Dean Hipworth v The Trustee for the Phillip Island Real Estate Unit Trust
[2025] FWC 615
•28 FEBRUARY 2025
| [2025] FWC 615 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 – Unfair dismissal
Dean Hipworth
v
The Trustee For The Phillip Island Real Estate Unit Trust
(U2024/6927)
| COMMISSIONER PERICA | MELBOURNE, 28 FEBRUARY 2025 |
Application for an unfair dismissal remedy
On 15 June 2024, Mr. Dean Hipworth made an application under s 394 seeking compensation, alleging he had been unfairly dismissed from his employment with The Trustee for the Phillip Island Real Estate Unit Trust (“the Trust”). The Trust is the employer of a real estate business which trades as O’Brien Real Estate.
Mr. Hipworth commenced the proceeding before he was terminated on 17 June 2024. The Trust initially opposed the application on that basis. At the hearing, I ordered this irregularity be waived using my power under s 586(b).
The matter was heard on 9 December 2024. Mr. Hipworth represented himself and gave evidence. Ms. Jodie Hanssen, who is a Director of the Trust, represented it and gave evidence. Ms. Jane Daddo, the General Manager (Sales) of the Trust and Ms. Kellie Morgan, the General Manager (Property Management) also gave evidence at the hearing.
For the reasons I set out below, I am not satisfied Mr. Hipworth was unfairly dismissed within the meaning of s 385 of the Act.
When can the Commission order a remedy for unfair dismissal?
Section 390 of the Act provides that the Commission may order a remedy if:
(a)the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b)the Applicant has been unfairly dismissed.
Both limbs of this section must be satisfied. I am therefore required to consider whether Mr. Hipworth was protected and whether he has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the Act provides that a person is protected from unfair dismissal, at a time if, at that time:
(c)the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(d)one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
It was not contested that Mr. Hipworth was a person entitled to protection from unfair dismissal.
When has a person been unfairly dismissed?
Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a)the person has been dismissed; and
(b)the dismissal was harsh, unjust or unreasonable; and
(c)the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d)the dismissal was not a case of genuine redundancy.
Mr. Hipworth’s employment with the Trust ceased on 17 June 2024. He lodged his application before he was dismissed, an irregularity I waived. There can be no issue that he filed his application within the requisite period.
The matters referred to at points (a), (c) and (d) are not in issue. The contest in this proceeding is whether Mr. Hipworth’s dismissal was harsh, unjust or unreasonable within the meaning of s 385. Before turning to consider that question, it is convenient to set out some of the factual background relevant to the proceedings.
BACKGROUND FACTS
Mr. Hipworth commenced employment with the Trust on 7 October 2022 as a salesperson.
The Trust has an Employee Handbook which contains various company policies including a policy regarding behaviour at work which relevantly provides:
8.1 BEHAVIOUR AT WORK
You should behave with civility towards fellow colleagues, clients and members of the public, whilst at work. Rudeness will not be permitted. Objectionable or insulting behaviour or bad language may result in disciplinary action up to and including termination.
You should use your best endeavours to promote the interests of the Employer and shall, during normal working hours, devote the whole of your time, attention and abilities to the Employer and its affairs.[1]
The Handbook in evidence has an “employee handbook acknowledgment form” which is not signed by Mr. Hipworth.[2] There was no evidence how the attention of Mr. Hipworth was drawn to this document either at the commencement of his employment or otherwise. The submissions of the Trust on the policy use the Delphic phrase “company policy was available to employees.”[3] This does not establish that it was ever brought to Mr. Hipworth’s attention.
There is evidence Mr. Hipworth attended a compulsory bullying and harassment course on 10 August 2023.
MR. HIPWORTH’S ENGAGEMENT WITH MANAGEMENT PRIOR TO 7 JUNE 2024
8 October 2023 meeting with Ms. Hanssen and Mr. Dunstan
The first formal engagement with management concerning his performance was in October 2023. Mr. Hipworth gave evidence about what transpired at this meeting.[4]
MR. HIPWORTH: “The meeting was held because Ms. Hanssen had asked me to reply to something in email, and I had said to a number of staff members that I wanted to talk about it, and I was told no, I had to reply in email. Eventually then I was told to attend a meeting, which was with Jodie Hanssen and the then general manager of sales Josh Dunstan.
… Jodie Hanssen basically telling me that I thought I knew how to run the company better than she did, and that I had better pull my head in, pull my socks up, and a number of other things.
COMMISSIONER: And how did you respond to that?
MR. HIPWORTH: Well, one of the comments she made to me is that I only contact her when I was at home (indistinct) drunk, which sort of took me back a bit, and that was one of the reasons why I did not want to attend the second meeting as per the request on June 2024.
COMMSSIONER: All right. I am still not clear what you responded in that meeting?
MR. HIPWORTH…I said, 'No, I have not been trying to run the company better than you.' I have not been - what's the right - I had not been undermining her as the director of the company, and that I was just going to go back out and that I was also questioning who, you know - you know, there was actually no questioning of my modus operandi or why aren't you ringing 20 vendors. It was actually nothing to do with that. That meeting was purely about - - -
COMMSSIONER: It was a policy insofar as you not to talk on the phone, but to email; is that it
MR. HIPWORTH: Pretty much.
Ms. Hanssen also gave evidence about that meeting:[5]
“Page 88 to 98 is our sales policy for the team to follow, and that's we share with the team since November 22 before Dean started I believe, or maybe just after, and we rely on the team following those processes.
Dean would consistently breach the processes, and when we would follow up we would get I guess quite blunt and dismissive emails in response, and Dean's failure to follow the processes was causing issues in the business. I had some team members expressing that they were fearful of him and felt intimidated. So eventually I arranged a meeting with Dean and then general manager Josh, general manager of sales, Josh, to talk about that.
In that meeting I expressed to Dean that I was getting consistent feedback that he was very vocal about all the things that we do wrong, that he was consistently not adhering the process and that I required him to do so. I referenced the fact that I would often receive aggressive emails or texts from him in the evening, and at that point I suggested to him, 'Dean, I recommend that if it's in the evening and you've had a few drinks and it's probably not the time to text me or email me' is what I said, and that was me just essentially advising him I didn't appreciate the type of emails and texts that I would receive at night from Dean. And then he would conduct himself differently the next day on the phone, and that's what led me to the assumption that maybe in the evening he's had a few drinks, probably best not to do that which was how I expressed it to him. In that meeting he assured us, Josh and myself, that he would start to comply with process and be a cohesive team member, and I guess over time that didn't really continue. We would often have challenges…”
MS. DADDO’s EVIDENCE ABOUT HER RELATIONSHIP WITH MR. HIPWORTH
Ms. Jane Daddo, who has been the General Manager of Sales at the Trust since 15 January 2024, gave evidence and adopted a witness statement which was received into evidence as R3.[6] In that witness statement, she described her working relationship with Mr. Hipworth as follows:
“• She has had to resolve several issues relating to the applicant’s behavior and professional conduct since the commencement of her employment and has been consistently verbally abused by the applicant.
