[2018] FWC 3761 [Note: An appeal pursuant to s.604 (C2018/3906) was lodged against this decision and the order arising from this decision.] - refer to Full Bench decision dated 13 December 2018 [[2018] FWCFB 7566] for result of appeal.]
FAIR WORK COMMISSION

DECISION



Fair Work Act 2009
s.394—Unfair dismissal

Homer Abarra
v
Toyota Motor Corporation Australia Ltd
(U2016/2962)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 26 JUNE 2018

Application for relief from unfair dismissal.

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

[2] Mr Abarra commenced employment with Toyota Motor Corporation Australia Ltd (TMCA) (the Respondent) in 1993 and was dismissed from his employment with immediate effect on 3 June 2016. He was paid 5 weeks in lieu of notice. At the time of his dismissal Mr Abarra was working in the Paint Shop with TMCA as a Group Leader.

[3] On the day of his dismissal Mr Abarra was handed a termination letter which stated that he had unacceptably failed to perform his supervisory duties as a Group Leader in a consistent and fair manner across the Sealer Group in the Paint Shop, improperly exercised the power and authority held by him in his position by favouring certain team members over others because of his personal relationships with those team members, had fostered an exclusionary culture within the Paint Shop, and had engaged in conduct which breached TMCA Workplace Relationships Policy and Procedure and the Workplace Agreement.

[4] Mr Abarra made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Act for a remedy in respect of his dismissal by TMCA. He contends that his dismissal was unfair within the meaning of s.385(b) of the Act.

Proceedings and the evidence

[5] This matter was subject to a number of conciliations however remained unresolved. The matter was subsequently listed for arbitration.

[6] This application was heard together with matter number U2016/2952 and the evidence in the one was considered to be evidence in the other to the extent it was relevant. In addition to Mr Abarra twenty three witnesses gave evidence in relation to these matters. The following witnesses gave evidence on behalf of Mr Abarra;

[7] The following witnesses gave evidence on behalf of TMCA;

[8] There were a number of objections made during the hearing and I make some preliminary remarks about some of the evidence which was subject to objection in this matter. There was debate as to the admittance of the Confidential Disclosure Report 1 (Disclosure Report), Ms O’Brien QC’s Investigation report2 (Investigation Report) and the findings of Ms O’Brien QC3 annexed to Mr Abarra’s “show cause” letter of 12 April 2016,4 as to what use the Commission should make of those documents.

[9] Mr Abarra objected to the Investigation Report on the grounds that the report was hearsay, however did not object to it being admitted for non-hearsay purposes of proving that the investigation was conducted by Ms O’Brien QC and the report was provided to TMCA who relied on the report’s findings. 5 It is uncontroversial that TMCA relied on the O’Brien findings. TMCA submitted that the Commission is not bound by the rules of evidence and there is no unfairness to Mr Abarra by the admission into evidence of the Investigation Report and that it is open on the totality of the evidence before the Commission, even putting aside the Investigation Report, to essentially make its own findings as to the conduct of Mr Abarra.6

[10] Mr Abarra also objected to the use of the Disclosure Report on the grounds that it was hearsay evidence, primarily because the report is a record of a complaint made anonymously to the TMCA STOPLine. It was acknowledged that the Commission could have regard to the Disclosure Report if it was used to prove the complaint was made however the objection was pressed if it was being used to prove the truth of allegations set out in the report. 7

[11] I accepted the Disclosure Report and indicted that I would give consideration to the parties’ submissions as to the weight I should accord to it.

[12] Although the Evidence Act is not directly applicable to the Commission the rules of evidence are generally followed. 8 There is no automatic prohibition in proceedings before the Commission on the reliance of hearsay evidence.9 It may be relied on if it is shown to be probative of a fact in issue, however it would not ordinarily be relied on if it was to result in judicial unfairness to the opposing party.10

[13] The task of the Commission is to satisfy itself of the validity of the reason relied upon for the dismissal and its factual underpinning. In matters relating to misconduct it is for the Commission to make findings on the evidence provided as to whether, on the balance of probabilities, the conduct occurred.

[14] I have had regard to the objections and have only relied on the evidence in Ms O’Brien QC’s Investigation Report and findings and the Disclosure Report to a limited extent in making my factual findings. The Disclosure Report is only relevant in so far as it was the report that prompted TMCA’s investigation into the alleged misconduct of Mr Tainsh and Mr Abarra. Ms O’Brien QC’s Investigation Report and findings are only relevant to the extent in making my factual findings about TMCA’s reliance on those findings in forming their decision to dismiss Mr Abarra.

Preliminary Matters

[15] Mr Abarra filed his application within the time limit prescribed by s.394(2) of the Act.

[16] During his employment with TMCA, Mr Abarra was covered by the Toyota Motor Corporation Australia (TMCA) Workplace Agreement (Altona) 2015 (Workplace Agreement). Mr Abarra’s period of employment with TMCA was longer than the minimum employment period. Mr Abarra is protected from unfair dismissal under the Act.

[17] As at the time of Mr Abarra’s dismissal, TMCA had approximately 4,000 employees across Australia, therefore the Small Business Fair Dismissal Code does not apply.

[18] No issue of redundancy arose in the proceeding and I find that the dismissal was not a case of genuine redundancy.

[19] Therefore the issue for me to consider is whether Mr Abarra’s dismissal was harsh, unjust or unreasonable.

Background and Agreed Facts

[20] This application concerns Mr Abarra’s dismissal for misconduct. In summarising the background I also make reference to the agreed facts as submitted in a joint statement by the parties. 11

[21] There are five main divisions at TMCA’s Altona site, being Manufacturing, Quality, Production Control, Purchasing and Production Engineering. The Manufacturing division is divided into six departments, being Powertrain, Press, Unit, Weld, Paint, and Resin and Assembly. 12 In the Paint Shop there are seven stages of production, and each stage is separated into groups with each group supervised by a Group Leader. Each Group Leader is responsible for approximately 20 team members and reports directly to the General Foreperson.13

[22] Mr Abarra had been employed by TMCA for over 20 years and at the time of his dismissal he was the Sealer Group Leader in the Paint Shop working the afternoon shift. As Group Leader Mr Abarra reported directly to Mr Tainsh, General Foreperson. 14

[23] Group Leader responsibilities are outlined in the Workplace Agreement and are broadly stated as managing production schedules, quality assurance, cost reduction, maintenance, material management, standardised work, safety and setting team objectives. 15 According to the Workplace Agreement as a Group Leader Mr Abarra was responsible for implementing and promoting TMCA policies and procedures, maintaining attendance controls as per TMCA guidelines, developing constructive relationships with team members through regular effective communication and promoting fair treatment for all.16

[24] On 20 January 2016, Ms Slattery received an email notification through the TMCA STOPLine service that an anonymous whistle-blower complaint had been made raising a number of allegations regarding Mr Tainsh’s conduct towards a TFT. 17 Ms Slattery subsequently held meetings with some of the employees in the Paint Shop during which allegations regarding Mr Abarra’s conduct were made.18

[25] On 27 January 2016 Mr Abarra attended a meeting with Mr Kershaw and Ms Slattery. Mr Abarra did not have a support person present at this meeting. During the meeting Mr Abarra was advised TMCA had received a complaint regarding inappropriate behaviours and allegations had been made against him. 19 Mr Abarra was provided with two letters during this meeting. The first letter, titled ‘Notice of Suspension With Pay’, stated (amongst other things) the following;

“According to the information received by TMCA, the allegations can be broadly identified as follows:

● You have engaged in favouritism towards certain female team members on the Afternoon Shift in Paint Shop with whom you have had personal relations. It is alleged that, in exchange for sexual acts, you have favoured these team members (in conjunction with General Foreperson, Adrian Tainsh) by providing them with benefits, such as overtime, additional leave days, preferred job allocations and preferred toilet breaks; and

● You have engaged in other inappropriate behaviours with female team members at the workplace, including engaging in sexually explicit discussions, and sitting with female team members on your lap in the group room during your break.

…..

Given the serious nature of the allegations, TMCA requires you to be absent from work on authorised paid leave, effective immediately, for the duration of the investigation. The decision to suspend you, with pay, has been made in accordance with clause 34.11 of the Toyota Workplace Agreement 2015.” 20

[26] The second letter provided to Mr Abarra was a letter informing him that a complaint regarding inappropriate behaviours, sexual misconduct and sexual harassment in the workplace had been made against him as afternoon shift Group Leader in the Paint Shop and TMCA had engaged an independent investigator to conduct a confidential investigation into those allegations. The letter outlined the key requirements set down by TMCA to be applied to Mr Abarra’s participation in the investigation being co-operation, confidentiality and no victimisation.  21

[27] On 12 February 2016 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) wrote to Ms Slattery on behalf of Mr Abarra raising some concerns about the processes engaged in by TMCA in conducting the investigation into the allegations against Mr Abarra. The AMWU claimed the investigation process was flawed and being undertaken contrary to the terms of the Workplace Agreement. TMCA were notified that the matters were in dispute in accordance with the Dispute Avoidance Clause in the Workplace Agreement. 22 Ms Slattery responded to Mr Dwyer’s concern in writing on 15 February 2016.23

[28] On 17 February 2016 Mr Abarra was advised that he was to attend a meeting with Ms O’Brien QC. Mr Abarra attended that meeting with Mr Victor Jose, AMWU Official, as a support person. Mr Abarra submitted that Ms O’Brien QC conducted the interview in an aggressive, discourteous and dismissive manner. He further submitted he was threatened with termination if he refused to answer a question or left the interview early. 24

[29] On 24 February 2016, AMWU filed a Form F10 Application for the Commission to deal with a dispute in relation to the investigation into the allegations against Mr Abarra. On 9 March 2016 a conciliation conference was held and the application was not resolved. 25

[30] Mr Abarra received a letter via courier on 11 April 2016 requesting he attend a meeting on 12 April 2016. Mr Abarra attended the meeting with Mr Tony Hynds, AMWU Official, as his support person. Ms Slattery and Mr Kershaw conducted the meeting during which Mr Abarra was provided with a letter and an attachment setting out a series of findings made by Ms O’Brien QC during her investigation. 26 The findings in the attachment addressed the allegations contained within the letter and were as follows:

“1) you favoured a group of young TFTs on the PM shift in the Sealer Group by giving them relief from rotations on the line without appropriate grounds (Abarra Allegation 1).

2) you failed to appropriately monitor and enforce the requirement that team members are not to use mobile phones while working on the line (Abarra Allegation 2)

3) you permitted a group of TFTs to wear their PPE other than in accordance with Toyota’s safety requirements (Abarra Allegation 3)

4) you allowed a group of TFTs to take overly lengthy toilet breaks, namely breaks of up to 14 minutes, outside ordinary break times (Abarra Allegation 4)

5) you permitted employees to plan the taking of sick leave in advance (Abarra Allegation 5).

6) your conduct towards female employees on the line has been characterised by excessive sexual remarks, personal remarks, and remarks otherwise inconsistent with his position as a supervisor (Abarra Allegation 6)

7) you were involved in importuning female employees working on the line. When those women refused your advances, it is alleged that you then gave them the ‘silent treatment’ (Abarra Allegation 7)

8) you shared your desk with female employees, it is alleged that this involved you and other female employees sitting on your chair together, in particular in a straddling-type position, in front of other team members (Abarra Allegation 8)

9) you were alone with other female employees in the lunch room with the lights off for 30 minute periods during ordinary working hours (Abarra Allegation 9)

10) you had been alone with another female employee in the lunch room with the lights off while the employee was only in her underwear (Abarra Allegation 10)

11) you allowed Chantelle Ngo to leave the line without permission, and allowed her to go home without a medical certificate (Abarra Allegation 11)

12) you granted non-production overtime to favoured employees, and did not follow the pre-determined overtime roster. It is also alleged that you would give these people filing work which was not appropriate to give to employees during overtime hours (Abarra Allegation 12)

13) on 27 January 2016, following the suspension of our employment, you admitted to Mr Geoff Kershaw that you massage female employees on the line (Abarra Allegation 13); and

14) on 27 January 2016, following the suspension of your employment, Mr Abarra said to Mr Geoff Kershaw that you did not have sex with the female employees during work time, but rather saved that for after hours, or words to that effect (Abarra Allegation 14).”

