DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Nash and Nathan Jago
v
Tasmanian Water & Sewerage Corporation Pty Limited T/A TasWater
(U2019/10440; U2019/10423)

Application for an unfair dismissal remedy – whether valid reason present – alleged inappropriate communications on workplace messaging system – all but one of allegations unsubstantiated – remaining allegation does not constitute valid reason – Applicants unfairly dismissed.

[1] This matter involves applications for unfair dismissal remedies made by Mr Joshua Nash (the First Applicant), and Mr Nathan Jago (the Second Applicant) (collectively, the Applicants). The Applicants were employed by Tasmanian Water & Sewerage Corporation Pty Limited t/a TasWater (the Respondent) as Supervisory Control Data Acquisition Operators. The First Applicant was employed from 28 September 2015 to 29 August 2019 1 and the Second Applicant from February 2016 to 29 August 2019.2 The applications were heard together.3

[2] The termination of the Applicants’ employment was based on substantiated allegations made against the Applicants involving a failure to comply with the Respondent’s Code of Conduct and Workplace Behaviour Policy in relation to inappropriate conduct of a sexual nature involving other team members. 4

[3] On 26 June 2019, the Respondent sent a letter to the Applicants providing details of the allegations to be investigated. 5 In July 2019, the Applicants were interviewed in relation to the allegations.6 On 29 August 2019, the Applicants were issued with termination letters substantially in the same terms.7 The allegations were set out by the Respondent in 7 specific allegations in relation to which findings were made that 6 of the 7 allegations were proven. The Applicants were terminated “as at the date of this letter [being 29 August 2019]” and noting that payment in lieu of notice will be provided as required by the Agreement.8

[4] On 17 and 18 September 2019, the Applicants made applications for relief from unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). The matter did not resolve at conciliation and proceeded before me to arbitration on 16 December 2019, 17 December 2019 and 29 April 2020.

[5] At the time of the dismissal, the Applicants’ employment was governed by the TasWater General Employees (Northern Region) Enterprise Agreement 2018 (the Agreement) and their duties were set out in their respective job descriptions. 9

Initial matters to be considered

[6] There is no dispute between the parties and I am satisfied on the evidence that:

(a) the Applicant’s application was made within the period required in s.394(2) of the Act;

(b) the Applicant was a person protected from unfair dismissal;

(c) the Respondent was not a “small business employer” as defined in s.23 of the Act, meaning that the Small Business Fair Dismissal Code does not apply; and

(d) the Applicant’s dismissal was not a case of genuine redundancy.

[7] Consequently, I am satisfied that the Commission has jurisdiction to determine the merits of the application.

Evidence

[8] The Applicants relied upon witness statements from each of the Applicants and the following employees of the Respondent:

•  Stuart Braid;

•  Charlotte How;

•  David John Thomas Roberts; and

•  Malcolm Bransden.

[9] The Respondent relied on witness statements from the following:

•  Suzanne Jones, a Human Resources Consultant and Principal of S2S Consulting Services;

•  Kevin Douglas, Operations Control Centre Manager for the Respondent;

•  Matthew James Burden, Department Manager for Employee Relations for the Respondent; and

•  Bennie Smith, General Manager Service Delivery for the Respondent.

[10] Each of the witnesses was subject to cross examination.

Was the dismissal harsh, unjust and/or unreasonable?

[11] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether the Applicant’s dismissal was harsh, unjust and/or unreasonable. I will address each of these statutory considerations in turn below.

Valid reason (s.387(a))

[12] In cases relating to alleged conduct, such as the present matter, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred. It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 10

[13] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post as follows: 11

“[35]... as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a “valid reason” should not impose a severe barrier to the right of an employer to dismiss an employee.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”

[14] The Respondent contends that it had a valid reason to terminate the Applicants on the basis that the Applicants: 12

•  Engaged in inappropriate conversations about a co-worker, being Ms How, breaching both Ms How’s trust and the Respondent’s trust that they would behave appropriately towards other team members;

•  Colluded to provide identical responses which dishonestly re-characterise the true nature of the conversations that are the subject of the allegations;

•  Failed to acknowledge or accept any wrongdoing causing the Respondent to lose trust and confidence that they would not engage in the same behaviour in the future; and

•  Breached the Workplace Behaviours Policy and Respondent’s Corporate Code of Conduct by engaging in inappropriate conversations of a sexual nature about Ms How and Ms Hingston by failing to behave appropriately and treat co-workers with dignity, respect and courtesy.

