DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gareth Devine
v
Enagic Australia Pty Ltd
(U2020/7287)

Application for an unfair dismissal remedy.

[1] Mr Gareth Devine has filed an application with the Fair Work Commission (the Commission) alleging that he was unfairly dismissed from his employment by his employer Enagic Australia Pty Ltd (Enagic).

Evidence and submissions of Mr Devine

[2] Mr Devine prepared two witness statements, gave oral evidence and was subject to cross examination. Mr Devine commenced his employment on a casual basis as a Warehouse Assistant on 12 February 2016. In 2017, he was appointed to the full-time position of Warehouse Supervisor on a permanent basis. Mr Devine stated that he was responsible for servicing, repairing and shipping water ioniser and water filtration machines which are sold by his employer in Australia and New Zealand.

[3] Mr Devine stated that on or around November 2018 he heard rumours from his work colleagues, including from the Accounts Manager, that the Managing Director, Mr Matsuoka, was using the company credit card for his personal benefit.

[4] While working in the warehouse around March 2019, he came across a number of receipts for purchases on Mr Matsuoka’s company credit card which appeared to be for the personal benefit of Mr Matsuoka, that had been put through as business expenses. Mr Devine stated that around July 2019 he confided to his work colleagues his concerns that Mr Matsuoka may be misusing company funds.

[5] Mr Devine stated that on 9 September 2019 he met with a Ms Joanna Badman, who at the time was a Human Resources contractor for the employer. During this meeting, he raised concerns regarding ongoing underpayments and his general treatment, and asserts that Ms Badman then threatened his employment.

[6] Mr Devine stated in his witness statement of 26 August 2020 that he said words to the effect of:

“I can’t talk to Ken about this, if I do I’ll… who knows I’ll kill him, I just don’t know how I am going to react. I can’t communicate to him on this, and I won’t. I don’t know what’s going to happen, that’s how bad this issue is. I know what was happening June 2016, I have all the documentation of it, I’ve held onto it and I’m not letting it go.” 1

[7] Mr Devine denied making any comments during this meeting about his concerns with Mr Matsuoka’s use of company funds or any disparaging comments about Mr Matsuoka, other than those related to his underpayment claim. Mr Devine stated that he did not become visibly angry or raise his voice during his conversation with Ms Badman. His tone was one of frustration rather than anger. 2

[8] On 20 September 2019, Mr Devine sent an anonymous email to his employer’s parent company in Japan, raising concerns about Mr Matsuoka’s conduct. On 24 September 2019, Mr Devine received a response stating that the matter would be investigated. On 28 February 2020, he received a further response confirming that representatives from the parent company intended to visit Australia to complete its investigation.

[9] Mr Devine stated that in early March 2020 he began to notice a change in the way Mr Matsuoka treated him, and that he received a text message from Mr Matsuoka around this time. In the text message, Mr Matsuoka said that he had heard Mr Devine was not well and that he was thinking about taking some time off. The text message went on to thank Mr Devine for working so hard but said that his health was more important than work and that if he needed to take any time off, he could. Mr Devine responded saying that if he felt unwell he would stay at home to which Mr Matsuoka replied, please take care and let me know how you feel. 3

[10] Mr Devine denied that towards the end of March 2020 he had spoken to Mr Matsuoka and stated that the warehouse staff, except a Mr Alzein, did not want to be at work due to concerns about COVID-19. Nor did Mr Devine accept, as stated by Mr Matsuoka, that he had told a number of employees he was not well and was thinking of taking some time off and that the employer should be closing the warehouse due to COVID-19. 4

[11] Mr Devine’s evidence was that on 26 March 2020 Mr Matsuoka asked him to attend his office to a discuss the warehouse team. At this meeting, Mr Matsuoka stated that he thought it was necessary to temporarily close the warehouse because of COVID-19 and only do shipping. Mr Matsuoka asked Mr Devine for his views. Mr Devine stated that he said he thought it was a good option for everyone’s safety to temporarily shut down the warehouse, even though they were quite busy. It was concluded that all warehouse staff would be stood down and permanent staff placed on two weeks’ special paid leave. 5

