DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shokry Milad; Medhat Botros
v
Melbourne Health T/A Royal Melbourne Hospital
(U2019/10312; U2019/10638)

Application for an unfair dismissal remedy

[1] The employment of each of Shokry Milad and Medhat Botros (referred to in this decision as the Applicants) was terminated by Melbourne Health trading as Royal Melbourne Hospital (Melbourne Health) following consideration by their employer of the same set of circumstances. Mr Milad commenced employment in January 2003 and was dismissed with effect from 27 August 2019. Mr Botros commenced employment with Melbourne Health in April 2001 and was dismissed with effect from 5 September 2019.

[2] Each of the Applicants was employed by Melbourne Health, which employs approximately 9,000 employees, as an environmental services employee responsible for cleaning the hospital’s operating suites. Mr Milad’s unfair dismissal application under the Fair Work Act 2009 (the Act) was made to the Fair Work Commission (the Commission) on 15 September 2019 and Mr Botros’ on 22 September 2019.

[3] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Those matters are whether the application was made within the period required in subsection 394(2); whether the person was protected from unfair dismissal; whether the dismissal was consistent with the Small Business Fair Dismissal Code; and whether the dismissal was a case of genuine redundancy. Neither party put forward that any of the other initial matters required such consideration. In relation to the elements within s.396, I find that the applications of each of Mr Milad and Mr Botros were lodged with the Commission within the 21 day period for making such applications; that at the relevant time each Applicant was dismissed they were a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[4] Evidence was given in these proceedings by each Applicant and, on behalf of Melbourne Health, by Mr Dobre Milenkovski, the Melbourne Health Support Services Manager and Mr Troy Cox, its Human Resources Manager. Ms Susan Garbutt, Melbourne Health’s Perioperative Services Manager attended and gave evidence pursuant to an Order for attendance issued by the Commission, upon request of the Applicants.

[5] The Applicants were represented by Mr Guindy Ghobrial, Solicitor, and Melbourne Health by Mr Jack Tracey, of Counsel, instructed by Mr David Hartnett of K & L Gates. Permission for both parties to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Act, with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)).

BACKGROUND

[6] Mr Botros’ employment was terminated with effect from 5 September 2019 and Mr Milad’s from 27 August 2019. Each was terminated for serious misconduct arising from a set of circumstances first brought to Melbourne Health’s attention in July 2019. On 16 July 2019 Ms Susan Garbutt, Perioperative Services Manager sent an email to her colleague Mr Dobre Milenkovski, Support Services Manager advising him that she had seen a number of staff reporting to him in the dark in the Level 2 Theatre Tearoom where they spent an hour or more not working. The Tearoom is generally available to staff with access to the operating theatres, including cleaners, but is not accessible to all Melbourne Health’s employees. 1 Ms Garbutt’s report led to an examination of the situation by Melbourne Health; the issuing of allegations to the two Applicants in these proceedings, Mr Milad and Mr Botros; and ultimately their dismissal. Mr Milad and Mr Botros were not the only people dismissed arising from the circumstances; the evidence indicates that there was potentially a total of 19 people involved in the complaint.2

[7] The complaint made by Ms Garbutt is set out in her email to Mr Milenkovski and another person sent on 16 July 2019:

“Hi Dobre

I have been coming in earlier this week and it has been an interesting exercise with regard to the 7 to 8 staff who are in our tearoom in the dark for over an hour or more at a time.

Can I ask what their shift time is and why they would be having such long breaks when there is clearly cleaning to be done? Particularly since we keep failing audits.

Graham can you give me the swipe access for the night shift last night as the tearoom is not a communal hospital meeting point. A great deal of our cleaning should be getting done on the afternoon shift and I think it is time to shake things up and ensure our most important area is getting cleaned properly

Kind Regards” 3

[8] Ms Garbutt provided evidence in these proceedings, responding to an Order for her attendance issued by the Commission upon the request of the Applicants. Her evidence not only explained what she had seen and what she reported to Mr Milenkovski, but also her reasons for doing so. In particular her evidence indicated the following:

•  On 16 July 2019 she arrived at work at about 5:30 AM and saw seven or eight people in the darkened Tearoom.

•  Her reference to the employees having been in the room for an hour or more was a combination of her having been there at 5:30 AM and then having spoken to the theatre coordinator from which she “understood they had been there for a period of time, between an hour or two hours. But I was unsure of their shift or break time. So that is why I referred to, over an hour or more”. 4

•  She could not identify the workers she saw in the Tearoom but she could see several people who she recognised as employees of Melbourne Health. 5

•  While observing what she did on 16 July 2019 she had not observed the same events previously. Her knowledge of the working conditions of staff, provided through an enterprise agreement, is that they have a 30-minute meal break.

•  She has not personally had work interactions with Mr Milad and she does not have personal knowledge of his tasks. 6 She would recognise Mr Botros but does not have specific knowledge of his duties.7

•  The reference in her email to “particularly since we keep failing audits” is within the context of audits being undertaken of the operating theatres. 8 The audits to which Ms Garbutt referred have been failing for some time.9

•  The cleaning which is required to be done is of the Royal Melbourne operating theatres, which being trauma theatres can be involved in activities ranging from major trauma to minor cases.

•  She was not privy to the disciplinary process; having sent the email to Mr Milenkovski she had no further involvement in the matter. 10

• 

[9] Following receipt of the report from Ms Garbutt, Mr Milenkovski undertook certain actions generally, and then specifically in relation to the two Applicants in this matter (who were not the only people involved in the enquiries made by Mr Milenkovski).

[10] The actions taken by him generally included these:

•  He informed his manager, Mr Michael McCambridge, of the complaint 11 and on 18 July 2019 he contacted Mr Troy Cox, a Human Resources Manager within Melbourne Health’s People and Culture Department and told him “that a number of the Environmental Services employees had been observed spending lengthy periods of time in the Level 2 Theatre Tearoom [Tearoom] and it appeared that they may have been doing so during their working hours rather than performing their respective duties”.12

•  He then obtained and “viewed CCTV footage of the Tearoom for the days that Ms Garbutt had mentioned in her email. I observed many environmental services assistants spending significant periods of time in the Tearoom while, on duty. Their primary role is Cleaning the operating theatres, the nightshift ordinarily work from 10.30pm to 6.30am or 7am”. 13

•  Later, he met with Mr McCambridge and Mr Cox and others to report what he observed on the CCTV footage, with a more senior manager, Mr Davoli, Executive Director People and Culture, requesting he “view an entire week of CCTV footage to determine the extent of the conduct”. 14 He did that, giving evidence that:

“Over the next week or two I viewed CCTV footage for the period 9 to 15 July 2019. The footage showed that 19 Environmental Services employees had been spending significant amounts of time in the Tearoom while they should have been on duty.” 15

•  A product of his review of the video footage was a spreadsheet setting out the total amount of time each employee was alleged to have spent in the Tearoom between 9 and 15 July 2019, as well as the percentage of the time this represented of each employee’s working hours.

•  These reviews led him to be “shocked to discover how much time the employees were spending in the Tea Room”. 16 His review in turn led him to have a further discussion with unnamed people within the People and Culture Department, but including Mr Cox and Mr McCambridge, in which he “was told to contact each of the 19 employees to advise them they were being suspended while allegations against them were being investigated and to provide them with letters confirming their suspension during the investigation.”17

[11] Specifically, in relation to the Applicants in the matters presently before the Commission, Mr Milenkovski’s evidence is that the video review led him to form the following views:

•  Mr Milad:

“9. The CCTV footage showed Mr Milad entering the Tearoom and remaining there for the following periods:

(i) 9 July 2019 for 3 hour 26 minutes in total; deducting breaks.

