| [2022] FWC 1739 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Paul Kallipolitis
v
Australian Postal Corporation
(U2021/9609)
SYDNEY, 5 JULY 2022 |
Application for an unfair dismissal remedy – Applicant failed to follow lawful and reasonable directions – misconduct – valid reason for dismissal – dismissal not harsh, unjust or unreasonable in the circumstances – application dismissed.
[1] On 26 October 2021, Mr Paul Kallipolitis (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Australian Postal Corporation (Respondent). The Applicant seeks reinstatement and compensation.
[2] Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the applicant has been unfairly dismissed.
[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
[4] 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.
[5] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[6] The uncontested factual background to the matter is as follows:
• The Applicant began working for the Respondent on 20 July 1989 and was employed by the Respondent for over 32 years until he was dismissed by the Respondent on 20 October 2021.
• At the time of his dismissal, the Applicant was employed on a full-time basis as a Postal Transport Officer. The Applicant was also a nominated Health and Safety Representative at the Respondent’s Eastern Creek facility and had been performing this role since 27 February 2020.
• At the time of his dismissal, the Applicant was earning approximately $52,884.00 per annum or $1,013.75 per week.
• JB Hi-Fi was a customer of the Respondent and the Applicant picked up parcels from its Penrith store (JB Hi-Fi Store) via a shared loading zone as part of his usual role as a Postal Transport Officer. To pick up parcels from the JB Hi-Fi Store at the loading dock, the Applicant would ring a bell to a smaller roller door or sometimes the door would be open. The Applicant would speak to JB Hi-Fi staff to facilitate the collection of the parcels from the JB Hi-Fi Store and the JB Hi-Fi staff would put the parcels on a trolley and wheel it out so that the Applicant could take the trolley to his van. 1
• On 23 August 2021, the Applicant was provided with a letter from the Respondent suspending him from duty with pay pending an investigation into the Applicant’s alleged behaviour.
• On 26 August 2021, the Applicant was advised in writing by the Respondent that a “Disciplinary Inquiry” was to be conducted in relation to allegations that the Applicant:
• attended the JB Hi-Fi Store on 18 August 2021, failed to sign in using the necessary QR code as required due to COVID-19 restrictions, failed to wear a face mask as required due to COVID-19 restrictions and engaged in an inappropriate discussion with JB Hi-Fi employees regarding COVID-19 conspiracy theories;
• after being notified by the Respondent’s Facility Manager of a customer complaint from the JB Hi-Fi Store and despite being given a clear direction not to approach JB Hi-Fi about the complaint, attended the JB Hi-Fi Store on 20 August 2021, engaged in an inappropriate discussion with JB Hi-Fi employees regarding COVID-19 conspiracy theories and demanded that JB Hi-Fi employees tell him who complained about him. In doing so, the Applicant failed to comply with a reasonable and lawful direction;
• on 23 August 2021, drove a van without authorisation from the Respondent’s facility when given numerous clear and lawful directions not to do so and attended the JB Hi-Fi store and had further communications with staff regarding COVID-19; and
• acted contrary to his responsibilities as an employee and to the Respondent’s ‘Our Ethics’ policy.
• On 20 October 2021, the Applicant was advised in writing by the Respondent that he would be dismissed on the grounds of “serious and wilful misconduct” and that his dismissal would be effective from the close of his shift on 20 October 2021.
[7] In his ‘Form F2 - Unfair dismissal application’ (Application), the Applicant submitted that the dismissal was unfair because:
• there was no valid reason related to conduct or capacity;
• the Applicant has a valid medical exemption from wearing a mask;
• there was no requirement to use the QR code as the Applicant never entered the JB Hi-Fi store;
• the practice had been not to use the QR code and the Applicant had been told by JB Hi-Fi employees that he was not required to use it;
• the Applicant did not discuss “conspiracy theories” with JB Hi-Fi employees, however does not believe there was any limit on the matters that could be discussed;
• the Applicant wanted to know who, if anyone, at JB Hi-Fi made a complaint about him for not wearing a mask so he could show them his exemption;
• the direction to work on the loading docks was not a reasonable direction given the Applicant was always employed as a van driver;
• the Applicant was given permission by his immediate supervisor to do his usual run and drive the van;
• the Applicant was not provided with warnings;
• if the allegations were proven, dismissal in all the circumstances would be a disproportionate response;
• the dismissal is harsh given the very long and exemplary work history of the Applicant with the Respondent;
• the alleged complaint arose shortly after the Applicant instituted a performance improvement notice (PIN) over a safety issue;
• the Applicant believes the relevant communication from JB Hi-Fi was a generic communication to all service suppliers and was not a complaint about the Applicant; and
• the relevant manager made a spurious complaint to the police about the Applicant not wearing a mask when he would have been aware that the Applicant had a mask exemption.
[8] In its ‘Form F3 – Employer response to unfair dismissal application’, the Respondent submitted that:
• the Applicant was dismissed due to proven serious misconduct of the nature set out in the letter of allegations dated 26 August 2021, summarised above;
• in dismissing the Applicant, it has not been unfair; and
• the relationship has broken down to a point that cannot be resolved through reinstatement.
The hearing
[9] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
[10] After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act).
Permission to appear
[11] The Applicant sought to be represented before the Commission by a paid agent. The Respondent sought to be represented before the Commission by a lawyer.
[12] Relevantly, s.596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.
[13] Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:
(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
[14] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the FW Act. 2 The decision to grant permission is a two-step process. First it must be determined if one of the requirements in s.596(2) of the FW Act have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.3
[15] On the question of representation, the Applicant submitted that: 4
• in relation to s.596(2)(a) of the FW Act, the matter is complex, taking into account the volume of materials, witnesses and video evidence;
• in relation to s.596(2)(b) of the FW Act, the Applicant is not in a position to properly represent himself in the proceedings as he would find it overwhelming; and
• in relation to s.596(2)(c) of the FW Act, if neither the Applicant or Respondent were permitted representation, this would lead to an unfair and unbalanced position between the Respondent and Applicant as the Respondent has professional staff who could represent it more adequately.
[16] On the question of representation, the Respondent submitted that: 5
• in relation to s.596(2)(a) of the FW Act, it agreed with the position of the Applicant that the case is complex, having regard to the volume of evidence and witnesses, and is factually complex, such that forensic cross-examination of witnesses would be required. In these circumstances, the Respondent submitted that granting permission would enable the matter to be dealt with more efficiently; and
• if representation were to be granted to the Applicant, discretion under s.596(2)(c) of the FW Act would be enlivened because, even though the Respondent does employ professional employee relations staff, they are not professional advocates.
[17] Having considered those matters and the material before the Commission, I determined that allowing the Applicant to be represented by a paid agent and the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
[18] I therefore decided to exercise my discretion to grant permission for both the Applicant and Respondent to be represented.
[19] Accordingly, at the hearing that took place on 3, 4 and 10 February 2022, the Applicant was represented by Mr Dircks, initial G, and the Respondent was represented by Mr Spargo, initial W.
Witnesses
[20] The Applicant gave evidence on his own behalf and the following witnesses also gave evidence on his behalf:
• Shawn Taylor, employee of the Respondent; and
• Ian Walton, employee of the Respondent and Health and Safety Representative.
[21] The following witnesses gave evidence on behalf of the Respondent:
• Helen Goodyear, employee and Territory Manager of the Respondent;
• Allen Britten, employee and Manager of the Respondent;
• Jayme Hale, employee of the Respondent;
• Linda Patterson, employee of the Respondent;
• Christopher Smedley, Store Manager of the JB Hi-Fi Store;
• Benjamin Bucksath, employee and Facility Manager of the Respondent;
• Tim Reichel, employee and HR Business Partner of the Respondent; and
• Kina Malaitai, employee of the Respondent.
Submissions
[22] The Applicant filed submissions in the Commission on 23 December 2021. The Respondent filed submissions in the Commission on 20 January 2022.
[23] A threshold issue to determine is whether the Applicant has been dismissed from his employment.
[24] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[25] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[26] There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
[27] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.386 of the FW Act.
[28] Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Was the Application made within the period required?
[29] Section 394(2) of the FW Act requires an application to be made within 21 days after the dismissal took effect.
[30] It is not disputed and I find that the Applicant was dismissed from his employment on 20 October 2021 and made the Application on 26 October 2021. I am therefore satisfied that the Application was made within the period required in s.394(2) of the FW Act.
Was the Applicant protected from unfair dismissal at the time of dismissal?
[31] I have set out above when a person is protected from unfair dismissal.
Minimum employment period
[32] It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.
[33] It was not in dispute and I find that the Applicant was an employee, who commenced their employment with the Respondent on 20 July 1989 and was dismissed on 20 October 2021, a period in excess of 6 months.
[34] It was not in dispute and I find that the Applicant was an employee.
[35] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
Applicant’s annual rate of earnings
[36] It was not in dispute and I find that, at the time of dismissal, the sum of the Applicant’s annual rate of earnings (being $52,884.00), together with such other amounts worked out in accordance with regulation 3.05 of the Fair Work Regulations 2009, was less than the high income threshold, which, for a dismissal taking effect on or after 1 July 2021, is $158,500.00.
[37] I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[38] Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal 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 Small Business Fair Dismissal Code in relation to the dismissal.
[39] As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis).
[40] I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.
Was the dismissal a case of genuine redundancy?
[41] Under s.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.
[42] It was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.
[43] I am therefore satisfied that the dismissal was not a case of genuine redundancy.
[44] Having considered each of the initial matters, I am required to consider the merits of the Application.
[45] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(c) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(d) whether the person was notified of that reason; and
(e) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(f) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(g) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(h) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(i) 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
(j) any other matters that the FWC considers relevant.
[46] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 6
[47] I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[48] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 7 and should not be “capricious, fanciful, spiteful or prejudiced”.8 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.9
[49] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.10 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 11
Applicant’s Submissions
[50] The Applicant submitted that there was no valid reason for the dismissal related to the Applicant’s capacity or conduct. 12 In particular, the Applicant submitted that “all of the alleged instances of misconduct are misconceived in fundamental ways”13 and that it is incumbent on the party that seeks to show a valid reason for the termination to establish its validity.14
[51] The Applicant’s submissions seek to cast doubt as to whether the alleged conduct occurred.
[52] In particular, the Applicant submitted that in relation to the allegations of misconduct said to have taken place on 18 August 2021:
• the apparent source of these allegations was a text message from one JB Hi-Fi member of staff to another JB Hi-Fi member of staff; 15
• the text message purports to identify the Australia Post van driver by the number plate of a van however the Applicant’s evidence is that he does not recognise the number on the number plate as there was no consistent van provided to him; 16
• the reference in the text message is to discussion about the driver on “Monday” however the alleged conduct is said by the Respondent to have occurred on Wednesday 18 August 2021 (not on a Monday) and was raised with the Applicant on Friday 20 August 2021; 17
• the Applicant’s evidence is that nobody asked him to sign in or wear a mask and he did not therefore refuse to do either of these things; 18 and
• no detail is provided of what, if any discussions took place regarding COVID-19 conspiracies and the Applicant’s evidence is that he has no recollection of bringing up COVID-19 conspiracies in any discussion with JB Hi-Fi employees but that it was common to discuss what was going on in the world. 19 The Applicant further submitted that even if the Respondent was able to produce some credible evidence of the existence and nature of discussions of COVID-19 conspiracy theories:20
• it is hard to see how that could be some form of misconduct;
• there is no suggestion that the Applicant was proselytising a particular point of view which may have been objectionable; and
• mere discussion would seem to be unexceptional, regardless of a person’s viewpoint.
