[2021] FWC 6318

FAIR WORK COMMISSION

DECISION

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

Ms Roslyn Claydon
v
Celotti Workforce Pty Ltd T/A Celotti Workforce
(U2021/1041)

COMMISSIONER SPENCER

BRISBANE, 11 NOVEMBER 2021

Application for unfair dismissal remedy –– alleged serious misconduct – inappropriate conduct and language in the workplace – conduct substantiated – standard of serious misconduct not established – procedural deficiencies in dismissal process – valid reason for dismissal.

INTRODUCTION

[1] Ms Roslyn Claydon (the Applicant) made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) contending that the termination of her employment with Celotti Workforce Pty Ltd T/A Celotti Workforce (the Respondent) was harsh, unjust and unreasonable.

[2] The Respondent operates a recruitment business with offices in Darwin and an office in Brisbane where the Owner/Director, Mr Celotti and General Manager, Mr Weygood were located. The Applicant had been employed as a Recruitment/Business Development Consultant, for the Respondent, and she worked in the Parap, Darwin Office. The Applicant had been employed by the Respondent for approximately two years and ten months.

[3] The Applicant considered that her dismissal was harsh, unjust and unreasonable and initially sought reinstatement and continuity of service and wages for the interim period, pursuant to s.391 of the Act.

[4] The matter was heard in the Fair Work Commission (FWC) Darwin, with all witnesses (apart from one) providing their evidence there. Mr Weygood, the General Manager, provided his evidence by video from Brisbane FWC. The representatives were located in Brisbane and participated via video link, using Microsoft Teams. The Applicant was represented by Ms Ellie Bassingthwaighte, Solicitor of Hall Payne Lawyers. The Respondent was represented by Ms Theresa Moltoni, Managing Legal Practitioner of IRIQ Law. Both representatives were granted permission to appear, pursuant to s.596 of the Act. Final submissions were provided in writing by consent, at a later date.

BACKGROUND

[5] The Applicant was dismissed for serious misconduct, following complaints about her conduct at the workplace.

[6] The Applicant was advised on Wednesday, 27 January 2021, upon arriving at work, that the Respondent held ‘serious concerns’ regarding her workplace conduct and that she would be stood down with pay from her role, whilst she responded to the matters. The Respondent had endeavoured to contact the Applicant prior to her arriving at work. The Applicant was sent a text message asking her to contact Mr Nathan Weygood. The Applicant was not advised as to the specific nature of the Respondent’s concerns at that time. These were set out in correspondence.

[7] On Thursday, 28 January 2021, the Applicant was presented with a ‘show cause’ letter, outlining some 11 allegations to which the Applicant was directed to respond to, by close of business on 29 January 2021.

[8] The show cause letter signed by Mr Weygood, stated as follows:

“RE: Opportunity to Please Explain

Dear Roslyn

Serious concerns have arisen regarding your conduct in your role as Recruitment/Business Development Consultant at Celotti Australia Pty Ltd (‘Celotti’). A process is now underway to deal with these concerns and it is appropriate that you do not attend work until you are advised to do so.

Whilst you are suspended from work, we ask that you provide a written response to the following issues:

1. It is alleged that you regularly make disparaging comments to, or in the presence of, other staff in the Darwin office about Nathan Weygood and Adrian Celotti, including comments regarding how the Celotti business is managed.

Over the period commencing 7 December 2020 to date specific examples of this behaviour include the following comments made by you in morning meetings:

a. you have referred to Nathan Weygood as a “wanker” and “incompetent”; and

b. you have referred to procedures implemented by Celotti as “illegal”.

2. It is alleged that you have engaged in conduct towards other staff members which, if proven, could constitute workplace bullying and harassment.

From 7 December 2020 to date specific examples of this alleged conduct include:

a. On several occasions you have made inappropriate comments to staff in morning meetings regarding their clothing, you have also referred to a number of Celotti staff as “incompetent”.

a. You are overly critical of Ms George in her performance of her role. You frequently critique Ms George’s work and emails and make a point of identifying minor grammatical errors and mistakes.

b. You are disrespectful to Ms George and treat her like a personal assistant, including by directing her to perform menial tasks in an impolite tone, using words to the effect of “fetch me that” or “do this for me now”. This is despite the fact that Ms George is not your assistant and is a direct report to Mr Weygood.

c. You are dismissive of the opinions of other Celotti staff, particularly when those opinions do not align with your own. For example, in a recent discussion with Ms George regarding uniforms for candidates at the client (name redacted), you both had conflicting recollections as to what the client instructions were. When this was followed up with the client, the answer did not align with what you perceived to be correct. Regardless, you still insisted that Ms George (and by extension the client) was wrong and directed that the candidates wear the uniforms you wanted them to. This conduct by you, if proven, shows an inability or otherwise failure to work with your colleagues in a productive manner, to follow client instructions and to accept that at times, the information you perceive to be accurate is incorrect.

d. While you were on leave over Christmas you left a list of jobs to be completed by Ms George. This job list included the recruitment of a Crane Engineer for (redacted). You provided Ms George with the details in Job Adder and a list of bullet points for the role. Ms George utilised this information and found a candidate. She then cross checked her choice of candidate with Mr Adrian Celotti, who agreed with her choice. The candidate was subsequently submitted to the client.

When you returned from work you criticized Ms George’s choice for approximately 15 minutes, outlining why Ms George had made a mistake in putting the candidate forward. It is alleged that during this discussion you told Ms George “it isn’t your fault; Adrian shouldn’t have let you do it” in what was perceived to be a belittling tone. You then stated that the client relationship was “completely ruined” and that the client had said “Why are you sending us this shit? You have never done it before. What has happened to your office?”.

If a client made a complaint of this nature, it is an expectation of Celotti that management is immediately notified. It is not useful or constructive to inform staff that their choice of candidate was so poor that it effectively severed a client relationship. It is expected that in your role as Manager, you provide appropriate training and guidance regarding what is instead required of staff in the future.

You were also overheard by staff on 18 January 2021, while in discussions with Mr Weygood, stating words to the effect of “Nobody is competent at filling my jobs because they are too complex, not even Nicola or Vilisi could do them.” You then stated that Ms George was provided with concise instructions regarding the above candidate (notwithstanding this is incorrect).

Ms George made an error regarding the correct date on the first draft. When provided with the second draft you told Ms George she had the job title wrong, despite the fact that you did not provide this information to Ms George, so she was required to utilise the details in Job Adder. It is alleged that you then told Ms George to “hurry up and don’t make mistakes”, in what was perceived to be a rude tone.

The third version of the document had another error being the incorrect supervisor name. Ms George had input the information that you provided her in this instance, though she was later informed by you that this information was incorrect. Despite this, you said words to the effect of:

“Nicole wouldn’t make this many mistakes”; and

“Nicole has only ever had to redo these twice”,

to which Ms George responded that she needs the correct information and time to read her work, without being rushed. Ms George then completed the contract correctly once you were off the phone and provided the correct details. While Ms George printed the forms, it is alleged you continued to make belittling comments to Ms George comparing her mistakes to Nicole’s work.

Ultimately, Ms George said words to the effect of “Ros, can you please stop making these comments, they’re making me feel upset and putting me down and I don’t like them”, to which you responded that you were joking and asked, “is it because you’re feeling bad because you’re making mistakes?”.

An example of this is the production of handouts for the client (name redacted) event where there was a disagreement regarding the number of handouts produced for the event. You made a comment to the effect of “[Ms George is] getting up your nose because she doesn’t listen and do as she is told”.

Further examples include recent comments to the effect of:

“Charlotte is far too loud; I don’t know how to tell her without upsetting her. She’s just there, in my ear all the time”; and

“Charlotte is always flossing about making tea”.

The alleged conduct, if proven, demonstrates a refusal or otherwise failure by you to conduct yourself in a respectful and professional manner in the workplace. It is conduct amounting to gross insubordination to senior management and persistent workplace bullying. If proven, this conduct is grounds for summary dismissal from your employment.

In addition to this alleged conduct, we are further concerned by your response today to our lawful direction to stand you down while these matters are investigated. In response to receiving a lawful workplace direction not to attend work, you swore at Mr Weygood and made the following comments in an aggressive tone:

a. ““This is a cuntish thing to do mate”;

b. “ I have not done anything in this company to deserve what you’re doing to me”;

c. “This is fucking outrageous”; and

d. “This is bullshit what you’re doing Nathan”.

These comments were made in the presence of other Celotti staff members.

After hanging up the phone to Mr Weygood, you then stated words to the effect of:

a. “Have fun in this shithole of a company girls” to Ms Nicole Le Hars and Ms George; and

b. “I have just been stood down with full pay by Nathan and he will not give me a reason as to why, this is absolutely outrageous! I have no idea what I have done wrong. I have done nothing but work my butt off for this company and have no idea what I have done to warrant this. I am on my way to see a lawyer”, in the presence of Ms Hilary Davidson and Mr Mark Oliveira. These comments were made after you had been given a lawful and reasonable directive to leave the building immediately and not to speak about the matter with staff.

These are all serious issues and if found proven will result in disciplinary action which may include the termination of your employment with Celotti. We require a written response from you on each of these issues by no later than close of business 29 January 2021.

Should any or all of these allegations be substantiated, we ask that you please show cause as to why your employment should not be terminated summarily on the basis of serious misconduct.

Your written response can be sent to my email address: nathan@celotti.com.au

Celotti Workforce will give your response, and any other relevant matters, due consideration. The Company will then make a decision as to the most appropriate course of action at that time. We will contact you to advise you of this and ask that you make yourself available and contactable during work hours…”

[9] The Applicant stated that she was distressed by the show cause letter and sought immediate medical attention. The Applicant submitted that she obtained a medical certificate advising that she was receiving medical treatment.

[10] The Applicant sought an extension until 2 February 2021, from the employer, to respond to the show cause letter. This extension was granted by the Respondent. On Tuesday, 2 February 2021, the Applicant, through her legal representatives, then wrote to the Respondent and requested that she be provided until Friday, 12 February 2021, to submit her response to the allegations. The Applicant did not receive a response to this correspondence.

[11] On Thursday, 4 February 2021, the Applicant was summarily dismissed by the Respondent on the basis that she had engaged in serious misconduct. The termination letter signed by the director of Celotti workforce of 4 February 2021, stated as follows:

“Dear Roslyn,

RE: Notice of Termination

I refer to the please explain notice issued to you on 28 January 2021. This notice raised a number of concerns regarding your conduct in your role as Recruitment/Business Development Consultant at Celotti Australia Pty Ltd (‘Celotti’).

You were directed to provide a written response to these concerns by no later than close of business 29 January 2021. You were stood down from work on full pay throughout the required response period.

On 29 January 2021, you indicated that you required additional time to respond to our notice, citing two weeks as a reasonable timeframe. Celotti responded that we considered you had been provided with a reasonable period within which to respond to the concerns raised. Notwithstanding this, Celotti agreed to extend the timeframe for your response until close of business Tuesday, 2 February 2021.

As at close of business on 3 February 2021, you have provided no response to our please explain notice. You have now been notified on two occasions that if you did not respond and provide an explanation for the concerns raised, a decision would proceed on the information available to us.

After considering these matters, I have now come to a decision regarding the most appropriate course of action.

Please Explain Notice

In the please explain notice, you were directed to explain various concerns that have been identified with your conduct in the workplace, including concerns that:

1. you regularly make disparaging comments to, or in the presence of, other staff in the Darwin office about Nathan Weygood and Adrian Celotti, including comments regarding how the Celotti business is managed (see examples detailed in please explain notice);

2. you have engaged in conduct towards other staff members which, if proven, could constitute workplace bullying and harassment (see examples detailed in please explain notice);

3. in response to our lawful direction to stand you down while the above matters were investigated, you swore at Mr Weygood and made the following comments in an aggressive tone in the presence of other staff:

a. “This is a cuntish thing to do mate”;

b. “I have not done anything in this company to deserve what you’re doing to me”;

c. “This is fucking outrageous”; and

d. “This is bullshit what you’re doing Nathan”; and

4. after hanging up the phone to Mr Weygood, you stated words to the effect of:

a. “have fun in this shithole of a company girls” to Ms Nicole Le Hars and Ms George; and

Findings

In the absence of any information provided by you to contrary, I find that all of the allegations outlined in the please explain, including each of the specific examples detailed in that document, are substantiated.

Your substantiated conduct is extremely serious. It demonstrates a refusal or otherwise failure by you to conduct yourself in a respectful and professional manner in the workplace. It is conduct amounting to gross insubordination to senior management and persistent workplace bullying, which has created an imminent risk to the health and safety of Celotti staff.

It is conduct inconsistent with the continuation of the employment contract and is grounds for summary dismissal from your employment.

Our Considerations

On the basis of those findings, it is important that I now turn my mind to what is the most appropriate course of action.

In considering this, I have taken the following into consideration:

1. your length of service;

2. the seriousness of the matters raised; and

3. the opportunity provided to you to respond to these matters, which you elected not to avail yourself to.

Decision

After taking time to consider all of the relevant concerns, and in the absence of any information provided by you to the contrary, I find that your actions constitute serious misconduct within the meaning of rule 1.07 of the Fair Work Regulations 2009 (Cth).

On that basis, Celotti has made the decision to terminate your employment, effective immediately on the grounds of serious misconduct.

I ask that you arrange to return any Celotti property, information, or material as a matter of urgency. Arrangements will be made for the issuing of a separation certificate and the payment of any final monies owing upon receipt…”

RELEVANT LEGISLATION

[12] Pursuant to s.394 of the Act:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

…”

[13] Further, ss.386 and 387 of the Act relevantly provide as follows:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[14] As to any remedy to be ordered, s.390 of the Act provides:

“390 When the FWC may order remedy for unfair dismissal

…

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[15] Section 392 of the Act provides:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.”

[16] Regulation 1.07 of the Fair Work Regulations 2009 provides the definition for serious misconduct, stating:

“Meaning of serious misconduct

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

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

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

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

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

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

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

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

(i) theft; or

(ii) fraud; or

(iii) assault; or

(iv) sexual harassment;

(b) the employee being intoxicated at work;

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

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.”

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE, INCLUDING FINAL SUBMISSIONS

[17] The Applicant submitted that she was unfairly dismissed and sought reinstatement, along with an order maintaining continuity of service and back payment of wages for the period that she was unemployed. Alternatively, the Applicant sought compensation pursuant to s.392 of the Act.

[18] The Applicant was summarily dismissed on 4 February 2021, on the basis that she had engaged in serious misconduct (the letter is relevantly extracted above). The Applicant submitted that she denied the majority of the allegations against her, as recorded in the correspondence of 28 January 2021, and stated that she did not engage in the conduct alleged – being serious misconduct – because she did not engage in ‘gross insubordination to senior management’, nor did she engage in ‘persistent workplace bullying, which created an imminent risk to the health and safety of Celotti staff’. The Applicant submitted that the Respondent would be unable to prove, to the requisite standard, that she engaged in serious misconduct, as that term is defined at r.1.07 of the Fair Work Regulations 2009.

[19] The Applicant provided a witness statement in support of her application. The Applicant stated that apart from the matters resulting in her dismissal, she had not been advised of any issues with her conduct or performance during her employment with the Respondent.

[20] The Applicant stated that on 27 January 2021, she was stood down from her employment. She stated that she spoke with Mr Weygood at approximately 9:00am and he said to her, words to the effect of:

“I have been informed of allegations of serious misconduct against you. You are going to be stood down on full pay while an investigation is conducted. You must leave the building immediately.”

[21] In response, the Applicant stated that she was completely floored by Mr Weygood’s comments, as she had no prior notice of the meeting and no indication that there were any concerns with her conduct, let alone, concerns that she had engaged in serious misconduct. The Applicant said to Mr Weygood words to the effect of ‘What is this about?’ to which he responded ‘that’s all I am prepared to say at present’. The Applicant stated that she tried to press Mr Weygood for further details in relation to the allegations, however he refused to elaborate.

[22] The Applicant stated that she was extremely upset by the entire situation. She stated that she was worried about her employment and, given the seriousness with which Mr Weygood had described the conduct, her mind began to catastrophise the situation. She stated that she began to worry about losing her job and the financial impact that would have on her partner and herself.

[23] The Applicant further stated that she was also angry with Mr Weygood for the way that he had communicated the news of her stand down. She stated that she felt ambushed by Mr Weygood in that moment and upset that he would not provide her further details as to why she was being stood down, despite saying that certain allegations had been made against her.

[24] The Applicant stated that she began to feel unwell, and that she felt panicked and knew that she needed to speak to her general practitioner. The Applicant considered that she was not thinking straight in the immediate aftermath of being stood down and proceeded to leave the office immediately. She had been directed to leave the office and not discuss the matter with staff.

[25] At about 11.30am on 27 January 2021, the Applicant stated that she received an email from Mr Weygood in the following terms:

“Dear Ros,

Further to our discussion this morning, I confirm that some serious concerns have come to our attention regarding your conduct in the workplace.

Whilst a process is underway to consider those concerns, you have been directed to stay away from work. You will be paid during this time and we ask that you make yourself available during work hours should we need to contact you. Once we are in a position to, we will provide you with an opportunity to respond to the concerns.

In the meantime it is also appropriate that we direct you:

• Not to attend our offices;

• Not to make contact with any employee or associate of our organisation; and

• Keep these matters confidential.

Please understand that, if substantiated, these concerns could result in disciplinary action that could include the termination of your employment.

We must also warn you that any victimisation of Celotti employees or derogatory comments made to anyone about Celotti Workforce, its officers, management or employees will be taken very seriously and in itself, could constitute serious misconduct and could jeopardise the employment relationship as well as result in defamatory proceedings being brought.

We will be in touch with you as soon as we can. Can we please confirm the correct email address and phone number to contact you on?

Please ensure you make yourself available during work hours.

We understand that this is a difficult situation. If you require any assistance you may contact our Employee Assistance provider Access EAP on 1800818728

Kind regards
Nathan Weygood
General Manager”

[26] The Applicant stated that she burst into tears upon opening the above email. She stated that she contacted Maleys Lawyers and tried to book an appointment in order to obtain legal advice. She also made an appointment with her general practitioner, because she was concerned that her mental health was getting progressively worse.

[27] At about 1.30pm on 28 January 2021, the Applicant received an email from Mr Weygood with a copy of a letter attached. The letter asked her to ‘please explain’ her actions in relation to a number of allegations by 29 January 2021. The Applicant stated that she knew immediately that this was not a timeframe that she was able to comply with, particularly given her current mental state.

[28] The Applicant stated that she was upset by what she considers were largely fabricated allegations. She stated that she felt hopeless when she noticed that Mr Weygood was the alleged victim, witness and investigator, as she was worried that she would not be able to convince him to believe her version of events.

[29] The Applicant stated that she was able to engage Maleys to assist with preparing a request for an extension of time to respond to the letter, and to prepare her response. She also attended her doctor – Dr Khan –and was provided with a medical certificate.

