Darrel Batterham v Dairy Farmers Limited T/A Dairy Farmers

[2011] FWA 1230

[2011] FWA 1230

FAIR WORK AUSTRALIA

DECISION

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

Darrel Batterham
v
Dairy Farmers Limited T/A Dairy Farmers
(U2010/6132)

Ronald Batterham
v
Dairy Farmers Limited T/A Dairy Farmers
(U2010/6134)

George Sharkawy
v
Dairy Farmers Limited T/A Dairy Farmers
(U2010/6136)

Nicholas Agius
v
Dairy Farmers Limited T/A Dairy Farmers
(U2010/6139)

Siegbert Kroegel
v
Dairy Farmers Limited T/A Dairy Farmers
(U2010/6143)

Kashif Usman
v
Dairy Farmers Limited T/A Dairy Farmers
(U2010/6150)

Natalie Husar
v
Dairy Farmers Limited T/A Dairy Farmers
(U2010/6153)

DEPUTY PRESIDENT SAMS SYDNEY, 29 MARCH 2011

Applications for unfair dismissal remedy - trafficking in inappropriate emails in the workplace - numerous breaches of Company policies - investigation - various levels of disciplinary action, including dismissals - denials of any involvement - denials of the extent of involvement - allegations of procedural unfairness - terminations of employment - whether there was a ‘culture’ in the workplace - conflicting evidence - whether dismissals harsh, unreasonable or unjust.

TABLE OF CONTENTS	PARAGRAPH
BACKGROUND	1
The Respondent’s Policies	6
Brief Chronology of Relevant Events	9
THE EVIDENCE	15
List of witnesses	15
Applicants’ evidence	128
Ms Natalie Husar	150
Mr George Sharkawy	164
Mr Kashif Usman	185
Mr Nicholas Agius	196
Mr Darrel Batterham	204
Mr Siegbert Kroegel	214
Mr Ronald (David) Batterham	223
SUBMISSIONS	240
For the applicants	241
For the respondent	254
In reply	262
CONSIDERATION	263
Trafficking in inappropriate emails in the workplace	263
The legislation and relevant principles	268
1. The failure of the respondent to provide adequate training on how to use and operate the Company’s email accounts	277
2. Rudimentary training on the respondent’s Code of Business Conduct	279
3. Other employees could access their email accounts as ‘passwords’ were commonly shared	283
4. The existing ‘culture’ at the workplace in which offensive material was regularly circulated by employees, including supervisors	288
5. Unequal treatment in comparison to other employees who had not been dismissed for the same conduct	289
6. The respondent’s inadequate and/or incomplete investigation of the allegations	291
7. Procedural unfairness at the disciplinary interviews	293
8. The real reason for the dismissals was to save around $300,000 in future redundancy entitlements	300
9. Mitigating factors such as unblemished records of service, age, length of service and difficulty in finding alternative employment	301
10. Further inappropriate emails discovered after dismissal	302
11. Other Findings on the Evidence	305
Ms Husar	306
Mr Sharkawy	310
Mr Usman	312
Mr Agius	313
Mr Kroegel	314
Mr Darrel Batterham	315
Mr Ronald (David) Batterham	316
Respondent’s Witnesses	319

BACKGROUND

[1] On or about 27 January 2010, 15 employees and six contractors engaged at the Wetherill Park site of Dairy Farmers Pty Ltd (‘the respondent’) either resigned or were dismissed from their employment as a consequence of an investigation conducted by the respondent into the receipt and/or storage and/or distribution of inappropriate materials, including allegedly pornographic material, over an extended period, on the respondent’s email system. Seven employees (‘the applicants’) have challenged their dismissals and have brought applications, pursuant to s 394 of the Fair Work Act 2009 (‘the Act’), claiming that their dismissals were ‘harsh, unreasonable and unjust’. Five of the applicants seek reinstatement and maximum compensation and two of the applicants seek maximum compensation only, as remedies for their alleged unfair dismissals.

[2] The seven applicants and their respective periods of service with the respondent are as follows:

Mr Darrel Batterham - 21 years

Mr Ronald (David) Batterham - 10 years

Mr George Sharkawy - 10 years

Mr Nicholas Agius - 5 years

Mr Siegbert Kroegel - 20 years

Mr Kashif Usman - 10 years

Ms Natalie Husar - 4 years

[3] Each of the applicants’ letters of dismissal were in relevantly similar terms as follows:

As you are aware, National Foods has been conducting an investigation into

allegations concerning the receipt, storage and distribution of pornographic and

offensive material by employees at the Wetherill Park site.

I refer to our meeting on 27 January attended by you and Peter Lane, your Union Official. At this meeting, you were provided with a list comprising the titles, dates and content type of pornographic and offensive material which was found in your email account. You were advised that the alleged conduct was in breach of Company policies, including the Diversity/EEO Policy, Code of Business Conduct and IT policies and asked to provide a response to the allegations.

Following the internal investigation into the misuse of the Company’s email and IT systems, and the discussion that took place with you on the 27 January 2010, we are satisfied that you have seriously breached Company Policies, and have been involved in the receiving, storing and distribution of inappropriate materials including pornography over an extended period of time.

The Company finds your conduct to be in serious breach of Company policies, including the EEO/Diversity Policy, Code of Business Conduct and IT policies. As a direct result and in accordance with our Disciplinary Policy the Company has decided to terminate your employment.

Your termination of employment is effective from COB on 27 January 2010.

Notwithstanding the fact that the Company regards your conduct to be serious misconduct, you will receive a payment in lieu of notice in accordance with the Disciplinary Policy, plus any accrued entitlements owing to you.

Yours Sincerely

SIMON TAYLOR

SITE OPERATIONS MANAGER

NATIONAL FOODS LIMITED

The letter to Mr Agius also noted that he had been subject to a final written warning in April 2009.

[4] At this juncture, it is convenient to record that the seven applicants fall into two distinct groups: firstly, three who claim they did not send any of the offensive emails (Messrs David Batterham, Sharkawy and Kroegel) and, secondly, the remaining four who accept that they sent some of the offensive emails, including some which might be said to be pornographic. The other significant areas of the applicants’ defence may be summarised as follows:

1. The failure of the respondent to provide adequate training on how to use and operate the Company email accounts;

2. Rudimentary training on the respondent’s Code of Business Conduct;

3. Other employees could access their email accounts as ‘passwords’ were commonly shared;

4. The existing ‘culture’ at the workplace in which offensive material was regularly circulated by employees, including supervisors;

5. Unequal treatment in comparison to other employees who had not been dismissed for the same conduct;

6. The respondent’s inadequate and/or incomplete investigation of the allegations;

7. Procedural unfairness at the disciplinary interviews;

8. The real reason for the dismissals was to save around $300,000 in future redundancy entitlements; and

9. Mitigating factors, such as unblemished records of service, age, length of service and difficulty in finding alternative employment.

[5] Each of these defences were thoroughly addressed in the evidence of the applicants and in their Counsel’s comprehensive submissions. The respondent brought evidence and put submissions rebuffing the applicants’ defences. The respondent’s Counsel strongly put that the respondent had discharged the onus it bears in establishing that the misconduct, as alleged, was proven: See Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70.The onus then shifted to the applicants to demonstrate that their dismissals were ‘harsh, unreasonable or unjust’, within the meaning of s 387 of the Act. I will return to all of these fundamental matters in due course.

The Respondent’s Policies

[6] Each of the applicants were alleged to have breached three or four of the following policies of the respondent on multiple occasions:

• The Email Policy relevantly provides as follows:




Use E-mail is to be used to conduct Dairy Farmers business. Its use is limited to employees. Minimal personal use of e-mail by employees is allowed, but it should not interfere with or conflict with business use. Any such personal use is governed by this Policy.

Inappropriate Use Dairy Farmers’ e-mail systems are not to be used in an inappropriate manner. Dairy Farmers considers “inappropriate” use to include, without limitation, any use which:

• Interferes with your work obligations;

• ...;

• Constitutes unlawful discrimination, unlawful harassment, bullying, vilification, victimisation or otherwise breaches Dairy Farmers’ Good Working Relations Policy;

• Causes damage to Dairy Farmers (including, without limitation, to its reputation) or has the potential to do so;

• Involves derogatory comments about other employees; or

• Is pornographic, sexually explicit, violent or otherwise offensive in any way.

If you receive by e-mail any inappropriate material, you must delete such material immediately and must not, under any circumstances, forward and distribute it within or outside Dairy Farmers. Storage or distribution of such material may result in disciplinary action, up to and including termination of employment.

• The Good Working Relations Policy sets out a list of prohibited behaviours. This includes:




Downloading sexually explicit or otherwise inappropriate material (including pornography, racist or other similarly offensive material) from the internet or from any other electronic source (whether an email attachment, disk or other source).

Displaying any sexually explicit or otherwise inappropriate material (including pornography and any sexual or naked pictures) anywhere, whether or not others can see such material.

Showing X-rated videos or any other X-rated or sexually explicit material.

• The Code of Business Conduct provides as follows:




Harassment

We are committed to ensuring that our workplace environment is free from harassment (including sexual harassment) or bullying. Behaviours that cause persons to feel threatened, uncomfortable, or distressed within the workplace or in the course of undertaking work related matters will not be tolerated.

Employees are encouraged to help each other speak out in response to harassment.

And

Use of Information Technology

...

We are prohibited from sending, receiving, downloading, displaying, printing or otherwise disseminating material that is sexually explicit, profane, obscene, harassing, fraudulent, racially offensive, defamatory or otherwise unlawful. We do not use or copy software in violation of licence agreements or copyright. We do not use passwords or codes without authorisation, nor gain access to information other than that for which we have specific authorisation. We do not use National Foods IT systems to interfere with the duties and functions of other people or organisations.

• The Diversity EEO Policy seeks to ensure that the workplace is free from discrimination, harassment and bullying.




Under the heading of employee responsibilities appears the following:

Every employee must treat others with respect and dignity, and is responsible for their own behaviour, and not discriminating against, harassing or bullying any other person in the workplace.

Employees are responsible for immediately stopping all behaviour that another person finds offensive, even if the employee does not perceive their behaviour as offensive.

All employees have a responsibility to report harassment in the workplace to a team leader, supervisor or manager, HR Manager or a Contact Officer as soon as possible.

Appropriate disciplinary action will be taken against any employee who unlawfully discriminates or harasses another employee or who contravenes the company’s Diversity policy.

Disciplinary action may also be taken where an employee knowingly aids or allows discrimination or harassment against another person to happen and does not endeavour to stop it.

Under the heading of harassment appears the following:

National Foods is committed to ensuring that every workplace environment is free of harassment.

Under no circumstances will the company tolerate any behaviour that cause persons to feel threatened, uncomfortable or distressed within the workplace or in the course of undertaking work related matters (this includes work related business and/or social functions on and off-site).

Harassment is any behaviour that is uninvited, unwelcome and offends, intimidates, demeans, humiliates or embarrasses another person.

It may include verbal, written, visual, electronic or physical affront against another person. (Please refer to the Intranet for further information on the National Foods IT Policy on Internet and Email Use).

It may occur during a single incident or repeatedly over a period of time. It may be obvious, indirect or even unintentional - the particular behaviour may still be perceived as harassment even though it was not intended to be. In other words what is acceptable to one person may not be to another.

[7] The respondent’s Performance Counselling and Disciplinary Policy outlines the procedures relating to dismissal:

[8] Under the heading ‘Dismissal Procedure’ appears the following:

Dismissal is the most serious application of this policy. An employee’s dismissal can occur in the following situations:

• In circumstances where a final warning has failed to modify the work performance or behavioural standards as required.

