[2016] FWC 302 [Note: An appeal pursuant to s.604 (C2016/3324) was lodged against this decision - refer to Full Bench decision dated 31 May 2016 [[2016] FWCFB 3410] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brendan Farnhill
v
Australian Business Academy Pty Ltd
(U2014/16657)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 15 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 24 December 2014 Mr Brendan Farnhill (the Applicant) filed an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by Australian Business Academy Pty Ltd (ABA – the Respondent) on 16 December 2014 was unfair.

[2] In its response, which was lodged with the Fair Work Commission (the Commission) on 7 January 2015, ABA raised a jurisdictional objection regarding the application. ABA objected to the application on the basis that Mr Farnhill had not been dismissed as he had resigned from his employment on 16 December 2014. However, that objection was not pressed at the hearing of the application.

[3] The application was heard on 23 April and 25 and 26 June 2015. Mr John Davey appeared with permission for Mr Farnhill, while Dr Miles Jakeman, the Principal, Chief Executive Officer and a Director of ABA, appeared for the Respondent. The hearing concluded on the basis that closing submissions would be provided in writing, with the Applicant’s closing submissions in reply to be filed on 7 August 2015.

[4] Mr Farnhill gave evidence on his own behalf. The following individuals gave evidence for the Respondent:

Dr Jakeman

Mr Andrew Pike, ABA’s General Manager;

Ms Hannah Berry, Business Manager with the Citadel Group Limited (CGL) at the time of Mr Farnhill’s dismissal (CGL is the owner of ABA);

Mr Matthew Smith, a former General Manager of ABA;

Ms Nicole Crossley, ABA’s Canberra Campus Manager;

Mrs Le-anne Jakeman, a contractor engaged by CGL; and

Ms Sonja Butcher, Workforce Manager and Capability Leader – People with CGL

[5] Ms Belinda Reed, a colleague of Mr Farnhill, and Mr Cory Plumb, a graduate of ABA, also gave evidence. Ms Reed provided a witness statement at the request of ABA, while Mr Plumb gave evidence as a result of an order to attend issued by the Commission.

[6] For the reasons outlined below, I have found that Mr Farnhill’s dismissal was not harsh, unjust or unreasonable. Accordingly his application is dismissed.

Background

[7] Mr Farnhill commenced employment with ABA on 7 January 2013 and at the time of his dismissal was employed as ABA’s Training Manager, with his position also identified as Services Manager on the ABA organisation chart which was provided by ABA during the course of the proceedings. This was a senior management position reporting directly to ABA’s General Manager.

[8] On 11 December 2014 Mr Farnhill and Ms Reed caught up for drinks at Mr Farnhill’s residence. Later that evening they went to Canberra City to meet Ms Jamie-Leigh Kelly, at the time a current ABA student. Prior to becoming a student of ABA, Ms Kelly was a friend of Ms Reed’s. Mr Farnhill and Ms Reed met up with Ms Kelly and a number of other ABA students at the Waldorf Apartments (the Apartments). The other ABA students had, with the exception of one, completed their coursework, with all of the other students set to graduate on 16 December 2014. All but one of the students, a married woman, were sharing a room at the Apartments. After a short time at the Apartments, the group proceeded to visit a number of pubs and clubs in Canberra City.

[9] Late in the evening, the group decided to get some food at McDonald’s. After this the married student was picked up by her husband and went home. The group then walked two of the students back to the Apartments. The remaining group (i.e. Mr Farnhill, Ms Reed, Ms Kelly and Ms Plumb) then returned to Cube nightclub, the last venue they had been at. Shortly after this, Mr Plumb, a diabetic, decided to return to the hotel room to get some jellybeans as he felt as though his blood sugar levels were low. When Mr Plumb came back to Cube, he and Mr Farnhill went back into the nightclub while Ms Reed and Ms Kelly stayed outside to get some fresh air. At around 3 am, Ms Kelly was heading back to the hotel with a male friend that she had met. The rest of the group then decided to call it a night. Ms Reed and Mr Farnhill, who live close to one another in Queanbeyan, were getting into a taxi when Mr Plumb asked Mr Farnhill if he could stay at his place as he could not return to the hotel as Mr Plumb had planned to share a bed with Ms Kelly. Mr Farnhill agreed. The three, together with a friend of Ms Reed, who was staying with her that night, and who had not been with the group throughout the evening, all shared a taxi home. Later that morning, Mr Farnhill dropped Mr Plumb back at the Apartments on his way to work.

[10] On Saturday morning, 13 December 2014, Dr Jakeman received a call from a student whistleblower who advised him that Mr Farnhill had on Thursday night been out socialising with students and, at the end of the night, had taken one of the students home. Dr Jakeman immediately contacted Mr Pike who in turn phoned Mr Farnhill to inform him of the allegation and to seek his comments. During the conversation, Mr Pike advised Mr Farnhill that an allegation had been received claiming that on the evening of 11 December 2014 he had taken a student back to his residence. Mr Farnhill confirmed the allegation as true. Mr Pike then asked Mr Farnhill about the circumstances and why he had done so, to which Mr Farnhill replied “I don’t know”. The telephone conversation concluded with Mr Pike advising Mr Farnhill that this was a very serious situation, that he should have a think about the events and that the two would meet on Monday morning to discuss the matter further.

[11] Mr Pike subsequently informed Dr Jakeman of his conversation with Mr Farnhill. On Sunday afternoon, Mr Pike sent Mr Farnhill an invitation to a meeting, to take place at 8.30 am on Monday. Mr Farnhill, on the other hand, contacted Ms Reed to advise her of Mr Pike’s phone call and to see what she had heard. Mr Farnhill also contacted Ms Berry.

[12] Mr Farnhill accepted Mr Pike’s invitation after arriving at work on 15 December 2014, with the two meeting at 8.30 am. Mr Pike opened the meeting by explaining that the purpose of the meeting was to discuss the allegations. Mr Pike put the allegations to Mr Farnhill who again confirmed them to be true. Mr Pike then asked Mr Farnhill to explain if there were any circumstances to explain his behaviour to which Mr Farnhill replied that it was a mistake but offered nothing beyond that by way of explanation. Mr Pike then described Mr Farnhill’s actions as unacceptable behaviour and that in the circumstances there was little prospect that his ongoing employment would be viable. As Mr Farnhill was visibly distressed by the situation, Mr Pike suggested that he take a walk and get out of the office environment for a while to gather his thoughts and think about anything further he wished to raise in respect of the matter. Mr Farnhill went to a nearby car park where he telephoned Ms Reed and Ms Berry who both came to see him. He left after collecting some possessions and returning his credit card and keys to Mr Pike via Ms Berry. Mr Farnhill did not return to ABA.

