Allen v Allergan Australia Pty Ltd

[2019] FCCA 871

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALLEN v ALLERGAN AUSTRALIA PTY LTD [2019] FCCA 871

Catchwords:
INDUSTRIAL LAW – General protections – whether applicant’s employment terminated because the applicant exercised workplace right – applicant terminated for a reason other than because he exercised a workplace right – application dismissed.

Legislation:

Fair Work Act 2009, ss.340, 341(1)(c)(ii), 342(1), 360, 361(1), 739

Cases cited:

Australian Building and Construction Commissioner v Hall [2017] FCA 274

Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Briginshaw v Briginshaw [1938] HCA 34
Childs v Metropolitan Transport Trust (1981) 29 AILR 24
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Fair Work Ombudsman v A to Z Catering Solution Pty Limited & Anor (No.2) [2018] FCCA 2299
Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721
Jones v Dunkel (1959) 101 CLR 298
Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53
Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271

Applicant: KEVIN ALLEN

Respondent: ALLERGAN AUSTRALIA PTY LTD
(ACN 000 612 831)

File Number: SYG 278 of 2018

Judgment of: Judge Manousaridis

Hearing dates: 3 September 2018 and 10 September 2018

Date of Last Submission: 10 September 2018

Delivered at: Sydney

Delivered on: 5 April 2019

REPRESENTATION

Counsel for the Applicant: Ms A Power

Solicitors for the Applicant: Lorne Havenstein Lawyers

Counsel for the Respondent: Mr D Mahendra

Solicitors for the Respondent: EY

ORDERS

1. The application is dismissed.

2. The parties have liberty to apply within fourteen days in relation to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 278 of 2018

KEVIN ALLEN

Applicant

And

ALLERGAN AUSTRALIA PTY LTD (ACN 000 612 831)

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this proceeding the applicant, Mr Allen, claims the respondent (Allergan) contravened s.340 of the Fair Work Act 2009 (Cth) (FW Act) by dismissing him from his employment on 3 November 2017 because on 6 September 2017 Mr Allen made a complaint in relation to his employment. The complaint related to what Mr Allen claims was bullying and intimidation by his immediate manager, Mr Krishna Sai, in a telephone conversation on 5 September 2017.

2. Allergan accepts that on 6 September 2017 Mr Allen complained to Mr Muhle, who was employed by Allergan as Vice President and Managing Director of Australia and New Zealand, that Mr Allen had been bullied and harassed by Mr Sai and, for that reason, Mr Allen exercised a “workplace right” within the meaning of s.341(1)(c)(ii) of the FW Act. Allergan also accepts that on 3 November 2017 it summarily dismissed Mr Allen from his employment. Allergan denies, however, that it dismissed Mr Allen because he had made a complaint about Mr Sai. Allergan claims it dismissed Mr Allen because in the course of events that were initiated by Allergan’s issuing to Mr Allen a “first and final warning letter” dated 19 September 2017 Mr Allen had given to his lawyer an untruthful account of conversations he had with Mr Muhle and an employee within Allergan’s human resources division which was communicated to Allergan in letters dated 4 and 12 October 2017 from Mr Allen’s lawyer.

3. Mr Allen also claims he was dismissed from his employment because he insisted on his complaint against Mr Sai being investigated. Allergan submits that it is not open to Mr Allen to pursue such a claim because it falls outside the case Mr Allen pleads in his points of claim. Mr Allen, on the other hand, submits such claim falls within the points of claim. Whether or not this claim falls within the points of claim does not matter; and that is because Mr Muhle has given evidence of the actual reasons on which he says he decided to terminate Mr Allen’s employment. If I accept Mr Muhle’s evidence, and if I find that Mr Muhle’s mind alone is to be treated as the mind of Allergan for the purpose of determining the reason or reasons for which Allergan dismissed Mr Allen from his employment, Mr Allen’s case must fail.

Approach

1. The principal question in this proceeding, therefore, is one of fact: did Allergan dismiss Mr Allen from his employment for the reason or reasons Mr Muhle says he decided Allergan should dismiss Mr Allen? I propose to approach my determination of that question as follows. First, I will set out in narrative form the relevant events. These consist of written communications and conversations. Although there is no dispute the events occurred, there is conflicting evidence about some parts of some of the conversations. I will make findings in relation to the disputed conversations and other conversations in the course of my setting out the narrative. Any unqualified statement of fact in that narrative should otherwise be taken to constitute a finding of the fact stated. Second, I will set out in summary form my principal findings of fact. Third, I will set out the elements of a cause of action based on a contravention of s.340 of the FW Act on which Mr Allen relies, and some principles that apply to such cause of action. Finally, I will consider whether Allergan dismissed Mr Allen from his employment for the reasons Mr Muhle says Allergan dismissed Mr Allen from his employment.

Evidence and some findings

1. Allergan carries on a number of pharmaceutical businesses through different business units, one of which is the medical aesthetics business unit (MAB Unit). During the period in which the events relevant to this proceeding occurred, Mr Krishna Sai was the manager of the MAB Unit, and Mr Allen was one of three regional sales managers who were employed within the MAB Unit. Mr Muhle, who I have already noted was Allergan’s Vice President and Managing Director of Australia and New Zealand, was responsible for overseeing, and for the overall management of, the MAB Unit.[1]

   [1] G Muhle affidavit, 09.08.2018, [3]

5 September 2017 - Conversation between Mr Allen and Mr Sai

1. On or about 4 September 2017 Mr Muhle became aware of a “customer issue”. The customer was a doctor, and the issue was that Allergan had frozen the doctor’s account. Mr Muhle understood the doctor wanted to speak to him.[2]

   [2] G Muhle affidavit, 09.08.2018, [5]

2. At 5:24 pm on 4 September 2017 Ms Candi Wallis sent an email to Mr Sai that was copied to Mr Allen and to Mr Muhle.[3] I infer that Ms Wallis was then employed by Allergan, and that she sent the email at the request of Mr Muhle. In her email Ms Wallis referred to a doctor having called in the afternoon, noted that the doctor stated he had a recent problem with one of the staff of Allergan, and said the doctor wanted to talk to “Gerry” which, I infer, was intended to be a reference to Mr Muhle.

   [3] K Allen affidavit, 07.07.2018, [5]; annexure 1

3. Mr Sai responded by email sent at 11:49 pm on 4 September 2017.[4] Mr Sai said “this account openly is posting on Facebook that they want to onsell”, that Mr Sai had “an amicable chat with him 4 weeks ago, and he understood”, and “Kevin” – by which I find Mr Sai intended to refer to Mr Allen – “met him in the last 2 weeks”. Mr Sai then asked Mr Allen whether he had “any context to” the doctor “now wanting to reach out to Gerry”. Mr Muhle responded by email sent at 4:34 pm on 5 September 2017 in which he stated that “[a]ny background would be great then I could reach out”.[5]

   [4] K Allen affidavit, 07.07.2018, [5]; annexure 2

   [5] K Allen affidavit, 07.07.2018, [5]; annexure 3. Both in the Form 2 and in Mr Allen’s first affidavit it is stated Mr Muhle sent this email “on the same day” as Mr Sai sent his email of 4 September 2017, thus implying that Mr Allen sent his email in response to Mr Muhle’s email on the same day, that is, on 4 September 2017, and that the conversation between Mr Sai and Mr Allen also occurred on the “same day”, namely, 4 September 2017. It is clear, however, that Mr Muhle sent his email in the afternoon of 5 September 2017, Mr Allen responded to that email on 5 September 2017 and that his conversation with Mr Allen occurred on 5 September 2017.

