Miroslav Vujica v TNT Australia Pty Ltd

[2014] FWC 4790

[2014] FWC 4790

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Miroslav Vujica
v
TNT Australia Pty Ltd
(U2014/4352)

DEPUTY PRESIDENT SAMS SYDNEY, 1 AUGUST 2014

Application for an unfair dismissal remedy - serious misconduct - working for another employer while certified medically unfit - threatening letter sent to employer - dishonesty during investigation - applicant’s denials implausible - valid reasons for dismissal - no mitigating circumstances - no circumstances of procedural unfairness - dismissal not ‘harsh, unreasonable or unjust’ - application dismissed.

[1] On 21 January, 2014, Mr Miroslav (Michael) Vujica (the ‘applicant’) was dismissed from his employment with TNT Australia Pty Ltd (the ‘respondent’ or ‘TNT’) for serious misconduct. The applicant was employed as a forklift driver at TNT’s depot at Enfield, New South Wales. He has had ten years of service with the respondent. The termination of employment letter identified two allegations, both of which, according to the respondent, demonstrated the applicant’s dishonesty. The letter elaborated as follows:

‘1. A letter sent by you to Susan Davies of TNT which you claim had not been sent by you; and

2. Work performed by you at Toll during your alleged incapacity for work with TNT.

The letter advised that should TNT make a finding that you did send the original letter and that you have been dishonest to TNT rejecting that you sent the letter, or that you have been performing work for Toll while allegedly incapacitated to perform work for TNT, your employment may be terminated for serious misconduct.

It is noted that your period of incapacity for which you have provided to TNT two medical certificates covered the period 6 December 2013 through to 13 January 2014. The certificate is marked, “has no current work capacity for any employment from [sic].”

It is further noted that you have presented a third medical certificate covering the period 13 January 2014 to 10 February 2014 for capacity for some type of employment for 5 hours per day, 3 days per week, office duties only.

You attended the meeting of Thursday, 16 January 2014 with your support person, Mark Cochrane, NUW Organiser. I was present, together with Jennifer Hunt, Employee Relations Manager.

You were informed that if TNT made a finding as a result of the meeting that you had been performing work at Toll from 6 December 2013, during the period of your alleged incapacity, this would constitute a fraud against TNT.

Mr Cochrane agreed that it would be a serious matter, warranting termination of employment.

You stated that you deny working at Toll during the period from 6 December 2013, or at all. You stated that you have never worked at Toll or for Toll.

You were advised that TNT had obtained the following information from Toll:

a. You have worked for Toll for a considerable period of time at the Toll Moorebank facility through a contractor, New Line Transport;

b. This period of time includes work performed from 6 December 2013 and least the following week;

c. You had sent to Mr Richards of Toll an email from the email address [address supplied] with the following information:

(i) you have worked for Toll for a period of 2 years through New Line Transport;

(ii) you feel aggrieved that a TWU delegate is now preventing from performing more work at Toll;

(iii) during mid-December the work at Toll stopped;

(iv) you only live 800m across the river from the Toll depot;

(v) you are ready, willing and able to recommence performing work for Toll;

(vi) you wish to know the name of the Toll delegate so that you can bring a claim in tort against the individual.

You were asked if you agree that you sent the above email to Toll. You said that you did not wish to answer that question. You were informed that the above email address matches the email address used to email TNT.

You repeatedly denied having worked at Toll from 6 December 2013 or at all.

With respect to the letter sent to Susan Davies including threats to report TNT to authorities, you maintained that you did not send the original letter and that your girlfriend must have sent it on your behalf. When asked how your girlfriend would have relevant knowledge of the individuals and events, together with the material attached to the letter, you indicated that you did not know. You stated that you had only recently seen a copy of the letter.

You were informed that TNT held a preliminary view that you had sent the first letter and had now sought to deny sending it. It is agreed that you sent a second letter detailing concerns with the forklift seat belt.

You were informed that if TNT made a finding that you had sent the first letter, and now were telling an untruth in claiming not to have sent it, it would constitute serious misconduct and TNT would not be able to continue your employment due to loss of trust and confidence in you in being an honest employee.

After an adjournment of the meeting, you were advised that your employment with TNT was terminated for serious misconduct. TNT’s findings are that you have performed work at Toll for the period from 6 December 2013 and having produced two medical certificates to TNT declaring total incapacitation for this period, working at Toll during your alleged period of incapacitation constitutes a fraud against TNT.

TNT further finds that you did send the first letter to Susan Davies, and does not accept your claim that your girlfriend sent the letter without your knowledge. On the balance of probabilities, TNT finds that you did send the original letter. It needs to be made clear that TNT has already addressed with you in our response to the letter, dated 16 December 2013, the issue of making threats. TNT’s response included, “If further threats of this kind are directed to TNT, appropriate disciplinary action will be taken with you.”

Your termination of employment with respect to this issue is not because the first letter contains threats; it is because TNT finds that you did send the first letter and in denying having sent it, you are not telling the truth. TNT cannot continue to have you in the business having found you to be dishonest.

You were informed that your employment was terminated with immediate effect. You have been paid up to and including Thursday, 16 January 2014.

It is noted that you have been paid sick leave for 6, 9, 10 and 11 December 2014, despite not being entitled to be paid (given your concurrent performance of work at Toll and therefore the invalid medical certificate presented to TNT). TNT reserves its right to recover this overpayment from you.

Please ensure that all TNT company property is returned.’

[2] At this juncture, I do not understand there to be any serious challenge to the proposition that if either of these allegations is found to be proven, the respondent would be entirely justified in dismissing the applicant and unless there were overwhelming mitigating factors, the Commission would be highly unlikely to intervene to disturb or overturn that decision.

[3] Two other issues were canvassed by the applicant during these proceedings which were complaints he had made to the Management of the respondent. These were:

● his continued refusal to wear a forklift seatbelt; and
● his unsuccessful claim before the Local Court in December 2013 for alleged unpaid overtime.

[4] The respondent also highlighted a number of warnings issued to the applicant since 2010. However, the respondent put that these warnings need not have been considered, given the seriousness of the allegations earlier mentioned. Unsurprisingly, the applicant strongly contested the allegations and offered a number of explanations for his conduct, which I will come to shortly.

[5] On 5 February 2014, the applicant filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), seeking reinstatement and/or compensation for his dismissal, which he claims was ‘harsh, unreasonable and unjust’ (s 385(b)). The Commission is satisfied that the applicant has standing to bring this application in that:

● the application was filed within the 21 days time limit (s 394(2));
● the applicant was employed for the minimum employment period (s 383);
● the applicant’s salary did not exceed the statutory cap (s 382(b)(iii));
● the respondent is a national system employer (s 380) with approximately 3,500 employees and is obviously not subject to the Small Business Fair Dismissal Code (s 385(c)); and
● the applicant’s dismissal was not a case of genuine redundancy (s 385(d)).

[6] Determining whether the applicant was unfairly dismissed requires the Commission to make findings under s 387 of the Act as follows:

‘(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.’

[7] I shall come back to these provisions later. The application was subject to the Commission’s usual conciliation procedures, but this did not produce any settlement of the applicant’s claim. At a hearing of the matter on 12 June 2014, the applicant represented himself and Mr A Moulton appeared for the respondent. In passing, it is curious that while the applicant was represented by the National Union of Workers (NUW or the ‘Union’) at the disciplinary meeting on 16 January 2014, the Union did not take any part in these proceedings.

THE EVIDENCE

[8] The following persons gave written and oral evidence in this case:

● The applicant;
● Mr Mark Scanlan, PM Operations Manager at TNT’s Enfield Depot;
● Mr Tony Merhi, Process Manager, TNT;
● Mr David Leak, HUB Manager at TNT’s Enfield Depot; and
● Ms Jennifer Hunt, Employee Relations Manager, TNT.

I intend to deal primarily with the evidence from both parties in respect to the two serious allegations of dishonesty.

Letter sent to Ms Susan Davies, Human Resources Manager

[9] This issue has some background, which I outline as follows. On 14 November 2013, the applicant received a written warning for repeatedly failing to wear the forklift drivers’ seatbelt in accordance with the respondent’s safety policies requiring a safety belt to be worn at all times while operating a forklift.

[10] A letter, purportedly from the applicant, was subsequently sent to Ms Davies, in which it was said that the applicant complained that the seatbelt was badly designed and caused discomfort. The letter further claimed that the applicant had been unfairly targeted and the warning letter and punishment were just a ruse to make his life miserable. The letter threatened that unless Ms Davies told the applicant’s supervisor to leave him alone, he would report every safety breach by TNT he found to the Roads and Maritime Service. The applicant’s answer to this allegation was that he had not sent the letter; rather his girlfriend had done so, without his approval or knowledge.

[11] As the applicant was extensively cross-examined about the style and content of this letter, it is helpful to set it out in full below and then deal with the applicant’s evidence about it:

‘Hello Susan.

I have a problem at work, and instead of making an official complaint I’ll try first talking to you privately instead.

