DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard Hertaeg
v
Aviation Training Australasia Pty Ltd T/A Ansett Aviation Training
(U2017/2400)

Application for an unfair dismissal remedy.

[1] This decision concerns the dismissal of Richard Hertaeg from employment with Aviation Training Australasia Pty Ltd, trading as Ansett Aviation Training. Mr Hertaeg was dismissed by Ansett Aviation Training on 2 March 2017 after employment with the company and its predecessors for 22 years. Following his dismissal, Mr Hertaeg made an application for an unfair dismissal remedy on 6 March 2017.

[2] Generally, in this decision the Respondent is referred to as Ansett Aviation Training, although in the source documents referred to by me it is sometimes referred to as either AAT or ATA.

[3] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Mr Hertaeg’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[4] Ms Abbey Kendall, solicitor, was granted permission to represent Mr Hertaeg, as was Mr Angel Aleksov, of Counsel, for Ansett Aviation Training. Both were granted permission pursuant to the provisions of s.596(2)(a) of the Act, with the Commission being satisfied that a grant of permission to them would enable the matter to be dealt with more efficiently, taking into account its complexity.

[5] For the reasons set out below, I have found that Mr Hertaeg was not unfairly dismissed and accordingly his application for unfair dismissal remedy must itself be dismissed.

BACKGROUND

[6] Evidence in this matter was given by the Applicant Mr Hertaeg and on his behalf from Victor Jose a Union Organiser with the Australian Services Union Victorian Private Sector Branch (ASU), and five co-workers, Bruce Smith, Robyn Dean, John Sztama, Colin Scott and Greg D’Cruze. Only Mr Hertaeg, Mr Smith and Mr Jose were required for cross-examination.

[7] Evidence was given on behalf of Ansett Aviation Training by the company’s Chief Operating Officer, Richard Anderson; its Chief Executive Officer, David Garside; Andrew McCaull, its Simulator Operations Manager; Malcolm Birch a Consultant to the company on Human Resources and Organisational Support matters; and Sue Bottrell, a lawyer who prepared an investigation report into the circumstances that led to Mr Hertaeg’s dismissal.

[8] Mr Hertaeg’s dismissal from employment with Ansett Aviation Training arose from a series of events that took place between August 2016 and the date of his dismissal on 2 March 2017.

[9] At the time he was dismissed Mr Hertaeg was employed as a “Proficient Simulator Officer” and he earned an annual salary of $112,055 upon which a further $11,758 superannuation was paid, being a total remuneration of $123,813. By the time of his dismissal, Mr Hertaeg had worked for Ansett Aviation Training for 22 years. The company came out of the Ansett Airlines administration and is now privately owned after having been through another owner. Mr Hertaeg started as an apprentice with Ansett Aviation Training’s predecessors and progressed through training and qualifications to the position of Proficient Simulator Operator. At the time of the hearing he was 40 years old. 1

[10] The business is based in Melbourne with other facilities on the Sunshine Coast, in Taiwan, Dublin and Zurich and it has a total of more than 40 employees worldwide; 29 of whom are in Melbourne. 2

[11] In 2016 the company was involved in enterprise bargaining and Mr Hertaeg was involved in an incident on 31 August 2016 which features in the factors leading to his dismissal.

[12] Further alleged conduct of Mr Hertaeg’s part in February 2017, also associated with the company’s enterprise bargaining, is also relied upon within the reasons for his dismissal.

[13] The letter of termination provided by Ansett Aviation Training to Mr Hertaeg dated 2 March 2017 relies on the company’s belief that Mr Hertaeg had “repeatedly engaged in aggressive, offensive and disrespectful behaviour, particularly towards Richard Anderson”, 3 the company’s Chief Operating Officer. In this regard, the company relies on Mr Hertaeg’s conduct at the meeting on 31 August 2016, after which he was warned that repetition of such behaviour may lead to his dismissal, and his conduct in February 2017 which the company views as being a repeat of inappropriate behaviour, despite the warning issued to him.

[14] During 2016 Ansett Aviation Training was covered by an enterprise agreement that had passed its nominal expiry date of 30 June 2015. Bargaining had commenced in 2014 for a new enterprise agreement, but had been put on hold for a period of time; and had then been reactivated. 4

[15] In August 2016, Mr Anderson was reasonably positive about the progress of bargaining with him feeling that “an agreement on which we could seek an employee vote was approaching given the state of negotiations between AAT and the ASU”. 5 Also in August, the company convened what it refers to as a “town hall meeting” which was scheduled for 6:45 PM on 31 August 2016. About 20 employees attended, with Mr Anderson noting that not all of those people are covered by the enterprise agreement or the company’s proposal for a replacement enterprise agreement.6

[16] In many respects the meeting did not go well with Mr Anderson believing that Mr Hertaeg’s conduct in the meeting was unacceptable.

[17] Mr Hertaeg’s perspective about the meeting is that it was connected with bargaining and that he expected to hear things in the meeting that referred to his interests and those of other employees in the process of bargaining. His witness statement records that this was the first time the company had arranged to speak with the workforce about bargaining and that he and other technicians were not happy with the company’s attitude to bargaining and some of their claims:

“16. Sometime around this meeting, I understood that ATA wanted SSO positions to be earned on merit rather than years of service. I and the other technicians were very unhappy with that position. The ASU on our behalf had asked for clarification about what merit actually meant. I also remember that at this time the ATA's wanted to change our rosters. Our 4 day rosters were earned, and then fought and won in the last EBA negotiations. Generally, I and the other technicians were very unhappy about ATA's attitude to our hard earned entitlements. I know this because I would often speak with the other technicians about bargaining. There are only about 22 employees at ATA, so were a close knit group of workmates.

31 August 2016 Meeting

17. On 31 August 2016, I attended a meeting with management and the workers. The meeting was run by Richard Anderson. It quickly became clear that the meeting was not about bargaining at all, but rather updating us about various business developments. When the meeting came to an end, I asked Mr Anderson directly about bargaining and our employment conditions. Other technicians asked questions about our entitlements.” 7

[18] The questions asked by Mr Hertaeg and the manner in which they were asked caused Mr Anderson at least some significant offence. He recalls opening the meeting and giving a general discourse about the direction of the business after which he opened the meeting for questions. He thought that the meeting had been amicable until that point. When questions came from Mr Hertaeg, that belief shifted, with Mr Hertaeg asking questions challenging Mr Anderson about renegotiation of the enterprise agreement:

“37. Upon invitation of further questions, the applicant said words to the effect of: "What about the fucking EBA and how you guys are fucking trying to steal from us?" I recall the applicant looking agitated. In response, I said words to the effect of: "Ok, we can talk about that. I've just described the context for the EBA- we have taken big hits from customers, we are trying to create business offshore where there is growth, we are trying to defend our position and what we have tabled is a very fair offer".

38. Following this comment, the applicant commenced an aggressive, vicious and expletive-laden verbal assault at me which lasted for what felt like 15 to 20 minutes. I felt this was a premeditated attack and was not part of an ongoing battle between the applicant and me.

39. During the assault, I recall the applicant saying, in some instances repeatedly, the following (or words to very similar effect):

"The only way you get a promotion around here is to suck cock"

"You guys are fucking trying to steal from us"

"This is a shit place to work"

"All you are trying to do is make yourself wealthy by stealing money from our pockets and trying to take things away from us"

"Just pay me my fucking redundancy and I'll fucking get out of here"

40. Given the applicant was sitting directly across the table from me (which I believe was deliberate) and I was negotiating the replacement enterprise agreement on behalf of AAT, I felt the applicant's comments were directed towards me personally.

41. In the face of the applicant's tirade I remained calm and did not engage in an argument. On about 3 or 4 occasions I said words to the effect of: "Richard, cut that language out, it's unacceptable", which I considered it was given the circumstances.

42. I did not swear at the applicant. I once said words to the effect of: "If you think I'm doing a shit job let me know". I did not raise my voice.

43. During the applicant's assault, Tony Frassetto, an AAT technician and lead ASU representative, physically threatened Mr McCaull. Mr Frassetto said words to the effect of: "Do you want to take this out to the carpark?"

44. I was shaken at the conclusion of the meeting as a result of the applicant's verbal attack. I was also apprehensive of being physically assaulted in light of Mr Frassetto's threat to Mr McCaull.

45. Rachele Di Maio, Strategic Business Analyst, said to me at the conclusion of the meeting of the applicant's tirade: "That was frightening". Ms Di Maio was seated very close to the applicant.

46. Malcolm Birch, workplace consultant, asked if I was ok. I responded with: "Not really, that was awful. I have never encountered anything like that before, not even close."” 8

[19] Ms Di Maio, a Strategic Business Analyst with Ansett Aviation Training wrote to Mr Garside, complaining about what had occurred in the meeting, and about the behaviour of Mr Hertaeg in particular:

“Can I start by saying that the language that was used was nothing short of vile, disgusting, gutter language that I wouldn't expect to hear in the work place let alone around a boardroom table in the company of my peers and respected managers and colleagues.

I understand that tensions are high at the moment and that some staff members were going to use this forum to express their concerns and dissatisfaction with the current status of the EBA negotiations however I did not anticipate the level of disrespect and the vitriol that was shown in the process.

I felt extremely uncomfortable when Richard Anderson was accused of stealing from our technicians not to mention the despicable language that accompanied these serious accusations.

I do not think its acceptable behaviour to use the word 'fuck' or any other swear word in the work place and it is definitely not acceptable to use this language or any other expletive towards work colleagues and least of all towards our management team whom I respect immensely.

