Mr Leslie Walsh v Northern SEQ Distributor - Retail Authority Trading as Unitywater
[2025] FWC 2853
•24 SEPTEMBER 2025
| [2025] FWC 2853 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Leslie Walsh
v
Northern SEQ Distributor - Retail Authority Trading AS Unitywater
(U2025/912)
| COMMISSIONER DURHAM | BRISBANE, 24 SEPTEMBER 2025 |
Application for an unfair dismissal remedy – no valid reason – dismissal found to be harsh, unjust and unreasonable – reinstatement awarded – continuity of employment and compensation for lost pay awarded
Mr Leslie John Walsh had been an employee of Northern SEQ Distributor – Retailer Authority T/As Unitywater (Unitywater) since 1998. On 9 January 2025, following an investigation and show cause process, Mr Walsh was dismissed with immediate effect on the grounds of misconduct.
The circumstances of Mr Walsh’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).
Mr Walsh 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 Walsh seeks reinstatement to his former position, continuity of employment and compensation for lost pay.
For the reasons outlined below I have not found that Unitywater had a valid reason to dismiss Mr Walsh. 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
Mr Walsh’s colleague, Mr Keneth Bowler 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 Walsh’s application only.
Following an unsuccessful joint conciliation conference, both matters proceeded to hearing on 2 to 5 June 2025. At the hearing, Mr Walsh 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 Walsh gave evidence in support of his application, as did Mr Bowler. 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
It is not in dispute that:
a) Mr Walsh was dismissed on 9 January 2025;
b) Mr Walsh 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 Walsh’s employment was not a case of 'genuine redundancy' for the purposes of section 385(d) of the FW Act.
I am satisfied that Mr Walsh was protected from unfair dismissal at the time he was dismissed.[1]
Employment History
Mr Walsh had been employed by Unitywater, and its predecessors, since around 1998.[2] He performed various roles with Unitywater before being appointed to the role of Sampling Officer in 2020. Mr Walsh is 58 years of age and submits that he has had 27 years of service with Unitywater and its predecessors.
In 2012, Mr Walsh received a formal warning relating to behaviour at a training session. In 2013, Mr Walsh received a second and final formal written warning relating to failures to treat all colleagues with respect, fairness, sensitivity, dignity, and failures to adhere to Unitywater's Code of Conduct. During cross examination, Mr Walsh explained mitigating circumstances that were occurring in his personal life at the time, and noted that no such issues have arisen since that time. In the show cause letter sent to Mr Walsh dated 13 December 2024 Unitywater note that as these disciplinary matters were more than 10 years old, they would not be taken into account when determining what disciplinary action was to be taken in this matter.[3]
Employment relationship and relevant policies and procedures
Mr Walsh’s employment at all material times was covered by the Unitywater Water Industry Indoor/Salaried Staff Employees Enterprise Agreement No. 3 (the Agreement).
Mr Walsh’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 Unity Water Code of Conduct (as varied from time to time)”. Mr Walsh’s conduct was found to have breached:
(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.”
There is no dispute that Mr Walsh 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 Walsh’s completion of this training demonstrates that he had been trained in, and should have been fully aware of, his obligations arising from the above policies.
Unitywater did not lead any evidence as to the specific content of the modules completed by Mr Walsh, nor did they contest his evidence that:
the training he received did not go through the relevant policies line by line;
that he could not recall that any of the scenarios described in the training related to the particular circumstances of this matter.
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
The role of Sampling Officer (SO) is a part of the Sustainable Infrastructure Solutions (SIS) team. Prior to 7 November 2024, Mr Walsh was one of seven SO’s, reporting to the Laboratory Sampling Supervisor, Ms Donna Nicholson. Ms Nicholson reported to the Laboratory Manager, Mr Habibur Rahman.[4]
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 Walsh 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
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.
Mr Walsh did not apply for the role however he was aware that his colleagues Mr Bowler and Mr Michale Ewin had applied for and been interviewed for the position. Relevantly, 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 SOs saw the role as a serious promotional opportunity to aspire to in the future. I have taken this to be a view that was shared by Mr Walsh.
During her oral evidence, Ms Kelly confirmed that the SSO position was advertised internally, and as such, only employees of Unitywater could apply.[6] Mr Walsh maintained throughout the investigation, his understanding that probationary employees were exempt from applying for internally advertised promotional positions.
Discussions about the role
Mr Walsh recalled having asked Ms Pohlner on both 23 September and 17 October 2024 if she was applying for the SSO position and recalls that she had told him “no, she wasn’t applying because she hadn’t been here long enough and she needed more training an experience”. Ms Pohlner disputes having ever had a discussion with Mr Walsh in which she disclosed if she did or did not intend to apply for the position:
“So you never talked about yourself applying or not applying for the job with either of them?---Correct.”[7]
During cross examination however, Ms O’Connor seemed to accept that Mr Walsh had asked these questions of Ms Pohlner as her questions to Mr Walsh focussed on why Mr Walsh thought it was appropriate to ask such questions and why Ms Pohlner may not have provided an “honest” answer:
“So and you explain there that you'd asked her a number of times if she'd applied
for the position, and she told you that she had not?---Yes.”[8]
……
“Just because you've decided to ask her for some confidential information, does
that mean she had to give you the honest answer, did it?---No.”[9]
Ms Pohlner is announced as successful candidate
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
Shortly after, Mr Walsh and Mr Bowler were overheard in the hallway discussing the appointment. It was alleged that in the presence of Mr Kerkow, Mr Somodia and Ms Hadfield, Mr Walsh made a range of “offensive, intimidating and unprofessional remarks”.
Mr Walsh accepts that he and Mr Bowler 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.
Mr Kerkow recalls that he heard Mr Walsh and Mr Bowler 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".
Mr Walsh denied that he made some of these specific statements, accepting that he had made others. Mr Walsh accepts that he made comments along the lines of:[10]
a)“She lied to me”;
b)“I asked if she'd gone for it, she said she hadn't";
c)“Not fucking happy”;
d)“She fucking lied to me”;
e)"She's only been here six weeks, shouldn’t have gone for it;
f)"There had been a recruitment process and Mikaela had lied about going for the role and Mikaela had got it". (Mr Walsh however dispute this comment was made in the hallway, rather he recalls it was said directly to Mr Kerkow in the office)
Conversation with Ms Hadfield
Shortly after Mr Walsh and Mr Bowler approached Ms Hadfield’s desk. Ms Hadfield’s desk is situated near Ms Maddison McNee. The evidence of Ms Hadfield and Mr Kerkow is consistent to the extent that Mr Walsh and Mr Bowler appear to have continued to make statements similar to those listed above. Ms Hadfield recalls that as Mr Walsh approached her desk, Mr Walsh stated “It’s a fucking joke” in a very angry tone of voice”.[11]
Ms Hadfield recalls that Mr Walsh then made the following statements to her and Ms McNee:
“It’s a fucking joke, it’s fucking bullshit, have you heard about the L4? They’ve given it to someone with no experience and they’re still on probation and they’re new” ; and
“I’m fucking done, I’m not helping her, I’m not helping her with anything — I’m done.”
Mr Walsh recalls making the first statement, but says it was made to Mr Kerkow who had asked him if he was ok.[12] It is Mr Walsh’s evidence that he did not make the second statement as alleged, but concedes that he may have said words to the effect of “They’ve given it to someone with no experience, and they are still on probation and they are new”. Mr Walsh rejects that he said “I’m fucking done, I’m not helping her with anything else – I’m done” or similar.[13] However Mr Walsh did note in his 21 November 2024 response that he did say words to the effect that “I will not be able to help train her because the new position is meant to be training us as the lead sampler”.
