DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Bridge
v
Globe Bottleshops Pty Ltd T/A Wellington Beer Wine and Spirits
(U2021/2534)

Application for an unfair dismissal remedy.

[1] On 26 March 2021, Mr David Bridge (the Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Globe Bottle Shops Pty Ltd.

[2] During a mention/directions hearing before me on 21 April 2021, and in subsequent correspondence between the Commission and the Respondent on 22 April 2021, it was confirmed that the Respondent’s correct legal name was Globe Bottleshops Pty Ltd T/A Wellington Beer Wine and Spirits (Globe Bottleshops, the Respondent). I have utilised the discretion in s.586 of the Act to amend Mr Bridge’s application accordingly.

[3] Mr Bridge was dismissed from his employment on 19 March 2021 at the initiative of the employer for serious misconduct. The dismissal took effect immediately. Mr Bridge submits his dismissal was unfair and seeks compensation for his dismissal.

[4] Globe Bottleshops submits it dismissed Mr Bridge for serious misconduct, for what it contends were comments of a sexual nature made to a customer on 11 March 2021.

Procedural Background

[5] The matter was the subject of a conciliation conference on 19 April 2021, however, the matter was not resolved. The matter was subsequently listed for hearing before me on 4 June 2021.

[6] At the hearing Mr Bridge was unrepresented and gave evidence on his own behalf. Ms Susan Dale, customer, also gave evidence. Globe Bottleshops was represented by Ms Allison Park of the Tasmanian Hospitality Association (THA). Mr Frank Morgan, Director, and Ms Shannon Greer, customer, gave evidence on behalf of Globe Bottleshops.

Statutory Framework

[7] Section 396 of the Act requires that I decide four matters before considering the merits of Mr Bridge’s application. I find that Mr Bridge’s application was made within the 21-day period prescribed by s.394(2) of the Act. Globe Bottleshops is not a Small Business employer within the meaning of the Act, therefore the Small Business Fair Dismissal Code does not apply. The dismissal was not a case of genuine redundancy.

[8] During his employment with Globe Bottleshops, Mr Bridge was covered by the Hospitality Industry (General) Award. 1 He earned less than the high-income threshold and had completed a period of employment with Globe Bottleshops that was at least the minimum employment period required by s.382 of the Act. I am satisfied that Mr Bridge is a person protected from unfair dismissal.

Case presented

[9] At the time of Mr Bridge’s dismissal, he worked at Globe Bottleshops as a full-time Manager, and had performed that role since commencing employment with the Respondent on 3 August 2015.

[10] On 15 March 2021, Globe Bottleshops received notification of a complaint made by a female customer alleging she had been sexually harassed. Mr Morgan sent an email to Mr Bridge detailing the allegations made by the customer and stood him down immediately on full pay pending the outcome of an investigation into the matter. The allegation was that Mr Bridge had said to a female customer ‘would you like a root hehehe receipt’ and laughed and leered at her in an attempt to make her feel uncomfortable, and that, on each occasion she has regularly visited the store, he had spoken rudely to her and made her feel uncomfortable. Mr Bridge was requested to provide a response to the allegation by no later than 9:00am on 17 March 2021.

[11] On 17 March 2021, after receiving what it says was an initial uninformative response from Mr Bridge, a further email was sent to Mr Bridge by Ms Park on behalf of the Respondent providing him with the date and time of the alleged incident and giving him a further 48 hours to provide a written response to the customer’s allegation. He was advised that at the expiration of the 48 hours (being midday 19 March 2021) Mr Morgan would be making a decision as to the outcome of the investigation. Globe Bottleshops did not provide the customer’s name, submitting it was withheld for safety and security reasons at the customer’s request.

[12] Globe Bottleshops submit it conducted an investigation that involved, but was not limited to, interviewing the customer, consideration of a number of related previous customer complaints some of which it submits resulted in formal warnings to Mr Bridge, discussions with and amongst Mr Morgan and Mr Andrew Quarry. On 19 March 2020, following the finalisation of the investigation, Mr Bridge was advised they were satisfied he had breached his duty of care obligations and his employment was terminated for serious misconduct, effective immediately.

[13] Globe Bottleshops submits the matters outlined in [10] above provided sufficient evidence that the employment relationship had broken down and there was no longer trust in Mr Bridge to maintain and uphold a safe place for the business’ customers. It submits that all things considered, it was not satisfied with Mr Bridge’s response that he had no recollection of the alleged inappropriate conversation with the customer. It says the dismissal was not harsh, unjust or unreasonable by way of the process afforded to Mr Bridge and the considerations had taken into account Mr Bridge’s behaviour, with many and varied customer complaints throughout his employment. Globe Bottleshops submits it is clear that the incident with Ms Greer is an example of a repeated pattern of inappropriate behaviour throughout the course of Mr Bridge’s employment that made customers feel uncomfortable. It states the incident was regarded very seriously and caused the customer involved a great deal of stress. It contends that it is clear Mr Morgan felt he could no longer provide a safe premises for customers whilst Mr Bridge was employed, so it had no other choice but to end his employment. Further, it contends it is quite clear there were a number of previous complaints of a similar nature, where customers were made to feel uncomfortable, and it is clear they were all discussed with Mr Bridge and he was counselled.

[14] Globe Bottleshops submits the process of the dismissal itself was fair and reasonable and it adhered to procedural fairness. It contends Mr Bridge was provided with all details of the complaint apart from the identity of the customer, which it says did not preclude him from providing an adequate response. It did not provide Mr Bridge with the CCTV footage, which it concedes was not very conclusive, because it did not want to disclose the identity of the customer, at her request. It contends that considerable time was provided to Mr Bridge to provide a written response, exercising its right to request and require a written response rather than to interview him. Globe Bottleshops submits it is clear that Mr Quarry, in the capacity of his role as Business Manager, conducted extensive questioning with Ms Greer and it is part of his role to undertake investigations into complaints received by his office, noting that Mr Morgan relied on the Corporate office (Cellarbrations) in regard to disciplinary policies and procedures. It says the investigation undertaken by Mr Quarry was by way of questioning and discussing the complaint with Ms Greer on a number of occasions.

