Mr Peter Angelakos v Coles Supermarkets Aust Pty Ltd T/A Coles Supermarkets
[2019] FWC 29
•4 FEBRUARY 2019
| [2019] FWC 29 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Peter Angelakos
v
Coles Supermarkets Aust Pty Ltd T/A Coles Supermarkets
(U2018/3306)
COMMISSIONER HUNT | BRISBANE, 4 FEBRUARY 2019 |
Application for an unfair dismissal remedy - alleged breaches of workplace policy - workplace bullying and sexual harassment – allegations substantiated following investigation – reasons for dismissal valid despite shortcomings in investigative process – dismissal not harsh, unjust or unreasonable – application dismissed.
Introduction
[1] Mr Peter Angelakos has made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by Coles Supermarkets Aust. Pty Ltd T/A Coles Supermarkets (Coles).
[2] Mr Angelakos commenced employment with Coles on 1 August 2009 at the Hurstville Station Supermarket in Sydney. Mr Angelakos remained at the Hurstville Station Supermarket until he resigned on 15 May 2016. He relocated with his family to Mackay and recommenced work with Coles on 8 August 2016 as a Team Member at the Coles Mackay store. He was promoted to Duty Manager at the Coles Supermarket in Moranbah (Coles Moranbah; the store) on 8 May 2017. Mr Angelakos held that position until he was dismissed on 9 March 2018.
[3] A telephone directions conference occurred on 29 May 2018 for the purpose of programming and scheduling the matter for hearing. During the conference, Mr Angelakos applied to appear at the hearing by video link on the basis that he had relocated to Sydney since filing his application. On 12 June 2018 I issued a decision pursuant to s.589(1) of the Act granting Mr Angelakos permission to appear by video link; my reason for granting the application is outlined in the decision. 1 Coles was subsequently granted permission to appear by video link.
[4] It is not contested that Mr Angelakos is a person protected from unfair dismissal pursuant to s.382 of the Act.
Determinative Conference
[5] The matter was listed for hearing before me on 17, 18, 19 and 20 September 2018 in Brisbane. Mr Angelakos appeared via video link from Sydney. Coles appeared via video link from Moranbah. Coles’ witnesses gave evidence by video-link from Moranbah and in person from Brisbane. Mr Angelakos did not call any witnesses to give evidence on his behalf.
[6] Given the logistical complexity of the matter and lack of an objection from Mr Angelakos, Coles was granted leave pursuant to s.596(2)(a) of the Act to be legally represented at the hearing by Mr Will Spargo, instructed by Ms Alannah Slater, both from Lander & Rogers Lawyers.
[7] At the commencement of the hearing I proposed to the parties for the matter to proceed by way of determinative conference, rather than a hearing, due to the complexity of the matter, the large number of witnesses and noting that Mr Angelakos was self-represented. That proposal was not opposed and I decided that the matter should proceed as a determinative conference. In this decision the determinative conference of this matter is referred to as “the conference”.
[8] On 4 February 2019, I issued an Order [PR704453] pursuant to s.594 of the Act to anonymise the names of five of the witnesses relied on by Coles and a further person involved in the circumstances concerned in this matter. The reason for that order was to protect the identity of the witnesses as some were, at the time of giving evidence in this matter aged less than 18 years, and the other persons wished to remain anonymous for personal reasons, including Moranbah being a relatively small town in regional Queensland. No objection was made to the making of the order and I considered it appropriate to do so.
[9] Mr Angelakos gave evidence as a witness in his own case. The following witnesses gave evidence for Coles, or if they were not required for cross-examination, their witness statement was admitted into evidence:
• AB, former Team Member, Coles Moranbah;
• Mr Patrick Morton, Store Manager, Coles Moranbah;
• Ms Mo Mwango Mulenga, Senior Consultant, Advisory Services, Coles
• CD; former Team Member, Coles Moranbah;
• Ms Linda Daniels, Duty Manager, Coles Moranbah;
• Ms Linda Powyre, Team Member, Coles Moranbah;
• EF, Team Member, Coles Moranbah;
• IJ, Team Member, Coles Moranbah;
• GH, Team Member, Coles Moranbah;
• Ms Josephine Bainbridge, Assistant Store Manager, Target Moranbah;
• Ms Leanne van Eykelenborg, Team Member, Coles Moranbah;
• Mr Anthony Wood, Dairy in Charge, Coles Moranbah;
• Ms Trudy Maher, Team Member and Supervisor, Coles Moranbah;
• Ms Yueh Ching (Fiona) Lin, Supervisor, Coles Moranbah;
• Ms Desley Channells, Bakery Manager, Coles Moranbah;
• Ms Alina Bidewell, Regional People & Culture Manager, Coles;
• Ms Alannah Slater, Lawyer, Lander & Rodgers.
Reasons for dismissal
[10] Mr Angelakos was dismissed following an investigation prompted by two separate complaints made close in time by young female employees of the Moranbah store, alleging that Mr Angelakos had acted inappropriately towards them. The employees were aged 17 and 23. Mr Angelakos is 52 years of age. In the course of the investigation by Coles, two more female employees of school age made allegations that Mr Angelakos had behaved inappropriately towards them. Further employees subsequently made complaints such that there were eight complainants.
[11] Allegations surfaced in very late January 2018 and made their way to Coles’ Advisory Services department on 1 February 2018. Ms Mo Mulenga is a Senior Consultant providing employee relations advice, support to managers during disciplinary matters, undertaking workplace investigations and representing Coles at conciliation conferences. Ms Mulenga reviewed the complaints and formed the view that if the allegations were substantiated, they may amount to workplace bullying, victimisation and/or sexual harassment in breach of Coles’ Code of Conduct and the Equal Opportunity Policy.
[12] Mr Angelakos was immediately stood down with pay from 1 February 2018.
[13] On 6 February 2018 Mr Patrick Morton, Store Manager of the Moranbah store provided to Ms Mulenga contact details of all employees who had submitted written complaints. Mr Morton had only recently commenced in the role that week.
[14] On 7 February 2018 Ms Mulenga telephoned Mr Angelakos and introduced herself, informed him of the investigation process, inquired as to his wellbeing, and encouraged him to utilise Coles’ Employee Assistance Program.
[15] By the time Ms Mulenga had spoken with all complainants, there were 39 formal allegations to be put to Mr Angelakos.
[16] Ms Mulenga organised to meet with Mr Angelakos on 23 February 2018 in the Target Country Moranbah store, next door to the Coles store. It is Ms Mulenga’s evidence that Mr Angelakos declined to respond to the allegations put to him, and requested that he be allowed to put his responses in writing at a later date. He stated that he wished to obtain legal advice, and Ms Mulenga permitted a period of time to allow Mr Angelakos to obtain legal advice.
[17] On 1 March 2018 Mr Angelakos emailed his written responses to allegations 1-11. On 2 March 2018 he emailed his written responses to the remaining allegations. Ms Mulenga organised a telephone meeting with him within the hour to go through his responses. Mr Angelakos was becoming flustered, so Ms Mulenga agreed to call him later in the day, which she did.
[18] On 7 March 2018 Ms Mulenga completed her report into her investigation, making relevant findings. She found that the bulk of the allegations were made out, including sexual harassment against a female team member under the age of 18. Mr Angelakos’ conduct towards the complainants was found to be in breach of the Code of Conduct and the Equal Opportunity Policy.
[19] The findings were communicated to Mr Angelakos on 8 March 2018, and an ‘outcome meeting’ was held on 9 March 2018. The evidence in relation to those two conversations is detailed later in the decision.
Mr Angelakos’ evidence
[20] Although directions were set for the filing of each party’s material prior to the conference, Mr Angelakos did not provide a conventional written statement or outline of his submissions. Mr Angelakos’ submissions prior to the conference consisted only of a document authored between him and Ms Mulenga which set out the allegations against Mr Angelakos that were investigated by Ms Mulenga, and Mr Angelakos’ written responses to those allegations. That document is discussed in detail below.
[21] The remaining evidence is drawn from his original application to the Commission in this matter, evidence given at the conference and matters which were uncontested between the parties.
Work at Coles Moranbah
[22] Upon taking up the Duty Manager role in the Moranbah store on 8 May 2017, Mr Angelakos lived with his wife and two primary-school age children in a rental property owned by Coles.
[23] No performance issues were raised to him during his eight years’ total service with Coles. Mr Angelakos stated that he successfully completed an ‘Emerging Leaders’ program during his time at Coles Moranbah. 2
[24] Mr Andrew Holloway was the Manager of Coles Moranbah at the time that Mr Angelakos started as Duty Manager. Mr Holloway held the Manager position until 22 January 2018. Mr Patrick Morton was appointed to the Manager position at Coles Moranbah on 29 January 2018.
[25] Mr Angelakos stated that during the time Mr Holloway was Store Manager, he raised with Mr Angelakos only one issue; a complaint by a staff member, Mr Jacob Miels in late 2017. He was informed that it would be referred to an Area Service Manager, but he did not hear anything further and assumed the matter had been resolved. Mr Miels’ complaints were later put to Mr Angelakos as part of Ms Mulenga’s investigation.
[26] Otherwise, Mr Angelakos’ evidence was that he continued to work at Coles Moranbah without significant incident until 1 February 2018.
Suspension and commencement of investigation
[27] On 1 February 2018 Mr Angelakos was at work when he was met by Mr Alastair Hardy, Dry Goods Manager. Mr Hardy told him that he had received a call from Mr Morton, and he was required to go to the store office for a meeting.
[28] Mr Morton attended the meeting by telephone and informed Mr Angelakos that several allegations had been made against him. The allegations included that he had breached Coles’ company policies, including in relation to alleged sexual harassment, unwanted comments and inappropriate behaviour. Mr Angelakos was put on paid suspension while Coles investigated the complaints. Mr Angelakos was told not to attend for work until he was otherwise informed, and he was directed to take his personal belongings home and to leave the premises quietly, which he did. 3
[29] The policies that Mr Angelakos was alleged to have breached are the Coles Code of Conduct (the Code) and the Equal Opportunity and Appropriate Workplace Behaviour Policy (EO Policy).
[30] The Code sets out responsibilities for all Coles employees and additional responsibilities for employees in a leadership role. The expectations of team members set out in the Code are: 4
• Treat everyone with whom you interact with dignity, courtesy and respect;
• Perform your role to the best of your abilities and always in accordance with Coles values;
• Make truthful statements, promises or commitments that you and Coles are able to meet;
• Learn about and follow all Coles policies and procedures and all relevant laws that apply to your role and follow any changes to these policies, procedures and laws;
• Advise your manager of any situations where you think there could be a breach of these expectations, and encourage others to do the same;
• Protect the reputation of Coles and not make any disparaging or untruthful remarks about Coles, other team members, customers, competitors, contractors or suppliers;
• Behave in a way that ensures your safety and the safety of others; and
• Deal fairly and honestly with customers, suppliers and any other external parties.
[31] The expectations of employees in leadership roles set out in the Code are:
• Lead by example and challenge others to do the same;
• Help team members understand what is expected of them in their roles;
• Build team members’ knowledge of the Coles values, company policies and procedures and all relevant laws that affect their role, including changes to these policies, procedures and laws;
• Give feedback and coaching to team members to help them perform to the best of their abilities;
• Promptly manage behaviour that is inconsistent with these requirements;
• Listen openly to ideas and suggestions; and
• Provide an environment where team members can raise their concerns and discuss them openly without fearing or experiencing negative consequences.
