[2022] FWC 221
The attached document replaces the document previously issued with the above code on 4 February 2022.
The paragraph numbering has increased by three paragraph numbers. Paragraphs [95] to [285] have been renumbered as paragraphs [95] to [288]. Wording within the Decision is unchanged.
Associate to Deputy President Binet
Dated 8 February 2022
| [2022] FWC 221 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John Keron
v
Westpac Banking Corporation
(U2021/3637)
DEPUTY PRESIDENT BINET |
PERTH, 4 FEBRUARY 2022 |
Application for an unfair dismissal remedy
[1] On 28 April 2021, Mr John Keron (Mr Keron) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Westpac Banking Corporation (Westpac).
[2] Mr Keron was dismissed from his employment with Westpac after 35 years of service after an internal investigation found that he had inappropriately touched a female employee, and verbally abused another after an offsite workshop and social event.
[3] On 13 May 2021, Westpac filed a Form F3 - Employer’s Response to unfair dismissal application stating that it had no jurisdictional objections to the Application.
[4] On 27 May 2021, the parties participated in a conciliation but the matters in dispute could not be resolved.
[5] Taking into account the parties wishes and circumstances, a Hearing, rather than a Determinative Conference, was determined to be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a Hearing in Perth on 29 September 2021, 30 September 2021 and 1 October 2021 (Hearing).
[6] Directions for the filing of materials in advance of the Hearing were issued to the parties on 9 June 2021 (Directions).
[7] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.1
[8] Both parties sought permission to be represented at the Hearing.
[9] Having considered the submissions of the parties, leave was granted to both parties to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
[10] At the Hearing, Mr Keron was represented by Ms Maria Saraceni of Francis Burt Chambers and Westpac was represented by Mr Rayne Wade of Ashurst.
[11] The Directions required the parties to file their witness evidence in chief in advance of the Hearing.
[12] In accordance with the Directions Mr Keron filed in advance of the Hearing a witness statement setting out his evidence in chief. At the Hearing he tendered a document setting out amendments and corrections to his witness statement which was marked as Exhibit A1. At the Hearing Mr Keron gave further oral evidence and was cross examined by Mr Wade. A bundle of additional documents were also tendered during the Hearing on his behalf and marked as Exhibit A3.
[13] Mr Keron applied for, and was granted, an order that Ms Pauline Gazzard (Ms Gazzard) attend the Hearing to give evidence in relation to his dismissal. 2 Ms Gazzard is the Regional General Manager of the Business Division of Westpac in Western Australia. She was Mr Keron’s support person in the course of the investigation that resulted in his dismissal. Ms Gazzard gave oral evidence at the Hearing and was cross examined by Mr Wade. Ms Gazzard produced an additional document at the Hearing which was marked Exhibit A2.
[14] In accordance with the Directions Westpac filed witness statements setting out the evidence in chief of the following witnesses:
• Ms Monica Smith – formerly an Assistant Relationship Manager (Ms Smith);
• Mr Mathew Leon Rehayem – Case Manager, HR Case Management, Employee Care (Mr Rehayem); and
• Mr James Cameron Watson – State General Manager Business Banking WA (Mr Watson).
[15] At the time of the events which led to Mr Keron’s dismissal Ms Smith was employed by Westpac in the Commercial and Business Bank in the Perth City branch. Ms Smith was a witness to the events which led to Mr Keron’s dismissal. Mr Rehayem conducted the investigation which led to Mr Keron’s dismissal. Mr Watson was involved in the investigation process.
[16] Westpac also filed a witness statement on behalf of an employee who was involved in the events which led to Mr Keron’s dismissal. Westpac applied for and were granted an order that the identity of that witness remain confidential. 3 The witness is consequently referred to in these reasons for decision as Witness A.
[17] All of the Westpac witnesses gave further oral evidence at the Hearing and were cross examined by Ms Saraceni.
[18] The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties prior to the Hearing date (DCB). The DCB was admitted at the Hearing as an exhibit and marked Exhibit DCB1. The DCB includes two excerpts of CCTV footage of the events which led to Mr Keron’s dismissal. The first footage shows events which occurred inside The Camfield on the night of 10 March 2021 (First Footage). The second footage shows events which occurred immediately outside The Camfield on the night of 10 March 2021 (Second Footage).
[19] Final written submissions were filed on behalf of Mr Keron on 25 October 2021. Final written submissions were filed by Westpac on 8 November 2021.
[20] In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.
[21] Westpac is an Australian bank and financial services provider headquartered in Sydney Australia. Westpac was established in 1817 and has grown to be one of the major banking organisations in Australia.
[22] Mr Keron commenced employment with Westpac on 9 December 1985 as a single 17 year old youth. At the time of the dismissal he was a 53 years old married man with two adult children.4
[23] He has no formal qualifications. Over the course of his 35 year employment with Westpac he was promoted from a Customer Service Officer to, at the time of his dismissal, a Senior Relationship Manager in the Commercial Banking Branch based at the Fremantle branch. In that role he had two staff reporting to him. He in turn reported to Mr Brett Banting the Regional General Manager South Region. 5
[24] During the course of his employment, Mr Keron was engaged pursuant to a series of different contracts. The terms and conditions of his employment at the time of his dismissal were regulated by a contract dated 21 Mach 2019 (Employment Contract) and the Westpac Group Enterprise Agreement 2019 (Agreement). 6
[25] During his employment, Mr Keron was required to undertake regular training relevant to his role as well as in connection with Westpac's policies, including those policies regulating employee behaviour. 7
[26] Mr Keron's training record shows that he undertook what is called ‘Doing the Right Thing’ training on 10 January 2021 (DTRT Training). The DTRT Training is an online
program comprising several modules, including one titled ‘working together’ (Working Together Module). 8
[27] The Working Together Module has a significant focus on how employees are expected to interact and support one another. It includes training focussed on victimisation, discrimination and sexual harassment. 9
[28] On all accounts prior to his dismissal, Mr Keron had an unblemished employment record and had been the recipient of internal awards. 10
[29] On Wednesday 10 March 2021, Mr Keron attended an offsite professional development day at Optus Stadium organised by Westpac (Workshop). The Workshop was compulsory for Western Australian Westpac business banking staff and was attended by approximately 160 Westpac employees. The workshop program ran from 8:30am to 4pm. 11
[30] Following the Workshop, Westpac had organised a sundowner at The Camfield (located near to the Optus Stadium) as a social event for staff (Sundowner). The Sundowner was scheduled to run from 4:30pm to 6:30pm. The majority of the staff that attended the Workshop attended the Sundowner however, attendance was not compulsory and employees were not paid for their attendance. 12
[31] Westpac employees who attended the Workshop and Sundowner wore smart casual wear, and not uniforms. 13
[32] There was no Westpac signage at the Sundowner, but staff were encouraged to gather at the south western side of the main bar. 14
[33] Westpac had arranged a bar tab and finger food for the Sundowner. Each staff member was provided with a wristband which identified them as being a Westpac guest and enabled them to access free drinks at the bar. The tab was scheduled to end at 6:30pm however, it was eventually closed at around 7pm. 15
[34] The number of Westpac employees at the Sundowner gradually diminished as the event wore on and by 7pm only a small number remained. 16
[35] Mr Keron remained at The Camfield and continued to socialise with others who stayed on after 7pm. After the Westpac tab was closed Mr Keron purchased drinks on his personal Mastercard at 7:11pm, 7:42pm, 8:13pm and 9:26pm. Although Mr Keron had his corporate credit card with him, he did not use it because he understood that such expenses would not be authorised by the Westpac Credit Card policy. 17
[36] Mr Keron estimates that he drank 6 full strength pints and four to five Canadian Club whiskeys over a period of roughly five hours at The Camfield. He was described as appearing intoxicated. 18
[37] The group remaining after 7pm included Ms Smith and Witness A. Witness A is a 35 year old married woman with a ten year old child and an 11 month old baby. She started her employment with Westpac in early 2016 in the role of a Relationship Banker. Since early 2018 Witness A had been employed in the Commercial and Business Bank Perth city branch. She had recently taken a period of parental leave following the birth of her baby and had returned to work in January 2021. Witness A worked in the same location and group as Ms Smith and the women were known to one another. It is unclear how much alcohol Witness A consumed on the night of the sundowner however, she was described as being ‘tipsy’. 19
[38] Ms Smith commenced employment with Westpac in 2014. She worked in the same role and location as Witness A but supported a different team. Ms Smith had consumed at least 6 standard alcoholic drinks from the start of the Sundowner until 10pm when she left The Camfield. 20
[39] The group remaining after 7pm also included: Mr Ryan Hoare (Mr Hoare), Ms Jessica England (Ms England), Mr Michael Cross (Mr Cross), Mr Neil Wilson (Mr Wilson), Mr Paul Keenan (Mr Keenan) and Mr James Parker (Mr Parker).
[40] Mr Keron had not previously met or worked with everyone in the group which remained after 7pm and none of the remaining Westpac employees reported to him. Mr Keron had never previously met or had any contact with Ms Smith. Mr Keron had had one previous interaction with Witness A about a year earlier by telephone but had never met her in person. 21
[41] During the early part of the evening Witness A and Mr Keron had a brief discussion during which Witness A explained that she had recently returned to work from maternity leave and was excited to be back in the workplace. 22
[42] Ms Smith says that earlier in the evening she had been in a group which included Mr Keron and he said something that made her feel uncomfortable, so she avoided him for the remainder of the evening. 23
[43] At around 9:45pm one of two incidents, which subsequently led to Mr Keron’s employment with Westpac being terminated, occurred.
[44] A review of the First Footage of the Incident One reveals that:
a. Approximately ten people standing in groups in an otherwise empty bar.
b. Mr Keron standing in a group of four people talking to three other men.
c. Witness A, followed by a man, walks around the perimeter of the gathered groups and approaches the group in which Mr Keron is standing.
d. Witness A inserts her arms between the two men speaking to Mr Keron to separate them and approach Mr Keron. Her arms appear to touch both men in order to physically move them out of her way.
e. Mr Keron speaks to Witness A then turns his back to her.
f. Witness A appears to ‘pat him down’ repeatedly placing her hand on the side of his back moving in a downwards direction towards his lower left ribs.
g. Mr Keron then moves away from Witness A with his back towards her and begins talking to another man.
h. Witness A initially turns to the man who accompanied her to the group but then pursues Mr Keron. Witness A appears to touch Mr Keron on the back again to gain his attention and then engages in conversation with him and the man he is talking to.
i. Witness A appears to put her arm around the second man’s shoulders.
j. Mr Keron and this man continue their conversation and Witness A wanders away from them. She tries to re-join Mr Keron and the man he is talking to however, another man steps between them and blocks her access.
k. Witness A then walks to an area in the middle of the gathered groups alongside Mr Keron and, facing a waist high bar table, begins waving her hands in the air seemingly to attract the attention of the entire group.
l. Mr Keron while standing alongside her and facing the same direction as her, reaches towards the middle part of her lower buttocks with his hand then moves his hand in an upwards direction towards her waist over a period of a few seconds.
m. Ms Smith initially has her back to Mr Keron and Witness A but turns to face them as Mr Keron’s hand is near the waist of Witness A.
n. Mr Keron then steps sideways away from Witness A.
o. Witness A then steps sideways towards Mr Keron appearing to lean on him.
p. Witness A and Mr Keron both move slightly apart from each other and engage in conversation together. Mr Keron then moves away to join a group of nearby men talking together.
q. Witness A then moves towards another group and engages in conversation with them.
r. Witness A leaves the group and moves towards the exit of the bar waving her arms gesturing for everyone to leave the bar. Mr Keron moves towards her, following her towards the exit of the bar also gesturing for the group to leave.
s. Witness A returns to the groups at the bar and appears to again encourage them to leave.
t. Witness A starts moving towards the exit of the bar and is joined by Ms Smith. Witness A puts her arm around Ms Smith and they move towards the exit of the bar out of camera range.
u. Mr Keron initially remains in the bar. He grabs a colleague in a bear hug and they play wrestle.
v. The remaining employees start to move towards the exit. Mr Keron is the third last to leave the bar.