[15] Mr Bridge refutes the allegations against him and contends that he never made the comments alleged. He submits that he has served over 250,000 customers while working at Globe Bottleshops and has never said anything even close to inappropriate, let alone profanities to a customer with an overt sexual connotation. He submits he has been persecuted, bullied and harassed by Mr Morgan throughout his employment and that Mr Morgan was out to get him because he stood up to his bullying and shielded staff from it. He states that, after receiving the email from Mr Morgan on 15 March 2021, he responded advising he was stunned by the unsubstantiated and anonymous allegation. When advised his initial response was inadequate and given a further 48 hours to provide a response, Mr Bridge submits he was not provided with any further information as to the identity of the customer who made the allegation, what was purchased, and was unable to add anything to his initial response, which was that the incident did not occur.

[16] On 19 March 2021, Mr Bridge emailed Ms Park and Mr Morgan advising that he had not been afforded due process and a chance to clear his name because he had not been shown the CCTV footage to try to recognise the complainant. Mr Bridge submits he has never been given the opportunity to view the footage, and until the day of the hearing was unaware of the identity of the customer making the allegations against him, which he says is unjust and unreasonable. He submits the investigation was fraught with procedural unfairness, and the decision to dismiss him was made before the allegation was put to him. He contends that Mr Morgan acted hastily, was given a one-sided account of the incident and has taken the customer’s word and dismissed him. Mr Bridge states that while the complainant was interviewed, he was never interviewed as part of the investigation process, was given no clear information about the allegation and not provided any proof for him to challenge, refute or clear his name. He states he only found out more details during the hearing, which was the first time he could put a face to the name of the customer who had made the complaint.

Summary of evidence of Mr Bridge

[17] Mr Bridge began his employment at Globe Bottleshops as a full-time Manager in August 2015 by way of an agreed verbal contract between himself and Mr Morgan. His evidence is he was contacted by Mr Morgan about the job because he was receiving frequent customer complaints about the then Manager. Mr Bridge’s evidence is that within a few months Mr Morgan made it apparent he did not welcome Mr Bridge’s ‘without fear or favour’ approach to his business decisions. He states these business decisions, including being consistently understaffed by 50 hours a week when the store was serving double the customers compared to Mr Morgan’s other venues, and demanding only 105 hours per week to serve 2,500 customers when 160 hours is the industry standard, affected the profitability of the store and were not in anyone’s best interests, putting pressure on himself and other employees.

[18] Mr Bridge’s evidence is that over the next five years, Mr Morgan was freezing him out of decision making for the business and isolating him by rarely coming into the store to say hello if he was working. He states Mr Morgan would visit the store unannounced on Mr Bridge’s days off or after he had knocked off and would ask intimidating questions of the young inexperienced employees working there by themselves. Mr Bridge said he took umbrage to Mr Morgan’s constant undermining of him and would occasionally respond to a negative bullying email from Mr Morgan that was sent to all the stores, which Mr Bridge asserts was an attempt by Mr Morgan to humiliate him because he stood up to his persecution.

[19] Mr Bridge states that Mr Morgan telephoned him at the store one day and told him that he was watching the CCTV footage at the store and he raised concerns that Mr Bridge and another employee had not been attending the counter. He asserts that the employees all became aware that Mr Morgan was viewing them on the CCTV cameras for apparent performance lapses. Three employees then left the business and Mr Bridge states their resignation letters, which included their appreciation of his support and development of them, were forwarded to Mr Morgan and he never thanked or acknowledged their service or positive testimonials in regard to him.

[20] Mr Bridge’s evidence is that despite playing a key role in building the store’s turnover and profitability, Mr Morgan continued to harass and persecute him by sending bullying emails. He states Mr Morgan hastily arranged an ‘annual review’ and surprised him regarding an unfavourable rating on Google from one customer to the exclusion of the 1,000 happy customers he would serve every week. Mr Bridge says he told Mr Morgan he would focus on his ‘personal customer service’ and over the next 12 months the store received over 50 five-star reviews, with 95% mentioning Mr Bridge by name, however this was never acknowledged by Mr Morgan. Mr Bridge states no other store in the group comes close to that as an overall or a positive personal reflection of the Manager and contends this lack of acknowledgement was demoralising and created a toxic work environment.

[21] Mr Bridge’s evidence is that in the afternoon of 12 March 2021, Mr Morgan visited him in the store and said he had serious matters to discuss. They went to a café next door and Mr Morgan brought up two issues. The first was in relation to a $1500 cigarette loss, which Mr Bridge told Mr Morgan he had already discovered when a stocktake was conducted on his day off and was due to an invoicing error which should have been picked up by Mr Morgan’s son. Mr Bridge submits that Mr Morgan became aggressive toward him when he pointed this out. He states that Mr Morgan also accused him of dereliction of duty with regard to shoplifting, despite Mr Bridge having contacted the police on at least 30 occasions in the prior 12 months. Each time the police would visit, Mr Bridge says they would implore Mr Morgan to invest in either a security gate(s) or glass remote doors, however Mr Morgan declined on each occasion. Mr Bridge states all other stores had been fitted with the appropriate security measures. Mr Bridge’s evidence is that he told Mr Morgan he would spend less time in the office as was his demand, despite the physical challenge that would impose due to his muscular atrophy.

[22] Mr Bridge’s evidence is that, on 15 March 2021 at 7:07pm, he received an email from Mr Morgan detailing allegations made by a customer and standing him down immediately pending the outcome of an investigation into the matter. The email provided:

“Hi Dave

Unfortunately the National office of ALM under the Cellarbrations Banner have received a very concerning Harassment complaint from a regular and valued female customer at Wellington Cellarbrations store situated in Liverpool street in Hobart.

The customer alleges that you said to her “would you like a root hehehe receipt”. The customer alleges that you laughed and leered at her in an attempt to make her feel uncomfortable. The customer alleges being spoken to rudely and made to feel uncomfortable by you on each occasion she has regularly visited the store.

The customer now no longer feels safe or comfortable to visit the store again.

