DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Nicholas Ward
v
Great Southern Rail Pty Ltd T/A Great Southern Rail
(U2019/2596)

Application for an unfair dismissal remedy – hospitality attendant – failure to re-board the Ghan mid journey – alleged breaches of duty – serious and wilful misconduct – whether personal factors mitigated breaches – dismissal not harsh, unjust or unreasonable - application dismissed

[1] On 8 March 2019 Mr Nicholas Ward (Mr Ward or the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Great Southern Rail Pty Ltd (Great Southern Rail, the Respondent or the employer). He claims to have been unfairly dismissed on 15 February 2019.

[2] At the date of dismissal Mr Ward was employed by Great Southern Rail as a Hospitality Attendant under the Great Southern Rail Enterprise Agreement 2016.

[3] Mr Ward claims that his dismissal was harsh, unjust or unreasonable. His application seeks an order for compensation. He does not seek an order for reinstatement.

[4] Great Southern Rail oppose the application. It says that it summarily terminated Mr Ward’s employment on the ground of serious misconduct. There is a dispute over the dismissal date. Great Southern Rail deny that it terminated Mr Ward’s employment on 15 February. It says that the summary dismissal occurred on 25 February 2019 after Mr Ward failed to attend a scheduled meeting to discuss the allegations. Great Southern Rail contend that the dismissal was not harsh, unjust or unreasonable, and that no issue of remedy arises.

[5] No jurisdictional issues arise in determining this matter. Mr Ward was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the statutorily required minimum employment period (section 382(2)(a)). Though he was a casual employee, the employer agreed at the hearing that his service was on a “regular and systematic” basis within the meaning of section 384(2)(a) of the FW Act. His annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act. His application was filed within the statutorily required 21 days after dismissal took effect.

[6] On 6 May 2019 conciliation of the application was conducted by a Commission-appointed conciliator. It did not settle. It was referred to me for hearing and determination.

[7] I conducted directions hearings (by telephone) on 21 and 22 May 2019 1 and a hearing on the merits (and remedy) in Adelaide on 10 and 11 July 2019.

[8] Both parties were self-represented at the hearing of the matter and neither sought external representation during the life of the matter. Mr Ward presented his case in his own right. The Chief People Officer of the Journey Beyond Group (the parent company of Great Southern Rail) Ms Marie Brokenshire represented the employer.

[9] At the hearing I took into account that the parties were self-represented and provided a measure of guidance and assistance, particularly to Mr Ward with respect to obtaining his evidence in chief and with respect to the examination of employer witnesses. I did so consistent with my responsibilities as an independent and impartial officer of the Commission.

The Evidence

[10] Although Mr Ward’s witness statements as filed were brief 2 (and needed to be expanded upon via oral evidence) I ultimately received oral evidence, written statements, documents (including those produced in consequence of directions) and outlines of submissions from both Mr Ward and Great Southern Rail.

[11] I heard evidence from four persons:

•  Nicholas Ward (Applicant);

•  Alicia Iannuzzi (Mr Ward’s partner);

•  Nicole Mathers (Human Resource Manager, Great Southern Rail); and

•  Marie Fantis (General Manager Guest Experience, Great Southern Rail).

[12] I received into evidence 3 written statements that were made to the employer in the course of the employer’s investigation of the matter (and prior to its purported dismissal). The statements were from five employees: Laura St Claire (Restaurant Manager), Sonya Lemondine (Restaurant Manager), Brenton McMahon (Hospitality Attendant), Kimberley Irvine (Hospitality Attendant) and Bruce Smith (Train Manager). The employer did not call these persons to give evidence. I admitted the statements into evidence as relevant to the investigation conducted by the employer. However, in the absence of those persons giving evidence, I do not give weight to the content of those statements, except where they concern non-disputed facts or provide non-disputed background or contextual information.

[13] The facts leading to dismissal (whether dismissal on 15 or 25 February) and particularly the events of 14 February in Alice Springs and the events of 15 February in Adelaide are central to my determination of this matter. Issues of credit are relevant. However, ultimately and with some exceptions, most of the facts are not in serious dispute. In particular dispute though is the conversation between Mr Ward and Ms Mathers on the railway platform at Keswick, Adelaide on the afternoon of 15 February, and whether during that conversation Mr Ward’s employment was terminated. I make specific findings on that question in this decision.

[14] Mr Ward gave his evidence in a polite but intense manner. Whilst generally reliable, some degree of caution is required. He exhibited, some four months after dismissal, a continuing (and in some respects, understandable) anger and frustration at the employer. He was keen to direct his evidence (and submissions) at officers of the employer present in the hearing room, in almost a lecturing manner. On a number of occasions I needed to request Mr Ward to address the Commission, not those in court. In his evidence he was keen to highlight (and express opinions upon) the conduct and motives of managers. He placed some gloss on his own conduct though he did concede certain indiscretions under questioning and was generally not evasive.

[15] Ms Iannuzzi’s evidence, albeit brief, was reliable and to the point.

[16] Ms Mathers, who liaised extensively with Mr Ward on relevant days and recommended dismissal, gave evidence in a measured and considered manner. She was not overly defensive in answer to lengthy questioning from myself, and demonstrated good recall of critical events. I consider her evidence plausible and generally reliable especially where corroborated by the documentary record.

[17] Ms Fantis, who also recommended dismissal and had interaction with Mr Ward at relevant times, gave evidence in a confident manner. Her recall was broadly sound, although she did (under questioning) correct her recall on one aspect of the platform conversation with Mr Ward on 15 February. I consider her evidence generally reliable.

[18] Where relevant to my decision, I make findings based on the demeanour of witnesses, the tone and manner of giving evidence, the consistency (or otherwise) between oral evidence and witness statements, the existence (or otherwise) of corroborating documentary evidence (such as text messages exchanged between relevant persons 4) and the inherent plausibility of versions of events.

[19] Some of the evidence before me strayed from factual matters into hearsay, opinion, assumption and commentary. I place reduced levels of weight on such evidence except where corroborated by direct evidence, is uncontested or inherently believable. I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of a Full Bench of this Commission which has said:

“The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.” 5

The Facts

[20] I make the following findings.

Background

[21] Great Southern Rail, owned by the Journey Beyond Group, is a rail and tourism operator providing passenger rail services between Australian capital cities including the Indian Pacific (Perth and Sydney), the Ghan (Adelaide and Darwin) and the Overland (Adelaide and Melbourne).

[22] Mr Ward is a middle aged man who commenced work with Great Southern Rail on 27 November 2017 as a casual Hospitality Attendant working these rail journeys.

[23] He was, at relevant times, based in Adelaide.

[24] Mr Ward came to work for Great Southern Rail after more than twenty five years of experience working in both photography and in hospitality in England. He had experience managing major hospitality venues in London. He considered himself overqualified for the work of a Hospitality Attendant, but nonetheless took the role and enjoyed it. 6

[25] Each of the rail journeys worked by Mr Ward whilst employed by Great Southern Rail required lengthy interstate travel across Australian jurisdictions. In the case of the Ghan, it involved multi-day travel for employees (over six days return) with the train departing Adelaide and stopping en-route at Alice Springs before passengers embarked or disembarked at Darwin. The return trip would also transit at Alice Springs. Stops at Alice Springs would be for about four hours, to enable passengers to disembark and take short tours of the town or nearby countryside.

[26] Mr Ward’s rostered shift on the Ghan in February 2019 was familiar to him. He had worked it many times before. It involved six days of travel (commencing approximately midday Sunday 10 February) with five nights away from home base and returning approximately midday Friday 15 February.

[27] Mr Ward agreed to work this shift but it was not his preference. He and Ms Iannuzzi had a child, a baby daughter, born five weeks earlier in January 2019. After the birth, Mr Ward had requested to be rostered for shorter journeys, such as the Sydney return. Great Southern Rail was not able to accommodate his preference at that time. He was rostered on the Ghan for the 10 to 15 February journey. He accepted that shift in order to not refuse the work and income.

[28] Great Southern Rail set crewing levels in advance for its rail journeys. Approximately fifty employees are rostered to work on the Ghan journey. In setting crewing levels, Great Southern Rail make some (but limited) allowance for the possibility that a crew member may fall ill or need to return to home base at short notice to deal with an emergency. When travelling, Mr Ward (and other hospitality staff) reported to duty managers and restaurant managers on the train. Those managers in turn reported to the train manager.

Events en-route to Alice Springs

[29] Whilst on the trip to Darwin (on Monday 11 February) Mr Ward was told by an elderly passenger that another passenger (who had drunk too much alcohol) had claimed, wrongly, that Mr Ward had made a comment of a sexual nature about that (drunken) passenger’s wife.

[30] This distressed Mr Ward. Mr Ward approached the Train Manager, Mr Smith. He told Mr Smith that he was being wrongly accused by a passenger, and wanted the matter investigated so he could have his name cleared. Mr Smith told Mr Ward that the passenger had been drunk, that the complaint was not credible and that there was no need to investigate or interview passengers as it was not being taken further. He told Mr Ward that he could continue his normal duties and would not need to be moved to any alternate role or carriage given the ‘non-issue’.

[31] For Mr Ward, it was not a non-issue. He could not sleep on the evening of 12 February. The allegation was playing on his mind. He feared other staff would be gossiping about the complaint, affecting his reputation. Upon waking on the morning of Wednesday 13 February he felt unwell. He attributed his unwellness to the unfounded complaint playing on his mind, and humidity in the corridor outside his cabin caused by a damp carpet (which he believed was damp due to a dripping air-conditioning vent).