[32] The EO Policy applies to all Coles employees, contractors and consultants, and imposes a responsibility on them not to discriminate, vilify, bully, harass, sexually harass or victimise other Coles employees, customers or any external party. Relevantly, the EO Policy set out definitions for sexual harassment, victimisation and workplace bullying, as follows: 5
“Sexual Harassment is a specific and serious form of harassment. It is unwelcome sexual behaviour, which could be expected to make a person feel offended, humiliated or intimidated. Sexual harassment can be physical, spoken or written. It can include:
• Unwelcome sexual advances or requests for sexual favours
• Unwelcome comments, teasing or innuendo about a person’s sex life or physical appearance
• Smutty jokes and comments
• Suggestive behaviour such as staring or leering at a person, or parts of their body
• Displays or sexually graphic material including posters, images on walls or computer desktops/screensavers
The intent of the team members, contractor or consultant engaging in the above behaviours is irrelevant – it is a question of whether a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
Just because someone does not object to inappropriate behaviour in the workplace at the time, it does not mean they are consenting to the behaviour.
A single incident is enough to constitute sexual harassment – it doesn’t have to be repeated.
Behaviour that is based on mutual attraction, friendship and respect is not likely to be sexual harassment as long as the interaction is consensual, welcomed and/or reciprocated. Please note, sexual contact or behaviour of a sexual nature between members of our team which is likely to offend others in a work context is not acceptable.
Sexual Harassment is not tolerated at Coles. It is prohibited under state, territory and Federal legislation, and Coles can be held responsible for sexual harassment committed by its team members, contractors or consultants. Some forms of sexual harassment can also be considered a criminal offence.”
…
“Victimisation is subjecting or threatening to subject someone to a detriment because they have asserted their rights under equal opportunity law, made a complaint, helped someone else make a complaint, or refused to do something because it would be discrimination, sexual harassment or victimisation.
It is also victimisation to threaten someone (such as a witness) who may be involved in investigating an equal opportunity concern or complaint.
Victimisation is not tolerated at Coles. It is also prohibited under state, territory and federal laws. Coles can be held responsible for victimisation committed by its team members, contractors or consultants.”
…
“Workplace Bullying is defined as repeated, unreasonable behaviour towards a person or a group of people that creates a risk to their health and safety. The risk can be physical, psychological or both.
Workplace bullying may be intentional or unintentional.
The following types of behaviour may amount to workplace bullying if repeated or occurring as part of a pattern of behaviour.
(a) verbal abuse, including sarcasm or insults
(b) humiliation
(c) unreasonable or unjustified criticism
(d) exclusion or isolation
(e) intimidation
(f) spreading rumours or innuendo about a person
(g) deliberately and unreasonably withholding vital information
Workplace bullying is not tolerated at Coles. It is also prohibited under state, territory and Federal legislation, and Coles can be held responsible for bullying committed by its team members, contractors or consultants. Bullying behaviour can also constitute a criminal offence in some jurisdictions.
While workplace bullying involves repeated behaviour, isolated or one-off examples of the type of behaviour referred to above also represent risks to the health and safety of our team, and will not be tolerated.
What is not Workplace Bullying?
Managers are required to provide our team with reasonable and constructive feedback, and to set clear and reasonable performance standards. This is not workplace bullying when it is done in a reasonable way.
For example, reasonable management action, including performance management or management action based on a genuine and reasonable business requirement is not workplace bullying.”
[33] Mr Angelakos agreed that on 7 February 2018 and following a phone call from Ms Mulenga, she sent an email to him briefly describing the investigative process to be followed, which read as follows: 6
“Dear Peter
Thank you for speaking with me today.
As we discussed, I have been appointed to investigate the complaints made against you. The investigation will involve a period of information gathering, then you will be provided details of the allegations and an opportunity to respond.
Due to the seriousness of the allegations, you will remain on a period of paid suspension while this matter is investigated. Your absence from the workplace has been communicated as ‘leave’ as this matter is strictly confidential. I will be in regular contact with you to provide updates regarding the progress of this investigation.
I understand from our conversation today that this is a challenging time for you, and I encourage you to contact the Employee Assistance Program for confidential counselling support. To speak directly to one of the team at Converge and schedule an appointment, please call [phone number].
If you have any further queries, please contact me via email or on the number below.
Kind regards,
Mo”
Interview with Ms Mulenga and written response of Mr Angelakos
[34] Mr Angelakos confirmed that he received a further phone call and email from Ms Mulenga on 19 February 2018 discussing the arrangements for his interview with her. The email received by Mr Angelakos on 19 February 2018 stated: 7
“Good morning Peter
As we discussed, an investigation interview has been scheduled for 8:30am on Wednesday 21 February at Target Country, Moranbah Fair Shopping Centre.
As you are aware, we will be discussing formal complaints against you in relation to alleged breaches of the following Coles policies (attached):
• The Code
• Equal Opportunity Policy
At the interview, I will provide you with specific information about the allegations against you, and offer you an opportunity to respond – either verbally during the meeting, or in writing after the meeting.
You are welcome to have a support person present with you during the interview.
Please feel free to take notes during our discussion, however Coles does not consent to any other form of recording of the interview. After the interview, I will email you a summary of our discussion to review before the investigation proceeds.
I have attached a copy of the Coles interview protocols for your reference. I ask that you, and your support person if you choose to have one, keep all matters relating to this investigation confidential in line with these protocols and your obligation under The Code.
If you have any questions, please contact me via email or on the number below
Regards
Mo”
[35] The meeting was eventually changed to occur on 23 February 2018. Mr Angelakos’ evidence at the conference was that he had been uncomfortable meeting with Ms Mulenga at the Target Country store as he knew several of the staff there. Mr Angelakos recalled that he had indicated his discomfort to Ms Mulenga prior to their interview, but had nevertheless agreed to participate in the interview on 23 February 2018. 8
[36] It was not contested that Mr Angelakos did not seek to bring a support person to the interview.
[37] During the interview Ms Mulenga put to him 39 allegations that had been made against him by eight complainants and sought his response. It is Mr Angelakos’ evidence that this was the first time that he was made aware of the allegations against him. He requested he be allowed to provide written responses rather than oral responses. On 23 February 2018 Ms Mulenga sent the following email to Mr Angelakos: 9
“Hi Peter
Thank you for meeting with me this morning. I have attached the allegations we discussed.
As you have requested to provide your responses in writing, could I please ask that you provide a response for each allegation. Also, if you have any general comments or additional information you want to provide, please feel free to include this in your response.
Additionally, if you can identify any potential witnesses, please identify who they are and why they may be a witness. As discussed, please do not make contact with any complainants or witnesses to discuss this matter.
If you could get this back to me as soon as possible, it will greatly enable me to continue the investigation. If necessary, I will contact you to arrange a time to discuss any aspects of your response that may need clarification.
Should you have any queries, please contact me via email or on the number below.
Regards
Mo”
[38] On 27 February 2018 he received a phone call and subsequent email from Ms Mulenga in which she asked him to confirm when he expected to provide his written responses to the allegations, requesting that Mr Angelakos provide his written responses as a matter of urgency. Ms Mulenga’s email stated as follows: 10
“Good morning Peter
Thank you for calling me back. Please find attached interview protocols that were discussed at our meeting on Friday.
In our discussion this morning, you advised me that you were seeking legal advice in relation to your response, and that you were expecting to receive that advice on Thursday 1 March 2018. You confirmed that you would provide your written responses on 1 March 2018.
I acknowledge your request to seek legal advice before providing a response, however I wish to advise that, due to the already extended timeframe, I will not be able to further extend your opportunity to respond beyond 1 March 2018. If I do not receive your response by 1 March 2018, I will have to progress with the investigation and make findings based on the information available.
Peter you mentioned that you have had a difficult time since we met to discuss the allegations. I strongly encourage you to contact our employee assistance program, Converge International for counselling support.
Converge is an independent provider, and any discussions with a Converge counsellor are kept confidential and not disclosed to Coles. You can contact Converge on [phone number].
Should you have any other queries, please do not hesitate to contact me.
Regards
Mo”
[39] Mr Angelakos agreed that on 1 March 2018 he received a phone call and subsequent email from Ms Mulenga who sought to confirm with Mr Angelakos that he would provide his written responses to the allegations against him that day. Mr Angelakos agreed that he told Ms Mulenga that he was not in a position to provide his written responses that day, to which Ms Mulenga requested that Mr Angelakos provide Ms Mulenga with as much of his response as he could by close of business on 1 March 2018, and his remaining responses could be provided on 2 March 2018. 11
[40] At approximately 7:08pm on 1 March 2018, he sent to Ms Mulenga by email his written responses to the first 11 allegations. At approximately 2:40pm on 2 March 2018 he sent to Ms Mulenga by email his written responses to the remaining allegations against him.
[41] At approximately 3:30pm on 2 March 2018 Ms Mulenga called him and went through his written responses with him over the phone. He expressed to her that he had not had enough time to reflect on his responses to the allegations against him. Mr Angelakos stated that he would have needed at least another few days to have been given a fair amount of time to respond to each of the allegations put to him.
[42] In answering questions from me and Mr Spargo, Mr Angelakos acknowledged that he had not begun to compile his responses to the allegations until he received legal advice on 1 March 2018. Mr Angelakos did not accept that he could have begun to record his responses to each allegation prior to receiving legal advice. 12
Investigation, findings made by Ms Mulenga and evidence
[43] Given there are numerous allegations, most of which formed part of the reasons for the dismissal, I consider it appropriate to deal with each of them, together with the evidence of the parties under each sub-heading.
[44] As a result of Mr Angelakos failing to file a witness statement, his written response to the allegations put to Ms Mulenga formed the best part of his evidence, together with his oral evidence at the conference.
[45] There was, however, one allegation that arose in the witness material that was not investigated by Coles as part of the 39 allegations. The fresh allegation, not investigated, was that at approximately 9.00pm on 22 January 2018, at store closing time, the same day that Mr Holloway departed the store as Store Manager, Mr Angelakos used the store loudspeaker to sing to the team members, “My life is great, he is gone, out of my life, out of my life”. The allegation against Mr Angelakos was included in an email from Ms Bainbridge recording her discussions with team members about Mr Angelakos’ conduct. When it was put to him in cross-examination, he denied the allegation. The matter was discussed briefly as follows: 13
Commissioner: Right, so, let me read this out to you, Mr Angelakos.
“So, Peter got on the PA at 9 pm on Monday, 22 January, the first day without our store manager and sang to the team, 'My life is great, he is gone, he is out of my life, out of my life.' One team member walked straight up to him and told him that was inappropriate in front of a second team member. According to both team members, Peter got angry and was muttering to himself and rolling his eyes in response. The team members, initials TC, described his behaviour to me as he was being a bully and it was not acceptable. Team member VC describes his behaviour as ridiculous.
Did that happen, Mr Angelakos?
Angelakos: No.
Commissioner: Do I need to call these people and have them give evidence as well?
Spargo: No, Commissioner, we had - it's a big case and you have to draw a ring around it somewhere. We haven't included them because it's not part of the reasons for dismissal. I was raising it partly because you raised it at the outset and partly because it might be relevant to - - -
Commissioner: Yes, but it goes to Mr Angelakos' credibility here……….do I need to find out who was on roster that night and see whether there's at least one person who says that you did that, Mr Angelakos? It sounds like an incredibly immature thing to do. If you did it, you need to own up to it. You deny it outright it, do you?
Angelakos: Yes, I deny.
Commissioner: You don't sound very convincing there?
Angelakos: I don't know how you want me to sound, but I deny it.
Commissioner: Is this the first time you have read that or you have read it in your examination of - - -?
Angelakos: It's the first time. It's the first time.
Commissioner: Well, we will find out who was on shift that night because this is hearsay from Ms Bainbridge. But it certainly goes to your credibility there. If there's one person who says that you did that, then that will be very interesting, Mr Angelakos?
[46] Following further inquiries, at short notice, Coles called Ms Linda Powyre to give evidence in respect of this allegation against Mr Angelakos.