As this is a very serious allegation you are suspended from attending your shift tomorrow Tuesday the 16^th of”

[23] A further email from Mr Morgan was sent to Mr Bridge a short time later (at 7:27pm) which said:

“As this is a very serious allegation you are suspended from attending your shift tomorrow Tuesday the 16th of March and Wednesday the 17th of March whilst we undertake an investigation into this matter. You are required to provide me with a response to this allegation by no later than 9.00 am Wednesday the 17th of March.

We will advise you of the outcome of our investigation on Thursday the 18th of March.”

[24] Mr Bridge’s evidence is that he responded to Mr Morgan on 16 March 2021, stating that he was stunned by the unsubstantiated and anonymous allegation. On 17 March 2021, Mr Bridge received an email from Ms Park on behalf of Mr Morgan advising him of the following:

“•  Frank is prepared to provide you with a further forty eight (48) hours to provide a written response to the customer’s allegation. You remain suspended for this period.

•  The date the customer alleges the incident occurred was last Thursday 11 March at 2.53pm.

•  Given that the allegation is very serious, that it is of a sexual harassment nature of a female and that the female customer has reported she now feels unsafe and intimidated, Frank is comfortable that not divulging her name does not procedurally impinge you from providing your response to this allegation.

•  No further time will be provided to you to complete your written response. At the expiration of 48 hours being midday Friday 19 March, Frank will be making a decision as to the outcome of his investigation”

[25] Mr Bridge’s evidence is that he emailed Mr Morgan and Ms Park on 19 March 2021 at 5:30am, advising that he had not been afforded due process with a chance to clear his name by way of at least viewing the CCTV footage of the alleged incident to try and jog his memory. Ms Park emailed him later the same day attaching a termination letter from Mr Morgan which stated:

“Following our investigation of the customer allegation of sexual harassment as provided to you to respond to by today at midday, we have now considered your response and completed the other aspects of our investigation.

As a result of our investigation, we are satisfied that you have breached your duty of care obligations in upholding a safe workplace for all persons free of harassment, our harassment policy and the obligations of all our employees to behave appropriately and professionally at all times. This is by way of the comments you made to this female customer along with the intimidatory behaviour exhibited towards this and other female customers. We regard this incident alone as serious misconduct.

This incident along with at least four (4) previous incidents of unacceptable behaviour as reported to the ALM National office and as addressed with you verbally and followed up in writing, leave us in the position of having lost faith and trust in the employment relationship with you, particularly as it relates to our health and safety obligations.

The termination of your employment is effective immediately. You will be paid your entitlements as due and accrued, within the next seven (7) days. As a goodwill gesture we will also include payment of 5 weeks notice.”

[26] Mr Bridge’s evidence is that the alleged misconduct did not occur, he has never made inappropriate or sexual comments to any customer during his employment, and no evidence has been provided to him to support the allegation of sexual harassment. His evidence is that neither Mr Morgan nor Ms Park have met with him to discuss the complaint, and while the complainant was interviewed by Mr Quarry of head office, he was not given the same procedural fairness. Mr Bridge says he was never interviewed by anyone as part of the investigation process, or given clear details as to the allegations, and only found out more detail during the hearing. He states no-one else was interviewed as part of the investigative process either. He notes Mr Morgan attended the workplace the day after the alleged incident but did not raise the incident with him, nor did he speak to him at any time during the investigation. Mr Bridge says he was only notified four days after the alleged incident when he received the email from Mr Morgan (on 15 March 2021) and stood down immediately. He says he was advised of the time and date of the alleged incident two days later (on 17 March 2021) but not provided the name or face of the customer making the allegation to connect the incident too. Mr Bridge’s evidence is that he requested the identity of the individual and was advised that could not be provided as the individual had concerns about her identity being revealed. He states he also asked what they purchased but that information was not provided and requested to view the CCTV footage straight away so he could recognise the exchange, as he had served 100 customers before and a further 100 customers after the time the incident was alleged to have occurred. He contends that while it was viewed by a staff member (Mr Rose) and Mr Morgan, he was not provided the CCTV footage nor given an explanation at the time as to why he could not view it. As a result of not being provided with the information or CCTV footage requested, he says he was unable to add anything to his initial response, which was that it did not happen.

[27] Mr Bridge’s evidence is that, in his 19 March 2021 email to Ms Park and Mr Morgan, he also advised them he had made an appointment to see his GP on the following Monday (22 March 2021) and that he would provide a medical certificate. He said he had called to make an appointment with his GP on Thursday 18 March but was unable to get into see him until the following Monday and advised them he would provide a certificate covering the time off needed after the appointment and that he was going on stress leave due to anxiety. Mr Bridge’s evidence is that he had been on medication the previous six months due to the stress Mr Morgan had put him under at work and had previously told Mr Morgan he was stressed. He says he called his GP on the Thursday to try and get in to see him, as he was stood down the Monday evening without notice, had been unable to sleep since then, nothing like this had ever happened to him before and his anxiety levels were going up through the roof. He had been accused of something he had not done and couldn’t remember something that didn’t happen. He understood that, on Friday afternoon a decision would be made, and it wasn’t going to be good. His GP was away, and he was unable to get in to see him until the following Monday at noon. He emailed Ms Park and Mr Morgan Friday morning (5:30am) raising his due process concerns and letting them know he was going on stress leave and had an appointment with his GP the following Monday and would provide a certificate then. He says this became a moot point in his mind, as he was subsequently terminated the Friday afternoon via the email from Ms Park attaching the Termination letter from Mr Morgan.

[28] After learning the identity of the customer who made the allegation for the first time during the hearing and being told she comes into the store once a month, Mr Bridge’s evidence is he does not recognise the customer or recall her attending the store on numerous occasions. Mr Bridge notes he has had dozens of customers say they have been in the store numerous times and he still doesn’t know their name. He says he serves 200 customers a day and unlike him they don’t wear a name badge. He says he is polite and tries to do everything right in a small window of 15-45 seconds, so the fact he can’t recognise her isn’t unusual. He says with the 10,000 customers a month into the store, and coming in once a month, he serves a lot of people and doesn’t go out of his way to ask their names or establish anything more than that.

