Michael Nugent v Queensland Rail
[2025] FWC 835
•26 MARCH 2025
| [2025] FWC 835 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Nugent
v
Queensland Rail
(U2024/8181)
| COMMISSIONER HUNT | BRISBANE, 26 MARCH 2025 |
Application for an unfair dismissal remedy – Applicant sent threatening and harassing emails and made covert recordings of Respondent’s employees – Applicant’s behaviour repeated – Applicant warned on multiple occasions – Conduct in breach of Code of Behaviour and Bullying and Harassment Standard – Valid reason for dismissal – Dismissal not harsh, unjust or unreasonable – Application dismissed
On 15 July 2024, Mr Michael Nugent made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed from his employment with Queensland Rail (the Respondent) and that the dismissal was harsh, unjust or unreasonable.
On 24 July 2024, the Respondent filed a Form F3 Employer Response to the application. It did not raise a jurisdictional objection.
Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing on 8 November 2024. Mr Nugent represented himself at the hearing. The Respondent was represented by Mr Nick Garde, Principal Advisor Employee Relations, and Ms Upashna Pala, Senior Employee Relations Advisor.
The following people filed witness statements and were cross-examined:
Mr Nugent;
Mr Nicholas Navin, General Manager Regional Project Delivery;
Mr Gavin Anderson, General Manager Regional Assets South;
Mr Matthew Thompson, Asset Manager Near North Coast;
Mr Dane Woolnough, Asset Maintenance Coordinator Trackside Systems; and
Mr Adrian Gala, Manager Ethics and Investigations.
Relevant legislation
Section 394 of the Act provides:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Further, ss.385 and 387 provide as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 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.”
There are no jurisdictional issues preventing the Commission determining if the dismissal was unfair. The application was made in time. Mr Nugent has been dismissed and has met the minimum employment requirements. The Respondent is not a small business, and the dismissal was not a case of genuine redundancy. Accordingly, it is necessary to determine if the dismissal was unfair having regard to the considerations in s.387 of the Act.
Background
Mr Nugent was employed by the Respondent as a Senior Traction Linesperson from 29 October 2018 until his dismissal on 15 July 2024.
Mr Nugent sent numerous intimidating, threatening and harassing emails to various Respondent employees between 1 October 2021 and 19 April 2022. He states that he did so because he was bullied in February 2020 by an employee employed with Aurizon. Mr Nugent did not report the alleged bullying by the Aurizon employee until May 2022. Mr Nugent used to work with this relevant Aurizon employee.
On 2 February 2022, Mr Nugent gave an undertaking to Mr Michael Hawkins, Senior Manager Employee Relations, that he would not send any further harassing emails. He continued to do so, including one on 20 March 2022 where he wrote, “Prepare yourself for jail. This is going back to court.”
When the Respondent was investigating the matter in 2022, Mr Nugent responded:
·I acknowledge that I made a mistake;
·I have sought support through the EAP program; and
·I have improved and this won’t happen again.
Having completed its investigation, and having regard to Mr Nugent’s response, on 14 September 2022 the Respondent issued to Mr Nugent a final warning letter for sending repeated intimidating, threatening and harassing emails to the Respondent’s staff. The final warning letter included the following extract:
“I trust that you understand the seriousness of your current situation and I remind you that you are required to comply with Queensland Rail’s Code of Conduct and Equity, Diversity, Harassment and Discrimination Standard. Should you fail to do so, further disciplinary action will be taken against you, which may result in the termination of your employment”.
On 28 July 2023, Mr Dane Woolnough, Trackside Systems Coordinator sent the following email to employees, including Mr Nugent:
“Hi Team,
See below update from the ethics team.
1. Reporting of losses…
2. Lobbyists…
3. Covert recording of meetings/discussions – Whilst Queensland Legislation has provision for this, QR does not support such recordings noting that such behaviour in the ordinary course of events is considered disrespectful and unprofessional. If anyone feels they have a need to make a covert recording, it suggests they have serious underlying concerns which they should raise with their Leader, HR Central or other appropriate authority. The subsequent playing of a covert recording may have legal ramifications for the person who made the recording…”
On 31 July 2023, Mr Nugent forwarded the above message to Mr Fred Peters, his colleague and support person. This demonstrates that he read the email message sent to him on 28 July 2023.
Despite Mr Nugent’s assurances to the Respondent provided at [11], he considers that he did not harass or intimidate colleagues in late 2021 and early 2022, and a written warning was not warranted. He considers this was supported by Ms Ann Graham when he covertly recorded a telephone conversation with her in August 2023. Mr Nugent selected some parts of the covert recording to demonstrate that a specific complaint had not been made about him when Ms Graham said the following:
· “There wasn't a specific complaint”;
· “It wasn't a complaint”;
· “Was there a formal written complaint”;
· “This isn't actually a complaint”;
· “It wasn't called bullying and harassment”;
· “It wasn't bullying and harassment”; and
· “You haven't been called a bully or harasser”.
In mid-June 2024, Mr Nugent forwarded to a number of employees an earlier email he had sent to a Workers’ Compensation officer on 14 June 2024, noting that the Respondent is self-insured for workers’ compensation. The email stated:
“You are a very dangerous person who does not care about my safety. I have reported your conduct to Dave Woolnough. Do not contact me again.”
Mr Nugent forwarded the above 14 June 2024 email to Mr Woolnough at 11:28pm on 17 June 2024. Mr Nugent often sent his abusive or offensive emails late at night.
Mr Nugent also forwarded to a number of employees an email that had been sent to him by Mr Woolnough, conducting a welfare check on him. Further, Mr Nugent began sending to management copies of covert recordings made by him. The Respondent considered that he was engaging in conduct that was inappropriate.
On 26 June 2024, he was issued with the following show cause letter:
“Dear Michael,
Show Cause
I refer to the Final Warning of 14 September 2022 that was issued to you. In that Final Warning you were advised:
I trust you understand the seriousness of your current situation and I remind you that you are required to comply with Queensland Rail’s Code of Conduct and Equity, Diversity, Harassment and Discrimination Standard. Should you fail to do so, further disciplinary action will be taken against you, which may result in the termination of your employment.
It has come to my attention that you are alleged to have again been sending inappropriate communications. As such, I am providing you the opportunity to respond to the following:
1. It is alleged that in June 2024, Michael Nugent, Senior Traction Linesperson, acted unprofessionally by sending inappropriate (intimidating/threatening, or harassing) emails/recordings to Queensland Rail personnel. If substantiated, this is in breach of Section 2.3.1 of the Code of Conduct (MD-10-62) and or Sections 2.1 and or 2.2 of the Bullying and Harassment Standard (MD-22-144).
2. It is alleged that in June 2024 (and or prior), Michael Nugent, Senior Traction Linesperson, has acted disrespectfully and unprofessionally by making covert recordings of workplace conversations that they were a party too, and or then inappropriately distributing these recordings. If substantiated, this is in breach of Section 2.3.1 of the Code of Conduct (MD-10-62).
Extracts of the policy in question are contained in the Attachment to this letter.
If the actions alleged are true, that you have breached the policies and procedures outlined above, you have shown a serious disregard for your responsibilities as a Queensland Rail employee.
Following careful consideration of the matters outlined above, in particular the existence of a Final Warning relating to inappropriate communications, I am considering terminating your employment with Queensland Rail. Before making my decision, I am providing you with three business days to put to me, in writing, any further response or circumstances that you consider should be taken into account.
This response must be received by me no later than 5pm on Monday 1 July 2024.
It is important that you respond to this letter and provide details of any additional circumstances or facts you wish Queensland Rail to take into consideration. If you do not respond, I will presume that you have no further explanation or information you wish me to consider. I will advise you of my final decision in writing.
Whilst you prepare you response, you are directed not to attend work from today until further notice from Queensland Rail. During this time, you will continue to be paid in accordance with Section 2.4 ‘Removal from role/site and/or alternative duties’ of the Discipline Process Specification (MD-10-52) and must be available at Queensland Rail’s request during business hours.
Please be advised that this process is confidential and you are instructed not to communicate with anyone in the workplace in respect of this process, except your support person who will be under a similar obligation of confidentiality.
In addition, whilst this process is occurring you are NOT to:
·attend any Queensland Rail workplace or site without approval in writing from Management.
·contact any Queensland Rail personnel other than Dane Woolnough, Asset Manager Near North Coast – this includes the sending of emails or recordings.
Your access to Queensland Rail buildings and other sites will be revoked and you are required to provide all keys and access cards, etc.
Should you wish to discuss this matter you can speak to Dane Woolnough who will look to facilitate.
I take this opportunity to encourage you to utilise the independent and confidential counselling and support available for you at any time by contacting Employee Support by telephone on [number] and your own doctor(s). You may also wish to consider other independent and external support services such as beyondblue [number] or Lifeline [number].
Yours sincerely
Nicholas Navin
EGM Regional Assets
26 June 2024”
Following receipt of the show cause letter, on 26 June 2024, Mr Nugent replied to Mr Navin:
“Dear Nick,
Received your Show Cause letter at 1540.
Who are you? I have nothing to do with you?Kindest regards
Mick Nugent”
Mr Nugent provided written responses on 27 and 28 June 2024, and on 1 and 2 July 2024. On 2 July 2024 he communicated with Mr Woolnough to advise that he withdrew his earlier communications and wished to only rely on his 2 July 2024 communication. He provided further responses on 8 and 9 July 2024.
Mr Nugent was invited to a meeting on 15 July 2024 and informed he could bring a support person with him. He indicated that he would attend. Mr Nugent requested Mr Fred Peters attend the meeting and read a letter he had prepared for Mr Peters. Mr Nugent considers that his support person, Mr John Roeser was turned away and only Mr Peters was permitted to attend with Mr Gavin Anderson and Mr Woolnough. After Mr Peters read out a document, Mr Anderson handed to Mr Peters the termination letter for Mr Nugent. Mr Anderson then emailed Mr Nugent the termination letter, reproduced below:
“Dear Michael
Termination of Employment
I refer to my show cause letter to you, dated 26 June 2024. In this letter, I stated that I was considering terminating your employment with Queensland Rail in light of your having:
1. In June 2024 acted unprofessionally by sending inappropriate (intimidating/threatening, or harassing) emails/ recordings to Queensland Rail personnel. This is in breach of Section 2.3.1 of the Code of Conduct (MD-10-62) and or Section 2.1 and or 2.2 of the Bullying and Harassment Standard (MD-22-144).
