phone in the phone room by the Complainant on 19 January 2018 and sent home. The Complainant gave evidence that prior to leaving, Ms Bastoni accused her of making up the rules and complained “loudly and belligerently” while other employees were nearby.
[33] A meeting occurred on 22 January 2018 during which the updated mobile phone and food and beverage policies were discussed. In attendance were Ms Bastoni, Ms Yue and Mr Branigan. It is submitted that following the meeting, Ms Bastoni was discovered eating food requiring utensils at her desk in the phone room by the rostered supervisor, Ms Tara Saraban and when Ms Saraban advised that this was not allowed, Ms Bastoni apparently responded by saying that she would “just drink it”.
[34] Mr Ficnerski said that on 7 February 2018, Ms Bastoni was discovered by Ms Saraban eating ice-cream at her desk in the phone room. He said that when Ms Saraban approached Ms Bastoni to advise her that this was not allowed, she responded by throwing her spoon to the side and proceeding to drink the ice-cream. At the hearing, Ms Bastoni conceded that she had eaten ice-cream and had been counselled by Ms Saraban but disputed that she threw anything.
[35] Mr Ficnerski also gave evidence that on 9 February 2018, he discovered Ms Bastoni using her mobile phone in the phone room and advised her she was being sent home for breaching the Phone Room Policies. He said that in response, Ms Bastoni protested loudly for about 10 minutes about how the rules were unfair and that she had only been showing someone a photo on her phone. Mr Ficnerski gave further evidence that Ms Bastoni made a comment querying whether the supervisors would send all staff home if they all pulled out their phones together. Mr Ficnerski said Ms Bastoni’s complaints and comments were allegedly made loudly in front of the other employees working the same shift. At the hearing, Ms Bastoni did not appear to dispute this incident. 13
[36] A meeting on 13 February 2018 was attended by Ms Bastoni, Ms Yue and Mr Branigan to discuss her repeated breaches of the Phone Room Policies. Ms Smith gave evidence that Ms Yue and Mr Branigan discussed the outcome of the meeting with her and that they had together determined that Ms Bastoni would be issued with a formal warning.
[37] On 16 February 2018, Ms Smith issued Ms Bastoni a letter 14 containing her first formal written warning in relation to her repeated breaches of the Phone Room Policies and her attitude towards her supervisors. The letter set out the events of concern including the breaches of the Mobile Phone Policy said to have occurred on 16 January 2018, 19 January 2018 and 9 February 2018, Ms Bastoni’s meeting with Ms Yue and Mr Branigan on 22 January 2018, and her breaches of the Food & Beverage Policy on 22 January 2018 and 7 February 2018. The letter further stated:
“Giulia, as mentioned above, your behaviour is of great concern. ORC International’s OH&S Policies & Procedures document (which you have signed to signify you have read) states:
“All staff are required to comply with these policies and any new or amended policies that are introduced from time to time. Failure to comply may result in disciplinary action.”
As such, expect you to follow and abide by all policies and procedures at ORC International. This letter constitutes a first formal warning that your conduct is unacceptable at ORC International. In the event that your behaviour does not improve to the standards we expect and/or that you engage in further unsatisfactory conduct, further disciplinary action will result, including the potential termination of your employment.” 15
[38] Ms Smith said a further disciplinary meeting was held on 12 April 2018 with Ms Yue, Mr Branigan and herself in attendance. Ms Bastoni was accompanied by her support persons from the NUW, Mr Sayers and Ms Elyse Lewthwaite. Ms Smith said she expressed her concerns about Ms Bastoni’s repeated behaviour and attitude. The outcome of the meeting was a second formal written warning in a letter dated 17 April 2018, which stated:
“The purpose of the meeting was to discuss your mobile phone usage in the phone-room, which is prohibited. Unfortunately, you were observed using your mobile phone in the phone room on 7th April 2018 and were sent home as per the Phone Room Policies (attached to this letter for your information).
This is not the first time you have breached the phone room policies in relation to mobile phone usage. You received a verbal warning on the first occasion and have been sent home on two further occasions which (in addition to some other issues) resulted in a first written warning on 16th February 2018.
