[2020] FWC 7027
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s 394—Unfair dismissal

Nisset Puth
v
Precision Valve Australia Pty Ltd
(U2020/8991)

DEPUTY PRESIDENT SAMS

SYDNEY, 29 DECEMBER 2020

Termination of employment – application for an unfair dismissal remedy – reinstatement and lost remuneration – long serving Quality Assurance Inspector – allegations of misconduct – serious breach of Code of Conduct and various Company policies – alleged bullying and undermining of HR Manager – unauthorised access of Union Officials to the site in breach of COVID-19 Policy – copying and distributing of altered confidential email chain – taking of excessive breaks – applicant’s evidence and explanations not accepted – allegations proven – allegations in aggregate constitute valid reasons for dismissal – no procedural unfairness issues – mitigating factors do not outweigh seriousness of misconduct – dismissal not harsh, unjust or unreasonable – application dismissed.

BACKGROUND

[1] On 30 June 2020, the United Workers’ Union (the ‘UWU’ or the ‘Union’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), on behalf of its member, Ms Nisset Puth as a consequence of her dismissal from employment with Precision Valve Australia Pty Ltd (‘Precision’, the ‘Company’ or the ‘respondent’) on 23 June 2020. Ms Puth seeks reinstatement to her former position, having worked for Precision for 17 years. At the time of her dismissal, she was employed as a Senior Quality Inspector under the Precision Valve Australia Pty Ltd Enterprise Agreement 2019 (the ‘Agreement’) on a salary of $1,607.72 per week.

[2] Ms Puth was stood down on full pay on 16 June 2020, when she received a ‘show cause’ letter from Mr Brad Edwards, Operations Director, in which a number of allegations were made concerning Ms Puth’s conduct as follows:

‘Dear Nisset

RE: ALLEGATIONS OF MISCONDUCT AND CONFIRMATION OF STAND DOWN ON FULL PAY - PRIVATE & CONFIDENTIAL

I am writing to formally advise you that Precision Valve Australia P/L has received information that suggests that you have engaged in misconduct, including breaches of our policies and Code of Conduct.

The allegations include, but are not limited to, the following:

  That on or about the 27th May 2020, it is alleged that you had attempted to bully and harass the Human Resources Business Partner by stating non-factual and vexatious allegations to the QA Manager, Mr David Croudace regarding Ms Leonardi post a discussion with both Ms Leonardi and Mr Sossio Capasso regarding funds raised by a selective group of employees on afternoon shift. At approx. 4.30pm on 27th May 2020, and following the discussion, you had allegedly advised Mr Croudace that Ms Leonardi had berated you and criticized you for sending flowers to Mr Kayani's family;

  That on or about the 29th May 2020, and at approx. 15:00pm, it is alleged that you had allowed access to the two (2) Union Organisers (visitors) by opening the front access door on two separate occasions without the consent and approval of Precision Valve Management despite you were not the intended recipient for the visitors. As a result of your alleged actions, both Visitors had breached the company COVID19 policy and further placed PVA employees at risk.

  That on or about the 29th May 2020, it is alleged that you had tampered with a confidential and privileged document in the form of a partial email discussion thread between Ms Leonardi and UWU Union Organiser, Mr James Evans by removing Ms Leonardi's email signature which contained Precision's disclaimer from the unauthorised copies and inserting a forged signature on the document prior to distributing to colleagues in an attempt to defame, and in direct attempt to bully and harass Ms Leonardi;

  That on or about the 29th May 2020, it is alleged that you had made unauthorised copies of a confidential and privileged document in the form of an email discussion thread between Ms Leonardi and UWU Union Organiser, Mr James Evans using company equipment. Further you were observed to have distributed and issued these unauthorised copies to employees at Precision Valve Australia without the consent of both Ms Lilianne Leonardi and/or Precision Valve management;

  That on the following dates, you were observed to have taken unauthorised excessive breaks;

  On 15th April 2020 from 17:32 to 17:52 (15 min break) and at 19:58 to 20:36 (30 min break)

  On 15th May 2020 from 17:31 to 17:58 (15 min break) and at 19:58 to 20:37 (30 min break) • On 27th May 2020 from 17:32 to 18:08 (15 Min break) and 20:05 to 20:59 (30 min break)

  On 28th May 2020 from 17:36 to 17:56 (15 Min break) and 20:16 to 20:58 (30 minute break)

  On 29th May 2020 from 17:29 to 18:23 (15 Min break) and 20:06 to 20:49 (30 minute break)

  That on or about Friday, 29th May 2020, and at approx. 15:00pm you were observed by Senior Managers of PVA to be engaging in social and non-work related discussions with Union Organisers in the sites lunch/Tea room on commencement of your shift and outside of your authorised break times.

These allegations are of a serious nature and if substantiated would be in contravention of the following sections of Precision Valve Australia P/L Code of Conduct, Discrimination and Harassment Policy, Internet, Email and computer Use policy, and Privacy and Privacy Complaints policy:

Code of Conduct

Section 5.2 - As a representatives of Precision Valve, all workplace participants are expected to conduct themselves and treat others in a professional and courteous manner at all times, and observe the following standards of behaviour both inside and outside of the workplace, especially when participants are representing the company:

a) Comply with all current and local legislations, company policies, procedures, rules, and regulations;

b) Comply with all lawful and reasonable directions provided by Precision Valve management and/or authorised representative.

c) Be honest and fair in dealings with customers, clients, suppliers, co-workers, management and the general public.

e) Treat customers, clients, suppliers, co-workers, company management and the general public in a non-discriminatory manner with proper regard for their rights and dignity. In this regard, discrimination, victimisation or harassment based on a person's race, colour, religion, ethnicity, age, sex, sexual orientation and marital status are protected by law and will not be tolerated.

f) Promptly report any violations of law, ethical principles and breaches of policies of this Code.

g) Maintain punctuality. If a workplace participant is late or cannot report for work, please telephone and let the supervisor know as soon as possible.

h) Do not engage in activities or practices during work time for private gain. Further, workplace participants must not abuse the advantages of their position for private purposes, or solicit or accept any gift or benefit in connection with their employment or engagement which might compromise, or be seen to compromise their integrity or Precision Valve's reputation.

j) Observe and comply with Precision Valve Australia Work Health and Safety policy and procedure obligations, and co-operate with all initiatives taken by Precision Valve in the interests of Work Health and Safety.

k) Be truthful in all dealings with all participants encountered within the workplace. Workplace participants must not make any false or misleading declarations during their course of employment, performance of their duties or when providing services on behalf of Precision Valve. A declaration can be considered to be misleading if information is omitted or presented in a manner that enables a misleading view of the situation to be formed. This includes incidents where there is a failure to comply with reporting requirements and/or falsifying records.

l) Refrain from any form of conduct which may cause any reasonable person unwarranted offence or embarrassment or give rise to the reasonable suspicion or appearance of improper conduct or biased performance.

m) Not act for an improper or ulterior purpose to the detriment (whether perceived or actual) of Precision Valve.

u) Do not take any unauthorised breaks without the consent of your Manager/supervisor. This includes smoking during working hours unless it is during prescribed breaks and within the designated areas.

Discrimination & Harassment Policy & Procedure

  Section 3 (iii)- Workplace harassment is unreasonable, unwelcomed and unwarranted behaviour directed towards a worker or a group of workers which could make a person feel offended, humiliated or intimidated and that of which creates a risk to a person's health and safety. Conduct can amount to harassment even if the person did not intend to offend, humiliate or intimidate the other person.

  Section (iv) Bullying- Bullying is repeated unreasonable behaviour directed towards an individual or a group that creates a risk to health and safety. Unreasonable behaviour means behaviour that a reasonable person, having regard to all the circumstances, would expect to victimise, humiliate, undermine or threaten.

  Section (v) Victimisation- Victimisation is where a person is subject to threatening behaviour by another as a form of detriment because they have lodged, or is proposing to lodge, a complaint or partake in an investigation of unlawful conduct, discrimination and/or harassment. Workers must not retaliate against a person who raises a complaint or subject them to any detriment.

  Section 5- Rights and Responsibilities,

  ensure they do not engage in any unlawful conduct towards others within the workplace;

  ensure they do not aid, abet or encourage other persons to engage in unlawful conduct;

  follow the Precision personal grievance complaint procedure if they experience any unlawful conduct;

  report any unlawful conduct they see occurring to others in the workplace in accordance with the complaint procedure; and

  Maintain confidentiality if they're involved in the complaint procedure.

Workers should be aware that they will be held legally responsible for all unlawful conduct, especially for those whom who aid, abet or encourage other persons to engage in such behaviour and will be legally liable.

Internet, Email and Computer Use Policy

Section 5.1 Use of internet, email and computers

  Section 5.1- Where use is allowed, users are entitled to use Precision computer network only for legitimate business purposes.

  Section 5.2- Users are permitted to use Precision's computer network for limited and reasonable personal use. However any such personal use must not impact upon the user's work performance or Precision resources or violate this Policy or any other Precision Policy.

  Section 5.3 -A user must not use Precision's computer network for personal use if that use interferes with the efficient business operations of Precision or relates to a personal business of the user.

Section 7 - Prohibited Conduct

  7.1 Users must not send (or cause to be sent), upload, download, use, retrieve, or access any email or material on Precision's computer network that:

(b) causes (or could cause) insult, offence, intimidation or humiliation;

(c) may be defamatory or could adversely impact the image or reputation of Precision. A defamatory message or material is a message or material that is insulting or lowers the reputation of a person or group of people;

(d) is illegal, unlawful or inappropriate;

(f) gives the impression of or is representing, giving opinions or making statements on behalf of Precision without the express authority of Precision. Further, users must not transmit or send Precision's documents or emails (in any format) to any external parties or organisations unless expressly authorised to do so;

  7.2 Users must not use Precision's computer network:

(a) to violate copyright or other intellectual property rights. Computer software that is protected by copyright is not to be copied from, or into, or by using Precision's computing facilities, except as permitted by law or by contract with the owner of the copyright;

(b) in a manner contrary to Precision's Privacy Policy;

(c) to create any legal or contractual obligations on behalf of Precision unless expressly authorised by Precision;

(d) to disclose any confidential information of Precision or any customer, client or supplier of Precision's unless expressly authorised by Precision;

(h) to use Precision's computer facilities for personal gain. For example, running a personal business.

Privacy & Privacy Complaints Policy

  Section 6.4 - Non-disclosure

(a) Employees of PRECISION are not permitted to disclose confidential or personal information which is collected by PRECISION about its suppliers, customers, agents or contractors.

(b) If an employee is not sure whether information is confidential or personal, they must check with PRECISION's HR Manager or their immediate manager.

(c) Confidential and personal information is information that is not in the public domain. It includes, but is not limited to, the following types of information:

  any personal information about an individual which has been collected by PRECISION;

  any information about a supplier, customer, agent or contractor of PRECISION;

  any personal information about an employee or colleague (including a prospective or former employee); and

  any information about PRECISION's business affairs or business systems. Precision Valve Australia P/L Enterprise Agreement 2019

  Clause 12.7 Timekeeping

  Employees who are late or leave early shall lose wages for the time so absent, unless prior arrangement with their supervisor

You have been stood down on full pay, effective 16 June 2020 and you must not return to work until you have met with management on 18 June 2020.

You will have an opportunity to respond in a formal right of reply meeting with Ms Lilianne Leonardi, Human Resources Business Partner and I on Thursday, 18th June 2020 at 3.00pm in the Front Office Training/Boardroom room. As termination of employment is one of the potential outcomes of this meeting, you may wish to bring a support person to the meeting.

Please be advised that you must not directly or indirectly victimise or attempt to victimise any person who may have assisted us in our enquiries. The allegations made against you remain confidential and should not be discussed with other employees.

If you require further assistance and/or support please contact either myself or Lilianne Leonardi on [phone number provided].

Yours faithfully
Brad Edwards’

[3] Mr Puth with her support person, Mr James Evans, attended a meeting on 18 June 2020 with Mr Edwards, Mr Sossio Capasso (Production and Toolroom Manager) and Ms Lilianne Leonardi (HR Business Partner).

[4] On 23 June 2020, Ms Puth was sent a letter summarily terminating her employment for serious misconduct (although five weeks’ notice was paid). In addition to Mr Edwards concluding that Ms Puth had ‘not been open and honest’ in the 18 June 2020 meeting, Mr Edwards set out the findings made on the allegations in the show cause letter as follows:

‘Dear Nisset,

RE: CONFIRMATION OF TERMINATION OF EMPLOYMENT

On 16 June 2020, you were issued with a letter confirming your stand down on full pay and setting out various allegations of misconduct. You were invited to a meeting that occurred on 18 June 2020. You attended this meeting in the presence of your support person. You were made aware, prior to the commencement of the meeting that you would have the opportunity to respond to the matters alleged and the possibility of the termination of your employment.

I have had careful regard to your responses as communicated to me at our meeting. I am not satisfied that you were, in the circumstances, open and honest with respect to your responses. On a number of occasions during the meeting, you chose not to respond knowing that your ongoing employment was being considered.

Whilst I set out below my determination of the allegations, I must advise you that I have no confidence in you as an employee and that I have elected to terminate the employment, effective immediately.