• As the first and/or final step in the disciplinary procedure where the lapse in performance or behavioural standard is of such severity as to warrant dismissal at that time.

In all situations of dismissal the Manager/Supervisor should firstly refer to their site HR Manager for guidance and the appropriate course of action. Under no circumstances should a Manager/Supervisor dismiss an employee until a HR Manager has been consulted.

Under the heading ‘Dismissal Process’ appears the following:

In order to dismiss an employee, specific authority is required from the Group Executive HR & Communication and the Group Executive of the area concerned.

Except in the circumstances of ongoing performance management, in order that a decision to dismiss an employee can be made, a detailed investigation must be conducted. This may require the employee to be suspended without loss of normal pay and conditions for the duration of some or all of the investigative process.

The employee is to be advised that the disciplinary procedure has commenced and that it may result in the termination of their employment. The employee is to be provided with a copy of this policy.

The employee is also to be advised that he/she is entitled to be accompanied at the meeting by an employee of their choice as a witness.

The meeting is also to be attended by the Senior Manager of the department in which the employee works; and the appropriate site HR Manager.

The Supervisor/Manager must explicitly and clearly identify what work performance or behavioural standard is unacceptable, and specify the required standard. Where appropriate, reference should be made to any final written warning or previous relevant disciplinary procedures that were put in place.

The employee is to be asked if they have any comments or additional information/explanation in regards to the stated problem. Due consideration is to be given to the employee’s views, and any mitigating circumstances taken into account.

At this stage, the meeting may be adjourned in order for further investigation to be carried out. Subject to the nature of the problem, it may be appropriate for the employee to be suspended without loss of normal pay and conditions for the duration of the investigative process.

At this stage, the Manager/Supervisor may elect not to dismiss the employee and may instead issue a first or final written warning, or cease the application of the disciplinary procedure.

If the decision is made to dismiss the employee then this dismissal process will be undertaken as outlined in this policy.

Under the heading ‘Appealing Against a Disciplinary Outcome’ appears the following:

Any employee subject to the disciplinary procedures pursuant to this policy is entitled to have the application of the policy reviewed.

The review will be conducted by a member of the National Foods Human Resources Department.

An employee seeking a review is required to make the request as soon as reasonably possible following the application of the disciplinary procedure. The request should be made to the relevant site HR Manager.

The review will be carried out as soon as possible after the request has been received, and a response will be provided to the employee and their Supervisor/Manager within a reasonable timeframe.

Brief Chronology of Relevant Events

[9] In July 2006, three employees at another Dairy Farmers site were dismissed following an investigation into the receipt, storage and/or distribution of inappropriate materials. As a result, on 1 August 2006, the then Managing Director, Mr Rob Gordon, issued a general email warning to all of the respondent’s employees that similar behaviour would not be tolerated. The email said:

To All Dairy Farmers Employees

I would like to inform you that three Dairy Farmers employees have recently been dismissed for contravening the company’s policy regarding the use of e-mail and the internet.

As part of an on-going internal investigation at a number of sites including Frenchs Forest, Lidcombe and Sydney Olympic Park, the employees were found to be distributing extremely inappropriate subject matter via Dairy Farmers’ e-mail network or accessing adult websites.

I would like to assure you that I am 100 per cent committed to providing Dairy Farmers employees with a respectful and harmonious workplace and this sort of behaviour will not be tolerated.

E-mail and internet are two very important communication channels for our business and it is absolutely critical that they are used in an appropriate manner.

To ensure this, a series of information sessions will be held shortly with all employees to outline Dairy Farmers Good Working Relations Policy.

Employees will also be required to sign an agreement indicating they understand our e-mail and internet policy and agree to its adherence.

While I’m confident the misuse of e-mail and internet is not common, we will place a heightened emphasis on monitoring our electronic communication systems, while also respecting the privacy of our employees.

[10] Mr David Batterham, Mr Sharkawy, Mr Agius, Mr Kroegel, Mr Usman and Ms Husar all received a copy of this email. All of the applicants had attended training in the respondent’s:

a) Diversity / EEO Policy;

b) Code of Business Conduct; and

c) Good Working Relations Policy.

They all had a briefing in October 2009 on expected standards of behaviour of employees, including the email usage policy. (Mr Agius did not attend training on this policy.)

[11] On 17 December 2009, two employees at the Wetherill Park site were observed by a supervisor, Mr Ashish Chhabra looking at inappropriate material on Mr Kroegel’s computer. Mr Chhabra immediately advised Mr Rakesh Babu, Manufacturing Manager, who then advised Ms Pearl Thompson, Human Resources Manager, People and Culture. This discovery triggered an internal investigation into the trail of inappropriate email usage by employees at the Wetherill Park site from Mr Kroegel’s computer. Later that day, three of the applicants (Mr Kroegel, Mr Usman and Mr Darrel Batterham) were suspended, on full pay pending disciplinary interviews. Mr Peter Lane, the Transport Workers’ Union Organiser, responsible for the site, was informed as to what had occurred and of the investigation. All of the applicants were members of the Transport Workers’ Union (‘the Union’). Mr Lane, or another Union representative, attended all of the disciplinary meetings with the dismissed employees.

[12] The investigation was conducted by Mr Simon Taylor, Operations Manager, and Ms Thompson over a period of six weeks. 60 employees were investigated and 39 employees were found to have been involved in receiving, storing or distributing inappropriate material over the respondent’s email system. Mr Taylor and Ms Thompson graded each of the involved employees into categories of seriousness based on ‘hardcore’ or ‘softcore’ pornography, other racist or offensive content and whether emails had been received, stored or distributed. The investigation was subsequently verified by an independent computer expert, Mr Mark Garnett of McGrath Nicol, who also gave evidence in these proceedings.

[13] On 22 January 2010, Mr Lane was briefed by the respondent on the investigation. On 27 and 28 January 2010, all of the applicants attended a disciplinary interview with Mr Lane. Mr O Fagir, the Union’s Legal Officer, attended some of the interviews. The interviews were conducted by Mr Taylor, Ms Thompson and Mr Alan Burton, State Culture and Change Leader for the respondent’s South Australian operations. The interviews were not recorded verbatim, but notes were taken by a labour hire employee, Ms Teresa Zhou and later typed up. (There was disagreement as to the length of each interview and whether there were one or two breaks in the interviews.) The applicants were provided a list of the inappropriate emails it was alleged they had stored or sent, but were not given the detailed content of the emails. It was accepted that a copy of the respondent’s Performance Counselling and Disciplinary Policy was not given to any of the applicants either during the investigation or at their interviews. All of the applicants were terminated for misconduct at the conclusion of the interviews. However, they were all paid an amount in lieu of notice.

[14] On 29 June 2010, National Foods announced a plan to consolidate its operations, including the closure of the Wetherill Park manufacturing operations by March 2012.

THE EVIDENCE

List of witnesses

[15] The following persons provided written statements and gave oral evidence during the proceedings:

Mr Mark Garnett, Computer Examiner, McGrath Nicol

Ms Pearl Thompson, Human Resources Manager, People and Culture, Wetherill Park

Mr Alan Burton, State Culture and Change Leader, South Australia

Mr Simon Taylor, Operations Manager, Dairy, NSW

Ms Corinne Belcher, Procurement Planning and Logistics Manager, Wetherill Park

Ms Chialee Goh, Quality Team Leader

Mr Frank Bassini, Diversity@Work, Contract Trainer

Mr Keith Pirie, Quality Group Leader, Wetherill Park

Mr Huseyin Guzel, Leading Hand, Wetherill Park

Mr Rene Laroza, Supervisor, Short Life, Wetherill Park

Mr Ashish Chhabra, Production Team Leader, Wetherill Park

Mr Rakesh Babu, Manufacturing Manager, Short Life, Wetherill Park

Mr Peter Lane, Union Organiser, Transport Workers’ Union of NSW

Ms Natalie Husar, Quality Management Systems and Consumer Complaints Investigation

Mr George Sharkawy, Operator 3, Short Life Processing

Mr Kashif Usman, Control Room Operator, Short Life Production

Mr Nicholas Agius, Machine Operator, Long Life Production

Mr Darrel Batterham, Storeman

Mr Siegbert Kroegel, Processing Operator, Short Life Production

Mr Ronald (David) Batterham, Leading Hand

[16] Mr Mark Garnett was called as an expert witness by the respondent. Mr Garnett is a partner of McGrath Nicol, and a certified Computer Examiner with 20 years experience, including 10 years in specialist forensic technology. As a result of the applicants’ dismissals, Mr Garnett was asked to prepare a Report, after undertaking the following tasks:

a) Review the investigation undertaken by Dairy Farmers personnel in order to identify information relevant to the matters giving rise to the Proceedings;

b) Conduct an examination of information relevant to the Proceedings that is contained on the computers used by:

- The seven applicant during their employment with Dairy Farmers; and

- Ms Pearl Thompson (Ms Thompson), HR Manager People & Culture;

c) Review all additional email data in Dairy Farmers’ Microsoft Exchange Server in respect of each of the applicants;

d) Recover, or attempt to recover, deleted mail items for each of the email archive files (PST files) for each of the applicants;

e) Review and analyse all information electronically stored by Dairy Farmers relating to the applicants relevant to the matters giving rise to the Proceedings; and

f) Provide a report addressing the questions outlined above.

[17] In his Report, Mr Garnett concluded as follows:

1. I have conducted a review of the Dairy Farmers spreadsheet prepared by Ms Thompson and, where I have been able to locate the electronic mail messages referred to, verified that the contents of that spreadsheet are accurate.

2. Having regard to my knowledge and experience, the electronic mail messages and accompanying attachments identified in the Dairy Farmers spreadsheet are authentic and they were not altered in any way.

3. As part of my analysis, I located additional copies of electronic mail messages and attachments of a pornographic or offensive nature relating to the applicants. Specifically, I located the following:

a) For Mr Darrell Batterham, I located an additional 147 electronic mail messages that had either been sent to his electronic mail account, or sent from his electronic mail account;

b) For Mr Ronald Batterham, I located an additional 33 electronic mail messages that had either been sent to his electronic mail account, or sent from his electronic mail account as well as three graphics image files;

c) For Mr Sharkawy, I located an additional 16 electronic mail messages that had either been sent to his electronic mail account, or sent from his electronic mail account;

d) For Mr Kroegel, I located an additional 23 electronic mail messages that had either been sent to his electronic mail account, or sent from his electronic mail account;

e) For Mr Usman, I located an additional 76 electronic mail messages that had either been sent to his electronic mail account, or sent from his electronic mail account as well as 7 graphics image files; and

f) For Ms Husar, I located an additional 20 electronic mail messages that had either been sent to her electronic mail account, or sent from her electronic mail account.

[18] After reviewing the statements of each of the applicants, Mr Garnett said that he found it implausible that Mr David Batterham, Mr Sharkawy and Mr Kroegel did not send the emails he had verified as being sent by them. Specifically, he noted that Mr Sharkawy had denied knowing how to send emails, but this could not be correct as specific emails sent by him were readily identified. As to Mr David Batterham and Mr Kroegel, he said that if they had not sent the emails, it would have meant a third party user had access to their account on every occasion that an inappropriate message was sent. Mr Garnett said that in respect to Mr Darrel Batterham, Mr Aguis and Ms Husar, he found it implausible that they did not send all of the emails identified in his Report. If they had not sent the additional emails, it would have required a third party user to access their accounts on all the additional occasions, including the same email on multiple occasions.

[19] Tendered through Mr Garnett was a DVD and hard copies of all of the emails and attachments he had identified in his Report. During his evidence in chief, Mr Garnett was shown and explained a spreadsheet, prepared by the respondent, which identified the offending material, where it was found, when it was created and where it may have been sent, received and stored. After the applicants were dismissed, Mr Garnett said a further 76 offensive emails were identified as being sent by some of the applicants while they were employed by the respondent.

