Michael Meaney v Monash University

[2018] FWC 5796

[2018] FWC 5796 [Note: An appeal pursuant to s.604 (C2018/6030) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

.l Fair Work Act 2009
s.394—Unfair dismissal

Michael Meaney
v
Monash University
(U2017/13646)

COMMISSIONER CRIBB MELBOURNE, 9 OCTOBER 2018

Application for an unfair dismissal remedy.

[1] Mr Michael Meaney (the Applicant) has made an application for an unfair dismissal remedy in relation to his dismissal by Monash University (the Respondent, Monash, the University). The application is made under section 394 of the Fair Work Act 2009 (the Act).

[2] A hearing was held on Thursday 10 May 2018 and Friday 11 May 2018. Mr Meaney represented himself, while the Respondent was represented by Ms R Sweet of Counsel. Mr Meaney gave evidence as did, on behalf of Monash University, Mr Jeffrey Barratt, a Building Services Manager, Mr John Wlodarcyzk, a Building Works Coordinator, Mr Martin Blackey, Security Site Supervisor, Mr Leigh Hocking, Industrial Relations Consultant and Mr Peter Foulds, a Building Services Manager.

[3] Closing written submissions were provided by Mr Meaney on 5 June 2018 and by the Respondent on 20 June 2018. Submissions in reply were filed by Mr Meaney on 25 June 2018.

Legislative framework

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

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

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

(h) any other matters that the FWC considers relevant.”

[5] I will consider each of the criteria in turn.

Section 387(a) - valid reason for the dismissal?

[6] The reasons for Mr Meaney’s dismissal were set out in the letter from Mr Marshall, Chief Operating Officer and Senior Vice-President, dated 20 December 2018. 1 A number of allegations of serious misconduct had been found to be substantiated by the University following an investigation. Two of the allegations (1.2 and 1.3 in termination letter),2 were not relied on by the Respondent in relation to this proceeding.3

[7] In cases involving misconduct, the Commission is required to determine for itself as to whether the conduct occurred. Therefore, each of the allegations will be dealt with separately and in the order set out in the dismissal letter of 20 December 2017.

(a) Allegation 1.1 – 27 July 2017

[8] It was alleged by Monash University that Mr Meaney said to his manager (Mr Barratt) words to the effect of “You would not know, you’re a manager’s arsehole and you owe Adam an apology”. 4

Mr Meaney’s evidence

[9] It was Mr Meaney’s evidence that:

•  He confirmed that Mr Barratt approached him with some danger tags and that he said something to Mr Barratt like “What do I use them for?” 5

•  He agreed that he knew what danger tags were for. 6

•  He denied refusing to accept the danger tags. Mr Meaney explained that he was sitting at his desk when Mr Barratt came along with a handful of danger tags and was holding them out. Mr Meaney stated that Mr Barratt needed to just place the tags on his desk and that Mr Meaney didn’t need to take them out of his hands. 7

•  He thought that Mr Barratt had then said that, if Mr Meaney didn’t know what to do with them, he was in the wrong job. Mr Barratt was recalled to have then put the tags on his desk. 8

•  He denied then saying to Mr Barratt that Mr Barratt wouldn’t know and that he was a manager’s arsehole and he owed Adam an apology. 9

•  He did not recall if he said anything else (other than Mr Barratt owed Adam an apology). 10 In his comments about Mr Barratt’s witness statement, Mr Meaney denied that he said to Mr Barratt that he was not a manager’s arsehole.11

•  Mr Meaney confirmed that he had not specified the common Australian saying that he had used which Mr Barratt was said to have documented incorrectly. 12

•  He said that the common Australian saying that he had said was “You’re not even a manager’s arsehole.” 13

•  He denied saying what Mr Foulds had alleged that he had said to Mr Barratt. 14

•  He agreed that he did say something to Mr Barratt. Mr Meaney denied that he was very angry and said that he was just teasing Mr Barratt. 15

•  He confirmed that Mr Foulds had intervened in the conversation and had reminded him that he was in an open plan office. 16

•  He agreed that Mr Barratt had then walked away from the conversation. 17

•  In his response to Mr Hocking about the allegations, he had said that the manager’s arsehole comment was not said as it did not make sense. Mr Meaney agreed that he had told Mr Barratt that he owed Adam an apology. 18

•  He agreed that in his response to Mr Hocking he had not said that he had told Mr Barratt that he was “not even a manager’s arsehole.” That was said to not have been the words he had used because it didn’t make any sense. 19

Mr Barratt’s evidence

[10] Mr Barratt provided a witness statement 20 but was not cross examined by Mr Meaney in relation to this allegation. Therefore, Mr Barratt’s evidence about this allegation is that contained in Mr Barratt’s witness statement.

[11] In his witness statement, Mr Barratt stated that:

•  On 27 July 2017, he had purchased danger tags for the ESO’s to use to mark equipment to warn others that the equipment was being serviced, repaired or altered. 21

•  He approached Mr Meaney and attempted to give him the danger tags. Mr Meaney had refused to accept them and had asked what he was to use them for. 22

•  He had responded to Mr Meaney by saying that, if he did not know what to do with them, he was in the wrong job. 23

•  Mr Meaney had responded by saying “You would not know, you’re a manager’s arsehole and you owe Adam an apology.” 24

•  Mr Meaney appeared to be very angry and his body was tense. Mr Foulds intervened at this point. 25

Mr Foulds' evidence

[12] Mr Foulds provided a witness statement 26 and also gave oral evidence. It was Mr Foulds’ evidence that:

•  He witnessed a quarrel between Mr Meaney and Mr Barratt. 27

•  He witnessed Mr Meaney say aggressively to Mr Barratt that he (Mr Barratt) couldn’t manage an asshole and that he owed Adam an apology. 28

•  He could see that Mr Meaney was very angry and so had intervened. Mr Barratt walked away and Mr Meaney went to his desk. Mr Meaney seemed highly agitated and leaned back on his chair and gripped the edge of the table. 29

Mr Meaney’s submissions

[13] Mr Meaney submitted that, in denying the allegation, he was not trying to trick anyone and stated that he had been asked a question and had provided a truthful answer. It was contended that the words he had used had not suggested that Mr Barratt was an asshole. Mr Meany argued that Mr Hocking had not asked him what he had said. 30

Monash University’s submissions

[14] The University submitted that, in light of Mr Meaney’s admission during cross examination, that he had said “You’re not even a manager’s arsehole…”, the Commission could be comfortably satisfied that Mr Meaney had engaged in the conduct alleged in Allegation 1.1. 31

[15] It was argued that a simple workplace transaction had descended into Mr Meaney (without provocation) being deliberately obtuse to Mr Barratt and then launching into an abusive, public verbal attack on Mr Barratt, which required intervention from another manager. 32

[16] Monash University contended that, as Mr Meaney took a dim view of Mr Barratt’s qualifications and management skills, he believed that he was entitled to treat Mr Barratt, by virtue of the position he held, without respect and as he saw fit. 33

Considerations and conclusions

[17] It was Mr Meaney’s evidence that he had responded to Mr Barratt by saying “You’re not even a manager’s arsehole” and that Mr Barratt owed Adam an apology. It was common ground that this had been in response to Mr Barratt saying words to the effect of “If you do not know what to do with them, you’re in the wrong job.” Mr Barratt also gave evidence that he and Mr Meaney’s working relationship was not made in heaven. On the basis of the evidence before me, I find that Mr Meaney said to Mr Barratt, on 27 July 2017, “You’re not even a manager’s arsehole” and that he owed Adam an apology.

(b) Allegation 1.4 – 25 August 2017

[18] This allegation concerned Mr Meaney’s (inappropriate) behaviour at an ESO meeting on 25 August 2017 which was described as “aggressive, unprofessional and unreasonable”. 34

Mr Meaney

[19] Mr Meaney gave evidence that:

•  He did not accept that he was often aggressive during the three monthly team meetings for ERO’s. 35

•  He had raised his voice particularly towards Ms Haddad at the meeting. Mr Meaney denied yelling at Ms Haddad and said that he was talking loudly because Ms Haddad was refusing to answer his question. 36

•  He denied talking over the top of people. 37

•  He confirmed that, in his response to Mr Hocking, he had said that he had mentioned his uniform order and that Ms Haddad had berated him and that he felt like a fool. 38

•  He agreed that in his response he was also referring to Ms Haddad when he said that Ms Haddad was trying to deceive him and delay the EBA increase. Mr Meaney stated that Ms Haddad had refused to say who had made the changes. 39

•  He agreed that what happened at the meeting, after Ms Haddad had refused to say who had made the changes, was the subject of the allegation that he had behaved aggressively and unreasonably. 40

•  He said that he had a full on panic attack and blacked out and so could not recall what had happened. 41 Mr Meaney also said that he did not recall whether he had blacked out.42

•  He explained that he had a vague recollection of what happened but that, by that time, everything was closing in on him as if he went to sleep. 43

•  He recalled asking Ms Haddad who had made the changes and then at least three times and “then he was lost”. Mr Meaney thought that one of the other men had told him that he was behaving inappropriately and to sit down – which he did. 44

•  He had been through that much at the meeting that it just got to him. He didn’t know what happened but knew that he was behaving badly. That was why he had written a letter to Mr Brundell after the meeting. 45 Mr Meaney explained that he had contacted Mr Brundell because he felt bad about his behaviour.46

•  He had met with Mr Brundell and Ms Bird and told them how he was feeling and the way he had behaved at the meeting/exactly what had happened. 47

•  Mr Brundell had counselled him on techniques to remain professional; to be more pleasant and to think of other’s well-being. 48

•  He confirmed that, once he returned to work after the meeting, he began to have suicidal thoughts. 49

•  He stated that the truth was that, after the meeting, he went back to his desk and was heartbroken and suicidal. 50

•  He denied exaggerating the effect the meeting had on him or making up that he had blacked out to avoid being fully accountable. 51

•  He agreed that he had acted inappropriately at the meeting and said that it had been caused by the manager being untruthful and trying to deceive them when they had trusted the manager. Mr Meaney explained that it had affected him deeply as it was a big let down. 52

Mr Barratt

[20] Mr Barratt was not cross examined by Mr Meaney regarding this allegation. Therefore Mr Barratt’s evidence regarding this incident is as was set out in his witness statement. This was that:

•  At the toolbox meeting held on 25 August 2017, Mr Meaney spoke in an angry and aggressive manner. This was particularly towards Ms Haddad who was chairing the meeting. Mr Meaney was described as being very loud and that he talked over the top of people. 53

•  He saw no evidence that Mr Meaney had “blacked out” at this meeting. 54

•  With respect to Dr Das’ report, he agreed that the report recorded Mr Meaney having talked about the 25 August 2017 meeting. Mr Meaney agreed that there was no reference in the report to him blacking out during the meeting and starting to have suicidal thoughts. Mr Meaney did not/did not remember telling the doctor about this. 55

Mr Meaney’s submissions

[21] It was submitted by Mr Meaney that Ms Haddad had mocked him about his uniform order and refused to amend it and had talked about occupational health & safety issues that they were not prepared to fix. Mr Meaney stated that he had become anxious and that, after raising the ESO pay increase, he had asked Ms Haddad a question. It was explained that he was annoyed because Ms Haddad had done nothing to progress this issue. Mr Meaney recalled that he had asked Ms Haddad to fully explain the process and for those steps to be taken to be minuted. 56

[22] Mr Meaney recounted that Ms Haddad had then moved on to taking an allowance away and he had asked who had proposed the change. Ms Haddad was said to have refused to answer the question or have a discussion about it. Mr Meaney recalled raising his voice and a colleague had asked him to settle down. It was stated that he was devastated and that he was under more anxiety and stress than he could accept. Mr Meaney said that he had a complete mental breakdown and became quite suicidal. He had written to the Director and thought the incident had been dealt with. 57

Monash University’s submissions

[23] It was submitted that, under cross-examination, Mr Meaney had said that he had raised his voice during the meeting, particularly towards Ms Haddad. Mr Meaney was also said to have admitted that he had behaved badly and inappropriately during the meeting. The University argued that, given the unreliability of Mr Meaney’s evidence, and that his recollection had changed over time, the University’s evidence should be preferred. 58

[24] With respect to the contention that Mr Meaney’s evidence had changed over time, Monash University argued that:

•  In his response to the Hocking investigation, Mr Meaney had said that he had blacked out and did not recall the rest of the meeting. 59

•  When he met with Ms Bird and Mr Brundell, Mr Meaney did not detail what he had said about his behaviour during the meeting. 60

•  Mr Meaney did not mention blacking out to Dr Das despite telling Dr Das of the content of the meeting during which he allegedly blacked out. 61

•  The blackout evidence was a deliberate ploy by Mr Meaney to avoid answering for his behaviour during the investigation. Mr Meaney’s answers to the Hocking investigation were described as being marked by dishonesty and a lack of candour. 62

Considerations and conclusion

[25] It was Mr Meaney’s evidence that he had behaved inappropriately during the meeting on 25 August 2017. Mr Meaney stated that he had talked loudly at Ms Haddad and that, after he had asked Ms Haddad about who had made the changes to the EBA, he had then asked Ms Haddad the same question a further three times. Therefore, I find that Mr Meaney spoke loudly and angrily at Ms Haddad and, on the balance of probability, aggressively.

