Matthew Morrissy v Transport Accident Commission - [2022] FWC 1061

[2022] FWC 1061

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Matthew Morrissy
v

Transport Accident Commission

(U2021/5036)

COMMISSIONER MIRABELLA

MELBOURNE, 9 MAY 2022

Application for an unfair dismissal remedy.

By his application lodged on 9 June 2021, Mr Matthew Morrissy applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Mr Morrissy was employed by Transport Accident Commission (the TAC) from 23 July 2007 until his dismissal on 8 June 2021. The TAC is a Victorian government-owned organisation that funds the treatment of people injured in transport accidents and promotes road safety.

Mr Morrissy contends that his dismissal was harsh, unjust or unreasonable. He primarily seeks an order for reinstatement. The TAC contends that Mr Morrissy’s dismissal was not unfair. It says there was a valid reason to dismiss Mr Morrissy and relies on a number of matters which relate to serious misconduct as justifying the dismissal.

The matter was subject to an unsuccessful conciliation on 5 July 2021, and consequently was listed for hearing before me on 4 October and 5 October 2021. At the hearing, Mr Morrissy was represented by Ms T. Duthie of Counsel and the TAC was represented by Mr J. Zeeman of Counsel.

Mr Morrissy filed written submissions and materials in the Fair Work Commission (the Commission) on 30 July 2021. The TAC filed written submissions and materials in the Commission on 10 August 2021. Reply submissions and materials were filed by Mr Morrissy on 16 August 2021.

Mr Morrissy gave evidence on his own behalf. He also adduced evidence from a former colleague, Mr Rimon Abohadiar, former Team Manager of the Interstate Common Law team (ICL team), who was ordered to attend the Commission and give evidence in the matter. The TAC adduced evidence from the following employees:

· Ms Katherine Ryan, People and Culture Business Partner;

· Mr Damian Poel, Head of Complex Recovery and Serious Injury;

· Ms AB, Associate Solicitor in the ICL team; and

· Ms Sarah Elias, People and Culture Business Partner

Initial matters to be considered

Section 396 of the Act requires that certain matters must be determined by the Commission in relation to any unfair dismissal remedy application before the merits of the application may be considered. In respect of the matters identified in subsections (a), (b), (c) and (d) of s.396, it was not in dispute, and I find, that:

1. The application was made within the 21-day period allowed in s.394(2)(a);

2. Mr Morrissy was a person “protected from unfair dismissal” within the meaning of that expression in s.382 at the time of his dismissal by the TAC; and

3. The TAC is not a “small business employer” and the Small Business Fair Dismissal Code is not relevant; and

4. The dismissal was not a genuine redundancy.

Background

Mr Morrissy was employed by the TAC in its offices in Geelong for 14 years up until his termination. There was no evidence that prior to his conduct raised in this matter he had been disciplined for any misconduct. At the time of his dismissal, he was employed by the TAC as an Interstate Claims Coordinator in the ICL team.

During the Victorian lockdown in the second half of 2020, TAC staff were working from home and staff meetings were conducted via Zoom.

Mr Morrissy was dismissed by the TAC on 8 June 2021 on the basis of alleged serious misconduct. The TAC alleges that this serious misconduct related to breaches of various policies and to an incident on 10 March 2021 during an ICL team meeting via Zoom (the March meeting).

The TAC says that Mr Morrissy’s conduct at a previous ICL team Zoom meeting on 27 August 2020 (the August meeting) is also relevant.

Mr Morrissy had been subject to complaints by other staff following the August meeting. During the August meeting, Mr Morrissy had spoken to another member of the ICL team, Ms Lauren Johnson, in a tone that is alleged was aggressive and offensive.

Following the August meeting, there was no formal investigation but there was a meeting held on 8 September 2020 (the September meeting) to discuss the August meeting. In attendance were Mr Morrissy, Mr Dan Clair (ICL Senior Team Leader) and Ms Kaitlin Travers (People and Culture Representative). At the September meeting, Mr Morrissy was counselled and accepted that he had spoken to Ms Johnson in a disrespectful tone, offered to apologise to her, and did so.

Subsequently, the TAC engaged its external Employee Assistance Plan provider, Mr Peter Barta, to speak with the ICL team and report (the Barta Report) on how they could work more productively together.

Mr Morrissy and other members of the ICL team attended the March meeting to discuss the findings of the Barta Report. Towards the end of the March meeting, Ms AB read out a statement prepared which addressed, among other things, Ms AB’s history of surviving abuse, the possible impact of Mr Morrissy’s conduct during the August meeting on others and the possibility that Mr Morrissy’s behaviour was an example of systemic issues regarding staff behaviour at the TAC.

Mr Morrissy responded to Ms AB’s statement by stating that he was “gobsmacked” and advised that the dispute between he and Ms Johnson had been dealt with by the TAC’s People and Culture department.

As a result of complaints about Mr Morrissy’s behaviour at the March meeting, the TAC conducted a formal investigation.

On 12 March 2021, Mr Morrissy was stood down on pay while the TAC conducted an internal investigation into the March meeting. Mr Morrissy was advised of the allegations at 10:21am on 14 April 2021 by Ms Ryan. Ms Ryan had attempted to schedule the meeting for 16 April 2021, but the meeting (the April meeting) took place at 3:00pm on 14 April 2021 at Mr Morrissy’s request. Ms Ryan interviewed Mr Morrissy with Ms Belinda Morris from the TAC’s People and Culture department in attendance.

The allegations made against Mr Morrissy were that he was “disrespectful and offensive” towards Ms AB at the March meeting and that he had breached the TAC’s confidentiality policy by discussing the outcome of the informal investigation into the complaints made against him in relation to his conduct at the August meeting. Mr Morrissy was provided an opportunity to respond to those allegations during the April meeting.

On 8 June 2021, Mr Morrissy attended another meeting via Zoom with Mr Poel, Ms Ryan and Ms Venamore, People and Culture Business Partner (the termination meeting). At the termination meeting, Mr Morrissy was advised that the allegations against him had been substantiated and that his employment would be terminated immediately for serious misconduct, specifically in relation to his conduct at the March meeting. Mr Morrissy was then provided with a termination letter and the meeting concluded.

Evidence

At the time of his dismissal on 8 June 2021, Mr Morrissy was 49 years old and had been employed by the TAC for 14 years, with an unblemished performance record up until the events that led to his dismissal.

Mr Morrissy says that in early 2020, he perceived some tensions within the ICL team, which he attributed primarily to the team’s lack of support for the newly appointed Team Manager, Mr Abohadiar. He believes Mr Abohadiar was doing a reasonable job and was not given a fair chance to do his job.

The August meeting

The TAC did not provide any direct evidence of the August meeting as none of the four witnesses it relied upon attended that meeting.

With regards to the August meeting, the TAC says that:

· Mr Morrissy spoke to another member of the ICL team, Ms Johnson, in an aggressive and offensive manner and that Mr Morrissy had not attended any scheduled ICL team meetings following the August meeting, save for one meeting on 10 March 2021.

It was Mr Abohadiar’s evidence that the August meeting was a regular fortnightly meeting and one of the issues for discussion was planning contingencies arising from the delayed return to work of one of the administrative assistants due to lockdown.[1] The contingency plan proposed by Mr Abohadiar was the offer of overtime to staff who had the relevant administration experience. In his evidence, he says:

“We also pointed out that we are the interstate common law team, all of our claims come via Victorian vehicles driving interstate and having accidents. As a result of lockdown, people weren't going interstate as much and our claim numbers had been dropping quite dramatically, for the last three or four months. So we weren't anticipating that there would be an uptick in workload that would cause stress. Dan and I also stated that if the situation changed, that if Chrystelle wasn't able to return after eight weeks, or if there was a very unlikely uptick in work that we would look at the contingency of getting someone in, on a more permanent basis.”[2]

It is Mr Abohadiar’s uncontradicted evidence that Ms Johnson spoke strongly in her disapproval of the contingency plan and persisted in her objections.[3]

Mr Morrissy says that in the August meeting, he interjected when Mr Abohadiar was again being repeatedly challenged. It was Mr Morrissy’s view that Mr Abohadiar was being undermined by a colleague, Ms Johnson.

Mr Morrissy says that in response to Ms Johnson’s repeated challenges of Mr Abohadiar’s suggestions and ideas for administrative solutions for the team, he said he had a question for Ms Johnson and calmly asked her if she “had any better solutions”. Mr Abohadiar’s evidence is that Morrissy said words to the effect of “[w]hat solution have you got?”[4] Mr Morrissy’s evidence is that Ms Johnson was shocked that he had interjected and said words to the effect of “that’s not fair.”

Mr Morrissy says he responded with words to the effect of “the overtime is not a matter for you, it’s up to each individual if they want to do overtime”. He says Ms Johnson rebuffed his comments, to which Mr Morrissy responded, “we’re going around in circles, what’s been suggested by Rimon is reasonable and it’s unfair to continually argue everything.”

Mr Morrissy says that Ms Johnson said that she “felt offended by the way [Mr Morrissy] was speaking to her”, to which Mr Morrissy retorted that he “did not care as what he was saying was not offensive and he was just stating his opinion”. Mr Morrissy says that although the exchange was tense, no voices were raised.

It is Mr Abohadiar’s evidence that Mr Morrissy was frustrated, and he was blunt and assertive but that he was not aggressive or rude.[5] He says that Ms Johnson’s tone was similar to that of Mr Morrissy; he said that “Lauren's tone was, as I said, again, assertive, blunt but without being aggressive or rude.”[6]

September meeting

It is not in contention that a few days after the August meeting, Mr Morrissy attended the September meeting with Mr Clair and Ms Travers to discuss the August meeting, and some informal complaints that had been raised about it.