[20] In cross-examination, Mr Garnett said that while he did not profess to be an expert in determining what is or is not pornographic material, he had relied on his own experience and his understanding of the respondent’s policies. He conceded this was a personal opinion formed after undertaking similar analyses.

[21] Mr Garnett had noted in his Report that he had not removed or attempted to identify duplicate emails. However, this also meant that duplicate emails were located in different locations. He was shown details of the same email being recorded twice at the same time. He agreed it was a duplicate message, but he believed it was a separate set of data on a different system. He conceded that the sender may have only pressed the button once, but the email ended up in different locations.

[22] Mr Garnett said that, at a minimum, the only thing which might be seen on a list of emails in a person’s account would be the title of a specific email. Mr Garnett agreed that he could not say definitively if an email was sent by the actual person whose name was on the account or by someone else unknown. He could only say that an email was sent from a particular computer using that person’s ‘log on’ and password. However, in framing his Report, he had relied on other information, such as a pattern of messages. He noted that no objection was taken by the user to someone else who may have sent a particular email from his/her account.

[23] Mr Garnett was specifically asked about his understanding of Mr Sharkawy’s knowledge of sending emails. He accepted that the emails he had annexed to his affidavit were not inappropriate and appeared to have been sent by someone who had a poor grasp of English. However, it did not follow that Mr Sharkawy had difficulty sending emails.

[24] Mr Garnett acknowledged that he did not know if employees at the Wetherill Park site shared ‘log on’ details or emails accounts, gave their passwords to others or left their email logged on for 24 to 48 hours at a time. He agreed one person could be ‘logged on’ to different computers at the same time. However, Mr Garnett said that he had no information to suggest that other employees had access to each of the applicants’ email accounts. He agreed that it was common for large organisations to have filters on their email systems; but he could not say why the respondent had not done so. He presumed that there may be business reasons why it had decided not to install a filter. Mr Garnett said that without such a filter (which does not lock out every piece of inappropriate material), a person could not stop receipt of such material.

[25] Mr Garnett agreed that the applicants’ explanations that other people had accessed their email accounts, was an explanation, but there were other explanations, including brothers sending each other emails and the sending of multiple emails. Mr Garnett accepted that he had no basis to believe that the applicants had created any of the inappropriate emails. Mr Garnett did not resile from his belief that it was implausible for Mr Darryl Batterham not to have sent the inappropriate emails. Mr Garnett said that even if a third party (s) may have had access to the applicants’ email accounts, it does not preclude the individual from sending an inappropriate email. There was no data nor information, except the applicants’ evidence, that other persons had accessed their email accounts. Mr Garnett denied ‘straying’ from his duty to the Tribunal as an expert witness, by not qualifying his Report about its lack of additional information.

[26] Ms Pearl Thompson’s first statement contained the various policies of the respondent (see par 6) and the training attendance records of each of the applicants.

[27] Ms Thompson gave evidence of the events of 17 December 2009. She said that the computer she looked at in the Processing Office, after being informed of the inappropriate emails was Mr Kroegel’s. Mr David Batterham was present in the office. Ms Thompson made notes of what she saw and spent about an hour looking through the emails. She said these emails contained images of females in revealing bikinis, rear shots of naked females and full frontal shots of naked males and females. At one point, Mr David Batterham and Mr Kroegel said they did not see anything wrong with the emails. Ms Thompson said that after she discussed the matter with Mr Taylor, it was decided that Mr Darrel Batterham, Mr Kroegel and Mr Usman be suspended pending a broader investigation.

[28] In referring to the two week investigation, Ms Thompson said that the first step in the process was to obtain access to the email accounts of employees whose names came up during her viewing of Mr Kroegel’s email account. The investigation widened as the email trail extended. She and Mr Taylor then prepared separate folders for each employee as their name came up in the chain. This became two folders. A list was generated for each employee containing:

a) the title of the email;

b) the folder the email was in by reference to sent item, inbox or stored. Stored meant the email was “stored” in a special folder on the employee’s email account;

c) the date of the email; and

d) a description of the content of the email.

[29] The emails were categorised as being received, sent and/or stored. The material was also classified as:

a) Hard core porn - exposed genitals (penis or vagina) and/or sexual acts on video;

b) Soft porn - naked men and women (not showing genitals but showing breasts or buttocks);

c) Racist jokes or pictures; and

d) Other offensive jokes or pictures.

[30] Ms Thompson referred to her updates to the Union and the interviews with each of the applicants. Each applicant was shown a copy of the list of emails and notes were made of each interview by Ms Zhou.

[31] In a further statement, Ms Thompson repudiated aspects of each of the applicants’ statements. Her general comments below in respect to Mr Darrel Batterham’s statement were applicable to each of the applicants’ statements. Ms Thompson:

• Denied saying in the Business Conduct Training ‘just sign the back page of the booklet and hand it back’;



• Said the training session was interactive with slides and a booklet was available online. Participants could ask questions;



• Said that Mr Lane assisted Mr Batterham and attended his interview. Mr Lane had a copy of the Counselling and Disciplinary Procedures. It does not allow for an internal appeal of dismissal;



• Denied that Mr Batterham did not know what standards were unacceptable. Each of the interviews followed a similar process of Mr Burton outlining the allegations according to a prearranged script and for the applicants to respond;



• Denied that Mr Batterham was not shown a list of the emails. Mr Lane had made notes of the list. Mr Batterham never asked to see a copy of the emails;



• Believed Mr Batterham understood very clearly what he was being accused of. There was also a break in the meeting so he could talk to Mr Lane; and



• Denied the respondent targeted workers in its investigation. A number of salaried employees were investigated and the criteria applied was consistent. All employees were treated in a fair and consistent manner.

[32] Ms Thompson made additional comments as follows. As to Mr David Batterham she:

• Queried why he did not report the receipt of ‘rude emails’ to her or any of the six known contact officers for employees who feel they may have been discriminated against or harassed; and



• Said that at his interview, Mr Batterham said ‘I have been involved with sending some sexy emails but...’.

[33] In respect to Mr Sharkawy’s statement, Ms Thompson said:

• It was hard to believe that Mr Sharkawy did not understand the Code of Business Conduct booklet as she had sent him numerous emails in his capacity as a Union delegate. Moreover, Mr Sharkawy had been counselled on 26 November 2009 for a breach of the respondent’s Diversity Policy and Code of Business Conduct; and



• That when Mr Sharkawy had denied knowing how to reply, forward or send emails she had tested this with his supervisor and three co-workers who all confirmed he did not have a problem using the email system.

[34] In respect to Mr Agius’ statement, Ms Thompson:

• Added that Mr Agius had received a final warning relating to a breach of the respondent’s Good Working Relations Policy; and



• Denied that she, Mr Taylor or Mr Burton made any comment or had made any arrangements for bringing someone else in early to replace Mr Agius when he was dismissed.

[35] Ms Thompson said that in respect to Mr Kroegel’s statement, she:

• Denied telling employees to just sign the booklet. She recalled Mr Kroegel being unsure about signing it and she told him to take it away and read it carefully.

[36] Ms Thompson said that in respect to Mr Usman’s interview she:

• Could not recall if he had said he left his email open for eight hours at a time so other people could use it;



• Recalled him saying people send emails to him and he sent them to people inside, but not outside. He had said he would not send such emails to his wife; and



• Recalled he had admitted to ‘doing the wrong thing’.

[37] In respect to Ms Husar’s statement, Ms Thompson:

• Denied that her dismissal was in any way related to her leg injury or a workers’ compensation claim.

[38] In cross-examination, Ms Thompson agreed that she did not have any personal experience of employees logging on and off their emails in the factory. She had not seen anyone in the factory ‘log on’ to the respondent’s intranet site to look at policies. However, all employees had hard copy versions. She said the Code of Business Conduct training took between 45 and 60 minutes to complete. It included slides, a booklet, questions and a case study. She had then collected the signed acknowledgements. She agreed there was no opportunity to read the Code during the session, although the employees could have read it beforehand or after. Nevertheless, she believed the employees well understood the email policy, because she had strongly emphasised its importance.

[39] Ms Thompson said that during the training she used slides and held up the booklet and talked the employees through it by focussing on areas of relevance. She conceded that she had not said anything about sharing passwords. Ms Thompson agreed that the examples in the booklet did not draw distinctions between ‘softcore’ and ‘hardcore’ pornography, fraudulent and obscene material or racially offensive and harassing material.

[40] Ms Thompson said one of the reasons the diversity training had been ‘rolled out’ was following an employee complaint of receiving inappropriate emails. She agreed that no one had actually complained about being harassed, discriminated against or bullied by the emails, which were the subject of the investigation. She also agreed that she had not told any employee that the respondent had a ‘zero tolerance’ policy to sending inappropriate emails. However, outcomes would depend on the circumstances. Ms Thompson agreed Mr Sharkawy’s level of English communication was not perfect, but he could get his message across. She also agreed that the Code of Business Conduct was written in quite technical language.

[41] Ms Thompson said she now remembered that a supervisor had told her he was offended by the material he saw on 17 December 2009. Ms Thompson agreed that the Policy only spoke of harassment, bullying and discriminatory behaviour and no one had complained before, or after the investigation, of having been harassed, bullied or discriminated against. Ms Thompson said the investigation involved both the production and maintenance departments, after a manager had told her about maintenance employees distributing offensive emails. Thus, the investigation was not limited. Moreover, a white collar employee was also dismissed after the investigation. She agreed that she had only investigated the persons whose names came up in the trail. Ms Thompson said that the two employees found viewing inappropriate emails on 17 December 2009, had not been disciplined because one was overseas and they both did not have a Company email account.

[42] Ms Thompson said Mr Taylor came up with the categories of pornography after receiving information from Department of Census. She acknowledged that the Code of Business Conduct did not make any distinctions between ‘hardcore’ and ‘softcore’ pornography. She added that no one was dismissed for having offensive emails sitting in their inbox unopened. However, she could not distinguish between an employee who had opened an email or whether the Information Technology Department (IT Department) or another employee had. She was not sure if employees had been trained in how to delete emails, but she understood it had been covered in the Good Working Relations training.

[43] Ms Thompson said that she and Mr Taylor had drawn up a list of employees to be interviewed into seven categories; some of whom were recommended for dismissal and others for lesser disciplinary action. She insisted that these categories were not final decisions, as a further assessment would be made after the employees’ explanations and taking into account other factors.

[44] Ms Thompson said that after the dismissals, arrangements had been made to replace dismissed contractors, but not permanent employees. A labour hire company had been put on notice that additional resources might be necessary. However, it was also clear that other employees did not need to be replaced and there was the added uncertainty over the future of the site. However, she strongly denied that future redundancies had been a factor in the investigation.

[45] Ms Thompson said that employees were told at the beginning of their interviews that dismissal was a possibility. They were accompanied by Mr Lane and shown the list of emails attributed to their accounts. They had been asked if they had anything to say. The first part of the interview went for 10 to 15 minutes and then there was a break. Ms Thompson agreed that none of the applicants were given a copy of the Performance Counselling and Disciplinary Policy. Nevertheless, Mr Lane definitely had a copy. However, she now conceded that a copy should have been given to each of the applicants. Ms Thompson did not believe the Policy’s reference to appeals applied to employees who were dismissed, as their appeals were to the Tribunal.

[46] Ms Thompson said that in reference to the respondent’s counselling procedures, she would not give a verbal counselling for serious misconduct. She had relied on her own experience to categorise the seriousness of the inappropriate emails. Ms Thompson said that Management did not consider offering more training to employees, because there had been two lots of training within four months of the misconduct continuing to occur. Further training was not raised with the applicants because they had all been through the earlier training.

