DECISION

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

Shane Brand
v
Beijer Ref Australia Pty Ltd
(U2019/3870)

Application for an unfair dismissal remedy - applicant dismissed due to alleged serious and wilful misconduct - multiple allegations - alleged theft of company property, damaging of company property, misuse of company credit card, sexual harassment, failure to comply with reasonable and lawful directions, breach of safety policies - all allegations denied by applicant - consideration of allegations - findings made on the balance of probabilities having regard to the nature and consequences of the allegations - some serious and other misconduct found to have occurred - not satisfied theft and deliberate damage occurred as alleged - valid reason for dismissal found - whether dismissal harsh - balance of considerations - impact on applicant, personal circumstances including health and other matters considered - notice and long service leave entitlements withheld - dismissal not unfair as a result given nature of misconduct - on balance, dismissal not harsh, unjust or unreasonable - application dismissed.

1. Introduction and case outline

[1] Mr Shane Brand has made an application under s.394 of Fair Work Act 2009 (the FW Act) for a remedy in connection with an alleged unfair dismissal by his former employer, Beijer Ref Australia Pty Ltd (Beijer or the Respondent).

[2] Beijer is a business employing around 80 employees and provides refrigeration services from various locations, including through its office in Hindmarsh, Adelaide (the Adelaide Office) where Mr Brand was engaged.

[3] Mr Brand commenced full-time employment with Beijer in a sales role in August 2011 and was promoted to the position of Business Development Manager in July 2015. At the time of his dismissal on 21 March 2019, Mr Brand was in the role of a part-time Counter Sales Assistant following a period of absences from work between late October 2018 and late February 2019.

[4] Mr Brand’s dismissal was on the basis of alleged serious and wilful misconduct stated 1 by the Respondent to be:

•  Sexual harassment of another employee;

•  Failure to comply with reasonable and lawful directions;

•  Unauthorised use of the Respondent’s Credit Card;

•  Damaging the reputation and good standing of the Respondent;

•  Theft of company property (a laptop computer);

•  Breach of Work, Health and Safety (WHS) policies; and

•  Damage of company property (a mobile phone).

[5] Mr Brand denies each of these allegations and contends, in effect, that Beijer:

•  Failed to support him and meet its WHS obligations when dealing with his mental health condition and his return to the workplace;

•  Treated him in a demeaning manner on his return to work, which set the context for the limited conduct that did occur on the day in question – 28 February 2019;

•  Relied on false and exaggerated allegations and complaints which were not supported by any evidence and had not been subject to previous warnings;

•  Denied him procedural fairness when dealing with the allegations; and

•  Dismissed him without a proper foundation and in a manner which was unfair.

[6] The dispute about the circumstances leading to Mr Brand’s return to the workplace on 28 February 2019, his earlier conduct associated with the laptop computer and mobile phone, and his conduct on that day, all set the context for the determination of this matter.

[7] After conducting a directions conference with the parties on 4 June 2019, and considering the nature and extent of the evidence involved, I determined that a hearing would be the most effective and efficient way to resolve this matter.²

2. The cases and evidence

[8] Mr Brand was represented during the hearing by his father, Mr Kevin Brand. Both Shane and Kevin Brand provided witness statements, gave sworn evidence, were cross-examined, and provided documentary material. References in this Decision to Mr Brand will be to the Applicant, Shane Brand, unless expressly stated to the contrary.

[9] Beijer was represented by Ms Macey from Ai Group 3 and provided witness statements and led sworn evidence from the following of its employees, all of whom were cross-examined:

•  Mr Darren Bromley, South Australia State Manager of Beijer;

•  Mr Nick Martin, Customer Service/Internal Sales staff member; and

•  Mr Umesh Thakur, Human Resources Manager of Beijer, based in New Zealand.

[10] In addition, Beijer provided a comprehensive trial book of documents relevant to the matter.

[11] Given that, unlike the Respondent, Mr Brand was not professionally represented, I took appropriate steps to ensure that the Applicant understood the nature of the issues concerned and the conduct of the hearing. I also provided appropriate assistance with the introduction of evidence and some latitude was provided to facilitate the presentation of each case. However, the parties retained full responsibility for the conduct of their cases and the provision of relevant evidence to the Commission.

[12] I found that whilst the evidence of Mr Shane Brand was generally given in an open manner, it was unconvincing at times due to the absence of any recall of some key events and inconsistencies as to the detail of matters. This leads me to treat his evidence with some caution.

[13] I found that Mr Kevin Brand’s evidence to be largely made up of statements about the information provided to him by the Applicant (which I have given little weight to) and his views about the fairness of matters, which are matters for the Commission itself to determine. His evidence did include some direct communications with Mr Bromley, some testimony about his vehicle - that was being driven by the Applicant at one point connected with two of the allegations, and the arrangements he made to obtain some legal assistance for the Applicant during the process leading to the dismissal. I accept his evidence about the facts that he directly observed or participated in.

[14] I would also observe that there were some propositions advanced by Kevin Brand for the first time during his closing submissions, which were not supported by any evidence provided by, or on behalf of, the Applicant and were not put to the Respondent’s witnesses. I have determined the matter based upon reliable evidence properly before the Commission.

[15] I found Mr Bromley’s evidence to be generally credible. He gave evidence openly, demonstrated suitable recall and made appropriate concessions. However, it is evident that by 2019 Mr Bromley held a very jaundiced view of Mr Brand and I have considered his evidence alert to the potential that there was some exaggeration associated with the events of 28 February 2019.

[16] I found Mr Martin’s evidence generally credible although his recall of certain events was less than fully convincing. In particular, this arose from the suggestion that Mr Bromley had stated that the Applicant was to report to Mr Martin in the context of Mr Martin not considering that he had any authority in the workplace. I deal with this suggestion later in the Decision but I have treated the associated evidence with some caution. Evidence on other matters, particularly events in which he was a direct participant or observer, was more reliable and I accept it where there is a conflict with Mr Brand’s testimony. In that regard, Mr Brand sought, in effect, that I draw a negative inference from the Respondent’s “failure” to call the customers who were involved in the alleged discussions on 28 February 2019 relied upon by Beijer. Where there is an unexplained failure to call a witness, the Commission may draw an inference that the evidence would not have assisted the party who might be reasonably expected to call that evidence. 4 Given the nature of the allegations, and that the evidence concerned would involve customers of Beijer whose evidence would be additional to that of Mr Martin who directly heard the alleged comments, I do not consider that it is appropriate to draw such an inference in this case.

