[2020] FWC 3418

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Ali Kiani
v
Fuji Xerox Document Management Solutions Pty Limited
(U2019/14425)

DEPUTY PRESIDENT SAMS

SYDNEY, 9 JULY 2020

Termination of employment – application for an unfair dismissal remedy – Senior Developer for Fuji Xerox Document Management Solutions Pty Ltd -warnings for poor timekeeping and attendance – directions to attend training ignored – continued failure to escalate issues to direct Manager – applicant’s focus on other employees’ skills, capacity and expertise – challenge to Management’s authority and experience – corrective actions and management directives ignored – direction to complete a specific project – applicant claims he will not perform the work unless promoted – lawful and reasonable direction – continued refusal to comply – three warnings taken into account – applicant given numerous opportunities to comply with lawful and reasonable direction – valid reason/s for dismissal – no procedural fairness issues – dismissal not harsh, unjust or unreasonable – application dismissed.

[1] This decision will determine an application, filed by Mr Ali Kiani (the ‘applicant’), pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) in which he seeks reinstatement or compensation as a remedy for his alleged unfair dismissal by Fuji Xerox Document Management Solutions Pty Ltd (‘Fuji’, the ‘Company’ or the ‘respondent’). The applicant was employed from 18 April 2017 as a Senior Developer on a salary of $118,705, until he was dismissed for ongoing alleged misconduct on 16 December 2019. The respondent highlighted the grounds for dismissal and for which the applicant had received three written warnings. These grounds were:

(a) Repeated refusals to accept work and/or perform tasks as directed - 5 incidents between June and December 2019;

(b) Repeated lateness and/or unauthorised absenteeism which constitute breaches of the Respondent's Leave Management Policy and Workplace Conduct and Performance Policy;

(c) Refusals to follow lawful directions to attend internal company training - 2 incidents between September and November 2019;

(d) Refusal to follow lawful directions of the respondent, both verbally and in writing.

[2] In accordance with my usual practice, I listed the matter for hearing, issued directions for the hearing, and convened a further conciliation conference before the first direction was due for the filing of evidence. The matter was unable to be resolved and two hearing days were confirmed for 6 and 14 April 2020. Given the restrictions due to COVID-19, the hearing was conducted by phone. At the hearing, Mr Kiani appeared for himself. Mr G Fredericks of Counsel, with Ms Nazreen Ali, Solicitor, Norton Rose Fulbright, appeared with permission being granted for the respondent to be legally represented, pursuant to s 596 of the Act, noting the applicant did not object to permission being granted.

THE EVIDENCE

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

• the applicant;

• Mr Ali Arsiwala, Delivery Manager;

• Mr Joseph Jamhour, Group General Manager;

• Ms Jasreen Sangha, Human Resources Consultant

• Mr Richard Welsh, NSW HR Manager

The respondent helpfully provided a bundle of relevant documents and a chronology of events.

Mr Kiani (the applicant)

[4] In the applicant’s statement, he claimed he was first hired to work on a product called ‘DIPS’ (a cheque scanning system) which was the most complicated product at Fuji. He had completed all the tasks associated with this product, without supervision. After about a year, he sought more work and was assigned a task of writing a computer program for web requests to the API Gateway. This project had been allocated to other staff and had not been able to be completed for a year. After only a short time, he had sent an email making suggestions about how to complete the project. This email caused an ‘angry reaction’ and he was taken off the project and it was assigned to another developer, Mr Santos, who could not complete it. The applicant said this incident immediately resulted in him being moved. He now sat next to Mr Arsiwala. Mr Santos resigned soon after. The applicant said he was asked to help the transition from Mr Santos to a replacement, even though this was Mr Arsiwala’s job. He believed the person hired (Ms Bhasi) did not have the experience and skills for a specific product, known as ‘ASP Classic’.

[5] In November/December 2018, the applicant had assisted Ms Bhasi, even though it was not his job. However, this assistance appeared to upset Mr Arsiwala and another manager, Mr Noel Yoro. The applicant continued to provide critical advice as to Ms Bhasi’s task, which was not welcomed or otherwise ignored. The applicant referred to another incident in which he had offered advice to improve efficiency, but was told he needed to take advice from the architect, Ms Janie Wang. As no agreement could be reached, he escalated the matter to the Chief Technology Officer (‘CTO’), Mr Keith Grieves. He believed Ms Wang had been criticised for failing to provide design documentation. The applicant referred to a Secure Code Warrior Tournament (the ‘Tournament’) which all staff had been invited to. He believed that the event related only to Web Developers and not Non-Developers. Mr Jamhour had disagreed.

[6] The applicant said that on 13 November 2019, a CUSCAL Migration meeting was organised. He was about to attend it, but Mr Jamhour rescheduled a different meeting the next day with Ms Sangha from HR. On 14 November 2019 at around 4pm, Ms Sangha invited him to a meeting the next morning at 9am and asked him to bring a support person. Due to the short notice, he could not find a support person and declined to attend. He believed the meeting related to the cancelled CUSCAL meeting, but she also mentioned his performance. Shortly after, he attended a meeting with Mr Jamhour and Ms Sangha. Mr Jamhour seemed unhappy with his escalation of issues to senior management.

[7] The applicant said Ms Sangha was waiting for him on 15 November 2019, although she had not sent him a meeting invitation. He was surprised because they had already discussed the issues the day before. That day he sent an email to Ms Sangha (CC’ed to Mr Welsh and Mr Jamhour) claiming he felt discriminated by her behaviour and he would escalate the matter if it continued. Soon after his login account was disabled and advised he was suspended as ‘key decision makers were out of the office.’ He was escorted out of the office which was absolutely unnecessary and disrespectful. He claimed he was threatened by a security escort.

[8] On 20 November 2019, the applicant met with Mr Welsh, Mr Jamhour and Ms Sangha. He attempted to explain several matters, but Mr Welsh ‘looked very frustrated’ and issued him with a warning. Later in November 2019, another task was allocated to him which he insisted did not relate to him and he again escalated the matter to Mr Grieves. He was warned again.

[9] Shortly before his dismissal, Mr Arsiwala allocated him another task concerning a project referred to as the ‘Warehouse Transfer Facility’ (the ‘Warehouse Project’). It required completion in five days, even though Ms Bhasi had spent months on the project without progress. It was work within her skillset. Part of the project required technical direction and supervision, but the applicant claimed he was not authorised to do it. Mr Jamhour suggested he be coached to complete the task. He believed it was Ms Bhasi who should be coached. Sometime before this, the applicant made suggestions to improve the design, but these were rejected. He believed these suggestions having not been taken up, were why there was a defect in the Warehouse Project.

[10] On 16 December 2019, in another meeting with Mr Welsh (and others), he had explained the task was beyond his scope. Mr Welsh had responded by asking if he wanted a promotion. When he agreed the task warranted a promotion, Mr Welsh said ‘that’s not gonna happen’. The meeting adjourned and shortly after, Mr Welsh came back with a final warning letter and a termination letter. He was escorted (unnecessarily) from the office by Ms Sangha and Mr Arsiwala.

[11] The applicant summarised his case in the following way:

‘1. The ‘warnings’ were pre-typed; i.e. it was typed before the HR met me to discuss the matter. Obviously, in the meetings with HR I gave my response in person, in addition to the emails which had been sent prior to that, and the conclusion of the meetings was against validity of the ‘warnings’.

2. I received the ‘final warning’ and the termination letter both together at same time; which is absolutely illogical and sign of flawed process.

3. Start and finish hours are flexible in the company and regular company trainings promote that. So, this can never be grounds for dismissal or warning. Enforcing certain hours only for selected people is discrimination and even against company core culture.

4. ‘Working from home’ is part of work-life balance in FujiXerox and is for every employee according to company trainings. I’ve been the one who used it less than average and after HR told me that I can’t work from home I stopped that, although it was clear discrimination.’

First statement of Mr Arsiwala

[12] Mr Arsiwala said that in his position as Delivery Manager, he is mainly involved in overseeing projects and solutions from a software deliverables perspective and using the Developers in his group – ASD (Architecture and Software Development) – to deliver on those projects. He has 13 reports, including the applicant who assumed he had management for in 2018.

[13] Mr Arsiwala described the importance of the Tournament held on 13 November 2019, which was mandatory for all Developers. It was held at the University of Technology, Sydney, from 1-4pm that day. Mr Arsiwala’s role was to manage logistics for the event.

