DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Willigen
v
AHG Services (VIC) Pty Ltd
(U2020/3225)

Application for an unfair dismissal remedy – whether workplace outburst and swearing was misconduct – valid reason for dismissal – application dismissed.

[1] Peter Willigen’s employment with AHG Services Pty Ltd trading as Daimler Trucks Laverton (AHG) was terminated with effect from 4 March 2020. Mr Willigen had commenced employment with AHG in October 2017 as a Sales Consultant selling FUSO trucks. His unfair dismissal application under the Fair Work Act 2009 (the Act) was made to the Fair Work Commission (the Commission) on 18 March 2020.

[2] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Those matters are whether the application was made within the period required in subsection 394(2); whether the person was protected from unfair dismissal; whether the dismissal was consistent with the Small Business Fair Dismissal Code; and whether the dismissal was a case of genuine redundancy. Neither party put forward that any of the other initial matters required such consideration. In relation to the elements within s.396, I find that Mr Willigen’s application was lodged with the Commission within the 21 day period for making such applications; that at the relevant time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[3] Evidence was given in the proceedings by Mr Willigen and three witnesses on behalf of AHG, Ms Caitlin Farmer AHG’s Human Resources Manager – Trucks, Mr Leo Morabito, its FUSO Trucks Sales Manager and Mr Kevin Purcell who was at the time the Dealer Principal at AHG Laverton.

[4] Mr Willigen appeared in the proceedings for himself and Ms Jacinda Davies, AHG’s National ER/IR adviser represented AHG. The proceedings were conducted using Microsoft Teams with video conferencing capability and after consulting with the parties the matter proceeded in the format of a hearing.

BACKGROUND

[5] From 20 October 2017 until 4 March 2020 Mr Willigen was employed by a branch of AHG as a Sales Consultant selling FUSO trucks from its sales and service facility at Laverton, Victoria. Mr Willigen was dismissed with immediate effect on 4 March 2020 for what is said by AHG to be misconduct. As a salesperson, Mr Willigen was one of a number of people employed at AHG Laverton, reporting to Mr Leo Morabito, the branches Sales Manager responsible for sales of FUSO trucks.

[6] As described to me in the hearing, the branch is physically large, consisting of a very long showroom building within an even larger campus, including an open-air sales yard and enclosed service facilities. Mr Willigen described the building as being very long, with perhaps 40 metres from one end to the reception area in the middle. 1

[7] At one end is a side entry door through which the employees enter and exit. Mr Willigen says the door is prone to slam shut loudly if caught by the wind. At the same end as the door are some offices for salespeople and other staff. Far down the building, in the middle are a reception counter and a customer lounge.

[8] On Wednesday, 5 February 2020, in late morning, Mr Willigen entered the showroom through the side entry door. Mr Morabito was in his office in the bank of offices towards one end of the showroom. Several other staff, including Carly Constantine, Lyndal Buchanan and Paul Bonnici, were elsewhere in the showroom, but apparently much further down the building, towards the centre.

[9] The staff heard the side entry door slam loudly followed by what they thought was Mr Willigen entering the building and speaking loudly or yelling. Why the door slammed, how loudly he was speaking and what he was alleged to have said are contested matters. Before entering the showroom, Mr Willigen had been assisting with a customer’s fuel cap problem and became frustrated.

[10] He entered the showroom through the side entry door and the door slammed shut after him because, he says, it has a habit of slamming shut, being a heavy door that “gets pushed around due to weather and the direction it faces”. 2 As he came through the entry door he exclaimed his frustration about what he had recently been involved in saying “this truck is bullshit and I’m sick and tired of fixing other people’s trucks and problems”, but not speaking at a volume where people in the sales lounge towards the centre end of the building could have heard.3

[11] Mr Morabito, his manager, heard Mr Willigen say other words and described him as “yelling and screaming”. The words heard by Mr Morabito were to the effect not of Mr Willigen being sick of fixing people’s “trucks and problems” but rather being sick of their “fucking problems”. 4

[12] Mr Morabito says he was concerned about what he heard. There is conflicting evidence about whether he raised his concerns with Mr Willigen on that day. His statement to the investigation said that he did not speak to Mr Willigen when he entered the showroom building since he was on the phone at the time and had other things to do. 5 His oral evidence was that he spoke to Mr Willigen on the subject at least once, and possibly two times on 5 February 2020, which is disputed by Mr Willigen.6 What was said by Mr Willigen on his entry to the building was heard by others in the building. The next day Mr Purcell and Ms Farmer learned of what occurred after Mr Morabito reported the situation to Mr Purcell, who in turn let Ms Farmer know.

[13] Having received the report of Mr Willigen’s alleged conduct, the Dealer Principal, Kevin Purcell, stood down Mr Willigen on full pay and advised him of certain allegations which would be investigated. The investigation was conducted chiefly by Ms Farmer AHG’s Human Resources Manager – Trucks and involved Mr Purcell and Mr Morabito as well. As part of the investigation Mr Willigen was asked to respond to a number of allegations and attend a meeting about those matters on 10 February 2020, the date which was later changed to 26 February 2020. The allegations Mr Willigen was asked to respond to were set out in a letter to him dated 6 February 2020:

“Allegations

The purpose of this letter is to set out allegations concerning your recent alleged conduct and to allow you an opportunity to respond to these allegations.

These allegations relate to:

Issue 1

•  On 5th February 2020 at approximately 11: 15am you were heard by several employees in the showroom as you came through the Fuso sales door, yelling and swearing loudly saying "f"**ing bullshit", "I'm sick of fixing other people's f***ing problems" and similar phrases.

•  You were yelling and this was heard by at least 4 other staff members, it was also noted that customers in the customer lounge heard you yelling as they paused their conversation.

•  If proven your conduct is a direct breach of the Company Code of Conduct, specifically the Respect for Others principle and Corporate Reputation.

•  It is noted that you have received a final written warning on 24th December 2019 specifically in relation to your conduct and inappropriate language.

Meeting on 10th February 2020

You are required to attend a meeting on Monday 10th of February 2020. The meeting will be held at 9:00am at Daimler Trucks Laverton with me and Caitlin Farmer - People and Safety Manager in attendance.

The meeting is for you to respond to the above allegations and to provide any information and evidence that you consider the company should take into account as part of its investigation into the alleged conduct. You are required to respond to all questions in a truthful and candid manner.

This information and all other information that relate to the investigation must remain confidential. Failure to comply with obligations of confidentiality may result in disciplinary action including termination.

You are entitled to bring a support person to this meeting if you wish.

You are stood down on full-pay during the investigation. This means that you are required to refrain from coming to the workplace and carrying out any work duties, unless directed otherwise, but must remain available to be contacted and to attend work when required. The pre-arranged meeting to discuss your refusal to comply with the Company's letter of expectations is cancelled and we will only discuss the allegations outlined in this letter with you on Monday 10th February 2020.

Contact with Company employees, customers and suppliers

As the allegations arise from complaints from other employees, I hereby direct you to not contact any employee of AHG unless you obtain my approval for doing so. This is to prevent claims that you have bullied or victimised any employee because of their involvement in making complaints against you, and to protect you from the appearance that you may be attempting to do so. Failure to comply with this requirement may result in disciplinary action including termination.

Likewise, if you are contacted by any employee in relation to our investigation into these complaints you must refrain from discussing these allegations with them. If we become aware that you have discussed these allegations with any company employee, whether before we meet or any time after that, we will take disciplinary action against you.

