Gael Courbard v Royal South Yarra Lawn Tennis Club
[2024] FWC 2516
•16 SEPTEMBER 2024
| [2024] FWC 2516 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gael Courbard
v
Royal South Yarra Lawn Tennis Club
(U2024/3247)
| COMMISSIONER TRAN | MELBOURNE, 16 SEPTEMBER 2024 |
Application for an unfair dismissal remedy – valid reason for dismissal – application dismissed.
On 21 March 2024 Mr Gael Courbard applied to the Fair Work Commission under section 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy. Mr Courbard said that the Royal South Yarra Lawn Tennis Club had unfairly dismissed him and sought compensation for his financial losses.
The Club is a not-for-profit organisation that provides tennis coaching for people of all ages.
The Club first employed Mr Courbard in April 2020 as a senior tennis coach. His employment was on casual basis.
On 14 March 2024, the Club ended Mr Courbard’s employment because of his alleged conduct. The alleged conduct was that on Monday 19 February 2024, Mr Courbard hit a student with his racket and threatened that student in an aggressive manner. The student is referred to in this decision as DEF.
Mr Courbard denies that the conduct occurred. Also, he says that the Club did not properly or fairly investigate the matter and that it was not impartial when it made the decision to dismiss him.
I consider that Mr Courbard’s dismissal was for a valid reason and was not harsh, unjust or unreasonable. I therefore dismiss his application. My reasons follow.
Determinative Conference and Confidentiality Orders
As the parties did not agree about the facts, the Commission is required to conduct a conference or hold a hearing under section 397. I determined that it would be appropriate to conduct a determinative conference. Although a total of 9 witnesses gave evidence, neither party was represented. Also, while both parties filed submissions, statements and documents in accordance with my directions, those materials were not fulsome. I determined that it would be necessary to provide some latitude in the giving of evidence and submissions, and that both parties would require my assistance to address the statutory considerations.
The determinative conference was held in person on 19 and 20 June 2024.
Three witnesses are under the age of 18. Bearing in mind the nature of the allegations of misconduct, I directed that their evidence be given via Microsoft Teams, that a support person must be present during the giving of their evidence and that Mr Courbard could not directly cross examine the witnesses. I issued directions prior to the determinative conference requiring Mr Courbard to provide me with his cross-examination questions, and that during the determinative conference I would ask the cross-examination questions and provide Mr Courbard with an opportunity to consider further questions that may arise from any answers. I also reiterated that, despite the process in which I was asking the questions, I may nevertheless make rulings about questions, such as whether they were relevant, and the Club retained the right to object to questions.
I also ordered that the names and identities of witnesses under the age of 18 be kept confidential and witnesses would be referred to using pseudonyms: ABC, DEF, and GHI. Where it was necessary to refer to the parents of those witnesses, they would be referred to in a manner that would ensure the witnesses’ identities remained confidential.
Materials and Witnesses
The parties filed submissions, witness statements and documents, which my Chambers compiled into a Hearing Book. I accepted the entirety of the Hearing Book into evidence. During the determinative conference, the Club tendered further documents, which I also accepted into evidence.
The following people gave evidence:
· Mr Gael Courbard, the applicant.
· Three witnesses under the age of 18, who were students being coached in tennis by Mr Courbard and referred to as:
oMs ABC;
oMr DEF; and
oMr GHI
· Mr Aymeric Mara, tennis coach;
· Mr Stewart Fenton, Chief Executive Officer for the Club;
· Mr John Cameron McCurdy, Director of Coaching for the Club;
· Mr Jarrad Wright, Chief Operating Officer for the Club; and
· Mr Sanjeeva Pathinayake, tennis coach and junior convenor for the Club.
In general terms, I found all witnesses to be truthful when giving their evidence.
When may the Commission order an unfair dismissal remedy?
Section 390 of the Act provides that the Commission may order reinstatement or the payment of compensation to a person if the Commission is satisfied that the person was protected from unfair dismissal and the person was unfairly dismissed. Section 382 of the Act sets out when a person is protected from unfair dismissal. Section 385 of the Act says what unfair dismissal means.
