Frank Natoli v Envision Employment Services

[2018] FWC 4034

[2018] FWC 4034

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Frank Natoli
v
Envision Employment Services
(U2017/8670)

COMMISSIONER CRIBB MELBOURNE, 6 JULY 2018

Application for an unfair dismissal remedy.

[1] Mr Frank Natoli (the Applicant) has made an application for an unfair dismissal remedy, under s.394 of the Fair Work Act 2009 (Cth) (the Act), in relation to his dismissal by Envision Employment Services (the Respondent, Envision) on 25 July 2017.

[2] A conciliation conference was held on 6 September 2017 but was unsuccessful in assisting the parties to reach an agreement. A determinative conference was held on 23 November 2017, followed by two days of hearing on Thursday 8 February 2018 and Friday 9 February 2018. Written closing submissions were filed on behalf of the Applicant on 1 March 2018 and by the Respondent on 16 March 2018. Submissions in reply, on behalf of the Applicant, were filed on 23 March 2018.

[3] Mr Natoli gave evidence as did, on behalf of the Respondent, Mr Sean Teer, Director, Mr Martin Collins, Supervisor, and Ms Renata Johnston, Supervisor. Mr Natoli was represented by Mr Nicholas Dircks, consultant, and Envision by Mr Gregory Raines, consultant.

Legislative framework

[4] Section 387 of the Act sets out the matters that the Fair Work Commission (the Commission) must take into account in determining whether a dismissal was harsh, unjust or unreasonable. It provides as follows:

“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.”

[5] I will deal with each of these matters in turn.

Introduction

[6] Mr Natoli was dismissed by Envision following substantiation by the employer of four allegations that had been made in relation to Mr Natoli’s conduct. This followed an investigation by Mr Teer and an external investigator. The first allegation was that, on 22 June 2017 and 27 June 2017, Mr Natoli had interactions with a participant which Envision described as harassment. The second allegation concerned Mr Natoli, on 27 June 2017 and 29 June 2017, calling the female participants in the sewing room “witches” (27 June 2017) and calling “one of the women in the sewing room a witch” (29 June 2017). 1 Further, it was alleged that, on 29 June 2017, after a complaint about this was made to Mr Collins, Mr Natoli had “stormed into the sewing room and confronted the participants” and “made an offensive gesture towards the women”.2

[7] The third allegation was that Mr Natoli had intimidated one of the participants who had raised concerns about his behaviour and, when Mr Collins attempted to challenge him, a violent argument had ensued. Another supervisor had then removed both Mr Natoli and Mr Collins to the tearoom. It was also alleged that Mr Natoli had challenged Mr Collins and suggested to Mr Collins that they both step outside. The final allegation was that Mr Natoli had refused to apologise for any offense or distress he had caused the participants. Envision alleged that Mr Natoli’s follow-up actions towards the participants demonstrated a lack of empathy and understanding of the work Envision did.

[8] As indicated during the hearing, the Commission is required, in cases where the reason for dismissal relates to the conduct of the employee, determine for itself, on the basis of the evidence before it, whether the alleged conduct took place and what it involved. Therefore, in dealing with the requirements of s.387(a) of the Act – was there a valid reason for the dismissal – the Commission will, in the first instance, address each of the allegations and make findings of fact in relation to the allegations. The Commission will then address each of the other subsections of s.387 of the Act in turn.

Was there a valid reason – s.387(a)

[9] The witness evidence in this case focused predominantly on the allegations that had been made in relation to Mr Natoli. A large proportion of that evidence was hearsay evidence. The question of the weight to be given to hearsay evidence was dealt with during the hearing, on the basis that the Commission would apply the normal rules in relation to the weight given to hearsay evidence (compared with direct evidence). 3

Allegation 1

[10] It was alleged by Envision, that on 22 June 2017, Mr Natoli had asked a participant out and that she had said no. It was alleged that the participant had complained to the supervisor that that had made her feel uncomfortable. 4

[11] The second part of the allegation was that, on 27 June 2017, Mr Natoli had approached the same participant insisting that she drank from his coffee. It was further alleged that the participant had asked Mr Natoli to move away as Mr Natoli was sitting too close to her. 5

[12] The witness evidence provided in relation to this allegation was given by Mr Natoli, Mr Teer and Ms Johnston. Mr Natoli had been one of the two people involved in the exchanges on 22 June 2017 and 27 June 2017. The other person was the participant who was not called to give evidence. Mr Teer was not present on either of these occasions but had been told about what had happened by Ms Johnston. Ms Johnston did not witness these two exchanges either but was told about the incidents by participant T.

(a) Witness evidence

Mr Natoli

22 June 2017

[13] It was Mr Natoli’s evidence that:

•  he had casually asked the lady (participant T) if she would like to join him for lunch. 6

•  participant T had responded “I’ll think about it”. 7

•  he had left it at that and did not ask again, although participant T did not say no nor did she say that there was an issue with him asking her this question. 8

•  he explained that he was going to lunch up the street and had asked participant T if she would like to come as he was going up the street. Mr Natoli said that he used to ask other participants as he was “…a bit of the - the man [who] came up with all the solutions”. 9

•  he would go into the sewing room a couple of times a day to see how they were going but did not spend a huge amount of time in there. Mr Natoli stated that he had every right to be in every part of the factory because he was a supervisor. 10

•  he used to go around to the various Envision sites to help out with their problems and when they got behind. Mr Natoli stated that he “…was the go to man.” This was said to be especially so at the Thomastown branch which had a cafe just down the road and they used to go down there regularly as a group for lunch breaks. It was stated that it was a standard thing to do and was innocent. 11

•  his response to the question from Mr Teer (during the walk/talk) – “did you ask a participant out?”, was “[Y]es, I did.” Mr Natoli recalled that he had told Mr Teer that he had only asked participant T the once and never again. It was stated that he also told Mr Teer that he did not see any harm in it as there was no intention involved. 12

•  participant T was supposed to be out in the workshop but was mainly in the sewing room. Mr Natoli indicated that he thought that he had gotten on okay professionally with participant T. 13

•  participant T was a participant and he was a supervisor but it was pretty low-key. Mr Natoli said that he wasn’t there with a whip. 14

•  there was no reason for participant T to say that she was never going to return to the program. 15

•  no other participants had never made a complaint to him before. 16

27 June 2017

[14] Mr Natoli gave evidence that:

•  he had brewed some proper plunger coffee and asked the participants in the sewing room if either of them (participants T and W) wanted a “proper coffee”. He had indicated to them that the mug he had brought in hadn’t been drunk out of. Mr Natoli stated that both participants declined. 17

Mr Teer

[15] Mr Teer provided a witness statement 18 and also gave oral evidence.

22 June 2017

[16] It was Mr Teer’s evidence that:

•  the organisation’s focus is to assist extremely long term disadvantaged jobseekers and those with special needs i.e. disadvantaged and vulnerable jobseekers. 19

•  he did not witness any of the incidents that gave rise to the allegations in relation to Mr Natoli. 20

•  when he had a conversation with Mr Natoli, Mr Natoli had said that he was just going out for lunch around the corner. 21

•  during his conversation with participant T, as part of the investigation, Mr Teer recounted that he had asked her questions, one of which was if she had mentioned to Mr Natoli that she was not interested (in going out to lunch). It was said that participant T had explained that she did not know how to tell Mr Natoli and so had just avoided it and let it go. 22

•  Mr Teer recalled that, during this conversation, participant T had advised that she had previously been through an abusive relationship and she was concerned that she had high levels of anxiety and had real concerns that she did not want to say no. It was recounted that participant T did not want to get involved in anything – particularly a supervisor who had asked her out for lunch and was also getting close to her and she was very, very anxious. Participant T was also said to have indicated that she was not coming back to the project because she was being harassed and that it was of a predatory nature and she was concerned because of her previous relationship. 23

•  it was explained that the information that Mr Teer received, which formed the basis of Allegation 1, came from Ms Johnston and also from participant T (during the investigation). 24 Mr Teer stated that Allegation 1, as set out in the letter of 19 July 2017, was based on Ms Johnston’s statement and that he had subsequently spoken to participant T.25 It was acknowledged by Mr Teer that there was a difference between Ms Johnston’s statement and what participant T had said to him as part of his investigation.26

•  Mr Natoli was recalled to have denied the allegations. Mr Teer recounted that, in answer to the question as to whether he asked a participant out, Mr Natoli had said that he had asked the participant out but that it was just harmless because it was a lunch date around the corner. 27

Ms Johnston

[17] Ms Johnston provided a witness statement 28 and gave oral evidence. It was Ms Johnston’s evidence that participant T had spoken to her first thing on Thursday morning 22 June 2017. Participant T was said to have told her that Mr Natoli had asked her to have lunch with him. It was recounted that participant T did not want to and was uncomfortable that Mr Natoli had asked her. Participant T was recalled to have also said that all she wanted to do was come in and do her hours.29

[18] It was explained by Ms Johnston that she had asked participant T whether she had told Mr Natoli that she was not interested and participant T had said that she hadn’t. This was because she didn’t know how to tell him so would just avoid it and let go. 30

[19] With respect to the second part of the allegation, it was Ms Johnston’s evidence that participant T told her, on Thursday, 29 June 2017, that Mr Natoli had been in the sewing room the previous day (28 June 2017). T had explained that Mr Natoli had insisted she have a taste of his coffee and that she had declined. Participant T had further said that she had asked Mr Natoli to move away from her as she had a cold and was sitting close to her. Mr Natoli had moved across the room to near participant W. 31

(b)  Submissions

Applicant

[20] It was submitted on behalf of Mr Natoli by Mr Dircks that there was no valid reason for Mr Natoli’s dismissal. It was argued that the terminology of the allegations relied on for the dismissal were unsustainable overstatements which were not supported by the evidence. 32

22 June 2017

[21] With respect to the first part of Allegation 1, the Applicant contended that the only person who gave direct evidence about the allegations was Mr Natoli. Mr Natoli’s evidence was recalled to have been that he had asked participant T if she wanted to join him for lunch and that she had replied that she would think about it. 33 It was stated that Ms Johnston’s (hearsay) evidence supported Mr Natoli’s evidence including that participant T had not indicated to Mr Natoli that she wasn’t interested.34

[22] In terms of Mr Teer’s (hearsay) evidence, Mr Dircks contended that participant T’s evidence about the alleged interaction had changed over time. It was stated that participant T told Ms Johnston one thing and Mr Teer, as part of his investigation, something different. 35 Mr Dircks submitted that the phrase “asked out” the participant in the allegation, was a deliberately loaded phrase that was intended to attach a romantic or sexual connotation which was not supported by the evidence.36

[23] Finally, Mr Dircks contended that the only direct evidence was that of Mr Natoli and that there was no evidence of the alleged harassment or misconduct. 37

29 June 2017

[24] In relation to the second part of this allegation, Mr Dircks contended that it also contained the quotation that Mr Natoli’s behaviour constituted harassment. Mr Natoli’s evidence was referred to as was Ms Johnston’s (hearsay) evidence regarding what participant T had told her. 38

[25] With respect to Mr Teer’s (hearsay) evidence, the Applicant argued that Mr Teer’s evidence supported the contention that Mr Natoli had made an offer of coffee and that the participant was unwell and didn’t want to have anything to do with Mr Natoli. 39

[26] It was submitted that there was no evidence of harassment or misconduct by Mr Natoli. 40

Respondent

[27] It was contended by Envision that Mr Natoli was dismissed for serious misconduct – violent and inappropriate behaviour in the workplace which resulted in the police being contacted. The definition of serious misconduct in the Fair Work Regulations was highlighted in this regard. 41

[28] Envision contended that there were witnesses to the incidents who had provided evidence in the Commission. On the other hand, Mr Natoli was said to have provided no independent witnesses. 42

[29] With respect to the Applicant’s argument that the true reason for his dismissal was the Respondent’s alleged need to reduce the number of supervisors, it was stated that the evidence was that Mr Natoli had been replaced following his dismissal. 43

[30] The Respondent submitted that there was a valid reason for Mr Natoli’s dismissal. It was stated that Mr Natoli had admitted to using an offensive gesture to female participants and that he was aware that the female participant had previously experienced domestic violence. Despite Mr Natoli denying that he had called the participants witches, it was stated that all three participants, during the investigation, had said that he had and in a highly aggressive manner. 44

(c) Considerations and conclusions

First incident

[31] This allegation concerns two alleged incidents between Mr Natoli and participant T. The first incident related to the allegation that, on 22 June 2017, Mr Natoli “asked a participant out”. She advised “no” and complained to the supervisor that this made her feel uncomfortable”. 45

[32] There were two people directly involved in the exchange about lunch – Mr Natoli and participant T. There were no witnesses to this conversation. It is apparent that participant T complained to Ms Johnston who advised Mr Teer about the incident. As part of the employer’s investigation, Mr Teer called participant T and spoke to her about what had happened.

