DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mohammed Ayub
v
NSW Trains
(U2016/4407)

Application for unfair dismissal remedy – valid reason for dismissal found – procedural fairness afforded – dismissal not harsh, unjust or unreasonable – application dismissed.

[1] Mr Mohammed Ayub (the applicant) has applied under s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy against his former employer, NSW Trains (the respondent).

[2] The applicant filed his application on 8 February 2016. The respondent filed a jurisdictional objection alleging the application was filed out of time. Notwithstanding this objection, the matter proceeded to conciliation, but was not settled. Following the unsuccessful conciliation, the jurisdictional objection was upheld. 1 Mr Ayub successfully appealed that decision2 and his original application for unfair dismissal remedy was referred to me for arbitration on 30 November 2016.

[3] I issued directions for the filing of evidence and written submissions. The matter was heard on 23 February 2017. The applicant was represented by Mr P Livers, solicitor, and the respondent by Mr A Woods, solicitor.

[4] The applicant tendered two witness statements, dated 10 January 2017 3 and 21 February 2017.4

[5] The respondent tendered:

● a witness statement of Mr Jeff Golding (Senior Consultant, Transport for NSW) dated 8 February 2017; 5

● a witness statement of Ms Samantha Hudson (Regional General Manager, NSW Trains) dated 8 February 2017; 6

● a witness statement of Mr Michael Wain (formerly Business Leadership Partner, NSW Trains) dated 8 February 2017; 7

● a tender bundle (volumes 1 and 2); 8 and

● a statement of Mr Robert Austin (formerly Regional Service Delivery Manager, Central Station) dated 8 February 2017. 9

[6] Only the applicant and Mr Austin were cross-examined.

The facts

[7] The following is a summary of the relevant facts, based on the evidence presented during the proceedings. I should indicate at the outset that I found the applicant to be an unpersuasive witness. During his cross-examination, he was evasive 10 and argumentative.11 He was often unwilling to answer the questions put to him12 or concede even the clearest of facts.13 By contrast, I found that the only witness for the respondent who was cross-examined (Mr Austin) gave his evidence in a clear and direct manner. Accordingly, where there is a conflict in the evidence of the applicant and that of the respondent, I generally prefer the latter. This is reflected in the following summary.

[8] The applicant had been employed by NSW Trains (and its predecessors) since 31 May 1982. Immediately prior to his dismissal, he was employed as a Customer Service Team Leader at Central Station. Over the course of his employment, he had received numerous sanctions for breaches of the respondent’s code of conduct, including (seven) fines, (six) suspensions and (three) final warnings. 14 When asked about one of the final warnings (relating to a failure to follow a direction from his manager, Mr Purcell) he said that he could not recall who gave him the warning or what it was about.

‘…I have been given a final warning, but I can’t remember who from… Or what it related to, exactly.’ 15

[9] The applicant’s answers to questioning from the Bench were to the effect that he did not recall much about the final warning he had received because he did not take it seriously:

‘…in those days because, you know, there were final warnings before you got – you know, there were final warnings before you got – you know, in those days, your Honour, I don’t know how long you have been – you know, I beg your pardon, sorry but in those days ---

(THE SENIOR DEPUTY PRESIDENT: I have been dealing with rails for over 12 years?) --- Okay, in those days, 1997, things were not that strict. People overlooked things and Mr Purcell has got things against me and this is the reason he is making things more serious than what they are and definitely because now I know things have changed and they have changed for, you know, for the worse for the employees and better for the employer. But then again definitely I recall the final warning, but nothing eventuated after that.’ 16

[10] The applicant did, however, agree that final warnings were ‘a big thing’ by 2015. 17

[11] Mr Ayub had received regular training in the respondent’s (and its predecessors’) code of conduct. 18

[12] In around August 2014, the applicant was transferred to NSW Trains from Sydney Trains as part of the restructure of CityRail. Mr Austin was his manager from this time until his dismissal.