4. Mr Allen responded by sending an email to “all” which at the very least included Mr Sai and Mr Muhle.[6] Mr Allen referred to Mr Sai and “Christine” having met with the doctor “last week”, and set out the matters that were discussed at that meeting. Mr Allen said the doctor expressed confusion why he was not allowed to buy Allergan products, even for personal use, the doctor said that “this could be regarded as restriction of trade”, and Mr Allen having stated to the doctor that he would speak to Mr Sai and see if “we could allow him to buy for personal use at least”. Mr Allen then noted that Mr Sai informed Mr Allen “to wait another couple of months”, and that “Christine saw him yesterday and covered this and that he would not be allowed access to Belkyra yet”.

   [6] K Allen affidavit, 07.07.2018, [5]; annexure 3

5. According to Mr Allen, within an hour of his sending his email he received a telephone call from Mr Sai. Mr Sai was angry because Mr Allen had sent the email, stating that Mr Allen had misrepresented the meeting with the doctor. The conversation ended with Mr Sai demanding that he wanted the matter sorted out by close of business that day, and for Mr Allen to text Mr Sai when that was done. The statements Mr Allen deposes Mr Sai made during the conversation were littered with swear words.[7]

   [7] K Allen affidavit, 07.07.2018, [9]

6 September 2017 – Mr Allen informs Mr Muhle of conversation with Mr Sai

1. On 6 September 2017 Mr Muhle telephoned Mr Allen. Mr Allen and Mr Muhle have given accounts of the conversation which to some extent conflict. On Mr Allen’s account,[8] it is not apparent why Mr Muhle telephoned Mr Allen. Mr Allen simply deposes that he received a telephone call from Mr Muhle “who requested me to take time and collect my thoughts”. Mr Allen then says that he “was uncomfortable doing this”, but he could not “let this one go”. After Mr Muhle said “Go on. What’s on your mind”, Mr Allen “recounted the incident”, this being the conversation Mr Allen says he had with Mr Sai as set out by Mr Allen in his affidavit of 7 July 2018 (first affidavit). After he recounted the incident, words to the following effect were said:

   Mr Muhle:He said that? Those words?

   Mr Allen:Yes, and more. Honestly Gerry, if anyone had spoken to me like that outside of a work environment I would have decked them. In all my career, I have never been spoken to like that, I was absolutely shocked.

   [8] K Allen affidavit, 07.07.2018, [14]

2. There then followed discussion about Mr Allen taking off a couple of days to calm down and relax after which Mr Allen said that Mr Sai “has a history of doing this sort of thing”, but he had “never been at the receiving end of it”.

3. According to Mr Muhle,[9] he initiated the telephone conversation with Mr Allen because he told Mr Allen that he would like to try and contact the doctor “to reach out and follow up”, but because Mr Muhle had never met the doctor, he asked Mr Allen whether he could give Mr Muhle “some background information to find out what has occurred”. Mr Allen said he understood Mr Sai had telephoned the doctor “about the on selling”, and that the doctor now understood Allergan’s position, but he would like to speak with Mr Muhle. Mr Allen then asked whether he could “raise something else with” him. Mr Allen said he had a “very tense conversation with” Mr Sai during which Mr Sai swore to Mr Allen and was “very angry, using words like fuck and cunt”, and that Mr Allen “felt really rattled and disrespected” by Mr Sai. In response to Mr Muhle asking whether Mr Sai “said those words”, Mr Allen said Mr Sai “has a history of doing this”, but Mr Allen had “never been at the receiving end of it”. Mr Allen then said he was really angry and did not want to go “to the MALT meeting next week in Sydney”, “MALT” being the acronym for “Medical Aesthetics Leadership Team”. The conversation continued as follows:

   Mr Allen:Frankly, if I was in the same room as Krish, I would probably deck him.

   Mr Muhle:You probably shouldn’t attend the meeting.

   Mr Allen:I don’t want to lose my job over this.

   Mr Muhle:This is not about losing your job Kev, I understand your side of the story but I need to speak to Krish and get his version of this conversation and how it went down. Why don’t you take some days off including the weekend to calm down and relax and let me dig deeper to understand this. You sound upset, don’t come to the MALT meeting. I’ll contact HR to reach out to you later, check in and see if you are okay.

   [9] G Muhle affidavit, 09.08.2018, [9]

4. In his affidavit made on 27 August 2018 (second affidavit) Mr Allen responds to this part of Mr Muhle’s affidavit. Mr Allen denies he said words to the effect of: “Frankly, if I was in the same room as Krish, I would probably deck him”. Mr Allen says he said words to the effect of: “If someone had spoken to me like that outside a pub, bar, street, then I might punch them”.[10]

   [10] K Allen affidavit, 26.08.2018, [19], [20]

5. Mr Allen and Mr Muhle were both cross-examined about their accounts of the conversation they had with each other on 6 September 2017. It was put to Mr Allen that he became aware of Mr Muhle’s account of the conversation at the time he received the first and last warning letter on 19 September 2017 (to which I refer later in these reasons), the initial response from his lawyer was to deny the events particularised in the letter without then giving his version of the events, Mr Allen first presented his version of the events though his lawyer’s letter on 12 October 2017, and that the version of the conversation Mr Allen gave in his first affidavit differs from that which was set out in his lawyer’s letter of 12 October 2017.

6. As for Mr Muhle, he did not accept that Mr Allen said or may have said words to the effect that if someone had spoken to him like that outside a work environment he would “punch” them. Mr Muhle said he considered that a statement by Mr Allen that he would “punch” Mr Sai if he were in the same room as him is different from a statement to the effect that if someone had spoken to him in the way Mr Sai did outside a work environment Mr Allen would “punch” that person. Mr Muhle did not accept he did not take seriously the statements Mr Allen made. Mr Muhle did not accept he did not take immediate action against Mr Allen; Mr Muhle said he immediately informed human resources. Mr Muhle did not accept that he issued the first and final warning letter to discourage Mr Allen from pursuing his complaint.