[13] After leaving the ABA campus in Canberra, Mr Farnhill contacted his mother and some friends and was advised to see his doctor as they were concerned about his wellbeing, given that he suffered from depression. Mr Farnhill visited his doctor that afternoon and was issued with a medical certificated stating that he was “unfit for work for his normal work” for the period 15 to 19 December 2014 1. That medical certificate was not provided to ABA.

[14] At 1.46 pm on 15 December 2014 Mr Farnhill sent Mr Pike an email which read:

“Hi Andrew,

Just wanted to send a quick email to apologise for leaving today.

My intention was to stick around and continue our discussion, however after taking some time out of the office to try and get myself, I found myself in a fairly unstable mental state so thought it best for me to leave and head home to sort out some form of support.

For the time being, I thought it best to hand over my keys and credit card so if past these on to Hannah Berry to give to you.

I will be in contact later in the week.” 2

[15] Mr Pike responded to that email at 6.18pm the same day stating:

“Thanks. I understand. Look after yourself and give me a call when you’re ready.” 3

[16] In subsequent developments, Mr Farnhill sent Mr Pike an email at 11.53pm requesting a copy of his most recent employment contract. Mr Pike responded at 1.19am on 16 December providing the copy as requested 4.

[17] At 9.12 am on 16 December 2014, Mr Pike emailed Mr Farnhill a letter terminating his employment with immediate effect. The email stated, among other things, that “I was planning to be able to finish off our discussion yesterday and provide it to you however this was not possible.” The termination letter read:

“I’m writing to you about the termination of your employment with Australian Business Academy Pty Ltd (ABA) effective 15 December 2014.

I refer to our telephone conversation on 13 December 2014 and our subsequent meeting on 15 December 2014. During the call and subsequent meeting we discussed an incident that occurred on the evening of 11 December 2014 or early morning of 12 December 2014 and which was reported by a student. Specifically, you created a situation that raised reasonable suspicion that the standards applying to relationships between education industry professionals and students have been breached by having:

● Engaged socially with the student and a private function outside of normal business hours that was unrelated to their education, and
● Escorted a student to your private residence for a purpose that was unrelated to their education or safety.

As discussed at these times, you confirmed that the allegations were true and that what happened was inappropriate. I have asked if you could explain the context or for reasons to justify your behaviour and you did not provide any, stating that it was a “stupid mistake”. Indeed, your conduct has caused a serious and imminent risk to the reputation, viability or profitability of ABA’s business.

We consider that your actions constitute gross misconduct warranting summary dismissal.

You will be paid your notice period, any accrued entitlements and outstanding remuneration, including superannuation, up to and including the date of this letter.”

[18] At 12:38 pm on 16 December 2014 Mr Farnhill sent an email 5 to Mr Pike which stated, inter alia:

“My understanding from our conversation yesterday was that you were requesting my resignation, as opposed to be being terminated. As you can imagine, this has now come as quite a shock to have received this letter of termination and to have not been given the opportunity to complete our conversation from yesterday in regards to this situation, even after my email stating that I would be in contact to finalise our discussion.”

[19] At 1:46 pm on 16 December 2014, Mr Farnhill emailed Mr Pike tendering his resignation. The email included the following:

“I regret to inform you that, as per our discussions yesterday, I will be resigning from my position as the Training Manager for the Australian Business Academy due to personal reasons.

As per clause 11.2 in my contract, I’ll be giving one months notice of my resignation which will make my end date 15th January 2015. As per our discussion yesterday, I will not be required to work my notice period, and this will be paid out in lieu of me working the notice period.”

[20] Mr Pike responded at 2.19 pm shortly afterwards in the following terms:

“Thank you for your email. ABA accepts your resignation on the terms as stated below and this agreement supersedes any previous correspondence in relation to your separation from ABA.”

[21] As previously noted, at the hearing of this matter ABA did not press its contention that Mr Farnhill had resigned from his employment.

[22] Mr Farnhill subsequently lodged his unfair dismissal application with the Commission on 24 December 2014.

The Applicant’s case

[23] In his application, Mr Farnhill contended that his dismissal was unfair for several reasons including that his meeting with Mr Plumb on 11 December 2014 was opportunistic in that they just happened to be at the same venue, Mr Plumb had completed his course and was awaiting graduation, the dismissal related to both Mr Farnhill’s and Mr Plumb’s sexuality and the complaint was made maliciously and not disclosed to Mr Farnhill.

[24] Key aspects of Mr Farnhill’s submissions were that:

the reasons cited for his termination do not appear in his employment contract and specifically do not appear under the reasons for summary termination, adding that policies are not contractual in nature;

the conduct of Mr Pike was manifestly procedurally unfair, particularly as Dr Jakeman and Mr Pike had preliminarily determined to dismiss Mr Farnhill following Mr Pike’s phone conversation with Mr Farnhill on 13 December 2014;

Mr Farnhill had never been provided with evidence of the person who made the so-called allegations against him;

the original allegations as put to Mr Farnhill did not canvas the alleged policy transgression in the form relied upon in the termination letter, with that transgression never put to him in that form prior to his termination or before these proceedings commenced;

while it was alleged that the so-called whistleblower saw Mr Farnhill take Mr Plumb home, it was abundantly clear from the evidence that there were in fact no other persons present when Mr Plumb asked to stay at Mr Farnhill’s residence;

no allegations were ever put to Mr Farnhill in writing;

Dr Jakeman and Ms Berry were not witnesses of truth, with Mr Farnhill disputing ABA’s contention that no ABA employee was aware that Ms Reed had been out socialising with Mr Farnhill on 11 December 2014 until Ms Reed provided her witness statement in February 2015;

Mr Plumb could not be definitively classified as a student;

Mr Plumb’s evidence was that he asked Mr Farnhill if he could stay the night at his residence because his safety at risk due to his diabetic condition, his intoxication and the unavailability of his planned accommodation;

ABA conceded that staff socialising with students did not warrant summary dismissal and that no employee had ever been sacked for it;

at the meeting of 15 December 2014 it had been put to Mr Farnhill that he faced summary dismissal if he did not resign immediately;

ABA’s concern as to the potential for adverse publicity for the business was an entirely irrational fear, with no evidence provided as to any adverse publicity having occurred or of any regulator having been informed of the incident;

ABA was obliged to conduct a thorough and complete investigation before determining any penalty, adding that it had failed to do so; and

the discussions between Mr Farnhill and Mr Pike on 13 and 15 December 2014 totalled between 11 and 22 minutes, adding that in those circumstances it was not surprising that all the facts had not been canvassed.