[30] On Friday, 29 January 2021, the Applicant sent an email to Mr Celotti, Ms Suzie Celotti, Director, with copy to Mr Weygood in the following terms:

“Dear Suzie, Adrian and Nathan,

Thank you for the opportunity to respond to the letter from Mr Weygood, dated 28 January 2021. I refer and note the response date of 29 January 2021. This response time is neither reasonable nor fair due to the seriousness and magnitude of the allegations and accusations within. The time frame, demanded, of one day is unacceptable. Notably, two weeks is a reasonable time frame for my response. Allegations will be addressed in subsequent correspondence and I shall forward my response by close of business 12 February 2021.

Attached, for your records, is a letter from Dr Khan dated 29 January 2021. I am under his care and management due to acute stress and psychological distress caused by Mr Weygood.

Yours faithfully,
Roslyn Claydon”

[31] The Applicant stated that she attached a copy of the medical certificate that she had been provided by Dr Khan to the above email. The certificate dated 28 January 2021 set out that the Applicant was receiving treatment and had been under the Doctor’s care since 28 January 2021. 1

[32] At 5.55pm on 29 January 2021, the Applicant received an email from Mr Weygood in which he advised that the timeframe would be extended to Tuesday, 1 February 2021. Mr Weygood made a mistake in the email as 1 February 2021, was a Monday.

[33] On 2 February 2021, Mr Errol Chua, Solicitor for Maleys Solicitors, wrote to Mr Weygood on the Applicant’s behalf. In the correspondence from Mr Chua, he articulated the Applicant’s concerns with the short timeframe, requested an extension until 12 February 2021, and identified an issue with Mr Weygood’s involvement in the matter as an investigator/assessor of the truth of the allegations, when a number of the allegations related to him personally. The Applicant stated that she did not receive a response to this correspondence from the Respondent.

[34] At about 9.00am on 4 February 2021, the Applicant received a copy of a letter from Mr Weygood advising that her employment was being terminated with immediate effect because she had engaged in serious misconduct. The letter was signed by Mr Celotti.

[35] The Applicant, in her statement denied that she engaged in ‘gross insubordination’ and was unsure what conduct, specifically, Mr Celotti and/or Mr Weygood were referring to. The Applicant also denied that she engaged in ‘persistent workplace bullying, which created an imminent risk to the health and safety of Celotti staff’. To the extent that the determination that she engaged in workplace bullying was based on a finding that she engaged in the conduct that is described in the ‘please explain’ letter, the Applicant stated that such a finding is wrong, as she did not engage in that conduct.

[36] The Applicant stated that following the termination of her employment, she has not been able to secure alternative employment. She stated that Darwin is a small town and the labour hire/recruitment industry in Darwin is smaller again. There are limited employment opportunities in this field. The Applicant believes that she is likely to be further hindered in her ability to secure alternative employment due to her age, as at 56 years old, she considers that she is older than the majority of candidates applying for recruitment positions.

[37] The Applicant’s representative submitted that in considering whether there was a valid reason for the dismissal, a finding of fact must first be made as to what occurred and this must be undertaken on a consideration of the entire relevant factual matrix and based on sufficient inquiry as to whether the employee was guilty of the conduct which resulted in termination. 2

[38] Furthermore, it was emphasised that in the assessment of a valid reason, a consideration of the context of the alleged behaviour and the gravity of such must be undertaken. Further, that it must be recognised that any alleged conduct is not committed in a vacuum and the events should be assessed in relation to the interactions with other employees and the particular circumstances pre-empting the action. 3

[39] The Applicant’s representative submitted that the evidence of the Respondent should be closely scrutinised by the Commission and clear cogent or strict proof in relation to the allegations was required. Further that the Respondent held the onus of establishing the valid reason and that the alleged misconduct took place.

[40] It was submitted on behalf of the Applicant that the situation warranted a real discussion with the employee prior to termination. It was conceded that the Applicant was one of the Respondent’s most senior and long serving employees. Further that her style of communication was direct, that she was also regarded as a competent recruiter and valued employee of the Respondent. In addition, it was submitted on her behalf that she engaged in training and development and supervising of junior staff. The employer had critiqued the manner in which the Applicant had undertaken these roles in terms of the allegations made.

[41] It was submitted on behalf of the Applicant that she had experienced no issues in regard to her conduct, capacity or performance in the role, prior to Ms Charlotte George commencing work in the Darwin office. It was submitted that the Applicant had worked with Ms George for a limited time when the Applicant’s absence on leave and work related matters was taken into account during the December and January period, prior to the dismissal.

[42] The submission on behalf of the Applicant was that there was a factual dispute as to whether the Applicant was provided with a confidentiality direction by Mr Weygood during the course of the telephone call on 27 January 2021, when the Applicant was stood down.

[43] The Applicant however does concede that after the conclusion of that call (taken in an open plan office) she said to Ms Le Hars and Ms George, “Have fun in this shithole of a company girls”. She also stated that she remarked to Ms Davidson and Mr Oliveria that she had been stood down on full pay by Mr Weygood, without reason and that it was absolutely outrageous considering she had done nothing wrong and had worked her ‘butt off’ for the company and was on her way to see a lawyer.

[44] The further process with regard to Mr Weygood’s email in relation to the standdown and the please explain letter was set out in the evidence as were the 12 allegations. 4 The Applicant stated that the Respondent conveyed to her:

‘Your substantiated conduct is extremely serious. It demonstrates a refusal or otherwise failure by you to conduct yourself in a respectful and professional manner in the workplace. It is conduct amounting to gross insubordination to senior management and persistent workplace bullying, which has created an imminent risk to the health and safety of Celotti staff. It is conduct inconsistent with the continuation of the employment contract and is grounds for summary dismissal from your employment.’ 5

[45] The Applicant set out that she was not provided with notice of termination or payment in lieu of notice, nor the outstanding commission payments relating to her work prior to the termination of her employment.

[46] It was referenced that the primary point of contention between the parties was whether a valid reason existed for the dismissal on the allegations. It was submitted on behalf of the Applicant that she had demonstrated good recall in her evidence and whilst it was set out that the Applicant’s tone of voice in providing her evidence may have had ‘an edge’ to it, her demeanour was not rude or disrespectful during cross-examination and that she was a reliable witness.

[47] In contrast it was submitted that Ms Davidson was confused in her evidence, about conversations occurring in the lunchroom over the short period they work together given the Applicant established there was no specific lunchroom nor was any employee entitled to overtime which it was submitted undermined her evidence on the subject.

[48] It was identified that Ms Le Hars had worked with the Applicant for a much longer period, and it was recognised that the Applicant had been interested in her professional development and some of the conduct attributed to the Applicant could be considered functions of a supervisor. She also recognised that the Applicant had driven Ms George to work in circumstances where she had no obligation to do so. It was also submitted that in relation to Ms George’s completion of the contracts, that this was an appropriate request.

[49] It was argued that the evidence of Ms Maleimi was considered to be somewhat evasive and cautious with her responses. Such was explained; as her wanting to maintain her ongoing employment. She admitted to being an active participant in collegiate discussions with the Applicant regarding some of management’s responses and questioning the nature of some meetings.

[50] Ms George had referred to the decline in the relationship with the Applicant and that she had become upset and dissatisfied with the Applicant’s monitoring of her work and unreasonable responses. She had conceded how it could be understood that the Applicant was in a supervisory role. In relation to the recruitment ‘incident’, she had been unwilling to accept an error had been made in relation to her selection of the candidate and set out that there had been an absence of any direct advice in relation to such from the client.

[51] It was submitted on behalf of the Applicant that the culture of the workplace had allowed for swearing and that the comment ‘put a muzzle on it’ was attributed to Mr Weygood in circumstances where he was asking Ms George to be quiet during a meeting. He had confirmed that he was not the investigator in relation to the complaints put to the Applicant and that the allegations had been put to the Applicant and simultaneously to the staff.

[52] It was submitted that Mr Weygood has been evasive in his evidence, in relation to his level of involvement in the termination decision. However, he directly affirmed that the Director of the business had been the decisionmaker in relation to the dismissal.

[53] It was submitted on behalf of the Applicant that there was a lack of clarity in relation to the reasons for the dismissal and that in regard to the allegations it was submitted that there was no substantiation that the Applicant had made disparaging comments to staff the General Manager or the Director of the business. However, the Applicant had admitted to calling the General Manager a ‘wanker’ at the morning meeting, however she stated this was responsive to concerns expressed to her regarding his conduct of the Christmas party. She denied referring to the general manager as incompetent or that procedures implemented by the Respondent were illegal.

[54] The Applicant denied engaging in bullying or negative behaviour towards other staff and explained that any such instances were considered reasonable management action such as administering corrections in regard to grammatical errors and mistakes made by Ms George. She denied demanding Ms George fetch things for her or that she treated her as a personal assistant to perform menial tasks (in an impolite tone).

[55] It was submitted on behalf of the Applicant that the sub-allegations in relation to 9,10, 11 and 12 were not substantiated. In relation to the swearing at Mr Weygood, the Applicant was apologetic and remorseful and stated that the circumstances of extreme stress and uncertainty played into the situation. She denied she breached a lawful and reasonable direction regarding, leaving the workplace and maintaining the confidentiality of the matters.

[56] It was submitted on behalf of the Applicant that the dismissal was unfair as she was not afforded the two weeks she requested to respond to the allegations, also that she was not warned regarding the unsatisfactory performance prior to the dismissal. In addition, it was argued that the Applicant’s personal circumstances in relation to her age and location in Darwin rendered her dismissal disproportionately harsh in terms of the impact on her and her partner. The Applicant did not provide evidence regarding her attempts to mitigate her loss and she said that she had been unable to secure alternative employment and sought reinstatement, continuity of service and back payment of wages.

[57] In terms of reinstatement, she noted that the general manager was based in another office and that some of the staff members had now left the employer. Further that an order of compensation would not have an effect on the viability of the Respondent’s business where the Respondent was a relatively large employer of labour hire workers in addition to its own staff. It was also noted that the Applicant had been employed for some 2 1/2 years. Without particular detail she did indicate that she had applied for a number of roles, however that her dismissal and the restraint clause in her employment contract had confined her ability to secure other employment.

[58] It was argued on behalf of the Applicant that the length of the continuing employment relationship would have been indefinite for the foreseeable future. Alternatively, it was submitted that if a procedurally fair process had been observed, the length of the continuing employment relationship would have been at least two weeks with the payment of the Applicant’s statutory notice period being three weeks wages as an additional payment.

[59] Further submissions and evidence on behalf of the Applicant are referred to later in this decision. The Applicant’s response in reply to the show cause letter is set out in full later in this decision.

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

Witness statement of Nathan Weygood

[60] Mr Weygood, General Manager for the Respondent, filed a witness statement in these proceedings. Mr Weygood has held this role since around May 2020, and was the Applicant’s direct manager during her employment with the Respondent. Mr Weygood stated that to the best of his knowledge, prior to his commencement the Applicant’s direct manager was Mr Adrian Celotti, the Respondent’s Director.

[61] Mr Weygood noted that as he was based in Brisbane Queensland, his primary interactions with the Applicant occurred via Microsoft Teams meetings and mobile phone. He did travel to Darwin and the employees had all been together for the recent Christmas Party. He stated that the video meetings occurred daily, and his observation was that the Applicant’s demeanour in meetings was very authoritative, and she rarely allowed her colleagues to speak. He said that even when Ms George or Ms Le Hars was directly asked a question about what the work they were doing that day, the Applicant would frequently cut in and respond instead. Mr Weygood said he would often have to tell the Applicant that she needed to let others speak.

[62] Mr Weygood did not recall personally hearing the Applicant say negative comments about him, but said that if the Applicant made a comment in Teams Meetings or on the phone that he felt was unprofessional, he would address it ‘then and there’. He also stated that if the Applicant did not agree with proposed processes, she would roll her eyes and make clear with body language and her tone of voice that she did not agree.

[63] Mr Weygood stated that Ms George approached him a few times to state she was having difficulty working with the Applicant. He stated further that other staff members had made informal comments to the same effect.

[64] Mr Weygood’s evidence is that he had raised with the Applicant that she needed to provide positive feedback to staff and allow staff members to feel heard. He said that he also advised the Applicant she needed to be able to accept circumstances where the business made decisions she did not necessarily support. Mr Weygood stated however that prior to receiving a ‘fulsome formal complaint’, he was not aware of the severity of the Applicant’s workplace conduct; and once the Respondent was made aware of the concerns, it took immediate steps by standing down the Applicant and follow a due process as outlined below.

Stand Down Process

[65] Mr Weygood received a formal complaint on 21 January 2021, which raised serious allegations regarding the Applicant’s workplace conduct. He annexed a copy of this letter to his statement. 6 The formal complaint was signed by Charlotte George. Mr Weygood stated that a decision was then made to stand the Applicant down, to allow the concerns to be put to the Applicant and seek a response.

[66] Mr Weygood gave evidence that he made several attempts to contact the Applicant by phone on the morning of 27 January 2020, to stand her down prior to her commencing work for the day. He stated that he also sent her a text message requesting a call ‘ASAP’. He said that the Applicant telephoned him at 8:35am (Qld Time) while he was driving to a client meeting. He stated that he verbally advised the Applicant that she was being stood down, effective immediately, as there had been some allegations put to him that needed to be investigated. Mr Weygood’s evidence was that this was not a meeting as characterised by the Applicant; rather it was a direction from the Respondent, as her employer, to stand her down from her employment pending investigation of relevant matters.

[67] Mr Weygood stated that, had the Applicant engaged in the disciplinary process proposed, the Respondent would not have denied her the opportunity to have a support person present at any meeting that was subsequently scheduled. His evidence is that when he advised the Applicant she was being stood down, she asked what the allegations were and said words to the effect of “this is outrageous”. Mr Weygood said that he told the Applicant he needed to further consider the allegations, and said words to the effect of: “I will provide you with an opportunity to respond in a formal meeting, but until then I need you to not come into the workplace or talk to anyone in the office.” He said that he apologised for the stand down having to take place, and explained that he had been trying to contact the Applicant since 7.15 am (NT Time) that morning.

[68] Mr Weygood said he and the Applicant discussed the best contact details for her, and the Applicant advised she did not have a personal phone number. Mr Weygood confirmed the Applicant could keep the work car and phone but directed her not to contact anyone work related. He said that the Applicant said words to the effect of: “You need to tell me why I have been stood down, it’s my legal right, this is fucking outrageous”. Mr Weygood stated however that he did not consider it appropriate to provide her with further details at the time, particularly as she was in the office with other employees and it was a potential health and safety issue. Mr Weygood gave evidence that he repeated what he had already said to the Applicant, and that she replied: “This is a massive cunt act, its fucking outrageous, I’ve done nothing wrong.” Mr Weygood responded with words to the effect of:

“Ros, I think it’s really inappropriate for you to be speaking to me like this and if all you are going to do is yell expletives at me, I suggest we stop the conversation and I request that you leave the building immediately. You can take the car and the phone but leave your laptop in the office.”

[69] He said that the Applicant told him he would hear from her ‘fucking lawyers’, and hung up the call.

[70] Mr Weygood sent the Applicant an email at 12.57pm on 27 January 2021, confirming that serious concerns had come to the Respondent’s attention regarding her conduct, and that she had been directed to stay away from work and would be paid while the process was underway to consider those concerns. He annexed a copy of this correspondence to his statement. 7

[71] Mr Weygood stated the Applicant was provided a ‘please explain’ letter on 28 January 2021 and directed to respond by close of business on 29 January 2021. He noted the Applicant was stood down from work on full pay throughout the required response period. Mr Weygood stated the Applicant then sought a two week extension for providing her response, and that he responded noting that the Respondent considered she had been provided a reasonable timeframe to provide her response, but granted an extension until close of business Tuesday, 1 February 2021. He noted the typographical error, as it should have provided Tuesday, 2 February 2021.

[72] Mr Weygood gave evidence that rather than engaging with the disciplinary process, the Applicant chose to engage legal representation and sent correspondence on 2 February 2021, again requesting further time to provide her responses to the allegations. Mr Weygood’s evidence is that the Respondent did not respond to the Applicant’s legal representatives “as the matter was a workplace disciplinary process, and the Applicant had already been granted an extension”, and her response was due the day of the further correspondence. Mr Weygood said that the Applicant had already been advised that a decision would be made on the information available to the Respondent, if no response was received from the Applicant. Mr Weygood’s evidence is that in the absence of a confirmed extension from the employer, there was an expectation by the Respondent that the Applicant would respond to the ‘please explain’ process. He said that in lieu of receiving any response, the employer considered the allegations on the information before it, which included enquiries with relevant staff. No response was received and the employer determined the claims against the Applicant were substantiated. The decision was subsequently made to summarily dismiss the Applicant.

[73] Mr Weygood’s evidence was that he was not an investigator or decision maker regarding the Applicant’s dismissal, as alleged in her statement. He stated that in his role as General Manager, he reasonably initiated the stand down of the Applicant and the disciplinary process. He stated that he kept Mr Celotti updated throughout the process, and Mr Celotti was ultimately responsible for assessing the Applicant’s response, which was not received, and other relevant information in making his final decision around the Applicant’s dismissal. Mr Weygood noted, during cross examination, that this is why Mr Celotti provided the notice of termination to the Applicant.

Applicant’s application for unfair dismissal remedy

[74] Mr Weygood noted that the Applicant’s application for unfair dismissal remedy sought to provide a comprehensive response to the please explain letter. He said however the Respondent was never provided a copy of this document, (set out below) and was unable to consider the information at the time of making the final decision regarding her dismissal.

[75] Mr Weygood also stated that the Applicant’s ability to compile that response by the due date demonstrated she was capable of responding to the Respondent within the timeframe proposed and had chosen not to do so. However, nothing provided altered the reasons for the decision that was made.

Response to show cause letter from the Applicant

[76] In his statement, Mr Weygood referred to the Applicant’s document, that was drafted in response to the Respondent’s show cause letter. A copy of this response was attached to Mr Weygood’s statement. The letter from the Applicant was dated, 30 January 2021, it is therefore uncertain why the Applicant could not meet the Respondent’s deadline for this response. The document is set out below:

“30 January 2021
Suzie and Adrian Celotti
Celotti Workforce Pty Ltd
Level 1, 28 Parap Rd Parap NT 0804

Dear Suzie and Adrian,

I refer and note the letter received from Mr Weygood, dated 28 January 2021. I question Mr Weygood’s ability to be impartial in this quasi and punitive investigation. I am at a great disadvantage by no provision of an alternate forum to deal with this complaint and am denied procedural fairness. I have my own witnesses who would defend me but they are fearful of repercussions.

I now address the spurious allegations;

Over the period commencing 7 December 2020 to date specific examples of this behaviour include the following comments made by you in morning meetings:

a. you have referred to Nathan Weygood as a “wanker” and “incompetent”; and

b. you have referred to procedures implemented by Celotti as “illegal”.

