DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Moran
v
KDR Victoria Pty Ltd T/A Yarra Trams
(U2018/2149)

Application for an unfair dismissal remedy; investigation of allegations; whether confidentiality terms applied; whether breach of confidentiality requirement; dishonesty; recording of conversations; whether there was a valid reason for dismissal; notification of reason and opportunity to respond; dismissal unfair.

Introduction

[1] On 1 March 2018, Mr Mark Moran (Applicant) applied under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. The Applicant commenced employment with the Melbourne & Metropolitan Tramways (predecessor to Yarra Trams) in 1979, initially as a tram conductor at the Brunswick depot. 1 Following several position changes, the Applicant, in about 2000, was transferred to Southbank as a Depot Starter employed by KDR Victoria Pty Ltd T/A Yarra Trams (Respondent). He has worked as a Depot Starter/Officer Production at that location since that time.2 The Applicant was dismissed by the Respondent on 19 February 2018 which was confirmed by letter dated 22 February 2018, effective immediately.3 At the time of his dismissal, Mr Moran had been employed by Yarra Trams and its various predecessors for nearly four decades. He was 59 years of age.

[2] Turning first to deal with the initial matters which must be decided before the merits of an application are considered. 4 These matters are not in dispute and I find that:

•  The application was made within the prescribed time pursuant to s.394(2) of the Act;

•  The Applicant was, at the time of his dismissal, protected from unfair dismissal within the meaning of s.382 of the Act;

•  The Respondent was not a small business employer within the meaning of the Act and so the Small Business Fair Dismissal Code does not apply; and

•  The dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy within the meaning of s.389 of the Act.

[3] For the reasons which follow, I have concluded that the Applicant’s dismissal was unfair.

Background, factual context and factual findings

[4] As indicated earlier, the Applicant was employed by the Respondent and its predecessors from 1979 to 19 February 2018. The Applicant was advised of his dismissal on 19 February 2018 and the dismissal was confirmed by letter dated 22 February 2018 (Termination Letter). 5 The Termination Letter confirmed the Respondent’s decision to terminate the Applicant’s employment on the basis of serious misconduct. The serious misconduct was said to be constituted by conduct involving breaches of confidentiality and conduct throughout the investigation, and specifically his dishonesty.6 The Respondent informed the Applicant that he was not entitled to notice of termination or any payment in lieu or payment in respect of unused long service leave but it would nonetheless make a payment to him in lieu of the long service leave.7

[5] The Respondent says that there are two valid reasons for the Applicant’s dismissal. 8 The first relates to the conduct said to be misconduct identified in the Termination Letter in that it is contended that the Applicant deliberately and repeatedly breached a requirement that he keep the investigation confidential. Further, it is said that the Applicant lied to, or at least misled his supervisor about breaches of the requirement.9 The second emerged during the course of the hearing of the application when it became apparent that the Applicant had recorded a number of meetings with various employees of the Respondent and some of his union colleagues.10 It is said that this conduct, which was not known to the Respondent at the time of the dismissal or the time that these proceedings and the hearing commenced, constitutes a valid reason for the dismissal because the conduct goes to the heart of the employment relationship. The Applicant’s position as Officer Production was a senior position which required the trust of both his supervisors and his colleagues.11

[6] On or about 27 or 28 September 2017, during a meeting with the Manager of Lines, Liz Reddy, the Applicant was informed that a complaint was lodged by an individual against him and as a consequence the Respondent would be conducting an investigation. 12 He was not advised what the complaint was about nor was he given any particulars. The Applicant was asked to sign a confidentiality agreement but did not do so as he had not been provided with any detail about the complaint.13 Mr Noel Augustus, the Respondent’s Team Manager Production was also present at the meeting.14 Mr Augustus is no longer an employee of the Respondent and ceased to be so well before the hearing of this application commenced. On 18 October 2017, the Applicant was told by Ms Reddy that the investigation would be conducted by the Victorian Chamber of Commerce and Industry (VCCI).15 The Applicant was again asked to sign a confidentiality agreement and again did not sign the confidentiality agreement provided to him at the meeting as he was not given any details about the nature of the complaint that was the subject of the investigation and his representative was on annual leave.16

[7] On 24 October 2017, the Applicant was informed that the investigator would be Amy Bell (the VCCI investigator) and that she would like to speak with the Applicant outside working hours. 17 On 26 October 2017, during a discussion with Mr Augustus about certain interactions with Mr Marius Ciocan, a Traffic Officer Driver, the Applicant was informed that the person who had lodged the formal complaint against him was Mr Ciocan.18 He was not given any detail about the complaint. Ms Reddy gave evidence that it was on 18 October 2017 when the Applicant was informed that it was Mr Ciocan who had made the complaint.19As will become apparent later, nothing turns on this discrepancy in the evidence.

First meeting with the VCCI investigator

[8] On 10 November 2017, the Applicant agreed that he would meet with the VCCI investigator on 14 November 2017 and at which John Anderson would be his support person. 20 On 14 November 2017, the Applicant and Mr Anderson attended a meeting with the VCCI investigator. At the meeting, the VCCI investigator said that the investigation concerned a complaint made by Mr Ciocan, that she had taken a statement from Mr Ciocan and that she would go through each allegation with the Applicant, take notes of his responses and she would subsequently send the notes to the Applicant after the meeting.21

[9] The Applicant explained to the VCCI investigator that he had not been told about the substance of the allegations and at that point was given a document setting out eight allegations. 22 After reviewing the allegations, the Applicant requested that he be given time to consider his response and to provide a response in writing. This request was granted. After the meeting, the Applicant received a document from the VCCI investigator outlining the allegations in order for the Applicant to provide written responses.23

[10] The allegations the subject of the complaint made against the Applicant as set out in the document 24 were as follows:

“The Allegations

It is alleged during the period in or around April 2016 to September 2017, you have engaged in inappropriate and/or unreasonable behaviour towards Marius Ciocan, namely:

PARTICULAR 1

Between the period April2016 to June 2016 you:

(a) refused to provide any training or assistance to Marius Ciocan in his new role of Traffic Officer/Driver; and

(b) you told Marius Ciocan to leave the Starter's Office.

…

PARTICULAR 2

After Marius Ciocan completed his formal TOD training in or around June 2016 you said words to the effect of:

(a) you don't belong in this position;

(b) you are unwelcome here; and

(c) in the old days these promotions were given with the union approval and you should consider yourself lucky as you would have opposed the promotion.

…

PARTICULAR 3

Between the period in or around June 2016, to September 2017, when you are finishing a shift and handing over to Marius Ciocan, you have:

(a) closed the radios;

(b) closed the intercom;

(c) left the landline telephone off the hook;

(d) removed and/or hid important documents including "the block", "name order" and "table order"; and/or

(e) failed to provide any handover or explanation in relation to missed shift issues.

…

PARTICULAR 4

On or around September 2017, when in the Starter's office with Marius Ciocan and John Goats (sic), Marius said the two E Class training trams needed to be sanded every day. You responded by telling Marius to "shut up". You went on to say sanding the training trams every day was "stupid".

…

PARTICULAR 5

During the CSDO E Class Training organised by Marius Ciocan and conducted in September 2017 you used the radio to instruct drivers they should contact you as the Starter and not Marius if they had questions about their tables/routes.

…

PARTICULAR 6

On Saturday 16 September 2017, in the presence of Mitch Chatelier, Milan Gambiroza and Nobertoluis Sassounian, you said words to the effect of "who the fuck is Marius".

…

PARTICULAR 7

On or around Tuesday 19 September 2017, you marked the training sessions for Montgomery, Mann, Porter, Nguyen and Quill "cancelled".

…

PARTICULAR 8

On Sunday 17 September 2017, when Marius Ciocan asked you to speak to Driver Spaniol, you shouted "I don't want to speak to anyone, tell her to call Fleet Ops".” 25

[11] On or about 17 or 18 November 2017, the Applicant says he spoke with co-workers Mr John Goates and Mr Mitch Chatelier in relation to whether they could recall the events particularised in allegations 4 and 6. The Applicant said that neither knew what he was talking about nor about the alleged incidents. 26 Mr Chatelier gave evidence that he recalls the Applicant asking him “Have you been called for the inquiry?” and he responded “no” as he was not aware at that stage that an investigation was being conducted.27 Mr Chatelier denies that the Applicant asked him to recall an incident when the Applicant said “who the fuck is Marius”.28 I will return to this disputed account later. The conversation forms part of that which is said to constitute a valid reason relating to a breach of confidentiality.

[12] On 21 November 2017, the Applicant was approached by manager Mr Shaun Harper who told the Applicant that there had been “another breach” of the Respondent’s EEO policy. On Mr Harper’s account the Applicant was asked whether he had spoken to other employees about the investigation. 29 The Applicant says he was asked whether he had spoken to Mr Chatelier about the investigation.30The Applicant on his account says that he responded by stating that he could not recall but at the time was “caught completely off-guard” and did not consider that he had “breached any confidentiality requirements”.31 Mr Harper says that the Applicant said “no”. Mr Harper said that during this meeting he reminded the Applicant of his obligation to keep the investigation confidential and not to discuss it with anyone, to which the Applicant nodded.32 A more detailed consideration of the evidence about this discussion will be found later in these reasons.

[13] After this discussion, the Applicant spoke to Mr Milan Gambiroza in relation to whether he could recall the event particularised in allegation 6. The Applicant said that Mr Gambiroza could not remember and the matter was not discussed any further. 33 Mr Gambiroza agreed that the Applicant did ask him “who the fuck is Marius” but could not recall when it occurred and that he completed a special day report about the incident.34 This discussion also forms part of the confidentiality breach allegation. A more detailed consideration of the evidence about this discussion will be found later in these reasons.

