Michael Painter v Equiset Construction Australia Pty Ltd - [2014] FWC 4535

[2014] FWC 4535

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Painter
v
Equiset Construction Australia Pty Ltd
(U2013/17172)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 14 JULY 2014

Application for relief from unfair dismissal; summary dismissal for serious misconduct; after acquired knowledge also relied upon to justify dismissal; whether valid reason for dismissal; whether dismissal harsh, unjust or unreasonable; there was a valid reason for the dismissal; applicant was not unfairly dismissed; application dismissed.

Introduction

[1] Michael Painter (Applicant) began an initial period of engagement as an Assistant Contracts Administrator with Equiset Construction Australia Pty Ltd (Respondent) in or about January 2013 1. The initial engagement with the Respondent was on a temporary basis that had been arranged through a labour hire provider Design and Build Pty Ltd2.

[2] On or about 2 May 2013 the Applicant accepted an offer of full-time employment with the Respondent as an Assistant Contracts Administrator, which was subject to the terms of his 457 Visa 3. The Applicant’s employment was terminated summarily on 28 November 2013 on the ground of serious misconduct relating to “harassment of office staff” and thereby contravening the Respondent’s bullying, discrimination and harassment policy4. On 9 December 2013 the Applicant made an application for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (Act).

[3] There is no dispute about the initial matters, which are set out in s. 396 of the Act, and which I must decide before considering the merits of this application. I am satisfied that the application was made within the period required in s. 394 (2), that the Applicant is protected from unfair dismissal within the meaning of s. 382, that the Small Business Fair Dismissal Code does not apply and that the Applicant’s dismissal was not a case of genuine redundancy.

[4] That leaves for determination the merits of the application. I have concluded that the dismissal of the Applicant by the Respondent was not harsh, unjust or unreasonable and therefore the application is dismissed. These are my reasons for so concluding.

Factual background, context and findings

[5] There were a number of incidents involving the Applicant and female employees of the Respondent on which the Respondent relied, or to which reference was made, during the course of the proceedings to justify the Applicant’s dismissal. These are discussed below.

Chantelle Roth incident

[6] The circumstances surrounding the Chantelle Roth incident are sketchy and imprecise and the state of the evidence is less than satisfactory. It seems however common ground that most of the behaviour in which the Applicant is said to have engaged occurred outside of work.

[7] On 18 April 2013 Mr Roy Veal, who at that time was employed by the Respondent as a commercial manager 5 told Ms Carolyn Yencken, the Human Resources Manager of the Respondent, that he wanted to offer the Applicant full-time employment and to sponsor him on a 457 Visa6. Mr Veal’s employment with the Respondent ended in or about October 20137. Ms Yencken met with the Applicant on 22 April 2013 at which time she discussed with the Applicant the 457 Visa nomination and related processes and indicated to the Applicant that she would also begin preparation of a contract of employment8.

[8] On 23 April 2013 Ms Yencken had a conversation with Mr Neal Collins, the Respondent’s CFO 9. During that conversation Mr Collins told Ms Yencken that Ms Roth, who had been employed for a short period in or about March 2013, as a temporary receptionist with the Respondent, had complained to Ms Bernadette Karge, another employee of the Respondent, that the Applicant had been harassing Ms Roth10. Initially Ms Yencken spoke to Ms Karge to ascertain why the ‘complaint’ had not been reported to Ms Yencken11. Ms Karge told Ms Yencken that Ms Roth did not want “to make a big deal about it and she was embarrassed”12.

[9] Later that day Ms Yencken contacted Ms Roth by telephone 13. Ms Yencken made notes of the telephone conversation14. The notes taken by Ms Yencken record that Ms Roth said that the initial interactions with the Applicant were friendly and that she had invited him out for drinks with her girlfriends after work15. The notes records that Ms Roth said that:

“Over the course of the week the chatting continued, he asked:

M: what do you want

C: what you mean?

M: do you want me to take home?

C: if you want to know me further then take me out for a drink/coffee & we can take it from there.

When I asked what he wanted he said “I want you say yes to anything”. i.e “Take her home & have his wicked way with her.”

Text/verbal conversations continued & she said “I am not like that”.

Drinks night got changed to ‘the Deck’, Equiset guys there too on either side of the bar but only said hello, nothing happened.

After Easter he sent her a text. She told him know, via text, told him to f/off, found him f/off disgusting, & the conves/texting stopped.

End of contact. [& Chantelle’s work at the Equiset finished]” 16

[10] The notes taken by Ms Yencken also record that Ms Roth had deleted the text messages sent by the Applicant 17, that she had shown Ms Karge some of the text messages18 and that she found the Applicant’s behaviour towards her “annoying”19 and felt “uncomfortable around him”20. The notes also record that Mr Roth told Ms Yencken that she did not tell Alliance (the labour hire/agency provider which had placed Ms Roth with the Respondent), about the Applicant’s behaviour, because she just wanted to forget it21.

[11] Ms Yencken also asked Ms Roth about the outcome that she was seeking. The notes record that Ms Roth said the following:

“Just give him a warning; maybe he thought I was giving him the vibe, but I told him I wasn’t like that. I would be happy for him to be given a warning, I don’t want his job opportunity to be taken away if you are happy with his work to date.” 22

[12] Neither Ms Roth nor Ms Karge was called to give evidence.

[13] Ms Yencken gave evidence that following her telephone conversation with Ms Roth, Ms Yencken discussed Ms Roth’s complaint with Mr Collins and Mr Veal 23. Ms Yencken says that during her discussion with Mr Veal, she told Mr Veal that she did not think the Applicant should be employed until complaints about the Applicant’s behaviour, including those made by Ms Roth24, had been resolved25. Ms Yencken said that Mr Veal took a different view and insisted that the Applicant be employed on a permanent basis and so Ms Yencken proceeded to finalise an employment contract for the Applicant26. Mr Veal agreed that that was the case27.

[14] Ms Yencken gave evidence that on 2 May 2013 she had met with the Applicant during which she discussed with and put to the Applicant, the substance of the complaints about the Applicant’s behaviour that have been made by Ms Roth. Ms Yencken says that the Applicant “brushed aside the allegations and accused Ms Roth of chasing him and engaging in the same type of behaviour. He did not, however, deny any of the alleged action took place. He just tried to downplay what had happened.” 28 Ms Yencken’s evidence about the Applicant’s response during her meeting with him on 2 May 2013 is consistent with the explanation that the Applicant gave during his evidence before me29.

[15] Ms Yencken said that after discussing Ms Roth’s complaint with the Applicant, she proceeded to give to the Applicant a contract of employment and explained to him the terms of the contract the position description and the content of the Respondent’s induction handbook 30. During this explanation, Ms Yencken gave evidence that she explained the Respondent’s bullying, discrimination and harassment policy and reiterated that the Applicant’s behaviour towards Ms Roth “will not be tolerated and if any of this happens again he will be out (meaning dismissed), so consider this a first and final warning”31. Ms Yencken said that the complaint and warning would be recorded on his personnel file but it would be kept confidential and that the Applicant thereafter signed off on the Respondent’s induction handbook and the contract of employment32. Ms Yencken also made a contemporaneous note of her conversation with the Applicant, which records the following:

“2/5/13 I advised Michael during his induction and going through our BHV policy that this behaviour will not be tolerated and any of this happens (H) again he will be out, so consider this 1st & final warning. Michael asked if it will go on his file and I said yes, but it will be kept confidential” 33.

[16] The Applicant did not dispute the fact the Ms Yencken had explained the Respondent’s bullying, discrimination and harassment policy to him during their meeting to discuss the contract of employment that was being offered. The Applicant did not dispute that a conversation about Ms Roth’s complaint occurred with Ms Yencken on 2 May 2013 but he disputed that he had received a warning about the conduct towards Ms Roth from Ms Yencken. The Applicant’s evidence on this point is reproduced below:

Mr Painter, Ms Yencken has stated in her witness statement that Ms Roth informed her of this, so are you saying that Ms Roth has lied to Ms Yencken?---If Ms Roth was here to be a witness and she said - I could cross-examine her, I can’t do that, I’m saying that’s not what happened how it played out. There were flirtatious texts, some of them of a sexual nature but not to that extent from both parties.

So you’re saying that as per the witness statement of Carolyn Yencken Ms Roth has lied to her?---Correct.

So even though Ms Roth was no longer employed by Equiset at the time and had absolutely nothing to gain by saying this to Carolyn Yencken she’s lied?---Again I asked for proof from Carolyn Yencken when I in there, can you show me the text messages? I didn’t have many more. The response I said to Carolyn, “Is this anything formal?” “No, I just want to hear your side of the story.” And I was like, “I don’t really need to go any further because nothing is going to happen about it.” She then turned around and said, “Well a file will be kept.” I said, “What, confidential?” She said, “Yes.” I said well, it’s a confidential file, it means nothing, that’s it. So to be honest the way in which I treated it I did disregard it because I didn’t deem it to be serious.

You would have to agree that it’s inappropriate to say these sorts of things to co-workers, wouldn’t you?---It was outside of work, it was a two-way street

So it’s all right outside of work?---It was outside of work, it was a two-way street.

As you said Ms Roth approached this bar because she knew that you and some other co-workers had been there?---She’d spoken to me at work, said, “What are you up to tonight?” I said, “I’m going to here with two of the guys.” She goes, “I might be there, I’ll let you know.” That’s it.

But you still say there is no connection with the workplace?---No, the only time we spoke at work she was on reception and I was in the office and she asked me where I was from, I asked her where she was from, I said, “Well you’re new here, we can go out for drinks,” that’s it, we never met up after that, before that, we did arrange to but nothing actually eventuated.

You also say in the first paragraph of your statement, “Nor had I had any previous warnings in relation to any other items accused of.” Have you read Ms Yencken’s witness statement in this matter?---Yes, I have.

Upon your commencement as a permanent employee Ms Yencken told you your behaviour towards Ms Roth was inappropriate and you needed to be careful of how you treated (indistinct) employees, didn’t she?---Correct.

Ms Yencken also said words to the effect of, “Such behaviour will not be tolerated and if any of this happens again you will be out,” meaning dismissed, “so consider this a first and final warning.” Didn’t she?---Not a chance. Never said that.

You’re saying she never said that to you?---Never said those words at all.

So effectively you’re saying Ms Yencken has lied in her witness statement that she gave you a warning?---Yes.

You’re also saying that her notes attached to her witness statement dated 23 April and 2 May which confirmed this, you’re saying those notes aren’t authentic?---I’m sorry they’re not.

Why do you think Ms Yencken would document a discussion she supposedly never had before the date that she had with - sorry, before your dismissal?

---Because I said I was taking Equiset to the Fair Work Commission for the way I was dismissed.

So you think she has written these notes after the fact?---That must have happened.

And dated them five, six months earlier?---Similarly to do with the witness statements that all of a sudden came up after I requested the information from Equiset on several occasions. It took three and a half to four weeks for me to receive any documentation.

Just to summarise, you’re saying that those notes by Carolyn Yencken are false?