Attached is a warning letter issued to me recently over forklift seat belt [sic]. I don’t know if you’re aware that all our forklifts were replaced recently. These new forklifts have an incredibly badly designed seat belt which gets tighter and tighter as the forklift travels over bumps and humps, and unlike the car seat belt, it is not possible to loosen the belt at all. The only way to loosen this belt is to unbuckle it, retract it completely and refasten it. Unfortunately, the moment the belt is unclipped, the forklift is immobilized. I have serious issues with this, which I have mentioned to the member of OHS committee and former PM Managers here in Enfield - Mr. Lance Miles and Mr. Brian Edwardson. I have explained that a seat belt this tight over my stomach causes me discomfort and has a real potential to cause me chafing of the skin and eventually - a skin infection. It is absolutely unsafe to refasten the belt while our PM operation is in full swing, as this renders the forklift immobile, and the risk of being hit by another forklift or a truck is very real. Furthermore, while carrying pallets which are taller than my eye level it is necessary to drive the forklift in reverse. This is absolutely impossible to do safely as the belt is so tight and is preventing me to turn my upper body backwards. This puts an undue strain on my neck and also has a potential to cause me injury. Driving backwards without having a sufficient vision of my path puts everyone else at risk of being hit by me, which I absolutely want to prevent.

I have explained all this as I’ve already said above, and I have found that only way to be able to work without a risk to my health and others’ safety - is to not wear a seat belt. Instead of addressing my issues in a proper manner, I have been threatened, and finally issued with a warning letter.

I would like to draw your attention to the so-called “safety bulletin” attached to my letter: these have been posted shortly after the forklift change due to many if not all of my colleagues having the exact same issues as I have just described. The solutions they have found were as pictured in these notices. Again, instead of recognizing the issue and finding a solution, the management has simply posted these notices.

To recap - most if not all of my colleagues have the exact same issue with this as I have described above, yet I am the only one who has received this warning letter. This leads me to believe that I am being unfairly targeted and the duty of care is just an excuse to do this. My “punishment” is one week of loading trailers by hand. Few years ago I have suffered a back and shoulder injury which has already started to cause me some discomfort; clearly this duty of care does not apply and is just a ruse to make my life miserable for raising this OHS issue and being vocal about it.

So, I would like to ask you for a favour: please call the PM manager in Enfield who issued me this warning letter and tell him to leave me alone. If he continues with this course of action quoting me “duty of care” I might suddenly start to feel my own duty of care to the general public and start reporting to relevant authorities all the illegal and unsafe practices taking place in this yard on a daily basis. RMS might start receiving reports of every illegally loaded trailer, every broken gate and every frayed strap.

Please. Make the call and tell this man to leave me alone. If I am not driving my forklift without him harassing me by the end of this week, the RMS infringement notices will soon start arriving in the TNT head office in boxes, not in envelopes.

Miroslav Vujica’

[12] The applicant gave evidence that up until mid-2012, forklift operators were not required to wear seat belts. When new inferior Toyota forklifts were introduced at this time, the seat belts were very uncomfortable and restrictive and would completely disable the forklift, unless the seat belt was fastened. The applicant claimed that because the forklift drivers often dismount from the forklifts, the drivers improvised various means of keeping the seat belt engaged without being restricted by it, such as by fastening it behind or under the seat or tying a knot in it to prevent it retracting. As a result, the applicant said employees were threatened with disciplinary action for not wearing the seatbelt.

[13] The applicant said he raised his safety concerns with the Occupational Health and Safety (OHS) Committee in order for the respondent to investigate and analyse the problem, rather than resort to threats of discipline. To his knowledge, neither the OHS Committee or Management investigated his complaint. The applicant continued not wearing the seat belt and was warned by Operations Manager, Mr Mark Scanlan, in early 2013. He believed he had been singled out, bullied and victimised for raising a legitimate OH&S issue. He stated:

‘I saw no legal compulsion and no logical reason to accept a safety device which endangers my health and at the same time - the safety of others. At the same time, many other OHS issues arise at the workplace and are simply ignored.’

[14] The applicant then made a number of complaints concerning safety breaches being ignored on a daily basis in respect to:

● unloading of trucks;
● failure to issue of wet weather gear;
● managers and supervisors walking through forklift areas while using mobile phones;
● trucks exceeding the depot speed limit;
● breach of rules regarding carrying one item at a time;
● unsafe carrying of large steel freight bins;
● trucks operating at night without adequate lighting; and
● lack of safety barriers.

[15] The applicant claimed that his ‘punishment’ of one week working in the trailer loading area became a permanent assignment and he was never required to re-undertake the Winston Forklift Test.

[16] It was the applicant’s belief that his then girlfriend decided to take matters into her own hands after observing how frustrated and mentally and physically exhausted he had become. She wrote the letter to Ms Davies, using phrasing similar to his own, printed the letter and sent it, unsigned, to the respondent. While he agreed she went ‘a little too far’ with the threats, she was simply trying to resolve the situation. Shortly afterwards, their relationship ended, because she had gone behind his back.

[17] In cross examination, the applicant agreed that in the disciplinary meeting of 16 January 2014, Ms Hunt asked him the name of his ex-girlfriend and he refused to name her. He now said her name is Katherine Vladimorna and she is now with her family in Ukraine. The applicant was asked and answered the following questions

● How his girlfriend would know Ms Davis’ name - He said Ms Davis’ name may have been on other of his emails;
● Whether she had ever operated a forklift and how she would know the specifics of doing so - He said that he would have explained it to her;
● How she would have known the two managers mentioned and the spelling of their names;
● How she would have known when the forklifts changed - He said he had told her;
● How she would know his colleagues shared his views;
● How she would have detailed knowledge of the operation of the forklifts - He said he had told her;
● Why she would have used the same introductory words he had commonly used in emails to managers;
● Whether he had asked for a favour as she had done in her alleged email; and
● Why both letters threatened legal consequences if his requests were not agreed to.

[18] The applicant was also asked if he was aware that a TNT employee suffered permanent brain injuries after crashing his forklift while not wearing a seatbelt in 2011 and another incident at Enfield where a forklift driver was killed instantly while operating a forklift.

[19] The applicant denied he had a habit of raising complaints with Management when he did not like decisions that had been made. He agreed he had sent a detailed letter to the respondent’s Managing Director and to TNT’s headquarters in Amsterdam making various complaints.

[20] In answer to questions from me, the applicant said his ex-girlfriend never checked the grammar, spelling or facts of the letter with him before sending it. He denied lying to the respondent about who wrote the letter.

Mr Mark Scanlan

[21] Mr Scanlan stressed that it was TNT’s policy that all forklift drivers wear a seatbelt. He referred to the serious injury and death of two forklift drivers at TNT depots.

[22] Mr Scanlan said that shortly after commencing his current role in September 2013, he conducted a meeting of all forklift drivers to reiterate TNT policy on wearing seatbelts and the importance the Company placed on safety. He recalled the applicant was present and all the drivers acknowledged that they understood what was expected of them.

[23] On three occasions in November 2013, Mr Scanlan observed the applicant not wearing a seatbelt. On the third occasion, he directed the applicant to park the forklift, work in the trailer loading area for a week and gave him a written warning. The applicant did not approach Mr Scanlan to re-sit the Winston test. If he had done so and passed it, he would have resumed forklift driving duties.

[24] In cross examination, the applicant sought to take issue with Mr Scanlan’s statements referring to his address as the company’s address. Mr Scanlan was then asked whether his statement would be the same if he had not been authorised to make his statement on behalf of TNT.

[25] Mr Scanlan confirmed that the electric forklifts have seatbelts, but the pallet jacks do not because they are ‘stand-on’ operations. Mr Scanlan insisted that it was the applicant’s responsibility to ask to re-sit the test, as his warning letter made clear.

Mr David Leak

[26] Mr Leak was aware the applicant had written a letter to TNT complaining about the requirement to wear a seatbelt and the warning he received for not doing so. The applicant had claimed his abdomen might become chafed.

[27] Mr Leak reviewed Ms Hunt’s draft letter in reply, in which the applicant was informed that the warning was validly issued and he would be required to re-sit the Winston Forklift Test. He was reminded to report any safety concerns to Management and his designated OHS representative.

[28] Mr Leak was informed that the applicant’s complaint letter had been sent by his girlfriend, not him. Given the detail in the letter, Mr Leak did not believe this. On 23 December 2013, the applicant emailed various TNT Managers with an email titled ‘TNT Forklift Bullshit’. Mr Leak said it contained similar detail to the letter the applicant denied sending. Mr Leak decided to arrange a meeting in the new year to put allegations to the applicant and allow him an opportunity to respond.

Ms Jennifer Hunt

[29] On 16 December 2013, Ms Hunt sent an email to the applicant arising from the letter sent to Ms Davies. Ms Hunt found that the warning letter issued to the applicant was validly issued and it was an inherent requirement for forklift operators to wear a seatbelt. She told him that disciplinary action would be taken if further threats were made against the Company. That evening, the applicant replied:

‘Jennifer,

You must be mistaken. I haven’t sent my letter to Susan Davies yet.’

