[2017] FWC 2182

The attached document replaces the document previously issued with the above code on 25 May 2017.

The document amends a typographical error.

Peter Willink

Associate to Deputy President Sams

25 May 2017

[2017] FWC 2182
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s 394—Unfair dismissal

Mauricio Nakasone
v
Salvation Army
(U2016/14418)

DEPUTY PRESIDENT SAMS

SYDNEY, 25 MAY 2017

Application for relief from unfair dismissal – dismissal for serious misconduct – allegations of aggressive and intimidating behaviour – previous warning – failure to comply with reasonable direction during investigation – code of conduct – conflicts of evidence – reconstruction of events – serious misconduct proven – valid reason for dismissal – no procedural unfairness – dismissal not harsh, unreasonable or unjust – application dismissed.

BACKGROUND

[1] Amongst many of its diverse businesses, pastoral and community services, the Salvation Army operates a conference and recreation centre in Collaroy, New South Wales (the ‘Centre’). Mr Mauricio Nakasone was employed by an external catering company as a Grounds Keeper at the Centre from 13 April 2010. His good service was recognised by the Salvation Army when he became directly employed from 11 August 2011. From 2 March 2015, Mr Nakasone became the Operations Assistant to the Director of Operations, Mr Carlos Lopes. In this role (as the name implied), Mr Nakasone assisted the Director in various tasks and duties associated with the operation and running of the Centre, for which he was paid a salary of $58,041.00 per annum. Mr Nakasone’s terms and conditions of employment were set out in a comprehensive contract of employment. While it was said in his contract that his position was not covered by an award or agreement, and his role was at Job Level 5 of the Salvation Army’s job evaluation system, it is likely the duties and responsibilities of his position could easily be identified in a Modern Award. However, for present purposes, no issue necessarily arises in that respect.

[2] On 11 November 2016, Mr Nakasone was summarily dismissed from his employment following a meeting with Mr Richard Javor, General Manager and Ms Sheridan Messenger, HR Consultant. While the allegations of ‘serious misconduct’ were not expressly set out in Mr Nakasone’s letter of termination, dated the same day, it is apparent from the letter which I set out below, that this reason was the basis for the employer’s decision to dismiss him (notwithstanding he was paid two weeks’ pay in lieu of notice). The termination of employment letter reads as follows:

[3] Mr Nakasone filed an unfair dismissal application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) on 2 December 2016, seeking compensatory relief in the form of orders from the Fair Work Commission (the ‘Commission’) under s 392 of the Act. The proposed relief was later amended to reinstatement and/or compensation. Hereinafter, I shall identify Mr Nakasone as the applicant and the Salvation Army as the respondent. The matter was subject to the Commission’s usual protocols for telephone conciliation, but no agreement could be reached. The matter was remitted to me and directions were issued for the filing and service of evidence with a hearing scheduled for 15 and 16 March 2017. (The hearing continued to finality on 30 March 2017).

[4] At the hearing, the applicant was represented by his friend, Mr G Junqueira and the respondent was represented by Mr J Stanton, Solicitor (assisted by Ms L Isho) of AFEI Legal, with permission being granted, pursuant to s 596 of the Act. Significantly, as it will later become, the applicant is of Brazilian descent, but had not requested a Portuguese interpreter and did not do so at any time during the proceeding.

THE EVIDENCE

The respondent’s standard of conduct

[5] Reliance was placed by the respondent on its Code of Conduct and the expectations of employees set out in their contracts of employment. These are found at para 7 of their contracts as follows:

[6] The following persons provided statement and oral evidence in the proceeding:

As is evident from the applicant’s termination of employment letter, the reasons for his dismissal essentially involve three incidents. Evidence also focussed on the applicant’s meetings with Management on 24 and 25 October and 3 November 2016, and the termination of employment meeting on 11 November 2016. Unsurprisingly, the evidence concentrated on these events, which I set out in summary below.

The March 2016 bullying incident

[7] The applicant was involved in an incident with a work colleague, Rinchen Dhundup, on 31 March 2016. The applicant did not work directly with Mr Dhundup, but when he became aware that Mr Dhundup was involved in a relationship with a woman whose partner was a mutual friend of both of them, they did not speak to, or acknowledge each other. The applicant said he had never previously had an altercation with Mr Dhundup. However, on 31 March 2016, in the course of his cleaning duties, Mr Dhundup had opened a door to a change room, in which the applicant was changing. When he asked him to close the door, Mr Dhundup replied ‘No, it’s OK, it will just take a minute.’ The applicant conceded he was annoyed and he had pushed the door closed while Mr Dhundup was outside.

[8] As a result of a complaint made by Mr Dhundup, a meeting was held with Mr Javor, Ms Messenger, Mr Dhundup and the applicant. They both explained their version of events, although the applicant disputed Mr Dhundup’s claim that he had been in the change room first. The applicant said that during the meeting, Mr Dhundup stated that he wanted to be friends. They agreed and shook hands. From that point, the applicant spoke to Mr Dhundup every day, having been told that his previous ‘no contact’ could be construed as bullying. While Mr Dhundup did not give his version of events in the proceeding, the applicant signed a warning letter acknowledging the meeting, his own admissions and his agreement to apologise to Mr Dhundup. The letter was expressed as follows:

[9] In his statement, the applicant did not accept that the above warning was justified. He explained that he signed the warning letter and acknowledgement because he simply wanted to put the event behind him and move on.

[10] In cross examination, the applicant denied that he had been untruthful in his application when he said:

[11] The applicant claimed he was a good person and this was just one episode in six years of employment; it was not bullying behaviour. He said that he had admitted to the allegations because he did not have any other option and just wanted to finish the matter and keep working. He explained that his solicitor had prepared his unfair dismissal application and she had not put this matter in issue in the Form F2. Nevertheless, the applicant agreed that what was alleged in the warning letter was how he had behaved towards Mr Dhundup.

[12] In her cross examination, Ms Messenger acknowledged that the applicant had not admitted to bullying Mr Dhundup, but he had admitted to conduct which the respondent considered to be bullying. Ms Messenger said it was not correct that the applicant did not have any contact with Mr Dhundup, notwithstanding they worked in different departments. She explained that the full staff complement totalled around 120, including casuals, with around 70-80 employees on site each day, interacting with each other.

[13] During her investigation of this complaint, Ms Messenger said that Mr Dhundup had claimed the applicant had bullied him and for over three years, had ignored him, refused to speak to him or even look at him. The applicant had explained that in his culture, if you do not like someone, you ignore them. Ms Messenger said that the reason why there was a two-week delay between a meeting with the applicant and the warning letter, was because mediation was being organised and mediation actually took place on 18 May 2016.

[14] Ms Messenger insisted the applicant was given an opportunity to respond to the allegations. He did so by confirming his conduct towards Mr Dhundup. She said that a considerable amount of time was spent explaining to the applicant, in Portuguese, the respondent’s Code of Conduct and what was expected when persons were dealing with each other in the workplace. Mr Junqueira put that the applicant had been ignoring Mr Dhundup because of an extramarital affair Mr Dhundup was involved in, with persons the applicant knew.

[15] Ms Messenger also answered questions about another complaint of bullying by the applicant in August 2016, which was investigated. As it was not substantiated, I do not detail it here.

Incident involving Mr Lopes and Ms Gall on 21 October 2016 (the ‘Chapel incident’)

[16] It was the applicant’s evidence that despite Mr Lopes being his manager, they were friends and had enjoyed a good social relationship outside of work – surfing together and attending barbeques at each other’s houses. The applicant had also helped him with maintenance and work on his house.

[17] On 21 October 2016, the applicant and a work colleague, Vanessa Gall had agreed to set up a room for a conference that afternoon. Later that day, when he observed Mr Lopes and Ms Gall walking towards the Chapel area to do the set up, he approached them and asked if they needed help. When Mr Lopes said no, the applicant was surprised and queried Ms Gall as to their earlier understanding he would help with the set up. The applicant acknowledged that he was ‘slightly frustrated’, because Mr Lopes had sometimes assisted with tasks and then complained to Management about having to do so. He said he was concerned Mr Lopes might complain again or suggest he and Ms Gall were not doing their jobs.