---Correct, and there’s discrepancies within two statements that were submitted by Carolyn Yencken in regards to who was aware of this first and final warning. The first one states that Mr Roy Veal was aware and that he also gave me the same. Again, incorrect. Mr Roy Veal will confirm that no first and final warning was ever given, an informal chat or a word of advice was given.

By him you mean, not by her?---By both, he will confirm both.

How will he know whether Carolyn - - - ?---Because he was my line manager - he was - - -

- - - (indistinct) a warning or not?---He is the commercial manager, he is my line manager, he will explain to you exactly how it happened and at no point was any first, final, verbal written anything warning communicated to me or given and if there was I would not have taken it because again it was outside the workplace.

So a few moments ago you admitted that Ms Yencken told you that your behaviour towards Ms Roth was inappropriate and that you needed to be careful of how you treated other employees, that wasn’t a warning?---It was not a warning.

You state at the third last page of your statement - - -

THE DEPUTY President: Sorry, are you saying it wasn’t a warning because she didn’t use the term “warning”?---She never used the term warning.

Is that why you say it’s not a warning?---No, there was never - I was never led to believe that my job would be at jeopardy, that I need to watch my behaviour.

Mr Painter, can I put this to you. If you were walking towards that wall and I said, “Watch out for that wall, Mr Painter,” what would you regard that as?---A warning. 34

[17] Mr Matthew Hudson, the Health, Safety and Environmental Manager of the Respondent gave evidence that at a meeting on 28 November 2013 he attended with Mr Len Simpson, the General Manager of the Respondent, and the Applicant convened to discuss the allegations that had been made by Ms Grant (the detail of which is later dealt with in this decision), Mr Simpson said to the Applicant words to the effect “this is not the first time you have been warned about this type of behaviour. You have been spoken to previously about complaints made by Paula Winter, where you referred to her as a MILF and the receptionist Chantelle you kept asking out.” 35 Mr Hudson’s evidence was that “Mr Painter acknowledged yes and said he was only having fun with Paula calling her a MILF and Chantelle Roth was “after him”36. In his oral evidence before me Mr Hudson gave the following evidence:

Did I hear your evidence earlier correctly, did you indicate at some point during the meeting between you and Len and Mr Painter that Len had referred to the earlier warning?---Yes, he did.

Do you remember what if anything Mr Painter said about the warning?---In regards to the warning he didn’t deny any of the allegations, so in relation to the warnings he didn’t deny that he had a warning as well. Effectively he conceded to everything that we put to him.

Putting aside the concessions about conduct, I’m interested in the warnings, you say he didn’t deny it and he said nothing about it?---No, he did say nothing about it that I recall.

It’s not as though he said, I acknowledge I’ve got the warning, but just didn’t say anything?---No, he acknowledged, that’s what I’m saying, he conceded to everything that we’re questioning him on. He agreed that yes, he was spoken to by Roy in relation to the Paula matter. 37

[18] The Applicant did not cross examine Mr Hudson about these matters and so Mr Hudson’s evidence that during the meeting on 28 November 2013, that the Applicant had previously been warned or spoken to about the Chantelle Roth incident, as well as the Paula Winter incident (discussed further below) is unchallenged. Mr Hudson also produced notes of the meeting on 28 November 2013 38. I accept Mr Hudson’s evidence. Mr Hudson’s evidence was that he took these notes during the course of that meeting39.

[19] The Applicant sought to cross-examine Mr Hudson about the authenticity of the notes and whether they were taken during the meeting 40 but did not cross-examine Mr Hudson about the accuracy of the notes as a record of the discussion during the meeting on 28 November 2013. At pages 2-3 of the notes the following is recorded:

LS – this is not the 1st time you have been warned about this type of behavior (sic). You were spoken to previously about complaints by Paula winter and the phone receptionist.

MP – I was only having fun with Paula and calling her a “Milf” was a joke. And Chantelle was after me.”

[20] Further on at page 3 and over on page 4 of the notes, the following is recorded:

“LS – I’m fully aware of the complaints and you have been spoken to and warned about your conduct by Roy V and Carolyn Y.

MP – yes, but nothing has been put on my file.

LS – Wrong, is on your file, this is the 3rd time this misconduct has been reported to senior management stop this is not acceptable we will not tolerate this at Equi.

MP I know, it will not happen and pain I’m sorry. Equ have given me a great opportunity.”

[21] The note does not record any dispute by the Applicant that he had previously been spoken to or warned about this kind of behaviour arising from the incident involving Ms Roth and later Ms Winter. To the contrary, the note records an acknowledgement by the Applicant, at the very least, of the Applicant having been spoken to about these incidents.

[22] Mr Hudson’s evidence and the content of his note have a tendency to support the evidence given by Ms Yencken about what she had said to the Applicant during their meeting on 2 May 2013.

[23] Mr Simpson’s evidence was to the same effect 41 and the Applicant did not cross-examine Mr Simpson on this evidence. Mr Simpson’s evidence in this regard is therefore not challenged and has a tendency to support the evidence of Ms Yencken concerning the 2 May 2013 meeting.

[24] I have preferred the evidence of Ms Yencken about the content of the meeting of 2 May 2013 where it has conflicted with that of the Applicant and my reasons for doing so are as follows. Ms Yencken presented as a truthful witness. Her evidence was consistent and unaffected by the cross-examination. She is an experienced human resources manager who understands the importance of note taking. She produced a contemporaneous note of the conversation that she held with the Applicant and that note was consistent with the evidence that she gave before me. Although the Applicant did not deny that Ms Yencken discussed Ms Roth’s complaint during their meeting on 2 May 2013, he denied that he was given a warning of any kind during that meeting. He accepted for example of that “Ms Yencken told you your behaviour towards Ms Roth was inappropriate and that you needed to be careful of how you treated . . . employees” 42, but said that Ms Yencken was lying about giving him a warning and that she had in effect fabricated her notes to support her evidence43.

[25] Apart from the inherent unlikelihood of fabrication, the allegations of lying and note fabrication are baseless. Making baseless allegations was a habit the Applicant continued to deploy on a number of occasions during the hearing 44. Moreover the allegations of lying about the warning and fabrication of the note would not have even been put to Ms Yencken but for prompting of the Applicant from me45. That some form of note was prepared and kept by Ms Yencken is accepted by the Applicant and is apparent from the following exchange during cross examination:

[26] The attitude expressed by the Applicant in the above exchange might explain why the Applicant believed he was not given a warning.

[27] I accept that Ms Yencken’s note was a contemporaneous note and that it records accurately that which was communicated by Ms Yencken to the Applicant during the meeting of 2 May 2013. That Ms Yencken made a contemporaneous note is also supported by the evidence of Mr Veal, which is discussed separately below. Further, as is evident earlier above, both Mr Simpson and Mr Hudson gave unchallenged evidence that the fact that the Applicant had been spoken to or received a warning about the Chantelle Roth incident from Ms Yencken had been put to the Applicant during their meeting with him on 28 November 2013, and that the Applicant acknowledged that fact but said that he did not think it had been recorded in his employment file. I accept therefore that a first and final warning was given to the Applicant by Ms Yencken on 2 May 2013.

[28] Ms Yencken also gave evidence that she subsequently informed Mr Veal of the discussion with the Applicant and that she told Mr Veal that she had given the Applicant a warning. She said that Mr Veal did not want her to put the warning in writing but told her that he had told the Applicant “the same thing” 47. Mr Veal gave evidence that he did not remember that Ms Yencken told him that she has given the Applicant a warning48 but remembered a discussion about a file note as follows:

THE DEPUTY PRESIDENT: Perhaps Mr Veal you might actually tell me what she said to you. So far you’ve told me what she hasn’t said to you, I’d like to know what she said to you. Do you remember what she said to you?---Sorry?

Do you remember what Carolyn said to you?---It’s - - -

It’s not helpful to me to tell me what she didn’t say, I want to know what she said?---It was more in the lines of not - a first and final warning is very - - -

Put that to one side, just try and remember the words that she used?---I think it’s - I think the words were that, “I’ve spoken to Michael about the incident, I’ve told him that I’ve made notes and then the file notes.” I effectively said that I didn’t think there was a need for the file note because there was no complaint and that I thought it was unnecessary but recognising that Carolyn is HR and potentially that - as an HR regulation may need to keep a note of the conversation which has taken place I said okay. So it was more the file note that was going to be maintained. 49

[29] As to whether Mr Veal had spoken to the Applicant about his behaviour, Mr Veal gave the following evidence:

. . . It was just childish and as I explained to Michael when I pulled him in, I said, “Look, you’ve got the Chantelle issue, you’ve got the Paula issue. You need to pull your head in effectively,” and yes, just start acting a little bit mature so to speak.

THE DEPUTY PRESIDENT: Mr Veal, can I just ask you this. If someone - if my supervisor were to tell me to pull my head in I would take that as indicating that I should stop that behaviour otherwise there might be consequences. Is that what you intended to communicate?---Certainly the discussion was with Michael you know to stop it, that was the discussion, it was immature, it was a silly thing to do, just stop it.

You used the word “pull your head in”?---Yes.

That’s what you said to me?---Yes, yes.

What did you mean by that?---I think it was - I think that Michael since we employed him he’s a typical - I’m trying - from London, got a lot to say effectively, he likes to be - you know he’s a fun person, he likes to be involved and engaging in with people. “Pull your head in” to me was just get on with your job and stop getting - you know playing with the periphery, just do your job effectively and stop getting involved in what I think is nonsense, you know.

MR PAINTER: So we’ve established your evidence is you never said to him, “This is a formal warning.”?---No, no, no.

But you did say to him, “You need to pull your head in,” and the intention was that he wouldn’t say things like, “I want to take you home,” to employees and he wouldn’t call people a MILF and he wouldn’t continue these sorts of behaviour?

---Yes, yes, yes. I was trying as I said when I was talking to Michael just now this experience that I’ve had that you know you really should avoid - to me you should avoid romantic or entanglements or otherwise with people you work with, it is never a good thing, it’s not illegal obviously but it’s never a good thing I don’t think to do it and that’s what I said to Michael and I spoke to him that you know you really need to just avoid, you know, getting involved with people at work et cetera and stop this stuff, the emails, et cetera with people like Paula et cetera. There was no warning given though, it was just like advice, a chat. 50

[30] Later Mr Veal gave the following evidence:

MR PAINTER: Mr Veal, just (indistinct) obviously with a comment that you said to the Deputy President regarding me pulling my head in, that was a descriptive term you gave, it was not actually a comment that you said to me is that correct during our meeting?---Say that again, sorry?

You did not say to me at any point, “Pull your head in,” during our meeting, that was not the term that you used, correct?---I can’t hear, sorry.

The term “pull your head in,” when we had that meeting?---Yes.

You never said that to me those words?---The (indistinct)?

Pull your head in?---No, I think I - pull your head in I think, no I think it would be - I’m paraphrasing a little bit in terms of the intent, no, when you said the exact words “pull your head in” but I think in the context of how I used it just now it would be that - it would be more in the sense of yes, just - I’ve used the word just pull your head in just now, maybe that’s not a reflection of what I said to you, (indistinct) said to you but obviously the issues that were there needed to be - needed to close, finish and stop, yes. 51

[31] The Applicant’s view that he was not given a warning is likely also to have been reinforced by the manner in which Mr Veal approached his “chat” with the Applicant.

