Mr Rana Watson v Australian Municipal Clerical Services Union Queensland Together Branch T/A Together Qld Australian Services Union
[2019] FWC 501
•30 JANUARY 2019
| [2019] FWC 501 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Rana Watson
v
Australian Municipal Clerical Services Union Queensland Together Branch T/A Together Qld Australian Services Union
(U2018/3150)
DEPUTY PRESIDENT ASBURY | BRISBANE, 30 JANUARY 2019 |
Application for an unfair dismissal remedy.
[1] Mr Rana Watson applies under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by the Australian Municipal Clerical Services Union Queensland Together Branch T/A Together Qld Australian Services Union (ASU). Mr Watson was employed by the ASU as an Organiser in the Private Sector Team of the ASU from 23 May 2011 until his dismissal on 7 March 2018.
[2] The reasons given for the dismissal of Mr Watson as set out in a termination letter given to Mr Watson on 7 March 2018 were inability to meet recruitment targets and failure to comply with a lawful and reasonable direction in relation to entering workplaces to hold meetings with members of the ASU. The termination letter also indicated that it had been decided that there was no reasonable prospect Mr Watson would improve his performance to the extent necessary.
[3] Mr Watson asserts that his failure to meet recruitment targets was due to him being allocated challenging work sites and lack of support and training offered to him and that other organisers were also unable to reach targets. In relation to the alleged failure to follow a lawful direction, Mr Watson maintained that he complied with his understanding of the direction. Mr Watson also asserted that even if allegations against him were true, dismissal was not an appropriate punishment and that the Branch Secretary of the Union who determined to dismiss Mr Watson had maintained a personal and political bias against Mr Watson since 2012.
[4] Mr Watson’s application was made within the time required in s.394(2) of the Act. It is not in dispute that Mr Watson is a person protected from unfair dismissal as defined in s.382 of the Act. The ASU is not a small business and the dismissal was not a case of redundancy. The matter was dealt with by way of a hearing.
[5] Both parties sought to be legally represented at the hearing. Permission was granted on the basis that I was satisfied that it would enable the matter to be dealt with more efficiently, no issues of fairness arose and the facts of the matter were of sufficient complexity to warrant the grant of permission. At the hearing Mr Watson was represented by Mr John Shepley of Counsel and the ASU was represented by Mr Brendan Docking of Counsel, instructed by Ms Rachel Smith of Maurice Blackburn Lawyers.
[6] Mr Watson gave evidence on his own behalf. 1 A witness statement was tendered in support of Mr Watson’s application by Ms Julie Bignell, former Branch Secretary for the Central and Southern Queensland Clerical and Administrative Branch of the Australian Municipal, Administrative, Clerical, and Services Union (ASU)2. Evidence was also given at the hearing by Ms Irene Monro and Ms Jo McConnell of the ASU, who were ordered to attend following an application made by Mr Watson.
[7] Evidence for the ASU was given by the following witnesses who were cross examined at the hearing:
• Mr Michael Silvanus Thomas, Director of Industrial Services; 3
• Mr Billy Evans Colless, Organiser; 4
• Mr Alexander Patrick Scott, Branch Secretary of the Queensland Together Branch; 5 and
• Ms Megan Jane Denny, Lead Organiser. 6
[8] I have considered all of the evidence and submissions and summarise below that which is relevant to the issues for determination.
EVIDENCE
Background
[9] In July 2011 an amalgamation between the Queensland Public Sector Union and the ASU Central and Southern Queensland Branch took effect. A full amalgamation at Federal level took place in 2015. Mr Watson and Ms Bignell gave evidence alleging that there were a range of issues in relation to merging employees of the amalgamating entities. Ms Bignell also said that in 2013 she opposed a move by the Branch Secretary Mr Scott to forcibly retrench Mr Watson and another employee who had previously been employed by the ASU. According to Ms Bignell, Mr Scott pressed this issue with her and when she would not agree, another employee was made redundant. Under cross-examination Ms Bignell maintained her position but agreed that the employee concerned volunteered for redundancy. While Ms Bignell held office in the Union until 2015 she did not work in the same office as Mr Watson after August 2014.
[10] Mr Watson was initially employed in a team referred to as the Campaign Team, and moved into an Organiser role within the ASU’s Private Sector team at some point in 2014. Organisers are responsible for the growth and maintenance of union membership in a particular area. Ms Denny gave evidence about the structure of the Private Sector Team. It is sufficient to note that the Team is managed by Mr Thomas as Director and that at the time Mr Watson was dismissed, Ms Denny was the Lead Organiser with responsibility for supervising three organisers: Mr Watson, Mr Colless and Ms Suzi Wharton. Ms Denny also gave evidence to the effect that various sites were allocated to organisers following a planning day at which their views were sought. Two of the areas for which Mr Watson was given responsibility were requested by Mr Watson. Ms Denny said that each Organiser had both challenging sites and great opportunities.
[11] In her oral evidence Ms Denny disputed Mr Watson’s assertion that he had harder sites in which to recruit than the sites allocated to Mr Colless and said that she had allocated sites fairly and in particular those sites were where bargaining was commencing as this was a great opportunity for recruitment.
[12] Ms Denny states that her practice is to hold a team meeting each Tuesday morning. Ms Denny also holds one-on-one meetings with each organiser and in 2017 these took place after the team meetings. At the beginning of each team meeting Ms Denny met with the Organisers to discuss what had occurred the previous week, what would be happening in the coming week and their workload. Organisers prepared plans for each worksite and these were discussed at team meetings and at the one-on-one meetings. Worksites were separated into those where enterprise bargaining was taking place and those where bargaining was not occurring – known as maintenance areas. Organisers were required to visit maintenance areas once every two months and had a checklist to use as a tool. There was also a checklist for Organisers to use at sites where bargaining was taking place. Ms Denny tendered copies of the checklists which were emailed to Organisers on 29 May 2017. 7
[13] Ms Denny said that the primary role of Organisers is recruitment and outlined steps she took to assist organisers to focus on recruitment. These included arranging other areas of the organisation to assist in dealing with existing members including administration staff entering data into excel spread sheets so that Organisers did not have to undertake this task. Ms Denny advocates Organisers using structured conversations as a means of recruiting members and these were practised at team meetings. Ms Denny also said that Mr Watson is an experienced Organiser and that during his time with the campaign team was provided with extensive training including how to undertake structured contact and conversations.
[14] Mr Watson agreed that his primary role as an Organiser is recruitment and that this was critical to the Union. Mr Watson also agreed that a significant part of his role was sustaining structures that build membership in the workplace and to grow and maintain membership in his portfolio area. Mr Watson further agreed that he was subject to direction by Ms Denny in her capacity as Lead Organiser.
Alleged unsatisfactory performance
[15] Mr Watson states that a number of meetings of the Private Sector Team were held in the first few weeks of 2017 and it was agreed at a team meeting of 28 March 2018 that a target of recruiting a specified number of new members to the union each week would be set and that each Organiser would need to recruit a specified number of new members to meet that target. Mr Watson states that this target was aspirational. Mr Watson tendered an email from Ms Denny, Lead Organiser, setting out the target and recording that all of the team “had buy in” to the target. 8 Mr Watson denied that he had suggested the target level. According to Mr Watson on 8 June 2017 at a team meeting the team was told that in order to achieve the target each organiser would be required to have a specified number of conversations with non-members each week and then convert a percentage of those to membership. The conversations were required to be recorded on forms called 123 Contact forms which were required to be completed by close of business each Friday so that they could be entered into that system. An email confirming this requirement was sent to the team (including Mr Watson) by Ms Denny on 8 June 2017 and was tendered by Mr Watson at the hearing.9
[16] Mr Watson states that in May or June 2017 he was allocated a number of worksites, and had no choice in the allocation of those sites and was not involved in establishing the plans and strategies he was directed to utilise for these sites. It is Mr Watson’s evidence that he was instructed by Ms Denny as to how he would organise these worksites, and that he was given no latitude to apply his own knowledge or skill towards delivering on the agreed targets.
[17] Mr Watson states that more pressure was brought to bear on team members to have non-member conversations and to record them in 123 Contact. Mr Watson also states that this became less of a proactive tool and more of a “punitive reporting tool.” Further, Mr Watson states that whilst attempting to meet this requirement it became increasingly difficult to perform the actual role of an organiser as the targets had somehow become an expectation rather than the “aim” that the team had agreed.
[18] Mr Watson states that in order to meet the weekly target for contacts with non-members, he would undertake site visits and telephone potential members that he had identified. Mr Watson further states that due to the nature of these sites, there was a relatively small pool of people to contact so that he was required to make repeat calls to non-members in order to meet target. It is Mr Watson’s evidence that although this caused many potential recruits to become irritated he reported this to his team leader and was instructed to continue with this approach. Mr Watson further states in an outline of argument filed in relation to his application that: “Given that I was not free to follow proper organising techniques and was required to follow the instructions of my Team Leader as to how to organise these worksites I feel that not being able to meet the aspirational targets is not entirely my fault.” In his witness statement Mr Watson asserts that the targets were aspirational and the sites he was allocated were extraordinarily difficult to recruit members in. Mr Watson also maintained that Mr Colless’ assigned workplaces had delegates in place making it easier for Mr Colless to recruit in those workplaces.