You are also directed to refrain from contact with all customers of the Company until further notice.

I confirm that the company is very concerned about your conduct. You were issued with a final written warning dated 24th December 2019 specifically in relation to inappropriate language and conduct.

Please note that subject to your responses on 10th February 2020, if these allegations are substantiated, disciplinary action may be taken against you by the company. Such action may include the termination of your employment.” 7

[14] Later in the month, on 21 February 2020, Mr Willigen raised a complaint with Mr Morabito about Mr Purcell on an unrelated matter, but nonetheless one which was of concern to Mr Willigen. The issue essentially related to concerns Mr Willigen had about the safety of the vehicle assigned to him as part of his employment. Mr Willigen complained that since having first raised the safety issue he believed that Mr Purcell held a grudge towards him. That grudge not only led to a written warning being issued to him in December 2019, but also to what he believed to be unfair treatment in February 2020 over the above conduct allegations. Mr Willigen also complained that Mr Purcell appeared to have applied a different standard to him regarding swearing in the workplace than he applied to himself and two other employees. 8

[15] The investigation meeting indicated above took place on 26 February 2020 with Mr Willigen attending on his own and AHG represented by Mr Purcell and Ms Farmer. Mr Willigen was provided with deidentified copies of statements from four employees who had overheard the events on 5 February 2020. Notes were kept from the meeting and provided to Mr Willigen the following day, who then marked up some relatively minor alterations to the contents and provided them back to the management representatives. In his response to the matters discussed in the meeting as well as the notes of the meeting, Mr Willigen provided a short-written response contesting a number of matters. He contested the underlying subject of some of the matters recorded as discussed in the meeting. In particular Mr Willigen strongly rejected the key accusation made against him of loudly swearing as well as arguing that the employee statements were suspect, since “all seem forced dialogue and all performed in Kevins office at times that I feel were prior to the incident occurring”. 9

[16] Following these exchanges, further correspondence was sent by Ms Farmer to Mr Willigen on 28 February 2020 informing him that its investigation of “allegations of inappropriate and misconduct in the workplace” had progressed to the point where AHG had formed views about Mr Willigen’s conduct and was considering the termination of his employment. Mr Willigen was requested to provide a further written response by the end of 3 March 2020 and to participate in a “show cause meeting” by telephone on 4 March 2020 which would involve Ms Farmer and Mr Morabito on behalf of AHG. The correspondence sent to Mr Willigen about these matters advised him that it was considering his termination of employment for five matters, the first four of which are not dissimilar to those put in the allegations letter, although differently worded. The fifth allegation, (e), was new:

“The Company has concluded its investigation and has formed the preliminary view that:

a. On 5th February 2020 you walked into the Daimler Trucks Laverton showroom and yelled 'f***ing bullshit" and "I'm sick of fixing other people's f***ing problems".

b. You have engaged in conduct that is inappropriate, unprofessional and compromises the professional reputation of Daimler Trucks Laverton.

c. You have engaged in conduct which is in breach of the Code of Conduct.

d. You have breached reasonable management directives and failed to comply with expected behaviours outlined to you when a first and final warning was issued on 24^th December 2019.

e. You have breached reasonable management directives contained in the letter dated 6^th February 2020 pertaining to the investigation not to make contact with customers while your employment is suspended, specifically you contacted Craig Luxton at Team Transport via email on 21^st February 2020 and Rita & Sons via text. You also failed to notify Kevin Purcell as instructed via email on 7^th February 2020 to notify him of the need for Kevin to make contact with these customers.

The Company is considering termination of your employment for the reasons outlined above. The Company requires you to provide a written response to the above and provide reasons why the Company should not terminate your employment”. 10

[17] Following the meeting on 4 March 2020, AHG resolved to terminate Mr Willigen’s employment and communicated that to him in a letter also provided to him on 4 March 2020. 11

LEGISLATION

[18] The legislative provisions relevant to this matter are set out in s.387 of the Act, which is as follows:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[19] Determination of whether the Applicants dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[20] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way: 12

“[28] The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

•  a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 13

•  a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 14

•  it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 15

•  the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 16 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

•  the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 17” (original references)

CONSIDERATION

The evidence generally

[21] As referred to at the start of this decision, evidence was given by Mr Willigen and three managers of AHG, Leo Morabito, FUSO Sales Manager, Mr Purcell, the Dealer Principal and Ms Farmer the Human Resources Manager – Trucks. The Respondent also included within its documentary material short written statements from three other employees, Carly Constantine, Lyndal Buchanan and Paul Bonnici, none of whom gave evidence in the hearing. Ms Buchanan had also sent Mr Morabito a short email about her concerns. Since none of the three gave evidence in these proceedings the weight I give to the material within those statements or Ms Buchanan’s email is limited.

[22] Of the witnesses who gave oral evidence, only Mr Willigen and Mr Morabito were present at the time of Mr Willigen’s exclamations on 5 February 2020. Mr Willigen’s evidence is, for the reasons referred to below, not considered by me to be an accurate account of what took place. Mr Willigen’s account of the critical matters on 5 February 2020 and other dates is not consistent with things in the broader context. In particular his account is not consistent with Mr Morabito’s, whose evidence I prefer subject to the qualifications set out below. In certain respects Mr Willigen’s evidence must be regarded as self-serving for exoneration purposes and I do not accept that he has been completely frank and candid about what occurred.

[23] Having observed that, Mr Morabito’s oral evidence suffered from matters of recall, saying in his evidence that he could not recall one proposition or another. Despite this, Mr Morabito struck me as largely truthful, but as someone whose habit was not to take a firm view on contentious matters and especially not on the matters within the province of this decision.

[24] Mr Morabito heard Mr Willigen’s outburst on 5 February 2020. He was on the phone at the time and says that he raised his concerns with Mr Willigen at least once on the day in question and perhaps twice. That evidence though is internally inconsistent and somewhat vague. It appears more likely that he raised the matter once with Mr Willigen, but not especially firmly or assertively and planned to raise the subject later on, but likely did not do so. While Mr Morabito’s oral evidence included that when Mr Willigen was walking past, he said, “"You've got to keep it down", that where I expressed my concern, "Keep your swearing down"”, 18 the overall evidence leads to the conclusion that this was a remonstration over the volume and content, and not actually a rebuke that the conduct itself was unacceptable and must stop immediately.

[25] Mr Morabito did not immediately or directly raise the subject with Mr Willigen even when another staff member, Ms Constantine approached him later in the day and asked what had happened and perhaps suggested it was embarrassing. Instead Mr Morabito’s actions were to inform Mr Purcell by email the following day after receiving another staff complaint, from Ms Buchanan, by email early on 6 February, as well as to say in a phone call with Mr Willigen early on 6 February that he had received an email complaint about the latter’s behaviour. Mr Morabito’s evidence left me with the impression that there is probably some truth to Mr Willigen’s contention that “the F word is used quite frequently by many people in the company, Kevin included, Leo included”. 19 He struck me as someone who, to some extent at least, appeared to be the relay for the views or decisions of others, perhaps Mr Purcell or Ms Farmer. Despite those concerns about Mr Morabito’s evidence I accept that he heard Mr Willigen’s outburst and that his exclamations included swearing.