[53] The Applicant relied on the decision of the Full Bench in Linfox Australia Pty Ltd v Stutsel 21 which said:
“[24] The conduct that led to the termination of the Applicant’s employment consisted of the posting of his Facebook page of offensive, derogatory and discriminatory comments and statements about two of his managers. As set out earlier, the Commissioner examined the evidence as to the various postings on the Facebook page and made findings in relation to them. The Commissioner referred to some of the comments made by the Applicant as being “distasteful”, “uncomplimentary” and “disgusting” and noted that the Applicant had later come to regret making the comments. The comments of a sexual nature on the Facebook page were “outrageous”, however the Commissioner noted that these comments were not made by the Applicant but by one of his Facebook “friends” in the course of a conversation.
[25] The posting of a derogatory, offensive and discriminatory statements or comments about managers or other employees on Facebook might provide a valid reason for termination of employment. In each case, the enquiry will be as to the nature of the comments and statements made and the width of their publication. Comments made directly to managers and other employees and given wide circulation in the workplace will be treated more seriously than if such comments are shared privately by a few workmates in a social setting. In ordinary discourse there is much discussion about what happens in our work lives and the people involved. In this regard we are mindful of the need not to impose unrealistic standards of behaviour and discourse about such matters or to ignore the realities of workplaces.”
[54] The Applicant submitted that the last two sentences of paragraph 25 in Linfox Australia Pty Ltd v Stutsel would seem to suggest that mere discussion about commonly aired conspiracy theories ought not be regarded as misconduct that could justify dismissal, if that occurred. 22
[55] Further, the Applicant submits that there was a coherent reason as to why wearing a face mask and using a QR code was not required, 23 in particular:
• the Applicant pointed to the description of the shopping centre in which the JB Hi-Fi Store was located in his witness statement. 24 In this regard, and by way of summary, the Applicant’s evidence was that:25
• there were a number of stores that he would pick up from when on the particular run and he would drive into the loading dock and park his van in a space;
• in relation to JB Hi-Fi pick ups, he would go to the roller door and ring the buzzer, the roller door would then open, the JB Hi-Fi staff would put the parcels on the trolley and he would take the trolley and go to load it into the van; and
• nobody from JB Hi-Fi ever asked him to wear a mask and he was never asked to sign in;
• the Applicant’s evidence was that that he never entered the premises of JB Hi-Fi. The Applicant submitted that he was on the outside of the roller door loading dock and there was no need to use a QR code or sign in; 26 and
• if there was an obligation to wear a mask out in the open, the Applicant would have been exempted from this requirement as he had a medical certificate. 27 The Applicant filed a copy of a medical certificate from Dr Morian completed on 7 August 2021 (Medical Certificate) which states that the Applicant “develops anxiety and mentally unwell while wearing face mask outdoor”.
[56] In relation to the allegations of misconduct said to have taken place on 20 August 2021, the Applicant submitted: 28
• any criticisms of the Applicant’s actions must take into account the flaws in allegations said to have occurred on 18 August 2021;
• there is no evidence that the Applicant entered the premises of JB Hi-Fi and the Medical Certificate appears to cover the situation if there was a requirement to wear the facemask outside the store;
• the Applicant denies inappropriate discussion regarding COVID-19 conspiracy theories;
• the Applicant asked to speak to the manager and did not request to know the name of the person who complained about him;
• the Applicant felt that the alleged customer complaint followed hot on the heels of him issuing a PIN in his role as Health and Safety Representative earlier that morning;
• in relation to the allegation that he failed to follow a reasonable and lawful direction, the direction was put no higher to him than the manager didn’t want him to go to the JB Hi-Fi Store that afternoon and was put in a very casual manner as he was walking to a meeting room to participate in a disciplinary matter relating to another employee; and
• as the Applicant was still required to go to the same shopping centre area and saw that the roller door was up, he reasonably asked the JB Hi-Fi staff member whether anyone from the Respondent has come to do the pick-up, the answer was no and the Applicant felt it was best to do the pick up lest it result in some other complaint.
[57] In relation to the allegations of misconduct said to have taken place on 23 August 2021, the Applicant:
• denies there were numerous clear and lawful directions not to drive the van; 29
• gave evidence that he was directed by the Facility Manager, Mr Benjamin Bucksath, not to go out in the van but to work in the warehouse and the loading docks, that he asked for the direction to be put in writing and the Facility Manager declined to do so. 30 The Applicant submitted “this would seem to suggest a lack of seriousness in the direction” and that, in any case, the Applicant was authorised by his direct supervisor to do his usual run which involved driving the van;31 and
• submits that the suspension of 23 August 2021 says nothing about whether the Applicant could or could not attend the JB Hi-Fi Store or do anything else while on suspension except to be available for further meetings. However, if it was implied, the part of the allegation that the Applicant “had further communications with staff regarding COVID” is incorrect and without foundation. 32
[58] The Applicant further submitted: 33
• the Respondent is required to clearly identify what the conduct is rather than simply characterising the conduct (e.g. engaged in inappropriate discussion regarding COVID conspiracy theories);
• the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the Applicant actually occurred;
• the test is not whether the Respondent believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct and to this extent the Respondent’s internal enquiry is irrelevant unless the reasons relied upon by the Respondent to dismiss were not put to the Applicant (which they clearly were in a general sense);
• the Commission must make a finding about whether the conduct occurred based on the evidence before it;
• it is incumbent on the party that seeks to show a valid reason for the dismissal to establish its validity and no valid reason existed for the dismissal related to the Applicant’s capacity or conduct;
• the apparent reasons for the dismissal are not valid in that they are not sound, well-founded and defensible; and
• the reasons are capricious, fanciful, spiteful and prejudiced.
Respondent’s Submissions
[59] The Respondent submitted there was a valid reason for the dismissal. In particular, and by way of summary, the Respondent submitted: 34
• the Applicant was dismissed for repeatedly refusing to comply with lawful and reasonable directions and engaging in misconduct which was contrary to the Respondent’s ‘Our Ethics’ policy, as set out in the termination letter;
• while it relies on the totality of the Applicant’s conduct as constituting a valid reason for dismissal, it is the Applicant’s response to the initial complaint by JB H-Fi which is particularly serious, including that the Applicant:
• returned to the JB Hi-Fi Store on two occasions after being directed not to do so and, on the second occasion, after being made aware that JB Hi-Fi were unhappy that he had returned following the initial complaint;
• took a van out of the Eastern Creek facility on 23 August 2021 when he was expressly and repeatedly directed not to do so and, in the process, twice caused Mr Bucksath and Ms Malaitai to move out of the way for fear of being run over;
• the Applicant’s refusal to follow directions was blatant, repeated, had a negative impact on the Respondent’s customer relationship with JB Hi-Fi and had a negative effect on safety and welfare at the JB Hi-Fi Store, as well as on Mr Bucksath and Ms Malaitai; and
• the loading dock at JB Hi-Fi is indoors, albeit the roller door entrance is open during business hours, and the Medical Certificate is only relevant to wearing a mask outdoors.
Evidence
[60] Mr Bucksath is the Respondent’s Facility Manager and started at the Eastern Creek facility, where the Applicant is based, on 2 August 2021. 35 Mr Bucksath’s evidence was that he first became aware of a customer complaint from the JB Hi-Fi Store on 19 August 2021 upon receipt of an email from the Strategic Enterprise Support team.36 Attached to Mr Bucksath’s witness statement was a copy of an email chain that included the complaint email. The complaint email, dated 18 August 2021, attaches a communication between Mr Christopher Smedley and Ms Colleen Bishop and reads:
“Hi Colleen,
Attached is the license plate of the driver we discussed on Monday. He’s caused our storeroom issues with refusing to sign in, refusing to wear a mask, and he’s bringing up covid conspiracies.
Would you mind escalating for us? We’d prefer him not attend our store moving forward.
Thanks - Chris.”
[61] Appearing at the bottom of this communication is a photograph of an Australia Post branded van with a number plate visible, being plate number “CZ 67 XE”.
[62] An email from Ms Jayme Hale to Mr Bucksath at 11.48am on 19 August 2021 appears to forward the complaint and states:
“Driver is Paul Kalipolitis duty 24”.
[63] Ms Hale gave evidence that: 37
• on 19 August 2021, she received an internal email with the customer complaint which provided the licence plate of a Toyota van that had attended the JB Hi-Fi Store on “Monday 18 August 2021”; and
• she cross-referenced the daily journal and identified that the Applicant was the relevant driver as his name was listed against T67 (being a Toyota with 67 in the licence plate); and
• she informed Mr Bucksath about the complaint and that the Applicant was the driver.
[64] Attached to the witness statement of Ms Hale is a copy of a journal extract with the date “Monday 15 August 2021” appearing at the top. Next to the Applicant’s name are start and finishing times of 6am and 2.06pm and a van number “T67”.
[65] Mr Christopher Smedley’s evidence was that he is the manager of the JB Hi-Fi Store and that: 38
• on or about Monday 16 August 2021, he noticed one of his team members looking upset;
• he checked in with the team member (who has requested not to be named) and he reported that he was made to feel uncomfortable by one of the Respondent’s drivers because the driver would never wear a mask, refused to check in and would tell other drivers in the loading area that they did not need to follow the rules regarding vaccines and masks;
• he discussed the issues with the driver with his Area Manager, Ms Colleen Bishop, and told the employee to let him know when the driver came again;
• on or about Wednesday 18 August 2021, the employee informed him when the van was parked in the loading dock and, while the driver was completing a collection for another store, Mr Smedley went into the loading zone and took a picture of the van so the issue could be escalated with the Respondent; and
• on 18 August 2021 at 1.34pm, he sent an email to Ms Bishop with the photo and requested that the driver no longer attend the JB Hi-Fi Store.
[66] The Applicant’s evidence was that he had seen the communication between Mr Smedley and Ms Bishop, including the picture of the van with a “67” in its number plate, and that he did not recognise the number plate as there was no consistent van provided to him. 39
[67] There are anomalies in relation to the date on which the Applicant is alleged to have attended the JB Hi-Fi Store and was driving the van. The complaint is dated 18 August 2021 (being Wednesday) and refers to discussion that took place on Monday (the previous Monday, being 16 August 2021). The journal that Ms Hale consulted in identifying the Applicant as the driver of the van provides a record for “Monday 15 August 2021”. The letter dated 26 August 2021, which advised the Applicant that he was to be subjected to a “Disciplinary Inquiry”, refers to allegations that:
“1. On Wednesday 18 August 2021 during your attendance at the JB-HIFI Penrith store you:
a) Failed to sign in using the necessary QR code or otherwise as is required due to the current NSW Covid restrictions.
b) Failed to wear a face mask as is required due to the current NSW Covid restrictions.
c) Engaged in an inappropriate discussion with JB-HIFI staff regarding Covid conspiracy theories…”
[68] While there appears to be confusion regarding the date on which the alleged conduct raised in the complaint was said to have taken place, I accept that Mr Bucksath became aware of the complaint on 19 August 2021 and, based on the information provided by Ms Hale, believed that the complaint was in relation to the Applicant.