[19] In his oral evidence Mr Watson said that that the plan was to record all conversations – including those with management in relation to right of entry and with members and non-members – into 123 Contact. The system could also be used to automate a second response so that Organisers did not have to go back to the office and spend time typing generic emails. Mr Watson agreed that there had always been targets in the Private Sector group but maintained that they were aspirational. Mr Watson also said that the fact that he was unable to meet the targets was not entirely his fault, as he was unable to apply proper organising techniques and was required to follow the instructions of his team lead as to how he would organise his allocated work sites. It is also Mr Watson’s evidence that the worksites he was given to recruit were historically difficult to recruit in, and that these worksites required a more considered approach than the one Mr Watson was directed to carry out. Further, Mr Watson said that there had always been aspirational targets in the Private Sector Team.
[20] Under cross-examination Mr Watson said that he knew how to write scripts to use in discussions with members and had received instructions on how to do this. In response to the proposition that he did not need more training Mr Watson said that there was always room for training. Mr Watson also agreed that he had been provided with training by Ms Denny in relation to how to write scripts.
[21] Mr Watson was shown documents during cross-examination which had been produced in response to an Order issued at his request showing a list of new Union members from 1 July 2017 to 9 March 2018 and specifying the method by which they joined and where relevant the Organiser who recruited them. It was put to Mr Watson that the information produced demonstrated that in the areas for which Mr Colless was responsible there were 178 new members with 74 joining on line and 104 joining by filling in paperwork. Mr Watson also agreed that the same data evidenced that in his areas there had been a total of 38 new members with 17 joining on line and 21 joining by completing a paper form. Mr Watson agreed that nowhere in his response to the show cause letter or in his evidence to the Commission had he provided a comparison between his recruitment figures and those of Mr Colless. In response to the proposition that he had not provided this information because Mr Colless’ success rate was much greater, Mr Watson said that Mr Colless had different work sites and while they may be difficult they were sites with a stronger base and constant Union involvement whereas the sites assigned to him had not been visited for many years.
[22] Mr Watson agreed that he knew from 3 July 2017 that his employment was at risk if he could not adequately recruit and that during the period of the performance management plan he had been placed on he had recruited only four members out of a total of 46 recruited by the whole Private Sector Team. Mr Watson also accepted that the recruitment figures set out in a letter from Mr Scott dated 23 February 2018 in relation to penalty were correct and that:
• Between January and June 2017 he had recruited 3 new members despite having 173 conversations;
• Between 4 July 2017 (when the performance management plan commenced) and the review meeting of 24 November he had recruited 3 or 4 new members;
• From 24 October to 30 November Mr Watson recruited 4 new members; and
• The level of recruitment in his areas for the period from 24 October to 30 November represented 11% of the team’s recruitment despite the number of Organisers in the Team being reduced from 4 to 2.
[23] Mr Watson said that he is not challenging the data but rather the workplaces assigned to him. Mr Watson agreed that some of the workplaces assigned to Mr Colless were also difficult and that some of his workplaces were engaged in enterprise bargaining which is a basis for recruiting members.
[24] Ms Munro’s evidence was that in the areas of Together Queensland for which she has responsibility Organisers do not have a specified number of required contacts or a requirement to convert those contacts to membership. Ms Munro also said that it sounded like a matter that had been determined at a team level and that if she thought it appropriate for the industries that she is responsible for or was directed to do so she would put such a requirement in place. Ms Munro also said that Mr Scott has not historically conducted the Union’s operations by directing how things should be done but has asked for advice from Assistant Secretaries about branch plans and targets. Ms Munro had responsibility for the private sector group but this was removed from her in or around 2011. Ms Munro also gave evidence about conducting meetings of members outside of the workplace depending on their wishes and the attitude of the employer to Union officers entering and walking around their premises. Ms Munro said that there is no policy at an overarching level of the Union about having meetings in workplaces rather than at external locations.
[25] Ms Munro tendered an email exchange with Mr Scott in March 2018 in which Ms Munro expressed concern about the cost of litigation in relation to former employees of the Union including Mr Watson. In that email Ms Munro states that she does not know the details of the individual cases but is concerned about the bias allegations, reputational risk for the Union and the impact of further legal proceedings. Mr Scott’s response was that he would continue to treat staff fairly and without bias but that avoiding potential litigation from ex-staff is not a justifiable reason for appropriately managing the performance or non-performance of staff. Mr Scott’s email also states that his reasons for terminating Mr Watson are his continuing inability to recruit along with failure to comply with a lawful and reasonable direction. In a later email in the chain Mr Scott informs Ms Munro that he will discuss the option of filling the Private Sector position by transferring another staff member. Other matters raised by Ms Munro in her email, and which were attempted to be addressed in her evidence involve management issues within the Union and are not relevant to the matters in dispute in the present case. Accordingly I have not had regard to those matters.
[26] Under cross-examination Ms Munro agreed that as part of the process of developing a yearly Branch Plan the Secretary would ask for each of the Teams to identify numbers of members they planned to recruit. Team leaders are also asked to provide the Secretary with details of areas they are planning to engage in for the development of the Branch Plan. This includes a target for membership growth. Ms Munro agreed that she left the Branch at or around the time that Mr Watson started employment and went to the Northern Territory. Ms Munro knew Mr Watson from his role as a Delegate in another organisation.
[27] Ms Denny’s evidence was that early in 2017 when she took over as Lead Organiser, Mr Colless, Ms Wharton and Mr Watson all proposed using the 123 Contact program to record and track who they had contact with. Ms Denny proposed the program to Mr Thomas who agreed that it was suitable and Mr Scott approved the purchase of the program. In early 2017 Mr Thomas informed Ms Denny that each team had come up with a recruitment benchmark figure for the year. Ms Denny raised this at a team meeting on 28 March 2017. Ms Denny’s evidence is that Mr Watson proposed the target for the team and that he said it was achievable and that other Organisers agreed. Ms Denny emailed Mr Thomas after that meeting and informed him of the target her team had agreed and then confirmed that target by email to Organisers in her team. The target number of conversations per week was also agreed and set at a later team meeting. Ms Denny also tendered the email to her team dated 20 April in which the requirement for information to be entered into 123 Contact was set out and that right of entry should be exercised for two sites both of which had been allocated to Mr Watson.
[28] Ms Denny said that she told Organisers that if they could not have the required number of conversations with non-members each week, they were required to come and see her to discuss the matter. Ms Denny said that the focus was always to achieve the benchmark in terms of new members and conversations and tendered an email to team members dated 8 June 2017 confirming this. That email sets out the weekly target for non-member conversations and that the aim is to convert a certain number of these each week in order for agreed targets to be reached. The email also states that Organisers are to ensure that 123 Contact forms are completed by close of business each Friday and that Organisers should inform her if they are unable to meet these requirements.
[29] Ms Denny also gave evidence about the week of 5 June 2018. Ms Denney said that in that week Mr Colless’ 123 Contact data did not reflect the number of non-member contacts he had and that Mr Colless met the benchmark for conversations but it was not able to be entered into the 123 Contact system. The data from that week referred to by Ms Denny shows that Mr Colless exceeded the recruitment benchmark by more than double, Ms Wharton achieved a result whereby she missed the benchmark by one member and Mr Watson recruited no members.
[30] Further, Ms Denny gave evidence about assistance she provided to Mr Watson by allocating two sites to him where there were recruitment opportunities. Enterprise bargaining was commencing at one site and the other had been purchased by an interstate company which was paying higher rates to its workers outside Queensland. Ms Denny had a member of the Union’s administration team obtain information about the workplaces such as sites and staff numbers so that Mr Watson had maximum opportunity to go to the workplace and engage with employees rather than undertake information gathering. Ms Denny forwarded this information to Mr Watson on also on 13 June 2017 and informed him that it may be the right time to exercise a right of entry to the workplace and to contact the Company to set up times to talk to staff.
[31] Ms Denny also said that she reallocated a site from Mr Colless to Mr Watson in 2017 and that Mr Colless had begun a program of organising at that site in relation to non-payment of an allowance that employees should have been paid under their enterprise agreement. Ms Denny said that she saw these sites as providing good opportunities for Mr Watson to recruit new members which he did not take advantage of. Ms Denny also said that a Union delegate at this site later submitted a form seeking assistance on an individual basis in relation to the non-payment of the allowance and Mr Watson stated that he advised the Delegate to take this action contrary to the approach of dealing with this issue collectively and using it as a basis to recruit members. Further, Ms Denny said that since Mr Watson’s dismissal Mr Colless has recruited three new members at that site around the issue of the non-payment of the allowance.
[32] Mr Thomas confirmed that the number one role of organisers is recruitment and that they do not deal with individual grievances or disputes. Another important role of Organisers is the development of delegates. Mr Thomas also confirmed Ms Denny’s evidence in relation to team meetings and the adoption of the benchmarks for member conversations and recruitment. Mr Thomas stated that he stressed the importance of having conversations and of recording them. Mr Thomas also confirmed that Mr Colless, Ms Wharton and Mr Watson had sought that the Union purchase the 123 Contact program as a recording mechanism and that Mr Scott had approved the purchase of that program.
[33] Following the meeting of 28 March 2017, Mr Thomas said he discussed with the team at subsequent meetings measures of performance versus measures of effect, and that it was not known for certain what an appropriate conversion in the private sector should be, that is the number of successful join conversations (or recruits) as a proportion of overall conversations with non-members. 10 Mr Thomas states that the team agreed that each organiser was to have a certain number of conversations with non-members each week and that this should achieve a conversion rate of a certain number of members each week. Mr Thomas said that at the team meetings he stressed the importance of having conversations to recruit, as well as the importance of recording the conversations in 123 Contact as a measure of performance.
