Note: An appeal pursuant to s.604 (C2010/4307) was lodged against this decision - refer to Full Bench decision dated 22 October 2010 [[2010] FWAFB 7802] for result of appeal.

[2010] FWA 4744

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

Mr Steve Leigh aka Wilson
Nestle Australia Limited T/A Uncle Tobys


SYDNEY, 25 JUNE 2010

Termination of employment.

[1] This is an application by Mr Wilson pursuant to s384 of the Fair Work Act 2009. I heard the application in Albury on 23 and 24 February 2010. It was agreed that the jurisdictional objection would be heard at the same time as the merits of the substantive application. Mr Wilson did not seek reinstatement. He sought compensation.

[2] Mr P Whelahan of Counsel, instructed by Mr C Taylor of the Australian Industry Group (AIG), appeared for Nestle Australia Limited T/A Uncle Tobys (Uncle Tobys). Mr Wilson represented himself.

[3] Uncle Tobys’ Wahgunyah site employs approximately 700 persons, of whom approximately one third are female. Mr Wilson commenced employment at that site in June 2002 as a casual employee. The last day he worked was 16 April 2009.

[4] Mr Wilson was not the subject of any verbal or written warnings arising from either his conduct or his performance during the course of his employment. He worked pursuant to a written contract of employment. 1

[5] Mr Wilson’s evidence was that his work was variable with breaks rarely exceeding a month, although there were rare occasions where there were breaks of up to 2 months. His evidence was that he worked at least once a week for 40 – 46 weeks in any one year. 2

[6] Mr Wilson was one of a number of casual employees on a list of casuals who would be called in to cover absences or peaks in production. 3 There were some work areas which could have requested a particular employee in the past but that practice had ceased at the time of the hearing.

[7] Casuals are regularly recruited and trained to maintain casual list numbers. When they are newly recruited these casuals are given work with a buddy to give them experience. This can lead to a downturn in the work which is available for casual employees with longer periods of service. The evidence of the witnesses for Uncle Tobys was that when a need for a casual arises the relevant manager runs down the list of casual employees telephoning them to see who is available for work. Sometimes as many as 30 telephone calls are made before a casual is engaged. 4

[8] In 2007 Mr Wilson was charged with various criminal offences. On 23 April 2009 he was found guilty in relation to 8 of those charges. His trial and this outcome was reported in the local press. Mr Wilson immediately appealed the sentence imposed in relation to 3 of those convictions. He appealed the remaining 5 of those convictions as to the conviction as well as the sentence. At the time of the hearing before me Mr Wilson was awaiting the result of all of those appeals.

[9] Since I reserved my decision Mr Wilson has informed me that his appeals were unsuccessful and that he is now incarcerated. The convictions from which there was an appeal as to sentence only were convictions for harassment by post involving the forwarding of pictures of a penis to a female at her place of work in an architectural office, harassment by post involving the forwarding of pictures of a nude female on a CD disc, which was posted to a police officer’s daughter, and stalking of a male person. The 5 matters on which there was an appeal as to conviction and sentence involved stalking, making and producing child pornography and possession of child pornography.

[10] Mr Wilson’s evidence was that he was not offered any work at Uncle Tobys after 16 April 2010 even though work was available and he contended that this was because of Uncle Tobys’ knowledge of his convictions.

[11] This evidence was contradicted by Mr McMillan who is a Site Shift Line Manager at Wahgunyah. His evidence was that he had called Mr Wilson on a number of occasions after his Court case had been reported in the press. 5

[12] Mr Gillman, who is also a Site Shift Line Manager, gave evidence that he called Mr Wilson on at least 3 occasions in April and May 2009 to ask whether he could cover an unplanned absence. He spoke to Mr Wilson’s mother who said that he was not available. Mrs Wilson has dementia and Mr Wilson is her carer.

[13] In June 2009 Mr Wilson’s security access card was deactivated. He was not made aware of this. He discovered this action had been taken against him when he attended the site to collect some personal possessions and was denied access.

