DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Warren Nason
v
V/Line Pty Ltd T/A V/Line
(U2018/5458)

Application for an unfair dismissal remedy.

[1] Mr Warren Nason (the Applicant) has made an application for an unfair dismissal remedy in relation to his dismissal by V/Line Pty Ltd T/A V/Line (the Respondent, V/Line). The application was made under section 394 of the Fair Work Act 2009 (the Act).

[2] There was a Member Assisted Conciliation held on 20 August 2018 but the matter was not settled. The application was heard on 29 and 31 August 2018. Mr Nason gave evidence and for the Respondent, Ms Rajinder Kaur, Booking Clerk; Mr Michael Brady, Acting Regional Manager (North-North/East); Mr Jonathan McKeown, Acting General Manager – Customer Operations; Mr Erin Tomkins, Station Manager, Southern Cross Station and Ms Deborah Vernem, Booking Clerk gave evidence.

[3] Ms Jennifer Patterson, Acting General Counsel; Ms Teresa Pertzel, Services Manager and Ms Amanda Edsall provided witness statements but were not required for cross examination.

[4] Mr Nason was represented by Mr G Dircks, consultant and V/Line by Mr M Minucci, of Counsel.

[5] Written Closing Submissions were provided on behalf of the Applicant on 4 October 2018 and on behalf of the Respondent on 25 October 2018. Response (Reply) Submissions on behalf of the Applicant were filed on 1 November 2018. Further submissions were filed by the Respondent, on 22 November 2018, which set out the new submissions and/or evidence not previously relied on that were said to be contained in the Applicant’s Response Submissions of 1 November 2018. The Applicant provided a written response to the Respondent’s submissions regarding new submissions and/or evidence, on 27 November 2018.

[6] A confidentiality order 1 was issued by the Commission, on 31 August 2018, that specific attachments to the witness statement of Mr McKeown remain strictly confidential and restricting access to that material.

Background

[7] It is useful in this matter to set out a brief chronology of events:

•  20 October 2008 - Mr Nason commenced employment with V/Line.

•  6 February 2018 - Mr Nason was suspended on full pay.

•  8 February 2018 - Mr Nason was sent a letter setting out five allegations (A, B, C, D and E) regarding his inappropriate and unprofessional workplace behaviour.

•  11 April 2018 - Mr Nason was advised that four of the five allegations (A, C, D and E) were substantiated. Allegation B was not substantiated. Mr Nason was invited to respond to the findings and put forward any mitigating circumstances in relation to the preliminary view that dismissal was the appropriate disciplinary outcome.

•  19 April 2018 - Mr Nason provided a written response to the findings.

•  9 May 2018 - Mr Nason was provided with a letter of termination which set out the findings and Mr Nason’s responses.

Legislative framework

[8] Section 387 of the Act sets out the criteria that the Commission must take into account in considering whether a dismissal was harsh, unjust or unreasonable. It provides as follows:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[9] I will consider each of the criteria in turn.

Section 387(a) - valid reason for the dismissal?

[10] Mr Nason was dismissed for inappropriate and unprofessional workplace behaviour on the grounds that four allegations had been substantiated following a thorough investigation by V/Line. The allegations concerned four incidents which were as follows:

Allegation A - 2 November 2017

[11] It was alleged that, on 2 November 2017, in response to a concern raised in an email from Mr Kibbis about shift coverage, Mr Nason sent an email to Mr Kibbis, in which he encouraged Mr Kibbis, together with other V/Line employees, to decline “cashier shifts” when rostered on for the booking office which was making Mr Tomkins and Ms Edsall look good “and giving them fodder to reduce staffing levels, let them cover the cashier with an SM at $50 per hour!!”. 2 This was said to be an attempt by Mr Nason to encourage other employees to collude against V/Line management and interests.3

Allegation C - 22 January 2018

[12] V/Line alleged that, during a telephone conversation with Mr McKeown, Mr Nason spoke to Mr McKeown in a discourteous and disrespectful manner by raising his voice and behaving in an intimidating manner. 4

Allegation D - 5 February 2018

[13] It was alleged that Mr Nason placed a note on the V/Line A-Frame sign stating that the Coach Booking Office was “Closed DUE TO BUDGET CUTS” and positioned the A-Frame out the front of the Coach Booking Office in view of the public and other Southern Cross Station staff. V/Line contended that, by taking this action, Mr Nason deliberately undermined or attempted to undermine public trust and confidence in the integrity of V/Line’s operations and the effective and efficient running of V/Line.

Allegation E - 5 February 2018

[14] V/Line alleged that Mr Nason left his workstation without authority and closed the Coach Booking Office at 1.51pm prior to the end of his rostered shift at 2.45pm.

[15] The Commission is required, in cases where the reason for dismissal relates to the conduct of the employee, to determine for itself, on the basis of the evidence before it, whether the alleged conduct took place and what it involved. Therefore, in dealing with the requirements of s.387(a) of the Act - was there a valid reason for the dismissal - the Commission will, in the first instance, address each of the allegations and make findings of fact in relation to the allegations. The Commission will then address each of the other subsections of s.387 of the Act in turn.

Allegation A

[16] It was not disputed by Mr Nason that he had sent the email to Mr Kibbis that was the subject of this allegation. However, the reason why Mr Nason sent the email was not agreed between the parties.