[12] On 9 April 2020, Mr Devine received correspondence from Mr Matsuoka stating that the business had undertaken a review of its current operating requirements and that due to COVID-19 there was a need to improve efficiencies and reduce costs. The correspondence advised that Mr Devine’s position of Warehouse Supervisor was at risk of being made redundant and invited him to respond with any suggestions that he may have about avoiding making his position redundant by no later than close of business 14 April 2020. The correspondence stated that the company needed to improve efficiencies and reduce costs to remain viable and that its trading conditions had been disrupted by COVID-19 which was outside the company’s control. It was proposed that Mr Devine’s position of Warehouse Supervisor be re-distributed and subsumed in its current form and cease to exist as a stand-alone position.

[13] Mr Devine stated that at no time prior to receiving the redundancy notification letter was he made aware that the respondent was struggling financially or that COVID-19 had caused a significant adverse impact on the business. The temporary closure of the warehouse had only occurred for health and safety reasons.

[14] The correspondence stated that its contents were to be kept strictly confidential and that a breach of confidentiality may lead to disciplinary action including dismissal.

[15] Mr Devine believed that he was being targeted for redundancy because of his underpayment complaint and his anonymous complaint to the parent company in Japan regarding Mr Matsuoka.

[16] Two days later, on 11 April 2020, Mr Devine sent a PDF copy of his redundancy notification letter to a WeChat group chat that he had with a number of colleagues. Mr Devine stated that the day after he received his redundancy notification letter he received a telephone call from a Mr Jack Kennard, Human Resources Manager, who had also received a redundancy notification letter. 6 Mr Devine stated that Mr Kennard told him that the warehouse team was still operating, and that the employer had hired new casuals to help out. Mr Devine stated that Mr Kennard told him that he believed Mr Devine had been targeted because he had been chasing up staff underpayments.7

[17] Mr Devine stated that out of curiosity he googled the employer’s name and found that it had placed a job an advertisement for the position of casual Warehouse Assistant on 30 March 2020. 8 Mr Devine stated he was not consulted on the hiring of any new casual employees.

[18] Following this, Mr Devine sought legal advice before providing his response to the redundancy notification letter. On 14 April 2020, he wrote requesting an additional week to provide his response. Mr Matsuoka agreed to an extension to 16 April 2020. Mr Matsuoka sent a further email, on 16 April 2020, requesting his response. Mr Devine stated he did not wish to provide a response while in the process of receiving advice from his legal representative, his written response was not provided until 21 April 2020.

[19] Mr Devine’s response stated that in order to give a reasonable response as to whether or not his role should be made redundant in compliance with federal legislation, he required further information including the employer’s financial records to substantiate the disruption caused by COVID-19.

[20] Mr Devine was of the view that two weeks was a reasonable period to consider his response to the employer’s redundancy notification letter. 9

[21] On 24 April 2020, Mr Devine received a letter from Enagic alleging that he had breached Enagic’s lawful and reasonable direction to keep the redundancy notification letter confidential. He was asked to provide a response and attend a show cause meeting to take place by telephone on 29 April 2020. Mr Devine did not make himself available for this meeting and states that he did not answer Mr Matsuoka’s telephone calls on the same day as he was awaiting advice from his legal representatives. Mr Devine provided his written response on 4 May 2020.

[22] It was put on Mr Devine’s behalf that there was no valid reason for his dismissal as it was an unreasonable direction for the employer to require him to keep his redundancy notification letter confidential from his colleagues. The letter did not contain confidential or commercially sensitive information, and the employer suffered no loss by reason of Mr Devine sharing the letter with others.

[23] It was submitted that Mr Devine had a concern that he was being targeted for redundancy and his intention in sharing the letter was to warn his colleagues, with whom he had an open dialogue, that Mr Matsuoka was targeting him and that they may also be subject to similar adverse conduct. It was submitted that an inference could be drawn between the complaints raised by Mr Devine concerning underpayments and Mr Matsuoka’s credit card use and Mr Devine’s redundancy.

