Mr Anthony Clarke v Toll Transport Pty Ltd T/A Toll Transport
[2019] FWC 606
•4 APRIL 2019
| [2019] FWC 606 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Anthony Clarke
v
Toll Transport Pty Ltd T/A Toll Transport
(U2018/7318)
COMMISSIONER HUNT | BRISBANE, 4 APRIL 2019 |
Application for an unfair dismissal remedy – alleged breaches of workplace policy – sexual harassment of co-worker through inappropriate text messages – allegations partly substantiated following investigation – valid reasons for dismissal not displaced by other invalid reason – dismissal not harsh, unjust or unreasonable – application dismissed.
[1] Mr Anthony Clarke has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that he was dismissed from his employment with Toll Transport Pty Ltd T/A Toll Transport (Toll) and that his dismissal was harsh, unjust or unreasonable.
[2] There are no jurisdictional issues for me to determine. I am satisfied that Mr Clarke is a person protected from unfair dismissal pursuant to s.382 of the Act. Mr Clarke’s application was made within the 21-day statutory time limit. 1
[3] The only matter that I must determine is whether Mr Clarke’s dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act.
Hearing
[4] Mr Clarke’s substantive application was listed for hearing in Brisbane, Queensland on 22 October 2018. Mr Clarke appeared on his own behalf. Ms Fabiana James, Solicitor and Senior Manager, New South Wales appeared for Toll.
[5] The following people appeared and gave evidence at the hearing:
• Mr Anthony Clarke;
• Mr Stephen Kenny, Group Security Manager, Toll Group Security for Toll; and
• Mr James (Jim) Challis, Human Resources Manager, Intermodal and Specialised business unit for Toll.
[6] Written closing submissions were filed by each party after the hearing.
[7] Whilst not all of the submissions and evidence may be referred to in this decision, all of such have been considered.
Application of apprehended bias
[8] On allocation of this matter to me, I instructed my Associate to write to the parties to disclose that prior to my appointment to the Fair Work Commission (the Commission) I had worked for approximately nine months as Employee Relations Manager for Toll. The email, sent on 27 September 2018 relevantly provided:
“…The Commissioner wishes to bring the following information to the parties’ attention at the earliest opportunity, and does so, noting that the matter has been allocated to the Commissioner today. Prior to the Commissioner’s appointment she worked for approximately 9 months in the role of Employee Relations Manager for Toll Transport Pty Ltd; essentially in the role that Ms de Lange Savage performs, although the Commissioner notes she has not ever met Ms de Lange Savage.
The Commissioner advises that she thinks she has met Mr Kenny on one occasion, and has worked with Mr Challis. The Commissioner has no knowledge of having met Mr Torres.
If any party has any issue with the Commissioner’s determination of the application, kindly respond by no later than [date]. If an application is made for the Commissioner to recuse herself, it may be necessary for the parties to be heard on such an application and a determination made…”
[9] On 28 September 2018, Mr Clarke wrote to my chambers requesting that I recuse myself from presiding over his application. Through further correspondence on 2 October 2018, Mr Clarke submitted that I should recuse myself from this matter to avoid an apprehension of bias resulting from my previous employment with Toll.
[10] Mr Clarke referred to the High Court of Australia’s comments in British American Tobacco Australia Services Limited v Laurie and submitted that the relevant test is: 2
“[33] In determining whether an apprehension of biashas a reasonable basis, the courts are asked to see themselves as others, not judges or lawyers, would see them. As Laws LJ put it in Sengupta v Holmes:
"it is not enough to show that those in the know would not apprehend any bias."
A standard for apparent bias dependent upon how the matter appeared to judges and lawyers would be difficult to distinguish, in practical effect, from a standard of actual bias.”
…
[34] … The requisite standard required appearance beyond suspicion of bias. It wasemphasised in the observation by Bowen LJ in Leeson v General Council of Medical Education and Registration that:
"judges, like Caesar's wife, should be above suspicion".
[11] Mr Clarke submitted that my former employment was directly relevant to my decision to recuse myself from this matter, in the context of my knowledge of Mr Challis and Mr Kenny. Mr Clarke submitted that any final decision I would make in this matter would inescapably bring a notion that bias, either positive or negative, exists and had affected my decision and would erode the public’s perception of and faith in legal processes being undertaken by neutral and unbiased judicial and tribunal members.
[12] Toll did not file any formal submissions regarding Mr Clarke’s application that I recuse myself from this matter, however correspondence was received that, “[Toll] has no objection to Commissioner Hunt determining the unfair dismissal application filed by Mr Clarke, and are unaware of any reason as to why Commissioner Hunt should take steps to recuse herself from the same”.
[13] A hearing of Mr Clarke’s discrete application of apprehended bias was held in Brisbane on 12 October 2018. Mr Clarke appeared on his own behalf. Ms Katrina de Lange Savage, General Manager Employee Relations appeared for Toll.
[14] During the hearing I confirmed to the parties that I had met Mr Kenny on only one occasion in 2015 while in Karawatha, Queensland. I confirmed that I worked from an office nearby to Mr Challis, and spoke to Mr Challis approximately 10 to 12 times over the course of my employment with Toll. I confirmed that I could not recall working on any particular litigated matter with Mr Challis.
[15] The following discussion occurred between myself and Mr Clarke: 3
Clarke: Sorry, Commissioner, I don't want to inadvertently insult you or for you to take it the wrong way, but my thought was if you had represented management in your years in your SO sort of role or whatever, wouldn't you have leanings to supporting the management's issues over an employee? Wouldn't it be your - don't take this wrong - wouldn't it be your paid job to make sure that the boss won no matter what the cost was?
Commissioner: Mr Clarke, if that were the case then none of the 40-odd or so members that are appointed to the Commission could fairly do their job. It would be an unfair characterisation of any member here that, simply because they were either a union state organiser or they were an in-house person or a lawyer who represented only respondents, that they couldn't fairly do their work, so, yes, my career is out there for the public viewing, it was referenced in my Welcome Speech here at the Commission, I have taken an oath and, from that point on, from when I was appointed in February 2016, that's my job for the next as many years as my appointment is to make sure that I impartially and fairly determine matters, and I take that oath very seriously and I will meet that obligation for the duration of my appointment.
[16] After hearing from each party, I informed the parties that the application to recuse myself was refused, with the reasons for my decision to be given in the substantive decision issued in respect of this matter. My reasons for dismissing Mr Clarke’s application are as follows.
Approach to determining apprehended bias
[17] The principles for determining apprehended bias were succinctly set out by Asbury DP in Woolston v Uniting Church in Australia Property Trust (Q) T/A Blue Care Bli Bli Aged Care Facility (Woolston) 4. In Woolston the Deputy President dealt with applications for both apprehension and actual bias, and said as follows:5
“[12] As the High Court of Australia put it in Ebner v the Offical Trustee 6 “…bias whether actual or apparent, connotes the absence of impartiality.”7 A claim of actual bias requires proof that the decision maker approached the issues with a closed mind or had prejudged the matter and for reasons of either partiality in favour of a party or some form of prejudice affecting the decision, could not be swayed by the evidence in the case at hand.8 The test for apprehended bias is whether “a fair minded lay observer might reasonably apprehend that the [decision maker] may not bring an impartial mind to the question the [decision maker] is required to decide”.9
[13] Actual bias is assessed by reference to conclusions that might reasonably be drawn from evidence about the actual views and behaviour of the decision maker and requires clear and direct evidence that the decision maker was in fact biased. It has been pointed out that in the absence of an admission of guilt or a clear and public statement of bias from the decision maker, actual bias will be difficult to establish. 10 Apprehended bias is assessed objectively by reference to conclusions that may reasonably be drawn about what an observer might conclude about the possible views and behaviour of the decision maker. In relation to apprehended bias, a Court may only need to be satisfied that a fair minded and informed observer might conclude that there was a real possibility that the decision maker was not impartial.11
[14] The Decision of Justice Moynihan in Keating v Morris; Leck v Morris 12is instructive in terms of the authorities considered and the conclusions reached. In that case, his Honour was considering an application that a Commission of Inquiry was tainted by the apprehension of bias and made findings about the conduct of the Commissioner conducting the Inquiry. Those findings included that the Commissioner questioned witnesses rather than allowing Counsel Assisting to do so in accordance with the practice direction; the Commissioner’s questions were aggressive, sarcastic and belittling; and that the Commissioner’s harsh treatment of some witnesses was in stark contrast with his treatment of other witnesses.13 His Honour observed in relation to the questions asked by the Commissioner of certain witnesses that they were not: “fairly described as an exploratory or tentative statement of issues with a view to testing their correctness or to give the witnesses an opportunity to respond to a provisional view.”14 It was also found that the Commissioner interfered in the cross-examination in a hostile way and made accusations about the motives of those instructing counsel.15
[15] On the basis of those matters, Justice Moynihan concluded in that case that:
“The circumstances established by the accumulated weight of evidence would rise, in the mind of a fair minded and informed member of the community, to a reasonable apprehension of lack of impartiality on the Commissioner’s part in dealing with the issues relating to each of the applicants.” 16
[16] His Honour also noted that while many decisions involve allegations of bias against courts, the rules also apply to investigative bodies, but that the application of the rules to such bodies differs from their application to litigation. In this regard, Justice Moynihan noted that a judge makes a decision on the basis of the evidence which the parties to the litigation have thought to be in their best interests to adduce and has no right to travel outside that evidence in an independent search for the truth. 17 His Honour observed that the test for bias “…takes into account the personality and disposition of the investigator, some may be more robust than others.”18 His Honour also observed that the difference between an inquiry and a court does not “dilute or diminish the expectation that a fair and unprejudiced mind will be applied to the resolution of any question.”19
[17] The Commission is not a court and neither is it an investigative body. However, the Commission is not bound to follow the rules of evidence and can inform itself in any way that it sees fit. The Commission also has broad powers to control its proceedings. The Commission is bound to deal with matters before it in accordance with equity, good conscience and the substantial merits of the case. The Objects of Part 3-2 of the Act state that the procedures and remedies relating to unfair dismissal are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned. The Commission is also bound to afford parties natural justice.
[18] The rule against bias has been called one of the twin pillars of natural justice. 20 The other pillar – the hearing rule – requires that: “a decision maker, at least one exercising a public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made”.21 However, as Justice Kirby observed in Allesch v Maunz:22
“…it is worth emphasising that the principle just described does not require that the decision maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.” 23
[19] The Commission is increasingly required to deal with unrepresented parties – both employers and employees – who are very often extremely aggrieved and have a passionate belief in the righteousness of their position, notwithstanding the parameters of the legislative framework in which they seek to articulate their cases. The observation made by Justice Kirby set out above is apposite in the present case [footnotes retained].”
[18] The Full Bench in Woolston v The Uniting Church in Australia Property Trust (Q.) t/a Blue Care Bli Bli Aged Care Facility [2016] FWCFB 278 agreed with the approach taken by the Deputy President and in particular, noted at [10]: 24
“[10]…In the Australian legal system, any application that a decision-maker, whether a judge of a court or a member of an arbitral or administrative tribunal or a person conducting an inquiry, should recuse himself or herself from hearing and deciding a matter on the ground of actual or apprehended bias is to be made and determined in the first instance by the decision-maker.”
[19] At the hearing of this matter, I drew the party’s attention to the decision of the Full Bench of the Australian Industrial Relations Commission, the predecessor to this Commission, in Oram v Derby Gem Pty Ltd. 25 I read to the parties extracts from that decision, as follows:
“[107] The test to be applied in Australia in determining whether a judicial officer is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide 26…
[108] The relevant ground for disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially and without prejudice, rather than that he or she will decide the case adversely to one party. Mere predisposition or inclination for or against a particular argument or conclusion is not sufficient 27 [footnotes retained].”