This most recent breach makes it four times in four months you have breached ORC’s mobile phone usage policy. This repeated disregard and disrespect of the company’s policies and procedures is disappointing and disruptive to business operations. It is also disappointing from someone who has been with ORC for a considerable number of years as we would expect a higher level of commitment and engagement in relation to ORC’s policies and procedures.
Unfortunately Giulia, this constitutes a second written warning regarding your employment with ORC International. Any further breaches of ORC’s policies and procedures or any unacceptable behaviours by you, will result in termination of your employment.” 16
[39] There is no dispute between the parties, and I am satisfied, of the four matters referred to in ss.396(a)-(d) of the Act, as follows.
[40] Firstly, Ms Bastoni’s application was made within the 21 day period required by s.394(2) of the Act (s.396(a) of the Act).
[41] Secondly, Ms Bastoni is a person protected from unfair dismissal, as she had completed the minimum employment period, the NUW and AMSRO Market Research Industry Agreement 2017-2020 applied to her employment and she earned less than the high income threshold (s.396(b) of the Act).
[42] Thirdly, in the Form F3 – Employer Response to Unfair Dismissal Application (Form F3), ORC outlined that at the time Ms Bastoni was dismissed, it had 73 permanent staff. As such, it was not a small business employer within the meaning of the Act and the Small Business Fair Dismissal Code does not apply (s.396(c) of the Act).
[43] Fourthly, neither party suggested this case involves a dispute as to whether or not the circumstances involved a genuine redundancy and I find this to be the case (s.396(d) of the Act).
[44] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 of the Act provides the following:
“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.”
[45] There was no dispute and I am satisfied that Ms Bastoni was dismissed within the meaning of s.386(1) of the Act.
[46] As outlined in paragraph [42] above, s.385(c) of the Act does not apply.
[47] As outlined in paragraph [43] above, s.385(d) of the Act does not apply.
[48] The criteria I must take into account when required to assess whether a dismissal was harsh, unjust or unreasonable, within the meaning of s.385(b) of the Act, are set out in s.387 of the Act.
“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.”
[49] I am under a duty to consider each of these criteria in reaching my conclusion and will do so below. 17
Was there a valid reason for dismissal relating to Ms Bastoni’s capacity or conduct? (s.387(a))
[50] In considering whether the dismissal of Ms Bastoni was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to her capacity or conduct (including its effect on the safety and welfare of other employees).
[51] A valid reason need not be the reason given to Ms Bastoni at the time of the dismissal. 18 The reason or reasons should be “sound, defensible and well founded”19 and should not be “capricious, fanciful, spiteful or prejudiced”.20
[52] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 21 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). Where conduct of an employee is relied upon to justify the decision to terminate employment, the Commission needs to be satisfied that the conduct as alleged, occurred.22 A mere suspicion of conduct does not amount to a valid reason.23
[53] Ms Bastoni does not deny that she sent the Complainant the message via Facebook on 7 April 2018, nor does she deny making the “extra padding” and “natural extra padding” comments to the Complainant. However, Ms Bastoni submitted that these two incidents did not constitute a valid reason for her dismissal for a number of reasons.
[54] Firstly, Ms Bastoni submitted that the official reasons for her dismissal were a proxy for the real reason, that Ms Bastoni was dismissed for being “anti the organisation” and “challenging the guidelines and just pushing those boundaries”. 24 She submitted that only one of the three decision makers had given evidence and that the Commission could therefore not rely on the official reasons published in the letter dated 5 June 2018 as being the only reasons for the termination of her employment. Further, Ms Bastoni submitted that Mr Ficnerski’s email to management dated 30 May 2018, which claimed that she had insulted him in relation to his weight and called him an ice and speed addict, was an obvious source of the “spiteful and prejudiced attitude” that management had against her. It was contended that Mr Ficnerski’s allegations affected the view that Ms Smith had of Ms Bastoni when deciding to dismiss her.
