Gary Whitham v Apple Marketing T/A Apple Marketing Group

[2016] FWC 3192

[2016] FWC 3192

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gary Whitham
v
Apple Marketing T/A Apple Marketing Group
(U2015/6508)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 20 MAY 2016

Application for relief from unfair dismissal – harsh, unjust or unreasonable – dismissal found to be fair – application dismissed.

[1] Mr Gary Whitham (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) on 16 July 2015 alleging that the termination of his employment by Apple Marketing T/A Apple Marketing Group (the Respondent) on 16 July 2015 was unfair.

[2] The Fair Work Commission (the Commission) issued Directions on 24 August 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the matter. Amended Directions were issued on 26 August 2015, with the matter listed for hearing on 19 October 2015. However that hearing date was vacated with the matter the subject of a telephone hearing on 19 May 2016. At the telephone hearing, Mr Whitham appeared on his own behalf, while Mr Leigh Bernhardt appeared with permission for the Respondent.

[3] For the reasons set out below, I have found that Mr Whitham’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision.

Background

[4] Mr Whitham commenced employment with the Respondent on 1 October 2014 as a casual Telephone Sales Consultant.

[5] Mr Whitham was dismissed on 16 July 2015. The termination letter reads as follows:

“Dear Mr. Whitham

You were requested to attend a meeting today to discuss the outcomes of the internal investigations carried out by Apple Marketing Group Pty Ltd in relation to your allegations of bullying and sexual harassment, and to discuss the other numerous allegations that you have made against the company and certain specified employees and to also discuss your behaviour and continued employment with this organisation.
At this meeting we attempted to discuss your concerns with you and deliver our findings and to allow you to respond to these findings.

On 13 July 2015 you were sent an email correspondence in relation to the complaints that you had made and were advised that these matters were under investigation in accordance with our policies and procedures, and that you would be advised of the outcome of these investigations in due course.

You were also formally instructed on the 14th July 2015 by email from the Call Centre Manager to immediately cease the frequent, detailed and threatening nature of the emails that were being sent to the Call Centre Manager Stan Karnezis.

The specific instruction as contained in the email sent from the Call Centre Manager on 14th July 2015 being:

“Dear Gary

I’m in receipt of your latest email dated 14/07/15 in which you advise the Fair Work Ombudsman of your latest claims and allegations and advise the following:

1. You have raised some serious allegations against your fellow employees and your supervisor, these claims are being taken seriously and are currently being investigated in accordance with our policies and procedures and you will be advised of the outcome of these investigations as soon as practical.

2. You have raised serious allegations against the company which will be investigated also, but your allegations are in our view unfounded and your comments to the Fair Work Ombudsman to date are unsubstantiated and premature.

3. You have been formally disciplined in accordance with our policies, procedures and workplace requirements and although you disagree with this process it still stands and you are on your final warning.

4. In your correspondence to the FWO you continually and falsely make reference to your impending dismissal although this has not been instigated by your employer and you have not been dismissed.

5. Your emails to me are threatening, and the use of capital letters for emphasis and the threats to take legal action in each one are a form of harassment and are to stop immediately.

6. If you have legitimate workplace concerns or matters you wish to raise you are instructed to file a grievance and dispute resolution procedure as contained in the employee policy manual and not to send threatening emails to me or anyone else with veiled threats and unsubstantiated general allegations about the conduct of the company.

As outlined in this email we are investigating allegations and direct you to follow these instructions and cease your threatening behaviour or placed disciplinary action up to and including dismissal.”

Despite being advised that the investigations were ongoing and that you were to stop sending threatening emails, you replied almost immediately with additional threatening emails to the Call Centre Manager on 14th July 2015.

This was followed by further emails sent to the call Centre Manager, CEO and Business Owner on 14th and 15th July 2015 including copies of emails to the Fair Work Ombudsman and your Lawyers Maurice Blackburn.

These emails were sent in direct contravention of your direct and lawful instruction to cease these threatening emails and to raise any matters of concern or complaint under the company Grievance and Dispute Handling policy.

You have continued to raise new allegations, allegations about your recent performance management and formal warnings, personal allegations against fellow employees, and allegations against the operations and integrity of the organisation combined with direct threats of legal action and investigations if your demands are not met.