[15] At the heart of the Respondent’s case is a series of text conversations. The six specific allegations relied on by the Respondent are as follows:  13

•  Allegation 1 – that the Applicants made sexualised comments regarding the “cloning” of Ms How and Ms Hingston that were inappropriate based on the following characterisation of the exchange:

“Monday, February 11, 2019 at 2:44:17 PM: <Nathan Jago> but the way he was talking he is not shitty with us at all he even said before i could clone you and Josh i wouldnt have any issues

Reference to cloning people.

Monday, February 11, 2019 at 2:44:38 PM: <Josh Nash> He could clone C

Cloning of Charlotte How (OCC SCADA Operator).

Monday, February 11, 2019 at 2:44:47 PM: <Josh Nash> then we could have one each

Have one Charlotte How each.

Monday, February 11, 2019 at 2:45:20 PM: <Nathan Jago> I will have 1 of each thanks C and sparky

One each of Charlotte How and Letitia Hingston (Service Delivery Dispatcher) (It is common knowledge in the OCC ‘sparky’ is Letitia Hingston nickname).

Monday, February 11, 2019 at 2:45:59 PM: <Josh Nash> Id only need Sparky for days when C “was sick”

Only need Letitia Hingston for days when Charlotte How “was sick”.

Monday, February 11, 2019 at 2:46:55 PM: <Nathan Jago> i wouldnt care even if C was sick

Wouldn’t care even if Charlotte How was sick.

End of chat saved on Monday, February 11, 2019 at 2:47:51 PM

The above exchange is taken to be in reference to having possession of Charlotte How and Letitia Hingston. (sic)” 14 (own emphasis added)

•  Allegation 2 – that the First Applicant made a sexualised comment to the Second Applicant that he might need a rub down on Saturday night in reference to Ms How based on the following characterisation of the exchange:

“Start of chat saved on Thursday, March 14, 2019 at 12:44:20 PM

Thursday, March 14, 2019 at 12:44:20 PM: <Josh Nash> might need a rub down Saturday Night End of chat saved on Thursday, March 14, 2019 at 12:44:22 PM

Josh Nash scheduled to work Night Shift 16/17 March 2019 with Charlotte How to cover leave for Nathan Jago.

Start of chat saved on Thursday, March 14, 2019 at 12:44:48 PM

Thursday, March 14, 2019 at 12:44:48 PM: <Nathan Jago> haha

End of chat saved on Thursday, March 14, 2019 at 12:45:22 PM”  15 (own emphasis added)

•  Allegation 3 – that the Applicants made sexualised comments in relation to watching Game of Thrones with Ms How, including inappropriate comments referring to the First Applicant’s sexual arousal based on the following characterisation of the exchange:

“Start of chat saved on Thursday, March 14, 2019 at 4:46:12 PM

Thursday, March 14, 2019 at 4:46:12 PM: <Josh Nash> I cant wait till you work a NS with Charlotte

Josh Nash cannot wait until Nathan Jago works a night shift with Charlotte How.

Thursday, March 14, 2019 at 4:46:23 PM: <Josh Nash> You can see how hard it is

See how hard it is to work with Charlotte How.

Thursday, March 14, 2019 at 4:46:35 PM: <Josh Nash> especially watching GOT

Especially watching Game of Thrones television series.

End of chat saved on Thursday, March 14, 2019 at 4:46:41 PM

Start of chat saved on Thursday, March 14, 2019 at 4:47:13 PM

Thursday, March 14, 2019 at 4:47:13 PM: <Nathan Jago> you mite have to join the unsullied so you stop thinking about it

Unsullied are eunuch (a man who has been castrated) characters in the Game of Thrones television series.

End of chat saved on Thursday, March 14, 2019 at 4:47:20 PM

The above exchange contains the inference that it would be easier if castrated as that would remove the thinking about Charlotte How in a sexually desirous way.