[30] Ms Hunt thought his response odd and wondered why he used the word ‘yet’, when it had been over a month since the warning letter. After the applicant told Ms Hunt that his girlfriend sent the letter, Ms Hunt did not believe him, given the unnamed girlfriend knew details of the functions of the seatbelt and the forklifts and the names of relevant managers.

Working for Toll/Ipec (‘Toll’) while on workers’ compensation

The applicant

[31] The applicant claimed he was injured in the fourth week of working in the trailer loading area. He said he sustained injuries to both shoulders, neck and upper spine from lifting freight above his shoulders and head. He declined treatment from the respondent’s medical provider, Workcare, because of a previous bad experience when he was injured in 2010.

[32] The applicant attended his own doctor, Dr Pukanic, the next day (6 December 2013) and was issued with a certificate declaring him unfit for all duties for one week. On 9 December 2013, he attended the respondent’s offices to complete a Workers’ Compensation form. He believed the OH&S Coordinator, Mr Arentz did not consider his injuries to be real when he asked how he got to the office. It was by motorbike.

[33] After a second visit to Dr Pukanic, the applicant was certified unfit for duties for a month with recommended diagnostic examinations (I note he seemed to think it was up to the diagnostic laboratory to call him to make the appointment). After receiving the radiologist’s opinion, Dr Pukanic certified him fit for office duties three days per week. He took his medical certificate to the respondent on 14 January 2014 and was immediately told to attend a meeting with Management. He said Mr Arentz displayed his ‘usual total disregard for the welfare of injured employees’ by deciding he was to work Mondays, Wednesdays and Fridays, rather than his preference of an uninterrupted block of three days.

[34] At this meeting, the applicant was also asked about alleged employment at another workplace while unfit for duties. He said he refused to answer because after 11 years of employment, he had learnt that the respondent:

● would ignore any answers other than those which matched its pre-formed opinion; and
● had no legal right to intrude into his private life outside the workplace.

[35] A second meeting with the applicant was held on 16 January 2014, attended by the NUW official (Mr Cochrane), Mr Leak and Ms Hunt. The applicant complained the respondent would not discuss his underpayment claim or the OH&S issue with the seatbelts, but focused only on the allegations he had been working for a competing transport company while totally unfit. He was asked three times if he had sent an incriminating email to Toll, but he refused to answer and Ms Hunt would not provide him with a copy of the email.

[36] The applicant claimed that none of the serious issues raised had been addressed, including:

● taking legal action to recover unpaid overtime;
● declaring him to be dishonest when his girlfriend’s letter was not signed and there were no witnesses to him writing or sending it;
● the respondent’s selective application of its OHS rules;
● unlawful intrusions by the respondent into his private life. The applicant claimed he had no employment at the time it was alleged he was working for Toll; and
● the respondent had refused to accept liability for a workers’ compensation claim, despite the medical evidence.

[37] The applicant also said he had never been subject to any disciplinary action, despite a warning letter in 2010 for repeated customers’ complaints. He proceeded to explain the incident leading to this warning, but I need not detail it here, except to observe that he believed he was the ‘victim’ and the respondent had ‘manufactured’ the evidence against him.

[38] The applicant conceded there had been seven complaints made against him in eight years as a driver. However, he countered that there was no policy defining how many complaints is too many. In any event, he said that all employees who had complaints made against them were considered guilty and their explanations ignored.

[39] In cross examination, the applicant agreed he had previously denied having worked for Toll or New Line Transport. He said that he did not comprehend what Ms Hunt had meant by paid employment. He agreed he had neglected to tell Ms Hunt he was a director of Taurus Nationwide Transport and this Company owned and leased a prime mover. Taurus provided services to New Line Transport, which in turn provided services to Toll. He did not tell her that he was engaged to transport freight services for New Line Transport. The applicant said he did not get paid for any work he performed for New Line Transport.

[40] The applicant was asked about an email he had sent to Toll on 10 January 2014, in which he claimed that management of Toll had decided not to allocate him any work and he did not know the reason why. The email reads as follows:

‘Hello, Mr. Richards.

My name is Miroslav Vujica (Michael), and I work for one of your linehaul contactors.

Mid-December your Linehaul Manager Mr. Steve Fing has been instructed by his superiors (presumably you) to stop allocating any work to me personally. I’ve been led to believe that TWU Delegate Mr. Steve Newton has made a number of calls to the Management of Toll-IPIC to bring me into disrepute and deprive me of any work that might have normally been allocated to me.

The situation leaves us all at a disadvantage - Mr. Fing is trying to get the operators to do the work, and here I am perfectly willing and able to do it, sitting not 800m away from the depot (I live in Liverpool, accross the river from the depot), but he is under instructions not to allocate any work to me due to Mr. Newton’s interference.

I want to stress here that I hold no grudge whatsoever against Toll-IPEC or against Mr. Fing. We have had a successful, trouble-free and at least for me - quite enjoyable arrangement for over 2 years now, and I would like to resume it as soon as possible. On the other hand, Mr. Newtown’s meddling with our contractual affairs in which he has no part whatsoever has caused me and continues to cause me serious financial losses and I have the intention to sue him personally for these losses.

Unfortunately, I need a little help from you to be able to do so successfully.

I would immensely appreciate if you or your colleagues would provide me with the copies of emails exchanged with Mr. Fing in the days between 16. and 23. of December 2013 regarding myself. Failing that, an email clearly stating that the instruction was indeed given to Mr. Fing not to allocate me any work until further notice, and that such instruction was issued on Mr. Newton’s insistence, using his position as a TWU Delegate, would suffice. I believe this would be ample evidence to the court that a tort of interfering with contractual relations exists, and that Mr. Newton is liable for my losses.

In addition, I still do not know the reason why I am not being allocated any work. I would appreciate if you would be able to tell me what the problem is, and of course - what can I do to correct it? It’s a sad situation that I am being ousted in such a manner, for unknown reason, without a chance to defend myself and without recourse.

I do understand that you and the Company have no obligation of any kind to me, but I do hope you will help me in this matter nevertheless. If the situation was reversed, I would do my best to help you, simply because that would be the decent thing to do.’

[41] The applicant accepted he mentioned the word ‘work’ seven times in this email. He agreed he understood the meaning of the word and that he was carrying out work for Toll, notwithstanding that he had told Ms Hunt that he had not done so. He denied he had lied to her. He agreed she had asked him three times and he denied it each time. He did not deny that he had been carrying out ‘line haul’ runs for Toll, but not when he was certified unfit for any duties.

[42] The applicant was shown an email from the security gate operator for Toll in which he said he had observed the applicant with a Nick Kusmanoski helping offload a trailer. Mr Kuzmanoski is a director of New Line Transport.

[43] The applicant was shown his email to Toll dated 10 January, offering himself for work. He agreed he had told Toll he was perfectly able to do work for Toll and he was able to do so, despite his medical restrictions. The applicant conceded that when Ms Hunt asked him three times if he had been seeking work from Toll, he had not answered her.

[44] The applicant agreed he was certified totally unfit to perform any work from 6 December 2013 to 13 January 2014. From 13 January, he was partially fit, carrying out office duties three days per week.

[45] It was observed that the applicant had not complied with a notice to produce his PAYG payment summaries for the year ending June 2013. When asked if he had been employed by another employer during this period, he replied: ‘To the best of my knowledge, no.’

[46] The applicant was shown his company’s tax return for July 2013. He said he had no idea where income of $17,965 or expenses of $15,747 came from. He speculated that the expenses would include fuel, registration, lease payments, meals etc. He was asked about his quarterly business activity statements (April 2013, July 2013, October 2013, February 2014) respectively indicating sales of $18,575, $16,018, $25,789 and $24,913. The applicant declined to comment on these figures, but said he not performed much work at all in December 2013.

[47] The applicant claimed he could not produce his business activity statement for the first quarter of 2014, because his accountant had it and he could not afford to pay his accountant. In any event, the applicant said that the business activity statement did not relate to him, but to the Company of which he is a director. The applicant maintained that he had not personally worked for Toll, but his Company was providing services to Toll.

[48] The applicant claimed another driver, named ‘Rex’, was engaged by New Line Transport to perform work for Toll. He said that he did not know Rex’s full name and had not paid him any money for his work.

[49] The applicant was asked about credit amounts into the account of Taurus Nationwide Transport in September, October, November and December 2013. He explained that the amounts were for work performed by Taurus invoiced to New Line Transport. The payments made in the week ending 15 December were in the periods he was certified unfit for employment. The applicant acknowledged that if Rex was performing the work, he would have had to provide proof of identity to Toll. He had not done so.

[50] The applicant claimed he had not paid Rex. Rather, after performing work for Toll in the morning, the applicant gave Rex the use of the truck for a few hours to do local work and he kept that money. He added that his email to Toll was to give the impression that he would be doing the work, whereas the work was done by Rex. The applicant claimed he had no choice but to give a false impression to Toll. He now conceded he had intended to mislead Toll.