(c) Allegation 1.5 – email to managers on 3 October 2017

[26] It was alleged that Mr Meaney emailed Mr Foulds and Ms Haddad about his supervisor (Mr Barratt) regarding a client enquiry and used abusive and unprofessional language:

“I will need some help to stop this filthy little grub harassing me about a small oversight on a very busy morning where I have received 30 crucial alarms in 30 minutes. I have done my job and followed up on what I could with this faulty chiller when I viewed it on the BAS it looked OK. To follow-up intensely with this amount of alarms is not possible and Barret himself should know that. Furthermore for the disgusting little creep to go on to berate me about a problem the next night with a chiller that has 100% redundancy is not helpful since this has been an issue since the datacentre moved out. I could dig up plenty of mistakes this unqualified jerk has made himself. Hope I don’t have to involve HR.” 63

Mr Meaney

[27] It was Mr Meaney’s evidence that:

•  He accepted that the alarm on the MRI chiller had gone off at 6.01 am on 27 September 2017 and that he was on duty at the time.

•  He explained that the reason the alarm was missed was because he checked the wrong equipment. Mr Meaney explained that there was no hyperlink which joined the alarm on an alarm page with a BAS drawing on a BAS page. 64

•  He stated that Mr Robinson had also missed the alarm. 65

•  He confirmed that Dr Harris had asked Mr Barratt for an explanation. 66

•  He agreed that Mr Barratt had emailed himself and Mr Robinson requesting an explanation about what had happened. 67

•  He confirmed that Mr Robinson had responded to Mr Barratt’s email and said that Mr Robinson had talked him through it as well. Mr Meaney agreed that Mr Robinson had said that the alarm had occurred on Mr Meaney’s shift. 68

•  He confirmed that Mr Barratt had sent him a second email asking him to respond. 69

•  He stated that he had responded to Mr Barron’s email on 3 October 2017. 70

•  He said that Mr Barratt, in his response, had berated him for offering to help by saying that he didn’t think that Mr Meaney’s comments were constructive. Mr Meaney expressed the view that Mr Barratt didn’t need his personal account in order to write a response for Dr Harris. Mr Meaney said that all Mr Barratt needed to know was what had happened and why. 71

•  It was probably a reasonable request by Mr Barratt for information about what had happened. However, he had provided Mr Barratt with all the information he could and Mr Barratt was just badgering him/bullying him because he wanted to throw his weight around as manager. 72

•  Mr Meaney confirmed that, in his response to the investigation, he had written that, by 3 October 2017, he was overcome with anxiety. 73

•  He rejected the proposition that this was incorrect and said that there was no doubt about him having been very anxious and having panic attacks at this stage. Mr Meaney stated that he was fairly anxious and quite upset when he wrote the email. 74

•  Perhaps he had made up the idea that he was overcome with anxiety to excuse the fact that he had written about his manager as a “filthy little grub” etc. 75

•  As there were failings with the system, which had since been upgraded, he felt vindicated in terms of what he wrote in the ERO log. Mr Meaney stated that Mr Barratt didn’t have the right to speak about him like that or to ring Dr Harris and ask him to send another email so he could attach it to another email to him (Mr Meaney) so that he could ask for a further response. Mr Meaney said that Mr Barratt was “just a pest”. 76

•  He explained that management got entertainment from upsetting the guys. Mr Meaney said that they did all swear at each other and call each other names but that it had gotten a bit out of hand and a bit personal. 77

•  Ultimately, Mr Foulds and Ms Haddad ignored his request for Mr Barratt to stop harassing him. Mr Meaney explained that that was all he had wanted them to do. It was stated that it was very hard to ask the managers to do something because they wouldn’t do anything for the employees. 78 Mr Meaney said that he had framed it in a way that made the managers take notice – which they did but they did not do as he had requested.79

Mr Barratt

[28] Mr Barratt gave evidence that:

•  On 27 September 2017, he received an email from Dr Harris asking about the lack of an ERO response to a 3T MRI chiller fault alarm on a critical piece of equipment. 80

•  When Dr Harris had notified him that the chiller was in alarm he had requested Mr Robinson to check out the alarm. 81

•  He had forwarded Dr Harris’ email to Mr Meaney and Mr Robinson asking for an explanation as to why the 3T chiller alarm was not attended to at the time it was activated and why Dr Harris was required to notify the duty ERO to attend the alarm three hours after the initial alarm. 82

•  Mr Robinson replied to his email on 27 September 2017 but there was no response from Mr Meaney. 83

•  He prompted Mr Meaney on 28 September 2017 and 2 October 2017 and received a response from Mr Meaney on 3 October 2017 that he had nothing to add to Mr Robinson’s explanation. 84

•  He explained that it was Mr Meaney’s explanation that he needed as Mr Meaney was the ESO on duty at the time and Mr Robinson only picked up the slack to attend the alarm after the fact. 85

•  He had never received an explanation from Mr Meaney as to why he had not attended the alarm. 86 Mr Meaney was said to have refused to acknowledge and explain the situation.87

•  Mr Barratt stated that he needed Mr Meaney’s explanation as he was the duty ESO at the time of Mr Robinson was the relieving ESO. 88

•  On 5 October 2017, Ms Haddad forwarded him an email that Mr Meaney had sent to her and others in response to his (Mr Barratt’s) request for information on behalf of Dr Harris. This was the email the subject of this allegation. 89

•  As a result of Dr Harris’s insistence on receiving an explanation for why the alarm was missed, he had upgraded (not changed) the BAS system to the chiller. 90

•  He was advised by Dr Harris that Mr Meaney had approached him directly to discuss the issue. Dr Harris did not tell him that Mr Meaney had made an appointment to see him. 91

•  By Mr Meaney going to see Dr Harris and discussing the issue directly with him meant that Mr Meaney had given Dr Harris an explanation but would not give one to him (Mr Barratt). 92

•  When he had attended and spoken with Dr Harris himself, Dr Harris had not been appreciative of being approached directly by Mr Meaney because Mr Barratt had been unable to give him an explanation. 93

•  He agreed wholeheartedly with the proposition that the working relationship between himself and Mr Meaney wasn’t made in heaven. 94

Mr Foulds

[29] It was Mr Foulds’ written evidence that:

•  He confirmed that he had received an email from Mr Meaney which described Mr Barratt in derogatory terms. He considered the email to be highly offensive and unacceptable. 95

•  He did not address it at the time with Mr Meaney as Mr Meaney had sent it at the end of his shift. 96

•  He sent the email to Mr Barratt as he wanted to discuss it with him and get his side of the story. 97

•  Shortly after he and Ms Haddad had placed Mr Meaney on a performance improvement program in 2016, Mr Brundell advised him that Mr Meaney was not well and that he was going to miss a shift and had contacted HR. Mr Brundell did not go into detail and told him that he had been advised of this by HR. 98

•  Neither Mr Meaney nor anyone else (other than Mr Brundell) had told him that Mr Meaney was suffering from anxiety or another mental health condition. 99

Mr Meaney’s submissions

[30] Mr Meaney explained that he had written the email to Mr Foulds and Ms Haddad asking for help because he was not well and could not cope with any more harassment from Mr Barratt. It was asserted that they had ignored his concerns until it could be used against him. As a result, it was indicated that he had lodged a formal SARAH report about the incident. Mr Meaney explained that the whole saga took its toll and he took time off work and then lodged a WorkCover claim. 100

[31] It was submitted by Mr Meaney that Mr Barratt had sent five requests for information after Mr Robinson had sent a comprehensive response. One of those requests (the fourth one) were said to have been sent three minutes after his (Mr Meaney’s) knockoff time. Further, Mr Meany recounted that Mr Barratt had called Dr Harris and asked him to email a reminder about the report so Mr Barratt could email him and send a fifth request for information. 101

Monash University’s submissions

[32] Monash University argued that, during cross examination, Mr Meaney conceded that he had sent the email in question and that he stood by his comments about Mr Barratt as they were accurate and justified. 102 Therefore, it was contended that the Commission can be satisfied that the conduct in Allegation 1.5 occurred and that the email was abusive and unprofessional towards Mr Barratt.103

[33] Further, the University submitted that Mr Meaney had conceded (then later backtracked) during cross examination, that he may have made up the idea that he was overcome with anxiety to excuse the way in which he had written about his manager. In addition, it was stated that Mr Meaney did not mention to Dr Das that he was anxious at this time. Rather, Dr Das was said to have reported that it was only after this point that Mr Meaney was anxious. 104

[34] It was argued by Monash that, given the above, Mr Meaney’s response to the Hocking investigation displayed dishonesty, a profound lack of respect for hierarchy, a tendency to personal attacks and a gross overreaction to Mr Barratt’s email requests for information. 105

Considerations and conclusions

[35] Mr Meaney confirmed that he had sent the email in question to Mr Foulds and Ms Haddad on 3 October 2017. It was Mr Meaney’s evidence that it was probably a reasonable request by Mr Barratt for information about the missed alarm. However, Mr Meaney argued that Mr Barratt was badgering/bullying him and that he (Mr Meaney) was highly anxious at the time he wrote the email.

[36] Therefore, I find that Mr Meaney did send the email which is the subject of this allegation to Mr Foulds and Ms Haddad.

(d) Allegation 1.6 – ESO log entry dated 5 October 2017

[37] This allegation concerned an ESO log entry, dated 5 October 2017, which was accessible to ESO staff, when Mr Meaney wrote an inappropriate comment:

“Attended to meet Simon Harris to discuss why Barratt is not fit to manage human staff. He also showed me where the 3T chiller is and I explained to him that it does not have a graphics page and is notification only.” 106

[38] Mr Meaney gave evidence that:

•  He had written the comment in the ESO log. This was because Mr Barratt had rung people up to give him a reason to harass Mr Meaney. In doing this, Mr Meaney said that Mr Barratt “… was just being a pig.” 107

•  He didn’t think that Mr Barratt should have behaved in the way he did and he (Mr Meaney) shouldn’t have said the things that he said to him. Mr Meaney explained that, in retrospect, he supposed that one would look back and do things differently. Mr Meaney stated that there was a communication breakdown in the office and that the managers would not address the problems. 108

•  Without realising it, he had become very negative towards the workplace since January 2016 when Mr Foulds treated him badly over an incident. 109

•  There were no rules about what should be put in an ESO log except that there should be no personal opinions. 110

•  He agreed that the log entry was his opinion that Mr Barratt and others. Mr Meaney explained that it was the conclusion he came to after Mr Barratt made a series of poor management decisions. He felt that the other managers should know that Mr Barratt was not a great manager. 111

•  He was adamant that he had phoned Dr Harris and made an appointment to go and see him. This was because, as part of his job, he had to find out what the chiller was and what equipment it related to, in case there was another alarm. 112

•  Dr Harris was pleased to speak with him and was not annoyed as had been contended by Mr Barratt. 113

•  Dr Harris told him, during the meeting, that Mr Barratt had asked him to resend Mr Barratt an email requesting information about the alarm incident. 114

•  Dr Harris had queried him as to why Mr Barratt would be requesting a second email from him. 115

•  Mr Meaney explained that he and Dr Harris had walked around looking at stuff and talking. 116

•  He confirmed that he had discussed Mr Barratt with Dr Harris but was uncertain whether they just discussed an opinion. 117

•  He did not pass any comments on Mr Barratt’s management skills to Dr Harris but he thought that Dr Harris had a pretty good idea. This was said to have been why Dr Harris asked him probing questions. 118

•  He had played a straight bat with Dr Harris and had not made any comments, derogatory or otherwise, about Mr Barratt’s managerial capacity. 119

•  He had not mentioned Mr Barratt in derogatory terms to Dr Harris because it would have served him no purpose to have rundown his own department as they needed the client departments to believe that they were top-quality service people with the client’s best interests at heart. 120

•  He had already seen Dr Harris when he wrote the log. Put another way, the log entry was saying that he had met with Dr Harris and he had discussed why Mr Barratt was not a good manager.