(ii) 11 July 2019 on for 3 hours in total, deducting breaks.

(iii) 12 July 2019 for 3 hours and 50 minutes in total, deducting breaks.

10. Mr Milad spent 44% of his time during that week in the Tearoom (deducting time for breaks he was entitled to, which he may in fact have taken elsewhere in addition to the time spent in the Tearoom).” 18

•  Mr Botros:

“The CCTV footage showed Mr Botros entering. the Tearoom and remaining there for the following periods:

(i) 10 July 2019 for 1 hour 41 minutes.

(ii) 11 July 2019 on two occasions for 25 minutes in total.

(iii) 16 July 2019 for 51 minutes.” 19

[12] After forming these views, Mr Milenkovski contacted Mr Milad and Mr Botros, with his contact including these steps:

•  Mr Milad:

•  Mr Milenkovski’s evidence is that on 30 July 2019 he spoke with Mr Milad and provided him with a letter setting out the allegations and directing him to attend a meeting. 20 Mr Milad contests that there was a verbal discussion between the two on that date and alleges that he was not given time to read the letter at the time, being told that he should read it when he went home.21

•  On 5 August 2019, Mr Milenkovski and Mr Cox and a union representative Ms Glenda Meddings, 22 met with Mr Milad ostensibly to receive the latter’s response to the allegations. Mr Milenkovski records Mr Milad having said words to the effect that he sometimes comes to work early and that sometimes he helps cover the Tearoom.23 Mr Milenkovski’s handwritten notes on the subject of the meeting on 5 August 2019 records that in response to his explanation about the meeting purpose Mr Milad “stated he has mentioned this to Gary in the past. Shokry said he showed Gary who the people were in that tearoom and in emergency area”. The same notes record Ms Meddings as saying “I know the time is not exceptable (sic) – 9pm starts → at times →can we consider this”. They also record in response to a question about his role the answer being “and it was only ground floor + 1st floor and no other areas”.

•  On 6 August 2019, the following day Mr Milenkovski wrote to Mr Milad expressing dissatisfaction about his initial responses and informing him he needed to attend a further meeting with Melbourne Health on 8 August 2019, with it being said that:

“Having carefully considered your responses to the allegations raised in our correspondence to you dated 30 July 2019, Melbourne Health remains unsatisfied with your behaviour and conduct in relation to the allegations. You said you regularly come in to work early and sometimes clean the tearoom. In all it is found that you removed yourself for a minimum of 10 hours and 16 minutes over 3 shifts, during which you claimed payment for hours worked when you were not actively engaged in completing duties as an Environmental Services employee. Consequently we are satisfied that a finding of serious misconduct is appropriate.

Consequently the purpose of the meeting is to provide you with the opportunity to respond to this finding and to show cause as to why Melbourne health should not proceed with a recommendation to terminate your employment.” 24

•  On 8 August 2019, Melbourne Health, represented by Mr Cox and Mr Milenkovski again met with Mr Milad, with Mr Milenkovski noting that Mr Milad had his union representative in attendance. Mr Milenkovsi and Mr Cox say that Mr Milad said words to the effect that for “for 20 years we have sat in this room. We have not have any notice not to stay in this room. Sometimes we cover shifts. All other staff members” 25 and “sometimes I cover cleaning of the room”.26

•  On 22 August 2019 Mr Milenkovski wrote to Mr Milad notifying him of another meeting to be held on 27 August 2019. He was told this was necessary because the allegations against him had been substantiated and that in particular:

“Having considered your responses in the meetings on 5 and 8 August 2019 we remain unsatisfied with your conduct in relation to the time you spent in the Level 2 Theatre tea room across the shifts you worked on 9, 11 and 12 July 2019. As previously advised we are satisfied that a finding of serious misconduct is appropriate in these circumstances. A recommendation for the termination of your employment has consequently been prepared and we now wish to advise you of the outcome to this recommendation.” 27

•  Mr Milad was informed he was dismissed in the meeting held on 27 August 2019 and was given a letter confirming the circumstances, characterised by Melbourne Health as serious misconduct, with him being informed of the following:

“The meeting on 8 August 2019 was arranged for you to provide your response to our findings that the allegations of serious misconduct, as documented in our correspondence to you dated 30 July 2019, had been substantiated and to show cause as to why Melbourne Health should not terminate your employment.

Having discussed the allegations with you on 5 and 8 August 2019, and having considered all the evidence available including your responses, and in the circumstances where a finding of serious misconduct has been made, we advise you that the outcome to this matter will be the termination of your employment effective Tuesday 27 August 2019.” 28

•  While Mr Milad was paid his statutory entitlements on termination, he was not given any payment in lieu of notice of termination. 29

•  Mr Botros:

•  Mr Milenkovski’s evidence is that on 30 July 2019 he spoke with Mr Botros and provided him with a letter setting out the allegations and directing him to attend a meeting. Mr Botros contests that there was a verbal discussion between the two on that date and he alleges that he was not given time to read the letter at the time, being told that he should read it when he went home. 30 Mr Milenkovski’s evidence notes that the letter refers to incorrect dates for the allegations:

“That is because Mr Botros was the only morning worker (ie, not night shift) of the 19 employees. He worked from 5am to 1.30pm. I used the start date of the night shift for each of the 19 employees in the spreadsheet, Which meant that incidents which occurred, for example, at 5am on 11 July were recorded as occurring on the 10 July shift, as that is when the shift started. I explained that error to Mr Botros during the meetings.” 31

•  On 7 August 2019, Mr Milenkovski and Mr Cox, met with Mr Botros on his own to receive the latter’s response to the allegations. Mr Milenkovski records Mr Botros as declining the opportunity when asked if he wanted a union representative present for the discussion. In the course of the discussion Mr Botros gave some personal reasons for being in the Tearoom with the lights off; the context of which was that he needed some time alone. 32

•  On 22 August 2019 Mr Milenkovski wrote to Mr Botros notifying him of another meeting to be held on 27 August 2019, which was then subsequently changed to 28 August 2019. The letter informed him the meeting was necessary because the allegations against him had been substantiated and that in particular:

“Having carefully considered your responses to the allegations raised in our correspondence to you dated 30 July 2019, Melbourne Health remains unsatisfied with your behaviour and conduct in relation to the allegations. You said that you went in to the darkened tea room as you were upset about personal issues you were experiencing and didn't want other employees to see you upset. In all, it is found that you removed yourself for a minimum of 2 hours and 57 minutes over 3 shifts between your rostered starting time of 5:00am and 7:00am, during which you claimed payment for hours worked, as well as an early start allowance, when you were not actively engaged in completing duties as an Environmental Services employee. Consequently we are satisfied that a finding of serious misconduct is appropriate.