[29] In response to the customer complaints put to him by Ms Park during the hearing, Mr Bridge’s evidence is that the majority were never raised with him, never sent to him prior to the hearing and that he was never contacted about them or asked to respond. His evidence is that there have been four that he would call ‘customer complaints’ in the five and a half years he had worked there, of which only one had been raised with him prior to these proceedings. The first, in September 2018, was in response to him following a customer carrying a rucksack that should’ve been left at the counter into the cool room and asking what he wanted to buy which resulted in a complaint. He said he did not receive a warning or counselling in regard to that complaint and it was never raised with him prior to these proceedings. The second, in October 2018, was in response to a quip he made about a customer’s Irish accent. He said that complaint was raised with him, he acknowledged it and provided his response to Mr Morgan and said for the first and only time Mr Morgan was supportive of him in his response to the customer. A third was in December 2018 in response to him asking a customer to restrain the toddler they had with them that was running around the store. He said he wasn’t warned, counselled, or asked to respond to that complaint, and it was never raised with him prior to these proceedings. The fourth was in response to a customer producing the wrong loyalty card at the counter and the resultant exchange that occurred on 2 December 2019. It is Mr Bridge’s evidence that this complaint was never raised with him prior to these proceedings.

[30] It is Mr Bridge’s evidence that he had not received any prior formal or informal warnings, and no warnings or prior accounts of either intimidation and/or harassment had ever been addressed with him prior to 15 March 2021. He states he has served over 250,000 customers during his employment with the Respondent without any suggestion of sexual harassment, serious misconduct, or intimidation of female customers. He says during the pandemic he kept the store afloat and kept it profitable, Mr Morgan never visited the store during that 16 month period, and he had no customer complaints during that entire time. He says post lockdown he served many customers who complimented him on his enthusiastic service. Mr Bridge notes that Mr Quarry the State Manager for Cellarbrations, came into the store and spoke to Mr Bridge a month prior to his dismissal and didn’t discuss any concerns he had with Mr Bridge’s performance, behaviour, or customer service, nor has he done so in the 10 years he has known Mr Bridge. He also stated that one of the Area Managers who accompanied Mr Quarry to the store only had positive things to say about his attention to customer service. Mr Bridge also contends that Mr Morgan has shown hypocrisy and treated him differently to both his predecessor and successor. Mr Bridge says he was employed because of the numerous customer complaints against the Manager he replaced. He says that person has been allowed to remain employed with the Respondent despite having multiple women complain about him and a verified conduct investigation of intimidation of a female sales representative which he says Mr Morgan is aware of. He also states the Manager who replaced him was terminated by another Franchisee two years ago for proven sexual harassment of customers and staff.

[31] Mr Bridge’s evidence is that he has been looking online for any jobs he thinks he could be suited to, taking into account his muscular atrophy, but has not applied for any jobs formally. He has asked some people in the industry to keep an eye out for him, but he is too anxious about this current matter and not emotionally and physically equipped to return to work at the moment and hasn’t actively looked for work because of those reasons. He stated there were no complaints during the COVID-19 pandemic, he kept the store profitable and afloat and had no sick days in the previous two years including all through the pandemic, and then gets his feet cut out from underneath him and cannot handle two things at once, which is why he couldn’t apply for other jobs. He said he has been home alone for the three months prior to the hearing and was not in a good state of mind. His evidence is that he thinks he would have kept working for another 15 to 20 years. Mr Bridge was paid five weeks on termination and said he has been living off that. He states despite his impeccable record his prospects of getting a job in the industry in Hobart have been severely diminished by this ‘guilty to proven guilty reversal of due process’.

Summary of evidence of Ms Dale

[32] Ms Dale has been a regular customer of Globe Bottleshops for over 10 years. Her evidence is that, since the appointment of Mr Bridge as Manager in 2015, she has made purchases from the store hundreds of times and never witnessed him be anything other than friendly and helpful in his interactions with customers. Her evidence is Mr Bridge was extremely knowledgeable with the range of products, was a great conversationalist and always had a smile and a joke for each and every customer and continually endeavoured to ensure that each customer left the shop satisfied with their selection and, usually, with a smile on their face. Her evidence is that she never witnessed Mr Bridge be unprofessional or make any customer feel uncomfortable with their interactions and was shocked to learn his employment had been terminated.

Summary of evidence of Mr Morgan

[33] Mr Morgan is the sole Director of Globe Bottleshops. It was Mr Morgan’s evidence that following the receipt of a very serious allegation from a female customer of a harassment nature, he undertook an investigation into the complaint. His evidence is that he had a conversation with Mr Andrew Quarry (Cellarbrations) who had interviewed the complainant and gotten all the details which he passed on to Mr Morgan. Mr Morgan says his investigation involved Mr Quarry interviewing the complainant, and him reviewing past complaints about Mr Bridge from customers which also were of a poor behaviour and inappropriate comment nature, some of whom are also female customers who he says were spoken to inappropriately and made to feel uncomfortable. He states his investigation also involved providing Mr Bridge with the details of the customer complaint in order for him to respond to the allegation and says sufficient and reasonable time was afforded to Mr Bridge to do so. Mr Morgan says despite providing every available detail of the complaint apart from the customer’s identity to Mr Bridge, he maintained complete ignorance and zero recollection of the behaviour towards the customer and his words to the customer.

[34] Mr Morgan’s evidence is that upon receipt of the complaint he was shocked, appalled and disappointed and angry that his warnings to Mr Bridge had been completely ignored. His evidence is that he accepted the complaint on face value as he had received previous complaints, and he accepted the complainant was being truthful in what she had told Mr Quarry, and as far as he was concerned, sexual harassment of any customer by any of his staff would not be tolerated. His evidence is he did not speak with the complainant himself but relied on the opinion of Mr Quarry who had interviewed the complainant and believed she was being truthful, and Ms Park of the THA who the complainant confirmed her story to him when they spoke during the period Mr Bridge was suspended. Mr Morgan conceded that he formed the view the complainant was telling the truth prior to the complaint being put to Mr Bridge.

[35] Mr Morgan’s evidence is that he called the THA for advice and handed the matter over to them to deal with. He acknowledged that Mr Bridge requested to see the CCTV footage and says he did not provide that to protect the identity of complainant. His evidence is that he raised the issue with Mr Quarry who spoke to the complainant and told him she wished to remain anonymous for her safety. Mr Morgan said he accepted that and felt it was the right course of action. Mr Morgan viewed the CCTV footage and said all it showed was a female customer at the counter. He said the footage didn’t include any audio, so it is difficult to know or understand what is being said or how the customer is reacting. His evidence is that the customer appeared to be taken aback and shocked but said it is very difficult when looking at CCTV footage to work out what was said, when it was said and what the reaction was.

