[2021] FWC 1595

FAIR WORK COMMISSION

DECISION

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

Mr Jason Ives
v
Link-Up (Qld) Aboriginal Corporation
(U2020/9167)

COMMISSIONER HUNT

BRISBANE, 24 MARCH 2021

Application for unfair dismissal remedy – terminated for misconduct – repeated workplace bullying – seriousness of valid reason weighed against other considerations – dismissal not harsh, unjust or unreasonable – application dismissed.

[1] On 3 July 2020, Mr Jason Ives made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Link-Up (Qld) Aboriginal Corporation (Link-Up/the Respondent). Mr Ives originally sought reinstatement, however at the conclusion of the hearing of the application he informed the Commission that he no longer sought reinstatement.

[2] No jurisdictional objections were made to the application by the Respondent.

[3] There being no jurisdictional objections to determine, I am satisfied that Mr Ives is a person protected from unfair dismissal pursuant to s.382 of the Act. The application was made within the 21-day statutory time limit. The only matter that I must determine is whether Mr Ives’ dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act, and if so, what remedy he should be awarded.

Hearing

[4] The matter was listed for hearing in-person on 22 September 2020. Mr Ives appeared and gave evidence. Ms T. Malamoo, Mr Ives’ cousin attended as his support person. The Respondent was represented by Mr Robert Reed of Counsel, having been granted leave pursuant to s.596(2)(a) of the Act. The following persons appeared and gave evidence:

• Ms Donna Ives, former Manager of the Multimedia Unit of the Respondent, sister of Mr Ives;

• Ms Patricia Thompson, CEO;

• Ms Anne Struckett, Redress Manager; and

• Mr Ken Murphy, Chair of the Board of Directors.

[5] Ms Struckett is the only non-Indigenous person of the above witnesses who gave evidence in the proceedings.

[6] Ms Cheryl Page, former employee of the Respondent and Mr Andrew Cummins, non-employee and friend of Mr Ives provided witness statements in support of Mr Ives but were not required for cross-examination.

Background

[7] Link-Up is a non-profit organisation which assists vulnerable members of the Indigenous community to reunite with family and country where removal has occurred because of forced removal, fostering, adoption or institutionalisation. Link-Up also assists its clients in dealing with the trauma and distress of those removals, and conduct associated with them. Link-Up is a registered charity.

[8] Mr Ives commenced employment with the Respondent on 23 April 2015. Prior to his dismissal, Mr Ives acted in the position of Service Delivery Manager, South, from 8 July 2019 until his formal appointment to the position on 16 April 2020. Mr Ives’ employment was covered by the Social, Community, Home Care & Disability Services Award 2010 (the Award).

[9] For the period January 2020 to April 2020, various allegations of misconduct towards fellow employee, Ms Anne Struckett were made against Mr Ives. Ms Struckett commenced with the Respondent on 25 November 2019 as a Redress Counsellor in the Redress Team, and she was appointed to the role of Redress Manager on 18 March 2020. The Redress Team is a small team of three counsellors which supports and counsels clients of Link-Up who have suffered historical childhood sexual abuse in institutions, and assists those clients to access compensation under the National Redress Scheme.

[10] Mr Ives was stood down with full pay on 5 May 2020 and was issued with a stand down letter. The letter informed him that the stand down was with immediate effect until further notice, and for the reason that the Respondent had “received serious complaints of alleged workplace bullying and possible sexual harassment”. The letter provided that an independent workplace investigation would take place regarding these allegations.

[11] Ms Thompson determined, after speaking with Mr Murphy that advice from Community Management Solutions (CMS), an employment law consultancy should be sought. Ms Thompson emailed Mr Craig Pollard of CMS and requested he conduct an investigation. Mr Pollard conducted interviews of relevant individuals on 6 May 2020.

[12] On 12 May 2020, Mr Pollard sent the following email to Ms Thompson:

“Dear Pat,

As requested I have conducted an investigation into the allegations of bullying and harassment made against Jason Ives by Ms Anne Strucket (sic).

The investigation consisted of interviewing employees named by Ms Strucket who, she said, were present during some instances of the alleged conduct and three other persons whose names arose during discussions in addition to Mr Jason Ives.

The persons interviewed were:

Ms Donna Ives (sister of Jason Ives)
Cheryl Page
Anne Strucket (Complainant)
Sloane Stallan
Anne Garrett
Pat Thompson and
Jason Ives

The outcome of the investigation is a finding that the allegations of bullying are sustained, however we do not recommend the termination of Mr Ives employment as the nature of the bullying is at the lower end of the spectrum, and a final warning would be the most appropriate sanction.

We have concluded that despite Mr Ives protestations that he was only “joking” with Ms Strucket and that the “thought they got along very well” prior to his complaint, he was in fact seeking to disparage and demonstrate disrespect towards Ms Strucket. Mr Ives stated that he calls “a few” people “Gumby” but he could only name one other staff member with whom he used such a “nickname”. He considered the use of the term “Gumby” as one of a “fun” nickname association with a “Claymation” childrens show from the 70s. this other person was named as Sloane Stallan. Mr Stallan confirmed that Mr Ives did call him “Gumby” but he said no other names were used. No other employee who was interviewed could recollect hearing Mr Ives use such a term for Mr Stallan, or any other co-worker other than Ms Strucket. Furthermore, no other employee agreed that it was usual for Mr Ives to address any employee by anything other than their name.

Mr Ives said that he didn’t think he used the word “Simple” but he probably did use the word “Dumbo” as well as “Gumby” but these were meant as “Banter. Mr Ives said he considered that he and Ms Srucket had a “friendly bantering” relationship as she would also converse in a “playful” way from time to time. An example he gave was that Ms Strucket would ask him “What issues do you have, do you need counselling?” as a joke. Mr Ives also said that he thought Ms Strucket “could hold her own” and this method of communication was a way of getting along.

This “Bantering” relationship however does not explain the specific examples cited in the complaint relating to demanding Ms Strucket acknowledge him and give him information regarding her whereabouts and duties. It is also difficult to reconcile the fact that no other employee, even his sister, could recall Mr Ives addressing anyone as “Gumby” or “Dumbo”. All persons interviewed (other than the complainant and Mr Stallan) were of the view that such terms were derogatory and that Mr Ives would not treat people that way.

Ms Payne specifically stated that she considered Mr Ives to be a very respectful person and she had never heard Mr Ives use the words “Gumby”, “Dumbo”, or “Simple”. Ms Ives stated that she could not recall Mr Ives using the terms “Simple” or “Dumbo”. Ms Ives did not however that she could not recall anything prior to her absence due to illness as it was “all a blur” prior to that date.

Ms Pat Thompson confirmed that she was present in the conference room when Mr Ives looked at Ms Strucket and said “I don’t like you”. Ms Thompson supported the recollection of Ms Strucket in this regard but noted that after he said it, everyone was “shocked” but then “burst out laughing”. Ms Thompson noted that it was very uncomfortable. No other witness could recall this incident, however, given that the other named witnesses stated they could not even remember a meeting taking place, we have considered this to be more of an unwillingness to support the complainant rather than a genuine lack of recollection.

Ms Garret has given information which also contradicts the evidence provided by Mr Ives. She stated that she has never heard Mr Ives use anything other than a person’s name when addressing them. She stated that Mr Stallan and Mr Ives get along very well and that Mr Stallan calls Mr Ives “Bub” but she could not recall Mr Ives calling Mr Stallan anything other than “Sloane”. Ms Garrett also stated that she has a “bantering” relationship with Mr Ives, but he has never addressed her as anything other than her name. Ms Garrett has said that she has noticed that Mr Ives has recently been using derogatory “throw away” lines regarding the Redress Team. Examples included – “That’s the Redress Team’s job, let them do it”, and “They (Redress Team) think they run the joint”.

The above combines to paint a picture of Mr Ives being resentful towards the Redress Team and one of its key employees, Ms Anne Strucket. This has resulted in Mr Ives acting in a derogatory and demeaning way towards Ms Strucket which he now seeks to “shrug off” as “banter” and “jokes”.

We do not propose to reproduce the relevant sections of the Fair Work Act 2009 relating to Bullying, however it is our view that the behaviour specified above meets the test of being “Bullying” and appropriate action should be taken to ensure that such behaviour ceases.”

[13] Ms Thompson’s evidence is that having received the above email, she was not satisfied. She stated that it was not clear to her if all relevant allegations made by Ms Struckett had been put to Mr Ives, and she noted that there were no witness statements or recordings of the interviews.

[14] On 13 May 2020, Ms Thompson presented the above email to the Respondent’s Board meeting. Members of the Board reviewed the email in the absence of Ms Thompson and Ms Rebecca Oberle, Executive Officer. After inviting Ms Thompson and Ms Oberle to return to the meeting, the Board discussed the adequacy of the report and instructed Ms Thompson to write to Mr Pollard seeking witness statements and recordings and any other material obtained in the course of the investigation to determine how the Board might proceed with the complaint.

[15] The Board instructed Ms Thompson to seek independent legal advice in relation to the issue given what it considered to be the seriousness of the issues and the apparent inadequacy of the investigation report.

[16] On 13 May 2020, Ms Thompson emailed Mr Pollard and requested he provide any witness statements or recordings or any other material he had obtained in the course of the investigation. On 14 May 2020, Mr Pollard emailed Ms Thompson the following:

“Hi Pat,

I didn’t record any of the meetings or obtain any witness statements. I only took brief notes during my interviews (which all were quite short). I haven’t put my notes onto the computer, but I could do so if you would like, but they are written in my rather obscure note form so I don’t know how much use they would be.”

[17] Ms Thompson then attended a Board meeting where Mr Pollard’s email was presented. Her evidence is that the Board informed her that they were not satisfied with the report or the proposed outcome. The Board instructed Ms Thompson to write to CMS advising it that the Board was not satisfied with Mr Pollard’s email as a workplace investigation report.

[18] The Board took legal advice on the next steps and in a subsequent meeting at which Ms Thompson was present, the Board resolved to conduct its own show cause process in which the allegations would be put in full to Mr Ives and he would be invited to show cause why he should not be dismissed for misconduct.

[19] Mr Ives was provided a show cause letter on 20 May 2020. Ms Thompson’s oral evidence at hearing is that Mr Reed of Counsel prepared the letter, as follows:

“20th May 2020

Mr Jason Ives
[redacted]

Dear Mr Ives

SHOW CAUSE NOTICE

As your employer, Link-Up (Qld) Aboriginal Corporation (Link-Up) requires you to show cause why your employment should not be terminated for alleged misconduct against Link-Up's Redress Manager, Anne Struckett, over a three month period between January 2020 and April 2020. The particulars of the alleged misconduct are as follows.

1. January 2020

It is alleged that on a date in January 2020 you engaged in the following conduct in the kitchen at Link-Up 's offices at [redacted] (Link-Up's offices):

• You engaged in conversation with Ms Struckett and then Redress Counsellor, Julie Pemberton, while Ms Struckett and Ms Pemberton were having lunch at about 1 pm;

• At some stage during the conversation you said to Ms Pemberton, with reference to Ms Struckett that "she can put a paper bag on her head';

• Further, while you were adjusting the kitchen clock on the wall, and advised by Ms Pemberton to be careful so that it did not fall on Ms Struckett, you said to Ms Pemberton, with reference to Ms Struckett, that "it can hit her on the head, I don't care" .