· She has received numerous phone calls from the applicant after business hours in which he would make abusive comments towards the business, the director and other employees.
· She has tried to work with the applicant to assist him in finding the workplace more enjoyable.”
Ms. Daddo elaborated on these points in her oral evidence[7]. She said:
· In the evenings, about “once a week” she would receive calls from Mr. Hipworth “ranting and raving and using language”.
· He was “often yelling about his frustrations with the Company”. Most of it “was around policies and processes that are in place in the company, and my role was to enforce those”. Mr. Hipworth would say the policies and procedures were “a fucking joke”. There were several incidences that she had to manage him.
· An example of the abusive comments he would make towards the business, the director and other employees included: “the company director had 'her head so far up her arse… and that included me as well”.
· Mr. Hipworth “hung up on her, which was a regular occurrence”.
Mr. Hipworth did not seek to refute this evidence in any reply material or in cross examination.
THE 7 JUNE COMPLAINT BY THE TENANT
The making of the complaint to Ms. Morgan
On the morning of 7 June 2024, Briony, a receptionist at the Trust received a phone call from a tenant who recently had dealings with Mr. Hipworth. She was put through to Ms. Morgan. Ms. Morgan gave the following evidence concerning that conversation:[8]
MS. MORGAN: … I just advised the [the Tenant] who I was, that I was the general manager for property, and that Briony had advised me that she might need a bit of help, how could I help. She was quite distraught on the phone. She was crying - - -
…She says that she didn't know what to do, that she was quite upset, and – it's a bit difficult through her tears – that she didn't know if I could help at all, and that she felt threatened in her own home.
That she asked me for help with regards to she felt uncomfortable, that she had been told that there was an inspection happening by a friend. The friend had actually seen the (indistinct) the advertisement of an open home at the property. The tenant herself hadn't seen that. She had just arrived home from the hospital. She had her child in at the Royal Children's Hospital for the last few – you know, for the last few evenings before this took place, and she was quite upset.
… she said she had not heard from Dean at that time, that she had not received any missed calls from Dean. She had only just found out that the inspection was to take place, and then she received the phone calls from Dean that morning that caused her distress.
COMMISSIONER: What did she say about those?
MS. MORGAN: That they were very aggressive, that he swore at her. She didn't tell me what he said. Her partner was with her at the time and he told her to call the property manager to seek help with the situation.
I reassured her that through our processes that we didn't support what was happening, and that I would follow it up with a director, through our director, being Jodie, and that if she did receive further phone calls to not accept them at this time, and to contact myself as the general manager directly until we resolved it.
…
Next is I spoke directly to Jodie, who confirmed straightaway that she would investigate further and keep it between herself and the general manager of sales, being Jane, that they would manage what happened next there with Dean, and - yes, and she asked me to just put in writing across to her any events that had taken place in the phone call, that had taken place, which I believe is actually in the evidence today, the email that I ended up sending through.
At 1:09 PM on 7 June 2024, following her discussion with the tenant and Ms. Hanssen, Ms. Morgan sent an e-mail to Ms. Hanssen which relevantly stated:[9]
“Just to confirm that my follow up discussion with [the Tenant] from 9 Narrows Way, Newhaven involved her very upset and emotional and she mentioned multiple times that Dean threatened her.
She feels unsafe and does not want any further communication with him moving forward. I have reassured her that our Property Management team will be the ones to reach out for any further access for sales inspections. As mentioned earlier as well, I have also confirmed that Dean will no longer be in contact with her. I have given her instructions to not answer his calls and to advise me directly if he attempts to contact her. It would be greatly appreciated if we could be updated on which agent will attend the property for sales inspections moving forward, and we will update [the Tenant] accordingly.
With regards to the issues of the open home inspection, when I asked [the Tenant] about the situation she mentioned the following:
1. She confirmed with me that she has not received messages from Dean. She has only received the heated phone calls today from himself advising that:
a. The Open will still be going ahead as he called multiple times, however admitted it was to a wrong number, however that did not matter and he would be doing the open home anyway.
b. That [the Tenant] should feel grateful to Sean the owner, as he has attended the property to do the upkeep that she should have been doing herself. (Note the owner attended the property without prior notice being given, however Dean was aware of him going there. No contact was made to the PM team about this other than the Renter calling us to complain at the time).
3. That he has been doing this job a long time and that she was making him look bad to his managers and that this was all her fault and he was not happy and he would still be attending the open home tomorrow whether she liked it or not.
Jodie & Jane, I am concerned with how this entire situation has been handled by Dean as a representative of Obrien Judith Wright and the complete lack of professional conduct with a client and also disrespect to our own team but not following normal process and working with the Property Management team.
Please let me know if you need anything further from my end at this time? The Renter has been instructed not to take further calls from Dean and to advise me directly if he attempts to reach out any further.”
Ms. Morgan in her evidence confirmed that this e-mail was “an accurate recitation of the things she was told on the telephone”.[10] The substance of the e-mail was prepared using notes she had made while talking to the tenant.[11]
Mr. Hipworth’s account of his interaction with the tenant
Mr. Hipworth refuted the account given to Ms. Morgan by the tenant in his oral evidence:
“The only discussion I had with this tenant was she contacted me and said - I already knew she'd been in hospital with her child, so there's a back story, and so she said, 'Don't contact me till the Thursday, because I'm having some fairly major medical procedures, myself and my child.' I then on the Thursday text her that I was doing the open for inspection. Then she rang me on the Friday and she said, 'I never got your text, and the only reason I know about it I happened to be looking through the for sales pages of realestate.com because we're looking to buy a home.'
