DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Meredith
v
Chad Group Australia P/L
(U2019/11012)

Application for an unfair dismissal remedy.

[1] On 1 October 2019, Mr Paul Meredith (the Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Chad Group Australia Pty Ltd (Chad Group, the Respondent).

[2] Mr Meredith was dismissed from his employment on 11 September 2019 at the initiative of the employer for “serious misconduct”. The dismissal took effect immediately. Mr Meredith does not deny the incident occurred however he denies that the conduct was serious misconduct and submits that he was unfairly dismissed.

[3] This case could easily be described as a classic case of a smaller to medium sized employer getting their fingers burnt by attempting to deal with inappropriate workplace behaviours in an informal manner due to the close nature of the relationships between the family members who own and operate the business and its employees. It should be noted this is not an unusual occurrence in similar size operations where the business outgrows the inhouse employment relations capabilities. Chad Group’s complacency when it came to dealing with Mr Meredith’s outburst or what they describe as a “tolerance of Mr Meredith’s conduct” resulted not only in a young employee fearing for his safety but enabled the conduct to escalate into circumstances where other employees were subjected to unnecessary and unacceptable abuse. Whilst I have found that there was a valid reason for Mr Meredith’s dismissal for the reasons set out below, I have found the dismissal was procedurally unfair and harsh.

Background and case outline

[4] On 3 November 2016 after a period of casual employment Mr Meredith commenced in a permanent full-time role with Chad Group as a truckdriver, he also performed some warehouse duties. 1

[5] Chad Group is owned and operated by Mr Harry Chudasko (Harry), Mr David Chudasko (David) and Mr Adrian Chudasko (Adrian) who are Directors and co-owners. At the time of Mr Meredith’s dismissal David was his direct supervisor.

[6] Mr Meredith was employed by Mr Harry Chudasko after being approached by a local pastor seeking to assist Mr Meredith gain employment. Up until October 2019 it appears that Mr Meredith had what I would describe as a familiar relationship with the Chudasko family. Mr Meredith makes mention in his evidence of members from the Chudasko family using his property on weekends. Chad Group submissions describe Mr Meredith as “argumentative” and having a somewhat of a “grumpy attitude” that was “simply tolerated” in the workplace.

[7] Chad Group submit Mr Meredith had previously received a first and final warning for acting in a threatening manner and verbally abusing an employee who subsequently sought alternative employment. 2 This is a matter of contention as Mr Meredith submits he has never received a written warning for the conduct alleged.

[8] Chad Group submit on the day of his dismissal Mr Meredith acted disrespectfully and had exhibited undesirable behaviours including yelling offensively at David, continually ignoring repeated requests to leave the workplace and responding aggressively towards Mr Matthew Campbell, a sales employee. 3 Chad Group submit such conduct was inconsistent with the continuation of Mr Meredith’s employment as it constituted serious misconduct. They submit Mr Meredith had refused to carry out a lawful and reasonable instruction and caused a serious and imminent risk to the health and safety of David and Mr Campbell.4

[9] Mr Meredith submits during the course of his employment he was prevented from taking lunch breaks, bullied, victimised, humiliated and intimidated. He submits approximately ten of the Chad Group employees are related through marriage or blood relations making it unsafe to lodge complaints about the conduct of others. 5

[10] Mr Meredith submits the majority of the bullying he experienced was by David and that he had complained to David’s father Harry by email in April 2019. Mr Meredith says this resulted in the bullying becoming more frequent. 6

[11] It is not in contention that Mr Meredith suffered a workplace injury and was on WorkCover from 26 March 2019 until 20 May 2019 whereby it was recommended that he undertake light duties. He submits despite being provided with a Certificate of Capacity that limited him to light duties, Chad Group expected him to continue to perform duties he was not fit to perform and berated him for the speed at which he worked. 7

[12] On 9 September 2019 Chad Group hired a new employee. Mr Meredith believes the new employee was hired to replace him as there was no apparent need for the additional resource. 8

[13] Mr Meredith submits on the day he was dismissed he arrived at work at 6:15am and was deliberately locked out of the premises by another employee. Upon returning to the warehouse after making deliveries and collecting items from various suppliers he was approached by Mr Campbell who was inquiring about a missing item. 9 Mr Meredith was not aware of the item as he had not been provided with the relevant paperwork. Mr Meredith submits he attempted to take a lunch break at 3:15pm at which time David followed him into the break room, grabbed his bag and dropped it on the ground and told him to “get out”.10

[14] Mr Meredith submits he attempted to collect his personal effects and was followed around the warehouse by David who was swearing, belittling and using coarse and aggressive language towards him. 11 Mr Meredith submits he finally snapped after years of bullying and harassment and swore back at David.12 Mr Meredith submits he did not engage in serious misconduct and there was no valid reason for his dismissal.

Procedural Background

[15] The matter was conciliated on 9 January 2020 however was unable to be resolved. The matter was subsequently listed for hearing before me on 13 and 14 February 2020.

[16] Mr Meredith was represented by Dr James McConvill, Lawyer. Mr Meredith gave evidence on his own behalf. Mr John Ganas, Forensic Document Examiner was called to give expert witness evidence.

[17] Chad Group were represented by Mr Thomas Fuimaono-Page, Victorian Chamber of Commerce and Industry. The following witnesses gave evidence on behalf of Chad Group:

•  Mr Harry Chudasko, Director and co-owner,

•  Mr Adrian Chudasko, Director and co-owner,

•  Mr Matthew Campbell, Sales Representative,

•  Mr Brenton Piccin, former employee, Trade Counter Assistant,

•  Mr David Chudasko, Director and co-owner.

[18] Mr Meredith’s closing submissions were filed on 13 March 2020 and Chad Group closing submissions were filed on 6 March 2020.

Preliminary Matters

[19] Section 396 of the Act requires that I decide four matters before considering the merits of Mr Meredith’s application. I find Mr Meredith’s application was made within the 21-day period required by s.394(2). Mr Meredith is a person protected from unfair dismissal, he earned less than the high-income threshold, and had completed a period of employment with Chad Group that was at least the minimum employment period required by s.382. Chad Group is not a Small Business employer and Mr Meredith’s termination was not a case of redundancy. I am satisfied that Mr Meredith is a person protected from unfair dismissal.

[20] Therefore, the issue for me to determine is whether there was a valid reason for Mr Meredith’s dismissal.