Mr Tony Merhi

[51] Mr Merhi has been employed by TNT since 2008 as the HUB Manager at the Enfield depot. Mr Merhi recalled a conversation with the applicant in early 2013 in which the applicant had told him he was applying for his long service leave as he wanted to ‘get out of this place’ and trial a new job. Mr Merhi became aware the new job was linehaul work at Toll. Mr Merhi had no issue with him performing work for Toll, so long as it did not affect his ability to safely perform work for TNT in the afternoon.

[52] Mr Merhi was aware the applicant claimed to have injured his back unloading a trailer in early December 2013 and that he was certified unfit for work from 6 December 2013. When Mr Merhi was told the applicant was working for Toll while certified unfit for work at TNT, he phoned a Toll employee, Mr Lance Ensor, and asked if the applicant was working there. Mr Ensor said he had been there for a while driving a prime mover. When told the applicant was claiming workers’ compensation, Mr Ensor had no knowledge that he had been certified unfit. The applicant was still working, doing the South Coast run for Toll. Mr Ensor agreed to obtain evidence of the applicant working for Toll. Mr Merhi informed his manager, Mr Leak of what he had been told. Mr Merhi was later informed that TNT had obtained enough information to verify the applicant had been working at Toll.

[53] In cross examination, Mr Merhi confirmed he had no problem with any employee having a second job, as long as they could safely perform their duties with TNT. The applicant criticised Mr Merhi for not being specific as to dates, times or places he was alleged by Mr Ensor to be performing work for Toll. Mr Merhi agreed he simply asked if the applicant was still working there.

[54] The applicant believed Mr Ensor worked at Toll Express Eastern Creek (10 kilometres away) and he had seen him 2 ½ years ago. He claimed to have never performed a south coast run.

Mr David Leak

[55] Mr Leak was informed by Mr Merhi that the applicant was working at Toll while being unfit to work for TNT. Mr Leak made his own inquiry to Toll’s Manager at the Moorebank Depot, Mr Josh Knight. Mr Knight confirmed the applicant worked for Toll through New Line Transport and continued to do so. Mr Leak informed Mr Knight that the applicant was certified unfit. Mr Knight confirmed he had worked in the past week doing the Bateman’s Bay run. Mr Leak also checked with Mr Brett Arentz, Injury Management Advisor, who confirmed that the applicant was certified unfit for any work.

Ms Hunt

[56] Ms Hunt was informed by Mr Leak that it had come to his attention that the applicant was working for Toll at a time that he was certified unfit for any work for TNT. She advised Mr Leak to make further investigations. On 14 January 2014, Ms Hunt contacted Mr Tony Wilks at Toll and provided him with information on the applicant. The next day, Mr Wilks told her the applicant had been performing work at Toll’s Moorebank facility through New Line Transport. Mr Wilks also had an email from the applicant to Mr Richards, a Toll manager [See para [40]) which he read to her. The email address was the same address from which TNT had received email from the applicant.

[57] Ms Hunt denied telling the applicant she was in possession of the email. It had been read to her and confirmed the applicant was asking for more work, noting he was fit and able to do so. Ms Hunt inquired of Toll about obtaining a copy of the email. However, Mr Sloan, Senior Legal Counsel had raised some privacy concerns, but said he would be happy to provide it, if ordered to do so by the Commission.

The applicant’s belief as to why he had been dismissed

[58] The applicant raised two other issues which he believed were the real reasons he was dismissed. Firstly, around April 2013, he claimed that the management at Enfield was manipulating the employees’ clock-off time by winding them back and therefore not paying the correct overtime wages. The applicant complained to the NUW and the Operations Manager and sought repayment of the time he claimed the respondent had unlawfully stolen from him. He took a claim to the Local Court for an amount of $8,590.

[59] In cross examination, the applicant conceded he had been advised that his claim had no evidentiary basis and he was ordered to pay TNT’s costs, which, to date, he had not complied with. The Magistrate had informed him that until he paid TNT’s costs, he could not reagitate his claim. Ms Hunt understood the applicant was ordered to pay TNT $250 in costs in the Local court. He has not made any payment.

[60] Mr Leak was aware of the applicant’s claim of underpayment. However, after investigating the matter, he was satisfied that the applicant had been paid for all hours authorised to be worked. Ms Hunt investigated this matter and made inquiries of payroll and the Enfield depot management. Ms Hunt concluded that he had not been asked to work overtime when the applicant claimed he had been. Further, as he was not authorised to stay at work beyond his rostered shift, there was no underpayment issue.

[61] Secondly, the applicant believed that his former Union, the Transport Workers’ Union of Australia (TWU) was only active in protecting the interests of the respondent at the cost of those of its members. He resigned as a member of the TWU and joined the NUW and then nominated the NUW as his bargaining representative for the negotiation of a new enterprise agreement. He believed he was the only member of the NUW at the depot and by dismissing him, the respondent removed a competing Union from the workplace.

[62] Ms Hunt denied the applicant’s allegations of nepotism by TNT. He had not named any TWU delegate who had acted improperly, so she could not respond. Ms Hunt denied that the applicant’s Union membership had anything to do with his dismissal. TNT had no issue with the applicant nominating the NUW as his bargaining representative and his support person. Indeed, Mr Cochrane for the NUW attended the final disciplinary meeting. Ms Hunt further denied that the Company had paid the TWU for OHS and workplace training.

Disciplinary meetings

[63] On 14 January 2014, the applicant attended for work with a NUW representative and provided a medical certificate certifying him fit for work for five hours a day, three days per week, with lifting restrictions. Immediately following a meeting with the applicant and Mr Arentz, Mr Leak issued him with a letter setting out the two allegations (see above) and requiring him to attend a meeting on 16 January 2014.

[64] On 15 January 2014, Mr Leak was advised by Ms Hunt that the applicant had emailed the Toll Manager on 10 January 2014 requesting work and pointing out that he only lived 800m from the Toll Moorebank facility.

[65] On 16 January 2014, the applicant attended a disciplinary meeting, accompanied by his NUW representative, Mr Mark Cochrane, with Ms Hunt and Mr Leak. Mr Leak recalled Ms Hunt asked the applicant directly: ‘Have you worked at Toll or for Toll from 6 December 2013?’ He had replied, ‘No, I have not worked at Toll at that time and I have never worked at Toll.’ Mr Leak confirmed that Ms Hunt was leading the meeting and he was taking notes. Mr Leak claimed that when it was pointed out that working for another employer while being certified totally unfit for any work was a very serious issue, amounting to fraud, Mr Cochrane agreed it would warrant dismissal. When Ms Hunt asked the applicant again if he worked at Toll while declared unfit for work at TNT, the applicant answered, ‘No, I have never worked for Toll or at Toll.’ Ms Hunt produced the details of the email to Toll in which the applicant pleaded for work. He declined to answer whether he had sent an email like this to Mr Richards of Toll. When Ms Hunt matched up the email address, the applicant declined to provide any response.

[66] Ms Hunt asked again whether the applicant had sent the email to Toll, claiming he was willing and available for work in mid-December 2013. He declined to answer. Ms Hunt then said that if he refused to answer, the Company would have to decide who was telling the truth - Toll Management or him. He understood that to be the position. When told that Toll had information that proved he had been working for them from 6 December 2013, the applicant shrugged his shoulders.

[67] Ms Hunt asked the applicant about the letter sent to Ms Davies and how his ex-girlfriend would know so much detail. The applicant replied that she had heard him complain about TNT, saw he was frustrated and had sent the letter. The applicant refused to name his girlfriend. He asked if the Company would subpoena her if the matter went to Court. Ms Hunt explained that the issue was not one of the making of threats in the letter, but whether the applicant was dishonest in claiming his girlfriend had sent the letter. Ms Hunt emphasised that if the applicant’s employment continued, he would be required to wear a seatbelt.

[68] Mr Leak said that he and Ms Hunt left the room for about 10-15 minutes. He had expected the applicant might resign. However, the applicant continued to deny working for Toll or that he had sent the first letter to Ms Davies. After his further denials, Ms Hunt told him that they were not accepted and he was to be dismissed for serious misconduct.

[69] Mr Leak said that in light of the applicant’s dishonesty, the Company could have no trust in him. Should he be reinstated, he was likely to make false claims and it was likely he would ignore the Company’s policy on seatbelts. The applicant frequently challenged management and relied on alleged detailed conspiracies that TNT had a ‘hidden agenda’ against him.

[70] During the cross examination of Mr Leak, the applicant claimed he had never said he had not worked for Toll, because he had done so in 2002 and 2003. Mr Leak agreed the applicant was not given the email to Toll at the meeting. Mr Leak said that the allegations had been put to the applicant and he had been given an opportunity to respond before the decision was made to terminate his employment.

[71] Mr Leak said that the applicant was told the name of the manager from Toll who TNT had been speaking to. Mr Leak explained that his view as to the applicant making further unsubstantiated claims was based on the seven complaints which had been received about his behaviour and for which he had been issued a final warning and his continual arguing with the substance of the complaints. Mr Leak believed that in the face of overwhelming evidence, the applicant continued to make false claims of a conspiracy against him, rather than addressing the issues arising from his personal behaviour.