[14] On 22 November 2017, the Applicant spoke with the VCCI investigator by telephone and provided his responses to the allegations and some background material for his statement. The following day the VCCI investigator sent her notes to the Applicant by email. 35

[15] On 28 November 2017, the Applicant attended a meeting with Mr Harper and after discussing whether the Applicant had spoken to co-workers about the investigation, Mr Harper informed the Applicant that the Respondent had decided to stand him down until the completion of the investigation. 36 A more detailed consideration of the evidence about this discussion is to be found later in these reasons.

[16] On 1 December 2017, the Applicant had a further telephone interview with the VCCI investigator 37 during which he asked that a number of amendments be made to her notes, namely in relation to his discussions with co-workers and comments about Mr Ciocan. The Applicant says that it was during this discussion that the VCCI investigator informed him for the first time that there were new allegations in relation to his behaviour towards another driver, Mr Mark Papworth.38 Mr Harper gave evidence that it was on or around 20 November 2017 when he told the Applicant that there was a second complaint made against him and that he would need to be interviewed about it.39 For reasons that will become apparent it is not necessary for me to resolve this dispute in the evidence. After hearing the nature of the allegations, the Applicant told the VCCI investigator that he would require some time to recall the events and to provide a response.

[17] The new allegations were as follows: 40

“Allegation 9

In or around February/March 2017 at approximately 1.30pm, Mark Papwroth (sic) was at Port Junction driver changeover spot waiting to start his shift. He was due to pick up the tram around 1.38pm. A driver gave Mark Papworth a message that he was required to return to South bank depot which he did. When Mark Papworth arrived at the depot Mark Moran queried, ‘didn't you see me at the stop? I was waiting for you?'

…

Allegation 10

In or around May 2017 at approximately 12.30pm, Mark Papworth telephoned Mark Moran. Mark Papworth said 'Its Mark from the hub. I was wondering if you knew what was happening with the 12s at the moment?' Mark Moran responded 'I don't know why you are calling me'. Mark Moran said Mark Papworth should call Fleet Operations Centre.

…

Allegation 11

In or around late July 2017, at approximately 9.30/9.45pm Mark Papworth was on shift caring the city circle tram to the Southbank Depot. Mark Papworth was running approximately 10 minutes late. When he returned to the Southbank depot, Mark Papworth asked Mark Moran if he could have 20 minutes overtime as he had missed the route 109 tram. In response to the overtime request Mark Moran said he should have skipped Docklands.

…

Allegation 12

On September 12 2017 on or around 3.04pm Mark Papworth, driving a route 30 tram, was duet (sic) to be taken at LaTrobe and Spencer Street. The driver taking the tram drove to the stop in the Yarra Trams car par (sic) and passed the keys to Mark Papworth to return to the Southbank depot. When Mark Papworth arrived at the Southbank depot Mark Moran said words to the effect of 'heavy traffic was there? You were due here 15 minutes ago'.

…

Allegation 13

On 21 October 2017 at around l0am Mark Papworth was at Southbank depot waiting to start route 58 D Class training. Mark Papworth went to the counter of the Starters Office and said words to the effect 'I am supposed to be doing D Class training with Truong' Mark Moran said words to the effect of I don’t know the hub never tell me anything'.”

[18] A copy of the Applicant’s final response to allegations made by Mr Ciocan and Mr Papworth was provided to the VCCI investigator on 6 December 2017. 41 On 21 December 2017, the RTBU sent a letter to the Respondent seeking an update on the investigation42 and a response was provided by Mr Craig Ypinazar (Yarra Trams Director) the next day indicating that further interviews had been organised for 9 January 2018.43 The Applicant took leave between 14 January 2018 and 27 January 2018.44

[19] According to the Respondent’s chronology, the VCCI investigation report was provided to the Respondent on 22 January 2018. 45

[20] On 2 February 2018, the Applicant says that Mr Harper informed him that the VCCI investigation had been completed but the Respondent was still 2 or 3 weeks away from finalising the matter. At this stage the Applicant made his first request for the VCCI investigation report. 46

[21] After the RBTU followed up on the progress of the matter with the Respondent, the Applicant was informed that there would be a meeting on 14 February 2018 regarding the investigation. The Applicant says that on 12 February 2018, he made a further request for the investigation report but was told that it could not be provided. The Applicant also requested that he be provided with the questions that the Respondent intended to ask at the meeting so that he could have time to consider his responses. 47

Meeting on 14 February 2018 and new allegations

[22] The Applicant attended the meeting with his representatives Mr Anderson and Ms Alice Dunn (industrial officer of RBTU) on 14 February 2018. The Respondent was represented by Ms Reddy and Mr Harper. 48

[23] At the meeting, the Applicant was provided a document which contained all the allegations made and contained the findings of the VCCI investigation, specifically whether each allegation was “substantiated” or “unsubstantiated”. 49

[24] The findings of the investigation are summarised as follows:

Allegation 1: Unsubstantiated

Allegation 2: Unsubstantiated

Allegation 3:

(a) Unsubstantiated

(b) Substantiated

(c) Unsubstantiated

(d) Unsubstantiated

(e) Unsubstantiated

Allegation 4: Unsubstantiated

Allegation 5: Substantiated

Allegation 6: Substantiated

Allegation 7: Unsubstantiated

Allegation 8: Partially substantiated

Allegation 9: Unsubstantiated

Allegation 10: Substantiated

Allegation 11: Unsubstantiated

Allegation 12: Unsubstantiated

Allegation 13: Unsubstantiated

[25] As is evident from the above, most of the allegations were unsubstantiated. The VCCI investigator concluded that three of the thirteen allegations relating to bullying and harassment had been substantiated while two others had been substantiated in part.

[26] The Applicant says that his representatives made several requests for the investigation report but the Respondent’s representatives refused to provide it. 50 The Applicant was informed at the meeting that the Respondent was issuing him with a warning in relation to the substantiated and partially substantiated allegations.51

[27] The Respondent’s representatives also informed the Applicant of new serious allegations, namely:

•  breaching confidentiality in relation to the VCCI investigation by talking to co-workers about the investigation;

•  lying to his manager, Shaun Harper, on 21 November 2017; and

•  victimising co-workers and being dishonest throughout the VCCI investigation. 52

[28] Particulars of the allegations were not provided to the Applicant and the Applicant was informed that the new allegations constituted serious misconduct which could result in termination of his employment. The Applicant says that initially Ms Reddy insisted that the Applicant provide answers to the allegations immediately but then later said that a further disciplinary meeting would be conducted on 19 February 2018. 53 The Applicant requested that he be provided the new allegations in writing and be given time to respond.54 A further meeting was arranged for 19 February 2018.55

[29] Subsequently, by email sent on 15 February 2018, Ms Dunn repeated the Applicant’s request for the new allegations to be put in writing. 56 The Respondent set out the allegations in the form of “Questions for Mr Moran” by email also on 15 February 2018,57 as follows:

“Questions for Mr Moran

Question One

Shaun Harper (Team Manager) spoke with you on 21 November 2017 to remind you that you were not to discuss the investigation, and that the investigation process was confidential. In the course of your conversation with Shaun, you denied that you had spoken about the investigation with anyone. What is your response to this?

Question Two

Victimisation is prohibited under Yarra Trams policies and is unlawful under anti-discrimination legislation. Victimisation is subjecting or threatening to subject a person to any detriment because that person (or someone associated with that person) has made, or intends to make, or participate in a complaint under anti-discrimination legislation. This was covered in the EEO training providing to you.

Do you understand this concept, and/or do you understand the seriousness of victimisation in the workplace?

Question Three

We put to you that your attempt to discuss the investigation with your colleagues constitutes an attempt to intimidate or victimise them, and /or was a deliberate attempt by you to influence or intimidate other employees who were participating in the investigation, and/or is a misuse of the power invested in you by virtue of your role with Yarra Trams.

What is your response to that?

Question Four

I am of the view that you have been dishonest throughout the course of the investigation. There are significant material differences between what you have said to Shaun and I directly, what you have said to the investigator in the first instance, and the content of the amended statement provided to the investigator.

We are of the view that your breach of confidentiality and subsequent dishonesty, taken together, amount to serious misconduct. A mutual duty of trust and confidence underpins the employment relationship; your conduct has damaged the employment relationship significantly.

Your role with Yarra Trams requires you to undertake business critical work, and is a position which carries a great deal of responsibility. Your success in this role, and the diligence with which you undertake your work, has significance for the successful operation of the Southbank Depot. Yarra Trams must have absolute trust in you.

On this basis, Yarra Trams is considering a range of disciplinary outcomes, up to and including termination of employment. What do you say is an appropriate outcome?”

Meeting on 19 February 2018

[30] At a meeting on 19 February 2018, where the Applicant was accompanied by Mr Anderson and Ms Dunn, the Applicant was asked to respond to the new allegations. He says he responded as follows:

“a. In relation to the first question, Harper had asked me whether I had spoken to

Chatelier about the VCCI Investigation. I was caught off guard and it did not enter

into my head at the time that he was referring to me asking Chatelier whether I

had said "who the fuck is Marius". In any event, I did not consider that I was

talking about the VCCI Investigation in doing so.

b. In relation to the question concerning my understanding of the concept of

"victimisation", I responded that I generally understood the concept. I also said

that I had not victimised anyone.

c. In relation to the allegation that talking to my co-workers was intimidation,

victimisation or misuse of power, I totally rejected the allegation.

d. In relation to the allegation that I had been dishonest, I found it difficult to

understand the allegation. It was said that by making amendments to my

statement I had been dishonest. I explained that I had provided greater detail in

relation to my dealings with Ciocan. There was nothing dishonest about this, I

told the investigator what my changes were. I also explained that when Harper

spoke to me on 21 November 2017 I genuinely did not recall asking Chatelier

about whether I had said "who the fuck is Marius". I was not trying to hide that I

had spoken to him, I was the one who told Bell that I had asked questions of

Chatelier, Goats (sic) and Gambiroza.” 58

[31] Ms Reddy told the Applicant that his conduct was serious misconduct and that his employment was being summarily terminated. 59

[32] On 20 February 2018, a letter was sent on behalf of the Applicant to the Respondent informing the Respondent that the Applicant wished to lodge an appeal against the decision to terminate his employment under clause 3.5 of Attachment 1 of the Yarra Trams Enterprise Agreement 2015 – Operations. 60

[33] On 22 February 2018, the Applicant received a letter of termination which was delivered to his home. 61

[34] The Applicant sent two requests by email on 26 February 2018 to Ms Reddy and Ms Marriott asking for the VCCI investigation report and witness statements to be provided to him prior to the appeal hearing. 62

Appeal hearing and decision

[35] The appeal hearing was conducted by Mr Brian Lacy on 23 March 2018 and the decision was reserved. 63 The decision was issued on 16 April 2018.