2. In June 2024 (and or prior), having acted disrespectfully and unprofessionally by making covert recordings of workplace conversations that they were a party too, [sic] and or then inappropriately distributing these recordings. This is in breach of Section 2.3.1 of the Code of Conduct (MD-10-62).
You were asked to provide a written response to this proposed disciplinary action, as well as any further information which you considered I should take into account in determining the appropriate action to be taken. I acknowledge receipt of your responses on 27 and 28 June 2024, and on 1 and 2 July 2024. In your responses, you raised the following matters:
·That you have been bullied since 4 February 2020 which has been reported, and a Workers’ Compensation claim lodged.
·You mentioned the potential of your self-harming as the result of the bullying.
·Concerns have not previously been raised by Management of your emails/recordings.
·Making a recording without the other person knowing that you are recording a conversation is not illegal in Queensland.
·Recordings were provided as evidence including and not limited to your Workers’ Compensation claim, and your complaint to HR Central.
·You limited sending the recordings including but not limited to Management and your support persons.
·QR does not have a Policy or Standard that advises employees not to record conversation that they are party to. The extracts from policies attached to the Show Cause letter do not articulate anything about not recording conversations.
I have considered the issues raised by you in your written response(s) to the Show Cause letter and I make the following comments in relation to these matters:
·Queensland Rail’s Code of Conduct is clear about expectations of employees to demonstrate professionalism and to act honestly and ethically.
·You and other team members were provided with an email on 28 July 2023 about the inappropriateness of making covert recordings in the workplace. It is noted that on 31 July 2023 you onforwarded this email to a colleague.
·You then shared the recordings with multiple Leaders and personnel, an audience considered wider than reasonable.
·Recipients of the recordings you provided copies to attempted to act in the best interests of you by accepting the recordings in order to best assess your concerns.
·These recordings contained not just your personal information but also you gave no consideration to the privacy of the parties you were speaking to and whom were endeavouring to provide you support (Ann Graham recording of 20 July 2023).
·The content of the emails/recordings include inappropriate language, and disrespectful commentary. (Dane Woolnough recording of 19 June 2024).
·Your behaviour including content, quantum of communications, and non-business hours timings, is considered inappropriate. Whether recipients felt intimidated or threatened cannot be discounted.
·That recipients felt harassed is supported by the referral of the matter for consideration and discipline.
Further, you have failed to accept responsibility for your actions and you show no remorse. Even after a Final Warning was issued to you in 2022 for anti-social behaviour.
Your Leaders and I have no confidence that you will not repeat your behaviour.
Your response to the show cause letter has been given serious consideration; however, I do not believe that these matters mitigate your conduct.
In Queensland Rail safety comes first. Always. Working safely is a condition of employment and we all take personal accountability for the safety of customers, ourselves, our colleagues, and the general public. In this case this means acting professionally even when you feel challenged to do so.
Accordingly, your employment with Queensland Rail will be terminated, effective immediately.
In the circumstances, you are not required to work the period of notice and you will be paid five weeks’ pay in lieu of notice. You will receive further information from Payroll regarding your outstanding entitlements, which will be paid into your nominated bank account.
Please arrange to return any Queensland Rail property in your possession by contacting Dane Woolnough, Asset Manager Near North Coast, on [number].
This property may include, but is not limited to:
·Mobile telephone
·Access keys to buildings or cupboards
·Queensland Rail Home and Duty Pass
·Security Access cards
·Queensland Rail business cards
·Anything else applicable to the area.
Yours sincerely
Nicholas Navin
A/Executive General Manager Regional Assets
15 July 2024”
EVIDENCE AND SUBMISSIONS OF THE APPLICANT
Evidence of Mr Nugent
Mr Nugent was in receipt of a pay rate of $73.15 per hour together with generous allowances.
While his employment with the Respondent commenced in 2018, he has a long history of working in the rail industry. In 1993, while working with Queensland Rail, he attended an investigation course conducted by Queensland Police where he says he was informed making covert recordings was a way of gathering evidence.
Mr Nugent has made covert recordings of conversations whilst at work over many years. He does not consider that it is inappropriate or unlawful to do so. He has shared recordings made by him, including those detailed below:
·25 June 2024 – audio recording from 1 December 2022 of Matt Thompson shared with David Marchant, Rebecca Munn, Matt Thompson, Dane Woolnough, Gavin Anderson, Craig Webb, Brett Rasmussen;
·26 June 2024 – audio recording from 12 July 2023 of Dane Woolnough shared with David Marchant, Rebecca Munn, Matt Thompson, Dane Woolnough, Gavin Anderson, Craig Webb, Brett Rasmussen;
·26 June 2024 – audio recording from 20 July 2023 of Ann Graham shared with David Marchant and Rebecca Munn;
·27 July 2023 – the above three audio recordings shared with Robyn Stark from Clarity Workplace Solutions during an interview regarding his workcover claim;
·23 July 2023 – audio recording from 1 December 2022 of Matt Thompson shared with Ann Graham;
·2 December 2023 – audio recording from 1 December 2022 of Matt Thompson shared with a workers’ compensation contractor;
·22 August 2023 – three audio recordings from 21 August 2023 of Matt Taylor shared with Dave Neil; and
·20 June 2024 – audio recording from 19 June 2024 of Dane Woolnough shared with the Respondent’s Chairman.
Mr Nugent has completed numerous workplace training programs, including Code of Conduct and safety workshops. He stated that he attended training on the following dates, and there was never any specific instruction given in respect of covert recordings being prohibited:
30 October 2018;
1 October 2019;
8 September 2020;
16 September 2021; and
7 July 2023.
He considers that during an interview with Ms Ellie Bowden and Mr Michael Hawkins, he was lied to by Mr Hawkins and given tampered evidence. As a result, he decided to covertly record meetings to protect himself and ensure an accurate record of events.
Mr Nugent considers that he has informed many managers over the years that he covertly records conversations, without any managers informing him that he is prohibited from doing so. He considers some have encouraged him to provide to them recordings that he has made. In respect of training he received in May 2024 where the Respondent’s CEO said to record events, he considers that there were no caveats placed on the CEO’s suggestion and that it included covert recordings.
Mr Nugent made various bullying complaints and lodged workers’ compensation claims. He asserted that he had been bullied in 2020 by an Aurizon employee at the Rockhampton Leagues Club while he was dining there while on a work trip. Mr Nugent had worked with this particular Aurizon employee prior to commencing work with the Respondent. Mr Nugent first reported this incident in May 2022, while he was being investigated in relation to his conduct in late 2021/early 2022.
In March 2022, Mr Nugent was sent an offensive email by a departing Respondent employee. Mr Matthew Thompson responded to Mr Nugent and informed him that the departing employee’s email was not welcome or necessary, and noting that the employee was finishing up at the end of the week, to alert Mr Thompson if he made any further offensive comments to him.
In November 2022, Mr Nugent asserts that a Respondent manager rang him and told him that he had been bullying the CEO and two Respondent employees. He reported the incident and considered that he was then harassed and intimidated by the workers’ compensation officer handling his matter to withdraw the claim. Approximately six months later he then complained about this person’s conduct. He also continued with the workers’ compensation claim.
The workers’ compensation claim was rejected in January 2024.
Regarding the emails sent by Mr Nugent in 2021 and covert recordings, Mr Thompson sent Mr Nugent the following two emails on 8 December 2021:
“Hey Mick.
Hope you’re well.
I have tried to give you a couple of calls to discuss this matter however have not been able to get on to you. I will give you a call when I am back at work next week to discuss, however in the interim:
Last week I received a call from HR regarding emails that you have apparently sent to members of Queensland Rail senior management and also members of the Queensland Rail board regarding an incident that occurred in Aurizon a few years ago. It is of the understanding that the members of senior management also worked for Aurizon at the same time.
The concern is that these emails are not appropriate due to this issue relating to Aurizon and not Queensland rail, as well as what has been written within the emails and the time of which these emails have been sent, usually late at night.
Due to the above emails, there was also concerns raised around your possible mental state of mind and suitability to perform rail safety duties. I have confirmed that there have been no noticeable concerns at work with your performance and behaviour and that you have continued to deliver high quality work.
I have not been provided any copies of these emails so I have no information about the incident, however I am requesting that you stop sending these emails and if required you follow up further with Aurizon on the matter.
I am currently on leave until next week however once you have had an opportunity to property review, if you could please respond back to this email acknowledging receipt that would be appreciated. A reminder that our EAP provided converge is available to be contacted if required. Please also reach out to Dane Woolnough or Alan Simpkins in the interim also if required. I have currently not informed Dane or Alan of this matter.
Regards.
Matthew Thompson
Queensland Rail
Asset Manager Near North Coast”…
“Hey Mick.
In addition to the below:
I gave Tony Gouge a call last week to check in how he was going and he expressed some concern in a conversation held between himself and yourself regarding the vehicle incident involving Ingo. The concern was that the conversation was recorded. We are not authorised to record any conversations and this could be considered a breach of the code of conduct, so I am also requesting that you do not record any further conversations and that you also delete what you currently have.
Regards.
Matt
Matthew Thompson
Queensland Rail
Asset Manager Near North Coast”
Mr Nugent responded the same day as follows:
“Hi Matt,
As I understand it, it is not illegal to record a private conversation you are a party to in Queensland. Whether the other party knows your recording or not.
I have never seen or been advised that recording conversations is a breach of the Code of Conduct. I just read the Code of Conduct MD-10-62 and couldn’t see it anywhere. Do you mind advising the Clause that you are referring to for my information.
I was only gathering information in regard to the accident on the 16.11.21 and to cross check witness version of events. I haven’t shared the recording with anyone. I offered the recording to Tony for his own reference. There was no response from Tony. I will delete the recording as per your request below.