[26] Mr Purcell’s evidence was firm and capable of acceptance and is to be preferred to that of Mr Willigen to the extent of any inconsistencies, although his evidence on the critical issues of 5 February 2020 is necessarily limited since he did not directly observe those events. Despite Mr Willigen’s assertion that Mr Purcell held a grudge against him which swayed his decisions in relation to Mr Willigen, the objective evidence does not support that contention and I do not find that such was the case.

[27] Of all the management witnesses, Ms Farmer gave the most direct and unembellished evidence and again I prefer her evidence to that of Mr Willigen to the extent of any inconsistency. Matters referred to within her evidence cause me to hold the view that she was to a very significant extent the person who, having learned of the events of 5 February 2020, considered them to be unacceptable and requiring of Mr Willigen to be held to account. Although Ms Farmer was not present at the time of the events on 5 February 2020, she was there on 6 February 2020 and was involved in the investigation.

Application of the s.387 criteria - whether dismissal harsh, unjust or unreasonable

[28] I will deal with each of the criteria within s.387 in turn.

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

[29] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship:

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, common sense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 20

[30] Where an employee has been dismissed without notice (summary dismissal) for serious misconduct the Commission may find that, although there was a valid reason for the dismissal, the dismissal was harsh because summary dismissal was a disproportionate response. Where the conduct involves serious misconduct, the principle established in Briginshaw v Briginshaw 21 may be relevant. While an “elevated standard”,22 the standard of proof remains the balance of probabilities but “the nature of the issue necessarily affects the process by which reasonable satisfaction is attained” and such satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion”.23

[31] It is not the Commission’s role to “stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court.”²⁴ However, I “must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.”²⁵

[32] For there to be a valid reason related to the Applicant’s conduct, I must find that the conduct occurred and justified termination.²⁶ Further; “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. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 27

[33] It has been said by the Full Bench that “the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 28 The Full Bench has also found there is not a “clear rule of law defining the degree of misconduct justifying summary dismissal”,29 and that it “is certainly well established that, for the purposes of s.387(a), it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason)”. Further:

“[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd  Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice” and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. “Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd Buchanan J said:

“[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful misconduct’ are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term ‘serious misconduct’ is under consideration an evaluation of what conduct represents ‘serious’ misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).”” 30 (endnotes omitted)

[34] The direct evidence is equivocal about whether the side entry door slammed loudly after Mr Willigen and that he caused it to slam, with his evidence being that it routinely slammed shut of its own accord. The evidence though plainly supports a finding that late in the morning or early in the afternoon of 5 February 2020, Mr Willigen was exclaiming things in the showroom loudly enough for Mr Morabito and likely other people to hear the tone and key words, if not the full statement. Mr Morabito’s oral evidence is that Mr Willigen had been doing a handover on behalf of another salesperson. Mr Morabito was on the phone, but he could see and hear the outburst because it was “basically in front of me” 31 and “that's when he yelled and came through the side door and yelled and - or frustration about the truck not being right and sick and tired - sick of doing other people's jobs and other - fixing other problems and there were swear words in that obviously”.32 Mr Morabito’s evidence is that the things said by Mr Willigen on 5 February 2020 concerned him and that he raised his concerns with Mr Willigen twice on 5 February 2020 and that he also received the first complaint from another employee later that day. His evidence in response to questions from me included the following:

“All right, tell me exactly what occurred and what you heard said, exactly?---Okay.  So when I - I was on the phone, I was obviously on the phone to another customer.  He's opened up the door, he's yelling - - -

How?---"This is effing bullshit, I'm sick and tired of fixing other sales people's problems.  I've got another customer waiting", and he was walking to his office.  So he walks past my office, walked to his office and then he walked back out, back out to the side door to go and obviously finish off what he had to do.  But I was on my phone, I was on the phone during that time.

Did any of that cause you concern?---Yes, it did because I could hear everything - I could hear the frustration, I could hear him and, like I said, it echoes in the dealership and that concerned me because it wasn't professional manner, it wasn't something that we pride ourselves on, in the way we run our business.  After when I hung up that's when I stopped and I said, "What's wrong, Peter?  What happened?  What can I do?", and that's when he went on about, "I'm sick and tired of doing other salespeople's - fixing other salespeople's issues and problems, I've had enough of this place.  This makes me sick".  He just kept going on.  I said, "Peter, just calm down".  "I've got to go, I've got another customer here that I've got to deal with", and he walked straight out because he had another customer to attend to as well.  So I didn't have an opportunity, I tried my best to try and calm him down, didn't have the opportunity because he was back and forth, trying to complete another - or see another customer of his at the same time.

Did you do anything about that, later on in that day?---We did briefly speak to say again what happened and I tried to get an understanding of what the case was, but Peter was so frustrated and I think I had a client myself come in and we didn't really get a time to sit down and view it until after on that day, when the complaints from the other - the other employees about what happened down there, what was going on.  Then it was towards the end of the day and either myself, I left early, or Peter, I can't recall, but he wasn't in the office later in the day to sit with him and chat until the next day, I think it was, from what I can recall.” 33

[35] When Mr Morabito was asked about Mr Willigen’s formulation of what was said, that: “this truck is bullshit and I'm sick of fixing other people's trucks and problems”, Mr Morabito did not immediately reject the Applicant’s phrasing, but did make the point in response to a question from me that higher level swearing was involved in what he heard:

“I've heard evidence, from Mr Willigen, this morning, that he did not say the words that you attribute to him but, instead, when he came through the door he said words to the effect of, "This truck was bullshit and I'm sick of fixing other people's trucks and problems", could that be the case, that he said those things? When - Commissioner, when Peter was swearing his words go so quickly when he speaks and amongst that I heard "Bullshit", I heard - "Fucking problems", I heard a number of things, "Sick of salesmen. Sick of fixing salespeople's - other people's problems". I mean you've got to - I'm on the phone at the same time so I'm hearing - I've got a conversation going on, on the right hand, and then he's yelling and screaming and going on, on the other end. So, yes, a number of different - when I was speaking this morning, "Bullshit" was one of the words I heard, "Fucking" is another word I heard, amongst trying to be on another conversation as well.” 34

[36] Later in his oral evidence Mr Morabito confirmed in response to a question from me that the words attributed to Mr Willigen by him in his initial statement to Mr Purcell are the ones he heard spoken; “I’m sick of fixing other people’s fucking problems”. 35

[37] Mr Morabito’s recollection of when things occurred on 5 February 2020 lacked initial precision, however he settled on the following:

•  When Mr Willigen came through the door frustrated, and may have said then that he was “sick of fixing other people's fucking problems”, 36 Mr Morabito put his phone to his chest and said “"Quiet, I'm on the phone", and "What's going on?"”.37 Mr Morabito recollected he expressed his concern to Mr Willigen about the exclamation because “when he was walking past, I said, "You've got to keep it down", that where I expressed my concern, "Keep your swearing down"”.38

•  About 10 or 15 minutes later, after Mr Willigen had gone out of the building and then in, Mr Morabito asked him “what happened, you know, "What happened? What's happening with the situation", and he said - that's when he said he was sick of fixing other people's problems.” 39 Mr Morabito also offered this further recollection about the conversation:

“It was like a quick conversation, in relation to what happened, and really it wasn't, "Sit down, let's go through it, let's understand". It was like walking past me and asking me - and trying to grab him to understand what happened”. 40

•  In the early afternoon, Mr Morabito walked past the reception desk and the receptionist, Carly Constantine, asked him what had happened. 41

[38] Mr Willigen disputed that Mr Morabito spoke with him twice on 5 February 2020, arguing that the first interaction was brief, immediately after which Mr Willigen spent a considerable time, around an hour to an hour and a half, with a customer and that “I then did not speak to Leo about anything that happened that day because, as he said earlier, he chose to hand it over to Kevin when he got complaint of it that day and the next day and he never spoke to me about it again”. 42 Mr Morabito conceded that the second interaction may either not have occurred or have been short. After hearing Mr Willigen’s contention that the second interaction never took place, Mr Morabito was asked:

“THE COMMISSIONER:  Could that have been the case?---That may have been the case, Commissioner.