Ms Hadfield then says that Mr Walsh stated words to the effect that he hated Mr Rahman, before stating “He’s a greezy……”. It was Ms Hadfield’s evidence that as Mr Walsh commenced making this statement, she put her hand up to signal he should stop, “as she thought he was about to make a racial slur”.[14] Mr Walsh denies saying that he hated Mr Rahman or that he referred to Mr Rahman as "greasy" or anything similar.[15] Mr Walsh also refutes the suggestion that Ms Hadfield said anything to him or put her hand up as described to stop him saying anything.
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:[16]
“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 between Ms Nicholson and Ms Hadfield.
It is Ms Nicholson’s evidence that having received Ms Hadfield’s email, she walked to Ms Hadfield’s desk where she was advised that Mr Walsh had said words to the following effect in front of Mr Kerkow and her:[17]
a)“I’m not going to train her”’;
b)“I hate Unitywater”’;
c)“Habib is a greasy black (something)”; and
d)“I’m going to the union”.
Conversation between Ms Nicholson and Mr Walsh
Having received Ms Hadfield’s email, Ms Nicolson sought out Mr Walsh. It is Ms Nicholson’s evidence that they discussed why he was upset and stated that she was disappointed that he had acted that way in front of his colleagues and indicated that she was ”so annoyed and angry” with Mr Walsh.[18]
By Ms Nicholson’s account, they discussed why he felt the way he did and that Mr Walsh referred to the appointment as a “slap in the face” for Michael Ewin”. Ms Nicholson says that she explained the process and that Ms Pohlner had performed the best during the interview and was the best candidate. Ms Nicholson said that Mr Bowler said “I’m sorry but I’m only apologising to you, I’m not apologising to anyone else”.[19]
It was Ms Nicholson’s evidence that she spoke to Mr Walsh because she felt he was acting as if Ms Pohlner had done something wrong, and she wanted to be sure that he did not confront Ms Pohlner or make her working life difficult by acting inappropriately towards her. When recalling this conversation, Ms Nicholson makes no mention of having raised the alleged comment about Mr Rahman, nor that she felt it necessary to warn him that any of his conduct may have been in breach of the Code or the Policy.[20]
Mr Walsh recalls the conversation, noting that Ms Nicholson made no reference to the comment he was alleged to have made about Mr Rahman. Mr Walsh recalls that he apologised to Ms Nicholson and said words to the effect of “I would apologise to most of the people involved”.[21]
Conversations on the back deck
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 Walsh and Mr Bowler were sitting approximately five meters away from them, having a private conversation. 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.[22] 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”.[23]
Mr Somodio, who was also on the deck having his lunch recalls a discussion with Mr Walsh. Mr Somodio recalls that Mr Walsh appeared very frustrated when he asked “Have you heard of the announcement?” before saying words to the effect of:[24]
“How can you appoint her as a senior officer when you’re still on probation?”
“I’m taking her out onto a new field to a new site, I’m not going to train her.”
Shortly after this interaction, Mr Somodio recalls Mr Ken Knyyett coming out and saying to him “I spoke to Habib; I warned him this may happen”.
Mr Walsh denies making the express comment overheard by Mr Kerkow but does recall making a comment about an “apprentice training a tradesman” in his earlier conversation with Mr Kerkow inside.[25]
With respect to the comments recalled by Mr Somodio, Mr Walsh agrees that he was frustrated, but notes that his comments were directed at the process, not Ms Pohlner personally. As to comments regarding training, Mr Walsh contends that he actually said words to the effect that “she should have enough knowledge to do the job”.[26]
Friday 8 November 2024
It is Ms Pohlner’s evidence that after arriving at the office with Mr Bowler, Mr Bowler walked toward Mr Walsh who was also in the carpark. It is Ms Pohlner’s evidence that as she walked past, Mr Walsh ignored her greeting, and “just glared in my direction”.[27]
Mr Walsh agrees that he was in the carpark at that time, but says he did not see Ms Pohlner at all. Mr Walsh says that he arrived in the carpark at around 6.30am that morning, before grabbing his lunch and safety gear and placing it next to Mr Ewin’s ute, which was parked next to Mr Bowler’s. Mr Walsh then walked into the mini lab where he saw Mr Bowler and Mr Ewin preparing for the day. Mr Walsh says that around 6.40am he and Mr Ewin went outside together, loaded their car and left for the day.[28]
It is Mr Bowler’s evidence that after parking his ute, Ms Pohlner entered the building and he followed shortly after. Mr Bowler says he did not see anyone other than he and Ms Pohlner in the carpark, and recalls that some time after he and Ms Pohlner had arrived, he saw Mr Walsh enter the lab as described above.[29]
Monday 11 November 2024
Ms Kellie O’Meley had been absent from work on the 7 and 8 November 2024. She recalls that on returning to work on Monday 11 November 2024, she exchanged morning greetings with Mr Walsh and Mr Ewin, after which Mr Walsh said words to the effect of “have you heard about the L4”…. “Mikaela got it”. Ms O’Meley recalls that Ms Pohlner arrived shortly after and Ms O’Meley congratulated her on her appointment. Once Ms Pohlner left, Ms O’Meley recalls Mr Walsh saying words to the effect of “your congratulating her?” and “she lied because she said she wasn’t going for the job. She’s not been here for long”.
It was Mr Walsh’s evidence that he started the conversation with the question “have you congratulated her?”. He accepts that he made the next comment as recalled by Ms O’Meley, but that he also said, that “she needed more experience”.[30]
Ms Nicholson seeks assistance from Unitywater’s Human Resources Department
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:
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.
At 3:50pm Ms Nicholson sent the following email to Ms Kelly:
12 November 2024
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 the alleged behaviour of Mr Walsh, Mr Bowler and Mr Ewin as outlined in Ms Nicholson’s email.
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 Walsh 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:[31]
“(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.”
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:
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 Walsh 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 the three men would be stood down. Ms Nicholson was asked to make arrangements for Mr Walsh and his colleagues to be in the office in time for their scheduled meetings.
Ms Pohlner says that she decided she should make a formal complaint because she considered that Mr Walsh and his colleagues were not likely to change their behaviour 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 Teams messages were exchanged between Ms Larkin and Ms Nicholson in which the decision to stand Mr Walsh down had already been made.
Mr Walsh is stood down
The following day, 13 November 2024, Ms Nicholson called Mr Walsh to advise him that he was required to attend a meeting with Ms Kelly and Mr Basterfield. At 11:00am that same day Mr Walsh was advised that he did not need to bring his union representative to the meeting.
At the meeting, Mr Walsh 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 Walsh was stood down of full pay until the matter was resolved and that Ms Kelly would be in contact to discuss next steps in the process.
The Investigation
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 Walsh, “based on the complaint received by Ms Nicholson and Ms Pohlner”.
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:
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?
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.
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
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.
Ms Pohlner was asked the following questions relevant to Mr Walsh’s alleged conduct:
“- 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?”
On 15 November 2024, Ms Kelly sent an email to Mr Walsh 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
18 November 2024, Mr Walsh 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.
Attached to the letter as “Schedule A” was a table noting a single allegation of “Offensive, Intimidating, and Unprofessional Conduct”. Within this allegation, the following was provided:
“Allegation: Offensive, Intimidating, and Unprofessional Conduct
It is alleged that between the end of September 2024 and 11 November 2024, at various locations within the Southern Service Centre, Mr. Leslie Walsh, Sampling Officer, engaged in a series of offensive, intimidating, and unprofessional behaviours repeatedly toward colleague, Ms. Mikaela Pohlner, Senior Sampling Officer, and others.
