Dimitrios Mitsios v Keolis Downer Adelaide Pty Ltd
[2025] FWC 2965
•3 OCTOBER 2025
| [2025] FWC 2965 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dimitrios Mitsios
v
Keolis Downer Adelaide Pty Ltd
(U2024/8867)
| COMMISSIONER THORNTON | ADELAIDE, 3 OCTOBER 2025 |
Application for an unfair dismissal remedy – whether dismissal harsh, unjust or unreasonable – valid reason for termination – dismissal not otherwise harsh, unjust or unreasonable – application dismissed
Mr Dimitrios Mitsios (the Applicant) was employed by Keolis Downer Adelaide Pty Ltd (the Respondent) as a Passenger Service Attendant and then a Train Crew Supervisor commencing on 21 January 2021.
The Respondent is a public transport provider that, at the time of the Applicant’s employment, operated the rail network for South Australia. From early 2025, the Respondent returned operational functions of the rail network to the South Australian Government.[1]
In April 2024, Mr Mitsios was placed on a performance improvement plan, referred to as a Performance Support Plan (PSP), with a focus on improvement in correctly following the Respondent’s procedures. Mr Mitsios disagreed with the matters raised in the PSP.
The Respondent asserts that Mr Mitsios’ response to and conduct in and around the PSP, including interactions with his managers, was loud, aggressive, intimidating and argumentative such that it caused a risk to the health and safety of his colleagues and constituted misconduct, proportionate to which was his dismissal from employment.
The Applicant says that speaking in a loud manner is a result of his hearing loss in one ear and otherwise denies that his conduct was as described by the Respondent. Mr Mitsios’ view is that his placement on the PSP and other interactions with his managers about the PSP was bullying and harassment of him and his behaviour demonstrated his distress at being bullied.
The conflict between Mr Mitsios and his managers came to a head in interactions on 22 May and 5 June 2024 when he participated in meetings about the PSP. The Respondent alleges that during these meetings Mr Mitsios was defensive, argumentative, loud and aggressive and that this conduct caused harm to his manager, Ms Turner. Ms Turner, and another of Mr Mitsios’ managers, Mr Christie gave evidence about Mr Mitsios’ behaviour as they had observed it. The Respondent further alleged that Mr Mitsios then engaged in a confrontational discussion with Ms Javaheri of Human Resources, which caused her harm. Mr Mitsios raised allegations of bullying and harassment by Mr Christie and Ms Turner with Ms Javaheri, relating to the PSP process. Ms Javaheri gave evidence about the aggressive and intimidating manner in which Mr Mitsios spoke to her and the adverse impact it had on her wellbeing.
Mr Mitsios was suspended with pay on 7 June 2024. On 19 June 2024, he was presented with allegations of misconduct that included inappropriate and aggressive communication with his managers on 22 May 2024 and 5 June 2024 and Human Resources on 5 June 2024. The letter of 19 June 2024 noted that a preliminary decision had been made that termination of Mr Mitsios’ employment was appropriate.
Mr Mitsios provided a written response to the allegations via his then solicitors on 27 June 2024.
On 10 July 2024, Mr Mitsios was informed by the Respondent that his employment was terminated effective of the same date, with payment of 4 weeks’ notice. The Respondent advised Mr Mitsios that his conduct had placed other employees at risk and that Mr Mitsios had failed to appreciate the impact of his behaviour, show any remorse or offer a commitment to improve his conduct in the workplace.
Mr Mitsios made an application seeking a remedy for an alleged unfair dismissal under s.394 of the Fair Work Act2009 (the Act) on 31 July 2024. In particular, Mr Mitsios sought reinstatement to his role.
The matter proceeded to hearing on 11 and 12 November 2024.
Mr Mitsios gave evidence on his own behalf, supported by evidence of:
·Mr Darren Phillips, SA/NT Branch Secretary of the Australian Rail, Tram and Bus Industry Union; and
·Mr Travis Kreslin, a co-worker and observer of the exchange with Human Resources.
The Respondent relied on the evidence of the following witnesses:
·Mr Mohit Sareen, Acting Director of Service Delivery and the decision maker;
·Ms Amy Turner, Senior Performance and Business Improvement Analyst and Mr Mitsios’ direct manager;
·Mr Philip Christie, Acting Head of Service Delivery, assisting with the management of Mr Mitsios;
·Ms Robyn Hansen, Finance Director and partial observer of the interaction between Mr Mitsios and Ms Javaheri of Human Resources; and
·Ms Warda Javaheri, Human Resources Business Partner.
For the reasons set out in this decision, and despite Mr Mitsios’ alternative view of the events in question and his rejection of the proposition that his behaviour amounted to misconduct, I am of the view that the conduct of Mr Mitsios in interactions with his managers did constitute misconduct and was a valid reason for the termination of his employment. I accept and prefer the evidence of the Respondent’s witnesses who gave consistent evidence about their experiences of aggressive and intimidatory behaviour by Mr Mitsios. I also accept their evidence that his conduct caused them distress. In that regard, I am particularly persuaded by the evidence given by Ms Turner and Ms Javaheri. It was evident from the evidence of both witnesses that the events as described by them had an effect on their health and feelings of safety at work.
I also set out my reasons as to why the other elements I have to consider pursuant to the Act do not otherwise establish that Mr Mitsios’s dismissal was harsh, unjust or unreasonable.
Legislation
Section 385 of the Act outlines the meaning of “unfair dismissal”:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
Section 387 of the Act provides the criteria for consideration of whether a dismissal was harsh, unjust or unreasonable:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Was the dismissal harsh, unjust or unreasonable?
There is no dispute that Mr Mitsios has been dismissed or that redundancy or the Small Business Fair Dismissal Code has any application here. Therefore, the matter to be determined is whether the dismissal was harsh, unjust or unreasonable.
The High Court of Australia in the matter of Byrne v Australian Airlines Ltd[2] considered the meaning of the term ‘harsh, unjust or unreasonable’:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
I am required to consider each of the criteria set out in s.387 of the Act in determining this matter.[3] I now turn my consideration to each of these criteria.
s.387(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
In order to be a valid reason, the reason for the dismissal should be “sound, defensible, or well founded” and should not be “capricious, fanciful, spiteful or prejudiced”.[4]
Where the dismissal related to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[5] The test with respect to whether there was a valid reason is not whether the employer believed on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[6] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it.