Submissions

Applicant

[17] The Applicant submitted that this had not been raised as an issue of misconduct for some three months and then it was put as an attempt by the Applicant “to encourage other employees to collude and work against management”. It was further stated that it was some seven months in the past at the date of dismissal and that this delay in action could be seen as condonation. It was also said that the email could also be seen as an isolated and aberrant act that may make the dismissal harsh and was not something that could legitimately be regarded as misconduct. 5

[18] It was submitted that the email be taken in the context that the Applicant was a member of a working party dealing with “understaffing issues” and that the email exchange with Mr Kibbis was addressing shift coverage matters. It was said that it was not calling for staff to decline shifts nor engage in any industrial action and it was certainly not collusion as it did not meet the definition of that term. Therefore, the first part of the reason for the dismissal was not a valid reason. 6

[19] Mr Dircks also contended that there was no contrary evidence that the Applicant’s perspective in sending the email is not correct. Mr Nason’s proposed solution was said to be coherent and potentially cost effective. Even if the Applicant’s suggestion was interpreted as serving his and the other booking clerks’ interests, the question was asked as to what was wrong with that? 7

[20] The Respondent’s submission that Mr Nason’s email should be considered as industrial action was rejected by the Applicant. 8

Respondent

[21] On the other hand, it was submitted by V/Line that, by responding in the manner in which Mr Nason did to Mr Kibbis’ email, Mr Nason was encouraging Mr Kibbis and other staff to undermine V/Line management by refusing shifts when asked. It was alleged that this was contrary to Clauses 3.2, 4.1 and 4.4 of V/Line’s Code of Conduct. 9

[22] The Respondent also argued that, in attempting to convince Mr Kibbis to decline shifts, Mr Nason was attempting to organise or encourage unlawful industrial action. 10 Mr Nason’s evidence that the email conversation between himself and Mr Kibbis was about increasing customer service was rejected.11

Considerations and conclusions

[23] As it was common ground that Mr Nason responded to Mr Kibbis by sending the email in question to Mr Kibbis on 2 November 2017, I find that Mr Nason sent the email to Mr Kibbis on 2 November 2017.

[24] V/Line contended that the content of the email was evidence of Mr Nason’s attempt to encourage other employees to collude to work against V/Line’s management and V/Line’s interests. Mr Nason’s email was sent in response to an email sent by Mr Kibbis, to Customer Service- SCS Services Managers with additional people being cc’d in. In his email, Mr Kibbis set out the situation in relation to a lack of shift coverage in the booking office on 1 November 2017 and requested that all shifts in the booking office be covered. Mr Kibbis also explained the reasons for the request.

[25] In contrast, Mr Nason suggested in his email that Mr Kibbis and two other employees, decline cashier shifts when they were rostered in the booking office. This was because taking cashier shifts was said to be making Mr Tomkins and Ms Edsall look good. Mr Nason’s email also said that this was ‘giving them fodder to reduce staffing levels”. Mr Nason then suggested to let them cover the cashier with a Station Manager at $50 per hour.

[26] It is my view that Mr Nason’s response to a constructive email from Mr Kibbis, was unnecessarily negative and nasty. The email was critical of management in a personal way and seemed to be framed in an ‘us and them’ mentality. There seemed to be little or no respect accorded to management. Therefore, I find that Mr Nason was suggesting to Mr Kibbis that he and two colleagues work against management as the solution for the lack of shift coverage that Mr Kibbis was complaining about.

Allegation C

[27] It was alleged by V/Line that, on 22 January 2018, during a telephone conversation with Mr McKeown, Mr Nason spoke in a discourteous and disrespectful manner by raising his voice and behaving in an intimidating manner.

[28] The direct witness evidence in relation to this allegation was provided by Mr Nason and Mr McKeown.

[29] It was Mr Nason’s evidence that:

•  He had telephoned Mr Tomkins on 19 January 2018 but denied that he was upset. 12

•  V/Line had made a decision not to include his partner (Ms Lothian) in the Working Group but he was not sure if it was Mr Tomkins’s decision. 13

•  He was not happy that Ms Lothian was not in the Working Group because Ms Lothian had full medical clearance to return to work. Mr Nason stated that he had telephoned Mr Tomkins to ask why. 14

•  He confirmed that he had said to Mr Tomkins “who’s going to stop it?” in relation to Ms Lothian’s participation as part of the Working Group. Mr Nason said that it was possible that he had also said that Ms Lothian would be coming regardless of what Mr Tomkins said. 15

•  He thought that V/Line was going out of its way to stop Ms Lothian from coming to the Working Group meeting. 16

•  It was not in his witness statement but he stated that he had been asked by the Working Party to ring Mr McKeown. 17

•  The Working Party Group was not aware that Ms Edsall and Mr Tomkins were coming to the first meeting. The Working Party Group wanted to have an informal discussion about the issues with Mr McKeown first. They were said to be quite happy to have management there at subsequent meetings. 18

•  He denied being aggressive over the phone to Mr McKeown when he spoke to him on 22 January 2018. 19

•  He denied being blunt and saying to Mr McKeown that the Working Group meeting could not go ahead because he had not had enough time to discuss the issues with the staff in the Booking Office. Mr Nason explained that he had said that the meeting could still go ahead. 20

•  He denied referring, at any stage, to the Working Party as his Working Party. 21

•  He denied raising his voice and shouting down the phone at Mr McKeown and cutting Mr McKeown off when he tried to speak or being discourteous. 22

•  It was a very amicable conversation with the only disagreement being that the Working Party members felt that local management should come to the second or third meeting which Mr McKeown had agreed to. Mr Nason stated that there were no demands. 23