Yes?‑‑‑I know that's not true, because they were behind in the rent and all the other things. So they're not a buyer. So she did receive the text, and I then sent her and said, 'I actually sent it once to the wrong number. Here it is, I did send it.' That was the catalyst for the next conversations that went. In all of this what I did tell her was, 'Currently the landlord has the right to do open for inspections. If I've made a mistake here that's fine, but the landlord will open it and keep opening it whether you like it or not, because that's his right.' There was never any discussion that I was going around to the person's house, ever. Why would you do it, and why would - and the assertion that you're going to apparently do open for inspections in the middle of the night, once again just why would you do it.[12]”
CONVERSATIONS BETWEEN MR. HIPWORTH, MS. HANSSEN AND MS. DADDO AROUND 7TH OR 8TH JUNE
Following the complaint and the reporting to Ms. Hanssen and Ms. Daddo, there was a series of telephone conversations between Mr. Hipworth and Ms. Daddo, and Mr. Hipworth and Ms. Hanssen, that must have occurred over the course of 7 and 8 June 2024. Mr. Hipworth’s evidence was that in those conversations:
· He was informed management had been “contacted by the tenant, or someone in the office had been contacted by the tenant, and that the tenant was making all these alleged claims”.[13]
· He was instructed not to attend this open for inspection and he was not to contact either the vendor or the tenant.[14]
· “Mr. Hipworth was quite abrupt or irate and upset …, and I said something like, 'Doesn't anyone believe me, what the hell's going on', something along those lines. I can't tell you word for word, and I was going, you know, 'This is just not right. It's not what I said to the tenant. They are telling lies”.[15]
ATTEMPTS TO SET UP A MEETING TO DISCUSS THE COMPLAINT
One of the conversations between Mr. Hipworth and Ms. Daddo (or Ms. Hanssen) must have been just after Ms. Hanssen was informed of the complaint. At 12:37PM on 7 June 2024, Ms. Hanssen sent a “Google Meet” invitation for a meeting between Mr. Hipworth, Ms. Daddo and Ms. Hanssen for 9:30AM on 11 June 2024.
At 4:39PM on 8 June 2024, Mr. Hipworth sent an e-mail which included the following request:
“Can you please forward to me a copy or list of the alleged accusations made against me by this tenant. I do not feel comfortable attending any meeting without full written disclosure by the company.”[16]
At 4:56 PM on 8 June 2024, Ms. Hanssen responded:
“The intention of the meeting is so that you can give us your version of events, we can then investigate the matter. We will provide the details of the tenants claims also, I will email tomorrow”.[17]
On 10 June 2024 at 12:22 PM (which was the King’s Birthday holiday), Ms. Hanssen forwarded an e-mail to Mr. Hipworth which read: “please see below the claims made by the tenant. We will meet tomorrow morning to discuss this. Can you please have your timeline of events prepared accordingly.”[18]
At 5:39 PM on 10 June 2024, Mr. Hipworth responded to Ms. Hanssen at length. He states he had legal advice to “make no further comments about the matter”:
“I must state that I am not looking to have a fight here with anyone about anything in this matter. I have just finished meeting with my lawyers after I had already forwarded to them every piece of correspondence that I have received from yourself regarding these allegations.
I will not be making any further comments regarding this matter other than to say this, I totally refute all of the allegations contained in the email of Kellie Morgan as these allegations talk of threatening nature and now the safety of a member of the community due to my alleged actions.
I concede that I did have a phone conversation with a person who resides at 9 Narrows Way Newhaven and I did speak to her about my vast experience in real estate and I did say to her every tenant has a great deal of rights and so does the landlord but in most instances it is always a much better outcome for all if everyone is working together to achieve a common goal for all involved. I made it very clear to the tenant that I fully embraced and respected their rights as tenants.
I am entitled to say nothing more and rely solely upon whatever this person wants to allege against me
I have already engaged my own legal representation in this matter should the need arise for them to make their own investigations and/or take sworn statements from any of the staff that have become involved in this matter moving forward which would also include the tenant and her partner also.”
On 8 June 2024 at 8:09 PM, Ms. Hanssen wrote: “our expectation is that you attend the 9:00 AM meeting to discuss this matter. You are welcome to bring your legal representative or have them attend via phone.”[19]
On 8 June 2024 at 8:12 PM, Mr. Hipworth responded: “I respectfully decline to attend the meeting. As is my legal rights at the workplace.”[20]
On 8 June 2024 at 8:48 PM, Ms. Hanssen sent a further e-mail: “Please have your legal representative call me in the morning.”[21]
On 8 June 2024 at 8:55 PM, Mr. Hipworth responded:
“I have been advised to say absolutely nothing to you or anyone else about this matter.
I also understand fully you have your own legal rights and subsequent legal actions at your disposal as an employer.
So nothing has changed tonight whatsoever so I will not be attending any meetings and my lawyers will not be engaging with you.
Once again when and if these allegations must be defended by myself then everybody will be put on notice and at that point and not before then I will make my very deliberate sworn testimony about what I say happened.”[22]
At 9:06 PM that evening, Ms. Hanssen made one last attempt to convince Mr. Hipworth to attend:
“We are simply asking to meet with you and discuss the matter. There are accusations against you and this impacts our workplace.
We are entitled to meet with you to discuss matters that impact your employment and our company.
Refusal to discuss the matter is not an option unfortunately.
Please make arrangements for yourself or your representatives to attend so we can discuss the matter and attempt to resolve it.”[23]
Mr. Hipworth was adamant in his response:[24]
“Once again I must reiterate my legal rights to say nothing. Whatever else you want to chose to do in this matter is your choice and your right.”
In his evidence, Mr. Hipworth gave two reasons he asserted his “legal right to say nothing”:
· Because at the October 2023 meeting Ms. Hanssen had called him a “drunk” and said “You are only to ring when you are home, text me when you're drunk”, I just thought I've put everything in writing, I wasn't going to subject myself to that.”[25]
· He was advised by his lawyers that “if these allegations that the person said, that they are scared to leave their house because you threatened them, that you well could face criminal charges. That's what they told me.”[26]
If the advice was to assert a right against self-incrimination, this advice is curious. No criminal proceedings or investigation seems to have been contemplated or on foot. Mr. Hipworth fulsomely denied making such a threat. In those circumstances how can a denial and a detailed explanation of what occurred incriminate him?
STAND DOWN, COMMUNICATION WITH STAFF, CUSTOMERS AND OTHERS ABOUT MR. HIPWORTH’S EMPLOYMENT STATUS
Email to staff about standing Mr. Hipworth down
10 June 2024 was the King’s Birthday holiday. The next day on 11 June 2024 at 9:40 PM, Ms. Hanssen sent broadcast e-mail to all staff:
“Dean Hipworth has been stood down from our business until further notice.
