[2021] FWC 2570
FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 – Application for unfair dismissal remedy

Mr Matthew Thompson
v
360 Finance Pty Ltd
(U2020/9477)

DEPUTY PRESIDENT LAKE

BRISBANE, 6 MAY 2021

Application for unfair dismissal remedy – dismissal for serious misconduct – whether valid reason for dismissal – application dismissed.

[1] On 10 July 2020, Mr Matthew Thompson (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with 360 Finance Pty Ltd (the Respondent).

Background

[2] The Applicant was employed as a finance broker by the Respondent from about February 2013. At this point in time, the Respondent was a small business owned and operated by two brothers, Matthew and Richard Burgess (the Burgess brothers). Between 2013 and 2016, AHG acquired 100% of the Respondent and, in 2016, the Burgess’ left the business and Mr Travis Waycott was engaged as General Manager. In October 2019, AP Eagers acquired AHG and therefore, ownership of the Respondent. From January 2019, Michael Dowling has been the General Manager of the Respondent.

[3] The Applicant was summarily dismissed on 19 June 2020 on the basis that he had engaged in serious misconduct by posting two memes to his personal Facebook page on 17 June 2020, of which one contained a sexual connotation referencing a female employee.

[4] The Applicant seeks reinstatement, including an order for continuity of service and payment of wages from the date of his dismissal to the date that he resumes work in the event he is reinstated.

[5] There is little factual contest present in this dispute. What is salient is establishing whether the pattern of conduct exhibited by the Applicant was in keeping with the workplace culture of the Respondent. As will be seen, the evidence led makes it abundantly clear that the standard of conduct deemed appropriate at the Respondent fell far below what might objectively be seen as “normal” at a workplace.

[6] The Applicant sought to be represented by Ms Ellie Bassingthwaighte of Hall Payne Lawyers in these proceedings. Granting permission to be represented under s.596 requires the satisfaction of two elements.    1 First, it must be determined whether one of the criteria under s.596(2) exists. That alone will not immediately invoke the right to representation. It is also necessary to establish that the issue “involves an evaluative judgment akin to the exercise of discretion.”2 If that exists, it is necessary to consider “whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”3

[7] In this matter there was a degree of complexity and I was satisfied legal representation would aid efficiency. The Respondent is a large company with dedicated human resources personnel. I was satisfied that granting permission to be represented was an option available and an appropriate exercise of my discretion. Accordingly, I granted the Applicant permission to be represented.

[8] The Applicant’s employment was most recently subject to an employment contract dated 28 August 2017, confirming the Applicant’s ongoing position as Finance and Insurance Consultant for the Respondent. The terms of the employment contract commenced 4 September 2017 and relevantly outlined the Applicant’s position and responsibilities as including to:

a) serve the Employer faithfully and diligently;

b) act in the Employer’s best interests at all times and refrain from acting, or being seen to act, in conflict with the Employer’s best interests;

c) comply with reasonable directions given to you by the Employer;

d) exhibit a professional and courteous attitude when dealing with the Employer, its customers, employees, supplier and the public;

e) perform the duties assigned to you to the best of your abilities and knowledge; and

f) comply with all the Employer’s policies, and that failure to do so may result in disciplinary action, up to and including dismissal.

Uncontested events relating to the Applicant’s conduct

[9] It is uncontentious that on or about 17 June 2020, the Applicant posted a meme on Facebook which included an image of him and a female colleague, Ms Ruby Metla (Ms Metla), with the words, “You pulled out right?” “Yeah, of course”, with a picture of a washing machine leaking suds onto the floor. He had done so after having received Ms Metla’s consent to post the image.

[10] However, after the image was posted, Ms Metla received several comments or responses from others. She asked the Applicant to remove the meme, which he eventually did.

[11] Later that evening, the Applicant posted a second meme to Facebook with a picture of himself and the words, “That moment after you’ve dropped a meme with the aim to upset some cunts….And you get to hear, cunts are upset”.

[12] The Applicant was asked to attend a disciplinary meeting on 18 June 2020 in relation to these events. What occurred at that meeting was subject to conflicting evidence which is dealt with below.

[13] Following that meeting, the Applicant was provided a show cause letter, dated 18 June 2020:

“Dear Matthew,

RE: Continuation of Employment

I am writing to you to confirm the outcome of our meeting on 18 June 2020 regarding the Company’s investigation into allegations of inappropriate workplace conduct by you. Also present at this meeting was Michael Dowling, General Manager 360Finance. I note that you declined the opportunity to bring a support person to our meeting.

As discussed, the specific allegations are set out below:

1. It is alleged on or about 17 June 2020 you posted an inappropriate meme of yourself and a female employee on social media stating words next to each person; Female: “you pulled out right?” Male: “Yeah, of course”, with a picture of a washing machine leaking suds onto the floor.

2. It is alleged that on or about 17 June 2020 you posted a second meme on social media, stating “That moment after you’ve dropped a meme with the aim to upset some cunts….And you get to hear, cunts are upset” with a picture of yourself.

3. Further, it is alleged the images you used were taken within the workplace for use in workplace material.

In our meeting on 18 June 2020 you were provided the opportunity to respond to these allegations. You advised that you do not consider the memes to be inappropriate as you do not have 360Finance listed as your employer on social media. You also advised that you had the permission of the female employee whose image you used to make the sexually explicit meme. Based on the evidence available and your responses, you were advised that the allegations are upheld.

On review of your employment history, similar concerns have been addressed with you previously, in relation to inappropriate comments regarding women, specifically, using words to the effect of “you might need to tighten your skirt”...“because invoicing is done by women mate”. I note that you were issued a formal warning as a result, dated 27 November 2019.

The Company considers your recent conduct to amount to social media misuse, misuse of company property, sexual harassment and a failure to adhere to the Company Sexual Harassment and Social Media policies. You have failed to act in the best interests of the Company, employees and customers and to meet the standards of behaviour expected of an employee in our business. Additionally, your use of a female employee[’]s work image in a social media post on your social media platform which has an audience reaching other employees is considered to be a defamatory, inappropriate and demeaning exercise with repercussions for the female employee and our business.

As a result, the Company is seriously considering the continuation of your employment. In light of this, you are being requested to provide the Company with a response as to why your employment should not be terminated in writing to by 12pm Friday 19 Friday June 2020 to [email address redacted]. You are also required to attend a meeting to be held at 2pm Friday 19 June 2020, at Zupps Subaru Mt Gravatt. You are welcome to bring a support person to this meeting if you wish.

I confirm that after this time, we shall consider all available evidence and your responses before making a final decision with regards to these matters. We remind you that this request is considered to be reasonable and lawful direction.

Should you fail to attend on this occasion without notification and supporting documentation, the meeting will be held in your absence and we will deem you have no further response, and forced to a decision with the information we have available.

It is unlawful for you to victimise or retaliate against any person you believe may have been involved in the investigation, and we would like to also remind you of your obligation for confidentiality in regards to the investigation and this outcome. If you breach these obligations, disciplinary action may be taken against you, up to and including termination of your employment.

I understand this may be a difficult time and would like to take this opportunity to remind you of the Employee Assistance Program (EAP). This is a confidential counselling service provided by Access Wellbeing Services which you can access directly on [redacted].

If you have any questions in relation to the matters covered in this letter, please do not hesitate to contact me directly on [redacted].

Yours sincerely

Sheree Tarman
People & Safety Manager
AP Eagers – QNT”

[14] By way of background, the formal warning dated 27 November 2019 related to allegations that were found to be substantiated involving the Applicant making sexist and derogatory comments to an external person. In the warning letter at that time, the Respondent stated that:

1) “As a senior broker and management figure (2IC) in the team, the impression that you have given to the team as to how discussions should or can be had between 360 Finance staff and any external person, whether supplier, customer or independent person.

2) Discriminatory comments regarding gender that were confirmed with that phone recording.

3) Exposure for 360 Finance if/when the person with whom you had the conversation with decides to escalate their complaint to an external agency.

Accordingly, while your actions and disregards for our policies are deemed to be of a serious nature, your long term successful service and dedication to 360 Finance have been considered, and therefore the following corrective actions will be implemented:

- This formal written warning will be held on your employee record;

- You will be demoted from your current position as a 2IC back to Finance Specialist role, and lose any privileges that are part of the 2IC role;

- You will acknowledge to the team (Chiefs) that the conversation that was overheard by them is not the correct way to transact with anyone and apologise for any offence caused to anyone in the team who overheard the conversation; and

- The company will conduct further audits of your calls over the following 3 months to ensure that no similar conduct is observed.”

[15] By letter dated 19 June 2020, the Respondent confirmed that the Applicant’s employment was to be terminated on the grounds that the posting of these memes constituted social media misuse, misuse of company property, sexual harassment and a failure to adhere to the Respondent’s policies or act in its best interests. That letter (relevant) read:

“Dear Matthew,

RE: TERMINATION OF YOUR EMPLOYMENT

I refer to our meetings on 18 June 2020 and today where we met with you to discuss your recent conduct. During these meetings you were provided the opportunity to respond to allegations of social media misuse and sexual harassment amounting to serious misconduct. Also present at these meetings was Michael Dowling, General Manager 360 Finance. I note that you were offered the opportunity to have a support person present at these meetings and declined.

The specific allegations are set out below… [the allegations are replicated as in the previous letter extracted above].

Given the evidence available and your responses, you were advised that the allegations have been substantiated. This conduct is considered a serious breach of Company’s Sexual Harassment and Social Media policies and the conditions of your employment.

After consideration of your responses, on 18 June 2020, you were informed that the Company was considering the termination of your employment for serious misconduct amounting to social media misuse, misuse of company property, sexual harassment and a failure to adhere to Company policies. In my letter dated 18 June 2020, you were given the opportunity to formally show cause as to why your employment should not be terminated in writing, and to attend a meeting on 19 June 2020 to discuss your response.

In response to this you advised that you would not be providing a written response, and that you do not believe you actions warrant termination for a post of a “funny meme” on your personal Facebook page. You also advised you have 7.5 years’ service and are a top performer. The Company has taken all relevant matters into account, including your responses to the allegations, as well as your employment history and length of service.

On review of your employment history, similar concerns have been addressed with you previously, where you received a written warning on 27 November 2019, for making inappropriate misogynistic comments, specifically, using words to the effect of “you might need to tighten your skirt” and “because invoicing is done by women mate”.

Unfortunately, your response does not sufficiently mitigate your serious misconduct and the Business has lost trust and confidence that the behaviour will not continue. We have a duty of care to provide a working environment that is safe from harassment. I confirm that the Company has decided to terminate your employment with immediate effect this 19 June 2020. This is a summary dismissal and you will not be paid in lieu of notice. You will be paid all accrued entitlements (less applicable taxes) and you will be advised of the details of your final pay separately.

….

Yours sincerely

Sheree Tarman
People & Safety Manager
AP Eagers – QNT”

[16] The Applicant’s conduct is largely undisputed. The question before me is whether this dismissal was unfair, in light of the rather unusual work environment that existed at the Respondent company.

Witnesses

[17] The Applicant gave evidence on his own behalf at the hearing. He also called his colleague, Mr Simeon Lawrence Kepo Samuel, who gave evidence at the hearing.

[18] The Respondent relied on evidence given by Ms Metla and Mr Michael Dowling.

Applicant’s Evidence and Submissions

[19] The Applicant stated that he was employed by the Respondent in February 2013 as a finance broker, responsible for organizing asset finance for clients through the major banks and lenders. Most of his dealings with clients were conducted over the phone or by email.

[20] His role involve liaising with banks and clients to secure a finance approval, arranging for the client to execute loan contracts and working with the banks/lenders to get loans settled. His performance was measured against sales targets, including regarding the number of loans he settled and the gross profit he generated.

Culture at the Respondent business

[21] The Applicant states that from February 2013 to June 2016, when the Respondent was managed by the Burgess brothers, it was a relatively small enterprise in which the Burgess brothers took a “hands off” approach to staff management. That is, the Burgess brothers were not particularly interested in managing or disciplining staff provided staff were meeting their targets and making money for the Respondent.

[22] The Applicant states that because of that approach, “all sorts of conduct” was permitted, including conduct that might “cause a more conservative or ‘risk adverse’ employer concern”.

[23] As examples of such conduct, the Applicant recalled the following behaviour which had been permitted (or at least, ignored) at the Respondent:

1) racially provocative (and sometimes racist) emails would be sent using photos of the Respondent’s employees being sent around the office. By way of example, the Applicant referred to an email sent in around mid-2019, which featured a picture of Osama Bin Laden crouching in a hole, where someone had photoshopped the Applicant’s face onto his body. In response to that email, Mr Mark Payne (Sales Manager) sent an email advising the brokers that this conduct was not acceptable, but there was other no disciplinary action taken and employees continued to send racist pictures and memes, with no consequences;

2) the giving of racist Secret Santa gifts. For example, in 2018, Ms Metla presented Kepo Samuel, a Polynesian gentleman, with a Secret Santa gift of a KFC chicken bucket full of cotton balls, unemployment forms from Centrelink and cotton wool, all things that relate to black people racially.  This was given to him in the office in front of about 40 staff;4

3) sexist emails being sent between employees, including for example, over the seven years he had worked there, when emails were sent to staff groups advising that the kitchen needed tidying, there would be multiple responses from people to the whole office saying, “That's a girl's job”, and include memes off the computer of women cleaning kitchens;

4) regular sexual harassment of staff in the form of sexual innuendo, public groping and sexually suggestive comments, whether verbally or in writing. For example, the Applicant himself had called Ms Metla “slutty Ruby” for a number of years in front of his colleagues, but had never been chastised by Ms Metla or his employer. He said this occurred in the context of their friendship and that no one had ever told him that such name calling was not appropriate in the workplace. The Applicant stated that there had been “major issues” in relation to women in the workplace, including with respect to how they dressed. He said, “So Ms Metla's had major issues in our office with HR over the years with how she's dressed at work, other women how they've dressed at work, women in our office complaining about other women and how they dress at work. It's been an issue forever.” 5

5) the nicknaming of a man who had a speech impediment by the nickname, “Stutters”. The Applicant gave evidence that, “Everybody called him Stutters, including management”;

6) frequent dissemination of rumours and gossip, including as to potential interoffice relationships. The Applicant said that in around 2015, he was made aware of a rumour that he and Ms Metla were having an affair. This was not true, but rumour continued to spread and employees responsible were not disciplined or chastised by management;

7) employees regularly swear on the office floor, including at clients and at colleagues, by using the words such as “fuck”, “cunt”, “shit” and “doctor faggot”. The Applicant understood that the Respondent has lost customers who have overheard swearing in the background, but no action was taken by management; and

8) that finance brokers regularly engage in “aggressive or abusive” conversations with clients and suppliers, which he says was initially encouraged by the Burgess brothers because it promoted a “no nonsense” approach to dealing with clients and other contacts.