Consequently the purpose of the meeting is to provide you with the opportunity to respond to this finding and to show cause as to why Melbourne health should not proceed with a recommendation to terminate your employment.” 33

•  Mr Botros attended the meeting on 28 August 2019 as directed and on this occasion was supported by a union representative. He is recorded by Mr Milenkovski as having said in the meeting that “if we conducted a further review we would not find any other occasions where he had spent time in the Tearoom while on duty” 34 and that “its dark in the room and I move when the lights come on” and that “if I did wrong I can explain it”.35 His union representative suggested that Melbourne Health should take into account that he had worked for the Respondent for 19 years; that he had no prior issues with his work; and that he had a young family.36 Mr Cox’s evidence on what Mr Botros said about his presence in the Tearoom is this:

“Mr Botros said words to the effect that he knew he had made mistakes. He said he had only been doing it since the middle of June. Mr Botros maintained that the Tearoom was dark on the occasions he spent time in it while on duty. He stated that if we conducted a further review we would not find any other occasions where he had spent time in the Tearoom while on duty prior to the middle of June.” 37

•  Mr Milenkovski’s evidence is that after the meeting concluded on 28 August 2019, he and Mr Cox conducted a further review of the CCTV footage. Mr Cox’s evidence is that the review was conducted by Mr Milenkovski, with the latter’s evidence on the subject being that:

“… in order to verify Mr Botros' contention that if we conducted a further review we would not find any other occasions where he had spent time in the Tearoom while on duty. The CCTV footage showed that on 3 July 2019 Mr Botros spent 1 hour and 34 minutes in the Tearoom and on 4 July 2019 he spent 1 hour and 20 minutes in the tearoom.” 38

•  A further meeting with Mr Botros was convened on 2 September 2019. Prior to the meeting he was informed that Melbourne Health did not believe his contention that when he was in the Tearoom it was dark:

“In the meeting you insisted that the tearoom was darkened when you spent time in the tearoom. You also stated that if we looked back any further we would not find any other times when you entered the tearoom in circumstances similar to those identified at the start of your shifts on 10, 11 and 16 July 2019.

In reviewing the footage we are satisfied that the tearoom lights were switched on, on each of the occasions that you entered the tearoom on 10, 11 and 16 July 2019. This is inconsistent with your responses and your insistence that the lights were turned off at these times: We consequently find that you have been dishonest in your responses to the original allegations.

We have also taken the opportunity to review footage from shifts prior to those originally reviewed and have identified the following:

1. On 3 July 2019 you entered the tearoom at 4:58am and then departed the tearoom at 5:46am, You then re-entered the tearoom at 5:58am and departed at 6:48am. The time you spent in the tearoom from the 5:00am start of your rostered shift until 7:00am was 1 hour and 34 minutes.

2. On 4 July 2019 you entered the tearoom at 5.14am and then departed the tearoom at 5:18am, You then re-entered the tearoom at 5:39am and departed at 6:54am. You then re-entered the tearoom at 6:54am and departed at 6:55am. The time you spent in the tearoom from the 5:00am start of your rostered shift until 7:00am was 1 hour and 20 minutes.

Again we find that you have not been honest in your responses and/or representations that you do not frequently enter the tearoom and spend extended, unauthorized periods of time in the tearoom rather than attending to your duties at the commencement of your shifts.

In considering an outcome to these matters; we remain unsatisfied with your responses to the original allegations, our findings and the opportunity extended to you to show cause as to why Melbourne health should not terminate your employment.

Further we also now find that you have been purposefully dishonest in your responses to mitigate any outcome that would be extended to you as a consequence of these allegations.” 39

•  Mr Botros attended the meeting as directed on 2 September 2019, with Mr Milenkovski’s file note recording that he attended with a representative of his union. Mr Milenkovski’s gave evidence that “Mr Botros said words to the effect that he did not know how many times he had been in the Tearoom in the month of July” and that he did not provide any further explanation for his conduct. 40 At the conclusion of the meeting, the Melbourne Health managers then advised Mr Botros he was dismissed, which was later confirmed in a letter dated 5 September 2019, with the letter confirming Mr Milenkovski regarded the allegations in the 30 July and 30 August 2019 correspondence as being substantiated.

•  While Mr Botros was paid his statutory entitlements on termination, he was not given any payment in lieu of notice of termination. 41

LEGISLATION

[13] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which is as follows:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

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

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

[15] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way: 42

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

•  a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 43

•  a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 44

•  it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 45

•  the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 46 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

•  the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 47” (original references)

CONSIDERATION

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

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

[17] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship:

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, common sense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 48

[18] Where an employee has been dismissed without notice (summary dismissal) for serious misconduct the Commission may find that, although there was a valid reason for the dismissal, the dismissal was harsh because summary dismissal was a disproportionate response. Where the conduct involves serious misconduct, the principle established in Briginshaw v Briginshaw 49 may be relevant. While an “elevated standard”,50 the standard of proof remains the balance of probabilities but “the nature of the issue necessarily affects the process by which reasonable satisfaction is attained” and such satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion”.51 Within the context of an unfair dismissal matter, Budd v Dampier Salt Ltd,52 the Full Bench carefully considered the approach to application of the requisite standard of proof:

“[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.” (references omitted)

[19] It is not the Commission’s role to “stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court.”⁵³ However, I “must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.”⁵⁴

[20] For there to be a valid reason related to the Applicant’s conduct, I must find that the conduct occurred and justified termination.⁵⁵ Further; “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 56

[21] Where an employee has been found to have been dishonest, it does not necessarily follow that there was a valid reason for the dismissal. As a Full Bench of the Australian Industrial Relations Commission said, “in some cases, the fact that the applicant has lied might support the conclusion that the termination was not harsh, unjust or unreasonable: McIndoe v BHP Coal Pty Ltd 57. In other cases despite the applicant having lied it might be held that there was no valid reason for the termination: Allied Express Transport Pty Ltd v Anderson58. Whilst the facts of particular cases might be instructive in a general sense, it is inappropriate to attempt to compare the facts of one case too closely with the facts of another. It is the totality of the relevant facts in each case which must be considered in the context of both the particular employment relationship and the employer’s undertaking.”⁵⁹

[22] It has been said by the Full Bench that “the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 60 The Full Bench has also found there is not a “clear rule of law defining the degree of misconduct justifying summary dismissal”,61 and that it “is certainly well established that, for the purposes of s.387(a), it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason)”. Further:

“[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd  Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice” and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. “Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd Buchanan J said:

“[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful misconduct’ are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term ‘serious misconduct’ is under consideration an evaluation of what conduct represents ‘serious’ misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).”” 62 (endnotes omitted)

[23] The Respondent’s case in this matter for each Applicant consists largely of several connected steps:

•  The initial complaint from Ms Garbutt who asked the question about a group of employees generally: “why they would be having such long breaks when there is clearly cleaning to be done? Particularly since we keep failing audits”;

•  The Melbourne Health managers’ review of a week’s video footage, which satisfied Mr Milenkovski that 19 employees had been “spending significant amounts of time in the Tearoom while they should have been on duty”;

•  The allegations put to the Applicants, and their subsequent denials or provision of reasons seen by Melbourne Health to be unsatisfactory explanations.

[24] There is an important context to the cleaning undertaken by environmental services employees – they were, according to Ms Garbutt, engaged to clean operating suites, the audits of which had repeatedly failed. Her evidence on the subject included the following:

(Mr Ghobrial – for the Applicants) “What do you mean by saying, "particularly since we keep failing audits"? --- So there are internal and external audits conducted regularly, which I receive the results from for all areas. And there are certain elements of those in the operating suite that are the responsibility of the cleaners, that failed those audits.