7. There are a number of matters that point to Mr Muhle’s account being the more probable of the two accounts of the conversation between Mr Allen and Mr Muhle.

   a)First, Mr Allen’s statement that he would probably “deck” someone was the product of anger and upset; and that anger and upset was induced by Mr Allen’s perceptions of Mr Sai’s conduct during the telephone conversation he had with him on 5 September 2017. In those circumstances, it is more likely that Mr Allen’s statement that he would probably “deck” someone would have been directed to the person who had caused Mr Allen to be angry and upset, namely, Mr Sai, rather than to some hypothetical person disconnected from the context that induced Mr Allen’s anger and upset.

   b)Second, on Mr Muhle’s account of the conversation, Mr Allen’s statement that he would probably “deck him” was made in the context of Mr Allen stating he did not want to attend the MALT meeting that was to be held in the following week. Mr Allen does not dispute he said words to the effect that he did not want to go to the MALT meeting next week in Sydney;[11] nor does he say there was no meeting of MALT that was scheduled to take place the following week in Sydney at which both Mr Allen and Mr Sai would be present. These matters suggest Mr Allen had a particular set of circumstances in mind when he gave thought to the possibility of punching someone. That increases the probability that Mr Allen’s statement about punching someone would have been directed to Mr Sai in the circumstances of a particular meeting, not to some hypothetical person.

   c)Third, and as I set out below, according to Mr Muhle’s evidence which was not challenged, on 11 September 2017 Mr Muhle informed Mr Sai that Mr Allen told Mr Muhle and Ms White that he would probably “deck” Mr Sai. Mr Muhle’s evidence is to a large extent corroborated by the email Mr Sai sent on 11 September 2017 where he stated that Mr Muhle had informed him that Mr Allen would punch Mr Sai in the face.[12] That Mr Muhle shortly after his conversation with Mr Allen communicated to Mr Sai the substance of the account of his conversation with Mr Allen that he has given in his affidavit increases the probability that Mr Muhle’s recollection is accurate.

   d)Fourth, according to Ms White’s evidence that I set out below, Mr Allen said to her on the same day words to the effect that he did not want to attend the meeting next week because if he was in the same room with Mr Sai he might punch him. This is similar to the statement Mr Muhle recalls Mr Allen made to him, namely, if he were in the same room as Mr Sai, he would probably deck him. Ms White was not cross-examined, and it has not been suggested that her recollection of her conversation with Mr Allen is the product of any collusion with Mr Muhle or reconstruction because of discussions she may have had with Mr Muhle or anyone else. In those circumstances, Ms White’s recollection that Mr Allen said to her words similar to the effect of the words Mr Muhle recalls Mr Allen said to him increases the probability that Mr Allen did speak words to the effect as recalled by Mr Muhle.

   [11] K Allen affidavit, 26.08.2018

   [12] G Muhle affidavit, 09.08.2018, annexure 1

8. For these reasons, I prefer Mr Muhle’s account of the conversation Mr Allen had with Mr Muhle on 6 September 2017. I therefore find that during that conversation Mr Allen said to Mr Muhle words to the effect that if he were in the same room as Mr Sai he would probably deck him.

6 September 2017 – Mr Muhle informs Ms White of his conversation with Mr Allen and requests Ms White check up on Mr Allen

1. According to Mr Muhle, after his conversation with Mr Allen he walked over to the human resources office and spoke with Ms White about the conversation he had with Mr Allen.[13] Ms White was employed as the human resources manager of Allergan. Mr Muhle says that because Mr Allen was upset with the conversation he had with Mr Sai, Mr Muhle asked Ms White to contact Mr Allen immediately to check with him to see if he was okay. Mr Muhle says he could not at that stage contact Mr Sai because Mr Sai was on leave in India.[14]

   [13] G Muhle affidavit, 09.08.2018, [11]

   [14] G Muhle affidavit, 09.08.2018, [12]

2. Ms White has given evidence that is consistent with this part of Mr Muhle’s evidence.[15] Ms White says that on 6 September 2017 Mr Muhle walked into the human resources section of Allergan and had a conversation with her in which he said that he had spoken to Mr Allen about a customer issue, and that Mr Allen “raised the way” Mr Sai had spoken to him on the telephone, and Mr Allen sounded quite distressed. Ms White suggested she “reach out to” Mr Allen to “see if he is okay”. Mr Muhle thanked Ms White and asked her to let him “know how you go”.

   [15] H White affidavit, 08.08.2018, [3]

6 September2017 – Ms White speaks with Mr Allen

1. On 6 September 2017 Ms White and Mr Allen had a telephone conversation. Mr Allen and Ms White have given accounts of the conversation that in some respects conflict. According to Mr Allen,[16] Ms White telephoned him while at the airport. Ms White asked Mr Allen what had happened and what Mr Sai had said. Mr Allen then “recounted the conversation to Ms White”, as well as the conversation Mr Allen had with Mr Muhle. The conversation concluded with Ms White stating that Mr Muhle “has approved you taking a few days off, relax”, and that Ms White will call Mr Allen when he is back on board.

   [16] K Allen affidavit, 07.07.2018, [16], [17]

1. According to Ms White,[17] immediately after her conversation with Mr Muhle on 6 September 2017 she telephoned Mr Allen, but left a voicemail message because Mr Allen did not answer her call. After leaving a voicemail message, Ms White sent a text message to Mr Allen stating she had just left a voicemail, and that she wanted to check with him whether he was okay, and requested that Mr Allen give Ms White a call back. Mr Allen responded by text saying he was in the field but would try and call from the airport. Later on the same day Mr Allen telephoned Ms White. Ms White asked Mr Allen what happened; she told Mr Allen she understood there was a customer issue that “Gerry is handling” but with which Ms White is not concerned; and that she was “checking to see if you are okay and if you need anything”. Mr Allen said he was not happy with the conversation he had with Mr Sai. In response to Ms White’s asking what kind of conversation, Mr Allen said there was a customer issue and Mr Sai told Mr Allen to sort it out; all Mr Allen did was to reply to Mr Muhle’s email; Mr Allen then got a call from Mr Sai; Mr Sai told Mr Allen “don’t take the moral high ground with me you bastard”, and that Mr Sai “was swearing a lot”. Mr Allen said he was in shock; he had not been spoken to like that in thirty one years of work; he saw “these patterns of behaviour in him losing control, he must have some kind of mental disorder”; and that Mr Sai accused Mr Allen of being unprofessional. Ms White said that Mr Muhle was involved and she asked Mr Allen what he wanted to do. Mr Allen said he wanted an apology from Mr Sai; Mr Allen was “concerned that now there is a target on my back and it’s only a matter of time before I’m out of [a] job”. The conversation continued as follows:

   Mr Allen:Gerry said I can take a couple of days off and not come back into work if I am not up to it, including the MALT meeting next week. The way I am feeling right now, I don’t want to come to the meeting next week because if I was in the same room with him, I might punch him.

   Ms White:Kev, you know you can’t say that. Don’t come to the meeting. If you come and there is an issue then I will have to get involved as HR.

   Mr Allen:I know this, ha ha, because you’d have to sack me.

   Ms White:Kev, hope you are okay and I will discuss this with Gerry, he has approved you taking some days off, I will call you when you are back on board.

   [17] H White affidavit, 08.08.2018, [5]-[9]

2. Mr Allen denies Ms White’s version of the conversation.[18] Mr Allen says he did not say words to the effect of: “I don’t want to come to the meeting next week because if I was in the same room with him, I might punch him”. Mr Allen says that during the conversation he said words to the effect that he did not “want to be in the same room as Mr Sai until the issue between” Mr Sai and Mr Allen has been resolved. Mr Allen also says that during that conversation he said words to the effect:

   I have never been spoken to like that in all my life. If someone had spoken to me like that outside a pub, bar, street, then I might punch them.