[33] The direct evidence before the Commission is from Mr Natoli. Mr Natoli’s evidence was that he had asked participant T if she wanted to join him for lunch and she had replied that she would think about it. It was explained by Mr Natoli that it was an innocent question and that, previously, a group of people would often go together to the nearby cafe in their lunch breaks.

[34] Ms Johnston’s account of what participant T had told her was that Mr Natoli had asked her (participant T) to have lunch with him. It was Mr Teer’s evidence that, when he had asked Mr Natoli, Mr Natoli had told him that he was just going out for lunch around the corner. When Mr Teer had telephoned participant T and spoken to her, participant T had said that she felt that there was a greater implication in the invitation to lunch.

[35] With respect to participant T’s response to Mr Natoli’s question about lunch, it was Mr Natoli’s, Mr Teer’s and Ms Johnston’s evidence that participant T had not told Mr Natoli either “no” or that she wasn’t interested in going out to lunch with Mr Natoli. Mr Teer indicated that that part of the allegation was based on the information he had received from Ms Johnston.

[36] On the basis of the evidence before me, I find that, on 22 June 2017, Mr Natoli did ask participant T if she would like to join him for lunch. I also find that participant T did not tell Mr Natoli that she wasn’t interested in going for lunch or say “no”.

Second incident

[37] The second alleged incident concerned Mr Natoli “insisting that she (participant T) drink from your coffee. She (participant T) has reported asking you to move away as you were sitting too close”. The allegation also included that another participant noticed that Mr Natoli was upsetting participant T and involved Mr Natoli in her reiki therapy. 46

[38] Again, this incident concerned an exchange between Mr Natoli and participant T. It was Mr Natoli’s evidence that he had brewed some proper plunger coffee and had asked the participants in the sewing room if they wanted a “proper coffee”. Mr Natoli recalled indicating that the mug he had brought in had not been drunk out of. It was stated that both participants had declined the offer.

[39] The only other evidence before the Commission is Ms Johnston’s account of what participant T told her. Participant T had recounted to Ms Johnston that Mr Natoli was insisting that she have a taste of his coffee. Participant T was said to have then declined and had asked Mr Natoli to move away from her as she had a cold and he was sitting too close.

[40] It was common ground across the two accounts that Mr Natoli offered participant T coffee which was in the mug in his hand. It is probable that Mr Natoli offered the coffee as “proper coffee”. It is also not disputed that participant T declined the offer.

[41] There does not appear to be any evidence from Mr Natoli regarding the allegation that participant T asked Mr Natoli to move away from her as he was sitting too close. This allegation appears to be based on what participant T told Ms Johnston who then advised Mr Teer. However, it was Mr Natoli’s evidence that participant W had engaged with him and offered to do, and then did, some reiki therapy on him. Therefore, it can be said that another participant had involved Mr Natoli in her reiki therapy.

[42] Therefore, in relation to the second incident, I find that Mr Natoli offered participant T “proper coffee” which was in the mug in his hand which hadn’t been drunk out of and that participant T had declined the offer. I also find that another participant (participant W) had engaged with Mr Natoli and had involved him in reiki therapy. The only evidence supporting the allegation that participant T asked Mr Natoli to move away from her as he was sitting too close was Ms Johnston’s account of what she was told by participant T. Given the findings already made, it is probable that participant T asked Mr Natoli to move away as he was sitting too close.

Allegation 2

[43] It was alleged that, on 27 June 2017, Mr Natoli had bullied participants by calling the female participants in the sewing room “witches”. A complaint was made to Mr Collins, on 29 June 2017, that Mr Natoli had called one of the women a “witch”. It was alleged that shortly after being advised of this, Mr Natoli had stormed into the sewing room and confronted the participants. It was also alleged that Mr Natoli made an offensive gesture towards the women. 47

(a) Witness evidence

[44] Mr Natoli gave evidence on this matter as did Mr Teer, Ms Johnston and Mr Collins. Ms Johnston did not directly witness the exchanges between Mr Natoli and the participants on either 27 June 2017 or 29 June 2017, but was told by the participants what had happened. Mr Collins gave evidence that he had witnessed the gesture allegedly made by Mr Natoli.

Mr Natoli

27 June 2017

•  Mr Natoli denied calling participant T or any of the participants a witch and stated that that would be offensive. 48

•  it was participant T who said the word “witch”. 49 Mr Natoli recalled that participant T had said herself that her previous boyfriend had called her a witch and had taken out an intervention order against her.50 It was stated that the three of them made a few jokes.51

•  Mr Natoli explained that the conversation was lighthearted and had been initiated by participant T and not by himself. 52

•  participant W had then suggested that, as he did not look well, she could do some reiki on him, which she then did. At the end of the reiki therapy, it was recalled, by Mr Natoli, that he needed to get back to work. 53

•  he would put lollies in the workshop for the boys out there and that participant W used to do that as well. Mr Natoli explained that he would also put lollies in the sewing room for the ladies. When he went in, there were a couple of ladies there. They had all been talking and smiling and laughing and when he left the room after the reiki therapy with participant W, participant T said “no more lollies”. Mr Natoli said that he had responded not to eat them then. 54

•  he had then made the two finger gesture and participant T had said that that was a rude sign. Mr Natoli stated that he had responded by apologising and saying that he had not meant to offend her and that, in Australian culture, “....we sort of do that”. It was accepted by Mr Natoli that the gesture was offensive and he had apologised at the time. 55

•  he did not understand if the two finger salute was of a terrible significance or the full ramifications of that gesture. Mr Natoli indicated that he had never heard that the meaning of the gesture was “fuck you” and so did not know that that was what it meant. Rather, he had thought that the single finger meant that. Mr Natoli stated that he was not a person who went around abusing people and that it was not meant to be abusive. 56

•  his understanding of the two finger gesture was that it was a sarcastic gesture and explained that that was how it was used at the time. Mr Natoli said that it was meant in a sarcastic and joking manner and not maliciously. It was stated to have been a friendly gesture. 57

•  the only prior contact he had had with participant W was when he had a discussion with her about her skills in relation to the caravan project that he was supervising. Mr Natoli recalled that participant W had said she could paint and so was going to develop some ideas for artwork on the outside of the van. 58

•  when he was asked by Mr Teer about whether he had called a participant W a witch, Mr Natoli denied it to Mr Teer. 59

•  Mr Natoli stated that he had never been asked by management to apologise for anything else. 60

•  he had never been cautioned about behaviour that may have been construed as sexual harassment. 61

•  he stated that he himself had written the word “jocular” in his witness statement. 62

29 June 2017

•  on Wednesday 5 July 2017 (not 29 June 2017), he went into the sewing room and saw that glasses and plates had been used for dirty paintbrushes and to mix paint and that there was paint on the workbenches. Mr Natoli said that he was advised that it had been participant W who had been doing the painting. 63

•  he spoke to Ms Johnston who told him that Mr Collins had already said that he would speak to participant W about this. 64

•  he stated that Mr Collins had then spoken to him and told him that participant W was upset because he (Mr Natoli) had called her a witch yesterday. He denied calling participant W or anyone else a witch. Mr Natoli also denied charging into the sewing room. 65

•  Mr Natoli stated that he had left the sewing room on friendly terms and that he had not charged out of there either. It was stated that he had returned to working on the caravan. 66

Mr Teer

[45] Mr Teer gave evidence that:

•  in terms of the sequence of events, after the 6 July 2017 incident (involving Mr Collins, participant W and Mr Natoli), he became aware of the event on 6 July 2017 together with the previous incidents in relation to the female participants. 67

•  on or around 29 June 2017, he was notified of serious workplace allegations of bullying and harassment by Mr Natoli of three female participants. Mr Teer stated that Ms Johnston had interviewed the participants. It was recalled that Ms Johnston had advised him about Allegation 1 (that Mr Natoli had asked a participant out on 22 June 2017). 68

•  two participants did not return after the 29 June 2017 incident because they had anxiety and fear over returning to Envision. They were participant T and participant H. Mr Teer stated that he had spoken to participant T and that participant H’s reasons for not returning to Envision were relayed to him via participant W and Ms Johnston. 69

•  the reason that participant H did not return was because she took offense at being given the two fingered salute. 70

•  Mr Teer recounted that Ms Johnston and Mr Collins had told him that Mr Collins had been approached by one of the participants who made a complaint (on 29 June 2017) that Mr Natoli had called one of the participants a witch on 27 June 2017. Mr Teer said that he was told that Ms Johnston then went into the room and spoke to the participants about it. Ms Johnston had also been advised about this by Mr Collins. Mr Teer was also told that, after speaking to the participants, Ms Johnston had spoken to Mr Natoli about the allegation. 71

•  the bullying and sexual harassment allegations were based on what occurred on 29 June 2017. 72

•  Ms Johnston had advised him of the verbal complaints that had been made to her by the participants in the sewing room about the incident that had occurred on 27 June 2017. This incident was recalled to have concerned Mr Natoli offering a coffee to participant T who apparently had then been sick and did not want to have anything to do with Mr Natoli. It was recalled that another participant (W) had tried to deflect Mr Natoli from participant T and so had done some reiki on his neck. Mr Teer also said that participant T was under great stress and anxiety and felt intimidated by Mr Natoli because she had previously been asked out to lunch by Mr Natoli. In addition, Mr Teer recounted that Mr Natoli had referred to participant W as a witch and afterwards gave them the two fingers. 73

•  they also advised Mr Natoli that participant W had made an accusation that he had called her a witch. Mr Natoli’s response was said to have been that he had acknowledged that he had called one of them a witch but Mr Teer was unsure as to which of the participants it was.

Mr Collins

[46] Mr Collins provided a witness statement 74 and gave oral evidence. It was Mr Collins’ evidence that:

•  Mr Natoli did not tell him that he disliked the three participants but he demonstrated it. 75 Mr Collins said that Mr Natoli had decided to dislike three female participants and that they had reported to him (Mr Collins) that they felt uncomfortable around Mr Natoli. Participant W was one of these three.76

•  sometime between 22 and 29 June 2017, Mr Natoli, in one of his rants to himself and Ms Johnston said, in effect, that he was going to deliberately make things unpleasant for the participants. 77 Mr Collins did not recall the actual words but he remembered clearly the tone of the conversation.78

•  Mr Natoli had said this in an angry, aggressive tone. 79

•  he did not report this to Envision’s directors at that time. This was because they were trying, in-house, to give Mr Natoli some leeway in making amends for his behaviour. 80

•  he was not a witness to the conversation between Mr Natoli and the participant in the sewing room on 22 June 2017, nor was he witness to the one between the same participant and Mr Natoli regarding coffee on 29 June 2017. Mr Collins stated that he was involved in later events on 29 June 2017. 81

•  he did not hear Mr Natoli say “witch” but he did see the gesture. Mr Collins explained that he was standing outside the sewing room and the sewing room door has a clear glass panel and it was ajar (not shut). 82

Ms Johnston

[47] It was Ms Johnston’s evidence that, on 29 June 2017, she was requested to go into the sewing room by Mr Collins as the three female participants were very upset. This was as a result of Mr Natoli storming into the sewing room having been advised by Mr Collins that the participants were uncomfortable and upset about, and offended by, Mr Natoli’s behaviour the previous day. 83

[48] Ms Johnston stated that the participants told her that:

•  after the reiki therapy, Mr Natoli said to participant W that he felt better and that “now we have two witches here”. 84

•  participant W was very offended and hurt by Mr Natoli’s comment about her being a witch as she took her healing very seriously. 85

[49] With respect to the two finger gesture, it was reported to Ms Johnston by the three participants that:

•  Mr Natoli offered them some sweets and they declined.

•  Mr Natoli then put up his two fingers to the ladies.