[30] It was Mr McKeown’s evidence that:

•  When he answered the phone, Mr Nason had told him bluntly that the first Working Group meeting could not go ahead because Mr Nason had not had enough time to discuss the issues in the booking office with the staff. 24

•  Mr Nason seemed to be very angry. 25

•  He told Mr Nason that the meeting had been organised a week earlier and that he had spoken to Mr Nason a week earlier about it. 26

•  Mr Nason told him that local management were not to attend his Working Group because they had failed to address the issues raised by staff and so had forfeited their right to be present. 27

•  He had explained that local management were to attend as they were required so that the Working Group could resolve the operational issues identified in Mr King’s report. Mr McKeown had also advised that Joe from the Rail, Tram and Bus Union (RTBU) would also be attending. 28

•  Mr Nason had said that Joe did not need to attend and that the booking office staff wanted to meet with him directly about the issues without local management. 29

•  Mr Nason had raised his voice and was speaking over him saying more than once “Are you prepared to meet with us to discuss the issues?”. 30

•  He had explained that an independent person had been organised to speak with all staff and that he did not see the need to speak with just four of them. 31

•  Mr Nason was still angry and said that they were going round in circles and said again that there had not been enough notice of the meeting and asked again whether he was prepared to meet with the booking office staff without local management. 32

•  As Mr Nason was not willing to move from his position, he agreed to meet with the Booking Office staff without local management on this occasion and to reschedule the meeting for a week later. Mr McKeown had explained to Mr Nason that, going forward, Mr Tomkins and Ms Edsall would be asked to join the meeting. 33

•  He had indicated that he would need to see when Joe would be available and Mr Nason again said that Joe was not required to attend. Mr McKeown had repeated that Joe had accepted the invitation to be part of the Working Group. 34

•  Mr Nason thanked him for agreeing to meet with them. 35 Mr McKeown agreed that, at the end of the conversation, Mr Nason was quite courteous.36

•  He had created a file note of the discussion with Mr Nason, even though it was not his normal practice to do so. Mr McKeown said that he had made the file note because the nature of the conversation had been incredibly concerning as he had never before, at work, been spoken to in the way Mr Nason had spoken to him. 37

•  In the week following this conversation, he has spoken to Ms Gammon, HR and gave her feedback about the conversation with Mr Nason. Mr McKeown had told HR that, during the conversation with Mr Nason, Mr Nason had been quite angry and upset. 38

•  He did not think that he was complaining but rather noting that the conversation had occurred and its contents. 39 Mr McKeown also stated that he had felt uneasy with the nature of the conversation. Mr McKeown explained that he had issued the file note as he was concerned with the conversation and so it was a complaint.40

•  He may not have used the word “intimidation” but he felt uncomfortable with the conversation. 41 He was very concerned with the aggression and the bullying or yelling down the phone at him by Mr Nason. In 20 years as a public servant, Mr McKeown said that he had never been spoken to like that over the phone.42

•  Ms Gammon had requested a copy of the file note he had made. 43

Submissions

Applicant

[31] It was submitted that the Applicant denied that he had spoken discourteously to Mr McKeown or that he had spoken over him or raised his voice. The Applicant noted that, in Mr McKeown’s own file note, there was no suggestion that Mr Nason had intimidated Mr McKeown or was discourteous or disrespectful. It was argued that, if that had been the case the file note would have mentioned it. 44

[32] Further, the Applicant argued that the subsequent email correspondence affirmed that Mr Nason was a key member of the working group and no reference was made of the prior discussion. 45

[33] The Applicant contended that, on either version of events, there was no misconduct by Mr Nason which would warrant dismissal. Mr McKeown’s file note was highlighted in that it recorded that Mr Nason had thanked Mr McKeown at the end of the conversation and had not mentioned that he had felt intimidated. It was argued that Mr McKeown had grossly exaggerated the impact of the conversation with Mr Nason and that Mr McKeown’s subjective assertion that he was bullied by Mr Nason was not made out on the evidence and so was not a basis for dismissal. 46

V/Line

[34] The Respondent submitted that Mr Nason telephoned Mr McKeown regarding the Working Group Meeting. It was said that during that call, Mr Nason:

•  Said that the meeting could not proceed as Mr Nason had “not had enough time to discuss the issues in the booking office with the staff”;

•  Said that local management should not attend the meeting as they were “part of the problem” and that by not addressing a number of issues raised by staff, they had forfeited their right to participate;

•  Raised his voice and shouted at Mr McKeown;

•  Cut Mr McKeown off when he tried to speak; and

•  Was discourteous and disrespectful toward a significantly senior colleague.

[35] It was said that such conduct was also contrary to Clauses 3.2, 4.1 and 4.4 of the Code of Conduct. 47

[36] In considering this allegation, V/Line contended that the Commission was required to weigh the evidence of Mr McKeown against the evidence of Mr Nason. This was said to be in circumstances where it was never suggested in cross-examination that Mr McKeown was lying or making his evidence up nor was there any motive put to Mr McKeown as to why he would be exaggerating his evidence. The Respondent stated that Mr McKeown’s evidence should be preferred. 48

Considerations and conclusions

[37] The Commission has before it two very different and contradictory accounts of the nature and content of the telephone conversation between Mr Nason and Mr McKeown on 22 January 2018.