[32] Mr Ward told his manager that he was unwell. He was given permission to not work the shift on 13 February and allowed to remain in his cabin, where he rested and was provided meals by staff.

[33] The Ghan was due to stop (for four hours) at Alice Springs on the morning of Thursday 14 February. On the late afternoon of 13 February Mr Ward told another employee (Mr McMahon, who conducted tours during the transit stop) that he (Mr Ward) would like to swap work with Mr McMahon that day and take passengers on the four kilometre hike through Simpson’s Gap. Mr Ward said that it would be good to be out in the fresh air. Mr McMahon was open to the idea.

[34] On the early morning of Thursday 14 February (about 7am) Mr Ward told Mr Smith that he would be doing the tour that day, swapping with Mr McMahon. Mr Smith did not demur. However, shortly afterwards Mr Ward’s immediate manager Ms St Claire informed Mr Ward that he would not be permitted to swap shifts with Mr McMahon as he (Mr Ward) wasn’t rostered to do tours that day, and was needed for housekeeping duties. He was told that he could disembark and get fresh air off the train with all housekeeping staff once the housekeeping duties were completed (it would appear that upon hearing that Mr Ward wanted to do the tour, Ms St Claire had spoken to Mr Smith and Mr Smith had then left the decision up to her, effectively reversing his earlier passive consent; this was Mr Ward’s evidence 7).

Events at Alice Springs pre-departure

[35] The Ghan arrived at Alice Springs at about 9.10am on Thursday 14 February. It was due to depart Alice Springs at about 12.45pm.

[36] Mr Ward disembarked the train shortly after arrival. Staff were allowed to do so to get some fresh air but were required to remain in the vicinity of the terminal and required to re-board in advance of passengers returning and the train departing.

[37] The withdrawal of permission to take the tour, coupled with his latent anxiety about the passenger complaint and the damp carpet in the cabin corridor made Mr Ward feel stressed and anxious. Mid-morning, whilst off the train and in the terminal precinct, he advised a rostering coordinator that he felt bullied and harassed and wanted to speak urgently to the human resource department (HR). The message was relayed to Ms Mathers, the Human Resource Manager (based in Adelaide) who immediately called Mr Ward (at 10.51am Adelaide time; 9.51am local time in Alice Springs 8). The call was not answered. She sent a text:

“Hi Nick, I am awaiting your call back. I’m here to talk and keen to understand and work out a way forward regarding the concerns you have raised. If you speak to the union please pass on my details. Kind regards Nicole HR”

[38] Mr Ward phoned back. Mr Ward told Ms Mathers that he had been “bullied and victimised”, that he wished to return home immediately to Adelaide, that he did not intend to re-board the train and that he wanted Great Southern Rail to fly him to Adelaide at the employer’s expense. Mr Ward became agitated as they spoke. Ms Mathers asked Mr Ward for details of the bullying and victimisation he had asserted and asked him why he was upset and agitated and did not wish to re-board the train. Mr Ward considered that he did not need to provide more justification to Ms Mathers as he believed he had told enough managers that morning of his unhappiness and unwellness. He hung up on Ms Mathers when she again pressed him for details.

[39] Mr Ward briefly returned to the train and off-loaded his belongings. Mr Ward also spoke to his partner Ms Iannuzzi by telephone. He told her that he was annoyed that he had not been allowed to take a tour. Ms Iannuzzi, either then or in a subsequent conversation, told Mr Ward that their child was unwell with a chest cough and that she was concerned. This heightened Mr Ward’s anxiety and desire to return home.

[40] Mr Ward then sent three texts to Ms Mathers:

“If you can’t help book a flight for me all duty of care has gone” (9.29am local time)

“I let you know that I’ve been bullied and victimised and all you can do is say that I’m being rude...you’ll go far in GSR [Great Southern Rail]” (10.19am local time)

“I feel that I need to get back to my newborn daughter…are GSR going to help me in this time of need?” (10.26am local time)

[41] Ms Mathers replied by text (at 10.56am local time):

“Hi Nick I can see you are distressed and I am here to help. You also have access to EAP free confidential counselling by calling…”

[42] At the request of Ms Mathers, the train manager Mr Smith approached Mr Ward in the terminal. Mr Ward told Mr Smith that he was feeling harassed and unwell, would not be re-boarding the train and needed to be flown to Adelaide. He asked Mr Smith to speak to HR and secure their permission. Mr Smith was somewhat sympathetic but told Mr Ward that he wanted him to re-board the train. He agreed that Mr Ward did not appear in a state to perform his duties and needed support. He said that Mr Ward would not need to work the rest of the shift but required him to re-board the train where he could remain in his cabin, with the train due to arrive in Adelaide at lunchtime the following day. Mr Ward maintained that he wished to be flown to Adelaide that day. Mr Smith agreed to again speak to HR to find a solution.

[43] Mr Ward sent Ms Mathers another text (at about 11.05am local time), this time with a link to a Virgin airline website and details of a flight departing Alice Springs to Adelaide in approximately one hour’s time. Ms Mathers replied by text (at about 11.13am local time):

“We are not paying for a flight home, as Bruce has explained to you we understand your need to get home and we are hopeful that you will coming back on the train. We will not be covering the cost of your flight if you decide to fly home.”

[44] Mr Ward replied by text (at about 11.18am local time):

“You will be leaving me stranded then, I’m not getting victimised again. I hope you have explained to the managing directors the situation and that I have a newborn baby at home.”

[45] Mr Ward rang Ms Mathers (at around 11.30am local time, 12.30pm in Adelaide). Mr Ward was aggressive and demanding. He told Ms Mathers that the company had an obligation to fly him home at its expense in order to meet its duty of care. He was told by Ms Mathers that he had to re-board the train though she found it difficult to get a word in. He said he would not be re-boarding the train. He was yelling at Ms Mathers and claimed that she was rude. Ms Mathers did not raise her voice but sought to be firm and clear. She repeated that Mr Ward was required to re-board the train, could remain off duties in his cabin if he re-boarded the train, but would not be flown home. Mr Ward then again hung up on Ms Mathers. Ms Mathers was, by this time, frustrated that Mr Ward had not re-boarded as directed but also concerned at Mr Ward’s emotional state and mental well-being.

[46] Ms Mathers started to research bus and flight options to get Mr Ward back to Adelaide if he was to continue to refuse to re-board. She found very limited flight and bus options.

[47] Mr Smith again spoke to Ms Mathers. Ms Mathers’s position was that Mr Ward’s circumstances did not warrant payment of a flight home, that he should be required to re-board, not be left alone in Alice Springs and arrive in Adelaide safely the next day. Mr Smith contacted Mr Ward again (by phone) and told him that he was required to re-board the train and that HR would not fly him home.

[48] The Ghan’s scheduled departure (12.45pm) was approaching. Staff and passengers had re-boarded but Mr Ward, in work uniform, remained in the terminal. At about 12.30pm local time the train manager Mr Smith again phoned Mr Ward telling him to re-board the train and not be left isolated in Alice Springs. Mr Ward again refused.

[49] Mr Smith delayed the departure of the Ghan by about ten minutes, making a final request of Mr Ward to reconsider and board the train. Mr Ward did not do so. The train eventually departed, late by ten minutes. This was not an insignificant delay given that the Ghan shares track with freight trains, and is exposed to potential penalties under its contract for lateness. There is no evidence that such penalties arose and I make no such finding.

[50] Mr Ward twice told Ms Mathers that morning (by text) that he “needed to get back to my newborn daughter/baby” but at no stage prior to the Ghan leaving Alice Springs did Mr Ward inform Ms Mathers (or Ms Fantis) that his child was unwell. Mr Ward considered it an unnecessary intrusion into his personal affairs to inform HR of the circumstances of his child. 9 Mr Ward’s evidence was that he did inform the train manager Mr Smith that his child was unwell (though at that point in time the child was not hospitalised).10 I accept his evidence on this point. It is plausible and not inconsistent with the documentary record. However, there is no evidence before me that Mr Smith told this to Ms Mathers. Based on Ms Mathers’s evidence11 (which I accept) that she did not know that Mr Ward’s baby daughter was unwell until late that afternoon, it is a reasonable inference that Mr Smith did not communicate that fact or that level of detail to Ms Mathers that morning.

[51] There is disputed evidence over whether, prior to the departure of the Ghan, Mr Ward offered to pay for the flight home from his own funds. Though he claimed in evidence that he had said so, at least to Mr Smith, his evidence was imprecise as to who he spoke to and when. 12 It varied between who he told (Mr Smith or Ms Fantis or both) and whether he offered to pay from his funds or offered to have wages deducted and whether this occurred before or after the 14 February flights had departed. He accepted that he never told Ms Mathers.13 Ms Mathers was unambiguous in her evidence that he had not done so.14 Even if Mr Ward had said this to Mr Smith (or later in the day to Ms Fantis), it was principally with Ms Mathers that Mr Ward was negotiating whether the employer would pay an airfare home. Had Mr Ward made that offer it is more likely than not that he would have said or repeated this in a text to Ms Mathers (or Ms Fantis) that morning, given the plethora of text messages exchanged. There is no such text. The only texts that exist indicate that Mr Ward was requiring the employer to fund the flight.