[47] Ms Thompson agreed that when Mr Darrel Batterham attended his interview, he was very nervous and shaken. However, he had been suspended for six weeks and knew full well that he faced the potential of dismissal. Ms Thompson said she could not recall what was discussed with Mr Taylor and Mr Burton during the break in the interview. Although she did not have Mr Darryl Batterham’s personal file with her at the time, she knew that he had no previous warnings in his 20 years service. His service was taken into account, but it did not outweigh the seriousness of his conduct. Ms Thompson agreed there was not a second break in Mr Darrel Batterham’s interview.

[48] Ms Thompson accepted that Mr David Batterham had denied sending any of the inappropriate emails. However, the evidence proved he had. She acknowledged that he had said it was common for people to leave their email accounts open and anyone could have used his. However, he had confessed to sending ‘sexy emails’ (although he now denied using these words. He said the word ‘not’ had been omitted from the sentence).

[49] Ms Thompson said there had been a break in all of the interviews before a final decision was made. Mr David Batterham did not provide any further mitigating circumstances of why he should not be dismissed. She could not recall if the interview panel had considered his length of service. Ms Thompson said that three days before the interviews she had briefed Mr Lane, and told him that termination was a possibility. Ms Thompson said that she had originally intended to give Mr David Batterham a counselling, but further emails came up which had shown him storing and sending pornographic material.

[50] Ms Thompson was asked about Mr Sharkawy’s interview. She agreed that he had said that he leaves his email open and other people had access to his email. She also acknowledged that this was how two employees had been found looking at Mr Kroegel’s email; the incident which started the investigation. Ms Thompson said that all of the interviews started on the premise that the offending emails were in the employee’s inbox. However, she had been open to be persuaded otherwise. Ms Thompson said the purpose of the two breaks in Mr Sharkawy’s interview was to test his explanation that he did not know how to forward or send emails as he named three colleagues who had sent or forwarded emails on his behalf. The interview panel then spoke to these three employees, Mr Sharkawy’s supervisor and manager. They all denied sending or deleting emails on Mr Sharkawy’s behalf and said that he was quite capable of sending, receiving and deleting emails on his own. After the second break, it was put to Mr Sharkawy that he had lied about his capacity to send emails. Ms Thompson said that Mr Sharkawy had received an earlier counselling for a breach of policy in November 2009, but this was not taken into account. He was terminated for lying about his conduct and based on the evidence that he had sent pornographic material to other employees.

[51] As to Mr Agius’ interview, Ms Thompson said there had been a break to consider his explanations. She denied he had been prejudged before he went into the interview. He had relied on his record as a good worker and said he had not sent ‘hardcore’ pornography. Mr Agius also had a previous warning in April 2009 about a breach of the Good Working Relations Policy, concerning a false allegation of sexual harassment. This matter had been taken into account. Ms Thompson said other inappropriate material had come to light after he was dismissed. Ms Thompson strenuously denied having already arranged for another staff member to come in and replace Mr Agius. A recruitment company had been spoken to some weeks before about having people on standby, if needed. Ms Thompson agreed that from around August / September 2009, no new permanent employees had been engaged. However, this had nothing to do with the uncertain future of the site.

[52] In respect to Mr Kroegal’s interview, Ms Thompson agreed he had denied sending pornographic emails. However, given the volume of such emails, she queried where he would have been if he was not at his work station. He further explained that other people must have accessed his email. However, she did not believe him. Even if he did not ‘log off’ that was also a breach of policy. Nevertheless, he had been dismissed for sending pornographic emails, internally and externally. He had pleaded a 20 year record of employment without a blemish, but Ms Thompson said this did not justify not dismissing him based on the seriousness of his conduct. The fact that Mr Kroegel was involved with the Union had nothing to do with his dismissal, nor did his potential loss of redundancy benefits. Ms Thompson accepted that on her spreadsheet a note was next to Mr Kroegel’s name of ‘OHS rep’ and ‘union delegate’. While it had no relevance to the decision, she said she was nevertheless shocked that the Union delegate and Chairperson of the Safety Committee would be involved in distributing ‘hardcore’ and ‘softcore’ pornography in the workplace, given his role of protecting members from risks to their health and safety. Ms Thompson accepted Mr Kroegel had had 20 years service and had received certificates for outstanding performance and commitment.

[53] As to Mr Usman’s interview, Ms Thompson agreed he had said he would not send such material to his wife. However, it was commonplace in the workplace, because other employees would not be ‘angry’ and they all did it. In accepting that there was a culture of inappropriate behaviour at the workplace despite numerous training sessions and warnings, Ms Thompson noted that Mr Usman had had two lots of training, but had not changed his behaviour. He was at the ‘higher end’ of sending ‘hardcore’ pornography which had shocked the interview panel.

[54] Ms Thompson said that she had been unaware that Ms Husar was being considered for a promotion to Brisbane. She insisted that Ms Husar was not dismissed because she was on workers’ compensation. Although it had been noted on the spreadsheet, it had nothing to do with her dismissal. Moreover, most employers avoid dismissing employees on workers’ compensation as control of the insurance claim is lost. Ms Husar had been dismissed for distributing ‘hardcore’ pornography.

[55] In closed proceedings, Ms Thompson was asked about the specific recommendations on the spreadsheet prepared by Mr Taylor and herself. It was noted that four employees on the spreadsheet had had their recommendation changed after their interviews. Two were given a final warning, rather than dismissal, another was dismissed rather than given a final warning and Mr David Batterham’s recommendation for counselling was changed to dismissal. Ms Thompson added that this occurred after more information had come to light about the emails he had sent. Ms Thompson said that the criteria adopted for the recommendations was that forwarding ‘hardcore’ pornography resulted in a recommendation of dismissal and ‘softcore’ was a final warning. ‘Hardcore’ was defined as photos of male or female genitalia and/or videos of sexual acts. The distinctions were drawn from censorship classifications which Mr Taylor had inquired about. Explanations had been sought from employees. However, the interview panel ‘pretty much’ stuck to these definitions. Another consideration was whether the emails were distributed internally or forwarded to a home email. Ms Thompson was asked about the various distinctions made about the specific material and whether its distribution would result in dismissal, a final warning or counselling. She noted that in a number of the email images, which were very offensive and suggestive, they may not have actually shown genitalia. However, distributing this material did not result in dismissal. She also noted that one employee had a large amount of ‘hardcore’ pornography in his inbox, but there was no evidence that he had sent it to anyone else. Even so, he was given a final warning. Leniency was also given if ‘hardcore’ pornography was sent home and not distributed internally. This was because sending it internally breached a number of the respondent’s policies and exposed employees to health and safety risks. Ms Thompson was also shown final warning letters of employees whose names were not on the original spreadsheet. She explained that these names came up later in the investigation.

[56] Mr Alan Burton had been called in to assist in the investigation process. He said that on 25 January 2010, together with Ms Thompson and Mr Taylor, they had agreed on the following process for interviewing employees:

a) Before being called to the interview, the employee would have an opportunity to discuss the matter with his or her representative;

b) At the start of the meeting, I was to put forward the Company’s position and provide an overview of the investigation that had been carried out up until that point;

c) We would provide the employee with an opportunity to respond;

d) We would listen to and consider any responses and feedback from the employee;

e) After the employee provided his or her response, we would show the employee a list of emails that had been generated by Ms Thompson. The list showed the title of the email, the date, whether the email was sent, received or stored and included a brief summary of the contents of the email;

f) We would then have a break to allow the employee an opportunity to discuss the matter with their representatives, and also to allow us to discuss the employee’s response between ourselves. During this break Mr Taylor, Ms Thompson and myself would also discuss the alternative options;

g) Once the meeting resumed, the employee would have an opportunity to provide any additional information he or she wanted considered by the Company;

h) We would then consider any additional information provided by the employee. If needed, we would make further enquiries;

i) If needed, we would have a second break to consider how any additional information affected the outcome;

j) We would then deliver our determination to the employee.

[57] Attached to Mr Burton’s statements were the notes of each of the applicant’s interview. He believed they represented a true and accurate record of the discussions as noted by Ms Zhou. Mr Burton said that the interview panel had agreed on a script that would be followed for each interview. He would begin the interview by saying words to the following effect:

In December 2009 an investigation commenced at Wetherill Park to review company email usage for a number of employees, including you. This investigation has involved the review of your complete usage, including emails you may have sent to or from the workplace.

The investigation has found that you have been misusing the company email system by storing in your inbox and forwarding sexually explicit, pornographic and offensive emails and/or videos in breach of a number of different company policies. This is a serious matter and it could lead to a termination of your employment.

Given this and our view that this behaviour constitutes serious and deliberate misconduct and is in breach of a number of Dairy Farmers and National Foods policies - this interview has been called to provide you with an opportunity to respond and explain.

[58] Mr Burton said that on 27 January 2010, the interview panel met with Union officials, Mr Lane and Mr Fagir and briefed them on the investigation and the process of interview. Mr Lane had said that it (inappropriate email distribution) had been going on for 10 years. Both Mr Lane and Mr Fagir had asked whether the respondent would involve the Police. Mr Burton had said that the Company’s Policy does not mention referral to the Police.

[59] In noting each of the employees’ interviews, Mr Burton said that following consideration of the employees’ responses, the interview panel had discussed all options and decided an appropriate outcome.

[60] In cross-examination, Mr Burton deposed that he first received substantial information about the investigation on 20 January 2010, when he received Ms Thompson’s spreadsheet and annexures. He met with Ms Thompson and Mr Taylor around the week of 27 January 2010. He could not recall when they had discussed the categories of inappropriate material, but Ms Thompson had explained how it had been done. He agreed that he had not personally checked the categorisation against each of the emails. He confirmed his understanding of how the differences in ‘hardcore’ and ‘softcore’ pornography was made. Mr Burton was aware of the Code of Business Conduct and that it did not contain categories of pornography. However, it certainly made references to the prohibition on distributing pornography. Mr Burton did not believe he needed to view each of the emails to establish the correctness of their categorisation.

[61] Mr Burton’s understanding of the recommendations in the spreadsheet, were that they distinguished between the type of material and whether it was received, stored or sent. He could not recall if it identified whether it was sent to more than one person. Mr Burton agreed that he had read the notes alongside each employees’ name. However, he had not referred to them at the interviews. Although he had asked why the note ‘OHS rep and union delegate’ was next to Mr Kroegel’s name, it was irrelevant. Mr Burton was aware that the future of the site was under review, but he was not privy to any details. Mr Burton said that while the Company had made certain recommendations, he believed it was important for employees to respond to the allegations and put any explanations forward. No decisions had been made before the interviews.

[62] Mr Burton said he was familiar with the respondent’s Discipline Policy and was ‘comfortable’ that it had been followed in all cases. He accepted that a mistake had been made in not giving each employee a copy of the Policy, but it did not make any difference to the interviews or the outcomes. He had not known the employees’ work history, unless it was specifically raised during the interviews.

[63] Mr Burton said that Mr Darryl Batterham’s period of service did not make any difference to the decision. However, he agreed that the respondent had not taken account of his good record, the possibility of a severe warning or the fact he stood to lose substantial redundancy benefits if the site closed. After a break in the interview, it was decided that dismissal was the right course of action. Mr Burton said that he did not believe Mr David Batterham when he said he had not sent inappropriate emails and that it was common for employees to leave their emails open. Mr Burton said his recollection was that Mr David Batterham had said he was involved with ‘sending sexy emails’. Mr Burton added that it was agreed with the Union that if any employee needed a second break in their interviews, it would be granted.