[47] Ms Powyre has worked in the dairy department at the Coles Moranbah store for 10 years. She remembered that Mr Holloway left as Store Manager during January 2018 and there had been a gap before Mr Morton started as Store Manager. Ms Powyre could not recall whether 22 January 2018 had been the first day of that ‘gap’.
[48] Ms Powyre stated that on the night of the first day after Mr Holloway’s departure, Mr Angelakos said into the store’s loudspeaker system words to the effect, “Andrew’s gone, good riddance”. Ms Powyre stated that the store had been closed at the time.
[49] When asked whether Mr Angelakos had said, “My life is great, he is gone, out of my life, out of my life”, Ms Powyre said that she had not taken notice of that and could only remember Mr Angelakos saying, “Andrew’s gone, good riddance”. Ms Powyre recalled that Mr Angelakos had simply said the words and had not sung them. Ms Powyre stated that it had been ‘quite stunning’ that Mr Angelakos would use the loudspeaker to say something like that, and she had thought there had not been any need for it.
[50] Mr Angelakos put to Ms Powyre that he had made an announcement that Mr Holloway had departed as Store Manager as a general announcement to team members in the store, who may have been unaware that Mr Holloway had left. Ms Powyre was adamant that Mr Angelakos had used the words, “Andrew’s gone, good riddance”. 14
Balance of probabilities
[51] Early on in the conference it became clear to me that Mr Angelakos did not understand how Coles had made conclusions on various matters on the balance of probabilities. I asked him if he understood what it meant, and he stated that he did not, even after having looked it up. 15 I did my best to explain to Mr Angelakos how a decision maker comes to a conclusion after hearing from all of the relevant parties, and how a decision maker makes such a decision on the balance of probabilities.
[52] On the first allegation, which will be detailed below, I explained that Ms Mulenga found that the complaint was substantiated on the balance of probabilities. Mr Angelakos responded, “That’s what I can’t understand because I may have been upset but I didn’t raise my voice or use an aggressive tone or aggressively gesture my arms.”
[53] It appeared to me that Mr Angelakos did not understand how a decision maker could make a finding against him when he denied the allegation. The following exchange later occurred: 16
Commissioner: So do you understand that Ms Mulenga, on each of these allegations, found some were substantiated, either where they're substantiated through witness statements she finds that outright they're substantiated and where they're - where she finds it's substantiated, on the balance of probabilities, it's because there's a bit of conjecture as to whether it may or may not have happened, but she finds that it did happen?
Angelakos: That's where I can't understand why that's so and how that conclusion was reached.
Allegations made by Josephine Bainbridge, including allegations 1 and 2
[54] Ms Josephine Bainbridge was the Store Support Manager of Coles Moranbah between November 2015 and August 2018, and made allegations number one and two against Mr Angelakos, together with further information relevant to allegations made by others. The below information includes her witness statement and her evidence during the conference.
[55] Ms Bainbridge stated that her role as Store Support Manager required her to ensure Coles Moranbah followed all occupational health and safety, workplace relations and financial disclosure requirements. Ms Bainbridge stated that she had on occasion discussed minor performance or conduct issues with staff members at Coles Moranbah, though more serious disciplinary matters were usually handled by the Store Manager. Ms Bainbridge stated that in addition to those responsibilities, her daily duties at Coles Moranbah involved her performing a variety of tasks including, but not limited to, serving customers at the registers.
[56] Ms Bainbridge often worked similar hours to Mr Angelakos and had a reasonable working relationship with him, though she often found he was a little difficult to manage.
[57] Ms Bainbridge stated that soon after Mr Angelakos commenced his position as Duty Manager she became concerned about a number of issues in relation to his performance and conduct in the workplace. Ms Bainbridge stated that her concerns were shared at the time by Mr Holloway and Mr Alastair Hardy. The examples of Mr Angelakos’ poor performance and conduct included:
• alleged incidents of him standing inappropriately close to female staff members, following female staff members and customers of Coles Moranbah around the store;
• demonstrating combative and belittling behaviour towards other staff members of Coles Moranbah who were under his supervision; and
• generally not adequately fulfilling his key responsibilities.
[58] She stated that during Mr Angelakos’ first 12 months at Coles Moranbah she attempted to work informally with him to resolve his conduct and performance issues, offering him training and guidance and speaking to him in one-on-one conversations. She had been asked by Mr Holloway to help Mr Angelakos in this respect, and understood that Mr Holloway had also had a number of informal, one-on-one conversations with Mr Angelakos about his performance and conduct. It was her view that Mr Angelakos’ behaviour towards other team members did not improve despite assistance.
[59] In cross-examination, Ms Bainbridge stated that she and Mr Holloway had received verbal complaints or had issues raised to them verbally about Mr Angelakos throughout his employment at Coles Moranbah. 17 Ms Bainbridge stated that the majority of those verbal issues were not serious enough to escalate to the HR Advisory Department. Instead, those verbal complaints prompted Ms Bainbridge to discuss Mr Angelakos’ performance with him.
[60] Ms Bainbridge stated that on a date she could not recall in or around August 2017 she had a conversation with Mr Angelakos about respecting employees’ personal space. She said to him words to the effect, “I don’t like people touching me or standing too close to me. You really have to read people’s non-verbals. We’re in a management position. You have to understand what’s appropriate and what’s not appropriate”. She said that his response was, “I already know I’m only allowed to touch them on the forearm”. She said that the response made her feel disturbed and set off alarm bells for her.
Allegation 1 - discussion regarding time off in lieu
[61] Ms Bainbridge stated that at around 10:00am on 26 December 2017 she was sitting in the Store Manager’s office when Mr Angelakos walked in, rested against the back of her chair, leaned in to her and said, “What day do I have off? When is my time in lieu?” Ms Bainbridge asked what was wrong, and he picked up the management roster, put it down heavily on the table next to Ms Bainbridge and said in an angry and threatening tone, “This is wrong, where is my time in lieu?” and “I want my day off, where is it? I want it this week”. Ms Bainbridge stated that Mr Angelakos was throwing his arms around while talking and walking in small circles.
[62] Ms Bainbridge told Mr Angelakos it was operationally impossible for him to have a day off that week and told him he would need to speak to Mr Holloway. Mr Angelakos responded, “I am going to ring HR about this, I will ring HR on you, I’m going to HR” and “I HAVE THE RIGHT to an extra day off. THIS week (Ms Bainbridge’s emphasis)”. Ms Bainbridge stated that she stood up and asked Mr Angelakos to sit down and discuss the issue, but Mr Angelakos threw his arms around while pacing and said in a loud and aggressive tone, “You can’t be serious, you can’t be serious” before leaving the office.
[63] Ms Bainbridge immediately contacted Mr Holloway and spoke to him about the incident, and Mr Holloway informed her that he would speak to Mr Angelakos. Ms Bainbridge then called Ms Bidewell, who gave her instructions about offering Mr Angelakos a day of time in lieu subject to the business’ needs.
[64] The above allegation was put by Ms Mulenga to Mr Angelakos. In his written response, he stated that he met with Ms Bainbridge and noticed the management roster on the table. Mr Angelakos stated that he politely enquired with Ms Bainbridge that, noting that he had been scheduled to work two public holidays on days that he would not ordinarily be required to work, was he entitled to time in lieu?
[65] Mr Angelakos stated that Ms Bainbridge said to him words to the effect that he was not entitled to time in lieu because he was not covered by the EBA and was on salary, and that it was up to Andrew if he wanted to give him time off. Mr Angelakos stated that Ms Bainbridge’s response had not ‘resonated’ with him and he had been frustrated and said to Ms Bainbridge that he would need to speak to HR about the issue.
[66] Mr Angelakos denied that he put the management roster heavily on the table, instead stating that that he had ‘dropped’ the management roster on the table. Mr Angelakos denied that he walked in circles, muttered, raised his voice, used an aggressive tone, had thrown his arms up or stormed out of the office while Ms Bainbridge was speaking. Mr Angelakos did recall that he said words to the effect, “I don’t believe this” in a surprised tone.
[67] Ms Mulenga determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Code, that being ‘What we expect from our team members/leaders’.
[68] In questioning from me, Mr Angelakos recalled that he may have been upset during the discussion with Ms Bainbridge but he had not raised his voice or used an aggressive tone or aggressively gestured his arms during the discussion on 26 December 2017. 18
Allegation 2 - discussion regarding marinara mix
[69] Ms Bainbridge stated that during a night shift in August 2017, a team member in the deli called her over and asked her if they had been preparing the marinara mix correctly. The team member explained to her that Mr Angelakos had told them they were preparing it incorrectly. Ms Bainbridge told the team member they were following the correct process and that she would talk to Mr Angelakos later.
[70] Ms Bainbridge stated that later in her shift at approximately 7:00pm, Mr Angelakos approached her and said to her in an aggressive manner, “What’s with the marinara?” She responded, “Sorry what do you mean?” Ms Bainbridge stated that Mr Angelakos started muttering to himself and walking around in circles. Ms Bainbridge attempted to explain to Mr Angelakos that the team members in the deli were following the correct procedure to prepare the marinara mix. Ms Bainbridge stated that Mr Angelakos responded by throwing his hands in the air and saying in a loud voice while standing very close to her, “You can’t be serious, are you saying it's ok for them to talk to me like that?”, “They can’t talk to me like that” and “It’s not up to them, they have to do what I say”.
[71] Ms Bainbridge attempted to calm Mr Angelakos down and suggested they both go and look at the marinara mix preparation information on Coles’ internal website together. Mr Angelakos ignored her suggestion and said to her in a loud and aggressive voice, “Am I wearing a white shirt for no reason? Is this not a white shirt?” before throwing his arms in the air and storming off. Ms Bainbridge understood Mr Angelakos’ reference to wearing a ‘white shirt’ to refer to himself as a Manager, as only the managerial staff at Coles Moranbah wear white shirts.
[72] In cross-examination, Ms Bainbridge stated that she had raised the marinara incident with Mr Holloway. Mr Holloway advised her, and Ms Bainbridge agreed that the best course of action was to continue to performance manage Mr Angelakos and improve his leadership skills. 19
[73] Mr Angelakos agreed in cross-examination that managers wear white shirts, and he wore a white shirt when working at Coles. He stated that some new employees and those doing work experience might also wear a white shirt.
[74] The allegation put to Mr Angelakos by Ms Mulenga was that when making the statements to Ms Bainbridge, he repeatedly stepped towards and then away from her, rolled his eyes, muttered and gestured his arms aggressively, before throwing his arms into the air and storming off.
[75] In his written response Mr Angelakos denied acting or speaking in an aggressive or confrontational manner. He stated that he had been concerned about the process that had been followed in preparing the marinara mix whereby fresh salmon had been added to frozen marinara mix, a process which was not followed at other Coles stores. He denied that he had made any of the statements as alleged by Ms Bainbridge.
[76] Mr Angelakos recalled that he had been walking alongside Ms Bainbridge while she worked, rather than stepping toward and then away from her. Mr Angelakos denied that he had rolled his eyes, muttered, gestured aggressively or stormed off. Mr Angelakos stated that he had felt misunderstood by Ms Bainbridge, and that Ms Bainbridge was adamant that she was correct and was not willing to discuss the matter further.
[77] Ms Mulenga determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Code, that being ‘What we expect from our team members/leaders’.