[52] During the course of the morning, Ms Mathers informed another Adelaide-based manager (Ms Fantis, General Manager Guest Experience) of the unfolding events. As the departure time for the Ghan approached, Ms Fantis telephoned Mr Ward (12 noon local time in Alice Springs). He did not answer the call. Ms Fantis decided to send a text. Text communication between the two then occurred over the next hour:

Ms Fantis (12.02pm local time): “Hi Nick, Nicole has informed me of what is going on. I want to make sure that you are ok. Give me a call when you have a moment. Thanks, Marie Fantis

Mr Ward: No I’m not but thanks for asking. Kind Regards Nicholas.

Ms Fantis: Do you want to talk or text? All I want for you Nick is for you to get home safe. I have heard that you don’t want to get back on the train. I just want to understand that. Can you please let me know the reason why? We can create a safe and protective environment for you if that makes you feel better about being on here.

Mr Ward: Then you can book me a flight for the morning if GSR cares that much about their staff.

Ms Fantis: Nick, we can’t just book flights like that. We need to understand the reasons why? I need you to tell me why.

Mr Ward: Ive informed the train manager, I wont be victimized anymore! If thats company policy on bullying then so be it…I’d rather be stranded.

Ms Fantis: I’m sorry you feel this way. That is definitely not the intention of the anybody here. A number of people have reached out to you and you still haven’t given us any information.

Mr Ward: I’ve informed my manager about everything and found Nicole to be quite rude. You know there is a problem with bullying and yet the company still is thinking about covering its own back. I’d like Steve to be informed of the situation I’m in, I am stranded in Alice Springs because I didn’t want to be in a bad position again, this is on you now. Kind Regards Nicholas

Mr Ward: I just want to get back to my newborn daughter asap, if GSR won’t help me then so be it. ???

Ms Fantis: Apologies Nick, the IP [Indian Pacific] has arrived. I don’t think we are getting anywhere via text. Can you please call me when you are in a private place and in by yourself so we can talk.”

Events at Alice Springs post-departure

[53] Mr Ward telephoned Ms Fantis (at 2.29pm local time). Mr Ward said that he had been bullied and harassed. He was speaking rapidly. Ms Fantis asked Mr Ward to stay calm and explain what had happened. Mr Ward became agitated. He said that he wanted to know why the company had refused to fly him home. Ms Fantis said that the company did fly staff home but only where there was an immediate family emergency. She said that Mr Ward had been required to board the train home, was not required to work, would have been provided meals and rest and would have been safely home the following day. The call ended.

[54] Ms Fantis then sent Mr Ward a text (at 3.13pm local time) as follows:

“Hi Nick, I have had to run off and go to the IP. Nicole is going to give you a call and give you some information. She is looking for accommodation for you, to see what is available.

[55] Mr Ward immediately phoned Ms Mathers (at 3.24pm local time). Mr Ward was agitated and yelling, saying that he had been left stranded, the train had departed, he had no accommodation and no money. He was reminded by Ms Mathers that it was he who refused to re-board the train, leaving him stranded. He told Ms Mathers that he had himself booked a flight for the following day (Friday) and had no money left. He said “the least you can do is book me accommodation”. Ms Mathers agreed to do so, saying “I will book you one night’s accommodation in the closest hotel to your location I can find”. Upon hearing this, Mr Ward’s demeanour changed. He became calm. He thanked Ms Mathers for her understanding, saying words to the effect “I hope we can resolve this, this is a good act, I appreciate this.”

[56] Ms Mathers was unfamiliar with Alice Springs. She had been informed by Mr Ward of his location. She searched booking.com for a nearby hotel. She located the Todd Tavern. She booked one night for Mr Ward at the company expense. She then relayed this information to Mr Ward.

[57] Mr Ward went to the hotel. He considered it unsuitable. He sent Ms Mathers a text (at 4.02pm local time):

“200 aboriginals fighting downstairs with three doorman on at all times (reception couldn’t understand why I was sent here) not complaining as it’s Alice Springs but for future reference please don’t send any staff here that you actually like. Thank you for looking after me. Kind Regards Nicholas.”

[58] Mr Ward phoned Ms Fantis (at about 4.12pm local time) and told her the accommodation was unsatisfactory.

[59] Mr Ward then phoned Ms Mathers (at 4.19pm local time). He was angry and yelling. He said the accommodation was unsatisfactory. He went on to shout down the phone line:

“you will pay for what you have done, you better sleep with one eye open, you are terrible at your job. This is the end to you and the company, everyone at the cocaine tower will come down when they find out what has happened”

[60] Ms Mathers was shaken by the phone call. She was concerned at Mr Ward’s mental state and also shaken by the tone and threats. She decided that someone local needed to contact Mr Ward. She asked two staff members who were in Alice Springs to contact Mr Ward. They did so by text. She also checked Mr Ward’s personnel file and found details of his emergency (next of kin) contact. It was his brother. She contacted his brother, briefly indicated what had occurred and asked his brother to make contact with Mr Ward and check on him. Mr Ward’s brother did so.

[61] Mr Ward took exception to the fact that the employer had arranged for other persons including his brother to check on him.

[62] Mr Ward checked himself out of the Todd Tavern and booked himself into an alternate hotel, using his own funds.

[63] Mr Ward decided to again ring Ms Fantis (at 5.46pm local time). Mr Ward commenced the call calmly but came across to Ms Fantis as “cold” 15. He said that he was very disappointed that the company could “do this to him” when he had “a newborn daughter in hospital”. He then became angry and aggressive. He yelled at Ms Fantis that she “was a fucking shit manager”, “I’m going to take you down”, “I know what you did”, “you need to sleep with one eye open”, “everyone at the cocaine tower will come down when they find out what has happened”.16

[64] Mr Ward then sent Ms Fantis a further text message (at 6.13pm local time) as follows:

“You worry about the guests giving you a bad name, what happens when a staff member knows all? I’m so disgusted in the company’s actions…this is for all in head office…I worked for the London Press for 10 years and I’m coming clean on the disgrace you have put the staff through! How about a slow media on your ways…What you have done!! I will only speak to Steve as anyone else I now don’t trust!”

[65] The call to Ms Fantis, at 5.46pm on 14 February, was the first Ms Fantis or any company officer knew that Mr Ward’s child had been taken to hospital that day. During the course of the afternoon Ms Iannuzzi had become sufficiently concerned at her daughter’s breathing and coughing that she had taken the baby to the Women’s and Children’s Hospital in Adelaide (at 3.29pm). Ms Iannuzzi had relayed this information to Mr Ward. As events transpired, Ms Iannuzzi and the baby were sent home (at 4.44pm) with some advice from hospital staff. During the evening Ms Iannuzzi again became concerned with the baby, and returned to the hospital. She was admitted with the baby overnight for observation, and discharged the following morning. 17

[66] Learning that his partner and baby were in hospital that evening, Mr Ward became increasingly distressed. During the very early hours of the morning he sent three further text messages to Ms Fantis (with photos he had received from Ms Iannuzzi at the hospital):

“My daughter is in the women and childrens and has been kept overnight…I’m holding you both responsible for me not being there!”

“This is Skylar. She spent the night in hospital last night with complications…without her father by her side. I told you I was trying to get back to my newborn daughter but did you give a fuck…you dont deserve the position you are in… Standby!”

“This is Skylars mother. She just spent the night beside her baby in the Adelaide Women and Childrens Hospital! Be a media nightmare if this went viral. I know what you did Marie! Will be waiting for a phonecall from Steve.”

[67] On 15 February Mr Ward boarded a lunchtime flight from Alice Springs to Adelaide.

Events at Adelaide terminal

[68] Upon arrival at Adelaide airport on 15 February Mr Ward was picked up by his partner. He noticed a text message from Ms Mathers (that had been sent at 3.16pm, mid-flight). It read:

“Hi Nick. Please call me when you land in Adelaide. Thanks Nicole.”

[69] Ms Mathers had left the message hoping to set up a time for Mr Ward to attend a formal meeting the following week (in person) to discuss the events, hear his version and express the concerns the employer had with his conduct. Ms Mathers and Ms Fantis had, that afternoon (after the train arrived) commenced an investigation and had already obtained statements from relevant staff. 18

[70] On disembarking the flight Mr Ward was angry with the treatment he had received from Great Southern Rail. On seeing the text he fired back a responding text (at 3.18pm):

“My daughter will be the first priority. Kind regards Nicholas”

[71] He then drove to the Keswick terminal in Adelaide to return his train keys (keys are required to be returned at the end of each trip).

[72] Mr Ward arrived at about 4.30pm, unannounced. He spoke briefly to Ms Mathers by phone and told her that he was at the terminal to return his train keys. Ms Mathers and Ms Fantis came down to the platform to meet him. Mr Ward was walking towards them in a defiant manner. When he reached them a conversation occurred between Mr Ward and Ms Mathers, witnessed by Ms Fantis (the platform conversation). There is a factual dispute about that conversation. I make findings on that factual dispute in considering whether Mr Ward was dismissed at that time, as he alleges. I find that he was not so dismissed at that time.

[73] Mr Ward returned to the car and told Ms Iannuzzi that he had been terminated by the Human Resources Manager and that the managers had tried to have a meeting with him without representation, which he refused to do.

[74] At 5.04pm on 15 February Mr Ward sent Ms Mathers a text as follows:

“So I’ve been sacked for wanting to see my sick 4 week old baby…well done GSR [face and thumbs up emoji]”

[75] Neither Ms Mathers nor any officer of Great Southern Rail responded to this text message.

[76] Mr Ward proceeded to contact his union and seek their advice.