[38] The allegation concerns the conduct of Mr Nason towards Mr McKeown during a telephone call. I have considered carefully all of the material before me on this issue. On the balance of probability, I find that it is probable that Mr Nason raised his voice during the conversation and behaved in a manner that resulted in Mr McKeown feeling uncomfortable and concerned about the aggression and bullying/yelling down the phone from Mr Nason. Such behaviour can be described as discourteous and disrespectful.

[39] In making this finding, I accept Mr McKeown’s evidence regarding the way in which Mr Nason spoke to him which had prompted Mr McKeown, unusually, to write a file note of the conversation. I found Mr McKeown to be a credible witness. It is also noted that Mr McKeown raised the nature of the conversation with HR which resulted in a request for Mr McKeown to email the file note he had taken.

[40] In accepting Mr McKeown’s account of events, consideration has also been given to Mr Nason’s evidence about his conversation with Mr Tomkins (that preceded this incident). It was Mr Nason’s evidence that he was not happy that Ms Lothian was not included in the Working Group and that he thought that V/Line was going out of its way to stop Ms Lothian from coming to the Working Party meeting.

Allegation D

[41] V/Line alleged that Mr Nason had placed a note on the V/Line A-frame sign stating that the Coach Booking Office was “Closed DUE TO BUDGET CUTS” and then positioned the A-frame out the front of the Coach Booking office in view of the public and other Southern Cross Station staff. This was stated to be a deliberate undermining or attempt to undermine public trust and confidence in the integrity of V/Line by Mr Nason.

Evidence

Mr Nason

[42] Mr Nason gave evidence that:

•  The Station Master or a Services Manager is responsible for putting out the A-Frame which says that the Booking Office is closed. 49

•  Ms Pertzel did not tell him to put the A-Frame out but she told Ms Kaur. 50

•  Ms Kaur told him to put the A-Frame out. 51

•  He took the A-Frame out and put it in the bollard area where the customers queue up. 52

•  He did not put the sign on the A-Frame that the Coach Booking Office was “Closed DUE TO BUDGET CUTS”. At no point did he ever see that sign on the A-Frame. 53

•  He confirmed that the CCTV showed him walking past the sign and that he was carrying his cash bag. Mr Nason denied that he was carrying a piece of paper which he attached to the A-Frame. 54

•  He denied that he had put the sign on the A-Frame because he wasn’t happy that his overtime shifts had been cut. 55

Ms Kaur

[43] It was Ms Kaur’s evidence that:

•  She did not recall seeing the A-Frame at all. She closed her window, counted the money and walked out. 56

•  She did not recall Mr Nason taking the sign out. Ms Kaur did not recall anything about the sign as it was put out every day. It was agreed that the sign only went out if the Booking Office was closing early and that, when there was an afternoon shift, no one on the day shift put the sign out. 57

•  She did not recall seeing the A-Frame in the Coach Booking Office, where it was kept. 58

•  On 5 February 2018, it was only herself and Mr Nason who were the only Booking Clerks who came in and out of the Coach Booking Office. Ms Kaur explained that security staff normally came in as well as the Station Masters. 59

•  She did not think that any security staffed walked in and out of the Booking Office on 5 February 2018. 60

•  When they were closing early, the Station Master would normally come and put the A-Frame out. 61 Ms Kaur stated that she did not see a Station Master come in or out of the Booking Office while she was on shift that day.62

•  She did not recall anyone else coming into the Booking Office on 5 February 2018. 63

Ms Pertzel

[44] It was Ms Pertzel’s evidence that:

•  It is the Services Manager’s responsibility to take the Closed A-Frame out once the Booking Office is closed or to direct Booking Office staff to do this. Booking Office staff are not authorised to put the A-Frame out without direction. 64

•  She did not direct Mr Nason to put the A-Frame out. She was not aware of anyone else giving Mr Nason that direction. She did not speak to or direct Ms Kaur to put the A-Frame out. 65

Submissions

Applicant

[45] It was stated that the Applicant’s evidence was that it was his understanding that he was instructed to place the sign by the stationmaster, Ms Pertzel. The Applicant submitted that, if that had been done in error, it did not warrant dismissal. 66

[46] Further, the Applicant argued that there was no corroborating evidence that Mr Nason had attached anything to that sign. 67 It was contended that there was little on the CCTV footage that could justify dismissal. The Applicant argued that the CCTV footage did not show what Mr Brady claimed to see (Mr Nason walking past holding a white piece of paper and then walking away without the white piece of paper). It was stated to be more probable that Mr Nason was carrying a cash bag and a small suitcase (Mr Nason’s evidence).68

[47] The Applicant submitted that there was no evidence about when the note was placed on the A-Frame or by whom. As the Commission only has the evidence from the Applicant before it, that he did not place the sign on the A-Frame, this can be completely ruled out. 69 Further, it was said to be clear that Mr Nason would not have had any forewarning before coming on to shift, that the Coach Booking Office was closing early because of a lack of afternoon shift staff. Therefore, it was argued that Mr Nason could not have had the forethought to prepare and attach a typed note aimed at embarrassing management, before the shift or during the shift.70

Respondent

[48] V/Line submitted that the Applicant placed a V/Line sign outside the Booking Office in view of the public and other staff that said that the Coach Booking Office was “Closed DUE TO BUDGET CUTS”. It was stated that Mr Nason did so despite being advised that there were no budget cuts. The Respondent contended that this conduct was contrary to Clauses 3.2 and 4.6.2 of V/Line’s Code of Conduct. 71

