DECISION

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

Mr Nirmal Singh
v
Aerocare Flight Support Pty Ltd
(U2015/12518)

Application for relief from unfair dismissal – whether breach of social media policy amounted to valid reason for dismissal – no valid reason in the circumstances – dismissal unfair – compensation appropriate remedy – reduction of compensation made for misconduct.

[1] Mr Nirmal Singh has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by Aerocare Flight Support Pty Ltd (Aerocare).

[2] Aerocare is a national aviation ground handling and services company. Its employees include baggage handlers, titled Airline Service Agents.

[3] Mr Singh commenced employment with Aerocare on 18 August 2014 in the role of Airline Service Agent. He was employed as a casual employee on a regular and systematic basis.

[4] Mr Singh’s employment was terminated on 8 October 2015. He had been employed for approximately 14 months at the time of the dismissal.

Reason for the dismissal

[5] Mr Singh was verbally informed on 8 October 2015 that he would not be offered any further shifts. A copy of a letter sent by Aerocare to Mr Singh subsequent to the dismissal was not filed by any party to the proceedings.

[6] Mr Singh accepted that the letter sent to him by Aerocare was to the effect that he would not be offered any further shifts because he had breached Aerocare’s policies in relation to social media, he had breached his conditions of the employment manual, and his social media comments had jeopardised Aerocare’s relationship with its client and its brand. 1

[7] The Form F3 – Employer Response filed by Aerocare on 9 November 2015 states the following response to Mr Singh’s contentions in his application:

‘The applicant publicly published his support for ISIS/ Hizb ut-Tahrir and its actions/activities and made radical statements against the Australian Government (a sample of same attached and marked “A”), such that the respondent maintains that there was a valid reason for the applicant’s dismissal and that the process resulting in his dismissal was procedurally and substantively just, fair and reasonable.’

Hearing

[8] The application was allocated to me for hearing. There were no jurisdictional objections raised by Aerocare.

[9] On 18 May 2016 in [2016] FWC 3128 I granted leave for Aerocare to be represented at the hearing on 24 May 2016 by Mr Stephen Hughes of Piper Alderman.

[10] Mr Singh was self-represented and gave evidence on his own behalf. Evidence for Aerocare was given by:

● Mr Paul Brunyee, Manager Customer Experience;
● Mr Greg Hughes, Safety Specialist;
● Mr Greg Shelley, General Manager – Employee Relations;
● Ms Sherri Nilan, Manager Recruitment; and
● Mr Jason McCaughey, Supervisor.

[11] Where throughout this decision I refer to Mr Hughes, the reference is to Mr Greg Hughes of Aerocare, not Mr Stephen Hughes of Piper Alderman.

Facebook posts made by Mr Singh

[12] It is not disputed that Mr Singh was an active poster on Facebook, and he created a profile in the name of Sherri Solace Singh. Mr Singh agreed that he had set up the profile using an alias, but with his own photograph. When asked why he set up the Facebook profile using an alias, he answered: 2

‘Because my name is particularly difficult for people to speak out, so I just set up a common name which is – everyone can speak, and it is easy for them to speak and understand. It’s a common practice here. Most of the Chinese people come with an Anglicised name.’

[13] There are five Facebook posts attached to the Form F3 – Employer Response. Mr Singh agrees that he made all five posts.

The ISIS post

[14] On 4 October 2015, Mr Singh ‘shared’ a post from a Facebook group called ‘HT Australia’. The post of HT Australia reads: ‘Pictures from today’s demonstration held in Lakemba against the American/Russian led aggression against the revolution of Syria. Views of the speeches shall be available in due course.’

[15] In sharing the post, Mr Singh added the words, ‘We all support ISIS.’ Mr Singh’s post is below:

The Britain First post

[16] Some date on or after 29 August 2015, Mr Singh shared on his Facebook page the following video that had been posted by a Facebook group titled ‘Britain First’. The post is below:

The Kateb post

[17] On 3 October 2015, Mr Singh shared on his Facebook page the following post that had been posted by a Facebook group titled ‘Sikh Feed’. The post is below:

The Malcolm Turnbull post

[18] On 2 October 2015, a 15 year old boy shot and killed Mr Curtis Cheng, an unarmed civilian police finance worker outside the NSW Police Force headquarters in Parramatta. On or around 3 October 2015, Mr Singh posted the following on his Facebook page:

The Stockholm Syndrome post

[19] On or around 4 October 2015, Mr Singh linked a news article on the smh.com.au website to his Facebook page. He wrote ‘Stockholm Syndrome’ above the article. The post is below:

Discovery of Facebook posts – 4 October 2015

[20] On 4 October 2015, Mr Hughes was informed by two Supervisors that they each held concerns regarding Facebook posts made by Mr Singh. The two Supervisors, Mr McCaughey and Mr Rumac independently and separately informed Mr Hughes of their concerns regarding the ISIS post. Both Mr McCaughey and Mr Rumac were friends with Mr Singh on Facebook.

[21] Mr Hughes’ evidence is that on 4 October 2015, Mr Rumac sent him a text message of the ISIS post. Mr McCaughey reported the matter to Mr Hughes approximately two hours after Mr Rumac had. 3

[22] Mr McCaughey’s evidence is that upon seeing the ISIS post, he felt unsafe. He sent the ISIS post to Mr Hughes, and in accompanying text said words to the effect, ‘What is this? I don’t believe that this should be working at the airport, someone who supports ISIS.’  4

[23] Subsequent to sending Mr Hughes a text message, Mr Rumac met with Mr Hughes in the workplace. While logged in to Mr Rumac’s Facebook page, Mr Rumac showed Mr Hughes the Facebook page of Mr Singh. 5 Mr Hughes’ evidence is that he saw the ISIS post on Mr Singh’s Facebook page, and not within a Facebook group.6

[24] Mr Hughes considered that Mr Singh was discussing the plight of the Islamic community, and was promoting what he considered to be an extremist viewpoint, addressing “Western” governments, including Australia, in a derogatory manner. 7

[25] Mr Hughes investigated the organisation, Hizb-ut Tahrir (HuT), and determined that the group was recognised for its Islamic extremist views, and had been associated with the radicalization of individuals into known or suspected terrorists. 8

[26] Mr Hughes considered that at face value, Mr Singh appeared to be supporting the views of HuT. He considered that this could pose a significant security concern as Mr Singh possessed an Airport Security Identification Card (ASIC), and was authorised to work within the security-sensitive parts of the Perth Airport without constant supervision or scrutiny. 9

[27] Mr Hughes alerted Mr Brunyee to the Facebook posts. Whilst it is Mr Brunyee’s evidence that he was given a copy of each of the five Facebook posts by Mr Hughes, it has been established that some of the five Facebook posts were posted later in the evening of 4 October 2015. Mr Hughes provided a copy of at least the ISIS post to Mr Brunyee, however there is no clarity as to which other posts were copied to Mr Brunyee.

[28] Mr Singh was due to commence a casual shift on the evening of 4 October 2015. At approximately 7.45pm on 4 October 2015, Mr Brunyee met with Mr Singh and informed him that he had received complaints regarding his social media posts. Mr Singh was informed that the posts would be investigated, and he would be suspended from his rostered duties and would receive payment during those shifts.

[29] Mr Brunyee informed Mr Singh that he would be contacted within two days to review the outcome of Aerocare’s investigation. 10

[30] Mr Brunyee then met with a member of the Australian Federal Police (AFP) and provided to him a copy of the Facebook posts in his possession. This included at a minimum the ISIS post.

[31] Mr Brunyee contacted Mr Singh by telephone on 5 October 2015 and informed him that he was required to attend a meeting on 6 October 2015 to assist in the investigation of social media posts that may have been made by him. There is no evidence before me that Mr Singh was informed he could bring a support person with him to the meeting.

Meeting of 6 October 2015

[32] On 6 October 2015, Mr Singh attended a meeting with Mr Brunyee. Ms Nilan was in attendance as a note keeper.

[33] The notes taken by Ms Nilan for the meetings of 6 October and 8 October 2015 were inadvertently not attached to her witness statement. This was only discovered during the hearing. The notes were provided subsequent to the hearing and made available to Mr Singh. It is understood that Mr Singh does not object to the accuracy of Ms Nilan’s notes.

[34] Ms Nilan’s notes are summarised by me as follows:

● Mr Singh’s employment remains suspended with pay;

● Is Mr Singh aware of Aerocare’s social media policy? Yes;

● Mr Brunyee explained that the policy is strict as to what can be posted online, and everybody needs to be cautious of the messages they display in public forums;

● Mr Brunyee asked if postings on Facebook were made by Mr Singh. Mr Singh said he would need to see the specific posts being referred to;

● Mr Brunyee showed Mr Singh the ISIS post. Mr Singh said yes, he had posted it;

● Mr Singh asked if the post had been seen by management, or had it been reported to management? Mr Brunyee advised that it had been reported to management;

● Mr Brunyee explained that such a post could possibly bring negative light towards Aerocare and clients, as the post could be seen as controversial;

● Mr Brunyee advised that Mr Singh’s ASIC is suspended during the investigation process. PAPL and AFP are aware of the situation;

● Mr Brunyee asked if Mr Singh understood the information and the impact it can have? Mr Singh said that can understand the scenario, yes;

● Mr Singh stated that he always keeps his personal and work life separate and has never mentioned on his postings anything about working at the airport or for Aerocare;

● Mr Brunyee explained that he is linked because he is Facebook friends with people who do work at the airport and at Aerocare, and this is known;

● This can reflect on the company and its clients. Mr Singh said yes, I understand;

● Mr Singh said the topics were already in a public forum and he just added comments; he didn’t create the whole page or topic. It was already there and he added to it;

● Mr Singh said if people read back and read the whole thread they would see this;

● Mr Brunyee said it is possible that people would only see his comments and not go back to the beginning of the postings;

● Mr Brunyee said he must be very mindful of the environment and how the postings can be interpreted;

● Mr Singh said he does not support ISIS and the comments are in sarcasm to what was already a topic in a public forum. The whole country is on high alert;

● Mr Singh mentioned there is a new Prime Minister, and the shooting that happened in Sydney. These topics are already public, and he added sarcasm to what is already there;

● Mr Singh said with regard to the shooting, Australia is talking about the shooter’s family. They should be talking about only the victim’s family, not the shooter. It’s interpreted wrong and he does not support this way;

● Mr Singh said when he lived in India, Muslims made up 16% of the population and he was involved in writing strongly against Islamic extremism. He stopped writing as much when he came to Australia as there is only 2% of the population and the country is on high alert;

● Mr Singh said if you go through his posts, you will see he is against extremism. He said the ISIS post in a sarcastic way; he is playing devil’s advocate and doesn’t really mean it;

● Mr Brunyee said the posts have the potential to be interpreted in a different way to his intentions and it’s important to be mindful;

● Mr Brunyee raised the Stockholm Syndrome post, and said it appeared to have been posted on Sunday night, following him having suspended Mr Singh’s employment. Mr Singh agreed he had posted it on Sunday night. He had added to a news article. He explained that Stockholm Syndrome was caring for the shooter and his family and feeling sorry for them;

● Mr Brunyee said that while he was under investigation, he was not required to attend work. Mr Singh said that he understood;

● Mr Singh asked what would happen next. Mr Brunyee said he would review the investigation notes and get back to him by tomorrow morning;

● Mr Singh asked if he will be terminated as he needs to start looking for another job. Mr Brunyee said this is an investigation meeting and we will get back to him. Mr Singh said with PAPL knowing, maybe there is a process he thought he would need to do. Mr Brunyee said he was not across the processes of PAPL or AFP. They may or may not undertake an investigation. Aerocare is doing its own investigation;

● Mr Singh urged Mr Brunyee to go back through the full threads of the postings to see what other people were saying and we was just commenting not starting the postings.

[35] It is Ms Nilan’s evidence, through her notes, that Mr Singh was shown the ISIS post and the Stockholm Syndrome post at this meeting.

[36] The notes do not reflect a commitment from Mr Singh to remove the relevant Facebook posts.

7 October 2015

[37] On 7 October 2015, AFP Officers of the Joint Counter Terrorism Unit attended Aerocare’s offices at the Perth Airport. Aerocare employees participated in the investigation by the AFP.

[38] At approximately 4.00pm, Mr Brunyee telephoned Mr Singh and informed him that he had scheduled a further meeting for the following day. At 4.05pm, Mr Brunyee sent to Mr Singh a letter by email directing him to attend a meeting with Mr Brunyee the following day at 4.00pm. The letter states:

‘This meeting is to offer your further explanation and answer questions relating to the inappropriate social media comments made, whereby you will be given the opportunity to further explain.

Given the seriousness of this issue and potential consequence which may lead to no further hours being offered, it is recommended that you arrange for a support person to attend the meeting with you.’

[39] Ms Nilan’s evidence is that she was informed that Aerocare held concerns that should the media become aware of Mr Singh’s post, it could result in panic, furore and concern about public safety and the reputation of Aerocare and that of its client, Virgin Australia.

Meeting of 8 October 2015

[40] On 8 October 2015, Mr Singh attended a meeting with Mr Brunyee. Ms Nilan was in attendance as a note keeper.