The TAC did not provide any direct evidence of the September meeting. The TAC concedes that no formal investigation occurred at this time.[7] Mr Morrissy says that this meeting “was quite informal and more of a general discussion about the August meeting and broader issues in the CLC Team”.[8]

Mr Morrissy says that during the September meeting he explained the events of the August meeting and acknowledged that he should not have used the tone he did in his exchange with Ms Johnson. Mr Morrissy says that he explained that he was worn down after a prolonged period of working from home and felt frustrated by the disrespect he felt was being shown towards Mr Abohadiar. Mr Morrissy says he offered to apologise to Ms Johnson and did so via email the next week.

Mr Morrissy’s contention that Ms Johnson responded to his email by thanking him is not disputed. Mr Morrissy says that he considered all matters arising out of the August meeting closed.[9]

Mr Morrissy says that at the September meeting, Ms Travers confirmed that the meeting was an informal counselling session and that there would be no disciplinary action following from it and that nothing would be recorded on his employee file.[10]

The TAC says that during the September meeting:
· Mr Morrissy was advised of the expected standard of performance and behaviour by the TAC, including that all employees of the TAC were to behave in a respectful manner in accordance with the VPS Code of Conduct;

· Mr Morrissy acknowledged his disrespectful behaviour and offered an apology to Ms Johnson;

· Mr Morrissy was advised of the improvement necessary by him to avoid further counselling and disciplinary procedures; that is, to “treat their colleagues fairly and respectfully, whilst contributing to a team culture that is respectful”; and

· Mr Morrissy was counselled about showing respect to other people in the future and reminded about his employee obligations under the VPS Code of Conduct.

The record of interview for the September meeting recorded “no” to the following questions:

“1. Is this a Counselling Session?

…
2. Is a Performance Improvement Plan required?
…
3. Is this a First Formal Warning
…
4. Is this a Second / Final Formal Warning”

Barta Report

Following the September meeting, the TAC says that as a direct result of the August 2020 incident, the TAC engaged Mr Barta to undertake a team improvement project, facilitate a meeting and provide a written report on how the ICL team could work together more productively moving forward.

Mr Morrissy says that the Barta Report was not about the August meeting, but about effective communication amongst the team more broadly.[11]

The TAC says that a key finding in the Barta Report included the following statement:

“The author of this report would not underestimate the effect of this incident on certain members of the team who struggled with the escalations and aggression shown.”

The Barta Report included the following recommendations:

· The Barta Report can be used as a basis for some communication to all staff involved in the project and was noted as a priority action item.

· The issue of the August meeting needed to be addressed as a group.

· Leadership had to be willing to engage with staff about the incident and that includes a presentation on what will be done to resolve issues regarding future meetings.

· Team leader is to work with team members on developing a Code of expectations both for departmental staff and management regarding behavioural expectations at meetings.

· Additional management coaching in the areas of interpersonal skills could build skills to improve.

· Try to re-engage the team following a period of working from home. The team should physically meet together at the earliest opportunity.

· Team managers should meet with individual employees.
· Regular team meetings to occur, with a rotating chairperson, guidelines established, agenda and minutes of meeting taken, and follow-up plans noted and reviewed before the next team meeting.

The March meeting

Mr Morrissy says that a team Zoom meeting to discuss the Barta Report in December 2020 was postponed until March 2021.

Mr Morrissy says that he was assured by Mr Clair that the August meeting would not be discussed, and that Mr Clair said words to the effect of:[12]

“[T]his will be about how to improve communication in the whole team, it is not about you or the tensions between you and Lauren at the August meeting in any way.”

It is not in dispute that a team Zoom meeting was held on 10 March 2021 for the purpose of going through the findings and recommendations of the Barta Report. Ms Johnson was not present at the March meeting.

The incident at the March meeting was in relation to a statement read by a ICL team member, Ms AB and the alleged response of Mr Morrissy. Ms AB had known Ms Johnson for nine years and thought highly of her.[13]

Prior to the reading of the statement, Ms AB says that she greeted Mr Morrissy by waving and saying, “[h]i Matty”.[14] She says that he did not respond to her. Mr Morrissy says that he did not hear Ms AB greet him but heard a few people say hello to him and he responded, “hi everyone”.[15] Ms AB describes Mr Morrissy’s demeanour as hostile.

As the March meeting was concluding, Ms AB asked to read a statement, noting that “…during the meeting we weren’t referring to the individuals involved in the incident, am I allowed to address the elephant in the room and refer to the individuals involved in the incident?”[16]

Mr Morrissy says he was concerned the statement would bring up issues relating to the August meeting and asked Mr Clair to “jump in” and not allow the statement to be read.[17] He said words to the effect that Ms AB was not even at the meeting.[18]

After some discussion, Ms AB was allowed to read her statement but was asked to omit names. Mr Morrissy says that Ms AB responded by saying words to the effect of “I’ll address the elephant in the room, but remove names”.[19] It is also the TAC’s evidence that Ms AB used the term “elephant in the room”.[20] The statement included reference to the “incident”, being the August meeting.

Mr Morrissy says he was quite upset and that he would leave the meeting if the statement was read. He says he did not want to be in a meeting that raised issues about confidential matters.[21] Ms AB says that Mr Morrissy said words to the effect of “[t]hat’s fine. I will be leaving the meeting then. I am not interested because I am not really interested in hearing anything you have to say”.[22] Mr Abohadiar does not recall Mr Morrissy saying he did not want to hear anything Ms AB had to say.[23] Mr Morrissy denies that he said he was not interested in anything Ms AB had to say.[24] Mr Morrissy says:

“I did say that I shouldn't have to listen about - if Ms AB is going to speak about the August meeting, because that's not why we were at this particular meeting. My understanding was the premise of the meeting was not to go over the August meeting.”[25]

The TAC says that Mr Morrissy stood up in his chair and raised his arms up in the air. Mr Morrissy says that, at this point, he was feeling frustrated because he believed that Mr Clair or Ms Elias should have taken control of the meeting.[26]

Ms AB read the following redacted statement:

“I was on maternity leave and was not present at the meeting in August 2020. I was not afforded the opportunity to participate in an interview with [name unidentified], though I would have liked to. I believe I could have shared some useful insights, having been a member of the team for nine years and having managed the team for a short period prior to [name unidentified]’s tenure.
I was made aware of the incident shortly after it occurred. I reached out to the team members I heard were most affected by the incident and allowed them to debrief and offered support. I am a survivor of abuse. This occurred over many years in my teens at the hands of an ex-partner. It was a long time ago, and I consider myself a strong person, however I am still triggered by things, and no doubt would have been triggered had I been present during the meeting.
I don’t disclose this history lightly, and am only doing so to highlight the impact such incidents can have, not only on the victim, but more broadly. I dreaded coming back to work. Not because I was in any way fearful of [name unidentified]. I believe the incident was a one-off and was out of character for [name unidentified]. I dreaded returning because I knew the incident was unresolved, and I was so disappointed with the lack of immediate support provided to those involved, and the time taken to resolve the issue. My return to work has not been a positive experience, and it is clear that there are still unresolved issues and tension between staff members.
This incident, along with others, leaves me concerned. If I am ever in a similar situation to [name unidentified]:

· Will my manager step in immediately to diffuse the situation and call out the behaviour?
· Will I be supported and believed?

· Will swift and appropriate action be taken by the TAC to ensure such an incident doesn’t occur again?
· Will I be treated as having been an instigator because I am someone who, like [name unidentified], speaks up, and holds others to account. I take issue with the incident being referred to by management as an “exchange” between two team members, as if [name unidentified] was somehow an equal contributor to the incident?

I believe this incident is just one of many which shows systemic issues in the way staff behaviour is addressed at the TAC. I myself, and many other women at the TAC have tolerated things at work that we should never have had to. We have not reported incidents to HR or our managers, because we know nothing will happen, because nothing has happened in the past when others have reported these individuals. To avoid any doubt, the individuals I am referring to are not current members of this team.

The TAC prides itself in valuing the principles of restorative justice and having a no tolerance policy to bullying and harassment. I sometimes question whether such values apply to TAC’s staff or just TAC clients. This is an opportunity for the TAC to uphold these values and take action. To be accountable, to apologise, and to reverse the culture of under-reporting bullying and harassment.

I must admit, I am worried that speaking up may have a negative impact on my career at the TAC. However, I feel that it must be said, and I know that my values and morals are more important to me than this job.”

Ms AB says that while she was reading her statement, Mr Morrissy “appeared to be rolling his eyes”[27] and rocking back and forth in his seat. The TAC says that Mr Morrissy was angry, defensive and aggressive. Mr Morrissy denies that he was angry or aggressive.[28] Mr Abohadiar does not agree that Mr Morrissy spoke in an aggressive tone.

Mr Morrissy says that he was deeply shocked and offended, and that the statement characterised him as a “big male bully” and Ms Johnson as the “victim” of “abuse”. He believes that at the August meeting, he and Ms Johnson had engaged equally in a terse conversation but that there had been no yelling or swearing.

It is not disputed that Mr Morrissy said that he was “gobsmacked” and “put in the hot seat.” Mr Morrissy denies that he said these words aggressively and says he was shocked, and that Ms AB’s statement inferred that he behaved abusively during the August meeting and that Ms Johnson was a “victim” of his “abuse”.

It is not material that Mr Morrissy and Ms AB differ on the timing of some of the comments; that is, whether they were made immediately before or immediately after Ms AB read her statement.

It is not in dispute that Mr Morrissy said words to the effect that the matter was confidential, had been through a process and had been resolved, and that he had done nothing wrong at the August meeting.

