Allan Agustin v Monash Health
[2014] FWC 1092
•14 FEBRUARY 2014
| [2014] FWC 1092 [Note: An appeal pursuant to s.604 (C2014/3308) was lodged against this decision - refer to Full Bench decision dated 19 August 2014 [[2014] FWCFB 4580] for result of appeal.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Allan Agustin
v
Monash Health
(U2013/11916)
| COMMISSIONER JOHNS | BRISBANE, 14 FEBRUARY 2014 |
Application for Relief of Unfair Dismissal - Summary Dismissal - Serious Misconduct - Standard of Proof - Reinstatement.
Introduction
[1] This decision arises in the context of Allan Agustin (Applicant) having been summarily dismissed for allegedly making vile and deeply offensive comments about his supervisor in the staff cafeteria. In making its decision to terminate the Applicant’s employment Monash Health (Employer/Respondent) substantially relied upon the report made by a non-employee about what she heard and saw on 29 May 2013.
[2] The Applicant strongly denies making the offensive statements and wants to clear his name. Consequently, on 25 July 2013 Applicant made an application pursuant to section 394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of his dismissal by the Respondent. He seeks an order that he be reinstated.
[3] On 22 August 2013 the Employer filed a response to the unfair dismissal application. It maintained the correctness of the decision it made to terminate the Applicant’s employment.
[4] On 30 August 2013 the unfair dismissal application was listed for conciliation before a Fair Work Commission (Commission) Conciliator, but remained unresolved at the end of the conciliation.
[5] Consequently the matter was listed for hearing.
Permission to be represented
[6] Both the Applicant and Respondent sought permission to be represented by counsel. Having regard to the operation of section 596 of the FW Act and principles enunciated in Warrell v FWC 1 the Commission, as presently constituted, was satisfied that, having regard to the complexity of the matter, it would enable the matter to be dealt with more efficiently if permission was granted to be represented to both parties.
The hearing
[7] At the hearing the Applicant was represented by Cassie Serpell of counsel. On behalf of the Applicant Ms Serpell called 3 witnesses as follows:
● Allan Agustin - the Applicant;
● Thomas D’Souza - employee at Respondent; and
● Robin Rainsford - employee at Respondent.
[8] At the hearing the Respondent was represented by Nicholas Harrington of counsel. On behalf of the Respondent Mr Harrington called 4 witnesses as follows:
● Ms Dolores Bannon - General Services Co-ordinator;
● Mr Desmond Parsons - Security guard;
● Mr Tony Butler - Human Resources Business Partner; and
● Ms Stephanie Houston - Human Resources Business Partner.
[9] At the initiative of the Commission, as presently constituted, on 2 December 2013 the Commission issued an Order to Attend and give evidence to the non-employee who made the report about the events of 29 May 2013, Janet Pike (nee Campbell-Wright). For the purposes of examination-in-chief Ms Campbell-Wright 2 was treated as a witness for the Respondent.
Background
[10] The following factual matters are common ground or uncontested as between the parties:
a) The Applicant commenced employment with the Respondent on 11 July 2003; 3
b) The Applicant was employed as a Porter (now referred to as Patient Services Assistant (PSA)); 4
c) At the time of his dismissal the Applicant reported to Dolores Bannon; 5
d) Up until the time of his dismissal the Applicant had never previously received a warning in relation to his performance or any conduct issues; 6
e) On 29 May 2013 at about 5.00 pm the Applicant was in the staff cafeteria; 7
f) On 30 May 2013 Ms Campbell-Wright made a report to one of the Respondent’s security guards about events she overheard in the staff cafeteria. 8 Ms Campbell-Wright later submitted an incident report in relation to the what she says she overheard;9
g) On 30 May 2013 one of the Respondent’s Human Resources Business Partners, Tony Butler, was directed to undertake an investigation; 10
h) At approximately 12.30 pm on 31 May 2013, 11 the Applicant was suspended on full pay while an investigation was undertaken into whether,
... on 29 May 2013 in the staff cafeteria ... [the Applicant made] threats of violence against a female supervisor. 12
i) On 7 June 2013 the Applicant was interviewed in relation to the events of 29 May 2013; 13
j) At all times (including before the Commission) the Applicant has denied the allegations; 14
k) On 27 June 2013 Mr Butler wrote to the Applicant to advise him that the allegation against him had been substantiated and to invite him to a further meeting to discuss the findings and outcomes; 15
l) On 3 July 2013 a further meeting occurred with the Applicant; 16
m) On 4 July 2013 the Applicant’s employment was terminated. The stated grounds for termination were,
“A finding from a recent investigation that found that the allegations against you were substantiated. The allegations were detailed in a letter sent to you on 31 May 2013.” 17
[11] In its submissions to the Commission the Respondent further clarified the reasons for dismissal as,
...the Applicant having engaged in highly offensive conduct in a public place and in a way that attracted the attention of [a] non-employee. The Statement was deeply offensive, evocative of violent imagery, menacing and entirely destructive of the relationship between the Applicant and his supervisor. 18
Secondly, when interviewed by the Respondent about the Statement and his conduct on 29 May 2013, the Applicant lied about his conduct. 19
[12] It necessarily follows that, if the Applicant did not make the offensive statements, he did not lie to his employer during the course of the investigation (when he made denials). However, it does not follow that, if the Applicant said what he is alleged to have said, he lied about it to his employer during the course of the investigation. This is because the words he is alleged to have said were never put to him during the investigation. 20 This is conceded by the Respondent.21 To the extent that the Applicant made denials during the investigation he was not lying to his employer. Consequently, in either case, the question of whether the Applicant lied to his employer must be resolved in his favour. He did not lie and that cannot found a valid reason for the termination of his employment.
[13] Therefore, the substantive issue in dispute is whether, on 29 May 2013 the Applicant uttered the offensive statements particularised by the Respondent as follows:
● “I’m going to her house, I’m going to fuck her, I’m going to fuck her in the arse” 22
Protection from Unfair Dismissal
[14] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal. That the Applicant was protected from unfair dismissal at the time of the dismissal was common ground between the parties. 23
[15] Consequently, it is necessary to consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the Act.
Was the dismissal unfair?
[16] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Was the Applicant dismissed?
[17] It is common ground between the parties that the Respondent, at its initiative, dismissed the Applicant from his employment on 4 July 2013.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[18] The Respondent is not a small business.
Was the dismissal a genuine redundancy?
[19] The Respondent did not terminated the Applicant’s employment by reason of a case of genuine redundancy.