[24] It was put that Mr Devine’s sharing of the redundancy notification letter was an error of judgement. Mr Devine was honest about having shared the letter, did not have a history of poor conduct or performance issues, and that the dismissal was disproportionate when viewed against these factors.

[25] It was also put that the employer had decided to dismiss Mr Devine prior to the receipt of his response to the show cause notification given the proximity of his response to his dismissal, and that his dismissal was an attempt to avoid redundancy payments. 10

Submissions and evidence of Enagic

[26] Mr Kenso Matsuoka is the Managing Director of Enagic Australia Pty Ltd and provided a witness statement testifying that he was born in Yokohama, Japan, and that his first language is Japanese. Mr Matsuoka was assisted in giving his oral evidence with an interpreter and demonstrated some difficulty in understanding what was being put to him during cross examination.

[27] Mr Matsuoka stated that Enagic is a direct selling business that develops, produces and sells alkaline ionisers and water filtration machines, accessories for those products, and health supplements through the operation of an online ordering profile and through a network of direct selling distributors.

[28] Mr Matsuoka reports to Japan on the overall performance of the company and the finances and financial performance of the employer is overseen by its Japanese office.

[29] Mr Matsuoka’s evidence was that Mr Devine initially worked as a casual employee in the warehouse in February 2016 and, in 2017, he offered Mr Devine a permanent position as Warehouse Supervisor.

[30] In February 2020, Mr Matsuoka began to see an overall reduction in sales of the filtration machines, which is Enagic’s primary source of revenue. In early March 2020, having received the February sales report, Mr Matsuoka stated he began considering ways in which costs could be reduced as a result of declining sales.

[31] On 19 March 2020, Mr Matsuoka made the decision to close the Enagic branch to walk-in visitors due to the ongoing concern with COVID-19. Distributors and customers were advised of the closure.

[32] Mr Matsuoka stated that towards the end of March 2020, Mr Devine told him that warehouse staff, except Mr Alzein, did not want to be at work due to concerns about COVID-19.

[33] On 26 March 2020, Mr Matsuoka called Mr Devine into his office to discuss closing the warehouse. Mr Matsuoka stated that Mr Devine agreed that the warehouse should be closed due to COVID-19. Mr Devine and the Safety Officer/HR Co-ordinator were placed on two weeks’ special paid leave with the situation to be reviewed at the end of the two week period.

[34] Closing the warehouse did not stop the shipping of machines, however the shipping of accessories and the repairing of machines did stop. Customers and distributors were advised that the warehouse had temporarily closed.

[35] Mr Matsuoka stated that at the end of March 2020 he had serious concerns about the performance of the business as he was seeing a downward trend in the sales turnover. He had discussions with Enagic’s Branch Managers around the world where the possibility of reducing wages, working hours and costs generally within the business was discussed.

[36] Mr Matsuoka decided to reduce the business’s opening hours and look to the possibility of taking on the responsibility of supervising the warehouse department. Mr Matsuoka also considered whether Enagic needed to be incurring the costs of a full-time Safety/HR Co-ordinator and decided to consider outsourcing these functions.

[37] Mr Matsuoka stated that before making any of these decisions he wished to consult with staff who might potentially be impacted. On this basis he sent Mr Devine and Mr Jack Kennard (Safety/HR Co-ordinator) consultation letters 11 advising of the potential to make their positions redundant and requiring a response by 14 April 2020.

[38] At the time of sending the letter he had not made any final decision on whether to make Mr Devine’s role redundant, but wished to hear from him before he made any final decision. On 14 April 2020 Mr Devine, without providing the reason for the request, asked for a one-week extension to provide his response. Mr Matsuoka extended the time for a response to 16 April 2020. On 17 April 2020 Mr Matsuoka, having not heard from Mr Devine, sent a follow-up email providing a further extension to 20 April 2020. On 20 April 2020, Mr Matsuoka sent a text message to Mr Devine and attempted to call Mr Devine but was not able to reach him. It was not until 21 April 2020 that he received Mr Devine’s response to his redundancy consultation letter.

[39] On 21 April 2020, it also came to his attention that Mr Devine had shared a copy of the redundancy consultation letter to a WeChat group on 11 April 2020, two days after he had been given the letter. The WeChat group was made up of 12 people who were a mix of former and current employees of Enagic.

