Rebecca Possingham v Australian Postal Corporation - [2024] FWC 3358

[2024] FWC 3358

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Rebecca Possingham
v
Australian Postal Corporation

(U2024/8106)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 3 DECEMBER 2024

Application for an unfair dismissal remedy – postal delivery officer – misconduct – product from sex shop sent to co-worker – alleged dishonesty to investigators and breach of confidentiality – standard of proof – whether valid reason – procedural fairness – dismissal not unfair – application dismissed

Rebecca Possingham (Ms Possingham or the applicant) has applied to the Commission under s 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her dismissal by the Australian Postal Corporation (Australia Post, the employer or the respondent) on 21 June 2024.

Ms Possingham claims the dismissal was harsh, unjust or unreasonable. She seeks reinstatement or compensation.

Australia Post oppose the application.

The matter did not resolve by conciliation. I issued directions on 4 September 2024.

I heard the matter in person on 28 and 29 October 2024. Ms Possingham and Australia Post were legally represented, with permission.

Evidence

I received evidence from seven persons:

Rebecca Possingham (applicant);

Alisha Jury ( Postal Delivery Officer);

Caroline Broersma (Postal Delivery Officer);

Carah Broersma (Postal Delivery Officer);

Kobie Duffy (Postal Delivery Manager);

Wayne Walkom (Territory Manager – Delivery (SA); and

Jessical Miral (Senior Associate – Lander & Rogers)[1].

Some of the evidence (oral and written) strayed from factual matters into hearsay, opinion, assumption and commentary. I place reduced levels of weight on such evidence except where it is corroborated by direct evidence, uncontested or inherently believable. I am not bound by the rules of evidence but consider them to be a good and useful general guide.

Substantial disputes of fact arise. They are material to the determination of this matter. Central amongst them are:

an alleged discussion between Ms Possingham and postal delivery officers Sue Tregeagle and Alisha Jury outside the Modbury North Australia Post facility at approximately 7.30am on 21 March 2024;

a telephone conversation between Ms Possingham and Caroline Broersma on the evening of 5 April 2024; and

a conversation between Ms Possingham and Alisha Jury on 9 April 2024.

I deal with those issues in considering valid reason.

Issues of credit are relevant. I make general observations on the evidence.

Ms Possingham gave evidence in a personable but somewhat casual and animated manner. She occasionally appeared distracted when asked specific questions. During the latter parts of cross examination she was observed talking (mumbling) to herself. She was imprecise and indirect in some answers, and accepted, under questioning, that she did not have a particularly good recall of events.[2] The longer the cross examination occurred, the more evident these features became. Together with relevant inconsistencies, an overall impression of half-truths, deflection and implausible denial emerged.

I exercise a significant degree of caution in dealing with Ms Possingham’s evidence. It is not, of itself, a reliable basis for fact finding.

Ms Jury was generally an impressive witness. Under questioning she was coherent, consistent and largely unmoved. She gave unembellished evidence of her material role in the alleged misconduct. She was attentive to questions and appeared keen to answer with precision and not overstate or generalise. She was direct and exhibited good recall on key factual matters. This conveyed an overall impression of plausibility.

Ms Jury’s creditworthiness is contrasted with that of Ms Possingham. I prefer the evidence of Ms Jury over Ms Possingham where there is conflict.

Caroline Broersma (Mrs Broersma) was straightforward with good recall. She was a witness of credit.

I prefer the evidence of Caroline Broersma over Ms Possingham where there is conflict.

Carah Broersma (Ms Broersma or Carah) was direct, attentive to detail and had clear recall. Her evidence, limited though it was, can be relied upon.

Kobie Duffy was a conscientious witness and though occasionally vague in some responses, generally had reasonable recall of the investigation(s) she conducted. Aspects of her evidence were hearsay and she did not accompany her witness statements with notes taken during relevant interviews. This notwithstanding, her evidence does not give rise to significant factual disputes though her opinions about the fairness of the investigation and her reported findings are contestable in these proceedings.

Wayne Walkom is a long term manager at Australia Post with considerable experience including in making disciplinary decisions. His evidence was plausible though limited: he was a decision-maker and not a fact-finder.

It is apparent from the above that most of those involved in this matter gave evidence, other than a Postal Delivery Manager (Callum Bennett) and a Postal Delivery Officer Sue Tregeagle. Nothing turns on the failure to hear from Mr Bennett; no factual controversy exists over his limited role.

Ms Tregeagle’s position is somewhat different. Her evidence would likely have been material as she, Ms Jury and Ms Possingham, were dismissed for misconduct arising from the same event (an alleged joint plan on 21 March 2024 to anonymously send a sex shop product to Carah Broersma). However, the failure to call Ms Tregeagle did not create a lacuna in evidence as I have Ms Possingham’s and Ms Jury’s direct (conflicting) evidence, though hearing from Ms Tregeagle would have provided a third (and possibly) corroborating version of one or the others evidence.

However, no party sought, and I draw no adverse inference against either for not calling Ms Tregeagle. The evidence of Ms Miral is that Australia Post’s solicitors sought to obtain a statement from her, but she was uncommitted and then unresponsive. Ms Possingham’s representative advised, at the commencement of the hearing, that they were interested in calling Ms Tregeagle but had not made contact and did not have her contact details. Neither party sought, at any pre-hearing stage, a subpoena for Ms Tregeagle to attend. A suggestion by Ms Possingham’s representative at the start of the hearing that an order be issued to compel her attendance was made unreasonably late. It would have compromised the efficient and fair conduct of proceedings and potentially required the recalling of witnesses. It was not pressed.