Harsh, unjust or unreasonable
[20] Having been satisfied of each of s.385(a),(c)-(d) of the Act, the Commission must consider whether it is satisfied the dismissal was harsh, unjust or unreasonable. The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:
“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.”
[21] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:
.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.
[22] The Commission is under a duty to consider each of these criteria in reaching its conclusion. 24
[23] The Applicant submits the dismissal was harsh, unjust or unreasonable because there was no valid reason for the dismissal.
[24] The Respondent submits the dismissal was not harsh, unjust or unreasonable because:
● there was a valid reason for the dismissal associated with,
...the Applicant having engaged in highly offensive conduct in a public place and in a way that attracted the attention of [a] non-employee. The Statement was deeply offensive, evocative of violent imagery, menacing and entirely destructive of the relationship between the Applicant and his supervisor. 25
Secondly, when interviewed by the Respondent about the Statement and his conduct on 29 May 2013, the Applicant lied about his conduct. 26
[25] Further, the Respondent says, the Applicant:
● was notified of the reason;
● was provided with an opportunity to respond; and
● was permitted a support person. 27
[26] The Commission will now consider each of the criteria at s.387 of the Act separately.
Valid reason - s.387(a)
[27] The Respondent must have a valid reason for the dismissal of the Applicant. The reasons should be “sound, defensible and well founded” 28 and should not be “capricious, fanciful, spiteful or prejudiced.”29
[28] As stated above the Respondent says that it terminated the Applicant’s employment because he made the offensive statements and later lied about it.
The task of the Commission in determining valid reason
[29] To determine a valid reason relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the Applicant actually occurred. 30
[30] The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee is guilty of the conduct. 31 The Commission must make a finding as to whether the conduct occurred based on the evidence before it.32
[31] Counsel for the Applicant submitted that:
a) a termination may be unjust, because, on the evidence the employee was not guilty of the misconduct on which the employer acted; 33
b) where termination of employment is based on the conduct of the employee, the tribunal must make a finding as to whether or not the conduct occurred; 34
c) the alleged comments are extremely serious and have had serious consequences for [the Applicant]. The level of certainty in determining whether or not those comments were made by [the Applicant] needs to be accordingly extremely high; 35
d) the Respondent bears the onus of proving the valid reason; 36
e) the correct approach to the standard of proof in a civil proceeding ... is that provided for by section 140 of the Evidence Act (i.e. the balance of probabilities); 37
f) the Commission must be satisfied that it was more probable than not that the facts necessary to establish the case of the party bearing the onus of proof exist. If the party’s case and the opponent’s case are “exactly balanced”, the test will not be satisfied; 38
g) if in a particular case it is not possible for the court to reach a conclusion either way then the court is not bound to do so but may take a third course of finding that the party on whom the burden of proof lies as failed to discharge it; 39
h) the test in Briginshaw v Briginshaw 40 is to be applied, so too the statements of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd41, that,
“one recognises that ‘the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved”; 42 and
i) the ‘graver’ the consequences at the time of the trial, the stronger the evidence required to conclude the allegations established on the balance of probabilities should be. 43
[32] Counsel for the Respondent submitted that:
a) the Commission must apply the civil standard, namely the balance of probabilities; 44
b) the FW Act is silent on the question of whether the Respondent bears the onus of proof; 45
c) the Commission must determine whether [the conduct] occurred. That is a fact finding mission requiring a determination on the record; 46
d) the standard of proof attaches to the issue of whether there was a valid reason. It is not for the Respondent to satisfy the Commission; 47
e) Briginshaw v Briginshaw 48 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd49 are the relevant authorities;50
f) to not determine [if the Applicant made the offensive statements] is to fall into error. It would be a constructive failure to exercise jurisidiction; 51
g) there can be no ‘open finding’; 52 and
h) the Commission must “decide for itself, on the evidence adduced, whether there was a valid reason.” 53
[33] What is clear from the authorities and the submissions made by the parties is that it is not the Respondent’s investigation that is to be assessed by the Commission in determining if there was a valid reason for the termination. The question is not whether the conclusion reached by the Respondent was a reasonable one. 54 If that were the case, then the “imperfect” nature of the Respondent’s investigation (the Respondent’s counsel appropriately conceded the investigation “lacked a forensic rigour”55), would likely have rendered invalid the reason for termination. Rather, the Commission must make its own determination about whether the Applicant made the offensive statements.
[34] The Commission adopts and applies the tests enunciated in Briginshaw v Briginshaw and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.
[35] Therefore, in order to find that there was a valid reason for the termination of the Applicant’s employment, the Commission must be satisfied, on the balance of probabilities, that the Applicant made the offensive statements. In so deciding the Commission is entitled to take into account matters including the gravity of the matters alleged and the gravity of the consequences.
[36] In this proceeding the gravity of the matter is serious. The Respondent alleges that the Applicant:
a) “engaged in highly offensive conduct in a public place”; and
b) made statements that were “deeply offensive, evocative of violent imagery, menacing and entirely destructive of the relationship between the Applicant and his supervisor.” 56
[37] The gravity of the consequences (of finding that the Applicant made the offensive statements) is also serious. If the Applicant made the offensive statements it would be a valid reason for termination. His reputation and livelihood are at stake.
[38] That does not mean that there is a higher standard of proof required in this matter. However, the gravity of the matters means that the Commission should not be satisfied (on the balance of probabilities) that the Applicant said made the offensive statements until it has exercised the caution appropriate to the issue at hand by a careful examination of the whole of the evidence; which it now does.
The evidence concerning the events of 29 May 2013
[39] The Commission has had regard to all of the evidence in the proceeding. However, in this decision, the Commission does not seek to set out in detail all of the evidence presented in the proceedings, rather it is set out in brief terms.
[40] Because it was the report made by Ms Campbell-Wright which led to the termination of the Applicant’s employment it is useful to start with her evidence which was that:
● She has worked for Monash University for approximately a year and a half as an SPF Animal Technician; 57
● In May 2013 she was working on secondment at Monash Medical Centre Clayton; 58
● On 29 May 2013, shortly after 5pm 59 she entered the cafeteria through the door not leading to the garden, walked to about where the sink was, then walked down the gap between the tables and sat down at the third table;60
● In respect of Exhibit A4 and A5 (both photos of the cafeteria) Ms Campbell-Wright said she was sitting in the chair with a bag hanging on it; 61
I heard the door open quite quickly, sorry, and sort of roughly, it's a really heavy door so that was quite unusual. So I glanced around and saw the person that I have identified. The person who walked in immediately began speaking louder, shouting I guess, speaking louder than one normally would and saying things that were pretty dramatic, so I looked around, observed the person and then looked immediately back to what I was doing to try not to draw attention to myself and involve myself in the situation.