[45] The Second Footage is taken from a camera with views of the veranda of The Camfield facing away from The Camfield. The Second Footage captures the group as they leave The Camfield. A review of this footage reveals that:
a. Witness A talking to Ms Smith with whom she left The Camfield.
b. Witness A makes a scooping gesture with her hand and then stepping backwards. She appears to be re-enacting an incident for the benefit of Ms Smith. Witness A then steps forward to continue her conversation with Ms Smith.
c. The remaining Westpac Employees then progressively leaving The Camfield.
d. Witness A leads the group on a pathway to the left of the exit of The Camfield.
e. Mr Keron is the third last to exit. He appears to stumble and puts his hand around the shoulder of a colleague and then walks out of camera sight with the group.
Incident Two
[46] The majority of the remaining employees proceeded to walk from The Camfield to the nearby Crown Casino. It is at the Casino complex that the second incident, which subsequently led to Mr Keron’s employment with Westpac being terminated, occurred.
[47] Initially the group went to the Merrywell Bar adjoining the Casino. The group then moved to a Noodle Bar inside the Casino.
[48] In a subsequent statement that Ms Smith provided to Westpac, she says that Mr Keron and Mr Parker were in the group that went to the Merrywell Bar but were barred from entering the Casino. She says that she and Ms England went back to check if Mr Parker had been able to enter but were unable to locate him or Mr Keron and returned to the Noodle Bar. In another statement provided in the course of the subsequent investigation, she says that Mr Keron was not part of the group that walked to the Merrywell but joined the group at the Merrywell later. 24 Ms Smith made no reference to who was in the Merrywell or the Noodle Bar in her witness statement in these proceedings.
[49] Witness A says that Mr Keron and Mr Parker travelled by car together from The Camfield to the Merrywell and waved to the group on foot when they drove past. 25
[50] Mr Keron denies that he went to the Merrywell Bar. He says that initially he intended to go home after leaving The Camfield but was unable to get the Uber application functioning on his phone to order an Uber. He says that he then walked by himself along Camfield Drive to the food hall adjoining the Casino to have a burger. He then walked towards the Casino where he knew there would be a taxi. 26
[51] None of the other witnesses recall Mr Keron being among the group that went to the Merrywell 27. I accept his evidence that he did not join the group at the Merrywell and that he was not refused entry to the Casino on route to the Noodle Bar.
[52] Mr Keron says that at approximately 10.30pm, as he passed the Casino entry on route to the taxi rank, he saw Mr Parker. He says that Mr Parker was standing in a queue to have his identification checked. Mr Keron says that he decided to enter the Casino with Mr Parker and walked up to stand alongside him. 28
[53] Mr Keron says that at this time a woman he later discovered to be Ms Smith was exiting the Casino. He says that Ms Smith told the security guard words to the effect of ‘do not let these guys in’. Mr Keron says that the security guard subsequently refused he and Mr Parker entry to the Casino. 29
[54] Mr Parker says that as he was leaving the Casino, he met Mr Keron and they decided to enter the Casino together. He says that Ms Smith approached them and told the security guard checking their identification that he shouldn’t let them in because they were drunk. 30
[55] Ms Smith says that she told the Security Guard that Mr Keron or Mr Parker had already been refused entry to the Casino. She says that she did so to prevent Mr Keron re-joining the group who, apart from her and another female colleague, were unaware that anything had occurred between Mr Keron and Witness A. 31
[56] Ms Smith says that after speaking to the Security Guard she walked in what she believed was the direction of the taxi rank. She says that shortly afterwards Mr Parker and Mr Keron appeared walking in the same direction. 32
[57] Ms Smith says that Mr Keron saw her and, from 30 metres away, shouted the words to the effect of: 33
“You fucking idiot. Why did you do that?”
[58] Ms Smith says that Mr Keron initially walked away from her but then turned around and shouted “you are a whore” or “you are a bitch”. She says that he continued to mutter other words but she was unable to hear what he was saying and he moved away from her. 34
[59] Ms Smith says that Mr Parker walked towards her asking “Why would you do that?” while Mr Keron walked away. 35 She says that she ignored Mr Parker who kept repeating the same question. Ms Smith says that a couple who had observed their exchange intervened and directed Mr Parker to leave her alone. Ms Smith eventually located the taxi rank and caught a taxi home.36 On her way home she sent an email to Ms England reporting that an interaction had occurred between her, Mr Keron and Mr Parker.37
[60] Mr Parker’s recollection of the events was that Mr Keron responded to Ms Smith’s comment to the security guard immediately. According to Mr Parker: 38
“It was a bit dramatic from what I remember. Very unprofessional and rude, a lot of swear words were used. I can’t recall exactly, but like Fuck, Bitch. I don’t remember specifics.”
[61] Mr Parker did not recall Ms Smith making any other comments such as “Leave me alone”. He says that he tried to reason with her, but she left and went through the revolving doors on the East side of the Casino. Mr Parker says that he then went to McDonalds before catching a taxi home. Mr Parker did not recall Mr Keron following Ms Smith. 39
[62] Mr Keron says that Mr Parker seemed quite distressed by Ms Smith’s comment to the Security Guard and that he and Mr Parker parted ways. Mr Parker walked away from the entrance to the Casino shaking his head. 40 Mr Keron says that he was not overly concerned as he had not originally intended on entering the Casino. He says that he then walked through the lobby and followed the concourse outside the Casino complex towards the taxi rank on the eastern side of the building. 41
[63] Mr Keron says that it was then that he saw Ms Smith walking ahead of him, in the same direction. Mr Keron admits that as he walked past Ms Smith on the concourse outside the Casino complex, opposite the Merrywell, he said some swear words to her expressing his disappointment that she had made comments to the security guard, which resulted in he and Mr Parker being refused entry to the Casino. 42
[64] Mr Keron does not recall seeing anyone else standing nearby when Ms Smith and he
exchanged words. 43
[65] Mr Keron says that at the time he didn’t recognise Ms Smith and didn’t know she was a Westpac employee. 44
[66] Mr Keron says that as he continued on his way to the taxi rank, Ms Smith yelled out to him in a loud and aggressive tone words to the effect that “You senior managers think you can get away with anything”. 45
[67] Mr Keron then got into a taxi and went home. On arriving home, he paid the taxi fare at 10:52pm. 46
[68] The next morning, Thursday 11 March 2021, Witness A texted her line manager asking if she could speak to him about something that had happened at The Camfield the night before. He invited her to call him. She called him and reported her recollections of Incident One. He provided her with a link to access an internal incident reporting tool. She recorded her recollections in this tool (Incident Report). 47
[69] In the Incident Report lodged by Witness A on 11 March 2021 Witness A described Incident One as follows: 48
“Paul mentioned Pulp Fiction and we were talking about what a classic movie that is and john started dancing. We joked about john and i turned around (away from the group) to get my bag which was placed on a nearby bar table when i felt a hand grab my private region.
I turned to see a hand and looked up to see it was john however I could not remember if he had his eyes open but he was laughing and smiling.
I walked away and shortly after, monica who witnessed the incident came to me and pulled me away from the group to say that she witnessed what happened and that is not okay”
[70] The First Footage reveals that Witness A was not talking to anyone immediately before Mr Keron appeared to place his hand near her buttocks and that her bag was slung across her shoulder, both before and after the incident. The footage reveals that immediately after the incident she stepped closer to Mr Keron and appeared to lean on him. It appears on the footage that they then spoke and that it was Mr Keron rather than Witness A who then walked away.
[71] Witness A took personal leave the following day, Friday 12 March 2021. 49
[72] On Sunday 14 March 2021 Witness A decided to report Incident One to the police. The police prepared a statement based on the information she provided to them (Police Statement).
[73] In the Police Statement Witness A described Incident One as follows: 50
“We were all standing in a circle talking and having a good time. KERON started dancing beside the group and everyone was laughing.
At one point he was next to me.
He, was pointing his buttocks towards me.
It seemed like he wanted me to touch or grab his buttocks.
I laughed, and turned away from him to get something off a nearby table.
I felt a hand grab and squeeze my crotch.
It felt like the fingers were pushing into my genitals and the thumb was squeezing one of my buttocks.
This lasted for about 2 - 3 seconds.
I froze for a moment and turned around. I saw KERON laughing and smiling.
He was about half a metre away from me. I froze again, then backed away from him. He did not say anything to me. I felt like he was joking around.
I wondered whether it really just happened. I think I was in shock.
I looked at the rest of the group, but everyone was still laughing and talking.
A few seconds later, SMITH came over and dragged me away from the group and the table.
I asked "Did you see what happened?"
She said that she had seen it.”
[74] A review of First Footage reveals that earlier in the footage Mr Keron and Witness A were in a group talking and that Mr Keron turned his back on the group and bent forward. It does not appear from the footage that he is pointing his buttocks at her in particular. In fact, having turned away from Witness A and the remainder of the group, he immediately commences a conversation with another group. Witness A initially remains in conversation with the first group but then appears to pursue Mr Keron to continue to engage in conversation with him.
[75] It is sometime later in the footage when it appears that he touches her buttocks. Having identified Mr Keron as the person who touched her, Witness A appears to move towards Mr Keron and lean against him rather than back away from him.
[76] Initially Ms Smith had her back to Mr Keron and Witness A. It appears from the First Footage One that she turned only as Mr Keron’s hand was on the waist of Witness A. Ms Smith’s evidence in these proceedings was that she did not see the incident. Ms Smith remained in the group she was standing with. Meanwhile Witness A moved to join another group. Witness A then appeared to encourage all the groups to leave. It was only as Witness A began to walk to the exit that Ms Smith joined her. Shortly afterwards the remainder of the Westpac employees moved to the exit.
[77] Witness A says that the Police recommended that she journal her recollections of the incident which she did (Journal Entry). 51
[78] In the Journal Entry Witness A described Incident One as follows: 52
“Group 1 - we were in a circle of sort and we were having a chat with a good banter going around. Paul mentioned pulp fiction and we were talking about what a classic movie that is and john started dancing. the group laughed and i turned around clockwise (away from the group) to get something which was placed on a nearby bar table ( the bar table was very high and i did not have to bend down) when i felt a hand grab my private region. It was as similar to a cupping motion to squeeze my buttocks and fingers towards my vagina.
I turned to see that it was john keron and he was laughing and smiling.
I walked away from John (frozen) and shortly after, Monica who witnessed the incident came to me and pulled me away from the group to say that she witnessed what happened and that it is not okay.”
[79] In the Journal Entry, Witness A alleges that Mr Parker and Mr Keron followed the group who left The Camfield to move to the Casino in a vehicle but were refused entry because they were intoxicated. In the Journal Entry, Witness A says that while at the Merrywell she told Mr Keenan and Mr Hoare that Mr Keron had indecently assaulted her. Witness A also revealed that she discussed the incident with Ms England and Ms Smith several times before submitting the Journal Entry. 53
[80] A review of the First Footage does not show Mr Keron dancing immediately before the incident. In the Incident Report, Witness A says that she reached for her bag on the table. In the Police Statement and the Journal Entry she says she turned to get an unidentified object off the table. In the footage she does not appear to be reaching for an object rather, she turns towards the table and the group standing on the other side of it and raises her arms seemingly to attract the attention of the group. Witness A does not walk away from Mr Keron rather she steps towards him, appears to lean against him and engages in conversation with him. It is not until he turns away to join another group that Witness A moves away.