So there may not have been the second conversation?---That second conversation, like I mentioned earlier on, when he was walking past to go out to see his - to see his client.  Trying to get an understanding because he was rushing out.  (Indistinct) coming in, and rushing back out.  That was my second conversation, trying to get him to calmly understand exactly what happened and just to really calm in down.” 43

[39] Mr Morabito’s evidence on the matter of the number of his interactions with Mr Willigen on 5 February 2020 is not precise. Beyond the number of interactions, it cannot be discerned that he meaningfully remonstrated with Mr Willigen. He may well have indicated he was on the phone and asked what the problem was, and he may even have said words to the effect that Mr Willigen needed to “keep it down” or “keep your swearing down”, however what was said does not allow a finding that he gave a strong rebuke to Mr Willigen on the day about his behaviour.

[40] While those matters lack clarity, it is clear that the receptionist, Carly Constantine, queried Mr Morabito about what had happened later on the same day, and that he apologised to her about the incident and undertook to “deal with it”. Ms Constantine was at the time of the incident a considerable distance from Mr Willigen and Mr Morabito. Her short written statement to Mr Purcell, provided to him as part of the company’s investigation and which was not the subject of direct oral evidence in these proceedings, included that she was at the main reception desk and that there were customers seated in the lounge area when she heard and saw Mr Willigen. She thought what took place was embarrassing and that the customers also heard the incident and were uncomfortable. Even though Mr Morabito undertook to deal with Ms Constantine’s complaint, there was nothing further done by him until the following day after receiving an email from Ms Buchanan. At that time Mr Morabito referred the email to Mr Purcell, and when Mr Willigen called him about a sales opportunity he said to Mr Willigen merely that he had received an email complaint.

[41] Ms Constantine believed the events took place at a time “sometime during late morning, before lunch”. Her colleague, Ms Buchanan, who also complained directly to Mr Morabito early on 6 February 2020, the day after the incident, placed the events at around 11.15 AM and heard yelling and swearing but did not see Mr Willigen. Mr Bonnici placed the time at approximately 11.30 AM and also heard but did not see Mr Willigen, and heard him swearing. Again, neither Ms Buchanan nor Mr Bonnici gave evidence in these proceedings.

[42] Although I do not place much weight on the three statements of Ms Constantine, Ms Buchanan or Mr Bonnici, neither do I ignore them.

[43] The following day Mr Morabito sent an email to Mr Purcell. The email is not before the Commission but appears at least to consist of him relaying to Mr Purcell the email he had received from Ms Buchanan early on 6 February 2020. 44 At Mr Purcell’s request an investigation was commenced, which involved Ms Farmer. The investigation was somewhat rudimentary, consisting of interviews with Mr Morabito, Ms Constantine, Ms Buchanan and Mr Bonnici. The investigation procured the statements referred to above; Ms Constantine saw Mr Willigen and heard him swearing loudly; Ms Buchanan and Mr Bonnici heard but did not see him. Mr Morabito heard and saw Mr Willigen and reported a basic outline in his statement but did not include in that statement any of the sequencing referred to in his oral evidence about when he says he spoke with Mr Willigen or what was said. In fact, those parts of Mr Morabito’s oral evidence which endeavour to put forward that he spoke with Mr Willigen the same day of the swearing and express his concern are in conflict with his statement to the investigation, in which he said:

“Peter went to his own office, dropped something there and then went past me towards the customer lounge to collect his customers.

I did not speak to Peter about what he had been saying when he entered the showroom. I had too many other things to focus on at the time.” 45

[44] The investigation in turn led to the allegations letter dated 6 February 2020 being issued and Mr Willigen being stood down with pay.

[45] In his written statement to Mr Purcell, Mr Morabito stated Mr Willigen called him on the morning of 6 February 2020:

“Peter called this morning about a separate sales opportunity, and during that conversation I did say to him that I have received an e-mail complaining about his behaviour yesterday. Peter replied saying, "Oh it's about the swearing again".” 46

[46] Mr Willigen did not directly deny that this interaction took place, but did say:

“That swearing comment was nothing to do with 5 February, that was just general conversation within the business. I was perplexed that he even had a complaint to come to me with, so that's what that was in relation to, nothing to do with what we're talking about [in the hearing]” 47

[47] Mr Willigen attended a disciplinary meeting with AHG after its allegations were put to him, with the meeting taking place on 26 February 2020. Before the meeting took place Mr Willigen reactivated to Mr Morabito a complaint that he had made in 2019 about the safety of the company vehicle issued to him as well as connecting the product of that complaint with AHG’s investigation of the February incidents and concerns he had about Mr Purcell’s views of him. Mr Willigen’s correspondence put forward that he had repeatedly endeavoured to make the company aware of his concerns about the vehicle issued to him and that those concerns were ignored by Mr Purcell. He believed that since that time Mr Purcell had held a personal grudge towards him. He did not believe that four people had lodged complaints with AHG about his language or that his volume of speaking was at a level allowing others to have accurately heard what he said and that the language he had been accused of using did not occur. The correspondence then argues somewhat contradictorily that Mr Morabito was not disturbed by his words which in any event are used by many other staff members in the course of their day:

“Leo you were not disturbed on this day by my words, and have since stated that you want me on your sale team. So I find it strange as to why Kevin should have such issue with me if you do not. Surely if my manager has no issue and wants me around, then the DP would be of the same thought. Therefore I can only assume Kevin has a personal issue with me due to the car incident. This creates undue stress that I shouldn’t have to endure at work, it effects attitudes and performance when you feel this way from your superiors, especially after it has been proven that your health and safety is of little concern.

I find it quite convenient that Kevin sees it fit to give me written warnings in quick succession for use of language, language that many staff members including himself use frequently in their everyday work activities. Why should I be singled out for similar language when plenty of others are not. This is highly unfair and I won’t be treated unfairly if others are not.” 48

[48] The correspondence to Mr Morabito also took issue with a warning issued by AHG to Mr Willigen in December 2019 and referred to several earlier matters, including these:

•  In October 2019 Mr Willigen raising concerns initially with Mr Morabito and then later with Mr Purcell about the safety of an LDV ute provided to him. It is fair to say that Mr Willigen’s complaint is in full and frank terms addressing what he saw as safety problems of the vehicle. After the matter was escalated to him, Mr Purcell remonstrated with both the content and the tone of Mr Willigen’s complaint with it eventually been resolved in December with the LDV vehicle being changed to an Infiniti vehicle.

