Fair Work Act 2009
s.394—Unfair dismissal

Conrad John Corry
v
Australian Council of Trade Unions T/A ACTU
(U2021/9032)

Application for an unfair dismissal remedy – termination not harsh, unjust or unreasonable – application dismissed.

[1] On 8 October 2021, Mr Conrad John Corry (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with the Australian Council of Trade Unions (the ACTU) on 22 September 2021 was unfair.

[2] Conciliation of the matter before the Commission was unsuccessful and the matter was listed for Hearing/Conference before me in respect of the merits on 27 and 28 January 2022. Both parties filed material in advance of the hearing in accordance with the directions issued.

[3] At a Mention/Directions Hearing conducted on 8 December 2021, and after hearing from the parties, it was determined that the matter would be conducted by way of a hearing pursuant to s.399 of the Act.

[4] At the hearing, the Applicant was self-represented and gave evidence himself. The ACTU was represented by Mr Sunil Kemppi, Legal and Industrial Officer of the ACTU. The following witnesses were called by the ACTU:

•  Alex White – ACTU Director of Growth

•  Sarah Mitchell – ACTU General Manager

Background and evidence

The ACTU

[5] The ACTU is the peak body for Australian unions, is made up of 38 affiliated unions (including the CFMMEU and Police unions) and represents approximately 1.8 million workers and their families 1. The values of the ACTU are said to include;

•  solidarity (we support and include each other);

•  respect (we have regard for the rights, backgrounds and diversity of workers);

•  equality (everyone should be treated fairly without facing discrimination); and,

•  democracy (we believe workers should be included in the decisions that affect them). 2

[6] Alex White says that the ACTU and its affiliate unions are made up of a diverse range of people from different backgrounds and identities including with respect to age, culture, linguistic diversity, gender identity, sexuality and LGBTQIA+ status 3. He further states that the ACTU aims to be inclusive of workers’ diversity and adopts and promotes public positions in support of equality and respect for working people from diverse backgrounds and demographics including;

•  supporting LGBTQIA+ people over many years including with respect to marriage equality and campaigning against homophobia, biphobia, transphobia and intersexism 4;

•  supporting justice for First Nations People 5;

•  campaigning for the elimination of gendered violence at work and in the community 6; and

•  supporting people of colour, and culturally linguistically diverse (CALD) workers. 7

[7] In response to questioning from the Applicant, Alex White confirmed that the ACTU’s diversity values extended to “straight white males” and the fact that the Applicant may have voted “no” in the gay marriage plebiscite did not offend those values.

[8] One of the most significant issues of public policy over the last two years has been that of federal and state government responses to the Covid-19 pandemic, including the issue of mandatory vaccination. The ACTU policy on vaccination, as understood by Alex White, was said to be as follows;

a. The ACTU supports and encourages all workers being vaccinated, as a fundamental matter of workplace and community health and safety.

b. The ACTU does not support individual employers having the power to compel workers to be vaccinated as a condition of employment, excepting where:

i. there is a clear public health order or requirement (for example, meat workers are required by law to be tested and vaccinated against Q Fever); or

ii. the requirement for a particular workforce to be vaccinated follows from an assessment of work health and safety risks and is the product of genuine and meaningful consultation with the relevant workers and their representatives (including Health and Safety Representatives and unions). 8

[9] With respect to broader issues relating to Covid-19, the ACTU’s public position is understood by Alex White to include that;

•  Covid-19 is a serious disease and public health measures are necessary;

•  Covid-19 is a serious workplace health and safety issue;

•  restrictions imposed by state governments have been necessary to control the spread of Covid-19;

•  vaccination is one of several critical measures;

•  a substantial contributor to the Covid-19 pandemic having such widespread effect throughout 2021 was the federal government’s failure to deliver on vaccination timeframes; and

•  a range of other measures are also critical to managing the Covid-19 pandemic including; social distancing, mask wearing, paid pandemic and vaccination leave and wage subsidies. 9

[10] The ACTU has also publicly responded to the anti-lockdown and vaccination mandate protests held around the country and in particular the violent protests that occurred in Melbourne on and from 20 September 2021, including an interview with the Secretary of the ACTU on the 7.30 Report on the evening of 20 September 2021 10. In publicly commenting on the protests, the Secretary of the ACTU condemned the violence, attributed the protests to far-right extremist influences and continued to encourage vaccination and support for advice of public health experts11.

[11] The Applicant confirmed that meetings, to which he attended, were held with staff on a weekly basis at which the ACTU’s public position on various matters and campaigns were communicated to staff. He also agreed that ACTU media statements were sent to all staff. The Applicant also confirmed that he was aware of the ACTU position on a range of progressive social and workplace issues including LGBTQIA+, domestic violence measures including paid leave, anti-racism campaigns and support for indigenous Australian rights.

[12] This above-referred communication with staff also included the ACTU’s position on Covid-19 pandemic measures which included support for government vaccination mandates and opposition to company imposed vaccination mandates implemented without genuine consultation. The Applicant conceded that it was fair to say that he disagreed with the ACTU’s public position on Covid-19 pandemic restrictions and vaccination mandates.

[13] Alex White states that research undertaken by the ACTU, including extensive polling of member views/beliefs, reveals that the largest primary motivator for new members joining via the ACTU’s centralised online membership clearing house is that of ‘shared values’ 12. Central to attracting and retaining members has been the expansion of the Australia Unions brand into which the ACTU has invested heavily. According to Alex White, reputation and credibility has been identified through the ACTU’s research as a key to potential members deciding to join a union.

[14] Trust and credibility are said, by Alex White, to relate to people’s perceptions that an organisation is willing to carry through on promises it makes, specifically in relation to its values 13. The reputation and credibility of the ACTU can be negatively impacted when it says one thing (e.g. supporting LGBTQIA+ workers) and acts inconsistently with its espoused values or public position14.

[15] In response to questions from the Applicant, Alex White stated that he was unaware of how many followers there were of the ACTU’s Facebook account or on its Instagram account. As regards email subscribers to the ACTU, he stated that at the time of the Applicant’s dismissal there were approximately 360,000 subscribers, which had now risen to 450,000 subscribers.

The Applicant’s employment with the ACTU

[16] The Applicant was offered a role with the ACTU in a letter dated 20 May 2015 (the Letter of Employment). He accepted the offer and commenced employment on 15 June 2015 as a Level 2 Band 3 Inbound Organiser on a salary of $57,226 with working hours of 0.6 of a full time equivalent (FTE) employee 15. His conditions of employment as a Level 2 Band 3 employee were stated to be set out in the ACTU Staff Agreement. His hours of work were increased to full-time on 15 May 2017 with all other conditions of employment remaining as set out in the ACTU Staff Agreement16. At the time of his dismissal, he was classified at Level 3 under the ACTU Staff Agreement 2018-2021 (2018 Agreement). The Applicant was also a workplace delegate at the time of his dismissal.

[17] As an Inbound Organiser, the Applicant’s duties included;

•  responding to in-bound phone calls from workers with inquiries about their rights at work;

•  assisting workers inquiring about joining a union, and liaising with relevant affiliates on a daily or weekly basis to assist workers’ membership applications; and

•  making outbound calls to people who had made larger donations to the ACTU and the union movement. 17

[18] The Applicant reported to the Support Centre Lead Organiser Alexandra Manning, who in turn reported to Alex White. Mr White commenced employment with the ACTU in April 2020 and has 30 employees who report to him directly and indirectly.

[19] At the time of his dismissal, the Applicant was covered by the unregistered 2018 Agreement 18 which was replaced on 16 November 2021 by the unregistered ACTU Staff Agreement 2021-202419 (the 2021 Agreement). The Applicant was a delegate prior to and at the time of his dismissal and was involved in the negotiation of the 2021 Agreement which took place between April and October 202120.

[20] The classification definition for a Level 3 employee under the 2018 Agreement relevantly required that an employee at that level have “Advanced knowledge of the ACTU, capacity to contribute to administrative and organisational policies and procedures, exercises discretion”. A Level 3 employee was also required to hold skills required at Levels 1 and 2 which relevantly included “well developed knowledge of the organisation” and “follows organisational policies and procedures”. The Applicant acknowledged his awareness of the described role requirements although he stated that he did not have an “acute awareness” of the Organisational and Professional Knowledge requirements of Level 3. While accepting that as a Level 3 he would be required to hold the skills and knowledge of Levels 1 and 2 and provide support and mentoring to employees at those levels, he resisted the proposition that he was a ‘senior employee’ in the Contact Centre.

[21] Alex White states that he had limited direct interaction with the Applicant and where he did, such interaction related to outbound calls to donors. He described the Applicant’s employment with the ACTU as ‘unremarkable’ in that the Applicant was neither underperforming or to his knowledge, performing exceptionally well.

[22] The Applicant claims that he was subject to a campaign of harassment, bullying and discrimination by Alex White and other leaders of the ACTU over a number of years. The incidents that he claims are evidence of this campaign are set out below.

[23] The Applicant received a warning letter dated 8 March 2018 21 (the 2018 Warning) from the ACTU’s then Chief of Staff concerning various disrespectful communication between the Applicant and other staff of the ACTU. He was advised in the 2018 Warning that further misconduct may result in his termination. The Applicant states that the 2018 Warning arose out of his response to the proposed redundancy of contact centre staff in January 2018, a decision he says was subsequently reversed by ACTU management22.

[24] The Applicant states that he applied in late 2017, pursuant to professional development entitlements under the then ACTU Staff Agreement, to undertake a graduate diploma in employment law at Melbourne University. His application was declined and in a response dated 8 Feb 2018 from Paul Inkster (the then Contact Centre Manager) the Applicant was advised that “Employment law units target a level of knowledge that is far greater than the contact centre roles require” 23. The Applicant claimed that the nature of his role required him to provide general and specific employment law advice such that further study would have aided him in that role24.

[25] The Applicant claims that the rejection of his application for study assistance was contrary to the term of the ACTU Staff Agreement and was in response to his opposition to the proposed redundancies in the Contact Centre. This he says can be seen in the response from Paul Inkster on 8 February 2018 where he says;

“Lastly, the ACTU supports study opportunities where the individual concerned is supporting the organisations strategic direction and values, and exhibits a set of behaviours that illustrates same. In your case Conrad you have, until recently, refused to consider reasonable changes in the work environment and you have sent a range of emails to management, elements of which are totally unacceptable and I will be discussing the latter with you, formally, and separate to this email very soon.” 25

[26] The Applicant also refers to a claim he initiated as an ASU delegate on behalf of casual employees in 2018 in respect of ‘tea money’. He states that the claim was “resisted for years” and was also declined by Alex White on his commencement in 2020. The Applicant states that in late 2021 the claim is now being addressed 26.

[27] The Applicant also refers to a Slack post exchange involving Alex White, himself and three other staff on 11 May 2021 in relation to a question from Alex White as to whether there were any “bird fans/twitchers on this channel” 27. At the conclusion of the exchange Alex White thanked the three other staff for their contribution to his post but did not refer to the Applicant despite the Applicant having offered a response to the initial question posed. Alex White attributed this to a simple oversight on his part.

[28] The Applicant claims that he was subject to discrimination in respect of a medical exemption he had from wearing a face mask. He says he was approached by a health and safety representative on or about 5 July 2021 over his not wearing a face mask in the office, that direction having been communicated previously to staff. The Applicant subsequently responded to all staff on level 5 in an email sent on 5 July 2021 advising that he had a medical exemption from wearing a face mask and that he would take all reasonable precautions to manage the risk 28. Alex White confirmed during cross-examination that he was unaware of the Applicant’s medical exemption prior to his non-wearing of a mask being raised with him.

[29] The Applicant received a further warning dated 9 August 2021 29 (the 2021 Warning) for failing to remove inappropriate posters/images (as directed by Alex White on 5 August 2021), from his work station which was located immediately adjacent to one of the main doors from the open plan office into the kitchen30. The materials included;

•  a poster of Conan the Barbarian, which included sexualised depictions of semi-naked women;

•  black and white photos of a naked/topless woman; and

•  a photo of a statue of a topless woman. 31

[30] The 2021 Warning was described as a ‘final warning letter regarding this or any future unacceptable conduct’ and stated that the inappropriate material was to be removed by 5pm 13 August 2021, failing which the Applicant may be liable to termination of employment. The Applicant challenged the 2021 Warning on various grounds in a reply sent to Alex White on 11 August 2021 32. Those grounds of objection to the 2021 Warning include that the ‘offending’ material was ‘classic and renaissance inspired art’ that had been at his work station since he started with the ACTU in 2015. The Applicant also states that there was no genuine discussion with Alex White as to there being a credible alternative interpretation of the material, other than it being inappropriate33. Further, the materials had ‘deep political, cultural, spiritual and aesthetic importance’ to the Applicant.