Link-Up considers that, if either of those allegations can be substantiated, your conduct would constitute:

• a breach of the guiding principles in clause 5.1 of Link-Up' s Code of Conduct (the Code of Conduct) by failing to maintain a high degree of ethics, integrity and professionalism towards Ms Struckett;

• a breach of clause 5.1 of the Code of Conduct in failing to be courteous to Ms Struckett;

• a breach of clause 5.2.1 of the Code of Conduct by failing to treat Ms Struckett with respect, courtesy and fairness;

• a breach of clause 5.2 of the Code of Conduct by failing to maintain an open and harmonious work environment , and failing to show respect and support for Ms Struckett in a manner that promoted a cooperative work environment ;

• workplace bullying and workplace harassment, including conduct in breach of clauses 7.1 and 9.0 of Link-Up's policy on Sexual Harassment, Discrimination and Bullying (the Harassment Policy);

• breaches of clauses l0, 11, 13 and 19 of your employment contract which require you to comply with the Code of Conduct and Harassment Policy and otherwise not engage in workplace harassment.

2. February 2020 - Road trip preparations

It is alleged that in February 2020, in the course of preparation for an upcoming road trip:

• On one occasion, in Ms Pemberton's office, while you, Ms Pemberton and Ms Struckett were discussing planning, you said to Ms Struckett "/ don't like you, I don't like the way you look, the way you dress and your name";

• When Ms Struckett said to you, in response to your comment, words to the effect of "are you judging me, as it is not good to judge people?", you responded"/ don't care";

• On a different day, while passing Ms Struckett in the hall at Link-Up' s offices, you said to Ms Struckett words which included "its because I don't like you" ;

• When asked by Ms Struckett why you kept saying words to that effect, you laughed and said "I just don't like you. When I first saw you, I thought she looks like a bitch".

Link-Up considers that, if any of those allegations can be substantiated, your conduct would constitute:

• a breach of the guiding principles in clause 5.1 of the Code of Conduct by failing to maintain a high degree of ethics, integrity and professionalism towards Ms Struckett;

• a breach of clause 5.1 of the Code of Conduct in failing to be courteous to Ms Struckett;

• a breach of clause 5.2.1 of the Code of Conduct by failing to treat Ms Struckett with respect, courtesy and fairness;

• a breach of clause 5.2 of the Code of Conduct by failing to maintain an open and harmonious work environment, and failing to show respect and support for Ms Struckett in a manner that promoted a cooperative work environment;

• workplace bullying and workplace harassment, including conduct in breach of clauses

• and 9.0 of the Harassment Policy;

• breaches of clauses l0, 11, 13 and 19 of your employment contract which require you to comply with the Code of Conduct and Harassment Policy and otherwise not engage in workplace harassment.

3. 19 February 2020

It is alleged that on this date, while on the road trip to Central Queensland, you sent an SMS to Ms Struckett about the starting time for work the next day which said "Gumby 7.30 am again tomorrow" .

• The expression "Gumby" is one descriptive of a person regarded as stupid or inept.

Link-Up considers that, if this allegation can be substantiated, your conduct would constitute:

• a breach of the guiding principles in clause 5.1 of the Code of Conduct by failing to maintain a high degree of ethics, integrity and professionalism towards Ms Struckett;

• a breach of clause 5.1 of the Code of Conduct in failing to be courteous to Ms Struckett;

• a breach of clause 5.2. l of the Code of Conduct by failing to treat Ms Struckett with respect, courtesy and fairness;

• a breach of clause 5.2 of the Code of Conduct by failing to maintain an open and harmonious work environment, and failing to show respect and support for Ms Struckett in a manner that promoted a cooperative work environment ;

• workplace bullying and workplace harassment, including conduct in breach of clauses 7.1 and 9.0 of the Harassment Policy;

• breaches of clauses l0, 11, 13 and 19 of your employment contract which require you to comply with the Code of Conduct and Harassment Policy and otherwise not engage in workplace harassment.

4. 20 February 2020

It is alleged that, on this date, in the course of the aforementioned road trip, the Link-Up team was undertaking a presentation at the University of Sunshine Coast on an extremely hot day, when:

• after Ms Struckett had remarked that the room was hot and everyone was sweating, you approached Ms Struckett and ran your extremely sweaty forearm along Ms Struckett' s arm, thereby covering it with your sweat;

• upon Ms Struckett recoiling from this conduct, you laughed and walked away.

Link-Up considers that, if those allegation can be substantiated, your conduct would constitute:

• a breach of the guiding principles in clause 5.1 of the Code of Conduct by failing to maintain a high degree of ethics, integrity and professionalism towards Ms Struckett;

• a breach of clause 5.1 of the Code of Conduct in failing to be courteous to Ms Struckett;

• a breach of clause 5.2.l of the Code of Conduct by failing to treat Ms Struckett with respect, courtesy and fairness;

• a breach of clause 5.2 of the Code of Conduct by failing to maintain an open and harmonious work environment, and failing to show respect and support for Ms Struckett in a manner that promoted a cooperative work environment;

• workplace bullying and workplace harassment, including conduct in breach of clauses 7.1 and 9.0 of the Harassment Policy;

• sexual harassment in breach of clauses 5.1 and 9.0 of the Harassment Policy;

• breaches of clauses 10, 11, I 3 and 19 of your employment contract which require you to comply with Link-Up' s Code of Conduct and Harassment Policy and otherwise not engage in workplace harassment;

• unlawful sexual harassment contrary to the Sex Discrimination Act 1984 (Cth) and the Anti-Discrimination Act 1991 (Qld).

5. 27 February 2020 - Client morning tea

It is alleged that on this date, in the kitchen at Link-Up ' s offices, while you and others were preparing food for a client morning tea, you called out to Ms Struckett and licked a piece of kabana which you were holding while saying to Ms Struckett "here Anne" .

Link-Up considers that, if this allegation can be substantiated, your conduct would constitute:

• a breach of the guiding principles in clause 5.1 the Code of Conduct by failing to maintain a high degree of ethics, integrity and professionalism towards Ms Struckett;

• a breach of clause 5. I of the Code of Conduct in failing to be courteous to Ms Struckett;

• a breach of clause 5.2.1 of the Code of Conduct by failing to treat Ms Struckett with respect, courtesy and fairness;

• a breach of clause 5.2 of the Code of Conduct by failing to maintain an open and harmonious work environment, and failing to show respect and support for Ms Struckett in a manner that promoted a cooperative work environment;

• engaging in workplace bullying and workplace harassment, including conduct in breach of clause 7.1 of the Harassment Policy;

• sexual harassment in breach of clauses 5.1 and 9.0 of the Harassment Policy;

• breaches of clauses 10, 11, 13 and 19 of your employment contract which require you to comply with Link-Up's Code of Conduct and Harassment Policy and otherwise not engage in workplace harassment;

• unlawful sexual harassment contrary to the Sex Discrimination Act 1984 (Cth) and the Anti-Discrimination Act 1991 (Qld).

6. 11 March 2020 - Fire training in the conference room

It is alleged that on this date, during fire training in the conference room at Link-Up' s offices, you took a cracker from a plate of crackers and cheese on the table, licked the cracker and held it towards Ms Struckett saying to Ms Struckett "here, this is for you".

Link-Up considers that, if this allegation can be substantiated, your conduct would constitute:

• a breach of the guiding principles in clause 5.1 of the Code of Conduct by failing to maintain a high degree of ethics, integrity and professionalism towards Ms Struckett;

• a breach of clause 5.1 of the Code of Conduct in failing to be courteous to Ms Struckett;

• a breach of clause 5.2.1 of the Code of Conduct by failing to treat Ms Struckett with respect, courtesy and fairness;

• a breach of clause 5.2 of the Code of Conduct by failing to maintain an open and harmonious work environment, and failing to show respect and support for Ms Struckett in a manner that promoted a cooperative work environment;

• workplace bullying and workplace harassment, including conduct in breach of clauses 7.1 and 9.0 of the Harassment Policy;

• sexual harassment in breach of clauses 5.1 and 9.0 of the Harassment Policy;

• breaches of clauses 10, 11, 13 and 19 of your employment contract which require you to comply with Link-Up' s Code of Conduct and Harassment Policy and otherwise not engage in workplace harassment;

• unlawful sexual harassment contrary to the Sex Discrimination Act 1984 (Cth) and the Anti-Discrimination Act 1991 (Qld).

7. 18 March 2020- COVID-19 staff meeting in the conference room

It is alleged that on this date, during a staff meeting about COVID-19 issues in the conference room at Link-Up' s offices, you said about Ms Struckett " I don't like her" in the presence and hearing of several other staff members, including Donna Ives and Cheryl Page and Pat Thompson.

Link-Up considers that, if this allegation can be substantiated, your conduct would constitute:

• a breach of the guiding principles in clause 5.1 of the Code of Conduct by failing to maintain a high degree of ethics, integrity and professionalism towards Ms Struckett;

• a breach of clause 5.1 of the Code of Conduct in failing to be courteous to Ms Struckett;

• a breach of clause 5.2.1 of the Code of Conduct by failing to treat Ms Struckett with respect, courtesy and fairness;

• a breach of clause 5.2 of the Code of Conduct by failing to maintain an open and harmonious work environment, and failing to show respect and support for Ms Struckett in a manner that promoted a cooperative work environment;

• workplace bullying and workplace harassment, including conduct in breach of clauses 7.1 and 9.0 of the Harassment Policy;

• breaches of clauses 10, 11, 13 and 19 of your employment contract which require you to comply with Link-Up' s Code of Conduct and Harassment Policy and otherwise not engage in workplace harassment.

8. Constantly being referred to as "Dumbo", "Gumby" and "Simple"

It is alleged that on numerous occasions during the period January - April 2020, while walking passed (sic) Ms Struckett's office, you would use one of the aforementioned words in relation to Ms Struckett, for example by saying words such as "Hi simple".

• This conduct occurred at least once every week;

• This conduct was accompanied on each occasion by your smirking and laughing.

Link-Up considers that, if any of those allegations can be substantiated, your conduct would constitute:

• a breach of the guiding principles in clause 5.1 of the Code of Conduct by failing to maintain a high degree of ethics, integrity and professionalism towards Ms Struckett;

• a breach of clause 5.I of the Code of Conduct in failing to be courteous to Ms Struckett;

• a breach of clause 5.2.1 of the Code of Conduct by failing to treat Ms Struckett with respect, courtesy and fairness;

• a breach of clause 5.2 of the Code of Conduct by failing to maintain an open and harmonious work envi ronment, and failing to show respect and support for Ms Struckett in a manner that promoted a cooperative work environment ;

• engaging in workplace bullying and workplace harassment, including conduct and breach of clauses 7.1 and 9.0 of the Harassment Policy;

9. April 2020

It is alleged that in April 2020, after Ms Struckett had moved into a new office which would not be on your normal route in travelling to necessary places within Link-Up 's offices, on a number of occasions you went out of your way to walk to Ms Struckett's office and say to her comments such as "Hey Dumbo", "Gumby" or " Simple".

•
On some of those occasions you entered Ms Struckett's office and said those words;

• On some occasions Ms Struckett would say words to the effect of "what did you just say?" and that on each of those occasions your response was to repeat the particular word to her;

• On one occasion when you had addressed Ms Struckett as "Gumby" , Ms Struckett said that she had previously been an HR manager and had terminated people for acting like that, you responded by saying "I don't care, bring it on" .