It was a tremendously intimidating situation to the point where I didn't even feel comfortable enough to stand up and put a stop to the behaviour myself for fear of retribution.

The swearing and accusations were terrible but nothing could have made the situation entirely worse than when Richard Hertaeg used the words 'suck cock' to explain his discontent with the removal of the seniors positions from the EBA. This completely stunned me. Never in my working career have I ever been subjected to this revolting language. Never ever have I felt so disrespected and never do I want to be subjected to this behaviour again.” 9

[20] Ms Scavitto, an Executive Assistant, also lodged a complaint with Mr Garside, saying:

“I would like to lodge a formal complaint against the language that was used in last night's staff meeting by Richard H and also the aggressive and threatening language used by Tony F towards you Richard, and Andy. I understand that the EBA negotiations have heightened emotions, however in a work environment it was inappropriate and highly offensive to use that language. I was also mindful of Margaret and Grace, who being older woman, had to witness and hear that language and behaviour. It was appalling.

There was absolutely no need for the use of the term "c .. k sucker" and I was disgusted and personally offended when I heard it.

It's not fair that I and other staff members had to endure that kind of behaviour last night and I have personally decided that if I'm ever put in that position again, I will walk out.” 10

[21] For his part Mr Hertaeg had a different recollection about the 31 August 2016 meeting:

“I was nervous and angry at this meeting. Many things were said by me, other technicians and Mr Anderson. I remember that Mr Anderson kept asking me over and over "do you think I'm doing a shit job?" I told him that I thought he was.” 11

[22] Following the meeting Mr Anderson and two other employees, Ms Di Maio and Ms Scavitto made complaints to David Garside, the Chief Executive Officer, about Mr Anderson’s conduct within the meeting. 12 Those complaints led to an investigation being commissioned by Mr Garside, which was conducted by Ms Bottrell. In his witness statement, Mr Garside says that he “asked Malcolm Birch to engage Sue Bottrell of SOS Safety and Legal to conduct an investigation for AAT into the behaviour exhibited at the meeting”;13 in his reply to Mr Anderson’s complaint, Mr Garside wrote that he had “asked Malcolm, as our HR consultant, to look into” the matter,14 without referring either to Ms Bottrell or the examination to be an investigation.

[23] Mr Garside wrote to all staff about what he had asked to be done about the complaints in an email on 2 September 2016:

“Hi All

I have received a number of formal written complaints with respect to the behaviours demonstrated by some attendees at last Wednesday night One Ansett briefing session. I am dismayed by the contents of these written complaints.

As such I have engaged Sue Bottrell, AAT's Workplace Health and Safety Consultant to conduct interviews with all attendees at this session. Sue will commence the interviews from Monday lunchtime onwards.

The interviews will be conducted face to face or by telephone given some personnel may not be at work at our Tullamarine site. Participation in the interviews is voluntary and confidential. It is also your option to have someone else attend the interview with you.

I earnestly encourage everyone to take the opportunity to share what occurred from your individual perspective with Sue.

Sue's report will be submitted to me prior to my return to work on Monday week September 12. Once I am back, I will consult with my management team and our professional support team to determine next steps and courses of action.

Regards,

David Garside

Chief Executive Officer” 15

[24] Ms Bottrell’s report was provided to Mr Garside on 20 September 2016 and concluded:

“The investigation confirms the events as described by the complainants, and it is accepted that during the meeting Richard Hertaeg swore at Richard Anderson and made seriously offensive and derogatory remarks to him.

It is also accepted that there was a general feeling of anxiety, embarrassment and offense taken by those interviewed, at the behaviour and remarks made.

It is also accepted that while he did not swear, Tony Frassetto threatened Andrew McCaull with physical violence and also caused attendees to feel anxious for their own safety, if they intervened.

This conduct is in breach of company expectations of respectful conduct and its respectful conduct policy and has served to undermine the confidence and trust of the employee in both employees.

It is accepted that there is an atmosphere of conflict in the workplace as a result of the breakdown in EBA negotiations, and the conduct could be seen as an expression of that frustration.

However, it is not accepted that this provides a complete defence to the conduct on the day in question. The conduct is entirely at odds with the workplaces respectful conduct policy, which Hertaeg and Frassetto were aware of, professional and social expectations and had a serious impact on others who attended the meeting. To the extent that three people made formal complaints and demanded that meaningful action be taken by AAT to address the matter, and all those interviewed expressed significant concern at the events.

It was also reported that Richard Hertaeg has engaged in aggressive conduct in the workplace previously, however no formal complaints have been lodged or investigated.” 16

[25] The evidence given by Ms Bottrell included that while she attempted to meet with Mr Hertaeg for the purposes of her investigation, those endeavours were unsuccessful. 17

[26] Despite the company’s Board reportedly holding the view that Mr Hertaeg should have been dismissed there and then, Mr Anderson persuaded Mr Garside that the Mr Hertaeg should not be dismissed on that occasion but that instead he should be issued a first and final warning. 18 The warning which was issued to Mr Hertaeg was commenced with the subject line “Notice – First and Final Warning for aggressive, abusive and belligerent behaviours in the workplace” and the contents of the letter included the following:

“Ms Bottrell has concluded in the report that you behaved with excessive aggressiveness, repeatedly used foul language and debased management's capabilities, primarily directed at Mr Richard Anderson. This was unprovoked and continued well beyond what might have been considered 'in the heat of the moment'. Ms Bottrell found that Mr Anderson made repeated calm requests to you to cease your abusive and foul tirade, which you totally ignored. She found also that later in the session you uttered the words 'cock suck' in the presence of fellow employees and uttered the words' just fucking make me redundant'.

Ms Bottrell has also concluded that a significant number of employees who attended the briefing suffered levels of anxiety and emotional discomfort, found your behaviour offensive, felt unable to intervene or leave and experienced discomfort on attending work the next day. Your behaviours directly and substantially contributed to their adverse state of mind and emotional well being.

I find this behaviour to be totally intolerable in the Ansett Aviation Training Pty Ltd workplace.

In the circumstances I have determined that you should be clearly warned that if there is a further occasion in which you engage in offensive, aggressive or disrespectful behaviour in the AAT workplace you are likely to be dismissed.

To date you have shown no remorse nor have you made any form of apology to Mr Anderson or other work colleagues. Thus, I also invite you to reflect on the impact of your behaviour to Mr Anderson and the other employees present on 31 August 2016. 1 strongly encourage you to issue a written apology to those persons about your behaviour. Your response to this request will be taken into account in any future disciplinary matter involving you. I will follow up with you on the invitation to make an apology in due course.

This company strives to create and sustain a workplace in which all persons are treated with respect and feel safe at work. If you wish to remain within this organisation you must demonstrate at all times behaviours consistent with the Respectful Conduct in the Workplace policy, the Workplace Health & Safety System and the required standards of work and customer engagement.

In closing, this letter is a first and final warning notice to you with respect to the aggressive, abusive and belligerent behaviours directed at Mr Anderson and which adversely impacted on other AAT employees.

Be advised that further breaches of AAT's workplace behavioural standards will not be tolerated and will result in the Company taking action to terminate your employment.

If you would like to meet to discuss the facts and actions stated in this letter please request a scheduled meeting with me through my Executive Aide, Emi Scavitto (or Grace Calcagno who is covering this role in Emi's absence).” 19

[27] The warning to Mr Hertaeg was followed by a communication to all Ansett Aviation Training staff “communicating to them that the behaviour exhibited at the meeting was intolerable and caused emotional discomfort for employees”. 20 The correspondence itself to employees was pointed as well as referenced unambiguously to the events of the meeting on 31 August 2016 and that two employees were named in the report who had been “dealt with” by Mr Garside:

“I have made it very clear to the individuals that in continuing as an employee at AAT they, like all AAT employees, are required to demonstrate at all times behaviours consistent with AAT's Respectful Conduct in the Workplace policy, its Workplace Health & Safety System and our required standards of work and customer engagement.

From a personal point of view, I am highly dismayed that a significant number of you were subjected to these totally inexcusable behaviours and that many of you suffered levels of anxiety and emotional discomfort, found the behaviour offensive, felt unable to intervene or leave and experienced discomfort on attending work next day. I am saddened that the events of the briefing session negatively impacted on the state of mind and emotional wellbeing of many attendees. As needed, please contact your Manager, Richard or myself if you are still experiencing challenges moving on from these events and we will provide access to professional support.

I am further disheartened that these clear breaches of required workplace behaviours occurred at a time when Ms Sue Bottrell was conducting 'Respectful Conduct in the Workplace' sessions for all employees.

Our Board shares my dismay and a clear commitment that behaviours of this nature will never be tolerated again in the Ansett Aviation Training workplace.

Any further breaches of AAT's workplace standards & behaviours will be acted on by AAT's management with expedience and due actions carried out against anyone who is proven to have breached those standards.

In closing, we all need to make a sincere and daily commitment to creating a respectful, engaging, safe - both physically and emotionally - and friendly workplace.

Please join me in making a personal commitment to creating the workplace culture that makes it a pleasure to come to work each day and to putting an end to events witnessed on August 31^st and ensuring I never need to write another communication like this again.” 21

[28] Mr Hertaeg says that the warning to him “was a complete surprise to me” as well as it being issued to him by email.