Taking into account the matters alleged against you, and with regard to the importance of our policies, I do believe that your behaviour and, in particular your responses to the allegations, would permit the company to terminate the employment by way of summary dismissal.

In the circumstances, and without any prejudice to the legal position of Precision Valve, I have made an election to make a payment of five weeks' pay in lieu of notice. This payment will be made into your bank account, along with your salary up to and including today's date and your accrued but untaken service related entitlements. If you have any questions about your entitlements, please contact Human Resources.

FINDINGS

In my letter of 16 June 2020, a series of allegations were particularised. Taking each one of the allegations, and with regard to your responses of 18 June 2020, please be advised:

1. I find that your behaviour on 27 May 2020 was both inappropriate and constituted an attempt on your part to bully and harass the Human Resources Business Partner. I am not prepared to accept your comments with respect to your subjective account of your state of mind. Irrespective of your account of your subjective state of mind, I believe that you were less than honest in your dealings with the Human Resources Business Partner.

2. I believe that you were well aware of the procedures that had been put in place with respect to COVID-19 and visitors to the site. You were also well aware that individuals could not be permitted access to the site without the approval of management. This direction was particularly relevant to granting access to third parties such as representatives of a trade union. I find that you deliberately and knowingly granted access to the individuals without authority. I also find that this was a knowing and deliberate breach of the policies that had been put in place to minimise the spread of COVID-19.

3. Your account of your involvement with the unauthorised altering, printing and distribution of the email chain on 29 May 2020 conflicts with the available evidence and I find that your responses were not entirely honest. Whilst I am not in a position to allege to the necessary level of proof that you personally manipulated the content of the emails and had placed on the email chain the signature of the individual without her permission, I am satisfied that you were aware that the documents had been altered and that you chose to copy and distribute the documents in full knowledge of the alteration. In making this finding, I also note that Mr James Evans was your support person at the meeting on 18 June 2020 and that he hadˇ the opportunity to discuss this allegation with. you and to assist youˇ with any response. When confronted with the CCTV footage, I note that you refused to comment on the evidence.

4. I would also add that if there was any genuine confusion on your part (which is denied), it was always open to you to check with Ms Leonardi before you took steps to copy and distribute the email communications. I find that your failure on this part was deliberate and possibly part of what appears to be an ongoing attempt on your part to undermine Ms Leonardi in her role.

5. With respect to the unauthorised taking of excessive breaks, I find that your explanations lack credibility and are not accepted. You appear to have deliberately and repeatedly taken unauthorised breaks without the permission of your manager.

6. With regard to your responses to the events of 29 May 2020, I am not satisfied with your response, however, in the circumstances I have not made a finding in relation to 29 May 2020.

I trust that this letter of termination sets out the basis for the termination of your employment and I wish you well in any future employment opportunities that may become available to you.

Regards
Brad Edwards’

[5] The matter was remitted to me for arbitration following an unsuccessful conciliation before a Commission Conciliator. In accordance with my usual practice, I issued directions for the hearing, requiring Precision to file first as this is a serious misconduct case. I listed the matter for a further conciliation on 13 August 2020. Regrettably, the application was not able to be resolved and I confirmed the directions previously issued. At the hearing on 7 and 8 October 2020, Mr A Aghazarian with Ms M Bolton appeared for the Union and Ms Puth. Mr P Brown, Partner, Baker McKenzie, appeared for the respondent, with permission being granted for Precision to be represented by a lawyer, pursuant to s 596 of the Act. I determined that an ‘in person’ hearing should be held, notwithstanding the limitations on ‘in person’ hearings due to the COVID-19 pandemic. Appropriate health and safety measures, authorised by NSW Health for NSW Courts, were observed in the hearing. I thank the parties for their cooperation in this respect.

THE EVIDENCE

[6] The following persons provided statement and oral evidence in the proceedings:

  Mr Bradley Edwards – Operations Director;

  Ms Lilianne Leonardi – HR Business Partner;

  Mr Sossio Capasso – Production and Toolroom Manager;

  Ms Jainer Solis – Production Supervisor;

  Mr David Croudace – Quality Manager;

  Ms Puth – the applicant;

  Ms Jannine Moroney – Production Technician and Union Delegate; and

  Mr James Evans – Union Organiser.

Also tendered in the evidence were a number of the respondent’s policies and procedures; see: [2] above.

For the respondent

Mr Bradley Edwards

[7] Mr Edwards was the decision maker who determined to terminate Ms Puth’s employment. In the meeting on 18 June 2020, he arranged to have a computer to show CCTV footage. He reviewed Ms Leonardi’s notes of the meeting and said they accord with his recollection of the discussions. The meeting went from 3:10-4:28pm, with two short breaks requested by Mr Evans. The CCTV footage showed the associated incidents on 29 May 2020 around 3pm and 8pm that day.

[8] Mr Edwards said that when it was put to Ms Puth that the CCTV footage (played during the meeting) showed that she had allowed two visitors (Union Organisers) access to the site in breach of the Company’s COVID-19 Policy, she responded on three occasions at Mr Evans urging to say ‘No comment’. Ms Puth had alleged that another employee had permitted her to bring the visitors from reception to the lunchroom. Mr Edwards said this employee had no authority in respect to allowing visitors on site. Mr Edwards asked the other employee if he had allowed the two Union Officials access. He replied:

‘I got told by Nisset they were coming and had 24 hour access. I knew they were coming, but I couldn't leave the line. I said it is up to you, you can let them in, but they weren't coming for me. Which way Nisset let them in, I don't know. I didn't tell her to go let them in. Nisset is a grown person, she can make her own decisions, it is not my place.’

[9] Mr Edwards said that Ms Puth had no authority to permit visitors to enter the site and no visitor could enter without undergoing a COVID-19 temperature check and the filling out of a questionnaire. Only four persons had the authority to do so – himself, Mr Capasso, Ms Leonardi and the Engineering Manager. Mr Edwards set out in some detail the procedure for reception of all visitors to the Ingleburn site at the time, and what the CCTV showed of what Ms Puth had done to hold the automatic locking door open twice, without any visitor registration or fingerprint scanning.

[10] Mr Edwards said that he was alerted to the arrival of the visitors and went to reception. They were not there and there was no record of them signing in, or having undertaken the temperature checking. At this point, he did not know who had allowed access, but assumed they would be in the lunchroom. He went there and saw the two officials, with about 10 employees. Mr Edwards walked them back to reception to have a temperature check.

[11] Mr Edwards said that one of the matters discussed in the 18 June 2020 meeting, was Ms Puth’s allegation of bullying and harassment by Ms Leonardi. This arose from Mr Croudace’s email of 27 May 2020 which read:

‘Jannine and Nisset are extremely upset in the QA lab.

Nisset has said she was given a hard time for sending flowers to a work mates funeral.

Is this the company we are working for now?

Regards
David Croudace’

[12] Mr Edwards was so concerned with this email he held a meeting with Mr Croudace in which the following conversation occurred:

Mr Edwards: ‘Thanks for coming. I am very concerned about the contents of your email from yesterday. Can you explain to me what happened and what prompted you to write that email to me?’

Mr Croudace: ‘Janine and Nisset were complaining about getting flowers for Akhlaq and being in trouble for it. Nisset said that Lilianne Leonardi demanded that she hand over the money.’

Mr Edwards: ‘Well I have spoken to Sossio and Lilianne, and that is not correct.’

Mr Croudace: ‘Why am I the last person to find out about all of this? These two ladies were yelling and screaming in my office, I wasn't sure what I should do.’

Mr Edwards: ‘Well, what did you do?’

Mr Croudace: ‘I walked into my office, I didn't want to be part of the discussion.’

Mr Edwards: ‘You should at least come and have a conversation with me before you send emails off like that. It is very disturbing to receive an email like that with no form of investigation or discussion about what had happened.’

Mr Croudace: ‘Sorry, I was just very concerned myself at the way these ladies were carrying on. Next time I will be more thoughtful before I send an email off like that.’

[13] In addition, Mr Edwards said a separate complaint had been made about afternoon shift employees not returning to work on time after their breaks. As a result, he reviewed the CCTV footage and established that on 10 occasions from 15 April-29 May 2020, Ms Puth was late in returning to work after a break, from between 5 minutes to 38 minutes. Mr Edwards said this problem had arisen early in the year and a notice to all employees dated 3 January 2020 was posted which reads:

ATTENTION ALL STAFF

Please ensure you adhere to your BREAK TIMES by promptly commencing and returning from your 15 minute and 30 minute break each day.

Please ensure CROSS COMMUNICATION between shifts occurs on the floor. This ensures the smooth running of the next shift.

Thank you for your assistance.’

[14] Mr Edwards believed that as Ms Puth’s position involved a high level of integrity and trust, there could be no trust and confidence in her, if she was reinstated. He stated his reasons as:

(a) Given the seriousness of the COVID-19 pandemic, Ms Puth’s actions are difficult to understand and remain largely unanswered.

(b) Her actions were deliberate, and she is not prepared to comply with Company policies.

(c) Ms Puth remains intent on damaging and undermining the HR Manager and is driven by malice.

(d) She supplied misinformation and involved herself in printing and distributing deliberately altered documents.

(e) Ms Puth acted repeatedly to not comply as to taking breaks during her shifts.

(f) Ms Puth seems to think she is exempt from straightforward and obvious policy requirements, particularly in respect to the response to the COVID-19 Policy. She appears to observe only policies which she likes, or are consistent with her view of her role in the business.

Ms Lilianne Leonardi

[15] Ms Leonardi has worked in human resources management for over 18 years. To the extent Ms Leonardi’s evidence corroborates or repeats the evidence of Mr Edwards, I will not refer to it here. Ms Leonardi attached to her statement copies of all the respondent’s relevant policies in this matter. They are:

(a) The Code of Conduct;

(b) Discrimination and Harassment Procedure;

(c) Internet, Email and Computer Use Policy;

(d) Social Media Policy;

(e) Privacy and Complaints Policy; and

(f) COVID-19 Policy (in force at 29 May 2020).

[16] Ms Leonardi said that when the afternoon shift supervisor, Mr Akhlaq Kayani, passed away suddenly on 22 May 2020, Mr Edwards appointed her to be the authorised spokesperson for the Company to liaise with Mr Kayani’s family. Between 22-24 May 2020, she made contact with the family to offer support and to make arrangements for services to help the family. On 25 May 2020, Mr Edwards requested she work with the Production and Toolroom Manager (Mr Capasso) to organise a Company donation/collection for the family. A formal notice was placed on the employee Notice Board on 27 May 2020 to that effect. Mr Capasso followed up on the collection with both the Day and Afternoon shift supervisor and Mr Solis advised a collection had already taken place on afternoon shift, but some people had been excluded. Ms Puth had arranged this collection.

[17] Ms Leonardi said she had a meeting with Mr Capasso and Ms Puth on 27 May 2020, where she explained that the Company wanted to match the employee donations dollar for dollar and to communicate Mrs Kayani’s request for privacy. Ms Leonardi said she thanked Ms Puth for coordinating the afternoon shift collection and for sending flowers to the family. Ms Puth said she was not sure how much had been raised. She had purchased the flowers and was waiting for further monies to be transferred to cover the cost of the flowers. When Ms Leonardi asked for an approximate amount, Ms Puth became agitated and said ‘It’s just not my money. I can’t tell you what they want to do with it’. Ms Leonardi said she tried to calm her down and explained the Company wanted to pool the funds and match the employee contributions. Ms Puth stood up and said ‘I can’t handle this. It’s not my money, I can’t hand it over to you’. She walked out of the meeting. It was Ms Leonardi’s evidence that at no stage in the meeting, did she raise her voice, bang her fists on the table or demand the money she collected.

[18] Ms Leonardi referred to the email from Mr Croudace; see: [11] above, after he heard Ms Puth and Ms Moroney alleging that she had berated and criticised Ms Puth for organising and sending flowers to Mr Kayani’s funeral. Ms Leonardi believed Ms Puth had misrepresented their discussion and made false allegations. This constituted a breach of the Bullying and Harassment Policy. This issue was discussed in the meeting on 18 June 2020. Ms Puth repeated her allegations in the meeting and answered ‘no comment’ to questions about another conversation overheard by Mr Croudace, and whether they had complained to the Union about Ms Leonardi.

[19] In respect to the visitor access allegation, Ms Leonardi referred to the respondent’s COVID-19 Policy. Her understanding was that Ms Puth met the two Union Officials, Mr Evans and Ms Emmanuel and escorted them from reception to the meal room. In doing so, the visitors:

(a) were not initially questioned in accordance with the COVID-19 Policy;

(b) did not undergo a temperature check; and

(c) entered the site without authority from Mr Edwards.

[20] In response to this allegation in the meeting on 18 June 2020, Ms Puth said:

‘Yes I did let them in I got a phone call from Leah saying that she was outside cause we don't have an afternoon delegate. Before I opened up the gate, I spoke to Sasha and asked him if it was ok for me to open it up. He said yeah it is because they would have followed the rules and besides they would have advised the company that they were coming. And it's the Union they wouldn't be breaking the rules. So I opened the door for them Leah told me that they came to see us all lo comfort us and say hello, but they didn't tell me why they were there at site. So I just thought maybe they wanted to see how we were doing? I didn't think that I’m not allowed to do that.’