[31] Ms O’Brien QC found that allegations 1-4, 6-9 and 11-14 were substantiated. Allegations 5 and 10 were unsubstantiated. 27

[32] TMCA formed the preliminary view that Mr Abarra had engaged in conduct which breached his employment obligations under the Workplace Agreement and TMCA’s policies and procedures, including the ‘Workplace Relationships Policy and Procedures’. Mr Abarra was requested to ‘show cause’ in writing by 15 April 2016 as to why his employment should not be terminated, however this date was ultimately extended to 2 May 2016 at the request of the AMWU. 28 The AMWU responded in writing on 2 May 2016 to the allegations contained in the 12 April 2016 letter and the findings made by Ms O’Brien QC.29

[33] On 17 May 2016 TMCA wrote to Mr Abarra clarifying some of the queries raised by the AMWU in its letter dated 2 May 2016 with regard to PPE and TMCA’s sexual harassment policy and requested he attend a meeting on 23 May 2016. 30

[34] A further meeting was held on 23 May 2016 with Ms Slattery, Mr Kershaw and Mr Jose in attendance as Mr Abarra’s support person. Mr Abarra submits that he objected to the way the meeting was being conducted and the meeting ended abruptly. After the meeting Ms Slattery prepared an internal investigation report which outlined the external and internal investigation process, the findings and the HR recommendation for termination of Mr Abarra’s employment. 31

[35] Mr Abarra attended another meeting on 3 June 2016 with Ms Slattery and Mr Kershaw, again with Mr Hynds in attendance as his support person. 32 Mr Abarra was dismissed during that meeting and was provided with a letter notifying him of the immediate effect of the dismissal. The notice of termination letter states the following as the reasons for the decision to dismiss Mr Abarra;

“…..it has been substantiated that you:

● Unacceptably failed to perform your supervisory duties as Group Leader in a consistent and fair manner across the Sealer Group in Paint Shop;

● Improperly exercised the power and authority held by you in your position as Group Leader by favouring certain team members over other because of your personal relationships with these team members

● Made inappropriate comments to, and engaged in inappropriate physical conduct with team members of the Sealer Group, in the workplace, and in view of your team members; and

● fostered an exclusionary culture within the Paint Shop and engaged in conduct which breached Toyota’s Workplace Relationships Policy and Procedure and the Workplace Agreement.

Your conduct constitutes an unacceptable and serious breach of:

● Toyota’s Workplace Agreement (including the ‘Toyota Way’, ‘Teamwork Charter’ and the Group Leader supervisory obligations to promote ‘team harmony’ and ‘fair treatment for all’)

● Toyota’s Workplace Relationships Policy and Procedure;

● Your duty of good faith to TMCA.” 33

[36] In forming their decision to dismiss Mr Abarra TMCA relied on their own inquiries and the findings from the investigation conducted by Ms O’Brien QC.

Consideration

Harsh, Unjust Unreasonable

[37] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account whether there was a valid reason for the dismissal related to the person’s conduct or capacity.

[38] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd.34 McHugh and Gummow JJ explained as follows:

[39] The consideration prescribed by s.387(a) is whether there was a valid reason, and the Commission must satisfy itself of the validity of the reason and its factual underpinning. A valid reason is one that is ‘sound, defensible and well-founded.’ 36

[40] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 37 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).38

[41] In cases relating to alleged misconduct, it is well accepted that the Commission must make a finding, on the evidence in the proceedings before it, whether, on the balance of probabilities, the alleged conduct occurred. 39 Where the misconduct is disputed the employer bears the onus of proving to the Commission on the balance of probabilities that the misconduct has taken place.40 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.41

[42] Mr Abarra submits that where allegations of misconduct are made the ‘standard of proof’ in relation to whether the alleged conduct occurred is the balance of probabilities, however he submits in assessing the factual allegations the principles in Briginshaw v Briginshaw (Briginshaw) 42 should apply.

[43] Usually the role of the Commission is to determine whether there was sufficient evidence that the alleged conduct occurred. The “standard of proof” in relation to whether the alleged conduct occurred is the balance of probabilities, however “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove”. 43 In Briginshaw, the High Court stated that the balance of probabilities test requires the tribunal to:

“feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality…[A]t common law… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.” 44

[44] Where the conduct involves serious misconduct, the principles applicable to the standard of proof established in Briginshaw may be relevant. Although the standard of proof remains the balance of probabilities, depending on the nature of the allegation the strength of evidence required to meet the standard of proof may change. As the High Court in Briginshaw noted, the nature of the relevant issue may necessarily affect the process by which reasonable satisfaction is attained and such satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences. 45

[45] I concur with Mr Abarra’s contention that he has been accused of serious misconduct as he was dismissed in connection with the serious allegations concerning his conduct towards a group of young female TFTs. This affects the application of Briginshaw and accordingly the more serious allegations may require stronger evidence and the Commission will need to take into account the need to be properly satisfied of the proofs that the conduct occurred.

[46] During the hearing and again in its closing submissions TMCA sought to emphasise the importance of its Workplace Agreement, in particular the “Toyota Way” and its reliance on the “Toyota Way” in effecting the standards and behaviours expected of employees. The Toyota Way is expressly recognised in Clause 8 of the Workplace Agreement as follows;

“The Toyota Way expresses the shared values and required actions which TMCA Employees fulfil in order to achieve our success. The Toyota Way is an ideal, a global standard and provides a foundation for the people of the world-wide Toyota organisation. The concepts that make up the Toyota Way transcend language and nationality.

The Toyota Way is supported by two main pillars “Continuous Improvement” and “Respect for People”. We are never satisfied with where we are and always improve our business by putting forth our best ideas and efforts. We respect people, including our customers, Employees and other stakeholders and believe the success of our business is created by individual efforts and good teamwork. All TMCA Employees, at every level, are expected to use these two values in their daily work and interactions.” 46

[47] Ms Box’s evidence was that;

“The ‘Toyota Way’ represents the core values of Toyota as a global company. It is based on two key tenets: Challenge and Respect. The first tenet ‘Challenge’ relates to the organisation’s commitment to ‘Continuous Improvement’ or ‘Kaizen’ in all aspects of the business. The second tenet ‘Respect’ benchmarks Toyota’s global standard for all dealings with people.” 47

[48] Whilst Ms Box’s evidence that the ‘Toyota Way’ formed the foundation of the workplace culture was unchallenged, Mr Abarra submitted that the Commission in its assessment of the evidence should carefully and separately assess whether each of the separate allegations of misconduct have been proven by TMCA, and should be cautious not to merely consider whether the conduct was contrary to the company ethos expressed as the ‘Toyota Way’ as to assess the evidence at a higher level would be contrary to established principle. 48

[49] Finally, the Act requires me to consider whether there was a valid reason for dismissal. In the current matter there are several reasons advanced for the dismissal of Mr Abarra however it is not necessary that all of those reasons be substantiated. Further, it is well-established that a valid reason need not necessarily be the one relied upon by the employer.

[50] I will now examine the reasons for the dismissal connected to the conduct of Mr Abarra to determine whether I am persuaded that Mr Abarra committed some or all of the relevant conduct, and whether any such conduct constitutes a valid reason.

The reason for Mr Abarra’s dismissal

[51] In addition to the reasons for the dismissal set out in the termination letter TMCA state that they had placed a high level of trust in Mr Abarra as a Group Leader with significant authority and that he was expected to demonstrate competent supervisory abilities and leadership in relation to TMCA’s workplace culture, workplace policies, the Workplace Agreement and the ‘Toyota Way’. The letter states due to Mr Abarra’s conduct TMCA had lost trust and confidence in his ability to perform his role as Group Leader and that Mr Abarra had unacceptably failed to meet the standards and behaviours expected of him.

[52] In their final submissions, Mr Abarra and TMCA each addressed the reasons for dismissal set out in the termination letter albeit in different ways. TMCA’s approach was to address the alleged conduct in broad statements as particularised in the letter of termination and more generally as; favouritism of certain team members and inappropriate conduct in the workplace. 49

[53] In Mr Abarra’s submission he understood the reasons for his dismissal to be each of the allegations set out in the ‘show cause’ letter other than those matters found not to be substantiated. 50 Mr Abarra submitted in terminating his employment TMCA relied on each of the allegations from Ms O’Brien QC’s findings and addressed each of those allegations as a separate matter.

[54] In order to understand in full some of the reasons TMCA relied on for the dismissal of Mr Abarra it is necessary to outline the operational settings in which the alleged conduct took place as well as Mr Abarra’s management responsibilities and level of authority.

[55] There are two shifts worked on the sealer line, the day shift and the afternoon shift (also referred to as ‘the PM shift’). The PM shift commences at 5:30pm and finishes at 2:00am. The General Foreperson is the most senior position on the PM shift after 10:00pm, which at the time of the alleged conduct was Mr Tainsh. There are 13 different stations at which employees perform their work, 7 on the left hand side of the production line and 6 on the right. All workers are required to rotate stations once every two hours. Not all employees are trained to work on all stations as there are various stages of competency before employees can be considered fully trained in a particular station however there are some employees who have been trained to work on all stations.

[56] The perception held by some of the witnesses was that in the workplace, at the very least, Mr Abarra and Mr Tainsh were “good friends” therefore inferring that if one was to complain about Mr Abarra to Mr Tainsh they would jeopardise their employment. 51 The evidence before me in these proceedings was that employees understood the hierarchy of management to be that Mr Tainsh managed Mr Abarra and that there was no authority beyond Mr Tainsh52 or that as temporary fixed term contractors they risked losing their employment if they raised a complaint about Mr Abarra to Mr Tainsh or anyone else at TMCA.53

[57] Most of the allegations against Mr Abarra involve his conduct towards a group of young female employees working in the Sealer Group engaged on temporary fixed term contracts (young female TFTs). Therefore it is important to set out the role and responsibilities Mr Abarra has in the engagement and extension of each of the TFT employees’ contracts.

[58] Mr Tran’s evidence was that the renewal process for TFT contracts was by way of recommendation from Mr Abarra to Mr Tainsh. Mr Tainsh held the authority of either accepting or declining the proposed recommendations put forward by Mr Abarra. Mr Tran was unsure of the process after that. 54 Mr Tainsh disputes that he held the authority for approving the hiring of TFTs and submitted that it was ultimately the responsibility of HR.55

[59] I accept that HR provided assistance with the strategic planning for the purposes of manning numbers however the evidence before me on this matter is that their role in the decision making process for hiring of TFTs for identified vacant roles is purely administrative. The Group Leader is the person who makes the recommendation as to who gets their TFT contract renewed and ultimately the General Foreperson has the authority as to whether to accept that recommendation or not.