[24] The Applicant asserted that this behaviour occurred openly and seemingly without consequences from management. It must be said that much of this conduct occurred under the Burgess brothers and earlier iterations of the Respondent.

[25] The Applicant admitted to having engaged in some of this behaviour. He said also that the way he spoke to clients had not substantially change over the course of his employment. From the date he commenced with the Respondent to November 2019, he consistently engaged in “robust conversations” with clients, colleagues and dealers, and these conversations often included using language that might be characterised as “abrupt, rude or offensive”. The Applicant states that despite engaging in the behaviour described as above, “as much as any other employee of [the Respondent]”, he was promoted in 2019 to the position of Team Leader, a role that involved managed of five other brokers.

[26] Further, until November 2019, he had never been reprimanded or counselled regarding the way he spoke to clients. The Applicant maintained that his conduct was consistent with how his colleagues spoke to him and how he heard his them engage with their own clients and dealers.

First ‘final’ warning

[27] The Applicant received a ‘final’ warning in January 2019 which resulted in his demotion. He was told this action was taken because he had left closed client files in his desk drawer, however he says this was a practice regularly engaged in by finance brokers and he did not believe this to be the “actual (or entire)” reason for his demotion.

[28] The Applicant states his belief that the reason for his demotion was due to him, a couple of weeks prior to the “alleged ‘discovery’” of the files in his desk drawers, being involved in an incident he had witnessed at the work Christmas party.

[29] The Applicant’s evidence is that at the Christmas party, which progressed from a pub to a strip club, he had seen Mr Gus Kinimot, AHG’s General Manager of Finance and Insurance for Australia and New Zealand, with Ms Geri Burgess, who was the sister of the Burgess brothers, in various positions that he described as “uninhibited and overly familiar”. He says that he saw them leave the strip club together.

[30] The Applicant gives evidence that he told a number of his colleagues that Mr Kinimot and Ms Burgess had left together and “speculated that they may have gone home to have sex”. The Applicant states that “regrettably”, this rumour spread around the office and senior management, including Mr Kinimot and Ms Burgess, became aware of the rumour.

[31] The Applicant states that in January 2017, he was asked to attend a meeting with Mr Waycott, the person introduced as the new General Manager in 2019 after AHG took over. At that meeting Mr Waycott said words to the effect of, “You have engaged in locker room talk and I want you to apologise to Geri.”

[32] The Applicant states that following that conversation he apologised to Ms Burgess. He says that conversation took about 40 minutes, during which he tried to convey his “sincere apologies for any offence caused”.

[33] He says however, about two weeks after this meeting, while he was on a period of annual leave, his desk drawers were searched and the client files were located and brought to the attention of Mr Waycott. The Applicant notes he was subsequently demoted and issued a final warning for failing to comply with the Respondent’s policies.

Second ‘final’ warning

[34] The Applicant says after the first warning, he continued to perform his role of finance broker. He notes that after the Burgess brothers left the business, he began receiving emails that, “ought to have been directed to the former 360Finance Director, Mr Matthew Burgess”. He states this was likely an IT error because he and Mr Burgess share the same first name.

[35] The Applicant’s evidence is that despite recognising the error, he did not raise or attempt to resolve it with IT for two reasons:

(a) “firstly, I knew Mr Burgess’ email address would supply repeat business from his former clients, and I would be in a position to service those leads which would potentially increase my income. As finance brokers draw between 50-75% of our income from commissions, there was a significant financial incentive for me to secure these clients; and

(b) secondly, I was receiving a large amount of pornographic material that was being sent to Mr Burgess’ email address and I was concerned that management would not believe that I had not caused this offensive material to be sent through to a company email.”

[36] The Applicant notes the fact that he was receiving these emails eventually came to the Respondent’s attention, because he told a number of staff members about private details in a personal email sent to Mr Burgess’ old email address. The Applicant notes further that the fact he was aware of this personal information eventually made its way back to Mr Burgess, who reported the issue to Mr Waycott.

[37] The Applicant was suspended for a week pending an investigation into the event, at the conclusion of which he says it was found that he had engaged in what Mr Waycott described as, a “huge breach of privacy”. He says despite this conduct, he continued in his role as finance broker and received a further first and final warning.

Promotion

[38] The Applicant says that in about January 2019, Mr Waycott left the business. He says shortly after, he was promoted to the position of Second-In-Charge (2IC).

[39] The Applicant states that in this role, he continued to perform his work as a finance broker, however now had leadership responsibilities including assisting other finance brokers with their day-to-day duties, providing advice, mentoring and direction to employees in relation to their work and receiving and dealing with client complaints.

[40] The Applicant performed the role of 2IC for approximately 12 months, before being involved in “the incident with a vehicle supplier in November 2019”.

Third ‘final’ warning

[41] The Applicant states he was issued a third ‘final’ warning for comments he made to a vehicle supplier in November 2019. The Applicant’s evidence is that the vehicle supplier was responsible for selling a caravan to the Applicant’s client and the Respondent was responsible for financing the purchase. The Applicant says he had cause to call the supplier to obtain a tax invoice which he needed to secure the finance.

[42] The Applicant says while the provision of the tax invoice was ultimately the supplier’s responsibility, the supplier was reluctant to assist the Applicant. The Applicant says that consistent with his “somewhat abrupt and, at times, abrasive and informal manner of communication at work”, he said words to the supplier to the effect of:

If you have made a data entry error that is preventing the invoice from being sent through, perhaps you could tighten your skirt and get on and get it right”.

[43] Following this comment, the supplier made a complaint to the new General Manager, Mr Michael Dowling and the Applicant was consequently demoted back to the position of finance broker. The Applicant apologised to the Team, particularly the females therein, for his comments.

[44] The Applicant was issued a further final warning for this conduct. In cross-examination, the Applicant attempted to shed light on the comment by saying that, “Every invoice I have received from a caravan yard in seven years has come from administration women.” 6

Conduct leading to dismissal

[45] The Applicant says that in about March 2020, he was stood down from his role due to there being insufficient work for him to perform due to the pandemic. The Applicant confirms that he began receiving JobKeeper payments from the date he was stood down.

[46] I have described the conduct leading to dismissal above. That was not disputed by the Applicant. However, the Applicant did make submissions in respect of the context in which the comments were made.

[47] In relation to the meme involving Ms Metla, the Applicant stated that he had been friends and colleagues with Ms Metla for approximately 7.5 years, that the pair socialised together outside of work with their families and he was one of only three employees of the Respondent that were invited to Ms Metla’s wedding. He says that prior to posting the meme, Ms Metla had sent him the picture of herself that was used in the meme and asked the Applicant to use it to make a meme, “as it was a better quality photo than a photo that [he] had previously used in a meme about Ms Metla”.

[48] The Applicant’s evidence is that he sent Ms Metla a copy of the meme he had created prior to posting it to his Facebook and had checked that she did not find it offensive. He states that “Ms Metla advised that she approved of it being posted to [his] personal Facebook page”.

[49] The Applicant was careful to obtain Ms Metla’s consent because on what had happened in around January 2018, when he had posted a meme to Facebook that used the company photograph of another employee of the Respondent and captioned the picture, “I wasn’t always a shit cunt, oh wait I’m [name]”. After he posted this meme, he was asked by Mr Timothy Stevenson, National Sales Manager for the Respondent, to remove it. Mr Stevenson said words to the effect of, “You didn’t seek [the employee]’s approval before you posted that meme, so I’m going to ask you to remove it.” Apart from this, the Applicant says no further action was taken and he was not subject to any disciplinary action as a result. He says that his understanding was that the issue with the meme was not the act of posting it, but rather the lack of consent from the individual involved. Consequently, he was careful to check that Ms Metla was happy for the meme to be posted.

[50] After the Applicant posted the meme, Ms Metla contacted him and said words to the effect of, “Maybe we should take it down, some people are starting to get upset”. He did so.

[51] He says he then posted another meme to his Facebook page, with a picture of him and the words, “That moment after you’ve dropped a meme with the aim to upset some cunts…. And you get to hear, cunts are upset”.

Disciplinary meeting

[52] On 18 June 2020, the Applicant was asked to attend a disciplinary meeting to discuss the two memes. He says that during this meeting, Ms Sheree Tharman, People and Safety Manager with A. P. Eagers Queensland and Northern Territory, said words to the effect of, “You have engaged in sexual harassment and breached the Social Media Policy”.

[53] The Applicant’s evidence is that he replied with words to the effect of, “I asked Ruby if I could post the meme before I put it on my Facebook page. I don’t understand how this could be sexual harassment, as she was ‘ok’ with it”.

[54] He confirms that his employment was then terminated on 19 June 2020, with immediate effect due to the Employer having found that he engaged in ‘serious misconduct’.

Applicant’s reply to Ms Metla and Mr Dowling’s evidence

[55] Ms Metla and Mr Dowling gave evidence (which is summarised below), points of which were disputed by the Applicant.

[56] The Applicant does not agree with Ms Metla’s evidence that they were “colleagues”, he states that they were “friends”. He confirms his evidence as above that he was one of three of the Respondent’s employees who was invited to Ms Metla’s wedding and stated that they have socialised outside of work with their families.

[57] The Applicant stated he and Ms Metla would joke with each other, both within and outside the workplace, in a manner other people might find crude or offensive, confirming his earlier evidence that he would sometimes refer to her as “slutty Ruby” and stating she would refer to him as “cunt” or “cunt rash”. He annexed copies of text messages using these phrases. 7 The Applicant confirmed that their conversations were sometimes sexually explicit.

[58] The Applicant stated that in respect of the memes:

“… I have made a number of memes featuring Ms Metla in the past, and she has never expressed any concern to me associated with these memes. Indeed, Ms Metla never said anything to me about the way I spoke to or about her in the workplace. Given the length of our relationship, and how close we were, I would have expected Ms Metla would have said something to me, if she genuinely held concerns about how I spoke to (or about) her.”

[59] The Applicant restated his evidence that Ms Metla provided the photo used in the meme and states that he disagrees with Ms Metla’s evidence that she did not consent to the meme being posted to Facebook or withdrew her consent. The Applicant annexed a copy of text messages between himself and Ms Metla, which he relies on as Ms Metla providing her consent to the meme being posted. 8

[60] The Applicant confirms he is no longer in touch with Ms Metla and states he is sad that their friendship ended because of this incident. He states he never intended to cause her any distress and that he would be willing to participate in mediation and apologise to assist rebuilding their friendship.

[61] In reply to Mr Dowling’s evidence that he tried to build a culture of mutual respect within the Respondent, the Applicant states that he is not aware of what, if any, steps Mr Dowling took to initiate this change. The Applicant stated that Mr Dowling himself spoke inappropriately to employees, including by yelling and swearing at staff in an aggressive and intimidating manner. He says that Mr Dowling yelled the word “fuck” at the staff who were gathered in one particular meeting in November 2019 between 15-20 times. He notes that he did not feel personally offended by this conduct because it was consistent with the culture at the Respondent, however, he states it does not seem consistent with Mr Dowling’s evidence of a culture of “mutual respect”.

[62] Further, the Applicant’s evidence is that Mr Dowling nor any other employee of the Respondent spoke to him about the Respondent’s policies, including the sexual harassment and social medial policies. The Applicant states that the only training he participated in was conducted by Mr Michael Rudd, State HR Manager for AHG. He says that the training was conducted about a month after AHG brought the business from the Burgess brothers and was a full induction into AHG’s processes. He states the training lasted about 1-2 hours and while he concedes that sexual harassment was discussed, he states that “discussion was brief and superficial [and] did not go into detail as to what was required”. Nor did anything “change (sic) about the culture of the workplace after the training was conducted.” In cross examination, the Applicant confirmed that he was aware of the policies in place, but said that, “I followed what was allowed by our managers in our office. They [the Burgess brothers] allowed certain behaviours and everybody operated within that.” 9

[63] The Applicant states he recalls discussing the social media policy at this training, noting Mr Rudd said words to the effect of:

“If your personal Facebook page, or other social media account, identifies AHG as your employer, then anything you say might be taken to represent AHG. If you are going to identify AHG as your employer, you need to make sure your social media posts are acceptable and do not breach the policy.”

[64] The Applicant says following this warning, he removed references to the Respondent from his personal Facebook page, so that his employer was no longer identifiable.

[65] The Applicant rejects Mr Dowling’s evidence that he was indifferent to the Respondent’s concerns. The Applicant states he was confused by the Respondent’s concerns, because after he posted the previous meme of Mr Butler and he was chastised for not seeking Mr Butler’s consent prior to posting, he says he had been “sure” to seek Ms Metla’s consent to the meme involving her photograph being posted.