On or around the end of September to the middle of October 2024, during a workplace discussion, in the presence Ms Mikaela Pohlner, Mr. Walsh allegedly referred to his manager, Habibur Rahman, using discriminatory and offensive language, saying words to the effect of:
• “Habib is a mini-Hitler.”
On or around 12:30pm on Thursday, 7 November 2024, in the hallway between the laboratories and on the back deck at the Southern Service Centre, in the
presence of Russell Kerkow, Dawn Hadfield and Jerome Somodio, Mr. Walsh allegedly made the following statements:• “Not happy Jan, this is unfair.”
• “I hate Habib, he’s a greasy [derogatory term].”
• “I’m not helping her; I’m not training her.”
• “It’s a fucking joke, it’s fucking bullshit, have you heard about the L4?”
• “She’s a liar.”
• “She shouldn’t have applied as she doesn’t know what she’s doing.”
On or around 6:30am on Friday, 8 November 2024, in the car park at the Southern Service Centre, in the presence of Mr Kenneth Bowler, Mr. Walsh allegedly:
• Ignored Ms. Pohlner when she greeted him.
• Glared at Ms. Pohlner in an intimidating manner.
On or around 6.30am on Monday 11 November 2024, in the office at the Southern Service Centre, in the presence of Kellie O’Meley and Michael Ewin, Mr
Walsh allegedly made the following statement:• “she lied to me…she lied because she said she wasn’t going for the job”.
Mr Walsh was advised that this conduct may constitute breaches of his employment agreement, the Code and the Policy.
Mr Walsh 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 the 25 November 2024. It was noted that Mr Walsh could bring a support person to the meeting.
On 21 November 2024, Mr Michael Anderson, Organiser with the AWU, provided a response on behalf of Mr Walsh. Mr Anderson noted that the AWU had sought an extension until 25 November 2024, to enable them to assist Mr Walsh to provide a comprehensive and thorough response. An extension to the 21st was granted. Mr Anderson noted that Mr Walsh’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”.
In short summary, Mr Walsh denied making many of the specific statements attributed to him, but did accept some. In other cases, he provided his explanation of what he recalled he had said and why he had said it. Mr Walsh concludes by stating that he has been deeply upset by what has happened and saddened to think that this has damaged “the trust and honesty we had in the process and our unit “family”. The response ended noting his commitment to his role, that he would welcome the opportunity for further training, and that he wanted to come back and work as a team to “get us all back on track”.
Mr Walsh’s Interview
On 25 November 2024, Mr Walsh, supported by Mr Anderson, attended an interview with Ms Kelly and Mr Basterfield. During the interview, Ms Kelly took handwritten notes, which she later formatted as a record of interview. Mr Walsh’s record of interview follows the same format as other interviews conducted. Under the heading “Questions” is a list of the specific questions asked. The responses follow, listed in dot point form.
Mr Walsh was asked the following questions during his interview:
Although you have denied referring to Habib as mini-Hitler, you have stated you referred to him as a "little hit man" in the context of him wanting to get his own way. It is alleged this statement was made by you before the recruitment process had even commenced why do you think you would have made that comment?
Do you think it's appropriate to talk about a leader in this way?
You haven't denied that you said "not happy Jan, this is unfair" do you think this comment was intimidating?
Do you think its unprofessional? Do you think it's in line with UW behavioural expectations?
In your written response you state you do not recall saying "you hate Habib he's a greasy” even though you do not recall it, we have witness statements who advise they witnessed this. Do you think this behaviour is acceptable? Do you think comments like this are intimidating or offensive?
In your written response "I will not be able to help train her because the new position is meant to be training us as the lead sampler"- when you say this, if Ms Pohlner had asked a question that you did know the answer to, would you have helped her?
You've admitted in your written response that you had responded that you had responded to Mr Kerkow's question of "are you ok" comment with "not happy Jan, this is unfair". You've also admitted that you said "it's a fucking joke, it's fucking bullshit" to the same question. Do you think this behaviour is intimidating or offensive?
In your written response you have admitted that you called Ms Pohlner a liar regardless of whether you believe it to be factual do you think this behaviour is appropriate? Do you think it offensive or intimidating?
Do you think the behaviour is in line with UW behavioural expectations?
In your written response you have admitted you said "she shouldn't have applied she doesn't know what she's doing' what was your intent in saying this?
In your statement you've written that you're not sure what 'glaring at Ms Pohlner in an intimidating manner" refers to for clarity, this is relating to when Ms Pohlner and Mr Bowler arrived together in a UW ute on Friday 8
November. Do you recall them arriving at work that day? Do you recall glaring?
What do you mean by "old school"?
Ms Kelly took notes during the interview and these were sent to Mr Walsh. Mr Walsh confirmed via reply email dated 27 November 2024, that he was happy to move forward with the notes as provided.
Investigation Report
Having undertaken one interview with each witness, Ms Kelly moved to finalise her investigation report. The report noted that an “evidence-based investigation” was conducted into the concerns which needed to be addressed by Unitywater, including any potential breaches of the Code, policies, procedures, guidelines etc.
The report then notes that “having considered the evidence, the following finding is made:[32]
“Findings
On the balance of probabilities, the allegation was found to be Substantiated. The investigator found that Mr WALSH engaged in a series of offensive, intimidating and unprofessional behaviours.
Mr WALSH confirmed in his response that he did make a number of these statements, or words to that effect and multiple witnesses also observed Mr WALSH’s behaviour.”
Under the heading “Risk Analysis”, Ms Kelly states that “the investigator found that Mr Walsh behaved in an offensive, intimidating and unprofessional manner on multiple occasions. She then referenced case law relating to instances of bullying behaviour being found to have been serious misconduct before going on to find:[33]
“In conclusion, the investigator found that Mr WALSH’S behaviour constituted serious misconduct and that there is a high risk of the behaviour continuing. The investigator also found that Mr WALSH’S behaviour poses a serious risk to the health and safety of Unitywater team members and believes the risk will increase over time”.
Under the heading “Final Summary and Key Conclusions” the report confirms that Mr Walsh has been found to have “behaved in an offensive, intimidating and unprofessional manner on multiple occasions”. The report then goes on to discuss a range of further matters, and what could best be described as observations including:
“Although Mr WALSH did not make any inappropriate comments to Ms POHLNER, the investigator found the repeated aggressive and intimidating nature of his behaviour to be significant.”
“The investigator found Mr WALSH had reflected and thought that his conduct was inappropriate, and the investigator thought for the most part, Mr WALSH was apologetic for his behaviour.”
“Mr Walsh’s alleged conduct 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.”
In conclusion, the investigator found that Mr Walsh’s behaviour constituted serious misconduct and that there is a high risk of the behaviour continuing. As such, the investigator also found that Mr Walsh’s behaviour poses a serious risk to the health and safety of Unitywater team members. It was recommended that Mr Basterfield consider the findings and observations in the report and any further action, and that the general findings be communicated to Mr Walsh.
Show Cause letter
On 4 December 2024, Mr Walsh was issued a show cause letter. The letter advised that the investigation had been completed and that the allegation had been substantiated, with the investigator making the following additional “factual findings” regarding Mr Walsh’s conduct:[34]
“You have made a number of offensive and inappropriate remarks about Ms Pohlner and Mr Rahman 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 unprofessional and intimidating behaviour in an open office environment on a number of occasions. This behaviour intimidated multiple Unitywater team members and created a negative working environment for observers.”
Mr Walsh was further advised that, in view of the substantiated allegations, and the conclusion arising from the investigation, that his conduct was in breach of the Code, the Policy and his employment contract.