There are only two remedies available in an unfair dismissal application. The primary remedy is reinstatement. The secondary remedy is compensation, but the Commission may only order compensation if it is satisfied that reinstatement is not appropriate and payment of compensation is appropriate in all the circumstances. The calculation of compensation is set out in section 392 and does not allow for compensation for the manner of the dismissal or any distress caused by the dismissal, nor any compensation for the ongoing effects of dismissal.
Mr Courbard sought compensation for the manner of his dismissal, damage to his reputation and the emotional toll on him caused by the dismissal. Even if I had found that the was dismissal was unfair within the meaning of the Act, I have no powers to award this form of compensation.
Mr Courbard is a person who is protected from unfair dismissal
There is no dispute that Mr Courbard is a person who has been dismissed within the meaning of section 386 of the Act. This is evident from the termination letter and the evidence of Mr Courbard, Mr Fenton and Mr McCurdy.
I am also satisfied that Mr Courbard made an application in accordance with section 394, as he applied with 21 days of the statutory time limit.
It is not in dispute that Mr Courbard is protected from unfair dismissal.
The Club employed Mr Courbard for more than 6 months, as required under section 383. While Mr Courbard was employed on a casual basis, his employment was regular and systematic and Mr Courbard had an expectation of continuing employment, as required under section 384. This is evident from the history of his employment with the Club from 2020, the employment contract of February 2023 and the evidence of Mr John McCurdy, director of coaching for the Club.
It is also not in dispute that Mr Courbard’s annual rate of earnings is less than the high-income threshold.
I am therefore satisfied that Mr Courbard is a person who is protected from unfair dismissal.
Did the Club unfairly dismiss Mr Courbard?
The Small Business Fair Dismissal Code does not apply as the Club employs more than 15 employees. The Club provided submissions that it employs 110 employees: 42 full-time employees and 68 casual employees.
I am also satisfied that this is not a case of genuine redundancy. The Club’s reason for dismissing Mr Courbard is his alleged misconduct.
The key issue in this matter is whether the dismissal was harsh, unjust or unreasonable. In considering whether a dismissal was harsh, unjust or unreasonable, I must have regard to the criteria in section 387. The full text of s 387 is appended to this decision.
Section 387(a) – was there a valid reason?
After conducting an investigation, the Club gave the following reasons for dismissing Mr Courbard in the letter of termination:
· Mr Courbard hit DEF with his racquet; and
· Mr Courbard threatened / warned DEF in an aggressive manner about his behaviour (which was DEF spitting water in Mr Courbard’s face).
It is not in dispute that the above incidents, if they happened, happened on Monday 19 February 2024 during a training session.
Events of Monday 19 February
In many respects, the evidence of Mr Courbard, Mr Mara and the 3 young witnesses agree.
On Monday evenings, Mr Courbard and Mr Mara coach a junior squad. Witnesses ABC, DEF and GHI were all members of the junior squad. Mr Courbard and Mr Mara do not coach together; rather the squad is split into 2 groups and the groups move between Mr Courbard and Mr Mara. Mr Courbard and Mr Mara coached on different courts, which were adjacent. The training session lasts for an hour and a half.
On Monday 19 February 2024 Mr Mara could see Mr Courbard’s court from where he was. But the two courts were not level. Mr Mara was about 8 metres away from Mr Courbard, and there were café-style tables and chairs between the two courts. Mr Mara says that it is usual for him and coaches generally to check and have an awareness of what the other coach is doing when coaching a split group.
It was a hot day. About halfway through the coaching session, witnesses ABC, DEF and GHI came to Mr Courbard for their part of the session. When the students entered the court, they were standing around together at the baseline of the court awaiting instructions and to have some water. ABC and DEF were closer to each other; GHI was a bit further away and Mr Courbard was standing nearby.
Mr Courbard drank some water and then he spat it out. No one says he spat it at them or in their direction. The young witnesses say that the water spitting was playful or ‘messing about’. Mr Courbard says he was not being playful, and he spat out the water because it tasted bad.
ABC then squirted some water from her water bottle, some of which got on Mr Courbard. ABC says that Mr Courbard took her water bottle from her and poured some of it on her.
DEF drank water from the bubbler and spat it out of his mouth. Mr Courbard says DEF walked up to him and spat the water in his face, then ran away from him.