[72] Ms Hunt’s evidence as to the conversations with the applicant in the meeting on 16 January 2014 is largely in accord with Mr Leak’s recollections. I need not repeat her evidence, save to note that Ms Hunt stressed that the applicant denied working for Toll at any time; denied he had sent the first letter to Ms Davies and refused to answer questions as to whether he sent the email to Toll’s Mr Richards (See para [40]:

[73] In further oral evidence, Ms Hunt said that the company New Line Transport (Aust) Pty Ltd had a single director, a person named Nick. She was informed by this person that the applicant operated his own business in that he provided a leased prime mover to perform work for New Line Transport for Toll. He had worked for him some months earlier, but the person Nick had been told that the applicant could not do any further work for Toll.

[74] During cross examination, the applicant sought to engage with Ms Hunt in a debate over the meaning of ‘work’. The applicant believed ‘work’ involved a financial benefit.

SUBMISSIONS

For the applicant

[75] In his written submissions, the applicant said that his dismissal was ‘harsh, unjust and unreasonable’ as none of the allegations made by the respondent against him could be sustained. The real reasons the respondent had dismissed him were not those set out in the letter of termination. He variously referred to his attempt to recover unpaid wages, an attempt by the respondent to avoid their obligations to him as an injured worker and a corrupt arrangement between the Transport Workers’ Union and the respondent as the real reasons for his termination. He claimed he was the only member of the National Union of Workers onsite.

[76] The applicant reiterated his issues with forklift seatbelts and claimed that he had acted in ‘the spirit of the safety laws and managing the safety risks in a manner far superior to the Respondent’s mere enforcement of the letter of those laws.’ The respondent had not addressed the issues he had raised in accordance with its legal obligations and internal policies.

[77] The applicant acknowledged the allegations of fraud made against him were very serious. However, he said it was ridiculous that he had never been shown the email to Toll which the respondent alleged he had sent from his email account. In any event, it was unclear as to how this constituted fraud or how he could obtain a benefit by such conduct. He had not been given a chance to properly respond and he believed that the respondent had made the decision to dismiss him prior to the meeting of 16 January 2014.

[78] In oral submissions, the applicant stressed his view that the reasons put for his dismissal in the letter of termination were not the real reasons for his dismissal. He claimed that he had not been aware that he was required to provide a response to the four points set out in the letter directing him to a disciplinary meeting. He thought it was inconsistent that the letter of termination set out only two issues. While he had been given a notional opportunity to respond, the respondent’s representatives had not attended the meeting with an open mind. He had had seven complaints made against him and each time he had been ‘regarded as being guilty.’ He had sent five letters in the past and received five unacceptable replies. He stopped providing responses because no-one cared. Accordingly, there was no point in his providing any response, as it would simply have been disregarded.

[79] The applicant drew attention to the evidence of Mr Scanlan that he had not issued a warning letter since September, meaning that this was the last one. This was significant. Only file notes had been made in relation to the dispute around wearing seat belts.

[80] The applicant said that when he was asked about working for Toll, he understood he was being asked whether he was employed by Toll. He denied saying that he had never worked for Toll. He had worked for Toll for three months prior to starting work at TNT, through an employment agency and his company (of which he was a director) had provided services to Toll. What his company did was not relevant, as he was not an employee of the Company and the Company was paid for its services rather than himself.

For the respondent

[81] In written submissions, TNT said that the applicant’s dismissal on 16 January 2014 was not an unfair dismissal, within the meaning of s 385 of the Act and that the application should be dismissed. The applicant had been dismissed for serious misconduct, including working for Newline Transport Pty Ltd while certified unfit and dishonesty in relation to the sending of a letter to the respondent, requesting a favour in exchange for not reporting safety breaches and then later claiming that this letter was written by his girlfriend. A further matter to which the Commission should have regard to was the applicant’s final warning in relation to his refusal to wear a seatbelt, together with a written warning on 11 February 2010.

[82] TNT set out its self-insured workers’ compensation arrangements and stated that TNT’s concern for the safety of its employees was paramount. TNT also set out the history of the applicant’s employment, the circumstances in which warnings were issued to the applicant, the circumstances in which the applicant’s ComCare application was made and the conduct of the meeting leading to the applicant’s termination on 16 January 2014.

[83] TNT then turned to the criteria for determining whether a dismissal had been ‘harsh, unjust or unreasonable’ as set out under s 387 of the Act. The applicant’s conduct, with its flow-on effect on the safety and welfare of other employees, was a valid reason for dismissal. (s 387(a)). The Commission should be satisfied on the basis of the evidence before it that the impugned conduct occurred and what it involved; See: Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’) and King v Freshmore (Vic) Pty Ltd 283/00 M Print S4213 [2000] AIRC 1019 (‘King v Freshmore’).

[84] The particulars of the applicant’s serious misconduct were consistent with the definition in r 1.07 of the Fair Work Regulations 2009 (the ‘Regulations’) and were as follows:

‘(a) the Applicant claimed that he was totally unfit to perform any employment during the period 6 December 2013 to 13 January 2014, however during this period the Applicant was performing paid work for Newline, which in turn provided transport services to Toll. In view of this the Applicant’s actions amounted to dishonest conduct of the highest magnitude; and

(b) the Applicant claimed that the letter sent to TNT in early December regarding the seatbelt was sent by his girlfriend, however TNT found on the balance of probabilities that the letter was in fact sent by the Applicant. TNT formed this view based on the detailed content within the letter, including names and details of former employees, practices, alleged safety breaches and the annexures provided. Furthermore, the Applicant refused t name the sender of the letter in order to allow TNT to seek further information from the alleged sender.’

[85] TNT stressed its view that the acts of claiming to be unfit for work due to supposed injury, seeking workers compensation as a result of that injury and then working elsewhere while certified unfit for work, constituted fraudulent conduct or attempted fraud. TNT was satisfied from the communication it had with officers of Toll that these allegations were true. The act of supplying a doctor’s certificate when that person is actually able to work is misconduct that would justify termination. Falsely making a workers’ compensation claim constitutes misconduct by way of dishonesty, also justifying dismissal. There was no question that there was a valid reason for the termination of the applicant’s employment.

[86] TNT noted that the applicant had refused to answer questions relating to whether he had sent an email to Toll seeking work, but did not deny it. The email itself, the applicant’s proximity to Toll’s Moorebank facility and the source of the information provided by TNT formed a reasonable basis to make a finding that the applicant had sought work from Toll. This was incompatible with the fulfilment of his duties as an employee; See: Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66.

[87] The failure to obey a lawful and reasonable direction was also a ground for dismissal; See: Adami v Maison de Luxe Ltd (1924) 35 CLR 143; Miller v Australian Industrial Relations Commission (2001) 108 FCR 192 (‘Miller v AIRC’). TNT submitted that the failure to comply with a lawful and reasonable policy breaches a fundamental term of a contract of employment and could, where wilful and substantial, constitute a valid reason for dismissal; See: B, C and D v Australian Postal Corporation [2013] FWCFB 6191; Woolworths (t/as Safeway) v Cameron Brown - PR963023 [2005] AIRC 830. Further, the applicant had an obligation to answer all questions put to him by TNT truthfully, relevant to his employment.

[88] TNT said that the applicant’s length of service was not sufficient to grant relief in the context of the seriousness of his behaviour. This was only one of a number of matters which the Commission should take into account when determining whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’; See: Sexton v Pacific National (ACT) Pty Ltd - PR931440 [2003] AIRC 506. The applicant’s conduct in writing the letter and then denying that he had done so, was ‘unacceptable, intolerable and arguably criminal’ and was inconsistent with the relationship of trust and confidence inherent in the employment relationship.

[89] TNT noted that the applicant had received notification of the reasons for his dismissal in writing and in person (s 387(b)) and was given an opportunity to respond to the allegations made against him (s 387(c)). The applicant was allowed a support person at the meeting in which his employment was terminated (s 387(d)).

[90] TNT submitted that the burden of proof to establish whether the dismissal was ‘harsh, unjust or unreasonable’ lay with the applicant, but where the dismissal was based on serious misconduct, the Commission must be satisfied that it occurred and was serious enough to justify dismissal; See: Miller v AIRC 192. This is based on the balance of probabilities; See: Hassan and Abejaron v Nestle Dairy Products (Print S6338, 24 May 2000).

[91] TNT referred to the applicant’s extensive history of writing letters of complaint to TNT, including to its headquarters in the Netherlands. This history partly contributed to the basis for finding that the applicant had written the letter making threats and insisting that his warning be removed. It was also noted that the applicant had not filed any evidence on the part of the girlfriend who he says wrote the letter in early December 2013. This should be the subject of an adverse inference based on the principles of Jones v Dunkel (1959) 101 CLR 298 (‘Jones v Dunkel’)

[92] In the alternative, TNT said that if the Commission found that the applicant’s actions did not constitute serious misconduct, it would be open to find that his actions constituted misconduct. This would mean that it would have been open to TNT to terminate the employment of the respondent on the payment of four weeks’ notice. In any event, reinstatement would not be an appropriate remedy as the relationship of trust and confidence had entirely broken down. TNT could not trust the applicant to work in accordance with its procedures. TNT noted the example of the applicant refusing to wear a seatbelt while working on the forklift.

