Mr Emil Ee v Endeavour Energy Pty Ltd
[2016] FWC 186
•10 MARCH 2016
| [2016] FWC 186 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Emil Ee
v
Endeavour Energy Pty Ltd
(U2015/10775)
DEPUTY PRESIDENT BULL | SYDNEY, 10 MARCH 2016 |
Application for relief from unfair dismissal, independent investigation, placed on paid leave. Show cause letter issued, unfit to respond to show cause letter, terminated with notice paid in lieu.
[1] Mr Emil Ee (the applicant) has applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to the termination of his employment as a Contestable Works Officer with Endeavour Energy Pty Ltd (the respondent/Endeavour).
[2] Mr Ee’s application named “Endeavour Energy” as his employer, however, the employer’s response names “Endeavour Energy Pty Ltd” as the employer. Pursuant to s.586(a) of the Act, the application is amended to reflect the correct identity of the employer.
[3] Mr Ee’s application at 2.1 states that the remedy sought is “reinstatement/ redundancy”. However during the proceedings, it was made clear that Mr Ee was only seeking reinstatement and that the matter could not otherwise be resolved 1. During these proceedings, Mr Ee was unemployed. Mr Ee provided evidence of his efforts to date in seeking alternate employment.
[4] Mr Ee represented himself and Ms Michele Jones - Senior Industrial Relations Officer for the respondent appeared on behalf of Endeavour.
Background
[5] Mr Ee had been employed on a full time basis since March 2004, and had been engaged in a number of positions, including that of Contestable Works Officer which he occupied at the time of his dismissal on 17 July 2015.
[6] Mr Ee was dismissed on the basis of serious misconduct and failure to comply with Endeavour Energy’s Code of Conduct, (the Code) which sets out the standards of behaviour expected from employees. Mr Ee’s employment was terminated with four weeks’ notice paid in lieu. 2
[7] The parties tendered and referred to a number of written warnings that ultimately led to Mr Ee’s termination which are referred to below.
[8] On 16 January 2014, Mr Ee received correspondence from the Chief Operating Officer advising of his obligations under the Code in respect of Endeavour’s electronic communications systems.
[9] On 19 September 2014, a First and Final Letter of Warning was sent to Mr Ee signed by Mr Bruce Rowley the General Manager People & Services 3 which stated:
“I refer to a matter that was brought to management’s attention resulting in a number of allegations being put to you involving alleged serious misconduct. The specific allegations of serious misconduct involved inappropriate behaviour you displayed towards another Endeavour Energy employee.
Following an investigation that has taken place into this matter, the Company is satisfied that you have breached a number of the Company’s Code of Conduct (sic) that relate to this issue.
Specifically, it has been revealed that you have been involved in workplace behaviour that may be considered bullying and harassment. This included, calling another Endeavour Energy employee smelly, and making derogatory comments toward the same employee. Further, encouraging another Endeavour Energy employee to go and smell the shirt of a work colleague. Despite repeated requests to stop and words to the effect to “grow up”, this behaviour continued.
Despite you not believing there to be ill effects of this type of behaviour, your work colleague took great offence.
As a result of your actions, this letter will serve as a First and Final Letter of Warning. Any further breaches of discipline of this or similar behaviour will result in further disciplinary action and may result in the termination of your employment.
Due to the seriousness of this matter and the real potential for harm, you will also be demoted one grade to EO3511 effective immediately. This will be for a period of 12 months, during which time you will not be eligible for promotion into another position.
… ”
[10] Mr Ee refused to sign the correspondence and advised he wished to submit a letter in reply, it was agreed that the demotion be delayed until the reply was received. Mr Ee was also required to attend Code of Conduct training.
[11] On 4 December 2014, further correspondence signed by the General Manager People & Services was sent to Mr Ee 4. The correspondence referred to email communications sent by Mr Ee to the respondent’s industrial relations branch. The correspondence stated:
“ …
The consistency and context of the emails you continue to send are of a serious concern. You are directed to cease sending emails of this nature as your behaviour could be deemed as bullying and harassment.”
[12] Mr Ee attended the Code of Conduct training on 9 December 2014.
[13] On 20 January 2015 5 Mr Ee was sent further correspondence from the General Manager People & Services which alleged two instances of serious misconduct:
“1. You disclosed and discussed details of a confidential workplace investigation with other staff members; and
2. Subsequent to being issued a First and Final Letter of Warning, you have continued to engage in behaviour that may be considered a breach of the Code of Conduct.”
[14] Mr Ee was advised that the matter had been referred to an external consultant Mr Mark Loves, a senior consultant from IAB 6 for investigation. Mr Ee was placed on “paid special leave” pending the outcome of the investigation and asked not to discuss the matter with unrelated persons and advised that the investigation was confidential.
[15] On 16 April 2015, correspondence titled “Notice to Show Cause: Potential Termination of Employment” 7 was forwarded to Mr Ee and in part reads:
“I refer to the recent allegations of serious misconduct issued to you on 20 January 2015, further detailed on 14 February 2015, and the subsequent investigations of these allegations.
An investigator was engaged to complete a review of the investigation into bullying and harassment allegations against you in 2014. The investigator also undertook an investigation into alleged misconduct against you. ……….”
Allegation | Finding |
1. Making verbal remarks regarding Mr Chavan’s personal hygiene, referring to him as “smelly” in discussions with other Contestable Works Officers. | Substantiated |
2. Gesturing by placing your hand to your nose to indicate that Mr Chavan was emitting an unpleasant odour | Substantiated |
3. Encouraging Mr Dean Wu to approach Mr Chavan to smell him. | Substantiated |
4. Referring to Mr Chavan by the name “Mumbai”, a reference to Mr Chavan’s Indian origins | Substantiated |
5. Telling other Contestable Works Officers that you saw Mr Chavan naked on the balcony of his home with his wife and son | Substantiated |
6. Taking photographs of Mr Chavan using your mobile telephone whilst Mr Chavan was down on the floor mopping up milk/tea spillage near his work desk | Substantiated |
The investigator determined that the six substantiated particulars could indeed be interpreted as repeated and unreasonable bullying behaviour, irrespective of whether the actions and comments were delivered under the guise of friendly office banter or not, that you had engaged in misconduct, and that the matters were appropriately treated by Endeavour Energy as disciplinary matters.