[66] Regarding the disciplinary process, the Applicant states that Ms Tarman was “quite adamant” in her assertion that the meme constituted sexual harassment. He says that he was not left with the impression that “anything [he] said would have made a difference to the outcome, based on the way Ms Tarman was speaking to [him]”. He says that Ms Tarman’s voice was raised during the phone call and she was speaking in an assertive and forceful manner and she said, “between 5-6 times”, words to the effect of, “That is not acceptable. Do you agree that it is unacceptable?” The Applicant had the impression that Ms Tarman was “just trying to get [him] to admit that the memes were unacceptable, rather than listening to [his] responses”.

[67] In respect of the second show cause meeting, the Applicant states that Ms Tarman asked if he had received the show cause letter. His evidence was that he had not received the letter as he had not checked his emails, however after the question by Ms Tarman he accessed his emails on his phone and opened the attachment. The Applicant’s evidence is that he was stood down and on JobKeeper payments, therefore was not regularly checking his emails during this time.

[68] The Applicant stated that when asked by Ms Tarman whether he had read the show cause letter he responded, “I’ve just read it”. When asked about his written response he replied, “Why do I need to prepare a written response? You already know what my responses are to this, from our conversation yesterday.”

[69] The Applicant states that Ms Tarman then adjourned the meeting and when it resumed, Ms Tarman advised him that he was being dismissed.

[70] The Applicant states that during the first and second meetings, Ms Tarman did the majority of talking on behalf of the Respondent. He states that Mr Dowling’s only contribution was to confirm who particular workers were and the positions they held. He states that he had never previously met Ms Tarman and had not seen her in the office. Prior to the meeting, he believed Mr Rudd was still the relevant HR Manager for the organisation.

Simeon Lawrence Kepo Samuel’s evidence

[71] Mr Simeon Samuel provided evidence at the hearing by telephone. In short, Mr Samuel stated that he had commenced with the Respondent in September 2016 and had worked with the company for approximately a month before AHG took over. He states that the business had a “ruthless” culture for the entire time he had worked there. He states:

A lot of racial - yes, definitely. I'd say - yes, I'm a person of colour, I've got my fair share, but I think that just comes with the normal - it's normal I guess. When I stepped into it a lot of it was happening already, so - because really - I don't really bat an eye and we're all there to do a job, so kind of just got on with it.” 10

[72] When asked whether things had changed since AHG took over, and then Eagers, Mr Samuel stated:

“Not really. I guess people are still - like when - when they left and AHG took ownership over the company a lot of - a lot of the foundation members that were there from the start started to kind of drip off. So I guess that culture wasn't driven as much as it was when I first started before AHG took ownership. So there was a slight change, but there was still a sense of ruthlessness on the floor. Like you could still - it wasn't taboo, like it was still happening, but just not as much.” 11

[73] He states that he had seen comments in the office from male employees to female employees including “Your arse looks nice” or “Your chest looks nice”. 12

[74] When asked about the Secret Santa gift, Mr Samuel’s evidence was that he found it funny, but noted that other people may find it offensive:

There has been some information under oath today from Mr Thompson that - if you cast your mind back to Christmas 2018 there was a staff function? Yes.

As it was recalled it was Ms Metla that provided you a secret Santa gift which was a KFC bucket of cotton wool with unemployment forms in it. Is that correct? Yes.

Why was that and how did you feel about that, or can you give me some context? Okay, yes. So secret Santa I got given a bucket of KFC, like a KFC bucket. Inside, yes, was cotton wool, unemployment forms, Kool-Aid - what else was in there. Yes, I don't recall, sorry.

And why was it given to you? I guess like - yes, I think that's a point of my colour I guess. I'm not too sure, but it was all things that are associated with coloured people. Yes. I found it funny, I didn't really - but that's my nature. I know people that wouldn't find that funny, definitely.” 13

[75] His evidence was also that some people in the office referred to him as “Blackie”.

[76] He states that sexist or racist memes or offensive emails were circulated generally all the time. He states that, “If something was funny it would be circulated”. 14

[77] Mr Samuel’s evidence however was that since Eagers had taken over the business, “you can definitely see [the workplace culture is] better than what it was previously” but these things are “definitely still happening”.  15

[78] As to the Applicant’s behaviour and sense of humour, Mr Samuel gave the following evidence:

“He's got a unique sense of humour.  He's definitely very direct with what - what he says.  So a lot of people would go to him to tell him stuff so that he could take it up to higher management.  So he had a lot of knowledge of other people …So in the leading days - the last year I'd - I'd say yes because he was the only - the only person that's been there for more than five years.  So in terms of stirring the pot, yes, he would be our person.” 16

[79] When questioned about the business and workplace culture generally, Mr Samuel’s evidence is that he would not recommend the workplace to a young person or a female.

Submissions

[80] The Applicant submits that he did not engage in the conduct alleged to constitute serious misconduct and instead submits that his conduct was condoned by the Respondent, which had demonstrated its willingness to tolerate such conduct by the Applicant and its other employees. On that basis, the Applicant argues that the Respondent waived its right to terminate the Applicant’s employment with reliance on the conduct.

[81] The Applicant submits that considerable assistance can be derived from the established principles as to the assessment of valid reason. The Applicant cites the decision in Byrne v Australian Airlines, which sets out the general approach to be taken to matters of this type:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”  17

[82] The Applicant also cites the decision in Selvachandran v Peteron Plastics Pty Ltd, which provides, in relation to the statutory predecessor to s.387(a):

“In its context in s 170DE(1), the adjective 'valid' should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operation requirements of the employer's business.”  18

[83] The Applicant pointed to the decision in Edwards v Giudice and Ors, in which Moore J said:

“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”  19

[84] The Applicant submits that in accordance with the remarks of Moore J in Edwards, in considering “valid reason” the Commission must firstly make a finding of fact as to what actually occurred, which necessarily includes a consideration of the entire relevant factual matrix. The Applicant submits that in undertaking this task, the principle expressed by the Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltdis apposite:

“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.”   

[85] The Applicant submits that while he bears the onus of proving that the dismissal was harsh, unjust or unreasonable, in cases of dismissal arising from alleged serious misconduct, an evidential onus of proof shifts from an Applicant to the Respondent.

[86] The Applicant submits that once the necessary finding of fact has been made, the second task for the Commission to undertake is to consider whether the Applicant’s actual conduct was of sufficient gravity to justify termination.

[87] Here, the Applicant refers to the decision of IGA Distribution (Vic) Pty Ltd v Nguyen, which involved an employee terminated for a serious safety breach (in deliberately driving a forklift into another vehicle). The Full Bench stated:

“The characterisation of the Applicant’s conduct in causing the collision as being reckless and careless, rather than deliberate, does not in our view derogate from the seriousness of the conduct or the possible health and safety implications. The assessment of whether there is a valid reason for termination of employment will commonly involve consideration of the context in which the behaviour occurred and the gravity of the conduct itself. These considerations may also be relevant to the determination of whether the termination of employment was harsh, unjust or unreasonable.”  20

[88] The Applicant also cites the decision in Qantas Airways Ltd v Cornwall, in which the Full Court of the Federal Court acknowledged that:

“The question is whether there was a valid reason. Conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”  21

[89] The Applicant submits that in matters of this type which have led to grave consequences for the accused person the Commission should closely scrutinise the Respondent’s evidence and require clear, cogent or strict proof before holding any such allegation proved and that the Respondent bears both the onus of establishing that any alleged misconduct took place and the onus of establishing a valid reason.

[90] The Applicant submits that mere assertions by the Respondent about the characterisation it has chosen to give to conduct, performance or work history will not be sufficient to discharge this evidentiary onus. The Applicant says it is incumbent on the Respondent to prove the alleged misconduct and poor performance to the relevant standard, by way of admissible evidence, and a failure by the Respondent to do so must result in a finding that the relevant assertion is not proven.

[91] The Applicant submits that in light of the above principles, there is no valid reason for the Applicant’s dismissal. The Applicant denies his behaviour constituted a departure in any way from the standard of conduct in which he had engaged during the course of his employment with the Respondent.

Opportunity to respond

[92] The Applicant refers to the decision in Thomas v Ralph Lynch trading as Bellingen Grocery, in which Wilcox CJ made the following observations:

“One of the purposes of Division 3 of Part VIA of the Act was to improve the way employers treat their employees. It is conducive to that purpose to interpret s170DE(1), in a situation like this, as requiring that, before a notice of termination of employment is given the employer attempt a real discussion with the employee about the best way of handling the problem confronting them both.”  22

[93] In Crozier v Palazzo Corp Pty Ltd the Full Bench said, in relation to the statutory predecessor to s.387(c):

“For the reasons we have set out in relation to s.170CG(3)(b) we think that the ‘opportunity to respond’ referred to in s.170CG(3)(c) is a reference to any such opportunity which is provided before a decision is taken to terminate the employee's employment.”   

[94] The Applicant submits that on these authorities, he was not afforded an opportunity to respond to the reason for termination. The Applicant submits there is no evidence of the Respondent having genuinely considered the Applicant’s responses to the allegations. He submits that the Respondent’s conduct during the course of the disciplinary proceedings, along with the truncated nature of the disciplinary process, is demonstrative of a decision having been made at an early stage that the process would result in the termination of the Applicant’s employment.

[95] The Applicant submits that he was not afforded an opportunity respond to the reason for termination, which supports a finding that the termination was harsh, unjust or unreasonable.

Size of the Employer’s business and human resources personnel

[96] The Applicant submits that the disciplinary process conduct by the Respondent was flawed in the terms identified above and fell short of the standard to be expected of a large employer with significant resources and dedicated human resources personnel.

[97] The Applicant submits that this factor weighs towards unfairness.

Other relevant matters

[98] The Applicant submits that his lengthy history of service is a factor that weighs towards unfairness.

[99] The Applicant submits that “as might be expected”, as at the time of filing his submissions in these proceedings, he has been unable to obtain further work despite being “highly motivated and very experienced”. Further, he submits that the termination of his employment has caused him great emotional and financial stress. The loss of income caused by the termination has also been substantial.

[100] The Applicant cites the decision in Quinlivan v Norske Skog Paper Mills (Australia) Ltd, in which VP Lawler held, in considering an applicant’s personal and economic circumstances and finding the termination to be harsh, that:

“From the perspective of the personal and economic situation of the applicant, the dismissal was a disaster for the applicant. For a man of the applicant’s age and poor educational profile, it is unsurprising that he has not been able to find another job despite great efforts to do so. Realistically, the applicant faces the prospect of long term unemployment or underemployment. His family faces severe financial hardship. There is a real risk that he will lose his house. His marriage will suffer increased stresses. His wife’s depression could well be exacerbated. All these circumstances are likely to impact adversely on his young daughters.”  23

[101] The Applicant submits that in the present case, the termination of his employment in the circumstances has meant that the impact of the termination is at the more severe end of the harshness scale. He submits on that basis that the termination was unfair on that basis alone.

[102] The Applicant submits that the termination has been a personal, professional and financial disaster for him and has placed him in a situation in which he will struggle to find another job in the same or similar position.

Remedy

[103] The Applicant seeks reinstatement and submits that reinstatement is appropriate in all the circumstances. The Applicant seeks an order maintaining his continuity of service and a corresponding order requiring the payment of wages from the date of his dismissal to the date he resumes work.

[104] In the alternative, the Applicant seeks compensation. In the Applicant’s submission, the circumstances of this case, particularly the fact that the Applicant’s loss will likely exceed six months wages, warrant an order for the statutory maximum compensation of six months.

Applicant’s reply submissions

[105] The Applicant raised in reply a number of concerns about the Respondent’s materials, which I have summarised below.

[106] The Applicant submits that the Respondent makes several propositions that are not supported by any evidence before the Commission. The Applicant submits that the Respondent uses words such as “clear” or that a matter has been “demonstrated” without proper reasoning provided for those conclusions. The Applicant submits that the Commission should scrutinise the material as a result of these “broad sweeping generalisations”.

[107] Further, the Applicant submits that the Respondent has not led evidence to dispute the Applicant’s specific examples of conduct historically tolerated in the workplace. The Applicant relies on the evidence of Ms Metla in support of his position that misogynistic and racist comments were tolerated in the workplace. He states therefore the Respondent cannot “render him” the exception.

[108] As to any damage claimed by the Respondent to its reputation, the Applicant submits that in cases involving out of hours conduct, it is not sufficient for the Respondent to simply assert that the conduct will in some way affect the employer’s reputation or compromise the employee’s capacity to perform his or her duties, there needs to be evidentiary material upon which a firm finding may be made. 24

[109] Further the Applicant submits that the Respondent refers to concerns held by Mr Payne, however no evidence has been filed by Mr Payne in these proceedings, nor has there been evidence filed by the other employees of the Respondent to confirm any concerns held. The Applicant submits that any evidence or submissions based on hearsay should not be accepted by the Commission.

[110] The Applicant submits that no evidence has been led by the Respondent in support of its position that it considered the Applicant’s responses prior to deciding whether to terminate his employment. The Applicant notes that Ms Tarman has not provided evidence or a statement. The Applicant’s position is that if the Respondent had given genuine consideration to the Applicant’s responses, including that Ms Metla agreed to the creation and posting of the relevant meme, the Respondent could not have concluded that the Applicant engaged in sexual harassment within the definition in the Sex Discrimination Act 1984 (Cth) or the Anti-Discrimination Act 1991 (Qld).