•  In mid-to late 2019 Mr Willigen was continually frustrated with what he saw as errors made by the company and its calculation of his commission entitlements. The matters came to a head in December 2019 when Ms Farmer overheard a phone conversation between Mr Morabito and Mr Willigen. The company formed the view that Mr Willigen had used threatening and aggressive language towards Mr Morabito during the phone call and had also sent “intimidating and threatening” text messages to Mr Morabito on 11 December 2019.

[49] The latter circumstance led to a warning being issued by Mr Purcell to Mr Willigen on 24 December 2019, the text of which includes the following:

“Dear Peter,

WARNING RELATING TO YOUR CONDUCT

Further to the counselling session I conducted with you on 23 December 2019 with Caitlin Farmer- People and Safety Manager present, I confirm that you are being issued with a Final Written warning as a result of the misconduct I discussed with you during that session.

To summarise, my primary concerns are:

•  On Thursday 12th December 2019 you spoke to Leo Morabito on two occasions via phone in an aggressive manner where you raised your voice and used swear words including f**k and c**nt. The way in which you spoke to Leo was highly offensive, threatening and inappropriate.

•  You sent a text message on 11th December 2019 to Leo Morabito that stated "there will be bloodshed everywhere" and also used inappropriate language by swearing in multiple text messages on 12^th December 2019.

•  The company has found that the above allegations are proven.

•  This conduct is a breach of the Company Code of Conduct, specifically the Respect for Others principle.

You have previously been counselled on 18th June 2018 in relation to your conduct and have been warned that any further instances of unacceptable conduct may result in disciplinary action being taken against you. Whilst you state the colleague who you spoke to inappropriately was wrong the document issued to you clearly stipulates the requirements surrounding your conduct moving forwards.

As discussed with you, I require you to improve your conduct and you have committed to improving your conduct in line with the requirements of the Code of Conduct (copy attached) and ensuring you communicate with colleagues in a respectful and courteous manner at all times. If you have any queries or concerns you must communicate these and raise these in a respectful and courteous manner and escalate if necessary.

Please be advised that if you engage in any further instances of misconduct further disciplinary action may be taken against you, up to and including the termination of your employment.

Should you have any questions about this warning or anything set out above, please do not hesitate to contact me. Otherwise, please confirm you have received, read and understood this letter signing at the bottom of the page and returning a copy to me by 31 December 2019.

Regards,

Kevin Purcell
Dealer Principal
Daimler Trucks Laverton” 49

[50] The above refers to an earlier counselling in June 2018. While the justification of the counselling is disputed by Mr Willigen, 50 it is noted that the counselling referred to him being involved in a disagreement in which he swore. The June 2018 correspondence referred to AHG’s future expectations of Mr Willigen including that in future he comply with its Code of Conduct, which was attached and that he communicate with colleagues respectfully and courteously.51

[51] AHG’s conduct allegations were discussed at the meeting held on 26 February between Mr Willigen, Mr Purcell and Ms Farmer. The notes of the meeting disclose that the February allegations were discussed, and that Mr Willigen denied the substance of them. In particular the notes indicated the following narrative about the events on 5 February:

“On the 5th February 2020 PW was assisting with a customer issue pertaining to fuel cap and key, this was Suba's customer and Leo asked PW to assist, prior to his own customer coming into the dealership where PW was hoping to sign him up

PW states the customer had an issue with the fuel cap and key, which required time to sort out, the customer wanted the issue sorted out at the time, PW needed some time to work through the issue and organise a resolution.

PW was frustrated that he needed to sort out the issue.

PW states when he had finished with Suba's customer he went to find his customer who was standing in between trucks smoking

PW states he was frustrated when he walked into the showroom through the side door and said 'this truck is bullshit and 'I am sick of dealing with other peoples truck problems'

Leo said to PW 'what's going on' as he overhead, PW said 'massive problems with this truck' [with a handwritten note “CAN’T RECALL”]

PW states he is unsure how anyone in the dealership would have been able to hear his comment "this truck is bullshit and 'I am sick of dealing with other peoples truck problems' as he said this in conversational tone and was not yelling.

PW denies saying the F word when he said "this truck is bullshit and 'I am sick of dealing with other peoples truck problems'

PW states that emplovees do swear in the dealership

CF provided PW with the 4 statements from employees who overhead the incident, PW denied that he used the F word. [with a handwritten note “ALL 4 SEEM FORCED. SEE NOTES ATTACHED”]

CF and KP explained it is important for PW to understand the concern is around the context and tone, not only the use of swear words [with a handwritten note “SEE NOTES ATTACHED TO EMAIL.”]

CF confirmed that PW is representing Daimler Trucks Laverton and as such his conduct does need to be professional and appropriate, it is a showroom where customers are.

PW confirmed that he had not asked Leo or anybody else to help him with Suba's customer so that he could focus on his own waiting customer. [with a handwritten note “LEO ASKED ME (??) TO HELP (??) AS HE WAS BUSY. MY CLIENT HAD NOT YET ARRIVED.”]” 52

[52] The handwritten comments made by Mr Willigen on the meeting notes do not substantially contradict the record made of the matters that were discussed in the meeting, but reinforce to AHG that the substance of some of the allegations at least were denied by Mr Willigen. In addition to making handwritten comments on the notes Mr Willigen provided a short response by email, arguing that he contested whether four employees had in fact come forward to complain about him; denying the formulation of the allegation made about what he said on the day in question; and that in any event others use the same language in the workplace with impunity. It is to be noted in respect of the statements from four employees referred to within the correspondence that Mr Willigen had been provided in the meeting on 26 February 2020 with the deidentified copies of each statement. Mr Willigen’s response included the following:

“4 statements all seem forced dialogue and all performed in Kevins office at times that I feel were prior to the incident occurring. If 4 staff members came forward, surely they would have done so via email. Why are those emails not supplied instead of typed statements. This is all very suspicious to me.” 53

[53] Following this meeting Mr Willigen was provided with the “show cause” correspondence referred to above and was invited to provide a written response by 3 March 2020, however no additional material was provided by him to AHG. The final meeting with Mr Willigen took place on 4 March 2020 as scheduled. In addition to Mr Willigen the meeting involved Ms Farmer and Mr Morabito. The employer response form submitted in these proceedings indicates about the meeting that Mr Willigen restated he felt he was being unfairly treated by Mr Purcell as well as further questioning the authenticity of the witness statements obtained during the investigation into the alleged misconduct. 54 The same document records that the decision to terminate Mr Willigen was taken jointly by Ms Farmer and Mr Morabito.55 The termination of employment letter provided to Mr Willigen the same day as the meeting advised him that his employment was terminated with effect from that day, 4 March 2020. The letter advised his dismissal was for reason of “repeated instances of misconduct” and that he would be paid three weeks’ pay in lieu of notice. The correspondence also advised that in making this decision to terminate his employment AHG had considered the length of his service, his responses and that a first and final warning was issued to him on 24 December 2019 for the conduct and behavioural matters referred to above.