1. Disagree - I have never made disparaging comments about Mr Celotti, until now he is someone, I had a huge amount of respect for and considered a friend. I have worked very hard on his behalf to build and grow the NT sector of the Celotti and Tracks Indigenous Services Businesses. Nor have I made any disparaging remarks into the way the Celotti business is run.

I did query Mr Celotti in regard to the current staff numbers as I was concerned as to the profitability of the business, he told me that we needed the numbers to enable us to grow the business.

a. Agreed - I have referred to Mr Weygood as a wanker, it is important that this is now put into context. Mr Weygood came to the Darwin branch prior to Christmas to meet us all and attend the Christmas Party. After the Christmas Party dinner, my partner and I left and the others continued on into town. When we all got back to work on the Monday, I asked the girls how it all finished up. Mr Weygood allegedly got extremely drunk and both Miss Le Hars and Miss George stated that “he creeped them out and that they felt uncomfortable around him” also that they were not happy with the way he was touching their arms and putting his arm around them. I had been concerned at the way he was looking at the younger female members of the staff in the office prior to this event. I advised them that should anything occur that they were not comfortable with and unable to deal with themselves I would do something about it on their behalf. I then mentioned it was hard to have respect for a man that behaved in this fashion who has no etiquette and the most disgusting table manners. I then stated “don’t worry about it, he is just a wanker” and assured them that I would protect them if necessary.

Disagree - I have never referred to My Weygood as incompetent.

b. Disagree – Procedures implemented

Agree – Illegal. When Miss Le Hars became close to completing her Cert III in Business Administration, she asked me what her salary would be once qualified. Together we looked up the Fair Work web site and what her salary should have become. This was a good training opportunity as well, as we constantly refer to this to ensure we pay people legally. When she had completed her course, she did not receive the pay rise expected. Miss Le Hars was very disappointed by this, I asked Mr Celotti why she was not being paid as per the Clerks Private Sector Award, he stated he had sought legal advice and she was still being paid as a trainee under the National Employment Standards. My understanding is that to be considered a trainee the individual must be engaged in a Nationally accredited training programme, she is not. My belief is that she should also be receiving the 17.5%loading on any holiday pay, she is not. I did bring this up to both Mr Celotti and then Mr Weygood when he assumed the General Managers position. I received a very nasty email from Mr Weygood, stating along the lines of that my conversations with Miss Le Hars were to stop and that she reported to Mr Weygood not myself. I did not acknowledge or respond to this email. Up until Mr Weygood commenced Miss Le Hars had in fact been reporting to me and I had been her manager, trainer and mentor, including mentoring her for a variety of personal issues she was facing, it was only natural that she should come to me for advice.

Of further concern are contracts in place, which I have written, with host companies who are engaging apprentices. On the contracts with these companies there is a clause, that states any Government funding for employment will be shared 50/50 and their portion would be issued by way of a credit. Payment of their portion has not occurred. I asked Mr Celotti about this, he stated “it is not on their contracts” then once I advised him that this in fact is on their contracts he then stated aggressively “they have not asked for it”. I then mentioned this to Mr Weygood in his position as General Manager and his comment was “I do not blame Adrian for not paying this” This surely is not acceptable and a violation of the contract.

When Mr Wedgwood issued the new Commission structure I refused to sign, and he attempted to bully me into signing it via telephone, his conversation with me became heated and aggressive to end the telephone call, I told him I think you will find there are some legal ramifications in regard to this, and that I would seek counsel and get back to him, this enraged him further. I sought legal advice and the advice I received was that all money that had been earnt needed to be paid within one month of said earnings. The current structure is to pay commissions two and a half months in arrears. Also that should you leave employment no commission earnt would be payable, again from the legal advice I received, money earnt is money payable. I presented my findings to Mr Weygood, he presented me with a different understanding from his legal advice. This then culminated in the abhorrent meeting outlined below. I have still not signed said document. We were able to reach agreement on the amount payable. The other thing that concerns me is that when Mr Celotti introduced the initial deduction to commission structure the amount that it was reduced by would go to colleagues.

I agreed to this as I thought it was fair and reasonable for my colleagues to get some benefit as well. No payment has been made to these individuals. Celotti is effectively pocketing these amounts. Although probably not illegal definitely immoral and unfair.

Recently when my work computer was fixed by IT there was a different email address that I had access. In this was a receipt from Job Keeper for two payments for Mrs Celotti, I feel quite sure that a Director of numerous businesses, with Directors drawings and a salary from each that this is not what this Government incentive was meant for. I also believe that the personal amounts of expenditure that are written off against the Celotti business is questionable.

I have been repeatedly on call for the whole business with no extra remuneration or time in lieu and I have not been receiving the 17.5% holiday loading. I have been on call for my clients and candidates 24/7 again with no extra remuneration or time in lieu. This has included during holiday time taken.

I often attended after hours work functions as part of my Business Development again with no extra remuneration or time in lieu.

2. I vigorously deny the following;

a. On several occasions you have made inappropriate comments to staff in morning meetings regarding their clothing, you have also referred to a number of Celotti staff as “incompetent”.

a. Disagree - I have never made any comment with regard to anyone’s clothing. Fashion is not something I have any interest in, nor would I comment on this as I am simply not interested. The only individual that I have called incompetent is Amber (can not recall surname) who was engaged for a very short period of time and was clearly not capable of undertaking the position for which she was engaged, she has since left the business.

a. You are overly critical of Ms George in her performance of her role. You frequently critique Ms George’s work and emails and make a point of identifying minor grammatical errors and mistakes. (note alphabetizing is incorrect, this point should be b. and so on)

Disagree - Professional presentation of written communication externally is a vital part of Celotti’s image. I have not been overly critical, when I discovered the poor level of grammatical skills, I would recommend the correct grammar and instigated discussions. Whereby when grammatical errors and mistakes were made both Miss Le Hars and Miss George would look up on the net the correct way of doing things. Miss George would never just take my word for any inaccuracies and always needed to refer to another source. I saw this as a healthy learning environment which would improve both of their command of appropriate language. This then created further discussions around the correct way of doing things, which I believed was a good training tool. Professional presentation is also important to Miss George, with the information that was submitted by Mr Weygood to Kolsen, Miss George was very angry that she had not been allowed to submit the candidates directly to the client and that Mr Weygood had insisted on doing it himself. Miss George had spent some considerable time undertaking interview notes and reference check for Mr Weygood to enable him to submit the details. When she discovered his submission on the system, she was furious at the illiteracy and unprofessional submission which included none of the details she had provided. She confronted Mr Celotti about his.

b. Disagree - I have never disrespected Miss George and I do not treat her as a personal assistant. My understanding is that via a convoluted chain of command she is there to assist myself and other Business Developers with their requirements. The job is menial by nature, data entry, reference checks etc are monotonous and repetitive. I have never been impolite to Ms George and I certainly would never use the term â€œfetchâ€. I make a point every day of saying thank you and when deserved well done to both Ms George and Ms Le Hars. I have absolutely requested could she â€œplease do the references for this person now, or could you please concentrate on this specific task first or the draft advertisement has been approved can you please post it nowâ€ in order to fulfil client deadlines. Although Ms George is not my direct report once we have had our morning meetings and the work has been assigned in practicality if she is working on my clients it is me that is required to give her the direction, she requires to undertake her duties. This has always been done in a courteous and considerate fashion.

c. You are dismissive of the opinions of other Celotti staff, particularly when those opinions do not align with your own. For example, in a recent discussion with Ms George regarding uniforms for candidates at Broadspectrum, you both had conflicting recollections as to what the client instructions were. When this was followed up with the client, the answer did not align with what you perceived to be correct. Regardless, you still insisted that Ms George (and by extension the client) was wrong and directed that the candidates wear the uniforms you wanted them to. This conduct by you, if proven, shows an inability or otherwise failure to work with your colleagues in a productive manner, to follow client instructions and to accept that at times, the information you perceive to be accurate is incorrect.

c. Disagree - This statement is simply false. Myself and Ms George attended a client meeting for Broadspectrum to discuss the positions coming up. I only included her in this meeting as I thought it would give her a better understanding of the client requirements and enable her to recruit more effectively, also to involve her to enable her to feel included. After the meeting whilst we were going through the details, she mentioned that work boots were not what was required. I checked my notes which stated non slip, work boots and advised her that we would seek clarification. Which occurred at a subsequent meeting. To suggest there was any conflict between myself and Miss George on this occasion is ludicrous. To suggest I would direct candidates to wear what I wanted them to is laughable. To suggest I am perceiving information given inaccurately is ridiculous.

d. Disagree - Over Christmas I did give Miss George a list of things that need attention whilst I was on leave. I told her not to really worry about the Crane Engineer as this position would be very difficult to fill and that the client was extremely pedantic. The position in JobAdder has a full position description. When I returned to work and discovered the individual that had been submitted. I asked why, she told me that Mr Celotti had approved the submission. I tried to explain to her why he was not suitable, she became agitated and argumentative. Informing me if this person was not adequate, I would need to change the way the advertisement was written. Even though I tried to explain it to her the requirement of previous experience working with cranes in an oil and gas offshore environment was the fundamental pre requisite she failed to understand why the person submitted was not suitable. This highlights her inexperience, particularly in the technical oil and gas environment. I would have thought that Mr Celotti would have a greater understanding, a Mechanical Engineer is not necessarily a Crane expert, although they may be able to meet all other criteria for the position, which her candidate did, however he did not have any required prerequisite of crane experience or from memory offshore experience. I did not state the client relationship was ruined I stated “this has damaged the client relationship” The comment from the client when I followed up on her submission was less than favourable I cannot recall the exact words but along the lines of “why are you sending me this shit, you do not normally waste my time with people who will be of no use, what is happening” The reason the conversation with Miss George was lengthy was she became argumentative, defensive, belligerent and aggressive, wanting to go through the Advertisement, which we did. Even so she was still not able to grasp the primary prerequisite of crane experience. The relationship with the client has not been severed, Miss George is aware of this. I have subsequently submitted two other potentially suitable candidates and with being stood down have not been able to follow up. I did not bother to inform Mr Weygood of the client’s displeasure as I saw no point, it was not a major issue and the relationship is fully rectified.

On the 18 January 2021 I did have a discussion with Mr Weygood, I was expressing my concerns of junior new recruits’ ability to fill my complex oil and gas offshore positions as there are numerous mandatory tickets involved, complex medicals, not to mention the complexities of specific specialised tasks undertaken. I did mention there is no one else in the organisation that currently has the ability to work on these positions including Mr Weygood, Ms Armone and Ms James, simply because they have had no exposure to this industry. Mr Weygood agreed with this and we both agreed that training was required. It is impossible in our offices to have a conversation privately as it is open plan and even if you go into one of the adjoining rooms all conversation can be heard. There was nothing derogatory in this comment.

e. You belittle Ms George in her role and place unreasonable expectations on her performance. For example, on 15 January 2021, you needed to finalise two contracts before you left work for the day. In the first instance you did not provide adequate information to Ms George to input into the contracts and subsequently took a phone call without providing this information. In the absence of further details, Ms George used the details in Job Adder to complete the contract. Ms George made an error regarding the correct date on the first draft. When provided with the second draft you told Ms George she had the job title wrong, despite the fact that you did not provide this information to Ms George, so she was required to utilise the details in Job Adder. It is alleged that you then told Ms George to “hurry up and don’t make mistakes”, in what was perceived to be a rude tone.

“Nicole wouldn’t make this many mistakes”; and

“Nicole has only ever had to redo these twice”,

Ultimately, Ms George said words to the effect of “Ros, can you please stop making these comments, they’re making me feel upset and putting me down and I don’t like them”, to which you responded that you were joking and asked, “is it because you’re feeling bad because you’re making mistakes?”.

Disagree - I have never belittled Miss George or placed unreasonable expectations on her. On 15 January 2021 two contracts indeed needed to be produced, note this is the first time that Ms George has produced a contract for my review and sign off. It was the last task required on a Friday afternoon. Miss Le Hars, Miss George and myself were keen to finish up for the day, the request was well before official knock off time. Full details of the positions and start date were on JobAdder for Ms George to refer too. Miss Le Hars was standing in attendance to assist her and collect the documents off the printer for approval and sign off. I did take a phone call from a client, which she then insisted in rudely interrupting, demanding my attention, rather than referring to the available detail’s in JobAdder. I had to actually excuse myself from the call briefly to address her rude and forceful interruption. With the third incorrect document produced she became angry and belligerent. I in fact told her to slow down and pay attention to the details. I attempted to lessen her anxiety by making a joke in regard to Miss Le Hars learning curve with these sorts of documents. Ms George had the correct information and was not being made to rush and I believe got angry with herself for the mistakes made. Miss George makes a habit of rudely interrupting when I am on a phone call as when she is demanding my attention, she has no concept of waiting until an appropriate time.

f. You make comments to other staff about perceived mistakes made by Ms George in the performance of her role. More specifically, over the past week there are a number of occasions when Ms George has left the room that you have made belittling comments about her personally and about her work ethic. An example of this is the production of handouts for the Broadspectrum event where there was a disagreement regarding the number of handouts produced for the event. You made a comment to the effect of “[Ms George is] getting up your nose because she doesn’t listen and do as she is told”.

Further examples include recent comments to the effect of:

“Charlotte is far too loud; I don’t know how to tell her without upsetting her. She’s just there, in my ear all the time”; and ”.

“Charlotte is always flossing about making tea

Disagree - I have never made comments to other staff about perceived mistakes made by Miss George as she has not made any other than the contracts mentioned above. I have never made belittling comments about her personally or about her work ethic. Ms George had nothing to do with the conversation between myself and my client in regard to the number of the handouts required for the briefing. As directed by my client with no involvement from Miss George I created sixty as requested. I then requested that she print off sixty copies of a client specific document and add it to the packs which I had created. There was certainly no disagreement regarding the number as she was not privy to the conversation with the client and had no knowledge of what had been requested.

I did have a conversation with Miss Le Hars in regard to how loud Miss George is in the office as I was not sure how to address this without creating offence. Miss Le Hars responded that everyone in the office shouted and no further comment was made.

a. “This is a cuntish thing to do mate";

b. " I have not done anything in this company to deserve what you’re doing to me";

c. "This is fucking outrageous"; and

d. "This is bullshit what you’re doing Nathan".

These comments were made in the presence of other Celotti staff members.

Agreed – My actual statement was “this is a cunt act”, the rest is as I recall. I unreservedly apologise for my expletives. They were uttered under extreme duress, shock and anger.

After hanging up the phone to Mr Weygood, you then stated words to the effect of:

a. “Have fun in this shithole of a company girls” to Ms Nicole Le Hars and Ms George; and

a. Agreed – Again under extreme shock and duress

Agreed – However, it was requested I leave the building which I did immediately. I was not directed to not speak about this matter to staff at this point.

I need to now put into context the position of Miss George. Miss George has only been in the Darwin branch since the 7 December 2020. Up until I was stood down, I have only interacted with her for approximately five weeks due to leave taken over the period. Also, throughout this period she has worked on other jobs which have had nothing to do with me, the only involvement I have had with her has been when actually working on my jobs. When Miss George first got to Darwin and commenced work, for the period leading up to Christmas I went out of my way morning and afternoon to collect her from her home and get her to work as the vehicle she had was not working. I did my utmost to make her feel welcome and valued. The first thing Miss George did when she commenced work in the Darwin Branch was too bad mouth her colleagues from Brisbane including Mr Weygood. Comments about how bitchy they were, how glad she was to be out of that environment and here. I assured her that I would not stand for any of this sort of behaviour in this office and that it simply would not occur. She also stated that she had felt bullied by Mr Weygood as she had commenced as a casual in the Queensland office so that she could undertake the necessary packing etc to move to Darwin and did not have access to a vehicle. Mr Weygood was constantly ringing her and insisting she come to work and that he would pick her up, she felt that this was being bullied. I also advised that I was there for her and if she had any issues, she could not cope with I would be happy to assist her by talking to Management if necessary. Miss Le Hars reiterated to her that I was a caring and constructive manager and that she had not had any issues with me and that I had on occasion gone to management, all be with it to not avail, on her behalf.

I would now like to bring to your attention serious concerns with regard to the bullying conduct I have received from My Weygood and Mr Celotti. On Friday 23 October I was called into a meeting by Mr Weygood and Mr Celotti after I had refused to sign the new commission structure, I was sat into the meeting next to Mr Celotti and Mr Weygood was present via Teams. Mr Weygood brought up a document on a shared screen which was too small to be read. I requested that he forward me the document so I could read it, this did not occur until after the meeting. He then proceeded to read the document to me verbatim without a copy I could refer too, at any time I attempted to make any form of statement or question I was yelled at by Mr Celotti. “Just let him speak, just let him finish”. I became increasingly distressed and frustrated by not being allowed any right of reply. I burst into uncontrollable tears of frustration which I was unable to stop. This included going from this meeting straight into a general Friday team meeting and I sat crying the entire way through, finally walking out of the room in tears towards the end of the second meeting. My tears of frustration were unstoppable for over two hours following this disgusting episode. I have also had to confront Mr Celotti with regard to the way he has spoken to me in the office, several times. When he rang to speak to me after work hours, I asked him if he had any issues with me, he stated no. I then told him I did not expect to be yelled at like a small child in the office in front of my colleagues. He apologised.

I also find Mr Weygood’s interactions with myself and other staff whereby he has stated “you have girl brain, you would not understand”, “put a muzzle on it”, “thank you beautiful” totally unacceptable.

I have been working for Mr Celotti since July 2018 and until Mr Weygood commenced have had no issues with either management or other staff, building solid relationships with all. This has included training and mentoring junior members and working collaboratively with no issues with all others. Further to this I have had no issues with any of my clients or candidates.

These contrived allegations are simply repugnant.

Yours faithfully,

Roslyn Claydon
(redacted).”

Witness statement of Charlotte George

[77] Ms George, Recruitment Coordinator for the Respondent, provided a witness statement in these proceedings, and was cross examined on her evidence in Darwin.

[78] Ms George noted that she relocated to the Northern Territory in November 2020, and had previously been based in the Queensland office. In her role as Recruitment Coordinator, she filed job orders as they come in, including locating candidates, screening them, interviewing them and organising medicals.

[79] Ms George stated that on commencement in the Queensland office, her only interaction with the Applicant was via email, virtual team meetings and phone calls. She noted a few occasions where the Applicant spoke to her in a manner that made her uncomfortable, including the Applicant calling her and shouting that Ms George had done a job wrong. She said the Applicant also told her that opening an email to a client with ‘Hey’ was unprofessional and that she should have used ‘Hi’.

[80] Ms George stated her initial view of the Applicant was that she needed to watch what she did and said in the Applicant’s presence, as she felt the smallest issue would make the Applicant angry. Ms George said this was difficult to deal with.