[34] At a meeting on 6 June 2017, Mr Thomas states that he further reiterated the requirement to have the agreed number of non-member conversations a week, and advised the Private Sector Team that if any Organiser could not have those conversations for any reason they were to advise Ms Denny. Mr Thomas was copied into an email from Ms Denny sent to the Private Sector Team on 8 June 2017, that reiterated the requirement with respect to non-member conversations with the aim of conversion to new memberships. Mr Thomas said that after the email was sent Ms Denny advised him that Mr Watson and another Organiser had not followed the direction to have the agreed number of non-member conversations. Mr Thomas asked Ms Denny to give Mr Watson an opportunity to explain why he had not reached that target, and to escalate the issue to him if needed.
[35] Following her exchange with Mr Thomas, Ms Denny emailed Mr Watson on 13 June 2017 referring to a team meeting earlier that day, and stating that she had told Mr Watson of her concerns that despite the direction given to him by her and Mr Thomas regarding the non-member calls and previous discussions on this point, Mr Watson had failed to meet that target. Ms Denny advised Mr Watson she would need to present information to Mr Thomas to consider whether this was grounds for a formal process to be initiated. 11
[36] Mr Watson responded to Ms Denny’s email in relation to his failure to undertake non-member calls in an email dated 20 June 2017, and explained that he had mistakenly believed he was making the required number of non-member calls, because he had inadvertently tallied calls he made to current members with calls made to non-members in the 123 Contact system. 12 Ms Denny then emailed Mr Thomas outlining her concerns with Mr Watson’s performance, and his response of 20 June 2017. In particular Ms Denny informed Mr Thomas that the reasons given in Mr Watson’s email in relation to his failure to make the calls did not match a reason he had given in a conversation with Ms Denny during which Mr Watson stated that he had counted calls to management to book appointments to have discussions with staff as non-member calls.
[37] Mr Thomas reviewed the response, and advised Mr Watson that a meeting would be held to discuss areas of concern in relation to failure to perform the duties of his position or failing to perform the duties to the standard required, and failing to follow the direction of a supervisor of manager. The Union’s policy in relation to Managing Performance was appended to Mr Thomas’ email and defines poor performance to include the matters raised in Mr Thomas’ email to Mr Watson. The policy involves a number of steps:
• Identify and analyse the problem;
• Meet with the employee to discuss the problem;
• Jointly devise a solution;
• Include time frames for improvement;
• Monitor performance.
[38] The policy also provides for a grievance or appeals process. Mr Thomas stated in his email to Mr Watson that he had not formed a final opinion on what action, if any, to take.
[39] On 4 July 2017, Mr Watson attended a meeting with Ms Denny and Mr Thomas, regarding concerns Ms Denny and Mr Thomas had with Mr Watson’s performance. Mr Thomas tendered his notes of the meeting which indicate that Mr Watson was offered a support person and declined this offer. The notes also indicate that the importance of having the required number of non-member conversations each week and capturing data in 123 Contact system was discussed along with the fact that Mr Watson had recruited three new members for a total of 173 conversations recorded which was a ratio well below the benchmark.
[40] The notes further record that Mr Watson agreed that he had been involved in discussions and team meetings in relation to the required number of non-member conversations and the benchmark for recruitment as well as the development of the use of 123 Contact. The notes also record that Mr Watson stated that he is not technically advanced and had miscounted causing him to believe he had met the non-member conversations target and that Mr Watson has particularly challenging workplaces with “right of entry issues” where Mr Watson got stuck in meeting rooms where employees did not wish to have discussions.
[41] Mr Thomas states that he made a decision during the meeting to place Mr Watson on a performance management plan due to his failure to comply with directions and underperformance in the achievement of agreed recruitment targets. Mr Watson was provided with a copy of the performance management plan by email on 3 July 2017 and was also emailed a copy of Mr Thomas’ notes of the meeting on 11 July 2017. It is Mr Thomas’ evidence that he went through the plan with Mr Watson and the measures, which Mr Watson agreed to, and it was communicated to Mr Watson at the meeting that his employment was at risk unless his performance improved. The performance plan was implemented pursuant to the process outlined with the Together Policy. The measures contained in the performance plan were as follows:
“(a) Undertake [number] one-on-one non-member recruitment conversations per week in accordance with the plan agreed with your supervisor, Megan Denny.
(b) Complete the tasks that are set for you by Megan in the timeframe set.
(c) Where completion of a task will not be possible, you are to refer back to Megan as soon as possible to discuss alternative strategies or timeframes.
(d) Where you are unsure about tasks given seek further direction in a timely manner.
(e) Where you believe you do not have the skills to complete the task you are to seek assistance/training as soon as possible.
(f) Discuss performance and new tasking in weekly meetings with Megan.
(g) Convert conversations to recruitment at an acceptable rate (to be discussed during weekly team meetings and monthly reviews – benchmark target is [number] per week.” 13
[42] The performance plan also stated that failure to meet and maintain the expected levels of performance may result in further action including disciplinary action. The plan was originally set for a three month period. As part of the plan Ms Denny held weekly meetings to review progress and provide feedback to Mr Watson. Those meetings were held on 29 August, 5 September, 12 September, 17 October. 24 October, 31 October, 14 November and 21 November 2017.
[43] A bundle of emails from Ms Denny to Mr Watson was tendered by Together Queensland documenting the meetings and their outcomes. Those emails indicate that at each meeting Ms Denny discussed issues or concerns Mr Watson had about various sites where he was attempting to recruit members and that Ms Denny discussed these issues with Mr Watson and formulated various tasks for him to undertake which encapsulated her suggestions to assist him to recruit. The emails also record that Ms Denny emphasised the importance of Mr Watson having the required number of conversations and achieving the recruitment aim. The emails also indicate that on a number of occasions Ms Denny made suggestions to Mr Watson about the manner in which he was conversing with non-members and in particular emphasising that he should not refer to the Union as a third party and that Mr Watson should refer to the training materials he had received in relation to conducting structured conversations. The emails also indicate a number of occasions where Ms Denny encourages or praises Mr Watson for completing certain tasks.
[44] Mr Watson took a period of annual leave from 17 July 2017 to 25 August 2017, and then took personal leave from 25 September 2017 to 13 October 2017. The performance plan was extended to 29 November 2017 to allow for Mr Watson’s leave. While Mr Watson was on leave, the ASU arranged for other ASU organisers to visit the sites allocated to Mr Watson in order to maintain a presence. According to Mr Thomas some seven new members joined the Union in the period Mr Watson was on leave.
[45] As part of the performance plan, Mr Thomas attended monthly meetings with Ms Denny and Mr Watson on 24 October 2017 and 30 November 2017. Mr Thomas referred to notes he had made at the meeting of 24 October 2017 recording that the following matters were discussed:
• The key area of concern was recruiting, and that this was a measure in the performance plan (convert conversations to recruitment at an acceptable rate) at the benchmark rate;
• Mr Watson had only recruited 3 or 4 members over the period of the performance plan at that stage (a period of 7 or 8 weeks);
• Mr Watson acknowledged the importance of recruiting;
• Mr Watson did not dispute that he had only recruited 3 or 4 members over the period of the performance plan;
• Mr Watson raised what he perceived as barriers to recruitment in his areas of responsibility, being that that those areas are generally difficult to recruit in, and his ability to recruit in a certain site had been compromised due to other organisers visiting those sites while he was on leave having “burnt the ground”;
• Mr Thomas noted that other organisers had recruited in Mr Watson’s areas while he was on leave; and
• The performance plan was extended to 29 November, because 24 October 2017 was the first monthly meeting. 14
[46] As a result of the meeting on 24 October 2017 it was agreed that Ms Denny would accompany Mr Watson to worksites and provide on the job mentoring. On 30 November 2017 Mr Watson met with Mr Thomas and Ms Denny at the conclusion of his performance management plan meeting. Mr Thomas stated at that meeting that although Mr Watson was meeting the majority of the measures of performance required under the plan, Mr Watson was not meeting the target for recruitment despite undertaking the required number of conversations with non-members each week. Mr Thomas states that Mr Watson noted feedback from Ms Denny that he needed to improve structured conversations and said that he would be happy to undertake further training in this regard. 15 Mr Thomas said that while Mr Watson’s success in recruiting members had improved slightly, this had not been to the extent necessary to achieve a reasonable conversion ratio or to meet the agreed target.
[47] The data gathered by Mr Thomas for the meeting on 30 November 2017 showed that in a period of four weeks and four days Mr Watson had 127 conversations with non-members and recruited four members. In Mr Watson’s areas a total of five persons had joined the Union including the four recruited from conversations had by Mr Watson. Mr Thomas’ assessment at the conclusion of the meeting was that Mr Watson had not achieved the level of improvement required in the key area of recruitment.