[14] Mr Arsiwala said that there were ongoing issues with the applicant keeping to his contracted hours. This resulted in a disciplinary meeting on 20 November 2019 which discussed the following issues:

‘1. Team Offsite

Team Building event at Rydges World Square on Tuesday 24 September 2019 – the expectation all employees attend. Joe followed up your attendance with an email to you at 9:38AM.

Failure to follow reasonable management direction.

2. Secure Coding Warrior Tournament

Mandatory training for all employees within ASD at UTS on Tuesday 13 November 2019

Verbal and email invite and you responded with Tentative on Monday 12 November at 10:32AM saying you believe it didn’t apply to you. Joe responded at 11:15AM informing you that it is an awareness initiative for ASD and mandatory for your attendance.

3. Working from home

On 13 November 2019 (day of event) at 8:31AM you emailed Joe saying that you were working from home as a tradie was coming after being directed to attend the event. Failure to obtain approval to work from home.

4. Meeting attendance

CUSCAL Migration Meeting in Plum with Joe Jamhour and Craig Carey

At 11:18PM on 13 November 2019 Joe emailed you to remind you of the CUSCAL meeting the next day and that your attendance was required and confirm that you were able to log in remotely for 13 November 2019. You failed to follow reasonable direction to attend the meeting.

5. Work given in July

Some work was being given to you by Ali Arsiwala to do on Inbound .NET – a meeting was scheduled with Ali, Jannie and yourself. Following on from that meeting, documentation was provided. You did not complete the work. Failure to follow a reasonable and lawful direction from direct manager.

[15] He received a first written warning (which he declined to sign) which required the following corrective actions:

‘1. Carry out any and all reasonable instructions provided by management and collaborate with colleagues to complete work;

2. Per your contract of employment, you are required to work a 7.5 hour day. As agreed, you will be commencing at 9AM and concluding at 5:30PM with a 1 hour lunch break;

3. Work from the College Street office unless directed otherwise;

4. Attend all scheduled meetings;

5. Show more initiative and willingness to complete tasks;

6. Accurate timekeeping; and

7. First point of escalation is Ali Arsiwala (your direct manager)’.

[16] Mr Arsiwala said the very next day, the applicant arrived at 10am and for the following week he continued to arrive late. Mr Arsiwala had the following discussion with him on 27 November 2019:

‘Mr Arsiwala: You need to ensure that you come into work at 9:00 am and remain in the office until 5:30 pm.

Applicant: Everyone in the office has flexibility and I can use flexibility how I want.

Mr Arsiwala: Yes you can have flexibility, this is a flexible workplace, but you need to let me know your movements. The flexibility of other employees is subject to pre-agreed arrangements between them and their direct manager. If you need to come in at a later time for any reason, you can let me know, and I am happy to make arrangements.

Applicant: No, depending on the day I will come in at a time that I think is suitable on the day.’

[17] On 28 November 2019, the applicant was absent from the office and he had not informed Mr Arsiwala. The applicant claimed that he had emailed Mr Jamhour, but this was contrary to his direction to contact Mr Arsiwala as the first point of contact. This was also contrary to Fuji’s policy which required direct contact with the Manager by phone (not email, phone or SMS) if a person is to be absent. Despite this policy, Mr Arsiwala also told the applicant he could email him.

[18] A second disciplinary meeting was held on 2 December 2019 with himself, Mr Welsh and Ms Sangha. The applicant continued to insist he did not need to notify his Manager if he was absent or late. When questioned about his lateness, the applicant replied:

‘Like everyone else in this organisation, I can come in and leave whenever I like.’

[19] Mr Arsiwala said that on 9 December 2019, he asked the applicant to take on the work of correcting an issue on one of the Management Information Systems (the ‘Warehouse Project’). He emailed the applicant and told him it should take no longer than five days. The applicant responded by raising a number of objections, including that Ms Bhasi should do the task, as she had worked on it previously. Mr Arsiwala told the applicant Ms Bhasi was on another project and the task was a reasonable request within his Senior Developer capabilities, without any difficulties foreshadowed. Mr Arsiwala explained the specific framework for the task is called ASP.NET, which the applicant had said in his CV he was experienced with. In any event, it was commonplace in the business and Senior Developers are expected to update their knowledge regularly. Mr Arsiwala believed the applicant had the skills and ability to do this work. Nevertheless, on 10 December 2019, Mr Arsiwala told him if he needed any training or assistance, it would be provided. On 13 December 2019, the applicant replied:

‘Hi Ali,

This is totally different skillset and unfortunately I can’t help you with this one. Web development is a different role; I’ve never applied for such role in my life!

This is reasonable that Divya works on this since she is our web developer. If Divya has difficulty completing this, Ruchi will be the alternative. Ruchi, from what I know, has been hired as Angular developer which is still web development.

Needless to say, it’s very critical that either Divya or Ruchi receive the correct technical supervision. In terms of upskilling, if there’s really one here who can upskill someone, then they should be able to provide leadership so Divya can complete the task; that would be a lot easier and quicker.

Once again, there’s zero chance that I would accept and would be able to complete this task; no matter what consequences.

Thanks very much for your understanding and helping us save time by not repeating same request again and again. I you have any task for Desktop Applications please don’t hesitate to let me know.

Regards

Ali’

[20] Mr Arsiwala, Mr Jamhour and a Senior Architect, Mr Clarke, reviewed the work and they all concluded it was a reasonable request for a Developer of the applicant’s seniority. The applicant was advised again to do the work and he answered: ‘Once again there’s zero chance I would accept and would be able to complete this task, no matter what consequences’. He insisted Ms Bahsi be allocated the work.

[21] As a consequence, the applicant was invited to a third disciplinary meeting on 16 December 2019. On 13 December 2019, he replied:

‘I’ve given all my reasons in the emails; you can easily refer to that. (one of many has been attached)

For time keeping I know you and several others in one instance spent almost 2.5 hours yesterday out for exercise/tennis, in middle of work hours. I personally choose to do exercise at the end of work hours instead of middle of work hours.’

[22] Mr Arsiwala described the part of the conversation at the meeting with Mr Welsh, Ms Sangha and himself as follows:

‘Mr Arsiwala: We have observed that there continue to be issues with your start and finish times, and maintaining your contracted 7.5 hours of work per day.

Applicant: This is unfair because you are watching my time whereas everyone else is taking longer breaks, including yourself, for instance, to go to the gym. I raised this unfairness in an email, and Joe (Mr Jamhour) has acknowledged it.

Mr Arsiwala: That is none of your concern, those arrangements are matters between myself and Joe and the individual employees who have made arrangements with agreement from their managers.

Mr Jamhour: You have misunderstood what I meant by ‘acknowledge’. Acknowledging your email does not mean that I agree with its contents, it just means that I am confirming receipt of it.

Mr Welsh: As you have been asked to start at 9:00 am, have you been starting your day at 9:00 am?

Applicant: It depends on the day, and there is flexibility for everyone else, everyone else is taking longer breaks than I am and no one is noticing it.

Mr Welsh: We are not here to talk about everyone else, we are here to talk about you. Were you allocated the Warehouse Facility Transfer Issue to resolve?

Applicant: You would not understand the Warehouse Facility Transfer Issue, I will need someone technical to speak to about that task.

Mr Welsh: You have been given an opportunity to learn and upskill as you see fit to complete the Warehouse Facility Transfer Issue. Have you taken up that offer?

Applicant: I am not going to take that task on.

Mr Welsh: You have said in an email dated 13 December 2019: “once again, there’s zero chance that I would accept and would be able to complete this task; no matter what consequences.” Is this still your position, even when your direct manager is offering assistance?

Applicant: Yes. I will go home now if you ask me to.

Mr Welsh: No. We haven’t asked you to go home. I would like to give you some time to think about whether you will accept this task and take it from there, and just be aware that another refusal may result in termination of your employment. Think about this seriously, and we will meet again in 30 to 45 minutes.’

[23] The meeting adjourned for 30 minutes and when it resumed, Mr Welsh asked the applicant again if he would do the work. He refused and was then handed the letter terminating his employment. He was told to collect his belongings and was escorted from the office.