[111] As to the Respondent’s position that it was upset by the Applicant having used its intellectual property for his own gratification, the Applicant submits this is “entirely inconsistent” with its prior response to the Applicant in circumstances where he had engaged in the same behaviour. The Applicant submits that no explanation has been provided now as to why this constituted a “blatant misuse of company resources” and a “serious and significant breach” of the employer's trust and confidence, when it previously did not.

[112] In reply to the Respondent’s submission that the Applicant has breached its policies, the Applicant submits the Respondent has not identified the provisions of the relevant policies that the Applicant is said to have breached. The Applicant relies on the supporting text messages filed, and notes that Ms Metla has confirmed she was not offended by the fact that the meme was created, and she did not mind that it was posted to Facebook, therefore the Applicant submits the conduct falls short of sexual harassment.

[113] The Applicant notes that notwithstanding that the policies were attached to the Respondent’s submissions, the particular sections or obligations have not been identified. The Applicant identifies that the sexual harassment policy defines sexual harassment as “sexual harassment is any unwanted, unwelcome or uninvited behaviour of a sexual nature which makes a person feel humiliated, intimidated or offended”.

[114] He says however there is no evidence that the conduct caused Ms Metla to feel humiliated, intimidated or offended, rather Ms Metla identifies that the primary cause of her concern was the sharing of the meme through Facebook, not the creation of the meme itself. The Applicant submits Ms Metla was content for the meme to be posted to Facebook, however “apparently changed her mind, once she realised it was being circulated and shared by other people”, which the Applicant submits is not conduct for which he can reasonably be held responsible. He submits the meme being shared by third parties was separate matter entirely and “we would respectfully submit a consequence that was entirely within the realm of foreseeable events when Mr Thompson posted the meme to Facebook”. 25

[115] The Applicant submits that Ms Metla only became concerned after colleagues including Mr Dan Butler and Mr Payne made contact with her, further to which Ms Metla said to the Applicant that he “might want to remove [the meme] haha I’ve had some calls”. In the Applicant’s submission, the tone of this request is not consistent with the Respondent’s submission that Ms Metla was “traumatised” by the Applicant’s conduct.

[116] The Applicant confirms that he and Ms Metla had a long standing friendship, “based on mutual respect, albeit a friendship that was by the parties sharing jokes that might otherwise be characterised as ‘crude’, and which included Mr Thompson having created memes like this in the past”. The Applicant submits the Respondent’s conclusion that he sexually harassed Ms Metla is “wilfully ignorant” of the relevant facts, and without having regard to all of the circumstances.

[117] As to any serious breach of the Respondent’s social media policy, the Applicant again submits that the Respondent has not identified the specific clause he is said to have breached, and further submits the Respondent has adopted a “lax measure of enforcement” in respect of breaches of this policy.

[118] The Applicant submits he did not intend to cause distress to Ms Metla or his colleagues through posting of the meme.

[119] The Applicant further submits the Respondent led no evidence that he was “sufficiently warned” regarding any further breaches, in terms of the consequences for his ongoing employment, noting that:

(a) the Applicant has not been found to have previously breached the Respondent’s social media policy; and

(b) the Respondent had a history of issuing ‘first and final warnings’ to the Applicant, such that he had no reason to expect that he was actually on his ‘final’ warning.

[120] The Applicant submits the Respondent has not led evidence that the Applicant received training in the standards of conduct the Respondent was “hoping to implement”. The Applicant says it is not sufficient to say that he should have been aware of the company’s zero tolerance policy on sexual harassment, in circumstances where the Applicant submits “the company ostensibly tolerated that conduct by taking no further action in relation to this conduct, apart from issuing the third ‘first and final warning’”.

[121] The Applicant submits that given the historical tolerance of such behaviour in the workplace, he did not reasonable expect the ‘strong disciplinary message’ the Respondent implemented on 17 June when it terminated his employment.

Closing submissions

[122] In closing submissions, the Applicant maintains that when he commenced with the Respondent business, it was a small business owned and operated by the Burgess brothers, who “fostered and condoned” a workplace culture that could be described as:

“(a) combative;

(b) emphasized sales performance over all other metrics in terms of assessing the viability of the ongoing employment of employees;

(c) one in which the electronic and verbal communication between staff members ran the full gamut of offensiveness, and included sexist, racist, ableist, sexually explicit and homophobic remarks;

(d) one in which staff members used, and referred to each other by use of, explicit language, including by calling each other ‘cunt’”. 26

[123] The Applicant notes that AHG acquired the Respondent in ‘two tranches’, and from about 24 October 2019, AP Eagers acquired AHG. He notes that from January 2019, Mr Dowling has been the General Manager of the Respondent.

[124] The Applicant submits that he presented as a truthful and reliable witness throughout the proceedings, and that he demonstrated a preparedness to make concessions that were adverse to his interests where appropriate. He submits this should give the Commission confidence in the veracity of his evidence.

[125] As to evidence given by Mr Samuel, the Applicant submits that this supports his evidence of a culture of racist and sexist remarks. He notes Mr Samuel’s evidence that he was the subject of racist remarks and nicknames but just “got on with it”. Regarding any changes to the workplace culture, the Applicant’s closing submissions in response to Mr Samuel’s evidence was as follows:

“However, when subsequently asked by the Deputy President what he meant by the phrase ‘cleaned up’, Mr Samuel was unable to elaborate or identify the specific changes that he had observed, and went on to note that he hadn’t spent much time in the office or on the floor in 2020. Mr Samuel then clarified that the conduct that he had referred to earlier was ‘definitely’ still happening as at January and February 2020.” 27

[126] The Applicant also relies here on Mr Samuel’s evidence that he would not recommend the workplace to a young relative or a young female. 28

[127] The Applicant submits that Mr Samuel presented as a candid and truthful witness and therefore his evidence as to the workplace culture should be afforded significant weight, noting his lack of material interest in the outcome of the proceedings.

[128] The Applicant relies on his earlier evidence as to his personal and professional relationship with Ms Metla. He submits that he was not the ‘only perpetrator’ of sexual harassment in the office including the sexual harassment of Ms Metla. He relies here on the evidence given by Ms Metla, including her confirmation that they communicated in an unorthodox way and would often exchange messages with explicit and gratuitous sexual connotations. He submits that Ms Metla’s evidence regarding workplace culture is broadly consistent with his evidence and the evidence of Mr Samuel, as she recalls incidents where the Respondent had tolerated racist, sexist and other inappropriate behaviour. The Applicant submits that while Ms Metla suggested the workplace culture had improved following AP Eagers acquiring AHG, she did not identify any particular metrics in reaching her conclusion that the culture had improved.

[129] The Applicant submits that Ms Metla did not present as a “particularly credible witness” and therefore the Commission should exercise considerable caution when relying on her evidence in respect of contentious matters. The Applicant submits that Ms Metla harbours feelings of animosity towards him following their “falling out”. Further the Applicant submits that Ms Metla harbours feelings of animosity:

“not because she was offended by the posting of the First Meme, which she went to lengths to emphasize – but due to a mistaken belief that the Second Meme was directed at her and the Applicant was purportedly relishing in the belief that he had upset her, when she was not the target of the Second Meme at all.” 29

[130] The Applicant also submits that, as to Ms Metla’s credibility, she had confirmed under oath that her statement was true and correct, but then conceded that “significant components of her evidence were inaccurate”.

[131] The Applicant submits that, contrary to the Respondent’s submissions, Ms Metla was not “too polite” to speak out against his behaviour. The Applicant argued that Ms Metla had demonstrated a willingness to speak out against behaviour that she considered unacceptable in the workplace, including where it was directed at her. 30 He submits that:

“…Ms Metla demonstrated that she was confident, assertive, unafraid of confrontation, and prepared to forcefully challenge what she considered to be inappropriate conduct towards her, without hesitation. Ms Metla’s conduct in the witness box, appears consistent with the assertive – if not aggressive – manner in which she had previously confronted the Applicant when he perceived that he had slighted her, in which she threatened to ‘cut your balls off and feed them to my neighbour’s dog.’” 31

[132] The Applicant concludes as to Ms Metla’s evidence:

“It is respectfully submitted that Ms Metla’s personal grievances with the Applicant had distorted and coloured her perception of the past events. Ms Metla has also demonstrated a tendency (consciously or subconsciously) to bend her account of relevant events to align it with the case advanced by the Respondent. We don’t purport to criticize Ms Metla in this regard, but submit that it must factor into the Commission’s assessment of the veracity of her evidence.” 32

[133] As to Mr Dowling’s evidence, the Applicant made the following remarks in closing submissions.

[134] The Applicant submits that Mr Dowling referred to the business as being “on a journey” to cultural change, but acknowledged that changing the culture of an organisation does not happen overnight. The Applicant submits that Mr Dowling did not provide any details regarding what the “journey” involved or what he meant in saying the workplace was being “smartened up”. The Applicant notes that Mr Dowling said he had conducted consultations with staff but did not identify any specific instances where he had counselled an employee.

[135] The Applicant submits that Mr Dowling gave evidence he was aware of the racist gift given to Mr Samuel but that he did not take any action as he considered it banter.

[136] Further the Applicant submits that Mr Dowling confirmed he was not aware of any complaints of sexual harassment regarding the Applicant. As to the disciplinary process, the Applicant submits Mr Dowling confirmed he was not aware of the entirety of the text messages exchanged between the Applicant and Ms Metla. The Applicant submits that:

“Mr Dowling's evidence appears to be that his primary concern was that there were work images on Mr Thompson's Facebook page that were being viewed by work people and that these were ‘still company images on Mr Thompson's Facebook page in a really derogatory sense.’ Mr Dowling directly contradicted the Respondent's submissions that Mr Thompson's termination arose because there were concerns regarding him having sexually harassed Ms Metla.” 33

[137] The Applicant submits that Mr Dowling did not afford him appropriate time in providing his response during the disciplinary process and further that Mr Dowling did not take his personal circumstances into account in determining the appropriate penalty.

Harsh, unjust or unreasonable

[138] As to the reasons for the Applicant dismissal, including “serious misconduct amounting to social media misuse, misuse of company property, sexual harassment and a failure to adhere to Company policies”, the Applicant notes that Ms Tarman was not called by the Respondent to give evidence as to the extent to which the alleged social media misuse and failure to adhere to company policies was a factor in the decision to dismiss the Applicant. The Applicant submits that the Respondent appears to have abandoned these as relevant matters, instead focussing on alleged sexual harassment of Ms Metla and misuse of corporate photographs.

[139] As to sexual harassment, the Applicant relies on his earlier submissions and submits that his relationship with Ms Metla was such that it “could not seriously be suggested that a reasonable person, having knowledge of these circumstances, would conclude that Ms Metla was likely to be offended by Mr Thompson's conduct”. 34 The Applicant confirms that Ms Metla had given her consent to post the meme to Facebook. The Applicant submits that the Respondent has failed to meet the elements of the sexual harassment offence in their submissions. In respect of this allegation, the Applicant submits there was no valid reason for his dismissal, as there was no harassment in all of the circumstances.

[140] As to use of company property, the Applicant confirms his evidence that he had engaged in the same or similar conduct before, and that he understood it was acceptable to use the imagery in creation of memes, “provided that he sought the consent of the individual subject of the meme”. 35

[141] The Applicant submits that, on the balance of probabilities, the Commission cannot be satisfied that the concerns existed or that they were sufficient to ground a valid reason for his dismissal.

[142] Further, the Applicant reiterated his earlier submission that the Respondent did not afford him a proper opportunity to respond to the allegations against him, because he was not given sufficient time to do so. The Applicant also submits there is no evidence that the Respondent gave genuine consideration to his responses in the disciplinary process, nor was he warned about unsatisfactory performance or warned that he may be dismissed for social media misuse or misuse of company property, prior to the dismissal.

[143] For these reasons, the Applicant maintains that his dismissal was harsh, unjust or unreasonable.

Respondent’s Evidence and Submissions

Statement by Ms Ruby Metla

[144] Ms Metla, Finance and Insurance Officer for the Respondent, filed a witness statement in these proceedings and gave evidence at the hearing. Ms Metla commenced with the Respondent on 4 March 2013 and has remained employed ever since.

[145] Ms Metla states the Applicant was a colleague of hers and commenced with the Respondent one week before her. She says that prior to his departure from the business, she was friends with him outside of work, however since the incident that led to his departure from the workplace, she has made concerted efforts to block Mr Thompson from all social media and she is no longer in contact with him socially.

[146] Ms Metla says that to the best of her knowledge, Mr Thompson has not tried to contact her since his dismissal.

[147] Regarding the incident that led to the Applicant’s dismissal, Ms Metla’s evidence is as follows:

a) Matthew Thompson was making a lot of memes about me, that he was just sending to me only…

b) The memes contained offensive content, that most people would find vulgar, but I did not find them offensive, as I had been friends with Mr Thompson for a long time in the workplace, and I know what his sense of humour is like.

c) He didn’t just make them of me, he also made them about Jo Farlow, a female ex-staffer of our organisation….

f) Prior to posting the offensive meme that I was depicted in on Facebook, Mr Thompson had sent it to me via Facebook Messenger. At that stage, when it was sent just to me, I was not offended by it.

g) Although I was aware that Mr Thompson was using the company intranet to make memes of me and send them to me, at no stage did I specifically consent for him to use the images publicly.

h) The first that I knew that it had actually been posted publicly on social media was when a colleague, Dan Butler tried to call me to advise that he had seen it on Mr Thompson's Facebook page, but I missed the call. Mr Butler's fiancÚ, Amy messaged me at the same time to tell me that she had seen it also, and to ask me if I knew about the meme going up.

i) At first when Mr Thompson posted the meme on Facebook, I didn't mind, however once I realised that the meme was getting shared around, and the extent of the number of people that had viewed the meme and/ or commented or responded to it, or were potentially offended by it, I realised that I wanted him to remove the meme from circulation immediately. It was never my intention for the meme to be circulated so publicly or for as many people to view it as what occurred.

j) I then returned Dan's call and he advised me that he had seen the meme that Mr Thompson had posted of me as well, and he asked me if I was ok. He was trying to ascertain why Mr Thompson would have posted something so offensive so publicly. Mr Butler originally thought that Mr Thompson and I may have had a fight for something so crude to be posted about me like this.

k) After I got off the phone to Dan, I checked my phone and I realised that I'd received a message from our Sales Manager, Mark Payne, asking me if I was ok. In the message, he said that he was sorry for what had happened, and that he was there for me if I wanted to talk and he told me that he was going to take the matter further.