[21] After being showed the CCTV footage, Ms Puth declined to comment on further questions asked by Mr Edwards.

[22] In respect to her altered email, Ms Leonardi explained that she had corresponded with Mr Evans in respect to another employee, Janine Moroney, and the passing of Mr Kayani. Ms Leonardi regarded these emails as confidential, as they related to an existing employee and Mr Kayani. They were not intended to be circulated to other persons than the intended recipients. She attached the original emails to her statement and the altered emails (which had been placed on the Notice Board). The alterations were the deletion of the disclaimer about the prohibited use, copy and distribution of the email and her signature block had been removed and replaced with ‘Kind regards, Lilianne Leonardi’. She believed these last words had been typed into her email by someone else, without her permission. Ms Leonardi understood that Mr Edwards removed the emails from the Notice Board and reviewed video footage to establish how and when these copies were distributed. Mr Edwards had advised her that:

‘(a) the video footage showed a person by the name of Leah Emanuel (sic) placing the document on a Notice Board at approximately 4.00 pm on Friday 29 May 2020;

(b) on Friday 29 May 2020, the Applicant was observed on CCTV footage handing out copies of the same document to other employees and placing copies of the document on the tables in the lunchroom.’

[23] This matter was also discussed at the 18 June 2020 meeting. Ms Puth accepted she had made one copy, but denied she had altered it in any way. On reviewing the CCTV footage, it shows Ms Puth making multiple copies. Another employee had said she distributed them in the meal room. Ms Puth declined to answer any further questions.

[24] In respect to the unauthorised breaks allegation, Ms Leonardi said this arose after other employees were observed away from their workstations on 13 May 2020 and a complaint about how the Night Shift Supervisor had spoke to them. Mr Edwards undertook a broader review of the Afternoon shifts and established Ms Puth’s absences as set out in Mr Edwards’ evidence at [13] above. At the meeting on 18 June 2020, Ms Puth could recall only two or three instances and when asked if she had permission from her supervisor, she said ‘I think I did. I always get authority’.

[25] Ms Leonardi recorded the amount Ms Puth earnt in the 26 weeks prior to her dismissal as $59,431.94. Ms Leonardi did not believe reinstatement would be appropriate as the respondent had lost trust and confidence in her. In addition to the reasons stated by Mr Edwards, Ms Leonardi added:

(a) Ms Puth had deliberately acted in a way to undermine her position and spread unjustified misinformation about their dealings.

(b) Ms Puth deliberately attempted to portray her as uncaring or indifferent to Mr Kayani’s passing.

(c) The attacks on her in the emails were personal and Ms Puth actively participated in their distribution to undermine her and showed she was less than truthful, and displayed little or no remorse for her actions.

(d) Ms Puth had knowingly breached the COVID-19 Policy and the Company’s requirements as to taking breaks.

(e) Ms Puth’s attendance at the meeting on 18 June 2020 displayed that she did not contest or refused to comment on matters when she was aware her employment was at risk.

(f) Ms Puth’s conduct demonstrated little accountability, and no remorse or contrition for her actions.

Mr Sossio Capasso

[26] Mr Capasso was charged by Ms Leonardi to collect donations from workers for the family of Mr Kayani, particularly in respect to the afternoon shift. It came to his attention (Mr Solis told him) that a collection has already been undertaken by Ms Puth.

[27] As the Company intended to match the donations from employees, a meeting was arranged with Ms Leonardi and Ms Puth on 27 May 2020 to discuss the matter. Mr Capasso recalled the conversation as follows:

Ms Leonardi: ‘The company wants to assist the family and intends to match the contribution by employees. I understand that you may have completed a collection.’

Ms Puth: ‘I have coordinated it over the weekend with some other employees. I organised to buy some flowers. I am still wailing on some money owed to me by other employees.’

Ms Leonardi: ‘That’s really good that you collected, I appreciate that. What about the money you have been collecting from the other employees, not from the weekend?’

Ms Puth: ‘I have collected the money.’

Ms Leonardi: ‘How much have you collected?’

Ms Puth: ‘I am not sure, I think it is about $300.’

Ms Leonardi: ‘Can you ask the other employees if they can pool the money together?’

Ms Puth: ‘It is not my money, I can't tell the other employees what to do with the money.’

Ms Leonardi: ‘You need to go down and ask the employees for the money.’

[28] After this point, Ms Puth appeared animated and in an elevated tone said:

‘It is not my money, I can't hand it over to you. I can't handle this. I don't know what is going on.’

She then left. Ms Leonardi asked him to further deal with the matter. Mr Capasso said that at no stage did Ms Leonardi:

  criticise Ms Puth or what she had done;

  raise her voice or speak in an angry or animated fashion; or

  demand the money.

Her face was not red and the veins in her neck were not raised. Ms Leonardi did not say:

You can’t contact Akhlaq’s family and you have no right under the PVA roof to do what you have done and you have to stop it’.

[29] Mr Capasso said the intention was for both of them to report on their fundraising so that once all the money had been pooled, the Company was able to match it dollar for dollar.

[30] Mr Capasso said that as a result of the passing of their colleague, the Company arranged for counselling of anyone who requested it. Around 28 May 2020, Mr Capasso said to Ms Puth ‘Lilianne is aware that you requested access to counselling and will arrange an appointment with counselling for you’. Ms Puth replied ‘I want nothing to do with that woman. I will organise it myself.

Mr David Croudace

[31] Mr Croudace’s evidence related to a heated conversation he overheard between Ms Puth and Ms Moroney on 27 May 2020, in which Ms Puth appeared very angry and critical of Ms Leonardi. Ms Puth kept referring to Ms Leonardi as ‘she’ or ‘her’ and claimed Ms Leonardi was angry with her for collecting the donations and sending flowers to Mr Kayani’s family and had demanded she hand over the money.

[32] Mr Croudace was drawn into the conversation by Ms Puth to get him to express an opinion about Ms Leonardi, particularly making reference to her culture. Mr Croudace responded by saying ‘I wasn’t there. I wasn’t part of the discussion’. Nevertheless, he had the impression that Ms Puth may have been treated unfairly. This was why he sent the email to Mr Edwards which read ‘Is this the company we are working for now?’. However, Mr Edwards told him the next day that Ms Puth’s account of the conversation was incorrect. He then assured Mr Edwards that he would be more thoughtful before sending a similar email in the future. However, he remained concerned about the discussion he had overheard.

Mr Jainer Solis

[33] Mr Solis was the Afternoon Shift Supervisor and stated that there was an expectation of the respondent to observe strict adherence to attendance on shift. Between 21-29 May 2020, Ms Puth had not, at any time, requested an extended break, paid or not, and was not permitted to do so. This applied to all employees and no employees in this period were given permission to have extended tea or lunch breaks.

For the applicant

Ms Nisset Puth

[34] Ms Puth came to Australia from Cambodia in 1999. She is married with a 12 year old son. Her husband also works in manufacturing and they have a mortgage on their home. Ms Puth joined Precision on 23 September 2003 as a casual labour hire employee and was made a permanent machine operator on 11 August 2004. She was promoted to Senior Quality Inspector (formerly Quality Assurance Supervisor) in 2009.

[35] Ms Puth described her role and said that in 17 years, she had received no warnings and had no disciplinary meetings. She worked closely with the Production Supervisor and had permission from her manager to use the printer to copy documents for herself and her co-workers. She also claimed that her meal breaks were often interrupted, or would be running late due to operational requirements. She was not a ‘clock watcher’ and would often stay back after her shift finished unpaid, to ensure the operations ran smoothly. Her role also involves her moving around the worksite frequently.

[36] Ms Puth said that shortly prior to the death of her friend of over 10 years, Mr Kayani, on 22 May 2020, she had also experienced losing two others close to her – a good neighbour in April 2020 and her brother in law on 11 May 2020. This made her very sad and not herself. She had trouble concentrating.

[37] Ms Puth understood that in Mr Kayani’s culture (as does her own), it requires fast attention when a person passes away so that their spirit will reach heaven. This is why she acted quickly to arrange for a collection to send flowers to the family. Ms Puth claimed that on 23 May 2020, she received permission from Ms Debbie Turner (another Quality Controller) to contact Mrs Kayani to send flowers for the funeral. She initially did this with three other co-workers and spent $200 on flowers herself. Ms Puth showed Mr Croudace and other co-workers a photo of the flowers. On 25 May 2020, other co-workers on afternoon shift found out about the flowers and insisted on contributing. The amount then exceeded $200 – about $531. Ms Puth asked Ms Turner what she should do with the extra money. Ms Turner had been in contact with Mrs Kayani, who had asked the remaining money be donated to the Heart Foundation.

[38] Ms Puth said that on 27 May 2020, Mr Solis told her that Mr Capasso had asked him to tell her to organise the collection. She told him ‘I’m sorry, I have done my part for Akhlaq already’. Shortly thereafter, Mr Capasso told her HR wanted a quick chat. She was concerned to let Mr Croudace know. Mr Capasso said ‘Don’t worry about David’.

[39] Ms Puth said that as she was upset in the meeting, she could not recall exactly the discussion. Her version is as follows:

Ms Leonardi: ‘We’ve heard that you’ve been collecting money for Akhlaq.’

Ms Puth: ‘No I didn’t collect money, I went on my own and get the flowers. People gave me money when they heard what I was doing.’

Ms Leonardi: ‘So you did that on your own personal level?’

Ms Puth: ‘Yes, I went and spent my own money but then when others heard this they wanted to share in it. I spent about $200 on the flowers.’

Ms Leonardi: ‘You can’t contact Aklhaq’s family and you’ve got no right under the PVA roof to do what you’ve done and you have to stop it.’

Ms Puth: ‘I didn’t collect, they gave it to me when they heard. I didn’t contact his family, Debbie did.’

Ms Leonardi: ‘Who is Debbie?’

Ms Puth: ‘Another QC.’

Ms Leonardi: ‘So you have money left over after buying the flowers?’

Ms Puth: ‘Yes’

Ms Leonardi: ‘How much money have you got?’

Ms Puth: ‘I can’t remember exactly but about $300, and we are donating the money to the Heart Foundation.’

Ms Leonardi: ‘Put the money you got in an envelope and give it to Sossio.’

Ms Puth: ‘No, because this money has to go to heart foundation because that’s what his wife wants. We’ve already agreed to give it to HF.’

Ms Leonardi: ‘You can’t give it to the heart foundation, it has to come to us and we do what his wife wants. This is the instruction, you have to put the money in the envelope and give it to Sossio.’

Ms Puth: ‘No. If you want that money, you can go and ask my afternoon shift friends.’

‘I became scared and upset, I was crying by this point. I said to Sossio: ‘I can no longer deal with this.’’

[40] When she left the meeting and returned to the QC room, Mr Croudace observed she was upset and asked what was wrong. She replied:

Ms Puth: ‘I just had a meeting with HR. She told me I can’t contact Aklhaq’s family, I can’t do what I’ve done with the flowers and I have to stop. She told me I can’t give the money to the Heart Foundation.’

Mr Croudace: ‘I don’t know what to say. You did nothing wrong, it was beautiful what you have done for Akhlaq.’

Ms Puth: ‘I’m not upset over how they spoke to me, I am upset because in my culture I need to do something peaceful and calm for Akhlaq’s spirit within 7 days to ensure his spirit reaches heaven.’

Mr Croudace: ‘If I knew that they were taking you upstairs for that, I would not have let it happen and would have stopped it.’

[41] Shortly after, Ms Moroney came into the QC room very upset. Their conversation was:

Ms Moroney: ‘What happened? Sossio came to my station and said you are upset about the money?’

Ms Puth: ‘I had a meeting with HR and they told me that I can’t contact the family or give the money to the Heart Foundation. Have I done anything wrong? The way HR spoke to me, I feel like I’ve done something wrong. I’ve never been so scared Jannine. I’ve never been spoken to like that, not even my own mother has spoken to me like that.’

Ms Moroney: ‘No you’ve done nothing wrong dear. We will do what Aklhaq’s wife requested and donate the money to the Heart Foundation. We’re not giving them the money.’

[42] Ms Puth believed Mr Croudace was in his office when she was having the conversation with Ms Moroney. However, you can hear conversations through a glass door.

[43] On 28 May 2020, Ms Puth transferred $331 to the Heart Foundation. The same day, counselling and time off was offered to her and others by Mr Capasso. When he later said HR had organised counselling, she replied ‘No, I will go to see my own doctor. I don’t want anything to do with her’.

[44] Ms Puth said that on 29 May 2020, Ms Emmanuel rang her around 3pm to say they were coming to the site to offer support for the workers at the loss of Mr Kayani. She asked a former Union delegate what to do:

Ms Puth: ‘The organisers are coming in. Do you think it is ok to let them in?’

Mr Banic: ‘It shouldn’t be a problem because they have their right of entry. Do you want me to let them in? I can do it.’

Ms Puth: ‘No I can do it, it’s ok.’

Ms Puth claimed she had not asked Mr Banic for permission and had not previously done so. Further, she was not aware of a policy regarding restrictions on visitors during COVID-19 and could not recall being trained on the policy.