Performance Support Plan
The Respondent placed Mr Mitsios on a Performance Support Plan (“PSP”) in April 2024. Mr Mitsios said that he was “confused”[7] as to why he was placed on the PSP because he had otherwise received positive feedback and recognition for his work through nominations for employee appreciation awards in 2022 and 2024. Earlier in April 2024 his assistance in training was recognised in writing by Ms Turner. Mr Mitsios included evidence of past recognition for his work in in his evidence.
Ms Turner’s evidence was that she, as Mr Mitsios’ direct manager, had noticed issues with his performance in January and February 2024 that “largely involved [Mr Mitsios] not following procedures.”[8] Ms Turner says that the impact of the failure to follow procedures was sometimes of low significance and at other times of greater significance, for example when he failed to take instructions from network controllers and it “caused delays to the train network, which in turn caused other staff to fail to meet KPIs.”[9] Ms Turner noted the change in Mr Mitsios’ compliance with procedures was “relatively sudden” and as such, she formed the view that it was deliberate.[10]
Ms Turner says that a decision was made not to institute a PSP before April 2024, because Mr Mitsios had instituted a grievance earlier in 2024[11] and the Respondent wanted to conclude that process first.
At the first PSP meeting on 18 April 2024, Mr Christie’s evidence was that Mr Mitsios:
- Pushed back and questioned every item in the PSP;
- Was antagonistic, spoke over others and was generally uncooperative in the meetings;
- Gave excuses and “drew outrageous conclusions without a logical basis”;
- Was animated and agitated in his demeanour, raised his voice and was passive aggressive in the PSP meetings; and
- Was deliberately difficult in requesting a process be created for a simple task.[12]
Mr Mitsios gave evidence that the PSP meetings were conducted in a “distressing and unfair manner”[13] and, during the meeting of 18 April 2024 that was attended by Mr Phillips of the RTBU, Mr Phillips was spoken to abusively by Mr Christie. Mr Mitsios says that Mr Christie told Mr Phillips to “sit down and shut up”.[14]
Mr Phillips’ evidence was that Mr Christie did prevent him from speaking in the meeting as a support person and that Mr Christie’s communication with him was blunt.[15] Mr Phillips did not recall the words used by Mr Christie but noted the words were to the effect that he was only a support person and was not able to speak.[16] Mr Phillips’ evidence was that he commented to Mr Christie at the end of the meeting that his behaviour toward Mr Phillips had been unprofessional.[17] Mr Christie agrees that he prevented Mr Phillips’ speaking and that Mr Phillips commented on his professionalism, but that otherwise, he and Mr Phillips have a working relationship without any personal animosity. It follows that the evidence supports a terse exchange between Mr Phillips and Mr Christie, but not one in which Mr Christie was abusive as Mr Mitsios alleges.
Mr Mitsios went as far as to say that as Mr Phillips “was visibly upset after this incident” and “appeared shaken up” so Mr Mitsios “comforted him”[18]. It was given this treatment of Mr Phillips that Mr Mitsios says he decided not to bring any other support person to the meetings about his PSP. This evidence was not aligned with that given by Mr Phillips and I find it is implausible that an experienced union official would react as Mr Mitsios described, even if Mr Christie did tell him to “sit down and shut up”.
The evidence given by Mr Mitsios in respect of the exchange between Mr Christie and Mr Phillips in the meeting of 18 April 2025, is an example of the evidence given by Mr Mitsios in this matter which exaggerates the events in support of his view that he was bullied. Mr Mitsios’ recollection was not supported by other witnesses. Mr Mitsios’ view of the exchange between Mr Christie and Mr Phillips supported his own narrative of the unfairness of the treatment of him.
Mr Mitsios drew attention in his evidence to what he says were inaccuracies in the PSP, including instances where he says he could not have made the errors he was accused of for a variety of reasons, including his absence from work at critical times.[19] It seems that Mr Mitsios forensically examined the contents of his PSP and raised a number of what he said were inaccuracies with Mr Christie.
Mr Christie’s evidence was that after Mr Mitsios was initially presented with the PSP, at the first follow up meeting, Mr Mitsios had “a whole list of matters he disputed, things he took issue with the PSP and things he didn’t think were his fault. He ranted and rambled about why he didn’t agree with the PSP.”[20] On another occasion, Mr Christie says Mr Mitsios called him over to his computer and “insinuat[ed] that because other staff had been in the system that they had changed his entry which worried him”.[21]
I accept Mr Christie’s evidence that he spent significant time investigating Mr Mitsios’ issues with the PSP and agreed that there was an error in the PSP. This error was accepted by the Respondent, communicated to Mr Mitsios and subsequently removed from the PSP.[22]
Mr Christie said in his statement: “The matters in the PSP weren’t really performance issues as much as they were behavioural issues. [Mr Mitsios] was capable of performing his role but chose not to do so; he chose not to follow instructions and adhere to the required processes, especially if he didn’t agree with it. That is, he repeatedly chose to refuse to do things he was asked to do. … I know that [Mr Mitsios] is entirely capable of performing his role and following procedure when he wants to, and when he agrees with the procedure.”[23]
Mr Mitsios says that the identification by him of what he says were the inaccuracies in the PSP document “made [him] suspect as to whether they were conducting the PIP [PSP] in a fair manner.”[24] Mr Mitsios raised his numerous complaints about inaccuracies with Mr Christie and Ms Javaheri by email and was assured that the PSP underwent a thorough process “to ensure complete accuracy”.[25] Mr Mitsios essentially asserts that the baseless nature of the PSP is evidence that the Respondent unfairly targeted him without a proper basis and that the termination of his employment is the culmination of an overall scheme of unfair conduct toward him by Ms Turner, Mr Christie, Ms Javaheri, and ultimately Mr Sareen. Mr Mitsios asserts that the PSP was instituted following a criticism he raised of management about the absence of a contingency plan to deal with industrial action on 9 April 2024.[26]
It appears that significant evidence was adduced about the PSP in an effort to demonstrate that Mr Mitsios was being unfairly targeted by the Respondent with baseless allegations of failures to follow procedure and this went someway to explaining his later conduct when engaging with his managers. I note that the allegations of aggressive and intimidating behaviour are not accepted by Mr Mitsios, and any behaviour interpreted as being aggressive or intimidating was rather an expression of Mr Mitsios’ own distress and sense of overwhelm and not the conduct alleged.
Mr Sareen gave evidence of the matters he took into account when making the decision to terminate Mr Mitsios. These circumstances did not include the PSP[27]. I accept Mr Sareen’s evidence in that regard.