[25] Mr Farnhill relied upon the decision in Rose v Telstra Corporation Limited 6(Rose) which concluded that a valid reason for dismissal can exist as a consequence of an employee’s out of hours conduct in circumstances where the conduct is likely to cause damage to the relationship between the employer and the employee, damage the employer’s interests or is incompatible with the employee’s duty as an employee. Relying on the decision in Rose, Mr Farnhill submitted that absent such considerations an employer has no right to control or regulate an employee’s out of hours conduct.

[26] As to remedy, Mr Farnhill submitted that he wished to be reinstated and receive both compensation and an apology.

[27] In his witness statement 7 Mr Farnhill set out the series of events leading to his dismissal in terms consistent with those outlined above. Key aspects of Mr Farnhill’s witness statement were that:

he received a phone call late on the morning of 13 December 2014 from Mr Pike who informed him that Dr Jakeman had received a whistleblower complaint stating that both he and Ms Reed had been out drinking on the Thursday night prior and that a student had come back to his house;

he confirmed that he and Ms Reed had been out drinking and that a former student had “crashed the night at my house”;

Mr Pike responded that this was not good and that they would need to meet on Monday morning to discuss the matter further;

at their meeting on Monday, Mr Pike said “you haven’t left me with many options”; and

Mr Pike asked him at that meeting if he had an explanation, to which he responded that he could see what it looked like and that it was a stupid mistake to allow a former student to stay at his house.

[28] Under cross examination Mr Farnhill attested, among other things, that:

at the meeting of 15 December 2014 the discussion was along the lines of that ABA would be requesting his resignation 8;

he was not provided with any documents in any meeting prior to 15 December 2014 particularising the allegations against him 9;
his discussions with Mr Pike regarding the allegations were limited to a four minute telephone conversation on 13 December 2014 and a 10 minute conversation on 15 December 2014 10;

he was not advised in advance that ABA was intending to terminate his employment 11;
it was his understanding that he would have another opportunity to explain the situation before a final decision was made 12;
he had not been disciplined or performance managed whilst employed by ABA 13;
he no longer considered Mr Plumb to be a student on 11 December 2014 14;
he was not provided with any statements from anybody who was there on the night until after his termination 15;
he had not provided his medical certificate of 15 December 2015 to ABA 16;
there was a difference between a student’s graduation date and their teaching period, with Mr Plumb’s student enrolment form 17 indicating that his teaching start date and teaching end date were 3 February and 5 December 2014 respectively and that his graduation date was 16 December 201418;
he accepted that he had been given verbal advice of the allegations and that he responded to those allegations 19; and
he did state “I don’t know” when asked by Mr Pike on 13 December 2014 to explain his actions on the night of 11 December 2014 20.
The Respondent’s case

