[2020] FWC 7027

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Nisset Puth
v
Precision Valve Australia Pty Ltd
(U2020/8991)

DEPUTY PRESIDENT SAMS

SYDNEY, 29 DECEMBER 2020

Termination of employment – application for an unfair dismissal remedy – reinstatement and lost remuneration – long serving Quality Assurance Inspector – allegations of misconduct – serious breach of Code of Conduct and various Company policies – alleged bullying and undermining of HR Manager – unauthorised access of Union Officials to the site in breach of COVID-19 Policy – copying and distributing of altered confidential email chain – taking of excessive breaks – applicant’s evidence and explanations not accepted – allegations proven – allegations in aggregate constitute valid reasons for dismissal – no procedural unfairness issues – mitigating factors do not outweigh seriousness of misconduct – dismissal not harsh, unjust or unreasonable – application dismissed.

BACKGROUND

[1] On 30 June 2020, the United Workers’ Union (the ‘UWU’ or the ‘Union’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), on behalf of its member, Ms Nisset Puth as a consequence of her dismissal from employment with Precision Valve Australia Pty Ltd (‘Precision’, the ‘Company’ or the ‘respondent’) on 23 June 2020. Ms Puth seeks reinstatement to her former position, having worked for Precision for 17 years. At the time of her dismissal, she was employed as a Senior Quality Inspector under the Precision Valve Australia Pty Ltd Enterprise Agreement 2019 (the ‘Agreement’) on a salary of $1,607.72 per week.

[2] Ms Puth was stood down on full pay on 16 June 2020, when she received a ‘show cause’ letter from Mr Brad Edwards, Operations Director, in which a number of allegations were made concerning Ms Puth’s conduct as follows:

‘Dear Nisset

RE: ALLEGATIONS OF MISCONDUCT AND CONFIRMATION OF STAND DOWN ON FULL PAY - PRIVATE & CONFIDENTIAL

I am writing to formally advise you that Precision Valve Australia P/L has received information that suggests that you have engaged in misconduct, including breaches of our policies and Code of Conduct.

The allegations include, but are not limited to, the following:

• That on or about the 27th May 2020, it is alleged that you had attempted to bully and harass the Human Resources Business Partner by stating non-factual and vexatious allegations to the QA Manager, Mr David Croudace regarding Ms Leonardi post a discussion with both Ms Leonardi and Mr Sossio Capasso regarding funds raised by a selective group of employees on afternoon shift. At approx. 4.30pm on 27th May 2020, and following the discussion, you had allegedly advised Mr Croudace that Ms Leonardi had berated you and criticized you for sending flowers to Mr Kayani's family;

• That on or about the 29th May 2020, and at approx. 15:00pm, it is alleged that you had allowed access to the two (2) Union Organisers (visitors) by opening the front access door on two separate occasions without the consent and approval of Precision Valve Management despite you were not the intended recipient for the visitors. As a result of your alleged actions, both Visitors had breached the company COVID19 policy and further placed PVA employees at risk.

• That on or about the 29th May 2020, it is alleged that you had tampered with a confidential and privileged document in the form of a partial email discussion thread between Ms Leonardi and UWU Union Organiser, Mr James Evans by removing Ms Leonardi's email signature which contained Precision's disclaimer from the unauthorised copies and inserting a forged signature on the document prior to distributing to colleagues in an attempt to defame, and in direct attempt to bully and harass Ms Leonardi;

• That on or about the 29th May 2020, it is alleged that you had made unauthorised copies of a confidential and privileged document in the form of an email discussion thread between Ms Leonardi and UWU Union Organiser, Mr James Evans using company equipment. Further you were observed to have distributed and issued these unauthorised copies to employees at Precision Valve Australia without the consent of both Ms Lilianne Leonardi and/or Precision Valve management;

• That on the following dates, you were observed to have taken unauthorised excessive breaks;

• On 15th April 2020 from 17:32 to 17:52 (15 min break) and at 19:58 to 20:36 (30 min break)

• On 15th May 2020 from 17:31 to 17:58 (15 min break) and at 19:58 to 20:37 (30 min break) • On 27th May 2020 from 17:32 to 18:08 (15 Min break) and 20:05 to 20:59 (30 min break)

• On 28th May 2020 from 17:36 to 17:56 (15 Min break) and 20:16 to 20:58 (30 minute break)

• On 29th May 2020 from 17:29 to 18:23 (15 Min break) and 20:06 to 20:49 (30 minute break)

• That on or about Friday, 29th May 2020, and at approx. 15:00pm you were observed by Senior Managers of PVA to be engaging in social and non-work related discussions with Union Organisers in the sites lunch/Tea room on commencement of your shift and outside of your authorised break times.

These allegations are of a serious nature and if substantiated would be in contravention of the following sections of Precision Valve Australia P/L Code of Conduct, Discrimination and Harassment Policy, Internet, Email and computer Use policy, and Privacy and Privacy Complaints policy:

Code of Conduct

Section 5.2 - As a representatives of Precision Valve, all workplace participants are expected to conduct themselves and treat others in a professional and courteous manner at all times, and observe the following standards of behaviour both inside and outside of the workplace, especially when participants are representing the company:

a) Comply with all current and local legislations, company policies, procedures, rules, and regulations;

b) Comply with all lawful and reasonable directions provided by Precision Valve management and/or authorised representative.

c) Be honest and fair in dealings with customers, clients, suppliers, co-workers, management and the general public.

e) Treat customers, clients, suppliers, co-workers, company management and the general public in a non-discriminatory manner with proper regard for their rights and dignity. In this regard, discrimination, victimisation or harassment based on a person's race, colour, religion, ethnicity, age, sex, sexual orientation and marital status are protected by law and will not be tolerated.

f) Promptly report any violations of law, ethical principles and breaches of policies of this Code.

g) Maintain punctuality. If a workplace participant is late or cannot report for work, please telephone and let the supervisor know as soon as possible.

h) Do not engage in activities or practices during work time for private gain. Further, workplace participants must not abuse the advantages of their position for private purposes, or solicit or accept any gift or benefit in connection with their employment or engagement which might compromise, or be seen to compromise their integrity or Precision Valve's reputation.

j) Observe and comply with Precision Valve Australia Work Health and Safety policy and procedure obligations, and co-operate with all initiatives taken by Precision Valve in the interests of Work Health and Safety.

k) Be truthful in all dealings with all participants encountered within the workplace. Workplace participants must not make any false or misleading declarations during their course of employment, performance of their duties or when providing services on behalf of Precision Valve. A declaration can be considered to be misleading if information is omitted or presented in a manner that enables a misleading view of the situation to be formed. This includes incidents where there is a failure to comply with reporting requirements and/or falsifying records.

l) Refrain from any form of conduct which may cause any reasonable person unwarranted offence or embarrassment or give rise to the reasonable suspicion or appearance of improper conduct or biased performance.

m) Not act for an improper or ulterior purpose to the detriment (whether perceived or actual) of Precision Valve.

u) Do not take any unauthorised breaks without the consent of your Manager/supervisor. This includes smoking during working hours unless it is during prescribed breaks and within the designated areas.