[13] In the afternoon of 16 December 2014, in the afternoon, the applicant asked Mr Austin whether he could take leave to travel to Fiji because his father-in-law was unwell. He indicated that he wished to take leave from 17 December 2014 for an indefinite period of time. Mr Austin and the applicant went to see the rostering team. They were informed that there were no NSW Trains relief staff available to cover his shifts until Sunday 21 December 2014. 19

[14] Mr Austin told the applicant that he would call the Customer Service Manager at Sydney Trains to see if he had any spare staff to cover the applicant’s shifts. He advised the applicant that if he could not find any cover, he would need to attend work the next day. 20

[15] Mr Austin and the applicant spoke again that night. The applicant said that the airline tickets for his journey had already been bought. Mr Austin told him that he did not have approved leave because there was no cover. He was told that he could have leave from 21 December 2014. 21

[16] Early the next morning, the Platform Manager, Mr Adra, rang Mr Austin and told him that the applicant had asked to have his shift covered. Mr Austin told Mr Adra that the applicant did not have cover yet. 22

[17] At around 7:00 am, Mr Adra rang Mr Austin again and said the applicant had left work. Mr Austin tried to call the applicant but he did not answer. He sent the applicant a text message and informed him that leaving work was unacceptable and asked when he would return to work. The applicant replied to Mr Austin that he thought Mr Lattouf was relieving him and that he could leave work. Mr Austin informed the applicant that no one had given him authority to leave. 23

[18] It appears that Mr Lattouf had agreed to cover the applicant’s shift that day. However, there were three other shifts (18-20 December 2014) for which cover needed to be found. Mr Austin, as the only person with the authority to do so, 24 had not authorised the applicant to leave.25

[19] The applicant left his car in one of the parking spots at Central Station reserved for staff working that day. The applicant had asked security to look after his car. 26 He did not return to work until 5 January 2015.27

[20] The Workplace Conduct and Performance Unit subsequently conducted an investigation conducted into this incident. The investigation concluded that the applicant had absented himself without approval or authorisation by NSW Trains, failed to comply with a reasonable lawful direction and instruction given by his supervisor, and left his personal vehicle in parking reserved for use by NSW Trains personnel during working hours. 28

[21] The applicant was advised on 1 May 2015 that a preliminary decision had been made to issue him with a final warning. 29

[22] On 19 May 2015, a Platform Manager, Mr Exner, rang Mr Austin and told him there had been an incident in which the applicant had abused another Platform Manager, Mr Singh, over the phone. 30

[23] Mr Austin then spoke to Mr Singh, who was visibly upset, crying and shaking. Mr Singh told him that the applicant had made comments such as ‘You should cut your hair and throw your turban away’ and ‘Punjabis are very good people but you are disgusting’. 31

[24] The applicant was suspended from work while an investigation was conducted into this incident. 32

[25] It appears from the applicant’s evidence that he was at home on a rostered day off when Mr Singh contacted him by phone to offer him an overtime afternoon shift. He was annoyed, as he had previously advised that he was only available to work morning shifts. 33 In his written reply to the investigation, he denied that he had told Mr Singh that he was ‘disgusting’, though he conceded during cross-examination that he had said this.34

[26] When asked at the hearing whether he accepted that calling someone disgusting was offensive, the applicant replied:

‘If they’re disgusting, they need to be told.’ 35

[27] On 25 May 2015, the applicant sent an email to Ms Hudson attaching a letter dated 22 May 2015. In the email, the applicant said that the letter was in response to the letter he had received in early May 2015 advising him that a preliminary decision had been made to issue him with a final warning in relation to his unauthorised absence in December 2014 and January 2015. 36

[28] The letter read:

‘Dear Ms. Hudson,

In regards to the letter I received on 4^th May 2015, I would like to submit this letter before any outcome is determined.

Allegation 1
I, absolutely did not absent myself from work without approval or authorization. Mr. Rob Austin directed Platform Manage Mr. Wissam Adra to find me a relief. The only purpose for me to get relieved was to travel overseas. Copy of email is attached from Mr. Marcel Lattouf who relieved me on the day. It is precise clear that I was officially relieved. Mr Austin is not being authentic and given his background of working for underworld figure John Ibrahim he is bringing dishonesty into NSW Trains. Once I questioned him about his past employment he told me this.