[60] During the term of Mr Abarra’s role as Group Leader the composition of the Sealer Group changed quite considerably. When he commenced in his role as Group Leader in the Sealer Group in 2013 the group consisted of a ratio of approximately 70% male and 30% females. 56 At the time of the alleged conduct the Sealer Group PM shift was made up of approximately 4 permanent employees and 13 to 14 TFTs,57 the majority of the group consisting of young female employees on TFT contracts. Each TFT engagement is for a term of approximately six months due to the impending closure of the Altona site. Mr Abarra held the responsibility of recommending to Mr Tainsh which of those employees would be rehired at the end of their contracts.58 Mr Tainsh would then authorise whether or not to accept that recommendation, subject to TMCA manning requirements which were decided at a higher level than Mr Tainsh.59

[61] As previously stated Mr Abarra worked in the Sealer Group which includes a production area called the Sealer Line. My observation during a site visit at which time I attended the Sealer Line was that there is a group room containing Mr Abarra’s desk, adjacent to the elevated platform upon which the sealer line is located, where employees go to eat their lunch whilst on break. In my opinion the line was not overly lengthy for a production line and employees were operating from both sides of the production line. A mirror was fixed at the top of the stairs, the stairs being the main entry from the group room to the production line. My observation was that the mirror was placed in such a way that it gave anyone sitting at the desk in the group room visibility of anyone approaching from the direction behind the desk external to the group room. The mirror gave an unimpeded view of the production line to the rear of the group room. The group room is clearly visible from most of the stations on the sealer line. Some stations afford a view directly into the group room through the window located adjacent to desk used by Mr Abarra. Some of the stations would have their view obstructed by the vehicles on the line however one could simply move their position to obtain a view of or into the group room.

[62] TMCA contended that Mr Abarra favoured a group of young female TFT employees on the PM shift in the Sealer Group and that his preferential treatment of these employees included providing favourable relief from rotations on the line without appropriate grounds, providing non-production overtime and filing work which they say was not appropriate to give employees during overtime hours, and providing additional lengthy toilet breaks of up to 14 minutes and outside of ordinary break times. TMCA further submitted that Mr Abarra condoned prohibited conduct by failing to appropriately monitor and enforce that team members not use mobile phones while working on the line, allowing employees to wear PPE other than in accordance with TMCA’s safety requirements and allowing employees to leave the line without permission or go home without medical certificates. Finally, TMCA submitted that Mr Abarra had engaged in inappropriate comments and behaviour towards female employees.

Abarra Allegation 1 – Relief from rotations

[63] Evidence was heard on the allegation that Mr Abarra had favoured a group of young female TFTs by providing relief from rotation at certain stations without requiring a medical certificate. There were mixed opinions amongst the witnesses as to the level of difficulty for each station. It was suggested that station 4 was more difficult than the other stations and that Mr Abarra was allowing the group of young TFTs to be relieved from that station more often than other employees. 60 Mr Tran personally did not find any station to be more difficult than any other.61 However his evidence was that station 4 was the station that Ms Icbudak and Ms Szydlowski had been relieved from due to medical reasons.62

[64] Mr Abarra’s evidence was that it was the team leader who coordinates the rotations and that one of the principles for governing rotations was that if a worker complained of pain or discomfort believed to be caused by working at a particular station, the team leader will use his or her discretion to intervene and coordinate rotations so that the worker’s pain or discomfort is not exacerbated. Medical evidence is not necessarily required immediately, but if the issue was to continue a medical certificate or other evidence of incapacity would be required. I understood Mr Abarra’s evidence during cross-examination on this issue to be that if someone had an a short term injury as long as they could perform at least four stations he did not require a medical certificate because he had enough TFTs to cover the rotations. 63

Mr Tran’s evidence was that he set up the rotation schedule for the lines before the commencement of each shift and it was generally not a task performed by Mr Abarra. The only time Mr Abarra became involved was if an employee had an injury or if Mr Tran was absent from work for whatever reason. Mr Tran gave evidence that if someone had issues about rotations they would raise those concerns with him and he would raise them in turn with Mr Abarra. 64

[65] Station rotations are recorded manually in paper form on a ‘job rotation table’ showing each of the names and locations of employees. 65 The job rotation sheets for the months of January to March, November and December 2015 were provided to the Commission containing the names of each employee who attended work for each day and which station they were allocated to during each two hour rotation.66 On review of the job rotation sheets for each of those months I noted that there were a number of distinctly different forms of handwriting suggesting that at times when Mr Tran is either away, assisting in another area (such as resin) or on occasions not explained during the hearing, he is not the only person who completed the rotations sheets.67

[66] There is also a ‘rotation board’ situated at the sealer line. This board contains photos of each employee along with their name and identifies the station at which they are to work. Rotations can be changed on the rotation board during shifts. 68

[67] Mr Abarra produced a document said to be a summary of Ms Icbudak’s and Ms Szydlowski’s rotations over a period of 5 months taken from the job rotations sheets. Whilst explaining the content of the document Mr Abarra gave the following evidence;

“Based on this documents that are provided, we try to put where Rebecca and Melek - this is the two senior - my favourites, all right, so it really shows over there their work in station 1, station 2, station 3, station 4, station 6.” 69

[68] Mr Abarra was referring to Ms Icbudak and Ms Szydlowski as his “two favourites” however denied that he had given them preferential treatment. Mr Abarra, whilst explaining how he did, or rather did not, place employees on station 5 stated that he didn’t place “the cute people” there. 70 Mr Abarra realised the inappropriateness of the reference he had used to describe those young female TFTs and proceeded quickly to justify by way of explanation why he had referred to those young female TFTs as cute people.71 His justification was that he didn’t put the short women on station 5 because they cannot reach the boot lid and therefore are unable to do the job. His evidence was that he called them ‘cute’ because he didn’t want to discriminate by calling them short.72

[69] During my site visit I had the opportunity to observe station 5. I paid particular attention to the size and stature of the employees working at that station. My observation was that there would have been little height difference between an employee I observed working on station 5 and Ms Icbudak or Ms Szydlowski.

[70] Ms Talevski’s evidence was that on a number of occasions she saw Mr Abarra tell Mr Tran not to place Ms Icbudak and Ms Szydlowski on the “hard stations”. 73 Under cross-examination Ms Talevski submitted that she had approached the Group Leader a few times to ask why Ms Icbudak and Ms Szydlowski were placed on the easier stations and was told that their hands were sore.74 Ms Haciomer gave evidence that Ms Icbudak and Ms Szydlowski did not work on station 4 even though they were trained to do so.75 Mr Rehman gave evidence that he had witnessed Mr Abarra changing the rotations board at the request of Ms Szydlowski and Ms Icbudak.76

[71] Ms Talevski, Ms Haciomer and Mr Rehman each conceded that they had no knowledge as to whether or not the employees alleged to have been provided with relief from rotations had medical certificates. 77

[72] Mr Rehman gave evidence that he had raised his concerns about Mr Abarra changing the rotations with Mr Tran. Mr Rehman says that Mr Tran had stated “I don’t want to say anything against Homer because I want to stay Team Leader”. 78 Mr Tran denies that he had ever made statements to that effect to Mr Rehman.79 Mr Rehman also gave evidence that Ms Szydlowski was trained to work on station 4 and 5 and that Ms Icbudak was trained to work on stations 3 and 4.80

[73] Mr Tran’s evidence was that Ms Icbudak had medical restrictions and therefore was unable to work on station 4. 81 He also gave evidence that Ms Szydlowski was still being trained on station 5 and she had a medical certificate preventing her from working on station 4 at the time.82

[74] Ms Icbudak’s evidence was that she was trained to work on 5 of the 7 stations and that she had never been allowed to skip rotations. 83

[75] Ms Szydlowski gave evidence that she had suffered from a back injury earlier in 2016 supported by a medical certificate and had since stopped working on stations 3 and 4 and could only work on 2, 6 and 7. 84

Abarra Allegation 2 – Use of mobile phones

[76] The evidence suggests that there was an ongoing issue with the use of mobile phones on the sealer line. Mr Tran gave evidence that it was the Group Leader’s primary responsibility to enforce compliance with the mobile phone policy. 85 Mr Abarra’s evidence was that although mobile phones are banned whilst employees are working on the line employees are permitted to use their phones in the group room whilst on their breaks. Mr Abarra’s evidence was that every 2 or 3 weeks he would find an employee using their phone and would either direct them to put their phone away, counsel the employee or give them a verbal warning.86 Mr Abarra also gave evidence that he would remind workers of the policy concerning mobile phone use at daily communications meetings.87 This evidence was supported by Ms Toos and Mr Tran.88

[77] It did not appear to be in contention that Mr Abarra raised the issue of mobile phone usage at meetings; rather the allegation regarded his willingness or lack thereof to enforce the policy appropriately. 89

[78] Ms Icbudak, Ms Szydlowski and Ms Toos each gave evidence that they had been spoken to by Mr Abarra for using their mobile phones on the sealer line. 90

[79] Mr Rehman gave evidence that he had in 2014 to 2015 witnessed the usage of mobile phones on the production line in the presence of Mr Abarra. 91 He also gave evidence that Mr Abarra would raise the issue of mobile phone usage in team meetings however Ms Icbudak, Ms Szydlowski, Ms Toos and Ms Ngo continued to ignore this.92

[80] Mr Tran gave evidence that mobile phones were a problem not only in the Sealer Group. 93 His evidence was that since the departure of Mr Abarra it had become less of an issue however it is still an issue.94

Abarra Allegation 3 – Wearing of PPE

[81] TMCA contend that Mr Abarra failed in his supervisory duty when he permitted young female TFTs to wear their PPE other than in accordance with TMCA’s policies. Mr Abarra denied this allegation. His evidence was that if he saw employees not wearing their overalls correctly he would direct the Team Leaders to address the issue. 95

[82] The allegation of Mr Abarra’s failure to enforce the correct wearing of PPE involved some contention as to whether or not PPE had to be worn in the group room whilst employees were on a break. Mr Kershaw’s evidence was that employees should not wear their overalls in the workroom whilst eating lunch in order to avoid any potential defects on the line. 96 Mr Abarra’s evidence was he supported Mr Kershaw’s view however there is no policy regarding this. Regardless it was his evidence that employees do not have to wear their uniforms in the group room whilst on lunch. Mr Abarra did however state that he is “more strict” on the line.97

[83] Mr Tran gave contradictory evidence that all employees are supposed to wear their PPE from the time they enter the paint shop, which includes wearing their PPE in the group room and whilst on their breaks. 98 Mr Tran’s evidence was that on station 2 some employees were permitted to role the sleeves up a “tiny bit” to avoid getting the sealer on the car with their sleeves.99 He also gave evidence that Mr Abarra had spoken to team members about PPE.100

[84] TMCA provided a photograph that had been taken at the plant in support of this allegation. The photograph, posted on Facebook with the caption “da big boss”, shows Mr Abarra with his overalls removed to his waist, exposing his upper body, with Ms Icbudak and Ms Szydlowski flanked either side of him and Mr Abarra’s head resting on Ms Szydlowski’s head. 101 TMCA also relied on this photo as evidence of Mr Abarra’s ongoing inappropriate conduct with the young female TFTs, however I will deal with this more detail below. It is uncontroversial that the photo was taken in the group room.102

[85] Ms Haciomer gave evidence that Ms Ngo had worn her zipper down on her overalls low enough that she could see her cleavage. 103 She also gave evidence that Mr Abarra would speak to the whole group about wearing their PPE properly however not everyone would comply. She stated that “he does his job by telling us, you know, and from there on it’s up to us, whether we follow it or not”.104

[86] Ms Rajaram’s evidence was that Ms Icbudak, Ms Szydlowski and sometimes Ms Ngo would wear their zippers down low enough that you could see their bras underneath, torn overalls that would expose their midriff and nothing but their underwear underneath their overalls. 105

[87] Mr Rehman gave evidence that Ms Icbudak and Ms Szydlowski would wear the zippers on their overalls down low enough that their cleavage was visible and he gave evidence that he could see that Ms Icbudak was only wearing underwear underneath her overalls. He gave evidence that on numerous occasions he tried to raise the issue with Mr Abarra, however Mr Abarra dismissed him by telling him to either ignore it or telling him that they were “looking good, let them do it” and “looking gorgeous, leave them alone”. 106 Mr Abarra’s evidence was that he had no recollection of Mr Rehman ever having raised with him any PPE concerns.107