Mr Joseph Jamhour

[24] Mr Jamhour has worked for the respondent, or its related entities for over 20 years, and has been in his present role of Group General Manager, Architecture and Software Development, for over 3 years. Mr Jamhour denied that the November 2019 Tournament did not apply to the applicant. It was an essential skill for all Developers.

[25] Mr Jamhour had also organised a CUSCAL migration meeting on 13 November 2019, and reminded the applicant that his attendance was required. He failed to attend and after waiting 15 minutes, Mr Jamhour cancelled the meeting.

[26] Mr Jamhour said his role in the first disciplinary meeting was to provide technical support to Mr Welsh. Ms Sangha took notes. The applicant declined an invitation to have a support person present.

[27] Mr Jamhour said that when the meeting adjourned, management decided to issue a formal warning, having regard to:

(a) the Leave Management Policy and Workplace Conduct and Performance Policy;

(b) the applicant acknowledging that he did not follow the Leave Management Policy, failed to notify Mr Arsiwala, arrived to work late and did not complete a full day’s work (7.5 hours);

(d) the applicant’s conduct was inconsistent with the respondent’s expectations and breached trust; and

(e) the respondent’s company policies were clearly ignored with no proposed change in behaviour from the applicant.

The corrective action is set out above at [15] above.

[28] Mr Jamhour was on leave at the time of the second disciplinary meeting. However, as a result of the applicant’s refusal to perform work in relation to the Warehouse Project, a third disciplinary meeting was held on 16 December 2019. Mr Jamhour recalled the conversations of the meeting as recorded in the notes and referred in particular to the following exchange he had with the applicant:

‘Applicant: You are watching my time whereas everyone else is taking longer breaks, this is unfair. I raised this unfairness in an email, and Joe has acknowledged it.

Mr Jamhour: You have misunderstood what I meant by ‘acknowledge’. Acknowledging your email does not mean that I agree with its contents, it just means that I am confirming that I have received it.’

[29] Mr Jamhour recalled the applicant reaffirmed his refusal to complete the task. He was given further time to consider Mr Welsh’s warning, that his employment may be terminated. Mr Jamhour left the meeting at this point and did not return.

Ms Jasreen Sangha

[30] As the respondent’s HR Consultant – NSW, Ms Sangha is responsible for the operational aspects of the ‘employee life cycle’. This relates to staff turnover, position changes, requests for flexible work hours, performance management and other related matters.

[31] In an amended statement, Ms Sangha said she was advised in November 2019 by Mr Arsiwala of the applicant’s failure to attend the Tournament. He did not notify that he would not be attending; nor did he seek approval to work from home that day. On 14 November 2019, Mr Jamhour informed her of the applicant’s failure to attend a meeting with him. Earlier that day, Ms Sangha then invited the applicant to attend a disciplinary meeting on 15 November 2019 at 9am with herself and Mr Will Fenton-Smith. He declined to attend and arrived for work at 10am. After advising Mr Welsh, it was decided to stand the applicant down on full pay, until further notice.

[32] Ms Sangha and Mr Fenton-Smith informed the applicant of his suspension. Access to his work emails was revoked during his suspension. A further meeting was organised for 20 November 2019 with Mr Jamhour and Mr Welsh. Contrary to the applicant’s assertion, the warning from this meeting was not pre-typed. Ms Sangha recalled the conversation in the meeting and its outcomes, which corroborates Mr Jamhour and Mr Welsh’s evidence. She specifically referred to the applicant’s working from home privileges being removed, and he was to start work at 9am. She recalled the applicant replied ‘OK, no problem. Ali Arsiwala also needs to do his own duties’.

[33] Ms Sangha said the applicant failed to comply with the outcomes of the meeting and referred to the applicant’s access card records showing his start and finish times from June to December 2019. Ms Sangha attended the second disciplinary meting on 2 December 2019 and noted Mr Arsiwala had to get the applicant from his desk after not turning up on time. The applicant received a second warning for his continued failure to attend work as directed and for failing to notify Mr Arsiwala before 9am, if he was to be late.

[34] In the third disciplinary meeting after the Warehouse Transfer Facility incident, Ms Sangha recalled the applicant said:

‘I won’t be starting at that time. I am only attending this meeting for the sake of saying I attended.’

[35] In discussion about the Warehouse Project incident, the applicant was told the work had been reviewed and a Senior Developer should be able to complete the task. The applicant responded that he was 100% certain he was not going to do this work, unless the respondent changed his position title. Mr Welsh emphasised that the work request was reasonable and if he continued to refuse, his position was at risk. He received a further warning and was told to reconsider his position. After a 30-minute break, he continued to refuse the work and was dismissed. Ms Sangha had prepared the draft termination letter. Mr Welsh had emphasised that he was terminated because:

(a) he refused to complete the work as required;

(b) there was no other work available to him, and

[36] Before her cross examination, the applicant objected to Ms Sangha’s amended statement, as it had included new text and some text had been deleted. I directed that if the applicant wished to respond to the new material, he had an opportunity to do so, and recall Ms Sangha for further questioning on the second day of hearing on 14 April 2020. Ultimately, Ms Sangha was not recalled.

Mr Richard Welsh

[37] Mr Welsh has been NSW/ACT HR Manager for Fuji for six and a half years. He spoke regularly to his HR Team direct reports, including Ms Sangha. Mr Welsh referred to the respondent’s Workplace Conduct and Performance Policy as to various breaches of conduct such as:

(a) repeated lateness;

(b) poor time keeping;

(d) failure of an employee to take reasonable steps to inform their manager in advance by telephone they are going to be late or absent from work. SMS text messaging, email and calls to reception are not acceptable means of communicating lateness/absence;

(e) disobeying reasonable work instructions, policies or procedures; and

(f) failure of an employee to obtain consent from their manager for being Fuji requires new employees during induction to be made aware of the Code of Conduct and various policies, and all employees are required to complete annual training on these policies.

[38] It was Mr Welsh’s decision to take action in respect to the applicant’s conduct through formal counselling. When the applicant declined to attend this counselling on 15 November 2019, he recommended to Mr Jamhour that the applicant be stood down as he considered him a risk to the business. Mr Grieves had agreed with this decision.

[39] Mr Welsh attended the applicant’s first disciplinary meeting on 20 November 2019, and expressly asked if he wanted it to proceed without a support person. He had agreed. Mr Welsh determined that a written warning was fair, equitable and appropriate, having regard to the following factors:

‘(a) the Leave Management Policy and Workplace Conduct and Performance Policy;

(b) the Applicant agreeing that he did not follow the Leave Management Policy, failed to notify his manager, Mr Ali Arsiwala, arrived to work late and did not complete a full days' work (7.5 hours);

(d) the Applicant's conduct was inconsistent with the expectations and values of the Respondent;

(e) the Respondent's company policies were clearly ignored with no attempt to demonstrate any change.’

The warning included the corrective measures referred to elsewhere in this decision.

[40] Mr Welsh also attended the second disciplinary meeting (2 December 2019) and a second warning was issued based on similar facts and with corrective actions required. On both occasions, the applicant was warned that further policy or direction breaches may result in the termination of his employment.

[41] In the third disciplinary meeting (16 December 2019), Mr Arsiwala raised two ongoing concerns:

(a) the applicant's failure to follow directions from Mr Arsiwala and Mr Jamhour regarding attendance, time-keeping and punctuality; and

(b) the applicant's refusal to undertake the Warehouse Project, as directed by Mr Arsiwala.

[42] In respect to the first concern the applicant had replied:

‘34. In response to the first concern, the Applicant responded words to the effect of "it is fucking nonsense that you have asked me to come in at 9.00 AM. I will not be starting at that time."

35. I asked the Applicant, with words to the effect of "can you explain why you are unable to come in at the directed time of 9.00 AM?"

36. The Applicant responded words to the effect of "I have nothing further to say. I only attended this meeting for the sake of it". As the Applicant refused to explain his refusal to attend work at the directed time of 9.00 AM, we moved onto the second concern – the Applicant's refusal to do work.’

[43] As to the second concern, Mr Welsh had explained the work was not web development and that a Senior Developer should be able to complete this work. The applicant restated he would not do the work, and added his response would not change ‘unless my position as Senior Developer is changed to a leadership position’. Mr Welsh confirmed there would be no promotion and the task did not require such a promotion. Mr Welsh said the applicant replied:

‘I cannot deliver on this work and I prefer the business terminate my employment as I cannot contribute to this project.’