•  He had wanted to alert the guys by writing in the log after the meeting with Dr Harris that he had met with Dr Harris and he (Mr Meaney’s) view was that, in relation to what Mr Barratt had done was Dr Harris, Mr Barratt was not fit to manage human staff. 121

[39] It was Mr Foulds’ written evidence that he was concerned that Mr Meaney was airing his grievances with Mr Barratt directly with the client (Dr Harris). He thought that this was very unprofessional behaviour on the part of Mr Meaney. 122

Mr Meaney’s submissions

[40] It was explained by Mr Meaney that the log entry was an account of his time with Dr Harris. Mr Meaney stated that he had added the first line so that his fellow ESO’s would know that there was still a problem with Mr Barratt. Mr Meaney contended that the log entry was completely ignored until after the car park incident. 123

[41] With respect to the meeting between himself and Dr Harris, Mr Meaney submitted that the following took place:

•  4 October 2017: he telephoned Dr Harris and asked to meet with him. They agreed on the following morning as Dr Harris was pretty busy that day.

•  5 October 2017: he met with Dr Harris who was happy to see him. He apologised to Dr Harris for missing the 3T chiller alarm. He explained to Dr Harris the level of remote access with the equipment. Dr Harris showed him the location of the equipment. Dr Harris mentioned that Mr Barratt had called him that morning and needed an email request for information. The entire meeting was professional and there were no lines to read in between. 124 There was nothing said about Mr Barratt’s competence to Dr Harris.125

Monash University’s submissions

[42] It was submitted by the University that Mr Meaney had agreed that he had written the entry in question in the ESO log. The University stated that Mr Meaney had also conceded that the ESO log was accessible by all ESO personnel and that the one rule about writing in the log was that personal opinions must be left out. 126

[43] In addition, Mr Meaney, in response to the Hocking investigation, had asserted that his comment that Mr Barratt was not fit to manage human staff, was reasonable. This was said to show a lack of respect for hierarchy and a troubling attitude about what was acceptable behaviour in the workplace. 127

[44] Monash contended that the Commission can be satisfied that Mr Meaney wrote an inappropriate log entry which was accessible to all ESO staff and therefore that the conduct as alleged had occurred. 128

Considerations and conclusions

[45] It was confirmed by Mr Meaney that he had written the particular entry in the ESO log in question on 5 October 2017. Therefore, I find that Mr Meaney wrote the entry in the ESO log book dated 5 October 2017.

(e) Allegations 2 and 3 – car park incident on 26 October 2017

Mr Meaney

Allegation 2

[46] It was Mr Meaney’s evidence that:

•  He acknowledged that it was his car in the photographs and that the second photograph was of the tyre marks made by his car on 26 October 2017. 129

•  He agreed that he drove his car up the driveway next to building 40 and that the rear wheels was spinning and there was a bit of a skid. 130

•  He did not agree that the back of the car was sliding sideways up the driveway but said that it had possibly slid a little bit. 131

•  He did not see any smoke from the rear tyres as it was not really much of a skid. 132

•  He thought that he had gotten a bit carried away with the accelerator pedal as he had to change down to first gear as it was quite a steep hill. 133 Mr Meaney acknowledged that he had deliberately driven his car that way.134

•  He was suffering from an adrenaline rush as, on the way to work, a car had turned in front of him and he had had to jam on his brakes and his dinner had fallen off the front seat onto the floor. Mr Meaney recalled that he was upset about his dinner and so wasn’t very happy when he got to work. 135

•  By this time, he had submitted a WorkCover claim for mental illness and didn’t really know why he was going to work that day because he should not have been. 136

•  He had not raised the prior incident with the other driver until the hearing because he didn’t think it was important. 137

•  He disagreed that his dinner fell on the floor because of the way he was driving up the driveway at Monash. 138

•  He did not hear any loud screeching of tyres possibly because he was as deaf as a post. 139

•  He did not believe that the way he drove his car posed a risk to the health and safety of people who were on campus at the time. Mr Meaney said that the area was deserted and he had a clear view at all times. 140

•  He knew how much room he needed to stop because he didn’t want to damage his car. Mr Meaney stated that there was nothing dangerous about the way he was driving – the wheels were spinning and he wasn’t going very fast as he was only in first gear. 141

•  He agreed that, from the bottom of the driveway, there was quite a blind spot. Mr Meaney said that it was 40 metres away and that by the time you got within 6 metres of the top of the hill, you had a clear view of the entire area. 142

•  He disagreed that it was a thoroughfare and said that he hadn’t seen anyone there. Mr Meaney stated that he would have been able to stop in plenty of time but that he wouldn’t do that near somebody as it would frighten the life out of them. 143

•  He did not accept that he was driving his car unpredictably as he had full control of the car. 144

•  He accepted that he shouldn’t have driven as he did on a university campus. Mr many explained that his psychiatrist had said he has a problem with adrenaline running through his body which causes his consciousness to fade. It was stated that he was aware of that when he was talking to Mr Blackey but not when he was driving. Mr Meaney stated that he had got a bit of a fright when the car turned across in front of him when he was on his way to work. 145

•  He agreed that he was not a particularly careful driver. Mr Meaney accepted that it was a bit careless having driven his car like that on campus but not that it was dangerous. 146

Allegation 3- exchange with Mr Blackey

•  He agreed that Mr Blackey had said to him that he had expected to see a kid do that and that he (Mr Meaney) had asked “What?”. 147

•  He agreed that Mr Blackey had then said “Burn up the driveway like that.” and that he had responded “You would too if you had to work at a fuckin’ place like this”. 148

•  Mr Meaney agreed that there was then a pause whilst he retrieved his dinner from the front passenger foot-well. 149

•  He agreed that Mr Blackey had said “Mike, I’ll have no alternative but to report this” and that he (Mr Meaney) had replied “Report what?”. Mr Blackey had then said “Your dangerous driving”. 150

•  He agreed that he had asked Mr Blackey “How are you qualified to determine what dangerous driving is?” and that Mr Blackey had replied “I am ex VicPol and I know what dangerous driving is. How about you grow up”. 151

•  He did not remember saying/may possibly have said to Mr Blackey “How about you just fuck off.” Instead, Mr many remembered saying, after Mr Blackey had made up his mind to report him “Well, you may as well get in your car and fuck off”. 152

•  He was not angry. Mr Blackey said a few more derogatory things to him and then walked to his car. 153

•  Mr Blackey was still talking to him/they were still in conversation when Mr Blackey moved towards his car and so Mr Meaney had followed him with his lunch in his hand and his work bag. 154

•  Mr Blackey was having a shot at him for driving his car in a manner that upset him for some reason. Mr Meaney explained that he was gathering his things to go to work and Mr Blackey was talking. Because Mr Blackey was talking, he had wandered over next to Mr Blackey’s car on his way into the office. 155

•  He was not threatening Mr Blackey but Mr Blackey made some threats towards him. Mr Meaney stated that there was no way he would have threatened Mr Blackey as he was a pretty huge guy and an ex-police officer. Mr Meaney recalled that it wasn’t a very pleasant conversation as Mr Blackey was belittling him. 156

•  He did not agree that Mr Blackey had ended the conversation and walked back to his vehicle without talking. 157

•  He denied being confrontational and said that it was Mr Blackey who was. Mr Meaney stated that he didn’t stop Mr Blackey from going anywhere. 158

•  He recalled that Mr Blackey had told him not to press his buttons which he took to be a threat as he wasn’t doing anything to press Mr Blackey’s buttons. 159

•  When they reached Mr Blackey’s vehicle, he was standing right in front of Mr Blackey but not extraordinarily close. Mr Meaney stated that he did not speak very loudly to Mr Blackey at that point. 160 Mr Meaney did not think that he had waved his arm in a pointing fashion at Mr Blackey’s head as he did not deliberately impinge on people’s safety.161

•  He said that he had pretty high anxiety because he had just been told that Mr Blackey was going to report him when he had discretion he could have exercised. 162 This was said to be although he had admitted he had done something wrong but that he hadn’t done anything dangerous.163

•  He agreed that Mr Blackey had said “How about you just take it easy, Mike, and grow up?”. Mr Meaney stated that Mr Blackey had probably told him that there was no need for him to have come barrelling up the driveway. 164

•  He did not remember Mr Blackey telling him that it was a serious safety issue or that he (Mr Meaney) had replied “Just get in your car and fuck off, you fucking idiot.” Mr Meaney said that he knew for sure that he had told Mr Blackey to get back into his car and fuck off. Mr Meaney did not remember telling Mr Blackey that he was a fucking idiot but he could have. 165

•  He agreed that Mr Blackey had told him that he was the idiot. Mr Meaney did not remember whether he had replied “You have no idea, you fucking idiot”. 166

•  He agreed that Mr Blackey had said at least once “Grow up Mike”. 167

•  He agreed that he had asked Mr Blackey how he knew his name and that Mr Blackey had replied “You’re Mike Meaney, one of the ESO’s.” 168

•  He confirmed that, as soon as he got inside, he rang the security control room and advised that a man in a black suit in a black car had made threats to him in the car park because he didn’t like the way he drove. 169

•  Mr Blackey had threatened to report his driving and had hung around and made derogatory comments. Mr Meaney recalled that, when Mr Blackey had told him not to press his buttons, he didn’t care as he was still quite suicidal. 170

•  He didn’t realise that, in his outline of argument, he had said that he had ignored Mr Blackey and had collected his things. 171

•  He had ignored Mr Blackey for a number of minutes while he was collecting his things and had taken as long as he could in the hope Mr Blackey would go. 172

•  He acknowledged that his submissions did not record what he had said in response. 173

Mr Blackey

[47] Mr Blackey provided a witness statement 174 and gave evidence that:

•  On 26 October 2017, he observed a red sedan spinning its rear wheels sliding sideways up the driveway. Mr Blackey estimated that the car was going in excess of 30 km an hour. 175

•  The wheels were spinning enough to make them smoke. 176 Mr Blackey stated that Mr Meaney had been “bagging it up” enough to make the rear wheels smoke.177

•  He had assumed that Mr Meaney was leaning forward into the foot well to retrieve his dinner which had fallen onto the floor due to the spinning of the wheels. Mr Blackey agreed that it could have happened in a previous incident. 178

•  It was his view that Mr Meaney was driving at a dangerous speed due to the lack of traction in the back tyres and the way the car disappeared round the corner sideways. 179

•  It was dangerous because the back of the car was sliding out (lack of traction) and there was a building on the right-hand side and the chance that a pedestrian could have come out. 180

•  He estimated that Mr Meaney’s car was within 5 m of the veranda on the building 181 and stated that there was a significant blindspot to the driver’s right side.182

•  As he had believed it was dangerous, he had done a U turn and investigated. Mr Blackey explained that he didn’t see the whole event at the time but later on the CCTV. 183

•  He confirmed that he had thought that it was a kid who had driven like that. 184

•  As he went to investigate, he saw Mr Meaney’s car which was a red AU – XR8 Falcon with flames down the side. Mr Blackey explained that he had presumed that a young man was driving that vehicle – in that fashion and the way it looked. 185

•  He was surprised when he got to the car and saw it was Mr Meaney. 186

•  He confirmed that he had said to Mr Meaney that he had expected to see a kid do that and that Mr Meaney had replied “What?”. Mr Blackey explained that he had then said “Burn up the driveway like that” and that Mr Meaney had responded “You would too if you had to work at a fuckin’ place like this”. 187

•  In addition to Mr Meaney saying to him “How about you just fuck off”, he thought that Mr Meaney had also said “How about you just get in your car.” 188

•  He did not believe that Mr Meaney was justified in being upset and denied that he had taken his job of him. 189

•  He believed that Mr Meaney’s driving was dangerous and stated that he had a duty to report dangerous things on site. 190

•  He told Mr Meaney that he had no alternative but to report his driving and had watched Mr Meaney retrieve his dinner from the foot well and had waited until Mr Meaney was facing him because he didn’t want to talk to Mr Meaney’s back. 191

•  When Mr Meaney then said “How about you just fuck off”, that was aggressive and he could sense it was becoming aggressive and so had returned to his vehicle. 192

•  As he retreated to his vehicle, he may very well have said “Just grow up, Mike.” but he didn’t recall saying anything else. 193

•  He denied saying that he was going to take Mr Meaney’s job off him or that he told Mr Meaney not to push his buttons. 194

•  Mr Meaney was wanting to pursue it and came to him at his vehicle. Mr Blackey recalled that Mr Meaney had stood in front of him and that it was a face-to-face altercation. Mr Blackey stated that he had not threatened Mr Meaney at all. When Mr Meaney saw that there was no retaliation or escalation, Mr Meaney was recalled to have shut it down himself and walked off. 195

•  During the conversation, Mr Meaney spoke very loudly and, at one point, Mr Meaney waved his arm in a pointing fashion near his head, making him feel increasingly concerned for his safety. 196