[81] Witness A’s Incident Report was allocated to Mr Rehayem to investigate in his role as a Case Manager.
[82] On Monday 15 March 2021, Mr Rehayem contacted Witness A and asked her to provide a more detailed statement. Witness A sent him the Journal Entry that she had prepared on the advice of the Police
[83] Between 15 March 2021 and 30 March 2021 Mr Rehayem conducted telephone interviews with other Westpac employees present at the time of the incident.
[84] Mr Rehayem interviewed Ms Smith on 15 March 2021. Mr Rehayem’s notes of the interview record Ms Smith’s description of Incident One as follows:
“• I don’t remember exact what happened or what John said to me, but I remember being uncomfortable around him
• I moved away from him we were standing around bar tables
• I can’t remember what he said to me
• When I moved away, [REDACTED] then moved next to him
• At the corner of my eye, I saw [REDACTED] turn around to walk away and I saw him turn after her
• By then I could see her back and his back
• And I saw his arm move towards her in a swinging action
• I didn’t see contact made with his hand
• With his action it looked like he went to grab her bum
• I heard her yelp ‘argh’ and turn around and her eyes popped out of her head and she forcefully jumped up
• I couldn’t see his hand
• I assumed it was on her bum
• I grabbed her shoulder and moved her near me
• And she said did you see that did you see that
• I said yes it did happen
• Then she talked about I can’t believe he did that”
[85] In her witness statement prepared for these proceedings Ms Smith described Incident One as follows: 54
“At the time when the incident involving [REDACTED] occurred, I was chatting to colleagues close to where [REDACTED] was standing. While chatting, I noticed movement in my peripheral vision. [REDACTED] had her back to Mr Keron. Mr Keron turned towards her and reached his arm towards the region of her bum. I did not see any contact as that was obscured from my vision.
I saw [REDACTED] sort of jump and heard her make a sound (like a yelp), at the same time turning around and facing Mr Keron. [REDACTED] looked very surprised by what happened and her eyes were wide open. She said out loud to everyone "Oh my god, did that just happen?
…
Immediately after the incident between Mr Keron and [REDACTED], I moved [REDACTED] away from Mr Keron. She said to me "Did that just happen? Oh my god, did that just happen?" and "Did you see that?". I told [REDACTED] that I had seen the incident."
[86] A review of the First Footage reveals that Ms Smith was not standing with Mr Keron before the Incident One occurred. She was standing in a separate group with her back to Mr Keron and Witness A. Ms Smith turned to face Mr Keron and Witness A as Mr Keron’s arm reached the lower back of Witness A. Witness A had her back to Ms Smith, therefore Ms Smith could not have seen the face or eyes of Witness A. Witness A does not appear to ‘jump’ when Mr Keron’s hand is near her buttocks. Ms Smith did not mention that Witness A said to the gathered group "Oh my god, did that just happen?" in the evidence she gave to Mr Rehayem in the course of the investigation. Nor did any witness report it occurring. In the First Footage Ms Smith did not grab the shoulder of Witness A and move her near her immediately after the incident occurred. She in fact turned back to the conversation she had been engaged in. Ms Smith remained engaged in this conversation until Witness A began encouraging the group to leave The Camfield. It was only as Witness A moved towards the exit of The Camfield that Ms Smith moved towards her and exited The Camfield.
[87] During the course of the interview on Monday 15 March 2021, Ms Smith reported Incident Two. According to Mr Rehayem she described the incident as follows: 55
“• We all decided to walk to the casino
• We got to the Meriwell (a bar to get food)
• Some got drinks
• [REDACTED] did not tell anyone at this stage
• We realised we could not get food
• At the same time John walked into his colleague (they got a taxi)
• [REDACTED] didn’t want to be around him
• We then all left into the Casino to get food
• John got stopped by security and the young guy James with him also got stopped. That fixed our problem
• We all went into the noodle bar
• Myself and Jess (who had then been made aware of the inicdneT) decided to see if John got in. I said ok great Jess you can take care of [REDACTED] and I went home
• I left a different exit and I saw john and james trying get in that way trying to talk to security
• I told the seciurity guard just to let you know theyuve been refused entry at the other door
• I was standing at the taxi rank
• They followed me to the taxi rank. John walked towards me and I don’t remember the words exactly but it was the tune of why did you do that you’re a fucking idiot
• Screamed at me
• Walked towards the taxi rank
• James when then Why did you do that Mon . I said leave me alone
• He said I thougth we were friends talk to me talk to me
• I said please leave me alone
• John shakend me
• I walked towards another couple who were well dressed they told James to leave me alone and they walked off
• Once I was I was less in shock I walked down to the taxi rank”
[88] Mr Rehayem interviewed Mr Hoare on Monday 15 March 2021. Mr Rehayem’s notes of the interview record that Mr Hoare stated that a group of seven to eight of the larger group from The Camfield moved to the Casino. According to the notes Mr Hoare said that Witness A told the group that Mr Keron “grabbed her in her crotch”. Mr Hoare told Mr Rehayem that he was “shocked because it seemed out of character for …” Mr Keron. 56
[89] Mr Rehayem interviewed Ms England on Tuesday 16 March 2021. Mr Rehayem’s notes of the interview record that Ms England stated that she had not witnessed either incident however, Witness A had told her later that evening at the Noodle Bar that Mr Keron had “grabbed her arse”. 57
[90] Mr Rehayem interviewed Mr Cross on Tuesday 16 March 2021. Mr Rehayem’s notes of the interview record that Mr Cross stated that he had not witnessed any inappropriate behaviour on the night. 58
[91] Mr Rehayem interviewed Mr Wilson on Tuesday 16 March 2021. Mr Rehayem’s notes of the interview record that Mr Cross stated that he had not witnessed any inappropriate behaviour on the night. 59
[92] Mr Rehayem interviewed Mr Keenan on Tuesday 16 March 2021. Mr Rehayem’s notes of the interview record that Mr Keenan stated that he had not witnessed incident one however, Witness A had told him later that evening at the Noodle Bar that Mr Keron had “grabbed her around the groin”. 60
[93] Mr Rehayem interviewed Mr Parker on Tuesday 16 March 2021. Mr Rehayem’s notes of the interview record that Mr Keenan stated that he had not witnessed Incident One however, Ms Smith had told him on the way to the Casino that Mr Keron had “grabbed or slapped the buttocks” of Witness A. In relation to Incident 2 he said that he accompanied the group that went to the Merrywell after The Camfield. He left the group to spend time in the Casino alone. As he was leaving the Casino Mr Parker says that he met Mr Keron and they decided to enter the Casino together. He says that Ms Smith approached them and told the security guard checking their identification that he shouldn’t let them in because they were drunk. Mr Parker says that Mr Keron responded as follows:
“It was a bit dramatic from what I remember. Very unprofessional and rude, a lot of swear words were used. I can’t recall exactly, but like Fuck, Bitch. I don’t remember specifics.”
[94] Mr Parker did not recall Ms Smith making any other comments such as, “leave me alone?”. He says that he tried to reason with her but she left and went through the revolving doors on the East side. Mr Parker told Mr Rehayem that he went to McDonalds then caught a taxi home. He also told Mr Reyhayem that he did not recall Mr Keron following Ms Smith. 61
[95] On Friday 19 March 2021 Ms Smith provided written details of her allegations against Mr Keron (Complaint Letter).
[96] She described Incident Two as follows:
“I left the Casino via the main entrance to go to the taxi rank. At that entrance was John Keron and James Park speaking with another Door Security Guard who looked like he was also refusing them entry. As I walked past, I said to the Door Security Guard words to the effect of ‘You do know that they have been refused entry already’ or ‘Do you know that they have already been refused entry’. I was frightened that John would enter, find the group of Westpac employees and re-join the Group. At this point, Jessica, [REDACTED] and I were the only ones aware of the earlier incident so the other males would have happily welcomed John back to where [REDACTED] was (and she was still quite shaken).
I walked outside of the Casino at (what I thought was the taxi rank) and there were no taxis. I attempted to download the Didi app so that I could order a ride share. Soon after, James and John came out of the same doors, walking towards me as they must have been walking to the taxi rank (which I became aware later had been moved down past the Merrywell bar and not where I was waiting). John saw me and shouted at me words to the effect of ‘You f**king idiot. Why did you do that?!’ I cannot remember the exact words but it was some form of abuse and he was shouting very loudly at me from a distance of say 30m from me. I looked away from him and he kept walking across the road to the otherside when he turned back to shout and call me another name. From memory, it was ‘you are a wh*re’ or ‘b*tch’ and may have used other profanities as he did before. He kept talking and I did not see him again.
James Parker had walked towards me and starting asking ‘why did you do that?’ I believed that he meant by saying that to the Door Security Guard so they could not gain entry. I ignored him. When he kept trying to talk to me – asking why did you do that, I thought we were friends, ‘Monica, speak to me!’ – I kept ignoring him and moved towards a couple standing nearby who were well dressed (there was a prominent business Gala night on that night and they were dressed as if they had been to that).
I had started to cry by now as I was so upset from John coming out, seeing me (I felt very scared as to what he might) and harassed by what he was saying to me. I did not want to talk to James Parker as I associated him with John Keron (as they were just together minutes before) and James had annoyed me earlier in the night by being drunk, obnoxious and stole / drank my drink at the Merrywell. So the couple who had witnessed this told James to go home as I was upset and didn’t want to speak with him. James left.”
[97] Based on his interviews with those present Mr Rehayem prepared a letter of allegations to present to Mr Keron. 62
[98] Mr Watson, in his capacity of State General Manager - Business Banking WA was tasked with meeting with Mr Keron to put the allegations to him. 63
[99] On Monday 22 March 2021 Mr Watson called Mr Keron and informed him that he was required to attend a meeting the following day in relation to an incident related to the Sundowner. Mr Watson encouraged Mr Keron to bring Ms Gazzard with him as a support person. 64
[100] On Tuesday 23 March 2021 Mr Keron accompanied by his support person, Ms Gazzard, attended a meeting with Mr Rehayem and Mr Watson (Allegation Meeting). Mr Rehayem participated in the meeting by video link. 65
[101] At the meeting Mr Keron was handed a letter setting out the allegations against him (Allegations Letter) and given the opportunity to read through the Allegations Letter. 66
[102] The Allegation letter set out two allegations: 67
“Allegation 1
It is alleged that on 10 March 2021 around 9:15pm at The Camfield pub, you inappropriately touched [REDACTED] (Assistant Relationship Manager), by cupping her on the buttocks and then moved your hand towards her vagina for approximately 2-3 seconds.
It is alleged that on 10 March 2021 around 10:30pm, you yelled [to Ms Smith] words to the effect:
a) ‘You fucking idiot, why did you do that?’
b) ‘You’re a whore’; and
c) ‘You’re a bitch’.”