Other evidence from Ms Bainbridge
[78] Ms Bainbridge stated that she went on a period of leave during November 2017. While on leave, she received a call from Mr Hardy who informed her that several female team members working nightfill shifts were having problems with Mr Angelakos. Ms Bainbridge stated that she called one of the female nightfill team members, (whom she did not name in her statement) and asked if everything was OK at work. The team member said to her, “So you heard about Peter then?”, and proceeded to tell Ms Bainbridge that Mr Angelakos had been bothering a few of the female nightfill team members while they worked alone. Ms Bainbridge encouraged the team member to raise her concerns with Mr Hardy. Ms Bainbridge called Mr Hardy and informed him of the matters that had been brought to her attention.
[79] After returning from leave she worked several night shifts and made herself available to team members in an attempt to find out more about Mr Angelakos’ conduct, however she formed the impression that no-one wanted to discuss the matter for fear of repercussions.
[80] In cross-examination, Ms Bainbridge stated that she thought that Mr Hardy could have done more to manage the matters that had been brought to his attention, and could have stepped forward and discussed the team members’ concerns with them. 20
[81] In cross-examination, Ms Bainbridge clarified that both she and Mr Holloway had been on the call to Ms Bidewell and gave further information about Mr Holloway’s actions in respect of Mr Angelakos until that time, as follows: 21
Bainbridge: One of the main things that Andrew and I discussed in terms of me giving him very direct feedback, with the door shut so no one else could hear, would have been about Peter in November and December when I was very direct with Andrew that I thought he needed to contact HR and he wanted to continue to performance-manager Peter at work, and I was very insistent that he had to ring HR or I would and right in front of me, he rang Alina our HR - regional HR - and I heard the conversation because I wasn't leaving the room until I knew 100 per cent that she had been contacted and what her advice was for us because until that point, I was just listening to Andrew say, "I spoke to Alina and she said such and such", but I didn't have any evidence of that from Alina myself. So, that was probably the biggest interaction I had with Andrew that was really very direct feedback.
Commissioner: What's your recollection of that conversation?
Bainbridge: With Alina?
Commissioner: Yes
Bainbridge: Okay, so, Andrew rang her straight away. She wasn't on speaker phone, but I could hear quite easily because the store phone is not quiet. So - because he was on the store mobile phone and I was sitting right next to him. So, he basically said - explained all the issues we were having with the night fill team and he said, "Jo has reported to me that night fillers are telling her all these things, but none of them are brave enough to put it in writing." And - and he said to Alina, "What do we do? We need some help." And his words were, "We need some help, Alina. We need some help." And I sat there thinking, "Yes, we do, yes, we do." And - and then she said - she basically said, "We need something in writing. If no one is willing to put it in writing, we can't do anything." And Andrew said again, "But, Alina, we need some help", and she said, "Performance-manage him." And that was the only assistance we got from HR through that whole process for two months. So, I spoke to Alina myself, I spoke to Shannon after Christmas, but - - -
Commissioner: Did you raise your marinara incident with her?
Bainbridge: I can't - I don't think at that point I had. I think I did at Christmas time after Christmas.
Commissioner: But you didn't. This happened in August 2017 when you had the phone call and you were present in the room. Did you know that you were present in the room or does she think it's only Andrew?
Bainbridge: She may have thought it was only Andrew. I can't remember whether he said, "Jo and I are having a conversation." I can't remember his exact words.
[82] Ms Bainbridge stated that on a date she could not recall after returning from leave she saw KL shopping at the deli in the Coles Moranbah store, with Mr Angelakos standing extremely close to KL. Ms Bainbridge observed KL’s body language to be standoffish and nervous, and it was obvious to Ms Bainbridge that KL felt uncomfortable. Ms Bainbridge decided to interrupt KL’s and Mr Angelakos’ conversation, and as she reached them she saw that Mr Angelakos was holding his hand just below KL’s jaw, almost cupping KL’s jaw. He said, “Have you seen [KL’s] got a [attribute]?”
[83] Ms Bainbridge stated that she feigned interest until Mr Angelakos walked away, and then asked KL how she was doing. KL replied that she was ‘good’, but she thought that KL’s demeanour showed otherwise.
[84] Ms Bainbridge stated that she had been made aware that during December 2017 Mr Angelakos had threatened her daughter, Ms Kanowski, after Ms Kanowski complained about Mr Angelakos to her supervisor. Ms Kanowski informed her after the incident that Mr Angelakos had approached her while she was in the cleaning room, stood uncomfortably close to her and said, “Be careful next time you think to complain about me”, and insinuated to her that he could have her fired.
[85] Ms Bainbridge stated that on 28 January 2018 she was approached by CD who complained to her about Mr Angelakos and said to her, “He’s harassing me. I don’t want to be near him”. Ms Bainbridge stated that she asked CD to put her complaint in writing and assured CD that the complaint would be taken seriously. 22
[86] On the day Mr Morton commenced at Coles Moranbah on 29 January 2018, she told him that some team members had reported concerns to her about Mr Angelakos’ behaviour. Her conversation with Mr Morton was interrupted when Mr Angelakos entered the room, and they did not finish their conversation until later that day.
[87] Later that day, CD attended Coles Moranbah while off-shift and presented a handwritten complaint to Ms Bainbridge. Ms Bainbridge and Mr Morton then sat down to read CD’s complaint. Ms Bainbridge was shocked at the content of the complaint and decided to record her conversations with other staff regarding Mr Angelakos over the previous three months, which she emailed to Mr Shannon Inder, Regional Manager.
[88] Ms Bainbridge stated that over the following days she assisted to contact relevant team members and take written complaints from them regarding their contact with Mr Angelakos. She forwarded those written complaints to Coles’ HR Advisory Department. Ms Bainbridge stated that she had no further involvement in the matter after forwarding the written complaints.
[89] In cross-examination Mr Angelakos put to Ms Bainbridge that she had solicited complaints against him from team members including Ms Kanowski, Mr Miels and Mr Hassal, on the basis that Ms Bainbridge had stated that she had encouraged team members to put their complaints in writing. Ms Bainbridge denied that she had solicited complaints against Mr Angelakos, and stated that she had informed team members that had made verbal complaints to her that they should record their complaints in writing. 23
[90] Ms Bainbridge stated her belief that if Mr Angelakos were reinstated, he would become even more difficult to manage, particularly if he continued to perform inadequately or behave inappropriately. Ms Bainbridge stated that she would be fearful of team members’ health and safety being at risk and believed that some team members would resign.
Allegations made by witness AB, including allegations 3, 4, 5 and 6
[91] AB gave a witness statement in these proceedings and was cross-examined. At the time she was a 17 year old school student who worked as a Team Member at the Coles Moranbah store. She no longer works there.
[92] AB stated that she met Mr Angelakos in his capacity as Duty Manager at Coles Moranbah and worked a significant number of shifts with him over the course of her employment with Coles. Soon after commencing, Mr Angelakos began acting in an inappropriate manner towards her, standing in very close proximity to her of about 10 – 15 centimetres, touching her on the arm and shoulder, making inappropriate comments about her physical appearance and generally making her feel uncomfortable. She said that the behaviour made her feel anxious and frightened about being around Mr Angelakos.
[93] Her evidence to the Commission is that on 27 January 2018 she was working at one of the registers at Coles Moranbah when Mr Angelakos called out to greet her from another of the registers. She ignored Mr Angelakos as she was serving customers. Mr Angelakos greeted her a number of times during the shift on 27 January, until he eventually approached her while she was speaking to a customer, placed his hand on the small of her back and said words to the effect, “Good evening”.
[94] AB stated that she was taken aback by Mr Angelakos’ actions and felt extremely uncomfortable. She nervously responded, “Hello” before continuing to serve the customer. AB stated that when Mr Angelakos removed his hand and left the register area the customer AB was serving gave AB a concerned look.
[95] AB stated that on 28 January 2018 Mr Angelakos again approached her from behind and touched the small of her back while speaking with her. She was extremely uncomfortable with this behaviour.
[96] On the evening of 28 January 2018 she disclosed Mr Angelakos’ conduct of 27 and 28 January 2018 to her parents, who advised her to inform management at Coles Moranbah. She reported her concerns to Ms Maher, who instructed AB to report her concerns to Ms Bainbridge, which AB did. Ms Bainbridge asked AB to make a written record of the events of 27 and 28 January 2018, which she did on 31 January 2018. A copy of AB’s note was annexed to her witness statement. 24
[97] At the conference AB demonstrated how close Mr Angelakos had stood to her and how close his face had been to hers. She demonstrated how Mr Angelakos had held his hands above her shoulders, and where Mr Angelakos had touched her on the small of her back. She also demonstrated the tone of voice that Mr Angelakos had used when saying, “Good evening” to her. AB’s evidence was that Mr Angelakos had used a low and quiet tone of voice, but confirmed that she did not consider the comment had been made with a sexual undertone.
[98] In answering questions from Mr Angelakos, AB stated that she was aware of Coles’ Code of Conduct, and she was aware that if she felt uncomfortable at work, she should be able to raise the issue immediately. AB stated that she had chosen not to raise her discomfort to Mr Angelakos personally on advice from family and friends. She chose not to immediately raise the issues with Mr Angelakos to a supervisor or manager as she had initially felt uncomfortable doing that.
[99] Mr Angelakos put to AB that in her written note of 31 January 2018, she had described that Mr Angelakos had touched her on the arm or shoulder, but at the Conference AB had demonstrated that Mr Angelakos had only ‘hovered’ his hand above her shoulder and arm. AB stated that while Mr Angelakos had ‘hovered’ his hand on previous occasions, he escalated to touching her on the shoulder or arm after Mr Holloway left as Manager of Coles Moranbah.
[100] Mr Angelakos put to AB, and she agreed that it was possible for team members to get in each other’s way if there were two or three people behind the service kiosk, given the limited amount of space within the kiosk. AB stated in re-examination that she did not believe that Mr Angelakos had accidentally put his hand on the small of her back on 27 January 2018.
Allegation 3 – standing too close to AB
[101] The allegation made by Ms Mulenga to Mr Angelakos reads:
“..he would often stand very close (approximately 10-15cm) to her while he was speaking. [AB] has felt very uncomfortable about Peter’s closeness and has had to step back to maintain her personal space.”
[102] Mr Angelakos’ written response is as follows:
“I do not recollect this incident and strongly dispute the allegation. The only conversations I had with every team member I met especially the first 2 weeks after starting at this store, were all introductions, their respective departments and roles and to let them know that if they ever needed anything whilst I was on duty not to hesitate to approach me and let me know at anytime.”
[103] Ms Mulenga’s notes record that in a telephone discussion with Mr Angelakos on 2 March 2018, he confirmed that his written response is in relation to multiple alleged incidents.
[104] Ms Mulenga’s Investigation Outcome Summary details that she considered evidence in coming to her conclusion. The following assisted her in her consideration of the allegation:
● Witness evidence supports allegation of Mr Angelakos standing inappropriately to AB;
● Witnesses describe Mr Angelakos’ behaviour as an invasion of personal space;
● Witnesses provided credible and consistent evidence regarding alleged closeness.
[105] Ms Mulenga determined that the allegation was substantiated on the basis of evidence to support. She found that there had been a breach of the Equal Opportunity Policy – Sexual Harassment.
Allegation 4 – touched AB shoulder or arm
[106] The following allegation was put:
“From approximately 1 week before Andrew (Store Manager) transferred from Moranbah, Peter stared touching [AB] on her arm or shoulder when speaking with her. This touching was unwelcome and caused [AB] to feel uncomfortable.”
[107] Mr Angelakos’ written response was:
“I did not repeatedly touch [AB] on the shoulder or arm. If such an allegation was true and brought to my attention, I would have been more than willing to change my behaviour or alter my conduct to make sure my colleague did not feel this way.”
[108] In the telephone conversation of 2 March 2018 Mr Angelakos stated that he did not ever touch her on the shoulder or arm.