[64] Mr Burton did not agree that Mr Sharkawy had trouble with English. He did not believe that he did not know how to use the email system or that other employees used his email account. Five other employees confirmed that Mr Sharkawy knew how to use the email system. Mr Burton believed that the actions in respect to Mr Sharkawy were appropriate.

[65] Mr Burton could not recall during Mr Agius’ interview, if Mr Lane had complained that the process was unfair. Mr Burton denied that someone else had been arranged to replace Mr Agius. He denied the respondent had wanted to reduce its ‘headcount’ or that nothing was going to change its mind about the dismissals.

[66] In respect to Mr Kroegel, Mr Burton said his good record of 20 years was not a factor in the decision to dismiss him. He believed he had lied when he said he had not sent pornographic emails. Mr Burton did not think it was relevant that it was Mr Kroegel’s computer which had been viewed by someone else and that this confirmed Mr Kroegel’s explanation. Mr Kroegel had been given a list of the emails he was involved with and he had not asked to look at them. During the break, the interview panel had not discussed Mr Kroegel’s service or the fact he was a Union delegate. Mr Burton said that the length of service of employees was not the issue, given the seriousness of their conduct.

[67] Mr Burton said that in respect to Mr Usman, he did not have regard to his length of service or his personal file. He remembered Mr Usman saying that he would not send inappropriate material to his wife, but it was different for his co-workers. He accepted Mr Usman had asked for a second chance, but the decision to dismiss him was considered appropriate. Mr Burton acknowledged that while there may have been a ‘culture’ in the workplace it did not make it acceptable, particularly as he was aware of a number of measures which had been taken to address the problem in recent years.

[68] In respect to Ms Husar, Mr Burton said he did not know whether she believed she was attending an interview about a promotion in Brisbane. He accepted she was not given a copy of the Discipline Policy, but said it would not have made any difference. Mr Burton said he was not aware that Ms Husar was on workers’ compensation at the time.

[69] Mr Simon Taylor described the nature of the respondent’s operations at Wetherill Park. He outlined the events of 17 December 2009, when, during or just after a Christmas barbeque for staff, he was contacted by Ms Thompson after two employees were discovered looking at pornographic images on a computer in the Processing Office. He instructed Ms Thompson to go and see what was happening and later went himself. Ms Thompson had said there was a problem which was not ‘looking good’. He asked whose email it was and Ms Thompson had said it was ‘Ziggys’ (Mr Kroegel). Ms Thompson had recorded a list of items on Mr Kroegel’s inbox, who it had been received from and who it had been sent to. Based on this information, they both identified three employees who appeared to have been sending pornographic and offensive emails. The employees were stood down and Mr Taylor arranged a meeting that day of the senior management team to brief them on the events and inform them that an investigation was to be conducted.

[70] Mr Taylor was provided with the email records for the employees, subject to the investigation, by the Information Technology Department and during a short period while Ms Thompson was on leave, he categorised their content as follows:

a) Hard core porn - which was images of male and female genitalia;

b) Soft core porn - which was images of males and females showing buttocks and breasts, but not genitalia;

c) Offensive and racist content.

[71] He also looked at whether the employee had received sent and/or stored the inappropriate content. When Ms Thompson returned, he had asked her to cross check the records and generate a list for each employee.

[72] Mr Taylor detailed his briefing with the Union and the interviews with the employees. As Mr Taylor’s evidence on these matters does not differ markedly from Ms Thompson’s or Mr Burton’s evidence, I will not repeat it. However, Mr Taylor said that for each employee he reviewed and considered a number of factors in order to assess the extent of the breach of the respondent’s policies. These were:

a) the list of emails that had been generated by Ms Thompson for each of the employees, including the nature of the content based on the summary prepared by Ms Thompson;

b) whether the email had been received, sent and/or stored;

c) attendance at training in the Dairy Farmers Good Working Relations Policy, the National Foods Code of Business Conduct and the National Foods Diversity /EEO Policy;

d) prior disciplinary history;

e) length of service; and

f) any mitigating circumstances.

[73] Mr Taylor said that while he appreciated the decision to dismiss employees would have a serious impact on them, and that he was conscious of their years of service, he balanced this against the following:

a) The Company’s values, including with respect to integrity (being guided by what is ethical and fair and being committed to good governance and high moral standards) and providing a safe, healthy and positive working environment free of all discrimination and harassment;

b) The fact that each of the applicants had been trained in the National Foods Diversity / EEO Policy and the National Foods Code of Business Conduct as recently as July, August and September 2009;

c) The fact that the evidence overwhelmingly indicated that each of the applicants had received, viewed and sent pornographic emails while at work during their work time;

d) The extreme nature of the content of the emails, many of which I would describe as hard core pornography and extremely offensive; and

e) The number of instances in which the conduct occurred and the fact the allegations did not involve a single isolated incident.

[74] In cross-examination, Mr Taylor deposed that he resides in Queensland with his family and commutes to Sydney each week. He said that these arrangements had nothing to do with the uncertainty over the future of the site, but was due to personal financial necessity. After the site closed, he and his family would be moving to New Zealand.

[75] Mr Taylor agreed that after a dispute with the Union in February 2010, the respondent transferred eight casual employees to permanent employment. Mr Taylor accepted that none of the 21 positions lost as a result of the investigation, had been replaced by permanent employees. He added that some did not need to be replaced because they had spent ‘vast amounts of time sending pornography, playing games...’. However, he could not validate how long people were actually spending on their emails. Mr Taylor said the investigation covered a period of about 18 months during which the training had occurred. He said the investigation was as a result of following the trail from Mr Kroegel’s email. However, it included supervisory employees - one of whom was dismissed and another disciplined. He conceded however, that the investigation did not cover all employees of the respondent. Mr Taylor said that even though it was ultimately his decision to dismiss employees, the decision was arrived at by consensus with Ms Thompson and Mr Burton.

[76] Mr Taylor agreed that Lion Nathan, National Foods, is an informal place to work. Nevertheless, there were rules and policies in place. He was familiar with the Code of Business Conduct. It was Mr Taylor’s understanding, after talking to the IT Department over recent days, that the system did have a filter in place, but it could not pick up innocent titles which masked inappropriate material. He said it was the employees’ responsibility to report any receipt of inappropriate emails to a supervisor. Mr Taylor agreed that the Code of Business Conduct does not make a distinction between receiving, sending or downloading material. Mr Taylor also agreed that there was no suggestion that any of the applicants had harassed or bullied anyone else. He said he did not know what training employees had undergone on the use of emails. He conceded that in some areas computers are shared and if they are not locked, they remain on.

[77] Mr Taylor said that in addition to categorising emails as to the degrees of seriousness, he had considered whether people had stopped sending offensive material after their training. Mr Taylor accepted that the distinctions he had drawn were not mentioned in any Company policy or document. He had established the definitions by reference to the Government Censorship site. He agreed the employees may not have drawn the distinction between receiving, sending or storing the material.

[78] While observing that the investigation involved 60 employees who were traced through the emails that were first found on Mr Kroegel’s emails, Mr Taylor did not accept that there was a ‘culture’ of this behaviour at the workplace. People had simply ignored their training and the warnings given. Nevertheless, he said he was ‘troubled’ by the investigation and its outcomes.

[79] Mr Taylor deposed that in their interviews, the applicants were asked to explain their behaviour and offer reasons why they should not be dismissed. He accepted that the evidence had already established that they had sent, received and stored inappropriate material. When asked about each of the applicant’s interviews, Mr Taylor agreed that none of the applicants were taken directly to the policies they were said to be in breach of. He recalled that the interviews lasted between 30 to 45 minutes with two breaks, during which time the applicants left the meeting with Mr Lane. Mr Taylor could not give any explanation why in most of the records of the interviews, there is no reference to there being a second break. Mr Taylor said that during the breaks in the interviews, the interview panel discussed the employees’ records, length of service, what was said in the interview and how they defended their actions. He agreed the interview panel did not have the applicants’ personal files with them.

[80] Mr Taylor agreed that the applicants were not told, before their interviews, that they were facing dismissal, nor were they given the respondent’s Discipline Policy. Mr Taylor accepted that the disciplinary procedure commenced when three of the applicants were suspended in December 2009, and it was normal practice to give employees the Disciplinary Policy at that point. While Mr Batterham was given the Disciplinary Policy a week after he was dismissed, Mr Taylor did not consider this to be a breach of the respondent’s policy.

[81] Mr Taylor strongly refuted the suggestion that terminating the applicants was a cheap way out of not having to pay redundancy pay. The issue was not about saving money, but about breaches of the policies of the respondent and employees sending pornography around the workplace. It was also about protecting other employees. Mr Taylor said that he did not believe Mr David Batterham or Mr Sharkawy when they denied sending inappropriate emails and that someone else may have used their email accounts. Mr Taylor denied that arrangements had been made for Mr Agius to be replaced before he was dismissed. No decision was made until the interview process was complete. Mr Taylor still doubted Mr Kroegel’s response that he did not send any of the inappropriate emails. Mr Kroegel’s long service and good record had been taken into account. Mr Taylor agreed that Mr Kroegel’s position was replaced by a casual employee.

[82] Mr Taylor could not recall if Mr Usman referred to cultural differences in that he drew a distinction between sending emails to his wife and to his co-workers. Mr Taylor said he did not accept Mr Usman’s explanation that ‘everyone was doing it’. Mr Taylor insisted that all employees were given a fair process.

[83] Mr Taylor said that it was Company policy that employees were not to share their passwords or usernames and he had no knowledge of any employee sharing emails or giving passwords to each other. Mr Taylor agreed that it took up to seven days for employees to obtain approval for their own password. He did not know whether new or casual employees were given access to another person’s email from day one.

[84] Mr Taylor said that none of the applicants appeared shocked or surprised when shown the list of emails they had either sent, stored or received. Mr Taylor re-affirmed that the fact the plant was to close, resulting in redundancies, had absolutely nothing to do with who was dismissed for misconduct. Arbitrary decisions had not been made and all employees had been treated fairly in accordance with due process.

[85] In re-examination, Mr Taylor said he had only received official notice of the plant’s closure in March of this year. Mr Taylor said the only statements he had read prior to giving evidence were the applicants’, Mr Garnett’s and his own. He had not discussed his evidence with anyone. After being shown the name of one employee, Mr Taylor said that the recommendation to dismiss was changed to a final warning based on the person’s remorse and a change in behaviour after training.

[86] Ms Carrine Belcher has been employed by the respondent for 13 years and was Mr Darryl Batterham’s manager. Ms Belcher described Mr Batterham’s duties, which involved the daily use of the store computer to transfer materials and update the manufacturing, distribution and warehousing processes (SAP). She said that as he worked afternoon shifts (2:00pm to 10:00pm), he often worked alone and unsupervised.

[87] Ms Belcher responded specifically to Mr Darrel Batterham’s statement as follows:

• It was unnecessary for email access to use SAP and there is no link between them. They have separate user names and passwords;



• SAP version 6.0 introduced in September 2009 involved proform;



• A letter had been sent to employees which said, in part ‘passwords must be kept private and confidential’;



• From her observation, it was not common for other staff to use the office used by Mr Batterham and it was not a common practice for staff to use other people’s email accounts;



• Any requests made to Mr Batterham that he provide his password to casual employees would have been unauthorised. In any event, casuals did not need access to email;



• Mr Darrel Batterham had SAP training in August 2009, (not 10 years ago) and understood basic computer terms;



• There is no reason for employees to share emails;



• No permission had ever been given to authorise Mr Mark Fisher (Mr Batterham’s Leading Hand) to give Mr Batterham’s password to anyone else and she was not aware of any occasion that this had occurred;



• There is no reason for non-store staff to use or enter the store office or use the store computer, as there are computers in every section of the plant; and



• All store employees are provided with usernames and passwords for network access, but not everyone has email access.