[44] Mr Welsh advised the applicant he would be given a final warning and be given an opportunity to agree to work on the Warehouse Project. During a 30-minute break, Mr Welsh drafted and printed the Employee Counselling Form with the final warning and directed Ms Sangha to prepare a termination letter, should it be necessary. He also consulted Mr Grieves who agreed the applicant should be dismissed if he refused the direction to complete the tasks.

[45] Upon resumption, and when asked if he had changed his position, the applicant replied: ‘I confirm my response remains unchanged and I will not be doing the work’. Mr Welsh then dismissed the applicant and provided him with a formal letter terminating his employment. He was paid with four weeks’ notice and a further week, given the time of the year.

[46] Mr Welsh believed reinstatement was not a viable option as the working relationship had completely broken down, with no compromise from the applicant.

Mr Kiani’s reply statement

[47] In a reply statement, the applicant put the following:

(a) a valid reason must be limited to the reasons given by Fuji of the time of dismissal;

(b) some of the work referred to was why Ms Bhasi was hired. As he had reviewed the applications and products, he had grouped the work into two – work for him and work for Ms Bhasi. He had sent many emails explaining why certain tasks were not related to him and outside his scope.

(c) Mr Arsiwala’s original title was ECM Team Lead. As ECM is not about software development, he was concerned that Mr Arsiwala could not provide the appropriate supervision to Ms Bhasi. He challenged Mr Arsiwala’s knowledge of being able to select the right candidate when Ms Bhasi was hired.

(d) While he was not dismissed for unsatisfactory performance, he believed the reason may have been his ‘beyond expectation’ performance. Mr Jamhour and others may have been upset with others who had underperformed when he had over performed.

(e) The applicant continued to insist the warnings he received were pre-typed and prepared before disciplinary meetings because:

(i) the duties in the warnings are the same as the meeting minutes;

(ii) accusations were made meaning HR were discussing the matters before discussing them with him and had decided he was at fault; and

(iii) Ms Sangha acted as a support person for Mr Jamhour when HR was supposed to be independent.

(f) The termination letter that had been prepared indicates that they knew the work was not within his skillset or scope of position, and it was a made up reason for his dismissal.

(g) The applicant said he had worked the same hours since commencing employment and claimed others had spend two and a half hours out of the office at lunch time.

(h) If working from home was available for everyone, as stated by Ms Jamhour, this was denied to him.

(i) The start of the warnings in November 2019 indicates the respondent was gathering reasons to dismiss him.

(j) Mr Grieves did not approve of his dismissal because he left it to Mr Welsh and would not take direct responsibility.

(k) He did not sign the Employee Counselling Form because he disagreed with their contents.

(l) He did not refuse to attend the CUSCAL meeting with Mr Jamhour because he did not reschedule it.

(m) Because Ms Sangha had said Mr Grieves had approved the termination if the applicant refused to complete the work, then from Mr Greives’ point of view, the other reasons were ‘excuses’.

(n) The applicant denied using some of the language and phrasing attributed to him.

(o) Mr Arsiwala had a ‘major conflict of interest’ in agreeing the Warehouse Project did not need a promotion.

(p) Mr Arsiwala’s position, scope and expertise were confusing.

(q) The applicant had always followed the internal escalation procedure for matters of concern and his issues were of benefit to the business.

[48] In respect to reinstatement, the applicant said:

‘a. I have done absolutely nothing wrong and nothing which made any harm to the company. Instead, I’ve contributed to the business a lot more that what I was expected. Based on the advice I provided to my manager and senior management there were major changes and improvements to the business.

b. There have been major and fundamental issues in the process which the respondent has followed.

c. A letter of resignation in this case is not going to help me finding another job. Considering that termination has happened right before Christmas shutdown period, a letter of resignation only raises alarms for the next employer as in normal conditions no permanent staff resigns right before Christmas.

d. My position with FujiXerox is a very senior position; finding a similar role which pays same salary and is in a practical location will definitely take quite some time. Needless to say the Corona virus outbreak might even make the job market tougher for the foreseeable future.’

Oral evidence

The applicant

[49] In cross examination, the applicant explained the DIPS which is used by various major banks. He agreed it was a legacy product in that it does not require new development. It deals mainly with change requests, rather than changes in the product itself. He estimated spending about 6-12 months on this project.

[50] When asked about the 13 November 2019 Warrior Tournament, the applicant argued he was invited to attend, but he did not believe he needed to attend and declined to do so. He diverted his answers to say that it was not clear who he reported to – Mr Arsiwala or Mr Jamhour. He agreed Mr Arsiwala was his direct Manager and Mr Arsiwala reported to Mr Jamhour. He said he attended various meetings with different managers, including Mr Grieves. He then accepted that on 12 November 2019, Mr Jamhour directed him to attend, and he responded: ‘Thanks for organising this, this doesn’t apply to me, hence sending ‘tentative’’. He did not attend and worked from home that day and believed his advice to Mr Jamhour was open and honest.

[51] When pressed, the applicant said he did not have the impression Mr Jamhour directed him to attend. There was a further exchange in which the applicant challenged Mr Jamhour and said the training did not apply to every Developer. Mr Jamhour responded and said: ‘It can and does apply to every Developer within our group.’ Mr Jamhour had said: ‘It is a reasonable management direction that I expect you to attend this team event. If otherwise you choose not to, then we will have to discuss next steps’. The applicant believed ‘it was perfectly fine’ to work from home and he had followed procedures. He then claimed Mr Jamhour was not in a technical position and ‘people who organised this didn’t know their stuff’.

[52] As to the CUSCAL meeting, the applicant claimed he was about to attend, but Mr Jamhour said to him it would be rescheduled. He agreed it was to be rescheduled because he was late, but this was normal in the office and in any event, Mr Jamhour never rescheduled it. The applicant claimed he did not receive the invitation several days earlier as he was suspended and unable to access his emails. It was pointed out the invitation was sent 4 days before his suspension on 15 November 2019.

[53] The applicant then said that the Windows operating system on his PC and laptop were being upgraded at the time and he may have missed the email. It was pointed out that a follow up invitation was sent on 13 November 2019 and agreed he might have received it – but ‘it’s not a big deal’ and he had intended to attend. When asked why it was not a big deal, because he believed he could just turn up if he felt like it, he answered that being late was ‘quite normal in the office’.

[54] The applicant then accepted that he was 15 minutes late and when he saw Mr Jamhour approach his desk, he put some food on the desk and told Mr Jamhour he thought he was not required to attend. The applicant agreed he received a warning on 20 November 2019 in a meeting with Mr Jamhour, Ms Sangha and Mr Welsh. His working from home was revoked and he was required to commence work at 9am and work 7½ hours. He was also told that any further issues of misconduct may result in the termination of his employment and he was to raise any issues with Mr Arsiwala. He received a written warning the next day but claimed it did not reflect what was discussed at the meeting and now included issues of performance. The applicant agreed that the very next day, he arrived for work at 10am, but explained this was normal in the office.

[55] The applicant was questioned about his sick leave absence on 28 November 2019. He had emailed Mr Jamhour, despite having been told to raise any issue with his direct Manager, Mr Arsiwala. He believed Mr Jamhour would inform Mr Arsiwala, in any event. There was also confusion about who was his Manager. He did not accept Mr Arsiwala as his manager and said he was just a ‘message broker’.

[56] When shown the following reference to what was said in the 2 December 2019 meeting: ‘I will be doing whatever I have been doing and will not be changing’, the applicant claimed these were not his exact words. In any event, this was about a specific issue of his timekeeping, which he said was not of any concern because the hall clock was faulty. He agreed he admitted to not following the policy, by not contacting Mr Arsiwala when he was absent. He then claimed the policies may be different because they had been updated. He denied deciding for himself whether he would comply with Company policies or not. He understood from the outset, that the focus was on work quality, rather than fixed start and finish times. He agreed he refused to sign the second written warning, because he did not agree with it.

[57] The applicant was then asked about his refusal on a number of occasions to work on the Warehouse Project. He claimed he did not know the details of this work, as he had no responsibility for it. He had told Mr Arsiwala that he should get someone else to do it. The applicant was referred to various emails from Mr Arsiwala explaining the work directing him to do it and setting him a five-day timeline to complete the work. After refusing to do the work again, he was directed to attend a third disciplinary meeting and told he could bring a support person. At this meeting, he was again told to do the work, but he could not agree. He had also objected to starting work at 9am. Management left the meeting for 20 or 30 minutes and when they returned, he was given a final warning and a termination letter. The applicant denied that he had been warned earlier in the meeting, that if he persisted in refusing to do the work, he would be dismissed. He was surprised with being terminated because ‘it was absolutely baseless’. The applicant claimed that the earlier warnings he was given were designed to intimidate him into resigning.