[45] When they arrived, Ms Puth let Ms Emmanuel and Mr Evans in. She believed they would have seen the instructions about what to do and had complied. Ms Puth said that Mr Evans gave her a printed copy of an email chain which she had not seen before. It was about a meeting Ms Moroney was told to attend, but she should not do so without notice or details of the meeting. He asked her to hand copies to other members. She agreed to copy it and at around 8pm, she made about 10 copies and left them on the canteen table. She stated she did not ask permission to copy the document, because Mr Croudace had left for the day and she had not been refused a request to use the printer before. She did not believe the email was confidential and trusted the Organisers. She knew Ms Moroney had been receiving help from the Union about attending management meetings without notice or warning.

[46] From 1-10 June 2020, Ms Puth was feeling very stressed and anxious as a result of the actions of HR and Mr Capasso on 27 May 2020, and was grieving at the loss of her friend and the others in her life. She consulted a doctor and received a doctor’s certificate.

[47] Ms Puth said that on 16 June 2020, she was called to a meeting with Mr Edwards, Ms Leonardi and Mr Capasso. She attended with her support person, Mr Banic. Mr Edwards read through the allegations in the show cause letter, but she was not given an opportunity to respond. When Mr Banic interrupted, Mr Edwards said it was not the time for responses and she could do so in a reply meeting on 18 June 2020.

[48] At the 18 June 2020 meeting, Ms Puth responded to Ms Leonardi’s complaint of undermining her as follows:

‘I didn’t bully or harass Lilianne and I didn’t make any non-factual allegations about her. Sossio came to get me on that day and he told me that we were going to see HR but he didn’t tell me what the meeting was about. When we got there, Lilianne said to me that apparently I was collecting money from employees and she wanted to know where the money is. I tried to explain about the flowers that had been bought for Akhlaq’s funeral and that we were going to donate the rest of the money to the Heart Foundation under the memory of Akhlaq. Lilianne told me that I had no right nor permission to do what I had done and stated that I am not allowed to contact Akhlaq’s family. Lilianne told me I had no authority under Precision Valve Australia to collect the money from other workers, that I cannot give that money to the Heart Foundation, and that she stated I need to give that money to the company and the company will do what Akhlaq’s wife wants.

I told Lilianne that I did this on my own personal level, that I did not collect the money from others, that others on the afternoon shift wanted to share with what I did and gave me money. I did not contact his wife and that Debbie Turner had contacted Akhlaq’s wife and gotten permission from her to send the flowers and to donate money to the Heart Foundation.

Lilianne then instructed me to put the money in an envelope and give it to Sossio, which I refused to do. I told her that I could not give her the money as it belonged to my friends on the afternoon shift who had given it to me.

During the meeting, Lilianne raised her voice and her face went red and the vein on her neck was visible. I became upset and scared during the meeting, I cried and told Sossio that I could no longer deal with the situation and that I could not give them the money.’

[49] Ms Puth said there were two breaks in the meeting as she was upset and emotional when talking about Mr Kayani. At one point, Mr Evans challenged the reference to Mr Croudace overhearing her conversation with Ms Moroney. She said she did not want to make a complaint about Ms Leonardi and decided to let it go and move on.

[50] As to the allegation about her letting the Union Organisers in, she conceded she had done so. When shown the CCTV footage, she first queried if she could be seen, but then agreed it was her. As to the altered email allegation, Ms Puth firstly did not understand what it was about, but then denied ‘removing HR’s signature and inserting her name’. Ms Puth claimed that Mr Evans confirmed he was the one who altered the email. Mr Edwards asked her if she used the printer. She agreed she did and kept a copy and said ‘I normally ask permission’. When shown the footage in the meal room, Mr Puth did not want to answer Mr Edwards’ question ‘if she could be seen in the footage?’ because she wanted to know when the camera had been connected, as she believed the camera would only be on if theft was suspected from the meal room. She claimed that no one was told the camera was in use. At no time, did she say ‘No comment’. Ms Puth explained she only gave the email to others because Mr Evans asked her to and she did not consider it to be confidential.

[51] In respect to the excessive breaks allegations, Ms Puth responded:

‘I have lost a few people in my life including Akhlaq. My next-door neighbour passed away in April and my brother-in-law passed away in May. Each time Akhlaq comforted me and supported me and told me to take it easy and take extra breaks if I needed to. Akhlaq gave me permission on 15 April 2020 and 15 May 2020 to take longer breaks. I don’t recall the other two occasions. But you guys had been so kind and caring following Akhlaq’s passing that I thought you would be understanding if I took some extra time.’

[52] At the end of the meeting, Mr Edwards asked if she had anything further to say. She replied:

‘I cannot accept the bullying and harassment allegation, as I am not like that and how can I raise my son to be a good person when his mother has been accused of being a bully. Before I left home today, I saw my son’s award from school that was awarded to him for being a polite, respectful, and honest student. I cried when I saw it and said to myself at the time “but your mum been called a bully”.’

[53] Ms Puth believed that Mr Edwards did not want her explanations and only wanted yes/no answers. He said another meeting could be scheduled and when Mr Evans asked when a decision would be made, Mr Edwards said she would need to come for another meeting. However, Ms Leonardi interrupted and said there was no need for another meeting. Ms Puth said she did not receive a copy of the meeting minutes taken by Ms Leonardi. She was dismissed by letter on 23 June 2020.

[54] Ms Puth added that since April 2020, she had been feeling down and had trouble coping. She started calling her husband while on a break and sometimes this would mean the break ran over time. Her stress was made worse after 27 May 2020, and she may have taken some extra time on a break because she was upset.

[55] Ms Puth responded to Mr Capasso’s statement as follows:

(a) Mr Capasso did not tell her the Company was going to match the employee contributions dollar for dollar.

(b) She did not tell him she was waiting on money from others, but did state she collected the money for flowers. Rather, others gave her money when they learnt she had already bought the flowers.

(c) Ms Leonardi did not tell her to ask the employees for the money.

(d) She said in the meeting that she had permission from Mrs Kayani to donate the additional money to the Heart Foundation. She could not give it back to the Company because it had already been sent to the Foundation.

(e) She looked at Mr Capasso and said ‘I can no longer deal with this’ and Ms Leonardi told him to go down and speak to the afternoon shift crew.

[56] In response to Mr Edwards’ statement, Ms Puth said:

(a) Mr Edwards did not play two of the four excerpts of the CCTV footage as he claimed.

(b) She did not say ‘I opened up the gate’. Rather, she said ‘if it was OK for me to open it up’.

(c) She did not say she did not know why the officials were on site. Ms Emmanuel told her; see: [44] above, and told Mr Edwards she did not think the Company would have a problem with the purpose of the visit.

(d) She did not meet Mr Evans and Ms Emmanuel in reception. Rather, she only opened the door to let them come through.

(e) She was on leave from 19 December 2019 to 28 January 2020, so she was not aware of the afternoon shift being ‘directly’ approached about the taking of long breaks. Nor had she seen any notice on the Notice Board to that effect.

(f) She and Mr Evans did not seek access to CCTV footage about breaks because they were not told of such footage.

(g) She denied that she was not ‘open and honest’ in her responses in the 18 June 2020 meeting. She had provided an explanation for each allegation on multiple occasions.

[57] In response to Ms Leonardi’s statement, Ms Puth said:

(a) No one was excluded from her collection. Mr Solis declined to contribute and she only took money from those who approached her.

(b) She did not tell Ms Leonardi that she was waiting for money for flowers.

(c) Ms Leonardi did not try to calm her down in the meeting. She raised her voice and her face became red.

(d) She did not say to anyone that Ms Leonardi slammed her fists on the table.

(e) She had not sought Mr Banic’s permission (to let the Organisers in); rather, she only asked his opinion as a former Union delegate.

[58] As to the ‘harshness’ of her dismissal, Ms Puth said:

(a) She has not found another job which is exacerbated by COVID-19. Her role at Precision is very specific and not relevant to other manufacturing jobs.

(b) Her dismissal has a big impact on her life both financially and emotionally. It will be difficult to support her son and pay the mortgage. With two incomes, she was financially supporting her parents in Cambodia. Now she may not be able to do so.

(c) She had flexibility with work at Precision which allowed her to share looking after her son before school. There is no one else who is able to do this.

(d) After 17 years at Precision, the Company and the workers were like her family.

(e) She was very good at her job and had never received any warnings and had not been counselled about her behaviour.

(f) She wanted to clear her name, particularly that she was a bully. Going back to work will prove all the allegations were untrue. She wants ‘justice on my side’. No one will employ her with these allegations against her name.

(g) She came to Australia to have a good life, to make a contribution and give back to the community.

Ms Puth attached evidence of a number of applications for employment she has made (Ex F).

Ms Jannine Moroney

[59] Ms Moroney has been employed by Precision for 31 years. For most of this time, she had been the workplace delegate, until stepping down in May this year. Ms Moroney had known Ms Puth for the 17 years she had been employed at Precision, and they worked together on shifts for around 10 years. Ms Moroney had never known Ms Puth to get into any trouble at work or attend any performance or disciplinary meetings.

[60] Ms Moroney said that on 27 May 2020 at around 4pm, Mr Capasso informed her Ms Puth was very upset and crying about the money collected from the afternoon shift for the family of Mr Kayani. Mr Capasso had said the money should be given to the Company. Ms Moroney replied:

‘What are you talking about? You are not getting the money as someone has been in contact with Akhlaq’s wife and she requested us to donate the money to the Heart Foundation in Akhlaq’s memory.’

Ms Moroney then went to the QC room where she observed Ms Puth visibly upset. She told her that she had been taken to a meeting with Ms Leonardi and not told what it was about. She had said words to the effect:

‘They are not getting the money. We will do what Akhlaq’s wife requested. If you don’t think you can look after the money and you think that you will be pressured to give up the money, then I can take it and hold onto it until we donate it to the Heart Foundation’. I further told Nisset that she had done nothing wrong.’

[61] As to the COVID-19 Policy, Ms Moroney only became aware of the Policy when she returned from sick leave in mid-June 2020. Management told her she needed to sign a clearance to say her leave was not COVID-19-related. She was not told anything about the Policy or asked to sign anything which stated she understood the Policy.

[62] Ms Moroney said that in July 2020, Mr Edwards had a meeting with the afternoon shift staff to explain how to correctly check their temperature and the need to inform management if the temperature was outside a certain range. They were all asked to sign a document that they understood how the thermometer worked. After this meeting, Ms Moroney asked Mr Edwards for more hand sanitiser in the factory. At first, this was denied, as it was said people were stealing it. A week later, more sanitiser appeared.

[63] Ms Moroney believed Ms Puth was respected and most of her colleagues have confidence in her work and had no issues if she was to return to work. Her work was always of a high standard.

[64] Ms Moroney did not agree that Mr Edwards was the only person who could let visitors in through the access door. It can be opened from the inside by anybody and only requires a passcode from the other side. Ms Moroney said she had frequently let Union Organisers onto site through the reception area. They would usually go to the canteen. The last time she had let Union Organisers in via the access door was during enterprise bargaining negotiations around August/September 2019.

Mr Richard Warren

[65] Despite the objections of Mr Brown, a statutory declaration was admitted into evidence from Mr Warren with the usual caveats as to relevance and that Mr Warren was not required for cross examination. Although Mr Warren held various management roles, such as Quality Control Manager, Assembly Division Manager, Continuous Improvement Manager and Business Support Manager responsible for HR, he retired over 10 years age. He knew Ms Puth for 7 years and found her to have been an exemplary employee.

[66] In my view, given the length of time Mr Warren had not been in the employ of the respondent, his comments about the policies and procedures of the Company about the use of the photocopier collections for staff and admission of Union Officials, could not be relevant to the events and policies applying in 2020.

Mr James Evans

[67] Mr Evans advised Mr Edwards on 27 May 2020, that he and Ms Emmanuel would be visiting the Ingleburn site to hold discussions with members. Between 27-29 May 2020, Mr Evans was exchanging emails with Ms Leonardi about requests for employees to attend meetings with management. Mr Evans said his intention was to copy the email chain and take them to members and other employees, to advise they need not attend any informal meetings that management might call. The Union believed such meetings were unnecessary and inappropriate.

[68] It was Mr Evans’ evidence that when he was printing the emails, there was a technical issue which would not allow the Company disclaimer and Ms Leonardi’s signature to display correctly. He deleted the error message and typed in Ms Leonardi’s name because employees would not know who the other person was in the email chain.

[69] Mr Evans said that when he and Ms Emmanuel arrived after contacting Ms Puth, there was no one at reception. He saw a sign indicating they had to record their temperature, but he could not see a thermometer. Mr Evans claimed he was unaware of any specific COVID-19 policies to follow, apart from answering a few standard questions, which they did. They signed into the computer system and Ms Puth arrived to let them in.

[70] Mr Evans claimed he and Ms Emmanuel spoke briefly to Ms Puth about how everyone was doing after the loss of their colleague. He gave Ms Puth a copy of the email exchange and asked her to hand it around to other employees. She agreed to do so. While they were speaking in the meal room, Mr Edwards and Mr Capasso walked by, but he was unsure if they noticed them. After a few minutes, Ms Puth left to go to her workstation and Mr Edwards came and spoke to him and Ms Emmanuel. He could not recall anyone else being in the room. Mr Edwards explained the temperature check process and they went back to reception to do it.