There is a difference in emphasis regarding Ms AB’s response. Mr Morrissy says that Ms AB responded with words to the effect of “well it’s not resolved for Lauren”[29] and Ms AB believing she said words to the effect of “[i]sn’t that a matter for Lauren as to whether it is resolved for her”.[30]

The TAC contends that Mr Morrissy said words to the effect of “from this to be coming from her today.”[31] Mr Morrissy explicitly denies he said this and says those words “never came out of my mouth.”[32] Mr Morrissy says that he said, “that’s got nothing to do with me”.[33]

Mr Morrissy says that following the March meeting, he spoke to Mr Clair and explained why he had been so upset about the statement. Mr Clair told him his reaction was a “bad look”.

Mr Morrissy says that:

“Upon reflection, I wish I had been more empathetic. Unfortunately, I felt defensive in the moment due to the statement discussing the August Meeting and the insinuations it contained about my behaviour.”[34]

The TAC says that Mr Morrissy also disclosed the confidential outcome of the August meeting, which the attendees (except Mr Clair and Mr Abohadiar) were not privy to or aware of, but for the disclosure made by Mr Morrissy. This included Ms AB who was unaware of the HR complaints until Mr Morrissy made the disclosure. Specifically, Mr Morrissy said words to the effect of “I was the subject of two HR complaints, the TAC found that I didn’t have a case to answer and that I had done nothing wrong.”[35] Mr Morrissy denies that he referred to an “HR” process as the TAC contends. But he does not deny that he referred to complaints being investigated and that he believed he had been cleared of any wrongdoing.

The stand down and the investigation

Following the March meeting, the TAC says it received notice from the Community and Public Sector Union that there would be multiple complaints against Mr Morrissy concerning his aggressive behaviour during the March meeting. The formal allegations against Mr Morrissy were:

· displaying offensive and disrespectful behaviour towards another employee of the TAC during the March meeting; and

· discussing confidential outcomes of complaints relating to the August meeting.

Mr Morrissy says that in a team Zoom meeting on 12 March 2021, Mr Clair informed him that he was to be stood down whilst his “workplace conduct” during the March meeting was investigated.

On 12 March 2021, the TAC sent Mr Morrissy a stand down letter, which included the following:

“Confidentiality

You are advised that this matter is strictly confidential and that neither you, nor your support person, should discuss this matter with any staff member. If a breach of confidentiality is established, disciplinary proceedings may be pursued, up to and including termination from employment.”

Mr Morrissy says that on the same day, Mr Clair sent an email to the ICL team informing them that he had been “placed in employer initiated leave”, and Mr Morrissy says that this shocked and humiliated him.

The TAC says that between the period of 12 March 2021 and 14 April 2021, Ms Ryan undertook interviews with various witnesses. That on or around 14 April 2021, Ms Ryan and Mr Morrissy exchanged a number of telephone and email correspondence to schedule an interview with Mr Morrissy. It is not disputed that on Mr Morrissy’s request the meeting was held on 14 April 2021, despite the nominated TAC date of 16 April 2021. The TAC says it attempted to schedule the interview on 16 April 2021, in order to allow sufficient time for Mr Morrissy to prepare prior to the interview. Mr Morrissy was also invited to bring a support person to the meeting but did not do so.

The TAC says that Ms Ryan had, on behalf of the TAC, at all times from the commencement of the investigation to 14 April 2021, kept Mr Morrissy informed, by email and telephone, of the progress of the investigation on a regular basis.

At 3:00pm on 14 April 2021, Mr Morrissy attended an interview with Ms Ryan and Ms Morris.

Mr Morrissy says that he saw the allegations against him for the first time during the April meeting and was put on the spot to respond.[36] He says that he did receive an email on 14 April 2021 at 10:21am and that the allegations were attached in a document that he did not open.

The following is the document (the Allegations document) given to Mr Morrissy purporting to detail the allegations against him:

Mr Morrissy says that the Allegations document included reference to the August meeting that was not presented as a formal allegation but referred to as “background context”. The formal allegations were that Mr Morrissy was “disrespectful and offensive” towards Ms AB at the March meeting and breached confidentiality by discussing the process he went through with People and Culture following the August meeting.

The Allegations document says that his conduct “could” breach certain policies but that no specific clauses of any policies were identified other than a general reference to confidentiality.

Mr Morrissy says that he was asked in his own words to explain what happened at the March meeting. He says he was asked whether he considered his reference to the August meeting at the March meeting to have been a breach of confidentiality. He says that:

“I explained that any confidentiality (of which there was no formal agreement or direction), in my view, already been broken by [Ms AB] reading her statement about “the incident” to everyone. I was very surprised it was alleged that I breached confidentiality, given I was adamant I did not wish to discuss the August Meeting, but [Ms AB] was permitted nonetheless to read a statement that made clear reference to it/her views on it, even when she wasn’t there.”[37]

Mr Morrissy says he was also asked if he had said “hello” to colleagues when he entered the meeting and he confirmed that he had in fact said hello.[38]

The record of Mr Morrissy’s interview noted that he was also asked the following, to which he replied in the negative:[39]

· He had rolled his eyes whilst Ms AB was reading her statement;

· He referred to Ms AB as “her” instead of by her name; and

· His facial expression and demeanour were “agro” and raging as he spoke to Ms AB.

Mr Morrissy acknowledges that he was aware of the TAC Enterprise Agreement 2017 – 2021 (TAC Enterprise Agreement) referring to possible termination of employment as a possible outcome from investigations. He says that he did not even consider this a remote possibility because he says it was never put to him that his employment could be in jeopardy.[40]

The TAC says Mr Morrissy was given an opportunity to respond to each of the allegations and that he was aware and understood the TAC Fair Treatment Policy.

Mr Morrissy says that in a voicemail to him on 28 April 2021 left by Ms Ryan, she informed him that the investigation was coming to an end and that the next step would be to discuss an outcome meeting and how he could be integrated back into the TAC.[41] Ms Ryan does not deny that re-integration into the workforce was one of the issues she would have gone through in leaving the voicemail.[42]

Ms Ryan led the investigation and considered it her investigation.[43] She says the recommendations were made by the People and Culture team.

The report said that the allegations regarding Mr Morrissy’s behaviour towards Ms AB “could” constitute a breach of policy.

Dismissal was not recommended. Regarding the alleged behaviour, a final warning was recommended, and regarding the alleged breach of confidentiality, a written warning was recommended. At the hearing, when discussing the recommendation regarding the alleged behaviour, Ms Ryan said that the recommendation was “at least” for a final warning.[44]

In cross-examination, Ms Ryan was asked by Ms Duthie:

“You've used this word at least, saying that the recommendation was at least a formal warning. If that was the focus, that it had to at least be that, it's very curious to me why that word isn't reflected in the report and it's just a formal warning recommended. That seems unusual?”[45]

Ms Ryan responds by saying “it’s a good point” and continues to explain the complexity of investigations and describes her investigation and the ensuing report as a draft.[46] Ms Ryan agrees with the contention put to her that “… the draft you take (indistinct) decision-makers doesn't use this word 'at least;' it just recommends a formal warning, but you're saying that that's because it's just a draft before you go speak to Mr Poel?”[47]

The report is an annexure to Ms Ryan’s witness statement and is described as “Redacted copy of the Investigation Report”. It is not referred to as a draft.

Ms Ryan took the report to Mr Poel and regarding this said, “[t]he conversation about the decision with regards to Matt Morrissy's situation was very quick with Damian.”[48] Ms Ryan further said, “Damian was fairly clear with regards to that particular set of allegations.”[49]

Mr Poel disagreed with the recommendations in Ms Ryan’s report and was of the view that Mr Morrissy’s conduct constituted “gross misconduct”.[50]

On 21 May 2021, Mr Poel met with Ms Ryan, Mr Peter Thomas (Senior Manager of People and Culture) and Ms Venamore to discuss the report that recommended a warning (the May meeting). Mr Poel says that Ms Ryan’s view as expressed in the report recommending a warning changed to gross misconduct after the meeting with him.[51]

Mr Poel says that following the commencement of the investigation by Ms Ryan, he received a telephone call from her confirming that the formal allegations put to Mr Morrissy were:

· That he displayed offensive and disrespectful behaviour towards Ms AB in the March meeting which humiliated her and made the workplace uncomfortable or unpleasant for other team members; and

· That, at the March meeting, he discussed the outcomes of two HR complaints made following Mr Morrissy’s behaviour during the August meeting.

Mr Poel says that on or about 19 May 2021, he received a draft investigation report prepared by Ms Ryan and that, upon reading the report, “it was clear” to him that the allegations against Mr Morrissy had been substantiated.

Mr Poel says that at the May meeting, he discussed Mr Morrissy’s behaviour and queried whether or not his continued employment was tenable “given the significant impact of his behaviour on the health and safety of others in the ICL team.”

Mr Poel says that over the next few days, he considered his response to the draft investigation report and canvassed disciplinary options and that he could not reconcile how Mr Morrissy could continue working with the ICL team. He says:

“I found it extraordinary that the Applicant would behave in the way that he did during the March Meeting, not only by disregarding [Ms AB’s] statement, but exacerbating the situation by behaving in a disrespectful and aggressive manner. In my view, the Applicant’s behaviour was disrespectful and damaging, and created an environment that was unsafe for other ICL team members, which could not be tolerated by the TAC.”[52]

Mr Poel says that at a meeting on 26 May 2021 to finalise the decision regarding disciplinary action against Mr Morrissy, he ultimately made the decision to terminate Mr Morrissy’s employment based on the investigation findings and the significant impact on the ICL team’s mental health and safety.

The termination meeting

On 8 June 2021 (termination meeting), Mr Morrissy attended a meeting with Mr Poel, Ms Venamore and Ms Ryan.

Mr Poel says that the termination meeting was intended to advise Mr Morrissy of the outcome of the investigation and the TAC’s decision in relation to the continuation of his employment.