[49] It was accepted by V/Line that its case in relation to this allegation was circumstantial. However, it was contended that, on the balance of probability, Mr Nason had placed an inappropriate sign on the A-Frame. The Respondent argued that the Commission could readily infer that this sign must have been placed on the A-Frame on or about 5 February 2018. It was stated that Ms Kaur and Mr Nason were the only 2 booking clerks working in the Coach Booking Office on that day. 72

[50] Ms Kaur was said to have not recalled any security officers or Station Masters coming in or out of the Coach Booking Office during her shift with Mr Nason and that no one else came into the Coach Booking Office while she was there with Mr Nason. Further, it was stated that Ms Kaur denied putting the sign on the A-Frame or having any contact with the A-Frame that day. 73

[51] The Respondent argued that that left Mr Nason who, by that stage, had raised perceived issues regarding staff shortages and cost-cutting and had tried to get fellow employees to stop taking overtime shifts to cost V/Line money. In addition, it was stated that Mr Nason was not happy with his line managers nor with Mr McKeown. 74

[52] It was said to have been Mr Nason’s evidence that he had contact with the A-Frame on 5 February 2018 and that he acknowledged that he was the one who had placed the A-Frame on the concourse. The Respondent contended that it appeared that, based on the stills from the CCTV, Mr Nason placed the sign on the A-Frame sometime when he walked back past the A-Frame after leaving the Coach Booking Office. 75

Considerations and conclusions

[53] It was not disputed by Mr Nason that he was the person who placed the A-Frame outside the Coach Booking Office. V/Line acknowledged in its Closing Submissions that its case in relation to this allegation was circumstantial. Respectfully, I agree.

[54] The only evidence before the Commission is that of the Applicant. Mr Nason has denied attaching the sign saying “Closed DUE TO BUDGET CUTS” to the A-Frame. It would appear from the evidence that Mr Nason had the opportunity to place the sign on the A-Frame. However, I am not satisfied, on the basis of the evidence before me, that Mr Nason attached the “Closed DUE TO BUDGET CUTS” sign to the A-Frame. Therefore, the Commission finds that that ground for dismissal is not substantiated.

Allegation E

[55] It was alleged that Mr Nason had closed the Coach Booking Office prior to its ordinary scheduled closing time and prior to the end of Mr Nason’s rostered shift.

[56] It was common ground between the parties that Mr Nason had closed the Coach Booking Office early. What was in contention was the reason for Mr Nason to close it early.

Evidence

Mr Nason

[57] It was Mr Nason’s evidence that:

•  He knew that the Booking Office was going to be closed due to staff shortages on 5 February 2018. 76

•  He thought he found out about it during the shift but was unsure of the time. 77

•  He was rostered on with Ms Kaur that day but was starting later than Ms Kaur (6.45am). 78

•  He was not scheduled to close the Booking Office window until 2:15pm. 79 Mr Nason agreed that Booking Clerks don’t have authority to close the Coach Booking office without the Services Manager’s permission (Ms Pertzel on 5 February 2018).80

•  Ms Pertzel did not tell him directly to close the Booking Office early, Ms Pertzel told Ms Kaur who told him. 81

•  The Station Master or a Services Manager is responsible for putting out the A-Frame which says that the Booking Office is closed. 82

•  He denied having made the decision to close the Booking Office early at about 1.50pm. 83

•  He did not receive the IOC email 84 on that day.85

Ms Kaur

[58] It was Ms Kaur’s evidence that:

•  On 5 February 2018, she worked from 6.15am until 2.15pm. Ms Kaur closed her window at 1.45pm which gave her half an hour to reconcile the till. 86

•  She was the first one (of she and Mr Nason), to close the window. 87

•  She did not know if she and Mr Nason were counting the money at the same time. 88

•  She didn’t know on that day until maybe she was closing down that the afternoon shift was not going to run. 89

•  She could not remember how she knew that. 90

•  Normally, the cashier or one of the supervisors tells them that there is no afternoon shift. 91

Ms Pertzel

[59] It was Ms Pertzel’s evidence that:

•  On 5 February 2018, the Coach Booking Office was due to close at 2.15pm. She was not notified by anyone that the Coach Booking Office would be closing early. The only reason the Coach Booking Office would have been closed earlier than 2.15pm was for herself or another Services Manager to have asked a staff member who was rostered to work in the Coach Booking Office, to cover a shift in the Main Booking Office. 92

•  As Services Manager, it would usually be her decision to close the Coach Booking Office early. 93

•  Booking Office clerks do not have the authority to do this without the permission of a Services Manager. 94

•  She did not give Mr Nason or anyone else a direction to close the Coach Booking Office early. 95 If she had given that direction, it would have been included in the Shift Report from 5 February 2018, which it was not.96

Mr Tomkins

[60] Mr Tomkins gave evidence that:

•  Due to staff shortages, staff were aware that the Coach Booking Office was to close early on 5 February 2018. 97 He believed a staff clerk or a Station Master contacted the Cashier.98

•  He said the normal process was for a Services Manager or Staff Clerk to contact the Cashier to say that the Booking Office was to close early but he was not sure who it was exactly who told a Cashier to tell the Booking Clerk on 5 February 2018. 99

•  It was his expectation that the Coach Booking Office would stay open until 2.00pm/2.15pm and that it would definitely not be closed before 2.00pm. 100

•  To his knowledge, no one gave Mr Nason permission to close the Coach Booking Office early. 101

•  He did not give Mr Nason nor Ms Kaur permission to close the Coach Booking Office at 1.51pm and was not aware of anyone else who did. 102