[31] The Applicant also sought to escalate the matter in accordance with the dispute resolution procedure of the 2018 Agreement. He also claimed in his response to the 2021 Warning that he was unable to comply with the deadline for the removal of the materials from his desk by reason of the state-wide Covid-19 lockdown imposed by the state government. Alex White responded to the latter concern and advised that the materials would need to be removed by ‘5pm on the first working day after the Victorian lockdown is lifted’ 34.

[32] In relation to the 2021 Warning, Alex White gave the following evidence during cross-examination;

•  he could not recall at what time on 5 August 2021 he came past the Applicant’s desk and viewed the materials;

•  the materials on the Applicant’s desk had not provoked a complaint from any other employees, however in his role as a Manager it was within his authority to assess whether the displayed materials were inappropriate;

•  the conversation he held with the Applicant on 5 August 2021 was late in the afternoon, was short, did not invite an explanation from the Applicant but involved a direction to the Applicant to remove the materials;

•  in issuing the direction to the Applicant, Alex White did not provide an itemised list of the items to be removed, but felt the direction was sufficiently clear to enable the Applicant to comply;

•  his view of the inappropriateness of the material was informed by his experience as a manager in different organisations;

•  when the warning was issued on 9 August 2021 requiring removal of the remaining material by the close of business on 13 August 2021, that deadline was provided in the expectation that the 7-day lockdown implemented on 5 August 2021 would end at 11.59pm on 12 August 2021;

•  as the 7-day lockdown was subsequently extended beyond 12 August 2021, it was necessary to revise the removal timeframe to the first working day following the end of the lockdown; and

•  in respect of the Applicant’s lengthy response to the warning, Alex White stated that he read the response but regarded the matter as closed given the Applicant had removed the remaining material when he returned to the office after the August 2021 lockdown ended.

[33] The Applicant further states that during mid 2021 he raised concerns with his immediate manager Alex Manning and Alex White as to how the ACTU would advocate for and support employees who were at risk of either losing or had lost their jobs due to their refusal to be vaccinated against Covid-19. He claims he was subsequently directed to provide unreasonable and/or unlawful advice to workers who may have held genuine concerns regarding vaccination. He points to an exchange between himself and Alex White where in response to the Applicant raising the matter Alex White responded as follows;

“For workers who are vaccine hesitant we should encourage them to be vaccinated, especially if they are in a high-risk workplace like health care. As with our ongoing guidance……should be encouraged to talk with her union on the specifics.” 35

ACTU policies

[34] The Applicant’s Letter of Employment dealt with his commencing salary, hours of work and relevantly stated in respect of all other conditions of employment that;

“……

All other conditions of employment are set out in the ACTU Staff Agreement, a soft copy is attached to this email.

……..” 36

[35] The 2018 Agreement (and the 2021 Agreement) which are successor agreements to the agreement referred to the Applicants Letter of Employment both include a provision at clause 5 titled Relationship to Award and ACTU Policies. Clause 5 of the 2018 Agreement relevantly states as follows;

“5.2 The Agreement shall be read in conjunction with the policies. ACTU policies may be developed and amended during the life of this agreement with the agreement of the Consultative Committee.” 37

[36] Several policies form attachments to both agreements. The ACTU currently have a number of policies that are said to apply to its staff including;

•  ACTU Code of Conduct (September 2021) 38;

•  ACTU Complaints & Investigation Policy (September 2021) 39;

•  ACTU Gendered Violence and Harassment Policy (September 2021) 40;

•  ACTU Workplace Harassment, Discrimination and Workplace Bullying Policy (September 2021) 41; and

•  ACTU Social Media Policy (October 2021) 42.

[37] Attachment B to the 2018 Agreement is that of the ACTU Policy and Procedure: Harassment, Discrimination and Workplace Bullying Policy. The policy relevantly identifies the ACTU values of “respect, inclusion and equality.”

[38] According to Sarah Mitchell, the above-referred policies set out at [36] were the subject of consultation with staff, involving circulation to staff in September 2021 for comment and feedback, and were then adopted on 30 November 2021 at a Consultative Committee meeting attended by staff representatives/delegates and ACTU leadership 43. Ms Mitchell does however concede that the policies set out above at [36] did not apply to the Applicant at the time of his dismissal.

[39] Prior to the Applicant’s dismissal the following policies were in place;

ACTU Code of Conduct (former) 44;

Harassment, Discrimination & Workplace Bullying (June 2016) 45; and

Social Media Policy (June 2016) 46.

[40] An email was sent to all ACTU staff by the then ACTU Chief of Staff, on 20 December 2016 47 regarding training undertaken by staff in relation to ACTU Governance and Training Sessions. Employees were asked to click on a link in the email confirming that they had read and understood the ACTU Code of Conduct and a number of policies including;

“

……

1.6 Gifts and Donations
1.7 Fraud & Corruption
1.8 Material Interests and Conflict of Interest
1.11 Harassment, Discrimination and Bullying
3.4 Use of Email, Internet and Social Media
4.1 Use of Credit Cards

…………….”

[41] The former ACTU Code of Conduct identified the underpinning principles of integrity, respect and accountability. In terms of integrity, staff were required to conduct themselves “in public in a manner that will not reflect adversely on the ACTU” 48. Under the heading of respect, the former ACTU Code of Conduct relevantly required staff to;

•  treat other employees and the general public with respect and courtesy, having regard for the dignity of the people with whom you interact;

•  recognise the importance of people through training and ongoing development;

•  promote equity, and value and utilise diversity in the work environment and in the broader community;

•  prevent unlawful or unjustifiable discrimination against employees or persons seeking employment at the ACTU;

•  take reasonable care to ensure your own health and safety at work and avoid adversely affecting the health and safety of others; and

•  prevent bullying or other forms of harassment in or outside the workplace 49.

[42] The 2018 Warning received by the Applicant specifically referred to the Code of Conduct where it stated as follows;

“…………..

I expect your conduct to improve and specifically that your communication with colleagues will be, at all times, respectful and courteous, that you cease making threats, and adhere to the values and behaviours expected of ACTU employees as outlined in the code of conduct.

…………” 50

[43] The ACTU’s Social Media Policy (June 2016) relevantly stated as follows;

“Introduction

This policy provides guidance for work-related and personal use of ACTU internet, email and social media.

This policy applies to all officers, staff and other authorised users of ACTU computers, mobile devices and networked facilities and services.

…………………..

Reasonable Personal Use

…………………

When using Internet, Email and Social Media, officers, staff and other authorised users should not criticise or insult the ACTU, its affiliates or contribute content that may bring the ACTU into disrepute.

If staff identify themselves in their personal social media accounts (such as Facebook) as being employed by the ACTU, they should make it clear in that account that all views expressed are personal and not those of the ACTU.

……………..”

[44] Alex White states that as part of its commitment to supporting women and diversity at work, mandatory training of staff was held in 2021 in ‘Ethical Bystander Intervention’ and ‘Responding with Compassion – general awareness program’ 51. The focus of the training was to “assist staff to recognise and appropriately respond to domestic violence and sexual harassment at work”52. According to Alex White, the training included “how to recognise inappropriate derogatory language and harassing behaviours that normalise violence”53. It is not in dispute that the Applicant attended the training on 18 May 2021 along with other staff54.

[45] The Applicant challenged the application of the above-referred policies. He refers to the requirement in the 2018 Agreement at clause 5.2 that any policies developed and/or varied were subject to agreement of the Consultative Committee and questioned whether such consultation and agreement had occurred in respect of the policies referred to above at [39]. The Applicant further claims that he had “never been shown or told about policies that would subordinate the self-expression of ACTU staff to be in lock-step with any arbitrary cultural fetishes and political whims of the ACTU Leadership…” 55 He also claims that his right to express his personal opinions is protected by the Victorian Charter of Human Rights and Responsibilities Act 2006 (the Victorian Charter of Human Rights).

Applicant’s social media posts

[46] On or about midday on 21 September 2021 Alex White was emailed a screenshot of a Slack post made by the Applicant which he viewed at approximately 1.30pm that day. Slack is an internal messaging platform used by ACTU staff members to communicate with each other. The Slack ‘channel’ on which the Applicant posted the message was an open channel and visible to all staff. The context in which the Slack post occurred was that of a violent protest that took place outside the CFMMEU’s Victorian construction division’s office in the Melbourne CBD on the previous day (20 September 2021) following the state government’s announcement of a mandatory Covid-19 vaccination requirement for the construction industry. The Applicant’s post (the 21 September Slack Post) related to a further protest on 21 September 2021 and stated as follows;

“my sources on the ground tell me that there must be a few thousand CFMEU members chanting F Dan Andrews and F The Jab heading towards Spring St

They’re obviously not ‘far right’ or Neo-Nootsis (whatever that means), prepare for some calls though!” 56

[47] The Applicant’s immediate manager Alexandra Manning raised concern with the Applicant regarding the 21 September Slack Post, following which the Applicant deleted the post as requested. The Applicant rejected the proposition that the post was contrary to the ACTU’s public position. He noted it was an internal communication, was intended to provide information to his colleagues regarding developments with that day’s protest and he disagreed with the narrative that had emerged in the wake of the violent protest on the 20 September 2021, that being the crowd was full of right-wing extremists.

[48] Alex White was concerned at the content of the 21 September Slack Post, specifically in relation to the second sentence. He stated that the comment that the crowd was not far right or neo Nazis was in direct contradiction to the ACTU narrative on the protest, that being, the protests were being orchestrated by right wing extremists. He confirmed that his view on the role of right-wing extremists was informed by his firsthand observation of the protests and his having identified certain persons who he knew to be active right-wing extremists.

[49] The Applicant challenged the contention that his post was in any way offensive and referred to other posts made by colleagues that he says were clearly disrespectful towards the views of workers and which had no repercussions for those staff. He refers to posts referring to vaccine hesitant workers in disparaging terms including references to “tin foil hat stuff” 57 and “anti-vax cranks”58. He also points to a post by a colleague in which they stated “Stick dem needles in dem babies”59. Alex White confirmed during cross examination that he was unaware of some of the Slack messages referred to by the Applicant and that he had previously disciplined other employees over content of Slack posts.

[50] Because of the Applicants 21 September Slack Post, Alex White decided to review the Applicant’s social media posts which were able to be viewed on the Applicant’s public personal Facebook account. On viewing the Applicant’s Facebook posts, Alex White was concerned that a number of posts were variously offensive and derogatory, or potentially constituted harassment and/or a risk to health and safety, or had the potential to bring the ACTU into disrepute. The various Facebook posts are set out below.

[51] At approximately 1.09pm on 20 September 2021 the Applicant posted a photo of the demonstration that was then underway outside the CFMMEU office with the comment;

“Fuck the jab’ good lads!” (the Fuck the Jab Post) 60

[52] The Applicant states that at the time he made the Fuck the Jab Post on 20 September 2021, he believed the demonstration was a grass roots CFMMEU campaign (with support of CFMMEU officials) against the mandatory vaccination mandate announced by the Victorian state government to apply in the construction industry.

[53] The Applicant agreed during cross-examination that at the time of posting the comment he knew the ACTU’s public policy position was to support mandatory vaccination where deemed necessary by public health experts. He further states that he does not believe the post was inconsistent with that public position. He explained that when he became aware of the violence that had occurred at the 20 September 2021 protest and the position of both the CFMMEU and ACTU, which both came out and condemned the violent protest on 20 September 2021, he later removed the post from his Facebook page on the evening of 21 September 2021.

[54] It is noted that in response to the protests outside the CFMMEU offices on 20 September 2021, Sally McManus (the Secretary of the ACTU) issued a press releasee on 20 September 2021 and appeared on the 7.30 Report television program that evening. In doing so, she condemned the violent protest, expressed support for the advice of public health experts and mandatory vaccination if deemed necessary by such experts 61. Further press releases were issued by the ACTU and CFMMEU over ensuing days condemning the violent anti-lockdown and anti-vaccine mandate protests occurring in Melbourne62.

[55] At 10.24am on 19 September 2021 the Applicant made the following Facebook post (the Rights Post);

“Rights are what you’re collectively able to enforce and protect I have the right and reserve the rights to party with my friends and wake up in the swag *searches for state government approved reasons*

“I was fleeing domestic violence so I could attend the Blag Lives Natter meeting and it was all gay people and rainbow flags there and we discussed getting drag queen story hour into primary schools ahhhhh your honour…shiiiiiieeeeeeeeet NIBBA

(Don’t be afraid to use globo homo Big Lies against them..)” 63

[56] The Applicant defended the Rights Post and did not accept that the themes of domestic violence, racism and homosexuality which he claimed to have been satirising in the post could be seen as offensive. He resisted the proposition that the term “NIBBA” was considered an offensive term commonly used to describe persons of dark skin colour and claimed it was a term of endearment used in urban culture. As regards the term “globo homo,” he states that in using the term he was referring to global homogenisation and consumer culture, that the meaning of the term was contested 64, and that his use of the term was neither homophobic nor antisemitic as put to him during the disciplinary process. The Applicant also rejected the proposition put to him that the first paragraph of the post indicated that he ignored or encouraged the flouting of pandemic lockdown restrictions.