Mr Walsh was advised that these findings and breaches were very serious and as such, Unitywater was considering the termination of his employment. Mr Walsh 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.
Following an exchange of emails between Mr Kelly and Mr Anderon, Mr Walsh was provided an extension of time to provide his response by 9 December 2024 and the meeting was rescheduled for 12 December 2024.
Mr Anderson provided a response on behalf of Mr Walsh on 9 December 2024. The response raises a range of factors that he says ought to be taken into account when considering whether the termination of Mr Walsh’s employment is just, fair, and reasonable. These included Mr Walsh’s age, his years of service, that he had no history of disciplinary action and the difficulties he would encounter finding alternative employment. The response then goes on to note:[35]
“Mr Walsh’s intentions were not to cause any harm, and he is deeply sorry for his part in this incident and is remorseful that this has been used to terminate him. He believes he can show that this is not how he would normally behave. He recognises he was wrong and can work on becoming a better employee if given the chance.”
The remainder of the response can be summarised as follows:
· There has been very little validation shown for the substantiation of the allegations, even if substantiated, the allegations either individually or collectively would not provide valid, evidentiary reason for his dismissal
· A range of witnesses where not interviewed
· Mr Walsh was not provided any witness statements, or the investigation report
· There is no evidence of “repeated behaviour” or that he had “on repeated occasions, acted in an unprofessional and intimidating manner”
· Some of the alleged conduct is admitted, but does not support termination
· It was reasonable for Mr Walsh to have been upset about a recruitment process that did not appear to him to have been fair and equitable.
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. In response to the assertion that Mr Walsh had not faced disciplinary action, Unitywater advised that Mr Walsh had in fact received a written warning in 2012 and a second written warning in 2013, however, as noted earlier, as these matters were over ten years old, they would not be taken into account.[36] Mr Walsh was provided until 20 December 2024 to present any relevant material or considerations which might demonstrate why Unitywater should not terminate his employment.
On 20 December 2024 Mr Anderson provided a further response. Within this response, Mr Walsh directly addresses Unitywater. Mr Walsh apologises for the oversight with respect to his previous disciplinary warnings, and explains the personal circumstances at the time before thanking Unitywater for not including these previous actions in their decision.
Mr Walsh addresses the significant impact that a decision to dismiss him would have, before making the following statement:[37]
“I recognise that I need to take responsibility for my actions and what I say, and I would like to apologise for calling Mr Rhaman a "little hit man." Even though at the time, I believed there was nothing wrong with saying it as I was using in as a positive remark in that he gets the job done. I can understand I should not have said it as the person or people who heard it may not have the same thought on what I was thinking and meaning
it to be. I know now not to say anything that could make people upset.”
Mr Anderson then goes on to dispute the conclusion that the substantiated conduct would meet the standard of serious misconduct. It is noted that a disciplinary penalty may be appropriate but again stated that a decision to terminate Mr Walsh’s employment would be harsh.[38] In the alternative, Mr Walsh suggests that other disciplinary action, such as training or re-training, a move to another unit, and/or providing a written apology to the affected colleagues would be more appropriate.
Mr Walsh is advised of his termination
On 6 January 2024, Mr Walsh received correspondence from Mr Hibberd, titled “termination of your employment with Unitywater”. Mr Walsh was advised that the allegation 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.[39]
The correspondence goes on to suggest that Mr Walsh has “inserted himself into a situation you had no business involving yourself in”, and that he had “on multiple occasions behaved disgracefully towards a colleague”.[40] Mr Hibberd goes on to state that the substantiated behaviour was deliberate, and designed to belittle and embarrass Ms Pohlner.
Mr Walsh was advised that his employment was terminated with immediate effect. He was paid five weeks pay in lieu of notice.
WAS MR WALSH UNFAIRLY DISMISSED?
The criteria that I must consider when deciding whether Mr Walsh’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?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[41] and should not be “capricious, fanciful, spiteful or prejudiced.”[42] 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.[43]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[44] “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.”[45]
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:[46]
“[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.”
I have applied these principles to the matter before me.
Mr Walsh’s Submissions
Broadly speaking, Mr Walsh 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 Walsh.
Mr Walsh relies on the responses he provided during the investigation and notes that had these been afforded proper consideration, Unitywater could not have reasonably have made the findings of fact they did.
In closing submissions, Mr Taylor made a number of observations regarding failings in the investigation process and notes that Mr Walsh 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
In summary, it is submitted that Unitywater did not have a valid reason for terminating Mr Walsh’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 Walsh was accordingly unfair.
Respondent’s Submissions
Unitywater submit they had a valid reason for dismissing Mr Walsh. They say that, having substantiated each of the sub allegations made against Mr Walsh, it was open to them to conclude that the “substantiated behaviour was not only deliberate, but….it was designed to belittle and embarrass Ms Pohlner”.
It is suggested that Mr Walsh’s offensive and intimidating behaviour was not only directed towards Ms Pohlner, but had been directed towards his manager Mr Rahman, by describing him as a “mini Hitler” or as he contended, a “little hit man” in the previous months. While Unitywater was prepared to accept it may have been the latter, on either view it was a derogatory term towards his manager. That was not isolated conduct, because he had also stated in front of at least one other colleague, “I hate Habib, he’s a greasy..” before stopping himself when that colleague put her hand up in indication for him to stop.[47]
Whilst noting that Mr Walsh admitted much of the alleged conduct and expressed some remorse, he consistently sought to rationalise his behaviour on the basis that Ms Pohlner “lied”, and it was reasonable for him to be upset about a recruitment process in which he disagreed with the outcome. It is suggested that Mr Walsh made a partial admission with respect to the allegations concerning Mr Rahman but demonstrated no insight, and expressly did not admit referring to him as “greasy”, demonstrating, they say, that he was not completely frank in the investigation.
Unitywater submit they have a duty of care to ensure the health and safety of Ms Pohlner, Mr Rahman and other workers it engages. It argues that Mr Walsh’s conduct was clearly unacceptable in any workplace that values respecting one another, and that does not tolerate racist, sexist or discriminatory behaviour. It was also inconsistent with his statutory obligations as a worker under the Work Health and Safety Act, which require him to take reasonable care that his acts did not adversely affect the health and safety of others, the Code and the Policy which are designed to reflect those statutory obligations, and his employment contract.
Having formed the view that Mr Walsh’s conduct was not isolated and that he had not entirely admitted it, nor demonstrated appropriate insight, Unitywater could not have any degree of confidence that it would be able to discharge its workplace obligations if Mr Walsh had remained employed. Unitywater say that, in any practical sense, the continuation of his employment in those circumstances was simply untenable, and would have exposed each of them, and others, to ongoing risk of similar behaviour by Mr Walsh.
Relevant to the allegations relating to Mr Walsh’s alleged conduct in the carpark on the morning of 8th November, Unitywater did concede in their closing submissions not only that they should have disclosed to Mr Walsh that they had accessed GPS data, but further, that when he asked to access it, it should have been provided. It was also conceded that both Mr Walsh and Mr Bowler should have been interviewed about the incidents they observed.
Whilst not immediately instructive to the question of valid reason in this matter, I consider Unitywater’s concessions regarding the recording of the conversation between Ms Pohlner and Mr Bowler on 8 November 2024 are instructive when assessing the credibility of the witnesses and the investigation more generally.
What reason was given for the dismissal?
Having substantiated the allegation made against Mr Walsh, and considered several observations made by the investigator, Unitywater determined that he had variously breached the Code, the Policy and his employment contract.