[109] Ms Mulenga considered the following in making her finding:
● No direct witness evidence;
● There was inconsistency in Mr Angelakos’ explanation;
● Mr Angelakos stated that he did not touch [AB] but then contradicted his statement to say if such an allegation were true, and brought to his attention, he would have been willing to change his behaviour.
[110] Ms Mulenga determined that the allegation was substantiated on the basis of evidence to support. She found that there had been a breach of the Equal Opportunity Policy – Sexual Harassment.
[111] In cross-examination, Mr Angelakos denied hovering his arm over AB’s shoulder, or ever touching her. 25
Allegation 5 – touched AB in the small of her back
[112] The following allegation was put:
“On Saturday 27 January 2018, at around 11:30am (within 30 minutes of [AB] starting) [AB] was in the kiosk serving customers. Peter greeted [AB] from the end of register 6 by saying “good evening” and [AB] responded. Peer then greeted [AB] another two times as he walked towards her in the kiosk, and [AB] responded to each greeting. While [AB] was serving a customer, Peter approached her in the kiosk and stood behind her towards the left. Peter placed his right hand, open palm, onto [AB’s] lower back/waist area and grabbed her for approximately 5 seconds while he leant towards [AB’s] ear and slowly whispered “good evening” in a low tone. [AB], frightened and uncomfortable with Peter’s behaviour, responded “hello” and kept serving the customer. Peter then walked away.”
[113] Mr Angelakos’ written response was:
“I did not whisper good evening on a Saturday morning. Could we see video evidence given an exact date and time was provided. If the allegation was brought to my attention, once again I would not have done anything to cause further discomfort and there would definitely not have been a repeated incident.”
[114] In the telephone conversation of 2 March 2018 Mr Angelakos stated that he did not touch AB at all, and he refuted the allegations in their entirety.
[115] Ms Mulenga considered the following in making her finding:
● No direct witness evidence;
● AB provided credible and consistent written statement and interview;
● AB maintained that the alleged whisper was ‘good evening’, but the alleged incident occurred in the morning/mid-day;
● AB reported the incident immediately to her parents, and to the customer service supervisors the following week;
● Mr Angelakos refuted the allegation in its entirety, requesting video evidence;
● Mr Angelakos stated if the allegation was brought to his attention he would not have done anything to cause further discomfort and there would not have been a repeated incident; Ms Mulenga considers that brings into question the credibility of his denial.
[116] Ms Mulenga determined on the balance of probabilities that she preferred AB’s evidence over Mr Angelakos’, and determined that the allegation was substantiated on the balance of probabilities. She found that there had been a breach of the Equal Opportunity Policy – Sexual Harassment.
[117] Mr Angelakos gave further evidence in cross-examination regarding this allegation. Mr Angelakos agreed that the space inside the kiosk was restricted, and there was a narrow gap between the service register within the kiosk and the cupboard where cigarettes were stored inside the kiosk. 26
[118] Mr Spargo reiterated allegation 5 to Mr Angelakos and put it to him that the conduct alleged by AB had occurred. Mr Angelakos could not recall the events of 27 January 2018 in great detail. He did not recall a specific occasion when he had been required to retrieve cigarettes from the back of the store while AB was serving customers in the kiosk.
[119] Mr Angelakos stated that he may have repeatedly greeted AB because he thought that AB may not have heard him the first time. Mr Angelakos vehemently denied that he had engaged in any of the other conduct alleged by AB in respect of allegation 5.
Allegation 6 – again touched AB on the small of her back
[120] The following allegation was put:
“On 28 January 2018 Peter approached [AB] approximately three times to greet her or provide work instructions (i.e., change registers, take over self-serve). Each time Peter approached [AB]. He stood close to her within the register area [AB] recalls that there were occasions where Peter leant in towards her and touched her lower back with the open palm of his right hand, while he spoke to her. [AB] felt frightened and uncomfortable with Peter’s closeness and touching.”
[121] Mr Angelakos’ written response was:
“I would think that if [AB] was ‘frightened and uncomfortable’, especially after the previous days allegations that she would escalate these matters at the time they occurred. When Liz and Vanessa are supervising on my weekend on, I do not provide work instructions (i.e. change registers, take over self-serve) to the team members directly and usually only confer with my supervisors of any requirements or business needs for them to relay.”
[122] In the telephone conversation of 2 March 2018 Mr Angelakos denied touching AB on the lower back.
[123] Ms Mulenga considered the following in making her finding:
● No direct witness evidence;
● AB’s statement was consistent and credible;
● Mr Angelakos’ response re not providing work instructions to team members was contradictory;
● On the balance of probabilities and having regard to the pattern of close behaviour, the evidence of AB is preferred.
[124] Ms Mulenga determined on the balance of probabilities that the allegation was substantiated. She found that there had been a breach of the Equal Opportunity Policy – Sexual Harassment.
[125] In answering questions from Mr Spargo in cross-examination, Mr Angelakos reiterated that, while he denied the truth of AB’s allegations, he was surprised that if AB had felt frightened or uncomfortable from Mr Angelakos’ conduct, that AB had not raised the issue with Mr Angelakos primarily, or with somebody else if AB felt uncomfortable discussing the matter with Mr Angelakos. 27
Allegations made by witness EF – including allegations 7, 8, 9 and 10
[126] Witness EF gave a witness statement in respect of this matter and was cross-examined. She is currently working as a permanent part-time team member in the Service department at Coles Moranbah, whilst still at school. She is aged 17.
[127] EF first met Mr Angelakos when he commenced work at Coles Moranbah in May 2017. She often worked similar shifts to Mr Angelakos, and they had a generally friendly working relationship in the first few months of his employment at Coles Moranbah.
[128] EF stated that whenever Mr Angelakos spoke to her he would usually stand in very close physical proximity, within roughly 10 - 15 centimetres of her face. When Mr Angelakos stood that close, she usually took a step back to which Mr Angelakos would usually take another step closer to her. EF could not recall how often this occurred but noted that she distinctly remembers it taking place on one occasion while working in the assisted checkout area.
[129] EF stated that she had often witnessed Mr Angelakos standing in close proximity to other young female staff members. EF distinctly remembered seeing Mr Angelakos standing very close to CD on several occasions, and CD always appeared uncomfortable whenever Mr Angelakos stood in close to CD. EF stated that she witnessed Mr Angelakos speaking to CD a lot.
[130] EF began to limit her interactions with Mr Angelakos in the workplace by trying to avoid making eye contact with him so that he would not approach her. EF stated that if she avoided interacting with him, she could prevent Mr Angelakos being in her personal space.
[131] EF stated that on a date she could not recall during late 2017, Mr Angelakos approached her at work while she was stocking the drinks fridges and said to her words to the effect, “You have a very beautiful face”. EF stated that she was unsure of what to do or say and so simply thanked him and continued with her work. It should be noted that this allegation did not form one of the 39 allegations put to Mr Angelakos by Coles or a reason for this dismissal.
[132] EF stated that at around 8:00pm on a date she could not recall during October 2017, she made a priority call to alert other staff members that she needed assistance at the registers. She understood that it is standard procedure for Coles employees to make a priority call when staff at the registers are becoming overwhelmed by customers.
[133] Her evidence is that it was not uncommon for a priority call to be made at Coles Moranbah at around 8:00pm as only two staff members are usually rostered on to serve at the registers at that time. After making the priority call, EF noticed Mr Angelakos nearby, who appeared not to be doing anything. She made a second priority call, to which Mr Angelakos responded.
[134] EF stated that once she finished serving the waiting customers, she went to perform another task before making her way back to the registers, at which point EF heard Mr Angelakos yell out her name in an aggressive voice. EF stopped just near to him, at which point he approached her and stood uncomfortably close to her face and said in a loud and aggressive voice, “Don’t call priority second call while I’m here at night”.
[135] EF stated that she tried to explain to Mr Angelakos that she had been told to make a second priority call if the first priority call went unanswered and there are customers still waiting, to which Mr Angelakos responded, “Not while I’m here”. She responded, “Yep ok” and then walked away and continued working. EF stated that AB witnessed this interaction.
[136] EF stated that approximately 10 to 15 minutes later, Mr Angelakos again approached her at the registers and said to her in a softer voice, “With the second call, don’t do it when I’m here, just in case Linda is in the store, I don’t want her to hear that second call”. EF understood Mr Angelakos to mean Ms Linda Daniels, the Customer Service Manager at Coles Moranbah at the time.
[137] At about 6:00pm while working on a day on the weekend after the priority call incident, EF was directed by Ms Daniels to clean one of the registers. She started to clean the register after she had finished serving the customers at her register. Mr Angelakos was also at the registers serving customers at that time, after he had responded to a priority call. While Mr Angelakos was serving his last customer, Mr Angelakos turned to EF and loudly called out her name. She looked over to Mr Angelakos, who gestured towards her with his index finger and beckoned EF to come over to him. She went over to Mr Angelakos and he said to her to “Get back to what you’re doing”, and dismissed EF with a sweeping hand gesture, after which she continued to clean her register.
[138] Her evidence is that after Mr Angelakos finished serving his customers he approached her and said authoritatively, “When I’m serving you take over from me”. EF stated that Mr Angelakos pointed aggressively at her with his index finger, with his face approximately 20 centimetres from her face. EF stated that she apologised to Mr Angelakos and tried to explain to him that she had been directed to clean by Ms Daniels, to which Mr Angelakos responded, “I don’t care, you take over from me”.
[139] EF stated that at around 2:30pm on a date she could not recall, approximately one week after Mr Angelakos had instructed her to take over from him on registers, she had noticed Mr Angelakos at one of the store’s registers as she had told her supervisor that she was taking her break. EF acknowledged Mr Angelakos with a quick smile. After turning to walk away from the registers, Mr Angelakos stepped out from behind his register, approached her, stood very close to and leaned over EF and said in a deep, scolding voice, “You say hello to me when you see me, you are very rude”. Before EF had an opportunity to respond, Mr Angelakos again said, “It’s very rude”. EF was not sure what to say or do in response so simply said “Hello” and walked away.
[140] On a date after 29 January 2018, EF was approached by Ms Bainbridge, who asked her to record any issues she had with Mr Angelakos in writing. EF understood that Ms Bainbridge had been aware that she had experienced issues with Mr Angelakos.
[141] After finishing work on 31 January 2018, EF prepared a note summarising her various interactions with Mr Angelakos that she thought were inappropriate or made her feel uncomfortable. She submitted her note to Ms Bainbridge by email.
[142] EF’s evidence is that she would not feel comfortable working or interacting with Mr Angelakos again, and would not trust Mr Angelakos to treat her in a respectful or friendly way. She stated that if Mr Angelakos were reinstated to his former position with Coles Moranbah, she would ask to not be rostered on with him, or request to be transferred to a department to him, and would consider resigning.
Allegation 7 – priority to service call
[143] The allegation that Mr Angelakos had inappropriately chastised EF regarding the priority to service call was put to him. It was put to Mr Angelakos that about fifteen minutes later, he again approached EF and said in a softer tone, “With the second call, don’t do it when I’m here, just in case Linda is in the store, I don’t want her to hear that second call”. EF replied, “That is just what I’ve been told to say by Linda and other supervisors when you make a priority call and no one comes”.
[144] In his written response, Mr Angelakos stated that he did not recall the incident, and called for video evidence. In a telephone conversation on 2 March 2018 he refuted the allegations and said that nothing like this ever occurred.
[145] Ms Mulenga considered the following in making her finding:
● Witness evidence supports EF’s version of events;
● Witness recalls, “Peter had a raised voice, he sounded angry and the look on his face and was pretty scary and very aggressive. He was kinda like standing up straight but trying to lean over the top of her.”
● Mr Angelakos refuted the allegation and requested video evidence.