•  participant T told Mr Natoli that the gesture was very rude and Mr Natoli had apologised and said that he hadn’t meant anything offensive by it. 86

(b) Submissions

Applicant

[50] Mr Dircks submitted that this allegation was in two parts with the alleged “witches” comment being made on 27 June 2017 and the gesture incident allegedly on 29 June 2017. It was contended that there was no evidence that supported the gesture being made on 29 June 2017. 87

[51] With respect to Mr Natoli’s evidence (the only direct evidence), this was said to be that the two participants made a few jokes after participant T had said that her previous boyfriend had called her a witch. Mr Natoli said that he had not called participants T or W “witches”. Mr Dircks argued that there was no direct evidence that Mr Natoli had called any or all of the participants “a witch” or “witches” on 27 June 2017 or on 29 June 2017. 88

[52] It was argued that the allegation that Mr Natoli had stormed into the sewing room and made an offensive gesture was not supported by either Mr Natoli’s or Ms Johnston’s evidence. Further, it was recalled to be Mr Natoli’s evidence that he had given the “two finger salute” in a sarcastic manner after the participants had declined his offer of sweets and that participant T had taken offense. 89

[53] Mr Dircks contended that the two finger salute has a sarcastic and non-aggressive connotation and had been used by a number of historical public figures. 90 The Applicant rejected the proposition that the agreed definition of the two finger salute is “fuck you” and argued that using the middle finger was more about this.91

[54] Ms Johnston’s (hearsay) evidence was highlighted as supporting Mr Natoli’s version of events. It was argued that there was no evidence challenging Mr Natoli’s and Ms Johnston’s evidence that, after Mr Natoli had made that gesture, he had apologised when one of the participants took offense and explained that he hadn’t meant to offend. 92

[55] With respect to Allegations 1 and 2, Mr Dircks submitted that Ms Johnston’s evidence did not support the specifics of Allegations 1 and 2. This was said to be despite the fact that Ms Johnston was the source of these allegations relating to bullying and sexual harassment. It was contended that the Respondent’s misrepresentation of the allegations as more serious than had been reported demonstrated prejudice against Mr Natoli during the investigation and his subsequent dismissal. 93

Respondent

[56] The Respondent stated that Mr Natoli’s claim that he was never privy to the disadvantages of the participants was incorrect. This was because it was said to be standard practice that the supervisors were made aware of participants’ challenges during an induction. 94

(c) Considerations and conclusions

[57] There are two matters which are unclear from Allegation 2, as set out in the letter to Mr Natoli from Envision, dated 19 July 2017. Firstly, it appears that it is alleged that there were two incidents when Mr Natoli used the word ‘witch’. The first time was when Mr Natoli allegedly called the participants witches after the reiki session on 27 June 2017. The second incident seems to have been when Mr Natoli described one of the female participants as a witch. The precise date on which the second incident occurred is not clear.

[58] Secondly, it seems from the allegation letter that, prior to Mr Natoli making the alleged offensive gesture towards the women, he had stormed into the sewing room after Mr Collins had told Mr Natoli (on 29 June 2017) that there was a complaint that Mr Natoli had called one of the women in the sewing room a witch. The timing of Mr Natoli allegedly storming into the room and when he made the two finger gesture does not seem to match the evidence before the Commission. This is on the basis that these two events seem to have occurred at different times.

[59] I will deal with the witches/witch allegations first, then the two finger gesture and the storming into the sewing room allegation last.

Witches/witch allegation

[60] As set out above, the letter of allegations, dated 19 July 2017, from Envision, referred to two separate incidents during which Mr Natoli allegedly referred to all of the participants as witches and then, separately, allegedly called one participant a witch.

[61] With respect to the allegation that, following the reiki therapy, Mr Natoli had called the participants witches, the only evidence before the Commission which supports this allegation is that of Mr Teer. Mr Teer’s evidence is inconsistent with Ms Johnston’s evidence. It is noted that Ms Johnston was the source of the information for this allegation. Mr Natoli denied calling the participants witches and this alleged incident was not mentioned in Ms Johnston’s account of her conversation with the participants regarding what had happened during the time of the coffee offer/move away from me/reiki therapy. This is when it was alleged that Mr Natoli had made that comment to all of the participants. Therefore, I am unable to make a finding that Mr Natoli called the female participants in the sewing room “witches”.

[62] The second “witch” allegation seems to have been the substance of a complaint to Mr Collins, by one of the participants, that Mr Natoli had allegedly called her a witch. It would seem that participant W alleged that Mr Natoli had commented to her “now we have two witches here” at the end of the reiki therapy. In Ms Johnston’s account of the conversation she had with the three participants, she recorded that participant W alleged that Mr Natoli had referred to her as a witch and had commented that “now we have two witches here”.

[63] It was Mr Natoli’s evidence that it was participant T who had said that her ex-boyfriend had called her a witch and taken an intervention order out against her. Mr Natoli denied calling any or one of the participants a witch.

[64] With respect to this particular “witch” allegation, on the balance of probabilities, I find that it is probable that Mr Natoli made the comment as alleged or to that effect. In making this finding, it is accepted that it was participant T who made the initial comment about a witch when she said that that was what her boyfriend had called her.

Two finger gesture

[65] In terms of this aspect of the allegation, the letter of allegations from Envision appears to indicate that the two finger gesture occurred after Mr Natoli stormed into the sewing room. It also appears, timing wise, to not be connected with the series of incidents that included the reiki therapy. Stepping back and looking at the evidence as a whole, it would seem that the sequence of events on 27 June 2017 in the sewing room was firstly, the offer of coffee to participant T and participant T asking Mr Natoli to move; followed by the reiki therapy and then the alleged comment to participant W (“now we have two witches here”) and finally, the two finger gesture. It is proposed to proceed on this basis.

[66] The other element of Allegation 2 was that Mr Natoli had made an offensive gesture towards the female participants. Mr Natoli did not deny that, in response to the three participants declining his offer of lollies, he had given them the two finger salute. It was Mr Collins’ evidence that he had witnessed Mr Natoli do that.

[67] What followed is also not in contention. Participant T took offense at the gesture and told Mr Natoli that it was a rude sign and that she was offended. Mr Natoli had apologised and said that he had not meant to offend her.

[68] Therefore, I find that Mr Natoli did make a two finger gesture to the female participants in the sewing room on 27 June 2017. Participant T told Mr Natoli that that was a rude gesture and that she was offended. Mr Natoli then apologised and said that he had not meant to offend her.

Stormed into the sewing room

[69] With respect to the allegation that Mr Natoli had stormed into the sewing room after having been advised by Mr Collins that one of the participants had made a complaint against him, it appears from the letter of allegations that this took place on 29 June 2017. It was also alleged in the letter of allegations that Mr Natoli made an offensive gesture to the female participants at this point in time.

[70] It was Ms Johnston’s evidence that, following a conversation between herself and Mr Collins, Mr Collins spoke to Mr Natoli at the end of teatime advising him that a complaint had been made that he had called one of the participants a witch. It was stated by Ms Johnston that Mr Collins had then shouted to her to come quickly and it was recalled that she heard raised voices. Ms Johnston stated that she then saw Mr Natoli storm out of the sewing room very angry and that he went towards the office. It was recalled that, after a short time, Mr Natoli left the site very angry. 95

[71] Ms Johnston explained that, after Mr Natoli had left the site, Mr Collins asked her to go in and speak with the participants to calm the situation. It was recalled that the participants were very upset at what had just happened. It was during this conversation, that Ms Johnston asked the participants about what had started this and they had explained what had occurred the day before – the coffee etc. incidents. 96

[72] Mr Collins did not provide written or oral evidence in relation to the allegation that Mr Natoli stormed in and out of the sewing room.

[73] For his part, during his oral evidence, Mr Natoli denied storming in or out of the sewing room. In his witness statement, no reference was made by Mr Natoli to an incident such as this.

[74] Having considered all of the material before me, on the balance of probabilities, it is probable that Mr Natoli did storm in and out of the sewing room after he had been told by Mr Collins about a complaint that had been made against him. There is nothing before me to suggest that Ms Johnston’s evidence should not be accepted.

Allegation 3

[75] Envision alleged that, on 6 July 2017, Mr Natoli was observed by Mr Collins intimidating one of the participants who had previously raised concerns about his behaviour. It was alleged that Mr Collins attempted to challenge Mr Natoli and a violent argument followed. Ms Johnston then removed both Mr Collins and Mr Natoli to the tearoom where Mr Natoli challenged Mr Collins and suggested that they both step outside. 97

[76] Evidence was given by Mr Natoli, Mr Collins and Ms Johnston in relation to this allegation, together with Mr Teer. A witness statement was also provided by participant J. 98

(a) Witness evidence

Mr Natoli

[77] It was Mr Natoli’s evidence that:

•  he had received complaints from about four people that participant W was painting in the sewing room and that there were glasses and plates in the sewing room that were being used to hold and mix paints. Mr Natoli indicated that there was also a mess all over the benches. 99

•  as participant W was under his project as a supervisor, Mr Natoli felt that he had the right to approach participant W. 100

•  he noticed that participant W and Mr Collins were out the front of the building and Mr Collins was taking photos of a couple of participant W’s paintings that she had done in the sewing room. 101

•  he approached Mr Collins and asked whether he had spoken to participant W yet about the painting in the sewing room. Mr Collins said no. 102

•  he approached participant W and said that it was inappropriate for her to be painting in the sewing room and using it as a painting area and using the plates and dishes and that she had left a mess. 103

•  participant W had lost her temper and come towards him and poked her telephone in his face and told him that he was an “idiot”. 104 Participant W had said that she would report him to the Job Access provider. Mr Natoli said that he did not know what participant W was going to report him for.105

•  he recalled raising his voice after he was called an “idiot” and responded to participant W to go ahead and report him for doing his job. 106 Mr Natoli explained that the reason he said this was because he felt that he had done nothing wrong as he had the right to chastise participant W and point her in the right direction.107

•  it was thought that participant W might have been unhappy that because he was telling her that her usage of the sewing room with the plates and glasses and paint was inappropriate. 108

•  at the time he went out to speak to participant W, participant W was crouched down for the photos on one of the chairs out the front of the building. Mr Natoli stated that he stood about a metre away from participant W and was elevated above her as she was crouched and a bit smaller and shorter in stature than himself. 109

•  Mr Collins then became involved and pushed him/put his arm across his chest and told him to leave participant W alone. Mr Natoli explained that that resulted in an argument between himself and Mr Collins. 110 After Mr Collins had pushed him with his hand on his chest Mr Natoli had responded to Mr Collins telling him to “piss off” and Mr Collins had replied “get fucked.”111

•  in terms of what happened between himself and Mr Collins, Mr Natoli explained that Mr Collins had walked inside and that he had followed him in. 112 There was a bit of argy-bargy and swearing and they went into the kitchen area.113 Mr Natoli recalled that he had said to Mr Collins that that it was ridiculous and that they worked together and had put out his hand to shake hands. Mr Collins was said to have pulled his hand away and told him that he wasn’t his mate.114

•  his impression was that Ms Johnston was at the doorway and had poked her head in for the last couple of seconds. Mr Natoli thought that she had asked them both to pipe down but had not tried to defuse the situation. This was because it was settled. It was recalled that Mr Collins had gone out the front and he went out to the back of the factory to do some work on the caravan project. 115

•  he denied the allegation that he had pushed his pointed finger into Mr Collins’ chest at least twice. 116

•  he denied suggesting aggressively to Mr Collins that they go outside and fight and angrily hitting his palm with a clenched fist and feinting a step towards Mr Collins. 117

•  he denied saying to Mr Collins, around 22/23 June 2017, that he was going to deliberately make it unpleasant for participants W, H and T and that he did that. 118 Mr Natoli disagreed with Mr Collins’ version of events and said that Mr Collins’ account was untrue.119

•  Ms Johnston did not ask him to move into the lunchroom. Mr Natoli recalled that he and Mr Collins were outside the building at the roller door where people had their lunch breaks. 120

•  he thought he had a good relationship with Ms Johnston and Mr Collins. 121

•  there were certain amounts of language in the workplace but it wasn’t part of the norm. 122

•  other people used language in the workplace and worse than “piss off” and “bullshit”. This did not include Ms Johnston. 123

•  participant W was allocated to the caravan project which he was in charge of. It was recalled by Mr Natoli that he had spoken to participant W about her skill sets and she had said that she was artistic.