•  In relation to the IOC email, 103 it was accepted that the email had been sent saying that the office was to close at 1.00pm.104 Mr Tomkins expressed the view that the IOC may have sent a slightly inaccurate email.105

Submissions

Applicant

[61] The Applicant submitted that he did not leave at any time before the end of his shift and that if he had done so in error, it did not warrant dismissal. 106 It was argued that this allegation would seem to be comprehensively contradicted by the email from IOC stating that the Coach Booking Office would be closing at 1.00pm on that day (5 February 2018).107

Respondent

[62] The Applicant’s closure of the Booking Office prior to closing time and prior to the conclusion of his shift was said to be conduct that was contrary to Clause 3.2 of the Respondent’s Code of Conduct. 108

[63] With respect to Mr Nason’s contention that he was directed to do so, it was stated that Mr Nason would only have done that if he had received a direction from a Services Manager. The Respondent recalled that Mr Nason’s evidence was that he was instructed to do so by Ms Kaur via Ms Pertzel. It was said that, unfortunately, neither Ms Kaur nor Ms Pertzel corroborated Mr Nason’s version of events. The Commission was urged to find that Mr Nason lied in his evidence in relation to this allegation. 109

Considerations and conclusions

[64] It was not disputed by Mr Nason that he had closed the Coach Booking Office at 13.51pm on 5 February 2018. The Applicant contended that he had been directed to close the booking office early on the basis of a message from Ms Pertzel which had been passed onto him by Ms Kaur to that effect.

[65] It was Ms Pertzel’s evidence that she did not speak to Ms Kaur and did not direct Ms Kaur or Mr Nason to close the Coach Booking Office early. Ms Kaur did not remember how she knew that the afternoon shift was not going to run.

[66] I have not been persuaded that Mr Nason was directed to close the Coach Booking Office early on that day by Ms Pertzel via Ms Kaur or by anyone else including Mr Tomkins. It was common ground that the authority to close the Coach Booking Office early, on that day, lay with Ms Pertzel. The evidence of Ms Pertzel and Ms Kaur do not corroborate Mr Nason’s contention that he was told to close early by Ms Kaur at the direction of Ms Pertzel.

[67] With respect to the IOC email which stated that the Coach Booking Office would be closing at 1.00pm, it was Mr Nason’s evidence that he did not receive the email on that day. In considering this email, greater weight is to be accorded to the evidence of Ms Pertzel and Mr Tomkins, given that there is no clarity about the provenance of the IOC email.

[68] Therefore, I find that Mr Nason was not directed by Ms Pertzel, via Ms Kaur, to shut the Coach Booking Office early on 5 February 2018, and that Mr Nason closed the Coach Booking Office early without authorisation to do so.

Was there a valid reason for the dismissal?

[69] Bringing all of the above findings of fact together, it has been found that:

•  In his response to Mr Kibbis’ email, on 2 November 2017, Mr Nason suggested that Mr Kibbis and two colleagues work against V/Line’s management and interests.

•  Mr Nason spoke in a discourteous and disrespectful manner to Mr McKeown, on 22 January 2018, by raising his voice and behaving in an intimidating manner.

•  Mr Nason closed the Coach Booking Office early on 5 February 2018 without authorisation to do so.

[70] Taking all of the findings into account and having weighed up all of the evidence, I find, on fine balance, that there was a valid reason for Mr Nason’s dismissal. Mr Nason’s decision, without authorisation, to close the Coach Booking Office early is clearly misconduct as there was no evidence before the Commission that Mr Nason was given the authority to close the Coach Booking Office at 1.51pm. Mr Nason was aware of the line of authority in relation to such a decision. Further, Mr Nason’s conduct during his telephone call with Mr McKeown was seriously inappropriate as was the content and tone of his email response to Mr Kibbis’ email. Therefore, I find, on fine balance, that there was a valid reason for Mr Nason’s dismissal.

Section 387(b) - notified of the reason

[71] On 8 February 2018, Mr Nason was sent a letter setting out five allegations regarding his inappropriate and unprofessional workplace behaviour. Mr Nason was advised, on 11 April 2018, that four of the five allegations were substantiated. On 19 April 2018, Mr Nason provided a written response to the findings. On 9 May 2018, Mr Nason was provided with a letter of termination which set out the findings and Mr Nason’s responses.

Section 387(c) - opportunity to respond

[72] It was submitted by the Applicant that Mr Nason was not given a fair opportunity to respond. This was on the basis that no proper investigation was carried out which had resulted in leaps of logic such as Mr McKeown’s file note of misleading claims of him being intimidated by the phone call with Mr Nason. 110 Reference was made to the decision in BlueScope Steel Limited v Sirijovski111 in regard to the requirements of a proper investigation.112

[73] Further, it was stated that no one from management bothered to speak to Ms Kaur about the events on 5 February 2018, prior to Mr Nason’s dismissal and whether or not there had been a written direction or advice that the Coach Booking Office was required to close early. 113

[74] For the Respondent’s part, the Respondent submitted that Mr Nason was provided with the opportunity to respond to the allegations and was given additional information, as and when it came into V/Line’s possession. It was stated that Mr Nason was then given a further opportunity to respond to any additional information provided and Mr Nason also provided written responses to the Show Cause letter. 114

[75] On the basis of the material before me, I find that Mr Nason was provided with an opportunity to respond to the reasons for his dismissal.