The cases presented

Summary of evidence of Mr Meredith

[21] Mr Meredith was initially hired as a casual to drive a truck and undertake warehouse duties. 13 He became a full-time employee in November 2016 and his duties included delivering goods throughout Melbourne, metropolitan areas and country Victoria.14 He commenced work at 6:30am each day and reported directly to David.15

[22] Mr Meredith submits that David would blame him for all errors, scheduling and paperwork problems. 16 Mr Meredith says the scheduling for deliveries meant he would be traveling back and forth across Melbourne metropolitan areas rather than delivering to the same general area. His location was recorded through a tracking device in his vehicle. Despite this Mr Meredith says he would receive phone calls from Management and staff to check and see where he was and to pressure him to drive faster.17

Bullying, Harassment and Workplace Safety

[23] Mr Meredith says that during his employment he was called shaky by David due to his disability and after 3 weeks he asked David to stop and he did. 18 He also says he was mocked by David at the employee Christmas party for eating food and consequently he felt intimidated and limited himself to one skewer of meat.19

[24] In his witness statement Mr Meredith claims David likened him to a washing machine in front of other employees and on another occasion he threw a can of air freshener at him after accusing him of “stinking the office out”. 20

[25] Mr Meredith says an employee had threatened to “punch my fucking lights out” and was made to apologise after he made a complaint to management. Mr Meredith also says he tried to raise the issue of the harassment he says he was enduring with management however they did not act on his complaints or the situation would often get worse. 21

[26] Mr Meredith says he was made to use a forklift without a license and drive a truck with faulty breaks and in December of 2018 he had an accident whilst driving on the freeway. 22

[27] Mr Meredith also says that after sustaining a workplace injury in March 2019 he was provided with duties in the warehouse. He says he was told by Mr Campbell and David to lift heavy items and David made demeaning comments about his WorkCover claim in front of customers. 23

[28] Mr Meredith submitted an email as evidence that he had made a complaint about his treatment at Chad Group. The email had been sent by Mr Meredith to himself on the 17 April 2019 and then forwarded to Adrian on 18 April 2019. The email subject title was “work”. The email commenced with the following statement “Treatment as an employee at Chad Group on Wednesday 17/04/2019”. Mr Meredith details his modified duties and his upcoming medical appointments. Mr Meredith then appears to detail a complaint about the way “Matt” spoke to him in front of “3 Asian” customers he was asked to keep an eye on just in case they took extra stock without paying for it. Mr Meredith then goes on to state that he thinks Matt doesn’t believe he is injured. He then complains about being “grilled over trying to take a lunch break at 3.30pm” and how he never stops to collect food while he is in the truck like “Matt Does”. Mr Meredith states that he doesn’t understand why Matt is saying things to David about him whilst David is on holidays and signs of the email with “I just don’t get it! Is Matt trying to get me sack?(sic)”.  24

Denied lunch breaks

[29] Mr Meredith submits that he was frequently denied lunch breaks and that on one occasion in October 2018 he had commenced employment at 6:30am and at 3:00pm he was asked to do an urgent delivery. 25 Mr Meredith’s oral evidence was that at 2:30pm that day he had been approached by Mr Piccin to “do an urgent delivery”. In response Mr Meredith told Mr Piccin there were two other people who could drive the truck and that he was going to have lunch and if it was so important he could have contacted him and because they had a tracking device on the truck he was of the view they should have known his whereabouts. He says Mr Piccin yelled at him and belittled him.26

[30] In cross-examination Mr Meredith’s evidence was that he didn’t believe the job was urgent and that Mr Piccin had forgotten about the job which wasn’t a Chad Group job, it was a private job for Harry and David. 27 Mr Meredith appeared to take issue with being requested to do work that was not related to external customers. His evidence was that because Mr Piccin had asked him to go out again this had the effect of denying him a lunch break, he therefore refused to do the delivery.28 In cross examination Mr Meredith says he did go to lunch and that Mr Piccin “had a go” at him in the lunchroom”.29

[31] In his witness statement Mr Meredith submits he attended a meeting with Harry, Adrian and Mr Piccin to discuss the issue of meal breaks the following day. 30 In cross-examination Mr Meredith’s evidence was that the meeting was about the denial of two meal breaks that he was entitled to. Mr Meredith says during the meeting Mr Piccin had told him he wasn’t to use the toilets at the workplace and when Adrian agreed with Mr Meredith that he was to use the worksite toilets Mr Piccin stormed out of the meeting. Mr Meredith denies the meeting was to discuss the threats he was reported to have made to Mr Piccin. It was put to Mr Meredith that Mr Piccin left the meeting because Mr Meredith had said words to the effect that “back in the day, after a hockey game, he would have punched Mr Piccin in the face”. Mr Meredith denies that this was the case.31

[32] Mr Meredith’s evidence is that at no stage following the October 2018 meeting was he provided with the warning letter Chad Group relies on. 32 Mr Meredith says the warning letter was a “false, misleading document that he had never seen”33 and that the letter was fraudulently signed by someone else.34

Dismissal 11 September 2019

[33] Mr Meredith’s evidence is he arrived at work on 11 September 2019 at 6:15am. Later that day during a delivery to a customer he was unable to locate a particular item on the truck. 35 During the next delivery he located the missing item, he called the office at 2:03pm36 and spoke to “Grace” to advise he was returning to the customer to deliver the missing item.37

[34] Mr Meredith’s oral evidence is that he returned to the warehouse at around 3:00pm and commenced unstrapping the load on the truck 38. Mr Meredith says Mr Campbell approached him yelling “where are the fucking arches” whilst throwing his arms in the air and then stormed back inside.39 He says he kept unstrapping the truck, then went inside placing his paperwork in the pigeonhole. Mr Meredith’s evidence is that he told David, Adrian and Harry who were all in the reception area that he did not deserve to be spoken to that way. He says David dismissed his comments and proceeded to question him as to why Mr Campbell had to go and get the arches. Mr Meredith says he explained he had not been provided with the paperwork and didn’t know about the arches. He then explained he hadn’t had lunch and went to the lunchroom.

[35] Mr Meredith says David stormed into the lunchroom and said “You can go home and think about this”, or words to that effect before grabbing his bag and dropping it in a forceful way on the ground. Mr Meredith’s evidence is that he responded with “Righto, whatever”. David then started screaming “Get out, get out, get out”, Mr Meredith says he grabbed his bag and coffee cup and walked out the front of the building and rang his wife. 40

[36] Mr Meredith’s evidence is that he told his wife he had been “sacked” and she wanted him to go back inside and collect her umbrella which was normally kept in the lunch room. He says David followed him out into the factory repeatedly saying “Get out, get out, get out”. Mr Meredith says he replied by stating repeatedly and “louder and louder” that he was getting his umbrella. He noticed the umbrella in the back of the truck whilst David was still “screaming” for him to “get out”. Mr Meredith says he noticed Mr Campbell laughing at him. Mr Meredith’s evidence was that because David had yelled for him to get out so many times he believed his job was “finished”, he turned to Mr Campbell and told him “you can go fuck yourself” and then told David “you can get fucked too”. Mr Meredith says he walked out and had not spoken to David since. 41

Summary of evidence of Mr John Ganas, Forensic Document Examiner

[37] Mr John Ganas is a principal examiner of a private company providing forensic document examination and digital examination services. Mr Ganas received a request from Mr Meredith’s representative for him to examine a signature on the warning letter relied on in evidence by Chad Group. In his report Mr Ganas submits that he compared the signature on the non-original version of the warning letter to documents bearing sample signatures of Mr Meredith’s to determine whether or not any nexus existed between them by authorship. 42 Mr Ganas reviewed some 28 documents bearing Mr Meredith’s signature. In his report Mr Ganas submits that the examination was limited by the non-original nature of the questioned document and a number of the sample documents. Mr Ganas made two assumptions being that all non-original comparison documents examined were true and accurate representations of their original source and that all sample signatures appearing on the documents were genuine and naturally written signatures of Mr Meredith.43

[38] Mr Ganas’ examination resulted in two main propositions, the first being that the questioned signature (the signature on the warning letter) was not genuine and was by a writer other than Mr Meredith and the second being that the signature was performed by Mr Meredith and disguised. Mr Ganas formed the view that his first proposition was the most likely case.