[71] Mr Evans said he spoke to numerous employees about the email chain and handed out copies, including to Mr Capasso. Ms Emmanuel put a copy on the meal room Notice Board. Mr Evans also emailed it to all employees. They left site around 6pm. It was Mr Evans’ evidence that in the meeting on 18 June 2020, he told Mr Edwards that he had changed the signature (Mr Evans made no other comment about this meeting).

[72] After hearing of Ms Puth’s dismissal, Mr Evans heard that employees were shocked and she seemed quite popular. He decided to set up a petition seeking her return and took it to the site on 1 July 2020. After passing it around, 52 employees signed the petition which said ‘We need you to bring back Nisset Puth’.

The respondent’s reply

Mr Edwards

[73] In a reply statement, Mr Edwards disputed that Ms Puth was permitted to let the Union Organisers on site or that she did not need permission from her Manager to use the photocopier. He also denied she was permitted to vary her break times, without the express permission of her Manager.

[74] Mr Edwards said it was not correct that Ms Puth was unaware of the respondent’s COVID-19 Policy. Training records show she attended COVID-19 Group Policy training on 11 March 2020. Further, an email reminder was sent by him to all employees on 27 April 2020 and a sign on the door leading to the reception reads:

‘Attention all staff

In the interests of safety please do not let any visitors through the door, unless you are the person they have signed to see’.

Mr Edwards said this sign was on the door on 29 May 2020.

[75] Mr Edwards believed Ms Leonardi’s notes of the 18 June 2020 meeting were consistent with his recollection and should be preferred over Ms Puth’s evidence. He specifically denied Mr Evans making any admissions in the meeting about the removal of the signature block and related content in Ms Leonardi’s emails. Mr Edwards said Ms Puth did not seek any approval to take additional or longer breaks. He had never said anything to suggest she could take extra time on any break. If she was unwell during a shift, she should have sought permission to leave work.

[76] In response to Mr Evans’ statement, Mr Edwards had no authority to permit visitors on site and he had personally met Mr Evans on previous occasions when he had visited. Mr Edwards said that at no time did Mr Evans claim responsibility for altering Ms Leonardi’s emails.

Ms Leonardi

[77] In reply, Ms Leonardi responded to Ms Puth’s statement as follows:

(a) She rejected Ms Puth’s contention that a late return to work from a break would have no impact on the business. Any late return delays the start up and operation of machinery.

(b) She denied her face was red and/or the veins on her neck were raised in the meeting on 27 May 2020. The meeting was short, calm and business like.

(c) She denied Ms Puth was unaware of the COVID-19 Policy; see: Mr Edwards’ evidence at [74] above.

(d) Ms Puth had told her she only had made one copy of the document, which was contrary to the CCTV footage.

(e) Ms Puth made no mention of any concern with the camera in the meal room.

(f) She said that there are no business records of Ms Puth being granted extra or additional breaks from April to 19 May 2020 and she was unaware of any circumstances which could have made her ‘stress’ worse. Nothing was said by herself or Mr Edwards on 28 May 2020, that employees could take additional breaks or time away from work.

In respect to Mr Evans’ statement, Ms Leonardi said that there was no comment made by him during the 18 June 2020 meeting, admitting to changing the emails and/or her signature.

Oral evidence

For the respondent

[78] In further evidence in chief, in response to the further statement of Ms Mooney, Mr Edwards said Ms Mooney ceased being a Union delegate in May 2020 when she resigned. Mr Edwards gave the following evidence in relation to site access:

‘The requirements were that people would come in, they would sign in, they would go through a questionnaire, they would take their temperature, they would record it, they would then - I would then get a text message and an email stating who had arrived on the site. I would then go down to reception. I would greet them at reception, check that they had done the induction correctly, ask them to sanitise their hands and then escort them into the lunch room or wherever they were required to go.’

[79] Mr Edwards drew a distinction between post-COVID-19 access and Ms Moroney’s understanding of pre-COVID-19 access. In the latter, a visitor signed in the person they were to see, and that person would collect them from reception. If Ms Moroney allowed Union Officials on site, she could only do so by ‘thumb print’ recognition on the door.

[80] In cross examination, Mr Edwards confirmed he is the only person who can make the decision to dismiss an employee, but other managers can issue warnings. Mr Edwards said he had advice on Ms Puth’s dismissal letter and had relied on another person’s report of the bullying and harassment allegation and he had viewed the CCTV footage of the access granted to the Union Officials and Ms Puth’s distribution of Ms Leonardi’s document.

[81] Mr Edwards understood Mr Croudace’s email arose from Ms Puth allegedly being given a hard time by Ms Leonardi on 27 May 2020, for sending flowers to a workmate’s funeral. Mr Edwards also spoke to Ms Leonardi and Mr Croudace. He did not accept Ms Leonardi had demanded Ms Puth hand over the money collected for the flowers.

[82] Mr Edwards was taken to various points in the CCTV footage when he was in the meal room with the Union Officials. The CCTV footage showed himself, Ms Puth, Mr Evans and Ms Emmanuel in the meal room. When queried about his evidence that there were 10 employees in the meal room, Mr Brown objected and made the point that the case is not about how many people were in the room, but that Ms Puth let the Union Officials on site (from my own observation, I could not be satisfied that there were only 4 people in the room, as the CCTV footage appears to show one section of it). Mr Aghazarian said this evidence goes very much to Mr Edwards’ recollection of events that day.

[83] In the CCTV footage of Mr Evans, Ms Puth and Ms Leah Emmanuel (the other Union Official) at reception, Mr Edwards agreed Mr Evans can be seen pulling a piece of paper from the machine next to a computer and this is the required questionnaire. If he had answered incorrectly, the ticket out not have printed and he (Mr Edwards) would receive a warning text and email that access had been denied. He had received two messages in respect to Ms Emmanuel and Mr Evans, alerting him to two persons arriving who had passed the questionnaire. Mr Edwards identified the list of managers who are on the drop down list and can sign a visitor in. The list had been refined to only have senior managers authorised. The list had not been advised to all employees. Mr Edwards agreed that the access door can be opened from inside by anybody, and that it was possible than a person, other than those authorised managers, could let someone in. However, the sign on the back of the door was intended to prevent that. He agreed this is not contained in any written policy. Nevertheless, Mr Edwards claimed Ms Puth breached the policy which states ‘Please check with your management as entry hour restrictions might apply in your facility’. The policy was provided in a PowerPoint presentation to most employees between 11-29 March 2020. Although he had not personally observed the presentations, the training records identify Ms Puth participated in the training. Mr Edwards did not know which manager provided this training to employees on Ms Puth’s shift. Mr Edwards denied that people simply signed the printout, but did not attend actual training.

[84] Turning to Ms Puth’s alleged unauthorised copying of a confidential and privileged document (the email chain), Mr Edwards believed the copies were made on the Company photocopier, which can only be used for personal purposes if permission is given by a direct manager. Mr Edwards had seen both the original and altered emails exchanged between Ms Leonardi and Mr Evans on 2 June 2020, in which she alleged Mr Evans had tampered with her email and removed Precision’s disclaimer and her signature. In any event, Mr Edwards did not find that Ms Puth had personally manipulated the email’s content.

[85] As to the sign on the back of the access door; see: [74] above, Mr Edwards understood it had been placed there in January 2020 after a salesperson came through reception and tried to sell things to employees. This is the only door which separates the office from reception. There is another door to access the meal room.

[86] Ms Leonardi confirmed Ms Moroney was on leave when the first COVID-19 training was conducted. However, records show she participated in refresher training on 30 June 2020. In any event, the COVID-19 Policy was placed on the Notice Boards after 27 April 2020 and was posted above the Bundy clock. Mr Moroney was not one of the registered and permitted persons who could open the door between reception and the office. Ms Moroney was aware of the strict procedures of how and when visitors could be granted access to the site and their fingerprint would not be recognised by the keyboard, as they were not authorised to be granted access.

[87] In cross examination, Ms Leonardi said that Mr Edwards spoke to her on 28 May 2020 about the meeting she had with Ms Puth the day before. She confirmed that Mr Edwards had appointed her to be the only person to communicate with Mr Kayani’s family on behalf of the Company. She had primary responsibility for coordinating the collection. Ms Puth had been telling other employees that she had screamed, yelled and slammed her fists on the table and had demanded the money back she had collected.

[88] As to the bullying and harassment allegation, Ms Leonardi had verbally complained to Mr Edwards about Ms Puth’s conduct. She told him she had felt undermined by Ms Puth. Ms Leonardi said she had no further direct interactions with Ms Puth after 27 May 2020, until the 18 June 2020 meeting. Returning to the bullying allegation, Ms Leonardi believed Ms Puth had engaged in repeated unreasonable behaviour towards her by deliberately choosing to undermine her position as HR Business Partner and knowingly spreading false information. She believed Ms Puth may have had n a part in altering her emails.

[89] Ms Leonardi said that she had not been involved with the writing and rollout of the COVID-19 Policy, because she was not with the business until May 2020. Ms Leonardi understood that prior to 18 June 2020, the Company was not electronically recording visitor temperatures and was using a questionnaire for visitors after manually testing temperatures. Records were kept for four weeks for contact tracing purposes.

[90] Ms Leonardi said she was aware of the process by which visitors signed in to enter the site. She understood that the drop-down list named six persons – her, Mr Edwards, the IT Manager, Mr Capasso, the Finance Manager and the Plant Controller. Mr Edwards’ understanding was that it was four managers, but there may have been four at the time. Ms Leonardi also relied on the strict entry requirements in the Policy which state ‘Please check with your management as entry hour restrictions may apply in your facility’. She agreed the policy does not say anything about non-essential visitors not being permitted until further notice. However, it was not correct that this direction was not issued to employees until 30 June 2020. Refresher training was given on 26 and 30 June 2020 relating to the group template on the COVID-19 Policy.

[91] Ms Leonardi was asked about a redacted document which had details of verbal warnings to a person for taking excessive breaks. The 14 May 2020 discussion recorded in her evidence was not about the warnings, but concerned a complaint against the Night Shift Supervisor for the way he spoke to three employees.

[92] In re-examination. Ms Leonardi was asked questions about the sign on the inside of the door which allowed entry from reception to the office and said it had been there when she first arrived at the site.

[93] In cross examination, Mr Capasso said that he understood the supervisor conducted the employee training on the 10 March 2020 COVID-19 Policy and he did so individually if employees were absent at the time. Mr Capasso said that when he conducted the training he read through the policy, handed it out and anyone could keep a copy, if requested. They then signed off on the document. Mr Capasso did not collect the signatures for the Group Template Training dated 11 March 2020 – Mr Kayani did.

[94] Mr Capasso said he saw a photo of the flowers sent by Ms Puth to the Kayani family on the Notice Board. He took a picture of the photo and sent it to Ms Leonardi.

[95] Mr Capasso agreed he was the author of the two letters confirming two verbal warnings issued to Ms Puth during meetings held on 5 June and 15 July 2020 concerning her late return from a break (Exs C and D). Mr Capasso said that Ms Puth was not the only person issued with such warnings and two people on night shift were under investigation. He confirmed that a verbal warning is not an official warning and is usually the first response to an issue of that kind. Mr Capasso did not consider these lateness warnings were any higher this year. It is just that they come in waves – people are reminded of their obligations, but then slip back into the same practice and have to be reminded again.

[96] Mr Capasso said he had been employed by Precision for 11 years and although Ms Puth was not on the same shift as he was, they do interact at shift changeover and he had worked with her before. He confirmed he had no issues with her performance. However, he would find it difficult to trust her if she was reinstated, given what he now knows about other concerns than simply the lateness issue. He agreed he was not a witness to the issues about Ms Puth undermining Ms Leonardi’s position.

[97] In oral evidence, Mr Croudace said he had worked for the respondent for 12 years. He was Ms Puth’s manager, but did not work on her shift. The Production Supervisor looks after all staff on night duty. Nevertheless, Mr Croudace worked at least one and up to three hours a day with Ms Puth when their shifts overlapped.

[98] On the day of the conversation between Ms Puth and Ms Moroney he was in his office adjacent to the QA laboratory a few metres away from them. He said his recollection is generally consistent with Mr Edwards’ understanding of what had been said.

[99] Mr Croudace was played the CCTV footage commencing at 4.09.15pm, which showed Ms Puth having a discussion with Mr Capasso. He had left when he had a discussion with Ms Puth. At a point shortly after, the footage only shows Ms Puth in the frame until Ms Moroney appears.

[100] Mr Brown raised an objection to this line of questioning after 35 minutes, given no other witnesses had contested Mr Croudace’s recollection of the conversations. Mr Croudace agreed Ms Puth was very upset about her discussion with Ms Leonardi. He agreed that from what Ms Puth had claimed, it appeared unfair to her.

[101] Mr Croudace agreed there were no issues with Ms Puth’s performance in the eight years he had been a Quality Performance Manager. If Ms Puth was reinstated, he would have confidence in her ability to perform her role, but he could not say if she should be reinstated, as he did not know all the facts surrounding her dismissal. If these facts related to her role, it might cause an issue.

For the applicant

[102] In examination in chief, Ms Puth confirmed she had received no income since her dismissal. She had been looking for work since that time and provided evidence of job applications and replies.