I find that the water landed on Mr Courbard’s face: Mr Courbard says it landed on his face and DEF says that it may have landed on his face; ABC says she doesn’t remember where it landed and GHI says that it was directed into the air. While I consider that the witnesses gave truthful evidence, GHI was the least detailed; ABC did not wish to say anything that clearly blamed DEF or Mr Courbard. But DEF was consistent in accepting that the spat-out water landed on Mr Courbard, and likely landed on his face. In addition, all the young witnesses’ oral evidence – 13 weeks after the event – remained consistent with statements they provided to Mr Fenton on 4 March 2024 – 2 weeks after the event – and was consistent with what Mr Mara said that they told him at the next Monday junior squad coaching – one week after the event.
DEF then ran a few metres away from the group, along the baseline of the court. He ran no more than the distance of the baseline of the court away from Mr Courbard, and away from where witnesses ABC and GHI were standing.
Mr Courbard chased DEF and caught up with him. Mr Courbard directed his racquet towards DEF’s side/hip. Mr Courbard says he never intended to hit DEF, but concedes that the racquet may have touched DEF. All 3 young witnesses say that Mr Courbard hit DEF with the racquet. DEF says quite hard; ABC says hard enough that she heard a smack sound and GHI says that Mr Courbard chased DEF and he saw him swing and strike DEF with the racquet.
Mr Courbard spoke to DEF. Mr Courbard says that he was upset because he had been spat at in the face, and that he told DEF that his attitude would no longer be tolerated; that this attitude was the last one. DEF repeatedly apologised to Mr Courbard.
The young witnesses say that they had been acting playfully, but at this point realised it was serious. DEF says that Mr Courbard said to him something like,
“I don’t care about your fucking apology; your fucking apology doesn’t mean anything.”
Both ABC and GHI gave evidence that they heard Mr Courbard speak to DEF. They did not recall exact words, but the words or phrases they recalled were similar in meaning – that is, that the behaviour was not acceptable or would not be tolerated.
Mr Mara saw the chasing and the words exchanged between Mr Courbard and DEF. He did not hear the words, but was sufficiently concerned that he asked Mr Courbard what happened after the lesson was over.
The lesson then continued as normal, although the witnesses say that it was tense.
Events after 19 February 2024
DEF did not miss any days of school or any tennis lessons after the event. DEF says that his hip and side were sore; GHI says that DEF told him “a bit after” the lesson “that seriously hurt, my arse hurts.” DEF says he did not tell his parents but he did tell his older brother, who also goes to the Club.
Mr Mara spoke with the 3 young witnesses at the following week’s coaching session. In the weeks following there were rumours at the Club about what may have occurred. Mr Pathinayake heard those rumours and spoke with DEF and his father and ABC on Sunday 3 March 2024. Mr Pathinayake then emailed Mr McCurdy and Mr Wright.
Investigation and Dismissal Process
Mr Fenton, Mr McCurdy and Mr Wright met with Mr Courbard on 4 March 2024.
On 5 March 2024, the Club wrote to Mr Courbard, outlining the allegations and inviting him to a formal disciplinary meeting.
On 7 March 2024, Mr Courbard sent an email in reply to the letter of 5 March 2024.
Also around this time, Mr Courbard spoke with ABC about the incident and the statement she gave to Mr Pathinayake. ABC says she felt awkward and a bit scared when this occurred.
On 12 March 2024, Mr Fenton, Mr McCurdy and Mr Wright met with Mr Courbard and Mr Mara.
On 14 March 2024, Mr Fenton, Mr McCurdy and Mr Wright met with Mr Courbard and informed him that his employment was terminated, providing him with a termination letter. Their evidence is that Mr Courbard was aggressive and abusive during this meeting. Mr Courbard denies this.
Did Mr Courbard hit DEF?
I find that, while he may not have intentionally hit DEF, Mr Courbard did hit DEF with his racquet on the side/hip. The evidence is clear that Mr Courbard chased after DEF, raised his racquet and directed it towards DEF’s side/hip and that the racquet did come into contact with DEF.