[48] On 15 December 2017, Mr Thomas sent Mr Watson an email attaching his notes of the meeting on 24 November and a document recording the finalisation of the performance plan. The document records that:
• Mr Watson had stated in the final performance review meeting that he may require more training particularly in the area of structured conversations based on debriefs provided by Ms Denny after visiting sites with Mr Watson;
• Following Mr Watson identifying barriers to recruitment at the review meeting on 24 October Ms Denny had accompanied Mr Watson on visits to sites and provided on the spot and written debriefs and had identified that Mr Watson was not adhering to the structured conversation process;
• While there had been a slight improvement in recruitment this had not been to the extent necessary to achieve a reasonable conversion ratio or the agreed targets;
• While the majority of agreed performance measures had been met the key measure of recruitment remained a fundamental performance issue and did not meet the required standard; and
• As Mr Watson’s performance had not improved to the required standard that action may be taken under the Union’s disciplinary policy. 16
[49] The email accompanying these documents also stated that Mr Thomas was intending to send them to Mr Scott and requested Mr Watson to provide anything he would like included for Mr Scott’s consideration. In an analysis of Mr Watson’s recruitment levels Mr Thomas said that in the 12 week period of the performance plan Mr Watson recruited 8 members which was well below the target. Mr Thomas also said that while Ms Wharton and Mr Colless were also not hitting the target they were recruiting at a reasonable rate. Mr Thomas produced a spread sheet showing that Mr Colless recruited 141 new members in 2017 which included periods he was on leave. Mr Thomas also produced a spread sheet indicating that Mr Watson recruited a total of 17 members in 2017. A spreadsheet in relation to Ms Wharton showed that she recruited less members than Mr Colless but more than Mr Watson.
[50] In his oral evidence Mr Thomas maintained that each Organiser in the Private Sector Team had a mix of hard and easy sites to recruit in and that Mr Watson had some sites which should have been easy including one where there had been non-payment of an allowance in which Mr Colless had recruited 3 or 4 members before it was given to Mr Watson and a number of sites where enterprise bargaining was due to commence. Mr Watson had also been given a site where the employer was paying less to workers in Queensland than it was paying to workers in New South Wales. When other Organisers went to that site they recruited new members. Mr Thomas also maintained that allocation of sites was done in a consultative manner and all team members were involved. Mr Thomas also disputed Mr Watson’s evidence that workplaces in which Mr Colless was organising had stronger delegate structures and gave evidence of successful recruiting by Mr Colless in that particular workplace in circumstances where there was a delegate at head office but not at the site where Mr Colless was organising.
[51] Under cross-examination Mr Thomas agreed that he does not have experience as an Organiser in the private sector but said that he had run a national campaign to recruit hotel staff in the private sector. Mr Thomas also agreed that there is no evidence base for the proposition that a certain number of conversions with non-members will result in achieving a certain number of conversions to membership. Mr Thomas said that the target ratio was developed in discussion with the Team and that it was intended to test it over a period of time. In some areas it had turned out to be right and in some areas it had not. In relation to his evidence about new members joining the Union using paper forms Mr Thomas maintained that the paper forms would overwhelmingly have come from Organisers because it would be unusual for new members to download a form and manually fill it out and fax or post it to the Union.
[52] Mr Thomas was extensively cross-examined about the methodology he had adopted to count conversations and conversions to membership. Mr Thomas maintained that his count was as accurate as possible and that any discrepancies related to timing of various reports. Mr Thomas also maintained that the conversion rate was a benchmark that was aspirational and the issue with Mr Watson’s performance was not that he did not achieve the benchmark but that his recruitment rate was too low.
Alleged Failure to comply with a lawful and reasonable direction
[53] On 19 December 2017 Mr Thomas met with Ms Denny and was informed by her that she had a concern that Mr Watson had not complied with a written direction to exercise right of entry under the Act for the purpose of holding weekly meetings at the premises of an employer engaged in enterprise bargaining. Ms Denny informed Mr Thomas that this non-compliance had occurred over a period of four weeks since 22 November 2017.
[54] Ms Denny states that on numerous occasions throughout the year she had informed her team that while being innovative about how they met with members, they needed to be visible in the workplace. Ms Denny also states that she informed her team that if they thought that meeting under a tree in the park is effective then by all means they should do so, but she wanted to see proof that this was effective and still wanted Organisers to put in right of entry notices and visit workplaces. Ms Denny tendered an email dated 20 April 2017 where she asked for right of entry to be exercised generally and in particular referred to two sites which had been allocated to Mr Watson. In relation to right of entry, Ms Denny said in her oral evidence that it is important as a means of developing rapport with management and workers and getting workers used to the process of the Union being active in their workplace and not being a third party.
[55] Ms Denny states that she emailed Mr Watson on 21 November 2018 directing him to hold a meeting at the particular workplace in the lunchroom or other suitable room. Ms Denny states she gave this direction as Mr Watson had been conducting meetings in carparks or nearby parks, and not in the workplace. Ms Denny’s email of 21 November 2017 states “… Keep visiting this site each week – start tasking each member to talk to a staff member/ encourage a staff member to come and speak with you. In a day conduct a visit/ meeting in the local workplace (if not a suitable room then push for the lunchroom – you can use the email forwarded to you the other week about this), plus the meeting at the park if workers think this is of benefit.” 17
[56] The earlier email referred to was an email exchange between Mr Colless and an employer representative in which Mr Colless set out s. 492 of the Act and informed the employer that he did not agree with the room offered to him by the employer for the purposes of conducting a meeting and that he was exercising his right to hold a meeting in the lunch room where employees ordinarily take their meals or breaks. 18 It was Ms Denny’s evidence that this email was given to other members of the Team – including Mr Watson – to use as a template for insisting on the right to use lunchrooms for the purposes of conducting meetings.
[57] Following a one on one meeting with Mr Watson on 19 December 2017, Ms Denny sent an email to Mr Watson asking him to respond as to why he had not complied with her direction of 21 November 2017, which reads as follows:
“Based on your response to my query as to the whereabouts of the associated Right of Entry notices and your statement that you had not entered the workplace because “there were no rooms available” it would appear that you have not complied with that direction and have not submitted any ROE notices to access the worksite as directed.
To ensure I am clear could you provide me a response in writing to the following questions:
1. What steps (if any) did you take to comply with the direction given to you on 22/11 as set out above?
2. How did you ascertain that there were no rooms available to meet with employees?
3. Why did you not then seek to access the lunch room to meet with employees as directed?”
[58] Mr Watson responded in an email sent to Ms Denny on 22 December 2017, which read as follows:
“In response I would like to note that I did not say that there were no rooms available in our meeting. I did state that I had been getting good turnout in the park and that members had identified that as being the best location and that Tuesday lunchtimes were the best times. My visits were based on member feedback and their willingness to encourage their workmates to come along.
I did say that I had done an ROE for the visit on the 20 December and that I had been told that the Conference room was not available for this visit and that I would be put into the […] Room.
The results from my meeting of members and potential members on Dec 5 resulted in the delegate and the members going out and recruiting 3 new members. And we received a further instalment of the petition with names and contact details included.
Unfortunately the result for the meeting onDec 20 was that no staff attended. This may be because of the time of year or the location of the room.
In answer to your questions:
1. What steps (if any) did you take to comply with the direction given to you on 22/11 as set out above?
a. Undertook a meeting with members and potential members on November 28 between 11:30am and 1:30pm
b. Undertook a meeting with members and potential members on December 5 between 11:00am and 1:00pm
c. Undertook a meeting with members and potential members on December· 20 between11:00am and 1:00pm
2. How did you ascertain that there were no rooms available to meet with employees?
a. I did not seek a room on the 28 November or the 5 December as members had advised that it was better to meet in the park at lunch time. These meetings averaged 8 to 10 attendees with 2 to 3 potential members each.
b. For the visit on the 20 December I put in an ROE (sent Mon 18 Dec) and was placed in the […] Room. This meeting saw no attendees despite my placing signage around the outside of the room that I was in.
c. To get turnout I would send a personalised txt to each member encouraging them to come along and to bring their colleagues. Whilst in the site on 20 December I called a number of people who had signed the petition but was not successful in recruiting them or getting them to attend the room.
3. Why did you not then seek to access the lunch room to meet with employees as directed?
a. I did not seek the lunch room as a room was provided.”
[59] Under cross-examination Mr Watson said that his understanding of the legislation in relation to right of entry for conducting a meeting in a workplace is that the employer has a choice of whether to put him in a meeting room or a lunch room and that if he is put in a room that is not suitable he would come back to the office and raise the issue with the Lead Organiser who would deal with the matter. 19 Later Mr Watson conceded that he knew that he had the right to conduct interviews or hold discussions in a room where employees ordinarily took their meals and that he could have “stood and argued the toss” with an employer who did not give him access to a room in which employees ordinarily take their meals.20 Mr Watson then said that he did not know that he could insist on using a lunchroom and that his understanding is that if an employer provides a room for him to hold a meeting the employer has met its obligations with respect to right of entry.21
[60] Mr Watson also said under cross-examination that he was required to follow Ms Denny’s direction in relation to right of entry and that it was not up to him to unilaterally decide that he would meet members under a tree or in a carpark. 22 Mr Watson also said that he recalled a conversation with Mr Colless about institutionalising the Union in workplaces by conducting meetings within workplaces and that being outside the workplace was giving a message to employees that the Union is a third party to the workplace. Mr Watson agreed that Mr Colless was going into certain workplaces and having meetings in lunch rooms. In response to the proposition that Mr Colless had a discussion with Mr Watson in April 2017 in relation to his failure to use right of entry to have meetings in lunch rooms of a particular employer, Mr Watson said it was not a failure because he had not attempted to have meetings in lunch rooms because he was getting exposure to members by catching them in carparks.