Allegation 2
I, did not fail to comply with lawful instructions given by my Manager in fact he accompanied by Sydney Trains Manager Mr. Nick Poucha and C.S.T.L. Mr. Marcel Lattouf came to me to get me relieved.

Allegation 3
I dropped my family at the airport at 5:30am and drove to work. I gave up all hope of travelling but when I was relieved at 7:10am I had to leave my car in the car park in Employee Parking and advice the security department about my situation. If my car was illegally parked, Police would have issued me with infringement notice but I didn’t received any notice.

This whole thing is deliberately bullying and harassment by Mr. Austin and his Platform Managers, as someone at NSW Trains has informed me that these people are after me. I am worried that if I bring out this gentleman’s name he might be bullied as I am getting bullied now.

I will take this matter further if justice is not done.

Yours sincerely,
Mohammed Ayub’ 37

[29] Ms Hudson responded by asking Mr Wain to organise a meeting with the applicant to discuss his allegations of bullying and harassment. 38 She also took steps to remove Mr Austin from his ‘two-up’ management role in respect of the applicant while the allegations were considered.

[30] On 2 June 2015, a meeting of the Disciplinary Review Panel determined that the applicant should be given a first and final warning for his unauthorised absence in December 2014 and January 2015. He received formal advice of this outcome on 17 June 2015. 39

[31] Mr Wain and Ms Bantin (who was at that time the Lead Business Partner, People and Corporate Services) met with the applicant on 11 June 2015. They told the applicant they took the allegations he had made very seriously, but that there was insufficient information in his letter to allow an investigation. In particular, they explained to the applicant that he needed to provide specific and detailed information in writing about the timing of incidents, what had occurred and whether there were any witnesses. Mr Wain gave the applicant the contact details of Mr Golding of the Workplace Conduct Investigation Unit in the event he wanted to make a formal complaint. 40

[32] Mr Wain and Ms Bantin referred the applicant to the respondent’s Bullying Policy and advised him that if he made allegations that were found to be vexatious and/or frivolous, disciplinary action may be recommended against him. 41

[33] The applicant did not provide any further information at that time concerning his allegations of bullying and harassment. 42

[34] On 26 June 2015, Ms Hudson received an email from the applicant attaching a letter dated 25 June 2015. This letter included the following:

‘… Sam [Adra] realizes he was appointed Platform Manager by help of Rob [Austin] so it’s payback time when he is asked by Rob to jump, he does. …

Rob Austin started the whole relieve saga and now he has shifted all this on to me. Given his background of working for underworld figure John Ibrahim and how he was given a top job in NSW trains, in according to my judgement through other corrupt Managers. His actions are like this, he lends me a $100.00 note takes the serial number of it and then calls police that I have stolen $100.00. He should be suspended till this investigation is properly and thoroughly looked at by proper and honest group and not corrupt work place conduct unit, not these people who looked at this case and come to a corrupted result of “Final Warning”. You people have to remove the entire panel as I have been hearing from Rob that this matter had gone before a panel.

I will be taking this matter to International level based on QC Jeffery Robertson who used to host Insight on T.V. that Australian Justice System has gone backwards and people should read between the lines. He is Human Rights Lawyer (QC). I will be seeking his assistance in getting Justice. Its high time N.S.W. Trains get their act together and have honest people to run the show. …

The whole case is fabricated. I have been Bullied, Harassed, and Victimized by Rob Austin and entire Workplace Conduct Unit. They are protecting Rob Austin.’ 43

[35] On 24 June 2015, the Workplace Conduct and Performance Unit referred the investigation report regarding the incident involving Mr Singh to the Disciplinary Review Panel (DRP) for review. The investigation found that the applicant had engaged in unacceptable behaviour by becoming abusive and making a number of inappropriate comments to Mr Singh. He was found to have breached his requirements under the Code of Conduct, Transport Prevention and Management of Bullying and Harassment Policy, and Transport Discrimination Free Workplace Policy. 44