[103] Mr Keron was advised that: 68
a. He did not have to respond to the allegations at that meeting but could if he wanted to.
b. The interview was not being recorded however he, Mr Rehayem, would be taking notes of what was said for future reference.
c. A formal response via email was required to be made to Mr Rehayem by close of business the next day, Wednesday, 24 March 2021.
d. If he did not respond, then a decision would be made by Westpac on the information it had available.
e. As part of its investigation, Westpac had conducted interviews with the complainants and other staff members.
f. There was no timeline as to the investigation process – no decision would be made until all the information was to hand.
g. He was not to speak with anybody within Westpac about the investigation other than his support person.
h. Westpac had made arrangements for a clinician from their Employee Assistance Provider services to be available at conclusion of the meeting.
i. Westpac had arranged for an Employee Care Consultant, Ms Toni Burbridge (Ms Burbridge), to be available to provide support if required. Mr Keron was advised that Ms Burbridge worked in the same HR area as Mr Rehayem but her role was to provide support and not get involved in the investigation.
j. Mr Keron was not expected to return to work that day. His manager had been informed that he was assisting with a workplace investigation and would require some time out of the office to complete it.
[104] Mr Keron says that he felt shattered by the allegations, particularly because he had no memory of Allegation One occurring, and he was shocked that he would be accused of such behaviour. 69 He told Mr Watson and Mr Rehayem that he had no recollection of Allegation One occurring but had some memories in relation to Allegation Two.
[105] At the conclusion of the meeting, Mr Watson offered to provide a taxi or Uber to take Mr Keron home. 70
[106] Ms Burbridge telephoned Mr Keron later that day to check on his wellbeing. 71
[107] Mr Keron provided an initial written response the same day seeking additional time until 25 March 2021 to submit a more detailed response (Initial Response). 72 He was granted the additional time and provided a more detailed response on 25 March 2021 (Detailed Response).73
[108] In the Initial Response Mr Keron denied having any physical contact with Witness A. He admitted an exchange occurred with Ms Smith however he disputed the circumstances in which the exchange occurred, and the language used. 74
[109] In the Detailed Response Mr Keron again denied any intentional physical contact with Witness A. He conceded he may have used the words: “You fucking idiot, why did you do that?” in his exchange with Ms Smith but categorically denied using the other words he was alleged to have used. He denied having met or spoken to Ms Smith before the exchange occurred and says he only became aware she was a Westpac employee after the exchange occurred. 75
[110] On Tuesday 30 March 2021 Mr Keron was asked by Mr Rehayem to attend a second meeting the following day. The meeting on 31 March 2021 was attended by Mr Watson, Mr Rehayem, Mr Keron and Ms Gazzard (Investigation Meeting). At that meeting Mr Keron was told that CCTV footage existed of Incident One and that Westpac were seeking to view it. 76
[111] On Thursday 1 April 2021 Mr Watson attended at The Camfield and viewed CCTV footage of Incident One. 77 Mr Watson says that the footage he viewed was from a different and closer angle than First Footage filed in these proceedings.78
[112] On Wednesday 7 April Mr Christopher Farmer, Group Manager Case Strategic Priorities & Partnership, Employee Care, (Mr Farmer) subsequently also attended on The Camfield to undertake a second viewing of the CCTV footage. 79
[113] On Thursday 8 April Mr Rehayem completed his investigation and finalised his report (Investigation Report). He did so without personally reviewing the CCTV footage. He submitted his report to his superiors. In his report he recommended that Mr Keron be issued with a ‘show cause letter’. Mr Rehayem’s superiors Ms Watts and Ms Matehaere decided to terminate Mr Keron’s employment without undergoing a show cause process. 80 Mr Rehayem was instructed to prepare a letter of termination for Mr Watson to sign.81
Criminal Proceedings
[114] On Friday 2 April 2021 two police officers attended at Mr Keron’s home. They informed him that he was under arrest for indecent assault and that he needed to attend the station with them. 82
[115] Mr Keron was then escorted to the Police vehicle, locked in the back of the wagon and driven to the police station in Northbridge where he was processed and held in the holding cells whilst an interview room was set up. 83
[116] He consented to providing an interview without a lawyer being present. 84
[117] An interview was subsequently conducted by the Police officers during which: 85
a. They advised him that Witness A had completed a police report alleging that she had been indecently assaulted by him at The Camfield on the night of 10 March 2021.
b. He explained to the Police the same background and details as he had provided to Mr Rehayem.
[118] Ultimately the police decided to charge Mr Keron with unlawful and indecent assault and he was subsequently processed (photographed, fingerprinted, DNA tested) and bailed to appear in the Perth Magistrates Court on 19 April 2021. 86
[119] Upon his release Mr Keron called Mr Watson and Ms Gazzard to inform them of the developments. Mr Watson initially confirmed that he should return to work as normal on the next business day but later informed Mr Keron that a decision had been made to place him on special paid leave for two weeks until the preliminary criminal court hearing on 19 April 2021. 87
Dismissal
[120] On Monday 12 April 2021 Mr Keron was instructed to attend a meeting with Mr Watson the following day at Westpac’s Perth headquarters. 88
[121] On Tuesday 13 April 2021 Mr Keron obtained a copy of the First Footage. Later that day Mr Keron attended the meeting with Mr Watson, Mr Farmer and Ms Gazzard (Outcome Meeting). 89 Mr Keron did not have the opportunity to review the footage until after he attended the meeting.
[122] At that meeting Mr Watson handed Mr Keron a letter terminating his employment (Termination Letter). 90
[123] Mr Watson explained that Westpac had determined that: 91
a. Allegation 1 was substantiated, and Allegation 2 was partially substantiated.
b. As a consequence, Mr Keron had been found to be in breach of Westpac Group Policies:
i. Discrimination, Harassment & Bullying,
ii. Sexual Harassment, and
iii. Code of Conduct;
c. Mr Keron’s employment would be terminated for serious misconduct, effective close of business that day (13 April 2021).
d. Westpac would pay 5 weeks salary in lieu of notice despite not being obliged to for a summary dismissal.
[124] In relation to Allegation One Westpac found that: 92
“On balance, Allegation 1 is substantiated due to:
• Witness evidence.
• CCTV footage which shows:
• You inappropriately touched the [REDACTED] by cupping her on the buttocks at 21:58:35.
• You appear to squeeze [REDACTED] buttock area, and, at the time, your hand is at the lower part of her buttocks. The angle of your hand places your fingers at the bottom of her buttock area and your fingers appear to be between her legs.
• Your hand is clearly in contact with [REDACTED] for 3 seconds, and the entire incident is approximately 7 seconds.
• Your response; initially denying any recollection of the incident but recalling other details of the night, including following the incident, clearly.
We have found it is more likely than not that the incident occurred as alleged by [REDACTED]”
[125] In relation to Allegation Two Westpac found: 93
“On balance, (a) and (c) are substantiated due to:
• Your admission in acknowledging it is plausible that you said (a).
• Witness evidence that the encounter was very dramatic, rude and unprofessional, and overhearing use of the words, "fuck" and "bitch".
(b) is not substantiated due to a lack of evidence.”
[126] At the termination meeting on 13 April 2021, Mr Watson did not invite Mr Keron to comment on the investigation findings or the decision to terminate his employment effective immediately. 94
Post Dismissal
[127] The criminal charges laid against Mr Keron were heard on 16 November 2021. A decision in those proceedings is pending.
[128] Ms Smith also made a complaint about Mr Parker. Following an investigation, Mr Parker was given an opportunity to show cause why his employment should not be terminated and he then chose to tender his resignation which was accepted by Westpac. 95
[129] Witness A resigned from Westpac on 28 August 2021 and now lives and works in South West, Western Australia. She says Incident One has impacted on her relationship with her husband and consequently they are undergoing couples counselling and she is having private counselling. 96
[130] Ms Smith resigned from Westpac on 30 May 2021. 97
[131] Mr Keron has been seeing a psychologist for depression since November 2020 following what he describes as a stress related work incident. 98 He says that the emotional distress of summary dismissal after 35 years of service combined with the pending criminal proceedings has caused further deterioration of his mental health and his general well-being.99 Mr Keron has been certified unfit for work since his dismissal.
[132] Mr Keron has had no paid employment since he was dismissed. However, he has engaged a consulting firm to assist him prepare a resume and he has uploaded his resume to a job website. He believes his employment prospects to be limited given he was dismissed summarily, his skills and experience lie exclusively in the banking and finance industry and the grounds for his dismissal are likely to impact employers view of his suitability for employment in that sector. 100
[133] Mr Keron submits that since any conduct that occurred did so late at night in his own personal time it had no connection with his work at Westpac as a Senior Relationship Manager, and therefore cannot form lawful grounds for dismissing him. He says the financial and emotional consequences of his summary dismissal can only be rectified by his reinstatement.
[134] Mr Keron seeks orders that his service be deemed continuous from the date of his termination on 13 April 2021 with consequential orders for the accrual of contractual and legal entitlements during that period, including re-instatement to the Westpac Defined Benefit Superannuation Scheme. He also seeks orders that he be paid an amount for the remuneration lost because of the dismissal.
[135] Alternatively, Mr Keron seeks an order for payment of compensation in accordance with sections 390(3) and 392 of the FW Act up to the maximum allowable.
[136] An order for reinstatement or compensation may only be issued if Mr Keron was unfairly dismissed and Mr Keron was protected from unfair dismissal at the time of his dismissal.
[137] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
a. the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
b. one or more of the following apply:
i. a modern award covers the person;
ii. an enterprise agreement applies to the person in relation to the employment;
iii. the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[138] For the purposes of Part 3-2 of the FW Act an employer means a national system employer and an employee means an employee of a national system employer. Westpac is a national system employer 101 and Mr Keron is therefore a national system employee.
[139] If the employer is not a small business, the ‘minimum employment period’ is six months ending at the earlier of the following times:102
a. the time when the person is given notice of the dismissal; or
b. immediately before the dismissal.
[140] There is no dispute, and I am satisfied, that Westpac is not a small business employer for the purposes of section 383 of the FW Act.
[141] Mr Keron commenced employment with Westpac on 9 December 1985. 103 Mr Keron was dismissed on 13 April 2021.104
[142] I am therefore satisfied that, at the time of dismissal, Mr Keron was an employee who had completed a period of employment of at least the minimum employment period.
[143] There is no dispute, and I am satisfied, that the Agreement applied to his employment at the time of his dismissal.105 Consequently, I am satisfied that Mr Keron was protected from unfair dismissal.
[144] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:
a. the person has been dismissed;
b. the dismissal was harsh, unjust or unreasonable;
c. the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and
d. the dismissal was not a case of genuine redundancy.
[145] Section 386(1) of the FW Act provides that a person has been dismissed if the person’s employment was terminated at the employer’s initiative or the person resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.
[146] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[147] There was no dispute, and I find, that Mr Keron’s employment with Westpac was terminated at the initiative of Westpac.106
[148] I am therefore satisfied that Mr Keron has been dismissed within the meaning of section 385 of the FW Act.
Was Mr Keron’s dismissal a case of genuine redundancy?
[149] Pursuant to section 389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
a. the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
b. the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
[150] It was not in dispute, and I find, that Mr Keron’s dismissal was not due to Westpac no longer requiring his job to be performed by anyone because of changes in Westpac’s operational requirements.
[151] I am therefore satisfied that the dismissal was not a case of genuine redundancy.
[152] Section 388 of the FW Act provides that a person’s dismissal is consistent with the Small Business Fair Dismissal (SBFD)Code if:
a. immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
b. the employer complied with the SBFD Code in relation to the dismissal.
[153] It was not in dispute, and I find, that Westpac was not a small business employer within the meaning of section 23 of the FW Act at the relevant time, having in excess of fourteen (14) employees.
[154] As Westpac is not a small business employer within the meaning of the FW Act, I am satisfied that the SBFD Code does not apply to Mr Keron’s dismissal.
[155] Pursuant to section 396 of the FW Act, the FWC is obliged to decide whether an application was made within the period required in subsection 394(2) of the FW Act before considering the merits of an application.