[18] It was the applicant’s evidence that the three of them had a brief conversation in which he asked why Mr Lopes was assisting. The applicant claimed the conversation was not an argument and none of them were angry. They continued the work together on the set up. At para 30 of the applicant’s statement, he said:

[19] In later oral evidence, the applicant explained that he had not been involved in their conversation, but had recorded what Mr Lopes had told him about his conversation with Ms Gall later that night. When the applicant called her later, she told him it was Mr Lopes who had called her. The applicant believed that his lawyer misunderstood what he had told her and his statement was wrong in this respect.

[20] The applicant conceded he approached Ms Gall later, as they were good friends. The applicant explained that when he had said he had later spoken to Ms Gall, he may have run into her at the supermarket, because they lived in the same street. He did not want her to think that he was annoyed with her, and he wanted to confirm she was OK, after what had happened.

[21] On 24 October 2016, the applicant attended a meeting with Mr Javor in which he was advised a complaint had been made by Mr Lopes about the incident. The applicant was upset and Mr Javor suggested he take a few days off, and he did so. On returning to work on 31 October 2016, the applicant asked Mr Lopes about a paddleboard he had lent him a year earlier. The next day, Mr Lopes brought the paddleboard to work and left it outside. As Mr Lopes knew he travelled to work by motorcycle and it would therefore be difficult to transport a paddleboard home, he questioned why Mr Lopes had not returned it to his house.

[22] In cross examination, the applicant said that what he put in his statement about the Chapel incident was everything he had to say about the incident. However, in further questions, the applicant claimed that after Mr Lopes said they did not need help with the set up, he walked away, but was called back. The applicant agreed that his version of the conversation represented him challenging Mr Lopes, his manager. He believed Mr Lopes had complained on other occasions about doing the work of others. However, he could not identify dates or details. The applicant agreed he had no other basis to assume Mr Lopes might complain to senior Management, and had not said so at the time.

[23] The applicant denied confronting or challenging Mr Lopes. He believed he was entitled to disagree with his boss. He had just queried him and Ms Gall, and it was not true that he had bullied or confronted Ms Gall. The applicant denied Ms Gall had been crying as a result of him challenging Mr Lopes. He had contacted her later because Mr Lopes had told him she had been crying over the incident. It was the applicant’s position that he had done nothing on 21 October 2016 justifying an apology to Ms Gall, notwithstanding he subsequently approached her, without being asked to, to explain he had not meant anything by it (the incident).

[24] Mr Lopes’ evidence was that the applicant’s version of events during the Chapel incident was not accurate. He said that because Ms Gall was new in her position, he had asked her if everything was ready for the weekend. She said they still needed to set up a microphone in the Chapel, but as the applicant had not arrived after earlier saying he would help her, he agreed to finish it with her. When they were walking to the Chapel, the applicant came over and queried Ms Gall as to why he (Mr Lopes) was there when he had agreed he would help her. She apologised and said she just wanted everything ready and she had not known where he (the applicant) was.

[25] Mr Lopes said the applicant said twice: ‘If you can’t do your job, Carlos needs to hire another person to do your job.’ He told him ‘Stop it, enough, this is not necessary.’ He had offered to help and if the applicant wanted to help he could, otherwise ‘please stop’. Mr Lopes claimed the applicant’s tone and body language were aggressive and Ms Gall appeared shocked and embarrassed.

[26] Mr Lopes said he had a phone conversation with Ms Gall later that day after work. She appeared to be crying and had said:

[27] Mr Lopes had told her he needed to report the applicant to his senior manager, otherwise he himself would get into trouble for not doing so. Ms Gall asked him not to report the applicant to Human Resources, but Mr Lopes said ‘Sorry, Vanessa, but this time I have to do it.’ He reported the incident to Mr Javor and Ms Messenger by email on 25 October 2016.

[28] Mr Lopes acknowledged that he had sometimes reported to senior staff about not having enough time to do basic jobs, which were the applicant’s responsibility. But the applicant had never been counselled or warned about it.

[29] In responding to the applicant’s evidence, Mr Lopes said that while he did not argue with him, he was intimidating. Mr Lopes claimed he had not been angry. He had spoken firmly and politely in telling him to stop. He had never accused him of bullying staff.

[30] Mr Lopes waited until Monday 24 October 2016 to discuss the matter with Mr Javor. They both spoke to the applicant and told him it was serious, because it was not the first time he had behaved like this. The applicant’s response was to allege that he was being ‘picked on’ and they were making a big deal of him just giving advice to a friend. He and Mr Javor later met Ms Gall. She told them she did not want the same thing happening again, but did not want ‘anything bad’ to happen to the applicant. After these meetings, Mr Lopes prepared an email to Ms Messenger at Mr Javor’s request. He delayed sending it until the next day, so as to calm down overnight.

[31] It was Mr Lopes’ further evidence that later in the day on 24 October 2016, he and the applicant crossed paths. The applicant questioned why he had reported him. Mr Lopes raised other allegations the applicant had made without proof, and the applicant replied, ‘You are trying to set something up to get rid of me.’

[32] The next day, 25 October 2016, Mr Lopes and Mr Javor met the applicant again to see how he was going. The applicant said he was feeling stressed and threatened by Mr Lopes, after their discussion the day before. Mr Lopes claimed he had only warned him not to make allegations without proof. This was not threatening. The applicant had a few days off at Mr Javor’s suggestion. Mr Lopes said he spoke to Ms Messenger after sending his email, to ask that the applicant not contact him without a witness, as he felt unsafe. This was agreed to.

[33] In cross examination, Mr Lopes agreed that prior to the Chapel incident, he had not had any major problems with the applicant. However, on that day the applicant had acted aggressively towards Ms Gall and himself. It was not only on that date but at later dates (three times in all). Mr Lopes acknowledged he had worked closely with the applicant up until 2013, when he became his manager.

[34] Mr Lopes said he had assisted Ms Gall that day because he wanted to make sure everything was ready. He had not believed the applicant would not have carried out his full duties. Nevertheless, Mr Lopes had questioned the applicant’s performance with him on a few earlier occasions. He accepted this was not common, and he could not recall any specific details. Mr Lopes said it was ‘absolutely inappropriate’ for the applicant to question Ms Gall’s performance. Mr Lopes said although the applicant had been 20-30 metres away from himself and Ms Gall, he had recorded everything that had been said in his statement.

[35] Mr Lopes agreed he called Ms Gall later that night, not to encourage her to make a complaint about the applicant, but to check how she was going. While Mr Lopes agreed Ms Gall did not want to put a formal complaint against the applicant, it was not because the applicant’s conduct had not been directed towards her. Ms Gall had told him the applicant had no right to talk to her in the way he did. She had felt humiliated and said she would not accept this kind of behaviour from the applicant anymore. However, she did not want to report him to Human Resources. Nevertheless, Mr Lopes did escalate the matter to Mr Javor. Mr Lopes did not know why Mr Javor or Ms Gall had not been called as witnesses in the case.

[36] Mr Lopes said he believed Ms Gall was crying during their phone conversation because she told him she was home crying. Of course, he could not see if she was actually crying. She had also told him it was not the first time the applicant had treated her badly. Mr Lopes denied he sent an email to Ms Messenger on Ms Gall’s behalf. He had put a complaint about the incident he had been involved in on 21 October 2016. Mr Lopes claimed he had received many complaints from other staff (named by him) about incidents of the applicant’s aggressive behaviour. He agreed the respondent had a comprehensive Code of Conduct, and one particular matter concerning Mr Dhundup had been dealt with by a formal warning. Mr Lopes acknowledged that other complaints had not been reported, as he had dealt with them as the manager, by talking to the people concerned. He conceded that no other person had asked him to take (disciplinary) action against the applicant.

[37] Mr Lopes was asked about an earlier separate incident in which the applicant had been slapped across the face by another staff member. He could not recall checking on him later, although he did talk to him, as they were friends. He could not recall if a formal complaint had been lodged about the matter.

[38] In further cross examination, Mr Lopes agreed he had not felt physically intimidated by the applicant during the Chapel incident. However, he was acting in an intimidating manner, albeit some 30 metres away. He accepted he was not concerned for his own or Ms Gall’s physical safety. Mr Lopes believed it was entirely appropriate and not disproportionate for him to seek legal support in his complaint to Ms Messenger.

Ms Sheridan Messenger

[39] Ms Messenger commenced employment with the respondent on 7 January 2013 in the role of HR Assistant and Advisor. She has held her current role of HR Consultant since 18 June 2014. Ms Messenger was present during a meeting with the applicant on 4 May 2014 after which he was issued a written warning. She had also conducted an investigation of Mr Lopes’ complaint and participated in the meetings with the applicant which led to his dismissal.