Given that the PSP did not form part of the decision to dismiss Mr Mitsios from employment, it appears its relevance to the determination of whether the dismissal was unfair is limited to Mr Mitsios’ reliance on its asserted unfairness to demonstrate the Respondent’s attitude towards him and as an explanation for his reactions in later interactions with Ms Turner, Mr Christie and Ms Javaheri that were the events that led to his dismissal.
It is not necessary for me to make any findings about whether there was a basis for each matter raised in the PSP because I accept that the issues related to performance did not form part of the reason for the termination of the Applicant’s employment.[28] The evidence reveals that Mr Mitsios was considered a capable employee who had previously complied with the Respondent’s procedures, however, his compliance with those procedures had likely diminished some time prior to his dismissal. Mr Mitsios was aggrieved because he did not agree with the basis for the PSP and did not accept the concerns raised by the Respondent. I accept the evidence that Mr Mitsios behaved in an unhelpful way during the PSP process, refuting and arguing with each matter raised and not engaging in an effort to restore his compliance with the Respondent’s required processes.
However, I reiterate that the evidence regarding the PSP process was raised by the Applicant, and I am asked to take it into consideration when reaching a view about whether Mr Mitsios’ conduct towards his managers occurred in the manner they have described and constituted misconduct that was sufficiently serious to warrant the termination of his employment. To that end, I do not accept that Mr Mitsios can rely on the PSP process to mitigate his later conduct. That is, I do not accept as a proposition, based on the evidence regarding the PSP process that it was unfair or undertaken in an unreasonable manner such that Mr Mitsios’ responses were warranted or appropriate. That is not to say that Mr Mitsios was not upset about the process; I accept that he was. For reasons further expanded on below, I also accept that Mr Mitsios displayed his feelings of aggrievement to the Respondent.
The central issue in this matter, it seems to me, is whether the demonstrations of Mr Mitsios’ distress about what he perceived as unfair treatment on 18 April and more particularly 22 May and 5 June 2024 were manifestations of his distress and discomfort and not otherwise threatening and intimidating to other employees, or behaviours that were of themselves threatening and intimidating to other employees such that they rose to the level of misconduct. These were the events relied on by the Respondent in dismissing Mr Mitsios from his employment. I do not consider that the PSP process evidences unfair treatment of Mr Mitsios such that his later behaviour in the relevant interactions with his managers was mitigated by any unfair treatment.
Allegations of misconduct
On 19 June 2024, following the incidents set out below, the Respondent issued the Applicant with what is often referred to as a ‘show cause’ letter, setting out allegations of misconduct. In this case the Respondent foreshadowed in its correspondence, before receiving Mr Mitsios’ response, that in its view, some form of disciplinary action was appropriate, given the “nature and seriousness of the conduct of concern.”
The letter of allegations of 19 June 2024, set out the following allegations of misconduct:
(a)On 22 May 2024, in an interaction with Mr Christie, Mr Mitsios engaged with Mr Christie in a “loud and argumentative manner” in an open space where other staff were exposed to the exchange, in breach of the Respondent’s Code of Conduct, obligations under work, health and safety laws and particular clauses in his employment contract, and in a manner which caused a risk to the psychological and physical health of at least one staff member;
(b)On 5 June 2024, in a PSP meeting with Ms Turner and Mr Christie, Mr Mitsios behaved in a loud and aggressive manner, spoke over Ms Turner and Mr Christie, displayed ‘animated’ body language, including hand movements, leaned his body toward Ms Turner and Mr Christie and placed both hands on the desk. This conduct was said to have been in breach of the Respondent’s Code of Conduct, obligations under work, health and safety laws and particular clauses in his employment contract, and was taken in a manner which caused a risk to the psychological and physical health of at least one staff member; and
(c)On 5 June 2024, in an interaction with Ms Javaheri of Human Resources, Mr Mitsios behaved in an unprofessional manner, inappropriate for the workplace when he conducted himself in an aggressive and intimidating manner, raised his voice, was not respectful in the way he spoke with Ms Javaheri, was animated, loud and angry, accused employees of the Respondent of lying, interrupting and speaking over Ms Javaheri and refusing numerous requests to continue the conversation in a private space or at a later time by telephone.
It is necessary that I make findings about whether the misconduct occurred to reach a view as to whether the Respondent had a valid reason for the dismissal of Mr Mitsios from his employment.
Incident of 22 May 2024
On the above date, Mr Mitsios says that he and Mr Christie had a difference of opinion and “sensibly argued our respective stances on the issue at hand.”[29] Mr Mitsios advised Mr Christie that, in effect, he was unable to follow the relevant procedures strictly as to do so “could result in severe delays and disruptions in the network.”[30] Mr Mitsios explained that, customarily, Train Drivers and Train Crew Supervisors “have exchanged favours to facilitate the smooth operation of train services.” Mr Mitsios says the favours are “not favours that grossly infringe upon policies and rules under which we are bound”[31] and are one of the ways that Train Crew Supervisors address delays in train services. Mr Mitsios infers that Train Crew Supervisors do small favours for train drivers such as note in the system when they do not want to be contacted on a day off, and in exchange, the train driver may come in on another day off to assist to keep the trains running on time in the event they are needed.[32]
Mr Mitsios says that Mr Christie was “adamant” that he should strictly follow the procedure and Mr Mitsios “requested that he inform the Shift Supervisors of the direction he had just communicated to me” and both Mr Christie and Mr Mitsios moved the discussion to the shift supervisor’s office. When in the Shift Supervisor’s office, Mr Mitsios himself “pointed out to supervisors that [Train Crew Supervisors] will now be adopting [Mr Christie’s] instruction and will disregard the exchange of favours and follow procedure to the letter.”[33] Mr Mitsios’ own evidence was: “I further added that any delay we may experience could now be resulting from the inflexible adherence to procedure.”[34] Mr Mitsios strongly denied that he was aggressive or aggravated in his demeanour during this exchange.
Mr Mitsios’ response to the show cause process that was sent on his behalf by his lawyer at the time, denied he was unprofessional on 22 May 2024, but that he may have spoken loudly during the conversation. He attributes this loudness to hearing loss[35].
