| FWC 2914 [Note: This decision has been quashed - refer to Full Bench decision dated 30 November 2020 [ FWCFB 6429]
|FAIR WORK COMMISSION
Fair Work Act 2009
Ingleburn Bus Services Pty Ltd t/a Interline Bus Services
DEPUTY PRESIDENT BOYCE
SYDNEY, 28 AUGUST 2020
Application for an unfair dismissal remedy — whether dismissal was harsh, etc — dismissal asserted to be because of ‘serious misconduct’ — no serious misconduct found on the evidence — where employee conduct has been erroneously, incorrectly, or mistakenly called or labelled by an employer ‘serious misconduct’, this will not, in and of itself, necessarily detract from that conduct being found to be a ‘valid reason’ for dismissal — the focus is upon the reason for dismissal, not whether it ought or ought not be labelled serious misconduct — whether swearing at colleague a valid reason alone for dismissal — repeated actions of wilful misconduct found to be ‘collectively’ a valid reason for dismissal — Applicant walked in front of a moving bus to antagonise fellow bus driver — procedural fairness occurred despite allegations not put to Applicant in writing — procedural fairness neither a science, nor a term of art — dismissal was not harsh, etc — application dismissed.
 On 12 December 2019, Mr Mark Bartlett (Applicant) filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). By way of his Application, the Applicant claims that he was dismissed from his employment with Ingleburn Bus Services Pty Ltd t/a Interline Bus Services (Respondent) on 9 December 2019, and that his dismissal was “unfair” within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).
 On 31 December 2019, the Respondent filed a Form F3 with the Commission (Response). By way of that Response, the Respondent asserts that the dismissal of the Applicant was based upon a valid reason (concerning repeated instances of poor attitude, substandard behaviour, and/or misconduct), and that a fair process was undertaken in dismissing the Applicant from his employment.
 Following the receipt of submissions and evidence in accordance with directions made, I held a hearing (by telephone) on 2 April 2020. Mr Adam Grumley (Transport Workers’ Union — New South Wales Brach) appeared for the Applicant. Mr Ian MacDonald (Australian Public Transport Industrial Association) appeared for the Respondent.
 Having had regard to the evidence and submissions before me, I have determined that the Applicant’s dismissal was not unfair within the meaning of Part 3-2 of the Act. Accordingly, the Application is to be dismissed. My reasons for making this determination follow.
 The Applicant filed two witness statements in this matter, one titled “Statement of Mark Bartlett”, and the other titled “Reply Statement of Mark Bartlett” (together, Bartlett Statements).
 The Bartlett Statements were taken to be read and can be summarised as follows:
(a) From 1 July 2014, the Applicant was employed by the Respondent as a “Public Transport Operator” (more commonly known as a “Bus Driver”), operating out of the Respondent’s Macquarie Fields depot. The Applicant was initially employed by a different company in 1996, which was acquired by the Respondent in 2014.
(b) The Applicant worked day shifts, starting at 5:00am AEST and finishing work at around 13:30pm AEST, five days per week. The Applicant was responsible for driving along two bus routes in Sydney’s south west.
(c) The Applicant is of the belief that he has not engaged in any “major” displays of poor performance or conduct. He notes that he has been subject to “minor” warnings in the two years prior to his dismissal.
(d) On 27 June 2017, the Applicant was given a “final written warning” regarding an incident that occurred near to the Glenfield railway station. The Applicant was seen smoking a cigarette by one of the Respondent’s inspectors (“smoking during a trip / standing too close to the front door / un-securing the bus”), who reported the incident to the Respondent (Cigarette Incident). The Applicant says he was not smoking inside the bus, as was alleged, but was actually smoking an appropriate distance from the vehicle.
(e) On 25 August 2017, the Applicant wore a plain, white-collared shirt while performing his duties. However, the Applicant was required to wear a company uniform. The Respondent was made aware of the situation. The Applicant’s manager phoned the Applicant and directed the Applicant to immediately return to the depot. Prior to returning, however, the Applicant completed some of the bus route he had been assigned (Non-Compliance Incident). The Applicant received a “formal written warning” for the Non-Compliance Incident.
(f) On 2 January 2018, the Applicant was given a “warning” regarding an altercation between the Applicant and a co-worker, Mr Tom Cinick. In short, the Applicant was out dining with colleagues outside of work hours. Mr Cinick offered to pay the bill on his wife’s credit card. Those present provided Mr Cinick with money for the dinner. The Applicant believes that Mr Cinick kept the excess money for himself, when it was intended to be a gratuity payment to the restaurant. The Applicant took exception to the Mr Cinick’s alleged deception. Post this event, the Applicant considered that the behaviours of Mr Cinick whilst on a cruise boat (with the Applicant and other employees present) were inappropriate. The Applicant sent Mr Cinick a text message which contained some “choice words” and “may” have made Mr Cinick feel “threatened” (Conflict Incident). The Applicant says that given the text message was sent outside of work hours, and did not relate to work issues, he should not have received a warning about the Conflict Incident.
(g) On 20 December 2018, the Applicant was given a “formal re-issued written warning” regarding the defacing of company property. The Applicant drew a picture of a dartboard (with a number of knives hanging out of it) on the back of a fluorescent coloured vest supplied and owned by the Respondent. The Applicant also drew a picture of two pistols on the front of the vest (Defacing Vest Incident). The Applicant admits to wearing the defaced vest on at least three occasions before he was directed to return the vest to the Respondent. The Applicant says that he was merely “decorating” the vest, and that other employees have defaced their vests in a similar manner, however, were never subject to any disciplinary proceedings concerning same.