[88] Mr Rehman gave further evidence that on one occasion Ms Icbudak flashed her underwear and bra at Mr Abarra. 108 Mr Abarra and Ms Icbudak both denied that this occurred and no other witness gave evidence that corroborated Mr Rehman’s account of this incident. However Ms Icbudak did accept that she occasionally just wore a bra under her overalls when she forgot to wear something to work that she could wear under her overalls.109

[89] Ms Souliyavong gave evidence that she had also seen Ms Icbudak, Ms Szydlowski and Ms Toos wearing their overalls with the zips down and the sleeves up from the edge of their gloves. She also gave evidence that they wore low-cut tops beneath their overalls so that when they bent down you could see their breasts. Ms Souliyavong’s evidence was that she did not see Mr Abarra telling them off for wearing their overalls in this fashion. 110

[90] Mr Abarra during cross-examination gave evidence that he had complemented some of the female employees about the embroidery on their tops whilst they were wearing their overalls. 111 In order for Mr Abarra to be able to see the fabric of the garment being worn under the overalls the overalls would need to have been worn with the zips down low enough for him to see. Mr Abarra explained that during the hotter months some of the employees would partially unzip their overalls. His evidence was that this would occur at least once a month and on each occasion he either addressed the issue directly or through his Team Leader.112

[91] Mr Abarra’s evidence was also that there had been on occasion employees just wearing their underwear under their overalls. His evidence was that he did not consider it to be his job to monitor what workers were wearing underneath their overalls and he was not aware of any policy that this is not allowed. His evidence was that when he noticed this to be the case he would offer the employee some tape so they could tape closed the slits where the underwear would be exposed. He submitted that sometimes they would take up his suggestion. 113

Abarra Allegation 4 – Taking of overly lengthy toilet breaks

[92] The main concern raised with respect to toilet breaks was that Ms Ngo, Ms Icbudak, Ms Szydlowski and Ms Toos were being favoured by being allowed to take more frequent and overly lengthy toilet breaks. Mr Rehman, Ms Haciomer, Ms Vasilije and Ms Souliyavong gave evidence that they believed either one or all of the before mentioned employees were being favoured during toilet breaks. 114 However, their evidence was that they themselves had never been denied toilet breaks upon request.115

[93] Mr Tran’s evidence was that Mr Abarra had to keep raising concerns regarding toilet breaks at pre-start meetings. Mr Tran submitted that it is a general problem across the whole group, stating that when one person goes to the toilet everyone else decides to do the same thing. 116 Mr Tran submitted he was the one responsible for granting toilet breaks as he had to provide relief for the duration of the break.117

[94] Ms Ngo gave evidence that during her pregnancy she would more frequently request toilet breaks outside of the schedule breaks and it was to Mr Tran or a team leader that she would direct her request. 118

[95] Ms De Leon gave evidence that due to some medial issues she needed to go to the toilet more frequently and had provided a medical certificate in support to Mr Abarra. 119

Abarra Allegation 12 – Favourable allocation of overtime

[96] There was a perception amongst a proportion of the Sealer Group employees that overtime was being allocated unfairly. This issue was not a new issue and had been raised with Mr Abarra in the past. Mr Abarra’s evidence that he had changed the way overtime was allocated due to complaints he had received was uncontested. 120

[97] Overtime in the Sealer Group is allocated according to an overtime list. Mr Tran’s evidence was that he was responsible for making sure the overtime list was followed unless an employee is requested to do overtime in another area. 121 It does not appear that Mr Tran had any say in who was put on the list or had any authority to alter the list122 but rather he followed the list when allocating the overtime.123

[98] Ms Rajaram and Ms Talevski gave evidence that they observed Mr Abarra allocating filing and administrative work as overtime, rather than the standard non-production overtime of cleaning, to Ms Icbudak, Ms Szydlowski and Ms Toos. 124

[99] Mr Abarra did not deny providing filing or computer work as overtime and submitted there was a need on at least maybe 2 or 3 occasions a year for assistance with filing and he would give that work to persons with the appropriate skills. 125

[100] Mr Kershaw’s evidence was that it was the responsibility of the Group Leaders to allocate overtime. He also gave evidence that filing work for team members in the Sealer Group was an unacceptable type of overtime. His evidence was that the Sealer Start-up/Shut Down Activity document outlines each type of overtime which is available at a Group Leader, Team Leader and Team Member level. This document does not list any administrative work as acceptable overtime for a Team Member and under no circumstances should a Team Member be staying back to complete tasks that would otherwise be part of the Group Leader’s role. 126

[101] In support of Mr Abarra’s contention that he had not provided favourable treatment in the allocation of overtime Mr Tainsh submitted an overtime analysis. 127 Mr Tainsh had produced his analysis using the data obtained from the overtime reports128 sourced from TMCA’s SAP pay system and were purported to contain overtime hours worked and overtime hours paid.129

[102] Mr Tainsh’s analysis produced from those reports contained a number of errors. Mr Tainsh produced a second analysis in an attempt to rectify the errors from the first overtime analysis. 130 TMCA objected to the accuracy of the documents and for those reasons they submit the documents have no probative value.

[103] Mr Kershaw produced his own analysis on behalf of TMCA. 131 Mr Kershaw’s document separated out both unplanned overtime and non-production overtime. Mr Kershaw’s analysis was of the data recording overtime that was worked from 2:00am onwards. Non-production overtime I understood to be the cleaning and special activities that are done after the shift has finished, whereas production overtime was where Mr Kershaw said there needed to be overtime given based on the right skill sets.132

[104] Mr Kershaw’s evidence was that his analysis showed unexplained variations in Mr Tainsh’s analysis and therefore Mr Tainsh’s analysis should not be relied on. However, he gave evidence that he could not be certain without a deeper analysis of the data as to whether or not there had been favouritism.  133

Abarra Allegation 6 – Excessive sexual remarks, personal remarks and remarks otherwise inconsistent with position as a supervisor; Abarra Allegation 7 – Importuning female employees and giving them the ‘silent treatment’ if the advances were refused

[105] TMCA contends that Mr Abarra had on many occasions made inappropriate comments to the young female TFTs and this constituted a valid reason for his dismissal.

[106] Mr Abarra did not dispute that he would pay compliments to some of the female employees in the Sealer Group about their appearance. In cross-examination Mr Abarra gave evidence that he had told Ms Icbudak that she had beautiful eyes and had told some team members they had pretty eyes. 134 He submitted that he had told Ms Szydlowski and another employee that they smelt nice, upon which they responded by telling him the name of the perfume, and he would reply that maybe he could buy it for them as a present.135 Mr Abarra submitted that he would sometimes just walk up to the employees on the line and say “hey you’re beautiful” and everyone would hear him.136 He would make comments to the effect of “you’re looking gorgeous today”137 and would also compliment female employees on their clothing.138 Mr Abarra submitted that he had no real motive in making these comments and continued to do so because the young female TFTs would laugh and did not tell him to stop, therefore he was not offending anybody.139 Mr Abarra’s evidence was that if they did not like it, they should have just said ‘stop’.140 Mr Abarra also submitted the employees could tell him anything, they could say “bad words” to him and because he could accept criticism they could tell him if they were offended but they didn’t.141

[107] Further, in cross-examination Mr Abarra said as follows;

“…it’s like they making a lot of mistakes and I try to feedback to them and then you can see their facial that like it’s not happy on your feedback and you say “You’re beautiful”… So in every circumstances there’s always what’s this context and why I said all those things. It’s not really just like randomly “You’re beautiful”, “You’re beautiful” but sometimes I say “You’re beautiful” to distract their mind and also a lot of people sometimes spending their time on the mirror and I say “Hey, you’re beautiful already. You don’t need to fix your face”. It’s not really why you trying to say that like it’s (indistinct) or trying to think but it’s not. The motive is not there.” 142

[108] According to Mr Abarra’s evidence, his comments were selective and not just random. He submitted that he used flattering comments of a personal nature in an attempt to manage the female employees’ perception of him as well as their behaviour. For those reasons Mr Abarra was of the view his conduct was justifiable and perfectly acceptable.

[109] In cross-examination Mr Abarra, referring to the young female TFTs, said he appreciated the “hard work they’ve done on their face” and he would tell them “you look great”. Mr Abarra said sometimes when the young female TFTs were discussing their make-up he liked to join in and tell them “oh you look great, you look great, you know, just to make them feel happy or feel motivated”. 143 Mr Abarra again did not think there was anything wrong with having discussions of this nature with the young female TFTs who reported to him, and sought to justify his comments in a way that portrayed this group of females as needing his compliments so that they didn’t “think negatively” of themselves and “to lift their image up”.144

[110] Ms Vasilije gave evidence that on a number of occasions Mr Abarra approached her on the production line or in the Group Room and made comments about her tongue piercings, such as “when can I feel them?” and “when can I kiss your lips?”. 145 Mr Abarra confirmed that he asked Ms Vasilije about her tongue ring, however says that he had asked her “for educational purposes” and he gave her the option of either answering or not.146

[111] Ms Vasilije gave evidence about Mr Abarra asking her to socialise with him outside of work by hosting a barbecue. Mr Abarra’s evidence was that he suggested Ms Vasilije could organise a social gathering herself and invite others as that way she could have a drink with the other team members. He submitted that he did so as Ms Vasilije had complained to him that she wished she could drink with her colleagues however because she was on her P-plates she couldn’t go to the clubs and drink. 147 Mr Abarra made the point that he did not invite Ms Vasilije to have a beer and barbecue with him but rather recommended she have one and then it was up to her as to whether or not she invited him.148

[112] Ms Vasilije also gave evidence that on one occasion Mr Abarra approached her, looked at her chest and told her she was ‘flat chested’. She submitted that Mr Abarra seemed to think the comment was a joke as he laughed when he said it, although she did not find this funny. 149 Mr Abarra denied making this comment. In cross-examination his evidence was “she’s the one that said “Homer I got flat chest”, and that he told Ms Vasilije not to worry because it’s “not about the figure, it’s about what’s inside”.150

[113] Regardless of which version of events is accepted Mr Abarra, a 50 year old Group Leader, did not think that engaging in discussions of this nature with a young female trainee TFT was in any way inappropriate. Mr Abarra’s own evidence was that Ms Vasilije, from within the first week or two of her employment, started discussing her private life with him such as dating, sex and problems at home with her family. 151

[114] Mr Tran gave evidence that he had been witness to Mr Abarra paying compliments such as “you are beautiful” and that he would say that “to any girl in there”. 152 However, under further cross-examination Mr Tran’s evidence was that he would only say these things to Ms Vasilije and Ms Toos.153

[115] Ms Toos and Ms Szydlowski supported Mr Abarra’s evidence that he would often give compliments to members of the Sealer Group about their appearance. Ms Toos interpreted the comments from Mr Abarra as friendly and complimentary. 154 Ms Szydlowski’s evidence was that she interpreted Mr Abarra as saying ‘nice things’ because he wanted to make people feel like they want to come to work.155

[116] Ms Iwunze gave evidence that Mr Abarra had paid compliments to “a lot of Sealer Group Workers” and that it did not occur to her that there could be any issue with anything Mr Abarra had said. Her evidence was that everyone would speak to everyone like this.  156 The allegation made by Ms Vasilije that Mr Abarra had told Ms Vasilije that she was flat chested was put to Ms Iwunze in cross-examination, and Ms Iwunze advised she didn’t hear it that way, however the comment sounded familiar. On re-examination she said she didn’t recall Mr Abarra saying this. 157

[117] Ms Iwunze’s also gave evidence that she herself had received a number of compliments from Mr Abarra regarding her appearance and that he had told her she was a princess.  158

[118] Ms Nguyen gave similar evidence being that Mr Abarra would tell her she looked beautiful or he would complement her on her hair and that his comments made her feel happy. 159

[119] Ms Talevski described Mr Abarra as being friendlier towards women at work than towards the men. Ms Talevski in cross-examination abandoned her earlier reference to Mr Abarra as sleazy, stating that it was not the word she had chosen to use, and instead her evidence was that he would approach women in a way that was not particularly proper. 160 Ms Talevski also gave evidence that the conduct of Mr Abarra and Ms Szydlowski was of no concern to her.161 In context I took this to mean that Ms Talevski thought it was not her business, nor did she want to get involved.