•  he was one of three supervisors and had been a supervisor for over 2 years. 124 Mr Natoli confirmed that, at the beginning of June 2017, Mr Teer had called himself and the other two supervisors into the office and told them that at the start of 2018, there may only be two supervisor jobs rather than three because of a lack of projects coming through.125

Mr Collins

[78] Mr Collins gave evidence that:

•  on 6 July 2017, he was outside the factory taking photos of a participant and some artwork that she had painted. 126

•  unannounced, Mr Natoli walked up to where they were standing and started ranting at participant W. Mr Collins recalled that Mr Natoli was standing very close to the participant. 127

•  Mr Natoli was leaning forward and pointing aggressively at the participant whilst loudly ranting about cleaning up the painting supplies. Mr Collins recalled that Mr Natoli had a very angry and aggressive expression on his face. It was said that the participant was clearly intimidated by Mr Natoli’s behaviour and physical proximity. 128

•  the painting supplies were just a pretext for Mr Natoli. Mr Natoli did not tell him that but his statement was based on experience of Mr Natoli’s actions. 129

•  after Mr Natoli’s very aggressive rant, he tried to stop Mr Natoli. Mr Natoli interrupted him and pointed his finger at him and told him to shut up in a very aggressive tone. Mr Collins had then told participant W to walk away which she did. 130

•  he had then followed participant W but had gone back to Mr Natoli when he saw that the participant had met up with another participant and her mother. Mr Collins stated that participant W was crying. 131

•  when he reached Mr Natoli he had asked him rhetorically twice “[W]hat the fuck is wrong with you?” 132

•  Mr Natoli had then started yelling and was irrational and not making any sense. It was Mr Collins’ recollection that Mr Natoli was simply angry and was ranting. 133

•  he walked into the factory with Mr Natoli following and ranting. It was recalled that he and Mr Natoli ended up in the tearoom and that they were yelling at each other. Mr Collins stated that he was extremely angry but was not aggressive. It was explained that Mr Natoli became extremely aggressive and that he (Mr Collins) was yelling. Mr Collins stated that he was yelling that he was extremely disappointed in Mr Natoli’s behaviour and that he felt betrayed. This was because Mr Natoli had undermined his authority in front of a participant and had bullied the participant at the same time. 134

•  he had lost his temper and called Mr Natoli a variety of unpleasant names but did not have a clear memory of/could not recall the specific names. Mr Collins said it was quite likely that he had told Mr Natoli that he could go fuck himself and that he was a piece of shit. 135

•  he was not aggressive towards Mr Natoli as it is possible to be angry without being aggressive. 136

•  shouting at Mr Natoli and calling him a variety of names and swearing at him was not meant to be aggressive. Rather, it was said to have been meant as an act of derision and to demonstrate his extreme displeasure at Mr Natoli’s behaviour. 137

•  Mr Natoli then pushed him once and pushed his pointed finger into his chest at least twice. He and Mr Natoli were still in the tearoom partly in the doorway of the office. 138

•  he confirmed that Ms Johnston had followed he and Mr Natoli in and so was present when Mr Natoli pushed his finger into his chest at least twice. Mr Collins stated that Mr Natoli had pushed his finger into his chest twice. He was able to clarify that it was twice as he had had time to think about it since last year. 139

•  he was offended by Mr Dircks’ proposition that Mr Natoli touching him was a fabrication and denied that it was. 140

•  Mr Natoli then aggressively suggested that they go outside and fight – “do you want to go outside?” 141

•  Mr Collins could not recall whether Mr Natoli had said “fight”. 142

•  Mr Natoli was recalled to have been angrily hitting his palm with his fist whilst feinting towards him. 143

•  Ms Johnston had then physically stepped in between he and Mr Natoli to separate them. 144

•  after Mr Natoli had asked him if he wanted to go outside, he had gone outside and Mr Natoli stayed inside. Mr Collins said that this was not as a response to Mr Natoli’s invitation. 145

•  rather, he had had a brief conversation with the other participant and her mum, apologised for what had happened and thanked them for looking after participant W. 146

•  he had received a warning for using abusive language within earshot of participants as a result of this incident. 147

Ms Johnston

[79] It was Ms Johnston’s evidence that:

•  at morning tea time as she was coming out of the office, she heard raised voices and offensive language and witnessed Mr Collins storm out of the site following participant W. 148

•  she approached Mr Natoli who was standing at the roller door and asked him what was going on. There was no comment from Mr Natoli. 149

•  Mr Collins then returned to where she and Mr Natoli were standing and Mr Collins and Mr Natoli started arguing in front of everyone. 150

•  she had stepped in between Mr Collins and Mr Natoli and demanded that they both get into the office. They all went through the tearoom which then led to the office. Ms Johnston stated that she was present during this time. 151

•  they continue to verbally abuse each other (quite a heated exchange) and she witnessed Mr Collins lose his temper and shout at Mr Natoli and call him a variety of unpleasant names. Ms Johnston clearly recalled Mr Collins saying to Mr Natoli “what the f… are you doing?”. Ms Johnston was unable to remember the unpleasant names. 152

•  Mr Natoli then said to Mr Collins “[C]ome on. [W]ant to go out?” Ms Johnston stated that Mr Natoli never used the word “fight”. 153 It was recalled that Mr Natoli’s invitation to Mr Collins to go outside was said in a very angry tone.154

•  she then yelled at both Mr Natoli and Mr Collins to stop as they were both out of line and to stop using language. Ms Johnston recalled being advised by Mr Natoli and Mr Collins that they were men. It was stated that her response was that she did not care and that they do not talk like this especially in front of the public and that it was extremely unprofessional. 155

•  after Mr Natoli’s gesture, she yelled “stop it” and proceeded into the office with Mr Collins and Mr Natoli continuing to argue. Ms Johnston recalled that Mr Collins then stormed out and Mr Natoli was still with her in the office. 156 It was stated that, prior to Mr Natoli saying “[C]ome on. [Y]ou want to go out?”, Mr Natoli had gestured and then feigned a punch.157

•  she denied that Mr Natoli had indicated to Mr Collins that he was happy to shake Mr Collins’ hand and leave it be but that Mr Collins refused. 158

•  Mr Collins went back outside to see that participant W was okay. Ms Johnston stated that participant W was being consoled by another participant and her mother. It was stated that she had introduced herself and apologised and thanked both the other participant and her mother for assisting. Ms Johnston said that participant W was sent home. 159

•  Mr Collins apologised to her for his part in the incident and said that he was extremely embarrassed. 160

•  Mr Collins advised that Mr Natoli had approached participant W as he was taking a photo of her with her paintings to post on Facebook. Mr Collins had said that Mr Natoli had spoken abruptly to participant W about not painting in the sewing room, leaving a mess and using dinner plates to mix her paints. Mr Natoli was recalled to have also said that there were complaints from others in the sewing room. 161

Mr Teer

[80] Mr Teer gave evidence that:

•  on or around 6 July 2017, Mr Collins was violently abused and physically threatened by Mr Natoli after Mr Natoli was cautioned but not by Mr Teer, about inappropriate behaviour towards female participants. 162

•  he met with Mr Natoli after he became aware of the 6 July 2017 incident (prior to 12 July 2017) and spoke to him about the Mr Collins incident and what took place outside between Mr Natoli, Mr Collins and participant W. 163

•  on 10 July 2017, he and Mr Murphy went for a walk with Mr Natoli and had a discussion with him about what had occurred in the workplace. It was recalled that the allegations and the bullying and the statements they had received from other staff were put to Mr Natoli. Mr Teer explained that Mr Natoli was told that there was some bullying and harassment of a client; that there was potential violence of another staff member and also a sexual harassment process. 164

•  Mr Natoli was also asked if he had grabbed Mr Collins by the shirt and pushed him last week. It was recalled that Mr Natoli had denied doing that. 165

Participant J

[81] It was participant J’s written evidence 166, which was not sought to be cross-examined by the Applicant, that:

•  when she arrived at Envision on 6 July 2017, she saw Mr Natoli looking angry with Mr Collins standing between Mr Natoli and participant W, out the front of the building. 167

•  she got out of the car and, when she got close to participant W, participant W had reached out to her. It was recalled that participant W was crying and looked scared and was shaking slightly. 168

•  participant W asked her if she could get her bag for her from inside because she wanted to go home and did not want to go back into the building. 169

•  when she returned and gave participant W her bag, participant W was explaining to her mum that she had used some plates to put paint on and that Mr Natoli had yelled at her and called her a dog. 170

•  participant W had also told her that, another time, Mr Natoli had called her a witch and had gestured at her rudely with two fingers. 171

•  participant W had then asked her to collect a painting from inside so that she could finish it at home. 172

•  she remembered walking past Mr Collins and Mr Natoli and she heard Mr Collins telling Mr Natoli to “pull his head in”. 173

(b) Submissions

Applicant

[82] It was submitted that Mr Collins’ oral evidence regarding this incident was different to his witness statement. Mr Dircks contended that Ms Johnston’s evidence confirmed aspects of the difference. Mr Collins’ oral evidence was said to have been vague or inexact but that there was no suggestion by any of the witnesses that Mr Natoli used similar serious language to that used by Mr Collins. 174

[83] With respect to the allegation that Mr Natoli had pushed Mr Collins and pushed his finger into Mr Collins’ chest twice, it was stated that Ms Johnston’s evidence did not support this contention. Mr Dircks submitted that this was a false allegation unsupported, on the balance of probabilities, on the evidence. 175

[84] In terms of the allegation that Mr Natoli had challenged Mr Collins to go outside, it was stated that Mr Collins could not recall Mr Natoli having used the word “fight”. This was said to have been confirmed by Ms Johnston’s evidence. Mr Dircks argued that these allegations (pushing Mr Collins twice in the chest and inviting him to go outside) were significantly different to Allegation 3 and that Allegation 3 was false. 176 It was contended that the Respondent’s interpretation of these words was incorrect. In the alternative, the Applicant argued that it was not a valid reason for dismissal.177

[85] Further, the Applicant argued that the Respondent could not decide that Mr Natoli’s conduct on 6 July 2017 only warranted a warning and then decide, 15 days later, that it was a valid reason for dismissal. 178

[86] Finally, Mr Dircks submitted that the Respondent had not provided sufficient evidence to establish this allegation on the balance of probabilities. In the alternative, it was contended that “the punishment did not fit the crime” and that the dismissal was a disproportionate response. This was said to be particularly so when Mr Collins was given a warning in relation to the same incident. 179

Respondent

[87] Further, the Respondent argued that it was unlikely Mr Natoli did not know the meaning of the two finger gesture, despite his evidence being that he did not know. As Mr Natoli had admitted that he used other vulgar language, it was contended that Mr Natoli was well aware of its meaning. 180

(c) Considerations and conclusions

[88] This allegation concerned an incident that occurred on 6 July 2017 which started when Mr Natoli saw participant W out at the front of the building, with Mr Collins taking photos of a couple of participant W’s paintings. Mr Natoli went outside to speak to participant W about painting in the sewing room after being advised by Mr Collins that he had not spoken to participant W about it.

[89] Mr Natoli then approached participant W and told her that it was inappropriate for her to be painting in the sewing room and using the plates and dishes and making a mess. It was also Mr Natoli’s evidence that participant W had lost her temper and poked her phone in his face and called him an idiot. Mr Natoli indicated that he had raised his voice at participant W after she had called him an idiot. Mr Collins’ evidence was that Mr Natoli was leaning forward and pointing aggressively at the participant whilst ranting loudly about cleaning up the painting supplies.

[90] It was common ground that Mr Collins had intervened at this point and quite an angry and loud argument ensued between Mr Natoli and Mr Collins. It was undisputed that they were both yelling and swearing at each other. Ms Johnston gave evidence that she stepped in and demanded that they both go into the office.

[91] Mr Natoli’s evidence was that, when Mr Collins had intervened and told him to leave participant W alone, Mr Collins had pushed him/put his arm across Mr Natoli’s chest. This was denied by Mr Collins.

[92] On the other hand, it was contended by Mr Collins that, when they were both inside, Mr Natoli had pushed his finger into his chest twice. Mr Natoli denied that he had done that. Ms Johnston’s evidence does not make any reference to Mr Natoli pushing Mr Collins in the chest.

[93] It was also Mr Collins’ evidence that Mr Natoli had asked him aggressively if he wanted to go outside and fight. Mr Natoli said that he did not say that to Mr Collins. Ms Johnston’s evidence corroborated Mr Collins’ version of events in that Mr Natoli had asked Mr Collins if he wanted to go out.

[94] Ms Johnston also gave evidence which confirmed Mr Collins’ contention that, prior to asking him if he wanted to go outside, Mr Natoli had gestured and then feigned a punch. Mr Collins’ evidence was that the gesture was Mr Natoli angrily sitting his palm with his fist whilst feinting towards him. At this point, Ms Johnston had physically stepped in between Mr Natoli and Mr Collins to separate them. Mr Collins then went outside and had a brief conversation with the other participant and her mum. Mr Natoli went out to the back of the factory to do some work on the caravan.