As you are aware, you were issued with a first and final written warning.
2015 investigation into alleged misconduct
As advised to you on 20 January 2015 and 14 February 2015, it is alleged that you engaged in misconduct as follows:
Allegation |
1. That between December 2014 and January 2015, you breached the Endeavour Energy Code of Conduct by disclosing and discussing details of a confidential workplace investigation with other staff members and persons outside the Company who should not be privy to that information. Specifically: Copying your mother and wife into company confidential emails relating to the investigation Discussing the investigation and its outcomes with other staff attached to the Hoxton Park Depot, including Mr Dean Wu, Ms Mala Manjulan Jayasekara and Mr Eugene Lorenzo |
2. That subsequent to being issued a First and Final Letter of Warning on the 19 September 2014, you continued to engage in behaviour that is considered a breach of the Endeavour Energy Code of Conduct and Acceptable Usage for Email, Intranet and Internet Policy; to wit using email to harass and coerce (bully) Endeavour Energy Officers in pursuit of a personal grievance as follows: Between 26 September 2014 and 13 January 2015 you emailed various Endeavour Energy officers alleging the incompetence of the Human Resources Department, and targeting specific staff members including Mr Ron Sneesby, Mr Mike Taylor, Mr Han Phan, and Mr Bruce Rowley. |
……During the investigation, the company has reviewed all relevant material, including witness statements and the evidence you provided in your interview on 20 February 2015.
On the basis of the above, I must inform you that the Company is now considering terminating your employment. You are therefore directed to show cause why this course of action should not be pursued.
Your written response outlining the reasons why your employment should not be terminated should be forwarded to Fiona Blaine, HR Business Partner (email address supplied) by close of business 22 April 2015……….”
[16] Mr Ee was subsequently dismissed on 17 July 2015. The letter of dismissal was signed by the Chief Executive Officer and states 8:
“I am writing in relation to the Show Cause letter that was issued to you on 16 April 2015.
In that letter, we reiterated the findings of the investigation into bullying and harassment allegations from 2014, as detailed below:
Allegation | Finding |
1. Making verbal remarks regarding Mr Chavan’s personal hygiene, referring to him as “smelly” in discussions with other Contestable Works Officers. | Substantiated |
2. Gesturing by placing your hand to your nose to indicate that Mr Chavan was emitting an unpleasant odour | Substantiated |
3. Encouraging Mr Dean Wu to approach Mr Chavan to smell him. | Substantiated |
4. Referring to Mr Chavan by the name “Mumbai”, a reference to Mr Chavan’s Indian origins | Substantiated |
5. Telling other Contestable Works Officers that you saw Mr Chavan naked on the balcony of his home with his wife and son | Substantiated |
6. Taking photographs of Mr Chavan using your mobile telephone whilst Mr Chavan was down on the floor mopping up milk/tea spillage near his work desk | Substantiated |
The letter also reiterated the subsequent allegations of Serious Misconduct detailed below:
Allegation | Finding |
1. That between December 2014 and January 2015, you breached the Endeavour Energy Code of Conduct by disclosing and discussing details of a confidential workplace investigation with other staff members and persons outside the Company who should not be privy to that information. | Substantiated |
2. That subsequent to being issued a First and Final Letter of Warning on the 19 September 2014, you continued to engage in behaviour that is considered a breach of the Endeavour Energy Code of Conduct and Acceptable Usage of Email, Intranet and Internet Policy, to wit, using email to harass and coerce (bully) Endeavour Energy Officers in pursuit of a personal grievance | Substantiated |
Two investigations and a review of the initial investigation, determined that you engaged in serious misconduct and breached the Endeavour Energy Code of Conduct and Acceptable usage for Email, Intranet and Internet Policy.
The Show Cause letter confirmed that allegations of serious misconduct had been substantiated, and asked you to provide any information you wanted the Company to take into account, in determining the disciplinary action to be taken.
In the Show Cause letter we asked you to provide a response by 22 April 2015. Since issuing you with the Show Cause letter, the Company has given you a number of extensions of time in which to respond. In total, you received extensions of almost 3 months in which to respond. On 8 July 2015, you were advised that if you did not contact Jude Gibson, Acting Industrial Relations Manager or provide a response to the Show Cause letter by 13 July 2015, the Company would proceed to determine the appropriate disciplinary action with the information currently available.
You did not contact Jude Gibson, Acting Industrial Relations Manager or provide a response to the Show Cause letter.
Emil, you have previously been issued with a First and Final Letter of Warning for misconduct and you were made aware that any further misconduct may result in the termination of your employment. Due to the seriousness of your behaviour, you were also demoted one grade for a period of 12 months and were required to attend Code of Conduct training. Despite this, you wilfully continued to engage in serious misconduct. Accordingly, the decision has been made to terminate your employment.
Your last day of employment will be today, 17 July 2015. You will receive a final payment that includes 4 weeks’ payment in lieu of notice and any accrued leave entitlements as at that date.
………”
Submissions and Evidence of the applicant, Mr Emil Ee
[17] Mr Ee gave evidence in support of his application and was cross-examined. Mr Ee stated that during his employment with Endeavour he had an unblemished employment record up until his First and Final Warning Letter of 19 September 2014 (Warning Letter), and subsequent to this, he was dismissed from his employment on 17 July 2015. 9
[18] The outline of Mr Ee’s argument of his unfair dismissal claim is twofold:
1) Mr Ee denies the serious misconduct allegations, although Mr Ee does not deny the disclosing and discussing of details regarding the investigation into his alleged serious misconduct or emailing various Endeavour officers alleging the incompetence of the Human Resources Department, and targeting specific staff members.
2) Mr Ee submits that in the period between December 2014 and January 2015, he was undiagnosed and untreated for post-traumatic stress disorder and depression (referred to as his mental illness) 10 which affected his state of mind and which attributed to the ‘inappropriate emails’ he distributed11. It was submitted that Mr Ee’s mental illness hindered his ability “to make properly balanced and evaluated decisions”12.