...
The person had hair that was dark and almost shoulder length, thick and quite greasy. He had a roundish face, a sort of caramel coloured tanned skin. He was heavy, quite stocky, about 5'7". He has large stocky muscular legs with a tattoo on one leg that was - it had a big yellow wheel in it and it was quite colourful. He was wearing a navy coloured shirt, polo shirt, navy coloured with pale blue piping on it and a university ID on a lanyard and shorts that went to about the knee that were quite baggy and in a similar sort of colour to his top. 62
● The man spoke with an accent which “sounded a little bit Spanish”. 63
● Her recollection of what the man said:
The person spoke for some time, probably about six or seven minutes, so I can't remember every single thing he said but as he walked in he used exclamations of anger, he used the word "fuck" and "fucking" repeatedly just as adjectives, not in sentences as such. He then referred to a female. He said that he was going to go to her house and fuck her, he used the word "rape" in a sentence in context. He said, "Someone should rape her, we should rape her." Another individual joined in the conversation and said, "Yes, I'll come with you, we'll double her." They specifically said that it was anal sex that they were talking about, they used the word "arse" to describe that. They also said something about the pain that she should feel the pain, I can't remember the exact words that they used but the other individual didn't join in very much, he said that and afterwards just sort of said yeah, and yeah all right, and let's do that. He didn't really get descriptive, whereas the man I've described got quite descriptive, he spoke very loudly and to be honest really scared me while I was sitting there, mostly trying to look away. After this all transpired I glanced over repeatedly to try and remember as many details as possible of the individual and his clothes so that I could identify him to security. 64
● In respect of her position in the cafeteria when the alleged comments were made she stated:
I was facing away from him and I looked around toward him repeatedly in order to identify him and make sure that he wasn't coming closer to me and that I didn't have to take any sort of evasive action to get out of the situation, but I was for a lot of that period of time facing away from him, but I specifically looked around, because the situation was threatening I looked around many times to identify the person and to try and keep myself safe and protected. 65
● She says the Applicant’s position was near the door and sink; 66
● Whilst in the cafeteria on 29 May 2013, she took notes on her iPhone (Exhibit “R8”) of the appearance of the man who made the offensive comments. Those notes record:
“5 7
Caramel skin, Asian
Black hair, nearly shoulder length, greasy, healthy, layered.
Clear skin
Overweight but no “beer belly”, a bit pudgy all over
Loud voice, strong accent, not sure what
Very confident
Colourful tattoo on left calf
Accent possibly south American
Speaks another language, possibly Spanish
Polo shirt, navy, sky blue piping
Hospital ID
Glasses - black, squarish
Thin moustache, chinstrap
Calls people “man”
Talking with people in cleaners uniforms
Nose wide
Repeatedly used the word “fucking” as an adjective
Repeatedly used the word ‘rape’
Specifically said he was going to go to her house
Specifically said ‘a woman shouldn’t talk to our race in that way’ implied he had been embarrassed by her in front of other males. Did not name race.
Another man said he would go with him to the house and ‘double her’”
● After she left the cafeteria she sent a text message to her manager stating:
“Really sorry to bother you with this after hours, but there was a situation at the hospital and I’m not entirely sure what to do about it. After leaving the animal house I sat in the general staff tea room for a few minutes, just to have a coffee. There was a group of staff there, two of whom were talking very loudly about planning to gang rape a female staff member, in very colourful language. One of them was making expressive physical gestures. Although I don’t think their plans were genuine, they were, at the very least, being threatening. Obviously I left quietly and was not personally affected, however I assume I should report the incident.” 67
● She thought the man may have just been “letting off steam”; 68
● On 30 May 2013, Ms Campbell-Wright made a call to the Respondent’s security department to report what she had observed and heard. Prior to attending at the security department she completed an “Offender Description Form” [Exhibit “R5”]. She took the form to security where a photocopy was taken. 69
● Exhibit “R5” records the offender as follows:
| Approximate age | Late 20’s |
| Height | Approx 170cm |
| Complexion | Dark, Asian |
| Accent | Strong, Slang, could not place, Mexican? |
| Posture | Slouchy |
| Walk | Springy |
| Hair | Black, thick, long |
| Eyes | Dark |
| Ears | Large round |
| Nose | Mid size, wide and flat |
| Sex | Male |
| Ethnic Origin | Asian, deep complexion |
| Weight | Overweight not obese |
| Build | Stout |
| Voice | Loud, slangy, speaks Spanish |
| Spectacles | Black, bulging square |
| Moustache-Beard | Short, untidy chinstrap facial hair, thin moustache |
| Marks | Colourful tattoo on outer left calf, orange yellow colour |
| Clothing | Navy work clothes, T-Shirt ◊ polo with light blue trim, no badges, hospital ID, jogging shoes and matching long shorts |
| Method of operation | Shouting, swearing, waving arms |
● On Exhibit “R5” under the heading “Brief description of incident” she wrote,
A man walked into the downstairs B block tea room, he loudly addressed a group at a table, he and another man were yelling about an Irish female supervisor. They openly stated they were going to rape her together, describing some details of the pain and injury they wished to cause. They also said that due to their race, they had a right to do this as no member of their race should be publicly disrespected.
● On 5 June 2013 Ms Campbell-Wright was interviewed by Tony Butler and Stephanie from the Respondent’s HR department. In evidence was a Record of Interview [Exhibit “R6”].
● Throughout the Record of Interview there are references “Allan”. However, it was conceded by Ms Campbell-Wright that she did not use any names. 70 It is apparent from the evidence of the Respondent’s investigators that they had already concluded that the person in question was the Applicant.71
● The Record of Interview 72 records the following:
| 29 May 2013 | Tea room |
| Other person - man speaking - short dark hair, maybe | |
| 6 people (in addition) to Allan | Looked uncomfortable |
| ◊ all saying “Fu?! Southern Health” | |
| Allan | |
| Other older man | |
| Also stated they would get the union involved. |
● At the start of the interview Ms Campbell-Wright was shown two pictures, the photo ID of Robin Rainsford and the photo ID of the Applicant. She identified the Applicant as the man making the offensive comments; 74
● She was only provided with one photograph in respect of the person who she says made the most offensive comments. 75 She was only shown one photograph for the other man. No other attempts were made to identify the second man.76 She accepted that the person in the second photograph bore no resemblance to the person she described as the second person;77
● In her evidence before the Commission, Ms Campbell-Wright said, in respect of the Record of Interview:
○ The specifics are not recorded; 78
○ The first notation on the Record of Interview is “Allan”; 79
○ Even before she gave her description of the person, the word “Allan” was noted; 80 and
○ At the beginning of the interview she was shown two photographs. She identified the Applicant as the man who made the offensive comments. 81
[41] In relation to the Applicant’s tattoo during the course of the hearing Ms Campbell-Wright was shown Exhibit “A2”. On seeing the picture she identified it as the tattoo of the man who made the offensive comments. 82 However, Ms Campbell-Wright advised that she was shown Exhibit “A2” about 10 minutes before giving evidence. Counsel for the Respondent admitted showing it to her.83 Accordingly, the in court positive identification of the tattoo that Ms Campbell-Wright made from Exhibit “A2” is of little probative value.