[36] Mr Lacy concluded that there was not a valid reason for dismissal, the Applicant was denied procedural fairness and that the termination was harsh and unjust. Mr Lacy recommended that the decision to terminate the Applicant be reviewed by the Respondent as well as whether a disciplinary option short of dismissal would be more appropriate. 64

[37] Subsequently, the RTBU sent a letter to the Respondent’s CEO, Mr Nicolas Gindt, querying when the review of the decision to terminate will commence. 65 A response was never received. However, the Applicant has received a letter from the Respondent’s representative regarding his “post-termination conduct” describing the conduct as intimidating and inappropriate.66

[38] Much of the foregoing background provides context to the circumstances which led to the Applicant’s dismissal but ultimately it is necessary only to examine whether the Applicant breached any requirements that he keep the investigation confidential, whether he was dishonest in relation to any breach of confidentiality and the circumstances and consequences of the Applicant’s surreptitious recording of a number of meetings with Respondent’s employees and his union colleagues.

Confidentiality requirement

[39] To begin, as noted in the background, the Applicant is requested to sign documents which are described as “confidentiality agreements”. He did not sign these documents and the Respondent and the VCCI investigator knew that that was the case. The Respondent has not produced any document signed by the Applicant, nor does the Respondent dispute the fact that the Applicant did not sign any confidentiality document. 67 The VCCI document provides the following:

“Guide to Participants

It is important that you read the following confidentiality agreement and ask for any clarification prior to signing it. You will be given a copy to take with you.

1. Victorian Employers' Chamber of Commerce and Industry ("VECCI") has been engaged to interview employees of Yarra Trams and to obtain statements from those employees regarding a matter that has arisen at Yarra Trams. You have been requested by Yarra Trams to assist with this investigation.

2. We are consultants experienced in carrying out workplace investigations. We are not lawyers and cannot give you any legal advice.

3. Interviews will be conducted by Cath Pollard, Workplace Relations Consultant with the Victorian Employers' Chamber of Commerce in Industry (VECCI) on behalf of Yarra Trams commencing, 27 September 2016.

4. Cath Pollard will prepare finalised statements of interview and review with you prior to sign off. You will be provided a copy of your statement and copies will be provided to Yarra Trams.

5. The information provided by you will remain confidential from other employees except as required to conduct the investigation. Information provided by you will be recorded in writing.

6. Confidentiality must be observed. There must be no discussion by you with other people about what was discussed during the interview process or any knowledge you have concerning this investigation. Should you decide to discuss this with any external contacts (i.e. Health, legal, family etc.) please advise them of your confidentiality obligations.

7. You may not, without gaining permission from Yarra Trams discuss the investigation with any other employee. Doing so will breach your confidentiality obligations and may be seen as harassment and/or victimisation.

8. Breach of confidentiality may result in disciplinary action up to and including termination of employment. Also breach of confidentiality carries a risk of defamation and/or breach of contractual obligations.

9. It is essential that you conduct yourself in a manner that will not bring disrepute upon yourself or Yarra Trams by engaging in any behaviour [including any detrimental or retaliatory action] which may give rise to a complaint of victimisation by any party involved in this process. Victimisation of any person involved in the process is unlawful and would be viewed as serious misconduct by your Yarra Trams and may result in disciplinary action up to and including termination of employment.

10. In providing information and any evidence to us, you warrant that you believe the information to be true and correct and agree that the information and evidence will be used by Yarra Trams to assist in its investigation.

11. You may have an independent support person present during the interview. This can be a friend, lawyer or other person. That support person is present to support you but is not to participate or speak on your behalf.

12. We will ensure that you have the opportunity to explain your position and that you have reasonable time to respond.

13. We may put any information obtained from the investigation to a person for a response.

14. We may provide you with the opportunity to comment on any contradictory evidence, should you wish to do so.

15. If you have any concerns about the process, please discuss your concerns confidentially with Jewels Grano.

16. I have read and understood the above. I agree to observe the agreement as outlined.” 68

[40] The Respondent’s document provides the following:

“Equal Opportunity & Bullying Complaints Procedure

Confidentiality Agreement for Participants

It is important that you read the following confidentiality agreement and ask for any clarification prior to signing it. You will be given a copy to take with you. This document is in accordance with the Yarra Trams Equal Opportunity Complaints Procedure (c201wi0002).

1. The information provided by you will remain confidential from other employees except as required to conduct the investigation. Information provided by you will be recorded in writing.

2. As per the Yarra Trams Equal Opportunity Complaints Procedure, confidentiality must be observed. There must be no discussion by you with other people about what was discussed during the interview process or any knowledge you have concerning this investigation. Should you decide to discuss this with any external contacts (i.e. Health, legal, family etc.) please advise them of your confidentiality obligations.

3. You may not, without gaining permission from Yarra Trams discuss the investigation with any other employee. Doing so will breach your confidentiality obligations and may result in disciplinary action.

4. It is essential that you conduct yourself in a manner that will not bring disrepute upon yourself or Yarra Trams by engaging in any behaviour [including any detrimental or retaliatory action] which may give rise to a complaint of victimisation by any party involved in this process. Victimisation of any person involved in the process is unlawful and would be viewed as serious misconduct by Yarra Trams and may result in disciplinary action up to and including termination of employment.

5. In providing information and any evidence to us, you warrant that you believe the information to be true and correct and agree that the information and evidence will be used by Yarra Trams to assist in its investigation.

6. All complaints, evidence and materials will be handled in a sensitive and serious manner as per the Yarra Trams Equal Opportunity Complaints Procedure. No one will be disadvantaged because they have made a complaint, submitted evidence or participated in the investigation.

7. You may have an independent support person present during the interview. Thai support person is present to support you but is not to participate or speak on your behalf.

8. We will ensure that you have the opportunity to explain your position and that you have reasonable time to respond.

9. We may put any information obtained from the investigation to a person for a response.

10. We may provide you with the opportunity to comment on any contradictory evidence, should you wish to do so.

11. If you have any concerns about the process, please discuss your concerns confidentially with your relevant manager or Human Resources.” 69

[41] The Respondent’s Equal Opportunity Complaints Procedure relevantly provides:

“Equal Opportunity Complaints Procedure

…

2.3 Complaints will be resolved in a confidential manner

All complaints will be kept confidential. Only the people directly involved in a complaint, or in resolving a complaint, will have access to information about it. Everyone involved in resolving a complaint will be required to maintain confidentiality. Those employees that contravene this obligation of confidentiality may be subject to disciplinary action.

All records regarding equal opportunity complaints, including records of interview, will be kept confidential. These records will be kept in a separate file from general Human Resources files. Only authorised personnel will have access to these records.

These measures are taken to ensure confidentiality and to minimise the risks of victimisation.” 70

[42] As earlier noted, in late September 2017, the Applicant was advised by Ms Reddy that an investigation about a complaint made against him was to be undertaken. 71 The Applicant was not given any detail about or particulars of the complaint. As noted earlier, he was asked to sign a document styled as a “Confidentiality Agreement for Participants”72 but declined to do so for the reasons earlier stated. The Applicant’s evidence is that it was Mr Augustus who had asked him to sign the document.73 The Applicant also made a note of the meeting which supports his version of events.74 There is an issue whether the Applicant was bound by the confidentiality requirements set out in the documents notwithstanding that he had not signed them. Ms Reddy gave evidence that regardless of whether the Applicant signed the documents she had taken the Applicant through the confidentiality obligations and that her “verbal discussion with him was an instruction.”75

[43] In her witness statement Ms Reddy says nothing about providing the Respondent’s confidentiality document to the Applicant during the meeting that occurred on or around 27 September 2017. She says nothing about instructing the Applicant as to confidentiality at that meeting. During her oral evidence Ms Reddy suggested that at the meeting on or about 27 September 2017, not only did she give to the Applicant the Respondent’s policy and confidentiality agreement 76, but she also gave him a copy of the VCCI confidentiality document77 and she instructed the Applicant not to discuss the investigation.78 I do not accept this evidence for several reasons. First, on her own evidence, Ms Reddy did not tell the Applicant that VCCI had been appointed to conduct the investigation until 18 October 2017. Secondly, none of this oral evidence appeared in her initial witness statement. Thirdly, it is inconsistent with her witness statement which she adopted in the witness box, in which she says that these documents were provided to the Applicant at a meeting on 18 October 2017.79

[44] It seems to me unlikely that the documents were given to the Applicant twice. In her oral evidence Ms Reddy said she was “fairly sure” that these documents were given to the Applicant on 27 September 2017. 80 Her oral evidence is inconsistent with the evidence given in her witness statement which she had earlier adopted as correct. On the whole her evidence as to the documents is unreliable.

[45] As I have already noted, it appears that Mr Augustus gave the Applicant a copy of the confidentiality document and asked him to sign it. The Applicant refused to sign it. There is no evidence that Mr Augustus gave any instruction to the Applicant and Mr Augustus was not called to give evidence. As I have already observed, the Applicant’s contemporaneous note confirms his version of events. Given the state of the evidence, I conclude that at the meeting on or about 27 September 2017, the Applicant was given a copy of the Respondent’s confidentiality document and complaints procedure document and asked to sign the confidentiality document which he refused to do. He was not given any instruction at that meeting as to confidentiality. He was not given a copy of the VCCI document.