“27. I was shocked and upset to receive the warning and contacted the ASU immediately. Ingrid Stitt, the Branch Secretary of the ASU, responded to the warning on my behalf on 14 October 2016. Over the next week Ms Stitt and Mr Garside exchanged letters and Garside provided Ms Bottrell's report. …” 22

[29] Despite Mr Hertaeg’s representations to Ansett Aviation Training through his Union, Mr Garside did not agree to remove the warning. 23 In the correspondence to Mr Garside on 14 October 2016 the ASU alleged that:

“There are number of deficiencies in the process that led to the issuing of Mr Hertaeg's first and final warning. First, Ansett failed to advise Mr Hertaeg that an investigation was being conducted in relation to his conduct. Second, Ansett has failed to provide Mr Hertaeg with an opportunity to respond to allegations of misconduct and third, details of the allegations and the documents relied upon by Ansett have not been provided to Mr Hertaeg.

At no point have the allegations outlined in your letter dated 27 September 2016 regarding the 31 August meeting been put to Mr Hertaeg prior to the issuing of the first and final warning. I understand that Ms Emi Scavitto, Ansett Executive Assistant telephoned Mr Hertaeg and asked if he would meet with Ms Sue Botrell regarding the 31 August meeting. Mr Hertaeg told Ms Scavitto that he would meet with Ms Bottrell on the condition that he is joined by an ASU representative. Despite Mr Hertaeg agreeing to speak with Ms Botrell to an Ansett representative, neither Ms Botrell nor a representative of Ansett made contact with Mr Hertaeg to arrange a meeting.

Further I understand that Mr Hertaeg was at no point, advised that Ms Botrell was charged with the task of investigating his conduct at the 31 August Meeting until he received the first and final warning. At all times, Mr Hertaeg's only understanding was that Ms Botrell was investigating what had generally occurred at the 31 August Meeting.” 24

[30] Further, the ASU conveyed that neither it nor Mr Hertaeg “recognise the first and final warning issued to Mr Hertaeg on 27 September 2016” and that they reserve their legal rights in respect of a lack of recognition of the warning. 25

[31] Shortly after these exchanges between Mr Hertaeg’s Union and Ansett Aviation Training, Mr Hertaeg had cause to write to Mr Anderson about an enterprise bargaining matter. The 2011 Agreement provided that any Technician employed after 1 July 2013 “who has completed 15 years service as a Proficient Technician shall move to the Senior Simulator Officer (SSO) classification”. 26 Mr Hertaeg learned there was a proposition from Ansett Aviation Training in the course of bargaining to remove the SSO classifications altogether. He was unhappy about that since he was due to be promoted to the SSO classification in 2017, which would not only provide greater status but a pay rise “of about $5000, without completing any training or the need to apply for the position”.27 Mr Hertaeg understood that the proposed new enterprise agreement, if agreed, would shift the arrangement to a merit-based arrangement in which one of the considerations relevant to the promotion to SSO would be whether a candidate had undertaken company-sponsored training.28

[32] In February 2017, Mr Hertaeg was unhappy to receive documents couriered to his home relating to voting for the proposed enterprise agreement. He considered that instead he should have been spoken to about the matter at work and that the materials provided were a waste of money and lacking in directions.

[33] On 3 February 2017, Mr Anderson had disclosed to employees information about the voting procedure for the enterprise agreement. Those procedures included that the relevant access period would be from 3 February to 10 February 2017 and voting would be between 13 and 15 February 2017. Voting slips would be located on Ms Scavitto’s desk “in an envelope, marked with each ASU member’s name” and a ballot box would also be located on her desk. 29 On 11 February 2017, Mr Hertaeg returned home to learn of different procedures for voting and saw little reason for what he saw to be a change in procedure:

“38. On 10 February 2017 I returned home from work at about 7.30am. Later that day I went out and while I was out I received a text message from Ms Scavitto advising that a voting slip would be couriered to me. When I arrived home there was an envelope from ATA in my letterbox. In the envelope I found a voting slip. There was no letter with instructions or reasons provided for couriering a voting slip. ...

39. I was surprised to receive a voting slip by courier. I had just come off my third 12 hour shift in a row and there was plenty of opportunity for a representative at ATA to speak to me about voting while I was at work. When I received it, I believed that all technicians must have been sent the voting slip by courier.

40. I felt annoyed by receiving a voting slip, unnecessarily, by courier because in my view it was a waste of company money. Right throughout bargaining, ATA negotiated on the basis that they were a small business that had to make savings.

41. I was also frustrated by the lack of direction I had received with the voting slip. I presumed at the time that ATA had sent the voting slip to me because I was not due to be at work when voting commenced. However, I was not provided with an envelope to return it the voting slip or any other direction as to how my vote would be counted. I received the voting slip on a Friday, so presumably if ATA expected me to return it by Australia Post, they were expecting Australia Post to deliver it in time for the vote to be counted.

42. If I was expected to drop the voting slip back into the office there really is no reason to send the voting slip by courier to my home.

43. Further, receiving the voting slip by courier was contrary to the email sent to me, on 3 February 2017, stepping out how the voting would commence. Given that no explanation was provided or method of anonymously returning the slip, delivering the voting slip by courier did not circumvent me having to attend the office on my days off.” 30

[34] Mr Hertaeg’s response to these matters and the concerns expressed within the foregoing paragraphs was to communicate with Mr Anderson and numerous others in the following terms a couple of days later:

“From: Richard Hertaeg [address]

Sent: Saturday, 11 February 2017 6:54AM

To: Richard Anderson; Victor Jose; technicians; Margaret Brosnan; Angela Hmenia

CC: Emi Scavitto; Andrew McCaull; Tony Frassetto; Dean Maclennan; [Malcolm Birch]

Subject: Using a courier to deliver voting slips?

Hello Mr Anderson,

Is there no end to the wasteful nature of this management? Fighting every step of the way to remove conditions that were in place when Champ investments 31 purchased the business, saying how the EBA is detrimental to the future of this business. Yet today, via courier we all receive an envelope in the letter box, how much did this cost? After 2.5 years of inaction and asking us to wait for various contracts to land why is this issue suddenly so important that a courier must be used to deliver the question of do we accept this downgrade to our award? The board and management have spent tens of thousands of dollars engaging lawyers, consultants and now couriers to achieve their desired result. It appears this company is prepared to hand out cash left, right and centre to any entity as long as they haven't worked here, putting their hearts, souls and most of their lives into this business. Every staff member that was here before Champ arrived worked hard to create the success this company is today from the uncertainty of Ansett's collapse, we didn't do this just so you are able to put another fancy job description on your resume, nor for the conditions in our EBA. We all take great pride working in this centre and the job we do, for some reason management believes they can take advantage of this fact treating us like fools, acting like mercenaries, destroying good will and leaving a bitter taste for all. Thank you for showing us all again how nothing is a problem unless you work here under the EBA. If this agreement goes through maybe we can get the flowers back? The place is looking a little dull and we could all do with something to boost morale!

Regards

Richard Hertaeg.” 32

[35] A few hours after receiving this communication Mr Anderson responded to the same parties who had received Mr Hertaeg’s email, plus several additional managers in blunt and lengthy terms. The preamble to the response included the following:

“Dear Mr Hertaeg,

Thank-you for your email. Firstly, it is both good to see that you are concerned about the costs of running our business (as indeed we all are) and that you have found a different forum with which to communicate your thoughts with me that allow you to control your emotion and language a little better.

Unfortunately, your email continues to show how uninformed you seem to be along with the seemingly lack of maturity to know how to handle situations which raise your temperature. I think the best path of reply is to provide a detailed response to you. For clarity, I would prefer to have dealt with your concerns and comments with you but as you chose to copy most of the Ansett staff based in Melbourne (except our CEO who I have now copied, and other members of the Management team who should be aware of the content of your email) I have simply replied all here. You will also note that I have also cc'd Ingrid Stitt who has been at the table negotiating for members for this EBA as there as some points here to which she has been engaged during this process.” 33

[36] Mr Anderson says about the incoming communication from Mr Hertaeg that he received the email when he was in Milan, and that it had been “also sent to Mr Jose, all AAT technicians and 2 cleaners, and copied into Ms Scavitto, Mr McCaull, Mr Frasetto and Mr Birch. This is despite the email being directed solely at me”. 34 Further, he considered the incoming email to warrant a detailed response for a number of reasons:

“57. In the email the applicant makes several uninformed and accusatory statements, including:

"Is there no end to the wasteful nature of this management?"

"It appears this company is prepared to hand out cash left, right and centre to any entity as long as they haven't worked here, putting their hearts, souls and most of their lives into this business."

"Every staff member that was here before Champ arrived worked hard to create the success this company is today from the uncertainty of Ansett's collapse, we didn't do this just so you are able to put another fancy job description on your resume."

"[F]or some reason management believes they can take advantage of this fact treating us like fools, acting like mercenaries, destroying good will (sic)."

58. The implication in the applicant's email is that AAT management (including me) is wasting money, selling out employees and working only for self-gain. I perceived the email to be aggressive and disrespectful.

59. I was upset that the applicant, again, publically questioned my integrity, motives and professionalism. I believe the only reason the applicant did that is to try to cause maximum offence and humiliation. Both the content of the email and copying in other people also showed a significant amount of disrespect to me and AAT management.

60. Given voting had commenced for the replacement enterprise agreement, and a significant number of people copied into the email would be covered by the replacement enterprise agreement, I felt compelled to respond to ensure the employees copied in were provided correct information and to emphasise that this business values its employees. ...