[156] Section 394(2) of the FW Act requires that the Application is to be made within twenty-one (21) days after the dismissal took effect.
[157] It is not disputed, and I find, that Mr Keron was dismissed from his employment on 13 April 2021 and made the Application on 28 April 2021. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.
[158] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd by McHugh and Gummow JJ as follows:
“…. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”107
[159] Section 387 of the FW Act provides that, 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);
b. whether the person was notified of that reason;
c. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
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;
e. if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
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;
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.
[160] Each of these criteria must be considered to the extent they are relevant to the factual circumstances of the Application.108
[161] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”109 and should not be “capricious, fanciful, spiteful or prejudiced.”110 It is not the role of the FWC to stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.111
[162] The employer carries the onus of establishing a valid reason. 112
[163] The Termination Letter identifies the reason for Mr Keron’s dismissal as the substantiation of Allegation One and the partial substantiation of Allegation Two constituting a breach of the Discrimination, Harassment & Bullying Policy, the Sexual Harassment Policy, and the Code of Conduct. 113
[164] Where a dismissal relates to an employee’s conduct, the FWC must be satisfied that the conduct occurred and justified termination.114 The question of whether the alleged conduct took place and what it involved is to be determined by the FWC 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.115
[165] Misconduct justifying dismissal is conduct that is so serious that it goes to the heart of the contract. 116 Where serious misconduct is alleged and termination is viewed as the only appropriate course of action, then the quality of the evidence needed to establish relevant facts on the balance of probabilities must be stronger in accordance with the principles in Briginshaw v Briginshaw (1938) HCA 34.
[166] In matters involving misconduct there is an onus on the employer to establish that the misconduct took place. 117
Findings of Fact – Incident One
[167] The Termination Letter identifies the following findings of fact in relation to Incident One as a basis for concluding that Mr Keron engaged in serious misconduct warranting his summary dismissal. In relation to Incident One Westpac found that:118
“On balance, Allegation 1 is substantiated due to:
• Witness evidence.
• CCTV footage which shows:
• You inappropriately touched [REDACTED] by cupping her on the buttocks at 21:58:35.
• You appear to squeeze [REDACTED] buttock area, and, at the time, your hand is at the lower part of her buttocks. The angle of your hand places your fingers at the bottom of her buttock area and your fingers appear to be between her legs.
• Your hand is clearly in contact with [REDACTED] for 3 seconds, and the entire incident is approximately 7 seconds.
• Your response; initially denying any recollection of the incident but recalling other details of the night, including following the incident, clearly.
We have found it is more likely than not that the incident occurred as alleged by [REDACTED]”
[168] The First Footage is grainy and taken from a fixed position some distance from the events which occurred. The events complained of occurred over a period of seconds. A review of the First Footage, even slide by slide, only shows that Mr Keron’s hand was in the vicinity of the centre of Witness A’s lower buttocks before moving upwards towards her waist. The Footage does not definitively show contact let alone the angle of his hand, the location of his fingers or the force of any contact.
[169] Mr Keron says he has no recollection of the event.
[170] Ms Smith says in her witness statement that she did not see the alleged contact with Witness A. This is confirmed by a review of the First Footage which reveals that Ms Smith had her back to Incident One when it occurred.
[171] None of those interviewed in the course of the Investigation reported having seen the alleged contact.
[172] The only witness evidence of physical contact is that of Witness A.
[173] In the Incident Report prepared on the day after the incident Witness A described Incident One as follows: 119
“Paul mentioned Pulp Fiction and we were talking about what a classic movie that is and john started dancing. We joked about john and i turned around (away from the group) to get my bag which was placed on a nearby bar table when i felt a hand grab my private region.”
[174] In the Police Statement taken on 2 April 2021 Witness A described Incident One as follows:120
“I felt a hand grab and squeeze my crotch. It felt like the fingers were pushing into my genitals and the thumb was squeezing one of my buttocks. This lasted for about 2 - 3 seconds.”
[175] In the Journal Entry provided to Mr Rehayem on 15 March 2021 Witness A described Incident One as follows:121
“Group 1 - we were in a circle of sort and we were having a chat with a good banter going around. Paul mentioned pulp fiction and we were talking about what a classic movie that is and john started dancing. the group laughed and i turned around clockwise (away from the group) to get something which was placed on a nearby bar table ( the bar table was very high and i did not have to bend down) when i felt a hand grab my private region. It was as similar to a cupping motion to squeeze my buttocks and fingers towards my vagina.’
[176] The Allegation Letter describes the incident as follows: 122
“Allegation 1
It is alleged that on 10 March 2021 around 9:15pm at the Camfield pub, you inappropriately touched [REDACTED] (Assistant Relationship Manager), by cupping her on the buttocks and then moved your hand towards her vagina for approximately 2-3 seconds.”
[177] The Termination Letter describes the incident as follows:123
“CCTV footage which shows:
• You inappropriately touched the [REDACTED] by cupping her on the buttocks at 21:58:35.
• You appear to squeeze [REDACTED] buttock area, and, at the time, your hand is at the lower part of her buttocks. The angle of your hand places your fingers at the bottom of her buttock area and your fingers appear to be between her legs.
• Your hand is clearly in contact with [REDACTED] for 3 seconds, and the entire incident is approximately 7 seconds.”
[178] The sexualisation of the contact appears to increase each time the incident is particularised. The final description of the incident in the Termination Letter does not accurately reflect the descriptions of the event by Witness A or what can be observed in the First Footage. The Termination Letter describes an event of far greater intimacy and duration.
[179] On the evidence available to me it appears that some brief physical contact occurred. In particular:
a. Mr Keron’s hand can be observed on the First Footage in close proximity to the lower central region of the buttocks of Witness A then moving upwards towards her waist.
b. The First Footage shows Witness A stepping towards and ‘leaning’ against Mr Keron in the seconds after the incident suggestive that physical contact had just occurred.
c. The Second Footage shows Witness A contemporaneously makes a scooping gesture to Ms Smith on the veranda of The Camfield in the minutes after Incident One occurs.
d. The evidence of Ms Smith, Ms England, Mr Hoare and Mr Keenan who reported that Witness A reported the incident to them the same night and before she returned home late.
[180] While I am not satisfied that the contact between Mr Keron extended to the intimacy and duration described in the Termination Letter I accept that at a minimum Mr Keron placed his hand in the centre of the lower buttocks of Witness A in an intimate manner then moved his hand upwards towards her waist.
Findings of Fact - Incident Two
[181] The Termination Letter identifies the Investigation finding that on 10 March 2021 around 10:30pm Mr Keron yelled to Ms Smith words to the effect ‘You fucking idiot, why did you do that? and ‘You’re a bitch’ as a basis for concluding that Mr Keron engaged in misconduct:124
[182] Mr Keron admits that as he walked past Ms Smith on the concourse outside the Casino complex, opposite the Merrywell, he said some swear words to her, expressing his disappointment that she had made comments to the security guard which had resulted in he and Mr Parker being refused entry to the Casino. 125 He agreed it was plausible that he said words to the effect of ‘You fucking idiot, why did you do that?.
[183] Given he was unable to recall the earlier incident involving Witness A, presumably due to the amount of alcohol he had consumed, it is likely that his recollection of Incident Two is less reliable than that of Ms Smith or Mr Parker.
[184] In the course of the Investigation Mr Parker confirmed that Mr Keron used profanities in his exchange with Ms Smith.
[185] Based on the evidence before me I believe it to be probable that Mr Keron did say to Ms Smith words to the effect of ‘You fucking idiot, why did you do that? and ‘You’re a bitch’.
Valid Reason
[186] The Employment Contract relevantly provides that Mr Keron “… must continue to observe and comply with Westpac’s procedures and policies, including …” its Code of Conduct and Discrimination, Harassment and Bullying Policy. Although I note that it goes on to state that the relevant procedures and policies “… are not incorporated as terms of your employment contract and do not create any enforceable rights or entitlements in your favour”. 126
[187] Whether or not a policy will be incorporated into a contract of employment depends upon the parties’ intentions as objectively ascertained. 127
[188] In approaching the task of ascertaining the parties’ intention, the starting point is the language of the contract. The language adopted is to be viewed in context, not in abstract isolation.
[189] Based on the language of the Employment Contract viewed in context, while it does not incorporate the terms of Westpac’s policies and procedures into the Employment Contract, it is clear the parties agreed that Mr Keron would be contractually bound to comply with the relevant policies and procedures.
[190] The Termination Letter particularises the alleged breaches by Mr Keron of Westpac policies and procedures as breaches of the following aspects of the specified policies and procedures extracted below:
“Discrimination, Harassment and Bullying Policy
Harassment is behaviour which is unreasonable, uninvited and unwelcome that a reasonable person would consider:
• Offends, humiliates, intimidates or threatens another person, or
• Makes our workplace uncomfortable and hostile for other employees.”
Sexual Harassment Policy
Sexual harassment is any unwanted, unwelcome, or uninvited behaviour of a sexual nature which makes a person feel humiliated, intimidated, or offended.'
Examples of sexual harassment are:
• unwelcome physical contact or touching.
Code of Conduct
Being ethical
• We are trusted to do the right thing;
• We ensure that our actions, personally and professionally, do not put Westpac Group's reputation at risk;
• We always ask 'Should we?' rather than just 'Can we?'.
• We create a safe, diverse and inclusive place to work where we welcome diversity of thought and experience, prioritise our people and our customers' safety and wellbeing and do not tolerate discrimination, bullying or harassment, including sexual harassment.
• We work together as a team, support each other and are professional in our interactions.”
[191] Mr Keron agrees that he has undergone training in relation to Westpac’s expectations regarding employee behaviour generally and in particular sexual harassment. 128 However he submits that his conduct was not conduct prohibited by the relevant policies and the Code of Conduct and/or the conduct occurred outside of the workplace and working hours and that therefore he did not breach the relevant polices or the Code of Conduct.
Nature of behaviour
[192] The Code of Conduct is a broad guide to behaviour that Westpac expects of its employees in fulfilling their daily roles with the Bank. The Code of Conduct contains largely aspirational statements rather than clearly enforceable standards of behaviour.
[193] The Discrimination, Harassment and Bullying Policy requires the behaviour to be unreasonable, uninvited and unwelcome. The relevant behaviour must be such that a reasonable person would consider that the behaviour offends, humiliates, intimidates or threatens or makes the workplace uncomfortable and hostile for other employees.
[194] The Sexual Harassment Policy requires the conduct to be unwanted, unwelcome, or uninvited behaviour. The relevant behaviour must make the recipient feel humiliated, intimidated, or offended.
[195] Mr Keron submits that his behaviour was not unreasonable, uninvited, unwanted or unwelcome.
[196] A review of the First Footage appears to reveal Witness A endeavouring on multiple occasions to move physically closer to, and engage in conversation with, Mr Keron. On several occasions Witness A appears to physically touch Mr Keron. At 21:58:05 Witness A approaches Mr Keron and appears to pat Mr Keron down his left shoulder, her hand moving down his back to his lower left ribs. At 21:58:11 Witness A again appears to use her left hand to pat his back, following which she remains in his close proximity. Most relevantly in the seconds following Incident One Witness A steps towards Mr Keron and appears to lean on him.
[197] Notwithstanding that she had informed her husband that she intended to go home shortly Witness A remained at the Casino for several hours after the Incident. She moved from The Camfield, to the Merrywell and then to the Noodle Bar inside the Casino. She did not arrive home until around 11pm. 129 If she was concerned about leaving the Casino precinct unaccompanied and encountering Mr Keron then she could have departed with Ms Smith. Remaining at the Casino appears to be somewhat inconsistent with her assertion that she was deeply distressed by the incident.