(h) On 26 June 2019, the Applicant was given a “final written warning” regarding an incident in which he was almost hit by a bus leaving the depot. The Applicant says that he was a having a cigarette with a colleague while at the bus depot. At that time, he noticed a bus leaving the depot. He moved out of the way of that vehicle, narrowly escaping being struck. Mr Cinick (who was the driver of that vehicle) opened the bus window and said words to the effect of, “next time I will fucking run you down” (Near Incident). The Applicant reported the incident to Respondent. The Applicant was summoned to a meeting several days later, where he was asked about the Near Miss Incident. During that meeting, the Applicant was shown CCTV footage of the Near Miss Incident. The Applicant was then confronted by an allegation that he intentionally walked in-front of the bus, which he denied. Despite his denial, the Applicant was suspended from his duties. Moreover, the Applicant also claims to have reported the Near Miss Incident to SafeWork NSW. The Applicant says SafeWork NSW sent out a representative to view the CCTV footage. Shortly after the Near Miss Incident, the Applicant says that Mr Cinick stated to him “been there before [you]” (referring to the Applicant’s wife). I note that Mr Cinick says (in a statement made to the Respondent at the time) that the Applicant, post the incident, told another employee to tell Mr Cinick to “wank me off”, to which Mr Cinick replied “there is nothing to wank off”.
(i) In late November 2019, the Applicant was made aware of a complaint made about the Applicant by a member of the public on 19 November 2019. The complainant says that her son was bullied by other students while on the bus, and that the Applicant did nothing about it (Bullying Complaint). The Applicant denies having any knowledge that such bullying occurred.
(j) The Applicant was directed by the Respondent to complete an incident report regarding the Bullying Complaint. In completing that incident report, the Applicant only wrote “fuck off I know nothing” (Swearing Incident). The Applicant says that the timing of his receipt of the Bullying Complaint was made worse by the fact his brother passed away some days prior.
(k) The Applicant says that his employment was suspended for 10 days as a result of the Swearing Incident. After that time, he was directed to attend a meeting on 9 December 2019. Mr Joe Oliveri (Managing Director of the Respondent) was in attendance. Prior to that meeting Applicant says he was:
(i) never issued with a letter of allegations;
(ii) not invited to provide a written response to the Swearing Incident;
(iii) not advised that he may be dismissed from his employment depending upon his response to the allegations made against him; and
(iv) not given notice that he would be required to show cause as to why his employment should not be terminated.
(l) During that meeting, the Applicant was asked to provide a verbal response to the Swearing Incident. Once the Applicant did so, Mr Oliveri said to the Applicant that the Respondent had decided to terminate the Applicant’s employment with immediate effect on the basis of gross misconduct. The Applicant was then directed to leave the workplace.
(m) Further, the Applicant was provided with a letter signed by Mr Oliveri (Termination Letter). Notably, the letter is dated 4 December 2020, and confirms that the Applicant’s employment with the Respondent is terminated effective 9 December 2020, and that the Applicant’s employment is terminated “because of”:
(i) Cigarette Incident;
(ii) Non-Compliance Incident;
(iii) Conflict Incident;
(iv) Defacing Vest Incident;
(v) Near Miss Incident; and
(vi) Swearing Incident.
(n) By way of reply to the statements of Mr Oliveri and Ms Karen Sherry (Customer Service Officer, Respondent), the Applicant gave evidence that:
(i) He was never trained in how to respond to customer complaints. The Applicant says that his only knowledge as to the Respondent’s complaint handling process is that, when a complaint is received, a written copy of the complaint is taped to an employee’s locker, and the employee/s concerned is supposed to provide a written response (to the complaint) to Mr Gerry Lee (Operations Manager for the Respondent), who the Applicant says is responsible for resolving complaints.
(ii) The Applicant understands that Ms Sherry works on the “front desk” in “reception”. He has had little engagement with Ms Sherry throughout his employment.
(iii) The Applicant has never had any training regarding bullying and harassment, but he treats his colleagues with respect. Moreover, the Applicant denies ever having bullied a co-worker.
(iv) The final warning letter that the Applicant received regarding the Near Miss Incident states that his employment would be terminated if there were any further reported incidents between himself and Mr Cinick. He denies that the letter stated he would be terminated for “any” breach of company policy.
(v) The Applicant is aware of other drivers who have given a similar response to that which he did in his response to the Bullying Complaint. The Applicant had “no idea” that it would be Ms Sherry who would receive his complaint response. The Applicant denies that he told Ms Sherry to “fuck off”. Instead, the Applicant “assumed” that Mr Lee “would return the form to me and asked me to do another one” [sic].
(vi) The Applicant denies that he was not remorseful, and did not apologise for the Swearing Incident. The Applicant has supplied evidence of an apology letter, addressed to “Whom it may concern”, and an email addressed to Mr Oliveri, that says “it was silly sorry but that’s me”. The Applicant also denies that he has had any issues with the Respondent’s administrative staff and has otherwise “enjoyed great working relationships with any number of staff throughout [his] employment”. The Applicant says that the topic of “Ms Sherry” was not raised during the course of the meeting on 9 December 2019, and that had he known Ms Sherry was involved in the Swearing Incident, he would have apologised to her “right away” (albeit there is no evidence that the Applicant has ever directly apologised to Ms Sherry).
(vii) In regard to SafeWork NSW’s involvement in the Near Miss Incident, the Applicant says that he believes that SafeWork NSW issued an improvement notice to the Respondent. I note here that the Applicant purports to have attached a copy of that improvement notice to his witness statement, though the document that is attached is a picture of his late brother.
(viii) The Applicant’s tenure with the Respondent until his termination was “25 years”. At the time of that termination, the Applicant was 59 years old. He is married with two children, and services a mortgage over his place of residence. Moreover, the Applicant has had “difficulty” securing full-time employment on the basis of the same benefits that he received in his employment with the Respondent (noting, though, that the Applicant has secured casual employment since his dismissal).