[29] ABA strongly denied any wrongdoing on its part and submitted that it was Mr Farnhill’s actions, together with his inability as a senior manager to uphold the company’s values and expected conduct, which led to his dismissal. ABA further contended that had Mr Farnhill acted properly and provided information when sought, the matter would not be before the Commission.
[30] Among other things, ABA contended that:
- Mr Farnhill knew before he went into town on 11 December 2014 that he would be meeting up with students as he had been advised of this by Ms Reed;
- Mr Farnhill, during his phone conversation with Mr Pike on 13 December 2014, had been provided with several opportunities to explain the context of his conduct but had failed to provide any valid justification for his actions;
- Mr Farnhill did not mention that he had any concern for the health or safety of Mr Plumb at any time prior to his dismissal, suggesting that Mr Farnhill’s position in this regard had been shaped post-dismissal;
- on 15 December 2014 Mr Farnhill was again asked to justify his actions and provide any mitigating circumstances, with none provided;
- while the meeting of 15 December 2014 ended due to Mr Farnhill’s emotional state, both he and Mr Pike agreed that the matter needed to be concluded;
- Mr Pike was expecting to receive Mr Farnhill’s resignation within 24 hours and when this did not occur Mr Pike dismissed Mr Farnhill;
- ABA processed Mr Farnhill’s dismissal as a resignation and paid four weeks’ pay in lieu of notice;
- based on the National Vocational Education and Training Regulator Act 2011 (NVETR Act), the Standards For Registered Training Organisations and VET Regulators (the Standards) and the Australian Qualifications Framework (AQF) there was no scope for Mr Plumb to be deemed anything other than a student at the time of the incident on 11 December 2014;
- ABA’s expectations of Mr Farnhill as a senior manager to lead by example and set the standard is reasonable and clearly documented in both company policies and his employment contract;
- ABA’s actions were not unduly harsh because the outcome was proportionate to the gravity of Mr Farnhill’s admitted serious misconduct and his senior position and influence within the company;
- had awareness of the incident of 11 December 2014 spread further it would have seriously risked the reputation, viability and/or profitability of ABA’s business, including carrying with it the prospect of ABA losing its license to operate under both the NVETR Act and the ACT’s working with vulnerable people legislation; and
- Ms Berry was not the whistleblower, adding that the whistleblower was a male student.
[31] In support of its submissions, ABA also relied upon the decision in Rose which it contended concluded that a valid reason for dismissal can exist as a consequence of an employee’s misconduct if there is a connection between the out of hours misconduct and the employment. ABA further submitted that the decision in Rose concluded that this occurs when the conduct is likely to cause damage to the relationship between the employer and the employee or damages the employer’s interests or is incompatible with the employee’s duty as an employee, adding that Mr Farnhill’s conduct meets at least two of these threshold requirements and that as such his employment was validly terminated.
[32] ABA made no submissions on the issue of remedy.
[33] Dr Jakeman set out the background to Mr Farnhill’s dismissal in his witness statement 21 in terms consistent with the Background set out above. Key aspects of Dr Jakeman’s witness statement were that:
- he received a whistleblower complaint around 9:30 am on Saturday, 13 December 2014 which alleged that Mr Farnhill had been out drinking on 11 December 2014 and had met up with students who were also out drinking and that at the end of the night Mr Farnhill had taken one of the students back to his residence;
- on 15 December 2014, the incident was also reported to him by Ms Berry who noted that Ms Reed seemed particularly distressed;
- he subsequently arranged for Mrs Jakeman to reach out and ask Ms Reed if she would like to catch up and talk things through; and
- while he was aware that Mr Pike had dismissed Mr Farnhill, he had not been involved in this process.
[34] In his witness statement 22, Mr Pike set out the series of events leading to Mr Farnhill’s dismissal in terms similar to those outlined above. Key aspects of Mr Pike’s witness statement were that:
- when he spoke with Mr Farnhill on the morning of 13 December 2014 he advised him of the allegation that he had been out with students and that he gone home with one of them at the end of the night;
- he asked Mr Farnhill if there was any truth to the allegation, with Mr Farnhill confirming that it was correct;
- he then asked Mr Farnhill if there was any reason why he would take a student home in an effort to understand if there were circumstances which may have triggered his actions, to which Mr Farnhill replied that there was no reason;
- he then asked Mr Farnhill why he did it, with the reply being “I don’t know”;
- he indicated to Mr Farnhill that this was a very serious situation, suggested to him that he carefully think about the events and indicated that they would need to have a further discussion first thing on Monday morning;
- he commenced the meeting with Mr Farnhill on 15 December 2014 by explaining that the purpose of the meeting was to discuss the allegations;
- he again asked Mr Farnhill whether it was true that he had been socialising with students on the night of 11 December 2014 and that he had taken a student home, with Mr Farnhill again confirming the allegations to be correct;
- he then asked Mr Farnhill to explain if there was any context or circumstances that could explain his behaviour, with Mr Farnhill explaining that he had no reason and that he had made a big mistake;
- he advised Mr Farnhill that taking a student home was unacceptable behaviour and in breach of the expectations of his role, adding that he did not imply any allegation of sexual impropriety;
- Mr Farnhill was offered several opportunities to explain his actions and that, in circumstances where Mr Farnhill had readily admitted that he had made a mistake and did not provide any justification, he considered Mr Farnhill’s actions to be a serious breach of policy and his employment contract;
- Mr Farnhill’s actions created a very real risk of injury to ABA’s reputation and interests;
- he advised Mr Farnhill that after listening to his statements and given the situation as he described it, he was left with limited options and separation was inevitable;
- as Mr Farnhill appeared distressed at that stage he suggested to him that he take a walk and get out of the office for a short time to gather his thoughts and think about whether there was anything further he would like to raise in relation to the matter or that he considered ABA should be aware of or take into consideration; and
- after speaking further with Dr Jakeman on 16 December 2014 and noting that Mr Farnhill had not returned the previous day, he advised Dr Jakeman that he was going to dismiss Mr Farnhill.
[35] Ms Berry deposed in her witness statement 23, inter alia, that:
- on 12 December 2014 Ms Reed had mentioned to her that she and Mr Farnhill had met some students for drinks the previous night and that Mr Farnhill had taken one of the students, who she identified as Mr Plumb, home with him;
- she commented something to the effect that it was not a good situation as Mr Plumb was a student;
- Ms Reed asked her not to mention anything to Mr Farnhill;
- on 13 December 2014 she returned a call from Mr Farnhill who mentioned the call he had received from Mr Pike, expressed concern that he may have lost his job, confirmed that he had taken a student home with him after drinks,indicated that he was disappointed in himself as he knew it was the wrong thing to do and acknowledged that he had made a mistake;
- Mr Farnhill contacted her again after his meeting with Mr Pike on 15 December 2014;
- when she met Mr Farnhill in the car park shortly after he contacted her he was visibly distraught;
- Mr Farnhill said at that time that Mr Pike had indicated in their meeting that he had breached company policy and had given him until the end of the today to decide if he would like to resign;
- she assisted Mr Farnhill clear some things from his desk and his car as he wanted to go home and think; and
- during her four and a half years of employment with CGL she had never witnessed any forms of sexual discrimination.
[36] Mr Smith deposed in his witness statement 24 that, when he was informed that Mr Farnhill had been seen by leaving a nightclub in the company of another student and that the student had stayed with Mr Farnhill, he thought dismissal was the appropriate response. Mr Smith also stated that the text messages he exchanged with Mr Farnhill following his dismissal gave him the impression that Mr Farnhill understood that he made a mistake and why he had been dismissed.
[37] In her witness statement 25 Ms Crossley stated that she only knew a small amount of detail regarding Mr Farnhill’s “departure” and that she had not sought further information about the circumstances involved. Ms Crossley further stated that “The culture at ABA has always been a very friendly one with a positive family like atmosphere. Diversity has always been embraced with both staff and students.”
[38] Mrs Jakeman attested in her witness statement 26 that Dr Jakeman had advised her on 15 December 2014 that Ms Reed was showing signs of distress in the workplace and that she offered to contact Ms Reed and ask if she would like to meet with her. Mrs Jakeman further attested that she met with Ms Reed late that afternoon. Beyond this, Mrs Jakeman stated that:
- at their meeting she allowed Ms Reed to discuss her feelings in relation to the incident that had caused issue with Mr Farnhill’s employment with ABA;
- she did not recall using the words “night of passion” in her conversation with Ms Reed; and
- that she indicated to Ms Reed that the matter was serious because the student involved had not yet graduated from ABA.
[39] Ms Butcher stated in her witness statement 27 that she had not been involved in or provided any advice regarding Mr Farnhill’s dismissal. Ms Butcher also attested that the procedures ABA has in place for dealing with complaints and misconduct are set out in the ABA Workplace Behaviours Team Handbook 2013 and that in Mr Farnhill’s case an investigation was not required because he had confirmed his conduct as reported to Dr Jakeman.
[40] Key aspects of the oral evidence of ABA’s witnesses are set out below (as appropriate).
- ABA did not contend that Mr Farnhill had interfered with student records 28;
- ABA had not undertaken an investigation as Mr Farnhill had admitted to the alleged conduct and also did not go more widely as it was trying to keep the incident discreet to protect both Mr Farnhill’s and ABA’s reputation 29;
- he did not know how the whistleblower knew about the incident given that he was not one of the group that went out on 11 December 2014 but he just took the allegation as presented and as a matter that required investigation, prompting him to call Mr Pike and find out whether the allegation was true 30;
- Mr Plumb had completed all of his academic requirements by 10 December 2014 31;
- ABA was not aware that Ms Reed had been part of the group that went out on 11 December 2104 until she provided her witness statement in February 2015 32;
- even though Ms Reed had been socialising with the students, Ms Reed had been treated differently to Mr Farnhill for a number of reasons, including that she was not as senior as Mr Farnhill, she was not responsible for enforcing ABA policies and ensuring that everyone complied with them and she did not take a student home 33;
- he and Mr Pike had decided on 13 December 2014 that Mr Farnhill was going to be dismissed on 15 December 2014 unless he could justify why he should not be, with the purpose of the meeting on 15 December 2014 to put the allegations to Mr Farnhill and seek his response 34;
- the onus was on Mr Farnhill to justify his decisions and actions 35; and
- ABA had previously terminated another staff member for inappropriately inviting a female student out for coffee, with the student feeling that she was being pressured into a relationship 36.
Mr Pike
- At the meeting of 15 December 2014, after Mr Farnhill failed to provide any mitigating circumstances for his behaviour, he described the incident as a very serious matter which was in breach of ABA’s policies and Mr Farnhill’s employment contract 37;
- as a result of that meeting, Mr Farnhill would have been aware that he had a face saving option (i.e. resignation) and that if he did not take it that he would be dismissed 38;
- he considered Mr Plumb to be an ABA student at the time of the incident based on his reading of the NVETR Act and the Standards 39;
- as ABA’s Training Manager, Mr Farnhill was responsible for the awareness and enforcement of ABA policies and would therefore have been aware of the ABA’s policy regarding staff and student relationships 40;
- Mr Farnhill’s seniority was a consideration in concluding that his actions constituted serious misconduct 41;
- he did not undertake further investigation into the matter as, in circumstances where the allegations had been put to Mr Farnhill, who confirmed the that they were true and did not offer any reason at all for his actions, there was very little extra to investigate 42;
- he did not seek advice from CGL’s Human Resources Manager as in circumstances where ABA had a policy and Mr Farnhill was aware of the policy he considered that there was not much to consult CGL on 43;
- he had not put the allegations to Mr Farnhill in writing as they had been confirmed with him verbally 44;
- he had not determined prior to the meeting of 15 December 2014 that Mr Farnhill would be dismissed following that meeting 45;
- he had uttered words to the effect “You’ve left me with little choice” at the meeting of 15 December 2014 46;
- he had not terminated anybody for engaging socially with a student outside of normal business hours for reasons that were unrelated to their education 47;
- he stood by his decision to dismiss Mr Farnhill and would do it again in the same circumstances 48;
  he had only discussed the matter with Dr Jakeman 49; and
- he did not consider that there was any ambiguity as to whether or not Mr Plumb was a student, adding that ABA was required to report statistics to the Department of Education, describing Mr Plumb as a student from 20 per cent of the way through his course until after his graduation, and that Mr Farnhill would have been aware of this requirement 50.
Ms Berry