[93] In response to the applicant’s material, TNT strongly denied that it dismissed him for any collateral purpose, other than for his serious misconduct. It noted that a claim that the applicant had made in the Liverpool Local Court had been stood over by the relevant Magistrate until he had paid TNT’s legal costs. This was based on the applicant not being in a position to provide evidence supporting the elements of his claim.

[94] In oral submissions, Mr Moulton argued that the central issues for determination in this case were narrow. Firstly, whether the applicant performed work at, or for Toll directly or indirectly, during the period he was certified unfit for work and whether his responses to TNT’s investigation in relation to this issue were dishonest. Cross examination of the applicant had demonstrated that he had sent the email to Toll setting out that he was willing and able to work during the period in which he was certified unfit to work. The company tax return for Taurus Nationwide Transport reported sales throughout all quarters of 2013. Bank statements showed that payments were received in December 2013 and January 2014. The applicant’s response to this was to debate the meaning of the word ‘work’ (though he had denied performing ‘work’ for Toll in the meeting with Ms Hunt and Mr Leak) and to allude to an arrangement with ‘Rex’. Even if this was true, it demonstrated dishonesty on the part of the applicant. Nevertheless, the respondent submitted that the evidence led to a conclusion that his explanations were untrue.

[95] Secondly, whether the applicant wrote the letter to Ms Davies or whether it was sent by his girlfriend. Mr Moulton noted that this letter, consistent with other correspondence from the applicant, opened with ‘Hello’ and demonstrated a high level of familiarity with his workplace, work procedures and colleagues. The correspondence also demonstrated awareness of the forklifts being changed and Roads and Maritime Services infringement notices. This correspondence also fitted a pattern of the applicant making complaints. He had not provided his girlfriend’s name until the day of the hearing and had not sought to have her give evidence to the Commission. Jones v Dunkel adverse inferences should be drawn in relation to the applicant’s ‘girlfriend’ and to ‘Rex’.

[96] Mr Moulton noted that Mr Leak had given evidence that he could not trust the applicant to be honest in his dealings with TNT. Reinstatement would be inappropriate where the applicant has illustrated that he is willing to lie or distort facts in order to obtain a benefit.

[97] Mr Moulton foreshadowed an application for costs and claimed that the application had been brought either vexatiously, without reasonable cause or without reasonable prospects of success.

[98] In reply, the applicant stressed that payments from Toll had not been received by him, but his Company. On Mr Moulton’s logic, if the General Manager of TNT went on workers’ compensation, he or she would have engaged in serious misconduct if TNT continued to turn a profit while the General Manager was unfit for duty.

[99] The applicant said that if he had been lying about ‘Rex’, he would have made up a better story. Mr Moulton had painted the arrangement between the applicant and ‘Rex’ as implausible, but this was because Mr Moulton had no experience in the industry. The reason ‘Rex’ could not attend was because he had moved to Wagga Wagga to look after his ill mother. ‘Rex’ himself had health problems too. The only reason that the applicant had not referred to ‘Rex’ before today is because nobody asked him. Nor could he see what difference his providing his girlfriend’s name would make to the investigation. He had not thought to try to make arrangements to have either of them appear remotely.

CONSIDERATION

[100] At the outset of this decision, I indicated that the matter to be determined by the Commission in this case is whether the applicant’s dismissal was ‘harsh, unreasonable or unjust’ within the meaning of s 387 of the Act (cited para [6] above). The well known passage from Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 (‘Byrne’) is relevant to the consideration of whether a dismissal is ‘harsh, unjust or unreasonable.’ Their Honours McHugh and Gummow JJ said at para [128]:

‘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’.

Serious misconduct and the Act’s Regulations

[101] There is no doubt that this is a case involving allegations of serious misconduct. In this respect, the Act makes reference to the meaning of serious misconduct where at s 12, it says:

‘12 The Dictionary

In this Act:

...

serious misconduct has the meaning prescribed by the regulations.’

[102] The regulations referred to are the Fair Work Regulations 2009, (the ‘Regulations’). R 1.07(1)-(3) is expressed as follows:

‘1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.’

[103] It may be assumed that TNT relies on the words in rr 1.07(2)(a), (b) and (3)(a)(ii) above. However, as I have stated, a finding that an employee had been deliberately dishonest in his/her dealings with the employer over a serious matter, or that an employee had deliberately and wilfully set out to defraud the employer by working for another employer while claiming to be unfit for any work and obtaining workers’ compensation benefits, are matters which would invariably constitute valid reasons for an employee’s dismissal. It would seem that even the NUW official representing the applicant at the time, accepted this proposition.

[104] Taken together, and coupled with a less than impressive employment history, it seems to me that there is little scope for a finding that mitigating factors would outweigh the unfairness of the dismissal. In Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 (‘Wililo’), a Full Bench of Fair Work Australia (FWA, as it then was) said at para 24:

‘[24] We do not consider that the decision discloses a clear line of reasoning leading to the decision reached. The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. We do not believe that any of the circumstances involved in this matter amount to such factors.’

Meaning of ‘valid reason’

[105] The applicant was summarily dismissed for misconduct. Not only does the applicant say his dismissal was ‘harsh, unreasonable and unjust’, but he emphatically denies having committed the misconduct alleged against him. With this in view, the onus is on TNT to prove to the Commission’s satisfaction, on the balance of probabilities, that the misconduct occurred; See: Culpeper v Intercontinental Ship Management Pty Ltd - PR944547 [2004] AIRC 261 and Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201.

[106] While decided in an earlier statutory context, the comments of Moore J in Edwards v Giudice (1999) 94 FCR 561 at paras [4] and [7] are apposite:

‘4 In the present case the Full Bench concluded that Commissioner Tolley had failed to determine whether Ms Edwards was guilty of misconduct in the way alleged by Telstra Corporation Ltd and that the Commissioner should have done so as part of ascertaining whether her termination had been harsh, unjust or unreasonable. The approach of the Full Bench was, in my opinion, unexceptionable. When the reason for a termination is based on the misconduct of the employee, the Commission must, if it is an issue in proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from  s 170CG(3)(a). That is, the Commission must determine whether the alleged conduct took place and what it involved. Section 170CG(3) provides:

"In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and

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

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

(d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and

(e) any other matters that the Commission considers relevant."

...

7 The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also by relying on the other grounds in paras (b) to (e). However an employee may not concede or admit, for the purposes of the arbitration, that the conduct occurred or may not be prepared to accept that the Commission could assume the conduct occurred. In either situation the employee would be putting in issue whether the conduct occurred. In my opinion the Commission must, in these circumstances, determine whether the conduct occurred as a step in resolving whether there was a valid reason. I do not see how the Commission can move straight to a consideration of whether termination was justified by assuming the conduct did occur. First the Commission would have failed to resolve an issue raised by and relied on by the employee, namely whether the conduct occurred at all. Second the Commission would have failed to make findings by reference to which a Full Bench might have to determine an appeal where the Commission had concluded the termination was harsh unjust or unreasonable on assumed facts and not facts found [my emphasis].’

[107] In King v Freshmore, a Full Bench of the Australian Industrial Relations Commission (AIRC) said at paras [24], [26], [28] and [29]:

‘[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.

...

[26] As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved.

...

[28] It is apparent from the above extract that his Honour answered the question of whether the alleged misconduct took place on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. This is not the correct approach. The Commission's obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved.

[29] In our view the Senior Deputy President failed to determine for himself whether Mr King was guilty of misconduct in the way alleged by Freshmore and he should have done so as part of determining whether the termination had been harsh, unjust or unreasonable. When the reason for a termination is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The absence of such a finding leads us to conclude that the member below failed to properly determine whether there was a valid reason for the termination of Mr King's employment [my emphasis].’

[108] The meaning of ‘valid reason’ in s 387(a) is drawn from the judgment of Northrop Jin Selvachandran. This meaning has been applied by members of the Commission and its predecessors for many years:

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

[109] Even accepting that a finding of serious misconduct was open to TNT, it must not be confused with the statutory language. This still requires the Commission to find that there was, or was not, a valid reason for dismissal (s 387(a)). In Royal Melbourne Institute of Technology v Asher[2010] FWAFB 1200, a Full Bench of Fair Work Australia (FWA) held at para [16]:

‘[16] In the circumstances of this matter the University purported to terminate Dr Asher’s employment for serious misconduct within the meaning of that term in the University’s enterprise agreement. If it successfully established that Dr Asher had engaged in serious misconduct it would necessarily follow that there was a valid reason for the dismissal. However, the converse is not true. As established by Annetta, the question that needed to be considered was whether there was a “valid reason” in the Selvachandran sense – whether the reason was sound, defensible or well founded. Whether it also amounted to serious misconduct may well be a factor relating to the overall characterisation of the termination but it was not an essential requirement in the determination of whether a valid reason exists.’