 By way of cross-examination by Mr MacDonald, the Applicant gave the following additional evidence:
(a) The Applicant accepted that he had not worked for the Respondent for 25 years. In fact, he had only worked for the Respondent for five years. The Applicant accepted that the correct position was that he had worked in the industry for 25 years, and “followed the contracts” between different employers. 1
(b) Regarding the Near Miss Incident, and by reference to CCTV footage of same, it was put to the Applicant that he intentionally walked out in-front of the bus. Moreover, it was put to the Applicant that he admitted to purposely stepping out in front of the bus to antagonise his colleague Mr Cinick (who was driving the bus). The Applicant denied those allegations. 2 Further, it was put to the Applicant that no improvement notice was issued by SafeWork NSW, as alleged in his evidence, and that the Applicant had not produced any documentary evidence to that effect.3 The Applicant responded, “As far as I know there was an investigation by SafeWork, but nobody ever come to me with the findings of it”.4
(c) The Applicant reiterated that he had little-to-no knowledge of the Respondent’s complaint handling process, and that he had only “one or two” complaints made about his conduct during his employment with the Respondent. 5 As to the Bullying Complaint, the Applicant’s attention was drawn to the written complaint he was directed to respond to. He was asked if he had read that document, which he agreed he had. Specifically, the Applicant was asked if he had noticed that the written report stated that it had been “received by Karen Sherry and entered by Karen Sherry”. The Applicant said that he did not notice those words prior to it being drawn to his attention at the hearing, as he is “not the best reader in the world”. Had he realised that the written report was going to be provided to Ms Sherry, he would not have put down the words “fuck off”.6
(d) At the time of the Swearing Incident, the Applicant only wrote the words “fuck off” because his “writing is very bad” and his “reading and writing is not up to scratch”. When asked why he did not go and see a manger and discuss the Bullying Complaint with him/her, the Applicant said he did not do so because he is a “simple guy”. Tellingly, the Applicant made the following statement:
“I thought that when it was handed in, the manager of the operations would receive it and hand it back to me and get me to redo it. That’s what I honestly thought”. 7
(e) The Applicant accepted that his being 59 years of age was not considered to be of an “old age” in the industry. Since his termination, the Applicant has been able to secure casual work as a bus driver on an average 25 hours per week (although noting that the Applicant has since stopped work, which I understand to be because of the COVID-19 pandemic). 8
 By way of re-examination by Mr Grumley, the Applicant gave the following further evidence:
(a) Concerning the various misconduct incidents, and the warnings that he had received: 9
(i) in regard to the Cigarette Incident, the Applicant says that he was smoking outside the bus, and not inside the bus, as was alleged;
(ii) in regard to the Non-Compliance Incident, the Applicant says that he did follow company directive to return to the depot when instructed, albeit that he completed some of the route as there were customers on the bus at the time he was directed to return; and
(iii) in regard to the Defacing Vest Incident, the Applicant accepts responsibility for his conduct but says that other employees had engaged in the same behaviour.
 The Respondent tendered two witness statements in this matter:
(a) Statement of Ms Karen Sherry dated 10 March 2020; and
(b) Statement of Mr Joe Oliveri dated 11 March 2020.
Evidence of Ms Sherry
 The Statement of Ms Sherry was taken to be read as her evidence-in-chief, by which Ms Sherry gave the following evidence:
(a) Ms Sherry is employed by the Respondent in the role of customer service, and has been for 12 years. Ms Sherry says that she is familiar with the Applicant, and had regular (albeit intermittent) contact with him.
(b) Ms Sherry’s role involves the receipt of customer complaints, which come to her through the NSW Government’s “131 500” complaint line.
(c) On 25 November 2019, and through the “131 500” complaint line process, Ms Sherry received a detailed complaint regarding an incident that is said to have occurred on 19 November 2020 (that is, she received a complaint about the Bullying Incident).
(d) Ms Sherry entered details of the Bullying Complaint into the Respondent’s electronic system known as “TIMS”. Ms Sherry then printed a copy of the complaint to provide onto the driver to whom the complaint concerned (i.e. the Applicant). Ms Sherry understood that one of the driver’s supervisors would place the printed complaint in the locker of the driver.
(e) Ms Sherry relies upon a driver’s response to a complaint so that she can then contact the complainant and advise them as to how the Respondent has dealt with their complaint. Further, Ms Sherry says that the Respondent is required to advise the NSW Government regarding each complaint received. Ms Sherry says that she has carried out this process for many years, and has provided complaints to drivers concerned — including the Applicant.
(f) Ms Sherry has provided a copy of the Applicant’s response to the Bullying Complaint. The Applicant has signed off his response, which clearly reads (and only reads), “Fuck off I know nothing” (sic).
(g) Ms Sherry says that she has never received such a response before (from anyone), and provided the response to Ms Carmel Farrugia (her manager). Ms Farrugia indicated that she would take up the matter with Mr Oliveri.
(h) Ms Sherry says that the Applicant has neither approached her to offer an apology for his words, nor provided a “satisfactory” response to the original request for details of the Bullying Complaint.