[57] At 8.50am on 20 September 2021 the Applicant made the following Facebook post which included a link to a video clip of a police officer being assaulted during a protest (the Police Assault Post);

“A hero has emerged! Bad music but beautiful clip, I do enjoy Bolsheviks whether urban cops or other types get taken out, even if only for a moment….” 65

[58] The Applicant claimed that the Police Assault Post was a satirical characterisation of a violent incident involving a police officer and members of the public and was made as a critique of government “overreach” during the Covid-19 pandemic 66. He accepted that a member of the public was captured on the video assaulting a police officer but that the action was in response to police violence and that the police officer “got as good as he gave.” He denied that the post could be seen as encouraging violence towards law enforcement officers.

[59] At 11.51am on 17 September 2021 the Applicant made a Facebook post in conjunction with posting a photo relating to the Met Gala 2021 (the Met Gala Post). His post stated as follows;

“This Met Gala was a truly horrifying exhibition of the hideous, the synthetic, and other elements of what makes the GloboH system so ugly and unappealing to healthy (normal) people, truly a spectacle of the grotesque…. truly demonic energy requiring a flaming sword/righteous Hammer to exterminate…” 67

[60] The Applicant described the Met Gala Post as directed towards the Met Gala spectacle which he saw as a “Global Liberal Capitalism humiliation ritual…” 68. He opined that that the “ACTU was against excessive wealth wastage in a time of wealth inequality”69 which was an issue his Met Gala post sought to raise. As regards the “flaming sword/righteous hammer to exterminate” phrase, he defended the term as symbolic, metaphorical, and religious and was not intended to promote violence against any groups or individuals70. He referred to posts of senior employees of the ACTU where similar metaphors had been used71 and pointed to the common phrase “eat the rich” used by left wing activists which he contended could not be seriously said to encourage cannibalism.

[61] At 10.31am on 14 September 2021 the Applicant made a Facebook post which included a cartoon and photo of two women wrestling (the Trans Gender Post), which stated as follows;

“there is something quite demonic going on with all this Trans stuff…the ritual humiliations of having it in public, the ritual sacrifice of body parts (mainly genitals), the indoctrination of children and all the other general ugliness of it…” 72

[62] The Applicant claimed in defence of the Trans Gender Post that it was not directed towards any individuals and referred to what he described as a worldwide trans-gender strategy pushed by government, global corporations and non-government organisation (NGOs) to harm children 73. He stated during cross-examination that he did not believe that trans-gender females should be allowed to compete in sporting contests. The Applicant also referred in his evidence to the link between trans-gender lifestyle promotion and paedophilia74.

[63] 0n 2 September 2020 the Applicant posted on Facebook a photo of Kyle Rittenhouse carrying a semi-automatic machine gun. Kyle Rittenhouse, who is from Illinois USA, was 17 years old when charged in 2020 with various offences including two counts of homicide arising from the fatal shooting of two men during civil unrest in Kenosha, Wisconsin USA. The civil unrest arose out of the non-fatal shooting of black man Jacob Blake, by a white police officer. Kyle Rittenhouse was ultimately found not guilty of the charges pressed. The Applicant posted the following comment (the First Kyle Rittenhouse Post) in conjunction with the photo;

“A hero has emerged…Pray for Kyle…” 75

[64] On 19 May 2021, the Applicant posted another photo of Kyle Rittenhouse with an accompanying headline of a story that a US police officer who had been dismissed for donating to Kyle Rittenhouse’s legal defence costs, had filed a grievance. The Applicant made the following post (the Second Kyle Rittenhouse Post) in relation to the picture and story;

“Good, I donated some serious USD to Kyle’s defence too. He’s a good boy and innocent of all crimes.” 76

[65] The Applicant explained that his Kyle Rittenhouse posts were supportive of a young man who had gone out during civil unrest to “clean graffiti, protect local businesses from BLM rioters including arsonists looters and violent Antifa due to government inaction in the USA” 77. He further states that contrary to what he says was put to him during his disciplinary meeting on 22 September 2021, Kyle Rittenhouse did not shoot “a dozen black people” and was acquitted of the two homicide charges and all other charges pressed against him.

[66] At a more general level, the Applicant states his Facebook account does not include a picture of himself, does not identify his geographic location or that he was an employee of the ACTU. He further states that he has never posted comments about the ACTU or affiliate unions and has not been inundated with requests from ACTU staff to be ‘friends’ with him on Facebook 78. Nor does he accept that he is a ‘public face’ of the ACTU and that it is improbable that his “obscure Facebook account” would be viewed widely and linked back to the ACTU.

[67] The Applicant also gave evidence that he has never hidden his personal beliefs and views, as can be seen by a series of his letters to the editors in local mainstream newspapers 79. He further states that his identity is not concealed in those published letters, and that it is far more likely that a member of the public would read those letters than would read his Facebook account, of which he only has some 70 ‘friends’. He also states that he has never been counselled or warned by ACTU management in relation to the content of his letters to the editor.

[68] Alex White gave evidence that each of the posts individually as well as collectively were in his view deeply offensive. He states that they variously promoted civil disobedience in respect of pandemic restrictions, endorsed violence against police officers and minority groups, mocked victims of domestic violence and included antisemitic, homophobic, transphobic, and racist themes which according to Alex White ought not be the subject of satire. Alex White rejected that the posts of the Applicant could be compared neutrally with the various cited posts of other ACTU officers which were clearly metaphorical in the imagery used or that the CFMMEU’s use of Ned Kelly imagery promoted violence against police officers.

[69] Alex White stated that he was unaware of any complaints from ACTU staff, its affiliates, or members of the public in respect of the Applicant’s Facebook posts and agreed that the concern about the Applicant potentially flouting pandemic restrictions was a ‘second order’ issue in the context of the range of ACTU concerns with the posts. He also confirmed that he had reviewed the Facebook accounts of ACTU employees on three occasions during his tenure at the ACTU, although conceding two of those cases were not serious.

Termination of Applicant’s employment

[70] Alex White states that he was concerned that the Applicant’s social media posts might negatively impact on;

•  the health and safety, including the psycho-social wellbeing, of ACTU staff, workers who called the Support Centre, and Australian workers more broadly; and

•  The reputation of the ACTU, which is a values-driven and progressive organisation.

[71] Following discussion with Sarah Mitchell at approximately 1.45pm on 21 September 2021, Alex White sent an email at 3.22pm to the Applicant requiring his attendance at a Zoom meeting at 9.00am on 22 September 2021 in relation to ‘unacceptable conduct that may amount to serious misconduct’. An email exchange followed in which the Applicant sought details of the alleged misconduct. Alex White responded that the alleged misconduct included ‘statements/posts on social media, and the future of your employment’ 80. The Applicant was invited to have a support person present at the meeting. The Applicant states that he thought the scheduled meeting was a preliminary meeting regarding alleged misconduct and that it did not occur to him that there was a possibility that his employment could be terminated81.

[72] The Applicant attended the Zoom meeting at 9.00am on 22 September 2021 and was accompanied by a workplace delegate who acted as his support person. Alex White and Sarah Mitchell attended the meeting for the ACTU. At the commencement of the meeting the Applicant requested that the meeting be recorded and that the ACTU allegations be put in writing. These requests were both declined. The meeting recording request was denied because the ACTU has an approach of not recording meetings while the request for the allegations to be put in writing would, according to Sarah Mitchell, have prevented the matter being dealt with a timely manner.

[73] The Applicant was initially asked at the meeting to confirm that the Facebook account on which the above-referred posts were made was his, to which he confirmed that it was. It was then explained to the Applicant that the Facebook posts could be considered serious misconduct and was told that his employment was at risk. The Applicant states that he asked Alex White whether the meeting had anything to do with the 2021 Warning to which he says Alex White confirmed it did not 82. Alex White denies this question was asked however Sarah Mitchell’s notes of the meeting indicate the issue was raised83.

[74] Alex White states that during the meeting he advised the Applicant;

•  that he had become aware of the Applicant’s social media posts which he considered unacceptable in the context of his employment with the ACTU, incompatible with ACTU and union values, and which could bring the ACTU into disrepute;

•  that the posts could amount to serious misconduct;

•  that the meeting was about the future of his employment, and;

•  that he was being given an opportunity to respond to the issues we were concerned about. 84

[75] The Applicant was asked by Alex White to outline how the various posts were compatible with his employment with the ACTU. This was done on a post by post basis with Alex White progressively sharing the posts via Zoom and inviting the Applicant to respond. The Applicant explained the posts during the meeting as being satirical and variously reflected his genuine political, religious, or cultural beliefs which he understood were protected by state and federal anti-discrimination laws. According to Sarah Mitchell, the Applicant in his responses sought to justify the posts based on his personal political and religious views and opinions 85.

[76] While the Facebook posts were shown to the Applicant during the meeting, the 21 September Slack Post was not shown due to the meeting being interrupted by an earthquake that occurred in Melbourne that morning. The Applicant claims that he was unaware of the specific Slack post of concern until it (the ACTU) had filed its material in the present matter. It is also not in dispute that the specific ACTU policies and values that the Applicant’s conduct was said by the ACTU to be in breach of, were not provided or put to the Applicant prior to or during the meeting of 22 September 2021. Nor were any relevant clauses of the 2018 Agreement referred to by the ACTU prior to or during the disciplinary meeting of 22 September 2021.

[77] While the Applicant maintained during the meeting of 22 September 2021 that his conduct was reasonable, he offered to delete the various Facebook posts of concern. Sarah Mitchell states that she did not believe the offer was genuine or that the Applicant recognised the problematic nature of the posts 86.

[78] Alex White and Sarah Mitchell met shortly after conclusion of the meeting with the Applicant. They agreed that the Applicant’s publicly accessible social media posts were inconsistent with his duties to the ACTU. According to Sarah Mitchell, they considered various matters including the public facing nature of the Applicant’s role and compared the requirements of his role to that of the posts which included support for violence, homophobia, and transphobia. Alex Mitchell and Sarah White agreed that the Applicant had been unable to satisfy them that his behaviour and actions did not constitute misconduct or that there would be no repeat of the conduct.

[79] Alex White variously stated during cross-examination that;

•  the ACTU supported the Black Lives Matter movement in Australia, although that did not mean it supported every protest action taken;

•  he was unaware of any complaints regarding the Applicant’s conduct, apart from the 2018 Warning and 2021 Warning;

•  he could not identify any examples where the Applicant had failed to communicate the ACTU’s policies in the course of his employment;

•  he was not aware at the time of the Applicant’s dismissal that the Applicant had previously had various letters to the editor published or that any affiliates of the ACTU had resigned or threatened to resign because of the views expressed by the Applicant in those letters;

•  the Applicant’s Facebook posts of concern to the ACTU had not gone ‘viral’ to his knowledge;

•  during the meeting on 22 September 2021, he did not explain to the Applicant how the Facebook posts presented a health and safety risk to staff or reputational risk to the ACTU;

•  the Applicant’s Facebook account did not identify the Applicant as an employee of the ACTU;

•  acknowledged that he read the “about section” of the Applicant’s Facebook account which referred to use of satire;

•  he could not identify any damage to the ACTU that had arisen from the Facebook posts;

•  he had no evidence that the Applicant’s Facebook posts were made using an ACTU provided computer or other ACTU provided electronic devices; and

•  the Facebook posts of concern had not been referred to law enforcement officers.

[80] Alex White rejected the proposition that he had pre-formed a view prior to the meeting of 22 September 2021 that the Applicant should be dismissed. He also disagreed that he had a conflict of interest in dealing with the matter because of the Applicant having recently raised a dispute in relation to the 2021 Warning. He reaffirmed under cross-examination that the posts were deeply offensive and derogatory and potentially damaging to the ACTU’s reputation and to its staff. He also denied that he had targeted or discriminated against the Applicant or that other officers of the ACTU harboured antipathy towards the Applicant because of his exercise of workplace rights.