[17] I found Mr Thakur’s evidence on most matters to be convincing, however it was evident to me that he did seek to bolster the evidence about the parameters for the use of the company credit card by reference to assumptions, rather than directly observed facts. His evidence on other matters was clear and convincing.

[18] There is very little objective evidence before the Commission about Mr Brand’s mental health, apart from various medical certificates indicating unfitness for work due to a “medical condition” and some evidence to suggest that Mr Brand had two hospital admissions during his absence from work. Given the Applicant’s representation, I draw no adverse inference from the absence of medical evidence that might have further supported his case to explain some of the conduct. However, I must determine the matter on the basis of the evidence that is properly before the Commission.

3. The general chronology of events

[19] I will shortly deal with some of the key disputed elements of this matter; however, an overview of the timeline of some of the events referred to in later discussion assists to put these into context.

•  Mr Brand commenced full time employment with the Respondent as a Sales person on 9 August 2011;

•  The Applicant’s direct supervisor for the duration of his employment with the Respondent was the Respondent’s State Manager, Darren Bromley.

•  Mr Brand was promoted to Business Development Manager in July 2015. At that time, Mr Brand was advised by Mr Bromley that he was entitled to a car allowance, which was to be provided in addition to his salary to maintain his vehicle because he was required to us his own vehicle to visit customers. The arrangement was confirmed in writing and I will return to this aspect.

•  Mr Brand’s work performance between 2011 and March 2018 was satisfactory and no conduct or performance concerns were raised with him by Mr Bromley.

•  Between March and July 2018, Mr Bromley became increasingly concerned with Mr Brand’s behaviour in the workplace including having what he described as an aggressive demeanour and becoming easily agitated. He also noticed, and had reported to him, changes in his behaviour including excessive swearing and erratic driving. This included that in around March 2018, Mr Brand reported that a stranger, whom he thought was a bikie, had come to his home and asked for his guns.

•  During a meeting between Mr Bromley and Mr Brand on 18 July 2018 to discuss these concerns, Mr Bromley queried whether the Applicant was effected by drugs and was informed that he had been smoking marijuana since he was a teenager and had recently been prescribed with Valium. Mr Brand also acknowledged that his recent behaviour had been inappropriate.

•  On 19 July 2018, Mr Bromley met with Kevin Brand in the context of the Applicant not attending to a scheduled appointment in Port Augusta without informing Beijer beforehand. Kevin Brand stated that Shane was in a bad way and Mr Bromley was notified that that Applicant was going through a difficult breakup with his girlfriend and that this had had a significant impact.

•  During July and August 2018 there were further incidents of Mr Brand being late for work, conducting himself inappropriately or not undertaking the required work (planning and conducting regular customer visits and providing sales and other reports), and reports were being made to Mr Bromley of additional issues arising from the Applicant’s relationship breakup. There was also a week of personal leave supported by a medical certificate.

•  During September 2018, Mr Bromley continued to observe increasingly erratic behaviour by Mr Brand and held concerns about his work performance and work attendance. In early September, Mr Bromley informally raised these concerns with Mr Brand who requested that he be given some slack, and Mr Bromley subsequently escalated the matter to his National Manager.

•  In mid-September 2018, Mr Brand advised Mr Bromley that he had been hospitalised for the previous week and had had a “mental breakdown”. Mr Bromley was advised by various other people about further issues apparently arising from, or related to, the Applicant’s relationship breakdown.

•  In mid-October 2018, Mr Bromley spoke to Mr Brand about his usage of the company credit card including that his filling the car (with fuel) every second day was excessive and was not “reasonable usage”, and about some customer complaints regarding his alleged behaviour at work.

•  On 18 October 2018, Mr Brand initiated a Performance Improvement Plan (PIP) for Mr Brand and the two of them, with Mr Martin attending as a witness, discussed the PIP.

•  On 29 October 2018, during a meeting with Mr Bromley, Mr Brand acted in a manner that Mr Bromley considered was insubordinate and sarcastic. Later that day, Mr Brand failed to collect and/or deliver an overdue customer’s cheque that he was directed to attend to. When followed up by Mr Bromley, Mr Brand indicated that he had forgotten in a manner that Mr Bromley considered was consistent with the Applicant being drunk.

•  During the latter part of October 2018 and for most of November and December 2018, Mr Brand did not attend for work and texted in requests for personal leave days and in some cases, annual leave days. Medical certificates were generally supplied for personal leave absences in this period.

•  During November and December 2018, Mr Brand continued to use the company credit card.

•  It is alleged that on 26 December 2018, Mr Brand telephoned Mr Bromley and made inappropriate comments.

•  From 2 January 2019 to 7 February 2019, the Applicant did not provide the Respondent with any evidence (such as a medical certificate) with respect to his absence from work. Mr Brand was not paid for that period, other than for public holidays. Mr Brand continued to regularly use the company credit card during this period.

•  On 13 February 2019, Mr Brand reported to Mr Bromley by email that the Applicant’s vehicle had been broken into and that the work supplied laptop had been stolen. This followed an earlier email from Mr Brand stating that he was in serious financial hardship and seeking to be paid.

•  Between 13 and 25 February 2019, there were a number of discussions or exchanges between Mr Brand and Mr Bromley about the Applicant’s failure to report the alleged theft of the laptop to the Police as earlier directed by Mr Bromley.

•  On 7 February 2019, Mr Brand was given a medical clearance to return to work.

•  On 27 February, following further discussions, a new contract of employment was agreed between Mr Brand and Beijer.

•  On 28 February 2019, the Applicant attended for work at Beijer’s Adelaide office.

•  On 28 February 2019, a series of alleged incidents occurred involving Mr Brand that are relied upon as part of the allegations.

•  On 4 March 2019, Mr Brand was issued with a letter of suspension, which directed him not to attend for work while he was suspended, and confirmed that he would be paid while suspended. Accompanying this letter was a proposal that Mr Brand and Mr Thakur meet at a neutral location on 11 March 2019.

•  On or around 6 March 2019, Mr Brand received a call from Mr Thakur regarding an intention to meet with Mr Brand on Wednesday 13 March 2019 to discuss the misconduct allegations.

•  On 7 March 2019, by email, the Mr Brand indicated he was unclear why he was suspended, that he intended to record the meeting scheduled for 13 March 2019, and that he proposed they meet at a café in Aldinga, South Australia.