[146] Ms Mulenga determined that the allegation was substantiated on the basis of evidence to support. She found that there had been a breach of the Equal Opportunity Policy – Workplace Bullying.
[147] In cross-examination, Mr Angelakos clarified his opinion that ‘juniors’ should not make priority calls, as they would often call for them ‘in a panicked way’ and ‘if you were a customer you would think there’s a panic going on and they’re flustered’. However, Mr Angelakos reiterated that he could not recall the incident as alleged by EF.
Allegation 8 – “take over from me”
[148] The allegation that he had inappropriately chastised EF for failing to take over from him at the registers was put to Mr Angelakos. It was put to him that the Supervisor had been ‘Jenny’, and she was counting money at the opposite register when she overheard this Following what Mr Angelakos said to EF, Jenny said to Mr Angelakos, “Peter, I asked her to clean, not take over you”. Mr Angelakos then walked over to Jenny to speak with her.
[149] In his written response, Mr Angelakos stated that he could not recall the incident alleged by EF and called for video footage. In a telephone conversation on 2 March 2018 he stated that he did not believe it happened, and said, “Could you please show me otherwise.”
[150] Ms Mulenga considered the following in making her finding:
● Witness evidence supports EF’s version of events;
● Witness confirmed that EF was directed to clean;
● Witness observed Peter telling EF that she should have taken over from him instead;
● Witness believed Peter was ‘aggressive’ and ‘tore into [EF]’, and referred to the behaviour as bullying;
● Witness reported the incident to the Customer Service Manager.
[151] Ms Mulenga determined that the allegation was substantiated on the basis of evidence to support. She found that there had been a breach of the Equal Opportunity Policy – Workplace Bullying.
[152] In cross-examination, Mr Angelakos stated that he could not recall the incident as alleged by EF. However, Mr Angelakos then attempted to explain his understanding of the appropriate protocol in the circumstance that EF’s allegations did in fact occur. It was not clear from Mr Angelakos’ subsequent explanation whether he did in fact recall the incident with EF. Mr Angelakos’ approach to answering Mr Spargo’s question in this instance is indicative of the manner in which he described his recollection or otherwise of several of the allegations made against him. It is helpful to refer to the transcript of the discussion between Mr Spargo and Mr Angelakos in this respect: 28
Spargo: All right. Mr Angelakos, the following weekends, so around the same time last year, do you remember an incident where EF was cleaning the registers and you were serving, and you came over to [EF] and you said in a loud voice words to the effect of: When I'm serving you take over from me?
Angelakos: Say it again, please?
Spargo: Do you remember an incident involving you and EF, when EF was cleaning registers while you were serving people - customers - and you came over to [EF] and you said in a loud voice words along the lines of: When I'm serving you take over from me?
Angelakos: No, but I do recall on one occasion, if that's the occasion, that when I'm serving and it's their job to be serving, instead of them serving - because we never used to serve since someone was available on - getting off the register because he had other things to do. Likewise, rather than somebody clean the register, I have other things to do.
Spargo: Okay, Mr Angelakos. So you're doing this again where you're saying you didn't say this to EF, but you're also giving an explanation for why you would have. So did you tell [EF]: when I'm serving you take over from me - - -?
Angelakos: No.
Spargo: - - - while [EF] cleaning the register or not?
Angelakos: No.
Spargo: You did? I didn't do it, no.
Angelakos: No, I didn't.
Spargo: From what you're saying, Mr Angelakos, if [EF] had been, then you would have? It would have been appropriate for you to do so, because you're saying [EF] should take over?
Angelakos: …and I asked [EF] - it's better that rather than cleaning that [EF] should take over.
Spargo: I couldn't understand that, Mr Angelakos. Are you saying that you did tell [EF] that rather than cleaning [EF] should take over now?
Angelakos: No. I didn't tell [EF], no. I explained to [EF] that rather than cleaning when [EF’s] role is to serve the customers, [EF] should take over from me.
Spargo: Okay, Mr Angelakos. So you're saying to me now you do remember this interaction, but you're saying - you're characterising it as you explained this to [EF], rather than you told [EF]? You need to be frank with me here, Mr Angelakos?
Angelakos: You need to give me more details (indistinct) it goes to all these recollections that you're asking me to remember and all these incidences where - why would I choose to remember all this stuff - I've heard that long ago - if I didn't think there was anything wrong?
Spargo: Yes, but I think you do remember, Mr Angelakos, because - - -?
Angelakos: How's that? How do you think (indistinct)?
Spargo: You're now saying - - -?
Angelakos: Were you there?
Spargo: Mr Angelakos, it's not for you to ask the questions. You are now saying to me that you did, to use your word, explain to EF that when you're serving [EF] should take over from you rather than cleaning? Is that your evidence now, Mr Angelakos?
Angelakos: I don't know. What's - the evidence was whatever I said before.
Commissioner: Well, I won't have you read anything there, Mr Angelakos. Just look directly at the camera and answer the question?
Angelakos: Yes, I am.
Commissioner: Well, you haven't just now.
Spargo: Sorry, Commissioner.
Commissioner: No, you ask the question again, Mr Spargo.
Spargo: Is your evidence now, Mr Angelakos, that you recall explaining to EF that - - -?
Angelakos: No, I don't recall.
Spargo: You don't? So you never had a discussion with EF about - - -?
Angelakos: No, I don't recall that.
Spargo: - - - taking over from you? You don't recall that, okay. I suggest to you that you did and that's what you were talking about before, and while you did that, you used your index finger to point at [EF] and your face was approximately 20 centimetres from [EF’s] face, is that right?
Angelakos: I suggest you're totally wrong.
Spargo: I suggest to you that you were treating EF this way because you felt [EF] was rude because [EF] didn't say hello to you?
Angelakos: Once again, I suggest that you're wrong.
Allegation 9 – targeting or picking on EF
[153] It was put to Mr Angelakos that during the same weekend as allegation 8, EF had been re-stocking a drinks fridge as directed by her supervisor, ‘Liz’. EF saw Mr Angelakos approach Liz and speak to her. Liz then approached EF and directed her to return to her register, although there were no customers to serve. Mr Angelakos then directed another employee to continue stocking the fridge. EF stated that she recalled other occasions on weekends when Mr Angelakos instructed service supervisors to direct EF to remain at her register even when there were no customers to serve. EF stated that she felt targeted by Mr Angelakos as it did not appear to happen to other service team members.
[154] In his written response, Mr Angelakos stated that on previous occasions he had noticed EF ‘amble around the store putting loose stock away’. Mr Angelakos stated that he had instructed EF that she could provide returnable stock in the fresh produce department to a fresh produce team member if one was available; a direction which Mr Angelakos noticed EF ignore when a fresh produce team member had been available. Mr Angelakos also stated that he felt EF was not as productive as other team members when filling drinks. On the day in question, he asked Liz to leave EF on registers for reasons of efficiency. Mr Angelakos considered that she could be more efficient at the register by proactively asking customers to come to her register.
[155] Mr Angelakos stated that his direction had not been about keeping EF at the register; it had been about her being more efficient at the register.
[156] Ms Mulenga considered the following in making her finding:
● Witness evidence supports that Peter told them to keep EF at the register and stop EF from filling drinks and completing returns;
● One witness corroborated Peter’s claim that EF would walk around the store and not always remain on task, however this witness considered that Peter was picking on EF;
● If there were performance issues with EF it does not appear that they were addressed/managed reasonably;
● Supervisors would tell EF to stay at the registers if Peter was on shift, even if there were no customers around.
[157] Ms Mulenga determined that the allegation was substantiated on the basis of evidence to support. She found that there had been a breach of the Equal Opportunity Policy – Workplace Bullying.
Allegation 10 – “Say hello…..you are very rude”
[158] The allegation that he had said to EF, “You say hello to me when you see me, you are very rude”, and the following remarks was put to Mr Angelakos. In his written response, Mr Angelakos stated:
“I don’t recall this incident that supposedly occurred at an ‘approximate’ timefreame. Nor do I work consecutive weekends as alleged.”
[159] In a telephone conversation on 2 March 2018 he said words to Ms Mulenga to the effect:
“I do not remember this happening. I am refuting the allegation. I’m of the opinion that if staff can’t say hello amongst each other then what hope do the customers have? But I have never spoken to [EF] about not greeting me. There have been times where team members have not greeted me and I would’ve said “hello?” and I think they understood what I meant by that. I cannot recall ever doing this to [EF]. There were many people in the store who didn’t say hello.”
[160] Ms Mulenga considered the following in making her finding:
● Witness did not directly observe incident;
● Witness recalls EF advising she was going on a break, then Peter talking to her. Did not hear what they were talking about;
● EF reported the alleged incident to the witness and was observed visibly upset;
● Peter expressed dissatisfaction about team members not greeting him;
● Comments of ‘rude’, ‘very rude’ and consistent with [Peter’s] language.
[751] Deputy President Bull also gave regard to the considerable age difference between Mr Sapienza and the female customers that he had requested physical contact from. 125
[752] In Abarra, it was found that Mr Abarra had created a ‘weird and dirty atmosphere at work’ by allowing conversations of an intimate nature to occur in the workplace and by himself making personal comments or having discussions about the appearance of young female staff members. Although denying that he had made some sexually-explicit comments, Mr Abarra also submitted that his comments were just jokes, that he was just a friendly person, that his comments were flattering, that his comments were not limited to young female staff members and that because the staff members in question had not objected to his comments, they could not be considered offensive and therefore did not breach the behavioural standards governing Mr Abarra’s employment.
[753] Considering the above conduct and Mr Abarra’s submission, Commissioner Harper-Greenwell found that Mr Abarra’s comments were, ‘a rather blatant form of benevolent sexism which has no place in the workplace’. 126
[754] I have considered the Code and the Equal Opportunity Policy, and I conclude that they are appropriate and reasonable workplace policies, and the requirement not to breach the documents is an important employment obligation to employees. Mr Angelakos was in a senior role at the store, and had recently undertaken further training in leadership. As a mature gentlemen, familiar with the Code and the EO Policy, he should have, or ought to have known that his conduct amongst young, female employees, some still at school, needed to be appropriate.
[755] Whilst noting that where I have concluded there are breaches of the Code and EO Policy it is on the balance of probabilities, the most serious breach of the Code and EO Policy related to Mr Angelakos’ conduct to AB, a school-age employee. I conclude that while Mr Holloway was the Store Manager, Mr Angelakos engaged in inappropriate behaviour, including touching. This inappropriate conduct was escalated upon Mr Holloway leaving and there being a period of one week without a Store Manager.
[756] In my view, Mr Angelakos tested the water with AB on 27 January 2018 in touching her inappropriately and unnecessarily on the small of her back for a period of approximately five seconds. This made her feel uncomfortable, and the defence of there being somewhat limited room in the service desk area is not accepted, especially as he never had reason to touch older, larger employees in the small of their back to manoeuvre around the space. I consider that Mr Angelakos took the opportunity of being without a Store Manager to engage in this conduct.
[757] Having escaped challenge, he repeated the action three times the following day. There is no satisfactory explanation Mr Angelakos can provide for this conduct, other than he expected if AB was upset, she should have told him so.
[758] Quite rightly, she informed her parents that night and they encouraged her to speak to a manager, which she did. It was promptly addressed and investigated. Noting that the ‘#metoo’ movement commenced gaining traction in late 2017, it was brave and entirely appropriate for AB to come forward with her allegations and allow them to investigated. Of course victims of workplace sexual harassment of both sexes have come forward with allegations for scores of years, but in the year 2018, the encouragement to do so, and facilitation of inquiry was there, at least in this workplace.