[81] Sarah Mitchell was cross-examined in relation to the meeting on 22 September 2022 and variously stated that;

•  she believed the Social Media policy only applied in respect of the use of ACTU supplied equipment and she had no evidence that the Applicant had used ACTU provided equipment to make the Facebook posts;

•  she was not aware that other ACTU staff may have used the Slack platform to disparage workers;

•  Alex White had not raised with her prior to the 22 September 2021 meeting that the Applicant had notified a dispute in relation to the 2021 Warning;

•  the Applicant was not asked at any stage to remove the Facebook posts of concern;

•  that in reaching the decision to dismiss the Applicant, she and Alex White had considered the Applicant’s claim that his posts were protected by various legislation, but that his explanation failed to acknowledge that his posts were unreasonable and inappropriate; and

•  in discussing the Kyle Rittenhouse posts in the meeting, she could not recall Alex White stating that Kyle Rittenhouse had “killed a dozen black people” or that he got agitated during that discussion.

[82] A recommendation to dismiss the Applicant was then put to and accepted by the ACTU Executive Officer 87 on 22 September 2021. A letter signed by Alex White confirming the Applicant’s dismissal was subsequently sent to him on 22 September 202188 (the Termination Letter), which stated as follows;

“Dear Conrad,

Re: Termination of employment

I am writing to advise you that your employment is terminated with immediate effect and without notice.

The ACTU has been made aware that you engaged in serious misconduct through the posting of certain materials to your social media accounts and the ACTU’s Slack platform. This included material which was (among other things) highly offensive, discriminatory and, constituted a risk to health and safety as well as the reputation of the ACTU.

The material is completely inconsistent with the clear and unambiguous values and policies of the ACTU and the Australian union movement.

This allegation was communicated to you at a meeting on 22 September 2021, which was attended by myself, David Nash (your representative) and Sarah Mitchell (ACTU General Manager). During this meeting, you were given an opportunity to explain your conduct.

Based on the information that the ACTU has received and the inadequacy of your explanation for engaging in such conduct, the ACTU believes that your actions constitute serious and wilful misconduct.

The ACTU believes it therefore has no alternative but to summarily dismiss you with immediate effect and without notice.

Notwithstanding that we are of the view that your recent conduct constitutes serious and wilful misconduct, we remind you that you have previously been warned as follows in relation to your past misconduct:

1. On 8 March 2018 you were warned in writing in relation to a number of emails which you sent which contained inappropriate material, including implicit and explicit threats.

2. On 9 August 2021 you were warned in writing in relation to your continued display of inappropriate material (being images/illustrations and figurines depicting naked and/or sexualised women) in the workplace.

You will be paid your accrued statutory leave entitlements, and your accrued and any unpaid salary to date. These amounts will be subject to tax, and the final amounts will be paid into your bank account on 23 September 2021. Final superannuation payments will also be paid into your superannuation fund.

The ACTU expects that you will comply with all post termination obligations arising from your employment contract, including your obligations to return the ACTU’s property and protect its confidential information.

……………….”

Has the Applicant been dismissed?

[83] A threshold issue to determine is whether the Applicant has been dismissed from his employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the ACTU has been terminated on the ACTU’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 ACTU.

[84] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that the Applicant’s employment with the ACTU was terminated at the initiative of the ACTU.

Initial matters

[85] Under section 396 of the 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; and

(d) whether the dismissal was a case of genuine redundancy.

Was the application made within the period required?

[86] Section 394(2) requires an application to be made within 21 days after the dismissal took effect. It is not contested that the Applicant was dismissed on 22 September 2021 following which he filed an application for an unfair dismissal remedy on 8 October 2021. I am therefore satisfied that the application was made within the period required under subsection 394(2) of the Act.

Was the Applicant protected from unfair dismissal at the time of dismissal?

Minimum employment period

[87] It was not in dispute, and I find that the ACTU is not a small business employer, having stated in its Form F3 that at the time of the Applicant’s dismissal it employed approximately 97 employees. The Applicant commenced his employment with the ACTU on 15 June 2015 and was dismissed on 22 September 2021, that being a period of employment more than 6 years. I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the ACTU of at least the minimum employment period of six months.

Modern award or enterprise coverage, annual rate of earnings

[88] It was not in dispute, and I find that, at the time of dismissal, the Applicant was covered by the Clerks Private Sector Award 2020 89. He was also in receipt of annual remuneration of $75,404.00 (plus superannuation) which means his annual rate of earnings was less than the high-income threshold.

[89] It follows from the above and I am satisfied that as the Applicant has met the minimum period of employment and was covered by a modern award, he is a person protected from unfair dismissal.

Did the ACTU comply with the Small Business Fair Dismissal Code in relation to the dismissal?

[90] Section 388 of the 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.

[91] As mentioned above, I find that the ACTU was not a small business employer within the meaning of s.23 of the Act at the relevant time, having more than 14 employees (including casual employees employed on a regular and systematic basis). I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the ACTU is not a small business employer within the meaning of the Act.

Was the dismissal a case of genuine redundancy?

[92] Under s.389 of the 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.

[93] It was not in dispute, and I find that the Applicant’s dismissal was not due to the ACTU no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the ACTU’s enterprise. I am therefore satisfied that the dismissal was not a case of genuine redundancy.

[94] Having considered each of the initial matters, I am satisfied that the application was made within the required period in subsection 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application.

Was the dismissal harsh, unjust, or unreasonable?

[95] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account:

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

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

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

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

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

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

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

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

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s 387(a)?

[96] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”⁹⁰ and should not be “capricious, fanciful, spiteful or prejudiced⁹¹.” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer⁹².

[97] The reasons relied on by the ACTU in dismissing the Applicant were that he had engaged in serious misconduct through the posting of certain materials to both the ACTU’s internal Slack messaging platform and to his own social media Facebook account. This conduct was said by the ACTU to include the posting of highly offensive and discriminatory material that constituted a risk to health and safety as well as to the reputation of the ACTU.

[98] There is no dispute that the Slack and Facebook posts referred to by the ACTU and in evidence before me, were made by the Applicant. Save for the 21 September Slack Post, the remaining posts were made by the Applicant on his personal Facebook account and were said by the Applicant to be a sincere expression of his personal views and beliefs.

[99] What must be said at the outset of my consideration of the Applicant’s conduct is that the Applicant’s personal views and beliefs are not “on trial,” notwithstanding some of those views may not be shared by a sizeable proportion of the population. Rather, it is whether the expression of those views on his personal Facebook account and on the ACTU’s Slack platform were contrary to the explicit and/or implied obligations he owed to his employer, whether the conduct constituted serious misconduct and established a valid reason for his dismissal.

[100] Central to establishing whether there was a valid reason for the dismissal is that of determining whether the Applicant’s out of hours social media conduct was a matter that bore upon his employment relationship and whether the conduct was contrary to his contract of employment and/or whether it constituted serious misconduct. Helpfully, the matter of out of hours conduct has been subject to previous consideration by the Commission. The definitive Commission authority on out of hours conduct is that of Rose v Telstra Corporation Limited 93 (Rose v Telstra) where Ross VP (as he then was) said as follows;

“It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited,:

•  the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or

•  the conduct damages the employer's interests; or

•  the conduct is incompatible with the employee's duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.

Absent such considerations an employer has no right to control or regulate an employee's out of hours conduct.”

[101] The principles of Rose v Telstra have been applied to circumstances involving the out of hours use of social media by employees, where such activity has led to dismissal. As stated by Hatcher VP in Starr v Department of Huma Services 94 (Starr);

“[60] Thus there will not usually be a proper basis to find that there is a valid reason for a dismissal for “out of hours” conduct which does not fall within the circumstances described in Rose v Telstra. Thus if an employer dismisses an employee for a breach of an employment policy which purports to regulate the employee’s private conduct, there will not usually be a valid reason for the dismissal unless the employee’s conduct falls within the Rose v Telstra circumstances.”

[102] Hatcher VP in Starr went on to consider the social media posts of the applicant in that case who had been dismissed by the Department of Human Services. Importantly, the Vice President’s consideration was in the context of the applicant’s employment as a public servant having been regulated by statute which the Vice President observed may lead to greater control being exercised by the employer than in the case of a private employer. In making that observation the Vice President relevantly referred to the Federal Court decision McManus v Scott-Charlton 95 (McManus) as follows;

“[61] However, the scope of employer control over private conduct may be greater in the case of public servants whose employment is regulated by statute. This was recognised by the Federal Court (Finn J) in McManus v Scott-Charlton as follows:

“From 1862, Australian public service legislation has imposed strictures and limitations upon the employment and non-employment (or private) conduct and activities of public servants; the acquisition of personal interests conflicting with duties of office: PS Regulations, reg 8B; holding outside offices or employment: PS Act s91; making private disclosures of official information: PS Regulations, reg 35; and see also PS Regulations, reg 8A(i) and regs 65 and 70.

It seems clear that some number of these strictures and limitations were - and are - not designed merely to serve the purposes of the employment relationship as such. Rather, for reasons of governmental and public interest, their object includes securing values proper to be required of a public service in our system of government and, in particular, the maintenance of public confidence in the integrity of the public service and of public servants: for a contemporary treatment of this, see generally Electoral and Administrative Review Commission, Report on the Review of Codes of Conduct for Public Officials, (1992, Qld).

For this reason public service Acts and regulations have in some respects gone considerably beyond what would be countenanced by the implied contractual duty of an ordinary employee to serve his or her employer with good faith and fidelity - at least insofar as the regulation of an employee's private activities are concerned: on this implied contractual duty, see eg Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66 at 81-82.

Perhaps the most contentious illustrations of this legislative regulation of private conduct have been (i) the changing supervision of the political activity of public servants (initially taking the form of a total ban: see Civil Service Regulations 1867 (Vic) reg 23;) but see now eg "Guidelines on Official Conduct of Commonwealth Public Servants" (1995) Chs 5 and 6; and for a comparative treatment see, Ontario Law Reform Commission, Report on Political Activity, Public Comment and Disclosure by Crown Employees (1986); and (ii) the still exceptionally broad and, perhaps today, possibly invalid prohibitions imposed on the private use made of information "of which an officer ... has knowledge officially": see PS Regulations, reg 35.

The particular points I wish to make about this enduring and legislatively backed "public interest" regulation of the private conduct of public servants are these. First, to the extent that private conduct is made the lawful subject of employment regulation, it can for that reason provide the subject of a binding employment direction - provided the direction given is itself reasonable.

Counsel for the applicant has submitted in contrast that the only binding directions which can be given a public servant are those related to - which have a nexus with - the performance of that person's employment duties. In light of what I have said so far, this submission is untenable as a generalisation.”” 96

[103] Other single member decisions of the Commission reveal that employees’ use of social media may establish a valid reason for dismissal where the out of hours conduct satisfies the threshold set out in Rose v Telstra. The following cases highlight the approach taken in various matters.

[104] In Cameron Little v Credit Corp Group Limited t/as Credit Corp Group 97 (Little v Credit Corp) Sams DP considered certain social media posts of the applicant that were disparaging of a client of his employer and a further post that was offensive in its tone and language directed towards a new employee of Credit Corp. In assessing the conduct and determining there was a valid reason for dismissal, the Deputy President considered whether the existence of a Code of Conduct directly addressed the applicant’s action and further considered whether an individual was at liberty to hold and express views about their employer. He stated as follows;

“[69] Even if the respondent had no policies or a Code of Conduct directly addressing the applicant’s actions, it would be of no consequence. One hardly needs written policies or codes of conduct to understand and appreciate that, firstly, the kind of sexual comments made about the new employee were grossly offensive and disgusting and were more than likely to cause hurt and humiliation. Secondly, there can be no doubt that the comments made by the applicant about CAP were likely to adversely impact on the respondent’s relationship with that organisation and damage the respondent’s wider reputation.

[70] I hasten to add, the applicant is perfectly entitled to hold views about any organisation and to express such views in the public domain; but he is not entitled to do so in a manner which injures his employer’s business relationship with that organisation. I note that the applicant himself had made 17 calls to CAP between May and June 2013.

……………..

[74] Thirdly, I have already said the applicant is perfectly entitled to have his personal opinions, but he is not entitled to disclose them to the ‘world at large’ where to do so would reflect poorly on the Company and/or damage its reputation and viability. If he did not believe his comments about CAP were likely to have these effects, he displayed a poor sense of judgment, at the very least.

[75] Fourthly, the fact the applicant made both Facebook comments in his own time is of no consequence. It was not when the comments were made which is important, but the effect and impact of those comments on the respondent, its other employees and on the new employee. On this subject, I refer to what Ross VP (as he then was) said in Rose v Telstra…….” 98

[105] In O’Keefe v William Muirs 99 (O’Keefe v Muirs), Swan DP considered personal Facebook posts of the applicant which were considered threatening towards fellow employees and were visible to some of the applicant’s co-workers. The Deputy President relevantly observed as follows;

“[41] The Employee Handbook also contained detailed Policies, such as the Sexual Harassment Policy and the Workplace Bullying Policy.

