[2017] FWC 537


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Glenn Rogers
Allianz Insurance Australia T/A Club Marine Insurance



Application for relief from unfair dismissal.

[1] Mr Rogers was employed by Allianz Australia Services Pty Ltd (Allianz) as National Business Development Manager of Club Marine Limited, the boating insurance branch of Allianz. The Respondent is a subsidiary of Allianz Australia Limited. Mr Rogers was employed from 4 January 2016 until his dismissal on 8 August 2016. It is accepted that: Allianz is a national system employer; Mr Rogers earned less than the high income threshold; has the minimum employment period for protection from unfair dismissal; was not dismissed for reasons of redundancy; and made his application within time. The issue to be determined is whether or not the dismissal for misconduct was unfair.

[2] Allianz does not rely on any issues concerning Mr Rogers’ performance. There are two matters which Allianz says provide a valid reason for dismissal:

[3] Mr Rogers says in respect to the allegation concerning the comment made to Ms Farrelly that:

[4] The minutes of the meeting that led to the termination state that Mr Rogers said that he had heard one colleague say to another colleague in the evening “OMG you just touched my vagina” and laughed. Mr Rogers stood by this account during the hearing.

[5] Mr Rogers submits that Allianz gave inadequate consideration to the context within which the comment was made. There is considerable conflict between the parties about the context.

[6] Mr Rogers gave evidence in respect to the alleged misuse of his position. He says that in about June he had arranged approved annual leave for an overseas trip later in 2016. A friend was to accompany him. As he intended to go overseas he asked his manager, Mr Beattie, if he would be interested in him researching particular stories whilst overseas. It is agreed that Mr Beattie said that there was no interest in the stories at this stage. Mr Rogers then proceeded to seek to make arrangements with a number of third parties for the provision of services such as business class airfares for his overseas trip and for accommodation in return for promised editorial space in the magazine. Mr Rogers did not advise Mr Beattie of these approaches despite Mr Beattie having earlier instructed Mr Rogers to copy him into such correspondence and to not promise editorial space without his approval.

[7] Mr Rogers also says in respect to the alleged misuse of his position that seeking to make such arrangements with suppliers and associated companies was a central part of his job, that the arrangements were also designed to generate advertising income for the company consistent with his role, that the arrangements were similar to those commonly entered into by other managers and to arrangements he had been asked to facilitate for other managers. However, there is no suggestion that any of these other arrangements related to periods of annual leave or that they were arranged without authorisation. Mr Rogers denies that his actions were in breach of Allianz’s code of ethics. He says that the goods and services for his personal benefit were not ever actually received because the dismissal of his employment intervened.

[8] Allianz sought to introduce further evidence or examples in respect to this matter the day before the proceedings. I refused to admit the further evidence. I considered that to do so would be unfair to Mr Rogers given that the material resulted from email searches which could have been done earlier.

The matters in contention

[9] In deciding whether or not the dismissal was unfair I am required to consider the following:

[10] At the start of the proceedings the parties agreed with my preliminary assessment as follows:

[11] In respect to (h) other matters there were four issues raised by Mr Rogers. Firstly, the allegation that he was the subject of bullying. Secondly, in respect to the allegations concerning the emails discovered post dismissal that he was not being treated consistently because similar conduct by others was condoned. Thirdly, that the response to the 8 July incidents was disproportionate. Fourthly, that the dismissal process was unfair because of the lack of time between him being notified and the meeting when he had to answer the charges.

The events of 8 July 2016

[12] Mr Rogers says that he made the comment in the members bar. Both parties agree that six or seven colleagues had joined Mr Rogers in the members bar from about 9pm until 11.30pm. The identity of the six colleagues is agreed. One witness believes that a seventh person was present for a short time. The other colleagues do not recall that person being present. I do not consider that this is a conflict of evidence. Allianz had questioned four of the persons present as part of the process leading to the dismissal. The other two persons present were required to give evidence in response to a summons requested by Mr Rogers. All six persons gave evidence in the proceedings. The members bar is next door to the Olympic Room where the earlier part of the event had been held. The general public does not have open access to these areas. Club Marine has corporate membership of the Sandringham Yacht Club.

[13] Mr Rogers says that the sequence of events was:

[14] Allianz says that the sequence of events was:

[15] There are some key points of consistency in the evidence:

[16] There are some key points of conflict between the evidence of Mr Rogers and the other persons who were present:

[17] In respect to each of these points I reject the evidence of Mr Rogers:

[18] There are some points of inconsistency in the evidence of Mr Powell, Ms Farrelly, Ms Clayton and Mr Leaper:

[19] I am not satisfied that there is any significance in these minor points of inconsistency. It is totally understandable that Ms Farrelly who was upset and shocked at the time may have been confused about the location where the final conversation of the evening between herself and Mr Rogers occurred. It is also understandable that there may be different recollections about exactly where passengers entered and left the taxis.