Darwin office

[81] Ms George commenced work in the Darwin office around 7 December 2020, and was required to interact with the Applicant on a daily basis and shared the same office environment. Ms George said that her first impression was “perhaps the Applicant was paying such close attention to [her] because [she] was new, and [the Applicant] had a motherly nature”.

[82] She noted that the Applicant would make comments to the effect of “the company was screwing me over”. Ms George said she was new to Australia and not aware of how employment laws operated in the country. She stated however that after a few weeks, it became apparent that the Applicant was negative about the business in general, and in particular about Mr Weygood. Ms George noted the Applicant had made comments about intending to be put in charge of the Darwin office, but that Mr Weygood was then hired as the Respondent’s General Manager, and she formed the view that the Applicant did not like Mr Weygood as the Applicant had stated that he “got the job she wanted”. Ms George gave evidence that the Applicant was consistently rude and negative about Mr Weygood, and there was constant tension between them in meetings. She said the Applicant, (located in Darwin during the meetings) would make inappropriate statements under her breath including that Mr Weygood was a “fucking wanker” or would make comments about him such as “Look at his pants, a real man would have a bulge”.

Comments about other staff

[83] Ms George also gave evidence regarding the Applicant’s negative comments about other staff members. She stated the Applicant would often hear rumours about new staff before they started, and would tell other staff members in the office about the rumours she had heard. Ms George said that the Applicant referred to a payroll staff member as a “fucking idiot” and said that she could do a better job than him.

[84] In relation to an interview of an employee, that was to be conducted by the Applicant, but was taken over and conducted by Ms George and Ms Le Hars, Ms George said that when the Applicant asked about the candidate she advised they were very shy. She said that the Applicant replied to the effect of “that is because she is indigenous, and you are white and intimidating”, which she said made her very uncomfortable due to the Applicant’s ‘very direct’ tone.

[85] Ms George also gave evidence that the Applicant spoke about Ms Le Hars, saying she used to cry every time she was asked to do something, but then said to Ms Le Hars (in front of Ms George) directly words to the effect of: “when you first started at least you had some character about you Nicole and were capable of performing tasks I needed”. Ms George stated this also made her uncomfortable as it was contradictory to what the Applicant had told her earlier, and she did not consider it appropriate for the Applicant to have made such comments to her.

Control of discussions in the workplace

[86] Ms George noted that she and Ms Le Hars shared an office with the Applicant, and she said that it was a tense environment where the Applicant would regularly snap at them for talking. However, she stated that if the Applicant was involved in a discussion, “it was okay to talk”.

[87] Ms George said she had heard the Applicant mumble things under her breath and make comments about her including “Charlotte is always faffing about” or “Charlotte is annoying me today”. She stated that her colleagues, Ms Le Hars and Ms Davidson, would confirm such comments being made by the Applicant about her.

[88] Ms George said that she was scared to do anything, including talking about non-work related things, knowing the Applicant would criticise her.

Engineer Recruitment Job

[89] Ms George said that around Christmas 2020, the Applicant went on a period of leave and left her a list of jobs to complete, including sourcing Crane Engineers for a client (name redacted).

[90] Ms George said she had not previously done work of this type, and she followed exact instructions left by the Applicant. She said that after she found the candidate that matched all of the requirements, she told Mr Celotti that she wanted him to check the work given she was not familiar with the specificities of a Project Crane Engineer. Her evidence is that Mr Celotti reviewed her work and agreed she had identified an appropriate candidate, and encouraged her to submit the candidate’s details.

[91] However, Ms George stated that when the Applicant returned to work in January 2021, she kept muttering words to the effect of “fucking Adrian”. Ms George asked the Applicant what had happened, and she said the Applicant complained about her choice of candidate stating words to the effect of “he doesn’t have this experience” and “he doesn’t have enough qualifications”. Ms George said she explained that she had followed the bullet points provided by the Applicant, and that the candidate met the description. Ms George said her view was that the Applicant did not fully understand what the job required either, as she questioned the Applicant about her AutoCAD and the Applicant was unable to provide a straight answer.

[92] Ms George said the Applicant continued to complain about her choice of candidate for 15 minutes, and when she stood up for herself the Applicant replied “It’s not your fault, Adrian shouldn’t have let you do it”.

[93] Ms George said she felt belittled and embarrassed, and she was further impacted by the Applicant saying the relationship with the client had been “completely ruined”. Ms George’s evidence is that the Applicant told her the client had said the relationship was ruined and had asked the Applicant words to the effect of “why are you sending us this shit. You have never done this before. What has happened to your office”. Ms George stated the Applicant should have dealt with this in a more appropriate manner by having a discussion with her about what had been done incorrectly, and what would be required in the future.

[94] Ms George said the Applicant made her feel inadequate through the actions and comments on this matter.

January 2021

[95] Ms George stated that in or around 15 January 2021, the Applicant advised her to urgently prepare two contracts prior to the Applicant leaving for the day. She said the Applicant then took a phone call and provided no fulsome details about what was to be included in the contracts. Ms George said that she prepared the documents as best she could, based on information at hand. She said the Applicant kept saying words to the effect of “Can’t you hurry up?”

[96] Ms George said she printed off the contracts, but they contained errors she needed to fix. She noted the Applicant was in a telephone call, and could not provide her with any assistance. She said that when the Applicant got off the phone, she said “Nicole wouldn’t make mistakes like this”. Ms George noted the Applicant had not provided enough information, and had made her feel panicked about the task.

[97] Ms George said that she said words to the effect of “Ros can you please stop making these comments, they’re making me feel upset and putting me down and I don’t like them”, to which the Applicant replied to the effect of “You must feel frustrated because you are making so many mistakes”. Ms George said she felt upset, as she had done her best to “call out the behaviour of the Applicant”, and the Applicant’s comments were unfair, rude and belittling. Ms George noted that if the Applicant had provided her with accurate and detailed information about the task, there would not have been an issue.

Client uniforms

[98] Ms George recalled a dispute with the Applicant about the correct uniform for candidates at the client (name redacted). She said the Applicant directed she seek clarification from the client, which she agreed this was a logical solution. Ms George therefore contacted the client, who confirmed Ms George’s interpretation as correct. Ms George said however the Applicant still disagreed with her, and insisted they go with the uniform she suggested.

[99] Ms George said following this, the Applicant kept bringing up the issue and telling Ms George why they had to do it her way and why she was right. Ms George said this was an example of the Applicant making it difficult for Ms George to voice her own opinions.

Client documents

[100] Ms George said that if she disagreed with the Applicant, she would be treated more negatively than normal. As an example, Ms George said she had worked on a matter for the client (name redacted), which the Applicant had not been involved in. However, the Applicant told Ms George she had prepared the paperwork incorrectly, and should do it the Applicant’s way.

[101] Ms George stated that the client was provided the paperwork prepared in the Applicant’s advised manner, and the client advised it was too much documentation. She said the client effectively directed them to remove everything she had already told the Applicant was not required. However, she said she did not say anything at the time as she was worried about the Applicant’s reaction.

[102] Ms George said the Applicant subsequently returned to the office in a negative mood, using an aggressive tone of voice. She was later told by Ms Davidson that the Applicant had said words to the effect of “Charlotte does not know what she is talking about and does not listen”.

[103] Ms George said she telephoned Mr Weygood to discuss her concerns with the Applicant’s workplace conduct and to seek his advice. She confirmed that she subsequently put in a formal complaint.

Events of 27 January 2021

[104] Ms George stated that she witnessed a phone call between Mr Weygood and the Applicant. She said the discussion appeared normal at first, however the Applicant’s face then dropped. She said the Applicant said words to the effect of “I don’t understand” and “I need information”. Ms George said the Applicant then got angry and raised her voice saying words to the effect of:

“this is fucking outrageous”;

“this is a fucking joke”;

“what you are doing is cuntish”;

“I have not done anything wrong”; and

“this is bullshit what you are doing Nathan”.

[105] Ms George said that following the phone call, the Applicant told her and Ms Le Hars that serious allegations had been made about her, and that she had been stood down on full pay. Ms George said to the best of her recollection, she and Ms Le Hars stayed silent throughout this incident.

[106] Ms George said that before the Applicant left, she re-entered the office where Ms George and Ms Le Hars sat, and said words to the effect of “enjoy this shithole of a workplace” and that she was “going to a lawyer as it wasn’t fair that she had been stood down on full pay”.

[107] She said that after speaking to them, the Applicant left the room and walked to the separate office where Mr Mark Oliveira and Ms Davidson work. Ms George noted that while she could not hear the full extent of their discussion, she did hear the Applicant say that she was going to see a lawyer.

[108] Ms George’s evidence is that she was scared, as she did not know what would be said to the Applicant or if she was aware Ms George had raised the concerns.

Witness statement of Nicole Le Hars

[109] Ms Le Hars, Recruitment Administrator for the Respondent, filed a witness statement in these proceedings. Ms Le Hars is responsible for all paperwork required for sourcing and preparing candidates for a role, including completion of forms, reference checks and compiling interview notes.

[110] Ms Le Hars stated that she had worked with the Applicant for approximately two years. She noted the Applicant was initially responsible for training her and approving her work before it was sent to clients. She said the Applicant’s treatment of her varied day to day “depending on her mood”. Ms Le Hars said that the Applicant would sometimes be friendly and supportive, but if she was in a bad mood she would make negative comments about Ms Le Hars’s work ethic.

[111] Her evidence supported Ms George’s evidence that the Applicant would tell them to stop talking and tell her that her work was not good enough. Ms Le Hars said this negative behaviour would occur a few times a week.

[112] Ms Le Hars said the Applicant’s general attitude and demeanour in the workplace, and her comments towards Ms Le Hars and her colleagues, made her very uncomfortable. She recalled an occasion where she cried on the phone to the Applicant, and she said that since then the Applicant had consistently mentioned that to new employees. Ms Le Hars said the Applicant would laugh about her having cried and say that she ‘fixed her’ and used her as an example of ‘what not to do’.

[113] Ms Le Hars said the Applicant had said to her “your mum is a bitch”, and had also commented on her weight and appearance saying words to the effect of:

“you look sick today”;

“you look white and pasty”;

“you have lost heaps of weight”; and

“you did eat a lot didn’t you”.

Ms George

[114] Ms Le Hars confirmed that Ms George commenced in the same role as her, around December 2020, and they both interacted with the Applicant on a daily basis. Ms Le Hars’s evidence is that the Applicant appeared to “significantly dislike” Ms George, and would compare the two of them saying that Ms George was not good enough.

[115] Ms Le Hars’s evidence supported Ms George, stating that when they engaged in a conversation without the Applicant, they were told to be quiet. She said that they were not allowed to talk unless the Applicant was part of the conversation.

January 2021

[116] Ms Le Hars recalled in mid-January 2021 that the Applicant was in a rush to go home from work, and asked Ms George to write up two contracts urgently. She confirmed the evidence that when Ms George printed off the contracts the Applicant got angry and said “this is wrong, fix it again”. Ms Le Hars noted Ms George become flustered in completing these tasks, and that the Applicant made a comment that Ms Le Hars would ‘never make those mistakes’. Ms Le Hars’s evidence is that Ms George became quiet and said words to the effect of “That hurt my feelings and I would rather not have you say those things”. She said that to the best of her recollection, the Applicant replied “okay” and apologised to Ms George.

Relationship with management

[117] Ms Le Hars confirmed that staff meetings were conducted by Teams, (between Brisbane and Darwin) which she said took place each day and a longer meeting on Fridays. She said that all staff attended, including Mr Adrian Celotti, Director.

[118] Ms Le Hars recalled an occasion where Mr Celotti was not present, and the Applicant said words to the effect of “you are a fucking wanker” under her breath. Ms Le Hars understood the Applicant was referring to Mr Weygood, as she said this directly after he made a statement to her. Ms Le Hars recalled other occasions where the Applicant would mutter under her breath, generally when she had disagreements with Mr Weygood. Her evidence is that the Applicant and Mr Weygood did not have a good relationship, they would often disagree in meetings and the Applicant would use an argumentative tone when talking to him. Ms Le Hars said that the Applicant used a similar tone in her discussions with Mr Celotti when he disagreed with her. She did not recall the Applicant ever swearing at or about Mr Celotti, rather she used a ‘stubborn tone’ with him.

Stand down from employment

[119] As to the day the Applicant was stood down, Ms Le Hars said that the Applicant and Ms George were already at work when she arrived. She said that the Applicant was on the phone when she arrived, and she was not present for the duration of the conversation but did recall the Applicant making statements to the effect of:

“I don’t understand what is happening”;

“This is a cuntish thing to do mate”;

“I have not done anything in this company to deserve what you’re doing to me”;

“This is fucking outrageous”; and

“This is bullshit what you’re doing Nathan”.

[120] Ms Le Hars’s evidence is that when the phone call ended, the Applicant looked straight at her then at Ms George and said “What have I done?”. Ms Le Hars said she went very quiet and did not want to say anything as the Applicant was already angry. She said the Applicant said words to the effect of “have fun in this shithole of a company girls”, then went into the accounts office and spoke to the employees there.

Witness statement of Vilisi Malaeimi

[121] Ms Malaeimi, Business Development Manager for the Respondent, filed a witness statement in these proceedings. Ms Malaeimi is responsible for business management, managing clients, and recruitment, and worked with the Applicant for approximately two years.

[122] Ms Malaeimi stated that the Applicant was the counterpart to her role, meaning they would speak on a daily basis about work and clients. She gave evidence that they had a good relationship, as they were on the same seniority level, frequently discussed clients, and “personally got along well”.

[123] Ms Malaeimi noted she could not speak to the Applicant’s interaction with staff in the office, as the Applicant was based in another State. However, she noted that during Microsoft Teams meetings between the two offices, the Applicant’s general demeanour towards other people was “very abrupt”. She also gave evidence that the Applicant would frequently complain to her about other staff members, and make inappropriate comments about management. She said that the Applicant would often raise issues regarding Mr Celotti’s management style and the commission structure, and if the Applicant and Mr Celotti had a disagreement about work related matters, the Applicant would then call Ms Malaeimi to say they had a “blow up” and describe the disagreement. She agreed in cross examination that the Applicant’s criticism to her, regarding the business, Mr Celotti and Mr Weygood could be taken as two colleagues of similar seniority engaging in private discussions.

[124] Ms Malaeimi observed that the Applicant’s complaints about Mr Celotti were largely work related, and related to issues she had with his management style. She also stated that the Applicant consistently made comments about Mr Weygood. In this regard, Ms Malaeimi understood that on commencement, Mr Weygood had taken over management of the Applicant’s role from Mr Celotti. Her evidence is that the Applicant had a deep dislike for Mr Weygood which appeared to be more personal than professional.

[125] Ms Malaeimi said that the Applicant had preconceived ideas about Mr Weygood, which the Applicant said were based on information she received from someone who used to work with him. Ms Malaeimi said the Applicant had also stated she felt just as qualified to take on Mr Weygood’s role, and that she had more experience.

[126] Ms Malaeimi said the Applicant was consistently abrupt towards Mr Weygood, and her demeanour towards him was overly aggressive. She said that the Applicant would be standoffish towards him in meetings, and following meetings the Applicant would call her and say words to the effect of:

“what the fuck was that”;

“how do we justify his salary”;

“he has no idea”; and

“he shouldn’t be in the business”.

[127] She said the Applicant would also describe Mr Weygood as a “fucking misogynist” and “disgusting cunt”. Ms Malaeimi also gave evidence that the Applicant made comments about other staff, including saying that a staff member had “mental health issues” or was a “little bitch”.

[128] As to the Applicant’s stand down, Ms Malaeimi noted she was not present that day, but said that the Applicant telephoned her shortly after. She said that as she was working, she did not answer the call. Her evidence was that she has not spoken to the Applicant since, however the Applicant has tried to call her on two other occasions following her stand down from work.

Witness statement of Hilary Davidson

[129] Ms Davidson, Accounts Officer for the Respondent, filed a witness statement in these proceedings. Ms Davidson commenced with the Respondent around December 2020, and had only worked with the Applicant for approximately three weeks, at the time of the Applicant being stood down.

[130] Ms Davidson said that she had occasional discussions with the Applicant regarding payroll and account matters, and the Applicant was never rude to her personally. She stated however that she observed the Applicant’s general attitude in the office made people uncomfortable and staff were on edge around her. Ms Davidson’s evidence confirmed that the Applicant had a negative attitude towards Mr Celotti and would consistently make comments about him in the office. As an example, Ms Davidson gave evidence that the Applicant made a comment to the effect of:

“Adrian is all about the money and doesn’t care about the staff. He drives us to the bone. He doesn’t pay overtime”.

[131] Ms Davidson said the Applicant would also make comments to her about other recruitment employees saying “they never do their work properly”. She said that the Applicant’s attitude was particularly negative towards Ms George. She gave evidence that the Applicant would make statements to the effect of:

“Charlotte is not doing things the way I want”; and

“Charlotte does not follow instructions as told”.

[132] She also recalled the Applicant rolling her eyes behind Ms George’s back after she had spoken.

[133] Ms Davidson said that as she sits in a different office, she did not hear the Applicant’s stand down conversation with Mr Weygood. She did recall the Applicant raising her voice and swearing. She said the Applicant then ‘marched’ into her office and said words to the effect of:

“I have just been stood down with full pay by Nathan and he will not give me a reason as to why, this is absolutely outrageous. I have no idea what I have done wrong!”

[134] She said the Applicant then paused to see if she knew what was happening, but she said nothing save for words to the effect of “We don’t know Ros, we haven’t heard anything”. She said the Applicant then made a comment that she had done “nothing but work [her] butt off for this company and have no idea what [she had] done to warrant this” and said she was “off to see a lawyer”. Ms Davidson confirmed that the Applicant then left the office. She stated she had not had any interaction with the Applicant since that time.

Summary of the Respondent’s submissions

Standing down the Applicant

[135] The Respondent submitted that on or around 21 January 2021, they were made aware of serious allegations regarding the Applicant’s workplace conduct. Having received and considered these allegations, the Respondent noted that they made the decision to stand the Applicant down on full pay until such time that the allegations were properly investigated.

[136] The Respondent argued that they attempted to make contact with the Applicant prior to work commencing on Wednesday 27 January 2021, but the Applicant did not answer. The Respondent stated that this meant that they were required to inform her of the stand down direction once she had arrived at work.

[137] The Respondent submitted that the Applicant returned the call once she had arrived at work, and was informed that serious concerns had been raised regarding her workplace conduct. The Applicant was further informed that while a process was underway to consider those concerns, she was directed not to work, and it was made clear that she would continue to be paid during this period.

[138] The Respondent submitted that the Applicant was directed to leave work immediately and not discuss the matter with her colleagues. Following this, the Respondent said that the Applicant made various obscene and argumentative statement to Mr Weygood including:

“This is a cuntish thing to do mate”;

“I have not done anything in this company to deserve what you’re doing to me”

“This is fucking outrageous”‘ and

“This is bullshit what you’re doing Nathan”.