I) Until I'd spoken to Mark, I didn't realise that the matter was as serious as it was, but because Mark was management, and I knew that he had seen it, I messaged Mr Thompson and suggested that maybe he should take the post down because I'd received a few phone calls.

m) Mr Thompson never messaged me back and nor did he take the post down, but he responded by screen-shotting two missed calls from Dan Butler, who by this stage had also contacted Mr Thompson to ask him about the memes.

n) By now, it was about 9:39pm and I still hadn't received a response from Matt Thompson to confirm that he'd taken the meme down, so I tried calling from the Facebook Messenger App to specifically request for him to remove the meme. He never answered me.

o) I then tried messaging him a few times on the messenger app, but the messages were not going through, so I assume that Mr. Thompson blocked me after he had received my message asking him to take the meme down.

p) I have since been advised that (presumably after blocking me), Mr Thompson then texted the meme that I was in to other staff members in the organisation.

q) On 23 June 2020, at 6:17pm, the Tuesday after Mr Thompson had been terminated from the business, Mr Thompson messaged me with a laughing emoji and text that said, "I'll tell you everything in a month or so."

r) After receiving this message, and knowing that Mr Thompson was still spreading memes including me to other staff members, I became concerned about Mr Thompson's intentions and I immediately blocked him off all social media platforms and my mobile phone as well.

s) I have not heard from Mr Thompson since.

[148] Ms Metla states that she was embarrassed and offended by the fact that most of the people that viewed the meme on the Applicant’s Facebook page were either current or previous employees of the business who she deemed to be her friends, however everybody was laughing at it, and of the people who reacted to the meme, nobody had the decency to contact her to see if she was ok. She states she was also embarrassed by the fact that around 10-12 current or former staff members contacted her about this meme, and she felt that it reflected poorly on her that this many people outside of the organisation had seen the meme.

[149] Ms Metla agrees that the content of the meme was of a sexually crude nature, however she says she knows that the Applicant did not post the meme with the deliberate intention of upsetting her. She says that she felt more embarrassed and upset because she felt that everybody was having a laugh at her expense.

[150] Ms Metla’s evidence is that while she did not mind the meme originally being posted, she was offended that the Applicant didn't remove the meme when she asked him to, never responded to her request to remove the meme, and then ultimately just stopped contacting her.

[151] Ms Metla gave evidence that during his employment, the Applicant made many crude and misogynistic comments to her including, “Ruby, you are now the second hottest female in the office,” after a new female started with the business. Ms Metla says that if another female in the office wore a well-fitted item of clothing, or if it was low cut or generally attractive, the Applicant would say to her, “Ruby, you need to step up your game and wear something shorter, or tighter, etc.”

[152] Ms Metla states also that there were a few times when the Applicant said some “deeply personal things of a sexual nature” to her openly on the floor in front of other staff. Ms Metla says that on several occasions, she had asked the Applicant to stop making these sexist and disparaging comments, but he did not. She says that for a time, the commentary about her having slept with another employee (which was fuelled by the Applicant) was so bad that she considered leaving the business. She says she was particularly distressed about these comments because she was currently engaged, and the comments were both untrue and hurtful.

[153] Ms Metla also gave evidence that whenever she spent time in the company of other men in the office, the Applicant would ask her, “Are you fucking him?”

[154] Ms Metla states that she felt she had to change what she wore in the office, to avoid attracting attention. She says that the Applicant would also make comments about her weight or her breasts all the time and would say things like “you used to be more confident”, or “you used to wear tighter clothes”. She recalled the Applicant asking her, in the middle of the floor in front of four people, whether she was wearing spanks, which she says made her so upset that she ran to the bathroom and cried.

[155] Ms Metla states she is unhappy about the fact that the Applicant has never apologised for any of the comments he has made to her, or for the meme and not removing it, or any of the other things he has said, done or insinuated during the course of his employment, “apart from when he was forced to by management on a previous occasion that a complaint was made in relation to his behaviour”.

[156] Ms Metla gives evidence that she has been seeing a psychologist regarding other issues in her life, and through that process has realised how much her mental health has improved since the Applicant left the business. She stated that “Only since receiving professional help and since Mr Thompson has left the business, I have realised that I have been psychologically traumatised by the comments that he has made to me and about me to others.”

[157] At the hearing, Ms Metla’s evidence as to the meme being posted on the Applicant’s Facebook page was as follows:

“Now, I want to take you to that meme that he created about you? Yes.

Now, at the time did you send him the photo that was used in that meme? Yes.

And what was your reasoning behind that? He and I were conversing via Facebook Messenger. He was sending memes to me directly, which I was 100 per cent okay with.

The content of some of those memes were questionable? Yes.

Were they sexist? Yes, but sexually inappropriate.

So it was more around the level of inappropriateness more so than anything else. But at that time you were comfortable with them? Yes.

At what point did you not become comfortable with them? Sorry, let me ask you another question. Was there a point that you became uncomfortable with them? When they were being sent just to me, no, I did not feel uncomfortable at any point, because as you said I have been friends with Matt Thompson for over - well over five years, so I thought, no, but once I was aware that Matt had been let go and he potentially was still making them and could be sending them to other people I work with, then, yes, that's when I - - -

Okay. So did he give you - let me rephrase that, sorry. Did you give him consent at any time to post that meme on Facebook? Yes, I told him - I knew it was being posted up, yes.

So you knew about it and you consented to that? I didn't turn around and say 100 per cent do it, but, yes, I definitely knew about it, yes.

So you knew it was going to be posted on Facebook? Yes, 100 per cent, yes.

And then what happened after that? Matt and I were conversing via Messenger and then I asked him to remove it. I didn't say, "You should remove it", I said, "Hey, maybe please remove the post. I've had a couple of calls."

Okay. So was that more out of concern for him or concern for you at that stage? Me and my job.

So you thought that you were going to get into trouble because this meme was floating around with you on it depicted like this? I felt that a lot of people, majority females would have been offended by the post.

And so why were you concerned that your job might be affected by that? Well, it's not like Matt did it behind my back.

So you were concerned I guess being involved implicitly in this situation? Yes.

Okay. So you then asked him to remove that meme, is that correct? Yes.

Were you aware that that meme was a breach of company policy? No.

You weren't aware of that? No.

Were you aware that back when AHG took over that they had implemented a social media policy? Yes, I did, but at that particular time on that night it hadn't crossed my mind, but afterwards when management contacted me I realised, yes, we actually have a social media policy.” 36

[158] It must be said that this version of events – particularly in relation to her knowledge of publication of the meme – differs from her original recount.

[159] Regarding the workplace culture at the Respondent, Ms Metla said that “it was a fun environment, it was a fun culture. The boys had a lot of banter with all of the staff… A lot of things were allowed. However, from my personal experience with Richard Burgess there was nothing he allowed that was of a sexual nature if he found out about it. He did always address the male if something in front of him had happened.” She acknowledged that the culture had cleaned itself up since AHG and the AP Eagers had taken over.

[160] Ms Metla further stated:

“When you say that there was, was that more towards when it was run by the Burgess brothers, or has it gotten better or worse?---In my personal opinion when the Burgess' were running 360 Finance it wasn't actually that bad.  Once they left we were left without a management structure for quite a long amount of time while they were looking for a general manager.  At that point there was a lot of changes, a lot of staff changes.  The atmosphere dramatically changed.  It did get worse, and then in my opinion after that it stayed bad for a while.

And then it improved once A.P. Eagers took over the business?---Yes, dramatically improved.

….

What do you think it was about A.P. Eagers taking it over that caused it to change?---There was a lot more communication about what is allowed and what isn't allowed.  There was regular updates as well about - refreshers about what is and isn't okay in the workplace, and there was a lot more facilities.  So if somebody actually had an issue there was someone in charge that we could go talk to in a confidential matter.  There was also counselling sessions that were available, and we were encouraged to speak up a lot.

So there was a good cleaner aspect to the culture?---Yes, and I also think we were made clear of punishments with - in the past if you did the wrong thing it was more of a slap on the wrist and everybody would know what you'd done. Once A.P. Eagers was there we did realise that there was a lot of things that wouldn't be tolerated and your employment would be terminated.” 37

[161] As to the Applicant’s behaviour in the workplace, Ms Metla’s evidence is that:

“You make a point that you've asked him to stop that behaviour and he didn't, is that correct? He never did. In fact he got worse. When he realises he was offending me or hurting me he would actually be a hundred times worse and louder.

every single female in 360 current and previous has had one minimum bad relationship with Matthew Thompson. He has offended every single female sexually, inappropriately, and he has made them cry also.” 38

[162] She further stated:

“I have gone to management about Matt before, before A.P. Eagers, nothing happened.  He has been suspended for work for five days as well.  He was apologised - he was asked to apologise.  Nothing changed.  So if I didn't want to lose my job what did you expect me to do.” 39

Statement by Mr Michael Dowling

[163] Mr Michael Dowling, General Manager of the Respondent, filed a witness statement in these proceedings and appeared and gave evidence at the hearing, by telephone. Mr Dowling commenced with the Respondent on 22 August 2016 and has been employed by the business ever since.

[164] Mr Dowling stated that he started with the business as a Financial Controller and on 17 January 2019. He commenced in the role of Acting General Manager, which became his substantive position on 1 July 2019.

[165] Mr Dowling stated that the Applicant reported to the Sales Manager, Mr Mark Payne, who in turn reported to him. Prior to the Applicant’s departure from the business, Mr Dowling described their relationship as strictly professional and one of mutual respect.

[166] Mr Dowling’s evidence was that during his employment with the Respondent, the business had tried to build a culture of mutual respect. He noted that he cared for the Applicant’s health and wellbeing and was aware the Applicant was immunocompromised due to a medical condition. Mr Dowling confirmed the Applicant had been with the Respondent business for over 7 years.

[167] As to the circumstances leading to the Applicant’s dismissal, Mr Dowling’s evidence was that:

“a) At 7:56pm on Wednesday 17 June 2020, I received a text message from Mr Thompson's Manager, Mark Payne that contained a screen shot of Mr Thompson's Facebook page.

b) Upon opening the message, I noticed one picture of Ms. Ruby Metla and one of Matthew Thompson - both of which appeared to have been taken from our company website.

c) The website depicted a meme with a washing machine with suds coming out of it and a photograph of Ms Metla appearing to be asking Mr Thompson, "You pulled out right?" and a second frame of Mr Thompson appearing to say, "Yeah, of course."

d) I could also see from the screen shot, comments from two former staff members of 360 Finance, and there were 8 reactions of either shock and / or laughing, and I noticed that one of the people who reacted with this response is a current staff member.

e) I immediately asked Mr Payne as to whether anybody had spoken to Ms Metla.

f) Mr Payne advised me that Dan Butler has reached out to Ms Metla, and she was ok. I then advised Mr Payne that I was going to email HR in relation to that matter later on that night.

g) The following morning at 9:01am on Thursday 18 June 2020, Mr Payne sent me a further screen shot of Mr Thompson's Facebook page.

h) This time the image depicted a self-taken photograph of Mr Thompson that said, "That moment after you've dropped a meme with the aim to upset some cunts and you get to hear, cunts are upset."

i) As Mr Thompson was stood down from the workplace at the time due to Covid-19, at 9:03, I called Mr Thompson and he didn't answer.

j) At 9:05, I then sent Mr Thompson a text message, which said, "Hi Matt, its Michael Dowling. I just tried to call. I need to invite you to a meeting at 2pm today with Mark and myself to discuss some allegations of serious misconduct. We can do it in person if you wish, or over a phone or video call, and you will be able to bring along a support person if you wish. Please give me a call or send me a text to confirm you have seen this message."

k) Mr Thompson then called me back at around 10am. From the commencement of the phone call, it was clear that Mr Thompson was aware of the reason for my concerns, and we then agreed on that call that he wanted to meet in person to discuss the issue.

l) To provide Mr Thompson with some degree of privacy, and to avoid having to take Mr Payne off the sales floor, it was agreed that Mr Thompson would meet with myself and HR Manager for QLD / NT, Sheree Tarman at our Mt Gravatt office at 2pm that day.

m) At 2pm, Ms Tarman and I interviewed Mr Thompson in relation to the two memes that he had posted.

n) During the interview, Mr Thompson admitted that he was the person who had posted the memes to his Facebook page, but he also maintained at that time that he'd received permission from Ms Metla to post the one that she was depicted in.

o) During that meeting, Ms Tarman asked Mr Thompson whether the memes had been taken down.

p) Mr Thompson said, "No."

q) Ms Tarman then asked Mr Thompson to remove the memes from Facebook, and to the best of my knowledge, Mr Thompson then deleted the images from social media immediately.

r) During the course of the interview, Mr Thompson appeared to be indignant and indifferent as to the extent of his behaviour and its impact on the workplace.

s) After the interview, Ms Tarman and I took a break of about 15-30 minutes to consider all of the evidence, including Mr Thompson's responses.

t) After this break, the parties reconvened and Mr Thompson was advised that on the basis of all of the evidence, myself and Ms Tarman were of the view that his behaviour constituted Serious Misconduct.

u) Mr Thompson, was then verbally advised of the need for him to Show Cause as to why his employment should not be terminated, and we advised that we would put this request in writing to him after the meeting.

v) Ms Tarman later sent through the advice of this request to Mr Thompson's email the same night.

w) In the correspondence, Mr Thompson was requested to provide his response as to why his employment should not be terminated to myself by noon of the Friday, 19 June 2020, and return in person at the same time and place the following day, at 2pm to discuss the outcome of the situation.

x) Mr Thompson appeared at that meeting on time.

y) He confirmed that he had received the Show Cause letter, but that he had not read it. He did not have a written response prepared for the meeting.

z) During the course of the conversation, prior to advising Mr Thompson of the outcome of the matter, Mr Thompson said words to the effect of, "You don't have enough to fire me on this," and "People smarter than us will sort this out in the Courts." He also suggested that he had Ms Metla's consent to post the first meme, and made the insinuation that because he had this, that this, combined with it being on his personal Facebook page meant that we couldn't do anything to him from a disciplinary point of view.

aa) I then advised Mr Thompson that due to the fact that his conduct involved using images from the workplace website and the material was viewed by people from the workplace, that there was a sufficient nexus that could be established to the workplace, and therefore there could be no further way that his employment could be continued.

bb) Once I said this, Mr Thompson went very quiet, and then Ms Tarman confirmed that we were terminating his employment effective immediately, and that he would receive a letter very shortly via email confirming that this was the case.”