Mr Christie’s recollection of the exchange was different to that of Mr Mitsios. Mr Christie said that Mr Mitsios initially raised a concern about someone else accessing a record on the system that was otherwise connected to him. This then led Mr Mitsios to raise issues about the contents of the PSP and argue that the matters raised in it were incorrect. Mr Mitsios then changed the subject to criticism he had received for a shift swap he had arranged that was contrary to procedure. Mr Christie’s evidence is that Mr Mitsios said that “if he followed the procedures and didn’t do non-compliant shift swaps for drivers, the drivers wouldn’t help him out and that would affect the network.”[36] Mr Christie says he told Mr Mitsios that “that was a conclusion he had drawn himself and that he needs to follow the procedures.”[37]
Mr Christie says he followed Mr Mitsios to the Shift Supervisor’s Office. He says that Mr Mitsios explained that “he was the only person who could do the job without causing interruption to the network”[38] and that if he did not call in favours he had accrued with train drivers then he couldn’t remedy urgent situations, citing a particular example of when this occurred. Mr Christie said that he reiterated to Mr Mitsios the need to comply with procedures and Mr Mitsios again noted that if he did so, it would result in delays to the network.
Mr Christie said the exchange between him and Mr Mitsios then moved to the Train Control Supervisors Office and progressed to Mr Mitsios raising concerns about how the PSP was being handled and a disclosure by Mr Mitsios that he had altered his corporate email signature to include a warning about the contents of outgoing emails being confidential and potentially privileged. There was no evidence given by Mr Mitsios about these later events.
Mr Christie says that Mr Mitsios was animated, agitated, argumentative and dismissive of Mr Christie in the exchange and that he responded to points made by Mr Christie with sarcastic smiles and gestures. Mr Christie says he used de-escalation techniques he had been trained to engage during in the exchange. Overall, Mr Christie considered Mr Mitsios’ behaviour to be “entirely inappropriate for the workplace”. Mr Christie noted in his witness statement: “It was apparent that [Mr Mitsios] was not willing to accept a direction he was being given to follow a procedure that was part of his job.”[39]
Ms Javaheri from Human Resources also observed part of the exchange on 22 May 2024. She gave evidence to the Commission that she observed Mr Christie and another shift manager drawing Mr Mitsios’ attention to a failure to follow a required procedure. She said that Mr Mitsios was “aggravated” and “animated” during the interaction which caused her to feel “confronted” by the incident. Ms Javaheri says she removed herself from the room because she “didn’t feel safe” and then reported the incident by email to her manager, Ms Metcalfe[40]. The email sent by Ms Javaheri was in evidence and reflected these statements made by Ms Javaheri in her evidence.
On Mr Mitsios’ own evidence, his announcements to other staff members about a change in approach and his obvious contempt for the procedures Mr Christie asked him to follow make his conduct and communication with Mr Christie appear disrespectful and sardonic. It was evident from my observations of Mr Mitsios’ oral evidence that he was reluctant to follow procedures developed by the Respondent because he preferred his approaches and methods.[41]
Given the attitude that Mr Mitsios displayed to Mr Christie on his own version of events, the evidence that he was already aggrieved about the unfairness of the PSP and the contemporaneous email setting out events that Mr Christie sent to Ms Javaheri on the afternoon of 22 May 2024[42], I prefer the evidence of Mr Christie and Ms Javaheri regarding the events of 22 May 2024. I accept that the Applicant was hostile, undermining and disrespectful of Mr Christie in the exchange and his behaviour was as Mr Christie described: demonstrative and confrontational.
However, I accept the submission of the Applicant[43] that there is no evidence that concerns about Mr Mitsios’ behaviour on 22 May 2024 were raised with him until the show cause process commencing on 19 June 2025. The failure to raise this conduct, that was later included in the allegations as misconduct, at the time it occurred is noteworthy. Not addressing the conduct at the time it occurred removed an opportunity for Mr Mitsios to understand the seriousness of his behaviour and to be put on notice that the conduct was not acceptable to the Respondent, and further instances could result in his dismissal from employment. However, I do not accept that the failure to raise it with Mr Mitsios supports a conclusion that the exchange was no more than a disagreement between co-workers as described by Mr Mitsios in his show cause response. The email of Mr Christie to Ms Javaheri on the afternoon of 22 May 2025 contradicts that contention. The failure to raise this conduct with Mr Mitsios is surprising but does not mean that it could not appropriately be relied on by the Respondent as a course of inappropriate conduct that amounted to misconduct.
Incidents of 5 June 2024
The are two incidents that the Respondent relies on as misconduct.
The first of those incidents involved a meeting about the PSP and was conducted with the Applicant, Mr Christie and Ms Turner present.
Mr Mitsios says the meeting started with a discussion about the evidence prepared by him two weeks prior “in relation to unfair conduct of the PIP [PSP] and the inaccuracy of the PIP [PSP] document.”[44] Mr Mitsios says he then spoke to some of the detail of what he says were the inaccuracies. Mr Mitsios’ evidence is that Mr Christie was “confrontational from the outset of the meeting”[45] and Mr Mitsios felt stressed in the meeting. Mr Mitsios says that it appeared to him that Mr Christie was frustrated that Mr Mitsios was raising discrepancies and he conveyed to Ms Turner and Mr Christie that the meeting was stressful for him as they continued to alter the details in the PSP. It is unclear from Mr Mitsios’s evidence how he says the PSP was being altered, other than to make a change when accepting one of the matters raised was not an error made by Mr Mitsios.
Mr Mitsios said that he advised Mr Christie and Mr Turner that he needed a support person and left the room. He accepts that he was “frustrated” with Ms Turner and Mr Christie because they were inconsiderate and unfair in the way they were approaching the PSP process and were dismissive of his challenges to the veracity of the feedback contained in the PSP. Mr Mitsios says his body language may have shown his frustration, and he may have placed his hands on the table in order to stand up and leave the meeting but does not accept his conduct was otherwise aggressive or inappropriate.[46] Mr Mitsios also referred to his hearing disability to explain any loud communication during the meeting.
Mr Christie’s evidence about the meeting differed to that of Mr Mitsios. Mr Christie gave detailed evidence about Mr Mitsios’ conduct in the meeting of 5 June 2024. He told the Commission in his evidence that just after the meeting started, Mr Mitsios interrupted Ms Turner suddenly and in an angry manner, he raised his voice, accused Mr Christie and Ms Turner of changing the PSP, his arms were flying around and he was animated[47]. Mr Christie said Mr Mitsios’s conduct was aggressive, described him leaning over the table towards Ms Turner and regularly speaking over Ms Turner and Mr Christie. Mr Christie also said that he often had to ask Mr Mitsios to allow Ms Turner to finish speaking and that he would not allow Ms Turner to address the questions he was raising, and when she made some effort to do so, he would not listen to her response.