[41] Ms Nilan’s notes are summarised by me as follows:

● Mr Singh offered a support person but has chosen not to bring a support person;

● Reason for meeting is to discuss the social media posts discussed at the last meeting and some additional postings that have been brought to Mr Brunyee’s attention. A further opportunity to talk to him;

● Mr Singh confirmed that he had made the Facebook posts that were discussed on Tuesday. Mr Singh said he posts about 10-20 things per day;

● Mr Brunyee reiterated the security environment where work is performed, the security training that he has completed, being an ASIC holder, and posting is discussed in the social media policy;

● Mr Singh said his postings were not about Aerocare or the airport. All postings are about extremism, they are political, about Australia;

● Mr Brunyee reminded Mr Singh that it’s important to be very careful about posts given the security environment where the work is performed;

● Mr Singh said he doesn’t relate to Aerocare or to Aerocare’s clients his posts. He showed Mr Brunyee on his phone other posts made by staff including a picture of three Aerocare staff shaving in a bathroom, all in Aerocare uniform and in breach of policy. Mr Singh said he doesn’t go to the smoking areas like others do in their Aerocare uniform. They are breaching policy and he would never do this;

● Mr Brunyee reminded Mr Singh that he has friends on Facebook who do work at Aerocare and at the airport, and regardless of what he posts, it is linked back as it is a public domain for everyone. Mr Brunyee asked Mr Singh if he understood this (not acknowledged specifically);

● Mr Singh said that he is part of secret groups, and only the secret group members can see what he posts. Mr Brunyee showed Mr Singh a new post that had been made that was approximately two paragraphs long, and asked Mr Singh if he also had made this posting. Mr Singh confirmed that he did, but it was within the secret group. Mr Brunyee said he had found it in the public domain;

● Mr Singh said his groups are secret. He mentioned them: “Australia The Last Castle”, “Reclaim Australia”, “Australia Free Country”. Mr Singh said it was necessary to apply and be accepted to the group; not everyone can join;

● Mr Singh said that these groups are against ISIS and extremism. They are against Australia promoting the shooter, and not solely the victims, referring to the recent Sydney shooting. My posts are misinterpreted. Mr Singh said he is a Sikh;

● Mr Singh mentioned the Stockholm Syndrome post, and explained again what he meant by it. He said he does not believe in Australia’s method of slaughtering cows;

● Mr Brunyee asked Mr Singh to confirm if the posts were in sarcasm. Mr Singh said the ones that he saw in Tuesday’s meeting were. They were in sarcasm, but not all of them;

● Mr Singh said that Australia has freedom, so why would it not be respected;

● Mr Brunyee reiterated the policy in relation to social media and how his posts have breached this policy;

● Mr Singh said he had read the policy carefully again last night and he knew the policy;

● Mr Singh explained the difference between Australia’s message being contradictory, being ‘terrorist’ and ‘politically motivated’. Mr Singh said it cannot be both, and he referred back to the Malcolm Turnbull post. Mr Singh said he posts this in his secret groups;

● Mr Brunyee reminded him that it was showing up in the public domain;

● Mr Singh said he had shut the initial Facebook page and has started up new ones. He did reactivate the original Facebook page just to read again the postings that Mr Brunyee had mentioned, though he then closed it and it would be deleted in 14 days from Facebook;

● Mr Brunyee went over the policy breach again and the effect that posts that may be seen as controversial, particularly in our environment, and the impact they can have on company and clients. Mr Singh said he understood. Mr Brunyee asked him if he had any questions. Mr Singh said no, he understood it;

● Mr Singh explained another post he made to do with Australians being racist 30/70%. He said that could mean all Australians are racist. He joked on this on the posting and that could also be taken wrong. Mr Brunyee agreed that people may see this differently to how he intended as a joke;

● Mr Singh said anything can be controversial and be interpreted in any way by anyone;

● Mr Singh said he is sorry to have caused problems and he didn’t mean to do this. He has come from a 9 year manager job with 1600 employees to Aerocare to start a new career and life. He always does the right thing and not go against policy. In his old job as a manger he made sure others upheld policies;

● Mr Singh said he is sorry that the comments are misrepresented and he is sorry that he can’t change this. He has deleted the initial page and this will be gone in 14 days;

● 4.40pm, Mr Brunyee asked Mr Singh to step out of the office for 10 minutes so we could review notes and consider the information provided. We called to discuss meeting so far with Rob M. Arranged for AFP to be near doorway at office exit should it be required;

● 4.52pm meeting recommenced;

● Mr Brunyee reiterated policy in regards to social media and Mr Singh’s posts were in breach of policy and may be seen as controversial, particularly in the security critical environment in which we work. Whilst Mr Singh claims he has not mentioned Aerocare or airport worker in any of his postings, Mr Singh has friends linked to his account that are then seen or connected to be associated with Aerocare and our clients, in which we are now having to manage;

● Mr Brunyee said given the breach of this policy we will not be offering you any further hours with the company effective immediately;

● Mr Singh was silent and closed his eyes. Mr Brunyee waited a few moments and asked him if he understood. Mr Singh said yes;

● Mr Brunyee asked Mr Singh if he had his ASIC on him, he said yes. Mr Brunyee asked for this back and Mr Singh asked isn’t it his? Mr Brunyee said we are required to collect if from him and will have a cheque mailed to him for his $50 deposit;

● Mr Singh did not yet hand over ASIC and asked can he use for other work in the airport? Mr Brunyee said this is part of the Aerocare investigation and what PAPL or other bodies do further with ASIC for further airport work is up to them, not Aerocare.

● Mr Brunyee asked again for ASIC;

● Mr Singh then handed over his ASIC. Mr Brunyee asked Mr Singh to return his uniform item and company property and to call Mr Brunyee when he was coming to the airport so he could meet him to collect this;

● Mr Brunyee asked Mr Singh if he had any further questions. He did not.

[42] Mr Brunyee’s evidence is that at 4.40pm, he discussed Mr Singh’s response with his Supervisor, Mr Robert Murdoch and Mr Shelley. The three gentlemen jointly came to the conclusion that the explanation for the social media postings provided was not satisfactory. It was decided that Aerocare had no alternative but to cease offering to Mr Singh further casual shifts. 11

[43] After a break in the meeting of approximately 10 minutes, Mr Brunyee reconvened the meeting and informed Mr Singh he had reviewed the notes from the meeting and it was his decision that Aerocare would not offer any further casual shifts to him.

Aerocare’s Social Media Policy

[44] Aerocare’s Social Media Policy (the SM Policy) is a three paragraph section within the Aerocare People Systems Manual. It is reproduced below:

‘7.82 Web “blogging” and Social Network sites

An employee’s online presence reflects the company. 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. In all cases, it is not permitted to publish any information regarding a client or airport operations. Use of images depicting Aerocare or client employees, particularly involving employees in company uniform, operations or equipment are not permitted to be posted on external internet sites or social network sites, forwarded as email attachments or otherwise published, without the express permission of the Company. Aerocare employees must also refrain from mis-representing they are employed by our client/s on external internet sites.

A disclaimer stating that the individual views expressed by the author do not necessarily depict or reflect the views or opinions of Aerocare or our clients must accompany any comments that are published by individuals to external internet sites. Personal blogs should have clear disclaimers that the views expressed by the author in the blog is the author’s alone and do not represent the views of the company. Information published on employee’s blog(s) should comply with the company’s confidentiality and disclosure of proprietary data policies. This also applies to comments posted on other blogs, forums, and social networking sites.

Company logos and trademarks may not be used without written consent.’

Written evidence of Mr Singh

[45] Mr Singh’s written evidence is that when he met with Mr Brunyee and Ms Nilan on 6 October 2015, he was shown only two posts. It is not disputed that he was shown the ISIS post during this meeting.

[46] Mr Singh maintained during his evidence that he was shown by Mr Brunyee a post he had commented on where he had said “Typical Stockholm Syndrome”. Mr Singh’s evidence is that he was shown the following post by Mr Brunyee:

[47] Mr Singh conceded during the hearing that he may have been incorrect about having been shown a post involving Mr Bill Shorten, Leader of the Opposition. Mr Singh was shown the Stockholm Syndrom post (depicting Mr Turnbull), as is clear from Ms Nilan’s notes.

[48] Mr Singh said that he stated during the meeting of 6 October 2015 that nowhere on his Facebook profile does he mention or refer to his employment with Aerocare, any relationship with any of its clients, or the Perth Airport.

[49] He also informed Mr Brunyee that none of his posts referred to Aerocare, its clients or the Perth Airport. He said to Mr Brunyee that his posts relate to a range of topics which are generic in nature and are made on topics which are already in the public domain, and therefore, cannot breach Aerocare’s SM Policy.

[50] It is Mr Singh’s evidence that he informed Mr Brunyee at the meeting that he should only use the disclaimer required in the SM Policy if it could be inferred that he represented Aerocare while making comments or posting on social media.

[51] Mr Singh said to Mr Brunyee that none of his co-workers, supervisors or managers at Aerocare use the disclaimer in their Facebook posts, and he considered that he was being singled out or discriminated against. 12

[52] Mr Singh’s evidence is that in relation to the ISIS post, he explained to Mr Brunyee that he is a Sikh by religion, and the religion having had a history of genocide at the hands of Islamic fundamentalists, he certainly was not a supporter of Islamic radical and terrorist organisations such as ISIS.

[53] Mr Singh explained that the ISIS post was a sarcastic reference to the ‘shared news item on Facebook which reports some Islamic group supporting ISIS in some east Australian state and is only a sarcastic way of saying that those people protesting as mentioned in the news report are stupid as no one in Australia supports ISIS beliefs or its activities.’  13

[54] Mr Singh asserted to Mr Brunyee that the post is political in nature, and in no way relates to Aerocare or any of its client’s functioning and cannot be termed to be in breach of the SM Policy.

[55] With respect to the second post shown to Mr Singh during the meeting - and incorrectly asserted by Mr Singh to be a new article of Mr Shorten, when it was a news article of Mr Turnbull – Mr Singh said to Mr Brunyee that he had been commenting on a news item which is public in nature. Others have commented on the news article.

[56] Mr Singh’s reference to Stockholm Syndrome was made by him because he considered that sympathies were incorrectly given to the shooter of the Parramatta shooting, when they should have been given to the victim’s family. Mr Singh said to Mr Brunyee that the comment and its meaning is of general political discourse, and had no connection to Aerocare or its client’s functioning. Likewise, it cannot be termed to be in breach of the SM Policy.

[57] Mr Singh agreed that he was contacted on 7 October 2015 and invited to bring a support person with him to a meeting with Mr Brunyee and Ms Nilan on 8 October 2015.

[58] It is Mr Singh’s evidence that he was informed by Mr Brunyee that any person can go through Mr Singh’s Facebook friend list and come to the conclusion that because he has friends who work for Aerocare at the Perth Airport, he too works at the Perth Airport. Given that Mr Singh works in a security-sensitive environment, the posts made by him can cause harm to Aerocare, its clients and to Perth Airport. Mr Singh stated that it is how Mr Brunyee had said that he was in breach of the SM Policy.

[59] Mr Singh was asked to explain the same two posts that had been discussed on 6 October 2015. He gave the same explanation that he had given on 6 October 2015. It is Mr Singh’s evidence that no new posts were discussed.

[60] Mr Singh did not reference a break in the meeting. Mr Singh stated that he was informed by Mr Brunyee that the posts have been found by Aerocare to be in breach of the SM Policy, and therefore Aerocare would no longer shifts to him effective immediately.

[61] Mr Singh provided in his evidence a screen print of a meme made by Mr Hughes. Mr Singh asserted that Mr Hughes’ political comment/meme, which Mr Hughes has made his profile picture, is similar to the post made by him regarding the Stockholm Syndrome post, but no action has been taken against Mr Hughes. It is reproduced below:

[62] Mr Singh contended that Aerocare is in breach of its Disciplinary Procedure contained in the Aerocare General Conditions of Employment. An incomplete copy of the Disciplinary Procedure was provided in evidence by Mr Singh. Aerocare did not refer to its Disciplinary Procedure. I am unable to determine if Aerocare has breached the Disciplinary Procedure without a full copy of the Procedure. Despite the Procedure being provided in written submissions following the hearing, there was no opportunity for cross-examination in relation to this issue.

[63] Mr Singh did, however, submit that the Procedure requires that the decision-maker in an investigation must be “impartial, fair and just”. The incomplete copy of the Procedure does make that clear. Mr Singh submits that Mr Brunyee had been the investigator and the decision-maker of the alleged breaches of the SM Policy. Accordingly, Mr Singh submitted that it is a straight-forward case of conflict of interest, a denial of natural justice and a violation of Aerocare’s own Disciplinary Procedure. 14

[64] Mr Singh contended in evidence that Aerocare had a bigger picture, and had convened a sham investigation into his Facebook posts. His evidence is that Aerocare was moving its operations into one consolidated termination at T2, and would need to dispense of some employees. Mr Singh contended that he may have, in addition to the investigation, been terminated for this reason. 15

Deletion of Facebook profile

[65] Mr Singh stated that he had claimed in both meetings of 6 and 8 October 2015 that he would delete his Facebook profile.

[66] It was clear during the hearing that Mr Singh’s Facebook profile was still active. I had my Associate review his Facebook profile during the hearing. It was apparent that Mr McCaughey and Mr Rumac were still Facebook ‘friends’ with the relevant profile. Mr Singh explained that he had removed all of the relevant posts and de-activated the profile. On commencement of the Commission proceedings, he considered that he would need to show the Commission that he had deleted the earlier posts, so he re-activated the profile.

Written evidence of Mr Shelley

[67] Mr Shelley is responsible for Aerocare’s employment and industrial relations issues. Mr Shelley was informed on or about 4 October 2015 of Mr Singh’s Facebook posts.