 Further to the above, under questioning by Mr MacDonald, Ms Sherry gave the following further evidence:
(a) Ms Sherry was originally employed by the Respondent as a receptionist. Several years after her initial engagement, Ms Sherry took on the task of complaint handling. Ms Sherry completed this task from the reception desk. Several years prior to now, and as the complaints process become more technical and important to the Respondent’s business, the Respondent resolved to hire another receptionist, and Ms Sherry would “just focus on complaints and charters”. 10
(b) Ms Sherry’s name appears on three different areas of the complaint report provided to drivers. How complaints are handled are determined by a driver’s response. CCTV footage may be reviewed in order to validate a complaint. Ms Sherry says that she has never received a response from a driver telling her to “fuck off” (other than the Applicant). 11
 By way of cross-examination by Mr Grumley, Ms Sherry gave the following evidence:
(a) Ms Sherry no longer sits in the reception area, but “just behind the reception desk to the side” and “in an office beside the reception desk”. 12
(b) Ms Sherry is responsible for validating the truthfulness of complaints. Ms Sherry does so by checking CCTV footage and/or a driver’s response. Regarding the Bullying Complaint, Ms Sherry could not recall if CCTV footage was used to validate the complaint. Once the Bullying Complaint was received, Ms Sherry contacted the complainant and informed her that the matter would be investigated. Ms Sherry then prepared a report about the Bullying Complaint, and provided that report to Mr Lee (who then passed the report onto the Applicant). Ms Sherry did not contact the Applicant directly about the Bullying Complaint. Mr Lee was an intermediary between Ms Sherry and the Applicant. 13
(c) Ms Sherry could not recall if the Applicant had been subject to a complaint other than the one concerning the Bullying Complaint. 14
(d) Ms Sherry was not involved in any disciplinary proceedings against the Applicant regarding the Swearing Incident. Ms Sherry has not had any contact with the Applicant since the Swearing Incident. Ms Sherry is of the view that the Applicant had “ample opportunity” to apologise to her but he has simply chosen not to do so. 15
Evidence of Mr Oliveri
 The Statement of Mr Joe Oliveri was taken to be read as his evidence-in-chief, by which he gave the following evidence:
(a) Mr Oliveri is the Managing Director of the Respondent. He has the “final responsibility for making decisions to hire and fire” employees. As the Respondent is a “family owned company”, Mr Oliveri makes such decisions after consulting with other staff members, including his sister, Ms Farrugia.
(b) In 2014, the Respondent secured a tender with the New South Wales government to run route and school bus services in or around Liverpool in the Sydney Metropolitan area. The contact of service requires that the Respondent meet certain Key Performance Indicators (KPIs), the breach of which could lead to the termination of a contract of service. One of those KPIs is in regard to complaint handling. The NSW Government operates a complaints line, known as the “131500” line, and it must be maintained by the Respondent. All complaints received by the Respondent must be entered into an electronic system known as “TIMS”. Once a complaint is generated, the written details are sent to the driver for whom the complaint has been made. The driver’s response is essentially provided to the complainant, and entered into the TIMS system. A copy of the report is also generated for the NSW Government, who is able to audit the system. Unsatisfactory responses are reported to the NSW Government, and can harm the business’ chances of securing the contact of service into the future. The Respondent provides training to all Bus Drivers regarding complaints handling procedures, and the importance of compliance with same. Ms Sherry is responsible for entering complaints, and the drivers’ responses, into the TIMS system.
(c) All staff receive training regarding “the proper behaviour required between each other”, which is an “inherent requirement of the job and this is impressed upon all staff”. The Applicant has been in breach of this requirement on several occasions. In this regard:
(i) the Swearing Incident, and the Applicant intentionally writing “fuck off” in the complaint response provided to Ms Sherry;
(ii) the Near Miss Incident, particularly in Mr Oliveri’s view, that the Applicant did intentionally walk out in front of Mr Cinick’s bus as it was leaving the station. Mr Oliveri says that he took into account the opinion of a SafeWork NSW inspector, who upon watching the CCTV footage, said to Mr Oliveri, “This guy looks like he has deliberately walked in front of the bus”. Mr Oliveri also took into account a statement made to him by a witness to the Near Miss Incident. The witness was Mr Mick Kennedy, who provided a written statement as part of a workplace investigation into the Near Miss Incident. That statement has been provided to the Commission by Mr Oliveri. Tellingly, Mr Kennedy says that he asked the Applicant why he walked out in front of the bus, to which the Applicant replied, “simply to antagonise Tom Cinick”. At the time, Mr Oliveri considered terminating the Applicant regarding the Near Miss Incident, but decided at that time that a final warning was the “best outcome”;
(iii) an incident that occurred between the Applicant and Mr Cinick on 23 November 2018, in which the two men are alleged to have threatened physical violence on one another; and
(iv) as to the relationship between the Applicant and Mr Cinick more generally, Mr Oliveri says that “trivial allegations” from both men were brought to his attention on “a number of occasions”. Mr Oliveri says he met with the Applicant on at least two occasions to counsel the Applicant regarding his differences with Mr Cinick.
(d) In regard to the Swearing Incident, Mr Oliveri says the following:
(i) Mr Oliveri became aware of the Swearing Incident on 25 November 2019, whereby Mr Oliveri directed the Applicant to attend the workplace to meet with himself and other administration staff. The Applicant complied. Mr Barry Milburn (TWU delegate) also attended;
(ii) Mr Oliveri put to the Applicant that the response (i.e. the words “fuck off”) were “not in keeping with the way the [Respondent] does its business”. He gave the Applicant an opportunity to respond to the allegations raised against him. Mr Oliveri also informed the Applicant that the document was a public document that may be accessible by the NSW Government, and the ramifications it could have for the Respondent’s business;
(iii) Mr Oliveri says that the Applicant apologised for the Swearing Incident. However, Mr Oliveri was of the view the Applicant was not remorseful, and did not provide a satisfactory response to the Swearing Incident. Mr Oliveri says his dissatisfaction as to the Applicant’s response was partly informed by the fact that the Applicant had been involved and disciplined only months earlier regarding the Near Miss Incident (and his poor working relationship with Mr Cinick);
(iv) the Applicant was stood down on full pay, while Mr Oliveri considered the seriousness of the Swearing Incident, the impact upon other staff, and the potential ramifications for the renewal of the contract of service with the NSW Government. Mr Oliveri also took into account the Cigarette, Non-Compliance, Defacing Vest, and Near Miss Incidents. Mr Oliveri also took into account that the Applicant had not directly apologised to Ms Sherry;
(v) Mr Oliveri formed the view that the Swearing Incident amounted to gross misconduct, and that it destroyed the “trust and confidence” Mr Oliveri held in the Applicant to properly and professionally engage at the workplace; and
(vi) Mr Oliveri met with the Applicant and Mr Milburn on 9 December 2020. Mr Oliveri gave the Applicant an opportunity to show cause as to why the Applicant’s employment should not be terminated. After the Applicant responded, Mr Oliveri maintained the view that the Applicant was without remorse for the Swearing Incident, had not provided a satisfactory response or justification for his conduct, and ultimately decided (at that time) to dismiss the Applicant.