[39] During cross-examination Mr Ganas made a number of concessions including that it was possible that there were other reasons that would explain the dissimilarities. 44 Mr Ganas’ oral evidence is that an individual’s signature may vary from day to day and variations can be caused by the way you grip the pen, how tired someone is, stress or anxiety and many other factors.45 Mr Ganas’ evidence is that he did not believe the internal inconsistencies within the signatures were stress related.

[40] Mr Ganas’ evidence is that he had formed his view by assessing a photocopy of the warning letter and an approximate mix of fifty percent original documents and fifty percent photocopied documents all provided by the applicant. Mr Ganas’ evidence is that the instructions received from Mr Meredith’s representative did not include any information about Mr Meredith’s medical condition.

Summary of evidence of Mr Brenton Piccin

[41] Mr Piccin was a former employee who was employed as a trade counter assistant with Chad Group from February 2017 to February 2019.

[42] Mr Piccin’s evidence is that on 12 October 2018 Mr Meredith was expected back at the factory between 1:00pm and 2:00pm however he had arrived around 2:30pm-2:40pm. Mr Piccin says it had been arranged for Mr Meredith to pick up tiles from a nearby location. When Mr Meredith returned he asked him to pick up the tiles before taking his lunch break as it was a time critical job. Mr Piccin’s evidence was that Mr Meredith refused, telling Mr Piccin to do it himself in a “bullish manner”. Mr Piccin says he tried to explain to Mr Meredith why the job couldn’t wait, however he didn’t care. Mr Piccin says Mr Meredith was often late and he told Mr Meredith if he pushed himself a little bit harder during the day this wouldn’t be an issue. 46

[43] Mr Piccin’s evidence is that Mr Meredith started to “shout and scream at him” saying “fuck of you smart arse cunt” and proceeded to call him a “fucking cunt”. Mr Piccin says he threatened to record Mr Meredith on his phone before he stormed off yelling that he was going to see Harry. 47

[44] Mr Piccin’s evidence is that Mr Meredith had made a number of violent threats towards him and had previously called him “arrogant, smartarse, dumb arse, a cunt,” and had threatened to take him to the “Belangelo State Forest and give him the Ivan Milat treatment”. 48 Mr Piccin’s evidence is that:

“This happened multiple times, so it became normal and I didn’t bother raising it with management. Given he kept doing this, though, overtime I began to feel a little unsafe around him.” 49

[45] Mr Piccin’s evidence is that after the incident on 12 October 2018 when Mr Meredith had threatened to punch him, he detailed his concerns in a complaint and emailed it to Harry, Adrian and David (who was on leave at the time). 50 Chad Group management provided a written response as to how they intended to ensure his safety at work. His evidence was that after receiving the complaint Adrian and Harry organised a mediation between Mr Meredith and himself. Mr Piccin says Mr Meredith did not show any signs of remorse in the meeting and instead made a comment that “back in the day after a hockey game he would have punched me in the face right away”. 51

[46] Mr Piccin’s evidence is that he was aware that when David returned from leave he had issued Mr Meredith with a warning and he felt that Mr Meredith blamed him for receiving the warning. Mr Piccin also gave evidence that due to Mr Meredith’s violent outbursts he did everything he could to avoid inflaming his temper. 52 Mr Piccin’s evidence is that he had previously been physically manhandled by Mr Meredith on more than one occasion. Mr Piccin describes Mr Meredith as having a bad temper and attitude and says he got away with his outbursts because the employees mostly just put up with it.

[47] In response to my questions Mr Piccin gave the following evidence:

“I knew that they’d given him a warning, but I was fearful of the fact that a warning might not be enough, that he could snap, he could hit me with the truck. We were working around machinery. I was you know---” 53

COMMISSIONER: But don’t management have practices in place to protect you from that kind of thing if you’d raised it with management?

MR PICCIN: Yes so management -originally, the first time, management separated me for a while ‘til things cooled down, and then put me back into normal operation. There was multiple incidences after that, but it was a similar sort of thing, just give him some space, back off, don’t work too closely with him, but then after this one when he snapped so quickly and was so volatile and out of control, I decided that even if management do all- take all the proper steps, they give him warnings and all that sort of stuff, I was concerned that all it would take is-like, we were working in a concrete factory. There’s stairs, there’s- if he just takes a swing at me I could, you know, hit my head on the concrete, anything like that. I just didn’t want to work in an environment where there could potentially be that sort of snap reaction, and there’s nothing much that management can do about something like that without getting rid of him.” 54

[48] In cross-examination Mr Piccin’s gave the following evidence:

“I felt that management couldn’t assist because without an instant dismissal I would still have to work with Paul, and given how quickly he snapped and how enraged he became in a short space of time, I felt that it didn’t make a difference whether or not there were camera’s in place if I was on the ground with my head cracked open.” 55

[49] Mr Piccin’s evidence is that he became aware that Mr Meredith had been given a final warning the day after it had been issued by David. 56 He also gave evidence that due to Mr Meredith’s conduct he sought employment elsewhere. Mr Piccin stated that he left the job due to Mr Meredith’s behaviour and if it wasn’t for Mr Meredith’s conduct he would still be working there.57 He says once the mediation failed he spoke with his wife and decided he couldn’t continue to work with Mr Meredith.58

[50] Mr Piccin gave evidence that whilst other employees sometimes swore in the workplace it was not targeted towards other employees. 59

Summary of evidence of Mr Campbell

[51] Mr Campbell has been an employee of Chad Group since March 2018. Mr Campbell says since his commencement Mr Meredith made him feel extremely uncomfortable and unwelcome at work. 60 Mr Campbell says he felt very uncomfortable being in the lunch room with Mr Meredith and to avoid this he would eat his lunch in his car.61 His evidence was that he had never witnessed anyone bullying or mistreating Mr Meredith, instead it was Mr Meredith who spoke “really rudely and or aggressively or threateningly at others including Mr Campbell.62