[54] As previously noted the termination letter relied upon five behavioural and conduct matters for the decision to dismiss with one of the matters not being relied upon in these proceedings (relating to an allegation that Mr Willigen contravened a direction not to make contact with the company’s customers during his suspension from the workplace). The four matters relied upon in the hearing by AHG are as follows, (with the words of the matter not relied upon in these proceedings struck out):

“a. On 5th February 2020 you walked into the Daimler Trucks Laverton showroom and yelled 'f"**ing bullshit" and "I'm sick of fixing other people's f"**ing problems"

b. You have engaged in conduct that is inappropriate, unprofessional and compromises the professional reputation of Daimler Trucks Laverton.

c. Behaviour in the workplace which constitutes a breach of the Code of Conduct

d. Repeated failure to abide by reasonable management directives including the directive to not make contact with customers during your suspension from the workplace

e. Failure to comply with the expectations outlined in a first and final warning issued to you on 24th December 2019” 56

[55] The core of the matters relied upon by AHG are that on 5 February 2020 Mr Willigen entered the showroom exclaiming loudly, amongst other things, the words “fucking bullshit” and “I’m sick of fixing other people’s fucking problems”. Mr Morabito was the only AHG witness in these proceedings who directly heard and saw what occurred. The statement he provided to Mr Purcell the day after the incident does not refer to the words “fucking bullshit” but does refer to having heard “I’m sick of fixing other people’s fucking problems”. Unfortunately, his oral evidence is not to be especially relied upon for a determination of the words actually said by Mr Willigen.

[56] The evidence given, extracts of which are set out above, was general and poorly formed and he had to be prompted as to whether he stood by the words included in his original statement to Mr Purcell. In examining that statement, comparing it with his oral evidence and the verbiage of the other three statements given to be investigated, it is likely that the words in the statement were a summary prepared by another person of the things Mr Morabito said to them on 6 February 2020. It is doubtful that he was challenged to any great extent as to what he said at the time and, given the impression I have received of his oral evidence, I am of the view that his statement from 6 February 2020 is to be taken only as an approximation of what he saw and heard. The 6 February statement does not deal with the number or content of Mr Morabito’s claimed interactions with Mr Willigen on 5 February and in fact contradicts that there were any of substance about what occurred by stating he “did not speak to Peter about what he had been saying when he entered the showroom. I had too many other things to focus on at the time”. 57

[57] The finding by AHG that upon entering the building on 5 February 2020 that Mr Willigen “yelled ‘f***ing bullshit’” is not supported by any of the contemporaneous material before the Commission and first appeared in the allegations letter of 6 February 2020. It appears to have come from the written statement given to Mr Purcell by Ms Buchanan who reported that she “distinctly heard the words “Bull fucking shit”. 58 Mr Morabito’s oral evidence though records Mr Willigen as having yelled when he entered “this is effing bullshit, I'm sick and tired of fixing other sales people's problems”59 and:

“Commissioner, when Peter was swearing his words go so quickly when he speaks and amongst that I heard "Bullshit", I heard - "Fucking problems", I heard a number of things, "Sick of salesmen. Sick of fixing salespeople's - other people's problems". I mean you've got to - I'm on the phone at the same time so I'm hearing - I've got a conversation going on, on the right hand, and then he's yelling and screaming and going on, on the other end. So, yes, a number of different - when I was speaking this morning, "Bullshit" was one of the words I heard, "Fucking" is another word I heard, amongst trying to be on another conversation as well.” 60

[58] Despite holding concerns about the precision of Mr Morabito’s evidence I do not find that his evidence is not to be relied upon entirely. I accept from the evidence he gave that Mr Willigen entered the showroom and was speaking sufficiently loudly that not only could Mr Morabito hear what was being said but so too could others much further down the building. The evidence does not disclose any apparent reason as to why Mr Willigen would have been talking to himself other than being frustrated about the fuel cap matter. The accumulation of Mr Morabito’s evidence, as well as the matters established by the investigator would suggest that Mr Willigen in fact did enter the showroom and was angry and was using offensive words as part of his frustration.

[59] There being no direct evidence on the subject I am unable to find that the words he spoke included “fucking bullshit”. In relation to the second string of swearing in AHG’s finding, Mr Willigen conceded he swore, but used a different formulation, namely “this truck is bullshit and I’m sick and tired of fixing other people’s trucks and problems” and refuted the possibility that he used the phrasing “sick of fixing other people’s fucking problems”. In the overall context of the matter I do not accept this as reliable evidence and is simply an endeavour by Mr Willigen to avoid responsibility for his conduct on the day in question.

[60] In conceding he swore initially, but not to the full extent contended by AHG Mr Willigen must also be seen as accepting that Mr Morabito heard him enter the showroom and speak to himself; loudly enough for Mr Morabito to hear him speaking from within his office, when Mr Willigen was outside the office. Plainly enough, this was not the kind of frustrated but indistinct muttering one may do after an unsatisfying exchange of some kind. At the minimum, it was loud enough for someone outside of an office to be heard by another inside an office and on the phone. In relation to AHG’s finding about what was said by Mr Willigen, only the words spoken are in contest, and that they were overheard by people at the far end of the showroom and were offensive or inappropriate.

[61] The words themselves are in ample use in the community. The Macquarie Dictionary labels both as “colloquial (taboo)” words indicating either “the word itself may give offence essentially because of its taboo nature [or the] label is also used if there is a particularly crass and offensive meaning given to a usually neutral word”. 61 Each may be used as a noun or a verb and may be used as an interjection or, as in this case, an adjective intensifier. It is the intensification which may be regarded as a matter of offence.

[62] Mr Willigen’s various statements to AHG managed to both deny that he spoke the words in question but also put forward that in any event the words were not offensive and frequently used by others in the workplace. What emerges from the juxtaposition is that Mr Willigen apparently wishes to deny having spoken the words because to admit them would cause him to be in trouble, but to then rationalise that even if he had there is nothing offensive in what was said. The totality of the evidence, including that given by Mr Willigen as well as Mr Morabito is that there was in fact shouting involving swearing on 5 February 2020. The apparent volume and tonality of the swearing intensified the words spoken beyond what may be regarded as acceptable and made them offensive.

[63] In any event the formulation put forward by Mr Willigen, with a similar meter and cadence as that alleged, needs to be seen together with the fact that he was demonstrably angry or frustrated and that he was speaking loudly enough for his words to be heard at least by Mr Morabito who was in proximity to him. The investigation conducted by AHG concluded that what was said by Mr Willigen was also heard by at least three other staff much further down a very long building. The conclusion reached by AHG in its investigation is consistent with the tenor of Mr Morabito’s evidence. While I have reservations about the precision of his evidence I accept the basics of it; that there was a loud entry to the showroom by Mr Willigen; that he was exclaiming in frustration about something; and that part of his exclaiming was swearing. I do not find that he used the formulation of words attributed to him, ultimately stemming from Mr Morabito’s initial statement to Mr Purcell.

[64] In making these findings, I have taken into account a number of the other circumstances of Mr Willigen’s employment which lend support to the likelihood that his outburst was loud and used intensified swearing.