Discrimination & Harassment Policy & Procedure

• Section 3 (iii)- Workplace harassment is unreasonable, unwelcomed and unwarranted behaviour directed towards a worker or a group of workers which could make a person feel offended, humiliated or intimidated and that of which creates a risk to a person's health and safety. Conduct can amount to harassment even if the person did not intend to offend, humiliate or intimidate the other person.

• Section (iv) Bullying- Bullying is repeated unreasonable behaviour directed towards an individual or a group that creates a risk to health and safety. Unreasonable behaviour means behaviour that a reasonable person, having regard to all the circumstances, would expect to victimise, humiliate, undermine or threaten.

• Section (v) Victimisation- Victimisation is where a person is subject to threatening behaviour by another as a form of detriment because they have lodged, or is proposing to lodge, a complaint or partake in an investigation of unlawful conduct, discrimination and/or harassment. Workers must not retaliate against a person who raises a complaint or subject them to any detriment.

• Section 5- Rights and Responsibilities,

All workers must:

• ensure they do not engage in any unlawful conduct towards others within the workplace;

• ensure they do not aid, abet or encourage other persons to engage in unlawful conduct;

• follow the Precision personal grievance complaint procedure if they experience any unlawful conduct;

• report any unlawful conduct they see occurring to others in the workplace in accordance with the complaint procedure; and

• Maintain confidentiality if they're involved in the complaint procedure.

Workers should be aware that they will be held legally responsible for all unlawful conduct, especially for those whom who aid, abet or encourage other persons to engage in such behaviour and will be legally liable.

Internet, Email and Computer Use Policy

Section 5.1 Use of internet, email and computers

• Section 5.1- Where use is allowed, users are entitled to use Precision computer network only for legitimate business purposes.

• Section 5.2- Users are permitted to use Precision's computer network for limited and reasonable personal use. However any such personal use must not impact upon the user's work performance or Precision resources or violate this Policy or any other Precision Policy.

• Section 5.3 -A user must not use Precision's computer network for personal use if that use interferes with the efficient business operations of Precision or relates to a personal business of the user.

Section 7 - Prohibited Conduct

• 7.1 Users must not send (or cause to be sent), upload, download, use, retrieve, or access any email or material on Precision's computer network that:

(b) causes (or could cause) insult, offence, intimidation or humiliation;

(c) may be defamatory or could adversely impact the image or reputation of Precision. A defamatory message or material is a message or material that is insulting or lowers the reputation of a person or group of people;

(d) is illegal, unlawful or inappropriate;

(f) gives the impression of or is representing, giving opinions or making statements on behalf of Precision without the express authority of Precision. Further, users must not transmit or send Precision's documents or emails (in any format) to any external parties or organisations unless expressly authorised to do so;

• 7.2 Users must not use Precision's computer network:

(a) to violate copyright or other intellectual property rights. Computer software that is protected by copyright is not to be copied from, or into, or by using Precision's computing facilities, except as permitted by law or by contract with the owner of the copyright;

(b) in a manner contrary to Precision's Privacy Policy;

(d) to disclose any confidential information of Precision or any customer, client or supplier of Precision's unless expressly authorised by Precision;

(h) to use Precision's computer facilities for personal gain. For example, running a personal business.

Privacy & Privacy Complaints Policy

• Section 6.4 - Non-disclosure

(a) Employees of PRECISION are not permitted to disclose confidential or personal information which is collected by PRECISION about its suppliers, customers, agents or contractors.

(b) If an employee is not sure whether information is confidential or personal, they must check with PRECISION's HR Manager or their immediate manager.

(c) Confidential and personal information is information that is not in the public domain. It includes, but is not limited to, the following types of information:

• any personal information about an individual which has been collected by PRECISION;

• any information about a supplier, customer, agent or contractor of PRECISION;

• any personal information about an employee or colleague (including a prospective or former employee); and

• any information about PRECISION's business affairs or business systems. Precision Valve Australia P/L Enterprise Agreement 2019

• Clause 12.7 Timekeeping

• Employees who are late or leave early shall lose wages for the time so absent, unless prior arrangement with their supervisor

You have been stood down on full pay, effective 16 June 2020 and you must not return to work until you have met with management on 18 June 2020.

You will have an opportunity to respond in a formal right of reply meeting with Ms Lilianne Leonardi, Human Resources Business Partner and I on Thursday, 18th June 2020 at 3.00pm in the Front Office Training/Boardroom room. As termination of employment is one of the potential outcomes of this meeting, you may wish to bring a support person to the meeting.

Please be advised that you must not directly or indirectly victimise or attempt to victimise any person who may have assisted us in our enquiries. The allegations made against you remain confidential and should not be discussed with other employees.

If you require further assistance and/or support please contact either myself or Lilianne Leonardi on [phone number provided].

Yours faithfully
Brad Edwards’

[3] Mr Puth with her support person, Mr James Evans, attended a meeting on 18 June 2020 with Mr Edwards, Mr Sossio Capasso (Production and Toolroom Manager) and Ms Lilianne Leonardi (HR Business Partner).

[4] On 23 June 2020, Ms Puth was sent a letter summarily terminating her employment for serious misconduct (although five weeks’ notice was paid). In addition to Mr Edwards concluding that Ms Puth had ‘not been open and honest’ in the 18 June 2020 meeting, Mr Edwards set out the findings made on the allegations in the show cause letter as follows:

‘Dear Nisset,

RE: CONFIRMATION OF TERMINATION OF EMPLOYMENT

On 16 June 2020, you were issued with a letter confirming your stand down on full pay and setting out various allegations of misconduct. You were invited to a meeting that occurred on 18 June 2020. You attended this meeting in the presence of your support person. You were made aware, prior to the commencement of the meeting that you would have the opportunity to respond to the matters alleged and the possibility of the termination of your employment.

I have had careful regard to your responses as communicated to me at our meeting. I am not satisfied that you were, in the circumstances, open and honest with respect to your responses. On a number of occasions during the meeting, you chose not to respond knowing that your ongoing employment was being considered.

