Mr Kenneth Bowler v Northern SEQ Distributor -Retailer Authority T/As Unitywater
[2025] FWC 2852
•24 SEPTEMBER 2025
[2025] FWC 2852 FAIR WORK COMMISSION
DECISION Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Kenneth Bowler
vNorthern SEQ Distributor -Retailer Authority T/As Unitywater
(U2025/878)
COMMISSIONER DURHAM
BRISBANE, 24 SEPTEMBER 2025
Application for an unfair dismissal remedy – serious misconduct – no valid reason – dismissal found to be harsh, unjust and unreasonable – reinstatement awarded – continuity of employment and compensation for lost pay awarded
[1] Mr Keneth John Bowler had been an employee of Northern SEQ Distributor – Retailer Authority T/As Unitywater (Unitywater) since 2001. On 9 January 2025, following an investigation and show cause process, Mr Bowler was dismissed on the grounds of serious misconduct.
[2] The circumstances of Mr Bowler’s dismissal relate to his alleged conduct following the announcement that a newly appointed team member had been successful in obtaining a promotion to the position of Senior Sampling Officer (SSO).
[3] Mr Bowler submits that Unitywater did not have a valid reason for the termination of his employment, arguing in the alternative, that Unitywater’s decision to dismiss him was harsh, unjust and unreasonable. Mr Bowler seeks reinstatement to his former position, continuity of employment and compensation for lost pay.
[4] For the reasons outlined below I have not found that Mr Bowler’s conduct rose to the level of serious misconduct, nor have I found that Unitywater had a valid reason to dismiss him. Further, having considered all other relevant factors, I have determined that the decision to dismiss him was harsh, unjust and unreasonable. I have made orders for his reinstatement, continuity of employment and compensation for lost pay.
PROCEDURAL BACKGROUND
[5] Mr Bowler’s colleague, Mr Leslie Walsh was dismissed by Unitywater for similar alleged conduct in relation to the same set of circumstances. Mr Walsh has also filed an unfair dismissal application. The parties agreed that as both applications arise from broadly the same factual events, there would be common factual and legal issues arising in both matters. As such, the parties sought, and I agreed, that the matters be dealt with via a joint hearing, noting that each matter would be determined on its own merits. This decision will deal with Mr Bowler’s application only.
[6] Following an unsuccessful joint conciliation conference, both matters proceeded to hearing on 2 to 5 June 2025. At the hearing, Mr Bowler was represented by Mr Geoff Taylor, of the Australian Workers’ Union (AWU) and Unitywater by Ms Clare O'Connor of Counsel. Both parties filed written submissions and witness statements. Mr Bowler gave evidence in support of his application, as did Mr Walsh. The following witnesses gave evidence on behalf of Unitywater:
·Ms Amy Kelly (Human Resources Business Partner in the People, Culture and Safety business unit).
·Mr Kenan Hibberd (Executive General Manager People and Corporate Services).
·Ms Brareen Deo (Analyst).
·Ms Dawn Hadfield (Microbiology Supervisor).
·Ms Donna Nicholson (Laboratory Sampling Supervisor).
·Mr Jerome Somodio (Analyst).
·Ms Mikaela Pohlner (Senior Sampling Officer).
·Mr Russell Kerkow (Recycled Water Scheme Coordinator).
·Mr Walter Chitsike (Laboratory Chemistry Supervisor).
BACKGROUND AND EVIDENCE
[7] It is not in dispute that:
a) Mr Bowler was dismissed on 9 January 2025;
b) Mr Bowler was protected from unfair dismissal for the purposes of section 382 of the Act;
c) The 'Small Business Fair Dismissal Code' does not apply to Unitywater; and
d) The termination of Mr Bowler’s employment was not a case of 'genuine redundancy' for the purposes of section 385(d) of the Act.
[8] I am satisfied that Mr Bowler was protected from unfair dismissal at the time he was dismissed.[1]
Employment History
[9] Mr Bowler is 58 years of age. The evidence supports Mr Bowler’s submission that he has had 23 years of loyal and discipline-free service with Unitywater and its predecessors. Mr Bowler performed various roles for Unitywater, before being appointed to the role of Sampling Officer (level 3) in 2017. Mr Bowler’s employment at all material times was covered by the Unitywater Water Industry Indoor/Salaried Staff Employees Enterprise Agreement No. 3 (the Agreement). Mr Bowler had been a Workplace Delegate for the AWU, for over twenty years.
Employment relationship and relevant policies and procedures
[10] Mr Bowler’s contract of employment requires that he at all times complies with Unitwater’s policies and procedures, including in accordance with the standards of conduct set out in the Unitywater Code of Conduct (as varied from time to time).[2] Mr Bowler’s conduct was found to have breached:[3]
(a)Unitywater’s Code of Conduct (the Code) -
Principal 1: Integrity and impartiality
“In recognition of the public trust placed in Unitywater, you are expected at all times to:
(a) Conduct business in observance of the highest ethical standards
…
(c) Uphold the law as well as Unitywater policies and procedures
(d) Demonstrate a high standard of workplace behaviour and personal conduct; and
(e) Demonstrate respect for other Unitywater employees, officers and stakeholders.
(b)Discrimination, Bullying and Sexual Harassment Policy (the Policy)
Clause 4
It is the responsibility of all Unitywater team members, to ensure that the workplace is free from discrimination, bullying and sexual harassment.
Clause 5.1
It is the responsibility of all Unitywater team members to be professional in their own behaviour and respect the rights of other team members, clients and members of the community.”
[11] There is no dispute that Mr Bowler had attended a number of training sessions since 2018 that may have dealt with the relevant policies and that such training was undertaken through the completion of modules within the “ULearn” system. The parties disagree as to the adequacy of the training provided. Unitywater suggest that Mr Bowler’s completion of this training demonstrated that he had been trained in, and should have been fully aware of his obligations arising from the above policies.
[12] Unitywater did not lead any evidence as to the specific content of the modules completed by Mr Bowler, nor did they contest the evidence provided by Mr Walsh that:
·the training he received did not go through the relevant policies line by line; or
·that he could not recall that any of the scenarios described in the training related to the particular circumstances of this matter
[13] In closing submissions, Ms O’Connor submitted:
“There had, of course, been training in relation to these issues broadly. It's never possible to train someone on a specific scenario that might eventuate, but nor should it be necessary to provide any specific training about not making derogatory racial slurs about your manager. Not calling a colleague a liar in the middle of the office. I mean, those are things that are so obvious in my submission that whether or not training occurred, it would have been plainly obvious to each of these applicants that that's just not how they can operate in that environment.”
The SIS team
[14] The role of Sampling Officer (SO) is a part of the Sustainable Infrastructure Solutions (SIS) team. Prior to 7 November 2024, Mr Bowler was one of seven SOs, reporting to the Laboratory Sampling Supervisor, Ms Donna Nicholson. Ms Nicholson reported to the Laboratory Manager, Mr Habibur Rahman.[4]
[15] Given the circumstances of this matter, it is relevant to note that at the time, six of the seven team members were male, with an average age of “between 50 and 60” and that a number of them, including Mr Bowler had significant lengths of service with Unitywater. Again, in the circumstances, it is relevant that, in stark contrast to the rest of the team, Ms Pohlner was 24 years of age and was still in her probationary period, having only been employed by Unitywater for approximately six weeks.
Creation of the Senior Sampling Officer Role
[16] In or around October 2024, Unitywater advertised the newly created SSO role. The role was classified as a level 4. Importantly, the position description describes the SSO role’s key functions as assisting the Laboratory Sampling Supervisor with the “supervision and management of the activities of the sampling team members” and “training of staff, preparation of training programs and monitoring work outcomes”.[5] There is no dispute that the position was senior to the SO’s.
[17] Both Mr Bowler and Ms Pohlner submitted applications for the position and were selected for interviews, along with their colleague Mr Michael Ewin.
[18] It was Mr Bowler’s evidence that when the SSO position was announced, he thought his colleague Mr Ewin was a prime candidate for the new position, as he often stepped up when Ms Nicholson was away and was seen as a mentor to many sampling officers due to his years of experience. Mr Bowler contends that even though he had considered Mr Ewin was the most likely candidate for appointment to the position, he decided to apply to demonstrate to Unitywater that the SO’s saw the role as a serious promotional opportunity to aspire to in the future.
[19] During her oral evidence, Ms Kelly confirmed that the SSO position was advertised internally, and as such, only employees of Unitywater could apply. Mr Bowler maintained throughout the investigation, and his evidence, his understanding that probationary employees were exempt from applying for internally advertised promotional positions, and as such, he was under the impression that Ms Pohlner was ineligible to apply for the SSO role at the time.
Mr Bowler’s discussions with Ms Pohlner about the role
[20] At some time after the role was advertised, Ms Pohlner and Mr Bowler had a discussion in which Mr Bowler advised Ms Pohlner that he was aware that three people had been selected to be interviewed for the position. Mr Bowler offered up the information that both he and Mr Ewin were being interviewed and that he thought Mr Ewin would be the successful candidate.
[21] On 31 October 2024, Ms Pohlner recalls a further discussion with Mr Bowler in which the conversation turned to who the third person being interviewed might be. It is her evidence that Mr Bowler said words to the effect of “oh it can’t be you”. Ms Pohlner says that she did not correct Mr Bowler, choosing not to disclose to him that she had applied for the role or that she had been selected for an interview. Mr Bowler also recalls this conversation, however he recalls that the comment was founded in his understanding that Ms Pohlner was not eligible to apply, and he took her response as confirmation of such.
Ms Pohlner is announced as the successful candidate
[22] At 11:25am on 7 November 2024, Mr Rahman sent a team-wide message to the SEC Scientific Service team advising that Ms Pohlner had been appointed to the SSO role.
Conversation in the hallway
[23] Shortly after, Mr Bowler and Mr Walsh were overheard discussing the appointment in the hallway.
[24] It was alleged that in the presence of Ms Nicholson, Mr Kerkow and Ms Hadfield, Mr Bowler made the following “public accusations” that were aggressive, and exclusionary towards colleagues:
“I’m not fucking happy; she fucking lied to us. She’s only been here 6-weeks; she shouldn’t have gone for it.”
[25] Mr Bowler accepts that he and Mr Walsh did have a conversation in the hallway and that the discussion was animated due to the two men having just received the email notifying of Ms Pohler's appointment, which had taken them by surprise.
[26] Mr Bowler’s recollection is not significantly at odds with Mr Kerkow’s who recalls he heard Mr Bowler and Mr Walsh speaking loudly and that they made comments to the following effect:
(a) "Someone in there who's only been here for 6 weeks has got this role";
(b) "She lied to us";
(c) "We asked if she'd gone for it, she said she hadn't";
(d) "Not fucking happy";
(e) "She fucking lied to us";
(f) "She’s only been here 6 weeks, shouldn’t have gone for it"; and
(g) "There had been a recruitment process and Mikaela had lied about going for the role and Mikaela had got it".
Conversation with Ms Hadfield
[27] Shortly after Mr Bowler and Mr Walsh approached Ms Hadfield’s desk. Ms Hadfield’s desk is situated in close proximity to Ms Maddison McNee. The evidence of Ms Hadfield and Mr Kerkow is consistent to the extent that Mr Bowler and Mr Walsh appear to have continued to make statements similar to those listed above.
[28] Ms Hadfield recalls that Mr Bowler said to the room at large “I can’t believe it” before engaging her in a discussion with he and Mr Walsh about Mr Bowler’s interview, in which Mr Bowler is alleged to have said words to the effect that “I applied for the job to stop Sean getting it" and which ended with Ms Hadfield saying words to the effect of “ you shouldn’t say that, there was a process and an interview and the panel have made their choice”.[6]
[29] The conversation came to an end with Mr Bowler stating that he was going to lodge a grievance with the Union. At 12:01pm, Ms Hadfield sent an email to Ms Nicholson in which she states:[7]
“Hi Donna,
Just a heads up that Les and Ken B are not very happy at all. Les has said he is not helping her at all and Ken B is going to the union.
Just thought you should know. It is pretty sad really because Mikaela hasn’t done anything wrong.”