These emails contain offensive and threatening material towards existing employees and the organisation in general and are in breach of our Computer, e-mail, internet and Social Media policy.

Despite our attempts to discuss these matters with you at the meeting held today and to deal with the complaints which continue to be added to without notice, your attitude was confrontational and uncooperative and as a result of your misconduct and failure to follow a lawful instruction to cease sending threatening emails and to allow the investigations/s to take their course your employment is terminated effective close of business 16/07 2015.” 1

The Applicant’s case

[6] Mr Whitham made a number of claims in his written submission, including that:

• he had been bullied, stalked and sexually harassed whilst working for the Respondent;



• during the same time staff were constantly unfairly dismissed by the Respondent because they received three bogus official warnings, contending that the warnings were the fault of the Respondent’s underhand sales techniques;



• once an employee had received three bogus official warnings, the Respondent could dismiss the employee for any other reason, adding that in his case he was dismissed because he asked the Fair Work Ombudsman (FWO) to investigate the Respondent;



• the Respondent sacked him unfairly and bullied him both in the Call Centre Manager’s office and by pursuing him legally;



• the Respondent managed his situation in the way it dealt with all staff problems, i.e. by unfairly dismissing him;



• to cover its tracks for what was an obvious unfair dismissal, the Respondent renamed an operation to get rid of him an investigation;



• an investigation into his allegations would have asked to speak to his witnesses, would have asked him to give approximate dates and times of the bullying and harassment, would have obtained CCTV footage from the lift which would have recorded the physical sexual harassment;



• the Respondent did none of those things, proving that it was an exercise in removing him illegally and not an investigation at all;



• he recorded the meeting of 16 July 2015 at which he was terminated on his mobile phone; and



• the Respondent failed in its duty of care to protect him from ongoing bullying and harassment, adding that the Respondent planned on getting away with it by telling the Commission a bunch of lies to get around failing to adhere to workplace laws.

[7] In his submissions, Mr Whitham contended that he had provided the Commission with a copy of the recording of the 16 July 2015 meeting. However, an examination of the Commission’s electronic Case Management System does not show any record of the recording having been received.

[8] Finally, I note that Mr Whitham forwarded a number of documents to the Commission. In his Outline of Arguments/Listing of Documents received by the Commission on 15 September 2015 Mr Whitham states that the latest incident of sexual harassment occurred on 20 June 2015 in a lift and that immediately after the incident occurred he sent an email to the Respondent advising that he had been sexually abused and harassed. Mr Whitham did not provide the Commission with a copy of the alleged email. However, in the email he sent to the Respondent on 11 July 2015, Mr Whitham when discussing the incident stated “To be fair, I have not passed this information onto Apple Marketing on until now …”. In the documents Mr Witham forwarded to the Commission, he disputed, among other things, the validity of the three warnings issued to him.

[9] At the telephone hearing, Mr Witham focused on the three warnings issued to him, contending that they were a by-product of the Respondent’s business model. In response to a question from the Commission, Mr Witham stated that he disputed each of those warnings by saying that he could not recall the particular call and/or the person may have been having a bad day. Mr Whitham further contended that he had been “stitched up” by the Respondent after contacting the FWO and bringing to the Respondent’s attention that he had been sexually harassed. In short, Mr Whitham contended that he had been unfairly dismissed.

The Respondent’s case

[10] In its submissions, the Respondent set out a detailed chronology of events leading up to Mr Whitham’s dismissal. Key aspects of that chronology are as follows:

• on 8 July 2015, Mr Whitham received his third and final written warning;



• on Saturday, 11 July 2015, Mr Whitham sent an email to the Respondent raising serious allegations, including allegations of sexual harassment and bullying;



• on Sunday, 12 July 2015, Mr Whitham sent an email to both the Respondent and the FWO raising allegations of sexual harassment and bullying and other allegations against the Respondent;



• on Monday, 13 July 2015, the Call Centre Manager, Mr Karnezis, and Team Leader, Ms Kelly Noke, advised Mr Whitham that his allegations would be investigated, with that confirmed in writing at 12.06 pm on the same day;



• later that day, Mr Whitham sent two further emails to the Respondent, the latter raising further allegations regarding senior staff of the Respondent;