[42] It is also appropriate to record that during her evidence before the Commission Ms Campbell-Wright identified the Applicant in the court room as the man who made the offensive comments. 84 However, this was hardly a Perry Mason moment; the Applicant was the only Asian person in the court room. This positive identification in the court room was of no probative value.
[43] It was the evidence of Mr Agustin that:
● He strenuously and completely denies the allegations; 85
● On 29 May 2013, he went to the cafeteria for his 5.00pm break. He did his usual thing warming up his meal and have his meal with other colleagues including Robin Rainsford. 86 He recalls Thomas D’Souza, Lalit [Kumar], Gerard [Limack] and a Chinese lady being in the cafeteria that day;87
● In respect of Exhibit “A4” he identified himself as sitting near the column with the telephone on it, his back facing the telephone 88 talking with Robin Rainsford89 who was sitting opposite him.90 He was not shouting, swearing, or waving his arms;91
● On 31 May 2013 he attended a meeting with Tony Butler and Alfred Matthews where he was told he was accused of making threats of violence against his manager Dolores Bannon. He was told he was on suspension with full pay 92 and directed to leave the building immediately;93
● When he heard the allegations that were made against him he “nearly cried because it’s not me. I’m not that person;” 94
● He comes from a family who doesn’t even swear at home; 95
● In relation to his appearance he conceded he has the following characteristics:
○ Olive/brown skin; 96
○ Height about 170 cms; 97
○ Asian appearance; 98
○ Black hair; 99
○ Brown eyes; 100
○ Wears spectacles; 101 and
○ Has a colourful tattoo on his outer left calf. 102
● On 29 May 2013 he was wearing scrubs, 103 not shorts.104 He had a thin moustache and facial hair on the chin.105 His hospital ID was pinned on his shirt.106 He was wearing jogging shoes.107 He was not wearing a polo shirt.108
● He has “had a problematic relationship with [his supervisor], Ms Bannon, since about 2009.” This is common ground. 109
[44] It was the evidence of Mr D’Souza (an employee of the Respondent) that:
● He works for the Respondent as a cleaner; 110
● He has known the Applicant for approximately two and a half years; 111
● He saw the Applicant on a daily basis during his tea and/or dinner break; 112
● During tea and dinner breaks the Applicant would occasionally be with Robin [Rainsford]; 113
● He would usually sit near the glass windows, diagonally opposite where the Applicant and other porters used to sit in the tea room; 114
● Approximately 15-20 people would ordinarily be in the cafeteria around 5 pm on 29 May 2013; 115
● Normally the Applicant would be on his Ipad or doing his own work; 116
● He has never heard the Applicant swear. 117 When he was told about the allegation against the Applicant, he was ‘taken by surprise and disbelief’;118 and
● He has never known the Applicant to be aggressive. 119
[45] It was the evidence of Mr Rainsford (an employee of the Respondent) that:
● He has worked for the Respondent since 2000. 120 He is currently employed as “ward support” (previously referred to as porters or nursing attendants);121
● He has known the Applicant for “a good ten years at least” 122 and they are “good friends”;123
● He describes the Applicant as “intelligent, very clearly spoken, polite person” 124 who is “very good at his work”;125
● His recollection of 29 May 2013 is that “nothing out of the ordinary was happening that day”. 126 He said that Thomas [D’Souza], Lalit, Gerard, an environmental person, himself and the Applicant were in the cafeteria on 29 May 2013. His evidence was that he and the Applicant were sitting near the door of the cafeteria;127
● He was 100% certain that he was with the Applicant in the cafeteria on 29 May 2013; 128
● He has never heard the Applicant speak about rape or assault in the time that he has known him; 129
● The Applicant’s relationship with his manager Ms Bannon was problematic; 130
● The Applicant, on 29 May 2013, was wearing the work uniform polo top, his hospital ID, runners and long shorts. 131 However later stated he had no actual recollection of what he was wearing on that day. He has a standard uniform.132
● He has never heard the Applicant swear; 133
● He denies that the Applicant made the offensive statements 134 and denies that he was the “other man” who is alleged to have said “Yes, she’s shit. Yes, Yes, let’s do it, we’ll double her, double her in the ass.”135 This allegation had never before been put to him; and
● Described himself as white Anglo-Saxon. 136
[46] Although he was not in the cafeteria on 29 May 2013 and could not give evidence about whether the Applicant made the offensive statements, it is useful at this stage (as will become apparent later) to summarise the evidence of the lead investigator Mr Butler. His evidence was that:
● In May and June 2013 he was employed by Monash Health as HR Business Partner. 137 He has significant years of expertise in HR;138
● On 30 May 2013 he was directed to undertake an investigation in respect of an incident which was said to have occurred on 29 May 2013. 139 Alfred Matthews (Support Services Manager) contacted him and told him of the allegation. He then contacted Ian Haycock (Director Human Resources Business Partnerships) who directed him to undertake an investigation;140
● When Alfred Matthews contacted him Mr Matthews said that “it sound[s] like it’s Allan Agustin because of the way he was described and so based on the description we believe it was Allan Agustin.” 141
● He undertook the investigation with Stephanie Houston;
● On 5 June 2013, he and Ms Houston interviewed Ms Campbell-Wright. 142 Ms Houston acted as scribe;143
● During the interview Ms Campbell-Wright was shown a picture of the Applicant and a picture of Robin Rainsford. She identified the Applicant as the man who made the offensive comments; 144
● It would have been easy for him to collect a group of 10-20 photographs of different employees; 145
● On 7 June 2013, he and Ms Houston interviewed the Applicant; 146
● On 17 June 2013, he and Ms Houston interviewed:
○ Gerard Limock, whose evidence (Exhibit “R10”) included that,
n Allan always talking
n He sit(s) away on a different table
n Allan was speaking loudly
n On the day in question had break around 5 with Lalit and Thomas
n Allan was speaking loudly not sure what about
○ Thomas D’Souza whose evidence (Exhibit “R11”) included that,
n Normally take a breach at 5pm with Lalit and Gerard
n - talk about next work requirements
n Don’t remember who Allan was sitting with on this day
n Allan normally talks about what he does in Ward
n Hasn’t seen him raise his voice personally
n Can’t believe the allegations, surprised and shocked
n Doesn’t think anyone could say such a thing especially Allan.