[14] Mr Ressom, the Human Resources Co-ordinator, was asked about what he expected would occur if Mr Wilson was offered work by a Shift Line Manager and then denied access to the site. 7 Mr Ressom agreed that deactivating the access card effectively terminated Mr Wilson’s employment.8 He also agreed that it was not fair not to give Mr Wilson a right of reply to the actions against him.9

[15] Ms Carol Oswin-Bateman, the Site Manager, gave evidence that although she was not happy for Mr Wilson to be at work she did not instruct anyone not to offer him work. 10

[16] Mr Pascall, the Site Human Resources Manager, stated that his reason for preventing Mr Wilson’s access to the site arose from his concern for the health and safety of other employees. There is a significant unexplained delay if those were Mr Pascall’s reasons. Mr Wilson’s convictions occurred in April and were reported in the press in April. Two National Union of Workers’ (NUW) officials met with management regarding Mr Wilson’s conduct towards female employees in March. I deal with this meeting later in this decision. Despite these events nothing was done to deal with Mr Wilson until June. Even then the action taken was equivocal. In the meantime, Mr Pascall conceded that if Mr Wilson had been called and attended work Uncle Tobys would have had to pay him but they would not have let him in. The evidence of the Shift Line Managers was that Mr Wilson was being offered work. The fact is that Uncle Tobys’ management were prevaricating. I have concluded that Uncle Tobys were hoping Mr Wilson would not be offered work until he went to gaol and that that would take care of the problem.

(my emphasis)

[17] Mr Wilson filed this application on 14 July 2009 alleging unfair dismissal on 7 July 2009. After Mr Wilson had filed and served this application Uncle Tobys removed him from the casual employees data base thereby confirming the defacto suspension of his employment in June 2009.

[18] Unbeknownst to Mr Wilson there had been a conference between two Union officials, Ms Oswin-Bateman and Mr Pascall in March 2009. The Union officials were Brad Dobson, the local organiser for the NUW and Mr Neil Smith, a site delegate for the NUW. Mr Smith has since replaced Mr Dobson as the local organiser. Ms Oswin-Bateman gave the following evidence as to what was reported by the Union officials.

[19] Uncle Tobys took note of these matters and I accept that the relevant managers were generally concerned, but they took no steps to deal with the issue beyond deactivating Mr Wilson’s access card. It is clear that Uncle Tobys’ management felt hamstrung by the failure of the complainants to identify themselves. 13 As a result Mr Wilson was never alerted to the possibility that any employee found his behaviour offensive or objected to working with him.

[20] In relation to the complaints made by the NUW it would have been possible, as well as generous, fair and reasonable, to issue a notice identifying the type of conduct complained of as misconduct; to outline the consequences of such conduct; to encourage any employee affected by such conduct to come forward; to provide information sessions as to the type of conduct identified as misconduct; to outline penalties which might flow from such misconduct; to alert supervisors to the likelihood of such misconduct and their obligation to prevent it; and importantly, to offer counselling to any employee who recognised their own conduct as such possible misconduct, thereby allowing them the opportunity to discuss their conduct and be counselled.

[21] In the end, because the NUW did not identify the complainants, Uncle Tobys did none of these things. This was not good enough either for the women affected or for any employee, including Mr Wilson, who may have engaged in conduct outside the acceptable standards.

[22] The first question which arises for determination is whether Mr Wilson was dismissed from his employment by Uncle Tobys and on what date? Mr Wilson submits that Uncle Tobys’ combined actions in deactivating his pass and in removing him from the casual roster amounted to the termination of his employment at the initiative of Uncle Tobys. 14 I am satisfied that Mr Wilson was dismissed from his employment on the initiative of Uncle Tobys on 14 July 2009 when he was removed from the casual roster. I consider the deactivation of Mr Wilson’s access pass in June 2009 to be a suspension of employment during which period Uncle Tobys were prepared to pay Mr Wilson if he had been called in to work but was unable to gain access.

[23] Mr Whelahan conceded that if I concluded that there was a termination of employment on 14 July 2009 I could amend the application appropriately, continue to hear the application and make appropriate findings to determine the issues in dispute. In the circumstances I have decided to follow this course. I intend to deal with this application on the basis that Mr Wilson was dismissed on 14 July 2009 and consequently apply the provisions of the Fair Work Act 2009 which I have extracted below.

[24] For the purpose of considering remedy, if appropriate, the following is the legislative framework:

390 When FWA may order remedy for unfair dismissal

[25] The second question which arises for determination is whether Mr Wilson was employed by Uncle Tobys as a casual employee on a regular and systematic basis within the meaning of ss384(2)(a) (i) and (ii). I am satisfied that Mr Wilson was such an employee.

[26] The conditions of employment in Mr Wilson’s contract are consistent with casual employment as a casual employed on a regular and systematic basis. In this regard I particularly refer to Clause 3 Availability and Contactability, Clause 6 Leave and Clause 10 Probationary Period. Casuals have particular obligations arising from this contact. The process of placing casuals on 4 week full time contracts when there is a peak in production is part of a very systematised arrangement.