[52] Mr Campbell gave evidence that after Mr Meredith’s employment was terminated he found an unsigned copy of the first and final warning letter in his pigeonhole when he was cleaning out Mr Meredith’s belongings. Mr Campbell says he gave those documents to David approximately three weeks after Mr Meredith’s employment ceased. 63

[53] Mr Campbell also gave evidence that on 11 September 2019 Mr Meredith was visibly agitated when he returned to the factory. Mr Campbell says he asked Mr Meredith if he had picked up “the arch” to which Mr Meredith responded aggressively. Mr Campbell’s evidence was that he had realised that he had not provided Mr Meredith with the required paperwork and therefore he was going to pick up the materials himself. Mr Campbell’s evidence was that he had left the factory and returned moments later to collect his phone, when Mr Meredith said to him “and you can go fuck yourself”. Mr Campbell denies swearing at Mr Meredith. Mr Campbell says that David intervened as Mr Meredith was becoming “very aggressive” and told him to “get out of here”. 64

Summary of evidence of Mr David Chudasko

[54] Mr David Chudasko has been a Director and co-owner of Chad Group since July 2017. David gave evidence that Mr Meredith was prone to aggressive outbursts from time to time and he generally put up with his grumpy attitude and argumentative nature because “generally he turned up every day on time, got on with the job and spent most of his time out of the factory”. 65

[55] David’s evidence is that they had had a couple of complaints from customers about Mr Meredith’s behaviour and one of those complaints resulted in a negative “google” review. The evidence provided indicates that this incident occurred four years prior to the dismissal and does not identify the employee. David says Mr Meredith was spoken to about each of those complaints. 66

[56] David’s evidence is that in late February or early March 2017 he had witnessed Mr Meredith yelling at Mr Piccin and had counselled Mr Meredith because he had made threats to punch Mr Piccin in the face. 67 David says he attempted to mediate the situation however he decided to separate Mr Meredith and Mr Piccin and they were no longer allowed to do deliveries together.68

[57] David gave evidence that on 13 October 2018 (whilst on leave) he received an email from Mr Piccin alleging that during a conversation Mr Meredith had shouted at Mr Piccin “Fuck off you smart-arse cunt…you fucking cunt.” 69 David’s evidence was that his brother Adrian had spoken to Mr Meredith because Mr Meredith had already approached him and told him he was so angry he was close to punching Mr Piccin in the head.70 David says that the complaint was investigated and Mr Meredith was issued with a first and final warning which was confirmed in writing on 17 October 2018.71 His evidence was that he was sitting beside Mr Meredith when he signed the warning letter.72

[58] David’s evidence is that on 11 September 2019 Mr Meredith returned to the factory later than expected and had not called the office to let them know he would be late. On his return Mr Campbell approached him about some missing arches. David’s evidence is that Mr Campbell did not swear at Mr Meredith. His evidence is that Mr Meredith did not call the office and speak to Grace as he claims to have because she had not been at work that day. 73

[59] David says he spoke to Mr Meredith and explained he needed to communicate what was going on and suggested he needed to sort his performance out however Mr Meredith responded stating “whatever. Righto” in what he described as a “blasé manner”. David says he told Mr Meredith to go home and rethink his position with Chad Group and come back the next day with his “joy jacket on and start over”. David says Mr Meredith sounded agitated and appeared angry at this time. 74 David says it was at this point he told Mr Meredith to collect his “stuff and go home”. His evidence is it was at this point Mr Meredith packed up and walked out to the factory from the kitchen, he then approached Mr Campbell and told him “Fuck off. Go Fuck Yourself”. David’s evidence is that he then told Mr Meredith to “Get out of here. Go home”. David says Mr Meredith didn’t leave immediately as he was looking for his umbrella. He says he tried to find Mr Meredith’s umbrella and when he returned he could hear Mr Meredith screaming down the phone explaining to his wife what had happened. David says he tried to calm Mr Meredith down and told him to “call it a day”.75

[60] David’s evidence is that whilst outside in the driveway Mr Meredith aggressively and loudly shouted “You can go and get fucked. Fuck off. Go fuck yourself.” David says he then told Mr Meredith that he was “done” and that he couldn’t speak to him or anyone else the way he had. David’s evidence is that apart from swearing at him and at Mr Campbell, he had sworn at Mr Piccin in a similar fashion less than 12 months prior.  76

[61] In response to the allegations of bullying David’s evidence is that when he would raise issues with Mr Meredith about mistakes he had made Mr Meredith would never accept his own mistakes, instead he would blame others and would respond aggressively when questioned. 77

[62] David denies ever encouraging Mr Meredith to speed and says that employees have to pay their own speeding fines as a way of discouraging them from speeding in company vehicles. 78

[63] David also contends that meal breaks were never an issue in the workplace but rather they were an issue with Mr Meredith. David’s evidence is that Mr Meredith took a lunch bag with him in his truck and was able to take his meal breaks and it was up to him to keep track of time and ensure he had a break however he chose not to do so instead choosing to have his lunch back at Chad Group. 79

[64] David’s evidence is that he does recall a work colleague calling Mr Meredith shaky and he thought it was a nickname however he denies ever using the term himself. 80 David does not deny speaking to Mr Meredith at the Christmas party about how many shashliks he had taken, he says Mr Meredith had loaded his plate and he was just making sure everyone got a fair share.81

[65] David does not deny throwing the can of air freshener after Mr Meredith had used the toilet however he says he threw it to him and not at him. He says Mr Meredith must have been caught by surprise because he didn’t catch it. 82

[66] David also gave evidence that Mr Meredith had not made complaints about being bullied or harassed with any of the management at Chad Group. His evidence is that Mr Meredith was always quick to seek out Harry after a “blow-up” so as to explain his version of what had happened. He also submits that Mr Meredith never raised any safety issues and he did not report any issues with the truck’s brakes although he had a responsibility to do so and he had been informed as such. He submits it was Mr Campbell that raised the concerns about the brakes on the truck and ultimately dealt with it. 83

Summary of evidence of Mr Harry Chudasko

[67] Mr Harry Chudasko is Director and co-owner of Chad Group and the father of Adrian and David. Harry employed Mr Meredith after a pastor of the church approached him and expressed a need for Mr Meredith to obtain some employment and he says in an act of compassion he offered Mr Meredith a job. 84

[68] Whilst giving his oral evidence Harry, at times, seemed to be confused between the October 2018 incident involving Mr Piccin and the 11 September 2019 involving Mr Campbell that ultimately led to Mr Meredith’s dismissal. I attribute this in part to the way the questions were put to him during cross-examination.