Link-Up considers that, if any of those allegations can be substantiated, your conduct would constitute:

• a breach of the guiding principles in clause 5.1 the Code of Conduct by failing to maintain a high degree of ethics, integrity and professionalism towards Ms Struckett;

• a breach of clause 5.1 of the Code of Conduct in failing to be courteous to Ms Struckett;

• a breach of clause 5.2.1 of the Code of Conduct by failing to treat Ms Struckett with respect, courtesy and fairness;

• a breach of clause 5.2 of the Code of Conduct by failing to maintain an open and harmonious work environment, and failing to show respect and support for Ms Struckett in a manner that promoted a cooperative work environment;

• workplace bullying and workplace harassment, including conduct in breach of clauses 7.1 and 9.0 of the Harassment Policy;

10. 27 April 2020 (first incident)

It is alleged that on the morning of this date, as Ms Struckett was leaving the kitchen and proceeding towards her office:

• You called out loudly to Ms Struckett using the word "Gumby" ;

• you then called out to Ms Struckett "Anne!" and, upon Ms Struckett turning around, you said to her words to the effect of "don't make me have to call you twice".

Link-Up considers that, if either of those allegations can be substantiated, your conduct would constitute:

• a breach of the guiding principles in clause 5. I the Code of Conduct by failing to maintain a high degree of ethics, integrity and professionalism towards Ms Struckett;

• a breach of clause 5.1 of the Code of Conduct in failing to be courteous to Ms Struckett;

• a breach of clause 5.2.1 of the Code of Conduct by failing to treat Ms Struckett with respect, courtesy and fairness;

• a breach of clause 5.2 of the Code of Conduct by failing to maintain an open and harmonious work environment, and failing to show respect and support for Ms Struckett in a manner that promoted a cooperative work environment;

• workplace bullying and workplace harassment, including conduct in breach of clause 7.1 of the Harassment Policy;

11. 27 April 2020 (second incident)

It is alleged that on this date, while Ms Struckett was in your office, you pointed to the care package spreadsheet opened on your screen and said to Ms Struckett words to the effect of "do you know how to use that?" .

Link-Up considers that, if this allegation can be substantiated, your conduct would constitute:

• a breach of the guiding principles in clause 5.1 of the Code of Conduct by failing to maintain a high degree of ethics, integrity and professionalism towards Ms Struckett;

• a breach of clause 5.1 of the Code of Conduct in failing to be courteous to Ms Struckett;

• a breach of clause 5.2.1 of the Code of Conduct by failing to treat Ms Struckett with respect, courtesy and fairness;

• a breach of clause 5.2 of the Code of Conduct by failing to maintain an open and harmonious work environment, and failing to show respect and support for Ms Struckett in a manner that promoted a cooperative work environment;

• workplace bullying and workplace harassment, including conduct in breach of clauses 7.1 and 9.0 of the Harassment Policy;

12. April 2020 - Care package boxes - gestures towards Ms Struckett

It is alleged that on at least 2 occasions in April 2020 you made gestures towards Ms Struckett indicating putting a box over her head:

• Once while sitting at your desk while Ms Struckett walked passed (sic) in the hallway;

• Once in Ms Struckett's office after you had come into her office with a box.

Link-Up considers that, if either of those allegations can be substantiated, your conduct would constitute:

• a breach of the guiding principles in clause 5.1 of the Code of Conduct by failing to maintain a high degree of ethics, integrity and professionalism towards Ms Struckett;

• a breach of clause 5.1 of the Code of Conduct in failing to be courteous to Ms Struckett;

• a breach of clause 5.2.1 of the Code of Conduct by failing to treat Ms Struckett with respect, courtesy and fairness;

• a breach of clause 5.2 of the Code of Conduct by failing to maintain an open and harmonious work environment, and failing to show respect and support for Ms Struckett in a manner that promoted a cooperative work environment;

• workplace bullying and workplace harassment, including conduct in breach of clauses 7.1 and 9.0 of the Harassment Policy;

• breaches of clauses 10, 11, 13 and 19 of your employment contract which require you to comply with Link-Up' s Code of Conduct and Harassment Policy and otherwise not engage in workplace harassment.

13. 29 April 2020

It is alleged that on this date, at Link-Up's offices:

• At approximately 4.05 pm, you called out to Ms Struckett "Hey Dumbo, are you still in there?";

• After Ms Struckett had then asked "what did you say?", you simply replied "Dumbo".

Link-Up considers that, if either of those allegations can be substantiated, your conduct would constitute:

• a breach of the guiding principles in clause 5.1 the Code of Conduct by failing to maintain a high degree of ethics, integrity and professionalism towards Ms Struckett;

• a breach of clause 5.1 of the Code of Conduct in failing to be courteous to Ms Struckett;

• a breach of clause 5.2.1 of the Code of Conduct by failing to treat Ms Struckett with respect, courtesy and fairness;

• a breach of clause 5.2 of the Code of Conduct by failing to maintain an open and harmonious work environment, and failing to show respect and support for Ms Struckett in a manner that promoted a cooperative work environment;

• engaging in bullying and workplace harassment, including conduct in breach of clauses 7.1 and 9.0 of the Harassment Policy;

14. 30 April 2020

It is alleged that on this day, after Ms Struckett returned to Link-Up' s offices after delivering care packages:

• you walked into her office and said "Dumbo!".

• Immediately after that incident, upon being asked by Ms Struckett "what did you say?", you again said to her "Dumbo!", followed by the words "how come it took you so long?".

Link-Up considers that, if either of those allegations can be substantiated, your conduct would constitute:

• a breach of the guiding principles in clause 5.1 of the Code of Conduct by failing to maintain a high degree of ethics, integrity and professionalism towards Ms Struckett;

• a breach of clause 5.1 of the Code of Conduct in failing to be courteous to Ms Struckett;

• a breach of clause 5.2.1 of the Code of Conduct by failing to treat Ms Struckett with respect, courtesy and fairness;

• a breach of clause 5.2 of the Code of Conduct by failing to maintain an open and harmonious work environment, and failing to show respect and support for Ms Struckett in a manner that promoted a cooperative work environment;

• engaging in workplace bullying and workplace harassment, including conduct in breach of clauses 7.1 and 9.0 of the Harassment Policy;

• breaches of clauses 10, 11, 13 and 19 of your employment contract which require you to comply with the Code of Conduct and Harassment Policy and otherwise not engage in workplace harassment.

Impact on Ms Struckett

Ms Struckett has advised Link-Up that:

• she has felt bullied, intimidated and harassed by the conduct set out in the allegations;

• that conduct has impacted on her in a number of ways including her experiencing increased anxiety, elevated stress levels and negative effects on her mental health;

• as a result of the above conduct there has been a negative impact on her relationship with her family and her capacity to relax while at home;

• the conduct has also resulted in her suffering an aggravation of a pre-existing physical condition which has been adversely impacted by the stress and anxiety described above.

Your response

Without limiting the content of your response to this show cause notice , your response should deal with the allegations listed above and, where any allegation is admitted or you otherwise consider it necessary, provide any explanation for the conduct.

You are invited to respond to this show cause notice in writing and your response should be received by Link-Up within fourteen (14) days of receipt of this notice.

Link-Up will then consider your response and any other relevant material in making a decision as to your ongoing employment.

Continued stand down

During the time allowed for response to this show cause notice, and until any final determination is made by Link-Up as to your employment, you remain stood down on pay in accordance with the terms of the stand down letter delivered to you by hand on 5 May 2020. You are particularly reminded of the directions to not communicate with other staff or clients or suppliers of Link-Up and not to attend the workplace unless otherwise directed.

If you have any queries concerning the content of this notice or other matters relating to your employment, please direct them via email to [redacted] or by phone on [redacted].

Yours sincerely

Patricia Thompson
Chief Executive Officer”

[20] By letter of 2 June 2020, Norton Rose Fulbright advised the Respondent that its firm had been engaged by Mr Ives. It put to the Respondent the following:

• Mr Ives has already responded to the allegations made against him during the course of an independent investigation by Craig Pollard, Employee Relations Consultant with Community Management Solutions;

• The Respondent has not provided Mr Ives with a copy of the investigation report, any details about the investigation or its outcome, or any information about the evidence upon which the Respondent seeks to rely in relation to the potential termination of Mr Ives’ employment;

• The Respondent’s failure to properly particularise the allegations or provide the evidence significantly prejudices Mr Ives’ ability to understand or respond to the allegations;

• Mr Ives must be afforded the opportunity to make submissions upon the evidence, including the independent investigation report. He must also be afforded the opportunity to make submissions relevant to the credit of [Ms Struckett] and any witness who has provided evidence adverse to him; and

• Once all material has been provided to Mr Ives, he will require a further three business days to respond.

[21] Further, it was put that Mr Ives had heard rumours relevant to his absence from work that he is facing “serious allegations” and he is a “predator”. An undertaking of the Respondent was sought.

[22] The Respondent replied by letter on 3 June 2020, granting an extension for the show cause reply until 5.00pm on Friday, 5 June 2020. As to the matters of confidentiality and rumours against Mr Ives, the Respondent stated:

“Confidentiality

I am not aware of the ‘rumours’ alleged by your client to be circulating about him, or any other rumours concerning his situation. It is nothing more than idle speculation to suggest that ‘Link-Up’ is the course of any such rumours if they have existed.

I further reject the implication in your letter that I have made comments defamatory of Mr Ives.”

[23] Norton Rose Fulbright provided Mr Ives’ Response to Show Cause on 5 June 2020, which stated:

“Dear Ms Thompson

Our client: Jason Ives

As previously advised, we act for Jason Ives, who has provided us with a copy of your correspondence dated 20 May 2020. We are instructed to respond to that correspondence as follows.

Response to show cause

1 At the outset, we make the following points with reference to your proposal to terminate Mr Ives' employment:

(1) Mr Ives has been employed with Link-Up (Qld) Aboriginal Corporation (Link-Up) since 23 April 2015 and has an unblemished service record.

(2) This matter has been independently investigated, and Mr Ives provided a response as part of that process. Mr Ives has not been provided with a copy of the investigation report, despite the investigator expressly advising him that this would occur, and despite our request for the report.

(3) The manner in which the investigation has been conducted is unfair, because Mr Ives was required to attend an interview with the investigator on very short notice and was not provided with any details whatsoever of the allegations ahead of the interview. This has prejudiced his ability to prepare a fulsome response.

(4) During the investigation, Mr Ives was read the allegations in full but was not given a subsequent opportunity to respond to them point-by-point, and his response has therefore been compromised.

(5) Further, as you point out in your correspondence of 3 June 2020, the show cause notice of 20 May 2020 covers a number of allegations which were not put to Mr Ives by the independent investigator (specifically, Allegations 4 and 6). However, given the dates of the incidents alleged and the fact that they are all alleged by one person (Ms Struckett) it is implausible that they were not known to Link-Up by the time of Mr Ives' interview with the investigator.

(6) Link-Up cannot now abandon the investigation which it commissioned or unilaterally decide to introduce new allegations into this process. Doing so suggests that Link-Up is actively soliciting complaints against our client and that this process is a sham designed only to provide the appearance of procedural fairness in circumstances where Link-Up has already made its decision about his future employment. This is objectively inappropriate and unfair to our client.

(7) Mr Ives considered that he had a good working relationship with Anne Struckett, and he regarded her highly.

(8) At no time did Ms Struckett indicate to our client that she was offended, humiliated or intimidated by Mr Ives' conduct until on or about 30 April 2020.

(9) At the time that Ms Struckett raised concerns with Mr Ives about his conduct, he immediately apologised unreservedly. He repeats that apology and genuinely regrets any distress that his actions may have caused for Ms Struckett.

(10) Each of the incidents alleged within your correspondence, if proven, must be assessed reference to the work environment which is promoted within the Link-Up organisation. In this regard, it is relevant to observe that the Link-Up workplace culture is characterised by robust banter at all levels, including:

(a) joking;

(b) swearing; and

(c) the repeated use of extremely offensive language (of both a sexual and racial nature) within the workplace and in text messages between employees (including management, up to the Chief Executive Officer) on work phones, examples of which our client is able to provide.