Start of chat saved on Thursday, March 14, 2019 at 4:48:00 PM

Thursday, March 14, 2019 at 4:48:00 PM: <Josh Nash> If I did anything about it I wouldnt have a choice

Thursday, March 14, 2019 at 4:48:07 PM: <Josh Nash> Wife would make sure of that

Thursday, March 14, 2019 at 4:48:18 PM: <Nathan Jago> haha yep

End of chat saved on Thursday, March 14, 2019 at 4:48:21 PM

This exchange taken to be if Nash acted on his sexual desire his wife would castrate him

Charlotte How was on shift with Josh Nash and Nathan Jago on this day.”  16 (own emphasis added)

•  Allegation 4 – that the First Applicant stating “I’d like to pucker’ was a sexualised comment based on the following characterisation of the exchange:

“Friday, March 15, 2019 at 2:38:00 PM: <Josh Nash> I think she should wear her hair out everyday End of chat saved on Friday, March 15, 2019 at 2:38:04 PM

Start of chat saved on Friday, March 15, 2019 at 2:39:37 PM

Friday, March 15, 2019 at 2:39:37 PM: <Nathan Jago> I agree

End of chat saved on Friday, March 15, 2019 at 2:39:44 PM

Start of chat saved on Friday, March 15, 2019 at 6:22:37 PM

Friday, March 15, 2019 at 6:22:37 PM: <Josh Nash> Id like to pucker

End of chat saved on Friday, March 15, 2019 at 6:22:40 PM

Josh Nash comment taken to be that he would like to have sex with Charlotte How.

Charlotte How was on shift with Josh Nash and Nathan Jago on this day.” 17 (own emphasis added)

•  Allegation 5 – that the Applicants engaged in a conversation about wanting to perform oral sex on Ms How based on the following characterisation of the exchange:

“Start of chat saved on Monday, March 25, 2019 at 7:43:33 PM

Monday, March 25, 2019 at 7:43:33 PM: <Josh Nash> Lol

Monday, March 25, 2019 at 7:43:44 PM: <Josh Nash> I have wanted to eat her since i got here

Assumption reference to “her” is Charlotte How.

Nash comment taken to be that he would like to perform oral sex upon Charlotte How.

End of chat saved on Monday, March 25, 2019 at 7:43:46 PM

Start of chat saved on Monday, March 25, 2019 at 7:44:06 PM

Monday, March 25, 2019 at 7:44:06 PM: <Nathan Jago> me to 3 years ago

Jago agreeing that he too would like to perform oral sex upon Charlotte How.

Monday, March 25, 2019 at 7:44:38 PM: <Josh Nash> LAMO

Nash laughing re the agreement and length of time

Monday, March 25, 2019 at 7:44:57 PM: <Josh Nash> 3 years 5 months and 3 days ago Monday, March 25, 2019 at 7:48:53 PM: <Josh Nash> 271033569

End of chat saved on Monday, March 25, 2019 at 9:01:58 PM

Charlotte How was not on shift with Josh Nash and Nathan Jago on this night shift; however Charlotte How was on shift at handover.” 18 (own emphasis added)

•  Allegation 6 – that the Applicants made sexualised comments relating to wanting to be in a “friends with benefits” relationship with Ms How based on the following characterisation of the exchange:

“Start of chat saved on Tuesday, June 11, 2019 at 8:25:08 AM

Tuesday, June 11, 2019 at 8:25:08 AM: <Josh Nash> I know who I want to be friends with Tuesday, June 11, 2019 at 8:26:36 AM: <Nathan Jago> its our new game its no longer words with friends its friends with benefits

End of chat saved on Tuesday, June 11, 2019 at 10:51:01 AM

Charlotte How was on shift with Josh Nash and Nathan Jago on this day…Friends with benefits being the colloquial term for friends who have casual sex.

Start of chat saved on Tuesday, June 11, 2019 at 11:18:46 AM

Tuesday, June 11, 2019 at 11:18:46 AM: <Josh Nash> OMG I cant look at her

Tuesday, June 11, 2019 at 11:18:54 AM: <Josh Nash> Swap desks with me

End of chat saved on Tuesday, June 11, 2019 at 11:18:58 AM

Charlotte How was on shift with Josh Nash and Nathan Jago on this day.” 19 (own emphasis added)

[16] The Respondent submits that if its characterisation of the conversations was accepted there “can be no doubt that the comments would be considered inappropriate to be made in the workplace”. 20 The Respondent alleges breaches of its Code of Conduct;21 and Workplace Behaviour Policy.22