61. In his witness statement, the applicant says he believes I went out of my way in my email to personally humiliate and tear down his character and temperament to his colleagues. I deny this. As I said above, my response was a measured and factual response to the applicant's allegations. The suggestion I tried to humiliate the applicant in front of his colleagues is nonsensical and ignores the fact he copied them into his original email.” 35

[37] Mr Anderson also considered that Mr Hertaeg’s “email breached the formal warning issued to him following the August meeting; it was aggressive, offensive and disrespectful to me and management”. 36 Although Mr Anderson accepts that the February email “was not as objectively offensive and frightening as the incident during the August meeting” he felt that he had no confidence in Mr Hertaeg in relation to future employment and that it confirmed Mr Hertaeg was not remorseful or contrite for his behaviour. 37 Mr Anderson spoke with Board members who he says gave him clear authority to dismiss Mr Hertaeg.38 He also convened a meeting with Mr Hertaeg and his Union Organiser, Mr Jose and asked Mr Birch to be in attendance as well on behalf of the company. He recollects the meeting taking this course:

“74. On 28 February 2017, I attended a meeting with the applicant, Mr Jose and Mr Birch. In the meeting, I explained that:

(a) the applicant had received a first and final warning about engaging in offensive, aggressive or disrespectful conduct as a result of the incident in the August meeting;

(b) in AAT's opinion, he email constituted a breach of that warning condition;

(c) AAT was considering terminating his employment and the board had authorised dismissal for misconduct;

(d) a final decision on his ongoing employment had not been made; and

(e) he had the opportunity at that time to make any comments for AAT to consider prior to a final decision being made.

75. I deny that I asked the applicant to give me reasons why he should not be fired on the spot, or words to similar effect.

76. The applicant did not speak during the meeting. Instead, Mr Jose stated the applicant required time to respond. I permitted the applicant's response to be in writing, to be sent to me by 12noon on 2 March 2017.” 39

[38] Mr Hertaeg recollects being told by Mr Anderson about the potential for termination of his employment:

“… Mr Anderson told me that he had approval from the board to terminate my employment and asked me to provide reasons why I should not be fired, right there on the spot. Mr Jose intervened and said that this was not fair, and that I should be given an opportunity to respond. I said very little in this meeting as I was completely shocked that my employment was being terminated. I left the room and Mr Jose, Mr Anderson and Mr Birch remained in the room.” 40

[39] Mr Jose’s recollection on this subject is that not dissimilar to that of Mr Hertaeg;

“Mr Anderson opened the meeting by saying words to the effect of "Thank you for coming. I have called this meeting because I have been given approval from the board to terminate your employment." Mr Anderson then said to Mr Hertaeg "tell me why I shouldn't terminate your employment".” 41

[40] Mr Birch’s evidence in his witness statement does not directly contradict that of Mr Anderson, although he concedes that Mr Anderson did have Board authority to dismiss Mr Hertaeg:

“41. On 28 February 2017, the applicant, Mr Jose (as support person), Mr Anderson and I met at AAT's offices. Mr Anderson said words to the effect of: "I believe that you are in breach of the first and final warning due to your email on 11 February. I want to give you the opportunity to come back to us as to why we should continue to employ you." Mr Jose asked: "You're not asking him to respond today, are you?" It was agreed the applicant would have until about midday on 2 March 2017 to respond.

42. Despite Mr Anderson having authority from the board to dismiss the applicant, he did not convey to me that he had made a decision about the applicant's employment.” 42

[41] The response which eventually came from Mr Hertaeg in writing restated his frustration about the materials couriered to his home relating to the enterprise agreement and that:

“The email was sent after arriving at work the same evening the courier delivered the EBA voting slip and after discussions with other technicians on shift that day. Myself and others could not understand the sudden rush to have the vote when we still did not have all of the relevant information to make a decision. Nor could we understand why a courier was needed to ensure that everyone had the slip and saw it as an unnecessary expense when a significant proportion of the EBA changes have focused on saving the company money.

The reasons we feel the EBA changes are significantly focused on cost savings is because they have tried to

- remove our additional 1% super

- change rosters

- reduce travel conditions

and remove our 15-year promotion to an SSO

All without negotiating anything in return, stating they are detrimental to a small business.

I sent the email out of frustration because I cannot understand how attempting to take away some of our existing conditions increases productivity, efficiencies, and innovation at our company. I cc'd the other Technicians because it had become very clear through my discussions with some of them, that my feelings were very similar to all of theirs.

My email was intended as constructive criticism. I chose to be open and honest about my concerns, rather than have the technicians talk behind your back.” 43

[42] The same correspondence outlined further frustrations on Mr Hertaeg’s part about his employment and said:

“When you issued the "First and final warning" you issued a general email to all staff asking for feedback about the meeting. I was never told I was being investigated, never given the opportunity to respond and never asked to discuss the accusations with a support person present.

If I had been given that opportunity I would have openly and honestly explained that I understood some of the language used was inappropriate, but it was a provoked response brought about by the degrading comments, innuendo, targeted bullying and harassment that I have endured. I would have given you the specific examples targeting me and examples other staff have been subjected to, that have in turn also influenced my mental health.” 44

[43] After reviewing a number of other problems with the company Mr Hertaeg concluded by putting forward that he had been subjected to bullying from Ansett Aviation Training’s management:

“My previous warning and our meeting of the 28th of February are further examples of managements bullying, harassment and not upholding the same set of rules they expect me to follow as you openly attacked me in front of all staff in your follow up email. After our meeting on the 28th of Feb when speaking with my representative, you said "but I wasn't on a first and final warning". This indicates you were fully aware it was inappropriate but the rules you expect me to follow don't apply to you.

In closing, I wish to state again that my email was not sent with the intention to be rude, act inappropriate or be offensive. I apologise that it was received this way and maybe the use of other words could have delivered the same message more effectively. I ask that the company reconsider its initial view that my employment should be terminated based on the email as I meant no malice.” 45

[44] Mr Anderson viewed the response from Mr Hertaeg as exhibiting no insight on his part or willingness to change:

“I received an email from the applicant on 2 March 2017. ... I reviewed the email shortly after I received it. My reaction to the applicant's email was that he showed no contrition or apology. Instead, I thought the applicant tried to blame others, and excuse and justify his actions based on unfounded accusations which had never previously been raised with me or other managers. It demonstrated to me that the applicant saw the world as "us against them", and that AAT management and especially me, were part of "them". Nothing in the applicant's email suggested to me he acknowledges his behaviour was unacceptable, that he was sorry for his behaviour, or that he would take steps to ensure it did not occur again. This was consistent with his earlier attempt to challenge the warning issued to him after his conduct in the August meeting.” 46

[45] Having reviewed Mr Hertaeg’s 2 March 2017 email Mr Anderson decided to dismiss Mr Hertaeg:

“Mr Birch and I met with the applicant and Mr Jose shortly after receiving the applicant's email. I said to the applicant words to the effect of: "I have considered your response. It contains a lot of unfounded allegations and I don't believe you are taking responsibility for your actions." On that basis, I told the applicant AAT had decided to terminate his employment on notice, which would be paid in lieu. I handed the applicant a letter of termination, ... Following the meeting Mr Jose told me AAT's decision to dismiss the applicant was "piss weak".” 47

[46] The letter confirming Mr Hertaeg’s termination of employment set out the following:

“Dear Richard,

Termination of your employment

We refer to our meeting today and confirm your employment with Ansett Aviation Training Pty Ltd (Company) is terminated for misconduct.

As discussed in the meeting, you have repeatedly engaged in aggressive, offensive and disrespectful behaviour, particularly towards Richard Anderson. You were formally warned on 26 September 2016 that further engagement in this type of behaviour would result in the termination of your employment. You engaged in similar behaviour by email on 10 February 2017. Accordingly, the Company has made the decision to terminate your employment for misconduct.

You will be paid in lieu of notice, meaning your employment ends today. In addition to your notice payment, you will receive any accrued but unused leave on the next pay date. The Company will also make compulsory superannuation contributions as required by law.

Please return all property belonging to the Company or any of its clients, including access keys, and documents and electronic storage devices recording or containing confidential information of the Company.

We remind you of your ongoing obligations to the Company, particularly in respect of confidential information.

Further, the Company will be vigilant to monitor any comments by you which are or may be defamatory or injurious to the Company or its staff.

Yours sincerely,

Richard Anderson

Chief Operating Officer

Ansett Aviation Training” 48

LEGISLATION

[47] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009, which is as follows:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

CONSIDERATION

[48] Determination of whether Mr Hertaeg’s dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[49] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way; 49

“[28] The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

• a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 50



• a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 51



• it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 52



• the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 53 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and



• the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 54” (original references)

[50] I will deal with each of the criteria within s.387 in turn.

(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)

[51] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship:

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, commonsense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 55

[52] Having been dismissed for misconduct, the Commission is first required to find whether on the balance of probabilities the alleged misconduct actually occurred. 56 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.57 Where it is relevant to do so, the Commission will also take into account the need for honesty on the part of the Applicant during the course of an investigation.58

[53] Mr Hertaeg puts forward that on any analysis the allegations could not have justified termination because his conduct did not constitute a contravention of the company’s “relevant policy” since his “conduct cannot be said to be occupational violence, workplace bullying, unlawful discrimination and sexual harassment or repeated disrespectful conduct”. 59 He also argues that his dismissal was capricious for reason that Ansett Aviation Training had previously advised him of a number of things including that it would provide him with the support to develop him; that Mr Anderson had said to Mr Jose on 11 February that he would “leave it up to you” in relation to his concerns about Mr Hertaeg; and that there was a delay between the offending email on 11 February 2017 and the date of dismissal.60

[54] As set out in the letter of termination, Mr Hertaeg was dismissed for reasons which include him having “repeatedly engaged in aggressive, offensive and disrespectful behaviour, particularly towards Richard Anderson” with him being warned in September 2016 that further engagements in that type of behaviour would lead to his termination and that he then engaged in similar behaviour on 10 February 2017.