(11) Conduct of this kind, which may be described as "gallows humour" is a well-known mechanism which staff may employ to assist them to cope with a stressful and, at times, traumatic work environment.

(12) Our client states that Ms Struckett engaged in such jocular activities towards him, including swearing and making a number of comments that contained sexual innuendo towards him (for example, implying that he was promiscuous).

(13) Finally, as you are no doubt aware, our client has previously experienced stress and anxiety as a result of his work within Link-Up (specifically within the Multi Media Unit), which culminated in him taking an extended period of leave to address these concerns in early 2019. Upon his return, he was transferred to Service Delivery, where his work was good and he quickly became a Manager. Since taking on that role, he has been pushed to work longer hours (including weekends) and take on tasks outside of his usual role, including housekeeping/cleaning, facility management, moving furniture, IT and cooking. This additional pressure has exacerbated the stress and anxiety he has suffered since his first claim in 2019.

Allegation 1

2 In brief summary, Allegation 1 is that, on an unspecified date in February 2020, our client allegedly stated to Julie Pemberton, with reference to Anne Struckett (and in Ms Struckett's presence), words to the effect of:

(1) "she can put a paper bag over her head"; and

(2) "it [a clock] can hit her on the head, I don't care".

3 Our client does recall an incident in which he was sitting in the lunch room, during the lunch break, and the clock in the room was slow. He states that the atmosphere in the lunch room was jovial and the group was upbeat. In the course of the discussion, he decided to adjust the clock, which was about 1.5m from where Ms Struckett was seated. He agrees that he used words to the effect of "it can hit her on the head': but states that this was in circumstances where there was no actual risk of her or Ms Pemberton being hit by the clock. He denies saying"/ don't care".

4 In respect of the allegation that our client stated words to the effect of "she can put a paper bag over her head': he does not recall any such incident and denies that the conduct occurred as alleged or at all.

5 It is noted that, whilst the allegation refers to Ms Pemberton as present at the time no detail about Ms Pemberton's evidence is provided. In particular, it is unclear whether Ms Pemberton recalled the alleged incident or provided any evidence about it. If any evidence is available in respect of this allegation, our client is entitled to understand what evidence has been provided and by whom.

6 Accordingly, our client has not been afforded an adequate opportunity to understand the nature of any evidence tendered which is adverse to him, which represents a denial of natural justice.

7 Our client further says that, if such conduct is proven, it must be assessed with reference to the work environment as described in paragraph 1(10) above (which we repeat and rely upon). Whilst our client denies that the conduct occurred as alleged or at all, if it is proven, he further says that any such comment that he may have made was not intended to be offensive, but rather a furtherance of the friendly and jocular working relationship he believed he had with Ms Struckett, characterised by mutual banter.

8 Further, whilst it is accepted that, if proven, such conduct could be unprofessional, disrespectful and discourteous according to the common definitions of those terms, it is not accepted that such conduct, which in any event is denied, would, when taken in context:

(1) be unethical;

(2) demonstrate a lack of integrity;

(3) be unfair; or

(4) amount to failure to maintain an open, harmonious or cooperative work environment.

9 Your show cause notice also fails to particularise how you say that this could be the case.

10 It is further unclear how you say that the conduct alleged is capable of falling within the definitions of workplace harassment or workplace bullying as outlined in the Sexual Harassment, Discrimination and Bullying Procedure (Procedure).

11 Importantly, there is no suggestion that Ms Struckett was offended, humiliated or intimidated by the alleged conduct. Further, even if Ms Struckett was offended, humiliated or intimidated, such conduct would objectively appear to be in the nature of a joke, in a workplace which has a very robust culture of banter. In that environment, a reasonable person could not have anticipated the possibility that Ms Struckett could be offended by the alleged conduct.

12 For the same reasons, even were the conduct proven, it is not capable of amounting to workplace harassment or workplace bullying within the terms of the Procedure or pursuant to the legislative definition contained in the Fair Work Act 2009 (Cth) (FW Act).

13 For the reasons outlined above, any breaches of our client's employment contract, including of clauses 10, 11, 13 or 19 are denied.

14 Our client admits to stating words to the effect of "it can hit her in the head" (with reference to the lunch room clock). The balance of the allegation is denied. Having regard to all of the facts and circumstances, the conduct the subject of this allegation(both the admitted conduct and that which is denied), even if proven, is objectively at the low end of the scale of seriousness.

Allegation 2

15 In brief summary, Allegation 2 is that, on a number of unspecified dates in February 2020, our client allegedly:

(1) stated to Ms Struckett words to the effect of: "I don't like you, I don't like the way you look, the way you dress and your name";

(2) when Ms Struckett responded in words to the effect of: "are you judging me, as it is not good to judge people?", further stated "I don't care",

(3) when passing Ms Struckett in the hallway, stated words to the effect of "it's because I don't like you''.· and

(4) when Ms Struckett asked why our client made such comments, stated words to the effect of:

"I just don't like you, when I first saw you, I thought she looks like a bitch".

16 Our client does not recall any such incident and denies that the conduct occurred as alleged or at all.

17 It is noted that, whilst the allegation refers to Ms Pemberton (and possibly others) as present at the time no detail about any witness evidence is provided. In particular, it is unclear whether any witness recalled the alleged incident or provided any evidence about it.

18 If any evidence is available in respect of this allegation, our client is entitled to understand what evidence has been provided and by whom.

19 Accordingly, our client has not been afforded an adequate opportunity to understand the nature of any evidence tendered which is adverse to him, which represents a denial of natural justice.

20 Our client further says that, if such conduct is proven, it must be assessed with reference to the work environment as described in paragraph 1(10) above (which we repeat and rely upon). Whilst our client denies that the conduct occurred as alleged or at all, if it is proven, he further says that any such comment that he may have made was not intended to be offensive, but rather a furtherance of the friendly and jocular working relationship he believed he had with Ms Struckett, characterised by mutual banter.

21 Further, whilst it is accepted that, if proven, such conduct could be unprofessional, disrespectful and discourteous according to the common definitions of those terms, it is not accepted that such conduct, which in any event is denied, would, when taken in context:

(1) be unethical;

(2) demonstrate a lack of integrity;

(3) be unfair; or

(4) amount to failure to maintain an open, harmonious or cooperative work environment.

22 Your show cause notice also fails to particularise how you say that this could be the case.

23 It is further unclear how you say that the conduct alleged is capable of falling within the definitions of workplace harassment or workplace bullying as outlined in the Procedure.

24 Importantly, there is no suggestion that Ms Struckett was offended, humiliated or intimidated by the alleged conduct. Further, even if Ms Struckett was offended, humiliated or intimidated, such conduct would objectively appear to be in the nature of a joke, in a workplace which has a very robust culture of banter. In that environment, a reasonable person could not have anticipated the possibility that Ms Struckett could be offended by the alleged conduct.

25 For the same reasons, even were the conduct proven, it is not capable of amounting to workplace harassment or workplace bullying within the terms of the Procedure or pursuant to the legislative definition contained in the FW Act.

26 Having regard to all of the facts and circumstances, the conduct the subject of this allegation (which is denied), even if proven, is objectively at the low end of the scale of seriousness.

27 For the reasons outlined above, any breaches of our client's employment contract, including of clauses 10, 11, 13 or 19 are denied.

28 Having regard to all of the facts and circumstances, the conduct the subject of this allegation (which is denied), even if proven, is objectively at the low end of the scale of seriousness.

Allegation 3

29 In brief summary, Allegation 3 is that:

(1) on 19 February 2020, our client sent a text message to Ms Struckett which read "Gumby 7.30 am again tomorrow"; and

(2) that the term "Gumby'' is one descriptive of a person regarded as stupid or inept.

30 Our client admits that he did call Ms Struckett "Gumby" on occasion. He further states that:

(1) he uses the term as a nickname and it is intended as a friendly and jovial nickname;

(2) he has called others in the workplace, with whom he is friendly, "Gumby" and does not single Ms Struckett out for this;

(3) he is not aware that any person has previously taken offence to this and states that it is only intended to be friendly in nature;

(4) he first became aware that Ms Struckett was offended by the use of the nickname on or about 30 April 2020, upon which he unreservedly apologised;

(5) he has not used that nickname or any other towards her since on or about 30 April 2020;

(6) he does not accept that the term "Gumby'' describes a person who is stupid or inept, but states that it refers to the title character in a clay animation program which was popular from the 1950s to the 1990s;

(7) the word "Gumby" means "Woman Woman Medicine" in the Ghungalu language from the Central Queensland region. It also means "Medicine" in the Bindal and Juru language group, from around the Burdekin area where Mr Ives grew up; and

(8) the term therefore cannot objectively be regarded as offensive in all of the circumstances.

31 Our client further says that, if such conduct is proven, it must be assessed with reference to the work· environment as described in paragraph 1(10) above (which we repeat and rely upon). Whilst our client denies that the conduct occurred as alleged or at all, if it is proven, he further says that any such comment that he may have made was not intended to be offensive, but rather a furtherance of the friendly and jocular working relationship he believed he had with Ms Struckett, characterised by mutual banter.

32 Further, whilst it is accepted that, if proven, such conduct could be unprofessional, disrespectful and discourteous according to the common definitions of those terms, it is not accepted that such conduct, which in any event is denied, would, when taken in context:

(1) be unethical;

(2) demonstrate a lack of integrity;

(3) be unfair; or

(4) amount to failure to maintain an open, harmonious or cooperative work environment.

33 Your show cause notice also fails to particularise how you say that this could be the case.

34 It is further unclear how you say that the conduct alleged is capable of falling within the definitions of workplace harassment or workplace bullying as outlined in the Procedure.

35 Importantly, there is no suggestion that Ms Struckett was offended, humiliated or intimidated by the alleged conduct. Further, even if Ms Struckett was offended, humiliated or intimidated, such conduct would objectively appear to be in the nature of a joke, in a workplace which has a very robust culture of banter. In that environment, a reasonable person could not have anticipated the possibility that Ms Struckett could be offended by the alleged conduct.

36 For the same reasons, even were the conduct proven, it is not capable of amounting to workplace harassment or workplace bullying within the terms of the Procedure or pursuant to the legislative definition contained in the FW Act.

37 Having regard to all of the facts and circumstances, the conduct the subject of this allegation (which is denied), even if proven, is objectively at the low end of the scale of seriousness.

38 For the reasons outlined above, any breaches of our client's employment contract, including of clauses 10, 11, 13 or 19 are denied.

39 Having regard to all of the facts and circumstances, the conduct the subject of this allegation (which is denied), even if proven, is objectively at the low end of the scale of seriousness.

Allegation 4

40 In brief summary, Allegation 4 is that, on 20 February 2020, our client allegedly ran his forearm along Ms Struckett's arm, thereby covering Ms Struckett's arm with sweat, and then laughed and walked away from Ms Struckett.

41 Our client does not recall any such incident and denies that the conduct occurred as alleged or at all.

42 It is noted that, whilst the allegation refers to "the Link-Up team" as present at the time no detail about any witness evidence is provided. In particular, it is unclear whether any witness recalled the alleged incident or provided any evidence about it. If any evidence is available in respect of this allegation, our client is entitled to understand what evidence has been provided and by whom.

43 Accordingly, our client has not been afforded an adequate opportunity to understand the nature of any evidence tendered which is adverse to him, which represents a denial of natural justice.