[17] The Respondent further submits that “even without a policy or procedure expressly prohibiting such behaviour, normative standards dictate that employees are aware or ought to be aware that such behaviour is unacceptable in the workplace and should not occur” and that, in any event, the Applicants’ conduct in having the conversations at work, during work time, using work resources and in circumstances where the colleagues whom were the subject of the discussions were present in the room and unaware of them amounts to a failure to comply with the Respondent’s Code of Conduct and is therefore a valid reason for dismissal. 23

[18] The Applicants deny the allegations above and submit that:

•  The comments in each of these communications has been “mischaracterised”; 24

•  They did not collude in responding to the allegations and there was no evidence to support this conclusion; 25

•  Ms How was aware of the conversation between the Applicants, has reviewed the transcript of all conversations and was not offended by their contents; 26

•  The investigation of the Applicants was “biased” due to issues and concerns raised by the Applicants in the workplace “frustrating” management; 27

•  It is unclear when the Applicants were last trained in the policies and procedures of the Respondent nor is it apparent which provisions were specifically breached and therefore cannot be relied on; 28 and

•  Both Applicants expressed regret and acknowledged the improper use of the Mitel system for personal conversations. 29

[19] The uncontested facts, insofar as they relate to the allegations, are as follows:

•  The Respondent operates a Mitel telephone system which links to a desk top system, allowing employees to dial numbers from their desktop and instant message people who are on the system; 30

•  Between 11 February 2019 and 19 June 2019, the Applicants conversed with each via the Mitel system; 31

•  The transcript of the conversations on Mitel between the Applicants is an accurate record of these conversations; 32

•  The conversations were held in work time, were conducted at work using work recourses; 33 and

•  Several sentences on the Mitel system between the Applicants did not elicit a response. 34

Allegation 1 – “cloning” allegation

[20] In addition to the uncontested facts referred to at paragraph [19] above, in relation to allegation 1, it is uncontested that the reference to “C” and “sparky” in the transcript on 11 February 2019 was a reference to the Respondents employees Ms Charlotte How and Ms Lettitia Hingston. 35

[21] The Respondent submits that the conversation is an inappropriate comment of a sexual nature about Ms How and Ms Hingston. 36 Further, the Respondent submits that the explanations proffered by the Applicants are “nonsensical and clearly constructed with a view to exculpating the Applicants of any responsibility for their actions”

[22] The Applicants submit that the references to “cloning” with respect to Ms How and Ms Hingston related to their expertise as operators. Further, the Applicants submit that they had become “friends” and “worked well” with Ms How and Ms Hingston, that they made “no derogatory comments about either Ms How or Ms Hingston” and that their conversations were “mischaracterised “ 37

[23] I have carefully reviewed the transcript of the discussion between the Applicants and the material before me. I am unable to conclude, on the balance of probabilities, that the Applicants were making sexually inappropriate comments about Ms How and Ms Hingston.

[24] Therefore, I conclude that this allegation is not substantiated and cannot constitute a valid reason for termination.

Allegation 2 – “rub down” allegation

[25] In addition to the uncontested facts referred to at paragraph [19] above, in relation to allegation 2, it is uncontested that the First Applicant was rostered to work with Ms How on the Saturday night following the comments made 14 March 2019. 38

[26] The Respondent submits that the conversation about “needing a rub down” on a future shift is an inappropriate comment of a sexual nature and that the Applicants seek to re-characterise the conversation as an innocent exchange related to the First Applicant being sore from playing laser tag with his family. Further, the Respondent submits that that the explanation lacks “credibility” and points to inconsistencies between the account of the First Applicant and the Second Applicant as to when the First Applicant became stiff and sore and the response of the Second Applicant with the words “haha”, which the latter could not explain. 39

[27] The Applicant submits that the Respondent seeks to mischaracterise the exchange and elevate it to one of a sexual nature rather than an innocent exchange. 40

[28] I have carefully reviewed the transcript of the discussion between the applicants, and the material before me. I am unable to conclude, on the balance of probabilities that the Frist Applicant was making sexually inappropriate comments about Ms How and that the second Applicant was complicit in the exchange.

[29] Therefore, I conclude that this allegation is not substantiated and cannot constitute a valid reason for termination.