   [18] K Allen affidavit, 27.08.2017, [5]-[10]

3. Mr Allen also denies that Ms White said words to the effect of “Kev you know you can’t say that”, or that he laughed and said words to the effect of “I know this, because you would have to sack me”.[19]

   [19] K Allen affidavit, 27.08.2017, [9]

4. Ms White was not cross-examined. Although I am not bound to accept her evidence only because she has not been cross-examined, I prefer her evidence of the conversation she had with Mr Allen.

   a)First, for reasons I have already given, it is more probable that Mr Allen’s statement that he might punch someone would have been directed to Mr Sai, the very person who had caused Mr Allen to be upset such as to induce the statement that he might punch that person, not some hypothetical person in a context removed from the circumstances in which Mr Sai caused Mr Allen’s upset.

   b)Second, on Ms White’s account of the conversation, Mr Allen made the statement that he might punch someone immediately after Mr Muhle told Mr Allen to take a couple of days off and not come back into work if he was not up to it, including not attending the MALT meeting because he did not want to be in the same room as Mr Sai. Mr Allen does not dispute he said words to this effect. These matters suggest Mr Allen had a particular set of circumstances in mind when he said he might punch a person, namely, Mr Allen’s attending the MALT meeting and, for that reason, being in the same room as Mr Sai. That increases the probability that Mr Allen’s statement that he might punch someone was directed to Mr Sai, not to some hypothetical person.

   c)Third, as I have already noted, Mr Muhle has given evidence that Mr Allen said to him words to the effect that if he was in the same room as Mr Sai he “would probably deck him”. That Mr Allen said words to this effect to Mr Muhle, which are similar to the effect of the words Ms White deposes Mr Allen spoke to her, increases the probability that Mr Allen did say words to the effect as recalled by Ms White.

5. I find, therefore, that on 6 September 2017 Ms White and Mr Allen had a conversation during which he said words to the effect that the way he was feeling he did not want to come to the meeting next week because if he was in the same room with Mr Sai he might punch him.

6 September 2017 – Ms White reports to Mr Muhle about her conversation with Mr Allen

1. According to Ms White, on 6 September 2017, after her conversation with Mr Allen, she had a conversation with Mr Muhle. Ms White told Mr Muhle she had spoken to Mr Allen “and he isn’t happy”. Mr Muhle asked whether Ms White had “any knowledge of similar behaviour from Krish”, to which Ms White responded: “To my knowledge, I had not seen or heard of anything like this”.[20] Mr Muhle does not refer to this conversation in his affidavit. I find that a conversation to the effect deposed by Ms White occurred.

   [20] H White affidavit, 08.08.2018, [10]

2. Mr Allen took leave until 18 September 2017.[21]

   [21] K Allen affidavit, 07.07.2018, [19]

11 September 2017 – Mr Muhle speaks with Mr Sai about Mr Allen’s claimed conversation with Mr Sai

1. According to Mr Muhle, on 11 September 2017, when Mr Sai himself had returned from leave, Mr Muhle had a conversation with Mr Sai to the following effect:[22]

   Mr Muhle:Krish, I had a conversation with Kev and he told me that you and him had a phone call whilst you were on leave, he was very shook up and emotional and said that you swore quite a bit and yelled and disrespected him, I need to understand what happened on that call and work out the next steps, he said that you used words like fuck and cunt, can you tell me what happened?

   Mr Sai:Yes, I had the phone call with Kev and raised my voice because of some of the actions he took with the customer but I certainly did not use the words fuck and cunt, I did tell him that you have let me down and I’m really disappointed in you.

   Mr Muhle:Okay, I’ve told Kev to take a few days off and that he doesn’t need to come to your MALT meeting, he said he would probably deck you to me and to Hayley he said if he was in the same room as you he would punch you, I am uncomfortable with this and we need to resolve this before embedding him back into your team.

   [22] G Muhle affidavit, 09.08.2018, [14]

2. I find that a conversation to the effect deposed by Mr Muhle occurred. I do so because it has not been suggested I should not accept Mr Muhle’s evidence, but, more importantly, also because it is consistent with the email Mr Sai sent on 11 September 2017 after Mr Muhle spoke with Mr Sai.

11 September 2017 – Mr Sai sends email expressing concern for personal safety

1. At 8:31 pm on 11 September 2017 Mr Sai sent the following email to Mr Muhle and Ms Pinter, the human resources director of Allergan (errors in original):[23]

   [23] G Muhle affidavit, 09.08.2018, [16]; annexure GM1

   During the debriefing I had this afternoon with Gerry re Kevin Allen’s conversation with him last week, I am given to understand that Kevin had said to the effect, he would have ‘allegedly punch me in the face’ this week had he been here in the Sydney office face to face in a room with me. Given how busy today has been, I have not fully comprehended the gravity of his comment. It has hit me now.

   While I am certainly happy and most sincere to reflect with my phone conversation with Kevin on Sep 6^th (the what and the how), I take his comment very seriously as a physical threat and I am concerned for my personal safety in any and all my future dealings with Kevin.

   Can we discuss this in the morning please.

12 September 2017 – Mr Muhle consults with Ms Pinter and decides to send first and final warning letter

1. According to Mr Muhle, on 12 September 2017 he consulted Ms Pinter about what the appropriate next steps were “given the threat of physical violence made by [Mr Allen] against Mr Sai”. After discussing the matter with Ms Pinter, Mr Muhle decided that Allergan should issue “a first and final warning letter”. Mr Muhle says this about the reasons why he made this decision:[24]

   I took this course of action regardless of the email I received from Mr Sai. I had reflected on the comments the Applicant made to me and the comments to Ms White and considered that the comments were very serious and in breach of the Respondent’s code of conduct. This was the only reason that I issued the First and Final Warning Letter.

   [24] G Muhle affidavit, 09.08.2018, [17]

2. Mr Muhle also says as follows:[25]

   I also wanted the relationship between Mr Sai and [Mr Allen] to be repaired and I decided that the appropriate method to resolve this issue was mediation to get everything out on the table and have an independent expert in mediation with experience in this area to try and resolve the issue.

   At this time, I had no thoughts of, and I had not had any conversation with any person employed by the Respondent about taking any further actions against [Mr Allen] or terminating [Mr Allen’s] employment. What I wanted to achieve was to repair the working relationship between [Mr Allen] and Mr Sai and I genuinely believed that this could be achieved through mediation.

   [25] G Muhle affidavit, 09.08.2018, [18], [19]

3. Mr Muhle was cross-examined about the first and final warning letter. Mr Muhle said that although he could not recall, he thinks he suggested that the first and final warning letter should be sent. It was suggested to Mr Mule that he did not immediately send the first and final warning letter to Mr Allen because he did not seriously apprehend any serious threat from Mr Allen. Mr Muhle said he felt there was a perceived threat because an employee – Mr Sai – believed there was a perceived threat. To the extent this part of Mr Muhle’s evidence is relevant, I accept it. Mr Muhle did not himself observe the events about which Mr Allen complained. What was before him were conflicting accounts of an incident, with one of the employees, Mr Sai, having expressed concerns for his safety. I otherwise accept Mr Muhle’s evidence of the reason for which he decided to issue a first and final warning letter to Mr Allen.