Mr Ee’s response to the allegations of serious misconduct
[19] Mr Ee referred to an email dated 3 November 2014 13, from a Mr Mike Taylor who at the time was a Senior Industrial Relations Officer for the respondent titled “Grievance Response – First and Final Letter of Warning”. Mr Taylor’s email follows on from the First and Final Letter of Warning of 19 September 2014 and Mr Ee’s response of 26 September 2014.14 The relevant sections of Mr Taylor’s email are extracted below:
“…
In the investigation it was substantiated that you repeatedly behaved unreasonably towards Mr Chavan on a number of occasions, specific examples of this are:
a. Calling Mr Chavan “Mumbai” in reference to his Indian heritage,
b. Advising Mr Chavan that he cannot progress in the organisation due to his skin colour,
c. Telling Mr Chavan that he and Mr Sharma are cousins, both Mr Sharma and Mr Chavan are of Indian heritage,
d. Taking photos of Mr Chavan cleaning up spilt milk without his consent and then showing these photos to other employees at work,
e. Taking a photo of Mr Chavan on the balcony of his personal residence whilst he was shirtless holding his child and then bringing this photograph into discussions with employees whilst at work, and;
f. As outlined in your First and Final Letter of Warning making comments about Mr Chavan’s body odour to other employees and on one occasion encouraging another employee to participate in this behaviour by going to smell the shirt of Mr Chavan……..”
[20] Mr Ee admitted in his evidence that he did call Mr Chavan “Mumbai” and referred to Mr Chavan and Mr Sharma as cousins. However, Mr Ee argued that the appropriate context was that it happened some three years ago 15 and was a part of general office banter between himself and Mr Chavan, with Mr Chavan often calling Mr Ee “Malay”.
[21] Mr Ee denies that he told Mr Chavan that he could not progress in the organisation due to his skin colour or that he took a photo of Mr Chavan shirtless and took it to work. 16
Mental illness
[22] With respect to Endeavour’s allegation of Mr Ee breaching confidentiality by copying his mother and wife into company confidential emails relating to the investigation, Mr Ee stated that no one was listening to him and that he needed to be heard. Mr Ee emphasised that this was not done to intentionally breach confidentiality, but rather as a means of ‘documenting’ his mental health, so that his family would be made aware of his medical condition 17.
[23] The 3 November 2014, response email from Mr Taylor was said to be the ‘trigger’ which exacerbated Mr Ee’s mental health/condition, as the contents of that email contained allegations which were said by Mr Ee 18 to be untrue. Mr Ee further stated that the email was the reason why he ‘lashed out’ in his subsequent emails (in reference to Endeavour’s allegation of harassing emails he sent to various Endeavour Officers).19
[24] Mr Ee, during cross examination acknowledged that he continued to send further emails copying in a number of Endeavour staff after being warned on 4 December 2014, that this was a breach of Endeavour’s email policy and the Code. Mr Ee acknowledged that the emails sent to Endeavour staff were inappropriate. 20
[25] Whilst Mr Ee agreed that continuing to send the emails was inappropriate, he stated that he “could not control” this 21 as he was undiagnosed with post-traumatic stress disorder and depression.22 Mr Ee referred to the emails as being inconsistent with his previous conduct, and that prior to 2014 his employment record was unblemished.
[26] On this basis, Mr Ee submits that Endeavour had no valid reason to terminate his employment as it did not consider his mental illness as a mitigating factor. 23 Mr Ee tendered a number of documents in support of his medical condition24:
Medical Report from Dr Graham George (Psychiatrist) dated 3 February 2015.
[27] This report was requested by Endeavour. Under the heading “Psychiatric Diagnosis” it states:
“I believe at the time when he was demoted and his pay was reduced, was that of acute stress disorder”
[28] The opinion states that Me Ee could return to work, although it would be better if he worked in a different area to that of the employee he has difficulties with.
Letter from Jignasha Khatri (Clinical Psychologist) dated 8 May 2015
[29] Ms Khatri states she has been involved in the psychological treatment of Mr Ee since 17 April 2015. The letter also states that the symptoms of Acute Stress Disorder cause significant impairment in Mr Ee’s functioning and his ability to respond to any correspondence with clarity; and that it would be unlikely that he would be able to respond to any correspondence “with clarity before four weeks.”
Dr Mah correspondence dated 14 April 2015, 27 June 2015 and 22 August 2015.
[30] Dr Mah states he had been seeing Mr Ee since April 2015. On 14 April 2015 he provided written advice that Mr Ee had attended Westmead hospital and presented with “depressive symptoms and suicidal ideation”. He was discharged and asked to see his General Practitioner for additional follow up and referrals.
[31] On 27 June 2015 Dr Mah refers to treating Mr Ee for depression and anxiety, and that he is receiving psychological treatments as well as medications. Further that Mr Ee was not yet at the point of being able to “effectively, fairly and comprehensively complete his show cause statement.”
[32] On 22 August 2015 Dr Mah states that Mr Ee is continuing to receive treatment for depression and anxiety. Further that Mr Ee “has been very unwell since the end of last year and was very unlikely very unwell at the time of the incident referred to in his unfair dismissal case, therefore implying that his mental state should have been taken into consideration.”
[33] Mr Ee also sought to rely on the medical documentation outlined above to provide reasons regarding the delayed response to the 16 April 2015 Show Cause Letter which required him to respond initially by 22 April 2015. This date was extended by Endeavour on a number of occasions to a final date of 13 July 2015.
[34] Mr Ee did not call any witnesses to support his claim of unfair dismissal; the authors of the medical correspondence tendered by Mr Ee did not give any evidence.
Submissions and Evidence of the respondent
[35] Ms Jones - Senior Industrial Relations Officer of Endeavour while representing the respondent also gave evidence and was subject to cross examination by Mr Ee 25.
[36] Endeavour also adduced evidence from:
● Mr Han Phan - Contestable Works Manager; and
● Mr Jude Gibson - Industrial Relations Manager
[37] Endeavour submitted that Mr Ee was terminated with a valid reason being his serious breaches of the Code and Bullying and Harassment Procedures.
[38] The respondent relied on its Code stating that employees of Endeavour are required to comply with the Code which sets out the standards of behaviour expected. Specifically, the Code provides that employees are to:
● Treat other employees with respect and be sensitive to their rights
● Avoid and prevent any form of bullying, intimidation or harassment toward a fellow employee
● Be accountable for their own actions
● Protect the confidentiality of all information. 26
[39] On 12 April 2014, Mr Vishal Chavan filed a written complaint to Mr Han Phan - Contestable Works Manager relating to his treatment by Mr Ee and another employee, which was alleged to be bullying or racially motivated. 27
[40] An investigation into the complaint was conducted by Endeavour and six allegations involving breaches of the Code were substantiated.
