| FWC 8211 [Note: An appeal pursuant to s.604 (C2016/7131) was lodged against this decision - refer to Full Bench decision dated 6 February 2017 [ FWCFB 768] for result of appeal.]|
|FAIR WORK COMMISSION|
Fair Work Act 2009
Murray’s Australia Pty Limited T/A Murray’s Australia
VICE PRESIDENT WATSON
MELBOURNE, 16 NOVEMBER 2016
Application for relief from unfair dismissal.
 This decision is an amended version of a decision given on transcript on 8 November 2016 in relation to an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) by Mr Abdul Soomro arising from the termination of his employment with Murray’s Australia (Murray’s).
 The application before the Commission alleges that Mr Soomro’s termination of employment by Murray’s was harsh, unjust and unreasonable. The termination of his employment was effected by letter dated 14 July 2016 and relies upon matters addressed in a letter to Mr Soomro from Murray’s dated 7 July 2016.
 The task of determining whether the dismissal was harsh, unjust or unreasonable is to be performed by reference to s.387 of the Act. That section sets out the factors that the Commission must take into account in determining the fairness of the dismissal. Those matters are regarded as matters of significance in determining the ultimate question and they require findings of fact based on the evidence led in these proceedings.
 The first matter is whether there was a valid reason for the dismissal related to Mr Soomro’s capacity or conduct including its effect on the safety and welfare of other employees. The evidence before me establishes that the reasons for dismissal, as I have said, are set out in a letter of 7 July 2016. The chronology of events leading to that letter involved a complaint made by Ms Vanessa Tsakos against Mr Soomro’s behaviour. That complaint led to the establishment of an investigation into the allegations.
 Mr Soomro was advised on 30 May as to the particular allegations which would be subject to the investigation and was advised of his opportunity to attend a meeting to respond to those allegations. The allegations subject to the investigation included allegations of breaches of Murrays’ Equal Opportunity, Discrimination, Harassment, Bullying and Workplace Violence Policy (the Policy), breaches of the Policy at work, and set out in various particulars, the details of those allegations.
 The allegations also extended to allegations of dishonesty during the preliminary investigation and interview regarding the matters, the subject of Ms Tsakos’ complaint. It appears that during the investigation, other matters were uncovered by the investigator based on representations of various drivers and other employees of Murray’s and these were also subject to findings by the investigator set out in the letter of 7 July 2016.
 On the evidence before this Commission, I find that Mr Soomro did engage in conduct that is dealt with in the allegations subject to the investigation. In particular, I find that he sent repeated unsolicited text messages to Ms Tsakos in the latter part of 2015. Those messages were either not responded to or responded to negatively and with requests not to contact her.
 I also find on the evidence that an informal complaint was made by Ms Tsakos. Mr Blewitt raised this matter with Mr Soomro after that complaint was made and asked Mr Soomro to stop that conduct. Mr Soomro agreed not to interact with Ms Tsakos unless it was work related. In that respect there is some conflict in the evidence and I accept the evidence of Mr Blewitt and I do not find that the version of events as contended by Mr Soomro should be accepted.
 The bundles of text messages presented in evidence from April 2016 also included text messages apparently sent from a landline number, under the pseudonym “Yakflyer1”. Those messages are in evidence, having been provided by Ms Tsakos to the investigator. I find on the evidence and on the balance of probabilities that Mr Soomro was responsible for those messages and that those messages represented serious breaches of the Policy.
 A number of the messages and contacts were made outside of work hours, however, a number were also made during work hours. Whether they were outside of work or not, they were clearly of an inappropriate nature; they related to contact that was clearly unwelcome and related to and had implications for the relationship between employees of Murray’s. These were legitimate considerations of Murray’s in considering whether Mr Soomro’s conduct amounted to misconduct in relation to his contract of employment. I also find that the allegations relating to dishonesty in the investigation were established on the evidence before me.
 The other evidence relating to events and comments to workmates and individuals appear to have come to light subsequently and, in my view, are minor compared to the allegations of stalking and harassment. Although it appears that certain conduct was engaged in which was clearly inappropriate I do not consider that they are the most significant matters in relation to Mr Soomro’s overall conduct.
 Having regard to all of that evidence, I find that there was a valid reason for Mr Soomro’s dismissal and it related to his conduct and the health and safety of other employees, particularly Ms Tsakos.
 The next considerations I am required to make findings about are whether Mr Soomro was notified of that reason and the related factor of whether he was given an opportunity to respond to that reason relating to his conduct. When Ms Tsakos made her complaint, Murray’s set up an investigation into those allegations. It advised Mr Soomro of the allegations. The investigator gave Mr Soomro an opportunity to make a statement. He availed himself of that opportunity. The investigator then made findings, which were communicated to Mr Soomro. He was given the opportunity to respond to the findings. Mr Soomro was also given the opportunity to respond to the position of Murray’s that on the basis of the findings, it proposed to terminate his employment for misconduct.
 Mr Soomro attended a meeting and made representations with a support person, Mr Stephen Guy. Murray’s had regard to those representations in ultimately deciding to terminate Mr Soomro’s employment by way of the letter of 14 July 2016. There was no unreasonable refusal or any refusal to allow a support person to be present during discussions relating to Mr Soomro’s dismissal.
 The dismissal related to conduct, not unsatisfactory performance. Nevertheless, Mr Soomro was warned about his behaviour following the informal complaint made by Ms Tsakos. Notwithstanding that warning, it appears that his subsequent behaviour was totally inconsistent with the warning that he was given. I find that Mr Soomro was given a warning about this matter despite his denials that such a warning occurred.
 The other factors specified in s.387 related to the size of the employer’s enterprise do not appear to be particularly relevant in this case. The significant matter of relevance, however, is a matter of proportionality. The question is whether the conduct that has been found to exist warranted termination of employment or some lesser disciplinary sanction.
 I have had regard to the allegations, the evidence and the findings of fact that I have made in relation to the misconduct Mr Soomro engaged in. I consider that the misconduct was extremely serious. It is especially serious given that he was warned to stop the behaviour and the conduct was clearly inappropriate and amounted to harassment of a fellow employee in a totally inappropriate manner. I find that the dismissal of Mr Soomro was a proportionate response to the conduct that was found to exist.
 For all of those reasons I do not consider that the dismissal was harsh, unjust or unreasonable and I therefore dismiss the application.
Mr Shaw, R of counsel on behalf of Mr Abdul Soomro.
Ms Preston, R of counsel with Ms Williamson, C on behalf of Murray’s Australia.
7, 8 November.
Final written submissions:
Mr Soomro on 19 September 2016.
Murray’s Australia on 25 October 2016.
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