[139] It was submitted by the Respondent that despite being lawfully and reasonably directed to leave work immediately and not discuss the matter with other staff, the Applicant also made statement to other staff immediately or shortly after the call to the effect of:

“have fun in this shithole of a company, girls”; and

“I have just been stood down with full pay by Nathan and he will not give me a reason as to why, this is absolutely outrageous! I have no idea what I have done wrong. I have done nothing but work my butt off for this company and have no idea what I have done to warrant this. I am on my way to see a lawyer.”

[140] In addition to this, the Respondent stated that the Applicant also walked into a separate office to tell other staff what had occurred, rather than complying with the direction to leave the office immediately.

Serious Misconduct

[141] The Respondent submitted that the Applicant had not provided any evidence or supporting documentation that would indicate that she was not guilty of serious misconduct and further, she had admitted to gross insubordination.

[142] It was submitted by the Respondent that when determining serious misconduct, the Respondent was only able to consider the facts that were available at the time of dismissal save for relevant conduct on advising of the stand down. The Respondent stated that any later responses or documentation provided by the Applicant was not available for the Respondent to consider and therefore should not be considered when determining whether the dismissal was harsh, unjust or unreasonable.

[143] The Respondent submitted that in the circumstances, they were confident that the complaints raised regarding the Applicant were true and correct, based on all facts available at the time of dismissal.

The Applicant

[144] In closing submissions, the Respondent submitted that the Applicant was belligerent and hostile when questioned regarding her behaviour. The Respondent argued that, during the hearing, the Applicant gave testimony to the Commission in respect of the letter of 30 January 2021 from Ms Claydon to Mr and Mrs Celotti. The letter had been prepared prior to the date for the Applicant’s response but not sent. Under cross examination she admitted claiming she had “never made disparaging comments about Mr Celotti”. 8 The Applicant then in the very same document went on to make at least 3 disparaging comments about Mr Celotti.9

[145] It was further argued that in the same document, the Applicant’s evidence under cross examination was inconsistent with the statements that she said “I have never made comments to other staff about perceived mistakes made by Ms George as she has not made any other than the contracts mentioned above;” 10 and “I have never made belittling comments about her personally or about her work ethic.”11 The Applicant then in the very same document went on to do exactly that on at least two occasions.12

[146] Further, the Respondent argued that the Applicant gave evidence under oath that she did not ever make comments about other employees in the office. 13 However during cross examination, she admitted that she did do so in the same testimony.14

[147] The Respondent considered that under cross examination, the Applicant was combative and argumentative, 15 which was consistent with the evidence of other witnesses and regarding her workplace conduct.

[148] The Respondent submitted that suspending employees to investigate concerns of a serious nature is often required in workplaces. What doesn’t happen often is the nature of the Applicant’s reaction and response in this case. The Applicant’s conduct when she was told of the concerns that needed to be investigated was quite extreme. The Respondent submitted that the Applicant’s language was foul and her disrespect palpable by her own admission. 16 This conduct it was argued, falls within the definition of serious misconduct in the Fair Work Regulations 2009 (Cth)17 and in itself warranted summary dismissal.

[149] The Respondent submitted that the Applicant denied being directed not to talk to staff although the correspondence sent to her after her suspension repeated this direction and the Respondent considered that it was unremarkable that such a direction is given in these situations. Nonetheless the Applicant admitted that she was directed that she was stood down “immediately” 18 and that she was told to leave the building.19

[150] Nonetheless, the Respondent noted that the Applicant did not immediately leave the building. Instead, she made time to stop off and talk to a number of employees to make further critical remarks about her employer. It was submitted that this was clearly a breach of a lawful and reasonable directive, consistent the definition of serious misconduct in the Fair Work Regulations 2009 (Cth) 20 and in itself warranted summary dismissal.

[151] The Respondent also noted that the Applicant’s representative made much mention about the direction not to speak to staff being questionable. The Respondent submitted that Mr Weygood’s testimony should be believed over the testimony of the Applicant, whose credit was substantially and repeatedly diminished throughout the hearing. Further, the Respondent submitted that the Applicant had an opportunity to reject this allegation. In fact, she even received an extension of her opportunity to reject this allegation. She did no such thing. The decision maker is not required to ensure that the opportunity is taken up by the employee. The Respondent stated that responses provided at the time of an unfair dismissal application are clearly made too late to be considered in making that decision, to suggest otherwise is nonsensical.

[152] The Respondent argued that the Applicant’s credibility was further undermined by saying she knew nothing of Mr Weygood prior to his commencement with Celotti. This was disputed by Ms Malaeimi who the Respondent submitted was a more credible witness. Together with the evidence that the Applicant thought she was to be “put in charge of the Darwinites” and instead Mr Weygood became her boss. This is also demonstrative; it was submitted that the Applicant had a negative attitude to Mr Weygood, from when he commenced employment with Celotti.

[153] In regard to the Applicant’s mitigation of loss and job applications, the Respondent submitted that the Applicant attempted at first, to deny that her LinkedIn account that had not been updated. Then she went on to blame the unfair dismissal proceedings for not updating the profile when she had an obligation to mitigate her loss by looking for work. Further she went on to make a completely inappropriate remark which was consistent with her alleged conduct sarcastically stating that perhaps she should update her LinkedIn profile to say “Or at the moment, I just put shafted and looking.” 21

[154] The Respondent said that the Applicant under oath avoided questions about her alleged deletion of the Respondent’s business LinkedIn Page. This was an important business page for the Respondent, given they are a recruitment firm, and it was deleted for some three months after the Applicant’s employment had ended. In relation to the Applicant’s vague explanation about how the page was deleted, the Respondent argued that this deceitful behaviour goes to the pattern of conduct of the Applicant, and her credit. Further, the conduct of not updating her LinkedIn profile supports her failure to mitigate her loss and is relevant to the consideration of remedy.

Vilisi Malaeimi

[155] The Respondent said that the Applicant’s evidence was inconsistent throughout the hearing, when asked whether she would make comments about other employees, she answered that she would not ever make comments about other employees. However, later in testimony the Applicant admitted that she would ring Ms Malaeimi on occasion to make comments regarding Mr Weygood.

[156] The Respondent submitted that the Applicant admitted to making comments to Ms Malaeimi after meetings such as “What the fuck was that”, and possibly “He shouldn’t be in the business.”

[157] The Respondent said that the Applicant believed that it was appropriate to have such conversations with other colleagues, and make these kind of statements.

[158] Ms Malaeimi had agreed, quite candidly, that these discussions with the Applicant were a joint conversation. However, the Respondent argued that Ms Malaeimi was quite adamant that the Applicant would frequently complain to her about members of staff, and had referred to Mr Weygood as a “fucking misogynist” and a “disgusting cunt”.

[159] The Respondent noted that Ms Malaeimi was unable to remember the exact details of when the Applicant made such statements to her, but submitted that Ms Malaeimi was quite clear that she remembered them having occurred. However she explained that as these statements were not directed at her, she could not recall the exact day of such.

[160] The Respondent put forward that Ms Malaeimi was consistent in her statements. She provided information that could be damaging to herself and her position with the Respondent Company. Other than Mr Weygood, she was the only witness still employed by the Respondent Company and admitted to conduct that could damage her relationship with the Company, and separately with the Applicant. As such, the Respondent submitted that significant weight should be given to Ms Malaeimi’s statements and the candid nature in which she provided them, with some detriment to herself.

Hilary Davidson

[161] The Respondent submitted that Ms Davidson was only briefly examined by the Applicant’s Representative with a significant portion of this time related to how long Ms Claydon was on leave for during the period of January 2021. The Applicant’s representative stated that this witness had only worked with the Applicant for a short period.

[162] The Respondent noted that Ms Davidson was no longer employed by the Respondent Company and had, only the day before, started a new role with another Company. As such, the Respondent submitted that there was no benefit to be gained from Ms Davidson failing to be honest in her statements.

[163] However, the Respondent noted that the only inconsistency in Ms Davidson’s statement during examination and that provided in her written statement was in relation to the term “lunchroom” and the differing assessment of the lunchroom. However, the Respondent says this was clarified by Ms Davidson when she put forth that she would enter the open plan office area to eat her lunch at an empty desk and referred to this area as the lunchroom.

[164] The Respondent submitted that Ms Davidson remained consistent in her responses. For example, when Ms Davidson was asked questions which she would not have the knowledge to answer, such as whether other staff are entitled to overtime, she recognised that this was something she had heard the Applicant say, not her own opinion or words.

[165] The Respondent noted that Ms Davidson pointed out that the Applicant used the company vehicle to give Ms George a lift to work, and the Applicant’s representative argued that this was representative of the Applicant’s consideration for Ms Davidson. However, it was unclear if the Applicant was directed to do so and therefore little could be made from this point.

[166] The Respondent submitted that no negative inference can be made against Ms Davidson. The Respondent said Ms Davidson’s statements were consistent throughout the hearing with those she had given prior and given she had no remaining ties to the Respondent Company, had no reason to be disingenuous about the Applicant. As such, the Respondent submitted that Ms Davidson’s statements regarding the Applicant’s behaviour, particularly her negativity in the workplace towards Ms George, should be given significant weight.

Ms Le Hars

[167] The Respondent submitted that Ms Le Hars was no longer employed by the Respondent Company at the time of the hearing and there was no benefit for her to be untruthful in her statements.

[168] The Respondent noted that Ms Le Hars admitted to having both a close professional and personal relationship with the Applicant. Ms Le Hars had seen the Applicant as something as a mentor to her, someone she would seek advice from about personal and professional matters, someone she trusted, and someone who’s opinion she valued.

[169] Despite this, the Respondent submitted that Ms Le Hars’ statements at the Hearing were quite damaging to the Applicant’s case.

[170] The Respondent said that Ms Le Hars clearly recalled that the Applicant had laughed at the fact that she had cried at work but was unable to recall the exact time this happened. Considering that Ms Le Hars and the Applicant worked together for two years, the Respondent submitted that it is not unexpected that Ms Le Hars could not remember the exact date of this incident.

[171] The Respondent noted that Ms Le Hars was adamant that, on more than one occasion, the Applicant would either speak about her or negatively compare others to her. The Respondent submitted that this demonstrated a consistent pattern of behaviour by the Applicant where she would compare co-workers against others and hold them out as examples in a belittling way.

[172] The Respondent submitted that Ms Le Hars was a truthful witness, who was placed in quite a difficult position due to her longer relationship with the Applicant. The Respondent submitted that Ms Le Hars had ‘demonstrated maturity beyond her years’ in the concessions she was willing to make, and her evidence should be given significant weight in this matter.

[173] The Respondent said that Ms Le Hars was questioned on the incident that occurred on 15 January 2021, which related to the printing of contracts. The Respondent submitted that Ms Le Hars said that she knew the Applicant was angry, as it was evident in the tone the Applicant used.

Ms George

[174] The Respondent submitted that Ms George’s evidence that she had not updated her LinkedIn profile is irrelevant. According to the Respondent, there is a clear distinction between Ms George’s situation and the Applicant’s because, unlike the Applicant, Ms George left the Respondents employ sometime after the Applicant and Ms George already had another job, and therefore was not reliant on her LinkedIn profile.

[175] The Respondent said Ms George gave evidence that she had quite a bit of experience as a recruiter both in the UK and in the Brisbane office. The Respondent submitted that there was no evidence put before the Commission that there were any problems with Ms George’s performance until she started working in the Darwin office with the Applicant.

[176] According to the Respondent, Ms George’s testimony demonstrated that the Applicant engaged in repeated conduct that, humiliated, demeaned, micro-managed and belittled Ms George. Ms George’s testimony that the Applicant burped in her face and laughed on multiple occasions was also credible, even when she was challenged on this multiple times under cross examination, Ms George’s evidence remained consistent. The Respondent submitted that this conduct of the Applicant alone constitutes serious misconduct within the meaning of the Fair Work Regulations 2009 (Cth).

[177] The Respondent submitted that despite the fact that Ms George was unable to remember exact dates, her evidence that the Applicant regularly made disparaging remarks about Mr Olivera was credible and consistent with evidence of both herself and others in relation to the Applicant’s regular conduct.

[178] The Respondent submitted that the Commission should have a level of confidence in Ms George’s evidence as Ms George no longer worked for the Respondent and had nothing to personally gain from giving evidence in any particular way other than to be truthful. According to the Respondent, Ms George’s evidence was credible and painted a picture of the Applicant’s conduct consistent with the other witnesses.

Mr Weygood

[179] Mr Weygood provided his evidence by video link, from Brisbane. The Respondent submitted that Mr Weygood’s evidence was in direct opposition to the evidence of the Applicant. According to the Respondent, the Applicant gave evidence that after admitting to a barrage of disrespectful and foul language to her Manager Mr Weygood, she had immediately apologised. The Respondent submitted that Mr Weygood’s evidence was clear and confident that the Applicant had not apologised. Accordingly, the Respondent submitted that Mr Weygood’s evidence must be preferred to that of the Applicant. The Respondent said that there were numerous occasions, throughout the hearing, where the Applicant had contradicted herself or given evidence at odds with other witness evidence. The Respondent submitted that the Applicant’s evidence is not credible, and she lied and had never apologised to Mr Weygood. According to the Respondent, an apology is inconsistent with the Applicant’s unchallenged conduct following that call, during which she said numerous inappropriate things to Mr Weygood and staff in the office before she left the building.

[180] The Respondent said that the Applicant’s representative attempted to suggest that because the word ‘incompetent” was not used in any of the witness statements to describe Mr Weygood, that the Respondent had no place in substantiating and finding the allegations made against the Applicant. The Respondent submitted that in the absence of any response from the Applicant, and taking into account other witness evidence that demonstrated a clear course of conduct, it was entirely open to the Respondent to make findings on the balance of probabilities that the conduct occurred. The Respondent submitted that the Respondent’s allegations were substantiated, and that the conduct and allegations warranted summary dismissal when considered with the definition of Serious Misconduct in the Fair Work Regulations 2009 (Cth).

[181] The Respondent submitted that Mr Weygood’s evidence was substantially consistent, with the other Respondent’s witnesses and that an appropriate level of credit should be placed on his evidence. The Respondent concluded that the trust and confidence in the Applicant had been undermined by her actions.

CONSIDERATION

Section 387 of the Act

[182] It is necessary in considering whether the dismissal is harsh, unjust or unreasonable, to have regard to the matters in s.387 of the Act:

s.387(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)

[183] In assessing whether there was a valid reason for the Applicant’s dismissal, the reason must be ‘sound, defensible or well founded.’ 22 A reason which is ‘capricious, fanciful, spiteful or prejudiced’ cannot be a valid reason.23 Furthermore, ‘[T]he reason for termination must be defensible or justifiable on an objective analysis of the relevant facts.’24

[184] The onus is on the Respondent, in the current matter, to discharge that the conduct provided a valid reason for dismissal. On the balance of probabilities, in accordance with the principle established in Briginshaw v Briginshaw, 25where the context of the conduct having occurred, was also considered:

“The standard of proof remains the balance of probabilities but ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’ and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ …”

[185] In accordance with the principles set out in Edwards, 26 in considering ‘valid reason’, the first step requires a finding of fact, as to what actually occurred, which includes a consideration of the entire relevant factual matrix.27

[186] The Respondent submitted that summary dismissal was warranted, in the circumstances where there had been a series of complaints of workplace bullying, along with gross insubordination resulting from the Applicant’s inappropriate language and open disregard for management and her failure to follow lawful and reasonable directions. The Respondent maintained that the termination on that basis was not capricious, fanciful, spiteful or prejudiced. The Applicant’s conduct with other employees was unprovoked, unnecessary and damaging to the professional development of other employees.

[187] The Applicant’s conduct was compared with the serious misconduct, in the matter of IGA Distribution (Vic) Pty Ltd v Nguyen, 28 which involved an employee’s dismissal for a serious safety breach (in deliberately driving a forklift into another vehicle). The Full Bench in this case noted at [14]:

“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.

[188] Any assessment of the conduct must assess all of the circumstances, in considering the question of valid reason. In Qantas Airways Ltd v Cornwall, 29 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.”

[189] Whilst the Applicant bore the onus of proving that the dismissal was harsh, unjust or unreasonable, in cases of dismissal arising from alleged serious misconduct, the evidential onus of proof shifts from an Applicant to the Respondent. It is for the Respondent to prove whether the alleged conduct took place.

[190] The Respondent stated in their written submissions that the appropriate standard of proof is the balance of probabilities, in the context of s.387. The Respondent said that it is reasonable in that context, that the Applicant’s admissions and the Respondent’s informed conclusions were sufficient to substantiate serious misconduct had occurred.

[191] In this matter there has been a necessary finding of fact in regard to the range of conduct at the workplace. The second task requires a consideration of whether the Applicant’s actual conduct was of sufficient gravity to justify termination, and then termination for serious misconduct. In the circumstances, the evidence of her conduct supported the findings of the Applicant’s intimidation of other staff, her creating division between Brisbane based management and staff in Darwin, her open criticism of and demonstration of contempt for the management in Brisbane. This provided a valid basis that the Applicant’s employment in Darwin could not continue.

Gross insubordination

[192] The Applicant used foul language and openly criticised her manager during the standdown process. The Applicant’s use of obscene language towards the General Manager and breaches of the lawful and reasonable directions (not to discuss the matter with other employees and to leave work immediately), contributed to the dismissal of the Applicant.

[193] The Respondent also relied on the evidence regarding the Applicant’s insubordination on the standdown and during workplace meetings with Mr Weygood, (conducted via video) when the Applicant could be heard muttering insults under her breath in relation to Mr Weygood.

[194] Ms Le Hars stated in her evidence, that the meetings would take place daily, over zoom, with both the Darwin and Brisbane staff in attendance. She stated that at these meetings staff would discuss the workload and daily operations of the business.

[195] The Applicant’s evidence was inconsistent with the alleged comments, it was stated she made regarding Mr Weygood. When challenged by the Respondent’s representative, the Applicant admitted to making several inappropriate remarks about Mr Weygood to other staff:

“Have you ever referred to Mr Weygood as a - excuse my language - "fucking misogynist", to other people?---I have described him as a misogynist but it was not in the workplace. It was after work hours on a private telephone conversation with my counterpart in Queensland.

So that's another employee?---Correct, but it was an after-hours private telephone conversation.

It doesn't matter if it was after hours. I asked you a question earlier and the question was very clear: "Would you ever make comments about other employees in the office", and you told me no. But now you've just told me not only have you called Mr Weygood a wanker, but you've also told a colleague in the Brisbane office who also works for Celotti, who is also a colleague, that he is a "fucking misogynist"?---Misogynist was the word used.” 30

[196] The Applicant further conceded to often contacting Ms Malaeimi during work, following the daily meetings, in order to discuss Mr Weygood’s performance in the meetings. The following exchange occurred during cross examination of the Applicant:

“Do you admit that following meetings with Mr Weygood you would often call Ms Malaeimi and state words to the effect - excuse my language - "What the fuck was that"?---I allege that we would both on occasion - she would ring me on occasions, I would ring her and we would both express such.