[759] Mr Angelakos’ initial interest in CD’s attractiveness, and his ongoing interest in KL, bordering on, in my view, an obsession also was unacceptable. He paid far too much unwelcome interest in KL and made her very uncomfortable in the workplace. In the extremely short time he worked with CD, it wasn’t just CD who was uncomfortable; many of the staff formed the impression that he was unnecessarily close to CD or spent too much time with her.
[760] Another of the most serious breaches was the victimisation of Ms Kanowski in allegation 26. It is intolerable for a senior manager to make threats towards an employee for making a complaint about them. In my view, Mr Angelakos engaged in inappropriate behaviour towards employees who challenged him, or he felt made him look like he was not doing his job well.
[761] There was no suggestion that Mr Angelakos was a poor performer. Yet, in scenarios where a junior employee called a priority call, he overreacted and became overbearing, making threats to employees. I conclude on the balance of probabilities that Mr Angelakos suggested retaliation to not only Ms Kanowski, but to EF, Linda Daniels and to Trudy Maher. This is unacceptable conduct.
[762] Having taken account of the fact that Coles decided to terminate Ms Angelakos’ employment on all of the breaches found by Ms Mulenga to have occurred, and having determined that some of those were improperly found, I am satisfied that many of the allegations, for which I have found there is a breach, constitute a valid reason for the dismissal. Not all of them would, of course, constitute a valid reason for dismissal as some are not as significant as others. However, where Mr Angelakos breached the EO Policy with respect to touching AB on 27 and 28 January 2018, and where he breached the EO Policy in victimising Ms Kanowski, these alone are valid reasons for the dismissal.
[763] Having found that there are at least two serious matters that constitute a valid reason for the dismissal, I do not consider it necessary to determine in respect of all of the other findings which ones would also constitute a valid reason for the dismissal.
s.387(b) - Whether the person was notified of that reason
[764] It is not disputed by either party that Mr Angelakos was informed of the reasons for his dismissal by Mr Morton and Ms Bidewell during the meeting of 9 March 2018. The findings of substantiated allegations only are set out in the Discussion Record. None of the unsubstantiated or unable to be substantiated findings are in the Discussion Record. Accordingly I am satisfied that there was no distraction, and it was clear, on reading the Discussion Record what the adverse findings were.
[765] The evidence before me is that Mr Morton and Ms Bidewell summarised Ms Mulenga’s findings to Mr Angelakos and sought his further written response. After considering his response, Mr Morton and Ms Bidewell informed Mr Angelakos that as a result of the findings that had been substantiated against him, Coles was considering terminating his employment.
[766] I have found above that there were valid reasons for Mr Angelakos to be dismissed. Those reasons were the allegations made against him by the complainants that were found by Ms Mulenga to be substantiated and in breach of the Code or the EO Policy. I am satisfied that Mr Angelakos was made aware of Ms Mulenga’s findings prior to his dismissal.
[767] I am satisfied that Mr Morton and Ms Bidewell notified Mr Angelakos the reason for the dismissal during the meeting on 9 March 2018.
s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
[768] I note that Mr Angelakos chose to seek legal advice before preparing his response to each of the 39 allegations. He was provided with the written allegations on 23 February 2018, but did not begin working on his written responses until 1 March 2018.
[769] It is reasonable to expect that given he was on paid suspension, and the allegations were articulately put to him, with spaces ready for his response, he should have worked on the document between 23 and 28 February 2018.
[770] I am satisfied that he was provided with an opportunity to respond.
[771] Upon Ms Mulenga deciding some of the allegations were unsubstantiated or unable to be substantiated, Mr Angelakos was then faced with a slightly reduced number of allegations. He was aware that they would be discussed during the 9 March 2018 meeting and he would be provided with an opportunity to respond.
[772] On the evidence before me, I am satisfied that he was provided with an opportunity to respond in the written material, in the telephone call with Ms Mulenga on 2 March 2018, and during the meeting of 9 March 2018.
s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[773] Mr Angelakos was offered the opportunity to have a support person at his interview with Ms Mulenga on 23 February 2018 and at the outcome meeting with Ms Morton and Ms Bidewell on 9 March 2018. On the evidence before me, Mr Angelakos was not refused the opportunity to have a support person at either of those meetings.
s.387(e) - Was there a warning of unsatisfactory work performance before dismissal
[774] The difference between ‘performance’ and ‘conduct’ was considered by the Full Bench of the Australian Industrial Relations Commission, as this Commission was then known, in the appeal case of Annetta v Ansett Australia Ltd. 127The employee in that case, Mr Annetta, worked in the engine maintenance division of the now defunct Ansett airline. Mr Annetta had been dismissed after:
• he had refused to complete a job which he considered would require two people to complete and the second person to complete the job did not know how to do the job. Mr Annetta knew that he would be expected to teach the other employee how to do the job and he would be required to do most of the work;
• he had not fixed a mistake made by another worker on a gearbox when asked to fix that mistake;
• he had brandished a home-made knife at another employee. Mr Annetta claimed at the time and at the hearing that he had been acting in self-defence or retaliation.
[775] The notice of termination provided to Mr Annetta stated that he had been dismissed, ‘on the basis of 3 refusals of duty, brandishing a knife and unacceptable behaviour as outlined in the final warning on your personal file’. 128
[776] In the decision at first instance, Senior Deputy President Acton considered the predecessor section to s.387(d) of the Act and stated, “I am not satisfied s.170CG(3)(d) is relevant to this matter, given I have found there was a valid reason for Mr Annetta's termination related to his conduct as opposed to unsatisfactory performance by him.” 129
[777] It was submitted on appeal that Mr Annetta’s refusal to undertake certain jobs should be characterised as ‘unsatisfactory performance’ and that Mr Annetta had been terminated without being warned about that performance, and the Senior Deputy President had been bound to consider the failure to warn Mr Annetta. The Full Bench considered the predecessor section to the current s.387(e) of the Act (which is expressed in similar terms) and whether warnings of unsatisfactory conduct were relevant to the consideration of this criterion, and stated: 130
“[16] …In approaching the construction of the term "unsatisfactory performance" it may be significant that in describing a valid reason s.170CG(3)(a) distinguishes between capacity and conduct. Although neither term appears in s.170CG(3)(d) we think that performance is more likely to relate to capacity than to conduct. The preliminary question posed by paragraph (d) itself is whether the appellant's employment was terminated for unsatisfactory performance. While in a limited sense it was, because the misconduct was constituted by a refusal to perform work, we do not think that the conduct is unsatisfactory performance within the meaning of the paragraph. The paragraph is intended to refer to the level at which the employee renders performance including factors such as diligence, quality, care taken and so on. While there might be some overlap between the concept of unsatisfactory performance and the concept of misconduct, for example in relation to neglect of duty or poor timekeeping, misconduct of the kind which occurred in this case is in a different category. On one reading of the relevant paragraph the Senior Deputy President may have implied that conduct can never be categorised as unsatisfactory performance. Whether she did so is immaterial in this case. We are satisfied that the appellant's employment was not terminated for unsatisfactory performance within the meaning of that term in s.170CG(3)(d) [emphasis retained].”
[778] In the present matter some evidence has been given, particularly by Ms Bainbridge, that there were some deficiencies in Mr Angelakos’ performance in the Duty Manager position. Ms Bainbridge’s evidence is that she gave Mr Angelakos feedback in relation to multiple aspects of his performance and conduct in the Duty Manager position throughout his employment at Coles Moranbah. I do not consider that any of the informal ‘coaching’ comments directed to Mr Angelakos by Ms Bainbridge would qualify as warnings to Mr Angelakos that his performance was unsatisfactory.
[779] It could be suggested that Mr Angelakos’ conduct as the Duty Manager towards other staff within the store was also related to his capacity to fulfil that position, particularly in light of the additional responsibilities imposed on Mr Angelakos as a leader under the Code. Any overlap in that respect is similar to the concept put forward by the Full Bench in Annetta v Ansett Australia Ltd as extracted above. However, similar to the conclusion reached by the Full Bench in that case, I consider that the matters alleged against Mr Angelakos that formed the basis of Ms Mulenga’s investigation and subsequently the reasons for his dismissal were related to his conduct, and not his capacity or performance in the Duty Manager position, as is contemplated by s.387(e) of the Act.
[780] I accept Coles’ submission that Mr Angelakos was dismissed for misconduct and not for performance. I consider that this criterion is not relevant to my decision in this matter.
s.387(f) - Whether Coles’ size impacted on the procedures followed
[781] It is not contested between the parties that Coles is a very large employer. In its original Form F3 response to Mr Angelakos’ application it was stated that it employs approximately 100,000 people throughout Australia, and 25,000 within Queensland alone. Both parties acknowledge that Coles does not lack for human resources expertise.
[782] Mr Angelakos submitted that Coles’ size and its dedicated human resources department meant that the receipt and initial handling of the complaints against him, as well as Ms Mulenga’s investigation, could have been handled better.
[783] I do not find that Coles’ size impacted on the procedures followed. This matter is a neutral consideration.
s.387(g) - Whether the absence of a dedicated resource management specialist impacted on the procedures followed
[784] Coles has dedicated human resources expertise. This matter is a neutral consideration.
s.387(h) - Other matters
[785] Mr Angelakos has posited two possible theories; firstly that junior employees conspired individually or collectively to have him removed from the role, and secondly, that Ms Bainbridge solicited statements from employees who would not have made a statement but for her prompting. He considered that Ms Bainbridge, her daughter Ms Kanowski, and Mr Miels were in concert together.
[786] It is clear that Mr Holloway did not fulfil his duties as a Store Manager to an appropriate standard. He has been issued a first and final warning by Coles, and in correspondence seen by the Commission, made admissions to Coles that he was not paying appropriate attention to his duties.
[787] I do not accept Coles’ submission that to the extent Mr Holloway failed to escalate issues raised with him that he was aware of throughout 2017, he was acting outside of his authority as Store Manager, and his inaction should not be attributed to Coles. It is an extraordinary claim to make. Mr Holloway was not acting outside of his authority; he simply was not doing his job to an appropriate standard. He had the care of young people in his employ, and there were sufficient grumblings to have warranted his attention.
[788] Coles is one of the largest employers in the country. If an Area Manager can’t visit the store at least twice a year and speak with employees and supervisors, and seek their views on how management is performing, that is a dreadful state of affairs. A regional Store Manager should not be the dead end for the making of complaints; a relationship between Mr Holloway’s manager and store employees should be par for the course. Further, Ms Bainbridge’s evidence at [81] was that Ms Bidewell was implored to assist Mr Holloway and simply directed the collection of written statements and performance management of Mr Angelakos. An Area Manager visit allowing conversation with employees might have alerted head office to there being a concern among employees that Mr Angelakos was acting inappropriately and no confidence was held in Mr Holloway to do anything about it.
[789] I do not, however, accept Mr Angelakos’ theories that there was a conspiracy against him. His actions in touching AB on her back repeatedly over two days was the catalyst for the making of a serious written complaint against him. At the same time this was occurring, CD, a very new employee had already had enough and she too was making complaints in-store.
[790] On Mr Morton’s arrival, he was faced with serious allegations from young staff members, and an instruction from head office is made to determine if there are any other complaints against Mr Angelakos. I have no issue with this course of events.
[791] When the complaints are compiled, the sheer volume is concerning. It is no wonder Mr Angelakos was stood down from his employment while the investigation was undertaken.
[792] As is evident from my findings on each of the substantiated allegations, the large majority of them I accept. There is no conspiracy against Mr Angelakos; his conduct towards some employees was inappropriate.
[793] I accept there was some prejudice to Mr Angelakos in the investigation given some of the complaints made against him were quite old. However the most serious allegations, those of AB, CD and KL were not old complaints; they were very fresh complaints.