Consideration on recusal application
[20] A fair minded lay observer would note that a Member of the Commission is likely to have a large number of professional acquaintances or contacts from their earlier working life before appointment to the Commission. This should not immediately disqualify the Member from hearing applications made to the Commission simply because of such past acquaintances or contacts.
[21] I consider that a fair minded lay observer would not reasonably apprehend that a Member of this Commission, having previously performed a majority of their professional industrial relations work for ‘employees’ or ‘employers’, would be unable to fairly consider an application brought by that group which they had in a past life often argued against.
[22] I do not agree to recuse myself from determining the application on the grounds that I was formerly employed by the Respondent in this matter for a period of nine months, or that I met on a handful of previous occasions witnesses for the Respondent in the course of my previous employment.
[23] In my view, the test for apprehended bias has not been made out and I have determined that it cannot be said that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the application.
[24] I informed Mr Clarke at the hearing on 12 October 2018 that the application to recuse myself from determining the application was refused.
Background
[25] Mr Clarke commenced employment with Toll on 14 August 2005. He was employed full-time as a local PUD (pick-up and delivery) driver, and later, at his request, changed to permanent part-time employment. At the time of the hearing he was 63 years old.
[26] Mr Robert Torres commenced full-time employment with Toll on 3 January 2017 as a forklift driver. At the time of the hearing he was 37 years old. He is from the Philippines, having arrived in Australia when he was six years old. He completed grade 12 of high school, but on his own admission struggles with some English language expressions.
[27] In May 2018, Mr Torres made two hand-written complaints alleging Mr Clarke had sexually harassed him. These complaints were provided to Mr Challis on 22 May 2018 The first complaint letter stated: 28
“April 27 (Friday) 7:00pm – 7:15pm when I was having dinner in the lunch room next to the drink machine, Tony came next to me and sat next to me while I was having dinner he suddenly started to rub my arms and legs while I was eating in the lunch room, then he took of and went home.
Then May 1 (Tuesday) 7:00pm when I was having dinner in the lunch room, Tony came sat next to me and started to rub my head, arm and back then he walk away.
May 2 (Wednesday) I text Tony and said no more rubbing…but he didn’t get the point.
May 13 Sunday 2:35pm
He told me next time I molest you will put my hand on your little balls and squeeze them until you cry…
May 13 (Sunday) 3:49pm
No molesting not good need to stop about molesting me and touching me or squeezing my bum at work is also not good I’m not a girl I feel unhappy, unwell, sad and I get nightmare and calling me toy boy.
I can’t even tell you how scared I have been to even write this letter. After a week of thinking about it and discussing it with my fiancé and brother. I was finally convinced that I needed to say something.
I text Tony telling him how inappropriate his text and touching me.
I’ve just been so embarred about it and so scared that I’ll lose my job. However, I can’t stand the thought of looking or talking to this man. I’m so disgusted.
I am writing this letter because Tony needs the proper punishment for sexually harassment.
Thank you for taking the time to address this issue.
Robert Torres 21 May 2018 [sic]”
[28] The second complaint letter stated: 29
“I Robert Torres is writing this letter to complain about an unfortunate incident that recently happened to me at work.
I believe I have been sexually harrasement by an employee in the PUD body truck driver.
This employee name is Tony Clarke.
April 27 (Friday) 7:00pm – 7:15pm when I was having dinner in the lunch room next to the drink machine, Tony came next to me and sat next to me, while I was eating in the lunch room. He suddenly started to rub my arms and legs.
It started on money he lend me and that’s when I relise it started to get worse.
I have some of the text I saved but accidentally deleted some because tried to save it along. [sic]”
[29] Mr Peter Lotomau, forklift driver and TWU delegate also completed a hand-written note on 21 May 2018. Mr Lotomau, together with Mr Ian Buckingham, Toll employee and TWU delegate, provided assistance and advice to Mr Torres in this matter. Having reviewed text messages between Mr Torres and Mr Clarke, Mr Lotomau wrote:
“….started out candidly, light hearted joking around, there was an exchange of mob numbers and with the weeks that followed the banter took twist, with regular catch-ups here at work as well there was a mtg at Tony’s private residence between the two of them. Bucko scrolled thru Rob’s mob reading the countless txts and message between Tony and Rob the language and subjet matter at times of personal and crude tone?? Bucko emphasised that both were not blameless and that they baited and encouraged each other…….
Bucko and Pete discussed with Rob this guys behaviour, unwanted touching and advances not to mention language used in communications verbally or via mob ph was and is absolutely deplorable and unacceptable. 0 tolerance and it needed to cease immediately. Rob was told to sort outstanding debt and to communicate to Tony clearly and direct that he was (Rob) deeply offended and traumatised with physical touching and txt message that it was to cease immediately if not Rob was to report with an official complaint to Toll mgmts.. Rob agreed and its last I heard of the whole matter.”
[30] Mr James Miller, PM Manager, alerted more senior management to the complaint, and in an email of 22 May 2018 stated, “I don’t know how much of this was back and forth or if Tony was led on or encouraged by Robert but he (Rob) claims to be the victim of sexual harassment…”
[31] On 24 May 2018, Mr Clarke was informed by Mr Challis that a complaint of sexual harassment had been made against him by Mr Torres. Mr Clarke was stood down from his position with pay while an investigation of Mr Torres’ complaint was conducted.
Toll interview with employees
[32] On 31 May 2018, Mr Challis and Mr Kenny met with Mr Torres and interviewed him with respect to his complaint against Mr Clarke. Mr Torres was supported by Mr Lotomau. This interview and all other interviews were recorded with the permission of the individuals present, and was transcribed by a third-party transcribing service paid for by Toll.
[33] On 1 June 2018, Mr Clarke was interviewed by Mr Challis and Mr Kenny in relation to Mr Torres’ complaint. Mr Clarke remained stood down from his position with pay following the interview.
[34] On 6 June 2018, Mr Challis and Mr Kenny conducted interviews with five other employees of Toll that they considered may be able to provide further information regarding matters raised by Mr Torres and Mr Clarke in their interviews.
[35] On 8 June 2018, Mr Challis and Mr Kenny conducted another interview with Mr Torres and sought his responses to several statements made by Mr Clarke. Mr Miller was also in attendance.
[36] On 2 July 2018, Mr Challis met with Mr Clarke and issued to him a show cause letter (detailed at [56] below) requesting that Mr Clarke provide his written response showing cause as to why his employment should not be terminated. Mr Challis and Mr Clarke agreed that Mr Clarke’s written response would be due by 5 July 2018, which Mr Clarke provided on that date.
[37] On 17 July 2018, Mr Challis sent Mr Clark a letter terminating his employment with Toll effective immediately on the grounds that Mr Torres’ complaint against him had been substantiated, Mr Clarke had not provided any mitigating circumstances to excuse his behaviour and that Mr Clarke had failed to act with integrity during the investigation, resulting in an irretrievable breakdown of trust in the employment relationship.
Orders to produce transcripts of recorded interviews
[38] At the hearing regarding Mr Clarke’s application of apprehended bias on 12 October 2018, Mr Clarke sought the production of transcripts and audio recordings of the interviews conducted by Toll with himself, Mr Torres and the other Toll employees.
[39] On 15 October 2018, I ordered Toll to produce to chambers a transcript and audio recording of Mr Clarke’s interview of 1 June 2018, and a transcript only of Mr Torres’ interview of 31 May 2018. I allowed Toll an opportunity to propose redactions to be made to the transcript of Mr Torres’ interview, redacting matters irrelevant to the issues in this application.
[40] A copy of the transcript of Mr Clark’s interview was provided to him on 16 October 2018. Redacted copies of the transcript of Mr Torres’ interview of 31 May 2018 and of his interview of 8 June 2018 were provided to Mr Clarke on 17 October 2018.
Evidence of Mr Clarke
[41] Mr Clarke’s material filed in advance of the hearing consisted of two documents that are an amalgamation of Mr Clarke’s statements regarding the events leading to his dismissal and his submissions as to why his dismissal was harsh, unjust or unreasonable. Perhaps as a result of their form, and despite presenting Mr Clarke’s evidence in respect of relevant events, Mr Clarke’s statements are not entirely clear as to the timing of certain relevant events. Details of any matters described as Mr Clarke’s evidence but not appearing within his statements, such as the timing of particular text messages or conversations, relates only to matters that are uncontested between the parties.
[42] Mr Clarke was first advised of Mr Torres’ complaint against him on 24 May 2018. His evidence is that at no time throughout the investigation of Mr Torres’ complaint and prior to his dismissal from Toll was he provided with a copy of Mr Torres’ complaint.
[43] On 1 June 2018 he was summonsed to attend an interview at Toll’s Karawatha depot. Mr Clarke’s evidence is that at the commencement of the interview, Mr Kenny advised Mr Clarke that he was legally obliged to answer Mr Kenny’s questions, which Mr Clarke disagreed with. Mr Clarke recalled that the interview with Mr Challis and Mr Kenny was recorded and lasted for approximately 135 minutes.
[44] In fact the transcript of the interview is as follows:
Mr Kenny: | …do you understand what I intend to discuss with you? |
Mr Clarke: | No. This is the first time I’ve been told what’s going on. |
Mr Kenny: | It’s the first time? |
Mr Clarke: | I’ve been advised of what the actual issue is. |
Mr Kenny: | Okay. What were you told when you were stood down? |
Mr Clarke: | Mr Challis said he’s got a complaint of sexual harassment. That was it. No more. Nothing else was told. |
Mr Kenny: | Yeah. |
Mr Clarke: | So whatever you are going to tell me is cold news to me. And, I’m not obliged to answer your questions. I may as well save your time. I’m not going to answer them. You put them in writing, and I’m more than happy to respond. |
Mr Kenny: | We’ll – we’ll get to that. |
Mr Clarke: | Yeah. |
Mr Kenny: | The are questions to – to respond. You’re obliged to take part in the interview. |
Mr Clarke: | I have taken part. Yes, I’m here now. |
Mr Kenny: | Now? |
Mr Clarke: | Yeah. You asked me to be here at a quarter to 1.00, and I’m here at a quarter to 1.00. |
Mr Kenny: | Yeah. |
Mr Clarke: | I’m not obliged to answer your questions though. |
Mr Kenny: | You are obliged to answer the questions - - - |
Mr Clarke: | No. |
Mr Kenny: | - - - based on you’re a Toll employee, and this is a workplace investigation. You’re obliged to take part in it. |
Mr Clarke: | Yeah. Okay. You ask me the questions, I’ll answer them. Go on. |
Mr Kenny: | All right. It’s up to you. |
Mr Clarke: | Yeah. |
Mr Kenny: | If you don’t – if you don’t want to answer them, we can stop now. |
Mr Clarke: | No. Go on. |
Mr Kenny: | Are you sure? |
Mr Clarke: | Yeah. |
[45] Mr Clarke stated that Mr Kenny produced to him approximately 43 pages of printed text messages that had passed between Mr Clarke and Mr Torres. The text messages produced to Mr Clarke on 1 June 2018 are generally referred to in this decision as “the text messages”. Mr Kenny advised Mr Clarke that Mr Torres had surrendered his personal mobile phone to Toll and Toll had retrieved the text messages from Mr Torres’ phone. Mr Kenny demanded that Mr Clarke provide further information regarding each of his conversations with Mr Torres, dating back several months. Mr Clarke recalled that Mr Kenny:
• Put to him that he had stolen ANZAC biscuits and other food stuffs shown in a photograph to Mr Torres;
• Asked Mr Clarke why he had sent to Mr Torres several photos, including photos of Mr Clarke holidaying in Cuba, of Mr Clarke’s dogs and of a parade of Commonwealth Games medal recipients; and
• Asked Mr Clarke about various other personal conversations passing between Mr Clarke and Mr Torres, which Mr Clarke considered to be totally unrelated to Toll.