For the avoidance of doubt, I do not consider it appropriate to take into account the unsworn and untested statement attributable to Ms Tregeagle which the investigator included in her report.[3] I reject the submission by Ms Possingham that I should do so.[4] Aside from it being unsworn and untested, it is also hearsay. It is Ms Duffy’s interpolation of what she says Ms Tregeagle had told her, not a statement by Ms Tregeagle. Even though it purports to place Ms Possingham in a discussion with Ms Jury and Ms Tregeagle at the relevant time, it is not a reliable basis for fact-finding or testing the conflicting versions of Ms Possingham and Ms Jury about any such discussion.

Facts

Employment

Ms Possingham was employed as a full-time postal delivery officer (a ‘postie’) from January 2017 until 21 June 2024.

She was based at Australia Post’s facility at Modbury North, in Adelaide’s north-eastern suburbs.

She has teenage children. Her job was her primary source of income.

As a postal delivery officer she would daily deliver postal items by motorbike within an allocated nearby round.

Ms Possingham routinely commenced at about 6.00am and finished around 3.00pm. Between 6.00am and 7.00am Ms Possingham would be at her workstation (called a ‘frame’) sorting mail for that day’s delivery. At about 7.15am she would typically make a coffee and perform a safety check on her motorbike in the presence of a supervisor to ensure its working order.

Then, at about 7.30am, Ms Possingham would take an approximately 10 to 15 minute ‘smoko’ break. She was a smoker and would usually have a cigarette. Smoking is not permitted inside the facility. A smoking area exists in a rear carpark. Ms Possingham sometimes had her cigarette in the rear carpark with other (smoking or vaping) posties whilst, at other times, she would do so at an adjoining (church) car park (where she commonly parked her car). In either case, she would routinely call her two teenage sons at about 7.40am to make sure they had caught a bus to school.

Upon returning to her frame, Ms Possingham would then continue to sort and bundle mail or parcels. She would leave for her delivery round at about 9.30am.

Other posties had a similar but not identical daily routine. Posties were permitted to take their longer (lunch break) before doing their round. Ms Possingham’s practice was to only take her ‘smoko’ break before her round, not the longer break.

Australia Post

Australia Post is a large Commonwealth government owned corporation providing postal delivery services nationwide. It delivers mail and parcels to commercial and residential premises. Its delivery services are undertaken by postal delivery officers who use varied transport forms including motorbikes and vans.

The delivery manager responsible for South Australia is Wayne Walkom. Reporting to Mr Walkom are postal delivery managers. These include one based at the Modbury North facility (Callum Bennett) and another at Port Adelaide (Kobie Duffy).

The Modbury North facility is managed by Mr Bennett to whom postal delivery officers report. Several administrative staff are also employed.

More men than women are employed as posties, including at Modbury North. In that sense at least it is, as Ms Possingham, Mrs Broersma and Ms Jury all described in their evidence, a somewhat ‘blokey’ environment. Whether that translates into a workplace characterised by bawdy commentary where women feel uncomfortable, as Ms Possingham suggested, is not a matter on which I need to make general findings. Mr Walkom did not think this was the case, but given his overall responsibilities, he spends little time at the facility.

What is relevant in this context is that Australia Post has policies directed against such conduct. These are in evidence and include:[5]

an ‘Our Ethics’ statement of values;

a ‘Group Harassment, Discrimination & Bullying (HDB) Policy’; and

‘Group Harassment, Discrimination & Bullying (HDB) Guidelines’.

All employees are required to comply with these policies as a condition of their employment.

It is not in dispute, and was accepted by Ms Possingham, that she knew of and had agreed to comply with the aforementioned policies.

Australia Post also has procedures concerning disciplinary matters. These include:[6]

an ‘Employee Counselling and Discipline Process’; and

‘How to Conduct a Disciplinary Inquiry: An Inquiry Officer’s Guide’.

Postal delivery officers at Modbury North have an allocated round in the nearby suburbs. Of the posties operating out of Modbury North, five are relevant to this matter:

Rebecca Possingham;

Alisha Jury;

Caroline Broersma;

Carah Broersma; and

Sue Tregeagle.

Ms Jury and Carah Broersma are young posties, in their early twenties. Ms Jury commenced in July 2023, approximately nine months before the relevant events; Ms Broersma in November 2023, approximately five months prior.

Ms Possingham, Ms Tregeagle and Mrs Broersma are mature persons with longer service.

Mrs Broersma is Carah Broersma’s mother. Mrs Broersma recommended her daughter for employment as a postie.

Deliveries to Sexyland, Modbury

When a postal delivery officer is temporarily absent (for example, calls in sick) that person’s round (or parts thereof) are performed by an existing postie in addition to their regular day’s work. Where the round of an absent postie is shared between more than one postie, it is called a ‘split’.

Round 9 (Modbury) includes a retail business, Sexyland. It retails sex products which are purchased in-person or online. The round 9 postie delivers to that address. At the time of the relevant events, the round was allocated to a postie, Mr Smith.