[36] Mr Morgan’s evidence is that he sought a response from Mr Bridge as to what he was alleged to have said, and that Mr Bridge denied the allegation. He confirmed that the details provided to Mr Bridge about the complaint was what it was alleged Mr Bridge said, and later, the time and date of the complaint. Mr Morgan confirmed he made the decision to terminate Mr Bridge and says he took into consideration Mr Bridge’s denial of the allegation but that there were no further interviews or discussion with Mr Bridge about it prior to the dismissal.

[37] It is Mr Morgan’s evidence that, based on Mr Bridge’s history of previous customer complaints and formal warnings involving poor behaviour and inappropriate comments to female customers and this latest and very serious allegation of a sexually harassing comment, he terminated the employment of Mr Bridge with notice, on 19 March 2021. He says he has a duty of care under the Work Health and Safety Act to ensure the provision of a safe and healthy workplace and store, free of harassment, for all persons. He says he lost all trust in Mr Bridge’s ability to uphold the requirement of the employment relationship with respect to his obligation to maintain and uphold a safe and healthy workplace and public store, free of harassment, for the customers of the store. His evidence is that he had no alternative other than to dismiss Mr Bridge on this basis, as he could not continue to risk the safety and wellness of his female customers.

[38] Mr Morgan denies he has shown hypocrisy or treated Mr Bridge differently to the Manager Mr Bridge replaced when he commenced employment with Globe Bottleshops, or the Manager who replaced Mr Bridge after his dismissal. His evidence is that Mr Bridge’s successor was not dismissed by another franchise for the reasons contended by Mr Bridge, but for another reason. Mr Morgan said he spoke with that person’s former employer who told him the incident leading to the dismissal was very low level. Mr Morgan said he spoke with that person about it and accepted his word and, given his family circumstances was prepared to give him another opportunity. Mr Morgan’s evidence in regard to Mr Bridge’s predecessor, who remained employed with the Respondent after being replaced by Mr Bridge, is that Mr Bridge is wrong in what he says were the nature of the complaints against that person. He says they were complaints by young people trying to get alcohol in disguise. In regard to the allegation made by a sales representative, Mr Morgan says he investigated the allegation and that it was completely unfounded.

[39] Mr Morgan’s evidence is that he raised every complaint received with regard to Mr Bridge with him and said he would’ve done so as soon as he received the complaint from the National office, probably by phone call, but was unable to provide specific details as to when and how those complaints were raised with Mr Bridge. Mr Morgan recalled raising the October 2018 complaint (customer with an Irish accent) with Mr Bridge and having a discussion about it, and confirmed he took no disciplinary action in regard to the complaint. His evidence is that he recalls raising the September 2018 complaint (cool room customer) with Mr Bridge at some stage after receiving the complaint from the National office by either email or phone or both. He initially confirmed that no disciplinary action was taken in regard to that complaint, but subsequently stated Mr Bridge was warned and counselled about this complaint. He said he would’ve given Mr Bridge a verbal warning at the time, along the lines of his customer service skills have to be better than what they are, and he is upsetting customers and it must stop.

[40] Mr Morgan confirmed Globe Bottleshops is relying on the four previous customer complaints against Mr Bridge that they have included in their material, together with the complaint regarding the alleged incident on 11 March 2021 that Mr Morgan acted on. It is Mr Morgan’s evidence that Mr Bridge received written warnings by email in regard to the complaints. He said he recalls an email suggesting to Mr Bridge he has had numerous warnings and that he has ignored them and referred the Commission to an email from himself to Mr Quarry dated 5 December 2019 which he characterised as a warning letter. He said it was a copy of an email that was sent to Mr Bridge. His evidence is that the warnings referred to in that correspondence would have been verbal, and that after each complaint received, he would have called Mr Bridge and spoken to him about the complaint and given him a verbal warning. Mr Morgan confirmed the email of 5 December 2019 is the only written warning he is relying on in regard to Mr Bridge being warned about the complaints raised. It is Mr Morgan’s evidence that he would have emailed other written warnings to Mr Bridge, however he was unable to produce those to the Commission when requested, or the original of the email dated 5 December 2019 he says was sent to Mr Bridge.

[41] When asked why he did not believe Mr Bridge, Mr Morgan’s evidence is that based on the number of previous national complaints about Mr Bridge he had to deal with, and the fact that on each occasion a complaint was raised, Mr Bridge could recall the words and conversation verbatim, he thought he had been fairly patient with him, he thought he had counselled him and warned him and it was the end of the road as far as his employment as Mr Morgan couldn’t continue to accept it. On top of that was the last complaint which was the most serious, and he was absolutely shattered, shocked and appalled and at that stage had lost all faith in Mr Bridge. His evidence is he believes the complainant, that she had every right to make the complaint and he had every right to uphold it.

Summary of evidence of Ms Greer

[42] Ms Greer is a customer of Globe Bottleshops, purchasing drinks from the store once a month (outside of lockdown) for a regular work meeting. Her evidence is that Mr Bridge has served her at least seven or eight times, and she has never felt comfortable in the store as he was often rude to her, didn’t speak to her at all (apart from making a comment about the receipt) or was dismissive. She says she was always made to feel, in asking for a receipt, she had personally offended or was annoying Mr Bridge. She says she continued to use the store because it was convenient for her, and while she has received poor service before, the incident on 11 March 2021 was the first incident at the store that she felt warranted a complaint.

[43] Ms Greer’s evidence is that, during her visit to the store on 11 March 2021, Mr Bridge said to her ‘would you like a root hehehe receipt’. Her evidence is she was totally shocked and said to Mr Bridge ‘‘I’m sorry, I think I misheard you then’. She says Mr Bridge laughed at her and said, ‘I misheard myself’ and continued to laugh and leer after. Ms Greer says his response confirmed for her that he had absolutely said it. Ms Greer said she was not sure if Mr Bridge’s comment was the first thing he said to her when she came to the counter, as she was quite upset by the incident. She states she was extremely offended and upset by Mr Bridge’s behaviour and feels very strongly that his comment was not only of a sexual nature and very inappropriate, but made to intentionally make her feel uncomfortable, which she did. It is for this reason she thought it necessary to make a complaint and said she will never be returning to this store again for fear of being treated this way again or worse.