Reference to your other email below:
What those persons did to me and my family will take time to work through. I have been in contact with EAP provider Converge who are assisting me. I will re-engage with Converge as it has been a while since I was in contact with them.
Rgds,
Michael Nugent
Senior Traction Linesperson”
Mr Nugent sought to appeal the final written warning letter issued to him at [12]. On 1 December 2021, Mr Thompson sent him the following email:
“Hi Michael.
Thank you for calling me back today after I called about the attached workplace incident report you lodged for workplace stress.
As discussed, the reason for my call was to discuss the attached incident and primarily to check in on you and see if you are ok. Please feel free to contact me if you have ever have a concern you would like to discuss or if I can assist with providing any additional support. During our conversation, you reported you have recently had sleeping concerns and requested to be taken off of call for the remainder on your call week. I have followed up with our Coordinators and this has occurred. You also mentioned that you are seeking your GP this afternoon. If you have any concerns around being fit for duty, please contact me or your leader. I will ask Dane to check in on you next week and we can go from there.
During our conversation, I recall you raising a concern that now you have been issued a final warning, that you can be terminated for a different minor issue, with the example you gave being a traffic infringement. We did not get to discuss this concern in detail, however I just want to reassure you that a warning is just that. Another instance of performance/behavioural issues does not mean dismissal. Each instance is looked at on its own and in connection with the employee’s history. Without going into details, some employees have multiple final warnings due to the issues being very different. As long as you do not repeat the email behaviour, you will be ok.
I have raised your concern about there being no official complaint of bullying/harassment, or you not being provided a copy of the complaint.
I note Vashti has forwarded an invite for a joint meeting on Thursday 15th December following the suggestion raised about a joint conversation, which I have accepted.
Regards.
Matthew Thompson
Asset Manager Near North Coast”
Mr Thompson forwarded Mr Nugent’s response on to other Respondent managers. Mr Brett Smith provided his views to Mr Thompson and the other Respondent managers as follows:
“Thanks Matt
Not that it matters as none of us are SMEs in this field and it is not something we would necessarily raise anyway, but for what it’s worth, I am reasonably confident that Michael is partially correct in his assertion (based on training received in a past life, which might be outdated now).
·I think that in Queensland it is legal to record a conversation that you are directly part of without advising other participants that they are being recorded. Except if that conversation is taking place over a telecommunications device at which point the Telecommunications Act mandates that parties must be advised they are being recorded (hence the warning received when you ring a QR control centre, or any large organisation for that matter).
·Matt – I think you asked Michael to cease investigating the incident and to cease sending emails to senior management outside of his reporting line, prior to these latest emails from Michael? But he continued to do so. Code of conduct right there.
·Were the emails sent and was the recording made on a QR phone? If so, potential code of conduct and misuse of IT equipment.
·The last dot point of Michael’s email is a little concerning for me in that it speaks to mental wellbeing issues, which as I understand it, was the initial concern raised about this behaviour given the timing of the emails and the addresses. To me, hat last dot point says we should be doing more than simply offering converge. We should perhaps speak to converge ourselves to seek advice and also reach out by phone or preferably face to face to Michael, to offer and arrange EAP if requested, to ask if he believes he is ok and ok to continue working and to determine whether we think he is safe to continue performing rail safety work.
The first three points above are really just my waffle and point of view which may or may not be correct. The last one is something that I think we should do something about.
Ann – Your thoughts?
Thanks
Brett”
Ms Ann Graham sent the following email to managers:
“Hi
Tyler Keown is taking this matter over and will be setting a meeting for both Matt and Craig to discuss on Monday. I agree we may have some breaches here of the Code of Conduct and Tyler will discuss with you on Monday in relation to the next steps/options.
AnnieAnn Graham
A/Team Leader”
Mr Thompson sent the following email to Mr Keown on 14 December 2021:
“Hey Tyler.
Thank you for the discussion yesterday regarding Michael Nugent.
I have arranged a teams meeting with Michael today at 1pm to discuss the matter and I will forward him correspondence after our discussion, which I will then send to you.
Regards.
Matthew Thompson
Asset Manager Near North Coast”
Mr Thompson then gave a recount of the meeting he held with Mr Nugent on 14 December 2021:
“Hi Tyler.
Please find attached a summary of the conversation I held with Michael Nugent today.
Though this conversation where I directly asked Michael if he has any mental health concerns that may impact his ability to undertake his role, and also through separate enquiries made to Michael’s leader and team members that have all reported no issues, I am ok from my perspective with Michael continuing in his role without the need for a triggered medical. I have asked him however that if this situation changes to inform us immediately, and will request with his immediate Supervisor to inform me if he notices any changes. I will also touch base with Michael periodically moving forward.
Please let me know if you require any additional information. If Michael provides any further comments, I will forward through.
Thanks.”
Mr Thompson then sent to Mr Nugent the following email:
“Hey Mick.
Thank you for the discussion this afternoon regarding the following topics:
·The investigation into the Motor Vehicle Accident involving Ingo Marais and Tony Gouge on the 16th of November 2021 which you undertook and subsequent further emails sent by yourself after I requested you to cease investigating on the 23rd of November 2021.
·The emails that have been sent by yourself to members of Queensland Rail Senior Management and Queensland Rail board regarding an incident that occurred at Aurizon several years ago.
·Whether this is a link between the above two events and
·Whether either or both of the above cases are causing any mental health concerns that may impact your ability to undertaking your duties.
…
Regarding the vehicle incident investigation, as discussed can you please ensure that prior to commencing any routine or safety investigation that you discuss with Dane, Alan and/or myself and request to be involved?
…
When asked why you took on this investigation, you confirmed you wanted to understand how this incident occurred as Ingo is typically such a safe and careful driver, and that you have previously received formal investigation training and had concerns that there was not an investigation being undertaken at the location of the incident…I also received concerns about telephone conversations being recorded and the team member not being informed until after the fact. Please be mindful and understand how this action can make another team members feel and what negative impacts that may have on their mental health state and recovery post incident. Thank you for confirming you deleted this recording when requested.
Regarding the emails that were sent by yourself to members of Queensland Rail Senior Management and Queensland Rail board regarding an incident that occurred at Aurizon several years ago and whether there is a link between the vehicle incident and these emails, thank you for confirming during the conversation that there is no link between the two situations. Please refer back to the original below regarding my request for these emails to cease.
Regarding if the above events are causing any mental health concerns that have the potential to impact your ability to undertake your role, thank you for confirming that they are not impacting your ability to safely complete your role. From my observations and not including the above, I have previously not witnessed or had anyone raise concerns about your performance or behaviour. As you have disclosed below that you previously have been in contact with Converge and that you will follow up with them again, I encourage you to do so to assist. I am also requesting that if the circumstances changes and you do ever feel that your ability to safely complete you role is reduced, that you let Dane, Aland and/or myself immediately.
If you feel I have misrepresented anything above, or left out any important information, please let me know.
Regards.
Matthew Thompson
Asset manager Near North Coast”
Mr Nugent considers that Mr Thompson did not address Mr Nugent’s practice of covertly recording conversations and he was not informed that his actions were in breach of policy.
Mr Woolnough telephoned Mr Nugent on 19 June 2024 to discuss the email at [16] that he had sent to the Workers’ Compensation officer. Mr Nugent covertly recorded the conversation. I have done my best to transcribe the recording, however it is not a complete account of the conversation:
Mr Woolnough: …she was worried about the email that was sent because obviously [name] raised it to Helen.
Mr Nugent: Yep.
Mr Woolnough: …she said moving forward we need to make sure we’re following the Code of Conduct because it felt like it came across as threatening..um and it could be perceived as not in line with our use of electronic devices… and that kind of stuff … need to be mindful of those emails ….need to be in line with our One Team, Code of Conduct and electronic use of….
Mr Nugent:Mate, they’re fucking pulling their pud, that bloody [name] in her decision not to go ahead with the bullying to the um…is… a cover up of the bullying. She is gotta be kidding me. She totally ignored all the bloody information I gave her, just went down her own line what she wanted to do. She used information that I didn’t say.. she’s dishonest, and they’re having a go at me for stating facts. She’s a dangerous human being. What if I’d fucken kill myself between that bloody she wrote and now? Fucken dead mate, fucken kidding me. Fuck off! I’ve fucken had a gutful of this place.
Mr Woolnough: That’s why they are giving you a new assessor to look at it, fresh eyes, a new take on it…
Mr Nugent:They’ve fucken thrown that back on me and I’m stating fact. I’m firm in what I said. I was accurate. She’s bloody dangerous to go down that line.
Mr Woolnough: I don’t doubt that, but we just need to be mindful that it can be perceived as…
Mr Nugent:Well I hope it is and she should be fucken sacked, she’s a fucken contractor. She don’t give a shit about bloody me. And bloody Helen Creagh backed it up. That letter would never have left her office if she’d bloody…without her seeing it.. she’s a supervisor. My godfather!
Mr Woolnough: I’m not 100% on how all that works….
Mr Nugent:Well you should be, Dane, you’re supposed to be there to protect me from these assholes.
Mr Woolnough: …I went in and said can we get someone else and she said she’d get her supervisor like, who looks after all the contractors is the new person that’s taking over. So Helen’s from QR, this bird looks after all these contractors….
Mr Nugent:I know who Helen Craig is, she’s the one who’s been party to covering up of the bullying in the emails that I’ve got off her.
Mr Woolnough: ….self insurance through the workers’ compensation team.
Mr Nugent:….. I’ve made complaints about the process to her.. just totally ignores what she says.. she carries on like nothing’s happened.. I’ve got nowhere to turn to, I’ve been fucked over by Matt, fucked over by Gavin Anderson, and the two managers above him couldn’t give two shits either when I raise it to their attention. And then bloody [name] writes this decision of not acknowledging the bullying and just covered the whole bloody thing up.
Anyway, I’m getting a new person…
Mr Woolnough sent the following email to Mr Nugent on 19 June 2024, following their telephone conversation:
“Mick,
Just a follow up from our phone call. Just noting on what we spoke about.