[58] The applicant was asked about the API Gateway ‘off the shelf’ project and said he was the most technically skilled person at the Company. He did not answer directly whether his view was that he would decide what work he would do, and what work he would not do. Nevertheless, he was the most experienced person, with a sharp focus, and his ideas had ‘saved the business a lot’. The applicant was also equivocal when asked if he believed Mr Arsiwala should have been his Manager. He also denied only attending training if he wanted to, despite it being compulsory.

[59] The applicant was asked if he had been seeking alternative employment. He said he applied for one job since December 2019, but could not recall the name of the company. Despite claiming to have held a very senior position in the Company, he had four levels of management above him and had no employees reporting to him.

Mr Arsiwala

[60] In further evidence in chief, Mr Arsiwala said there had been other occasions when he had asked the applicant to do certain jobs, and he had found reasons why he could not do it, notwithstanding the work was expected for a Senior Developer. Mr Arsiwala further explained that the applicant’s criticism of him for exercising at lunch time, by stating that the shower facilities were on Level 6 and the applicant worked on Level 5. He would frequently confer with colleagues and attend meetings on Level 6 when the applicant, would have no knowledge of what he was doing.

[61] In cross examination, Mr Arsiwala said the first instance of the applicant refusing to do work was for the inbound network for Ms Jenny Leong. The next instance was 12 months later with the API Gateway issue. Mr Arsiwala could not be specific about when he first noticed the applicant not arriving to work on time (as he did not make notes) but believed it began in the first 6 months of 2019. Other people would advise beforehand of lateness or going home early. There were reasons for flexible hours, such as childcare or for other family reasons, but he did not micromanage this. It was based on a mutual understanding between employee and manager.

[62] Mr Arsiwala disagreed with the applicant about his refusal to do Ms Wang’s work. He was directed to do it, despite Ms Wang being the Architect responsible. Mr Arsiwala said he had emailed the applicant with the design details and approach and had arranged for a one hour workshop with the applicant and Ms Wang. He had no doubt the applicant could do the work. The work was later given to another Developer who completed it in 24 hours over 7 days, without any issue or further detail being required. Mr Arsiwala was not aware if Ms Wang had been criticised by Mr Grieves for failing to provide the design documentation.

[63] Mr Arsiwala said the applicant had also refused to do work on the CUSCAL migration project which had taken over six months to deliver, involving a five person team. After explaining his background, study and experience, Mr Arsiwala denied that he was not a technical person, he was just not from a software development background. He did not provide technical guidance to Ms Bhasi because she was already experienced and could call on a technical lead or an Architect, when necessary. His role was to provide people and resource management advice to her.

[64] As to the Warehouse Project issue, Mr Arsiwala agreed the applicant had been sending emails for a year in which he had claimed the warehouse applications were not related to him. However, it was not for the applicant to decide which applications applied to him and which did not. Further, despite the applicant suggesting the task was for a more senior person, management did not believe it warranted a promotion as it was work appropriate for a Senior Developer.

Mr Jamhour

[65] In further evidence in chief, Mr Jamhour referred to the DIPS application which was a legacy application taking no more than a couple of hours a week, unless a client requested a particular project. As to the Warehouse Project, Mr Jamhour firmly believed the applicant was capable of doing the work on the basis of his experience and skills and what he stated in his own CV.

[66] As to the applicant claiming he had been told by him that Ms Wang had been criticised by Mr Grieves, that is not correct and he would not make that type of comment.

[67] In cross examination, Mr Jamhour was asked about the number of meetings he had with the applicant, without Mr Arsiwala attending. He said that in seeking to resolve issues, he might speak to anyone involved without their Manager, but with the Manager’s knowledge. Given the applicant had CC’ed Mr Grieves into emails, he believed it was sometimes best to deal with the applicant directly. Mr Jamhour said he was not involved in every single interaction the applicant had with others, as he was comfortable with their information and feedback. Mr Jamhour had advised the applicant about CC’ing in Mr Grieves with all of his issues that should be addressed at other management levels. However, he had no issue with him doing so. Mr Jamhour had felt that on occasions when management had made decisions involving the applicant, and it appeared the issue was moving forward, it later turned out not to be the case.

[68] Mr Jamhour spoke in detail about Mr Arsiwala’s role as one of two Lead Delivery Managers. It does not necessarily mean he is instructing on design. This is what the Architects and Senior Developers are involved in. Mr Arsiwala could still allocate work with, or without a technical background. However, having a technical hands-on role is not a requirement of Mr Arsiwala’s role and is not relevant. Mr Arsiwala has strong product knowledge which allows him to navigate and manage product resources.

[69] Mr Jamhour could not recall the details of the API Gateway issue and had relied on what their Manager, Mr Yoro, had told him. Despite the applicant making suggestions about the project, some of them could not be followed through and did not meet the client requirements. The issue had escalated to him. Mr Yoro has since left Fuji. Mr Jamhour could not recall if the vendor had been contacted. Mr Jamhour recalled responding by email to all of the applicant’s suggestions to divide the applications into two groups.

[70] As to the meeting invitation from Ms Sangha on 14 November 2019, Mr Jamhour said the applicant’s performance was described only in general terms and there were specific issues of concern as well. Mr Jamhour had not drafted the email invitation. Mr Jamhour said the decision to terminate the applicant’s employment was a joint decision, based on the applicant’s refusal to do a particular body of work, consistent with all his efforts to try and make the employment relationship work.

[71] As to the Warrior Tournament, Mr Jamhour denied it was solely about engagements; it was part of the Company’s security coding and awareness program and continuous improvement. Every developer was required to attend, with it being optional for Architects.

[72] As to the CUSCAL migration meeting, Mr Jamhour said the applicant knew he had to attend the meeting with two others. They waited for 15 minutes and Mr Jamhour asked the applicant, who was at his desk, if he had intended on joining the meeting. Mr Jamhour could not delay it and said: ‘I’ll look to reschedule’. After thinking about it later, he decided not to.

[73] Mr Jamhour said that given there are approximately 55 staff in his Department, he could not recall when the issue of the applicant’s timekeeping was raised. He believed it was around the time of the first warning in mid-November 2019.

Ms Sangha

[74] In cross examination, Ms Sangha was asked what she meant in the first meeting invitation about it being related to the applicant’s performance. She noted the invitation did not refer to ‘poor’ performance, and in any event, he was not dismissed for performance.

[75] Ms Sangha was asked when she had typed the 20 November 2019. She answered that it was after the meeting. There were further questions about the three meeting invitations. As these were not included in the evidence, I directed they be filed prior to the next day of hearing. The invitations read as follows:

15 November 2019:

‘Hi Ali

This meeting has been set to formally discuss your performance and conduct in response to events that have taken place.

You do have the option to bring a support person with you to this meeting and will need to inform us who that is prior to the meeting.

Regards

Jasreen’

2 December 2019:

‘Hi Ali,

Following on from our discussion and the email, this is the formal meeting invite for Monday.

You are welcome to bring a support person with you to this meeting.

Kind regards,

Ali Arsiwala’

16 December 2019:

‘Hi Ali

This meeting will be a formal discussion about your refusal to do work given to you and your time keeping.

You are welcome to bring a support person with you to this meeting.

Kind Regards,

Ali

[76] In further questioning, Ms Sangha said she had not told the applicant that one of the reasons for his suspension on 15 November 2019, was that key decision makers were not in the office that day. Ms Sangha explained that when the applicant refused to speak to her that day, she advised Mr Fenton-Smith who made the suspension decision. Ms Sangha could not recall sending an email in November or December 2019 about swiping access cards, or what the issue concerned.

Mr Welsh

[77] In further examination in chief, Mr Welsh agreed he had no independent knowledge of the applicant’s ability to do the Warehouse Project work, and had relied on Mr Jamhour and Mr Arsiwala’s knowledge.