[46] Several text messages sent by Mr Clarke to Mr Torres are noteworthy, and it is helpful to extract those text messages in full.
[47] On 24 March 2018, the following text messages were sent between Mr Clarke and Mr Torres:
Mr Torres (5:27pm): | I want to have a sicky on Thursday bout I might get in trouble |
Mr Clarke (5:30pm): | Thu okay We do a Stat Dec for you All legit n legal Don’t tell anyone okay |
[48] From 10:19am to 10:35am on 28 March 2018, the following text messages were sent between Mr Clarke and Mr Torres:
Mr Torres (10:19am): | Do we have a long weekend this week |
Mr Clarke (10:22am): | Yes Off Friday for Good Friday so you go to church n pray Monday off to pig out n eat Easter eggs but careful tummy not get fat |
Mr Torres (10:23am): | Ok thank you |
Mr Clarke (10:24am): | You buy old man yummy easter egg? |
Mr Torres (10:26am): | Then after wash the car make it sexy |
Mr Clarke (10:29am): | You call him a cunt or something Lots of sickies today apparently at work You make car sexy You get close hair cut n make Rob more sexy [smiley face] |
Mr Torres (10:33am): | Haircut when I get home |
Mr Clarke (10:33am): | Nice n close n send selfie |
Mr Clarke (10:35am): | Maybe shave head Look more sexy like strong man killer |
[49] At 3:34pm on 2 May 2018, Mr Clarke texted Mr Torres:
Mr Clarke (3:34pm): | You okay with that? He fwd u his answer? He sympathetic to you. . Hope so Hope my little mate push really hard of pain you suffer cause of cunts at Toll but not say old man who is mate molest you n hurt your back. ..am very sorry I hurt you.. will be more careful when I molest you next time [smiley face] [smiley face] [smiley face] Be good my mate |
[50] From 5:41pm to 7:21pm on 2 May 2018, the following text messages were sent between Mr Clarke and Mr Torres:
Mr Clarke (5:41pm): | Mate…feel so sad for you. Give u gentle rub next time U feel better then Hope you not angry at me |
Mr Torres (5:42pm): | No more rubbing. . Spend to much on therapy, massage and chiropractor that’s why no money for bed. |
Mr Clarke (5:45pm): | No good mate Gotta be something to relieve awful pain Better be so careful at work..take no risks |
Mr Torres (5:51pm): | Carnt afford anymore therapy got no more money. . |
Mr Clarke (5:53pm): | We gotta work something out my mate |
Mr Torres (6:26pm): | Borrow money |
Mr Clarke (7:09pm): | No |
Not borrow | |
Me be your step dad n we work things out to help my good mate |
Mr Torres (7:13pm): | That’s why I decide to do uber to try to get extra money but my back painful.. How can my step dad help? I still need to save $7000 just for my prospective marriage visa applications form.. |
Mr Clarke (7:17pm): | Oh my beautiful step son Hard to explain to wife why I give $7g to new son. She smell a rat n say what goes Did secret loan to other work mate n not tell wife..money from secret account. . What if u work Sat shifts We will work it thru |
Mr Torres (7:19pm): | Uber on sat |
Mr Clarke (7:21pm): | No |
Listen u dumb cunt cum beautiful son…more money Sat four hr shift then Uber.. you heading for belting from new Dad” |
[51] From 10:40am to 12:31pm on 9 May 2018, the following text messages were sent between Mr Clarke and Mr Torres:
Mr Clarke (10:40am): | We got paid |
How much bitch want | |
Mr Torres (10:42am): | Gona check online how much oil, oil filter, spark plug and air filter cost Thank you step dad |
Mr Clarke (10:42am): | Not sure Pay went in Tue early |
Mr Clarke (12:15pm): | Did toy boy get paid $$$???? |
Mr Torres (12:17pm): | Not yet |
Mr Clark (12:17pm): | What goes |
Toy boy needs$$ | |
Mr Torres (12:19pm): | How much can you lend me step dad |
Mr Clarke (12:19pm) | Depends How much toy boy seek Less than a million? |
Mr Torres (12:20pm): | Hahaha |
Mr Clarke (12:20pm): | #how much bitch# |
N when | |
Mr Torres (12:22pm): | I’m going to browns Plains in 10mins to see the doctor there.. We’re you now |
Mr Clarke (12:23pm): | Of fuck My so sexy toy boy Me at Narangba Off to Radcliffe |
… | |
Mr Clarke (12:29pm): | Mate… stay here by seaside till knock off this arvo Problem… my secret debit card at home. Hide it.. Can’t use other card or wife find out…secret stuff with toy boy |
Mr Torres (12:29pm): | Hahha how you gona withdraw |
Mr Clarke (12:31pm): | You gotta stop being bitch n tell in advance of secret transactions for beautiful toy boy So fucken secret stuff here |
[52] From 11:41am to 2:44pm on 12 May 2018, the following text messages were sent between Mr Clarke and Mr Torres:
Mr Torres (11:41am): | Morning step dad, Went doctors Wednesday and got mouth check and gave me antibiotics and bonjela and referrer me to dentist got check at dentist Thurs and told me I need 2 tooth taken out the bottom back wich I don’t have dental cover and he told me it will cost a lot. Stressing cause he told me it needs to be taken out on Saturday Sorry step dad |
Mr Clarke (11:44am): | All okay Must be wisdom teeth I had mine out few years back Gotta cum out |
Mr Torres (11:48am): | Cost teeth removal anaesthetic to from $1,500 to $3,000 per tooth |
Don’t know what to do I don’t have that kind of money. | |
… | |
Mr Clarke (11:54am): | Mate…know it painful Suggest to Dr to pay it off n may get it cheaper I know man who did this get much cheaper |
Mr Torres (11:56am): | That’s why the doctor referral me to get it cheaper but I don’t have the money it’s stressful Sorry step dad |
Mr Clarke (12:40pm): | No say sorry my mate Can u ask real Dad to help out You gotta get teeth out Should find tooth surgeon will be show compassion with cost |
Mr Torres (12:52pm): | Can step dad lend me and I can repay you |
Mr Torres (1:45pm): | How much can step dad lend me |
Mr Clarke (2:24pm): | Mate |
Sorry but too big an ask | |
You ask your Dad? | |
Or ask Dr for offer to pay off n possible Dr charge less | |
Mr Torres (2:27pm): | Yeah I went and ask them already, they carnt help. That’s why I ask step step dad for help and how much you can lend step son [EMOJI] |
Mr Clarke (2:28pm): | Mate Toooo big an ask Love toy boy very much If wife found out would be divorce Gotta ask tooth Dr for deal |
Mr Torres (2:29pm): | I will pay you back trust me |
Mr Clarke (2:31pm): | Mate…do trust you but too big an ask You put me under much pressure Make it uncomfortable for me. Me been generous so far Please mate |
Mr Torres (2:37pm): | $1500 is to much step dad |
Mr Clarke (2:39pm): | Mate please Too much pressure from loved one You make me sad |
Mr Torres (2:39pm): | Sorry step dad nevermind thank you |
Mr Clarke (2:40pm): | We still friends I hope Please reassure me Love toy boy very muchly |
Mr Torres (2:42pm): | Not to worry I’ll will pay the money I owe you just give me couple weeks. Thank you |
Mr Clarke (2:44pm): | Mate That not issue Some each week into cua account Not put u under pressure Love u much n wanna stay friends |
[53] From 12:00pm to 8:01pm on 13 May 2018, the following text messages were sent between Mr Clarke and Mr Torres:
Mr Torres (12:00pm): | Out off antibiotics and pain killers only eat biscuits and water for breakfast, lunch and dinner until pay day next week. . |
Mr Clarke (12:07pm): | Good…you get trim sexy tummy on that diet |
Step Dad like that | |
Mr Torres (12:09pm): | Hahaha.. I need real food no diet no money to buy food unless step dad lend me little money to buy food, antibiotics and painkiller for tooth pain. |
Mr Clarke (12:10pm): | Bring you food tomorrow Will fatten u up Why DAD N MUM not help toy boy |
Mr Torres (12:10pm): | They don’t work |
Don’t know if I can work tomorrow | |
Mr Clarke (12:12pm): | Will meet u somewhere |
Give u food n some loving to make u feel better | |
Mr Torres (12:15pm): | My recharge on my phone is low.. [EMOJI] |
Mr Clarke (12:16pm): | Charge up Love you very much You rest now May see u tomorrow n feed u |
Mr Torres (12:23pm): | I mean I have no more load it’s about to expire, I normally recharge $30 every month |
Mr Clarke (2:35pm): | For fuck sake you little bitch. Stop trying to fleece me…not your milking cow…no moo moo. Next time I molest you will put my hand on your little balls and squeeze them till you cry… |
Mr Torres (3:49pm): | No molesting not good need to stop about molesting me |
Mr Clarke (4:06pm): | Okay |
Mr Torres (5:37pm): | Also touching me or squeezing my bum at work is also not good I’m not a girl I feel unhappy, sad and I get nightmare and toyboy I don’t like it.. |
Mr Clarke (8:01pm): | Okay |
[54] It is Mr Clarke’s evidence that at the end of the interview, Mr Kenny asked Mr Clarke if he thought that the interview had been fair, to which Mr Clarke states that he positively responded “NO”. It is not recorded in the audio file available to all of the parties and the Commission, nor is it in the transcript of the interview. It is Mr Clarke’s evidence that this, together with him being ‘accused’ of stealing ANZAC biscuits, has been doctored from the audio file, further discussed below at [198].
[55] Mr Clarke was handed a show cause letter on 29 June 2018, which was then replaced by a second show cause letter dated 2 July 2018. He considered that Mr Challis had ‘had one of his lackeys’ approach Mr Clarke’s colleagues and attempt to solicit further complaints from them. He also considered that Mr Torres had been approaching colleagues to solicit complaints from them. Relevant to the interviews that Mr Challis and Mr Kenny had with several of Mr Clarke’s colleagues. Mr Clarke alleged that they had “…divulged contents of my private phone conversations, deliberately taken out of context and with complete malice, defamed my name. They had stated things that were untrue.” 30
[56] The show cause letter of 2 July 2018 is as follows: 31
“Dear Tony
RE: Show Cause Letter
I write to advise that we have completed the preliminary investigation into the complaint surrounding alleged sexual harassment.
As you are aware Mr Torres reported to the business, on 21 May 2018, that you had sexual harassed him in the workplace and were subjecting him to inappropriate text messages.
Whilst the investigation has found that there is enough evidence to determine that the relationship was one of mutual consent, it does not minimise the inappropriateness of such behaviour in or around our workplace with Toll employee’s.
It is the belief of Toll that what our employee’s do in their private time, which is legal and lawful is of no concern to us as the employer. However, engaging in behaviour that may place Toll into disrepute, adversely affect others or is of an inappropriate or dishonest nature cannot be condoned in an ongoing employment relationship that is required to be based on trust and confidence.
Our investigation has found that your communications and sexual references towards Mr Torres inside and outside of the workplace, especially once he sought to receive monies from you, were not in line with Toll’s values or expected ways of behaving. Further to this we are concerned for the ongoing employment relationship as on many occasions your statements and responses during the investigation, when reviewed against the written evidence, were inconsistent and evasive and we were therefore unable to accept your version of events.