[40] The posting of the redundancy consultation letter to the WeChat group was in direct breach of the direction contained in the letter to keep its contents strictly confidential and not to discuss the matter with any other staff. Mr Matsuoka stated that he issued this direction as he was conscious that staff were already distressed by the current uncertainty surrounding the impact of COVID-19 and wanted to keep news of potential redundancies restricted to only those involved in order to avoid adversely impacting on staff morale. He did not want staff thinking the business was at the point of having to make mass redundancies, which wasn’t the case. 12

[41] Of the persons included in the WeChat group two were ex-employees, one was employed in the warehouse, two were permanent employees and the remainder were casual employees of whom one had not worked for Enagic since December 2019 and had returned to Malaysia where she remained.

[42] Unsure of what to do, Mr Matsuoka contacted Ms Badman, the Compliance Manager, who arranged for some legal advice. On 24 April 2020, Mr Matsuoka sent by email and courier a Show Cause letter to Mr Devine requesting him to show cause why his employment should not be terminated and directing him to provide his written response and attend a telephone meeting, which was arranged to take place on 29 April 2020.

[43] The letter also stated that if Mr Devine did not respond by providing a written response and or not answering the employer’s telephone call at the required time a decision would be made on the information currently available.

[44] On 29 April 2020, the day of the planned meeting, a written response had not been received from Mr Devine and as a result Mr Matsuoka telephoned Mr Devine on three separate occasions and the calls went unanswered and a message was left each time. No return phone calls were made by Mr Devine.

[45] Despite this lack of response, on 30 April 2020 Mr Matsuoka sent a further letter to Mr Devine extending the time for him to reply to 9:00am on 4 May 2020, with a meeting to also occur at 11:00am on the same day. Mr Matsuoka stated that he telephoned Mr Devine on 1 May 2020 on three occasions to confirm whether he had received the extension of time letter. These calls were also unanswered and messages were again left.

[46] At 10.53am on 4 May 2020, Mr Devine provided his written response. As Mr Devine did not provide his response to the extension letter by the time of the meeting, Mr Matsuoka did not attempt to call him for the scheduled meeting. Based on his past conduct, Mr Matsuoka was of the view that it was a reasonable assumption that Mr Devine would again not answer his telephone call. 13

[47] Mr Matsuoka stated that he then considered Mr Devine’s written response to the allegation that he failed to follow his direction to keep strictly confidential the contents of his redundancy consultation letter. Mr Matsuoka stated that he also considered Mr Devine’s failure to follow the direction to provide a response to the redundancy consultation letter by the specified time, his failure to provide his response to the show cause letter within the specified time, and his failure to answer or return his telephone calls and text messages without any justifiable reason. 14

[48] Mr Matsuoka stated he concluded that Mr Devine’s continued disregard and failure to follow his directions meant that the only appropriate action would be to terminate his employment with notice.

[49] Mr Matsuoka stated that he was unaware Mr Devine was the author of the anonymous complaint made to his superiors in Japan, and that he was not influenced in his decision by any of the matters raised by Mr Devine.

[50] Mr Matsuoka stated that Mr Devine was not targeted as a result of any complaint he had made and that the only reason the warehouse supervisor position was made redundant was due to reducing the ongoing costs of permanent staff as he was concerned with the decline in sales due to COVID-19. 15

[51] With respect to the advertisement for casual warehouse roles, Mr Matsuoka’s evidence was that, on 30 March 2020, he instructed the advertisement be placed. This was because once the decision was made to close the warehouse and stop taking accessory orders, there were approximately 500 outstanding orders which had not been shipped and additional staff were needed to assist with this process.

[52] Mr Matsuoka stated that Mr Devine and the existing casuals made it clear to him that they did not want to be at work as a result of COVID-19, leaving him with no option but to advertise for new casual warehouse staff to ensure orders were shipped. This was purely a temporary arrangement that took three weeks to complete and the casual employees were only engaged subsequently on an as-needed basis.