What do you mean by audits? Is it, for example, infection control audits? --- Yes, so cleaning audits. So they will go around and check that cleaning has been conducted, through various methods. That may be visible dirt, it may be that they mark it with a special light and then come back with a UV to see if the area's been wiped, and they're done internally and by external - - -

So do you mean this is specialised infection control audits, means that they are taking samples and sent it to the lab? --- They're cleaning audits. They're audits of our cleaning standards.

Just a sec. Cleaning standards.

THE COMMISSIONER: Ms Garbutt, can I just check what they're cleaning? --- So the staff cleaning the environment in the operating suite. So it might be walls, floors, doors, scrub sinks. It may be some equipment but not medical equipment.

And it's actually in the operating theatre? --- Yes, in all the operating theatres, yes. And the recovery, the admission bays through the peri-op services.

And this might seem a question of the bleeding obvious but - - -? -- -No, that's

okay.

I'm assuming – well, you tell me what sort of operations might be carried out in these - - -? --- Yes, so the Royal Melbourne theatres, they're trauma theatres, so they will do anything from major trauma to minor cases. So all the procedures are done through there.

All right, thank you? --- Yes.

MR GHOBRIAL: For how long have you been failing audits? --- The hospital, some of the audits fail on components of the audits, and that's happened over a period of time. That's a continuous improvement monitoring system. I couldn't tell you exactly. I don't conduct the audits, I just see the results, and that sometimes components are done well, sometimes components are not. That's the audit process.

But for your department? --- I couldn't give you the exact details of all the audits but I'm sure I can get them if you require them.

Roughly for how long? --- I believe this current audit system has been in since accreditation, around 2014. And some audits are passed well, some audits are not. It depends on what the audit is and when it's done, and who it's done by.” 63

[25] Having raised her questions with Mr Milenkovski, Ms Garbutt had no further involvement in the matter. After raising the matter with his manager and others, Mr Milenkovski then commenced a video review of a period of time, indicated in his evidence as being for the period 9 to 15 July 2019 (noting that Ms Garbutt sent her email on 16 July 2019) and later, in the case of Mr Botros, of other shifts including 3 and 4 July 2019.

[26] Even though Melbourne Health relied upon the video footage in order to form the views it did, and the Applicants sought an order for production of the video which was issued and complied with, neither party tendered the video into evidence. Other than a brief sliver of footage, none was viewed in the Commission’s hearing. I have therefore not relied upon the detail of the footage for making my findings in this decision. However, it is pertinent to observe that the footage is from a single camera, positioned high above the floor focussed on an entry from a corridor, shown at the top of the screen, with a training room to the left and the access to the Tearoom at the bottom of the screen. To the bottom right are toilets. The only way in and out of the Tearoom is through the area shown by the camera. 64

[27] Those matters of fact about what may be seen in the video footage, and especially that the only way in and out of the Tearoom is through the area shown by the camera, were not disputed by the Applicants.

[28] The analysis conducted by Mr Milenkovski was relatively simple – he played the footage, recorded the time at which a particular person passed through the vision from the corridor, and then recorded the time they went in the reverse direction, back toward the corridor. His analysis was recorded onto spreadsheets which have been provided in evidence. Basic as it may be the analysis conducted of the surveillance footage is good evidence. That is, it is capable of being relied upon by me as evidence of when particular employees entered and left the Tearoom.

[29] That proposition though is subject to qualification. It should not be relied upon by me if it is found to include such number of errors as would cause the analysis to be unreliable. It should also not be relied upon if Mr Milenkovski is found to have been an unreliable witness.

[30] Despite some endeavours by the Applicants to characterise Mr Milenkovski’s evidence as unreliable, there is insufficient evidence on the subject matters for me to not accept his evidence.

[31] In this regard it was argued that he had solicited a bottle of whisky as a gratuity from one or both of the Applicants; that he too extracted himself from the workplace for extended periods; and that he otherwise acted inconsistently with his obligations as an employee. The first two matters were referred to in the Applicants’ material filed in accordance with the Commission’s hearing directions, whereas the third was not, and consequently I did not allow questions in cross-examination on the third, unforshadowed matter. In relation to the first two matters Mr Milenkovski denied he had ever solicited a gift from employees after which the line of questioning was not pursued. He was not cross-examined on the subject of his alleged absences from the workplace. I therefore reject the endeavours to frame Mr Milenkovski’s evidence as not to be relied upon.

[32] A minor, contextual clarification which flows from the correction of this error is that when Mr Milad is alleged to have committed misconduct on 9, 11 and 12 July 2019, those dates are a shorthand for an allegation of misconduct on a shift which commenced on 9 July 2019, etc, with the earliest of the allegations actually being at a time on the day after 9 July 2019, etc.

[33] As explained above, Mr Milenkovski committed the results of his video review to a spreadsheet, which was included in his witness statements. The document 65 is in two parts; a summary of alleged transgressions for 19 named employees, and a day-by-day analysis for each employee, presumably intended to support the material in the summary sheet. Other than for some minor discrepancies which ultimately have no effect on the final presentation of Melbourne Health’s complaint, the spreadsheets support the allegations made.

[34] There are some minor inconsistencies between this summarised information and the allegations put to Mr Milad in the investigation process. He was informed in the 30 July 2019 allegations letter that on 9 July 2019 he had made himself unavailable for cleaning duties for a net 3 hours 26 minutes (not 3 hours 33 minutes); on 11 July 2019 for a net 3 hours (not 3 hours 5 minutes); and on 12 July for 3 hours 40 minutes (not 3 hours 55 minutes). Again, I do not consider those inconsistencies to have much effect on the final disposition of the matter.

[35] As a result, and for no other reason, I accept the core of Melbourne Health’s allegations are made out: the Applicants were in the Tearoom for the times and durations alleged.

[36] Each Applicant has put forward evidence which may explain why they were in the Tearoom and likely not working, as well as submissions relating to the procedure adopted by Melbourne Health to investigate the matters about which it was concerned. This material may be summarised as including these matters:

•  Mr Milad:

•  The Tearoom is part of the workplace, and employees are not forbidden “from entering the room, cleaning it or to fulfil other work tasks and sometimes to have a break”. Even if it is found he spent time in the room “this does not mean that I removed myself from completing my duties, I was still available and inside the workplace”. 66

•  His duties included the cleaning of the Level 2 Theatre Tearoom, as all the night shift team members usually work across the hospital. 67

•  He cannot recall events on the days in question due to the elapse of time, his age, the impact of working night shifts for many years, and because he has no notes of the days. 68

•  He does not know how the conclusion could have been reached that he made himself unavailable to undertake his cleaning duties. He never had a complaint about his cleaning duties in more than 18 years of work with the worksite being perfectly clean during his shifts. 69

•  For many years he started his shifts one hour or more before the scheduled start time in order “to keep the workplace shiny and infection free”. 70

•  The employer’s evidence was not comprehensively disclosed to him. In the first meeting, on 5 August 2019, he was given no elaboration of the allegations, other than to be shown “a foggy video record” and he was provided with no dates, time or location about the recording, estimating that he was shown only 10 seconds of footage. When he requested a copy of the CCTV, the Melbourne Health managers refused to provide him with a copy. 71

•  He argued to Mr Milenkovski and Mr Cox in the first meeting on 5 August 2019 that in the absence of them providing him with reliable evidence to support their allegations he would not be able to provide any response to the allegations. 72

•  Whereas the Melbourne Health second letter to him, dated 6 August 2019 referred to the employer having carefully considered his responses he does not recall having provided any responses due to Melbourne Health refusing to provide him with a copy of the video footage. 73