Whilst I set out below my determination of the allegations, I must advise you that I have no confidence in you as an employee and that I have elected to terminate the employment, effective immediately.

Taking into account the matters alleged against you, and with regard to the importance of our policies, I do believe that your behaviour and, in particular your responses to the allegations, would permit the company to terminate the employment by way of summary dismissal.

In the circumstances, and without any prejudice to the legal position of Precision Valve, I have made an election to make a payment of five weeks' pay in lieu of notice. This payment will be made into your bank account, along with your salary up to and including today's date and your accrued but untaken service related entitlements. If you have any questions about your entitlements, please contact Human Resources.

FINDINGS

In my letter of 16 June 2020, a series of allegations were particularised. Taking each one of the allegations, and with regard to your responses of 18 June 2020, please be advised:

1. I find that your behaviour on 27 May 2020 was both inappropriate and constituted an attempt on your part to bully and harass the Human Resources Business Partner. I am not prepared to accept your comments with respect to your subjective account of your state of mind. Irrespective of your account of your subjective state of mind, I believe that you were less than honest in your dealings with the Human Resources Business Partner.

2. I believe that you were well aware of the procedures that had been put in place with respect to COVID-19 and visitors to the site. You were also well aware that individuals could not be permitted access to the site without the approval of management. This direction was particularly relevant to granting access to third parties such as representatives of a trade union. I find that you deliberately and knowingly granted access to the individuals without authority. I also find that this was a knowing and deliberate breach of the policies that had been put in place to minimise the spread of COVID-19.

3. Your account of your involvement with the unauthorised altering, printing and distribution of the email chain on 29 May 2020 conflicts with the available evidence and I find that your responses were not entirely honest. Whilst I am not in a position to allege to the necessary level of proof that you personally manipulated the content of the emails and had placed on the email chain the signature of the individual without her permission, I am satisfied that you were aware that the documents had been altered and that you chose to copy and distribute the documents in full knowledge of the alteration. In making this finding, I also note that Mr James Evans was your support person at the meeting on 18 June 2020 and that he had· the opportunity to discuss this allegation with. you and to assist you· with any response. When confronted with the CCTV footage, I note that you refused to comment on the evidence.

4. I would also add that if there was any genuine confusion on your part (which is denied), it was always open to you to check with Ms Leonardi before you took steps to copy and distribute the email communications. I find that your failure on this part was deliberate and possibly part of what appears to be an ongoing attempt on your part to undermine Ms Leonardi in her role.

5. With respect to the unauthorised taking of excessive breaks, I find that your explanations lack credibility and are not accepted. You appear to have deliberately and repeatedly taken unauthorised breaks without the permission of your manager.

6. With regard to your responses to the events of 29 May 2020, I am not satisfied with your response, however, in the circumstances I have not made a finding in relation to 29 May 2020.

I trust that this letter of termination sets out the basis for the termination of your employment and I wish you well in any future employment opportunities that may become available to you.

Regards
Brad Edwards’

[5] The matter was remitted to me for arbitration following an unsuccessful conciliation before a Commission Conciliator. In accordance with my usual practice, I issued directions for the hearing, requiring Precision to file first as this is a serious misconduct case. I listed the matter for a further conciliation on 13 August 2020. Regrettably, the application was not able to be resolved and I confirmed the directions previously issued. At the hearing on 7 and 8 October 2020, Mr A Aghazarian with Ms M Bolton appeared for the Union and Ms Puth. Mr P Brown, Partner, Baker McKenzie, appeared for the respondent, with permission being granted for Precision to be represented by a lawyer, pursuant to s 596 of the Act. I determined that an ‘in person’ hearing should be held, notwithstanding the limitations on ‘in person’ hearings due to the COVID-19 pandemic. Appropriate health and safety measures, authorised by NSW Health for NSW Courts, were observed in the hearing. I thank the parties for their cooperation in this respect.

THE EVIDENCE

[6] The following persons provided statement and oral evidence in the proceedings:

• Mr Bradley Edwards – Operations Director;

• Ms Lilianne Leonardi – HR Business Partner;

• Mr Sossio Capasso – Production and Toolroom Manager;

• Ms Jainer Solis – Production Supervisor;

• Mr David Croudace – Quality Manager;

• Ms Puth – the applicant;

• Ms Jannine Moroney – Production Technician and Union Delegate; and

• Mr James Evans – Union Organiser.

Also tendered in the evidence were a number of the respondent’s policies and procedures; see: [2] above.

For the respondent

Mr Bradley Edwards

[7] Mr Edwards was the decision maker who determined to terminate Ms Puth’s employment. In the meeting on 18 June 2020, he arranged to have a computer to show CCTV footage. He reviewed Ms Leonardi’s notes of the meeting and said they accord with his recollection of the discussions. The meeting went from 3:10-4:28pm, with two short breaks requested by Mr Evans. The CCTV footage showed the associated incidents on 29 May 2020 around 3pm and 8pm that day.

[8] Mr Edwards said that when it was put to Ms Puth that the CCTV footage (played during the meeting) showed that she had allowed two visitors (Union Organisers) access to the site in breach of the Company’s COVID-19 Policy, she responded on three occasions at Mr Evans urging to say ‘No comment’. Ms Puth had alleged that another employee had permitted her to bring the visitors from reception to the lunchroom. Mr Edwards said this employee had no authority in respect to allowing visitors on site. Mr Edwards asked the other employee if he had allowed the two Union Officials access. He replied:

‘I got told by Nisset they were coming and had 24 hour access. I knew they were coming, but I couldn't leave the line. I said it is up to you, you can let them in, but they weren't coming for me. Which way Nisset let them in, I don't know. I didn't tell her to go let them in. Nisset is a grown person, she can make her own decisions, it is not my place.’

[9] Mr Edwards said that Ms Puth had no authority to permit visitors to enter the site and no visitor could enter without undergoing a COVID-19 temperature check and the filling out of a questionnaire. Only four persons had the authority to do so – himself, Mr Capasso, Ms Leonardi and the Engineering Manager. Mr Edwards set out in some detail the procedure for reception of all visitors to the Ingleburn site at the time, and what the CCTV showed of what Ms Puth had done to hold the automatic locking door open twice, without any visitor registration or fingerprint scanning.

[10] Mr Edwards said that he was alerted to the arrival of the visitors and went to reception. They were not there and there was no record of them signing in, or having undertaken the temperature checking. At this point, he did not know who had allowed access, but assumed they would be in the lunchroom. He went there and saw the two officials, with about 10 employees. Mr Edwards walked them back to reception to have a temperature check.