○ Lalit Kumar whose evidence (Exhibit “R12”) included that,
n There on the day, had break at 5pm
n Sat down at one table. Thomas, Gerard
n On the next table was Allan and Robin
n (Lalit) was talking about work
n Didn’t hear he (Allan) was loud. Allan is a big mouth. Talks about union etc
n Porters don’t like us cleaners.
n They never talked to cleaners
n Allan talked loudly on that day. He was standing up talking. They were talking not eating. Allan was standing. Robin was sitting.
● On 24 June 2013, he and Ms Houston interviewed Robin Rainsford whose evidence (Exhibit “R13”) included that,
n He always has breaks with Allan in cafeteria at 5pm. Often environmental people there. Robin has tea with Allan.
n Robin doesn’t recall conversation on day.
n In response to the question “did you hear Allan swear, use threatening nature”, “no, can’t recall”
n Nothing specific was said about an Irish supervisor
n Nothing out of the ordinary was said
n They usually talk about work
Resolving the conflict in the evidence
[47] There is a stark conflict between the evidence of Ms Campbell-Wright and the evidence of the Applicant. Ms Campbell-Wright says the Applicant made the offensive comments. He denies having done so. In relation to this conflict counsel for the:
a) Applicant submitted that the Commission should find that Ms Campbell-Wright is “wrong in her identification and that she was ... mistaken”; 147
b) Respondent submitted that the Commission should find that the Applicant lied about his conduct (to the Respondent and to the Commission under oath). 148
[48] Ms Campbell-Wright presented as a witness of truth and credibility. Further, she was able to rely upon contemporaneous notes taken on her iPhone (Exhibit “R8”) and the written report she made the day after (Exhibit “R5”).
[49] Consequently, there is no doubt that Ms Campbell-Wright saw someone who looked very much like the Applicant in the cafeteria on 29 May 2013. There is no doubt that she heard the offensive statements. There is no doubt that Ms Campbell-Wright honestly and genuinely believes that it was the Applicant who made the offensive statements. However, it does not automatically follow that the offensive statements were said by the Applicant. As counsel for the Applicant correctly submitted “even if a witness is honest they can still be mistaken.” 149 It is open to the Commission to find that Ms Campbell-Wright is mistaken. Counsel for the Respondent accepted the Commission “could make that finding,”150 although he submitted it should not.
[50] When considered together the evidence of Ms Campbell-Wright (although a witness of truth) does not lead to the conclusion that she is not mistaken. As to the taking of the notes in Exhibit “R8”, Ms Campbell-Wright says she had her back to the conversation, that she was facing away from the speaker, 151 but that she:
a) “glanced around”;
b) “looked around observed the person and then looked back immediately”; 152
c) “after this all transpired [i.e. the conversation she overheard] I glanced over repeatedly...” 153 (emphasis added).
[51] Ms Campbell-Wright did not have a direct view of the conversation. What is apparent from this evidence is that there was a temporal disconnect between what Ms Campbell-Wright heard and who she observed. It was not the evidence of Ms Campbell-Wright that she saw the Applicant say “I’m going to her house, I’m going to fuck her, I’m going to fuck her in the arse.” The Commission accepts that Ms Campbell-Wright:
a) heard those words; and
b) can correctly identify the someone who looked like the Applicant in the cafeteria,
but that does not establish that it was the Applicant who said the offensive words. There is no direct evidence that he did.
[52] Secondly, having regard to the fact that all the evidence is that the Applicant was talking to Mr Rainsford in the cafeteria on 29 May 2013 and Ms Campbell-Wright’s equally assertive evidence that the second person was not Mr Rainsford, 154 at least in one important regard, Ms Campbell-Wright must be mistaken about either:
a) the identity of the person to whom the Applicant was talking (because Mr Rainsford is white, not caramel. He is not much older. He does not have dark hair); or,
if Ms Campbell-Wright is correct in her identification of the second person,
b) the identity of the person who made the offensive statements (because the Applicant was, on all accounts, talking to Mr Rainsford and not the person Ms Campbell-Wright described as the second person).
[53] It necessarily follows that Ms Campbell-Wright is mistaken as to the identity of someone; either the speaker of the offensive comments or the second person. This is sufficient to attend her evidence (about who said the offensive comments) with some doubt. This doubt is compounded by the fact that, although most of the features described by Ms Campbell-Wright match the physical features of the Applicant, Ms Campbell-Wright described the maker of the offending statements as “late 20s”. The Applicant was 48 at the relevant time. The Commission observed that the Applicant looked his age.
[54] There is something that might explain the certainty with which Ms Campbell-Wright asserts (genuinely) that the Applicant made the offensive statements. That is that, from the first moment that Ms Campbell-Wright participated in the Respondent’s investigation, it was suggested to her that the person who made the offensive comments was Allan Agustin. When she attended the interview with Mr Butler and Ms Houston she was shown only one photo of an Asian person, that of the Applicant.
[55] As Odgers notes “there has been considerable research into the problems with visual identification.” 155 Identification evidence obtained in this manner should properly be treated with caution.156 There is a significant risk of suggestability.
[56] In the present matter when Mr Butler commenced his investigation he was told by Alfred Matthews (the Support Services Manager) that “it sounds like Allan”. 157 He then conducted his investigation not with the desire to establish who said the offensive comments, but to establish that it was the Applicant who did so. For example, in the record of the interview with Ms Campbell-Wright the name “Allan” is repeatedly recorded. Ms Campbell-Wright’s evidence is she never used that name. The investigation always proceeded on the basis that the Applicant was the person who made the offensive comments. There was no investigation into who else may have fitted the description given by Ms Campbell-Wright and no evidence was adduced before the Commission to establish that the Applicant is the only person employed by the Respondent who fits the description of physical attributes described by Ms Campbell-Wright.