[40] On the morning of 25 October 2016, Mr Lopes rang her to say he wished to make a complaint against the applicant arising from the Chapel incident. She told him to put it in writing. When she received it, she started formulating clarifying questions to ask Mr Lopes. The next day, Ms Messenger spoke to Mr Lopes to clarify details, times and witnesses.

[41] Ms Messenger called Ms Gall and informed her that a complaint had been made about the applicant, and as she had been directly involved, she needed her version of events. Ms Messenger said that Ms Gall’s voice was shaky and emotional. She explained what had happened as follows:

[42] On 1 November 2016, Ms Messenger received another call from Mr Lopes. He sounded upset and frustrated after the applicant had confronted him in his office. Mr Lopes later emailed her with the details. Ms Messenger rang the applicant and asked him to meet with her at 1:00 pm the next day at Redfern. She advised him ‘it would be best not to speak to Carlos again without Richard or [herself] present.’

[43] The next day, the applicant phoned her from the Redfern office around 11:00 am. He asked her to meet earlier than the scheduled 1:00 pm. Ms Messenger had other commitments until 1:00 pm. At 12:00 pm, the applicant rang her again and said he could not meet her because he had an urgent visa matter to deal with. The meeting was rescheduled to the next day. There was some dispute as to whether the applicant had said he had to deal with a banking issue or an urgent visa matter. Resolving this conflict is not necessarily required for the purposes of this decision.

[44] In cross examination, Ms Messenger confirmed that she had spoken to Ms Gall a number of times. Ms Gall was quite upset when first contacted after the incident. Ms Messenger said she wanted to meet the applicant off site as he sounded uncomfortable on the phone and it would assist to talk to him away from the workplace. The meeting was held some two weeks after the Chapel incident. The applicant admitted saying to Ms Gall during the Chapel incident, ‘if you don’t do this, Carlos will have to hire somebody else.’ Ms Messenger believed he had agreed to apologise to Ms Gall.

[45] Ms Messenger said that although the direction to the applicant not to speak to Mr Lopes was not in writing, it was clear that he was to report directly to Mr Javor and direct any incidents/issues to him. She had emailed the applicant the EAP contact details and said he could contact her if he had any questions.

Meeting with Management on 3 November 2016

[46] Ms Messenger and Mr Kensey, Industrial Relations Adviser, met the applicant on 3 November 2016. She asked him for his version of events of the Chapel incident and the incident in Mr Lopes’ office on 1 November 2016. Ms Messenger attached her contemporaneous notes of the meeting to her statement. The applicant prepared his own notes, because he did not believe her record or Mr Kensey’s typed up notes of these discussions were accurate. Ms Messenger recorded the following discussion:

[47] During the meeting, the applicant had agreed he had told Ms Gall he was sorry if she thought he had been angry (on 21 October 2016). However, he did not apologise to her, as he had done nothing wrong. The applicant further agreed that at this meeting:

Ms Messenger completed her investigation after speaking to all the parties involved. After discussing the matter with Mr Javor, it was agreed to issue the applicant with a second and final warning.

[48] The applicant said that although reporting to Mr Javor, they all worked in a small office and were required to interact with each other. He stressed that he did not speak to Mr Lopes or Ms Gall about the investigation.

[49] In cross examination, the applicant was referred to his own notes of the meeting on 3 November 2016. He believed the issue of confronting Mr Lopes over the paddleboard was ‘a triviality’ – a personal matter – that should never have been raised. It had nothing to do with the Chapel incident.

[50] The applicant said Mr Lopes told him before his meeting with Mr Javor on 24 October 2016, that he had intended to lodge a complaint about him on the same day as the Chapel incident. (This was not recorded in his statement, because he said he could not prove it). He was surprised at the complaint when he was told about it, because he was accused of aggressive behaviour. Moreover, he knew Ms Gall had tried to convince Mr Lopes not to make a complaint.

[51] The applicant acknowledged that Ms Messenger had accommodated his request to defer the meeting originally scheduled for 2 November 2016 to the next day. The applicant said that he was anxious about his wife’s visa and everything else that had been happening. He conceded his wife did not have an appointment at the Immigration Office. She had decided to go there on 2 November 2016 and he decided to go with her because his visa was connected to hers. It was a personal issue. However, while the applicant conceded he had told Ms Messenger he had a banking issue to attend to, he had not intended to mislead her.

[52] The applicant was shown a visa status document, which appeared to disclose that he could not work at the present time. The applicant said he was unaware of this restriction on his visa and he would need to talk to his immigration lawyer. He agreed that it would be relevant to his claim of reinstatement for the Commission be aware of his visa status. He denied this was the issue he was anxious about on 2 November 2016.

[53] In further cross examination, the applicant had understood when he was told to report to Mr Javor, that he was not to talk to Mr Lopes about the investigation. He later conceded he was not to report to Mr Lopes or to speak to him.

[54] It was Mr Lopes’ evidence that after the applicant told him he wanted his paddleboard back, he brought it to work the next day. He was surprised the applicant had raised this issue, when the paddleboard had been sitting in his garage for two years, without the applicant ever mentioning it. Mr Lopes had actually asked to return it in August 2016, to make more room in his garage, but this did not happen.

[55] On 1 November 2016, the applicant approached Mr Lopes and told him to return his paddleboard. Mr Lopes told him he had done so, but the applicant wanted it returned to his home. Mr Lopes refused. Another issue arose about purchasing the AutoCAD software program and Mr Lopes told him to email a request. The applicant left and came back shortly after. The following conversation took place:

[56] Mr Lopes claimed that during the above conversation the applicant was aggressive and angry. Mr Lopes had felt cornered as the applicant was goading him for a reaction. Mr Lopes called Ms Messenger and said something needed to be done, or she would have a problem with him (Mr Lopes). Ms Messenger agreed to meet the applicant the following week. Mr Lopes said he had not been seeking the applicant’s dismissal. He was told the applicant was directed not to speak to him. Mr Lopes claimed that during the period between 1 and 9 November 2016, the applicant would come into the office they shared and say things to Ms Gall which were intended to provoke him.

[57] In cross examination, Mr Lopes was asked about his email to Ms Messenger on 1 November 2016, setting out a series of comments made to him by the applicant when they met in his office that day; see: para [55] above. He agreed there was no one present who could corroborate his version of the conversation.

Relevant events from 9 to 11 November 2016

[58] The applicant said that around 9 November 2016, he saw his paddleboard with a hole in it laying in a garden at work. He photographed the damaged paddleboard on his phone. That day, he was directed to attend a meeting the next day. That night, he was anxious and slept very poorly. The next morning he attended his GP who certified him unfit for work that day (10 November). At around 8.30am the applicant attended the workplace. He found Mr Lopes to give him his doctor’s certificate (as he always had done). He showed Mr Lopes the photo of his damaged paddleboard and said:

Mr Lopes did not answer and walked away.

[59] On 11 November the applicant attended a meeting with Mr Javor and Ms Messenger. The applicant claimed that he understood the meeting was to discuss the events of the Chapel incident and Mr Lopes’ complaint. He brought various documents with him, including references from clients of the Salvation Army. While he was prepared to discuss and expand on his version of events, the meeting lasted approximately five minutes with Mr Javor doing most of the talking. The applicant could not recall if the Chapel incident was discussed. Mr Javor only asked about his approach to Mr Lopes the day before. He did not ask for his version of events or give him any opportunity to respond.

[60] It was the applicant’s evidence that when he became aware Mr Javor intended to dismiss him, he was shocked and said:

[61] Mr Javor confirmed his dismissal and directed him to leave immediately - which he did. He did not even have an opportunity to say goodbye to his colleagues. He felt humiliated and very distressed. The applicant insisted that he did not bully Mr Lopes, or anyone else, and was not given an opportunity to explain his version of events. He wished to return to his employment at the Salvation Army.

[62] In cross examination, the applicant said he had been certified unfit for work on 10 November 2016 due to the stressful nature of the investigation process initiated by the respondent’s HR Department.