Helen Creagh reached out to me regarding your email to [name].
Helen has advised that a new workers compensation advisor will be appointed to manage your case. Her name is Catherine Iwaniuk.
Also noting that your email to [name] can be perceived as intimidating and somewhat threatening.
Moving forward when communicating with others that you need to ensure to follow the Code of Conduct, Appropriate use of Queensland Rail’s electronic communication systems and the 1Team values and behaviours.
I understand that you are frustrated about the situation, but moving forward can you please go into the process with the new advisor starting fresh and provide all the evidence required they require to help you?”
On 20 June 2024, Ms Catherine Iwaniuk emailed Mr Nugent, informing him that she was now managing his workers’ compensation claim. He replied:
“Good afternoon Catherine,
Please see attached.
Thank you for offering to manage my claim. In the interests of my safety, health and wellbeing it would be better if someone else was appointed to my claim.”
Mr Nugent submitted that in the emails of 17, 19 and 20 June 2024 he was expressing his frustration with his WorkCover claim.
On 21 June 2024, late at night, Mr Nugent sent the covert recording between himself and Mr Woolnough to Mr Anderson. In days following, Mr Nugent sent three further covert recordings he had made to Mr Anderson, around midnight.
On 25 June 2024, during a Microsoft Teams meeting with Mr Anderson, Mr Nugent considered that the reasons for sending these emails were accepted. He considered the matter was resolved.
Mr Nugent submitted the covert recordings he made were not intended to be threatening or intimidating. He noted that he did not share the recordings publicly. He submitted that he was not informed or trained that making recordings was inappropriate or was against company policy.
Mr Nugent stated that he attended a Queensland Rail investigation course in 1993 conducted by Queensland Police, where covert recordings were discussed as a method of gathering evidence. He stated that this training influenced his actions.
On 15 July 2024, Mr Nugent was called to a meeting at the Gladstone Railway Station. Mr Nugent indicated that he would attend, accompanied by a support person, Mr Fred Peters. Another support person, Mr John Roeser, was turned away by Mr Anderson. Mr Nugent did not attend the meeting. Mr Peters was handed the dismissal letter which Mr Nugent read when it was delivered to him at home by Mr Peters.
Mr Nugent submitted his dismissal was harsh, unjust and reasonable for the following reasons:
· he was not provided with sufficient evidence of the alleged misconduct;
· he was not given a proper opportunity to respond to the allegations;
· covert recordings were made by him to protect himself and accurately document discussions; and
· the Respondent did not follow its own disciplinary processes as outlined in its internal policy.
Since his dismissal he has experienced severe financial hardship. He has applied for multiple jobs, without success. He seeks reinstatement to his former position without loss of continuity, including payment of lost wages.
He considers the dismissal to be particularly harsh because the Respondent is aware that he had a dispute with Aurizon, and he considers that he has no chance of being re-employed by Aurizon.
Evidence given during the hearing
In evidence given during the hearing, Mr Nugent agreed that when he covertly recorded Ms Graham, she revealed very sensitive information to him, not knowing she was being recorded. Mr Nugent then forwarded that recording to approximately nine colleagues. The following was exchanged:
Commissioner: Other people within Queensland Rail have heard information about her life?
Mr Nugent:Mm-hm.
Commissioner: And I imagine she never expected that a Commissioner of the Fair Work Commission might hear that information about her life?
Mr Nugent:Okay.
………………
Commissioner: For what purpose, Mr Nugent?
Mr Nugent:Well, the original purpose I sent it to, like, [name] and Anne Graham was to – you mean this particular recording?
Commissioner: Yes?
Mr Nugent:Was to – well, I provided it to the investigator initially on 27/09/23 as part of the investigation, you know, in good faith, just to – you know, this is what's, you know, been going on. Can you help me with my Workers Compensation claim? And that was provided in that evidence. And then I sent it off to other managers because no one – the people from the HR investigation area weren't doing anything about it, so I thought management might be able to help me with it. And all those people I included were – hang on, this particular one, was sent –
yeah, sent to management as far as I can remember. To help me with that case. I was – you know, that's what I – what I thought it was doing so, yeah.
Commissioner: You don't think that's inappropriate, Mr Nugent?
Mr Nugent: Well, I didn't at the time. No, I didn't.
Commissioner: You know that's one of the reasons you were dismissed?
Mr Nugent: Yes, I do. Yeah.
Commissioner: And I have to determine whether or not that is a valid reason for your dismissal?
Mr Nugent:Mm-hm.
Commissioner: I heard in one of your recordings you say that you have an app and you were recording all of your phone calls, were you?
Mr Nugent:Not – well, most of them when I was trying to find out why I'd been given this final warning letter without the allegations being substantiated, and I would – yeah, it would – it would come through to my old work – well, my personal phone. I had this app that I got when I was working with Laing O'Rourke, I don't know, somewhere in 16/17 or something like that. And I put it on there and it was a free version of it. And so I started forwarding my work phone to that phone and I explained that to Dave – Dave Neil, the safety investigator, how I was doing it. Yes.
Commissioner: So did you record all of your conversations?
Mr Nugent: No, not all of them. I didn't have it switched over all the time.
Commissioner: And from the majority - - -?
Mr Nugent: So some of them - - -
Commissioner: The majority of the recordings I've listened to, you didn't tell the people that you were recording them, did you?
Mr Nugent:No, I didn't.
Commissioner: Did you record the conversation with the WorkCover fellow who you say then encouraged you to withdraw your claim?
Mr Nugent:WorkCover.
Commissioner: Is it Wayne? Is that his name?
Mr Garde: Wayne Cook, Commissioner.
Commissioner: Wayne Cook. Did you record that conversation, Mr
Nugent?
Mr Nugent: No, I didn't. I just had a diary note of that.
Commissioner: Why didn't you record that conversation?
Mr Nugent:Because my phone wasn't forwarded at that time to my personal phone.
……………….
Commissioner: You'd been making recordings - - -?
Mr Nugent: For a while, yeah.
…..
Ever since I was, you know, misled and lied to by Michael Hawkins on 04/05/22 (indistinct)
Commissioner: Mr Hawkins, he told you not to make – not to send emails to people, didn't he, late at night and you said to Mr Hawkins, didn't you – I've got the same fellow, haven't I? He's the fellow that - - -?
Mr Nugent:Yes, that's right. Yeah.
Commissioner: You said that you wouldn't do that and you did do that. This is in 2022?
Mr Nugent:Yeah. That was because of a result of bullying by ex – an Aurizon employee back in 20. He brought up an issue where I worked previously and it must have upset me or something, so I – I started to send those emails and he spoke to me. And then on 25/03/22, this [name] has a go at me about something that happened in Aurizon. It just start – I don't know, psychological or something underlying – started me sending these emails again.
Commissioner: Yes. So in Rockhampton in 2020 you say you were bullied by an Aurizon employee?
Mr Nugent:Yeah.
Commissioner: You report that many years later to your employer?
Mr Nugent: Couple of years later, yes.
Commissioner: And then in early 2022 when you are sending in appropriate emails, it's Mr Hawkins, isn't it? Who speaks to you and you give him an undertaking that you won't send further emails?
Mr Nugent:That's right. I did, yes.
Commissioner: And you did send further emails and then you get a written warning for it?
Mr Nugent:That's right.
Commissioner: And then you contest the written warning. And that ties you up in knots, doesn't it?
Mr Nugent:Yes, it did, because no one had submitted a formal complaint that I'd harassed or bullied anybody.
Commissioner: Then Ms Graham in the phone calls said to you, 'Look, it's enough that they have reported it and said can we get him to stop doing this'. That's what she was telling you. That that was enough?
Mr Nugent:Okay, yes.
Commissioner: You were still fixated on that, weren't you?
Mr Nugent:Yes, because no one had ever given me evidence to say that anyone had been bullied or harassed.
Commissioner: They didn't have to, Mr Nugent. They reported your conduct and said, 'Can you please make him stop'. She told you that?
Mr Nugent:She told – yes, she did, but she also said that I was a – you know, should have been afforded procedural fairness or natural justice then – and part of that is for the evidence to be shown to me that someone had actually made a complaint.
Commissioner: Well, they objectively were offensive, Mr Nugent, all of those messages. And those people didn't, as she told you, they didn't sit and write on a piece of paper, 'I feel bullied and harassed by Mr Nugent'. They said to management, 'Make him stop'. And management had then addressed it with you. But you got fixated on 'Where's their written complaint'?
Mr Nugent:Yes, I did, yes.
Commissioner: And then later on, you say that all of these messages are benign?
Mr Nugent:Yes, I did, yes.
Commissioner: Why do you think they're benign?
Mr Nugent:Well, I think I said they were just statements. There was one, obviously, could have been written a lot better. One I sent to two people in – two people in Rockhampton, but - - -
Commissioner: Well, shall we go to them, Mr Nugent?
Mr Nugent: If you like, yes.
………………
Commissioner: A few nights later, to Scott and to Wayne, 'Please mark down today as another day both of you chose to be a part of the theft of my income and stay muted'. You then talk about your wife. 'If it was up to me, I'd just sack both of you', you write to Wayne and to Scott. That's not benign, is it?
Mr Nugent:No, it was very pointed at them, because that's what happened. We were back in – when I was in Aurizon, I was still upset about it.
Commissioner: You know that it makes no sense to be sending this sort of email late at night. And it's not benign, is it?
Mr Nugent:That one isn't, no.
Commissioner: The next night, you write and send, 'Why don't you respond to me'. Then the following night?
Mr Nugent:Well, they didn't respond. Like, they didn't ring up and say,
'Mick, what's wrong? What's going on here?'
Commissioner: The following night, you write them – you write to them to say, 'You both were prepared to allow Scott McNeill and Michael Bourke from Aurizon to use the sick leave report to justify the theft of my income and a date in 2017 Magistrate conference'?
Mr Nugent:Yes.
Commissioner: What sort of sick – you (indistinct) sentence then, 'What sort of sick organisation uses an employee's sick leave records against them to keep themselves safe?' Then that's to Scott and to Wayne. That's not benign, is it?