[68] Mr Shelley’s evidence is that in his discussions with Aerocare management he had been informed of the following: 16

(a) Mr Singh had acknowledged that the posts were his;

(b) Mr Singh had offered either no or no adequate explanation or justification as to why he was accessing radical political websites or “liking”, “sharing” or commenting on the posts from those websites on his social media accounts which were linked to other Aerocare employees; and

(c) Mr Singh had offered no response to concerns expressed by his co-workers and management at Aerocare about the nature of the postings and about how they could negatively reflect on himself and Aerocare and cause concerns in respect of customer and passenger safety and the application of security laws and regulations applying to airports and airport operations.

[69] It is Mr Shelley’s evidence that while articles shared by Mr Singh are available in the public domain, they are from and purport to support organisations that have engaged in recognised terrorist activities, including the targeting of passenger aircraft.

[70] In written evidence, Mr Shelley concluded that Aerocare was not in a position to determine if Mr Singh is a practicing Sikh as claimed by him, and was not in a position to determine any political motivation he may or may not have to support an Islamic radical and terrorist organisation. Mr Shelley included in his witness statement that Mr Singh’s professed religion – that of a Sikh – was not devoid of a history of assassination and terrorism in India, including the assassination of the then Indian Prime Minister, Indira Gandhi in 1984. 17

[71] Mr Shelley contended that within the security environment of commercial passenger aviation, the defence of “the post is actually sarcastic”, or “I was only joking” is not an acceptable explanation. It may be an offence under the Aviation Transport Security Regulations 2005 (the Regulations).

[72] The Regulations relevantly provide:

‘9.01 Threats regarding aviation security

(1) A person must not, while at a security controlled airport or on board an aircraft, engage in conduct that a reasonable person could interpret as a threat to commit an act of unlawful interference with aviation.

Penalty: 50 penalty units.

(2) An offence against subregulation (1) is an offence of strict liability.

Examples of conduct for subregulation (1):

Making jokes about bombs in baggage

Leaving articles of baggage unattended.’

[73] Mr Shelley’s evidence is that the Brussels terrorism act of 22 March 2016, well after Mr Singh’s dismissal, was conducted by suicide bombers who once worked at the airport and were familiar with airport security systems, procedures and floorplans. Mr Shelley contends that an explosive device used to cause the destruction of a Soviet passenger aircraft flying out of Egypt was placed on the aircraft through the baggage loading system. 18

[74] Mr Shelley did not accept Mr Singh’s submission reported to him on 8 October 2015, that the posts he had admitted to having made did not relate to or adversely reflect on Aerocare or any of its clients. The posts had been reported by fellow Aerocare workers who met their obligation to report to management the concerning posts.

[75] Aerocare does not deny Mr Singh a right to have political opinions. However, the publishing of a post saying, ‘We all support ISIS’, and similar posts caused other Aerocare employees to be alarmed by his political motivations and possible actions within a highly security-conscious environment.

[76] Mr Shelley determined that Mr Singh had been afforded natural justice and had been given a reasonable opportunity to respond to the investigation. Mr Singh had not, according to Mr Shelley, offered an acceptable explanation for his actions.

[77] Mr Shelley supported the decision to cease offering Mr Singh casual shifts. Mr Shelley acknowledged that this had the effect of ending Mr Singh’s employment with Aerocare.

Evidence of Mr Singh during the hearing

[78] Mr Singh was subject to cross-examination during the hearing.

Suspension of employment with pay

[79] At approximately 7.45pm on 4 October 2015, Mr Brunyee met with Mr Singh and advised him that Aerocare had received complaints that he had made offensive and concerning social media postings, and while those complaints were being investigated, he would be stood down from his rostered shifts.

[80] Mr Singh took exception to not being immediately informed of specific detail of the allegations. Mr Singh’s evidence is that he had ‘no inkling of any idea of what the investigations ….about.’  19

Meeting of 6 October 2015

[81] During the meeting of 6 October 2015, Mr Brunyee informed Mr Singh that Aerocare had come across some Facebook posts purportedly made by Mr Singh in breach of Aerocare’s SM Policy. Mr Nilan was present to record notes.

[82] It is not disputed that Mr Singh acknowledged that he had made the posts under the alias. In repeating the earlier written evidence, Mr Singh stated that informed Mr Brunyee that he did not consider that he was in breach of the Aerocare SM Policy because the Facebook page was under an alias, and not Mr Singh’s real name.

[83] Mr Singh stated that he did not think the posts were in breach of the SM Policy, as at no time had he referred to his employment or being employed by Aerocare. 20

[84] Mr S. Hughes put to Mr Singh that people had, indeed, identified the post as having been made by Nirmal Singh, and he worked for Aerocare at the Perth airport. Mr Singh replied: 21

‘They were not ordinary people, they were my co-workers who always knew that.  This statement that anybody can know that I'm working for Aerocare or at Perth airport, is for a general public.  Even if these people are not friends in my Facebook, they know me.  I am their co-worker.  They don't have to know me from my Facebook posts.  There are submissions here that no one can certain that I work for Aerocare or at Perth airport is for general public who visits my page.  I have kept my personal and professional life separate.  My co-workers already know me.  My management already knows me.’

[85] Mr Singh further stated that for there to be a breach of the SM Policy, there has to be a link between the Facebook profile and his employment with Aerocare. He stated: 22

‘Any outside person cannot make that call, because there’s no information of me working at Aerocare, working at Perth airport, working for any client airline. Only the people who are there as my friends know me. And I tell you that because I know them and they know me.’

[86] During the meeting of 6 October 2015, it was confirmed that Mr Singh had made some further posts since having been suspended on 4 October 2015. One of those posts was the Stockholm Syndrome post.

[87] Mr Singh was informed at this time that the operator at Perth Airport and the AFP had been notified of the contents of the posts. Mr Singh was informed that no decision had been made by Aerocare, and the investigation was continuing.
[88] Mr Singh’s evidence is that during this meeting, he informed Mr Brunyee that he would delete the ISIS post. Mr Singh’s evidence is that following the meeting, he deleted his alias Facebook profile.

[89] Mr S. Hughes suggested to Mr Singh that he deleted his profile because he accepted that the posts were inappropriate given his employment. Mr Singh answered: 23

‘Yes.  If someone finds my posts having some problem and if my company finds they are having some problem, I am not attached to my Facebook profile.  It's a post.  If someone finds any errors with me, I am happy to correct it.  If there is a post which someone can - is then become concerned of, I'll delete it.’

[90] The following exchange occurred during cross-examination: 24

‘Mr S. Hughes: Do you accept that it was an inappropriate joke of inappropriate matter to make a sarcastic comment about?

Mr Singh: Okay.  When I made the post, I was in this conversation on - in this thing that this post is a sarcastic post in the conversation.  When it is brought to my notice that someone has concerns and especially my employer has concerns about my post, I offered to delete it.  I offered to delete my Facebook profile altogether.  That is the utmost I can do and I did it.  I honestly accepted my Facebook posts - my profile.  I honestly accepted that there might be concerns and I honestly stated that I'll delete them, if it is such a - of some concern.  That is what any person can do.  Everyone makes mistakes.’

[91] Mr Singh was asked to confirm that when he posted ‘We all support ISIS’, there were no emoji’s, no punctuation or other words used. Mr Singh agreed. 25

[92] Mr Singh explained that he understood HT Australia to be an Islamic group based in many countries. The group advocates for the establishment of a political ideology based on Islamic principles. It supports extremists’ views which are not compatible with Western democratic values. 26

[93] Mr Singh agreed that at the time of making the ISIS post he was sharing a post by an organisation which Mr Singh accepts is a global Islamic political movement with radical tendencies. 27

[94] It was put to Mr Singh by Mr S. Hughes that HT Australia is banned in Australia. Mr Singh stated that it was his understanding that they are not banned, and given there had been a demonstration in Lakemba, NSW of this group, if they had banned, they would not have been able to hold a demonstration 28

[95] Mr Singh’s evidence is that he is part of a group on Facebook opposed to religious extremism, including of HT Australia. 29

Sarcasm

[96] In cross-examination, it is Mr Sing’s evidence that HT Australia was posting about things happening elsewhere in the world, supporting ISIS, while there had been a shooting of a civilian police worker by a person of Islamic radical thinking. Mr Singh stated: 30

‘This is not good……. I have taken the same post and re-shared it, saying that , yes, we all – it was a sarcastic statement, saying that, yes, we all support ISIS, you are stupid. It’s a sarcastic way of saying that you are stupid, when everyone is concerned about that policeman who has been shot. You are thinking about ISIS or something which is happening in Syria. It’s a sarcastic way of saying that.’

[97] When asked to explain sarcasm, Mr Singh said: 31

‘sarcasm is to be understood and it is pointed to the audience to which it is given to. It’s not for everyone. ……it’s in a conversation within a group which is a secret group.’

[98] Mr Singh stated that there were four posts, all sarcastic. Mr Singh explained sarcasm by saying that you call a dumb person ‘Einstein’.

Secret group

[99] In cross-examination, Mr Singh asserted that he was a member of a secret group on Facebook. Only members of that group can read or access the conversation within the group. When asked if co-workers were members of the secret group, Mr Singh answered, ‘I’m not aware of any member – that my co-workers were a member of that group. They might be. They might be not. 32’

[100] It was put to Mr Singh that two co-workers, Mr McCaughey and Mr Rumac had separately raised concerns with Mr Hughes about the Facebook post made by him. This was recorded in Mr Hughes’ witness statement. Mr Singh responded: 33

‘There are no statements from those two persons as provided to the Commission as of now.  Those two persons are not recorded as witnesses.  So whatever is in the statement, it's hearsay.  Number one.  Number two, I have been working in Aerocare for the last one and a half years, and these persons named have been my supervisors and I have worked with them for the one and a half years.  If they were the members of that group, as it has been put up by you, they would have been much closer to me than the normal co-workers.  And they were part of that conversation of four posts.  But they never - if they had any contention - the thing that they are a member of that group and they are seeing those four posts, that means they're agreeing to what the posts are about - what the group is all about.  We have the same…’

[101] At this point, I sought clarity from Mr Singh and asked him if he had simply made the posts from his alias profile to his Facebook friends, or if he had made the posts within a secret group. Mr Singh stated that he was not sure if the posts were made within a secret group or to his Facebook friends. 34

Current national security threat environment

[102] Mr S. Hughes asked Mr Singh if he was aware that the national security threat environment in Australia is a level of high alert. Mr Singh responded, “Absolutely. I’m in full conformance and I support that in full conformance.”  35

[103] Mr Singh accepted and agreed that ISIS is, and should be, listed as a terrorist organisation on the Australian National Security Register. 36

Training

[104] Mr Singh was asked if he had received training with Aerocare. He immediately answered no, that he had not received training, other than documents or ‘on the system’. Mr Singh then conceded that he had undertaken two weeks of induction training when he joined Aerocare in 2014.

[105] Mr Singh agreed that he had undertaken training on 25 August 2014 titled ‘Aerocare online Aviation Security and Emergency’. He agreed that the training included security matters, dealing with passengers, together with baggage in a secure airport environment. 37

[106] It is not disputed that the training includes how to respond to passengers or other individuals at the airport if a joke is made about security issues. The training instructs employees how to react if a person makes a joke about having a bomb in their carry-on luggage or checked luggage. The training also includes circumstances where a person jokes about being a member of a terrorist organisation. 38

[107] Mr Singh stated that the training only covers individuals who joke about bombs or belonging to terror organisations while they are within the confines of the airport perimeter, or on board the aircraft. Mr Singh contended that the training does not extend to circumstances where a person jokes about a bomb or being a member of a terrorist organisation where the person is not within the airport or aircraft. 39 [my emphasis]

[108] Mr Singh was asked if he considered that the Aerocare policy would not apply if a person rang with a threat? Mr Singh answered that if a person rings an airport airline, or a baggage handler, or anyone who is working in an airport environment, that is a call to an airport. [my emphasis]. He agreed that it becomes a matter for the airport.

[109] Where, however, somebody calls a police station, or a person walking on a road jokes about these things, it is not a matter of aviation security; it is a matter for the police, or the AFP, terrorist organisations and agencies. Mr Singh stated, ‘Aviation security is when it is related to airport.’  40

[110] Mr Singh was asked if, in the circumstance he held concerns about a fellow Aerocare worker demonstrating support for a terrorist organisation, would he report his concern to Aerocare? Mr Singh failed to give a straight answer on this question. Mr Singh stated that he would report it to a security agency at the airport and to the AFP, but that it is an individual’s judgment whether it should also be reported to the employer, Aerocare.

Meeting of 8 October 2015

[111] Mr Singh confirmed that he had been offered the opportunity to bring a support person to the meeting of 8 October 2015, but he chose not to.

[112] Mr Singh contended that Aerocare had already determined to dismiss him on 4 October when he was informed of the posts. He stated, ‘The rest of all was sham investigation when I – when I was not given proper opportunity to explain the things.’  41

Aerocare Shift Swap Facebook group

[113] Mr Singh’s evidence is that the Aerocare Shift Swap Facebook page is a secret group, as opposed to a closed group. A secret group is one where only members of the group can access the page and even search for the page. A closed group is one that can be searched by the public.

[114] During the hearing Mr Singh submitted that members of the group regularly breach the Aerocare SM Policy. Mr Singh did not put any material in evidence (other than one meme post made by Mr Hughes); he simply made submissions in relation to the alleged breaches. 42

Questions from Commissioner

[115] I asked Mr Singh why it is he ‘liked’ HT Australia on Facebook? Mr Singh answered that he could not recall if he liked their page, or if there were ‘outlets’ which he was interested in showing that HT Australia is wrong. 43 Mr Singh suggested that he was discussing HT Australia in his secret group.