She could not recall Mr Farnhill saying in their conversation of 13 December 2014 why he had taken Mr Plumb home but that he did say that he thought he had made a mistake 51;

she was not sure if she made it clear when she spoke with Dr Jakeman on the morning of 15 December 2014 that both Mr Farnhill and Ms Reed had been out on 11 December 2014 52; and
she disagreed that she was a direct beneficiary of Mr Farnhill’s termination 53.

Mr Smith

In his view a person is a student from enrolment to graduation, that this is the basis on which ABA reports its student statistics to government and that Mr Farnhill would have been aware of this 54;

it was graduation that defined whether or not somebody was a student 55; and
he did not consider Mr Farnhill’s dismissal harsh and would have done the same thing 56.

Mrs Jakeman

She did not report back to ABA regarding her conversation with Ms Reed as the conversation was confidential 57.

Ms Butcher

ABA has a set of policies and procedures for managing a termination or an issue such as this one 58;

she disagreed that ABA’s policies were not followed in this case 59;
her understanding was that ABA had not undertaken a formal complaint investigation because Mr Farnhill had admitted to his misconduct, so there would have been no need for an investigation 60;
while ABA’s policies may not have been followed dot point by dot point in this case because it was not appropriate, the principles and the practices embodied in those policies were followed in this case 61;
ABA’s policies strongly suggest that socialising with students could be a sackable offence 62; and
she was satisfied that the process followed by ABA in this case was best practice, with the only gap being that Dr Jakeman did not take notes of his conversations of 13 December 2014 63.

Ms Reed’s evidence

[41] In her witness statement 64 Ms Reed set out the series of events on the evening of 11 December 2014 consistent with the background above. Beyond that, Ms Reed deposed that:

on the morning of 12 December 2014 she informed Ms Berry that Mr Plumb had gone home with Mr Farnhill the previous night;

Ms Berry replied that “the situation was not good” and then changed the subject;

on the afternoon of 15 December 2014 she met with Mrs Jakeman to talk through the situation as she was very upset with what had happened;

Mrs Jakeman had said, among other things, that if Mr Farnhill had waited one week for his “night of passion” then there would have not been an issue; and

at no stage did she consider that any of the group who went out on 11 December 2014 was so intoxicated that they were unaware of what they were doing or what was happening around them.

[42] Ms Reed’s oral evidence included that:

she had informed Mr Farnhill on 11 December 2014 that she was going to meet Ms Kelly and that he had known of this from the time that she arrived at Mr Farnhill’s residence earlier that evening 65;

Ms Kelly had met someone at the Cube Nightclub and decided to go home more than 15-20 minutes after one of the group had gone home with her husband and the remainder of the group had walked two other members of the group back to the Waldorf Apartments 66;
she was not sure why Mr Plumb was in the taxi when what was left of the group decided to call it a night and go home 67;
while she was still employed by ABA, she had received a formal warning after finalising her witness statement on 10 February 2015 68;
she considered that ABA was aware that she had also been out with Mr Farnhill on 11 December 2014 prior to her making her statement as she had told Ms Berry, though she later stated that that she was not aware whether Ms Berry had communicated that fact to anybody else at ABA 69;
she was junior to Mr Farnhill at ABA and did not take a student home on 11 December 2014 70; and <
in her conversation with Mrs Jakeman on 15 December 2014, the latter indicated that ABA was trying to keep details of the incident of 11 December 2014 discreet 71.

Mr Plumb’s evidence

[43] Mr Plumb deposed in his witness statement 72 that he and four classmates had arranged to go out on 11 December 2014 to celebrate finishing their studies at ABA and had arranged accommodation in the city close to the nightlife area. Mr Plumb further deposed that:

as he and his friends had finished their studies they no longer regarded themselves as students and therefore had no hesitations or concerns about approaching ABA staff when they saw them during the evening;

after unrelated events occurred with his friends leaving the club venue early, he was left without access to the motel at which point he asked Mr Farnhill if he would accommodate him for the evening as he was “stranded”; and

he did not, nor did he have any intention of making a complaint about Mr Farnhill’s actions on the evening, adding that he was extremely grateful that Mr Farnhill assisted him at a time of the need.