[55] Ansett Aviation Training’s “Respectful Conduct in the Workplace” policy, dated 24 May 2016, is lengthy, however it its purpose is stated as including:

“This procedure is developed to provide a work environment that is safe and supportive, where all people treat each other with respect, fairness, equality and one that is free of bullying, discrimination or harassment.

AAT will not tolerate behaviour which is unlawful, or which it considers inappropriate, unethical or offensive in nature. Harassment, discrimination and bullying are unlawful and disciplinary action, including dismissal, may result for any worker who breaches the required standards of behaviours.

This procedure aims to:

• create a working environment based on everyone conducting themselves in the appropriate manner so that our workplace is safe and supportive for all

• increase the awareness and understanding of what kind of behaviour or conduct is acceptable and unacceptable;

• set and maintain appropriate standards of behaviour, which protect all workers, contractors, consultants, suppliers and customers from inappropriate conduct

• provide effective, fair, timely and confidential procedures based on the principles of natural justice for dealing with complaints if they arise;

• assist parties to any allegations to work through these as informally and as quickly as possible;

• provide an environment where individuals can make reports without fear of recrimination or victimisation.” 61

[56] The policy defines bullying in uncontroversial terms stating that it includes repeated unreasonable behaviour; and includes definitions of unlawful discrimination and sexual harassment. Elsewhere the policy imposes responsibilities on managers and supervisors to ensure compliance and development of suitable cultures and obliges them to “ensure principles of natural justice are afforded to all parties”. The policy also requires employees to avoid breaches of its requirements:

“10.3.3. Employees

Treat all persons with respect, fairness, equality and dignity;

• Take all reasonable steps to ensure that their own behaviour does not constitute, harassment, discrimination, victimisation, or bullying or condone such behaviour by others;

• Report any incidents of harassment, discrimination, victimisation, or bullying immediately to their Manager, Supervisor or designated Contact Officer

• Maintain confidentiality if they provide information during the investigation of a complaint;

• Co-operate with any investigation of a complaint of harassment, discrimination, victimisation, or bullying.” 62

[57] The policy sets out a procedure for the reporting, discussion and investigation of alleged breaches, as well as setting out record-keeping and confidentiality requirements.

[58] The way that the policy is designed to work is set out within its body as follows:

“10.4.1. Management And Resolution Of An Allegation Of Inappropriate Conduct

There are three main approaches that can be used to assist resolution

• Direct Contact (Informal resolution)

• Discussion involving an independent third party (Conciliation- informal resolution)

• Investigations (Formal)

These can be used in combination or on their own, depending on the situation involved. They can also be used as a step by step approach.

…”

[59] The policy then elaborates on the processes involved for each of these different methods as follows: 63

“APPROACH ONE: DIRECT CONTACT (INFORMAL RESOLUTION)

Informal resolution aims to ensure that the incident is resolved early and simply. Although a worker has the right to make either a formal or informal complaint, they should be encouraged to commence with an informal process first.

The direct approach involves a clear and polite request for behaviour to stop. This request can be made by the person affected, their manager or another relevant person. Anyone requested to act on behalf of the person affected should adopt a confidential, non-confrontational approach with a view to resolving the issue.

…”

“APPROACH TWO: DISCUSSION INVOLVING AN INDEPENDENT THIRD PARTY (CONCILIATION-INFORMAL RESOLUTION)

The objective is to settle an issue with as little conflict and stress as possible. The agreement of all parties to participate in this discussion is important for success, and the independence of the third party needs to be recognised by all parties involved.

The discussion should focus on resolving the problem and agreeing on actions that will be undertaken to assist the resolution. An internal Manager may conciliate the matter if they have the skills and it is appropriate for them to do so, or you may arrange for professional intervention.

This action can be undertaken at two stages in the resolution process:

• where the direct approach has not resolved the issue

• where an investigation has recommended discussion to assist resolution

…”

“APPROACH THREE: INVESTIGATIONS (FORMAL)

Where the behaviour does not cease after a direct approach or discussion, an investigation to establish whether or not the report is substantiated should be undertaken. Where a serious allegation has been made, an investigation should be the first step taken.

Prompt and careful investigation can lead to quick resolution and will demonstrate to workers that bullying, victimization, sexual harassment or discrimination is taken seriously. Investigations should be conducted by an impartial and appropriately skilled person (the business will most likely need to source an external consultant for the investigation).

The following key behaviours and principles of natural justice, as outlined below should be followed throughout the process.

Key behaviours are as follows:

• Treat all matters seriously

• Act promptly

• Non-victimisation of person who reports

• Support for both parties

• Neutrality

• Communication of process

• Confidentiality

• Documentation kept

That the Natural Justice principles are maintained:

• The person who is alleged to have committed the bullying, victimization, sexual harassment or discrimination (i.e. the respondent) should be treated as innocent unless the allegations are proved to be true

• Any allegation of bullying, victimization, sexual harassment or discrimination should be investigated promptly

• All allegations need to be put to the person who is alleged to have committed the bullying, victimization, sexual harassment or discrimination

• The person alleged to have committed bullying, victimization, sexual harassment or discrimination must be given a chance to explain his or her version of events

• If the complaint is substantiated, then any disciplinary action that is to be taken needs to be commensurate with the seriousness of the matter (i.e. the punishment must fit the crime)

Investigations and their outcomes should always be documented. The parties affected should be kept informed and provided with all necessary documentation.

At the end of an investigation, recommendations about the measures that should be undertaken to end the matter need to be made. In some circumstances, an investigation may find a report is not substantiated and no further action can be taken. In other situations, where a report/incident is substantiated, measures to assist complaint resolution should be assessed. This can involve looking at a range of strategies to see if they suit the situation.” (original underlining)

[60] Ansett Aviation Training went straight to a formal investigation (Approach Three), without seeming to first consider utilising the processes involving direct contact (Approach One) or discussion involving an independent third party (Approach Two). The company has not followed the specified processes within Approach Three, being those set out in the bullet points in the passage immediately above, referring to the need for allegations to be put to the person alleged to have been at fault and that the company “must” give the person alleged to have been at fault the opportunity to explain his or her version of events.

[61] Why it did not follow its own policy has not been adequately explained to the Commission. Ms Bottrell was not only investigating the events of 31 August, but she was providing training on the policy to Ansett Aviation Training staff. She must have known that the procedures she was following were not consistent with the policy. Mr Birch is an advisor to the company on human resources matters and it must also have occurred to him there were risks in proceeding the way he did when he was asked by Mr Garside to conduct an investigation.

[62] Some flexibility perhaps is given within that part of the policy which describes the direct contact (informal resolution) approach with an elaboration which says “Note: Where serious allegations of inappropriate conduct have been made an informal approach may not be appropriate.” The policy itself does not set out what may be “serious allegations or inappropriate conduct” although, through its conduct, Ansett Aviation Training plainly saw Mr Hertaeg’s conduct in that category.

[63] Even so, the fact that the investigation was conducted contrary to Ansett Aviation Training’s policy does not directly doom its product, and especially the warning given to Mr Hertaeg. The way the meeting on 31 August 2016 progressed and Mr Hertaeg’s belligerence in the meeting was capable of being observed and assessed by the other participants. Mr Anderson and Mr Garside were both capable of assessing whether that conduct required a sanction, noting that Mr Garside was not at the meeting and relied upon reports of the meeting from others.

[64] In his 2 March 2017 response letter, Mr Hertaeg concedes for the first time that he may have overstepped the mark – albeit with justification:

“If I had been given that opportunity I would have openly and honestly explained that I understood some of the language used was inappropriate, but it was a provoked response brought about by the degrading comments, innuendo, targeted bullying and harassment that I have endured.” 64

[65] In the hearing of the matter, Mr Hertaeg conceded he had behaved as alleged, agreeing that he had used the language reported by Mr Anderson, Ms Di Maio and Ms Scavitto, and that the things he said tended to undermine Mr Anderson. 65

[66] These concessions validate what the company already knew from the investigation process undertaken by Ms Bottrell – that the meeting had got out of hand; that Mr Hertaeg was central to the circumstance; and that his conduct was not a mere annoyance and was above what may be regarded as capable of toleration from a long-serving employee.

[67] In overall context, the assertion made by Mr Hertaeg through his Union in October that his behaviour had not been aggressive, abusive and belligerent, 66 falls on the evidence. Similarly, his submission to this Commission that his conduct did not constitute a contravention of the company’s “Respectful Conduct in the Workplace” policy because what occurred was neither “occupational violence, workplace bullying, unlawful discrimination and sexual harassment or repeated disrespectful conduct” simply cannot be sustained.67

[68] At the very least what was established through the investigation and supported in the evidence given to this Commission is conduct that was grossly disrespectful not only of Mr Anderson, but many other people in the room on 31 August 2016. Here was a very long serving employee of a relatively small company asking his managers and almost every other employee in his home base the question of “what about the fucking EBA and how you guys are fucking trying to steal from us” and further “the only way you get a promotion around here is to suck cock”. Mr Hertaeg cannot be seriously suggesting that to say these things in front of such an audience is either acceptable or something which would be allowed to pass without consequences.