[44] Mr Greer’s evidence is she made her complaint on the Cellarbrations website the day after the incident (12 March 2021), as she was still very angry that it had occurred. She then received a phone call from Mr Quarry of head office on Monday 15 March 2021. Mr Quarry asked her about what had happened and to tell him in her own words again what she had written in her complaint and elaborate. Mr Quarry then told Ms Greer they took the matter very seriously and they would be presenting her allegation to Mr Bridge and would take action depending on his response. She was also asked to send through her complaint in email form, which she did. Ms Greer’s evidence is that in a subsequent conversation with Mr Quarry she told him she was very uncomfortable with Mr Bridge knowing who she was, because of the tone of their interactions previously. She clarified that by the tone of their previous interactions she felt she had been treated rudely by Mr Bridge in the past and confirmed she had an issue with Mr Bridge. Ms Greer’s evidence is she spoke with Mr Quarry about a week later and was told Mr Bridge had been stood down as a result of the allegation and asked if the matter went further would she testify to her experience. Ms Greer’s response was that she would prefer to do it anonymously but, if that was not possible, she would strongly consider it. Ms Greer said she received a follow up phone call advising that the matter was going ahead, and she was given the date. Ms Greer’s evidence is that she did not speak with Ms Parks of the THA until the Monday (31 May 2021) prior to these proceedings, and the conversation was around how to attend the hearing remotely and thanking her for participating and thinks Mr Morgan could be mistaken in thinking she had spoken to Ms Parks when Ms Parks was reviewing the complaint and disciplinary process. She said she was contacted by Mr Quarry a week or two after speaking with him about her complaint and asked to put together her witness statement that was subsequently filed by the Respondent in these proceedings, and believes he told her the statement was for these proceedings.

[45] Ms Greer says she is concerned that women should feel comfortable and safe at the very least, particularly in a public store, and that women should not be exposed to any form of harassment, in any place, and certainly not by males employed to provide a safe service and employed to maintain and uphold a safe and healthy place for all to visit. Her evidence is she felt harassed and unsafe during and after this incident.

Consideration

Harsh, Unjust Unreasonable

[46] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[47] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd.² McHugh and Gummow JJ explained as follows:

“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.”3

[48] I will now consider each of the matters set out in s.387 of the Act.

Was there a Valid Reason for the dismissal- s.387(a), Other Relevant Matters – s.387(h)

[49] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 4 The reason for the dismissal should be “sound, defensible and well founded”5 and should not be “capricious, fanciful, spiteful or prejudiced.”6

[50] 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. 7 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).⁸

[51] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.⁹ It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 10

[52] Sexual Harassment can be defined as an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature in circumstances where a reasonable person, having regard to all the circumstances, would anticipate the possibility that the person harassed would be offended, humiliated or intimidated. 11 Conduct of a sexual nature included making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing. Sexually harassing behaviours may include sexually suggestive comments or jokes or requests for sex.

[53] Mr Bridge and Ms Greer’s evidence was at odds. Mr Bridge evidence was that he did not recognise Ms Greer as a customer and denies Ms Greer’s allegations. Ms Greer’s evidence is that she frequented the store on a monthly basis and on the 11 March 2021, Mr Bridge spoke to her inappropriately stating words to the effect of ‘would you like a root hehehe receipt”. For the reasons set out below I prefer the evidence of Ms Greer.

[54] Shortly after her visit to the shop Ms Greer submitted her complaint in writing. Due to the nature of the complaint, Ms Greer originally did not want to be identified, however, because of the serious nature of her allegations, she agreed to be identified and to participating in the hearing. Ms Greer understandably felt uncomfortable during proceedings, especially during cross-examination by Mr Bridge, however she gave frank and what I considered to be honest answers. I have also considered what was put to Ms Greer by Mr Bridge during cross-examination. At no stage was it put to Ms Greer that she had either lied or was it proposed that she had been mistaken. Ms Greer also gave evidence that was at odds with Mr Morgan’s evidence, when provided with an opportunity to correct her evidence she remained truthful even if it was potentially detrimental to the Respondent’s case. I found Ms Greer’s evidence to be convincing.

[55] Mr Bridge presented a number of online reviews by customers which largely described him as a humorous character, an unforgettable character, hilarious, absolutely funny, a legend and that he had brought a good sense of fun and humour to the store. Mr Bridge had also been thanked online by customers for giving away wine as gifts for visiting Tasmania. Mr Bridge also presented copies of resignation letters from former employees who also shared similar sentiments to the online reviews. The evidence was telling in that it provided some insight as to how Mr Bridge conducted himself in the workplace. Mr Bridge engaged with customers by making jokes or by humouring them. Mr Bridge took pride in the fact that he was humorous and thought his conduct was acceptable because he was not trying to cause offence or wasn’t acting out of malice. Although Mr Bridge’s style of customer service was enjoyed by many, not every customer appreciated his style of customer service. When an Irish customer took offence to Mr Bridge making a joke about the Irish accent, Mr Bridge sought to justify his actions by stating he meant no malice. Mr Bridge was clearly of the view that if he did not mean any harm then no harm was done.

[56] Mr Bridge says he has never made personal comments to female customers before; however, the evidence does not support this. Mr Bridge had made personal comments to a female customer and that customer made a written complaint about the interaction stating that Mr Bridge’s comments had caused offence and were derogatory and inappropriate. Mr Bridge sought to justify his comments, from his evidence I understood he intended the comment more of a euphemism rather than a personal observation about the customers appearance. The customer requested Mr Bridge be provided with training that would explain to him ‘what is appropriate workplace behaviour’, and ‘what is an appropriate conversation to have with customers’.