Mr Nugent:No, it's pointed at them, because of what happened and I was – you know, just upset about what happened. I just couldn't get over it.
Commissioner: Well, do you accept that you were appropriately disciplined by being issued a final warning in respect of this conduct?
Mr Nugent:Well, I still have the problem with – that not one of the people I was sending these emails to rang up and said, 'Wait, what's wrong, how can we help you'. They have a look out for your mate policy. Not – not one of them rang up and said, 'What's wrong'.
Commissioner: You were working at this time, weren't you, Mr Nugent?
Mr Nugent: Sorry?
Commissioner: You were working? You weren't incapacitated, were you?
Mr Nugent: No, no, I was working.
Commissioner: Earning a relatively high salary?
Mr Nugent: Very high salary.
Commissioner: So if you recognised that you were not well, you might have sought help?
Mr Nugent:Well, I did, I was – I saw the – I started off initiating the Converge counsellors to help me – just you know, stop what I was doing. Before I even was chatted with by Michael Hawkins and then I continued with that, with the Converge counsellors to
– to help me you know, get over – use – get strategies to you know - you know, deal with it. And it all helped and yes, that was ongoing, you know, basically right up until June really. So - - -
I asked Mr Nugent why he continued to send offensive emails after he was instructed not to on 2 February 2022:
Commissioner: Saying to Wayne Crosser, 'Please tell me when it is okay to lie to an FWA Commissioner, which you did.' That's not benign?
Mr Nugent:Well, when I said benign, it had – it was all to do with our – our relationship when I was back at Aurizon. So benign may not have been the right word for it. But, yes.
Commissioner: Well, see, Mr Nugent, you then got so hung up on receiving a written warning about your conduct that it set you on a path of righteousness when you couldn't accept the warning?
Mr Nugent:No, because, yes, I accept – I – yeah, I acknowledge that
but I spoke to Matt on 1 December 22 and he said, 'Well, what if there is in our evidence that – that there was a complaint', and I said, 'Well, fair enough'. But he never followed up and gave it to me. So I was still left to think, 'Well, there's still no actual written complaint here'.
Commissioner: Do you accept, Mr Nugent, that you needed to be stopped?
Mr Nugent:That's right, yes. And the QI – sorry, not – yes, QR were helping me to stop. They were – they sent me off to Converge, the EAP provider.
Commissioner: So you needed to be stopped?
Mr Nugent: Yes.
Commissioner: By having this matter investigated by you being issued with a written warning. Do you accept that?
Mr Nugent:Okay. Yes.
EVIDENCE AND SUBMISSIONS OF THE RESPONDENT
Evidence of Mr Nicholas Navin
Mr Nicholas Navin is the General Manager Regional Project Delivery of Queensland Rail. At the time, Mr Navin was acting in the role of Executive General Manager Regional Assets and Mr Nugent indirectly reported to him, with several layers of management between them.
Mr Navin first became aware of Mr Nugent on 23 June 2024 when he learned that he had sent multiple emails to some of the Respondent’s executives. These emails included a covert recording of a conversation dated 19 June 2024 between Mr Nugent and Mr Woolnough. Mr Navin listened to the recording and heard Mr Nugent use inappropriate language such as, “They’re fucking pulling their pud”, “You’re fucking kidding me, fuck off” and “I’ve been fucked over by Matt, fucked over by Gavin Anderson and the two managers above him couldn’t give two shits either”.
Having listened to the recording, Mr Navin prepared a recommendation to issue a show cause letter to Mr Nugent, noting that Mr Nugent had previously been issued a final warning on 14 September 2022 after he sent repeated, intimidating, threatening and harassing emails to staff of the Respondent.
Mr Navin considered that Mr Nugent had disregarded the final written warning that had been issued to him. Moreover, Mr Navin referred to an occasion on 28 July 2023 where explicit instructions were given by Mr Woolnough to Mr Nugent and fellow team members regarding the inappropriateness of making secret recordings, noting that such behaviour was disrespectful and unprofessional.
Mr Woolnough sent Mr Nugent’s responses to the show cause letter to Mr Navin. Although Mr Nugent’s response was submitted late, it was properly considered.
During the show cause process, Mr Navin received the following emails from Mr Nugent:
· 26 June 2024 at 10:57pm, stating “Who are you. I have nothing to do with you?”.
· 26 June 2024 at 11:16pm, forwarding an email sent by Mr Woolnough on 23 June 2024 performing a welfare check of Mr Nugent.
· 26 June 2024 at 11:17pm, forwarding an email sent by Mr Nugent to the Workers’ Compensation officer stating, “You are a very dangerous person who does not care about my safety. I have reported your conduct to Dave Woolnough. Do not contact me again.”
After considering Mr Nugent’s responses, Mr Navin was satisfied that termination of Mr Nugent’s employment was warranted. He took the following into account:
(a) Mr Nugent made and distributed secret recordings, which he did not refute.
(b) Despite claiming he was bullied, Mr Nugent failed to explain how he had been bullied. Mr Galea had determined that were instances where Mr Nugent raised bullying concerns, which were investigated and finalised. The recordings did not disclose evidence of bullying.
(c) While Queensland legislation may enable secret recordings, it was nevertheless highly inappropriate workplace behaviour done in defiance of previous directions from the Respondent.
(d) There was evidence of Mr Nugent seeking consent to record a meeting in August 2022, demonstrating that he knew consent was required to make a recording in the workplace.
(e) Mr Nugent received a final warning in September 2022 for sending inappropriate emails and was on notice that termination may occur if the behaviour was repeated.
(f) Mr Navin was not assured by Mr Nugent’s response that his conduct would not be repeated if his employment continued, as he had failed to acknowledge wrongdoing and show remorse.
(g) Mr Nugent failed to comply with the direction not to communicate with any personnel of the Respondent other than Mr Woolnough.
(h) The Respondent places an emphasis on creating a good workplace culture. The Respondent has bullying and harassment training, Code of Conduct refreshers and respect training, all of which Mr Nugent was aware and completed.
(i) Mr Nugent’s six-year length of service was relatively short, but long enough to understand his obligations under the Code of Conduct and Bullying and Harassment Standard. Mr Navin also considered Mr Nugent’s employment record, his disciplinary history, the fact there were no performance concerns, the impact of a dismissal and his re-employability taking into account his skillset.
(j) There was no way mitigate the risk of Mr Nugent secretly recording and/or sending inappropriate emails in the future given his disregard for the warnings and instructions given to him.
Mr Navin stated that he had no trust and confidence in Mr Nugent if he were reinstated, and fears that he would continue to make and distribute secret recordings in the workplace.
In response to the material filed by Mr Nugent, Mr Navin stated that he was satisfied that Mr Nugent had the evidence of the inappropriate/harassing emails and the secret recordings because they came directly from Mr Nugent in emails that he sent from his Queensland Rail email address. Mr Navin therefore considered Mr Nugent was aware of these recordings and emails and why his employment was at risk.
Mr Navin disagreed with Mr Nugent’s assertion that Mr Nugent’s communication improved post-20 June 2024. He noted that Mr Nugent continued to send inappropriate emails and covert recordings of the Respondent’s personnel between 21 June 2024 and 17 July 2024.
Mr Navin disagreed with Mr Nugent’s assertion that the covert recordings were provided by him as part of an investigation into his WorkCover claim. Mr Navin noted that the investigation was being handled by the Workers’ Compensation Regulator and not Queensland Rail. The recordings were sent to employees of the Respondent who did not have responsibility for the workers' compensation claim, nor the ability to influence it.
Mr Navin rejected Mr Nugent’s assertion that he was not informed that making secret recordings was against the Respondent’s policy. He noted that Mr Nugent had been provided multiple directions not to make and distribute secret recordings.
Finally, Mr Navin stated that it was appropriate for Mr Anderson to reject Mr Nugent’s attempt to provide a further response, as Mr Nugent chose not to attend the meeting on 15 July 2024.
Evidence given during the hearing
In cross-examination, Mr Nugent asked Mr Navin if he had listened to the covert recordings he had made. Mr Navin confirmed that he had. Mr Nugent noted that the recommendation to issue to him a show cause letter was made by Mr Anderson on 26 June 2024 and included Mr Anderson’s assertion that in the telephone call with Mr Woolnough, Mr Nugent had said, in reference to the Workers’ Compensation officer, that she is “dangerous” and “should be dead”.
Mr Nugent put to Mr Navin that he did not say, “should be dead”, and instead said “fuck me dead”.
I listened to the covert recording during the hearing and informed the parties that it sounded like “fuck me dead” as opposed to “should be dead”.
The recording was then played for all to hear. The following evidence was given:
Mr Navin: Yes, pause it there. 'Fucking dead, mate.'
Commissioner: You think it says, 'Fucking dead', not, 'Fuck me dead'?
Mr Navin:No, I didn't hear, 'Fuck me dead', we heard, 'Fucking dead, mate.'
Commissioner: You can't say 'we'?
Mr Navin: Or I heard - - -
Commissioner: This is you're being asked?
Mr Navin: I heard, 'Fucking dead, mate.' That's what I've heard.
Commissioner: 'Fucking dead, mate.' Okay, thank you. When you gave evidence earlier that you had heard, 'Should be dead', that evidence is not right?
Mr Navin:Based on that, that's correct that it's incorrect, that statement.
Commissioner: Thank you. You'd accept that the recommendation at page 623 you wouldn't agree now with Mr Galea's recommendation? He might say it's still, 'Should be dead', but that's not what you've heard?
Mr Navin:Not in that particular statement. Again, I don't know if there's other recordings that were played at that point. Again, there
was numerous recordings received during that period of time.
Commissioner: Thank you. Yes, Mr Nugent.
Mr Nugent: Mr – what's the name – Navin, would you think to try and find
out what was actually said before acting on a recommendation
(indistinct)?
Mr Navin:Based on the – yes, no, that's fair. Based on the numerous recordings there was evidence of language, et cetera, used during those recordings. And based on the relevance within the recommendation – there was multiple discussion points in the recommendation. I obviously reviewed based on the recordings, obviously advice that the recordings shouldn't have been taking
place, the fact that the recordings were being distributed to personnel that weren't involved in matters relevant to the case. There's been a raft of those decision – sorry, raft of obviously comments around that. That was where the decision was made. It was based on all evidence that was tendered to myself.