44 Our client further says that, if such conduct is proven, it must be assessed with reference to the work environment as described in paragraph 1(10) above (which we repeat and rely upon). Whilst our client denies that the conduct occurred as alleged or at all, if it is proven, he further says that any such comment that he may have made was not intended to be offensive, but rather a furtherance of the friendly and jocular working relationship he believed he had with Ms Struckett, characterised by mutual banter.

45 At his interview with the independent investigator on 7 May 2020, our client was expressly advised that none of the allegations are capable of amounting to sexual harassment. That position is objectively correct. That is, section 118 of the Anti-Discrimination Act 1991 (Qld) (AD Act) prohibits sexual harassment of another person, which term is defined in section 119 of the Act to mean:

"Sexual harassment" happens if a person-

(a) subjects another person to an unsolicited act of physical intimacy; or

(b) makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or

(c) makes a remark with sexual connotations relating to the other person; or

(d) engages in any other unwelcome conduct of a sexual nature in relation to the other person;

and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so

(e) with the intention of offending, humiliating or intimidating the other person; or

(f) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

46 Although it is by no means clear, it appears to be the case that you allege that this incident amounted to:

(1) an unsolicited act of physical intimacy; or

(2) other unwelcome conduct of a sexual nature.

47 Both the conduct and the suggestion that any such conduct was sexual in nature are denied. No evidence has been provided to suggest that any witness supports either that the event occurred or that it was interpreted as sexual in nature.

48 Even if physical contact of the kind alleged is proven, it is not objectively possible to identify how it could be regarded as either "physical intimacy" as defined or sexual in nature. Rather, this incident appears to be in the nature of a joke, albeit of a physical nature.

49 Further, whilst it is accepted that, if proven, such conduct could be unprofessional, disrespectful and discourteous according to the common definitions of those terms, it is not accepted that such conduct, which in any event is denied, would, when taken in context:

(1) be unethical;

(2) d monstrate a lack of integrity;

(3) be unfair; or

(4) amount to failure to maintain an open, harmonious or cooperative work environment.

50 Your show cause notice also fails to particularise how you say that this could be the case.

51 The conduct alleged does not fall within the definitions of sexual harassment as outlined in the Procedure.

52 Importantly, there is no suggestion that Ms Struckett was offended, humiliated or intimidated by the alleged conduct. Further, even if Ms Struckett was offended, humiliated or intimidated, such conduct would objectively appear to be in the nature of a practical joke, in a workplace which has a very robust culture of banter. In that environment, a reasonable person could not have anticipated the possibility that Ms Struckett could be offended by the alleged conduct.

53 For the same reasons, even were the conduct proven, it is not capable of amounting to workplace harassment or workplace bullying within the terms of the Procedure or pursuant to the legislative definition contained in the FW Act.

54 Having regard to all of the facts and circumstances, the conduct the subject of this allegation (which is denied), even if proven, is objectively at the low end of the scale of seriousness.

55 For the reasons outlined above, any breach of our client's employment contract, including of clauses 10, 11, 13 or 19 are denied.

Allegation 5

56 In brief summary, Allegation 5 is that, on 27 February 2020, our client licked a piece of kabana and held it whilst stating to Ms Struckett "here, Anne".

57 Our client denies that this incident occurred as alleged. He states that:

(1) a number of individuals were present in the kitchen preparing food, and agrees that Ms Struckett was present;

(2) he states that the mood in the kitchen was friendly, and staff were joking as they prepared the food;

(3) he agrees that he was slicing kabana;

(4) he does not recall if he offered any kabana to Ms Struckett or if she asked for a piece;

(5) he agrees that after slicing the kabana he touched the end piece to his tongue and that he then immediately ate it;

(6) he likens this action to playfully licking the last of the food so that it could not be shared with others, an action which is not uncommon among groups of family or friends;

(7) he does not agree that there was any overt licking of the kabana (rather that it was a single touch) and denies that his actions were sexual in nature; and

(8) he denies that he held the kabana towards Ms Struckett or said "here, Anne".

58 It is further noted that, whilst the allegation refers to others being present in the kitchen at the time, those individuals are not named and no detail about their evidence is provided. In particular, it is unclear whether any of the alleged witnesses recalled the alleged incident or provided any evidence about it. If that is the case, our client is entitled to understand what evidence has been provided and by whom. In this regard, it is relevant to note that the investigator advised our client that there was no evidence to support this allegation, and agreed that the alleged incident had the character of a joke.

59 Accordingly, our client has not been afforded an adequate opportunity to understand the nature of any evidence tendered which is adverse to him, which represents a denial of natural justice.

60 Further, whilst it is accepted that, if proven, such conduct could be unprofessional, disrespectful and discourteous according to the common definitions of those terms, it is not accepted that such conduct, which in any event is denied, would:

(1) be unethical;

(2) demonstrate a lack of integrity;

(3) be unfair; or

(4) amount to failure to maintain an open, harmonious or cooperative work environment.

61 Your show cause notice also fails to particularise how you say that this could be the case.

62 Our client further says that, if such conduct is proven, it must be assessed with reference to the work environment as described in paragraph 1(10) above (which we repeat and rely upon).

63 At his interview with the independent investigator on 7 May 2020, our client was expressly advised that none of the allegations are capable of amounting to sexual harassment. That comment was made at the time that this allegation was discussed. Link-Up cannot now resile from that position in circumstances where the investigator, in conducting the interview with our client, was acting as Link Up's agent.

64 In any event, the position that this allegation is incapable of amounting to sexual harassment is objectively correct. That is, in reliance on s 118 of the AD Act, it is self-evident that the remark, "here Anne" even combined with the allegation that Mr Ives licked a piece of kabana, is not capable of amounting to:

(1) an unsolicited act of physical intimacy; or

(2) an unsolicited demand or request for sexual favours; or

(3) a remark with sexual connotations relating to the other person.

65 Both the conduct and the suggestion that any such conduct was sexual in nature are denied. No evidence has been provided to suggest that any witness supports either that the event occurred or that it was interpreted as sexual in nature.

66 The conduct alleged does not fall within the definitions of sexual harassment as outlined in the Procedure.

67 Importantly, there is no suggestion that Ms Struckett was offended, humiliated or intimidated by the alleged conduct. Further, even if Ms Struckett was offended, humiliated or intimidated, such conduct would objectively appear to be in the nature of a practical joke, in a workplace which has a very robust culture of banter. In that environment, a reasonable person could not have anticipated the possibility that Ms Struckett could be offended by the alleged conduct.

68 For the same reasons, even were the conduct proven, it is not capable of amounting to workplace harassment or workplace bullying within the terms of the Procedure or pursuant to the legislative definition contained in the FW Act.

69 For the reasons outlined above, any breach of our client's employment contract, including of clauses 10, 11, 13 or 19 are denied.

70 Having regard to all of the facts and circumstances, the conduct the subject of this allegation (which is denied), even if proven, is objectively at the low end of the scale of seriousness.

Allegation 6

71 In brief summary, Allegation 6 is that, on 11 March 2020, our client allegedly took a cracker from the table, licked it and held it towards Ms Struckett stating "here, this is for you".

72 Our client does not recall any such incident and denies that the conduct occurred as alleged or at all.

73 It is noted that, whilst the allegation refers to others being present in the room at the time, those individuals are not named and no detail about their evidence is provided. In particular, it is unclear whether any of the alleged witnesses recalled the alleged incident or provided any evidence about it. If that is the case, our client is entitled to understand what evidence has been provided and by whom.

74 Accordingly, our client has not been afforded an adequate opportunity to understand the nature of any evidence tendered which is adverse to him, which represents a denial of natural justice.

75 Further, whilst it is accepted that, if proven, such conduct could be unprofessional, disrespectful and discourteous according to the common definitions of those terms, it is not accepted that such conduct, which in any event is denied, would:

(1) be unethical;

(2) demonstrate a lack of integrity;

(3) be unfair; or

(4) amount to failure to maintain an open, harmonious or cooperative work environment.

76 Your show cause notice also fails to particularise how you say that this could be the case.

77 Our client further says that, if such conduct is proven, it must be assessed with reference to the work environment as described in paragraph 1(10) above (which we repeat and rely upon). At his interview with the independent investigator on Thursday 7th May, our client was expressly advised that none of the allegations are capable of amounting to sexual harassment.

78 That position is objectively correct. That is, in reliance on s 118 of the AD Act, it is self-evident that the remark, "here, this is for you" even combined with the allegation that Mr Ives licked a cracker, is not capable of amounting to:

(1) an unsolicited act of physical intimacy; or

(2) an unsolicited demand or request for sexual favours; or

(3) a remark with sexual connotations relating to the other person.

79 Both the conduct and the suggestion that any such conduct was sexual in nature are denied. No evidence has been provided to suggest that any witness supports either that the event occurred or that it was interpreted as sexual in nature. The investigator specifically advised our client in interview that this incident is not capable of amounting to sexual harassment.

80 The conduct alleged does not fall within the definitions of sexual harassment as outlined in the Procedure.

81 Importantly, there is no suggestion that Ms Struckett was offended, humiliated or intimidated by the alleged conduct. Further, even if Ms Struckett was offended, humiliated or intimidated, such conduct would objectively appear to be in the nature of a practical joke, in a workplace which has a very robust culture of banter. In that environment, a reasonable person could not have anticipated the possibility that Ms Struckett could be offended by the alleged conduct.

82 For the same reasons, even were the conduct proven, it is not capable of amounting to workplace harassment or workplace bullying within the terms of the Procedure or pursuant to the legislative definition contained in the FW Act.

83 For the reasons outlined above, any breach of our client's employment contract, including of clauses 10, 11, 13or19aredenied.

84 Having regard to all of the facts and circumstances, the conduct the subject of this allegation (which is denied), even if proven, is objectively at the low end of the scale of seriousness.

Allegation 7

85 In brief summary, Allegation 7 is that, on 18 March 2020, our client allegedly stated, with reference to Ms Struckett, "/ don't like her" and that this was stated in the presence of other staff.

86 In respect of this allegation, our client repeats and relies upon his response to Allegation 2, contained at paragraphs 16 to 28 above.

Allegations 8, 9, 10 and 13

87 Allegations 8, 9, 10 and 13 are dealt with together, because they deal with the same conduct (i.e. referring to Ms Struckett as "Dumbo", "Gumby" or "Simple").

88 In respect of the use of the term "Gumby'', our client repeats and relies upon his response as outlined in paragraph 30 above.

89 In respect of the alleged use of the terms "Dumbo" or "Simple", our client states that he does not recall any such incident and denies that it occurred as alleged or at all.

90 It is noted that Ms Struckett does not appear to nominate any witnesses to any such conduct, or if any such witness evidence does exist, that our client has not been provided with a copy of that evidence. Accordingly, our client has not been afforded an adequate opportunity to understand the nature of any evidence tendered which is adverse to him, which represents a denial of natural justice.

91 Our client further says that, if such conduct is proven, it must be assessed with reference to the work environment as described in paragraph 1(10) above (which we repeat and rely upon). Whilst our client denies that the conduct occurred as alleged or at all, if it is proven, he further says that any such comment that he may have made was not intended to be offensive, but rather a furtherance of the friendly and jocular working relationship he believed he had with Ms Struckett, characterised by mutual banter.

92 Further, whilst it is accepted that, if proven, such conduct could be unprofessional, disrespectful and discourteous according to the common definitions of those terms, it is not accepted that such conduct, which in any event is denied, would, when taken in context:

(1) be unethical;

(2) demonstrate a lack of integrity;

(3) be unfair; or

(4) amount to failure to maintain an open, harmonious or cooperative work environment.

93 Your show cause notice also fails to particularise how you say that this could be the case.

94 It is further unclear how you say that the conduct alleged is capable of falling within the definitions of workplace harassment or workplace bullying as outlined in the Procedure.