[57] Mr Bridge was able to recall many of the customer complaints that were presented during the hearing and was able to provide his account of the events. However, not only was he unable to recall the interaction with Ms Greer, but he also claims not to have recognised Ms Greer who visited his store on a monthly basis. I found Mr Bridge’s evidence on this matter unconvincing. I accept Ms Greer’s evidence that she would go to the store on a monthly basis and purchase wine for a work meeting and, on each occasion, she requested a receipt from Mr Bridge. It is my view Ms Greer is a person with distinguishing features and it would be very difficult to not recognise her if she visited the store on a monthly basis.

[58] In his defence, Mr Bridge argued that he was being bullied and targeted by Mr Morgan and gave evidence about the ongoing issues in their relationship. Mr Bridge took issue with Mr Morgan not welcoming his “without fear or favour” approach to when critiquing his business decisions. Essentially Mr Bridge saw no issue himself with his “without fear or favour” approach and couldn’t understand why Mr Morgan, the Director and owner of the business, didn’t appreciate being challenged about his business decisions that, in Mr Bridge’s view, rightly or wrongly, affected profitability. It is my view that Mr Bridge lacks a degree of insight as to how his conduct affects others and there is no evidence before me that would lead me to believe that Mr Morgan had manufactured the allegations or was bullying or targeting Mr Bridge. Mr Morgan was clearly frustrated with Mr Bridge and the ongoing issues he had regarding his conduct and this was evident during the proceedings.

[59] Although Mr Bridge was not dismissed for reasons of poor performance but rather for his conduct, Mr Bridge gave evidence that he had not been provided with any counselling or warnings. The evidence does not support such a finding, there had been discussions with Mr Bridge about some of the customer complaints. Whilst not all of Mr Morgan’s evidence was convincing, I am satisfied that he had discussed with Mr Bridge on occasion customer complaints and that Mr Bridge’s humour was not always acceptable to others and was at times offensive. Mr Bridge says he does not recall those discussions. However, on 12 August 2019, Mr Morgan bought to Mr Bridge’s attention a poorly rated online review and raised concerns that it was a serious customer complaint that required an immediate response and should be investigated. Mr Bridge was requested to look into the matter and keep Mr Morgan informed. Mr Bridge responded stating he had no idea or memory of any negative visits to the store and took no further action. On 28 November 2019, Mr Morgan wrote to Mr Bridge providing him with a written warning about setting his own pricing on a product without Mr Morgan’s knowledge and for allegedly intentionally implicating an unsuspecting work colleague. The warning also states that Mr Bridge had the worst sales performance in the Group and 50% less growth than any other store in the Group for that calendar year. The warning also included, amongst other things, that Mr Bridge had failed to provide weekly stock takes on spirits as previously requested, working additional hours without cause to and not responding to Mr Morgan about customer complaints he had requested Mr Bridge to follow up on. Mr Bridge responded to the email providing an explanation as to his excessive working hours. On 23 October 2020, Mr Morgan raised another poor online review with Mr Bridge. Mr Bridge responded stating that the customer was either an eccentric and not a regular or both.

[60] Mr Morgan gave evidence that he had sent Mr Bridge a further warning on 5 December 2019 regarding his conduct. The copy of the warning provided to the Commission states amongst other things that “Your previous comments state that in your defence you believe that your past dialogue with customers was thought by yourself to be humorous and possibly taken out of context. On all occasions you were warned by myself that what you may consider as humourous may be offensive to a customer.” (sic). Mr Bridge denies ever receiving such a warning. The copy of the warning is contained within an email which, whilst it is addressed to Mr Bridge, did not include him in the email correspondence. Mr Morgan offered to produce to the Commission a copy of the original email he says he sent to Mr Bridge; however, he was unable to do so. During his oral evidence, Mr Morgan was furiously adamant that he had had verbal discussions with Mr Bridge about his conduct and later submitted the contents of the email were discussed verbally with Mr Bridge. Mr Bridge does not recall any such discussion taking place. I accept Mr Bridge’s evidence that he did not receive the warning as set out in the email provided as evidence in these proceedings. However, I am persuaded by Mr Morgan’s evidence that he had in the past raised his concerns with Mr Bridge, including the matters set out in the email.

[61] Whilst I accept Mr Bridge meant no harm or malice and he may have thought he was being funny; the issue is not whether Mr Bridge meant to cause harm, the fact is he continued to offend customers, including Ms Greer, and his conduct caused Ms Greer to feel offended and intimidated. That was unacceptable. I am satisfied on the evidence before me that Mr Bridge made unwelcome comments of a sexual nature to Ms Greer and, in making the comment, he caused her to feel offended and unsafe. I am satisfied that a reasonable person having regard to the circumstances would have anticipated that the comment made by Mr Bridge was likely to cause Ms Greer to feel harassed and to cause offence.

Notification of the Valid Reason –s.387(b) and an Opportunity to Respond –s.387(c)

[62] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 12, and in explicit13 and plain and clear terms.14 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 15

[63] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 16

[64] The dismissal of Mr Bridge was nothing less than procedurally disastrous, there was little to no procedural fairness afforded to Mr Bridge. Once Mr Bridge notified Mr Morgan that he had made a doctor’s appointment and was going on stress leave Mr Morgan acted quickly to dismiss Mr Bridge without affording him a reasonable opportunity to reply to the allegations.

[65] Mr Bridge was not interviewed by either the THA or Globe Bottleshops during what I considered to be a flawed investigation process. Ms Greer was interviewed by Mr Quarry and that was the extent of any independent inquiry. There is no evidence before me of a proper investigation being carried out. Further, Mr Morgan had made up his mind that Mr Bridge was guilty of the alleged conduct before he had even commenced the investigation. Mr Morgan had also decided to dismiss Mr Bridge prior to providing him with the allegations in full, denying him the opportunity to respond.

[66] The complainant details, the CCTV footage, what the customer purchased and the full extent of the details of the complaint were not provided to Mr Bridge therefore Mr Bridge was unable to adequately respond to the complaint. There was no show-cause process followed and prior to his dismissal Mr Bridge was not provided with the findings of any investigation that Globe Bottleshops alleges it undertook.

[67] Mr Bridge was not provided with any form of procedural fairness. He was not afforded the full details of the complaint, was denied the information that should have been made available to him and, in its haste to dismiss him, Globe Bottleshop failed to provide Mr Bridge with an opportunity to respond to the reasons which it relied on for the termination of his employment.