[61] In relation to Ms Denny’s email of 20 April 2017 with respect to right of entry, the proposition was put to Mr Watson that he had been told unequivocally to exercise right of entry at two workplaces for which he was responsible and in response Mr Watson said: “it would appear so”. Mr Watson also conceded that it was a clear instruction which he had not followed. In response to the further proposition that he just chose not to comply with a lawful instruction Mr Watson said: “You could construe it that way.” Mr Watson agreed that Mr Colless had exercised a right of entry at one of these sites because he was going to visit another nearby site. Mr Watson also said that he followed the instruction for one of the workplaces but was unable to do so for the other. When asked for details of how many times he exercised right of entry for that employer Mr Watson was unable to provide information but said that he had also met with members outside that workplace or at the gates.
[62] Mr Watson agreed that he received the email from Ms Denny attaching Mr Colless’ emails about right of entry and how to insist on holding meetings in meal rooms or rooms where employees have breaks, before he was given the direction to undertake a right of entry at the premises of the particular employer which had led to the second allegation. Notwithstanding this Mr Watson maintained that he understood Ms Denny’s instruction to be that he should visit the particular employer and not that he should exercise a right under s. 492 of the Act to conduct a meeting in meal rooms or rooms where employees took their breaks. Mr Watson also maintained that he believed that Ms Denny’s email was instructing him to enter the premises of the employer or to continue to have meetings in the park where required. In this regard, Mr Watson insisted that the use of the word “plus” in Ms Denny’s emailed instruction of 21 November 2018 should be read as “or” and that it indicated that he could do both and that he ultimately did exercise a right of entry. According to Mr Watson, the right of entry took a little longer because he was so focused on trying to get in front of members so that he could meet the recruitment target. Later Mr Watson accepted that he had understood that he had a right under s. 492 of the Act to insist on using a meal room for a meeting and that he had not complied with Ms Denny’s direction in this regard in any of the three weeks from 31 October to 21 November 2017. 23
[63] In response to Mr Watson’s evidence to the effect that he did not understand the provisions of the Act in relation to exercising right of entry, Together Queensland sought to tender the contents of a training course attended by Mr Watson in relation to right of entry. Counsel for Mr Watson did not object to the tender and conceded that Mr Watson had attended the training and said that the contents of the training course as set out in the documentation spoke for itself. Counsel for Mr Watson was offered an opportunity to adduce further evidence from Mr Watson in relation to this matter and declined to do so. 24
[64] The documentation indicates that the training was entitled “Right of Entry Under the Fair Work Act ASU National Office Training Program”. The training material in relation to rooms in which meetings may be held deals with previous provisions regarding reasonableness of the room provided by an employer and the amendments which took effect on 1 January 2014 which provide that in the event of disagreement between a permit holder and an employer in relation to the room in which meetings may be held, the permit holder may hold discussions in any room or area that has been provided by the employer for employees to take their meals or breaks. Counsel for Together Queensland also tendered a declaration made by Mr Watson on 19 April 2016 that he had received appropriate training about the rights and responsibilities of a permit holder. 25
[65] Mr Colless gave evidence about a number of discussions he held with Mr Watson during which he emphasised the importance of legitimising the Union’s presence in worksites and informed Mr Watson that he was concerned that Mr Watson’s approach was “third partying” the Union. Mr Colless also said that he spoke to Mr Watson about the importance of accessing meal rooms. Further Mr Colless said that after Mr Watson’s dismissal he went in to the workplace where Mr Watson had claimed that he was not permitted to go into meal rooms, and had been granted access to meal rooms and kitchenettes where employees were taking their meals without objection by the employer’s human resources manager. Mr Colless said that this surprised him given that Mr Watson had claimed that he had been refused such access. There was also evidence of a number of right of entry notices for that workplace issued in February 2018 which had been co-ordinated by Mr Colless.
[66] Mr Watson agreed that Ms Denny and Mr Thomas had provided him with information in relation to right of entry and accepted that as Ms Denny’s subordinate he was required to follow her instructions. Mr Watson also agreed that it was not for him to decide to take a different approach if Ms Denny gave an instruction or direction.
Decision to dismiss Mr Watson
[67] On 21 December 2017, Mr Thomas sent a brief to Mr Scott which described the outcome of Mr Watson’s performance improvement plan, and sought from Mr Scott a decision as to what action should be taken under either the ASU’s Managing Performance policy or its Discipline Policy. The brief states that Mr Watson had achieved the majority of the agreed measures of performance under the plan, Mr Watson had failed to achieve the recruitment target. The brief informed Mr Scott that the issue was identified to Mr Watson at the meeting on 24 October 2017 as a key area of concern, and as a result Ms Denny had accompanied Mr Watson to sites to provide mentoring and on the job training, but this only resulted in a slight improvement to Mr Watson’s recruitment achievements from the date of that meeting to the conclusion of the plan.
[68] The brief contained a table of data showing Mr Watson’s recruitment activities from 24 October to 30 November 2017, and that Mr Watson had only recruited five new members in that period, being four weeks and four days. The brief concluded by saying that a decision was therefore required as to whether to continue to manage Mr Watson’s performance under the Managing Performance Policy or whether action should be taken under the Discipline Policy, and if the latter, the nature of that action.
[69] Mr Thomas sent a further brief to Mr Scott on 2 January 2018. That brief reiterated the matters raised in the first brief and in addition set out the failure of Mr Watson to follow Ms Denny’s direction that he conduct workplace meetings at a particular site. The brief states that Mr Watson was given the direction on 21 November 2017 verbally and subsequently in writing that he visit the site each week and exercise a right of entry and if a suitable room was not provided by the employer for a meeting that Mr Watson should insist on using the lunch room. The brief went on to state that Mr Watson had not complied with this direction in the week in which it was given or in the weeks of 27 November, 4 December and 11 December and that Ms Denny had not discovered the non-compliance until 19 December 2017 when she requested copies of his right of entry notices. Mr Watson complied with the Direction on 20 December after the matter was raised on 19 December 2017. Mr Thomas stated in the briefing note that Mr Watson’s failure to comply with directions was an issue that led to him being placed on a performance plan initially and that the further failure was a significant concern.
[70] Mr Scott’s evidence is that he did not initiate and or make the decision to performance manage Mr Watson. After reading the briefs, Mr Scott decided to initiate disciplinary action pursuant to the Union’s policy on the basis that he was satisfied that Mr Watson had not met the requirements for the performance plan and had failed to comply with the direction in relation to exercising right of entry at a particular workplace. Mr Scott also said that his primary concern was Mr Watson’s low recruitment rate and the low conversion rate which had only shown slight improvement over the life of the performance plan. Mr Scott requested that Mr Thomas draft correspondence to Mr Watson requesting his response to allegations that he did not meet the requirements of the performance plan and that he failed to comply with a lawful and reasonable direction in relation to right of entry. On 10 January 2018 Mr Scott sent an email to Mr Watson appending the letter setting out these allegations and requesting a response from Mr Watson to the allegations within 14 calendar days. The allegations letter is extremely detailed and sets out the allegations fully. Also appended to the letter were a number of documents: the decision briefs prepared by Mr Thomas; the performance plan; meeting notes from the initial performance meeting and the meetings between Mr Watson and Ms Denny; meeting notes of meetings between Ms Denny, Mr Thomas and Mr Watson; and the finalisation of performance plan document emailed to Mr Watson on 15 December.
[71] The letter also set out the terms of the Code of Conduct that Mr Watson was alleged to have breached and informed him of a range of possible disciplinary action if the allegations were substantiated including:
• Reduction of classification;
• Withheld increment;
• Transfer to another position/team;
• Managerial guidance;
• Written warnings; and
• Termination of employment.
[72] Mr Watson sought and was granted a number of extensions for his response to the allegations and was provided with a week of special leave with pay. On 2 February 2018 Mr Watson sent correspondence to Mr Scott seeking that Mr Scott recuse himself from the show cause process on the basis of alleged bias. Mr Scott referred in his evidence to the grounds on which Mr Watson sought his exclusion and stated that an incident in 2012 about which he had held a discussion with Mr Watson did not result in a warning being issued to him and Mr Watson continued in employment with the Union after that time. Mr Scott also said that in 2013 the Union had to reduce staff by approximately one quarter and Mr Watson was one of a number of staff members being considered for redundancy. Mr Scott said that these matters played no part in his decision to dismiss Mr Watson. Mr Scott also denied allegations made by Ms Bignell that he had made adverse comments about Mr Watson and Ms Denny in 2013.
[73] Consistent with the collective agreement applying to staff of Together Queensland, Mr Watson’s request that Mr Scott recuse himself from the show cause process was referred to an independent mediator – a member of the Queensland Industrial Relations Commission. Mr Scott said that he had a discussion with The Services Union about representing Mr Watson in this process for the purpose of assuring the Union that such representation would not affect its relationship with Together Queensland and requesting that the decision about representation be made quickly to allow the matter to progress. The outcome of the mediation – issued on 16 February 2018 – was a finding by the mediator that: “… the matters relied on to establish the allegations of apprehended bias were of a kind that were dated, not contemporaneous and on their own unlikely to convince a reasonable person to recuse themselves as requested.