•  He was wary that there may have been some physicality because of the expression on Mr Meaney’s face and his anger. 197

•  He thought that Mr Meaney was angry because he had been caught driving poorly. 198

Mr Hocking

[48] It was Mr Hocking’s evidence that:

•  He had formed the view that Mr Meaney had driven his car in a way that was dangerous and erratic based on the evidence of Mr Blackey and the photographic evidence. 199

•  He reached the conclusion that Mr Meaney had abused and threatened Mr Blackey on the basis of his interview with Mr Blackey. 200

•  After he had assessed the situation and the material that was available to him, on balance, he preferred Mr Blackey’s evidence as an accurate representation of what had happened. Mr Meaney, on the other hand, was said to have simply denied it and provided no alternative explanation to his recollection of the event. 201

•  He had dealt with each of the incidents individually on a standalone basis and had assessed each incident on its merits. In some instances, it was stated that Mr Meaney had made admissions regarding some matters, in others denials and also statements of mitigation. He had simply looked at each of the incidents and formed a view, on balance, about what had occurred. 202

•  He confirmed that he had concluded that Mr Meaney had caused Mr Blackey to fear for his physical safety. This was on the basis of what Mr Blackey had told him during the interview and the lack of a credible alternative explanation as to why Mr Blackey would have said that to him if it was not true. 203

•  He had conversations with Mr Van Riet about Mr Meaney having disclosed to Ms Bird and Mr Brundell, on 8 July 2016, that he suffered from anxiety. It was his understanding that Mr Meaney had been offered support services but they were not taken up by Mr Meaney. Further, although in the notes there were questions of anxiety, there was no formal acknowledgement that Mr Meaney was suffering a condition. 204

Mr Meaney’s submissions

[49] Mr Meaney submitted that for Mr Blackey to have included an unrelated event in his witness statement, pointed to his credibility as a witness. 205

[50] It was argued by Mr Meaney that, prior to speaking with Mr Blackey, he had just completed an anxious trip to work when a vehicle braked hard in front of him for no apparent reason. Mr Meaney explained that his dinner had fallen from the seat to the floor and that he was upset about his meal having been ruined which increased his anxiety. 206

[51] Mr Meaney admitted that he was carelessly driving his car so it skidded up the hill. However, it was explained that he had let off some steam which was due to his not enjoying work at the time due to bullying and unfair treatment. Mr Meaney argued that Mr Blackey’s photograph showed faint skid marks which showed that the car was going forward and not sideways. It was contended that, if he had gone sideways, the skid marks would have been on top of each other or close together. 207

[52] It was disputed by Mr Meaney that he had driven the car dangerously and erratically on the basis that Mr Blackey would have had to have been in the car with him to know if the incident was unsafe and uncontrolled. It was stated by Mr Meaney that he had been a member of a car club where the kind of skid that Mr Blackey photographed was a normal and controlled skid. 208 Mr Meaney also argued that Mr Blackey had made an assumption about his driving and his driving ability.209

[53] Further, Mr Meaney argued that it was not possible for his dinner to have fallen onto the floor whilst he was accelerating and doing a skid. Rather, it was the unforeseen need to stop which had resulted in his meal meeting the floor. 210 Mr Meaney acknowledged that he shouldn’t have done a skid in his car and argued that it wasn’t dangerous or a risk. This was because he could see where he was going and could have stopped at any time.211

[54] With respect to his exchange with Mr Blackey, it was submitted by Mr Meaney that Mr Blackey had made unwelcome, unreasonable and hurtful comments to him when he did not know who he was and Mr Blackey had not identified himself. Mr Meaney said that Mr Blackey had threatened him by saying that he was going to report him. In addition, it was asserted that Mr Blackey had said that he knew who Mr Meaney was, had treated him with disrespect and decided instantly to report him. It was contended that a reasonable person would be prepared to negotiate with a mature adult. However, Mr Blackey had made a character assessment of him when he didn’t know what kind of person he was. 212

Monash University’s submissions

Allegation 2

[55] The University submitted that, during cross examination, Mr Meaney had substantially conceded this allegation. This was on the basis that Mr Meaney’s evidence was that he had driven up the driveway with his rear wheels spinning; there was a bit of a skid and that the car was sliding sideways up the driveway a little bit. Mr Meaney was also said to have conceded that it was possible that smoke appeared from the rear tyres. 213 Other concessions were said to have been made by Mr Meaney during cross examination. Despite the concessions, it was stated that Mr Meaney refused to concede that there was anything dangerous about the way he was driving and that he had full control of the car.214

[56] It was argued that the Commission could also be satisfied that the driving was erratic. In support of this submission, the Respondent referred to the Macquarie Dictionary definition of “erratic”. The University contended that the way Mr Meaney drove into the car park could fairly be described as erratic. 215

[57] Further, Monash University submitted that Mr Meaney’s driving, on the basis of his evidence, was also dangerous. It was argued that Mr Blackey’s evidence on the dangerous nature of Mr Meaney’s driving, should be accepted. This was on the basis of Mr Blackey’s experience as a police officer and his reliable reporting of the incident. 216

[58] Finally, the University contended that Mr Meaney’s responses to the investigation under reported his driving and/or failed to make reasonable concessions that things that Mr Blackey had observed may have been accurate. 217

Allegation 3.1

[59] The University contended that Mr Meaney had conceded during cross examination that he had said to Mr Blackey “Well, you may as well get in your car and fuck off” and that he had yelled at Mr Blackey and that he didn’t have any defence because he had done something wrong. 218 Therefore, the Commission could be satisfied that the conduct had occurred.

[60] With respect to Mr Meaney’s manner towards Mr Blackey, despite Mr Meaney’s denial that he was aggressive, it was submitted that Mr Meaney’s reaction was aggressive, abusive, unnecessary and unjustified. This was said to be particularly so when Mr Meaney was plainly in the wrong, driving as he had on a university campus. 219

[61] Further, Monash argued that Mr Blackey was entirely within his rights to query Mr Meaney and report his driving – given his role. It was stated that, in Mr Blackey’s considered opinion, Mr Meaney’s driving was excessive and suggested that Mr Meaney was a risk to safety. 220

[62] With regard to Mr Meaney’s response to the Hocking investigation, the University contended that Mr Meaney had under reported his behaviour and was therefore dishonest or exhibited a lack of candour with a tendency to attack others when he was in the wrong. 221

Allegation 3.2

[63] The University stated that Mr Meaney had conceded during cross examination that he had followed Mr Blackey back to his car as they were both still in conversation. Mr Meaney was also said to have conceded that he had stood right in front of him without being extraordinarily close. 222

[64] It was submitted by Monash that, where the two accounts differed, Mr Blackey’s account should be preferred – that Mr Meaney pursued Mr Blackey to his car in a confrontational manner but not because the conversation was continuing. This approach was said to be consistent with Mr Meaney’s response to the investigation where Mr Meaney said that he had approached Mr Blackey to see if his threats were bona fide or tough talk. 223

[65] Therefore, it was argued that the Commission could be satisfied that the conduct, as alleged, occurred. 224

Allegation 3.3

[66] It was stated by the University that Mr Meaney conceded that he might have called Mr Blackey “a fucking idiot”. However, it was argued that Mr Meaney refused to concede that he spoke very loudly or that he had waved his arm in appointing fashion near Mr Blackey’s head. 225

[67] Monash argued that Mr Blackey’s evidence should be preferred because of the contemporaneous Incident Report and because Mr Blackey was a more reliable witness than Mr Meaney. Therefore, the Commission could be satisfied that Mr Meaney used loud and aggressive language to Mr Blackey; stood extremely close to him and directly in front of his face and gesticulated aggressively. In addition, it was stated that the Commission could also be satisfied that Mr Meaney’s conduct caused Mr Blackey to be concerned that a physical altercation might be imminent. 226

[68] Given Mr Blackey’s concession that he was not afraid of Mr Meaney, it was conceded that there may not be sufficient evidence that Mr Blackey feared for his physical safety. However, it was argued by the University that Allegation 3 overall was an allegation of threatening and abusive behaviour by Mr Meaney which caused Mr Blackey to be wary that a physical altercation may be imminent. 227

Considerations and conclusions

Allegation 2

[69] It was uncontested that Mr Meaney drove his car up the driveway on campus. The precise manner in which Mr Meaney drove up the driveway was disputed. I have considered carefully the evidence before the Commission in relation to this allegation. This includes the photographs provided by Mr Blackey of the tyre marks and of Mr Meaney’s car. I have formed the view that Mr Meaney’s car was sliding sideways up the driveway with the rear wheels spinning in a bit of a skid.

[70] On the basis of the photographs of the skid marks, I have not been persuaded that Mr Meaney was doing a “burnout”. The skid marks do not seem to be dark enough to show that it was a burnout rather than a slide sideways in a skid. On the balance of probability, the tyres may have been screeching. However, I am not aware of what the tyre pressures were in the back tyres and so cannot form a definitive view on the loudness of the screeching. However, I have not been persuaded that the tyres were also smoking. The tyre marks in the photographs do not appear to be sufficiently dark or pronounced so as to have been made during a burnout which is normally accompanied by smoking tyres.

Allegation 3

[71] There were three separate parts to this allegation. The first aspect (Allegation 3.1) was that Mr Meaney had essentially told Mr Blackey to fuck off after Mr Blackey had challenged Mr Meaney about his driving. In his evidence, Mr Meaney stated that he had said to Mr Blackey “Well, you may as well get in your car and fuck off”. Therefore, the Commission finds that that is what Mr Meaney said to Mr Blackey.

[72] The Commission also finds that, on Mr Meaney’s way to work, there was an incident with a car braking sharply in front of him which caused his dinner to move off the front passenger seat and into the foot well. It is not accepted that Mr Meaney’s dinner was propelled into the footwell whilst he was in a bit of a skid sliding sideways up the driveway. The physics of the situation do not support such a contention.

[73] With respect to Allegation 3.2, having considered all of the evidence, I find that Mr Blackey returned to his car after he had told Mr Meaney that he needed to report him and Mr Meaney had reacted in an angry and upset way. It was Mr Blackey’s evidence that, as he was walking back to his vehicle, it was likely that he had told Mr Meaney to grow up. Therefore, on the balance of probability, it is probable that, whilst walking back to his vehicle, Mr Blackey told Mr Meaney to grow up.

[74] I also find that Mr Meaney followed Mr Blackey back to his car. Mr Meaney’s evidence is accepted that he had his meal in his hand and his work bag, having earlier taken his meal from his car.

[75] In terms of Allegation 3.3, it was conceded by Mr Blackey that he did not fear for his physical safety. It was undisputed that Mr Meaney had stood directly in front of Mr Blackey when Mr Blackey had returned to his vehicle. The difference between the two accounts was as to how close Mr Meaney stood to Mr Blackey and whether or not Mr Meaney gesticulated aggressively towards Mr Blackey. On the balance of probability, it is probable that Mr Meaney stood quite close to Mr Blackey and that he spoke aggressively and loudly to Mr Blackey. Given that Mr Meaney was carrying his meal and his work bag, on the balance of probability, it may not have been possible for Mr Meaney to have gesticulated aggressively as he may have been physically constrained by his belongings.

[76] It is clear from the evidence, though, that Mr Meaney was angry and that he spoke loudly and aggressively to Mr Blackey. Mr Blackey’s evidence is accepted that he was wary that there may have been some physicality because of the expression on Mr Meaney’s face and his anger.