[69] Harry gave evidence that during late October 2018 Mr Meredith approached him about a matter involving Mr Piccin and he was distressed at the time. This was the first time he had heard about the incident. His evidence was that he put his arm around Mr Meredith, consoled him and told him he would investigate the issue and see if he could do anything to help.  85 His oral evidence was that when he looked into the matter he became aware that Mr Meredith had allegations of bullying against him.86

[70] Harry’s evidence is that he was present mainly as an observer in a meeting conducted by Adrian involving the complaint made by Mr Piccin against Mr Meredith. Harry’s evidence is that during the meeting the allegations against Mr Meredith were confirmed and after discussing the matter with David, Mr Meredith was issued with a warning. 87 His oral evidence was the he consulted with his son’s wife who no longer worked with them however she had provided advice on this matter being that Mr Meredith should be issued with a final warning.

[71] Harry’s evidence is that whenever Mr Meredith raised issues with him, he always listened sympathetically and supported him. Harry also gave evidence that Mr Meredith had come to see him after he was issued with the warning by David as he thought he’d felt “hard done by”. His evidence is that he told Mr Meredith that the behaviour couldn’t be tolerated, and the warning stood. 88

[72] Harry’s evidence is that he had never witnessed Mr Meredith being bullied and had never received any complaints from Mr Meredith of that nature. His oral evidence was that on 11 September 2019 he was not involved in the incident that occurred with David and Mr Meredith. Harry’s evidence was that he heard a commotion and yelling however he did not hear what was actually said.

Summary of evidence of Mr Adrian Chudasko

[73] Mr Adrian Chudasko is a Director and co-owner of Chad Group. Adrian’s evidence is that on 12 October 2018 he dealt with an incident in which Mr Meredith had told him he was going to punch Mr Piccin’s lights out because Mr Piccin had asked him to do an urgent job and that he was to take his lunch break after the pick up had be completed. Adrian’s evidence is that he had to calm Mr Meredith down and send him home for the rest of the day. 89

[74] Adrian’s evidence is that he investigated what had occurred and found that Mr Meredith’s refusal to have his lunch breaks whilst on deliveries and his insistence on returning to the Chad Group warehouse for lunch was causing logistical issues. 90

[75] On 13 October 2018 Adrian received an email from Mr Piccin detailing a formal complaint against Mr Meredith. Adrian gave evidence that he attempted to mediate the issue of Mr Meredith making direct threats to Mr Piccin and that Mr Piccin felt for his safety. 91 Harry was present at the mediation. Mr Meredith made some comments in the mediation that upset Mr Piccin, being that “back in the day after a hockey game he would have just punched Brenton in the face”. His evidence is that he believed Mr Meredith was trying to explain he had since matured so he would not likely punch Mr Piccin. Adrian’s evidence is that after some discussion with Mr Meredith it was noted that he did threaten Mr Piccin however he did seem remorseful.92

[76] During the hearing Adrian was asked to describe the culture at Chad Group. In response he gave the following evidence:

“…It’s a good, happy environment from, yes day to day. That’s the current culture and that is what it has always been. Since this has occurred I’ve become aware of what had happened and so the bottom line is, is Brenton felt threatened for his life; so I had a grown man literally crying on the phone when I was trying to get him to come back to work and say, “I’m dealing with this”. David was away so I was dealing with the matter in his absence. When Brenton stormed out of that meeting because he didn’t like the comment about the hockey and punching, et cetera, he still felt for his life. He literally did not want to walk down the laneway of the factory; he felt potentially that Paul would mow him over in the truck. That’s how he felt. To me I was, like-you know, I think- I thought maybe that was a bit over the top, but that’s how he felt and I had to deal with that and take his accusations, his concerns, seriously. He was concerned for his life. I was talking to him on the phone saying, “Look, Brenton, I’ve spoken to Paul. We’re trying to work through it. We’ve tried to do the mediation. I would love for you to come back and I’ll ensure there will not be an incident at work”, but he seriously felt his life was in threat. That was Brenton, so he just did not feel comfortable.” 93

[77] Adrian’s evidence is that on 17 October 2018 he emailed 94 David regarding lunch breaks requesting that he communicate with his team the importance of scheduling lunch breaks into their operations.95

[78] Adrian gave evidence that he has never witnessed Mr Meredith making complaints about being bullied or harassed. He did however receive what he refers to in his evidence as a “random email” from Mr Meredith on 18 April 2019. Adrian’s evidence is that he found the email strange and thought it had been sent by accident. 96 As Mr Meredith did not report directly to him, he forwarded the email to David and he was not sure what had happened from there.97

[79] Adrian’s evidence is that he was not directly involved in the incident that occurred on 11 September 2019. He says he was in the retail area and the incident had occurred in the factory, 98 however his evidence was that he heard a commotion and heard Mr Meredith yelling at David to “get fucked” and he also heard David telling Mr Meredith to leave.

Consideration

Harsh, Unjust Unreasonable

[80] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd. 99 McHugh and Gummow JJ explained 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.” 100

[81] I will now consider each of the matters set out in s.387 of the Act.

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

[82] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 101 The reason for the dismissal should be “sound, defensible and well founded”102 and should not be “capricious, fanciful, spiteful or prejudiced.”103

[83] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 104 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).¹⁰⁵

[84] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.¹⁰⁶ It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 107

[85] Chad Group’s decision to terminate Mr Meredith’s employment was on the basis that he had engaged in misconduct by speaking aggressively to and abusing Mr Campbell, specifically telling him “go fuck yourself” and for telling David, his Manager “you can go and get fucked. Fuck off. Go fuck yourself”. Further Chad Group submit Mr Meredith failed to follow a lawful and reasonable direction by not leaving the warehouse when he was directed to do so. They further submit that Mr Meredith had previously been issued with a first and final warning regarding conduct of a similar nature and therefore the dismissal was not harsh.

[86] Mr Meredith does not deny that the conduct occurred. His evidence supports a finding that he did in fact yell said expletives at Mr Campbell and David, and he did not leave the premises when he was expressly told to do so. During the hearing Mr Meredith submitted that he only became abusive after he thought he had been terminated. Regardless, I have formed the view his conduct would have led to a dismissal had he not already been dismissed.

[87] Mr Meredith presented as a highly sensitive person who was deeply affected by subtleties within his work environment. During proceedings Mr Meredith attempted to justify the conduct that led to the dismissal submitting inter alia that it was as a result of enduring ongoing bulling and harassment during his employment, being denied lunch breaks, having to drive unsafe vehicles and made to perform heavy lifting whilst on light duties. Mr Meredith also submitted had he not been dismissed he would have stayed employed with Chad Group until he was due to retire. I found his submission to be inconsistent with the notion that the environment he had been working in had become unbearable to the point that he “finally snapped”.

[88] Mr Meredith was employed for a period of four years and provides a number of allegations he says justifies the conduct that led to his dismissal on 11 September 2019. A number of those allegations made by Mr Meredith were lacking in specific detail or evidence to support a finding that it was conduct that Mr Meredith can rely on in support of his justification for the conduct which led to his dismissal. I deal with some of the allegations in more detail below in the context of whether Mr Meredith’s conduct was acceptable conduct given the nature of the workplace and was the dismissal harsh unjust or unreasonable.