Mr Nugent:That's not what it says in the recommendation letter. You're acting and going forward with this show cause letter on this recommendation where it says – you quote, 'Should be dead.' Is that fair to me knowing now that it's inaccurate?
Mr Navin:Whether that term from that recording – I don't know if it's from that recording or any other recording that's been played to me. But in terms of the recommendation that's been provided was based on all the evidence that I had also received in the letter as well that's been put to you. So it wasn't just based on those two comments that were put to me, it was based on - - -
…
Mr Nugent:But why don't you know about all the recordings before you go ahead?
Mr Navin:I'm aware of all the recordings before I go ahead. All the recordings that were sent to not only myself but executive members of the committee that are not involved in the case, I've obviously had evidence submitted to me for review as a part of an overarching recommendation.
Mr Nugent:You say you're aware of the recordings. Have you listened to them all?
Mr Navin:I've listened to the majority. Well, I'm pretty sure I've listened to them all but, again, I'm not sure how many others may have been sent.
Evidence of Mr Gavin Anderson
Mr Anderson is employed by the Respondent as the General Manager of Regional Assets South.
Mr Anderson stated that Mr Nugent has a history of sending inappropriate and harassing emails. On 14 September 2022, Mr Anderson issued a final warning to Mr Nugent for sending approximately 20 emails to Mr Scott Reidel, Head of SEQ, Mr Wayne Prosser, General Manager, Network Operations North, Ms Kat Stapleton, Acting Chief Executive Officer, and others. Mr Anderson stated that these emails were “inappropriate, harassing and unprofessional”, as Mr Nugent claimed that Mr Riedel and Mr Prosser had stolen his income, caused his wife to be injured by their action, and stated that he would sack both of them if he could.
In considering whether to issue a final warning, Mr Anderson considered the fact that Mr Nugent expressed during the investigation that he had made a mistake, sought assistance and would not repeat his behaviour.
On 21 June 2024, Mr Anderson received an email from Mr Nugent containing a recording of a conversation between Mr Nugent and Mr Woolnough. The recording pertained to Mr Nugent’s workers’ compensation claim. It was at this time that Mr Anderson learned that Mr Nugent had again been sending inappropriate emails. When he listened to the recording, he noted Mr Nugent’s language was inappropriate and not in line with the Respondent’s Code of Conduct. After listening to the recording, Mr Anderson was concerned Mr Nugent could potentially harm himself or a colleague.
Mr Woolnough informed Mr Anderson that he was unaware that his conversation on 19 June 2024 had been covertly recorded. Mr Anderson considered this to be highly disrespectful behaviour towards Mr Woolnough. Mr Anderson stated that this was also inconsistent with the Respondent’s Code of Conduct.
On 25 and 26 June 2024, Mr Anderson received further emails from Mr Nugent containing recordings of conversations between Mr Nugent and Mr Thompson, Mr Woolnough and Ms Ann Graham. Due to their length, Mr Anderson only partly listened to these recordings.
Mr Anderson and Mr Nugent met on 25 June 2024 via Microsoft Teams. The purpose of the meeting was to perform a welfare check of Mr Nugent, as he had expressed concerns about his wellbeing and the potential for self-harm in one of the recorded conversations. During the meeting, Mr Anderson directed Mr Nugent to undertake alternative duties until he was well enough to resume his normal duties. Mr Anderson gave this direction after consulting with Mr Galea and Ms Emma Grigore, Senior Manager Health Safety and Wellbeing, and after considering his duty of care for the safety of Mr Nugent and other employees. Mr Anderson noted that Mr Nugent was ordinarily required to work with significant electrical voltage, which can pose a serious risk to life if a person is shocked.
On 26 June 2024, Mr Anderson received a recommendation prepared by Mr Galea which summarised the allegations against Mr Nugent and proposed to issue a show cause letter. Given the final warning previously issued to Mr Nugent in September 2022, Mr Anderson considered that Mr Nugent’s most recent conduct was inconsistent with the assurance he gave following the warning that he would not repeat his behaviour. Moreover, Mr Anderson noted that he asked his leadership team to communicate an ethics update on covert recordings on 25 July 2023, which Mr Nugent received on 28 July 2023. Mr Anderson was therefore of the view that Mr Nugent was aware that he was required to obtain consent before making recordings, and that secret recordings were disrespectful and unprofessional. Accordingly, Mr Anderson endorsed the show cause recommendation.
On 5 July 2024, Mr Galea prepared a summary for consideration as to whether Mr Nugent’s employment should be terminated. Mr Anderson reviewed the termination recommendation and concluded that he had no confidence that Mr Nugent would cease his behaviour, given he had been told to stop multiple times in the past. Mr Anderson saw no other controls the Respondent could implement to prevent the risk of Mr Nugent repeating his conduct.
Mr Anderson was concerned Mr Nugent had secretly recorded many people, including their own conversations. Mr Nugent had not shown remorse for his actions. Mr Anderson felt uncomfortable knowing that Mr Nugent could be recoding any future conversation they may have. Mr Anderson was aware of his obligations as General Manager to maintain a safe workplace for all workers, which includes protecting their psychological safety.
Accordingly, Mr Anderson endorsed the termination recommendation on 10 July 2024.
Mr Anderson denies that at the meeting with Mr Nugent on 25 June 2024, the matter was simply resolved. Mr Anderson considers the meeting was largely a welfare check. It is noted that following the meeting, Mr Nugent sent further emails to a large number of employees, including covert recordings.
Mr Anderson noted that in the material filed in these proceedings, Mr Nugent included a secret recording of their meeting on 25 June 2024. Mr Anderson did not know this recording existed at the time of Mr Nugent’s dismissal.
In response to Mr Nugent’s comments that he was not informed that making covert recordings was against company policy, Mr Anderson stated that Mr Nugent had been given multiple directions that the Respondent considered secret recordings unprofessional and disrespectful and that they had the potential to affect employees’ mental health. Mr Anderson therefore stated that Mr Nugent’s comments demonstrate that he willingly chose to disregard instructions given to him.
With respect to dismissing Mr Nugent on 15 July 2024 in his absence, Mr Anderson noted that Mr Nugent had already provided numerous responses by this time and had previously been given a deadline of 1 July 2024. A decision had been made by Mr Navin prior to the 15 July 2024 meeting that Mr Nugent would be dismissed, and the purpose of the meeting was to issue Mr Nugent a termination letter.
Mr Anderson considered that reinstatement of Mr Nugent would be inappropriate, given that an employment relationship is built on trust and confidence. He would have no trust or confidence that Mr Nugent would not repeat his past behaviour if he were reinstated, given the warnings and directions that were given to him. Further, Mr Anderson noted that Mr Nugent has shown no remorse for his actions and has shown he was not willing to comply with the Respondent’s instructions. Mr Anderson stated he feared that colleagues and leaders would always feel the need to be guarded in any conversations with Mr Nugent knowing they could be recorded. If Mr Nugent were reinstated, Mr Anderson stated that he would have concerns for his own psychological safety and doubts over his ability to discharge his obligation in providing a psychologically safe workplace for workers.
Evidence given during the hearing
In cross-examination, Mr Nugent put to Mr Anderson that in the meeting of 25 June 2024, he did not raise with him any concern about making covert recordings. Mr Anderson agreed, stating that the meeting was held to deal with concerns regarding Mr Nugent’s mental health. He said he wanted to remove Mr Nugent from working in high voltage areas and wanted to keep him in the depot until he potentially received assistance for his mental health.
Mr Anderson stated that he had listened to around 10 recordings made by Mr Nugent. If he was incorrect about Mr Nugent having said “should be dead”, he apologised. He noted that Mr Nugent said, “She’s fucking dangerous” in respect of the Workers’ Compensation officer.
Evidence of Mr Dane Woolnough
Mr Dane Woolnough is employed by the Respondent as the Trackside System Coordinator. He was Mr Nugent’s supervisor, acting in the role of Asset Manager Near North Coast, during the events leading to Mr Nugent’s termination.
On 23 August 2022, Mr Woolnough was involved in a meeting in relation to the investigation process for Mr Nugent’s final warning in September 2022. Mr Nugent explicitly requested consent from all participants to record the meeting prior to it commencing. Upon Mr Nugent making the request, Mr Woolnough felt uncomfortable, as the meeting was being held to deliver a final written warning to Mr Nugent. He considered that Mr Nugent was trying to catch him or Mr Thompson on something they may have said.
On 28 July 2023, Mr Woolnough shared via email an ethics update from Mr Galea at [13]. It covered the Respondent’s position on covert recordings. Mr Nugent never reached out to him with any questions or concerns regarding the Ethics update email.
On 17 June 2024, Mr Woolnough was contacted by Ms Helen Creagh regarding concerns about an email that Mr Nugent had sent to his Workers’ Compensation case manager at the time. The case manager reported to Ms Creagh. The email stated:
“[name], You are a very dangerous person who does not care about my safety.
I have reported your conduct to Dane Woolnough.
Do not contact me again.
Michael Nugent.”
Having regard to the Respondent’s values, behaviours and requirements under the Code of Conduct, he felt Mr Nugent's email was plainly inappropriate and perceivably intimidating and threatening towards the case manager. He telephoned Mr Nugent on 19 June 2024 and spoke to him regarding this matter. During the conversation, Mr Nugent was quite emotive about the situation and used inappropriate language about his colleagues and how the situation had allegedly been poorly managed. The conversation has been attempted to be transcribed at [42].
Mr Woolnough warned Mr Nugent about his conduct and said he would need to start afresh with a new case manager. He then forwarded the email to Mr Nugent at [43].
On or around 22 June 2024, Mr Woolnough became aware that Mr Nugent had sent the covert recording of their telephone conversation on 19 June 2024 to Mr Woolnough’s leaders including Mr David Marchant, Queensland Rail Chairperson and Ms Rebecca Munn, Group Executive, People, Safety and Sustainability. Mr Woolnough was not aware that Mr Nugent had recorded this conversation. Once he became aware that Mr Nugent had covertly recorded the conversation, he had a hesitance to telephone Mr Nugent or pick up a call from him.