[11] Mr Edwards said that one of the matters discussed in the 18 June 2020 meeting, was Ms Puth’s allegation of bullying and harassment by Ms Leonardi. This arose from Mr Croudace’s email of 27 May 2020 which read:

‘Jannine and Nisset are extremely upset in the QA lab.

Nisset has said she was given a hard time for sending flowers to a work mates funeral.

Is this the company we are working for now?

Regards
David Croudace’

[12] Mr Edwards was so concerned with this email he held a meeting with Mr Croudace in which the following conversation occurred:

Mr Edwards: ‘Thanks for coming. I am very concerned about the contents of your email from yesterday. Can you explain to me what happened and what prompted you to write that email to me?’

Mr Croudace: ‘Janine and Nisset were complaining about getting flowers for Akhlaq and being in trouble for it. Nisset said that Lilianne Leonardi demanded that she hand over the money.’

Mr Edwards: ‘Well I have spoken to Sossio and Lilianne, and that is not correct.’

Mr Croudace: ‘Why am I the last person to find out about all of this? These two ladies were yelling and screaming in my office, I wasn't sure what I should do.’

Mr Edwards: ‘Well, what did you do?’

Mr Croudace: ‘I walked into my office, I didn't want to be part of the discussion.’

Mr Edwards: ‘You should at least come and have a conversation with me before you send emails off like that. It is very disturbing to receive an email like that with no form of investigation or discussion about what had happened.’

Mr Croudace: ‘Sorry, I was just very concerned myself at the way these ladies were carrying on. Next time I will be more thoughtful before I send an email off like that.’

[13] In addition, Mr Edwards said a separate complaint had been made about afternoon shift employees not returning to work on time after their breaks. As a result, he reviewed the CCTV footage and established that on 10 occasions from 15 April-29 May 2020, Ms Puth was late in returning to work after a break, from between 5 minutes to 38 minutes. Mr Edwards said this problem had arisen early in the year and a notice to all employees dated 3 January 2020 was posted which reads:

‘ATTENTION ALL STAFF

Please ensure you adhere to your BREAK TIMES by promptly commencing and returning from your 15 minute and 30 minute break each day.

Please ensure CROSS COMMUNICATION between shifts occurs on the floor. This ensures the smooth running of the next shift.

Thank you for your assistance.’

[14] Mr Edwards believed that as Ms Puth’s position involved a high level of integrity and trust, there could be no trust and confidence in her, if she was reinstated. He stated his reasons as:

(a) Given the seriousness of the COVID-19 pandemic, Ms Puth’s actions are difficult to understand and remain largely unanswered.

(b) Her actions were deliberate, and she is not prepared to comply with Company policies.

(d) She supplied misinformation and involved herself in printing and distributing deliberately altered documents.

(e) Ms Puth acted repeatedly to not comply as to taking breaks during her shifts.

(f) Ms Puth seems to think she is exempt from straightforward and obvious policy requirements, particularly in respect to the response to the COVID-19 Policy. She appears to observe only policies which she likes, or are consistent with her view of her role in the business.

Ms Lilianne Leonardi

[15] Ms Leonardi has worked in human resources management for over 18 years. To the extent Ms Leonardi’s evidence corroborates or repeats the evidence of Mr Edwards, I will not refer to it here. Ms Leonardi attached to her statement copies of all the respondent’s relevant policies in this matter. They are:

(a) The Code of Conduct;

(b) Discrimination and Harassment Procedure;

(d) Social Media Policy;

(e) Privacy and Complaints Policy; and

(f) COVID-19 Policy (in force at 29 May 2020).

[16] Ms Leonardi said that when the afternoon shift supervisor, Mr Akhlaq Kayani, passed away suddenly on 22 May 2020, Mr Edwards appointed her to be the authorised spokesperson for the Company to liaise with Mr Kayani’s family. Between 22-24 May 2020, she made contact with the family to offer support and to make arrangements for services to help the family. On 25 May 2020, Mr Edwards requested she work with the Production and Toolroom Manager (Mr Capasso) to organise a Company donation/collection for the family. A formal notice was placed on the employee Notice Board on 27 May 2020 to that effect. Mr Capasso followed up on the collection with both the Day and Afternoon shift supervisor and Mr Solis advised a collection had already taken place on afternoon shift, but some people had been excluded. Ms Puth had arranged this collection.

[17] Ms Leonardi said she had a meeting with Mr Capasso and Ms Puth on 27 May 2020, where she explained that the Company wanted to match the employee donations dollar for dollar and to communicate Mrs Kayani’s request for privacy. Ms Leonardi said she thanked Ms Puth for coordinating the afternoon shift collection and for sending flowers to the family. Ms Puth said she was not sure how much had been raised. She had purchased the flowers and was waiting for further monies to be transferred to cover the cost of the flowers. When Ms Leonardi asked for an approximate amount, Ms Puth became agitated and said ‘It’s just not my money. I can’t tell you what they want to do with it’. Ms Leonardi said she tried to calm her down and explained the Company wanted to pool the funds and match the employee contributions. Ms Puth stood up and said ‘I can’t handle this. It’s not my money, I can’t hand it over to you’. She walked out of the meeting. It was Ms Leonardi’s evidence that at no stage in the meeting, did she raise her voice, bang her fists on the table or demand the money she collected.

[18] Ms Leonardi referred to the email from Mr Croudace; see: [11] above, after he heard Ms Puth and Ms Moroney alleging that she had berated and criticised Ms Puth for organising and sending flowers to Mr Kayani’s funeral. Ms Leonardi believed Ms Puth had misrepresented their discussion and made false allegations. This constituted a breach of the Bullying and Harassment Policy. This issue was discussed in the meeting on 18 June 2020. Ms Puth repeated her allegations in the meeting and answered ‘no comment’ to questions about another conversation overheard by Mr Croudace, and whether they had complained to the Union about Ms Leonardi.

[19] In respect to the visitor access allegation, Ms Leonardi referred to the respondent’s COVID-19 Policy. Her understanding was that Ms Puth met the two Union Officials, Mr Evans and Ms Emmanuel and escorted them from reception to the meal room. In doing so, the visitors:

(a) were not initially questioned in accordance with the COVID-19 Policy;

(b) did not undergo a temperature check; and

[20] In response to this allegation in the meeting on 18 June 2020, Ms Puth said:

‘Yes I did let them in I got a phone call from Leah saying that she was outside cause we don't have an afternoon delegate. Before I opened up the gate, I spoke to Sasha and asked him if it was ok for me to open it up. He said yeah it is because they would have followed the rules and besides they would have advised the company that they were coming. And it's the Union they wouldn't be breaking the rules. So I opened the door for them Leah told me that they came to see us all lo comfort us and say hello, but they didn't tell me why they were there at site. So I just thought maybe they wanted to see how we were doing? I didn't think that I’m not allowed to do that.’