[53] Ms Joanne Badman, Compliance Manager (employed as a contractor), also gave evidence on behalf of the employer. Ms Badman stated that she was not responsible for any decision making of the employer in connection with operational matters, although she may be consulted about decisions taken.

[54] On 9 September 2019, Ms Badman met with Mr Devine. Mr Devine stated that Mr Matsuoka was misusing company funds and that the head office should know about it. Ms Badman stated that Mr Devine became angry during their conversation as he let out his frustrations about Mr Matsuoka. Ms Badman’s evidence was that Mr Devine did not raise anything to do with underpayments, and if he had done so she would have escalated it to Mr Matsuoka for his urgent attention. Ms Badman further stated that she did not in any way threaten Mr Devine’s employment during this conversation.

[55] Following this meeting, Ms Badman did not raise Mr Devine’s allegations against Mr Matsuoka as she was aware that as an ex-patriate in Australia, Mr Matsuoka was entitled to use the company credit card for personal expenses.

[56] Ms Badman stated that around 23 or 24 September 2019 Mr Matsuoka telephoned her and advised that he had been informed from the Hong Kong office that an anonymous complaint had been sent to Japan about him. The complaint went to how he was using the company credit card and other personal matters and he advised he did not know who would have made such a complaint. Ms Badman stated that she stated to Mr Matsuoka that the complaint may have been made by Mr Devine as he had expressed similar concerns earlier that month to herself. Mr Matsuoka replied that he did not think it would be Mr Devine as they had a good relationship. Ms Badman stated that the anonymous complaint was not discussed again.

[57] Ms Badman stated that in late March 2020 Mr Matsuoka telephoned her advising that he needed to look at cutting costs and was considering making some redundancies. Mr Matsuoka also stated he was considering cutting back the office hours which would have a flow-on effect for staff and casual hours.

[58] Ms Badman’s evidence was that Mr Matsuoka had requested that she obtain some preliminary advice about the obligation to consult with employees over possible redundancies. Ms Badman became aware that Mr Matsuoka had written to Mr Devine to begin a consultation process after forming a view that Mr Devine’s role could potentially become redundant.

[59] On 14 April 2020, Mr Matsuoka showed her the email that Mr Devine had sent requesting an extension of time in which to respond to the consultation letter and asked that she obtain some legal advice, which she did. On 21 April 2020, Mr Matsuoka showed her Mr Devine’s response to the consultation letter, which was received after the deadline, and Mr Matsuoka asked that she arrange for some further legal advice about the extent of the company’s obligations.

[60] Also, on 21 April 2020 Mr Matsuoka telephoned Ms Badman and advised that he had been informed that Mr Devine had posted the redundancy consultation letter in a WeChat chat group and was unsure what to do about it. Mr Matsuoka expressed concern that this post would be upsetting for staff and requested that Ms Badman seek some legal advice about Mr Devine’s conduct. Ms Badman stated she was also asked to obtain legal advice when Mr Devine did not respond to his show cause notice by the specified time. Ms Badman stated that she was not involved in the decision to terminate Mr Devine’s employment.

[61] Enagic submitted that the varying and conflicting reasons Mr Devine provided for the breach of confidentiality were unsatisfactory. Enagic submitted that the direction given by Enagic was lawful and reasonable, and that Mr Devine took it upon himself to share the confidential correspondence in full knowledge of the specific instruction not to do so. Whether any damage was caused to Enagic was not relevant.

[62] Enagic denied that Mr Devine was targeted for redundancy as, on his own evidence, his complaint about Mr Matsuoka was anonymous; Mr Matsuoka never saw the complaint and had no knowledge of its author until Mr Devine filed his unfair dismissal application. Mr Devine’s proposed redundancy was related to the reduction of staff wage costs as a result of a downward trend in sales turnover. 16

[63] Mr Devine’s continued failure to comply with directions is also relied upon by Enagic to dispute that his dismissal was unfair. Mr Devine did not comply with the directions given in respect of the time frame for providing a response to the redundancy consultation letter, nor did he comply with the time frame to provide a response to the show cause letter, including extensions given for both responses.

