DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Steve Nash
v
Bacchus Marsh Coaches Pty Ltd T/A Bacchus Marsh Coaches
(U2017/9259)

Application for an unfair dismissal remedy – jurisdictional objection – resignation – merits - dismissal not unfair – application dismissed

[1] This decision concerns an application by Mr Steve Nash for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act).

[2] Mr Nash was employed by Bacchus Marsh Coaches Pty Ltd as a casual school bus driver from 18 August 2014 until August 2017. He claims that he was dismissed by the company on 17 August 2017 in connection with allegations about his conduct. He seeks an order for compensation.

[3] The company objects to the application on the ground that Mr Nash resigned from his employment on 3 August 2017 in the presence of two managers. It contends alternatively that if it did terminate Mr Nash’s employment, the dismissal was not unfair.

[4] Section 396 of the Act requires that the Commission decide four matters before considering the merits of Mr Nash’s unfair dismissal application. I am satisfied of the following matters. First, Mr Nash was a person protected from unfair dismissal, as he had completed the minimum employment period 1 and earned less than the high income threshold. Secondly, the alleged dismissal was not consistent with the small business code; the employer is not a small business, and the code is not presently relevant. Thirdly, the alleged dismissal was not a case of genuine redundancy.

[5] The fourth preliminary matter that I must decide is whether Mr Nash made his unfair dismissal application within the period prescribed by s.394(2), namely 21 days after the dismissal took effect, or such further period as the Commission has allowed (s.396(a)). The question of whether an employee has been dismissed is not separately identified in s.396 as one of the matters that the Commission must determine before considering the merits of an application. However, in order to decide whether an application has been made within the required period after the dismissal took effect, it is necessary to determine whether there was a dismissal at all.

[6] Mr Nash claims to have been dismissed on 17 August 2017; if he was in fact dismissed on this date, his application was made in time. However, the company contends that it did not dismiss Mr Nash. This is a jurisdictional objection, and the next matter that I must determine. If Mr Nash resigned from his employment, and was not terminated on the employer’s initiative, he was not ‘dismissed’, and could not have been unfairly dismissed (sections 386(1) and 385(a)).

[7] The company’s jurisdictional objection was heard before me together with the merits of the application on 4 December 2017. Mr Nash gave evidence in support of his application. Mr Nickels, the company’s General Manager, and Mr McKenzie, the Assistant General Manager, gave evidence for the company. Statutory declarations were submitted by the company from its operations managers, Mr Julian Leonardelli and Mr John Considine. They were not called to give evidence in the proceedings.

Background and evidence

[8] Mr Nash worked at the company’s Bacchus Marsh depot, driving a bus exclusively servicing a local school. His employment was covered by the Bacchus Marsh Coaches Enterprise Agreement 2016 (Agreement). On 31 July 2017, he received a telephone call from Mr Leonardelli, who asked him whether he had taken photographs of school children on the bus. Mr Nash replied that he had. Mr Leonardelli told him to go and see Mr McKenzie at the depot.

[9] Mr Nash gave evidence that he proceeded to see Mr McKenzie at the depot that morning. Mr McKenzie asked him why he had taken photographs of school children. Mr Nash recounted that some days earlier, one of the girls on his bus run had been upset by another student and was crying hysterically, and that he had taken her to the school infirmary. Some days later, he had seen the girl and two friends on the bus and taken pictures of them to show his wife. One of the children told Mr Nash that he was not allowed to take photographs of them. Mr Nash replied that he had not known that, and deleted the photographs.

[10] Mr Nash’s evidence was that he then told Mr McKenzie that, if he had caused a problem for the school, he would resign, and that Mr McKenzie replied with words to the effect of ‘that’s a bit much.’ 2 Mr Nash had then returned to work.

[11] Mr McKenzie’s evidence was that on 1 August 2017, he received a written complaint from the school, stating that a parent and some students had raised concerns about Mr Nash taking photographs of students on the bus. The written complaint followed an earlier telephone call from the school to the company’s bus coordinator, reporting that Mr Nash had taken photographs of children, and that he had allegedly called a nine year old girl a ‘troll’. 3

[12] Mr McKenzie gave evidence that he had a brief discussion with Mr Nash on 2 August 2017 about the issues raised by the school, during which he arranged for a meeting with Mr Nash to occur the following day. 4 Mr McKenzie did not recall having a discussion with Mr Nash on 31 July 2017.