•  In relation to the contention in Melbourne Health’s 6 August 2019 letter that he was “not actively engaged in completing duties as an Environmental Services employee”, the point is made that the assertion gives him no clue as to which duties were not completed, and that “In fact I did complete all my duties on a daily basis”. 74

•  He estimates the total time spent in the disciplinary discussions with Melbourne Health on 5 and 8 August 2019 was about 10 minutes. 75

•  The circumstances of the allegations and his dismissal involve several discriminatory and other reasons. He argues he was treated as he was for reason of his age (62 years) and race (he is from an African background). 76

•  Mr Botros:

•  The Tearoom is part of the workplace, and employees are not forbidden “from entering the room, cleaning it or to fulfil other work tasks and sometimes to have a break”. Even if it is found he spent time in the room “this does not mean that I removed myself from completing my duties, I was still available and inside the workplace”. 77

•  He does not know how the conclusion could have been reached that he made himself unavailable to undertake his cleaning duties. He never had a complaint about his cleaning duties in more than 18 years of work with the worksite being perfectly clean during his shifts. 78

•  For many years he started his shifts one hour or more before the scheduled start time in order “to keep the workplace shiny and infection free”. 79

•  The employer’s evidence was not comprehensively disclosed to him. In the first meeting, on 7 August 2019, he was given no elaboration of the allegations, other than to be shown “a foggy video record” and he was provided with no dates, time or location about the recording, estimating that he was shown only 3 – 4 seconds of footage. He argued to the managers in the meeting that they would not be able to provide any evidence to support their allegations, to which they replied they had CCTV records. When he requested a copy of the CCTV, the Melbourne Health managers refused to provide him with a copy. 80

•  He argued to Mr Milenkovski and Mr Cox in the first meeting on 7 August 2019 that in the absence of them providing him with reliable evidence to support their allegations he would not be able to provide any response to the allegations. 81 He also argued to the managers that he had personal reasons for being in the room, but with the lights off with him needing some time alone.

•  Whereas the Melbourne Health second letter to him, dated 22 August 2019 referred to the employer having carefully considered his responses he does not recall having provided any responses due to Melbourne Health’s failure to provide him with a copy of the video footage, arguing that the allegations in the second letter were “completely false and misleading”. 82

•  In relation to the contention in Melbourne Health’s 22 August 2019 letter that “[i]n all, it is found that you removed yourself for a minimum of 2 hours and 57 minutes over 3 shifts” the point is made that this contention was put forward without any evidence to support the allegations or how Melbourne Health counted the hours and minutes. 83

•  The third letter from Melbourne Health, dated 30 August 2019 included fresh allegations, relating to the shifts on 3 and 4 July 2019, which he considers have been put forward without supporting evidence. In his view the fresh allegations were a response by Melbourne Health to his objection that it was relying on “false evidence”. 84 He declined to respond to them since they were not supported by evidence.85 This contention is a reference to the following passage in the 30 August letter:

“We have also taken the opportunity to review footage from shifts prior to those originally reviewed and have identified the following:

1. On 3 July 2019 you entered the tearoom at 4:58am and then departed the tearoom at 5:46am, You then re-entered the tearoom at 5:58am and departed at 6:48am. The time you spent in the tearoom from the 5:00am start of your rostered shift until 7:00am was 1 hour and 34 minutes.

2. On 4 July 2019 you entered the tearoom at 5.14am and then departed the tearoom at 5:18am, You then re-entered the tearoom at 5:39am and departed at 6:54am. You then re-entered the tearoom at 6:54am and departed at 6:55am The time you spent in the tearoom from the 5:00am start of your rostered shift until 7:00am was 1 hour and 20 minutes.” 86

•  He repeated his request to see the video footage in the third meeting, on 2 September 2019, which was refused. 87

•  He considered Mr Milenkovski and Mr Cox to be acting against him with hostility due to his African ethnicity. 88

•  He estimates the total time spent in discussions in the 3 meetings on 7 and 28 August and 2 September 2019 was about 15 minutes. 89

[37] The arguments by each Applicant about their presence in the Tearoom essentially distil to these arguments:

•  Neither is able to recollect their movements on the days in question for a number of reasons, including the passage of time;

•  Each Applicant was permitted to be in the Tearoom, since they were not forbidden from entering it;

•  If shown to be in the Tearoom, this does not mean they removed themselves from cleaning duties and there were never complaints about the fulfilment of their regular duties;

•  Mr Milad had an additional legitimate purpose for being in the Tearoom, because part of his duties were to clean the room;

•  Mr Botros had personal reasons for being in the room, but with the lights off, with him needing some time alone on occasion.

[38] It is unsurprising that a person engaged as a cleaner would be unable to recall their precise movements in and out of a particular room on a day several weeks in the past (by the time the allegations were put to the Applicants). Equally, in the absence of anything memorable about any of the days in question, it is to be expected that neither could recollect what they were doing on the day or days mentioned in Melbourne Health’s questioning. It is also unremarkable that they were not prohibited from entering the Tearoom; but this is not a case of being in a room contrary to direction. However, the allegation is not that either Applicant was in the room for incidental periods, or in the room contrary to instruction, but rather that each was in the room for an extended period thereby absenting themselves from work.

[39] It is also unremarkable that one of the employees, Mr Milad, was required to be in the room, since he had to sometimes clean it if the person otherwise responsible for the duties was not there. 90 However no firm evidence was provided by Mr Milad about the extent of the tasks which may be required in order to clean the Tearoom or the amount of time that may normally be needed to undertake them. There is nothing within his evidence on this subject that would support his denial of being in the Tearoom for an aggregate of several hours.

[40] The fundamental problem for the Applicants with these aspects of their case is that Mr Milenkovski’s evidence, which I have accepted, is that his review of the video footage showed the men entering and then not leaving the Tearoom for extended periods on multiple occasions.

[41] My first task, given that the allegation made against each Applicant relates to serious misconduct, is to consider whether the conduct alleged actually occurred. Mr Milenkovski’s evidence is not dependent on inexact proofs and the like. Instead, it rests on observations he made after viewing the video evidence; making positive physical identifications of each Applicant; recording the time each entered and left. It rests as well on his evidence that the camera angle records the only point of access and egress to the room. None of that evidence was undermined in the hearing before me and instead is to be accepted.

[42] I find then that each of Mr Milad and Mr Botros was in the Tearoom for the extended periods alleged by Melbourne Health:

•  Mr Milad:

•  9 July 2019 for 3 hour and 26 minutes after deduction of breaks;

•  11 July 2019 for 3 hours after deduction of breaks;

•  12 July 2019 for 3 hours and 50 minutes after deduction of breaks.

•  Mr Botros:

•  3 July 2019 for 1 hour and 34 minutes;

•  4 July 2019 for 1 hour and 20 minutes;

•  10 July 2019 for 1 hour and 41 minutes;

•  11 July 2019 for 25 minutes;

•  16 July 2019 for 51 minutes.

[43] Absenting oneself from work, even for a short time, without legitimate reason, is plainly capable of being misconduct. Melbourne Health characterise the Applicants’ conduct of having unauthorised time away from work as time theft, 91 which it was, being an endeavour to be away from the requirement to work without any authorisation or other acceptable reason to do so.