Mr Hibberd’s 6 January 2025 termination letter states that the various mitigating factors raised by Mr Walsh had been taken into account, but that they must be balanced against his conduct which, they say was totally unacceptable. They contend that Mr Walsh’s conduct was so serious that the only reasonable outcome was the termination of his employment.
Observations on the witness evidence
Mr Walsh
For the most part, I found Mr Walsh to be a credible witness, willing to concede where challenged. Under the pressure of cross examination, Mr Walsh displayed some signs of frustration, and was at times, quite direct in his answers. Mr Walsh remained steadfast in his view that his reaction to the announcement of Ms Pohlner’s appointment was due to his understanding that she was ineligible to apply due to being on probation, and that Ms Pohlner had lied to him. Mr Walsh maintained that the allegations put to him were confusing and had conflated the recollections of those interviewed across the various events the subject of the investigation. The strong theme of his evidence was that whilst he accepted that he engaged in several of the discussions, he was not willing to accept, the factual findings that he had made certain specific statements as put to him during the investigation. There are certain elements of Mr Walsh’s evidence, particularly with respect to his conversation with Ms Hadfield that I found difficult to accept, and this will be further explored below.
Ms Pohlner
I found several elements of Ms Pohlner’s evidence to be problematic. 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.
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.
Whilst not instructive as to Mr Walsh’s conduct, several issues of credibility arose during her cross examination with respect to the conduct of Mr Bowler. 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 a recording she had taken of a private conversation she had with Mr Bowler, which clearly identified 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.
In stark contrast to Mr Walsh, 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 Walsh’s conduct.
Ms Kelly
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.
Several elements of Ms Kelly’s evidence raised questions regarding her credibility. Ms Kelly was observed to pause regularly to check her statement rather than answering questions candidly. In particular, Ms Kelly’s cross examination highlighted key omissions from her witness statement and inconsistencies with the evidence of Ms Pohlner relating to a recording of Mr Bowler that had been taken by Ms Pohlner, raising further questions as to the credibility of her evidence generally.
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
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 upon by the investigator to make findings of fact.
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 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.
I have had regard to these observations when considering the facts and circumstances of this matter.
The allegation
The way in which the allegation was presented to Mr Walsh was at best confusing. The substantiated allegation was the Mr Walsh had engaged in “Offensive, Intimidating and unprofessional conduct”. Under this broad heading were a range of comments, or sub-allegations that referred to comments that Mr Walsh was said to have made to a range of people across several dates, ranging back over the past few months.
I found the continued use of terms and headings such as “repeated”, “undermining”, “discriminatory” and “offensive” 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.
Similar issues then flow into the format of the show cause letters and the final letter of termination resulting in what could be 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 Walsh and his representatives to have known precisely what they were responding to.
In order to determine the existence or otherwise of a valid reason, I have found it necessary to put the allegation as put to one side, and instead, consider what appear to have been the key events that resulted in the allegation being made. My considerations have been grouped as follows:
Sept/October 2024 Incident 1 Conversations with Ms Pohlner 7 November 2024 Incident 2 Discussions in hallway and at Ms Hadfield’s desk Incident 3 Discussion with Ms Hadfield Incident 4 Comments on the back deck 8 November 2024 Incident 5 Conduct in the carpark 11 November 2024 Incident 6 Comments in Lab
General observations and findings
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 when considering the facts and circumstances of this matter.
Unitywater’s management of the situation
Considering the demographics of the unit, and with the knowledge that Mr Bowler and Mr Ewin, both long term employees had applied for the SSO role, 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.
Had such steps been taken, or had Ms Nicholson taken more assertive action to address any perceived issues immediately they arose, the circumstances of this matter may have played out quite differently. That Ms Nicholson did not reach out to HR for assistance until the afternoon of 11 November 2024, supports a presumption that she was not overly concerned by Mr Walsh’s conduct and that she did not consider he posed any imminent threat to the health and safety of others.
This does raise the question of whether the events that followed Ms Nicholson’s 11 November 2024 request for HR’s assistance by way of “a chat sometime this week” were proportionate to the situation.
Was Ms Pohlner eligible to apply for the SSO position?
I found Mr Walsh’s written and oral evidence was consistent with respect to his understanding that probationary employees were not eligible to apply for internally advertised promotional positions. Interestingly, whilst Unitywater highlighted to Mr Bowler during cross examination that he could have raised his concerns in this regard in a different way, I have seen no evidence to suggest that Mr Walsh or Mr Bowler were ever advised that their presumption was incorrect, either at the time, during the investigation, or by way of evidence or submissions in this matter. Whilst it is clear that the union did lodge a grievance relating to the process, no evidence was led to confirm whether or not such an investigation took place, or its outcome.
I do not have sufficient evidence to conclude whether Ms Pohlner was eligible to apply for the position or not however on balance, I accept that this was Mr Walsh’s reasonably held understanding at the time. Viewed objectively, I find it was reasonable that Mr Walsh was surprised and confused by the announcement of Ms Pohlner’s appointment.
Did Mr Walsh have a history of being angry or aggressive?
Both parties devoted significant attention to the question of whether or not Mr Walsh’s comments were made in anger. There are several inconsistencies across witness evidence in this regard. Mr Kerkow’s statement suggest that Mr Walsh appeared angry, frustrated and upset, yet his record of interview is less certain, stating that Mr Walsh appeared to be getting increasingly “angry/upset”. Mr Somodio is similarly un-committal also using the terms “angry/upset”.[48] There is a clear distinction between someone being angry and someone being upset, yet these terms have been used interchangeably.
Ms Hadfield however, was clear in both her statement and her record of interview that she had observed Mr Walsh to be angry, however when she sent her email to Ms Nicholson immediately following the relevant interactions, she simply advised that Mr Walsh and Mr Bowler were “not very happy at all” and that they had advised they were going to the union.[49]
During his interview, when asked what being old school meant, Mr Walsh is said to have replied "be hard, work hard do your job… I wear my heart on my sleeve, I say what I say, sometimes I don't even know what I say, I get anger/frustration/talk too much sometimes."[50] In his witness statement however, Mr Walsh disputed having used the term anger, rather that he had simply agreed that he does get upset, and frustrated, but not angry.
I accept that Mr Walsh’s demeanour, particularly on 7 November 2024 may have been viewed by some to have been angry however, as demonstrated in the range of characterisations provided above, whether or not some is angry, frustrated or upset is an extremely subjective assessment. It is also relevant that none of the comments Mr Walsh is said to have made about Ms Pohlner were made directly to her, nor where the comments about Mr Rahman made directly to him.
Ms Nicholson did not observe any of the incidents the subject of this decision, however she noted in both her record of interview and her statement that she had previously observed Mr Walsh to be quick to anger and that he openly expressed his discontent when things did not go his way. It is somewhat curious then, that Ms Nicholson describes herself as being “angry” when she spoke to Mr Walsh regarding the comments he was said to have made to Ms Hadfield.
In his reply statement, Mr Walsh specifically addresses Ms Nicholson’s comments, again, denying that he is quick to anger, although accepting that he can sometimes be disappointed or frustrated. Mr Walsh notes, and I agree, that there is no specific allegation made by Ms Nicholson in this regard, nor have I seen any evidence to suggest that she had previously taken issue with the way Mr Walsh conducted himself, or counselled him with respect to any alleged anger issues. Ms Nicholson’s evidence in this regard has been weighted accordingly.