(e) The Applicant’s employment was terminated by the Respondent for serious/gross misconduct on 9 December 2020. Mr Oliveri provided the Commission with a letter to this effect.
 By way of cross-examination by Mr Grumley, Mr Oliveri gave the following additional, relevant evidence:
(a) Mr Oliveri only involves himself in the complaints process after it is escalated to him from a manager. Otherwise, managers and Ms Sherry are trained in complaint handling. Mr Lee is not involved in the complaint handling process; his role is to direct a complaint to a bus driver, where necessary, and have them complete a complaint response. Mr Lee provides the complaint report (as compiled by Ms Sherry) to bus drivers by placing it in their locker, or directing other staff to do so. 16
(b) In regard to the Swearing Incident, Mr Oliveri says that he did not “have a clue” that there were “other circumstances going on for Mr Bartlett” — namely the death of his brother. 17 Mr Oliveri admits, however, that he received a text message from Mr Bartlett that informed him of Mr Bartlett’s brother’s passing. However, Mr Oliveri says that he did not take notice of that text message because he receives “so many”.18
(c) Mr Oliveri accepts that Mr Bartlett was not offered the opportunity to provide a written response to the Swearing Incident. However, Mr Oliveri took the view that the Applicant had already been provided with an opportunity to provide a response, which was his initial response. Further, Mr Oliveri says that whilst the allegations concerning the Swearing Incident were not put to the Applicant in writing, the allegations were put to the Applicant verbally, and in the presence of a support person. 19
(d) Mr Oliveri accepts that the Swearing Incident was the first time that the Applicant had been subject to a disciplinary proceeding regarding the customer complaint process.
(e) Mr Oliveri says that Ms Sherry did not have “direct” involvement with the Applicant regarding the customer complaint. Ms Sherry prepared the customer compliant, provided the complaint report to another person, who provided that document to the Applicant. 20 Further, Mr Oliveri noted that the Swearing Incident was the “tipping point”, and that the Applicant was on “thin ice” at the time he was terminated.21
(f) As to the disciplinary processes carried out regarding the Applicant’s previous incidents of misconduct (as identified in these reasons), Mr Oliveri says that no allegations were put to the Applicant in writing, nor was the Applicant given the opportunity to respond in writing (at least in regard to the Cigarette Incident, and the Non-Compliance Incident). The Applicant was, however, given an opportunity to respond verbally. 22
(g) Regarding the Termination Letter, Mr Oliveri did not draft the letter; he directed someone else to do so, but told that person what the letter should “sound like”. Mr Oliveri agrees that the letter was drafted on or about 4 December 2020, being some five days before he met with the Applicant and informed the Applicant that his employment was being terminated, but that it was not “ready to go” on 4 December 2020. Otherwise, Mr Oliveri says that he had not made his decision to terminate the Applicant until he met with the Applicant, and heard the Applicant’s “excuse” for the Swearing Incident. 23
(h) Mr Oliveri says that there were “over 30 complaints” made about the Applicant during his employment with the Respondent, and that the Applicant had been “spoken to” about his conduct in this regard. Some of these complaints pertained to bullying and harassing behaviour. However, Mr Oliveri accepted that those incidents were not being brought into these proceedings. 24
 By way of re-examination by Mr MacDonald, Mr Oliveri gave the following further evidence:
(a) Some of the other incidents involving the Applicant (that were not brought into evidence before the Commission) included “some really silly documentation that was put into the locker room on other people’s lockers” and “reckless driving”. 25
(b) The incident that lead to the Applicant’s dismissal was the Swearing Incident. Further, and regarding the meetings held between Mr Oliveri and the Applicant concerning the Swearing Incident, the Applicant was accompanied by a support person and given an opportunity to respond to the allegations concerning his (mis)conduct. 26
 Section 385 of the Act qualifies a claim for unfair dismissal:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388”.
 The parties were not in dispute as to whether the Applicant had been “dismissed” within the meaning of ss.385(a) and 386 of the Act. Further, neither party made submissions or provided evidence that s.385(c) or (d) of the Act were enlivened in this matter. Thus, the only outstanding question before me to determine is whether the Applicant’s dismissal was “hash, unjust, or unreasonable”. 27
Whether the dismissal was harsh, etc
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
 In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”. 28 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.29
 Where the dismissal relates to conduct, the reason for dismissal may be valid because the conduct occurred and justified dismissal. However, the reason may not be valid because the conduct did not occur, or it did occur but did not justify dismissal. 30 The question of whether the alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it.31
 The Applicant submits that his impugned conduct (the Swearing Incident) did not amount to a valid reason for his dismissal. The Applicant submits that, on no characterisation of the facts, or the evidence, can it be found that the Respondent had a valid reason for terminating the Applicant’s employment. Further, and in the alternative, the Applicant says that if a valid reason does exist, any such reason would not amount to serious misconduct within the meaning of that term as found in reg.107 of the Fair Work Regulations 2009 (Regulations), or otherwise at law.
 As to the latter submission, the Respondent submits that the Applicant’s dismissal was serious misconduct within the ambit of reg.1.07 of the Regulations. Further, it was behaviour of the Applicant that amounted to conduct not in keeping with the continuation of the Applicant’s employment.