[69] While Mr Hertaeg puts forward that he was not told his conduct was being investigated, he concedes he was asked by Ms Scavitto about a week after the meeting if he would meet with an external consultant about the 31 August 2016 meeting; however while conceding this matter, he says that “Ms Scavitto did not tell me that my conduct was being investigated but rather told me that the investigator, who I now know to be Ms Sue Bottrell, was speaking to everyone who attended the meeting”. 68

[70] The evidence about the meeting, including Mr Hertaeg’s concessions, is that it was conducted with some level of ferocity by two main protagonists, Mr Hertaeg and Mr Frasetto (who did not give evidence in these proceedings). Mr Hertaeg puts back that there was a third protagonist – Mr Anderson, whom he alleges “kept asking me over and over "do you think I'm doing a shit job?"” 69

[71] Acceptance of Mr Hertaeg’s proposition that he was somehow an ingénue about the work Ms Bottrell was doing; being someone merely speaking to everyone who attended the meeting, with no particular investigatory purpose, would require a finding that either there were many protagonists in the meeting or none at all. The weight of the evidence does not lead in that direction; instead it renders implausible the view that Mr Hertaeg would have the Commission adopt, that he simply had no idea his conduct was being called into question.

[72] At the very least, by 2 September 2016, when Mr Garside circulated his email to all staff, including Mr Hertaeg, he knew that Mr Garside was dismayed at complaints “with respect to the behaviours demonstrated by some attendees at last Wednesday night One Ansett briefing session” and that Ms Bottrell would be conducting interviews with all attendees. 70 There is no evidence before the Commission that the meeting was somehow an all-in melee and that Ms Bottrell was commissioned to find out who had caused it. When Mr Hertaeg came out of the meeting he likely knew that he and perhaps another had dominated the meeting and that their conduct had been ugly. He also likely knew that his own conduct was in question and would be investigated.

[73] While Mr Hertaeg initially put forward in his witness statement that he had not been contacted by anyone from the company or Ms Bottrell to talk about what occurred at the 31 August 2017 meeting, he corrected that in oral evidence by conceding that he missed a phone call from Ms Bottrell on 8 September 2016 which he did not return.

[74] While he endeavours to put forward that Mr Anderson was offensive in the meeting as well in asking him over and over “do you think I’m doing a shit job?”, with the response being in the affirmative 71 and that he helped move chairs out of the meeting room when the meeting finished,72 his concessions in his oral evidence are that the findings about his conduct in Ms Bottrell’s report are substantially correct. Those findings include:

“19. Hertaeg allegedly repeatedly swore during this exchange using the term "fuck", and directed this term directly to Anderson.

20. Anderson attempted to respond but Hertaeg would not allow him to.

21. Hertaeg said words to the effect "You want us to go and get training so we can suck cock under the table".

22. Hertaeg said words to the effect "why don't you pay me my fucking redundancy and I will be out of here."

23. Hertaeg is reported as speaking in a very high and stressed voice, becoming red in the face and behaving irrationally during the meeting.

24. Tony Frassetto interjected during the exchange and allegedly said words to the effect "do you want to take it outside" which were directed at McCaull, when McCaull attempted to respond.

25. Staff present interpreted this as a challenge to enter into a physical fight.

26. Anderson was reported as maintaining a calm composure

27. Anderson was reported as not swearing during the meeting.

28. This exchange went for approximately an hour

29. At approximately 8.30 p.m. Malcom Birch, HR Consultant, called time out, which was ignored by Hertaeg who continued abusing Anderson.

30. Birch again called time out and ended the meeting”  73

[75] Based upon all the circumstances, there is little doubt that the warning letter issued to Mr Hertaeg was warranted and that its contents were measured and justified.

[76] Notwithstanding that finding, and even if Mr Hertaeg thought the warning was unjustified, from no later than the date that the warning was issued to him on 27 September 2016, he was unambiguously on notice from that point forward about what was appropriate or inappropriate conduct within Ansett Aviation Training’s workplace. Whether agreed by him or not he was informed that his past conduct had been in breach of the company’s expectations and he was “clearly warned that if there is a further occasion in which you engage in offensive, aggressive or disrespectful behaviour in the AAT workplace you are likely to be dismissed”. 74 The warning letter not only contained blunt communication, it also took up with Mr Hertaeg the need for him to be seen to have insight into what had occurred within the meeting; to accept that he had crossed a line; and finally the encouragement that he take steps to make amends with those who were offended by his behaviour, chief amongst whom was undoubtedly Mr Anderson.

[77] It is fair to say that the insight Mr Garside called for from Mr Hertaeg never arrived. Rather than taking the opportunity which had been proffered by Mr Garside in the warning letter to show that he accepted the critique of his conduct and that he had indeed offended people, Mr Hertaeg reacted by challenging the basis of the warning, putting forward that there were deficiencies in the process that led to it being issued; that at no point had the allegations outlined in the warning letter been put to Mr Hertaeg; and, that Mr Hertaeg’s “only understanding was that Ms Bottrell was investigating what had generally occurred at the 31 August meeting”. 75

[78] While Mr Hertaeg and his Union reserved their rights generally to challenge the warning elsewhere, there is no evidence before the Commission that that was ever done.

[79] The warning letter was accompanied with a correspondence to all staff from Mr Garside, the company’s CEO. It stated pointedly that at the 31 August 2016 meeting “one employee behaved with excessive aggressiveness, constantly used foul language and made an obscene comment to the session's chairperson, while another employee made an aggressive request to their direct manager to step outside”; that both had been “dealt with” and that “[a]ny further breaches of AAT's workplace standards & behaviours will be acted on by AAT's management with expedience and due actions carried out against anyone who is proven to have breached those standards”. 76

[80] Ansett Aviation Training rely upon the September 2016 warning as the platform from which Mr Hertaeg’s February 2017 conduct can be said to rise to the point of misconduct justifying dismissal. That is, it is put forward by Ansett Aviation Training that Mr Hertaeg’s dismissal was for the reason that his conduct in February breached the warning given because of what occurred in August:

“24. Having been exceptionally fortunate to receive a reprieve for his conduct at the August meeting, the applicant was subject to a final warning - his last chance - not to engage in similar behaviour. He breached this warning with the February email. Viewed in the context of the August incident, the February email itself amounts to serious misconduct - it was a flagrant breach of the warning which amounts to wilful or deliberate behaviour that is inconsistent with the continuation of the employment (see r 1.07(2)(a) of the FW Regs).

25. Further, the combination of the August incident and the February email led to the result that the respondent could not trust that the applicant would maintain basic standards of courtesy and decency in the workplace. He did not respect management, and could not restrain himself from acting out his frustrations in a manner that was destructive of workplace harmony. Absent this trust or confidence in his future good behaviour, continued employment with the respondent was untenable.” 77

[81] Mr Hertaeg criticises the process by which employees were notified of the enterprise agreement vote in February 2017. He thought couriering voting slips to employees’ homes was a waste of money especially within the context of Ansett Aviation Training saying during bargaining that they were a small business that had to make savings. He also thought the process was inconsistent with what had been agreed earlier and that there was a lack of direction on the part of the company about voting. Additionally, he thought when he received the voting slip that all technicians must have been sent the voting slip by courier. 78 The company’s reasoning for sending a ballot paper by courier is dealt with in the witness statement of Mr Birch. Wanting to ensure that the vote for the proposed enterprise agreement is valid he and Mr Anderson sought assistance from Mr Jose and:

“28. On Friday, 10 February 2017, Mr Jose sent Mr Anderson an email, copying me in. In this final paragraph of the email he said:

''Finally, can you please make sure that any employee who is covered by the agreement and eligible to vote but will be absent from work during the voting period (ie, on annual/eave or LSL) has been sent a copy of the agreement document with 7 days to access and will also be provided a voting ballot form via post so that they can vote and return their vote for the final counting?"

...

29. Given Mr Anderson was away, I decided this should extend to employees who were not rostered to work on the date of the commencement of voting (13 February 2017), and that sending the voting slips by courier would be more reliable than post.” 79

[82] Mr Hertaeg recalls returning home from work in the morning on 11 February 2017 and that later in the day he went out. While he was out he received a text message advising that a voting slip would be couriered to him, which took place by the time he returned home. 80

[83] Having received the correspondence by courier, Mr Hertaeg then sent an email to numerous people including Mr Anderson, Mr Birch and all of his technician colleagues. The email was entitled “using courier to deliver voting slips?” It opened with the somewhat provocative tone “is there no end to the wasteful nature of this management”. The contents of the email are set out above and do not need to be repeated. The complaints agitated within the email are that Mr Anderson had been wasteful; that there was suddenly an imperative for a courier to be used to deliver a voting slip on the question of “do we accept this downgrade to our award”; the company was prepared to hand out cash to any entity as long as it is external to the company; that management believes they can take advantage of staff loyalty by treating staff like fools and themselves acting as mercenaries. It concluded with the taunt; “If this agreement goes through maybe we can get the flowers back? The place is looking a little dull and we could all do with something to boost morale!” 81

[84] Mr Anderson responded to the email with his own email, sent to all of the people who had received Mr Hertaeg’s as well as three other managers and the ASU’s Ingrid Stitt who had been the lead negotiator for the enterprise agreement. Within his response Mr Anderson defended the company’s actions, assertively taking down each of the propositions put forward by Mr Hertaeg. Objectively the tone of Mr Anderson’s response is similar to that of Mr Hertaeg’s. In parts it is emotional; in others it is sarcastic. It also challenges Mr Hertaeg in significant respects, including by describing his communication as a “little rant” and “offensive”. It called into question whether Mr Hertaeg had sufficient information to make his assertions and challenged him to respond further on some matters. In short, Mr Anderson gave as good as he got.