•  Shortly after the Applicant’s email was sent, a letter was provided to Mr Brand by email. This letter, dated 7 March 2019, directed the Applicant to attend a meeting with Mr Thakur on 13 March 2019 at Ai Group’s offices in Adelaide. This letter set out the detailed allegations being made against Mr Brand for the first time.

•  On 12 March 2019, the Applicant emailed Mr Thakur and requested that the meeting scheduled for 13 March 2019 be postponed.

•  On 12 March 2019, the Respondent issued a letter advising that the meeting scheduled for 13 March 2019 would not be postponed, but offered Mr Brand an opportunity to provide a written response by 15 March 2019.

•  Mr Brand did not attend the meeting with the Respondent on 13 March 2019.

•  Mr Brand provided a written response to the allegation letter by email on 13 and 14 March 2019. The response denied all of the allegations, with the exception that water had been spilled on 28 February 2019, but mopped up by the Applicant, but, based upon legal advice, did not otherwise provide any substantive response or rebuttal to the allegations.

•  Mr Brand was issued with a letter on 18 March 2019 advising him of the outcome of the investigation and inviting him to provide any reasons why his employment should not be terminated (the Show Cause letter).

•  Beijer did not receive any response to the Show Cause letter from Mr Brand within the nominated time frame; being close of business on 20 March 2019.

•  On 21 March 2019, Mr Brand was issued with a letter of termination indicating that the termination was for serious and wilful misconduct and was to be effective on that day.

4. Findings on key factual and other issues

[20] I will shortly deal with the various statutory considerations that must be applied to this matter. However, there are a number of key factual disputes and related context and it is convenient for me to outline my findings on these before doing so.

4.1 The circumstances associated with Mr Brand’s absences from work

[21] I have set out the general context for these absences above. There were periods when Mr Brand would advise Beijer on an almost daily basis that he would not be attending for work. Many periods of absence were subsequently the subject of supplied medical certificates that provided no detail of the medical condition concerned but did provide appropriate justification for the associated paid leave.

[22] There are other periods where appropriate timely notification of absence was not provided and also periods when no medical certificate was provided to confirm the basis of the absence. This included significant periods when the leave was not authorised; that is not approved by Beijer or supported by any medical evidence and not subject to any payment (apart from public holidays falling in the period).

[23] In terms of information about the substantive cause of the absences, and Mr Brand’s health, the medical certificates stated only that he was suffering from a “medical condition”. Attempts by Mr Bromley later in the period of absences to seek clarification about the Applicant’s health and status from the Applicant’s treating Doctor were rebuffed by Mr Brand and the Doctor on privacy grounds.

[24] In relation to the Applicant’s circumstances, Beijer was variously informed that Mr Brand:

•  Had a bikie come to his home and ask for his guns;

•  Had smoked marijuana since he was a teenager and recently been prescribed Valium;

•  Had a problematic breakup with his girlfriend and was in a bad way; and

•  Had a mental breakdown and had been hospitalised.

[25] Given the observed change in Mr Brand’s behaviour and the circumstantial information, it would have been evident to Beijer that the Applicant was undergoing some personal issues, related in some manner to his relationship breakdown and/or a mental health issue. However, Beijer was not advised of the nature of the health issue or its impact upon his conduct or capacity to perform work safely and appropriately. Indeed, the first time that the apparent hospitalisation had been confirmed in writing to the Respondent was during the hearing of this matter.

[26] During proceedings, Mr Brand suggested he did not report his medical condition to his employer for fear of damage to his employment prospects. I accept that this is a concern genuinely held in the community and that as a society we do not always handle mental health challenges well. I would also accept that in some respects, Beijer could have handled the early signs of Mr Brand’s behavioural changes differently and provided some additional support. Further, I note that the Beijer Health and Safety Manual 5 identifies that the causes of what it describes as “stress” can include personal problems and that if an employee’s behaviour indicates that they are “not fine”, some further intervention could be required.

[27] However, Mr Brand was under the care of a Medical Practitioner and Beijer was provided very little information about the cause of the medical condition or its prognosis. Given the early indications that Mr Brand’s circumstances were the product of his personal domestic situation, and the refusal to provide access to more detailed information about the medical condition, any criticism of the employer’s approach to this aspect must be muted and seen in that context. Further, given the extent of the absences and the relatively long periods without medical certificates being provided, Beijer gave Mr Brand considerable latitude and did not further escalate its conduct concerns until the Applicant was given a medical clearance to return to the workplace.

4.2 The return to the workplace

[28] Mr Brand was cleared to return to work in a sales role by virtue of a medical certificate dated 7 February 2019. Following that clearance, there was a discussion between Mr Brand and the National Sales Manager during which Mr Brand sought to recommence work in a part-time capacity in a counter sales role. This was agreed to by Beijer and later confirmed in a new contract of employment 6 as part of a return to work that occurred on 28 February 2019.7

[29] Amongst other matters, the new contract provided:

•  The new position would be an ‘Internal Customer Service’ role;

•  Mr Brand would be a permanent part-time employee working 3 days a week – Tuesday, Wednesday and Thursday;

•  The rate of remuneration (hourly rate) would remain the same as the former BDM position - on a pro rata basis;

•  Mr Brand would now not receive any car allowance, fuel card, mobile phone or laptop as “these tools/allowances are the (sic) part of the Sales Rep role”; and

•  Reimbursement of the costs for the next 6 doctor visits (subject to stated limits) was being provided to “support you with your rehabilitation”.

[30] The position description attached to the contract described the job as being “Counter Sales” reporting to the Branch Manager (Mr Bromley) and stated the following:

“Provision of customer service, product advice and retail sales to ensure Branch targets are met or exceeded.

KEY RESPONSIBILITIES:

•  To deliver best practice professional customer service that ensures customers purchasing requirements are met and that customer satisfaction is assured.

•  Keep customers informed of new initiatives, product changes or marketing campaigns.

•  Provision of product advice.

•  Branch housekeeping.

•  Assist with Ad hoc and scheduled stock takes.

•  Branch security, (lock up and open as directed by the Branch Manager).

•  Customer Satisfaction (to be measured through formal annual customer surveys).

•  General Administrative duties as directed by the Branch Manager.

•  Occupational Health & Safety in the Branch.