Procedural Fairness

[110] Subsections (b) - (e) of s 387 of the Act might be broadly characterised as issues relevant as to whether a dismissed employee was afforded procedural fairness. The applicant claimed that he was denied procedural fairness in three main respects:

(a) he was not shown his alleged email to Toll;

(b) he was not provided with an adequate opportunity to respond to the allegations made against him; and

(c) TNT had made its decision to dismiss him prior to the meeting in which he was asked to respond to the allegations.

It is trite to observe that, even if there was a valid reason for an employee’s dismissal, the dismissal may still be held to be unfair, if the employee was not afforded procedural fairness. This has been a long held industrial principle adopted and applied by this Commission, its predecessors, other Courts, industrial tribunals and the High Court. In the High Court case of Byrne, supra above, their Honours McHugh and Gummow JJ said at para [130]:

‘130. That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable (168). But the question under cl 11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking to the first issue before there is seen to be any need to enter upon the second.’

[111] Three further authorities on the subject of procedural fairness in an unfair dismissal case should be of interest to the parties in this matter. In Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137 (‘Crozier v Palazzo’), a Full Bench of the AIRC said at para [73]:

‘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.’

[112] In Wadey v Y.M.C.A. Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations concerning the employee’s conduct. His Honour said:

‘In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.’

[113] Nevertheless, procedural fairness steps should be applied in a commonsense and practical way. In Gibson v BosmacPty Ltd (1995) 60 IR 1 (‘Gibson’), Wilcox CJ said at 7:

‘Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.’

[114] In addition, it goes without saying that any issue or issues of procedural unfairness may not be of such significance as to outweigh the substantive reason/s for an employee’s dismissal, particularly in cases of serious misconduct where the proven misconduct is of such gravity as to outweigh any other considerations such as age, length of service, contrition and issues of procedural unfairness generally. This was no doubt the approach adopted by TNT; although it strongly rejected any suggestion that the applicant was denied procedural fairness.

[115] Turning back then to the notion of serious misconduct. It is appropriate to consider whether the applicant’s conduct was such as to constitute a repudiation of his contract of employment or, in other words, was there a breach of the express, or implied terms of his contract of employment. Put another way, the Commission must determine whether the evidence before it, discloses a deliberate and wilful intent by the applicant to commit an act which strikes at the heart of the employment relationship.

[116] This principle has been elucidated in a number of well known authorities. In North v Television Corporation Ltd (1976) 11 ALR 599, Franki J said at p 616:

‘It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions.’

[117] Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 (referred to in the quote above) makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be ‘wilful’:

‘... I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions (P288).’

[118] In Concut Pty Ltd v Worrell (2000) 103 IR 160, his Honour, Kirby J, dealt with the ordinary relationship of the employer and employee at common law and said at para [51]:

‘The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law:

“[c]conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ...[T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.”

In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the “confidence” essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer’s counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company’s service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee’s summary dismissal.

It is, however, only the exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to ‘isolated’ acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal.’

[119] In Farquharson v Qantas Airways Limited - PR971685 [2006] AIRC 488, the Full Bench of the AIRC referred, with approval, to the following analysis of Ross VP (as he then was) in Rose v Telstra Corporation Limited - 1444/98 N Print Q9292 [1998] AIRC 1592:

‘[19] The issue, then, is whether the “out of hours” conduct involves a breach of an express or implied term of the contract of employment. Ross VP then considered the relevant implied terms:

An employee's implied duty of fidelity and good faith is particularly relevant here. One of the most concise and authoritative statements of what is generally encompassed by the duty of fidelity and good faith is to be found in Blyth Chemicals v Bushnells. In that case their Honours Dixon and McTiernan JJ said:

“Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty. Or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to future conduct arises.”

In the same case their Honours Starke and Evatt JJ note:

“The mere apprehension that an employee will act in a manner incompatible with the due and faithful performance of his duty affords no ground for dismissing him; he must be guilty of some conduct in itself incompatible with his duty and the confidential relation between himself and his employer.”

...


The obligations imposed by the common law duty of fidelity and good faith operate to prohibit acts outside of the employment which are inconsistent with the continuation of the employment relationship. But as Spender AJ observed in Cementaid (NSW) Pty Ltd v Chambers, ‘an actual repugnance between the employee's acts and his relationship with his employer must be found’.

More recently the implied term of fidelity and good faith has been expressed as an obligation to serve the employer loyally and not to act contrary to the employer's interest. In England this obligation appears to have been subsumed by the more general obligation of mutual trust and confidence. The implied term of mutual trust and confidence imposes reciprocal duties on the employee and employer that they shall not ‘without reasonable and proper cause, conduct themselves in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee’.

If conduct objectively considered is likely to cause serious damage to the relationship between employer and employee then a breach of the implied obligation may arise.

There is some support for the proposition that the existence of an implied term of trust and confidence in contracts of employment has been accepted in Australia.

The words `trust and confidence' in this context are used in a contractual sense rather than as an ingredient of a personal relationship. As McCarry notes:

“... the words `trust and confidence', just like the employee's reciprocal duties of ‘fidelity and good faith’, do not now refer to the ingredients of a personal relationship, even if they once did. The words now represent, in shorthand form, a bundle of legal rights which have more to do with modes of behaviour which allow work to proceed in a commercially and legally correct manner than with ingredients in an interpersonal relationship.”

The above statement is consistent with the shift in the nature of the employment relationship, from status to contract, referred to earlier.

[20] His Honour then formulated a summary of principle which has now been applied on a number of occasions:

“It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited:

• the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or

• the conduct damages the employer's interests; or

• the conduct is incompatible with the employee’s duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.”’

[120] Before returning to the various indicia in s 387 of the Act, I wish to make some observations about the evidence disclosed in this case. In my view, the applicant is a practised, consummate, but utterly implausible manipulator of words and events for his own ends. He relies on this in order to cast himself as the victim, the honest whistleblower and to deflect attention from his obvious shortcomings. In this case, he twisted and manipulated circumstances to either cover up or explain away his own lies and dishonesty. There were many examples of the applicant’s unbelievable, almost laughable propositions. A few will suffice:

1. Given the details in the letter of the forklift’s functions, the exact names of the respondent’s managers, the use of the same wording, the making of threats and seeking help to have the applicant’s supervisor ‘back off’, it was implausible that the applicant’s ex-girlfriend wrote the letter to Ms Davies. This letter was entirely consistent with the same style and approach the applicant had adopted to making numerous unsubstantiated complaints about management decisions in recent years, up to and including direct complaints to the respondent’s Head Office in Amsterdam.

2. The applicant failed to produce tax records for the relevant periods he was certified unfit for duty. He explained that he could not afford to pay the accountant to retrieve them. It was more likely the case the applicant knew these records would plainly implicate him in a fraud against the respondent and the workers’ compensation system and conclusively demonstrate he had lied to the respondent not just once, but numerous times.

3. The applicant raised for the first time in the proceedings, an explanation for what was becoming a very uncomfortable set of realities for him to answer. He claimed that a person by the name of ‘Rex’ actually used his truck to work for Toll. As the story went, the applicant invoiced Toll, who paid monies into his company’s account. The applicant kept these monies and paid nothing to ‘Rex’. In return, he gave ‘Rex’ the free use of his truck to work local jobs which ‘Rex’ was paid for. Putting aside that no one, including Toll, who presumably requires proper identification of its drivers, knew of the mysterious ‘Rex’, the best the applicant could do was that he did not know his surname, did not know where he was, but thought he may be visiting his sick mother in Wagga Wagga. He had never mentioned this person at any time to the respondent’s investigators. I am amazed he kept a straight face by piling lie up on lie in the witness box and expecting me to believe him. If this was the applicant’s ‘smoking gun’, it blew up in his face.

4. The applicant had the perfect opportunity to refute the respondent’s allegations by producing the persons he claimed could verify his fantastic stories - his ex-girlfriend (Ms Katherine Vladimorna, who he named for the first time in cross examination) or ‘Rex’. In my view, they were not called to give evidence because the applicant knew full well they would not be able to verify his fanciful explanations. Indeed, I very much doubt that a person ‘Rex’ even existed. At the very least, a Jones v Dunkel adverse inference is entirely open.

5. Even allowing for the applicant’s self-representation, his cross examination of the respondent’s witnesses was hopeless, misdirected and irrelevant. He focused on issues that had no bearing on what he was required to test. For example, he queried whether Mr Scanlan was a liar, because he stated his address as the respondent’s address and not his home address. He queried Mr Scanlan’s independence, because he was authorised by the respondent to make a statement in the matter.

6. The applicant failed to mention that his unsubstantiated claim of underpayment of overtime had been stayed by the Local Court until he undertook to pay the respondent’s costs (which he has failed to do).

7. The applicant complained that the respondent had no right to investigate or even inquire into his ‘private’ life. Presumably, his ‘private life’ meant what he was doing working for another company. However, if the applicant truly believes that it is a ‘no go’ zone, when, after an employer learns its employee is defrauding it and the workers’ compensation system, conducts an investigation and dismisses that employee, then I am afraid he is very sadly mistaken. His wilful misconduct and his denials in the face of overwhelming evidence to the contrary, strikes at the very heart of the employment relationship.