[46] Ms Reddy said that she believed that by taking the Applicant through the confidentiality documents that the Applicant was in effect bound by a requirement to maintain confidentiality. 81 That may be her view but it is not what the documents on their face provide. Indeed the suggestion that there is an instruction given by taking the Applicant through the documents appears to me to be inconsistent with the express terms of the documents. At the very least, the inconsistency between the terms of the documents and Ms Reddy’s understanding of the effect of taking the Applicant through the documents raises real questions as to whether the Applicant could be said to have understood that an explanation of the documents bound him to their terms notwithstanding that he was asked to sign and refused to do so.

[47] Ms Reddy gave evidence that she and Mr Augustus met with the Applicant on 18 October 2017, told him about the appointment of VCCI to conduct an investigation, provided the Applicant with the documents, to which reference has already been made and, according to Ms Reddy, she told the Applicant that both he and Mr Ciocan would remain at work during the investigation provided the Applicant kept the investigation confidential. 82 Her evidence was also that she said to the Applicant words to the effect: “do you understand that you can’t talk to any other employees about the investigation?” and the Applicant replied: “yep”.83 The Applicant’s evidence was that he was told about the VCCI investigation during a meeting with Ms Reddy and Mr Augustus on 18 October 2017.84 He said that it was Mr Augustus who asked him whether he signed the confidentiality forms that he had been provided at the previous meeting.85 He said he had not and reiterated the earlier given explanation.86 His evidence was that he was not provided with the VCCI document at that meeting or at any other time. The Applicant made a contemporaneous note of the meeting on 18 October 2017.87 The note is consistent with the evidence that the Applicant gave about that meeting. Mr Augustus was not called to give evidence. The Applicant’s evidence was that he was not given a copy of the VCCI document at all.88 I prefer the Applicant’s evidence to that given by Ms Reddy. As I had already noted above, Ms Reddy’s evidence about if and when she gave particular documents to the Applicant is inconsistent and unreliable. The Applicant’s evidence is consistent and is supported by contemporaneous notes made by him. I also accept as a consequence that the Applicant was not given a copy of the VCCI document by anyone including the VCCI investigator. So much is clear from the note and recording of the VCCI investigator’s interview with Mr Moran on 14 November 2017. Therein the VCCI investigator is recorded as saying to the Applicant words to the effect “let’s do the broad admin stuff. I won’t even bother to send you the protocols”.89 The VCCI investigator was not called to give evidence. I also accept his evidence that he was not given an instruction as to confidentiality at the meeting on 18 October 2017.

[48] If the confidentiality documents are intended to give effect to the Respondent’s EOC procedure, and in particular that section which provides that “everyone involved in resolving a complaint will be required to maintain confidentiality”, 90 they failed to do so because the documents do not on their face create an obligation until such time as the person to whom the document is directed signs it. By doing so that person, according to the section in the Respondent’s document headed “Employee Agreement”, is said to have read and understood it and importantly “I agree to observe the agreement as outlined”.91 The identical acknowledgement and agreement is set out in paragraph 16 of the VCCI document.92

[49] Given the Applicant’s refusals to sign the agreement style confidentiality document, it is somewhat surprising that a direct and unequivocal direction was not given to the Applicant about confidentiality during the investigation and in particular about that which he was permitted to do and that which he was not.

[50] There can be little doubt that the Applicant was aware, at least in a general sense, of the Respondent’s requirements about confidentiality in investigations. 93 Indeed it may be inferred that given he was asked by Mr Augustus to sign the confidentiality document that the Respondent wanted the Applicant to maintain confidentiality during the investigation and that the Applicant was aware that this is what the Respondent wanted. Certainly the Applicant was aware that the purposes of confidentiality requirements included protecting complainants from retaliation, upholding the integrity of investigations by preventing witnesses from colluding and protecting against witness intimidation or the feeling thereof.94

[51] However, as should be apparent from the above, I am not persuaded that the Applicant was given a clear instruction about the Respondent’s confidentiality requirements. Certainly he did not agree to those set out in writing, and although he had a general understanding about the need for confidentiality in the investigation and its purpose, it is another matter altogether to conclude that he understood from all of this, that the Respondent intended that he was prevented from taking any step to speak to any person for the purposes of refreshing his memory about particular allegations that are made against him. It seems to me that a clear and unequivocal direction about confidentiality and an explanation as to that which the confidentiality requirement entailed should have been given to the Applicant and on the available evidence it simply was not.

Breaches of confidentiality

[52] The Respondent maintains that the Applicant repeatedly failed to comply with the relevant confidentiality requirements.

[53] As noted earlier, the Applicant gave evidence that on 17 or 18 November 2017 he saw Mr Chatelier in the car park. He had a conversation with Mr Chatelier during which the Applicant asked whether Mr Chatelier could recall an incident wherein the Applicant said “who the fuck is Marius”. 95 The Applicant’s evidence was that Mr Chatelier replied with words to the effect that he did not know what the Applicant was talking about.96 Mr Chatelier’s recollection of the conversation is different to that of the Applicant. His evidence is inconsistent and a number of factors related to his evidence point to its unreliability. In his witness statement Mr Chatelier said that the Applicant “shouted out to me words to the effect: “Have you been called for the inquiry?””97 His evidence was that Mr Harper “subsequently asked me whether Mr Moran had asked me about the investigation. I told Mr Harper that he had not. The reason I gave that response to Mr Harper was that I was not aware, when Mr Moran approached me in the carpark, that an investigation was being conducted and did not understand that he was asking me about the investigation.”98 He also said that the Applicant did not ask him “who the fuck is Marius”.99 I found Mr Chatelier’s evidence on the whole to be unreliable. For the reasons which follow, I prefer the evidence of the Applicant about the conversation with Mr Chatelier.

[54] First, Mr Chatelier said that he had not discussed the approach of the Applicant to him with anybody until he was asked to prepare his witness statement which was in about May 2018. 100 This could not possibly be correct since in February 2018 an allegation about breaching confidentiality in connection with Mr Chatelier was put to the Applicant. If it is correct then it is difficult to see the factual basis upon which any allegation of breach of confidentiality could have properly been put to the Applicant in February 2018, particularly given that in November 2017, Mr Chatelier told Mr Harper that no discussion between he and the Applicant about the investigation had occurred.101

[55] Secondly, Mr Chatelier says that the Applicant asked him whether he has “been called for the inquiry” but Mr Chatelier’s evidence was that he told Mr Harper that the Applicant had not asked him about the investigation because he did not know an investigation was being conducted. Whether or not Mr Chatelier knew that investigation was being conducted does not provide a satisfactory or particularly plausible explanation for telling Mr Harper that the Applicant had not asked him about the “investigation”. His explanation for doing so is all the more implausible given that, on Mr Chatelier’s version of the conversation with the Applicant, Mr Chatelier was asked by the Applicant whether he had been called to the “inquiry”.

[56] Thirdly, Mr Chatelier wears a hearing aid and gave evidence that “[W]hen I finish work the first thing I do is I take it off because I wear it the whole day and it can be uncomfortable.  So when I am going home I usually take it off.  So it could have been off at that time.  I mean, I may have taken it off.” 102 Given that this was Mr Chatelier’s usual practice and that the conversation between he and the Applicant occurred at a time when Mr Chatelier had finished work, it seems to me likely that he did the very thing that he describes in his evidence. In those circumstances, his evidence that the Applicant did not ask him whether he can recall an incident wherein the Applicant had said “who the fuck is Marius” needs to be treated with caution.

[57] Fourthly, the Applicant’s evidence about the conversation is consistent with the record of interview with the VCCI investigator which records that the Applicant asked Mr Chatelier about the allegation concerning “who the fuck is Marius” and that Mr Chatelier said that he did not know what the Applicant was talking about. 103 Despite this being disclosed by the Applicant, the proposition does not appear to have been discussed with Mr Chatelier when he was subsequently interviewed by the VCCI investigator.104

[58] Fifthly, the Applicant’s evidence is also consistent with a contemporaneous note made by him of his conversation with Mr Chatelier. 105

[59] The Applicant gave evidence that on 21 November 2017 Mr Harper attended the Applicant’s office and asked him to step into the conference room at which point Mr Harper said to the Applicant words to the effect that there has been “another breach” of the Respondent’s EEO policy and he asked the Applicant whether the Applicant had spoken to Mr Chatelier about the investigation. 106 The Applicant’s evidence was that he told Mr Harper that he could not recall and that it did not enter his “head at that moment that he was talking about me asking Chatelier about whether I had said “who the fuck is Marius””.107 Mr Harper’s evidence is at odds with the Applicant about their conversation on 21 November 2017. Mr Harper’s evidence was that he asked the Applicant whether the Applicant had spoken to any other employees about being investigated.108 Mr Harper said that the Applicant told him that he had not and that thereafter Mr Harper reminded the Applicant to keep the investigation confidential and not to discuss the investigation with anyone.109 He says that the Applicant nodded his head.110

[60] Apart from recording a series of conversations to which I will later return, the Applicant also kept notes of various conversations. 111 I have referred to some of these already. Amongst the notes kept by the Applicant is a note of a conversation with Mr Harper on 21 November 2017. Without repeating that which appears in the note, it is consistent with the evidence given by the Applicant about the conversation with Mr Harper. The Applicant said that the notes were prepared by him after each incident set out in the notes and then he would make the notes at home.112 He said that he did not prepare the notes at some later stage in preparation for the hearing of this application.113 I accept the Applicant’s evidence as to the manner and circumstances in which he prepared the notes. He also said that Mr Harper did not remind him of any obligation to keep the investigation confidential, he did not tell the Applicant not to discuss the investigation with anyone and that the Applicant did not nod his head as suggested by Mr Harper.114