[57] In showing Ms Campbell-Wright one photo of an Asian person (i.e. the staff ID photo of the Applicant) there was either an intention to influence Ms Campbell-Wright (on behalf of Mr Butler) or the very high possibility that it would (and did) prejudicially influence her evidence. For these reasons the evidence of Ms Campbell-Wright’s out of court identification is of little to negligible probative value. As stated above, Ms Campbell-Wright’s in court identification of the Applicant (being the only Asian person in the room) is of no probative value.
[58] Counsel for the Respondent conceded that “corroboration of any evidence, properly admitted, is a relevant consideration”. 158 No-one corroborates Ms Campbell-Wright’s evidence. The closest any of the evidence comes to corroboration is contained in the record of interviews of Mr Limack and Mr Kumar. Both reported the Applicant speaking loudly. That is not corroborative of what it is alleged he said.
[59] Mr Rainsford’s evidence is relevant in this respect. As counsel for the Respondent submitted “there is no presumption in law that a friend simply won’t or can’t tell the truth” 159 and in this regard Mr Rainsford also presented as a witness of truth and credibility. His evidence was corroborative of the Applicant’s evidence. On hearing what the alleged words were for the first time during the hearing (they having not been put to him in the course of the Respondent’s investigation) Mr Rainsford appeared genuinely shocked and horrified. His manner was consistent with someone who had heard the vile words for the first time.
[60] In this matter the issue of the Applicant’s reliability and credit were squarely put in issue by the Respondent. The Respondent submits that the Applicant “was not a witness of truth on various aspects of his evidence.” 160 The Respondent says “credibility is paramount”.161 For that reason evidence about the Applicant’s character, reputation, conduct or tendency is relevant because those matters are a fact in issue in the proceeding.
[61] The evidence of the Applicant is that he does not swear. 162 The evidence of Mr D’Souza163 and Mr Rainsford164 is consistent with the Applicant’s evidence and support a conclusion that the Applicant does not tend to swear.
[62] Also relevant to the question of tendency is the evidence of the Applicant’s supervisor, Ms Bannon (about who he is alleged to have made the offensive statements). Her evidence was that, while she had a problematic relationship with the Applicant, 165 she had never heard him swear.166
[63] All of this evidence is significant and it rationally affects the assessment of the probability that the Applicant made the offensive statements. When considered together, the evidence of Mr D’Souza, Mr Rainsford and Ms Bannon supports a conclusion that the Applicant did not make the offensive statements or, if he did, that it was very much out of character for him.
[64] The Applicant presented as a credible witness and a witness of truth. The Commission, as presently constituted, observed a witness who was calm, poised, reflective and measured in his demeanour and the content of his testimony.
[65] Counsel for the Respondent properly put to the Applicant that he made the offensive comments. 167 In the face of the Applicant’s denials, counsel for the Respondent submits the Applicant “is not a witness of truth”.168 However, in response to the cross-examination the Applicant maintained his composure and position. His evidence was entirely consistent and inherently plausible with the denials he has always made.
[66] Counsel for the Respondent submitted that the Commission should find that the Applicant lied to the Commission under oath because he has a tendency to lie. In support of this proposition the Respondent points to the fact that the Applicant “maintained the fiction that he was dressed in ‘scrubs’ on 29 May 2013 and therefore, Ms Campbell-Wright could not have seen his tattoo. He consciously lied about this matter”. 169
[67] Having regard to the evidence, it is more probably than not that Ms Campbell-Wright’s account of what the Applicant was wearing is the correct one. There is no other basis for explaining her description of the tattoo. However, there is an alternate finding, to finding that Applicant lied in this regard. It is simply that the Applicant was incorrect in his recollection about what he was wearing on a particular day seven months earlier. Having observed the Applicant in the witness box the Commission prefers the innocent explanation (i.e that the Applicant is mistaken) and so finds.
[68] Counsel for Respondent asserted that the Applicant had a motive to lie and that he “gave evidence through a lens of self-interest and self-promotion.” 170 However, beyond that assertion of bad-motive there was no evidence adduced that diminished the Applicant’s credibility as a witness. There was no evidence that tended to prove that he knowingly made false statements to the Commission. In matters such as this proceeding there must always be some other foundation to regard supposedly self interested evidence with a degree of scepticism. The Commission is satisfied that any such foundation was absent in the present matter.
[69] Having considered all that has been put before the Commission and its assessment of the evidence as a whole (including how all the evidence internally relates to itself), the Commission is satisfied that:
a) for the reasons set out above (paras [50] to [57]), the identification of the Applicant by Ms Campbell-Wright (who was a witness of truth) is attended by doubt and there is a possibility of mistaken identity;
b) Ms Campbell-Wright’s evidence is not corroborated;
c) Ms Campbell-Wright’s evidence was likely prejudiced by the identification process undertaken by the Respondent’s investigators;
d) the Applicant’s version of events (i.e. that he did not make the offensive statements) is corroborated by the evidence of Mr Rainsford (also a witness of truth);
e) the Applicant (also a witness of truth) has a tendency not to swear; and
f) the credibility of the Applicant was not impeached during the hearing.
[70] Consequently, having regard to:
a) the gravity of the matters alleged;
b) the gravity of the consequences for the Applicant; and
c) a careful examination of the evidence,
the Commission is not satisfied that, on the balance of probabilities, it is more probable than not that the Applicant made the offensive statements. The Commission finds the Applicant did not make the offensive statements.
[71] Because, the Commission has found that, having regard to all of the evidence before it, on the balance of probabilities, the Applicant did not make the offensive statements, it necessarily follows that there was no valid reason for the dismissal. Counsel for the Respondent did not contest that the conclusion (that there is no valid reason) flows from the finding that the Applicant did not make the offensive statements. 171
Notification of the valid reason - s.387(b)
[72] It is common ground between the parties that the Applicant was notified of the reason for the termination. As stated above the Commission is not satisfied that the reason was valid.
Opportunity to respond - s.387(c)
[73] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 172
[74] It is common ground between the parties that the Applicant was interviewed during the course of the Respondent’s investigation. However, the offensive statements were never put to him during the course of the investigation. He was never provided with an opportunity to deny what was alleged against him.
[75] The Commission finds the Applicant was not given an opportunity to respond to the reason for the dismissal.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[76] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[77] It is common ground between the parties that at the meeting on 31 May 2013 between the Applicant and Mr Butler, the Applicant requested a support person. 173 The Applicant has stated there was no resistance from Mr Butler for the Applicant to have a support person present.174
[78] The Commission finds the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.
Warnings regarding unsatisfactory performance - s.387(e)
[79] The termination of the Applicant’s employment was unrelated to his performance. The Applicant has an unblemished record of performance. 175 Accordingly, section 387(e) is not relevant in the present matter.