[13] Mr McKenzie and Mr Nickels gave evidence that they discussed the complaints from the school and decided to stand down Mr Nash pending an investigation. They prepared a stand down letter to give to Mr Nash at the meeting the next day.

The meeting of 3 August 2017

[14] On the afternoon of 3 August 2017, a meeting took place at the Bacchus Marsh depot between Mr Nash, Mr Nickels and Mr McKenzie. Exactly what was said at this meeting is contested, and central to the company’s jurisdictional objection. Mr Nickels and Mr McKenzie maintain that Mr Nash resigned at this meeting. Mr Nash denies this.

[15] Mr Nickels’ evidence was that he told Mr Nash about the school’s complaints that he had called a girl a ‘troll’ and taken photographs of children. 5 Mr Nickels told Mr Nash that he would be stood down on pay while the matter was investigated. At this point, Mr Nash became agitated and stated that he would rather resign. Mr Nickels told Mr Nash that the company did not want him to resign, but that the matter had to be investigated. Mr Nash said he did not want his name ‘dragged through the mud’. Mr Nickels said that if Mr Nash resigned verbally again he would have it recorded in writing by Mr McKenzie. Mr Nash then said that he resigned and left the office.6

[16] Under cross-examination, Mr Nickels was asked what precise words Mr Nash used to indicate that he resigned. Mr Nickels replied that Mr Nash said:

‘I'm not putting up with this fucking shit, I'm not going to have my name - I've been a union representative for" (I'm not sure of the amount of years he said) "and I'm not going to end my career by this fucking shit. I'm resigning.’ 7

[17] Mr McKenzie’s evidence was consistent with that of Mr Nickels. He gave evidence that Mr Nickels told Mr Nash that he would be stood down on pay while the complaints were investigated, 8 and that Mr Nash said he did not want his good name dragged ‘through the shit’ and that he would rather resign.9 Mr Nickels told Mr Nash that the company did not want to dismiss him. Mr Nash said for a final time that he resigned, picked up his keys and walked out of the room.10 Mr Nickels asked him to write down that Mr Nash had resigned, and he did so.

[18] Mr McKenzie appended one page of typed written notes of this meeting to his witness statement. 11 They are consistent with Mr McKenzie’s witness statement and his oral evidence. However, they were the subject of some controversy. Pursuant to an order to produce that was sought by Mr Nash’s representative, the original hand-written diary notes of Mr McKenzie were provided to the Commission shortly before the hearing, and tendered in evidence. The written notes are briefer than the typed notes. They record the allegation that Mr Nash called a nine year old girl a ‘troll’. They further record the following:

‘-Dave stood down only until conclusion of investigation.

Steve’s answer - I’ll resign instead.

Dave said again he is not dismissing Steve, he is standing Steve down.

-Steve gave us impression that he was going to resign and would put it in writing,

-Walked out before stand down letter presented.

Employment start - 13 8 14.

Employment finish - 31. 8. 17’

[19] Mr Nash relied on the sentence ‘Steve gave us the impression that he was going to resign and would put it in writing’ as evidence that he did not in fact resign at the meeting. Read in isolation, this sentence suggests that Mr Nash would resign in the future, but did not resign at the meeting. However, this sentence must be considered in the context of the note as a whole and the entirety of the broader evidence. Under cross-examination, it was put to Mr McKenzie that he knew that Mr Nash had not resigned at the meeting. Mr McKenzie denied this, replying that he was under the impression Mr Nash had resigned. Mr McKenzie was asked what gave him that impression, and he answered that Mr Nash had said ‘I’d rather resign’, and walked out. 12 Mr McKenzie was asked what gave him the impression that Mr Nash would resign in writing; he replied that the company asked for the resignation to be put in writing.13 It was put to Mr McKenzie that the company was waiting for a written resignation; he responded that the company asked for the resignation in writing but never received it. Asked why the company did not follow up and ask for confirmation in writing of the resignation, Mr McKenzie replied that Mr Nash had resigned in front of two senior managers, and that they took this as his final word.14

[20] Mr McKenzie was also asked what accounted for the differences between his original handwritten notes and his typed notes attached to his statement. He openly that the former were scribbled down as the conversation was occurring; the latter were prepared later, once it was known that the company was facing an unfair dismissal application. I note that no attempt was made to hide the fact that the typed notes were prepared later; they bear the date 16 October 2017, well after the unfair dismissal application was made.