[89] One of the allegations relied on by Mr Meredith involves an altercation with Mr Piccin which resulted in a mediation being conducted by Adrian with Harry present. There was much contention about the purpose of the meeting and whether or not the meeting resulted in a first and final warning being issued to Mr Meredith. Mr Meredith asserts that the mediation took place because Mr Piccin had denied him a lunch break. Mr Meredith had complained to Harry about the incident involving Mr Piccin and Harry did tell him that he would investigate it and find out if he could do anything to help Mr Meredith. 108 Whereas Mr Piccin says he had submitted a complaint the next day in writing which prompted Adrian to set up the meeting. During the meeting both employee’s issues were discussed. There is no evidence before me that suggests either prior to or during the meeting Mr Meredith was informed that the meeting was being conducted solely on the basis of his conduct towards Mr Piccin. It is plausible that Mr Meredith thought the meeting was the outcome of his discussion with Harry. However, I am satisfied that the mediation meeting did take place and Mr Meredith’s conduct amongst other things was discussed during that meeting.

[90] Whilst I accept Mr Meredith had issues with taking a lunch break, I am not satisfied those issues arose from Chad Group denying him the opportunity to have lunch but rather Mr Meredith’s insistence on having lunch back at the Chad Group site. There is no conclusive evidence before me that Mr Meredith was specifically instructed by Chad Group management that he couldn’t have lunch breaks. In any case in his evidence Mr Meredith only refers to two instances over a four year period. The issue of Mr Piccin asking him if he could do an urgent delivery even though Mr Meredith hadn’t at that stage had lunch was not intended to deny Mr Meredith of his right to a lunch break, the business is not a large organisation and it is not uncommon for instances of a similar nature to occur from time to time.

[91] As to the circumstances of whether Mr Meredith was being bullied, and that the bullying conduct provides an explanation for his conduct on 11 September 2019, I first deal with the circumstance that led to the October 2018 mediation meeting. On this issue I have preferred the evidence of Mr Piccin and have formed the view that Mr Meredith seems to be oblivious to his own shortcomings on said issue. I found Mr Piccin to be a credible witness and he gave compelling evidence which was consistent with the email he sent to the Chad Group management complaining about the threatening conduct directed toward him by Mr Meredith. Mr Piccin’s version of events were also supported by a subsequent email sent by Adrian to Mr Piccin after a mediation meeting. Mr Piccin felt so threatened by Mr Meredith and his outbursts and Chad Groups inability to guarantee his safety that he sought alternative employment. This is an extreme outcome for which Mr Meredith along with Chad Group are responsible.

[92] I also make the following observation. Mr Piccin, Mr Campbell and David have all given evidence that Mr Meredith is a difficult person to deal with and that he made others in the workplace feel uncomfortable. However, management at Chad Group did not set parameters for or take reasonable action to manage what was unacceptable conduct in the workplace. I have formed this view on the basis of evidence given by David, being that they generally tolerated such conduct. On the face of the evidence because of Mr Meredith’s temperament, making him somewhat difficult to deal with, management generally looked the other way when it came to his conduct. However, more telling was the email from Adrian to Mr Piccin and Adrian’s evidence during the hearing.

[93] During the hearing Adrian gave evidence that he had a “grown man literally crying on the phone” (Mr Piccin) and after the mediation he had called him trying to convince him to come back to work but “he still felt for his life”. Adrian sent an email to Mr Piccin advising that he had sought to resolve the matter and that they considered the matter dealt with and that Mr Meredith would pose no further risk to Mr Piccin’s health and safety. Adrian with the benefit of having some advice from his wife who had some human resources experience was aware that he had to take some form of action, however Adrian remained of the view that Mr Piccin’s response was “a bit over the top”. Consequently, I have formed the view that Adrian was motivated to act because he had recognised the possible risks to the business that could arise from the complaint made by Mr Piccin ahead of the welfare of its employees. Adrian described Chad Group as having “good happy environment from day to day”. Mr Campbell and Mr Piccin did not feel that way about working with Mr Meredith, nor did Mr Meredith feel that way about working for Chad Group. In the absence of adequate polices and management practices “a good happy environment” will not in itself mitigate all of Chad Groups employee relations risks as it expands beyond a family business.

[94] In concluding the issue of the mediation in October 2018, I am satisfied that Mr Meredith did attend a mediation meeting conducted by Adrian and in the presence of Harry and during that meeting, although he was unclear as to the purpose of the meeting, he was counselled about his conduct towards Mr Piccin.

[95] On 18 April 2019 Mr Meredith forwarded an email to Adrian that had previously been sent by Mr Meredith to himself. The email records a number of matters including his certificate of capacity and his medical appointments. His email then outlines views he had formed about Mr Campbells opinion of his workplace injury and that Mr Campbell had entered the warehouse “screaming out Paul Ray” whilst Mr Meredith was keeping “an eye on the 3 Asian people customers, who was loading 5 bags of base coat because Ostar stated they may take a few extra bags and not pay for them”. Mr Meredith also includes a grievance about Mr Campbell’s by stating that it is not true that “Matt is busting his guts”. Mr Meredith states that he never stops and collects food while in the truck and he has been grilled over taking a lunch break at 3:30pm and he has been questioned over taking a toilet break. Mr Meredith concludes the email by stating he doesn’t understand why Mr Campbell is saying things to David whilst he is on holidays and that he thinks Mr Campbell is trying to get him “sacked”. It is clear to me the reference to the 3:30pm lunch break and the toilet issue are records related to the incident involving Mr Piccin in October 2018 as Mr Meredith did not provide any evidence to the contrary. It is evident that Mr Meredith still harboured some animosity towards Chad Group over the incident involving Mr Piccin. This is further supported by Harry’s evidence that he had spoken with Mr Meredith and he was not happy about the outcome of the meeting dealing with the incident.

[96] Mr Meredith relies on the email as evidence he was being bullied and had raised concerns with management about being bullied. Whilst it is accepted that Mr Meredith sent the email to Adrian, the email in and of itself does not set out any bullying related matters. Rather it is a chronology of events and Mr Meredith’s perception of what others may or may not think. In any case consistent with their management of Mr Meredith, Chad Group chose not to follow up or make any inquiries as to why they had received the email from Mr Meredith.

[97] Mr Meredith says he felt humiliated at a Chad Group event when David had spoken to him about the amount of food he had on his plate. Mr Meredith cites this as one of the bullying factors he relies on in justifying his conduct that led to his dismissal. I am not persuaded that David’s request for Mr Meredith to not take more than his share of food is an act of bulling.

[98] Mr Meredith says he was likened to a washing machine, upon considering the evidence I am also not persuaded that Mr Meredith was referred to as a washing machine. I found the version of events presented by David to be plausible.