[44] Key aspects of Mr Plumb’s oral evidence were that:

he did not mention that he was a diabetic in his witness statement as he did not think it was relevant to bring up personal health issues 73;

while he was so drunk that he could barely speak on 11 December 2014, he made a conscious decision to go home with Mr Farnhill as he was the only person that was around that he knew would help him, who knew of his diabetes and who he trusted 74;
he met up with Mr Farnhill at the Uni Pub, the first of the venues frequented by the group that night, and had not pre-arranged to meet Mr Farnhill 75;
he learnt that someone had taken his sleeping place at the Waldorf Apartments when he asked one of the student members of the group as she went to leave in a taxi to go home where Ms Kelly was and she answered that “she took that bloke home” 76;
at the end of the night he did not have a key to the hotel, his mobile phone was out of battery and that as a result he was stranded 77; and
he did not state in his witness statement that he went home with Mr Farnhill because he felt unsafe as he had not previously written a witness statement and did not know what to write 78.

The statutory framework

[45] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Mr Farnhill is a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which read as follows:

“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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

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.”

[46] As the jurisdictional objection originally raised by the ABA was not pressed, there is no dispute that the Mr Farnhill was dismissed, so s.385(a) of the Act is satisfied. Mr Farnhill contends that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. ABA is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether the Mr Farnhill was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).

Was the dismissal harsh, unjust or unreasonable?

[47] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will address each of those criteria separately.

(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)

[48] In Rode v Burwood Mitsubishi 79(Rode’s Case) a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd80. The following is an extract from the Full Bench’s decision in Rode’s Case.

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

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

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

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

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

[49] The issue of whether there was a valid reason for dismissal in circumstances where the dismissal relates to the conduct of an employee was canvassed by a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd (King’s Case) 81. In its decision in King’s Case the Full Bench, drawing on Moore J’s comments in Edwards v Guidice82, stated:

“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[50] In this case it is not disputed that the alleged conduct occurred, so it is not necessary to determine that issue as per King’s Case.

[51] A threshold issue in determining whether or not Mr Farnhill’s conduct on 11 December 2014 constituted a valid reason for his dismissal is whether Mr Plumb was a student at the time of the incident. Mr Farnhill contends that Mr Plumb was no longer a student on 11 December 2014 as he had completed all of his academic coursework and was scheduled to graduate on 16 December 2014. As noted above, ABA disputed this based on the definitions of student, learner and graduate in the NVETR Act, the Standards and the AQF.

[52] Specifically, s.3 of the NVETR Act defines a Vocational Education and Training (VET) student as “a student enrolled in all or part of a VET course in a registered training organisation.” 83 Further, the Standards define a learner as “a person being trained and/or assessed by the RTO [Registered Training Organisation] for the purpose of issuing AQF certification documentation.”84 Finally, the AQF defines a graduate as “a person who has been awarded a qualification by an authorised issuing organisation”85 These definitions are reflected in the ABA’s Learner Handbook 2014 which states:

“Diplomas and Advanced to Diplomas will be conferred on learners meeting the conditions of that particular qualification. The date of confirmation will be the Graduation Day. A graduation ceremony will be held in each cap on Campus location each year. Learners not meeting the requirement of the Award will not graduate and will not participate in the Graduation Ceremony.” 86

[53] While the above definitions and documents do not explicitly state that a person enrolled in a course of study remains a student until he or she graduates, when considered with the basis on which ABA reports student statistics to government as outlined in Mr Pike’s oral evidence they support a finding that a student continues to be a student until he or she graduates from their particular course of study.

[54] A second key issue in this matter is whether Mr Farnhill’s actions in this case were inconsistent with ABA’s policies and/or his employment contract. ABA’s Team Handbook Provides guidance to ABA staff on a number of factors, including maintaining a professional relationship with students. Among other things the team handbook states:

“A professional relationship may be compromised if we:

● Attend parties or socialise with students
● Invite a student or students to our home, particularly if no-one else is present” 87

[55] Further, ABA’s Workplace Behaviours Employee Handbook V2 defines serious misconduct to include:

“A wilful and serious breach of:

● the Australian Business Academy ethical behaviour policy
● the Australian Business Academy code of conduct, statutes or policies” 88

[56] Finally, Mr Farnhill’s employment contract sets out at clause 1.7 his duties and responsibilities. These include that Mr Farnhill will “not intentionally do anything that is maybe harmful to the Company” and “report to the Company promptly … all information and explanations as required in connection with matters relating to your employment or the business of the Company.” Clause 1.8 of the contract deals with the issue of company policies and states that “You must be familiar with and observe the Company’s policies as varied from time to time.” Clause 11.3 of the contract deals with the issue of summary termination and states:

“The Company may terminate your employment immediately by giving written notice to you and without being required to provide any compensation or payment in lieu of notice if you:

a) Engage in serious or gross misconduct;

b) …

d) Engage in any conduct which, in the reasonable opinion of the Company, might tend to injure the reputation or business of the Company; …” (Emphasis not added)

[57] The above extracts support a finding that Mr Farnhill’s conduct was not only inconsistent with ABA’s policies, particularly as set out in the ABA Team Handbook regarding the importance of maintaining a professional relationship between ABA staff and students, but also with the terms of his employment contract which required Mr Farnhill to comply with ABA policies and not put at risk ABA’s “reputation or business”. Given the importance generally attached to educational bodies maintaining a professional relationship with students, I consider that crossing the line in that regard is likely to carry with it the risk of reputational damage and diminished community confidence in the relevant educational institution which may in turn impact on the particular institution’s business. ABA’s concerns in this case were therefore reasonably based in the absence of Mr Farnhill providing prior to his dismissal any compelling explanation for allowing Mr Plumb to stay at his residence on the night of 11 December 2014. Further, I consider that Mr Farnhill’s actions fall within the definition of serious misconduct as set out in ABA’s Workplace Behaviours Employee Handbook.

[58] As previously noted, both parties relied on the decision in Rose which concluded that a valid reason for dismissal can exist as a consequence of an employee’s out of hours conduct in circumstances where the conduct is likely to cause damage to the relationship between the employer and the employee, damage the employer’s interests or is incompatible with the employee’s duty as an employee. In the preceding analysis I have concluded that Mr Farnhill’s actions were inconsistent with both ABA’s policies and the terms of his employment contract and that ABA’s concerns about the risk to its reputation and business were reasonably based in the absence of Mr Farnhill providing prior to his dismissal any compelling explanation for his actions on 11 December 2014. Beyond this, it is also arguable that Mr Farnhill’s actions would have also damaged the relationship between him and ABA. As such, I consider that at least two, if not all, of the circumstances outlined in Rose in which an employee’s out of hours conduct may provide a valid reason for dismissal exist in this case.