Allegations and termination

[77] On the morning of Tuesday 19 February Ms Mathers sent Mr Ward a text message:

“Please call me when you are free. You are about to receive a notice to meet letter to your GSR email for a meeting tomorrow at 830am. The letter outlines what the meeting is about. Please give me a call if you have any questions. Thanks Nicole HR”

[78] Mr Ward replied by text:

“Good Morning Nicole Sorry I can’t meet tomorrow due to personal reasons. Friday would be better as I also need to organise someone to be present on my behalf, under 24 hours notice is a bit inappropriate. Can I also please request the name of all attending who are representing GSR? Kind Regards Nicholas Ward

[79] Ms Mathers replied:

“Hi Nick. Marie and I will be attending the meeting as detailed in the letter. We are not available on Friday but will move the meeting at your request to Thursday morning at 8.30am. I will send through the attached letter to the email address provided. Please note you are required to attend, you cannot have someone attend on your behalf however can have a support person attend with you. Kind regards Nicole HR”

[80] Great Southern Rail then sent Mr Ward (by text and email) a letter dated 19 February 2019 (the allegations letter 19) requiring his attendance at the 21 February meeting.

[81] Mr Ward then replied again by text:

“Hi Nicole it is not due to support its due to an illness which I stated previous (personal reasons). I therefore still cannot before Friday. I dare say you will try to victimize me for this like you have done previously but I ask you to please understand. Kind Regards Nicholas Ward”

[82] Ms Mathers agreed to further reschedule. She sent the following by text:

“We will reschedule to Monday 25 Feb at 8.30am. It is really important that you attend this scheduled meeting.”

[83] On Friday 22 February (at 10.45am) Mr Ward sent Ms Mathers the following text:

“Hi Nicole can I please have my termination letter, I haven’t received one since being fired by you on the platform. It’s needed for unemployment. Kind Regards Nicholas Ward”

[84] Ms Mathers immediately replied (by text):

“Hi Nick as per our conversation on the platform and the notice to meet letter you have been stood down pending our investigation. Your employment has not been terminated. Please give me a call so we can discuss. Kind regards Nicole”

[85] Mr Ward did not call Ms Mathers, as requested. He sent a further text:

“Now your just lying Nicole…which proves why I told you I didn’t want a meeting without representation. You do this and you are no different to a thief or any other criminal. I have a 5 week old baby, you told me I was fired, not you might be fired!!”

[86] Ms Mathers replied (by text):

“Nick give me a call so we can discuss”

[87] Mr Ward did not call Ms Mathers, as requested.

[88] Mr Ward did not attend the meeting at 830am on Monday 25 February (rescheduled twice at his request), nor did any person on his behalf. Mr Ward had received a letter from his union (United Voice) dated 22 February 20 which presented options to him, including the option of maintaining his view that he had already been sacked (with associated risks) and the option of attending the scheduled disciplinary meeting. The decision to not attend the disciplinary meeting was left to Mr Ward.

[89] At 8.38am on 25 February Ms Mathers sent Mr Ward a text as follows:

“Hi Nick. Marie and I are here ready start our meeting. Can you please give me a call as soon as possible. Kind regards Nicole.”

[90] Mr Ward did not call Ms Mathers, as requested.

[91] In light of Mr Ward’s non-attendance and non-response, Ms Mathers and Ms Fantis discussed options. They were satisfied, based on the investigation they had conducted, that the allegations were made out. They collectively decided to recommend Mr Ward’s dismissal. The recommendation was made to the Chief People Officer of the Journey Beyond Group (the parent company to Great Southern Rail) Ms Marie Brokenshire. Ms Brokenshire agreed to the recommendation. Ms Mathers proceeded to draft a termination letter for Ms Fantis’s signature. The letter of 25 February 2019 as drafted was signed, and sent to Mr Ward (the termination letter 21).

[92] Mr Ward received the letter. He commenced these proceedings on 8 March 2019, some 21 days after 15 February and 11 days after 25 February.

Consideration

[93] The issue for determination is simply put: was Mr Ward’s dismissal “harsh, unjust or unreasonable” having regard to the considerations in section 387 of the FW Act and, if so, is it appropriate to order a remedy by way of reinstatement or compensation?

When was Mr Ward dismissed?

[94] In order to determine whether Mr Ward’s dismissal was harsh, unjust or unreasonable, I need to determine when Mr Ward was dismissed: whether it was on Friday 15 February (as contended by Mr Ward) or Monday 25 February (as contended by the employer).

[95] Mr Ward and Ms Mathers gave materially different versions of the platform conversation in their evidence.

[96] Mr Ward’s version (based on his witness statement as supplemented by his oral evidence) is as follows: 22

(Mr Ward walks towards Ms Mathers and Ms Fantis and hands his train keys)

Ms Mathers: Why don’t we come inside and have a chat?

Mr Ward: I will not speak to you about anything until I have representation because I don’t think you’re trustworthy (hands keys to Ms Fantis).

Ms Mathers: We’re letting you down.

Mr Ward: Is that how you phrase it? You’ve already let me down.

Ms Mathers: We will have a meeting.

Mr Ward: I’m not waiting for a meeting. So am I fired?

Ms Mathers: (smugly) Yes. (Ms Fantis looks at Ms Mathers)

Mr Ward (speaking to Ms Mathers): That’s all I wanted to know. You shouldn’t be in your job.

Mr Ward (speaking to Ms Fantis 23): How you got to the top I’ll never know. Enjoy your cocaine club.

(Mr Ward turns and walks away)

[97] Ms Mathers’s version (based on her witness statement as supplemented by her oral evidence) is as follows: 24

(Mr Ward walks towards Ms Mathers and Ms Fantis in a defiant manner)

Ms Mathers (gesturing to a seat on the platform): Can we please sit down and discuss the situation? We are very concerned about you.

Mr Ward (visibly angry): I am not speaking to you without representation.

Ms Mathers: (using her hands to try to de-escalate the situation) That’s fine. You don’t have to. We can meet next week and you can bring a representative.

Mr Ward (speaking rapidly): I am disgusted. I am going to the media about this. My uncle works in the media. You are going down, you are all cocaine cowboys. You will pay. You better both sleep with one eye open. This is disgusting.

Ms Mathers: Nick, we are trying to help you. We want to understand what happened.

Mr Ward (shaking his head): No. I am disgusted.

Ms Mathers: We are standing you down effective immediately. You are not to come on site or speak to anyone from the company.

Mr Ward: I’m disgusted, disgusted. I am going to the union.

Ms Mathers: That’s fine but you will be sent a notice to meet letter with allegations and will be required to come in for a meeting next week. Please leave the site now.

Mr Ward (walking backwards down the platform but facing Ms Mathers and Ms Fantis and yelling): This is not over. You are going down. I am going straight to the union. I am disgusted. I am going to the media. You will pay for this.”

[98] Ms Mathers expressly denied in her evidence that Mr Ward asked whether he was fired or that she replied ‘yes’ to that question. Ms Mathers also expressly denied that she used the words “we’re letting you down”. 25

[99] The conversation was witnessed by Ms Fantis. Her evidence 26 was broadly consistent with that of Ms Mathers. Ms Fantis also expressly denied that Mr Ward asked whether he was fired or that Ms Mathers replied ‘yes’ to that question or that Ms Mathers used the words “we’re letting you down”.27 Ms Fantis said that the words used were “we are standing you down”.

[100] Ms Fantis’s evidence was not however identical to that of Ms Mathers in all respects. She did not recall Mr Ward handing back keys. She did not recall mention of a separate meeting with representation.

[101] Evidence of this conversation was given some four months after it had occurred. That in itself impacts precise recall. So too may the state of mind each person brought to that conversation. I am satisfied that Mr Ward was angry and that by the end of the conversation he was abusive and yelling. For Ms Mathers’s part (and Ms Fantis) the conversation was unexpected. Mr Ward had appeared without notice. Ms Mathers had asked Mr Ward to call her upon arrival in Adelaide, not to come to the terminal.

[102] The critical finding I am required to make is whether, in the conversation Mr Ward asked if he was fired and whether Ms Mathers responded in the affirmative.

[103] I take into account the evidence, its plausibility and the demeanour of witnesses as they gave their evidence.

[104] I also take into account surrounding circumstances including subsequent conduct.

[105] In support of Mr Ward’s version it can be said that:

•  Upon returning to the car he told Ms Iannuzzi that he had just been fired (I accept this evidence of Ms Iannuzzi);

•  Some half an hour later he sent a text message to Ms Mathers asserting that he had just been sacked (and repeated that by text a week later);

•  Neither Ms Mathers nor anyone from the company sent Mr Ward a correcting text until the allegations letter four days later and Ms Mathers’s responding text a week later.

[106] In support of Ms Mathers’s version it can be said that:

•  The employer had just commenced an investigation that afternoon and that investigation was incomplete without Mr Ward’s version;

•  The employer was planning to meet Mr Ward and wanted him to make contact for that purpose;

•  The company would not have sent Mr Ward an allegations letter and sent multiple texts to arrange and then reschedule a meeting if it had already terminated his employment;

•  The initial texts sent by Mr Ward on 19 February indicated an openness to meet on a convenient date and are not consistent with an employee having already been dismissed.

[107] Both Ms Ward and Ms Mathers were equally consistent and firm in their evidence, including under questioning from myself that their divergent versions of the platform conversation, as recalled in the witness box, was true and correct.