[69] Mr Bucksath’s evidence was that, on Friday 20 August 2021, he asked his team to move duties around so that the Applicant did not have to attend the JB Hi-Fi Store. 40 Mr Bucksath also gave evidence in relation to a discussion he had with the Applicant at 10.45am that day, which he described as informal, his evidence being that:41
• he asked the Applicant whether he had any issues at JB Hi-Fi to which the Applicant indicated that he had not;
• he asked the Applicant whether he wore a mask there and the Applicant stated he didn’t have to because it was an outside dock;
• the Applicant stated that there was no QR code there;
• he told the Applicant that a complaint had been made against him, alleging the Applicant did not wear a mask;
• the Applicant said he would go and talk to them;
• Mr Bucksath responded “No, you are not going to approach them at about it at all”;
• Mr Bucksath told the Applicant not to approach the JB Hi-Fi staff and not to ask about the complaint as it was for him to investigate;
• Mr Bucksath told the Applicant he just wanted to get his view of the complaint before he moved forward;
• the Applicant was adamant that he would talk to them and in response Mr Bucksath repeatedly said “Paul, I am directing you not to speak to staff there about the complaint”; and
• the Applicant made reference to a PIN that he had issued that morning and Mr Bucksath told him that he had sent it off to the safety team and it would be dealt with.
[70] The Applicant’s evidence was that, on Friday 20 August 2021: 42
• he issued a PIN at 6am;
• he received a text message from Mr Bucksath at 8.09am stating “Need to talk to you urgently about a cuatomer (sic) conplaint (sic)”. A copy of the text message was provided in the Applicant’s evidence;
• after receiving the text message, he drove back to the worksite and, as he was pulling up, Mr Bucksath approached him;
• he said he would park the van, which he did;
• he had a meeting arranged in relation to another driver and the Applicant was her support person;
• as he was walking to the meeting room with Mr Bucksath at around 11am, Mr Bucksath said there had been a customer complaint but not to worry about it, to trust him and he would sort it out;
• he insisted on knowing what it was about and pressed Mr Bucksath at which point Mr Bucksath told him JB Hi-Fi had made a complaint that he was not wearing a mask and did not use the QR code;
• he told Mr Bucksath he had a medical exemption, does not go into the JB Hi-Fi Store, that he had been going there for weeks and they had not mentioned anything about it;
• Mr Bucksath told the Applicant he did not want the Applicant going to the JB Hi-Fi Store that afternoon and the Applicant said “alright”;
• during his conversation with Mr Bucksath, he did not say that there was no QR code but rather said “I do not enter the store”; and
• he told Mr Bucksath at 11am that he had a medical certificate for outside work.
[71] During cross-examination, the Applicant: 43
• explained that he had indicated to Mr Bucksath that he wanted to go to the JB Hi-Fi Store to explain what was going on and hopefully sort something out with the customer;
• acknowledged that Mr Bucksath said in reply “I don’t want you going back there”; and
• understood that Mr Bucksath did not want him to return to the JB Hi-Fi Store.
[72] I am satisfied based on the evidence before the Commission that, at around 10.45am on 20 August 2021, Mr Bucksath had a conversation with the Applicant and sought to get his views about the complaint that had come to his attention, that the Applicant expressed a desire to talk to JB Hi-Fi about it, that Mr Bucksath told the Applicant not to do so and that the Applicant understood this request.
[73] Mr Bucksath’s evidence was that: 44
• his office is next to Ms Kina Malaitai’s;
• he overheard a conversation between the Applicant and Ms Malaitai in which:
• the Applicant said that he wanted to see the complaint and that if it is not in writing it doesn’t exist; and
• Ms Malaitai told the Applicant that the complaint is under investigation and that he needed to wear a mask;
• he left his office and as he approached the Applicant, the Applicant started to walk in the other direction;
• he told the Applicant he was not allowed to be in the location he was in as it was not a part of the COVID-19 zone he was in;
• he told the Applicant to wear a mask as he was not wearing one, to which the Applicant responded that he did not have to wear one as he had a medical exemption;
• he asked to see the medical certificate, to which the Applicant responded “I don’t have to” and said it was in his bag but that he did not need to show Mr Bucksath; and
• the Applicant then went back out on the road.
[74] I am satisfied based on the evidence before the Commission that at some time during the morning of 20 August 2021, the Applicant had a further discussion with Mr Bucksath before leaving the premises to do his mail collection.
[75] Mr Bucksath’s evidence was that, on the afternoon of 20 August 2021: 45
• he received a telephone call, and he cannot recall who from, informing him that the Applicant had gone back to the JB Hi-Fi Store;
• the person told him that the Applicant had gone back to the JB Hi-Fi Store and was demanding to know who had asked about him and made the complaint; and
• at 2.18 pm, he received an internal email from Ms Luisa De Campo regarding a complaint made by JB Hi-Fi about the Applicant’s attendance at the JB Hi-Fi store on 20 August 2021.
[76] A copy of an email chain was attached to Mr Bucksath’s witness statement. It attaches communications in relation to the initial complaint and an email communication from Mr Smedley to Ms Bishop with a time stamp of 1.09pm on 20 August 2021. That email reads:
“Hi Colleen,
The same driver came today to pickup our Auspost deliveries.
He was once again spouting his conspiracy theories and demanded to know who wrote the email about him.
He was also not wearing a mask…again.
This is obviously not sorted, can you please escalate again.
Thanks - Chris”
[77] The email chain indicates that the matter was escalated within JB Hi-Fi and an email was sent from Mr John Ford to Ms De Campo at 1.28pm on 20 August 2021, which forwards the above email communication from Mr Smedley to Ms Bishop and reads:
“Hi Luisa,
FYI below, it’s very concerning that it has happened again today.
Also, pickup times at JB & TGG stores are 2:30pm or after, drivers shouldn’t be going to stores this early.
If you are talking to Van Services, can you please check if they know that?
Please confirm with a responses asap.
John Ford.”
[78] The email chain indicates that Ms De Campo forwarded the above email communications to Ms Hale and Mr Bucksath at 2.18pm on 20 August 2021, with the following request:
“…Can I kindly ask this driver is removed from servicing this store immediately? This has now been escalated further internally at JB HI FI so it’s imperative we get this sorted. Please advise what steps will be taken to have this rectified...”
[79] Mr Smedley’s evidence was that, on 20 August 2021, he was on leave when a team member or manager reported to him that the driver had attended the JB Hi-Fi premises again and that the driver: 46
• wasn’t wearing a mask again;
• asked “Employee A” if it was him that complained and, after “Employee A” said he didn’t know what he was talking about, continually asked if it was “Employee B”;
• wouldn’t let it go and said he didn’t think it was “Employee C” because he has a “great bond” with them;
• was level toned, “but just kept harping on about it and trying to push the subject of who actually complained”; and
• “went off on a tangent of how he doesn’t watch mainstream media stuff because it’s all “bullshit” and you can’t believe it, and then started talking about how Jeffrey Epstein died and how it’s a conspiracy”.
[80] Mr Smedley’s evidence was that, at 1.09pm on 20 August 2021, he sent an email to Ms Bishop requesting that she escalate the issue. 47
[81] The Applicant’s evidence was that, on 20 August 2021, after his conversation with Mr Bucksath that morning: 48
• he went to do the other pickups from stores around the JB Hi-Fi Store;
• he saw the JB Hi-Fi roller door was open;
• he said to one of the staff there “has anyone come to do your pickup”, to which the staff member responded “no”;
• he was concerned that if nobody picked up from the JB Hi-Fi Store there may be some other complaint made and he may end up in trouble over it, so he did the pickup;
• he asked the JB Hi-Fi staff member whether he could speak to the manager to clarify something;
• he said that the reason why he doesn’t wear a mask was because he has a certificate from his doctor; and
• the JB Hi-Fi staff member said that the manager was not there that day and that the email that would have been sent to the Respondent wasn’t a personal complaint about the Applicant but was a generic email that went to all of the courier companies.
[82] During cross-examination, the Applicant gave evidence that when he went to the shared loading dock to pick up from other customers: 49
• this was his first location on his run;
• he said to one of the JB Hi-Fi staff members:
“Listen guys. I’m just checking, I’m here to pick up other customers…Has anyone been here to pick your mail up, your parcels up?...Because I’ve been told that I’m not to come here to pick your parcels up…What do you want me to do? Do you want me to pick your parcels up, or don’t you want me to pick your parcels up?”
• the JB Hi-Fi staff member said:
“No, no, we don’t have a problem with - pick them up.”
• he picked up the parcels as he was concerned that he could have been in trouble later on for not picking them up.
[83] In relation to discussions regarding the complaint at the JB Hi-Fi Store, the Applicant’s evidence under cross-examination was that: 50
• he said to a JB Hi-Fi staff member:
“Mate, is your manager here, because I’d love to speak to him because there seems to be a misunderstanding”;
• the JB Hi-Fi staff member said:
“No mate. They’re not here”;
• the Applicant said “No worries” and “explained to him about what medical exemption and this and that” before being given the parcels and leaving.
[84] I am satisfied based on the evidence before the Commission that, on 20 August 2021, the Applicant returned to the JB Hi-Fi Store, after being told by Mr Bucksath earlier not to do so, understanding what was asked of him and agreeing not to do this when he said “alright”. The evidence also establishes that the Applicant engaged in a conversation about the complaint with a JB Hi-Fi staff member. I accept the evidence of Mr Bucksath that he told the Applicant not to approach JB Hi-Fi about the complaint and I find that the Applicant acted in contravention of that direction.
[85] Mr Bucksath gave evidence that: 51
• later in the day on 20 August 2021, he confirmed that the team had put arrangements in place so that the JB Hi-Fi Store and other locations at the shopping centre were not on the Applicant’s duty board;
• he had communicated with the Respondent’s human resources function and Mr Allen Britten, Manager of the Respondent, about what had happened and was concerned that the Applicant had gone back to the JB Hi-Fi Store even though he had given him a clear direction not to approach anyone about the complaint; and
• he sent three emails to human resources as events unfolded across 19 and 20 August 2021.
[86] The emails sent by Mr Bucksath to human resources were attached to his statement.
[87] The first email, sent at 1.26pm on 19 August 2021 by Mr Bucksath to human resources, reads:
“MyHR,
Seeking your support/advice in addressing the behaviour detailed in the complaint below.
The staff member has been identified as Paul Kallipolitis based on the duty he was assigned in the Van services daily Journal.
Allegations from the customer are that:
One 18 August when collecting from JB Hi fi at Penrith, Mr Kallipolitis did not sign in as per NSW health orders, did not wear a mask as per NSW health orders and was sharing “conspiracies” about COVID19 with the staff at JB hi fi.
I am seeking your advice as Mr Kallipolitis has been vocal in the past about this topic and I have had a diary noted conversation with him on 9 August regarding him sharing his personal views about COVID whilst at work.
Mr Kallipolitis is also the HSR & AUR for his workgroup and will likely escalate this matter once we begin to address his behaviour.
I look forward to hearing from you promptly on this matter.”