[120] Mr Rehman gave evidence that was consistent with the evidence of Mr Abarra, Ms Iwunze, Ms Toos, Ms Vasilije and Ms Szydlowski, that he had heard Mr Abarra make comments to female employees about their appearance. This included comments to Ms Icbudak and Ms Szydlowski such as “how beautiful they were and how gorgeous they were” 162 He also gave evidence that Mr Abarra had made comments to him to the effect of “what do you think their size is?” when referring to Ms Madanu.163 He explained during cross-examination because of the way Mr Abarra generally talks and the way he behaves he took this to mean that Mr Abarra was referring to Ms Madanu’s breasts.164 Mr Abarra denied this allegation and gave evidence that he could only imagine he was referring to the size of Ms Madanu’s overalls.165

[121] Mr Rehman also gave evidence that Mr Abarra said words to the effect of “what do you think the size of her breasts are?” when referring to Ms Vasilije. 166 Mr Abarra denied this allegation. Mr Rehman’s evidence on this matter was at times confusing however I did not find him to be inconsistent, Mr Rehman was trying to explain the reference to breast was an insinuation by Mr Abarra. Mr Rehman had drawn an inference from what he perceived to be the mind-set of Mr Abarra. However, in my view whilst the evidence does not establish that Mr Abarra used the term “breast” he provided no explanation for why he would be referring to either Ms Madanu’s or Ms Vasilije’s overalls.

[122] Ms Souliyavong had a friendly relationship with Mr Abarra and had contacted him shortly after he was dismissed to find out what had happened. Ms Souliyavong held no animosity towards Mr Abarra and she gave uncontrived and frank answers, including that she would have no problem with Mr Abarra returning to work if “he changed his behaviour”. 167 Ms Souliyavong made a number of allegations against Mr Abarra which included asking her out after work, asking if she had good looking friends he could employ and asking questions about her sexual activities on days off.168

[123] Mr Abarra denied each of her allegations. 169 Ms Souliyavong made concessions during cross-examination about Mr Abarra asking her out and submitted that she could not be certain of the reasons that Mr Abarra was asking her to go out after work.170 Ms Souliyavong stood firm on her allegation that Mr Abarra asked her if she had a good looking friend he could employ.171 Mr Abarra’s evidence on this matter was that it was possible he said such a thing however it would have been a joke.172

[124] Ms Souliyavong’s evidence was that Mr Abarra had asked if she had “boom boom” on her day off and “did she do it on the weekend”. 173 According to Mr Abarra it was Ms Souliyavong who used the term “boom boom” when he told her he was exhausted. His evidence was that they laughed at the time and he would accept those sorts of comments from her.174

[125] Ms Souliyavong described an incident in which she heard Ms Szydlowski say to Mr Abarra, whilst holding a banana, “the banana is bigger than your one” to which Mr Abarra responded “my one is bigger.” 175 This was denied by Ms Szydlowski. However Mr Abarra recalled the exchange and his evidence was that it was Ms Ngo who made the comment and it was Ms Szydlowski who was holding the banana.176 In cross-examination Mr Abarra’s evidence was as follows;

“She said like, “Homer, my banana is bigger than your banana”, and I responded and said, Yes, it’s true, my banana fruit”, I add the work “fruit” to avoid dirty talk, I understood what she’s trying to say so I said “Yes, it’s true my banana fruit”, because that that time I was eating also a banana. So I add the work “fruit” to avoid they’re thinking-the group will think that-like dirty thing.” 177

[126] Ms Souliyavong also gave evidence that she saw Ms Ngo pretend to touch Mr Abarra’s penis. 178 Mr Abarra did not deny that this had occurred and gave evidence that at the time he had said something to the effect of “eh! Stop it” and everyone around giggled and laughed about it.179

[127] Both Ms Souliyavong and Ms Haciomer gave evidence about Mr Abarra’s behaviour. Ms Souliyavong described the environment created by Mr Abarra as “weird and dirty”. 180 It was put to Ms Haciomer that there was nothing sleazy or sexual about the way in which Mr Abarra interacted with her and she refused to agree.181

[128] TMCA relied on the photograph discussed above in support of their contention that Mr Abarra’s conduct was of an inappropriate and sexualised nature. Mr Abarra sought to provide an explanation as to why he had been photographed with his overalls down with two young female TFTs in the group room and said the young female TFTs had come to work with their sunglasses on because it was a hot day. He had his overalls a little undone due to the temperature. He submitted that they said “Homer, Homer, take a picture with us” which he first declined, however subsequently relented. Mr Abarra said that he took his overalls off because Ms Szydlowski’s boyfriend goes to the gym, and if you are going to the gym you like to show off your body, so he opened his overalls to show off his body. He was aware the photo was going on social media to just their friends but submitted that no one mentioned Facebook. 182

[129] Ms Vasilije’s evidence was that after repeatedly saying no to Mr Abarra’s advances for two to three months he backed off, however became quite cold to her at work and favoured the other TFTs. She submitted that when she asked him why he no longer spoke to her Mr Abarra said words to the effect of “the other girls get jealous”. 183 Mr Abarra’s evidence was that he recalled a conversation with Ms Vasilije in which she mentioned that he was spending less time with her and more time with the other women in the Sealer Group and that he had explained that he still spent time with her but that he was required to spend more time with newer workers while they were being trained.184

Abarra Allegation 8 – Sharing of the desk/chair

[130] TMCA alleged that Mr Abarra would share his chair in an inappropriate manner in the group room with the young female TFTs. Mr Abarra denied that he shared his chair in an inappropriate way and during cross examination stated “my chair is really bigger than this chair. It’s like a king-size chair” 185 and suggested he could fit one of the young female TFTs either side of him on the chair. Mr Abarra did not deny that he shared his chair with the young female TFTs and even expressed that, although he didn’t share the chair with the older women, he stated “I’d love to”.186 Mr Abarra did however deny that he had sat at his desk in a ‘straddling-type position’ with any female worker187 and denied that he had allowed the young female TFTs to sit on his lap whilst he was on the chair.188

[131] Mr Abarra’s evidence was when one of the young female TFTs would come to sit on his chair whilst he was on it he would push them aside and they would be sitting beside him on the chair. He submitted that even when he asked them to move away they wouldn’t get of the chair. His evidence was;

“It’s like sitting like that, yes? And then I’m sitting like that - all right? And then, “Homer, can I sit?” “No, go away.” So I say they pushed my lap - and they - because the chair is a wide chair. So they slip beside you and using the computer like something they’re charging. So sometimes Rebecca go away. Go smoke. That’s all. So like even my hands is like this to be away.” 189

“If it’s - you count the - numbers it happened maybe two times, three times - not really you’re thinking like every day happening.” 190

[132] Mr Abarra says that sharing the seat of his chair only happened on maybe two or three occasions, not every day. 191 Mr Abarra’s evidence was that the conduct was initiated by the young female TFTs and that he would put up with it for short periods of time.192 Mr Abarra gave a detailed description of one of the circumstances where he had shared his chair as follows:

“So because I was tired on that very day, you know, so normally I do my work out before going to work I do like legs workout so I was so tired during lunch time and I was sitting on my chair and like trying to sleep and have a rest, like have a nap, all right. Then when - then suddenly Rebecca comes and says, “Homer, can I sit?”, I said, “No”. She said, “Please”. I said, “No, get another chair - pull another chair if you want to use my table”. She said, “There’s no more chair available”. “Sorry, go to the other table”, and say “Please”, and then she push my legs here and then she sits on my – here in the corner and then I said it was really hands policy, so really I put my hands like this to show all the crew members that I…” 193

[133] Mr Abarra submitted that when the young female TFTs would sit in his chair he would say “please, please, please, go away”, and they would respond “come on Homer, I have a sore back, give me a break”. He submitted that he would then allow them to use the chair. However if he needed to use his computer urgently and they wouldn’t move out of his chair he would sit on the corner of his chair with his legs together. 194 In cross-examination Mr Abarra conceded that Ms Icbudak sat behind him in his chair and Ms Szydlowski would sit beside him on the side of the chair.195

[134] Contrary to Mr Abarra’s evidence, Ms Szydlowski and Ms Icbudak initially denied sharing the chair with Mr Abarra. However during cross-examination Ms Szydlowski conceded that she, Ms Toos and Ms Icbudak had sat on the arms of the chair whilst Mr Abarra was seated in the chair and she did not perceive this to be a problem. 196 Ms Szydlowski’s evidence was that she had sat on the arms of the chair and there were times when she told Mr Abarra to “move his legs because she had to reach her phone on the side”.197

[135] Contrary to Ms Icbudak’s evidence Ms Toos denied sitting on the chair or the arm of the chair with Mr Abarra, however her evidence was that she had seen Ms Icbudak and Ms Szydlowski sit on the chair with Mr Abarra. 198

[136] Ms Icbudak in cross-examination denied ever sitting on the chair with Ms Szydlowski and Mr Abarra, or ever seeing Ms Szydlowski in the chair. The following passage of transcript from Ms Szydlowski’s evidence was put to Ms Icbudak;

“….and I said, “that’s the chair that you talk about sitting on from time-to-time?” She says, “Yes;” “On the side of the chair, on the arm?” “Yes”. And then over the page at PN2877- “Yes;” And you would sit on it as well on the side of the chair on the arm ….” 199

[137] Ms Icbudak, even after hearing the evidence of Ms Szydlowski, continued to deny ever having sat in the chair or that she had seen events of that nature occur. 200 Further contrary evidence of Ms Szydlowski was put to Ms Icbudak before she conceded that she had sat on the arm of the chair in the view of other Sealer Group team members.201 After further cross-examination Ms Icbudak provided that she had only just “clicked” that the arm of the chair formed part of the chair.202

[138] Mr Rehman’s evidence was that he had witnessed Mr Abarra sharing his chair on numerous occasions with Ms Icbudak. 203 Although there were some language nuances Mr Rehman’s evidence was clear and provided some accounts of the numerous occasions in which he himself had observed Ms Icbudak sharing the chair with Mr Abarra.204

[139] Ms Souliyavong’s evidence was that she had witnessed Ms Szydlowski sitting on Mr Abarra’s lap and that Ms Toos would sit on the armrest. 205 Mr Abarra again denied that this conduct had occurred.

[140] During the site visit I observed Mr Abarra seated in his chair. Mr Abarra gave evidence it was the same chair he had described during the hearing. The chair was not by any means a “king size chair”, it was a standard office chair ordinarily designed to seat one average size person. Mr Abarra’s body took up most of the seated area and my observation was that there was not enough space beside Mr Abarra for another person to sit without their bodies encroaching on one another, not even the gracile young female TFTs.