[88] In cross-examination, Ms Belcher agreed that Mr Batterham had a shared computer because it was needed on other shifts, and the computer did not automatically ‘lock out’ after a period of time. Ms Belcher remembered someone had requested a lock on the door of the store because materials were going missing. She agreed a number of employees would walk past the store office where the computer was held, but she had never seen anyone, other than store personnel, in that office.

[89] Ms Belcher said that when casuals are first engaged they fill in a form to have network access. The process could take two or three days, although it could be longer. During the first week of training, they do not need access because they are ‘buddied up’ and shown someone else operating the computer.

[90] Ms Chialee Goh was Ms Husar’s supervisor. She denied asking for Ms Husar’s password on ‘many occasions’. She recalled only one occasion asking for her password when Ms Husar had left work and left her computer locked. As the next Lab Technician needed to ‘log on’ with his password, he could not do so until she had ‘logged off’. She had phoned her to ask for her password and told her to change her password on the next shift.

[91] Ms Goh denied ever giving Ms Husar’s password to other Lab Technicians. Moreover, it was unnecessary to do so because they each have their own passwords. Ms Goh added that it did not make any sense for an employee to use another person’s email, as they each had their own and each employee had their own independent work station. She said that you do not need an email account to use the VersaCold system. However, this system can be used to send emails, without a personal email being open.

[92] Ms Goh said that she found it unusual that Ms Husar would turn her computer on before bundying on for her shift as work commences when an employee records their start time. She also believed Ms Husar had a very good understanding of the use of email. In fact she had been promoted to a SAP ‘super user’ because of her good computer skills.

[93] Ms Goh deposed that she had never received any inappropriate emails and she did not believe it was a ‘common’ practice at the Wetherill Park site. Ms Husar had never reported to her that she had received inappropriate emails.

[94] In cross-examination, Ms Goh said no computer is ‘shared’ in the Lab, except on different shifts where each employee has their own ‘log on’ and password. Ms Goh did not know if Ms Husar’s computer had an automatic ‘lock out’ setting. Her own computer ‘logged off’ automatically after a period of inactivity.

[95] She said that Ms Husar had never approached her about problems using the emails or Microsoft. He said that no one had ever complained to her about receiving inappropriate emails. Ms Goh understood that it was against Company policy to share passwords and ‘log ons’, but in the incident when she rang Ms Husar to ask if she could have her password, it was necessary because the next shift technician could not do their work on an important computer, (the ET120).

[96] In re-examination, Ms Goh deposed that the computers can be locked automatically after a set period of time, or by hitting the control/alt/delete functions. There were two ways of unlocking a computer - using a password or turning it off. In the incident referred to above she had been concerned that turning it off might result in losing information. This is why she rang Ms Husar to ask for her password.

[97] Mr Frank Bassini is employed by Diversity@Work as a contract trainer. He conducted the 2009 training of employees at the Wetherill Park site on the National Foods Diversity Policy. In conducting this training, he identified one of the key messages as to employees not using the Company email system to send pornography, offensive or other inappropriate content. During these sessions, he emphasised the distinction of what one can do at home and not do at work. He had said that as everything can be traced, if someone had any doubts, then do not do it. Mr Bassini made no moral judgement about pornography or what one does at home. However, at work, trafficking in inappropriate emails is strictly out of bounds.

[98] As the respondent’s Quality Group Leader, Mr Keith Pirie had direct contact with Ms Husar. He outlined her duties and said that as part of a ‘return to work plan’ in 2008, Ms Husar moved from night to day shift, so as to limit her time walking and climbing stairs.

[99] Mr Pirie said he found it very strange that Ms Husar had said she turned her computer on before ‘bundying on’. He also said she would not have needed to check the cooling of yoghurts and sour creams at least once an hour - it was more like two to three hours and sour cream is not produced every day. Mr Pirie did not agree with how long Ms Husar said she was away from her computer. In her role as assisting with the SAP version 6.0, she had spent 80% to 90% of her time on the computer and was responsible for SAP implementation, investigating consumer and customer complaints, internal failures and quality audit system updates. He said that Ms Husar was competent in writing and sending emails as it was part of her role.

[100] While Mr Pirie has worked at the Wetherill Park plant for 22 years, he denied it was a common practice to send inappropriate emails; nor was it condoned. He said that all Lab employees had been informed to ‘log off’ their computers immediately after completing their computer work. Mr Pirie did not believe there was a practice of employees leaving their computers ‘logged on’ for the entire shift. In his experience, most computers lock themselves after a period of inactivity. Mr Pirie said it did not take long to ‘log on’ and ‘log off’ the computer. He was not aware of any employees who did not have their own access to emails. Mr Pirie attached to his statement, a number of Ms Husar’s warnings of poor performance and absenteeism and records of counselling.

[101] In cross-examination, Mr Pirie agreed he had spent a very small proportion (less than 10%) of his time observing Ms Husar’s work. He acknowledged that he had not actually observed what Ms Husar did when commencing her shift. However, normal practice is to swipe in first and then go to the work station.

[102] Mr Pirie confirmed that he had never received any pornographic or offensive emails in 22 years at Wetherill Park nor had anyone complained to him that they had received such material. He was surprised that out of 60 employees investigated, 39 were found to have engaged in this behaviour.

[103] Mr Pirie said that sometimes it took two to three weeks for casuals to get access to SAP and authorisation. However, they do not use other employees’ passwords in the meantime. Mr Pirie believed that most computers ‘logged off’ after a time. However, he was not aware if Ms Husar’s did. Mr Pirie agreed that other employees do come into the Lab area, but he believed it to be very unlikely they would use the computers in that area. He had not seen anyone ‘log on’ to emails except for the the Lab staff.

[104] Mr Huseyin Guzel is a Leading Hand and has worked for the respondent for over 20 years. He denied giving permission to Mr Sharkawy to give his password to Mr Lucio Uniforme. He had never asked Mr Sharkawy to give his password to other employees and, as he did not know his password, he could not have given it to other employees.

[105] Mr Guzel was interviewed during the investigation for sending inappropriate emails and was represented by Mr Lane. He could not recall if there were one or two breaks in his interview. After indicating he was very sorry for what had happened, he had received a first and final warning letter.

[106] Mr Guzel conceded that he had seen Mr David Batterham’s email open a few times after he had left the premises, but he did not look at his emails, nor had he seen anyone else do so. He had not seen anyone’s passwords written down anywhere. Mr Guzel denied his answers were untruthful because he knew he was on a final warning and that acknowledging he had asked Mr Sharkawy for his password was another breach of the respondent’s policies, for which he may have been terminated.

[107] Mr Rene Laroza is a supervisor at Wetherill Park, having been employed for 12 years. He supervised Mr Usman, Mr David Batterham, Mr Kroegel and Mr Sharkawy. He said he was not aware of any practice at the site of employees sending pornographic, offensive or inappropriate emails; nor was it condoned.

7. Procedural unfairness at the disciplinary interviews

[293] Mr Shoebridge raised a number of matters related to procedural unfairness, particularly relating to the disciplinary interviews. He put that the first time the applicants knew they were likely to be dismissed, was at the start of the interviews. In my opinion, this submission cannot possibly be sustained given the following circumstances:

(a) Three of the applicants had been suspended for five to six weeks. They knew the reason for their suspensions. It beggars belief that they would not have known there was a real possibility of their dismissals.

(b) The wide ranging investigation of the email trail involving around 60 employees, was common knowledge at the workplace and was no doubt the subject of much discussion amongst the employees. Mr Sharkawy said that before his interview, ‘everybody was talking in the lunchroom about investigations, about emails’.

(c) Employees had been made aware of three other employees losing their jobs for similar behaviour.

(d) All employees would have been well aware through the Managing Director’s 2006 email, from the training provided and the respondent’s policies that a possible outcome of being found to have engaged in such conduct was dismissal. Mr Babu attached to his statement minutes of regular ‘toolbox’ meetings which demonstrated that the Disciplinary Policy had been discussed. While there was no specific evidence of who attended these meetings, it seems reasonable to assume that most, if not all employees, would have been exposed to the Policy during such meetings.

(e) The Union official, Mr Lane, was briefed on the investigation, he or another Union official attended all the interviews and Mr Lane had a copy of the Disciplinary Policy. I find it extraordinary that Mr Lane had not told his members of the likelihood of dismissal if any of them had been involved in distributing inappropriate material, either during the investigation, or in the lead up to the disciplinary interviews. One of the applicants was a Union delegate - Mr Kroegel. In his case, I find it incomprehensible that he claimed not to know what ‘termination of employment’ meant, let alone that he did not know he had been suspended for alleged conduct which might result in his dismissal.

(f) All of the employees had medium to long periods of service with the respondent. To suggest that employees with their level of experience did not know of the likelihood of their dismissals is to strain credibility beyond belief. (I will deal with Ms Husar’s more specific evidence on this point later.)

(g) Despite Mr Sharkawy’s protests, he did acknowledge that he knew his interview had something to do with emails and pictures. In fact, he admitted that he had gone to the interview expecting a first or final warning, but not dismissal. If the applicant who allegedly had the least command of English had a fair idea of what the interview was about and expected a disciplinary outcome, it is utterly implausible that the other six had no idea of their likely dismissals.

[294] Mr Shoebridge also argued that the applicants were not given a copy of the respondent’s Disciplinary Policy and not told that they had an appeal right under the Policy. To this I conclude, firstly, that the respondent’s witnesses’ evidence makes clear that Management was wrong not to have given the applicants a copy of the Disciplinary Policy. However, they all gave evidence that it would not have made any difference. I agree with that view. This was such an insignificant oversight, as to have no bearing at all on a challenge to the procedural fairness of the interviews. In my judgement, this was particularly so given the involvement of an experienced Union official, who would have not only been aware of the Policy, but had an obligation to his members to outline what was expected to happen. As to the appeal right, in my opinion, that right concerns an appeal in circumstances, other than summary dismissal. I accept the respondent’s proposition that as the dismissed employees were no longer employees, the right could not be exercised. In any event, the appeal right, properly available and, indeed exercised, was to this Tribunal. I consider this complaint to be little more than ‘clutching at straws’. It would not have altered the course of the investigation or the outcome.

[295] Mr Shoebridge also submitted that the three members of the interview panel did not have any of the applicants’ personal files at the interviews and could therefore not make an appropriate assessment of the applicants’ good records of employment. I reject this submission. Two of the interview panel members were employed at the site. Ms Thompson was the Human Resources Director. She would have been well familiar with the applicants’ periods of service and records. All of the members of the panel gave evidence that they had considered these matters and had taken them into account. However, they found that the seriousness of the conduct far outweighed these considerations. I accept the respondent’s evidence in this regard. Moreover, I consider it was eminently sensible and good practice to have enlisted a person external to the site (Mr Burton) who would bring an unbiased voice to the disciplinary process. I note that Mr Shoebridge was not overly critical of Mr Burton’s evidence.

[296] There was some debate as to whether there were one or two breaks in the interviews. It does seem odd that the note taker seemingly omitted to record a second break in the interviews. Mr Taylor was emphatic that there were two breaks in each interview. In some respects whether there were one or two breaks misses the point. The real question to be asked was, had the applicants been denied procedural fairness? There is no dispute that there was at least one break in each interview for Mr Lane to discuss with his members how they might respond to the allegations and two breaks in respect to Mr Sharkawy’s interview. This is in addition to what I am sure would have occurred before the interviews. I think it highly unlikely that Mr Lane would not have briefed his members on what might be raised, particularly given the attendance, for some of the interviews, of the Union’s Legal Officer. That said, I do not consider the debate over one or two breaks to be of such significance as to tip the balance in favour of Mr Shoebridge’s claims as to procedural unfairness.