[42] Even in the absence of the respondent’s Handbook warning employees of the respondent’s views on matters such as this, common sense would dictate that one could not write and therefore publish insulting and threatening comments about another employee in the manner in which this occurred.

[43] The fact that the comments were made on the applicant’s home computer, out of work hours, does not make any difference. The comments were read by work colleagues and it was not long before Ms Taylor was advised of what had occurred. The respondent has rightfully submitted, in my view, that the separation between home and work is now less pronounced than it once used to be.

[44] I have accepted that the applicant’s conduct was repudiatory conduct which amounted to serious misconduct.” 100

[106] In Nirmal Singh v Aerocare Flight Support Pty Ltd 101 (Singh v Aerocare) Hunt C considered the significance of the applicant in that matter having not been readily identifiable as an employee of Aerocare when making Facebook posts supportive of the international terrorist group ISIS. She relevantly stated as follows;

“[284] Furthermore, I do not accept Mr Singh’s contention that he had not breached the SM Policy because his Facebook profile could not be readily identifiable as an Aerocare employee. Some of Mr Singh’s own Facebook friends are likely to have some knowledge as to his occupation. It does not matter that this is a small or large number. If Mr Singh was indeed an ISIS supporter, with access to aircraft, even a handful of Facebook friends reading the alarming post and reporting it could cause harm to Aerocare.

[285] The relevant part (in bold) of the SM Policy conceded by Mr Singh to constitute a potential breach is as follows:

‘Employees should be aware that their actions captured via images, posts, or comments can reflect that of our company. Employees must be respectful to the company, other employees, customers, partners, and competitors and are discouraged from publishing weblogs or other publications that are intended to, or may have the result of, causing harm to Aerocare.’

[286] Upon making the post, ‘We all support ISIS’ on a social media platform, any control Mr Singh thought he might have over the post is lost. It takes just one person to report the post, share it, on even inquire as what an airport worker is doing supporting ISIS. I do not find that Mr Singh published the post with an intention of causing harm to Aerocare. I do, however, find that in publishing the post, it may have had the result of causing harm to Aerocare.” 102

[107] In Miss Sally-Anne Fitzgerald v Dianna Smith trading as Escape Hair Design 103, Bisset C considered a range of conduct by the applicant in that matter including an out of hours Facebook post that expressed frustration at the applicant not having received her holiday pay on time and criticising the hairdressing industry more generally. While finding that the Facebook posts were not such as to damage the Respondent’s business or the hairdressing industry, the Commissioner did make the following relevant observations;

“[51] It is well accepted that behaviour outside working hours may have an impact on employment ‘to the extent that it can be said to breach an express term of [an employee’s] contract of employment’.

[52] A Facebook posting, while initially undertaken outside working hours, does not stop once work recommences. It remains on Facebook until removed, for anyone with permission to access the site to see. A Facebook posting comes within the scope of a Rose v Telstra consideration but may go further. It would be foolish of employees to think they may say as they wish on their Facebook page with total immunity from any consequences.”

[108] Finally, in Malcolm Pearson v Linfox Australia Pty Ltd 104(Pearson V Linfox). Gregory C considered Linfox’s social media policy and its application to out of hours conduct in circumstances where the applicant in that matter resisted the application of the social media policy to his out of hours conduct. The Commissioner relevantly stated;

“[46] Secondly, Linfox’s desire to have a policy in place about the use of social media by employees can be understood. The evidence indicated it had been criticised in other proceedings for not having done so. Further, in an employment context the establishment of a social media policy is clearly a legitimate exercise in acting to protect the reputation and security of a business. It also serves a useful purpose by making clear to employees what is expected of them. Gone is the time (if it ever existed) where an employee might claim posts on social media are intended to be for private consumption only. An employer is also entitled to have a policy in place making clear excessive use of social media at work may have consequences for employees.

[47] In terms of Mr Pearson’s complaint that the policy sought to constrain him whilst not at work it is not my role to be sitting in judgement about whether the policy is in breach of his individual rights or other statutes and conventions. Mr Pearson is apparently pursuing those matters elsewhere. However, it is difficult to see how a social media policy designed to protect an employer’s reputation and the security of the business could operate in an “at work” context only. I accept that there are many situations in which an employer has no right to seek to restrict or regulate an employee’s activities away from work. However, in the context of the use of social media, and a policy intended to protect the reputation and security of a business, it is difficult to see how such a policy could operate in this constrained way. Is it suggested that an employer can have a policy in place that seeks to prevent employees from damaging the business’s reputation or stopping them from releasing confidential information while at work, but leaving them free to pursue these activities outside of working hours? This would be an impractical approach and clearly there are some obligations employees accept as part of their employment relationship that have application whether they are at work or involved in activities outside of working hours.” 105

[109] From the above cited cases I discern the following;

•  Rose v Telstra and the principles set out therein remains the key authority in assessing the out of hours conduct of a dismissed employee;

•  Commonwealth public servants’ out of hours conduct including the private use of social media may be subject to greater constraints by reason of such employees’ employment being regulated by statute;

•  the existence of an employer’s policy governing out of hours social media usage of an employee may not be essential to finding that out of hours social media conduct constitutes serious misconduct;

•  the operation of a social media policy to only within an employee’s ordinary hours of work would be impractical; and

•  the fact that an employee’s social media posts may be anonymous or limited in terms of its initial distribution may be irrelevant once the post is made publicly on a social media platform.

[110] Returning to the present case and before considering the Applicant’s social media posts, it is necessary to determine what if any policies applied to the Applicant’s employment. The starting point for the analysis is that of the Applicant’s Letter of Employment dated 20 May 2015 which stated that his conditions were set out in the ACTU Staff Agreement.

[111] The successor agreement to the ACTU Staff Agreement referred to in the Letter of Employment is the 2018 Agreement. The 2018 Agreement applied at the time of the Applicant’s dismissal and includes at clause 5.2 a statement that the Agreement is to be read in “conjunction with the policies”. While a series of policies are appended to the Agreement, I do not accept clause 5 is to be read as limiting the applicable policies to only those appended to the 2018 Agreement. Were that the case then the subsequent sentence in clause 5.2 which allows for the development and amendment of policies would have no work to do. Where the term ‘policies’ appears in the first sentence of clause 5.2, I am satisfied that it is a reference to ACTU organisational policies that generally apply and are subject to development and amendment in accordance with the consultation and agreement process set out in the clause.

[112] The Respondent states that it has recently reviewed, consulted over, and distributed a range of organisational policies. These were detailed above at [36] and relevantly include the ACTU Code of Conduct (September 2021) and the ACTU Gendered Violence and Harassment Policy (2021) and ACTU Social Media Policy (October 2021). While the Applicant may have been aware of the development of these policies, they were not binding on him at the time of his dismissal as they had not been formally adopted by the Consultative Committee until 30 November 2021, which was well after the Applicant’s dismissal on 22 September 2021.

[113] Evidence was also led by the ACTU that the relevant policies that did apply at the time of the Applicant’s dismissal were the Harassment, Discrimination & Workplace Bullying Policy (June 2016), the Social Media Policy (June 2016) and the former Code of Conduct. The Applicant challenged the application of these policies as he claimed there was no evidence that these policies had at any point been subject to consultation and agreement as required by clause 5.2 of the 2018 Agreement.

[114] I reject the Applicant’s submission in respect of the above-referred policies not applying to him for the following reasons. Firstly, the referenced policies (including the Code of Conduct) were subject to training of all staff in 2016 which the Applicant did not dispute had occurred. Secondly, the Applicant as a Level 3 employee under the 2018 Agreement was required to have the “capacity to contribute to administrative and organisational policies” and was also required to hold Level 1 and 2 skills which relevantly included following organisational policies. Thirdly, it is not sustainable in my view for the Applicant to argue that the former Code of Conduct was not applicable in circumstances where the 2018 Warning put him squarely on notice regarding his required compliance with the Code of Conduct. It follows and I am satisfied that at the time of the Applicant’s dismissal, the relevant policies that applied were those set out above at [39].

[115] Turning to the specific policies, I am satisfied that the Applicant had a number of particular and relevant obligations under the Code of Conduct. Specifically, he was required to;

•  act in the ACTU’s best interests and value the ACTU’s reputation;

•  conduct himself in public in a manner that did not reflect adversely on the ACTU;

•  treat other employees and the general public with respect and courtesy, having regard for the dignity of the people with whom he interacted;

•  promote equity, and value and utilise diversity in the work environment and in the broader community; and

•  prevent bullying or other forms of harassment in or outside the workplace.

[116] Further, in relation to “Conduct in Public” the applicable Code of Conduct required the following of the Applicant;

“As an officer or employee of the ACTU you must consider the impact of your actions in public whether on duty or not. For example, you should still behave to the same standard if you are at an office social function after work hours. If you have permission to work at another job, you must ensure that the work you do and your conduct upholds the principles expressed in this Code of Conduct and does not adversely affect your work at the ACTU.”

[117] The Harassment, Discrimination & Workplace Bullying Policy (June 2016) is stated to apply to;

•  any behaviour or series of behaviours that unfairly or unreasonably offends, humiliates, intimidates, belittles, undermines, scares, excludes, or embarrasses anyone it is directed at, or anyone who sees or overhears it; and

•  any behaviour or series of behaviours that may constitute any form of discrimination.

[118] I am satisfied that the Harassment, Discrimination & Workplace Bullying Policy (June 2016) relevantly required that the Applicant;

•  not participate in harassing, discriminatory or bullying behaviour;

•  comply with ACTU’s Values; and

•  treat others in a professional, courteous, respectful and fair way.

[119] Turning to the ACTU Social Media Policy (June 2016), I am not satisfied that the 2016 policy explicitly applied to the Applicant’s out of hours social media conduct. That is because it is expressed to apply to all “officers, staff and other authorised users of ACTU computers, mobile devices and networked facilities and services” and is stated to provide guidance for “work-related and personal use of ACTU internet, email and social media.” The focus of the policy is on the use of “ACTU Internet, Email and Social Media,” not on employees’ use of their own equipment for private social media activity out of hours.

[120] In circumstances where the ACTU has taken issue with the Applicant’s private out of hours social media activity, the absence of specific reference to such activity in the policy appears an evident deficiency. That ‘gap’ in the policy has now been addressed in the ACTU Social Media Policy (October 2021)¹⁰⁶, and while the 2021 policy did not apply to the Applicant, it now explicitly covers “Personal Social Media use while off Duty” and relevantly states that;

(a) We recognise that staff may engage in public discussion and debate on social media outside of work hours.

(b) If using social media outside of work hours, staff must not act in a way that would bring the ACTU or union movement into disrepute.

[121] Having determined the applicable policies and the specific requirements of those policies as may be relevant to the Applicant’s conduct, I now turn to consider the various posts made by the Applicant.

[122] The first post of the Applicant referred to by the ACTU as being variously in breach of it values, public position and policies is that of the 21 September Slack Post in which the Applicant posted on the ACTU’s internal messaging platform, comments in relation to a protest march that was underway in Melbourne at the time. It is noted that the post was made on the 21 September 2021, the day after the violent protest outside the CFMMEU construction division’s Melbourne office. In the wake of the 20 September 2021 protest the ACTU Secretary, Sally McManus, condemned and linked the violence to far right agitators. Other senior Labour and union figures drew similar links in the aftermath of the protest on 20 September 2021.

[123] The first sentence of the 21 September Slack Post reports on the march and the apparent conduct of participants when the Applicant states “my sources on the ground tell me that there must be a few thousand CFMEU members chanting F Dan Andrews and F The Jab heading towards Spring St”. I am unable to discern any aspect of the first sentence that is offensive or derogatory. It simply reports on an internal messaging platform feedback the Applicant has received on a protest march underway.

[124] The ACTU takes particular exception to the second sentence of the post where the Applicant states “They’re obviously not ‘far right’ or Neo-Nootsis (whatever that means), prepare for some calls though!” The apparent concern the ACTU held with the post is that it was contrary to the ACTU narrative at the time of the protest, that being the protests that were unfolding were a result of far-right agitators. The Applicant’s post contradicted that narrative. The Applicant’s view that the crowd was made up of construction workers protesting the mandatory construction industry vaccination requirements informed his opinion that was expressed in the post.

[125] I accept the post may have been contrary to the public position of the ACTU but I am not persuaded that the Applicant’s opinion on the make-up of the crowd, with which Alex White disagreed, posed a risk to the ACTU’s reputation in circumstances where the post was made on its internal messaging platform. Nor is it obvious to me how the post could be said to pose any risk to the health and safety of ACTU staff or be inconsistent with organisational policies. I note for the sake of completion on this point that the Applicant was spoken to by his immediate manager when she became aware of the post and the Applicant then deleted the post.