[95] Further, it was Mr Natoli’s evidence that, after he and Mr Collins had walked inside, he had said to Mr Collins that it was ridiculous and that they work together and he had put out his hand to shake hands. Mr Natoli contended that Mr Collins had pulled his hand away. Ms Johnston’s version of of events did not support Mr Natoli’s evidence in this regard nor had it formed part of Mr Collins’ evidence.

[96] On the basis of the evidence set out above, I find that Mr Natoli approached participant W outside and “chastised” her for painting in the sewing room, using the plates and dishes for her painting and making a mess on the benches. On the balance of probabilities, it is likely that Mr Natoli was talking loudly at participant W in a physically intimidating way about cleaning up the painting supplies. It is also probable that participant W had responded in kind and had called Mr Natoli an idiot.

[97] At this point in time, Mr Collins had intervened and told Mr Natoli to leave participant W alone. Mr Natoli and Mr Collins then proceeded to have a very public argument with both swearing at each other and yelling loudly. Ms Johnston stepped in and told Mr Natoli and Mr Collins to get into the office. The yelling and verbal abuse continued and, on the balance of probabilities, with Mr Natoli angrily hitting his palm with his fist whilst feinting towards Mr Collins. It is also probable that Mr Natoli then asked Mr Collins if he wanted to go out. Again, Ms Johnston intervened and yelled at them to stop it. At this point, both Mr Natoli and Mr Collins left the office. Mr Collins went out the front to talk to the participants and Mr Natoli went out the back to work on the caravan project.

Allegation 4

[98] It was alleged by Envision that Mr Natoli refused to apologise for any offense or distress that he had caused the participants. In addition, it was alleged that Mr Natoli’s follow up actions towards the participants, demonstrated a lack of empathy and lack of understanding of Envision’s work. 181

(a) Witness evidence

Mr Natoli

[99] With respect to the issue of how much Mr Natoli knew about the disadvantages of the participants, Mr Natoli gave the following evidence:

•  some of the participants in Envision’s work for the dole program have drug and alcohol issues. Mr Natoli said that they treated them with tender gloves/appropriately but he was not privy to information about participants’ mental health problems. 182

•  he explained that very occasionally, they were pre-warned that a particular participant was difficult. Mr Natoli stated that these participants had been to other programs and that drug and alcohol was generally the big issue. 183

•  they did not really know the background of participants when they came to Envision. Envision’s role was to skill up the participants and build their confidence and get them job ready. Mr Natoli explained that he was very willing to do that and that he would put his arm around them etc. and treat them with kid gloves. 184

•  there was no training provided about how to deal with people with issues. 185

•  he did not know about the intervention order against participant T until she said that there was one nor was he aware that there were domestic violence issues. 186

[100] Mr Natoli also gave evidence that he had apologised to participant T as soon as she had indicated that his two finger gesture was a rude sign and that she was offended.

(b) Submissions

Applicant

[101] It was submitted that Mr Natoli’s and Ms Johnston’s evidence was that Mr Natoli had apologised to participant T. It was further highlighted that Mr Natoli had given evidence that he had not been asked by management to make an apology for anything else. 187

Respondent

[102] It was contended that there were independent witnesses who have provided sworn evidence about the violent way in which Mr Natoli reacted after he was reminded for his inappropriate behaviour towards female participants. The Respondent argued that the same situation applied to the incident between Mr Natoli and Mr Collins when Mr Natoli behaved violently towards Mr Collins. 188

(c) Considerations and conclusions

[103] There is a lack of specificity in the material before me regarding this allegation. The first part of the allegation alleged that Mr Natoli had refused to apologise for any offense or distress that he caused the participants. If that refers to Mr Natoli not apologising to participant T after his two fingers gesture, the undisputed evidence is that Mr Natoli apologised to participant T. If the offense or distress was in relation to the other participants, it has not been particularised.

[104] With respect to the second part of the allegation, there is no detail before me of Mr Natoli’s follow-up actions which allegedly demonstrated a lack of empathy and understanding of Envision’s work. Because of the lack of detail about the two parts of this allegation, I am unable to make a positivee finding in relation to this allegation except to repeat the previous finding that Mr Natoli apologised to participant T when she told him that she was offended by his two fingers gesture.

Was there a valid reason for the dismissal?

[105] Putting all of the above findings together, it has been found that:

•  Mr Natoli asked participant T if she would like to join him for lunch on 22 June 2017.

•  on 27 June 2017, Mr Natoli offered participant T “proper coffee” which was in the mug in his hand which had not been drunk out of.

•  on the balance of probabilities, participant T asked Mr Natoli to move away as he was sitting too close.

•  another participant (participant W), had then engaged with Mr Natoli and had given him reiki therapy.

•  on the balance of probabilities, Mr Natoli made a comment to participant W “now we have two witches here”.

•  when the participants declined Mr Natoli’s offer of lollies, he gave them the two finger gesture.

•  when participant T told Mr Natoli that it was a rude gesture and she was offended, Mr Natoli apologised and said that he had not meant to offend her.

•  on the balance of probabilities, Mr Natoli stormed in and out of the sewing room after being told by Mr Collins that a complaint had been made about him.

•  on 6 July 2017, Mr Natoli had approached participant W and, on the balance of probabilities, had loudly talked at her in a physically intimidating way, about cleaning up the paint supplies.

•  Mr Collins had intervened and told Mr Natoli to leave participant W alone.

•  there was a very public argument between Mr Natoli and Mr Collins with both swearing at each other and yelling. Ms Johnston stepped in and told them both to get inside. The yelling and verbal abuse continued in the office. On the balance of probabilities, Mr Natoli angrily hit his palm with his fist whilst feinting towards Mr Collins before asking Mr Collins if he wanted to go outside.

•  Ms Johnston intervened again and yelled at them to stop it. Mr Collins went outside to see participant W and Mr Natoli went to the caravan project at the back.

[106] Taking all of the findings into account and having weighed up all of the evidence, I find that there was a valid reason for Mr Natoli’s dismissal. This is on the basis of his behaviour towards the female participants and his verbal altercation with Mr Collins.

[107] With respect to Mr Natoli’s conduct in relation to the female participants, it is my view that it was highly inappropriate for Mr Natoli to ask a female participant to join him for lunch. It was Mr Natoli’s evidence that it was standard for a group to go to the café at lunchtime. However, this was not a situation of the participant being asked as part of a group. Rather, it was a supervisor, and a male one, asking her to join him for lunch – one on one.

[108] In terms of the “proper coffee” incident, it was also inappropriate for Mr Natoli to offer the participant a “proper coffee” from the mug that he had brought into the sewing room. The offer could reasonably have been construed by the participants as Mr Natoli offering her coffee from his mug. This action, together with the lunch invitation one and the witch comment to participant W, in my view, strays outside the bounds of appropriate behaviour between a supervisor and a participant in the workplace. This is particularly so given that the participants were vulnerable and disadvantaged people and Mr Natoli was in a position of authority as a supervisor.

[109] With respect to the two finger gesture, I find it difficult to accept that Mr Natoli did not understand that it is an offensive and disrespectful gesture particularly when it is given by a supervisor to a group of vulnerable and disadvantaged female participants. Again, making that gesture is completely inappropriate and showed no regard for the boundaries in terms of the appropriate behaviour of a supervisor towards the particular clients of the organisation. It is accepted that Mr Natoli said that it was done in a joking manner and that he immediately apologised when told by participant T that she was offended. However, that does not excuse Mr Natoli’s view that it was okay to have made that gesture in the first place.

[110] It is also the verbal altercation with Mr Collins which founds the finding that there was a valid reason for Mr Natoli’s dismissal. Firstly, the argument started in public, in front of a participant. Secondly, it involved a physical threat to Mr Collins in the form of Mr Natoli hitting his fist into his palm and feinting towards Mr Collins whilst asking Mr Collins if he wanted to go out(side). It is acknowledged that Mr Collins’ language was worse than Mr Natoli’s and that they were both very angry. However, it has not been found that Mr Collins was physically threatening towards Mr Natoli. Rather, it was the other way round.

[111] It is for all of these reasons that I find that there was a valid reason for Mr Natoli’s dismissal.

Section 387(b) – notified of the reason

(a) Witness evidence

Mr Natoli

[112] Mr Natoli gave evidence that, on 10 July 2017 he, Mr Teer and Mr Murphy went for a walk with Mr Teer indicating that they wanted to have a talk (the walk/talk). It was agreed by Mr Natoli that he had been asked about particular incidents that had occurred. Mr Natoli stated that Mr Teer had told him that a complaint had been made against him and asked him whether he had grabbed Mr Collins by the shirt and pushed him last week. Mr Natoli confirmed that he had responded that that was absolute bullshit and agreed that that was a swear word. 189

[113] It was recalled by Mr Natoli that Mr Teer had then asked if he had asked a participant out. Mr Natoli responded that he had asked participant T if she wanted to join him for lunch and that her response was that she would think about it. It was stated that he had made it clear to Mr Teer and Mr Murphy that he had never asked participant T again and that he had left it at the initial question. Mr Natoli also indicated that he was not asking participant T out in a romantic way. 190

[114] Mr Teer was then said to have indicated to Mr Natoli that participant W had made an accusation that he had called her a witch. Mr Natoli recalled that he had responded that he did not call participant W a witch and that participant T had said that her ex-boyfriend had called her a witch. It was stated that he had asked Ms Johnston about this and that the first time he knew about this was when Mr Collins made that allegation. 191

[115] Mr Natoli confirmed that he denied the allegations that were put to him during the walk/talk and stated that the allegations that were put to him during the walk were not the ones that resulted in his dismissal. 192 It was explained by Mr Natoli that the allegations that, two days later, came to him via mail were different allegations to the ones that the two directors had talked to him about during the walk.193

Mr Teer

[116] It was Mr Teer’s evidence that:

•  on 10 July 2017, after the incident (between Mr Natoli and Mr Collins) on 6 July 2017, and before 12 July 2017, he and Mr Murphy and Mr Natoli went for a walk/talk. They put to Mr Natoli the allegations, the bullying and harassment of a client, the potential violence of another staff member and the subsequent statements they had received from other staff and had a discussion about what took place. He had spoken with Mr Natoli about the incident with Mr Collins and also about the complaint made on 29 June 2017 that Mr Natoli had called one of the women a witch on 27 June 2017. He had not cautioned Mr Natoli about inappropriate behaviour. 194

•  he agreed (with Mr Natoli’s statement) that he had asked Mr Natoli “did you ask a participant out?” Mr Natoli had responded that he had asked participant T out but that it was just harmless because it was a lunch date around the corner. 195

•  he had told Mr Natoli that participant W had made an accusation that he had called her a witch. Mr Natoli’s response was said to have been that Mr Natoli acknowledged that he had called one of the participants a witch but Mr Teer was not sure whether it was participant W or another participant. 196

•  they (Mr Teer and Mr Murphy) told Mr Natoli that they would be further investigating the allegations. 197

•  after the incident on 6 July 2017, he had been advised by Ms Johnston and Mr Collins about what had happened previously (prior to the 6 July 2017 incident) on 27 June 2017. Ms Johnston had spoken to the participants and they had told her about Mr Natoli coming into the room and offering participant T a coffee and that participant T had been sick and didn’t want anything to do with Mr Natoli. The participants had also told Ms Johnston that participant W was trying to deflect Mr Natoli away from participant T and and so offered to do some reiki on him. In walking out, the participants said that Mr Natoli had referred to participant W as a witch and then afterwards gave them the two fingers. 198

•  the information in Allegation 1 came from Ms Johnston and from participant T. As part of his investigation, he had rung participant T and spoken to her. 199 Mr Teer recounted that participant T had told him that, when Mr Natoli had said that he was just going out for lunch around the corner, she felt there was a greater implication in it and she did not want to have a relationship or develop a relationship. This was because she was very and anxious and had been through an abusive relationship beforehand.200

•  it was acknowledged that there was a difference between Ms Johnston’s statement of what participant T had said to Mr Natoli and what participant T had said to Mr Teer regarding Mr Natoli asking her out for lunch. 201

•  after Ms Johnston had told him about the incident on 6 July 2017, he had asked Ms Johnston to write a statement. 202

•  he spoke to the other Director, Mr Murphy, about what he had been told by Ms Johnston. He and Mr Murphy had a meeting with Mr Natoli on either 6 July 2017 or 12 July 2017. 203

•  Mr Teer explained that he then contacted the people involved in that incident and had a discussion. Mr Raines was then contacted and the investigation process commenced including getting statements from two of the participants who were involved in the incident on 29 June 2017 together with the statements of the staff. There was further discussion with the Job Active organisation. 204