•  Any other duties as reasonably assigned by the company” 8

[31] Although Mr Brand considered that this role was a transitional role that would eventually lead to a resumption of the Business Development Manager position at some point, no timeframes or guarantees were present in the agreed new contract.

[32] On 28 February, Mr Brand recommenced work at Beijer’s Adelaide Office. At the outset, Mr Bromley, in effect, re-inducted Mr Brand and this included outlining the workplace rules and doing a tour of the building. Mr Brand disputed the application of some of these rules including that he was not to use his personal mobile phone whilst on duty or use the company car park. An issue also arose about access to morning and afternoon rest breaks. Mr Brand advised that he intended to speak to his “union” about these matters; however, there is no indication that Mr Brand was a member of any union but rather contacted his father, Kevin Brand. I note that after Mr Brand took some advice from Kevin Brand and held further discussions with Mr Bromley about the rest periods, Beijer provided two afternoon breaks for the Applicant.

[33] Amongst other matters communicated at the start of work on 28 February 2019, Mr Bromley informed Mr Brand that he was to report to both himself and Mr Martin. I observe that this was not consistent with the position description and would not appear to be objectively reasonable or factual as Mr Brand and Mr Martin were in effect now peers; with Mr Brand previously being the Manager in that relationship.

[34] Despite returning to work on an agreed date, Mr Brand’s computer was not operational and Mr Bromley did not want Mr Brand performing the counter sales role after such a long absence without reacquainting himself with the stock and the layout of the showroom. This aspect was objectively reasonable. In effect, Mr Bromley directed Mr Brand to undertake cleaning work in the showroom and odd jobs for the majority of the day, including the mopping of the floors and the cleaning of shelves.

[35] Given Mr Brand had previously been the Business Development Manager and was returning to work in a modified role as part of a rehabilitation process, the cleaning work was arguably within scope but would have reasonably been understood by Mr Brand as being demeaning. Spending more of the day shadowing Mr Martin may have been more appropriate in all of the circumstances.

[36] It is clear from the evidence that Mr Bromley already held a dim view of Mr Brand, not unreasonably so given the history of events summarised above, and was concerned about the Applicant’s return to the workplace given that history. It is also clear, that although Mr Brand had been medically cleared to return to work and sought the reduced part-time role, he retained the view that he had not been appropriately supported and resented his new circumstances.

[37] This provides some of the important context for the conduct that I have found occurred on the day in question.

4.3 The alleged misconduct

[38] The alleged misconduct cited in the 7 March 2019 letter to Mr Brand, which Beijer found to be substantiated and is now relied upon in these proceedings, involved some 18 allegations. Those allegations and my findings, based upon the evidence before the Commission, are as follows.

Allegation 1 – phone calls to Mr Bromley

On or around 7:00pm, on Wednesday, 26 December 2018, it is alleged that you (Mr Brand) telephoned Darren Bromley three times. It is alleged that during the second telephone call, you said, ‘you’re dead, cunt’ before hanging up. This conduct is deemed inappropriate and highly threatening.

[39] Mr Brand denied the allegation and did not recall making any telephone calls to Mr Bromley at that time. This evidence was not convincing. Mr Bromley was not specifically challenged about this evidence and I found it to be plausible and convincing on this matter.

[40] I am satisfied that this conduct took place, largely as alleged.

Allegations 2, 3 and 4 – theft of the work laptop

At 9:51am on 13 February 2019, it is alleged that you (Mr Brand) sent a text message to Mr Bromley stating that you were in serious financial hardship and asked when you would be paid. At 2:04pm on the same day, it is alleged that you sent an email to Mr Bromley, to inform him that your work laptop had been stolen from your motor vehicle at 8:00am. It is alleged that you said that the vehicle had been unlocked at the time when the laptop was stolen and as such, there was no damage to your vehicle.

It is alleged that:

a. you were dishonest about the theft of the laptop from your vehicle as you had not mentioned the theft when you sent the text message at 9:51am, despite specifying in your email at 2:04pm that the theft had occurred at 8:00am.

b. you misused Company property by selling the laptop to obtain a financial benefit for yourself, in breach of your obligations under the Employment Contract.

At 2:28pm on Wednesday, 13 February 2019, it is alleged that you were directed by Mr Bromley to make a police report. It is alleged that on the same day, you confirmed that you would make a police report. It is alleged that on the morning of 15 February 2019, you spoke with Mr Bromley by telephone and said that you were on your way to the police station to make a report regarding the stolen laptop. Between 16 February and 22 February 2019, it is alleged that you had a telephone call with Darren Bromley, you said that he had not been to a police station to report the theft of the laptop, because you did not have petrol in your vehicle.

It is alleged that:

a. You were dishonest when you told Mr Bromley that you were on your way to the police station to make a police report.

b. It is alleged that your conduct was designed to avoid making a police report because you had been dishonest about the theft of the laptop from your vehicle.

At 9:45am on Monday, 25 February 2019, it is alleged that an email was sent to you by the Company requesting that you provide a copy of the police report to Umesh Thakur. On or around 8:35am on Thursday, 28 February 2019, it is alleged that you attended a meeting in Mr Bromley’s office and during the meeting you said that you had not gone to a police station because you had no petrol in your vehicle.

It is alleged that:

a. you were dishonest when you told Mr Bromley that you had not gone to the police station to make a report, because you had no petrol in your vehicle.

b. It is alleged that you were dishonest about your ability to make a police report, because you had been dishonest about the theft of the laptop from your vehicle.

[41] Mr Brand’s evidence about these matters was that he had left his vehicle (Ford Territory AWD), which belonged to Kevin Brand, unlocked as unlike his normal vehicle, the Territory did not lock automatically after the keys were no longer in proximity to the vehicle. The Applicant further contends that he was not aware of the theft until after he had sent the first email to Mr Bromley and denies that he had any connection with the theft or had been dishonest with the Respondent at any time.

[42] In terms of the report to the Police, he accepted that he had been directed to do so, but did not as a result of his mental health at the time, combined with his emotional response to the theft of some personal items that were also stolen, and the indication later given by Mr Bromley that Beijer would make the report to help him out.

[43] The evidence supports the finding that Mr Bromley expressly directed Mr Brand to make a report to the Police. Given my views about the veracity of the competing evidence, I also find on balance that at various times Mr Brand did indicate that he was on his way to make the report and later that he did not make the report as he had no petrol for the car. I further find that none of these explanations was truthful and that Mr Brand did not make any attempt to report the matter to the Police.