[36] On 29 June 2015, the DRP made a preliminary decision of two weeks’ suspension without pay and counselling in Diversity and Inclusion Awareness. 45

[37] In an apparent response to this preliminary decision, on 23 July 2015 the applicant sent a letter to Ms Hudson. The letter included the following:

‘… Mr Singh knew perfectly that I don’t do afternoon overtime shifts. He deliberately called me in the morning of 19/05/2015 and had 2 witnesses as a set up as part of bullying and harassment plan. These witnesses would have been sitting on top of each other’s lap and of Indian origin because the conversation was in Hindi and English.

Mr Singh’s claims are so sense less that he claims I told him to cut his hair. Mr Singh doesn’t have hair or so, it seems because he wears turban and I don’t have transparent eyes. I never told him to throw away his turban he is making things up as he goes. … During this conversation I absolutely did not mention his hair and didn’t tell him to throw his turban away, he has fabricated this. Mr. Singh just cannot get his facts right. Sydney Trains Employee and his own countryman Hari Singh (A very religious person) told me a number of times NOT to trust Kulwinder Singh. He was 100% true. …

Mr Singh has acted corruptly by making his countryman a C.S.A.T.J to jump 2 levels and act as Platform Manager a number of times. … Mr Singh spends lot of his time when at work doing his personnel things, he has bought land at Bella Vista and trying to construct his house as an owner builder. Sydney Trains Platform Managers have complained about him hiding in there office and doing his personnel business and also using railways computer in Sydney Trains Office.

This is clear cut harassment and bullying by these staff. This is deliberately and calculated set up. Railways have a responsibility to act fairly and justly and correct unjust treatment of staff, so far they have failed totally. DRP had also failed by having bunch of one sided unprofessional staff who has acted unjustly in 2 of my cases.

If this nonsense does not stop immediately and 2 weeks suspension without pay is NOT reversed I will definitely be taking this to higher level. I know there is corruption on level Management and this will be brought out in open.

This whole thing is unsubstantiated. What have you people done about Mr. Rob Austin, his substantiated corrupt and mistreatment of me regarding my holidays. You people have rewarded him by promoting him in Samantha Hudson’s position. What about Singh also promote him to Robs Position? You all are JOKE.

I DID NOT make these comments to Mr. Singh:

A). “I shouldn’t trust you.”
B). “I am telling you in Hindi and English but you don’t understand either.”
C). “You should cut your hair and throw your turban away.”
D). “Punjabi’s are very good people but you are disgusting.”
E). “You are crook, you are thief”.

I want justice which I have not been given.’ 46

[38] On 11 August 2015, the DRP made a final recommendation that the applicant be suspended for two weeks as a result of the Singh incident. The DRP specifically rejected the applicant’s claim that he was set up with the phone call being on speaker and witnesses present. It considered this to be unlikely as it was the applicant who made the phone call to Mr Singh. 47

[39] The applicant did not make any formal complaint of bullying. 48 However, the Workplace Conduct and Investigation Unit (WCIU) reviewed the letter the applicant sent to Ms Hudson on 25 June 2015 in which he made allegations of bullying and harassment by Mr. Austin and ‘his’ Platform Managers ‘to discern which of his allegations were set out with enough specificity’ to be investigated.49

[40] Mr Golding, who conducted the review, considered that there was a general lack of detail in the letter, and therefore it was difficult to determine what the applicant was alleging had taken place. He considered the main allegations to be:

• that Mr Austin was corrupt and was an associate of the nightclub owner, John Ibrahim; and



• that the WCIU had corruptly investigated the allegations made against the applicant concerning his unauthorised leave. 50

[41] Mr Golding subsequently investigated Mr Austin’s history and background (including various licences he held that required thorough police background checks). His investigation found that the allegation that Mr Austin was an associate of Mr Ibrahim was baseless. 51 It was decided that the allegations made by the applicant in relation to the WCIU lacked enough detail to be properly substantiated or investigated.52