•  there was a further complaint from the Job Active organisation which was assisting the affected participants around 12 July 2017. 205

•  the complaint from Job Active was that participant W had been bullied and that there had been an incident outside the workplace and that participant W did not want to come back. Job Active wanted to know what was being done. 206

•  around 12 July 2017, Mr Natoli was then suspended with pay. The complaint from Job Active was by email which Mr Teer followed up with a telephone conversation. 207

•  the organisation viewed what had taken place as very, very serious – serious misconduct and that was why they then contactedMr Raines. 208

•  he believed that the investigation had started when information had been received and a further complaint was received from the Job Active organisation. The investigation then took place from 12 July 2017 to 19 July 2017 with ongoing information between 6 July 2017 and 19 July 2017. 209

•  he thought that he had spoken to Mr Raines after the incident on 6 July 2017 but could not recall exactly when. 210

•  he and Mr Raines had a discussion at the time Mr Natoli was suspended. 211

•  he confirmed that the reference to an audit by an external workplace investigator in the dismissal letter was to Mr Raines. Mr Teer explained that Mr Raines was helping with the investigation and that he had “audited” it in the sense of checking the investigation to ensure that Envision had done the right thing. 212

•  the outcome of the investigation was set out in Allegations 1 - 4 in the letter of 19 July 2017. 213 Envision was still following up on some of the information at the time the allegation letter was sent on 19 July 2017.214

•  the findings set out in the letter of 25 July 2017 were made in conjunction with Mr Raines. Mr Teer explained that the allegations were found to be proven on the basis of the statements and information from witnesses that they were given and the fact that there was no response from Mr Natoli. It was stated that Mr Natoli just denied the allegations and didn’t offer anything further. 215

•  the evidence from the witnesses contradicted Mr Natoli’s version of events in that, the events took place as was said, but the witnesses’ view of what happened differed from that of Mr Natoli. 216

•  he explained that Mr Raines confirmed the decision that Envision had already made to dismiss Mr Natoli. This was said to have been probably around the time when the decision was made by Envision – around 24 July 2017 or 25 July 2017. 217

•  he could not recall exactly the date on which he made the decision to dismiss Mr Natoli but it was either the day before or the date of the dismissal letter (either 24 July 2017 or 25 July 2017). Mr Teer stated that the issue was talked about on 25 July 2017 with Mr Raines and the other Director, Mr Murphy. 218

•  he thought that he would have discussed the decision to dismiss Mr Natoli with Mr Raines, after he had received the text message sent by Mr Natoli at 4.31am on 25 July 2017. 219

(b) Submissions

Applicant

[117] It was acknowledged by the Applicant that reasons for dismissal were provided prior to the dismissal taking effect in the letter of 19 July 2017, which Mr Natoli received on 20 July 2017. However, it was contended that the reasons were not provided in explicit, plain and clear terms. Further, it was stated that the evidence of Mr Teer supported the Applicant’s contention that the investigation had finished prior to the allegations being put to Mr Natoli. 220

Respondent

[118] It was submitted by the Respondent that precise allegations were put to Mr Natoli by senior management and that Mr Natoli’s responses were considered in conjunction with the other interview evidence. Envision stated that the investigation was audited by an external auditor who independently substantiated the allegations. 221

[119] It was argued that, when Mr Natoli met with Mr Teer, he was provided with significant detail about the allegations. The Respondent contended that Mr Natoli had denied all of the allegations at every step through the process and that his answers then were the same as during the hearing. 222

(c) Considerations and conclusion

[120] It was undisputed that Mr Natoli was sent a letter by Envision, dated 19 July 2017, which set out the allegations. Envision followed up with a second letter, dated 25 July 2017, which set out the outcome of the investigation and advised that his dismissal was effective from that date.

[121] Prior to this correspondence, various questions regarding some of the allegations were put to Mr Natoli by Mr Teer (and Mr Murphy) during the walk/talk on 10 July 2017. Taking all of this into account, I am satisfied that Mr Natoli was notified of the reason for his dismissal.

Section 387(c) – opportunity to respond

(a) Witness evidence

Mr Natoli

[122] It was confirmed by Mr Natoli that, at the time (on 10 July 2017), he had demanded that Mr Teer and Mr Murphy give him all of the allegations and the statements of the witnesses and the names and contact details etc. This was because the allegations were totally false and he had the right to defend himself. Mr Natoli stated that he did not threaten anybody and that, when he was approached by the two directors, this was the first knowledge he had of any allegations. 223

[123] Mr Natoli was of the view that there was the potential for lies about the allegations because there was a misalignment between his statement and those of others. 224

[124] The next communication with Mr Teer was said by Mr Natoli to have been when he received the letter of allegations requesting a response by 1pm the following day. It was recalled that he had texted Mr Teer and said that that wasn’t sufficient time for him to respond. This was due to him requiring a brain scan and a very very close friend being seriously ill in intensive care in hospital. 225

[125] Mr Natoli gave evidence that he was quite sick during the night and had texted Mr Teer around 3am and said that he wouldn’t be able to attend the next morning and the reasons why. Mr Natoli stated that that was when he was dismissed. 226

[126] Mr Natoli explained that the process for participants to make complaints was to make the complaint to the Job Active agency who would then contact Envision. 227 It was stated that he was made aware, a while after his alleged behaviour, that participants W and T did not return to the program.228

Mr Teer

[127] Mr Teer gave evidence that:

•  he confirmed that he received a text message from Mr Natoli on 21 July 2017 and that he had responded that Mr Natoli could have until 5pm. Mr Teer stated that he had not made the decision to dismiss Mr Natoli at that point in time. 229

•  he confirmed that he had received a text from Mr Natoli on Sunday 23 July 2017 saying that someone was in hospital and that he could not come in until Tuesday at 9am. Mr Teer said that he had responded to this text and said to Mr Natoli “9am Tuesday at Seaford”. 230

•  he confirmed that he had received a text message sent at 4:31am on 25 July 2017 stating that he (Mr Natoli) was feeling quite unwell and that he would come in the following morning at 9am. 231

•  he confirmed that he had emailed Mr Natoli the dismissal letter, just before 11:48am that morning (25 July 2017). Mr Teer agreed that he had sent a text message to Mr Natoli at 11:48am on 25 July 2017 advising that he had emailed his response to him. 232

•  he did not receive a response to the allegations set out in the letter of 19 July 2017 from Mr Natoli, apart from the text messages, before the decision to dismiss him was made. Mr Teer confirmed that, in the 4:31am text on 25 July 2017, Mr Natoli was indicating that he was unwell and was requesting that it was moved to the next day. 233

•  he confirmed that Envision went ahead and dismissed Mr Natoli despite being aware that Mr Natoli was indicating that he was unwell and was requesting that the meeting be moved to the next day. 234

•  Mr Natoli had the opportunity to respond to the allegations in the 19 July 2017 letter prior to his dismissal. Mr Teer recounted that Mr Natoli (and Mr Collins) were both sent an email on 9 July 2017, asking him to give his version of the events on 9 July 2017. It was stated that Mr Natoli did not provide a statement but verbal denials. This was said to have occurred even before the investigation took place. Mr Teer recalled that when he had the initial discussion with Mr Natoli, he had asked him to respond. 235

•  Mr Natoli had the opportunity to respond after he received the letter of allegations dated 19 July 2017. 236

•  the reason Mr Natoli was not given until the next morning to respond to the allegations was because Envision did not receive a medical certificate. 237

•  Mr Natoli had not supplied a response during the whole time (except for a verbal response) and, on the day (25 July 2017), after receiving the text message from Mr Natoli saying he was sick, as no response had been received to the letter of allegations, Envision made a determination then. Mr Teer explained that the process could have dragged on for ever and a day and that he and Mr Murphy and Mr Raines had all the information and had to make a decision. 238

(b) Submissions

Applicant

[128] It was submitted that there was no evidence that Mr Natoli was given an opportunity to respond to the specific allegations relied upon for his dismissal. This is because the Respondent dismissed Mr Natoli after he had requested that the meeting to discuss the allegations be rescheduled due to medical and compassionate issues. Therefore, it was argued that Mr Natoli was not provided a genuine opportunity to respond to the allegations relied upon for his dismissal, prior to the decision to terminate his employment. 239

Respondent

[129] The Respondent contended that Mr Natoli was asked to provide any further information that he thought relevant to his initial responses but he did not do so. This was despite having been given numerous deadlines. It was stated that Mr Natoli had been stood down on full pay at the time of this request and that Mr Natoli had been interviewed about the allegations prior to being stood down. 240

[130] It was alleged by the Respondent that Mr Natoli did not want the opportunity to respond unless he had access to the other witness statements. It was contended that Mr Natoli had already approached one witness threatening to take him outside and harm him. 241

[131] The Respondent was said to have been unaware of any medical condition or illness at the time the decision was made to dismiss Mr Natoli. It was stated by the Respondent that meetings were rescheduled several times due to a range of claimed personal medical emergencies. However, it was stated that no medical evidence was provided by Mr Natoli despite Mr Natoli’s knowledge of what the company’s policy required. As well, the Respondent stated that neither had the Commission been provided with any medical evidence. 242

[132] Further, Mr Natoli was said to have been provided with details of the allegations including who was involved. The Respondent argued that Mr Natoli had been provided with sufficient information so that he was able to respond to each allegation during the investigation interviews. 243 It was contended that, given the dismissal was for serious misconduct, under the circumstances, Mr Natoli was given a reasonable degree of procedural fairness whilst also protecting others in the workplace.244

(c) Considerations and conclusion

[133] Section 387 of the Act is concerned with whether an employee has been given an opportunity to respond to the reason for their dismissal. It is useful in this matter, to set out the relevant events. This is not an easy task as the evidence from Envision on this aspect was somewhat jumbled. On the basis of the material before me, the following is the best timeline of events that it has been possible to discern:

•  an email was sent to Mr Natoli (and Mr Collins) on 9 July 2017 regarding the altercation between them on 6 July 2017. Mr Natoli was asked for his version of events. Mr Natoli did not provide a written statement but verbally responded and denied the allegations. It is noted that a copy of the email was not provided by the Respondent nor was it included in Mr Teer’s witness statement.

•  on 10 July 2017, Mr Natoli was invited to a walk/talk meeting with Mr Teer and Mt Murphy. It is common ground that Mr Teer asked Mr Natoli if he had asked a participant (participant T) out; told Mr Natoli that participant W had made an accusation that Mr Natoli had called her a witch and asked whether he had grabbed Mr Collins by the shirt and pushed him last week.

•  during the walk/talk Mr Natoli was advised that there would be a further investigation.

•  later that day Mr Natoli (and Mr Collins) received an email regarding the incident. Mr Natoli’s account was that the email advised that arguing in front of participants was not to occur again and that if it did, disciplinary action may be taken which may include termination. A copy of this email seems not to have been provided to the Commission.

•  Mr Teer’s evidence included a reference to Mr Natoli “already [having] a formal warning going back” and said that he and Mr Murphy had made reference to it during the walk/talk on 10 July 2017.

•  there was an investigation conducted by both Mr Teer and Mr Raines between about 12 July 2017 and 19 July 2017.

•  Mr Natoli was stood down on full pay on 12 July 2017 during the investigation.

•  by letter dated 19 July 2017, Mr Natoli was advised of four allegations. It was Mr Natoli’s evidence that he received the letter on 20 July 2017.

•  the letter stated that, following receipt of Mr Natoli’s response by 1pm on Friday 21 July 2017, Envision would meet with him again at 4pm the same day. Mr Natoli was invited to bring a support person.

•  on the morning of Friday 21 July 2017, Mr Natoli sent Mr Teer a text saying that, as he had only received the allegations the previous afternoon, he would be unable to respond in the limited time.

•  Mr Teer replied by text at 12.16pm on 21 July 2017, that Mr Natoli could have until 5pm on 21 July 2017 to forward his written response. The text also said that this was more than 24 hours which Envision had been advised was a fair time. The text stated that the meeting would be at 9am on Monday 24 July 2017.

•  on Sunday 23 July 2017, at 1pm, Mr Natoli texted Mr Teer and Mr Murphy advising that he had a close family friend admitted to hospital on Friday (21 July 2017) who had been moved into intensive care that day (Sunday 23 July 2017). Mr Natoli advised that he would therefore be unable to attend tomorrow (Monday 24 July 2017). However, he would come in at 9am on Tuesday 25 July 2017.

•  at 8.29am on Monday 24 July 2017, Mr Teer texted Mr Natoli and said 9am Tuesday at Seaford.