[88] The second email, sent at 1.19pm on 20 August 2021 by Mr Bucksath to human resources, reads:
“MyHR,
Further to below.
Kina had a discussion when Paul approached her today.
Paul wanted to know about the complaint. Kina spoke with Paul. Paul advised how pick ups are conducted at JB Hifi. Kina explained to Paul that he needed to wear a mask. He stated its outside. Kina and I both advised that he still needed to wear a mask when doing the pickup. Paul stated that he does not need to wear a mask outside and has a medical exemption due to a medical condition with his heart.
I asked if he could provide medical evidence, he stated “I don’t have to”. When asked he again he refused to provide the evidence. I reminded him that he needs to wear a mask as he walked out of the office.
Can you advise how to proceed based on this latest information.”
[89] The third email, sent at 5.21pm on 20 August 2021 by Mr Bucksath to human resources, reads:
“MyHR,
Further after the below discussion with Mr Kallipolitis he attended the customer premises again and refused to follow rules as per NSW health orders. He also confronted staff demanding to know who wrote the email about him.
During my first informal conversation with Mr Kallipolitis I instructed him not to approach anyone at the store regarding the complaint.
Can you advise next steps to take. I intend to remove Mr Kallipolitis from customer facing duties at this point until he is able to provide medical evidence and we can make further decision regarding his behaviour.”
[90] Mr Bucksath’s evidence was that: 52
• through his communications with Mr Britten, human resources and others, it had been determined that the Applicant’s behaviour would be investigated pursuant to a formal disciplinary inquiry;
• suspending the Applicant from duties was under consideration;
• he made the decision that the Applicant should not perform any customer facing duties while the complaint was investigated; and
• on 23 August 2021, he spoke to Ms Linda Patterson, Postal Transport Coordinator, and directed her not to give the Applicant the keys to any van that day.
[91] Ms Patterson gave evidence that, on 23 August 2021: 53
• Mr Bucksath came to see her first thing in the morning and told her not to issue keys to the Applicant under any circumstances until he had spoken with the Applicant;
• when the Applicant came in to collect his keys, she advised him that he needed to go and see Mr Bucksath;
• Mr Bucksath came to see her again and told her not to issue the keys to the Applicant under any circumstances;
• the Applicant approached her and asked for the keys at which point she told the Applicant she was not allowed to give them to him;
• the Applicant said “OK, I’ll get them from Shawn”, in reference to the keys; and
• after the Applicant left, she went inside the office to tell Mr Bucksath what had happened and then Mr Bucksath left the office.
[92] During cross-examination, the Applicant was asked whether Ms Patterson told the Applicant that she had been told not to give him the keys to the van that day, to which the Applicant responded:
“All she said to me was, ‘I’ve been told by Ben not to give you the van keys’, so I just said, ‘Okay’, I said, ‘Okay, all right, I'll just go and grab them off Shawn’ and then I walked over towards the van and that’s when Shawn said to me - and that was the first time when I - I didn't even know that I wasn’t doing the duty - and that was when Shawn said, ‘Oh, I've been told that I’m doing your run today’ and I said, ‘What?’ I said, ‘I haven’t been told by anyone what’s going on’, and then that’s when, five minutes later, Ben come over and he said, ‘I need to talk to you right now, right now.’ And I said, ‘Well, hang on a minute’, I said, ‘Well, what’s it about?’ I said, ‘What’s going on, what’s it about?’ ‘Oh, it’s about that customer inquiry. I need to see you right now.’ I said, ‘Oh’, I said, ‘Okay, all right, well, no worries, hang on’ and, luckily, thinking - I said, ‘Oh, Shawn, can you please come in with me?’ and then Shawn come in and we went into the office together. That’s how it happened.” 54
[93] During cross-examination, the Applicant was asked about whether Mr Bucksath told him that he was being removed from driving duties and the following exchange occurred in relation to the discussion between the Applicant and Mr Bucksath: 55
Mr Spargo: “Mr Kallipolitis, what he did say was that you were being removed from driving duties and you were to perform indoor duties for the time being; that’s right, isn’t it?”
Applicant: “And I asked why.”
Mr Spargo: “Okay. And did you say to him as well, you said, ‘You can't do that’?”
Applicant: “I said to him, I said, ‘Can you please’ - I didn’t say he can’t do that, I said, ‘Can I please have that in writing?’”
Mr Spargo: “I suggest to you, you said to him that, ‘You can’t do that’?”
Applicant: “No, I didn’t say that.”
Mr Spargo: “You didn’t consider it a lawful and reasonable direction; that’s your evidence in your witness statement?”
Applicant: “Yes, I just - I just said - I said to him, ‘Can I please have it in writing?’ because I felt - I knew what was going on, that he was targeting me, and I just said to him, ‘Can I have it in writing?’ so then I can then try and defend myself. It was at that stage - at that stage, I hadn’t seen the complaint in writing, I hadn’t seen anything by Ben Bucksath in writing what I had been accused of. Nothing, nothing at all. And then he wanted to punish me, he wanted to punish me and take me off all driving duties and put me in an area that I’ve never worked there before.”
Mr Spargo: “For all those reasons, Mr Kallipolitis, you didn’t consider his direction was valid, did you?”
Applicant: “Well, I thought it was unfair, unjust, okay, that’s how I felt, that’s how I felt.”
Mr Spargo: “And you decided, rather than just comply and wait things out, you decided not to comply with it, didn’t you?”
Applicant: “Well - well, Ben Bucksath didn’t comply to Australia Post’s own policy and procedure. Where’s my – where’s my - you know, where’s my fairness?”
Mr Spargo: “I’m asking about Ben, Mr Kallipolitis?---(Indistinct). You decided - - -?"
Applicant: “Yes, because he didn’t follow the Australia Post policy and procedure where there is steps to follow. He’s jumped like three/four steps. Not only did he not give it to me in writing, there was no face to face, there was no formal counselling, there was no warning counselling, he’s gone straight to – he’s took it upon himself, taken me off the road and gone straight to an inquiry. Of course I’m going to be upset, of course I’m going to feel unjust - you know - - -”
Mr Spargo: “Mr Kallipolitis, you decided not to follow his direction?”
Applicant: “I asked him if I could have it in writing. I thought that was - - -”
Mr Spargo: “No, Mr Kallipolitis, listen to my question. You decided, for all those - well, for whatever reasons, you decided not to follow his direction?”
Applicant: “On the proviso that he wasn’t following Australia Post’s policy and procedure and, in doing - and I, you know, in hindsight, looking back, yes, I shouldn’t have - I shouldn’t have gone out, but, at the time, I felt that it was only fair and reasonable on how I’d been treated, especially the last couple of days, and I knew - I knew what he was up to, and that’s why I was just - I was saying, ‘Can I have it in writing?’ But, yes, I am remorseful. I - you know, if I had it all over again, I - I wouldn’t have - I wouldn’t have gone out, but, you know, he didn’t follow the proper process and procedures in the first place because he didn’t even consult with me. Like what kind of a - I start at 6 o’clock, I clock on and they’re not even giving me the keys.”
Mr Spargo: “Why are you remorseful if you think it’s all a set up?”
Applicant: “Sorry?”
Mr Spargo: “Why are you remorseful if you think it was all a set up?”
Applicant: “Well, because the thing is he gave the direction, like I still feel - I still feel that I’ve been unjust - unfairly treated, but, yes, you know, I should have, you know, responded in writing, but, like I said, he didn’t follow the proper process and procedures in the first place. Okay?”
Mr Spargo: “Mr Kallipolitis, when you asked for it in writing, Mr Bucksath told you, ‘Not at this stage, you’re not getting it at this stage’ and you said, ‘If it’s not in writing, you’re lying.’ Is that right?”
Applicant: “Well, I didn’t believe - I didn’t believe him.”
Mr Spargo: “Did you say that? Mr Kallipolitis, answer my question. You said that to him, didn’t you?”
Applicant: “That I said that he - yes, I may have, I may have. I - I can’t word for word, but I didn’t believe him.”
Mr Spargo: “And you said then, Mr Kallipolitis, you said to Shawn, ‘Give me the keys, Shawn’ and Shawn placed the keys on a desk; that’s right, isn’t it?”
Applicant: “Well, Shawn placed them on the table and then - and then I grabbed the keys, that’s right, and then me - - -”
Mr Spargo: “You grabbed the keys?”
Applicant: “And then me and Shawn both walked out together.”
Mr Spargo: “And while that was happening, Mr Bucksath said, ‘I’m directing you to give me the keys.’ That’s right, isn’t it?”
Applicant: “He - he may have.”
Mr Spargo: “He said he is directing you not to go out in the van today?”
Applicant: “And I just - and I kept on - and I kept on saying, ‘Well, Ben, I just want it in writing.’ I said, ‘The proper process and procedure’, I said, ‘I’ve been working with Australia Post for 32 years, when something goes to an inquiry and you’ve jumped three steps, four steps, where’s it in writing?”
Mr Spargo: “You wanted the direction in writing?”
Applicant: “No, I wanted - I wanted - I wanted what I was being punished for in writing. That’s what I wanted in writing. What did I do wrong? If he had something in writing and said, ‘Right, Mr Kallipolitis, we have found you to have done this, this, this and that’, I wouldn’t have gone out, I would’ve went, ‘Right, okay, thank you’ and then I would have then - I would have responded in writing back. But I got nothing, I got nothing.”