I accept Mr Walsh’s evidence that he gets frustrated and upset. Having found it was reasonable in the circumstances for Mr Walsh to have been surprised and confused by the announcement, coupled with Unitywater’s failure to manage the announcement process, on balance Mr Walsh may well have been angry. I find that any such anger however, would reasonably be characterised as a heat of the moment reaction. This finding is supported by the fact that Ms Nicholson, having spoken to Ms Hadfield regarding what she observed Mr Walsh to have said, immediately sought him out to discuss his actions. Relevantly, the evidence suggests that Ms Nicholson must have been satisfied with the discussion, as no further action was taken.
Were exact phrases uttered
There is a clear tension running through much of the evidence with respect to whether actual phrases were uttered, or whether Mr Walsh had said “words to the effect of”. I have observed a strong inference in Unitywater’s evidence and submissions that the words as described by them were the actual words spoken. As an example, I regularly observed Unitywater contend that Mr Walsh and Mr Bowler had called Ms Pohlner “a liar”, even though Mr Walsh was said to have used this term once, and Mr Bowler was not accused of using the term at all. Even during closing statements, Ms O’Connor referenced both applicants “calling a colleague a liar in the middle of the office”.
The impact of these inferences was significant, particularly during cross examination and provides some useful insight into Mr Walsh’s consistent refusal to concede that he had uttered certain phrases. Using this particular example, I accept that there is a clear distinction between calling someone “a liar” and suggesting that they have lied. To call someone a liar, is suggesting a level of dishonesty that extends beyond any one instance such that it can be viewed as an attack on a person’s character. I accept that being called a liar is highly accusatory and would be offensive to most people.
On the other hand, suggesting that someone has lied is quite different, particularly when, as is the case in this matter, the term has been used to refer to a particular statement or action rather than making a general judgment about the person's character.
Similarly, Ms O’Connor referred to “using racial slurs” yet there was no allegation or finding made by Unitywater that Mr Walsh used such a term.
Incident 1 - Conversations with Ms Pohlner September/October 2024
The first version of Ms Pohlner’s record of interview, attributed this comment to either Mr Walsh or Mr Bowler. It was not until Ms Pohlner’s email to Ms Kelly on the evening after her interview, that Ms Pohlner confirmed that it was said by Mr Walsh. Ms Pohlner provided no other evidence as to the full context of the discussion in which it was said. Mr Bowler recalls the conversation and that they spoke about a range of things, including Ms Pohlner’s family, her interests and other related topics. Mr Walsh also recalls that this was the first time he had asked Ms Pohlner if she was going for the SSO position, to which she replied with words to the effect of "No, I need more training and more experience on-site”.
Mr Walsh denies referring to Mr Rahman as a "mini Hitler". It is Mr Walsh’s evidence that he had referred to Mr Rahman as "a little hitman" meaning that as their manager, Mr Rahman was the top of the ladder, and that she should not get in his sights. It is also of note that I have seen no evidence to suggest that Ms Pohlner took issue with the comment at the time, or felt the need to mention it during her interview with Ms Kelly.
As this comment was made during a private conversation between two co-workers, the overall credibility of the witnesses is particularly relevant. On balance, I prefer Mr Walsh’s account of what was said and find that it was most likely Mr Walsh referred to Mr Rahman as a “little hitman”.
I note Unitywater concede that it is possible that Mr Walsh made the comment he recalls, however argue that either way it was a disparaging comment about his manager. I accept Mr Walsh’s explanation of the comment and I have not been convinced that it was offensive, or intimidating as alleged. Had the comment been made in public, or directly to Mr Rahman, it may have been deemed to have been unprofessional, however, in all of the circumstances, I do not consider that it was.
I have not been convinced that Mr Walsh’s conduct was offensive, intimidating or discriminatory, nor that it could reasonably be considered to be bullying or sexual harassment. I do not find Mr Walsh’s conduct in relation to Incident 1 was in breach of the Policy, nor was it a valid reason for his dismissal.
Incident 2 – Discussions with Mr Bowler in the hallway
I have observed no evidence to suggest that the discussions in which Mr Walsh is said to have made the alleged comments were held in the presence of Ms Pohlner, and as such it would be unreasonable to conclude that they were intended to intimidate her. It is also relevant that these discussions were held immediately following the announcement of Ms Pohlner’s appointment, which I accept had taken both men by surprise and as such, can reasonably be viewed as having been held in the heat of the moment.
I agree with Mr Walsh’s submission that it is not clear whether Unitywater contend certain statements were made in the hallway, on the deck or at Ms Hadfield’s desk. It is also relevant the Mr Kerkow, who was the only witness to have overheard the conversation in the hallway, was not sure what had been said by Mr Walsh and what had been said by Mr Bowler.
Mr Walsh did not deny making the comments “I’m not happy Jan”, or this is unfair” but maintained that he was reacting to the announcement that had just been made.[51] Similarly, Mr Walsh concedes that he had referred to Ms Pohlner as a “Liar”. On balance I find that Mr Walsh participated in a private conversation with Mr Bowler in which a range of comments along the lines of those alleged by Mr Kerkow were made.
I accept that Mr Walsh’s actions were unprofessional and that he erred in expressing his frustrations with the process in the manner in which he did, particularly in referring to Ms Pohlner as a liar. I find that Mr Walsh’s actions were 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. In all of the circumstances, and noting that these comments were made in the heat of the moment, I have not been convinced that Mr Walsh’s conduct was offensive, intimidating or discriminatory, nor that it could reasonably be considered to be bullying or sexual harassment. I do not find Mr Walsh’s conduct in relation to Incident 2 was in breach of the Policy, nor was it a valid reason for his dismissal.
Incident 3 – Discussion with Ms Hadfield
Shortly after the interaction in the hallway, Mr Walsh was a party to a further conversation between Ms Hadfield, Mr Bowler and himself. It is in this conversation that Mr Walsh is alleged to have made the following comments in the presence of Ms McNee:
I hate Habib, he's a greasy [derogatory term].
I'm not helping her, I'm not training her.
It's a fucking joke, it's fucking bullshit, have you heard about the L4?
Ms McNee was not interviewed as a part of the investigation. Mr Walsh’s record of interview indicates he did not recall having ever referred to Mr Rahman in those terms. He did however concede that he may have previously said that “he hated Habib” but if he did, it would have been out of frustration and as a result of working long hours.
Unitywater highlight that contrary to this, as a part of the show cause process, Mr Walsh had stated:[52]
“I do not recall saying this or anything similar. I believe it is not something I would say.
Although, I have been extremely under the pump with work, and I cannot be certain that I did not say something about Mr Rahman. I just can't see myself saying something like this.”
.
There is a significant inconsistency in the evidence of Ms Nicholson and Ms Hadfield with respect to what was said. It was Ms Nicholson’s evidence that when Ms Hadfield recounted the conversation to her, she said that Mr Walsh had said “Habib is a greasy black (something). However, this was not Ms Hadfield’s evidence. Ms Hadfield, who was the one participating in the conversation with Mr Walsh, recalled Mr Walsh saying “Habib is a greasy” but that he and then stopped, when Ms Hadfield motioned that he should.[53]
I prefer Ms Hadfield’s evidence, particularly noting Mr Walsh’s acceptance that he could not be certain he did not say something about Mr Rahman. I find it most likely that Mr Walsh did refer to Mr Rahman as “greasy” and that Ms Hadfield did raise her hand to indicate to Mr Walsh he should stop. The evidence does not however, support a finding that Mr Walsh uttered any further comments.