[44] I also find that Mr Bromley eventually informed Mr Brand that he had made a Police report because the Applicant had not done so. This was not an offer to assist, but rather a reasonable action taken given Mr Brand’s continuing failure to do so.

[45] The common evidence is that having been advised that Mr Brand had left the vehicle unlocked, the Police took no action in relation to the matter.

[46] I am satisfied that the direction to report the theft of the laptop to the Police was a reasonable and lawful direction and that whilst Mr Brand’s personal circumstances are relevant, there is no proper explanation for the failure to do so.

[47] Beijer contends that the Commission should also conclude that Mr Brand was involved in the theft of the laptop given the timing and manner of the report made to the employer and the suspicious conduct of Mr Brand in not reporting the theft. Despite my reservations about Mr Brand’s evidence, there is nothing improbable about his explanation for the timing of the report to the employer. The linkage drawn by Beijer between the failure to report the theft to the Police and the earlier email about needing to be paid, given the circumstances, is not entirely unreasonable and does represent grounds for significant unease about the integrity of the Applicant. However, this is not, given the seriousness of the allegation and the absence of anything beyond the very circumstantial facts, sufficient foundation for the conclusion sought by the Respondent.

[48] In making this finding, and in my consideration of the disputed evidence and making my findings of fact on the allegations in this matter more generally, 9 I have had regard to the approach of Dixon J (as he then was) in Briginshaw v Briginshaw10 as follows:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

[49] Further, I note that in Budd v Dampier Salt Ltd 11 a Full Bench of the Australian Industrial Relations Commission said the following in relation to Briginshaw v Briginshaw:

“[14] The second ground of appeal is that the Commissioner erred in the application of the principle in Briginshaw. So far as relevant, that case decided two things. The first is that where allegations are made in civil proceedings which, if proven, might found criminal liability, the standard of proof remains the civil standard. It follows that it is necessary that the court only be satisfied on the balance of probabilities. The second thing is that in such a case a proper degree of satisfaction is required having regard to the seriousness of the allegations. In the words of Dixon J., as he was: “The nature of the issue necessarily affects the process by which reasonable satisfaction is obtained.”

[15] In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd the High Court pointed out that care needs to be taken in applying what was said in Briginshaw. Furthermore, it would be wrong, for example, to apply a standard of proof higher than the balance of probabilities. Counsel for the appellant contended that the Commissioner failed to have regard to the seriousness of the situation for the appellant in making findings of fact as to what had occurred and in deciding that there were no extenuating circumstances for the appellant's behaviour.

[16] In relation to fact finding, the Commissioner analyzed the evidence with care. In making findings he indicated how the findings were reached, in particular why he rejected some evidence and accepted other evidence. There was no error in the fact-finding process. To the extent that this ground involves a contention that the Commissioner did not exercise the statutory discretion properly it should also be rejected. Briginshaw was a case concerned with the nature of findings about conduct. It is potentially misleading and unnecessarily complicated to attempt to apply Briginshaw to the exercise of judgement required once the findings about conduct have been made. Section 652(3) specifies the way in which the discretion is to be exercised and the matters to be taken into account. Loss of employment is a serious matter and applications for a remedy are to be dealt with seriously. That the Commissioner so regarded it in this case is clear from his decision. There is no basis on which to conclude that the Commissioner's approach to the fact-finding process or to the exercise of the discretion was erroneous because of anything said by the Court in Briginshaw. The second ground of appeal must be rejected.”

Allegation 5 – damage to mobile phone

On or around 8:35am on Thursday, 28 February 2019, it is alleged that you attended a meeting in State Manager, Darren Bromley’s office and that during the meeting you provided Mr Bromley with your Company mobile phone, which had a smashed screen and a shattered exterior. It is alleged that you were asked by Mr Bromley how the mobile telephone was damaged and you said, ‘I accidentally dropped it’ while smirking.

It is alleged that:

a you misused Company property by intentionally damaging the mobile phone, in breach of your obligations under your Beijer Ref Contract of Employment (‘the Employment Contract’).

b. you were dishonest about how the Company mobile phone was damaged.

[50] Mr Brand accepts that there was some damage to mobile phone but asserts that it was not dissimilar to the damage to his personal phone that he produced during the hearing of this matter. He denied deliberately damaging the phone, claimed to have dropped it accidently, and denied smirking.

[51] I find that there was some damage to the mobile phone well beyond superficial scratching but that this could be explained by either deliberate action or through multiple impacts resulting from the phone being dropped. I accept that Mr Bromley considered that Mr Brand was smirking when the mobile phone was returned but this is also consistent both with a deliberate act and with not taking sufficient care of the phone and not being embarrassed about its condition.

[52] I am not persuaded that Mr Brand deliberately damaged the mobile phone but I find that he was reckless with its use and care and was unconcerned about the impact of his actions upon the company’s property.

Allegations 6, 7, 8, 9, 11, 12 and 15 - comments made in the workplace on 28 February 2019

6. On or around 10:00am on Thursday, 28 February 2019, it is alleged that while speaking with customers (N.C. and J.C.), you said words to the effect of ‘I’m short of money’ and ‘The way to make lots of money is to sell drugs’. N.C. responded by saying, ‘Don’t be stupid, Shane’. The impact of this conduct was to damage the reputation and good standing of the Company with its customers.

7 On or around 11:30am on Thursday, 28 February 2019, it is alleged that you approached Nick Martin’s desk and said to him, ‘When I’m bored, I masturbate’.

8 On or around the morning of Thursday, 28 February 2019, you were standing in the show room and you said words to the effect of, ‘I’ve used up 500 hours of sick leave and I got away with it’.

9 On or around midday on Thursday, 28 February 2019, it is alleged that you were loudly making comments about the workplace rules while in the showroom. It is alleged that Mr Bromley asked you, ‘If you’ve got something to say, please come to my office and say it’. You then walked past Nick Martin’s desk and said ‘fucking cockhead’.

11 Between 1:00pm and 2:00pm on Thursday, 28 February 2019, it is alleged that you were speaking to a customer at the sales counter, and a customer commented to you that you were back in the workplace and you said, ‘yeah, I’m back, but I’ve been demoted. The company hasn’t helped me out at all.’

12 At 3:55pm on Thursday, 28 February 2019, it is alleged that while you were cleaning in the showroom, you said words to the effect of, ‘This is bullshit’. Mr Bromley said to you, ‘If you’ve got a problem, please come to my office and discuss it with me’ to which you said words to the effect of, ‘No, I’m fine’.