[21] Mr Nash’s evidence of what occurred at the meeting of 3 August 2017 differs from that of Mr Nickels and Mr McKenzie in a number of important respects. Mr Nash agreed that Mr Nickels told him that he would be stood down while the complaints were investigated. However, he denied that Mr Nickels told him that he would be stood down on pay. Mr Nash said that his understanding was that he would be stood down without pay, because clause 32 of the Agreement allowed for this during the first ten days of an investigation. 15

[22] Mr Nash gave evidence that during the meeting on 3 August 2017, Mr McKenzie said to Mr Nickels ‘Steve was going to resign’, apparently in reference to Mr Nash’s earlier offer to resign, and that Mr Nickels said ‘Well, we would need that in writing.’ 16 Mr Nash’s evidence was that he then said ‘I’ve got pride in myself and it’s not worth a bus driving job. You investigate it.’17 There was then a discussion about what if any law prevented Mr Nash from taking pictures of children. Mr Nash’s evidence was that after that he had nothing more to say, so he shook Mr Nickels’ hand and walked out.

[23] Mr Nash’s evidence was that at no stage did he resign from his employment or say any words to this effect, 18 and that he did not put anything in writing as he did not intend to resign. He said that his understanding was that a resignation was not effective unless it was in writing. He was asked in cross-examination whether it was possible that Mr Nickels and Mr McKenzie understood that he had resigned. Mr Nash replied ‘no’.19

The stand down letter

[24] According to Mr Nickels and Mr McKenzie, they prepared a stand down letter to give to Mr Nash at the meeting of 3 August 2017, but Mr Nash resigned and left the meeting, and the letter was therefore not given to him. Mr Nash’s representative sought to cast some doubt on when the stand down letter was created. The original letter was emailed to Mr Nash pursuant to the notice to produce referred to above. An internal email from a ‘service desk analyst’ employed by Mr Nash’s lawyers was tendered at the hearing. This indicated that the stand down letter was created on 3 August 2017 at 2.54pm, which is shortly after the conclusion of the meeting that occurred that day.

[25] However, the metadata referred to in the email refers to ‘revision number 2’. It also shows that it was printed on 29 May 2017, well before the events relevant to this matter. The analyst who identified the metadata did not attend to give evidence. In my view the metadata does not establish that the stand down letter was created after the meeting. In any event, all three participants in the meeting of 3 August 2017 agree that the company was going to stand down Mr Nash in order to investigate the allegations against him, and that Mr Nickels told Mr Nash this at the meeting (although Mr Nash contests that he was told it would be on full pay).

4 August 2017: final pay

[26] Mr McKenzie said that after Mr Nash left the meeting room on 3 August 2017, he had no further contact with him until 17 August 2017, when he rang Mr Nash to ask him to return his keys and uniform.

[27] Mr McKenzie’s evidence was that on 4 August 2017, the company issued Mr Nash his pay for the week. 20 This was Mr Nash’s final payment from the company.

The events of 8 August 2017

[28] On 8 August 2017, Mr Nash sent an email message to Mr McKenzie about a recollection of an incident on the bus, when he had told several girls to stop jumping on the seats. Mr Nash said in his message that he believed this might be relevant to the allegation that he had called a girl a ‘troll’. The email is attached to Mr Nash’s statement. It refers to the incident occurring ‘a few days before I was stood down’, and ends with a request that Mr McKenzie pass the message on to the school. Mr Nash says that this email shows that he had not resigned, and that he believed he had been stood down and the investigation was still underway.

[29] Mr Nash gave evidence that on 8 August 2017, he received a telephone call from Mr Considine, who said that Mr McKenzie was asking whether he had a resignation letter. Mr Nash said no, and that he was not going to provide one. Mr Considine said that he did not know what this matter was about. I note that Mr Considine filed a statutory declaration in this matter, stating that since 3 August 2017, he had no contact with Mr Nash. However, Mr Considine did not attend the proceedings to give evidence.

The events of 16 and 17 August 2017

[30] At around 9.00am on 16 August 2017, Mr Nash went to the school to try and arrange a meeting with the principal ‘to find out what was going on’. 21 A receptionist asked him to wait. He left his number and two hours later the deputy principal called him. According to Mr Nash, he told the deputy principal that he had been stood down and asked him whether he knew what was going on. The deputy principal said he had nothing to do with the matter and that Mr Nash would have to contact the company.