[61] On the whole I prefer the evidence given by the Applicant as to the content of the conversation between the Applicant and Mr Harper on 21 November 2017. The Applicant’s version of the conversation is supported by notes made relatively contemporaneously. Mr Harper’s recollection of events was on his own evidence imprecise. Mr Harper had in mind Mr Chatelier during his discussion with the Applicant. 115 Mr Harper’s oral evidence was that “I don’t believe I would have used Mr Chatelier’s name . . . I do not believe I used his name as far as I can recall”.116

[62] In his witness statement about a conversation with the Applicant on 28 November 2017 concerning Mr Gambiroza, 117 Mr Harper does not take issue with the evidence given by the Applicant that during that discussion the Applicant had said to Mr Harper amongst other things that Mr Harper had “asked me about Chatelier previously” and that the Applicant told him that he “had approached Mr Chatelier, but not to spread rumours or gossip about” the investigation” and that he had “asked Mr Chatelier a question in order to refresh” his memory.118 During his oral evidence, Mr Harper agreed that the Applicant may have said that Mr Harper had asked about Chatelier earlier119, that he may have used Chatelier in the conversation but he could not recall the context and also agreed that the Applicant had said that he had spoken to Mr Chatelier to ask a question to refresh his memory.120

[63] The evidence about the conversation between Mr Harper and the Applicant on 28 November 2017 tends to corroborate the Applicant’s version of the conversation with Mr Harper on 21 November 2017.

[64] In any event, even if Mr Harper’s version of the conversation on 21 November 2017 were to be accepted, it is clear on his evidence that he gave no particulars about what he meant by discussing the investigation with employees, the absence of which makes it difficult to accept that the Applicant’s response could be said (save in on respect which I will shortly discuss) to be lying about discussing the investigation. This is all the more the case given the circumstances in which the conversation occurred, commencing in the Applicant’s office at a time where on his evidence, as disclosed from the notes, which is not disputed, the Applicant was busy and likely distracted. 121

[65] I am troubled however, with the Applicant’s response that he did not recall. The conversation with Mr Chatelier occurred only a few days before the conversation with Mr Harper. The Chatelier conversation was about a material allegation, about which the Applicant sought to have his memory refreshed. The Applicant made a note of the conversation. It seemed important enough to him to warrant a note. The making of the note is likely to have reinforced rather than to diminish a memory of the conversation. On the Applicant’s evidence which I have accepted, Mr Harper said words to the effect that “there has been another breach of the EEO Policy” and asked whether the Applicant “had spoken to Mitch Chatelier about the investigation”. 122 I do not accept that the Applicant did not recall or that it did not occur to him that Mr Harper was referring to the Chatelier conversation. The statements of Mr Harper clearly link the “breach” to a question of a discussion between the Applicant and Mr Chatelier. In these circumstances, the Applicant’s response that he did not recall does not ring true. It seems to me much more likely that a truthful response by a person maintaining that he was not discussing the investigation with employees would have been “no” rather than “I can’t recall”. An “I can’t recall” response in the circumstances bears the hallmarks of a person seeking time to think, rather than truthfully responding. Therefore, to that extent I am satisfied that his response was not truthful. But for the reasons which follow, I do not consider that the Applicant was, by his response, seeking to hide the truth or to adversely affect the course of the VCCI investigation.

[66] First, the Applicant disclosed the fact of his conversation with, inter alia, Mr Chatelier to the VCCI investigator. Secondly, only a few days later, on 28 November 2017, the Applicant told Mr Harper that he had a conversation with Mr Chatelier to ask Mr Chatelier to assist him in refreshing his memory and that nobody had told him that he “couldn’t approach people”. 123He maintained that he did not consider this to be discussing the “case”.124 As already noted, Mr Harper accepted that the Applicant may have told him on 28 November 2017 that he had spoken to Mr Chatelier to ask him a question in order to refresh his memory.125The notes taken from the recording of the conversation between the Applicant and Mr Harper on 28 November 2017 also support the fact that the Applicant told Mr Harper that he had spoken with Mr Chatelier for the purpose of refreshing his memory.126

[67] All of this shows that the response given to Mr Harper by the Applicant on 21 November 2017 was consistent with delay or buying time rather than a dishonest intent in the sense that the answer was intended to cover up the fact that the Applicant had a relevant discussion with Mr Chatelier. The conversations that the Applicant held with Mr Chatelier, and with others, formed part of his response to the allegations the subject of the VCCI investigation.

[68] Mr Harper’s evidence about the confidentiality reminder to the Applicant on 21 November 2017 also needs to be viewed in the context of the circumstances in which the conversation occurred. The Applicant denies that Mr Harper uttered any confidentiality reminder 127 and Mr Harper’s oral evidence was less than certain about what it is that he had said to the Applicant. His oral evidence included:

•  that the conversation was “along the lines of that – asking him if he was aware that the investigation was confidential”; 128

•  that “this (the confidentiality reminder) was the main reason why [Mr Harper] had to meet with” the Applicant; 129 and to remind the Applicant of the “VECCI protocols”;130

•  he could not remember using the word “protocol” but could remember using the words “investigation” and “confidential” 131

•  he later said that he believed that he did mention “the VECCI protocol” and “the obligation to keep the investigation confidential”; 132

•  he agreed that he did not say “you must not discuss anything about the facts to do with the investigation with anyone” but said that he assumed the terminology that he did use saying “that the investigation’s (sic) to be confidential” the Applicant understood what he was talking about; 133 and

•  he said that he “did remind him after inquiring about the (sic) Chatelier on the 21^st, that there were protocols of the investigation, that he knew it was confidential,” 134 even though Mr Harper had earlier given evidence that he did not mention “Chatelier” during the meeting with the Applicant on 21 November 2017.

[69] I prefer the evidence of the Applicant in respect to whether Mr Harper gave such a reminder, and conclude that no reminder was given by Mr Harper during the meeting on 21 November 2017. But even on Mr Harper’s own evidence, the so-called reminder was at best an oblique reference to not discussing “the investigation with anyone” given in circumstances where the Applicant was busy and distracted having already been asked, on Mr Harper’s version, whether the Applicant had spoken to any other employees about the matters being investigated. The Applicant’s contemporaneous note of the 21 November 2017 meeting, does not record any such reminder. Moreover, in notes made from a recording during the Applicant’s meeting with Mr Harper on 28 November 2017, the Applicant is recorded as saying on two occasions to Mr Harper words to the effect “nobody said that I could not approach anybody”. There is no indication that Mr Harper reminded the Applicant that he had reinforced the confidentiality obligations attaching to the investigation during their meeting on 21 November 2017. The recording and the notes 135 of the meeting between Mr Harper and the Applicant on 28 November 2017 do not support Mr Harper’s evidence that during that meeting he “reminded Mr Moran that he had been told that he was required to keep investigation confidential and was not to discuss it with anyone”.136

[70] The Applicant gave evidence that on 18 November 2017 he spoke to Mr Goates in the Applicant’s office. The Applicant’s evidence is that during the discussion the Applicant asked Mr Goates whether Mr Goates could recall the Applicant telling Mr Ciocan to shut up and “saying that sanding E – Class trams is stupid”. 137 The Applicant’s evidence was that Mr Goates said that he did not know what the Applicant was talking about.138 Mr Goates was not called to give evidence and the Applicant made a contemporaneous note of the conversation139 which is consistent with the evidence that he gave. I accept the Applicant’s evidence. His evidence is also consistent with the Applicant’s record of interview with the VCCI investigator wherein the Applicant is recorded as saying “I checked with Driver Goates if I had used the words and he could not remember and all he remembers is that I told him where to berth the trams as Marius was not answering his calls.”140 Despite this being disclosed by the Applicant, the proposition does not appear to have been discussed with Mr Goates when he was subsequently interviewed by the VCCI investigator.141

[71] Following the conversation with Mr Harper on 21 November 2017, the Applicant had a conversation with Mr Gambiroza. The Applicant gave evidence that during the conversation he said to Mr Gambiroza words to the effect of “can you help me recall whether I have ever said the words: ‘who the fuck is Marius’” 142 and that Mr Gambiroza said that he could not remember.143 The Applicant made a contemporaneous note of his conversation with Mr Gambiroza which is to the same effect.144 Mr Gambiroza’s evidence was that he could recall the question about which the Applicant gave evidence but did not recall when that conversation had occurred.145

[72] Mr Gambiroza also gave evidence that during a conversation on 21 November 2017, the Applicant had said to him words to the effect “I’m in trouble” and “I’m in trouble this time. Are you going to say anything if they ask you?” 146

[73] Ms Reddy gave evidence that Mr Gambiroza spoke with her on 21 November 2017 about the discussion with the Applicant. 147 Her evidence was that Mr Gambiroza had told her that the Applicant had asked him about the investigation and whether he intended to say anything to the investigator.148 She said that Mr Gambiroza was upset because he had been bullied by the Applicant previously and he did not want the Applicant to get away with bullying and intimidating people.149 She asked Mr Gambiroza to complete a special day report in relation to his interaction with the Applicant.150 On or about 29 November 2017, Mr Gambiroza completed a special day report and gave it to Ms Reddy.151 The special day report contains the following:

“I was approached by Mark Moran whilst I was on my meal break. In regards to an insident (sic) with Marios Ciocan, (sic) he asked me if I remembered what he said, and if I would say anything if interviewed.” 152

[74] Mr Gambiroza’s oral evidence was, to say the least, confused. Although the evidence given by him in his witness statement suggests that he could not remember the Applicant had asked him for help remembering whether he had said “who the fuck is Marius”, his oral evidence would indicate that the conversation occurred on 21 November 2017 and that he did not include that comment in the special day report because “it’s just rude”. 153 Mr Gambiroza also could not adequately explain why it is that the words attributed to the Applicant appearing in his witness statement “I’m in trouble” and “I’m in trouble this time” did not appear in the special day report and suggested that he felt that it was rude to write that down on a piece of paper.154