 Where employee conduct has been erroneously, incorrectly, or mistakenly called or labelled by an employer as “serious misconduct”, this will not, in and of itself, necessarily detract from that conduct being found to be a “valid reason” for dismissal. Just because conduct is mislabelled by an employer as “serious misconduct” when it is more aptly classified as “misconduct” does not (and cannot) mean that no valid reason for a dismissal exists. The determination as to whether a reason for dismissal is a valid reason does not rise and fall on labels as to the type of conduct engaged in. Rather, it is the ‘substance’ of the reason(s) for dismissal that is the relevant focus. This is the case whether or not an employee has been previously counselled, reprimanded or warned in relation to that conduct.
 I accept Mr Oliveri’s evidence that the Respondent’s complaint’s handling process is a critical process to the Respondent’s business. The Respondent is obliged to treat complaints seriously (in accordance with the NSW Government’s expectations on same). Failure to meet those obligations could very well jeopardise the Respondent’s contractual relationship with the NSW Government (which is an all important relationship to the Respondent).
 I do not accept that the Applicant’s behaviour in regard to the Swearing Incident amounted to “serious misconduct” at law, (that is, behaviour not in keeping with the continuation of the Applicant’s employment). 32 As critical as the complaint reporting process is to the Respondent’s business, the Applicant’s written response did not go so far as to suggest that the Applicant had evinced an intention not to continue in his employment. However, it was certainly conduct that ‘breached’ the express and implied terms of the Applicant’s employment agreement (contract) with the Respondent, thus amounting to misconduct. However, in and of itself, I do not consider it to be misconduct justifying dismissal without notice.
 However, there is more to this story than just the Swearing Incident. Indeed, Mr Oliveri, in making his decision to dismiss the Applicant, relied upon various other incidents of misconduct committed by the Applicant during his employment. Having considered the evidence in relation to those other incidents of misconduct, I have concluded that they are all sustained, but for the Cigarette Incident (upon which I do not consider there to be sufficient evidence to make a finding that the Applicant was caught smoking in the bus, as opposed to outside the bus), and the Conflict Incident (which occurred outside of work). In other words, I have found that in addition to engaging in misconduct concerning the Swearing Incident, the Applicant also engaged in misconduct in relation to the Non-Compliance Incident (August 2017 – formal written warning), Defacing Vest Incident (December 2018 – formal re-issued written warning), and Near Miss Incident (June 2019 – final written warning). 33
 Specifically, in relation to the Near Miss Incident, the Respondent submits that the Applicant intentionally walked out in front of Mr Cinick’s vehicle, and that the Applicant did so to antagonise Mr Cinick. Having reviewed the CCTV footage myself at hearing, I consider it reasonable to conclude that the Applicant intentionally moved (wandered) in front of the moving bus being driven by Mr Cinick. This incident resulted in a final warning being issued to the Applicant (within six months of the Applicant’s dismissal). It may well be that this final warning concerned the Applicant’s behaviour in relation to the Near Miss Incident, but it can equally be said (on any reasonable view) to be a final warning in relation to bad attitude and poor conduct. Walking in front of a moving bus as a ‘gag’, or to intentionally antagonise another driver, is nothing less.
 The Applicant’s evidence that during his employment he was not subject to any “major” poor performance issues is untenable. In my view, on the evidence, it is unquestionable that the Applicant wilfully engaged in the conduct described in the Non-Compliance, Defacing Vest, Near Miss, and Swearing Incidents. The fact that the Applicant seeks to explain away, or otherwise downplay, the significance of these incidents (to the Respondent, and in these proceedings) cannot alter the fact that this conduct occurred. Nor can it alter the fact that such conduct, in my view, amounts to repeated instances of misconduct to which the Applicant received written warnings (including two “final written warnings”), and had his employment terminated for (Swearing Incident).
 The hostile relationship the Applicant has with his colleague, Mr Cinick, as well as his wilful disregard for the words he wrote in the complaint report (whether he knew it was being provided to Ms Sherry or not), demonstrates that the Applicant’s attitude towards his colleagues, and the expectations of him in that regard, are not of the same importance in his mind as they are for the Respondent.
 In his evidence, the Applicant asserts that his working relationship with Mr Cinick has returned to “normal”. I take that evidence with a grain of salt. The Applicant did not call Mr Cinick as a witness to support this positive assertion in his evidence. I am therefore unable to verify if the Applicant’s evidence as to normalcy in the working relationship is true. Given the length and intensity of the animosity between the two, I do not accept that I can make a positive finding that the Applicant and Mr Cinick have made amends. Indeed, on the current state of the evidence, it would be more appropriate to infer that their relationship more likely remains acrimonious to this day.
 Taken in the full context, and having regard to the documentary and witness evidence before me, the Applicant’s repeated incidents of misconduct (including his repeated disregard of the Respondent’s policies and procedures), amount to a valid reason for his dismissal. Absent a single incident of serious misconduct, the Respondent has nevertheless recourse to a defensible reason for termination, being that the Applicant has repeatedly engaged in misconduct, and continually snubbed expectations. The Respondent does not need to tolerate such behaviour indefinitely, especially when that behaviour makes other employees’ jobs all-the-more difficult for them to perform. I say this putting aside the warnings issued in relation to the Cigarette and Conflict Incidents.
 I also conclude that it is unreasonable for other employees to have to tolerate the Applicant’s repeated behaviours indefinitely. Contrary to the parties submissions in relation to various cases concerning swearing in the workplace, 34 in my view, the key issue in these proceedings is not the fact that the Applicant swore, but that his response hampered Ms Sherry in the performance of her duties (which, incidentally, are business critical duties for the Respondent). The question must be asked, why should an employer have to continue the employment of an employee who intentionally and repeatedly engages in misconduct, making their business operations more difficult to run, and the workplace more uncomfortable for other staff to work at? The simple answer is that the employer does not and (as a general proposition) would be able to rely on such a reason as being a “valid” one in and of itself.