15 On or around 4:10pm on 28 February 2019, it is alleged that you stopped undertaking your cleaning duties and began walking around the showroom, outside Mr Bromley’s office, punching your fist, while singing very loudly and aggressively, with an intention to disrupt, provoke and agitate other staff in the workplace.

[53] Beijer contends that these actions were variously unprofessional, disrespectful aggressive, misleading, capable of bringing the company into disrepute, a breach of his employment contract and in one case, sexual harassment.

[54] Each of these allegations is denied, however in evidence Mr Brand did appear to accept that he may have informed a customer in response to a question about his absence that he had been absent for a long period on “sick” leave. He also accepted that he was singing at some stages but denied doing so in an aggressive manner.

[55] All but the last allegation (15) rely upon the direct observations of Mr Martin. Given my findings about his evidence and that of Mr Brand, and my findings about the context for the day in question, I am satisfied that the events alleged in 6, 7, 8, 9, 11, and 12 occurred largely as alleged.

[56] The conduct associated with allegation 6, in particular, and allegation 11 to a lesser degree, was inappropriate and potentially damaging to the employer’s reputation with its customers. 12 The conduct associated with allegation 7 was grossly inappropriate and capable of representing sexual harassment.

[57] Allegations 8, 9 and 12 represent conduct that was to varying degrees, unfortunate, unprofessional and in the case of allegation 9, which I find was in practice directed to Mr Bromley, insubordinate.

[58] Allegation 15 was observed by Mr Bromley but apparently not by Mr Martin, who does not mention the incident in his statement. Although I accept that Mr Brand was singing and may have been making “air” punches at some stage in the showroom, I cannot discount the reasonable prospect that Mr Bromley’s jaundiced view of the Applicant may have influenced the degree to which he viewed that conduct, in the circumstances, as threating, as opposed to being merely annoying.

Allegations 10, 13, 14 and 16 – conduct associated with the cleaning on 28 February 2019

10 On the morning of Thursday, 28 February 2019, it is alleged that you were directed to clean and tidy the shelves in the show room. It is alleged that, during the course of the day, you used a bucket of water and a dry rag to clean the shelves in the show room. It is alleged that you intentionally left pools of water on several areas of the showroom floor during the day. It is alleged that, around midday, you were warned by Mr Bromley that you were not to leave water on the floor, because this presented a serious hazard in the workplace. It is alleged that you continued to leave water on the show room floor.

13 At 3:58pm on Thursday, 28 February 2019, it is alleged that you were loudly making inappropriate comments, Darren told you to stop making those comments. It is alleged that you then tipped the bucket, which was full of water, onto the floor of the showroom.

14 It is alleged that at 4:00pm on Thursday, 28 February 2019, you then used a mop to intentionally push the counter chairs around the floor of the showroom, so that they made a loud noise, with an intention to disrupt other workers and customers, with an intention to damage the reputation of the Company.

16 On or around 4:10pm on Thursday, 28 February 2019, it is alleged that you left the bucket and the rag that you were using to clean during the day on a carpeted area behind the sales counter. At that time, you had not finished cleaning up the water that you had spilt on the floor nor did you notify anyone that you had stopped cleaning that there was still a workplace hazard in the area (i.e. the water on the floor).

[59] Beijer contends that these allegations were variously that Mr Brand did not comply with a reasonable and lawful direction, intentionally created an occupational health and safety hazard, did not comply with Health and Safety requirements in breach of obligations under the Employment Contract, did not undertake duties diligently and faithfully to the best of his ability and did not act in the best interests of the Company in breach of his obligations under the Employment Contract.

[60] I find that these events occurred, albeit I am not satisfied that these were as serious as contended by Beijer. That is, I find that Mr Brand resented doing the cleaning work and as a protest was careless about spilling the water as he mopped, but he did make some endeavour to mop it up. This also extended to the manner in which he moved the chairs and reflects a less than appropriate and immature response to the circumstances.

Allegation 17 – “burn out” on leaving the car park

On or around 4:30pm on Thursday, 28 February 2019, it is alleged that you left the workplace and performed a burn out in your vehicle as you left the premises in your vehicle.

[61] On either case, the allegation that Mr Brand did a “burn out”, at least as commonly understood, is an exaggeration. At most, the acceleration and attitude of the vehicle when leaving the car park caused the wheel, where there was less weight, to spin and leave some rubber.

[62] Mr Brand denied the allegation and both he and Kevin Brand indicated that the vehicle concerned was incapable of doing a burn out or slipping a wheel due to its traction control. It is a reasonable inference that Mr Brand left the workplace on 28 February 2019 in an agitated state and this would be consistent with the allegation. It is also the case that the vehicle concerned appears to have optional traction control 13 and the suggestion that it was incapable of, in effect, leaving any rubber, is also an exaggeration.

[63] More significantly, Mr Bromley directly observed Mr Brand reverse into the car park and then caused the wheels to spin as he left. Subject to my observations above about the actual degree of the event, I accept that a form of the conduct as alleged took place.

Allegation 18 – use of company credit card

[64] Beijer contend the company credit card was supplied as a tool of trade and Mr Brand continued to use the credit card during his personal leave and during a period of “unauthorised leave” when the Applicant was not attending work and was not providing any justification for his absence. Further, Beijer alleged that Mr Brand had:

•  Made unauthorised purchases using the company credit card.

•  Refused to comply with the Company’s reasonable and lawful directions to provide receipts with respect to the abovementioned transactions.

•  Not acted in the best interests of the Company and had misused the Company’s property or services in breach of his obligations under the Employment Contract.

[65] There is no evidence that the parameters for the use of the company credit card were ever confirmed in writing. There is also very limited evidence about any discussions about those parameters and no direct evidence at all about what may have been said by anyone on behalf of Beijer at the time of its supply. I do however accept that the commonly held understanding, indicated in evidence by Mr Bromley and Mr Thakur that it was limited to reasonable business expenses, is a reasonable common sense understanding. This is supported, at least to some degree by a discussion between Mr Bromley and Mr Brand on 11 October 2018 that included Mr Brand being advised that filling his car every second day was not reasonable usage of the credit card. 14

[66] Mr Brand contended that the company credit card was part of the arrangements associated with his remuneration by virtue of his car allowance. When the car allowance was provided, Beijer indicated in writing as follows

“In addition (to the stated annual remuneration) … we will pay you a car allowance of gross $15,600 p.a. in equal weekly instalments of $300 with your wages.” 15

[67] There is no reference to the use of the company credit card to pay for fuel in addition to the car allowance; however, this appears to be common ground, at least to the extent that the car was being used for work purposes.