[20] Mr Rogers raised doubts about the extent to which Ms Farrelly and Allianz were genuinely concerned about the offensive remark he made to Ms Farrelly. He pointed to the fact that after Mr McLean and Ms Te Maipi became aware of the incident in late July they allowed Mr Rogers to continue working for a week before calling him to a meeting and dismissing him. He also pointed to the fact that Mr Rogers was invited to participate in events including with Ms Farrelly at the Sydney Boat Show after Mr McLean was aware of the complaint. He pointed to the fact that Ms Farrelly was in a small group that had a drink with him one evening at the hotel where they were staying for the Sydney Boat Show. Ms Farrelly gave evidence, which I accept, that she felt very uncomfortable in Mr Rogers’ presence during this period, that she had minimal interaction with him and that she was acting professionally in the interests of the company. On one occasion after the incident Mr Rogers had to collect merchandise for use at the boat show with Ms Farrelly. Another colleague was present at the time. Mr McLean gave evidence, which I accept, that he did not consider it appropriate to take action against Mr Rogers until he had investigated further by talking to some others who had been involved in the incident and consulting with human resources managers in Allianz.

The procedural issues

[21] Simon McLean, CEO of Club Marine, gives evidence that he first became aware of the issue concerning the 8 July events on 28 July 2016. He was told about them by Ms Te Maipi. He then raised it with Ms Farrelly within the next day. He also spoke to Mr Leaper who was in the taxi with Mr Rogers and Ms Farrelly. The matter was discussed further internally on 2 and 4 August 2016. Ms Thomas prepared a notice of meeting as requested by Mr McLean on 4 August 2016. A meeting was arranged for the following Monday, 8 August 2016 when Mr McLean proposed the notice would be given.

[22] Mr Rogers was asked to attend a sales meeting at 8.30am or 9am on Monday 8 August. Allianz says that it was at 8.30am and Mr Rogers says that it was at 9am but I do not consider that anything turns on this. At that time he was issued with the notice of meeting. That notice sets out the allegations concerning the 8 July 2016 events and asks Mr Rogers to respond at a meeting to be held at 10am. The notice provides the opportunity for a support person to be present at the meeting. The notice also says that termination of employment is a possible outcome of the meeting.

[23] Mr Rogers says, and I accept, that he wanted Mr Blatchford, a person not employed by Allianz, to be his support person but Mr Blatchford was unable to attend at such short notice. Mr Rogers did not request that the meeting be delayed to enable his chosen support person to be present. The meeting proceeded without a support person. Mr Rogers suggested that the meeting commence prior to the scheduled time of 10am and the company agreed to this. Mr Rogers says that he explained that this was because he was unable to obtain a support person in the time available whilst the Allianz witnesses deny that this was said by Mr Rogers. Mr Rogers says that he was new to Melbourne and hence there was no family member or suitable work colleague available as a support person. I prefer Mr Rogers’ evidence on this point but I am satisfied that it was Mr Rogers’ decision to proceed earlier without a support person and not to request an adjournment until a support person could attend. This is reinforced by the uncontested fact that Allianz specifically told Mr Rogers that he could have a support person when they invited him to the meeting.

[24] The first copy of the notice of meeting was dated 4 August 2016 and then it was replaced with a notice dated 8 August 2016. Mr Rogers says that this shows that Allianz could have raised the matter with him earlier.

[25] At the meeting Mr Rogers admitted to the comment made to Ms Farrelly but provided some explanation concerning the context. He denied the other allegations.

[26] At the end of the meeting management left for about 10 minutes and discussed Mr Rogers’ responses. They returned and advised Mr Rogers that he was dismissed and he was then sent a termination letter. The termination letter repeats the allegations in the notice of meeting and summarises Mr Rogers’ response and advises that his employment is terminated with payment of one week in lieu of notice.

[27] It is not in dispute that Mr Rogers was:

[28] In some circumstances the short notice of the meeting may be a factor (under Section 387(h)) which suggests that the process was procedurally unfair. This is particularly the case when the factual matters relied upon by the employer are voluminous or complex. I am not satisfied that there was any significant unfairness in this case. The principal allegations relied upon related to the 8 July 2016 team building event. Although some weeks had passed it was not such a long time that Mr Rogers could not be expected to have reasonably clear recollection. The employer did not rely on documentary material but rather on the recollection of those who had been involved in the 8 July 2016 incident. It is not readily apparent how further notice would have assisted Mr Rogers. Additional time would not have allowed him the opportunity to obtain additional relevant information. All that was really relevant in response to the allegations was his version of the events and his response to the version of events of others who were present.