[297] A more serious proposition is that the dismissal decisions had already been made by Management, prior to the interviews and no matter what the applicants said, the decisions would not have been altered. Mr Shoebridge based this submission on the spreadsheet prepared by Ms Thompson and Mr Taylor, which identified proposed outcomes for each of those investigated who had been found to have been involved in some way. I would wish to observe that this spreadsheet was not some secretly concocted document to be used to finally determine what was to happen with each of those involved. In my view, the disciplinary interviews were not a sham, nor were their outcomes predetermined. I accept the respondent’s evidence that these recommendations were predicated on the information gathered in the investigation and tested against the criteria of seriousness which the respondent had established as benchmarks. It was plainly open for the applicants to argue their case, with their Union’s assistance and for them to plead mitigation, which some did. Just because the interview panel found the absolute denials of three of the applicants to be unacceptable, does not mean that their arguments were not considered. Moreover, at least in Mr Sharkawy’s case, further information was sought about his stated lack of knowledge of the email system and his defence was found to be somewhat wanting.

[298] In addition, as earlier noted, at least in four cases, the recommendations in the spreadsheet were changed. I do not accept that the alterations were designed to give the impression that they were recommendations only. I believe it to be demonstrable evidence that the recommendations were just that - they were not final outcomes.

[299] Before leaving the interviews, I would make some comments on Mr Lane’s evidence. He accepted that, at no time, was he denied requests to speak to his members. He accepted that, at no stage in the interviews, did any of the applicants indicate that they wished to see the email images. Particularly given the active and no doubt forceful role of Mr Lane, it is difficult to sustain an argument that the applicants had been so poorly and unfairly treated that their dismissals were procedurally ‘harsh, unreasonable or unjust’.

8. The real reason for the dismissals was to save around $300,000 in future redundancy entitlements

[300] While it might appear to a suspicious Union official, and obviously disgruntled dismissed employees, that their dismissals in an environment of uncertainty over the Plant’s future, was a convenient way of avoiding prospective redundancy entitlements, the objective evidence in this matter does not support such a conclusion. This is so for the following reasons:

(a) There was no evidence brought by the applicants to demonstrate that any of those persons who made the decision on the applicants’ futures were under any direction to dismiss long standing employees simply for the purposes of absolving the respondent from redundancy payments;

(b) In the face of the unequivocal denials of Ms Thompson, Mr Taylor and Mr Burton that the matter was not even discussed, let alone considered, or taken into account, I accept their evidence on this issue. I can understand the interview panel members feeling dismayed and hurt by an accusation that they had wilfully and knowingly participated in a sham exercise. It was an unfounded allegation, thrown around, without any real basis in fact;

(c) The respondent was entirely within its rights, indeed it was obliged to undertake the investigation and take decisive action, based on a reasonable assessment of the culpability of employees in distributing inappropriate emails at the workplace. Indeed, it would have been, at best, negligent and possibly vicariously liable, if it had not;

(d) It was not as if there was any evidence that the employees were ‘set up’ by Management in order for it to secure an ulterior purpose. The evidence overwhelmingly demonstrated that many employees were involved in such conduct, including those who admitted to the conduct;

(e) Most significantly, however, it seems to me that if the respondent really had the objective of saving redundancy payments, it could have ‘lifted the bar’ as to who was to be dismissed. In my view, the respondent took a considered and responsible approach which was demonstrably fair for everyone;

(f) While I accept that none of the dismissed employees were replaced by permanent employees (but replaced by casuals), this was not an uncommon feature of the respondent’s operations. It does not lead to a conclusion that the respondent had an ulterior motive in dismissing the applicants. Moreover, it made perfect business sense not to engage permanent employees given the uncertainty over the Plant’s future; and

(g) I note that, at no time, during any of the interviews did Mr Lane accuse the respondent of dismissing the applicants to save on redundancy payments. Nor did he include this accusation in his statement to the Tribunal. In my view, given the seriousness of such an allegation, it was theory which required more than just a ‘hunch’ for it to be aired, let alone pressed formally in these proceedings.

9. Mitigating factors such as unblemished records of service, age, length of service and difficulty in finding alternative employment

[301] At par 295 of this decision I indicated that I accept the evidence of Ms Thompson, Mr Taylor and Mr Burton that they took into account each of the applicants’ records of employment and periods of service. However, they concluded, when balanced against the seriousness of the misconduct, that none of these matters taken, either individually or collectively, tipped their decisions away from a penalty of dismissal. I accept this analysis. Given that three of the applicants denied sending the inappropriate material, which I have found to be untrue, it follows that I have also found that these applicants were less than truthful in their responses during their interviews and during these proceedings. This, in my assessment, compounds the seriousness of their misconduct and would dispel any notion that their dismissals were unfair, let alone that they were deserving of reinstatement or compensation.

10. Further inappropriate emails discovered after dismissal

[302] The respondent relied on Mr Garnett’s additional inquiries after the applicants’ dismissals in which further emails were identified as having been sent, received or stored by Mr Darrel Batterham, Mr Usman and Ms Husar during the course of their employment. It was said by Mr Warren that this further evidence supported and strengthened the respondent’s earlier conclusions and the rationale behind their dismissals. There is no doubt that facts which existed at the time of an employee’s dismissal and, which subsequently come to light following further investigation, may justify both the original decision to dismiss the employee (as in the case here) or result in a new decision to terminate an employee. Authority for this principle is to be found in Lane v Arrowcrest Group Pty Ltd (1990) 43 IR 210, where at pages 237 to 238, von Doussa J said:

In my opinion it is still open to an employer to justify a dismissal by reference to facts not known to the employer at the time of the dismissal, but discovered subsequently, so long as those facts concern circumstances in existence when the decision was made. Whether the decision can be so justified will depend on all the circumstances. A circumstance, likely to favour the decision to dismiss, would be that fraud or dishonesty of the employee had caused or contributed to the employer’s state of ignorance. A circumstance likely to weigh against the decision would be that the employer had failed to make reasonable inquiries, which would have brought existing facts to its knowledge before the dismissal occurred.

[303] His Honour’s opinion was adopted by the High Court in Byrne & Frew v Australian Airlines Ltd (1995) 61 IR 32, where Brennan CJ, Dawson and Toohey JJ, said at page 43:

On the other hand, if an employer were to observe the actual misconduct of an employee in circumstances which allowed no innocent explanation, a summary dismissal might not be in breach of cl 11(a). And facts which existed at the time of a dismissal, but which come to light only subsequently, might justify the dismissal when otherwise it would be harsh, unjust or reasonable.

[304] I accept the respondent’s submission that it obtained further evidence of inappropriate email trafficking by Mr Darrel Batterham, Mr Usman and Ms Husar which supported its earlier decision to terminate their employment.

11. Other Findings on the Evidence

[305] Earlier in this decision, I made findings on the broader and common claims of the applicants, which were all made by them in defence of their positions, or in mitigation. I now make some additional findings on the witness evidence. I would emphasise that I have not made specific findings on every example where there is a conflict between the evidence of the witnesses. This would be both unproductive and a distraction from the focus which is necessary on the relevant issues in this case which I have discussed.

Ms Husar

[306] Ms Husar was one of the four applicants who acknowledged sending inappropriate emails. She accepted some were ‘rude’ and could be described as pornographic. Others were ‘horror’ emails. While I accept Ms Husar was contrite in these proceedings, there are four particular aspects of her evidence which I do not accept and which raise serious issues as to her credibility. Firstly, Ms Husar claimed that she had never received any formal or informal training on how to use the respondent’s email system. Even if this was true, it flies in the face of the uncontested evidence that she was a very competent computer user, who had trained other employees. She would have been well aware of what action should have been taken to resist others sending her inappropriate emails.

[307] Secondly, Ms Husar gave evidence that she thought the purpose of her disciplinary interview was to discuss her promotion to a position in Brisbane and she was therefore shocked when told it was a disciplinary meeting to discuss her sending of inappropriate emails. I find this evidence to be most implausible. Ms Husar, like the entire workforce, was well aware that an investigation into the sending of inappropriate emails had been undertaken and three employees had already been suspended. It would have been the subject of employee gossip and discussion from the canteen to the kitchen table. Moreover, as Ms Husar knew she was the sender of at least some dubious material, she would have been under no illusions that she would be questioned about it, at some point. It stretches credulity to breaking point to accept she entered the disciplinary interview blindly unaware of its purpose. In addition, I am fortified to this conclusion by the uncontested evidence that, at no stage during the interview, did she suggest that she believed it was about a Brisbane promotion; nor did she ever raise the matter with Mr Lane. If she truly believed she was called to a meeting unaware of its purpose, only to learn how serious it was, she would have, at the very least, said something about it, or more likely, would have strongly protested at being ‘ambushed’ in such a way. She did neither.

[308] Thirdly, I find it very strange that Ms Husar would ‘log on’ to her computer, before ‘bundying on,’ at the start of her shift. I am not quite sure what this evidence was intended to prove; except perhaps that after she’ logged on’ and left her computer, someone accessed her email account. However, it is even more curious in Ms Husar’s case, as she had a record of being late for work. Surely, she would have wanted to clock on as soon as she arrived at work. To do what she said she did, she would have had to back track, but in any event, the FT120 computer which she said took time to load, was not the computer she used to access her emails. Moreover, it makes absolutely no sense and is contrary to good occupational health and safety practice, for employees to ‘bundy on’ after commencing work. I note that Ms Husar could offer no evidence from anyone who could corroborate her ‘bundying on’ practice.

[309] Fourthly, there was no evidence that Ms Husar was ‘targeted’ for dismissal because of a workplace injury and workers’ compensation claim. This belief was little more than ‘a red herring’ thrown into the mix, in circumstances where the respondent had a valid reason for dismissing her, particularly given her admissions as to her conduct.

Mr Sharkawy

[310] At paragraph 278, I referred to Mr Sharkawy’s claims that he did not know how to access or distribute email material. I find it incredible, given his university education, his previous work experiences in hospitality, and despite the fact that he had been a Union delegate for seven years, that he claimed he did not understand words such as ‘pornography,’ ‘obscene,’ ‘sexual,’ ‘explicit,’ or ‘offensive,’ I note that he used the term ‘explicit’ in his own statement and gave an unresponsive answer as to how it came to be there. Unfortunately, I believe Mr Sharkawy feigned his real knowledge and understanding of English and asked for an Arabic interpreter in order to demonstrate to FWA that he had a very limited understanding of English and therefore he did not know how to send emails and it was never explained to him what unacceptable behaviour was. Having observed Mr Sharkawy in the witness box, it was clearly apparent that, on many occasions, he knew more about what he was being asked, than what the interpreter understood from the questioning! He was unresponsive and evasive and not because of a lack of understanding of English. I believe he was deliberately so. In addition, I reject his evidence that he did not know how to send or store emails. To maintain this stance in the face of innocent emails he had actually sent and five of his colleagues who said he did know how to use the email system, is incomprehensible. When asked about an email sent from his account to Mr Guzelon 14 December 2009, at 6:07pm, he firstly claimed he was playing dominoes in the meal room at 7:08pm (which was the time he would have been on a break) but then could offer no explanation for how this email came to be sent at 6:07pm.

[311] Two other matters are deserving of mention. Firstly, Mr Sharkawy had initially told Mr Chhabra that he had never attended any training. He must have known that this was incorrect. Secondly, he claimed that he had never received any previous warnings. However, he was counselled in 2009 for a breach of the respondent’s Diversity Policy. Mr Sharkawy’s evidence was, at best, less than honest and was unreliable. It follows that his misconduct was compounded by his less than frank answers during his disciplinary interview and his evidence before the Tribunal. In short, I found Mr Sharkawy to be a witness of little credit. To the extent his evidence conflicts with the evidence of the respondent’s witnesses, it is their evidence which I prefer.