[78] In cross examination, in answer to the suggestion that the applicant’s third warning letter and the termination letter were pre-typed before the meeting on 16 December 2019, Mr Welsh said he typed up the warning letter in the break during the meeting, as is clearly evidenced by the fact it notes the applicant’s responses and the warning letter in the earlier discussion. Mr Welsh said that the first time he was aware of concerns with the applicant’s timekeeping was when it was brought to his attention by the applicant’s Managers. Mr Welsh was ‘absolutely concerned’ about this issue. Mr Welsh said that if, as the applicant claimed, he was doing nothing differently for two years, then this was poor performance management supervision by the previous Manager, Mr Yoro. Mr Welsh did not know what the applicant had been doing in the first 2 years and with some 470 employees, he did not monitor start and finish times.

[79] As to the means of advising of absenteeism, Mr Welsh said it was up to individual Managers as to what was preferred. For example, he does not accept emails, but will accept SMS messages. However, the policy does not accept emails or calls to reception.

[80] Mr Welsh was asked what he meant when he said the applicant had been suspended because he was a risk to the business. Mr Welsh cited the applicant’s erratic behaviour and his dismissiveness of his Manager’s instructions. Given the sensitivity of some of the business’ information, he was deemed to be a risk. His failure to attend the disciplinary meeting was all part of his behaviour. Mr Welsh denied that the main reason for the suspension was that key management were not in the office at the time. The applicant did return after a couple of days, but this was when managers were onsite and could observe and manage his behaviours.

[81] Mr Welsh said that despite the applicant refusing to sign the warning forms, he had admitted to not following the leave management protocol by working 7.5 hour days.

[82] As to the applicant proposing he be promoted, Mr Welsh said that even if the task warranted promotion (which it did not), he would not promote an employee on a recent second and possibly third warning. It would not be in the Company’s interest to do so.

[83] Mr Welsh confirmed the sequence of events in the two meetings on 16 December 2019 and agreed the second meeting went no longer than 10 minutes.

[84] Mr Welsh said he was not aware of Ms Sangha’s technical ability, but this did not mean Mr Arsiwala would not send her and HR details of the applicant’s refusal to do work after being directed to do so and being competent to perform the work.

SUBMISSIONS

For the applicant

[85] The applicant referred to the questions he had asked of the respondent’s witnesses and his criticism of their answers. These included in respect to Mr Arsiwala:

(a) Tasks for DIPS were never sent to him via the issue tracking system – only via email. Tasks could not be requested by the support team, and Mr Arsiwala failed to mention that the accounts manager could also request tasks. Mr Arsiwala had no knowledge of his work in the first years, as his manager was Mr Paul Major.

(b) Mr Arsiwala could not be precise about when he noticed his timekeeping. To say the first half of 2019, was a very big range and had it been an issue, then why did he not reprimand him on the first occasion and waited so long to bring it up?

(d) As to the Warehouse Project issue, it was not a recent issue and he had been emailing management about a need for a review. Further, if it was not a design issue, then it was not a code issue either; so he did not understand why Mr Arsiwala wanted him to fix it.

(e) As to the Warehouse Project, Mr Arsiwala acknowledged he had not responded to his emails dividing up the applications into two groups – one for him, the other for Ms Bhasi. As Mr Arsiwala told him he could not divide the applications, then had had no authority to do so.

[86] In respect to Mr Jamhour’s evidence, the applicant said:

(a) It was Mr Jamhour’s decision not to invite Mr Arsiwala to important meetings, when Mr Jamhour met directly with him.

(b) Mr Jamhour conceded he had followed procedure in escalating matters to Mr Grieves.

(d) As to the CUSCAL meeting, Mr Jamhour did not reschedule the meeting as he had indicated to him.

[87] In respect to Ms Sangha, the applicant said:

(a) Ms Sangha did explain what she meant by ‘performance’ in the counselling invitation and then said it was not about poor performance.

(b) Ms Sangha decided that his suspension was due to the absence of any decision makers on site.

[88] As to Mr Welsh’s evidence, the applicant said:

(a) The Warehouse Project was web development as he had been questioned about ASP.NET, despite Mr Welsh claiming it was not web development.

(b) Having warnings which he disagreed with, was not a reason for not promoting an employee. Mr Arsiwala had a ‘conflict of interest’ in agreeing the Project did not require a promotion.

(c) The reasons for his termination which were not proved, was that the Warehouse Project was not web development and did not need a promotion.

(d) The time between the third and final warning and dismissal was a few minutes. This was unfair and unreasonable.

[89] The applicant submitted that he should not have received a first warning and that all that should have happened was a ‘friendly informal chat’. He should not have been criticised for working from home and not attending the Warrior Tournament. He believed the management were gathering warnings. The final warning was invalid because Mr Arsiwala was not even in the disciplinary meeting.

[90] As to the warning for failing to attend the CUSCAL meeting, the applicant agreed he was 10 minutes late; but Mr Jamhour agreed to reschedule it and never did. This warning was ‘absolutely unfair’.

[91] The applicant further submitted that although he may have reasonably refused work, there were plenty of other examples, when he accepted work. The applicant put that none of the uncompleted tasks related to him, so rejecting them as a senior employee, could not be a refusal to do work. He had successfully completed many other tasks and jobs.

[92] In answer to a question from me as to his attempts to look for other work, the applicant firstly said he did not do so because if he was asked by a prospective employer as to why he left his other job, it would not be good to admit he was dismissed for misconduct. Secondly, it would also not look good to resign before the Christmas shutdown period. Thirdly, he was earning a ~$120,000 base salary with Fuji and at this level it would take time to find a similar role. This is why he is seeking reinstatement.

For the respondent

[93] In relying on the respondent’s written submissions, principally addressing s 387 of the Act, Mr Fredericks further submitted as follows.

[94] The reason for the applicant’s dismissal was his refusal to follow a lawful and reasonable direction in December 2019. Mr Fredericks noted that much of the applicant’s evidence and submissions traversed over the period of 2018 and 2019, as to what other employees may, or may not have done, or what work they may, or may not have been capable of. This was not relevant to the valid reason in December 2019.

[95] Mr Fredericks put that what is clear from the evidence, including from the applicant himself, is that it is up to him:

• what work he does or does not do;

• when he turns up for work and when he leaves work;

• who is his manager and who he deals with;

• what meetings he attends;

• what training he undertakes;

• what policies he decides he can comply with; and

• the respondent must agree and adapt to what he wants to do and how he is to do it.

This is not how the employment relationship works.

[96] Mr Fredericks submitted that much of the applicant’s cross examination was simply the applicant’s assumptions of what he expected and was of dubious relevance, in any event.

[97] As to the applicant’s poor timekeeping, it was irrelevant when Mr Arsiwala first noticed his lateness. The fact was he was late on numerous occasions and Mr Arsiwala only became his Manager in July 2019. It was also irrelevant when the Warehouse Project began or whether it was new work. The fact was the applicant was capable of doing the work and he refused a direction to do so.

[98] Mr Fredericks said that the fact Mr Jamhour met the applicant was not unusual or confusing. It did not detract from Mr Arsiwala’s role as his direct manager. Further, it was not necessary to escalate every issue to Mr Grieves. Mr Jamhour did not support the applicant doing so; rather, he gave him a hint by suggesting he use his judgment when doing so.

[99] Mr Fredericks said the issue of the CUSCAL meeting was not its rescheduling, but the applicant being 10 minutes late for a 30-minute meeting with a Senior Manager. He had been notified twice the day before. The fact Mr Jamhour did not reschedule the meeting, does not somehow excuse the applicant’s conduct. It was entirely appropriate to give him a warning in these circumstances.

[100] As to Ms Sangha using the word ‘performance’ in the counselling meeting invitation, Mr Fredericks said this is irrelevant and probably reflects no more than the title of the relevant policy – Workplace Conduct and Performance Policy.

[101] Mr Fredericks said that given the circumstances, it ‘beggars belief’ that the applicant somehow believed he was entitled to a promotion. Mr Welsh had relied on Mr Arsiwala and Mr Jamhour’s expertise to advise him the Warehouse Project was not ‘web development’. Further, given the applicant’s CV and background and a review by senior employees, it was entirely reasonable given the applicant’s skills and knowledge, for him to do the Warehouse Project work. He refused to do so – not once – but on numerous occasions. It seems clear the applicant focused on issues with Mr Arsiwala’s skills and expertise and his management of him, rather than addressing his own behaviour.