[63] Although the applicant agreed that he knew his paddleboard had been returned to the workplace on 1 November, he did not go looking for it until 9 November. He claimed he did not do so because he had told Mr Lopes he expected it to be returned to his home. He denied using this excuse as a basis for challenging Mr Lopes. He just wanted his property back, as Mr Lopes was no longer his friend. The applicant conceded that he did not ask Mr Lopes where his paddleboard could be found and he did not look for it. He denied Mr Lopes’ version of their conversation on 1 November because he did not use the language Mr Lopes described in his statement. He specifically denied saying:

[64] On 9 November 2016, the applicant told Mr Lopes he was experiencing heart palpitations. He denied Mr Lopes made an incident report and advised him to go home and see his doctor. He had told Mr Lopes he was going to see a doctor, not going home. Despite putting in his statement that he was asked to attend a further meeting on 10 November 2016, where he would be provided with a formal warning, he now claimed he did not know about a formal warning. He believed the meeting on 10 November was to discuss the investigation.

[65] The applicant explained that he was very concerned about his heart palpitations, as it was a very stressful time. He left work around 2pm, but could not see a doctor until the next day at 7am. The applicant agreed he had never been required to work when he was sick and he was not required to work on the 10 November 2016; yet he turned up that day. The applicant agreed he could have phoned Mr Javor that day, but he felt he was ‘good to work’, despite the doctor declaring him unfit that day. He suggested that he was a hard worker and knew his body better than any doctor. He agreed he was not qualified to dispute the doctor’s advice. He was taken to his F2 where he said:

[66] The applicant accepted that despite being directed not to report to Mr Lopes, he sought him out on 10 November and handed him the Doctor’s Certificate. He denied Mr Lopes’ evidence that in the past when he was sick, he either phoned or texted that he would not be coming in. The applicant challenged Mr Lopes’ version of what happened and what was said that morning. In a curious answer, he said Mr Lopes’ words were ‘irrelevant for me. It’s just words.’

[67] The applicant denied his intention to turn up that day was in order for him to challenge Mr Lopes again about the paddleboard. He believed Ms Gall could support his version of events. Ms Gall had been there, yet she had provided no evidence in this case. He agreed he could have asked her for a statement, but she then said she could not support his account. The applicant denied that on 10 November, he had acted in an aggressive and intimidating manner, consistent with the warning he received in May 2016 for similar behaviour.

[68] In further cross examination, the applicant described the documents he took to the meeting on 11 November 2016. He conceded these were tax invoices for monies he had saved the Salvation Army, positive feedback from guests and customers and certificates of appreciation. These were not documents related to the Chapel incident. He had taken the same documents to the earlier meeting on 3 November 2016. He had brought these documents because he understood it was an important meeting. However, he denied knowing this meeting might likely result in his dismissal, or that he had brought these documents to plead for something other than dismissal. He claimed the documents were to demonstrate he was a ‘good person, who was not aggressive or a bully.’ He acknowledged that he thought something ‘bad was going to happen to (me).’

[69] Mr Stanton took the applicant to his contract of employment which included the following: ‘Every employee is… required to observe and practice standards of personal and professional conduct that will be consistent with the public reputation of our organisation and to this extent, standards of behaviour ordinarily accepted in the general community may not be acceptable standards applicable to your employment with the Salvation Army.’ The applicant believed he had met this standard.

[70] In further cross examination, the applicant was asked about the warning letter in which he acknowledged that he would alter his behaviour towards Mr Dhundup. He denied altering his behaviour. He insisted he did not bully Mr Dhundup. In respect to reinstatement, the applicant said he did not need to change his behaviour towards his manager, Mr Lopes, because he had done nothing wrong. It was just a misunderstanding, for which he had apologised to Ms Gall, but not to Mr Lopes.

[71] When taken to Ms Messenger’s version of the meeting of 11 November 2016 in her statement and notes of the meeting, the applicant said they were inaccurate because there was no investigation and he was given no opportunity to explain anything. Mr Javor cut him off whenever he tried to say something. He denied saying he wanted to leave quietly (without saying goodbye to colleagues).

[72] The applicant understood his version of the conversation was substantially different to Ms Messenger. His evidence was:

[73] Mr Lopes said that on 9 November 2016, at around 10:30am, the applicant told him he was not feeling well and felt like he was having heart palpitations. He said he was going to the Doctor and Mr Lopes replied ‘no worries, just go.’ Mr Lopes filled in an incident report.

[74] It was Mr Lopes’ evidence that on 10 November he found the applicant’s medical certificate on his desk. In the past, the applicant would either phone or text if he was not coming in. Later that morning, when he was in the auditorium with Ms Gall, the applicant walked in. Mr Lopes had no idea he was on site. The applicant, ‘in a very aggressive and intimidating’ manner said ‘my paddleboard is damaged. You have to bring it back to me and I want it fixed.’ Mr Lopes said ‘no worries. I will fix it but I’m not dropping it to your place.’ Mr Lopes claimed that although the applicant persisted, he did not want to engage with him. The following conversation ensued:

[75] The applicant added ‘you wanted to bring me to your little house’ (meaning in Portuguese, a place where you feel protected). When the applicant went to the office, Mr Javor told him he had been ‘told not to speak to Carlos.’ Mr Lopes said he was a bit upset, nervous and stressed. The applicant said he was just asking about his paddleboard. Mr Lopes reported what had happened to Ms Messenger.

[76] It was Ms Messenger’s evidence that on 9 November 2016, she requested the applicant to attend a meeting the next day at the Redfern office (away from the worksite) to discuss the outcome of the investigation. Ms Messenger said the next day Mr Javor rang her to say the applicant was at the Collaroy Centre, and not coming to Redfern because he had a medical certificate with no end date. She rang the applicant to seek clarification of when he would be fit for duty and returning to work. She received an amended medical certificate from him later that day.

[77] It was Ms Messenger’s evidence that she and Mr Kensey phoned Ms Gall to ask her what happened on 10 November 2016. She had said:

[78] The applicant met with Ms Messenger and Mr Javor the next day. The applicant was happy to proceed without a support person. After Mr Javor summarised the investigation outcome and reminded the applicant about the previous warning in May, Mr Javor raised the events of the day before and said:

After the applicant was invited to respond, he said:

[79] Ms Messenger said she then confirmed the applicant’s dismissal, with immediate effect and asked him if he wanted to say goodbye. He answered ‘no I want to leave quietly.’ Mr Javor offered to follow him out, so no one would see him. Ms Messenger offered the EAP contact and said she would confirm the dismissal decision in a follow up email. Ms Messenger corroborated this meeting’s discussion with contemporaneous notes she attached to her statement. Ms Messenger said it was her practice to always phone a person to confirm their availability for a meeting and then send a confirmation email. The applicant agreed to attend the meeting on 10 November, without a support person (it became 11 November) to discuss the outcome of the investigation into the Chapel incident and the incident on 1 November. Ms Messenger believed the applicant had ample opportunity to respond to the investigation and its outcome. The respondent’s intention had been to issue a second and final warning, but the applicant confronted Mr Lopes the day before (10 November) in a further breach of the direction not to contact or speak to Mr Lopes.

[80] It was Ms Messenger’s evidence that she had not experienced anyone bringing a portfolio of supporting documents of the kind the applicant brought to the meeting. She said the personal issue over the paddleboard was not the respondent’s concern - rather, it was the applicant’s breach of the direction not to speak to Mr Lopes. The direction was not restricted to not speaking to Mr Lopes about the investigation, but was that he not to speak to him at all during the investigation. Ms Messenger conceded that although the applicant might not have expected to being questioned about the incident the day before, it was a combination of all the events leading to the meeting and the applicant’s acceptance that he had spoken to Mr Lopes the day before. It was clear to Ms Messenger that the applicant’s behaviour was not changing. It was impacting on other staff and he could not follow a reasonable direction. Nevertheless, there was a short investigation of the incident the day before as Ms Gall was spoken to as a witness.

[81] Ms Messenger said it was her practice to write word for word what somebody said to her in these circumstances. She did not misinterpret what Ms Gall had told her. Ms Gall was not making a complaint, but being interviewed as a person who was a witness to an incident. Ms Messenger agreed she never asked her to write down her version of events.

[82] Ms Messenger emphasised that the decision to change the disciplinary outcome from a second and final warning to dismissal, was made after she and Mr Javor considered the applicant’s confrontation with Mr Lopes the day before, in breach of a direction he not speak to, or approach Mr Lopes during the investigation. Ms Messenger believed the applicant understood the seriousness of the issues he faced. Ms Messenger denied the final meeting lasted less than five minutes. It was around fifteen minutes. Ms Messenger claimed the applicant’s response about Christian values was not a good enough or sufficient response. He did not mention anything else to defend his position.