I believe each of the young witnesses. Their oral evidence was consistent with the statements that they provided to the Club 2 weeks after the event, and consistent with Mr Mara’s evidence of what they told him. Mr Courbard himself concedes that his racquet may have come into contact with DEF.
Mr Courbard challenged that the hit could not have been serious because DEF did not complain about it straight away and neither did ABC or GHI. I do not place much significance on this. They are young, and they were also conscious that they themselves had not behaved appropriately, even if they had initially thought it was playful. I note that they are aware of the consequences of their actions in terms of saying what happened (ie they did not initially want to ‘get him in trouble’).
Mr Courbard also challenged their statements as they were taken 2 weeks later. Mr Fenton gave evidence, which each of the 3 young witnesses confirmed, that they gave their statements separately and individually. While they were broadly consistent, there was no evidence that the 3 young witnesses colluded to lie about the events. Further, their statements were broadly similar to Mr Courbard’s version of events, differing significantly only in relation to how hard Mr Courbard hit DEF.
Did Mr Courbard threaten DEF in an aggressive manner?
I am also satisfied based on the evidence of witnesses ABC, DEF and GHI and Mr Mara that Mr Courbard threatened DEF in an aggressive manner.
All 3 young witnesses agree this occurred. Mr Mara also says this occurred, and that what he saw gave him sufficient concerns that he asked Mr Courbard about it immediately afterwards and asked the students about it at the following week’s training session.
I rely most heavily on Mr Mara, who while friendly with Mr Courbard gave evidence that would be contrary to his friend’s interests. He gave evidence openly and clearly, and was consistent with his earlier written statements. He did not exaggerate the seriousness of his evidence, nor did he downplay it. Mr Mara says that it was clear there was a heated discussion after he saw the chasing and that something serious had happened.
I believe Mr Courbard too. What happened is probably somewhere between what the young witnesses say and what Mr Courbard says. He did get angry – he was still angry at the determinative conference.
Other matters
The Club appeared to also rely on 2 other matters for its decision, or in confirmation of its decision, to dismiss Mr Courbard. First, that he intimidated ABC and second, that he was aggressive and abusive during the meeting on 14 March 2024, when his employment was terminated. I find on the balance of probabilities that both things occurred. Mr Courbard was very angry about the dismissal and aggrieved at the injustice. He remained so during the determinative conference.
In relation to ABC, while he may not have intentionally been intimidating towards her, his manner is intense and persistent. I believe that, after he found out she had given the statement, he spoke to her, questioning her intensely. I believe her that she was intimidated, scared and teary afterwards. She did not exaggerate, and she continued to express that Mr Courbard was a good coach.
In relation to being aggressive and abusive in the final meeting, the evidence of each of Mr Fenton, Mr McCurdy and Mr Wright was clear and credible.
Were the above valid reasons for dismissal?
A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.[1]
Where the dismissal relates to conduct, the Commission must be satisfied that the conduct occurred and that it justified termination. A Full Bench of the predecessor body to the Commission said:[2]
“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”
Where there are allegations of misconduct, the standard of proof is the balance of probabilities. However, the Commission should not lightly make a finding that the employee engaged in the misconduct alleged, and the nature of the alleged misconduct affects the degree of reasonable satisfaction that is required.[3] The Club’s alleged conduct is serious and I have considered the documents available, the witnesses’ oral evidence and Mr Courbard’s denials.
I have found that the conduct occurred and I consider that the conduct justified termination. In circumstances where Mr Courbard chased and then hit DEF with his racquet, even if lightly, and then raised his voice and said words that were construed as threatening, termination is justified particularly in the context of DEF being under 18 years old. Mr Courbard is also a senior tennis coach; he is in a position of trust in relation to the students whom he coaches.
Mr Courbard argued that the history of DEF’s behaviour towards him and other coaches was disrespectful and that he had informed the Club’s management but was not provided with any support or assistance to deal with it. In effect, Mr Courbard argued that DEF’s behaviour provoked his response.
I accept the probability that DEF was disrespectful, used bad language and misbehaved during training sessions. I also accept that Mr Courbard reported the disrespectful behaviour and sought assistance, even though there was no written record.
Mr Courbard is an experienced coach, who taught minors. He holds a working with children check, as he is required to, and is accredited as a tennis coach. He was inducted and trained on the Club’s policies and legal requirements around working with children and safeguarding children.