[116] I asked Mr Singh if he recalled having any discussion with fellow Aerocare employees regarding HT Australia? Mr Singh replied that he was not sure, and he considered that he only discussed his views with people within his secret group. Mr Singh stated: 44

‘I don’t – know because they are sensitive people and there are some Muslim co-workers as well and they might take it in the wrong way. So I will never discuss these things at office or in general. I will keep it to that secret group, not to hurt anyone and things can be taken in a wrong way.’

Britain First video – “Islam will destroy Britain”

[117] Mr Singh described the video from Memri TV, a TV network reporting on what Islamic extremists are doing. The network demonstrates how Islamic extremists are ‘wrong’ 45 The Facebook group, Britain First shared a video from Memri TV. Britain First is a UK organisation opposed to Islamic extremism.

[118] Mr Singh’s evidence is that his friends, or those within his secret group all subscribe to a doctrine that religious extremism, and especially Islamic extremism is bad for Australia, and is bad for democracies and humankind.

[119] I asked Mr Singh if he was a member of the Britain First Facebook page? He said that he was not, but that somebody within his group had shared the Britain First post displaying the Memri TV video, and he ‘liked’ it. It is Mr Singh’s evidence that the Islamic extremist on the video stating, ‘That we will destroy America. That we will destroy Britain’ is stupid, and Mr Singh was discussing these issues with his fellow group members. 46

[120] I asked Mr Singh if, in the circumstance Aerocare’s client airline had expressed concern that it no longer would allow Mr Singh at its airport operations, what could Aerocare have then done with respect to his employment? Mr Singh stated that he accepts that airlines have procedures in place to assess security threats. He is unsure how this occurs, or what has been discussed with Aerocare.

[121] In re-examination, Mr Singh was asked if he subscribed to views held by the group, Britain First. Mr Singh confirmed that he supported the following views:

● Illegal immigrants should be deported; 47

● Some support for offering cash to illegal immigrants to return to their place of origin (instead of the cost of offshore detention centres); 48

● Creation of an American-style Bill of Rights guaranteeing freedom of speech, assembly and expression; 49

● Keeping the national interest above everything else; 50

● The prohibition of Halal slaughter; 51

● Opposition to Shara courts and Shara law – ‘I support the rule of law of the land.’  52

● Opposition to the wearing of Islamic face coverings in public – ‘There has been concerns raised about security issues regarding this and we are an open society.’  53

Mitigation

[122] Mr Singh’s evidence is that he secured other work in late November 2015. He was unemployed from 8 October 2015 until the end of November 2015.

[123] The role Mr Singh secured resulted in him earning approximately the same as he would have earned in employment with Aerocare.

[124] Mr Singh does not seek reinstatement. Mr Singh seeks an order of the Commission for the loss of wages during the period of unemployment. Mr Singh would also like to be able to say that he resigned his employment.

[125] Mr Singh put his loss of income for the relevant period at around $7,000 gross.

Evidence of Mr Brunyee during the hearing

[126] Mr Brunyee’s evidence is that of five posts made by Mr Singh, he was shown three posts at the meetings of 6 and 8 October 2015. He was shown: 54

● The ISIS post;

● The Malcolm Turnbull post; and

● The Stockholm Syndrome post.

[127] This evidence is consistent with the notes made by Ms Nilan.

Only three out of five posts shown to Mr Singh

[128] Mr Brunyee agreed that he had not shown Mr Singh the Britain First post. Further, it is not contested that Mr Brunyee failed to show to Mr Singh the Kateb post.

[129] Mr Brunyee was asked which of the posts he regarded as being contrary to Aerocare’s SM Policy. Mr Brunyee answered that primarily the ISIS post was in breach, but he considered that the other two posts discussed with Mr Singh were also “definitely linked, considering that there was a sequence of events that had played out.” 55

[130] There being some conjecture between Mr Singh and Mr Brunyee in cross-examination of Mr Brunyee as to which posts Mr Singh was shown, it is Mr Brunyee’s evidence that Mr Singh was shown the Stockholm Syndrome post depicting a picture of Mr Turnbull. Mr Brunyee had not shown to Mr Singh the post with Mr Shorten in the picture. This was Mr Singh’s error.

[131] Mr Brunyee stated that when he informed Mr Singh on 4 October 2015 that his employment was suspended, he informed him that there were some ‘conflicts and some fairly extraordinary posts that had been posted….as as a result of that …needed to stand … down pending a full investigation…’  56

Mr Singh explained posts as ‘sarcasm’

[132] Mr Brunyee’s evidence is that at the meeting of 6 October 2015, Mr Singh’s explanation for the ISIS post is that it was sarcasm. In relation to the Stockholm Syndrome post, Mr Singh had answered that he had liked the page and had forwarded his personal view. 57

[133] It is Mr Brunyee’s position that Mr Singh’s employment had been suspended on 4 October 2015, and that very evening, he had made the Malcolm Turnbull post. Mr Brunyee considered the post was in relation to ‘an incident that had occurred which was highly sensitive and had high media focus, and had links to extremism.’ Mr Brunyee answered Mr Singh in cross-examination, ‘The fact that you had made further postings or commentary around that had obviously raised concern for myself.’  58

[134] Mr Brunyee agreed in cross-examination that at the meeting of 6 October 2015, Mr Singh was apologetic. However, he did not at the meeting of 6 October 2015 offer to remove the posts. Mr Brunyee subsequently learned that Mr Singh had removed the posts.

[135] Mr Brunyee was asked by Mr Singh if he had been apologetic, and had said that the ISIS post was made in sarcasm, and had then deleted the posts, what else could he have done to satisfy management? Mr Brunyee answered that working in a very secure and heightened alert environment, it had been necessary to let relevant authorities know of the potential risk. The Perth airport had been contacted, together with the AFP. Aerocare has a reporting culture, and the investigation continued. 59

[136] Mr Singh asked Mr Brunyee if there was anything that he could have done to prevent his dismissal, and suggested his dismissal had then become a foregone conclusion. Mr Brunyee responded that it was necessary for the investigation to continue, despite Mr Singh’s insistence that the ISIS post had been made in sarcasm. However, given that the post had been made on social media, and had been reported to various organisations, it had brought Aerocare’s business into disrepute. 60

[137] Mr Brunyee denied that a decision to terminate Mr Singh’s employment was made at the first meeting with Mr Singh. It is Mr Brunyee’s evidence that the first meeting was an exploratory meeting, to understand why Mr Singh had breached the SM Policy and if he was aware of the policy. 61

[138] Mr Brunyee stated that the Perth Airport and the AFP were undertaking their own investigations into the posts. Both organisations had been made aware by Aerocare of the posts, but their investigations, if any were undertaken, were independent of Aerocare’s decision to terminate Mr Singh’s employment. 62

Breach of Aerocare Social Media Policy

[139] It is Mr Brunyee’s evidence that Mr Singh’s posts breached the Aerocare SM Policy with respect to: ‘An employee’s online presence reflects the views of the company.’ Mr Brunyee answered Mr Singh in cross-examination: 63

‘Okay.  So given the fact that you are linked to various employees by your Facebook page as friends, and as far as I'm aware, possibly through a shift swap group as well, you are linked to the business, you are linked to the company.  So if you're making posts or commentary that could be seen in a negative light in support of any extremism, yes, that through your blogging or through your posting or your liking, did raise concern.  The fact that you work for Aerocare.  You provide services to contractors - well, not to contractors - to our customers, yes, it raised concern.  That is a link to the business.  That is a link to Aerocare and that is a link to, you know, where the breach of policy was sustained.’

[140] Mr Singh challenged Mr Brunyee as to whether his Facebook posts related to Aerocare’s business. Mr Brunyee responded: 64

‘You work in an airport environment which is a highly secure environment, given the fact that we've had some, over the last 24 months, some recent extremist events in airport environments, that does raise a cause for concern.  You work with multiple people that are linked to you as friends through your Facebook profile.  You like an item or you share it or you make comments.  It becomes public.  People see it and it raises concern.’

[141] Mr Singh contended because he did not identify on his Facebook profile that he worked at Aerocare, people would not know that he worked there. Mr Brunyee responded that Mr Singh was active on an Aerocare shift swap page, and other Aerocare employees knew that he had made the relevant posts.

Virgin Australia’s views sought

[142] Mr Brunyee’s evidence is that the client airline, Virgin Australia’s views were considered in the decision to terminate Mr Singh’s employment. Mr Singh suggested to Mr Brunyee that Aerocare had ‘intimidated the AFP and Perth Airport’, but their views were not taken into consideration, yet they are ‘experts in their field’. Mr Brunyee responded that the views of the client airline were specifically taken into account. 65

[143] In re-examination, Mr Brunyee was asked which posts he considered breached Aerocare’s SM Policy. He responded that he considered that all of the posts (all five) made by Mr Singh breached the policy.

[144] At this juncture, I pointed out to Mr S. Hughes that Mr Brunyee had not shown Mr Singh all five posts in the meetings held with him. In particular, he had not shown to Mr Singh the Britain First post. Mr S. Hughes submitted: 66

‘Commissioner, I acknowledge the variation in relation to the full content of the posts.  Obviously the continuing theme is the consistent one which is the HT posting in relation to "We all support ISIS".  There is of course circumstances and cases in which employers are entitled to rely or point to evidence subsequently accumulated or not necessarily put to a former employee in relation to the dismissal, which supports the conclusions and the decision that has been made in the circumstances, as well as in support of any argument against reinstatement which Mr Singh doesn't seek in any event.’

[145] In questioning from me, I asked Mr Brunyee the following: 67

‘Commissioner: Well, paragraph 11 there says that he did not deny or back away.  He didn't resile from making the posts or holding the thoughts and views.  Does that reconcile with Mr Singh having apologised during the meeting for having made the posts?

Mr Brunyee: Yes, it is some form of an apology, if you want to put it that way.’

[146] I questioned Mr Brunyee as to Mr Singh’s response when he was shown the Malcolm Turnbull post during the meeting. Mr Brunyee answered that he could not recall Mr Singh’s exact explanation. His thoughts were that the post was ambiguous. He answered, ‘It’s hard to state whether Mr Singh is promoting the fact of what actually occurred around the initial attack or stating just a general commentary fact around where the political aspect of the country at this stage – at that current state and time was.’  68

[147] Given that Mr Brunyee was, by the time of the hearing still uncertain what the post meant, I asked him if he said to Mr Singh during the meeting, ‘I don’t understand what this post is about. Can you please explain it to me?’ Mr Brunyee answered that he did not. 69

[148] Mr Singh questioned Mr Brunyee and asked him if he recalled that he answered during the meeting that the reasons for the posts was that they are ‘political statements’. Mr Brunyee answered that did not recall that answer given by Mr Singh. 70 He recalled Mr Singh stating that the various posts were made in sarcasm.71

Information given to AFP regarding alternative employment at Perth Airport

[149] Following the termination of employment, Mr Singh secured alternative employment at the Perth Airport. Mr Brunyee’s evidence is that upon learning of Mr Singh’s employment at the Airport, he informed the AFP.

[150] Mr Brunyee stated that he did this because when he had initially discussed Mr Singh’s posts with the AFP, he had been asked to contact the AFP if Aerocare became aware that Mr Singh was working in the airport environment. 72

Evidence of Mr Shelley during the hearing

[151] Mr Singh referred Mr Shelley to the Kateb post and asked Mr Shelley how it breached the Aerocare SM Policy. Mr Shelley was unable to say how the post breached the Policy. 73

[152] Mr Shelley stated, ‘It was evidence of the material that was publicly available that was presented to me.’ Mr Singh asked Mr Shelley if it was included in Mr Shelley’s witness statement, how did it breach the SM Policy? Mr Shelley said he could not say. 74

[153] In relation to the Britain First post, Mr Singh asked Mr Shelley how it violates the SM Policy? Mr Shelley answered, ‘It is an example of alarming material that was presented to me by my subordinate staff in Perth.’  75 Mr Shelley stated that the post was an example of Mr Singh’s Facebook post-sharing extremist information that was relevant at the time.

[154] Mr Shelley stated that Mr Singh had posted a video from Britain First, and his understanding was that Britain First publishes material of an extremist and alarmist nature. 76

[155] Mr Singh questioned Mr Shelley as to how the Malcolm Turnbull post breached Aerocare’s policy. Mr Shelley responded, ‘It was used as an example of commentary that was alarm – or caused alarm to our staff and they presented it to us. That’s why it was included.’  77
[156] Mr Shelley agreed with Mr Singh that the relevant post did not breach Aerocare’s SM Policy, but it was included in his material because it was causing alarm to co-workers. 78

[157] Mr Shelley stated that he considered that the Stockholme Sydnrome post did not breach the SM Policy, but it was presented to Aerocare by staff in Perth and it caused them to be alarmed.

[158] Mr Shelley was asked by Mr Singh if only one of his posts – the ISIS post – breached Aerocare’s social media policy? Mr Shelley answered that he considered the Britain First post to also cause concern. When pressed, Mr Shelley said that there were two posts that were considered to breach the policy.

[159] Mr Shelley’s evidence is that with respect to the ISIS post, given ISIS is a prohibited terrorist organisation, Aerocare’s role in Australian aviation and the importance of safety and security, the post is ‘extremely alarming’. He stated, ‘It has the potential to cause a great deal of harm not only to our airline client, but to the relationship that we enjoy with our airline client.’  79

[160] With respect to the Britain First post, Mr Shelley stated, ‘Liking and publishing an extremist perspective irrespective of the individual video content caused great concern to our employees and on the basis that it causes concern to our employees, that is in direct breach of the Aerocare social media policy.’  80

Protocol: Are you joking?