[83] Ms Messenger believed the applicant was afforded a ‘fair go’. She was questioned as to how many dismissals she had been involved with which involved bullying or aggressive behaviour. Her answer was ‘about five’. She said it was best practice not to write up warnings until after an employee is given an opportunity to explain, because an explanation might produce a different result.

[84] In cross examination, Ms Messenger confirmed that in the last six months of the applicant’s employment, he had received one written warning and a number of verbal warnings from Mr Javor and his previous manager. She did not know how many warnings he received, as they were ‘in house’.

[85] Mr Junqueira sought to reconcile the respondent’s zero tolerance to bullying with an earlier incident involving the applicant being slapped by another employer. Ms Messenger had no knowledge of that matter.

Other Matters

[86] The applicant was cross examined on the documents he provided under a Notice to Produce issued by the Commission on 9 March 2017. They fall into two categories:

[87] The applicant agreed that the job application to the NSW Rural Fire Service (RFS) was for a volunteer position, not a paid position. He understood no income was involved, but he did not take up the position in any event, because the RFS did not need anyone. He agreed he applied for three positions on 27 and 28 February 2017: Deputy Manager, Sydney YHA, but was not accepted; Assistant Manager, VIP Dining – not interviewed; and Porter, Sheraton Hotel – unsure about his application. He claimed he had not applied for any more positions because he first wanted to ‘clear my dignity.’

[88] In respect to his bank statements, the applicant was asked about a $2,250.00 credit entry on 19 December 2016, which was paid to him for work performed for a company, Profile Systems. He denied not telling the truth in his statement (prepared by his lawyer) when he claimed he had been unemployed since his dismissal. He explained that he had no contract with that company, but did perform work for it prior to 11 November 2016. He received no other payments from Profile Systems. He was asked about a cash deposit on 21 December 2016 of $2,500.00, which he said were savings he kept at home. It was not for any work he had performed. Other credit entries related to his wife’s employment. Other cash entries of $1000, $900, $830 and $250 were also from his savings he ‘kept under his mattress’, to pay for his rent.

[89] Mr Stanton queried why the applicant readily understood every question he was asked by his friend Mr Junqueira, and did not pause to answer or ask for a question to be repeated. He said that because Mr Junqueira is also from Brazil, the sentence structures and pronunciation of words in English was easier to understand than a person speaking English, as their first language. He denied discussing his evidence with Mr Junqueira.

[90] In cross examination, Mr Lopes was asked about the complimentary comments from customers about the applicant. He acknowledged the applicant’s dealings with customers by this comment:

However, he reiterated that he had received complaints from other staff about the applicant’s aggressive behaviour, including his receipt of a warning in May 2016. At no time, had he described the applicant as an exemplary employee.

[91] In respect to reinstatement, Mr Lopes said he was depressed and uncomfortable at the thought of the applicant coming back to work, as he does not have the energy to deal with him anymore.

[92] In her evidence, Ms Messenger said she was concerned if the applicant was reinstated, as it would put him in contact with Mr Lopes and she was worried as to the effect this would have on him if the applicant’s unacceptable behaviour was repeated.

SUBMISSIONS

For the applicant

[93] In written submissions, the applicant’s former lawyer submitted in respect to s 387 of the Act, as follows:

[94] In oral submissions, Mr Junqueira said that while there may have been some disagreements between the applicant and Mr Lopes, this was a result of their over familiarity as friends outside of work. He put that this was not bullying – it was not repeated instances of aggressive behaviour over a long period. The highest it got was Mr Lopes being a bit upset. Mr Lopes had used Ms Gall to escalate the issues when Ms Gall herself did not complain and did not want Mr Lopes to complain on her behalf. Mr Junqueira said that stressful work situations can often lead to heated discussion. This is very different to bullying.

[95] In addressing the matters under s 387 of the Act, Mr Junqueira submitted that both the allegations of bullying and failure to comply with lawful directions were not substantiated. The applicant had very little chance to defend himself. The allegations were completely out of character, as the commendations from customers had demonstrated.

[96] Mr Junqueira said that the applicant complied with the verbal direction for almost a week before Mr Lopes spoke to him on 9 November. The next day Mr Lopes went to HR because the applicant spoke to him about the paddleboard when he presented his medical certificate.

[97] Mr Junqueira accepted that while Mr Messenger was diligent with her investigation, there was partiality about the way the whole matter was treated. The applicant did not have a proper opportunity to defend himself. At the final meeting, the applicant was very nervous. After being told he was to be terminated after six years service, he was obviously very defensive. Mr Junqueira added that while the applicant was offered a support person, it would not have made any difference to the respondent’s decision. Mr Junqueira speculated that the decision to dismiss the applicant had already been made before the 11 November meeting. The applicant sought reinstatement. He had earned no remuneration since his dismissal. He has had to dip into his savings, causing tremendous financial and emotional hardship.

For the respondent

[98] In a written outline of submissions, the respondent put that the applicant’s claim his dismissal was ‘harsh, unjust and unreasonable’ must be considered in the context of the following background facts:

[99] It was submitted that the reasons for the applicant’s dismissal were stated clearly and unambiguously in the letter terminating his employment and the validity of these reasons were either admitted or acknowledged by the applicant.

[100] The respondent said that contrary to the applicant’s claim of harshness, given his favourable customer comments and six years exemplary service, his employment record was not actually one of exemplary service. He admitted to inappropriate and bullying behaviour in May 2016 and received a written warning, which he acknowledged. Dismissal was not disproportionate given this warning, the risk he faced if the behaviour was repeated, his improper challenges to Mr Lopes’ authority (21 October 2016) and confronting him on other occasions in breach of a direction not to do so.

[101] The respondent claimed the applicant was provided with fair and reasonable opportunities to respond to the complaints and allegations against him. The allegations were rigorously investigated. The applicant could have had a support person present during interviews. The applicant was fully aware his unacceptable conduct had an effect on other employees and if it continued, his employment was at risk. The application should be dismissed.

[102] In summing up the respondent’s case, Mr Stanton refuted the applicant’s claim that he was not provided with a reasonable opportunity to respond to the allegations against him, by setting out Ms Messenger’s evidentiary account of the meeting of 11 November 2016. The applicant was clearly given the opportunity to respond and did so. It was not the case that the applicant had been ‘railroaded’ or was ignorant of what was alleged against him. This is borne out by the applicant bringing to the meeting favourable customer comments in an attempt to make a plea of mitigation knowing his employment was in jeopardy.

[103] Mr Stanton also rejected the applicant’s claim of Mr Lopes’ partiality. This was so he would not have prepared an email for Ms Messenger about the Chapel incident and ‘sleep on it’, so as to calm his emotions before sending it.

[104] In developing the chronology of events, Mr Stanton put that rather unusually, he was prepared to submit the applicant can be proud of his six and a half years of employment with the respondent, the favourable comments from guests and residents and his contribution to the public activities of the Salvation Army. But these facts are unrelated to the reasons for his dismissal – his unacceptable bullying behaviour. It began with a written warning for the bullying behaviour towards Mr Dhundup and continued in the Chapel incident. After the applicant was directed on 3 November not to speak to, or report to Mr Lopes, he confronted Mr Lopes on 10 November about his paddleboard.

[105] In respect to the witness evidence, Mr Stanton submitted that at all times, Mr Lopes and Ms Messenger’s conduct and contribution to events fell squarely within their respective roles. The Commission would be satisfied that both persons were impressive witnesses, whose cross examination was consistent with their written statements and documented accounts of relevant events. Neither of them were argumentative or evasive and Ms Messenger, in particular, was conscientious in ensuring the applicant was dealt with fairly and appropriately. She had rearranged two meetings at the applicant’s request and drew his attention to the respondent’s EAP.