[42] On 27 August 2016, Ms Hudson met with the applicant and his union representative to deliver the formal letter advising him of the two week suspension, discuss the arrangements for the suspension and counselling and explain the appeals process. At the meeting, he applicant became increasingly upset and said words to the effect of ‘I am being set up by Rob Austin. The higher I go the more corrupt you all are, including the workplace conduct people.’ The applicant said he thought Mr Singh, Mr Austin and Ms Hudson were corrupt, among others. Ms Hudson explained that the preliminary investigation had found no evidence of corrupt conduct. Ms Hudson told the applicant that if he had further details, witnesses or evidence of corrupt conduct she would request that the WCIU appoint an investigator to look into his complaints. 53

[43] On 28 August 2015, Ms Hudson emailed Brendon Gillies from the WCIU requesting that an interview be conducted to investigate the applicant’s allegations. 54

[44] Given that the applicant’s allegations included complaints that the WCIU itself had corruptly investigated his complaints, it was more appropriate for an independent investigator to conduct an investigation. On 8 September 2015, the WCIU engaged Peter Moroney of Nemesis Consulting to investigate the applicant’s allegations of misconduct. Mr Moroney was asked to undertake a fact-finding interview with the applicant, identify any potential witnesses to claims made by the applicant and advise WCIU whether there was sufficient information to proceed with a formal investigation into the concerns raised by the applicant. 55

[45] On 11 September 2015, the Director, People and Corporate Services, John Hussey, wrote to the applicant, referring to his letters of 22 May, 25 June and 23 July 2015. He noted that in each case, the applicant had made comments and allegations against other staff members, NSW Trains management and members of the DRP that were ‘unsubstantiated, offensive, inaccurate and racially discriminative’. Excerpts from the various letters were included. Mr Hussey wrote:

‘NSW Trains believes that the comments in your letters are in breach of the Code of Conduct as you have failed to treat colleagues fairly and with respect and your comments were neither professional nor reasonable.

It is also noted that you were issued with a final warning on 17 June 2015.
I note in particular that your allegations in relation to Mr Austin in your letter of 22 May 2015 and 25 June 2015 were investigated by the Workplace Conduct Investigation Unit and were found to be unsubstantiated.

Therefore, you are requested to provide substantiation of the comments identified above within 14 days of receipt of this letter. These statements and submissions will be considered in relation to whether any further disciplinary action, including termination of employment, should be considered. Failure to do so will result in NSW Trains proceeding on the basis of the content of your letters.’ 56

[46] On 23 September 2015, the applicant phoned Ms Hudson. The applicant requested that she send him all correspondence about the allegations against him. Ms Hudson advised him that he already had copies of that correspondence. The applicant became angry and raised his voice and said words to the effect of ‘the higher I go the more corrupt you all are’. As the applicant refused to stop yelling, Ms Hudson ended the call. 57

[47] On 6 October 2015, the DRP met to consider the applicant’s conduct in sending the letters with the allegations about other staff members. The DRP made a preliminary recommendation that the applicant be dismissed. The DRP noted that the applicant had made no response to Mr Hussey’s letter of 11 September 2015. 58

[48] Ms Hudson wrote to the applicant on 16 October 2015 advising him of the DRP’s preliminary recommendation. The applicant was given 14 days to respond to the proposed outcome. 59 The applicant was subsequently granted an extension to file his response. This was at least in part to ensure that the Nemesis report was available to the DRP prior to it making its final decision.60

[49] On 13 November 2015, the WCIU referred the Nemesis report to the DRP. The report found that all the allegations made by the applicant about Mr Austin, Mr Singh and Ms Hudson were unfounded. It concluded:

‘The fact-finding investigation is now complete. Simply stated, there is no evidence obtained that would warrant advancing any of the allegations raised by Mr Ayub any further.’ 61

[50] On 16 November 2015, the applicant’s union, the Australian Rail, Tram & Bus Industry Union, NSW Branch (RTBU), provided a response to the DRP’s preliminary decision on his behalf.