• on 14 July 2015, Mr Whitham emailed both the Respondent and the FWO requesting that the FWO investigate the Respondent regarding allegations that it had breached its duty of care to employees;



• also on that day, as part of its investigation, the Respondent met with employees named in Mr Whitham’s emails and established that Mr Whitham did not attend work on two of the dates that the alleged sexual harassment and bullying took place and on one of the other dates cited by Mr Whitham, the alleged bully left work one hour and 45 minutes before Mr Whitham finished his shift;



• at 1.24 pm on 14 July 2015 Mr Whitham sent the Respondent another email contending that it had done nothing in relation to his complaints, with the Respondent responding at 5.36 pm advising that the allegations were being investigated;



• the Respondent in its response also directed Mr Whitham to cease his “threatening behaviour or face disciplinary action up to and including dismissal”;



• Mr Whitham replied at 6.31 pm, 7.02 pm and 7.27 pm stating, among other things, that “As I said I have been thru this all before and an old dog at this” and “Take care and see you in court”;



• at 12.02 pm on 15 July 2015, Mr Whitham sent an email to the Respondent stating “I am in talks with FWA and Maurice Blackburn Lawyers, to prepare for the inevitable unfair dismissal case and what appears to be a looming case of Bullying when I am handed Apples phoney one sided investigation”;



• Mr Whitham was called to a meeting with the Respondent on 16 July 2015 to discuss his allegations, the Respondent’s findings and his failure to follow the instruction given to him to stop sending threatening emails to management, with the Respondent contending that Mr Whitham covertly recorded that meeting and was confrontational and uncooperative during the meeting;



• as a result of his misconduct, his failure to follow a lawful instruction and his failure to allow investigation/s to take their course, Mr Whitham was verbally advised at the end of that meeting that he had been dismissed with effect from close of business that day;



• Mr Whitham’s dismissal was subsequently confirmed in writing, with the termination letter returned unopened; and



• Mr Whitham continued to send threatening emails containing unfounded and serious allegations regarding the Respondent after he had been dismissed.

[11] Mr Karnezis provided a witness statement which largely reiterated and added to aspects of the above chronology. Among other things, Mr Karnezis deposed that on 21 July 2015 Mr Whitham sent him an email advising that he had not viewed the termination letter, with Mr Whitham’s email stating “do not attempt to send this letter or any other letter, not associated with coming to a fair settlement before the FWA hearing. Do not attempt to call me or text me with any material, not associated with coming to a fair settlement before the FWA hearing. This matter is now before the FWA and you need to deal with them.”

[12] The Respondent contended that Mr Whitham’s allegations were unfounded and that he had made defamatory statements to support a claim of unfair dismissal that he had planned and initiated, adding that it had been a time consuming and expensive use of its resources to defend Mr Whitham’s vexatious and malicious claims.

[13] At the telephone hearing, the Respondent reiterated key aspects of its written submissions, describing Mr Whitham’s behaviour is unacceptable in the extreme. Further, the Respondent characterised those aspects of Mr Whitham’s submissions critical of the way it operated and suggesting that it regularly unfairly dismissed employees as broad brush accusations which were unsubstantiated and unfounded and not relevant in the context of s.387 of the Act. In conclusion, the Respondent contended that it had dealt with the issues raised by Mr Whitham in accordance with its policies and procedures and that Mr Whitham had not been unfairly dismissed.

The statutory framework

[14] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there was no contest that Mr Whitham was a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which provide as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 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 FWC considers relevant.”

[15] There is no dispute that Mr Whitham was dismissed, so s.385(a) of the Act is satisfied. Mr Whitham contended that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. The Respondent is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether Mr Whitham was unfairly dismissed, I must consider whether his dismissal was harsh, unjust or unreasonable as per s.385(b).

Was the dismissal harsh, unjust or unreasonable?

[16] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will now address these criteria.

(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)

[17] In Rode v Burwood Mitsubishi 2 (Rode) a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd.3 The following is an extract from the Full Bench’s decision in Rode:

“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”

[18] As stated in the termination letter, Mr Whitham was dismissed as a result of his “misconduct and failure to follow a lawful instruction to cease sending threatening emails and to allow the investigations/s to take their course”.