Conversation with Mr Walsh on the back deck
[30] It is Mr Kerkow’s evidence that shortly after, he was on the back deck having lunch with Mr Rahman. Mr Kerkow recalls that Mr Bowler was sitting approximately five meters away from them having a private conversation with Mr Walsh. Mr Kerkow was not a party to this conversation however he recalls overhearing both men making comments about Ms Pohlner’s appointment in an angry and aggressive tone.[8] Mr Kerkow could not recall who said what, but recalls overhearing the comment “If you’re the apprentice and you have a tradesman, you can’t give the apprentice the job”.[9]
Conversation with Ms Pohlner
[31] At around 12:30pm Mr Bowler approached Ms Pohlner’s desk and initiated a discussion with her. It is agreed that Mr Bowler commenced the discussion by congratulating Ms Pohlner on her appointment. Precisely what occurred during the rest of the conversation however is not agreed. What is not in dispute is that Mr Bowler expressed to Ms Pohlner his surprise that she had been appointed to the role, given she had led him to understand that she had not applied. Mr Bowler says that it was against this backdrop that he expressed his feeling that Ms Pohlner had lied to him.
[32] The witness evidence varies with respect to several key elements of the interaction, including where Mr Bowler and Ms Pohlner were physically situated, and who observed the interaction.
[33] Ms Deo suggests that “Ms Pohlner was sitting down and Mr Bowler was standing up, so he was standing over her”. Mr Chitsike similarly recalls Mr Bowler standing.
[34] Ms Nicolson’s evidence suggests that Mr Bowler was sitting, and didn’t stand up until the conversation ended. It is Ms Pohlner’s evidence that she was sitting at her desk when Mr Bowler wheeled his chair over to her. Whilst it was Ms Pohlner’s evidence that she felt trapped between him and the hallway, she agrees that he did remain seated during the conversation.
[35] In addition to the question of whether or not Mr Bowler was standing or seated, there are other clear differences in the witness evidence. Ms Deo recalls hearing Mr Bowler say “you are a liar” and “you know there will be consequences”. Mr Chitsike recalls overhearing “words along the lines of….you lied to me before the interview” and “the unions have been contacted”. Ms Pohlner’s statement suggests that Mr Bowler made the following comments to her:[10]
·'Congratulations. You and I have a problem now';
·'You know there will be consequences';
·'You told me you didn't apply';
·'You've lied to me';
·'You are going to have a terrible time'.
·'The unions have been contacted already'; and
·'We'll be taking this further'.
[36] It is clear that the conversation was held in the presence of Ms Deo, however the evidence varies as to what Ms Nicholson observed. It was Ms Deo’s evidence that about 30 seconds after the conversation started, Ms Nicholson approached and stood within one metre of Mr Bowler, but did not say anything.[11] During cross examination, Ms Deo confirmed that Ms Nicholson was present for the majority of the conversation and would have overheard what was being said. When asked if she thought it was odd that she didn’t intervene, Ms Deo replied, “yeah, maybe a little bit. Yep”. It was Mr Chitsike’s evidence that Ms Nicholson arrived “within two minutes of the interaction starting and that she “pulled up a chair and sat next to them”.[12] Ms Nicholson however, says that she only approached at the end of the conversation, and asked “what’s going on”.
[37] The evidence suggests that the whole interaction lasted around five minutes and ended when Mr Chitsike, who was at his desk, several meters away, said words to the effect of “can you take this conversation elsewhere”.[13] It is Ms Nicholson’s evidence that she then said to Mr Bowler “come on, let’s stop this”.[14]
[38] In any event, there is no dispute that the discussion ended at this point. Again, there are differing recollections as to whether Mr Bowler and Ms Nicholson then went straight to Ms Nicholsons desk, or whether they went to their respective desks. Mr Chitsike recalls them going directly to Ms Nicholson’s desk, however Ms Nicholson recalls them going back to their respective desks until, a short time later, Mr Bowler approached her desk, where another short conversation took place.
[39] It is agreed that Mr Bowler advised Ms Nicholson that he was going to lodge a grievance with the Union for the purpose of “recording their displeasure with the SSO recruitment process”. It is Ms Nicholson’s evidence that Mr Bowler then asked that he and Mr Walsh not be put on “runs” with Ms Pohlner, to which Ms Nicholson “replied with words to the effect that I was not playing that game and that the schedule was too full for me to have to wrangle who is getting along with who”.[15]
[40] Around this same time, Ms Deo says she assured Ms Pohlner that Mr Bowler “was not a bad guy” stating “you don’t need to be scared, he’s a pretty friendly guy, he’s just frustrated that you got the senior sampling job”.[16]
Ms Nicholson’s conversation with Mr Rahman
[41] It is Ms Nicholson’s evidence that later that day, during a catch-up meeting with Mr Rahman before he went on leave, she advised him of her view that Mr Bowler had acted inappropriately in response to the SSO announcement, but also that she “hoped they would simmer down”. Ms Nicholson says that Mr Rahman advised her that if she needed any help, she should go straight to HR.
Ms Pohlner’s conversation with Ms Nicholson
[42] At around 4:00pm that same day, Ms Pohlner approached Ms Nicholson to advise she had to drop her vehicle off for a service the following morning and that Mr Bowler was the only team member available to pick her up and drive her to the office. Ms Nicholson said to Ms Pohlner, “he’ll be ok”. Ms Nicholson and Ms Pohlner then confirmed the arrangement with Mr Bowler, who Ms Nicholson says, made what she considered a joking “eye roll type expression” before confirming that he would pick her up.
[43] It is Ms Pohlner’s evidence that she was concerned for her safety and made arrangements with Ms Emily Ballard, Graduate, to be on “standby” for her call during the period that she was travelling with Mr Bowler so that “if he started berating me the way he had earlier that morning I would ask him to pull over, get out of the car and call Ms Ballard to pick me up”.[17] Ms Ballard did not give evidence in this matter but was interviewed as a part of the investigation. It is of note that there is no mention of this interaction with Ms Pohlner in Ms Ballard’s record of interview.[18]
Conversation in the carpark
[44] Ms Pohlner says that later that same day, as she was walking through the carpark towards her vehicle, she observed Mr Bowler having a discussion with Mr Walsh and Mr Howden. It is her evidence that Mr Bowler was “retelling the events from earlier that day”. It is Ms Pohlner’s evidence that as she approached her vehicle, Mr Bowler said words to the effect of “she lied to me”. Ms Pohlner also claims that Mr Bowler “continued to share his views about me in the carpark as she drove off”. Mr Bowler disputes this, and questions how Ms Pohlner could know what was being said in a conversation she did not hear.
Conversation with Ms Pohlner in the Vehicle
[45] The following day Mr Bowler and Ms Pohlner were travelling in a vehicle together. It is Ms Pohlner’s evidence that after initially apologising if he had made her feel uncomfortable during their discussion the day before, Mr Bowler went on to make further remarks about her appointment to the role.
[46] It is Ms Pohlner’s evidence that during the trip she felt “very intimidated and anxious” and that Mr Bowler was attacking her personal and professional capabilities.[19] Mr Bowler disputes this and maintains that his intention had been to take the opportunity to explain to Ms Pohlner why he and the others were upset, and to reassure her that it was not personal, as their concerns were with the process, not her.
[47] Ms Pohlner recorded the conversation in the vehicle on her work mobile phone. She did not advise Mr Bowler that she was recording the conversation and Mr Bowler was not advised of the existence of the recording until it was referenced in the witness statement Ms Pohlner filed in this matter.
[48] Ms Pohlner’s statement suggests that she turned her phone to video, pressed record and then put the phone in her pocket “in case I needed a record of anything that Mr Bowler said to me”. During cross examination Ms Pohlner was asked why she thought she might need to record what Mr Bowler said to her, Ms Pohlner responded that it was a highly stressful situation for her and she wanted to be able to produce an accurate record of what was said. When pressed on why she got in the car if she was so stressed, Ms Pohlner indicated that she wanted to try and continue with daily duties without interrupting the workload.
[49] When asked why she chose to make the recording rather than simply choosing to not get in the vehicle, Ms Pohlner indicated that she did not want Mr Bowler to know that he had intimidated her, and wanted to get on with it, but also wanted to take “safety precautions”.
[50] As will be addressed later in this decision, the substantiated allegations put to Mr Bowler were drawn from Ms Pohlner’s recollections as recorded during her 14 November 2024 interview and describe a range of statements that Ms Pohlner says were made during this conversation, including Mr Bowler “trying to cover his tracks, alternating between being intimidating and saying there would be consequences and then offering help”.[20] Ms Pohlner’s statement however is significantly more pointed, suggesting that she felt very intimidated and anxious and that Mr Bowler was attacking her personally and professionally.[21]
[51] When Ms Pohlner was pressed on the impact of the recording on her recollections of the conversation, as recorded in the record of interview. Ms Pohlner remained steadfast in her view that she had not listened to the recording, or otherwise transcribed it, other than to check her recollections.
[52] Following the interview however, Ms Pohlner provided a follow-up email to Ms Kelly in which she states, “further to this, I have recalled a few more details worth mentioning” before detailing additional comments that Mr Bowler was said to have made. Mr Bowler notes, that many of these additional comments appear to very closely resemble the wording of the recording.
Ms Nicholson’s communication with Mr Bowler and Ms Pohlner later that day
[53] Later that evening, Ms Nicholson, who had been on leave that day, sent a text message to Mr Bowler inquiring as to how the day had gone. Before Mr Bowler had replied, Ms Nicholson placed a call to Ms Pohlner for the purpose of checking in with her to see how she was going after the interaction the day before.
[54] It is Ms Nicholson’s evidence that during this conversation, Ms Pohlner advised her that Mr Bowler had made a “wishy washy apology” but had still called her a liar and accused her of avoiding confrontation.[22]
[55] Later that evening, Mr Bowler responded to Ms Nicholson’s text message, with the following:[23]
“this has really messed things up…Les is still very upset. Mike is quiet. I tried to
explain thinks (sic) to Mikaela on the way in this morning but I can tell she’s not interested in discussing the work environment…she does the same thing my daughter does, gazing off into nowhere…I didn’t want this for our “family” but I wonder if we can come back from here…I know its (sic) not what you want to hear but I think the general consensus is, we’ve been betrayed..habib did ask me months ago to keep positive as the guys feed off my moods but now I have egg on my face because I stood up for him…just have to wait and see how it plays out…we will all be respectful but that’s all I can say at this time”
11 November 2024
[56] At around 7:00am on 11 November 2024, Ms Nicholson and Mr Bowler had a conversation in the carpark. This was the first time that the two had spoken since the announcement on the 7th as Ms Nicholson had been away on the Friday. It is Ms Nicholson’s evidence that during this conversation Mr Bowler made the following comments:
·Us 50 year old men are a dying breed, its rampant across Unitywater, I’ve seen it
everywhere, they’re only hiring young women;
·I’m not going above and beyond anymore, I’m just doing my job and going home;
·Habib is going to get a mouthful from me when he returns.
[57] Mr Bowler recalls these conversations, but disputes precisely what was said, the way it was said and the intention behind his comments. In his 21 November 2024 response, Mr Bowler provided the following statement regarding this interaction:[24]
“In Closing, some of these comments were made to Donna only on the Monday morning as having a conversation with her seemed like the right thing after the out of hours text she sent asking about the atmosphere on Friday with regards to the team and Mikaela. I felt a one on one explanation to my supervisor was necessary. I simply spoke to what I, and many others see within Unity Water. I see diversity choices all the time. I again said to Donna I don’t have an issue with women in the work force and again nobody can do her job better than her, Toni and Anita with their positions. If I had an issue, why would I still be here? Working in the lab with predominately women for the last 7 years”.
Ms Nicholson seeks assistance from Unitywater’s Human Resources Department
[58] At 2:22pm that same day, Ms Nicholson sent a Teams message to Ms Jess Larkin and Ms Kelly in HR. the message read as follows:[25]
[59] It is Ms Nicholson’s evidence that at 2:44pm she received a call from Ms Kelly. Following the conversation, Ms Kelly asked that she send her concerns via email so that she could see them in writing.
[60] At 3:50pm Ms Nicholson sent the following email to Ms Kelly:[26]
12 November 2024
[61] The following morning, 12 November 2024, Ms Kelly arranged a meeting with her colleagues Ms Zoe Penman and Ms Larkin, in which it was agreed that Ms Kelly would “run an investigation into Mr Bowler’s alleged behaviour as outlined in Ms Nicholson’s email”.