[29] Mr Rogers was critical of the fact that that employer did not interview two of the participants. One of the two persons gave evidence that in fact Mr McLean did speak to them and asked them if they had seen anything that evening. It may have been better if Ms McKerlie had been interviewed and I found her evidence useful. However, I am not satisfied that this impacted on the procedural fairness of the dismissal.

Was there a valid reason for the dismissal relating to Mr Rogers’ conduct?

[30] Although I have accepted that Mr Rogers behaved aggressively towards Ms Clayton I am not satisfied that this conduct was sufficiently serious that it could form a valid reason for dismissal. I also do not think that there is any problem with the fact that Mr Rogers was critical of his employer and the magazine at the function. In my view it is to be expected that employees will be critical of the employer in discussions at work social functions. When work colleagues relax it is reasonable for them to let off some steam. The standards of behaviour which are appropriate at a work social function and those which are appropriate during normal working hours and duties are different in this respect. This is particularly the case in circumstances where the employer has funded alcohol at the event and given that the more formal part of the event had concluded. However, I consider that the behaviour towards Ms Clayton created a context within which the behaviour towards Ms Farrelly occurred.

[31] There is nothing in the material provided by Mr Rogers that could justify the making of the offensive comments to Ms Farrelly. Given I have rejected Mr Rogers evidence concerning the incident and have accepted the evidence of Ms Farrelly the behaviour is even more indefensible.

[32] The issue raised by Mr Rogers which has the most force is that the event took place outside of the normal workplace, outside of normal working hours and based on the findings I have made it occurred in a taxi after the work social function had ended. Events at work social functions can form a valid reason for dismissal but certain conditions need to be met. It is relevant in this case that Allianz has a code of conduct and a policy regarding harassment. Mr Rogers accepted that he was familiar with those policies. It is clearly a breach of those policies to engage in conduct which offends, humiliates or intimidates. The policies are not restricted to conduct in the workplace but include conduct “in connection with employment.”

[33] The leading authority on the question of the extent to which conduct outside the normal workplace and or normal working hours can provide a valid reason for termination is the decision of Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited1

[34] He concluded, at page 12:

[35] His Honour concluded that a valid reason for termination for conduct outside work would require “requisite connection to his employment”.

[36] In Anthony Farquharson and Qantas Airways Limited2 a Full Bench dealt with “the peculiar circumstances attending slip time in a foreign port that give Qantas a legitimate interest in the slip time conduct of its flight crew that is far greater than the usual interest of an employer in the off duty conduct of its employees.” In that case, Qantas had a legitimate interest in ensuring that incidents did not occur which damaged its interests and reputation.

[37] Mr Rogers referred to the decision of Vice President Hatcher in Stephen Keenan v Leighton Boral Amey NSW Pty Ltd3 In that case the Vice President found that conduct which occurred between work colleagues in an upstairs bar did not constitute conduct within the scope of employment such that it could legitimately constitute a valid reason for dismissal having regard to the principles in Rose. The offensive behaviour in that case occurred in a private social setting, albeit involving persons sharing a common employer who had just attended an official Christmas function. The Vice President did not consider that the conduct was indicative of a rejection or repudiation of the employment contract in that case. In that case the Christmas function had a defined finish time and location in the notice provided to employees. The behaviour occurred in a different location and after the designated time. The Vice President did find that conduct which occurred during the official function did constitute a valid reason for dismissal. However, he found the dismissal was unfair after taking into account a number of factors including the intoxication of the Applicant and the contribution that the employer made to his intoxication.

[38] In this case there was no suggestion that Mr Rogers was drunk or that the employer failed to adequately control the supply of alcohol during the formal part of the proceedings.

[39] I have no doubt that both Mr Rogers and the victim, Ms Farrelly, were in attendance at the event in their role as employees and not in a private capacity. If it were not for the work function and the requirement to attend it, neither Mr Rogers nor Ms Farrelly would have been in the members bar nor would they have been in the taxi leaving the bar. I agree with Vice President Hatcher that it is not sufficient to establish that “but for” the fact that Ms Farrelly and Mr Rogers were both employees the event would not have occurred. I agree that there must be a stronger connection to work than that. I do not accept Mr Rogers’ evidence that the work event ended at 9.30pm when the group moved from the Olympic room to the members bar. I accept it was a more informal part of the event but there was no sharp demarcation between the time in the Olympic bar and the time in the members bar. It was a continuation of the same event. The travel from the venue after the event ended was a necessary part of the event.