18 September 2017 – Ms White informs Mr Allen of mediation with Mr Sai

1. On 18 September 2017, being the day he returned from leave, Mr Allen had a telephone conversation with Ms White. According to Mr Allen, he indicated to Ms White that he would like the issues resolved so that he could move on, and Ms White indicated to him that he would be receiving a first and final warning letter.[26] Mr Allen says this “caught me off guard”.[27] Mr Allen further says that he “corrected Ms White’s understanding about what I said shortly after the incident”, and that Ms White responded by saying words to the effect: “there is nothing I can do about it”.[28]

   [26] K Allen affidavit, 07.07.2018, [20]

   [27] K Allen affidavit, 07.07.2018, [21]

   [28] K Allen affidavit, 07.07.2018, [22]

2. According to Ms White, at 8.30 am on 18 September 2017 she and Ms Pinter attempted to call Mr Allen, but were unable to reach him. At 8:43 am Ms White sent a text message to Mr Allen stating she had tried to contact him “for our catch up this morning as scheduled for 8:30 am”, and she requested Mr Allen call her “asap”.[29] At approximately 9:00 am Mr Allen called Ms White. After Mr Allen apologised for not calling at 8:30 am because he thought the call had been scheduled for 9:00 am, Ms White asked Mr Allen how he was feeling and whether he was back at work. Mr Allen said he was feeling pretty much the same way as before, and he was concerned there was not going to be any investigation into Mr Sai’s behaviour. Ms White said “[w]e will be talking to Krish and we may organise a mediator so that you can both communicate better and move forward”. Mr Allen said that it was all a bit much, but he was happy to go along with that, but all he was looking for was an apology. Mr Allen said he was concerned “I have a target on my back”, and that it was only a matter of time before he will be pushed out of the company; “[i]t will be my word against his”. Ms White concluded the conversation by saying “[w]e will speak to Krish as part of this process and come back to you”.[30] Ms White says she did not say to Mr Allen words to the effect that he would be receiving a first and final warning letter the next day.[31] Ms White says Mr Allen did not correct her understanding of her conversations with Mr Allen on 6, 18, and 19 September 2017.[32]

   [29] H White affidavit, 08.08.2018, [11]

   [30] H White affidavit, 08.08.2018, [13].

   [31] H White affidavit, 08.08.2018, [16]

   [32] H White affidavit, 08.08.2018, [18]

3. It will be seen there is a conflict in the accounts given by Ms White and Mr Allen of the conversation they had on 18 September 2017. In particular, Mr Allen does not refer to Ms White having stated that she would be talking to Mr Sai, or about the possibility of Allergan organising a mediator; and Ms White says she did not say Mr Allen would be receiving a first and final warning letter on the following day. These differences are not material to the question I have to determine. Mr Allen accepts that in a conversation he had with Ms White and Ms Pinter on 19 September 2017 it was said that there would be a mediation process with Mr Sai;[33] and Ms White deposes that on 19 September 2017 she had a telephone conversation with Mr Allen in which she said that he will be receiving a first and final warning letter.[34] I note, however, that in an email Ms Pinter sent on 19 September 2017 attaching the first and final warning letter (to which I refer below),[35] Ms Pinter stated: “As advised by Hayley White on Monday, 18 September, please see attached a warning letter in relation to your recent conduct during your employment with Allergan”. This suggests that, in her conversation Ms White had with Mr Allen on 18 September 2017 she did say that Mr Allen would be receiving a first and final warning letter on the following day.

   [33] K Allen affidavit, 07.07.2018, [23]

   [34] H White affidavit, 08.08.2018, [19]

   [35] K Allen affidavit, 07.07.2018, [36]; Annexure 10

4. There is a conflict of evidence that may be relevant, and that relates to Mr Allen’s deposing that he corrected Ms White’s understanding of what Mr Allen had said about his conversation. Mr Allen does not say in his first affidavit what correction he says he made. If, however, Mr Allen here intended to say that he informed Ms White that if someone outside a pub, bar, or street, had spoken to Mr Allen like Mr Sai had spoken to him he might punch them, I would not accept that evidence. First, I have already accepted Mr Muhle’s evidence that on 6 September 2017 Mr Allen said to him words to the effect that if he were in the same room as Mr Sai he “would probably deck him”, and I have also accepted Ms White’s evidence that Mr Allen said to her words to the effect that if Mr Allen were in the same room as Mr Sai “I might punch him”. Second, as I set out later in these reasons, in the letter dated 4 October 2017 Mr Allen instructed his lawyer to send in response to the first and final warning letter Allergan issued on 19 September 2017, the letter simply denies the words particularised in the letter, and does not attempt to put a corrected version. Nor does the letter state that Mr Allen had in fact put a corrected version to Ms White before the letter was sent. That Mr Allen did not instruct his lawyer on that occasion to put forward a corrected version of what Mr Allen told Mr Muhle and Ms White about the incident with Mr Sai, or to state that Mr Allen had previously put forward a correct account, is a ground for finding that he did not do so two weeks before that letter was sent.

18 September 2017 – Ms White and Ms Pinter meet with Mr Sai

1. According to Ms White, after her conversation with Mr Allen, she and Ms Pinter met with Mr Sai “to investigate the Conversation”, that is to say, the conversation Mr Allen said he had with Mr Sai on 5 September 2017. Mr Sai said he acknowledged there was swearing “which is common for our conversations”, but he said it was not directed at Mr Allen. Mr Sai denied he said to Mr Allen: “don’t take the high moral ground with me you bastard”, and also denied saying “fix this or your arse is on the line”.[36]

   [36] H White affidavit, 08.08.2018, [14]

2. It was not suggested that a conversation to this effect did not take place; and it seems probable, given the other evidence before me, that a conversation to this effect did take place.

19 September 2017 – Mr Allen has conversation with Ms Pinter and Ms White

1. In his first affidavit Mr Allen says that on 19 September 2017 he, Ms White, and Ms Pinter had “another telephone conversation”.[37] Mr Allen deposes he said he wanted the issues resolved so that he could go on with his job, and Ms White and Ms Pinter indicated Mr Allen would be required to participate in a mediation with Mr Sai.

   [37] K Allen affidavit, 07.07.2018, [23]

2. According to Ms White the conversation she had with Mr Allen was to the following effect:[38]

   Ms White:Hi Kev, I understand you said the same to me as you said to Gerry about punching Krish and for this reason you are receiving a first and final warning letter.

   Mr Allen:This is the start of getting me out and Krish is getting nothing and getting away with it. This changes everything now, I don’t know about any of this.

   Ms White:Let’s move forward and start the mediation process so you two can work out how to work together and move forward.