[31] The following day, 17 August 2017, Mr McKenzie telephoned Mr Nash and requested that he return his uniform and keys. According to Mr Nash, he said to Mr McKenzie ‘Well it sounds like I’ve got the sack, I’ll need a separation certificate’, to which Mr McKenzie replied ‘OK’. 22

Findings

[32] The company’s jurisdictional objection to Mr Nash’s application rests on its contention that Mr Nash resigned at the meeting of 3 August 2017. There is a conflict on the evidence between the accounts of Mr Nickels and Mr McKenzie on the one hand, and Mr Nash on the other.

[33] In relation to the question of what was said during the meeting of 3 August 2017, and in particular whether Mr Nash stated during the meeting that he resigned, I prefer and accept the evidence of Mr Nickels and Mr McKenzie, for the following reasons.

[34] First, I found Mr Nickels to be a credible witness. His evidence was clear, spontaneous and compelling. He made appropriate concessions, and acknowledged that he could not recount all of what Mr Nash said during the meeting. However, he was clear that Mr Nash said that he resigned.

[35] Secondly, I found Mr McKenzie to be a credible witness. In my view, he answered questions directly and candidly, to the best of his recollection. His recollection was not perfect. He acknowledged that he could not recall speaking to Mr Nash on 31 July 2017 about the photographing of children. 23 He could not recall whether during the meeting of 3 August 2017 he had said to Mr Nickels ‘Steve was going to resign.’ However, Mr McKenzie was clear that Mr Nash said in the meeting that he did not want his name ‘dragged through the mud’, that he ‘was not putting up with this shit’, and that Mr Nash said that he resigned.

[36] In relation to Mr McKenzie’s hand written note of the meeting of 3 August 2017, I accept Mr McKenzie’s evidence that the notes (as they appear) were scribbled down as the conversation was occurring. They were made contemporaneously with the unfolding discussion; they are not a summary of what occurred at the meeting, made after the event. The sentence ‘Steve gave us the impression he was going to resign’ should not be read in isolation. This is a note, made at a point in time during the conversation. I accept Mr McKenzie’s evidence that his impression from the meeting was that Mr Nash had resigned at the meeting. I also accept Mr McKenzie’s evidence that, although the company requested Mr Nash to put his resignation in writing, he considered that Mr Nash had resigned in front of two senior managers and that he and Mr Nickels took this as his final word. Mr McKenzie’s hand written notes also stated ‘Employment finish 31 August 2017’. At the hearing I asked Mr McKenzie what he meant by this reference. He said that it was his reckoning of four weeks’ notice of termination that Mr Nash should provide to the company, being 4 weeks from the date of the meeting. In fact, because Mr Nash was a casual employee, he was not required to provide notice of termination. I return to this further below. However, the significance of the reference to a termination date is that it is consistent with Mr McKenzie’s evidence that he understood Mr Nash to have resigned from his employment at the meeting on 3 August 2017.

[37] Thirdly, I find improbable Mr Nash’s evidence that during the meeting he did not say any words to the effect that he resigned. 24 Mr Nash made no concession about using the word ‘resign’, or any of its grammatical formulations, cognates or synonyms, which might have explained a possible misunderstanding on the part of Mr Nickels and Mr McKenzie. Further, Mr Nash completely discounted the possibility that Mr Nickels and Mr McKenzie had misunderstood him.25 His refusal to acknowledge the possibility of a misunderstanding casts doubt on the objectivity and reliability of Mr Nash’s evidence of what occurred at the meeting of 3 August 2017.

[38] Fourthly, there is no reason why Mr Nickels and Mr McKenzie should give false or misleading evidence about what Mr Nash said at the meeting. They both acknowledged openly that he had been a good employee. They did not want him to resign. There was no evidence or suggestion of any personal animus or other reason to motivate these witnesses to say that Mr Nash had resigned if he had not done so. It appears that Mr Nash was held in high regard at the company. On Mr Nash’s own evidence, Mr McKenzie dissuaded him from resigning during a conversation on 31 July 2017.

[39] I note that Mr Nash acknowledged that he had been emotional during the meeting 26 and it is possible that his recollection of what occurred was affected by this. In my judgment, Mr Nash was also highly indignant about the allegations that the school had raised against him. This may have affected his conduct and choice of words at the meeting.

[40] Fifthly, Mr Nash’s evidence was that during the meeting of 3 August 2017 he said ‘it’s not worth a bus driver’s job’. Mr Nash was asked in cross-examination what he meant by ‘it’. His answer was evasive. Asked if ‘it’ meant ‘going through an investigation’, he said ‘no’. Asked if ‘it’ meant something else, he again said ‘no’. In my view, it is likely that Mr Nash did mean that it was not worth going through an investigation and dragging his name through the mud for a bus driving job; and so he would leave the job, and resign.