Mr Poel says that he had decided to terminate Mr Morrissy’s employment prior to the termination meeting.[53] He says that it did not matter what Mr Morrissy said at the termination meeting as his mind was made up.[54]

Mr Poel says that he informed Mr Morrissy that the decision to terminate his employment had been made during the investigation process.[55]

Mr Morrissy says that he was told the allegations against him had been substantiated and his employment was, therefore, terminated for serious misconduct, being his “unacceptable workplace behaviour” at the March meeting.

Mr Morrissy says that Mr Poel read from a script and that Mr Morrissy was not given an opportunity to show cause why his employment should not be terminated after 14 years of unblemished service. He says his appeals for more information on how this decision was arrived at were dismissed. Mr Morrissy says that he felt completely blindsided.

Mr Poel says that, regarding each of the allegations, Mr Morrissy was told the following:

· The first allegation had been substantiated and that his conduct constituted serious misconduct and breached the VPS Code of Conduct; and

· The second allegation had been substantiated and that his conduct breached the TAC’s Resolving Issues in the Workplace Policy.

Mr Poel says that he then proceeded with the disciplinary stage of the meeting and told Mr Morrissy that his employment was terminated with immediate effect. He says the reasons he gave to Mr Morrissy included that:

· His conduct during the March meeting had been substantiated, which constituted serious misconduct;

· He had previously attended an HR meeting concerning his conduct in August 2020 of a similar (aggressive) nature and that during that meeting he had acknowledged (verbally and through his apology) that he needed to be mindful of showing respect during his interactions with his colleagues;

· Notwithstanding the discussions and his acknowledgement during the previous meeting in relation to the August 2020 incident, he had again behaved during the March meeting in an aggressive manner towards other ICL team members, particularly Ms AB; and

· His repeated behaviour of showing disrespect to his colleagues, specifically his disrespectful and aggressive behaviour towards Ms AB during the March meeting, had irreparably broken the trust in his employment relationship with the TAC.

Mr Morrissy says that there was no discussion, that the decision to terminate him had already been made without providing him with the evidence against him that had led to the substantiation of any of the allegations or provided an opportunity to respond to that evidence.

Mr Morrissy says that he asked why he had not been given warning and that he asked about the specifics of how the decision to terminate had been reached. He says the response he was given was “it’s your behaviour”.[56]

The verbal notification was subsequently confirmed in writing by a letter of termination dated 8 June 2021. Despite Mr Morrissy’s employment being terminated due to serious misconduct, as a gesture of goodwill, the TAC says it made payment of four weeks’ salary to Mr Morrissy, along with his statutory entitlement to accrued but unused annual leave, and that they offered Mr Morrissy access to EAP for a further three months at the TAC’s expense.

Mr Morrissy says he was paid 4 weeks’ pay in lieu of notice, although he was later informed by a representative from People and Culture that he was not even entitled to this payment as his employment had been terminated for serious misconduct and, therefore, he would not be receiving an additional weeks’ notice, which was otherwise payable to those over the age of 45 years old pursuant to the TAC Enterprise Agreement.

Submissions

Mr Morrissy

Section 387(a) – valid reason for the dismissal

Mr Morrissy contends that there is simply no basis upon which the Commission could be objectively satisfied that Mr Morrissy’s conduct at the March meeting, or the August meeting, constitutes serious misconduct, or even poor conduct which equates to a valid reason for dismissal.

Mr Morrissy submits that, although in cases of serious misconduct, the “valid reason” test remains the primary consideration, the Commission may find that even if there was a valid reason, a dismissal was nonetheless harsh if summary dismissal was a disproportionate response.

Mr Morrissy submits that the Commission must determine objectively whether there was a valid reason for dismissal. He says that, therefore, if the Commission is to find that Mr Morrissy’s conduct occurred and amounted to serious misconduct pursuant to regulation 1.07(2)(b), it must be objectively satisfied, to the Briginshaw standard, that Mr Morrissy’s conduct caused a serious and imminent risk to the health or safety of others.

Mr Morrissy denies that his behaviour in the March meeting (and the August meeting, for that matter) was offensive and disrespectful, or aggressive.

Accordingly, as Ms Ryan’s finding that Mr Morrissy behaved in a “disrespectful and offensive” manner towards Ms AB at the March meeting formed the basis for Mr Poel’s decision to terminate Mr Morrissy’s employment, as a threshold issue, Mr Morrissy contends that the Commission must satisfy itself that Mr Morrissy did indeed, behave in an offensive, disrespectful (or aggressive) manner towards Ms AB.

If the Commission satisfies itself that the conduct alleged actually occurred (i.e., if it is satisfied Mr Morrissy behaved in a disrespectful, offensive or aggressive manner at the March meeting), Mr Morrissy submits that only then need it consider whether that conduct then justified the decision to terminate Mr Morrissy’s employment.

Mr Morrissy submits that the exact words or actions said to constitute the “disrespectful and offensive” behaviour at the March meeting were not articulated with any further precision in the allegation document presented to Mr Morrissy, and thus the inquiry into the conduct underpinning the termination decision is simply directed to whether Mr Morrissy was indeed guilty of being “disrespectful and offensive” towards Ms AB.

Mr Morrissy submits that the Commission must determine this critical fact for itself on the evidence presented in this proceeding and that Ms Ryan’s judgment of the matter, and assessment of the evidence of the witnesses presented to her, cannot be substituted for the judgment of the Commission on the evidence before it in this proceeding.

Mr Morrissy submits that an approach has repeatedly been adopted and approved by the Commission (and its predecessor bodies). For example, Mr Morrissy submits that, in Adachi v Qantas Airways Limited,[57] Commissioner Roberts cited with approval the observations of the Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd (emphasis added by Mr Morrissy):[58]

“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved. 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.”

Mr Morrissy contends that, contrary to the TAC’s assertions, whether he engaged in “offensive” and “disrespectful” behaviour at the March meeting is squarely in issue in this proceeding.

Mr Morrissy submits that although he was dismissed for “serious misconduct”, he was nonetheless paid 4 weeks in lieu of notice and, therefore, was not summarily dismissed without notice. He says he was deprived of the additional weeks’ pay to which he was entitled as an over 45-year-old, pursuant to the TAC Enterprise Agreement, on the basis that he was dismissed for serious misconduct. Accordingly, Mr Morrissy submits that his dismissal invites consideration of the principles applicable to “serious misconduct”.

Mr Morrissy submits that serious misconduct is defined in the Fair Work Regulations 2009 (the Regulations) as including theft, fraud, assault, intoxication at work or the refusal to carry out lawful and reasonable instructions consistent with the employment contract. Mr Morrissy submits that, although it is referred to, serious misconduct is not defined in the TAC Enterprise Agreement. In referencing the Regulations, Mr Morrissy submits that the conduct complained of must reach a high bar before it is found to constitute serious misconduct, given it would ordinarily lead to a dismissal without notice. Further, he submits that terse words with colleagues in a meeting, or even two meetings, after his character has been publicly attacked, does not go anywhere near reaching this high bar.

Mr Morrissy submits that whilst it is acknowledged that he received some (but not all) of his notice entitlement, the dismissal was nonetheless for “serious misconduct” and was an entirely disproportionate response to Mr Morrissy’s behaviour at the March meeting (or even the August meeting).

Mr Morrissy says that he is not accused of theft, had not wilfully disregarded lawful instructions and has not assaulted anybody or been intoxicated at work. He says that, taking the TAC’s case at its highest, he is guilty of expressing insufficient sympathy for a colleague’s personal situation, and using a frustrated tone with her, after she read a statement about an interaction which she did not witness, which inferred that Mr Morrissy behaved in a “triggering” or “abusive” way and effectively got away with it.

Mr Morrissy submits that his distressed reaction to what he perceived to be an unjustified public attack on his character is hardly surprising and that this does not go anywhere near the type of conduct required to establish serious misconduct. He says that, to the contrary, his reaction was completely understandable, and indicative of an employee who felt humiliated and unsupported by his employer. He says that one would have thought it would have been appropriate for the TAC to offer Mr Morrissy support following this meeting, instead of chastising him further.

Mr Morrissy submits that the chain of events that followed the March meeting and the very characterisation of Mr Morrissy’s behaviour as misconduct or serious misconduct is of itself indicative of the unduly harsh, disproportionate, and unreasonable approach taken by the TAC towards him. He says that his conduct has been completely exaggerated and that it, at its absolute highest, is “low-level” poor conduct that could have been addressed with adequate support and counselling.

Mr Morrissy submits that he has been frank and forthright in his account of his behaviour at the March and August meetings. He acknowledges that he was frustrated with Ms Johnson during the August meeting. He likewise accepts that he responded in a defensive manner to Ms AB’s statement during the March meeting. However, he submits that his behaviour does not reach the bar of offensive or disrespectful, especially when considered in context.

Mr Morrissy submits that had he been dismissive of Ms AB’s personal history in another circumstance that did not also involve painting Mr Morrissy in such a negative light, perhaps an argument could be made that his behaviour could be characterised as “offensive and disrespectful”. However, he says that, considering the circumstances that led to his reaction to Ms AB’s statement, including specifically the connotations it bore, his conduct plainly cannot objectively be characterised as “offensive”, “disrespectful” or “aggressive”.

Mr Morrissy submits that the allegation that he breached confidentiality by discussing the outcomes of the human resource process following the August meeting is not objectively borne out on the facts before this Commission. He submits that this is so because no clear confidentiality direction was given to him in respect of the August meeting, or any discussions that followed, and he simply sought to defend himself after Ms AB brought up the August meeting, despite his protests that she not do so.

Mr Morrissy submits that he has been treated unfairly and his behaviour has been blown out of proportion because presumably he has been used as a scapegoat in an attempt to appease those (few) people (or organisations) complaining about him and to find an easy fix for the underlying tensions in the ICL team; the very tensions Mr Morrissy repeatedly sort to address himself in his discussions with the People and Culture team.