[41] As a result a First and Final Warning letter dated 19 September 2014 was issued to Mr Ee and another employee identified in the complaint. As part of the respondent’s disciplinary action, Mr Ee was demoted one grade for a 12 month period beginning December 2014 28 and he was required to attend Code of Conduct training.
[42] On 5 and 26 September 2014, Mr Ee sent emails to Mr Ron Sneesby (HR business partner), Mr Bruce Rowley (General Manager, People and Services) and Mr Scott Ryan (General Manager, Network Operations) criticising his direct manager (Mr Han Phan) and claiming that the investigation was flawed 29.
[43] Subsequently, Mr Mike Taylor (Senior Industrial Relations Officer at the time) reviewed the disciplinary outcome and found that the disciplinary action taken was appropriate and advised Mr Ee via email on 3 November 2014 30.
[44] Between 3 and 5 November 2014, Mr Ee sent a series of emails 31 to Mr Taylor disputing the review outcome. As a result of Mr Ee’s emails, a letter from the General Manager People and Services was issued to Mr Ee on 4 December 2014 directing Mr Ee to stop sending any further emails32. The letter referred to above concluded with the following:
“I remind you that in accordance with the First and Final Letter of Warning issued to you on 19 September 2014, any further breaches of this or similar behaviour will result in further disciplinary action and may result in the termination of your employment.
Emil, I trust you will reflect on this experience and fully engage in the training program that is being provided to you.”
[45] Between 8 December 2014 and 21 January 2015, Mr Ee sent a further 16 ‘harassing’ emails to several of Endeavour’s employees and to his mother and wife 33. It is submitted by Endeavour that the email dated 23 December 2014 which was sent to his wife and mother attached various emails containing confidential and “detailed client information regarding a development”, was a breach of his obligation of confidentiality34
[46] On 7 January 2015, Endeavour engaged an independent investigator to investigate Mr Ee’s conduct regarding the sending of numerous emails between December 2014 and January 2015 35, in relation to potential breaches of the Code of Conduct36and the Acceptable Usage for Email, Intranet and Internet Policy37. The investigation was to also review the previous investigation regarding the complaint made against Mr Ee with respect to ‘bullying’ behaviour.
[47] Mr Ee was stood down from his employment with pay from 20 January 2015, pending the outcome of the investigation and was requested to attend an independent psychiatric medical examination on 28 January 2015 38. Mr Ee and a number of other employees were interviewed for the purposes of the investigation.
[48] The investigation concluded on 13 April 2015, and Mr Ee was invited to attend a meeting with the HR Business partner to discuss the findings. Mr Ee was unable to attend the meeting and requested the findings be sent to him via post.
[49] Subsequently, a show cause letter dated 16 April 2015 39 was issued to Mr Ee which outlined the findings of the investigation being that he had breached the Code of Conduct and the email policy. That letter requested Mr Ee to provide reasons as to why his employment should not be terminated by 22 April 2015.
[50] On 20 April 2015, Endeavour granted Mr Ee an extension to respond to the show cause letter by 29 April 2015. On 28 April 2015, Mr Ee advised the HR Business Partner by email that he was unwell and would not be able to respond by the due date.
[51] On 30 April 2015, Endeavour wrote to Mr Ee requesting that he provide full details of his medical condition and how such a condition impacts on his ability to respond to the 16 April 2015 show cause letter 40.
[52] A medical certificate was provided by Mr Ee on 8 May 2015, stating that he was unable to respond to the show cause letter for 4 weeks 41.
[53] On 15 May 2015, Endeavour wrote to Mr Ee advising that a further extension of the time to respond would be granted until 12 June 2015 and if no response was received; Endeavour would determine the appropriate disciplinary action on the information it had available.
[54] On 21 May 2015 42 Mr Ee sent an email to Endeavour stating he was invoking the dispute resolution procedure of the enterprise agreement and filed a grievance complaint. Mr Ee stated he was unable to complete a show cause response due to his mental health. On 9 June 2015 he completed a further grievance form. A meeting to discuss his grievances was scheduled for 15 June 2015 and subsequently rescheduled to 24 June 2015 at Mr Ee’s request. At the 24 June 2015 meeting which lasted for over two hours, Mr Ee attended with a support person from the Electrical Trades Union43 and met with Mr Jude Gibson; Acting Manager Industrial Relations.
[55] On 29 June 2015 a response to Mr Ee’s grievances was provided by Mr Gibson. On the basis that no response to the Show Cause letter had yet been received, Mr Gibson requested that Mr Ee provide a response by 7 July 2015, and to provide a medicate certificate to cover his absence from work.
[56] Later on the same day, Mr Gibson received medical advice from a Dr Mah stating that Mr Ee would not be in a position to respond to the Show Cause letter for at least a month.
[57] On 8 July 2015, Mr Gibson corresponded to Mr Ee, detailing the three extensions of time granted to him in which to respond to the Show Cause letter. It was stated that no response had been received following the expiry of the last extension date of 7 July 2015. Mr Gibson referred to the dispute resolution meeting to discuss Mr Ee’s grievances held on 24 June where in Mr Gibson’s opinion; Mr Ee was capable of discussing his grievances by responding to questions and providing feedback.
[58] Mr Ee was requested to provide a written response to the Show Cause letter by 13 July 2015 or to contact Mr Gibson to arrange a meeting to verbally provide any information he would like Endeavour to take into consideration. Mr Ee was also invited to bring a support person.
[59] On 17 July 2015; a letter of termination was sent to Mr Ee on the basis that he had engaged in serious misconduct as stipulated in the Show Cause letter and that he had previously been issued with a First and Final Letter of Warning. The termination letter referred to no response having been received to the Show Cause letter for a period of three months.
[60] Mr Ee had actually responded via email on 9 July 2015 but the email was not seen by Endeavour’s management until after the termination letter was sent. Mr Ee’s email stated that he was not well and that he had not read the Show Cause letter in its entirety. He had further medical appointments and whilst he wanted to provide a response, he did not do so as he feared it would “end up being volatile like my previous e-mails to Endeavour.”