[41] I find that Mr Nash told Mr Nickels and Mr McKenzie at the meeting on 3 August 2017 that he was resigning, in a context that reasonably conveyed to them that he was resigning at the meeting.

[42] In my opinion, Mr Nash’s conduct subsequent to the meeting of 3 August 2017 is consistent with his having resigned during the meeting.

[43] Mr Nash received his final payment on 4 August 2017. By 17 August 2017, when Mr Nash says his dismissal occurred, it had been 13 days since he had received any pay. During his period of casual service with the company, Mr Nash had been paid weekly. Had he still been employed by the company, he would have been paid on 11 August 2017. However, Mr Nash did not query why he had not been paid. His explanation for this was that he thought he had been suspended without pay, because the enterprise agreement allows for ten days’ unpaid suspension. I do not accept this explanation. Clause 32 of the Agreement in fact states that suspension without pay is an alternative to termination, and that it is not intended to be used where the employer is actively investigating a matter. 27 I note that, in the course of his evidence Mr Nash referred to his experience as a former union official, and showed familiarity with the terms of the Agreement.28 Mr Nash said that he was not told the suspension would be paid. However, both company witnesses gave clear and credible evidence that Mr Nickels did tell Mr Nash that his suspension would be paid. I accept their evidence, and reject Mr Nash’s evidence to the contrary. The fact that Mr Nash did not make any inquiry into why he was not being paid is compatible with a conclusion that Mr Nash had resigned on 3 August 2017. He did not need to ask the company why he was not being paid, because he knew the reason: he had resigned.

[44] In my view, a further matter which is consistent with Mr Nash’s understanding that he had resigned from his employment is his conduct in visiting the school on 16 August 2017. Mr Nash’s evidence was that he wanted to find out, from the school, ‘what was going on’. If he believed the employer was conducting an investigation, he would have contacted the company rather than the school. Mr Nash’s visit to the school is not the action of an employee who has been stood down pending an investigation that is being undertaken by his employer. In my opinion, it is rather the action of a person who has left employment with the company, and no longer is concerned with the disciplinary consequences that could potentially follow from seeking to engage the school directly about the concerns it and its students had raised with the company about his conduct.

[45] Finally, when Mr McKenzie called Mr Nash on 17 August 2017 to request the return of keys and uniform, Mr Nash did not ask why he should return company property, or why (to use his words) he had been ‘sacked’. On Mr Nash’s evidence, he believed he had been stood down pending the outcome of an investigation. However, he did not ask Mr McKenzie what the outcome of the investigation was; whether the company had found one or both of the complaints to be substantiated, and why.

[46] I consider that Mr Nash’s statement that ‘it sounds like I’ve got the sack’ reflected a change of heart on his part since the meeting of 3 August 2017; it is not consistent with a person awaiting the outcome of an investigation being undertaken by his employer. Further, Mr McKenzie was under no obligation to contradict Mr Nash by saying ‘no, you resigned’, or otherwise to enter into a discussion with Mr Nash about his resignation.

[47] I note that in his message to Mr McKenzie on 8 August 2017, Mr Nash refers to himself as having been ‘stood down’. On one view this could be seen as consistent with a subjectively held view on Mr Nash’s part that he remained employed. However, in my opinion it is more likely to be a self-serving statement following a change of heart by Mr Nash in relation to his resignation. Further, Mr Nash’s request to pass the message of his recollection on to the school is consistent with Mr Nash wanting to clear his name; it was a submission to the school. If Mr Nash had really thought he was suspended without pay and that an investigation was being conducted, he would have directed the submission only to the company, as an employer conducting an investigation into his conduct, not to the school. In any event, the email of 8 August 2017 does not change my finding that Mr Nash resigned at the meeting of 3 August 2017.

[48] In relation to the question of Mr Considine’s telephone call to Mr Nash on 8 August 2017, Mr Nash’s representative invited me to draw an adverse inference from the failure of the company to call Mr Considine to give evidence, in accordance with the rule in Jones v Dunkel. 29 The rule permits an inference that untendered evidence would not have helped the party who failed to tender it.30 The Commission is not required to draw an adverse inference, but may do so in relevant circumstances. I do not consider it appropriate to do so in the present case. I simply accept the evidence of Mr Nash that Mr Considine called him to ask whether he would be submitting a resignation letter. Mr Nash’s evidence is to be preferred on this point to that of a witness who did not attend the hearing and was not subjected to cross-examination. I note Mr Nash’s evidence that he believed Mr Considine had simply forgotten about the call; he did not believe Mr Considine was lying in his statutory declaration in stating that he had no contact with Mr Nash after 3 August 2017.