95 Importantly, there is no suggestion that Ms Struckett was offended, humiliated or intimidated by the alleged conduct. Further, even if Ms Struckett was offended, humiliated or intimidated, such conduct would objectively appear to be in the nature of a joke, in a workplace which has a very robust culture of banter. In that environment, a reasonable person could not have anticipated the possibility that Ms Struckett could be offended by the alleged conduct.

96 For the same reasons, even were the conduct proven, it is not capable of amounting to workplace harassment or workplace bullying within the terms of the Procedure or pursuant to the legislative definition contained in the FW Act.

97 Having regard to all of the facts and circumstances, the conduct the subject of this allegation (which is denied), even if proven, is objectively at the low end of the scale of seriousness.

98 For the reasons outlined above, any breaches of our client's employment contract, including of clauses 10, 11, 13 or 19 are denied.

99 Having regard to all of the facts and circumstances, the conduct the subject of this allegation (which is denied), even if proven, is objectively at the low end of the scale of seriousness.

Allegation 11

100 In brief summary, Allegation 1-1 is that, on 27 April 2020, our client allegedly stated to Ms Struckett words to the effect of: "do you know how to use that?" whilst pointing at a spreadsheet.

101 There is nothing on the face of this allegation to disclose any inappropriate or unprofessional conduct by our client.

102 Our client states that:

(1) many staff at Link-Up are unfamiliar with several programmes used in the organisation, particularly Laserfiche and Foxtrot, and this has been an issue throughout our client's time with the organisation;

(2) for this reason, many staff assist others with using the software on a regular basis; and

(3) if our client make such a comment to Ms Struckett (which he does not recall), it was intended only to assist and support Ms Struckett.

103 Indeed, without more, this allegation is suggestive of a supportive and collaborative approach from our client towards Ms Struckett, whom he respected and with whom he believed he had a friendly working relationship.

104 On that basis, even at its highest that allegation (even if proven) is not cable of amounting to:

(1) a breach of Link-Up's Code of Conduct;

(2) workplace bullying or workplace harassment at law;

(3) conduct in breach of the Procedure;

(4) breaches of our client's employment contract, including of clauses 10, 11, 13 or 19.

Allegation 12

105 In brief summary, Allegation 12 is that, on at least two unspecified dates in April 2020, our client allegedly made gestures towards Ms Struckett to indicate putting a box over her head.

106 Our client denies the incident as alleged and says:

(1) he recalls a single incident where he walked past Ms Struckett carrying a cardboard box;

(2) on this occasion, Ms Struckett asked what the box was for and he replied, jokingly, in words to the effect of "it's to put over your head";

(3) both he and Ms Struckett laughed and he did not consider that the remark was offensive when taken in context; and

(4) he denies making any motion to suggest actually placing a box on her head (at any time).

107 Our client further says that, if such conduct is proven, it must be assessed with reference to the work environment as described in paragraph 1(10) above (which we repeat and rely upon). Whilst our client denies that the conduct occurred as alleged or at all, if it is proven, he further says that any such comment that he may have made was not intended to be offensive, but rather a furtherance of the friendly and jocular working relationship he believed he had with Ms Struckett, characterised by mutual banter.

108 Further, whilst it is accepted that, if proven, such conduct could be unprofessional, disrespectful and discourteous according to the common definitions of those terms, it is not accepted that such conduct, which in any event is denied, would, when taken in context:

(1) be unethical;

(2) demonstrate a lack of integrity;

(3) be unfair; or

(4) amount to failure to maintain an open, harmonious or cooperative work environment.

109 Your show cause notice also fails to particularise how you say that this could be the case.

110 It is further unclear how you say that the conduct alleged is capable of falling within the definitions of workplace harassment or workplace bullying as outlined in the Procedure.

111 Importantly, there is no suggestion that Ms Struckett was offended, humiliated or intimidated by the alleged conduct. Further, even if Ms Struckett was offended, humiliated or intimidated, such conduct would objectively appear to be in the nature of a joke, in a workplace which has a very robust culture of banter. In that environment, a reasonable person could not have anticipated the possibility that Ms Struckckett could be offended by the alleged conduct.

112 For the same reasons, even were the conduct proven, it is not capable of amounting to workplace harassment or workplace bullying within the terms of the Procedure or pursuant to the legislative definition contained in the FW Act.

113 Having regard to all of the facts and circumstances, the conduct the subject of this allegation (which is denied), even if proven, is objectively at the low end of the scale of seriousness.

114 For the reasons outlined above, any breaches of our client's employment contract, including of clauses 10, 11, 13 or 19 are denied.

115 Having regard to all of the facts and circumstances, the conduct the subject of this allegation (which is denied), even if proven, is objectively at the low end of the scale of seriousness.

Conclusion

116 Whilst Mr Ives accepts that he referred to Ms Struckett as "Gumby" from time to time, he denies that this was inappropriate when placed in context. When Mr Ives became aware that Ms Struckett was offended by the nickname, he ceased using it and apologised unreservedly.

117 Mr Ives also accepts that:

(1) on one occasion, he stated words to the effect of "it can hit her in the head" (with reference to the lunch room clock), though he states that this was stated in a jocular fashion with no intent to cause distress to Ms Struckett;

(2) he did place his tongue on a piece of kabana before eating it, and that Ms Struckett was present (though he denies that the conduct was sexual in nature or specifically targeted towards Ms Struckett); similarly this was done jokingly and in the context of high spirits in the kitchen at the time; and

(3) on one occasion, he stated words to the effect of "it's to put over your head" (with reference to a cardboard box), though he denies any gesture towards doing so and states that this was stated in a jocular fashion with no intent to cause distress to Ms Struckett.

118 The balance of the allegations are denied.

119 Our client acknowledges that some of his conduct, as admitted above, has not been of the highest professional standard. Where his conduct has not met the necessary standard, he further says that his judgment in the workplace may have been affected by the recent exacerbation of his workcaused stress and anxiety as a result of increasingly unreasonable work demands, in combination with his belief that his working relationship with Ms Struckett was both positive and characterised by friendly banter.

120 Although he considered that the conduct in question was no more than banter in the context of a friendly and respectful working relationship, and within a robust workplace culture, he now realises that Ms Struckett has not perceived his banter in the manner which he intended. Our client deeply regrets any distress Ms Struckett has experienced as a result of his conduct, and he again offers an unreserved apology.

121 It is noted that Mr Ives apologised to Ms Struckett on the first occasion that she alerted him to the fact that she was offended by his behaviour, and has not since repeated that behaviour.

122 In respect of those allegations which are denied, Mr Ives again seeks provision of the independent investigation report, and provision of properly particularised allegations in order to enable him to provide a proper response to these matters, and reserves his right to provide a further response once that material is provided.

123 However, even if you regard each of the allegations contained in your correspondence as proven, it is our client's position that such conduct:

(1) is not of an inappropriate nature when considered against the robust workplace culture;

(2) is not capable of amounting to a breach of his obligations at law, under the Procedure or pursuant to his contract of employment; and

(3) if it is regarded as inappropriate, would be at the low end of the scale of seriousness and far outweighed by his significant unblemished history with Link-Up.

124 Accordingly, termination of employment is vastly disproportionate to the conduct alleged.

125 Mr Ives is passionate about the work he performs for Link-Up and desires to return to his role as soon as possible. He submits that the appropriate action is an informal counselling and proposes that a mediation should be undertaken to identify any additional concerns and repair his working relationship with Ms Struckett (which he regarded as positive).

126 Finally, we take the opportunity to point out that the manner in which this investigation and show cause process has been carried out has not been in accordance with appropriate practice, and has caused significant distress (as well as reputational damage) to our client and to his family. He reserves all of his rights in this regard.

Yours faithfully

Peta Willoughby
Special Counsel
Norton Rose Fulbright Australia
Partner: Martin Osborne”

[24] On 10 June 2020, the Board met to consider Mr Ives’ response. The resolution made by the Board is as follows:

[309] Link-Up submits that Mr Ives was given training in relation to the Code of Conduct and the Link-Up harassment policy and that his employment contract made clear to Mr Ives his obligations to treat fellow employees with respect, courtesy and professionalism and not to engage in bullying or harassment. While Mr Ives asserts that there was a robust workplace culture at Link-Up which excused his conduct, Link-Up rejects any suggestion that the workplace culture which it fostered was anything other than one in which employees treated each other with respect and decency. Link-Up submits that Mr Ives has failed to distinguish between workplace jokes between persons who have known and worked with each other for a significant period, thereby having established shared understandings and boundaries, and his intimidating and disrespectful abuse and language towards Ms Struckett who was a new employee with whom Mr Ives had not previously worked and with whom he had established no particular rapport.

[310] Link-Up submits that Mr Ives and Ms Struckett did not work in the same areas and Mr Ives’ “concerted and targeted conduct against Ms Struckett” was the “very antithesis” of a healthy workplace relationship. Link-Up submits that Mr Ives behaved in a predatory fashion towards Ms Struckett, which is underlined by his continuing to visit her office in April 2020 after she had moved to an office which was removed from his normal workplace thoroughfare and which he visited for the apparent sole purpose of insulting, intimidating and demeaning Ms Struckett.

[311] On the evidence before the Commission, Link-Up submits that on the factors to be considered under s.387 of the Act, the Commission should find that the termination of Mr Ives was not harsh, unjust or unreasonable.

Remedy

[312] Link-Up submits that in the event the Commission determines that the dismissal was unfair, the following submissions as to the issue of penalty should be given due consideration.

[313] Link-Up submits that reinstatement of Mr Ives would be inappropriate for the following reasons:

“(a) Mr Ives has lost the trust and confidence of the CEO and the Board of Directors;

(b) That loss of trust and confidence would make it impossible to re-establish a working relationship given the size of the organisation and its reliance on employees working smoothly together;

(c) Mr Ives’ ugly attacks on Ms Thompson in his material filed in these proceedings renders impossible any prospect of his working under Ms Thompson;

(d) If Mr Ives was reinstated, the ability of Link-Up to retain Ms Struckett in her important employment would be significantly compromised;

(e) Given the adverse health consequences suffered by Ms Struckett as a result of the stress produced by Mr Ives’ conduct, Link-Up owes Ms Struckett a duty to take reasonable steps to protect her from further harm;

(f) It is difficult to see how those protective steps could confidently be undertaken if Mr Ives was restored to employment with Link-Up.”

Compensation

[314] Link-Up submits that any order for compensation should be modest because:

“(a) Mr Ives has obtained alternative part-time employment and also wishes to continue his studies;

(b) Mr Ives has admitted conduct which constitutes misconduct and that conduct, together with any other misconduct found by the Tribunal, should operate to reduce the amount of compensation which otherwise would be awarded, by operation of s.392(3) of the Act;

(c) In accordance with s.392(4) compensation is not payable for shock, distress or humiliation, as appears to be claimed by Mr Ives.”

Consideration

[315] I will address each of the criteria set out in s.387 of the Act separately.

s.387(a) - Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[316] The Respondent must have a valid reason for dismissing Mr Ives, although it need not be the reason given to the applicant at the time of the dismissal. 4 The reasons should be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”5 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.⁶

[317] To determine if there was a valid reason for Mr Ives’ dismissal relating to his conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by Mr Ives actually occurred. 7 It is insufficient for the Respondent to establish that it held a reasonable belief that Mr Ives dismissal was for a valid reason. The Commission must make a finding as to whether Mr Ives engaged in the conduct alleged against him on the evidence before it.8

The timing of the allegations

[318] Ms Struckett had been employed by the Respondent for a relatively short period of time. She did not work closely with Mr Ives, but had some interaction with him. On the evidence before the Commission, Ms Thompson had accommodated Mr Ives’ personal issues, including discouraging him from resigning his employment in late 2018 when he had expressed an intention to do so.