[198] However, the bar as to what constitutes consent for physical and sexual interactions has been significantly raised in the broader community. An even higher bar has been set for interactions occurring in work related environments. The media coverage and social discourse in relation to these issues has been extensive, placing those in Australian workplaces on notice that their behaviour will attract greater scrutiny and face higher standards than in the past. While Witness A’s conduct of itself may well have constituted a breach of the Westpac policies it does not of itself provide a defence for Mr Keron’s behaviour.
[199] Mr Keron was aware that Witness A was a junior work colleague and a married mother. In these circumstances he should have exercised extreme caution in engaging in any physical contact particularly of a sexualised nature. Even more so when the conduct was occurring at a time when both parties were known to each other to be intoxicated and their judgement potentially impaired. The fact that Witness A has patted Mr Keron on the shoulder or back does not constitute an invitation for him to touch her in a sexualised manner or intimate location. Mr Keron himself acknowledged in cross examination that uninvited touching of a woman on her buttocks had the very real potential to cause significant distress to the woman. 130 It is clear by her actions in subsequently reporting the incident to her colleagues, her employer and the police that the conduct was unwanted and unwelcome and made Witness A feel humiliated and offended.
[200] I do not accept Mr Keron’s assertion that Witness A re-characterised the contact as unwelcome and uninvited when she arrived home late and her husband was upset with her. The evidence is that she informed Ms Smith of the event in the minutes after it occurred and expressed her discomfort about the incident to Ms England, Mr Keenan and Mr Hoare before she left the Casino the same night and before she returned home late.
[201] It is clear that Mr Keron’s interaction with Ms Smith was unwelcome. On his own evidence he had been on his way home when he joined Mr Parker in the queue to enter the Casino and he was ‘not overly concerned’ he could not enter the Casino because he did not originally intend to enter. 131 In these circumstances directing profanities at an unaccompanied young woman late at night outside a venue of the nature of the casino is unreasonable. Any reasonable person would consider it offending, humiliating and threatening. While Ms Smith’s behaviour might have annoyed Mr Keron it did not ‘invite’ the response it elicited. The role of the Security Guard was to assess suitability for entry into the casino. If Mr Keron believed that the security guard had not appropriately performed his role then Mr Keron’s remedy was to raise that with Casino management not with Ms Smith.
Connection with Employment
[202] Notwithstanding that the incidents occurred after the scheduled end of the Sundowner and outside of the workplace Westpac submit that there was a manifestly clear and unequivocal connection between Mr Keron’s conduct and his employment. Westpac rely on the decisions in Brown v Aristocrat Technologies Australia Pty Ltd 132,Rose v Telstra133, Streeter v Telstra134, Farquharson v Qantas135, Graincorp Operations Limited v Markam136 in support of this assertion.
[203] Mr Keron submits that the conduct for which he was dismissed did not occur in the course of his employment and therefore cannot form a valid reason for his dismissal because there is no evidence that his conduct will impact on his capacity to perform his duties. He points out that he had no working relationship with either Ms Smith or Witness A and that neither are now employed by Westpac.
[204] Relevantly the Discrimination, Harassment and Bullying Policy: 137
“… applies wherever you are at work or when you are representing Westpac group in any way, such as at work-related functions, including seminars, conferences and social events.”
[205] Relevantly the Sexual Harassment Policy provides that: 138
“sexual harassment can occur at any time, in any situation where you interact with work colleagues, contractors, customers, clients and visitors. This includes working from other locations such as working from home, 'out-of-work' settings that are connected to work such as work-related conferences, work-related functions, work Christmas parties, business trips/meetings and field trips.”
[206] In relation to the scope of the Code of Conduct it provides that: 139
“Get to know the Code and commit to following it in your daily role.”
[207] In relation to the scope of the relevant policies and procedures the Code of Conduct has the narrowest scope. The relevant conduct must occur in the performance of the employee’s ‘daily role’. Presumably attending a pub is not part of the daily role of a senior Westpac banker. The Discrimination, Harassment and Bullying Policy provides that it applies when an employee is at work or representing the Westpac Group. The Sexual Harassment Policy has the widest scope extending to ‘out of work settings’ however all of the examples provided in the Sexual Harassment Policy identify some work related connectivity.
[208] This is consistent with the position at common law where it is only in exceptional circumstances that an employer has the right to extend its supervision to the private activities of its employees. 140 For example conduct outside of working hours even involving criminal offences does not, of itself, automatically justify dismissal.141
[209] In Brown v Aristocrat Technologies Australia Pty Ltd 142 the employee had eleven years' service and an unblemished employment record. Following the conclusion of a company sponsored Christmas party, the employee urinated over a balcony located near to the room in which the event was held and onto diners below. In that case, Commissioner Cargill had little hesitation in finding that there was a sufficient connection to the employee's employment:143
“In my view there is a sufficient temporal and physical proximity to the work function such as to provide a necessary connection with the employment relationship.”
[210] It is relevant to note that Incident One occurred at the physical location at which the Sundowner occurred. Incident Two occurred approximately 1km away.
[211] However, it is not necessary that the relevant behaviour occur at the same physical location as the workplace or work function in order for there to be a sufficient connection with the employment for the behaviour to justify dismissal.
[212] In Markham v GrainCorp Operations Limited 144 a Full Bench of the AIRC held that the dismissal of an employee for sexually harassing a colleague outside working hours while staying in adjoining rooms in a hotel in which they had been accommodated while attending a training course was not unfair.
[213] The Full Bench considered the employees to have been “… put in a situation of proximity …” by virtue of their attendance at the training conference, rather than by a truly private choice, and that the conduct was therefore sufficiently connected to the employment relationship.
[214] In this regard it is relevant to note that while the Sundowner had formally ended at 6pm Mr Keron and Witness A had no separate social connection and were only in The Camfield socialising because they had attended the Workshop and the Sundowner in the course of their employment. When the Westpac employees departed from The Camfield they made private choices about their destinations and their companions. Mr Keron initially choosing to go home and Witness A moving to the Merrywell with Ms Smith.
[215] In Newton v Toll Transport Pty Ltd 145, the Full Bench endorsed the statement of principle set out in the decision of Rose v Telstra Corporation (1998) Print Q 9292 as to the circumstances in which out of hours conduct might validly form a valid reason for dismissal:146
“It is clear that, in certain circumstances, an employee’s employment may be validly terminated because out of hours conduct. But such circumstances are limited:
• The conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
• The conduct damages the employer’s interests; or
• The conduct is incompatible with the employee’s duty as an employee.
In essence, the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.”
[216] It is not sufficient for the employer to simply assert that the conduct will in some way affect the employer’s reputation or compromise the employee’s capacity to perform their duties, there needs to be evidentiary material upon which a firm finding may be made. 147 Mr Keron submits that there is no evidence upon which such a finding may be made.
[217] To the extent that there is such evidence Mr Keron submits that reliance by Westpac on the risk to its reputational damage needs to be addressed in light of its well-publicised shortcomings reported in the media in respect of the findings and recommendations from the Haynes Royal Commission into the Banking industry in respect of its failures in governance, child exploitation, money laundering and the like.
[218] In Farquharson v Qantas Airways Limited 148, a Full Bench of the Australian Industrial Relations Commission held that the dismissal of a flight steward for assaulting a colleague in a function room in a Singapore Hotel at 2:30am in the morning between flights while not on duty was not unfair.
[219] The Full Bench held that there was a relevant connection between the steward's behaviour and his employment because the steward's conduct amounted to a ‘breach of the employer's interests’ to the extent that it could have exposed the employer to negative publicity, damage to its local reputation, liability for medical and legal expenses, and a shortage of staff in the absence of the injured employee.
[220] The Full Bench explained that: 149
“Conduct that gives rise to a material risk of damage to an employer's interest, even if there is no actual damage in the particular case, may nevertheless be conduct that attracts the legitimate concern of the employer and may thus, depending on the circumstances, constitute conduct that provides a "valid reason" for termination of employment.”
[221] In this context the Full Bench explained that: 150
“The appellant placed particular emphasis on the absence of any media reports of the incident, the fact that no charges were laid and the failure by Qantas to call any evidence from a representative of the hotel indicating that the incident had damaged Qantas’ reputation with the hotel together with admission by a Qantas manager, Ms Waters, that the incident had not harmed Qantas reputation. In our view, the adverse impact on Qantas of incidents such as that which occurred in the present case is obvious. In this case such adverse impact may be inferred from the facts established by the evidence. Mr Tracey was hospitalised as a consequence of the assault and was unable to return to work for a number of weeks. It may be inferred that he was therefore unavailable to work as a flight crew member in accordance with his roster for that period and that alternative arrangements had to be made by Qantas.
While it may be that the hotel regards the matter as closed, it seems obvious to us that if such incidents recurred the reputation of Qantas would be diminished with the hotel and could expose Qantas to liability for medical and legal expenses. As such, Qantas has a legitimate interest in ensuring that no such incidents occur and therefore has a legitimate interest in taking action in relation to any such incident. Moreover, the fact that the hotel regards the matter as closed does not mean that the hotel did not take an adverse view of the incident. On the evidence before her Honour, it is more likely than not that that it did: other patrons were disturbed from their sleep and damage was caused to the door of the appellant’s room. A recurrence of such incidents at the hotel may cause it to take a different view in the future.
The fact that no charges were pursued by the Singapore police does not inevitably lead to the inference that the police regarded the matter as trivial. Other explanations are equally plausible. For example, the decision not to Charge may have been as a result of representations made to the police by other Qantas staff or by the hotel management in the interests of an important customer. Moreover, it is not fanciful to suppose that an assault leading to significant physical injuries may be the subject of police charges.
In summary, Qantas was entitled to consider potential future damage, and not merely actual damage, to its reputation or interests. Qantas has a legitimate interest in taking action aimed at deterring such behaviour by other employees in the future because such behaviour has the potential to adversely affect Qantas’ reputation and its rostering arrangements and exposes Qantas to expense arising out of its obligation to meet the legal and medical expenses of its employees when they are in a foreign port.”
[222] The Workshop ended at 4pm. 151 The Sundowner was held at a different location to the Workshop. The Sundowner was not held in normal business hours and was not compulsory. Westpac employees attending the Workshop and Sundowner wore smart casual wear and not uniforms. 152 There was no Westpac signage at the Sundowner to identify the event as being associated with Westpac. 153
[223] The Sundowner was scheduled to conclude by 6:30pm. 154 The bar tab was closed by 7pm.155 The number of Westpac employees at the Sundowner gradually diminished as the event wore on and by 7pm only a small number remained.156 By 9.45pm when Incident One occurred only 11 of the 160 employees who had attended the Workshop remained. These employees had been drinking and/or socialising for more than 5 hours since the conclusion of the Workshop and 3 hours since the conclusion of the company organised networking event.
[224] Relevantly however they remained in the location of the Westpac organised Sundowner. They were only at this location in the company of each other as a consequence of their attendance at the Workshop and the Sundowner in the course of their employment. In particular Mr Keron and Witness A had no separate social connection and were only in The Camfield socialising because they had attended the Workshop and the Sundowner.
[225] The First Footage reveals the remaining employees standing closely together in an otherwise empty bar with no members of the general public in view. The First Footage reveals the Westpac employees fluidly moving between the groups of employees. While Mr Keron asserts that he did not personally know all of the remaining employees he did not suggest that he believed the gathered groups at the time the incident occurred to include anyone who was not a Westpac employee. Notably all the Westpac employees had been issued with a wrist band on arrival at The Camfield.