Allegation 3 - “Game of Thrones” allegation

[30] In addition to the uncontested facts referred to at paragraph [19] above, in relation to allegation 3, it is not disputed that the communications took place on 14 March 2019, 41 that the reference in the transcript to watching “GOT” refers to the television show game of thrones which contains significant nudity and sexually explicit scenes42 and the reference in the transcript to the “unsullied” is to a group of characters in Game of Thrones who have been castrated.43

[31] The Respondent submits that the it could be “easily” accepted that the comments relating to this allegation were sexualised comments in the workplace that were inappropriate. 44

[32] The Applicants deny that the conversation involving fictional characters in Game of Thrones was sexually inappropriate and intending to denigrate Ms How. 45 The Applicants claim that the conversation ought properly be characterised as office banter and that the references to Ms How, were related to Mr Nash commenting that it would be awkward watching a show with nudity scenes with a female and that Mr Jago’s comments that Mr Nash join the “unsullied “ fictional characters who are castrated was a “joke”.46

[33] I have carefully reviewed the transcript of the discussion between the Applicants and the material before me. I have noted the concessions made by the Second Applicant that his comment “you mite (sic) have to join the unsullied so you can stop thinking about it” was a joke related to the First Applicant’s sexual urges and the First Applicant’s comment that “if I did anything about it I wouldn’t have a choice. Wife would make sure of that” related to the First Applicant saying that if he acted on his sexual urges and his wife found out, she would castrate him which they laughed about at the time. 47

[34] I have also taken into account the response of the First Applicant, that the Second Applicant had made a sexual joke and that he, the First Applicant, had replied in a similar fashion, that is, by making a sexual joke in return. 48

[35] On the basis of the above, I conclude on the balance of probabilities that the Applicants were engaged in a communication of a sexual nature containing sexual innuendo concerning Ms How.

[36] Therefore, I conclude that this allegation is substantiated.

Allegation 4 – the “pucker” allegation

[37] In addition to the uncontested facts referred to at paragraph [19] above, in relation to allegation 4, it is uncontested that the First Applicant accepts that the “pucker” comment was made in response to the Second Applicant requesting the First Applicant put the word “pucker” into a sentence and that the Second Applicant did not respond to the “pucker” comment. 49

[38] The Respondent submitted that this comment demonstrated the Applicants were using the Mitel system to make sexualised and other comments that they would not be comfortable verbalising. 50

[39] The Applicants submitted that the “pucker” comment was a reference to an ongoing game being played between the Applicants on “words with friends” and no reference was made to Ms Hingston or Ms How. 51

[40] I have carefully reviewed the transcript of the discussion between the Applicants and the material before me. I am unable to conclude, on the balance of probabilities that allegation 4 is substantiated.

[41] Therefore, I conclude that allegation 4 cannot constitute a valid reason for termination.

Allegation 5 – “Indian food” allegation

[42] In addition to the uncontested facts referred to at paragraph [19] above, in relation to allegation 5, it is not in dispute that on 25 March 2019, Ms How was working the night shift with the Applicants and that the Applicants ordered Indian food from the “Taj Mahal” restaurant located close to the Respondent’s workplace. 52

[43] The Respondent submits that the Applicants engaged in an inappropriate exchange of a sexual nature involving Ms How. 53

[44] The Applicants deny the exchange was related to Ms How and state that the reference to “eat her” was actually meant to read “eat here” as the letter “e” was mistakenly left out. 54

[45] I have carefully reviewed the transcript of the discussion between the Applicants and the material before me. I am unable to conclude, on the balance of probabilities, that the Applicants were making sexually inappropriate comments about Ms How and Ms Hingston.

[46] In coming to my conclusion, I have considered the Second Applicants concession during cross examination that he initially asserted that Ms How was not at work when the Applicants got the Indian take away. 55 I accept the Second Applicant’s explanation that at the time of being stood down he knew that the they were “in trouble” and “didn’t want her to be in the same boat”.56

[47] I have also considered the evidence of Mr Douglas that he recalled the First Applicant ordering food from the Taj Mahal previously. 57 The First Applicant agrees that Mr Douglas would on occasion work with the First Applicant, that cameras at the back door of the Respondent’s facility would allow someone to view who was coming in through the backdoor and that Indian food got delivered to the back door. The First Applicant disputes that he previously ordered Indian.58

[48] I conclude that this allegation is not substantiated and cannot constitute a valid reason for termination.