Abarra Allegation 9 – Alone with female employees in the lunch room with the lights off for 30 minute periods

[141] Mr Rehman’s evidence was that on a number of occasions in 2015 he had witnessed Mr Abarra alone in the Group Room with Ms Icbudak or Ms Szydlowski with the lights off. He submitted that on each occasion Mr Abarra was alone with one of the two women for 30 minutes to one hour. 206

[142] His evidence was that when he asked Mr Abarra why they had been sitting in the Group Room with the lights Mr Abarra advised that they were “talking about general matters” and that the lights were off because it was “company policy to save energy”. 207

[143] Mr Abarra’s evidence was that this allegation was completely untrue and had never happened. He further submitted that Mr Rehman was not the type of person to bother himself with others’ business and would only raise things with him that concerned Mr Rehman directly. 208

[144] Ms Icbudak and Ms Szydlowski denied this allegation. 209

Abarra Allegation 11 – Allowing Ms Ngo to leave the line without permission and go home without a medical certificate

[145] TMCA alleged that Mr Abarra failed to promote fair treatment for all of his team by allowing Ms Ngo to leave the line without a medical certificate as he was aware that she had a special relationship with Mr Tainsh. The only evidence lead by TMCA in this regard was the finding made by Ms O’Brien QC. 210

[146] Mr Abarra’s evidence was that on a few occasions Ms Ngo had approached him requesting to leave early either due to illness or unforeseen carer obligations. He submitted that he always complied with the sick/carer’s leave requirements under the agreement and that he had no knowledge of any special relationship between Ms Ngo and Mr Tainsh. 211

[147] Ms Ngo’s evidence was that as a single mother with a young daughter she had had to leave work early on perhaps three or four occasions. During her pregnancy her evidence was that sometimes she would go home sick however provided a medical certificate on every occasion she was required to do so. She submitted that she always explained to Mr Abarra what was happening and, after she was interviewed by Ms O’Brien QC, she obtained further medical evidence for her absences. 212

Abarra Allegation 13 – Admission to Mr Kershaw regarding massaging employees on the line; Abarra Allegation 14 – Comment to Mr Kershaw about not having sex with female employees during work time but rather saving that for after hours

[148] Mr Kershaw’s evidence was that at the conclusion of the meeting with Mr Abarra on 27 January 2016, as he was escorting Mr Abarra to the gate, Mr Abarra said words to him to the effect of “I massage the girls on the line, but they like it, they ask me to do it” and “If I wanted to have sex with someone from work, I would save that for outside of Toyota”. 213

[149] Mr Abarra denied that he had made the comment that he had massaged the girls on the line and submitted that he had instead said words to the effect that “how could they complain, they even ask me for massages”. 214 His oral evidence was that because the young female TFTs asked him to massage them it could not be seen as harassment.215 Mr Abarra submitted that the comment referred to an incident in which he had been asked to massage Ms Icbudak, gave her a “half-hearted back massage of no longer than 2 or 3 seconds” or “a tap on the back” and made her go back to the line.216

[150] In relation to the second comment alleged to have been made, Mr Abarra submitted that Mr Kershaw misunderstood him. His evidence was that his comment was something along the lines of “if I was to have sex with someone, I would rather do it outside of Toyota”, intending to convey that if he wanted to have an extramarital affair he would do it outside of work and would not jeopardise his relationships with his work colleagues. 217

Credibility of the Witnesses

[151] Regrettably, I found Mr Abarra to be a witness of little credit. His evidence was self-serving and designed to deflect from his own unacceptable behaviour.

[152] The witnesses who were called to give evidence on Mr Abarra’s behalf were clearly protective of Mr Abarra. They were also largely careful with their words and unwilling to make concessions even in circumstances where appropriate admissions had been made by other parties.

[153] For instance, Ms Szydlowski’s evidence regarding the sharing of Mr Abarra’s chair was carefully constructed and her answers displayed an improbable naivety regarding her ‘misunderstanding’ of whether the arm of a chair formed part of the chair or not.

[154] Conversely, I found many of the witnesses for the Respondent to be of credit. Ms Talevski and Ms Vasilije were credible and convincing witnesses who made appropriate concessions and answered questions in a direct and quite frank manner.

[155] Mr Rehman similarly did not seek to answer questions strategically, he responded spontaneously and sought to clarify some of his expressions where he was not being understood. Whilst Mr Rehman would occasionally go off track and have to be directed to answer the questions I found him to be honest and genuinely appalled by the conduct of Mr Abarra. I do not agree with Mr Abarra’s submission that Mr Rehman changed his evidence on a number of occasions and gave self-serving evidence. I raised concerns during the hearing about Mr Rehman’s spoken English, however it was not that Mr Rehman had an issue understanding or speaking English, it was rather an issue of sentence construction and nuances in the English language.

[156] Even though I consider many of the answers provided by Mr Abarra’s witnesses to be unsatisfactory and unreliable this does not mean that I have necessarily rejected all of the evidence in respect of each of the allegations. Overall, where there is a contest between the evidence of Mr Abarra’s and TMCA’s witnesses, I have preferred the evidence of TMCA’s witnesses except where stated otherwise.

Was there a Valid Reason for the dismissal- s.387(a)

[157] In reaching my conclusion as to whether TMCA had a valid reason for the dismissal of Mr Abarra I have grouped the allegations that TMCA relied on into three categories being favourable treatment (Abarra Allegations 1, 4, 11 and 12), condoning prohibited conduct (Abarra Allegations 2 and 3) and inappropriate comments and behaviour towards female employees (Abarra Allegations 6 – 9, 13 and 14).

Favourable treatment

Abarra Allegation 1 – Relief from rotations

[158] Mr Abarra sought to rely on the rotation sheets as evidence that he had not favoured Ms Icbudak or Ms Szydlowski by allocating them to easier stations. The job rotation sheets are unreliable evidence. The evidence supports a finding that Mr Abarra could make changes to the scheduled rotations during the PM shift and that those changes are displayed on the job rotation board. There was no certainty that those changes were captured on the job rotation sheets. The evidence also supports a finding that Mr Abarra could intervene in rotations if someone was unwell or suffering from an injury and that he was entitled to use his discretion as to whether or not this could be done without a medical certificate.

[159] There is insufficient evidence to support a finding that Mr Abarra had abused this process. Whilst TMCA’s witnesses gave evidence that they perceived that there was a disparity as to which employees were allocated to which stations, they had also conceded that they were unaware as to whether any of the young TFTs had provided medical evidence or made complaints of injuries which would excuse them from working on certain stations.

[160] However there is sufficient evidence, supported by Mr Abarra’s own admission, to make a finding that Mr Abarra favoured Ms Icbudak and Ms Szydlowski by not placing them on station 5 because he thought it would be too hard for them. This finding on its own is not sufficient to make a finding that Mr Abarra favoured the group of young TFTs on the PM shift by giving them relief from rotations on the line without appropriate grounds.

Abarra Allegation 4 – Taking of overly lengthy toilet breaks

[161] In relation to the issue of toilet breaks, Ms Ngo and Ms De Leon had reasonable explanations for why they required more frequent toilet breaks than their work colleagues. It is plausible in the absence of such knowledge employees can form a perception that someone is being treated more favourably than themselves, however this was not the case. The evidence suggests Mr Tran had a greater level of visibility and control over who was taking excessive toilet breaks than Mr Abarra and I accept that if Mr Tran had concerns he would raise them with Mr Abarra for Mr Abarra to address during team meetings.

[162] The evidence supports a finding that Mr Abarra did raise the issue of toilet breaks at team meetings. Accordingly, I am not satisfied that this allegation has been substantiated.

Abarra Allegation 11 – Allowing Ms Ngo to leave the line without permission and go home without a medical certificate

[163] I am not satisfied that TMCA have provided sufficient evidence to support a finding that Mr Abarra allowed Ms Ngo to leave the line without permission and go home without a medical certificate. Whilst TMCA lead evidence in relation to Mr Tainsh’s conduct with Ms Ngo, there was no witness evidence to support the allegation that Mr Abarra did not comply with either Mr Tainsh’s direction or the sick/carer’s leave policy under the Agreement. Accordingly, I am not satisfied that this allegation has been substantiated.

Abarra Allegation 12 – Favourable allocation of overtime

[164] In reaching their conclusion that Mr Abarra had favoured a certain group of employees by granting them more non-production overtime than others TMCA relied on Ms O’Brien QC’s findings. Those findings in turn relied on the perception of the witnesses interviewed at the time of the investigation and were not drawn from any payroll records or other such data readily available to TMCA. Whilst I am satisfied that Mr Abarra had allocated filing work that did not form part of the overtime work that would be acceptable to be allocated, I am not satisfied that TMCA have been able to establish that Ms Icbudak, Ms Ngo, Ms Toos or Ms Szydlowski were given considerably more overtime than other employees working in the Sealer Group.

[165] Evidence was provided by both Mr Tainsh and TMCA of analyses conducted based on the data within their SAP records. Each party disputed the validity of the analyses conducted by the other. However, regardless of which document I would consider to be the most accurate, none of the documents support a finding that the young female TFTs were granted significantly more overtime than the other employees. Whilst it was clear from Mr Kershaw’s document that there was a significantly high rate of non-production overtime, from my reading of the documents tendered they do not support a finding that the young female TFTs were consistently granted this type of overtime at a higher rate than all other employees. Should TMCA have accurately reviewed their SAP records they may have reached the same conclusion.

Condoning prohibited conduct

Abarra Allegation 2 – Use of mobile phones

[166] Mobile phone usage was clearly an issue in the Sealer Group. It was clear that Mr Abarra liked to be seen as the “nice friendly guy” and consequently the evidence supports a conclusion that he was reluctant to take any serious action in relation to blatant breaches of the mobile phone policy.

[167] Whilst numerous witnesses gave evidence that Mr Abarra would address mobile phone usage at team meetings, and Mr Abarra’s own evidence was that he would tell employees to put their phones away if they were observed using them on the line, Mr Abarra’s actions appear to have been no more than tokenistic. I am not satisfied that his actions were sufficient to discharge his duties in enforcing the mobile phone policy. Mr Abarra had a responsibility as Group Leader to ensure that the policy was adhered to yet he failed to institute any disciplinary action to address what was clearly a rampant problem within the Sealer Group.

[168] Accordingly, I am satisfied that Mr Abarra failed to appropriately monitor and enforce the requirement that team members not use mobile phones while working on the line.

Abarra Allegation 3 – Wearing of PPE

[169] There appeared to be three main types of non-compliance with the TMCA PPE policy – rolling up of the sleeves, overalls being removed in the Group Room and the wearing of PPE in a fashion that was inappropriate in the workplace causing offence to others. In relation to the first two types, I do not consider that there has been a breach of TMCA’s safety requirements.

[170] I accept the evidence that there are some occasions on which for quality control purposes, such as when applying the sealer on station 2, employees may have been required to roll up their sleeves. I also accept the evidence of Mr Abarra and Mr Kershaw that it was preferable for employees to remove their overalls whilst eating lunch in the Group Room to avoid oils and food being transferred to the production line causing contamination.

[171] However, I am also satisfied that certain employees would wear their PPE in a fashion that was inappropriate in the workplace causing offence to others, and that Mr Abarra permitted this. Whilst it is unclear as to whether there is a policy regarding what garments should be worn underneath the overalls, it was Mr Abarra’s responsibility as Group Leader to ensure that PPE was worn in a way that did not cause either a safety concern or offence to others in the workplace. Mr Abarra’s own evidence was that he had witnessed employees wearing PPE with their underwear clearly visible and took no steps to address this behaviour other than offering tape for employees to close the gaps.

[172] Numerous witnesses had observed similar inappropriate wearing of PPE and I accept Mr Rehman’s evidence that he had made a complaint about this to Mr Abarra. I also accept his evidence of Mr Abarra’s response to this complaint and attitude towards this conduct. Given my findings below as to Mr Abarra’s other inappropriate conduct, I preferred the evidence of Mr Rehman in this regard.

[173] I am satisfied that Mr Abarra engaged in conduct permitting employees to wear their PPE in a manner that was offensive to others in the workplace and he did not exercise his management authority in a way that prevented those events from occurring. Accordingly, I am satisfied that the allegation that Mr Abarra permitted a group of TFTs to wear their PPE other than in accordance with TMCA’s safety requirements is substantiated.