[59] In Mr Michael Brambleby v Australian Postal Corporation T/A Australia Post 89 (Brambleby) a Full Bench of the Commission observed that “It is not unreasonable to expect higher standards of supervisory employees particularly in this case having regard to Mr Brambleby’s awareness of the policies in place …” That observation is particularly apt in this case given Mr Farnhill’s seniority, his responsibility for enforcing ABA policies and ensuring that everyone complied with them and the need for him to led by example.

[60] One of the most intriguing aspects of this case is why Mr Farnhill, when presented with the opportunity on 13 and 15 December 2014, failed to offer any explanation for his actions on 11 December 2014. Further, and significantly in my view, Mr Farnhill’s application makes no explicit mention of Mr Plumb, nor does it mention Mr Farnhill’s concerns for his safety given his diabetic condition, inebriation and lack of a place to stay. This gives some weight to ABA’s submission that this explanation was shaped post-dismissal. While I am unable to definitively conclude that this is the case based on the material before the Commission, I concur with ABA’s submission that had Mr Farnhill provided such information when sought, the matter would not have come before the Commission.

[61] What flows from the absence of any explanation by Mr Farnhill is that at the time ABA made the decision to terminate his employment, there was no material before it which provided an explanation of Mr Farnhill’s actions. To the contrary, Mr Farnhill’s responses conceded that his actions were a mistake. Mr Farnhill’s submission that there was no valid reason for his dismissal given his contention that Mr Plumb’s safety was the reason that he agreed to allow him to stay at his residence cannot be relied upon in circumstances where he did not raise it with ABA until after his unfair dismissal application had been lodged with the Commission. Essentially Mr Farnhill now argues that ABA’s decision to dismiss him was wrong because it did not take into account a factor which he had not been raised with ABA. Such an argument is untenable in my view.

[62] I note also that ABA had a very high regard for Mr Farnhill and based on the evidence of Mr Pike in particular was hoping that Mr Farnhill would come up with an acceptable explanation for his actions so that it would not have to dismiss him.

[63] Mr Farnhill contended in his submissions that his termination was disproportionate to the gravity of his offence. However, given the abovementioned importance attached to educational staff maintaining a professional relationship with students and drawing on the decision in Brambleby, I do not consider this to be the case, particularly in the absence of Mr Farnhill offering any compelling explanation for his actions prior to his dismissal.

[64] Finally, I observe there are several inconsistencies between the evidence of Mr Farnhill, Ms Reed and Mr Plumb. For instance, Ms Reed attested that Mr Farnhill was aware that they were to meet Ms Kelly on the evening of 11 December 2014, whereas Mr Farnhill attested that he was not aware of this. I prefer Ms Reed’s evidence in this regard as it is somewhat implausible that she would not have given a reason for going to the Waldorf Apartments when arriving in Canberra late on 11 December 2014. Further, Mr Plumb’s oral evidence was that he became aware that Ms Kelly had gone back to the Waldorf Apartments with a male friend when one of the group was going home in a taxi earlier in the evening, whereas Ms Reed’s evidence was that Ms Kelly only went home with her male friend sometime after the last four of the group (i.e. Ms Kelly, Mr Farnhill, Mr Plumb and herself) had returned to the Cube Nightclub. Mr Plumb also attested that the group of students met up with Mr Farnhill at the Uni Pub, whereas both Mr Farnhill and Ms Reed mentioned that they joined the group at the Apartments. In my view, these inconsistencies raise doubts about the reliability of parts of Mr Plumb’s evidence,as well as aspects of Mr Farnhill’s evidence.

[65] Taking into account all of the above, I consider that there was a valid reason for Mr Farnhill’s dismissal. Drawing on the language of the decision in Rode’s Case, I am satisfied that the reason for Mr Farnhill’s termination is defensible or justifiable on an objective analysis of the relevant facts and was not “capricious, fanciful, spiteful or prejudiced.”

(a) Whether the person was notified of that reason

[66] Mr Farnhill contended that ABA only put the accusations to him orally and that crucially it failed to cite the prohibition relied upon in its entirety, adding that the first time this was done was in the letter of termination.

[67] Mr Pike’s oral evidence was that at the meeting of 15 December 2014, after Mr Farnhill failed to provide any mitigating circumstances, he described the incident as a very serious matter which was in breach of ABA’s policies and Mr Farnhill’s employment contract. Mr Pike’s evidence in this regard was corroborated by Ms Berry in her witness statement. Mr Pike further attested that as a result of that meeting, Mr Farnhill would have been aware that he had a face saving option (i.e. resignation) and that if he did not take it that he would be dismissed.

[68] While it is not disputed that nothing was put to Mr Farnhill in writing prior to his termination, Mr Farnhill’s acknowledgement that he had done the wrong thing points to an awareness that his actions were inconsistent with ABA’s policies. Further, I accept Mr Pike’s abovementioned evidence in this regard, particularly as it was corroborated by Ms Berry.

[69] Against that background, I am satisfied that Mr Farnhill was notified of the reason for his dismissal.

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

[70] Based on the material before the Commission, it is clear that the whistleblower allegations were put to Mr Farnhill by Mr Pike on both 13 and 15 December 2014 and that on both occasions Mr Farnhill was asked to explain his actions. I also note that Mr Farnhill was advised by Mr Pike on 13 December 2014 that they would meet on 15 December 2014 to further discuss the matter. In other words, Mr Farnhill, despite being shaken by Mr Pike’s telephone call of 13 December 2014, had all of Saturday afternoon and Sunday to prepare for his meeting with Mr Pike on 15 December 2014. If anything, this makes his failure to provide any reason for his actions even harder to comprehend, particularly given the reason he now seeks to rely upon for allowing Mr Plumb to stay at his residence.

[71] This supports a finding that Mr Farnhill was given an opportunity to respond to the allegations made against him.

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

[72] Mr Farnhill submitted that this factor was not an issue in this case.

[73] ABA submitted that Mr Farnhill had not been refused a support person, nor did he seek to have one involved.

[74] I therefore do not consider this factor to be a relevant consideration.

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

[75] It is not disputed that Mr Farnhill’s termination was not as a result of unsatisfactory performance. Accordingly, this factor is not a relevant consideration.