[62] At around 12:30pm that same day, Ms Kelly called Ms Pohlner to advise that she was aware of some concerns regarding the conduct of Mr Bowler and his colleagues. Ms Pohlner was advised that if she had any concerns, they should be put in writing and would be dealt with under Unitywater’s usual processes. It is Ms Pohlner’s evidence that Ms Kelly also said to her words to the effect that:[27]
“(a) What I had experienced was a big deal. Unitywater did not condone that kind of behaviour. Was I ok?
(b) There were three options available to me to deal with the situation. The first was to have a conversation with Mr Bowler directly about his conduct. The second option was to have a conversation with Mr Bowler and Ms Nicholson about Mr Bowler's conduct. The third option was for me to make a formal complaint.”
[63] Shortly after this discussion, at 12:44pm Ms Larkin sent a Teams message to Ms Nicholson seeking a time for a discussion. At 1:44pm Ms Larkin advised that Ms Kelly would reach out to her later that afternoon, and would be “working from the Labs tomorrow to support”. The exchanges read:
[64] Ms Nicholson does not reference the above exchange in her statement. Rather, Ms Nicholson suggests that it was not until 5:25pm that same day, that she received a call from Ms Kelly advising that Ms Pohlner had made a formal complaint, and a formal investigation would be undertaken. At 5:33pm, Ms Nicholson says she received another call from Ms Kelly, in which Ms Kelly confirmed that Mr Bowler and two of his colleagues were each required to attend a meeting the following day with Mr Basterfield, Executive Manager Sustainable Infrastructure Solutions, at which both men would be stood down. Ms Nicholson was asked to make arrangements for Mr Bowler and his colleagues to be in the office in time for their scheduled meetings.[28]
[65] Ms Pohlner says that she decided she should make a formal complaint because she considered that Mr Bowler and his colleagues were not likely to change, unless she took steps to stop it. At 6:21pm that evening Ms Pohlner’s sent Ms Kelly an email confirming that she wished to make a formal complaint. Attached to this email was a copy of her “SSO Minutes” document, which she says was a contemporaneous record of the events over the past few days. Curiously, this email was sent more than an hour after Ms Kelly advised Ms Nicholson that a formal complaint had been received, and around 4 hours after the above Microsoft Teams messages were exchanged between Ms Larkin and Ms Nicholson in which the decision to stand Mr Bowler down had already been made.
Mr Bowler is stood down
[66] The following day, 13 November 2024, Ms Nicholson called Mr Bowler to advise him that he was required to attend a meeting with Ms Kelly and Mr Basterfield, at 10:40am that same day. Mr Bowler was advised that he did not need to bring his union representative to the meeting.[29]
[67] At the meeting, Mr Bowler was provided a letter titled “Private and confidential – Stand Down Advice”. The letter confirmed that as a result of receiving a “report of serious concern” Mr Bowler was stood down on full pay until the matter was resolved and that Ms Kelly would be in contact to discuss next steps in the process.
The Investigation
[68] It is Ms Kelly’s evidence that around midday, she participated in a Teams meeting with Ms Larkin and Ms Maddy Ballan, People Advisor, in which they commenced the process of drafting the allegation letter to be put to Mr Bowler, “based on the complaints received by Ms Nicholson and Ms Pohlner”.
[69] Between 13 and 14 November 2024, Ms Kelly conducted interviews with employees who may have witnessed the events the subject of the complaints. The evidence suggests that each of the interviews were conducted by way of the interviewee being asked a series of prepared questions. The questions asked varied depending on the event the interviewee was thought to have witnessed, but most included variations of the following:[30]
·Do you recall witnessing any inappropriate behaviour on …….
·Have you witnessed or heard any inappropriate behaviours since?
·Who else witnessed it?
·What did you do?
·Can you describe any behaviours observed that could be seen as repeated, intimidating or undermining?
·Have you personally observed exclusionary behaviours, such as ignoring greetings or comments that could be interpreted as undermining?
[70] During the interviews, Ms Kelly took handwritten notes, which she later formatted as a record of interview. It is of note that the responses are not recorded against a corresponding question, rather, they are simply provided as a list of dot point statements and observations.
[71] Having concluded the interviews, Ms Kelly sent each interviewee a copy of their record of interview, seeking they confirm its accuracy. Several of the interviewees provided amendments, which were made as requested.
Ms Pohlner’s Interview
[72] Ms Pohlner’s interview was conducted at 2:00pm on 14 November 2024. Ms Pohlner’s interview appears to have been conducted in a similar format to the other interviewees.
[73] Ms Pohlner was asked the following questions:[31]
“- How did Ken’s comments during the car ride on 31/10 impact you, and did you express any discomfort at the time?
- Can you describe the situation on 7/11 when Ken called you a “liar,” including the reactions of others who witnessed the incident?
- On 8/11, while in the same vehicle - how long were you in the vehicle for? Did you record the conversation?
- Have you encountered exclusionary behaviours from team members prior to your appointment in the role of Senior Sampling Officer? (e.g., ignored greetings, reluctance to collaborate)?
- Did any team members, besides Ken, make statements or insinuations that you should not have applied or accepted this role?”
[74] At 7:57pm Ms Kelly sent Ms Pohlner a draft record of her interview. At 10:05pm, Ms Pohlner replied as follows:[32]
“Hi Amy,
I’ve made a couple minor changes/updates to this, I’m not sure if some needed to be separate.
Further to this I have recalled a few more details worth mentioning:
……..
-In the car trip on 8/11, KB also made negative comments about the HR department itself. There was a comment “I’ve got the dirty on Habib, I’ve got the dirty on Donna and I’ve got the dirty on HR – but they have never been worth pissing on”. He also referred to Habib saying “I’ve been here to bloody long to let him walk all over me”. In this same journey he also recounted a story to me about a confrontation he had with a Jess from HR one day when she was down at the labs, stating that she had been employed over 12 months and how come he had never met her, he is the union delegate and he again exercised his ounce of free advice telling her to “be seen, otherwise you are just a name on the computer screen”.
-Another awkward encounter I had with KB in the first few weeks I started, we were drinking water sampling together around the Wamuran/Elimbah/Woodford area and encountered Jon Parkinson? (I’m not exactly sure of his last name but Donna would know who this is) at a reservoir we were sampling. KB pulled up the vehicle we were in alongside Jon’s and proceeded to introduce me to Jon saying this is our new hire, Jon was very quiet and then we drove off. After this KB told me that Jon had applied for my initial sampling role and that the “boys” had tried to get him the job because his wife was sick and child had a disability and he has worked for Unitywater for years. He told me Jon is usually upbeat and has a smile which further added to the feeling of me taking his job away from him. I felt as though KB was guilt tripping me for being successful in this initial role and he made comments about the company only wanting to hire young females. He has also said several comments criticizing women in leadership roles being for statistics only, that there are no opportunities for a middle aged white male anymore and has made his disapproval of the CEO obvious in conversion to me referring to things like how much she earns/what she gets as a bonus that is released in the financial report.
Feel free to contact me if this needs clarification or discard any of my edits that need to go into a new document.”
[75] Having received this email, Ms Kelly adjusted the record of interview to incorporate elements of additional information now recalled by Ms Pohlner. As a result, several additional allegations were added to the allegation letter being drafted by Ms Kelly.
[76] On 15 November 2024, Ms Kelly sent an email to Mr Bowler titled “formal meeting notification – Monday 18 November”. The letter required his attendance at a meeting with Ms Kelly and Mr Basterfield to discuss the next steps in the process.
18 November meeting and allegation letters
[77] On 18 November 2024, Mr Bowler attended a meeting during which he was handed a letter advising him that the “workplace concerns” were now being formally investigated in line with Unitywater’s Grievance Procedure.[33]
[78] Attached to the letter as “Schedule A” was a list of the allegations concerning Mr Bowler’s “conduct as a Sampling Officer”.
[79] The allegations were grouped under the following broad headings:
· Allegation 1: Intimidating and Unprofessional Behaviour
“It is alleged that on or around 12:30pm on Thursday, 7 November 2024, at the Southern Service Centre, Mr. Kenneth Bowler, Sampling Officer, made a number of comments to Ms Mikaela Pohlner in an intimidating, public, confrontational and unprofessional manner, in the presence of witnesses, including Mr. Walter Chitsike, Ms. Brareen Deo and Ms. Donna Nicholson, saying words to the effect of:
· “You and I have a problem now; you know there will be consequences.”
· “You told me you didn’t apply; you’ve lied to me; you are going to have a terrible time.”
· “The unions have been contacted already; we’ll be taking this further.”
· Allegation 2: Public and Unprofessional Comment
“It is alleged that on or around 2:30pm on Thursday, 7 November 2024, in the car park at the Southern Service Centre, Mr. Kenneth Bowler, Sampling Officer, made a public comment in a loud voice, saying words to the effect of:
· "She lied to me."
This statement was allegedly made in the presence of Mr. Leslie Walsh, and Mr. Wayne Howden while Ms. Mikaela Pohlner, Senior Sampling Officer, walked across the car park to her Unitywater vehicle.”
· Allegation 3: Intimidating, Demeaning and Unprofessional Conduct
“It is alleged that on or around 6:30am on Friday, 8 November 2024, during a car journey between Nova Ford and the Southern Service Centre, Mr. Kenneth Bowler, Sampling Officer, made the following statements to Ms. Mikaela Pohlner, Senior Sampling Officer, in an intimidating and demeaning manner:
· "I didn't mean to stand over you or intimidate you, but you've stirred up a hornet's nest."
· "There would be ramifications for your actions, and these ramifications are going to help you grow as a person."
· "You've ruined Mike's career progression as they're old and injured, and this role was all that was left for them in Unitywater, and you've come in and taken that away from them."
· "Don't let the position go to your head. You're going to have a fucking shit of a time with the rest of the boys. You are going to have a hard time."
· "You don't like confrontation. Donna is exactly the same, but I do, so wind me up, put me in a room, and I'll go off."
· "The boys are ropable."
· "I'm going to have to deal with the angry man (referring to Leslie Walsh)."
· Allegation 4: Intimidating, Demeaning and Unprofessional Conduct.
“It is alleged that on 7 November and 11 November 2024, at the Southern Service Centre, Mr. Kenneth Bowler, Sampling Officer, made the following statements, described as public accusations, aggressive, exclusionary remarks, toward colleagues, including Ms. Mikaela Pohlner, Senior Sampling Officer, and others, in the presence of colleagues, including Ms. Donna Nicholson, Mr. Russell Kerkow and Ms. Dawn Hadfield.
On 7 November 2024:
· “I’m not fucking happy; she fucking lied to us. She’s only been here 6 weeks; she shouldn’t have gone for it.”
· “I only applied for the job to stop Sean from getting it.”
On 11 November 2024:
· “I don’t think we should be training her”.
· “When Habib gets back, he’ll get a mouthful from me”
· Allegation 5: Discriminatory, Demeaning and Unprofessional Conduct
“It is alleged that between 7 November and 11 November 2024, at the Southern Service Centre, Mr. Kenneth Bowler, Sampling Officer, made the following undermining and gender-based statements in the presence of witnesses, including Ms. Donna Nicholson and Ms. Mikaela Pohlner, potentially demonstrating discriminatory and unprofessional attitudes towards women in leadership and directly undermining Ms. Mikaela Pohlner, Senior Sampling Officer:
· “We have a woman CEO, women managers are afraid of conflict and are soft.”
· “Women are in leadership roles for statistics only.”
· “They’re only hiring young women.”
On 8 November 2024, via text message to Ms. Donna Nicholson:
· “She’s not interested in discussing the work environment. She does the same as my daughter, gazing off into nowhere.”
[80] Mr Bowler was advised that these matters may constitute breaches of his employment agreement, the Code and the Policy. Mr Bowler was required to respond to the allegations in writing by 20 November 2024 and invited to attend a further meeting with Ms Kelly and Mr Basterfield on 25 November 2024. It was noted that Mr Bowler could bring a support person to the meeting.
[81] On 21 November 2024, Mr Michael Anderson, Organiser with the AWU, provided a response on behalf of Mr Bowler. Mr Anderson noted that the AWU had sought an extension until 22 November 2024, to enable them to assist Mr Bowler to provide a comprehensive and thorough response. An extension to the 21st was granted. Mr Anderson noted that Mr Bowler’s response would not be as comprehensive as it could have been had they been given a “reasonable amount of time in which to work with him to provide a written response”.