[126] Turning now to the Fuck the Jab Post of 20 September 2021. The Applicant rationalised the post he made during his lunchbreak that day as being due to his belief that the protest underway on 20 September 2021 was a grass roots campaign with support of officials of the CFMMEU. He says when the ‘fog of war’ lifted he realised he was in error in that belief and removed the post.

[127] The following may be said of the Applicant’s explanation for the post. Regardless of whether the protest was a grass roots campaign or not, the Applicant’s post ‘cheered on’ the public campaign against vaccination mandates in circumstances where the ACTU had a clearly articulated position supporting vaccination and other measures recommended by public health experts. The Applicant acknowledged he was aware of that public position although not agreeing with it. It is almost inconceivable in my view that the Applicant could believe his Fuck the Jab Post was not inconsistent with the ACTU’s public position. It (the post) was utterly inconsistent with the ACTU’s public position and to suggest otherwise is disingenuous on the Applicant’s part.

[128] As to the delay in the Applicant’s removal of the post until over 24 hours later, he attributes this to not seeing the mainstream media coverage of the event on 20 September 2021 nor being aware of the ACTU’s public position of condemning the protest until he returned to work on 21 September 2021. That is a curious explanation in circumstances where the Applicant took some pride in his well-researched positions on a range of matters he commented publicly on in his Facebook posts. The Fuck the Jab Post was removed by him after Alex White communicated with the Applicant on the afternoon of 21 September 2021 regarding ACTU concerns held over the Applicant’s social media posts.

[129] I found the Applicant’s explanation of the timing of the post removal and his ‘fog of war’ defence unconvincing. Even if he was unaware of the ACTU’s public position on the protest until the morning of 21 September 2021, the explanation that he was unable to remove the post until the evening of the 21 September 2021 due to his being at work that day does not sit easily with his ability to make the original post during his lunch break on the 20 September 2021. I do not accept the Applicant’s explanation but find that the Applicant removed the Fuck the Jab Post following and only because of Alex White raising the Applicant’s social media activity with him on 21 September 2021.

[130] Even if the Applicant removed the Fuck the Jab Post when he became aware of the extent of the violence of the 20 September 2021 and the ACTU’s condemnation of it, that still fails to explain how such a post could be seen as consistent with the ACTU position on vaccination and mandates. I consequently agree with the ACTU’s submission that the Fuck the Jab Post was unarguably inconsistent with the ACTU public position on vaccination. For an employee of the ACTU to publicly post support for a campaign directed to undermine and/or overturn government mandated public health measures which his employer was on the public record as supporting, was in breach of a number of obligations set out above. Specifically, it was contrary to Code of Conduct obligations to not act contrary to the ACTU’s interest nor conduct himself in public in a manner that reflected adversely on the ACTU.

[131] Turning now to the Rights Post, the Applicant justified the post as being variously satirical and a critique of powerful interest and lobby groups. He resisted the proposition that the post could be seen as offensive in terms of its alleged refences to domestic violence, racism and homosexuality. On an objective reading of the post, it mocks victims of domestic violence and the Black Lives Matter (BLM) campaign. I accept that the term ‘globo homo Big Lies” as used in the post has a contested meaning and may not necessarily be anti-homosexual but may be used to describe globalisation and homogenisation as contended by the Applicant. However, the fact that the term may have a contested meaning does not detract from it being seen by some as referring in a derogatory manner to the claimed promotion and normalisation of homosexuality by corporate and political interests.

[132] Further, despite the Applicant’s protestations as to his understanding of the meaning of the term NIBBA, there is little doubt in my mind given the context in which the term is used, that of an allegedly satirical post, that the term was used to refer to a person of black skin colour in a disparaging manner. Even if it was not used in that manner the Applicant ought to have been aware given his claimed extensive knowledge and research, that the term is regarded as offensive to people of a particular racial background and is routinely used as an alternative to the highly offensive “N” word.

[133] Notwithstanding the Applicant’s claims of speaking truth to power and satirising special interest groups and powerful elites, the Rights Post is strongly at odds with the public position of the ACTU on a range of progressive social issues including domestic violence, racism, transphobia, and homophobia. While there is no suggestion that the Applicant has expressed these views in the course of his employment, the publication of these views on his Facebook page is in my view contrary to his obligations under both the Code of Conduct and the Harassment, Discrimination & Workplace Bullying Policy (June 2016). The conduct was public, is discriminatory in its tone and content, is contrary to the ACTU’s value of respect and presents a risk to the ACTU’s reputation with its affiliates, union members and members of the public.

[134] The Police Assault Post made on 20 September 2021 was variously defended by the Applicant as satirical, a comment on government overreach and not intended to promote violence against law enforcement officers. The claims of satirical commentary and government critique are not readily apparent in my view, particularly in circumstances where the post occurred against a backdrop of the violent Melbourne protest of 20 September 2021. In simple terms, the post applauds the assault on a police officer in circumstances where according to the Applicant he (the police officer) “got as good as he gave.” To submit that the post does not at the very least applaud (if not encourage) violence against police officers is with respect not sustainable. It does so (applauds the violence) in a very overt manner when it states, “I do enjoy Bolsheviks whether urban cops or other types get taken out….” I reject the Applicant’s defence of the post.

[135] The Applicant was aware that the Police union was an affiliate of the ACTU but denied that the Police Assault Post constituted any risk to the ACTU’s reputation. I disagree. The post is in my view is antithetical to the interests and reputation of the ACTU with its affiliates, specifically the Police Federation. I find it difficult to conceive of social media behaviour that is less aligned with the interests of the ACTU at a time of heightened emotions within the community arising from the Covid-19 pandemic, which has created a challenging environment for police forces around Australia. The Applicant displayed an impressive lack of insight by contending otherwise. I am satisfied that the Applicant’s conduct was contrary to the ACTU’s Code of Conduct in that it was contrary to the ACTU’s interest and that he failed to conduct himself in public in a manner that did not reflect adversely on the ACTU.

[136] With respect to the Met Gala Post, I am not persuaded that the post breached the values, policies, or public position of the ACTU. It is unequivocally critical of the Met Gala event and all that the Applicant believes that event represents. It (the post) also uses colourful imagery and hyperbole (“flaming sword/righteous hammer to exterminate”) to convey the Applicant’s distaste for the event and global liberal capitalism. I do not accept that it is a literal call to violence or to cause harm to minority groups.

[137] The Trans Gender Post is directed at a minority group and what the Applicant describes as a world-wide agenda to harm children. While the Applicant claims that it does not attack an individual or a group of individuals, that claim is in my view unsustainable. The post is directed squarely at persons identifying as transgender or transexual and uses language that is aggressive, demeaning and belittling of that group. The post was made by the Applicant in full knowledge of the ACTU’s public support for the LGBTQI+ community and follows a training program, which he attended, that was run by the ACTU for all its staff earlier in 2021 which in part covered forms of sexual harassment, sexual and domestic violence.

[138] I am satisfied that the Trans Gender Post was in breach of both the ACTU Code of Conduct and the Harassment, Discrimination & Workplace Bullying Policy (June 2016). The post had the potential to adversely reflect on the ACTU’s reputation and the content of the post was both harassing and discriminatory in my view.

[139] Turning to the Kyle Rittenhouse posts, the Applicant’s support for Mr Rittenhouse is made plain. His defence of the posts is that Mr Rittenhouse was a concerned citizen who took steps to support law enforcement officers in Kenosha, Wisconsin USA who were dealing with civil unrest following the non-fatal shooting of black man Jacob Blake, by a white police officer. That Mr Rittenhouse carried a semi-automatic weapon into the midst of violent civil unrest may seem odd to many people in Australia, it was not against the law in Wisconsin. The sad outcome was that two protestors were shot dead by Mr Rittenhouse. While charged with two counts of homicide and other various charges Mr Rittenhouse was acquitted of the charges that were pressed on the basis that he acted in self-defence.

[140] While on one view the Applicant’s post might be seen as supporting violent vigilantism, it is unclear to me what ACTU policy or public position the post is said to conflict with. That many, if not a majority in the Australian community, would view Mr Rittenhouse’s conduct as anathema to responding effectively to civil unrest in an Australian context, does not mean the Applicant is prevented from stating his support publicly, where that support does not collide with obligations to his employer. That the ACTU may find the Applicant’s views in respect of Mr Rittenhouse objectionable may be understandable from an Australian perspective, but that is beside the point. It has not satisfactorily articulated where the Applicant’s stated support for an individual acquitted of alleged crimes in the USA is contrary to its policies, public position, or other terms of his contract of employment, both explicit and implied.

[141] As set out above I have found that a number of the Applicant’s Facebook posts were in breach of the ACTU policies as well as being contrary to public positions of the ACTU. The Applicant variously contends that his social media and Slack posts did not constitute misconduct let alone serious misconduct, including for the following reasons which I deal with below.

[142] The Applicant states that his Facebook posts were well-grounded in his “lived reality” and can be proven and justified as valid, credible, and sincere political, religious, and cultural exhortations and satirical commentary and critique. I have no doubt that the Applicant genuinely believes in the merit of his posts. A right to hold and express a strongly held views does not however mean the Applicant has an unqualified right to publicly espouse views that are contrary to the interests and values of his employer. As to his defence that the posts were satirical, that does not mean the posts were any less objectionable when measured against the ACTU’s policies and public positions.

[143] The Applicant further claims that none of the posts ought be considered wilful or deliberate behaviour inconsistent with the continuation of his employment having regard to the absence of relevant express terms of his contract of employment, the 2018 Agreement and its incorporated policies and procedures. As I have already stated, the Applicant was covered by express provisions of various policies, which by posting certain content, he breached.

[144] Even if the Applicant were correct in his submission regarding the application of the policies, such that they did not apply to his employment, I am nonetheless satisfied that he would also be in breach of his implied duty of fidelity towards his employer. The following was said by the High Court in Blyth Chemicals v Bushnell 107

“Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal (Boston Deep Sea Fishing and Ice Co. v. Ansell; English and Australian Copper Co. v. Johnson; Shepherd v. Felt and Textiles of Australia Ltd.) [footnotes omitted].” 108

[145] The Applicant also contends that the Facebook posts and all his behaviour in his work and private life were legal and protected under both the Victorian Human Rights Charter (ss14 and 15) (the Charter) and the Fair Work Act 2009 anti-discrimination provisions (s.351) and thus were protected as political, cultural, and religious opinions and beliefs. Those arguments which he raises in defence of his conduct must be rejected. The Charter is not relevant as it applies to the Victorian Parliament, courts and tribunals and public authorities.

[146] As regards the operation of s. 351 of the Act, that section of the Act sets out the grounds on which an employer is prohibited from taking adverse action against employees or prospective employees. The inference I draw from the Applicant’s submission is that the ACTU is prohibited from taking adverse against him by reason of his ethnic status, religious beliefs, sex, and political opinion. The Applicant’s arguments and supporting evidence are not well developed on this point and in any case his application has been pressed based on an unfair dismissal, not a general protections dismissal dispute pursuant to s.365 of the Act.

[147] He also claims that the Facebook posts were not a call to violence or action to discriminate against anyone and were not transphobic, homophobic, antisemitic, or disparaging of CALD groups or victims of domestic violence. I disagree for the reasons set out above in my consideration of the various posts. The posts variously applauded violence against a police officer, mocked domestic violence, expressed racist sentiments, vilified transgender and transexual persons and used language that was homophobic.

[148] I accept that the Applicant did not hold a senior role in the ACTU, that he may have held a low profile with ACTU affiliates or union members and that he did not have a large Facebook group. Those factors do not mean there was no risk of reputational damage to the ACTU or risk to its staff. The Applicant’s Facebook account was public and open to be shared and circulated well beyond his immediate circle of ‘friends.’ Once the posts were made, they were in the public domain unless and until their removal. There is also a certain tension in the Applicant’s claim of relative obscurity while at the same time claiming to have a commitment of “speaking truth to power.”

[149] The Applicant claims that his Facebook posts “speak truth to power” and cannot be labelled as offensive and do not unfairly or unreasonably offend, humiliate, intimidate belittle, undermine, scare, exclude, or embarrass anyone. The difficulty with this argument is that it the Applicant’s opinion as to how other persons might view his posts. Whether they are objectively offensive is irrelevant as it is whether the views expressed are contrary to his obligations under his contract of employment. As set out above, a number of the Facebook posts were in breach of his contract of employment.

[150] Similarly, he claims to have been speaking out against NGOs and government agencies promoting castration, hormonal disfunction and paedophilia which is not a threat to anyone’s health and safety but is the opposite of that. It is not the fact that the Applicant may seek to speak out against what he regards as the evils of modern society and global liberal capitalism, it is that he has done so in some of his posts in a demeaning, vilifying and belittling manner that targets minority groups. That conduct as I have already found above was contrary to his contract of employment.