Please do not put calls or clients in contact with Dean. Anyone asking for Dean should be referred to Jane.
Your dept manager will advise you on any other steps required by your dept.”[27]
Stand down e-mail
At 9:53AM that morning, Ms. Hanssen sent an e-mail to Mr. Hipworth standing him down.[28] That e-mail read:
“As you are aware there was an incident last week regarding failure to comply with policy regarding inspections at a tenanted property and a situation with a tenant advising she felt threatened by your conduct.
There were also some calls with your direct manager (witnessed by other staff) that were reported as being angry and aggressive in nature.
Subsequently, we requested a meeting with you at 9am today to discuss these issues and review//consider your version of events.
You have declined to meet with us, and as a result we have no choice but to stand you down from work at this time.
As a result, you have no access to our systems, and I remind you that the listings you had in play/under current authority are listed under our agency and licence and therefore are not to be contacted by yourself at this time.
You are not to attend our offices other than the reception area, should you require any items from the offices, please email me or Jane and we will arrange for the items to be left at reception for you.
Any funds owed to you will be paid accordingly upon the return of your keys and any other collateral that belongs to the business (e.g. OFI signs).
Should you wish to discuss the matter further. I request that all communication take place (in writing) via email or text please.”
Purdie e-mail
At 4:07 PM on 11 June 2024, Ms. Jane Daddo sent an e-mail to one of Mr. Hipworth’s major clients, Mr Andrew Purdie, (“the Purdie e-mail”) in the following terms (with emphasis added).
“I have just tried to call your mobile and could not get you.
We wish to advise you the Dean Hipworth is no longer in our Employ. I would like to discuss this with you and in relation to how this will relate to the sale of your land”[29]
In an e-mail to the Commission dated 9 October 2024, Mr. Hipworth explained “shortly after receiving [the Purdie e-mail] from Mr. Purdie he got a phone call from him asking for an explanation”. He explained, “Shortly after receiving this e-mail I started receiving other phone calls from my clients…saying they had been contacted by someone at [the Trust] and them being advised that I was no longer employed by the company”.
In her evidence, Ms. Daddo provided a baffling reason why she expressed Mr. Hipworth’s employment status as being “no longer in our employ”.
“…I was reading it from Andrew Purdie's perspective, it said that he's no longer in the employ, but I was, in my mind, thinking that Andrew could think that Dean had resigned. So, I didn't want – Dean's got a long relationship with him. As he said, I didn't want to put on him to say that he'd been stood down pending investigation. But in hindsight it was – I mean when I read the rest of the email there was obviously a lot of confusion that day.”[30]
Ms. Daddo went on to explain it was a “mistake of expression”[31] and “I did not want to say to a long-term client of Dean’s that he had been stood down”.[32]
In cross examination, Ms. Daddo denied sending any other e-mails to Mr. Hipworth’s clients.[33] It was her evidence that the Purdie e-mail was the only one.
MR. HIPWORTH: How many other emails did you send out to other people similar to that email?
MS. DADDO: None.
MR. HIPWORTH: Why did you feel it necessary to send that one to Andrew Purdie?
MS. DADDO: Because he's a major client of O'Brien Real Estate as well as yourself.
MR. HIPWORTH: But I had 10 other current clients. Why didn't they get a letter?
MS. DADDO: Well, Andrew was the first one off the rank.
MR. HIPWORTH: And knowing that I've known him for 30‑plus years, you didn't think that I'm not going to tell him the truth that I'm being terminated?
MS. DADDO: No, I didn't.
Hipworth’s response to the Stand down letter
On 12 June 2024 at 10:25 AM, Mr. Hipworth sent a response to the stand down e-mail:[34]
“I am writing to formally dispute the recent decision to stand me down from work and to seek urgent clarification regarding my employment status. It appears that the procedures followed have not aligned with the Fair Work guidelines.
On June 11th, I received an email stating that I had been stood down from work. However, this communication did not clarify whether this action constitutes a termination of my employment. Despite this ambiguity, emails were sent to clients on the same day, stating that I am no longer employed with the business. This has caused significant and irreversible damage to my professional reputation as a sales agent and has had and will continue to have severe financial implications for me that now must be addressed and corrective further legal action now must be taken.
Furthermore, I have been threatened with the withholding of my pay until equipment is returned, which is a breach of Fair Work guidelines and Australian Employment Law, which raises further concerns regarding the adherence to proper termination procedures. To resolve this matter, I request immediate clarification and confirmation on the following points:
1. Employment Status: Has my employment been terminated? If so, I request written confirmation of this termination, along with the effective date. If I have been stood down, please provide the time frame for this stand down and outline the necessary steps being taken to investigate and address the reasons behind this action.
2. Corrective Actions: What corrective actions are being undertaken to address the procedural discrepancies that have occurred in this instance?
3. Payment of Entitlements: If termination is confirmed, when will my accrued annual leave and any withheld pay be released? As you have failed to comply with the correct termination procedure and the mismanagement of this process causing damage to my reputation, causing current and future financial hardship, what monetary settlement is now on offer to rectify.
The process followed in this instance appears to be in violation of legal standards, and I will be seeking further action through the Fair Work Ombudsman if necessary, steps are not promptly taken to rectify this situation.”
The following day on 13 June 2024 at 10:09 AM, Mr. Hipworth sent a further e-mail to Ms. Hanssen complaining that his clients had contacted him and they reported that someone from the Trust had said Mr. Hipworth no longer worked for the Trust:[35]
“I find it highly inappropriate that you have contacted my clients to inform them that I am no longer with the business before the investigation has concluded. I have now been contacted by three vendors, which clearly indicates that a decision about the outcome of this investigation was made prematurely. You claim to be investigating the matter, yet you have already informed clients of my departure, not being stood down, departure. Which is it?
The effect of notifying clients of my departure from the business has caused significant damage to my reputation and further hinders my possibilities of future sales. This is unacceptable and highly detrimental to my professional standing.
Playing ignorance regarding whether members of your staff have been contacting my clients is another example of mismanagement on your behalf. I trust you will be conducting a thorough investigation into this matter and taking immediate action to rectify the situation with my clients, as thoroughly as you are investigating these claims about me.