A factual dispute exists as to how Ms Possingham came to know that Carah Broersma was uncomfortable should she (Carah) be asked to, either temporarily (because of a split) or permanently, do the round that included Sexyland. It may have occurred by Ms Possingham and Carah being present during a discussion about a split on a day Mr Smith was absent (Ms Possingham’s version, but not recalled by Ms Broersma) or by Carah Broersma telling a co-worker that she would be uncomfortable delivering to the business if a change to rounds was permanently made (Ms Broersma’s version).

A related factual dispute is whether Ms Possingham had directly, prior to the relevant events, told Ms Broersma that she (Ms Possingham) would be prepared to do the Sexyland deliveries if Ms Broersma was allocated that round and didn’t want to (Ms Possingham’s evidence, denied by Ms Broersma). Given my hesitation in accepting Ms Possingham’s evidence I do not make this finding.

However, relevant to this issue, and not disputed, is the following:

Ms Broersma was, prior to the relevant events, uncomfortable about delivering products to Sexyland, Modbury;

Ms Possingham knew, prior to the relevant events, that Ms Broersma was uncomfortable doing so; and

prior to the relevant events, Ms Broersma had not done so nor been asked or directed to do so.

Events 21 March 2024

The Easter long weekend 2024 fell on 29 March to 1 April 2024 inclusive.

With Easter approaching, and prior to 21 March, Carah Broersma purchased two sets of (according to her evidence) Easter rabbit ears; one for her car and another which, (according to her evidence) for fun, she placed on the car of a fellow co-worker at Modbury North (not a person otherwise involved in this matter).

On a particular workday during March 2024 a group of staff (including Mrs and Ms Broersma) went outside and had a laugh at the rabbit ears on the car. There is no direct evidence of offence having been taken by the co-worker, or that these were or were akin to ‘playboy’ ears as Ms Possingham and Ms Jury suggested in their evidence.

On or about 21 March 2024, the posties regular ‘smoko’ break occurred around 7.30am.

A significant factual dispute material to the determination of this matter arises as to what happened between approximately 7.30am and 7.40am that day.

Australia Post submit that, during this time, Ms Tregeagle, Ms Possingham and Ms Jury agreed to play a return practical joke on Carah Broersma whereby they agreed to and ordered online a sexually explicit product from Sexyland to be delivered anonymously to Carah at the Australia Post facility. They intended, on the day following it being delivered and opened (but only then), to inform Carah that it was actually a prank from them.

Ms Possingham denies any involvement in an agreement to play the prank or in ordering the product.

I make findings on this factual dispute below.

Parcel delivery (3 April)

On the morning of 3 April a parcel addressed to “Karah Round 10” at Australia Post’s Modbury North street address arrived at the facility.

The parcel did not indicate that it originated from Sexyland.

The parcel was given to Ms Possingham (either directly by a delivery driver or placed in a tub of deliveries) because Ms Possingham’s daily round included the street address of the Modbury North facility.

Ms Possingham, who was at her frame, put it in her pile of parcels for that day’s sorting and delivery.

About thirty minutes later Ms Possingham picked up the parcel, saw that it was for “Karah”, walked across the room to Carah Broersma, who was also working at her frame, and handed it to her, simply saying that a parcel had arrived for her.

Mrs Broersma, who was working nearby and had seen the parcel delivered and subsequently given to her daughter, casually said to Carah, ‘that’s nice that someone has sent you a parcel’.

Noticing that her first name was misspelt and that the parcel had no surname but was addressed to her at “Round 10”, Carah Broersma assumed it was from a fellow workmate given its reference to her work round.

Carah started opening the parcel but feeling uneasy about doing so because it was unexpected, decided to do so in private.

She left the mail room, went to the lockers and opened the parcel. She saw it had a Sexyland card inside. She then saw that it was a packet of X-rated love heart confectionery, with sexually explicit messages such as ‘blow me’, ‘eat pussy’, ‘fuck me’, ‘big dick’, ‘strip me’ and ‘let’s fuck’. She was disgusted. Being from Sexyland, her immediate thought was that it was sent by a male colleague.

Carah returned to her frame in the mail room somewhat shaken. She told two male posties working next to her (one of whom was a sexual harassment officer) that she had received something inappropriate and “it wasn’t funny”. She was confused and upset but completed her daily round, hoping that someone would come forward and own-up to the delivery by the time she returned. No-one did.

Mrs Broersma, who had noticed her daughter upset, telephoned her that evening to find out what had happened. Carah agreed to show her mother the parcel before work the next morning and discuss what to do about it. Embarrassed by the delivery, Carah told her mother that she didn’t want the situation gossiped about or discussed in the workplace.

Workplace absence commences (4 April)

Prior to work on 4 April, Carah met Mrs Broersma and showed her mother the parcel. Mrs Broersma also considered it disgusting. She told her daughter that it should be reported to the manager, Mr Bennett. Carah’s immediate reaction was that she didn’t want men to know about it. They agreed to talk to a female sexual harassment officer, Ms Hallard, and did so.

With the assistance of Ms Hallard, Carah then reported the incident to Mr Bennett.

Remaining upset, she then went home. She remained absent from the workplace for the remainder of that week and at least the following week.

Mr Bennett advised the State Manager Mr Walkom of the parcel incident. Both agreed to wait to see if anyone came forward.

Neither Carah nor Mrs Broersma spoke to Ms Possingham on 3 or 4 April about the parcel. Neither knew who it had come from.

Ms Possingham noticed that Carah Broersma had not completed the day’s work on 4 April nor attended work the following day.