   [38] H White affidavit, 08.08.2018, [19]

3. In his second affidavit,[39] Mr Allen deposes Ms White said she understood “you said the same to me as you said to Gerry about punching Krish and for this reason you are receiving a first and final warning letter”. Mr Allen said that was not fair. Mr Allen further said:

   Hayley, that is not what I said. What I said was if someone had spoken to me like that outside a pub, bar, street, then I might punch them. At no point did I make a direct threat on Mr Sai’s person in a professional environment. This is the start of getting me out and Krish is getting nothing and getting away with it. This changes everything now, I don’t know about any of this.

   [39] K Allen affidavit, 27.08.2017, [16]

4. Ms White said she was sorry, but it was out of her hands.

5. I do not accept Mr Allen’s account of the conversation. In particular, I do not accept that Mr Allen corrected Ms White’s account of what he said to Mr Muhle and to her “about punching Krish”. First, I have already accepted Mr Muhle’s evidence that Mr Allen said that if he were in the same room as Mr Sai he “would probably deck him”, and I have also accepted Ms White’s evidence that Mr Allen told her words to the effect that if Mr Allen were in the same room as Mr Sai “I might punch him”. Second, in the letter dated 4 October 2017 Mr Allen instructed his lawyer to send a response to the first and final warning letter Allergan issued on 19 September 2017, the letter simply denies the words particularised in the letter, and does not attempt to put a corrected version. Nor does the letter state that Mr Allen had in fact put a corrected version to Ms White before the letter was sent. That Mr Allen did not instruct his lawyer on that occasion to put forward a corrected version of what Mr Allen told Mr Muhle and Ms White about the incident with Mr Sai, or to state that Mr Allen had previously put forward a correct account, is a ground for finding that he did not do so two weeks before that letter was sent.

19 September 2017 – Mr Allen given first and final warning letter

1. On 19 September 2017 Mr Muhle signed the following letter (First and Final Warning Letter).[40]

   [40] G Muhle affidavit, 09.08.2018, [20]; Annexure GM3

   I am writing to you about your conduct during your employment with Allergan.

   On 6 September, 2017 you had a telephone conversation with me during which you were relaying a story about a conversation you’d had with your manager, Krishna Sai, that you said upset you. You were due to attend a team meeting with Mr Sai and the Medical Aesthetics Leadership Team in Sydney on Tuesday, 12 September and when asked whether you would be attending, you responded with words to the effect that ‘if I was in the same room as Krish I would probably deck him.’

   Later that same day, you had a telephone conversation with Ms Hayley White, Human Resources Manager, where in you reiterated your earlier threat to Mr Sai, saying words to the effect that ‘I don’t want to come to the meeting next week because if I was in the same room as him (Mr Sai) I might punch him.’

   As you would be aware, Allergan has a Work Health & Safety policy which it takes very seriously. We are committed to providing a safe working environment for all employees, contractors and visitors to our premises and it is every employee’s responsibility to ensure the workplace is safe. Mr Sai has expressed his concern to me and Lesley Pinter, Human Resources Director, about your physical threat towards him and his personal safety when he is next in your presence.

   Threatening physical violence to any employee of Allergan will not be tolerated. After considering the situation it is expected that your conduct improves immediately and specifically that you never make any threats of physical violence to any employee, contractor or visitor to Allergan’s premises.

   This is your first and final warning letter. Your employment will be terminated if there is ever a repeat of this conduct.

2. That letter was sent by Ms Pinter to Mr Allen by email at 4:09 pm on 19 September 2017 in which she stated the following:[41]

   As advised by Hayley White on Monday, 18 September, please see attached a warning letter in relation to your recent conduct during your employment with Allergan.

   On a separate note, it is now necessary to find a way for you and Krish to work together in the future. To that end we will engage the services of an external advisor to assist with this. Once I have further details I will provide you with an outline of the next steps.

20-27 September 2017 – Mr Allen informed mediation with external consultant (Ms McLeay) arranged for 10 October 2017

[41] K Allen affidavit, 07.07.2018, [36]; Annexure 10

1. On 20 September 2017 “human resources” advised Mr Allen that mediation with an external consultant had been arranged between Mr Allen and Mr Sai on 10 October 2017.[42] To that end on 27 September 2017 Mr Allen received an email from the external consultant, Ms McLeay, attaching an agreement to mediate.[43] Ms McLeay’s name appears on the draft agreement where she is described as a “dispute management specialist”. The draft agreement describes the parties as Ms McLeay, Mr Allen, and Mr Sai, and states that the “issues to be mediated arise from the concerns in their workplace”.

4 October 2017 – letter from Mr Allen’s lawyer denying matters stated in the first and final warning letter and demands inquiry and demands its withdrawal

[42] K Allen affidavit, 07.07.2018, [26]

[43] K Allen affidavit, 07.07.2018, [28]; Annexure 5

1. Mr Allen did not sign the agreement. Instead he sought legal advice, which resulted in his lawyer, Mr Havenstein, sending a letter to Allergan dated 4 October 2017.[44] The letter opens with the following paragraph:

   My client has provided me with instructions in relation to an incident, which is the subject of the First and Final Warning Letter. My client acknowledges that there was recently a dispute between he [sic] and his manager Mr Krishna Sai, however, he denies the series of events as particularised in the First and Final Warning Letter. Further my client denies that he said the words which you have particularised in your letter.

   [44] K Allen affidavit, 07.07.2018, [29]; Annexure 6

2. Mr Havenstein stated that the First and Final Warning Letter was issued without Mr Allen having been given an opportunity to be heard, and that “[t]hese actions” not only constituted a denial of natural justice but also a violation of Mr Allen’s workplace rights. The letter demanded that Allergan immediately withdraw the First and Final Warning Letter, and that Allergan “properly conduct any investigation your office sees fit”. The letter concluded that Mr Allen “is attending a conciliation as between [Mr Allen] and Mr Sai through a third-party facilitator”, but that Mr Allen “seeks that the matters I have raised in this letter be addressed prior to the scheduled meeting”.

3. Mr Muhle became aware of the letter from Mr Havenstein and, although he says he found the request for an investigation “a strange request”, Mr Muhle “agreed to accommodate this request from” Mr Allen.[45]

5 October 2017 – Ms Pinter asks Ms McLeay to investigate the truth of Mr Allen’s claims about his conversation with Mr Sai

[45] G Muhle affidavit, 09.08.2018, [22]

1. That Mr Muhle did so is apparent from the following email Ms Pinter sent to Ms McLeay on 5 October 2017:[46]

   I wanted to raise a question with you about the warning letter we sent Kevin in relation to his threat to punch Krish. I wasn’t sure if I had sent Kevin’s warning letter to you previously so have attached. Whilst the threat was probably going to be raised by Krish at the Mediation, it has now become contentious as we have received the attached letter from Kevin’s lawyer denying the contents. So you have a complete picture of the conversations that led to the warning being given, would it be worth you speaking with Gerry Muhle and Hayley White prior to the mediation to hear their side of the events? If so, given that he has denied he has made those threats via this letter from his lawyer, as part of the mediation we would like your opinion as to where you believe the truth lies, as an independent mediator.