Impact of the size of the Respondent on procedures followed - s.387(f)
[80] The size of the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.
[81] The Respondent is a large employer.
[82] The Commission finds the size of the employer’s enterprise did not impact on the procedures followed in effecting the dismissal. In fact, having regard to its size and human resources function it is surprising that the Respondent’s investigation was attended by such imperfection.
Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[83] The absence of dedicated human resource management or expertise in the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.
[84] The Respondent has a dedicated human resource management function and expertise. Accordingly, this consideration is not relevant in the present matter.
Other relevant matters - s.387(h)
[85] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. The Commission considers the following matters to be relevant to the determination of whether the dismissal of the Applicant was harsh, unjust or unreasonable:
a) the summary dismissal of the Applicant likely had a significant impact on his personal and economic situation; and
b) the Applicant otherwise had an unblemished record.
Conclusion
[86] Having considered each of the matters specified in s.387, the Commission is satisfied the dismissal of the Applicant was harsh, unjust or unreasonable. Accordingly, the Commission find the Applicant’s dismissal was unfair.
Remedy
[87] Section 390 of the Act sets out the circumstances in which the Commission may make an order for reinstatement or compensation:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[88] The Commission has already dealt with the issues at s.390(1)(a)–(b) above. The Commission is satisfied the Applicant was protected from unfair dismissal pursuant to s.382 of the Act and the Applicant was dismissed unfairly. Accordingly, the Commission is required to determine whether to order the reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate, an order for compensation if the Commission is satisfied such an order is appropriate in all the circumstances.
Reinstatement
[89] The Applicant seeks reinstatement. Reinstatement is the primary remedy. As Vice President Lawler observed in DP World Sydney Limited v Stephen Lambley 176 “[t]he language of s.390 makes the position pellucidly clear. The Commission “must” order reinstatement unless reinstatement of the person is inappropriate.”177
[90] Even if the Applicant was not seeking reinstatement, s.390 of the Act requires the Commission first determine whether reinstatement is appropriate before the Commission may consider an order for compensation.
[91] The Applicant submits reinstatement would be appropriate because:
a) the Applicant has successfully worked with his supervisor over many years despite a number of difficulties; and
b) Ms Bannon has no sound basis for concern for her well being in respect of the Applicant as the Applicant did not make the alleged comments. 178
[92] It is relevant to have regard to what Ms Bannon says about the question of reinstatement. In her witness statement (Exhibit “R1”) she opposes it because of “the statements made by [the Applicant]”. 179 She gave further evidence that,
a) On 26 June 2013 she obtained an Intervention Order against the Applicant. She obtained the Order because she was fearful for her safety. 180 The Order was a result purely of the allegations that were made against the Applicant and the finding of the investigation team that the allegations were substantiated;181
b) To the best of her knowledge the Applicant had not received any warnings in his career prior to 29 May 2013; 182
c) She was not in the cafeteria when the comments were said to have been made; 183
d) The exact words alleged to have been said by the Applicant were never put to her; 184 and
e) She would have nothing to fear if the alleged comments were not made by the Applicant. 185
[93] By reason of the findings above (that the Applicant did not make the offensive comments) the reasonable apprehension of fear that Ms Bannon had at the time it was reported to her that the Applicant planned to rape her would now not be reasonable. It is no impediment to reinstatement.
[94] In any case the Respondent conceded 186 that if the Commission found there was no valid reason for the termination of the Applicant’s employment then reinstatement would be appropriate.
[95] In the circumstances the Commission is satisfied that it should order reinstatement. To the extent that the Respondent is concerned about the ongoing relationship between the Applicant and Ms Bannon it is open to the Respondent to appoint the Applicant to another position with terms and conditions no less favourable than those on which he was employed immediately before the dismissal. 187
[96] Having decided reinstatement is not inappropriate in this case, the Commission must decide the terms in which an order may be made.
[97] Section 391 of the Act provides:
“391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
[98] The Commission will now consider each aspect of the order for reinstatement.
[99] As discussed, in the Commission’s consideration of the appropriateness of reinstatement, there is a position vacant in the Respondent’s enterprise with terms and conditions no less favourable than those on which the Applicant was employed immediately prior to the dismissal. Therefore, Commission will make an order requiring the Applicant be reappointed to the position in which he was employed immediately before the dismissal.
Continuity of employment
[100] Section 390(2) of the Act provides discretion to the Commission to determine if it is appropriate for an order maintaining the Applicant’s continuity of employment and continuous service with the Respondent.
[101] In circumstances where the Commission has found that the Applicant did not engage in misconduct the Commission considers it appropriate to make an order maintaining the continuity of the Applicant’s employment and continuous service with the Respondent.
Restoration of lost pay
[102] Section 390(3) of the Act provides the Commission with a discretion to determine if it is appropriate to make an order causing the Respondent to pay the Applicant an amount for the remuneration lost, or likely to be lost, by the Applicant because of the dismissal.
[103] Pursuant to s.391(4) the Commission must take into account:
● any remuneration earned from employment or other work by the Applicant since the dismissal and the making of the order for reinstatement; and
● any remuneration to be earned from employment or other work by the Applicant between the time of the making of the order and the actual reinstatement.
[104] The Commission considers it appropriate to make an order restoring remuneration lost, or reasonably likely to be lost, by the Applicant because of the dismissal less any remuneration earned (including social security payments).
[105] The Applicant is, therefore, requested to provide an update (and details, if necessary) of any income earned since his dismissal, to the Commission and to the Respondent.
[106] The information sought is to be provided by close of business on Wednesday, 19 February 2014. Once this information is to hand, an order will be issued with regard to the Applicant’s continuity of employment and the period of his continuous service with the Respondent together with an amount for the remuneration lost or likely to have been lost.
Conclusion
[107] The Commission is satisfied that the Applicant was protected from unfair dismissal, that the dismissal was unfair and a remedy of reinstatement is appropriate.
[108] An order for the reinstatement will be issued with this decision.
COMMISSIONER JOHNS
Appearances:
C. Serpell of counsel for the Applicant.
N. Harrington of counsel for the Respondent.
Hearing Details:
2013.
2, 3 and 12 December.
Melbourne.
Final Submissions:
12 December 2013.
1 [2013] FCA 291.
2 Because Mrs Pike was Ms Campbell-Wright at the time of the events in question and all of the material refers to her by her maiden name, the Commission uses the name Ms Campbell-Wright in this decision.