[19] With regard to Mr Whitham’s alleged misconduct, this related to his conduct at the meeting of 16 July 2015. Mr Whitham discussed that meeting in a document he emailed to the Commission on 21 July 2016 which stated, inter alia, that:

“Apple Marketing then called me into the call centre managers (Stan) office, to hear the outcome of their biased investigation which Stan had already pre-empted.

1. During this investigation I was asked if I had a support person. I said no …

4. In that recording Lee makes out, that even though their investigation did not ask me for any further input, while it was in process, that Apple were interested in it now. Now the investigation was complete.

5. Lee also asked who my witness to the sexual harassment is. As this was more than likely so Apple could interfere with the witness by sending a threatening legal letter, I decided not to divulge that information. I am happy to divulge that information to the FWA. At no time did Apple ask for this information during the investigation which had now closed.

6. Lee made out that my input, even now, could still secure my employment, and even said he wants to ensure he does not have a disgruntled employee in the work place.

7. But that is a lie, as can be clearly heard on the audio file, when Lee starts reading from his script he prepared, to unfairly dismissed me. This occurs after I tell him I am leaving the meeting, for him refusing to send me the investigation findings in writing.

Later I am convinced to return to the meeting by Kelly Noke and Stan, who, as already documented, already knew I had been fired and just wanted to get it over with. Lee then stops with the unfair dismissal script and again tells me that they are interested in my input.

8. At the end of the call you can tell that was clearly a lie and that Apple wanted to give the impression they were interested in my feedback, but had already completed the script they used to unfairly dismiss me. It’s the exact same script you can hear Lee return to and start reading again, at the end of the call.” (Underlining added)

[20] The Respondent contended that Mr Whitham was confrontational and uncooperative during that meeting. The above extract from the document provided by Mr Whitham gives support to that contention. For instance, the document suggests that at the meeting Mr Whitham was both dismissive of the Respondent’s invitation to provide him with an opportunity to provide any material to substantiate his allegations and confirms that he sought to leave the meeting prior to it concluding (though he did return to the meeting).

[21] As to Mr Whitham’s failure to follow a lawful instruction and to allow the investigation to take its course, the material before the Commission indicates that prior to his dismissal:

• Mr Whitham raised his allegations of sexual harassment and bullying on a Saturday and three days after receiving his third and final written warning;



• prior to the Respondent having seen the email containing his allegations he had lodged a complaint with the FWO;



• he sent two further emails to the Respondent on 13 July 2015 after having been advised by it earlier that day, both verbally and in writing, that his allegations would be investigated;



• on 14 July 2015 Mr Whitham sent another email to the FWO, copied to the Respondent, requesting that the FWO investigate the Respondent and a separate email to the Respondent contending that it had done nothing in respect of his complaints;



• late on 14 July 2015 the Respondent instructed Mr Whitham to stop sending emails to Mr Karnezis and directed him to “follow these instructions and cease your threatening behaviour or placed disciplinary action up to and including dismissal”;



• Mr Whitham shortly thereafter sent a further three emails to Mr Karnezis; and



• Mr Whitham sent the Respondent a further email on 15 July 2015 advising that he was seeking legal advice.

[22] Based on the above analysis, I consider the Respondent’s instruction and direction of 14 July 2015 to have been reasonable and that Mr Whitham ignored both. Further, for Mr Whitham to complain that the Respondent had done nothing in respect of his allegations the day after he had been advised by the Respondent that his allegations would be investigated was in my view both premature and unreasonable.

[23] Finally, I note that Mr Whitham had received three warnings, with the third and final warning issued on 8 July 2015. All three warnings, based on the material Mr Whitham forwarded to the FWO on 12 July 2015, stemmed from customer complaints received by the Respondent regarding Mr Whitham.

[24] Against that background, in circumstances where Mr Whitham had received three written warnings with the latest being a final warning and drawing on the language in Selvachandran, the reasons relied upon by Respondent for dismissing Mr Whitham are “sound, defensible or wellfounded.”

[25] This supports a finding that there was a valid reason for Mr Whitham’s dismissal.