Telephone call by Ms Possingham (5 April)

Unsolicited and unexpectedly, at about 6.30pm on Friday 5 April (out of work hours) Ms Possingham telephoned Mrs Broersma.

There is a material factual dispute over what was said. Ms Possingham’s evidence was that nothing concerning Carah or the parcel was mentioned. Mrs Broersma’s evidence was the opposite. She stated that Ms Possingham raised the issue of the parcel, denied any involvement in its sending, expressed a desire to speak to Carah directly to tell her that, and when Mrs Broersma refused to give over Carah’s phone number, Ms Possingham asked Mrs Broersma to pass on her denial to her daughter, which Mrs Broersma agreed to do (whilst privately considering the call very unusual).

I reject Ms Possingham’s evidence and find that the phone call occurred according to the version advanced by Mrs Broersma. Aside from my credit findings, Carah Broersma’s evidence that her mother the next day told her about the call and passed on Ms Possingham’s stated denial corroborates Mrs Broersma’s evidence.

Ms Jury comes forward (9 April)

During the workday on 9 April 2024, Ms Possingham approached Ms Jury and asked her to go outside for a chat.

There is a material factual dispute over what was said.

According to Ms Jury:

Ms Possingham told Ms Jury that she had heard that she (Ms Possingham) was being blamed for the parcel because she had given it to Carah;

Ms Possingham told Ms Jury that she (Ms Possingham) had nothing to do with it;

Ms Possingham told Ms Jury that she (Ms Jury) was responsible, had to own up to what she had done and that she (Ms Jury) had better start “sucking up” to Carah and Mrs Broersma; and

Ms Jury was shocked to hear Ms Possingham disclaim any involvement, and told her that that was incorrect and that it was not fair to lay all the blame on her.

According to Ms Possingham:

she (Ms Possingham) told Ms Jury that she was annoyed that she (Ms Possingham) was being blamed for the parcel simply because she gave it to Carah; and

told Ms Jury that she (Ms Jury) had to own up to what she had done.

I prefer the evidence of Ms Jury. Ms Possingham’s version was self-serving and incomplete. I find that the conversation included Ms Possingham claiming that she was not involved and then telling Ms Jury that Ms Jury had better “suck up” to the Broersma’s, and Ms Jury then disputing Ms Possingham’s claim that Ms Possingham had not been involved.

Ms Jury went back inside and was shocked by the conversation and the sense that she was being left to take all the blame. She spoke to her union. She decided to tell Mr Bennett of her involvement and ask that he pass on a written apology to Carah.

Ms Jury wrote a handwritten apology. She told Mr Bennett that she was involved. She didn’t, at that stage, indicate who else (if anyone) was.

Mr Bennett reported to Mr Walkom that Ms Jury had come forward. Ms Jury was suspended the next day (10 April).

On 11 April Mr Walkom appointed Ms Duffy to investigate an allegation of misconduct against Ms Jury.

Ms Jury attended an allegations meeting on 17 April. At this meeting she admitted to ordering and paying for the parcel but also indicated to Australia Post, for the first time, that Ms Tregeagle and Ms Possingham had been present and were involved.

Ms Duffy then reported to Mr Walkom that Ms Possingham and Ms Tregeagle were allegedly involved.

Suspension and allegations letter (22 April)

On 22 April, Ms Possingham sent Mrs Broersma via text an invitation to an evening bonfire party to celebrate Ms Possingham’s birthday on 26 April. Mrs Broersma did not respond.

On 22 April, Ms Possingham, and separately Ms Tregeagle, were suspended. Australia Post sent Ms Possingham a letter to that effect. The reason was expressed as:[7]

“alleged inappropriate behaviour by you which, if substantiated, is inconsistent with Australia Post’s Our Ethics”.

The suspension letter went on to state:[8]

“CONFIDENTIALITY

We understand this is a difficult time for you, and you may wish to seek support of friends and colleagues.

However, it is important that you preserve the confidentiality of the Employee Counselling and Discipline Process to protect the interests of all parties affected. Within Australia Post you may discuss the matter with your union (including an AUR) or your nominated support person (who may be a colleague but may not be someone involved in any incident(s) relevant to the allegations). You may also discuss the matter with your partner and/or family members.

You must do everything possible to ensure that whoever you speak with, respects the confidentiality of the Employee Counselling and Discipline Process.

You may not discuss this matter with witnesses or other persons who may be interviewed as part of this process or anyone where there may be a conflict of interest, and that person will not be able to be your nominated support person, as this could improperly impact the Disciplinary Inquiry and the Process.

Australia Post takes seriously the importance of confidentiality in such matters. It is important that you understand that any breach of confidentiality will be reviewed and where appropriate managed under the Employee Counselling and Discipline Process.”

Later that day Ms Possingham sent Mrs Broersma a further text informing that she had been suspended. It read:[9]

“Hi Caroline, Hope your well and everything went well on your trip back to NZ. I’m not at work until further notice. I’ve been suspended with pay for an unknown reason. Catch up soon. Bec”.

Investigation (23 April)

On 23 April Mr Walkom appointed Ms Duffy to investigate allegations of misconduct against Ms Possingham (and, separately, Ms Tregeagle).