[106] By contrast, Mr Stanton said that the applicant was evasive and uncooperative. His quick and clear responses to questions from his friend was materially at odds with his failure to answer, not understand or ask questions to be repeated, during cross examination. In addition, Mr Stanton put that the applicant was not a reliable witness of the facts. He provided no account or truncated accounts of relevant events. He did not explain why he attended the workplace when he was certified unfit. The real reason was he was looking to confront Mr Lopes. A meeting later that day with Mr Javor was not referred to at all by the applicant. The Commission would find that the applicant’s version of events is not to be believed. He was not a credible witness and he was not candid or open with what he would have the Commission believe. One particular example was apposite in this regard. The applicant said in his statement made on 10 February 2017 that he remained unemployed since his termination on 11 November 2016. However, his bank statements provided, under a Notice to Produce and in cross examination, reveal that he was paid $2,250.00 on 19 December 2016 for work performed for Profile Systems. Had it not been for the Notice to Produce, this pertinent information would have remained concealed. Other large periodic deposits were queried and the applicant’s explanation was that they were from his savings he keeps ‘under the mattress’. Mr Stanton said this explanation was ‘just fanciful’. It was also pertinent that the applicant’s attempts at mitigation (applications for a job) were on 27 and 28 February 2017, not long after his statement was prepared and two and a half months after his dismissal.

[107] While the application should be dismissed, Mr Stanton submitted that the following matters strongly tell against reinstatement of the applicant:

[108] Mr Stanton noted that when asked if he would change his behaviour toward Mr Lopes, the applicant said that as he had done nothing wrong, there was nothing to change.

[109] In support of his submissions, Mr Stanton relied on B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191. Mr Stanton submitted that the decision to dismiss an employee is never to be taken lightly. It was not in this case. It was not rushed and was only taken after all the facts were known and after giving the applicant an opportunity to respond. It was not a disproportionate response to someone who even now refuses to acknowledge any wrongdoing. Accordingly, the application should be dismissed.

[110] In reply, Mr Junqueira submitted that:

[111] As to the applicant’s credit as a witness, Mr Junqueira said he was under pressure in the witness box and was fearful and nervous. He did not want to respond carelessly or recklessly. He had a fear of entrapment by Mr Stanton, which is why he was hesitant. It was very different when a friend was asking him questions. His distress was evident when the Commission had to adjourn and the applicant was attended to by paramedics for a panic attack. The applicant was a credible witness – albeit he was hesitant and slow to answer. He answered all questions to the best of his ability. Credibility should not be assessed on a person’s comprehension of English.

[112] Mr Junqueira claimed that the applicant was dismissed after one incident, being the discussion with Mr Lopes on 10 November about his paddleboard. This was neither reasonable nor valid. Mr Lopes himself had said he had only witnessed one episode of alleged intimidating behaviour being a few phrases spoken from a distance of 30 metres away (the Chapel incident). This could not be described as bullying. In addition, the incident with Mr Dhundup was no more than a request for him to close the door to a room in which the applicant was changing. It then escalated to a claim of alienating Mr Dhundup, when Mr Dhundup did not even work with him.

[113] As to the earnings of the applicant from Profile Systems, Mr Junqueira submitted that it was for work performed before 11 November 2016 with an invoice of 45 days for payment. The amount was deposited into his account on 19 December 2016. He had not misled the Commission and maintains he had earned no income since his dismissal. Mr Stanton’s ridicule of him for using his savings from ‘under his mattress’ is not relevant. The applicant should be believed that he ‘topped up’ his account from savings when needed. Mr Junqueira said it was to the applicant’s credit that he was now looking for work, as his savings were running out. This was not an indication that he did not really want to be reinstated.

[114] Mr Junqueira rejected Mr Lopes’ comment about feeling uncomfortable if the applicant was reinstated, given they had been friends, there was no bullying and only one episode where the applicant may have not complied with the employer’s direction. There was no basis to reject reinstatement as being inappropriate.

[115] In summary, Mr Junqueira said:

[116] In a brief reply to three points in Mr Junqueira’s submissions, Mr Stanton referred to:

If any adverse inference was to be drawn (Jones v Dunkel), it should be against the applicant.

CONSIDERATION

Preliminary matters

[117] As I understand it, there are no jurisdictional objections to the applicant’s unfair dismissal application. Relevantly, I am satisfied that:

Relevant statutory provisions and principles

[118] Section 385 of the Act reads as follows:

[119] The remaining matter for the Commission to determine under s 385 of the Act, is whether the applicant’s dismissal was ‘harsh, unreasonable or unjust’ within the meaning of s 387 of the Act. That later section is expressed as follows:

[120] The well known passage from Byrne v Australian Airlines (1995) 185 CLR 410 (‘Byrne’) is relevant to the consideration of whether a dismissal is ‘harsh, unjust or unreasonable’ in the present context. Their Honours, McHugh and Gummow JJ said at para [128]:

Serious misconduct

[121] While the applicant’s termination letter did not use the expression ‘serious misconduct’, it is apparent that this was how the respondent characterised the applicant’s conduct and how it approached its defence of this application. In this respect, it is helpful to refer to the Act’s meaning of serious misconduct where, at s 12, it says:

The regulations referred to are r 1.0.7(1) & (2) of the Fair Work Regulations 2009, (the ‘Regulations’). It is expressed as follows:

[122] Lucev J summarised the meaning of serious misconduct in Wintle v RUC Cementation Mining Contractors Pty Ltd (No.3) [2013] FCCA 694. At paras [97]-[103], His Honour said:

[123] Before leaving the more general statutory provisions, I repeat the statutory instruction in s 381(2) of the Act to apply the principle of a ‘fair go all round’:

Meaning of ‘valid reason’

[124] As mentioned earlier, the applicant was summarily dismissed for misconduct; although he was in paid two weeks pay in lieu of notice. Not only does the applicant claim his dismissal was ‘harsh, unjust and unreasonable’, he vigorously denies the allegations and claims he was denied a reasonable opportunity to respond to them. With this in view, the onus rests with the respondent to prove, to the Commission’s satisfaction, and on the balance of probabilities, that serious misconduct occurred; See: Culpeper  v Intercontinental Ship Management Pty Ltd [2004] AIRC 261 and Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201.

[125] While decided in a different statutory context, the comments of Moore J in Edwards v Giudice [1999] FCA 1836 at paras [4] and [7] are apposite:

[126] In King v Freshmore, a Full Bench of the Australian Industrial Relations Commission (AIRC) said at paras [24], [26], [28] and [29]:

[127] The meaning of ‘valid reason’ in s 387(a) is drawn from the judgment of North J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’). This meaning has been applied by members of the Commission and its predecessors for many years:

[128] Even accepting that a finding of serious misconduct may have been open to the respondent, it must not be confused with the statutory language, which still requires the Commission to find that there was, or was not, a valid reason for dismissal (s 387(a)). In Royal Melbourne Institute of Technology v Geoffrey Asher [2010] FWAFB 1200, a Full Bench of Fair Work Australia (as the Commission was then styled) held at para [16]:

Issues of procedural fairness

[129] Subsections (b) - (e) of s 387 of the Act deal with matters which can be characterised as being relevant to whether a dismissed employee was afforded procedural fairness. The term ‘natural justice’ also springs to mind. It is trite to observe that, even if there was a valid reason for an employee’s dismissal, the dismissal may still be held to be unfair, if the employee was not afforded procedural fairness. This has been a long held industrial principle applied by this Commission, its predecessors, other Courts, industrial tribunals and the High Court. In the High Court case of Byrne, supra above, their Honours McHugh and Gummow JJ said at para [130]:

[130] To highlight the importance of procedural fairness issues, I cite three further authorities on the subject in an unfair dismissal case. In Crozier v Palazzo Corporation Pty Limited t/as Noble Storage and Transport (2000) 98 IR 137 (‘Crozier v Palazzo’), a Full Bench of the AIRC said at para [73]:

[131] In Wadey v YMCA Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations concerning the employee’s conduct. His Honour said:

[132] Nevertheless, procedural fairness steps should be applied in a commonsense and practical way. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1 (‘Gibson’), Wilcox CJ said at 7:

[133] In addition, it goes without saying that any issue/s of procedural unfairness may not be of such significance as to outweigh the substantive reason/s for an employee’s dismissal, particularly in cases of misconduct where the proven misconduct is of such gravity as to outweigh any other considerations such as age, length of service, employment record or contrition. I turn now to the matter at hand.

Findings on the evidence

[134] The applicant’s case was seriously compromised, and ultimately undermined, by his implausible and unlikely explanations for certain events and circumstances. These explanations did not support his defensive narrative that his caring and helpful employee history and gentle nature, was totally inconsistent with allegations of bullying or aggressive conduct. Examples of these matters include:

[135] Firstly, the applicant now says the warning letter he received in May 2016 was unjustified, notwithstanding he admitted to his bullying behaviour towards Mr Dhundup (over three years), agreed to apologise to him, undergo remedial training and change his attitude towards him. He signed the warning letter acknowledging that any further instances of unacceptable conduct might result in further disciplinary action. His explanation for signing the warning letter was that he simply wanted to put the issues behind him and move on. I do not accept this explanation, particularly given there was no evidence, that at any time during the investigation of these allegations, or until these proceedings, has the applicant ever disputed the May 2016 allegations or their characterisation of bullying behaviour. At no time, did he claim not to understand the terms of the warning letter or its significance.