(f) Allegation 4 – kill someone comment on 26 October 2017

[77] It was alleged by Monash University that Mr Meaney said to Mr Wlodarcyzk words to the effect of “I feel like I am being victimised. I might have to kill someone”. 228

Mr Meaney

[78] It was Mr Meaney’s evidence that:

•  He said to Mr Wlodarcyzk that he felt that he was being victimised and that he might have to kill someone. 229

•  He was kind of clowning around when he said those words to Mr Wlodarcyzk. 230

•  He disagreed that in his response to the allegations, he had indicated that he wasn’t being serious when he said those words. 231

•  This was because he had made plans to kill himself that morning but he didn’t go through with it because the situation’s changed. 232

•  He confirmed that he had referred to Mr Wlodarcyzk as the office clown with a watch fetish and other European traits. This was said to have been because Mr Wlodarcyzk was the office clown who mucked around and made annoying noises. 233

•  There was a bit of office banter going on between himself and Mr Wlodarcyzk and a couple of other people and they made jokes of Mr Wlodarcyzk. 234

Mr Wlodarcyzk

[79] Mr Meaney did not seek to cross-examine Mr Wlodarcyzk. Mr Wlodarcyzk had filed a witness statement. 235 In his witness statement, Mr Wlodarcyzk gave evidence in relation to the incident on 26 October 2017 that:

•  He heard loud screeching tyre sounds when he was at his desk. 236

•  After a few minutes, he walked out of the building and went to the car park where he could smell burning rubber. 237

•  He met Mr Blackey taking photos of a red car and had a brief conversation with him. 238

•  He then walked to the fire control room and saw Mr Meaney, who seemed flustered and stressed, trying to jimmy the gate open. Mr Meaney had said that he had misplaced his security past and so had to break in. 239

•  He asked Mr Meaney how he was and Mr Meaney replied that he had had a disagreement with the security guy who didn’t like his driving. Mr Meaney said that he was trying to find out his name. 240

•  Mr Meaney had then said “You know what, I feel like I am being victimised, might have to kill someone”. 241

•  He had responded that that was probably not a good idea. 242

•  Mr Meaney did not appear to be joking and was very serious and not smiling. He (Mr Wlodarcyzk) felt very anxious and uncomfortable. 243

•  He was very troubled by Mr Meaney’s behaviour but did not want to get Mr Meaney into trouble. He slept on it and the following morning decided to report the conversation and did so to Mr Foulds. 244

Mr Meaney’s submissions

[80] Mr Meaney stated that he came to work that night suffering from a chronic mental illness and had been subjected to threats from a person in the car park and so was highly anxious and fragile. 245 It was explained that Mr Wlodarcyzk had surprised him by appearing whilst he was unlatching the gate. Mr Meaney argued that he had then made a throwaway comment to Mr Wlodarcyzk.246

[81] It was acknowledged by Mr Meaney that it was a silly thing to say but that he had trusted Mr Wlodarcyzk as a colleague and did not expect him to report the silly comment. Mr Meaney explained that there were no serious thoughts of harming anyone except perhaps himself. It was said that he was pretty close and had made a time to end his life but that circumstances changed and he decided to delay those plans. 247

Monash University’s submissions

[82] It was submitted by Monash University that, as Mr Meaney confirmed during the hearing that he had said those words to Mr Wlodarcyzk, the Commission can be satisfied that the conduct as alleged had occurred. 248

[83] Monash University noted that, although Mr Meaney did not specifically deny making the comment in his response to the investigation, Mr Meaney was said to have sought to discredit Mr Wlodarcyzk by making disparaging personal comments about him. 249

Conclusions and considerations

[84] Mr Meaney gave evidence that he had made the comment, as alleged, to Mr Wlodarcyzk. Therefore, I find that Mr Meaney said to Mr Wlodarcyzk “You know what, I feel like I am being victimised, might have to kill someone”.

Was there a valid reason for the dismissal?

Mr Meaney’s submissions

[85] Mr Meaney submitted that, prior to 2016, there were no issues with his performance and that he had respected management. However, that was said to have changed after the University made him feel that his contributions were worthless and he lost self respect. Mr Meaney contended that management had treated him badly in terms of how they said the things they did in relation to the various incidents. It was stated that management were against him and had sought to destroy his mind by doing things in an unkind way. Mr Meaney also said that Monash had caused him massive amounts of stress which had resulted in him behaving out of character and were said to have pushed him to the point of insanity. 250

[86] Further, Mr Meaney argued that his summary dismissal was illegal due to his pending WorkCover dispute. 251 It was also contended by Mr Meaney that his summary dismissal was harsh, unjust and unreasonable as management’s alleged reasonable actions (bullying, micromanagement and favouritism) had caused him to become unwell.252 Mr Meaney stated that he had never received a warning in his 35 years in the workforce. It was submitted that management had broken him down mentally and would not accept that mental illness was related to unusual behaviours.253

Monash University’s submissions

[87] Together with these submissions in relation to each of the allegations, the University submitted that there was clearly a valid reason for Mr Meaney’s dismissal based on his conduct identified in the investigation. It was argued that the misconduct by Mr Meaney had, in fact, occurred, resulting in there being a valid reason for the dismissal. 254 Further, the University stated that, over the course of two years, Mr Meaney’s conduct and performance with the subject of complaints from multiple sources. It was explained that the University had attempted to improve Mr Meaney’s performance and conduct through a Performance Improvement Plan (PIP).255

[88] The University submitted that Mr Meaney’s behaviour demonstrated that he was unwilling to follow the lawful and reasonable directions of his supervisor; he had failed to show respect or dignity to his managers and colleagues; he had used threatening conduct to Mr Blackey with a propensity to engage in threatening violent behaviour when his behaviour was questioned. 256 Further, it was argued by Monash that, as Mr Meaney had exhibited little or no contrition or insight into his conduct, this was evidence of the wilful nature of the breaches he had committed.257 Accordingly, it was contended that Mr Meaney’s conduct clearly breached the required standards of conduct set out in his contract of employment and the University’s policies and procedures.258

[89] In addition, Monash contended that the dishonest answers given by Mr Meaney in the internal investigation may be a valid reason for the dismissal itself where the relationship of trust and confidence between the employer and the employee is destroyed. Further, it was argued that Mr Meaney’s dishonest answers could be a valid reason in conjunction with misconduct and relevant to whether the dismissal was harsh, unjust or unreasonable and in relation to penalty. 259

Considerations and conclusions

[90] It is appropriate, at this point, to summarise the findings of fact that have been made in relation to the allegations.

Second set of allegations

Allegation 1.1

•  That Mr Meaney said, on 27 July 2017 to his manager, Mr Barrett, “You’re not even a manager’s arsehole and you owe Adam an apology”.

•  That, prior to this comment by Mr Meaney, Mr Meaney had said words to Mr Barrett to the effect “What do I use them (danger tags) for?”.

•  That Mr Barrett had responded with words to the effect of “if you (Mr Meaney) didn’t know what to do with them, you (Mr Meaney) were in the wrong job”.

Allegation 1.4

•  That, during the ESO meeting on 25 August 2017, Mr Meaney had talked loudly and angrily at Ms Haddad; had asked Ms Haddad the same question four times, and, on the balance of probability, aggressively.

Allegation 1.5

•  That, on 3 October 2017, Mr Meaney sent an email to Mr Foulds and Ms Haddad in which he described Mr Barrett, without naming him directly, as a “filthy little grub”; “the disgusting little creep” and “this unqualified jerk”.

Allegation 1.6

•  That, included in an ESO log entry dated 5 October 2017, Mr Meaney wrote “Attended to meet Simon Harris to discuss why Barrett is not fit to manage human staff”.

First set of allegations

Allegation 2

•  That, on 26 October 2017, Mr Meaney drove his car up a driveway on campus, sliding sideways with the rear wheels spinning in a bit of a skid.

•  It is probable that the tyres were making a screeching sound.

Allegation 3.1

•  That, after Mr Blackey had challenged Mr Meaney about his driving, Mr Meaney said to Mr Blackey “Well, you may as well get in your car and fuck off”.

•  That, on his way to work, there was an incident with a car braking sharply in front of Mr Meaney which caused Mr Meaney’s dinner to move off the front passenger seat and into the foot well.

Allegation 3.2

•  That Mr Blackey moved back to his car with Mr Meaney following.

•  That, on the balance of probability, whilst Mr Blackey was walking back to his car, Mr Blackey had told Mr Meaney to grow up.

•  That Mr Meaney was angry and upset.

Allegation 3.3

•  That Mr Meaney stood directly in front of Mr Blackey and, on the balance of probability, it is probable that he stood quite close to Mr Blackey.

•  That Mr Meaney was angry and he spoke loudly and aggressively to Mr Blackey.

•  That Mr Blackey was wary that there may have been some physicality because of the expression on Mr Meaney’s face and his anger.

Allegation 4

•  That Mr Meaney said to Mr Wlodarcyzk “I feel like I am being victimised, might have to kill someone”.

Considerations

Allegations 1.1, 1.4, 1.5 and 1.6

[91] It was contended by the University that Allegations 1.1, 1.4, 1.5 and 1.6 amounted to “a course of aggressive, abusive and threatening conduct in the workplace that has intimidated staff and made them fearful in the workplace”. The incidents on which the University relied, in relation to establishing the course of conduct, commenced on 27 July 2017 and the last one was on 3 October 2017.

[92] With respect to the first Allegation (1.1), the comment by Mr Meaney, that Mr Barrett was not “even a manager’s arsehole” needs to be considered within the whole of the conversation. The evidence of Mr Meaney and Mr Barrett aligned in terms of the content of their conversation on 26 July 2017. The conversation began when Mr Meaney asked Mr Barrett, obtusely, as to what he was to use them (the danger tags) for. Mr Barrett had responded that, if Mr Meaney didn’t know by now, Mr Meaney was in the wrong job. This response then prompted Mr Meaney to make the comment about Mr Barrett’s managerial skills. It was acknowledged by Mr Barrett that the working relationship between himself and Mr Meaney was not made in heaven.

[93] It is my view that neither Mr Barrett nor Mr Meaney should have made the comments that they each did during this conversation. Mr Barrett was Mr Meaney’s manager and so was in a more senior position to Mr Meaney. As Mr Meaney’s manager, Mr Barrett had a responsibility to treat Mr Meaney with respect and it would surely not be the preferred approach that a manager responded in kind to disrespectful comments from a subordinate.

[94] With respect to Allegation 1.4 (ESO meeting on 25 August 2017), in addition to alleging that Mr Meaney had acted inappropriately, the University contended that Mr Meaney’s behaviour was “aggressive, unprofessional and unreasonable”. It is clear from the evidence that Mr Meaney acted inappropriately and unprofessionally towards Ms Haddad at the meeting. It would appear that Mr Meaney spoke very loudly and it is probable, angrily/aggressively, towards Ms Haddad during the meeting. It is also apparent that Mr Meaney realised this after the event, hence his email to Mr Brundell about his behaviour during the meeting.

[95] With regard to the Allegation 1.5 (email of 3 October 2017 to Mr Foulds and Ms Haddad), it is a matter of fact that Mr Meaney sent that email. In terms of its content, the three phrases that Mr Meaney wrote which referred to Mr Barrett, were disparaging comments which were belittling, demeaning, insulting and very personal criticisms of his manager. This was a highly inappropriate and unprofessional email.

[96] Allegation 1.6 concerned the ESO log entry that Mr Meaney made on 5 October 2017 in which it was alleged by the University that Mr Meaney wrote an inappropriate comment about Mr Barrett. It is a matter of fact that Mr Meaney included that comment in the log entry. It was also common ground that personal comments were not to be written in the ESO log. I concur with the University’s contention that the personal comment about Mr Barrett was an inappropriate comment.

[97] Mr Meaney also gave evidence that he had not spoken in derogatory terms to Dr Harris about Mr Barratt’s management ability, despite having written in the log that he had. That may well have been the case but it was not the message that the log entry conveyed. An employee writing such a log entry about their supervisor was inappropriate and uncalled for.

Allegations 2, 3 and 4

[98] With respect to Allegation 2, the Commission has found that Mr Meaney drove his car with it sliding sideways with the rear wheels spinning in a bit of a skid with the tyres probably making a screeching sound. However, I have not been persuaded that Mr Meaney drove his car dangerously or erratically. I accept Mr Meaney’s evidence that it was a controlled slide and that he had control of the car at all times as he was going up the driveway. This is not to say that Mr Meaney should not have driven his car in that manner on a university campus. It was an unwise and stupid thing for Mr Meaney to have done.

[99] In terms of Allegation 3, it was contended by the University that Mr Meaney, by behaving as set out in the allegations 3.1 to 3.3, had behaved in an abusive and threatening manner. Findings of fact have been made in relation to each of the allegations 3.1 to 3.3. It is clear that, during the exchange between Mr Meaney and Mr Blackey, Mr Meaney was angry and upset and acted aggressively towards Mr Blackey.

[100] However, I have not been persuaded that Mr Meaney’s behaviour can be reasonably described as both “abusive and threatening”. Mr Meaney’s conduct was that of an angry and upset person who reacted aggressively, confrontationally and disproportionately to being challenged about his driving; to being told, in effect, that he was too old to be driving like that and that he should grow up. This followed Mr Meaney getting upset as the result of an incident with another car on his way to work which had resulted in his dinner landing in the front passenger foot well.

[101] I am satisfied that Mr Meaney was, to some degree, abusive, in his comments to Mr Blackey and was highly unprofessional. However, I am not satisfied that Mr Meaney was threatening towards Mr Blackey. I have accepted Mr Blackey’s evidence that he was wary that there might be some physicality due to Mr Meaney’s expression and anger. It is clear that Mr Meaney was very angry and very aggressive towards Mr Blackey and was clearly wound up but I am unable to characterise Mr Meaney’s behaviour as threatening.