[27] There is also a very well organised system for the appointment of casuals to shifts with a delegation of authority downwards to managers who telephone casuals. In 2008 Mr Wilson averaged 10 days of work a month and in 2009 he averaged 13 days of work a month. Mr Wilson had regular work and the expectation of regular work even though he anticipated that there would be periods without work. That was part of the system.

[28] I find that Mr Wilson was a casual employee of Uncle Tobys on a regular and systematic basis and that, during the period of his service as a casual employee of Uncle Tobys, Mr Wilson had a reasonable expectation of continuing employment by Uncle Tobys on a regular and systematic basis.

[29] The third question which arises for determination is whether or not the dismissal of Mr Wilson was harsh, unjust or unreasonable. The criteria in relation to this question are set out in s387 and I have taken the criteria into account where relevant.

[30] Firstly I have considered whether there was a valid reason for dismissal relating to Mr Wilson’s conduct, including the effect of his conduct on the safety and welfare of other employees. At the time of the termination of his employment Mr Wilson had not been convicted of any crime. As a matter of law, as soon as Mr Wilson lodged an appeal from any conviction, there was no conviction recorded. The convictions are suspended. This is also clear from the Court documents. This also applies to matters where there is an appeal as to sentence only. Following the hearing of his appeals it was possible that Mr Wilson could have been found guilty but have no conviction recorded in relation to all matters. These were of course all matters not resolved at the time of the decision to remove Mr Wilson’s access and then subsequently remove him from the casual pool of employees.

[31] The history of the matters before the Victorian Local Court had been reported in the local press. Management had notice of those reports. No-one sought to discuss the issues with Mr Wilson. Uncle Tobys decided to suspend Mr Wilson’s access pass and subsequently they removed him from their casual rostering database. This ensured, in relation to their first action, that if Mr Wilson was offered work he could not gain access to the plant and perform it and then, in relation to their second action, that he would be offered no more work. He was not provided with any opportunity to make submissions as to his guilt or innocence, as to what should flow from the fact of his trial in relation to these matters or, subject to his appeal rights, any conviction that might eventually follow. No matters in mitigation were considered. There was no opportunity provided.

[32] Since the termination of Mr Wilson’s employment, arising from information revealed whilst preparing its defence of this application, Uncle Tobys became aware of certain instances of alleged past misconduct by Mr Wilson. These instances of alleged misconduct are very much in the past. There is no evidence that the more recent conduct complained of by the Union involved the same complainants as the conduct referred to in the evidence before me.

[33] Uncle Tobys submitted that it is now able to rely on this alleged past misconduct as providing a valid reason for the termination of Mr Wilson’s employment either separately or when considered in conjunction with the present conviction of Mr Wilson following his unsuccessful appeals on the various criminal charges to which I have referred. It submits that the subsequent confirmation of Mr Wilson’s convictions which were originally reported in the press provides a valid reason for the termination of Mr Wilson’s employment.

[34] The past conduct which was revealed post termination of employment involved allegations of inappropriate remarks made to or about various female employees. Whilst I have no reason to reject the evidence of these witnesses their delayed allegations and evidence is very hard for Mr Wilson to answer and is unsatisfactory in this regard. If the first incidence of this alleged misconduct had been brought to the attention of management and dealt with, it is possible that Mr Wilson would have been warned or otherwise disciplined. If he had engaged in that misconduct and been warned he would have had an opportunity to adjust his conduct.

[35] Mr Wilson suggested that the witnesses called by Uncle Tobys in relation to this past conduct have heard of his convictions and have seized upon these matters for reasons of their own for the purpose of damaging him. Against this suggestion is Mr Whelahan’s submission that the evidence has been brought now to deal with these witnesses’ apprehension that Mr Wilson might be reinstated as a result of these proceedings. They did not know when the witnesses came forward that Mr Wilson would not be seeking reinstatement.

[36] I have decided that it is unsafe to rely on the material concerning the female complainants except as dealt with by Mr Cameron. I have a different view about the evidence of Mr Cameron. I have extracted his evidence below:

[37] Mr Cameron’s recollection appeared sound. He was not intimidated by Mr Wilson’s questioning and I do not consider he is likely to be motivated to give evidence by the threat of any possible future sexual misconduct towards him from Mr Wilson. I accept his evidence. I consider that the conduct of Mr Wilson identified by Mr Cameron was conduct which, had it been known on 14 July 2009, would have been a valid reason for the termination of Mr Wilson’s employment. It can be taken into account in my consideration of the application.