On 24 April Australia Post sent Ms Possingham an allegations letter advising of a scheduled meeting for 29 April.[10] The allegations (referred to herein as ‘the primary allegations’) were expressed as:

“On 4 April 2024, a package was delivered to Modbury North Delivery Centre addressed to Ms Carah Broersma as "Kara Round 10". Inside this package was a packet of lollies ordered from Sexyland which had lollies that included the phrases "Blow Me", "Sexy Ass", "Let's Fuck", "Eat Pussy", "Lick Me" written on them. You were involved in the planning of sending this package to Ms Broersma.”

The letter repeated the confidentiality obligation:

“Confidentiality and Victimisation

We understand it may be a difficult time for you at the moment, and it's natural to want to seek the support of friends and colleagues. However, it is essential that you keep the Disciplinary Inquiry confidential within our business and that you do not discuss it with colleagues, and in particular any witnesses or other people at Australia Post Group, or with Australia Post Group customers.

The people at Australia Post Group that you can talk to about the Disciplinary Inquiry are your support person (who may be a colleague or union representative), the Delegate and me.

If you do talk with a support person, please do everything you can to ensure they too respect the confidentiality of the process.

Confidentiality is important and we take it seriously at Australia Post Group. You can trust that we will keep the Disciplinary Inquiry and any information we receive confidential and will only disclose these matters when we need to.

We want to create an environment that's fair, respectful and safe for everyone at Australia Post Group. So please remember that any victimisation or inappropriate behaviour towards anyone else involved in the Disciplinary Inquiry won't be tolerated.

It is important to note that any breach of confidentiality or victimisation will be reviewed and, where appropriate, managed under the Employee Counselling and Discipline Process.”

Upon its receipt, Ms Possingham immediately called Ms Duffy asking who had made the allegations against her. Ms Duffy indicated that this would be discussed at the meeting.

On 25 April, Ms Possingham sent another text to Mrs Broersma advising that the planned birthday party for the following evening was cancelled and that false allegations had been made against her, but not by Mrs Broersma or her daughter. The text read:[11]

“Hi, Hope you’re enjoying the day. My apologies. I have had much thought about it and I have decided to postpone this Friday nights event until further notice. I have had alleged false statements made about me which I have had to go above the Union and contact my lawyer about it. Thats why I haven’t been at work. The allegations were not made by you or your daughter. Take care xx”.

On 26 April, Ms Possingham sent another text to Mrs Broersma informing her that it was her birthday. It read:[12]

“Happy Birthday to me. My beautiful sons are here with me and I got two great big squishy hugs from both of them. No Alicia. The card they gave me is fantastic. I do miss their tiny handprints in my cards. Have a great weekend!”

The allegations meeting scheduled for 29 April was cancelled that morning after Ms Duffy received a letter from Ms Possingham’s solicitor advising that Ms Possingham was unable to attend.[13]

On 30 April Ms Duffy wrote to Ms Possingham advising that the allegations meeting had been rescheduled for 2 May.[14] The confidentiality obligations were again repeated.

On 1 May Ms Possingham sent another text to Mrs Broersma which stated that she was sorry that Carah had been sent the parcel, that she (Ms Possingham) had been “dragged into” it, asked for “help” in the form of a “character/witness statement” and expressed a desire to rebuild the friendship. The text read:[15]

“Good Morning Caroline, Hope your well. As you may know I have somehow for unknown reasons been dragged into the disaster which involves Carah. I’m sorry to hear that someone has done this to her. Carah has not had an inclusive and welcoming start at MNDC at all and you should still make a complaint about those incidents. I need your help and if possible could you please write a character/witness statement because I know that you have known me long enough and well enough to know that I would not do such a terrible thing to anyone and especially Carah. I’m hoping that after my inquiry interview tomorrow that we can work on rebuilding our friendships and moving forward together. Take care Bec”.

On 1 May Ms Possingham’s solicitor notified a dispute in the Commission seeking particulars of the allegations.

Second allegations letter (2 May)

On the morning of 2 May, and knowing the allegations meeting was scheduled later that day, Ms Possingham travelled to the Modbury North (church) staff car park where she spoke to several employees asking them to provide her with character statements. This was reported to an official of the Communications Workers Union (Mr Bentley) who told Ms Possingham that she was acting inappropriately and should leave.

Later that same day, Ms Possingham (with a support person) attended an allegations meeting convened by Ms Duffy. Ms Possingham declined to answer questions based on legal advice. Ms Possingham denied that she had approached other employees to discuss the matter. This frustrated Ms Duffy who believed that Ms Possingham was being uncooperative. Amongst other matters, Ms Duffy had wanted to ask Ms Possingham about the text messages sent to Mrs Broersma, having become aware of them after interviewing Mrs Broersma as part of the investigation.

After hearing of Ms Possingham’s attendance in the car park that morning, and with the allegations meeting not progressing the matter, on 2 May Ms Duffy issued an additional allegations letter alleging breach of confidentiality and notifying a further allegations meeting for 7 May.[16] The further allegations were:

“1.On Monday 22 April 2024 at 4:18PM, you sent a text to Ms Caroline Broersma stating, “Hi Caroline, Hope your well and everything went well on your trip back to NZ. I’m not at work until further notice. I’ve been suspended with pay for an unknown reason. Catch up soon. Bec”. Ms Caroline Broersma is the mother of Ms Carah Broersma and a Postal Delivery Officer for Australia Post.