[55] Secondly, Ms Bastoni submitted that even if the Commission accepted that the full scope of reasons for the dismissal were set out in the letter dated 5 June 2018, there is no valid reason for dismissal as neither the Facebook message sent on 7 April 2018 nor the comments made on 26 May 2018 were breaches of ORC’s bullying and harassment policy. In relation to the Facebook message sent on 7 April 2018, Ms Bastoni submitted that this was simply a complaint to the Complainant about the events that had occurred earlier that day and that it was not intended to threaten or intimidate the Complainant. Further, Ms Bastoni submitted that ORC could not regulate the sending of the Facebook message as it had been sent out of hours and did not occur within the workplace, and therefore could not be appropriately defined as workplace bullying. Ms Bastoni additionally submitted that because ORC was aware of the Facebook message soon after it was received by the Complainant, it had waived its right to rely on it as a valid reason for dismissal eight weeks after it had occurred.
[56] Ms Bastoni further submitted that some people are less tactful than others, the comments were not misconduct but at most, an error of judgment. She said they could not be interpreted as harassing or bullying. Moreover, no other employees were potentially put in an unsafe environment. The thrust of Ms Bastoni’s submissions relating to the comments was:
“WHY THE PADDING COMMENT WAS NOT A VALID REASON FOR DISMISSAL
69. Background facts are that on the day in question (26 May 2018) the work environment was cold, and that supervisors exercised control by not allowing heating or cooling unless the supervisor wanted to turn it on. The request from staff, through the applicant (who was a union delegate), to turn on the heating on a cold morning was met with (the Complainant’s) personal sensory experience that she did not feel the cold.
70. There seems to be some basic science to the effect that skinny people experience the cold more than overweight people.
71. It might seem indelicate to point out that the reason why (the Complainant) did not feel the cold that the other staff did could be a basic biological factor, such as insulating fat layers. However it is nevertheless probably a correct explanation that was put to (the Complainant) to explain why she should provide relief to the rest of the staff who were feeling the cold.
72. There was a utilitarian justification to point out an obvious fact why the greater benefit of a warm work environment was more important to the greater good of the larger number of employees than pointing out something that (the Complainant) may not have realized due to a lack of personal insight about her body habitus.
73. It is not as if the applicant used demeaning or abusive language to make the point. Exception could not be taken to the language itself. The language about layers was euphemistic instead of demeaning.
74. It is only the respondent’s representative that has tried to characterize the comment as demeaning ‘fat-shaming.’
75. Obviously the point was taken and the heating was turned on.
76. The applicant, as a long serving leader in her work group, appropriately represented her work colleagues and got a result for the greater good of her colleagues; that is, a warmer work environment on a cold Melbourne morning.
77. It could not be regarded as misconduct or conduct that could justify dismissal. It was simply of so little consequence. Not every insensitive remark in a work place lurks as a potential basis for an employee’s dismissal.
78. If it was misconduct, it is misconduct of the mildest kind.” 25
[57] Thirdly, Ms Bastoni submitted that the previous warnings were not a valid reason for the termination of her employment. She does not dispute that she was given two formal warnings about mobile phone use in the phone room. However, Ms Bastoni submitted that these warnings were “heeded” as there was no further mobile phone usage after the second formal warning was issued on 17 April 2018. 26 Moreover, it was submitted that the warnings would not be legitimate if they effectively said that any conduct or performance the employer took exception to would result in dismissal.27
[58] On the other hand, ORC denies that the official reasons for dismissing Ms Bastoni were a proxy for another underlying reason. It submitted that it had a valid reason for terminating Ms Bastoni’s employment due to her bullying and harassment of the Complainant both in the workplace and via social media, against a background of Ms Bastoni’s history of knowingly breaching ORC’s Mobile Phone Policy and Food & Beverage Policy, behaving disrespectfully towards supervisors and management staff and the formal warnings issued to her for that conduct. 28
[59] ORC submitted there was a valid reason because Ms Bastoni’s conduct affected the safety and welfare of the Complainant and other employees.