[44] I make allowances for the fact that neither man said they recollected the days in question, which in all probability is a truthful answer for a cleaner, notwithstanding that each later categorically denied in their oral evidence they had been in the room on the dates alleged for the length of time alleged. 92 However, recollection of the specific days in question is potentially unnecessary when the baseline evidence is that extended periods, sometimes hours at a time, were spent in the room. The issue for which a response is required is not “were you in the room?”, but “why were you in the room for so long?”. The latter question is one that reasonably could be answered without having to rely upon fickle memories of a day no different from any other.

[45] Each of Mr Milad and Mr Botros argued to Melbourne Health that there was no proof of the things alleged; that such proof as they were shown was illegible or was falsified. Despite such contentions, neither Applicant actively sought to undermine the Respondent’s evidence, or to provide cogent evidence as why it should not be accepted. Not only is there no answer to the question “were you in the room?”, there is little that would answer the decidedly more important question “why were you in the room for so long?”.

[46] Mr Botros contended about the allegations put to him that “I never received a complaint about my cleaning duties for more than 18 years of work for the employer, my worksite was perfectly clean and shiny during my shifts”, with Mr Milad giving similar evidence. 93 To the extent that this was an endeavour to say that each did not need to perform cleaning duties because they had finished their work for the day, it is plainly self-serving, as well as unsupported in the evidence. There is nothing before me that would lead to a finding that either was employed only for the completion of a particular task or tasks. Mr Milad’s evidence on the subject needs also to be viewed in light of the fact that he was also occasionally allocated supervisory duties, with him accepting that as such he would at times be a role model for other cleaners.94

[47] Mr Botros’ explanation to Mr Milenkovski and Mr Cox on 7 August 2019 that he occasionally needed time alone in the room in the dark for personal reasons and that he did not want anyone to see him was not greatly elaborated upon in his oral evidence. 95 When he was asked about the subject in cross-examination, Mr Botros retreated from the explanation first by saying he had gone to the room for water96 and then suggesting that he had given the original explanation thinking Mr Milenkovski was like a friend to him, “[b]ut now I don't want anyone to bring this up”.97 Whereas personal difficulties may be capable of being a plausible reason to extract oneself from other employees or the workplace itself, there is nothing of substance before me that would cause such a finding to be made in the case of Mr Botros.

[48] The product of these considerations is that I am satisfied that Mr Milad and Mr Botros were in the Tearoom on the dates and for the durations alleged by Melbourne Health; that each had absented themselves from work during the periods in question; and that neither has a plausible or reasonable explanation on the subject. I am also satisfied that each Applicant chose not to be truthful with Melbourne Health when it made enquiries, deliberately choosing not to explain why they absented themselves for extended periods. I find therefore that the actions of Mr Milad and Mr Botros of absenting themselves from work by being in the Tearoom for extended periods were serious misconduct.

[49] In the case of Mr Milad, I find that the serious misconduct pertains to the three occasions of the shifts commencing on 9 July 2019 (for 3 hour 26 minutes after deduction of breaks); 11 July 2019 (for 3 hours after deduction of breaks) and 12 July 2019 (for 3 hours and 50 minutes after deduction of breaks). None of the explanations he advanced would reasonably offset a finding that his conduct was serious misconduct. His misconduct is aggravated by the fact that he would occasionally be allocated supervisory duties.

[50] In the case of Mr Botros, I find that the serious misconduct pertains to the occasions of the shifts commencing 3 July 2019 (for 1 hour and 34 minutes); on 4 July 2019 (for 1 hour and 20 minutes); 10 July 2019 (for 1 hour 41 minutes after deduction of breaks), on 11 July 2019 (for 25 minutes) and 16 July 2019 for (51 minutes after deduction of breaks).

[51] In the case of both Applicants, I am satisfied on the evidence that Melbourne Health held valid reasons for its dismissal of both Mr Milad and Mr Botros related to their capacity or conduct (including its effect on the safety and welfare of other employees).

(b) whether the person was notified of that reason

[52] The evidence is that each of Mr Milad and Mr Botros were notified of the reasons held by Melbourne Health for their dismissal.

[53] In the case of Mr Milad, the notification was in the termination letter dated 27 August 2019, in which he was advised that his termination followed allegations of serious misconduct documented in an earlier letter dated 30 July 2019, which Melbourne Health advised were substantiated following responses given by him on 5 and 8 August 2019. 98

[54] Mr Botros was advised of the reasons held by Melbourne Health for his dismissal in a termination letter dated 5 September 2019. That letter advised him that his termination followed allegations of serious misconduct documented in Melbourne Health’s correspondence to him dated 30 July and 30 August 2019, which Melbourne Health advised were substantiated following responses given by him on 7 and 28 August and 2 September 2019. 99

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

[55] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal. 100 While so, it is also accepted that “an opportunity to respond” amounts to an opportunity to provide reasoning to a decision maker that would, all things being equal, allow a reasoned explanation to cause the decision maker to accept what is proffered and to change from their foreshadowed path.

[56] The Applicants raise three issues in relation to their capacity to respond to the allegations. First, each says that the reference in Mr Milenkovski’s first letter to them that the letter was further to discussions earlier that day that they do not recall any discussion with him on that day. Second, each assert that the length of the various meetings was short, implying that they were not given an opportunity for such response as they wished to make to be heard. Finally, each asserts they were denied the opportunity to view the CCTV footage and make other criticisms of what footage they were allowed to see.

[57] It may be that the first contention is accurate; there is not precise evidence before the Commission on the subject. Irrespective, the subject is not decisive in the Commission’s overall consideration of the fairness of the Applicants dismissal. At best for the Applicants it may be that Mr Milenkovski merely handed the letter to each without actually discussing its contents.

[58] In relation to the second proposition, the evidence shows that each did respond to Melbourne Health about the allegations being made against them either denying the allegations, or suggesting an alternative construction of the circumstances. While the conversations in the meetings may not have been especially long, the evidence does show that each Applicant engaged with the employer about the allegations and gave an explanation that required and was given consideration.

[59] In the case of Mr Milad, the handwritten notes of Mr Milenkovski and Mr Cox together record him as having put forward that he comes in early and that sometimes he helps cover the tearoom; 101 that he has sat in the Tearoom for 20 years and that he has not had notice he should not sit in the room.102

[60] The managers’ notes record that in their meetings with Mr Botros he said that he came in early and that he sometimes sat in the room because of his personal issues and that he would go out of the room when the lights came on. 103 At the meeting on 28 August 2019, the managers’ notes record Mr Botros as having reiterated his need to be in the room for personal reasons and saying that if he did wrong he could explain it.104 In the meeting held on 2 September 2019, the managers’ notes record that Mr Botros explained that he was not sure how many times he went into the room in July.105 I am satisfied that there was a sufficient opportunity in the meetings held with each Applicant for each to put forward to Melbourne Health any response of substance they wished the Respondent to consider.

[61] The third matter is the argument put forward by each Applicant that they were denied the opportunity to view the video footage upon which Mr Milenkovski relied both in forming the allegations as well as deciding they were substantiated.