[64] In addition, Mr Devine did not respond to telephone calls and messages made and left by the Managing Director, Mr Matsuoka, further demonstrating his failure to follow lawful and reasonable directions.

Consideration

[65] Pursuant to s.387 of the Fair Work Act 2009 (the Act) the Commission must take into account, in determining whether a dismissal was harsh, unjust or unreasonable, a number of listed factors, each of which is considered below:

S.387(a) Was there a valid reason for the applicant’s dismissal related to his capacity or conduct

[66] The term “valid reason” was considered by Northrop J in Selvachandran v. Petron Plastics Pty Ltd (Selvachandran)¹⁷, in relation to s.170DE of the Industrial Relations Act 1988. While under a different legislative framework Northrop J comments remain apposite:

“Section 170DE(1) refers to ‘a valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective `valid’. A reference to dictionaries shows that the word `valid’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: `2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is `sound, just or well founded; a valid reason.’

In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). 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, commonsense 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 a s 170DC.”

[67] The holding of the term “valid reason”, as meaning sound, defensible or well founded has been adopted by this Commission and is accepted by the parties as the appropriate test.

[68] In this matter, Mr Devine contends that the instruction to keep confidential the potential that his position as Warehouse Supervisor may be made redundant was not a reasonable direction issued by his employer. It is submitted that it was unreasonable for the employer to require Mr Devine to keep his redundancy notification letter confidential from his colleagues.

[69] It is said that the redundancy notification letter did not contain any confidential or commercially sensitive information and the sharing of the information would be unlikely to have resulted in any reduction in staff morale. There has been no loss demonstrated by the employer as a result of the applicant’s conduct.

[70] It was put that if the applicant was terminated by way of redundancy, other employees would have become aware of the reason for the applicant’s departure.

[71] In Mr Devine’s oral and written evidence and the submissions tendered on his behalf, the reason for providing his redundancy notification letter to work colleagues and ex-work colleagues appeared to be a combination of a number of factors. These factors were:

•  being under the impression other employees had received a similar letter,

•  letting other employees know it was not just their jobs that were affected,

•  advising other employees that their positions were in jeopardy,

•  advising other employees that he was being targeted for redundancy after he had made complaints about Mr Matsuoka’s conduct; and

•  he wanted to warn that similar action could be taken against them.

[72] In Mr Devine’s response of 4 May 2020, provided in response to the show cause letter of 24 April 2020, he states that he was in constant communication with his work colleagues who had advised him that the warehouse department was still operating, that he was the only employee sent home and that more staff had been hired for the warehouse department. As a result, he was perplexed and confused. He shared the restructure letter with his colleagues because he was under the impression they had received a similar letter and their jobs were also in jeopardy.

[73] In Mr Devine’s Form F2 unfair dismissal application, it is stated at 3.2 that the company restructure letter was shared with others as he was under the impression that the restructure was likely to affect the entirety of the warehouse department and, as a leader, he wanted to show support for his team by letting them know that it was not just their jobs that were affected. On this basis, he sent the letter to a few employees of the employer in a WeChat group chat, which he acknowledges was an ‘error in judgement’.

[74] In Mr Devine’s witness statement of 28 July 2020, he states at [25] that his intention was primarily to show his colleagues that he was being targeted for redundancy after he had made complaints about Mr Matsuoka’s conduct and he wanted to warn them that similar action could be taken against them. He also wanted to provide support to any of his colleagues who may have received a similar letter.

[75] During cross-examination, Mr Devine stated that he received the redundancy consultation letter on 9 April 2020 and shared it on WeChat two days later on 11 April 2020 as he believed the WeChat group chat recipients needed to be aware of his potential redundancy and that he felt he was being targeted.

[76] Mr Devine acknowledged that he had read the direction against sharing the letter with persons other than an accountant or legal advisor and that should he breach this direction disciplinary action, including dismissal, may result.

[77] The direction contained in Mr Devine’s correspondence from his employer is clear and unambiguous. It commences with the heading in bold:

“Strictly Confidential and Private”

[78] The correspondence concludes by stating:

“Lastly, we require you to keep this letter and the discussions strictly confidential and not to discuss such matters with any other staff as we do not wish to see a further eradication of morale in these challenging times. You may of course speak with your accountant or a legal adviser to take advice, otherwise you are lawfully and reasonably directed to keep the matters the subject of this letter strictly confidential (Direction).