For clarity we will, but not limited to, give you two examples of inappropriate statements that were made by you where we were unable to accept your version of events and cause us great concern when considering the trust and confidence required in an ongoing employment relationship:
1. Mr Torres wrote to you regarding a long weekend:
“I want to have a sickie on Thursday:
a. You replied with:
“thu ok, we do a stat dec for you, all legit n legal, don’t tell anyone”
2. Mr Torres alleged you touched him inappropriately in the back (and hurting it) and you denied ever touching Mr Torres except for his head/hair.
a. You wrote to Mr Torres:
i. “hope my little mate push really hard of pain you suffer because of c**ts at Toll but not say old man who is mate molest you n hurt your back…am very sorry I hurt you…will be more careful when I molest you next time”
b. To which you also denied making references to molesting and stating you only spoke of molesting regarding a Catholic Priest when you were passing church.
Whilst we have only provided two examples of your responses that clearly demonstrate you made misleading, dishonest and inappropriate statements, it can be evidenced throughout the investigation that many of your statements to the investigator contradicted the written evidence. In particular, you either denied or stated that you could not recall when questioned about any communications that may have had a negative impact on you during the investigation.
For example, it was found:
• That upon your introduction of such language you consistently referred to Mr Torres as many names such as ‘b*tch’, ‘beautiful/sexy toy boy’, ‘step son’ and tell him you ‘love’ him.
Further to this we are greatly concerned that you deny Mr Torres ever asking you to cease such communications however it was evidenced in writing that he did in fact ask you to cease the comments and behaviours around molesting and calling him ‘toy boy’.
The above information and the findings of our investigation lead us to conclude whilst we believe the relationship was mutually consensual it does not preclude our findings that you acted inappropriately as a Toll employee and deliberately provided misleading and dishonest statements.
Toll considers your actions, as outlined above, to be serious instances of unacceptable workplace misconduct , which shows a demonstrated disregard for Toll Policy and Procedure, in particular the Toll Behavioural Expectations Policy and Toll Code of Practice. Toll now requests you show cause as to why your employment should not be terminated.
Toll also wishes to extend you an opportunity to provide any response in writing you wish to make to the above issues by 3.00pm Tuesday, 3 July 2018. If you choose not to, it will be assumed that you have no response. I invite you to attend a meeting with myself at 3:00pm Tuesday, 3 July 2018 at the Karawatha Depot Operations Building [address].
You have a right to be accompanied by a support person at the meeting. If you do wish to be have a support person present, please let us know who will be attending.
Should there be any documents or any other material that you wish the Company to consider before the meeting, can you please arrange for copies to be provided to be by 3.00pm Tuesday, 3 July 2018.
Yours sincerely
Jim Challis [sic]”
[57] While the show cause letter requested Mr Clarke’s response by 3 July 2018, it was agreed between Mr Clarke and Mr Challis that he would be given additional time to provide his written response, until 5 July 2018.
[58] On 5 July 2018, Mr Clarke emailed his written response to the show cause letter to Mr Challis, which stated: 32
“Dear Mr Challis
RE: SHOW CAUSE LETTER
I respond to your Show Cause Letter dated 29 June 2018 and the subsequent meeting of Monday, 2 July 2018 at 11:30am at the Toll Depot [address].
The suggestion that my private texts could bring Toll into disrepute or that I have provided misleading information etc is farcical. There is no legitimate evidence supplied that my employment should be terminated. I am under no obligation to respond to or recall whatever text messages I have sent or received from friends or work colleagues, to suggest otherwise is pure fantasy. Is Mr Challis and Mr Kenny purporting to be the companies moral police, maybe they should be advised of which century we are in. Your initial suggestion to the allegations being very serious to the defaming of me, then to supply a show cause letter which clearly indicates the allegations are mainly false and trivial. You have provided no substantial evidence of any wrong doing on my part. This suggests that you should apologise to me at your first opportunity and advise those who defamed me, a copy of your written apology.
……..
……..
The best description for the contents of your letter could be described as totally pathetic and bordering on theatrical.
A fellow employee sought my assistance in relation to a workplace injury, and having empathy for a fellow colleague who I believed at the time had been treated rather harshly by the Employer, prompted me to provide the assistance that he sought.
On 21 May 2018 that colleague Mr Torres by your advice made some sort of complaint.
The first that I was advised on any complaint was at 9.20 am on Thursday 24 May 2018, whereupon I was advised of the complaint by yourself and also advised that I would forthwith be suspended from duty. At this meeting you uttered that the first you had been advised of these allegations was the day previous, this being Wednesday 23 May 2018, yet at your first opportunity you claimed that these were very serious complaints and you chose to suspend me there and then. These actions indicate either incompetence or blatant malice on your part, or possibly both suggestions.
An experienced professional Human Resource Manager would obtain reasonable evidence before taking the option to suspend an employee. Yet you had not possibly had sufficient time to obtain evidence of such, but at your first opportunity rushed to suspend me then carry out an investigation at a later time. The allegations went from serious to a load of piffle. It is like suggesting a Police Officer rush to arrest a person on the word of a complainant before investigating all aspects of the evidence and evaluating same. You failed on this count, clear signs of malice or incompetence and acting in a manner unbecoming of a HR Manager.
On Friday 1st June 2018 at 12.45 at the Toll Karawatha depot I was interviewed by Mr Kenny and yourself. This interview was allegedly recorded by Mr Kenny.
At the commencement of the interview I advised Mr Kenny that I was not obliged to answer his questions, Mr Kenny instructed me that I WAS obliged to answer his questions. At the end of the interview Mr Kenny asked me if I thought the interview had been conducted ‘fairly’. I replied NO.
On the note of Mr Kenny believing that I was obliged to answer his questions, I would submit that clearly Mr Kenny or yourself have any idea of procedural fairness, unless of course you both believe that you operate as a Star Chamber or along the lines of the Queensland Crime and Corruption Commission whereas interviews are secret and all questions are to be answered otherwise a criminal offence may be committed. Clearly you and Mr Kenny are somewhat deluded as to your own authority and it is questionable that Toll Management or Tolls legal representatives would accept this procedure in the first place.
You have raised suggestions in relation to the supply of a statutory declaration to an employee who is unwell and had been treated very harshly by the employer.
I draw your attention to The Australian Fair Pay and Conditions Standard, 254 2 (b)
My responsibilities in the performance of my Justice of the Peace activities are strictly confidential, should you wish to raise any issues in relation to my J.P. duties, then I suggest you raise those issues with the Queensland Justice Department, JP Branch.
Your raising of that same matter is very selective to say the least, and the rest of the conversation is for some unknown reason, missing. This matter has been taken completely out of context. Something that you seem to specialize in for your own ends.
On the subject of the supply of a Statutory Declaration, lets take the opportunity to back track of the real issue of Stat Decs and why you have chosen to raise the matter.
Upon the introduction of Workchoices legislation by the Federal Government, it was made clear by Toll Management at the Eagle Farm depot that Toll would not comply with the legislation in relation to the minimum standard of ten days sick leave or the acceptance of a stat dec in lieu of a medical certificate. The matter of a memorandum attached to all employees pay slips dated 2 December 2009 signed by Mr Andrew Hack, Regional Manager, made it blatantly clear that Toll would not accept a stat dec signed by myself. This ridiculous instruction was later withdrawn by the then General Manager Mr G. Smith who duly apologised to the union delegate. This obviously caused extreme embarrassment to Toll and continued with the personal vendetta raged against my self. The other previous mentioned issue of the standard of ten sick leaves days for employees rather than eight as per the then Federal TWU award, and Tolls absolute refusal to comply with the Workchoices legislation caused me to refer my complaint of this refusal to the then Workplace Ombudsman’s office, who upon their quick investigation caused Toll to accept the increased sick leave provision, including a written apology to myself and the guarantee from Toll to provide backdated credits for sick leave to all employees.
I believe you are correct in your suggestion of employees activities in their own time is correct, whatever text messages or phone calls were made or received between myself and Mr Torres and my wife are frankly, none of your business. What recall I have of text messages or phone calls going back many moths to my many work colleagues is also none of your business. (Your ludicrous suggestions as to my memory is pure piffle)
The interview between Mr Kenny, yourself and myself whereas Mr Kenny produced print outs of retrieved text messages from Mr Torres was somewhat theatrical and more relevant to the two old men sitting under a tree discussing an episode from Days of Our Lives or Bold and the Beautiful, more-so a pathetic divulge into the private life of others and none of your business in any form whats so ever. Reminded me of two nobodies going nowhere, of a dullard and a drone attempting to feel important in their pathetic little world. Certainly not professional for people claiming to be experts in human resources.
If Mr Torres believes that he had a complaint then the appropriate forum is by attending a Police Station and making a complaint.
Mr Torres had very good reason to seek my assistance in relation to his workplace injury, after being shunned by his Union delegate and being told he may have to repay his salary when on light duties etc, he had been duly advised by other colleagues to seek my assistance. The Reasons for Decision of 30 November 2010 by Q-Comp in over riding another employees rejection of their injury claim by the Employer (Toll) and the successful appeal run by myself clearly showed that some Toll managers were prepared to be untruthful in their failed attempts to deny an employee injury benefits. Page 9 of the Q Comp decision highlighted the attitude of some Toll managers being deemed responsible for that employees injury, Pages 13,14,15 highlighted the observance by the Adjudicator of Toll management and the acceptance to believe me over certain managers.
The Show Cause notice of 29 June 2018 is clearly a grubby attempt by Mr Challis to get even for his past indiscretions and clearly shows his complete lack of knowledgeable procedural fairness or due process. Mr Challis displays signs of being very selective of text messages and conversations in his submission of allegations in this matter.
The previous failed attempt by Toll to terminate my employment on 9 February 2012 for my refusing to sign a medical indemnity form shows the personal vendettas run over many years, this is again highlighted with this current matter.
The involvement of this allegation by Mr Torres highlights on aggravated issue, his failed attempt to demand money by menaces from me, and he is entitled to air his grievance, in the correct forum which is clearly not within the realms of Toll Transport.
Furthermore, Maybe Mr Challis and Mr Kenny would be well advised to check the meaning of defamation, their conversations clearly stating to other Toll employees that I have molested another employee and therefore suggesting criminal behaviour is very concerning. Is this representing Toll as a company or more importantly, will Toll indemnify the behaviour of Mr Challis and Mr Kenny?
On another note, Toll is obliged to supply a pay slip within 24 hours of an employees pay being received, as of this date I have not been provided with any pay slips for over five weeks. Another example of Toll disregarding its legal obligations. In the meantime I have been bombarded with text messages from a person claiming to be from customer service seeking my date of birth! After being in the employ of Toll for thirteen years, Toll still does not know my date or birth or correct residential address.
Anthony Clarke
5 July 2018 [sic]”
[59] On 10 July 2018, Ms Challis sent to Mr Clarke an email regarding Mr Clarke’s response to the show cause letter, which stated:
“Dear Tony
Re: Your correspondence dated 5 July 2018
Thank you for providing your recent response to the Show Cause Letter issued to you on 29th July 2018, and for attending a meeting with Toll at the same time.
The purpose of this letter is to inform you that we have now reviewed the content of your letter, and resultantly wish to provide you with a further opportunity to respond to the allegations that were originally put to you in the show cause letter dated 29/06/2018:
In that letter we gave you two examples of inappropriate statements that were made by you where we were unable to accept your version of events and due to the evidence presented led us to believe you were not being honest during the investigation. Your responses to that letter did not mitigate the serious concerns we have that the trust and confidence we need to have in you as an employee and that are central to maintaining an ongoing employment relationship have been ameliorated.
Specifically we require your responses as to why you sought to provide representations that do not align to the written evidence or that of the complainant as per the below: 33
1. Mr Torres wrote to you regarding a long weekend:
I want to have a sickie on Thursday:
b. You replied with:
“thu ok, we do a stat dec for you, all legit n legal, don’t tell anyone”
2. Mr Torres alleged you touched him inappropriately in the back (and hurting it) and you denied ever touching Mr Torres except for his head/hair.
c. You wrote to Mr Torres:
ii. “hope my little mate push really hard of pain you suffer because of c**ts at Toll but not say old man who is mate molest you n hurt your back…am very sorry I hurt you…will be more careful when I molest you next time”
d. To which you also denied making references to molesting and stating you only spoke of molesting regarding a Catholic Priest when you were passing church.