It is of note that having discussed this interaction with Ms Hadfield, Ms Nicholson did approach Mr Walsh to discuss the interaction but having done so, took no further steps. It is Mr Walsh’s uncontested evidence that Ms Nicholson did not, during this conversation raise the alleged “greasy” comment.[54] I have also had regard to the fact that Ms Nicholson herself indicated in her discussion with Mr Rahman that afternoon “that she hoped they would simmer down” – which, viewed objectively, supports a conclusion that Ms Nicholson viewed Mr Walsh’s conduct as nothing more than a heat of the moment reaction. Whilst Ms Hadfield may have been concerned that Mr Walsh was about to make an inappropriate racial slur, it is evident that he did not. With respect to the second two comment’s above, Mr Walsh accepted, and I find, that he did make comments along those lines.
I accept Mr Walsh’s actions were unprofessional and that he erred in expressing his frustrations with the process in the manner in which he did. I find that Mr Walsh’s actions were in breach of the Code, particularly the requirements to demonstrate a high level of workplace behaviour and personal conduct, and to demonstrate respect for other employees.
I have not been convinced that Mr Walsh’s conduct was offensive, intimidating or discriminatory, nor that it could reasonably be considered to be bullying or sexual harassment. I do not find Mr Walsh’s conduct in relation to Incident 3 was in breach of the Policy, nor was it a valid reason for his dismissal.
Incident 4 - Comments on the back deck
Due to the format of the allegation, it is not clear which of the sub-allegations put to Mr Walsh are alleged to have been said on the back deck. Having reviewed the evidence of Mr Kerkow and Mr Somodio, it seems the relevant comments are:
“If you’re the apprentice and you have a tradesman, you can’t give the apprentice the job”, which Mr Kerkow says he overheard Mr Walsh saying to Mr Bowler; and
“How can you appoint her as a senior officer when you’re still on probation?” “I’m not taking her out onto a new field to a new site, I’m not going to train her”, which was allegedly said to Mr Somodio.
Mr Walsh does not dispute that he said words to this effect. I find it most likely that Mr Walsh did make comments along the lines of those above. However, to be clear, even if the words as recalled by Mr Kerkow and Mr Somodio were the exact phrases uttered, when viewed in context, I would not have been persuaded that they could reasonably be considered to be offensive or intimidating.
I accept Mr Walsh’s actions were unprofessional and that he erred in expressing his frustrations with the process in the manner in which he did. I find that Mr Walsh’s actions were 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 not been convinced that Mr Walsh’s conduct was offensive, intimidating or discriminatory, nor that it could reasonably be considered to be bullying or sexual harassment. I do not find Mr Walsh’s conduct in relation to Incident 4 was in breach of the Policy, nor was it a valid reason for his dismissal.
Incident 5 – Conduct in the carpark
This incident concerns an interaction said to have occurred between Mr Walsh and Ms Pohlner in the carpark the following morning. Ms Pohlner insists that as she walked past Mr Walsh, he ignored her greeting and “glared at her”. Mr Walsh denies this allegation and contends that he was not in the carpark at the same time as Ms Pohlner.
Mr Bowler, who Ms Pohlner contends was with Mr Walsh at the time, was not interviewed about this interaction during the investigation, however his evidence in this matter aligns with Mr Walsh’s. Mr Bowler maintains that he did not see Mr Walsh in the carpark that morning and that when he and Ms Pohlner arrived, his vehicle was the only one in the carpark. Mr Bowler recalls that Ms Pohlner walked into the building first, and he followed. It was not until sometime later he says, that Mr Walsh entered the building.
In Mr Walsh’s 20 December 2024 response, he states:
“I do refute the allegation in the carpark and checking the data (GPS) on the vehicles would indicate I arrived after all parties would have gone inside and as such, I would not have been able to ignore Ms Pohlner as I was not in the vicinity of the car park when she was at the said time and date.”
Unitywater do concede that they should have provided this information to Mr Bowler, but did not. It is of further concern that during cross examination, Ms Kelly confirmed that she had in fact checked the GPS information herself and maintained that it showed both vehicles were in the carpark at the relevant time however, when further pressed on the information, and why it was not included in either the investigation or her evidence, Ms Kelly replied:
“Don’t know?----yeah. Error. “administrative error perhaps”[55]
Without the benefit of the data there is insufficient evidence to make any findings regarding what it did or did not show, however the fact that Ms Kelly reviewed it, yet failed to make any mention of it in either the investigation or her evidence, speaks to her credibility in this matter and to the overall credibility of the investigation.
Further, when asked if she had checked the proximity cards to see who entered the building at what time Ms Kelly replied:
…..No, because the quality of the data is unreliable. If I swiped in, five people could walk in with me”[56]
Ms Kelly was unconvincing in her attempt to justify why she had not checked the proximity data to ascertain when Mr Walsh, Mr Bowler and Ms Pohlner may have entered the building that morning. Following a lengthy exchange regarding the usefulness or otherwise of the GPS and proximity data, Mr Taylor put to Ms Kelly:
“Right, so there is some evidence you could have looked - additional - looked up and worked out that Mr Walsh wasn't in the carpark. Is that right?---Yes.”[57]
The evidence does not support a finding that this incident occurred as described by Ms Pohlner. Importantly, even if I had been convinced that the conduct as alleged had occurred, I would not have found it to have been a valid reason for Mr Walsh’s dismissal.
Incident 6 – Comments in the Lab
The evidence of Ms O’Meley and Mr Walsh does not differ significantly with respect to this matter. I also note that Mr Ewin, who was also present during this discussion was not interviewed regarding his participation or what he observed. Mr Walsh does not dispute that he said words to this effect, and remained steadfast in his view that his comments reflected his view that Ms Pohlner had lied when she had told him that she had not applied for the position. It is of note that Ms O’Meley did not describe Mr Walsh’s demeaner as being aggressive or intimidating.
Having considered the circumstances of this matter, I find Mr Walsh made comments along the lines of those alleged, but that in doing so, Mr Walsh was simply explaining to a co-worker, what had happened the week before and why he had been upset. In the circumstances, I do not consider it unusual, unexpected or inappropriate for two co-workers to have had such a discussion.
I accept however that Mr Walsh’s reaction to Ms O’Meley congratulating Ms Pohlner was unprofessional and inappropriate. I find that Mr Walsh’s actions were 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 not been convinced that Mr Walsh’s conduct was offensive, intimidating or discriminatory, nor that it could reasonably be considered to be bullying or sexual harassment. I do not find Mr Walsh’s conduct in relation to Incident 6 was in breach of the Policy, nor was it a valid reason for his dismissal.
Breach of Policy and WH&S Obligations
Whilst I have found Mr Walsh’s conduct to have variously breached the Code, I do not find these breaches, either individually or collectively, to be valid reasons for his dismissal.
The Policy states that a single incident of unreasonable behaviour does not constitute workplace bullying.[58] Whilst there were multiple allegations, in the most part they occurred over a short period of time and were in response to the same event and circumstances. Further to my comments above regarding the Code, I have also found that much of Mr Walsh’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 Walsh’s conduct, either separately or together, rose to the level of workplace bullying.
Similarly, I have not been convinced that any of Mr Walsh’s conduct was discriminatory or constituted sexual harassment. The evidence does not support a finding that Mr Walsh’s conduct was in breach of the Policy, nor that Mr Walsh presented a serious and imminent risk to Ms Pohlner or Mr Rahmen’s psychological health and safety or the health and safety of other employees.
Findings on valid reason
I have not found that any of the incidents relied upon by Unitywater to dismiss Mr Walsh, either individually or collectively, represent a valid reason for his dismissal. I have not been convinced it was open to Unitywater to conclude that Mr Walsh 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 Walsh’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
Mr Walsh 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).[59] 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)[60] and the same approach applies[61]
Section 387(d) - any unreasonable refusal to allow a support person to assist in discussions relating to the dismissal
Mr Walsh 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 Walsh’s dismissal did not relate to unsatisfactory performance. 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
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
Mr Walsh submits that his age, significant length of service, workplace wrist injury and his job prospects arising from these circumstances should weigh heavily in favour of the Commission finding that the dismissal was harsh and therefore unfair.