•  at 4.31am on Tuesday 25 July 2017, Mr Natoli texted Mr Teer saying that he was feeling quite sick and having a bad night and that he would come in at 9am the next morning (Wednesday 26 July 2017).

•  at 11.48am on Tuesday 25 July 2017, Mr Teer responded by text advising that he had emailed a response to Mr Natoli’s home and work email.

•  the response was the letter dated 25 July 2017 advising Mr Natoli of the outcome of Mr Teer’s investigation which had been audited by an external investigator.

•  the outcome was that the four allegations had been found to be proven and that his employment was terminated effective 25 July 2017. It was argued by the Respondent that the precise allegations were put to Mr Natoli on 10 July 2017 (during the walk/talk) prior to Mr Natoli being stood down. Mr Natoli was said to have responded to the allegations during the walk/talk. The Respondent contended that Mr Natoli’s responses on 10 July 2017 were taken into account.

•  further, Envision submitted that Mr Natoli was invited to respond to the letter of allegations but failed to do so. Finally, the Respondent contended that, under the circumstances, Mr Natoli was provided with reasonable procedural fairness whilst protecting others in the workplace.

•  on the other hand, the Applicant submitted that Mr Natoli was not given an opportunity to respond to the specific allegations which were relied on for his dismissal. This was said to be because Mr Natoli was dismissed prior to the meeting when he would have had the opportunity to respond to the allegations letter dated 19 July 2017. This was highlighted as having been in the context of Mr Natoli requesting a rescheduling of the meeting on medical and compassionate grounds.

[134] Having considered all of the material before me, I find as follows:

•  some of the events which formed part of the allegations were put to Mr Natoli during the walk/talk on 10 July 2017. These were in relation to asking participant T out for lunch; whether he had called participant W a witch and whether he had grabbed Mr Collins by the shirt during their altercation on 6 July 2017.

•  the altercation between Mr Natoli and Mr Collins also seems to have been dealt with separately via an email to Mr Natoli from Mr Teer asking for Mr Natoli’s version of events. The parties appear to have a different view of the outcome of this. Mr Teer appears to have held the view that Mr Natoli was given a formal warning in relation to this incident whilst Mr Natoli has the opposite understanding.

•  as neither of these emails are before the Commission, it is not possible to make a finding about the disciplinary outcome. However, it is probable that there was email correspondence between Envision and Mr Natoli asking Mr Natoli for his version of events and then an email from Mr Teer regarding the outcome.

•  the letter of allegations, dated 19 July 2017, set a timetable for Mr Natoli to respond in writing and then a date for a meeting to discuss Mr Natoli’s response.

•  in the letter, the meeting was scheduled for 4pm on Friday, 21 July 2017 following receipt of Mr Natoli’s written response by 1pm the same day.

•  the deadline for Mr Natoli’s response was moved from 1pm to 5pm on Friday, 21 July 2017 at Mr Natoli’s request with the meeting rescheduled to 9am on Monday 24 July 2017.

•  at the request again of Mr Natoli, on compassionate grounds, the meeting was rescheduled to 9am on Tuesday, 25 July 2017.

•  at 4:31am on Tuesday, 25 July 2017, Mr Natoli texted Mr Teer and advised that he was quite sick and that he would come in the next morning (Wednesday, 26 July 2017) at 9am.

•  Mr Teer responded later that morning advising that a response had been emailed to Mr Natoli’s work and home email addresses. The response was the letter of dismissal.

[135] As indicated during the hearing, the Commission had concerns from a procedural fairness perspective about, in effect, the Respondent dismissing Mr Natoli before the meeting where Mr Natoli could formally respond to the allegations letter had taken place. 245 It is acknowledged that the meeting had already been rescheduled by Envision twice at the request of Mr Natoli. The Respondent appears to have taken the view, when the further request was received, that the process could have dragged on for ever. That had then prompted the decision to dismiss Mr Natoli. It is noted that the Respondent had not requested medical proof that Mr Natoli was unwell before deciding to dismiss him.

[136] On the face of it, therefore, Mr Natoli was dismissed before he had an opportunity to respond to the letter of allegations. A decision was made by the Respondent on the basis of the material before it. The Commission has already found that some of the allegations had been put to Mr Natoli and that he had responded verbally at the time. These allegations were in relation to the altercation with Mr Collins; asking participant T out for lunch and the allegation that he had called participant W a witch. These conversations had occurred prior to the letter of allegations dated 19 July 2017.

[137] It would therefore seem that Mr Natoli was not given an opportunity to respond to the “proper coffee” and move away allegation nor the allegation that he had stormed in and out of the sewing room and made the two finger gesture. From a procedural fairness perspective, it is a serious failure that Mr Natoli was not given an opportunity to respond to the “proper coffee” allegation and the two finger gesture allegation.

[138] In addition, the Commission has concerns about the description of the allegations as set out in the letter of 19 July 2017. The allegations are not all clear statements of alleged facts (e.g. Allegation 2) and some lack specificity in terms of dates (e.g. Allegation 3). Also, the headings for each of the allegations (e.g. Allegation 2: Bullying) seem to suggest a conclusion when the purpose of setting out allegations is to get a response to alleged factual occurrences. A conclusion that the substantiated facts amounted to bullying occurs after a response has been received from the employee and such a characterisation forms part of the conclusion reached by the employer once a decision about the facts has been made. That this language was used when setting out the allegations could lead to a conclusion that the process was biased against Mr Natoli.

[139] Taking all of this into account, the Commission finds that there were serious flaws in the disciplinary process used by the employer. These included Mr Natoli not being given an opportunity to respond to at least two allegations which were later relied on for the dismissal. This is on the basis that these issues were not discussed with Mr Natoli prior to him being stood down and as a result of the decision by the employer not to agree to reschedule the formal response meeting for a third time.

[140] Also, the allegations were not set out factually and dispassionately in the allegation letter and some were not clear and lacked specificity. Implicit in this finding is that, on balance, Mr Natoli was given an opportunity to respond to the other allegations. These were in relation to asking participant T out for lunch; the allegation that he had called participant W a witch and the altercation between Mr Natoli and Mr Collins. This occurred prior to the allegations letter of 19 July 2017.

Section 387 (d) – opportunity to have a support person

[141] It was submitted on behalf of Mr Natoli that there was no refusal by the employer to allow Mr Natoli to have a support person present in the dismissal meeting. This was because there was no dismissal meeting. It was contended that the lack of an opportunity to have a support person present was, in itself, a denial of procedural fairness. 246

[142] On the evidence before me there was no request by Mr Natoli to have a support person and therefore, there could not have been a refusal. It is noted that Mr Natoli was invited to bring a support person to the meeting to hear his responses to the allegations.

Section 387 (e) - unsatisfactory performance?

[143] This subsection is not relevant in this matter because Mr Natoli’s dismissal did not relate to unsatisfactory performance.

Sections 387(f) and (g) – size of undertaking and absence of dedicated human resources

Applicant

[144] The Applicant submitted that Envision is not a small business and has been represented by Mr Raines since prior to the dismissal. It was stated that Mr Raines had indicated that he has experience in these matters. Therefore, the Applicant contended that there could not be a valid claim that there was not dedicated expertise relied upon in the dismissal. 247

[145] It was argued that employees who are about to lose their employment are entitled to a fair go regardless of the size of the employer’s undertaking with the absence of specialist human resources. It was stated that the manner in which Mr Natoli’s dismissal was affected was harsh and that Mr Natoli was denied a fair go despite the apparent involvement of human resources/workplace law expertise. 248

Respondent

[146] It was submitted on behalf of Envision that the organisation does not have a dedicated HR resource. This was the reason that Envision sought assistance from Mr Raines. 249

[147] It is clear from the evidence that Envision does not have dedicated human resources expertise. However, it is apparent that, once Mr Teer became aware of the incidents in the workplace involving Mr Natoli, the assistance of Mr Raines was sought. Mr Raines assisted with the investigation and assisted Envision with the letter of allegations and the dismissal letter. It also seems that Mr Raines was consulted about Envision’s decision to dismiss Mr Natoli.

[148] The evidence also indicated that Envision is a multisite organisation and so could not be described as a small business. Therefore, I find that the size of Envision would likely not impact on the disciplinary procedures. As well, although Envision did not have dedicated human resources expertise, Envision was assisted from early on in the process by an experience workplace consultant.

Section 387 (h) – any other matters considered relevant

[149] On behalf of the Applicant, it was submitted that Mr Natoli has not been provided with the fair go on the basis of the Respondent’s and investigator’s attitude towards Mr Natoli. The Applicant contended that the Respondent, or at least the investigator, knew the gravity and seriousness of the allegations being relied on for the dismissal. This was said to have significantly increased the harshness of dismissal for any of these allegations when they were not supported with anything more than indirect inferences, inexact proofs and indefinite testimony. 250

[150] Further, it was argued that the seriousness of the allegations and the impact of the dismissal on Mr Natoli’s personal and economic circumstances cannot be downplayed. This was particularly so given Mr Natoli’s age and his inability to secure ongoing employment. 251

[151] In the event that the Commission found, on balance, that there was some unacceptable behaviour on the part of Mr Natoli, it was submitted that a lesser disciplinary outcome would have been the appropriate response. It was argued that the penalty (Mr Natoli’s dismissal) was disproportionate to the misconduct. 252

[152] In addition, the Applicant argued that the Commission should take into account disparity in the treatment of staff (Mr Natoli and Mr Collins) in this matter. 253

Was the dismissal harsh, unjust or unreasonable?

[153] In all of the circumstances of this matter and, having taken account of, and balanced, the matters set out in s.387 of the Act, I determine that, on fine balance, Mr Natoli’s dismissal was not harsh, unjust or unreasonable. It has been found that there was a valid reason for the dismissal based on Mr Natoli’s conduct in the workplace. Mr Natoli exhibited highly inappropriate behaviour towards vulnerable and disadvantaged female participants together with the verbal altercation with Mr Collins. The altercation included Mr Natoli physically threatening Mr Collins by punching his fist into his palm and feinting towards Mr Collins whilst asking him if he wanted to go out(side).

[154] On the other hand, there were procedural flaws in the process followed by the employer that resulted in Mr Natoli’s dismissal. These included Mr Natoli not having been given the opportunity to respond at any time to at least two of the alleged incidents and that some of the allegations, as set out in the letter of 19 July 2017, were unclear and lacking in detail. As well, the allegations were also described in emotional terms and not as objective alleged facts. In addition, Mr Natoli’s age and personal circumstances have been considered.

[155] Therefore, it follows that, pursuant to s.385 of the Act, Mr Natoli was not unfairly dismissed. Accordingly, Mr Natoli’s application is dismissed. An order to this effect will be issued separately.

Appearances:

N Dircks for the Applicant

G Raines for the Respondent

Hearing details:

2017.

Melbourne (determinative conference):

November 23.

2018.

Melbourne:

February 8, 9.