If we should discover that you have breached this Direction, disciplinary action may ensue up to and including termination of employment.

We look forward to receiving your written response by the nominated Deadline.”

[79] In arguing that a valid reason for Mr Devine’s dismissal existed, the employer also relied upon Mr Devine’s failure to adhere to prescribed deadlines in subsequent correspondence and his failure to answer telephone calls from his employer. Mr Devine’s explanation for not providing his responses in the set timeframe was that he was in the process of seeking legal advice and did not wish to provide any response until this had occurred.

[80] A similar explanation was provided as to why he did not answer or reply to his employer’s attempts to contact him. Noting that Mr Devine was at home and being paid, he still had an obligation to comply with work-related instructions and was not at liberty to ignore attempted contact by his employer simply because he was seeking legal advice. The evidence was that he was not under any instruction from his legal adviser not to answer telephone calls.

[81] As part of the factual matrix, the employer relies upon this conduct, together with the breach of confidentiality, to establish a valid reason for Mr Devine’s dismissal. I accept that the non-compliance with the employer’s timeframes and failure to respond to the employer’s attempted contact without explanation is behaviour contributing to a conclusion that the applicant’s course of conduct was a further demonstration of his disregard for lawful and reasonable instructions.

[82] I have no difficulty in accepting the employer’s proposition that the direction to keep the correspondence confidential was lawful and reasonable. It is not unreasonable that the consultation regarding his position being potentially redundant should be kept between Mr Devine and his employer. Such an instruction is, as was said to be the case, designed to minimise stress and maintain morale within the workplace as much as possible. It was simply not open to Mr Devine to take it upon himself to distribute the confidential correspondence to others.

[83] It is also clear that not all of the recipients could be said to have the interest that Mr Devine states was the reason he forwarded them a copy of the correspondence. This is because two of the persons in receipt were no longer employed, others were casual where redundancy is not a consideration, and others were not in his workgroup.

[84] While it may have been excusable had the correspondence not contained the stipulated instruction that it was to remain confidential, that was not the case. The correspondence was explicit in requiring Mr Devine to respect the confidentiality of the correspondence, however Mr Devine, after waiting for two days, chose not to do so.

[85] Mr Devine was advised he was able to share the document when seeking financial or legal advice, but for no other reason. In addition, he was advised of the reason why the correspondence should be kept strictly confidential, as the employer did not want to see an eradication of morale in these ‘challenging times’, this being a reference to COVID-19.

[86] The correspondence related to Mr Devine’s position of Warehouse Supervisor by informing Mr Devine that it was proposed that his position would cease to exist and be redistributed and subsumed in its current form. Enagic was entitled to require Mr Devine to maintain the confidentiality of the correspondence.

[87] I consider Mr Devine’s distribution of his redundancy consultation correspondence to be flagrant, mischievous and without reasonable cause, and provided his employer with a valid reason for his dismissal. Mr Devine’s non-compliance with the employer’s timeframes and failure to respond to the employer’s attempted contact without explanation provides further support for this conclusion.

[88] Having concluded that a valid reason for Mr Devine’s dismissal existed it follows that the Commission does not accept that Mr Devine’s dismissal was the result of him having raised underpayment claims in 2016, and having been the author of an anonymous complaint regarding Mr Matsuoka to his superiors in Japan in September 2019. These allegations were not made out by the evidence and relied upon inferences being drawn and were not able to be supported over and above the reasons provided by the employer.

Section 387(b) Notification of the reason for termination of employment

[89] Mr Devine was provided with notice of alleged misconduct in the show cause notice issued on 24 April 2020. The termination of employment letter of 5 May 2020 referred to this conduct and additional matters that resulted in his dismissal.

Section 387(c) Opportunity to respond

[90] Mr Devine was provided with an opportunity to respond to the ‘show cause’ correspondence and an extension of time was also granted for his response to be provided.