[102] Mr Fredericks submitted that Mr Arsiwala and Mr Jamhour were credible witnesses and given their knowledge, experience and expertise, their technical opinions should be accepted. Further, there can be no criticism of Ms Sangha, or the process of issuing warnings through an Employee Counselling Form. The fact they record the discussion in the meeting and the applicant’s responses, which are not in dispute, demonstrate they were not prepared in advance.

[103] Mr Fredericks submitted that all of the warnings were valid and appropriate and arose directly from the conduct of the applicant. Management gave corrective directions which he failed to address. As to the final warning and termination on the same day, it was appropriate that Mr Welsh had asked the applicant a number of times in the context of him refusing to perform the Warehouse Project work, as a risk to his employment. He maintained his refusal and even issued an ultimatum for a promotion. He was asked again after the meeting’s adjournment and he replied:

‘I will definitely refuse to take on this work and my response is not going to change unless my position as senior developer is changed to a leadership position.’

[104] While accepting the gap in the meeting was 20-30 minutes, it was entirely appropriate, when the applicant had given such a definitive and unequivocal response, and given one last chance to change his mind. It would not have mattered how long the applicant was given to think about it – he was only going to do the work if he was promoted – something highly unlikely for someone on three warnings. Mr Fredericks said that there were no procedural unfairness issues and even if there were, they were so minor and irrelevant to the outcome, that they would outweigh the seriousness of the applicant’s conduct.

[105] Mr Fredericks submitted that reinstatement was inappropriate, given the applicant’s attitude and conduct, his lack of contrition and the unlikelihood of him complying with Company policies and management direction in the future. In addition, on his own evidence, the applicant had made no attempt to mitigate his loss and was paid five weeks’ notice in a serious misconduct case.

[106] In reply, the applicant repeated his earlier submissions in defence of his arguments, and I do not repeat them. He added that he had made one application for a job through a recruitment agency.

CONSIDERATION

Preliminary matters

[107] Before considering the merits of this application, a number of preliminary matters must be determined in accordance with the intersection of s 385 of the Act, as to the definition of an ‘unfair dismissal’, and s 396 referring to these initial matters. I set out both sections below:

385 What is an unfair dismissal?

A person has been unfairly dismissedif the FWC is satisfied that:

(a) the person has been dismissed; and

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

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

396 Initial matters to be considered before merits

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

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

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

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

[108] At this juncture, I make the following preliminary findings:

• The applicant’s unfair dismissal application was lodged within the 21-day time limit set out in s 394(b) of the Act;

• The applicant was a person protected from unfair dismissal in that:

• he had completed the minimum employment period (employed for two and a half years), set out in s 382 and s 383 of the Act; and

• he was employed under a Contract of Employment dated 7 April 2017 and, in any event, his annual rate of earnings was less than the high income threshold (s 382(b)(iii).

[109] As neither sub-s (c) or (d) of s 396 are relevant to this matter, the only remaining definition of an unfair dismissal to be determined, is whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’ (s 385(b)). I shall return to this matter shortly.

The evidence

[110] Regrettably, rather than focusing on his ongoing, open defiance of management directions, properly characterised as unacceptable behaviour, I might add, the applicant spent most of his time deflecting from his own conduct by concentrating on his misplaced criticisms as to the experience, skills and capabilities of his former work colleagues, including directly questioning and criticising the authority and capacity of Senior Managers. This evidence was mostly irrelevant and unhelpful to assisting the Commission as to the relevant issues in this case. I am bound to observe that the applicant’s heightened sense of superiority and self-importance was delusional and a far cry from reality; almost being beyond belief. If was as if the applicant operated in a parallel universe as to what was expected of a responsible employee in a functional, efficient and effective workplace. His utter defiance of management directions was identified on many occasions and is illustrated by a few examples:

(a) After being directed and reminded to attend the Tournament Training for all Developers, he decided not to go and work from home instead.

(b) After being told his first point of escalation of any issues, including phoning in if he was running late or not coming to work, was to his direct Manager, Mr Arsiwala, he continued not to do so, and even CC’ed in the CTO, Mr Grieves, about any issue, no matter how trivial.

(c) Unbelievably, having been given a formal first warning and directed to commence work at 9am, the very next day he arrived at 10am (without any explanation other than everyone else has flexible hours).

(d) Despite continuing warnings, he continued to arrive late and leave early and maintained throughout that he had no intention to change what he had been doing in the previous two years.

[111] In my view, this was an employee, who for reasons best known to himself, had an overblown and unjustified sense of his own importance and value to the business (as he said many times). My assessment is that the applicant was an arrogant employee who had a misplaced view, that he knew what was best, and he would decide:

• what work he would perform and when he would do it;

• when he would turn up for work and when he would leave work;

• who he would report to and who he would take direction from; and

• that unless Senior Managers agreed with his views and concerns, he was entitled to defy their instructions and directions.

[112] Unfortunately, to observe that the applicant’s continued employment had become untenable and unworkable would be an understatement. Despite the respondent’s perseverance, patience and directed corrective actions, the applicant’s employment was soon hurtling towards finality. The final act of defiance was the applicant’s persistent refusal to undertake the Warehouse Project, despite knowing full well, the consequences of doing so.

[113] Ironically, the applicant did not realise he demolished his own arguments as to why he refused the direction to perform the Warehouse Project, by his ludicrous ultimatum that he would not do the work, unless he was promoted to a leadership role. Putting aside it would be a foolish Manager who would promote an employee with two recent, and possibly three formal warnings, which had been treated with disdain, it was obvious that it was not that he did not have the expertise and capacity to do the job, but he would only do so if he was promoted; so much for a lack of skills or capacity – this had nothing to do with it. His excuses were a sham.

[114] Further, elsewhere in his evidence the applicant frequently sung his own praises by describing himself as the best, most valuable and most senior Developer in the business (notwithstanding he had no direct reports). Having ‘blown his own trumpet’, the applicant’s claims that he was not qualified or capable of the Warehouse Project work, are nonsense. I accept Mr Welsh’s decision, based on advice from Mr Arsiwala and Mr Jamhour’s backgrounds and experience, that the applicant was fully capable of performing the work and his refusal to do so, was a failure to follow a lawful and reasonable direction from his employer. In my view, the applicant’s dogged and unequivocal refusals, were based on an unjustified, misconceived and unrealistic opinion of himself, shared by few others.

[115] That said, the applicant struck me as an intelligent person with considerable experience and expertise. On one level, I accept he holds genuine beliefs and convictions. However, his reluctance to accept, or even concede, that which was otherwise self-evident concerns with his behaviour, is a deeply troubling aspect of the applicant’s evidence.

[116] His evidence was often rambling and irrelevant, and his answers mostly, unresponsive. He had an explanation or excuse for any proposition put to him with which he disagreed; no matter how preposterous or absurd. For example, he claimed that:

(a) There was no concern about his timekeeping because the hall clock was faulty.

(b) As Mr Grieves had not made the decision to dismiss him, Mr Grieves must have disagreed with it, notwithstanding Mr Jamhour’s evidence that Mr Grieves had approved of all the Management decisions.

(d) As Mr Arsiwala was not a software specialist, he was unqualified to be his Manager and could not direct him to perform work.

(e) Mr Arsiwala had no experience or knowledge to have hired and then manage Ms Bhasi.

(f) Matters later raised, but not raised as reasons for his dismissal, could not be used to validate his dismissal.

(g) Mr Arsiwala’s role was confusing, because Mr Jamhour sometimes spoke to him without Mr Arsiwala being present.

(h) Warnings were pre-typed, notwithstanding the Employee Counselling Forms containing the warnings referring to his responses in the meetings.

(i) He did not seek alternative employment because he wanted to be vindicated by the Commission’s decision and it would be difficult to explain the reason for his dismissal.

(j) Rather than being formally warned, he should have had a ‘friendly informal chat’.

(k) The third warning was invalid, because Mr Arsiwala had not attended the counselling meeting.

[117] In opinion, the applicant was a witness of little credit, whose evidence was mostly irrelevant and not directed to the issues in this case, notably his own conduct and behaviour. Where his evidence conflicts with that of the respondent’s witnesses, it is their evidence I prefer.

[118] It is against this background that I now turn to consider the criteria the Commission must take into account, pursuant to s 387 of the Act, as to whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’.

[119] Section 387 of the Act reads:

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.”