[61] Endeavour Energy submit that the breaches by the applicant, which resulted in Mr Ee’s dismissal were due to the applicant 44:
● Disclosing and discussing details of a confidential workplace investigation with other staff members and persons outside Endeavour.
● Using email communication to harass and coerce Endeavour officers.
● Sending repeated harassment emails, despite having been issued with a First and Final warning on 19 September 2014 in relation to bullying.
Evidence of Mr Han Phan
[62] Mr Han Phan is the Contestable Works Manager for Endeavour and had been Mr Ee’s manager since 2006.
[63] Mr Phan stated that he received a complaint from Mr Chavan made against Mr Ee and Mr Wu (another Endeavour employee) for bullying which had allegedly been going on for some time. Mr Phan decided to try and resolve the matter between the employees involved in the first instance by conducting a meeting with Mr Ee and Mr Wu on 14 and 15 April 2014 45.
[64] During this meeting, Mr Ee admitted to Mr Phan that he should not have made sarcastic remarks about Mr Chavan’s body odour and that he would apologise to him. After the meeting, Mr Phan overheard Mr Ee comment on Mr Chavan’s “smell” to another employee. During cross examination by Mr Ee, Mr Phan admitted that he did not hear the entire conversation 46 and it was put by Mr Ee that context was missing from Mr Phan’s interpretation of what he heard.
[65] On 16 April 2014, Mr Chavan advised Mr Phan that Mr Ee had continued to comment on his “smell” and raised another two complaints, which was when the matter was referred to the Human Resources Business Partner.
[66] Mr Phan stated that he took issue with Mr Ee circulating an email to “all his staff” regarding his management after having spoken to Mr Ee about a client’s project 47 as this was both disrespectful and belittling.
Evidence of Mr Jude Gibson
[67] Mr Jude Gibson is the Industrial Relations Manager within the Health, Safety and Human Resources division of Endeavour. The decision to terminate Mr Ee’s employment was a joint decision of Mr Gibson together with Ms Karen Curtin, Manager of Human Resources Operations. 48
[68] Mr Gibson’s evidence was that he had been advised by a number of his staff, including managers and senior leadership team of concerns regarding Mr Ee’s behaviour. The concerns involved emails 49 of a ‘disturbing nature’ being sent to a number of Endeavour staff as well as external people.50
[69] Mr Gibson referred to an email from Mr Ee to Mr Howard dated 5 January 2015 51 where Mr Ee makes reference to Mr Wu, who was also the subject of Mr Chavan’s initial ‘racial bullying’ complaints. Mr Gibson stated that Mr Wu had similar allegations and similar disciplinary outcomes to that of Mr Ee. However, in Mr Wu’s instance, he did not raise any further issues following the substantiated findings and is still working within the organisation.52
[70] In reference to an email sent from Mr Ee to a Mr Rod Howard, Chief Operating Officer, dated 6 January 2015 53 Mr Gibson stated that Mr Ee’s email referred to an earlier incident involving Mr Chavan which had already been addressed and resolved, with an outcome from the disciplinary process.54 However, it was clear from Mr Ee’s email that he did not accept the outcome.
[71] Mr Gibson noted that he was not aware of any medical condition that Mr Ee was experiencing, he did recall that Mr Ee had indicated he had a few things that were concerning, but there was not a formal diagnosis of his medical condition. 55
[72] Mr Gibson stated that it was clear from the chain of email correspondences from Mr Ee that he was unable to accept the outcome of the initial allegations.
[73] Endeavour was concerned about the emails being sent by Mr Ee and described the emails as ‘disturbing’. 56 Some staff who were singled out in Mr Ee’s emails found the emails to be ‘bullying’ and ‘intimidating’. Mr Taylor, the former industrial relations officer had advised Mr Gibson that he did not want to deal with Mr Ee anymore as he felt as though Mr Ee was ‘attacking’ him.57
[74] Some of Mr Ee’s emails were also sent to Endeavour’s CEO as well as to the executive leadership team. Endeavour had given a direction to Mr Ee not to breach the Code of Conduct and he had ignored this direction. 58 Mr Gibson stated that the “serious offensive nature” of the emails59 and the continued sending of the emails despite having been warned not to do so was considered serious misconduct60.
[75] The content of the emails demonstrate a deliberate and concerted effort to discredit particular Endeavour employees.
[76] A sample of the comments in emails 61 sent by Mr Ee subsequent to his written warning on 4 December 2014, to cease sending emails that may be seen as bullying and harassment include the following comments in emails to Endeavour staff:
● Email to Mr Ron Sneesby of 8 December 2014 accusing him of bullying and harassment:
“I request you stop bullying and harassing me please…. (is this North Korea or Australia?)”
● Email to Anthony Kavaliauskas and Nicole Hyde copied to Mr Sneesby of 9 December 2014 requesting not to deal with Mr Sneesby:
“… the sound of his voice gave me shivers…he has no regard for my mental health and well-being …. absolute appalling; who do you think you are? He can’t even get meeting dates correct.”
● Email to Mike Taylor dated 10 December 2014 and copied to others:
“I didn’t think HR would reduce my pay until they explain why they need to resort to using false allegations against me?” … I am including my Mum and Wife in the e-mail.”
● Email to Nicole Hyde dated 10 December 2014
“HR needs to resort to untrue allegations in order to make a case against me? Is that ethical? ……I refuse to let people think they can unjustly get the better of me”
● Email to Han Pan copied to Contestable Works Team dated 22 December 2014
“… It makes zero sense that I need to be told by you (of all people), that my communication skills require improving. … How can someone with zero experience on these matters coach me? ... You have been here eight years now? You are the Direct Line Manager and you haven’t even certified one design … Instead of your safety observations, I suggest you sit with us and get some actual experience on what we do.”
● Email to Rod Howard and copied to others of 5 January 2015:
“Let me reiterate that the allegation below is untrue. … What actually transpired has been distorted and twisted and HR did not carry out due diligence to verify such claims. … What must I do to be heard? … Better yet, I rather harm myself. I rather take my own life and through my wife and family expose the incompetence and treachery of this organisation; starting with a Coronial Inquiry/Inquest into my demise. … Endeavour is still publically owned. The people of NSW would like to know the extent of your support for Bruce Rowley. … And before anyone misses the point, I’m not going to harm myself”
[77] On 7 January 2015 as a result of Mr Ee’s litany of emails, Endeavour commissioned an external investigation from IAB into Mr Ee’s behaviour. 62 As part of the investigation, IAB interviewed a number of people, including Mr Ee. The focus of the investigation was whether Mr Ee had breached the Code of Conduct, and the Acceptable Usage of Email, and the Intranet Policy. Mr Ee was interviewed by an investigator from IAB on 20 February 201563.