On 23 June 2024, Mr Woolnough attempted to contact Mr Nugent by telephone to perform a welfare check, leaving a voicemail and sending a follow up email at 8.50am.
On 25 June 2024 at 11.28pm, Mr Nugent emailed a new recording to him, together with other managers of the Respondent. The recording was of a conversation between Mr Nugent and Mr Thompson on 1 December 2022.
On 26 June 2024 at 12.02am and 12.45am, Mr Nugent sent further emails, attaching recordings of separate conversations. One of the recorded conversations was between Mr Nugent and Mr Woolnough on 12 July 2023. Again, Mr Woolnough had not been aware that Mr Nugent had covertly recorded this conversation. Mr Woolnough stated he was uncomfortable when he woke on the morning of 26 June 2024 to see that Mr Nugent had sent a covert recording to senior people, including Mr Marchant and Ms Munn. It felt to him that Mr Nugent was trying to catch him out, and he questioned what he had said and whether it had been the right or wrong thing to say.
Mr Woolnough has wondered how many other times Mr Nugent had recorded himself and others without their knowledge. This made him feel uncomfortable. He also considered that Mr Nugent had disregarded his instruction in August 2023, noting that covertly recording colleagues is disrespectful and unprofessional.
Mr Woolnough was aware of and had read the show cause letter that was issued to Mr Nugent on 26 June 2024. Mr Woolnough’s role in the show cause process was to be Mr Nugent's point of contact and receive any responses to the show cause letter and provide this to Mr Navin for his consideration.
Between 27 June 2024 and 2 July 2024, Mr Nugent provided four separate responses to the show cause letter. The fourth response was provided on the morning of 2 July 2024, one day after the due date of 1 July 2024.
Mr Woolnough is aware that Mr Nugent seeks reinstatement. He considers it is inappropriate for the following reasons:
· He fears that retaliation or retribution for his part in this process would make him targeted and that he would be set up to fail by Mr Nugent. This would also impact the team as they would feel that there would be no consequence for their actions for not following policy and procedure.
· Staff would be focused on the possibility of being recorded via voice or video such that they may not fully concentrate on the task at hand while working with a 25000v overhead power system and suspended loads and stored energy, and that a critical step could be missed, putting themselves and others in harm’s way.
· He has tried to follow the Respondent’s policies and procedures to the best of his ability, however if Mr Nugent returns, he fears something that might be said in passing, or off-record by himself or others would be documented as some form of evidence without context.
Evidence given during the hearing
In evidence given during the hearing, Mr Woolnough was asked why he didn’t follow up with Mr Nugent to ensure he understood the email sent to him in July 2023 regarding not making recordings. He stated that employees were invited to seek clarification if they did not understand the email. He noted the distinction between this particular email and safety critical emails where employees are required to sign off to acknowledge receipt.
In answering a question from me, Mr Woolnough stated that if he had been asked to be recorded during the conversation with Mr Nugent on 19 June 2024, he would likely not have agreed.
Evidence of Mr Adrian Galea
Mr Galea is employed by the Respondent as the Manager of Ethics and Investigations. The primary responsibility of his position is to lead a team of Employee Relations Advisers who are responsible for the management of workplace investigations and providing advice on disciplinary processes. He is responsible for managing his own case load of workplace investigations and advising on disciplinary processes pertaining to misconduct and corrupt conduct.
Mr Nugent was trained in the Code of Conduct, completing a refresher annually, and also completed the following training focused on bullying and harassment:
· 28.12.2022 It's a Matter of Respect (Converge Int.)
Mr Thompson noted the consistent patterns of recordings and Mr Nugent’s complete disregarded for his and the leadership team’s attempts to warn and caution him against this conduct. Mr Thompson concluded that he had no trust or confidence that Mr Nugent would not continue to make recordings in the workplace of himself and other Respondent colleagues and then send these at large, further harassing other team members. Mr Thompson considered that he and his team would feel constantly on guard in any interactions with Mr Nugent, given their lack of trust that he could be secretly recording their conversations. Mr Thompson also had serious concerns this would create a psychological risk for him and his team within their safety-critical work context.
Closing submissions
On 5 December 2024, both parties filed written closing submissions. I have had regard to the parties’ written submissions and do not consider it necessary to reproduce them in this decision.
CONSIDERATION
A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:[1]
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer act, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter.[2]
s.387(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)
When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:
“In its context in s.170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1) At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based on upon the operational requirements of the employer’s business. Further, in consideration whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly’.”
However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[3]
Mr Nugent was appropriately counselled in 2022 about his offensive conduct in sending threatening and intimidating emails to colleagues. He gave an undertaking in February 2022 that he would cease his behaviour yet continued to send offensive and harassing emails for several more months. He became fixated on matters that had occurred more than 10 years earlier.
Mr Nugent needed to be stopped. He was accusing colleagues of wage theft from him when he worked at Aurizon approximately 10 years earlier. He was continually harassing those employees by sending them offensive emails late at night.
When formally interviewed in May 2022 about his conduct, Mr Nugent oscillated between suggesting the emails he was sending were benign, to stating that he apologises for sending them. He explained that he had been struggling for a decade over the issue and that is why he was sending them.
He also sought to rely on the alleged bullying by an Aurizon employee in Rockhampton in February 2020, not reported until May 2022, and emails sent by a departing employee in March 2022 for his conduct. The one-time incident in 2020 with an employee who does not work for the Respondent seemingly caused Mr Nugent so much distress it took him over two years to report it, all the while he was being investigated over improper conduct. The departing employee who sent a bullying email about him left the employment of the Respondent in March 2022, approximately one week after sending the offensive email. While Mr Nugent remained distressed about these two incidents, he was no longer in contact with these two individuals, however he could not move on.
Without being issued the written warning in September 2022, and being investigated from May 2022, I am confident that Mr Nugent’s conduct would have continued, and his colleagues would have continued to have been harassed by him.
However, Mr Nugent was not satisfied with the written warning having been issued to him. He then went on a crusade to challenge the warning on the basis that the people he had sent the offensive emails to had not formally complained about him in writing, or not expressly stated that they felt bullied by him.
He was informed by Ms Graham that the many people who complained about him to management wanted him to stop sending harassing and offensive emails to them. It is an uncomplicated matter:
there was proof of his harassing and offensive emails repeatedly sent late at night;
the recipients brought them to the attention of management and asked that Mr Nugent cease sending the emails;
Mr Nugent was asked not to send any further harassing and offensive emails;
he committed in February 2022 not to send any further harassing and offensive emails;
he continued to send harassing and offensive emails;
the issue was investigated; and
he was warned.
Mr Nugent wanted to agitate it, asking why the people to whom he had sent harassing and offensive emails had not made formal complaints. He was still carrying on about this issue in July 2023 when he covertly recorded Ms Graham and considered that there was a concession that the individuals had not made formal complaints, so there was nothing wrong with his behaviour.
Mr Nugent improperly covertly recorded the conversation he had with Ms Graham in July 2023, 10 months after having been issued the written warning. He never gave her the opportunity to consider whether she wished for the conversation to be recorded. Ms Graham revealed very personal details to Mr Nugent. More than one year later, Mr Nugent shared that covert recording with the Respondent’s Chair and other senior management, without Ms Graham’s consent. Mr Nugent’s actions constitute serious misconduct and a considerable betrayal of the trust and confidence one expects from their colleague.
In a Full Bench decision in Schwenke v Silcar Pty Ltd,[4] it was found on appeal that Commissioner Cloghan at first instance properly determined that there was a valid reason for the dismissal including:
“...the Appellant had made the recording in secret and that this action was contrary to his duty of good faith and fidelity to the employer and undermined the trust and confidence required in the employment relationship. This action, in itself, was grounds for summary dismissal.”
In Tawanda Gadzikwa v Australian Government Department of Human Services,[5] Deputy President Colman observed the following, undisturbed on appeal:
“[83] Unless there is a justification, I consider the secret recording of conversations with co-workers to be highly inappropriate, regardless of whether it may also constitute a criminal offence in the relevant jurisdiction. The reason it is inappropriate is because it is unfair to those who are secretly recorded. They are unaware that a record of their exact words is being made. They have no opportunity to choose their words carefully, be guarded about revealing confidences or sensitive information concerning themselves or others, or to put their best foot forward in presenting an argument or a point of view. The surreptitious recorder, however, can do all of these things, and unfairly put himself at an advantage. Moreover, once it is known that a person has secretly recorded a conversation, this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious and vigilant. This is potentially corrosive of a healthy and productive workplace environment. Generally speaking, the secret recording of conversations with colleagues in the workplace is to be deprecated.
…
[86] There is nothing to suggest to me that the Department has acted improperly in its dealings with Mr Gadzikwa. In light of this, there is nothing that would warrant Mr Gadzikwa’s secret recording of co-workers. Accordingly, this conduct was inappropriate. Clearly, this conclusion would have told strongly against reinstatement, had I found his dismissal to be harsh, unjust or unreasonable. Further, in a different setting, unconfined by the parameters of the PS Act, it would have been open for me to find this conduct to constitute a separate valid reason for dismissal (the Commission is not confined in its consideration of s 387(a) to valid reasons relied on by the employer).”
Curiously, in his closing submissions, Mr Nugent referenced a decision of Deputy President Saunders in Dylan Thomas v Serco Australia Pty Limited,[6] suggesting that the decision supported covert recordings as being justified when used to document bullying. That is not an accurate reflection of the decision, and in fact the Deputy President found that the covert recording made by Mr Thomas was a valid reason for the dismissal. The Deputy President stated:
“[43] I am satisfied that Mr Thomas’s conduct in secretly recording the meeting was contrary to his duty of good faith and fidelity to his employer and undermined the trust and confidence required in the employment relationship. It provided Serco with a sound, defensible and well-founded reason to terminate Mr Thomas’s employment.”