[94] Mr Bucksath gave evidence that: 56
• the Applicant’s shift on 23 August 2021 commenced at 6am and at approximately 6.05am he approached the Applicant to advise him that he needed to speak with him;
• the Applicant asked “what about” to which Mr Bucksath replied that he would discuss it with him in the office;
• the Applicant continued to ask so Mr Bucksath told him it was regarding the customer complaint from the prior week;
• the Applicant said that this was not enough notice and that he had to go on his duty at which point Mr Bucksath informed him that he would not be going out that day and he needed to have a discussion with him in the office;
• the Applicant refused to do so and continued to push a roll cage with parcels towards the office;
• once the Applicant got to the office, he started to look for his keys and Mr Bucksath advised him that he needed to speak with him in the office and asked him to come in;
• the Applicant stated that he wanted a witness, Mr Bucksath asked him to get his witness and come into the office;
• the Applicant came into the office with Mr Shawn Taylor (another driver);
• the Applicant tried to bring up other topics however Mr Bucksath advised him they were there to discuss a customer complaint related to his behaviour and that he would be removed from driving duties pending advice from human resources and that he was to perform indoor duties;
• the Applicant stated “you can’t do that” and that he would be “going out on the road”;
• Mr Bucksath advised the Applicant that, as the Facility Manager, he was directing him to complete indoor duties and not to go out on the road that day;
• the Applicant stated “I want the complaint in writing”. Mr Bucksath replied that he would not give it to him at that stage and the Applicant stated “if it’s not in writing, you’re lying” and continued to argue stating “you’re lying” at least once more;
• the Applicant then looked at Mr Taylor and said “give me the keys Shawn” and Mr Taylor placed the keys on the desk;
• Mr Bucksath advised the Applicant not to take the keys and that he was directing him to complete indoor duties that day;
• the Applicant grabbed the keys stating “you can’t do that” and walked out of the office;
• Mr Bucksath asked the Applicant to give him the keys and he refused, at which point Mr Bucksath stated “Paul I’m directing you to give me the keys”;
• the Applicant again refused to give him the keys stating “I want it in writing”, at which point Mr Bucksath advised him that he was giving him a verbal direction;
• the Applicant replied “oh, verbal. I want it in writing” and left the office;
• Mr Bucksath followed the Applicant and advised him that he was directing him not to go on the road;
• Ms Malaitai was coming back into the office at this stage and he advised her that the Applicant was not to go on the road;
• the Applicant came to the office and asked Ms Patterson for “keys to a Toyota” at which point Ms Patterson looked at Mr Bucksath and he advised her not to give the Applicant keys as he was staying in the dock that day;
• the Applicant left the office;
• a couple of minutes later Mr Bucksath spoke to Ms Malaitai who advised him that the Applicant still had the keys to a van that he had taken from Mr Taylor;
• Mr Bucksath walked over to the area where the Applicant had loaded his van and, as Mr Bucksath arrived, the Applicant was entering the van;
• Mr Bucksath knocked on the window several times to get the Applicant’s attention, but the Applicant ignored him;
• when the Applicant did not respond, Mr Bucksath moved into the roadway, out of the line of the vehicle to try and make eye contact and get the Applicant’s attention;
• the Applicant began to drive out and Mr Bucksath stepped to the side to ensure he was out of the way;
• as the Applicant exited the bay, he lowered the window and stated again, “I want it in writing” and Mr Bucksath advised the Applicant that he was directing him to get out of the vehicle and that if the Applicant drove the vehicle off the premises he would notify the police;
• the Applicant drove away at approximately 6.25am;
• Mr Bucksath asked Ms Malaitai to contact the security guard to attempt to stop the Applicant before he left the Eastern Creek Facility and Ms Malaitai made her way down to the door;
• Mr Bucksath followed shortly thereafter whilst advising Mr Britten of the events by telephone;
• Mr Bucksath and Ms Malaitai both stood on the road to try and flag the Applicant down and were ignored by the Applicant who was not making eye contact;
• Mr Bucksath and Ms Malaitai moved out of the way so the Applicant would not hit them; and
• Mr Bucksath estimated that the Applicant was driving significantly faster than the 5km per hour speed limit.
[95] In relation to the events that took place at the Eastern Creek Facility on 23 August 2021, the Applicant gave evidence that: 57
• in the morning, Mr Bucksath directed him not to go out in the van but to work in the warehouse in the loading docks;
• the Applicant asked that the direction be put in writing and Mr Bucksath declined to do so;
• the Applicant then spoke to his direct supervisor, Ms Malaitai, and told her about the situation, including Mr Bucksath’s direction and that the Applicant had asked for it to be communicated in writing and he didn’t do so; and
• Ms Malaitai said to the Applicant “Fine do your run” and Mr Taylor witnessed the conversation.
[96] During cross-examination, the Applicant provided similar evidence 58 and indicated that, after this, he loaded up the van with Mr Taylor and then Mr Bucksath walked over towards the van.59 During cross-examination, the following exchange occurred about subsequent events:60
Mr Spargo: “So, Mr Kallipolitis, if I understand your evidence correctly, that Kina was not with Ben at the van, is that right?”
Applicant: “Ben came by himself to the van.”
Mr Spargo: “All right. I suggest to you, Mr Kallipolitis, that they were both there and, initially, they both implored you not to drive out before Kina walked off, in the direction of gate 1, is that correct?”
Applicant: “No, it’s not correct. I just told you, Kina wasn’t there.”
…
Applicant: “Kina was not there. Kina had left. She was gone. After I explained to her, okay, and Shawn can confirm it, because Shawn was there too. He’s seen – he’s seen everything. Kina was not there, okay? It was only Ben. Ben came back, by himself, knocked on the window and I wind the window down and it was just an overflow conversation of what we had in the office and I just said, ‘Ben, mate, I just want it in writing’. I said, ‘I’m just asking to have it in writing, please’.”
Mr Spargo: “And Ben advised you he was directing you to get out of the vehicle, didn’t he?”
Applicant: “Yes, and that’s what I’m saying, it was an overflow discussion that we had in - from the office, the same one.”
Mr Spargo: “And he told you that if you left the premises he would call the police, didn’t he?”
Applicant: “Yes, well, I didn’t believe him that he was going to do that either.”
Mr Spargo: “Okay, but he told you that, that’s what I’m asking you?”
Applicant: “Yes.”
Mr Spargo: “Nonetheless, you drove off?”
Applicant: “I drove off, yes.”
[97] In relation to the events that took place at the Eastern Creek Facility on 23 August 2021, Mr Shawn Taylor gave evidence that: 61
• he was present during an exchange between the Applicant and Ms Malaitai at around 6.20am on the morning of 23 August 2021;
• the Applicant explained what had taken place with Mr Bucksath and stated specifically that Mr Bucksath could not provide him with anything in writing about the allegations against him and the enquiry; and
• Ms Malaitai then said that it was fine for the Applicant to do his usual run.
[98] A statutory declaration was attached to Mr Taylor’s witness statement which declared:
• On 23 August 2021, at around 6.20am, Mr Taylor was standing near the Applicant’s van and heard the Applicant say to Ms Malaitai words to the effect of “Ben [Bucksath] could not provide him [Paul] nothing in writing about the allegations and enquiry”.
• Ms Malaitai said words to the effect that “It was fine then to do you’re (sic) run”.
• Ms Malaitai is the Applicant’s direct manager.
[99] In relation to the events that took place at the Eastern Creek Facility on 23 August 2021, Ms Malaitai gave evidence that: 62
• on 23 August 2021, she was on the floor of the Eastern Creek Parcel Delivery Centre when she saw the Applicant and Mr Taylor pass by her with the Applicant stating “I’m off to do my run”;
• she did not know at that stage that Mr Bucksath had directed the Applicant not to drive the van as she had not yet spoken to Mr Bucksath that morning and the Applicant did not tell her about his direction not to drive the van;
• she then saw Mr Bucksath follow the Applicant onto the floor and Mr Bucksath told Ms Malaitai that the Applicant was not to go out on his run;
• Ms Malaitai then approached the Applicant and asked for the keys to the van to try and stop him from leaving and told the Applicant not to drive the van;
• Mr Bucksath knocked on the van window and the Applicant ignored him;
• Mr Bucksath was calling out to the Applicant not to go and the Applicant said “I can still do my run” and started to drive his van;
• Mr Bucksath told Ms Malaitai to go to the exit to stop the Applicant and Ms Malaitai went to the exit to try to do so;
• Ms Malaitai also contacted security to try and prevent the Applicant from leaving the site;
• Ms Malaitai stood on the road at the gate and waved her hands to try and get the Applicant to stop;
• the Applicant was not making eye contact and showed no signs of slowing down as he got closer and she had to get out of his way because she believed the Applicant would run her over if she didn’t; and
• Ms Malaitai sent the Applicant a text asking him to come back to the facility and the Applicant did not respond until later when he told her he had been suspended. A copy of the text message was attached to Ms Malaitai’s statement indicating it was sent at 6.42am on Monday 23 August 2021 and read “plz turn back mate plz”.
[100] I find that the evidence before the Commission establishes that, on the morning of 23 August 2021, Mr Bucksath directed the Applicant to complete indoor duties and not to go out on the road that day and that the Applicant did not follow that direction. While the Applicant approached his direct supervisor Ms Malaitai after Mr Bucksath had given the direction, in an apparent attempt to override Mr Bucksath’s direction, before the Applicant left the Eastern Creek Facility that morning, the verbal direction from Mr Bucksath that the Applicant was not to do so had clearly been provided on multiple occasions and the Applicant chose not to follow it and left the Eastern Creek Facility to go out on the road.
[101] It is worth noting that the Respondent provided footage from within the Eastern Creek Facility of the alleged events of 23 August 2021. However, having considered that footage, I have not found it helpful and it does not lead me to reach any different conclusion as to what I have found the evidence of the witnesses establishes in relation to the events of 23 August 2021.
[102] The Applicant gave evidence that, on 23 August 2021, after he left the Eastern Creek Facility: 63
• his first stop was the Penrith Australia Post distribution centre and he went there to pick up mail to deliver as normal;
• as he walked into the pick up area, Mr Britten approached him. The Applicant and Mr Britten went outside and Mr Britten said “you’re suspended”;
• he asked why he was suspended, to which Mr Britten replied “You refused to take a directive from Ben”;
• he then said to Mr Britten “I asked Ben to put it in writing but he refused. What have I done wrong?”;
• Mr Britten replied “yes you’ll get it by the end of the day but you’re suspended”;
• Mr Britten gave him a cab charge and he returned to the Eastern Creek Facility to pick up his car and left; and
• around two and a half hours later, he received an express post envelope containing a letter of suspension. A copy of the letter was attached to the Applicant’s statement.
[103] Mr Britten gave evidence that: 64
• at approximately 6.15am on 23 August 2021, Mr Bucksath called him and advised him that he had directed the Applicant to stay indoors that morning at the Eastern Creek Facility, the Applicant refused to comply with the direction and went to get a van, he told the Applicant not to take the keys to the van and the Applicant obtained a set of keys and got in the van;
• he received further phone calls from Mr Bucksath. On one of those phone calls, he overheard Mr Bucksath telling the Applicant that if he left he would report the van as stolen and, on another, Mr Bucksath told him that the Applicant had left and that he had called the police and reported the van as stolen;
• he asked Mr Bucksath where the Applicant was going and Mr Bucksath told him that the Applicant’s first stop on the original duty board was the Nepean Delivery Centre;
• Mr Britten was onsite at the Nepean Delivery Centre and, when the Applicant arrived, explained what he knew of the situation, that Mr Bucksath had directed the Applicant to perform dock duties and not to take the van out, said that that had been a reasonable direction by his manager to stay at Eastern Creek and not to go on the road and that Mr Bucksath was within his right to provide him with the direction;
• the Applicant stated that he told Mr Bucksath he didn’t believe that there was a customer complaint and that he wanted the direction to remain at Eastern Creek in writing;
• the Applicant continued to hold the van keys despite multiple requests to hand them over;
• the Applicant maintained that Mr Bucksath did not have the authority to tell him that he could not perform his duty for the day;
• the Applicant stated that he had returned to the customer on Friday and was told there was in fact no complaint;
• he told the Applicant he was not meant to go back to the customer as the pickup was removed from his duty board, to which the Applicant stated that no one else was going there so he did and said words to the effect of “the only reason you didn’t want me to go there is so I couldn’t ask the customer about the complaint”;
• the Applicant said he thought it was convenient that he issued a PIN at 6.00am and then a customer complaint was discussed an hour later;
• he explained to the Applicant that there was an actual customer complaint and it was being further investigated;
• he informed the Applicant that the van had been reported as stolen to the police, that the Applicant must hand over the keys and that the Applicant was formally suspended from duty on full pay pending the outcome of a disciplinary inquiry;
• the Applicant initially asked for this in writing and did not hand the keys over, however after further discussion, he handed Mr Britten the keys before leaving the Nepean Delivery Centre at approximately 7.30am via taxi; and
• he executed a suspension letter and arranged for it to be sent to the Applicant via express post.