[32] Although I am satisfied that the Applicant was given a first and final warning in relation to his behaviour towards Ms Roth, I am not satisfied that the warning was justified in the circumstances nor communicated in a manner befitting the giving of a warning. First, I accept that the behaviour as alleged occurred. Indeed the Applicant did not deny that it occurred, however most of the behaviour happened outside of work hours and there is no evidence that the behaviour continued at work in relation to Ms Roth. Moreover Ms Roth was not called to give evidence and so the Applicant was denied an opportunity to cross-examine Ms Roth and put to her reciprocal nature of the conduct alleged. Secondly, the status of the “warning” as a warning was undermined by Mr Veal’s “chat” with the Applicant and by the offer of employment made to the Applicant during the same meeting as the warning was given. If one were looking for an example of mixed messages, one needs to look no further than that which occurred during the meeting of 2 May 2013. I accept that Ms Yencken was reluctant to offer the Applicant employment and did so only on Mr Veal’s instruction, but in the circumstances, it is unsurprising that the Applicant did not treat a warning as serious. Nevertheless, I am satisfied that the Applicant was well aware, after his chat with Mr Veal, that he should cease engaging in the kind of conduct involved in the Chantelle Roth incident, and the Paula Winter incident which is discussed below.

Paula Winter incident

[33] The substance of this incident is not in dispute. On 16 April 2013 Ms Paula Winter, a senior administrator with the Respondent, 52 exchanged email correspondence with the Applicant. Relevantly the email exchange was as follows:

From Applicant to Ms Winter – “Paula getting her creep on with younger man!! High five!!”

From Ms Winter to Applicant – “Hahahah . . . Love a younger man, hope that doesn’t make me sound of the Cougar”

From Applicant to Ms Winter – “I meant milf lol J”

From Ms Winter to Applicant – “Whats (sic) a milf?????? Haven’t heard that one before”

From Applicant to Ms Winter this word – “Are you serious . .? Ask Mel . . she should know lol

Im (sic) actually crying out with laughter right now

Regards”

From Ms Winter to Applicant – “OMGAAAAWWWWWD, I cant (sic) believe you would say that, that’s not very nice. :-( ”

From Applicant to Ms Winter – “Hahahaha only said it for a reaction. Okay from now on you are the Cougar!! J”

From Ms Winter to Applicant - “I don’t even like being a Cougar, cant (sic) I just be fun me J” 53

[34] Ms Winter gave evidence that she was disgusted when she learned what the acronym MILF meant, that she had raised the issue with Mr Veal and that she understood that Mr Veal would speak to the Applicant about the issue 54. Mr Veal’s evidence was that Ms Winter did not complain but rather made a comment to him about the issue. His evidence was as follows:

You have already confirmed this morning you know Paula Winter or knew Paula Winter?---She’s my sister-in-law, yes.

You remember an incident when Paula complained the Applicant had referred to her in an email as MILF. You told her that you would speak to the Applicant about that email, didn’t you?---Yes, she didn’t complain, it was more a comment, it was a - it was a - I’m trying to think of an example I can give that something is said and - I’ll just call her Paula if that’s okay, Paula wasn’t sure what it was and she asked the girl next door and the girl next door asked somebody else and it got round to me and I sort of just walked over and she said, “Michael sent me this thing, I don’t know what this MILF means.” Somebody else explained what it was and her words were there - it wasn’t a complaint, her words were, “Oh, that’s not nice.” That was her exact words.

You understood that she wasn’t happy about it, she didn’t like being called a MILF?---Yes, she - yes, yes, not happy, yes, that’s right I’d say she wasn’t happy. I mean it wasn’t formal - I suppose I’m trying to define between a formal complaint and she wasn’t happy, she thought that wasn’t the - what she should be receiving, yes.

You wouldn’t condone this type of conduct would you, calling someone a MILF?

---I thought that initially when it was said to me he’s called me a MILF and she was upset that’s when I said I’d speak to Michael but then when Michael showed me the chain of emails that there was Paula using the word “cougar” describing herself I’m thinking well, the two of them are just in this chain of texts. I thought well it was maybe not unexpected that something like that would come out of when you get someone calling themselves a cougar and that sort of language that’s going on.

In those circumstances do you consider it was acceptable to refer to a co-worker as a MILF?---I thought it was unacceptable on both their parts to be involved in that sort of discussion but from a point of view of a complaint or a warning no, to me it was childish. It was just childish and as I explained to Michael when I pulled him in, I said, “Look, you’ve got the Chantelle issue, you’ve got the Paula issue. You need to pull your head in effectively,” and yes, just start acting a little bit mature so to speak.

You used the word “pull your head in”?---Yes.

That’s what you said to me?---Yes, yes.

[35] The Applicant’s evidence was that “[T]he situation with Paula Winter was something that happened between two people and it was - the conversation (indistinct) by saying the term “cougar”, I then said the term “MILF”. Mr Veal prior to signing of the contract brought me in and spoke to me and just gave me you know a be careful with what you’re saying kind of, you know, be aware.” 56 Ms Yencken gave evidence that she did not deal with the incident during her meeting on 2 May 2013 because Ms Winter told her that she did not want anything done, that Ms Winter had informed Mr Veal of the incident and that Mr Veal had told Ms Winter that he would speak to the Applicant about this issue.

[36] The evidence clearly establishes that in or around April 2013, the Applicant engaged in an inappropriate and offensive communication with Ms Winter. The context, reproduced earlier above, did not give licence to the Applicant to communicate with Ms Winter in the way he did. Contrary to the Applicant’s view about the mutuality of the communication (the same explanation he used to justify his conduct towards Ms Roth), Ms Winter’s self deprecating email did not invite or warrant his inappropriate and overtly sexual response. That Ms Winter did not immediately understand the meaning of the acronym does not lessen the inappropriate nature of the communication, nor the offence she felt on discovering its meaning.

[37] It is also clear that the Applicant was counselled about the communication by Mr Veal, and even by Mr Veal’s soft and matey approach to employee counselling, the Applicant should have understood that such conduct was not acceptable and, to use Mr Veal’s phrase, “to pull your head in” 57. The Applicant maintains that he “was never given a warning nor told that my job was in jeopardy if such behavior (sic) continued”58 but his view is at odds with the evidence and ignores the substance of that which Mr Veal tried to communicate to the Applicant. Although Mr Veal has not used the word “warning”59 during his discussion with the Applicant about the Paula Winter incident, he did tell the Applicant that the conduct “was immature”60, “a silly thing to do”61, to “just stop it”62 and to “pull your head in”63. On the Applicant’s own evidence Mr Veal gave the Applicant “a be careful with what you’re saying kind of, you know, be aware”64 message. Taken in its totality, the evidence establishes the very least that the Applicant was made aware of the conduct complained about by Ms Winter, told in effect it was not acceptable or appropriate workplace conduct, and was told to stop it.

[38] Whether the word “warning” was used in communicating the unacceptability of conduct and that it must stop, is in many respects beside the point. That the word was not used by Mr Veal during his “chat” with and imparting of his “fatherly advice” 65 to the Applicant, did not render the conduct less serious or more acceptable. As the Applicant conceded one does not need to utter the word “warning” for the communication to be a warning and to be understood as such66. Moreover I am satisfied, based on the unchallenged evidence of Mr Hudson and Mr Simpson about what was said to the Applicant during the meeting on 28 November 2013 and his reply together with the Applicant’s own version of the”chat” given in evidence before me67, the Applicant well knew that Mr Veal’s chat was telling the Applicant that his conduct was unacceptable and that he should stop.

Melissa Grant incidents

[39] Ms Melissa Grant is an accounts and administrative officer with the Respondent 68. Ms Grant gave evidence that while at work the Applicant would discuss with Ms Grant his relationship with his girlfriend, his sexual relationships with other girls and that he and his girlfriend had an open relationship69. During her evidence before me, Ms Grant elaborated as follows:

At 4 you say, “Michael would then also tell me about how he was sleeping with other girls and so was his girlfriend.” Did you elaborate on this or give examples of what Mr Painter would specifically yes?---Yes. He would come and speak to Paul and myself and we were sitting mostly, and talk about him and his girlfriend and what they would do on the weekends and how much thinks of her and bought for her, and everything else. He would tell me how much he loved her and then he’d say that, you know, she’s sleeping with other men and he’s sleeping with other women and they were both happy with the open relationship. And then he would tell me how they’ve broken up, and that he was still sleeping with other women but it wasn’t the same because he still loved her and - yes, just telling these things that I didn’t want to know.

When you say - you said a moment that Mr Painter would describe what he and his girlfriend at the time would do on the weekends?---Mm.

What were examples of these sorts of discussions, can you remember anything in particular that he said which you didn’t necessarily want to know?---He didn’t go into too much detail sexual-wise. He just was saying, you know, they went away for the weekend to a winery, or they just - they’d been together, spending time together and, yes.

And in what context did he disclose these details regarding what he was doing with his girlfriend - or sorry, what he was doing with the girlfriend or details regarding his sex life?---He (indistinct) babbling and it would in his language, fucking other people, other girls and, yes.

And was it in response to anything you’d said to him, these types of conversations?---Absolutely not. He would tell me himself, I would not even ask him any questions at all. He would just tell me his personal life which I didn’t ask for and I didn’t want to know.

And how did it make you feel when he said these types of things?---Disgusted. Just personal information that I don’t think he should be talking to other employees about and telling us in the office that, you know, other employees are around. So I would say he was, yes, disgusting.

Did you hear him share these details with anyone else in the office?---He would share them with Paula and that’s all that I heard.

The Applicant said - sorry, gave evidence yesterday that he never discussed the details of his sex life with anyone in the office. What do you say to that?---He’s lying. I would get really cross because he would speak to me every time he was in the office about it. And that was basically all we spoke about. So if it wasn’t work, it was about him telling me about his six life and his girlfriends and, you know, what they’d been up to. 70

[40] During cross-examination of the Applicant, he gave the following evidence concerning his discussions with Ms Grant:

You were also told that Ms Grant and Ms Winter had complained that you had previously disclosed information to them regarding your sex life, weren’t you?

---Yes.

It’s correct that you disclosed information regarding your sex life and sexual encounters to Ms Grant and Ms Winter from time to time isn’t it?---Not my sex life, my relationships because they showed an interest.

Can you elaborate on that a bit?---There’s nothing to elaborate, they showed an interest, how’s things going. 71

[41] During the Applicant’s cross examination of Ms Grant the following exchange occurred:

Okay. Thank you. I also move onto the point obviously that we used to have discussions about various topics within the office. I refute the fact that I would have these open discussions with you. You do actually divulge to me certain conversations about you moving house with your boyfriend, you’re getting a dog together, I believe, moving in with your boyfriend, it was a great relationship and so forth, and that I would share something of similar nature. Can you confirm that?---I can confirm that when I was sitting at my desk - there are pictures of my boyfriend and there are pictures of my dog so, yes, I’m sure that we did come up with that conversation at some point. But that would have been all.