[78] The IAB investigation was completed in March 2015 and found that the allegations were substantiated, in particular:
1. Between December 2014 and January 2015, Mr Ee breached the Endeavour Code of Conduct by disclosing and discussing details of a confidential workplace investigation with other staff members and persons outside the company, who should not be privy to that information.
2. That subsequent to being issued a First and Final Letter of Warning on 19 September 2014, Mr Ee continued to engage in behaviour that is considered a breach of Endeavour’s Code of Conduct, Acceptable Usage of Email, and the Intranet Policy; to wit using email to harass and coerce (bully) Endeavour Officers in pursuit of a personal grievance. 64
[79] The findings of the investigation which were contained in the Show Cause letter were to be discussed with Mr Ee on 14 April 2015. 65 However, Mr Ee was unwell and unable to attend a meeting and would not be able to respond. Medical certificates were provided by Mr Ee.66 Mr Ee was sent the Show Cause letter on 17 April 2015.
[80] On 30 April 2015, Mr Ee was requested to provide details of his medical condition and an expected time that Endeavour would receive a response to the Show Cause letter. In response to this, on 8 May 2015, Mr Ee provided another medical certificate stating that he would not be able to respond for another four weeks, as such; an extension was granted until 12 June 2015. 67
[81] On 21 May 2015, Mr Ee lodged a grievance against Mr Bruce Rowley. 68 On 9 June 2015, a further grievance was filed against Mr Han Phan and Mr Mike Taylor, stating that Mr Ee was denied procedural fairness by his manager and that Mr Taylor the then Senior Industrial Relations Officer, had made false and inaccurate allegations against him. A meeting to discuss the grievances was convened on 24 June 2015, where Mr Ee attended with Mr Brad Curry, a union official from the Electrical Trades Union.69
[82] Mr Gibson stated that at this meeting, Mr Ee discussed his grievances and responded in a reasonable manner. 70
[83] In reference to the medical condition relied upon by Mr Ee, which Mr Ee states affected his ability to respond to the Show Cause letter and affected his behaviour which contributed to him sending the emails, constituted misconduct, Mr Gibson stated that Endeavour relied upon the Independent Medical Report of Dr George dated 3 February 2015. 71 In particular, Mr Gibson referred to his observation that Mr Ee did not appear depressed or exhibit any psychotic phenomena at the time of his examination on 28 January 2015.
[84] Mr Gibson referred to the opinion that “acute stress disorder is a self-limiting disorder” 72. Mr Gibson went on to further state that the Report clearly indicates that Mr Ee has the ability to return to work; therefore he should have the ability to respond to the Show Cause letter.
[85] Under cross examination Mr Gibson acknowledged that Mr Ee; by email dated 9 July 2015 had in fact eventually responded to the Show Cause letter. Mr Gibson stated that he did not receive the email until after he had sent the letter of termination. 73
Relevant Legislation
Preliminary matters for determination
[86] Section 396 of the Act requires that certain matters must be determined before the merits of an unfair dismissal application may be considered. There was no contest between the parties about any of these matters on the basis that:
(a) Mr Ee lodged his application within the period required as per s.394(2);
(b) Mr Ee was a person protected from unfair dismissal;
(c) Endeavour Energy was not a "small business employer" as defined in s.23 of the Act, so that the Small Business Fair Dismissal Code did not apply; and
(d) the termination of Mr Ee's employment was not a case of genuine redundancy.
[87] The criteria the Commission must take into account when assessing whether a dismissal was harsh, unjust or unreasonable is set out in s.387 of the Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Whether there was a valid reason (including its effect on the safety and welfare of other employees)
[88] The expression “harsh, unjust or unreasonable” was considered in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd 74
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[89] Mr Ee was terminated for serious misconduct, said to be Mr Ee’s behaviour of sending repeated ‘harassing’ emails to a number of the respondent’s employees, despite being formally warned not to. In conjunction with this conduct Mr Ee copied details of a confidential workplace investigation to other staff members and persons outside Endeavour who should not be privy to that information.
[90] This conduct followed a first and final written warning given on 19 September 2014. However the following month and until his suspension from work on paid leave (20 January 2015) pending the independent investigation outcome; Mr Ee’s behaviour did not improve. The nature of Mr Ee’s emails over this period were said to be of a ‘harassing’ ‘bullying’ and ‘coercive’ nature with a blatant disregard of the explicit direction to cease such conduct. Endeavour also concluded that in sending the emails to members of his family, Mr Ee breached his confidentiality and privacy obligations.
[91] In summary, the following events are relevant to establishing whether there was valid reason for the dismissal of Mr Ee:
● 16 January 2014 Mr Ee was advised in writing of his obligations under the Code of Conduct .
● 19 September 2014 a first and final warning was issued to Mr Ee regarding bullying and harassment.
● 4 December 2014 Mr Ee was given a written letter regarding the sending of emails deemed as bullying and harassment.
● 9 December 2014 Code of Conduct training undertaken by Mr Ee.
● Between 8 December 2014 and 21 January 2015, Me Ee sent further emails to Endeavour staff including confidential information, copied to family members.
[92] I am satisfied that the factual basis of the allegations has been established on the evidence before me, that being Endeavour did give direction to Mr Ee to cease sending further emails relating to a confidential investigation and that he in fact continued to do so. This included Mr Ee sending some of those emails to his family members. The question is therefore whether the conduct of Mr Ee which I have found to have occurred constituted a valid reason or reasons for his dismissal.
[93] Section 387(a) requires the Commission to take into account whether the valid reason related to the person’s capacity or conduct affects the safety and welfare of other employees.