[103] In cross examination, Ms Puth agreed an important part of her role is to perform a line clearance check so production can start. This could be required at any time if there is a breakdown or a changeover. Other employees cannot work unless the clearance is signed off. She accepted she was required to be punctual and available. Ms Puth acknowledged that longer breaks are only permitted with the approval of her manager.

[104] In respect to the meeting with Ms Leonardi and Mr Capasso, she agreed she was not very happy with the meeting and the CCTV footage shows her waving her hand and appearing very serious. However, Ms Puth said she was upset, but not with Ms Leonardi, only about what she said about handing back the donations. She did not say she had collected the money or that she was waiting on money from others. She told her she had organised with three others to send flowers to the funeral, as it had to take place quickly. She could not recall Ms Leonardi saying she appreciated what she had done. Ms Leonardi asked her how much she had collected and she replied ‘I think about $300’. When asked about being told about the dollar for dollar matching by the Company, she answered by referring to her own culture which avoids talking about money or matching amounts where someone has passed away. She then said she could not recall the dollar for dollar comment. She claimed Ms Leonardi demanded she put the money in an envelope and hand it to Mr Capasso. She replied ‘I can’t give it to you, is all my friends’ money’. She denied saying ‘I can’t tell the other employees what to do with the money’.

[105] When asked if her recollection was clouded by her anger, she replied she was so upset because she had not been spoken to like that before and recalled that in the war in Cambodia, if you do not do what you are told, ‘your family get killed and you get killed too’. She agreed she had not mentioned this before because ‘I tried to bury it’. Ms Puth said she was very upset and scared because she had done nothing wrong. She denied her anger was directed towards Ms Leonardi. It was about the situation. She had told Mr Croudace about it. She claimed Ms Leonardi raised her voice, but she did not bang the table with her fist.

[106] In respect to the Union Organisers’ visit, Ms Puth said Mr Evans gave her a copy of the email document and said ‘Share that and pass it on to the member(s)’ even though she was not the delegate. She accepted she looked at the document and Mr Evans told her what it was about. She agreed it was a series of emails between Ms Leonardi and Mr Evans about another employee, which had nothing to do with her. However, it did relate to her because she had also been asked to a meeting, without knowing what it was about. She agreed that the emails were critical of Ms Leonardi and did not concern her personally, but another employee and her circumstances. It was not private because the same thing had happened to her and she was still upset. She had trusted the Union Organiser. She denied that by her distributing the emails, other people would think poorly of Ms Leonardi and that would assist to undermine her. She distributed it because Mr Evans asked her to, as there was no delegate. She denied she was ashamed or defensive in the meeting on 18 June 2020, because she knew it was intended to undermine Ms Leonardi.

[107] Ms Puth denied she was not telling the truth when she said in the 18 June 2020 meeting that she made only one copy, when in fact, she made multiple copies. She claimed her manager allowed her to use the photocopier from time to time for personal use, so she was authorised to do so. There was no manager around to ask permission of. She insisted no manager had ever rejected her request.

[108] In further questioning, Ms Puth said she knew who the Union members were and who were not, and only gave Union members the document. She had not asked Ms Moroney for permission to hand it out, because she was not there and, in any event, Ms Puth knew the issue involved her. Further, it was ‘linked’ to her own experience on 27 May 2020. She did agree it would have been a courtesy to ask Ms Moroney about the email distribution. She denied again that distributing the document was not part of her plan to undermine Ms Leonardi. Ms Puth agreed the email did not have the Company logo, but she had nothing to do with altering it and Mr Evans did not tell her he had altered it. Mr Evans did say he had done so at the meeting on 18 June 2020.

[109] As to the training on the COVID-19 Policy, Ms Puth said that her signature on the Policy was not for training. The document was handed out and she saw it, but could not recall receiving a copy. She understood the Policy involved temperature checks and a sign in process. However, she was not aware that the Organisers had not signed in correctly. Ms Puth conceded that she was not permitted to allow anyone in at any time when she let the two Union Organisers in. The only way that could happen would be through the blue door between the factory area and reception. She could not remember seeing the sign on the door; see: [74] above, and was not aware of how long it had been there. She did not know how to use a thumb print to open the door.

[110] Ms Puth conceded that from March 2020, every employee was required to undergo a temperature check before going to work and she had no problem with doing so. She accepted the Policy must sensibly apply to visitors. However, she did not know the Union Officials had not undertaken their obligations at the time. Ms Puth said she did not ask either of the Officials if they had undertaken a temperature check. Ms Puth denied she did not let go of the door because she knew the door could not be opened if it was shut. She did it to grant access and in any event, they were not visitors as they were Union Organisers who had given 24 hours’ notice of their right of entry. She knew they had exercised that right, but had not seen the notice and did not ask them about it.

[111] Ms Puth claimed she had told the meeting on 18 June 2020 she was sorry for any unintentional mistake, although this is not recorded in her statement. She denied just making this up and not telling the truth about this and other matters, put to her in the meeting on 18 June 2020.

[112] In respect to the ‘show cause’ letter of 16 June 2020, Ms Puth agreed the allegations were serious, but she had not been warned or taken aside to explain what she had done was wrong. However, she understood the allegations were that she had breached Company policies and the Code of Conduct. She agreed the meeting on 18 June 2020 was for her to respond. She had sought advice from the Union and her support person was Mr Evans. She had understood what was required of her at the meeting and what was alleged against her.

[113] Ms Puth accepted that she had not responded to Mr Solis’ statement and agreed with his comments about employees taking excessive breaks; see: [13] above. Ms Puth claimed there was some understanding about her taking extra time for breaks, but could not explain further, other than for two days when she had permission from the late Mr Kayani. She denied she came up with this explanation because Mr Kayani could not confirm or deny it. She did not know that any permission was required to be recorded. Ms Puth was asked why she made no comment on Mr Edwards’ notice to all staff on 3 January 2020 about promptly commencing and returning from breaks; see: [13] above. She did not comment because she was not there at the time and had not seen it in the workplace, because there were so many notices on the Notice Board. She claimed she was always told to use common sense.

[114] Ms Puth was referred to the specific dates in April/May 2020. When she was asked if she knew she had taken extended breaks on those days without permission, was the reason was she did not want to look at the CCTV footage, she queried if there was footage of the meal room.

[115] In answer to questions about the meeting notes of 18 June 2020, Ms Puth insisted she had never said ‘No comment’; rather, she did not answer at all, as she could see it was her in the footage when Mr Edwards replayed it. Ms Puth denied she changed her evidence about making one copy of the altered email after seeing the CCTV footage which shows her making multiple copies. She denied not responding to Mr Edwards as to why she made copies of the document and distributed them. She again denied having any problems with Ms Leonardi. She denied wanting to hurt her professionally. She denied wanting to distribute the emails critical of her, so as to undermine her position and cause her grief and concern. While she did not understand why Ms Leonardi could be undermined by ‘just a factory worker’, Ms Puth was prepared to apologise to her. Mr Brown pointed out she was a Senior Quality Inspector and she agreed she was expected to set a good example. However, she was not perfect and could make mistakes. It was not intentional. She was going through a very difficult period in her personal life.

[116] In re-examination, Ms Puth described her other duties in her role. Ms Puth was referred to her signing of the COVID-19 Policy. It was Mr Kayani who showed it to her in her office. He asked her to read it, but they did not have time to discuss it, because it had to be passed onto others.

[117] In respect to holding the door open for the Union Officials, Ms Puth said she was rushing and running late and just held the door and said ‘Quick, get in’. Much of Mr Aghazarian’s re-examination was little more than an opportunity to recite her earlier evidence or elaborate on details which should have been put in her statement. Other questions were plainly leading, or did not arise from cross examination.

[118] In cross examination, Ms Moroney agreed that the reception door can only be opened from the inside but requires a code sensor to enter from the other side. She has no authority to open the door from the reception side. She could not recall the sign on the inside side of the door. However, if the sign had been there when the enterprise bargaining was happening, she wondered why she was never picked up for letting Union Officials in. She knew nothing about a drop-down menu of names that a person can nominate to see.

[119] In re-examination, Ms Moroney said that previously, a receptionist was at the reception desk who would call the person a visitor would want to see. This is how it operated for all the time she was a delegate.

[120] In cross examination, Mr Evans was shown long and short distance photographs of the reception desk with a cradle containing a thermometer secured by a pink cord. Mr Evans said that when they arrived, it was not clear whether a temperature check had to be done before entering the site. The CCTV footage shows that for a long time Mr Evans was standing in front of the computer, and Ms Puth was at the door. He can be seen moving his hand and he may have been talking to Ms Emmanuel, but he could not recall what was said. Mr Evans claimed he could not see the thermometer.

[121] As to the email change, Mr Evans was asked if he had a problem with the disclaimer which did not permit the email being on sent, copied or do anything with, without the author’s consent. He could not recall reading this at the time. When asked if he genuinely wanted to distribute Ms Leonardi’s email, he could have just scanned it and it would be there in PDF, Mr Evans said ‘possibly’. He denied deleting the disclaimer because he knew he was not permitted to on send or distribute it. He agreed he could have asked Ms Leonardi for permission to distribute it, but he did not. He did not believe he changed Ms Leonardi’s footing and signature. Mr Evans reiterated that he disclosed to Mr Edwards in the meeting of 18 June 2020 that he had altered the email. In re-examination, Mr Evans was asked how the disclaimer was removed. He said:

‘So I copied and pasted the emails into a Word document and obviously as part of the copy and paste, as in my submission, it would have said, 'Embedded file image moved to' - a string of numbers. It wouldn't have had any name on that email, so I removed, 'Embedded file image.' I deleted those words and I added in, 'Kind regards, Lilianne Leonardi,' onto that.’

[122] Mr Evans said he did not ask Ms Leonardi for permission to copy the email chain because it would not be particularly worthwhile. He believed members had a right to know what was going on.

[123] As to temperature checks, Mr Evans said that not all sites require temperature checks and Precision was one of only a few, in his experience, which required it.

CONSIDERATION

[124] Both parties provided outlines of submission and requested an opportunity to respond to the evidence in final written submissions. I have taken these submissions into account in determining this matter. The submissions largely reflect the evidence set out above.

Statutory provisions and relevant authorities

[125] Before turning to the merits of the case, the Commission must deal with a number of preliminary matters under s 396 of the Act. That section reads:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[126] Ms Puth’s unfair dismissal application was lodged by her Union on 30 June 2020. As she was dismissed on 23 June 2020, her application was lodged within the 21-day statutory time period set out in s 394(2) of the Act. Ms Puth is a person protected from unfair dismissal in that:

  she had completed the minimum employment period set out in ss 382 and 383 of the Act, namely over 17 years; and

  her remuneration was below the high income threshold in s.382(b)(ii) of the Act and she was otherwise employed under the Precision Valve Australia Pty Ltd Enterprise Agreement 2019.

[127] Section 385 of the Act sets out four jurisdictional prerequisites which must be satisfied in order for the Commission to find that a person has been unfairly dismissed. By use of the conjunction ‘and’ linking subsections (a), (b), (c) and (d), it is clear that each of the four requirements must be satisfied for a person to be unfairly dismissed. The section is set out as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[128] For present purposes, I am satisfied that Ms Puth was dismissed (sub-s (a)), that the Code does not apply (sub-s (c)) and her dismissal was not a case of genuine redundancy (sub-s (d)). The question of whether Ms Puth’s dismissal was ‘harsh, unjust or unreasonable’ is the remaining matter to be considered under s 387 of the Act, and if so found what, if any remedy should be ordered under s 392 of the Act.

Serious misconduct and the Act’s Regulations

[129] There is no doubt that this is a case involving allegations of misconduct. So much is obvious from the dismissal letter, although the adjective ‘serious’ was not stated in the ‘show cause’ letter of 16 June 2020. In this respect, it is useful to refer to the Act’s meaning of serious misconduct where, at s 12, it says

12 The Dictionary

In this Act:

Serious misconduct has the meaning prescribed by the regulations.

[130] The regulations referred to are Regs 1.0.7(1), (2) & (3) of the Fair Work Regulations 2009, (the ‘Regulations’). They are expressed as follows:

1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) for subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment. (my emphasis)

The above list is not exhaustive and may include those specific matters alleged against Ms Puth, if proven.

[131] Lucev J summarised the meaning of serious misconduct in Wintle v RUC Cementation Mining Contractors Pty Ltd (No.3) [2013] FCCA 694, at paragraphs [97]-[103], where His Honour said:

‘97. To define “serious misconduct” by reference to its “ordinary meaning” as is done in reg.1.07(1) of Div.2 of Part 1-2 of Ch.1 of the FW Regulations is not of particular assistance in determining whether or not the conduct for which the employee has been terminated is serious misconduct disentitling an employee to the minimum period of notice prescribed under the NES. That is because, both historically and in more modern times, courts have been wary of defining the extent of “misconduct” which justifies dismissal, and where they have attempted the task have made it clear that the misconduct must be sufficiently “serious” as to warrant non-continuation of the contract between employer and employee. Thus, the “ordinary meaning” definition of “serious misconduct” adds little, if anything, to the content of the meaning of “serious misconduct”.

98. In Clouston & Co Limited v Corry it was observed that there “is no fixed rule of law defining the degree of misconduct which would justify dismissal”.

99. In Laws v London Chronicle (Indicator Newspapers) Ltd it was observed that:

… if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service.

… one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions.