[121] I find the applicant’s evidence to be riddled with nonsensical and irrelevant propositions, utterly ridiculous and implausible explanations and, regrettably, downright lies. There was not a skerrick of evidence of any conspiracy by TNT against him. This is a figment of a very colourful imagination. I wonder whether he actually believes his own nonsense or whether it is some sort of game for him to respond to allegations against him by making unsubstantiated allegations of his own. Either way, it is little wonder that the respondent acted in the manner it did to dismiss him.

[122] Turning then to the specific criteria in s 387 of the Act, I find the applicant to be guilty of serious and wilful misconduct in that he:

(a) lied to the respondent as to the authorship of the letter to Ms Davies;

(b) defrauded the respondent by working for another employer and claiming to be certified unfit for work;

(c) lied to the respondent that he had not worked for Toll at any time, but particularly when certified unfit for duty.

The applicant’s serious and wilful misconduct was a valid reason for his dismissal.

[123] In addition, I find that the applicant’s failure to cooperate with the respondent’s investigation, and his deliberate dishonesty during the investigation, is an added basis for a finding of a valid reason for dismissal.

[124] In my opinion, the applicant’s failure to co-operate with the investigation is no unimportant or trivial matter. It is one of the matters I have taken into account, pursuant to subsection (g) of s 387 of the Act. It must be emphasised that employees have a duty to cooperate with an employer’s investigation of their conduct. It is paramount to getting to the bottom of the allegations and may go to mitigating against an otherwise more serious outcome, if the misconduct is found to have occurred. Where an employee deliberately sets out to lie during an investigation, it is even more serious than a lack of cooperation or failure to disclose relevant information. It could well be viewed as misconduct of itself.

[125] In this respect, I refer to a decision of the Full Bench of the AIRC in Telstra Corporation Ltd v Streeter [2008] AIRCFB 15. The majority said at paras [14]-[15] and [20]:

‘[14] Ms Streeter was unco-operative and dishonest with Telstra during the investigation. In response to questions asked of her, she denied activities she knew had occurred or stated that she had “no comment”. She also claimed a lack of memory with respect to certain activities. As Senior Deputy President Hamberger points out, Ms Streeter concedes she lied to Telstra during the investigation.

[15] Ms Streeter’s dishonesty would have been of little relevance to Telstra if her activities had had no effect at her work and were not likely to have any effect at her work. However, it appeared her activities had caused difficulties at her work and were likely to cause difficulties at her work in the future. In the circumstances, we think Telstra’s questions of Ms Streeter during its investigation were reasonable. Ms Streeter needed to be honest with Telstra about her activities, notwithstanding their inherently personal nature, so that Telstra could determine and take appropriate action to deal with the difficulties.

...

[20] We think the restricted view his Honour adopted of Ms Streeter’s obligation for honesty in her employment led him into error of the type set out in House v King. Stock or cash are only a part of the matters Ms Streeter needed to be honest about to maintain the necessary relationship of trust and confidence between Telstra and herself. Whether the matters were personal or not, Ms Streeter had an obligation to answer Telstra’s reasonable inquiries honestly. In the circumstances, we do not see that the necessary relationship of trust and confidence can be compartmentalised as his Honour has done.’

[126] William C, in Thompson v John Holland Group Pty Ltd [2012] FWA 10363, after referring to the above Full Bench decision, said at para [151]:

‘[151] I find then that the applicant’s refusal to answer direct questions as to whether he had recorded other private workplace conversations was a failure to be open and honest and cooperative when the respondent was asking reasonable, pertinent questions and consequently this was also a valid reason for his dismissal.’

[127] Given my adverse findings on the more serious allegations against the applicant, it is unnecessary for me to make findings as to the applicant’s continued refusal to wear a seatbelt while operating a forklift. Nevertheless, I note that he has given no indication he would comply with this direction, if he was to be reinstated. In my view, this would be a significant factor militating against the appropriateness of the applicant’s reinstatement (See: s 390 of the Act). That said, the applicant’s refusal to comply with, what I believe is a lawful and reasonable direction of the employer, is indicative of his general resistance to management direction and his fanciful belief that he is the only one who is right and anyone who challenges him is wrong or part of a wider conspiracy to undermine him.

Whether the person was notified of the reason for dismissal

[128] The applicant was advised on 14 January 2014 that he was required to attend a meeting on 16 January 2014 to discuss four issues:

1. The letter sent to Susan Davies, Human Resources Director, which he claimed was not sent by him;

2. The letter to Ms Davies dated 22 December 2013, whereby the applicant refused to wear a forklift seatbelt.

3. The applicant’ statement of claim in relation to alleged unpaid overtime; and

4. Work that the applicant had performed for New Line and Toll during his period of alleged incapacity to work for TNT.

The applicant knew the basis of the respondent’s allegations in respect to the letter to Ms Davies as early as 16 December 2013, because he denied sending the letter at that time.

[129] The applicant had been raising the issue of wearing seatbelts for some time (since early October 2013) and had received a written warning for failing to do so on 14 November 2013. It was the applicant who made the complaint about underpayment of overtime as far back as November 2013. The applicant was well aware that he had been performing work for Toll while certified unfit for any work. Given these circumstances, it could not possibly be said that the applicant was unaware of the reasons for his dismissal.

Whether the person was given an opportunity to respond to reasons in relation to his conduct or capacity

[130] The applicant complained that he was not given a reasonable opportunity to respond to the allegations against him. This submission is fanciful nonsense. When seen from the prism of his denials as to working for Toll and his refusal to answer questions about the contents of an email he sent to Toll, his complaint in this respect is a very hollow one. The applicant complained that he was never shown a copy of the email. There was a very good reason for that - Ms Hunt did not have a copy (see para [57]).

[131] In any event, this complaint was a ‘red herring’. The applicant was asked very specific questions about the about the content of the email. Rather than denying the allegations, he chose not to answer. As said earlier, if the so-called ‘Rex’ ever existed, here was the perfect opportunity to put him up and claim it was all a complete misunderstanding. By refusing to answer questions, he was damned from his own mouth. What else was the respondent to do, but base its decision on the various pieces of evidence that had been obtained from Toll, which utterly destroyed the applicant’s abject denials and explained his refusal to answer reasonable and uncomplicated questions.

Whether there was an unreasonable refusal to allow the person to have a support person at any discussions relating to dismissal

[132] The applicant had a NUW official with him in the disciplinary meeting. It strikes me as rather curious that the NUW has chosen to have no input into this case; although I am tempted, I will not speculate as to why.

Whether the person had been warned about unsatisfactory performance prior to dismissal

[133] As this is a case involving serious misconduct, the question of warnings as to unsatisfactory performance does not strictly apply. I would add, however, that had the reasons for dismissal included the applicant’s refusal to comply with numerous warnings to wear a seat belt, it is highly improbable (even in the absence of the serious misconduct allegations) that the applicant would have been able to sustain an argument that he had not been warned about his unsatisfactory performance.

The degree to which the size of the employer’s enterprise was likely to affect the person’s dismissal

[134] The respondent is a large, well known employer in the transport industry with 3,500 employees. I am well satisfied that it conducted its disciplinary processes in a fair and scrupulous manner as might be expected of such a prominent and long-standing employer in the transport industry.

The degree to which the absence of dedicated human resource management specialists was likely to impact on the procedures followed in effecting the dismissal

[135] The respondent has dedicated and experienced human resources and industrial relations specialists who conducted themselves diligently and appropriately both during the applicant’s employment and in the lead up to his dismissal. No criticism could be levelled at any of them in this respect.

Other relevant matters

[136] The applicant had almost ten years’ service with the respondent. I have no information as to his performance or conduct for the majority of that time up until about 2010 or 2011. It is about this time that the applicant’s belligerent, non-cooperative and delusional behaviour started to emerge. I have no evidence what may have brought it to the fore. Nevertheless, in my view, even if the applicant had 40 years of unblemished service, the seriousness and wilfulness of his misconduct could not sustain a finding that the applicant’s dismissal was ‘harsh, unreasonable or unjust’.

[137] There was not a hint of contrition, not a skerrick of an acknowledgement that the evidence against him was overwhelming - just a farrago of lies and ridiculously implausible explanations, even lies created during the proceeding itself (‘Rex’). Notwithstanding that I have seen cases where I have found, on the balance of probabilities that misconduct had occurred (including where there were rigid denials), this case has even astounded me for the applicant’s barefaced fantasy and delusion.

[138] Accordingly, I find that the applicant’s serious and wilful misconduct was a valid reason for his dismissal and there are no mitigating factors which would warrant a finding that his dismissal was otherwise ‘harsh, unreasonable or unjust.’ The application for relief from unfair dismissal is dismissed. Orders to that effect will accompany the publication of this decision. Any application for costs (as foreshadowed by Mr Moulton) should be made in accordance with the relevant provisions of the Act.

DEPUTY PRESIDENT

Appearances:

Applicant in person.

Mr A Moulton for TNT Australia Pty Ltd.

Hearing details:

2014.

Sydney:

12 June

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