[82] In short summary, the response noted that Mr Bowler understood the seriousness of the allegations. Mr Bowler denied making many of the statements attributed to him and provided his explanation of what he believed he had said and why. The response expresses Mr Bowler’s concern that his words appear to have been interpreted in a way that suggests he was being intimidating, unprofessional and demeaning. The response also highlights Mr Bowler’s view that the issues at the heart of this matter related to the process, not the person, stating:[34]
“This recruitment would have been seen as unfair regardless of what gender the successful applicant identified as, seeing as the successful applicant had only been employed for approximately 2 months and was still on probation in a Level 3 role. In addition, we were asked to train the successful applicant who was deemed to be the most suitable. For some, that was very devaluing as an employee, especially long-serving employees with extensive experience and knowledge.
It had always been that a person can’t apply for another position while still on probation. This is the way it’s always been in the past or the policy changed, and we haven’t been informed”.
[83] Mr Bowler acknowledged that he needed to “work on his delivery” and apologised for causing Ms Pohlner distress, noting that “it was never his intention to harm anyone, especially Ms Pohlner”.
Mr Bowler’s Interview
[84] On 25 November 2024, Mr Bowler, supported by Mr Anderson, attended an interview with Mr Kelly and Mr Basterfield. During the interview, Ms Kelly took handwritten notes, which she later formatted as a record of interview. Mr Bowler’s record of interview follows the same format as other interviews conducted. Under the heading “Questions” is a list of the specific questions asked.
[85] The record of interview indicates that Mr Bowler was asked the following questions during his interview:[35]
·As part of allegation 1 - you've not denied you publicly confronted Ms Pohlner about the outcome of the recruitment process and that you thought she had lied to you. The witnesses presented in the allegation have also provided statements to the effect of what has been described in allegation. Is there anything further you'd like to add?
·The recruitment and selection process at UW is confidential for everyone's wellbeing. Why do you think everyone was entitled to know who was applying for the position?
·Do you recall entering Ms Pohlner’s personal space by 'leaning in' when discussing the outcome in the office?
·What was your intent when you said she will have a terrible time?
·Can you please clarify if you were/weren't upset - and what you were upset with.
·What was your intent when you said to Ms Pohlner that "the unions have been contacted, we'll be taking this further”, or words to that effect?
·If you were aware of potential behaviour, or aware enough to give Ms Pohlner a 'heads up', what steps did you take to address behaviours or actions that she would need a heads up on?
·What do you mean by 'old school'?
·When you said I'm sorry about the other day, I didn't want to seem overpowering, this whole thing has stirred up a hornet's nest". What behaviour were you referring to that you had reflected on and thought may have been overpowering?
·You mention in your capacity as a union delegate that you can be straight to the point. Would you say your behaviour remains in line with the Unitywater behavioural expectations?
·When you stated "there may be ramifications through the process." - what was your intent?
·Why did you advise Ms Pohlner that this incident has upset everyone? What did you hope to gain? What were you expecting MP to do?
·What was your intent with "I’ll deal with the angry man or I'll have to deal with the outfall now"?
·Can you explain what you mean by "people getting positions based on merit and not what appears to be just a diversity choice. And I see diversity choices all the time" - can you give me an example of a process where you believe the outcome was a diversity choice?
·Can you tell me what you meant by 'we have a woman CEO and we have adopted a soft approach'?
·When you state in your written response that you "understand the need for change and the reason changes must be made and I have always been willing, long before it became a 'thing,' to encourage diversity and growth ... do acknowledge that some of my choices of words have been taken as being against that progress and for that I am sorry" - how else do you think these statements could have been interpreted? How did you intend for them to be taken?
·You acknowledge you need to work on your delivery - how do you intend to do that?
[86] As with other records of interview, Mr Bowler’s answers are not recorded next to the questions asked, rather the record of interview lists a number of dot points summarising Mr Bowlers responses.
[87] Having reviewed the draft record of his interview, Mr Bowler sent Ms Kelly a marked up version, highlighting a number of additions and amendments. Mr Bowler also requested the following paragraph be added above his declaration:
“Due to the perceived severity of this matter, I would appreciate my comments and concerns be accurately portrayed. I know this isn’t a transcript of the meeting but to someone with no prior knowledge, reading this, as is dictation, they could very well get a misunderstanding of what has actually transpired. There isn 't much point having these meetings if my intent is consistently altered from what I am trying to convey. Please read in conjunction with my allegations reply.”[36]
Investigation Report
[88] Having undertaken one interview with each witness, Ms Kelly moved to finalise her investigation report. The report notes that it arises from a complaint made by Ms Pohlner alleging inappropriate conduct against several co-workers and captures the outcomes of an “evidence-based investigation” which had been conducted to identify any concerns arising from potential breaches of the Unitywater Code of Conduct, policies, procedures, guidelines etc.
[89] The report substantiated all five allegations and under the heading, “Final Summary and Key Conclusions” confirmed that Mr Bowler had been found to have “behaved in an intimidating, unprofessional and discriminatory manner on multiple occasions”. The report then goes on to discuss a range of further matters, and what could best be described as observations of the investigator, including:
· “That whilst Mr Bowler had acknowledged he had made certain statements (undefined) the investigator could not accept Mr Bowler’s insistence that he had not made them with the intent of being intimidating, demeaning or unprofessional”;
· “That Mr Bowler had continued to maintain the view that his behaviour towards Ms Pohlner was appropriate because he felt he had been lied to”; and
· “That he felt it was appropriate for Ms Pohlner to be aware that a grievance had been raised relating to the recruitment process”.
[90] The report then makes the following additional findings:
“Mr BOWLER’S alleged conduct between represents a sustained and deliberate pattern of behaviour intended to demean and undermine Ms POHLNER’s authority and credibility in her new role as Senior Sampling Officer. This includes:[37]
1. Repeated Public Demeaning of Ms POHLNER:
· Statements such as “she fucking lied to us” and “she’s only been here 6 weeks; she shouldn’t have gone for it” publicly question Ms POHLNER’S integrity, qualifications, and suitability for her position.
· These remarks foster distrust and discredit Ms POHLNER. making it difficult for her to establish authority and leadership in the role.
2. Exclusion and Intimidation:
· Comments like “I don’t think we should be training her” and “she should know this” discourage team collaboration and support, isolating Ms POHLNER from her colleagues and creating barriers to her success.
· Comments made in an isolated environment. As confirmed by Mr BOWLER:
i.“There may be ramifications through the process”.
ii.“It seems you are non-confrontational, Donna is similar,” “for me, being a Union Delegate, I’m used to debating issues and concerns.” “Put me in a room, wind me up and off I go.”
iii.“Generally, I feel this incident has upset everyone”.
iv.“We will have to deal with the outfall now”.
v.“You and I have a problem now; you know there will be consequences.”
vi.“The unions have been contacted already; we’ll be taking this further.”
· The repeated use of expletives and accusatory language, especially in public and private settings, creates a hostile and psychologically unsafe work environment for Ms POHLNER.
3. Disruption of Team Dynamics and Professional Integrity:
· Statements such as “I only applied for the job to stop Sean from getting it” reflects poorly on Mr Bowler’s professional judgment and diminish the credibility of the recruitment process.
· Such comments risk fostering resentment among team members, undermining Unitywater’s values of collaboration and respect.
4. Cumulative Psychological Harm:
· The pattern of behaviour, including public accusations, exclusionary remarks, and attempts to isolate Ms Pohlner, could reasonably cause significant psychological distress, affecting her well-being and ability to perform her duties effectively.”
[91] The report concludes with an overall finding that Mr Bowler’s behaviour constituted serious misconduct, that the repeated and public nature of the behaviour constituted bullying and that there is a high risk of the behaviour continuing. As such, the investigator also found that “Mr Bowler’s behaviour posed a serious risk to the health and safety of Unitywater team members”.
[92] The final recommendations are that the Report’s “findings and observations” be considered and that “the general findings of the investigation” be communicated to Mr Bowler. A copy of the report was not provided to Mr Bowler or the AWU, nor were the additional findings as captured in 1-4 above.
[93] On 2 December 2024, Ms Kelly sent a copy of the investigation report to Mr Basterfield. The email accompanying the report included a summary of its findings. Ms Kelly also advised Mr Basterfield that she considered Mr Bowler’s behaviour to be a breach of the Code, the Policy and his employment contract and that Mr Bowler had failed to satisfactorily perform his position, on the basis of his breaches of said policies.[38]
[94] Under the heading of Risk Analysis/Resolution of Case Management Mr Basterfield is provided a range of options for consideration, including:
·Written warning
·Written first and final warning and
·Show Cause for termination of employment
[95] Ms Kelly’s assessment was that the Show Cause option presented the lowest risk to Unitywater. It is Ms Kelly’s evidence that on the morning of 4 December 2024, Mr Basterfield endorsed her recommendations and determined that Mr Bowler be invited to show cause as to why his employment should not be terminated.
First Show Cause letter
[96] On 4 December 2024 Mr Bowler was issued a show cause letter. As noted, Mr Bowler was not provided with a copy of the investigation report, however he was advised that the investigation had been completed and that each of the five allegations had been substantiated, following the investigator making the following “factual findings” regarding Mr Bowler’s conduct:[39]
·“You have, made a number of offensive and inappropriate remarks in front of multiple witnesses. The behaviour displayed by you in these examples demonstrates a repeated pattern of unreasonable behaviour and a disregard for Unitywater's behavioural expectations.
·Your behaviour has been found to show disregard for Ms Pohlner and Mr Rahman by discrediting their character: in front of peers and direct reports.
·You demonstrated intimidating behaviour towards Ms Pohlner in an open office environment. This behaviour intimidated multiple Unitywater team members and created a negative working environment for observers.
·You demonstrated intimidating behaviour towards Ms Pohlner in a Unitywater vehicle.
·You have made a number of discriminatory, demeaning and unprofessional remarks in front of multiple witnesses.”
[97] Mr Bowler was further advised that, in view of the substantiated allegations, and the conclusions arising from the investigation, that his conduct was in breach of the Code, the Policy and his employment contract.
[98] Mr Bowler was advised that these findings and breaches were very serious and as such, Unitywater was considering the termination of his employment. Mr Bowler was invited to show cause as to why he should not be terminated, by 6 December 2024 and required to attend a meeting to discuss his response on 9 December 2024.
[99] Following an exchange of emails between Mr Kelly and Mr Anderson, Mr Bowler was provided an extension of time to provide his response by 9 December 2024 and the meeting was rescheduled for 12 December 2024.[40]
[100] Mr Anderson provided a response on behalf of Mr Bowler on 9 December 2024. In short summary, Mr Anderson raises a number of issues concerning the findings, highlighting a number of issues with respect to Unitywater having substantiated the allegations “on the balance of probabilities”, and that several findings, including that his behaviour was “repeated and ongoing” were never put to Mr Bowler.
[101] Notwithstanding this, Mr Anderson argued the termination of Mr Bowler’s employment would be disproportionate with the substantiated allegations and raised additional mitigating factors to be considered when determining the appropriate disciplinary outcome. In conclusion, the response stated that a decision to terminate Mr Bowler would be harsh and unreasonable in the circumstances.[41]
Second Show Cause letter
[102] On 13 December 2024 Mr Bowler received further correspondence signed by Mr Basterfield in which Unitywater sought to respond to the AWU’s above assertion regarding evidentiary reasons for termination. Mr Bowler was provided until 20 December 2024 to present any relevant material or considerations which might demonstrate why Unitywater should not terminate his employment.[42]
[103] On 20 December 2024 Mr Anderson provided a further response. Within this response, Mr Bowler directly addresses Unitywater, outlining among other things, that it was not his intention to be intimidating or unprofessional nor was it his intent to upset anyone. Mr Bowler clarifies his response relating to a range of alleged behaviours and interactions and asserts that it appears as though the responses provided by others, which he has not seen, have been afforded greater weight than his own.