Yes. No - that’s - - - ?---It was mainly you, Michael. 72

[42] And later:

I also put to you that you’re being untruthful about the fact that we entered a normal conversation and didn’t go into sexual explicit detail with one another and it was merely two grown ups having a conversation at work?---Absolutely not.

I also would like to state that you showed interest in what I was getting up to and we had just a normal friendly conversation at work. Do you agree - can you confirm that either way?---I am actually - my personality is I’m a very good listener. I do listen quite a bit. I’m not one to speak up for myself most of the time. So, yes, I did listen to what you said, not that I wanted to hear it or not that I asked to hear it.

And did you - if it did happen again, which I am telling you didn’t - well, I’m stating that it didn’t. Did you, at any point, express to me in any shape or form that you were uncomfortable if this did occur?---No. 73

[43] Ms Winter gave evidence, which tended to corroborate the evidence given by Ms Grant in relation to the conversations that the Applicant had with Ms Grant. Relevantly Ms Winter’s evidence is reproduced below:

Are you able to confirm some of those conversations that you overheard between Mr Painter and Ms Grant?---Yes. Because Melissa sits next to me, Michael would be standing behind me, basically having a conversation with Melissa. It was always about, you know, how was her and Matt, which Matt is Melissa’s partner, how were they going? He would also get engaged with conversations with Melissa about his girlfriend at the time. Also about sleeping with other women, that him and his girlfriend had basically an open relationship, that she was sleeping with other men so he would sleep with other women. The terminology that he would use in the actual office, would be, not sleeping, but you know, fucking other women. Which I just thought it was pretty disgusting and something that shouldn’t be used in the office.

THE DEPUTY PRESIDENT: Ms Winter, sorry to interrupt you?---Yes.

I just want to be absolutely clear about what you’re now - what you’re saying. Is it your evidence that you have a specific recollection that you heard Mr Painter have conversations of the kind you’re now relaying with Ms Grant?---Yes.

You haven’t - well, I’m asking you whether you’ve discussed these allegations with Ms Grant?---Yes.

You have, okay. Now, I’m asking you to - bearing in mind that you’re under oath - I’m asking you to tell me whether you have a specific recollection of hearing these conversations or whether your recollection may have been effected by conversations you’ve had with Ms Grant?---No, I definitely heard the conversations.

Okay. Thank you. 74

[44] The Applicant’s cross-examination of Ms Winter on this evidence is below:

I’d also like to state that in regards to how you betrayed me about being - or the commentary you’ve said and the comments and the conversations I’ve had with Melissa, I deny those conversations and actually - all three of us had a friendly working relationship where we openly discussed things in a normal nature and not a sexual nature, and I deny the allegations that are made by both yourself and Melissa. I would like to obviously confirm to the Court that, yes, I did, state MILF and in person and that you did engage in a conversation with me and prior to me calling you that considered yourself a Cougar because your husband is younger than you. So can I put it to you that everything you’ve said is true, because I believe it to be false and I’m denying the accusation?---No, it’s not true. In an email that I sent on 16 April, I did refer to say that I love a younger man, because, yes, my husband is younger. And I also said I hope that doesn’t make me sound like a Cougar. I didn’t say that I am a Cougar. 75

[45] I have preferred the evidence of Ms Grant to that of the Applicant about the nature, substance and context of the discussions that the Applicant had with her for the following reasons. First, I found Ms Grant to be a credible witness and the suggestion by the Applicant that Ms Grant was untruthful 76 to be baseless. Secondly Ms Grant’s evidence was corroborated by the evidence given by Ms Winter. I also found Ms Winter to be a credible witness and I find the suggestion that she too was giving false evidence77 to be baseless and likewise that she had communicated with another employee of the Respondent indicating her reluctance to become involved78, to also be baseless. Thirdly, the Applicant’s response to the allegation that the discussions were mutual and that Ms Grant showed interest, speaks to the Applicant’s evident lack of self-awareness. It is the Applicant’s stock standard response to each of the allegations thus far discussed. None of the women complaining accept that that is so. The likelihood of that being so is remote and goes against the weight of evidence. In consequence I found the Applicant’s evidence unconvincing and I do not accept the Applicant’s explanation.

[46] Ms Grant also made allegations about being asked out for drinks and lunch and about inappropriate and unprofessional conduct persisting to the point that she asked that the Applicant’s telephone calls not be put through to her. Specifically Ms Grant gave the following evidence:

I also recall hearing about Michael taking girls into the job suite and sleeping with them . Michael would brag about how he would take alcohol and get drunk with all of his mates in the Equiset corporate box at the MCG even though this was prohibited.

Michael would ask me out for drinks and regular lunch/cigarette breaks, to which I would say no, I’m too busy or I don’t want to. I didn’t see Michael as a ‘Friend’ more just a work colleague that I had to work with. Michael would always ask me about my boyfriend and how we were, I can recall that Michael would ask me this nearly everytime (sic) he was in the office, to which my answer was always good/great. I was always a bit weary as to why he would ask so much but at the time didn’t think much of it. Michael and I would have to work together in order to make sure the suppliers got paid, which involved regular ‘catch ups’ at work to discuss invoices or we would do this over the phone. I would also email Michael to try and solve invoice issues, Michael would hardly ever email back, but would call instead. As such his inappropriate and unprofessional behaviour was starting to irritate me and was making me feel uncomfortable. I subsequently advised our receptionist to not put his calls through to me, she agreed to screen the calls and take messages for me. 79

[47] During her oral evidence before me Ms Grant elaborated as follows:

You say at 5 in your statement that Michael would ask you out for drinks and regular lunch or cigarette breaks, you’ve said, “To which I would, no, I’m too busy, or I don’t want to. I didn’t see Michael as a friend”?---Correct.

Why - did you have any idea or did you say anything that would have led Michael to believe that you wanted to meet with him regularly or take breaks or cigarette breaks with you?---Absolutely not. We would - I think maybe once or twice as an office, as something, you know, usually we would do, for a Friday lunch, something like that, but there would be about 10 of us and it’s just more a social thing, I guess, but never would I ever put forward that I want to spend time with him or anything like that.

You also say at 5 of your statement, “Michael would always ask me about my boyfriend and how we were. I can recall that Michael would ask me nearly every time he was in the office.” How did this make you feel?---After a while it made me question why he was asking me to the point of, “Is he asking me to see if we’re on rocky terms that maybe he could then ask me for a drink.” Just, yes, I didn’t quite understand why he needed to ask me every - you know, nearly every time that we met, to which I would always answer, you know, “We’re really happy. It’s great.” And he would still carrying on asking which I didn’t understand.

Sure. You also say in 5 of your statement, “As such his inappropriate and unprofessional behaviour was starting to irritate me and was making me feel uncomfortable.” Can you elaborate on this and give any other examples of Mr Painter’s inappropriate and unprofessional behaviour?---Yes. He would always come in there - like, he came in the office and he’d be (indistinct) corporate box, which was alcohol prohibited. So he would come in after the weekend, tell us - Paula and I that he had gone to watch the game, taken alcohol in, and got really, really drunk - - -

MR PAINTER: Deputy President, can I ask what this has got to do with the case?

THE DEPUTY PRESIDENT: Well, it’s got to do with your conduct at work.

MR PAINTER: But not directly with Melissa Grant.

THE DEPUTY PRESIDENT: Well, this is what she says you told her. You’ll have an opportunity to cross-examine her if you wish.

MR PAINTER: Okay. Thank you.

MR PAGE: Please continue?---Yes. So he would come and say, “Yes,” that he got really, really drunk on the weekend, which I found was very, very unprofessional and it would make me look at him in a different light. He would (indistinct) talk about his sex life with his girlfriend. What else? “My lover”, he wasn’t respectable at all. Just general, just conversations, just (indistinct) that thought, you know, everyone loved him and just, you know, was friendly from day one. Too friendly.

You also say you advised the receptionist to not make Mr Painter’s calls through to you. Why was this?---Because it got to a stage where I didn’t want to speak to him anymore. I still had to do my job and I had to work with him, and I - yes, I told the receptionist to take messages (indistinct) regarding work, to which he - I would always email back, he would always call reception to put but through to me even though he had my direct line, which (indistinct) knew that. Yes, I just did not want to speak to him at all. 80

[48] Ms Winter corroborated some of the evidence given by Ms Grant on this issue. During her oral evidence Ms Winter said:

Michael came in one day after a weekend and told Melissa and I how he’d been to the Equiset corporate box. Apparently he took all his mates in there. At the time there was no alcohol to be served. Apparently, he told us how he sneaked in all this alcohol, got blind and - which, you now, we thought that wasn’t on because it was a company corporate box. To this point I actually told Roy Veal about the incident and Roy Veal actually left. Sula Clark, which is one of our senior management at Thornbury that actually lets the corporate box out to members and he told Sula at no circumstances was Michael Painter to be able to use the corporate box again. 81

[49] The Applicant did not deny the substance of the allegation made by Ms Grant about the Applicant asking her out on a regular basis, as recounted above. He suggested however in cross-examination of Ms Grant, that they had been Facebook friends. From this I take it that the Applicant was suggesting that their status as Facebook friends somehow justified his conduct at work toward Ms Grant. I accept Ms Grant’s evidence that the Applicant had regularly asked her out for drinks and lunch and persisted in doing so despite her having declined the offer. I also accept the evidence that in the context of the Applicant’s enquiries of Ms Grant which were of the personal nature, this led Ms Grant to question the Applicant’s motive and made her feel uncomfortable. In addition, this evidence was not seriously challenged by the Applicant’s cross-examination of Ms Grant and to the extent that the Applicant suggested that a Facebook friendship status is somehow licence to engage in or to continue to engage in the conduct described by Ms Grant, the proposition is rejected.

[50] As to the allegation about the misuse of the Respondent’s corporate box, the Applicant seemed to take issue with the fact that his discussion of it at work was described as “bragging” but not with the fact that the misuse occurred and that he discussed it at work as alleged by Ms Grant. This is evident from the following exchange recorded in transcript:

I’d also like to state to you that in your statement, paragraph 13, where it says, “Bragging about doing work on your girlfriend’s house and having Equiset pay for it.” That you’re also lying?---Disagree.

I’d also like to put it to you that you’re lying about me taking girls onto the job suite and sleeping with them?---Disagree.

I’ve got no further questions.

THE DEPUTY PRESIDENT: Well, before you sit down. At the end of paragraph 4, there’s an allegation - remember you asked about its relevance. Do you accept that you said that to her?

MR PAINTER: Paragraph 4, Melissa, it states here that, “Michael would brag about how he would take alcohol and get drunk with all his mates in the Equiset corporate box at the MCG even though this was prohibited.” Correct?---Correct.

In part, I’d agree that that statement is true, but bragging about it, it only happened on one occasion, is all that went on. And it wasn’t that I bragged about it, you heard about it. So, again, I state that you’re lying?---You told me about it.