[94] The evidence adduced by Endeavour indicates that a number of employees raised concerns with regard to Mr Ee’s continued sending of emails. Mr Gibson in his evidence stated:
“The company was concerned because these emails were disturbing. For some staff the way he singled out staff in some of his emails, they were of the nature of, you know, bullying and intimidating. My own staff, Mr Taylor, referred a couple of Mr Ee's emails to me and said he didn't want to deal with this employee anymore because clearly Mr Ee is attacking Mr Taylor. And some of his emails were going obviously to the CEO, to the executive leadership team, and the company was beginning to be very concerned because we gave Mr Ee a lawful direction not to breach the code of conduct, and he, from our point view, blatantly refused our direction.” 75
[95] In Ziogas v Telstra Corporation Ltd 76 the Full Bench held that the deliberate but unauthorised disclosure by an employee of confidential information of the employer is a well-recognised category of misconduct constituting a valid reason for termination of employment.”
[96] Mr Ee when defending his conduct before the independent investigator stated in an email dated 27 February 2015 that after the First and Final warning letter he “needed to break the rules in order to keep it an even playing field”. Knowing that he was “breaking the rules” does not assist Mr Ee’s later defence when terminated that he was unable to make proper decisions due to his illness.
[97] Endeavour has demonstrated that it had warned Mr Ee not to disclose and discuss the details of the confidential workplace investigation with other staff members and persons outside Endeavour who should not be privy to that information. Endeavour had also advised Mr Ee that such continued behaviour was considered a breach of the Endeavour Energy Code of Conduct and Acceptable Usage of Email, Intranet and Internet Policy.
[98] Mr Ee had only recently received a First and Final written warning regarding inappropriate behaviour towards his work colleagues. While it is clear that Mr Ee did not accept the warning as being justified, it does not excuse his on-going and relentless attempts to defend his position by sending emails raising allegations over the workplace investigation to particular Endeavour staff and copying in other persons.
[99] Despite being told in writing on 4 December 2014 to cease the sending of emails that could be deemed bullying and harassing, this pattern of conduct continued unabated with a series of 16 emails between 8 December 2014 and 21 January 2015. 77 Although I do not accept Mr Gibson’s categorisation of the emails as being of “a serious offensive nature”78 , the conduct of Mr Ee and actions taken by Endeavour recounted above, in my view demonstrates that there was a valid reason for his dismissal. Mr Ee relied on his medical condition to exculpate his conduct. I am unable to accept that Mr Ee’s medical diagnosis was a sufficient or satisfactory explanation for his conduct. The reasons for this are further discussed below.
Whether the person was notified of that reason
[100] Mr Ee was informed of the reason relied upon by Endeavour in the Show Cause letter of 16 April 2015. Mr Ee’s dismissal did not occur until some three months later.
Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[101] Mr Ee was given the opportunity to respond to the reasons relied upon by Endeavour to terminate his employment. Mr Ee had been issued with a Show Cause letter with a specific response time frame. The time frame was extended on three occasions based on Mr Ee not being in a fit state to competently respond. When Mr Ee finally responded via email on 9 July 2015 (although not seen by Mr Gibson) he advised that he was unwell and had not read the show cause letter entirely however if he wrote what he felt, it would end up being ‘volatile’ like his previous emails to Endeavour.
[102] As stated in Jetstar Airways Pty Limited v Ms Monique Neetson-Lemkes 79, the "opportunity" referred to in s.387(c) must be a fair and adequate opportunity, being one which in a practical common sense way ensures that the employee is treated fairly.
[103] The Show Cause letter afforded an opportunity for Mr Ee to respond. Taking into account the subsequent extensions of time granted to file his response and despite not being able to avail himself of that opportunity to its fullest extent, I am satisfied that Mr Ee was given an ‘opportunity’ to respond to the reasons for his termination before the decision to terminate him was made.
Any unreasonable refusal by the employer to allow the employee to have a support person present to assist at any discussions relating to dismissal
[104] Mr Ee did not attend any meetings to discuss his dismissal. He was never refused the ability to engage a support person. Mr Ee attended Endeavour’s offices on 20 February 2015 to participate in the IAB investigation; he had with him a Lisa Dao. On 9 June 2015 he participated in a grievance meeting which he had initiated, he had with him Mr Brad Curry, a union official from the Electrical Trades Union as his support person.
Warnings regarding unsatisfactory performance
[105] Mr Ee had been advised on 16 January 2014, in writing of his obligations under the Code. On 19 September 2014 a first and final warning was issued regarding bullying and harassment and on 4 December 2014 he was provided with a written warning regarding the sending of emails deemed as bullying and harassment by Endeavour. On 9 December 2014 he undertook Code of Conduct training.
Impact of the size of the respondent on procedures followed
[106] The size of the respondent’s enterprise did not impact on the procedures followed by Endeavour in effecting the dismissal. Endeavour is a large company and has a dedicated human resources department. The procedures followed by Endeavour in affecting Mr Ee’s termination were well documented, with an independent investigation conducted in determining the legitimacy of the reasons relied on for his dismissal.
Absence of dedicated human resources management specialist/expertise on procedures followed
[107] This consideration is not relevant in the present matter.
Other relevant matters
[108] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.
[109] Mr Ee, in his evidence conceded that the emails he sent were inappropriate and that he recognised that he should not have discussed the investigation with other persons, let alone copying in his mother and wife into the emails he sent. Mr Ee contends that his conduct was as a result of his post-traumatic stress disorder and depression, and the failure of Endeavour to take into account his medical condition was unreasonable. 80.
[110] Mr Ee has provided copies of medical certificates and advice confirming he is suffering from a mental illness and that he was unwell since the end of 2014, although at the time he had not been diagnosed with any illness.
[111] Mr Ee submitted that his mental illness was intrinsically linked to the conduct that resulted in his dismissal.
[112] As stated previously, the Commission only has before it written medical advice which describes Mr Ee’s diagnosed medical condition and on occasion proffers a retrospective opinion of Mr Ee’s medical condition on or about the time of the offending conduct. 81 Much of the medical advice refers to why Mr Ee could not respond to his Show Cause letter within the stipulated time frame.
[113] Dr Mah’s opinion of 22 August 2015, a month after Mr Ee’s dismissal refers to having commenced treating Mr Ee in April 2015 and providing an opinion of the ‘very likely’ condition of Mr Ee at the time of ‘the incident referenced to in his unfair dismissal case’. What this opinion actually relates to is difficult to determine, it has an element of being self-serving for Mr Ee’s purposes. 82 The opinion states that as Dr Mah continues to see Mr Ee and that hopefully he can assist Mr Ee’s gradual return to work.83 This opinion is in contrast with that of Dr George who six months earlier was of the opinion that Mr Ee had the capacity to return to his pre injury duties with on-going treatment recommended.