[104] The letter notifying the Applicant of his suspension, dated 23 August 2021, is attached to both the Applicant and Mr Britten’s witness statements and states:
“Australia Post has received advice of alleged inappropriate behaviour on your part which is inconsistent with Australia Post’s Our Ethics.
You are advised that this matter will be fully investigated in accordance with the Australia Post Employee Counselling and Disciplinary Process. You will be provided with the full details of the allegations that have been made against you and the investigation process.
This letter confirms that you are suspended with pay from your position with Australia Post, with your usual pay and entitlements, from 23 August 2021 until the investigation concludes and further notice is provided to you.
This means that you are not required to attend for work from the date of this letter until further notice is provided to you, but that you must be contactable during your ordinary working hours should Australia Post require you for any reason…”
[105] I find that the evidence before the Commission establishes that, on the morning of 23 August 2021, after being directed not to go out on the road that day, that the Applicant did go out on the road, reaching the Nepean Delivery Centre, until he was stopped by Mr Britten who advised him of his suspension from duty verbally before organising for a suspension letter to be sent to the Applicant via express post.
[106] The Applicant gave evidence that, at around 1.45pm on Monday 23 August 2021, he went to the JB Hi-Fi Store to explain why he was not wearing a mask, told one of the staff that he had a medical certificate and left his email address so the manager could email him back because he was “bewildered with the complaint”. 65
Findings
[107] The Respondent submitted that there was a valid reason for the dismissal related to the Applicant’s conduct. For there to be a valid reason for the dismissal related to the Applicant’s conduct, I must find that the conduct occurred and justified termination.66 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 67
[108] As noted above, I am satisfied based on the evidence before the Commission that:
• on 20 August 2021, Mr Bucksath directed the Applicant not to return to the JB Hi-Fi Store, that the Applicant agreed not to do this when he said “alright” and that the Applicant acted in contravention of that direction by returning to the JB Hi-Fi Store on 20 August 2021;
• on 20 August 2021, Mr Bucksath also directed the Applicant not to approach JB Hi-Fi about the complaint and that the Applicant acted in contravention of that direction by returning to the JB Hi-Fi Store and engaging in a conversation about the complaint with a JB Hi-Fi staff member; and
• on the morning of 23 August 2021, Mr Bucksath directed the Applicant to complete indoor duties and not to go out on the road that day and that the Applicant acted in contravention of that direction by going out on the road in a van owned by the Respondent before being stopped at the Nepean Delivery Centre.
[109] I am also satisfied, based on the Applicant’s evidence, that on Monday 23 August 2021, after being suspended from duty, the Applicant went to the JB Hi-Fi Store to explain why he was not wearing a mask, told one of the staff that he had a medical certificate and left his email address so the manager could email him back.
[110] The Respondent has submitted that there was a valid reason for the dismissal related to the Applicant’s conduct in failing to abide by lawful and reasonable directions of the Respondent. It is necessary to consider whether the directions were lawful and reasonable and whether the Applicant’s conduct in failing to abide by the directions gave rise to a valid reason for his dismissal.
[111] A requirement that employees must follow the lawful and reasonable directions of their employer is implied by law, in the absence of a contrary intention by the parties. 68 In R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday69 (Darling), Dixon J summarised the common law position as follows:
“Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable.
In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.”
[112] The Full Court of the Federal Court of Australia in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union 70 (One Key) said the following about the implied term:
“…the duty of the employee at common law is to obey lawful orders. The “standard or test” by which the common law determines whether the order is lawful is one of reasonableness: R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621. Dixon J explained at 621–2:
If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.
As Finn J observed in McManus v Scott-Charlton (1996) 70 FCR 16 at 21:
The need for some such limitation is patent: employment does not entail the total subordination of an employee’s autonomy to the commands of the employer. As was said by the President in Australian Tramway Employees’ Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42:
A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse[s] to attend a particular church, or to wear a certain maker’s singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.
There are obvious, and powerful, considerations of civil rights and liberties and of due process which inform this. These need not be laboured here although they are of no little significance in the resolution of this case.” 71
[113] While the Full Federal Court in One Key adopted a slightly different formulation of the implied term, nevertheless employees are only obliged to comply with employer directions which are lawful and reasonable.
[114] There is no obligation to obey a direction which goes beyond the nature of the work the employee has contracted to perform, 72 though an employee is expected to obey instructions which are incidental to that work.73 Directions which endanger the employee’s life or health, or which the employee reasonably believes endanger his or her life or health, are not lawful orders;74 unless the nature of the work itself is inherently dangerous, in which case the employee has contracted to undertake the risk.75 The order or direction must also be ‘lawful’ in the sense that an employee cannot be instructed to do something that would be unlawful; such as a direction to drive an unregistered and unroadworthy vehicle.76
[115] Reasonableness is “a question of fact having regard to all the circumstances” 77 and that which is reasonable in any given circumstance may depend on, among other things, the nature of the particular employment.78
[116] Dixon J set out the approach to the task of assessing the reasonableness of a direction in Darling as follows:
“But what is reasonable is not to be determined so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service.” 79
[117] In order to establish that a direction is reasonable, it is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in the best interest of the parties. 80 Reasonableness is a question of fact having regard to all of the circumstances. “In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee’s conduct.”81
[118] In the context of this matter, a customer of the Respondent, JB Hi-Fi, had made a complaint about the Applicant. The Applicant’s Facility Manager, Mr Bucksath, was made aware of the complaint, raised it with the Applicant verbally on 20 August 2021 and asked him not to return to the JB Hi-Fi Store or engage in a conversation about the complaint with JB Hi-Fi staff members. The Applicant was otherwise free to go about his daily run, albeit with one less customer to attend to. At this point, it was irrelevant as to whether the conduct the customer had complained about in the initial complaint had occurred or not. The direction related to the subject matter of the Applicant’s employment and involved no illegality. Taking into account all the circumstances, I find that the directions given by Mr Bucksath on Friday 20 August 2021 that the Applicant not return to the JB Hi-Fi Store and not speak to JB Hi-Fi staff members about the complaint were both lawful and reasonable.
[119] The subsequent direction given to the Applicant on Monday 23 August 2021 needs to be understood in the context of the Applicant’s escalating behaviour. On 20 August 2021, the Applicant returned to the JB Hi-Fi Store and engaged in a conversation about the complaint with a JB Hi-Fi staff member, after being directed by Mr Bucksath earlier not to do so. Having learned of this, Mr Bucksath directed the Applicant, on multiple occasions, not to go out on the road on Monday 23 August 2021. The direction related to the subject matter of the Applicant’s employment and involved no illegality. Taking into account all the circumstances, including that the Applicant had already returned to the JB Hi-Fi Store in contravention of Mr Bucksath’s direction not to on 20 August 2021, I find that the direction given by Mr Bucksath on Monday 23 August 2021 that he not go out on the road to be both lawful and reasonable.
[120] It is not in contest that the Applicant issued a PIN to the Respondent on 20 August 2021 in his capacity as Health and Safety Representative. However, I find that this had nothing to do with the directions that were provided to the Applicant by Mr Bucksath and were not complied with by the Applicant or the disciplinary action that followed. The complaint from JB Hi-Fi was from Mr Smedley to Ms Bishop, who then raised the matter within the Respondent. I am satisfied that Mr Bucksath did not concoct the complaint as some form of retaliation for the issuing of the PIN. Rather, Mr Bucksath was tasked with dealing with the complaint and proceeded to do so.
[121] While the Applicant may have been upset by the complaint alleged to have been made against him and may have had an appetite to take matters into his own hands in order to ‘sort things out’, the directions given to him were lawful and reasonable and the Applicant did not follow them. The facts are that the Applicant was told not to return to the JB Hi-Fi Store and not to talk to JB Hi-Fi staff members about the complaint yet he did so, not only once after being told not to, but again by his own admission on 23 August 2021.
[122] The seriousness of the Applicant’s misconduct in failing to comply with his employer’s lawful and reasonable directions is further exacerbated in that, even when placed on suspension from duty pending the outcome of the disciplinary inquiry, he again returned to the JB Hi-Fi Store on 23 August 2021 and engaged in or sought to engage in discussions with JB Hi-Fi staff members about the complaint. While this third visit to the JB Hi-Fi Store happened while the Applicant was suspended from duties, such conduct has a relevant connection to the employment in that the Applicant returned to a place of work and engaged in discussion with a customer about a complaint when he was told not to and had been put on notice that he was suspended from duty on full pay pending the outcome of a disciplinary inquiry into similar conduct. The evidence suggests that the Applicant had a complete disregard for the lawful and reasonable directions provided by the Respondent’s Facility Manager. Such conduct has a relevant connection to the employment 82 and, viewed objectively, was likely to cause serious damage to the relationship between the Applicant and Respondent.
[123] I find that the Applicant’s failure to follow the lawful and reasonable directions of the Respondent constitutes misconduct and is a valid reason for the dismissal.
Was the Applicant notified of the valid reason?
[124] Proper consideration of s.387(b) of the FW Act requires a finding to be made as to whether the Applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a) of the FW Act. 83
[125] 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, 84 and in explicit85 and plain and clear terms.86
Submissions
[126] The Applicant submitted that s.387(b) of the FW Act is not relevant unless there was a valid reason for the dismissal, which he says does not exist. 87 The Applicant further submitted that the Respondent failed to provide notification of its reasoning or claimed factual basis for its conclusion, despite the Applicant having explained that he had a medical exemption for wearing a mask outdoors and that he never entered the store, and how the Applicant was in breach of the QR code or mask requirements.88
[127] The Respondent submitted that the Applicant was notified of the valid reason in writing on 21 October 2021. 89
Evidence
[128] Mr Tim Reichel, HR Business Partner of the Respondent, gave evidence that: 90
• he was appointed as the inquiry officer for a disciplinary inquiry into the Applicant;
• on 26 August 2021, he sent the Applicant a ‘Notification of Disciplinary Inquiry’ by express post to let him know that the Respondent was conducting a disciplinary inquiry and that he had been appointed as the inquiry officer. A copy of the Notification of Disciplinary Inquiry was attached to Mr Reichel’s statement and set out a range of allegations;
• on 31 August 2021, he received the Applicant’s written rebuttal to the allegations;
• on 1 September 2021, he interviewed the Applicant via Webex in the presence of the Applicant’s support person, going through the allegations with the Applicant and the Applicant’s responses; and
• on 1 October 2021, he finalised a disciplinary inquiry report which included a recommendation. A copy of the disciplinary inquiry report was attached to Mr Reichel’s statement.
[129] The Notification of Disciplinary Inquiry set out a number of allegations that were to be considered as a part of the disciplinary inquiry. These included, by way of summary, that:
• On Wednesday 18 August 2021, during the Applicant’s attendance at the JB Hi-Fi Store, the Applicant:
• failed to sign in using the necessary QR code or otherwise as required due to COVID-19 restrictions;
• failed to wear a mask as required due to COVID-19 restrictions; and
• engaged in an inappropriate discussion with JB Hi-Fi staff regarding COVID-19 conspiracy theories.