100. In North v Television Corporation Ltd the Australian Industrial Court was called upon to consider the word “misconduct” as used in an industrial award covering journalists. In the joint judgment in North it was observed that:

It is of assistance to consider the expression “misconduct” by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression “misconduct” as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment.

This situation would arise if there were conduct inconsistent with the fulfillment of the express or implied conditions of service. It is conduct of that kind which will justify dismissal at common law.

101. It was also observed in North by a single judge that although the conduct of the journalist concerned was “reprehensible” it fell short of misconduct justifying summary dismissal because it was an isolated incident which occurred “under [the] considerable strain” of preparing for a nightly news bulletin.

102. In Gera v Commonwealth Bank of Australia Ltd the employee’s Australian Workplace Agreement provided for termination without pay in lieu of notice for misconduct if the misconduct was serious. In that case it was observed that:

The use of the adjective “serious” imposes an additional requirement before the Bank can terminate employment without notice. Something more than mere misconduct is required.

103. In Gera the Court went on to find that there was no doubt that the sexual or indecent assault of a fellow employee was serious misconduct warranting summary termination without payment in lieu of notice, as it constituted a fundamental breach of an employee’s duty, particularly where the employee was a senior employee and mentor to the employee who had been assaulted.’ (footnotes omitted)

Meaning of ‘harsh, unjust and unreasonable’

[132] The matters required to be taken into account by the Commission under s 387 of the Act are:

(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.

Whether there was a valid reason for the applicant’s dismissal (s 387 (a))

[133] The meaning of valid reason in s 387(a) is drawn from the judgement of North J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’). This meaning has been considered and applied by members of the Commission and its predecessors for many years. For example, in Rode v Burwood Mitsubishi Print R4471, a Full Bench of the then Australian Industrial Relations Commission (‘AIRC’) discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and by citing Selvachandran, the Full Bench said at [17]-[19]:

‘[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“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 wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. 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, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.’

See also: Nettleford v Kym Smoker Pty Ltd (1996) 69 IR 370.

[134] In B, C and D v Australian Postal Corporation t/a Australia Post [2013] FWCFB 6191, a majority of the Full Bench (Lawler VP and Cribb C) dealt with breaches by a number of employees of Australia Post’s IT policies, in respect to the sending, receiving and sharing of pornographic material. The plurality said at [34]-[36]:

‘[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).

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

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

[135] Further, the Full Bench of the Australian Industrial Relations Commission said in Container Terminals Australia Limited v Toby [2000] Print S8434 at [15]:

‘[15] In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable: see generally Department of Justice Hepburn (1999) 93 FCR 508, at 512-513 and cases cited therein. The focus of the consideration is upon the employer and the basis for his decision to terminate rather than upon its consequences for the employee. "What has to be examined is the validity of the reason, and its connection with the employee's capacity or conduct or its basis in operational requirements of the employer": see Qantas Airways Ltd v Cornwall (1998) 83 IR 102, at 106. In making such an examination "it is not the court's function 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 but rather it is for the court to assess whether the employer had a valid reason connected with the employee's capacity or conduct..."; see: Walton v Mermaid (1996) 142 ALR 681, at 685.’

[136] The above authorities (and many more), make clear that a ‘valid’ reason must be ‘sound, defensible or well founded’ and not ‘capricious, fanciful, spiteful or prejudiced.’

The allegations – was there a valid reason for dismissal?

[137] The allegations against Ms Puth arise from the ‘show cause’ letter which ultimately led to her dismissal for misconduct. The respondent described the applicant’s conduct as a significant and serious breach of a number of its policies; see: [2] above.

[138] It may be accepted that Precision’s conclusions as to the nature of Ms Puth’s conduct was in breach of the highlighted provisions in the Regulation above. In cases of dismissal for serious misconduct, the onus rests on the employer to prove, to the Commission’s satisfaction, that the misconduct had in fact occurred. This is why I have adopted the practice of reversing the directions so as the employer provides its evidence first. While this evidentiary onus must be discharged on the civil onus of proof (on the balance of probabilities), the more serious the allegation, the higher the burden on the employer to prove the allegation. In Briginshaw, at page 362, Dixon J said:

‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’

[139] Further, in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, the High Court said:

‘The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.’ (footnotes omitted)

[140] That the Commission for itself, must be satisfied that the misconduct occurred is well-established by the authorities of this Commission and its predecessors. In King v Freshmore (Vic) Pty Ltd (2000) Print S4213, a Full Bench of the Australian Industrial Relations Commission (the ‘AIRC’, as the Commission was then styled) said at [24], [26], [28] and [29]:

‘[24] 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.

...

[26] As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved.

...

[28] It is apparent from the above extract that his Honour answered the question of whether the alleged misconduct took place on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. This is not the correct approach. The Commission’s obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved.

[29] In our view the Senior Deputy President failed to determine for himself whether Mr King was guilty of misconduct in the way alleged by Freshmore and he should have done so as part of determining whether the termination had been harsh, unjust or unreasonable. When the reason for a termination is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The absence of such a finding leads us to conclude that the member below failed to properly determine whether there was a valid reason for the termination of Mr King’s employment.’ (my emphasis)

[141] Even accepting that a finding of serious misconduct was open to Precision, such a finding must not be confused with the statutory language. The statutory instruct still requires the Commission to find that there was a valid reason for dismissal (s 387(a)). In Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200, a Full Bench of Fair Work Australia (the ‘FWA’, as the Commission was then styled) relevantly held at [16]:

‘[16] In the circumstances of this matter the University purported to terminate Dr Asher’s employment for serious misconduct within the meaning of that term in the University’s enterprise agreement. If it successfully established that Dr Asher had engaged in serious misconduct it would necessarily follow that there was a valid reason for the dismissal. However, the converse is not true. As established by Annetta, the question that needed to be considered was whether there was a “valid reason” in the Selvachandran sense – whether the reason was sound, defensible or well founded. Whether it also amounted to serious misconduct may well be a factor relating to the overall characterisation of the termination but it was not an essential requirement in the determination of whether a valid reason exists.’

[142] Given the above authorities, it is necessary for the Commission to make its own findings as to whether the allegations against Ms Puth have been made out, and ultimately if they have been, whether her conduct constituted a valid reason for dismissal. For ease of reference, I will deal with the allegations in shorthand as follows:

(1) The alleged bullying of Ms Leonardi;

(2) Admission of the Union Officials;

(3) Copying and distribution of the email chain; and

(4) Taking of excessive breaks.

At this juncture, I wish to make the following general observation.

[143] In my view, Ms Puth’s evidentiary case, while strenuously and passionately put, was undermined by her regrettable habit of recreating, embellishing or exaggerating conversations and offering implausible and inconsistent explanations for each of the allegations, particularly when the CCTV footage disclosed otherwise, in order to fit the narrative of her case; namely, that she had done nothing wrong, the allegations against her were false, and she wanted to clear her name. In short, much of her crucial evidence was made up. Further, Ms Puth’s case was infected by her lack of contrition or apology and her unwillingness to acknowledge any wrongdoing. I will say more about this later.

1. The alleged bullying of Ms Leonardi

[144] This allegation arises from Ms Puth’s conversation with Ms Leonardi and Mr Capasso on 27 May 2020, concerning the collection for Mr Kayani’s family and her claims that Ms Leonardi had berated and criticised her, which she repeated to others.

[145] The was only one witness to the conversation on 27 May 2020 – Mr Capasso. His evidence was that Ms Leonardi did not raise her voice, her face was not red, and she had not demanded Ms Puth hand over the money she had collected. I found Mr Capasso to be a credible witness and accept his evidence. Ms Leonardi denied Ms Puth’s claims and said the meeting was to ensure the Company could match the contributions dollar for dollar. I find it implausible that Ms Leonardi, a person of 18 years’ HR experience, in a sensitive and emotional situation at the time, would react in the manner described by Ms Puth. Moreover, Ms Puth could not recall Ms Leonardi thanking her for her efforts, or that there was anything said about the Company’s dollar for dollar contribution. In my view, Ms Puth was very selective about what she chose to recall and overlooked parts of the conversation which did not fit her later narration of the conversation to others.

[146] Ms Puth’s later evidence in this case was curious and implausible. She denied she was angry with Ms Leonardi personally, but angry with the conversation. This is inconsistent with her firstly, not making any complaint about the way she claims she was treated by Ms Leonardi, and secondly, does not sit comfortably with her comment about being offered counselling over Mr Kayani’s death – ‘I don’t want anything to do with that woman’. If this was not personal, I struggle to see what it was.

[147] In my view, Ms Puth’s anger towards Ms Leonardi and her desire to further undermine her and seek retribution came fortuitously in the visit of the Union Organisers on 29 May 2020. Ms Puth was aware that Ms Moroney had raised concerns with the Union about being allegedly directed to an informal management meeting without knowing the reason. Ms Puth was contacted by the Union Officials to advise they would be visiting the site. Ms Puth claimed their visit was to comfort and support the employees in relation to the loss of their colleague. It is unclear why Ms Puth was contacted by the Union when she was not the delegate, although Ms Moroney had recently stepped down as delegate. Ms Puth was asked to meet the Officials and escort them to the meal room.

[148] Mr Evans, of course, had brought to the site a prepared copy of an email chain between him and Ms Leonardi and asked Ms Puth to copy and distribute it. It is telling that in Mr Evans’ statement, he does not mention at all that the purpose of the visit was to comfort and support grieving employees. In my view, this was not the primary purpose of the visit. It was for the Union to inform employees of the Union’s view that they could not be directed to informal meetings without notice, or knowing what the meeting was about. Whether this was a legitimate Union activity or not, is beside the point.

[149] The email chain was intended to cast Ms Leonardi in a bad light. Rather than telling the Union that she was not the delegate and the issue in the email chain concerned another employee and not her, Ms Puth saw an opportunity to ‘put the knife’ into Ms Leonardi (colloquially of course) and embraced the chance to copy and distribute material which was critical of her. In oral evidence, Ms Puth even admitted that the contents of the email were relevant to her because she had also been subject to being called to a meeting, only two days earlier, without notice or knowing what it was about. She clearly linked the email criticism of Ms Leonardi with her own views of her.

[150] Rather than being the innocent victim against the power and might of HR (as she described), Ms Puth’s involvement in further undermining Ms Leonardi was exposed when she first told the disciplinary meeting on 16 June 2020 that she only made one copy of the document and kept a copy for herself. However, when the CCTV footage showed her making multiple copies, she changed her story and said she maybe made 10 copies and put them in the meal room. She further claimed she did not read the document when Mr Evans asked her to distribute it. I do not accept Ms Puth’s attempts to deliberately downplay her role in copying and distributing a document intended to criticise and undermine Ms Leonardi and her position. However, I hasten to add that, as the Company found, I accept Ms Puth had no role in altering the email chain.

[151] In my opinion, that while Ms Leonardi had the right to raise her concerns through a complaint under the respondent’s Bullying and Harassment Policy, I am not entirely convinced that Ms Puth’s conduct can be strictly characterised within the definition of repeated unreasonable behaviour which is a risk to health and safety, in the form of bullying, as defined under s 789FD of the Act. That said, I understand Ms Leonardi’s concern with Ms Puth’s misrepresentations of the meeting on 27 May 2020. In any event, I am satisfied Ms Puth’s conduct in making false and hurtful allegations about Ms Leonardi and exploiting the opportunity to further undermine her and her role, was unacceptable and in breach of the respondent’s Code of Conduct. It constituted misconduct.

2. Admission of the Union Officials to site

[152] I am satisfied that this allegation has been proven. Ms Puth, without authority or being the nominated person, admitted the two Union Officials on site by opening the access door and allowing them entry to the site, when she was aware the respondent’s COVID-19 Policy required a strict protocol to be followed. Ms Puth’s explanations were not believable.

  Firstly, she claimed she was not trained on the COVID-19 Policy, despite her signature on the template training list on 11 March 2020.

  Secondly, she sought the opinion of former delegate Mr Banic, but not his permission.

  Thirdly, that it was common occurrence for Union Officials to attend the site and there was a degree of flexibility with these arrangements. She relied on Ms Moroney and Mr Warren’s evidence that this was a common occurrence. Plainly, this reliance ignores the fact that there was nothing common or usual about the entry requirements during the COVID-19 pandemic. Moreover, Mr Warren had not been employed for 10 years and Ms Moroney’s experience related to 2019 during enterprise agreement negotiations; irrelevant to the post-COVID-19 Policy.

  Fourthly, Ms Puth was unaware the Union Officials had not followed the Procedure. It was incumbent on her, knowing the Policy, to have at least asked the question.

  Fifthly, Ms Puth said she did not see the notice on the inside above the door; see: [74] above. I reject this explanation. One would have to be, at best, careless not to have noticed the clear direction not to open the door without authority. It was a well-known and accepted practice.

  Sixthly, I reject the Union’s submission that the COVID-19 Policy was confusing and therefore Ms Puth was ignorant of it. There was nothing confusing about what was expected about the admission of visitors during the COVID-19 period. Incredibly, Ms Puth later claimed the Organisers were not ‘visitors’, because they were Union Officials. This explanation is nonsense.

  Seventhly, during oral evidence, Ms Puth said she was sorry for any unintentional mistake. Nowhere in her statement or during the 18 June 2020 meeting, did she express any apology. In my view, this was a belated attempt to retrieve her situation.