[136] Secondly, the applicant claimed that he attended the workplace on 10 November 2016, despite having a medical certificate certifying him unfit for duty that day, because he wanted to hand Mr Lopes the certificate. This behaviour was inconsistent with what the applicant had always done in the past when he was sick or not coming in to work; he would either phone or text his intentions. Given that the applicant had been told not to approach Mr Lopes and the fact he knew the paddleboard was on site some eight days earlier, in my view, the real reason the applicant attended the workplace, was that he wanted to confront Mr Lopes about his paddleboard, and did so.

[137] Thirdly, the applicant further explained that he was not in breach of the employer’s direction to report only to Mr Javor and not to speak to Mr Lopes, because he believed the direction only related to not discussing the investigation of Mr Lopes’ complaint against him. He believed he was free to approach him about anything else, including a personal issue concerning the return of his damaged paddleboard. I reject this explanation. While it might be arguable that management’s direction could have been more specific, and preferably in writing, the direction was given in circumstances in which the applicant was under no illusion that Mr Lopes had made a serious complaint of bullying to HR and the applicant knew what it was about. I believe he took deliberate advantage of the possible uncertainty of the direction, in order to confront his former friend about the complaint against him, by making his own complaints against Mr Lopes.

[138] Fourthly, the applicant denied most of the words attributed to him by Mr Lopes in their conversation of 1 November 2016. These comments included:

While I accept these words may have lost a little in translation from Portuguese to English, their sentiments are clear and very unusual. In my view, it would be highly improbable that Mr Lopes would have made them up, particularly when they were so highly critical of Mr Lopes’ own character and conduct, including raising a matter which occurred six years ago. I also consider the comments are of the same flavour as the other comments he made in his own evidence; notably his admitted comments about the Salvation Army not showing Christian values or the love of Jesus, during the dismissal meeting on 11 November 2016. Accordingly, I accept Mr Lopes’ evidence as to what the applicant said to him in the meeting of 1 November 2016. The applicant attempted to disavow these comments because they did not fit the narrative of him not having an aggressive or confrontational manner.

[139] Fifthly, perhaps not realising what they might reveal, the applicant complied with a Notice to Produce which sought his bank statements since his dismissal on 11 November 2016. The applicant stated in his evidence that he had been unemployed since his dismissal and had received no remuneration. A deposit of $2250 was paid by Profile Systems into the applicant’s bank account on 19 December 2016. When cross examined about this entry, the applicant appeared very nervous and unsteady. He claimed he had not been untruthful when he said he had been unemployed. He had received this payment for work after his dismissal. I might have been prepared to give the applicant the benefit of the doubt and accept he just forgot about the payment. However, at the time his statement was prepared and signed, he had obtained legal advice. It may be safely assumed that his legal adviser stressed the importance of giving truthful evidence and correct information, particularly when his primary pleading of unfairness was because it was ‘harsh’ considering its economic impact on him. But that was not the end of the strange explanations the applicant gave for other amounts of $1,000, $700, $830, on various dates, which appeared as cash credits in his account (it was accepted the applicant’s wife’s income were separate credits and are not a relevant factor in this context). It was the applicant’s evidence that these other cash amounts were periodically deposited into his account from his personal savings, he kept in cash ‘under his mattress’. Mr Stanton found this explanation to be incredulous and unbelievable. I agree. It is also curious that the applicant’s only records of applying for three jobs online, were on 27 and 28 February 2017 - over three months since his dismissal.

[140] Sixthly, given the preoccupation of the applicant with the return of his paddleboard, it is rather curious that he took nine days to raise the matter with Mr Lopes (despite having been directed not to speak to him). The applicant was aware his paddleboard had been returned to the workplace on 1 November 2016. There was no evidence he went looking for it between that day and when he confronted Mr Lopes about the damage to it on 10 November, while having a medical certificate declaring him unfit for work that day. In my opinion, this was no coincidence. The applicant chose the apparently neutral course of claiming he was just handing his medical certificate to Mr Lopes. However, in his own F2, he said ‘I am unfit to work due to the stressful nature of the investigative process.’ This is contrary to his later evidence that he was ‘good to work’ and knew his body better than any doctor. Of course, Mr Lopes said he found the medical certificate on his desk and shortly thereafter the applicant approached him in the auditorium to argue about the paddleboard. I accept Mr Lopes’ version of events. In my view, the unusual means of delivering his medical certificate personally, was a pretext for him to attend the workplace and confront Mr Lopes with a view of having some ammunition to use in his disciplinary meeting with Management the next day. It backfired on him because Mr Lopes did not retaliate to the provocation and walked away.

[141] Seventhly, it was the applicant’s evidence that he had no idea of the likelihood he was to be dismissed as a result of the meeting on 11 November 2016. I find this claim to be improbable for the following reasons:

[142] Eighthly, in cross examination, the applicant was forced to accept that there were factual errors in his statement for which he blamed his former solicitor. While the errors were not determinative to the outcome in this case, it does demonstrate the applicant’s propensity to blame everyone else for his own shortcomings. At the very least, it demonstrates the applicant’s carelessness with the truth.

[143] There are other aspects of the applicant’s evidence which I find troubling. Mr Stanton submitted the applicant was not a credible witness, in part based on the applicant’s oral testimony when he compared how many questions and answers he was able to ask, and have answered by the applicant, compared with Mr Junqueira’s questions in re-examination. He cited how, during a 24 minute period, Mr Junqueira was able to ask 23 questions. Mr Stanton submitted he was able to answer:

While Mr Stanton conceded that English is not the applicant’s first language and that he was in unusual surroundings, he went on to submit that:

[144] As I understand the applicant’s defence, it was that because he and Mr Junqueira were from the same locale in Portugal, his inflexions and intonation made it easier for him to understand Mr Junqueira’s questions in English, than if he was asked the same question by an English speaker. I find this explanation difficult to accept. In my view, the applicant’s apparent lack of difficulty in answering Mr Stanton’s questions, was inversely proportional to whether the question was for, or against his interests. In other words, he was quick to answer questions he thought were supportive of his case (as Mr Junqueira’s re-examination obviously was), but hesitated or claimed he did not understand a question which was not helpful to his case.

[145] Without realising it, Mr Junqueira raised a Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) inference in that the respondent had not called evidence from Mr Javor or more importantly, Ms Gall who was present during the Chapel incident. Mr Stanton strongly resisted a Jones v Dunkel inference and put that the evidence was adduced from the two relevant witnesses (the applicant and Mr Lopes). The Commission could make findings of witness credit to resolve any evidentiary conflict. Moreover, Ms Messenger had interviewed Ms Gall and otherwise consulted with Mr Javor about relevant matters. Ms Messenger’s evidence was open to cross examination and not seriously challenged. She was a witness of credit. She had no ‘axe to grind’ and had no reason to make up her evidence about what Ms Gall had told her in supporting Mr Lopes’ version of events. I agree with this submission.

[146] It must be said that there is no obligation on an employer to seek evidence or call as a witness, every person who may have witnessed incidents or conversations, particularly when these persons did provide statements and/or were interviewed during any investigation. It is not open to the opposing party to criticise the forensic decisions taken to prove the employer’s case, when that case can be otherwise proven on the evidence adduced in the proceeding. Moreover, it is not for the Commission to advise, require or direct a party how to run its case, particularly when that party is legally represented.

[147] One further matter is pertinent in this regard. True it is, as Mr Junqueira put, that it would not have been difficult for the respondent to call Mr Javor or Ms Gall to give evidence, as they both work for the respondent; but so could the applicant, particularly as the applicant was legally represented at the time the respondent’s evidence was filed and he claimed Ms Gall was a friend. When Mr Junqueira asked if the applicant was still able to do so and told it was too late, he was critical of the applicant’s former legal representative for not having done so. While I understand Mr Junqueira’s logic and expectation that it would have been helpful for Ms Gall to give evidence, I do not accept that her evidence would have altered the outcome of this case, based on the evidence the Commission has before it. In addition, Mr Junqueira downplayed the Chapel incident, because Ms Gall did not report the incident and had asked Mr Lopes not to do so. Mr Junqueira concluded that it followed that Ms Gall had not considered the incident as sufficiently serious to report it. However, Mr Lopes was also a direct witness and believed Ms Gall had been humiliated and upset by the applicant’s comments. I accept she told him so later that night. Mr Lopes, as the responsible manager, had a duty of care towards Ms Gall, notwithstanding she did not want the incident reported.