• On Friday 20 August 2021, after being notified of the customer complaint from JB Hi-Fi by Mr Bucksath and despite being given a clear direction by Mr Bucksath not to approach JB Hi-Fi about the complaint, the Applicant attended the JB Hi-Fi Store again where he:
• failed to wear a face mask as required due to COVID-19 restrictions;
• engaged in an inappropriate discussion with JB Hi-Fi staff regarding COVID-19 conspiracy theories;
• demanded that JB Hi-Fi staff tell him who complained about him; and
• by approaching JB Hi-Fi staff about the complaint, failed to follow the reasonable and lawful direction given to him by Mr Bucksath.
• On Monday 23 August 2021, at the Eastern Creek Facility, when given numerous clear lawful directions not to drive a van, the Applicant refused, demanded the direction in writing and, without authorisation, drove a van from the facility.
• On Monday 23 August 2021, the Applicant attended the JB Hi-Fi Store and had further communications with staff regarding COVID-19.
• The Applicant, in engaging in the conduct described above, acted contrary to his responsibilities as an Australia Post employee and breached various sections of the Respondent’s ‘Our Ethics’ policy.
[130] The Notification of Disciplinary Inquiry explained that if any of the alleged behaviour was proven and constituted a breach of the ‘Our Ethics’ policy, after considering any mitigating circumstances, a recommendation would be made to the delegate and that may be that the Applicant is subject to disciplinary action up to and including termination of employment.
[131] Mr Reichel’s evidence was that: 91
• after reviewing the information before him, he considered that the Applicant had breached the Respondent’s ‘Our Ethics’ policy and that the conduct amounted to serious and wilful misconduct;
• he considered there was a valid reason for dismissal on the grounds of health and safety, reputational damage to the Respondent, and repeated failure to comply with reasonable and lawful directions;
• on 1 October 2021, he finalised the disciplinary report, recording the responses of the Applicant and other witnesses;
• he recommended that the Applicant be dismissed; and
• he sent a Notification of Disciplinary Inquiry Recommendation to the Applicant by express post, the purpose of which was to notify the Applicant that it had been recommended to the relevant decision maker, Ms Helen Goodyear, that the Applicant’s employment be terminated, invite the Applicant to provide a response to Ms Goodyear within five calendar days and advise him of his appeal rights.
[132] A copy of the Notification of Disciplinary Inquiry Recommendation was attached to Mr Reichel’s witness statement. It restates the allegations set out in the Notification of Disciplinary Inquiry and states that Mr Reichel has found the breaches proven. Among those breaches are conduct that I have found occurred and which I have found constitute a valid reason for the dismissal. These include that the Applicant failed to follow the reasonable and lawful direction given to him by Mr Bucksath by attending the JB Hi-Fi Store on 20 August 2021 and approaching staff about the complaint on 20 August 2021 and by driving a van from the Eastern Creek facility without authorisation after being given directions not to drive a van on 23 August 2021. In other words, the Applicant was directed not to leave the Eastern Creek Facility on 23 August 2021 but did so, in a van, in contravention of the reasonable and lawful direction given to him.
[133] Ms Helen Goodyear, Territory Manager of the Respondent, gave evidence that: 92
• the Respondent’s disciplinary process is quite structured and includes that an appropriately senior person will be appointed delegate to decide what action is to be taken following the outcome of a formal disciplinary inquiry into an employee’s behaviour;
• she was asked to be the delegate in relation to the Applicant’s disciplinary inquiry;
• on 11 October 2021, she received an email from the Applicant’s representative with his written response to the Notification of Disciplinary Inquiry Recommendation;
• she considered the contents of the disciplinary inquiry report, considered the Applicant’s response and ultimately made the decision to terminate the Applicant’s employment; and
• she arranged for a letter to be executed notifying the Applicant of the decision to terminate his employment.
[134] A letter entitled ‘Notification of Disciplinary Decision’ was attached to Ms Goodyear’s statement, which again restates the allegations set out in the Notification of Disciplinary Inquiry and Notification of Disciplinary Inquiry Recommendation, and communicates the decision to terminate the Applicant’s employment. Among those breaches found to have occurred are conduct that I have found occurred and which I have found constitute a valid reason for the dismissal, as outlined in paragraph [132] above.
Findings
[135] Having regard to the matters referred to above, I find that the Applicant was notified of the reason for his dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.
[136] In all the circumstances, I find that the Applicant was notified of the reason for his dismissal.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[137] 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. 93
[138] 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. 94 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.95
Submissions
[139] The Applicant submitted that this section is not relevant unless there was a valid reason for the dismissal. The Applicant also submitted that he was not provided with a reasonable opportunity to respond. 96
[140] The Respondent submitted that the Applicant did have an opportunity to respond to any valid reason related to the Applicant’s capacity or conduct because he was given ample opportunity to respond to the allegations against him in writing and during the meeting on 1 September 2021 and he declined a further opportunity to speak to Ms Goodyear. 97
Evidence
[141] The Respondent conducted a disciplinary process and as a part of that:
• Mr Reichel sent a Notification of Disciplinary Inquiry Recommendation to the Applicant by express post, the purpose of which was to notify the Applicant that it had been recommended to the relevant decision maker, Ms Goodyear, that his employment be terminated, invite the Applicant to provide a response to Ms Goodyear within five calendar days and advise him of his appeal rights. 98
• On 11 October 2021, Ms Goodyear received an email from the Applicant’s representative with his written response to the Notification of Disciplinary Inquiry Recommendation. 99
Findings
[142] In all the circumstances, I find that the Applicant was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[143] 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.
[144] 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.”100
Submissions
[145] The Applicant submitted that the Respondent refused to allow the Applicant a support person. 101
[146] The Respondent submitted that it did not unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal on the basis that:
• the Applicant was represented by a support person at the meeting on 1 September 2021;
• the Applicant was provided with a room at the Eastern Creek Facility in which he could attend the meeting via Webex because he advised that his home internet was not suitable;
• when his support person joined him in the same room, Mr Reichel conveyed his understanding that the support person was to join the Webex conference from another room due to COVID-19 restrictions; and
• the Applicant and his support person refused to separate and the meeting continued. 102
Evidence
[147] In a letter from the Applicant to Ms Goodyear dated 11 October 2021, the Applicant suggests that he is being singled out for punishment and states:
“For example, even on 1 September 2021 when I attended a meeting with Mr Reichel at the Eastern Creek office with my support person, Ian Walton, Mr Bucksath entered the room and claimed that Mr Walton had to leave the room. Both Mr Walton and I refused, as I had a right to a support person, and Mr Reichel later denied giving any such direction.
This means either Mr Reichel was lying, or Mr Bucksath was lying…”
[148] The Notice of Disciplinary Inquiry dated 26 August 2021 notified the Applicant of his right to bring a support person to the disciplinary inquiry interview.
[149] Mr Reichel gave evidence that:
• on 1 September 2021 he interviewed the Applicant and the Applicant had Mr Ian Walton there as a support person; 103 and
• he did not say that Mr Walton had to leave the room but had noted his understanding that due to COVID-19 safety measures there was an arrangement for the Applicant and Mr Walton to join by Webex from separate rooms and ultimately the Applicant and Mr Walton remained in the same room throughout the interview. 104
[150] Mr Bucksath’s evidence was that: 105
• he assisted by setting up computers in different meetings for the Applicant and his support person, Mr Walton, when he was interviewed as a part of the disciplinary inquiry; and
• he set the computers up in different rooms due to COVID-19 protocols and mistakenly told the Applicant this was at the inquiry officer’s (i.e. Mr Reichel’s) request which it was not.
Findings
[151] While I accept that there was discussion and potential confusion about the arrangements in which the Applicant’s support person was to be present during the meeting on 1 September 2021 and, in particular, whether the support person was to join the Applicant by way of Webex from a separate room or with the Applicant in person, the evidence does not establish that the Applicant was unreasonably refused a support person and he ultimately had Mr Walton there as a support person during the discussion.
[152] In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[153] The Applicant submitted, in addressing s.387(e) of the FW Act, that: 106
• there were no warnings;
• the Applicant had an exemplary record for the previous 32 years and this is a significant factor in determining whether the dismissal was harsh, unjust or unreasonable; and
• in all the circumstances a warning ought to have been given of the full extent of any disciplinary action.
[154] The Respondent submitted that the Applicant’s dismissal related to misconduct and not unsatisfactory performance and this factor is not relevant to this matter. 107
[155] I have earlier found that the Applicant was dismissed for misconduct in failing to comply with the Respondent’s lawful and reasonable directions. As the dismissal did not relate to unsatisfactory performance, the consideration in s.387(e) of the FW Act regarding whether the Applicant was warned about unsatisfactory performance before the dismissal is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise and/or the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[156] The Respondent did not contend that it was a small business or lacks human resources expertise. 108
[157] In addressing the considerations in ss.387(f) and (g) of the FW Act, the Applicant submitted that: 109
• employees who are about to lose their employment are entitled to expect a fair go regardless of the size of the employer’s undertaking or involvement of specialist human resources; and
• the manner in which the dismissal was affected was harsh and the Applicant was denied a fair go despite the size of the business and presence of human resource expertise.
[158] The Respondent is a large employer and it did not lack dedicated human resource management specialists and expertise. I consider this a neutral consideration.
What other matters are relevant?
[159] Section 387(h) of the FW Act requires the Commission to take into account any other matters that the Commission considers relevant.
Submissions
[160] In addressing this consideration, by way of summary, the Applicant submitted that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable:
• the Applicant has been treated in a “particularly shabby way” and has not been provided a fair go all round; 110 and
• dismissal, in all the circumstances, was a disproportionate response. 111
[161] The Respondent submitted that: 112
• there are no other factors sufficient to render the Applicant’s dismissal harsh, unjust or unreasonable;
• while the Applicant worked for the Respondent for some time, that is not sufficient to outweigh his blatant and persistent refusal to follow clear directions on multiple occasions; and
• the Applicant’s behaviour is particularly concerning given it was undertaken by a person of significant experience who was also a Health and Safety Representative.
[162] The Respondent also submitted that, in mitigation of the harshness of the dismissal, the Respondent provided the Applicant with payment in lieu of notice, despite its determination that he engaged in serious misconduct. 113
[163] An employee’s long and satisfactory work performance or history may be taken into consideration under s.387(h) of the FW Act and, depending on all the circumstances, may weigh in favour of a conclusion that the dismissal of the employee was harsh, unjust or unreasonable.114 It is not in contention that the Applicant is long serving and there are no suggestions that his work performance across his tenure was satisfactory. I have taken this into account, however this needs to weighed against the balance of the considerations that I am required to take into account under the FW Act and my earlier findings in relation to each of them.
[164] I have made findings in relation to each matter specified in s.387 of the FW Act as relevant.
[165] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 115
[166] After having been made aware that a complaint had been made against him, the Applicant returned to the JB Hi-Fi Store and engaged or sought to engage in conversations with JB Hi-Fi staff about the complaint, after he was told not to do so. The misconduct, in failing to comply with his employer’s reasonable and lawful directions, did not happen once but on multiple occasions. The Applicant was long serving and may have been upset to have been told about the complaint, given he had never had an issue with the customer in the years he had been picking up parcels from it and the customer did not raise it with him directly. However, in the circumstances of this matter, his actions could not be described as a single error of judgement in an otherwise unblemished career but rather a decision to embark on a deliberate course of action to return to the store and talk to the JB Hi-Fi staff about the complaint on multiple occasions when he had been told not to do so.