[161] Mr Singh inquired of Mr Shelley if the protocol to a member of the public if they discuss a bomb or terror concern is to ask them, ‘It’s an offence to joke in such an environment and will you please confirm whether you are joking or you’re actually meaning those things.’ Mr Shelley said that was not his understanding when dealing with that scenario.

[162] Mr Shelley stated that Mr Singh’s response to the investigation, that he had been sarcastic, was not acceptable. Mr Shelley said that he considered that it would be a rare occurrence for an individual to come to an airport environment and make jokes about terror.

[163] Mr Singh suggested to Mr Shelley that the posts made by him were not made on airport premises or on board aircraft and referred Mr Shelley to the Aviation Transport Security Regulations. 81 Mr Shelley responded that airport employees had viewed the posts on airport premises.82

[164] Mr Singh suggested to Mr Shelley that perhaps that might mean that anything posted on social media and read by individuals at an airport could be in breach of the policy? Mr Shelley responded: 83

‘With respect, Mr Singh, the common denominator is yourself being an employee at the airport with access to the SSAA making extremist and alarmist posts that is viewable and read by other employees working in the SSAA.’

[165] ‘SSAA’ is defined within the Regulations as a ‘safety-sensitive aviation activity’.

[166] Mr Shelley supported the decision to terminate Mr Singh’s employment and was party to the decision. 84

[167] Mr Singh suggested that because Mr Brunyee had investigated the issue, he should not also be a part of the team deciding on termination. Mr Shelley rejected that proposition. 85

[168] Mr Singh questioned Mr Shelley if there was ever available a satisfactory explanation or justification, or was the decision always going to be termination of employment? Mr Shelley answered that he could not think of a suitable explanation for publicly supporting ISIS. He further went on to say that Mr Singh’s response of “I’m only joking” was not considered to be an acceptable response. 86

When did Mr Shelley become aware of Britain First?

[169] I inquired of Mr Shelley as to when he first became aware of what Britain First stands for. Mr Shelley explained that he had a telephone conversation with Aerocare’s CEO, Mr Peter Sheehan. Mr Shelley explained that Mr Sheehan was reviewing the Britain First Facebook page, or he was reviewing the internet, and he reported to Mr Shelley that they are an extremist organisation, and preach hate. Mr Shelley was on leave at the time of taking the phone call from Mr Sheehan. 87

[170] Mr Shelley understood that Britain First is a right-wing organisation, opposed to ISIS. Mr Shelley only saw the Britain First post screen shot. He didn’t have access to Mr Singh’s Facebook profile, and could not view the video. Mr Shelley considered the post was expressing extremism, hate and intolerance. 88

[171] The following evidence was given by Mr Shelley: 89

‘Commissioner: What was your understanding of Mr Singh's posting of this;  that he was pro-Britain First or pro ISIS?

Mr Shelley: My understanding at the time of Mr Singh - and I'll put on the record I don't categorise or believe Mr Singh to be a terrorist of any description - however, he subscribed - my impression of him was a person, by these posts, that subscribes to extremist views irrespective of the spectrum on the left-right scale.  The content that he was presenting was alarmist and it was readily accessible to our staff.  They had raised it as a concern and the potential ramifications are extreme and we are also operating in a very specific industry which preaches security, vigilance, reporting, zero tolerance.  We have a procedure whereby anybody, whether they're a passenger or like, if they make jokes - we preach or we train that there is zero tolerance.  The AFP are regularly patrolling the airports and we have had a number of instances where people have allegedly made jokes that have been banned by the airline from flying.  There have been ground return to gates where the aircraft has left the airport and has returned to offload passengers.  We have a huge amount of compliance with respect to safety with regards to baggage, security, gaining access to the aircraft, and so forth.  We take that aspect very, very seriously and we have to consider the potential impact on the Aerocare product as well as that on our client's brand and with respect, we can't accept, "I was just joking", after the event as an explanation.  If we were to be investigating an incident after the event that would not be acceptable, for us to say, "Yes, we had concerns but he assured us it was just a joke."  It's not treated that way with passengers, it's not treated that way with baggage.  If somebody was to write, even jokingly, on an aircraft that there was a bomb onboard or something like that the terminal would be evacuated in accordance with the procedures.  So it's not a long separation between a comment and an event.

Commissioner: ...Are you aware in the material that's been provided for the purposes of this application that Mr Singh identifies of a religion that is diametrically opposed to ISIS.  Have you seen Mr Singh's witness statement?

Mr Shelley: I have.  I have seen Mr Singh's statement.  But, with respect, it was only in April that ISIS in Canada had collaborated with the National Sikh body or an identified Sikh body to conduct terrorist activities in Delhi.  So I am not qualified to make specific cases as to what level of religion will or will not exhibit extremist behaviour.  Likewise, I can't say that a member of one religion won't support the ideology of another.  I am not in a luxurious position to provide the benefit of the doubt on that basis.’

[172] I inquired of Mr Shelley if he was aware that Mr Singh claimed to be apologetic at the meeting(s) and offered to remove the posts? Mr Shelley responded that this had not been communicated to him. The first that Mr Shelley had heard that Mr Singh was apologetic at the meeting was when I questioned him during the hearing. 90

Which airline was Aerocare’s client at the relevant time?

[173] The client airline was Virgin Australia and Virgin Australia Regional. It is Mr Singh’s evidence that he had also been working at Jetstar and Tiger airlines. 91

[174] Mr Singh asked Mr Shelley if it was fair that Virgin Australia had been informed of the investigation, but not given the opportunity to hear from Mr Singh? Mr Shelley replied: ‘In matters of security for their product, absolutely I believe it is fair that they are informed that we are conducting an investigation in relation to such a serious matter.’  92

Evidence of Ms Nilan during the hearing

[175] Mr Singh submitted that during the meeting of 8 October 2015, he opened his Facebook on his phone and showed to Mr Brunyee the various secret groups that he belonged to. In cross-examination of Ms Nilan, he suggested that one of the groups that he belonged to is ‘Australia, The Last Castle’. 93

[176] Ms Nilan’s notes of the meeting of 8 October 2015 refer to Mr Singh being a member of various secret groups on Facebook, including ‘Australia, The Last Castle’.

[177] I take it from Mr Singh’s questioning of Ms Nilan at this time, Mr Singh contended during the meeting of 8 October 2015 that it was in these secret groups that he had made the ISIS post.

Posts made on personal Facebook page, not within secret groups

[178] During the hearing, I asked Mr Singh if he accepted that the only way his work colleagues had come to see the Facebook posts made by him was because they were made on his own Facebook profile, and not in secret groups? Mr Singh conceded that it is likely that he did make the posts on his own page, and not within secret groups to which he belonged. 94

Evidence of Mr Jason McCaughey during the hearing

[179] Mr McCaughey is employed by Aerocare as a Supervisor. I requested at short notice during the hearing for Mr McCaughey to attend the Commission to give evidence in these proceedings.

[180] It is Mr McCaughey’s evidence that he was Mr Singh’s mentor when Mr Singh joined Aerocare. They became friends on Facebook at Mr Singh’s invitation. 95 Mr Singh’s Facebook account was in the name of Sherry Solus Singh.

[181] Mr McCaughey is a member of the Aerocare Shift Swap Facebook group. He knew Mr Singh to also be a member of that group.

[182] On 4 October 2015, Mr McCaughey saw that Mr Singh had posted on his own Facebook page the ISIS post. It was not on any group page; it was on Mr Singh’s Facebook page. 96 Mr McCaughey was at home when he saw the post. He took a photo of it and sent it to Mr Hughes by text. He included words to the following effect, ‘What is this? I don’t believe that this should be working at the airport, someone who supports ISIS.’ 97

[183] It is Mr McCaughey’s evidence that upon seeing the post he felt unsafe. Having a workplace at the airport, and ISIS being a terror group, he considered the post was inappropriate. Mr McCaughey contended that you cannot link such posts when you work at the airport; it’s a security risk zone.

[184] Mr McCaughey stated that if he saw anybody within the Aerocare Shift Swap Facebook group make similar posts, he would report them, no matter who they are. He stated that even ‘liking’ terror-type posts would cause him to report the person. 98

[185] It is Mr McCaughey’s evidence that on commencement, employees are provided with extensive training on security and airport safety. He is aware of Aerocare’s SM Policy. He considered that Mr Singh’s ISIS post went against all training provided. He contended that it constituted a counter-terrorism concern and a security risk. 99

[186] Mr McCaughey was asked what would happen if an airplane passenger or somebody within the airport had said, “We all support ISIS”. Mr McCaughey answered that the person would be asked to repeat the comment, and if they did, they would be immediately arrested by the AFP. If they only said it on the first occasion, they would be removed from the flight. Mr McCaughey contends that there is zero tolerance for such statements, even if one claims to be joking. 100 Later, Mr McCaughey suggested that the AFP might also meet with the individual even on the first time such a statement is made.101

[187] Mr McCaughey recalls that he attended work, and while logged in to Facebook, showed Mr Hughes and Mr Brunyee the Facebook page of Mr Singh. Mr McCaughey had seen three posts made by Mr Singh; the ISIS post, the Malcolm Turnbull post, and the Stockholm Syndrome post.

Written closing submissions of the parties

[188] Following the conclusion of the hearing, I directed the parties to file and serve written closing submissions. On receipt of the parties’ written submissions, I reserved my decision.

Mr Singh’s closing submissions

[189] Mr Singh filed a large volume of closing submissions. A substantial amount of the submissions constituted what might be considered evidence that should have been put by Mr Singh during the hearing or in his written statement before the hearing.

[190] It is necessary that when consideration is given to Mr Singh’s closing submissions regard is had only for submissions that support the evidence given by Mr Singh and other witnesses during the hearing. It is not appropriate that evidence sought to be given by Mr Singh in closing submissions be accepted, given that Aerocare has not had the opportunity to cross-examine Mr Singh in relation to the evidence material put for consideration.

[191] Mr Singh’s submission is that as a member of the Facebook group ‘Australia, The Last Castle’, he had shared on 4 October 2015 posts made by some members of the group. The post of HT Australia, demonstrating in Lakemba, was shared by Mr Singh. It is not contested that he added the words, ‘We all support ISIS’ to the shared post.

[192] It is Mr Singh’s evidence that he shared the post in a sarcastic way. His submissions state that he meant it to mean ‘We do not support ISIS’ or, ‘Not we but only HuT supports ISIS’.

[193] Mr Singh urged the Commission to consider the ‘context’ in the making of the Facebook posts. It is Mr Singh’s evidence and submission that he thought that when he had shared the post, he had shared it within the secret group, later identified as ‘Australia, The Last Castle’. He was not aware that he had shared it on his own Facebook page for Facebook friends, including Aerocare co-workers to see.

[194] Mr Singh sought to file in closing submissions a 37 page document as an annexure. The document is full of print screens from the Aerocare Shift Swap Facebook page. Mr Singh provided this material to support his claim that Aerocare employees, including supervisors and managers regularly engage in breaches of the SM Policy.

[195] Mr Singh did not seek to put this material into evidence. He had the opportunity to do so. I do not admit the annexure into evidence and will have no regard for it in my decision of the application.

Submissions on valid reason - s.387(a)

[196] It is Mr Singh’s submission that the effect of the Form F3, and the evidence given by Mr Shelley and Mr Brunyee demonstrate that Aerocare made a decision to terminate his employment after consideration was given to all five Facebook posts. Mr Singh was not given the opportunity to address the concerns Aerocare had with respect to the Britain First or Kateb posts.

[197] Mr Singh submits that the failure to address with him the Britain First and Kateb posts, relied upon by Aerocare to terminate him, alone would be reason to determine that the dismissal was not for a valid reason.

[198] Mr Singh submits that the Malcolm Turnbull post and the Stockholm Syndrome post could not be held to breach the SM Policy. The posts were Mr Singh’s views on publicly available news sites.

[199] It is contended that Mr Singh’s views made on these two posts are no worse than the Facebook profile meme of Mr Hughes depicting Mr Tony Abbott as an ‘idiot’ at [61] .

[200] Mr Singh relies on a decision of Hatcher VP in Starr v Department of Human Services [2016] FWC 1460. In that case, an employee working at Centrelink had made various online criticisms of the Federal Government, fellow employees and customers of Centrelink. The Vice President determined that there was a valid reason for the dismissal at [78], but various mitigating circumstances resulted in the termination being unfair. It is noted that one of those reasons was Mr Starr’s 21 years’ service with the respondent.

[201] With regard to the Kateb post, Mr Singh submitted that Mr Shelley had stated in cross-examination that he was unable to explain how the post breached the SM Policy.

[202] With regard to the Britain First post, Mr Singh submitted that Aerocare never tried to ascertain through questioning him as to the real meaning of the video. Mr Singh contends that Aerocare formed an opinion based only on the screenshot of a paused video. Mr Singh contends that if the screenshot caused alarm to the respondent, the video could have been viewed through Mr McCaughey’s Facebook profile, or through Britain First’s own publicly available Facebook profile. Alternatively, Mr Singh could have been asked to show the video and explain why he had made such a post.

[203] Mr Singh submitted that Mr Shelley’s concerns that the Britain First post caused concern among Aerocare’s employees does not equate to a breach of the SM Policy.

[204] Mr Singh submitted that four of the five posts do not breach the SM Policy, or for some of the posts, were not put to him for him to allow the consideration of his response. It is contended that only the ISIS post should be measured against the SM Policy.