[74] Mr Watson’s response to the show cause letter was provided on 19 February 2018 and in summary contained the following assertions:
• The recruitment target is harsh and unfair based on the nature of the workplaces allocated to Mr Watson and the traditionally low take up by workers of Union membership in those areas;
• The KPI was unattainable and unreasonable and unrealistic and no other organiser on those sites has ever been able to achieve such a target;
• The sites allocated to Mr Watson have never responded to “Cookie Cutter organising strategies and require a more flexible and open-minded approach to successfully engage with potential members and members;
• The instruction to visit the particular work site was given on Tuesday 21 November 2017 and when Mr Watson consulted members by phone on Wednesday 22 November they advised that the best day of the week for a visit was Tuesday;
• Thereafter, meetings were held in a park or at a location near the workplace on 28 November and 4 December 2017;
• There was no visit in the week commencing 11 December because Mr Watson was assisting with a task at the request of Mr Thomas by providing support to another part of the Union (an email attached to the response indicates that Mr Watson did this between 8.30 am and 10.00 am on 11, 13 and 15 December 2017);
• A meeting in the workplace was held on 20 December and Mr Watson was placed in a particular room and no one attended despite his text messages and phone calls prior to the visit;
[75] Mr Watson also asserted in his response that he was not directed to conduct a formal right of entry each week and he visited the site in the manner preferred by members. Mr Watson also stated: “I then relied on a formal right of entry notice. As members had suggested would happen, however that was not successful. I was not aware of any reason for the room to be unsuitable before attending and the lack of success was not a function of the room itself but members’ preferences to meet outside the building.”
[76] Mr Scott said that he considered Mr Watson’s response and all of the material available to him and determined that the allegations were substantiated on the balance of probabilities. With respect to the performance plan Mr Scott concluded that Mr Watson had not met the requirements and with respect to the direction in relation to right of entry, had not followed the direction. Mr Scott was considering termination of Mr Watson’s employment based on the seriousness of the issues regarding his conduct and performance and his apparent non-acceptance of the seriousness of these matters. In particular Mr Watson’s response did not address the fact that recruitment is the primary role of Organisers and in relation to the right of entry Mr Watson’s response went towards disputing the facts rather than accepting responsibility. Mr Scott considered other disciplinary outcomes but determined that they were not appropriate. Mr Scott then requested that Mr Thomas draft a further letter to Mr Watson advising that the allegations had been substantiated and asking him to show cause as to why his employment should not be terminated. That correspondence was drafted by Mr Thomas and sent by Mr Scott on 23 February 2018.
[77] Mr Watson responded on 2 March 2018. In his response Mr Watson contested the findings and referred to his earlier response in relation to the allegations. Mr Watson stated that having worked for Together Queensland since 2011 he had received no written or verbal warnings and there were no substantiated complaints of aggression, theft, fraud or breaches of privacy or trust. Mr Watson also disputed that the performance plan issues warranted termination of his employment and requested that consideration be given to alternative penalties. In relation to the assertion that Mr Watson had not challenged the data in the 123 Contact forms Mr Watson stated that he challenged the meaning of the data and the circumstances that led to those numbers. Mr Watson further asserted that the data evidenced that he was improving his performance. Mr Watson also asserted that the conversion rate benchmark was unrealistic and it was inevitable that he would not be able to achieve it given his starting ratio. Mr Watson pointed to the fact that other Organisers had been unable to reach that conversion rate including at his sites while he was on leave and that this also evidenced that the benchmark was unrealistic. Mr Watson also asserted that the failure to follow a direction in relation to right of entry was a misunderstanding on his part and that he could not have understood the direction as a requirement to have weekly formal entries where there was no utility in doing so and members had requested a preference for meetings to be held outside the workplace.
[78] Mr Scott states that he considered this response and determined to dismiss Mr Watson on the basis that there had not been any acceptance by Mr Watson that there may be areas of improvement in his performance. Mr Scott caused a termination letter to be drafted and gave it to Mr Watson at a meeting on 7 March 2018. The termination letter states that Mr Watson’s characterisation of the recruitment target as an absolute that had to be achieved is incorrect and it was a benchmark target agreed at a team level. The letter states that the target is reasonable on that basis. The letter further states that at no point in the preceding 12 months has Mr Watson been able to consistently recruit at a level that even approaches that target and the data does not support Mr Watson’s contention that he had improved and would continue to do so. In relation to the failure to comply with the direction to have a meeting in a workplace Mr Scott’s assessment is that:
• On Tuesday 21 November Mr Watson was given a clear instruction in writing and verbally to conduct a weekly meeting in the workplace;
• Those instructions indicated that if Mr Watson was unable to secure a room he should insist on using the lunch room and there were further instructions in relation to the relevant legislative provisions in this regard; and
• That Mr Watson could hold a further meeting in the park if workers thought it of benefit.
[79] The letter goes on to note that despite these clear unambiguous directions, Mr Watson chose to:
• Week of 20 November hold no meeting because he had been advised by members that Tuesday was an optimal day for a meeting;
• Week of 28 November hold a meeting in a park on Tuesday and no meeting in the workplace;
• Week of 4 December hold a meeting in a park on Tuesday and no meeting in the workplace;
• Week of 11 December hold no meeting because of being on a phone queue from 8.30 am to 10.00 am on Monday, Wednesday and Friday of that week and provide no reason as to why a meeting was not held outside those times including on Tuesday which was an optimal day according to members.
[80] The letter of termination further stated that Mr Scott was not persuaded that Mr Watson had misunderstood the direction or that he had complied and that Mr Scott was concerned about the failure of Mr Watson to accept that there may be areas of improvement in his performance and a willingness to achieve improvement. It is also stated in the letter that if Mr Watson had more actively embraced the strategic approach within the Private Sector Team that better outcomes may have been achieved and that these observations were based on Mr Watson’s own responses where he had described that approach as “Cookie Cutter” and not sufficiently private sector friendly, flexible or open minded. The letter concludes by stating that Mr Scott is of the view that Mr Watson’s continued inability to recruit along with his failure to comply with reasonable and lawful instructions outweighs mitigating factors from Mr Watson’s service history and that based on his responses Mr Scott is not satisfied that Mr Watson’s performance will improve. Mr Watson was paid five weeks in lieu of notice on termination of his employment.
[81] Under cross-examination Mr Scott said that Mr Thomas had authority to place Mr Watson on a performance management plan and did not require Mr Scott’s permission to do so. Mr Scott agreed that the only area of failure in relation to the plan was Mr Watson’s recruitment levels. Mr Scott also said that it is his understanding that each organising team in the Union had a membership target and that this was as a result of a Branch plan to grow the membership of the Branch. In relation to discrepancies between recruitment and numbers of financial members, Mr Scott said that these were different measures and there are no comparisons between them. Mr Scott also said that he had considered whether to move Mr Watson to another area in order to improve his performance but decided that Mr Watson was not recruiting and that he was not following direction in relation to right of entry so that this was not warranted.
Other matters
[82] Mr Watson agreed under cross-examination that he had extracted data from the 123 Contact system to use in defending himself in the show-cause process and had tendered that information to the Commission. Mr Watson also agreed that on a strict reading he had breached Union policy in relation to confidentiality of personal information and Disclosure of Union information. Further Mr Watson accepted that it would not be expected that a Union Official would engage in such breaches of the Union policy. Mr Watson agreed that he had also failed to comply with post-employment obligations by failing to return data to the Union that he had downloaded. Mr Watson said that he did not know the process for seeking an order to produce documents or that he could request that the Commission make orders in relation to confidential information.
[83] Mr Watson also conceded that after his dismissal he had attempted to access the 123 Contact database remotely using an app on his mobile telephone and had been locked out because his password had expired or had been changed. Mr Watson agreed that he was intending to access information on that data base and said that he was interested to see if it was still up and running or had been used as a punitive tool to link to the termination of his employment. In response to the proposition that there would be no trust between the Union and Mr Watson following these beaches of policy Mr Watson said that there had been no trust between him and Mr Scott for seven years. Mr Watson also said that Mr Thomas and Ms Denny are just functions of Mr Scott and that he had been able to perform his role as an organiser despite Mr Scott’s attitude towards him.
[84] Mr Scott said in his oral evidence that Mr Watson did not tell him that he had accessed the 123 Contact data base prior to his dismissal and extracted data. Under cross-examination Mr Scott agreed that Organisers are entitled to access the database and do not require his permission to do so. In response to a question from me, Mr Thomas said that his comments related to normal use of the data base and he would have a different view if information from the database was used after employment had ceased or a former employee had attempted to access the database after ceasing employment.
[85] In final submissions Mr Watson’s Counsel stated that Mr Watson sought reinstatement but that it was accepted that compensation was a more likely remedy if his application succeeded. Later it was conceded that reinstatement was not practicable given the attitude of Mr Scott. It was also submitted that termination was not an appropriate outcome and Mr Watson should have been allocated to another area for a period of time to be further performance managed rather than being dismissed. It was further submitted that the recruitment target was arbitrary and unfair and that Mr Watson did not apply for a sales position but rather was out there to build a Union with a membership base and was committed to the long term growth of the Union.
LEGISLATION
[86] By virtue of s. 385 of the Act, a person has been unfairly dismissed if among other matters, the dismissal was harsh, unjust or unreasonable. Section 387 of the Act provides that in considering whether a dismissal is harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[87] The employer bears an onus of establishing that there was a valid reason for dismissal.26 A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”27 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,28 and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.29 While the employer bears the onus of establishing the validity of the reason for dismissal, the dismissed employee bears the onus of establishing that the dismissal was unfair.
[88] To determine whether there was a valid reason for a dismissal relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred, on the basis of the evidence before the Commission. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry that the employee was guilty of the conduct. To constitute a valid reason for dismissal, the Commission must assess whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response to the conduct.30 In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer.