[49] It can be accepted that Mr Considine, an operations manager of the company, wanted to know if Mr Nash would be submitting a resignation letter. But that does not mean that the company believed that a resignation letter was needed to formalise or confirm that Mr Nash had resigned. It is not surprising that the company might inquire whether Mr Nash would be sending it a letter confirming his resignation. Such a letter might have avoided the evidentiary and jurisdictional contest that has arisen in this matter. In the circumstances of the present case, Mr Considine’s call to Mr Nash does not in my view call into question Mr Nash’s resignation.

Conclusion in relation to the alleged dismissal

[50] The company’s jurisdictional objection to Mr Nash’s unfair dismissal application is that, because he resigned, Mr Nash was not dismissed within the meaning of s.386(1) of the Act. There are two limbs to this provision.

[51] First, a person has been dismissed if his or her employment has been terminated on the employer’s initiative (s.386(1)(a)). This requires consideration of whether an act of the employer resulted directly or consequentially in the termination of the employment relationship, not just the contract of employment. 31 All of the circumstances are to be taken into account.

[52] I have found that Mr Nash told Mr Nickels and Mr McKenzie at the meeting on 3 August 2017 that he was resigning. I consider that Mr Nash’s conduct following the meeting of 3 August was consistent with his having resigned. On 17 August 2017 Mr McKenzie contacted Mr Nash and requested that he return company property. Given Mr Nash’s resignation, Mr McKenzie’s request was not an act of the employer resulting in the termination of the employment relationship. The employment relationship had already been brought to an end by Mr Nash’s resignation during the meeting of 3 August 2017.

[53] It is relevant to take into consideration Mr Nash’s contract, and the industrial instruments that governed his employment.

[54] Mr Nash’s offer of employment stated that he ‘may resign by providing written notice in accordance with the Transport Workers (Passenger Vehicles) Award 2002’ (2002 Award). The 2002 Award is incorporated into the Agreement in Schedule B, and provides that notice of termination by an employee is the same as that required by the employer; but that notice is not required in respect of casual employees. 32 Accordingly, Mr Nash’s contract did not require him to resign in writing. The company asked him to provide his resignation in writing, but did not insist on it.

[55] I note that, as a casual employee, there was strictly speaking no need for Mr Nash to resign, as at common law, each engagement stands alone; he could simply decline further engagements. This is effectively what his resignation conveyed. It also brought the employment relationship to an end. Mr Nash was not required to give notice of termination. Despite Mr McKenzie’s hand-written note concerning a four week notice period, the company did not seek to enforce any such notice period against him, or seek payment in lieu of notice, nor would there have been any proper basis for it to do so.

[56] The second limb of s.386(1) provides that a dismissal occurs where a person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. There is no basis in the evidence to conclude that Mr Nash was forced to resign. Mr Nickels’ evidence, which I accept, was that he told Mr Nash that the company did not want him to resign 33 and that it proposed to stand him down on pay while the matter was investigated. It was contended in Mr Nash’s written argument, alternatively, that Mr Nash resigned in the heat of the moment. But under cross-examination, Mr Nash specifically rejected this proposition.34 There was no element of compulsion in Mr Nash’s resignation.

[57] Based on my factual findings, and all of the circumstances, I have concluded that Mr Nash was not dismissed for the purposes of s.386(1) of the Act.

[58] However, if I am wrong in this conclusion, I set out below my consideration of whether the dismissal of Mr Nash was unfair. The counterfactual proceeds on the basis that, as contended by Mr Nash, the company terminated his employment on 17 August 2017 when Mr McKenzie requested him to return company property. But for Mr Nash’s resignation, this would in my view have been an act of the employer that resulted directly or consequentially in the termination of the employment relationship, amounting to termination on the employer’s initiative.

Merits

[59] For a dismissal to be unfair, the Commission must be satisfied that the dismissal was harsh, unjust or unreasonable (s.385(b)). In considering whether it is so satisfied, the Commission must take into account the matters specified in s.387. I address each of these matters in turn below.

Valid reason

[60] The Act requires consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct. A valid reason is one that is ‘sound, defensible and well-founded.’ 35 The question the Commission must address is whether there was a valid reason, in the sense both that it was a good or sufficient reason, and a substantiated reason. It is well-established that a valid reason need not be one that was given to the employee at the time of dismissal.