[168] Mr Dowling stated that as a demonstration of good faith to the Applicant, he later agreed to meet at the workplace on Sunday, 21 June 2020, to allow the Applicant to return the company's equipment and collect his personal effects in privacy.

[169] Mr Dowling said at no stage did the Applicant appear to be contrite or apologetic in relation to his actions, and the only thing he said in relation to the situation was that, “He wouldn't post those kinds of memes again, because he didn't want to be back here again” (referring to the disciplinary process) and then said, “but then, it could have been worse.”

[170] Mr Dowling acknowledged that the decision to terminate the Applicant’s employment came after he had failed to provide any evidence in relation to the show cause process, and the decision was made by Mr Dowling and his manager, Mr Paul Warburton, Executive General Manager for Eagers Automotive, after receiving advice from Ms Tarman, who had also briefed and sought advice from National IR and ER Advisor, Jacinda Davies.

[171] Mr Dowling stated that after determining the Applicant’s conduct was of a serious nature and was related to the workplace, they established that they had a duty of care to everybody in the workplace, and the Applicant’s actions, if left undisciplined, would set an incorrect perception that the business would tolerate or accept such misogynistic behaviour.

[172] Mr Dowling further submitted that there had been other issues with the Applicant’s behaviour, regarding his conduct towards women in the workplace. He gave evidence regarding the incident in November 2019 as follows.

[173] He recalled that in late November 2019, he received a complaint from a caravan dealership regarding the Applicant’s behaviour on the phone. Mr Dowling said that his view was that, given the Applicant had received a Formal Warning, a demotion, and had to issue a public apology to his team for his unacceptable comments to the Dealer Principal of the Caravan Dealership a little over six months prior to the memes being posted, it was highly unlikely the Applicant’s behaviours would change in the foreseeable future. He stated that he became “quite concerned” at the reality that many of the female staff working for the company may begin to accept that their organisation tolerated, or even encouraged, such unacceptable behaviour, if he allowed the Applicant to remain in the business.

[174] At the hearing, Mr Dowling gave evidence as to steps he had taken to improve the workplace culture at the Respondent, which included the following:

“…I mean, there was quite a lot of work that I and the sales managers had tried to do to, you know, change any culture of, you know, misogyny, sexism, racism, lack of respect, so, you know, with reference to that we had an inclusivity charter that was on the wall of our break room. I held a couple of sessions to instruct people on how that was to be interpreted and to talk about what that meant for our business specifically. We had had conversations about - the disciplinary conversations where there was allegations about misconduct in relation to those sorts of matters. I draw your attention to my statement there where I reference a conversation I had with Mr Thompson in October of the previous year. So, yes, I mean, if there was a culture or if there was an allegation of a culture that that sort of behaviour was allowed or encouraged, I would have severely, you know, taken offence to that because I had worked quite hard to put in place the exact opposite.” 40

[175] Mr Dowling further stated:

“As far as the culture that existed prior to my taking on the post as general manager, it didn't really have a focus I suppose.  There was certainly - you know, if there were allegations of bullying, my predecessor would deal with those.  There would be a process to go through with it and I can think of a couple of immediate examples not involving your client were that did occur, but really what I wanted to do was just to sort of shine a light on it to say, okay, well, we need to agree as a team, as an organisation, that we are going to demonstrate mutual respect to one another and we're actually going to put a concerted effort into this.  So rather than just sort of it being left to chance or being, you know, put out by a (indistinct) as specific allegations, we wanted to make a concerted effort to demonstrate to each other more mutual respect.

What was the concerted effort that you made?  What did you do?---So it was a series of consultations with the staff.  It was, like I said, the diversity and inclusion charter which was developed in consultation with the management team.  We, you know, encouraged a lot of diversity-type events.  For example, lunches on International Women's Day for example and events of that nature.  Again, wherever I was personally exposed to issues on the sales floor where I might happen to be walking past and catching an off-colour remark or a comment, you know, I would, you know, loudly say, "No", and make it, you know, quite clear that I wasn't going to, you know, be accepting that behaviour as an ongoing - - -

Can you think of an example where you did that?---Not off the top of my head, no.  I can remember saying, you know, "No", on a - you know, every, you know, month or so if there was something.  You know, it was just, "No, no, no, no", you know, until the conversation sort of died down, but there wasn't a specific incident I can recall at this point in time.” 41

[176] During cross-examination, Mr Dowling was questioned about the Secret Santa gift given to Mr Samuel, and his evidence was “it wasn't my place to enter into that sort of banter and indeed in the following year when I was the general manger, you know, I did say, "Look, please keep it tasteful", in the instructions for the Secret Santa and that if there was going to be any, you know, off-colour presents that they were, you know, clearly not going to be in a nature that was going to offend, you know, anyone or any group of people.”

[177] As to the disciplinary process followed prior to the dismissal of the Applicant’s employment, his evidence was that:

“…do you believe that Mr Thompson was given every opportunity possible in the disciplinary process to respond to the allegations that you put to him? --- Yes. I mean, we had an initial meeting where the allegations were discussed. We gave Mr Thompson the change to respond. We broke the meeting to, you know, consider options. We went back in, having made a determination, and asked Mr Thompson for a following meeting 24 hours later for a show cause. Cause was not shown, so we were left with no other option but to terminate employment. I fail to see what else we could have done during the process that would have made the process more procedurally fair.

… He indicated to us during the second meeting that he had not read the complaint which (indistinct) had sent to him the previous evening. He had no written response to offer during the second meeting either.

Okay.  You had made it very clear to him that obviously he was encouraged and invited to provide that response?---Absolutely, yes, and we also offered him the ability to bring a support person during the process - both processes, as well, and that was also contained in the documentation that we shared with Mr Thompson prior to the meeting.” 42

[178] During cross-examination, Mr Dowling stated that he had not been aware of any of the Applicant’s conduct alleged by Ms Metla prior to the meme incident.

[179] Mr Dowling further gave evidence that he had not been aware of the Applicant’s previous use of company photos on Facebook posts.

Submissions

[180] The Respondent refutes assertions made by the Applicant that the Respondent business had any tolerance of the behaviours raised in this case or that it had waived its right to terminate the Applicant’s employment.

[181] The Respondent alleges that the picture of Ms Metla that appeared in the Applicant’s first meme was obtained from the Respondent’s website.

[182] The Respondent submits that on 17 June 2020, both memes were seen by a member of the Respondent’s leadership team, Mr Payne, who was immediately concerned with the content of them. As a result, the Applicant was requested to attend a meeting with Mr Payne’s manager, Mr Dowling, and Ms Tarman to discuss the circumstances behind the memes appearing on the Applicant’s Facebook page.

[183] The Respondent submits that the Applicant was afforded the opportunity to obtain a support person prior to the meeting but elected to waive this right.

[184] The Respondent submits that after considering all of the Applicant’s responses provided during the disciplinary process, it came to the reasonable conclusion that the process of the Applicant creating the meme and sending it to Ms Metla was in itself an act of sexual harassment, in accordance with definitions provided within the Anti-Discrimination Act 1991 (Qld) and that the further decision by the Applicant to use material obtained from the Respondent’s own website for his own gratification to undertake this activity constituted a blatant misuse of Company resources and constituted a serious and significant breach of the employer’s trust and confidence in the Applicant.

[185] Further, on further investigation of the matter it was established the Applicant did not have Ms Metla’s consent to publicly disseminate the meme that she was depicted in. It submits that regardless of any real, perceived or otherwise inferred consent that the Applicant thought Ms Metla had given to create or even distribute the meme, the Applicant’s actions were still a clear breach of Company policy. Furthermore, the Respondent submits that contrary to the Applicant’s statement, as the victim of the Applicant’s actions, in a statement made after the Applicant’s termination, Ms Metla has advised that she was quite distressed at the extent to which the meme that she was depicted in was spread around to so many mutual friends and colleagues of hers and the Applicant’s as quickly as it did, particularly as she had not consented to the Applicant’s decision to disseminate the meme publicly beyond themselves in the first instance.

[186] The Respondent relies on Ms Metla’s evidence as to the trauma she states she suffered as a result of the Applicant’s actions in the workplace, which the Respondent states it was not aware of until after the Applicant was dismissed.

[187] The Respondent relies also on the evidence of Mr Dowling regarding the events of November 2019, for which the Applicant received a Formal Warning in relation to his behaviour and forced to issue a public apology.

[188] As to the memes posted, the Respondent submits that in posting the subsequent meme referring to “cunts being upset”, being a reference to the Applicant’s colleagues, this is a clear demonstration from the Applicant of a “wilful intention to deliberately cause distress to either Ms Metla or his colleagues through the posting of the memes”.

[189] The Respondent submits that after the meeting with the Applicant on 17 June 2020, the Applicant was provided a letter inviting him to show cause as to why he should not be dismissed based on the facts as already established, taking into account the Applicant’s “full and frank admissions and disclosures of his actions” and the Applicant’s perceived lack of remorse in relation to his conduct.

[190] The Respondent submits that the Applicant was requested to attend a meeting on 18 June 2020 to discuss his response and that at this meeting the Applicant advised the Respondent that:

“a) He didn’t even open his Show Cause letter;

b) He would not be providing a written response to the Respondent’s intention to terminate his employment; and

c) That he did not believe that his actions warranted termination for a post of a “funny meme” on his personal Facebook page.

d) The Applicant also noted his length of tenure with the organisation and his performance with the business as a Finance Officer.”

[191] The Respondent submits that as the Applicant elected not to provide a written response to his show cause notification, the Respondent was only able to consider the verbal submissions provided by the Applicant in conjunction with the known facts in considering whether to terminate his employment.

[192] The Respondent submits that it carefully considered the full facts of the matter, including:

a) the Applicant’s verbal submissions;

b) a thorough review of the conduct that had been demonstrated by the Applicant (both previously and most recently);

c) the nexus of the previous sexually discriminative behaviour to the current sexually discriminative behaviour;

d) the relative recentness between the two instances of related, concerning behaviour by the Applicant;

e) the overall seriousness of the current matter to hand; and

f) the Applicant’s apparent total lack of contrition and remorse with regard to his actions.

[193] The Respondent reasoned that:

a) the Applicant had been provided with copies of the Respondent’s social media and sexual harassment policies and received training by Mr Mick Rudd, when AHG took over the ownership of the Respondent;

b) clause 6.1(d) of the Applicant’s employment contract sufficiently warned the Applicant that failure to comply with the Respondent’s policies may result in disciplinary action, up to and including dismissal.

c) the Applicant should have been well aware of the Company’s zero-tolerance policy on sexual harassment from his previous disciplinary matter that occurred only seven months prior;

d) the Applicant’s actions constituted a serious breach of its social media and sexual harassment policies, as well as Commonwealth and State-based anti-discrimination and sexual harassment legislation;

c) the Applicant’s actions constituted a repudiation of his employment contract, specifically clause 5.2, parts (c)-(f) and (h) and 6.1(a);

f) there was an inherent risk that the Respondent could be publicly brought into disrepute by the Applicant’s conduct on social media;

h) accordingly, the Respondent had lost trust and confidence in the Applicant and could not expect that the behaviour would not continue to be an ongoing concern given the Applicant’s previous non-compliance with its sexual harassment policy, and his communicated view that this matter did not warrant disciplinary action; and

i) the Respondent remained fundamentally concerned that a decision not to dismiss the Applicant may portray to Ms Metla, other staff and the general public at large that the Respondent sanctioned, or endorsed or encouraged the Applicant’s behaviour.

[194] The Respondent submits that after consideration of all of the circumstances, and after receiving advice from Ms Tarman and the National ER & IR Advisor, on 19 June 2020, the decision was made to terminate the Applicant’s employment effective immediately on the grounds of serious misconduct.

Valid reason

[195] The Respondent agrees with the Applicant’s position that considerable assistance can be derived in this matter from the established principles as to the assessment of ‘valid reason’.

[196] The Respondent submits that as to the application of the principles in Byrne v Australian Airline, the Applicant’s dismissal was not harsh, unjust or unreasonable having regard to all of the circumstances of the matter.