Toll also seeks to provide you with additional opportunity to respond to the show cause as it was apparent your correspondence dated 5 July 2018, does not address the allegations as raised.
Toll further holds the view that it is also pertinent to indicate to you that we cannot agree with several comments made by you in your recent correspondence. More particularly, we cannot agree that you, as an employee of Toll, are not under any obligation to respond to, or recall text messages that you have received from work colleagues presented to you during an investigation process. Additionally, Toll does not agree that the contents of correspondence transmitted to you was either “…pathetic” or “…theatrical”, nor warranted inappropriate personal attacks on other members of Toll. We are concerned about your comments relating to these as we hold the view that the Show Cause Letter contains serious allegations, which (pending your response) could adversely affect your ongoing employment with Toll.
The Show Cause Letter presented to you refers to an investigation which was conducted by Toll after receiving a serious complaint from an employee. The investigation involved alleged conduct which had occurred during, and outside of working hours.
In support to this, during the investigation process you were made aware that Toll had received a workplace complaint about your conduct in the workplace. This conduct was alleged to include the transmission of various text messages, which a work colleague alleged that you have transmitted to him during and outside of working hours. Toll showed you text messages as alleged, and asked you to respond to the same on a confidential basis. You did not at any time provide copies of, or details pertaining to text messages transmitted from your own telephone.
Following the conclusion of the investigation process, Toll provided you with evidence to support the allegation, that when participating in the when participating in the workplace investigation you have been dishonest.
As an employee of Toll you are required to participate in investigations with integrity and co-operate during any workplace investigation processes. As an employee, you also have an obligation to be honest in your dealings with Toll.
Toll denies that you have been provided with insufficient time to respond to the Show Cause Letter, however based on your comments and our concerns that you may have misconstrued the purpose of the letter, we wish to provide you with time to provide an additional response. In this regard we require you to provide any further information by no later than close of business Thursday 12th July 2018. failing which we will make a determination on this matter based on the information we have elicited from you via the investigation process and your response to our show cause letter.
In closing, we strongly deny that at any time, any representation have been made by Toll to suggest that you “…have molested another employee.”
Yours sincerely
Jim Challis [sic]”
[60] On 12 July 2018, Mr Clarke replied, although he sent his response to Mr Alex Lombardi, General Manager of Human Resources for Toll’s ‘Intermodal & Specialised’ business unit. Mr Challis reports to Mr Lombardi. 34 Mr Clarke’s email in response stated:35
“Dear Alex
Thank you for your email of 10 July 2018.
Defamation.
The suggestion that Mr Challis and Mr Kenny (Toll Transport) have not made defamatory comments to my colleagues is clearly not correct.
The suggestion that I should supply Toll with my personal mobile phone is not an issue, I am more than happy to provide my mobile phone on the undertaking that Toll
1. Provide a copy of the original complaint from former employee Mr Torres. (complainant)
2. Provide full unedited copies of all transcripts in electronic or written form between myself and all other employees involved including all interviews by Mr Kenny and Mr Challis.
The provision of the above would clear up and put to rest the denial by Toll of their defamation issues.
At this point of time I am aware of more than one colleague who has clearly been advised by Mr Challis and Mr Kenny that I had ‘molested’ a former employee. As well as direct clear slander to others ‘that I groomed him for sex’, to the clear language to those interviewed ‘did he also molest you’ The defaming of me has spread from the confines of the Toll Karawatha depot to Toll IPEC deport at Larapinta to as far as the receiving dock of Bunnings Rothwell. These statements from Mr Challis and Mr Kenny are untrue.
This clear direct slander from Mr Challis and Mr Kenny to other employees is disgraceful conduct for senior management of Toll, in their failed attempt to silence dissent.
Maybe it could be suggested at this point of time that senior Toll management have provided misleading or false information in relation to the defamation issue.
My only option is to now forward a ‘Concerns Notice’ to Toll.
Other Matters.
Original complaint.
At this point of time, I have never been provided the opportunity to sight or be supplied a copy of the initial complaint of Mr Torres (the complainant)
The only advice provided by Toll is that they received a complaint. Clearly, for a complaint to be handled in a fair and reasonable manner then normally the accused is in the first instance furnished with a written copy of the allegations. I now ask the question of why after 6 weeks I have not been supplied a copy of the allegations? Another clear example of Tolls failure to comply with procedural fairness.
Further to the complaint, considering the fact that Mr Torres resigned on Thursday 5 July 2018, after he was verbally advised via a telephone call he should resign immediately is somewhat concerning. Considering the fact that at no time did I make any complaint about a colleague checking out my hair cut or seeking money, why then did Mr Torres suddenly resign. Checking ones hair cut or asking for a monetary loan are neither an issue or any business of Toll Transport. Additionally, why was the then complainant stood down some weeks previous to his mysterious sudden resignation?
Statutory Declaration.
I have supplied relevant information in relation to this matter, any additional information should be addressed to Mr Torres as unlike Toll Transport, I respect other persons privacy and are unable to discuss or provide information to the health issue that culminated in the asking for a statutory declaration. To the best of my knowledge, and not having the power to of complete memory recall that Toll demands from its employees, do not ever recall the issuance of any statutory declarations to former employee Mr Torres. Is it now the matter that Toll is resorting to conspiracy theories out of desperation.
It is of grave concern of the possibility that an unknown person/s has/have supplied any Statutory Declarations under my registered number as a Justice of the Peace. Any suggestion of this occurrence should be investigated in the first instance.
As suggested in earlier conversation in relation to this matter, if you do have issues with the performance of my duties as a Justice of the Peace, I am more than happy to supply to Toll Transport, the contact name and details of the Queensland Department of Justice, Manager JP Branch, where as any other citizen of Queensland, you are entitled to refer any issues.
I am not aware of any legal ‘gag’ order obtained by Toll Transport from a competent authority that prevents me or any other employee from discussing contents of the Enterprise Agreement or the Fair Work Act.
Text Messages
Wordings of mentioned text messages, I was unaware that either Mr Challis or Mr Kenny were ignorant of much published events in relation to the current saga involving Cardinal George Pell. It is now apparent that Mr Challis chose to down play my response in relation to the ‘church’ conversation.
I am more than happy to elaborate on the full meaning of these words purely for their benefit.
Upon walking from the visitors car park in my residential building whereas I has provided car parking for Mr Torres, through the precinct named ‘St Stephens Cathedral’ (Church) enroute to his legal firm in Creek Street Brisbane City, the issue arose of George Pell and the allegations made against him, in that same conversation I mentioned certain words per say from the book Cardinal by Louise Milligan in relation to molesting persons. I’m sure Mr Challis and Mr Kenny are capable of reading that book and within that book find those exact wordings as per my texts that they retrieved from Mr Torres. At the time of the conversation between Mr Torres and myself, my former colleague laughed at the Church sarcasm and we continued on our way. My understanding was that he was fully aware of the meaning of that conversation and raised no concerns to those references.
There has been no clarification provided of alleged touching of his back, like where when and how this may or may not have happened, but rather that conversation was clearly associated with his back injury at the hands of Tolls negligence and his current injury claim against Toll, a personal joke between Mr Torres and myself, deliberately misconstrued by Mr Challis grasping at straws and in my opinion best described as deliberate misinterpretation.
For the assistance of Mr Challis and his mention of some Church, St Stephens Cathedral is situated between Charlotte Street and Elizabeth Street Brisbane City, being situated between my residence and that of Mr Torres legal firm of 12 Creek Street Brisbane City. Furthermore, none of the above is of any concern or business of Toll. There was no mention of some priest as such.
Obligations.
For Toll to suggest that an employee is obliged to respond to or have instant recall of personal text messages or conversations, shows complete ignorance or stupidity on the person making such a demand. These are bazaar suggestions, which once again causes me to form the opinion that the requests from Toll continue to be theatrical and lacking reasonableness in any form whatsoever. Is Toll as a transport company serious that all employees must respond to demands of personal explanations going back six months as if an employee is under some compulsory obligation to recall same, the provision of a caution before a disciplinary interview is the normal accepted legal practice enforced by the Judiciary and accepted by the legal fraternity in Australia, yet Toll Transport believes that it has special powers to override accepted principles to enforce compulsory answering of questions, as an example of actions bordering on complete ignorance and bully like activities in the extreme. This operational belief by Toll Transport is a very poor reflection on any business that operates in Australia. It is blatantly obvious that there are those within Toll who get some sort of personal thrill trawling through personal messages of others that are frankly, none of their business. I personally wonder about the motivations of those who do such.
The suggestion from Toll Transport that I have been dishonest lacks credibility, the meaning of ‘dishonest’ from within the Oxford Dictionary means fraudulent or insincere.
I take offense to these suggestions, you have provided no evidence of any fraudulent activities on my part. As per my recorded interview with Mr Kenny and Mr Challis and the opinions expressed by those two individuals, I do not respect the opinions of Mr Challis and for good reason. I am under no obligation to explain my personal text messages or phone conversations from my personal device to some sticky-beak type who gives me the opinion of being narrow minded and living in some bygone era. The opinions of Mr Challis are clearly not from broad minded persons or groups that I mix with, nor would I wish to associate with. It is blatantly obvious that neither Mr Challis or Mr Kenny understand the meaning of the word slander.
Furthermore, my text messages between a former employee as well as phone conversations on my personal devices are of no concern to Toll Transport, a matter which would have remained private had Mr Challis and Mr Kenny not chosen to spread lies to other employees and deliberately defame me with matters which are untrue, for their own ends.
The only persons who have brought discredit to Toll would be unprofessional actions of Mr Kenny and Mr Challis.
As for the suggestion that I should trust Toll with my personal phone, the action above would clearly deter any reasonable minded person to provide any personal information to Toll.
It may be suggested that Toll Transport does not come within the realms of Toll as a business unit in any form whatsoever and would ask, does Toll believe they come as an authority within the powers of the Police Powers and Responsibilities Act 2000 to seek and demand evidence.
There is no substantial evidence of any wrong doing on my part to suggest my employment should be terminated, more so a reliance on gossip innuendo and missing conversations. Additionally you complainant has bolted, stood down after making his unsubstantiated claims and then suddenly resigning after a telephone call from Toll, most unusual to say the least. I await you full copy of the initial complaint and copies of all correspondence both electronic and in paper form as requested above. Additionally request a copy of any Statutory Declaration issued under my name to Mr Torres.
Anthony Clarke
12 July 2018 [sic] [Mr Clarke’s emphasis]”
[61] On 17 July 2018, Mr Clarke received an email from Mr Challis attaching a letter terminating Mr Clarke’s employment (the Termination Letter), which stated: 36
“Dear Tony
Re: Termination of Employment
I write to formally advise you of our decision and thank you for your responses in relation to the allegations and show cause letters provided to you on 2 July 2018 and 10 July 2018.
Given your responses and the circumstances we have chosen to write to you with the outcomes of our deliberations rather than invite you to attend the workplace as your personal and inappropriate statements towards managers is also concerning and unacceptable.
After careful review and consideration of your responses we have arrived at the reasonable conclusion that you have not provided any mitigating circumstances to excuse your behaviour.
In addition we have also formed the view that you have failed to act with integrity during the investigation into this matter and this has resulted in an irretrievable breakdown in the employment relationship and therefore the trust required for you to maintain ongoing employment with Toll.
Toll deems the combination of your conduct during the investigation of this matter and the unacceptable conduct evidenced in the investigation findings serious enough to warrant the termination of your employment. The purpose of this letter is to confirm that your employment with Toll will be terminated effective immediately with payment in lieu of notice.