[21] After being showed the CCTV footage, Ms Puth declined to comment on further questions asked by Mr Edwards.

[22] In respect to her altered email, Ms Leonardi explained that she had corresponded with Mr Evans in respect to another employee, Janine Moroney, and the passing of Mr Kayani. Ms Leonardi regarded these emails as confidential, as they related to an existing employee and Mr Kayani. They were not intended to be circulated to other persons than the intended recipients. She attached the original emails to her statement and the altered emails (which had been placed on the Notice Board). The alterations were the deletion of the disclaimer about the prohibited use, copy and distribution of the email and her signature block had been removed and replaced with ‘Kind regards, Lilianne Leonardi’. She believed these last words had been typed into her email by someone else, without her permission. Ms Leonardi understood that Mr Edwards removed the emails from the Notice Board and reviewed video footage to establish how and when these copies were distributed. Mr Edwards had advised her that:

‘(a) the video footage showed a person by the name of Leah Emanuel (sic) placing the document on a Notice Board at approximately 4.00 pm on Friday 29 May 2020;

(b) on Friday 29 May 2020, the Applicant was observed on CCTV footage handing out copies of the same document to other employees and placing copies of the document on the tables in the lunchroom.’

[23] This matter was also discussed at the 18 June 2020 meeting. Ms Puth accepted she had made one copy, but denied she had altered it in any way. On reviewing the CCTV footage, it shows Ms Puth making multiple copies. Another employee had said she distributed them in the meal room. Ms Puth declined to answer any further questions.

[24] In respect to the unauthorised breaks allegation, Ms Leonardi said this arose after other employees were observed away from their workstations on 13 May 2020 and a complaint about how the Night Shift Supervisor had spoke to them. Mr Edwards undertook a broader review of the Afternoon shifts and established Ms Puth’s absences as set out in Mr Edwards’ evidence at [13] above. At the meeting on 18 June 2020, Ms Puth could recall only two or three instances and when asked if she had permission from her supervisor, she said ‘I think I did. I always get authority’.

[25] Ms Leonardi recorded the amount Ms Puth earnt in the 26 weeks prior to her dismissal as $59,431.94. Ms Leonardi did not believe reinstatement would be appropriate as the respondent had lost trust and confidence in her. In addition to the reasons stated by Mr Edwards, Ms Leonardi added:

(a) Ms Puth had deliberately acted in a way to undermine her position and spread unjustified misinformation about their dealings.

(b) Ms Puth deliberately attempted to portray her as uncaring or indifferent to Mr Kayani’s passing.

(c) The attacks on her in the emails were personal and Ms Puth actively participated in their distribution to undermine her and showed she was less than truthful, and displayed little or no remorse for her actions.

(d) Ms Puth had knowingly breached the COVID-19 Policy and the Company’s requirements as to taking breaks.

(e) Ms Puth’s attendance at the meeting on 18 June 2020 displayed that she did not contest or refused to comment on matters when she was aware her employment was at risk.

(f) Ms Puth’s conduct demonstrated little accountability, and no remorse or contrition for her actions.

Mr Sossio Capasso

[26] Mr Capasso was charged by Ms Leonardi to collect donations from workers for the family of Mr Kayani, particularly in respect to the afternoon shift. It came to his attention (Mr Solis told him) that a collection has already been undertaken by Ms Puth.

[27] As the Company intended to match the donations from employees, a meeting was arranged with Ms Leonardi and Ms Puth on 27 May 2020 to discuss the matter. Mr Capasso recalled the conversation as follows:

Ms Leonardi: ‘The company wants to assist the family and intends to match the contribution by employees. I understand that you may have completed a collection.’

Ms Puth: ‘I have coordinated it over the weekend with some other employees. I organised to buy some flowers. I am still wailing on some money owed to me by other employees.’

Ms Leonardi: ‘That’s really good that you collected, I appreciate that. What about the money you have been collecting from the other employees, not from the weekend?’

Ms Puth: ‘I have collected the money.’

Ms Leonardi: ‘How much have you collected?’

Ms Puth: ‘I am not sure, I think it is about $300.’

Ms Leonardi: ‘Can you ask the other employees if they can pool the money together?’

Ms Puth: ‘It is not my money, I can't tell the other employees what to do with the money.’

Ms Leonardi: ‘You need to go down and ask the employees for the money.’

[28] After this point, Ms Puth appeared animated and in an elevated tone said:

‘It is not my money, I can't hand it over to you. I can't handle this. I don't know what is going on.’

She then left. Ms Leonardi asked him to further deal with the matter. Mr Capasso said that at no stage did Ms Leonardi:

• criticise Ms Puth or what she had done;

• raise her voice or speak in an angry or animated fashion; or

• demand the money.

Her face was not red and the veins in her neck were not raised. Ms Leonardi did not say:

‘You can’t contact Akhlaq’s family and you have no right under the PVA roof to do what you have done and you have to stop it’.

[29] Mr Capasso said the intention was for both of them to report on their fundraising so that once all the money had been pooled, the Company was able to match it dollar for dollar.

[30] Mr Capasso said that as a result of the passing of their colleague, the Company arranged for counselling of anyone who requested it. Around 28 May 2020, Mr Capasso said to Ms Puth ‘Lilianne is aware that you requested access to counselling and will arrange an appointment with counselling for you’. Ms Puth replied ‘I want nothing to do with that woman. I will organise it myself.’

Mr David Croudace

[31] Mr Croudace’s evidence related to a heated conversation he overheard between Ms Puth and Ms Moroney on 27 May 2020, in which Ms Puth appeared very angry and critical of Ms Leonardi. Ms Puth kept referring to Ms Leonardi as ‘she’ or ‘her’ and claimed Ms Leonardi was angry with her for collecting the donations and sending flowers to Mr Kayani’s family and had demanded she hand over the money.