[62] Mr Milad critiques what he was shown on 5 August 2019 as being perhaps 10 seconds of “a foggy video record” with him seeing no dates, times or location. When he requested a copy of the CCTV, the Melbourne Health managers refused to provide him with a copy and his witness statement refers to repeated requests to see the video footage  106 Mr Botros also critiques what he was shown as being foggy without identifying material, but estimating that he saw only 3 – 4 seconds of footage. His witness statement also refers to repeated requests to see the video footage. 107

[63] Against these claims, Melbourne Health argue that it gave each Applicant the opportunity to review the video footage. 108 It also argued in the evidence given by Mr Milenkovski about Mr Milad there was a privacy issue:

“We did not provide him with copies of the footage for privacy reasons but we allowed him to view the footage during meetings. I do not recall during which of the meetings he watched the footage.” 109

[64] These claims are each faintly ridiculous and objectively go no way in satisfying the obligation Melbourne Health had to provide an opportunity for the Applicants to respond to the allegations made against them. While the “3 – 4 seconds” and “10 seconds” assertions made by each are probably hyperbole, I doubt that what was shown to either was a substantial opportunity to review the footage.

[65] Melbourne Health’s whole case is based upon a review of video footage showing various people entering and then sometime later leaving the Tearoom. It is foreseeable that after an individual is seen entering the room there may have been any number of other people enter or leave or both. Melbourne Health submitted that Mr Milenkovski spent in total “approximately two weeks looking at the footage of the relevant dates”. 110

[66] Not providing an opportunity to each Applicant to seriously, meticulously review the video footage was an unsatisfactory as well as unreasonable decision by Melbourne Health. The argument that the privacy of others may have been compromised by allowing the Applicants to view the whole of the footage is a confected nonsense. While others may have been seen entering and leaving the Tearoom, the Applicants were entitled to see those people coming and going, and form their views about those people as much as Melbourne Health’s managers. Perhaps they could be called as witnesses in these proceedings; perhaps the Applicant’s circumstances could be distinguished from or coalesced with the circumstances of other people seen in the footage as well. Perhaps in the end, there is no real issue of privacy of others and the footage merely reinforces what Melbourne Health contends.

[67] The video footage was finally provided to each Applicant shortly before the commencement of the hearing, pursuant to an Order made by me at the request of the Applicants.

[68] I have considered carefully whether the failure of Melbourne Health to provide the video footage to the Applicants is such as to cause a finding to be made of unfair dismissal. While it is open to me to do so, I do not in relation to these applications. Neither Mr Milad and Mr Botros engaged to any great extent during the investigation process with the core of their employer’s complaint – that they had repeatedly spent long periods sitting in the Tearoom not working. Their response was not along the lines of an admission coupled with a disbelief that the length of time was wrong or that the number of occasions may not be consistent with their recollection. Instead, their responses were designed to provide excuses. Their oral evidence – given after each had received the video footage and had an opportunity to review it – was to categorically deny the alleged conduct. No questions were put to Mr Milenkovski seeking to undermine his summarised review of the video footage.

In finality, while I have some disquiet that because of Melbourne Health’s conduct the Applicants were not afforded an opportunity to fully understand the allegations made against them, such disquiet does not cause me to find their dismissal to have been unfair.

(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

[69] The evidence shows there was no unreasonable refusal by Melbourne Health to allow the Applicants to have a support person present to assist at any discussions relating to their dismissal.

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

[70] Neither Mr Milad nor Mr Botros was dismissed for reason of unsatisfactory work performance. Accordingly, this criterion is a neutral factor in my consideration of whether either was unfairly dismissed.

(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

[71] There is no evidence before the Commission that the size of the employer’s enterprise impacted on the procedures it followed in effecting either Applicant’s dismissal.

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[72] The evidence shows that Melbourne Health had access to dedicated human resource management specialists or expertise about the procedures to be followed in effecting the Applicant’s dismissal.

(h) any other matters that the FWC considers relevant

[73] Each Applicant put forward that their dismissal was a product of corruption and racism on the part of Mr Milenkovski and that dismissal was an excessive penalty given their age and length of service, 111 or for other factors, including that Mr Botros had children who were studying.112 They also argued their dismissal was unreasonable because of differential treatment given to other employees involved in the same set of circumstances, but who were not dismissed.

[74] The matters of corruption, racism and ageism are unproven and not much more than generalised assertions; easy to make; harder to prove in the absence of compelling evidence. I do not find that these matters were a contributor to the Applicants’ dismissals.

[75] In relation to the Applicants’ ages and length of service, I note that Mr Milad is 62 years old and worked for Melbourne Health for 16 years. 113 Mr Botros is 55 years old and worked for Melbourne Health for 18 years.114 While it is well recognised that the age and length of service of an employee may cause a dismissal to be found to be unfair, I do not find this to be the case here. The matter of Mr Botros’ family circumstances was not explored in the evidence given in the hearing, and I place no weight on his contention.

[76] I recognise that each Applicant will find difficulty in obtaining employment again and that each has lost the benefit of what may be regarded as otherwise secure employment. Notwithstanding that situation, each Applicant was not doing the job for which they were paid, which was to clean and ensure the highest standards of safety in the operating theatres in a major hospital. The reason for their dismissal was not a momentary lapse or a single instance of inattention to their duty. The Applicant’s age and length of service are factors which may weigh in favour of a finding their dismissal was harsh, unjust or unreasonable. 115 However, weighed against such a finding is the fact of their misconduct, which is significant and not the subject of any remorse or contrition put forward by either.

[77] Each Applicant argued their dismissal was unfair owing to differential treatment between them and others employee’s whose conduct was also investigated arising out of the same set of circumstances, but not dismissed. 116 Mr Cox’s evidence records there were in fact different outcomes for different employees involved in the overall investigation;

“Out of the 19 employees identified on the CCTV footage, 11 were dismissed, 1 resigned and the rest were provided with warnings. The primary factor in determining the outcome for each employee was the amount of time they spent in the Tearoom instead of working”. 117

[78] While referred to briefly in the Applicants’ outlines of submissions, and other than Mr Cox’s evidence, the subject was not explored in the oral evidence. A contention that two or more employees involved in the same incident, but with different sanctions meted out to them may lead to a finding of unfairness, however:

“… even then the Commission must approach the matter with caution. Specifically, the Commission must be conscious that there may be considerations subjective to the circumstances of an individual that caused an employer to take a more lenient approach in an allegedly comparable case. For example, a worker guilty of particular misconduct justifying termination might be shown leniency because of extreme need or stress arising from the serious illness of a close dependent. Another worker guilty of the same misconduct could not necessarily rely upon the leniency shown to the first worker as a basis for demonstrating that his or her termination was harsh, unjust or unreasonable. Many other examples could be constructed.” 118

[79] The response to misconduct will be a matter of discretion for the reason that the “time, place and circumstance of one breach, the circumstances of the offender and the implications for adequate administration of an enterprise, will seldom coincide”. 119

[80] In this case, there is insufficient evidence before the Commission either to find that other employees were treated differently to the two Applicants or that the circumstances of the other employees were comparable to the Applicants. Accordingly, I am unable to find that the Applicants were treated differently to other employee or that such different treatment would render their dismissals unfair.

[81] After considering each of the criteria within s.387, I am satisfied that there was a valid reason for Melbourne Health’s dismissal of both Mr Milad and Mr Botros and that there were no substantial procedural defects or other matters which would cause me to find that notwithstanding their being a valid reason for their dismissal that the dismissal was otherwise unfair. Neither has admitted their misconduct or shown remorse or contrition for what either has done.

[82] As a result, I am unable to find that either Mr Milad or Mr Botros was unfairly dismissed.