You are required to return all company property, including but not limited to access cards, uniforms and keys by close of business Thursday 19 July 2018.
Final payment of any relevant notice, outstanding monies and accrued entitlement will be paid into your nominated bank account, in accordance with your employment conditions.
Yours faithfully
Jim Challis”
[62] Mr Clarke stated that on 2 December 2009, Toll had issued a memorandum to employees to the effect that a statutory declaration proving an employee’s sickness witnessed by a Justice of the Peace who was also a Toll employee would not be accepted as proof of sickness. It was Mr Clarke’s view that the memorandum had clearly been directed at him. The memorandum had later been rescinded, but he concluded, “…the rage against me witnessing a statutory declaration as a JP continued with CHALLIS, as of the show cause letter dated 2 July 2018.” 37
[63] Mr Clarke considered that Mr Challis and Toll were biased against him as a result of Mr Clarke referring Toll to the then Workplace Ombudsman several years ago, in relation to Toll’s former personal leave policies.
[64] Mr Clarke also considered that Mr Challis would not ever treat him fairly on account of Mr Clarke successfully assisting a colleague with a worker’s compensation claim.
Evidence at hearing
[65] Mr Clarke was shown a copy of the Toll Group Code of Practice and was asked to confirm that he had seen it. He denied that it had been issued to him while employed at Toll.
[66] Mr Clarke stated that it was Mr Torres who had first approached him outside of work. During January 2018, Mr Clarke had agreed for Mr Torres to park his car at Mr Clarke’s apartment in Brisbane City so that Mr Torres could attend a union solicitor on Creek Street in relation to a workplace injury that Mr Torres claimed to have sustained. 38
[67] Mr Clarke walked with Mr Torres from Mr Clarke’s apartment on Charlotte Street to the corner of Elizabeth Street and Creek Street, after which Mr Torres continued to 12 Creek Street, located near the corner of Charlotte Street and Creek Street. Mr Clarke guided Mr Torres through the grounds of St Stephen’s Cathedral. 39
Discussion of Cardinal George Pell
[68] While he and Mr Torres walked through the grounds of St Stephen’s Cathedral, Mr Torres disclosed to Mr Clarke that he is Catholic, and the two discussed Cardinal George Pell and the charges against him related to sexual assault and abuse. Mr Clarke stated that the context of all of his conversations with Mr Torres from that point in time onwards must be interpreted in the context of his and Mr Torres’ discussion regarding Cardinal Pell in January 2018. Mr Clarke stated: 40
“…he was a Catholic. I’m not a Catholic and I was stirring him up, and because he said, in his mind, George Pell was innocent. And I was saying there’s more and more evidence coming that George Pell is alleged to have done these things. So whenever I had a chance I’d say to him, ‘More of George Pell. More of George Pell’, and that’s where that fitted in.”
[69] Mr Clarke stated that all references to ‘molesting’ in his texts to Mr Torres were merely ‘tongue in cheek’ references to Cardinal Pell. For example, Mr Clarke stated that his text to Mr Torres of 2 May 2018 which included the words, “but not say old man who is mate molest you and hurt your back” was a comparison to allegations against Cardinal Pell and could only be properly interpreted in the context of his and Mr Torres’ conversation while walking through St Stephen’s Cathedral. Further, Mr Clarke stated that he had discussed with Mr Torres a book that he had read about Cardinal Pell, “Cardinal: The Rise and Fall of George Pell” by Louise Milligan. Mr Clarke stated that his message to Mr Torres of 13 May 2018, “…Next time I molest you will put my hand on your little balls and squeeze them till you cry…”, was a partial quote drawn from Milligan’s book.
[70] Mr Clarke stated that he and Mr Torres had also discussed Cardinal Pell in phone calls and in-person conversations after January 2018, and that the references to Cardinal Pell in the text messages which may otherwise appear to be disjointed or isolated were merely part of Mr Clarke’s and Mr Torres’ discussions about Cardinal Pell which had continued since January 2018. 41
Statutory declaration for Mr Torres’ ‘sickie’
[71] In cross-examination, Ms James drew Mr Clarke to the texts regarding Mr Torres’ ‘sickie’, extracted above at [47]. Ms James put to Mr Clarke that Mr Torres’ use of the term ‘sickie’ implied that he had intended to use a day of sick leave when he was not sick, and that Mr Clarke had asked Mr Torres not to tell anyone that he was going to sign a statutory declaration for Mr Torres when Mr Torres was not in fact sick. Mr Clarke disagreed that the term ‘sickie’ referred to taking sick leave without being sick. 42 Mr Clarke stated that he had asked Mr Torres not to tell anyone about the statutory declaration because very few people at the Karawatha worksite knew he was a Justice of the Peace and he “…didn’t want to be avalanched by people coming up tracking me down, ‘Can you sign this? Can you sign that?”43
[72] I asked Mr Clarke how he thought Mr Torres could have known on 24 March 2018, which was a Saturday, that he would be so unwell that he would be unable to attend work on Thursday? Mr Clarke stated that it was not unusual for employees to ask for a statutory declaration certifying a day of sick leave in advance so that the employee could organise and attend a medical appointment. Mr Clarke agreed that no indication was given from the text messages alone that Mr Torres had wanted to attend a medical appointment prior to Mr Clarke offering to sign a statutory declaration for him, although Mr Clarke disputed that any conclusion could be fairly made that he had known that Mr Torres intended to take a day of sick leave when he was not sick and had not arranged to attend a medical appointment. 44
[73] Mr Clarke confirmed that he had never provided a statutory declaration for Mr Torres, including after the text messages of 24 March 2018. 45
Mr Torres’ requests for Mr Clarke not to touch him
[74] Ms James put to Mr Clarke that he had not denied to Mr Challis and Mr Kenny that he had ‘squeezed Mr Torres’ bum at work’ after Mr Torres’ text of 13 May 2018 (extracted above at [53]). In cross-examination Mr Clarke denied that he had touched Mr Torres’ bum at work, but conceded that he had not expressly denied that to Mr Challis and Mr Kenny on 1 June 2018. 46 Mr Clarke denied that he had ‘molest[ed] [Mr Torres] and hurt [his] back’ as stated in the text message of 3:34pm on 2 May 2018 (extracted above at [49]). Mr Clarke stated that both of those text messages were sent in the context of Mr Clarke’s and Mr Torres’ discussions regarding Cardinal Pell.47
[75] Ms James referred Mr Clarke to the text messages including references to ‘rubbing’, starting from 5:41pm on 2 May 2018 (extracted above at [50]), and put to him that Mr Torres had asked Mr Clarke not to touch him by texting ‘no more rubbing’. Mr Clarke denied that he had ever ‘rubbed’ Mr Torres, and stated that references to ‘rubbing’ in text messages referred to Mr Torres having chiropractic and remedial massage therapy for his back injury, and not to Mr Clarke himself rubbing Mr Torres. 48
[76] Later in cross-examination, Ms James referred Mr Clarke to the transcript of his interview of 1 June 2018, during which Mr Kenny put to Mr Clarke that he had rubbed Mr Torres on his leg, his arm, his shoulder and his head, that he had pushed Mr Torres in the lower back from behind, once while at work, and once while in Mr Clarke’s apartment. Further it was put that he had squeezed Mr Torres’ backside. Mr Clarke denied all of those behaviours except for rubbing Mr Torres’ head. Mr Clarke stated that Mr Torres had first rubbed Mr Clarke’s head while in the lunchroom at the Karawatha site after Mr Clarke had a short haircut. Mr Clarke stated that he had twice similarly rubbed Mr Torres’ head after Mr Torres had a short haircut, but only after Mr Torres had rubbed Mr Clarke’s head on the first occasion. 49
Allegedly inappropriate sexual text messages
[77] Mr Clarke agreed with Ms James that from 31 January 2018 to 27 March 2018, there were no text messages between Mr Clarke and Mr Torres with inappropriate sexual content. Mr Clarke agreed that their text messages during that period could be characterised as banter between two work colleagues. 50
[78] Ms James took Mr Clarke to several different text messages he sent to Mr Torres, as follows:
• Messages from 10:22am to 10:35am on 28 March 2018, ending with “You make car sexy. You get close haircut and make Rob more sexy. Nice and close and send selfie. Maybe shave head, look more sexy like strong man, killer” (above at [48]);
• Message of 3:34pm on 2 May 2018 (above at [49]);
• Message of 7:21pm on 2 May 2018 (above at [50]);
• Messages from 10:40am to 12:31pm on 9 May 2018, ending with “You gotta stop being bitch n tell in advance of secret transactions for beautiful toy boy So fucken secret stuff here” (above at [51]);
• Messages from 12:00pm to 2:35pm on 13 May 2018, ending with “For fuck sake you little bitch. Stop trying to fleece me…not your milking cow…no moo moo. Next time I molest you will put my hand on your little balls and squeeze them till you cry…” (above at [53]).
[79] Ms James asked Mr Clarke in respect of each of the above text messages whether he thought that it was appropriate to communicate in that way to a work colleague. Mr Clarke stated that he did not consider any of his text messages to Mr Torres to be inappropriate in the context of his and Mr Torres’ relationship, the ordinary manner in which they spoke to each other and in the context of their discussions regarding Cardinal Pell which Mr Clarke alleged had continued since January 2018.
[80] Mr Clarke agreed with Ms James that he had no remorse for the text messages that he had sent to Mr Torres. I noted to Mr Clarke that following his text message to Mr Torres of 2:35pm on 13 May 2018 referring to ‘squeezing [Mr Torres’] balls’, the relationship between Mr Clarke and Mr Torres appeared to change and ceased to be ‘humorous’ as characterised by Mr Clarke. I asked Mr Clarke whether he understood that Mr Torres might have taken offence to his text message. Mr Clarke responded that he thought Mr Torres took more offence to Mr Clarke’s refusal to lend him money and confirmed his view that Mr Torres’ real motivation in complaining about Mr Clarke was because he had refused to lend money to Mr Torres. 51
Did Mr Clarke send inappropriate, offensive and vulgar text messages of a sexual nature to Mr Torres?
[255] During the hearing Mr Clarke asked questions in cross-examination of witnesses whether they attended particular musicals or theatrical productions where, in those productions there are some sexualised references. In effect, Mr Clarke was suggesting to the witnesses that they are not ‘worldly’, and I understood him to regard Mr Challis and Mr Kenny as prudes. It was Mr Clarke’s evidence that as long as he was OK with the language, tone and sexual references within, it was an acceptable communication to his work colleague.
[256] During his employment Mr Clarke had no regard to the boundaries it may be necessary to have with a work colleague. On his evidence Mr Torres was not a close friend; simply a work colleague. Mr Clarke agreed that such conduct would not be acceptable between a manager and subordinate employee.
[257] While it is true that many of the text messages from Mr Clarke to Mr Torres were sent by him on Wednesdays, being Mr Clarke’s day off work, they were received by Mr Torres during his workday.
[258] A question arises of whether there was a relevant nexus between Mr Clarke’s conduct outside of working hours and his employment with Toll and whether such conduct could be properly considered to be in breach of Toll’s workplace policies despite occurring out of hours.
[259] In Appellant v Respondent (1999) 89 IR 407, a Full Bench of the Australian Industrial Relations Commission (as this Commission was then known) stated, “…it is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees.” 116
[260] In Rose v Telstra Corporation Limited Print Q9292 (AIRC, Ross VP, 4 December 1998) (Rose), then Vice President Ross of the Australian Industrial Relations Commission considered previous decisions regarding out of hours conduct and distilled several indicia of when out of hours conduct may be a valid reason for dismissal, as follows: 117
“It is clear 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 the 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.”