[319] On his return to work after several months off work, Ms Thompson agreed to have him transferred into a different area. He was promoted under Ms Thompson to the position of Acting Service Delivery Manager for a period of approximately nine months, and then on 16 April 2020 he was formally appointed to the position which he accepted in writing on 28 April 2020.

[320] This kind of conduct in accommodating, facilitating and promoting Mr Ives, together with earlier discouraging him from resigning does not reek of any agenda or program to remove Mr Ives from the organisation.

[321] What is clear is that while Mr Ives had acted in the role of Service Delivery Manager, and received a higher duties payment for doing so, Ms Thompson had no idea he was engaging in unacceptable conduct towards Ms Struckett. Mr Ives’ acceptance of the permanent Service Delivery Manager role was put into effect by him on 28 April 2020. Ms Thompson wasn’t alerted to his behaviour until 27 April 2020 when Ms Struckett formed the courage to let her know of some of the incidents. I accept Ms Struckett’s evidence that when she informed Ms Thompson of some of the conduct, Ms Thompson responded, “I never knew”.

[322] Even when Ms Struckett initially reported the behaviour, she described it as feeling uncomfortable to walk down the hallway to go to the ladies’ bathroom or to make a cup of coffee. She then later revealed the other incidents of unacceptable behaviour. Nobody should be made to feel the way Ms Struckett was made to feel in the workplace.

[323] Upon being informed of the allegations, Ms Thompson asked Ms Struckett how she wished for the Respondent to deal with them. Ms Struckett stated, quite maturely, that it could be dealt with in a soft way, or a hard way, and Ms Thompson permitted Ms Struckett to determine which path she preferred. Ms Thompson did not decide the course of action for her.

[324] Upon further incidents occurring on 30 April 2020, Ms Struckett resolved that something formal needed to be done about Mr Ives’ conduct.

[325] I am satisfied that there was no agenda against Mr Ives by Ms Thompson. She considered him to be a good employee and informed Mr Murphy of this fact. She did not know of the allegations against Mr Ives until Ms Struckett reported the allegations on 27 April 2020. Mr Ives was being promoted at this time.

[326] Having reviewed the email sent by Mr Pollard to Ms Thompson detailing his account of the investigation undertaken by him, I am not at all surprised by the actions of the Board, directing Ms Thompson to have a further letter of allegations put to Mr Ives. The email from Mr Pollard detailing the extent of the investigation was, regrettably, inadequate.

Determination of allegations

[327] I will use the grouping of allegations in the manner used in the show cause response.

Allegation 1

[328] On the evidence before the Commission, I am satisfied that in January 2020, in the lunchroom, Mr Ives said in reference to Ms Struckett that she can put a paper bag on her head and when adjusting the clock on the wall, he said in reference to Ms Struckett, “it can hit her on the head, I don’t care”.

[329] In Mr Ives’ show cause response he had admitted to saying, “it can hit her on the head”, but he denied saying “I don’t care”. During the hearing he agreed that he did say, “I don’t care.”I am satisfied that he made the statement about her putting a bag on her head as it occurred on the same day and I consider that Mr Ives’ campaign against Ms Struckett, somebody whom he did not know well, began on that day. He had determined that he would target Ms Struckett.

[330] Mr Ives’ contention that this was a jovial conversation is not demonstrated in the evidence. His evidence is that he had not had much to do with Ms Struckett in her short tenure of less than two months, other than greetings. His conduct on this day was rude, offensive and unnecessary. I agree with the Board’s finding that such conduct is offensive, disrespectful and intimidatory. Having regard to the Code of Conduct and harassment policy, I am satisfied that he repeatedly breached the Code of Conduct where referenced by the Respondent in its letter to him.

[331] This appears to have been the first occasion where Ms Struckett has complained of a workplace incident. I am satisfied that Mr Ives engaged in workplace harassment, but not in sexual harassment on this occasion. Given the definitions within the policy, the workplace harassment does not constitute workplace bullying as it was the first occasion. I am satisfied that Mr Ives breached some of his employment contract obligations by engaging in the above behaviour.

Allegation 2

[332] Allegation 2 includes the following statements alleged to have been said by Mr Ives to Ms Struckett in dates in February 2020:

• “I don't like you, I don't like the way you look, the way you dress and your name”; when Ms Struckett responded in words to the effect of: “are you judging me, as it is not good to judge people?”, further stated “I don't care”; and

• when passing Ms Struckett in the hallway, stated words to the effect of “it’s because I don’t like you” and when Ms Struckett asked why [Mr Ives] made such comments, stated words to the effect of: “I just don't like you, when I first saw you, I thought she looks like a bitch”.

[333] Mr Ives denied ever making the above statements. On the balance of probabilities, I conclude that Mr Ives did make the above statements. On the first occasion it was said in front of one other person (not interviewed), and on the second occasion it was said while walking down the hall. I conclude that Mr Ives was ramping up his attack on Ms Struckett, the first occasion where he knew that Ms Pemberton would not respond or react to defend Ms Sruckett as she had failed to do so in the lunchroom, and the second occasion in the hallway where nobody else was present.

[334] I agree with the Board’s finding that such conduct is offensive, disrespectful and intimidatory. I consider that Mr Ives was hoping that Ms Struckett would wilt, or concede her place in the organisation. I consider that he simply did not want her to be employed in the role in which she was. Only Mr Ives knows if the reasons he acted this way is because Ms Struckett is not Indigenous.

[335] Having regard to the Code of Conduct and harassment policy, I am satisfied that he repeatedly breached the Code of Conduct where referenced by the Respondent in its letter to him.

[336] I am satisfied that where Mr Ives said to Ms Struckett, “I thought she looks like a bitch” this constitutes sexual harassment. Mr Ives’ other statements to Ms Struckett constitute workplace bullying as by now, they were repeated comments. Further, I am satisfied that Mr Ives breached some of his employment contract obligations by engaging in the above behaviour.

Allegation 3

[337] The allegation put to Mr Ives was that on 19 February 2020, he sent to Ms Struckett a text that read: “Gumby 7:30am again tomorrow”. The text in fact reads:

Mr Ives: Homer, 7.30am start again tomorrow.

Ms Struckett: Homer?

Mr Ives: Sorry auto correct

[338] In my view, Mr Ives was maliciously playing with Ms Struckett when he sent this text to her. While it wasn’t put to Mr Ives, I consider that he was referencing Homer Simpson, a fictional character who is notoriously inept and uncoordinated. I consider that Mr Ives didn’t make an auto correct error at all, and when he was asked what Homer meant, he concocted the auto correct response.

[339] Only one minute earlier he had sent a text to Ms Pemberton which read, “Gumby 7.30am again tomorrow”. Ms Pemberton replied “nw” for no worries.

[340] Where the Board found this allegation proven, it’s clear that the allegation was not properly put, nor properly responded to, as nobody picked up that it was incorrect. I am not satisfied that allegation 3 is met.

[341] On the issue of Mr Ives’ understanding of the word “Gumby”, I do not accept his explanation offered. It is not, when used by Mr Ives, a friendly term. How it could be used when said to Ms Struckett referencing the clay animation programme from the 1950’s to the 1990’s has not been offered for explanation. Yes, it is true that there was such a programme, but how it is then used as a nickname towards Ms Struckett is not explained; there is no link.

[342] In his show cause response is it suggested that in native language, it could mean “Woman Woman Medicine” or “Medicine”. Again, Mr Ives has offered up no explanation as to why he would call Ms Struckett, “Gumby”.

[343] On the balance of probabilities, the only explanation for his use of the word is to describe Ms Struckett as somebody who is an idiot, or clumsy, or slow on the uptake. I have often heard this expression used in sporting teams, to describe somebody with less skill than others. I have also heard it used by individuals to self-deprecate; “I played like a gumby today”. I consider that there is no improper use of the word when it is said among like-minded friends, colleagues or teammates. However, when it is said about another person and offence is taken because it necessarily correlates with somebody who is not as skillful or not as knowledgeable as others, it is a slur.

[344] There would be no reason for Mr Ives to refer to Ms Struckett as Gumby. He had no idea how skilled she was in her area, and in fact was promoted within a short period from her date of commencement.

[345] While I note that he also sent a text to Ms Pemberton calling her Gumby, I have not been informed how familiar Ms Pemberton was with Mr Ives and whether she was offended by the name-calling.

Allegation 4

[346] The allegation is that Mr Ives ran his sweaty forearm along Ms Struckett’s arm, thereby covering Ms Struckett’s arm with sweat, and then laughed and walked away from Ms Struckett.

[347] It is noted that Mr Ives denied the incident in his show cause response. In his evidence before the Commission, he acknowledged that he is a big man and described himself as a person who sweats all of the time. In oral evidence he again denied the incident and agreed that if it occurred it would be repulsive and a breach of policy.

[348] The Board made a finding that Mr Ives did engage in the conduct alleged, and while repulsive, it did not constitute sexual harassment.

[349] On the balance of probabilities, I am satisfied that Mr Ives did engage in this conduct. On Ms Struckett’s evidence, this was done while Ms Struckett had just commenced packing up. On the balance of probabilities, I find that it did occur. I agree with the Board’s findings that it does not constitute sexual harassment, as I am not satisfied that he engaged in the conduct on the basis of his gender and Ms Struckett’s gender. It was not a sexually-based act; rather it was grotesque to exchange his sweat.

[350] Having regard to the Code of Conduct and harassment policy, I am satisfied that he repeatedly breached the Code of Conduct where referenced by the Respondent in its letter to him.

Allegation 5 and 6

[351] Mr Ives is alleged to have licked items of food and extended them to Ms Struckett and said, “here Anne” and “here, this is for you”.

[352] The Board made a finding that Mr Ives did engage in the conduct alleged, and while repulsive, it did not constitute sexual harassment.

[353] I appreciate that Mr Ives did not have before him Ms Struckett’s written complaint to the Respondent when he was asked to respond to the show cause letter. Ms Struckett’s complaint details that relevant to the kabana incident, she was coming and going out of the kitchen, and others had mostly finished. On the balance of probabilities, I am satisfied that Mr Ives did engage in this behaviour with the kabana in an attempt to intimidate and humiliate Ms Struckett. It was done when no others or few others were around. He acknowledges that he licked the kabana, but denies that he said “here Anne”. He repeated this evidence at the hearing. I do not accept his evidence, and I prefer Ms Struckett’s over Mr Ives’ denial.

[354] Mr Ives denies the cracker incident. I accept Ms Struckett’s evidence over Mr Ives’ denial, and note that his conduct is almost a repeat of his earlier attempt to humiliate her.

[355] I agree with the Board’s findings that it does not constitute sexual harassment, as I am not satisfied that he engaged in the conduct on the basis of his gender and Ms Struckett’s gender. It was not a sexually-based act; rather it was grotesque to intimate that Ms Struckett should eat something that he has licked.

[356] Having regard to the Code of Conduct and harassment policy, I am satisfied that he repeatedly breached the Code of Conduct where referenced by the Respondent in its letter to him.

Allegation 7

[357] It is alleged that Mr Ives said in reference to Ms Struckett, “I don’t like her” in front of others in a team meeting. Ms Thompson’s evidence is that he followed that statement with, “She’s trying to claim me as a relative”,“or as a cousie”. It seems that others laughed when Mr Ives suggested that she was trying to claim to be a relative of his.