6 October 2017 – Mr Allen’s lawyer states Mr Allen will not attend meeting until matters stated in 4 October 2017 letter resolved

[46] K Allen affidavit, 07.07.2018, [36]; Annexure 10

1. Before Allergan communicated to Mr Allen or Mr Havenstein that it intended to conduct any investigation, Mr Havenstein sent a letter dated 6 October 2017 requesting that Allergan advise on its position in relation to the letter he sent on 4 October 2017.[47] Mr Havenstein confirmed Mr Allen would not be attending “the meeting on 9 October 2017” until the matters stated in the letter dated 4 October 2017 were resolved.[48] Mr Havenstein said that unless Allergan were to confirm its intention to resolve the dispute by close of business on 9 October 2017 Mr Havenstein would seek instructions to approach the Fair Work Commission under s.739 of the FW Act.

   [47] K Allen affidavit, 07.07.2018, [31]; Annexure 7

   [48] It appears that Mr Havenstein may have incorrectly believed that the meeting that had been scheduled for 10 October 2017 when it had in fact been scheduled for 9 October 2017.

6 October 2017 – Allergan agrees to investigate the issuing of First and Final Warning Letter

1. Ms Pinter responded to Mr Havenstein’s letter of 6 October 2017 by email sent on the same day.[49] After noting that as Mr Allen’s employer it was within Allergan’s rights to request Mr Allen’s attendance at the mediation to resolve the issues he raised between him and Mr Sai, Allergan had “determined that we will now have the issue of the First and Final Warning letter further investigated by our independent investigator on Tuesday, 10 October 2017, Ms Janice McLeay”. The email concluded by stating that Mr Allen was required to attend the Sydney office at 9:00 am so that he could meet Ms McLeay.

   [49] K Allen affidavit, 07.07.2018, [33]; Annexure 8, page 52

2. In the meantime, at 4:48 pm on 6 October 2017, Ms McLeay sent an email to Ms Pinter stating that she interviewed “Gerry and Hayley” (which I take to be a reference to Mr Muhle and Ms White). Ms McLeay then requested that Ms Pinter “send me a copy of any relevant policy that Kevin may have breached”.[50] Ms Pinter responded by email sent at 5:09 on 6 October 2017 attaching “an extract from Kevin’s contract in relation to termination”, and asking Ms McLeay to note cl.20.6(a) and (e). Ms Pinter also attached “a copy of our WHS policy”.[51] Clause 20.6(a) of Mr Allen’s contract of employment that was attached to Ms Pinter’s email provided that Allergan may terminate Mr Allen’s employment without notice if Mr Allen commits an act of serious misconduct, including, but not limited to, among other things, assault, and dishonesty; and cl.20.6(e) provided that Allergan may terminate Mr Allen’s employment without notice if he engages in conduct that causes serious and imminent risk to the health or safety of persons, or to the reputation, viability, or profitability of Allergan.

   [50] Exhibit B

   [51] Exhibit B

3. By letter dated 9 October 2017 Mr Havenstein informed Allergan Mr Allen would not be in the office that week “and will not be participating in the interview process today”. Mr Havenstein said he “will be in further contact shortly regarding this matter”. The letter attached a medical certificate to the effect that Mr Allen was receiving medical treatment for the period 7 to 13 October 2017 and would be unable to continue in his usual occupation.[52]

   [52] K Allen affidavit, 07.07.2018, [34]; Annexure 9

9 October 2017 – Ms Pinter informs Mr Allen of meeting on 18 October 2017 with investigator

1. On 9 October 2017 Ms Pinter sent an email to Ms McLeay informing her that Mr Allen has provided a “sick certificate” so that there will be a need to postpone the investigation meeting that had been scheduled for 10 October 2017.[53] Ms McLeay responded by email stating “Oh dear. Not surprising”, and provided available dates.[54] On the same day Ms Pinter sent to Mr Allen an email confirming that Allergan had reorganised the investigator to attend the Gordon office of Allergan on 18 October 2017.[55]

12 October 2017 – letter from Mr Allen’s lawyer setting out Mr Allen’s version of events including conversation with Mr Muhle of 6 September 2017

[53] Exhibit C

[54] Exhibit C

[55] K Allen affidavit, 07.07.2018, [35]

1. On 12 October 2017 Mr Havenstein sent a letter to Allergan.[56] It refers to Allergan’s request that Mr Allen attend a meeting on 18 October 2017 with an independent investigator, and asserts the request is not reasonable because, among other things, Allergan has not provided “details of what the investigation is about”, even though Mr Allen “made a specific complaint against Mr Sai” who is Mr Allen’s immediate superior. The letter then sets out “the series of events that lead [sic] to my client’s complaint”, stating that this was being provided to “assist the investigator”. The letter sets out the contents of the chain of emails to which I have already referred that immediately preceded the telephone conversation between Mr Allen and Mr Sai on 5 September 2017, and then Mr Allen’s account of his conversations with Mr Muhle and Ms White on 6 September 2017; Mr Allen’s account of his conversation with Ms White on 18 September 2017; and Mr Allen’s account of his conversation with Ms White and Ms Pinter on 19 September 2017. In the account of the conversation with Mr Muhle on 6 September 2017, the letter says Mr Allen said words to the following effect:

   Honestly Gerry, if anyone had spoken to me like that outside of a work environment I would probably have decked them. In all my career, I have never been spoken to like that, I was absolutely shocked.

   [56] K Allen affidavit, 07.07.2018, [38]; Annexure 11

2. Mr Havenstein then stated as follows:

   My client seeks to return to work but in an environment where he feels safe from such bullying and harassment and where he is not exposed to Mr Sai.

   I call upon you to provide a detailed response to the allegations, which I have now ventilated. I do not consider that there is a need to put my client through a rigorous investigation now that his issues are out in the open.

   I have given the names of many employees involved in the incident and I am sure your investigator can make a report to you upon which your future actions are tailored.

   I am prepared to attend however with my client at a meeting in which you are able to outline what processes you intend to implement to protect my client’s safety from the bullying and harassment of Mr Sai.

   I look forward to your urgent contact and seek your advises [sic] by close of business on Friday 13 October, failure for which will necessitate my seeking the assistance of the Fair Work Commission.

3. According to Mr Muhle,[57] he read Mr Havenstein’s letter dated 12 October 2017. He deposed that “[i]in respect of paragraph 6 of that letter, I did not consider it an accurate recollection of the conversation that I had with the Applicant”. Paragraph 6 of Mr Havenstein’s letter contains Mr Allen’s account of the conversation he had with Mr Muhle on 6 September 2017.

   [57] G Muhle affidavit, 09.08.2018, [26]

13-30 October 2017 – further correspondence

1. On 13 October 2017 Ms Pinter sent to Ms McLeay the following email:[58]

   Not surprisingly, Kevin is refusing to participate in this investigation and we are now in full dispute with him, via his lawyer. As such we are unable to proceed with the investigation next week. I am so sorry for mucking you about. They say they want the matter investigated to clear it up but that there is no need for Kevin to be spoken to as part of the process. Interesting approach. We have engaged Andrew Ball at EY to act on our behalf. Once we have a clearer picture of what we are dealing with I’ll let you know.