Mr Morrissy submits that this is clear, not only from the exaggerated description of Mr Morrissy’s low-level behaviour at the March meeting as “serious misconduct”, but also from other instances of unfair treatment towards him, including:

· The inflammatory email message circulated to the ICL team by Mr Clair on 12 March 2021, which added no more to the perfectly adequate email sent the day prior, other than to humiliate Mr Morrissy by publicly announcing that he was on “employer-initiated leave”;

· TAC’s complete disregard for Mr Morrissy’s own feelings during the August and March meetings, during which he too was on the receiving end of colleague’s frustrated tones or personal attacks against his character; and

· TAC’s allegation that it was Mr Morrissy who breached confidentiality by discussing the August meeting/process that followed, when Ms AB moments earlier was permitted to put forward her point of view of that meeting and the consequences (or alleged lack thereof) that followed without consequence. Mr Morrissy further states that it is entirely unsurprising that Mr Morrissy “walked through the door Ms AB opened” and clarified her incorrect version of events.

Sections 387(b) and (c) – notification of reason for dismissal and opportunity to respond

Mr Morrissy submits that he was entitled to be notified of the reason for any potential termination and given an opportunity to respond to that reason before the decision to terminate his employment was made, and he relies on Crozier v Palazzo Corp Pty Ltd and Wadey v YWCA Canberra.[59]

Mr Morrissy submits that, whilst he was aware that his “workplace conduct on 10 March 2021” was considered “unacceptable” and subject to an investigation, he only became aware that his conduct at the March meeting may lead to dismissal during the termination meeting. He says the decision to terminate him had been pre-determined.

Mr Morrissy submits that, had he been aware that his employment was in jeopardy during the investigation process, he would have not only had the opportunity to explain his behaviour and reaction at the March meeting and respond to the allegations he became aware of at the April meeting, but also to rely upon his 14 years of service, unblemished performance record and passion for the TAC, in an effort to influence the TAC’s decision and demonstrate why his employment should not be terminated for a moment of frustration.

However, Mr Morrissy alleges that he was only informed that his “workplace behaviour” was the reason for a dismissal at the termination meeting, during which Mr Morrissy’s attempts to explore other potential disciplinary actions or gain information on how the decision to terminate his employment had been reached, were dismissed. The outcome of the termination meeting was predetermined before Mr Morrissy had an opportunity to respond to anything, other than presenting his version of events at the March meeting, rendering the dismissal harsh, unjust and unreasonable.

Whilst an opportunity to respond for the purposes of s.387(c) of the Act does not require any specific formality, and Mr Morrissy had a chance to at least put forward his version of events of the March meeting during the “investigation”, he submits that he was nonetheless still deprived of procedural fairness during the investigation process for the following reasons:

“a. Mr Morrissy was only provided with written details of the specific allegations against him for the very first time at the April Meeting and was then put on the spot to respond to those allegations. Indeed, even then, the allegaitons were entirely inadequate as they did not appropriately specify which exact words or actions were said to breach which clause of which policy or procedure and instead made vague references to “disrespectful” or “offensive” behaviour that “could” breach certain policies;

b. Mr Morrissy was never informed that his employment may be terminated due to his behaviour at the March Meeting. Although the Stand Down letter made reference to the misconduct clauses of the TAC EBA, which contemplate termination, this is hardly sufficiently clear notice that termination was a potential outcome of the investigation, especially in circumstances where those clauses were not even included in or annexed to the letter and it was instead left to Mr Morrissy to look up the EBA to discover his employment may be at risk, rather than being expressly told this was the case. Therefore, unsurprisingly given the low-level nature of his conduct and the absence of any express indication, Mr Morrissy did not consider termination to be a possibility; and

c. Mr Morrissy was not told why the allegations against him were substantiated, or given an opportunity to respond to adverse comments made against him by other participants in the “investigation”.”

Mr Morrissy submits that he was not afforded procedural fairness as he was not provided with a genuine opportunity to understand “the case against him” and answer it armed with the necessary knowledge including knowledge of the potential consequences.

Section 387(d) – any unreasonable refusal to allow Mr Morrissy to have a support person present to assist at discussions relating to the dismissal

Mr Morrissy made no submissions on this matter.

Section 387(e) – warnings about unsatisfactory performance before the dismissal

Mr Morrissy says that he was dismissed for “serious misconduct”. If he were dismissed for poor performance, Mr Morrissy submits that he was never formally warned about unsatisfactory performance or provided with any opportunity to improve performance issues in the knowledge his employment could be in jeopardy if he failed to do so.

Section 387(f) and (g) – the degree to which the size of the TAC’s enterprise and the absence of dedicated human resource management specialists would be likely to impact on the procedures followed in effecting the dismissal

Mr Morrissy submits that the TAC is a large organisation with a dedicated People and Culture team and should, therefore, be held to a higher standard in the processes and procedures followed in effecting his dismissal.

Section 387(h) – any other relevant matters

Mr Morrissy is 49 years old and has worked exclusively for the TAC for 14 years. Mr Morrissy submits that it will be, and has already proven to be, particularly difficult for him to find comparable employment based on his experience when competing against younger workers. Mr Morrissy submits that this should weigh in favour of a finding that the dismissal was harsh, unjust or unreasonable.

The TAC

The TAC denies that Mr Morrissy’s dismissal was “harsh, unjust or unreasonable” and submits that it engaged in a procedurally fair process, leading to the termination of Mr Morrissy’s employment on 8 June 2021.

Section 387(a) – valid reason for the dismissal

The TAC submits it undertook an internal investigation and interviewed Mr Morrissy at the April meeting with the outcome of the investigation being that his conduct was found to be offensive and disrespectful in the March meeting towards another employee. It further submits that it was found Mr Morrissy’s conduct constituted serious misconduct warranting summary dismissal and that Mr Morrissy had breached the TAC’s policies and procedures, including the TAC Fair Treatment Policy, the VPS Code of Conduct and the Resolving Issues in the Workplace Policy, specifically in relation to his confidentiality obligations.

The TAC submits Mr Morrissy was given opportunities to respond to the allegations made against him. The TAC submits that it had reasonable grounds to believe that Mr Morrissy had engaged in serious misconduct, and it made a decision based on the information available to it, including Mr Morrissy’s responses.

In response to Ms AB’s statement, Mr Morrissy behaved and made a number of remarks in a disrespectful and aggressive manner towards Ms AB, examples of which included the following:

· Mr Morrissy rolling his eyes and rocking back and forth as though he was trying to contain his anger.

· Mr Morrissy responding in an aggressive tone stating that he was “gobsmacked” to have been put in the “hot seat”.

· Mr Morrissy stating that he “was the subject of two HR complaints” and that the TAC found that he “didn’t have a case to answer” and that he “had done nothing wrong.”

· Mr Morrissy saying words to the effect of “from this to be coming from her today”, referring to Ms AB (yet not using Ms AB’s name).

· A blatant disregard and lack of empathy shown towards Ms AB.
· Mr Morrissy being angry, defensive and aggressive.

The TAC submits that there can be no question as to whether Mr Morrissy engaged in the conduct described by the allegations. Rather, the TAC submits that Mr Morrissy engaged in misconduct on more than one occasion, showing a pattern of behaviour. They submit that, in the case of Diaz v Anzpac Services (Australia) Pty Limited,[60] the Full Bench held that:

· The gravity of an employee’s misconduct is increased in circumstances where the employee has previously engaged in conduct of the same or a similar conduct and has been warned not to repeat it.

· The employee’s defiance of the earlier warning(s) is an intrinsic aspect of his or her misconduct, and necessarily forms part of the assessment of the gravity of the misconduct.

The TAC submits that it considered Mr Morrissy’s misconduct in the context of his record of repeated inappropriate behaviour and formed the view that it constituted misconduct and, therefore, a valid reason for dismissal.

The TAC submits that it also considered that, even if Mr Morrissy’s conduct during the March meeting was an isolated incident (though it says it was not), such conduct alone was sufficiently serious to warrant summary dismissal, taking into account, among other things, its significant adverse impact on the mental health and safety of the other employees of the TAC.

The TAC contends that, in that regard, to allege that Mr Morrissy did not engage in serious misconduct is incorrect. They say the Regulations set out the definition of “serious misconduct”, which includes conduct that causes a serious or imminent risk to the health or safety of a person.

Section 387(b) – notification of reason for dismissal

The TAC submits that Mr Morrissy was notified verbally of the reasons for termination during the termination meeting. The TAC says that the reasons for termination were subsequently confirmed in a letter of termination dated 8 June 2021.

Section 387(c) – opportunity to respond

The TAC submits that Mr Morrissy was provided with sufficient particulars of the reasons for his dismissal to enable him to respond to them. Specifically, the TAC submits that Mr Morrissy was given the opportunity to ask questions and respond to the allegations during:

· the April meeting; and

· the termination meeting.

Section 387(d) – any unreasonable refusal to allow Mr Morrissy to have a support person present to assist at discussions relating to the dismissal

The TAC submits that Mr Morrissy was invited by the TAC to bring a support person to the April meeting and the termination meeting, but Mr Morrissy elected not to do so.

Section 387(e) – warnings about unsatisfactory performance before the dismissal

The TAC submits that the reason for the dismissal was due to Mr Morrissy’s serious misconduct, not his performance. They submit that this factor should, therefore, be treated as neutral.

Section 387(f) – the degree to which the size of the TAC’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

The TAC submits that it had at all times provided Mr Morrissy with procedural fairness leading up to the dismissal, including the investigation and disciplinary processes.

The TAC contends that this factor should, therefore, be treated as neutral.

Section 387(g) – the degree to which the absence of dedicated human resource management specialists or expertise would be likely to impact on the procedures followed in effecting the dismissal

The TAC submits that this factor is not applicable and should be treated as neutral.