THE DEPUTY PRESIDENT: So the thrust of your question, Mr Painter, is that you say that on one occasion you did talk about that because it happened?

MR PAINTER: No, what happened was, it did happen, but there was discussion in the office about it happening. 82

[51] The evidence clearly establishes, on the Applicant’s own account, that the Applicant misused the Respondent’s corporate box. Whether the Applicant “bragged about it” or merely discussed the issue in the office with Ms Grant and others is beside the point.

[52] There is a lack of evidence to establish the truth of that which is asserted in the first two paragraphs of the excerpt of transcript reproduced above and I make no findings in that regard. However I accept Ms Grant’s evidence that these comments were made to her or in her presence by the Applicant. Overall I have found the Applicant’s denials unreliable, in part because he was prone to look for justification for his conduct based on his suggestions of mutuality and invitation, partly because he was prone to make baseless allegation about others and in part because his overall evidence carried with it all the hallmarks of unreality and sometimes absurdity. For these reasons and for the reasons given earlier I have preferred the evidence of Ms Grant and of Ms Winter where it was in conflict with the evidence given by the Applicant.

[53] Mr Grant gave evidence that she decided to complain about the Applicant’s behaviour towards her following a telephone exchange on 27 November 2013 83. Mr Grant described the incident as follows:

I believe Michael called my direct work phone on 27 November 2013; Michael verbally introduced the conversation as ‘Hello My Lover’. In the background I heard all the site boys laughing. Michael always seemed to love having an audience when talking to girls. I carried on with the conversation, to which Michael said he saw me the previous night at the Night Market and that I looked very nice, to which I responding saying, ‘did you go?’ and he said ‘no’. After finishing the conversation and hanging up the phone I realised I was not comfortable with what had happened and actually felt quite sick and immediately realised that what Michael had said to me was very inappropriate.

Having had enough of his repeated unwanted attentions I emailed him at 11.10am on 27

November 2013 (Annexure A), stating ‘I would appreciate it if you spoke to me on a work level because I find it unprofessional and makes me feel uncomfortable. Please do not ever refer to me again as ‘My lover’ on the phone or in person as situations like this have happened on a few occasions and has made me feel uncomfortable.’ Michael would usually refer to me as ‘babe’, whether it would just be ‘hey babe’ or inserting babe into a sentence, this also made me feel uncomfortable.

At 11.25am, (Annexure A) Michael replied with ‘So so sorry, I would hate to make you feel uncomfortable that is the last thing I would want to do. I truly apologise’ to which I didn’t respond. Within 1 minute, Michael then called our receptionist, who took a message under previous instruction to hold all calls.

At 11.26, (Annexure B) Michael then emailed ‘Can you give me a call please thanks’. To which I didn’t, as I did not want to speak with him. At 11.39am, Michael then emailed to go against what he had said saying ‘Please know that it is a tongue & cheek comment and there is no meaning or malice behind it. The phase I use/d is “my love” so there is nothing else intended. Email noted & I endeavour (sic) to keep it on a professional basis’. 84

[54] In addition Ms Grant gave the following oral evidence:

You say at 8 of your statement, “Michael usually referred to me as babe.” Can you please elaborate on this regarding the context in which this would be said?

---It would just be, sort of, general conversation, just “Hey, babe,” and “how are you doing, babe,” and stuff like that.

Was this a - was this frequent, or irregular, can you elaborate on how often this happened?---It wouldn’t be every time but it would be frequent enough for me to feel uncomfortable. 85

[55] After initially suggesting that he used the phrase “my love” 86, the Applicant ultimately accepted that on 27 November 2013 during a telephone conversation with Ms Grant he had said “hello my lover”87. He apologised to Ms Grant after Ms Grant had asked him to communicate in a professional manner and had indicated that she felt uncomfortable.88 That is to his credit.

[56] The Applicant sought to explain his comments by suggesting that he frequently refers to people when greeting them with the phrase “hello my love” or ‘hello my lover’ as well as other phrases 89. He suggested it was a colloquial greeting90. He suggested that he used such phrases in greeting a number of other work colleagues and contractors engaged by the Respondent91. None of the persons he identified were called to give evidence to verify his assertion. Strangely though, as frequently as he suggested that he used the phrase or a similar phrase at work, he did not use the phrase in any discussions with Matthew Hudson, Len Simpson, Roy Veal or Carolyn Yencken92, each of whom were called to give evidence and were available to the Applicant to examine in the case of Mr Veal, and cross examine in the case of the others. As is the case in respect of much of the Applicant’s explanation for his conduct, I find his explanation as set out above is highly implausible and unreliable. As a consequence I reject his evidence that he used the phrase in his conversation with Ms Grant as an innocent colloquial greeting.

[57] As to the allegation made by Ms Grant that the Applicant had often referred to her as “babe” 93, the Applicant did not address this issue in his written statement94, there was no denial of the allegation during his oral evidence and he did not cross examine Ms Grant about the allegation. Furthermore Ms Winter gave the following evidence, which tends to corroborate the allegation made by Ms Grant:

Melissa Grant has given evidence that the Applicant referred to her as “babe” from time to time. Did you ever witness this - what do you say to that?---I didn’t actually hear Michael say it, but when Melissa had been off the phone after speaking to Michael she’s been distraught and she has actually told me that Michael had referred to her as “babe” and also other names apart from Melissa. 95

[58] The Applicant did not cross-examine Ms Winter about the evidence that she gave in which is reproduced above. I accept the evidence of Ms Grant on this issue.

Complaint to the Respondent’s management

[59] On 27 November 2013 Ms Grant informed Mr Simpson she wished to make a complaint of harassment relating to the conduct of the Applicant 96. On that day Mr Simpson together with Matthew Hudson, met with Ms Grant, and at Ms Grant’s request, Ms Winter97. Both Mr Simpson and Mr Hudson gave evidence that during this meeting Ms Grant told them about the Applicant’s earlier telephone call, his reference to her as “hello my lover” and his conduct towards her over the preceding months98, the details of which are outlined earlier above. During this meeting Ms Winter confirmed that she had heard the Applicant speak to Ms Grant and to her about his sexual activities and she is also told Mr Simpson and Mr Hudson that the Applicant had referred to Ms Winter as a MILF earlier that year99.

Meeting with Applicant on 28 November 2013

[60] As set out earlier in these reasons Mr Simpson and Mr Hudson met with the Applicant 28 November 2013 to discuss Ms Grant’s complaint 100. Mr Hudson made notes101 of the meeting and the Applicant did not challenge Mr Hudson as to the accuracy of the notes during his cross-examination of Mr Hudson. Mr Simpson gave the following evidence about the content of the meeting with the Applicant 28 November 2013:

I informed Michael that we had received a formal harassment claim from Melissa Grant and the allegation was being taken very seriously by Equiset and if proven, is a serious breach of Equiset’s policies. I put it to Michael that Melissa had stated he had called her “my laver” and had repeatedly asked her out for a drink or dinner even though Melissa had advised him of her current relationship and declined all of his invitations. I also put it to Michael that Melissa had produced the email she had sentto him requesting he not refer to her as ‘my lover’ and treat her professionally when talking to her. Michael replied he believed the whole thing was a mistake and in England the word lover was just a terminology used. I asked him if he was aware of Equiset’s bullying & harassment policy, to which he replied he was, and then asked “then why would you refer to Melissa as ‘my lover’ and not only that, why are you constantly asking her out when you know she has a boyfriend and she has told you she is not interested?”.

Michael replied he was only asking her out as friends with no harm intended. I then asked him words to the effect of “but she kept saying no. What part of no do you not understand?

Why did you continued to harass Melissa?” His response was the whole thing is taken out of context. I then asked “so you admit you are aware of our company’s policies, you admit

Melissa refused your advancements yet you continued to refer to her as lover?” Michael responded with words to the effect of “the whole thing is trivial and has been taken out of context.” As I understood it, Michael didn’t deny any of Melissa’s accusations but failed to understand how it had upset her or why it was inappropriate

I then raised the allegations and complaints received from Paula Winter, whereby he previously referred to her as a MILF, and our temporary phone receptionist (which I had been totally unaware of until the previous day). Michael explained while he had called Paula

Winter a MILF in an email, it was sent “in fun”, that he was “only joking” and that no malice was intended. In regards to the telephone receptionist, Chantelle Roth, he also said she was asking him out and they flirted with each other. I replied that I had read the file in regards to the receptionist and it stated she texted him back telling him to “fuck off.” I then asked him why she would send such a text message if she was, as he alleged, pursuing a relationship with him. I then noted Mellissa’s complaint makes it the third occasion a harassment complaint had been raised against him by Equiset’s female employees and this was all in the spate of 6 months of employment.

Michael’s response was that all of the incidents were taken out of context. I then informed him that I was fully aware of the complaints and that he had been previously spoken to in regards to his conduct and had been warned by Roy Veal and Carolyn Yencken about such behaviour. Michael agreed most of these incidents had occurred but added he believed no warnings had been included in his employment records or file. I said I believed he was wrong but that in any case, this is still the third time his conduct has been reported to senior management and it will not be tolerated by Equiset or the workplace in general. I also noted such forms of serious misconduct don’t necessarily require prior warnings.

I then informed him that considering he admitted to the statements previously made to Ms

Roth and Paula and the latest complaint made by Melissa Grant (but maintained they were all taken out of context), he was subsequently dismissed immediately by Equiset and was to leave the site immediately. I further stated I would be advising our office and staff immediately of his departure. Michael then, instead of arguing or questioning my decision,

asked what sort of payout he would be getting, to which I responded he would not be getting any payout or severance money as the matter was deemed serious misconduct and was clearly identified in his employment agreement as a serious breach of our company policy (which he had already admitted he was aware off).

Michael then asked if Equiset could refrain from advising immigration of his dismissal due to his Visa requirements. I responded by informing him Equiset would act according to the law and fulfil its legal obligations to the immigration department. Michael then asked, given he had three months to obtain another employer who would sponsor his Visa, if I could give him a written reference on behalf of Equiset. I was taken by surprise and couldn’t believe that after all this, he was asking for a reference. I said words to the effect of “after all this, you must be joking.” 102

[61] Apart from suggesting to Mr Simpson that the Applicant apologised for his actions during the meeting 103, the Applicant did not take issue with, or cross-examine Mr Simpson about the accuracy of his evidence about the content or conduct of the meeting on 28 November 2013. The evidence of Mr Hudson about the content and conduct of that meeting was largely consistent with the evidence given by Mr Simpson104. Mr Hudson’s notes, taken during the meeting of 28 November 2013105, are also consistent with the evidence of Mr Simpson. The Applicant did not challenge or cross-examine Mr Hudson about the accuracy of his recollection of that which he said took place during the meeting of 28 November 2013, nor as earlier indicated, did the Applicant take issue with the accuracy of the content of Mr Hudson’s notes.

[62] Other than conceding that he was not denied the opportunity to have a support person with him during the meeting on 28 November 2013 106, the Applicant did not give detailed evidence about that meeting. However, the Applicant was cross-examined about that meeting as follows:

Just for the sake of clarity, during your meeting with Len Simpson and Matthew Hudson on 28 November 2013 you were told Equiset had received a complaint from Melissa Grant, weren’t you?---Yes.