Furthermore, I ask that you forward all documented meetings and emails related to the conduct of my behaviour as a matter of urgency, noting specific dates and times when these meetings occurred, including my document responses. Will you also be including the incident where you called me a drunk, despite knowing I suffer from a disability? I find this to be incredibly inappropriate, unprofessional, and illegal. Such a statement is labelled as disability harassment, is highly discriminatory and again, in breach of employment law.
I am willing to meet with you, along with my representative once your investigation has concluded and you are ready to discuss this matter property. In the meantime, I will be contacting Fair Work regarding the improper procedures being followed and the threat to withhold my funds. Fair Work guidelines supersede your policies, and your actions are in clear breach of Australia's employment law.
I expect a prompt and thorough response with a date in which your investigation will be concluded, and you are ready to proceed with a formal meeting.”[36]
Ms. Hanssen responded to this e-mail twice, once at 10:16AM,[37] and again at 10:39AM[38] on 13 June 2024:
10:16 AM:
“As advised, I have not instructed anyone to advise clients you are no longer with us, however as you are aware, the business must continue to operate and so we must assign agents accordingly and advise owners, we cannot simply leave them in limbo and unable to receive inquiry.
You continue to raise concern about your reputation but have no consideration for what your recent conduct has done to ours.
Please do arrange your representative and fair work, we are being provided a large amount of concerning reports of your own colleagues feeling intimidated and threatened by your aggressive and volatile behaviour.
The only mismanagement here was me giving you the benefit of the doubt for so long it seems.
I am unsure how you think we are to blame for your own volatile behaviours ...
For the record, your existing listings would still be payable to you (less the caretaker fee) as per the contract and sales policy doc you have been shared many times (and opted to disregard continuously).”
10:39 AM:
“Further to this again.
I have never called you a drunk, please advise where on earth you have come up with this? Date /time/location? This is not something I have ever said.
I will however be submitting the report from Teghan and other team members regarding your comments about me and my anatomy at a dinner at Kelp ...
Along with many others where you have spoken terribly about myself and your colleagues.
I have been nothing but patient and supportive of you and your tendency to conduct yourself differently to the rest of our team
Our investigation thus far contains multiple statements that you threatened a tenant and abused your own manager (several times), own your behaviour and stop trying to pass the buck.”
E-mail enquiry from solicitors for the TAC
At 2:26 PM on 13 June 2024, an e-mail was sent to the general e-mail of the Trust from Ms. Belinda Zilavac of the firm Wisewould Mahoney (which had previously subpoenaed Mr. Hipworth’s employment records from the Trust). It made the following enquiry of the Trust:
“We understand Mr. Hipworth has now ceased employment with [the Trust]. Could be …advise if he is to receive any severance pay or expected future commissions.”[39]
The e-mail was forwarded by a receptionist to Ms. Hanssen and Ms. Daddo. At 3:00 PM on 13 June 2024, Ms. Hanssen e-mailed the receptionist back and wrote: “Please do not respond to this. He has not ceased work with us yet. He is stood down whilst under investigation.”[40]
INVESTIGATION
As Mr. Hipworth had frequently said he would “exercise his legal right to say nothing”. Ms. Hanssen had no choice but to investigate his conduct without his input.[41] In her evidence, Ms. Hanssen outlined the process she used for the conduct of the investigation:
“So essentially I already had in Dean's file a list of incidents and issues that had happened in the past, that I then felt, okay, there's more merit to this. Now I have been told he's threatened a tenant. I've had team members report aggressive behaviour before. So then I started to ask each of these people that had spoken to me previously …. I started to go back and say, 'Guys, could I have some more information and more statements on this to compile all together.”[42]
The investigation report that informed the decision to dismiss Mr. Hipworth (which is composed of e-mails and other documents) is in evidence.[43] I have read and considered all that material but only reproduce some of it here.
The tenant gave her own statement of the interaction with Mr. Hipworth
One of the documents in the investigation report is a further narrative provided by the tenant who had made the complaint in her own words. This was forwarded to Ms. Morgan after Ms. Hanssen had asked Ms. Morgan to request the tenant to provide further details of the complaint.
On 12 June 2024 at 4:18 PM, the tenant, sent by e-mail an account of her interactions with Mr. Hipworth on 7 June 2024 and 8 June 2024 (with emphasis added):[44]
“The Following occurred Friday 7th June 2024.
My Partner and myself were looking online on realestate.com about local houses in the area up for sale and noticed that our house is up for inspection on 8th June, we were both confused about this as we had no notification from Dean that this was the case.
On 7th of June, I phoned Dean at 9.25am, just asking why we were not notified about this inspection as we are aware that we require 48 hours notice. He proceeded to tell me that I was notified on Wednesday 6th of June as he left a voicemail on my phone, I proceeded to explain that I never received this call and voicemail. Dean said that we would find the call records and send them to myself.
At 9.45am, I received a phone call from Dean explaining that he had notified me but he called the number he had on your system that was incorrect. He then explained since I was notified that this inspection was going ahead, as he had contacted me on Wednesday (which was the incorrect number).
After this phone call, I called Briony at 10:03 am (sorry if this is not the correct spelling), to which she explained that the inspection will be cancelled as he had not notified us, she said that she would contact the Sales Manager.
I then proceeded to get a text message from Dean at 10:37am saying, "Hi [Tenant] I Will be there on Saturday at 1:30pm for 30 mins. Is that time ok for you?" I proceeded to ignore that text message as I was told this was cancelled. I then received a missed call from Dean at 10:48am.
Following these messages, I then called Briony again, as I was confused and just wanted clarification if the inspection was going ahead or not. Briony instructed me that it was not going ahead and told me if Dean calls me again to say it has been cancelled and to organise another time with herself.
I then received the final phone call from Dean at 11:20am. During this phone call I was threatened and called 'fucking selfish' how dare I call and make a complaint against him. I was then called a few more profanities... He was then saying he 'has been the nice guy and there was no more Mr. Nice guy and that I should look out'. He then mentioned that he was going to be scheduling inspections at all hours. At the end of this phone call I said " Please do not speak to this way and that all communication should be done with the property manager and I will be hanging up'
At the end of this phone call I was distressed and disgusted that I was being threatened and verbally abused. I Did not feel comfortable in my own home as he had threatened to come to my house.
Following this discussion, I called Kellie to explain what had transpired that morning…”
Further detail from Ms. Daddo as to her interactions with Mr. Hipworth
Ms. Daddo provided an e-mail dated 14 June 2024 at 9:51AM which further elaborates on the matters related to the behaviour of Mr. Hipworth which was the subject of her evidence in this proceeding:[45]
“On commencing employment with Judith Wright O'Brien Real Estate on the 15th January 2024 I met Dean Hipworth.