[65] Those circumstances include the material about which Mr Willigen was warned in December 2019. That evidence indicates Mr Willigen is frustrated easily and when frustrated has a propensity to aggressively put his position. The December matters were at the least to do with Mr Willigen’s belief that commission payments he was due had been incorrectly calculated by AHG. When he expressed that belief to Mr Morabito it was clear he was angry. He initially sent three text messages to Mr Morabito as follows: 62

•  “My pay needs to be correct this week or there will be bloodshed every where. Cant be that hard to get it right surely” (sent Wednesday 12.19 PM)

•  “Need to talk comiisin errors asap, all fukt up again, wont stand for it. Fukn sick of it” (sent Thursday 12.08 PM)

•  “Nothing personal against you I'm sorry you're copping the brunt of it but I absolutely will not fucking stand for this for one second I'm only fighting for what is rightfully mine” (sent Thursday)

[66] After receiving the second text, Mr Morabito spoke to Mr Willigen by phone and described him as “yelling and using swear words”. 63 Mr Morabito took the call on a speaker-phone in his office, and the call was overheard by Ms Farmer who was in the office next door. Ms Farmer heard the other person on the call swearing64 and was concerned about “the yelling, threatening and intimidating manner” used by the person talking to Mr Morabito.65 Mr Morabito’s evidence about the call was that it included swearing and that he terminated the call because he would not accept the way Mr Willigen was speaking to him.66

[67] The third of the text messages was apparently sent after the phone discussion, with Mr Willigen putting the following both about its timing and purpose:

“I would have sent that to Leo after the phone conversation that Caitlin Farmer overhead.  I've obviously rang up Leo, frustrated about the commission structure being wrong again, or commission payment being wrong again and I've then obviously hopped off the phone and I do recall Leo saying, okay Peter, no worries, I understand, I'll look into it, I'll get it fixed for you.  I then hopped off the phone, cause I remember I was annoyed and I've sent Leo that text, saying sorry mate, I know you're copping the brunt of this, wish I didn't have to do it or whatever words I used, but I just need it fixed. ” 67

[68] While Mr Willigen did not mean the reference in the first text to there being “bloodshed” to be taken literally if the commission payments problem was not resolved, 68 Mr Morabito took it as a “threat not a joke”.69 While I accept the phrase was not intended to be an indication of violence, it has to be seen nonetheless as an indication that Mr Willigen was going to continue to agitate on the subject and probably to do so with some high level of assertiveness if not verbalised aggression. In cross-examination Mr Willigen was asked by Ms Davies about the second text message and the phone call that followed:

“You continued to text message Mr Morabito, looking at Thursday 12:08pm.  "Need to talk commission errors ASAP.  All fucked up again.  Won't stand for it; fucking sick of it"?---Correct.

It's quite intimidating language.  Was that a joke?---I don't think that was intimidating language.  It's the language used between two men that are both sick of the same situation.  Leo was not offended or disturbed by it at any time.  It's just me again, rather than picking up the phone and talking to payroll and admin, and avoiding an argument, I'm pushing the situation back on my inline manager to make him aware that I'm still not standing for this and I need it sorted out.

I know that you had a conversation with Mr Morabito as well.  This is the conversation that you refer to that Mr Farmer overheard that resulted in you receiving the written warning in December.  So in regards to the conversation that you were having with Leo at that time, was that in regards to commission payments, also?---Yes, it was; I believe it was, yes.

Would you consider that you were yelling at Mr Morabito at that time?---I can't - I don't recall exactly what volume I was speaking, but I remember the conversation and I was annoyed and frustrated for not being dealt with again and trying to feel empathy for Leo having to be the man in the middle, cause I know that he was sick of dealing with it also.  But it just didn't seem to matter what process we followed, errors kept being made and I kept being short changed for many many many many weeks in a row, no matter how simple me and Leo made it for them.  They continued to stuff it up.  So I do recall this conversation.  I can't recall it word for word, but I do know that I did swear during it and I do know that I was annoyed at the time.” 70

[69] What follows from this exchange are two conclusions about Mr Willigen’s conduct relevant to this matter; he has a propensity to think his conduct is consensual or acceptable (“Leo was not offended or disturbed by it at any time”); and he appears to have little self-awareness of how his conduct is received by others.

[70] On 3 February 2020 Mr Willigen had been asked to review and agree an “expectations letter outlining his KPI’s for the year” 71 about which Mr Willigen had strong feelings:

“I then had a new contract put to me that had unachievable targets attached to it and extended hours, I didn’t sign this contract and asked for it to be reviewed. My sales manager agreed the new contract needed reviewing due to its unachievable KPI’s and time requirements. This was a strategy to set me up for failure, which I declined.” 72

[71] While a meeting had been scheduled between Mr Purcell and Mr Willigen on the subject for 10 February 2020, a meeting did not eventuate because of the events of 5 February. 73 The proximity of the request to consider the year’s expectations and the 5 February incident suggests Mr Willigen was likely carrying a degree of agitation to that day about the expectations letter which may well have inflamed his level of frustration.

[72] Mr Willigen regards the company’s investigation as being deficient since regard was not had to CCTV footage evidently available for the site, believing that at the least such footage may show who was situated where in or around the showroom. Mr Purcell’s evidence is that he did not arrange for it to be provided since he believed a thorough and proper investigation had been conducted by speaking with four different staff. 74 Although the absence of access to such footage during the investigation is a matter to be noted, there is not a clear exculpatory purpose to the matter, and no inferences are to be drawn in either direction because it was not viewed. This is not a matter in which physical conduct needs to be determined; at best it may have shown placement of particular witnesses, none of whom gave evidence in these proceedings other than Mr Morabito. As a result, there are not likely any particular findings to be made in this matter about the fact it was not considered, with the matter rising or falling on the material that was considered.

[73] I accept that it was likely the sound of Mr Willigen’s exclamations carried to the other end of the building and was overheard by the people in the reception and customer lounge area. Those exclamations included the swearing referred to by me and it would be surreal to find other than that the swearing used the words “bullshit” and “fucking”, if not the formulation in Mr Morabito’s initial statement to the investigation and then AHG’s findings. It is more likely than not that at least some of the intensified words used by Mr Willigen were distinct enough to be heard by the people in the reception and customer lounge area.

[74] A loud, angry exclamation in an otherwise quiet sales environment will inevitably be a cause of some consternation. Coupled with swearing, it will most likely be inappropriate and unprofessional.

[75] Part of the contest between the parties is whether the side entry door of the showroom slammed behind Mr Willigen when he entered and whether he was responsible for it slamming loudly. Mr Willigen puts forward that the door will often slam and not necessarily because the person entering slams it. There is no specific evidence that would support a finding that he did in fact slam the door. It follows that I do not find that he slammed the door upon his entry to the showroom.

[76] As a result of the foregoing, I find that on 5 February 2020 in the late morning Mr Willigen entered the AHG Laverton showroom and was angry or frustrated and that he swore indeterminate words as part of his frustration, speaking sufficiently loudly for Mr Morabito to hear him and similarly for other staff members at the other end of the building to hear that he was angry and frustrated and swearing. This conduct was inappropriate and unprofessional and had the potential to affect the Respondent’s professional reputation.

[77] The AHG Code of Conduct Policy included in evidence in this matter is dated 1 July 2019. The policy had been attached to the warning issued to Mr Willigen on 24 December 2019. The warning included that Mr Willigen’s conduct to that date had been “a breach of the Company Code of Conduct, specifically the Respect for Others principle” and that he was required to be committed to improving his conduct in line with the requirements of the code of conduct and “ensuring you communicate with colleagues in a respectful and courteous manner at all times”. The policy itself as it deals with Respect for Others states: 75

[78] Other than having Mr Willigen’s denial about the allegations regarding 5 February 2020, there is nothing before me to indicate that he contends the policy was somehow not applicable to the circumstance. Mr Willigen’s conduct plainly contravened the Policy, failing to treat his co-workers, his employer or its customers with respect. What was said and how it was said contravenes the expectation of respect in two ways; it was loud enough and rude enough for others to be taken aback by what was said, as well as being an invitation to think poorly of the target of his concerns. The content of what was said externalised the problem and implicitly blamed others, with no attempt to self-resolve the problem (not that such could feasibly be done in a public exclamation). Mr Willigen’s conduct may have been consistent with the policy if, instead of loudly proclaiming his views, he had gone into Mr Morabito’s office and quietly expressed a concern and sought assistance about how it may be resolved.