(b) Whether the person was notified of that reason

[26] Mr Whitham did not directly address this consideration in his submissions. However, as noted above, in a document emailed to the Commission on 21 July 2015 Mr Whitham set out his version of the discussion at the termination meeting of 16 July 2015. At the telephone hearing, Mr Whitham stated that he probably was notified of the reasons for his dismissal at the meeting of 16 July 2015.

[27] As also noted above, the Respondent submitted that, as a result of Mr Whitham’s conduct at the meeting of 16 July 2015, his failure to follow a lawful instruction and his failure to allow investigation/s to take their course, Mr Whitham was verbally advised at the end of that meeting that he would be dismissed with effect from close of business that day. Mr Karnezis provided a witness statement on behalf of the Respondent in which he provided a detailed account of the meeting of 16 July 2015. Among other things, Mr Karnezis deposed in his witness statement that Mr Bernhardt, the Respondent’s Human Resources Industrial Adviser, had advised Mr Whitham at the meeting that:

• on 14 July Mr Karnezis had advised him that the Respondent was dealing with the matters he had raised and not to send any other emails and instructed him to cease his threatening behaviour or face disciplinary action up to and including dismissal; and



• since then Mr Whitham had sent another four emails;



• the Respondent had decided to dismiss him with a termination letter to be sent to him.

[28] The document provided by Mr Whitham from which an extract is set out at paragraph [19] above, points to Mr Whitham having been notified of the reason for his dismissal at the meeting of 16 July 2015.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[29] A Full Bench of the then Australian Industrial Relations Commission in Crozier v Palazzo Corporation Pty Ltd 4 when considering this factor in the context of appeal against an unfair dismissal decision made under the Workplace Relations Act 1996 stated:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[30] While the material discussed at paragraph [19] above points to Mr Whitham having been notified of the reason for his dismissal at the meeting of 16 July 2015, the material is less clear as to whether or not Mr Whitham was given an opportunity to respond to that reason at the meeting. At the telephone hearing, Mr Whitham contended that he was not given an opportunity to respond at the meeting of 16 July 2015. As previously mentioned, the material before the Commission supports the Respondent’s contention that Mr Whitham was uncooperative during the meeting. Against that background and based on the parties’ antagonistic conduct during the telephone hearing, I consider it likely that even if the Respondent had provided Mr Whitham with an explicit opportunity to respond to the reason for his dismissal that Mr Whitham would have most likely been similarly uncooperative.

[31] In those circumstances, I consider this factor to be a neutral consideration.

(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

[32] The document attached to Mr Whitham’s email of 21 July 2016 (see paragraph [19] above) states that he was asked whether he had a support person. At the telephone hearing, Mr Whitham confirmed that he was offered someone from the floor as a support person.

[33] The Respondent submitted that Mr Whitham was offered the opportunity to bring a support person to the meeting but declined.

[34] I therefore consider this factor to be a neutral consideration.

(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[35] Mr Whitham was not dismissed as a result of unsatisfactory performance. Accordingly, this factor is not a relevant consideration.

(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

(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

[36] Mr Whitham did not directly address this consideration in his submissions.

[37] The Respondent submitted that it had human resources policies and procedures in place to ensure all disciplinary issues were procedurally fair and carried out with respect and confidentiality. The Respondent also submitted that it does have a human resources management specialist or expert.

[38] Accordingly, I consider this factor to be a neutral consideration.

(h) Any other matters that FWC considers relevant

[39] Neither Mr Whitham nor the Respondent pointed to any other matters which they considered the Commission should take into account.

[40] I therefore find that there are no other relevant considerations.

Conclusion

[41] Drawing on the above analysis, I find that there was a valid reason for Mr Whitham’s dismissal, that Mr Whitham was notified of that reason, that Mr Whitham’s performance is not a relevant consideration and that there are no other relevant matters. Beyond this, I find that the remaining criteria in s.387 of the Act are either neutral considerations in this case or not relevant.

[42] Having considered all of the criteria in s.387 of the Act I find that Mr Whitham’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

G. Whitham on his own behalf.

L. Bernhardt for Apple Marketing T/A Apple Marketing Group.

Hearing details:

2016.

Melbourne (telephone hearing):

May 19.

 1   Attachment to Form F3 – Employer Response to Unfair Dismissal Application

 2   Print R4471

 3 (1995) 62 IR 371

 4 (2000) 98 IR 137 at paragraph 73

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