[197] The Respondent notes that the Applicant has cited IGA Distribution v Nguyen in which the Full Bench refers to the ‘gravity of the conduct’. The Respondent submits that the Applicant’s conduct constitutes a very grave and serious breach of the Sex Discrimination Act 1984 (Cth) and the Anti-Discrimination Act 1991 (Qld) and submits that the breach of these two key pieces of legislation alone should provide sufficient weight as to the seriousness of the Applicant’s actions. The Respondent makes specific reference to s.28A ‘meaning of sexual harassment’ and ss.105 and 106 of the Sex Discrimination Act. With reference to s.106, which relates to vicarious liability, the Respondent stated its concerns that it is vicariously liable for actions that could constitute sexual harassment in the workplace, if it does not take reasonable steps or actions to prevent such behaviour. The Respondent submits that termination of the Applicant’s employment was a requirement to discharge of its responsibility in accordance with the Sex Discrimination Act.

[198] The Respondent also refers to ss.118, sexual harassment, and 119, meaning of sexual harassment, under the Anti-Discrimination Act.

[199] The Respondent submits that on application of the Briginshaw principle, and in light of the matters raised above, the Commission should find that, on the balance of probability, the Applicant’s creation of a meme depicting Ms Metla constituted conduct that is at least considered to be unlawful and constitutes of an act of sexual harassment.

[200] Further the Respondent rejects and refutes the Applicant’s submission that the cultural norm of the organisation permitted or condoned his actions in any way. In rejecting the Applicant’s submission that his behaviour was supported by the workplace culture, the Respondent relies on the following:

a) the Respondent has a robust sexual harassment policy and social media policy, which were both in place prior to the Applicant’s termination and “rigorously” enforced across the Respondent’s national operations;

b) the Applicant had been provided with copies of these policies – and training – following the transition of the Respondent’s owners;

c) the Applicant had been informally reminded of these policies on various occasions throughout his employment;

d) the Respondent does not condone or accept sexual harassment at any of its sites and, as evidence of that, pointed to five other staff across Queensland and Northern Territory alone having been dismissed due to substantiated allegations of sexual harassment in the last two years.

[201] The Respondent submits that the disciplinary outcomes the Applicant was subject to in November 2019, in conjunction with the Formal Warning should have made it clear that any misogynistic or sexually harassing behaviour was not tolerated by the Respondent. The Respondent also relied on Ms Metla’s statement, to the effect that she has noticed an improvement in the workplace culture since the Applicant left the business.

[202] The Respondent submits that a lawful requirement not to discriminate against, or harass, any person in a workplace is of far greater importance and significance than the Applicant’s perception around the culture of the organisation or the cultural norms within an organisation.

[203] The Respondent submits that while the Applicant relies on the ‘hands-off’ management style of the previous owners of the business, upon the Respondent’s takeover, clear expectations were set by management to all staff in the business, including expected behavioural standards.

Opportunity to respond

[204] The Respondent submits that the Applicant failed to identify any specific areas of the disciplinary process in which the Applicant was not afforded procedural fairness or the opportunity to respond.

[205] The Respondent asserts that throughout any disciplinary process, the Applicant was advised of his right, or provided the right to have a support person present, respond to the allegations put to him and address the Respondent’s intentions to terminate his employment

[206] It submits that the Applicant waived his right to have a support person present throughout the process, despite that being offered prior to every meeting or discussion. As to verbal responses by the Applicant, the Respondent submits that the majority were either admissions of guilt, or admissions against self-interest and “portrayed a blasÚ lack of understanding, empathy or concern towards the Respondent’s contentions”.

[207] The Respondent submits the Applicant was provided an opportunity to say anything further at the end of the initial meeting and at the start of the show cause meeting. The Respondent rejects any submission by the Applicant that any response provided by him during the disciplinary process was not considered by the Respondent prior to the decision being made to terminate his employment.

[208] Further the Respondent notes the Applicant failed to even open the show cause letter that outlined the Respondent’s concerns and possible outcome of terminating the Applicant’s employment or provide a written response despite having been invited to do so.

Size of the employer

[209] The Respondent refutes the Applicant’s assertions that the disciplinary process was flawed or that the size of the organisation in any way affected or hampered the ability of the Respondent to provide a suitable, fair and transparent disciplinary process to the Applicant.

Any other relevant matters

[210] As to the matters raised by the Applicant, including his inability to find work, his medical conditions known to the Respondent and the emotional and financial stress incurred as a result of his dismissal, the Respondent made the following submissions.

[211] The Respondent acknowledges the Applicant’s considerable length of tenure and the impact any decision to terminate his employment would have on him. It submits therefore, its decision to terminate the Applicant’s employment was not a decision that was taken lightly or made without serious consideration being given to all of the facts in the matter, including the effect that this decision would have on the Applicant, the Respondent and those affected by the Applicant’s behaviour.

[212] However, the Respondent maintains that termination of the Applicant’s employment was the only acceptable option available to it, based on the seriousness of the Applicant’s behaviour.

[213] Further it submits that given the seriousness of the behaviour, and the effect it had on Ms Metla, the relationship between the Applicant and Respondent was irreparably damaged. The Respondent was aware of further offensive memes about the Respondent being posted by the Applicant on his social media page even after his termination. It annexed some of these memes to its submissions in these proceedings. 43

[214] The Respondent maintains that the severity of the Applicant’s actions, coupled with the Applicant’s continued justification of his treatment of Ms Metla in the workplace, his complete lack of contrition and the offensive memes posted by the Applicant after his termination would prevent the Respondent from being able to consider a re-commencement of an employment relationship between the Applicant and the Respondent in the foreseeable future. It submits that no compensation should be payable as the Applicant’s dismissal was fair and reasonable under the circumstances.

Closing submissions

[215] In closing submissions, the Respondent maintained that the Applicant’s posting of the memes on 17 June 2020 and his failure to remove the first meme until being directed to do so on 18 June 2020, constituted a valid reason for dismissal.

[216] The Respondent submits that posting the first meme constituted serious misconduct, which was then compounded by the Applicant’s subsequent conduct.

[217] The Respondent submits that a person viewing the first meme would understand it to refer to a conversation of a sexual nature at the conclusion of sexual intercourse between the Applicant and his colleague. The Respondent submits that the Applicant used corporate images of himself and Ms Metla, professionally taken in-house for use on the Respondent’s website, and the Applicant was connected or ‘friends’ on his social media with several current and former employees of the Respondent.

[218] In respect of the Applicant’s posting of the second meme, the Respondent refers to Ms Metla’s evidence that she thought the second meme was directed at her and the Respondent’s management personell. 44 The Respondent submits that while the Applicant gave sworn evidence that the meme was directed at Mr Daniel Butler and Ms Amy Fernandez, Mr Butler was an employee of the Respondent at the time and the Applicant’s evidence raises a question of whether the meme was posted due to ‘friendship’ or a strained relationship with Mr Butler. The Respondent cites the following extract from the Transcript:

“I wasn’t talking with Daniel at the time and the point of putting it up was that Daniel and Amy would get upset because they knew Ruby wasn’t on there, and me and Ruby had discussed that at length, different things that Daniel was doing that had been annoying us, and we didn’t want to – she didn’t want to be his friend anymore, rah, rah. So it got to the point where we said “I’m going to post this and we’ll see what happens with that”.” 45

[219] While the Applicant’s reply submissions provide that he did not intend to cause distress to either Ms Metla or his colleagues through posting the meme, the Respondent submits the Applicant knew both memes were likely to be offensive and/or upsetting to, at a minimum, Mr Butler who was a fellow employee and that the Applicant ought to have reasonably known that the First Meme, with its sexual connotations had the likelihood to be viewed by, and to cause offense to, other colleagues with whom he was friends with on Facebook and would cause serious concern to the Respondent.

[220] Further, the Respondent submits that the Applicant chose not to remove the post even though he was informed that the first meme had caused a reaction such that Ms Metla had repeatedly suggested that the post be removed. The Respondent submits the Applicant only removed the post once directed to at the allegation response meeting; and this is despite the Applicant being fully aware of the need to discuss the allegations of serious misconduct, and the reason for Mr Dowling’s concerns.

[221] The Respondent notes that the Applicant has relied on Ms Metla’s consent to posting the meme, the culture of the Respondent and the Respondent failing to have regard to what the Applicant would do if placed in such a circumstance in the future. Further, the Applicant has submitted that in the past he has been issued ‘final warnings’ for inappropriate behaviour and has not been terminated.

[222] The Respondent does not dispute that it is open to the Commission to consider the Respondent’s decision to terminate the Applicant’s employment in the context of the historical workplace culture. However, it submits that the culture journey of the workplace under the new owners is equally relevant. Further it argues that an employer’s ability to take firm and necessary disciplinary action to protect other employees from future inappropriate images should not be categorised as ‘waived’, particularly where the cultural concerns are historical and there is evidence to show that the employer had taken positive steps to shift the workplace culture and set expectations of appropriate behaviour with its employees, including the Applicant.

[223] As to evidence given by Mr Samuel, the Respondent did not deny that Mr Samuel provided evidence that indicates the culture of the Respondent is not “that of a ‘convent’”, and under the control of the Burgess Brothers was not ideal. However, the Respondent submits that the Commission should have regard to the recent case of Michael Lyle Jones v Karisma Joinery Pty Ltd46 where Commissioner Cambridge stated:

“[36]… In workplace such as factories and construction sites there is generally a robust level of verbal communication between individuals that would not ordinarily be tolerated in other more genteel workplace settings. The language used by the applicant, other workers, and his supervisors would regularly involve some aggressive exchanges including the use of profanity and insult. However, there are circumstances where it comes clear that despite the generally acceptable level of aggression and insult that might be part of regular robust exchanges, a line has been crossed”.

[224] The Respondent submits that even if the Commission finds that the sales environment is a workplace that typically tolerates a more robust workplace culture, the line was still crossed by the Applicant on 17 June 2020. The Respondent submits that in posting the first meme to his Facebook page, being a ‘public arena’, the Applicant’s conduct went beyond the bounds of any alleged robust workplace culture and “brought into play the ordinary and reasonable societal and cultural norms”. It also brought significant risk of reputational damage to the Respondent’s brand. The Respondent submits, as above, that this action was compounded by the second meme and the Applicant’s delayed removal.

[225] The Respondent confirms steps taken in the ‘gradual shift’ in culture at the Respondent as including the introduction of policies outlining standards of behaviour, the provision of training to staff (including the Applicant), managers providing email correspondence to employees making it clear which conduct is inappropriate in the workplace and taking serious disciplinary action in circumstances where sexual harassment allegations were substantiated.

[226] The Respondent submits that Mr Dowling gave evidence as to specific actions taken by him to shift the culture and further that the evidence of Mr Samuel and Ms Metla speak to the shift in culture that occurred from the ownership of the Burgess Brothers to AHG’s ownership to Eagers Automotive’s ownership. 47

[227] As to the cross-examination of Ms Metla, the Respondent submits that the Applicant sought to bring into question the accuracy of Ms Metla’s statement, and bring into evidence a number of ‘personal exchanges’ that had historically occurred between the two of them. As to the bundle of documents tendered by the Applicant’s representative during Ms Metla’s cross-examination, the Respondent submits that these should reasonably have been included in the material filed by the Applicant particularly in light of the Applicant’s opportunity to file evidence in reply. Further, the Respondent submits the bundle contained ‘extracts’ only, and the Commission should give limited weight to the material as it lacks full context.

[228] As to the Commission making any conclusion that there were inaccuracies in Ms Metla’s statement, and that the Applicant and Ms Metla had a ‘unique relationship’, the Respondent submits this should not impede the Commission’s ability to determine whether the Respondent had a valid reason to terminate the Applicant’s employment. The Respondent notes that Mr Dowling was the decision maker and his evidence is that Ms Metla’s consent to the meme being posted did not in his mind affect the categorisation of the conduct as serious misconduct.

Applicant’s past conduct and intersection with evidence of cultural shift

[229] In response to the suggestion that the Respondent’s failure to conclude the Applicant’s past conduct amounted to serious misconduct precluded it from reaching that conclusion in relation to the memes, the Respondent pointed to Jones v Karisma Joinery, in which the Commission noted that “the employer appeared to tolerate a level of disagreeable behaviour that appeared to be a general reflection of the applicant’s personality”. 48 The Respondent submitted that the historical tolerance was not fatal in that case to a finding that the Applicant’s behaviour ‘crossed the line’.

[230] The Respondent submits in respect of the third warning issued to the Applicant:

(a) the Applicant’s conduct on the telephone call in or around November 2019 was in no way acceptable to the Respondent under Mr Dowling’s management, which resulted in the serious outcome of a disciplinary warning being issued;

(b) despite a serious disciplinary outcome, the Applicant maintains that his behaviour then was acceptable at the Respondent and the industry, and that his conduct was not inappropriate or unjustified;

(c) the Applicant’s fixed attitude regarding his conduct on the phone call is representative of his attitude towards the culture at the Respondent and his failure to acknowledge the changing culture and expectations around him (the evolution of which is supported by Mr Samuel’s and Ms Metla’s evidence);

(d) that remains the case, despite the Applicant’s acknowledgment in his oral evidence of some changes in culture, which he attributed to the change to the COVID environment; and

(e) most of the examples of a dysfunctional or ‘coal mine’ culture provided by the Applicant were under the management of the Burgess Brothers. 49

[231] The Respondent further submits that given the passage of time and change of ownership, the Respondent should not be criticised for issuing multiple final warnings to the Applicant during the course of his employment.