On Thursday 25 April 2024 at 12:53PM, you sent a text to Ms Caroline Broersma stating, “Hi, Hope you’re enjoying the day. My apologies. I have had much thought about it and I have decided to postpone this Friday nights event until further notice. I have had alleged false statements made about me which I have had to go above the Union and contact my lawyer about it. That’s why I haven’t been at work. The allegations were not made by you or your daughter. Take care xx”.

On Wednesday 1 May 2024 at 7:33AM, you sent a text to Ms Caroline Broersma stating, “Good Morning Caroline, Hope your well. As you may know I have somehow for unknown reasons been dragged into the disaster which involves Carah. I’m sorry to hear that someone has done this to her. Carah has not had an inclusive and welcoming start at MNDC at all and you should still make a complaint about those incidents. I need your help and if possible could you please write a character/witness statement because I know that you have known me long enough and well enough to know that I would not do such a terrible thing to anyone and especially Carah. I’m hoping that after my inquiry interview tomorrow that we can work on rebuilding our friendships and moving forward together. Take care Bec”.

On the morning of 2 May 2024, you were seen in the carpark of Clovercrest Baptist Church which is located next to Modbury North Delivery Centre. Employees at Modbury North Delivery Centre often use this carpark in the mornings to attend work. While in the carpark, you were seen speaking to Mr Gordon Fraser, Ms Tara Hammat and Ms Janine Smith, all of which are Australia Post employees.”

On 3, 6 and 7 May correspondence was exchanged between Ms Possingham’s solicitor and Ms Duffy concerning the allegations and investigation[17]. The allegations meeting of 7 May did not proceed based on a medical certificate forwarded by Ms Possingham’s solicitor.

On 3 May Ms Possingham’s solicitor took a statement from Ms Possingham. On 7 May that statement was sent to Ms Duffy for the purposes of the investigation. That statement is in evidence (and was adopted by Ms Possingham as true and correct).[18]

Ms Duffy continued the investigation, including speaking to persons involved in the alleged breach of confidentiality in the car park on 2 May.

On 14 May a directions hearing was held in the Commission[19] on the dispute notification.

Further particulars (16 May)

On 16 May Ms Duffy sent a letter to Ms Possingham with further particulars of the allegations.[20] The letter advised a rescheduled allegations meeting for 21 May. The further particulars were:

“Background

On 21 March 2024, at approximately 7:40AM, it is alleged that you were involved in a conversation with your colleagues Ms Alisha Jury and Ms Sue Tregeagle whilst on a break at the smoking area located in the Modbury North Delivery Centre carpark. During this conversation, the three of you discussed that Mr Carah Broersma's delivery round may be changing to include Sexyland. Ms Tregeagle suggested arranging for an explicit package to be sent to Ms Broersma as a practical joke. You and Ms Jury agreed, and you all discussed and encouraged the idea, leading to Ms Jury placing the order for a packet of lollies with explicit sexual phrases written on them to be delivered to Ms Broersma at work. The package was ordered during the conversation on 21 March 2024 using Ms Jury's mobile phone. After this conversation, you asked Ms Jury on several occasions when the package would arrive, or if she (Ms Broersma) had received the package as yet.

In respect of the allegations contained in my letter to you dated 2 May 2024, to avoid any doubt, it is alleged that you engaged in several breaches of confidentiality in not only sending several text messages to Ms Caroline Broersma, your colleague and Ms Carah Broersma's mother, but in discussing the matter with your colleagues Mr Gordon Fraser, Ms Tara Hammat and Ms Janine Smith.”

On 21 May Ms Duffy telephoned Ms Possingham to remind her of the allegations meeting scheduled for that day. Ms Possingham stated that it had ‘slipped her mind”. The meeting did not proceed.

On 23 May Ms Possingham’s solicitor provided Ms Duffy with a medical certificate for Ms Possingham’s absence at the 21 May allegations meeting, as well as a further written response and notes prepared by Ms Possingham.[21]

Having completed her investigation, Ms Duffy proceeded to prepare an investigation report.

Investigation report recommendation

On 30 May Ms Duffy completed the report. It is in evidence.[22]

Ms Duffy found the allegations (both the primary allegation and the alleged confidentiality breach) substantiated. The report also found that Ms Possingham had “attempted to deceive” investigators and had “fabricated events to deny her involvement”.[23]

Ms Duffy recommended dismissal.

The report was sent to Mr Walkom, and to Ms Possingham and her solicitor.

Ms Duffy’s involvement ceased. Sanction was to be determined by Mr Walkom.

Sanction meeting

On 4 June Ms Possingham, through her solicitor, requested a meeting with Mr Walkom to discuss sanction and procedural issues.

On 13 June, four days before the sanction meeting, Ms Possingham sent Mrs Broersma another unsolicited text. It repeated her “innocence”, claimed that she had been a “whistleblower” and, for the first time, accused Mrs Broersma of having “knifed her in the back”. It read:[24]

“Hi Caroline, Hope your all well. I helped do the groundwork to find out who had sent the parcel. I’m the whistleblower. I have given the report to my lawyer and I will be commencing litigation against Ms Jury. So take your knives out of my back. I’m innocent in this matter and always was and always will be. Have a safe day. Take care.”

As with the earlier texts, Mrs Broersma did not reply.

A meeting was held with Mr Walkom on 17 June at which time Ms Possingham and her solicitor attended.