[99] With regards to Mr Meredith’s assertion that he was forced to drive an unsafe vehicle, he had an accident in a work vehicle, was told to drive faster and drive a forklift unlicensed. Mr Campbell’s and David’s evidence is that it was Mr Meredith responsibility to report any vehicle issues and the fact that he hadn’t was uncontested. I accept that it was Mr Meredith’s responsibility to do so as he drove the vehicle on a day to day basis and if there were any faults he should have documented and reported them and he didn’t. In any case when Mr Campbell became aware of the vehicle issues he himself took the vehicle and had it repaired. Further I do not consider that Mr Meredith being called by Chad Group employees whilst out on deliveries for various reasons including to ask is whereabouts regardless of the GPS tracking device being installed in the vehicle is unreasonable considering the day to day operations at Chad Group. I do not consider this conduct to be either bullying or a reason that supports a justification of Mr Meredith’s actions that led to his dismissal. Further there is no evidence before me that would satisfy me that Mr Meredith was instructed to “drive faster” or that the accident he refers to was a fault of Chad Group or a faulty vehicle. There is also no evidence before me that would satisfy me that Mr Meredith was at any time instructed to drive a forklift unlicensed. If Mr Meredith had agreed to drive a forklift unlicensed then he would himself be at fault. I note there is no evidence that Mr Meredith has at any time chosen to raise these safety concerns until after his dismissal and there is no evidence before me to suggest he had raised those issues with anyone at Chad Group or any authority prior to his dismissal.

[100] Mr Meredith alleges that David threw a can of air freshener at him after he had used the toilet. David does not deny throwing the can of air freshener however he claims he threw it to David and not at him and that Mr Meredith was startled and dropped the can. On this matter I prefer the evidence of Mr Meredith, I am not persuaded that David had thrown a can of air freshener to Mr Meredith and not at him after he used the toilet. However, in the context of the evidence, whilst I don’t condone the way David dealt with the issue of his requests for Mr Meredith to either turn the toilet fan on or close the door after he had used the toilet, the act in and off itself does not justify Mr Meredith’s outburst some five months later.

[101] It is not in dispute that Mr Meredith had been referred to in the workplace as shaky. David’s evidence is that after hearing Mr Meredith being called shaky by a former work colleague he thought it was a nickname however he had himself at no stage referred to Mr Meredith in those terms. Mr Meredith’s evidence was that after he requested that David stopped calling him shaky, he did cease. If David did call Mr Meredith shaky, David ceasing after having it bought to his attention that Mr Meredith does not like be referred to as shaky is inconsistent with bullying type conduct.

[102] The warning letter itself is a contested issue. Mr Meredith called for expert evidence to be presented by Mr Ganas, a Forensic Document Examiner. Mr Ganas submitted a Forensic Signature Examination Report he had produced under the instruction of Mr Meredith’s representative.

[103] Chad Group objected to the evidence on a number of grounds and submits that it ought be deemed inadmissible. They submit that the late filing of the evidence would be highly prejudicial to Chad Group. I have considered the submission of the parties and the evidence of Mr Ganas. I have formed the view that the investigation conducted and report produced by Mr Ganas has a number of short comings and I have afforded it little to no weight for the following reasons:

a) The Respondent in this matter had no opportunity to contribute to the materials reviewed by the examiner, that being all of the documents reviewed by Mr Ganas were provided by the Applicant,

b) Whilst a small number of documents were undated the majority of the documents were produced between 1994 and 2012, this may have some significance in that it is not evident in these proceeding as to when Mr Meredith developed his medical condition,

c) Mr Meredith’s medical condition was not disclosed to the examiner prior to conducting the examination and in giving his evidence Mr Ganas did not have any knowledge of what Mr Meredith’s medical condition was and therefore any view he had formed as to how Mr Meredith’s medical condition would or could have affected his findings was an uninformed view.

d) A significant number of the documents examined were not original documents which Mr Ganas rightly concedes presents a number of limitations to his findings

[104] I have taken into consideration my earlier findings and I am satisfied that that Adrian did prepare a warning letter to be issued to Mr Meredith and I am satisfied that he did provide the letter to David for his attention. There were three versions of the letters presented during the hearing, one with Adrian’s signoff, one with David’s and one signed by both David and Mr Meredith.

[105] There were some notable inconsistencies in the evidence of Mr Campbell and David regarding the warning letter itself. Mr Campbell’s evidence was that he found the signed letter in Mr Meredith’s pigeon hole three weeks after his employment ceased and he provided the documents to David around that time. David’s evidence was that he was provided with the letter shortly before the hearing. Regardless, on the matter of the warning being issued to Mr Meredith I found Harry’s evidence to be persuasive. I am satisfied when considering the evidence overall that upon returning from leave David met with Mr Meredith and issued him with a warning regarding his conduct towards Mr Piccin. If I am mistaken on the issuing of the warning, the evidence supports that at the very least Mr Meredith was verbally counselled during the mediation meeting for his conduct towards Mr Piccin. The warning was however issued close to twelve months prior to the dismissal and given my earlier findings, being that Mr Meredith’s conduct was permitted to continue without further management I contribute little weight to the warning in my findings.

[106] In regards to the dismissal, as stated earlier it is not contested that Mr Meredith acted in an aggressive manner and used abusive language towards Mr Campbell and David. It is also not in contention that Mr Meredith did not have the arches because he had not been provided with the paperwork for the order to collect them. There was contention as to whether Mr Meredith had called the office or not to let them know as to his whereabouts. There is evidence that Mr Meredith had called the office however this does not change the circumstances of what occurred when Mr Meredith returned to the factory. Mr Meredith’s evidence is he tried to discuss and explain to David in front of Harry and Adrian that he had not been provided with the paperwork required to collect the products Mr Campbell was upset about. He could not collect items in the absence of paperwork. 109 I prefer the evidence of Harry and Adrian on this matter being that neither of them were in the proximity of the events that took place on the factory floor when the incident on 11 September 2019 occurred although they had both heard a commotion and yelling.

[107] I am satisfied that David followed Mr Meredith into the lunch room and yelled at him “go home and think about your job” then told him on a number of occasions to “get out”. David does not dispute that he told Mr Meredith to leave the premises. David gave evidence that he had basically had enough of Mr Meredith. It is not a contested fact that David had followed Mr Meredith around the factory telling him to leave.

[108] I have taken into consideration the evidence of Harry and Adrian that they heard a commotion out in the factory. Given that they both heard a “commotion” taking place out on the factory floor, I am satisfied that David had yelled at Mr Meredith to leave the premises on the day of his dismissal on several occasions, I am also satisfied that David followed Mr Meredith around the warehouse yelling at him to leave and that David’s actions contributed to further aggravating Mr Meredith upon his return to the warehouse. However, whilst I have empathy for Mr Meredith’s situation, Mr Meredith is solely responsible for both his actions and his reactions. It is not a case of Mr Meredith simply using inappropriate language in the workplace, his conduct on the 11 September 2019 was conduct that was unnecessarily abusive and is inconsistent with his employment obligations. I therefore find that Mr Meredith was dismissed for a valid reason.