You admit saying, “Hello my lover,” to Ms Grant?---Yes.

You confirmed that you had read and understood the Respondent’s bullying, discrimination and harassment policy upon commencement of employment didn’t you?---Yes, I also requested at the time to see the statement and the complaint from Melissa Grant which was not given to me.

You were told Ms Grant had also complained that you had asked her out on a number of occasions, weren’t you?---I was told that and refuted that because again being from the UK I would ask anyone, everyone out to go out for drinks and it was a very social team that we were in. There were certain circumstances when I was at head office that Melissa Grant and Paula Winter would invite me out to lunch. I do have emails for that and I’ve (indistinct) there was actually a time that I got invited by Paula and Melissa, which Matthew Hudson did come with us downstairs at the Rialto. So there was also a time when Melissa Grant had me on a friend on Facebook.

So you say you went out to lunch or dinner with groups of people?---Yes.

Did you ask Melissa for a one on one dinner?---No.

You’re saying you never asked her out?---No.

In Mr Simpson’s and Mr Hudson’s witness statements you’re saying that they’re incorrect?---Correct.

That they’ve misheard Melissa Grant because you didn’t ask her out?---I did not ask her out.

You were told that Paula Winter had also complained about you calling her a MILF in an email weren’t you?---She never complained.

No, no, but during the meeting Mr Simpson and Mr Hudson said that Paula Winter had complained that you had called her a MILF in a previous email?

---And which I turned around to them and said there was no complaint.

Yes, but they told you that didn’t they?---They told me that.

They told you it was an allegation?---They told me it was an allegation.

They told you it was an allegation that Melissa Grant had complained that you’d asked her out on a number of occasions to which she declined?---Yes.

You were also told that Ms Grant and Ms Winter had complained that you had previously disclosed information to them regarding your sex life, weren’t you?

---Yes.

Can you elaborate on that a bit?---There’s nothing to elaborate, they showed an interest, how’s things going.

Did you tell them who you had sex with?

THE DEPUTY PRESIDENT: Mr Painter, are you chewing gum?---I am, yes.

Would you mind taking that out to the bin, please?---Yes, sorry.

Thank you.

MR PAGE: So did you ever say to Ms Grant or Ms Winter, did you ever name people that you’d slept with on the weekend?---No.

Never?---No.

During the meeting you responded to Mr Simpson and Mr Hudson by stating that the allegations were trivial and taken out of context, didn’t you?---Yes, I did.

Then Mr Simpson informed you that your employment had been terminated, didn’t he?---In the way he said, “You’re finished,” yes that’s what he said.

You understood that to mean that your employment had been terminated?---Yes, I did. 107

[63] This evidence is also largely consistent with that given by Mr Simpson. I therefore accept Mr Simpson’s evidence together with Mr Hudson’s notes as accurately reflecting, that which occurred during the meeting with the Applicant on 28 November 2013.

Termination of the Applicant’s employment

[64] As is clear from the above the Applicant was advised at the conclusion of the meeting on 28 November 2013 that his employment would be summarily terminated on the ground of serious misconduct. The Applicant was given a letter dated 28 November 2013, which confirmed the termination of his employment and the reason therefore 108.

After acquired knowledge of Applicant’s conduct

[65] Ms Yencken gave evidence that shortly after the termination of the Applicant’s employment she had asked another employee of the Respondent, a Ms Hall, to review the desktop computer used by the Applicant whilst employed with the Respondent and the content of the email account used by the Applicant 109. Ms Hall discovered a number of emails in the Applicant’s email account which were of concern to her and which she forwarded to Ms Yencken110. One of the emails contained an attachment comprising photographs, which are of a sexually explicit nature111. The email record shows that the Applicant forwarded that email and it’s attachment to another employee of the Respondent. The Respondent now also relies upon the fact that the Applicant received the email and its attachment, did not delete the email and distributed the email and its sexually explicit attachment to another employee as a further ground justifying summary dismissal of the Applicant for serious misconduct.

[66] The Applicant accepted that he had received, retained and forwarded the material but seemed to rely by way of mitigation on the fact that the email was forwarded to him by a female employee of the Respondent (who is no longer in its employ). The Applicant did not see it as inappropriate, that he forwarded the sexually explicit content to another employee of the Respondent. His evidence on this point is set out below:

Mr Painter, do you remember an employee named - I suspect you do - Gavin Stoneham?---Yes.

Do you recall forwarding him an email on 21 May 2013 which was less than three weeks after your induction titled, “Recognise this couple?” Which contained several naked and sexually explicit images of a lady?---Yes which came from a female co-worker.

I understand that she wasn’t employed at the time you were dismissed, was she?

---No, she did have a relationship with Len Simpson though.

I will just hand this email up to refresh your memory.

. . .

MR PAGE: Can you please confirm what I’ve just handed you, Mr Painter?---It’s an email.

What are the contents of that email?---Pictures of an explicit nature.

Could you elaborate?---Yes, pictures of a couple with clothes on and then without clothes on.

Looking at this email, Mr Painter, it clearly contains sexually explicit and inappropriate content, doesn’t it?---Yes.

So you’d have to admit it was absolutely inappropriate to forward this onto your co-worker Mr Stoneham, wasn’t it?---Well, it was sent from a female co-worker to me between friends, the only - probably the only negative thing is it’s on a work email.

So you’re saying that because a co-worker forwarded that to you?---Female co-worker.

Because it was a female that’s different from a male sending it to you?---No, but it just - it gives a slightly different - it portrays a slightly different picture if it’s coming from a female.

So you’re saying that that justifies you sending it to Gavin?---That’s not what I said, I didn’t say justified. I sent it on to Gavin because we would exchange emails like this between us as co-workers.

So you sent a number of these types of emails to Gavin?---Jokes, I wouldn’t say these type of emails but jokes and yes, emails to - personal emails to Gavin, to Kerry, to different co-workers, yes.

So you don’t believe it was inappropriate to forward that to Mr Stoneham?---I don’t think it was, no. 112

[67] During his evidence Mr Veal was shown a copy of the email and attachments that the Applicant had sent to another employee and was asked whether this conduct was consistent with the fatherly advice that the Applicant should “pull his head in” that Mr Veal gave to the Applicant following the Chantelle Roth and Paula Winter incidents. Mr Veal’s evidence and the context in which it is given is set out below:

THE DEPUTY PRESIDENT: Mr Veal, I just want to ask you a couple of questions. Firstly, going back to the discussion that you had with Mr Painter about the Paula Winter exchange, I think in an exchange with me you indicated that you said to Mr Painter words to the effect that he should pull his head in, do you remember that?---I thought it was more - if I could just dip in here (indistinct) that I think it was more that it was - it was like a discussion point on it, it was - it was - you know it was like it was six people standing around the office discussing this MILF issue.

I understand that, but you had a separate discussion with Mr Painter?---On the back of the - - -

On the back of it, yes?---Yes.

It was during that discussion you told Mr Painter that he should focus on his work and pull his head in?---Yes, yes.

By that you meant focus on his work and not external?---Yes.

That was some time in April?---Yes.

Can I show you this exhibit, this is exhibit 2, it’s an exhibit in the proceedings?

---Thank you.

You can see there that is an email that Mr Painter had forwarded to him and then he on forwarded to another work colleague?---That’s - no, that was a - assuming that that’s after the date.

Yes, it’s after the date, is that consistent with your advice to him?---Obviously I know the name, he was obviously working with us as an administrator.

Then she sends it to him and he sends it on to somebody else, is that consistent with your advice to him that he should pull his head in?---I just find that - yes, certainly the comment - the question would be sorry - - -

I’m asking you whether him forwarding on that explicit email was consistent with your advice to him that he should pull his head in?---No, that’s - I think when you get into that sort of situation that would be something that’s not acceptable.

I’m assuming you weren’t aware of that email?---No, no. 113

It is difficult to disagree with Mr Veal’s assessment.

[68] The Applicant gave evidence that he was not aware whether the Respondent had a policy dealing with email usage 114. I accept that evidence but I do not accept that his lack of awareness of the policy provides an adequate excuse or explanation for the conduct. In my view although it would be wise for any employer to promulgate a policy dealing with appropriate email usage and to make employees aware of the policy, the absence of such a policy does not give licence to an employee to use an employer’s email facility as a vehicle for sending to another employee material that is sexually explicit or offensive. That this is so, is simply a matter of common sense and any suggestion that the absence of an email usage policy rendered the Applicant incapable of judging for himself that the content of the email that he sent to another employee was inappropriate, frankly beggars belief and I do not accept his explanations as an excuse or as mitigating the seriousness of the conduct.

Consideration and application of the statutory framework

Protection from Unfair Dismissal

[69] An order for reinstatement or compensation may only be made if I am satisfied the Applicant was, at the date of his dismissal, protected from unfair dismissal under the Act.

Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[70] There is no dispute, and I am satisfied, the Applicant was, on 28 November 2013, protected from unfair dismissal within the meaning of s. 382.

Was the dismissal unfair?

[71] The Applicant’s dismissal will have been unfair if I am satisfied, on the evidence, that all of the circumstances set out at s. 385 of the Act existed. Section 385 provides:

“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

(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.”

[72] There is no dispute that the Applicant was dismissed at the Respondent’s initiative within the meaning of s. 386 of the Act. As I indicated earlier, in these reasons the Small Business Fair Dismissal Code did not apply to the Respondent and that the dismissal of the Applicant was not for reasons of redundancy.

Harsh, unjust or unreasonable

[73] It remains therefore, for me to consider whether the Applicant’s dismissal was harsh, unjust or unreasonable. The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out at s. 387 of the Act:

“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.”

[74] I am obliged to consider each of these matters in reaching my conclusion and I do so below, having regard to the factual findings earlier made. 115

[75] The ambit of the words ‘harsh, unjust or unreasonable’ in the context of a dismissal was explained in Byrne v Australian Airlines Ltd 116by McHugh and Gummow JJ as follows:

“.... 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 acted, 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.”

[76] Ultimately however it is the matters set out in s. 387 of the Act to which regard must be had. The substance of the Applicant’s argument 117 that his dismissal was harsh, unjust or unreasonable is summarised below. The Applicant submitted that:

● he did not receive any warning about the Chantelle Roth incident and in any event other conduct that he is alleged to have engaged in was mutual and not unwelcome and occurred outside of work;

● although he accepts that he referred to Ms Winter as a “MILF”, he did say after she had referred to herself as a “Cougar” and did not intend to embarrass, hurt or humiliate Ms Winter. The comment was made in jest and is now being taken out of context;

● he did not receive any warning about the Paula Winter incident;

● Mr Veal’s fatherly advice did not amount to a warning;

● he admits that he referred to Ms Grant as “my lover” but says that this is a colloquial term frequently used by him and that once he became aware that Ms Grant had taken offence he immediately apologised;

● he did not engage in the other conduct alleged by Ms Grant and Ms Winter concerning discussions of his private sex life but he admits that he did have in discussions of a personal nature with Ms Grant and that this was mutual. He says that these allegations have been “fabricated and exaggerated on a self-serving basis”;

● he was not given a proper opportunity to respond to the allegations because he did not receive any notice of the meeting at which the allegations were discussed. He did not have a support person with him and he was flustered which prevented him from properly responding;

● he was remorseful as is evident by his apology to Ms Grant and he did apologise during the meeting which ultimately led to the termination of his employment;

● the reference “hello my lover” directed to Ms Grant did not justify summary dismissal;

● he admits sending a sexually explicit email to another employee of the Respondent but says that he had not seen the Respondent’s policy concerning email communication. Further he says that as this allegation was raised after his employment ended he has not had the opportunity to respond to it. He submitted that emails of this kind are circulated on a regular basis among “a high percentage of employees” of the Respondent;

● consequently his dismissal was harsh, unjust or unreasonable.