Mr Christie sent an email to Ms Javaheri recounting the events of the meeting of 5 June 2025 at 11:57am that day. The email was in evidence.
Ms Turner, in her evidence, said that Mr Mitsios was defensive in the meeting. She said that when she and Mr Christie attempted to address Mr Mitsios’ concerns about the contents of the PSP, Mr Mitsios continually interrupted and spoke over the top of her and Mr Christie. She said in her statement that Mr Mitsios cut her and Mr Christie off when they attempted to speak and did not allow them to finish what they were saying, being generally disruptive and aggressive. She says that Mr Mitsios made vague points and asked vague questions about procedures but wanted specific responses about the correct procedural responses in complex situations. Ms Turner’s evidence was that she and Mr Christie had brought copies of the relevant policies and procedure manuals to the meeting so they could assist Mr Mitsios to understand what he was doing that was not compliant and offered him additional training. Mr Mitsios was not open to these suggestions.[48]
Ms Turner said Mr Mitsios’ behaviour in the meeting was intimidating because it involved sitting forward in his chair, “becoming bigger in his body”[49] as he leant towards Ms Turner and Mr Christie with both hands on the table. After a short time, Mr Mitsios said he wanted to stop the meeting before Mr Mitsios “started to yell” and accused Mr Christie and Ms Turner of changing the contents of the PSP. Ms Turner says that she assured Mr Mitsios that had not occurred but Mr Mitsios rejected that assertion by yelling “no”. Ms Turner says that after approximately 6 minutes Mr Mitsios left the room and “opened the door so forcefully that it banged against the white board behind it.”[50]
Ms Turner gave evidence about the distress she felt after the meeting. She says that she felt anxiety, stress and frustration and had an elevated heart rate, was tense and her hands were shaking and she was in “a bit of shock”.[51]
Ms Turner says that she was later informed that Mr Mitsios had left for the day and later again on 5 June 2024, that he was having the remainder of the week away from work. Ms Turner then placed him on relief shifts to ensure that regular staffing was maintained if he did decide to come into work.
Mr Mitsios in fact did return to work the next day. Ms Turner says that when she saw him she felt “extremely anxious” and worked in an alternative workspace from her usual location because she felt unsafe around Mr Mitsios.[52] Again, on 7 June 2024, when Ms Turner attended for work and found Mr Mitsios there was well, she told a colleague that if Mr Mitsios approached her, they were to get someone from Human Resources or more senior management. Ms Turner says that, by that stage, she did not think she could handle another situation with Mr Mitsios and needed “back up support”.[53] Ms Turner referred in her evidence to the history of her difficulties with Mr Mitsios, including a comment he made to her in one of their first one-on-one meetings to the effect that “he didn’t think I’d be around in this role in a year’s time, that I’d think it was too tough and leave.”[54] Ms Turner referred to Mr Mitsios questioning her ability as a leader, and questioning the decisions and actions she took as a leader.[55]
Ms Turner was challenged on her interpretation of Mr Mitsios’ behaviour in cross-examination, including that she had interpreted his loud voice as yelling when in fact it was on account of his hearing loss. Ms Turner rejected the propositions put to her that she had mis-interpreted Mr Mitsios’ behaviour and confirmed that yelling was only one aspect of the intimidatory behaviour. She was not shaken in her view that she had been intimidated by a number of behaviours of Mr Mitsios and that these behaviours had an adverse effect on her wellbeing.
After Mr Mitsios left the meeting with Mr Christie and Ms Turner, he went to speak to Ms Javaheri, of Human Resources, to make a complaint of bullying against Mr Christie and Ms Turner. Ms Javaheri invited Mr Mitsios to discuss the matter in her office, which he declined because he says he felt “claustrophobic on account after what I endured”[56] during the earlier meeting about the PSP. Consequently, Mr Mitsios and Ms Javaheri went outside to discuss the matter. Mr Mitsios says he raised a complaint about the alterations to the PSP and accused Mr Christie of “finding new and alternative ways to get under my skin hoping to induce some sort of emotional outburst from me.” Mr Mitsios’ evidence was that he had “exceeded my tolerance for such antics and that it would be unfair to expect me to productively function at work after subjecting me to such emotional distress.”[57] He also accused Mr Christie and Ms Turner of making up lies, in refence to the inaccurate information in the PSP. Mr Mitsios says he felt “justified in [his] frustration” because he had been subjected to an “emotionally deplorable situation”.[58]
Mr Mitsios’ evidence was that his conduct and demeanour in this exchange was reasonable give the “intense circumstances under which it took place.” He accepts he was in a “distressed and anxious state” and appeared “emotionally heightened” but “at no point was I acting in an animated, disrespectful, unprofessional or angry fashion toward [Ms Javaheri].”[59] Mr Mitsios insists that it was he who was distressed and more care should have been shown for his mental wellbeing.
During this exchange, Mr Mitsios and Ms Javaheri were approached, at separate times, by two other colleagues[60]. Initially, they were approached by Ms Hansen, and later Mr Kreslin. Both Ms Hansen and Mr Kreslin gave statements in the proceedings but neither were required for cross examination. Mr Mitsios says that Ms Hansen asked Ms Javaheri if she was alright and Mr Mitsios says that he responded that it was him who was distressed. Mr Kreslin later asked Mr Mitsios if he was okay, because “he could tell that I was under a great deal of stress and anxiety.”[61] After they were approached by these other staff members, Ms Javaheri suggested that they again move the conversation to her office, and Mr Mitsios reiterated his claustrophobia and difficulties breathing. Mr Mitsios says that Ms Javaheri’s request to move inside demonstrated a lack of concern for his health and wellbeing.[62]
Ms Hansen said in her statement that she observed Mr Mitsios (whom she did not know at the time) speaking loudly to Ms Javaheri but was “concerned about the tone and volume of [his] voice.” She referred to Mr Mitsios’ tone of voice as intimidating and that he appeared to be “metaphorically standing over her” and “having a go” at Ms Javaheri. Ms Hansen said that Mr Mitsios’ body language was defensive and he had his “arms and upper body stretched out a bit more so as to make himself look bigger”.[63] When she approached the pair and asked Ms Javaheri if she was okay, Mr Mitsios responded and told Ms Hansen that it was a private conversation between them. Ms Hansen then waited just inside the entrance to the building for Ms Javaheri to conclude the conversation and was sufficiently concerned that she reported the exchange to Ms Javaheri’s manager, Ms Metcalfe. On request, Ms Hansen sent an email setting out what she had witnessed to Ms Metcalfe later the same morning. The email was in evidence.