[261] I have considered the text messages sent from Mr Clarke to Mr Torres in light of the above. The following text messages are the most concerning;
(a) Hope my little mate push really hard of pain you suffer cause of cunts at Toll but not say old man who is mate molest you n hurt your back. ..am very sorry I hurt you.. will be more careful when I molest you next time
(b) Oh my beautiful step son
Hard to explain to wife why I give $7g to new son.
She smell a rat n say what goes
Did secret loan to other work mate n not tell wife..money from secret account. .
What if u work Sat shifts
We will work it thru
(c) No
Listen u dumb cunt cum beautiful son…more money Sat four hr shift then Uber.. you heading for belting from new Dad”
(d) We still friends I hope
Please reassure me
Love toy boy very muchly
(e) Of fuck
My so sexy toy boy
Me at Narangba
Off to Radcliffe
(f) You gotta stop being bitch n tell in advance of secret transactions for beautiful toy boy
So fucken secret stuff here
(g) Mate
Toooo big an ask
Love toy boy very much
If wife found out would be divorce
Gotta ask tooth Dr for deal
(h) We still friends I hope
Please reassure me
Love toy boy very muchly
(i) For fuck sake you little bitch. Stop trying to fleece me…not your milking cow…no moo moo. Next time I molest you will put my hand on your little balls and squeeze them till you cry…
[262] While Mr Clarke might have thought the text messages were received by Mr Torres without offence, it is clear that Mr Torres did find offence, especially when he showed them to more sophisticated work colleagues in Mr Buckingham and Mr Lotomau. Mr Torres was certainly not an innocent player in the dialogue; it is my view that in the later exchanges he was playing off Mr Clarke, hoping Mr Clarke would advance him sums of money.
[263] Mr Clarke’s submission that Mr Torres found the text messaging acceptable until such time the request for further money was resisted by Mr Clarke might have some merit to it, but for the declarations love made by Mr Clarke on 13 May 2019, and then his aggressive text messaging within one hour. Mr Torres was entitled to complain to Toll of sexual harassment given the expressions of love made by Mr Clarke and the almost immediate threat of harm made by Mr Clarke.
[264] Mr Clarke attempted to explain to the Commission that because he had held discussions with Mr Torres in January 2018 regarding Cardinal Pell and the criminal matters Cardinal Pell was then facing, this should colour and help explain the text messages between himself and Mr Torres. I am satisfied that Mr Clarke did walk Mr Torres through the St Stephen’s Cathedral grounds. Mr Torres confirmed to Mr Kenny and Mr Challis during his second interview on 8 June 2018 that Mr Clarke had walked him to his union’s lawyer’s office on Creek Street. 118
[265] I accept Mr Clarke’s evidence that Cardinal Pell was discussed. Mr Clarke is clearly a well-read man, and aware of current affairs in the print media. Having listened to Mr Torres’ interviews, and his denial of having discussed Cardinal Pell, it would appear to me that he is not so well-read. I understand how, when asked by Mr Kenny if Cardinal Pell had been discussed, he said no. It is my view that discussion regarding Cardinal Pell appeared to ‘go over Mr Torres’ head’.
[266] Despite accepting Mr Clarke’s evidence regarding the discussion, I do not accept that many text messages sent in following months are somehow linked to a one-off discussion in or about January 2018. There was no ongoing text ‘banter’ between the men about molestation; it was all one way from Mr Clarke to Mr Torres. There was no ongoing ‘banter’ from Mr Clarke to Mr Torres linking the ‘squeezing of little balls’ with Cardinal Pell. The only time Mr Clarke sent this message to Mr Torres by text was in aggression, after realising he was, in all likelihood, being ‘milked’ by Mr Torres.
[267] Mr Clarke submitted that the language and references used in the text messages to Mr Torres are similar to how employees in his workplace speak to each other. Having had the benefit of the transcripts of the interviews with relevant employees, I do not accept that to be the case. Only two employees agreed that they and Mr Clarke might exchange rubbing fresh haircuts, and both agreed Mr Clarke planted a kiss on their cheek or head in a friendly manner. All but one of the relevant employees denied that the terms ‘bitch’ and ‘toyboy’ are used within the workplace. One employee, Employee 5 could not definitively recall the use of these terms, but thought they might occur between him and Mr Clarke.
[268] Many of the text messages sent by Mr Clarke to Mr Torres are inappropriate due to the sexual statements and declarations of love to a work colleague, where no such mutual relationship of love existed. Further, the reference to molestation is inappropriate. I am satisfied they breach the Workplace Behaviours Standard and the Inappropriate Behaviour in the Workplace Policy, and were not welcomed by Mr Torres. In the evidence before the Commission I cannot be satisfied that the Toll Code of Practice was issued to Mr Clarke. However Mr Clarke had been trained in the Workplace Behaviours Standard and the Inappropriate Behaviour in the Workplace Policy. I agree with Toll’s submission that it need not only be a breach of company policies and procedures to warrant a valid dismissal; if Toll did not have policies, the conduct could be regarded as inappropriate.
[269] I have had regard to Toll’s Inappropriate Behaviour in the Workplace Policy, and in particular the references within to an employee’s private life. I am satisfied there is a sufficient employment nexus to find that Toll had authority and a responsibility to investigate and make findings relevant to the text messages and general conduct between Mr Clarke and Mr Torres. I do not accept Mr Clarke’s submissions to the Commission and his opposition to Toll during its investigation that he was free to engage in such communications without the interference of Toll. As stated above, Mr Torres informed Toll that the text messages were not welcomed, and I find it was reasonable of Toll to conclude that the text messages were not welcomed. I am satisfied that Mr Clarke’s conduct meets all of the circumstances explained in Rose above (nothing that only one might need to be met), especially in light of Mr Clarke’s belligerent statements that it was none of Toll’s concern, and he would communicate with employees in private as he sees fit. I find that viewed objectively:
(a) his conduct is likely to cause serious damage to his relationship with Toll;
(b) his conduct damages Toll’s interests in that it had before it very serious matters and an aggrieved employee in Mr Torres; and
(c) his conduct is incompatible with his duty as an employee, including suggesting that he would assault Mr Torres.
[270] Toll was prepared to dismiss Mr Torres for his part in the exchanges; however he resigned before Toll had the opportunity to dismiss him.
[271] Being satisfied that Mr Clarke’s conduct breached the Workplace Behaviours Standard and the Inappropriate Behaviour in the Workplace Policy, that there is sufficient nexus to his employment, I determine that Mr Clarke’s conduct was inappropriate, warranting termination. I find that there was a valid reason for the dismissal.
Would Mr Clarke have re-offended were he merely warned about his conduct?
[272] It appears to me to be Mr Clarke’s evidence that even if he had been issued with the Toll Code of Practice, he still considered his texting to Mr Torres to constitute a private matter, with immunity from management’s interference, so long as Mr Clarke considered the communication to be appropriate.
[273] An employee of Mr Clarke’s age ought to know better than that. He has worked a considerable amount of time in a large organisation, and before that, he too would have been required to conduct himself appropriately in the workplace. Text messaging has been part of Australian technology for around 25 years; it is not a new medium of communication. One can’t text message a work colleague any message one likes if it breaches reasonable expectations of conduct. An employer is entitled to expect its employees will communicate within the workplace with appropriate levels of respect, civility, and good conscience not to harass, embarrass or intimidate. If employees then engage in text messaging outside of work, that is then an agreed matter between them. Equally, however, there are boundaries relevant to acceptable conduct which should not be crossed.
[274] Having regard to Mr Clarke’s responses during the interview with Mr Kenny and Mr Challis, together with his attacks on both men for even investigating the matter, it is my view that Mr Clarke would not have accepted a written warning for his conduct. This much is clear from his personal attack on both men, and the ferociousness of his submissions in these proceedings.
Did Mr Clarke lack integrity during the investigation of Mr Torres’ complaint?
[275] It is unsurprising that Mr Kenny and Mr Challis wanted to ask Mr Clarke questions in relation to the printed text messages by first showing Mr Clarke the messages and having him answer during the interview. It appears to me that Mr Kenny and Mr Challis wanted an element of surprise in the answers provided by Mr Clarke. He was not afforded time to review the printed messages, prepare a position and then answer questions.
[276] Where Mr Clarke originally denied certain things to Mr Challis and Mr Kenny, such as referring to Mr Torres as ‘bitch’ and ‘sexy’ or introducing the ‘stepson/stepdad’ terminology in to the text messages, this may be understandable on account of not having time between reviewing the printed messages and being asked questions. It would have been appropriate if Mr Clarke had been afforded, for example, 20 minutes or so to read the text messages before being asked questions.
[277] I consider any instance during the interview on 1 June 2018, where Mr Clarke’s responses to Mr Challis and Mr Kenny were later shown to be incorrect by reference to the text messages, resulted from errors in Mr Clarke’s recollection of relevant events or correspondence, rather than an attempt to deliberately mislead Mr Challis and Mr Kenny through dishonesty. However, following the interview, and having been afforded time and opportunity to review the printed text messages, Mr Clarke had all opportunity to answer the matters before him in the show cause letter.
[278] Relevant to the issue of the swearing of the statutory declaration, as per my consideration below, I find that Mr Clarke did lack integrity during the investigation.
Did Mr Clarke intend to assist Mr Torres to illegitimately use personal leave by offering to sign a statutory declaration?
[279] Mr Clarke was asked on a number of occasions why he responded as he did to Mr Torres’ text message below, sent on a Saturday:
Mr Torres (5:27pm): | I want to have a sicky on Thursday bout I might get in trouble |
Mr Clarke (5:30pm): | Thu okay We do a Stat Dec for you All legit n legal Don’t tell anyone okay |
[280] Mr Clarke’s response to Toll during its investigation and to the Commission lacks any form of credibility. Mr Torres’ own text message indicates that it is a ‘sickie’, and he doesn’t want to get into trouble. Mr Clarke promises to, in his capacity as a Justice of the Peace, help Mr Torres swear a statutory declaration. I have no hesitation in finding that Mr Clarke intended to allow Mr Torres to swear a statutory declaration before him that Mr Torres knew was not truthful in order to not attend for work on the following Thursday.
[281] I do not accept Mr Clarke’s evidence that where he stated, “Don’t tell anyone okay”, he meant for Mr Torres not to tell the wider group because he would be swamped with such requests. Mr Clarke’s evidence is that he had, for some period of time, run a battle with Toll management over being authorised to assist in statutory declarations for employees seeking personal leave. He had ‘won’ that battle and statutory declarations sworn before him were accepted by Toll.
[282] It is not clear from the evidence how wide a group knew of Mr Clarke’s capacity as a Justice of the Peace to assist with statutory declarations. It is not a necessary consideration. Mr Clarke’s own words in his text message make it abundantly clear that he was prepared to assist Mr Torres have a ‘sickie’ and prevent Mr Torres from getting into trouble.
[283] I find that Mr Clarke’s text message to Mr Torres above constitutes a valid reason for the dismissal. Further, I find Mr Clarke’s lack of integrity during Toll’s investigation into this issue to constitute a valid reason for the dismissal.
Mr Challis’ findings of inappropriate touching
[284] As described at [211] – [214], following the hearing, Toll submitted that Mr Challis was ‘wrong’ when giving evidence on the issue of the reasons for the dismissal. It is the most extraordinary thing for in-house counsel to later submit that Mr Challis was ‘wrong’ when he gave his own evidence, answering questions from the Commission.
[285] Mr Challis was the decision maker. He determined that the conduct warranted dismissal. It has been, for Toll, a most embarrassing moving feast as to whether the decision to terminate Mr Clarke’s employment did or did not include findings made by Toll that Mr Clarke inappropriately touched Mr Torres in and outside of the workplace.