[51] This response included the following:

● While the applicant admits that he made the comments complained about in his letters of 22 May 2015, 25 June 2015, and 23 July 2015, he was under a great deal of stress due to a number of alleged bullying incidents;
● The applicant was not thinking clearly when he made the comments, due to the bullying and NSW Trains’ failure to deal with them properly;
● NSW Trains had failed to follow its own procedures in dealing with the bullying allegations;
● It would be harsh and unreasonable for NSW Trains to dismiss the applicant, given that there were other disciplinary options available and these had not been given proper consideration. 62

[52] The DRP met to consider its final recommendation concerning the applicant’s conduct in sending the May, June and July letters. The DRP took into account:

● the allegations made in the letters the applicant wrote in May, June and July;
● Mr Golding’s investigation report;
● the response provided by the RTBU on behalf of the applicant; and
● the Nemesis report. 63

[53] The DRP noted the applicant had made his allegations repeatedly, but had never provided any evidence to back them up. Nor had he shown any remorse or demonstrated any intention to improve his behaviour in the future. Both the WCIU and Nemesis had found that the allegations were unsubstantiated. The DRP also took into account the applicant’s overall disciplinary history and the 2014 and 2015 matters in particular. The DRP made the final recommendation to dismiss the applicant. 64

[54] The RTBU sought a review of the DRP’s final decision on the applicant’s behalf. On 13 January 2016, the Transport for NSW Disciplinary Panel reviewed the decision and determined that the decision to dismiss should be affirmed. The Disciplinary Panel sent a letter to the applicant on 14 January 2016 advising him of this decision. 65

Consideration

[55] In considering whether the applicant’s dismissal was harsh, unjust or unreasonable, the Fair Work Commission (the Commission) is required to take into account the factors outlined in s.387 of the FW Act. These are:

‘(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.’

[56] I do not consider it necessary to determine whether the applicant’s unauthorised absence in December 2014 and January 2015 or his behaviour in the Mr Singh incident were valid reasons for his dismissal. While they are relevant to demonstrate that the applicant’s disciplinary record was far from unblemished prior to the May, June and July letters, they were not ultimately the reasons the respondent relied upon to terminate his employment.

[57] The applicant was dismissed because of the various unsubstantiated allegations the applicant made against a number of his colleagues in his letters of 22 May, 25 June and 23 July 2015. These allegations included that Mr Austin could not be trusted because he had underworld associations, that Mr Austin had gained his position because of the corruption of other managers, that Mr Singh was corrupt, that the WCIU was corrupt, that the DRP was also corrupt and that Mr Austin and the WCIU had bullied, victimised and harassed the applicant.

[58] There is no doubt that these are extremely serious allegations. Despite this, at no time either before the Commission proceedings, or during them, did Mr Ayub proffer the least shred of evidence to back them up. There is absolutely no evidence before me that any of the accused persons are corrupt in any way, nor is there any evidence that any of them bullied, harassed or victimised the applicant.

[59] Mr Ayub submitted that he was only replying to the allegations made against him during the disciplinary process. His attitude seemed to be that if someone made an allegation against him he was entitled to respond with his own allegations – however baseless:

‘If you are going to make a complaint against me, I will make a complaint against you.’ 66

[60] That is nonsense. It is reasonable to infer that Mr Ayub made the allegations vexatiously, not because he had some rational basis for believing them to be true, but in order to divert attention away from his own misconduct.

[61] No employer should be expected to tolerate this sort of behaviour. It was potentially extremely damaging to the well-being and morale of a number of Mr Ayub’s colleagues. It also meant that the respondent had to waste significant resources on a wild goose chase trying to investigate a number of baseless allegations.

[62] I am satisfied that the respondent had a valid reason to dismiss the applicant.