Section 387(h) – any other relevant matters

The TAC submits that it is evident that Mr Morrissy’s conduct had posed a serious risk to the health of his former colleagues. The TAC says that, as evidenced in Ms AB’s witness statement, as a result of Mr Morrissy’s behaviour and conduct, she suffered significantly, and has been medically diagnosed with anxiety and post-traumatic stress disorder and has also required a medical practitioner to prescribe medication to assist with sleep and anxiety, following the March meeting.

The TAC further submits that should the Commission decide that the dismissal was harsh, unjust or unreasonable, Mr Morrissy’s pattern of conduct has resulted in the TAC and Mr Morrissy’s former colleagues completely losing trust and confidence in him. The TAC claims that Mr Morrissy displayed aggressive and inappropriate behaviour during the August meeting. The TAC submits that Mr Morrissy then did not attend an ICL team meeting until the March meeting, during which he displayed aggressive and inappropriate behaviour of the same or similar nature. The TAC submits that it is clear from the evidence that Mr Morrissy’s behaviour was not an isolated incident.

Based on Mr Morrissy’s conduct, the TAC contends that it is highly likely that Mr Morrissy would have engaged in repeated aggressive and inappropriate conduct, amounting to serious misconduct, in the near future.

Was the dismissal unfair?

Legislative background

Section 387 of the Act provides that I must take the following into account when considering whether a dismissal was harsh, unjust or unreasonable:

(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.

I am required to consider each of these criteria, to the extent that they are relevant to the factual circumstances before me.[61]

I set out my consideration of each below.

Section 387(a) – valid reason for the dismissal relating to capacity or conduct

In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[62] and should not be “capricious, fanciful, spiteful or prejudiced.”[63] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[64]

Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and that it justified termination.[65] Further, “[t]he 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.”[66]

The TAC says that Mr Morrissy was dismissed for serious misconduct, and it alleges that he had displayed offensive and disrespectful behaviour towards Ms AB that humiliated her and made the workplace uncomfortable or unpleasant for other team members. Further, it submits that at the March meeting he discussed outcomes of two HR complaints that arose out of the August meeting.

The TAC submits that there was a valid reason for Mr Morrissy’s dismissal as he was dismissed for gross misconduct. For there to be a valid reason related to Mr Morrissy’s conduct, I must find that the conduct occurred, and that it justified termination.[67]

TAC says that Mr Morrissy has a pattern of disrespectful and aggressive behaviour. It relies on the August meeting and the March meeting.

With regards to the August meeting on which the TAC relies to substantiate the claim that Mr Morrissy had a pattern of unacceptable behaviour, they provide no direct evidence. None of the TAC’s witnesses had attended the August meeting. It is curious that the other main participant in the August meeting, Ms Johnson, was not called to give evidence in support of the TAC. It is reasonable to have expected the TAC to have called Ms Johnson. The hearsay and opinion evidence of several TAC witnesses regarding the August meeting and the consequential September meeting is of little evidentiary value.

In its termination letter, the TAC refers to “allegations of misconduct” and “repeated instances of showing disrespectful behaviour.” In its written submissions, the TAC details the allegations they say illustrates that Mr Morrissy behaved and made a number of remarks in a disrespectful and aggressive manner towards Ms AB. The examples they give are:

· Mr Morrissy rolling his eyes and rocking back and forth as though he was trying to contain his anger.

· Mr Morrissy responding in an aggressive tone, stating that he was “gobsmacked” to have been put in the “hot seat”.

· Mr Morrissy stating that he “was the subject of two HR complaints” and that the TAC found that he “didn’t have a case to answer” and that he “had done nothing wrong.”

· Mr Morrissy saying words to the effect of “from this to be coming from her today”, referring to Ms AB (yet not using Ms AB’s name).

· Mr Morrissy’s blatant disregard and lack of empathy shown towards Ms AB.
· Mr Morrissy being angry, defensive and aggressive.

Mr Morrissy has repeatedly denied that he acted aggressively. I accept Mr Morrissy’s and Mr Abohadiar’s evidence that Mr Morrissy was frustrated at the August meeting but that he was not aggressive. I accept Mr Abohadiar’s evidence that Ms Johnson’s tone was similar to that of Mr Morrissy and that her “tone was … assertive, blunt but without being aggressive or rude.”[68]

The record of interview report into the August meeting answers in the negative the following:
“1. Is this a Counselling Session?

…
2. Is a Performance Improvement Plan required?
…
3. Is this a First Formal Warning
…
4. Is this a Second / Final Formal Warning”

I find that Mr Morrissy did not act aggressively at the August meeting. I accept Mr Abohadiar’s evidence that Mr Morrissy’s tone was similar to Ms Johnson’s, that tone being assertive, blunt but without being aggressive or rude. I find that Mr Morrissy did not receive a warning arising from this meeting. Accordingly, I do not find that the TAC can reasonably rely on the August meeting as evidence of aggressive and disrespectful behaviour.

The TAC says the remarks made to Ms AB were made in a disrespectful and aggressive manner. Mr Morrissy denies that he was aggressive at the March meeting. I accept that Mr Morrissy was frustrated as events unfolded at the March meeting.

Mr Morrissy denies that he rolled his eyes. The contention by Ms AB that Mr Morrissy rocked back and forth “as though he was trying to contain his anger” is mere opinion and of little evidentiary value.

I do not find that Mr Morrissy rolled his eyes or rocked back and forth in his seat. Ms AB says that Mr Morrissy “appeared to be rolling his eyes”.[69] Even Ms AB is not certain in her recollection that Mr Morrissy did roll his eyes.

Whether Mr Morrissy had rolled his eyes or not, or rocked in his chair, this cannot reasonably be considered a sackable offence and certainly not an act of gross misconduct.

I find that Mr Morrissy’s comments that he was “gobsmacked” and in the “hot seat” a reasonable reaction to Ms AB’s statement. Ms AB talked about being abused as a teenager at the hands of a former partner. In the next sentence following this revelation, she linked her abuse to Mr Morrissy by saying that she would have been “triggered” if she had been at the August meeting. It is reasonable and unsurprising that anyone in Mr Morrissy’s position would have commented as he did.

I do find that Mr Morrissy did disclose that he had been the subject of complaints arising out of the August meeting and that he believed he had done nothing wrong. I also find that there were no directives given to Mr Morrissy to keep the details of the September meeting confidential.

In light of my findings regarding the August meeting and for the reasons above, I am not of the view that this is an example of disrespect towards Ms AB.

It is Mr Morrissy saying in a frustrated tone that he believed the outcome of the August meeting was confidential. He had been told by Mr Clair that the August meeting would not be discussed. In light of the Barta Report, that was a reasonable belief for him to hold.

Mr Morrissy denies saying that he referred to Ms AB as “her” because he was speaking directly to Ms AB. This was supported by the evidence of Ms Elias. She says that Mr Morrissy said words to the effect of “I’m not interested in anything you’ve got to say”.[70] I accept that Mr Morrissy said words to this effect. That he said these words is not surprising. His evidence, which I accept, is that he felt ambushed and shocked, and that he was frustrated because, among other things, Ms AB had not attended the August meeting.

I do not find that the above comments and behaviour or any of the other bodily movements that may have been observed by Mr Morrissy during the March meeting justified termination. Mr Morrissy had admitted he was defensive. He was being accused of “triggering” abuse by a work colleague who had not been present at the meeting of the alleged behaviour, which itself has not been particularised by the TAC. It is not unreasonable for a person in Mr Morrissy’s position to be defensive.

Was it reasonable for Mr Morrissy to not empathise with Ms AB’s history of abuse?

Mr Morrissy could have been more understanding and says that, in different circumstances in which he was not a target, he would have reacted differently.

I am not of the view that Mr Morrissy not displaying empathy towards Ms AB justifies termination.

The TAC says that even if Mr Morrissy’s behaviour at the March meeting was an isolated incident, the conduct warranted summary dismissal because of its effects on the mental health and safety of other employees, and the TAC refers to the definition of “serious misconduct” in the Regulations. No medical evidence of adequate detail was submitted. Considering all the evidence and the circumstances, it is not reasonable to conclude that Mr Morrissy caused a serious or imminent risk to the health or safety of any other employees at the TAC. If I am wrong on this point, I find that it would not be reasonable to expect a person in Mr Morrissy’s position to have anticipated the alleged impact.

The TAC relies on the Regulations definition of serious misconduct, which includes conduct that causes a serious or imminent risk to the health and safety of a person.[71]

Other than the statement of Ms AB, the TAC did not tender any medical, psychological, or other evidence to support the proposition that Mr Morrissy engaged in serious misconduct as per the Regulations.

In any case, I accept Mr Morrissy’s submission that any health or safety risk at the March meeting was preventable because the TAC allowed Ms AB to read her statement when she was in an emotional and vulnerable state and that they reasonably should have known that Mr Morrissy would be defensive.

The TAC says that Mr Morrissy breached confidentiality by disclosing at the March meeting details about the outcome of an investigation into the August meeting.

It is uncontested that it was Ms AB who referred to issues in the August meeting. It is not reasonable to expect a person to remain silent and not defend themselves in a workplace meeting where they are effectively likened to an abuser.

In any case, Mr Morrissy’s uncontradicted evidence is that he was not told that the outcome of the August meeting was confidential.

The TAC submitted that there was a valid reason for the dismissal relating to Mr Morrissy’s conduct because he had breached the TAC’s policy and procedures, including:

· The VPS Code of Conduct;

· The TAC Fair Treatment Policy; and

· The Resolving Issues in the Workplace Policy and confidentiality obligations.

As the Full Bench has said, “[a] failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”[72]

With regards to breaches of policies, I accept Mr Morrissy’s submission that he was not given details of relevant specific clauses, other than in general reference to “respect”, “harassment” and “confidentiality”.

A paragraph from the TAC Fair Treatment Policy titled “Harassment” is included in Mr Morrissy’s termination letter.