[104] Mr Bowler goes on to state that he does not oppose the application of a disciplinary penalty and, acknowledging that he may have made Ms Pohlner feel uncomfortable suggests that he would willingly accept a transfer to another role. With respect to his ongoing relationship with his colleagues, Mr Bowler expresses a willingness to take part in further training, so that he might “understand where I went wrong and to confirm my commitment to make the workplace a better place and myself a better person”.[43]
Mr Bowler is advised of his termination
[105] On 6 January 2024, Mr Bowler received correspondence from Mr Hibberd titled “termination of your employment with Unitywater”. Mr Bowler was advised that the five allegations of “misconduct” had been substantiated against him and that as a result he had been found to have variously breached Unitywater’s Code of Conduct, Unitywater’s Discrimination, Bullying and Sexual Harassment Policy, and his employment contract.
[106] Mr Hibberd goes on to suggest that he does not accept Mr Bowler’s assertion that he did not intend to intimidate Ms Pohlner and that “your substantiated behaviour was not only deliberate, but it was at times public, and I am satisfied it was intended to intimidate and/or otherwise belittle Ms Pohlner. Your conduct towards Ms Pohlner, a much younger colleague, lacked any sort of decency”. Further, Mr Hibberd suggests that he is not satisfied that Mr Bowler has demonstrated any true contrition for his behaviour.
[107] Mr Hibberd concludes that in totality, Mr Bowler’s conduct constitutes serious misconduct however, noting his length of service and otherwise unblemished record, he had decided to pay Mr Bowler five weeks pay in lieu of notice.
WAS MR BOWLER UNFAIRLY DISMISSED?
[108] The criteria that I must consider when deciding whether Mr Bowler’s dismissal was harsh, unjust, or unreasonable are set out at s.387 of the Act. I set out my consideration of each below.
Section 387(a) - Was there a valid reason for the dismissal related to Mr Bowler’s capacity or conduct?
[109] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[44] and should not be “capricious, fanciful, spiteful or prejudiced.”[45] 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.[46]
[110] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[47] “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”[48]
[111] Deputy President Asbury (as she was then) summarised the relevant principles in
relation to an employer’s onus of establishing that there was a valid reason for a dismissal on
the balance of probabilities as follows in Mellios v Qantas Airways Limited, which was
confirmed on appeal by the Full Bench:[49]“[17] In considering whether there is a valid reason for the Applicant’s dismissal, I am required to be satisfied on the balance of probabilities that he engaged in the alleged misconduct or in misconduct to which dismissal was a valid, sound and defensible response. I must be conscious of the gravity of the allegations and the ramifications for the Applicant if they are made out. However, the standard of proof does not change and the issues in dispute must be determined on the balance of probabilities. Put another way, it must be more probable than not that the Applicant engaged in the relevant misconduct.”
[112] I have applied these principles to the matter before me.
Mr Bowler’s Submissions
[113] Broadly speaking, Mr Bowler denies that the five allegations made against him could reasonably have been substantiated as:
a)some of the alleged conduct did not occur, and Unitywater could
have had no proper basis for concluding that it did;
b)some of the alleged conduct occurred but Unitywater could not
reasonably have found that the conduct amounted to the various
breaches as claimed; andc)some of the conduct alleged to have occurred was never put to Mr Bowler.
[114] In closing submissions, Mr Taylor made a number of observations regarding the investigation process, and the evidence as it related to key incidents around which the five allegations were drawn.
[115] My attention was drawn to Unitywater’s Form F3, in which Mr Bowler was described as having been an “unreliable historian” throughout the investigation process. Mr Taylor suggests that the evidence paints a much different story. Mr Bowler, he says, was forthright to the best of his abilities during the investigation and show cause process but was clearly hamstrung by Unitywater’s actions including:
·incorrectly claiming that certain witnesses were present for different statements purportedly made during the respective allegations.
·incorrectly articulating the actual statements alleged to have been made.
·failure to provide other significant information such as who was present at each of the alleged events.
·failure to interview all relevant witnesses.
[116] In summary, it is submitted that Unitywater did not have a valid reason for terminating Mr Bowler’s employment as the reasons provided are not ‘sound, defensible or well founded’. Noting that it is well established that the absence of a valid reason will almost invariably render the termination unfair, they say the decision to terminate Mr Bowler was accordingly unfair.[50]
Respondent’s Submissions
[117] Unitywater submit it was open to them to substantiate each of the five allegations put to Mr Bowler and that the allegations, once substantiated, reflected a pattern of continuing retributive behaviour towards Ms Pohlner, a much younger female colleague, that could only have been intended to intimidate and bully her following her successful appointment to the SSO position. Unitywater contend that their characterisation of the substantiated conduct as “shameful, targeted, ongoing and intended to intimidate or belittle” plainly arose on the substantiated facts.
[118] Unitywater submit they have a duty of care to ensure the health and safety of Ms Pohlner, and their other employees. They say that Mr Bowler’s conduct reflected a complete disregard for Ms Pohlner’s psychological wellbeing and that his denials, continued minimisation of the conduct and lack of any real remorse or insight, was inconsistent with Unitywater discharging its obligations to provide a safe working environment.
[119] Unitywater submit that they conducted a comprehensive investigation, and identified the risk to other employees as high. In those circumstances, continuation of Mr Bowler’s employment was untenable.
[120] Unitywater further submits that Mr Bowler’s misconduct was “serious misconduct” as defined in clause 3.5.3(a) of the Agreement. Even if the conduct does not amount to serious misconduct under the Agreement, it is submitted that the conduct amounts to "serious misconduct" within the ordinary meaning of the term. This is because it involves a failure to follow instructions in the form of company policies and procedures - which also placed the health and safety of co-workers at serious risk. That conduct was incompatible with the fulfilment of Mr Bowler’s duties owed to Unitywater, and his obligations as an employee of Unitywater under the WHS Act, and is destructive of the necessary confidence between the employer and an employee.[51]
[121] In closing submissions, Unitywater did concede that some of the evidence from their witnesses were recounted differently from each other. Particularly, Ms Deo’s evidence that Mr Bowler was standing over Ms Pohlner which suggests by the weight of the evidence that she was wrong.[52] Concession was also made in respect of the investigation process, in particular that Mr Walsh was not interviewed regarding the discussion at Ms Pohlner’s desk or the discussion in the carpark, noting that circumstances would suggest he was in the vicinity and that he ought to have been interviewed as it would have been fair to do so.[53] Regarding the incident in the carpark, Unitywater noted that Mr. Howden was approached by the investigator for an interview and he denied that anything happened in the car park, but also refused to be interviewed.[54]
[122] Regarding, Mr Howden and Mr Walsh’s presence during the above incidents, Unitywater did observe that as the conduct that was being alleged was a breach of the Code of Conduct, and potentially the bullying and harassment policy, by standing there and simply allowing it to occur, those other persons were also potentially implicated in the conduct itself. Therefore the weight of the evidence that they might then give in those circumstances may be limited. But notwithstanding that Unitywater can accept that Mr Walsh should have been asked about the allegation. Arguably, they say, in Mr. Howden's case, little is to be gained from a person who had demonstrated hostility and unwillingness to cooperate with the investigation.
[123] With respect to the recording of the conversation between Ms Pohlner and Mr Bowler on 8 November 2024, Unitywater conceded that it would have been appropriate for the recording to have been obtained and disclosed to Mr Bowler at an earlier stage as the recording is the best evidence of what happened, both what was said and the tone in which it was said. It was acknowledged that, had Mr Bowler had access to the recording at an earlier stage, it may well have assisted his memory of what had happened in the vehicle.
What reason was given for the dismissal?
[124] Having substantiated each of the five allegations made against Mr Bowler, and considered several observations made by the investigator, Unitywater determined that he had variously breached the Code, the Policy and his employment contract.
[125] Mr Hibberd’s 6 January 2025 termination letter states that the various mitigating factors raised by Mr Bowler had been taken into account, but that they must be balanced against Mr Bowler’s shameful, targeted and ongoing campaign against Ms Pohlner.
[126] It is stated that Mr Bowler’s conduct was intended to intimidate and/or otherwise belittle Ms Pohlner, and “lacked any sort of decency” and that Mr Bowler had failed to demonstrate any true contrition for his behaviour. Mr Hibberd states that he cannot expose Unitywater employees to the health and safety risks that Mr Bowler presents and concluded that Mr Bowler’s conduct had been found to have been so egregious that the only reasonable outcome was the termination of his employment.
[127] In totality, Mr Hibberd concludes that Mr Bowler’s conduct constitutes serious misconduct in accordance with clause 3.5.3(a) of the Agreement and as such, he is dismissed with immediate effect.
Serious misconduct
[128] The Agreement prescribes serious misconduct as follows:
“1.5.3 Serious misconduct is conduct that would be treated as such by the Fair Work Act 2009 and the common law. This may include, but is not limited to:
(a) Wilful or deliberate behaviour by a team member that is inconsistent with the continuation of the contract of employment;
(b) Conduct that causes serious and imminent risk to the health or safety of a person;(c) Theft;
(d) Fraud;
(e) Assault;
(f) Intoxication in the course of employment (alcohol or drugs);
(g) Refusing to carry out a lawful and reasonable instruction that is consistent with the team member's contract of employment.”
[129] The Fair Work Regulation 2009 at clause 1.07 defines serious misconduct as conduct that causes serious and imminent risk to the health and safety of a person or to the reputation, viability or profitability of the employer's business. Serious misconduct is similarly defined as including conduct such as theft, fraud, assault, sexual harassment, intoxication at work and the refusal to carry out lawful and reasonable instructions consistent with the employment contract.
[130] Serious misconduct involves an employee deliberately behaving in a way that is inconsistent with continuing their employment, to the extent that it would be seen to repudiate their employment contract.[55] Essentially serious misconduct confers the notion of wilful or deliberate behaviour which strikes at the heart of the employment relationship.[56]
[131] The standard of gross and serious misconduct is based on the balance of probabilities, noting the principles in Briginshaw v Briginshaw:[57]
“The standard of proof remains the balance of probabilities but ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’[58] or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.”[59]
[132] I have had regard to these principles when considering the facts and circumstances of this matter.
Observations on the witness evidence
Mr Bowler
[133] I found Mr Bowler to be a credible witness, who was willing to concede where challenged. Under the pressure of cross examination, Mr Bowler displayed some signs of frustration but did not, in my view, display any behaviours that could reasonably be described as aggressive, nor did I find his overall manner to be suggestive of a propensity to be intimidating either intentionally or otherwise. Mr Bowler accepted various propositions put to him and I found his evidence that he was upset by the process, not the person, convincing.
[134] Mr Bowler displayed a willingness to appreciate how the circumstances of this matter and his actions may have impacted on Ms Pohlner and others, but remained steadfast in his view that the allegations put to him were confusing and that the investigator appeared to have conflated the recollections of those interviewed across the various events the subject of the investigation.
[135] The strong theme of his evidence, was that whilst he accepted he had engaged in several of the discussions, and had to a certain extent made comments along the lines of what was alleged, he was not willing to accept that he had made many of the specific statements that were attributed to him, nor that any of his statements were made with the intent of intimidating Ms Pohlner or others. It was clear that Mr Bowler felt his reluctance to agree with the allegations as put, had been misinterpreted by Unitywater as outright denial and an unwillingness to show any form of remorse or insight.
[136] As an example, I found Mr Bowler was open and honest in describing that he had been disappointed that Ms Pohlner had “lied to him", however he maintained his view that this was quite different to the allegation that he had publicly called Ms Pohlner “a liar”.
Ms Pohlner
[137] The allegations against Mr Bowler result in the main from his interactions with and about Ms Pohlner, hence her evidence was critical to establishing the factual circumstances against which Mr Bowler’s conduct has been assessed. In addition to the inconsistencies in her evidence regarding recording she had taken of her conversation with Mr Bowler on 8 November 2024, I found several elements of Ms Pohlner’s evidence problematic.
[138] During cross examination, Ms Pohlner paused regularly to check her notes, giving the impression of an unwillingness to be candid. Ms Pohlner also displayed a tendency to revert to formulaic responses particularly when challenged on the statements she had made during her interview with Ms Kelly.
[139] Throughout her cross examination, Ms Pohlner was observed to possess strong views regarding what she deemed to be appropriate conduct, as highlighted by her answer to the questions regarding swearing in the workplace and amongst her friends. This gave an overall impression that Ms Pohlner had extremely high expectations regarding her personal interactions that may not have been reasonably presumed by others.