From day 1, I have had to assist in sorting out issues relating to Dean's behaviour and professional conduct, including apparently not turning up for an open for inspection which he fiercely and very vocally (with profanities) denied even though the Vendor of the property was in attendance and advised Dean did not turn up.
Along with dealing with upset clients, both Vendor and Purchaser of 7 O'Brien Crt where the Contract of Sale was signed as Vacant Possession, however the Renter still had a lease in place beyond the settlement date, rendering the purchaser without accommodation until the Renter vacated. Dean then abused me vocally directed toward the Renter saying she was crazy and deserved nothing nor any accommodation while I tried to sort out somewhere for the Purchaser to stay. After much abuse on the phone with an elevated, aggressive manner he later admitted the Purchaser did require accommodation and assistance.
During the course of my employment I have had phone calls from Dean, including after hours, abusing the Company, our Director, and staff members constantly about what he perceived as incompetence, also relating to situations that have arisen for him which he has been unable to handle without lashing out.
I have tried to assist Dean believing if he were listened to and actions taken to assist him he would find the workplace a more enjoyable one.
I have resolved every conflict that has arisen with both clients and staff in relation to his behaviour. However, I still received phone calls of frustration and swearing and several times he has hung up on me when I have tried to calm him with reason or assist in finding solutions for him.
The latest incident on Friday 7th June when Dean put an open for inspection up online without written consent of the Renter, Dean vocally abused the Company, our Director and myself with profanities completely inappropriate anywhere let alone the workplace, he then hung up on me.
No one should attend their workplace and receive intimidating behaviour when going about about their duties and each and every time, Dean has been unprofessional and not abided by legislation …”
Mr. Hipworth, Ms Jones and the marketing team
The investigation report contains an e-mail dated 13 June 2024 at 7:55 PM from Ms. Ashlee Jones which refers to various interactions she had with Mr. Hipworth:[46]
“There was a time when I was in the marketing team and he had questioned me as to why there was no clips on the big screens for Wonthaggi Power, after I had told him that I will talk to Cohen Johnson and follow it up he continued to get angry with me and yell and say that it was not acceptable which made me quite intimidated and upset.
Another time was when the light was out in the communal bathroom in Wonthaggi, Briony Langsam and myself had tried to change the light bulb. When we weren’t able to do it we had kindly asked Dean to gives us a hand and he did, however he called us some pretty nasty names that i heard him say under his breath which I brought to Briony’s attention then escalated to Jodie Hanssen
Dean liked to think of me as his PA this included me having to scan his personal documents that included items about court ETC. When I had told him that I shouldn’t be scanning things for him on the reception email address he got angry. This is when I had just started at Obrien’s so I was quite new to the industry I was also freshly 18 and had never had someone I didn’t know speak to me that way. After this he would get me to scan his documents which I felt like I had to or he would get angry or he would yell at me. This conditioned right up until I switched from my position in the Marketing team to my current posting as a Leasing Agent.
There are many other times from when I was in marketing that he would blame me for things not being done straight away when it was entirely out of my control. He would get angry and mad at me and tell me none of us know how to do our jobs right.”
There is an interaction between Ms. Hanssen and Mr. Hipworth in evidence concerning some of these incidents where Hipworth denies he was aggressive in his interchange with Ms. Jones. Mr. Hipworth state “I am allowed to ask questions”[47]
Ms. Hanssen responded by email at 2.15PM on Thursday 9 November 2023[48]:
“You may not feel you are aggressive in your approach but when I am sitting at Wonthaggi and I have a 19 year old girl a tad shaken up after a call from you - I need to listen accordingly. She also expressed that you were saying negative things about other team members. The reality is, they are all doing their jobs in accordance with the process they have been given which is that requests need to come in writing and they need to gain approval before commencing extra work.”
TERMINATION FOR “SERIOUS MISCONDUCT”
Ms. Hanssen reviewed the material compiled during the investigation and reached the view the actions of Mr. Hipworth constituted serious misconduct justifying summary dismissal On 17 June 2024 at 4:01 PM, she sent the following e-mail to Mr. Hipworth which included the following text:[49]
“I am writing to you to confirm the outcome of the recent investigation regarding your employment with [the Trust].
As you are aware, we attempted to meet with you last week in relation to claims of threatening behaviour. You declined this meeting and as a result we had no option but to stand you down and investigate.
Unfortunately, when investigating your conduct, more concerning issues came to light - you will find these collated in the attached document.
Based on the evidence above and recent threats to a customer / offensive conduct toward your manager, we have unfortunately reached a conclusion that your conduct caused a serious and imminent risk to the reputation, viability or profitability of our business in that the behaviour was witnessed by the public and are likely to impact the public's decision to trust us or work with us in future.
Further to this, the consistent feedback from your colleagues, regarding feeling intimidated or threatened by your conduct is not acceptable and cannot continue.
We consider that your actions constitute serious misconduct warranting summary dismissal. In the circumstances your continued employment during a notice period would be unreasonable and we therefore have opted to cease your employment effective immediately due to serious misconduct. You will also be paid your accrued entitlements and any outstanding pay up to and including your last day of employment. This includes the balance of any time off instead of overtime paid accrued but not yet taken (paid at the overtime rote applicable when the overtime was worked). and superannuation.
….
In this case:
The behaviour places us at risk of claims by our team members regarding bullying.
The behaviour also places our business at risk due to failure to follow process or comply with legislation. The behaviour places our business reputation at risk due to clients feeling threatened.”
The Commission was not provided with the attachments to that e-mail, but it appears to attach the investigation report and some confirmation that Mr. Hipworth participated in a bullying and harassment training as a PDF.
WAS THE DISMISSAL HARSH, UNJUST AND UNREASONABLE?
I can now consider whether the dismissal of Mr. Hipworth on 17 June 2024 for serious misconduct was harsh, unjust or unreasonable under s 385(b). To consider whether a dismissal was harsh, unjust and unreasonable, I must “take into account” the matters prescribed in s 387. I now consider each of those matters.
(a)Valid reason
The reason given for the dismissal of Mr. Hipworth was “based on evidence and recent threats to a customer/offensive conduct toward your manager we have…reached the conclusion that your conduct caused a reasonable and imminent risk to the reputation, viability and profitability of our business”.