[60] Further, ORC submitted Ms Bastoni’s message to the Complainant via Facebook on 7 April 2018 was clearly connected to the workplace and the employment relationship because the content of the message related specifically to an instance where the Complainant enforced a workplace policy in line with ORC’s directions and where Ms Bastoni had breached the policy. It submitted that the delay in ORC’s investigation was a result of the Complainant not filing a complaint and that the Facebook message took on a different character and seriousness in the context of Ms Bastoni’s further conduct on 26 May 2018, at which point it considered there was a pattern of intimidating, harassing and bullying behaviour.
[61] ORC submitted that Ms Bastoni had not “heeded” its prior warnings as she had simply engaged in a slightly different form of disrespectful behaviour and breached a different policy. It further contended that the warning letter dated 17 April 2018 was a final warning which was clearly not confined to future breaches of the Mobile Phone Policy alone. ORC submitted Ms Bastoni’s conduct in sending the Facebook message and making the comments to the Complainant constituted clear breaches of its bullying and harassment policy and, in circumstances where she was on her final warning, was a valid reason for her dismissal.
[62] It seems evident that Ms Bastoni’s comments to the Complainant on 26 May 2018 were made at a time she was feeling aggrieved:
“I thought it was quite unfair that one person was allowed - had all the control and authority about whether to turn the heater on or not at the expense of everyone else.” 29
[63] Her reaction to this situation was however unjustified and unnecessary. There was no need to resort to insulting, cruel and demeaning comments when seeking to have the heating in the workplace turned on. These comments were made in the work environment by an employee to her manager. They were said in the presence of another co-worker. 30 They were completely disrespectful and are in no way acceptable.
[64] I consider Ms Bastoni’s submissions outlined at [56] above neither impressive nor persuasive. It seems the case put on her behalf is that provided one bases an insult on scientific/biological factors, it is justified. I do not accept this. Further, to suggest Ms Bastoni’s comments are justifiable on some sort of a utilitarian basis and the issue here was the Complainant’s lack of insight into the state or condition 31 of her body beggars belief. Finally, to suggest that Ms Bastoni’s choice of words were euphemistic instead of demeaning does not assist, given a euphemism simply involves the substitution of roundabout or vague language for that which is harsh or blunt.
[65] Having observed both Ms Bastoni and the Complainant when they gave evidence, I consider Ms Bastoni exhibited a continuing lack of insight into the inappropriateness of her comments and the possible impact they might have and that the Complainant was visibly distressed in recounting the incident. I have considered the evidence each gave as to whether an apology was made by Ms Bastoni. I prefer the Complainant’s evidence on this point and consider the lack of an apology is a matter that is not to Ms Bastoni’s credit. She instead focussed her post-incident discussion with the Complainant on mounting a plea that she not be reported, before resorting to a clumsy challenge to the behaviour of the Complainant, when the Complainant went to commence a meal break.
[66] That the Complainant was able to caution Ms Bastoni shortly after the comments were made does not diminish the seriousness of the comments and nor does it count against her. She did not do so because the comments had made little impact on her. She did so because she took her responsibilities as a manager seriously.
[67] I am not persuaded the evidence establishes that Ms Bastoni and the Complainant were particularly close or anything more than work associates and I do not accept the comments were made in the context of banter exchanged by friends. I do not attach significance to the fact that they may at the time have been “Facebook friends” given the apparent paucity of their communication over that social media platform.