Despite the disciplinary report’s findings, Ms Possingham made no admissions. In mitigation she put that dismissal would be inappropriate given the toll the investigation had taken on her. She expressed a willingness to be moved to another nearby facility and a desire to continue her job as a postie.

On 20 June Mr Walkom decided on dismissal. He did not consider the issues raised in mitigation persuasive. He adopted the findings and recommendation of Ms Duffy. He also formed the view that Ms Possingham had been dishonest in claiming that she had not approached potential witnesses when Ms Duffy had found that she had done so, and had shown no remorse. He considered this to have fundamentally eroded trust and confidence in Ms Possingham.

At around the same time, Mr Walkom (having received separate reports from Ms Duffy for each employee) decided that both Ms Jury and Ms Tregeagle would also be dismissed.

Dismissal

On 21 June 2024, by letter dated the day prior, Ms Possingham and her solicitor were advised of Australia Post’s decision to summarily dismiss Ms Possingham for “serious and wilful conduct”. Consistent with Australia Post’s internal procedures, the dismissal letter advised of a right to an internal appeal (a Board of Reference).

The termination letter read:[25]

“20 June 2024

Private and Confidential

Ms Rebecca Possingham
Postal Delivery Officer
Modbury North Delivery Centre

NOTIFICATION OF DISCIPLINARY DECISION

Dear Rebecca,

I refer to the recent Disciplinary Inquiry undertaken by Kobie Duffy into your alleged breaches of Australia Post's Our Ethics.

The allegation was that:

1.On 4 April 2024, a package was delivered to Modbury North Delivery Centre addressed to Ms Carah Broersma as "Kara Round 10". Inside this package was a packet of lollies ordered from Sexyland which had lollies that included the phrases "Blow Me", "Sexy Ass", "Let's Fuck", "Eat Pussy", "Lick Me" written on them. You were involved in the planning of sending this package to Ms Broersma.

It is alleged that in doing so, you acted contrary to your responsibilities as an Australia Post employee and breached the following sections of Our Ethics:

i.comply with all our policies and procedures - along with all of the laws, industrial awards and agreements that apply to your work [refer Our Ethics, Work practices and performance, General requirements, ethical standard 3.1.1 a)]
ii.always treat every employee, customer, contractor and supplier with courtesy and respect [refer Our Ethics, Work practices and performance, Respecting everyone, ethical standard 3.4.1 a)]
iii.contribute to a safe and healthy workplace that welcomes, values, and encourages different constructive opinions, perspectives, and backgrounds [refer Our Ethics, Work practices and performance, Respecting everyone, ethical standard 3.4.1 b)]
iv.read and understand the terms of our Harassment, Discrimination and Bullying Policy, and familiarise yourself with the consequences of non-compliance [refer Our Ethics, Work practices and performance, Respecting everyone, ethical standard 3.4.1 e)]

It's not acceptable to:

v.intentionally or recklessly engage in conduct that damages Australia Post Group's interests or public reputation [refer Our Ethics, Work practices and performance, General requirements, unacceptable behaviour 3.1.3 a)]
vi.act in a way that could cause, damage or harm to any workforce participant, or adversely affect relations in our workplace [refer Our Ethics, Work practices and performance, General requirements, unacceptable behaviour 3.1.3 b)]
vii.cause disadvantage, discomfort, embarrassment, or offence to other workforce participants at work, during out-of-hours activities or when using social media [refer Our Ethics, Work practices and performance, Respecting everyone, unacceptable behaviour 3.4.2 a)]

viii.discriminate, bully, harass (including sexually harass or stalk) anyone at work, during out-of-hours activities or when using social media [refer Our Ethics, Work practices and performance, Respecting everyone, unacceptable behaviour 3.4.2 b)]

I have received and read a copy of the Disciplinary Inquiry Report. I have also considered what you and your support person said during our discussion on 17th June 2024.

Based on the Disciplinary Inquiry Report and our discussion, I agree with the recommendation of the Inquiry Officer.

In view of the above, my decision is that your conduct in relation to the matters identified above constitutes serious and wilful misconduct and that you be summarily dismissed from Australia Post. Your dismissal will be effective from close of shift on 20 June 2024.

You will shortly receive a separate advice regarding any outstanding entitlements.

If you consider the penalty imposed in relation to your breaches of Our Ethics to be harsh, unjust, or unreasonable and wish that decision to be reviewed by a Board of Reference, you must complete the enclosed Application for a Board of Reference Review review form. The completed review form must then be lodged with Workplace Relations Coordinator, Board of Reference, GPO Box 1777 Melbourne VIC 3001 or alternatively email your application to [email protected] within 14 calendar days of the date of this letter i.e. by 3 July 2024.

If you wish to consider your rights in respect to alternative legal remedies including the time limits that apply under the Fair Work Act 2009, you will need to seek external advice.

Confidential counselling support is available to you through Australia Post's Employee Assistance Program (EAP). You can make an appointment with our EAP counselling providers Converge International by calling [phone number].

If you have any questions in relation to this letter, please contact me on [phone number].

Yours sincerely

Wayne Walkom
Territory Manager Deliveries SA”

Events following dismissal

Ms Possingham commenced an internal appeal. She discontinued that process after filing an unfair dismissal application in the Commission on 12 July 2024.

Following dismissal, Ms Possingham sought alternate employment. As at the date of hearing, she had attended four interviews but not yet secured a new job.