3 Exhibit “A1” at [4], Exhibit “R9”, attachment TB3.
4 Exhibit “A1” at [4], Exhibit “R9”, attachment TB3.
5 Exhibit “A1” at [9], PN1385.
6 Exhibit “A1” at [38], PN1418, 476.
7 PN378, Exhibits “R10”, “R11” and “R12”.
8 Exhibit “R2” at [3], PN1876-1878.
9 Exhibit “R5”.
10 Exhibit “R9” at [5].
11 Exhibit “A1” at [30].
12 Exhibit “R9”, attachment TB2.
13 Exhibit “A1” at [33], Exhibit “R9” , para [17] and Record of Interview attached to TB3.
14 Exhibit “A1” at [39], PN377.
15 Exhibit “R9” attachment TB5, PN807-809.
16 Exhibit “R9”, para [21], Exhibit “A1”, para [36].
17 Exhibit “R9”, attachment TB6, Exhibit “A1”, para [37].
18 Respondent’s Outline of Submissions dated 20 November 2013, para [24].
19 Ibid, para [25].
20 PN2712
21 Ibid.
22 Respondent’s Outline of Submissions dated 20 November 2013, [1].
23 Ibid, [11].
24 Sayer v Melsteel[2011] FWAFB 7498.
25 Respondent’s Outline of Submissions dated 20 November 2013, para [24].
26 Ibid, para [25].
27 Ibid, para [27] - [29].
28 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
29 Ibid.
30 Edwards v Guidice (1999) 94 FCR 561 [6] - [7].
31 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].
32 Ibid.
33 Applicant’s Outline of Submissions dated 30 October 2013, [2(c)], citing Australian Meat Holdings Pty Ltd v McLaughlin (1998) 84 IR 1.
34 Ibid [2(d)], citing Edwards v Guidice and Others (2000) 169 ALR 89.
35 Exhibit “A10”, Submissions on Behalf of the Applicant [1].
36 Ibid, citing Jobson v Garrard Strapping Systems Print P6151.
37 Ibid, citing Qantas Airways Ltd v Gama [2008] FCAFC 69, [110] and [139].
38 Ibid, citing Carney v Newton [2006] TASSC 4 at [52] and [61].
39 Ibid , citing Kuligowski v Metrobus (2004) 220 CLR 363.
40 (1938) 60 CLR 336.
41 (1992) 67 ALR 170.
42 Exhibit “A10”.
43 Ibid.
44 Exhibit “R15”, [5].
45 Ibid, [8].
46 Ibid, [9], citing Qantas Airways Limited v Joseph Seno [PR904809] (1 June 2001) at [30].
47 Ibid, [11].
48 (1938) 60 CLR 336.
49 (1992) 67 ALR 170.
50 Exhibit “R15”, [11].
51 Ibid, [15].
52 Ibid, [17].
53 Ibid, [34].
54 Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, 206 - 206.
55 Exhibit “R15”, [33].
56 Respondent’s Outline of Submissions dated 20 November 2013, para [24].
57 PN1804, 1810.
58 PN1929.
59 PN1862.
60 PN1832.
61 PN1842.
62 PN1845-1846.
63 PN1851.
64 PN1852.
65 PN1854.
66 PN1856.
67 Exhibit “R7”.
68 PN1880.
69 PN1885, 1894.
70 PN2068.
71 PN2205.
72 Exhibit “R6”.
73 This is a reference to Ms Campbell-Wright having been shown a picture of Mr Rainsford.
74 PN1907-1913.
75 PN1914.
76 PN2029-2031.
77 PN2073.
78 PN2043.
79 PN2047, Attachment to TB3 of Exhibit “R9”.
80 PN2053.
81 PN2069.
82 PN1850.
83 PN1847-1849.
84 PN1923-1924.
85 Exhibit “A1” at [39].
86 PN380 - 382.
87 PN407.
88 PN401
89 PN429-435.
90 PN404
91 PN463-465.
92 PN346, Exhibit “R9” attachment TB2.
93 PN345.
94 PN377.
95 PN360.
96 PN621-622.
97 PN729.
98 PN624.
99 PN630.
100 PN635.
101 PN645.
102 PN657-670.
103 PN638.
104 PN642.
105 PN651-655.
106 PN682-684.
107 PN686.
108 PN679-681.
109 Ms Bannon gave evidence that her relationship with the Applicant as “problematic” (PN1389). She said the Applicant “always had an argument for not to have to do his role” (PN1390).
110 PN931.
111 PN939.
112 PN940.
113 PN959-962.
114 PN1019.
115 PN1031-1032.
116 PN1033-1035.
117 PN987.
118 PN988.
119 PN991.
120 PN1098.
121 PN1099-1101.
122 PN1104.
123 PN1105.
124 PN1108.
125 PN1109.
126 PN1143.
127 PN1153-1154.
128 PN1173.
129 PN1177.
130 PN1201.
131 PN1224-1236.
132 PN1301.
133 PN1267-1269.
134 PN1271-1272.
135 PN1277-1278.
136 PN1293.
137 PN2125-2126.
138 PN2307.
139 Exhibit “R9” at [5].
140 PN2189.
141 PN2205.
142 Exhibit “R9” at [9].
143 PN2279.
144 PN2377-2380.
145 PN2383.
146 Exhibit “R9” at [17].
147 Exhibit “A10”, para [4]. Counsel for the Applicant resiled from an earlier submission that Ms Campbell-Wright was lying (PN3317-3322).
148 Exhibit “R15”, para [60].
149 Exhibit “A10”, para [16].
150 PN3552.
151 PN1854.
152 PN1845.
153 PN1852.
154 PN1902.
155 Odgers, Uniform Evidence Law (Seventh Edition), 482.
156 In a criminal proceeding it would likely be inadmissible.
157 PN2205.
158 Exhibit R15, para [35].
159 Exhibit R15, para [44].
160 Exhibit R15, para [42].
161 Exhibit “R16”, para [12].
162 PN727.
163 PN987.
164 PN1267-1269.
165 PN1389.
166 PN1433.
167 PN725.
168 PN3542.
169 Exhibit “R16”, para [13].
170 Exhibit “R15”, para [38].
171 PN3554.
172 RMIT v Asher (2010) 194 IR 1, 14-15.
173 Exhibit “A1” , para [30].
174 PN342-344.
175 PN476, 1418-1421.
176 [2013] FWCFB 9230
177 Ibid [138].
178 Exhibit “A10”, para D.2.
179 Exhibit “R1” at [4].
180 Exhibit “R1” at [3], PN1479.
181 PN1478.
182 PN1418.
183 PN1482.
184 PN1507-1510.
185 PN1488.
186 PN3560
187 Fair Work Act s.391(1)(b).
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