"How do we justify his salary"?---I don't recall saying that.

"He has no idea"?---I think that's actually something Velissi said to me, that particular statement.

"He shouldn't be in the business"?---Again, either her or I could have said that.” 31

[197] The Applicant considered that some of the discussions were private exchanges between colleagues. However, the views expressed by the Applicant corroborate her critical comments about Mr Weygood and the management of the business, also made at the workplace.

[198] During cross examination, the Applicant further conceded to using the following inappropriate language to describe Mr Weygood:

“Would you describe the term, "cunt", as one that is sexist, inappropriate and misogynistic?---Yes.

You admit using it in respect to Mr Weygood's actions?---Yes.

I put it to you, Ros, that you're aware that using such language in the workplace is inappropriate?---Yes, it was a moment of - - -

That's just a yes or no answer, thank you. I also put it to you that you do use misogynistic and inappropriate language at times and that you have admitted to that in your own statement?---Correct.

I'll now take you to paragraph 153 of your second statement. You acknowledge that you've read Mrs George's statement, dated 22 April. Is that correct?---Yes.

Ms George has alleged that you've made statements regarding Mr Weygood, stating that he was - excuse my language again - "a fucking wanker." Do you deny this allegation?---I called him a wanker.” 32

[199] It was evident from the Applicant’s evidence, that she harboured particular disdain for Mr Weygood, whom was her direct supervisor. In assessing this relationship, it is important to note the geographical divide between the Darwin office, where the Applicant had been employed, and the head office located in Brisbane, where Mr Weygood was located. With the absence of any workplace superiors to the Applicant at the Darwin office, the Applicant was in a position of autonomy and expected to be independently responsible for her duties and conduct, and to provide an example as a senior employee to the other staff. In that context, she had made unchallenged, negative comments regarding Mr Weygood and his alleged lack of competence. The evidence was that she did little to mask her open dislike and professional disregard for him to other employees in the workplace. She expressed that she should have got his job.

[200] The evidence demonstrated that this conduct did occur, and in front of other staff. The Applicant conceded that a number of inappropriate comments were made by her, regarding Mr Weygood, to other staff members in Darwin. The Applicant’s conduct was particularly dismissive of Mr Weygood and his position. The behaviour and language used constituted defiance towards him and Mr Celotti’s management of the company.

[201] The comments and conduct of the Applicant in team meetings, actively sought to undermine the authority and management of Mr Weygood, with the Darwin staff. The conduct was divisive and was not commensurate with the professional relationship that was expected by Mr Weygood and Mr Celotti of the Applicant, with other employees.

Workplace bullying

[202] The Respondent submitted that there were complaints, regarding the Applicant’s bullying conduct, that exposed the employer to a risk to the mental and emotional health of the affected employees, as well as damage to the reputation of the business.

[203] The Applicant denied that she had engaged in ‘persistent workplace bullying, which created an imminent risk to the health and safety of Celotti staff’ and submitted that the Respondent has not produced any evidence capable of persuading the Commission that this occurred.

[204] The Respondent had argued that due to the nature of bullying claims, evidence is rarely tangible, as it would be in a case of theft, fraud or assault. The Respondent stated that rather, determinations of bullying are on the balance of probabilities, based on the statements made by affected individuals. The Respondent stated they were able to apply their own knowledge to the individual’s reports and the observed behaviours in considering the statements of complaint.

Fruit on the desk

[205] The Respondent alleged that one of the incidents, (demonstrating the alleged pattern of bullying behaviour) occurred when the Applicant had taken a piece of fruit from Ms Le Hars desk and ate it, despite Ms Le Hars protesting such.

[206] Ms George gave evidence that the Applicant had pointed to a banana on Ms Le Hars’s desk and asked “Can I have that?”. Ms George’s evidence was that Ms Le Hars looked uncomfortable and responded “No, this is my lunch”, to which the Applicant said “Well, it was from the fruit box and I am really hungry” and then took the banana and started eating it.

[207] Ms George stated that she recalled asking Ms Le Hars “how do you deal with this” regarding the Applicant’s treatment of them, and she responded “It doesn’t change, it has been like this for a year. Just do what she wants you to do”.

[208] During cross examination, the Applicant was challenged in relation to this incident, and conceded to taking the banana off of Ms Le Hars desk:

“Did you ever take fruit off Ms Le Hars' desk and state, "It was from the fruit box and I'm really hungry"?---I did eat a banana that was on Nicole's desk, yes. Adrian and Susie purchase fruit for the entire offices on a Monday and there is a communal fruit bowl and I grabbed the banana that was sitting on Nicole's desk.

So Nicole had taken that from the fruit bowl and put it on her desk. Do you believe it was appropriate behaviour for you to take it from her desk?---I don't believe it was inappropriate. It was a very simple matter of walking down into the lunchroom and getting another banana.

So why couldn't you do that?---I'm sorry, I went from meeting to meeting and didn't have the opportunity to.

So it was for someone else to go and run that errand, not you?---I just don't - - -“ 33

[209] The Applicant’s evidence demonstrated a lack of collegiate respect towards Ms Le Hars and failed to meet the standard that would be expected of someone occupying a senior position in the workplace. The incident on face value appears to be minor, but is intimidating behaviour and reflective of the concerns that the other Darwin employees and the employer held. The Applicant, on the evidence, generally exhibited a disrespectful attitude to other employees in the Darwin office and towards management.

Evidence of Ms George

[210] Ms George gave evidence that her desk was situated behind the Applicant’s, and the Applicant would regularly cough or burp on her in a way she felt was intentional. She said that she would give the Applicant a look to indicate she was upset and that the Applicant would laugh and say words to the effect of “yeah, I burped in your face”.

[211] The Applicant was challenged in relation to this conduct during cross examination, stating:

“Have you ever coughed or burped and made comment to Ms George to the effect of, "Yes, I burped in your face"?---That is absolutely disgusting. I can't believe that anyone would even write that down. Of course I have not.” 34

[212] However, when giving her evidence, Ms George maintained that this conduct had occurred, and stated the following:

“Quite a serious allegation?---Is it? I don't know. It's what happened, so that's why I've written it. It made me feel really uncomfortable, and it happened on one of the morning meetings as well, to which people did see.

It happened in morning meetings as well?---Just once, when we were all sat on chairs next to each other and she even responded when I turned around, yes I burped in your face and laughed, and I was like, how is that funny.” 35

[213] The evidence of this conduct was contested between the Applicant and Ms George, with neither person resiling from their position on the matter. What is clear, is that the relationship between Ms George and the Applicant was strained and tense, as on the evidence were a range of the Applicant’s other workplace relationships. There had been a significant lack of trust and confidence between the Applicant and Ms George. This conduct, as alleged by the Respondent, on the balance of probabilities occurred. It is consistent with the other behaviour by the Applicant (towards staff) that lacked respect.

Unnecessary oversight

[214] Ms George also gave evidence that she considered the Applicant engaged in controlling behaviour in terms of unnecessary oversight and supervision of her duties. Ms George stated that she felt that the Applicant was constantly watching over her shoulder to ensure she was completing her work. She said that she felt she was ‘walking on eggshells’, and that the Applicant had low expectations of her ability to perform even simple tasks, and her comments reflected this. Ms George also argued that the Applicant effectively micro-managed everything she did, including correcting grammar that was “not necessarily incorrect” but “simply not to the Applicant’s liking”.

[215] During the hearing, Ms George was challenged as to the veracity of this alleged conduct, stating:

“Sure. So, when the applicant provided you with advice about the appropriate was to communicate with a client, is this, you know, genuine feedback?---I think your use of advice is probably not appropriate, because it was more controlling than that, and it was never advising me how I could do something, it was do it this way or I'll react and make you feel uncomfortable and make you feel like you can't do it any other way.

Well, she never said that to you, did she?---No, that's how she made me feel.

That may be how you interpreted it, whatever feedback you're being provided, but she never said to you, do it this way or I'll make you - - -?---No, but she definitely said do it this way on many occasions. I had to use this word not that word and I had to make sure that she read over the email before I sent it and it had to be worded exactly how she wanted it.

Is that inappropriate behaviour?---Yes, because I have my own job to do, and she's not supposed to be controlling all of that. She gives me a task and I complete it. She's not supposed to tell me every single thing to do so that I'm not even - I shouldn't even have been doing the job, like I wasn't needed.

It's inappropriate for the applicant to ask to see your email correspondence before it goes out to the clients. Is that what you're saying?---What do you mean by inappropriate?

That it was not something that she was entitled to do in the course of her supervising you?---I don't think - no, because when I sought advice from Nathan, he thought that she was being way too controlling and that I should have been given a lot more leeway with the work that I was doing. So yes, inappropriate.

Well that, I'm sure you'll appreciate that Nathan's advice to you was probably prefaced on what you had communicated to him. But I'm trying to get to what your views are of the applicant's conduct and if you think it's inappropriate for her to ask to see the email correspondence that you are sending out to clients before it goes, keeping in mind that you've only worked with her for 22 days, I'm just asking you to identify that?---Okay, if we're just talking about emails, then okay, then she has a right to have a look at the emails.” 36

[216] The Applicant’s evidence in response to these allegations, was that she had to maintain oversight over work to ensure the quality of service that was provided to the clients. The Applicant referred to the fact that much of the correspondence was being sent to one significant client. It is also noted that this conduct had occurred in the context of Ms George being relatively new to the company, and the Applicant considering she was Ms George’s direct supervisor. Whilst the conduct was substantiated, weight was not attributed to this negative finding in regard to the Applicant reviewing the email correspondence. However, the manner in which the Applicant went about the task was shown to be unnecessarily domineering. In line with this, on a further matter the Applicant was shown to have intimidated and bullied Ms George to complete contracts without the adequate information or time to complete the tasks. In doing so, she openly compared Ms George negatively to other staff. The Applicant also conveyed that a client had threatened to leave the employer after Ms George undertook some recruitment, on specifications, that the Applicant had provided. The Applicant, without providing particulars, indicated that Ms George had not met the required specifications with the candidate and that Mr Celotti should have advised Ms George of such. The Applicant conveyed that the client was completely dissatisfied. The Applicant had engaged in passive aggressive behaviour with Ms George and caused her significant concern, based on the Applicant’s remarks that she was responsible for the loss of a client.

The ‘standdown’ process and comments in the workplace

[217] The Applicant’s conduct immediately following the stand down meeting on 27 January formed a significant part of the Respondent’s case, in arguing that the employment could not continue. The Respondent alleged that upon conveying to the Applicant, the necessity to her stand down on pay and to allow for the Applicant to respond to the complaint, the Applicant was directed to leave the workplace immediately and not to talk to anyone in the office. On the evidence, these directions were made, but not adhered to.

[218] The evidence was that the Applicant breached this direction; and in response, she swore at Mr Weygood and made the following comments in an aggressive tone:

a. ““This is a cuntish thing to do mate”;

b. “ I have not done anything in this company to deserve what you’re doing to me”;

c. “This is fucking outrageous”; and

d. “This is bullshit what you’re doing Nathan”.

[219] The comments were made in the presence of other Celotti staff members. After hanging up the phone to Mr Weygood, the Applicant, on the evidence, then stated words to the effect of:

a. “Have fun in this shithole of a company girls” to Ms Nicole Le Hars and Ms George; and

c. “I have just been stood down with full pay by Nathan and he will not give me a reason as to why, this is absolutely outrageous! I have no idea what I have done wrong. I have done nothing but work my butt off for this company and have no idea what I have done to warrant this. I am on my way to see a lawyer”, in the presence of Ms Hilary Davidson and Mr Mark Oliveira.

[220] These comments were made after the Applicant had been given a lawful and reasonable directive to leave the building immediately and not to speak about the matter with staff.

[221] The Applicant conceded to using the inappropriate language, directed at Mr Weygood on being stood down. The following exchange occurred during the Applicant’s cross examination:

“Yes, so you've stated in that paragraph that you were angry with Mr Weygood and you were upset with him. Can you please elaborate on how you were feeling?---I was feeling very hurt. I was feeling very upset and I was feeling very angry.

Did you say anything to Mr Weygood when he stood you down?---Yes, I did.

Did you express any anger towards Mr Weygood or the process?---Yes, I did.

You admit that on the day you said words to the effect of - and please excuse the Commission, this is not language I would normally use - "This is a cuntish thing to do, mate"?---My correct - the correct thing I said was, "This is a cunt act, mate." I apologise for the language and I apologised instantly for the language used to Mr Weygood as well.

You apologised to Mr Weygood at the time, did you?---Correct.

Did you also say, "This is fucking outrageous"?---I did, yes.

Did you also say, "This is bullshit, what you're doing, Nathan"?---Yes, I did, or words to that effect: I can't remember the exact words around that sentence.

Ros, can I ask you when Mr Weygood stood you down, what he told you?---He told me that he had to stand me down immediately and that I was - I asked him the reason why. He said he was - there had been serious allegations made. I asked him what they were. He would not tell me. He would not give me any information around it. He told me I needed to leave the building. So I did. I was very hurt, very upset. I did abuse him, yes. I then apologised and then very quickly we discussed matters of what was going to happen to the vehicle, the computer, et cetera. Then I left the building.

Did he ask you to leave?---I was not instructed to talk to any other staff. I was instructed to leave the building immediately.” 37

[222] The General Manager was clear that he provided a direction not to talk to other staff. The Applicant stated that she left the office immediately, which the Respondent contested, arguing that the Applicant breached the direction to leave the office. It is concluded on the evidence that she proceeded to have discussions with other staff members, about what was occurring on her way out. The Applicant was cross examined on this:

“If I can direct you now, Ros, to paragraph 20 of the same witness statement - - -?---"I left the office immediately?"

Yes, you said that. Did you make any comments or speak to any other employees before you left the office?---You've just established that I spoke to - briefly as I was leaving the office - - -

Yes or no is fine, Ros?---Yes, I did.

I put it to you that you said to Ms Le Hars and Ms George words to the effect of, "Have fun in this shithole of a company, girls"?---Yes.

I also put it to you that you said to Ms Davidson words to the effect of, "I have just been stood down with full pay by Nathan and he will not give me a reason as to why. This is absolutely outrageous. I have no idea what I've done wrong. I have done nothing. But I work my butt off for this company and I have no idea what I have done to warrant this. I'm on my way to see a lawyer"?---Correct, and it was to Hillary and Mark was in the same office. There were two people in that office.

So that's quite a lot to say. Do you still say that you left the building immediately?---Ostensibly, yes.

As directed?---Two comments on my way out the door. Didn't stop, sit down, have a chat.

(Indistinct) leave the building immediately. I put it to you, Ms Claydon, that you immediately began to discuss your disciplinary matter with other staff and you failed to follow Mr Weygood's lawful and reasonable directive to leave the building immediately?---I was not instructed to speak to any other staff and I - to my mind - left the building as directed.” 38

[223] In considering whether all of the conduct provided a valid reason and whether it represented serious misconduct, the Full Bench decision of Potter v WorkCover Corporation established that where an employee is summarily dismissed for serious misconduct, the dismissal can be found to be harsh and considered a disproportionate response, despite the existence of a valid reason for dismissal. The Full Bench stated:

“[55] In circumstances of summary dismissal the issue of whether the penalty imposed was proportionate to the conduct is a matter more appropriately considered in the context of s.170CG(3)(e) rather than s.170CG(3)(a). If summary dismissal was disproportionate to the misconduct that would support a conclusion that the termination was harsh, despite the existence of a "valid reason" for termination.” 39

(emphasis added)

[224] In the circumstances of this matter, the Applicant, in her evidence, conceded that in response to being advised that complaints had been received, she made a series of inappropriate and hostile comments to Mr Weygood, and made further inflammatory comments to Ms Le Hars and Ms George whilst exiting the building. The comments made by the Applicant fall significantly short of the conduct that would be expected of someone in a senior position. Consideration was given to the circumstances in which the Applicant felt that she was ‘ambushed’ by the news of her standdown and not given any related details of the reasons. However, these circumstances do not mitigate the grossly inappropriate nature of her response to the direction, particularly as she knew she was being given the opportunity to respond, to the written reasons.

[225] On the submissions provided by the Applicant’s representative, it is recognised that there were procedural matters to be considered in relation to the Applicant’s unfair dismissal application. The Applicant’s representative set out the concern at the rapid manner in which the case evolved and was presented to the Applicant.

[226] The flaws in the dismissal procedure need to be balanced, with the Applicant’s use of the significantly unacceptable language to Mr Weygood, which was audible to other staff at the workplace. In addition, the Applicant on the evidence, had received a clear direction to leave the workplace and not discuss the matters with anyone. Her failure to comply was a breach of a lawful direction.

[227] In terms of the matters of the complaint, as set out in the show cause letter to the Applicant, the evidence supported the matters as set out at 1(a) and (b) and 2(a) to (f) and the further improper language as set out occurred.

[228] The Applicant’s conduct, complained of by the other employees, is found to have been substantiated. 40 This conduct considered together with the Applicant’s use of the unacceptable language and the breach of the employer’s direction, provide a valid reason for the dismissal. This is determined in circumstances where the Applicant’s actions had impacted the duties and employment relations with the employer and the other staff. The Applicant’s conduct, as complained of, is found to have been insubordinate to the employer and intimidating and disruptive to other staff. Further, this considered with the Applicant’s criticism of the general manager and directors of the Company and use of the unacceptable language make the workplace relationship irretrievable. Her employment was being undertaken in the Darwin office and there was an expectation that she was to work autonomously and be independent from the supervision of management, but to work in a collegiate manner (as a senior employee) with other more junior staff. Instead, she used this situation to be derisive of management and to critique other staff.

[229] The conduct provided a valid reason for the termination of the employment. The procedural deficiencies contributed to the dismissal being unfair. This is consistent with the finding in the Full Bench decision of Qantas Airways Limited v Paul Carter 41 where a valid reason for dismissal was found, however the impact of and deficiencies in the employer’s termination process, resulted in the dismissal being rendered unfair in the circumstances.

[230] In terms of the language used by the Applicant, it was considered that this contributed to the loss of trust and confidence. In the decision of Symes v Linfox Armaguard Pty Ltd, 42 the use of language at the workplace, was not considered to provide a valid reason, given that it was argued successfully that language of that nature was often used at the workplace. There is no such similar argument in this matter, or evidence to demonstrate that the language of the nature used by the Applicant in this office environment, was commonplace or acceptable at the workplace.

[231] In the decision of Illawarra Coal Holdings Pty Ltd T/A South32 v Mathew Gosek, 43 the Full Bench found that an employee’s use of foul language in the presence of other employees was not found to meet the threshold for serious misconduct, and the employee in that matter was reinstated. In the present matter, the conduct in question regarding the use of foul language (as one component of the conduct) is deemed to be misconduct, (however fails to meet the threshold tests of serious misconduct) as per Regulation 1.07. The conduct is however, significant and not acceptable.