[226] The evidence is that Mr Keron had previously had an interaction with Witness A in the workplace and had a discussion with Witness A earlier in the evening her return to work at Westpac following parental leave. Clearly Mr Keron knew Witness A to be not only a work colleague but a more junior work colleague with a partner and children. 157
[227] In all the circumstances I am of the view that the period between the formal conclusion of the Sundowner and the departure of the group from The Camfield constituted an extension of the Sundowner and fell within the scope of at least the Sexual Harassment Policy and arguably within the scope of the Discrimination, Harassment and Bullying Policy.
[228] If I am wrong, I am satisfied that the conduct which occurred at The Camfield had sufficient connection with the workplace to form a valid reason for Mr Keron’s dismissal.
[229] Witness A says Incident One has impacted on her relationship with her husband and consequently they are undergoing couples counselling. She is also having private counselling. In addition to the impact on productivity from her absence from work following the incident Westpac has born the cost of directing resources to supporting her mental health and the mental health of Mr Keron through the course of the Investigation.
[230] In the course of the evening and during the course of the Investigation a number of Westpac employees became aware of Incident One. Subsequently the families of Mr Keron and Witness A also became aware of Incident One and most likely the families of the witnesses. 158
[231] Media interest in the Hearing suggests that the events of the evening had entered the public domain before the Hearing. Reporting of the Hearing in an industry publication and in a newspaper with national circulation has extended the potential reputational harm for Westpac. The recent findings of the Banking Royal Commission amplify the impact that such media reporting would have had on an employer engaged in a different industry.
[232] Ms Smith and Witness A were still employed at Westpac at the time of Mr Keron’s dismissal. While they did not work together directly the evidence is that during the course of their employment Mr Keron and Witness A had had some professional contact. Depending on the course of their respective careers it is possible that such interactions would continue to occur and potentially increase. Had they all remained employed by Westpac this would have potentially impacted on Westpac’s ability to allocate work or effect career progression or relocations.
[233] While Ms Smith and Witness A have now left the organisation public knowledge that the incident occurred at the location of a Westpac sponsored social function has the potential to impact on the productivity of other Westpac employees in particular their preparedness to attend such functions and consequently the positive impact on morale and networking such events are intended to achieve. In this regard I note the evidence of Mr Watson that: 159
“Jane asked me for my thoughts about the matter and what I felt Westpac should do. I told Jane that I shared her view that the misconduct was serious and that I could not see how John could continue in Westpac's employment notwithstanding his prior service.”
“Also at the time – and this remains my view – I had real concerns that John's conduct would directly impact his relationship with both male and female Westpac employees who were either present at the event where the incident occurred, or who subsequently became aware of what had occurred. I was also conscious that Westpac as an organisation takes matters concerning sexual harassment very seriously and in the context of the conduct that John had been found to engage in, I could not reconcile John continuing in his employment with the position that Westpac takes against sexual harassment in the context of our values, code of conduct and policy.”
[234] In all of these circumstances I am satisfied that Incident One had a sufficient connection to Mr Keron’s employment to form a valid reason for his dismissal.
[235] Incident Two occurred at about 10.30pm. Six and a half hours after the Workshop concluded and four hours after the conclusion of the company organised networking event. Incident Two occurred outside the Casino Complex more than a kilometre from Optus Stadium where the Workshop occurred and more than a kilometre from The Camfield where the Networking Event was held.
[236] Both Mr Keron and Ms Smith had both travelled to different locations between departing from The Camfield and meeting at the Casino. At the time Incident Two occurred both Mr Keron and Ms Smith had parted ways from their work colleagues and were on route to their respective homes. Mr Keron and Ms Smith were not previously known to one another. Neither were located or wearing anything which might identify them as having any involvement with Westpac. Mr Keron says he was unaware at the time that Ms Smith was an employee of Westpac. In these circumstances I am not satisfied that Mr Keron’s conduct in Incident Two had sufficient connection to his employment to form a valid reason for his dismissal.
[237] Based on the evidence before me and the submissions of the parties for the reasons above I find that a valid reason existed for Mr Keron’s dismissal.
[238] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,160 and in explicit,161 plain and clear terms.162
[239] The allegations were verbally put to Mr Keron on 23 March 2021 at the Allegation Meeting and provided in writing in the Allegations Letter. 163 The reasons for his dismissal were communicated to him on 13 April 2021 at the Outcome Meeting and confirmed in the Termination Letter.164
[240] Mr Keron says that his dismissal was procedurally unfair because Westpac did not inform him that it had formulated, investigated and considered a third allegation against him about his level of intoxication on the night of 10 March 2021. Given that this allegation did not form a reason for dismissal identified in the Termination Letter I am satisfied that no procedural unfairness arises from the failure to notify him of the allegation.
[241] I am therefore satisfied, that Mr Keron was notified of the reasons for his dismissal.
[242] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.165 This entitlement is reinforced in the Agreement. 166
[243] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.167 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.168
[244] Mr Keron submits that he was denied procedural fairness because:
a. Mr Watson did not provide him with sufficient detail about the allegations on 22 March 2021 for him to properly respond at the Allegation Meeting held the following day.
b. Initially, Mr Keron was given only 24 hours to respond to the allegations and after requesting additional time, he was given only a further 24 hours to respond to the allegations.
c. Mr Watson directed Mr Keron not to discuss any matters relating to the allegations with the persons he had socialised with on the night of 10 March 2021, and this deprived him of ascertaining whether there were any witnesses to the alleged offending.
d. The allegations contained in the Allegation Letter do not precisely match the reasons for his dismissal as set out in the Termination Letter.
e. Westpac paid little or no regard to his verbal or written responses and gave no or insufficient weight to the mitigating circumstances that he brought to their attention.
f. Westpac did not give Mr Keron the opportunity to respond to the findings of the investigation or its decision to terminate his employment for serious misconduct before effecting the termination.
[245] Mr Keron was advised that he was not required to respond to the allegations at the Allegation meeting. He was provided with, and took the opportunity to, provide both an initial and a detailed written response to the allegations after the Allegation Meeting. Mr Keron also took part in the Investigation Meeting before the decision to terminate his employment was made.
[246] There is no evidence to suggest that if he had asked for a further extension of time to respond to the allegations that it would have been refused or that he would have provided a different response.
[247] There were no witnesses to the incident so the prohibition on him contacting potential witnesses cannot have impacted on his capacity to respond to the allegations.
[248] It is clear on the evidence before me that throughout the process Mr Keron was aware of what he was alleged to have done and the likely consequences of a finding that he had misconducted himself as alleged. For example, the Allegation Letter makes it plain that Westpac “… considers these matters very seriously and if found to be proven, may lead to disciplinary action being taken against you, including termination of your employment.” 169
[249] While the particulars of allegations contained in the Allegation Letter differed from the reasons for dismissal set out in the Termination Letter the substance is sufficiently common to have provided Mr Keron with the opportunity to respond to what eventually formed the reasons for his dismissal.
[250] There is no evidence that Westpac paid little or no regard to Mr Keron’s verbal or written responses and gave no or insufficient weight to the mitigating circumstances that he brought to their attention. To the contrary it appears that Westpac considered in detail his response and his personal circumstances.
[251] I am satisfied, that Mr Keron was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.
[252] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[253] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 170
[254] Mr Keron had Ms Gizzard present as a support person during the Allegation Meeting, Investigation Meeting and the Outcome Meeting.
[255] There is no dispute 171, and I am satisfied, that Westpac did not unreasonably refuse to allow Mr Keron to have a support person present at discussions relating to his dismissal. This consideration is therefore neutral in this Application.
[256] As the dismissal did not relate to unsatisfactory performance, this consideration is not relevant to this Application. 172
[257] Where an employer is substantial and has dedicated human resources personnel, and access to legal advice, there will likely be no reason for it not to follow fair procedures.173
[258] Westpac is a large business with dedicated human resource management specialists.
[259] I am satisfied that the procedures followed by Westpac were appropriate having regard to the size of its enterprise. 174 This consideration is therefore neutral in this Application.
[260] The absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”175
[261] Westpac’s enterprise did not lack dedicated human resource management specialists and expertise.
[262] This consideration is therefore neutral in this Application.
[263] Section 387(h) of the FW Act requires the FWC to take into account any other matters that the FWC considers relevant to determining whether the dismissal was harsh, unjust or unreasonable.
[264] Mr Keron submits that the FWC ought to have regard to the following matters:
a. The conduct in relation to both allegations occurred in Mr Keron’s (and the complainants’) personal time outside of the workplace, in circumstances where there was no workplace relationship, direct reporting or power imbalance between Mr Keron and the complainants.
b. Westpac permitted Mr Keron to continue in his normal role even after the complaint(s) had been made against him and it had started its investigation.
c. Westpac communicated his suspension to the Mr Keron on Saturday 3 April 2021 – a non-workday and the day before Easter Sunday.
d. The delay in Westpac notifying Mr Keron of the allegations against him until it had already commenced the investigation and Mr Rehayem had already interviewed most of the witnesses.
e. The weight given by Westpac to the fact that the police had charged Mr Keron with indecent assault
f. Westpac decided to suspend Mr Keron only after he advised that the Police had charged him with indecent assault.
g. Westpac initially informed Mr Keron that his employment would be suspended until after the preliminary criminal hearing on 19 April 2021 but that, without any or any adequate explanation, that timeframe was revoked.
h. Westpac gave inadequate consideration to Mr Keron’s mental health and well-being during the investigation process and the termination.
i. Westpac did not to call evidence from its decision-makers (Ms Jane Watts and Ms Amanda Matehaere) as to matters they took into account, including the fact that the conduct was “out of hours” conduct.
j. Westpac gave inadequate consideration as to whether the punishment of termination was commensurate with the incident(s) alleged against him.
k. Mr Keron’s professional performance during his employment at Westpac and prior good standing.
l. The steps Mr Keron has taken to mitigate any damages arising from the dismissal, including seeking employment elsewhere to the extent that he is able to and advertising his availability for employment on Seek.com.
m. The steps Mr Keron has taken to receive psychological assistance to mitigate any damages arising from the dismissal.
n. Westpac’s differential treatment meted out to Mr Parker who was given the opportunity to resign.
[265] Westpac assert that Mr Keron has not displayed contrition or recognition of the seriousness of his conduct and submit that this is a matter that the FWC ought to have regard to in assessing whether the dismissal was harsh, unjust or unreasonable.
[266] I have considered all these matters and attached appropriate weight to them.
[267] I am not satisfied that the manner in which the Investigation was conducted made the dismissal harsh, unjust or unreasonable. The Investigation adopted an orthodox process, and the evidence reveals that Westpac took proactive steps, as best it could, to ensure Mr Keron’s mental health and well-being.
[268] For the reasons set out earlier in this decision I am satisfied that Mr Keron’s conduct in relation to Witness A formed a valid reason for his dismissal. No inequity arises in the treatment of Mr Parker and Mr Keron because the nature of their conduct was very different.
[269] Not withstanding his summary dismissal Westpac paid Mr Keron five weeks pay in lieu of notice.
[270] I note the comments of the Full Bench in Parmalat Food Products Pty Ltd v Wililo 176 at [24]:
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness if open.”
[271] In this matter there are several significant mitigating factors. There is no evidence that Mr Keron had ever behaved inappropriately in the workplace during his 35 years of continuous employment with Westpac. Given his wife’s support throughout these proceedings presumably he does not have a ‘record’ of such conduct outside the workplace.