[102] With regard to the final allegation (Allegation 4) it is a fact that Mr Meaney said the words as alleged to Mr Wlodarcyzk and it was a highly inappropriate to make. The comment by Mr Meaney needs to be seen in context. It was allegedly serious enough to be considered by the University as serious misconduct. However, it was not viewed as serious enough to be reported immediately. Mr Wlodarcyzk did not report the incident to management until the next morning.

Conclusion

[103] Monash University alleged that Allegations 1.1, 1.4, 1.5 and 1.6 amounted to “a course of aggressive, abusive and threatening conduct in the workplace that has intimidated staff and made them fearful in the workplace”. On the basis of the findings set out above, I have not been persuaded that these incidents constituted “a course of aggressive, abusive and threatening conduct”. Mr Meaney’s behaviour can fairly be described as aggressive (allegation 1.4) and inappropriate and unprofessional in relation to allegations 1.1 and 1.6. With respect to Allegation 1.5, Mr Meaney’s conduct in relation to the email was demeaning and insulting and unprofessional in his comments about Mr Barratt. However, it is my view that Mr Meaney’s conduct does not rise to the level of “aggressive, abusive and threatening”.

[104] Further, it was alleged by the University that Mr Meaney’s conduct, in relation to this allegation, “intimidated staff and made them fearful in the workplace”. There is no evidence before the Commission which supports this contention.

[105] Therefore, the Commission is not satisfied, in relation to Allegation 1 that, Mr Meaney had engaged in “a course of aggressive, abusive and threatening conduct in the workplace that has intimidated staff and made them fearful in the workplace”. However, the Commission is satisfied that Mr Meaney’s conduct was aggressive towards Ms Haddad during the meeting on 25 August 2017; was unprofessional and inappropriate and, in the email of 3 October 2017, was demeaning, belittling and insulting in his comments about Mr Barratt.

[106] With respect to Allegations 2 and 3, I have found that Mr Meaney drove his car in an unwise and inappropriate manner up the driveway. I have also found that Mr Meaney was very angry and aggressive, and to some degree abusive, towards Mr Blackey and that his reaction to Mr Blackey was distinctly out of proportion.

[107] Taking all of this into account, I find that there was a valid reason for Mr Meaney’s dismissal. This is primarily because of the nature of Mr Meaney’s conduct during his interaction with Mr Blackey (aggressive, angry, to some degree abusive and disproportionate) together with his unprofessional, angry and inappropriate behaviour including aggressive conduct towards Ms Haddad and an email which contained demeaning, belittling and insulting comments about his manager.

Section 387(b) - notified of the reason

[108] The evidence before the Commission shows that Mr Meaney was advised of the allegations regarding the incident on 26 October 2017 (Allegations 2 – 4), together with his suspension, by email dated 27 October 2017, which was forwarded to Mr Meaney by letter dated 30 October 2017. 260 A second letter of allegations was written to Mr Meaney on 7 November 2017 concerning Allegations 1.1 to 1.6. This latter group of allegations was described as principally being that Mr Meaney had engaged in “a course of aggressive, abusive and threatening conduct in the workplace that has intimidated staff and made them fearful in the workplace”.

[109] Mr Meaney was advised in a letter dated 20 December 2017 that his employment was terminated with immediate effect (summary dismissal). 261

Section 387(c) - opportunity to respond

[110] On the basis of the material before the Commission, I find that Mr Meaney was given an opportunity to respond to both sets of allegations. Mr Meaney provided an extensive written response to the investigation on 20 November 2017.

Section 387(d) - unreasonable refusal to have a support person

[111] It does not appear that Mr Meaney requested to have a support person. Therefore, I find that there was no unreasonable refusal by Monash University for Mr Meaney to have a support person.

Section 387(e) - previous warnings regarding unsatisfactory performance

[112] As Mr Meaney was dismissed for reasons relating to his conduct, this criteria is not relevant in this matter.

Section 387(f) and (g) - size of the employer and specialist human resources

[113] It was accepted by the University that it is a large enterprise with dedicated HR specialists and expertise. Therefore, the size of its enterprise would not have impacted upon the procedures followed in effecting the dismissal and there was no absence of HR expertise or specialists.

Section 387(h) - any other matters

Mr Meaney’s submissions

[114] It was submitted by Mr Meaney that Monash University had failed to provide a safe working environment for him due to bullying by Mr Foulds. 262 Mr Meaney contended that, in January 2016, Mr Foulds and Ms Haddad had treated him differently by devaluing his thoughts and ideas and indicating they did not have any merit. It was stated that this was micromanagement as well as being treated as inferior with emails to managers requesting information ignored; information passed not on and exclusion and discrimination.

[115] It was stated that, in July 2016, he had met with Mr Brundell and Ms Bird and asked for assistance with the bullying. It was recounted that he was advised that the bullying was addressed and managed at the time. Further, Mr Meaney explained that, on 16 October 2017, he had submitted an incident report for harassment. 263

Mental health issues

[116] Mr Meaney indicated that, lacking management’s approval and the extra duties that he was required to do, resulted in him becoming unwell as he was having panic attacks and suffering from the pain and exhaustion of a severe anxiety disorder. It was stated that his doctor prescribed him medication and he was able to return to normal duties. 264

[117] Further, Mr Meaney stated that, in July 2016, Ms Bird was informed that he had developed an anxiety disorder caused by stress. In addition, when he was interviewed by Ms Wells and Mr Reddy, on 16 October 2017 in relation to the incident report regarding harassment, he had advised them that he was suffering from stress, anxiety and panic attacks. It was recalled that he informed Ms Wells and Mr Reddy that he had been prescribed medication to help relieve his condition. 265 Mr Meaney argued that, with this knowledge, the University had failed in their duty of care by allowing managers to cause him to become mentally ill. It was said that his role models had acted unethically with swearing and poor conduct and had created an environment that was a completely dysfunctional workplace, where discipline was reactive when it suited them but that generally anything goes.266

[118] Mr Meaney explained that he first went to his doctor when he was affected by depression, tightness of the chest, palpitations, tiredness and a feeling of being unwell including suicidal to end the pain and fear. It was stated that his doctor provided treatment and told him that he was depressed. It was recalled that he attended counselling but that did not provide him with what he needed to improve his condition so his doctor prescribed stronger medication and suggested that he make a WorkCover claim. Mr Meaney explained that he took the medication but dismissed the need to claim an illness through WorkCover. 267

[119] It was recounted by Mr Meaney that his symptoms became severe with panic attacks, a feeling of failure and ending his life to relieve the pain and the constant stress which left him so tired that he was unable to stay awake all day. Mr Meaney said that he struggled to function in his day-to-day duties and his stress levels were pushing his limits. He explained that his doctor gave him time off work and insisted that he make a WorkCover claim. His doctor had prescribed additional medication to overcome the suicidal thoughts that were caused by fear and the pain of depression. 268

[120] Mr Meaney stated that, at the time he met with Dr Das he was not very well and that, looking back, he would describe the event as a complete mental breakdown. It was indicated that the psychiatrist treating him in hospital diagnosed his condition as “acute major depressive disorder with anxiety and trauma”. 269

Monash University’s submissions

[121] The University contended that there were a number of other matters which were relevant. The first one was that Mr Meaney’s responses to the investigation were described as dishonest and/or lacking in candour. 270

Mental health issues

[122] It was stated that the University had taken into account, as a mitigating factor, that Mr Meaney had said that he was suffering mental health issues. 271 The University argued that Mr Meaney had not provided any evidence that his adjustment disorder with anxiety was linked to, or causative of, his misconduct. It was stated that the behaviour raised in the two sets of allegations did not appear to have been raised by Mr Meaney with Dr Das. Although Dr Das’ report referred to the ESO meeting, the email following the alarm/Dr Harris incident and the ESO log, it was contended that the report did not state that Mr Meaney felt anxious at these times nor that Mr Meaney reported to Dr Das that he was anxious at those times.272

[123] It was submitted that it was evident from Mr Meaney’s evidence that he behaved the way he did because he felt entitled to. This was said to have been because he did not respect or was frustrated with his managers; he was unhappy with his workplace and/or did not like having his behaviour queried. 273

[124] Accordingly, the University contended that there was no basis for the Commission to accept that Mr Meaney’s diagnosis was causative of, or contributed to, his misconduct. 274 Further, it was submitted by the University that Mr Meaney’s diagnosis was not of such moment and effect that it could result in his dismissal being harsh, unjust or unreasonable. This was said to be particularly so given Mr Meaney’s extremely malicious conduct towards Mr Barrett; Mr Meaney’s unprovoked aggression towards Mr Barrett; his unsafe driving on campus and Mr Meaney’s continued view that his behaviour was justified or not serious.275

[125] Having considered the submissions of the parties, I have formed the view that Mr Meaney’s mental health issues are a relevant matter in considering whether the dismissal was harsh, unjust or unreasonable. Dr Das, in November 2017, in the context of Mr Meaney’s WorkCover claim, provided a psychiatric assessment of Mr Meaney and diagnosed Mr Meaney with an adjustment disorder with anxiety. In his report, Dr Das observed that Mr Meaney had “a history of similar reactive state”, when Mr Meaney was prescribed with anti-depressants for eight months, which recommenced in January 2016. Dr Das noted that Mr Meaney had been prescribed his current daily anti-depressant medication for the past two years. 276

[126] It is apparent that, around July 2016, Mr Meany advised Ms Bird and Mr Max that he suffered from anxiety. The University (Agnes) made contact with Mr Meaney on 5 July 2016 who was not receptive to the call. It was established, though, that Mr Meaney was under the care of a doctor and was seeing a psychologist fortnightly. 277 From the documentation that was provided by Mr Hocking (from Ms Bird) to the Commission, Mr Hocking appears to have believed, in August 2016, that Mr Meaney should provide a medical clearance. This was because Mr Hocking had concerns with continuing with a PIP when Mr Meaney “has disclosed to three HR staff that he suffers from a mental illness.”278 Subsequently, Mr Meaney was twice requested to provide a medical clearance and it seems from the documentation that Mr Meaney’s view was that it was not necessary.

[127] The notes provided to Mr Hocking recorded that Mr Meaney had requested a meeting with Mr Brundell as he felt that “no one is considerate of his mental health issues”. 279 The notes also indicated that, during the meeting between Mr Meaney and Mr Brundell and Ms Bird, Ms Bird asked Mr Meaney to expand on his email where he said that he was under “mental stress and none of my managers are understanding my problem”. It was recorded that Mr Meaney would not expand on any mental health concerns.280 It is noted that the comments about Mr Meaney’s mental health issues were in the context of the PIP and concerns about Mr Meaney’s behaviour (and performance).281

[128] It was Mr Hocking’s evidence that he had conversations with Mr Van Riet about Mr Meaney’s disclosure that he suffered from anxiety. However, Mr Hocking stated that he had no material before him (medical certificate or declaration) that told him that Mr Meaney was suffering any particular medical health condition. It was explained that there were references to anxiety but there was nothing of any substance even though, in conversations with Mr Van Riet, Mr Meaney had an opportunity to provide that documentation. As none was forthcoming from Mr Meaney, Mr Hocking indicated that that matter had gone nowhere. The three staff members who Mr Meaney had told in confidence that he suffered from a mental illness, were said to have not been at liberty to say anything further about it therefore, despite hints that there may have been a problem, there was nothing he could act on. Mr Hocking indicated that he did take this into account but did not think that it explained the incident on 26 October 2017. 282

[129] Mr Hocking explained that the University utilised a performance improvement programme, prior to formal disciplinary proceedings, in order to deal in a positive manner with unsatisfactory work performance or behaviour. It was stated that Mr Meaney had been on the radar concerning workplace behaviours and the University believed that the appropriate actions were being taken by the University short of formal disciplinary action. Further, it was stated that the usual University’s program regarding intervention when it believes that there may be mental health issues was activated by Mr Van Riet but the attempted early intervention in terms of support didn’t get anywhere because there had been no formal declaration by Mr Meaney. 283

[130] Mr Hocking explained that, as he did not have a medical certificate in front of him saying that Mr Meaney was suffering a mental illness that was treatable (nothing formal), he could not make a diagnosis as he was not a clinical psychologist. It was stated that he could only rely on what had been provided to him and he was not provided with anything formal. 284

[131] The evidence shows that Monash University was advised by Mr Meaney that he had mental health issues (anxiety) from around July 2016. Three months later, Monash requested a medical clearance from Mr Meaney that he was fit to work in relation to concerns about his behaviour. This was not forthcoming from Mr Meaney. In August of the following year (2017), Mr Meaney requested a meeting with Mr Brundell as he felt that no one was being considerate of his mental health issues.