[85] In the context of this particular matter whether or not a response on such terms was a good idea or was itself a failure to adhere with the company’s respectful conduct in the workplace policy is an interesting question.

[86] On the one hand the response from Mr Anderson is plainly disrespectful of Mr Hertaeg. At the very least it publicly expressed the view to those who received the email that what Mr Hertaeg had to say was not only wrong but completely unjustified and unjustifiable as well as seeming to put forward the proposition that if he wished to express such views in the future he had better come up with better arguments. Wise counsel to Mr Anderson should have been to step away from the keyboard, to leave the matter alone and take it up privately with Mr Hertaeg at another time. Nonetheless, the correspondence by Mr Anderson was sent, extending over four typed pages.

[87] On the other hand, within the context of the company’s relationship with Mr Hertaeg, Mr Anderson was entitled to see Mr Hertaeg as either a loose cannon or thinking he was immune from challenge. Certainly within the context of a completely unambiguous warning given only a few months earlier the February 2017 correspondence from Mr Hertaeg likely highlighted to Mr Anderson that in all probability Mr Hertaeg had no intention of developing insight into his behaviour, or in heeding the caution he had been given or changing his ways.

[88] In terms of this decision the question is whether or not, at the time Ansett Aviation Training came to dismiss Mr Hertaeg for reason of the misconduct set out within its termination letter, particularised as him having “repeatedly engaged in aggressive, offensive and disrespectful behaviour particularly towards Richard Anderson” the alleged misconduct actually occurred. That finding is open to the Commission.

[89] The communication from Mr Hertaeg to Mr Anderson was disrespectful because the combined effect of its content and its wide distribution list. I do not find in the overall context that the communication was offensive.

[90] In overall context, the 10 February 2017 email was disrespectful of Mr Anderson. The email inferred that Mr Anderson did not care about the incurring of unnecessary costs; that he was prepared to circulate for voting an enterprise agreement that downgraded employees conditions; that he did not care about employees while caring about external contractors; and that he was taking advantage of employees. It was proper in the context for Mr Anderson to call Mr Hertaeg to account by requiring him to attend a meeting for the purpose of discussing matters about his ongoing employment.

[91] Mr Anderson gave evidence that he delayed scheduling the meeting for several reasons including that the enterprise agreement vote was being held on 15 February and that the company’s management resources were consumed by the vote. He also argued separately that he was out of Melbourne until the 17 February and that Mr Hertaeg was not rostered on to work in that period. 82 Overall the explanation Mr Anderson gave is reasonable and no criticism attaches to the time taken by him to schedule the meeting. It cannot be said because of the delay that somehow Ansett Aviation Training condoned Mr Hertaeg’s behaviour and that there would be no consequences whatsoever from the correspondence he sent on 10 February 2017.

[92] The meeting took place on 28 February 2017. Mr Anderson’s evidence is that a number of matters were discussed with Mr Hertaeg and the others attending; including that Mr Hertaeg had received a first and final warning about engaging in offensive, aggressive or disrespectful conduct; that his February 2017 email constituted a breach of that warning condition; that the Respondent was considering terminating his employment and the Board had authorised his dismissal for misconduct; that a final decision on his ongoing employment had not been made; and that he had the opportunity at that time to make any comments for AAT to consider prior to a final decision being made. 83

[93] Mr Hertaeg says that Mr Anderson asked him why he should not be dismissed on the spot, 84 which is something denied by Mr Anderson.85 Mr Jose agrees that Mr Hertaeg had been asked to justify his ongoing employment.86 After considering the manner in which Mr Anderson gave his evidence, which was at times imprecise about what was actually said and at other time shifting on the things he said he had been authorised by the Board to do, when those matters were actually his own decisions, I find that it is likely he did ask Mr Hertaeg for a justification of his continued employment.

[94] It is common between the witnesses that Mr Hertaeg did not speak substantively in the meeting and that he was permitted to provide a later response in writing, which he did on 2 March 2017. In that response there is an explanation to the effect that it was Mr Hertaeg’s frustration that caused him to send the email, and that it was intended as constructive criticism without an intention of being rude or acting inappropriately. In the email Mr Hertaeg spent some time reviewing recent and longer history and then put forward the following:

“Imagine if the company you have given over half of your life to all of a sudden turned around and said all of these things to you, how would you feel? The discussion started with the company stating they didn't want to give this promotion as staff didn't deserve it just for years of service, when it could have started with the job description and an explanation on how the new proposal would provide benefits to the company and its employees into the future. Maybe the use of other words could have delivered the same message more effectively. This combined with the bullying and psychological torment outlined above, has had and continues to have a serious impact on my mental health, which made a significant contribution to my robust response that preceded the previous warning you issued.

When you issued the "First and final warning" you issued a general email to all staff asking for feedback about the meeting. I was never told I was being investigated, never given the opportunity to respond and never asked to discuss the accusations with a support person present.

If I had been given that opportunity I would have openly and honestly explained that I understood some of the language used was inappropriate, but it was a provoked response brought about by the degrading comments, innuendo, targeted bullying and harassment that I have endured. I would have given you the specific examples targeting me and examples other staff have been subjected to, that have in turn also influenced my mental health.” 87

[95] He concluded that his:

“… previous warning and our meeting of the 28th of February are further examples of managements bullying, harassment and not upholding the same set of rules they expect me to follow as you openly attacked me in front of all staff in your follow up email. After our meeting on the 28th of Feb when speaking with my representative, you said “but I wasn't on a first and final warning". This indicates you were fully aware it was inappropriate but the rules you expect me to follow don't apply to you.

In closing, I wish to state again that my email was not sent with the intention to be rude, act inappropriate or be offensive. I apologise that it was received this way and maybe the use of other words could have delivered the same message more effectively. I ask that the company reconsider its initial view that my employment should be terminated based on the email as I meant no malice.” 88

[96] The difficulty with this communication ultimately is it lacks sufficient insight about the things Mr Hertaeg said either in August 2016 or those in February 2017.

[97] In relation to the August 2016 meeting, the furthest he goes is to concede that some of his language had been inappropriate, but that it had been provoked. There is no concession that the combined effect of the statements and conduct had been offensive and disrespectful, merely that some language was inappropriate. His reliance on provocation as a defence continues to challenge the basis of the September warning.

[98] In relation to the February 2017 email, he appears to put forward that the communication contained things that were not only accurate but needed to be said. There is no acceptance that what he wrote called into question Mr Anderson’s actions and motives, or that a wide distribution list magnified the audience for his complaints or compounded their effect. He puts forward that such lack of respect he may have shown is neutralised by Mr Anderson’s own lack of respect to him.

[99] Overall, there is no insight and insufficient contrition to be seen within Mr Hertaeg’s written response.

[100] In addition to these matters, Mr Hertaeg puts forward that Ansett Aviation Training’s decision to dismiss him was capricious because the company had previously advised Mr Hertaeg that “it was committed to providing the applicant with the tools and support to develop the applicant positively” and that “it would ‘leave it up to’ Mr Jose”. 89

[101] The context for this is Mr Jose’s understanding about the likely consequences for Mr Hertaeg from the email he sent on 10 February 2017. Mr Jose records in his witness statement that he was very disappointed with Mr Anderson’s response to Mr Hertaeg and that because of that he sent his own email to Mr Anderson on 11 February which was not copied to anyone else. Mr Jose acknowledged in his email to Mr Anderson that while he may feel a little upset about the content of Mr Hertaeg’s email that he did not think “that responding with some personal jabs at him in return is either beneficial or conducive to getting this proposed agreement closer to resolution”. 90 The correspondence continued:

“I have and will continue to ask that our members remain focused on trying to resolve this EBA without dragging personal and emotional baggage along and with all due respect I ask that when addressing employees as a group or individually that the company and management do the same. Whilst there's no doubt that recent times have been challenging and somewhat frustrating to all, I'm confident if we stick to the main aim of what we are all trying to achieve, we will get there sooner rather than later. I have in previous emails asked the ASU Delegates and members if they would like me to attend the site to again to address them in relation to the EBA and feel that it's necessary now considering some of the commentary that's been lobbed around.

Both Tony and Dean have been on leave for a few weeks so their absence may have created some additional worry to our members seeking clarity on EBA process issues and details. Whilst we have tried to cover all bases there obviously remains some concern in the minds of some individuals and I'm happy to front up to address them again.

Regards,

Victor Jose

ASU Vic Branch Private Sector- Organiser” 91

[102] Mr Anderson responded with the following:

“Victor,

Thanks for your note and I agree I don't want to be having to send emails like this - we have all got more positive and productive things we can be doing. Having said that I could not let one I'll-informed member try and pollute the minds of all staff. If he doesn't agree with what's in the EBA then that's fine and I am sure he has been very vocal in your member meetings, but we all need to ensure we stick to the facts - which was the point of my email.