[63] The respondent is a large State-owned corporation with considerable human resource management expertise at its disposal. It followed an elaborate process before finally deciding to dismiss the applicant. I can find nothing of substance to criticise in that process. He was given very clear notice of the allegations against him and given ample opportunity to respond to those allegations, which he took. The respondent did its best to investigate the applicant’s allegations.

[64] While it is appropriate to have regard to the applicant’s long employment history with the respondent, a consideration of that history must also include his extremely poor disciplinary record. Moreover, neither prior to his dismissal nor during the proceedings themselves did the applicant indicate any contrition, or that he might be inclined to change his behaviour.

[65] As I have said previously:

‘“Whistleblowers” have an important role to play in our society, which deserves protection. No employee should face the risk of being dismissed merely because he or she makes a serious complaint of wrongdoing by a manager. Moreover, the mere fact that a complaint turns out to be wrong, by itself, should not lead to termination.’ 67

[66] However, that principle assumes the ‘whistleblower’ is acting in good faith. It is not a licence for employees to act in the irresponsible manner adopted by the applicant.

[67] The applicant’s dismissal was not harsh, unjust or unreasonable. His application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr P Livers of Slattery Thompson appeared for the Applicant.

Mr A Wood of Henry Davis York appeared for the Respondent.

Hearing details:

Sydney.

2017.

February 23.

 1   [2016] FWC 4623.

 2   [2016] FWCFB 5500.

 3   Exhibit A1.

 4   Exhibit A2.

 5   Exhibit T1.

 6   Exhibit T2.

 7   Exhibit T3.

 8   Exhibit T4.

 9   Exhibit T5.

 10   E.g. PN195-PN198, PN207, PN243, PN286.

 11   See e.g. PN162-PN174.

 12   See e.g. PN212.

 13   See e.g. PN216-PN228, PN238, PN249, PN254, PN266, PN268, PN271, PN280.

 14   Exhibit T4 pp 174-5.

 15   PN312-PN313.

 16   PN317-PN318.

 17   PN348.

 18   Exhibit T5 [13].

 19   Ibid [19].

 20   Ibid [20].

 21   Ibid [24].

 22   Ibid [26].

 23   Ibid [27].

 24   As conceded by the applicant at PN472, PN482, PN491 and PN516.

 25   Exhibit T5 [28].

 26   Ibid [29].

 27   Ibid [32].

 28   Exhibit T4 pp 4-13.

 29   Exhibit T2 [14].

 30   Exhibit T5 [35].

 31   Ibid [36].

 32   Ibid [40].

 33   PN735.

 34   PN704.

 35   PN708.

 36   Exhibit T2 [18].

 37   Exhibit T4 p 83.

 38   Exhibit T4 p 81.

 39   Exhibit T2 [24]-[27].

 40   Exhibit T3 [6]-[8].

 41   Ibid [10].

 42   PN530.

 43   Exhibit T4 pp 229-30.

 44   Ibid pp 148-56.

 45   Ibid pp 244-6.

 46   Ibid pp 248-9.

 47   Ibid p 252.

 48   Exhibit T1 [7].

 49   Ibid [9].

 50   Ibid [10].

 51   Exhibit T4 pp 261-2.

 52   Exhibit T1 [20].

 53   Exhibit T2 [50]-[52].

 54   Ibid [55].

 55   Exhibit T1 [24]-[27]; exhibit T4 p 274.

 56   Exhibit T4 pp 278-80.

 57   Exhibit T2 [58]; exhibit T4 p 283.

 58   Exhibit T2 [60]-[61]; exhibit T4 p 286.

 59   Exhibit T2 [62]; exhibit T4 pp 287-9.

 60   Ibid [63]-[66].

 61   Ibid [68]; exhibit T4 p 370.

 62   Exhibit T4 pp 326-9.

 63   Exhibit T2 [71]-[72].

 64   Ibid [73]-[76].

 65   Exhibit T4 p 340.

 66   Ibid p 390; PN618-PN661.

 67   Chrys Chrysostomou v Autohaus Classic BMW t/as Trivett Classic Pty Ltd [2007] AIRC 869.

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