[75] I prefer the evidence of the Applicant to that of Mr Gambiroza about the conversation. The Applicant’s version is supported by a contemporaneous note. The matters about which Mr Gambiroza gave evidence in his witness statement were not in the special day report prepared at or approximating the time at which the conversation occurred. Ms Reddy did not give evidence that Mr Gambiroza told her that the Applicant had said to him words to the effect “I’m in trouble” and “I’m in trouble this time”. Mr Gambiroza’s explanation for the omission of these words together with the words that appear to be agreed as spoken by the Applicant from the special day report is unsatisfactory. There is also an inconsistency between Mr Gambiroza’s evidence in his witness statement that he could not recall when the Applicant had asked him whether he could recall the Applicant saying “who the fuck is Marius” 155 yet during his oral evidence Mr Gambiroza said that the Applicant’s question to him about whether he would “say anything if asked” was about the Applicant “saying about Marius, “Who the fuck is Marius””.156 Furthermore, the Applicant’s evidence is consistent with his record of interview prepared with the VCCI investigator in which the Applicant is recorded as telling the investigator that he had asked Mr Gambiroza if he could recall the incident and help him recall it to which Mr Gambiroza said that he could not remember.157 Once again, despite this being disclosed by the Applicant, the proposition was not discussed with Mr Gambiroza when he was subsequently interviewed by the VCCI investigator.158

[76] For the reasons earlier stated, I do not consider that there was a binding obligation on the Applicant to maintain confidentiality of the investigation either by stated directive or by reason of any agreement to the terms of the confidentiality documents which he did not sign. I also do not consider in the circumstances of this case that the Applicant could reasonably be said to have understood that any confidentiality requirements of the Respondent prevented him from seeking to refresh his memory about any allegations by speaking to employees who might have assisted him in that regard.

[77] But even if there was such an obligation, all that may be said about the breaches was that the Applicant was endeavouring to ascertain whether other employees could recall certain statements made by him. I do not consider in the circumstances of this case that such breaches, if they be breaches, were of a particularly serious nature. They amounted to no more than the Applicant making enquiries to enable him to prepare and properly respond to allegations the subject of the complaint. There is no substantiated allegation of any attempt at victimisation 159 or any reliable evidence that the Applicant sought to dissuade an employee from participating in the investigation. Moreover, even on the confidentiality documents on which the Respondent relies, the Applicant was permitted to discuss the investigation with other employees provided he gained permission from the Respondent to do so. Presumably, had the Applicant sought permission to speak to the three employees discussed above in order to ascertain whether they could assist him in framing his response, such permission would not have been denied. The seriousness with which the breach, if it be a breach, is to be assessed must be viewed in this context. If the conversations may be said to be breaches, the breaches are not of such moment as to found a valid reason for dismissal.

Dishonesty

[78] The allegation of dishonesty appears to centre on the responses given by Applicant to Mr Harper in November 2017. On the basis of my earlier findings, it is clear that the dishonesty allegation is not made out. For the reasons given earlier, I also consider that the response given by the Applicant, though likely not have been true, viewed in the context earlier discussed, was not sufficiently serious or significant so as to warrant a conclusion that it provides a valid reason for the dismissal.

Recordings

[79] At the hearing, it became evident that the Applicant had made a series of notes about various interactions, meetings he attended and discussions he had with co-workers. Some of these were made from audio recordings made by the Applicant without the knowledge or consent of other participants in the meeting or the discussion. 160

[80] The Respondent contends that the recordings disclose a number of matters that are relevant including:

•  the Applicant was warned by his union representative, Alice Dunn, that covert recordings of discussions is inappropriate and a “sackable offence” 161 however the Applicant subsequently recorded the 14 February 2018 and the 19 February 2018 meeting;

•  the Applicant had discussed with his representatives how he could respond to the allegation that he lied to Mr Harper on 21 November 2017 and then proceeded to give evidence that what he told Mr Harper was the truth; 162 and

•  after the meeting on 14 February 2018, the Applicant during a discussion with his representatives acknowledged that he should not have approached another participant in the investigation and he should not have told Mr Harper that he could not recall it happening. 163

[81] The Respondent notes that it has not had the opportunity of cross-examining the Applicant about the recordings given his failure to disclose the recordings at the appropriate time but nonetheless the recordings further support the Respondent’s contention that his conduct in covertly recording meetings and discussions jeopardises the prospect of the Respondent having trust and confidence in the Applicant. 164

[82] The Applicant relies upon the Surveillance Devices Act 1999 (Vic) to contend that the Applicant covertly recorded meetings and discussions to protect his own interests. 165 The Applicant also contends that the reason why a recording is made and its use is relevant, and therefore the Applicant recording a conversation with his employer to protect what he perceived to be his legitimate interest is reasonable, particularly in instances where allegations are made against the Applicant and he believed his job was in jeopardy.166

[83] There is no dispute that the Applicant made the recordings and did so without the knowledge or consent of the other participants in the meetings and conversations which were recorded. The recording, at least in Victoria, of the relevant meetings and conversations is not unlawful. I also do not accept that the recording by itself will always provide, or that in this case that it provides, a valid reason as suggested by the Respondent for dismissal. True it is that conduct which is not known to the employer at the time of the dismissal may nonetheless provide a valid reason for dismissal, for example a discovery after a dismissal that the former employee engaged in theft or fraud during employment. But here the Respondent seeks to suggest that the valid reason is based upon the impact that the surreptitious recording has had on the relationship of trust between the Applicant and his employer.

[84] In the case of most misconduct justifying dismissal which is afterwards discovered, that conduct will usually provide a valid reason by reason of the nature of the conduct. Separately, it may have a particular impact on the relationship between the former employee and the employer. Dismissal is for a valid reason because the conduct, though unknown at the time of the dismissal, was misconduct. But dismissal will usually not be justified if the conduct is not misconduct or wrongful conduct, if it is permitted by law and not prohibited by the employer. If there is to be a relevant relationship impact at the time of the dismissal sufficient to found a valid reason it seems to me that the conduct (which is not unlawful or otherwise misconduct or wrongful) would need to have been known. It can hardly be said that the Applicant’s surreptitious recording had a particular effect on the employment relationship thus providing a valid reason in circumstances where the conduct which was not misconduct, wrongful or unlawful was not known and the damage to the relationship could not have occurred at the time of dismissal. It might very well impact upon the relationship or more properly its re-establishment now, but it could not have had the requisite deleterious effect at the time of dismissal. Thus, the act of surreptitious recording in and of itself, whatever else might be said about it, does not provide a valid reason for the dismissal in the circumstances of this case.

Was the dismissal of the Applicant unfair

Whether the Applicant was protected from Unfair Dismissal

[85] An order for reinstatement or compensation may only be made if I am satisfied the Applicant was, at the date of the dismissal, protected from unfair dismissal under the Act.

[86] Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:

  (i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[87] There is no dispute, and I am satisfied, that the Applicant was, on 19 February 2018, protected from unfair dismissal within the meaning of s.382. It is uncontroversial that the Applicant had, as at 19 February 2018, completed a period of employment with the Respondent of the least the minimum period of employment. It is uncontroversial that an applicable enterprise agreement applied to his employment at the time of the dismissal.

Was the dismissal unfair?

[88] The Applicant’s dismissal will have been unfair if I am satisfied, on the evidence, that all of the circumstances set out in s.385 of the Act existed. Section 385 provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:
(a)the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[89] I have already concluded for the reasons stated earlier, the Applicant was dismissed on the Respondent’s initiative within the meaning of s.386 of the Act. The Respondent is not a small business employer so the issue of compliance with the Small Business Fair Dismissal Code does not arise, and the dismissal of the Applicant was not a case of genuine redundancy within the meaning of s.389 of the Act.

Harsh, unjust or unreasonable

[90] It remains therefore, for me to consider whether the Applicant’s dismissal was harsh, unjust or unreasonable. The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act:

“387 Criteria for considering harshness etc.

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

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”

[91] Having regard to the structure and content of s.387, in deciding whether a dismissal was harsh, unjust or unreasonable, each of the matters identified in that section must be taken into account.

[92] Moreover, each matter must be given appropriate weight having regard to the factual findings earlier made and taking into account the submissions of the parties. A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (Peko-Wallsend) 167, that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.513 means that each of the matters must be treated as a matter of significance in the decision making process.168As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:169

“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant”. 170

[93] The weight given to a particular matter is ultimately a matter for the Commission subject to some qualification. As Mason J explained in Peko-Wallsend:

“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. ... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". 171

[94] The ambit of the words “harsh, unjust or unreasonable” in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd 172  by McHugh and Gummow JJ as follows:

“. . . It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 173

[95] Ultimately, it is the matters set out in s.387 of the Act to which regard must be had.

(a) Valid reason – s.387(a)

[96] There must have been a valid reason for the dismissal relating to the Applicant’s capacity or conduct, although it need not be the reason given or relied upon by the Respondent at the time of the dismissal. 174The reason should be “sound, defensible or well-founded”175and should not be “capricious, fanciful, spiteful or prejudiced”.176

[97] In the circumstances of this case, the dismissal of the Applicant occurred because the Respondent believed the Applicant had engaged in serious misconduct in that he had breached his confidentiality obligations vis-a-vis the investigation and that he had not been honest with, or misled, his supervisor when asked whether he discussed the investigation with others. The question posed by the consideration in s.387(a) of the Act is not whether the employer had a valid reason for the dismissal, rather the issue that must be taken into account is whether there was a valid reason for the dismissal related to the Applicant’s capacity or conduct. The reason for the Applicant’s dismissal related to his conduct. There is no suggestion that the reason for dismissal related to the Applicant’s capacity, which will usually be associated with unsatisfactory performance. 