[205] With respect to the ISIS post, Mr Singh submitted that the SM Policy should not be considered. The argument put by Mr Singh is this:

(a) An external entity cannot establish a direct chain between Mr Singh’s Facebook post and his employment with Aerocare;

(b) Nowhere in Mr Singh’s Facebook profile page or in any of his public posts has he claimed to be working for Aerocare, any of its client airlines, Perth Airport or the airline industry; and

(c) There is no way that any other person, without knowing Mr Singh personally, could conclude that he works for Aerocare, at the Perth Airport or within the airline industry.

[206] Reference was made to a decision of Bissett C in Fitzgerald v Dianna Smith T/A Escape Hair Design [2010] FWA 7358. The following was stated:

‘[54] I do not know how many people ultimately accessed Ms Fitzgerald’s Facebook page or what they thought of what they read. I do know that Ms Fitzgerald did not name the salon where she worked and there is no suggestion that this information was readily available on her page. Whilst clearly the comments were directed at the hairdressing industry I do not consider that the comments were such that they would adversely affect the industry as a whole or Ms Smith’s salon specifically.’

[207] It is necessary, however, to give the full context of the decision of the Commissioner. Mr Singh did not seek to include the following further paragraphs within the above decision, and I consider it necessary to include for relevant consideration:

‘[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’.  102

[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.’

[208] Mr Singh contends that even if a connection had been drawn between his post and working at Aerocare, the views still would only have reflected his own views, and could not be extended to include Aerocare’s name or interests.

[209] It is suggested that the only people who would be aware that the Facebook page Mr Singh was using was that of an Aerocare employee would be fellow Aerocare employees using the Aerocare Shift Swap Facebook group.

[210] In dissecting the SM Policy and the ISIS post, Mr Singh contended that the only possible breach of the Policy was with respect to:

‘…and are discouraged from publishing web-blogs or other publications that are intended to, or may have the result of, causing harm to Aerocare.’

[211] Mr Singh concedes that the ISIS post may cause some negative attention to Aerocare if reported in the media. Mr Singh submitted that it is unfair to be dismissed for a subjective and single breach of the SM Policy.

[212] With respect to the ISIS post having been made sarcastically, and explained to Mr Brunyee as having been made sarcastically, Mr Singh contends that Aerocare never made any effort to understand Mr Singh’s sarcasm. He did not make the post in the form of a joke.

[213] Mr Singh’s evidence is that following the meeting of 6 October 2015 he made steps to delete the Facebook profile.

[214] Mr Singh submitted that Mr Shelley’s evidence that members of the Sikh religion had assassinated former Indian Prime Minister Ghandi does not take into consideration Mr Singh’s own personal meanings and interpretations of what it means to be a Sikh. Mr Singh submitted that if Aerocare extrapolated that thinking further, “persons of no other religion of the world can be trusted to work with as every religion at some point in history has had few radical elements in it that used violent means to terrorise others to achieve their extremist ends.” 103

[215] In addition, Mr Singh’s evidence, supported by Mr Brunyee and Ms Nilan is that he apologised for the relevant posts at the meeting of 8 October 2015.

[216] In summary, Mr Singh submitted that during the meetings of 6 and 8 October 2015 he did the following:

(a) Honestly owned both the Facebook profile and the subject posts without excuse;

(b) Explained that he never supported ISIS or any religious extremism;

(c) Explained the reason of sarcastic meaning in the comment made in the post;

(d) Pro-actively offered and indeed deleted both the ISIS post and his Facebook profile;

(e) Gave his personal reasons (being a Sikh) for not supporting religious extremism; and

(f) Apologised to Mr Brunyee for any unintentional concern caused to Aerocare or any of its employees.

[217] In relation to the potential effect of the ISIS post, Mr Singh submitted that the ISIS post was available on the Facebook page for only three days; from 4 October 2015 until 6 October 2015. He considers that only his Facebook friends could have viewed it during this time.

[218] Mr Singh contends that Aerocare had raised matters of national security and aviation security as one of the reasons to dismiss him. He submits, however, that Aerocare was never primarily concerned about the security implications of the ISIS post. Mr Singh submits that this is evident due to the fact that Mr Brunyee had become aware of the ISIS post at around 12.30pm on 4 October 2015, but had not informed the AFP until around 7.45pm that evening. Mr Singh submitted that there was a failure to act promptly in security-sensitive matters, where a worker allegedly supporting a terrorist group has airside access of an airport.

[219] Mr Singh secured alternative employment at the Perth Airport following his dismissal from Aerocare, and accordingly, Perth Airport found no objection to issuing to Mr Singh security access for his new employment.

Submissions on notification of the valid reason - s.387(b)

[220] Mr Singh agrees that he was notified on 4 October 2015 that he was being suspended with payment while an investigation was being conducted. Mr Singh was notified of three Facebook posts of concern during the meetings of 6 and 8 October 2015.

Submissions on opportunity to respond - s.387(c)

[221] Mr Singh submitted that he was given an opportunity to respond to his reasons relating to three posts made by him in the meetings of 6 and 8 October 2015.

Submissions on unreasonable refusal by the employer to allow a support person - s.387(d)

[222] Mr Singh agrees that there was no refusal by Aerocare to allow Mr Singh to have a support person at the meeting of 8 October 2015.

Submissions on warnings regarding unsatisfactory performance - s.387(e)

[223] Mr Singh was not dismissed for unsatisfactory performance.

Submissions on the impact of the size of the Respondent on procedures followed - s.387(f) and any absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[224] Mr Singh submitted that Aerocare is a reasonably large employer with dedicated human resource management specialists, and access to external legal counsel. Mr Singh contends that despite access to relevant professionals, Aerocare violated its Disciplinary Procedure while investigating Mr Singh’s posts.

[225] Further, Mr Singh made various submissions with respect to alleged bias of Mr Shelley and Mr Brunyee. He did not, however, in cross-examination of these witnesses put it to them that they were biased in their investigation. Mr Singh did suggest to Mr Shelley in cross-examination that Mr Brunyee might not be impartial, as he had investigated the matter, and been part of the decision-making team. He did not, however, put to each witness that they were biased in their decision making.

Submissions on other relevant matters - s.387(h)

[226] Mr Singh contended that prior to making the ISIS post, he had an unblemished employment record.

[227] Aerocare’s decision-makers during the hearing could not provide any explanation that could have been given by Mr Singh that would have resulted in his employment continuing. It is Mr Singh’s submission that in such a scenario, Aerocare’s final decision strengthens the view that Mr Singh’s dismissal was a foregone conclusion even before the investigation started. Irrespective of Mr Singh’s explanations and submissions in the disciplinary process, it was conducted only to display the outer fairness of the dismissal process. It is submitted that the investigation and the disciplinary process were designed with Mr Singh’s termination of employment in mind.

Aerocare’s closing submissions

[228] Aerocare, being responsible for all aspects of baggage and freight-handling from check-in to aircraft loading takes its role in airport and aviation safety and security seriously. It errs on the side of caution and conservatism in its handling of disciplinary and performance issues.

[229] Mr Singh’s explanations for his posts were that they were jokes or that they were sarcasm. This might only be surmised by having to read the entire chain of some posts of extremist political or religious content.

[230] Alternatively, Aerocare submitted that Mr Singh’s explanation is that he was entitled to make or comment on extremist political or religious commentary in his capacity as a private citizen in his private time. Is Mr Singh’s only error that he intended to make the posts in a private extremist political social media group of which he is a member, and instead made the posts on his own Facebook page?

[231] Alternatively, it is submitted that Mr Singh’s explanation is that he is entitled to make comment on extremist political or religious commentary in his capacity as a private citizen in his private time because the Facebook profile he used was under an alias?

[232] Aerocare agrees that it showed only three posts to Mr Singh during the investigation.

[233] It is submitted by Aerocare that the other two posts were received subsequent to Mr Singh’s dismissal, but included in the Form F3 to demonstrate an indicative sample of Mr Singh’s social media activities.

[234] It is contended that the additional two posts – the Britain First and the Kateb posts – were not part of the investigation resulting in the dismissal, however Aerocare is entitled to refer to them as further post-termination evidence of conduct of Mr Singh that, if known at the time of his dismissal, would have further supported Aerocare’s decision to terminate Mr Singh’s employment. It also is useful to demonstrate that reinstatement would not be a suitable remedy in the event Mr Singh’s application was successful.

[235] It is submitted that procedural fairness was afforded to Mr Singh. He was given a fair and reasonable opportunity to prepare his responses and submissions to Aerocare at two meetings across several days.

Submissions on valid reason - s.387(a)

[236] Aerocare submitted that there was a valid reason for Mr Singh’s dismissal related to his conduct. He had made a number of social media posts, including and primarily a post relating to the known and Australian Government listed terrorist organisation commonly referred to as ISIS. The posts were seen on Mr Singh’s Facebook profile accessible by a number of his colleagues at Aerocare.

[237] The Facebook page used by Mr Singh used his own photograph, despite using an alias. Mr Singh was also a member of the Aerocare Shift Swap Facebook group.

[238] The nature and content of Mr Singh’s ISIS post was such that it caused sufficient fear and concern in a co-worker and supervisor to cause them to report to Aerocare management the post. The post was then reported to Aerocare’s customer, Perth Airport and to the AFP as a potential public and aviation security and safety concern.

[239] In the view of Aerocare’s management, the ISIS post was considered to have the potential to publically bring Aerocare’s reputation and business into disrepute.

[240] Mr Singh was notified of this concern during the meetings held with him. The notes of the meeting evidence this concern.

[241] The ISIS post was sufficient to cause Aerocare (and any reasonable and objective person) alarm and concern, and would be sufficient to justify dismissal in the absence of any or any reasonable explanation or justification from Mr Singh.

[242] When providing a response to management as to why he had made the ISIS post, he had simply responded that it was sarcasm. He had not provided any additional comment or material on the post to indicate that the post was made in sarcasm.

[243] Mr Singh had stated that he had made the posts on a Facebook page that he did not believe could or should be associated with his employment with Aerocare. He considered that he had made the posts in a secret group which was anti-ISIS and anti-extremist Islam.

[244] It is submitted that Mr Singh was initially apologetic at the meeting of 6 October 2015, but by 8 October 2015 his position was more of entitlement and justification to make the posts and of perception of inconsistent treatment based on alleged activities of other employees, rather than addressing the seriousness of his own actions.

[245] Aerocare’s submission is that Mr Singh continues to assert that he was unfairly treated on the basis that Aerocare ought to have accepted his ‘paltry excuses’ and explanation for his social media postings, and that his conduct did not amount to a security, safety or public confidence risk despite the face value nature and content of his identified postings.

[246] Aerocare submitted that the three posts put to Mr Singh had reasonably caused Aerocare’s employees and management alarm and concern. The lack of satisfaction with Mr Singh’s explanation and justification amounted to a valid reason for the dismissal.

[247] Aerocare’s decision to dismiss Mr Singh was not a disproportionate response to the admitted conduct given the degree of concern and alarm his conduct caused his co-workers and management, customers and the AFP.

Submissions on notification of the valid reason - s.387(b)

[248] Mr Singh was notified of the reason for the reason given for termination.

Submissions on opportunity to respond - s.387(c)

[249] It is submitted that Mr Singh was given an opportunity to respond and provide an explanation as to his conduct.

Submissions on unreasonable refusal by the employer to allow a support person - s.387(d)

[250] It is submitted that Mr Singh was invited to have a support person at the meetings of 6 and 8 October 2015, but declined to have or arrange one.

Submissions on warnings regarding unsatisfactory performance - s.387(e)

[251] It is submitted that Mr Singh had been warned in the context of extensive employment induction and continuous and on-going training that employees were to be extremely circumspect in their behaviour in matters relevant to their employment. Inappropriate behaviour, including social media posts that potentially brought the reputation of Aerocare into disrepute and caused concerns about aviation or airport security and safety could result in disciplinary action, including dismissal. Mr Singh had undergone and successfully passed this relevant training.

Submissions on the impact of the size of the Respondent on procedures followed - s.387(f) and any absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[252] Aerocare is a large employer. It enforces policies and procedures for effecting dismissals.

[253] Aerocare has a dedicated human resource management team. The team was involved in Mr Singh’s dismissal.

Submissions on other relevant matters - s.387(h)

[254] It is submitted that the Commission should take ‘judicial notice’ of the well-documented rise of extremism and terrorist action internationally and within Australia. It is submitted:

‘Reported events have shown previously average and normal members of the Australian community, who have no prior criminal or mental health history, committing to radical and terrorist action. The fact that the Applicant’s activities exclusively involved regular postings and commentary on this topic was alarming to the Respondent. The Respondent submits that its action in dismissing the Applicant in the circumstances and against this backdrop was reasonable and not unjust or unfair. It is submitted that had the Respondent given the Applicant the benefit of the doubt and continued his employment only for him to radicalise sometime in the future, the Respondent would be pilloried for failing to have taken action at this time to remove him from employment in an easy access to an aviation security zone.’

Harsh, unjust or unreasonable

[255] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[256] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[257] I am under a duty to consider each of these criteria in reaching my conclusion. 104

[258] I will now consider each of the criteria at s.387 of the Act separately.

Valid reason - s.387(a)

[259] There was no factual dispute in the proceedings that Mr Singh engaged in the conduct – this is, making the Facebook posts. Mr Singh accepts that he made the posts on his own Facebook page, and not within a secret Facebook group.

[260] The assessment of whether there was a valid reason for Mr Singh’s dismissal based on his conduct involves a characterisation of the nature and gravity of that conduct having regard to the SM Policy, and relevant consideration of required conduct in the high-risk security environment of an airport workplace.