[232] In the matter of Schreier v Austal Ships Pty Ltd, 44 it was found that the failure to follow a lawful direction to attend training outside of work hours, did not provide a valid reason for the dismissal. This is contrasted with the Applicant’s failure to follow the lawful direction (to directly leave the workplace without discussing the matter with other employees) and her verbal response to this direction, including the use of foul language at the workplace towards the general manager. This, in combination with the conduct set out on the show cause correspondence, (that is determined to have been undertaken by the Applicant) represented a valid reason for dismissal.

[233] The Applicant was dismissed for serious misconduct without being afforded wages in lieu of notice. The conduct, whilst serious and inappropriate, provided a valid reason for dismissal, but did not meet the threshold tests for serious misconduct, as per Regulation 1.07(2)(a). 45 The behaviour was less than the required standard expected and impacted on other employees.

[234] The Applicant’s conduct was not considered serious misconduct as it cannot be construed as causing serious or imminent risk to the health and safety of another person or immediate damage to the reputation, viability or profitability of the employer’s business. The Applicant in the case of Tymoszuk v Comfort Delgro Cabcharge Pty Ltd was rightfully dismissed for serious misconduct for using a mobile phone whilst in control of a bus and causing serious or imminent risk to the health and safety of another person. 46 The evidence (in the current case) was that the employees were affected by the Applicant’s, disruptive and intimidating conduct. It affected the well-being of the other employees of the workplace, contrary to the duty of care owed to them in their employment, but did not cause serious and imminent risk to the health and safety of employees or to the reputation, viability or profitability of the employer’s business.

[235] The Applicant’s conduct provided a valid reason for dismissal due to her poor attitude and behaviour, particularly when she worked in a separate office, and could not be subject to immediate supervision and monitoring. This is consistent with the decision of Kolodka v Virgin Australia Airlines Pty Ltd t/a Virgin Australia, 47 where it was found that the employee’s poor behaviour and poor attitude towards his team members constituted a valid reason for dismissal.

[236] The Applicant’s response has been taken into account, but it did not directly convey any admission of seeking to remedy the behaviour. There was no recognition on the part of the Applicant regarding the manner and impact of her conduct and the effect of such on the other employees. The Applicant’s conduct had caused a loss of trust and confidence in her, that would not allow the Applicant to continue to operate and be employed to work away from management as required, in the Darwin office.

[237] In terms of an assessment as to whether the aggregate of the Applicant’s conduct was a ‘sound, defensible or well founded’ basis for the Applicant’s dismissal, it is considered that this conduct met the threshold for a valid reason for dismissal, and the conduct was not commensurate with ongoing employment (as set out below).

(b) whether the person was notified of that reason

[238] The Applicant was advised on Wednesday, 27 January 2021, upon arriving at work, that she was being sent home, whilst concerns regarding her conduct were investigated. The Respondent had unsuccessfully attempted to call the Applicant prior to her arriving at work. The Applicant was sent a text message asking her to contact Mr Nathan Weygood, however the Applicant was not advised, as to the specific nature of the Respondent’s concerns.

[239] On Thursday, 28 January 2021, the Applicant was presented with a ‘show cause’ letter, outlining 11 allegations to which the Applicant was directed to respond by close of business on 29 January 2021.

[240] The Applicant sought an extension until 2 February 2021, to respond to the show cause letter. This extension was granted. On Tuesday, 2 February 2021, the Applicant, then through her legal representatives, requested that she be provided until Friday, 12 February 2021, to submit her response to the allegations. The Applicant did not receive a response to this correspondence. The Respondent submitted that they had already responded to the employee and granted an extension and had no obligation to respond to her lawyers. It was procedurally unfair not to inform the Applicant that the further extension was not granted. The dismissal was implemented in the absence of the Applicant’s response. This was in accordance with the employer’s notification to the Applicant of the granted extension. The Applicant’s responses provided later with the application and, in response to the directions, have been considered. They did not contain material overturning the complaints of the conduct.

[241] On Thursday, 4 February 2021, the Applicant was summarily dismissed by the Respondent on the basis that she had engaged in serious misconduct and provided with a letter of termination. The conduct was found to be a valid reason for termination, but did not represent serious misconduct.

[242] The Applicant was notified of the reasons for the complaint and her dismissal in respectively, both the show cause letter of 28 January 2021 and the letter of termination of 4 February 2021.

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

[243] The Applicant was required to respond to the allegations set out in the show cause letter of 28 January. The show cause letter required a response from the Applicant, to the 11 allegations, by close of business the following day, after she was issued with the letter. This was an extremely brief period for the Applicant to have considered and responded to the 11 allegations. It was not made clear why the Respondent had requested such a short turn around for the provision of a response.

[244] The Respondent revised this timeframe, (for the Applicant’s opportunity to respond) in response to the Applicant’s request, until 2 February 2021. As set out earlier, the Applicant subsequently requested a further extension until 12 February to submit her response to the allegations. The Applicant did not receive a response to this request, and instead, on 4 February 2021, the Applicant was provided with a letter of termination, stating that she had been summarily dismissed by the Respondent.

[245] The Applicant, in their submissions on procedure, cited the decision of Thomas v Ralph Lynch trading as Bellingen Grocery, 48 where the following observations (regarding similar provisions of the Act, as they then were, in relation to unfair dismissal) were made:

“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.”

[246] A further discussion with the employee did not occur given the Respondent had clearly set out that a decision would be made if the Applicant failed to respond to the complaint.

[247] The Applicant relied on the decision of Crozier v Palazzo Corp Pty Ltd, 49 (in relation to the statutory predecessor to s.387(c)), where the Full Bench stated:

“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.”

[248] The Applicant was given a clear opportunity to respond by the extended date. The Applicant’s representative submitted that having regard to these authorities, she was not afforded an opportunity to respond to the reasons for termination. The Applicant submitted that the Respondent communicated the reasons for termination in the letter of 4 February 2021, but argued that she was not afforded an opportunity to respond to the reasons for the termination of her employment, prior to the termination taking effect. The Applicant submitted the short timeframe she was afforded to provide a response, demonstrated that the Respondent was simply ‘going through the motions’. The Respondent had rejected the Applicant’s request for a two week extension but had provided an extension and was clear that in the absence of a response, the matter would be determined. An opportunity to respond was afforded to the Applicant.

[249] The Respondent argued that they made no conclusions of fact, prior to 4 February 2021, and the Applicant was given, and had acknowledged, that she was given an opportunity to provide a response.

[250] The Respondent argued that through their request for the Applicant to provide a response, they had clearly demonstrated an interest in considering the response prior to any decision being made. The Applicant’s reply that was provided prior to the hearing in this matter, had not provided new information or altered the Respondent’s position on the termination.

[251] The Applicant had opposed the process, in which it was argued that Mr Nathan Weygood was both the author of the ‘please explain’ letter, the person purportedly conducting the ‘investigation’, assessing the Applicant’s responses, as well as being a complainant and a witness to the alleged conduct to which that the Applicant was being directed to respond. The Applicant submitted that Mr Weygood was conflicted, as any finding that the Applicant had not engaged in the conduct as alleged, would have, she submitted, required him to make a finding against himself. On this basis, the Applicant submitted that a genuine opportunity to respond was not afforded in these circumstances. Mr Weygood, after some questioning, confirmed in his evidence, that Mr Celotti was at all times the relevant decision maker, in terms of the disciplinary process and the decision to terminate the Applicant’s employment. Mr Celotti had signed the termination letter. Mr Weygood was cross-examined on this matter:

“MS BASSINGTHWAIGHTE: I'm trying to understand who the decision maker was here because Mr Weygood has seemed to have gone to some lengths to identify that he is not the investigator or the decision maker.

…

MS BASSINGTHWAIGHTE: Yes. The next question is who was the decision maker?---The decision maker was Mr Celotti as it says in my statement. I think I just answered that before - - -

Mr Celotti made a decision in response to the allegations. Is that correct?---Mr Celotti made a decision based on the information and the lack of engagement of Ros.” 50

[252] The Respondent argued that the Applicant’s portrayal of Mr Weygood was inaccurate. The Respondent said that the Applicant’s submissions on the process were incorrect. The Respondent confirmed that the ‘please explain’ letter was provided by Mr Weygood, as he was the General Manager, and he was involved in operations and the Applicant would ordinarily report to him, which was acknowledged by the Applicant. It was further acknowledged that Mr Celotti, as Director, was the decision maker, and he had also overseen the Applicant’s working history.

[253] Mr Celotti, the owner of the business, was to be responsible for assessing the Applicant’s response, though she did not provide one. He was the final decision maker regarding the dismissal. It is noted that Mr Celotti did not provide evidence in this matter. A conflict was not made out on Mr Celotti’s part, in the termination and the procedure had not been flawed on that basis, as the Applicant had argued.

[254] It is noted that the Respondent dismissed the Applicant for alleged ‘serious misconduct’ and as such, if found to be substantiated, summary dismissal of the Applicant was warranted. It is not clear on the evidence that the Respondent would have suffered any real prejudice by granting the Applicant the additional 8 days to respond to the show cause letter, or by clearly indicating they were not granting this extension, therefore clearly confirming the response date. On this basis, this criterion regarding the opportunity to respond (on a procedural assessment) weighs in favour of the Applicant, and supports a finding that the dismissal was harsh and unreasonable.

(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

[255] The Applicant was not advised, prior to 27 January 2021 that she was to be stood down when she arrived at work on 27 January. The Respondent submitted that they had attempted to call the Applicant, prior to her arriving at work that day, to inform her that she would be stood down whilst an investigation was undertaken, however they were unable to reach the Applicant. Mr Weygood subsequently sent a text message to the Applicant asking her to contact him when she could. The Applicant called Mr Weygood upon arriving at work, and was advised that the Respondent held ‘serious concerns’ regarding her workplace conduct and that she would be stood down from her role, while a response was sought from the Applicant.

[256] Mr Weygood, in his evidence, stated that, had the Applicant engaged in the disciplinary process proposed, the Respondent would not have denied her the opportunity to have a support person present at any meeting that was subsequently scheduled after receiving her response. His evidence was that when he advised the Applicant she was being stood down, she asked what the allegations were and she said words to the effect of “this is outrageous”. Mr Weygood said that he told the Applicant he needed to further consider the allegations, and said words to the effect of: “I will provide you with an opportunity to respond in a formal meeting, but until then I need you to not come into the workplace or talk to anyone in the office.”

[257] In her evidence, the Applicant maintained that she was completely floored by Mr Weygood’s comments during the phone call, as she had no prior notice of the meeting and no indication that there were any concerns with her conduct, let alone, concerns that she had engaged in serious misconduct. The Applicant stated that she was extremely upset by the entire situation. She stated that she was worried about her employment and, given the seriousness with which Mr Weygood had described the conduct, her mind began to “catastrophise” the situation.

[258] The Applicant further stated that she was also angry with Mr Weygood for the way that he had communicated the news of her stand down. She stated that she felt ambushed by Mr Weygood in that moment and upset that he would not provide her further details as to why she was being stood down, despite saying that certain allegations had been made against her.

[259] In the process undertaken, the Respondent had endeavoured to contact the Applicant early in the morning prior to reaching the office. The Applicant was stood down from her work with payment and provided with a period of time (later extended) to respond to the written allegations.

[260] The Respondent did not expressly deny the Applicant an opportunity to have a support person present. The Respondent was endeavouring to manage the situation from Brisbane. The Applicant was forwarded a letter of various complaints that she needed to respond to. The Applicant had been asked to leave the workplace and told that further information would be provided. The Applicant’s response to this was unnecessarily explosive. The employer did not unreasonably refuse a support person. The absence of a support person was linked to the absence of the Applicant’s required response, therefore no further meeting occurred with the Applicant, where the Respondent stated that a support person would have been included.

As set out previously however, the lack of a clear response from the employer refusing the further extension, meant that the reasons the Applicant had prepared was not sent and therefore she was denied consideration of this and a further meeting with a support person.

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

[261] The Applicant’s performance and conduct matters had occurred at the Darwin office; and some of these matters had been directed towards the management, based in the Brisbane office. However, once management, via the complaint became aware of the Applicant’s overbearing effect on other staff, (compromising their ability to discharge their duties) they sought a response. The evidence of the other employees supported the complaints, as set out on the document. Management operating at a different site had been shielded from the Applicant’s prior conduct, as set out, for example, the Applicant in team meetings; muttering derogatory comments about management and sarcastically rolling her eyes. The other staff were younger, and some were new to the company. This raised their concerns; and the obligations of the Applicant being more senior to them. The short period in which some worked with the Applicant has been considered. The Applicant’s conduct was disrespectful of and resistant to management and unsettling for all. The behaviour and attitude was not what is expected of a mature, longer term employee; being a senior employee in a distant office. This is not conduct that the Applicant was required to be warned about. It is conduct (the employer was unaware of, and its effect) that was inconsistent with an ongoing employment relationship.

(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

[262] The Applicant stated that the process was unfair, as she was taken by surprise, that her lawyer’s correspondence seeking an extension to respond, was not replied to and the employer terminated her employment prior to receiving her response. The Respondent submitted that their direction with the first extension was clear and that the enterprise size had no impact on the disciplinary process and maintained that the process was followed correctly. However, the Respondent further submitted that they do not have dedicated Human Resources management specialists and that the mere fact that the Respondent is a labour hire, or recruitment company, does not automatically provide an expertise in human resources or industrial relations. There was also no management representatives located in Darwin, to conduct the process on the ground. The weaknesses in the process, as set out, have to be considered against the lack of specialist resources available, and endeavouring to manage the procedure and the employees from a separate site.

(h) any other matters that the FWC considers relevant

[263] It was submitted by the Respondent that the Applicant’s history of service was of only minor relevance as her conduct ended the employment relationship, and that her conduct in this separate office had not been evident to the Respondent until the complaints were received.

[264] The Respondent however argued that the Applicant would have known that these fundamental conduct matters would not have been condoned.

[265] It emerged that the Applicant had been engaging in this conduct for a period of time. The Respondent said in commenting on the case of Quinlivan v Norske Skog Paper Mills (Australia) Ltd (Quinlivan), 51 that it was a substantially different matter, as Mr Quinlivan was dismissed for repeated safety breaches, had only a limited education background and had served for a period of 20 years. The Applicant’s letter in response to the complaints, although prepared and dated as available at the required date of response, was not provided to the employer at that time. The response has been considered and does not overcome the matters of complaint. In particular the derogatory comments of management by a senior employee to junior staff.

[266] In terms of mitigation of loss after the dismissal, the Respondent stated that the Applicant had not provided valid particulars as to why it ‘might be expected’ that the Applicant had been unable to obtain further work, despite being ‘highly motivated and experienced.’ It was submitted by the Respondent, that the Applicant was an experienced recruitment consultant who was seeking work in Darwin (a market that she was familiar with). It was noted that it was inconsistent with a job search by a recruiter, not to have updated her LinkedIn or Seek profiles to reflect that she was in the market for a new job.

[267] It is understood that a number of the junior employees had only worked briefly with the Respondent, but their evidence was that they had been affected by her conduct. The Respondent could not confidently have her continue to operate in the Darwin office, even in the absence of these staff.

[268] In terms of other matters, it should be noted that there had not been performance issues raised in relation to the Applicant’s core duties, however working independently as part of a team in an interstate workplace, was a part of the inherent requirements of the employment contract; not to be destructive towards the employment relationship of others, or towards the employer and their business.

[269] The evidence of the Applicant’s tampering with the business’s LinkedIn page (post dismissal) was prejudicial to their business. This reference to post dismissal conduct (was not relied on for the termination) is distinguished from that relied on in the matter of Newton v Toll Transport Pty Ltd. 52 This post employment conduct (being prejudicial to the Respondent’s operation of their LinkedIn page) in accordance with Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (Nguyen)53 is seen as conduct that is consistent with the breach of trust and confidence and does not support reinstatement.

[270] The Applicant submitted that the termination has caused her great emotional and financial stress. It was further submitted that she suffered a substantial loss of income as a result of the dismissal.

[271] In Quinlivan, 54 it was held, in considering an Applicant’s personal and economic circumstances and finding the termination to be harsh:

“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.”

[272] The impact of the termination of the Applicant’s employment “in circumstances where she is 56 years of age and seeking alternative employment opportunities in Darwin” has been considered further in the remedy matters.

[273] It was submitted on behalf of the Applicant, that the termination has been a personal, professional and financial disaster for her, and has placed her in a situation in which she will struggle to find employment in a similar position. However, the Applicant did not provide specific details of the impact, nor of steps to find alternative employment. It was also noted that even taking into account the Applicant’s ill-health since the termination, she had not updated her professional recruitment profile, despite her extensive experience in recruitment.

REMEDY

[274] It is determined that there was a valid reason for the Applicant’s dismissal, but steps of the process provide procedural unfairness. It is necessary to make an assessment in terms of the appropriate remedy to be applied. Section 390(3)(a) of the Act sets out that the Commission must not order the payment of compensation unless the Commission is satisfied that reinstatement of the person is inappropriate, and that the Commission considers that an order for payment of compensation is appropriate in all the circumstances of the case.

Reinstatement

[275] In accordance with the Act, it is necessary to first determine whether reinstatement is appropriate. The Full Bench Decision of Nguyen established that reinstatement might be inappropriate in a whole range of circumstances, 55 including where there has been a loss of trust and confidence in the employment relationship.56

[276] The Full Bench Decision of Nguyen also identified the following propositions, relevant to the impact of a loss of trust and confidence on the appropriateness of an order for reinstatement:

“• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion. 57

[277] The Full Bench in Nguyen concluded that, “[u]ltimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”⁵⁸

[278] In accordance with the Full Bench decision of Newton v Toll Transport Pty Ltd, 59 conduct that has occurred months after a dismissal cannot be considered in determination of whether the employer had a valid reason for the dismissal, however post dismissal conduct can be relevant to the assessment as to whether reinstatement is an appropriate remedy in the circumstances. In the present matter, the Applicant’s conduct in accessing and deactivating the Respondent’s LinkedIn page, (being an essential business tool) and not advising the employer, is relevant to the assessment that reinstatement was not appropriate in the circumstances. In terms of the conduct complained of, the following exchange (during the Applicant’s cross examination) detailed the nature of the conduct:

“I put it to you that on 17 May, indeed, you have been active on LinkedIn, if it's not to update your work profile, you deactivated the Celotti Workforce LinkedIn page?---Yes, apologies for that.

Which would have required you - - - ?---I inadvertently - - -

- - - you logged into your own LinkedIn profile, and I put it to you that, not only have you failed to take the steps that would be expected of someone with your significant, recruitment background to mitigate your losses, but you've also attempted to cause harm to the respondent through your actions in deactivating their LinkedIn account?---Okay. So yes, I did manage to deactivate their account. What I was attempting to do was to remove my link to them. And in - because I had administrative over the account, which I wasn't aware of, when I attempted to deactivate myself, I deactivated the entire account. Which they were instantly notified about and reactivated.