[140] Ms Pohlner maintained that the statements she made during her interview were her recollection of what was said, however during cross examination it became clear that many such recollections appeared to have been based more on how she felt, what she considered appropriate or how she interpreted what was said, rather than the actual words spoken. This was particularly evident during cross examination regarding the recording, which highlighted several inconsistencies between her recollection and the actual words spoken. When asked if, having just heard the recording, and with the benefit of the transcript, she had changed her views on some elements of the conversation, she was unwilling to concede even the most obvious inconsistencies.
[141] In stark contrast to Mr Bowler, I found Ms Pohler was unwilling to accept various alternate propositions put to her during cross examination, particularly relating to any contrary view of the appropriateness of Mr Bowler’s conduct.
Ms Kelly
[142] Ms Kelly undertook the full investigation and disciplinary process. As such, the cross examination of her evidence was lengthy. Ms Kelly clearly struggled under the pressure of cross examination. I found Mr Taylor’s cross examination of Ms Kelly was respectful, however Ms Kelly became visibly frustrated and at times quite distressed.
[143] Ms Kelly was observed to pause regularly to check her statement rather than answering questions candidly. Ms Kelly’s cross examination highlighted key omissions from her witness statement and inconsistencies with the evidence of Ms Pohlner relating to the recording, which raise further questions as to the credibility of her evidence generally, particularly with respect to the use of the recording during her investigation.
[144] I found that Ms Kelly’s evidence appeared to have been given through the lens of what appeared to be an unwavering belief in the thoroughness of her investigation and its outcomes which, in my view, led to an almost complete unwillingness to concede a number of propositions challenging the investigation and her findings.
Other witnesses
[145] I found the remaining witnesses credible. They were each open with respect to their recollections and displayed a willingness to accept alternate propositions when put. Their evidence highlighted some clear inconsistencies, which I have found instructive with respect to the extent that it was relied on by the investigator to make findings of fact.
[146] Notwithstanding the above, I do not consider there was any intentional misrepresentation of the facts, rather, I have taken these differences to suggest they each observed slightly different elements of the interactions, and that each of them viewed, and recalled the interactions they had observed quite differently. This is understandable given much of this matter turns on highly subjective questions of tone and intent. It is also relevant that multiple witnesses confirmed that it was common for them and their colleagues to swear in the workplace, and openly accepted that swearing was not an indication of anger.
[147] I have had regard to these observations when considering the facts and circumstances of this matter.
The allegations
[148] The format of the allegations as presented to Mr Bowler was at best confusing. Even with the benefit of the more fulsome submissions and witness evidence, it was not clear precisely which allegation occurred on which date, which alleged “statements” related to which event, nor whom was alleged to have been present during each incident.
[149] I have found the continued use of terms and headings such as “unprofessional”, “intimidating”, “public”, “demeaning” and “discriminatory” throughout the investigation and when forming the allegations of concern. Such statements could reasonably be viewed as a presumption of facts which had not yet been established. Similarly, I note Ms Pohlner recalls that during their first conversation about the matter, Ms Kelly advised her that “what she had experience was a big deal” and that “Unitywater does not condone that type of behaviour” even though she had not yet commenced her investigation.[60]
[150] I have observed that similar issues have then flowed into the format of the show cause letters and the final letter of termination resulting in what could best be described as a moving feast of allegations, statements and observations. I accept that in the circumstances, it would have been extremely difficult for Mr Bowler and his representatives to have known precisely what they were responding to.
[151] In order to determine the existence or otherwise of a valid reason, I have found it necessary to put the allegations as put to one side, and instead, consider the key events that occurred in the lead up to, or in and around the workplace between 7-11 November 2024. I have adopted a similar approach to that of the parties during these proceedings. My considerations have been grouped as follows:
7 November 2024 Incident 1 Discussion in the hallway and at Ms Hadfield’s desk Incident 2 Discussion with Ms Pohlner at her desk Incident 3 Discussion in the Carpark with Mr Walsh and Mr Howden 8 November 2024 Incident 4 Discussion during car trip with Ms Pohlner 11 November and other unspecified dates Incident 5 Other comments
General observations and findings
[152] In advance of my consideration of each incident it is useful to address several key issues that have common application to this matter. I have had regard to these observations and findings when considering the facts and circumstances of this matter more broadly.
Unitywater’s management of the situation
[153] The evidence suggests that Ms Nicholson and Mr Bowler had a friendly and collegiate working relationship. Ms Nicholson was aware of the demographics of the group she supervised, and I have seen no evidence to suggest that she had previously taken issue with the way in which she and Mr Bowler had interacted in the workplace. I also accept Mr Bowler’s uncontested evidence that up until this point, the team was “like a family”.
[154] Knowing the workplace as they did, it must have been reasonably foreseeable to Ms Nicholson and Mr Rahman that there may have been mixed reactions to the announcement of Ms Pohlner’s appointment, yet I have seen no evidence of them having taken any steps to proactively manage the recruitment process or the announcement so as to avoid the very issues that did arise.
Why did Ms Pohlner make the recording?
[198] Whilst I accept Ms Pohlner may have found the interactions with Mr Bowler the day before challenging and uncomfortable, I have not been convinced that Mr Bowler’s actions were intentionally intimidating or aggressive. As such, I have not been convinced that Ms Pohlner had any genuine reason to fear for her safety. This view is further supported by Ms Pohlner’s SSO Minutes document, which her evidence suggests, was a contemporaneous record of her interactions with Mr Bowler, in which she makes no mention of the arrangement she later says she had made with Ms Ballard, and in which she describes her decision to record the conversation as follows:
“I pre-empted the conversation was going to be negative and chose to record the conversation discreetly for my records”.[66]
[199] This language is significantly different to the language later used by Ms Pohlner to describe her decision to record the conversation. That Ms Pohlner anticipated the conversation may have been negative, was understandable, but does not, in any way suggest that she feared, or had cause to fear for her safety.
[200] It is of further concern that Ms Kelly appears to have unequivocally accepted Ms Pohlner’s word that she feared for her safety. I have seen no evidence to suggest that Ms Kelly asked Ms Nicholson whether she considered such concerns were reasonably held by Ms Pohlner, nor did she seek any confirmation from Ms Ballard to confirm their discussion. Had Ms Kelly asked this question of Ms Nicholson during her interview, it is likely she would have given the same response she provided in her statement, which was that she did not consider Ms Pohlner’s safety to have been at risk.
[201] In fact, there is no evidence whatsoever to indicate that Ms Kelly attempted to substantiate Ms Pohler's stated reason for making the recording. Noting the circumstances of this matter, in particular Ms Kelly’s uncertainty as to the legality of taking or using a secret recording, it would not have been unreasonable for Ms Kelly to have considered any other motives Ms Pohlner may have had for making the recording such as securing evidence to support her own position should Mr Bowler’s grievance be investigated, or simply ‘for her records”, noting she was now Mr Bowler’s supervisor.
[202] It is not necessary for me to make any findings as to why Ms Pohlner chose to make the recording, it is however relevant that the evidence does not support a finding that Ms Pohlner recorded the conversation because she feared for her safety.
What did Ms Pohlner do with the recording?
[203] Whilst Ms Pohlner initially denied that she had played the recording to anyone, she later conceded that she had in fact played the recording to Ms Kelly during “our teams meeting about the recording”.[67] When asked why she had not referenced this meeting, nor the fact that she had played the recording to Ms Kelly, Ms Pohlner answered that “she did not think it was relevant”.
[204] During Ms Kelly’s cross examination, she first attempted to maintain the position that she had not listened to the recording at all, on the basis that to do so would have been unfair to Mr Bowler, only to later concede that she had actually received a copy of the recording on 22 November 2024 (some four days after the allegation letter was sent to Mr Bowler) and that she had, at that point listened to it once.[68] This was in clear contradiction to Ms Pohlner’s evidence that she played the recording to Ms Kelly in a separate teams call sometime around 14 November 2024.
[205] During Mr Hibberd’s cross examination, it became clear that whilst he had not made mention of the recording in his statement, he had been made aware that a recording existed. When pressed as to why he had not listened to it, Mr Hibberd stated”[69]
.... “it wasn't a fact that I think we could consider. You know, I think that we were based on a report, interviews, the statements of the individuals”.
[206] In response to Mr Taylor’s contention that much of what Mr Bowler was alleged to have said was inaccurate when compared with the recording, Mr Hibbard conceded that it may have been helpful for Mr Bowler to have had access to the recording.
[207] I find it reasonable to conclude that Ms Pohlner played the recording to Ms Kelly during a Teams’ meeting on or around 14 November 2024 but before Ms Pohlner sent her 10:05pm email. In all of the circumstances, I do not accept Ms Kelly’s evidence that the recording was not used as a part of the investigation. Rather, it is more likely that the recording was selectively used to bolster the allegations against Mr Bowler. I have more to say on this below.
What was actually said?
[208] The recording was played at the hearing, and a transcript was tendered into evidence making any further conjecture as to precisely what was said during the conversation a moot point. It does however provide insight into how both Mr Bowler and Ms Pohlner viewed the conversation, its meaning and its intent. Having reviewed the recording several times, I prefer the account provided by Mr Bowler. Even though Mr Bowler did not have the benefit of a recording when replying to the allegations, I found his recollection accorded more with the actual recording than Ms Pohlner’s, particularly with respect to his tone and demeaner throughout the conversation.
[209] Whilst the recording highlights some gaps between Mr Bowler’s recollection of the exact words spoken, I agree with Mr Taylor’s contention that it does not show the sort of mistreatment of Ms Pohlner that Unitywater relies upon as one of their reasons to justify the decision to terminate Mr Bowler’s employment.
[210] The evidence does not support Ms Pohlner’s contention that she was so anxious during the conversation that she “shut down”. Viewed objectively, it is more likely that she was being guarded in her responses because, unlike Mr Bowler, she knew that the conversation was being recorded. If Ms Pohlner was not interested in what Mr Bowler had to say, it was open to her, at any stage of the conversation to simply have told him that she did not want to discuss it any further – she did not do this, rather she let him continue.
[211] During cross examination Ms Pohlner was asked to point to examples in the transcript of Mr Bowler being “angry”. The only example Ms Pohlner was able to point to were instances during the conversation where Mr Bowler had sworn. When pressed on whether swearing was synonymous with anger, Ms Pohlner remained steadfast in her view that it was, curiously maintaining that she, nor anyone in her private life ever swears. In contrast, Mr Bowler accepts that he swore, but notes that people do swear in workplaces, and for a range of reasons as acknowledged by other Unitywater witnesses.
[212] Mr Taylor took Ms Pohlner to several examples where the allegations, which were based on the recollection she provided during her interview, did not align with the actual wording of the transcript. Ms Pohlner’s response to each of these statements was to repeatedly reaffirm that what she said in her statement was what she recalled at the time.
[213] As foreshadowed above, having reviewed the recording, and contrasted it against the allegations, it seems most likely that information gathered by Ms Kelly and Ms Pohlner through listening to the recording was used selectively to bolster the allegations against Mr Bowler.
[214] Notwithstanding the above, whilst some of the information was clearly deemed useful to the investigation, on balance, it seems most likely that Ms Kelly had formed the view that its existence raised more concerns about Ms Pohlner’s recollection of events than it did Mr Bowler’s. In these circumstances, that Ms Kelly made the conscious decision to rely on information gathered through listening to the recording, without including the full context provided by the recording, is deeply concerning.
[215] Of further concern was Ms Pohlner and Ms Kelly’s unwillingness to accept that the existence of the recording placed any obligation on them to ensure the accuracy of the allegations. Rather, they clung to their shared view that the notes contained in Ms Pohlner’s record of interview were her “recollection” and that the recording was not used at all. I simply cannot accept this proposition, particularly when Mr Bowler, who did not have the benefit of a recording, was labelled an “unreliable historian” for simply providing his alternate recollection of the conversation.
[216] Having listened to the recording, I make the following findings:
· At no time during the conversation does Ms Pohlner appear to be anxious, scared or intimidated.
· Contrary to Ms Pohlner’s evidence Mr Bowler’s tone of voice or conduct during the conversation could not be characterised as threatening, intimidating or demeaning.
· Mr Bowler does swear, but importantly, he does not swear at Ms Pohlner.
· There is no evidence to support Mr Pohlner’s allegation that Mr Bowler was angry or aggressive.