Section 387(d) Support person

[91] Mr Devine was provided with an opportunity to have a support person.

Section 387(e) Previous warnings for unsatisfactory performance

[92] Mr Devine’s dismissal was not related to unsatisfactory performance.

Section 387(f) Size of the enterprise and impact on dismissal procedures

[93] The employer, while not a small business, was neither large nor sophisticated and sought external advice on the dismissal process.

Section 387(g) Absence of dedicated human resources

[94] The employer employed a person in the position of Safety/HR Coordinator which was made redundant at the same time as Mr Devine.

Section 387(h) Other Matters

[95] I accept that, as is quite often the case where an employee loses their employment, Mr Devine’s dismissal has had an impact on his personal and financial circumstances. I also accept that, when confronted about the misconduct of sharing the redundancy notification letter, to his credit, he did not attempt to deny this. Mr Devine has been with the employer for over four years and no performance or conduct issues have been raised during this period.

[96] I note, however, that nothing was put by Mr Devine in his evidence that suggested he was, in any way, remorseful. In his response of 4 May 2020 to having breached confidentiality, an explanation is provided but no regret is expressed, and the response concludes:

“My demand for the following information still stands” (in regard to further redundancy details).

[97] Mr Devine received 3 weeks’ pay in lieu of notice and remained on full pay for two weeks during the investigation process, which was delayed by Mr Devine’s failure to comply within the specified timeframes.

[98] The reasons put forward by Mr Devine for sharing the redundancy notification letter, in my view, do not lessen the seriousness of his breach of a lawful and reasonable instruction, nor do I consider his dismissal was a disproportionate reaction by the employer.

[99] Once put on notice of the alleged serious breach of confidentiality, he then took it upon himself to respond in accordance with his own timetable and ignore legitimate contact from his employer. Had the failure to respond to timelines and answer telephone calls been the sole reason for Mr Devine’s dismissal, it would be arguable that a dismissal was disproportionate to the conduct. However, in this matter such conduct is a further demonstration of Mr Devine’s disregard to reasonable and lawful directions issued by his employer.

[100] Mr Devine was in a supervisory role and has described himself as a leader. For his own purposes he took it upon himself to act contrary to a legitimate and clear instruction of his employer in full knowledge of the consequences, to breach the confidentiality of a restructure in relation to his position and forward the correspondence to others. His explanation for having taken this action fell far short of a satisfactory explanation. Mr Devine provided a copy of the correspondence to his legal adviser, which he was entitled to do. There was no demonstrated necessity to provide a copy of the correspondence to any of the other 12 persons.

[101] Taking into consideration all the factors required under s.387 of the Act, including those put by Mr Devine, his dismissal was not harsh, unjust or unreasonable and, and as such his application is dismissed.

DEPUTY PRESIDENT

Appearances:

M Lynch Solicitor for the applicant

C O’Neill of Counsel and T Gooch Solicitor for the respondent

Hearing details:

Sydney

2020

7 September

Printed by authority of the Commonwealth Government Printer

<PR722628>

 1   Witness statement of Mr Devine 26 August 2020 at [29d]

 2   Witness statement of Mr Devine 26 August 2020 at [29e]

 3   Annexure GD-4 to Witness statement of Mr Devine 28 July 2020

 4   Ibid at [20b]

 5   Witness statement of Mr Devine 28 July 2020 at [20]

 6   Witness statement of Mr Devine 28 July 2020 at [28-29]

 7   Mr Kennard did not give evidence at the hearing

 8   Witness statement of Mr Devine 28 July 2020 at [27]

 9   Witness statement of Mr Devine 26 August 2020 at [15]

 10   Form F2 at 3.2 at [24]

 11   Referred to as ‘redundancy notification letter’ by Mr Devine

 12   Mr Matsuoka’s witness statement of 18 August at [40]

 13   Ibid at [51]

 14   Witness statement of Mr Matsuoka 18 August 2020 at [52]

 15   Witness statement of Mr Matsuoka 18 August 2020 at [66]

 16   Written submissions of 18 August 2020 at [18]

17 (1995) 62 IR 371 at 373