 In view of the foregoing, I find that there was a valid reason for the dismissal of the Applicant by the Respondent. This leans away from a finding that the dismissal was harsh, unjust and/or unreasonable.
Was the Applicant notified of the valid reason(s)?
 An employee must be given explicit notification of a valid reason for termination before a decision is made to terminate their employment. 35
 The Applicant submits that the Respondent never made its reasoning clear as to the reason why the Applicant was terminated. The Applicant notes that the Termination Letter lists the numerous warnings given to the Applicant, and states that the decision to terminate his employment is “not reversable”. Further, the Applicant highlights that the letter is dated 4 December 2019, but given to the Applicant on 9 December 2019 (the inference being that the decision to terminate the Applicant was made before he was given notice of same). Finally, the Applicant submits that the Termination Letter fails to provide a specific reason in clear and unambiguous terms as to why the Applicant was actually dismissed. In this regard, the Applicant submits that the only conclusion that the Commission can make on the evidence is that the Applicant was not provided with notification of the reason for his dismissal.
 As to the supposed deficiency of reasons provided for dismissal, this submission is easily put aside. The Termination Letter clearly states that the reason for the Applicant’s dismissal was because of the various misconduct incidents described in the evidence. The Respondent has clearly and expressly communicated its reasons for dismissal to the Applicant. No more need be said.
 As to the disjunction between the date on the Termination Letter, and the date it was provided to the Applicant, Mr Oliveri’s evidence was that he directed another person to draft the letter on 4 December 2019, but that he was still “considering” whether to terminate the Applicant right up to the end of the termination meeting. I accept this evidence (Mr Oliveri came across to me as a straight-forward, no nonsense, truthful witness). Importantly, the Applicant was aware that the Respondent had taken an unfavourable view as to his conduct prior to the termination meeting. The Applicant has not pointed to any aspect of the response he provided at the termination meeting that he now asserts could have given rise to the Respondent altering its decision. In my view, the consequences of the absence of procedural fairness need to be identified, not just the absence of procedural fairness itself, if one is to be in a position to submit that such absence ought give rise to an overall finding as to unfairness. Even inferences arising from an absence of procedural fairness need to have at least some evidentiary foundation to be made, and matters of assumption and speculation ought never be relied upon.
 Taking all of the facts and circumstances into account (i.e. those beyond just the Termination Letter), the foregoing findings lean away from an ultimate finding that the Applicant’s dismissal was harsh, unjust and/or unreasonable.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
 Procedural fairness is neither a science, nor term of art. It requires an employee protected from unfair dismissal to be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. There is no particular form required for this ‘opportunity to respond’, and an employee may be given such an opportunity in person, in discussion, or in writing. 36 An opportunity to respond is to be provided before a decision is taken to terminate an employee’s employment.37 The opportunity to respond does not require formality or technicality, and is to be considered in a common sense manner.38 Where the employee is aware of the particular nature of an employer’s concern about his or her conduct or performance, and has an opportunity to respond to that concern, this will ordinarily be enough to satisfy legislative requirements.39
 The Applicant submits that the Respondent did not provide him with an opportunity to properly respond to the reasons for his termination, and so treated him unfairly. The Applicant identifies that the allegations made against him were not put to him in writing, and asserts that because of this, he was not provided an opportunity to respond to those allegations.
 I do not accept the Applicant’s submissions in this regard. The evidence is that the Applicant was provided with an opportunity to verbally respond to the various allegations of misconduct (made against him) when they were raised with him in person by the Respondent’s managers and/or Mr Oliveri. The manner in which the Respondent sought to address the Applicant’s instances of misconduct, at every step and turn, whilst not ideal, was nonetheless, in my view, an acceptable approach in the circumstances, and one in which the Applicant was familiar with (having regard to the manner in which concerns had been raised with him previously). The Respondent’s approach was frank, upfront, and appropriate in respect of an employee who, by his own admission, is not entirely literate. Indeed, the notion that disadvantage or unfairness might be visited upon an employee who is not entirely literate by having allegations of misconduct put to them verbally (as opposed to in writing) is counterintuitive.
 The Applicant’s submissions regarding procedural fairness are unduly pernickety. In my view, the Respondent did afford the Applicant procedural fairness. The Applicant was put on notice in regard to the allegations (including their particulars) made against him, and had a dialogue with the Respondent about same. That dialogue, or response, to the allegations put to him, is maintained by the Applicant in these proceedings. In other words, it is not the case in these proceedings that the Applicant says, ‘I was denied an opportunity (or a proper opportunity) to respond to the allegations made against me, and if I did get that opportunity, I would have said something different’.
 The foregoing findings lean away from a conclusion that the Applicant’s dismissal was harsh, unjust and/or unreasonable.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
 There being no contest as to factor, I give it neutral weight in my determination as to whether the Applicant’s dismissal was harsh, unjust and/or unreasonable.
Was the Applicant warned about unsatisfactory performance before the dismissal?
 The Applicant accepts that he received reprimands or warnings regarding the various misconduct incidents (as described in this decision). While the Applicant has made submissions that seek to undermine the appropriateness or validity of those reprimands and warnings, the Applicant’s submissions in this regard are not to the point. They do not bear repeating. On every occasion (with the exception of the Cigarette and the Near Miss Incidents), the Applicant admits to the misconduct. The Applicant has attempted to hold himself out to the Commission to be an “exemplary” employee, but his repeated misconduct is far from exemplary.