A valid reason to dismiss “must be defensible or justifiable on an objective analysis of the facts.[50] A reason cannot be valid if it is “capricious, fanciful, spiteful or prejudiced”.[51]
The reason for the dismissal was the threatening and abusive conduct alleged by the tenant. The investigation into these allegations was hampered by Mr. Hipworth’s decision not to participate in the investigation based on his “right to say nothing”. The only statement Ms. Hanssen had from Mr. Hipworth in relation to the allegations were from his e-mail dated 10 June which said:
“I will not be making any further comments regarding this matter other than to say this, I totally refute all of the allegations contained in the email of Kellie Morgan as these allegations talk of threatening nature and now the safety of a member of the community due to my alleged actions. I concede that I did have a phone conversation with a person who resides at 9 Narrows Way Newhaven and I did speak to her about my vast experience in real estate and I did say to her every tenant has a great deal of rights and so does the landlord but in most instances it is always a much better outcome for all if everyone is working together to achieve a common goal for all involved. I made it very clear to the tenant that I fully embraced and respected their rights as tenants.”
The decision to make no comment on the allegations (other than the text above) was an act of folly. The fact that, on 10 June 2024, his lawyers had “every piece of correspondence received from [Ms. Hanssen] regarding the allegations” and then advised him not to participate in the investigation, is an ineffable mystery.
On 10 June 2024, Mr. Hipworth was provided with the e-mail from Ms. Morgan which set out in some detail the tenant’s account of the exchange. Mr. Hipworth had an opportunity to put his case but refused to do so. Procedural fairness is an invitation. It was an invitation Mr. Hipworth declined.
Because Mr. Hipworth refused to give his side of the story in any detailed way, the investigation process was lopsided. That was his choice. The conclusion reached by Ms. Hanssen in relation to the tenant’s complaint was based on the two e-mails which contained the accounts of the tenant that:
The tenant felt unsafe, and she did not want any further communications with Mr. Hipworth.
Mr. Hipworth had said that “he had been doing his job a long time and she was making him look bad to his managers and this was all her fault, and he was not happy and he would be attending the open home tomorrow whether she liked it or not”.
She received a telephone call Mr. Hipworth where he “threatened her” and called her ‘fucking selfish”.
He said, “How dare [you] call and make a complaint against [me]”.
Mr. Hipworth called her “a few more profanities”. Mr. Hipworth then said: “he had been the nice guy and there was no more Mr. Nice Guy” and that she “should look out”.
Mr. Hipworth said, “he was going to be scheduling inspections at all hours”.
The investigation report also contained e-mails that allege Mr. Hipworth had a history of aggressive and rude behavior with his interactions with Ms. Daddo, and other staff.
Mr. Hipworth’s tendency toward aggressive behaviour was confirmed in the evidence of Ms. Daddo and Ms. Hanssen at the hearing. Mr. Hipworth did not seek to challenge the evidence of Ms. Daddo on his interactions with her. On a balance of probabilities, I accept her account of the weekly abusive phone calls and rude comments concerning the management of the Trust made by Mr. Hipworth to Ms. Daddo.
Ms. Hanssen was forced to measure the general denial and limited account given by Mr. Hipworth in his 10 June e-mail compared to the detailed account given by the tenant. It was open to her to consider the detailed account more credible.
Ms. Hanssen also had several complaints concerning Mr. Hipworth’s rude and aggressive behaviour to Ms. Daddo, the Marketing Team and others which were part of the investigation. This could be regarded as propensity evidence that supported an inference that Mr. Hipworth was aggressive in his interactions with the tenant.
Based on the fact that Mr. Hipworth chose not to give a complete account of his interactions with the tenant, the tenant had given a detailed account, and there was credible evidence that he had been rude to Ms. Daddo and staff of the Trust, it was sound, defensible and well-founded to dismiss Mr. Hipworth for reasons related to his “threats to customers” and “offensive conduct” toward his manager.
It follows I find the reasons given for the dismissal were valid.
Did the actions justify summary dismissal for serious misconduct?
The definition of serious misconduct is contained in regulation 1.07 of the Fair Work Regulations 2009. It includes conduct that causes “serious and imminent risk to the reputation and viability or profitability of the employer’s business”.[52]
Abuse and threats directed to a tenant by an employee of a real estate business, where the tenant indicates she “feels unsafe,” is clearly a “serious and imminent risk to the reputation of the employer’s business”. What landlord would engage the services of a real estate agent that abuses their tenants?
Based on the material before Ms. Hanssen, it was open to her to consider the conduct was serious misconduct and that it justified summary dismissal.
(b)Whether the person was notified of the reason
On 10 June 2024, Mr. Hipworth was provided with the 7 June e-mail from Ms. Morgan which set out in some detail the tenant’s account of the exchange. The allegation was that he had threatened and abused the tenant. This was one of the reasons for his termination. He was clearly notified of that reason.
On the issue of offensive conduct to management, the other reason for the termination, I am not satisfied that this was put to him. This could be explained by the fact that Mr. Hipworth had exercised his “legal right to say nothing” preventing any dialogue during the investigation phase of the allegations.
(c)Whether the person was given an opportunity to respond to any reason related to capacity or conduct
On 10 June 2024, Mr. Hipworth was provided with the e-mail from Ms. Morgan which set out in some detail the tenant’s account of the exchange and her allegations of threats.
He had earlier, on 7 June 2024, been sent a “Google Meet” by Ms. Hanssen which was an invitation to a virtual meeting on 11 June 2024 at 9:00 AM which Ms. Hanssen later explained was organised so that Mr. Hipworth “could give us your version of events.”
On 10 June 2024 he refused the opportunity to respond and attend the virtual meeting. Over the course of 10 June 2024, he replied to various e-mails from Ms. Hanssen trying to persuade him to attend as follows (with emphasis added):
· At 5.39PM: “I will not be making any further comment regarding this matter other than…” [to give a general denial and the one paragraph account of his exchange with the tenant]
· At 8:12PM: “I respectfully decline to attend the meeting. As is my legal right at the workplace.”
· At 8.55PM: “I have been advised to say absolutely nothing to you or anyone else.”
· At 9.06PM: “Once again I must reiterate my legal rights to say nothing and I intend to do so now. Whatever else you want or choose to do in this matter is your choice and your right.”