Allegation 6 - “friends with benefits” allegation

[49] In addition to the uncontested facts referred to at paragraph [19] above, in relation to allegation 6, it is not in contest that the comments were made following a verbal group discussion between employees including the Applicants and Ms How, 59 that the term refers to a casual sexual relationship between friends,60 that the First Applicant plays “Words with Friends” with Ms How and the Second Applicant and that the First Applicant and Ms How had been playing the game on 11 June 2019.61

[50] The Respondent’s submissions focus on purported inconsistencies in the evidence given by the Applicants and the implausibility of their evidence. 62

[51] The Applicants deny the allegation, with the First Applicant noting that the exchange that is the focus of the allegation was a personal joke between himself and the Second Applicant which had no reference to nor was derogatory of either Ms How or Ms Hingston. 63

[52] I have carefully reviewed the transcript of the discussion between the Applicants and the material before me. I am unable to conclude, on the balance of probabilities, that the Applicants were making sexually inappropriate comments about Ms How and Ms Hingston.

[53] Therefore, I conclude that this allegation is not substantiated and cannot constitute a valid reason for termination.

Findings as to Valid Reason

[54] I have concluded at paragraphs [30] to [36] above that allegation 3 made by the Respondent has been substantiated. I have determined that while the Applicants’ conduct was in breach of policy, specifically that they failed to “Act professionally” 64 and treat Ms How with “dignity, courtesy and respect”.65 However, this conduct was, in my view, not sufficiently serious, either on its own or collectively, to constitute a valid reason for termination.

[55] I have concluded at paragraphs [24], [29], [41], [48] and [53] above that allegations 1, 2, 4, 5 and 6 are unsubstantiated and therefore do not constitute a valid reason for dismissal.

[56] Consequently, on the material before me I am not satisfied that the conduct upon which the dismissal was based was significant to the extent that it could constitute a sound, defensible and well-founded reason for dismissal.

Notification of the reason for dismissal and given an opportunity to respond (s.387(b)&(c))

[57] On the basis of the material before me, I find that the Applicants were given notice of the reason for their dismissal and provided with an opportunity to respond. This weighs in favour of a finding that the dismissal was not harsh, unjust and/or unreasonable.

Any unreasonable refusal to allow the Applicant to have a support person present (s.387(d))

[58] The Respondent submits that the Applicants were invited to have a support person throughout the process and did in fact have a support person throughout the process. 66 The Applicants did not contest this aspect of the Respondent’s submission.

[59] I am satisfied that there was no refusal by the Respondent to allow the Applicants to have a support person present to assist at any discussions relating to their dismissal.

Warnings about unsatisfactory performance (s.387(e))

[60] In this instance the reasons for dismissal related to the conduct of the Applicants, rather than their performance, and so s.387(e) is not relevant.

Impact of size of the Respondent on procedures followed in effecting the dismissal and absence of dedicated human resource management specialists or expertise (s.387(f)&(g))

[61] The Applicants submitted that size the and expansive resourcing of the Respondent means that it cannot be excused for a number of procedural deficiencies in investigating the matter. 67

[62] The Respondent submitted that these are not relevant factors that impact on the process and procedure afforded to the Applicants. 68

[63] I have considered the submissions of the parties and consider this a neutral factor in this case.

Other relevant matters (s.387(h))

[64] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant. It is well established that a dismissal may be “harsh, unjust or unreasonable”, notwithstanding the finding that there is a valid reason for the dismissal. 69 The gravity of an employee’s conduct and the proportionality of dismissal to that conduct are important matters to be taken into account. The Commission should consider all the circumstances, and weigh the gravity of the misconduct and other circumstances telling against a dismissal being unfair with any mitigating circumstances and other relevant matters that might support the Applicant’s claim that the dismissal was harsh, unjust or unreasonable.70

[65] The Applicant submits that termination was disproportionate in circumstances where:

•  The Applicants offered to accept “any other” forms of punishment as an alternative; 71

•  There were sanctions available which would have properly punished the Applicant s and reinforced the importance of complying with policies; 72

•  The Respondent did not consider at all or alternatively did not properly consider alternative action to termination; 73

•  There are no relevant policies and procedures at the workplace regulating use of the Mitel system; 74 and

•  In the circumstances and in light of the severe consequences for the Applicants, termination was “manifestly disproportionate”. 75

[66] The Respondent submits that:

•  The Respondent had regard to and considered the responses to the investigation and potential disciplinary outcomes and there is no basis for the Applicants to submit that the Respondent failed to properly and genuinely consider the Applicants’ responses; 76

•  The Applicants do not dispute that the conversations were inappropriate if the Respondent’s characterisation is accepted and in circumstances where the Applicants failed to accept they had engaged in wrongdoing, a reference to a specific clause of a policy would not have made any difference; 77