 The Respondent indeed put the Applicant on notice as to the potential consequences for him flowing from the various incidents of misconduct, and did so appropriately in accordance with the requirements of procedural fairness. This finding leans away from a conclusion that the dismissal of the Applicant was harsh, unjust and/or unreasonable.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
 The employer is a medium sized business. There is evidence that managers and/or directors engage with internal human resources. In the facts and circumstances of this case, I do not consider there to be any issue that this criteria impacts, and therefore treat it as a neutral consideration in this matter.
What other matters are relevant?
 The Applicant submits there are several other relevant factors that I ought to take into account in determining whether the Applicant has been unfairly dismissed, as follows:
(a) the dismissal was a disproportionate decision in the circumstances; and
(b) the personal circumstances of the Applicant contribute to the dismissal being harsh, namely the Applicant’s age, his length of service, the passing of his late brother at or around the time of his dismissal, and the fact that the Applicant has a mortgage to service (and has been adversely effected financially).
 I do not accept that the decision to dismiss the Applicant was disproportionate in the circumstances. Despite the Applicant’s length of tenure, his record of misconduct is hardly spotless. Further, this record of misconduct is compounded by the fact that the Applicant’s conduct in regard to the Swearing Incident (if left unattended or unaddressed) may have adversely affected the Respondent’s reputation and standing with the NSW Government, and underscores the significance of the unacceptable nature of the misconduct engaged in by the Applicant. All in all, in my view, the Applicant’s dismissal was a proportionate and appropriate response in the circumstances. Of course, the Applicant could have received another warning or final warning, but the Respondent had clearly formed the view that its dismissal of the Applicant was the most appropriate decision for it to make in the circumstances. On the facts and circumstances of this case, it is not for me to take a contrary view.
 As to the Applicant’s age, the Respondent submits that the Applicant’s age is near the industry average, and would otherwise not (and has not) prevented the Applicant from securing alternative (albeit casual) employment in the industry. I accept the Respondent’s submissions in this regard. I consider that the Applicant’s age is a neutral consideration in these circumstances.
 On the issue of the passing of the Applicant’s late brother at or about the time of his dismissal, I accept that this issue would likely have been weighing heavily on the Applicant’s mindset at the time. However, I do not consider, on the evidence, that it can be elevated to the point that the Applicant’s dismissal becomes harsh, unjust and/or unreasonable. Equally, the fact that the Applicant has a mortgage (or rent) to pay, beyond that fact alone, does not, in my view, create a situation in which the Applicant’s dismissal can be said to be harsh, unjust and/or unreasonable.
 Finally, I do not consider the absence of notice of termination, or payment in lieu of same, a matter that I need take into account in these proceedings. That is an issue as to an entitlement to notice under an employment contract and/or s.117 of the Act. This is not the forum to consider this issue from the perspective of unfair dismissal, or otherwise.
 I have made findings in relation to each matter specified in s.387 of the Act. I note that I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 40 In giving due weight to each, in the exercise of my discretion, I am equally entitled to give no weight to a relevant element/s. Having considered each of the elements specified under s.387, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable.
 Whilst the process to dismiss the Applicant could be described as somewhat ‘imperfect’, it was not a process that was devoid of fairness. The Applicant was made aware of why the Respondent was proposing to terminate his employment, and he responded to the allegations that were made against him. The Respondent, unsatisfied with the Applicant’s response to the concerns it had raised, and having regard to the history of the Applicant’s repeated misconduct, resolved to bring the Applicant’s employment to an end.
 During the course of his employment with the Respondent, the Applicant repeatedly engaged in misconduct. Taken individually, each of those incidents of misconduct alone may not give rise to a valid reason to dismiss the Applicant. However, collectively, the Applicant repeatedly demonstrated that he was resistant to following the Respondent’s directions and expectations. The Applicant flouted workplace policies, soured workplace relationships, and made the work of his colleagues all the more difficult to perform. He knew he was not meant to engage in such conduct, but did so anyway. The consequences of those decisions have ultimately resulted in his dismissal by the Respondent.
 The Respondent’s decision to dismiss the Applicant is not one to which the Commission ought to interfere with. To that end, the Applicant’s Application for an unfair dismissal remedy is to be dismissed. An order to that effect will be published with these reasons.
Mr Adam Grumley (Transport Workers’ Union — New South Wales Brach) appeared for the Applicant.
Mr Ian MacDonald (Australian Public Transport Industrial Association), appeared for the Respondent.
A hearing was conducted (by telephone) on 2 April 2020.
Final written submissions:
The Applicant filed written closing submissions on 6 May 2020.
The Respondent filed written closing submissions on 20 May 2020.
The Applicant filed a written reply on 28 May 2020.
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27 Cf ss.385(b) and 387 of the Act.
28 Selvachandran v Peteron Plastics Pty Ltd  IRCA 333; (2000) IR 371 at 373.
29 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
30 Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89;  FCA 1836 at .
31 King v Freshmore (Vic) Pty Ltd Print S4213  AIRC 1019 at  to .
32 See also: Randall v Aristocrat Leisure Ltd  NSWSC 411.
33 Noting the requirements for “warnings” set out in Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), -.
34 I was referred to the following cases in this regard: Slater v Patrick Port Logistics Pty Ltd  FWA 7204; Seychelles v Linfox Distribution Group (unreported decision of Wednesday, 31 July, 1996, in Matter No.IRC 511 of 1996); Nathan Hill v Cobham Aviation Services Pty Ltd  FWC 7875.
35 See: Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151; Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
36 Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50; Slann v Western Power (Print T1965, O’Connor C, 13 October 2000; Hiromi Tango v The Southern Cross Times (Print S7983, Hodder C, 13 July 2000)).
37 Crozier v Palazzo Corporation Pty Ltd Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000).
38 RMIT v Asher (2010) 194 IR 1, 14-15.
39 Gibson v Bosmac Pty Ltd (1995) 60 IR 1.
40 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, . See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), ; Edwards v Justice Giudice  FCA 1836, –.