[98] Where conduct of the Applicant is relied upon to justify the decision to terminate employment, I would need to be satisfied that the conduct as alleged occurred. A mere suspicion of conduct does not amount to a valid reason. 177

[99] For the reasons earlier given, I am not persuaded that the Applicant breached any confidentiality requirement, principally because I am not persuaded that the confidentiality documents were binding on him nor am I persuaded that the Applicant was instructed that he could not speak to any employee for the purposes of enabling him to respond to the allegations. In any event, as I have also concluded, even if such an obligation existed, I am not persuaded that the conduct in which the Applicant engaged in by approaching employees for the purposes of refreshing his memory in respect of a particular comment which was attributed to him in the allegations was sufficiently serious to provide a sound, defensible or well-founded reason for dismissal.

[100] I am therefore not persuaded that the conversations that the Applicant freely admits he had with three employees of the Respondent concerning statements attributed to him provide foundation for a conclusion that there was a valid reason for dismissal.

[101] I have also concluded that the Applicant was not dishonest, nor did he mislead, Mr Harper in the manner alleged. I have also concluded that the Applicant’s response to Mr Harper was not likely to be true to the extent that the Applicant said he could not recall whether he discussed the investigation with Mr Chatelier. It is uncontroversial that dishonesty in the context of an employer investigation into allegations can itself provide a valid reason for dismissal. But this need not be the result in every case. Ultimately, it is a question of circumstances and degree. There is little doubt in my mind that the Applicant should have honestly answered the question. However, I do not consider for the reasons earlier stated that the Applicant’s response provides a foundation for concluding that there was a valid reason. To briefly recap, it is not the case that the Applicant sought to cover up or hide the fact that he had spoken to Mr Chatelier. After all, it was he that told the VCCI investigator that he had done so. He also told Mr Harper that he had done so. He also disclosed that he had spoken to others. The circumstances of his disclosure also support his version of events that the only reason he had the conversation was for the purposes of refreshing his memory. The Applicant believed that he was entitled to speak to other employees for the purposes of refreshing his memory. Given the way in which the Respondent went about seeking to deal with the issue of the confidentiality documents, this view was not without merit, particularly given that the Applicant had been asked to sign but refused to sign the documents. The VCCI investigator did not give him the documents contrary to the Respondent’s belief that she had done so. The VCCI investigator does not appear to have said anything to him when he disclosed the fact that he had done so. Nor did Mr Harper take any step to further pursue the alleged breach when the Applicant had disclosed to him on 28 November 2017 that he had spoken to Mr Chatelier.

[102] The Respondent appears to attach the dishonest conduct with the breach it says occurred of the confidentiality requirement. The breach has not been established nor has the dishonesty as alleged by the Respondent been made out. Thus the Applicant’s response that he could not recall whether he had discussed the investigation with Mr Chatelier needs to be judged in that context. Implicit in the question from Mr Harper was that there was some wrongdoing on the part of the Applicant in discussions that he had with Mr Chatelier. I have concluded, and I think consistently with Mr Lacy’s conclusion during the disciplinary appeals hearing 178 canvassing the same allegations, that the Applicant’s conversation with Mr Chatelier did not involve wrongdoing. Foolish as his response was, I am not persuaded in the circumstances that it provides a valid reason for dismissal.

[103] I have also earlier concluded that the surreptitious recordings did not provide a valid reason.

[104] It follows from the above that there was not a valid reason for dismissal relating to the Applicant’s capacity or conduct. The absence of a valid reason weighs in favour of a conclusion that the dismissal was unfair.

(b) Notification of the valid reason – s.387(b)

[105] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 179  in explicit terms,180 and in plain and clear terms.181 In Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport),182 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their 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 170CG(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.” 183

[106] As I have already concluded, there was no valid reason for the dismissal and as such the question whether there was notification of the valid reason prior to dismissal does not strictly arise. There is no dispute, however, that save for the reason connected with the surreptitious recording of conversations by the Applicant, the Respondent advised the Applicant of the reasons, in a general way so far as breaches of confidentiality are concerned, and in a specific way so far as the conversation with Mr Harper is concerned, on which it ultimately relied to justify the dismissal. It did so before the dismissal took effect.

[107] Given my conclusion as to the absence of a valid reason it seems to me in the circumstances of this case that the notification consideration weighs neutrally.

(c) Opportunity to respond – s.387(c)

[108] An employee protected from unfair dismissal should be given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee.

[109] There was no valid reason for dismissal related to the Applicant’s capacity or conduct and thus no opportunity to respond to any valid reason for the dismissal.

[110] I agree with the Applicant’s contention which was to the effect that the opportunity to respond to the reasons ultimately relied on by the Respondent was confined by the absence of particulars of the alleged contravention of the confidentiality requirements. Moreover, the Applicant was confronted by these allegations at a meeting convened to discuss the outcome of the VCCI investigation. I do not consider that the Applicant was given a proper opportunity to respond to the allegations concerning the confidentiality breach.

[111] In these circumstances, this consideration weighs in favour of a conclusion that the dismissal was unfair.

(d) Unreasonable refusal by the employer to allow a support person – s.387(d)

[112] There is no dispute that the Respondent allowed the Applicant the opportunity to have a support person present at all material times. It appears that at all material time he was represented. That this occurred weighs in favour of the Respondent.

(e) Warnings regarding unsatisfactory performance – s.387(e)

[113] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 184 It is not contended that the Applicant’s dismissal related to unsatisfactory performance. In the circumstances this consideration weighs neutrally.

(f) Impact of the size of the Respondent on the procedure followed – s.387(f)

[114] The Respondent operates a significant public transport business in Victoria. Neither party contended that the Respondent’s size had any likely impact on the procedure followed to affect the Applicant’s dismissal. This factor therefore weighs neutrally.

(g) Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)

[115] The Respondent has on staff a number of human resources professionals to provide human resources services and advice. The Respondent appears to have involved dedicated human resources personnel both in the investigation and in the procedure adopted to affect the dismissal. However, as this consideration is concerned with “the degree to which the absence of dedicated human resources management specialists or expertise” would be likely to have the identified impact, this consideration weighs neutrally in the circumstances of this case.

(h) Other relevant matters – s.387(h)

[116] Section 387(h) provides the Commission with broad scope to take into account any other matters it considers relevant.

[117] I consider the following matters to be relevant and have also taken these into account:

•  First, the Applicant has a good disciplinary record;

•  Secondly, the Applicant has a substantial period of employment;

•  Thirdly, at the time of his dismissal the Applicant was 59 years of age and given his particular experience obtained during nearly four decades of service it must be said it will be a difficult prospect for the Applicant to obtain alternative employment; and

•  Fourthly, the Applicant’s response to Mr Harper though not providing a valid reason was nonetheless not true.

[118] The first three of these matters identified above are relevant and weigh in favour of a conclusion that the dismissal of the Applicant was unfair. The fourth matter goes the other way.

[119] As noted earlier, the Applicant produced during the course of proceedings various recordings 185 he had made of conversations both with employees of the Respondent and with various of his union colleagues. The recordings were produced at the time after the parties had closed their evidentiary cases. Neither party sought to recall any witness but I allowed both parties to make submissions on the content and accuracy of the tape recordings, and in particular, in comparison to the notes of conversations produced by the Applicant. One of the recordings discloses a conversation on 14 February 2018, between the Applicant, Mr Anderson and Ms Dunn in which they discussed responding to an allegation that he had lied to Mr Harper during the Applicant’s meeting with Mr Harper on 21 November 2017. Without reproducing the transcription of the conversation, it seems to me that the recording tends to confirm my view that the Applicant’s response to Mr Harper was not true. I have not however had regard to the recording of the conversation in order to come to my conclusion because the content of the recording was not able to be put to the Applicant in order to enable him to respond.

[120] As to the other aspects of the recordings highlighted by the Respondent in its submissions about the recordings, and in particular the contention that I should draw the inference that the conduct revealed in the recordings could only further jeopardise the prospect of the Respondent being able to have trust and confidence in the Applicant, and that reinstatement is not appropriate in the circumstances of this case, these are matters that can be addressed during the remedy phase of this proceeding.

[121] Taking all of these matters into account, the considerations in s.387 (a) and (c) and the preponderance of matters in (h) weigh in favour of a conclusion that the dismissal was unfair. The considerations in s.387 (b), (e), (f) and (g) weigh neutrally while only (d) and one matter in (h) weigh the other way. I therefore consider for the reasons given in this decision, the Applicant’s dismissal was harsh and unjust. It is unjust because the conduct alleged was not shown to have occurred or to have the consequence alleged and so was not misconduct. It was also harsh because the response (dismissal) was disproportionate to the conduct. Ultimately, the underpinning concern was the integrity of the investigation. The Applicant had disclosed the fact of the conversations. It was not the Respondent which discovered these facts. The Applicant had so disclosed months earlier to Mr Harper and to the VCCI investigator. The Applicant did not hide these facts. Thus even if it believed the Applicant to have breached confidentiality, the breach viewed objectively was a minor breach. Moreover, the Respondent does not appear (that is, there is no evidence) to have taken into account by way of mitigation, the fact of the Applicant’s disclosure, or that the disclosure was consistent with his belief that he had not breached confidentiality.

Conclusion

[122] For the reasons given, the Applicant’s dismissal was unfair.

[123] I now need to consider the remedy, if any, that should be ordered in the circumstances. The parties are requested to confer on the directions that should be made to progress the application to hearing in order that the question of remedy, if any, can be determined. The parties are to file in my Chambers by 5.00pm on Tuesday, 4 December 2018, a document setting out consent directions, or in the absence of consent, a document or documents setting out the respective positions of the parties in relation to directions that should be made. I will thereafter fix a further hearing date. The parties are also encouraged to confer on the question of remedy and to explore the possibility of reaching a consensus without the need for a further hearing. A member assisted conciliation conference can be arranged to assist the parties if the parties wish to participate in such a conference.