[132] Mr Meaney represented himself at the hearing. As an unrepresented Applicant, the only medical evidence that Mr Meaney provided was the report from Dr Das. There is, therefore, no medical evidence before the Commission which provides a direct causal link between Mr Meaney’s behaviour at work and his mental health issues. However, there is sufficient material, including Dr Das’ report, to provide the basis for the view that Mr Meaney’s mental health is a relevant factor under section 397(h) of the Act.

Delay

[133] The University conceded that there was a delay in Allegations 1.1 to 1.6 being formally dealt with. It was stated that the delay was short with the earliest allegation being July 2017 and Mr Meaney been suspended in October 2017. Monash contended that there was no prejudice to Mr Meaney as a result of the delay and nothing which would render the dismissal harsh, unjust or unreasonable. 285

[134] With respect to the delay in the University dealing with Allegations 1.1 to 1.6, it would seem that, at the time they occurred, management did not consider them to be serious enough to warrant dealing with them at the time through the disciplinary process. However, after the incident on 26 October 2017, the University appeared to have taken a different view of the weight of these incidents. This is because they were put to Mr Meaney as allegations and were included in the letter of allegations and they ultimately founded, in part, Mr Meaney’s dismissal.

[135] Therefore, in this context, the delay in dealing with Allegations 1.1 to 1.6 is a relevant consideration in this matter.

Gravity of the conduct and proportionality of response

[136] It was submitted by the University that the nature of Mr Meaney’s conduct was wilful and deliberate (serious misconduct) with no established mitigating factors. Monash stated that Mr Meaney’s conduct was in breach of the Universities policies and procedure and Mr Meaney’s contract of employment. It was contended that Mr Meaney’s behaviour was inconsistent with his ongoing employment with the University and that serious misconduct had been made out on the facts. 286

[137] Therefore, it was said that the Commission could be satisfied that the conduct was sufficiently grave so as to make Mr Meaney’s summary dismissal justified and proportionate response. 287

Considerations and conclusions

[138] I consider that the relevant other matters, in this case, are Mr Meaney’s mental health issues and the delay in Allegations 1.1 to 1.6 being formally dealt with.

Was the dismissal harsh, unjust or unreasonable?

[139] Having taken account of all of the factors set out in section 387 of the Act, I find, on fine balance, that the dismissal was harsh. On the one hand,there was a valid reason for Mr Meaney’s dismissal due to his angry, aggressive and to some extent, abusive, exchange with Mr Blackey and previous incidents of unprofessional, inappropriate, aggressive behaviour towards Ms Haddad and belittling and demeaning comments about his manager in an email. In addition, the disciplinary process which was followed by the University in dismissing Mr Meaney, was fair.

[140] On the other hand, the switch by the University, from utilising a PIP process to using the disciplinary process to address Mr Meaney’s workplace behaviours, was without warning to Mr Meaney. The incidents that made up the first allegation took place between July 2017 and 5 October 2017. It was contended by the University that they constituted “a course of aggressive, abusive and threatening conduct in the workplace that has intimidated staff and made them fearful in the workplace”. Prior to the letter of allegations of serious misconduct on 7 November 2017, the University’s difficulties with Mr Meaney’s conduct were being dealt with through a PIP. These incidents do not appear to have been addressed through any process at the time they occurred but were subsequently brought to Mr Meaney’s attention, not through the PIP process, but as allegations of serious misconduct. Mr Meaney does not seem to have been provided with an explanation as to why the University, after not having addressed these issues, departed from the PIP process and embarked on a disciplinary process involving allegations of serious misconduct in order to deal with them.

[141] It is my view that this course of action by the University, without explanation, contributed to the harshness of the dismissal. This is on the basis that the University had not previously activated the disciplinary process, Mr Meaney had not been given any formal written warnings about his behaviour nor was Mr Meaney advised that the University was going to commence dealing with his behavioural issues utilising the disciplinary process, rather than the PIP process.

[142] Secondly, it is apparent that the University was told in around July 2016 by Mr Meaney that he had anxiety. In August 2016, it seems that the University was so concerned about Mr Meaney’s behaviour that they contacted him on 5 August 2016 to get information about his mental health. Twice in September 2016, the University asked Mr Meaney to provide a medical clearance that he was fit for work. The following year, after the ESO meeting incident on 25 August 2017, Mr Meaney told Mr Brundell and Ms Bird, during a meeting on 1 September 2017, that he was under mental stress. It was Mr Foulds’ evidence that around July 2016, Mr Brundell had advised him that HR had told him that Mr Meaney was not well but did not provide any detail.

[143] It would therefore seem to be harsh for the University to utilise the disciplinary outcome of dismissal in circumstances where it had been aware from July 2016 that Mr Meaney had mental health issues. Dr Das’ report appears to corroborate what Mr Meaney said to the University when he disclosed that he had mental health issues in July 2016, August 2016 and August/September 2017. It is acknowledged that Mr Meaney declined, in September 2016, to provide, in essence, formal documentation to support what he had been telling the University about his mental health. However, when the issue of Mr Meaney’s mental health was raised again by Mr Meaney with the University in August/September 2017, Mr Meaney does not appear to have been asked to provide a doctor’s report or other formal advice regarding his mental health. This is despite Mr Meaney’s behaviour in 2017 being seemingly consistent with his 2016 conduct.

[144] It is not being said that Mr Meaney was a model employee as Mr Meaney’s conduct has been found to have been a valid reason for his dismissal. However, the University was made aware by Mr Meaney that he had mental health issues starting in July 2016. Therefore, in balancing the reason for the dismissal, together with the University’s knowledge that Mr Meaney had mental health issues, which is supported by Dr Das’ report, this contributes to a finding that, on fine balance, the dismissal was harsh in all of the circumstances.

[145] As the Commission has found, on fine balance, that the dismissal was harsh, the Commission is required to consider the question of remedy.

Remedy

[146] Section 390 of the Act sets out when the Fair Work Commission may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:

“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.”

[147] With respect to the requirements of section 390, I am satisfied that Mr Meaney was protected from unfair dismissal at the time of his dismissal (section 390(1)(a)) and that he has been unfairly dismissed (section 390(1)(b)). Further, Mr Meaney has made an application under section 394 of the Act (section 390(2)).

[148] Section 390(3) states that the Commission must not order the payment of compensation unless two conditions have been met. The first condition is that the Commission is satisfied that reinstatement is inappropriate (section 390(3)(a)).

[149] Mr Meaney is seeking reinstatement to an equal position doing work in another department that is relevant to his job description with backpay for the relevant period. 288

[150] Monash University submitted that reinstatement would not be appropriate on a number of grounds. These were that the Commission could not be confident that Mr Meaney would follow the lawful and reasonable directions from management and act ethically, respectfully and non-aggressively. Further, it was stated that the relationship of trust and confidence has irretrievably broken down due to Mr Meaney’s dishonesty and lack of candour in the Hocking investigation. The University contended that returning Mr Meaney to work would have a negative effect on the working environment and morale and would create an unacceptable risk to the University. 289

[151] Taking into account all of the circumstances of this matter, I am satisfied that it would be inappropriate to reinstate Mr Meaney. It is acknowledged that Mr Meaney was very clear that reinstatement would enable him to return to work on a gradual basis as part of a rehabilitation plan. If that was not possible, it was contended by Mr Meaney that he may never be able to return to work. 290 However, it is accepted that, from Monash’s perspective, the relationship between the University and Mr Meaney has irretrievably broken down as a result of Mr Meaney’s behaviour in the workplace and there being no confidence that, in effect, Mr Meaney would behave differently if he was reinstated.

Compensation

[152] Section 390(3)(b) requires that the Fair Work Commission consider it appropriate, in all of the circumstances of the case, to order compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation is considered appropriate.

[153] Section 392(2) of the Act sets out the criteria for deciding the amount of compensation in all of the circumstances of the case. These criteria are:

“(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.”

[154] I will deal with each of the criteria in turn, guided by the Full Bench decision in Haigh v Bradken Resources Pty Ltd  291 (Haigh). In Haigh, the Full Bench also referred292 to the Full Bench decisions which have applied the approach in Sprigg v Paul Licensed Festival Supermarket293 (Sprigg). I respectfully adopt the approach taken in Haigh.

Section 392(2)(a) - effect on the viability of the employer’s enterprise

[155] It is not considered that an order for payment of compensation would have an adverse affect on the viability of Monash University.

Section 392(2)(b) - Applicant’s length of service

[156] Mr Meaney commenced employment with Monash University on 7 July 2014 and was summarily dismissed on 20 December 2017. Therefore, Mr Meaney was employed by the University for just under three and a half years.

Section 392(2)(c) - remuneration would have received

[157] On the basis of the evidence before me, in all of the circumstances of this matter, I have formed the view that, if Mr Meaney had not been dismissed, he would have continued in employment for a period of six months. For the purposes of the calculations, in accordance with the Sprigg principles, it is determined that the remuneration that Mr Meaney would have received was six months pay.

[158] At the time of his dismissal, Mr Meaney was earning $2,162.00 gross per week. Therefore, the amount Mr Meaney would have received for the six month period of anticipated employment is $56,212.00 (gross).

Section 392(2)(d) - efforts to mitigate loss

[159] There does not appear to be any concrete evidence before the Commission concerning the steps that Mr Meaney has taken to mitigate his loss. The situation is complicated by Mr Meaney’s WorkCover claim. In his Submissions in Reply, Mr Meaney stated that he was currently unable to work and that he did not have any prospects of work given the problems he has. 294

[160] Mr Meaney is requested to provide documentation in relation to whether or not he is medically able to look for other work. If it is the case that Mr Meaney is able to look for other work, Mr Meaney is requested to provide documentary evidence of his attempts to find alternative work.

Section 392(2)(e) and (f) - remuneration earned and income reasonably likely to be earned

[161] The period of anticipated employment is from 21 December 2017 to 20 June 2018. The Commission is unable to address this section as it is currently unknown as to whether Mr Meaney is able/has found alternative work. If alternative work has been found, Mr Meaney is to provide payslip evidence of any monies earned in this regard.

Section 392(2)(g) - other matters

[162] There were no submissions made in relation to this section.

Section 392(3) - misconduct

[163] As Mr Meaney was dismissed for serious misconduct, the amount of compensation that would otherwise be ordered will be reduced by 50%.

Contingencies and taxation

[164] As the period of anticipated employment has passed, it is not proposed to make a deduction for contingencies.

Section 392(4) - shock or distress

[165] No part of the provisional compensation amount relates to any shock or distress suffered by Mr Meaney.

Section 393 - payment by instalments

[166] There was no request by the University to pay in instalments.

[167] Mr Meaney is to provide the information requested in paragraphs [160] and [161] above to the Commission and the Respondent by close of business on Wednesday 24 October 2018. Once this information is to hand, it will be possible to finalise determination of the amount of compensation in lieu of reinstatement.

[168] A further decision and an order, in regard to compensation, will be issued within two weeks of receipt of the requested information.

Appearances:

M Meaney on his own behalf

R Sweet of Counsel for the Respondent

Hearing details:

2018.

Melbourne:

May 10, 11.