The decision was not disturbed on appeal.[7]
Mr Nugent submitted that the Respondent had tolerated his acts of making covert recordings and passing them onto others for their consideration. While Mr Nugent had shared some covert recordings in 2023, this escalated around the time he received the show cause letter in June 2024. Despite being instructed not to send any emails to anybody other than Mr Woolnough, Mr Nugent scattered his covert recordings to many, including the Respondent’s Chair. He sent his emails late at night and without the permission of those whom he had covertly recorded.
The evidence of some of the witnesses is that they felt anxiety when they woke to see that a covert recording made of them many months ago, even years ago, had been shared with very senior people within the Respondent’s business. I accept that it would be distressing to try and think back to what had been discussed and wonder if a word had been improperly stated when one party knows the conversation is being recorded but not the other.
I do not accept that because Mr Nugent had sent covert recordings to some Respondent employees and externally to Clarity Workplace Solutions, the Respondent condoned the making of covert recordings in the workplace. I consider that senior management did not have a complete awareness of Mr Nugent’s conduct in 2023.
Mr Nugent’s act of recording Mr Woolnough on 19 June 2024 during his distressing and expletive-laden call was, I accept, an attempt for Mr Nugent have Mr Woolnough say things to support him in his assertion that the Workers’ compensation officer was ‘dangerous’. He wanted Mr Woolnough to agree with him and to be able to present the recording to others in the future, which he did. Mr Nugent’s statements during the conversation were completely inappropriate and threatening. He called the officer dangerous, even suggesting that her actions could have resulted in him killing himself.
He stated to the effect that he hoped his email was considered threatening. He stated that she should be sacked.
Mr Nugent’s ongoing conduct caused the Respondent to be seriously concerned about his ability to work in high-voltage areas due to his mental distress. He was relieved of that responsibility on 25 June 2024. The following day he was relieved of all duties when he was asked to show cause why he should not be dismissed.
In the show cause letter, Mr Nugent was accused of acting unprofessionally by sending intimidating/threatening or harassing emails/recordings to the Respondent’s personnel, together with making covert recordings and then inappropriately distributing the recordings.
In his show cause response, Mr Nugent acknowledged that he had sent covert recordings to Clarity Workplace Solutions, the Office of Industrial Relations, management of the Respondent and his support persons.
Mr Nugent did do what was alleged by the Respondent. There is simply no doubt about it. The evidence is clear; all of the emails were available to Mr Nugent to facilitate his response to the show cause letter. Mr Nugent claims that he was given insufficient evidence of the alleged conduct, however it was all in his sent emails if he wanted to reflect on what he had sent late at night across many nights.
Mr Nugent submitted that his dismissal was not in accordance with the Respondent’s Discipline Process. Having reviewed the document, I am satisfied that it is. Mr Nugent was given an opportunity to respond to the show cause letter. He did, in writing, repeatedly, adding to his responses as he went, and well beyond the timeframe given by the Respondent. The Discipline Process permits termination of employment after a consideration of the employee’s response.
Mr Thompson’s email response of 8 December 2021 is at [33]. He informed Mr Nugent not to send any further harassing emails. In the second email, Mr Thompson informed him that recordings were not permitted and could be considered a breach of the Code of Conduct. He requested Mr Nugent delete the recording, which he agreed to do.
Mr Nugent was also informed by Mr Woolnough in July 2023 not to make recordings.
I suggest that Mr Thompson could have been somewhat clearer in his response to Mr Nugent, yet he did inform him that recordings are not permitted and could be considered a breach of the Code of Conduct. In my view, even if Mr Nugent was not expressly informed that it was prohibited in the Respondent’s workplace to covertly record colleagues without a very substantial sound and lawful reason to do so, it is an action that he ought to have known lacks honesty and integrity. It is unfair to the other party or parties. Given his extensive propensity to record conversations, in my view it is sneaky, deceitful and unfair conduct, especially when Mr Nugent was preparing for the right moment to later disseminate the covert recordings to others without the permission of the party he had recorded.
Mr Nugent has suggested that in 1993 he was trained or informed to make covert recordings. In 1993, people didn’t have recording devices in the form of smart phones in their pocket or sitting on desks, with a recording easily transmittable by way of attaching to an email. Covert recordings in 1993 might have taken the form of a Walkman, a large cassette recorder or a body-worn wiretap. It was not appropriate to make covert recordings in the workplace in 1993 and nor is it in 2024 unless in very exceptional circumstances.
In respect of Section 2.3.1 of the Code of Conduct, I am satisfied that in making repeated covert recordings of colleagues, Mr Nugent did not treat others fairly, courteously or respectfully. He did not conduct himself in an ethical, professional and honest manner.
When Mr Nugent forwarded on covert recordings to others, he infinitely magnified his breach of the Code of Conduct and had no regard to the feelings of those whom he had covertly recorded.
When Mr Nugent sent to the Workers’ Compensation officer his offensive email, he breached the Respondent’s Bullying and Harassment Standard. When he forwarded his offensive email to multiple recipients late on 26 June 2024, after he had received the Show Cause letter, he continued to breach the Respondent’s Bullying and Harassment Standard.
Mr Nugent’s conduct was not a once-off; it was repeated. In answering questions from me, Mr Nugent confirmed that he elected to record many, many conversations. There was no sound basis to do so; in none of the conversations was he at any risk to his health and safety, nor was he covertly recording particular, discreet conversations because he was of the reasonable expectation those particular conversations would evidence a crime or offence.
I am satisfied that there are valid reasons for the dismissal in respect of Mr Nugent’s conduct.
s.387(b) – Whether the person was notified of that reason
Mr Nugent was notified of the reasons for the dismissal in the termination letter dated 15 July 2024.
s.387(c) – Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
Mr Nugent was issued with a Show Cause letter on 25 June 2024. He submitted that he could not have been entirely sure which emails resulted in him being issued the Show Cause letter. Mr Nugent had them all at hand if he opened up his sent emails.
Mr Nugent sent numerous responses to the Show Cause letter. He was directed to respond by 1 July 2024. He continued to respond up until 9 July 2024. He sent six responses.
On 5 July 2024, Mr Galea prepared a report for consideration, taking into account Mr Nugent’s responses to-date. Mr Galea recorded 20 bullet points Mr Nugent wanted to be considered by the Respondent. Mr Galea then weighed up Mr Nugent’s responses with expectations the Respondent has with respect to appropriate workplace conduct. Mr Galea concluded that Mr Nugent’s behaviour had been inappropriate, and he had not shown any remorse. Mr Galea considered that there was no assurance from Mr Nugent that he would not repeat his behaviour.
I have had regard to the fact that in the Show Cause recommendation prepared by Mr Galea, he gave an account of one of the recordings where Mr Nugent was heard to have said “should be dead”. This was not put to Mr Nugent in the Show Cause letter, nor was any regard had to it in the termination recommendation of 5 July 2024, or in the termination letter of 15 July 2024.
During the hearing it was accepted by the Respondent that Mr Nugent did not say “should be dead”; rather, he said “fucken’ dead”.
I do not think much turns on this issue. Mr Nugent was not dismissed because it was suggested he said that the Workers’ Compensation officer ‘should be dead’.
I note that the report prepared by Mr Galea was dated 5 July 2024 and Mr Nugent continued to send responses beyond this date, on 8 and 9 July 2024. I have considered the further responses and am of the view that they do not contain significantly material information which would have prejudiced Mr Nugent if his responses had not been taken into account by the Respondent.
s.387(d) – Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person. The Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542] states the following:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”
Mr Nugent contends that at the dismissal meeting of 15 July 2024 which he did not attend, he wasn’t permitted to have Mr Roeser attend. He was permitted to have Mr Peters attend. The meeting was not set to afford Mr Nugent any further opportunity to respond; the meeting was set to inform him of his dismissal.
s.387(e) – If the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal.
The dismissal was not related to unsatisfactory performance; it was for misconduct.
s.387(f) – Whether the respondent’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed
The Respondent is not a small business and has a sophisticated team of human resource management specialists.
s.387(h) – Other matters
I have had regard to the fact that despite being informed in the Show Cause letter not to communicate with anybody else in the workplace about the process, Mr Nugent continued to send to numerous people further emails containing covert recordings. He expressly disobeyed a direct instruction not to send further emails and recordings
I have had regard to the fact that Mr Nugent did not show any remorse in respect of his conduct.
I am of the view that had the dismissal not taken effect, Mr Nugent would be highly likely to continue the behaviour. He continued to send an email and covert recording to the Respondent’s Chair following his dismissal. Mr Nugent had been formally warned in 2022 about his conduct but chose to continue the conduct in respect of sending an offensive email in 2024.
I am of the view that Mr Nugent broke the trust and confidence required in the employment relationship, resulting in the working relationship being irreparably damaged.
I have had regard to Mr Nugent being 61 years of age at the time of the dismissal and his suggestion that he is effectively prevented from working at another rail employer, Aurizon, hence severely limiting his options with well-paid employment with both the Respondent and Aurizon.
Conclusion
I have determined that there were valid reasons for the dismissal.
I have determined that Mr Nugent was notified of the reasons for the dismissal.
I have determined that Mr Nugent was provided with an opportunity to respond to the reasons related to his conduct.
There was no unreasonable refusal by the Respondent to allow Mr Nugent a support person.
The dismissal was not in respect of poor performance; it was for misconduct.
The Respondent’s enterprise is not small and has dedicated human resource specialists.
The dismissal was not disproportionate to the conduct engaged in by Mr Nugent. I find that the dismissal was not harsh, unjust or unreasonable.
The application is dismissed. An order [PR785529] will be issued with this decision.
COMMISSIONER
Appearances:
M Nugent, Applicant.
N Garde and U Pala, for the Respondent.
Hearing details:
2024.
Video using Microsoft Teams.
8 November.
Final written submissions:
5 December 2024.
[1] (1995) 185 CLR 410, [465].
[2] Sayer v Melsteel [2011] FWAFB 7498, [20].
[3] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[4] [2013] FWCFB 9842, [33].
[5] [2018] FWC 4878.
[6] [2023] FWC 674.
[7] [2023] FWCFB 95.
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