[61] The company contended that, if it was found to have dismissed Mr Nash for the purposes of s.386(1), there was a valid reason for doing so constituted by Mr Nash’s unauthorised photographing of children on the bus. Mr Nash admitted taking photographs, but contended that he did so innocently, and that he did not contravene any law or policy. 36

[62] Mr Nash’s letter of offer states that the company expects ‘strict adherence by you to all Donic Group and Company policies’. Further, clause 34.1 of the Agreement provides that all employees are ‘required to comply with the policies and procedures of the Employer as varied and communicated to employees from time to time.’ According to the company, one such policy was the School Bus Procedure, which stated, at clause 4.1, that drivers must not take photos or videos of students.’ 37 The policy was put into evidence through Mr Nickel’s statement. However, this document bears the date 23 August 2017, which is after Mr Nash’s employment with the company came to an end. The company could not point to a policy in force at the time when Mr Nash took the photographs of the children. Mr Nash denied knowledge of any such policy.

[63] Regardless of the application of company policy, taking photographs of children who are under one’s professional care is highly imprudent. Under cross-examination, Mr Nash was asked whether in his opinion it was a serious issue to take a photograph of a child in the course of his employment without their permission. He acknowledged that without permission, it was serious. 38 Further, according to Mr Nash, when one of the children told him that he was not allowed to take photographs, he replied that he had not known this, and deleted the photographs. Evidently Mr Nash readily accepted the child’s statement that photographs were not allowed.

[64] However, I accept Mr Nash’s evidence that he did not know that he was not supposed to take photographs, and that he did so innocently, to show his wife a picture of a child he had helped. In the circumstances, I do not consider this conduct to constitute a valid reason for dismissal.

[65] The company further contended that a valid reason for dismissal is found in the allegation that Mr Nash called a nine year old girl a ‘troll’. Had it been proved, it most certainly would have been a valid reason for dismissal. However, this allegation was not fully investigated. It was not substantiated. Mr Nash strongly denied it. Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities, informed by the principles in Briginshaw. 39 In my view, the bare allegation that Mr Nash called a girl a ‘troll’ is not a valid reason for dismissal.

[66] However, in my opinion, Mr Nash’s conduct in visiting the school on 16 August 2017 is a most serious matter. The visit occurred at about 9.00am, a Wednesday during the school term. He asked to speak to the principal ‘to find out what was going on’. 40 Mr Nash was, on his argument, still an employee of the company, and was awaiting the outcome of an investigation into complaints from the school that he improperly took photographs of children on his bus, and called a nine year old girl a troll. In my opinion, his visit to the school was highly inappropriate and had the potential to put at risk the company’s relationship with the school. Further, by visiting the school during school hours, it is possible that Mr Nash could have come into contact with one of the young children who had raised the concerns. This had the potential to cause embarrassment and upset to the children in question. Mr Nash’s conduct on 16 August 2017 entailed a gross error of judgment. In my opinion, it constituted a sound, defensible, well-founded and valid reason to dismiss him.

Notification of the reasons for dismissal and opportunity to respond (s.387(b) and (c))

[67] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to capacity or conduct.

[68] Mr Nash was notified of the complaints about him taking photographs and calling a girl a troll. He was not notified of these being reasons for dismissal. In any event I have found that they were not valid reasons for dismissal, because the former was innocent, and the second unsubstantiated. Mr Nash was not notified that his visit to the school constituted a reason for dismissal.

[69] Mr Nash was afforded an opportunity to respond to the allegations concerning the photographs and the alleged ‘troll’ comment. However, I take note of the fact that no full investigation was undertaken in relation to the allegations raised by the school and Mr Nash’s response to them, which adversely affected the quality of his opportunity to respond. Further, Mr Nash was not afforded an opportunity to respond to the reason which in my view constituted the valid reason for dismissal, namely his visit to the school on 16 August 2017.

[70] These considerations tell in favour of a conclusion that the dismissal was unfair.

Refusal to allow a support person present (s.387(d))

[71] It was contended by Mr Nash that he was not afforded the opportunity to have a support person present to assist in discussions relating to dismissal. However, s.387 makes no reference to affording employees such an opportunity; rather, s.387(d) directs the Commission’s attention to whether there was any unreasonable refusal by the employer to allow a support person to be present to assist in such discussions.

[72] Mr Nickels gave evidence that he asked Mr Nash whether he wanted a support person. Mr Nash denied that he was offered a support person. However, he did not contend that Mr Nickels or Mr McKenzie refused to allow him to have a support person present. 41

[73] The company did not refuse to allow Mr Nash to have a support person present, unreasonably or otherwise.