[89] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.31
[90] I turn now to consider the criteria in s. 387 of the Act.
CONSIDERATION
Was there a valid reason for Mr Watson’s dismissal?
[91] I am satisfied and find that there were valid reasons for Mr Watson’s dismissal. Those reasons were based on capacity and conduct. In relation to recruitment, the Private Sector Team of which Mr Watson was a member had agreed on certain targets for the recruitment of new members based on converting non-members through structured conversations which were recorded on a data base. Whether or not Mr Watson suggested the target that was agreed is immaterial. Mr Watson was present at the meeting when the target was discussed and agreed with the target and there is no evidence that he raised any issue at that time. It is clear that the target was aspirational and may have been somewhat ambitious. Be that as it may, I do not accept the submission advanced on behalf of Mr Watson that the target was arbitrary and not evidence based. The attempts by Counsel for Mr Watson to challenge the target on the basis of analysing levels of financial membership or contact with members on the 123 Contact data base, was not to the point.
[92] Organising Teams are by their nature focused on recruiting new members and attempting to retain members who resign other than because of retirement or death. Together Queensland is entitled to put targets in place in the same way as any employer selling services. The target was to encourage Organisers to recruit as many members as they could to maintain and grow the Union’s membership base.
[93] Contrary to his submission, Mr Watson’s dismissal was not because of failure to reach a target or to have the required number of conversations with non-members. Rather it was because Mr Watson’s recruitment performance was inadequate. I accept that this was the case. Other Organisers in the team achieved consistently higher levels of recruitment than Mr Watson notwithstanding that they did not always achieve the target. Mr Scott was entitled to form a view that Mr Watson had the lowest recruitment levels in the team and on the basis of the uncontested evidence about recruitment levels given by Mr Thomas, that view was entirely accurate. Mr Watson did not challenge the accuracy of the data tendered by Mr Thomas showing recruitment figures for Mr Watson and other team members.
[94] It is also the case that Mr Watson’s attitude to recruitment left much to be desired. It is apparent from his responses to the allegations put to him in relation to his failure to recruit that Mr Watson did not accept the techniques which were being advocated by the Lead Organiser Ms Denny and viewed them as a “Cookie Cutter” approach. Much was made in Mr Watson’s evidence of his extensive experience in comparison to Ms Denny and his colleague Mr Colless. However, the contrast between Mr Watson and Mr Colless in terms of their attitudes to recruitment and to the use of techniques advocated by Together Queensland and Ms Denny for this purpose, was striking. Mr Colless was an impressive witness and was very clear about the objective of recruitment and the techniques that could be used to achieve the objective. Mr Watson was critical of those techniques in circumstances where his recruitment levels were significantly below those of Mr Colless. It is not surprising given the difference in attitudes displayed by Mr Colless and Mr Watson that a view was formed that Mr Watson’s performance was sub-standard and that it was not likely to improve.
[95] I also do not accept Mr Watson’s evidence that the sites he was allocated were more difficult to recruit in than those allocated to Mr Colless. I accept that Mr Watson’s sites included a number where bargaining was taking place or was shortly to commence and that he was also allocated a site where there was an issue with non-payment of an allowance that should have been a basis for recruitment. Mr Watson’s evidence that Mr Colless’ sites had established delegates was shown to be wrong and the general impression I got was that Mr Colless faced difficulty in recruiting in some of his sites and notwithstanding this managed to achieve significantly higher outcomes than Mr Watson by simply persisting with his efforts and applying the techniques that he had been trained in and which were discussed at weekly Team Meetings by Ms Denny. It is apparent that Mr Watson did not persist and I accept that he did not make effort to improve his performance so that Ms Denny, Mr Thomas or Mr Scott could have formed the view that he was trying to improve.
[96] It is also the case that Mr Watson was provided with significant support and assistance to address his recruitment performance. Ms Denny held one on one meetings with him for each week of the Performance Plan and gave detailed instructions which were then put in writing, about her expectations of Mr Watson. Ms Denny also accompanied Mr Watson on recruitment visits and made suggestions about how he could improve his techniques for engaging with potential members.
[97] The recruitment issue and Mr Watson’s failure to reach an acceptable level, is one of capacity. As a Full Bench of the Commission held in Crozier v Palazzo Corporation Pty Ltd 32an employee’s performance is an incidence of capacity and it is not the case that an employer does not have a valid reason for terminating an employee who lacks capacity to fill a key requirement of a position notwithstanding that the employee is doing his or her best to achieve that requirement. The primary role of a Union Organiser is recruitment and Mr Watson’s performance was not up to the required standard and it was reasonable for Mr Thomas and Mr Scott to conclude that it would not reach that standard in light of Mr Watsons’s attitude and the level of assistance provided to him. It is apparent that Mr Watson was not doing his best and that he held negative views about the techniques and approach he was being asked to use to recruit members.
[98] I also accept that Mr Watson failed to follow a lawful and reasonable direction with respect to exercising right of entry at particular workplace. The evidence of witnesses for Together Queensland is that right of entry is part of a philosophy of the Union being present in workplaces rather than being a third party to the employment relationship. I accept that this matter was discussed at Team meetings by Ms Denny and Mr Thomas and that Mr Colless also had discussions with Mr Watson about the importance of the Union having a presence in the workplace. The direction Ms Denny gave to Mr Watson was clear. From 21 November 2017 Mr Watson was directed to hold a weekly meeting at a particular workplace and to exercise right of entry to do so. The direction was also that if Mr Watson was not happy with the room provided by the employer for the meeting he should insist on using the lunch room as he was entitled to do while exercising his right of entry.
[99] Mr Watson’s evidence about this matter was unconvincing. As an Organiser Mr Watson had received training in relation to right of entry in 2016. That training included his right to insist on using a room in which employees ordinarily took their meals or breaks if he did not agree with the room provided to him by a particular employer. Mr Watson also signed a declaration stating that he had received this training. As previously noted, Ms Denny’s instruction included that Mr Watson should insist on using the lunch room if he was not happy with the room provided and he was also given an email setting out relevant legislative provisions that he could have used as a template to notify the employer that he wished to use a lunch room for the purpose of his meetings. I do not accept Mr Watson’s evidence that he did not understand the extent of his rights when entering a workplace for the purpose of conducting a meeting.
[100] I also do not accept that Mr Watson misunderstood the direction. It could not have been clearer. The comment set out in Ms Denny’s email about meetings outside of the workplace clearly stated that these could be held in addition to meetings in the workplace and not instead of such meetings. In short, the evidence establishes that Mr Watson chose not to follow the direction. The overwhelming impression I gained from Mr Watson’s evidence is that he believed that he knew better than Ms Denny about how to organise in workplaces and had a preference for conducting meetings at other locations.
[101] It is not to the point that the members of the Union wanted Mr Watson to conduct meetings on Tuesdays or that they had a preference for meetings to be held outside the workplace. The point of the meetings was to attempt to recruit new members and to be seen to be present and active in the workplace. Mr Watson had been directed to conduct weekly meetings in the particular workplace and he was required to follow that direction regardless of the views of members. I am satisfied that Mr Watson ignored this direction and I do not accept his reasons for not complying. Notwithstanding that the direction was given on a Tuesday (21 November) which was the day that members preferred that Mr Watson visit, there was no reason why he could not have visited that workplace later in that week. This was particularly so given that at the time the direction was given, Mr Watson was already on a Performance Plan to deal with issues which had arisen in relation to his failure to comply with other directions.
[102] In the week of 28 November and 4 December 2017 Mr Watson again did not comply with the direction. Instead Mr Watson flouted it by not holding meetings in the workplace and instead holding two meetings in a nearby park. In the week of 11 December 2017 Mr Watson did not hold a meeting claiming that he had been directed by Mr Thomas to undertake other work. The email exchange in relation to this alleged “direction” indicates that Mr Thomas asked for volunteers to assist in a particular task and that Mr Watson volunteered on three days that week between 8.30 am and 10.00 am. I can see no reason why Mr Watson could not have conducted a meeting on one of the other days of the week (which included Tuesday the optimal day for meetings) or outside the time he was undertaking the additional work. When Mr Watson did conduct a meeting in the workplace exercising his right of entry to do so, he was allocated a room that he claimed was unsuitable. Mr Watson took no steps to insist on the lunch room either on the day he conducted the meeting or thereafter. It is also the case that Mr Watson’s failure to comply with the direction to conduct weekly meetings from 21 November 2017 resulted in the only meeting that Mr Watson conducted in the workplace being conducted in the week before Christmas. It is well established that a refusal to follow a lawful and reasonable direction is a valid reason for dismissal and this is such a case. In my view, this matter alone would provide a valid reason for dismissal.
[103] I also accept that Mr Watson inappropriately accessed the 123 Contact data base for use in his defence and in his unfair dismissal application. Even if it was legitimate for Mr Watson to obtain data from the system prior to his dismissal for use in his defence of the allegations, Mr Watson did not use the data for that purpose. Rather, Mr Watson used it in his application to the Commission in circumstances where he took no steps to ensure the confidentiality of the data. I accept that Mr Watson may not have known he could take such steps but I am of the view that Mr Watson’s conduct in this regard indicates his lack of concern for his obligations to the Union in relation to keeping membership data confidential. It is established that conduct discovered after termination of employment can provide a valid reason for dismissal where it was not known about at the relevant time.