[358] I consider that the comment was innocuous and said in a light-hearted manner and does not constitute a breach of the Code of Conduct, the harassment policy, or the employment agreement.

Allegations 8, 9, 10 and 13

[359] It is alleged that Mr Ives repeatedly called Ms Struckett Gumby, Dumbo and Simple. It is alleged he did this on occasions by going out of his way to come into her office.

[360] I am satisfied that Mr Ives repeatedly called Ms Struckett Gumby and Dumbo, but not Simple. I am satisfied that Ms Struckett went to confront Mr Ives on 30 April 2020 to discuss why he calls her Dumbo, Gumby and Simple, but she became flustered and could only mention Dumbo. I do not accept his account that his mumbled response is him saying, “Sorry” because he did not hear her. It is my view that he was confronted and asked why he calls her Dumbo, and he was saying sorry for calling her that.

[361] There is insufficient evidence before the Commission of Mr Ives calling Ms Struckett Simple.

[362] The Board concluded that on each occasion he said these names to Ms Struckett it was offensive and insulting, and said to demean and intimidate Ms Struckett. The Board rejected Mr Ives’ assertion that the words were said jokingly or were part of some sort of acceptable banter.

[363] I agree with the Board’s findings. I consider that Mr Ives was on a connived power trip in making effort to make derogatory comments to Ms Struckett. His conduct was repeated.

[364] Having regard to the Code of Conduct and harassment policy, I am satisfied that he repeatedly breached the Code of Conduct where referenced by the Respondent in its letter to him. I am satisfied the comments constitute workplace bullying as they were repeated comments. Further, I am satisfied that Mr Ives breached some of his employment contract obligations by engaging in the above behaviour.

Allegation 11

[365] Relevant to Mr Ives’ question of Ms Struckett if she knew how to use an excel spreadsheet, while she considered that the tone was a condescending tone, I am not satisfied that it was. I consider it is a reasonable question to ask of another colleague, especially a colleague who was relatively new.

Allegation 12

[366] Ms Struckett alleged that on a number of occasions in April 2020, Mr Ives made gestures towards her to indicate putting a box over her head. In his show cause response he conceded that on one occasion he did make that comment while he was walking down the hall. The allegation put was that he was at his desk and Ms Struckett was walking down the hall to use the bathroom.

[367] Mr Ives’ response is that both he and Ms Struckett laughed and he considered that to be workplace banter.

[368] I am satisfied that on at least two occasions, Mr Ives made gestures for Ms Struckett to put a box over her head. He did not have any such jovial relationship for it to be friendly banter. The Board determined that such conduct was offensive, disrespectful and intimidatory.

[369] Having regard to the Code of Conduct and harassment policy, I am satisfied that he repeatedly breached the Code of Conduct where referenced by the Respondent in its letter to him. I am satisfied the comments constitute workplace bullying as they were repeated comments. Further, I am satisfied that Mr Ives breached some of his employment contract obligations by engaging in the above behaviour.

Other conduct

[370] In the termination letter to Mr Ives, it was noted that he had not responded to the allegations that he had said to Ms Struckett, when she informed him that she had been a HR manager and had terminated people for acting the way he did, “I don’t care, bring it on”. During the hearing, Mr Ives denied making such a statement.

[371] The termination letter also pointed out that Mr Ives had not responded to the allegation that after having called Ms Struckett Gumby, he then said to her, “Don’t make me have to call you twice”. During the hearing, Mr Ives said that he could not recall saying that.

[372] I am satisfied that Mr Ives did make the above statements. The Board concluded that the conduct was an arrogant attempt to intimidate Ms Struckett, and to disrespect her request to cease the conduct. I agree.

[373] Having regard to the Code of Conduct and harassment policy, I am satisfied that he repeatedly breached the Code of Conduct where referenced by the Respondent in its letter to him. I am satisfied the comments constitute workplace bullying as they were repeated comments. Further, I am satisfied that Mr Ives breached some of his employment contract obligations by engaging in the above behaviour.

[374] Having regard to all the above considerations, I am satisfied that there was a valid reason for the dismissal; there were numerous valid reasons for the dismissal. The collective findings above demonstrate multiple occasions where Mr Ives’ conduct fell well short of what was expected and required of him.

s.387(b) - Whether the person was notified of that reason

[375] It is not disputed by either party that Mr Ives was informed of the reason for his dismissal in the letter dated 12 June 2020.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[376] It is disappointing that there are procedural deficiencies in the way the Respondent went about investigating the allegations and then making findings to determine dismissal. Clearly, the workplace investigation conducted by CMS was primitive and unsophisticated. The Board correctly determined that it should be abandoned. I am not satisfied that it did so because of the recommendations made by Mr Pollard; simply, it knew that it couldn’t rely on the investigation because no statements were made and it was a relatively complex matter with a large number of allegations.

[377] The show cause letter full of the allegations put to Mr Ives was precise and articulate, making clear to him all of the allegations he needed to respond to. However, it should never have been titled a show cause letter. It is necessary to first conduct an investigation, make findings, and then based on the findings, a show cause letter may follow. The Respondent took two actions in one which in my view is procedurally unfair and was prejudicial to Mr Ives.

[378] Nevertheless, Mr Ives was afforded a full opportunity to respond to the allegations. He was given additional time to do so when it was requested. He was ably represented at the time and his responses were given in full. I appreciate that Mr Ives’ preference would have been to have met with the Board; there is no responsibility for the Board to meet with an employee to have them hear first-hand his explanations.

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

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

[380] There is no positive obligation on an employer to offer an employee the opportunity to have a support person. The Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542] states the following:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”

[381] The only meeting Mr Ives had was with Mr Pollard as he conducted the workplace investigation, where he had his preferred support person. All other matters were dealt with by correspondence. Accordingly, this is a neutral consideration.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[382] Mr Ives was dismissed for misconduct and not for performance. I consider that this criterion is not relevant to my decision in this matter.

s.387(f) - Whether the Respondent’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[383] The Respondent is a relatively small organisation, and it does not have dedicated human resource management specialists. It engaged outside assistance and to some degree I consider that impacted adversely on the procedures followed, including titling the allegations letter as a show cause letter and dealing with it as such.

s.387(h) - Other matters

[384] I have had regard to Mr Ives’ age of 50 years and his reasonable length of service with the Respondent. I have particularly noted his unblemished work history with the Respondent.

[385] I have had regard to the fact that Ms Ives’ employment ended by way of her resignation on 27 May 2020 after a tense discussion with Ms Thompson where it seems, neither woman covered themselves in glory. Ms Thompson was, in my view, out of line to suggest that because Ms Ives is a “grown woman” she need not have a witness to their discussions. Equally, Ms Thompson was correct to feel aggrieved at Ms Ives’ continued slur on “white women” (but not Ms Struckett, it seems) coming into “black organisations” and attempting to have romantic relationships with “black men”.

[386] I am not satisfied that because Ms Ives’ employment ended in the manner in which it did, that it had any impact on the Board’s decision to terminate Mr Ives, whom both Ms Thompson and Mr Murphy had considered was a good employee up until the serious allegations were made by Ms Struckett in late April 2020, following a permanent promotion of Mr Ives.

[387] Equally, I’m not convinced that there was some cleansing initiated by Ms Thompson to remove people based on their suggestions that she had engaged in a criminal act by having other people declare that they were driving when she was guilty of a traffic offence. If individuals have such allegations to make, they should make them to the police. Further, there is no evidence before me that Ms Thompson orchestrated Mr Ives’ removal in Brisbane to instal her son into the position.

[388] I particularly note that Mr Ives’ suggestions that there was some form of conspiracy to have him removed from the organisation, at the instigation of Ms Thompson was not made out in his show cause response, and was made for the first time to the Commission. Further, Mr Ives’ detail of the Board of Directors, and some of the familial relations between Ms Thompson and Board Members, which I understand mean to suggest that there is some nepotism at play doesn’t appear to have played any part in the decision making of the Board, as there were no allegations against Ms Thompson, made by Mr Ives or any other person prior to Mr Ives’ dismissal.

[389] Curiously, despite Mr Ives’ contention that Ms Thompson wanted to have him removed, which I reject, he nominated events close to the end of his employment to demonstrate that he and Ms Thompson had a very good relationship; where she referenced the use of toilet paper rationing and the suspected brothel next door to the work premises. It does demonstrate to the Commission that Mr Ives and Ms Thompson did have some banter in the workplace where it seems, no offense was taken between them. That does not correlate, however, to Mr Ives’ relationship with Ms Struckett where there was no such familiarity, nor do I consider Ms Struckett was overly sensitive in her reaction to Mr Ives’ conduct towards her.

[390] I have had due regard to Mr Ives’ extensive training in the Code of Conduct and workplace harassment policy. His failure to meet his obligations contained within the documents can only rest with him, despite his failure, he says, to have read the documents.

[391] I am satisfied that the Respondent has not suggested that Mr Ives is a sexual predator, and I agree; it would be far too great a stretch to label Mr Ives so. However, his specific and targeted conduct towards Ms Struckett seems largely out of character for somebody who has worked in an Indigenous organisation for a reasonable period of time, working with both Indigenous and non-Indigenous workers. Objectively, Mr Ives appears to have taken a very early dislike to Ms Struckett, for no apparent reason. She did not provoke or antagonise him. She came into the organisation, did her job well, was promoted early on, yet the conduct Mr Ives engaged in towards her started within around two months.

[392] I have had regard to the fact that upon learning of Ms Struckett’s allegations, the Respondent reacted swiftly and firmly by standing Mr Ives down, which I consider to be a suitable response made by it. I have had regard to the impact of Mr Ives’ behaviour on Ms Struckett’s health and safety in the workplace.

Is the Commission satisfied that the dismissal of Mr Ives was harsh, unjust or unreasonable?

[393] I have made findings in relation to each matter specified in s.387 as relevant.

[394] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.⁹

[395] The matters for consideration in s.387(h) which might weigh in favour of a finding that the dismissal was harsh, include but are not limited to:

(a) Mr Ives’ length of service;

(b) Mr Ives’ unblemished employment history with the Respondent;

(d) Some procedural deficiencies in the Respondent’s investigation and show cause process

are, however, to be balanced against the seriousness of the reason why Mr Ives was dismissed.

[396] Though it is doubtless the case that the matters set out above will have some harsh impact on Mr Ives, they do not weigh so heavily when account is taken of the seriousness of the valid reason and the other matters that either weigh against a conclusion that the dismissal was unfair or are neutral, as to militate against a conclusion that the dismissal was not harsh. I am not satisfied that the dismissal was unjust, nor was dismissal disproportionate or otherwise unreasonable considering the misconduct engaged in by Mr Ives. The dismissal was not unreasonable.

[397] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of Mr Ives was not harsh, unjust or unreasonable.

Conclusion

[398] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Ives was unfairly dismissed within the meaning of s.385 of the Act. Mr Ives’ application is therefore dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 Edwards v Giudice (1999) 94 FCR 561, at [6] – [7]; Singh v Metro[2015] FWCFB 6711, at [14], [16], [26].

2 Crozier, In the matter of an application for Writs of Certiorari and Mandamus against the AIRC [2001] FCA 1031 at [15].

3 (2006) 155 IR 22 at [41].

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

5 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

6 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

7 Rail Corporation New South Wales v Vrettos (2008) 176 IR 129.

8 King v Freshmore (Vic) Pty Ltd[2000] AIRC 1019 at [24].

9 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

Mr Jason Ives v Link-Up (Qld) Aboriginal Corporation

[2021] FWC 1595

24 MARCH 2021

DECISION

s.387(b) - Whether the person was notified of that reason