Mr Kreslin knows Mr Mitsios and also observed the interaction between him and Ms Javaheri. In his statement, Mr Kreslin reported seeing Mr Mitsios speaking loudly with distress in his voice. He noted the distance between where Ms Javaheri and Mr Mitsios were standing in relation to each other as what he perceived to be the reason for Mr Mitsios’s raised voice. Mr Kreslin approached Mr Mitsios and Ms Javaheri because he considered a discussion between Mr Mitsios and a person from Human Resources, in which Mr Mitsios was demonstrating distress, to be unusual and worthy of further enquiry. When he asked Mr Mitsios twice if he was alright, Mr Mitsios confirmed that he was, and Mr Kreslin accepted this response.[64]
Ms Javaheri says in her evidence that Mr Kreslin, despite her attempting to draw his attention in order to assist her to leave the interaction without aggravating Mr Mitsios, did not see or respond to her and never approached them. It was not put to Ms Javaheri in cross examination that she was incorrect in this view rather she was asked if she was sure of her evidence and she confirmed she was. Whilst I accept the uncontested evidence of Mr Kreslin, I do not find that this difference otherwise undermines the evidence given by Ms Javaheri. Mr Kreslin’s evidence confirms that Mr Mitsios, at the very least, was speaking loudly and that he appeared to be distressed.
Ms Javaheri gives a detailed account of the interaction with Mr Mitsios on 5 June 2014 in her evidence. She says:
(a)She was advised by another colleague that Mr Mitsios was waiting for her at reception and he was agitated;
(b)Mr Mitsios spoke loudly to her, and the speaking loudly included yelling;
(c)Mr Mitsios was pacing up and down;
(d)Mr Mitsios was “using his size to be more intimidating” which is something she had noticed in the past;
(e)He was “physically authoritative”, amplified by body language that included sudden and expansive hand gestures;
(f)Ms Javaheri felt uncomfortable and “did not feel safe”;
(g)Mr Mitsios told her that he wanted to go outside and Ms Javaheri felt that she did not have a choice but to go outside with him – as if it were a “direction or demand”;
(h)When outside, Mr Mitsios continued to pace and up and down, throwing his hands up in the air, and then making “sustained and uncomfortable eye contact” with Ms Javaheri, in an intimidating fashion;
Mr Mitsios cut her off and yelled louder when she tried to speak; and
(j)Mr Mitsios accused her of “being in on it too” and being a “liar”.[65]
The interaction concluded when Ms Javaheri told Mr Mitsios to go home and take some time away from work and that she would check on him in a few days. She later sent an email to her supervisor Ms Metcalfe soon afterwards summarising the events. The email was annexed to her statement.
Early the following morning, Mr Mitsios sent a complaint about the PSP and what he perceived as a failure of the Respondent in their duty of care for him by email to Ms Javaheri. Mr Mitsios again complained about the alleged changes to the PSP, admission of an error in the PSP, and that after he had returned to work on 6 June 2025, that he had been humiliated by being moved to working as a spare or relief person on the roster, because it was evident to him that a decision had been made that he was not competent in his role. Mr Mitsios criticised the Respondent, and by implication, Ms Javaheri, for not offering him the Employee Assistance Plan for support or asking if he was fit to drive home after their interaction the day before.
Ms Javaheri gave evidence about the anxiety she felt about the exchange with Mr Mitsios. She also described her own emotional reaction to the stress and her recurrent thoughts, that intruded on her outside of work, about her interactions with Mr Mitsios. Her evidence was that she felt Mr Mitsios blamed her for failing in her duty of care to him and this made her question her professional competence. Ms Javaheri worried that the complaint from Mr Mitsios reflected negatively on her given she had been employed by the Respondent for a short time. Ms Javaheri said in her statement: “Both [Mr Mitsios’] conduct with me in person, and his email, had a profound negative impact on my mental health.”[66]
The evidence of all four witnesses to this exchange clearly establish that Mr Mitsios was distressed and was speaking loudly to Ms Javaheri. The evidence of Mr Kreslin does not contradict the evidence given by Ms Hansen or Ms Javaheri, it simply focuses on whether Mr Mitsios was alright given his heightened manner. I accept the evidence of Ms Hansen and Ms Javaheri that Mr Mitsios’ expression of his distress was intimidating.
Mr Mitsios at several times in his evidence and submissions that his monaural hearing impairment in his left ear explained his use of a loud voice on the occasions in issue. His evidence was that: “it becomes challenging for me to hear or control the tone and volume of my voice on account of having the advantage of merely one functioning ear. This compels me to speak in a higher volume as I am unable to hear the volume or the intensity of my voice.” He understood that most of his colleagues were aware of his hearing challenges and he was “habitually compelled to inform co-workers and managers at my workplace” about his hearing disability.”[67] However, Ms Turner gave evidence that she was unaware of Mr Mitsos’ disability.[68]
The matter of Mr Mitsios’ hearing loss was not the subject of any medical evidence. I have no reason to doubt Mr Mitsios’s evidence that he has a hearing impairment. However, Mr Mitsios could hear and engage in giving oral evidence and control the volume of his voice in the hearing. Mr Mitsios’ suggestion that the inability to control the volume of his voice is something that occurs when he is anxious is in my view unlikely. A hearing impairment also does not explain the other elements of his behaviour that the Respondent’s witnesses described as intimidating, aggressive and inappropriate. I do not accept Mr Mitsios’ explanation that any conduct alleged by the Respondent’s witnesses can all be attributed to his hearing impairment,
Any reference to Mr Mitsios’ hand gestures as being related to his Greek ethnicity[69] was not developed in evidence and I do not accept that Mr Mitsios’ ethnicity was a mitigating factor. Ms Turner demonstrated in her evidence the nature of the hand gestures and they were more elaborate and aggressive than those used in expressive speech.
Summary of findings regarding valid reason
After considering the evidence, it is evident to me that Mr Mitsios lacked insight into his conduct and its impact on his colleagues and managers. The focus on his evidence was on the unfairness of his treatment by Mr Christie and Ms Turner, and the lack of support he received from Ms Javaheri. Mr Mitsios presented as feeling justified in the intensity of his expressions of distress without regard to how that behaviour could appear threatening and confronting to his colleagues and managers.