I was provided with a copy of Tennis Australia’s Safeguarding Children Code of Conduct. It was not clear whether Mr Courbard was formally trained on this Code. Mr Fenton and Mr McCurdy gave evidence that coaches are regularly inducted and trained, but were not clear that Mr Courbard was personally trained or trained on this Code. I do not give the Code much weight.
I am of the view that, even if Mr Courbard was not specifically trained on the Code, he would have or should have as a senior coach working with children been aware of his obligations around children’s welfare and safety, and should have conducted himself appropriately, even when provoked.
I also accept that the Club did not act or provide assistance or support to Mr Courbard. I found Mr McCurdy to be an evasive and defensive witness, especially when his own actions were spotlighted. I observe that the Club requires more proactive and formal steps to ensure that it and its coaches are complying with the Code. Relying on induction and ad-hoc conversations does not seem sufficient and appears to have resulted in the events of this application.
The further matter of intimidating ABC was cause for concern, and would also justify a decision to take disciplinary action. Together with the other matters, I am of the view that Mr Courbard’s conduct was misconduct that justified dismissal.
Section 387(b)& (c) – was Mr Courbard notified of the reason and given an opportunity to respond to the reason?
I am of the view that overall the Club’s procedure in dismissing Mr Courbard was fair. The requirement here is that an employee is provided with an opportunity to respond to the reason for their dismissal before a decision is taken to dismiss the employee.[4] It does not require formality and should be considered in a commonsense way.[5]
The Club held an initial investigation meeting with Mr Courbard on Monday 4 March 2024, then invited Mr Courbard to a further meeting after informing him in writing that the allegations, if substantiated, could result in the termination of his employment.
I observe that it would have been appropriate, given the seriousness of the allegations against Mr Courbard, that he was provided with more formal notification of the investigation itself prior to the first meeting on 4 March 2024. Rather, at 11:38am that day, Mr McCurdy sent Mr Courbard a text message inviting him to meet with Mr Fenton, Mr Wright and Mr McCurdy at 3pm that afternoon. Mr Courbard says that the text message informed him that the meeting was to discuss the incident with DEF and ABC.
Mr McCurdy gave evidence that he sent a text message to Mr Courbard and also telephoned him about the meeting and told him that he could have representation. Mr Courbard says that Mr McCurdy never telephoned him and never informed him that the meeting would be “against him” or that he could have representation. I prefer the evidence of Mr Courbard to Mr McCurdy on this matter – that is, that Mr McCurdy never spoke to Mr Courbard prior to the 3pm meeting and did not inform him that he could have representation. Mr McCurdy was evasive and unable to recall the sequence of events, saying that he “followed up with [Mr Courbard] the next day or whatever” and that they also saw each other at the Club.
Nevertheless, on Tuesday 5 March 2024, the Club did formally and properly notify Mr Courbard of the allegations against him and the consequences of termination of his employment. Mr Courbard wrote an email to the Club on 7 March 2024 with his written response. The Club then held a further meeting on Tuesday 12 March 2024 with Mr Courbard, at which Mr Mara attended. The Club assumed Mr Mara was attending as Mr Courbard’s support person; Mr Courbard had asked Mr Mara to attend to give his version of what occurred. The Club heard Mr Mara’s version, and Mr Mara also sent Mr McCurdy an email with his version. The Club informed Mr Courbard at this meeting that it would hold a further meeting on Thursday 14 March 2024, when it would make its decision. At the meeting on 14 March 2024, the Club dismissed Mr Courbard.
Mr Courbard challenged the fairness of the Club’s investigation. In particular, he was aggrieved that the Club did not allow him to face his accusers, being the 3 young witnesses. There is no procedural fairness requirement for an employer to allow an employee to question or cross-examine witnesses during its own investigation. The requirement that an employee is provided with an opportunity to respond means that an employee must be made aware of allegations and concerns regarding their conduct and be able to respond and defend themselves before a firm decision is made.[6] Procedural fairness also requires that a person being terminated has access to information that forms the basis of the decision to dismiss.[7] I am of the view that Mr Courbard did have access to the information that formed the Club’s view, and he had the opportunity to respond to the information.