[272] Mr Keron’s conduct in relation to Witness A appears to have been a direct consequence of his alcohol consumption on the evening of 10 March 2021. In its wisdom Westpac decided that the only appropriate venue to provide a networking opportunity for its while collar professional employees was a sports themed pub, notwithstanding the existence of function rooms at Optus Stadium. A sports themed pub would appear to be an odd choice for an organisation purporting to be seeking to create a work environment which welcomes women and employees of diverse ethnic and religious backgrounds.
[273] At that pub Westpac provided its employees with apparently unrestricted access to alcohol for more than two hours. Senior management did not remain at the function to ensure that its employees safely departed the venue nor was provision made to ensure intoxicated employees could get home safely.
[274] Westpac purport to be committed to principles such as:
“Supporting our people
• We create a safe, diverse and inclusive place to work where we welcome diversity of thought and experience, prioritise our people and our customers' safety and wellbeing and do not tolerate discrimination, bullying or harassment, including sexual harassment.
• We work together as a team, support each other and are professional in our interactions.”
[275] If Westpac are seriously committed to these principles Westpac should give consideration to whether the location they chose for networking events is one which all employees feel comfortable attending. They should also give consideration to whether the service of alcohol is necessary or even an appropriate element of work related events given the poor judgement often associated with the consumption of alcohol. If alcohol is a necessary element of the event Westpac should ensure that its employees are safe during the course of the event, that there is a clear conclusion to the event and that the safe departure of employees is facilitated.
[276] Mr Keron’s conduct must be considered in context. A review of the First Footage appears to reveal Witness A endeavouring on multiple occasions to move physically closer to, and engage in conversation with, Mr Keron. On several occasions Witness A appears to physically touch Mr Keron. On one occasion Witness A approaches Mr Keron and appears to pat Mr Keron down his left shoulder, her hand moving down his back to his lower left ribs. On a second occasion Witness A again appears to use her left hand to pat his back, following which she remains in his close proximity. Most relevantly in the seconds following Incident One Witness A steps towards Mr Keron and appears to lean on him. It would appear with his judgement clouded by alcohol Mr Keron thought his actions would not be unwelcomed.
[277] Furthermore, the conduct occurred some distance in location and time from the workplace. The Workshop ended at 4pm. 177 The Sundowner was held at a different location to the Workshop. The Sundowner was not held in normal business hours and was not compulsory.
[278] Westpac employees attending the Workshop and Sundowner wore smart casual wear and not uniforms. 178 There was no Westpac signage at the Sundowner to identify the event as being associated with Westpac. 179 By 9.45pm when Incident One occurred only 11 of the 160 employees who had attended the Workshop remained. These employees had been drinking and/or socialising for more than 5 hours since the conclusion of the Workshop and 3 hours since the conclusion of the company organised networking event. Mr Keron’s conduct therefore occurred on the border between a work related event and private activities. A boundary blurred for Mr Keron by his alcohol consumption at least in part provided by his employer.
[279] The most significant mitigating factor is however Mr Keron’s personal circumstances. Mr Keron commenced employment with Westpac on 9 December 1985 as a single 17 year old youth. At the time of the dismissal he was a 53 years old married man with two children. He has no formal qualifications, no experience of work in any other industry and suffers from depression. His dismissal in his circumstances is catastrophic.
[280] However, the bar as to what constitutes consent for physical and sexual interactions has been significantly raised in the community since Mr Keron commenced his employment. An even higher bar has been set for interactions occurring in work related environments. The media coverage and social discourse in relation to these issues has been extensive and unavoidable. This has placed those employed in Australian workplaces, including Mr Keron, on notice that their ‘social’ behaviour will attract greater scrutiny and face higher standards than in the past.
[281] As a senior employee of the bank Mr Keron must have been aware that his employer is currently the subject of intense scrutiny in relation to its ethics and values and that a higher standard is expected by the community.
[282] While Witness A’s conduct of itself may well have constituted a breach of the Westpac policies it does not of itself provide a defence for Mr Keron’s behaviour. Mr Keron was aware that Witness A was a junior work colleague and a married mother. In these circumstances he should have exercised extreme caution in engaging in any physical contact particularly of a sexualised nature. Even more so when the conduct was occurring at a time when both parties were known to each other to be intoxicated and their judgement potentially impaired.
[283] It is no longer the case that alcohol consumption can be an excuse for one employee to touch another intimately or that by attending and participating in social activities related to the workplace employees are inviting or welcoming being touched inappropriately.
[284] I have made findings in relation to each matter specified in section 387 of the FW Act as relevant.
[285] I have considered and given due weight to each factor as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.
[286] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Mr Keron was not harsh, unjust or unreasonable.
[287] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Keron was unfairly dismissed within the meaning of section 385 of the FW Act. The Application is therefore dismissed.
[288] An Order 180 to this effect will be issued with this Decision.
DEPUTY PRESIDENT
Appearances:
Ms M Saraceni, for the Applicant.
Mr R Wade, for the Respondent.
Hearing details:
2021.
Perth:
29 September, 30 September, 1 October
Final written submissions:
Applicant, 25 October 2021.
Respondent, 8 November 2021.
Printed by authority of the Commonwealth Government Printer
<PR737995>
1 Warrell v Walton (2013) 233 IR 335, 341 [22].
4 Digital Court Book, 26 (‘DCB’).
5 DCB 27-28.
6 Ibid 28, 68-86, 87-236.
7 DCB 292.
8 Ibid.
9 Ibid.
10 Ibid 29.
11 Ibid 31-32.
12 Ibid.
13 Ibid.
14 Ibid.
15 Ibid.
16 Ibid 33-34.
17 Ibid 34-37, Exhibit A2 at paragraph numbered 2; Transcript PN2032; PN3021.
18 Ibid 423, 419, 485, PN3046 to PN3051.
19 Ibid 286-287, 289, PN2531, 412, 416, 431, 485.
20 Transcript PN1116.
21 DCB 34-37.
22 Ibid.
23 Ibid 307.
24 Ibid 411-414.
25 Ibid 408.
26 Ibid 39-40.
27 Mr Parker says that he was unsure but confirms that he was permitted to enter the Casino and was in the Casino alone.
28 DCB 40-41.
29 Ibid 41.
30 Ibid 432-435.
31 I note that this is inconsistent with her evidence that Witness A told the group at The Camfield “Oh my god, did that just happen?”. It is also inconsistent with the evidence of the other witnesses at the Merrywell that Witness A had told them that incident had occurred after they left The Camfield.
32 DCB 308.
33 Transcript PN 1191.
34 Transcript PN253.
35 DCB 309.
36 Ibid 436.
37 Ibid 439.
38 Ibid 432-435.
39 Ibid 432-435.
40 Ibid 41.
41 Ibid 41.
42 Ibid 41.
43 Ibid 42.
44 Ibid.
45 Ibid.
46 Ibid.
47 Ibid 392-394, 288.
48 Ibid 395-397.
49 Ibid 392-394, 288.
50 Ibid 398-403.
51 Ibid 288.
52 Ibid 407-410.
53 Ibid 407-410.
54 Ibid 307-308.
55 Ibid 411-414.
56 Ibid 415-417.
57 Ibid 418-421.
58 Ibid 422-424.
59 Ibid 425-428.
60 Ibid 429-431.
61 Ibid 432-435.
62 Ibid 294.
63 Ibid 302.
64 Ibid 43, 302.
65 Ibid 44, 294.
66 Ibid 44, 252-256, 302, 440.
67 Ibid 44-45.
68 Ibid 45-46, 302.
69 Ibid 46.
70 Ibid 46, 302.
71 Ibid 46.
72 Ibid 257, 295, 447.
73 Ibid 258-261, 448-451.
74 Ibid 257, 447.
75 Ibid 258-261, 448-451.
76 Ibid 49-50, 302-303, 453-455.
77 Ibid 303.
78 Ibid 303-304.
79 Ibid 296, 484-485
80 Ibid 298, 461-473, Transcript PN2533, PN2476, PN2703, PN3037.
81 DCB 304.
82 Ibid 51.
83 Ibid.
84 Ibid.
85 Ibid 51-52.
86 Ibid 52.
87 Ibid 52.
88 Ibid 56.
89 Ibid 474-476.
90 Ibid 57, 273, 477-483.
91 Ibid 57-58.
92 Ibid 273-279.
93 Ibid 273-279.
94 Ibid 187, Transcript PN776-778.
95 Transcript PN1066- PN1068, PN1078 - PN1079; PN1857 - PN1860, PN2553 - PN2586, PN2626-PN2627.
96 DCB 289.
97 Ibid 65, 306.
98 Ibid 66.
99 Ibid 65, 285.
100 Ibid 65-67.
101 Ibid 1.
102 Fair Work Act 2009 (Cth) s 383.
103 DCB 27
104 Ibid 273-279
105 Ibid 499, Westpac Group Enterprise Agreement 2019.
106 Ibid 273-279.
107 (1995) 185 CLR 410, 465 (McHugh and Gummow JJ).
108 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, 4 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB), (Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
109 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
110 Ibid.
111 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
112 Culpeper v Intercontinental Ship Management Pty Ltd (2004) 134 IR 243.
113 DCB 273-279.
114 Edwards v Justice Giudice (1999) 94 FCR 561, 565 [7] (Moore J).
115 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23] - [24].
116 North v Television Corporation Ltd (1976) 11 ALR 599.
117 YEW v ACI Glass Packaging Pty Ltd (1996) 71 IR 201.
118 DCB 273-279.
119 Ibid 395-397.
120 Ibid 398-403.
121 Ibid 407-410.
122 Ibid 44-45.
123 Ibid 273-279.
124 Ibid 273-279.
125 Ibid 41.
126 Ibid 71-86.
127 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 (at [40]-[41]).
128 DCB 292.
129 Transcript PN1392.
130 Transcript PN335 – PN336.
131 DCB 40-41.
133 [1998] AIRC 1592.
134 Carlie Streeter v Telstra Corporation Limited [2007] AIRC 679.
135 Farquharson v Qantas Airways Limited (2006) 155 IR 22.
136 (2002) 120 IR 253.
137 DCB 343.
138 Ibid 337-342.
139 Ibid 327-36.
140 Appellant v Respondent (1999) 89 IR 407 at 416.
141 HEF of Australia v Western Hospital (1991) 33 AILR 249; and Rose v Telstra Corporation (1998) Print Q 9292.
143 Brown v Aristocrat Technologies Australia Pty Ltd [2005] AIRC 656 at [107].
144 (2002) AIRC 642.
145 (2021) FWCFB 3457.
146 (2021) FWCFB 3457 at 149 -150.
147 Wakim v Bluestar Global Logistics [2016] FWC 6992 (Hatcher VP, 7 October 2016) at [32].
148 (2006) 155 IR 22.
149 (2006) 155 IR 22 at [22].
150 155 IR 22 at [27]-[31].
151 DCB 31-32.
152 Ibid 31-32.
153 Ibid.
154 Ibid.
155 Ibid.
156 Ibid.
157 Ibid 34-37.
158 Ibid 289.
159 Ibid 304.
160 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [73] .
161 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
162 Ibid.
163 DCB 252-256.
164 Ibid 273-279.
165 Crozier (n 160), 151 [75].
166 DCB 199
167 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 – 15 [26] quoting Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).
168 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).
169 DCB 255
170 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
171 Applicant’s Closing Submissions filed on 25 October 2021 at [223].
172 Ibid [223].
173 Jetstar v Meetson-Lemkes (2013) 239 IR 1, 21 – 22 [68].
174 Applicant’s Closing Submissions filed on 25 October 2021 at [223].
175 Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].
177 DCB 31-32.
178 Ibid.
179 Ibid.