Inappropriate comments and behaviour

Abarra Allegation 6 – Excessive sexual remarks, personal remarks and remarks otherwise inconsistent with position as a supervisor

[174] Ms Souliyavong’s evidence is that Mr Abarra had created a “weird and dirty atmosphere at work.” 218 In my view the evidence supports such a finding. The evidence establishes Mr Abarra has a willingness to allow conversations of an intimate nature to occur in the workplace. By allowing behaviours of such a nature to take place it is evident that the working environment, although not hostile, was uncomfortable for some and at the very least was an unhealthy work environment. I am persuaded that it was not uncommon for Mr Abarra to make comments of either a personal nature or have discussion about the appearance of the young women under his leadership. The inappropriate comments Mr Abarra would make about the appearance of the female employees were frequent and had the effect of creating a workplace culture that did not fit with the Toyota Way.

[175] Mr Abarra sought to justify some of his comments by stating he was either joking, or that he was just a friendly person and that his comments were flattering to employees and they weren’t just limited to Ms Icbudak or Ms Szydlowski.

[176] Mr Abarra also made submissions that because the young female TFTs didn’t object to his comments then they were not offensive and therefore could not be a breach of the Behavioural Standards. I do not consider this to be a plausible argument. Mr Abarra’s comments were largely directed towards a group of young female employees who were on temporary fixed term contracts who were reliant on Mr Abarra’s approval to obtain further contracts. I do not consider the young TFTs were in a position to express any objection given the disproportionality between the role and authority of Mr Abarra and their own. Further, the mere absence of an objection does not provide a justifiable excuse for Mr Abarra’s behaviour.

[177] It is clear from Mr Abarra’s evidence he was amused by discussions of a sexual nature and did nothing to prevent them from taking place. 219 I am persuaded by the evidence that Mr Abarra made inappropriate comments towards young female employees. In addition to the evidence of Ms Icbudak, Ms Szydlowski, Mr Tran and Ms Iwunze, Mr Abarra’s own evidence has led me to this conclusion. Mr Abarra used language during the hearing of a nature that showed he held an opinion that women could be described by using overly familiar language, such as when he chose to characterise women of a shorter stature as “cute people”.

[178] Mr Abarra denied making some of the more sexually explicit comments, such as commenting on the size of his co-worker’s breasts and his comments to Ms Vasilije about her piercings. Mr Abarra tried to explain away some of these comments as misunderstandings or by attributing blame for the nature of the discussions to the employees in question. I do not accept Mr Abarra’s evidence in this regard and prefer the evidence of Mr Rehman and Ms Vasilije. Whilst I accept Mr Abarra did not use the word “breast” I accept that Mr Rehman had understood that this is what Mr Abarra was referring to. Mr Abarra’s uncontested conduct of overly familiar compliments to female employees leads me to prefer the evidence of Mr Rehman on this matter. I consider Mr Abarra to have fostered an environment that permitted discussions of an overly personal and sexualised nature to take place and consider that he engaged in such discussions readily with his subordinates without regard to his position as Group Leader.

[179] Whilst I am of the view that it is acceptable behaviour to compliment or critique someone in the workplace on their work performance, compliments about someone’s physical appearance need to be considered carefully in the context as a whole. I have considered the conduct of Mr Abarra in the context of his role as Group Leader and the authority that comes with that role and his stated reasons for making those comments. The comments made by Mr Abarra to the young female TFT employees in my view were in fact a rather blatant form of benevolent sexism which has no place in the workplace. Therefore Mr Abarra had not conducted himself in a manner that would be mutually respectful and breached his supervisory obligations to promote team harmony, TMCA’s Workplace Relationships Policy and the Workplace Agreement including the Equal Opportunity Standards of Behaviour and the ‘Toyota Way’.

[180] Accordingly, I am satisfied that the allegation that Mr Abarra’s conduct towards female employees on the line was characterised by excessive sexual remarks, personal remarks, and remarks otherwise inconsistent with his position as a supervisor is substantiated.

Abarra Allegation 7 – Importuning female employees and giving them the ‘silent treatment’ if the advances were refused

[181] Whilst I am satisfied that, in conjunction with the conduct described above, Mr Abarra’s behaviour was perceived by some as ‘making advances’, I am not satisfied that there is sufficient evidence to substantiate the allegation that Mr Abarra was involved in importuning female employees working on the line. This is particularly so in light of the findings I have made regarding the allegations of the provision of favourable treatment by Mr Abarra.

[182] Whilst I accept Ms Vasilije’s submission that her and Mr Abarra’s communication diminished, I am unable to conclude that this was due to any spurned advances. Accordingly, I am not satisfied that this allegation is substantiated.

Abarra Allegation 8 – Sharing of the desk/chair

[183] I am persuaded by the evidence before me that Mr Abarra inappropriately shared his chair with certain female employees whilst he was also occupying the chair. Whilst the evidence does not establish that Mr Abarra had specifically invited Ms Icbudak and Ms Szydlowski to sit directly on his lap, I am persuaded by the evidence that there has been occasion where at least Ms Szydlowski has attempted to do so and that this happened in the presence of other team members. There have also been on occasion circumstances where Mr Abarra would have young female TFTs, whilst not actually sitting on his lap, sitting on the seat of his chair with him. Consistent with the evidence before me, my observation was that in order for the young female TFTs to be sitting on the corner of the chair they would essentially be sitting partially on Mr Abarra. I found Mr Abarra’s evidence on this issue to be implausible.

[184] I am also satisfied that there were occasions when Mr Abarra allowed young female TFTs to sit beside him on the arms of the chair whilst he was seated in the chair. My observation of the chair lead me to the conclusion that the presence of a young female TFT seated on the arm of the chair whilst Mr Abarra was seated on the chair would be conduct that would be and was found to be offensive to those who would be in the proximity to witness such conduct.

[185] It is not “mutually respectful” behaviour for a Group Leader to have young female TFTs sitting on his chair with him, neither is it “mutually respectful” behaviour for a Group Leader to have young female TFTs sitting on the arm of the chair or in front of him on the chair whilst he is occupying the chair. Furthermore it is simply inconceivable in a workplace in the current era that behaviour of this nature by a Group Leader, who has the responsibility of leading a group of influential young employees regardless of gender, would be condoned. It is not enough to say that the young female TFTs behaved in this manner and therefore Mr Abarra cannot be held responsible. Mr Abarra clearly did not exercise his management authority to stop the conduct from occurring, instead by his lack of action he condoned the behaviour and allowed it to continue to occur.

[186] By engaging in such conduct Mr Abarra has breached supervisory obligations to promote ‘team harmony’, TMCA’s Workplace Relationships Policy and the Workplace Agreement including the ‘Toyota Way’, and had fostered an environment where overly familiar sexualised conduct was encouraged from the young female TFTs causing discomfort and offence to other employees in the Sealer Group.

[187] Accordingly, I am satisfied that this allegation is substantiated.

Abarra Allegation 9 – Alone with female employees in the lunch room with the lights off for 30 minute periods

[188] Whilst I found Mr Rehman to be a credible witness, I note that there was a large amount of contradictory evidence in relation to this allegation. On the basis of the evidence before me, I am not satisfied that there is sufficient evidence to establish to the requisite standard that the conduct occurred for the reasons alleged by TMCA.

Abarra Allegation 13 – Admission to Mr Kershaw regarding massaging employees on the line; Abarra Allegation 14 – Comment to Mr Kershaw about not having sex with female employees during work time but rather saving that for after hours

[189] Mr Kershaw and Mr Abarra both gave evidence in relation to the comments alleged to have been made on 27 January 2016. I preferred the evidence of Mr Kershaw. I did not get the impression that Mr Kershaw was providing any misleading evidence. I found him to be forthright, concise and willing to make reasonable concessions where he believed his witness statement or recollection were insufficient or incorrect.

[190] Conversely, I found the explanations offered by Mr Abarra as to the intended meaning of his comments to be overwhelmingly self-serving.

[191] I am satisfied that Mr Abarra made comments to the effect that he massaged female employees on the line. Indeed, Mr Abarra admitted to engaging in such conduct, albeit deflecting the responsibility for the incident onto Ms Icbudak. I am satisfied that allegation 13 is substantiated.

[192] However, I am unable to find that the allegation that Mr Abarra said words to the effect that he “did not have sex with female employees during work time but saved that for after hours” is substantiated. Mr Kershaw conceded in cross-examination that Mr Abarra did not say “if I wanted to have sex with someone from work” and submitted that that was his inference he had drawn based on the context of the whole conversation.

Conclusions as to valid reason

[193] There were several reasons given for the dismissal of Mr Abarra however it is well established that it is not necessary that all of those reasons be substantiated in order to make a finding that there was a valid reason for the dismissal.

[194] I was not persuaded on the basis of the evidence before me that the conduct described in allegations 1, 4, 7, 9, 11, 12 or 14 occurred. However I was persuaded, to the requisite standard, that the conduct described in allegations 2, 3, 6, 8 and 13 did occur. Given the gravamen of the conduct that I have found to have occurred, I am satisfied that TMCA had a valid reason for the dismissal of Mr Abarra.

Notification of the Valid Reason –s.387(b) and an Opportunity to Respond –s.387(c)

[195] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 220, and in explicit221 and plain and clear terms.222 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[196] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 223

[197] It was not disputed that TMCA notified Mr Abarra of the reasons for the dismissal and provided him with sufficient opportunities to respond. The letters provided to Mr Abarra set out in sufficient detail the allegations against him and the reason for dismissal was notified to him in the termination letter on 3 June 2016.

Unreasonable Refusal of a Support Person – s.387(d)

[198] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.224 With respect to this consideration, the Explanatory Memorandum states:

[199] It was not contended that TMCA had refused to allow Mr Abarra to have a support person present. Mr Abarra had a union representative present at his investigation interview and at each of the meetings with TMCA.

Warnings regarding Unsatisfactory Performance – s.387(e)

[200] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.226 Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct.227 The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.228

[201] Mr Abarra submits that the fact that he did not receive any warnings prior to his dismissal militates in favour of a finding that the dismissal was unfair. He submits that he should have received warnings in relation to allegations 1, 2, 3, 4, 11 and 12 because they are matters about his performance as a supervisor/manager. 229

[202] There is not always a clear line between matters of misconduct and matters of poor performance. However one could say that performance issues are usually out of the control of the employee and are accompanied by a skill deficit. Whereas misconduct is often accompanied by an employee’s poor attitude, disregard for company policies and procedures or deliberate behaviours contrary to what would normally be accepted in the workplace.

[203] I do not agree with Mr Abarra’s contention. I found Mr Abarra’s alleged conduct in matters 1, 2, 3 and 11 were more a case of Mr Abarra’s attitude rather than his lack of knowledge about what was required of him. His conduct was deliberate and created an unhealthy environment in the workplace and the matters that I have found to be substantiated, which formed the valid reason for Mr Abarra’s dismissal, were matters of misconduct and not poor performance.

Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(g)

[204] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.230 Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.231

[205] The submissions on this consideration were that this is a neutral factor in this matter. TMCA is an organisation with considerable resources with dedicated human resources specialists, the size of TMCA’s enterprise would have no adverse impact on the procedures followed in effecting the dismissal. There was no absence of a dedicated human resources person and accordingly the consideration in s.387 (g) has no application.

Other Relevant Matters – s.387(h)

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

[207] It is well accepted that a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for the dismissal. In B, C and D v Australian Postal Corporation 232 the Full Bench stated:

“[41] …That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.

[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:

(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]

(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]”

[208] Whether a dismissal is harsh, unjust or unreasonable is to be judged objectively, however relevant factors that can be taken into account in determining harshness clearly include matters personal to the employee. Further, the failure of any employee to comply with the policies and procedures of an employer (which may have been found to be a valid reason to dismiss) does not prevent the Commission from finding that the dismissal was harsh, unjust or unreasonable.