[148] In summary, much of the applicant’s evidence was an attempt to reconstruct events and circumstances he had previously accepted as the factual position.

[149] For these reasons, I am not satisfied the applicant was a witness of credit. Where his evidence conflicts with the evidence of Ms Messenger and Mr Lopes, it is their evidence which I prefer. I am satisfied the serious misconduct alleged against the applicant has been proven on the balance of probabilities, according to the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336).

Findings on s 387 of the Act

Valid reason: s 387(a)

[150] The respondent gave the applicant a second chance in May 2016 based on its anticipation of it being a single, one off, but nevertheless serious example of aggressive and bullying behaviour which was admitted, and for which he received a formal warning. However, this incident was followed by the Chapel incident and further confrontations with Mr Lopes after the applicant was expressly directed not to have any contact with him. These later incidents constituted a refusal by the applicant to comply with a reasonable and lawful direction of the employer and this is how the incidents on 1 and 10 November 2016 must be characterised. There was no submission put that the direction not to speak to Mr Lopes was not a reasonable or lawful direction.

[151] Mr Junqueira sought to downplay the seriousness of all the incidents set out in detail earlier in this decision, including a challenge to the justification for the 18 May 2016 warning. I have earlier rejected that submission. Of course, each of the incidents when viewed in isolation, might not be considered of such gravity as constituting a valid reason for the applicant’s dismissal. Indeed, had it not been for the May 18 warning letter, this case may have had a different outcome. But that is not the point. The evidence in this case disclosed a pattern of unacceptable conduct and behaviour, involving more than just one person, over a period of some months and included a failure to follow a lawful and reasonable direction.

[152] That said, I offer this observation. There is often a fine line between respect/compliance and insolence/contempt for a manager and his/her directions, when a manager is a friend and to whom robust or cheeky conversation, might appear entirely normal or routine. However, I am satisfied in this case that the applicant overstepped that line and directly challenged, not only Mr Lopes’ directions, but also those of Mr Javor and Ms Messenger. The applicant displayed no contrition or remorse, or any willingness to admit to any of the allegations (even when he had previously done so). He said he would not apologise or change his behaviour, because there was nothing to apologise for, and nothing to change. I disagree. I am satisfied that the pattern of unacceptable conduct of the applicant was a valid reason for the termination of his employment for serious misconduct.

Notification of reason: s 387(b)

[153] The applicant was notified of the reasons for his dismissal during the meeting of 11 November 2016. I previously found the applicant knew the purpose of the meeting was to consider further disciplinary action. He would hardly have brought references and customer testimonials, if he was not aware of the likelihood of serious disciplinary action, including dismissal.

Opportunity to respond: s 387(c)

[154] The applicant was given an opportunity to respond to the allegations concerning incidents on 21 October and 1 November 2016 during Ms Messenger’s investigation. I am satisfied that the applicant was invited to put anything further he wished to put at the dismissal meeting. He merely responded defensively with comments about the Christian values of the respondent and said he had not bullied Mr Lopes, or anyone else. There was little to respond to in respect to the confrontation with Mr Lopes the day before, because it was unarguable that he had breached the direction not to speak to Mr Lopes. The applicant might have expected a second and final warning before the incident the day before. However, the respondent was entitled to change its decision, in light of the applicant’s ongoing pattern of unacceptable conduct, and refusal to comply with reasonable directions.

Request for a support person: s 387(d)

[155] The applicant did not dispute that he had been invited to have a support person with him in meetings with Management, but had not taken up that opportunity. Accordingly, there was no refusal by the employer to deny him that opportunity. This matter is a neutral factor in this case.

Warning of unsatisfactory performance: s 387(e)

[156] This was not a case involving the performance of the applicant. Indeed, Mr Lopes said ‘Mauricio was one of probably the best persons that I've ever seen dealing with customers in my whole life.’ However, there is no doubt that the applicant received a warning for aggressive and bullying behaviour in May 2016. This is particularly relevant in the context of the applicant’s ultimate dismissal.

[157] In my experience, there is always a temptation for a dismissed employee to conflate good work performance to explain or exculpate unacceptable conduct. Just because the applicant had good references and commendations from customers, does not mean that his aggressive behaviour and poor interactions with fellow employees and his supervisor, can just be ignored or dismissed because he was a good performer. In short, performance is not analogous to behaviour/conduct. Put another way, an employee can be a first rate, excellent performer, but have such poor interrelationship skills or contempt for authority, which makes their ongoing employment problematic, if not ultimately, untenable. So it was here.

Impact on procedures followed due to the size of the employer’s enterprise: s 387(f)

[158] The respondent is a large charitable and religious organisation. It may be expected that the procedures it followed to investigate the allegations against the applicant and the procedures followed to effect his dismissal, were fair and appropriate. I am satisfied this occurred in this case, with one small, but not decisive caveat. That is, it would have been preferable to provide the applicant with the direction not to approach or speak to Mr Lopes, in writing. That said, I am satisfied the applicant was well aware of what he was verbally directed to do - report to Mr Javor, and not to speak or approach Mr Lopes during the investigation.

Absence of human resource management specialists: s 387(g)

[159] Ms Messenger is a human resource and industrial relations specialist. She did not work directly with the applicant. However, she conducted the investigation and participated in the May 2016 meeting and other meetings involving the applicant and Mr Javor, including the dismissal meeting. In my opinion, Ms Messenger is a diligent and conscientious HR professional. She was very aware of, and assiduous in ensuring the applicant was treated fairly. She had agreed to the applicant’s request for a day’s delay in their meeting arranged for 2 November 2016 and had advised him of the opportunity to avail himself of the EAP. Her evidence was delivered calmly and objectively. Moreover, it was apparent she had no ‘axe to grind’ and displayed a strong sense of empathy for the applicant and his circumstances.

Other matters: s 387(h)

[160] I have taken into account the applicant’s six years of service. This is a reasonable period of employment. In addition, the Commission has earlier identified a number of matters which have been taken into account in this matter, including his good work performance; see para [89] above. I am also conscious that the applicant’s work for the Salvation Army, required him to observe a higher standard of conduct and behaviour than might otherwise be expected in the general community. The applicant agreed he understood that expectation as expressed in his contract of employment. However, the conduct and behaviour of the applicant was such that I consider he failed to comply with the usual expectations in any employment relationship.

[161] In the context of reinstatement, there was some discussion about the status of the applicant’s visa and whether he was prevented from any employment under his current visa conditions. As I do not intend to find in the applicant’s favour, it is unnecessary to consider the practicality of any reinstatement order. In any event, the applicant did not seem to be troubled by his visa status. He said these matters were being dealt with by his immigration lawyer.

CONCLUSIONS

[162] For the aforementioned reasons, I am satisfied there was a valid reason for the applicant’s dismissal, being a pattern of ongoing aggressive and intimidating behaviour for which he had been warned in May 2016 and his breach of the respondent’s direction not to speak or report to Mr Lopes during the investigation of complaints against him. The applicant was afforded procedural fairness. I have had regard for all the matters to be considered under s 387 of the Act.

[163] While the applicant was summarily dismissed for serious misconduct, he was paid two weeks pay in lieu of notice. I have taken this into account. Further, the applicant had been performing work for another employer, Precision Systems. It would appear that his skills and experience are able to be more widely applied than the specific work he performed for the respondent.

[164] Given my findings in this matter and having regard to the principles earlier referred to, I determine that the interests of justice will be best served by dismissing this application. As required by s 381(2) of the Act, the notion of applying a ‘fair go all round’ only fortifies my conclusion in that regard.

[165] Finally, I am satisfied the applicant’s dismissal was not ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act. Accordingly, his application for an unfair dismissal remedy is dismissed. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

G Junqueira for Mr Nakasone.

J Stanton and L Isho, solicitors, for the Salvation Army.

Hearing details:

Sydney.

2017.

March 15, 16, 30.

Printed by authority of the Commonwealth Government Printer

<Price code G, PR591948>