Mr Courbard also challenged the Club’s failure to interview Mr Mara. While it did not interview Mr Mara prior to the meeting of 12 March 2024 and thought he was there to be Mr Courbard’s support person, they did listen to Mr Mara during that meeting and did receive an email from him about the events. Ultimately, Mr Mara’s evidence – which remained consistent throughout – does not assist Mr Courbard. The significance of Mr Mara’s evidence is that he did not see Mr Courbard hit DEF, but he did see Mr Courbard chase DEF and have a serious discussion with him that made Mr Mara realise something bad must have just happened.
Section 387(d) – did the Club unreasonably refuse to allow Mr Courbard to have a support person?
Mr Courbard confirmed that he never asked for a support person, so I do not give this consideration much weight in my determination. There is no requirement for an employer to inform an employee that they can have a support person present,[8] although I observe that it would prudent to do so.
Section 387(e) is not relevant as the dismissal did not relate to unsatisfactory performance.
Section 387(f) & (g) – relevance of the size of the Club and the absence of dedicated human resource management specialists or expertise in the Club in relation to the procedures followed in effecting the dismissal
The Club is a reasonable size – it has 110 employees in total. It has a board of management structure and is required to comply with Tennis Australia accreditation and other policies, including the Safeguarding Children Code of Conduct. However, it lacks dedicated human resources. I observe that, given the seriousness of the allegations, the Club should have engaged in a very robust investigation and disciplinary process. I accept that the lack of dedicated human resource specialists would have been likely to impact the procedures leading to Mr Courbard’s dismissal.
Section 387(h) - any other matters that the FWC considers relevant
Mr Courbard supplied numerous statements from club members and others whom he coached attesting to him being an exceptional tennis coach, who was professional, dedicated, kind and interacted well with them or their children. None of them attended to give evidence, and nor were they present for the events of 19 February 2024. I do not give much weight to these statements. I accept that Mr Courbard was a well-regarded tennis coach; the Club does not say otherwise.
I take into account the history of misbehaviour by DEF. The evidence before me is that he was a difficult student who challenged Mr Courbard and other coaches’ authority, was disrespectful and used bad language during lessons. However, I weigh this against Mr Courbard’s role and experience as a coach. Ultimately, Mr Courbard is the adult and is required to behave better than the young people around him, irrespective of the degree of provocation.
The impact of the dismissal on Mr Courbard is significant. The dismissal affects his reputation and may affect his coaching accreditation. Mr Courbard also made submissions about the emotional toll caused by the dismissal. This matter weighs in favour of a finding of harshness.
Conclusion & Order
Despite the harshness to Mr Courbard personally and professionally, I am not satisfied that the Club’s dismissal of Mr Courbard was harsh, unjust or unreasonable when considering each of the matters in section 387 of the Act, I have found the misconduct occurred and was serious enough that when all of the relevant factors are weighed against the others and taken into account, the dismissal was warranted and not harsh, unjust or unreasonable within the meaning of the Act.
I order that Mr Courbard’s application under matter number U2024/3247 is dismissed.
COMMISSIONER
Appearances:
G Courbard for himself.
S Fenton for the Royal South Yarra Lawn Tennis Club.
Hearing details:
2024.
19 and 20 June.
In Melbourne and using Microsoft Teams.
Appendix – s 387 of the Fair Work Act 2009
“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.
Note: For the purposes of paragraph (a), the following conduct can amount to a valid reason for the dismissal:
(a) the person sexually harasses another person; and
(b) the person does so in connection with the person's employment.”
[1] See Austin v Sandgate Taphouse Pty Ltd T/A Sandgate Post Office Hotel[2024] FWCFB 323 at [52].
[2] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 at [24].
[3] Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 / per Dixon J at 362.
[4] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 (2000) 98 IR 137 at [70]–[73].
[5] Jacobs v Moonta Health[2023] FWC 330 at [124-127].
[6] Jacobs v Moonta Health[2023] FWC 330 at [126].
[7] Katrib v Commonwealth Insurance Limited T/A CommInsure[2020] FWC 6872 at [213].
[8] Jurisic v ABB Australia Pty Ltd[2014] FWCFB 5835 at [84].
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