[32] Mr Croudace was drawn into the conversation by Ms Puth to get him to express an opinion about Ms Leonardi, particularly making reference to her culture. Mr Croudace responded by saying ‘I wasn’t there. I wasn’t part of the discussion’. Nevertheless, he had the impression that Ms Puth may have been treated unfairly. This was why he sent the email to Mr Edwards which read ‘Is this the company we are working for now?’. However, Mr Edwards told him the next day that Ms Puth’s account of the conversation was incorrect. He then assured Mr Edwards that he would be more thoughtful before sending a similar email in the future. However, he remained concerned about the discussion he had overheard.

Mr Jainer Solis

[33] Mr Solis was the Afternoon Shift Supervisor and stated that there was an expectation of the respondent to observe strict adherence to attendance on shift. Between 21-29 May 2020, Ms Puth had not, at any time, requested an extended break, paid or not, and was not permitted to do so. This applied to all employees and no employees in this period were given permission to have extended tea or lunch breaks.

For the applicant

Ms Nisset Puth

[34] Ms Puth came to Australia from Cambodia in 1999. She is married with a 12 year old son. Her husband also works in manufacturing and they have a mortgage on their home. Ms Puth joined Precision on 23 September 2003 as a casual labour hire employee and was made a permanent machine operator on 11 August 2004. She was promoted to Senior Quality Inspector (formerly Quality Assurance Supervisor) in 2009.

[35] Ms Puth described her role and said that in 17 years, she had received no warnings and had no disciplinary meetings. She worked closely with the Production Supervisor and had permission from her manager to use the printer to copy documents for herself and her co-workers. She also claimed that her meal breaks were often interrupted, or would be running late due to operational requirements. She was not a ‘clock watcher’ and would often stay back after her shift finished unpaid, to ensure the operations ran smoothly. Her role also involves her moving around the worksite frequently.

[36] Ms Puth said that shortly prior to the death of her friend of over 10 years, Mr Kayani, on 22 May 2020, she had also experienced losing two others close to her – a good neighbour in April 2020 and her brother in law on 11 May 2020. This made her very sad and not herself. She had trouble concentrating.

[37] Ms Puth understood that in Mr Kayani’s culture (as does her own), it requires fast attention when a person passes away so that their spirit will reach heaven. This is why she acted quickly to arrange for a collection to send flowers to the family. Ms Puth claimed that on 23 May 2020, she received permission from Ms Debbie Turner (another Quality Controller) to contact Mrs Kayani to send flowers for the funeral. She initially did this with three other co-workers and spent $200 on flowers herself. Ms Puth showed Mr Croudace and other co-workers a photo of the flowers. On 25 May 2020, other co-workers on afternoon shift found out about the flowers and insisted on contributing. The amount then exceeded $200 – about $531. Ms Puth asked Ms Turner what she should do with the extra money. Ms Turner had been in contact with Mrs Kayani, who had asked the remaining money be donated to the Heart Foundation.

[38] Ms Puth said that on 27 May 2020, Mr Solis told her that Mr Capasso had asked him to tell her to organise the collection. She told him ‘I’m sorry, I have done my part for Akhlaq already’. Shortly thereafter, Mr Capasso told her HR wanted a quick chat. She was concerned to let Mr Croudace know. Mr Capasso said ‘Don’t worry about David’.

[39] Ms Puth said that as she was upset in the meeting, she could not recall exactly the discussion. Her version is as follows:

Ms Leonardi: ‘We’ve heard that you’ve been collecting money for Akhlaq.’

Ms Puth: ‘No I didn’t collect money, I went on my own and get the flowers. People gave me money when they heard what I was doing.’

Ms Leonardi: ‘So you did that on your own personal level?’

Ms Puth: ‘Yes, I went and spent my own money but then when others heard this they wanted to share in it. I spent about $200 on the flowers.’

Ms Leonardi: ‘You can’t contact Aklhaq’s family and you’ve got no right under the PVA roof to do what you’ve done and you have to stop it.’

Ms Puth: ‘I didn’t collect, they gave it to me when they heard. I didn’t contact his family, Debbie did.’

Ms Leonardi: ‘Who is Debbie?’

Ms Puth: ‘Another QC.’

Ms Leonardi: ‘So you have money left over after buying the flowers?’

Ms Puth: ‘Yes’

Ms Leonardi: ‘How much money have you got?’

Ms Puth: ‘I can’t remember exactly but about $300, and we are donating the money to the Heart Foundation.’

Ms Leonardi: ‘Put the money you got in an envelope and give it to Sossio.’

Ms Puth: ‘No, because this money has to go to heart foundation because that’s what his wife wants. We’ve already agreed to give it to HF.’

Ms Leonardi: ‘You can’t give it to the heart foundation, it has to come to us and we do what his wife wants. This is the instruction, you have to put the money in the envelope and give it to Sossio.’

Ms Puth: ‘No. If you want that money, you can go and ask my afternoon shift friends.’

‘I became scared and upset, I was crying by this point. I said to Sossio: ‘I can no longer deal with this.’’

[40] When she left the meeting and returned to the QC room, Mr Croudace observed she was upset and asked what was wrong. She replied:

Ms Puth: ‘I just had a meeting with HR. She told me I can’t contact Aklhaq’s family, I can’t do what I’ve done with the flowers and I have to stop. She told me I can’t give the money to the Heart Foundation.’

Mr Croudace: ‘I don’t know what to say. You did nothing wrong, it was beautiful what you have done for Akhlaq.’

Ms Puth: ‘I’m not upset over how they spoke to me, I am upset because in my culture I need to do something peaceful and calm for Akhlaq’s spirit within 7 days to ensure his spirit reaches heaven.’

Mr Croudace: ‘If I knew that they were taking you upstairs for that, I would not have let it happen and would have stopped it.’

[41] Shortly after, Ms Moroney came into the QC room very upset. Their conversation was:

Ms Moroney: ‘What happened? Sossio came to my station and said you are upset about the money?’

Ms Puth: ‘I had a meeting with HR and they told me that I can’t contact the family or give the money to the Heart Foundation. Have I done anything wrong? The way HR spoke to me, I feel like I’ve done something wrong. I’ve never been so scared Jannine. I’ve never been spoken to like that, not even my own mother has spoken to me like that.’

Ms Moroney: ‘No you’ve done nothing wrong dear. We will do what Aklhaq’s wife requested and donate the money to the Heart Foundation. We’re not giving them the money.’

[42] Ms Puth believed Mr Croudace was in his office when she was having the conversation with Ms Moroney. However, you can hear conversations through a glass door.

[43] On 28 May 2020, Ms Puth transferred $331 to the Heart Foundation. The same day, counselling and time off was offered to her and others by Mr Capasso. When he later said HR had organised counselling, she replied ‘No, I will go to see my own doctor. I don’t want anything to do with her’.