[104] In the present case Mr Watson also attempted to log onto the Union’s data base remotely after he had been dismissed. The authorities on use which may be made of knowledge of misconduct obtained after dismissal are limited to conduct that occurred during employment and do not deal with conduct after employment ceased. It may be that the principles could extend to Mr Watson’s conduct in attempting to improperly access the Union’s confidential information after his employment had ended. However given the findings that there were other valid reasons for Mr Watson’s dismissal it is not necessary to decide this point. It is a matter that is relevant to remedy in the event that Mr Watson’s dismissal is found to be unfair.
[105] I am satisfied that the concerns held by Mr Scott in relation to Mr Watson’s capacity and his persistent failure to improve and his conduct in failing to comply with a lawful and reasonable direction in relation to exercising right of entry were sufficiently serious matters to justify dismissal as a sound, defensible or well-founded response.
Was Mr Watson notified of the reason for his dismissal?
[106] I am satisfied and find that Mr Watson was notified of the reason for his dismissal. The process followed by Together Queensland ensured that the notification was provided in a manner that enabled Mr Watson to respond to the reasons and that he knew the implications if his response was not accepted.
Was Mr Watson given an opportunity to respond to reasons for dismissal related to his capacity or conduct?
[107] Mr Watson’s dismissal was for reasons of both capacity and conduct. I am satisfied and find that Mr Watson was given an opportunity to respond to the reasons for dismissal. In my view, Together Queensland followed a scrupulously fair process in the manner in which it dealt with Mr Watson. Following a lengthy and detailed performance management process which was extended to take account of Mr Watson being on leave, Mr Thomas wrote briefs to Mr Scott for the purposes of Mr Scott deciding whether the Union’s disciplinary process should be invoked due to Mr Watson’s continued failure to recruit members at an acceptable level and to comply with a direction about right of entry given to him by Ms Denny. Mr Thomas gave a copy of his first brief to Mr Watson before sending it to Mr Scott and provided an opportunity for Mr Watson to advise of any information he wished to add to that brief.
[108] The letter setting out the allegations was detailed and all relevant material was appended to it including both of the briefs prepared by Mr Thomas. The letter also informed Mr Watson of the provisions of the Union’s Code of Conduct that he was alleged to have contravened and the range of penalties which may apply if the allegations were substantiated, including termination of employment. Mr Watson was given an extended period of time to respond to the allegations including a period of paid special leave and while Mr Watson mounted an unsuccessful challenge to Mr Scott’s involvement in the process by alleging bias on the part of Mr Scott.
[109] After Mr Watson’s claims of bias against Mr Scott were rejected by an independent mediator, Mr Watson was informed that the allegations were substantiated and that Mr Scott was considering terminating his employment. A further opportunity was given to Mr Watson to respond in relation to the penalty being considered by Mr Scott. This is a clear case where the manner in which the allegations about Mr Watson’s conduct and capacity were put to him afforded Mr Watson a full opportunity to respond to those allegations.
Was there any unreasonable refusal to allow Mr Watson to have a support person?
[110] Mr Watson was offered the opportunity to have a support person present at discussions relating to his dismissal. There is no evidence that Mr Watson sought a support person at any other discussions or that there was a refusal in this regard.
Was Mr Watson warned about unsatisfactory performance prior to his dismissal?
[111] I am satisfied and find that Mr Watson was warned about unsatisfactory work performance prior to his dismissal. On the basis of the evidence before me, Mr Watson can have been in no doubt that Ms Denny and Mr Thomas believed that his performance was unsatisfactory. As early as 13 June 2017, Ms Denny sent an email to Mr Watson stating that he had failed to meet the required non-member conversation target and that she would need to present this information to Mr Thomas to consider whether this was grounds for a formal process to be initiated. On 28 June 2017 Mr Thomas initiated the performance management policy and informed Mr Watson that the areas of concern that he wished to explore were failure to perform duties of his position to the required standard and failing to follow a direction from his supervisor. The decision to place Mr Watson on a performance management plan was communicated to him by Mr Thomas at a meeting of 3 July 2017 and the notes of that meeting sent by Mr Thomas to Mr Watson include a statement that a failure on the part of Mr Watson to meet an acceptable standard may result in the termination of his employment. This statement was also made when the plan was finalised on 30 November 2017 and Mr Watson was informed that his performance had not improved to the required level in the key area of recruitment.
Did the size of the employer’s enterprise impact on the procedures followed in effecting the dismissal?
[112] Together Queensland is a large well-resourced organisation of employees. As previously noted a scrupulously fair process was followed by the Union in its dealings with Mr Watson including the procedures followed in effecting the dismissal. Given the nature of the enterprise conducted by Together Queensland this is to be expected and this consideration is not relevant in the present case.
Did the absence of dedicated human resource management specialists or expertise in the enterprise impact on the procedures followed in effecting the dismissal?
[113] Together Queensland as a Union has specialists who understand human resource management practices and procedures and this is evident from the manner in which Mr Watson was dealt with. This consideration is not relevant in the present case.
Are there any other relevant matters?
[114] There is no evidence to support the assertion made by Mr Watson that Mr Scott was biased against him and that he had maintained this bias on a personal and political level since 2012. Mr Watson made a number of serious allegations about Mr Scott in his application for an unfair dismissal remedy and his evidence to the Commission. These allegations were not substantiated. It is also the case that they were based on historical events in connection with the amalgamation of the Union and that none of the witnesses called by Mr Watson in relation to these allegations had any contemporary knowledge of the Union’s operations in Queensland or the events that led to Mr Watson’s dismissal and their evidence was largely irrelevant.
[115] Further, an independent mediator who is a member of the Queensland Industrial Relations Commission found that the allegations of bias against Mr Scott could not be sustained. I also do not accept that Mr Scott interfered with Mr Watson’s attempts to obtain representation from The Services Union and I accept Mr Scott’s evidence that he was endeavouring to facilitate that representation so that the mediation could be conducted expeditiously. This was a serious allegation that also involved officials of The Services Union and it was not able to be established by Mr Watson.
[116] Mr Watson was also not able to establish that there were different standards applied to him than were applied to other Organisers in the Private Sector Team or elsewhere in the Union’s operations. Quite simply, the recruitment figures speak for themselves and clearly establish that Mr Watson’s recruitment figures were below those of Mr Colless. Mr Watson also gave evidence suggesting that the performance management plan was impacted by his absence from the workplace due to health issues. Details were not put into evidence. In this regard I note that the time period over which the performance plan was conducted was extended to take into account Mr Watson’s absences from the workplace and regard was had to those absences when recruitment figures were tallied and compared.
[117] Mr Watson worked for the Union for a relatively lengthy period and there is no evidence that his dismissal was for any reasons other than those advanced by Together Queensland in the correspondence to Mr Watson and before the Commission. There is no evidence from Mr Watson about economic effects of his dismissal. Mr Watson desires a career as a Union official and maintains that it is his calling, however there is no evidence that his dismissal is impacting on his ability to obtain employment with other Unions or generally. Mr Watson has raised no mitigating factors that could lead to a conclusion that his dismissal was unfair.
[118] I am also of the view that Mr Watson’s conduct in attempting to access the Union’s data base after his dismissal was completely inappropriate and this is a matter to which I have had regard. If I was required to consider remedy I would not have reinstated Mr Watson on the basis that his conduct in accessing the data base is destructive of the necessary trust and confidence for an employment relationship to be re-established.
CONCLUSION
[119] After considering all of the evidence and material tendered by the parties I have concluded that Mr Watson’s dismissal was not unfair and I dismiss his application for an unfair dismissal remedy. An order to that effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
Mr J Shepley of Counsel on behalf of Mr Watson.
Mr B Docking of Counsel instructed by Maurice Blackburn on behalf of the ASU.
Hearing details:
18, 19 & 20 July.
2018.
Brisbane.
Printed by authority of the Commonwealth Government Printer
<PR704351>
1 Exhibit A1 Witness Statement of Rana Shane Watson dated 18 May 2018.
2 Exhibit A2 Witness Statement of Julie Anne Bignell.
3 Exhibit R3 Witness Statement of Michael Silvanus Thomas dated 11 June 2018.
4 Exhibit R7 Witness Statement of Billy Evans Colless dated 12 June 2018.
5 Exhibit R13 Witness Statement of Alexander Patrick Scott dated 12 June 2018.
6 Exhibit R15 Witness Statement of Megan Jane Denny dated 11 june 2018.
7 Exhibit R2 pages 18 and 19.
8 Exhibit A1 Annexure 28.
9 Exhibit A1 Annexure 29.
10 Witness statement of Michael Silvanus Thomas dated 11 June 2018
11 Exhibit R2 Respondent Bundle of Documents at pg 74.
12 Ibid at pg 77.
13 Witness Statement of Michael Silvanus Thomas dated 11 June 2018 at 89.
14 Exhibit R2 at pg 124.
15 Annexure 6 to A1
16 Exhibit R2 page 31.
17 Exhibit R2 page 150.
18 Exhibit R2 page 215 – 217.
19 Transcript of Proceedings 18 July 2018 PN448-449.
20 Ibid at PN453.
21 Ibid at PN456.
22 Transcript of Proceedings 18 July 2018 PN481 – 485.
23 Transcript of Proceedings 18 July 2018 PN672 – 682.
24 Transcript of Proceedings 19 July 2018 PN1731 – PN1745.
25 Exhibit R1.
26 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.
27 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
28 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
29 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
30 Bista v Glad Group Pty Ltd [2016] FWC 3009.
31 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
32 (2000) 98 IR 137
0
8
0