[217] Considering the above, I accept Mr Taylor’s proposition, that this was a normal workplace conversation between two colleagues about an industrial matter. Mr Bowler did however concede in his 21 November response:
· “In the capacity of Union Delegate, I am straight to the point, I just say how it is.
· I can see now this may come across to someone who does not know me well, as being somewhat forthright which in turn can be taken as intimidating, however my intent was never intimidation”.[70]
[218] I accept Mr Bowler’s submission that Unitywater knew there was a recording made of the conversation in the car that may well have been able to assist inculpate or exculpate Mr Bowler in part or in full, but, without explanation in the witness statements of Ms Kelly and Mr Hibberd, made a forensic decision not to obtain or use the recording, or apparently even to request to obtain or at least use that recording.
[219] The inconsistencies in Ms Kelly and Ms Pohlner’s evidence raise issues of credibility both with respect to the influence the recording may have had on the allegations that were ultimately put to Mr Bowler, and to Ms Kelly forming the conclusion that Mr Bowler was an “unreliable historian”. Noting both Ms Pohlner and Ms Kelly’s moralistic propensity during cross examination with respect to the actions of others, their own actions and evidence relating to the recording are difficult to reconcile.
[220] I accept Mr Bowler’s comments relating to HR were unprofessional and in breach of the Code, particularly the requirement to demonstrate a high level of workplace behaviour and personal conduct, and to demonstrate respect for other employees. I have however taken into account that these comments were uttered during a conversation that Mr Bowler reasonably presumed to be private. It is also relevant that these comments were not directed at Ms Pohlner, and as such, could not reasonably be suggested to have been said with the intention of intimidating her.
[221] The evidence does not support a finding that Mr Bowler’s conduct was discriminatory nor that it could reasonably be described as bullying or sexual harassment, nor do I find Mr Bowler’s conduct at any time posed a serious and imminent risk to Ms Pohlner’s health or safety.
[222] Considering the circumstances of this matter, whilst I have found Mr Bowler’s actions were in breach of the Code, I have not been convinced that his conduct during Incident 4 rose to the level of serious misconduct nor was it a valid reason for his dismissal.
Incident 5 – Allegations of inappropriate comments
[223] The allegations relating to this incident incorporate a range of statements Mr Bowler is said to have made between 7 -11 November 2024.
[224] Firstly - under the heading “Intimidating, Demeaning and unprofessional conduct”, it was alleged that on 11 November 2024, Mr Bowler had made the following statements:
“I don’t think we should be training her” and
“When Habib gets back, he’ll get a mouthful from me”
[225] Mr Bowler concedes that he did make a comment to Ms Nicholson along the lines that she should take Ms Pohlner under her wing and train her the way she wants to. He further conceded that at the time, he was struggling to comprehend what he and his colleagues would have to offer Ms Pohlner by way of training as she was now a level above them and had been appointed to a role that required her to train them.
[226] I note Mr Bowler’s comment that “we were asked to train the successful applicant who was deemed to be the most suitable. For some, that was very devaluing as an employee, especially long-serving employees with extensive experience and knowledge”. Mr Bowler also suggest, and I accept, that in raising these points, he was expressing his opinion, in the hope that Ms Nicholson may have better understood how he and his colleagues were feeling.
[227] I believe it was reasonable in the circumstances that Mr Bowler felt comfortable expressing his opinion, both personally and as the union delegate to Ms Nicholson and in the circumstances, I do not consider Mr Bowler’s comments could reasonably be viewed as intimidating, demeaning or unprofessional conduct.
[228] With respect to the comments regarding Mr Rahman, I note these were just comments, and that Mr Bowler did not speak to Mr Rahman about any of these matters. Viewed objectively, at their highest, Mr Bowler’s comments relating to Mr Rahman were unprofessional however, noting the industrial realities of the parties, the circumstances of this matter and the nature of Mr Bolwer’s relationship with Ms Nicholson, I do not find Mr Bowler’s conduct rose to the level of serious misconduct.
[229] Secondly - under the heading “discriminatory, demeaning and unprofessional comments”, it was alleged that Mr Bowler made several undermining and gender-based statements to both Ms Nicholson and Ms Pohlner between 7-11 November 2024. Again, the way these allegations were put to Mr Bowler was quite confusing as the alleged conduct appears to conflate statements made to different people at different times. The substantiated allegation was that Mr Bowler had said:
“We have a woman CEO, women managers are afraid of conflict and are soft”
“Women are in leadership roles for statistics only”
“They’re only hiring young women”
And, on 8 November 2024, via text message to Ms. Donna Nicholson:
"She's not interested in discussing the work environment. She does the same as my daughter, gazing off into nowhere."
[230] With respect to the comment about Ms Pohlner, there is no dispute that Mr Bowler sent a text message to Ms Nicholson on the evening of 8 November 2024, which contained the above reference. It was Mr Bowler’s evidence that this was simply his way of explaining to Ms Nicholson that Ms Pohlner had appeared unresponsive to his attempts to explain this situation to her.
[231] Mr Bowler was clearly unguarded in his communication with Ms Nicholson and it is relevant that Ms Nicholson showed no indication during the text message exchange to indicate she had taken issue with anything Mr Bowler had said. In fact, after sending the above-mentioned message, Mr Bowler makes a joking response to Ms Nicholson’s reference to their colleague “bending the knee”. Ms Nicholson responds with a “HaHa” emoji, before sending Mr Bowler a photo of a cat. None of these interactions would reasonably indicate that Ms Nicholson was at all concerned with Mr Bowler’s text message, or that she was holding any residual concerns about the events of the day before.[71]
[232] With respect to the other comments detailed above, the evidence simply does not support a finding that they were made as alleged.
[233] It is Mr Bowler’s evidence that first up at 7:00am Monday 11 November 2024, he initiated a conversation with Ms Nicholson with the intention of explaining how he and the others were feeling. It was during this conversation that Mr Bowler is said to have made the above statements however, the only comments of these kind that can be found in Ms Nicholson’s statement are that she recalls Mr Bowler saying “Us white 50 year old men are a dying breed, its rampant across unity water, I’ve seen it everywhere, they’re only hiring young women”.
[234] It was Ms Nicholson’s evidence that Mr Bowler had, in the past made comments along the lines of “We have a woman CEO, women managers…. Women are afraid of conflict and are soft”. Importantly, Ms Nicholson’s evidence during this proceeding, and during the investigation references unspecific comments that were made at an unspecified time in the past, not during the 11 November 2024 conversation as per the substantiated allegation.
[235] Similarly, the comments alleged to have been made to Ms Pohlner do not appear to have been made between 7-11 November 2024. It is Ms Pohlner’s evidence that at some time in late September and early October 2024, Mr Bowler had made several comments in which he criticised women including “that women were in leadership roles for statistics only”, and that “there are no opportunities for middle aged white males anymore”.[72]
[236] In these circumstances, it is unsurprising that Mr Bowler refutes making any of these precise statements as alleged and questions how these allegations could reasonably have been substantiated. He does however, accept that he had made comments along the lines of:
·“We have a woman CEO, and we have adopted a soft approach”….”we never had this when George Theo was the CEO.”
·“We know Unitywater are on an employment push for women, it’s public knowledge, I just thought merit and real experience would be the top criteria”.
·“I’d just like to see people getting positions based on merit and not what appears to be just a diversity choice”.
[237] Whilst the issues highlighted above raise clear questions with respect to the substantiation of the allegation as put, based on Mr Bowler’s own admissions, I accept that he did make a range of comments of concern. Mr Bowler maintains, and I accept, that he does not have an issue with women. I do however have difficulty accepting that Mr Bowler would not have been aware that some of the comments he admits having made, such as “just a diversity choice” were unprofessional and could reasonably have been understood to have been disrespectful and demeaning to women generally.
[238] I accept Unitywater’s contention that the views expressed by Mr Bowler were unprofessional and could have been considered to be demeaning to women, however, in all of the circumstances, I have not been convinced that Mr Bowler expressing these views, during a private conversation with either Ms Nicholson or Ms Pohlner amounts to discrimination.
[239] I find that Mr Bowler’s conduct relating to Incident 5 represents a breach of Unitywater’s code of conduct, in particular the obligation to demonstrate respect for other Unitywater employees. Considering the circumstances of this matter, I have not been convinced that his conduct as it related to Incident 5 rose to the level of serious misconduct nor was it a valid reason for his dismissal.
Breach of the Code
[240] Whilst I have found Mr Bowler’s conduct to have variously breached the Code, it is relevant that in most cases, these breaches could and should have been addressed directly with Mr Bowler at the time but were not. This raises questions as to the custom and practice within the team and why, in this case, such exception was taken to Mr Bowler’s comments after the fact.
[241] Noting all of the circumstances of this matter, I do not find Mr Bowler’s breaches of the Code, taken either individually, or collectively, rise to the level of serious misconduct. It is also relevant that each of the breaches relate to the same set of circumstances, and many were contained within private conversations with Ms Nicholson. As noted, had appropriate clear action been taken by Ms Nicholson to call out these breaches at the time, it is reasonable to conclude that Mr Bowler, would have taken steps to ensure his ongoing compliance.
Policy and WH&S Obligations
[242] The Policy states that a single incident of unreasonable behaviour does not constitute workplace bullying.[73].Whilst there were multiple allegations, in the most part they occurred over a short period of time and were in response to the same events and circumstances. Further to my comments above regarding the Code, I have also found that much of Mr Bowler’s behaviour was in the heat of the moment and as such, the evidence does not support a finding that it was repeated and unreasonable nor that it created a risk to the health and safety of Ms Pohlner or others. I have not found any of Mr Bowler’s conduct, either separately or together, rose to the level of workplace bullying.
[243] Similarly, I have not found any of Mr Bowler’s conduct to be discriminatory nor sexual harassment, nor do I find any of his conduct could reasonably be considered to have created a serious and imminent risk to the health and safety of Ms Pohlner or others.
Findings on Valid Reason
[244] I have not found that any of the incidents relied upon by Unitywater to dismiss Mr Bowler rose to the level of serious misconduct, nor were they valid reasons for his dismissal. I have not been convinced it was open to Unitywater to conclude that Mr Bowler was in breach of the Discrimination, Bullying and Sexual Harassment Policy, nor that he posed an ongoing risk to the health and safety of Ms Pohlner or others. I therefore conclude that there was no valid reason for the dismissal related to Mr Bowler’s capacity or conduct. This weighs in favour of a conclusion that his dismissal was unfair.
Section 387(b) and (c) - notice of reason for dismissal and opportunity to respond
[245] Mr Bowler was given notice of the reason for his dismissal and an opportunity to respond. The matter that is required to be taken into account under s.387(b) is whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[74] Since I have found that there was no valid reason in this case, there is nothing to weigh under this heading. The same view has been adopted in relation to s.387(c)[75] and the same approach applies.[76]
Section 387(d) - any unreasonable refusal to allow a support person to assist in discussions relating to the dismissal
[246] Mr Bowler does not claim that Unitywater unreasonably refused to have a support person present. Subsequently conceding that some weight should be placed on this consideration in favour of a finding that the dismissal was not unfair.
Section 387(e) – unsatisfactory performance - warnings
Mr Bowler’s dismissal did not relate to unsatisfactory performance, but rather alleged serious misconduct. This factor is not relevant to the present circumstances.
Section 387(f) and (g) - size of the employer’s business and absence of dedicated human resources management specialists or expertise
[247] Unitywater did not lack dedicated human resource management specialists and expertise, and as such, no excuse or justification arises in this regard.
Section 387(h) - other relevant matters
Applicant Submissions
[248] Mr Bowler submits that his dismissal has resulted in a loss of self-confidence and self-esteem. Mr Bowler further submits that the effects of the termination in his economic circumstances are best described as severe, noting his age, the state of his physical health, and his job prospects because of these factors.
[249] Mr Bowler submits that his 23 years of loyal and discipline-free service with Unitywater and its predecessors, properly weighted in addition to the above, should count significantly toward a finding that the termination of his employment was harsh.