Respondent Submissions
Whilst Unitywater accept that Mr Walsh has 27 years of service, they do note that it cannot be said that his career is unblemished.[62]
Unitywater accept that Mr Walsh’s age and injuries will likely make it more difficult for him to find re-employment but argue this must be weighed against the seriousness of his conduct, including the risk that his continuing employment would have posed to the health and safety of other employees.
Further, Unitywater contend that their payment in lieu of notice, and the payment of his accrued time off in-lieu in circumstances in which they say, they were not required to do so, adds weight to a conclusion that his dismissal was not harsh.[63]
Conclusion on Merits
Whilst some of the conduct as alleged did occur, I have not been convinced that it justified Mr Walsh’s dismissal.
Having found that Unitywater did not have a valid reason to dismiss Mr Walsh, 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.
Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of Mr Walsh was harsh, unjust and unreasonable. I am therefore satisfied that Mr Walsh was unfairly dismissed within the meaning of section 385 of the Act.
To be clear, even if I had found Mr Walsh’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 a proportionate response in the circumstances, particularly noting my observations on the investigation as well as Mr Walsh’s age, significant length of service, workplace injury and his job prospects.
Remedy
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. 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?
Mr Walsh seeks reinstatement to his previous position and the recovery of lost wages. Unitywater opposed reinstatement on the grounds that Mr Walsh’s conduct has resulted in them losing trust and confidence in him and his ability to comply with their policies and procedures and applicable laws, and the impact that Mr Walsh’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.
Mr Walsh says that even though he has an existing wrist injury, he is fit and ready to continue in his previous role and is prepared to do whatever it takes to restore his working relationship with his colleagues. I am satisfied that the employment relationship can be restored.
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 Walsh to his previous position. I am satisfied that I should make an order reappointing Mr Walsh 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.
I also propose to make an order to maintain the continuity of employment and his period of continuous service pursuant to s.391(2).
Reinstatement - is it appropriate to make an order to restore lost pay?
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.
Subsection 391(4) of the Fair Work 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.
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.
Mr Walsh 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 Walsh’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.
I accept Mr Walsh’s evidence that he has applied for other jobs but has been unsuccessful in obtaining employment. Mr Walsh believes that his age and his wrist injury have significantly impacted his employability. In the circumstances, I consider Mr Walsh has made attempts to mitigate his loss.
At the time of the hearing, Mr Walsh had not been successful in obtaining employment however, it is possible that Mr Walsh may have received earning that I am not aware of since this time. I intend to make an order that Unitywater pay Mr Walsh an amount equal to the remuneration he would have earnt had he not been dismissed, less:
any amount Mr Walsh has earned or received since his dismissal from other employment, and
the amount he was paid in lieu of notice.
Superannuation will be payable on this amount.
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
For the reasons outlined above, I have determined that Mr Walsh was unfairly dismissed. I will separately issue orders for Mr Walsh’s reinstatement, continuity of employment and compensation for lost pay.
COMMISSIONER
Appearances:
G. Taylor for the Applicant
C. O'Connor for the Respondent
Hearing details:
2025
Brisbane
2 to 5 June
[1] Fair Work Act 2009 (Cth) (the Act) s.382.
[2] P.123 of the DHB – Witness Statement of Leslie Walsh.
[3] P.109 of the DHB – Annexure LW7 of Leslie Walsh Witness Statement.
[4] P.919 of the DHB – Witness Statement of Donna Nicholson.
[5] P.639 of the DHB – Annexure AJK-40 of Amy Kelly Witness Statement.
[6] P. 14, Transcript of Hearing (4 June 2025).
[7] P. 117, Transcript of Hearing (2 June 2025).
[8] P. 74, Transcript of Hearing (2 June 2025).
[9] P. 76, Transcript of Hearing (2 June 2025).
[10] P.146-147 of the DHB – Reply Witness Statement of Leslie Walsh.
[11] P.905 of the DHB – Witness Statement of Dawn Hadfield.
[12] P.148 of the DHB – Reply Witness Statement of Leslie Walsh.
[13] Ibid.
[14] P.905 of the DHB – Witness Statement of Dawn Hadfield.
[15] P.148 of the DHB – Reply Witness Statement of Leslie Walsh.
[16] P.910 of the DHB – Annexure DLH-1 of Dawn Hadfield Witness Statement.
[17] P.920 of the DHB – Witness Statement of Donna Nicholson.
[18] Ibid.
[19] Ibid.
[20] Ibid.
[21] P.149 of the DHB – Reply Witness Statement of Leslie Walsh.
[22] P.986 of the DHB – Witness Statement of Russell Kerkow.
[23] Ibid.
[24] P.943 of the DHB – Witness Statement of Jerome Somodio.
[25] P.147 of the DHB – Reply Witness Statement of Leslie Walsh.
[26] Ibid at P.149 of the DHB.
[27] P.969 of the DHB – Witness Statement of Mikaela Pohlner.
[28] P.150 of the DHB – Reply Witness Statement of Leslie Walsh.
[29] P.127 of the DHB – Witness Statement of Ken Bowler.
[30] P.151 of the DHB – Reply Witness Statement of Leslie Walsh.
[31] P.970 of the DHB – Witness Statement of Mikaela Pohlner.
[32] P.547 of the DHB – Annexure AJK-34 of Amy Kelly Witness Statement.
[33] Ibid at P.548 of the DHB.
[34] P.611-612 of the DHB – Annexure AJK-38 of Amy Kelly Witness Statement.
[35] P.103 of the DHB – Annexure LW6 of Leslie Walsh Witness Statement.
[36] Ibid at P.109 of the DHB.
[37] Ibid at P.113 of the.
[38] Ibid.
[39] P.733 of the DHB – Annexure AJK-50 of Amy Kelly Witness Statement.
[40] Ibid at P.734 of the DHB.
[41] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[42] Ibid.
[43] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[44] Edwards v Justice Giudice [1999] FCA 1836, [7].
[45] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[46] [2020] FWC 2989.
[47] P. 265 of the DHB – Respondent’s Submissions.
[48] P.373 of the DHB – Annexure AJK-15 of Amy Kelly Witness Statement.
[49] P.339 of the DHB – Annexure AJK-8 of Amy Kelly Witness Statement.
[50] P.96 of the DHB – Annexure LW4 of Leslie Walsh.
[51] P.441 of the DHB – Annexure AJK-24 of Amy Kelly Witness Statement.
[52] P.92 of the DHB – Annexure LW3 of Leslie Walsh.
[53] P.905 of the DHB – Witness Statement of Dawn Hadfield.
[54] P.149 of the DHB – Reply Witness Statement of Leslie Walsh.
[55] P. 8, Transcript of Hearing (4 June 2025).
[56] P. 9, Transcript of Hearing (4 June 2025).
[57] P. 10, Transcript of Hearing (4 June 2025).
[58] P.509 of the DHB - Annexure AJK-31 of Witness Statement of Amy Kelly.
[59] 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].
[60] Read v Gordon Square Child Care Centre[2013] FWCFB 762, [46]-[49].
[61] Jenkins v Qube Ports Pty Ltd (Port Kembla) [2025] FWC 2447.
[62] P.269-270 of the DHB – Respondent’s Submissions.
[63] P.270 of the DHB – Respondent’s Submissions.
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