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

[109] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 110, and in explicit111 and plain and clear terms.112 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 113

[110] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 114

[111] Chad Group concedes Mr Meredith was not notified of the reason for his dismissal shortly before the decision was made. They submit that consideration should be given to the size of the organisation and the absence of human resource expertise. They also submit that consideration should be given to the nature of the industry they work in.

[112] Chad Group also concedes Mr Meredith was not provided with the opportunity to respond to David’s decision to terminate his employment. They submit that given the circumstances at the time any response provided by Mr Meredith was unlikely to produce a different outcome. They submit that Mr Meredith’s conduct has caused irreparable damage to the employment relationship.

[113] In this matter I am satisfied that the actions of David denied Mr Meredith procedural fairness. This weighs in favour of a finding of unfairness to Mr Meredith.

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

[114] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.¹¹⁵ With respect to this consideration, the Explanatory Memorandum states:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”116

[115] There were no discussions relating to the dismissal accordingly there was no opportunity for Mr Meredith to have a support person involved. In the circumstances I find this factor to be neutral. It would have been better for Mr Meredith if he was provided with the opportunity to have a support person present.

Warnings regarding Unsatisfactory Performance – s.387(e)

[116] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.¹¹⁷ Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct.¹¹⁸ The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.¹¹⁹

[117] The dismissal was not related to Mr Meredith’s performance. I therefore find this factor to be neutral.

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

[118] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.¹²⁰ Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.¹²¹

[119] David gave evidence that they do not have a dedicated HR person and that his brother’s wife had on occasion helped out however she had since obtained full-time employment and was no longer available.

[120] On the evidence before me I have formed the view that whilst Chad Group is a typical smaller to medium sized operation its growth has clearly exceeded the capability of its Managers to manage employee relations matters that typically begin to occur in organisations that have expanded beyond being a purely family operation.

[121] Regardless Chad Group had an obligation to ensure it addressed employee issues with procedural fairness. Whilst they did not have the internal HR capability, they were aware that they could seek, and had in the past sought, advice on such matters involving an employee’s conduct. David’s approach to dealing with Mr Meredith on the day of his dismissal was devoid of any fairness.

Other Relevant Matters – s.387(h)

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

[123] There are no other matters raised by the parties in this matter therefore I find this consideration to be neutral.

Conclusion

[124] I have considered the reasons for dismissal and the lack of procedural fairness afforded to Mr Meredith in effecting his dismissal. I have also taken into consideration my findings regarding how Mr Meredith’s conduct had been managed in the workplace. The evidence supports a finding that Mr Meredith’s behaviour was generally condoned however on this occasion his conduct had been directed towards his direct Manager who had decided it was unacceptable. Whilst I am satisfied the dismissal was justified, on balance I find that the dismissal was procedurally unfair and harsh in the circumstances.

Remedy

[125] I am not satisfied that I have enough evidence or submission such that I could determine remedy. I shall therefore issue separate directions to deal with that matter.

COMMISSIONER

Appearances:

Dr J McConville of James McConvill & Associates Pty Ltd for the Applicant.
Mr T Fuimaono-Page of Victorian Chamber of Commerce and Industry for the Respondent.

Hearing details:

2020.
Melbourne:
February 13, 14.

Final written submissions:

Respondent: 6 March 2020
Applicant: 13 March 2020

Printed by authority of the Commonwealth Government Printer

<PR717622>

 1   Exhibit R2,p1

 2   Ibid, p8

 3   Ibid, p 23

 4   Ibid

 5   Exhibit A1, p13

 6   Ibid, p16-17

 7   Ibid, p36

 8   Ibid, p38

 9   Ibid, p41

 10   Ibid, p39-42

 11   Ibid, p43

 12   Ibid, p44

 13   Exhibit A3, p4

 14   Transcript PN96

 15   Exhibit A3, p10

 16   Ibid, p12

 17   Ibid, p13-15

 18   Ibid, p33

 19   Ibid, p34

 20   Ibid, p36

 21   Ibid, p38

 22   Ibid ,p43

 23   Ibid, p49-54

 24   Ibid, Annexure PM3

 25   Ibid, p22

 26   Transcript PN99

 27   Transcript PN178

 28   Transcript PN192-198

 29   Transcript PN208-212

 30   Exhibit A3, p25-27

 31   Transcript PN221-229

 32   Transcript PN100, 230

 33   Transcript PN230-234

 34   Transcript PN243

 35   Transcript PN117

 36   Transcript PN438, 444

 37   Transcript PN 120, 117

 38   Transcript PN121

 39   Transcript PN127

 40   Transcript PN128

 41   Transcript PN 128-129

 42   Exhibit A4, p16

 43   Exhibit A4, p 22-23

 44   Transcript PN646

 45   Transcript PN647, 627

 46   Exhibit R3, p34

 47   Ibid, p5-6

 48   Ibid, p10

 49   Ibid

 50   Ibid, p11

 51   Ibid, p11-12

 52   Ibid, p14

 53   Transcript PN768

 54   Transcript PN769

 55   Transcript PN777

 56   Transcript PN784

 57   Transcript PN765

 58   Transcript PN766

 59   Transcript PN762

 60   Exhibit R4, p2

 61   Ibid, p3

 62   Ibid, p13

 63   Transcript PN817

 64   Exhibit R4, p9

 65   Exhibit R5, p5

 66   Ibid, p6-10

 67   Ibid, p9

 68   Ibid, p10

 69   Ibid, p11

 70   Ibid, p12

 71   Ibid, p13

 72   Transcript PN886 - 887

 73   Exhibit R5, p22

 74   Ibid, p24

 75   Ibid, p25-27

 76   Ibid, p28-29

 77   Ibid, p33

 78   Ibid, p34

 79   Ibid, p40

 80   Ibid, p42

 81   Ibid, p43

 82   Ibid, p45

 83   Ibid, p49

 84   Transcript PN1122

 85   Transcript PN1122-1125

 86   Transcript PN1240

 87   Exhibit R10, p2-3

 88   Ibid, p4

 89   Exhibit R11, p2

 90   Ibid, p3

 91   Transcript PN1271

 92   Exhibit R11, p5

 93   Transcript PN1287

 94   Exhibit R12

 95   Exhibit R11, p7

 96   Transcript PN1276

 97   Exhibit R11, p12

 98   Transcript PN1278

 99   (1995) 185 CLR 410.

 100   Ibid at 465

 101   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.

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

 103   Ibid

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

105 Ibid

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

 107   Ibid

 108   Transcript PN1122-1138

 109   Exhibit A3, p 64-65

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

 111   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [151]

 112   Previsic v Australian Quarantine Inspection Services Print Q3730

 113   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [73]

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

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

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

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

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

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

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

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