[232] The Respondent also submits that the Applicant has “sought to distract from his own conduct by raising alleged conduct or examples of dysfunctional culture that were historical and were not contained in either of his statements or written submissions prior to the hearing”. In this regard, the Respondent refers to the ‘KFC Secret Santa gift’, an alleged ‘dog food’ comment and a Snapchat of Mr Catlin ‘windmilling his penis’. However, the Respondent confirms that action was being continuously taken to shift the culture of the business from the time of the Burgess Brother’s ownership. It submits its employees have been aware of the shift of expectations and relies on the evidence of Mr Dowling. 50

[233] The Respondent submits that a finding that it could not take serious disciplinary action in response to the Applicant’s “grossly inappropriate conduct” would be ill-conceived and overlooks the obligations of an employer to take steps to safeguard the health and safety of its employees. The Respondent also notes that the Applicant signed the written warning of 27 November 2019 and acknowledged in his second statement in these proceedings that he received training regarding workplace behaviour from AHG.

[234] The Respondent maintains that the disciplinary process was procedurally fair, that the Applicant was afforded the opportunity to respond to allegations put to him and that his responses were fully considered prior to findings being determined. The Respondent submits the Applicant was provided a further opportunity to show cause as to why his employment should not be terminated and his responses were again fully considered prior to a final decision being made. The Respondent submits the Applicant was provided the opportunity to have a support person present for both meetings.

[235] As to the time between the conclusion of the allegation response meeting on 18 June 2020 and findings being made, the Respondent submits that due to:

“(a) the Applicant admitting that he posted the First and Second Memes; and

(b) his indifference as to the inappropriateness of his behaviour and connection to the workplace,

it was not unreasonable for the Respondent to have made factual findings within a short timeframe and conclude that the substantiated conduct amounted to serious misconduct requiring the Applicant to show cause”. 51

[236] The Respondent notes the Applicant has also criticised the timing afforded to him to provide his show cause response. In this regard, the Respondent submits the time afforded was not unreasonable given:

“(a) the Applicant’s indifference in the allegation response meeting which was maintained through the show cause process; and

(b) The following evidence provided by Mr Dowling:

Given the fact that we had advised Mr Thompson what was going to happen the following day and given the fact that he turned up with no preparation, having not opened the letter, read the letter, prepare any sort of response, seemed to indicate to me that we could have given Mr Thompson a week and we would have got the same outcome in terms of a lack of ---

When you say that there is nothing that could have been done to make the process fairer, you don’t think giving Mr Thompson a further period of time to respond to the proposed termination of his employment would have made the process fairer? --- That was not – if Mr Thompson had requested additional time, I would have been happy to grant it to him, but he did not. We were very clear on what the process was going to be.

Now, I put it to you that there was nothing that Mr Thompson could have said that was going to make a difference to your decision at that second meeting. You had already resolved to terminate? --- With all due respect we may never know, because he didn’t put anything to us”. 52

[237] The Respondent refers to the Applicant’s response that he ‘wouldn’t post it again’ if it had meant that he would be in a similar situation, and submits that this falls short of “any sense of remorse of an appreciation as to the seriousness of the conduct engaged in”.

[238] As to the Applicant’s medical condition and any affect it might have on his ability to secure alternative employment in the future, the Respondent notes that the Applicant did not raise this as part of his response during the disciplinary process, in any of his written material or in oral evidence. Nor has he produced any medical evidence to support this contention.

[239] Therefore, the Respondent submits this is not a matter that should be considered in determining the reasonableness of the Respondent’s decision to terminate the Applicant’s employment.

[240] As to the other criteria under s.387 of the Act, the Respondent relies on its earlier submissions.

[241] In its closing submissions in reply, the Respondent confirmed its earlier submissions, with the addition of one point regarding Ms Sheree Tarman to the effect that Mr Dowling was the sole decision-maker regarding the Applicant’s ongoing employment with the Respondent and while Ms Tarman supported Mr Dowling throughout the investigation and decision-making process, she was not a decision-maker as the Applicant has asserted. The Respondent submits therefore it is the evidence of Mr Dowling, and not Ms Tarman, that is central to this case.

[242] Further, the Respondent disagreed with submissions by the Applicant that there is little evidence of a change to culture within the workplace, and the Respondent again relies here on the evidence of Ms Metla, Mr Samuel and Mr Dowling in this regard.

[243] The Respondent maintains that reinstatement would not be appropriate in this case.

CONSIDERATION

Was the dismissal harsh, unjust or unreasonable?

[244] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

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

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

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

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

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

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

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

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

[245] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 53

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

What constitutes a valid reason?

[246] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 54 and should not be “capricious, fanciful, spiteful or prejudiced.”55 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.56

[247] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination:57

“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.”

[248] In a recent decision of Deputy President Asbury, her Honour summarised the following: 58

“[11] Where the reason for the dismissal is misconduct, the Commission must be objectively satisfied that the misconduct occurred. However, as Vice President Hatcher observed in Bista v Glad Group Pty Ltd, the case law does not establish that a minor failing on the part of an employee could constitute a valid reason for dismissal simply because it was proven to have occurred. Dismissal on such a basis could not be sound, defensible or well founded. His Honour also cited the majority judgement of Moore J in Edwards v Giudice where it was held that:

The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee may elect to contest the termination in the arbitration on the basis that the conduct took place but it did not provide a valid reason and perhaps by relying on the other grounds in [the section].

[12] That judgement was relied on by Vice President Hatcher as authority for the proposition that, the consideration of whether there is a valid reason for dismissal requires, where the relevant conduct upon which the dismissal is proceeded is found to have occurred, an assessment of whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response to the conduct.

[13] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:

Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.”

[249] While the three criteria above each have a unique ambit, they have the propensity to intersect in practice. Byrne v Australian Airlines elaborates on this overlap and distinguishes the three grounds stated above: 59

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[250] The nature of the Applicant’s conduct which resulted in his dismissal was largely uncontested between the parties. What was in dispute was whether that conduct warranted the termination of the Applicant’s employment.

[251] For the reasons set out below, I am satisfied that the Applicant’s posting of the first meme, coupled with his (arguably, retaliatory) posting of the second meme, constituted serious misconduct.

[252] I accept that the culture at the Respondent’s business fell considerably short of the standards expected of a workplace and that there were imperfections with the Respondent’s process insofar as multiple ‘final’ warnings were provided which may have caused some opacity in the mind of the Applicant as to the consequences of his conduct. It must be noted though that some of that management action occurred under the previous owners. The new owners gave their employees training in respect of its policies and procedures and the evidence before me suggested that steps were being taken to improve the workplace culture, though based on some of the evidence given there was still a considerable way to go. Their actions in this matter are consistent with a reforming workplace.

[253] I accept Ms Metla’s evidence from cross-examination which was that she was aware that the meme was to be posted. I also accept that Ms Metla’s evidence of the publication and impact of the meme may be coloured by subsequent events and embarrassment and that it should have been reasonably foreseeable to both her and the Applicant that if the meme was published to Facebook it would be viewed by others.

[254] However, I do not accept the Applicant’s assertion that viewed against that backdrop his behaviour was not inappropriate or, at the very least, not serious enough to warrant his dismissal. His conduct was plainly inappropriate, if not also unlawful.

[255] The Applicant’s lack of insight or remorse was consistent throughout the proceedings. He refused to provide a written response to the show cause letter and then maintained throughout the disciplinary process and post-termination that his conduct did not warrant dismissal. Even in his closing submissions, the Applicant submitted that the behaviour could not be considered “inconsistent with the continuation of the contract of employment”, particularly in light of the Respondent’s acceptance offensive and inappropriate behaviour by its employees (including him) in the past.

[256] The Applicant also sought to compare his conduct with that of Mr Dowling allegedly yelling and swearing at staff in a meeting. Though the conduct he alleges that Mr Dowling engaged in, if substantiated, would also likely fall short of the ordinary standards of civility one expects in a modern workplace, that conduct is considerably different in nature to the Applicant’s behaviour. Indeed, the drawing of the comparison reveals the Applicant’s lack of understanding as to why his own conduct was inappropriate. The underlying issue with the Applicant’s conduct is the sexually explicit and public nature of posting the first meme to social media and the reasonably foreseeable consequences that action might have. None of the material or submissions made by the Applicant evidence a proper understanding of the significance of his actions and their effect.

[257] I am satisfied that even if the sales environment is a workplace that typically tolerates a more “robust” workplace culture, the Applicant’s conduct was still sufficiently serious and inappropriate so as to constitute a valid reason to terminate the Applicant’s employment.

Was the Applicant notified of the valid reason?

[258] I am satisfied that the Applicant was notified of the valid reason in the letters from the Respondent on 18 and 19 June 2020.

Was the Applicant given an opportunity to respond to any valid reason?

[259] The Applicant pointed to a number of perceived flaws in the disciplinary process. He submitted that Ms Tarman did not listen to his responses during the disciplinary meetings. The Respondent submits that the Applicant was afforded an opportunity to respond to the allegations. Based on the evidence before me, I accept that the Applicant was offered the opportunity to respond to the allegations. In fact, he admitted to the conduct but consistently refuted its severity or significance.

[260] As to Ms Tarman’s involvement, it was her role to assist in the process in her capacity as a human resources representative. However, it was Mr Dowling who was the relevant decision-maker regarding the Applicant’s ongoing employment and accordingly it is his actions and decision-making process that must be considered paramount. Even if, in the Applicant’s view, he had not been afforded the opportunity to be properly heard by Ms Tarman, he could have remedied that by responding in writing to the show cause letter. He chose not to avail himself of that opportunity.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[261] The Applicant submits that he was not warned about his performance prior to the dismissal taking effect. That is plainly not the case. He was issued with a number of warnings about his conduct in the workplace over the preceding years. While the conduct that was the subject of those warnings was not identical to the present case, in at least of one of those warnings the Applicant was specifically referred to the relevant policies.

Size of the Respondent’s Enterprise (s.387(f)) and Presence of a Human Resource Specialist (s.387(g))

[262] It is not in dispute that the Respondent has dedicated human resource personnel.

What other matters are relevant?

[263] I accept that the Applicant had worked at the Respondent for several years and that he has had difficulty finding work since. I do not accept that those factors should be determinative in this matter.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[264] I have made findings in relation to each of the criteria in s.387 of the Act, as relevant.

[265] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 60

[266] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was neither harsh and unjust. The Applicant’s conduct plainly gave rise to a valid reason for dismissal and the Respondent conducted a fair and reasonable disciplinary process before finally concluding that dismissal was appropriate.

[267] I order that the Applicant’s application be dismissed.

Title: Lake DP - Description: Seal of the Fair Work Commission with member's signature

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR729610>

 1   Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender [2021] FWCFB 268.

 2   Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618 at [19].

 3   Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender [2021] FWCFB 268 at [48].

4 Transcript at PN329.

 5   Transcript at PN296-302.

 6   Transcript at PN213-215.

 7   Applicant’s reply statement at MT-2.

 8   Applicant’s witness statement, Annexure ‘MT-3’.

 9   Transcript at PN153-156.

 10   Transcript at PN399.

 11   Transcript at PN403.

 12   Transcript at PN409.

 13   Transcript at PN415-418.

 14   Transcript at PN429.

 15   Transcript at PN449.

 16   Transcript at PN443.

 17   (1995) 185 CLR 410, 465-468 per McHugh and Gummow JJ.

 18   (1995) 62 IR 371 at [373].

 19   [1999] FCA 1836 at [7].

 20   [2011] FWAFB 4070 [14].

 21   [1998] FCA 865.

 22   IRCA, unreported, 20 December 1996, Wilcox CJ, in the Industrial Relations Court of Australia.

 23   [2010] FWA 883 [41].

 24   Wakim v Bluestar Global Logistics [2016] FWC 6992 at [32].

 25   Applicant’s Reply Submissions, at [16].

 26   Applicant’s Closing Submissions, at [16].

 27   Applicant’s Closing Submissions, at [39]; the Applicant cites the Transcript at PN448-449.

 28   Applicant’s Closing Submissions, at [42]; the Applicant cites the Transcript at PN461-464.

 29   Applicant’s Closing Submissions, at [50].

 30   Applicant’s Closing Submissions, at [28]; the Applicant cites the Transcript at PN173.

 31   Applicant’s Closing Submissions, at [54].

 32   Ibid at [56].

 33   Applicant’s Closing Submissions, at [67]; the Applicant cites the Transcript at PN1117, PN1122.

 34   Applicant’s Closing Submissions, at [79].

 35   Ibid at [83].

 36   Transcript at PN502-527.

 37   Transcript at PN546-549.

 38   Transcript at PN564-568.

 39   Transcript at PN598.

 40   Transcript at PN1032.

 41   Transcript at PN1055-1057.

 42   Transcript at PN1033-1035.

 43   Respondent’s submissions, Annexure M.

 44   Respondent’s Closing Submissions at [15]; the Respondent cites the Transcript at PN670-672.

 45   Transcript at PN338.

 46   [2020] FWC 5051.

 47   The Respondent cites the Transcript at PN339-441; PN542, 551, 950-951; PN1021, 1025-1027, 1032, 1090-1094; PN1055-1057.

 48   [2020] FWC 5051 at [35].

 49   Respondent’s Closing Submissions, at [49].

 50   The Respondent cites the Transcript at PN1026-1027; PN1090-1094.

 51   Respondent’s Closing Submissions at [59].

 52   Respondent’s Closing Submissions at [60]; the Respondent cites the Transcript at PN1144-1146.

 53   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

 54   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 55   Ibid.

 56   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

57 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]. See also Edwards v Justice Giudice [1999] FCA 1836, [7].

 58   Mr Stanley Sully v CBMG North Pty Ltd [2020] FWC 3509, [11]-[13].

 59   Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465 (McHugh and Gummow JJ) (Byrne).

 60   ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].