[108] After careful consideration and on the balance of probabilities I do not accept Mr Ward’s version insofar as he claims that he asked whether he was fired and that Ms Mathers responded in the affirmative. I prefer Ms Mathers’s version that Mr Ward asked no such question and that there was no such (affirmative) response. I do so for the following reasons:

•  Ms Mathers’s evidence, on this point, is corroborated by the evidence of Ms Fantis. That their evidence of the platform conversation as a whole is not identical is an indication that their evidence was their personal recall and not a joint contrivance. On this point however their evidence is at one;

•  Mr Ward’s version is not implausible but it is less plausible than Ms Mathers’. His version is predicated on the proposition that Ms Mathers lost composure and in the heat of the moment (after being told by Mr Ward that he just wanted an answer then and there and didn’t want a meeting) let her guard down and sacked him when she had not intended to do so; and that she subsequently tried to undo that damage by activating the intended allegations letter and meeting. However, Ms Mathers’s evidence is, for three reasons, more plausible:

Firstly, it is consistent with her behaviour and intent immediately before the (unexpected) platform conversation. She had, about an hour earlier, sent Mr Ward a text asking him to phone her on his arrival in Adelaide. Her intent was to inform him by phone that an allegations letter would be sent to him advising of the company’s requirement that he meet the following week to discuss the events. 28 Neither she nor the employer had formed an intention to fire him in the absence of that meeting and securing his explanation(s).

Secondly, Ms Mathers was an experienced human resources practitioner. 29 An experienced practitioner is unlikely to have, even if unsettled by abusive language, in the heat of the moment sacked an employee contrary to a predetermined course to take a considered approach. It was central to her training and role as human resources manager that disciplinary processes be fair.

Thirdly, it is more likely than not that Ms Mathers used the phrase “standing you down” (her version) rather than the phrase “letting you down” (Mr Ward’s version). “Standing you down” has meaning in an employment context. “Letting you down” is an abstract phrase that has no particular meaning. I recognise that the (different) phrase “letting you go” is shorthand for saying ‘you’re fired’ but neither Mr Ward nor Ms Mathers (nor Ms Fantis) gave direct evidence that this was the phrase used. I find that Ms Mathers used the phrase “standing you down”. The use of that phrase is more plausible and consistent with the employer’s pre and post conversation conduct.

•  The subsequent conduct of Ms Mathers on 19 February, in preparing an allegations letter and scheduling a meeting to discuss the allegations is not consistent with having fired Mr Ward on 15 February. As United Voice said to Mr Ward in its letter of 22 February (without discounting his version) “it would seem bizarre to be asked to attend a meeting if you had already been terminated.” 30

[109] In making this finding, I also conclude that it is more likely than not that Mr Ward did leave the platform conversation believing (wrongly) that he had been told that he was being “let down” and that this meant (in his mind) that he had been sacked. Mr Ward had been and remained angry with the events of the preceding 48 hours. In that heightened state of emotion, where he was on the platform at his initiative and on his terms (to do and say what he intended and to not enter into discussion with the employer unless and until he was represented) it is likely that he was not listening precisely to what was being said to him or misheard what was said. It is more likely than not that Ms Mathers said “we are standing you down effective immediately, you are not to come on site or speak to anyone from the company” but that Mr Ward heard “we are letting you down” and interpreted the whole of Ms Mathers’s statement (including the instruction ‘don’t come back on site’) as a termination.

[110] This explains why Mr Ward, on returning to his car, told Ms Iannuzzi that he had been sacked, and why he sent a text message to that effect half an hour later (5.04pm).

[111] It is also relevant to note that in his angry state Mr Ward was half expecting to be fired. On his own version, he said ‘that’s all I needed to know’. Whether or not that is what he said (or in what context), it is reflective of his state of mind at the time of the platform conversation. Other evidence from Mr Ward similarly points to him being prepared for (but not wanting) dismissal at this point. 31

[112] I take into account that Ms Mathers did not reply to Mr Ward’s text (of 5.04pm) to correct the record; but this does not disturb my finding. A reasonable criticism can be made of the employer for not having done so, and for allowing Mr Ward to remain under an incorrect impression of his employment status over the weekend and the following Monday. In explanation, Great Southern Rail submitted that after 24 hours of (what it considered) abusive and threatening communication from Mr Ward, including the face to face threats on the Keswick platform on 15 February which left Ms Mathers feeling “shaken and unsafe” 32 (and Mr Ward then asking for Ms Mathers’s surname), the employer decided to draw a pause on communication by text and make its next communication a more formal allegations letter. There is force in this submission. It mitigates somewhat the criticism that can reasonably be levelled at the employer for not immediately correcting the record. I accept Ms Mathers’s evidence:33

“I felt that if I responded in any way it would have caused further escalation…the next text message that he sent me was ‘Sorry Nicole what is your surname?’ which was indicating to me that he was following through his threats he was going to the media and I wanted to remove myself from that situation…I just wanted to leave the situation….at that point his behaviour was so out of control and I felt so threated that I did not want to respond at that point…I did not want to continually have conversation with Mr Ward at that point.”

[113] Having concluded that Mr Ward was not dismissed on 15 February 2019, I find that he was dismissed on 25 February 2019, on the joint recommendation of Ms Mathers and Ms Fantis, as communicated by letter of the same date under the hand of Ms Fantis.

Was the dismissal unfair?

[114] Having found that Mr Ward was dismissed on 25 February, I now consider whether it was an unfair dismissal. I am under a duty to consider each of the criteria in section 387 of the FW Act, 34 and now do so. In so doing, I take into account all of the evidence and submissions before me.

[115] Section 387 of the FW Act 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.”

Valid Reason (section 387(a))

[116] An employer must have a valid reason for the dismissal of an employee. It is the Commission’s task to determine if a valid reason exists. The reason(s) should be “sound, defensible and well founded” 35 and should not be “capricious, fanciful, spiteful or prejudiced.”36

[117] In a conduct-based dismissal 37 the test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. The Commission must itself make findings as to whether the conduct occurred based on the evidence before it.38

[118] Where an employee is dismissed for misconduct, as in this case, an evidentiary onus rests on an employer to establish that on the balance of probabilities the misconduct occurred. 39

[119] It is also well settled that where, as in this case, an employer dismisses for serious misconduct, the standard of proof requires “a proper level of satisfaction” 40 that the conduct did in fact occur having regard to the seriousness of the allegations. This is commonly referred to as the Briginshaw standard41. This requires more than mere satisfaction that it is more likely than not that conduct occurred. Rather it requires a proper degree of satisfaction that the conduct did in fact occur. Having regard to the nature of the allegations against Mr Ward I am satisfied that the Briginshaw standard is the approach to be applied in this matter.

[120] In applying that approach I recognise that the standard of proof remains a civil standard. The allegations are allegations of dereliction of professional obligations as a carer. Serious though they are, they are not criminal charges. I adopt the approach set out in the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others: 42

“2. The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...”.

There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading.” [footnotes omitted]

[121] When considering applications alleging unfair dismissal, this approach has been endorsed by the Federal Court of Australia 43 and by full benches of this Commission.44

[122] In this matter Great Southern Rail dismissed Mr Ward because it considered that he had fundamentally breached his duty as an employee. The allegations letter particularised the alleged breaches. The termination letter concluded that “on the balance of probabilities…the allegations are made out”. It went on to assert: 45

“Your unwillingness to comply with the Company’s policies and procedures and your repeated breach of the nature of your breaches, amounts to wilful misconduct making it clear than an ongoing employment relationship has become untenable.”

[123] For the purpose of considering whether these alleged breaches occurred and, if so, whether they constitute (collectively or individually) a valid reason for dismissal, it is convenient to group them into four categories:

•  That Mr Ward allegedly failed to board the train at Alice Springs on 14 February, as directed;

•  That Mr Ward allegedly failed to work a rostered shift, as required;

•  That Mr Ward allegedly communicated to staff and managers in an offensive and threatening manner; and

•  That Mr Ward allegedly put at risk the name and brand of the company.

Failure to board the train on 14 February

[124] It is not in dispute that Mr Ward failed to board the Ghan in time for its scheduled departure at 12.45pm on 14 February 2019. Nor is it in dispute that Mr Ward made a conscious decision not to board the train despite being requested by both local Ghan management (Mr Smith) and managers based in Adelaide (Ms Mathers and Ms Fantis). He was directed on multiple occasions that morning to board the train.

[125] Those directions were lawfully made. At all relevant times Mr Ward was an employee of Great Southern Rail. He was subject to its direction. Company policy, as well as its duty of care, required the employer to account for the whereabouts of its employees whilst on the journey. The train was Mr Ward’s place of work, and he was required to be at his workplace (as rostered) or (with permission) required to be in his cabin if he was unwell.

[126] The real issue in considering whether this was an act of misconduct is to assess whether Mr Ward’s decision not to do so was reasonable or not; put another way, whether the lawful direction to re-board was a reasonable direction.

[127] In the circumstances, and especially those as made known to the employer, it was a reasonable direction.

[128] Mr Ward’s desire was to return to his home base, Adelaide. The train was travelling to Adelaide. It was scheduled to arrive in Adelaide at lunchtime the next day, and did so. Had Mr Ward re-boarded the train he would have arrived 24 hours later at his intended destination. As it turned out, the train arrived slightly earlier than Mr Ward’s flight the following day.

[129] Mr Ward’s desire was not just to return to Adelaide but to do so immediately, by plane. The employer claimed in evidence that it has a policy to fly employees back to their home base only in the case of a serious life threatening emergency associated with that employee or an immediate family member. That policy was not produced in evidence; in evidence 46 it was indicated that the policy is the product of practice and convention, not documentation.