[68] The absence of any direct evidence about the precise parameters for the use of the credit card make it difficult for Beijer to persuade the Commission that its use by Mr Brand at all times when not at work was deliberate misconduct. However, it is clear that such expenditure was not expressly authorised and I do find that Mr Brand was recklessly indifferent to that issue. Further, on any version of the parameters applicable to the use of the company credit card, its use by Mr Brand to fuel his vehicle when he was not at work and not on any form of paid leave, was completely unjustified and improper.

[69] I also find that whilst Mr Brand eventually supplied the receipts for the credit card transactions, there was a long delay in doing so despite a reasonable and explicit direction to do so much earlier.

[70] I will return to the degree to which Mr Brand’s personal circumstances and Beijer’s response properly provide a context and mitigating conditions for the conduct that I have found above.

5. Was Mr Brand’s dismissal unfair within the meaning of the FW Act?

[71] Section 385 of the FW Act provides as follows:

“385 What is an unfair dismissal

(1) 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.”

[72] There is no dispute that the application was made within the time required by s.394(2) of the FW Act, or that Mr Brand was a person protected from unfair dismissal. 16 Mr Brand was dismissed, the employer is not a small business within the meaning of the FW Act, and the concept of a genuine redundancy is not relevant here.

[73] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.

[74] The FW Act relevantly provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

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

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal is 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.”

[75] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.

[76] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to Mr Brand’s capacity or conduct (including its effect on the safety and welfare of other employees).

[77] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.¹⁷

[78] The failure to follow a lawful instruction or comply with policy which was reasonable in the circumstances may provide an employer with a valid reason to terminate an employee’s employment.¹⁸ It is however, clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.¹⁹ Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.²⁰

[79] I have considered the various allegations relied upon by Beijer during the hearing. As outlined above, I have not been persuaded on the balance of probabilities that Mr Brand was involved in the theft of the laptop or that some of the other conduct was as serious as contended by the Respondent. However, I am satisfied that most of Mr Brand’s other conduct as alleged (including those associated with the failure to report the theft) did in fact occur, based on the documentary and witness evidence. Collectively, and for some allegations - singularly, these allegations constitute a valid reason for dismissal.

[80] I will return to the degree to which there exists mitigating circumstances and other factors that might go to whether the dismissal was harsh. However, my findings as to the conduct of Mr Brand represent a sound, defensible or well-founded reason for the dismissal in the context of his employment. As a result, there was a valid reason for the dismissal related to Mr Brand’s capacity or conduct (including its effect on the safety and welfare of other employees).

Section 387(b) – whether Mr Brand was notified of the reasons for dismissal.

[81] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken.²¹

[82] The evident purpose of this consideration is that notification of the valid reason to terminate must be given to the employee before the decision to terminate the employee is made and the notification needs to be in explicit and clear terms.

[83] Mr Brand was notified of the reasons.

Section 387(c) – whether Mr Brand was given an opportunity to respond to any reason related to his capacity or conduct.

[84] The relevant reasons are those arising from the valid reasons found by the Commission. This consideration is therefore directly related to the above discussion.

[85] This process contemplated by the FW Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly.²²

[86] I find that Beijer provided Mr Brand with an opportunity to respond to the reasons associated with his conduct that formed the basis of the dismissal. I do accept that Mr Brand was not originally notified of the actual allegations at the time of his suspension and when advised of the meeting date, and that it was not unreasonable to seek more time to respond to the allegations when such was disclosed. However, the extension that was provided by Beijer for any written response did in fact permit Mr Brand to take legal advice and to provide a response. The fact that the legal advice given was to reject the allegations but not to otherwise engage with the process and defend the dismissal, does not mean that Beijer failed to provide a proper opportunity for Mr Brand to provide a response to the alleged conduct.

Section 387(d) – any unreasonable refusal by the respondent to allow Mr Brand a support person.

[87] This consideration does not arise in this case. There was no refusal.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Brand – whether he has been warned about that unsatisfactory performance before the dismissal.

[88] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work.²³

[89] There were some issues about unsatisfactory performance raised by the Respondent during Mr Brand’s employment, including through the PIP. The non-conduct related matters were not, in my view, materially relevant to the dismissal.

[90] This consideration does not arise in this case.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Section 387(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.

[91] Beijer is a relatively large business and has access to dedicated human resources expertise, which was involved in the process leading to Mr Brand’s dismissal. The fact that this was based in New Zealand had no meaningful impact upon the procedures followed by the Respondent.

Section 387(h) - other matters considered to be relevant.

[92] Amongst other considerations, the Commission should have regard to the impact of the dismissal upon Mr Brand given all of the circumstances. This includes consideration as to whether the dismissal was harsh.²⁴ The question of whether a dismissal is “harsh” involves the exercise of discretion. The discretion is broad and is constrained only by the requirement to take into account the matters specified in s.387(a) to (h) of the FW Act, including any other matters the decision-maker considers to be relevant (s.387(h)). Ultimately, the determination of whether a dismissal is “harsh” requires the making of a broad evaluative judgment by the Commission.²⁵

[93] Consistent with this approach, a dismissal may, depending upon the overall circumstances, be considered to be harsh on the applicant employee due to the economic and personal consequences resulting from being dismissed or because it is disproportionate to the gravity of the misconduct.²⁶

[94] Mr Brand had been with Beijer for a relatively long period when dismissed and this meant that he lost his employment with the normal consequences associated with an event of that kind. I have found that the dismissal arose from the Applicant’s conduct and was not because Mr Brand had an apparent medical condition that became known to the Respondent. I will return to the potential impact of that condition in creating the context for the conduct and mitigating circumstances shortly. Subject to that consideration and given my other findings, whilst the consequences of the dismissal itself are regrettable, these largely flowed from his conduct and the nature of his response to the allegations.

[95] Mr Brand was not given any notice of termination or paid for any period in lieu of notice. He also was not paid out his accrued Long Service Leave (LSL) on the basis that Beijer formed the view that Mr Brand’s conduct constituted serious and wilful misconduct that permitted it to withhold the accrued LSL. 27 These factors must be weighed up when considering the fairness of the dismissal.