[38] Do Mr Wilson’s convictions in relation to conduct outside the workplace amount to a valid reason for the termination of his employment? This is not a straightforward question. Mr Wilson’s oral submission about this matter is set out in the following extracts from the transcript.

(my emphasis)

[39] Mr Wilson also submitted that it was difficult for him to get employment with a criminal conviction 17 and outlined his positive attitude towards his employment.18 He asked me to take these matters into account. I have done so.

[40] There is no general presumption that a criminal conviction is a valid reason for termination of employment. It is a matter to be decided on the facts of each case. The nature of the employment, the role of the employee and the nature of the offence are all relevant. The possible factual variations are likely to be as various as the number of possible employment relationships. In this case the convictions which led to Mr Wilson’s termination of employment did not occur in the workplace. Despite this I have concluded, without regard to the evidence of Mr Cameron or the complaints of the NUW, that Mr Wilson’s convictions provide a valid reason for the termination of his employment.

[41] The convictions relate to conduct of a sexual nature of a particularly offensive kind towards females, and this workplace has a significant female employment base. Mr Wilson is not a person of good character in this regard. In deciding this matter I have weighed the gender balance of the workplace, Mr Wilson’s established lack of good character arising from his convictions and Uncle Tobys’ obligations to provide a safe workplace for its employees as far as it is able to do so. I am satisfied that in all of the circumstances of this case Mr Wilson’s convictions are a valid reason for the termination of his employment.

[42] I have already found that Mr Wilson’s earlier conduct, as identified by Mr Cameron, provided a valid reason for the termination of his employment. It might have been harsh to have terminated Mr Wilson’s employment for this late identified conduct alone however I am satisfied that this conduct, as identified by Mr Cameron in conjunction with his convictions, provides a valid reason for the termination of his employment.

[43] I do not accept that the unspecified allegations of the NUW provided a valid reason for the termination of Mr Wilson’s employment.

[44] I have considered ss387(b) and have concluded that Mr Wilson was not notified of the reason for the termination of his employment.

[45] I have considered ss387(c) and have concluded that Mr Wilson was not given an opportunity to respond to the reason for his termination of employment that was related to his conduct.

[46] I have considered ss387(d), (e), (f) and (g) and I have concluded that they are not relevant to this application.

[47] I am directed by ss387(h) to consider any other matter I consider relevant. I have considered the submissions of Mr Wilson regarding his good attitude to his work and his enjoyment of it and the financially and socially disastrous consequences for him and his family arising from the termination of his employment.

[48] On balance I consider that Mr Wilson’s termination on 14 July 2009 was harsh, unjust and unreasonable. Uncle Tobys was a procedural fairness free zone in relation to Mr Wilson. Mr Wilson was entitled to an opportunity to consider and respond to Uncle Tobys’ grounds of concern regarding his continuing employment even if, in the end, Uncle Tobys was not likely to be persuaded. A reasonable process would have been to allow Mr Wilson an opportunity to respond to the newspaper articles and to put any matter that he wanted to put in mitigation. It might then have been appropriate to suspend him from the casuals list until resolution of the appeals. As Mr Wilson’s convictions were confirmed on appeal it would have then been appropriate for Uncle Tobys to have terminated his employment.

[49] I have concluded that an appropriate time to allow Mr Wilson to present his arguments would, at the most, have been four weeks. From that date Uncle Tobys would have been entitled to suspend, and then as events have developed, to have terminated his employment. In reaching this conclusion I have considered all of the material that is now available to me and was not available to Uncle Tobys at the time of the termination of Mr Wilson’s employment.

[50] I have examined the regularity of the work offered to Mr Wilson. I order Uncle Tobys to pay Mr Wilson ten days salary at the rate that was applicable to his pre termination of employment classification in the period 14 July 2009 to 14 August 2009.


 1   Exhibit Uncle Tobys 1 Attachment MR1

 2   Transcript PN740

 3   Transcript PN871 – PN872

 4   Transcript PN119

 5   Transcript PN2536 – PN2537

 6   Exhibit Nestle 9 para 13 and 14

 7   Transcript PN1102 – PN1124

 8   Transcript PN1124

 9   Transcript PN1186

 10   Transcript PN1251 – PN1263

 11   Transcript PN2243 – PN2248

 12   Exhibit Nestle 2 para 5

 13   Transcript PN1329 – PN1330

 14   Transcript PN2958

 15   Exhibit Nestle 4

 16   Transcript PN2987 – PN2998

 17   Transcript PN3010

 18   Transcript PN3011

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