[261] In undertaking that task, I shall adopt the approach taken by the Full Bench majority (Lawler VP and Cribb C) in B, C and D v Australian Postal Corporation T/A Australia Post 105 that the issue of whether a valid reason for the dismissal exists for the purpose of s.387(a) is to be determined from the employer’s perspective. Without diminution of the employee’s case, the issues of substantive fairness from the employee’s perspective are to be considered separately. Accordingly I will deal with any mitigating circumstances as other relevant matters under s.387(h).

[262] At the time of meeting with Mr Singh on 6 October 2015, Aerocare had in its possession copies of three posts made by Mr Singh on his Facebook page. They are:

● The ISIS post;

● The Malcolm Turnbull post; and

● The Stockholm Syndrome post.

[263] In written evidence at [53], Mr Singh suggested that the ISIS post had been a shared news item on Facebook. It was not a news report. It was a post from a religious extremist group (HuT) that had been discovered by members of another extremist group, ‘Australia The Last Castle’, and then shared.

[264] In sharing the post, Mr Singh was not simply sharing a widely distributed online news article. He was sharing a post made by a group with known sympathies towards terror group, ISIS.

[265] In adding the words, ‘We all support ISIS’, and sharing the post onto his Facebook page, Mr Singh’s conduct was then open to interpretation by whoever read the post. Such a post, made by any person within Australia, would necessarily cause concern. In many it would reasonably cause fear. Relevant authorities within Australia are known to investigate such postings, and it would, without doubt, cause relevant authorities to make inquiries because of the use of those words, ‘We all support ISIS’.

[266] The ISIS post caused Mr Singh’s fellow employees to be alarmed and concerned. Mr Rumac and Mr McCaughey did not suspect that Mr Singh had made the post; other than somebody else using Mr Singh’s Facebook profile, they knew that he had made the post as they had knowledge that it was his Facebook profile, despite the alias.

[267] When asked why he had made the ISIS post, Mr Singh sought to explain that he had been sarcastic. Ms Nilan’s notes demonstrate that Mr Singh said during the meeting of 6 October 2015 that he does not support ISIS.

[268] It was open to Aerocare to not accept Mr Singh’s protestations that he does not support ISIS, and to not accept his reasons for making the post. However, it would not be available to Aerocare to fairly make this finding until very much later in the investigation. It would also be necessary for Aerocare to adequately report all of Mr Singh’s responses to the management team making the determination.

[269] At the meeting of 6 October 2015, Mr Singh explained that he does not support ISIS, and the post was made in sarcasm. It was incumbent on Aerocare to give that response greater consideration.

[270] I accept that Aerocare did give Mr Singh’s response further consideration on 8 October 2015, but it is a relatively short period of time to conduct an important investigation.

[271] During the meeting of 6 October 2015, Mr Singh was also asked questions with respect to the Stockholm Syndrome post. He was not asked about the Malcolm Turnbull post until 8 October 2015.

[272] I expect that Mr Singh’s explanation for remarking ‘Stockholm Syndrome’ on the post would likely to have been lost on Mr Brunyee and Ms Nilan. It’s somewhat of an absurd statement in light of the tragic shooting of Mr Cheng. I understand, through the evidence given by Mr Singh and his submissions what he understands he meant in making the statement, but at the time of posting it and providing an explanation on 6 October 2015, it would likely to have been considered political diatribe.

[273] Following the meeting of 6 October 2015, Mr Singh still had in his possession the ASIC. Mr Singh later used it to access Aerocare’s offices for the meeting of 8 October 2015. If Mr Singh was, indeed, a security risk having made the ISIS post, Aerocare should have directed Mr Singh to return the ASIC at the end of the meeting of 6 October 2015, or even taken it from him on 4 October 2015 until the investigation was completed.

[274] It was important and necessary to meet again with Mr Singh on 8 October 2015. Mr Singh had by this time also continued online commentary in the form of the Malcolm Turnbull post. In a similar vain to the Stockholm Syndrome post, I accept that when Mr Singh sought to explain why he had, post-suspension made the Malcolm Turnbull post, his explanation would have been considered as political ramblings.

[275] Mr Singh sought to explain in the meeting of 8 October 2015 that he is a member of various secret groups on Facebook. He named them: ‘Australia The Last Castle’, ‘Reclaim Australia’ and ‘Australia Free Country’. He stated that these groups are against ISIS and religious extremism.

[276] I consider that it would have been prudent for Aerocare to spend some further time investigating Mr Singh’s assertions that he was, in fact, opposed to ISIS. Aerocare has conceded, through various witnesses, that it no longer considers the Malcolm Turnbull post and the Stockholm Syndrome post to be in breach of the SM Policy.

[277] I accept that it was important and necessary to inquire of Mr Singh why he had made these posts. However, having determined that the posts did not breach the policy, Aerocare is then left with only one post, the ISIS post, on which to rely upon to constitute a valid reason for the dismissal. He was, however, dismissed for making all three posts, and perhaps for all five posts.

[278] I have no doubt that Mr Singh would have been difficult to interview on 8 October 2015. Mr Singh believed passionately in his right to post online about matters of interest to him. The evidence is that he made 10-20 posts per day about relevant issues, and this was a dramatic reduction in the postings made by him when compared to having lived in India. Ms Nilan’s notes reflect that Mr Singh reported that he made less posts in Australia, as the country has a lower population of Muslims living in the country when compared with India. I take from that Mr Singh considered Australia to be safer from Islamic extremism than India.

[279] I do not accept Mr Singh’s contention made during the meeting of 8 October 2015, in his evidence and in submissions that because he made the ISIS post away from the airport, it is not related to his employment.

[280] In circumstances where an employee’s alleged misconduct occurred outside of work it is necessary to identify the principles defining the extent to which the employer is entitled to regulate, and take disciplinary action in relation to, “out of hours” conduct. The usually applicable principles were stated in Rose v Telstra Corporation Limited 106 to be 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.’

[281] In the decision in Starr, Hatcher VP stated the following:

‘[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 with the Rose v Telstra circumstances.’

[282] Mr Singh is not entitled to, as a public citizen, express a view of ‘We all support ISIS’ and it not factor in the consideration of his employer as to whether he is a person suitable to be airside of an airport, or to work within an airport at all. If Mr Singh did, for example, attend a meeting of 6 October 2015, and report that he does, in fact, support ISIS, I would have no hesitation in finding a valid reason for the dismissal. I would find so, on the basis of the secure airport environment in which the work was performed.

[283] It would not be necessary for me to determine where the post was initially made. Whether it was made at home or at or near the airport would not be a consideration. Any decision in the scenario above would not be limited as to whether there is a purported breach of the Regulations referred to. The bare fact that an employee with responsibility of and access to baggage facilities near aircraft would be a sufficient and valid reason to warrant the dismissal of a declared ISIS supporter.

[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.

[287] The policy does not require that the potential harm be a result of a transparent announcement of employment with Aerocare. When making such an outrageous post, ‘We all support ISIS’, an individual cannot expect that this would be met with silence, or without inquiry. Had the matter immediately come to the attention of the media at or around 4 October 2015, it would not have mattered at all if Mr Singh’s profile was not readily identifiable as that of an Aerocare employee. The media would, in all likelihood have made relevant inquiries and exposed Mr Singh’s employment with Aerocare within a very short period of time.

[288] Similarly, if an Aerocare employee had, according to Mr Singh’s own wishes, reported the post directly to authorities or to the AFP, instead of to Aerocare, this would likely have caused harm to Aerocare. If a report had been made at first instance to authorities at the Perth Airport by a fellow Aerocare employee that ‘there is an Aerocare employee who says on Facebook that he supports ISIS’, I consider that the reporting of this event would cause harm to Aerocare. Aerocare would be directed to commence an immediate inquiry into the allegation, and it is expected that Perth Airport officials would require an appropriate response to an investigation.

[289] Mr Singh also submitted that he thought he had made the relevant posts within a secret group. It is not clear if Mr Singh’ evidence is that he had thought he had made all five posts within a secret group, or just some of them.

[290] With respect to the Malcolm Turnbull post, I accept that he had shared a widely circulated online news article. I do not consider that Mr Singh had intended that to be shared within a secret group. The post was made after his employment had been suspended. If he had thought it prudent to provide political commentary on his views of how the Prime Minister handled the tragic Parramatta shooting, it was incumbent on him to discuss that with like-minded people. He would have had to expect his employer might be reviewing his Facebook profile to determine if he made any more posts in support of religious extremists.

[291] With respect to the Stockholm Syndrome post, I accept that he commented on a widely circulated online news article. This could not be said to have been shared only within a secret group. It was a public commentary and his comment was readily visible to Facebook friends and to the Facebook readers and commentators reading that news article.

[292] Despite Mr Singh’s response to Aerocare during the investigation that he thought he had made the posts within a secret group with like-minded individuals, even if he had made the ISIS post within such a group, it would not have a material outcome on the findings of this Commission. If it had been discovered that Mr Singh had made a pro-ISIS Facebook post, and he worked in a high security environment at the airport, and he in fact did support ISIS, I would not hesitate to find a valid reason for dismissal. It would not matter that the post had been made within a secret group.

[293] In fact, if the above scenario had occurred, and Mr Singh accounted for being a supporter of ISIS, I would support a valid reason for dismissal not just on a breach of the SM Policy. It would be far too great a risk, regardless of whether a breach of the policy existed or not, for an employee to be employed in that environment with those extreme views, and the potential for a terror threat. In any event, I expect that if it was reported that the investigation concluded that the person did hold pro-ISIS views, and they worked airside, those in control of the airport would make a determination that the individual would not be accredited, regardless of the employer’s consideration of the employment.

[294] Having considered the above, I find it unsatisfactory for Aerocare to have failed to properly investigate Mr Singh’s Facebook account. It was available to Aerocare through Mr Rumac’s Facebook login, to have reviewed Mr Singh’s complete Facebook newsfeed. If time and attention had been taken to review Mr Singh’s Facebook newsfeed, Aerocare would have discovered that Mr Singh is not, in fact, a supporter of ISIS. Aerocare was informed of that during the meetings, but was not satisfied with Mr Singh’s response. It did not accept the answer of ‘sarcasm’.

[295] Alternatively, Mr Singh could have been invited to explain to Mr Brunyee all recent posts made by him on Facebook. This exercise would have taken no more than 1-2 hours, and satisfied Aerocare that Mr Singh was not an ISIS supporter.

[296] If the above inquiries had been undertaken, the scenario would still have been that Mr Singh had made a ridiculous statement on Facebook, ‘We all support ISIS’. Mr Singh’s explanation of the post having been made in sarcasm is what Aerocare would have been left to determine.

[297] I do not consider the 10 minute break during the meeting of 8 October 2015 to report on Mr Singh’s response as at all suitable or satisfactory. The evidence of Aerocare is that a phone call was made to Mr Brunyee’s superiors. It is impossible for Mr Brunyee to have adequately explained during this telephone call all of the matters that were discussed during the meeting. I accept that Ms Nilan’s hand-written notes would have been available during the 10 minute discussion.

[298] Mr Shelley’s evidence is that Mr Singh’s response of “I’m only joking” to the ISIS post was not considered to be an acceptable response. I do not accept that at any point in time Mr Singh said in respect of the ISIS post that he had been joking. His consistent response was that it had been said in sarcasm.

[299] Further, Mr Shelley’s oral evidence is that it had not been reported to him that Mr Singh had apologised for the posts during the meetings held with him. Mr Shelley was a member of the management team tasked with making a determination on Mr Singh’s disciplinary interview. Mr Brunyee failed to adequately report to Mr Shelley and other decision makers the full account of the meeting held on 8 October 2015.

[300] It would have been a more appropriate step for Aerocare to have continued Mr Singh’s suspension, distributed the notes of the two meetings to relevant decision makers, and make further inquiries with respect to Mr Singh’s Facebook account. Even if the Facebook profile had been temporarily de-activated, it is clear that it was not permanently deleted.

[301] I do not accept the evidence of Aerocare’s witnesses that the Britain First post was first discovered subsequent to Mr Singh’s dismissal. On Mr Shelley’s evidence, he was informed of the Britain First post by Aerocare’s CEO. I conclude that Mr Shelley and others within Aerocare had regard for Britain First post in the determination of the dismissal. This post had not been put to Mr Singh to learn his response.

[302] I can understand the alarm that might be caused when considering the screenshot of the Britain First post. The screenshot depicts translation to the effect of destroying America and destroying Britain. If, however, Mr Singh had been questioned in relation to this post, he would have been in a position to inform Aerocare that the video has been highlighted by Britain First as an Islamic extremist video. Had he been given the opportunity, he would have explained that he is opposed to the views represented in the video.

[303] I accept that Aerocare representatives hold views with respect to Britain First and its own place as an extremist group. It is, however, not a banned organisation in Australia, and if Mr Singh wished to belong to this group on Facebook, that is his wish. If Mr Singh’s posts with respect to the group then breached the SM Policy, it would be a matter for discussion at that particular time.

[304] Mr Shelley’s oral evidence is that the Britain First post shared by Mr Singh breaches the SM Policy. It was not, however, something put to Mr Singh during the investigation for his response. It is unacceptable for Aerocare to have withheld from the investigation the Britain First post.

[305] With respect to the Kateb post, it too was withheld from the investigation. Mr Shelley concedes that the post does not breach the SM Policy.

[306] Having considered all of the above, I find the decision of Aerocare and its reliance on posts that on its own witnesses’ admissions do not breach the SM Policy, does not constitute a valid reason for dismissal.