[68] As to the respective submissions going to whether the comments were a breach of company policy, I have reviewed the OH&S Policies and Procedures document of ORC 32 which notes the following:
a) While at work employees must take reasonable care for the health and safety of other workers (Clause 1.4(1));
b) The Workplace Harassment & Bullying policy is aimed at ensuring employees are not subjected to any unlawful discrimination, unwanted workplace harassment or bullying (Clause 2.1);
c) An objective of the Workplace Harassment & Bullying policy is the creation of a working environment that is free from discrimination and harassment and in which all employees are treated with dignity, courtesy and respect (Clause 2.2(1));
d) Workplace harassment can consist of just one act that is of a serious nature and there is no requirement that the harasser intend to offend or harm in order for it to be unlawful (Clause 2.4);
e) Unlawful harassment can include suggestive comments about a person’s body (Clause 2.4);
f) In some instances the harassment might take place out of the workplace, which will be treated in the same manner as if it had occurred in the workplace (Clause 2.4);
g) Workplace harassment may involve comments and behaviours that offend some people and not others and the minimum standard of behaviour required is to be respectful of all employees(Clause 2.4);
h) Bullying is repeated, unreasonable behaviour directed towards another person that creates a risk to health and safety and can include a staff member bullying their supervisor (clause 2.5);
i) Bullying can include humiliating someone through sarcasm, criticism or insults;
j) Occasional differences of opinion, conflicts and problems in working relations are part of the work experience and do not constitute bullying (Clause 2.5);
k) Bullying includes psychological abuse (Clause 2.5);
l) “Unacceptable Behaviour” may result in a range of disciplinary action including dismissal, depending on severity. It includes use of abusive or offensive language (Clause 3.6);
m) “Serious Misconduct” is wilful and/or reckless and is likely to result in instant dismissal for a single offence. It includes harassment (Clause 3.6); and
n) All incidents of Serious Misconduct and any incident of Unacceptable Behaviour which has continued beyond final warning stage will be handled under the termination procedure (Clause 3.6).
[69] Ms Bastoni’s evidence regarding her awareness of the OH&S Policies and Procedures document was vague. ORC asserted that during the course of her employment, Ms Bastoni had signed a copy of the OH&S Policies and Procedures document and this indicated Ms Bastoni had read and understood her obligations. It was unclear as to whether this had occurred. 33
[70] Noting an objective of the Workplace Harassment & Bullying policy within the OH&S Policies and Procedures document is to create a working environment free from discrimination and harassment and in which all employees are treated with dignity, courtesy and respect and that the required minimum standard of behaviour is to be respectful of all employees, I say this: Ms Bastoni had an obligation to treat her fellow worker with basic dignity, courtesy and respect regardless of whether it was written in a policy document which she had signed and her indifference to such an obligation was callous. Ms Bastoni may have taken issue with some of ORC’s policies but this did not grant her carte blanche to say what she liked to whomever she pleased.
[71] I am satisfied Ms Bastoni’s conduct in making the comments to the Complainant on 26 May 2019, of itself, constituted a valid reason for her dismissal.
[72] As to the Facebook message on 7 April 2018, I am satisfied it can be considered employment related conduct.
[73] Misconduct outside of working hours must have a relevant connection to the employment in order to be a valid reason for the dismissal. 34 As to whether there is a relevant connection, the following should be considered:
a) Was the conduct such that, viewed objectively, it was likely to cause serious damage to the relationship between the employer and employee; or
b) Did the conduct damage the employer's interests; or
c) Was the conduct incompatible with the employee's duty as an employee. 35
[74] The Facebook message on 7 April 2018 was a communication from an employee to her line manager, it arose out of a workplace incident, was contemporaneous and took issue with the manager’s actions in seeking to enforce company policy. Ms Bastoni exhibited a lack of insight into the inappropriateness of her choice of wording. While I accept she was aggrieved, the sardonic and accusatory tone Ms Bastoni employed was unwarranted in circumstances where the Complainant was simply carrying out what had been asked of her by her superiors.
[75] I do not consider the impact of the Facebook message on the Complainant should be discounted because of the time that elapsed before she made the complaint to ORC because her first and preferred approach was to see if the issue could be addressed and resolved with the assistance of the NUW. As to the approach of ORC, I note it initially held off taking action at the behest of the Complainant despite forming that it was a serious issue. 36 Email correspondence indicates that ORC intended to take some action in response during the week commencing 28 May 2018,37 which was at the same point in time, as things transpired, as it became necessary for it to respond to the comments made by Ms Bastoni on 26 May 2018.
[76] When viewed in conjunction with the comments made on 26 May 2018, the Facebook message was another example of the way in which Ms Bastoni did not afford the Complainant due respect in her role as a Supervisor.
[77] While I am of the view that the delay and inaction of ORC were such as to preclude it terminating Ms Bastoni’s employment solely on the basis of the Facebook message, I am nonetheless satisfied that the Facebook message, together with the comments on 26 May 2018, can form a valid reason for her dismissal. 38
[78] I am therefore satisfied there was a valid reason for the dismissal related to Ms Bastoni’s conduct.