[44] Ms Puth said that on 29 May 2020, Ms Emmanuel rang her around 3pm to say they were coming to the site to offer support for the workers at the loss of Mr Kayani. She asked a former Union delegate what to do:

Ms Puth: ‘The organisers are coming in. Do you think it is ok to let them in?’

Mr Banic: ‘It shouldn’t be a problem because they have their right of entry. Do you want me to let them in? I can do it.’

Ms Puth: ‘No I can do it, it’s ok.’

Ms Puth claimed she had not asked Mr Banic for permission and had not previously done so. Further, she was not aware of a policy regarding restrictions on visitors during COVID-19 and could not recall being trained on the policy.

[45] When they arrived, Ms Puth let Ms Emmanuel and Mr Evans in. She believed they would have seen the instructions about what to do and had complied. Ms Puth said that Mr Evans gave her a printed copy of an email chain which she had not seen before. It was about a meeting Ms Moroney was told to attend, but she should not do so without notice or details of the meeting. He asked her to hand copies to other members. She agreed to copy it and at around 8pm, she made about 10 copies and left them on the canteen table. She stated she did not ask permission to copy the document, because Mr Croudace had left for the day and she had not been refused a request to use the printer before. She did not believe the email was confidential and trusted the Organisers. She knew Ms Moroney had been receiving help from the Union about attending management meetings without notice or warning.

[46] From 1-10 June 2020, Ms Puth was feeling very stressed and anxious as a result of the actions of HR and Mr Capasso on 27 May 2020, and was grieving at the loss of her friend and the others in her life. She consulted a doctor and received a doctor’s certificate.

[47] Ms Puth said that on 16 June 2020, she was called to a meeting with Mr Edwards, Ms Leonardi and Mr Capasso. She attended with her support person, Mr Banic. Mr Edwards read through the allegations in the show cause letter, but she was not given an opportunity to respond. When Mr Banic interrupted, Mr Edwards said it was not the time for responses and she could do so in a reply meeting on 18 June 2020.

[48] At the 18 June 2020 meeting, Ms Puth responded to Ms Leonardi’s complaint of undermining her as follows:

‘I didn’t bully or harass Lilianne and I didn’t make any non-factual allegations about her. Sossio came to get me on that day and he told me that we were going to see HR but he didn’t tell me what the meeting was about. When we got there, Lilianne said to me that apparently I was collecting money from employees and she wanted to know where the money is. I tried to explain about the flowers that had been bought for Akhlaq’s funeral and that we were going to donate the rest of the money to the Heart Foundation under the memory of Akhlaq. Lilianne told me that I had no right nor permission to do what I had done and stated that I am not allowed to contact Akhlaq’s family. Lilianne told me I had no authority under Precision Valve Australia to collect the money from other workers, that I cannot give that money to the Heart Foundation, and that she stated I need to give that money to the company and the company will do what Akhlaq’s wife wants.

I told Lilianne that I did this on my own personal level, that I did not collect the money from others, that others on the afternoon shift wanted to share with what I did and gave me money. I did not contact his wife and that Debbie Turner had contacted Akhlaq’s wife and gotten permission from her to send the flowers and to donate money to the Heart Foundation.

Lilianne then instructed me to put the money in an envelope and give it to Sossio, which I refused to do. I told her that I could not give her the money as it belonged to my friends on the afternoon shift who had given it to me.

During the meeting, Lilianne raised her voice and her face went red and the vein on her neck was visible. I became upset and scared during the meeting, I cried and told Sossio that I could no longer deal with the situation and that I could not give them the money.’

[49] Ms Puth said there were two breaks in the meeting as she was upset and emotional when talking about Mr Kayani. At one point, Mr Evans challenged the reference to Mr Croudace overhearing her conversation with Ms Moroney. She said she did not want to make a complaint about Ms Leonardi and decided to let it go and move on.

[50] As to the allegation about her letting the Union Organisers in, she conceded she had done so. When shown the CCTV footage, she first queried if she could be seen, but then agreed it was her. As to the altered email allegation, Ms Puth firstly did not understand what it was about, but then denied ‘removing HR’s signature and inserting her name’. Ms Puth claimed that Mr Evans confirmed he was the one who altered the email. Mr Edwards asked her if she used the printer. She agreed she did and kept a copy and said ‘I normally ask permission’. When shown the footage in the meal room, Mr Puth did not want to answer Mr Edwards’ question ‘if she could be seen in the footage?’ because she wanted to know when the camera had been connected, as she believed the camera would only be on if theft was suspected from the meal room. She claimed that no one was told the camera was in use. At no time, did she say ‘No comment’. Ms Puth explained she only gave the email to others because Mr Evans asked her to and she did not consider it to be confidential.

[51] In respect to the excessive breaks allegations, Ms Puth responded:

‘I have lost a few people in my life including Akhlaq. My next-door neighbour passed away in April and my brother-in-law passed away in May. Each time Akhlaq comforted me and supported me and told me to take it easy and take extra breaks if I needed to. Akhlaq gave me permission on 15 April 2020 and 15 May 2020 to take longer breaks. I don’t recall the other two occasions. But you guys had been so kind and caring following Akhlaq’s passing that I thought you would be understanding if I took some extra time.’

[52] At the end of the meeting, Mr Edwards asked if she had anything further to say. She replied:

‘I cannot accept the bullying and harassment allegation, as I am not like that and how can I raise my son to be a good person when his mother has been accused of being a bully. Before I left home today, I saw my son’s award from school that was awarded to him for being a polite, respectful, and honest student. I cried when I saw it and said to myself at the time “but your mum been called a bully”.’

[53] Ms Puth believed that Mr Edwards did not want her explanations and only wanted yes/no answers. He said another meeting could be scheduled and when Mr Evans asked when a decision would be made, Mr Edwards said she would need to come for another meeting. However, Ms Leonardi interrupted and said there was no need for another meeting. Ms Puth said she did not receive a copy of the meeting minutes taken by Ms Leonardi. She was dismissed by letter on 23 June 2020.

[54] Ms Puth added that since April 2020, she had been feeling down and had trouble coping. She started calling her husband while on a break and sometimes this would mean the break ran over time. Her stress was made worse after 27 May 2020, and she may have taken some extra time on a break because she was upset.

[55] Ms Puth responded to Mr Capasso’s statement as follows:

(a) Mr Capasso did not tell her the Company was going to match the employee contributions dollar for dollar.