[96] In forming my ultimate assessment of this matter, I have also taken into account Mr Brand’s apparent medical condition more generally, and his personal circumstances at the time of the events on 28 February 2019, when most of the conduct occurred. For reasons outlined earlier, these factors are a relevant consideration and do provide some important context for that conduct. Whilst a reasonable inference can be drawn that these did impact upon the behaviour, there are three limitations about the degree to which this can be relied upon as a significant mitigating factor. Firstly, there is no, or very limited, objective evidence about the actual medical condition and the impact of such upon the conduct. Secondly, on 28 February 2019, whilst part of an informal “rehabilitation” process, Mr Brand was declared fit to resume his employment. Thirdly, Mr Brand in his own evidence largely denies that the conduct I have found occurred; rather than accepting that such took place but was the product of, or influenced by, his condition.

[97] The fact that the conduct on 28 February 2019 took place over a single day and was impacted, at least to some degree, by the arrangements made including the work he was assigned on that day, is also a relevant, albeit subsidiary, consideration given the circumstances disclosed by the evidence that is properly before the Commission.

Conclusions on the dismissal

[98] I have weighed all of the factors and circumstances of this application.

[99] As outlined earlier, the FW Act requires a global assessment having regard to the various relevant statutory considerations. In that context, procedural unfairness is an important consideration given the provisions of the FW Act but does not necessarily mean that the dismissal was unfair. This is reinforced by the objects relating to Part 3-2 Unfair Dismissal of the FW Act in s.381 which relevantly provides as follows:

“381 Object of the Part

… …

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[100] I have not been satisfied that some elements of the more serious allegations occurred in the manner contended by the Respondent but I have found the existence of various acts of misconduct and a valid reason for dismissal. There are some competing considerations as to whether the dismissal was harsh in all of the circumstances. This includes the seriousness of some of the demonstrated conduct and the context in which it occurred, the impact of the dismissal, the absence of payment in lieu of notice, the relatively long period of service and some personal mitigating factors discussed earlier.

[101] As revealed in various decisions of the Commission (and the Court), each case must be considered in its own circumstances and it is appropriate, amongst other factors, to have regard to whether any procedural deficiencies and other considerations made any difference to the overall fairness of the outcome.²⁸

[102] It is very unfortunate that, for reasons outlined earlier, Mr Brand did not take the opportunity prior to his dismissal to provide a more comprehensive response to the allegations. However, despite some concerns about aspects of the decision making process adopted by the Respondent, that process did provide the Applicant with a reasonable opportunity to provide an appropriate and fulsome response to the allegations. Regrettably, Mr Brand must bear the responsibility for his conduct and the absence of such a response. Further, the evidence now before the Commission leads me to the view that sufficient alleged conduct, including some serious misconduct, actually occurred to warrant the dismissal of Mr Brand in all of the circumstances. Some of the misconduct as found is also of such a nature that the absence of a prior warning about such matters is not significant.

[103] The aspect that has most troubled my final consideration is the fact that Mr Brand was not given notice or pay in lieu of notice, and was denied his accrued LSL. I would make it clear that I am not determining whether, as a matter of law, the conduct supported that action. Rather, I am considering as a matter of discretionary assessment, whether the dismissal with those consequences was harsh in all of the circumstances. 29

[104] When considered in context, and allowing for all of the relevant mitigating circumstances, the threatening phone call on 26 December 2018, the failure to report the theft of the laptop to the Police as directed and the misleading of Beijer about attempting to do so, the use of the company credit card during the periods of unpaid absence, and the more serious of the actions and comments on 28 February 2019, are strong countervailing factors leading to a finding, on balance, that the dismissal was not in all the circumstances, harsh.

[105] In conclusion, having considered and had regard to all of the matters raised by s.387 of the FW Act as set out in the decision above, I am, on balance, not persuaded that the dismissal was harsh, unjust or unreasonable.

6. Conclusions and Order

[106] Given my findings, the dismissal of Mr Brand was not unfair within the meaning of the FW Act. As a result, an Order 30 dismissing this application is being issued in conjunction with this decision.

COMMISSIONER

Appearances:

K Brand, on behalf of S Brand, the Applicant.

E Macey, of Ai Group on behalf of Beijer Ref Australia Pty Ltd.

Hearing details:

2019

Adelaide

29 and 30 July.

Printed by authority of the Commonwealth Government Printer

<PR710776>

 1   In written submissions of the Respondent.

2 Section 399(1) of the FW Act.

 3   Given the import of s.596(4) of the FW Act, no question of permission to appear arose in this matter.

 4   Jones v Dunkel and Another [1959] HCA 8; (1959) 101 CLR 298. See also Calleri v Swinburne University of Technology [2017] FWCFB 4187 at [31] and [32].

 5   DB1 – attached to exhibit R1.

 6   DB16 – attached to exhibit R1.

 7   The contract was signed by Mr Brand on 27 February 2019.

 8   UT22 - attached to exhibit R3.

 9   Allegations 1 to 5 in particular.

 10   (1938) 60 CLR 336.

 11   (2007) 166 IR 407 at [14] - [16].

 12   There is no reliable suggestion that Mr Brand was a drug dealer or that this was the impression that he was seeking to leave.

 13   Accepted by the Brands.

 14   Exhibit R1 at [58].

 15   Document UT5 attached to exhibit R3.

 16   Section 382 of the FW Act.

17 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at [36].

18 Cox v South Australian Meat Corporation [1995] IRCA 287 (13 June 1995) per von Doussa J.

19 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 (17 March 2000) per Ross VP, Williams SDP, Hingley C; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 (11 May 2000) per Ross VP, Acton SDP and Cribb C, and Rode v Burwood Mitsubishi AIRCFB Print R4471 (11 May 1999) per Ross VP, Polites SDP, Foggo C.

20 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 (8 October 2002), per Ross VP, Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.

21 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.

22 RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

23 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.

24 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

25 Reliable Petroleum Pty Ltd v Murray [2017] FWCFB 5843 at [17].

26 See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.

 27   Long Service Leave Act 1987 (SA) s.5(4)(a).

28 See Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155 as examples.

 29   See Potter v WorkCover Corporation, (2004) 133 IR 458 at para. 55 and Annetta v Ansett Australia Ltd, [(2000) 98 IR 233 at para. 10, I note that Mr Brand may have other means to dispute the LSL issue under the relevant legislation.

 30   PR711027.