Final written submissions:

Applicant, 5 June 2018

Respondent, 20 June 2018

Applicant, 25 June 2018

Printed by authority of the Commonwealth Government Printer

<PR700405>

 1   Exhibit R6 at Attachment LH10

 2   Ibid

 3   Respondent’s Closing Submissions, dated 20 June 2018, at paragraph 34 and Transcript PN 220

 4   Exhibit R6 at Attachment LH10

 5   Transcript PN 355 – 356 and 364

 6   Ibid PN 363 and 365

 7   Ibid PN 357

 8   Ibid PN 362 and 366 – 367

 9   Ibid PN 368

 10   Ibid PN 397 – 398 and 416 – 417

 11   Ibid PN 409

 12   Ibid PN 409 – 415

 13   Ibid PN 418 – 421

 14   Ibid PN 369 – 373

 15   Ibid PN 374 – 375

 16   Ibid PN 378 – 381

 17   Ibid PN 382

 18   Ibid PN 396, 429 and 438

 19   Ibid PN 427 – 428 and 438

 20   Exhibit R4

 21   Ibid at paragraph 36

 22   Ibid at paragraph 37

 23   Ibid at paragraph 38

 24   Ibid at paragraph 40

 25   Ibid at paragraph 41

 26   Exhibit R2

 27   Transcript PN 2157

 28   Exhibit R2 at paragraph 34

 29   Ibid at paragraphs 35 – 36

 30   Closing Submissions of the Applicant, dated 5 June 2018, at paragraphs 21 – 23

 31   Closing Submissions on behalf of the Respondent, dated 20 June 2018, at paragraph 25

 32   Ibid at paragraph 27

 33   Ibid at paragraphs 28 – 29

 34   Exhibit R6 at Attachment LH10

 35   Transcript PN 446

 36   Ibid PN 448 – 450

 37   Ibid PN 451

 38   Ibid PN 457 – 458

 39   Ibid PN 460 – 473

 40   Ibid PN 473

 41   Ibid PN 471, 474 and 476

 42   Ibid PN 479

 43   Ibid PN 474

 44   Ibid PN 485

 45   Ibid PN 476

 46   Ibid PN 484

 47   Ibid PN 480 – 484 and 486

 48   Ibid PN 490 – 492

 49   Ibid PN 494 – 495

 50   Ibid PN 540

 51   Ibid PN 539 – 541

 52   Ibid PN 542

 53   Exhibit R4 at paragraph 43

 54   Ibid at paragraph 44

 55   Transcript PN 534 – 536

 56   Closing Submissions of the Applicant, dated 5 June 2018, at paragraph 25

 57   Ibid at paragraph 26

 58   Closing Submissions on behalf of the Respondent, dated 20 June 2018, at paragraphs 37 – 39

 59   Ibid at paragraph 40

 60   Ibid at paragraphs 40 and 45

 61   Ibid at paragraph 42

 62   Ibid at paragraph 44

 63   Exhibit R6 at Attachment LH10

 64   Transcript PN 551

 65   Ibid

 66   Ibid PN 553

 67   Ibid PN 551 and 554

 68   Ibid PN 551 and 555 – 556

 69   Ibid PN 591

 70   Ibid PN 574 – 577

 71   Ibid PN 581 and 592

 72   Ibid PN 593

 73   Ibid PN 597

 74   Ibid PN 605 – 606, 621 and 625

 75   Ibid PN 607

 76   Ibid PN 626 – 627

 77   Ibid PN 649

 78   Ibid PN 658

 79   Ibid PN 659

 80   Exhibit R2 at Attachment PF8, Exhibit R4 at paragraph 21 and Transcript PN 1144

 81   Transcript PN 1220

 82   Exhibit R2 at Attachment PF8, Exhibit R4 at paragraph 25 and Transcript PN 1144 – 1148

 83   Ibid at Attachment PF8 and Exhibit R4 at paragraph 25

 84   Ibid at Attachment PF8, Exhibit R4 at paragraphs 26 – 28 and Attachment JB4 and Transcript PN 1149 – 1152

 85   Transcript PN 1153 – 1154, 1158, 1164, 1198, 1221 and 1225

 86   Ibid PN 1199

 87   Ibid PN 1211

 88   Ibid PN 1225 – 1226

 89   Exhibit R4 at paragraph 29 and Attachment JB5

 90   Transcript PN 1196

 91   Ibid PN 1200 – 1202 and Exhibit R4 at paragraph 31

 92   Ibid PN 1203

 93   Ibid PN 1209 – 1210

 94   Ibid PN 1276 – 1277

 95   Exhibit R2 at paragraph 37

 96   Ibid

 97   Ibid at paragraph 38

 98   Ibid at paragraph 41

 99   Ibid at paragraph 42

 100   Closing Submissions of the Applicant, dated 5 June 2018, at paragraphs 32 – 33

 101   Ibid at paragraphs 29 – 30

 102   Closing Submissions on behalf of the Respondent, dated 20 June 2018, at paragraph 46

 103   Ibid at paragraphs 46 – 47

 104   Ibid at paragraphs 49 – 51

 105   Ibid at paragraph 52

 106   Exhibit R6 at Attachment LH10

 107   Transcript PN 632 – 633

 108   Ibid PN 640

 109   Ibid PN 647 – 648

 110   Ibid PN 674 – 675

 111   Ibid PN 676 – 677

 112   Ibid PN 581 and 694

 113   Ibid PN 588

 114   Ibid PN 582

 115   Ibid PN 679 – 685

 116   Ibid PN 702

 117   Ibid PN 678 and 684

 118   Ibid PN 705 – 706 and 716

 119   Ibid PN 707 – 708 and 717 – 718

 120   Ibid PN 719

 121   Ibid PN 709 – 710 and 697 – 698

 122   Exhibit R2 at paragraphs 39 – 40

 123   Closing Submissions of the Applicant, dated 5 June 2018, at paragraph 37

 124   Ibid at paragraphs 36 – 36

 125   Ibid at paragraph 40

 126   Closing Submissions on behalf of the Respondent, dated 20 June 2018, at paragraphs 53 – 55

 127   Ibid at paragraphs 58 – 59

 128   Ibid at paragraph 57

 129   Transcript PN 765 – 770

 130   Ibid PN 773 – 778

 131   Ibid PN 779 – 781

 132   Ibid PN 782 – 783

 133   Ibid PN 784 and 798

 134   Ibid PN 786

 135   Ibid PN 785 and 796

 136   Ibid PN 785

 137   Ibid PN 788

 138   Ibid PN 790

 139   Ibid PN 791 – 792

 140   Ibid PN 794 – 795

 141   Ibid PN 799

 142   Ibid PN 800 – 802

 143   Ibid PN 810 and 818

 144   Ibid PN 812 – 813

 145   Ibid PN 819 – 822 and 828

 146   Ibid PN 830 – 833

 147   Ibid PN 838 – 840

 148   Ibid PN 841 – 842

 149   Ibid PN 843 and 845

 150   Ibid PN 846 – 848

 151   Ibid PN 849 – 851

 152   Ibid PN 852 – 854

 153   Ibid PN 856

 154   Ibid PN 857 – 866 and 878 – 883

 155   Ibid PN 869 and 871

 156   Ibid PN 871

 157   Ibid PN 873

 158   Ibid PN 874 – 875

 159   Ibid PN 881

 160   Ibid PN 884 – 887

 161   Ibid PN 888 – 889 and 904

 162   Ibid PN 891

 163   Ibid PN 892 – 895

 164   Ibid PN 896 – 897

 165   Ibid PN 898 – 901

 166   Ibid PN 905 – 907

 167   Ibid PN 908 – 911

 168   Ibid PN 912 – 914

 169   Ibid PN 915 – 917

 170   Ibid PN 918

 171   Ibid PN 919 – 934

 172   Ibid PN 935 – 936

 173   Ibid PN 937

 174   Exhibit R1

 175   Ibid at paragraph 18 and Attachment MB1 and Transcript PN 1511 – 1517, 1519 – 1520 and 1548 – 1549

 176   Transcript PN 1518

 177   Ibid PN 1535 – 1539

 178   Transcript PN 1522 – 1528 and Exhibit R1 at paragraph 20

 179   Ibid PN 1553 – 1554

 180   Ibid PN 1555 – 1556

 181   Ibid PN 1559

 182   Exhibit R1 at paragraph 33

 183   Transcript PN 1562 – 1563 and 1574

 184   Ibid PN 1567 and 1570

 185   Ibid PN 1574 – 1576 and Exhibit R1 at paragraph 20

 186   Ibid PN 1577 – 1579

 187   Ibid PN 1582 and Exhibit R1 at paragraph 21

 188   Ibid PN 1614 – 1624

 189   Ibid PN 1625 – 1627

 190   Ibid PN 1628 and Exhibit R1 at paragraph 29 and Attachment MB1

 191   Ibid PN 1630 and ibid at paragraphs 21 and 35 and Attachment MB1

 192   Ibid PN 1630 and 1633 and ibid at paragraph 23 and Attachment MB1

 193   Ibid PN 1654 – 1657 and ibid at paragraph 25 and Attachment MB1

 194   Ibid PN 1634 – 1639 and 1655

 195   Ibid PN 1659 – 1661 and 1663 and Exhibit R1 at paragraphs 23 – 24 and 35 and Attachment MB1

 196   Exhibit R1 at paragraph 23 and Attachment MB1

 197   Ibid at paragraph 23 and Attachment MB1 and Transcript PN 1661 and 1663

 198   Transcript PN 1662 – 1663

 199   Ibid PN 1752 – 1753

 200   Ibid PN 1768

 201   Ibid PN 1769

 202   Ibid PN 1771 – 1774

 203   Ibid PN 1793 – 1798

 204   Ibid PN 1915

 205   Closing Submissions of the Applicant, dated 5 June 2018, at paragraphs 44 – 45

 206   Ibid at paragraph 48

 207   Ibid at paragraph 49

 208   Ibid at paragraphs 50 – 51

 209   Ibid at paragraph 55

 210   Ibid at paragraph 52

 211   Ibid at paragraph 53

 212   Ibid at paragraphs 56 – 58

 213   Closing Submissions on behalf of the Respondent, dated 20 June 2018, at paragraph 62

 214   Ibid at paragraphs 63 – 64

 215   Ibid at paragraphs 67 – 69

 216   Ibid at paragraphs 70 – 71

 217   Ibid at paragraphs 73 – 74

 218   Ibid at paragraphs 78 – 79

 219   Ibid at paragraphs 80 and 83

 220   Ibid at paragraph 82

 221   Ibid at paragraphs 85 – 87

 222   Ibid at paragraph 89

 223   Ibid at paragraphs 90 – 91

 224   Ibid at paragraph 92

 225   Ibid at paragraphs 94 – 96

 226   Ibid at paragraphs 97 – 99

 227   Ibid at paragraph 100

 228   Exhibit R6 at Attachment LH10

 229   Transcript PN 1001 – 1002 and 1023

 230   Ibid PN 1012

 231   Ibid PN 1002 – 1004

 232   Ibid PN 1005 – 1006

 233   Ibid PN 1011 and 1013

 234   Ibid PN 1011 and 1014

 235   Exhibit R5

 236   Ibid at paragraph 9

 237   Ibid at paragraph 10

 238   Ibid

 239   Ibid at paragraph 12

 240   Ibid at paragraph 13

 241   Ibid at paragraph 15

 242   Ibid at paragraph 16

 243   Ibid at paragraph 17

 244   Ibid at paragraphs 21 – 22

 245   Closing Submissions of the Applicant, dated 5 June 2018, at paragraph 61

 246   Ibid

 247   Ibid at paragraph 62

 248   Closing Submissions on behalf of the Respondent, dated 20 June 2018, at paragraphs 104 – 106

 249   Ibid at paragraphs 107 – 108

 250   Submissions in Reply by the Applicant, dated 25 June 2018, at page 3

 251   Ibid

 252   Closing Submissions of the Applicant, dated 5 June 2018, at paragraphs 6 – 9

 253   Ibid at paragraph 9

 254   Closing Submissions on behalf of the Respondent, dated 20 June 2018, at paragraphs 18 and 21

 255   Exhibit R3 at paragraphs 2 – 3

 256   Exhibit R2 at paragraph 33

 257   Ibid at paragraphs 35 – 37

 258   Ibid at paragraph 34

 259   Closing Submissions on behalf of the Respondent, dated 20 June 2018, at paragraph 19

 260   Exhibit R6 at Attachment LH5

 261   Ibid at Attachment LH10

 262   Submissions in Reply by the Applicant, dated 25 June 2018, at page 1

 263   Closing Submissions of the Applicant, dated 5 June 2018, at paragraph 7

 264   Ibid at paragraph 6

 265   Submissions in Reply by the Applicant, dated 25 June 2018, at page 1

 266   Ibid

 267   Closing Submissions of the Applicant, dated 5 June 2018, at paragraph 15

 268   Ibid at paragraph 16

 269   Ibid at paragraph 19

 270   Closing Submissions on behalf of the Respondent, dated 20 June 2018, at paragraph 136

 271   Ibid at paragraph 125

 272   Ibid at paragraphs 139 – 141

 273   Ibid at paragraphs 142 – 143

 274   Ibid at paragraph 144

 275   Ibid

 276   Exhibit A3

 277   Exhibit R6 at Attachment LH6 and Transcript PN 1894 and 1903

 278   Ibid at Attachment LH6

 279   Ibid

 280   Ibid

 281   Ibid

 282   Exhibit R6 at paragraph 30 and Transcript PN 1918 – 1919

 283   Transcript PN 1925

 284   Ibid PN 1925 – 1930

 285   Closing Submissions on behalf of the Respondent, dated 20 June 2018, at paragraph 145

 286   Ibid at paragraphs 146 – 148

 287   Ibid at paragraph 149

 288   Submissions in Reply by the Applicant, dated 25 June 2018, at page 3

 289   Closing Submissions on behalf of the Respondent, dated 20 June 2018, at paragraph 152

 290   Submissions in Reply by the Applicant, dated 25 June 2018, at page 3

 291   [2014] FWCFB 236

 292   Ibid at paragraphs [10]-[12]

 293 (1998) 88 IR 21

 294   Submissions in Reply by the Applicant, dated 25 June 2018, at pages 2-3