[83] The applications for unfair dismissal made by Mr Milad and Mr Botros are dismissed and orders to that effect are issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr G Ghobrial, Solicitor for the Applicants

Mr J Tracey, of Counsel for the Respondent

Hearing details:

2020.
Melbourne;
10-11 February.

Printed by authority of the Commonwealth Government Printer

<PR718250>

 1   Transcript, PN 71 – 73.

 2   Exhibit MH 1, Witness Statement of Dobre Milenkovski pertaining to Shokry Milad, [7].

 3   Exhibit MH 1, Attachment DM – 1.

 4   Transcript, PN 55.

 5   Ibid, PN 157.

 6   Ibid, PN 98.

 7   Ibid, PN 158 – 159.

 8   Ibid, PN 80 – 82.

 9   Ibid, PN 89 – 92.

 10   Ibid, PN 139.

 11   Exhibit MH 1, [5].

 12   Exhibit MH 3, Witness Statement of Troy Cox pertaining to Shokry Milad, [4].

 13   Exhibit MH 1, [5].

 14   Ibid, [6].

 15   Ibid, [7].

 16   Ibid.

 17   Ibid, [11].

 18   Exhibit MH 1.

 19   Exhibit MH 2, Witness Statement of Dobre Milenkovski pertaining to Medhat Botros, [9].

 20   Exhibit MH 1, [12].

 21   Exhibit Milad 1, Witness Statement of Shokry Milad, [7] – [8].

 22   Exhibit Milad 4, Applicant’s Bundle of Documents (Milad), Form F3, item 3.1, (4).

 23   Exhibit MH 1, [13], Attachment DM – 4, 5.

 24   Exhibit MH 1, Attachment DM 5.

 25   Ibid, Attachment DM 6.

 26   Exhibit MH 2, Attachment TC 1.

 27   Exhibit MH 1, Attachment DM – 7.

 28   Exhibit MH 1, Attachment DM – 8.

 29   Ibid.

 30   Exhibit Botros 2, Witness Statement of Medhat Botros, [7] – [8].

 31   Exhibit MH 2, [11].

 32   Exhibit MH 2 – Attachment DM – 4.

 33   Ibid, Attachment DM – 5.

 34   Ibid, [15].

 35   Ibid, Attachment DM – 6.

 36   Ibid.

 37   Exhibit MH 4, Witness Statement of Troy Cox pertaining to Medhat Botros, [11].

 38   Exhibit MH 3, [16].

 39   Exhibit MH 2, Attachment DM – 7.

 40   Ibid, [18].

 41   Exhibit MH 2, Attachment DM – 9.

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

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

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

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

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

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

 48   Selvachandran v Peteron Plastics (1995) 62 IR 371, pg.373.

 49   [1938] HCA 34, [(1938) 60 CLR 336.

 50   Wong v Taitung Australia Pty Ltd [2017] FWCFB 990, [11].

 51   [1938] HCA 34, [(1938) 60 CLR 336, p.363, p.350.

 52   [2007] AIRCFB 797, (2007) 166 IR 407.

53 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185, [46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

54 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185, [46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.

55 Edwards v Giudice [1999] FCA 1836, [7].

 56   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

 57   PR901846, 2 March 2001.

 58   (1998) 81 IR 410, 413.

59 Woodman v The Hoyts Corporation Pty Ltd PR906309 (AIRCFB, Giudice J, Watson SDP, Grainger C, 11 July 2001), [30].

 60   Titan Plant Hire Pty Ltd v Malsen [2016] FWCFB 5520, [28].

 61   Sharp v BCS Infrastructure Support Pty Limited, [2015] FWCFB 1033, [36].

 62   Ibid.

 63   Transcript PN 80 – 91.

 64   Ibid, PN 767 – 773; 788 – 791.

 65   Exhibit MH 1, Attachment DM – 2, pertaining to Mr Milad; and Exhibit MH 2, Attachment DM – 2, pertaining to Mr Botros.

 66   Exhibit Milad 3, Outline of Arguments on Merits pertaining to Shokry Milad, 4c, (a) – (b).

 67   Ibid, 4c (d).

 68   Ibid, 4c (e).

 69   Exhibit Milad 1, [11] – [12].

 70   Ibid, [14].

 71   Ibid, [17] – [19].

 72   Ibid, [20].

 73   Ibid, [23].

 74   Ibid, [24].

 75   Ibid, [26].

 76   Exhibit Milad 3, [3].

 77   Exhibit Botros 3, Outline of Arguments on Merits pertaining to Medhat Botros, 4c, (a) – (b).

 78   Exhibit Botros 2, [11] – [12].

 79   Ibid, [14].

 80   Ibid, [17] – [21].

 81   Ibid, [22].

 82   Ibid, [25].

 83   Ibid, [26] – [27].

 84   Exhibit Botros 3, 4c (f).

 85   Exhibit Botros 2, [34] – [35].

 86   Exhibit MH 2, Attachment DM – 7.

 87   Exhibit Botros 2, [36[ – [37].

 88   Ibid, [38].

 89   Ibid, [39].

 90   Transcript, PN 267.

 91   Exhibit MH 3, [17]; MH 4, [16].

 92   Milad, Transcript PN 253 – 254; Botros, Transcript PN 330 – 349.

 93   Exhibit Botros 2, [12]; Exhibit Milad 1, [12].

 94   Exhibit MH 3, [15]; Transcript, PN 232 – 236.

 95   Exhibit MH 2, Attachment DM – 4.

 96   Transcript, PN 332 – 333.

 97   Ibid PN 339.

 98   Exhibit MH 1, Attachment DM – 8.

 99   Ibid, Attachment DM – 8.

 100   Chubb Security Australia Pty Ltd v Thomas (2000), unreported, AIRCFB, Print S2679 [41].

 101   5 August 2019; see Exhibit MH 1, Attachment DM – 4; Exhibit MH 3, Attachment TC – 1.

 102   8 August 2019; see Exhibit MH 1, Attachment DM – 6, Exhibit MH 3, Attachment TC – 2.

 103   7 August 2019; see Exhibit MH 2, Attachment DM – 4; Exhibit MH 4, Attachment TC – 1.

 104   28 August 2019; see Exhibit MH 2, Attachment DM – 6.

 105   2 September 2019; see Exhibit MH 2, Attachment DM – 8.

 106   Ibid, [17] – [19].

 107   Ibid, [17] – [21]; [30] – ]36].

 108   Transcript, PN 977.

 109   Exhibit MH 1, [18].

 110   Transcript, PN 945.

 111   Exhibit Milad 3, item 4d(4); Exhibit Botros 3, item 4d(5).

 112   Exhibit Botros 3, Form F2, Unfair Dismissal Application Form, item 3.2(10(c)); Exhibit MH 4, Attachment TC – 2.

 113   Exhibit Milad 3, items 1(a), 4d(2).

 114   Exhibit Botros 3, items 1(a), 4d(3).

 115   Streeter v Telstra Corporation Limited [2008] AIRCFB 15; (2008) 170 IR 1, [27].

 116   Exhibit Milad 3, item 6d(2); Exhibit Botros 3, item 6d(2); Transcript, PN 923.

 117   Exhibit MH 3, [14]; Exhibit MH 4, [16].

 118   Sexton v Pacific National (ACT) Pty Ltd, AIRC (2003) unreported, Print PR931440, [36].

 119   Electricity Commission of New South Wales t/a Pacific Power v Nieass, Full Commission of Industrial Relations Commission of NSW (1995) 81 IR 46.