With regards to meeting with members. To be honest - from my perspective you are free to meet communicate however you wish. I can't judge how staff are influenced by Mr Hertaeg. Certainly at his previous Public performance, no one spoke against him, so maybe I am wrong and he is virtually leading the room. This would be very disappointing as I would suggest there are staff wanting to build strong and sustainable careers at Ansett and don't agree with the behaviours that he is repeatedly showing, which do drive a wedge between management and members. This is not what any of us want surely.

I will leave it up to you, however you have my full support in whatever course of action you deem necessary.

Regards

Richard” 92 (underlining added)

[103] It is also said in Mr Jose’s witness statement that:

“28. My impression from Mr Anderson's email to me on 11 February 2017 was that nothing more would come of the Mr Hertaeg's email exchange with Mr Anderson. Mr Anderson explicitly said that he would leave it up to me.

29. Generally I was surprised by Mr Anderson's email to Mr Hertaeg. I thought it was very unprofessional and I was worried that it would solicit a negative reaction from the membership. In my opinion, Mr Hertaeg's email to Mr Anderson was robust criticism and did not warrant Mr Anderson's lengthy and personal response.” 93 (underlining added)

[104] The proposition that Ansett Aviation Training was capricious in its conduct towards Mr Hertaeg and that somehow it had delegated to Mr Jose responsibility for counselling or disciplining Mr Hertaeg is simply not made out from the exchange between Mr Jose and Mr Anderson or from any of the other evidence before the Commission. The proper interpretation of the last words of Mr Anderson’s email to Mr Jose on 11 February 2017 in which he said “I will leave it up to you, however you have my full support in whatever course of action you deem necessary” could be many things. However, reasonably viewed, the statement appears more connected with the meeting of members referred to in the previous two paragraphs and with getting a successful vote for the enterprise agreement than with disciplining Mr Hertaeg. The fact that only Mr Jose spoke on behalf of Mr Hertaeg in the meeting of 28 February 2017 and that so much of Mr Hertaeg’s written response to the company on 2 March 2017 is taken up with him attacking the basis of the warning given to him in September 2016 informs my views about the communication between Mr Jose and Mr Anderson on 11 February 2017. There is nothing within these later communications which would suggest Mr Hertaeg was about to accept the proposition from anyone, including his Union, that he may have overstepped the mark in any of his communications.

[105] Acceptance of Mr Hertaeg’s proposition to this Commission that Ansett Aviation Training had been capricious toward him because it had said it would leave it up to his Union to deal with the transgression on his part would require some positive evidence to the effect that Mr Hertaeg would ever be receptive to such counselling. No such evidence is before the Commission.

[106] Criticism is also made of Ansett Aviation Training that, at the time it convened the meeting with Mr Hertaeg on 28 February 2017, it had already drafted a letter of termination of his employment. The fact that a path of termination was considered or intended is hardly remarkable; few managers would go into such a meeting unprepared for the likely eventualities. What must be considered however, is that the decision was not actioned on that occasion, but instead the outcome of the meeting was for Mr Hertaeg to be provided with the opportunity to respond, which he accepted.

[107] As a result, by 2 March 2017, Ansett Aviation Training was left with a circumstance in which observably Mr Hertaeg had allowed his emotions to get the better of him on two occasions and that on the second occasion, after having been warned about his conduct, he not only saw no need to control himself but once his failure to do so had been drawn to his attention with the possible consequences spelled out to him, he saw no reason to back away from what he had said or, more simply, to apologise. Reasonably, Ansett Aviation Training was by the time it received Mr Hertaeg’s email on 2 March 2017, entitled to form the view not only that Mr Hertaeg was not capable of being cautioned about his behaviour but also that he would give no commitments about his future conduct. As a result, the alleged misconduct on the part of Mr Hertaeg is found to have occurred.

[108] Is also the case that, because of this, at the time it dismissed him, Ansett Aviation Training had a valid reason to do so.

(b) whether the person was notified of that reason

[109] The evidence supports a finding that Mr Hertaeg was notified of the reasons for his dismissal.

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

[110] Mr Hertaeg was given an opportunity to respond to the reason held by Ansett Aviation Training for his dismissal.

(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

[111] There was no refusal by Ansett Aviation Training for Mr Hertaeg to have a support person in any discussions that were had about the future of his employment. Accordingly, this factor is a neutral consideration in my decision.

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

[112] Mr Hertaeg was not dismissed because of unsatisfactory performance and so this factor is also a neutral consideration in my decision.

(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

[113] At the time Mr Hertaeg was dismissed, Ansett Aviation Training employed 40 employees globally, of which 29 are based in Melbourne. There is no evidence before the Commission that the Respondent’s size impacted on the procedures it followed in effecting Mr Hertaeg’s dismissal.

(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;

[114] The evidence in this matter includes that Ansett Aviation Training had access to and did access dedicated human resource management specialists or expertise in making its decision to dismiss Mr Hertaeg.

(h) any other matters that the FWC considers relevant

[115] The Commission does not consider there are any other matters required to be dealt with in this decision.

CONCLUSION

[116] For the reason that it has been found Ansett Aviation Training resort had a valid reason for Mr Hertaeg’s termination of employment and that there are no other factors which would lead to a finding that Mr Hertaeg’s termination was otherwise unfair, it is my finding in this matter that he was not unfairly dismissed.

[117] As a result, Mr Hertaeg’s application for unfair dismissal is dismissed and an order to that effect is issued at the same time as this decision.

COMMISSIONER

Appearances:

Ms Abbey Kendall Solicitor for the Applicant

Mr Angel Aleksov of Counsel for the Respondent

Hearing details:

2017.

Melbourne:

20 June.

Final written submissions:

Applicant: 14 July 2017.

Respondent: 28 July 2017.

 1   Exhibit A6, Witness Statement of Richard Hertaeg, [11].

 2   Exhibit R5, Witness Statement of Richard Anderson, [6]-[7].

 3   Exhibit A6, Annexure RH13.

 4   Exhibit ASOF1, Agreed Statement of Facts, [6]; Exhibit A6, [17]; Exhibit A6, [14].

 5   Exhibit R5, [29].

 6   Ibid, [31]

 7   Exhibit A6.

 8   Exhibit R5.

 9   Exhibit R6, Attachment DG-1.

 10   Ibid.

 11   Exhibit A6, [21].

 12   Exhibit R5, [49].

 13   Exhibit R6, [6].

 14   Ibid, Attachment DG-1.

 15   Exhibit R6, Witness Statement of David Garside, Attachment DG-4.

 16   Exhibit R6, Attachment DG-2, pp.3-4.

 17   Exhibit R7, Witness Statement of Sue Bottrell, [8] – [12].

 18   Exhibit R6, [9]; Exhibit R5, [51] – [53].

 19   Exhibit R5, Attachment RA-7.

 20   Exhibit R6, [10].

 21   Exhibit R6, Attachment DG-4.

 22   Exhibit A6.

 23   Ibid, [28]

 24   Ibid, Attachment RH-3.

 25   Ibid.

 26   Ibid, [29].

 27   Ibid, [31] – [33].

 28   Transcript, PN 299.

 29   Ibid, Attachment RH-5.

 30   Ibid.

 31   A former owner of the business.

 32   Ibid, Attachment RH-8

 33   Ibid, Attachment RH-9.

 34   Exhibit R5, [56].

 35   Ibid.

 36   Ibid, [63].

 37   Ibid, [68].

 38   Ibid, [69].

 39   Ibid.

 40   Exhibit A6, 55.

 41   Exhibit A8, Witness Statement of Victor Jose, [42].

 42   Exhibit R8.

 43   Exhibit A6, Attachment RH-12.

 44   Ibid.

 45   Ibid.

 46   Exhibit R5, [77].

 47   Ibid, [79].

 48   Exhibit R5, Attachment RA-13.

 49   Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520.

 50   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 51   Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].

 52   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

 53   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

 54   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].

 55   Selvachandran v Peteron Plastics (1995) 62 IR 371, p.373

 56   Edwards v Giudice (1999) 94 FCR 561 [6]‒[7]

 57   Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171

 58   Streeter v Telstra Corp Ltd (2008) 170 IR 1

 59   Exhibit A17, Applicant's Outline of Submissions, [13] – [32].

 60   Ibid, [33].

 61   Exhibit R5, Attachment RA-6.

 62   Ibid.

 63   Ibid.

 64   Exhibit A6, Attachment RH-12.

 65   Transcript PN 280 – 281; 290.

 66   Exhibit A6, Attachment RH-3.

 67   Exhibit A17, [31].

 68   Exhibit A6, [22].

 69   Ibid, [21].

 70   Exhibit R7, Witness Statement of Sue Bottrell, Attachment SB-2.

 71   Exhibit A6, [21].

 72   Transcript PN 155.

 73   Exhibit R6, Attachment DG-2.

 74   Ibid, Attachment DG 3.

 75   Exhibit A6, Attachment RH-3.

 76   Ibid, Attachment DG-4.

 77   Exhibit R10, Respondent’s Outline of Submissions.

 78   Exhibit A6, [39] – [41].

 79   Exhibit R8, [28] – [29].

 80   Exhibit A6, [38].

 81   Ibid, Attachment RH-8.

 82   Exhibit R5, [72].

 83   Ibid, [74].

 84   Exhibit A6, [55].

 85   Exhibit R5, [75].

 86   Exhibit A8, [42].

 87   Exhibit R5, Attachment RA-11.

 88   Ibid.

 89   Exhibit A17, [33.1] – [33.2].

 90   Exhibit A8, Attachment VJ-9.

 91   Ibid.

 92   Ibid.

 93   Exhibit A8.

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