Notification of the valid reason – s.387(b)
[79] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 39 in explicit terms,40 and in plain and clear terms.41 In Crozier v Palazzo Corporation Pty Ltd42 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[80] I have outlined the contents of the letter from ORC to Ms Bastoni dated 30 May 2018 above at [27]. It recorded that the comments allegedly made by Ms Bastoni on 26 May 2018 had been raised and admitted by Ms Bastoni. It also recorded that a complaint about a message Ms Bastoni had allegedly sent to the Complainant relating to the Complainant sending her home from shift for improper phone usage had also been raised. The letter then proposed a further meeting and flagged that the conduct of Ms Bastoni, if proven, would potentially constitute misconduct and could result in disciplinary action and/or the termination of her employment.
[81] While Ms Bastoni submits the issue of the Facebook message was not put to her in a way “that could permit a defence”, I consider that in circumstances where the complaint arose from a message Ms Bastoni is alleged to have sent, it was possible for her to gather information and prepare for the proposed next meeting.
[82] Further, it is clear the Facebook message was discussed at the meeting on 1 June 2018. 43 During that discussion:
a) The text of the message was discussed;
b) Ms Bastoni did not deny sending the message;
c) Ms Bastoni was informed the Complainant found the message intimidating; and
d) Ms Bastoni challenged that proposition.
[83] There having been discussion about these matters at the meeting on 1 June 2018, Ms Bastoni was then informed by ORC that the two incidents (the comments on 26 May 2018 and the Facebook message) were serious breaches of ORC’s bullying and harassment policies and as a result, ORC had decided it could no longer offer shifts to Ms Bastoni and her casual employment would be terminated. 44
[84] I am satisfied that Ms Bastoni was notified of the reason for termination of her employment before the decision was made.
Opportunity to respond to any reason related to capacity or conduct – s.387(c)
[85] Ordinarily, an employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 45
[86] Ms Bastoni submitted that she was not given an adequate opportunity to respond or defend herself in relation to the particular matters and that it would have been impossible for Mr Sayers to mount a defence of Ms Bastoni on the sparse detail provided in the letter dated 30 May 2018.
[87] ORC submitted that Ms Bastoni was given an opportunity to respond to the Complainant’s two complaints in the meetings held on 30 May 2018 and 1 June 2018.
[88] The evidence of Ms Smith was that a decision was made prior to the meeting on 1 June 2018 that if Ms Bastoni admitted to making the comments but there was neither a misunderstanding nor a reasonable or acceptable excuse for her behaviour given, her employment would be terminated. 46 Ms Smith further stated that the decision to terminate Ms Bastoni’s employment was made during the meeting “when she did not come forward with any reasonable explanation.”47
[89] I am satisfied that Ms Bastoni was given an opportunity to respond based on the letter dated 30 May 2018 and the evidence of what transpired at the meeting on 1 June 2018.
Unreasonable refusal by the employer to allow a support person – s.387(d)
[90] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[91] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 48
[92] In this case, I am satisfied that there was no unreasonable refusal by ORC to allow Ms Bastoni a support person.
Warnings regarding unsatisfactory performance – s.387(e)
[93] As Ms Bastoni was not terminated on the basis of unsatisfactory performance, this is not a relevant consideration in this case.
Impact of the size of the Respondent on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[94] Ms Bastoni submitted that the way the dismissal was effected was harsh and that she was denied a fair go, notwithstanding the size of ORC and the involvement of specialist human resources.
[95] ORC submitted that Ms Smith’s involvement in the counselling of Ms Bastoni and her eventual dismissal provided dedicated human resource expertise throughout the process.
[96] I do not consider ORC’s size to have been a relevant factor in this case (s.387(f)) and have noted that ORC had access to human resource management specialists, such that s.387(g) of the Act does not apply.