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

[76] Mr Farnhill did not directly address this factor in his submissions, other than contending that although Ms Butcher was employed in the role of Human Resources Manager, she had no role and gave no advice concerning Mr Farnhill’s dismissal.

[77] ABA submitted that at the time of Mr Farnhill’s dismissal it had 38 employees and that neither it nor its parent company, CGL, employed a dedicated human resources specialist at the time. Accordingly, ABA contended that its size was likely to have impacted on the procedures it followed in effecting Mr Farnhill’s dismissal. ABA further submitted that it considered the processes that it followed in this case were consistent with or exceeded standard practices for organisations of a similar size.

[78] The material before the Commission indicates that ABA has a range of well developed corporate policies, including human resource policies. In those circumstances, I consider this factor to be a neutral consideration.

(a) 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

[79] Mr Farnhill submitted that although Ms Butcher was employed in the role of Human Resources Manager, she had no role and gave no advice concerning Mr Farnhill’s dismissal.

[80] ABA submitted that Ms Butcher was not the Human Resources Manager for either CGL or ABA at the time of the dismissal and that neither organisation had such a role at that time. Against that background, ABA submitted that the absence of human resource management specialists may have possibly impacted on the procedures followed in effecting Mr Farnhill’s dismissal.

[81] Given the nature of the allegations against Mr Farnhill and based on the material before the Commission, a key consideration for ABA appears to have been either avoiding or minimising the potential fallout should news of the incident become public knowledge. This in part explains the speed with which it acted upon the whistleblower allegations. Also relevant is the undisputed fact that Mr Farnhill confirmed that the allegations were true. This does not support a finding that the absence of human resource management specialists impacted on the procedures followed in this case.

[82] Against that background, I consider this factor to be a neutral consideration.

(a) Any other matters that FWC considers relevant

[83] Mr Farnhill in his submissions contended, among other things, that he had been intimidated by ABA and that this had prevented him providing an effective response to the whistleblower allegations. Mr Farnhill also contended that ABA had “sprung” the termination on him after leading him to believe that its inquiries were continuing. Based on the material or the Commission, I am not satisfied that these contentions are made out. While it is clear that Mr Pike emphasised the seriousness of the matter in his discussions with Mr Farnhill, this does not in my view equate to intimidation. Further, it is clear that based on his discussions with Mr Pike that Mr Farnhill understood that his employment was at risk.

[84] Mr Farnhill further contended that he had been treated differently to Ms Reed. While this is clearly the case, given that Ms Reed did not take a student home and that she was not responsible for ensuring compliance with ABA policies, I consider the different sanctions applied to be entirely appropriate.

[85] Finally, Mr Farnhill highlighted that he had not received any warnings while employed by ABA. This is not disputed but needs to be seen against his relatively short period of employment with ABA, i.e. just under two years.

[86] In its submissions ABA raised a number of concerns about the reliability of Mr Farnhill’s evidence as a consideration which the Commission should take into account. I have dealt with that issue above.

[87] For the reasons outlined above, I do not consider any of the factors cited by Mr Farnhill or ABA to be relevant considerations.

Conclusion

[88] Drawing on the above analysis, I find that there was a valid reason for Mr Farnhill’s dismissal, that Mr Farnhill was notified of that reason and was given an opportunity to respond to the allegations regarding his conduct, and that there are no other relevant matters.

[89] Having considered all of the criteria in s.387 of the Act, I find that Mr Farnhill’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

J. Davey for the Applicant
M. Jakeman for the Respondent

Hearing details:

Canberra.

2015:

April 23

June 25 and 26.

1 Exhibit D2

2 Exhibit J9

3 Ibid

4 Exhibit D3

5 Exhibit D4

6 [1998] AIRC 1592

7 Exhibit D1

8 Transcript at PN253

9 Ibid at PN322

10 Ibid at PN326

11 Ibid at PN451

12 Ibid at PN458

13 Ibid at PN461 and PN474

14 Ibid at PN565

15 Ibid at PN598-604

16 Ibid at PN657-658

17 Exhibit J3

18 Transcript at PN756-765

19 Ibid at PN842-843

20 Ibid at PN910

21 Exhibit J5

22 Exhibit J8

23 Exhibit J15

24 Exhibit J16

25 Exhibit J17

26 Exhibit J18

27 Exhibit J19

28 Transcript at PN1605

29 Ibid at PN1633-1635

30 Ibid at PN1655 and PN1675

31 Ibid at PN1716

32 Ibid at PN1741

33 Ibid at PN1739 and PN1751

34 Ibid at PN1819-1821

35 Ibid at PN1826

36 Ibid at PN2020

37 Ibid at PN2540

38 Ibid at PN2547-2548

39 Ibid at PN2712-2723

40 Ibid at PN2753-2754

41 Ibid at PN2755-2756

42 Ibid at PN2760

43 Ibid at PN2768

44 Ibid at PN2830-2831

45 Ibid at PN2894

46 Ibid at PN2915

47 Ibid at PN3090-3093

48 Ibid at PN3137-3138

49 Ibid at PN3174

50 Ibid at PN3327 and PN3385-3390

51 Ibid at PN3423-3424

52 Ibid at PN3486-3488

53 Ibid at PN3561

54 Ibid at PN3728-3731

55 Ibid at PN3864

56 Ibid at PN3913-3915

57 Ibid at PN4137

58 Ibid at PN4225

59 Ibid at PN4388

60 Ibid at PN4458

61 Ibid at PN4479

62 Ibid at PN4487

63 Ibid at PN4587-4589

64 Exhibit D6

65 Transcript at PN1005-1010

66 Ibid at PN1119-1146

67 Ibid at PN1187

68 Ibid at PN1225-1230

69 Ibid at PN1433-1444

70 Ibid at PN1477-1480

71 Ibid at PN1491

72 Exhibit J6

73 Transcript at PN2167

74 Ibid at PN2201

75 Ibid at PN2332-2343

76 Ibid at PN2372

77 Ibid at PN2373-2376

78 Ibid at PN2447

79 Print R4471

80 (1995) 62 IR 371

81 Print S4213

82 (1999) 169 ALR 89 at 92 per Moore J

83 Exhibit J11

84 Exhibit J12 at page 51

85 Exhibit J14 at page 95

86 Exhibit J13 at page 12

87 Exhibit J20

88 Ibid at page 29

89 [2014] FWCFB 9000 at [89]

Printed by authority of the Commonwealth Government Printer

Brendan Farnhill v Australian Business Academy Pty Ltd

[2016] FWC 302

15 JANUARY 2016