(b) She did not tell him she was waiting on money from others, but did state she collected the money for flowers. Rather, others gave her money when they learnt she had already bought the flowers.

(d) She said in the meeting that she had permission from Mrs Kayani to donate the additional money to the Heart Foundation. She could not give it back to the Company because it had already been sent to the Foundation.

(e) She looked at Mr Capasso and said ‘I can no longer deal with this’ and Ms Leonardi told him to go down and speak to the afternoon shift crew.

[56] In response to Mr Edwards’ statement, Ms Puth said:

(a) Mr Edwards did not play two of the four excerpts of the CCTV footage as he claimed.

(b) She did not say ‘I opened up the gate’. Rather, she said ‘if it was OK for me to open it up’.

(c) She did not say she did not know why the officials were on site. Ms Emmanuel told her; see: [44] above, and told Mr Edwards she did not think the Company would have a problem with the purpose of the visit.

(d) She did not meet Mr Evans and Ms Emmanuel in reception. Rather, she only opened the door to let them come through.

(e) She was on leave from 19 December 2019 to 28 January 2020, so she was not aware of the afternoon shift being ‘directly’ approached about the taking of long breaks. Nor had she seen any notice on the Notice Board to that effect.

(f) She and Mr Evans did not seek access to CCTV footage about breaks because they were not told of such footage.

(g) She denied that she was not ‘open and honest’ in her responses in the 18 June 2020 meeting. She had provided an explanation for each allegation on multiple occasions.

[57] In response to Ms Leonardi’s statement, Ms Puth said:

(a) No one was excluded from her collection. Mr Solis declined to contribute and she only took money from those who approached her.

(b) She did not tell Ms Leonardi that she was waiting for money for flowers.

(d) She did not say to anyone that Ms Leonardi slammed her fists on the table.

(e) She had not sought Mr Banic’s permission (to let the Organisers in); rather, she only asked his opinion as a former Union delegate.

[58] As to the ‘harshness’ of her dismissal, Ms Puth said:

(a) She has not found another job which is exacerbated by COVID-19. Her role at Precision is very specific and not relevant to other manufacturing jobs.

(b) Her dismissal has a big impact on her life both financially and emotionally. It will be difficult to support her son and pay the mortgage. With two incomes, she was financially supporting her parents in Cambodia. Now she may not be able to do so.

(c) She had flexibility with work at Precision which allowed her to share looking after her son before school. There is no one else who is able to do this.

(d) After 17 years at Precision, the Company and the workers were like her family.

(e) She was very good at her job and had never received any warnings and had not been counselled about her behaviour.

(f) She wanted to clear her name, particularly that she was a bully. Going back to work will prove all the allegations were untrue. She wants ‘justice on my side’. No one will employ her with these allegations against her name.

(g) She came to Australia to have a good life, to make a contribution and give back to the community.

Ms Puth attached evidence of a number of applications for employment she has made (Ex F).

Ms Jannine Moroney

[59] Ms Moroney has been employed by Precision for 31 years. For most of this time, she had been the workplace delegate, until stepping down in May this year. Ms Moroney had known Ms Puth for the 17 years she had been employed at Precision, and they worked together on shifts for around 10 years. Ms Moroney had never known Ms Puth to get into any trouble at work or attend any performance or disciplinary meetings.

[60] Ms Moroney said that on 27 May 2020 at around 4pm, Mr Capasso informed her Ms Puth was very upset and crying about the money collected from the afternoon shift for the family of Mr Kayani. Mr Capasso had said the money should be given to the Company. Ms Moroney replied:

‘What are you talking about? You are not getting the money as someone has been in contact with Akhlaq’s wife and she requested us to donate the money to the Heart Foundation in Akhlaq’s memory.’

Ms Moroney then went to the QC room where she observed Ms Puth visibly upset. She told her that she had been taken to a meeting with Ms Leonardi and not told what it was about. She had said words to the effect:

‘They are not getting the money. We will do what Akhlaq’s wife requested. If you don’t think you can look after the money and you think that you will be pressured to give up the money, then I can take it and hold onto it until we donate it to the Heart Foundation’. I further told Nisset that she had done nothing wrong.’

[61] As to the COVID-19 Policy, Ms Moroney only became aware of the Policy when she returned from sick leave in mid-June 2020. Management told her she needed to sign a clearance to say her leave was not COVID-19-related. She was not told anything about the Policy or asked to sign anything which stated she understood the Policy.

[62] Ms Moroney said that in July 2020, Mr Edwards had a meeting with the afternoon shift staff to explain how to correctly check their temperature and the need to inform management if the temperature was outside a certain range. They were all asked to sign a document that they understood how the thermometer worked. After this meeting, Ms Moroney asked Mr Edwards for more hand sanitiser in the factory. At first, this was denied, as it was said people were stealing it. A week later, more sanitiser appeared.

[63] Ms Moroney believed Ms Puth was respected and most of her colleagues have confidence in her work and had no issues if she was to return to work. Her work was always of a high standard.

[64] Ms Moroney did not agree that Mr Edwards was the only person who could let visitors in through the access door. It can be opened from the inside by anybody and only requires a passcode from the other side. Ms Moroney said she had frequently let Union Organisers onto site through the reception area. They would usually go to the canteen. The last time she had let Union Organisers in via the access door was during enterprise bargaining negotiations around August/September 2019.

Mr Richard Warren

[65] Despite the objections of Mr Brown, a statutory declaration was admitted into evidence from Mr Warren with the usual caveats as to relevance and that Mr Warren was not required for cross examination. Although Mr Warren held various management roles, such as Quality Control Manager, Assembly Division Manager, Continuous Improvement Manager and Business Support Manager responsible for HR, he retired over 10 years age. He knew Ms Puth for 7 years and found her to have been an exemplary employee.

[66] In my view, given the length of time Mr Warren had not been in the employ of the respondent, his comments about the policies and procedures of the Company about the use of the photocopier collections for staff and admission of Union Officials, could not be relevant to the events and policies applying in 2020.

[179] In my judgment, the outcome in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both the employee and the employer.

[180] Accordingly, application U2020/8991 is dismissed and these proceedings are concluded. I so order.

DEPUTY PRESIDENT

Appearances:

Mr A Aghazarian and Ms M Bolton appeared for the applicant.

Mr P Brown, Partner, Baker McKenzie, appeared for the respondent.

Hearing details:

2020.

Sydney:

7 October
8 October.

Printed by authority of the Commonwealth Government Printer

Nisset Puth v Precision Valve Australia Pty Ltd

[2020] FWC 7027

29 DECEMBER 2020

DECISION