Respondent Submissions
[250] Unitywater accept that Mr Bowler had a long period of employment with Unitywater of approximately 24 years. He has no prior disciplinary history. However, my attention was drawn to numerous decisions of the Commission that have dismissed contentions of harshness based on employment history, where employees have had very substantial periods of service.[77]
[251] Unitywater submit that in Mr Bowler’s case, his personal and financial circumstances are not out of the ordinary. Unitywater did not consider that the unblemished period of service, together with his personal circumstances and the likely impact of the dismissal, outweighed the seriousness of his conduct. The decision to dismiss Mr Bowler because of his exposure of his co-workers to risks to their health and safety was not disproportionate to the gravity of that misconduct, nor was the dismissal harsh in any other sense.
[252] Further, Unitywater contend that even though Mr Bowler had engaged in conduct that entitled them to dismiss him without any payment in lieu of notice, they nonetheless decided to pay him in lieu of notice. This, along with the above, they say weighs against a conclusion that the dismissal was harsh in all the circumstances.
Conclusion on Merits
[253] Whilst some of the conduct as alleged did occur, I have not been convinced that it justified Mr Bowler’s dismissal.
[254] Having found that Unitywater did not have a valid reason to dismiss Mr Bowler, it has not been necessary to make specific findings with respect to the investigation. I have however observed a number of significant failings in the investigation, particularly with respect to the findings of fact made by the investigator which, in many cases, were not supported by the evidence.
[255] Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of Mr Bowler was harsh, unjust and unreasonable. I am therefore satisfied that Mr Bowler was unfairly dismissed within the meaning of section 385 of the Act.
[256] To be clear, even if I had found Mr Bowler’s conduct to have been a valid reason for his dismissal, I would not have been satisfied that the decision to dismiss him was a reasonable or proportionate response in the circumstances, particularly noting the identified flaws in the investigation as well as Mr Bowler’s age, significant length of service, workplace injury and his limited job prospects.
Remedy
[257] In considering an appropriate remedy in a case of unfair dismissal, regard must also be had to the legislative object set out in s.381 of the Act. This includes an emphasis on the remedy of reinstatement and on ensuring that a “fair go all round” is accorded to both the employer and employee concerned.
Is reinstatement inappropriate?
[258] Mr Bowler seeks reinstatement to his previous position and the recovery of lost wages. Unitywater opposed reinstatement on the grounds that Mr Bowler’s conduct has resulted in them losing trust and confidence in Mr Bowler and his ability to comply with their policies and procedures and applicable laws, and the impact that Mr Bowler’s conduct may have on their ability to meet their legal obligations under harassment, bullying and safety laws. Having regard to my conclusions in relation to “valid reason”, this evidence is not persuasive on the issue of reinstatement.
[259] Mr Bowler says that even though he still has a significant work-related back injury, he is fit and keen to return to work immediately. Mr Bowler states that he will be happy to rebuild working relationships with his peers and managers, and is open to undertaking any training necessary to assist with his return. I am satisfied that the employment relationship can and should be restored.
[260] I consider that reinstatement is the appropriate remedy. Unitywater advanced no submissions as to why, if an order of reinstatement was made, it would not be appropriate to reinstate Mr Bowler to his previous position. I am satisfied that I should make an order reappointing Mr Bowler to the position in which he was employed immediately before the dismissal within fourteen days of the date of this decision pursuant to s.391(1)(a). An order to that effect will accompany this decision.
[261] I also propose to make an order to maintain the continuity of Mr Bowler’s employment and his period of continuous service pursuant to s.391(2).
Reinstatement - is it appropriate to make an order to restore lost pay?
[262] Section 391(3) provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to cause the employer to pay to the applicant an amount for the remuneration lost, or likely to have been lost, by the Applicant because of the dismissal.
[263] Subsection 391(4) of the Act provides that, in determining an amount for the purposes of such an order, the Commission must take into account:
a.the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
b.the amount of any remuneration reasonably likely to be so earned by the Applicant during the period between the making of the order for reinstatement and the actual reinstatement.
[264] An order to restore lost pay does not necessarily follow an order for reinstatement. The Commission may only make an order if it considers it appropriate to do so and only make an order that the Commission considers appropriate.
[265] Mr Bowler was dismissed without a valid reason and has suffered financial loss as a result. I consider it to be appropriate in the circumstances to make an order to restore lost pay. Whist I have found Mr Bowler’s conduct was in breach of the Code, I do not consider that any disciplinary process related to these breaches could reasonably have resulted in his dismissal or other monetary penalty. Consequently, I do not consider it appropriate to reduce this amount.
[266] I accept Mr Bowler’s evidence that he has applied for at least twelve jobs but has been unsuccessful in obtaining employment. Mr Bowler believes that the requirement to declare his pre-existing work-related back injury has significantly impacted his employability. In the circumstances, I consider Mr Bowler has made attempts to mitigate his loss.
[267] At the time of the hearing, Mr Bowler had not been successful in obtaining employment however, it is possible that Mr Bowler may have received earning that I am not aware of since this time. I intend to make an order that Unitywater pay Mr Bowler an amount equal to the remuneration he would have earnt had he not been dismissed, less:
·any amount Mr Bowler has earned or received since his dismissal from other employment, and
·the amount he was paid in lieu of notice.
[268] Superannuation will be payable on this amount.
[269] The amount of the order is to be agreed between the parties or will be subsequently determined by the Commission if required. The amount will be payable within 14 days of agreement being reached between the parties, or within 14 days of the amount being determined by the Commission. The parties are directed to contact my chambers to request a hearing date if agreement cannot be reached as to the amount of lost pay.
Conclusion
[270] For the reasons outlined above, I have determined that Mr Bowler was unfairly dismissed. I will separately issue orders for Mr Bowler’s reinstatement, continuity of employment and compensation for lost pay.
COMMISSIONERAppearances:
G. Taylor for the Applicant
C. O'Connor for the RespondentHearing details:
2025
Brisbane
2 to 5 June[1] Fair Work Act 2009 (Cth) (the Act) s.382.
[2] P.257 of DHB – Respondent Submissions.
[3] Ibid at P.256 of DHB.
[4] P.919 of DHB – Witness Statement of Donna Nicholson.
[5] P.639 of DHB – Annexure AJK-40 of Amy Kelly Witness Statement.
[6] P. 905 to 906 of the DHB – Witness Statement of Dawn Hadfield.
[7] P.910 of the DHB – Annexure DLH-1 of Dawn Hadfield Witness Statement.
[8] P.986 of the DHB – Witness Statement of Russell Kerkow.
[9] P.986 of the DHB – Witness Statement of Russell Kerkow.
[10] P. 966 of the DHB - Witness Statement of Mikaela Pohlner.
[11] P.896 of the DHB – Witness Statement of Brareen Deo.
[12] P.996 of the DHB – Witness Statement of Walter Chitsike.
[13] P.897 of the DHB – Witness Statement of Brareen Deo.
[14] P.921 of the DHB – Witness Statement of Donna Nicholson.
[15] Ibid.
[16] P.897 of the DHB – Witness Statement of Brareen Deo.
[17] P.967 to 968 of the DHB – Witness Statement of Mikaela Pohlner.
[18] P.359 of the DHB – Annexure AJK-12 of Amy Kelly Witness Statement.
[19] P.969 of the DHB – Witness Statement of Mikaela Pohlner.
[20] P.393 of the DHB – Annexure AJK-18 of Amy Kelly Witness Statement.
[21] P.969 of the DHB – Witness Statement of Mikaela Pohlner.
[22] P.922 of the DHB – Witness Statement of Donna Nicholson.
[23] P.250 of the DHB – Respondent Submissions.
[24] P.26 of the DHB – Attachment KB3 of Form F2.
[25] P.931 of the DHB – Annexure DMN-2 of Donna Nicholson Witness Statement.
[26] P.321 of the DHB – Annexure AJK-3 of Amy Kelly Witness Statement.
[27] P.970 of the DHB – Witness Statement of Mikaela Pohlner.
[28] P.924 of the DHB – Witness Statement of Donna Nicholson.
[29] P.924 to 925 of the DHB – Witness Statement of Donna Nicholson.
[30] P.349 of the DHB – Annexure AJK-10 of Amy Kelly Witness Statement.
[31] P.981 of the DHB – Annexure MP-2 of Mikaela Pohlner Witness Statement.
[32] P.389 of the DHB – Annexure AJK-18 of Amy Kelly Witness Statement.
[33] P.283 of the DHB – Witness Statement of Amy Kelly.
[34] P.26 of the DHB – Attachment KB3 of Form F2.
[35] P. 464 of the DHB – Annexure AJK-27 of Witness Statement of Amy Kelly.
[36] P. 31 of the DHB - Annexure KB4 of Form F2.
[37] P. 532 of the DHB - Annexure AJK-33 of Witness Statement of Amy Kelly.
[38] P. 555 of the DHB - Annexure AJK-35 of Witness Statement of Amy Kelly.
[39] P. 606 of the DHB - Annexure AJK-37 of Witness Statement of Amy Kelly.
[40] P. 619 of the DHB - Annexure AJK-39 of Witness Statement of Amy Kelly.
[41] P. 625, Ibid; p..663 of the DHB - Annexure AJK-44 of Witness Statement of Amy Kelly.
[42] P. 663, Ibid.
[43] P. 715 of the DHB - Annexure AJK-47 of Witness Statement of Amy Kelly.
[44] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[45] Ibid.
[46] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[47] Edwards v Justice Giudice [1999] FCA 1836, [7].
[48] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[49] [2020] FWC 2989.
[50] Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166.
[51] Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66 at 81-82; see also the other cases recited in Laing O’Rourke Australia Management Services Pty Ltd v Haley [2024] FCA 1323 at [466]-[470].
[52] P. 12, Transcript of Hearing (5 June 2025).
[53] P.13 and p. 14, Ibid.
[54] Ibid.
[55] Emma Horan v Tren Trading Pty Ltd t/a Dubbo Early Learning Centre[2019] FWC 3249.
[56] Ibid.
[57] Briginshaw v Briginshaw [1938] HCA 34 (30 June 1938), [(1938) 60 CLR 336]; cited in Barber v Commonwealth of Australia as represented by the Department of Parliamentary Services[2011] FWA 4092 (Thatcher C, 6 July 2011) at para. 33, [(2011) 212 IR 1].
[58] Briginshaw v Briginshaw [1938] HCA 34 (30 June 1938), [(1938) 60 CLR 336].
[59] Ibid., [(1938) 60 CLR 336] at pp. 362‒3].
[60] P. 970 of the DHB, Witness Statement of Mikaela Pohlner.
[61] P. 24 of the DHB - Annexure KB3 of Form F2, Unfair Dismissal Application.
[62] P. 922 of the DHB - Witness Statement of Donna Nicholson.
[63] Ibid at P.921 of the DHB.
[64] P 126, Transcript of Hearing (2 June 2025).
[65] P. 129 of the DHB – Applicant’s Submissions.
[66] P. 975 of the DHB - Witness Statement of Mikaela Pohlner.
[67] P. 100 to 102, Transcript of Hearing (2 June 2025).
[68] P. 73, Transcript of Hearing (3 June 2025).
[69] P. 42, Transcript of Hearing (4 June 2025).
[70] P.426 of the DHB - Annexure AJK-23 of Witness Statement of Amy Kelly.
[71] P. 431 to 433 of the DHB – Annexure AJK-23 of Witness Statement of Amy Kelly.
[72] P. 966 of the DHB – Witness Statement of Mikaela Pohlner.
[73] P.509 of the DHB - Annexure AJK-31 of Witness Statement of Amy Kelly.
[74] Chubb Security Australia Pty Ltd v ThomasPrint S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Reseigh v. Stegbar Pty Ltd[2020] FWCFB 533at [55].
[75] Read v Gordon Square Child Care Centre[2013] FWCFB 762, [46]-[49].
[76] Jenkins v Qube Ports Pty Ltd (Port Kembla) [2025] FWC 2447.
[77] See for example: Keith Rose v Tahmoor Coal Pty Ltd[2013] FWC 4291 (33 years' service); DP World Sydney Limited
v Printed by authority of the Commonwealth Government Printer
< PR792079>
Mr Stephen Lambley [2012] FWAFB 4810 (30 years' service); Renato Adrio v BlueScope Steel Limited [2014] FWC
1255 (35 years' service); Harbour City Ferries Pty Ltd v Christopher Toms[2014] FWCFB 6249 (17 years' service);
David Dawson v Qantas Airways Limited[2017] FWCFB 1712 (28 years' service).
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