[209] Mr Abarra contends that the dismissal was unfair because it was harsh. He submits the circumstances in his case were harsh because of the impact of the dismissal on his personal circumstances, the long unblemished career that he had prior to the dismissal, and because it was disproportionate to the gravity of the misconduct of which he was accused.

[210] Mr Abarra submits that had he not been dismissed he would have been entitled to receive a substantial redundancy package, and accordingly the dismissal, aside from ending his employment, had a very serious financial consequence. In addition to this Mr Abarra would have been entitled to participate in the Drive Program, a unique program which is designed to assist employees by facilitating their career transition by the company promoting further education and providing career counselling. Mr Abarra had intended to use the program, however due to his dismissal he is unable do so. 233

[211] Mr Abarra submits that missing out on his redundancy entitlements has meant that he has missed out on entitlements aimed at protecting employees from some of the harsh impacts of the automotive industry coming to an end. 234 I note that there is no submission that TMCA’s investigation or the dismissal of Mr Abarra was triggered by an attempt to avoid his pending redundancy.

[212] Mr Abarra further submits that his wife, who contributes to the family income, is due to have an operation soon and thus he is unsure of the financial impact on the family this will have. 235

[213] Further Mr Abarra submits that as a 50 year old man he is not likely to find comparable work in the future due to the death of the industry and that the above factors together render the dismissal unfair. 236

[214] I have considered each of the above circumstances raised by Mr Abarra however I am not persuaded that the mitigating circumstances outweigh the seriousness of the conduct I have found to have been substantiated. Mr Abarra was responsible for a group of vulnerable young female employees whose future employment was reliant on his approval. He was responsible for developing and encouraging an environment in which inappropriate behaviour was expected and encouraged and even at the hearing demonstrated a complete lack of remorse or recognition of the seriousness of his conduct. I do not consider that his dismissal was harsh in those circumstances.

Conclusion

[215] Having considered each of the matters specified in s.387 of the Act, I am satisfied Mr Abarra’s dismissal was not harsh, unjust or unreasonable. Accordingly, I find that the dismissal was not unfair.

[216] The application is therefore dismissed. An order 237 to that effect will be published with this decision.

COMMISSIONER

Appearances:

Mr Y. Bakri, Counsel for the Applicant;

Mr P. Wheelahan, Counsel for the Respondent;

Hearing details:

Melbourne

21, 22, 23, 24, 28, 29, 30 November

14, 15 December

31 January

22 February

2016 to 2017

Final written submissions:

Applicant: 14 March 2017

Respondent: 7 April 2017

Applicant Reply: 18 April 2017

Printed by authority of the Commonwealth Government Printer

<PR608444>

 1   Exhibit R4, annexure HB-1

 2   Exhibit R9, annexure CES-18

 3   Ibid. annexure CES-11

 4   Ibid. annexure CES-11

 5   Transcript PN4393

 6   Respondent’s Closing Submissions, [7]

 7   Transcript PN4241

 8   Fair Work Act (Cth) s.591

 9   Pearse v Viva Energy [2017] FWCFB 4701 at [14]

 10   Gelagotis v ESSO [2017] FWC 2398

 11   Exhibit J1

 12   Ibid. [9]

 13   Ibid. [11]

 14   Ibid. [12] – [13]

 15   Exhibit R1, Appendix 5, 2.6

 16   Ibid. Appendix 5, 2.6.1

 17   Exhibit R9, [14]

 18   Ibid. [18] – [19]

 19   Exhibit J1, [14]

 20   Exhibit A2, annexure HA-1

 21   Ibid. annexure HA-2

 22   Ibid. annexure HA-3

 23   Ibid. annerxure-HA-4

 24   Ibid. [18]

 25   Exhibit J1, [20] – [21]

 26   Exhibit A2, annexure AH-5

 27   Exhibit J1, [23]

 28   Exhibit R9, annexure CES-12, CES-13, CES-14

 29   Ibid. annexure CES-15

 30   Ibid. annexure CES-16

 31   Ibid. annexure CES-18

 32   Exhibit J1, [30]

 33   Exhibit R9, annexure CES-20

34 (1995) 185 CLR 410.

35 Ibid. at 465

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

 37   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

 38   Ibid.

 39   King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

 40   Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201

 41   Ibid.

 42   Briginshaw v Briginshaw (1938) 60 CLR 336

 43   Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 at 449-50

 44   Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363 per Dixon J

 45   Ibid. at 362 per Dixon J

 46   Exhibit R1, Clause 8

 47   Exhibit R4, [10]

 48   Homer Abarra’s Reply Submissions, [7] – [8]

 49   Respondent’s Closing Submissions, [12]

 50   Exhibit A2, annexure HA-5

 51   Transcript PN6565-6568

 52   Transcript PN6565-6568, Transcript PN7702

 53   Transcript PN7708-7713, Transcript PN8363-8367

 54   Transcript PN430

 55   Transcript PN2685

 56   Transcript PN853

 57   Exhibit A2, [32]

 58   Transcript PN872-874

 59   Transcript PN917

 60   Exhibit R13, [55] -[57]; Exhibit R19, [34]; Exhibit R22, [43] – [45]; Exhibit R17, [34] – [35]; Exhibit R11, [24]

 61   Transcript PN331

 62   Transcript PN328

 63   Transcript PN1199

 64   Transcript PN92 - 172

 65   Exhibit A1

 66   Ibid.

 67   Ibid.

 68   Transcript PN152

 69   Transcript PN677

 70   Transcript PN677

 71   Transcript PN677

 72   Transcript PN677

 73   Exhibit R12, [24]

 74   Transcript PN6063

 75   Exhibit R17, [37]

 76   Exhibit R13, [61]

 77   Ibid. [57]; Exhibit R12, [25]; Transcript PN7751-7752

 78   Exhibit R13, [60]

 79   Transcript PN169

 80   Exhibit R13, [55]

 81   Transcript PN139

 82   Transcript PN135-136,

 83   Exhibit A37, [4]

 84   Exhibit A26, [5]

 85   Transcript PN452-453

 86   Exhibit A2, [39] - [40]

 87   Transcript PN1204

 88   Exhibit A31, [5]; Transcript PN197

 89   Exhibit R13, [65]

 90   Exhibit A26, [8]; Exhibit A37, [6]; Exhibit A31, [4]

 91   Exhibit R13 [63]

 92   Ibid. [65]

 93   Transcript PN197

 94   Transcript PN197

 95   Exhibit A2, [48]

 96   Transcript PN4935- 4939

 97   Transcript PN735

 98   Transcript PN303

 99   Transcript PN207

 100   Transcript PN203

 101   Exhibit R15, annexure AV1

 102   Transcript PN2868

 103   Exhibit R17, [44]

 104   Transcript PN7506

 105   Exhibit R22, [40]

 106   Exhibit R13, [25] – [30]

 107   Exhibit A3, [51]

 108   Exhibit R13, [26]

 109   Exhibit A38, [6]

 110   Exhibit R19, [29] – [30]

 111   Transcript PN830

 112   Exhibit R2, [48]

 113   Ibid. [49]

 114   Exhibit R13, [69] – [71]; Exhibit R15, [38]; Exhibit R17, [38]Exhibit R19, [37]

 115   Transcript PN6757; Transcript PN7321; Transcript PN7764; Transcript PN7980

 116   Transcript PN416-424

 117   Transcript PN173

 118   Exhibit A28, [5]

 119   Exhibit A33, [5]

 120   Exhibit A2, [96] – [97]

 121   Transcript PN182

 122   Transcript PN181

 123   Transcript PN184-186

 124   Exhibit R22, [34]; Exhibit R12, [26] - [33]

 125   Exhibit A2, [99]

 126   Exhibit R6, [97]; annexure GK-16

 127   Exhibits A40-A44

 128   Exhibit A47

 129   Transcript PN5590- 5592; Transcript PN4603

 130   Exhibit A57, Exhibit A58, Exhibit A59

 131   Exhibit R21

 132   Transcript PN8106

 133   Transcript PN8106 –8110

 134   Transcript PN806-809

 135   Transcript PN840

 136   Transcript PN845

 137   Transcript PN1215

 138   Transcript PN830

 139   Transcript PN1234-1238

 140   Transcript PN1241

 141   Transcript PN1288-1234

 142   Transcript PN1238

 143   Transcript PN845

 144   Transcript PN845

 145   Exhibit R15, [15]

 146   Transcript PN819

 147   Transcript PN1304-1307

 148   Transcript PN1330

 149   Exhibit R15, [15]

 150   Transcript PN818-823

 151   Exhibit A3, [74]

 152   Transcript PN271-272

 153   Transcript PN277

 154   Exhibit A31, [9] – [10]

 155   Exhibit A26, [14] – [15]

 156   Exhibit A25, [3]

 157   Transcript PN2618 - 2627

 158   Exhibit A25, [3], Transcript PN2609- 2619

 159   Exhibit A23, [3]

 160   Transcript PN6014

 161   Transcript PN6054-6055

 162   Transcript PN6413

 163   Exhibit R13, [18]

 164   Transcript PN6458; Exhibit A3, [30],

 165   Exhibit A3, [30]

 166   Exhibit R13, [18]

 167   Transcript PN8004

 168   Exhibit R19, [10] - [18],

 169   Exhibit R3, [43]

 170   Transcript PN7873-7877

 171   Transcript PN7883-7885

 172   Exhibit A3, [45]

 173   Exhibit R19, [16]

 174   Exhibit A3, [47]

 175   Exhibit R19, [25]

 176   Exhibit A3, [51]

 177   Transcript PN1454

 178   Exhibit R19, [25]

 179   Exhibit A3, [52]

 180   Exhibit R19, [23]

 181   Transcript PN7692

 182   Transcript PN1481-1484

 183   Exhibit R15, [20]

 184   Exhibit A3, [82]

 185   Transcript PN1469

 186   Transcript PN761

 187   Exhibit A2, [78]

 188   Transcript PN771

 189   Transcript PN1419

 190   Transcript PN1421

 191   Transcript PN1419

 192   Transcript PN1473-1476

 193   Transcript PN1466

 194   Transcript PN1476

 195   Transcript PN773-776

 196   Transcript PN2891-2896

 197   Transcript PN2877

 198   Transcript PN3310- 3313

 199   Transcript PN3789

 200   Transcript PN3790

 201   Transcript PN3794-3802

 202   Transcript PN3794-3802

 203   Exhibit R13, [33]

 204   Transcript PN6648

 205   Exhibit R19, [25]

 206   Exhibit R13, [38]

 207   Exhibit R13, [39] – [40]

 208   Exhibit A3, [36]

 209   Exhibit A37, [14]; Exhibit A26, [22]

 210   Exhibit R9, CES-11

 211   Exhibit A2, [88] – [90]

 212   Exhibit A28, [10]

 213   Exhibit R6, [37]

 214   Exhibit A2, [103]

 215   Transcript PN1395

 216   Exhibit A2, [103]; Transcript PN1406

 217   Exhibit A2, [105]

 218   Exhibit R19, [23]

 219   Exhibit A3, [47]

 220   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

 221   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

 222   Previsic v Australian Quarantine Inspection Services Print Q3730

 223   RMIT v Asher (2010) 194 IR 1 at 14-15

224 Fair Work Act 2009 (Cth) s.387(d)

225 Explanatory Memorandum, Fair Work Bill 2009 (Cth) [1542]

226 Fair Work Act (Cth) s.387(e)

227 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237

228 Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie [2012] FWA 2 [58]

 229   Homer Abarra’s Closing Submissions (Parts B and C), [9] – [10]

230 Fair Work Act (Cth) s.387(f)

231 Fair Work Act (Cth) s.387(g)

 232   [2013] FWCFB 6191

 233   Homer Abarra’s Closing Submissions (Parts B and C), [15] – [16]

 234   Ibid. [17]

 235   Ibid. [19]

 236   Ibid. [22]

 237   PR608445