[120] Findings on each of these matters must be made, even if they are not relevant to the circumstances of a particular case. In this exercise, each matter must be given appropriate weight (including no weight or neutral, where not relevant) having regard to the findings of fact made by the Commission and taking into account the submissions of the parties. Where there is a statutory mandate to take into account a particular matter (as in s 387) means that it is a relevant consideration that the Commission is bound to take into account. So much so is evident from the decision of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend and ors (1986) 162 CLR 24 at [15] where His Honour said:

‘The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s.5(2)(b) of the ADJR Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions’

[121] I summarise these propositions from His Honour’s judgment as follows:

(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision.

(b) What factors a decision-maker is bound to consider in making the decision is determined by the construction of the statute conferring the discretion.

(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.

(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.

[122] The meaning of the phrase ‘harsh, unjust or unreasonable’ in the context of an unfair dismissal case, is found in the oft quoted judgment of the High Court (McHugh and Gummow JJ) in Byrne andFrew v Australian Airlines (1995) 185 CLR 410 at 465:

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

[123] I turn then to each of the discrete matters in s 387 of the Act.

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) – s 387(a)

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

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

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

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

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

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

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

Further matters to be considered under s 387 of the Act

[125] Subsections (b)-(e) of s 387 are generally grouped under the rubric of ‘procedural fairness’ or ‘natural justice’ issues. To highlight the importance of procedural fairness issues, I cite three authorities on the subject in unfair dismissal cases. In Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137 a Full Bench of the AIRC said at [73]:

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

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

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

[127] Nevertheless, procedural fairness steps should be applied in a common-sense and practical way. The next citation has a particular resonance to the circumstances of this case. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1, Wilcox CJ said at [7]:

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

[128] That a failure to follow a lawful and reasonable direction of the employer may ground a finding of valid reason for dismissal, is well established, a fortiori where the refusal is wilful and repeated (as was the case here).

[129] Lest there be any doubt, I cite the following passage from King v Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta; Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta v King [2014] FWCFB 2194. At [26], the Full Bench said:

‘[26] It is well established that an employee has an obligation, implied by law, to comply with the lawful and reasonable directions of his or her employer. The circumstances in which an employer’s direction will be lawful were described by Dixon J in The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan in the following terms:

“If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.” (endnotes omitted)

Further, in Briggs v AWH Pty Ltd [2013] FWCFB 3316 at [8]:

“[8] The determination of whether an employer’s direction was a reasonable one (there being, as earlier stated, no contest in this case that AWH’s direction was lawful) does not involve an abstract or unconfined assessment as to the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties. The proper approach to the task is that identified by Dixon J in The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan in the following terms:

"But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled."’ (citations omitted)

[130] I am satisfied, given the applicant’s two earlier warnings and his refusal to comply with Mr Walsh’s lawful and reasonable direction, that there was a valid reason/s for the applicant’s dismissal. I would add that it is nonsensical for the applicant to submit that his refusals to perform work was outweighed by the many occasions he had agreed to perform work.

Whether the employee was notified of the reason for his dismissal – s 387(b)

[131] Mr Walsh verbally notified the applicant on 16 December 2019 of the reason for his dismissal and followed it up by a letter confirming the reason. This is a neutral factor in this case.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person – s 387(c)

[132] The applicant was given an opportunity to respond to the reason for his dismissal. However, his only response was to refuse to comply with the direction to undertake the Warehouse Project work. He was given a number of opportunities to comply, but consistently refused to do so. While the applicant criticised the short period between the third counselling meeting and the termination meeting both on 16 December 2019, there was no denial of procedural fairness, as the applicant had nothing to say after being told of his possible termination, other than to refuse to comply with the direction, unless he was promoted. In these circumstances, there was no obligation on the employer to allow a further period of the reflection when the answer was going to be no different. Even to the point of this hearing on 24 June 2020, the applicant has not changed his objection to performing the work and he put nothing more than he had said on 16 December 2019. There was no denial of procedural fairness. This tells against a finding of unfairness.

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

[133] At all the formal counselling meetings and the termination meeting, the applicant was informed he could have a support person present. He declined to do so. This is a neutral factor in this case.

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

[134] The applicant was not dismissed for unsatisfactory performance; rather, he was dismissed for misconduct in failing to follow a lawful and reasonable direction in the context of ongoing and repeated instances of unacceptable behaviour and conduct. This is a neutral factor in this case.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal – s 387(f), and the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal – s 387(g)

[135] The respondent is a large organisation with dedicated human resource professionals who had been involved in the disciplinary and termination of employment processes. The respondent has a suite of relevant policies and procedures which were applied fairly and reasonably in respect to the last four months of the applicant’s employment. There can be no quibble with the respondent’s policies and procedures and their application to the applicant. The warnings given to the applicant were not pre-typed.

[136] Given the respondent’s knowledge of the applicant’s conduct and behaviour, it was entirely understandable that Mr Welsh had arranged for the preparation of a termination letter. If the applicant had simply accepted the direction to work on the Warehouse Project, the termination letter would not have been necessary. In fact, he might still be employed to this day, if his arrogant attitude to directions and compliance with Company policies and procedures had fundamentally changed. These factors tell against any finding of unfairness.

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

[137] I have taken into account the applicant’s period of service and the difficulties he may encounter in securing commensurate alternative employment. These factors do not outweigh the seriousness of his conduct and behaviour.

[138] Another significant relevant matter, which I discussed in Hilder v Sydney Trains[2019] FWC 8412 (‘Hilder’) was the acknowledgement by the applicant in that case of his wrongdoing, his contrition and remorse for a ‘one-off’ incident of poor judgment, I said at [126]:

‘[126] Given the facts and circumstances of this case, in my opinion, there could hardly be a more meritorious and justified example of the ‘harshness’ component of the expression ‘harsh, unjust and unreasonable’, than the dismissal of Mr Hilder. Of particular significance for me in this case, unlike many other cases I have decided, was Mr Hilder’s openness, honesty, remorse and contrition, which I accept was genuine, well-intended and expressed from the outset of the investigation of his conduct. In this respect, I refer to a recent Full Bench decision of the Commission in Hatnell v EssoHatwell v Esso Australia Pty Ltd t/a Esso[2019] FWCFB 2895 which granted permission to appeal on two public interest grounds; one being:

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

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

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

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

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

[139] In the present case, none of the factors I found in Hilder were demonstrated by the applicant; indeed, here the applicant maintained a complete denial of any wrongdoing and a failure to accept warnings and comply with corrective measures, despite overwhelming and persuasive evidence to the contrary. There was no acknowledgement of any wrongdoing. Unsurprisingly, there was no apology, remorse or contrition.

[140] In these circumstances, I have no confidence that the applicant would conduct himself any differently to that which he displayed in the months leading up to his dismissal, if he was returned to the workplace. The risk to the Company is manifest and reinstatement cannot be an acceptable outcome in such circumstances.

These matters weigh against a finding of unfairness.

CONCLUSION

[141] It is a sad indictment that, if only the applicant had followed the basic directions of Fuji to attend meetings and mandatory events, and perform the Warehouse Project work, he might still be employed by the respondent. In the end, he was the architect of his own fate. It would have been a simple matter for him to have maintained his opinion that the Warehouse Project work was not within the scope of his job description, and/or that the Warrior Tournament would not be of benefit to his work, swallowed his pride, and made efforts to complete the Warehouse Project work and attend the Tournament. Had he done so, this case may never have arisen.

[142] For the abovementioned reasons and in weighing all of the matters the Commission is required to take into account under s 387 of the Act, I am satisfied that the applicant’s dismissal on 16 December 2019, was not ‘harsh, unjust or unreasonable’. Finally, s 381(2) of the Act is a significant overarching object of Part 3-2 – Unfair Dismissal of the Act. It is expressed as follows:

381 Object of this Part

(1) The object of this Part is:

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

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

(ii) the needs of employees; and

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

(i) are quick, flexible and informal; and

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

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

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

[143] The outcome in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both the applicant and the employer.

[144] Accordingly, application U2019/14425 is dismissed and these proceedings are concluded. I so order.

DEPUTY PRESIDENT

Appearances:

The applicant appeared for himself.

Mr G Fredericks of Counsel and Ms N Ali, Associate, Norton Rose Fulbright, for the respondent.

Hearing details:

2020.

Sydney:

6 and 14 April.

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