Warning about unsatisfactory performance before the dismissal (s.387(e))

[74] If a dismissal relates to unsatisfactory performance, s.387 requires the Commission to consider whether the person has been warned about the unsatisfactory performance prior to dismissal. There is not always a clear line between misconduct and poor performance; however in the present matter I consider that the reasons for dismissal, including the reason I have found to be a valid reason, relate to conduct, not performance. It was not necessary for Mr Nash to be warned about these matters.

Size of the enterprise, dedicated human resources specialist (s.387(f) and (g))

[75] The Commission is required to consider the degree to which the size of the employer’s enterprise, and the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss.387(f) and (g)).

[76] The company is a reasonably large organisation. It did not contend that its size impacted on the procedures to be followed in effecting the dismissal. It acknowledges that it had designated human resources personnel, namely the two managers involved in the matter who gave evidence in the proceedings. In my view, these are neutral considerations in the analysis of whether the dismissal was unfair.

Any other matters the Commission considers relevant (s.387(h))

[77] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it considers relevant.

[78] The proportionality of the dismissal to the conduct that is the subject of a valid reason is a matter to be considered in connection with s.387(h). I consider that the gravity of Mr Nash’s conduct in visiting the school was such as to make dismissal a proportionate response.

[79] I take note of Mr Nash’s submission that the loss of his employment has resulted in financial and emotional stress. I also note that Mr Nash had a good record of employment with the company over the three year period he worked for it.

[80] However, taking into account all of the circumstances and the considerations in s.387, I consider that, if Mr Nash was dismissed at the initiative of the company, his dismissal was not harsh, unjust or unreasonable and that accordingly his dismissal was not unfair.

Conclusion

[81] I have concluded that Mr Nash was not dismissed for the purposes of s.386(1) of the Act, and that accordingly he was not unfairly dismissed (s.385). Mr Nash resigned from his employment at the meeting of 3 August 2017.

[82] Even if Mr Nash was dismissed by the company on 17 August 2017, I consider that his dismissal was not harsh, unjust or unreasonable, and that accordingly his dismissal was not unfair.

[83] The application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Brendan Johnson for the Applicant

Mr Samuel Burt of counsel for Bacchus Marsh Coaches Pty Ltd

Hearing details:

2017

Melbourne

4 December 2017

 1   See s.382(a). It was not in dispute, and I am satisfied, that Mr Nash had worked as a casual on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis, for the purposes of s384. His service as a casual therefore counts for the purposes of the minimum period of employment.

 2   Witness statement of Steve Nash, paragraph 8

 3   PN147, 148, 514-515

 4   Transcript at PN499-500

 5   PN116

 6   Witness statement of David Nickels, paragraph 5

 7   PN319

 8   Witness statement of Mark McKenzie, paragraph 6

 9   PN531

 10   PN684

 11   MM3 to the witness statement of Mark McKenzie

 12   PN660, 661, 669

 13   PN636, 670

 14   PN638

 15   PN876-877

 16   Witness statement of Steve Nash paragraph 10

 17   Witness statement of Steve Nash, paragraph 10

 18   Witness statement of Steve Nash, paragraph 10

 19   PN846

 20   Witness statement of Mark McKenzie paragraph 7, exhibit MM4

 21   Witness statement of Steve Nash, paragraph 14

 22   PN557-560

 23   It is possible that the conversation that Mr Nash said occurred on that day is that same one that Mr McKenzie said he had with Mr Nash on 2 August 2017. I do not consider the date of this discussion to be significant, nor is it necessary to record a finding in relation to it.

 24   Witness statement of Steve Nash, paragraph 10

 25   PN783 and 846

 26   PN902

 27   See clauses 32.1 and 32.4

 28   PN748-749; PN873-877

 29   Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

 30   Tamayo v Alsco Linen Service Pty Ltd, Print 1859

 31   See Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645; Khayam v Navitas English Pty Ltd, [2017] FWCFB 5162

 32   See clauses 13.2.1, 13.1.5(e) of the 2002 Award, as incorporated into the Agreement

 33   Witness statement of David Nickels, paragraph 5

 34   PN902

 35   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 36   Applicant’s submissions; PN771

 37   Exhibit DN2 to the Witness statement of David Nickels

 38   PN840

 39   Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 363

 40   Witness statement of Steve Nash, paragraph 14

 41   PN851

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