[130] I consider it poor practice that such a policy is not documented. Employees are entitled to know under what circumstances they may be able to be flown home at short notice. However, the policy itself is not unreasonable. The cost of flying employees from interstate or regional locations is not insignificant, and doing so means that the employer would have to take steps to make sure that the employee does so safely. It is reasonable that the employer has a policy requiring an employee, even one unwell, to remain on the train except where there is a genuine emergency.

[131] Mr Ward’s desire was not just that he return to Adelaide immediately by plane, but that the employer pay for the flight. He wanted the employer to pay, and was holding firm on that demand particularly to Ms Mathers. Even if it could be said that the employer should have acceded to his request to fly immediately to Adelaide that afternoon, requiring the employer to pay in the absence of a genuine emergency was unreasonable. The employer’s refusal to do so was reasonable.

[132] These conclusions presuppose that Mr Ward’s circumstances, as communicated to the employer, were not a genuine emergency. I so conclude. His reasons for wanting to travel back to Adelaide urgently that day were:

•  He was feeling unwell; and

•  He had an unwell child in Adelaide (born five weeks earlier).

[133] Neither of these reasons rendered his demand reasonable.

[134] Mr Ward was certainly distressed. He was feeling unwell because he continued to be upset by the drunken passenger’s spurious claim that Mr Ward had made an inappropriate remark to that person’s wife. Yet by 14 February this issue had, objectively speaking, been dealt with days earlier when the train manager Mr Smith told Mr Ward that the complaint had no credence and was not being taken seriously by the company or investigated because the passenger had been drunk. Mr Ward had been absolved of wrongdoing without being put to investigation but somewhat irrationally he wanted the investigation. That said, I acknowledge that Mr Ward was still genuinely upset over the incident on 14 February, despite being given 13 February off work.

[135] Mr Ward was also feeling unwell and angry because that morning his arrangement to take the off-train tour had been overridden by his immediate manager. Mr Ward had some reasonable cause to be off-put by this override given that he had cleared it with the train manager and wanted fresh air but his reaction was disproportionate. His immediate manager was authorised to make the call, and she did. Mr Ward was not rostered to conduct off-train tours at this transit stop. Mr Ward had been unwell and off work the previous day. Guiding a four kilometre walk in Simpson’s Gap in the middle of summer overseeing passengers (some elderly) is not a permission the employer can reasonably be expected to lightly give or allow employees to transact between themselves.

[136] Mr Ward was also feeling unwell because the carpet in the corridor outside his cabin was damp. I accept this was so; Ms Fantis inspected the carpet on the train’s return to Adelaide and found it damp (but not soaked) 47. A damp carpet in a confined carriage may well create a misty odour. In his enclosed cabin Mr Ward was one step removed from the dampness but I accept his evidence that it made the carriage somewhat unpleasant for him. Nonetheless, it was not (at that time) so serious; he had alerted other staff but it was not logged (by Mr Ward or others) as a job for rectification.48 It was certainly not a basis to fly an employee to home base. The request by Mr Ward for ‘fresh air’ was reasonable; but this was accommodated for all hospitality staff during the Alice Springs transit stop.

[137] To the extent that these reasons (rational or not) made Mr Ward feel unwell, he was (prior to boarding) told by Mr Smith and then by Ms Mathers that he would be allowed to remain in his cabin and off work for the duration of the trip to Adelaide (as he had the prior day). This was a reasonable attempt by the employer to accommodate Mr Ward’s circumstances.

[138] I find that the employer, from the first communication by Ms Mathers on 14 February, consistently asked Mr Ward for details and information about why he did not want to re-board. Mr Ward asserted that he had been ‘bullied and harassed’ on the train. The employer was entitled to assess whether this was a reasonable claim, and to do so it made reasonable requests of him for information. That information was not forthcoming. The bullying and harassment Mr Ward was feeling was based on his unhappiness that the drunken passenger’s complaint against him was not being investigated, and that his immediate manager had overridden his desire to take the off-train tour.

[139] With respect to having a five week newborn child in Adelaide, this (without more) was not a reason to fly Mr Ward back from Alice Springs. His concern for his partner and child and his regret that he was away for so long was entirely reasonable, as was his pre-departure request that he be given shorter journeys if possible. Yet Mr Ward took the shift that was offered, knowing that he would be away for six days from his partner and their newborn. That was clearly a painful decision but not one that the employer needed to overcome three quarters through the journey by flying him back home.

[140] I have made a finding that Mr Ward informed Ms Mathers, Ms Fantis and Mr Smith during the morning of 14 February to wanting to be with his five week old child. I take this into account. Mr Ward was however selective who he told that the child was unwell (as distinct from wanting to be with). That morning, he withheld that information from Ms Mathers and Ms Fantis, believing it was an unnecessary intrusion into his personal affairs to disclose this to head office managers. Though he did that morning tell Mr Smith that his child was unwell, it was unreasonable to withhold that information from Ms Mathers and Ms Fantis especially in light of their requests for information, the direct discussions he was having with them and the fact that they (in Adelaide) had the final call on whether he would be flown home at company expense. Had he done so, the employer would have been able to assess whether a genuine emergency existed and, according to Ms Fantis 49, may have been agreeable to flying Mr Ward home at company expense.

[141] The consequence of Mr Ward not boarding the train was that he, dressed in company uniform, was to be left isolated in Alice Springs on a day of scheduled work with no evident way to get home. There are clear implications for and limitations upon an employer in meeting its duty of care once an employee puts themself in that position. The steps the employer took that afternoon, once the Ghan departed, were reasonable in the circumstances. Whilst Mr Ward took exception to it, contacting his next of kin was one of limited options available to the company to assess his wellbeing (emotional and physical). Ms Mathers’s booking of the Todd Tavern (at company expense) was made with goodwill though it backfired given the impression the venue left on Mr Ward.

[142] The employer’s direction that Mr Ward board the Ghan for its final leg to Adelaide was both lawful and reasonable. There were no reasonable grounds, objectively assessed, to warrant Great Southern Rail taking the alternate and rare course of flying an employee back to home base at company expense, as Mr Ward had demanded. Whilst he was genuinely upset at being away from his child and feeling unwell, his conduct was erratic. There were no reasonable grounds on which Mr Ward refused to re-board. Refusing the direction was a breach of duty. It was misconduct.

[143] The circumstances of the misconduct (including the consequences of being left stranded in Alice Springs, the multiple requests made that he re-board, and the willingness of the employer to accommodate him should he re-board) rendered the misconduct serious misconduct.

Failure to work a rostered shift

[144] Great Southern Rail claimed (in its allegations letter) that Mr Ward refused “to undertake a reasonable work instruction (execute the tasks assigned to you on the 14 February 2019)”.

[145] By taking himself off the train and failing to re-board Mr Ward was not able to undertake the duties of a Hospitality Attendant for which he was employed, either on the morning of 14 February or on the afternoon.

[146] To the extent that this allegation relates to work that would have been performed after Mr Ward was directed to re-board, account must be taken of the fact (as I have found) that both Mr Smith and Ms Mathers told Mr Ward that should he re-board and still feel unwell he could remain in his cabin and not undertake duties.

[147] Whilst there was a small window of time between Mr Ward being first directed to re-board to work his shift and subsequently being told that he could re-board without being required to work his shift, that time was short. In that period a ‘negotiation’ (of sorts) was being had with him.

[148] In these circumstances I do not consider that Mr Ward failed to work a shift on 14 February, as directed. His failure to work a portion of that shift was for a limited period only, and the subsequent approval that he could have the remainder of the shift off active duty (and the next day) detracts from the seriousness of any breach.

[149] I do not consider this breach of duty to have been serious misconduct.

Using offensive and threatening language

[150] The allegations letter and the termination letter allege that Mr Ward made threats of violence towards staff and managers and yelled, screamed and swore at them.

[151] There is no evidence before me that would satisfy me, to the requisite standard of proof, that Mr Ward was offensive or violent towards non-managerial staff.

[152] However, the allegation of offensive and threatening language towards two managers, Ms Mathers and Ms Fantis, is made out.

[153] Mr Ward’s behaviour at the Alice Springs terminal, in Alice Springs on the afternoon and evening of 14 February and at the Keswick terminal in Adelaide was erratic and this included the following offensive and threatening behaviour towards managers:

•  Telling Ms Fantis to “fuck off” 50 and that she was “a fucking shit manager”51;

•  Telling Ms Fantis and Ms Mathers, on at least two occasions, that they should “sleep with one eye open”;

•  Telling Ms Fantis and Ms Mathers that they were variously part of “a cocaine club or cocaine tower”;

•  Telling Ms Fantis and Ms Mathers that he would “bring them down”;

•  Telling Ms Mathers that she will “pay for what she has done”;

•  Telling Ms Fantis “you had better watch out”;

•  Telling Ms Mathers that she was “terrible at her job”;

•  Telling Ms Mathers and Ms Fantis that he “did not know how they got their position”; and

•  Telling Ms Mathers that she was “nasty and rude”.

[154] In addition, Mr Ward told Ms Mathers (by text on 22 February) that she was a “liar” and akin to a “thief and a criminal”. Whilst that language was rude and unprofessional, I do not view that text with the same level of seriousness, given its context. When sending that text, Mr Ward still believed (albeit wrongly and despite having received the allegations letter the day prior) that he had been sacked during the platform conversation. Ms Mathers’s text earlier on 22 February saying that he had not been so sacked was the trigger for Mr Ward accusing her of lying. Unlike the other abovementioned abusive and threatening communication (where Mr Ward was recklessly indifferent to the manner in which he communicated with Ms Mathers and Ms Fantis), his 22 February text reflected a genuinely held and considered view that what he was now being told was false.