Other relevant matters – s.387(h)
[97] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[98] Ms Bastoni submitted her dismissal should be considered harsh due to the disproportionate impact upon her relative to her conduct, for the following reasons:
a) ORC did not treat Ms Bastoni in a good and considerate manner and she was denied a fair go;
b) Ms Bastoni was entitled to rely upon the procedural benefits in the policies and procedures of ORC and ORC had failed to follow its own procedures;
c) There was no final warning given to Ms Bastoni in accordance with ORC’s disciplinary policies and procedures;
d) Ms Bastoni was not provided with the detail of the alleged misconduct, details of the investigation or the result of the investigation in writing, or the opportunity to implicitly respond to the allegations at an interview before the decision to terminate her employment was made;
e) If there was any basis for a finding of a valid reason for dismissal, the dismissal was nevertheless a disproportionate outcome;
f) Mr Ficnerski’s email dated 30 May 2018 was damaging, untrue and coloured the three managers’ view of Ms Bastoni’s conduct and the failure to seek a response on that matter was a source of unfairness;
g) A finding that Ms Bastoni had failed to comply with ORC’s policies and procedures does not mean her dismissal was not harsh, unjust or unreasonable;
h) Ms Bastoni had significant service and the dismissal was a serious matter that put her and her family at risk of significant personal hardship.
[99] ORC submitted as follows:
a) Its disciplinary policies and procedures were guidelines only;
b) The letter dated 17 April 2018 was clearly a final warning based on its content, including the statement “any further breaches of ORC’s policies and procedures or any unacceptable behaviours by you, will result in termination of your employment”;
c) ORC followed its Termination/Dismissal Procedure by:
• Providing the letters dated 30 May 2018 and 5 June 2018 which detailed the alleged misconduct, the investigation and, in the case of the letter dated 5 June 2018, the result of the investigation;
• Providing Ms Bastoni with details of the allegations and the investigation in the meetings on 30 May 2018 and 1 June 2018;
• Providing Ms Bastoni with an opportunity to respond during the meeting on 30 May 2018 and again during the meeting on 1 June 2018; and
• Making its final decision after Ms Bastoni had been given an opportunity to respond in the meeting on 1 June 2018;
d) The decision to dismiss Ms Bastoni was not made prior to the meeting on 1 June 2018 and was subject to her response in that meeting;
e) The decision to dismiss Ms Bastoni was not disproportionate in circumstances where she had been repeatedly counselled and put on notice in relation to her unacceptable workplace behaviour and non-compliance with ORC’s policies;
f) Ms Bastoni’s dismissal was not harsh, unjust or unreasonable because:
• A thorough investigation by ORC and Ms Bastoni’s own admissions supported the finding that she was guilty of the alleged conduct;
• The evidence before ORC supported the conclusion that Ms Bastoni had sent the Facebook Message and had made the comments on 26 May 2018;
• Notwithstanding the economic and personal consequences arising from the dismissal, Ms Bastoni had been put on notice of ORC’s expectations and was given numerous opportunities to cease her disrespectful behaviour and comply with its policies and procedures; and
• In circumstances where Ms Bastoni had been repeatedly counselled by ORC and had been provided with a clear final warning, the outcome was not disproportionate to the gravity of Ms Bastoni’s repeated, wilful behaviour and breaches of its policies.
Consideration – s.387(h)
[100] I have considered the matters raised in these submissions and have taken them into account.
[101] The complaints made by Ms Bastoni that she was denied a fair go and ORC did not follow its own procedures need to be viewed in context. While Ms Bastoni characterised them and their impact differently to ORC, the two matters raised with her were not denied and I am satisfied this addresses the submission that the lack of an investigation was a procedural deficiency. Further, as outlined above, I am satisfied that the requirements in ss.387(b) and (c) of the Act were met by ORC.
[102] Ms Bastoni also submits that the email of Mr Ficnerski dated 30 May was a source of unfairness but I am not persuaded, having regard to the evidence of Ms Smith, that this is the case. 49
[103] The submission was made that the dismissal had placed Ms Bastoni and her family at risk of significant personal hardship but there was no evidence before me in relation to this.