On the evidence, he was given ample opportunity to respond and to “give his version” of the events” on the alleged threats. He asserted his “legal right to say nothing” many times over. Procedural fairness is an invitation. Mr. Hipworth chose not to accept the invitation.
On the reason related to offensive conduct to management, I am not satisfied he had an opportunity to respond to that reason, however, his resolute refusal to engage in the investigation could explain why this was not put to him.
(d)Any unreasonable refusal by the employer to allow the person to have a support person present to assist in any discussions relating to the dismissal
In the e-mail chain where Mr. Hipworth repeatedly refused to respond, Mr. Hipworth was invited to bring his legal or other representatives along.
Ms. Hanssen invited Mr. Hipworth to bring “your legal representative or have them attend via phone”. In another e-mail she requested, “Please make arrangements for yourself or your legal representatives to attend so we can discuss the matter and attempt to resolve it”.
It is clear there was no unreasonable refusal to allow Mr. Hipworth to have a support person (in this case his legal representatives) present.
(e)If the dismissal was related to unsatisfactory performance whether the person had been warned about it
The dismissal was not related to Mr. Hipworth’s performance as an agent. He was dismissed for serious misconduct.
(f)The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
The Form F3 filed by the Trust states it has 33 employees, which means the Trust is a business of a significant size.
It could be expected that a business of this size would have detailed policies and procedures relating to employment matters. On the material before me, the procedures adopted in relation to this dismissal are consistent with what I would expect of a business of this size. I therefore do not consider this factor contributes to a finding that the dismissal was harsh, unjust or unreasonable.
(g)The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would likely impact on the procedures followed in effecting the dismissal
A dedicated human resource specialist would have prepared a document which would have made findings of fact following the investigation. The form of investigation report in evidence is nothing more than a compendium of e-mails received from staff. In the circumstances of the business and the manner the termination took place, I do not consider this factor contributes to a finding that the dismissal was harsh, unjust or unreasonable.
(h)Any other matter the Commission considers relevant
Mr. Hipworth made a great deal about the Purdie e-mail where Ms. Daddo had stated on 11 June that Mr. Hipworth had “left the employ” of the Trust before the investigation had concluded. I assume this is to establish that a conclusion had been reached prematurely before the completion of an investigation.
It is clear from the broadcast e-mail Ms. Hanssen had sent to staff on 11 June, and the internal e-mail sent by Ms. Hanssen following the enquiry from the solicitors for the TAC, that she informed her staff that Mr. Hipworth was stood down pending an investigation. I am satisfied at the time Ms. Daddo sent the e-mail to Mr. Purdie she knew, or ought to have known, that Mr. Hipworth had not “left the employ” of the Trust.
Based on these e-mails, I am satisfied Ms. Daddo expressed herself incorrectly in her e-mail. At the time the Purdie e-mail was sent, Ms. Hanssen had not yet reached a concluded view that Mr. Hipworth would be dismissed. On 11 June, he continued to be employed and was stood down pending the completion of the investigation.
Was Mr. Hipworth’s dismissal harsh, unjust and unreasonable having regard to the s 387 factors?
I have considered each of the prescribed factors:
· Valid Reason: There was a valid reason for the summary dismissal of Mr. Hipworth arising from the abuse and threats he made to a tenant. The fact he made a choice “to say absolutely nothing” in relation to the allegations against him (other than a general denial and one paragraph explanation) meant the Trust made that decision without the benefit of his explanation of the relevant events.
· The conduct amounted to serious misconduct. An employee of a real estate business abusing and threatening a tenant leads to a serious and imminent risk to the reputation of the business.
· Notification of the reason: Mr. Hipworth was provided with a fairly detailed account of the threats and abuse he was alleged to have committed.
· Opportunity to respond to any reason: Mr. Hipworth was provided an opportunity to respond to the allegations at a scheduled virtual meeting. Mr. Hipworth categorically refused to attend and exercised his “legal right to say nothing”.
· Support person: Mr. Hipworth was given an opportunity to bring along a support person, in this case a legal representative.
· Warning for unsatisfactory performance. The dismissal was for misconduct rather than performance.
· Size of Employer: Not a factor in this dismissal.
· Presence of a Human Resources Specialist Not a factor in this dismissal.
· Other matters: I am satisfied that on 11 June no decision had yet been made to terminate Mr. Hipworth. He continued to be stood down pending the completion of the investigation.
Taking into account all these factors I do not consider the decision to dismiss Mr. Hipworth was harsh, unjust or unreasonable.
CONCLUSION
I am not satisfied Mr. Hipworth was unfairly dismissed within the meaning of s 385 of the Act. The application is therefore dismissed.[53]
COMMISSIONER
Appearances:
Mr. Dean Hipworth, the Applicant, on behalf of himself.
Ms. Jodie Hanssen on behalf of the Respondent.
Hearing details:
9 December 2024
11 Exhibition Street
[1] Digital Commission Book at 114-115
[2] DCB at 136.
[3] DCB at 33.
[4] PN 54-59.
[5] PN 333.
[6] DCB at 50.
[7] PN 561 to 613.
[8] PN 730 to 745.
[9] PN 56.
[10] PN 748.
[11] PN 752.
[12] PN 135-136.
[13] PN 84.
[14] PN 76.
[15] PN 81.
[16] DCB at 54.
[17] DCB at 53.
[18] DCB at 59.
[19] DCB at 60.
[20] Ibid.
[21] Ibid.
[22] DCB at 61-62.
[23] DCB at 61.
[24] Ibid.
[25] PN 120.
[26] PN 116.
[27] DCB at 77.
[28] DCB at 20.
[29] The e-mail was tendered into evidence as Exhibit A1.
[30] PN 638.
[31] PN 643.
[32] PN 644.
[33] PN 669 to 690.
[34] DCB at 20.
[35] DCB at 21.
[36] Ibid.
[37] Ibid.
[38] DCB at 22.
[39] DCB at 81.
[40] DCB at 80.
[41] In his 10 June e-mail he did give a one paragraph account of his interaction with the complaining tenant.
[42] PN 407.
[43] PN 417 – Evidence of Ms. Hanssen. The report is in the DCB at 55 to 76.
[44] DCB at 58.
[45] DCB at 62.
[46] DCB at 63.
[47] DCB at 71-72.
[48] DCB at 72.
[49] DCB at 22.
[50] Rode v. Burwood Mitsubishi [Print R4471] at paragraph [19].
[51] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373]
[52] Regulation 1.07(2)(b).
[53] PR784864.
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