[77] The Respondent submitted that its dismissal of the Applicant was not harsh, unjust or unreasonable and its argument 118 is summarised below:

● the Applicant most likely engaged in conduct of a sexual nature directed to Ms Roth which made her feel uncomfortable;

● he was given a first and final warning about this by Ms Yencken and received induction training on the Respondents bullying, discrimination and harassment policy;

● the Applicant referred to Ms Winter as a “MILF” in an email to her;

● the Applicant was spoken to, if not warned, by Mr Veal about the incidents involving Ms Roth and Ms Winter;

● the Applicant emailed a number of sexually explicit photographs to another employee of the Respondent;

● the Applicant disclosed details of his private sex life to Ms Grant despite being asked not to do so;

● the Applicant regularly asked Ms Grant out to dinner or drinks;

● the Applicant frequently asked Ms Grant about her relationship with her boyfriend;

● the Applicant frequently referred Ms Grant as “babe”;

● the Applicant said to Ms Grant “hello my lover” during a telephone discussion;

● the Applicant showed very little remorse about his conduct;

● the Applicant’s conduct was wilful and deliberate and inconsistent with a continuation of the contract of employment;

● the Applicant’s conduct caused a serious and inherent risk to the health and safety of Ms Roth, Ms Winter and Ms Grant;

● consequent on the above, the Respondent had a valid reason for terminating the Applicant’s employment, it notified him of that reason and gave him an opportunity to respond to that reason on 28 November 2013. It did not refuse to allow the Applicant to have a support person with him during the meeting on 28 November 2013;

● in all the circumstance the Applicant’s dismissal by the Respondent was not harsh, unjust or unreasonable.

[78] The Respondent also relies on the after acquired knowledge referred to earlier in this decision.

[79] I have considered the competing submissions in the context of my earlier findings and in my consideration of each of the criteria in s. 387 of the Act below.

Valid reason - s.387(a)

[80] There must have been a valid reason for the dismissal of the Applicant related to the Applicant’s capacity or conduct, although it need not be the reason given to the Applicant at the time of the dismissal. 119 The reason should be “sound, defensible and well founded”120 and should not be “capricious, fanciful, spiteful or prejudiced.”121 Where, as in the present case, the Respondent relies on conduct of the Applicant to justify its decision to terminate his employment, I must be satisfied that the conduct as alleged by the Respondent occurred.122 A mere suspicion of conduct does not amount to a valid reason.123

[81] In the context of the present case, whether the reason for dismissal was a sound, defensible and well-founded reason depends in part on whether the Applicant engaged in the conduct alleged and whether the Respondent was entitled to summarily dismiss him for the conduct.

[82] As I indicated earlier in these reasons, I do not think that the Respondent had a sufficient basis to conclude that the conduct alleged to have been engaged in by the Applicant towards Ms Roth was conduct warranting a warning. It seems clear that much of the conduct that was alleged occurred outside of the work environment in a social setting. However unsavoury the Applicant’s comments or conduct towards Ms Roth might have been, there was an insufficient evidentiary basis for the employer to conclude that there was a connection between the conduct and the Applicant’s employment which would otherwise justify a warning. Although I have earlier concluded that I was satisfied that Ms Yencken had given the Applicant a warning about the Chantelle Roth incident, because I have concluded that the warning was not justified in the circumstances I have not given the warning any weight.

[83] As to the Paula Winter incident, the Applicant accepts that he engaged in the conduct alleged but sought to explain his conduct as being motivated by jest and responsive to an earlier email from Ms Winter. As I have indicated earlier above, referring to Ms Winter as “MILF” was not acceptable or appropriate conduct even taking into account her earlier self-deprecating email. Following the incident, the Applicant was, at the very least, counselled about his conduct by Mr Veal. As I have earlier concluded, although Mr Veal has not used the word “warning” 124 during his discussion with the Applicant about the Paula Winter incident, he did tell the Applicant that the conduct “was immature”125, “a silly thing to do”126, to “just stop it”127 and to “pull your head in”128. Taken in its totality, the evidence establishes at the very least that the Applicant was made aware of the conduct complained about by Ms Winter, and told in effect it was not acceptable or appropriate workplace conduct and was told to stop it.

[84] Turning then to the Melissa Grant incident, the Applicant accepts that he said to Ms Grant “hello my lover” but says the other allegations were either unfounded, taken out of context or were remarks made during the course of mutual exchanges between he and Ms Grant. I have rejected the Applicant’s explanation of the conduct. I have also found that the Applicant frequently discussed his personal sex life with Ms Grant and I have accepted Ms Grant’s evidence that this was uninvited. Ms Grant’s evidence that the Applicant often referred to her as “babe” was unchallenged and was not expressly denied by the Applicant. I have also accepted Ms Grant’s evidence that the Applicant frequently asked her out to drinks or dinner and that he made enquiries about her personal relationship with her boyfriend.

[85] In considering whether there was a valid reason for the Applicant’s dismissal, the inquiry is not confined to whether the reason the employer gave for the Applicant’s dismissal was a valid reason but rather the question is whether there was a valid reason for the Applicant’s dismissal 129. It is in this context that the sexually explicit material sent by the Applicant by email to another employee becomes relevant. The Applicant accepts that he sent the email and attachment but said that he was not aware of any email usage policy and that sending emails of this kind was a widespread practice. I have already found that the Applicant’s lack of awareness of the Respondent’s email usage policy is not a factor I regard as mitigating, explaining or justifying the conduct. There is no evidence of the practice being widespread or condoned by the Respondent as suggested by the Applicant.

[86] Facts that are in existence at the time of the dismissal, but which only come to light later, may in some circumstances, justify a dismissal or render an otherwise harsh, unjust or unreasonable dismissal not so 130. Whether reliance can be placed on matters which come to light after the dismissal will depend on all of the circumstances, so that if an employer has failed to take reasonable steps or make reasonable enquiries which would have brought the existence of the facts to light before the dismissal, then this would weigh against such reliance131.

[87] Short of monitoring and reviewing all emails sent and received by its employees, the Respondent could not have taken any other reasonable step to discover the email in question. Given the size of the Respondent’s enterprise I do not regard the failure to monitor and review emails as a failure to make reasonable enquiries or to take reasonable steps. I therefore propose to take into account the conduct of the Applicant, in sending the sexually explicit email to another employee in my assessment of whether there was a valid reason for the termination of the Applicant’s employment.

[88] When account is taken of the earlier counselling received by the Applicant in relation to the Paula Winter incident, in my view the conduct of the Applicant that I have found to have been engaged in, toward Ms Grant is misconduct. When this conduct is considered in light of the inappropriate email, which I also regard as misconduct, this results in a clear pattern of inappropriate workplace behaviour that has been engaged in by the Applicant. In my view when the conduct is viewed together, there can be little doubt that the Respondent had a valid reason for the Applicant’s dismissal related to the Applicant’s conduct, and I so find.

[89] Turning next to the question of whether the Respondent was justified in terminating the Applicant’s employment summarily, I have already concluded that the Applicant’s conduct towards Ms Grant and the inappropriate email sent to another employee was misconduct. The question that remains therefore is whether the degree of misconduct was of such a kind as would allow summary dismissal. Conduct that is misconduct will justify summary dismissal if it is so seriously in breach of the contract that by standards of fairness and justice an employer should not be bound to continue the employment 132. In this case, the Applicant agreed by his contract of employment133 to comply with the Respondent’s policies. The Applicant had the terms of the Respondent’s bullying, discrimination and harassment policy explained to him at the time that he entered into the employment contract. That policy prohibits the kind of conduct that the Applicant engaged in and which was directed towards Ms Grant. When this breach of contract is considered in combination with the sending of the sexually explicit email, and in light of the earlier counselling that the Applicant had received from Mr Veal, in my view there is a proper basis to conclude that the Applicant engaged in serious misconduct and that the employer can rely upon the totality of this behaviour to justify the summary dismissal of the Applicant.

Notification of the valid reason - s.387(b)

[90] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 134 in explicit terms135 and in plain and clear terms136. In Crozier v Palazzo Corporation Pty Ltd137 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 138

[91] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason in s. 387(c), involves consideration of whether procedural fairness was afforded the Applicant before his dismissal was effected. Satisfaction of the notification requirement will usually require a straightforward factual inquiry to be made, namely: what was the Applicant told about the reason for the dismissal, before the dismissal took place?

[92] The Applicant was notified of the reason the employer relied on to justify dismissal, namely the conduct directed toward Ms Grant. This occurred at a meeting held on 28 November 2013 and this notification was given before the decision to dismiss the Applicant 139. The Applicant was not notified of the reason to the extent that the employer now relies upon the after acquired knowledge relating to the sexually explicit email sent by the Applicant during his employment with the Respondent. The Applicant has admitted the conduct, but has sought to justify the conduct partly because he was not aware of the Respondent policy, a justification which I reject, and partly because that kind of conduct was common in the workplace, a proposition for which no evidence was advanced.

[93] The Applicant was advised of the reason that the Respondent relied upon on the day it dismissed the Applicant from his employment. That it did not (and could not then) advise him of the after acquired knowledge is in all the circumstances not a factor that weighs significantly against the Respondent.

Opportunity to respond - s.387(c)

[94] An employee protected from unfair dismissal should be given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. The consideration of whether and to what extent that opportunity was given is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 140 Recently in Pitts v AGC Industries Pty Ltd141 a Full Bench of the Commission said:

“In considering whether the Commissioner was satisfied that the dismissal of the Appellant was harsh, unjust or unreasonable the Commissioner was required to take into account, inter alia, whether the Appellant was given an opportunity to respond to any reason related to his capacity or conduct. This opportunity must have been afforded to the Appellant before a decision to dismiss is made. The process involved in providing the Appellant with such an opportunity does not require formality and is to be applied in a common sense way, to ensure that the Appellant has been treated fairly. In this regard we reject so much of the Appellant’s submissions which asserts that this requires an employer to conduct a meeting with the employee to inform the employee of the reasons for the proposed dismissal or otherwise provide the employee with an opportunity to address the concerns in writing.” 142 (Citations omitted)

[95] The evidence clearly establishes that the Applicant was given an opportunity on 28 November 2013 to respond to the allegations concerning his conduct toward Ms Grant, and to the extent relevant to the Respondent’s consideration, his earlier conduct toward Ms Winter. The evidence established that the Applicant used that opportunity to explain and to contextualise his conduct. Self-evidently he was not given an opportunity to respond to the after acquired knowledge gained by the Respondent. The Applicant has given his response to that allegation during the course of these proceedings. I have found his response unpersuasive. As with the failure to notify of this aspect of the reason, that the Respondent did not (and could not then) give the Applicant an opportunity to respond to the after acquired knowledge aspect of the reason, is in all the circumstances not a factor that weighs significantly against the Respondent.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[96] If an employee protected from unfair dismissal has requested that a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse to allow that person to be present.