Final written submissions:

Applicant, 1 March 2018

Respondent, 16 March 2018

Applicant, 23 March 2018

Printed by authority of the Commonwealth Government Printer

<PR608818>

 1   Exhibit A2 at attachment

 2   Ibid

 3   Transcript PN 618

 4   Exhibit A2 at attachment

 5   Ibid

 6   Transcript PN 3348, 3351 and Exhibit A2 at paragraph 8

 7   Exhibit A2 at paragraph 9

 8   Exhibit A2 at paragraph 10

 9   Transcript PN 1939 - 1940

 10   Transcript PN 1954 and 1962 - 1963

 11   Transcript PN 1942

 12   Transcript PN 3348 - 3365

 13   Transcript PN 1934 - 1938

 14   Transcript PN 1966 - 1968

 15   Transcript PN 1969

 16   Transcript PN 1961

 17   Exhibit A2 at paragraphs 14 - 15

 18   Exhibit R2

 19   Transcript PN 2237 and Exhibit R2 at paragraph 2

 20   Transcript PN 2924 - 2927

 21   Transcript PN 2931

 22   Transcript PN 2690 - 2691, 2947 and 2961

 23   Transcript PN 2761, 2931 and 2939

 24   Transcript PN 2664 - 2668

 25   Transcript PN 2692 - 2695

 26   Transcript PN 2696

 27   Transcript PN 3080 - 3083

 28   Exhibit R4

 29   Exhibit R4 at page 1

 30   Ibid

 31   Ibid

 32   Closing Submissions on behalf of the Applicant, dated 1 March 2018, at paragraphs 5 and 7

 33   Closing Submissions on behalf of the Applicant, dated 1 March 2018, at paragraphs 5 and 7

 34   Ibid at paragraph 13

 35   Ibid at paragraph 14

 36   Ibid at paragraphs 15 - 16

 37   Ibid at paragraph 16 - 17

 38   Ibid at paragraphs 18 - 20

 39   Ibid at paragraph 21

 40   Ibid at paragraph 22

 41   Closing Submissions for the Respondent, dated 16 March 2018, at pages 1, 3 and 6

 42   Closing Submissions for the Respondent, dated 16 March 2018, at pages 1 - 3

 43   Ibid at pages 1 - 2

 44   Ibid at page 2

 45   Exhibit A2 at attachment

 46   Exhibit A2 at attachment

 47   Exhibit A2 at attachment

 48   Transcript PN 1080, 1083 - 1084, 1993, 3367, 1530 and 1572

 49   Transcript PN 1994

 50   Transcript PN 1514 and Exhibit A2 at paragraph 17

 51   Exhibit A2 at paragraph 18

 52   Ibid at paragraph 16

 53   Ibid at paragraphs 19 - 25

 54   Transcript PN 955 - 957, 1082 and Exhibit A2 at paragraphs 23 and 26 - 29

 55   Transcript PN 957, 963, 1011, 1048-1050, 1847 - 1850, 1990 and Exhibit A2 at paragraphs 28 - 30

 56   Transcript PN 1013, 1026 - 1041 and 1050

 57   Transcript PN 948 - 954 and 966 - 983

 58   Transcript PN 197 - 1929

 59   Transcript PN 3367

 60   Transcript PN 1851

 61   Transcript PN 1867 - 1877

 62   Transcript PN 997 - 1000 and Exhibit A2 at paragraph 18

 63   Exhibit A2 at paragraph 32 - 35

 64   Exhibit A2 at paragraph 36

 65   Transcript PN 1051 - 1054 and Exhibit A2 at paragraphs 37 - 38

 66   Transcript PN 1055 - 1058

 67   Transcript PN 2519 - 2530

 68   Transcript PN 2531, 2650, 2667 and 2694

 69   Transcript PN 2744 and 2756 - 2759

 70   Transcript PN 2762

 71   Transcript PN 2531, 2650, 2667 and 2694

 72   Transcript PN 2743

 73   Transcript PN 2531, 2650, 2667 and 2694

 74   Exhibit R3

 75   Transcript PN 3488 and 3490 - 3491

 76   Exhibit R3

 77   Transcript PN 3498 - 3502 and Exhibit R3

 78   Transcript PN 3498 - 3502 and Exhibit R3

 79   Transcript PN 3503

 80   Transcript PN 3534 - 3541

 81   Transcript PN 3542 - 3545

 82   Ibid

 83   Exhibit R4

 84   Ibid

 85   Ibid

 86   Ibid

 87   Closing Submissions on behalf of the Applicant, dated 1 March 2018, at paragraphs 23 - 27

 88   Ibid at paragraph 34

 89   Ibid at paragraph 28

 90   Ibid at paragraphs 29 - 32

 91   Ibid at paragraph 35

 92   Ibid at paragraphs 25 and 36

 93   Ibid at paragraphs 85 - 89

 94   Closing Submissions on behalf of the Applicant, dated 1 March 2018, at page 2

 95   Exhibit R4

 96   Exhibit R4

 97   Exhibit A2 at attachment

 98   Exhibit R1

 99   Transcript PN 912

 100   Transcript PN 912

 101   Transcript PN 912 and Exhibit A2 at paragraph 39

 102   Exhibit A2 at paragraph 41 - 42

 103   Transcript PN 912 and Exhibit A2 at paragraphs 43 - 45

 104   Transcript PN 912, 914, 1913, 1919 - 1920 and Exhibit A2 at paragraph 46

 105   Transcript PN 1914 -1915

 106   Exhibit A2 at paragraphs 47 - 48

 107   Transcript PN 912 and 1913

 108   Transcript PN 1917 and Exhibit A2 at paragraph 49

 109   Transcript PN 913

 110   Transcript PN 1914 - 1915, 1922 and Exhibit A2 at paragraph 49

 111   Exhibit A2 at paragraphs 50 - 51, 56 and Transcript PN 1814 -1816 and 1825

 112   Transcript PN 1812

 113   Transcript PN 912, 1813 and Exhibit A2 at paragraph 52 - 53

 114   Transcript PN 1813

 115   Transcript PN 1814-1816, 1825 and Exhibit A2 at paragraph 56

 116   Transcript PN 917 and 1821 - 1822

 117   Transcript PN 919 and 1819 - 1820

 118   Transcript PN 922

 119   Transcript PN 1785-1787

 120   Transcript PN 1810 - 1811

 121   Transcript PN 1836

 122   Transcript PN 2083 - 2085

 123   Transcript PN 2085 and 2107 - 2111

 124   Transcript PN 97 - 99 and 938

 125   Transcript PN 1253 - 1256 and Exhibit A2 at paragraph 4

 126   Transcript PN 3546 and Exhibit R3

 127   Exhibit R3

 128   Ibid

 129   Transcript PN 3476 - 3486

 130   Transcript PN 3560 and Exhibit R3

 131   Transcript PN 3561 and Exhibit R3

 132   Transcript PN 3561 - 3563 and Exhibit R3

 133   Transcript PN 3564

 134   Transcript PN 3565 - 3569 and Exhibit R3

 135   Transcript PN 3570 - 3604 and Exhibit R3

 136   Transcript PN 3565 and 3613

 137   Transcript PN 3619

 138   Transcript PN 3620 - 3621 and Exhibit R3

 139   Transcript PN 3622 - 3626 and Exhibit R3

 140   Transcript PN 3627 - 3633

 141   Transcript PN 3634 - 3636 and Exhibit R3

 142   Transcript PN 3637 - 3638

 143   Exhibit R3

 144   Exhibit R3

 145   Transcript PN 3639 - 3656 and Exhibit R3

 146   Exhibit R3

 147   Transcript PN 3658 - 3664

 148   Transcript PN 3754 - 3756 and Exhibit R4

 149   Exhibit R4

 150   Transcript PN 3758 and Exhibit R4

 151   Transcript PN 3759 and Exhibit R4

 152   Transcript PN 3761 - 3776 and 3815 and Exhibit R4

 153   Transcript PN 3777 - 3780 and Exhibit R4

 154   Transcript PN 3797 - 3798

 155   Transcript PN 3782 - 3784 and Exhibit R4

 156   Transcript PN 3785 - 3789 and Exhibit R4

 157   Transcript PN 3807

 158   Transcript PN 3790 - 3792

 159   Exhibit R4

 160   Ibid

 161   Ibid

 162   Transcript PN 2442 - 2450, 2488 - 2516, 2547, 2595 - 2605, 2612 and 2615 - 2618

 163   Ibid

 164   Ibid

 165   Transcript PN 3087 - 3088

 166   Exhibit R1

 167   Ibid

 168   Ibid

 169   Ibid

 170   Ibid

 171   Exhibit R1

 172   Ibid

 173   Ibid

 174   Closing Submissions on behalf of the Applicant, dated 1 March 2018, at paragraphs 40 - 45

 175   Ibid at paragraphs 48 and 50

 176   Ibid at paragraphs 51 - 58

 177   Ibid at paragraph 61

 178   Ibid, at paragraphs 63 - 71

 179   Closing Submissions on behalf of the Applicant, dated 1 March 2018, at paragraphs 72 - 79

 180   Ibid at page 2

 181   Exhibit A2 at attachment

 182   Transcript PN 1479 - 1493, 1502 - 1505, 1513, 1886 and 1888

 183   Transcript PN 1494 - 1497

 184   Transcript PN 1844

 185   Transcript PN 1843

 186   Transcript PN 511 - 1516 and Exhibit A2 at paragraph 17

 187   Exhibit A2 at paragraphs 80 - 83

 188   Ibid at page 4

 189   Transcript PN 1091-1097, 1111 - 1112, 1115, 1296, 1303, 1305 - 1308, 1621 - 1624, 1628 - 1633 and Exhibit A2 at paragraphs 58 - 62

 190   Exhibit A2 at paragraphs 63 - 65, Transcript PN 1297 and 1615 - 1618

 191   Exhibit A2 at paragraphs 66 - 67, Transcript PN 1298, 1304 and 1611 -1612

 192   Transcript PN 1118 - 1119 and 1163 - 1164

 193   Transcript PN 1189 - 1190, 1194 and 1208

 194   Transcript PN 2442 - 2450, 2488 - 2516, 2547, 2595 - 2605, 2612, 2615 - 2618 and 3065 - 3066

 195   Transcript PN 3071 - 3083

 196   Transcript PN 3085 - 3086

 197   Transcript PN 3067

 198   Transcript PN 2519 - 2530

 199   Transcript PN 2531, 2650, 2667 and 2694

 200   Transcript PN 2930 - 2931, 2947 and 2961

 201   Transcript PN 2690 - 2696

 202   Transcript PN 2534 - 2535 and 2552

 203   Transcript PN 2533 and 2579

 204   Transcript PN 2552

 205   Exhibit R2 at paragraph 5 and Transcript PN 2300

 206   Transcript PN 2262 - 2267 and Exhibit R2 at paragraph 3

 207   Transcript PN 2300, 2308, 2451 - 2453 and Exhibit R2 at paragraph 5

 208   Transcript PN 2552, 2903 and Exhibit R2 at paragraph 6

 209   Transcript PN 2670 and 2672

 210   Transcript PN 2765 - 2771

 211   Transcript PN 2922

 212   Transcript PN 2555 - 2557, 2780 and 2788

 213   Transcript PN 2554

 214   Transcript PN 2675 - 2679

 215   Transcript PN 2556 - 2561

 216   Transcript PN 2563

 217   Transcript PN 2788 and 2810 - 2811

 218   Transcript PN 2801 - 2802 and 2889

 219   Transcript PN 2831

 220   Closing Submissions on behalf of the Applicant, dated 1 March 2018, at paragraphs 91 - 95 and Exhibit A1 at paragraphs 90 - 95

 221   Closing Submissions for the Respondent, dated 16 March 2018, at pages 2 and 3

 222   Closing Submissions for the Respondent, dated 16 March 2018, at page 5

 223   Transcript PN 1121 - 1125 and 1320 - 1321

 224   Transcript PN 1227 - 1250

 225   Transcript PN 1340 and 1347 - 1350

 226   Transcript PN 1362

 227   Transcript PN 1887

 228   Transcript PN 1894 - 1898

 229   Transcript PN 2813 - 2819

 230   Transcript PN 2826 - 2830

 231   Transcript PN 2826 - 2830 and 2856 - 2861

 232   Transcript PN 2832 - 2838

 233   Transcript PN 2854 - 2855 and 2856 - 2861

 234   Transcript PN 2862 - 2863

 235   Transcript PN 2875 - 2879

 236   Transcript PN 2881 - 2884

 237   Transcript PN 2891

 238   Transcript PN 2909 - 2913

 239   Closing Submissions on behalf of the Applicant, dated 1 March 2018, at paragraphs 99 - 101 and Exhibit A1 at paragraphs 96 - 101

 240   Closing Submissions on behalf of the Respondent, dated 16 March 2018, at pages 3, 4 and 5

 241   Ibid at page 5

 242   Closing Submissions on behalf of the Respondent, dated 16 March 2018, at page 5

 243   Ibid

 244   Ibid

 245   Transcript PN 2910

 246   Closing Submissions on behalf of the Applicant, dated 1 March 2018, at paragraphs 102 - 104 and Exhibit A1 at paragraphs 45 - 47

 247   Closing Submissions on behalf of the Applicant, dated 1 March 2018, at paragraphs 107 - 110

 248   Closing Submissions on behalf of the Applicant, dated 1 March 2018, at paragraphs 107 - 112 and Exhibit A1 at paragraphs 50 - 51

 249   Closing Submissions for the Respondent, dated 16 March 2018, at page 6, Transcript PN 2409 and Exhibit R2 at paragraph 10

 250   Closing Submissions on behalf of the Applicant, dated 1 March 2018, at paragraphs 113 - 116 and Closing Response Submissions on behalf of the Applicant, dated 23 March 2018, at paragraphs 2 and 11

 251   Closing Submissions on behalf of the Applicant, dated 1 March 2018, at paragraphs 117 - 118 and Exhibit A1 at paragraphs 52 - 54

 252   Exhibit A1 at paragraphs 29 - 32

 253   Exhibit A1 at paragraphs 33 - 35