3. Copying and distribution of the email chain

[153] Ms Puth’s evidence on whether she had approval to use the Company photocopier for personal purposes were confusing and inconsistent. On the one hand, she acknowledged that she had sought approval from her Supervisors in the past and because it was never denied, she assumed it was some kind of general ongoing approval. She also said that her manager was not present to obtain this approval, but did not seek any other manager’s approval. In my view, Ms Puth knew she had to obtain approval for using the photocopier for personal purposes. Given the nature of the document to be copied and her intention of distributing it, being criticism of HR, permission may not have been granted. Be that as it may, her conduct was unacceptable.

4. Taking of excessive breaks

[154] There can be little doubt that Ms Puth (and probably others, on the less supervised afternoon shift), have become somewhat lax about returning promptly from tea or lunch breaks. It is telling that Ms Puth did not seek to view the CCTV footage because it would demonstrate that, on a number of occasions, she had taken excessive breaks. Ms Puth conceded she had not sought approval to do so. Again, her explanations were that there was confusion about the direction and, in any event, there was flexibility about when breaks were taken. Further, that she had never been warned in 17 years for taking excessive breaks, and the respondent’s snapshot over only 14 days, did not demonstrate a patten of such behaviour. In any event, over this period she was experiencing significant stress over the deaths of three persons close to her.

[155] Ms Puth’s explanations became more inexplicable and unlikely in her evidence. Ms Puth claimed she took excessive breaks during this stressful period because she was upset and rang her husband during breaks and the phone calls went over time. Putting aside this was the first time she raised this explanation, there was no medical evidence that Ms Puth was so emotionally fragile, stressed and upset that she was unable to attend for work, which had been offered by Management, but not taken up. There was also no medical evidence produced for her absence from work after 1-10 June 2020.

[156] Secondly, when Ms Puth was asked about Mr Edwards’ specific notice to employees on 3 January 2020, about taking excessive breaks, Ms Puth said she was on leave at the time and never saw the notice on the Notice Board.

[157] In my view, these explanations were further examples of post constructed explanations when faced with clear and cogent contrary evidence. Ms Puth knew she had to obtain permission for extended breaks and in the relevant period, she did not do so. It did not need a warning for employees to know that they were obliged to comply with their hours of work, unless permission was granted otherwise. Ms Puth’s ignoring of these requirements was unacceptable and her explanations unbelievable. It constituted misconduct.

[158] In summary, I wish to make clear that if Ms Puth had been dismissed for only one of any of the above reasons, I doubt it would reach the threshold of being a valid reason justifying dismissal; let alone dismissal for serious misconduct. However, when taken together, and viewed in aggregate, and in the context of her less than honest and uncooperative responses to reasonable and legitimate questions in the meeting of 18 June 2020 and her lack of contrition and failure to acknowledge any of her unacceptable behaviours, I am satisfied Precision had valid reason/s for Ms Puth’s dismissal, in the Selvachandran sense.

Procedural fairness

[159] Subsections 387 (b)-(g) are procedural fairness matters to be considered by the Commission in any unfair dismissal case, including when a finding of valid reason is made.

[160] To highlight the importance of procedural fairness issues, in unfair dismissal cases, I cite four authorities on the subject. In Crozier v Palazzo Corporation Pty Limited t/as Noble Storage and Transport (2000) 98 IR 137 (‘Crozier v Palazzo’), a Full Bench of the AIRC said at [73]:

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

[161] In Wadey v YMCA Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations concerning an employee’s conduct. His Honour said:

‘In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.’

[162] Nevertheless, procedural fairness steps should be applied in a common sense and practical way. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1 (‘Gibson’), Wilcox CJ said at [7]:

‘Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.’

[163] It goes without saying that any issue(s) of procedural unfairness may not be of such significance as to outweigh the substantive reasons for an employee’s dismissal, particularly in cases of misconduct where the proven misconduct is of such gravity as to outweigh any other considerations such as age, length of service, employment record or contrition.

[164] In a recent decision of the Full Bench, the following principles were enunciated as to sub-ss 387(b) and (c) of the Act. In Bartlett v Ingleburn Bus Services Pty Ltd t/as Interline Bus Services [2020] FWCFB 6429, the Full Bench said at [19]:

‘[19] The relevant principles as to the meaning and application of s 387(b) and (c) are well-established. They may be summarised as follows:

(1) Each of the matters specified in s 387, including those in paragraphs (b) and (c), must be taken into account as matters of significance, to the extent that they are relevant to the particular case at hand, and given due weight.

(2) Proper consideration of s 387(b) requires a finding to be made as to whether the applicant has been notified of “that reason” – that is, the reason for dismissal relating to the capacity or conduct of the applicant found to be valid under s 387(a) – prior to the decision to dismiss being made

(3) Proper consideration of s 387(c) requires a finding to be made as to whether the applicant has been given a real opportunity to respond to the reason for dismissal. As a matter of logic, unless the applicant has been notified of the reason, it is difficult to envisage that it could be found that the applicant has been afforded an opportunity to respond to that reason.

(4) Once findings are made in relation to s 387(b) and (c), they may then be weighed together with the other matters required to be taken into account in order to form a conclusion as to whether the applicant’s dismissal was harsh, unjust or unreasonable. Where it is found that the applicant was not notified of the reasons for dismissal and/or was not given an opportunity to respond, a relevant consideration as to the weight to be assigned to this is whether this meant that the applicant was deprived of the possibility of a different outcome in terms of avoiding his or her dismissal’

Whether the person was notified of that reason (s 387(b))

[165] Ms Puth was summarily dismissed on 23 June 2020 by letter. Nevertheless, she was paid five weeks’ pay in lieu of notice. This is a neutral factor in this case.

Whether the person was given an opportunity to respond to any reasons related to the conduct of the person (s 387(c))

[166] Ms Puth was provided with an opportunity to respond to a ‘show cause’ letter, dated 16 June 2020, and did so in the meeting on 18 June 2020. This factor tells against a finding of unfairness.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal (s 387(d))

[167] At all times, Ms Puth was represented by her Union, including in the meeting on 18 June 2020. This is a neutral factor in this case.

Whether the person had been warned about unsatisfactory performance before the dismissal – s 387(e)

[168] Most of Ms Puth’s conduct and the allegations arising therefrom, were unique to the circumstances of the events from 27-29 May 2020. She was, however, warned about taking excessive breaks.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal – s 387(f), and 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 – s 387(g)

[169] Precision is a relatively large, well-resourced and experienced employer with dedicated Human Resources and employment relations personnel, and with a suite of relevant policies, procedures and training arrangements. This is a neutral factor in this case.

Any other matters the Commission considers relevant – s 387(h)

[170] I have taken into account two other significant matters telling against Ms Puth. Firstly, I accept that she was less than frank, and at times uncooperative in the meeting on 18 June 2020. It is curiously inconsistent that Ms Puth denied being less than open and honest in that she gave multiple explanations for each allegation, while at the same time she claimed Mr Edwards was not interested in hearing from her and only wanted yes/no answers. The minutes of the 18 June 2020 meeting make clear she did have her say, with Mr Evans’ assistance in the meeting.

[171] An employee does not have the right to silence (this is not a criminal investigation) or to be uncooperative in meetings to discuss allegations against them. It is incumbent on an employee to be completely honest and cooperative during meetings and an investigation into their behaviour. A failure to do so invites a finding that there can be no trust and confidence in the employment relationship; see: Streeter v Telstra Corporation [2008] 270 IR 1 and Dissanayake v Busways Blacktown Pty Ltd [2011] FWA 3549. Ms Puth denied saying ‘no comment’ in answer to Mr Edwards’ question. Whether she said ‘no comment’ or just remained silent, amounts to the same thing, and exacerbates the concerns the employer had as to continuing the employment relationship.

[172] Secondly, in Hilder v Sydney Trains [2019] FWC 8412, I referred to a decision which is relevant to a question of the reinstatement of an employee where a valid reason is found for the employee’s dismissal. At [126] I said:

‘I refer to a recent Full Bench decision of the Commission in Hatnell v Esso Hatwell v Esso Australia Pty Ltd t/a Esso [2019] FWCFB 2895 which granted permission to appeal on two public interest grounds; one being:

‘(1) the appeal raises a significant issue of general application concerning the relevance to the evaluation of the appropriateness of reinstatement of a failure on the part of an unfair dismissal remedy applicant to apologise or acknowledge wrongdoing, in circumstances where there has been found to be a valid reason for dismissal based on the applicant’s misconduct’.

Later in the decision, the Full Bench said at [28]-[29]:

‘[28] Mr Hatwell’s first ground of appeal concerns the Deputy President’s conclusion that Mr Hatwell’s failure to apologise or acknowledge wrongdoing in respect of the misconduct which the Full Bench found constituted a valid reason for his dismissal was a matter which weighed determinatively against a finding that reinstatement was appropriate. It cannot in our view be reasonably contended that this was not a material consideration. In circumstances where Mr Hatwell had been found to engage in misconduct constituting a valid reason for his dismissal, but that there were mitigating factors which rendered the dismissal harsh, a critical issue was necessarily whether there were grounds for confidence that Mr Hatwell would, if reinstated, not engage in the same or similar conduct again having regard to the continuing presence of Mr Flens and other employees of the maintenance contractor at the Longford site. The role of an apology or an acknowledgment of wrongdoing in that context was explained in the Full Bench majority decision in Mt Arthur Coal Pty Ltd v Jodie Goodall as follows:

“[78] The primary issue which arose for consideration before the Commissioner in respect of remedy was whether there were proper grounds for confidence that Mr Goodall would, if reinstated, never again engage in conduct of the type which occurred on the night shift of 10-11 November 2015. That confidence was what was necessary to make the employment relationship workable. As we have already stated, the Commissioner with the advantage of having seen and heard Mr Goodall give his evidence was persuaded that he had a sufficient understanding that his conduct was inappropriate, unacceptable and not to be repeated. Nothing which has been put to us by Mt Arthur Coal has articulated a proper basis for the Commissioner’s findings in this respect to be disturbed on appeal. That being the case, there was a reasonable and rational basis for the Commissioner to conclude that Mr Goodall would be able to regain the trust of his colleagues and thereby re-establish a viable working relationship.”

[29] The circumstances of the proceedings here meant that once the question of remedy was remitted by the Full Bench to the Deputy President for determination, Mr Hatwell had the opportunity to give evidence, or make a statement via his counsel, to demonstrate that he understood that the conduct which was found to constitute a valid reason for his dismissal was “inappropriate, unacceptable and not to be repeated” such as to form a basis for confidence that a viable working relationship could be re-established. This might have taken the form of an apology to Mr Flens, an acknowledgment that the conduct he was found to have engaged in was wrong, or a commitment to never engage in such conduct in the future and to treat fellow workers with respect. However Mr Hatwell declined to take advantage of this opportunity, and as a result we consider that it was reasonably open to the Deputy President to conclude, as he did, that this meant there was a risk of a recurrence of the behaviour if reinstatement was granted, and to treat this as a matter of determinative weight.’

[173] In my view, Ms Puth’s dogged determination that she had done nothing wrong and wished to clear her name does not sit well with the evidence and my findings. The only time she said she was prepared to apologise was in her evidence in the proceedings. By then, it was just too late, and in any event, I do not consider it was genuine.

[174] On the other hand, I have given earnest deliberation to Ms Puth’s long period of service of 17 years, with no other performance or conduct issues of significance, or at all. However, long service can work both ways in that it might be expected an employee with such service, knowledge and training of the Company’s policies and procedures, would have acted very differently in respect to the incidents which gave rise to the allegations against her.

[175] I have no direct evidence of Ms Puth’s personal, family or financial circumstances and accept she has been seeking alternative employment, which is to her credit. However, I do not accept Ms Puth’s experience and skills in QC are in oversupply in the manufacturing sector. Further, given Ms Puth’s service, she would have received her full entitlements of outstanding long service leave and also received five weeks’ notice, where this might not ordinarily be required to be paid.

[176] Lastly, I note the petition of 53 employees seeking Ms Puth’s return to work. I would expect that after many years of service, Ms Puth would have a large cohort of friends and supporters. While I accept Ms Puth was popular and well-liked, this is not the point.

[177] In weighing all the matters I am required to take into account under s 387 of the Act, I do not consider any ‘harshness’ factors outweigh the seriousness of Ms Puth’s conduct which would warrant the Commission’s intervention to interfere with the respondent’s decision to dismiss her.

CONCLUSION

[178] For the aforementioned reasons, I am satisfied that Ms Puth’s dismissal on 23 June 2020, was not ‘harsh, unjust or unreasonable’ or unfair. Finally, s 381(2) of the Act is a significant overarching object of Part 3-2 – Unfair Dismissal of the Act. It is expressed as follows:

381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

[179] In my judgment, the outcome in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both the employee and the employer.

[180] Accordingly, application U2020/8991 is dismissed and these proceedings are concluded. I so order.

DEPUTY PRESIDENT

Appearances:

Mr A Aghazarian and Ms M Bolton appeared for the applicant.

Mr P Brown, Partner, Baker McKenzie, appeared for the respondent.

Hearing details:

2020.

Sydney:

7 October
8 October.

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