Section 387(d) - opportunity to have a support person

[76] There was no refusal to allow Mr Nason to have a support person.

Section 387(e) - unsatisfactory performance?

[77] This subsection is not relevant in this matter because Mr Nason’s dismissal did not relate to unsatisfactory performance.

Sections 387(f) and (g) - size of undertaking and absence of dedicated human resources

[78] V/Line is a large employer with dedicated human resources who were involved in the dismissal process. The Applicant contended that the manner in which the dismissal was effected was harsh and that Mr Nason was denied a fair go, notwithstanding the size of the employer and the involvement of specialist human resources.

Section 387(h) - any other matters considered relevant

[79] It was submitted by the Applicant that he was treated in a dismissive and disrespectful manner without any regard for his interests and was not given a fair go. The Applicant also argued that the dismissal was a disproportionate response to the issues related to Mr Nason’s conduct and a lesser disciplinary outcome would have been the appropriate response in the circumstances. Accordingly, it was submitted that the termination was disproportionate. 115

[80] In addition, it was contended that Mr Nason’s length of service (over nine years) and commitment should have been taken into account. 116

[81] On the other hand, the Respondent argued that the submissions by the Applicant do not militate against the seriousness of the misconduct. It was stated that the misconduct was deliberate and part of a pattern of behaviour and plainly directed at undermining V/Line’s management in retribution for the reduction in Mr Nason’s overtime hours. 117

[82] The pattern of behaviour was stated to include a Final Written Warning dated 17 February 2017 in relation to inappropriate references to Ms Edsall’s appearance. In addition, reference was made to a number of complaints that were made in November 2017 about a number of employees in the Booking Office including Mr Nason. This resulted in an external investigation by Mr King. 118

[83] Further, the Respondent argued that there was no evidence of any personal or economic circumstances that would otherwise make the dismissal unduly harsh. 119

[84] Having considered the parties’ submissions, Mr Nason’s final written warning of 17 February 2017 will be taken into account.

Was the dismissal harsh, unjust or unreasonable?

[85] In all of the circumstances of this matter and, having taken account of, and balanced, the matters set out in s.387 of the Act, I determine, on balance, that Mr Nason’s dismissal was not harsh, unjust or unreasonable. In making this determination, I therefore have found that the dismissal was not disproportionate.

[86] There was, on fine balance, a valid reason for Mr Nason’s dismissal relating to his conduct in closing the Coach Booking Office at 1.51pm (early) without authorisation and his conduct in the telephone call with Mr McKeown and the content of the email to Mr Kibbis. The dismissal process was procedurally fair.

[87] I have also considered the final written warning which was issued in regard to Mr Nason’s conduct towards a Station Manager (Ms Edsall). These incidents indicate a pattern of behaviour that is negative, unconstructive, anti V/Line management and disrespectful towards the positions of management employees and the authority which comes with those positions. It is difficult to describe such behaviour as a positive, constructive and respectful way in which issues in the workplace are resolved. Such behaviour contravened V/Line’s Code of Conduct. Therefore, I find, on balance that Mr Nason’s dismissal was not harsh, unjust or unreasonable.

[88] Accordingly, Mr Nason’s application is dismissed. An order 120 to this effect will be issued separately.

Appearances:

G Dircks of Just Relations - Consultants for the Applicant

M Minucci of Counsel for the Respondent

Hearing details:

2018.

Melbourne:

August 29, 31.

Final written submissions:

Applicant, 4 October 2018

Respondent, 25 October 2018

Applicant, 1 November 2018

Printed by authority of the Commonwealth Government Printer

<PR703710>

 1   PR620366

 2   Exhibit A2 at Attachment WN2

 3   Ibid

 4   Ibid

 5   Exhibit A1 at paragraphs 6 – 11 and Applicant’s Response to Respondent’s Closing Submissions, dated 1 November 2018, at paragraphs 1 and 66 – 70

 6   Exhibit A1 at paragraphs 12 – 27, Applicant’s Closing Submissions, dated 4 October 2018, at paragraphs 25 – 35 and 41 – 42 and Applicant’s Response to Respondent’s Closing Submissions, dated 1 November 2018, at paragraphs 68 – 70

 7   Applicant’s Closing Submissions, dated 4 October 2018, at paragraphs 26 – 40

 8   Applicant’s Response to Respondent’s Closing Submissions, dated 1 November 2018, at paragraphs 71 – 73

 9   Exhibit R3 at paragraphs 19 – 20 and Outline of Closing Submissions of the Respondent, dated 25 October 2018, at paragraphs 20 – 21