[151] The Applicant makes the point that his Facebook posts are similar to the content of letters to the editor authored by him (and published) for which he was not warned or counselled. I disagree. The letters to the editors produced in evidence, while potentially at odds with the prevailing political views held within the ACTU, do not include the tone and language of the type found in the Facebook posts considered above.

[152] The Applicant further claims that his Facebook posts would be supported by a large cohort of reasonable people in Australia. That may well be true, and I suspect there would also be a large cohort of reasonable people in Australia who would find the Applicant’s views objectionable. That is not the point, however. Whether the Facebook posts establish a valid reason for his dismissal is not to be determined by the conduct of a theoretical ‘straw poll.’ Rather, the gravity of the conduct is to be assessed by reference to the express and implied requirements of the Applicant’s contract of employment and the applicable policies of the ACTU.

[153] The Applicant contends that social media posts of other staff and former staff members of the ACTU were of a similar tenor to the Applicant’s and that consequently the ACTU has engaged in double standards by singling out his posts while tolerating other staff social media postings. I do not doubt on the evidence before me that there has at times been robust dialogue between staff inside the ACTU and by its staff on public social media. Some of the cited examples are dated including a post of its former Chief of Staff in 2009. As I observed during the hearing, what may have been routinely accepted banter in organisations and on social media a decade ago may no longer be acceptable. In any case, none of the examples of other staff social media posts attacked or vilified minority groups, applauded violence against police officers or championed anti-pandemic restriction protests.

[154] As to the Applicant’s claim that his Facebook account did not name his employer, identify his geographical location, or contain any posts critical of the ACTU or its affiliates, that submission has no merit in my view. Once the Facebook posts were made, they were public and liable to be viewed by other persons beyond his immediate Facebook group. That his Facebook profile was on a ‘public’ versus a ‘private’ setting indicates he was content for the posts to be shared. The vice and virtue of social media is that posts made by ‘obscure’ individuals can be circulated widely and quickly, far beyond the initial Facebook group to which they were initially made available to. The reality is that the Applicant had no control over the post’s circulation, short of removing the post.

[155] The Applicant also claims that ACTU management had engaged in a campaign of harassment and discrimination against him during his employment, the dismissal merely being the most recent in a series of events. I am not satisfied on the evidence that such a campaign has been made out by the Applicant for the following reasons;

(1) The 2018 warning arose from the Applicant’s challenge to a planned restructuring of the contract centre and resulting proposed redundancies in his capacity as an ASU delegate. The warning does not appear to have been issued in relation to his challenge to the restructure and redundancies per se but in respect of the manner of his communication. I note the actual material that provoked the warning was not in evidence. I am simply not able to draw any conclusions regarding the merit or otherwise of the Applicant’s complaint.

(2) The rejection of the Applicant’s study assistance support application in 2018 in the wake of the contract centre redundancy issue does not show an ongoing campaign of harassment and discrimination. The 2018 Agreement, which provides for such study support, does not guarantee that any employee making an application will have their application approved. The reasons for the rejection related to the perceived relevance of the course and the lack of alignment between the Applicant’s behaviours and the ACTU direction and values.

(3) As to the campaign for tea money for casual employees, it is entirely unremarkable that claims made by employees and their representatives were resisted by their employer, in this case the ACTU. That the claim may have been acceded to does not establish evidence of an ongoing campaign against the Applicant simply because of his involvement as a delegate.

(4) The complaint that the Applicant was discriminated against because of his exemption from complying with a Covid pandemic restriction, that of wearing a face mask in the office, is without merit. The unchallenged evidence of Alex White was that he was unaware of the Applicant’s medical exemption until the issue of his not wearing a mask in the office was raised with the Applicant by a H&S representative at Alex White’s request.

(5) As to the Applicant’s complaint’s that he was directed to give potentially unlawful advice in response to public inquiries regarding Covid-19 vaccination, that also has no merit in respect of his claims of discrimination and harassment. I accept that the Applicant had concerns regarding the ACTU’s public position of encouraging vaccination and supporting pandemic restrictions and mandates were implemented on advice of public health experts. That he was advised by Alex White to encourage persons ringing up the ACTU for advice, to get vaccinated, is unremarkable given the ACTU’s public position. There is also no evidence that the advice the Applicant was asked to provide was any different to the advice other staff were required to provide.

(6) The 2021 Warning was said by the Applicant to be evidence of a continuing campaign against him. While the Applicant challenges Alex White’s interpretation of the materials placed on and around the Applicant’s desk, it is not in dispute that the Applicant was asked to remove items that Alex White regarded as inappropriate. As a senior Manager of the ACTU, such a direction was within Alex White’s authority. That the Applicant failed to comply with what appears to me to have been a reasonable direction led to the 2021 Warning. The Applicant claims to have put the issue of the warning into dispute although Alex White regarded the matter as closed given the ultimate removal of the items by the Applicant. There is nothing before me to suggest that the 2021 warning was issued as part of an ongoing campaign of harassment and discrimination.

(7) Finally, the Applicant claims that he was directed in the 2021 Warning to breach the then Covid Lockdown restrictions to remove the remaining items on and around his desk that Alex White took exception to. At the time the warning was issued on 9 September 2021, it was understood that the 7-day lockdown then in place in Melbourne would be lifted at 11.59pm on 12 September 2021, allowing a return to the office on 13 September 2021 which would have enabled the Applicant to comply with the requirement to remove the items by the close of business on 13 September 2021. The lockdown was extended in the intervening period to beyond the 13 September 2021. That matter was raised by the Applicant with Alex White resulting in the deadline for removal of the items being adjusted to the first workday following the lifting of the lockdown. In these circumstances, the Applicant’s claim that the direction was unlawful and/or unreasonable is devoid of merit.

[156] The Applicant also says he was not directed to remove the Facebook posts of concern, which he says undermines the ACTU’s stated concern over health, safety, and reputational risk. There is some merit to this contention, although it is undermined by the conduct having already occurred. The removal of the posts may have avoided further potential harm but does not remedy the original breaches of the Applicant’s contract of employment that I have identified above.

[157] The fact that the Applicant’s Facebook posts did not go ‘viral’ nor generate any complaints from ACTU staff, ACTU affiliates or members of the public is raised by the Applicant as a further reason the posts could not be regarded as serious misconduct. In my view that submission is misconceived. The submission is akin to an argument made in defence of an employee dismissed for a serious and wilful safety breach that did not cause injury or harm. It is the gravity of the breach and the potential for harm that requires consideration in my view rather than the end consequence alone.

[158] Returning now to the social media posts which I have found were in breach of the Applicant’s contract of employment. The relevant Facebook posts were the;

(1) Fuck the Jab Post;

(2) Rights Post;

(3) Police Assault Post; and

(4) Trans Gender Post.

[159] In assessing the gravity of that conduct, it is necessary to consider the context in which the Facebook posts were made. The Applicant was employed by the ACTU, Australia’s peak trade union body, an organisation that has been at the centre of Australia’s workplace relations landscape and progressive social agenda developments for almost a century. As the unchallenged evidence of Alex White reveals, the ACTU places critical reliance on its reputation and brand. Research undertaken by the ACTU also confirms that workers who are members and/or potential members of ACTU affiliates strongly value consistency of the ACTU’s conduct (and that of its employees) with its stated values, public positions, and policies. A disconnect is likely to erode trust and credibility in the ACTU with a consequent negative impact on the ACTU and its affiliates capacity to attract and retain support of workers and the community more broadly.

[160] Significantly for the purposes of the present matter, the ACTU has been and remains active in publicly advocating, supporting, and promoting a range of progressive social agenda issues including in the areas of diversity, racism, domestic violence and LGBTQIA+, all of which was well known to, and understood by the Applicant. More recently, the ACTU has supported Covid-pandemic measures including encouraging vaccination and compliance with government directions and mandates where implemented on advice of public health experts. While the Applicant disagreed with the ACTU’s public position on Covid pandemic measures, he well understood the ACTU’s position.

[161] The various Facebook posts of the Applicant cannot be attributed to his ignorance of or misinterpretation of the ACTU’s public position on a range of matters. Rather, the posts were made by the Applicant in full knowledge of the ACTU public position and to that extent were wilful and deliberate.

[162] In applying the principles of Rose v Telstra to the Applicant’s out of hours conduct I accept that there is no evidence that the conduct actually damaged the ACTU’s interest. I am however satisfied that;

•  the conduct is such that, viewed objectively, it is likely to cause serious damage to the relationship between the ACTU and the Applicant; and

•  the conduct is incompatible with the employee's duty to the ACTU.

[163] Having regard to the context in which the Facebook posts occurred, I am satisfied that the conduct of the Applicant constitutes serious misconduct by reason of the Applicant’s breach of explicit policies of the ACTU that he was bound to comply with under his contract of employment. I am also satisfied that the Applicant’s conduct satisfies the definition of Serious Misconduct found at Reg 1.07 of the Fair Work Regulations 2009 (the FW Regs) in that the conduct was wilful and deliberate behaviour that was inconsistent with the continuation of the contract of employment. Further it was conduct that caused a serious and imminent risk to the reputation of the ACTU.

[164] It follows form the above that I am satisfied that the Applicant’s conduct establishes a valid reason for his dismissal. This weighs in favour of a finding that the dismissal was not unfair.

Notification of the valid reason – s.387(b)

[165] 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,¹⁰⁹ and in explicit¹¹⁰ and plain and clear terms¹¹¹.

[166] I am satisfied that prior to the meeting on 22 September 2021 the Applicant was notified of the ACTU’s general concerns regarding his social media posts and that his future employment was being considered. I am also satisfied that at the outset of the meeting Alex White explained that a series of Facebook posts of the Applicant were considered unacceptable in the context of his employment with the ACTU, the posts were incompatible with ACTU values and could damage the ACTU’s reputation. The Applicant was further advised that the posts could constitute serious misconduct, that the meeting was to give him an opportunity to respond and that his future employment was being considered. At the conclusion of the meeting, the Applicant’s responses were then considered by Alex White and Sarah Mitchell and a recommendation to dismiss the Applicant was agreed between them, then made to and accepted by the ACTU Executive Officer.

[167] I am satisfied that that the valid reason for the Applicant’s dismissal was notified to the Applicant before a decision to terminate his employment had been taken. This weighs in favour of a finding that the dismissal was not unfair.

Opportunity to respond to any reason related to capacity or conduct – s.387©

[168] 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 employment¹¹².

[169] 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 fairly¹¹³. 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 requirements¹¹⁴.

[170] The Applicant was invited to respond at the meeting conducted on 22 September 2021 to the concerns held by the ACTU regarding his Facebook posts. This was done by Alex White sharing the posts of concern during the Zoom meeting and then inviting the Applicant to explain each of the posts and how they were compatible with his employment with the ACTU and its values. While it was stated to the Applicant at the outset of the meeting that the posts were incompatible with the ACTU values and could damage the ACTU’s reputation, Alex White did not provide or articulate to the Applicant which values the posts were said to be inconsistent with, how they were inconsistent with those values and which if any policies or contractual terms the conduct was said to be breach of.

[171] It is also the case that the Applicant’s request for the allegations be put in writing was declined by the ACTU on the basis, according to Sarah Mitchell, that the matter could not then have been dealt with in a timely manner. I found that explanation unsatisfactory. It is difficult to see how a short delay to allow for the allegations to be put in writing to enable a considered response by the Applicant would have been problematic, particularly in circumstances where the Applicant had offered to remove the Facebook posts of concern.

[172] Having regard to the above, I am not satisfied that the Applicant had a proper opportunity to respond. While not essential for misconduct allegations to be put in writing to render a dismissal process fair, it must be said that the time between the Facebook posts becoming known and the decision to dismiss being taken was less than 24 hours. While the time period is not necessarily critical, what is of greater significance in my view is the absence of detail put to the Applicant as to the applicable policies and values that the conduct was said to be in breach of. That detail should have been put to the Applicant and was not. The failure of the ACTU to put the detailed allegations to the Applicant denied the Applicant an opportunity to respond to the reason related to his conduct relied on by the ACTU to dismiss him.

[173] Having regard to the matters referred to above, I find that the Applicant was not given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made. This weighs against a finding that the dismissal was not unfair.

Support person – s.387(d)

[174] 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.

[175] 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.”115

[176] The Applicant was accompanied by a support person in the disciplinary meeting conducted via Zoom on 22 September 2021. In the circumstances this criteria is a neutral consideration.

Warnings regarding unsatisfactory performance - s.387(e)

[177] The dismissal did not relate to unsatisfactory performance. This factor is therefore not relevant in the circumstances.