The definition is broad to include “any form of behaviour which is uninvited, unwelcome and which humiliates, offends or intimidates another person or makes the workplace uncomfortable or unpleasant.” The definition is a subjective one and, in this case, is not determinative regarding valid reason.

Ms AB’s evidence was that she was offended and that Mr Morrissy’s behaviour in the March meeting was “triggering” her.[73] The TAC says that Mr Morrissy was disrespectful.[74]

Mr Morrissy’s evidence is that he was offended and humiliated. The subjective nature of offence and respect requires the application of an objective assessment of reasonableness. Although Mr Morrissy had offended Ms AB and, in so doing, did not show “respect”, in the circumstances, although it may be considered a breach of the relevant policies, such breaches were not substantial or wilful. They are not a valid reason for dismissal.

For the reasons above and due to my findings in relation to the August meeting, I do not find a breach of the Resolving Issues in the Workplace Policy.

There is no valid reason for Mr Morrissy’s dismissal related to his conduct or any breach of policy. An absence of a valid reason weighs in favour of the conclusion that the dismissal was unfair.

Sections 387(b) and (c) – notification of reason for dismissal and opportunity to respond

Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made,[75] in explicit terms,[76] and in plain and clear terms.[77]

Procedural fairness requires that an employee be notified of the reason for the dismissal before any decision is taken to terminate employment in order to provide them with an opportunity to respond to the reason or reasons identified.

Just as the question to be addressed by s.387(a) of the Act is whether there was a valid reason for Mr Morrissy’s dismissal, assessing whether notification and the opportunity to respond involves consideration of the valid reason as identified under s.387(a) of the Act.

In its own submissions, the TAC says that Mr Morrissy was notified verbally of the reasons for termination during the termination meeting. The TAC says that the reasons for termination were subsequently confirmed in a letter of termination dated 8 June 2021.

Mr Poel made the decision to terminate Mr Morrissy’s employment prior to notifying him of the reason for dismissal. He dismissed him at the termination meeting. Mr Poel was very clear in his evidence. He had not spoken to Mr Morrissy before the termination meeting. Mr Poel says that he had already made up his mind to dismiss Mr Morrissy for gross misconduct prior to the termination meeting and that nothing Mr Morrissy said would change his mind.

Mr Morrissy was provided with a summary of the allegations in the Allegations document on the same day as the April meeting. He participated in the April meeting. Although a letter dated 14 April 2021 said that “[a]ny decision regarding disciplinary action will be made in accordance with Clause 46 of the TAC Enterprise Agreement 2017 – 2021”, with clause 46 referring to termination of employment, the clause was not reproduced in the letter. Neither were the words “termination” or “dismissal” put to Mr Morrissy in relevant discussions. The April meeting was part of an investigation to ascertain what happened. The investigation was led by Ms Ryan, a senior HR professional with over 15 years’ experience and a commerce degree majoring in HR.[78] Recommendations made after the April meeting did not recommend dismissal but a warning. Mr Poel did not agree with this recommendation and determined that Mr Morrissy’s conduct constituted gross misconduct.

The TAC asserts that Mr Morrissy was given “sufficient particulars” of the allegations at the April meeting and that he had sufficient opportunity to respond at both the April and the termination meetings.

I find that the Allegations document lacked detail regarding the specific actions and words spoken by Mr Morrissy that were relied upon by the TAC to assert Mr Morrissy was “offensive and disrespectful”.

He was asked at the April meeting, as noted in the report, whether, among other things, he rolled his eyes and whether he had greeted Ms AB, or whether he had said he did not want to hear from Ms AB.

Procedural fairness required that Mr Morrissy be given specific details of the allegations against him in explicit and detailed terms and an opportunity to address these before Mr Poel decided to dismiss him.

Mr Morrissy was deprived of an opportunity to respond to clearly articulated reasons for his dismissal before he was dismissed.

At best, the Allegations document given to him on the day of the April meeting is a summary characterising the alleged behaviour and its impact. Adjectives like “offensive” and “disrespectful” are used but there are no particulars about what Mr Morrissy actually said or did that constituted the “offensive” and “disrespectful” behaviour.

Similarly, where the Allegations document refers to breaches of TAC policies and the VPS Code of Conduct, there are no references to specific clauses.

Having regard to the matters referred to above, I find that Mr Morrissy was not notified in clear and explicit terms of the reasons for his dismissal prior to the decision to dismiss being made, nor was he given an opportunity to respond to the reasons for his dismissal prior to the decision being made. This weighs in favour of the conclusion that the dismissal was unfair.

Sections 387(d) and (e) – any unreasonable refusal to allow Mr Morrissy to have a support person present to assist at discussions relating to the dismissal and warnings about unsatisfactory performance before the dismissal

These matters are not in contention and are neutral factors.

Mr Morrissy submits that as a large organisation with dedicated HR resources, the TAC should be held to a higher standard.

The TAC submits that these are neutral considerations and that, at all times, Mr Morrissy has been provided with procedural fairness.

It is not disputed that the TAC has extensive HR resources. Despite established processes, Mr Poel disagreed with the recommendations produced by TAC’s HR professionals and, without conducting any interviews or investigations himself, decided to ignore the recommendation to give Mr Morrissy a warning and instead decided to summarily dismiss him.

This weighs in favour of the conclusion that the dismissal was unfair.

Section 387(h) – any other relevant matters

Mr Morrissy says that his long tenure at the TAC with an unblemished record, his age, and the difficulty of finding comparable employment in Geelong should be factors in favour of a conclusion that the dismissal was unfair.

In addressing “any other matters”, the TAC repeats previous submissions that relate to the risk to the health of other staff. It contends that the TAC has “completely los[t] trust and confidence” in Mr Morrissy and that he will engage in “repeated aggressive and inappropriate conduct.”

I have concluded elsewhere that Mr Morrissy did not engage in any aggressive behaviour and there was not a pattern of behaviour. To the extent that the TAC believes any “inappropriate conduct” will be repeated in the future, Mr Morrissy has already expressed contrition and says in regard to Ms AB, “[u]pon reflection, I wish I had been more empathetic.”[79]

Mr Morrissy’s 14-year record of satisfactory performance and the difficulty of finding comparable work in Geelong weigh slightly in favour of a conclusion that the dismissal was unfair.

Conclusion

Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of Mr Morrissy was harsh, unjust and unreasonable. His dismissal was unjust because I have found that Mr Morrissy did not engage in all the behaviour as alleged by the TAC, including that he was not aggressive and he did not roll his eyes, and because he was not afforded procedural fairness. It was unreasonable because I have found there was no pattern of behaviour as alleged by the TAC.

The dismissal was harsh because it was disproportionate punishment. Mr Morrissy lost his job of 14 years because he was defensive and lacked empathy when a co-worker, Ms AB, said his behaviour at a previous meeting would have triggered her. Ms AB was a self-identified survivor of abuse and Mr Morrissy’s purported egregious behaviour, which she says would have triggered her, occurred at a meeting in which she was not present.

I am satisfied that Mr Morrissy was unfairly dismissed within the meaning of s.385 of the Act.

Remedy

Mr Morrissy has sought reinstatement.

Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation.

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

Given my conclusions above, the matters set out in subsections 390(1) and (2) are satisfied. Therefore, the jurisdictional preconditions to the order of an appropriate remedy are satisfied.

The question of whether to order a remedy in a case where a dismissal has been found to be unfair is a discretionary one.

The primacy of reinstatement as a remedy is highlighted in s.390(3). The discretion to order a remedy of compensation may only be exercised if I am satisfied that reinstatement is inappropriate.

Mr Morrissy seeks reinstatement to his previous position. Alternatively, Mr Morrissy seeks reinstatement to a position on terms and conditions no less favourable than those which he enjoyed immediately prior to the dismissal or, if reinstatement is deemed inappropriate, Mr Morrissy seeks compensation. If the Commission were to order reinstatement, Mr Morrissy also seeks an order for lost remuneration between his dismissal and reinstatement pursuant to s.391(3).

Mr Morrissy submits that it is clear from the terms of s.390(3)(a) that, in circumstances where a remedy is appropriate, compensation must not be ordered unless the Commission is satisfied that reinstatement is inappropriate. He contends that reinstatement is the primary remedy for an unfair dismissal and must be given due consideration first and foremost.

Mr Morrissy has attested to his passion for the TAC, his job, and his willingness to “move on”, to put this application behind him and to continue his career, long-term, at the TAC.

Mr Morrissy gave evidence that when working at the office, he would see around 20 to 30 people each day. He said that he would, however, be prepared to work from another floor of TAC’s Geelong building. As to whether he would often see employees who work on other floors of the building, he said:

“If they were friends of mine, I might join them for a coffee, from time to time, or catch up at lunch time. But, in general dealings within the building, I would be pretty much just at my workstation and not seeing other people in the building.”

Mr Morrissy also gave evidence that he would be prepared to work from home. He said that:

“I already had a work from home plan in place prior to the shutdown due to the coronavirus and working from home permanently since then, so the working from home issue, I'd be more than happy to do.”