[155] These abusive and threatening comments by Mr Ward were made in person, by text and by telephone. When made by telephone or in person they were accompanied by Mr Ward shouting, speaking quickly and being agitated and aggressive in tone and manner. They left both Ms Mathers and Ms Fantis feeling threatened, shaken and unsafe. This was particularly so in the case of Ms Mathers after the platform conversation. Until the platform conversation, the threats had been communicated by telephone or by text. The platform conversation was different; it was a face to face confrontation, with Mr Ward only metres away. They were not express threats of violence but irrespective of whether they were intended to be carried out they were threats to bring her, and others, down in some non-specified manner. I accept the evidence of Ms Mathers’s that she was genuinely shaken: 52

“I felt incredibly threatened. I had never been in a situation where a staff member had been so aggressive. I had expected that on 15 February he’d have been in a calmer state as he had the night to calm down…”

“I felt physically threated at the time. We were in the same site, vicinity. I was incredibly concerned. At that point I raised it with Marie Brokenshire because I felt threated and scared.”

[156] I also accept the evidence of Ms Fantis following the 14 February telephone call: 53

“Ms Brokenshire: How did that three minute telephone exchange make you feel?

Ms Fantis: Very shaken, quite fearful, I actually pulled over and called Ms Mathers…once Nicole spoke to me and reassured me and calmed me down I then proceeded to drive home.”

[157] There is some evidence to mitigate the abuse and threats. Mr Ward said he subsequently apologised (in the platform conversation) to Ms Fantis for swearing at her (in the 5.46pm conversation the previous day) 54, though Ms Fantis did not recall him doing so.55 I accept his evidence that he did so. However, Mr Ward made no apology to Ms Mathers or Ms Fantis for the general threats and abuse he levelled at them. I take into account that Mr Ward was intensely frustrated (“emotionally distraught” in his words56) and felt that his concerns needed to be better understood. I also take into account that at points in time (speaking to the train manager and speaking to Ms Mathers once she agreed to pay for his accommodation) he became calm.

[158] However, these were not isolated instances of abuse and threats. There were many such moments of abuse over a 24 hour period (14 to15 February). They were not the product of a singular rush of blood. They were the product of erratic behaviour over a prolonged period and a lashing out at the managers because Mr Ward was not getting his way. Mr Ward was recklessly indifferent to the manner in which he communicated with Ms Mathers and Ms Fantis.

[159] Nor were these outbursts provoked. I find that Ms Fantis and Ms Mathers remained calm and professional, albeit firm. Mr Ward interpreted the rejection of his request to be flown home at company expense as rude, and a direction by Ms Mathers that he re-board the train as nasty and rude. Objectively speaking it was not. A human resources manager (Ms Mathers) indicating that consequences could arise for an employee not re-boarding a train as directed was stating an obvious fact, unpalatable as it was to hear.

[160] The abusive and threatening language used by Mr Ward was serious misconduct.

Put the company reputation at risk

[161] The allegations letter and the termination letter allege that Mr Ward put the company reputation at risk in two contexts: firstly, that Mr Ward was wearing the company uniform whilst stranded in Alice Springs and making threats over the phone whilst in a public space and whilst in uniform; and secondly, that Mr Ward threatened to put the company reputation at risk ‘by going to the press’.

[162] With respect to the first allegation, it is true that Mr Ward was wandering around Alice Springs stranded in company uniform, and it is possible that members of the public who saw him may have found that unusual especially if they had overheard a heated conversation. I do not however have sufficient evidence before me to make out the first limb of this allegation to the requisite standard of proof. There is no evidence that a member of the public was disarmed by a Great Southern Rail employee being in uniform in the town. There is no evidence that any member of the public overheard Mr Ward being abusive over the phone.

[163] The second limb of this allegation is made out. There is clear evidence before me, and I have found, that Mr Ward threatened his employer to take the issue to the media. He claimed that he had connections to the press and that they would be interested in the story. He threatened this to Ms Mathers, and then to Ms Fantis: “this is going to come back and bite you on the arse with the media”; “my uncle works for the Advertiser so it’s easy to go to the press”; “how would you like me to go down that road?”; “be a media nightmare if this went viral. I know what you did Marie!” 57 His evidence was that he “probably would have said this again”58 given the same circumstances.

[164] In his evidence, Mr Ward did not dispute that he said these things. He claimed however that he threatened that he might go to the press, not that he would; and he claimed that he never did and never intended to go to the press. 59

[165] That aside, the threats were pointed and deliberate. Mr Ward first made the threat in order to place maximum pressure on the employer to relent and allow him to fly home at the employer’s expense. It led the employer to notify its public affairs officer of the potential for adverse publicity.

[166] Mr Ward was not acting or threatening to go to the press as some form of whistle-blower. He was seeking an outcome to which he was not entitled, an airfare home paid by the employer. Threats unreasonable made by an employee to seek to scandalise their employer in order to secure a preferred outcome, whether carried out or not, are a breach of duty. A passing aside made in frustration on one occasion may be less serious, but the threat by Mr Ward was repeated and it had purpose. It was misconduct. In combination with the other threats and abuse he made, it was an element of threatening and offensive behaviour that constituted serious misconduct

Conclusion on valid reason

[167] The misconduct I have found was serious, and in particular the failure to board the Ghan at Alice Springs as directed, and the threats and the abuse of mangers over the ensuing days.

[168] Had Mr Ward’s reason for failing to re-board and wanting a funded flight home been a serious hospitalisation of an immediate family member (such as his baby daughter), and (if that were the situation) had he then informed his employer, Mr Ward would have had a valid reason for refusing to re-board the Ghan and a valid reason for seeking an immediate employer funded flight home to deal with a genuine emergency. In those circumstances, a failure to re-board would not have been a breach of duty, and would not have constituted a valid reason for dismissal. Further, an unreasonable refusal by an employer in those circumstances may also have mitigated more materially his subsequent offensive and threatening behaviour and may even have made dismissal on that ground harsh. However, neither of those preconditions existed prior to the Ghan departing Alice Springs and Mr Ward’s refusal of the lawful and reasonable direction to re-board. His daughter had (at that time) neither been hospitalised nor had Mr Ward informed the employer of details as to her condition that reasonably could have led the employer to conclude that a genuine emergency existed.

[169] The findings I have made of serious misconduct both individually and collectively constitute a valid reason for dismissal. I so conclude.

Notification of the reason for dismissal (section 387(b))

[170] Mr Ward was notified of the reason for dismissal in the dismissal letter of 25 February 2019.

Opportunity to respond (section 387(c))

[171] The evidence before me is that Mr Ward was provided a clear and fair opportunity to respond to the allegations against him.

[172] The allegations letter of 19 February 2019 detailed the particulars of eight allegations. He was told in that letter that they were “of a very serious nature”.

[173] Extensive steps were taken by Great Southern Rail to accommodate a convenient time for the disciplinary meeting to discuss the allegations. The company respected Mr Ward’s indication on the Keswick platform on 15 February that he did not wish to discuss the matter then and there. Its first proposed meeting date was then moved to accommodate Mr Ward as was its second proposed meeting date.

[174] Mr Ward knew of the 25 February meeting four days earlier. In circumstances where he had over the previous week been actively obtaining advice from his union, there was no impediment to him attending that meeting. A medical certificate he obtained on 15 February (in Adelaide) 60 certified him as unfit to work on 15 and 16 February, not on subsequent days. In any event (and somewhat inexplicably) he did not give that certificate to the employer. It was only produced at the hearing of this matter. It does not materially advance his case, though it does confirm that he was unwell to work (and did not work) on the day he returned to Adelaide (15 February).

[175] I conclude that there was no reasonable basis for Mr Ward not attending the disciplinary hearing of 25 February other than his claim that he had been told by his union not to do so. I do not need to determine whether that is so. The union certainly did not do so in its letter to Mr Ward of 22 February. Whether or not he was so advised, he had the opportunity to attend and chose not to.

[176] I conclude that Great Southern Rail provided Mr Ward a reasonable opportunity to respond to the allegations of misconduct levelled against him.

Opportunity for support person (section 387(d))

[177] Mr Ward was afforded the opportunity to attend the (aborted) allegation meeting of 21 February and the rescheduled meeting of 25 February with a support person. This was specifically made known to Mr Ward in the letter of allegation (and by an earlier text on 19 February).

[178] Mr Ward on 15 February quite reasonably indicated to the employer that he did not wish to speak about these events to the managers then and there (on the Keswick platform) without a representative present. Ms Mathers and Ms Fantis did not press that he should do so.

[179] I conclude that Great Southern Rail did not unreasonably refuse Mr Ward a support person.

Warnings concerning performance (section 387(e))

[180] Mr Ward had no warnings concerning his performance prior to the dismissal.

[181] He had worked for Great Southern Rail for some fifteen months. Although he considered himself overqualified given his maturity and past experience in hospitality management, there is no evidence before me that he had been unwilling to accept the role of a hospitality attendant, perform it to the best of his abilities, contribute to a positive experience for passengers and take direction from managers.

[182] Mr Ward was not however dismissed on performance grounds. He was dismissed for conduct issues. In that context the absence of warnings concerning performance is a neutral consideration in this matter.

Size of employer’s enterprise (section 387(f)) and human resource capability (section 387(g))

[183] Great Southern Rail is a significant employer employing in excess of 350 persons.