Impact of the size of the Respondent on procedures followed - s.387(f)

[178] The ACTU’s Form F3 - Employer Response indicates that at the time of the Applicant’s dismissal it employed approximately 97 employees. There is no evidence before me, and nor did either party contend, that the ACTU organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.

Impact of absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[179] The ACTU is an organisation that includes legal and workplace relations specialists. This factor therefore weighs neutrally in my consideration.

Other relevant matters – s.387(h)

[180] The Applicant contends that there are a number of other matters that are relevant to assessment of whether the dismissal was unfair Those matters which are said by the Applicant to go to the harshness of the dismissal are as follows;

•  the failure of the ACTU to follow the implied terms of the 2018 Agreement in respect of procedural fairness;

•  the ACTU has not applied the same level of scrutiny to other staff members and their social media behaviour thereby engaging in double standards;

•  potential violation of s.351 of the Act;

•  a dismissal at a time of economic upheaval, rolling lockdowns and vaccine mandates was clearly designed to be malicious;

•  a summary dismissal over legally protected Facebook posts and a mild Slack post against a backdrop of adverse action and discrimination;

•  a good work history; and

•  a level of political bias held against the Applicant.

[181] Turning to the first point raised by the Applicant, the 2018 Agreement includes at clause 24.1.1 a provision that states;

“The ACTU will not terminate the services of an employee in circumstances which are harsh, unjust, or unreasonable.” 116

[182] The only reference to serious misconduct is at clause 24.2 where it states that;

“If the ACTU terminates the employment of an employee for serious misconduct, the ACTU need not give advance notice nor pay for more than the time actually worked.” 117

[183] When pressed during his oral evidence on this point the Applicant was unable to identify any other obligation, either explicit or implied contained within the 2018 Agreement, that dealt with processes to be followed by the ACTU in relation to disciplinary action. I accept however that clause 24.1.1 confirms that dismissals will be carried out in a manner that is consistent with the approach required to be considered under s.387 of the Act. Whether the ACTU has failed to comply with that term is the very matter that is subject to my consideration and is not an additional matter that weighs in favour of a finding of harshness.

[184] As to the claimed double standards, the Applicant directed my attention to social media posts of other staff (current and former). As previously stated above, the posts to which I was taken were qualitatively different to the Applicant’s posts. I also note Alex White’s evidence that has had reason to discipline other staff for their social media posts and has reviewed other staff members’ Facebook accounts. I am unable to conclude that a double standard is in place in terms of the ACTU’s treatment of the Applicant.

[185] I have previously dealt with the s.351 point and do not regard it as relevant in the proceedings before me. As to a claimed campaign of harassment and/or discrimination. I am not persuaded that such a campaign was waged against the Applicant for the reasons previously set out. As to the claimed good work record, Alex White confirmed that the Applicant’s work performance was unexceptional, either in a positive or negative way. I do however note the existence of the prior warnings, albeit the Applicant challenges both. In terms of the claimed political bias, the Applicant’s own evidence revealed that he had posted without personal repercussions, a number of letters to the editor that revealed his political views to be possibly out of step with those of his colleagues and the ACTU generally. None of these matters weigh in favour of a finding of harshness in my view.

[186] Turning to the consequences of the Applicant’s dismissal in the context of rolling lockdowns, vaccine mandates and economic upheaval. The following may be said. The last lockdown in Melbourne ended on 21 October 2021 although the lockdowns in regional Victoria where the Applicant resides ended earlier than that in September 2021. Notwithstanding the period of rolling lockdowns up until October 2021, unemployment rates in Melbourne and regional Victoria are at historically low levels, For example the Bendigo unemployment rate in December 2021 was at 3.8%, a level not seen in the past 15 years. I accept however that many occupations remain subject to vaccination mandates which may impact on an unvaccinated person’s capacity to secure employment.

[187] On the Applicant’s own evidence, he has made limited efforts to secure ongoing employment since his dismissal, explaining his efforts since his dismissal as including taking a break, preparing his materials for this matter, working on house renovations, helping his brother set up a horticulture business on the Mornington Peninsular and more recently he has undertaken some casual kitchen hand work. He also expressed in his evidence a reluctance to pursue similar roles to that he held at the ACTU until the present matter is resolved 118. I acknowledge the candour of the Applicant in describing his job seeking efforts since his dismissal. However, his lack of job seeking undermines his submission as to the harshness of the dismissal.

[188] Considering the relative strength of the current job market in Melbourne and regional Victoria, the apparent cessation of the Victorian government’s use of lockdowns as a routine pandemic measure and the Applicant’s inaction in securing alternate employment, all these matters weigh against the dismissal being harsh in the circumstances.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable? 

[189] I have made findings in relation to each matter specified in s.387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable⁵⁶. 

[190] As set out above, I am satisfied that a valid reason for the Applicant’s dismissal related to his conduct has been established but that the disciplinary process followed by the Respondent was procedurally unfair. The dismissal was not related to the Applicant’s performance and the size and capacity of the Respondent did not impact on the procedures that it followed and as such these matters weigh neutrally in my consideration of whether the dismissal was unfair. No other matters raised by the Applicant weigh in favour of a finding that the dismissal was unfair.

[191] In considering the only factor weighing in favour of a finding that the dismissal was unfair, that of the absence of a procedurally fair process, I place significantly less weight on this criteria than the presence of a valid reason. That is because even had the ACTU put the detail of the allegations to the Applicant in a more fulsome manner, I regard it as highly unlikely that a different outcome would have been reached. That is, because the Applicant has, throughout these proceedings, shown no insight into or contrition for his conduct. While strongly pressing his claim to have an unfettered right to espouse his personal views and beliefs outside of his normal working hours, he made no concession as to any obligations he owed to his former employer in respect of those Facebook posts. In these circumstances, I regard it as unlikely that any level of detail put to him during the disciplinary process would have altered his position or that of the ACTU.

[192] It follows from the above that having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable because there was a valid reason for the dismissal which outweighs those other factors I have identified. 

Conclusion

[193] 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 Act.  

[194] The application is dismissed. An Order will be separately issued giving effect to my decision. 

DEPUTY PRESIDENT

Appearances:

CJ Corry, Applicant.

S Kemppi for the Respondent.

Hearing details:

2022.
Melbourne (By Microsoft Teams):
January 27 and 28.

Printed by authority of the Commonwealth Government Printer

<PR738320>

 1   Exhibit R1, Witness Statement of Alex White, dated 17 December 2021.

 2   Ibid at [12].

 3   Ibid at [13]-[14].

 4   Exhibit R1, Annexure AW-2.

 5   Ibid.

 6   Ibid.

 7   Exhibit R1 at [17], Annexure AW-2.

 8   Ibid at [19].

 9   Ibid at [20].

 10   Exhibit R1 at [47].

 11   Exhibit R1, Annexure AW-2.

 12   Ibid at [24].

 13   Ibid at [26]-[29].

 14   Ibid at [33].

 15   Exhibit A2, Letter of employment dated 20 May 2015.

 16   Exhibit A3, Letter varying hours of work dated 27 April 2017.

 17   Exhibit R1 at [37].

 18   Exhibit R2, Witness Statement of Sarah Mitchell, dated 17 December 2021, Annexure SM-2.

 19   Exhibit R2, Annexure SM-1.

 20   Exhibit R2 at [8].

 21   Exhibit A9, Warning letter, dated 8 March 2018.

 22   Exhibit A1, Witness Statement of Conrad Corry at [24]-[29].

 23   Ibid at [32]-[34].

 24   Ibid at [36].

 25   Ibid at [37]-[38].

 26   Ibid at [164]-[170].

 27   Exhibit A18, Slack post exchange – “AW Exclusion of CJC in Public Channel (May 11 2021)” .

 28   Exhibit A17, Email from Applicant to ACTU staff re face mask exemption, dated 5 July 2021.

 29   Exhibit A10, Formal warning - inappropriate desk material, dated 8 March 2021.

 30   Ibid, Annexure AW-14, AW-15, AW-16.

 31   Exhibit A13, photos of materials on Applicant’s desk.

 32   Exhibit A11, Conrad Corry’s Formal Response to Warning Letter, dated 11 August 2021.

 33   Exhibit A1 at [65]-[67].

 34   Exhibit R1 at [126]-[131], Annexure AW-18, Email from Alex White to Applicant, dated 13 August 2021.

 35   Exhibit A16, Slack Vaccination exchange between Applicant and Alex White.

 36   Exhibit A2.

 37   Exhibit R2, Annexure SM-2.

 38   Exhibit R2, Annexure SM-3, ACTU Code of Conduct.

 39   Exhibit R2, Annexure SM-4, ACTU Complaints & Investigation Policy.

 40   Exhibit R2, Annexure SM-5, Gendered Violence and Harassment Policy.

 41   Exhibit R2, Annexure SM-6, ACTU Workplace Harassment, Discrimination and Workplace Bullying Policy.

 42   Exhibit R2, Annexure SM-7, ACTU Social Media Policy.

 43   Exhibit R2 at [13].

 44   Exhibit R2, Annexure SM-8.

 45   Exhibit R2, Annexure SM-9, dated June 2016.

 46   Exhibit R2, Annexure SM-10, dated June 2016.

 47   Exhibit R2, Annexure SM-11, Email from Ben Davison to ACTU staff, dated 11 November 2016.

 48   Exhibit R2, Annexure SM-8 at clause 2.1.

 49   Ibid at clause 2.2.

 50   Exhibit A9.

 51   Exhibit R2, Annexure SM-14 – Compulsory staff training email from Sally McManus, dated 13 April 2021.

 52   Exhibit R1 at [22].

 53   Ibid.

 54   Exhibit R2 at [26].

 55   Exhibit A1 at [16].

 56   Exhibit R1, Annexure AW-3, Slack post by Applicant. Dated 21 September 2021.

 57   Exhibit A19, Slack post – “tin foils 11-08-21”.

 58   Exhibit A20, Slack post – “Growth Zoom 18-08-21”.

 59   Exhibit A21, Slack post – “Stick dem needles in dem babies”.

 60   Exhibit R1, Annexure AW-4, Facebook post 21 September 2021.

 61   Exhibit R1, Annexure AW-2.

 62   Ibid.

 63   Exhibit R1, Annexure AW-6, Facebook post, dated 19 September 2021.

 64   Exhibit A24, Definitions of ‘globohomo’.

 65   Exhibit R1, Annexure AW-7, Facebook post, dated 20 September 2021.

 66   Exhibit A1 at [307]-[308].

 67   Exhibit R1, Annexure AW-8, Facebook post, dated 17 September 2021.

 68   Exhibit A1 at [344].

 69   Ibid at [341].

 70   Ibid at [347].

 71   Ibid, Annexure A15, Social media posts of ACTU staff.

 72   Exhibit R1, Annexure AW-9, Facebook post, dated 14 September 2021.

 73   Exhibit A1 at [355].

 74   Ibid at [357]-[359].

 75   Exhibit R1, Annexure AW-10, Facebook post, dated 2 September 2020.

 76   Exhibit R1, Annexure AW-11, Facebook post, dated 19 May 2021.

 77   Exhibit A1 at [370].

 78   Ibid at [177]-[182].

 79   Exhibit A22, Various letters to the editor.

 80   Exhibit R1, Annexure AW-12, Email exchange between Alex White and Applicant, dated 21 September 2021.

 81   Exhibit A1 at [255]-[256].

 82   Exhibit A1 at [260].

 83   Exhibit R2, Annexure SM-15, Disciplinary meeting notes, dated 22 September 2021.

 84   Exhibit R1 at [57].

 85   Exhibit R2 at [38]-[39].

 86   Ibid at [40]

 87   Ibid at [44]-[45]

 88   Exhibit A6, Termination of employment letter, dated 22 September 2021

 89   MA000002.

90 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

91 Ibid.

92 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 93   Print Q9292 [1998] AIRC 1592 (4 December 1998).

 94   [2016] FWC 1460.

 95   (1996) 70 FCR 16.

 96   Ibid at [61].

 97   [2013] FWC 9642.

 98   Ibid at [69]-[75].

 99   [2011] FWA 5311.

 100   Ibid at [41]-[44].

 101   [2016] FWC 6186.

 102   Ibid at [284]-[286].

 103   [2010] FWA 7358.

 104   [2014] FWC 446

 105   Ibid at [46]-[47]

106 Exhibit R2, Annexure SM-7, ACTU Social Media Policy.

 107   (1933) 49 CLR 66

 108   Ibid at p. 81

109 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

110 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

111 Ibid.

112 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].

113 RMIT v Asher (2010) 194 IR 1, 14-15.

114 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

115 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

 116   Exhibit A4.

 117   Ibid.

 118   Exhibit A1 at [430]-[437].