[167] The seriousness of the Applicant’s behaviour is further exacerbated in that, even when placed on suspension from duty pending the outcome of the disciplinary inquiry, he again returned to the JB Hi-Fi store and engaged in or sought to engage in discussions with JB Hi-Fi staff about the complaint. The Applicant’s actions in returning to the JB Hi-Fi store caused JB Hi-Fi to escalate the matter internally and follow up with the Respondent. The Applicant returned to the JB Hi-Fi Store again even though he was suspended from duty and put on notice that behaviour of this nature was already the subject of a disciplinary inquiry. During cross-examination, the Applicant indicated that in hindsight he probably should have done some things differently and not gone out on the road. 116 Had he arrived at this conclusion earlier and not engaged in the conduct that I have found to be a valid reason for the dismissal, the outcome may have been different for him however these are not the circumstances that transpired. Indeed, the Applicant was so resolute in his determination not to follow the lawful and reasonable directions of Mr Bucksath that even the threat of police notification if he drove the vehicle off the premises did not deter him from proceeding to do so.
[168] While the Applicant has a long tenure and satisfactory performance history across that tenure, this does not outweigh the Applicant’s misconduct in failing to comply with the reasonable and lawful directions of his employer on multiple occasions.
[169] In all the circumstances, I have formed the view that the decision to dismiss the Applicant was not a disproportionate one and, having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable.
[170] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act. The Applicant’s application is therefore dismissed.
COMMISSIONER
Appearances:
Mr G Dircks on behalf of the Applicant.
Mr W Spargo on behalf of the Respondent.
Hearing details:
2022.
Sydney (By Video using Microsoft Teams).
February 3, 4 and 10.
Printed by authority of the Commonwealth Government Printer
<PR743389>
1 Transcript of proceedings, 3 February 2022, PN271.
2 Warrell v Fair Work Australia [2013] FCA 291.
3 Ibid.
4 Transcript of proceedings, 3 February 2022, PN11-PN14.
5 Ibid, PN19-PN20.
6 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
7 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
8 Ibid.
9 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
10 Edwards v Justice Giudice [1999] FCA 1836, [7].
11 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
12 Applicant, ‘Outline of Submissions’, filed 23 December 2021, [49].
13 Ibid, [41].
14 Ibid, [49], with reference to Jobson v Gerrard Strapping Systems [1999] Print 6151.
15 Ibid, [10].
16 Ibid, [11]; Applicant, ‘Witness Statement of Paul Kallipolitis’, dated 23 December 2021, [12].
17 Applicant, ‘Outline of Submissions’, filed 23 December 2021, [12].
18 Ibid; Applicant, ‘Witness Statement of Paul Kallipolitis’, dated 23 December 2021, [17].
19 Applicant, ‘Outline of Submissions’, filed 23 December 2021, [13].
20 Ibid, [14]-[15].
22 Applicant, ‘Outline of Submissions’, filed 23 December 2021, [18].
23 Ibid, [19].
24 Ibid.
25 Applicant, ‘Witness Statement of Paul Kallipolitis’, dated 23 December 2021, [15]-[18].
26 Applicant, ‘Outline of Submissions’, filed 23 December 2021, [20].
27 Ibid, [21].
28 Ibid, [23]-[34].
29 Ibid, [34].
30 Ibid; Applicant, ‘Witness Statement of Paul Kallipolitis’, dated 23 December 2021, [37].
31 Applicant, ‘Outline of Submissions’, filed 23 December 2021, [37].
32 Ibid, [40].
33 Ibid, [43]-[52].
34 Respondent, ‘Outline of Submissions’, filed 20 January 2022, [46]-[53].
35 Respondent, ‘Witness Statement of Benjamin Bucksath’, dated 19 January 2022, [3], [5].
36 Ibid, [17].
37 Respondent, ‘Witness Statement of Jayme Hale’, dated 19 January 2022, [12]-[14].
38 Respondent, ‘Witness Statement of Christopher Smedley’, dated 20 January 2022, [14]-[20].
39 Applicant, ‘Witness Statement of Paul Kallipolitis’, dated 23 December 2021, [12].
40 Respondent, ‘Witness Statement of Benjamin Bucksath’, dated 19 January 2022, [19].
41 Ibid, [20]-[21].
42 Applicant, ‘Witness Statement of Paul Kallipolitis’, dated 23 December 2021, [6], [9], [24]-[31]; Applicant, ‘Further Statement of Paul Kallipolitis’, dated 28 January 2022, [54]-[55].
43 Transcript of proceedings, 3 February 2022, PN313-PN316.
44 Respondent, ‘Witness Statement of Benjamin Bucksath’, dated 19 January 2022, [24]-[27].
45 Ibid, [29].
46 Respondent, ‘Witness Statement of Christopher Smedley’, dated 20 January 2022, [22].
47 Ibid, [23].
48 Applicant, ‘Witness Statement of Paul Kallipolitis’, dated 23 December 2021, [32]-[36].
49 Transcript of proceedings, 3 February 2022, PN338-PN339.
50 Ibid, PN410.
51 Respondent, ‘Witness Statement of Benjamin Bucksath’, dated 19 January 2022, [32]-[33].
52 Ibid, [34]-[36].
53 Respondent, ‘Witness Statement of Linda Patterson’, dated 19 January 2022, [14]-[18].
54 Transcript of proceedings, 3 February 2022, PN440.
55 Ibid, PN450-PN469.
56 Respondent, ‘Witness Statement of Benjamin Bucksath’, dated 19 January 2022, [37]-[51].
57 Applicant, Witness Statement of Paul Kallipolitis, dated 23 December 2021, [37], [39].
58 Transcript of proceedings, 3 February 2022, PN485-PN490.
59 Ibid, PN491-PN492.
60 Ibid, PN494-PN500.
61 Applicant, ‘Witness Statement of Shawn Taylor’, dated 23 December 2021, [3]-[5].
62 Respondent, ‘Witness Statement of Kina Malaitai’, dated 20 January 2022, [28]-[36].
63 Applicant, ‘Witness Statement of Paul Kallipolitis’, dated 23 December 2021, [40]-[48].
64 Respondent, ‘Witness Statement of Allen Britten’, dated 19 January 2022, [17]-[35].
65 Applicant, Witness Statement of Paul Kallipolitis’, dated 23 December 2021, [54]-[55].
66 Edwards v Justice Giudice [1999] FCA 1836, [7].
67 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
68 Concut Pty Ltd v Worrell (2000) 75 ALJR 312 at 317, [23].
69 (1938) 60 CLR 601.
70 [2018] FCAFC 77; (2018) 262 FCR 527; (2018) 277 IR 23, [187].
71 (1938) 60 CLR 601, 621–2.
72 Price v Mouat (1862) 11 CBNS 508; 142 ER 895 (employee hired as lace buyer not bound to obey orders to perform work of lace carder); Bampton v Viterra Ltd (2015) 123 SASR 80; 251 IR 261; [2015] SASCFC 87; BC201505246; Mackie v Wienholt (1880) 5 QSCR 211 (cook not bound to obey order to work in dairy); McCarthy v Windeyer (1925) 26 SR (NSW) 29; 42 WN (NSW) 175 (sub-editor not bound to obey orders to do work of a lower grade); Truth & Sportsman Ltd v Moldsworth [1956] AR (NSW) 924 (B-grade journalist not bound to obey order to work at a lower grade); Commissioner for Government Transport v Royall (1966) 116 CLR 314; [1967] ALR 313 (employee incapacitated by injury and entitled to salary during the period of incapacity does not lose the right to receive salary because of his refusal to perform duties within his residual capacity but not within the duties of his pre-injury classification). See also Hackshall’s Ltd v McDowell [1930] AR (NSW) 620 (where the court had to consider whether an order to a bread cart deliverer to work outside the normal area was outside the scope of the contract).
73 Such as to work reasonable overtime: Anthony v NSW Fresh Food & Ice Co Ltd [1946] AR (NSW) 64 (the determination of ‘reasonable overtime’ was to be made by reference to the particular industry).
74 Turner v Mason (1845) 14 M & W 112 at 118; 153 ER 411 per Alderson and Rolfe B; Bouzourou v Ottoman Bank [1930] AC 271, PC; Ottoman Bank v Chakharian [1930] AC 277; (1929) 99 LJPC 97; 142 LT 465, PC; Robson v Sykes [1938] 2 All ER 612, KB; Re Dismissal of Fitters by BHP 1969 AR (NSW) 399.
75 McDonald v Moller Line (UK) Ltd [1953] 2 Lloyd’s Rep 662.
76 Kelly v Alford [1988] 1 Qd R 404; Gregory v Ford (1951) 1 All E.R. 121, see also Morrish v Henlys (Folkestone) Ltd [1973] 2 All E.R. 137.
77 R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601, 616 (Starke J), 623-624 (McTiernan J); NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883, [208], [214] (Flick J).
78 Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159, [423]-[429].
79 (1938) 60 CLR 601, 622. See also NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883, [217] (Flick J).
80 Briggs v AWH [2013] FWCFB 3316.
81 Izdes v L.G. Bennett & Co Pty Ltd t/as Alba Industries [1995] IRCA 499.
82 Hussein v Westpac Banking Corporation (1995) 59 IR 103.
83 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
84 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
85 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
86 Ibid.
87 Applicant, ‘Outline of Submissions’, filed 23 December 2021, [53].
88 Ibid, [56].
89 Respondent, ‘Outline of Submissions’, filed 20 January 2022, [54].
90 Respondent, ‘Witness Statement of Tim Reichel’, dated 19 January 2022, [13]-[26].
91 Ibid, [23]-[26].
92 Respondent, ‘Witness Statement of Helen Goodyear’, dated 19 January 2022, [6], [10], [14]-[21].
93 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
94 RMIT v Asher (2010) 194 IR 1, 14-15.
95 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
96 Applicant, ‘Outline of Submissions’, filed 23 December 2021, [57]-[60].
97 Respondent, ‘Outline of Submissions’, filed 20 January 2022, [55].
98 Respondent, ‘Witness Statement of Tim Reichel’, dated 19 January 2022, [27].
99 Respondent, ‘Witness Statement of Helen Goodyear’, dated 19 January 2022, [14].
100 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
101 Applicant, ‘Outline of Submissions’, filed 23 December 2021, [61].
102 Respondent, ‘Outline of Submissions’, filed 20 January 2022, [56].
103 Respondent, ‘Witness Statement of Tim Reichel’, dated 19 January 2022, [17].
104 Ibid, [32].
105 Respondent, ‘Witness Statement of Benjamin Bucksath’, dated 19 January 2022, [59].
106 Applicant, ‘Outline of Submissions’, filed 23 December 2021, [62]-[63].
107 Respondent, ‘Outline of Submissions’, filed 20 January 2022, [57].
108 Ibid, [58].
109 Applicant, ‘Outline of Submissions’, filed 23 December 2021, [64]-[65].
110 Ibid, [68]-[69].
111 Ibid [70]-[81].
112 Respondent, ‘Outline of Submissions’, filed 20 January 2022, [59]-[60].
113 Ibid, [61].
114 Telstra Corporation v Streeter [2008] AIRCFB 15, [27].
115 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].
116 Transcript of proceedings, 3 February 2022, PN459.