DEPUTY PRESIDENT

Appearances:

R Reitano of Counsel for the Applicant.

R O’Neill of Counsel for the Respondent.

Hearing details:

2018.

Melbourne:

June 18 and 19, August 1.

Final written submissions:

Applicant, 30 July 2018.

Respondent, 30 July 2018.

Further submissions on the recordings:

Respondent, 15 August 2018.

Applicant, 22 August 2018.

Printed by authority of the Commonwealth Government Printer

<PR701011>

 1   Exhibit 1 at [6]–[7]

 2   Ibid at [8] –[10]

 3   Exhibit 1 at Attachment MM-14

 4   Section 396 of the Fair Work Act 2009 (Cth)

 5   Exhibit 1 at Attachment MM-14; Exhibit 6 at Attachment ER-11

 6   Ibid

 7   Ibid

 8   Respondent's outline of closing submissions dated 30 July 2018 at [1]

 9   Ibid at [2]

 10   Ibid at [3]

 11   Ibid at [4]

 12   Exhibit 1 at [15] – [16]; Exhibit 6 at [5]

 13   Exhibit 1 at [16]; Attachment MM-1

 14   Exhibit 6 at [5]; Exhibit 1 at [16]

 15   Exhibit 1 at [17]; Respondent’s outline of submissions dated 4 June 2018 at [7]; Exhibit 6 at [7]

 16   Exhibit 1 at [17]; Exhibit 6 at [7]

 17   Exhibit 1 at [18]

 18   Ibid at [19]

 19   Exhibit 6 at [7]

 20   Exhibit 1 at [22]

 21   Ibid at [24]

 22   Ibid at [25]

 23   Exhibit 1 at Attachment MM-2

 24   Ibid

 25   Ibid

 26   Exhibit 1 at [28] – [29]

 27   Exhibit 8 at [3]-[4]

 28   Ibid at [5]

 29   Exhibit 7 at [10]; Respondent’s outline of submissions dated 4 June 2018 at [7]

 30   Exhibit 1 at [30]

 31   Ibid

 32   Exhibit 7 at [10]; Respondent’s outline of submissions dated 4 June 2018 at [7]; Transcript at PN1692-PN1693

 33   Exhibit 1 at [31]

 34   Exhibit 9 at [13]-[14]; Exhibit 6 at Attachment ER-6

 35   Exhibit 1 at [33]-[34]; Attachment MM-3

 36   Exhibit 1 at [36]; Exhibit 7 at [12] and Attachment SH-1

 37   Respondent’s outline of submissions dated 4 June 2018 at [7]

 38   Exhibit 1 at [37]-[38]

 39   Exhibit 7 at [7]

 40   Exhibit 1 at Attachment MM-9

 41   Ibid at Attachment MM-4

 42   Ibid at Attachment MM-5

 43   Ibid at Attachment MM-6

 44   Ibid at [43]

 45   Respondent’s outline of submissions dated 4 June 2018 at [7]; Exhibit 6 at [17]

 46   Exhibit 1 at [44]

 47   Ibid at [47]

 48   Exhibit 1 at [48]; Exhibit 7 at [13]; Exhibit 6 at [21]

 49   Exhibit 1 at Attachment MM-9

 50   Exhibit 1 at [50]; Transcript at PN1095-PN1097

 51   Exhibit 1 at [50]; Exhibit 6 at [23]; Respondent’s outline of submissions dated 4 June 2018 at [7]

 52   Exhibit 1 at [51]; Exhibit 6 at [25]

 53   Exhibit 1 at [52]-[53]; Exhibit 6 at [31]

 54   Exhibit 1 at [53]; Exhibit 6 at [30]

 55   Exhibit 6 at [31]; Exhibit 1 at [53]

 56   Exhibit 6 at Attachment ER-9; Exhibit 1 at Attachment MM-10

 57   Exhibit 6 at Attachment ER-10; Exhibit 1 at Attachment MM-11

 58   Exhibit 1 at [56]

 59   Ibid at [57]; Exhibit 6 at [39]

 60   Exhibit 1 at Attachment MM-12; Attachment MM-13

 61   Exhibit 1 at Attachment MM-14; Exhibit 6 at Attachment ER-11

 62   Exhibit 1 at Attachment MM-15; Attachment MM-16

 63   Exhibit 1 at [62]

 64   Ibid at Attachment MM-17 at [29]-[30]

 65   Ibid at Attachment MM-18

 66   Ibid at Attachment MM-19

 67   Transcript at PN1441-PN1442

 68   Exhibit 6 at Attachment ER-2

 69   Ibid at Attachment ER-3

 70   Ibid at clause 2.3

 71   Exhibit 1 at [16]; Exhibit 6 at [5]

 72   Exhibit 1 at Attachment MM-1

 73   Ibid at [16]

 74   Exhibit 4 (note of meeting on 28 September 2017)

 75   Transcript at PN1431- PN1455

 76   Ibid at PN1282 – PN1283

 77   Ibid at PN1284 – PN1285

 78   Ibid at PN1261 – PN1262

 79   Exhibit 6 at [7]

 80   Transcript at PN1293 – PN1296

 81   Ibid at PN1450-PN1455

 82   Exhibit 6 at [7]

 83   Ibid

 84   Exhibit 1 at [17]

 85   Ibid

 86   Ibid

 87   Exhibit 4 (note of meeting on 18 October 2017)

 88   Exhibit 2 at [5]

 89   Exhibit 3 (Meeting Tuesday 14th November 2017 – Record of interview – Mark Moran)

 90   Exhibit 6 at Attachment ER – 3 at clause 2.3

 91   Exhibit 6 at Attachment ER-3

 92   Exhibit 6 at Attachment ER – 2

 93   Transcript at PN256

 94   Ibid at PN257 – PN263

 95   Exhibit 1 at [28]

 96   Ibid

 97   Exhibit 8 at [3]

 98   Ibid at [4]

 99   Ibid at [5]

 100   Transcript at PN1762 – PN1776

 101   Ibid at PN1625 – PN1634

 102   Transcript at PN1790

 103   Exhibit 6 at Attachment ER – 7, Annexure E at p. 2

 104   Ibid at Attachment ER – 7, Annexure O

 105   Exhibit 4

 106   Exhibit 1 at [30]

 107   Ibid

 108   Exhibit 8 at [10]

 109   Ibid

 110   Ibid

 111   Exhibit 4

 112   Transcript at PN707

 113   Ibid at PN766

 114   Exhibit 2 at [39]

 115   Transcript at PN1629 – PN1630

 116   Ibid at PN1636 – PN1637

 117   Exhibit 7 at [11] – [12]

 118   Exhibit 1 at [36]

 119   Transcript at PN1663 – PN1665

 120   Ibid at PN1666 – PN1667

 121   Exhibit 4

 122   Exhibit 1 at [30]

 123   Exhibit 3 (Notes of meeting with Shaun Harper 28 November 2017)

 124   Ibid

 125   Transcript at PN1667

 126   Exhibit 3

 127   Exhibit 2 at [39]

 128   Transcript at PN1678

 129   Ibid at PN1682

 130   Ibid at PN1686 – PN1688

 131   Ibid at PN1689

 132   Ibid at PN1690 – PN1691

 133   Ibid at PN1695

 134   Ibid at PN1677

 135   Exhibit 3 and Exhibit 10

 136   Exhibit 7 at [12]

 137   Exhibit 1 at [29]

 138   Ibid

 139   Exhibit 4

 140   Exhibit 6 at Attachment ER – 7, Annexure E at p. 2

 141   Ibid at Attachment ER – 7, Annexure G

 142   Exhibit 1 at [31]

 143   Ibid

 144   Exhibit 4

 145   Exhibit 9 at [13]

 146   Ibid at [11] – [12]

 147   Exhibit 6 at [14]

 148   Ibid

 149   Ibid

 150   Ibid

 151   Ibid at [16]

 152   Exhibit 6 at Attachment ER – 6

 153   Transcript at PN1947 – PN1953

 154   Ibid at PN1968 – PN1969

 155   Exhibit 9 at [13]

 156   Ibid at PN1957 – PN1959

 157   Exhibit 6 at Attachment ER – 7, Annexure E at p.2

 158   Ibid at Attachment ER – 7, Annexure M

 159   It is to be noted that originally an allegation of intimidation or victimisation and/or a deliberate attempt to influence or attempt to intimidate other employees was made (Exhibit 6, Attachment ER – 10), however the letter of termination does not suggest that any such conduct was substantiated or that it formed part of the reasons for dismissal (Exhibit 6, Attachment ER – 11)

 160   Exhibit 3; Exhibit 4; Exhibit 10; Transcript at PN147-PN154; Transcript at PN161-PN166; Transcript at PN187-PN188; Transcript at PN233

 161   Respondent’s submissions on recordings tendered by the Applicant dated 15 August 2018 at [4]

 162   Ibid at [8]-[9]

 163   Ibid at [12]

 164   Ibid at [16]-[18]

 165   Outline of submissions on behalf of Mark Moran dated 30 July 2018 at [36]

 166   Ibid at [37] and [39]

 167   [1986] HCA 40; (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

 168    See Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leclee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

 169    (1987) 16 FCR 167 cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] and by Katzmann J in CFMEU v FWA (2011) 195 FCR 74 at [103]

 170   (1987) 16 FCR 167 at 184

 171   [1986] HCA 40; (1986) 162 CLR 24 at [15], pp 39-41

 172   (1995) 185 CLR 410

 173   Ibid at 465

 174   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377–378

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

 176   Ibid

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

 178   Exhibit 1 at Attachment MM – 17

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

 180   Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at 150–151

 181   Previsic v Australian Quarantine Inspection Services Print Q3730

 182   (2000) 98 IR 137

 183   Ibid at 151

 184   Annetta v Ansett Australia (2000) 98 IR 233 at 237

 185   Exhibit 10