•  There is no dispute between the parties that the Applicants had not previously received any prior warnings and were, in fact, good employees of the Respondent; 78

•  The Respondent was entitled to rely on the independent investigation in making findings about the Applicants’ conversations and in any event it is the Commission’s role to determine whether there is a valid reason for dismissal based on the evidence before the Commission rather than to step into the shoes of the employer for the purpose of an investigation; 79

•  Mr Smith provided clear evidence that he reviewed the full transcript after receiving the investigation report and formed his view on the inappropriateness of the conversations based on his review of the full transcript; 80 and

•  If the Applicants had, prior to the hearing, chosen to accept responsibility for their actions the Respondent would have accepted that the decision to terminate may have been harsh in the circumstances. 81

[67] I have taken into account my findings above that only allegation 3 has been substantiated which, while contravening the Respondent’s workplace policies, did not constitute a valid reason for dismissal. For these reasons, I am not satisfied that the Applicants’ conduct was of such a serious nature as to justify dismissal.

[68] The Applicants’ dismissals were disproportionate to the conduct that they engaged in.

[69] The Applicants submitted that the investigation conducted by Ms Jones was “biased”. Given my findings above in relation to valid reason, I do not consider it necessary for me to make a finding in relation to this submission.

[70] I have taken into account the length of service of the First Applicant and Second Applicant. 82 Further I have considered the personal circumstances of the First Applicant83 and the Second Applicant84 and that the dismissal will adversely financially impact the Applicants.85

Conclusion as to whether the dismissal was harsh, unjust and/or unreasonable

[71] Having considered each of the matters specified in section 387 of the Act, I find that the Applicants’ dismissals were harsh and unjust. In making that determination, I have weighed and considered all the matters in paragraphs [12] to [70] above, including my findings as to the Applicants’ conduct, which I have found constituted a breach of the Respondent’s workplace policies but did not constitute a valid reason.

[72] Therefore, I am satisfied that the Applicants were unfairly dismissed.

[73] Directions will be issued in due course relating to further submissions regarding the remedies in relation to each of the Applicants.

COMMISSIONER

Appearances:

Ms L. Archer of the CEPU for the Applicants

Mr R. Collinson of Edge Legal for the Respondent

Hearing details:

16 December 2019, 17 December 2019 and 29 April 2020

Printed by authority of the Commonwealth Government Printer

<PR720336>

 1   Witness Statement of Joshua Nash dated 12 November 2019 (Nash Statement) at [3], [61] – [62], JCN7.

 2   Witness Statement of Nathan Jago dated 13 November 2019 (Jago Statement) at [3], [54], NJ5.

 3   Email from Lee Archer dated 23 October 2019; Email from Sam Masters dated 25 October 2019.

 4   Nash Statement at JCN7; Jago Statement at NJ5.

 5   Nash Statement at [50], JCN4; Jago Statement at [42]

 6   Nash Statement at [59]; Jago Statement at [49].

 7   Nash Statement at JCN7; Jago Statement at NJ5.

 8   Nash Statement at JCN7; Jago Statement at NJ5.

 9   Nash Statement at [34]; Jago Statement at [27].

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

 11   [2013] FWCFB 619.

 12   Nash Statement at JCN7; Jago Statement at NJ5.

 13   Witness Statement of Mathew James Burden dated 28 November 2019 (Burden Statement) at Attachment 8, Attachment 9, Attachment 14, Attachment 15. A seventh allegation, identified as “Allegation 6” was initially put to the Applicants however this was not substantiated during the investigation and was not relied on by the Respondent as a basis for termination.

 14   Burden Statement at Attachment 8, Attachment 9. Confirmed in Attachment 14 and Attachment 15 that these allegations are relied on.

 15   Burden Statement at Attachment 8, Attachment 9. Confirmed in Attachment 14 and Attachment 15 that these allegations are relied on.

 16   Burden Statement at Attachment 8, Attachment 9. Confirmed in Attachment 14 and Attachment 15 that these allegations are relied on.

 17   Burden Statement at Attachment 8, Attachment 9. Confirmed in Attachment 14 and Attachment 15 that these allegations are relied on.

 18   Burden Statement at Attachment 8, Attachment 9. Confirmed in Attachment 14 and Attachment 15 that these allegations are relied on.