It appeared to me that Mr Mitsios had a view that he was good at his job because he did it his way. He saw Mr Christie and Ms Turner as interfering with him making sure the trains ran on time and taking care of the well-being of the train drivers and he doubted their competency[70] to set procedure that he had to follow. When they raised performance issues with him, Mr Mitsios argued and rejected every matter brought to his attention and when it was accepted that there was an inclusion in the PSP in error, Mr Mitsios jumped on that error as being indicative of the baseless nature of the entire process. Mr Mitsios saw himself as persecuted by the Respondent. Yet he insisted in his written evidence and cross examination that he did not react in the aggressive manner that Mr Christie, Ms Turner and Ms Javaheri said he did. Mr Mitsios’ evidence asserted that the allegations of poor performance supported his claim that that he was being targeted by the Respondent without any basis.
I have already set out my view that Mr Mitsios at times exaggerated what occurred or the impact of what occurred in his evidence. He also had a tendency in his evidence to downplay the effect of the events and his conduct. I agree with the submission made in the Respondent’s closing submissions that “the Applicant downplays the impact of his behaviour by attacking the legitimacy of the beliefs and fears held by Ms Turner and Ms Javaheri as a result of the Applicant’s conduct.”[71] In entirely rejecting the allegations against him of misconduct arising from aggressive and intimidating behaviour and failing to acknowledge to a satisfactory degree the existence and impact of that behaviour, Mr Mitsios minimised his own conduct.
I accept the evidence of the Respondent’s witnesses that they felt intimidated, confronted, distressed and disturbed by the conduct of Ms Mitsios on 22 May and 5 June 2024. I accept that the exchanges with Mr Mitsios on those dates had an impact on their sense of safety at work and their mental well-being. Mr Mitsios failed to acknowledge and accept responsibility for his conduct.
I find that the behaviour of Mr Mitsios provided a valid reason for his dismissal from employment.
s.387(b) Whether the person was notified of that reason
Proper consideration of s.387(b) of the Act requires a finding to be made as to whether the Applicant was ‘notified of that reason’. Contextually, the reference to ‘that reason’ is the valid reason found to exist under s.387(a).[72]
Despite the failure of the Respondent to raise the first incident of alleged misconduct of 22 May 2025, Mr Mitsios was ultimately notified of the allegations of misconduct, including the additional allegations arising from the events of 5 June 2025, in the show cause letter of 19 June 2025.
When his employment was terminated on 10 July 2024, Mr Mitsios was informed that he was dismissed because of the seriousness of his conduct in creating a risk to the psychological safety of other employees in the workplace. Consequently, he was notified of the reason.
I do not accept Mr Mitsios’ submission that for this criteria to be met he must have been put on notice that his conduct was making people uncomfortable and his employment would be at risk as a consequence before the letter on 19 June 2024.[73] As addressed below, the Applicant was aware of the Respondent’s behavioural expectations in the workplace arising from the Code of Conduct.
s.387(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
Mr Mitsios was afforded a show cause process and he had the opportunity to respond to the allegations of misconduct in writing, which he did with the assistance of his lawyer on 27 June 2025. Whilst he was not on notice that the Respondent considered his behaviour of 22 May 2025 as misconduct until the show cause process, he was notified that the conduct of 22 May and 5 June 2024 was considered misconduct in that process.
The allegations were put to Mr Mitsios in writing on 19 June 2024 and he had the opportunity to reply after seeking legal advice on 27 June 2024.
The Applicant asserts that whilst he was given an opportunity to respond, the Respondent had pre-determined the disciplinary matter and decided to terminate the Applicant’s employment. Mr Sareen’s evidence is that he considered Mr Mitsios’ written response when making the decision to terminate his employment[74]. I accept that occurred.
s.387(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
There is no assertion that there was an unreasonable refusal to allow Mr Mitsios to have a support person. Mr Mitsios’ evidence is that he had Mr Phillips of the RTBU attend as a support person at his initial PSP meeting on 18 April 2024 but after he said Mr Christie was abusive to Mr Phillips, Mr Mitsios “decided not to invite any support person”[75] including Mr Phillips.
s.387(e) If the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal
It is clear on the evidence that Mr Mitsios was dismissed for misconduct and not unsatisfactory performance. This is not a relevant consideration.
s.387(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal and s.387(g) - whether the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise impacted on the procedures followed
The Respondent is not a small business and has dedicated human resource management specialists.
s.387(h) Any other matters that the FWC considers relevant
The Applicant submits that his age and experience being largely in the rail industry are relevant considerations in determining the harshness of the dismissal.[76] At the time of hearing, the Applicant gave evidence that he had applied for many jobs and had been unsuccessful. He also asserted other relevant considerations for harshness were the loss of opportunity to transfer to a role in Government, his length of service of three and a half years, and despite the issuing of a warning in March 2022 for a breach of the Code of Conduct[77], Mr Mitsios had not been the subject of disciplinary action.
I accept that these matters may be relevant to a finding of harshness, but in my view, they do not outweigh the conduct itself and its impact on fellow employees. Mr Mitsios’ service was not overly long, and his disciplinary history was not unblemished. I accept obtaining new employment will be difficult for Mr Mitsios’, but this does not outweigh the other considerations.
The Applicant asserts that the Respondent improperly relied on the warning issued to Mr Mitsios in March 2022 in deciding to terminate his employment. Mr Mitsios says that the warning was disputed, the circumstances different to those in issue here and two years had passed since the conduct leading to the warning had occurred.[78] Mr Sareen accepts that he considered the warning and “thought it relevant to the decision [he] made” regarding the termination of Mr Mitsios’ employment, he said: “I considered that the warning was determinative of my decision. That is, the other reasons … and in particular, the health and wellbeing impact of [Mr Mitsios’] conduct on other employees was serious enough by themselves that I considered it warranted termination in any case.”[79] I accept that the warning of March 2022 was not determinative of the Respondent’s decision to terminate the Applicant’s employment.