[97] It is clear from the plain language of s. 387(d) that this consideration is directed to an employer’s unreasonable refusal to allow a support person to be present. It is not concerned with whether an employer offered the employee such an opportunity. In most cases, the section will be engaged if the employee asks for a support person to be present and the employer refuses the request. 143 It may well be appropriate in some cases to consider the overall circumstances in which meetings to discuss an employee’s performance, capacity and conduct or dismissal occurred to properly determine whether there was an unreasonable refusal by the employer to allow the employee to have a support person present. This is not such a case.

[98] The Applicant suggested, given the seriousness with which the Respondent was treating the allegations, that it should have offered him the opportunity to have a support person with him during the meeting on 28 November 2013. He suggested that this obligation arose because Ms Grant had a support person with her when she was being interviewed about her allegations 144. I reject that submission. There is no basis in fact or law, which would support the proposition. The statute does not place any obligation on an employer to advise an employee that he or she should have a support person with them at any meeting at which that employee’s employment might be in jeopardy. Moreover having observed the Applicant during the course of those proceedings, he is in my opinion, more than capable of requesting a support person if that was his desire.

[99] The Applicant did not ask for support person and the employer did not therefore refuse to allow the Applicant to have a support person.

Warnings regarding unsatisfactory performance - s.387(e)

[100] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct 145. For the reasons given earlier in this decision I am satisfied that the Respondent dismissed the Applicant for reasons relating to conduct and not his performance. The Respondent did not rely on, and did not make any submission to the effect that the Applicant’s dismissal related to, his performance. It follows that in the circumstances of this case, this factor is not a material consideration. I have dealt with the “warning” related to the Applicant’s conduct towards Ms Winter earlier in these reasons.

Impact of the size of the Respondent on procedures followed - s.387(f)

[101] The size of the Respondent’s enterprise did not impact on the procedures followed by the Respondent in effecting the dismissal. Nor was any submission made by either party, which would suggest that this factor is a material consideration in the context of this case.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[102] The absence of dedicated human resource management or expertise in an employer’s enterprise may also impact on the procedures followed by an employer in effecting a dismissal. The evidence in this case so far as it relates to this consideration is uncontroversial. It is clear that the Respondent not only had access to dedicated human resources expertise but that it is used that expertise in the form of Ms Yencken. This factor is a neutral consideration in the context of this application.

Other relevant matters - s.387(h)

[103] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant. I take into account the following matters. Firstly, it seems to me clear that the neither the Applicant nor the Respondent was well served by Mr Veal’s approach to employee discipline and counselling and his fatherly advice. The Applicant did not receive the message his conduct was unacceptable as clearly as he should have or as best practice would suggest. The Respondent did not receive the benefit of a clear message to the Applicant being given by one of its senior managers. This might explain why the Applicant maintains that he was not given a “formal” warning and why he considers the conduct towards Ms Grant was not serious. I therefore weigh in slight favour of the Applicant the fact that the Respondent through Mr Veal, did not communicate clearly enough to the Applicant the unacceptable nature of his conduct toward Ms Winter and the consequences of engaging in that conduct in the future.

[104] Secondly, I take into account that the Applicants 457 Visa status might have been affected by the termination of his employment by the Respondent.

[105] Thirdly, I take into account the Applicant’s length of service, which was relatively short.

Conclusion

[106] Taking into account each of the matters discussed above, I have come to the conclusion dismissal of the Applicant was not harsh, unjust nor unreasonable. In my view, the Applicant’s conduct when viewed in its totality, justified dismissal summarily. On the evidence that I have accepted, the Applicant’s conduct in relation to Ms Winter, Ms Grant and the sexually explicit email demonstrate that he repeatedly engages in conduct that is inappropriate in a workplace. That he was given “fatherly advice” instead of a warning and that his 457 Visa status might have been affected by his dismissal are not so significant factors as to render the dismissal unfair. The Applicant’s conduct was in my view inconsistent with a continuation of the contract of employment.

[107] The application for an unfair dismissal remedy is dismissed. An order to that effect is issued separately in PR550087.

DEPUTY PRESIDENT

Appearances:

M. Painter on his own behalf

T. Page for the Respondent

Hearing details:

Melbourne.

2014.

6, 7 May.

Final written submissions:

Applicant 30 May, 19 June 2014

Respondent 13 June 2014

1 Transcript PN 240

2 Ibid; Respondent's Outline of Submissions [6]

3 Exhibit R3 at CY-2

4 Exhibit R6 at LS-1

5 Transcript PN 238

6 Exhibit R3 at [5]

7 Ibid

8 Exhibit R3 at [6]

9 Exhibit R3 at [7]

10 Ibid

11 Ibid

12 Ibid

13 Ibid and at [8]

14 Exhibit R3 at [8] and at CY-1

15 Exhibit R3 at CY-1 at p3-4

16 Exhibit R3 at CY-1 at p4

17 Exhibit R3 at CY-1 at p7

18 Ibid

19 Ibid

20 Ibid

21 Exhibit R3 at CY-1 at p8

22 Exhibit R3 at CY-1 at p7

23 Exhibit R3 as [9]

24 In or about mid April 2013, Ms Paula Winter told Ms Yencken that the Applicant had referred to Ms Winter as a "MILF". In the substance of this allegation was dealt with later in these reasons.

25 Exhibit R3 as [9]

26 Ibid

27 Transcript PN 276

28 Exhibit R3 at [10]

29 See transcript PN 40 and transcript PN 108 – PN 132

30 Exhibit R3 at [12]

31 Ibid

32 Ibid; See also CY – 3 and CY – 4 thereto

33 Exhibit R3, CY – 1

34 Transcript PN 126 – PN 150

35 Exhibit R4 at [13]

36 Ibid

37 Transcript PN 568-571

38 Exhibit R7

39 Transcript PN 732

40 Transcript PN 730 – PN 741

41 Exhibit R6 at [18]

42 Transcript PN 134

43 Transcript PN 137 – PN 141

44 See for example Transcript PN 884 - PN 885; PN 1028 - PN 1036; and PN 1068 - PN 1072

45 Transcript PN 480 and PN 488

46 Transcript PN 128

47 Exhibit R3 at [13]

48 Transcript PN 252

49 Transcript PN 253 – PN 256

50 Transcript PN 282 – PN 288

51 Transcript PN 330 – PN 334

52 Transcript PN 960

53 Exhibit R3 at CY-6

54 Transcript PN 968

55 Transcript PN 278 - PN 286

56 Transcript PN 225

57 Transcript PN 283

58 Exhibit A1 at p 2

59 Transcript PN 287

60 Transcript PN 283

61 Ibid

62 Ibid

63 Transcript PN 282, PN 283 – PN 286 and PN 288

64 Transcript PN 225

65 Transcript PN 243

66 Transcript PN 148 – PN 150

67 Transcript PN 225

68 Exhibit R8 at [1]

69 Exhibit R8 at [4]

70 Transcript PN 823 – PN 830

71 Transcript PN 169 – PN 171

72 Transcript PN 876 – PN 877

73 Transcript PN 910 – PN 912

74 Transcript PN 969 – PN 974

75 Transcript PN 1038

76 Transcript PN 909

77 Transcript 1038

78 Transcript PN 1029 – PN 1035 and PN 1067 – PN 1072

79 Exhibit R8 at [4] and [5]

80 Transcript PN 831 – 841

81 Transcript PN 980

82 Transcript PN 928 – PN 935

83 Exhibit R8 at [7] – [11]

84 Exhibit R8 at [7] - [10]

85 Transcript PN 846 – PN 847

86 See exhibit R8 Annexure C

87 Transcript PN 43; See also Applicant's final submissions in reply and dated 19 July 2014 at page 2

88 See exhibit R8 Annexure A

89 See transcript PN 44 – PN 83

90 Transcript PN 44

91 See transcript PN 54 – PN 80

92 See transcript PN 89 – PN 92

93 Exhibit R8 as [8]; Transcript PN 846 – PN 847

94 Exhibit A1

95 Transcript PN 981

96 Exhibit R6 at [4]

97 Exhibit the R4 at [7]

98 Exhibit R4 at [7] and [8]; Exhibit R6 [4] – [6]

99 Exhibit R4 at [8]; exhibit R6 [7]

100 See also exhibit R 4 at [10]; Exhibit R6 at [12]

101 Exhibit R7

102 Exhibit R6 at [15] – [20]

103 Transcript PN 682

104 Exhibit R4 [10] – [15]

105 Exhibit R7

106 Exhibit A1

107 Transcript PN 155 – PN 180

108 Exhibit R6, LS – 1

109 Exhibit R3 at [19] – [20]

110 Exhibit R3 at [21]

111 Exhibit R2

112 Transcript PN 181 – PN 197

113 Transcript PN 315 – PN326

114 TTranscript PN207 – PN208

115 Sayer v Melsteel[2011] FWAFB 7498

116 (1995) 185 CLR 410 at 465

117 See Michael Painter submission 30 May 2014 and Michael Painter final submission 19 June 2014

118 See Respondent’s outline of submission 24 April 2014 and Respondent’s closing submissions 13 June 2014

119 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378

120 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

121 Ibid

122 King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213)

123 Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1

124 Transcript PN 287

125 Transcript PN 283

126 Ibid

127 Ibid

128 Transcript PN 282, PN 283 – PN 286 and PN 288

129 MM Cables v Zammit AIRC Full Bench Print S8106

130 Concut v Worrell (2000) 176 ALR 693; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 9

131 See for example Lane v Arrowcrest (1990) 43 IR 210; see also approval of Lane in Byrne v Australian Airlines Ltd (1995) 185 CLR 410

132 See for example North v Television Corporation Ltd (1976) 11 ALR 599 and Gooley v Westpac Banking Corporation [1995] 59 IR 262

133 Exhibit R3 at CY-2 at p 9

134 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

135 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

136 Previsic v Australian Quarantine Inspection Services Print Q3730

137 (2000) 98 IR 137

138 Ibid at 151

139 Transcript PN 669-PN 672

140 RMIT v Asher (2010) 194 IR 1 at 14-15

141 [2013] FWCFB 9196

142 Ibid at [4]

143 See also Explanatory Memorandum to the Fair Work Bill 2008 at [1542]

144 Transcript PN 673

145 Annetta v Ansett Australia (2000) 98 IR 233 at 237

Printed by authority of the Commonwealth Government Printer