 19   Burden Statement at Attachment 8, Attachment 9. Confirmed in Attachment 14 and Attachment 15 that these allegations are relied on.

 20   Respondent’s Closing Submissions at [10].

 21   Respondent’s Submissions at [12]; Respondent’s Closing Submissions at [5(b)].

 22   Respondent’s Submissions at [12].

 23   Respondent’s Closing Submissions at [12] – [13].

 24   Outline of Submissions – Applicant dated 13 November 2019 (Applicant’s Submissions) at [26(a) – (b)].

 25   Applicant’s Submissions at [26(h)].

 26   Outline of Submissions – Applicant dated 11 February 2020 (Applicant’s Closing Submissions) at [8(e)]

 27   Applicant’s Closing Submissions at [8(q)].

 28   Applicant’s Closing Submissions at [8(f)].

 29   Applicant’s Closing Submissions at [8(g) – (k)].

 30   Table of Agreed and Disputed Facts (TOADF) Row 5.

 31   TOADF Row 6.

 32   TOADF Row 6.

 33   TOADF Row 7.

 34   TOADF Row 8.

 35   TOADF Row 10.

 36   Respondent’s Outline of Closing Submissions dated 2 March 2020 (Respondent’s Closing Submissions) at [17(a)].

 37   Jago Statement at [24], [46]; Nash Statement at [56].

 38  TOADF Row 11.

 39   Respondent’s Closing Submissions at [21] – [26].

 40   Jago Statement at [46(e)]; Nash Statement at [56(c)].

 41   Respondent’s Closing Submissions at [28(a)].

 42   TOADF Row 12.

 43   TOADF Row 13.

 44   Respondent’s Closing Submissions at [27].

 45   Nash Statement at [56(d)]; Jago Statement at [46(e)].

 46   Nash Statement at [56(d)]; Jago Statement at [46(e)(v)].

 47   Transcript PN540 – PN545.

 48   Transcript PN1293 - PN1306, PN1308 – PN1309.

 49   TOADF Row 14 – Row 15.

 50   Respondent’s Closing Submissions at [42].

 51   Nash Statement at [56(f)]; Jago Statement at [46(g)].

 52   TOADF Row 16 – Row 17; Nash Statement at [56(g)]; Jago Statement at [46(i)]; Respondent’s Closing Submissions at [43(a)].

 53   Respondent’s Submissions at [6(d)].

 54   Nash Statement at [56(g)]; Jago Statement at [46(i)].

 55   Transcript PN618.

 56   Transcript PN622 – PN623.

 57   Witness Statement of Kevin Douglas undated at [79].

 58   Transcript PN1333 – PN1344.

 59   TOADF Row 20

 60   Respondent’s Closing Submissions at [55(b)]. Applicant’s Closing Submissions at [8(n)].

 61   TOADF Row 19.

 62   Respondent’s Closing Submissions at [55] – [58].

 63   Nash Statement at [56(j)]; Jago Statement at [46(p)].

 64   Witness Statement of Bennie Smith undated at Attachment 3. Respondent’s Code of Conduct states “This means we:…Act professionally…”

 65   Witness Statement of Bennie Smith undated at Attachment 3. Respondent’s Workplace Behaviour Policy states “Everyone is expected to behave appropriately, act responsibly, and treat each other with dignity, courtesy and respect in accordance with this Policy”.

 66   Respondent’s Closing Submissions at [81].

 67   Applicant’s Closing Submissions at [14] – [18].

 68   Respondent’s Closing Submissions at [81].

 69   B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at [41].

 70   Ibid.

 71   Applicant’s Closing Submissions at [26].

 72   Applicant’s Submissions at [53].

 73   Applicant’s Submissions at [56].

 74   Applicant’s Closing Submissions at [19].

 75   Applicant’s Submissions at [57].

 76   Respondent’s Closing Submissions at [85(a)].

 77   Respondent’s Closing Submissions at [85(b)].

 78   Respondent’s Closing Submissions at [85(c)].

 79   Respondent’s Closing Submissions at [85(d)].

 80   Respondent’s Closing Submissions at [85(e)].

 81   Respondent’s Closing Submissions at [86].

 82   Nash Statement at [3], [63]; Jago Statement at [2], [54].

 83   Nash Statement at [64] – [73].

 84   Jago Statement at [55] – [62].

 85   Applicant’s Submissions at [58] – [60].