Mr Mitsios agreed in cross examination that he was subject to the terms of his employment contract, and as a result was required to comply with the Respondent’s policies and procedures. Mr Mitsios also agreed in cross examination that he understood the Respondent’s Code of Conduct.[80] The Respondent alleges that Mr Mitsios’ breached the Code of Conduct when he failed to observe standards of behaviour and integrity, work safely, treat other employees with respect, courtesy and dignity, not verbally assault other employees and comply with work health and safety laws. Mr Mitsios “accepted in cross examination that yelling and aggression at other employees is inappropriate, unprofessional, disrespectful and might cause a risk to mental health.”[81] I accept the Respondent’s submission that the conduct I have found to have occurred involved a lack of respect towards Mr Christie, Ms Turner and Ms Javaheri and was in complete contrast to the behaviours set out in the Code of Conduct.[82]
The Respondent submits that Mr Mitsios also breached work health and safety laws in creating psychosocial hazards[83]. In my view it is not necessary that I make findings in that regard given my other findings.
Conclusion
Mr Mitsios committed misconduct when he subjected his colleagues and managers to aggressive and intimidating conduct. Mr Mitsios’ behaviour was distressing and detrimental to the wellbeing and safety of his colleagues and managers. Mr Mitsios denied the conduct and rather considered himself the target of bullying and harassment, which in his mind justified a level of emotional response. Mr Mitsios showed no insight into or remorse for his behaviour. There was a valid reason for the termination of Mr Mitsios’ employment.
There are no other matters which lead to a conclusion that the dismissal was harsh, unjust or unreasonable.
As Mr Mitsios was not unfairly dismissed from his employment, his application for a remedy is dismissed.
An order to dismiss the matter will be published concurrently with this decision.
COMMISSIONER
Appearances:
A Lazarevich and D Gluche of Websters Lawyers with permission, on behalf of the Applicant, D Mitsios.
P Healey and B Mackay of Snow Legal with permission, with S Hutton on behalf of the Respondent.
Hearing details:
Adelaide
2024
11 and 12 November.
[1] Respondent’s Outline of submissions at paragraph 43.1.
[2] (1995) 185 CLR 410 at [465].
[3] Sayer v Melsteel[2011] FWAFB 7498 at [20].
[4] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at [373].
[5] Edwards v Justice Giudice [1999] FCA 1836 at [7].
[6] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at [23]-[24].
[7] Statement of the Applicant at paragraph 22.
[8] Statement of Ms Turner at paragraph 15 and 17.
[9] Statement of Ms Turner at paragraph 18.
[10] Statement of Ms Turner at paragraph 19.
[11] See statement of Ms Turner at paragraph 16.
[12] Statement of Mr Christie at paragraphs 26-29 and 35.
[13] Statement of the Applicant at paragraph 31.
[14] Statement of the Applicant at paragraph 29.
[15] Statemen of Mr Phillips at paragraph 8.
[16] Statement of Mr Phillips at paragraph 8.
[17] Statement of Mr Phillips at paragraph 9.
[18] Statement of Applicant at paragraph 29.
[19] Transcript at PN 828.
[20] Statement of Mr Christie at paragraph 42.
[21] Ibid at paragraph 45.
[22] Ibid at paragraph 48.
[23] Statement of Mr Christie at paragraph 21-22.
[24] Statement of the Applicant at paragraph 30.
[25] Email from HR to Applicant – Annexure DM7 to Statement of the Applicant.
[26] Statement of Applicant at paragraphs 17 – 19 and Applicant’s closing submission at paragraph 17.
[27] Statement of Mr Sareen at paragraphs 5 and 7.
[28] Respondent closing submission at paragraph 99.
[29] Statement of the Applicant at paragraph 37.
[30] Statement of the Applicant at paragraphs 37.
[31] Statement of the Applicant at paragraph 38.
[32] Statement of the Applicant at paragraphs 38 – 39.
[33] Statement of the Applicant at paragraph 40.
[34] Statement of the Applicant at paragraph 40.
[35] Response to show cause process of 27 June 2024.
[36] Statement of Mr Christie at paragraph 50.
[37] Statement of Mr Christie at paragraph 50.
[38] Statement of Mr Christie at paragraph 51.
[39] Statement of Mr Christie at paragraph 65.
[40] Statement of Ms Javaheri at paragraphs 20 – 21.
[41] Transcript at PN 173.
[42] Annexure PC-1 to the Statement of Mr Christie.
[43] Also noted in the show cause response of 27 June 2024.
[44] Statement of the Applicant at paragraph 44.
[45] Statement of the Applicant at paragraph 49.
[46] See Applicant response to show cause process of 27 June 2025.
[47]
[48] Statement of Ms Turner at paragraphs 26 – 43.
[49] Statement of Ms Turner at paragraph 38.
[50] Statement of Ms Turner at paragraph 46.
[51] Statement of Ms Turner at paragraph 50 – 51.
[52] Statement of Ms Turner at paragraph 61.
[53] Statement of Ms Turner at paragraph 62.
[54] Statement of Ms Turner at paragraph 52.
[55] Statement of Ms Turner at paragraph 52.
[56] Statement of the Applicant at paragraph 53.
[57] Statement of the Applicant at paragraph 54.
[58] Statement of the Applicant at paragraph 55.
[59] Statement of the Applicant at paragraph 61.
[60] I note Ms Javaheri does not agree Mr Kreslin approached them.
[61] Statement of the Applicant at paragraph 57.
[62] Statement of the Applicant at paragraph 58.
[63] Statement of Ms Hansen at paragraph 5.
[64] See statemen of Mr Kreslin at paragraphs 4 – 8.
[65] Statement of Ms Javaheri at paragraphs 25 – 36.
[66] Statement of Ms Javaheri at paragraphs 60 - 63
[67] Statement of the Applicant at paragraph 34.
[68] Transcript at PN 577.
[69] See Respondent’s closing submissions at paragraph 86 – 91.
[70] Transcript at PN 828.
[71] Respondent’s closing submissions at paragraph 104.
[72] Bartlett v Ingleburn Bus Services Pty Ltd[2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd[2020] FWCFB 533 at
[55].
[73] Applicant’s closing submissions at paragraphs 93 – 94.
[74] Statement of Mr Sareen at paragraph 7.
[75] Statement of the Applicant at paragraph 29.
[76] Applicant’s closing submissions at paragraph 104.
[77] Annexure MS-2 to the Statement of Mr Sareen.
[78] Applicant’s Outline of submissions at paragraph 25.
[79] Statement of Mr Sareen at paragraph 8.
[80] Transcript at PN 238.
[81] Respondent’s closing submissions at paragraph 64 and transcript at PN 257 – 267. .
[82] Respondent’s closing submissions at paragraph 65 – 66.
[83] Respondent’s closing submissions at paragraph 67 – 71.
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