[184] It has dedicated human resources capability. Its size and human resource capability provides a basis to conclude that it has the capacity to establish policies concerning the conduct and well-being of employees and persons in its care, monitor compliance with such policies and contractual obligations, manage performance and conduct issues as they arise, and seek external advice on human resources or industrial matters where necessary.

Other matters (section 387(h))

Mitigation: personal circumstances

[185] In the context of considering valid reason, I have considered the circumstances advanced by Mr Ward in mitigation, being that he felt unwell whilst on the return journey, that he had a young baby who on the relevant day was unwell (and was later hospitalised), and that the overnight accommodation booked for him in Alice Springs made him feel unsafe.

[186] I have concluded that each of these considerations, whilst relevant, do not carry sufficient weight to set aside the breaches of duty and the valid reason they collectively constitute.

Mitigation: proportionality

[187] In a conduct matter such as this, it is relevant to consider whether dismissal was harsh in that dismissal (or summary dismissal) may be a disproportionate sanction to the misconduct.

[188] I have concluded that the misconduct was twofold (failing to board the Ghan as directed, and the use of offensive and threatening language towards managers as well as threats to go to the media). I have found that despite feeling unwell, being anxious about his child and unhappy with the state of the Todd Tavern, the misconduct by Mr Ward (on both accounts) was serious. For those reasons I do not consider summary dismissal a disproportionate response by the employer. The breaches struck at the heart of the employment relationship and the duties Mr Ward owed to comply with lawful and reasonable directions and conduct himself and communicate in a professional, non-threatening and respectful manner.

Mitigation: harsh impact on Mr Ward

[189] It was submitted by Mr Ward that his dismissal was harsh because of the impact it has had on him and his earning capacity. He has lost trust in the employer particularly because he strongly believes “more than anything else” that that he has been lied to (as a consequence of the employer subsequently denying, to him and to the Commission, that he was sacked during the platform conversation). 61 Since dismissal, Mr Ward has been depressed, unmotivated and not his usual self, though he has, to date, not sought professional help despite the urgings of his partner.62 Mr Ward says that he may seek professional help “once this is over and done with”.63

[190] These impacts on Mr Ward appear real. I also take into account Mr Ward’s age, work history and that he has a young child. However, these factors alone are not unique. They do not outweigh conduct in breach of policy or act to sufficiently transform a dismissal for a valid reason into one that can be characterised, at law, as harsh. 64

[191] In considering the significance of these factors I must weigh them alongside the self-evidently serious nature of the conduct, as well as my overall findings concerning procedural fairness.

[192] I am not satisfied that the impacts of dismissal on Mr Ward render the dismissal harsh.

Conclusion

[193] This matter concerns summary dismissal for serious misconduct.

[194] My role is not to review whether the employer had a reasonable basis for its decision but to consider whether, on the evidence before me, the dismissal of Mr Ward was harsh, unjust or unreasonable.

[195] The onus of proof in establishing that a dismissal was harsh, unjust or unreasonable rests on an applicant, in this case Mr Ward.

[196] However, in cases such as this, the employer carries a considerable evidentiary burden of proof to establish that the misconduct which they allege did in fact occur. I have made findings of fact having regard to the evidentiary onus borne by the employer. Those findings of fact have been based on the requisite standard of proof.

[197] The ambit of the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd  65 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.”

[198] In reaching my conclusion, I adopt the approach set out by a full bench of this Commission in B, C and D v Australian Postal Corporation T/A Australia Post: 66

“[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.

[59] It is in that weighing that the Commission gives effect to a ‘fair go all round’.”

[199] I have found that there were valid reasons for dismissal based on serious breaches of duty and in particular Mr Ward’s refusal to re-board the Ghan at Alice Springs as directed and the offensive and threatening language he used towards managers and towards the company.

[200] Collectively the serious misconduct established a well-founded loss by the employer of trust and confidence in Mr Ward’s capacity to work as directed and to do so in a respectful and not insubordinate manner.

[201] In these circumstances the dismissal was neither unjust nor unreasonable. There was a sound, defensible and well-founded reason for dismissal.

[202] I also conclude, based on my finding that Mr Ward was dismissed on 25 February 2019 and not on 15 February 2019, that there was no denial of procedural fairness to Mr Ward in either the investigation or decision to dismiss.

[203] Reasonable criticism can be levelled at the fact that the employer’s policy concerning emergency flights home for employees was not in writing and not able to be clearly understood in advance by Mr Ward or other employees. Reasonable criticism can also be made (and I do so) that the employer did not act promptly on the evening of Friday 15 February or over the following weekend or on Monday 18 February to correct Mr Ward’s misunderstanding that he had been fired on the Keswick platform. However, in the context of the abusive communication and threats made on the platform and Ms Mathers feeling unsafe in light of those threats this delay was understandable, if not excusable. In any event, having regard to the overall investigation and consideration of the matter conducted by the employer, including the opportunity given to Mr Ward to respond (which he refused), Mr Ward was not denied a fair go all round. The procedures applied were generally fair and the decision to dismiss was not predetermined.

[204] I have considered whether the dismissal was harsh in three contexts: whether harsh because of mitigating factors, or personal impacts on Mr Ward or whether it was a disproportionate response. I have concluded that these impacts, whilst real, do not render the dismissal unfair. Nor was summary dismissal a disproportionate response.

[205] As the dismissal was not unfair, I am not required to consider issues of remedy.

[206] For these reasons and in conjunction with the publication of this decision I issue an Order that the application be dismissed.

DEPUTY PRESIDENT

Appearances:

N. Ward, on his own behalf

M. Brokenshire, for the Respondent

Hearing details:

2019.

Adelaide.

10 and 11 July.

Printed by authority of the Commonwealth Government Printer

<PR710536>

 1   No appearance by the Applicant on 21 May 2019. All parties appeared on 22 May 2019. Directions issued 23 May 2019

 2   A1, A2 and A3

 3   R4

 4   A4 – A9; R2 and R8

 5   Pearse v Viva Energy Refining Pty Ltd [2017] FWCFB 4701 at [14]. See also section 591 of the FW Act and King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, 17 March 2000) Print S4213 at [61] - [62]; Enterprise Flexibility Agreement Test Case (Print M0464) at page 13; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 509

 6   Audio 10.7.19 11.32am

 7   Audio 10.7.19 12.07pm

 8   South Australia has daylight saving time in summer months; Northern Territory does not

 9   Audio 10.7.19 2.38 to 2.42pm

 10   Audio 10.7.19 2.42pm

 11   Audio 11.7.19 10.32am

 12   Audio 10.7.19 12.20pm; 2.10pm to 2.19pm

 13   Audio 10.7.19 2.13pm

 14   Audio 11.7.19 10.39am

 15   Audio 11.7.19 3.09pm

 16   Audio 11.7.19 3.10pm

 17   A12

 18   R4

 19   R5

 20   A10

 21   R6

 22   Audio 10.7.19 12.37pm; A1

 23   During this conversation Mr Ward said he also apologised to Ms Fantis for having sworn at her the previous day, though his evidence was unclear precisely when during this conversation the apology was made

 24   R1; audio 10.7.19 11.57am to 12.23pm

 25   Audio 10.7.19 12.23pm

 26   Audio 11.7.19 3.15pm

 27   Audio 11.7.19 3.16pm

 28   Audio 11.7.19 12.12pm

 29   Audio 11.7.19 12.13pm to 12.16pm

 30   A10 page 2

 31   Audio 10.7.19 12.40 – 12.49pm; 2.56pm

 32   R1 Statement of Nicole Mathers paragraph 15

 33   Audio 11.7.19 12.26 to 12.29pm

 34   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]

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

 36   Ibid

 37   except where the Small Business Fair Dismissal Code applies

 38   King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 [24]

 39   Edwards v Guidice (1999) 94 FCR 561 [6]-[7]

 40   Budd v Dampier Salt Ltd (2007) 166 IR 407 at [14] - [16

 41   Briginshaw v Briginshaw (1938) 60 CLR 336

 42   (1992) 110 ALR 449

 43   Edwards v Guidice (1999) 169 ALR 89 at 92 per Moore J

 44   Parker v Garry Crick’s (Nambour) Pty Ltd t/as Crick’s Volkswagen [2018] FWCFB 279 at [124] – [125]; Hill v Peabody Energy Australia PCI Pty Ltd [2017] FWCFB 4944 at [15]; Heinz Company Australia Ltd v Green [2014] FWCFB 6031 at [14] – [15]; Budd v Dampier Salt Ltd (2007) 166 IR 407 at 14 - 16

 45   R6

 46   Audio 11.7.19 1.48pm

 47   Audio 11.7.19 4.45pm

 48   Audio 10.7.19 12.25pm

 49   Audio 11.7.19 2.59pm

 50   Audio 10.7.19 12.35pm

 51   Audio 11.7.19 3.10pm

 52   Audio 11.7.19 12.04pm and 12.24pm

 53   Audio 11.7.19 3.11pm

 54   Audio 10.7.19 2.05pm

 55   Audio 11.7.19 3.34pm

 56   Audio 10.7.19 2.21pm

 57   Audio 10.7.19 2.05pm – 2.08pm, 2.19pm and 2.22pm; R8 text message 14 February 2019 6.13pm

 58   Audio 10.7.19 2.23pm

 59   Audio 10.7.19 2.21pm

 60   A11

 61   Audio 10.7.19 1.01pm

 62   Audio 10.7.19 3.25pm

 63   Audio 10.7.19 12.57pm

 64   For example, Dawson v Qantas Airways Limited [2017] FWCFB 1712 at [48]

 65   [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ

 66   [2013] FWCFB 6191