[40] In this case I am satisfied that:

[41] Given Mr Rogers relatively senior role, his gender, that the comments were made in a work context (a team building event paid for by the company), the absence of any provocation, and his relatively short period of service I am satisfied that the comments made constitute a valid reason for dismissal. The comments are extremely offensive and threatening. They are a threat by a senior male employee to commit a violent assault on a female colleague. In my view it is totally irrelevant as to whether or not there is any basis for the suggestion that Ms Farrelly had allowed another employee to touch her earlier in the evening; there is absolutely no basis for Mr Rogers to threaten to assault Ms Farrelly.

[42] In these circumstances I do not consider it necessary to consider the other alleged misconduct. It is sufficient to find that the conduct of Mr Rogers in making the offensive comment to Ms Farrelly when leaving a work team building event is a valid reason for dismissal when considered in the context of Mr Rogers’ relatively senior role, his relatively short period of service and the absence of provocation. This is also the case because the comments were both offensive and threatening and could reasonably be expected to cause considerable embarrassment and distress and did cause such embarrassment and distress.

[43] That said, I am satisfied that the correspondence concerning the provision of benefits to Mr Rogers during the period of his proposed overseas holiday in return for space and positive coverage in the magazine is a clear breach of Allianz’s code of ethics and also constitutes serious misconduct. The instructions given by Mr Beattie that promises of editorial space should not be made without prior approval and that Mr Beattie should be copied into all communications with third parties which involved discussion about editorial space were reasonable management instructions. The fact that some of the personal benefits had not been locked in is beside the point – seeking such benefits is clearly unethical in the absence of prior management approval. If it was necessary to consider this matter I would find that it was a valid reason for termination of employment.

Were there other factors which impact on the fairness of the dismissal?

[44] I have earlier dealt with the issues of procedural fairness. For the reasons given earlier and given the uncontested facts of this matter the factors in Section 387(b) and (c) stand in favour of a finding that the dismissal was fair. The factors in Section 387(d), (e), (f) and (g) are neutral factors. In respect to the procedural fairness issues raised under Section 387(h) I have found that the short period of notice given to Mr Rogers prior to the show cause meeting did not result in unfairness in the circumstances of this case

[45] In respect to the other matters raised in respect to Section 387(h) I have found that there was no inconsistency in respect to treatment relating to ethical issues and purchasing. The circumstances of the matters raised by Mr Rogers as illustrating alleged inconsistency concerning ethical conduct and the matters concerning Mr Rogers seeking personal benefits during a period of annual leave are completely different. I found the evidence of the Allianz employee relations manager, Ms Thomas, concerning the code of ethics highly credible.
[46] For the reasons discussed earlier I consider that dismissal was a proportionate response to the 8 July 2016 conduct having regard to the length of Mr Rogers’ service, the seniority of his position and the serious nature of his conduct.

[47] The final matter to be considered is the allegation of bullying. Mr Rogers accepts that he never raised a bullying complaint and that he never used the word bullying prior to the show cause meeting on 8 August 2016.

[48] Mr Rogers did raise concerns about being ostracised by his colleagues and about comments being made about the way he dressed. He also raised concerns about being micro-managed by Mr Beattie and about the failure of the organisation to welcome and adopt his suggestions. He did raise some concerns during the course of his employment with Ms Robinson and I am satisfied by the evidence that these concerns were taken seriously and were responded to. Mr Rogers gave evidence that Mr McLean and Ms Te Maipi discussed the issues with him and were supportive and made positive suggestions. I accept that some inappropriate comments may have been made to Mr Rogers and also that some of his colleagues may have been less than welcoming. However, I am satisfied that others, particularly Ms Farrelly, made an effort to be welcoming and inclusive. I am not satisfied that the conduct of others towards Mr Rogers in any way reduces the seriousness of his conduct towards Ms Farrelly on 8 July 2016.

Was the dismissal unfair?

[49] For these reasons, taking into account all of the factors listed in Section 387 of the Act I am satisfied that the dismissal was fair. The application is dismissed and an Order to that effect is published separately.



Mr G Rogers represented himself.

Mr K Brotherson appeared for the Respondent.

Hearing details:



January 16, 17 and 18

 1   (1998) Q9292 (Rose).

 2   PR971685.

 3   [2015] FWC 3156.

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