[104] I have had regard to Ms Bastoni’s length of service and employment record. I have noted that Ms Bastoni was not the subject of disciplinary attention until 2018 but she did begin behaving in an increasingly belligerent and disruptive manner during the last months of her employment with ORC. As outlined above at [24] and [32]-[38], her reaction to the Phone Room policies covering mobile phone use and the consumption of food and beverages had required management intervention and resulted in formal written warnings on 16 February 2018 and 17 April 2018. Ms Bastoni did not seem to be able to accept the policies despite having a meeting to specifically discuss them and some of her ire was directed at the Complainant in the episodes of 19 January 2018 and 7 April 2018, the latter of which culminated in her sending the Facebook message of 7 April 2018. These matters, while not being determinative, weigh against a conclusion that Ms Bastoni’s dismissal was harsh, unjust or unreasonable. 50 I consider the comments made by Ms Bastoni on 26 May 2018 were therefore not isolated and were part of a pattern of increasingly belligerent and disruptive behaviour to which I can have regard,51 particularly as some of it was directed at the Complainant.
[105] There was nothing to suggest the Complainant was doing anything towards Ms Bastoni, other than seeking to manage fellow employees whom she was required to supervise in accordance with company policy, that could explain the behaviour of Ms Bastoni. As I have detailed above, I regard Ms Bastoni’s behaviour as being completely disrespectable and unacceptable. I am satisfied her dismissal was not a disproportionate outcome in response to cruel, insulting and demeaning comments.
[106] Having considered each of the matters specified in s.387 of the Act, I am satisfied the dismissal of Ms Bastoni was not harsh, unjust or unreasonable.
[107] Accordingly, I find that Ms Bastoni’s dismissal was not unfair. Ms Bastoni’s application for unfair dismissal remedy is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr G Dircks, Just Relations, for the Applicant.
Mr Andrew Maher, solicitor, for the Respondent.
Hearing details:
2018.
Melbourne:
26 September.
Final written submissions:
Ms Bastoni, 9 November 2018.
ORC International Pty Ltd, 2 November 2018.
Printed by authority of the Commonwealth Government Printer
<PR703593>
1 Exhibit A1 at [40] and Exhibit R3 at [14], PN233.
2 PN236, PN276.
3 PN88.
4 PN868.
5 PN939-948.
6 PN897.
7 PN929.
8 PN938.
9 Exhibit R3 at [9].
10 Exhibit R1, Attachment LS-6.
11 Exhibit R1, Attachment LS-9.
12 Ibid.
13 PN262.
14 Exhibit R1, Attachment LS-4.
15 Ibid.
16 Exhibit R1, Attachment LS-5.
17 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498.
18 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
19 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
20 Ibid.
21 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
22 King v Freshmore (Vic) Pty Ltd (AIRC, Full Bench, 17 March 2000), Dec 283/00 M Print S4213 at [23]–[26].
23 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
24 Applicant’s Closing Submissions at [18], referencing PN591.
25 Applicant’s Closing Submissions dated 28 October 2018 at [69]-[78].
26 Ibid at [39]-[40].
27 Ibid at [43].
28 Respondent’s Outline of Submissions at [29].
29 PN106.
30 PN127.
31 Translation of Habitus from Latin to English.
32 Exhibit R1, Attachment LS-3.
33 PN178.
34 Rose v Telstra Corporation Limited (AIRC, Ross VP, 4 December 1998), Dec 1444/98 N Print Q9292 at [11].
35 Ibid.
36 PN483.
37 Exhibit R3, Attachment 2.
38 McCasker v Darling Downs Co-operative Bacon Association Ltd, Supreme Court of Queensland, Ryan J, 25 IR 107 at 114.
39 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
40 Previsic v Australian Quarantine Inspection Services (AIRC, Holmes C, 6 October 1998), Dec 907/98 M Print Q3730.
41 Ibid.
42 (2000) 98 IR 137, 151.
43 PN365-375.
44 Exhibit R1 at [19].
45 RMIT v Asher (2010) 194 IR 1, 14-15.
46 PN530 and PN649.
47 PN650.
48 Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542].
49 PN547.
50 Toll Holdings Limited t/a Toll Transport v Johnpulle [2016] FWCFB 108 at [15].
51 Ibid at [16].