Mr Usman

[312] Mr Usman also has a University Degree and a Diploma in Business. Given this experience, I cannot accept his contention that he did not understand the consequences of what he was doing. At least Mr Usman admitted that a number of the emails he had sent were pornographic and he would not have sent them to his wife. He also agreed that during the Diversity training, Mr Bassini had spoken of pornography being strictly out of bounds. In light of this frank evidence, it makes the evidence of his co-applicants on this issue to be somewhat shaky. Even so, given the amount of training, Mr Usman and the others received there is some attraction to Mr Warren’ssubmission that no amount of training would have changed any of the applicants’ behaviour leaving the respondent with few, if any, other options, but dismissal.

Mr Agius

[313] The unique aspect of Mr Agius’s evidence was his belief that the respondent had decided to dismiss him prior to his interview because he received a phone call ten minutes before the interview asking if he was sick as the person who called was to replace him on the next shift. The person who allegedly called Mr Agius did not say that he knew he was to be dismissed; otherwise why would he ask Mr Agius if he was sick? While I accept, with hindsight, that Mr Agius may have genuinely felt this way, the fact remains that he had admitted to sending some of the offensive emails attributed to him. Mr Agius’s case was not helped in that he sought to ‘sanitise’ his account by deleting the ‘sent items’ folder soon after 16 December 2009, when he obviously knew the investigation had commenced. In any event, Mr Burton gave evidence, which I accept, that he was unaware of anyone being called in to replace him. Even if someone in authority had presumed that Mr Agius might be dismissed and may have been acting on that assumption, the real question is whether there is corroborative evidence that the respondent’s decision had been made before the interview. There was no such evidence.

Mr Kroegel

[314] Unfortunately, I found Mr Kroegel to be a most unconvincing and unreliable witness. He was not even prepared to accept self evident propositions. Mr Kroegel was one of the three applicants who denied ever sending and/or storing inappropriate emails, despite accepting that he often received them and merely dumped them into his inbox. I note that he never complained to either the senders of the emails or a supervisor when he received such emails. Given his role as the Chairman of the Occupational Health and Safety Committee, his failure to do so is inexplicable and unacceptable. There are, however, three disturbing aspects of Mr Kroegel’s evidence which convinces me that his denials of never sending inappropriate emails are implausible and untruthful. Firstly, one wonders why Mr Kroegel would retain numerous inappropriate emails in his inbox if he did not either, intend to view them again, or send them on to others? Secondly, Mr Kroegel would have the Tribunal accept as plausible a chain of numerous emails from his email account as being sent by someone else. I do not accept these claims. Thirdly, and importantly, Mr Kroegel unknowingly gave himself away during his interview when he said ‘I know a lot of people did (it) not just me’. (my emphasis)

No amount of clever word manipulation or ‘hockery pockery’ can eliminate the obvious intention of this statement. Mr Kroegel was defending himself, as every other applicant did, by claiming everyone else was doing it and he was not the only one. And so it was - he was involved in trafficking inappropriate emails in the workplace and he was less than truthful in denying never having done so.

Mr Darrel Batterham

[315] Mr Darrel Batterham accepted that he had sent inappropriate emails, that he understood the allegations against him and had admitted to sending some of the emails during his interview. He also knew that it was prohibited to send sexually explicit or obscene material. Mr Batterham said initially he did not think it was the right thing to do to allow other employees the use of his computer. However, at no time did he complain about receiving such emails, including from his brother.

Mr Ronald (David) Batterham

[316] Mr David Batterham claimed he had received inappropriate emails, but had never sent any. There was some dispute as to whether Mr David Batterham had admitted in his interview to having said: ‘I have been involved in sending sexy emails.’ Ms Thompson, Mr Burton and Mr Taylor all attest that he had made this admission. Mr David Batterham claims that he had said the opposite: ‘I have not been involved in sending sexy emails.’ Of course if the former quote is correct it nails his absolute denials as being untruthful. In my view, like Mr Kroegel, Mr David Batterham unknowingly - but truthfully, at least to that extent - said something which has now come back to haunt him. Faced with his later absolute denials, he had no option but to challenge the respondent’s witnesses on this evidence. However, in light of other evidence unhelpful to Mr David Batterham’s case, I do not accept his version of the conversation.

[317] Mr David Batterham also claimed that there was a calendar in the control room above the computers, upon which he wrote his password, so it could be used by other employees. He would change it monthly as his password changed. I find this claim to be an utter fiction. Mr David Batterham could not produce the calendar and had never seen anyone using his account. No witness gave any supporting evidence as to having seen such a calendar. His supervisors said they had never observed a calendar in the Control Room with passwords written on it. However, the most unbelievable piece of evidence (perhaps in the whole case), concerned Mr David Batterham’s explanation for an inappropriate email sent at 7:11pm on 16 December 2009, from his computer. He accepted that two innocent emails were sent by him at 7:09pm and 7:13pm; that is, either side of the inappropriate emails in the space of four minutes. In other words, Mr David Batterham would have the Tribunal believe that some person, unknown to him, must have used his email in a four minute time span, when he had got up from his computer, left the room and he then returned to make the 7:13pm email. This is utterly fantastic and completely unbelievable.

[318] Further, Mr David Batterham would have the Tribunal believe that the numerous emails identified as flowing back and forth between him and his brother, Mr Darrel Batterham was a mere coincidence. I reject this assertion. Another damning piece of testimony was his explanation as to how it came to be that in December 2009, soon after the investigation commenced, his email inbox was cleaned out, leaving presumably (unknowingly to him), the inappropriate emails in another ‘mail leave’ box. He claimed that someone else must have saved them there. If this was true, it meant that someone else opened his email, moved the material from his inbox and put it in another ‘mail leave’ box. Aside from the unlikely reason why someone else would go to this trouble for no apparent gain for themselves, I find this explanation to be utter nonsense. In my view, Mr David Batterham was not a credible or truthful witness. Where his evidence differs from that of the respondent’s witnesses, it is the latter which is to be preferred.

Respondent’s Witnesses

[319] As I have earlier indicated, I prefer the evidence of Mr Taylor, Ms Thompson and Mr Burton where it is in conflict with that of the applicants and Mr Lane. In particular, I accept that the members of the interview panel took all relevant information, provided by the applicants and Mr Lane, into consideration. While I accept Mr Shoebridge’s criticism of Mr Taylor, I would not characterise aspects of his evidence as deliberately untruthful. Certainly he was prone to exaggeration, such as when he suggested employees were playing games or sending inappropriate emails for up to six to eight hours a shift, or when he claimed this case cost the respondent more for lawyers than savings in redundancy pay. However, Mr Taylor’s insistence on colouring his evidence to give a favourable gloss to the respondent’s case, did not, in the ultimate result, impugn the respondent’s case such as to destroy its essential soundness. It was plain that Mr Taylor was less than happy with Mr Shoebridge’s questioning style (and Mr Shoebridge understandably honed into Mr Taylor’s susceptibilities). Mr Taylor appeared to resent many of Mr Shoebridge’s questions and was argumentative and cavilled with questions he did not like. Others he would not answer directly. This was not the case in respect to Ms Thompson and Mr Burton’s evidence who, in my assessment, gave clear, rational and consistent testimony.

[320] I also accept the evidence of Ms Belcher, Ms Goh, Mr Bassini, Mr Pirie, Mr Guzel, Mr Laroza and Mr Babu. Mr Guzel, as a Union member, gave evidence against his fellow Union members. It was asserted by Mr Shoebridge that the supervisors’ evidence as to not asking employees to share email passwords and not condoning the practice, was false because if they had made these admissions, they too would be in breach of the respondent’s polices and might face further disciplinary actions. This is a very serious and unlikely assertion, given that it would have meant persons in a supervisory capacity, had not told the truth in these proceedings. In my view, assertions of this kind, that is, direct attacks on the total credibility of a witness, require a high bar of cogent evidence to support. In closely observing all of the supervisory witnesses in the witness box, and accepting their understandable nervousness about giving testimony in the Tribunal, I could not detect from their demeanour, or their answers, that they were attempting to conceal the truth. In particular, I found Mr Chhabra to be an impressive and forthright witness. He was a very credible witness whose explanations and denials of the applicants’ claims about them, all had a ‘ring of truth’.

[321] Further, I reject Mr Shoebridge’s criticisms of Mr Garnett’s evidence. He was called as an expert witness and no evidence was called to counter or challenge Mr Garnett’s evidence and assumptions. I consider that Mr Garnett was well placed to make the findings and conclusions he did, and I accept his evidence.

[322] Finally, Mr Shoebridge’s thorough and exhaustive cross-examination of the respondent’s witnesses as to what is possible in respect to other persons accessing the computers, does not answer the more relevant question of what is more likely to have happened, on the balance of probabilities. Of course it is possible that employees:

• shared email access;



• logged on to ‘open’ computers;



• gave their account details to others;



• knew how to access computers other than their own; and



• could have multiple ‘log ons’.

It is trite to say that the computer world is riddled with endless possibilities. However, that does not take this case very far. Mr Shoebridge’s clients sought to prove improbabilities. In my opinion, they failed to do so.

[323] It might be observed that it would be open for the Tribunal to modify the penalty of dismissal for some of the applicants, in light of my findings on the evidence and distinctions between their particular circumstances; noting, in particular, the admissions of some the applicants in contradiction to the abject false denials of others. However, it should be steadily borne in mind that the primary defences of all of the applicants as discussed in par 4, were all the same. Even so, I cannot discern a strong enough weight in favour of some of the applicants in either mitigation, or seriousness of the misconduct, which would warrant a different conclusion than that ultimately determined by the respondent.

[324] I turn now to the specific requirements of s 387 of the Act and make the following findings.

[325] In my view, each of the applicants’ dismissal for misconduct, in that they either sent, received and/or stored inappropriate emails at the workplace, constituted a valid reason for the purposes of s 387(a) of the Act. All of the applicants were notified of the reasons for their dismissals, either at the beginning of the disciplinary meeting, and more likely they were fully aware of the reasons for their dismissals well before their disciplinary interviews. Each of the applicants were given a fair and reasonable opportunity to respond to the reasons for their dismissals and were permitted at least one break in the disciplinary interview to consult with their Union representative. At all relevant times, the applicants’ Union official was made aware of the investigations, was briefed by Management and was present at each of the disciplinary interviews and could have sought adjournments at any time. While subsection (e) relates to warnings of unsatisfactory performance, it is patently clear that the applicants were all warned about the misconduct for which they were dismissed and knew the consequences of not complying with the respondent’s policies in that regard. Moreover, these warnings were given on at least four occasions prior to the dismissals and the last such training was only a couple of months earlier. Subsections (f) and (g) are not relevant to these applications. The other matters I consider relevant to these applications has been extensively canvassed throughout my decision (subsection (h)).

[326] Accordingly, for the aforementioned reasons, I find that the dismissals of Mr Darrel Batterham, Mr Ronald (David) Batterham, Mr George Sharkawy, Mr Nicholas Agius, Mr Siegbert Kroegel, Mr Kashif Usman and Ms Natalie Husar were not ‘harsh, unreasonable or unjust’, either substantively or procedurally, within the meaning of s 387 of the Act. The applications, must therefore be dismissed. An order to that effect, accompanies this decision.

DEPUTY PRESIDENT

Appearances:

Mr D Shoebridge of Counsel for the applicants

Mr R Warren of Counsel for the respondent

Hearing details:

2010

SYDNEY

5, 6, 9, 13, 14, 20 and 21 July; 12 and 18 August

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