Ms Claydon, I put it to you that as an experienced recruiter, you would know very well, as I do, and I'm not an experienced recruiter, that when you update your current position, it automatically who your current employer is?---I don't claim to be - - -

There was no need for you - - - ?--- - - - any expert on LinkedIn and/or Seek, for that matter.

Ms Claydon, I put it to you that you had to go on to Celotti Workforce's page, the company page, not your profile, the company page, and there is a second button to click to deactivate, "Are you sure you want to deactivate", and you deactivated, and if - - - ?---I thought I was deactivating myself, I was not aware that I was deactivating them.

- - - it was an error - can I please finish my - I'm not finished, Ms Claydon. And then after you successfully deactivated the company's account, I see it very clearly, can you see there? "If you can change your mind, you can easily reactivate your page by clicking here". If you did make an error, why didn't you reactivate the page?---You might note that this has been sent through to Michelle, at Celotti, not me, so I wasn't advised that I'd deactivated the Celotti Workforce account. All I was endeavouring - - -“ 60

[279] The Applicant’s conduct in this matter has been substantiated, and is not commensurate with the level of trust and confidence required to support a finding of re-employment or reinstatement. A range of employment relationships were affected; with other employees, but most importantly management. The Respondent submitted that they do not consider reinstatement appropriate, as they consider the employment relationship to be irrevocably damaged, and unmanageable in the Darwin office.

[280] In terms of an assessment against the criteria set out in Nguyen, I was able to observe the Applicant and the other witnesses in providing this evidence. On the evidence, a sufficient level of trust and confidence cannot be restored between the parties for management to be confident, that the employment relationship (in Darwin) can be viable and productive. This assessment is made in consideration of the ‘rationality’ of the attitude adopted by the Applicant, specifically, the nature of the conduct that has been substantiated, the lack of response, the hostile language used to the employer and the matters of the Applicant’s dismissive conduct to younger employees at the separate workplace. The reasons for the dismissal could be accurately summarised as representing an aggregate of conduct that undermined the workplace relationship and the authority of management and eroded the Respondent’s trust and confidence in the Applicant’s ability to independently perform her role. For these reasons, reinstatement is not considered an appropriate remedy in the circumstances. It is therefore necessary to consider whether an order for payment of compensation is appropriate in all the circumstances.

Compensation

[281] Having determined that the dismissal was unfair, given the procedural deficiencies as set out, and that reinstatement is not appropriate in the circumstances, it is necessary to assess, whether an amount of compensation should be awarded. Section 392(2) of the Act sets out a number of matters which must be taken into account in the assessment of compensation, in respect of an unfair dismissal remedy application. The approach to the calculation of compensation has been set out in the decision of Sprigg v Paul’s Licensed Festival Supermarket (Spriggs). 61 The Spriggs formula has subsequently been endorsed in a number of Full Bench Decisions of the Commission.62

s.392(2)(a) – the effect of the order on the viability of the employer’s enterprise

[282] Directions were provided, including the provision of s.392. No specific submissions or evidence were provided regarding the likely effect that an order for compensation would have on the viability of the employer’s enterprise. However, noting that the Respondent employed over 130 employees at the time of the Applicant’s dismissal, (and given no direct submission to the contrary) it is unlikely that an order for compensation, is likely to negatively impact the viability of the employer’s enterprise. This criterion is considered neutral on this basis.

s.392(2)(b) – the length of the person’s service with the employer

[283] The Applicant was employed by the Respondent for a period exceeding two and half years. This period of employment is not insignificant and favours an award of compensation in excess of 1 weeks’ pay. 63 It is also noted that the Applicant was not paid wages in lieu of notice.

s.392(2)(c) – the renumeration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[284] It has been established that the Applicant’s conduct constituted a valid reason for dismissal, but was not deemed to be ‘serious misconduct’. Neither party addressed with clear reasons, the anticipated length of the continuation of the employment relationship. However, given the nature of the conduct and the complaints and evidence of other employees, it is considered that her employment would not have continued with the Respondent for a further lengthy period. It has been set out that the Respondent’s procedure in implementing the dismissal had deficiencies, and further it has been found that the Applicant’s conduct did not meet the test for serious misconduct. However, in the circumstances, it is considered that the Applicant’s employment would have come to an end at the employer’s initiative, albeit, after an appropriate disciplinary process had been undertaken. It was submitted on behalf of the Applicant that to provide a procedurally fair process would require a further two weeks and the provision of wages in lieu of notice.

[285] As set out in Hanson Construction Materials Pty Ltd v Pericich, 64 it is necessary in these circumstances, to make an assessment as to the duration of a procedurally fair process.65 Had the Respondent engaged in an appropriate termination process, it is likely that the Applicant would have remained employed for a period of approximately 5 weeks. It is considered that an appropriate procedure, including allowing for a period of stand down of the Applicant’s employment, an investigation, a response period to the conduct, a further meeting and consideration, and the implementation of the dismissal would have taken approximately 5 weeks to complete.66

s.392(2)(d) – the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and s.392(2)(e) the amount of any renumeration earned by the person from employment of other work during the period between the dismissal and the making of the order for compensation

[286] The Applicant stated that she had not been successful in obtaining employment following her dismissal, and that she had not received any other income during this period. The Applicant had maintained that she had been actively applying for other positions since her dismissal and that she had participated in, an online interview for one position.

[287] In accordance with the case of Hilbrick v Marshall Lethlean Industries Pty Ltd, 67 it is also recognised that the Applicant had argued that she was unable to mitigate her loss, for the period of time following the dismissal, due to her incapacity as a result of her ill health.

[288] The Applicant argued that her ability to obtain alternative work had also been adversely affected by the chronic health conditions from which she suffers. Specifically, the Applicant stated that she suffers from atrial fibrillation that has been exacerbated by the stress associated with losing her job. The Applicant asserted that this condition causes her to suffer from a racing heart, pain across her chest, and shortness of breath.

[289] Between 22-24 February 2021, the Applicant stated that she was hospitalized with an acute colon and bowel disorder, which was also linked to increased stress. Following the Applicant’s discharge from hospital, she stated that she has continued to slowly recover, however, she argued that her ability to look for other work in the immediate aftermath of her hospitalization was limited.

[290] The Applicant’s representative referred to evidence of a medical certificate for a short period in February.

[291] In addition to her health issues (set out further below), the Applicant stated that her attempts to locate alternative employment had been unsuccessful, largely due to the relatively small job market that exists in Darwin. This was a point of contention at the hearing, with the Respondent providing evidence that the Applicant, despite being an experienced recruiter, had not updated her LinkedIn or Seek profiles to reflect that she was no longer employed by the Respondent, or that she was seeking employment at that time. The following exchange occurred between the Applicant and the Respondent’s representative regarding the status of her online recruitment profiles:

“MS MOLTONI: It must be quite frustrating with such an experienced background to not be able to find work for such a prolonged period. Would that be an accurate comment?---Absolutely.

I imagine that in that time you have taken every step to make yourself as attractive to prospective employers as possible?---Of course.

I put it to you, Ros, that you have not taken every step to make yourself as attractive to prospective employers as possible. If I can bring to your attention a document that has been sent through marked H2?---Yes, thank you. So this document has been listed off Seek. I have - - -

I will ask the questions, thank you, Ros. I tender your CV on Seek which is as of 6 May and as of 6 May it was not updated to even reflect your time at Celotti. I put it to you, Ms Claydon, that in failing to do so you have failed to act to mitigate your loss. This is at 6 May and this CV on Seek - where you admit that you look when you're filling roles - is not up to date?---And as I said to you - - -

I haven't asked you any other question. There is no other question for you to answer. I also put it to you that you have not updated your profile on Seek to indicate that you may be approachable by other employers, is that correct?---I have not updated my details on Seek, no, but I have been sending an updated resume through to - - -

It was just a yes or no answer?--- - - - positions I have been applying for.

That was just a yes or no answer. Thank you, Ros. I put it to you that this is not just isolated to Seek. I put it to you that as of 6 May you had also not updated your LinkedIn to indicate that you were no longer employed by Celotti Workforce or looking for work?---Correct, because that's not the platform I am utilising to seek employment.

But, Ros, you have given - - -?---I'm utilising Seek to respond directly to advertisements - - -

Ros, I'll ask the questions. Thank you. Ros, you just told me that as an experienced recruiter when you fill jobs you search Seek and LinkedIn?---I also told you if I was searching Seek and LinkedIn and people were not responding directly to an advertisement, I would not expect their details to be up to date because they would be unaware that I was lifting their details without their knowledge necessarily from either of those platforms.

…

MS MOLTONI: H4. It's a copy of Ms Claydon's LinkedIn profile as at 6 May, some three months after her termination and it still hasn't been updated.

THE WITNESS: That's not relevant.

MS MOLTONI: Well, I'll leave that for the Commission to decide - - -?---What am I supposed to put, "Shafted and looking?" 68

[292] It is considered that someone with the Applicant’s experience in recruitment would understand the benefit in a job search of having an up-to-date online professional profile. The Applicant’s evidence was not credible in terms of her reasoning for failing to update her online resume or profiles on both Seek and LinkedIn. This inactivity is not comparable with someone who has the direct experience in recruitment that would enable them to fully appreciate the benefit in maintaining a current online profile, when undertaking to actively apply for positions. The Applicant had not demonstrated efforts to mitigate her loss and had not earned renumeration from other work during the period.

s.392(2)(f) – the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation

[293] The Applicant submitted that she had not earned any renumeration from employment or other work since her dismissal, and it was unlikely there would be further earnings in the period. It is note considered that there would be any income in this period.

s.392(2)(g) – any other matter that the FWC considers relevant

[294] The Applicant’s workplace was based in Darwin, with the management and owner based in the Brisbane office. The Respondent had no other offices in Darwin, or senior supervisory employees located there. The Applicant should have been aware that her conduct was improper in undermining management and disturbing other staff in their duties.

[295] The Applicant’s submissions regarding her relationship with other employees has been taken into account, for example, that the Applicant drove one of the employees to work with her in the company car, and she also stated that she endeavoured to familiarise an employee with the indigenous community by driving her through their residential area. However, the employee said that the manner of this viewing of where people lived, made her uncomfortable.

[296] The consideration of compensation has also taken into account that the Applicant did not provide her ‘show cause’ response by the extended date, as required by the employer. She had been on notice to provide this after an extension was given.

[297] The quantum of compensation has further taken into account the Applicant’s personal circumstances, as set out in this decision. It is noted that the dismissal has had an adverse impact on the Applicant. 69 It is considered that the dismissal was harsh because of the procedural deficiencies. The extended period of employment to allow for a correct process has been set out.

s.392(3) – Misconduct reduces amount

[298] Section 392(3) of the Act requires that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person, then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

[299] It has been set out in this matter that the Applicant’s conduct warranted her dismissal. The Applicant’s conduct directly contributed to the Respondent’s decision to terminate her employment, and that but for her working in the Darwin office, it would have been apparent to the employer earlier. Therefore, this factor supports a reduction in the compensation that would otherwise be awarded to the Applicant. Accordingly, 1 week has been deducted from the compensation. 70

Order of compensation

[300] In undertaking an assessment as to the appropriate compensation, it is noted that:

“[39] The strict application of the approach set out in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg), and endorsed in subsequent decisions, would yield an order that Mr Pericich be paid compensation of 1 weeks’ pay. Sprigg is a useful servant, but is not to be applied in a rigid determinative manner. In deciding the amount of a compensation order the Act directs that the Commission ‘must take into account all of the circumstances of the case’ including the particular matters set out at s.392(2)(a) to (g). 71

[301] Taking into account all of the circumstances, in the above criteria, there was a valid reason for dismissal based on the Applicant’s conduct, but the reasons for dismissal did not meet the statutory test for serious misconduct, (the Applicant was not paid any wages in lieu of notice) and that this also contributed to the harshness of the matter. The process as set out in Hansen, 72 has been adopted and it is determined that the Respondent is ordered to pay the Applicant the amount of 4 weeks compensation (5 weeks wages, less one week, as a result of the Applicant’s conduct).

[302] Such an order will have no effect on the viability of the employer’s enterprise in accordance with s.392(2)(a). The amount ordered does not include any component by way of compensation for shock, distress or humiliation or another analogous hurt, cause to the Applicant by the manner of her dismissal, in accordance with s.392(4).

[303] The Respondent is therefore ordered to pay to the Applicant, 4 weeks wages, in the amount of $6,153.84, less applicable tax. The payment is required to be made within 14 days of this decision.

CONCLUSION

[304] The representative of the Applicant referred to the case of IGA Distribution (Vic) Pty Ltd v Nguyen, 73 which set out that the assessment as to whether there is a valid reason for the termination of employment takes into account the consideration of the context of the alleged conduct and the gravity of the conduct itself. Based on the evidence, the conduct occurred and are demonstrative of non-compliance, insubordination and deliberate agitation of colleagues in the context of a senior employee working remotely, away from managements supervision. The further context is provided by the Applicant’s open judgement of the managers to junior staff and her actions in undermining their authority, in addition to the criticism of their business on grounds of potential fraud and non-adherence to appropriate employment guidelines. This was occurring in a somewhat covert context at a workplace removed from management’s ability to monitor her actions.74

[305] This decision is made in circumstances where the Applicant’s performance and conduct at the workplace constituted a valid reason for dismissal, however the Respondent’s process in effecting the dismissal had procedural deficiencies. It is recognised that the handling of the matter was undertaken from Brisbane, in circumstances where the Applicant was based in Darwin. Further, the process was not fully discharged, given the absence of the Applicant’s response to the show cause letter. Having considered the Applicant’s full response and evidence in this application, the Respondent’s decision would not have been altered. No additional material overturned the finding of the nature of the allegations. The evidence of the other employees confirmed their concerns, and a number were clearly agitated and upset in providing their evidence; even in circumstances where they no longer worked with the Applicant. The Respondent could not be confident in returning the Applicant to work at the workplace in Darwin.

[306] Given the circumstances leading to the dismissal, and the evidence provided by the Respondent’s witnesses, specifically regarding the Applicant’s conduct towards other employees and the demonstrated objection to her direct superiors, as well as the post dismissal conduct, reinstatement is not appropriate in the circumstances. On the evidence, the Applicant has engaged in a pattern of behaviour in the workplace that does not allow for reinstatement. The trust and confidence between the parties has been irreparably severed.

[307] In accordance with section 392(2), in summary terms there is no evidence as to the effect of an order on the viability of the employer’s enterprise. The employee had more than 2 and a half years service. It was unlikely the employment relationship would have, in the circumstances, lasted for more than 5 weeks during which time a procedurally fair process would have been afforded. There is no other evidence of particular efforts made by the Applicant to mitigate the loss suffered since the dismissal. No remuneration had been earned after the dismissal and in accordance with section 392(2)(f), the submissions were that no income was reasonably likely to be earned in the relevant period. A deduction for contingencies in relation to this amount of one week has been made, taking into account her conduct based on the evidence.

[308] In all of the circumstances of this case, for the reasons set out, it is appropriate to make an order for four (4) weeks wages in compensation, as set out above.

[309] An Order [PR735684] has been issued separately.

al of the Fair Work Commission with member's signature

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 The submissions of the Applicant concede the Applicant had a medical condition on 28 and 29 January 2021.

2 Paragraph [8] Applicant’s final submissions.

3 Ibid at [10].

4 Ibid at [26] – [27].

5 Ibid at [35].

6 Witness statement of Mr Weygood, Annexure ‘NW-1’.

7 Witness statement of Mr Weygood, Annexure ‘NW-2’.

8 PN 59 of the transcript.

9 PN 60-65, 68 and 70 of the transcript.

10 PN 73 of the transcript.

11 PN 74 of the transcript.

12 PN 80 and 90 of the transcript.

13 PN 145 of the transcript.

14 PN 155, 157 and 162 of the transcript.

15 PN 81-84 and 88-89 of the transcript.

16 PN 109, 111 and 112 of the transcript.

17 Rule 1.07(2)(b).

18 PN 113 of the transcript.

19 Ibid.

20 Rule 1.07(3)(c).

21 PN [387] of the transcript.

22 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373].

23 Ibid.

24 Rode v Burwood Mitsubishi Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999) at [19].

25 (1938) 60 CLR 336.

26 Ibid.

27 King v Freshmore (Vic) Pty Ltd Print S4213 (17 March 2000) at [24].

28 [2011] FWAFB 4070.

29 [1998] FCA 865.

30 Paragraph 160 – 162 of the transcript.

31 Paragraph 203 of the transcript.

32 Paragraph 218 to 223 of the transcript.

33 Paragraph 235 to 238 of the transcript.

34 Paragraph 233 of the transcript.

35 Paragraph 1195 to 1196 of the transcript.

36 Paragraphs 1085 to 1091 of the transcript.

37 Paragraph 106 to 114 of the transcript.

38 Paragraph 121 to 128 of the transcript.

39 Potter v WorkCover Corporation PR948009 at [55].

40 Briginshaw v Briginshaw (1938) 60 CLR 336.

41 Qantas Airways Limited v Paul Carter [2012] FWAFB 5776.

42 [2012] FWA 4789.

43 [2018] FWCFB 1829.

44 Print N9636, AIRC.

45 Fair Work Regulations 2007.

46 [2013] FWC 3507.

47 [2012] FWA 7828.

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

49 Print S5897; (2000) 98 IR 137.

50 Paragraph 1545 to 1548 of the transcript.

51 [2010] FWA 883.

52 [2021] FWCFB 3457.

53 [2014] FWCFB 7198.

54 [2010] FWA 883 at [41].

55 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [17].

56 Ibid at [27].

57 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [27].

58 Ibid at [28].

59 [2021] FWCFB 3457.

60 Paragraphs [445] to [451] of the transcript.

61 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

62 Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey [2013] FWCFB 431; Jetstar Airways Pty Ltd v Neeteson-Lemkes [2014] FWCFB 8683.

63 Hanson Construction Materials Pty Ltd v Pericich [2018] FWCFB 5960 at [36].

64 Hanson Construction Materials Pty Ltd v Pericich [2018] FWCFB 5960 at [26].

65 Parker v Garry Crick’s (Nambour) Pty Ltd the Trustee for Crick Unit Trust T/A Crick’s Volkswagon [2016] FWCFB 3683.

66 Hanson Construction Materials Pty Ltd v Pericich [2018] FWCFB 5960 at [34].

67 [2010] FWA 7704.

68 Paragraphs 350 to 366 of the transcript.

69 Hanson Construction Materials Pty Ltd v Pericich [2018] FWCFB 5960 at [37].

70 Ibid at [40].

71 Hanson Construction Materials Pty Ltd v Pericich [2018] FWCFB 5960 at [39].

72 Ibid.

73 [2011]FWAFB 4070.

74 Qantas Airways Limited v Cornwell [1998] FCA 865.