[79] I find therefore that Mr Willigen’s conduct was in breach of the AHG Code of Conduct Policy and that the tone and volume of his commentary was inappropriate and unprofessional and could well have compromised his employer’s professional reputation. Mr Willigen was also not candid with AHG in its investigation, denying both the content and tone of his outburst. His lack of candour was contrary to the evidence provided to him, as well as most likely contrary to his own recollection of what happened. Mr Willigen’s lack of candour in his responses is also a matter of misconduct since it was directed to an attempt by him to mislead AHG in its investigation.

[80] The findings I have made support that Mr Willigen committed serious misconduct with his outburst and his lack of candour to AHG in its investigation. I find these matters of serious misconduct are a valid reason for Mr Willigen’s dismissal taking into account its effect on the safety and welfare of other employees.

(b) whether the person was notified of that reason

[81] The evidence is that Mr Willigen was notified of the reasons held by AHG for his dismissal in a letter given to him on 4 March 2020.

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

[82] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal. 76 While so, it is also accepted that “an opportunity to respond” amounts to an opportunity to provide reasoning to a decision maker that would, all things being equal, allow a reasoned explanation to cause the decision maker to accept what is proffered and to change from their foreshadowed path.

[83] These matters lead me to be satisfied that Mr Willigen was given an opportunity to respond to the reasons for his dismissal, related to his capacity or conduct.

[84] I am satisfied that AHG gave Mr Willigen an opportunity to respond to the reasons it held relating to his conduct for the termination of his employment.

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

[85] The evidence shows there was no unreasonable refusal by AHG to allow Mr Willigen to have a support person present to assist at any discussions relating to his dismissal.

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

[86] AHG took into account in forming its decision to dismiss Mr Willigen that he had received a written warning on a similar subject in December 2019. The warning had advised Mr Willigen that it was concerned about his conduct which included swearing in the workplace and counselled Mr Willigen that “any further instances of misconduct further disciplinary action may be taken against you, up to and including the termination of your employment”. The December 2019 warning had also referred to there having been earlier conduct counselling in June 2018.

[87] To the extent that the February 2020 incident may be regarded as unsatisfactory performance, the December 2019 warning plainly counsels against repetition and advises that repetition may lead to dismissal. The fact of the written warning and its proximity to the February incident leans to a finding that Mr Willigen’s dismissal for the most recent matter was not unfair.

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

[88] There is no evidence before the Commission that the size of the employer’s enterprise impacted on the procedures it followed in effecting Mr Willigen’s dismissal.

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

[89] The evidence shows that AHG had access to dedicated human resource management specialists or expertise about the procedures to be followed in effecting the Applicant’s dismissal.

(h) any other matters that the FWC considers relevant

[90] I do not find there are any other matters relevant to my findings in relation to whether Mr Willigen’s dismissal was harsh, unjust or unreasonable.

Conclusion on the s.387 criteria

[91] After considering each of the criteria within s.387, I am satisfied that there was a valid reason for AHG’s dismissal of Mr Willigen and that there were no substantial procedural defects or other matters which would cause me to find that notwithstanding there being a valid reason for his dismissal the dismissal was otherwise unfair.

[92] As a result, I am unable to find that Mr Willigen was unfairly dismissed.

[93] The application for unfair dismissal made by Mr Willigen is dismissed and an order to that effect is issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr P. Willigen for himself

Ms J. Davies for the Respondent

Hearing details:

Melbourne (via video);
29 June;
2020.

Printed by authority of the Commonwealth Government Printer

<PR721085>

 1   Transcript, PN 173.

 2   Ibid, PN 70, 175.

 3   Ibid, PN 199.

 4   Ibid, PN 502.

 5   Exhibit R6, Four Initial Statements, per Leo Morabito, 8 June 2020.

 6   Transcript, PN 456 – 459; 512 – 513.

 7   Exhibit R7, Respondent’s Document List, Annexure C, 8 June 2020.

 8   Ibid, Annexure D.

 9   Ibid, Annexure F.

 10   Ibid, Annexure G.

 11   Ibid, Annexure I.

 12   Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520.

 13   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 14   Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].

 15   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

 16   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

 17   Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].

 18   Transcript, PN 501.

 19   Ibid, PN 108.

 20   Selvachandran v Peteron Plastics (1995) 62 IR 371, pg.373.

 21   [1938] HCA 34, [(1938) 60 CLR 336.

 22   Wong v Taitung Australia Pty Ltd [2017] FWCFB 990, [11].

 23   [1938] HCA 34, [(1938) 60 CLR 336, p.363, p.350.

24 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185, [46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

25 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185, [46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.

26 Edwards v Giudice [1999] FCA 1836, [7].

 27   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

 28   Titan Plant Hire Pty Ltd v Malsen [2016] FWCFB 5520, [28].

 29   Sharp v BCS Infrastructure Support Pty Limited, [2015] FWCFB 1033, [36].

 30   Ibid.

 31   Transcript, PN 455.

 32   Ibid, PN 364.

 33   Ibid, PN 456 – 459.

 34   Ibid, PN 502.

 35   Ibid, PN 487.

 36   Ibid, PN 490.

 37   Ibid, PN 465.

 38   Ibid, PN 501

 39   Ibid, PN 465.

 40   Ibid, PN 499.

 41   Ibid, PN 467.

 42  Ibid, PN 511.

 43   Ibid, PN 512 – 513.

 44   Exhibit R2, Witness Statement of Leo Morabito, 8 June 2020, [33].

 45   Exhibit R6, per Leo Morabito.

 46   Ibid.

 47   Transcript, PN 761.

 48   Exhibit R7, Annexure D.

 49   Ibid, Annexure H.

 50   Transcript, PN 716 – 717.

 51   Exhibit R7, Annexure P.

 52   Ibid, Annexure E.

 53   Ibid, Annexure F.

 54   Form F3, Employer Response Form, 1 April 2020, item 3d.

 55   Ibid, item 3.1(9).

 56   Exhibit R7, Annexure I.

 57   Exhibit R6, per Leo Morabito.

 58   Exhibit R6, per Lyndal Buchanan.

 59   Transcript, PN 457.

 60   Ibid, PN 502.

 61   The Macquarie Dictionary Online, accessed 27 July 2020.

 62   Exhibit R7, Annexure J.

 63   Exhibit R2, [28].

 64   Transcript, PN 670.

 65   Exhibit R4, Witness Statement of Caitlin Farmer, 8 June 2020, [14].

 66   Transcript, PN 346.

 67   Ibid, PN 172.

 68   Ibid, PN 137.

 69   Ibid, PN 344.

 70   Ibid, PN 138 – 141.

 71   Exhibit R3, Witness Statement of Kevin Purcell, 8 June 2020, [17]–[18].

 72   Exhibit A2, Witness Statement of Peter Willigen, 15 May 2020.

 73   Exhibit R3, [19]–[20].

 74   Transcript, PN 616.

 75   Exhibit R7, Annexure K.

 76   Chubb Security Australia Pty Ltd v Thomas (2000), unreported, AIRCFB, Print S2679 [41].