[286] In answering questions from me, Mr Challis agreed that it did. It is not for in-house counsel to later suggest that it did not.
[287] I find that Mr Challis did, in fact, make findings that Mr Clarke inappropriately touched Mr Torres in and outside of the workplace.
[288] On the evidence before the Commission, I do not accept that Mr Challis could have properly determined that to be the case. The only evidence on this issue is the following text message:
“Hope my little mate push really hard of pain you suffer cause of cunts at Toll but not say old man who is mate molest you n hurt your back. ..am very sorry I hurt you.. will be more careful when I molest you next time”
[289] No thorough investigation occurred on this issue, and Mr Clarke rightly criticised Toll for not interviewing three employees who take meal breaks at a time when this alleged behaviour is said to have occurred. He also criticised Toll for not making prudent investigations into whether there was any CCTV footage available. Further, Mr Kenny’s evidence is that he considered that Mr Torres’ had ‘lied’ when interviewed in relation to other matters.
[290] Having found that one of the reasons for the dismissal was Mr Challis’ conclusion that Mr Clarke had inappropriately touched Mr Torres in and outside of the workplace, I do not accept that was a valid reason for the dismissal.
s.387(b) - Whether the person was notified of that reason
[291] There is much to be said for the somewhat sliding reasons offered by Toll as to the reasons for the dismissal. I accept that Mr Clarke was notified that the reasons for his dismissal included the inappropriate, offensive and vulgar text messages of a sexual nature, lacking integrity during the investigation, and offering to help Mr Torres falsely swear a statutory declaration.
[292] I find that Mr Clarke was not informed that one of the reasons for his dismissal included Mr Challis’ finding that he considered that Mr Clarke had inappropriately touched Mr Torres in and out of the workplace.
s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
[293] Mr Clarke was afforded opportunity to respond to the concerns raised by Toll regarding his conduct. In Mr Clarke’s show cause response he referenced there being insufficient information regarding any claim of inappropriate touching of Mr Torres, and stated that it was a joke between himself and Mr Torres.
s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[294] I accept that Mr Clarke was offered the opportunity to have a support person at the interview of 1 June 2018. The first and second show cause letters of 29 June 2018 and 2 July 2018 both included an invitation for Mr Clarke to bring a support person with him to the proposed meeting to discuss Mr Clarke’s response. There is no evidence before me that Mr Clarke sought to bring a support person with him to any discussion relating to his dismissal and was denied that opportunity.
[295] This criterion is a neutral consideration.
s.387(e) - Was there a warning of unsatisfactory work performance before dismissal
[296] I accept Toll’s submissions that Mr Clarke was dismissed for misconduct, not unsatisfactory work performance.
[297] This criterion is a neutral consideration.
s.387(f) - Whether Toll’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated resource management specialist impacted on the procedures followed
[298] Toll is a large employer with a dedicated human resources function.
[299] Whilst I accept that there were procedural deficiencies relevant to Mr Challis’ findings of inappropriate touching in and outside of the workplace, when regard is had for the other, valid reasons for the dismissal, the procedural deficiencies are not significant enough to be visited upon the respondent so as to contribute to a finding that the dismissal was unfair.
[300] The size of Toll and the availability of dedicated human resources management specialists is a neutral consideration in determining whether the termination of Mr Clarke’s employment was harsh, unjust or unreasonable.
s.387(h) - Other matters
[301] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. I consider the following matters to be relevant to the determination of whether the dismissal of Mr Clarke was harsh, unjust or unreasonable.
[302] I do not accept Mr Clarke’s submission that the audio recording of his interview of 1 June 2018 has been doctored. I accept Mr Kenny’s evidence that he downloaded the recording onto the contracted company’s website, and it was professionally transcribed and returned a few days later. I consider Mr Clarke’s submission to be fanciful.
[303] I have had regard to the vitriol used by Mr Clarke to Mr Kenny and Mr Challis during the investigation of his conduct. I consider it to be unacceptable and highly inappropriate. It is one thing for an employee to respond with criticism to an employer’s investigation of a matter related to their employment; it is another to make offensive, personal criticisms of the investigators and decision makers.
[304] I have had regard to Mr Clarke’s lengthy period of service and his otherwise satisfactory employment history. I understand and appreciate the significant impact the dismissal had on him.
Conclusion
[305] Having considered each of the matters specified in s.387 of the Act, I am not satisfied that Mr Clarke’s dismissal was harsh, unjust or unreasonable. The dismissal of Mr Clarke cannot fairly be characterised as a disproportionate response to his conduct.
[306] I find that Mr Clarke’s dismissal was not unfair and the application for unfair dismissal is dismissed. I Order accordingly.
COMMISSIONER
Appearances:
Mr Anthony Clarke, Applicant;
Mrs F James, Senior Manager Employee Relations, Toll
Mrs K de Lange Savage, General Manager Employee Relations, Toll
Hearing details:
Brisbane, 12 October 2018
Brisbane, 22 October 2018
Final written submissions:
Applicant’s closing submissions in reply, 10 November 2018
Respondent’s closing submissions, 6 November 2018
Printed by authority of the Commonwealth Government Printer
<PR704487>
1 Fair Work Act 2009 s.394(2)(a).
2 [2011] HCA 2, [33] – [34]; referring to Sengupta v Holmes [2002] EWCA Civ 1104, [11]; and to Leeson v General Council of Medical Education and Registration (1889) 43 Ch D 366 at 385, see also at 390 per Fry LJ.
3 Transcript of proceedings, 12 October 2018, PN79 – PN80.
4 [2015] FWC 5853.
5 Ibid at [12]-[19].
6 (2000) 205 CLR 337.
7 Ibid at 348.
8 Re Medicaments and Related Classes of Goods (No 2) [2000] EWCA Civ 350; [2001] 1 WLR 700 at [37] – [39].
9 Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at 344.
10 Groves M, The Rule Against Bias [2009] Monash University Law Research Series UMonashLRS 10, p. 4-5 citing Sun v Minister for Immigration and Ethic Affairs [1997] FCA 1488; (1997) 151 ALR 505 at 551-552.
11 Ibid at p. 4-5.
12 [2005] QSC 243.
13 Ibid at [69] and [107].
14 Ibid at [92].
15 Ibid at [88].
16 Ibid at [159].
17 Ibid at [34] quoting Mahon v Air New Zealand [1984] 1 AC 808.
18 Ibid at [44] citing Council of the Municipality of Burwood v Harvey (1995) LGERA 389, 395.
19 Ibid at [46] citing Carruthers v Connolly [1998] 1 Qd R 339,371.
20 Groves M, The Rule Against Bias, op cit at 1.
21 Allesch v Maunz (2000) 203 CLR 172 at 184,per Kirby J.
22 Ibid
23 Ibid at 185,citing Vestry of St James and St John, Clerkenwell v Feary (1890) 24 QBD 703 at 709 per Lord Coleridge CJ; Sydney Corporation v Harris (1912) 14 CLR 1 at 15.
24 Loretta Woolston v The Uniting Church in Australia Property Trust (Q.) t/a Blue Care Bli Bli Aged Care Facility[2016] FWCFB 278 at [10].
25 (2004) 134 IR 379.
26 Johnson v Johnson (2000) 201 CLR 488, [11]; Livesey v NSW Bar Association (1983) 151 CLR 288, 293-294; Vakautu v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41.
27 Re JRL; Ex parte CJL (1986) 161 CLR 342, 352.
28 Statement of Mr James Challis, 4 October 2018, R5, JC-02.
29 Ibid, JC-02.
30 Statement of Mr Anthony Clarke, 7 September 2019, A1, [18].
31 Statement of Mr James Challis, 4 October 2018, R5, JC-04.
32 Ibid, JC-05.
33 Ibid, JC-07.
34 Ibid, [5].
35 Ibid, JC-08.
36 Ibid, JC-09.
37 Statement of Mr Anthony Clarke, 7 September 2018, pg 4.
38 PN529 – PN535.
39 PN1298 – PN1303.
40 PN676.
41 PN707 – PN715.
42 PN575 – PN604.
43 PN602.
44 PN1479 – PN1516.
45 PN1493.
46 PN624 – PN627.
47 PN637; PN1030.
48 PN717 – PN730; PN735 – PN753; PN1036 – PN1037.
49 PN1178 – PN1202; Transcript of interview, Mr Anthony Clarke, 1 June 2018.
50 PN757 – PN772.
51 PN1039 – PN1059.
52 PN818.
53 Transcript of interview, Mr Anthony Clarke, 1 June 2018, p 17.
54 Submissions in Reply of Mr Anthony Clarke, 10 October 2018, pg 4.
55 PN1074.
56 PN1080 – PN1123.
57 PN919; PN928 – PN929.
58 PN1340 – PN1350.
59 PN926.
60 PN1149 – PN1171.
61 PN1210 – PN1211.
62 PN1215.
63 PN1317 – PN1329.
64 PN1409.
65 PN1426.
66 PN370.
67 PN1653.
68 PN1874 – PN1878.
69 PN1696.
70 PN1655.
71 PN1792 – PN1796.
72 PN1856 – PN1858.
73 PN1939 – PN1945.
74 PN1960.
75 PN2117.
76 Statement of Mr James Challis, 4 October 2018, [16]
77 Ibid, [16].
78 Ibid, [35].
79 PN2222 – PN2225.
80 PN2259 – PN2262.
81 PN2536 – PN2538.
82 PN2585 – PN2588.
83 PN2619.
84 PN2642.
85 Outline of submissions for the Respondent, 6 October 2018, [18].
86 PN2648 – PN2733.
87 (1995) 185 CLR 410, [465].
88 Sayer v Melsteel[2011] FWAFB 7498 at [20].
89 Submissions of Mr Anthony Clarke, 10 October 2018.
90 Applicant’s closing submissions, 28 October 2018, pg 2.
91 PN2130 – PN2131.
92 Applicant’s closing submissions in Reply, 10 November 2018, [48].
93 Applicant’s closing submissions in Reply, 10 November 2018, pg 2.
94 Applicant’s closing submissions in Reply, 10 November 2018, pg 2.
95 Applicant’s closing submissions in Reply, 10 November 2018, [80].
96 Applicant’s closing submissions, 28 October 2018, pg 1.
97 Ibid, pg 3.
98 Submissions of Mr Anthony Clarke, 10 October 2018.
99 Applicant’s closing submissions in Reply, 10 November 2018, [77].
100 Submissions of Mr Anthony Clarke, 10 October 2018; Applicant’s closing submissions in Reply, 10 November 2018, [102].
101 Applicant’s closing submissions in Reply, 10 November 2018, pg 1.
102 Applicant’s closing submissions in Reply, 10 November 2018, [24] – [25].
103 Fair Work Act 2009 s.392(2)(a).
104 Fair Work Act 2009 s.392(2)(b).
105 Fair Work Act 2009 s.392(2)(d).
106 Respondent’s closing submissions, 6 November 2018, [118].
107 Selvachandran v Petron Plastic Pty Ltd (1996) 62 IR 371, 373.
108 Ibid.
109 PN546.
110 Toll Workplace Behaviours Standard, 1 March 2013, p 8.
111 Toll Inappropriate Behaviour in the Workplace Policy, July 2013, p 5.
112 Respondent’s closing submissions, 6 November 2018, [52].
113 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
114 Respondent’s closing submissions, 6 November 2018, [122](c).
115 Respondent’s closing submissions, 6 November 2018, [109].
116 Appellant v Respondent Print R1221 (AIRCFB, MacBean SDP, Duncan SDP, Deegan C, 1 February 1999), [(1999) 89 IR 407 at p. 416]
117 Rose v Telstra Corporation Limited Print Q9292 (AIRC, Ross VP, 4 December 1998).
118 Transcript of interview, Mr Robert Torres, 8 June 2018, p 3 – 4.
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