[307] Reliance only on the ISIS post made by Mr Singh similarly does not constitute a valid reason for dismissal. Upon further and adequate inquiry, and proper deliberation of Mr Singh’s response (certainly greater than just 10 minutes), it should have been accepted that Mr Singh had made a grave error of judgment in making the sarcastic ISIS post.

[308] Whilst I accept that the ISIS post did breach the SM Policy, and Mr Singh had been afforded relevant training in relation to the policy and required standards of employees in a high security-risk environment, in light of Mr Singh’s response, I do not find there was a valid reason for the dismissal.

[309] On being presented with the ISIS post on 6 October 2015, Mr Singh is correct in that he agreed he had made the post. He explained during the meeting that he does not support ISIS, and is opposed to ISIS. He sought to explain that he had made the post in sarcasm.

[310] I do not accept that on 6 October 2015 he had volunteered to delete the post and his Facebook account, but by the meeting of 8 October 2015, he had done so.

[311] At the meeting of 8 October 2015 he had also apologised for having made the post.

[312] Mr Singh’s responses given on 6 and 8 October 2015 were not properly considered. The relevant decision makers held a view on 8 October 2015 that Mr Singh might indeed be a religious extremist who may sympathise with ISIS. They did so based on more than just the ISIS post, when I have found, and on Aerocare’s witnesses’ evidence there was no basis to do so.

[313] Alternatively, the decision makers had closed their minds to how Mr Singh could mitigate a breach of the SM Policy. I find that there was nothing that Mr Singh could have said to Mr Brunyee to have convinced Aerocare to make a decision other than to terminate his employment.

[314] There is no evidence before me that Aerocare considered any other sanction. It did not properly investigate Mr Singh’s Facebook profile; the decision makers considered he had breached the SM Policy with respect to numerous posts, and therefore it must result in the termination of his employment.

[315] A more thorough investigation, including obtaining a written account from Mr Singh would have satisfied Aerocare that Mr Singh did not support ISIS. A reasonable conclusion would then be that the ISIS post was an incredibly stupid post to have been made.

[316] With the above information available, it would have been appropriate to meet with Mr Singh and reiterate the SM Policy, and seek an assurance from him that he would, in all forms of social media interaction, whether within profiles or closed or secret groups, comply with the SM Policy. Aerocare would have been at liberty to inform Mr Singh that any subsequent breach of the SM Policy, whether made in a profile of his own name or otherwise, in a closed group or in public would result in the termination of his employment.

[317] My finding, however, should not suggest that it is acceptable for employees in the relevant airport environment to post what appears to be support for a terrorist organisation and explain it away as sarcasm, comedy or satire. Mr Singh did a very stupid thing. I expect that even if the ISIS post had been made within the ‘Australia, The Last Castle’ secret Facebook group, he would have met with derision and likely reporting to authorities of his post.

[318] The ISIS post does not even have the look of sarcasm. It is not witty. It is not funny. It is a ridiculous post.

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

[319] Mr Singh was notified of the reason for his dismissal.

Opportunity to respond - s.387(c)

[320] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.¹⁰⁷

[321] While it has been held that the criterion should not be burdened with formality, it is curious as to why Mr Singh was not invited to respond in writing to explain why he made the three posts the concern of Aerocare. If he had been afforded the opportunity to respond in writing, it could have been given consideration by the managers who determined the outcome of the investigation. Instead, the relevant managers were given a quick telephone account of Mr Singh’s responses by Mr Brunyee. The telephone meeting concluded in 10 minutes; scant enough time for Mr Brunyee to give a proper account of Mr Singh’s full response.

[322] Having regard to my comments above, Mr Singh was given an opportunity to respond to Mr Brunyee’s questioning during the meeting of 8 October 2015.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[323] Mr Singh was offered the opportunity to bring a support person with him to the meeting of 8 October 2015, which he declined.

Warnings regarding unsatisfactory performance - s.387(e)

[324] Mr Singh was not dismissed for unsatisfactory performance, so the issue of whether he had any prior warnings for unsatisfactory performance does not arise.

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

[325] Aerocare is a reasonably large employer with a dedicated human resources function.

[326] I find that the size of Aerocare’s enterprise did not impact on the procedures following in effecting the dismissal.

[327] This is a neutral consideration in determining whether the termination of Mr Singh’s employment was harsh, unjust or unreasonable.

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

[328] Aerocare has dedicated human resources personnel.

[329] This is a neutral consideration in determining whether the termination of Mr Singh’s employment was harsh, unjust or unreasonable.

Other relevant matters - s.387(h)

[330] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. I consider the following matters to be relevant to the determination of whether the dismissal of the Mr Singh was harsh, unjust or unreasonable:

Allegation of impartiality and conflict of interest

[331] Mr Singh contended that Mr Brunyee was not impartial, or held a conflict of interest in both being the investigator, and having a part to play in the decision to terminate his employment.

[332] I do not accept Mr Singh’s submissions. I do not hold any concerns in relation to a person in Mr Brunyee’s decision being appointed as the relevant investigator, and also being a part of the management team determining the outcome of the investigation.

Length of service and age

[333] Mr Singh had been employed as a casual employee for approximately 14 months. This is not a long period of time.

[334] Mr Singh’s training records demonstrate that he was aged approximately 35 at the time of the dismissal.

Post-dismissal employment

[335] Mr Singh stated during the hearing that he had secured suitable employment in late November 2015. He did, however, from the bar table report that due to the media attention of his application to the Commission, his employment had ended.

Conclusion

[336] Having regard to my considerations above, I find that Mr Singh’s dismissal was harsh, unjust and unreasonable.

Remedy

[337] Section 390 of the Act reads as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

[338] Mr Singh is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether he can be reinstated.

[339] Mr Singh does not seek reinstatement. Aerocare’s submissions oppose Mr Singh’s reinstatement in the event that his application succeeds. In light of Mr Singh’s express statement that he does not wish to be reinstated, I am satisfied that reinstatement of Mr Singh is inappropriate.

[340] Section 392 of the Act provides:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

Authorities

[341] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket¹⁰⁸. That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey¹⁰⁹; Jetstar Airways Pty Ltd v Neeteson-Lemkes¹¹⁰ and McCulloch v Calvary Health Care¹¹¹ (McCulloch).

[342] I have had regard to the above authorities.

The effect of the order on the viability of Aerocare

[343] Aerocare concedes that an award of compensation in this matter would not affect the viability of Aerocare.

The length of Mr Singh’s service

[344] Mr Singh had been employed as a casual employee for just 14 months.

[345] Aerocare seeks to rely on a decision of SDP Richards in Davidson v Griffiths Muir’s Pty Ltd [2010] FWA 4342. His Honour determined at [140]:

‘As an employee for a short period of time, the length of Applicant’s service with the Respondent on its own is not a powerful force making for a compensation remedy (or a compensation order of significant quantum)”

The remuneration that Mr Singh would have received, or would have been likely to receive, if he had not been dismissed

[346] I am of the view that Mr Singh’s employment would not have continued for an extended period of time. Mr Singh’s statement to Aerocare on 8 October 2015 is that he is a prolific poster, making 10-20 posts on social media per day.

[347] Mr Singh’s evidence is that following the meeting of 6 October 2015, he deactivated (temporarily) his Facebook account, but created a number of new accounts.

[348] In my view, Mr Singh would have likely to have continued making various social media posts beyond any investigation of Aerocare. If Mr Singh sought to make posts believing he could freely do so if he did not use his own name, or did not identify as an Aerocare employee, he would find himself mistaken.

[349] This is demonstrated by the fact that following Mr Singh’s suspension of employment on 4 October 2015, he then made the Stockholm Syndrome post. It seems that Mr Singh could not help but become involved in online conversation related to an alleged terror attack involving a young Muslim and the killing of a police support worker.

[350] I expect that Mr Singh’s casual employment would have concluded within a relatively short period of time, that being eight weeks from the date of the dismissal.

The efforts of Mr Singh (if any) to mitigate the loss suffered because of the dismissal

[351] Mr Singh successfully mitigated the loss of his employment by securing alternative work within a period of around seven weeks.

The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

[352] Mr Singh submitted that his loss of income between the period of the dismissal and securing suitable alternative employment was $7,000 gross. Aerocare informed the Commission that it accepted the amount stated by Mr Singh. I understand that this represents a weekly rate of $1,000.

[353] There is no evidence as to Mr Singh’s remuneration earned beyond the date of the hearing.

The amount of any income reasonably likely to be so earned by Mr Singh during the period between the making of the order for compensation and the actual compensation

[354] This factor is not relevant in the circumstances of this matter.

Other relevant matters

[355] The parties did not make submissions in relation to this criterion.

Misconduct reduces amount

[356] Section 392(3) requires that if the Commission is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct. While Mr Singh’s conduct was not serious misconduct, it is capable of being found as misconduct.

[357] The section requires that consideration be given by the Commission to whether misconduct contributed to the decision to dismiss an employee even where it has been found there was no valid reason for the termination.¹¹²  The absence of a valid reason may be relevant to the appropriate amount by which compensation should be reduced.¹¹³

[358] I have found earlier that the ISIS post made by Mr Singh breached the SM Policy. Accordingly, Mr Singh making the ISIS post constitutes misconduct. I understand that Mr Singh did not think his actions could be linked to the workplace, however that assumption was incorrect.

[359] Having regard to the material before me, I consider it appropriate to make a reduction of 40% to the amount of compensation I would otherwise order on account of Mr Singh’s misconduct.

Shock, distress etc. disregarded

[360] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Mr Singh by the manner of the dismissal.

Compensation Cap

[361] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.

[362] The high income threshold immediately prior to the dismissal was $136,700. Mr Singh earned less than the high income threshold.

[363] The amount Mr Singh would have earned, or to which Mr Singh was entitled, for the 26 week period immediately prior to the dismissal was $1000 per week x 26 = $26,000.

[364] The amount of compensation the Commission will order does not exceed the compensation cap.

Payment by instalments

[365] Aerocare is a large employer, and therefore it is not necessary for Aerocare to pay the amount of compensation by way of instalments. Consequently, Aerocare is to pay the amount of compensation within 14 days of the date of this decision.

Order of compensation

[366] I have determined that Aerocare is to pay to Mr Singh the amount of $4,800 less tax as required by law. The amount of $4,800 represents eight weeks’ wages, less 40% for misconduct.

[367] An Order [PR585384] to that effect will be issued with this decision.

COMMISSIONER

Appearances:

Mr N. Singh on his own behalf

Mr S.Hughes of Piper Alderman on behalf of Aerocare Flight Support Pty Ltd

Hearing details:

24 May 2016 in Brisbane via video-link to Perth

Final written submissions:

Applicant: 24 June 2016

Respondent: 30 June 2016

 1   PN129.

 2   PN229.

 3   PN940.

 4   PN1328.

 5   PN943.

 6   PN945.

 7   Witness statement of Mr Greg Hughes at [3].

 8   Ibid.

 9   Ibid at [4].

 10   Witness statement of Mr Paul Brunyee at [6].

 11   Ibid at [21].

 12   Witness statement of Mr Nirmal Singh at [B2vii] on page 3.

 13   Ibid at [B3i] on page 3.

 14   Ibid at [iii] on page 10.

 15   Ibid at [8] on page 11.

 16   Witness statement of Mr Luke Shelley at [7].

 17   Ibid at [9].

 18   Ibid at [12].

 19   PN355.

 20   PN369.

 21   PN375.

 22   PN376.

 23   PN460.

 24   PN463.

 25   PN237.

 26   PN242.

 27   PN244.

 28   PN251.

 29   PN255.

 30   PN255.

 31   PN260.

 32   PN263.

 33   PN268.

 34   PN272 and PN280.

 35   PN282.

 36   PN284.

 37   PN292.

 38   PN296.

 39   PN298.

 40   PN299.

 41   PN475.

 42   PN1442.

 43   PN539.

 44   PN540.

 45   PN542.

 46   PN545.

 47   PN571.

 48   PN572.

 49   PN576.

 50   PN578.

 51   PN579.

 52   PN579.

 53   PN580.

 54   PN1016.

 55   PN1021.

 56   PN1055.

 57   PN1066.

 58   PN1067.

 59   PN1093.

 60   PN1095.

 61   PN1100.

 62   PN1107.

 63   PN1124.

 64   PN1128.

 65   PN1164.

 66   PN1194.

 67   PN1218.

 68   PN1224.

 69   PN1247.

 70   PN1261.

 71   PN1262.

 72   PN1176.

 73   PN650.

 74   PN654.

 75   PN656.

 76   PN661.

 77   PN670.

 78   PN671.

 79   PN692.

 80   PN693.

 81   PN746.

 82   PN748.

 83   PN759.

 84   PN775 and PN777.

 85   PN781.

 86   PN805.

 87   PN820.

 88   PN825.

 89   PN826.

 90   PN841.

 91   PN788.

 92   PN792.

 93   PN1527.

 94   PN1558.

 95   PN1306.

 96   PN1319.

 97   PN1328.

 98   PN1337.

 99   PN1347.

 100   PN1349.

 101   PN1450.

 102   Rose v Telstra, AIRC Print Q9292 (4 December 1998).

 103   Applicant’s closing submissions at [27.6].

 104   Sayer v Melsteel [2011] FWAFB 7498 at [20]

 105   [2013] FWCFB 6191 at [35] and [42]-[46]

 106   Print Q9292 [1998] AIRC 1592 (4 December 1998)

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

108 (1998) 88 IR 21.

109 [2013] FWCFB 431.

110 [2014] FWCFB 8683.

111 [2015] FWCFB 2267.

112 Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762 [83].

113 Ibid.

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