 10   Outline of Closing Submissions of the Respondent, dated 25 October 2018, at paragraphs 21 – 23

 11   Ibid at paragraphs 24 – 28

 12   Transcript PN 579 – 580

 13   Ibid PN 575

 14   Ibid PN 577 – 578

 15   Ibid PN 581 – 585

 16   Ibid PN 586

 17   Ibid PN 601 – 604

 18   Ibid PN 605

 19   Ibid PN 606 and Exhibit A2 at paragraph 12

 20   Transcript PN 608

 21   Ibid PN 609 – 611

 22   Ibid PN 612 – 619

 23   Ibid PN 618 and 620

 24   Ibid PN 1347 and Exhibit R7 at JM18

 25   Exhibit R7 at Attachment JM18

 26   Exhibit R7 at paragraph 34 and Attachment JM18

 27   Ibid at paragraph 35 and Attachment JM18 and Transcript PN 1348

 28   Ibid at paragraph 35 and Attachment JM18

 29   Ibid at paragraph 36 and Attachment JM18

 30   Ibid at paragraphs 36 – 37 and Transcript PN 1345

 31   Ibid at paragraph 37 and Attachment JM18

 32   Ibid at paragraph 37 and Attachment JM18

 33   Ibid at paragraph 38 and Attachment JM18 and Transcript PN 1346

 34   Ibid at Attachment JM18

 35   Ibid and Transcript PN 1346

 36   Transcript PN 1349

 37   Ibid PN 1344 and 1358 and Exhibit R7 at paragraph 39 and Attachment JM18

 38   Ibid PN 1350 – 1352 and 1354 – 1356

 39   Ibid PN 1359

 40   Ibid PN 1363

 41   Ibid PN 1364

 42   Ibid PN 1372

 43   Ibid PN 1351, 1353 and 1357 and Exhibit R7 at paragraph 40 and Attachment JM19

 44   Exhibit A1 at paragraphs 35 – 37

 45   Ibid

 46   Applicant’s Closing Submissions, dated 4 October 2018, at paragraphs 51 – 86 and Applicant’s Response to Respondent’s Closing Submissions, dated 1 November 2018, at paragraphs 83 – 90

 47   Exhibit R3 at paragraphs 21 – 22

 48   Outline of Closing Submissions of the Respondent, dated 25 October 2018, at paragraphs 32 – 45

 49   Exhibit A2 at paragraph 52 and Transcript PN 646 – 648

 50   Ibid at paragraph 49 and ibid PN 649 and 653

 51   Ibid at paragraphs 49 and 51 and Transcript PN 651 and 670

 52   Ibid at paragraph 64

 53   Ibid at paragraph 71 and Transcript PN 672

 54   Transcript PN 681 – 682

 55   Ibid PN 689

 56   Ibid PN 1076 and 1104

 57   Ibid PN 1080 – 1082

 58   Ibid PN 1105 – 1106

 59   Ibid PN 1115 – 1119 and 1144

 60   Ibid PN 1145

 61   Ibid PN 1120

 62   Ibid PN 1146 – 1147

 63   Ibid PN 1148

 64   MFI 1 at paragraph 9

 65   Ibid at paragraph 11

 66   Exhibit A1 at paragraphs 38 – 39

 67   Ibid at paragraph 45

 68   Applicant’s Closing Submissions, dated 4 October 2018, at paragraphs 87 – 94

 69   Ibid at paragraph 95 – 106

 70   Ibid at paragraphs 112 – 115

 71   Exhibit R3 at paragraphs 23 – 24

 72   Outline of Closing Submissions of the Respondent, dated 25 October 2018, at paragraphs 46 – 49

 73   Ibid at paragraphs 49 – 50

 74   Ibid at paragraph 50

 75   Ibid at paragraphs 52 – 54 and Attachment A

 76   Transcript PN 628 – 630

 77   Ibid PN 631

 78   Ibid PN 632 – 640

 79   Ibid PN 641

 80   Ibid PN 642

 81   Ibid PN 644 – 645 and 653 – 656

 82   Ibid PN 646 – 648

 83   Ibid PN 652

 84   Exhibit A4

 85   Transcript PN 240

 86   Ibid PN 1056 – 1058 and 1067 – 1070 and 1073 and Exhibit R4 at paragraph 7

 87   Ibid PN 1071 – 1072

 88   Ibid PN 1074 – 1075

 89   Ibid PN 1061

 90   Ibid PN 1062 – 1064

 91   Ibid PN 1065

 92   MFI 1 at paragraph 12

 93   Ibid at paragraph 13

 94   Ibid

 95   Ibid at paragraph 14

 96   Ibid at paragraph 15 and Attachment TP1

 97   Exhibit R8 at paragraph 27

 98   Transcript PN 1453

 99   Ibid PN 1455 and Exhibit R8 at paragraphs 27 – 28

 100   Ibid PN 1457 – 1459 and ibid at paragraph 27

 101   Exhibit R8 paragraph 27

 102   Ibid at paragraphs 27 – 28

 103   Exhibit A4

 104   Transcript PN 1471

 105   Transcript PN 1472 – 1473

 106   Exhibit A1 at paragraph 29

 107   Applicant’s Closing Submissions, dated 4 October 2018, at paragraphs 129 – 135

 108   Exhibit R3 at paragraphs 23 – 24

 109   Outline of Closing Submissions of the Respondent, dated 25 October 2018, at paragraphs 59 – 64

 110   Exhibit A1 at paragraphs 62 – 64

 111   [2014] FWCFB 2593

 112   Exhibit A1 at paragraph 63 and Applicant’s Closing Submissions, dated 4 October 2018, at paragraph 138

 113   Applicant’s Closing Submissions, dated 4 October 2018, at paragraphs 137 – 143

 114   Exhibit R3 at paragraphs 58 – 59 and Outline of Closing Submissions of the Respondent, dated 25 October 2018, at paragraphs 67 – 69

 115   Exhibit A1 at paragraphs 68 – 75 and Applicant’s Closing Submissions, dated 4 October 2018, at paragraphs 153 – 154

 116   Exhibit A1 at paragraphs 77 – 80

 117   Exhibit R3 at paragraph 62

 118   Ibid at paragraphs 6 – 12

 119   Ibid at paragraphs 61 – 63 and Outline of Closing Submissions of the Respondent, dated 25 October 2018, at paragraph 85

 120   PR703711