[114] More pointedly, there is no medical evidence before the Commission that directly links the behaviour of Mr Ee which was relied on by Endeavour to terminate his employment to his diagnosed illness. Mr Ee was able to participate and engage in the IAB investigation interview in February 2015, initiate workplace grievances in May and June 2015 and partake in the prosecution of his grievances with Endeavour management, while in accordance with the medical advice tendered, he was during this period, suffering from the same condition he now relies on to explain his conduct in late 2014.
[115] I have taken into consideration the explanation offered by Mr Ee for his conduct and I am not persuaded that it provides a satisfactory or complete defence to why the conduct occurred. This is especially so, when having regard to Mr Ee’s apparent ability to undertake other tasks which require an ability to act in a rational and logical manner, including the advocacy of his unfair dismissal claim and raising grievances, while at the same time suffering from his mental illness.
[116] Mr Ee was on notice regarding his conduct arising from the first and final warning. He had received a lawful and reasonable instruction to cease his conduct in respect of the emails he was sending and he attended Endeavour’s Code of Conduct training, but was unable to modify his behaviour to the standard required.
[117] I have taken into consideration Mr Ee’s length of service and previous conduct record but I am unable to conclude that the dismissal was harsh, unjust or unreasonable. The decision taken by Endeavour followed the conclusion of an independent investigation in which Mr Ee participated. Mr Ee had the benefit of a six month period of paid leave while the investigation was undertaken and his response to the proposed termination of his employment was sought. From 20 January 2015 to 17 July 2015, Mr Ee received a further 4 weeks’ pay in lieu of notice. The medical certificate of Dr Mah of 22 August 2015 indicated that Mr Ee was not fit to return to work as of that date.
[118] Section 387 of the Act requires the Commission to consider all the listed factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and that no factor alone will necessarily be determinative. In this matter, Mr Ee has demonstrated conduct in a number of respects which collectively satisfy me that Endeavour did have a valid reason to terminate his employment. Namely, this was a combination of Mr Ee’s inappropriate emails, which were distributed to a large number of the respondent’s staff, despite being instructed not to do so and attending Code of Conduct training. As well as Mr Ee forwarding correspondence to external people (his mother and wife) which Endeavour deemed confidential.
[119] For all the reasons discussed above, I do not find that Mr Ee’s dismissal was unfair, the application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Emil Ee on his own behalf
Ms Michele Jones, Senior Industrial Relations Officer for the respondent
Hearing details:
Sydney
2015
24 November
9 December
1 PN21 Efforts by the Commission prior to the hearing to conciliate the matter were unsuccessful.
2 Attachment MJ2 to Exhibit R1
3 Exhibit A4 bundle
4 Exhibit A4 bundle
5 Ibid
6 See Internal Audit Bureau Act 1992 (NSW)
7 Exhibit A4 bundle
8 Exhibit A4 bundle
9 Para 1 of Exhibit A1
10 PN144 and PN169
11 PN169
12 Applicant’s Outline of Submissions
13 Exhibit A3 bundle
14 Exhibit JG4b
15 PN189 to PN191
16 PN181to PN184
17 PN174
18 PN166
19 Ibid
20 PN294 to PN297
21 PN296
22 PN171
23 Exhibit A1
24 Exhibit A2 bundle
25 Regarding a ‘marked up version’ of the respondent’s outline of submissions written by Ms Jones
26 See Endeavour’s Outline of Submissions Exhibit R1 at [6]
27 Paragraph 8 of Exhibit R1, see also Exhibit R5
28 Ibid at Paragraph 10
29 Attachments JG4(a) and JG4(b) of Exhibit R3
30 Attachment JG5 of Exhibit R3
31 Exhibit A3 Bundle of Emails
32 Attachment JG6 of Exhibit R3
33 At paragraph 16 of Exhibit R1
34 Ibid at paragraph 17
35 Paragraph 19 of Exhibit R1
36 Attachment JG30 of Exhibit R3
37 Attachment JG28 of Exhibit R3
38 Paragraph 22 of Exhibit R1
39 Exhibit A4 bundle
40 Attachment JG16 of Exhibit R3
41 Exhibit A2 bundle
42 Mr Gibson’s Witness Statement Exhibit R3 at JG22
43 Mr Gibson’s Witness Statement Exhibit R3 at (36)
44 Ibid at paragraph 42 and attachment JG9 of Exhibit R3
45 Exhibit R2 and PN589
46 PN681
47 Attachment HP2 to Exhibit R2. Paragraphs 12-13 of R2
48 PN1005
49 Attachment JG9 to Exhibit R3
50 PN731
51 Email 33 of attachment JG10 from Exhibit R3 (titled “My life”)
52 PN760
53 Email 34 of Attachment JG9 to Exhibit R3
54 PN756
55 PN757
56 PN763
57 Most of the relevant emails to Mr Taylor were sent prior to the 4 December 2014 warning letter
58 Ibid
59 Refers to the emails in attachment JG9 of Exhibit R3
60 PN1011
61 JG9 of Exhibit R3
62 PN764 to PN765
63 PN765 and see also page 4 of Exhibit R5
64 Exhibit R5 IAB Report page 4
65 PN883
66 Attachment JG18 of Exhibit R3
67 Attachment JG21 of Exhibit R3
68 Attachment JG22 to Ex R3
69 PN889
70 PN892 to PN895
71 See PN918 and attachment JG15 of Exhibit R3
72 See “summary and opinion” of JG 15 of Exhibit R3
73 PN1223
74 (1995) 185 CLR 410 at p 465-6
75 PN763
76 [2010] FWAFB 2664
77 Witness Statement of Jude Gibson Exhibit R3at [16]
78 PN1011
79 [2013] FWCFB 9075
80 Page 5 of Exhibit A1
81 See Dr George’s comments at page 5 of his 3 February 2015 opinion and Dr Mah’s comments of 22 August 2015.
82 The incidents relied on by Endeavour include the first and final warning and a further warning regarding improper email use and breach of confidentiality occurring in 2014
83 The work Dr Mah is referring to is unknown as Mr Ee had been dismissed the month before from his position with Endeavour
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