Mr Morrissy also said that he would be prepared to work for a different team in the TAC and that he has skills transferrable to other areas of the organisation, as well as good relationships with other managers and other teams. He says that “they would be happy to have me on board.”[80]

In submitting that he be reinstated, Mr Morrissy relies on the Full Bench in Regional Express Holdings Ltd T/A Rex Airlines v Richards[81] where it said as follows:

“[26] Whenever an employer dismisses an employee for misconduct, assuming the employer is acting honestly, there is an implied loss of trust and confidence in the employee. If it is subsequently found that the termination was harsh, unjust or unreasonable it is appropriate to consider whether the relationship can be restored if the employee is reinstated. That question cannot be answered solely by reference to the views of management witnesses. All of the circumstances should be taken into account. In this case there is a number of relevant matters. They include the fact that not all of the conduct alleged against the respondent has been proven, the respondent’s apparently unblemished record in the performance of his flying duties over a period of 14 years, the fact that the misconduct is not directly related to the performance of the respondent’s professional duties as a first officer and Rex’s failure to pursue any substantial disciplinary action against another pilot who, it is alleged, has been guilty of misconduct at least as serious as that of which the respondent was accused. The significance of the last consideration is that the pilot in question is still carrying out the full range of his duties, despite allegations of conduct of a kind which, in the respondent’s case, is said to have led to an irrevocable loss of trust and confidence. Assuming a positive approach on both sides we find there is a reasonable chance that the employment relationship can be restored with the necessary level of mutual trust.” (Emphasis added by Mr Morrissy)

Mr Morrissy submits that, similarly, the conduct and events which led to his dismissal are not so damaging to the employment relationship that it cannot be restored with the necessary level of mutual trust. Thus, reinstatement is the appropriate remedy.

In responding to Mr Morrissy’s written submissions, the TAC submits that “[t]he Commission should not be persuaded to accept the Applicant’s submissions that reinstatement is an appropriate remedy.”[82]

At the hearing when Ms AB was asked about the prospect of Mr Morrissy being reinstated, she said:

“I would be devastated. I would have to quit my job. I am scared of him. I can't be in a workplace with him.”[83]

Mr Poel gave evidence that he felt concerned about the possibility of Mr Morrissy being reinstated.[84] Mr Poel said that, if reinstated, Mr Morrissy would be required to participate in team meetings and, although staff at the TAC were working remotely at the time of the hearing, Mr Poel said he expected that staff would be using the office more regularly in future and that Mr Morrissy would have to participate in both in-person and online meetings if reinstated.[85]

In cross-examination, Mr Poel said that he would interact directly with Mr Morrissy during his employment “very infrequently”[86] and that:

“Look, if we were in the building, you know, I'd probably see him in the building reasonably regularly. At the kitchen, et cetera. But since we've been remote, my interactions with team members is different because we're working very differently.”[87]

Mr Poel says he did not look at Mr Morrissy’s skill set and whether he could be redeployed because he had already made up his mind to dismiss Mr Morrissy during the investigation process.[88]

In Anderson v Thiess Pty Ltd,[89] the Full Bench included the following regarding remedies for reinstatement:

“[21] We accept the respondent’s submission that a decision as to whether it is appropriate to order the remedy of reinstatement is discretionary in nature. As was explained in the Full Bench decision in Nguyen v Vietnamese Community in Australia²⁸, a broad range of factors may be relevant in a consideration of the appropriateness of reinstatement:

…

[10] … We would observe that to describe reinstatement as the ‘primary remedy’, is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act. The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been ‘unfair’ is whether reinstatement is appropriate in the particular case.

…

[15] In Australia Meat Holdings Pty Ltd v McLauchlan a Full Bench of the AIRC gave consideration to the differences in the provisions of the IR Act and the WR Act and concluded that “a consideration of appropriateness of reinstatement involves the assessment of a broader range of factors than practicability . . . [I]n considering whether to order the reinstatement the Commission is not confined to an assessment of the practicability of such an order are that must decide whether such an order is appropriate”.”

The Full Bench in Nguyen v Vietnamese Community in Australia T/A Vietnamese Community Ethnic School South Australia Chapter[90] distilled the principles relating to the impact of loss of confidence on whether reinstatement was appropriate:

“• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.³¹

· Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.³²

· An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.³³

· The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.³⁴

· The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.³⁵”

The Full Bench further stated that:

“[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”

I adopt these principles in the consideration of this matter.

I accept the evidence of Mr Morrissy that he loves his job and wants to put this matter behind him. I accept Mr Morrissy’s submissions that the issue of reinstatement cannot be about the subjective feelings of one employee.

The TAC is a large organization based in a multi-level building in Geelong. It is not in dispute that hundreds of TAC employees work in the Geelong building. Mr Poel says that there are 460 employees that fall under his management.[91] I accept Mr Morrissy’s statement that he would see 20 to 30 people a day. The TAC office in Geelong is of significant size to accommodate the reinstatement of Mr Morrissy.

Having regard to the matters referred to above, I consider that reinstatement is not inappropriate.

I have insufficient evidence and submissions regarding the matters that I need to consider in s.391 of the Act. Accordingly, issued concurrently with this decision are directions for the filing of further material to address those matters.

COMMISSIONER

[1] Transcript of hearing on 4 October 2021 at PN500.

[2] Ibid at PN506.

[3] Ibid at PN505, PN508.

[4] Ibid at PN509.

[5] Ibid at PN510-PN512.

[6] Ibid at PN513.

[7] Respondent’s outline of submissions filed 10 August 2021 at paragraph 11.

[8] Witness statement of Matthew Morrissy dated 30 July 2021 at paragraph 24.

[9] Ibid at paragraph 31.

[10] Ibid at paragraph 28.

[11] Applicant’s outline of submissions filed 30 July 2021 at paragraph 16.

[12] Witness statement of Matthew Morrissy dated 30 July 2021 at paragraphs 36-39.

[13] Witness statement of Ms AB at paragraph 12.

[14] Ibid at paragraph 30.

[15] Witness statement of Matthew Morrissy dated 16 August 2021 at paragraph 5.

[16] Witness statement of Ms AB at paragraph 37.

[17] Applicant’s outline of submissions filed 30 July 2021 at paragraph 18.

[18] Transcript of hearing on 4 October 2021 at PN558.

[19] Witness statement of Matthew Morrissy dated 30 July 2021 at paragraph 45.

[20] Witness statement of Ms AB at paragraph 16.

[21] Transcript of hearing on 4 October 2021 at PN350.

[22] Witness statement of Ms AB at paragraph 43.

[23] Transcript of hearing on 4 October 2021 at PN561.

[24] Witness statement of Matthew Morrissy dated 16 August 2021 at paragraph 5.

[25] Transcript of hearing on 4 October 2021 at PN362.

[26] Ibid at PN365.

[27] Witness statement of Ms AB at paragraph 47.

[28] Transcript of hearing on 4 October 2021 at PN386-PN389, PN400.

[29] Witness statement of Matthew Morrissy dated 30 July 2021 at paragraph 57.

[30] Witness statement of Ms AB at paragraph 41.

[31] Ibid at paragraph 50.

[32] Transcript of hearing on 4 October 2021 at PN396.

[33] Witness statement of Sarah Elias at paragraph 39; witness statement of Matthew Morrissy dated 30 July 2021 at paragraph 57.

[34] Witness statement of Matthew Morrissy dated 16 August 2021 at paragraph 5.

[35] Respondent’s outline of submissions filed 10 August 2021 at paragraph 21.

[36] Transcript of hearing on 4 October 2021 at PN213, PN223.

[37] Witness statement of Matthew Morrissy dated 30 July 2021 at paragraph 79.

[38] Ibid at paragraph 81.

[39] Witness statement of Katherine Ryan, exhibit KR-17.

[40] Witness statement of Matthew Morrissy dated 30 July 2021 at paragraph 82.

[41] Witness statement of Matthew Morrissy dated 16 August 2021 at paragraph 3.

[42] Transcript of hearing on 4 October 2021 at PN884-PN888.

[43] Ibid at PN873-PN874.

[44] Ibid at PN896.

[45] Ibid at PN898.

[46] Ibid at PN898.

[47] Ibid at PN902.

[48] Ibid at PN890.

[49] Ibid at PN891.

[50] Transcript of hearing on 5 October 2021 at PN627.

[51] Ibid at PN635-PN636, PN644.

[52] Witness statement of Damian Poel, paragraph 39.

[53] Transcript of hearing on 5 October 2021 at PN654.

[54] Ibid at PN659.

[55] Ibid at PN655.

[56] Witness statement of Matthew Morrissy dated 30 July 2021 at paragraph 89-90.

[57] [2014] FWC 518.

[58] 17 March 2000, Print S4213.

[59] (2000) 98 IR 137; [1996] IRCA 568.

[60] [2016] FWCFB 7204.

[61] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[62] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[63] Ibid.

[64] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

[65] Edwards v Justice Giudice [1999] FCA 1836, [7].

[66] King v Freshmore (Vic) Pty Ltd Print S4213, [23]-[24].

[67] Edwards v Justice Giudice [1999] FCA 1836, [7].

[68] Transcript of hearing on 4 October 2021 at PN513.

[69] Witness statement of Ms AB at paragraph 47.

[70] Ibid at paragraph 43.

[71] Respondent’s outline of submissions filed 10 August 2021 at paragraph 45.

[72] B, C and D v Australian Postal Corporation t/a Australia Post[2013] FWCFB 6191, [36].

[73] Witness statement of Ms AB at paragraph 47.

[74] Respondent’s outline of submissions filed 10 August 2021 at paragraph 4.

[75] Chubb Security Australia Pty Ltd v Thomas Print S2679, [41].

[76] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, [150]-[151].

[77] Previsic v Australian Quarantine Inspection Services Print Q3730.

[78] Transcript of hearing on 4 October 2021 at PN727-PN729.

[79] Witness statement of Matthew Morrissy dated 16 August 2021 at paragraph 5.

[80] Transcript of hearing on 4 October 2021 at PN44-PN83.

[81] [2010] FWAFB 8753.

[82] Respondent’s outline of submissions filed 10 August 2021 at paragraph 60.

[83] Transcript of hearing on 5 October 2021 at PN111.

[84] Ibid at PN534.

[85] Ibid at PN523-PN528.

[86] Ibid at PN587.

[87] Ibid at PN588.

[88] Ibid at PN648-PN650.

[89] [2015] FWCFB 478.

[90] [2014] FWCFB 7198, [27].

[91] Transcript of hearing on 5 October 2021 at PN577-PN579.

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