[794] I also accept that Mr Angelakos probably considered that he was a fun and pleasant manager, and he genuinely considered that he had a good relationship with employees, including young employees. It is an important responsibility being the Duty Manager. There are many people to manage, all with very different reasons for choosing to work at Coles. For some it might be their first job. For others they might be working nightfill to bring in extra money into the family budget, and largely not have to interact with too many people. Other people make careers out of working for a supermarket.
[795] It could be said that Mr Angelakos tried hard, perhaps too hard, to engage on a social level with some employees. I do not consider that it was always based on his feelings of attraction to some employees; he appeared to me to be an older man with a reasonable amount of responsibility, spending his afternoons and nights at Coles trying to appear to his employees to be fun.
[796] I note that some employees attempted to coach Mr Angelakos where Mr Holloway lacked any interest in doing so. It appeared to me that Mr Angelakos and Ms Channells got along quite well, and as a mature woman and a manager, she made attempts to guide him in his dealings with employees. I formed the impression that he respected her very much, but did not make the necessary improvements.
[797] Relevant to Coles’ investigation of the allegations, I consider that Ms Mulenga did a good job, and took a professional view of the matter before her. She made appropriate findings with the material before her, and didn’t, in my view, jump to unnecessary conclusions of substantiation. Her findings were reasonable with the information she had before her. I accept her evidence as to what Mr Angelakos said to her during their 8 March 2018 phone call, and consider that Mr Angelakos acted disgracefully. I note, however, that this did not form any of the reason for the dismissal, and I have not considered Mr Angelakos’ behaviour on this matter in my deliberation.
[798] I consider it entirely appropriate that at meeting was held with him on 9 March 2018. I hold concerns, however, that Mr Angelakos was afforded a small window during the meeting to learn that Coles was considering terminating his employment and when this took place.
[799] The evidence is a little unclear as to when the meeting broke, and how many breaks there were. What is clear is that after a break Mr Angelakos was told that Coles was considering terminating his employment and he needed to show cause why his employment should not be terminated. He was afforded some time to add four additional lines to his written response. The evidence is not clear as to whether this was done while Mr Morton and Ms Bidewell were present in the room.
[800] I appreciate that Mr Angelakos had been informed the day before of the findings of the investigation, but to learn during the meeting that he needed to show cause, and for the termination to be effected, it appears to me to be somewhat rushed.
[801] I am not satisfied that appropriate consideration was given to Mr Angelakos’ pleadings of mitigation relevant to living in a regional area, living in subsidised housing, having to relocate his family and the like. Ms Bidewell’s evidence is that she was aware that he had children, but not that they were of primary school age. It is her evidence that the decision makers were aware that Coles would need to relocate Mr Angelakos and his family to Mackay ‘at least’.
[802] I determine that even if the meeting had been suspended for a day or more, and Mr Angelakos was afforded additional time to plead mitigation in a more formal show cause response, the employment would have still ended for the same reasons. At most, I consider that Mr Angelakos would have continued in his employment for one to two days. I accept that Coles had lost all trust and confidence in Mr Angelakos, and he could not have returned to the store on account of his failure to accept his conduct, his inability to recognise his personal interactions with staff members (such as standing too close), and the potential for retribution towards employees.
[803] Relevant to the consideration of harshness, it was acknowledged that in a one-supermarket town, Coles would need to repatriate Mr Angelakos and his family to ‘at least’ Mackay. This discussion then grew into a request for relocation to Sydney, initially rejected by Coles and then agreed. At this stage Mr Angelakos’ family had already returned to Sydney and he did not accept the offer made by Coles.
[804] At the conference I suggested that perhaps he could be reimbursed for his relocation costs to Sydney even after they had been expended. Mr Angelakos said he would make inquiries. I consider Coles’ offer to relocate Mr Angelakos and his family to Mackay to be reasonable in all the circumstances.
[805] I am mindful that with eight years’ service for the purposes of long service leave, pro rata payment pursuant to the Industrial Relations Act 2016 (Qld) is not available to Mr Angelakos unless a finding is made that he has been unfairly dismissed. 131
[806] Relevant to Mr Angelakos’ submissions that he should have been issued a warning instead of being dismissed, I am satisfied that Coles was entitled to conclude that there was no basis for confidence that Mr Angelakos would comply with the Code and EO Policy in future if his employment continued. For that reason Mr Angelakos’ dismissal cannot fairly be characterised as a disproportionate response to his conduct, and the detrimental consequences which have resulted from the dismissal must be considered to be the inevitable result of the fact that Mr Angelakos’ conduct rendered the continuation of his employment untenable.
[807] For the reasons stated above, I consider that Mr Angelakos would likely have caused some retribution on some employees if he had returned having received a warning. Mr Angelakos largely does not accept that he engaged in the conduct complained of, and I do not consider that a warning would have resulted in an acceptance of the conduct.
Post-employment conduct
[808] I have not considered Mr Angelakos’ post-employment conduct in making this unfair dismissal determination and it has had not any bearing on my determination. Mr Angelakos’ post-employment conduct would only have been considered had I found that he had been unfairly dismissed and only in consideration of whether it may have been appropriate to order Mr Angelakos’ reinstatement.
Conclusion
[809] Having considered each of the matters specified in s.387 of the Act, I am not satisfied the dismissal of Mr Angelakos was harsh, unjust or unreasonable.
[810] Accordingly, I find that Angelakos’ dismissal was not unfair. The application is dismissed and an Order [PR704449] to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr Peter Angelakos, Applicant.
Mr Will Spargo, Lander & Rogers, for the Respondent.
Hearing details:
Brisbane, Sydney (by video link), Moranbah (by videolink); 17, 18, 19, 20 September 2018.
Final written submissions:
Applicant’s closing submissions, 10 October 2018.
Respondent’s closing submissions, 16 October 2018.
Printed by authority of the Commonwealth Government Printer
<PR703582>
1 Angelakos v Coles Supermarkets Aust. Pty Ltd T/A Coles Supermarkets [2018] FWC 3407.
2 Form F2 – Application of Mr Peter Angelakos, 29 March 2018, Part 3.2.
3 PN886 – PN891; PN904 – PN908.
4 Statement of Mr Patrick Morton, 3 August 2018, Annexure PFM-1.
5 Statement of Mr Patrick Morton, 3 August 2018, Annexure PFM-2.
6 Statement of Ms Mo Mwango Mulenga, 3 August 2018, Annexure MMM2.
7 Ibid, Annexure MMM3.
8 PN1308 – PN1314; PN1949 – PN1951.
9 Statement of Ms Mo Mwango Mulenga, 3 August 2018, Annexure MMM8.
10 Statement of Ms Mo Mwango Mulenga, 3 August 2018, Annexure MMM9.
11 PN1350 – PN1354.
12 PN1363 – PN1366; PN1428 – PN1452.
13 PN559 – PN568.
14 PN2921 – PN2960.
15 PN108.
16 PN129.
17 PN4434 ; PN4442 – PN4449; PN4490 – PN4495.
18 PN121.
19 PN4397 – PN4400.
20 PN4421.
21 PN4392.
22 PN4500.
23 PN4504 – PN4506; PN4645 – PN4658.
24 Ibid. at AB-1.
25 PN691.
26 PN700 – PN702.
27 PN731 – PN740.
28 PN784 – PN802.
29 PN755 – PN771.
30 Statement of CD, 3 August 2018, JAC-1.
31 PN361 – PN364.
32 PN891 – PN893; PN2440 – PN2448.
33 Statement of Ms Mo Mwango Mulenga, 3 August 2018, Annexure MMM14.
34 PN1378 – PN1403.
35 PN1880.
36 PN2028-PN2030.
37 PN1950 – PN1952.
38 PN2074 referring to Statement of Ms Mo Mwango Mulenga, Exhibit R2, Annexure MMM-3 at pg 4.
39 PN2049 – PN2050.
40 PN2101 – PN2112.
41 PN2113.
42 PN2117 – PN2127.
43 Statement of Mr Patrick Morton, 3 August 2018, Annexure PFM-13.
44 Annexure MMM18 to the Statement of Ms Mo Mwango Mulenga.
45 Annexure ALS-2 to the Statement of Ms Alannah Slater, Exhibit R15.
46 Ibid. at Annexure ALS-1.
47 Statement of Mr Patrick Morton, Exhibit R3.
48 Ibid at PFM-1 and PFM-2.
49 Ibid at PFM-3 to PFM-13.
50 Statement of Mr Patrick Morton, 3 August 2018, [37].
51 PN2440 – PN2448.
52 PN2503 – PN2519.
53 PN2628, PN2633, PN2660-PN2667.
54 PN2678.
55 PN2685-PN2688.
56 PN2697-PN2700.
57 Statement of Ms Alina Bidewell, Exhibit R16.
58 Statement of Ms Alina Bidewell, 3 August 2018, [35] – [36].
59 PN5122 – PN5126.
60 Statement of Ms Alina Bidewell, 3 August 2018, [48].
61 PN4932.
62 PN4977-PN4978.
63 PN5096 – PN5125.
64 PN5086 - PN5095.
65 PN5154 - PN5155.
66 PN5128.
67 PN5282 – PN5285.
68 PN5094.
69 PN5140 – PN5155.
70 PN5203 – PN5204; PN5346.
71 Statement of IJ, Exhibit R6.
72 PN3085.
73 PN3122-PN3123.
74 Statement of Ms Leanne van Eykelenborg, Exhibit R7.
75 PN3172-PN3174.
76 PN3249-PN3252.
77 PN3214-PN3215.
78 PN3212.
79 PN3255 – PN3265.
80 Statement of Ms Linda Daniels, Exhibit R4.
81 PN2739 – PN2740.
82 PN2768 – PN2775.
83 PN2895 – PN2903.
84 PN2780-PN2785.
85 PN2739 - PN2740; PN2821.
86 PN2786; PN2798.
87 PN2836 – PN2856.
88 Statement of Mr Anthony Wood, Exhibit R9.
89 PN3585 - PN3605.
90 PN3553.
91 Statement of Ms Trudy Maher, Exhibit R10.
92 PN3672 - PN3673; PN3679.
93 PN3692 - PN3696.
94 PN3739 – PN3765.
95 Statement of GH, Exhibit R11.
96 PN4007-PN4010.
97 PN4033.
98 PN3959 - PN3973.
99 Statement of Ms Desley Channells, Exhibit R13.
100 PN4232-PN4237.
101 PN4260 - PN4271.
102 PN4286-4287.
103 PN4289-4290.
104 Statement of Ms Yueh Ching (Fiona) Lin, Exhibit R12.
105 PN4155 - 4158.
106 PN4126 – PN4135.
107 (1995) 185 CLR 410, [465].
108 Sayer v Melsteel[2011] FWAFB 7498 at [20].
109 PN5426 – PN5456.
110 Annexure MMM3 to the Statement of Ms Mo Mwango Mulenga, Exhibit R2.
111 PN1596 – PN1685.
112 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
113 [2018] FWC 607.
114 [2018] FWC 3761.
115 Streeter v Telstra Corporation [2008] 270 IR 1.
116 PN2907.
117 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
118 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
119 Rail Corporation New South Wales v Vrettos (2008) 176 IR 129.
120 King v Freshmore (Vic) Pty Ltd[2000] AIRC 1019 at [24].
121 [2013] FWCFB 6191.
122 [2018] FWC 607, [43].
123 [2018] FWC 607, [27].
124 [2018] FWC 607, [37], [42].
125 [2018] FWC 607, [42].
126 [2018] FWC 3761, [175] – [181].
127 Print S6824, 7 June 2000, (2000) 98 IR 233.
128 Ibid, [4].
129 P. Annetta v Ansett Australia Ltd Print S2256, 10 January 2000, [24].
130 Ibid, [16].
131 Industrial Relations Act 2016 (QLD) s.95(4)(c)
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