   [58] Exhibit D

2. Allergan responded to Mr Havenstein’s letter by an email sent by its lawyer, Mr Ball, on 17 October 2017.[59] Mr Ball said it was not unreasonable for Allergan to request Mr Allen to attend a meeting with an independent investigator because, “for amongst other reasons, it was your client’s request (pursuant to your letter dated 4 October 2017) that” Allergan “conduct an investigation”.

   [59] K Allen affidavit, 07.07.2018, [39], annexure 12, page 55

3. Mr Allen did not attend the meeting that apparently was scheduled for 18 October 2017. Instead, on 19 October 2017 Mr Havenstein sent a letter to Mr Ball noting “your advices” that Allergan provided to the independent investigator Mr Allen’s “version of events”, and expressing the “hope that the investigation can be concluded expeditiously”. [60] Mr Havenstein then referred to “two other important issues” Mr Havenstein addressed in his letter (of 12 October 2017), these being the request that Allergan withdraw the First and Final Warning Letter, and the processes Allergan proposed to put into place to protect Mr Allen when he returns to work, so that he feels safe from further bullying and harassment from Mr Sai. Mr Ball responded by email sent on 20 October 2017 stating that Allergan was prepared to “suspend” the First and Final Warning Letter “pending the outcome of the independent investigator’s investigation”.[61] Mr Ball also said that Allergen is committed to providing a safe workplace for Mr Allen and all its employees.

   [60] K Allen affidavit, 07.07.2018, [40], Annexure 12A, page 57

   [61] K Allen affidavit, 07.07.2018, [41], Annexure 12B, page 61

4. On 23 October 2017 Mr Havenstein sent Mr Ball a further email.[62] He queried what Ms Ball meant by suspending the First and Final Warning Letter. Mr Havenstein claimed that the First and Final Warning Letter was issued in “complete denial” of Mr Allen’s rights; and that Mr Ball’s letter was not a satisfactory response to Mr Havenstein’s request in relation to having a safe workplace. Mr Havenstein said that if Mr Ball did not respond by the close of business, he anticipated approaching the Fair Work Commission on the following day. Mr Ball responded by email sent on 24 October 2017 explaining what he meant by suspending the First and Final Warning Letter, and affirming Allergan’s commitment to providing a safe workplace for all of its employees.

   [62] K Allen affidavit, 07.07.2018, [42], Annexure 13, page 63

30 October 2017 – Ms McLeay provides report

1. On 30 October 2017 Ms McLeay provided a report titled “Report to Allergan Workplace Investigation” (Report).[63] The Report states that Ms McLeay was engaged to “investigate concerns raised by Kevin Allen . . . against his sales manager, Krishna Sai”. The Report records that a mediation had been arranged between Mr Allen and Mr Sai for 10 October 2017 but, after Mr Allen’s lawyer wrote a letter denying the matters that were the subject of the First and Last Warning Letter, “it was determined that it was inappropriate to proceed with the proposed mediation at that time and that the matters raised by Mr Allen should be investigated”. The Report also records the documents that were provided to Ms McLeay, and the people Ms McLeay interviewed, these being Mr Muhle, Mr Sai, and Ms White.

   [63] G Muhle affidavit, 09.08.2018, [37]; Annexure GM16, page 108

2. The Report first considered Allergan’s issuing the First and Final Warning Letter. The Report found it was not necessary for Mr Muhle to confirm that Mr Allen had made a threat of violence against Mr Sai because Mr Muhle “himself had heard the words used by Mr Allen”; Mr Allen’s threat was unambiguous, and Mr Sai expressed concern for his safety. In those circumstances Mr Muhle was required to act consistently with Allergan’s Workplace and Safety Policy. The Report concluded that “[r]egardless of whether Mr Sai’s telephone conversation with Mr Allen upset him, it was inappropriate for Mr Allen to threaten physical retaliation and it was appropriate that Mr Muhle issued the letter of warning”.

3. The Report then considered Mr Allen’s claim of harassment and bulling, and concluded the claim “is unsubstantiated”. The Report relied on two matters. The first was Mr Sai having given an account of his conversation with Mr Allen on 5 September 2017 that was different from that given by Mr Allen and which, if accepted, did not amount to harassment or bullying. The second matter was the Report’s concluding that Mr Allen’s credibility was “reduced”, whereas Mr Sai’s credibility was not “reduced”. The Report relied on Mr Allen having denied the words attributed to him in the First and Final Warning Letter, and giving an alternate version of what was said. The Report said that in so doing Mr Allen “inferred a lack of truthfulness in Mr Muhle’s version of events”. The Report found Mr Muhle’s and Ms White’s accounts of their conversations with Mr Allen had more credibility than Mr Allen’s account because of their lack of emotion, when compared with the emotion Mr Allen displayed, and because of the similarity of the accounts Mr Muhle and Ms White gave of their conversations with Mr Allen. In short, the Report concluded that Mr Allen’s account of his conversation with Mr Sai of 5 September 2017 was less credible than Mr Sai’s account because Mr Allen’s denial of the words attributed to him in the First and Final Warning Letter was not credible.

30 October 2017 – Mr Muhle receives Report and decides to terminate Mr Allen’s employment

1. According to Mr Muhle, on 30 October 2017 he received and read the Report. He noted the Report’s conclusion that it was appropriate for Allergan to issue the First and Final Warning Letter; that there was insufficient evidence to substantiate Mr Allen’s version of his telephone conversation with Mr Sai on 5 September 2017; that even if Mr Allen had substantiated his account of the conversation with Mr Sai, that did not justify Mr Allen making threats of physical violence; and that Mr Allen’s claim Mr Sai harassed and bullied him is unsubstantiated. In the light of these conclusions, Mr Muhle decided to reinstate the First and Final Warning Letter.

1. Second, as I have found, Mr Allen, admittedly in a state of great anger and upset, said words both to Mr Muhle and Ms White which suggested the possibility of violence by Mr Allen against Mr Sai. That is not something Mr Muhle, as a responsible manager, could have ignored. The manner in which Mr Muhle dealt with that issue was to inform the potential target of the threat, Mr Sai, that the threat of violence had been made, and to send the First and Final Warning Letter to Mr Allen. These responses, too, were reasonable. It was appropriate that Mr Sai, the potential victim of a threat of violence, be informed of the threat; and the First and Final Warning Letter went no further than stating that any further threat of violence by Mr Allen would not be tolerated and, if repeated, would result in his dismissal. There the matter arising out of the First and Final Warning Letter would have ended, had Mr Allen not taken exception to it.

2. It was suggested to Mr Muhle that he himself did not fear that Mr Allen would carry through his threat because Mr Allen had only spoken in anger, and because Mr Muhle considered that, notwithstanding the threat of violence, Mr Allen and Mr Sai were capable of mediating their differences. These matters, however, are not to the point. Mr Muhle could not have ignored Mr Allen’s threat of violence; and Mr Muhle’s seeking to resolve by mediation the issues between Mr Sai and Mr Allen, including those that arose out of Mr Allen’s threat of violence, was a reasonable response to those issues.

3. I propose to make an order dismissing the application. I will also reserve to the parties liberty to apply in relation to costs within fourteen days.

I certify that the preceding one-hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  5 April 2019