Unreasonable Refusal of a Support Person – s.387(d)

[68] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.¹⁷ With respect to this consideration, the Explanatory Memorandum states:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.18

[69] There was no request made by Mr Bridge to have a support person present, I find this to be a neutral consideration.

Warnings regarding Unsatisfactory Performance – s.387(e)

[70] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.¹⁹ Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct.²⁰ The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.²¹

[71] Mr Bridge was dismissed for reasons of misconduct not performance.

Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(g)

[72] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.²² Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.²³

[73] Whilst Globe Bottleshops did not have its own internal human resource management, it relied on both the national office and the THA for its human resource advice. The correspondence sent to Mr Bridge requiring him to respond to the allegations and the subsequent action taken by Mr Morgan failed to ensure Mr Bridge was afforded procedural fairness. Globe Bottleshops had an obligation to ensure it managed its disciplinary processes in a procedurally fair way and it failed to do so.

[74] Globe Bottleshops submits that the reason Ms Greer’s details were not provided to Mr Bridge was because she had declined to be identified and that this remained the case even after Mr Bridge had sought the identity of the complainant so that he could adequately respond. The Respondent’s submission on this matter was simply misleading. Ms Greer’s evidence was that other than providing her with information about the hearing neither Mr Morgan nor the THA had made any such request. This criterion weighs in favour of a finding that the dismissal was unfair.

Finding

[75] The decision to dismiss Mr Bridge was procedurally unfair. Before a decision was made to terminate Mr Bridge’s employment, he should have been provided with further particulars that would have enabled him to provide a response regarding the incident. Mr Bridge should also have been provided with the opportunity to view the CCTV footage which was also denied. The decision to terminate Mr Bridge’s employment was made prior to the outcome of the investigation and prior to Mr Bridge being notified of the reasons for his dismissal. Further when one considers that Globe Bottleshops had access to and did access professional advice from the THA prior to making the decision to dismiss Mr Bridge, there was no reasonable excuse for the failure to provide him with procedural fairness.

[76] Given the lack of procedural fairness in affecting the termination, I am satisfied that the dismissal was unfair, I must now turn to the issue of the remedy to be ordered.

Remedy

[77] Mr Bridge does not seek reinstatement and instead sought compensation. Globe Bottleshops does not think reinstatement is an appropriate remedy in the circumstances and submits the implied trust in the employment relationship has broken down. The relationship between Mr Bridge and Mr Morgan had been in decline for some time prior to the dismissal, I am satisfied that reinstatement would be inappropriate in this case.

[78] Globe Bottleshops submits that if customer complaints continued, and taking into account the economy, the pandemic, restructuring and costs factors, Mr Bridge would likely not have remained in employment for much longer.

[79] Mr Bridge states that he thinks he would have kept working for another 15 to 20 years.

[80] I do not accept that Mr Bridge would have remained in his employment for another 15 to 20 years. The relationship between Mr Bridge and Mr Morgan was declining and there were a number of issues with Mr Bridge’s conduct that had arisen during his employment and it was only a matter of time before Mr Morgan took action as he did on the occasion of the complaint made by Ms Greer. Had Mr Bridge not been dismissed in such an abrupt manner and afforded a reasonable opportunity to respond to the allegations, my best estimate is that he would have remained employed for a further two weeks.

[81] Mr Bridge gave evidence that he had been online looking for jobs he thought he was suited to and had friends “looking out for jobs for him”. Mr Bridge submits he was too anxious about this current matter and not emotionally and physically equipped to return to work at the moment and he hasn’t actively looked for work because of those reasons.

[82] Globe Bottleshops submits there is no medical evidence or attempt to obtain medical support or evidence to back up Mr Bridge’s reasons for not applying for jobs and there has been no attempt to apply for a job.

[83] Mr Bridge has not provided any medical evidence to support his submission that he was not physically capable of applying for work. However, I have taken into account the circumstances of the pandemic and the loss of employment opportunities in the hospitality sector. Considering all of the evidence, I make no deductions on account of Mr Bridge’s failure to mitigate his loss.

[84] Mr Bridge had not earned any money since his dismissal. No amounts are to be deducted on this account from the amount of compensation. I make no deduction for contingencies. Further due to the gross procedural unfairness, I make no deductions for the misconduct.

[85] Mr Bridge evidence was that he was earning $1500.00 gross per week was uncontested. Two weeks’ pay would amount to $3000.00 gross.

[86] There is no evidence to support a conclusion that an order for the payment of $3000.00 wages plus any applicable superannuation would have a detrimental effect on the viability of the business.

Conclusion

[87] I have found that the termination of the Applicant was unfair due to the lack of procedural fairness afforded to him.

[88] I am satisfied that a remedy should be ordered in this matter and that reinstatement is inappropriate. Taking into account all the circumstances, I order compensation in the amount of $3000.00 plus superannuation with the deduction of applicable taxation as required by law. This amount is to be paid to Mr Bridge by Globe Bottleshops within 21 days of the date of this decision.

[89] An order 24 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

D Bridge on his own behalf
A Park of the Tasmanian Hospitality Association for the Respondent

Hearing details:

2021.
Melbourne (by video link via Microsoft Teams):
June 4.

Printed by authority of the Commonwealth Government Printer

<PR730365>

 1   MA000009

2 (1995) 185 CLR 410.

3 Ibid at 465.

 4   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.

 5   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 6   Ibid

 7   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

8 Ibid.

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

 10   Ibid

 11   Sex Discrimination Act 1984 (Cth)

 12   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

 13   Previsic v Australian Quarantine Inspection Services Print Q3730

 14   Ibid

 15   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [73]

 16   RMIT v Asher (2010) 194 IR 1 at 14-15

17 Fair Work Act 2009 (Cth) s.387(d)

18 Explanatory Memorandum, Fair Work Bill 2009 (Cth) [1542]

19 Fair Work Act 2009 (Cth) s.387(e)

20 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237

21 Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie [2012] FWA 2 [58]

22 Fair Work Act 2009 (Cth) s.387(f)

23 Fair Work Act 2009 (Cth) s.387(g)

 24   [PR733237]