Separately, Ms Jury commenced an internal appeal against her dismissal. She was successful in having the sanction of dismissal set aside. She was re-employed in a different (lesser) role in another facility.

Submissions

Ms Possingham

Ms Possingham submits that the dismissal was unfair on substantive and procedural grounds.

She submits it was unfair because there was no valid reason.

On the first (primary) allegation of misconduct, Ms Possingham submits that she was not knowingly involved in planning or sending the parcel from Sexyland to Carah Broersma, and therefore did not engage in misconduct. She submits that her involvement was simply handing over the parcel which occurred in the course of her regular duties because a parcel had been delivered to her workstation for her to distribute internally in the usual way.

On the second allegation (confidentiality breach), Ms Possingham submits that she did not knowingly breach her confidentiality obligation because she was permitted to seek out a support person, was seeking character references from other employees and did so in the church car park which was not on the property of Australia Post. In any event she submits that the restriction placed by Australia Post prohibiting discussion of the matter with other persons during the investigation was unreasonable given that she was on notice of the risk of dismissal. The restriction compromised her right to defend herself. It is not misconduct to not comply with an unreasonable direction.

On the third alleged breach (dishonesty to investigators), Ms Possingham submits that she may have answered one question incorrectly to the investigator on 2 May, but that this was inadvertent because she was unwell and taking medication consequent on the investigation. Accordingly, she had not deliberately misled the investigator.

On procedural fairness, Ms Possingham submits that the dismissal was unfair because:

the primary allegation of misconduct was not particularised. It was only after her solicitor commenced action in the Commission that Australia Post provided the particulars of her alleged involvement. Australia Post had that information but withheld it from Ms Possingham, including on 2 May. Without such particulars she was ambushed and denied the opportunity to properly prepare for the allegation meetings; and

the conditions placed on Ms Possingham (that she not speak to other persons concerning the allegations whilst the investigation was under way) were unreasonable and prevented her from defending herself.

Ms Possingham submits that the absence of both a valid reason and the denial of procedural fairness individually and collectively characterise the dismissal as unfair.

In the further alternative, even if a valid reason existed, dismissal was a disproportionate response rendering the dismissal harsh. It was disproportionate because Ms Possingham did not devise the plan, order the product or pay for it . This was done by others. Her involvement, to the extent there was any involvement, was peripheral and not misconduct warranting dismissal.

On remedy, Australia Post is a large employer with multiple facilities from which posties operate, including in Adelaide’s northern suburbs. There is no reason why a reinstatement order should not be made.

If compensation is ordered, it should be at the upper permitted range given the improbability of Ms Possingham working as a postie for other businesses, the economic loss she sustained, her efforts taken to mitigate loss and the difficulty experienced in finding comparable employment.

Australia Post

Australia Post submit that the dismissal was not unfair because there were three valid reasons for dismissal, and Ms Possingham was afforded procedural fairness that included a fair investigation and disciplinary process.

The first reason was that Ms Possingham was actively involved in a plan to send a parcel of a sexual nature to a young female co-worker, in breach of her employment obligations set out in Australia Post’s Our Ethics statement of values and its discrimination and harassment policies. According to the employer, the misconduct was aggravated by the fact that:

Ms Possingham knew at the time that the recipient would likely be uncomfortable in receiving a parcel from Sexyland but agreed to the plan in large measure because that very discomfort would be evident; and

Ms Possingham continued to deny her involvement despite being informed of the findings against her (including being provided the disciplinary report) and showed no insight into her wrongdoing nor remorse.

The second reason is that Ms Possingham breached her obligation to keep the investigation confidential and not speak to, approach or otherwise interfere with other employees or persons who may potentially be involved with it. This obligation was known to Ms Possingham and had been repeated on multiple occasions. The obligation was breached. The obligation was, of itself, reasonable in that it protected the integrity of the investigation and limited the risk of persons being harassed or victimised for coming forward and disclosing what they knew about relevant events.

The third reason is that Ms Possingham was dishonest during the investigation when claiming that she had not approached potential witnesses when she had in fact done so. The duty to be honest and not mislead a workplace investigator is reasonable and necessary to enable a fair and accurate investigation.

The three reasons, both individually and collectively, constitute serious and wilful misconduct and were a valid reason for summary dismissal.

Australia Post submit that the investigation was thorough and fair. Information was not withheld from Ms Possingham. Given that three investigations concerning three employees relating to the same originating incident occurred in parallel, the information available to the investigator emerged over time. Only when it was apparent from the investigation processes that further details were available could further particulars be provided. This is what occurred.

There was no predetermination, evidenced by the fact that allegations were put in writing, and Ms Possingham was given time to respond in person and then in writing. Accordingly, the process was not rushed and both she and her solicitor were provided information in a transparent fashion.

Both the investigation and the subsequent consideration of sanction were conducted in a manner consistent with Australia Post’s disciplinary policies and procedures.

Dismissal was not a disproportionate response given:

the aggravating considerations that characterised the misconduct as serious and wilful;

that this was not a singular act of misconduct, but three; and

the factors raised in mitigation were weak and unpersuasive.

The decision to dismiss was made by a properly authorised and experienced officer. It was neither impulsive nor taken without considered thought.

Australia Post submit that the application is meritless and should be dismissed.

Consideration

No jurisdictional issues arise. Ms Possingham was a person protected from unfair dismissal (s 382). She served the statutorily required minimum employment period (s 382(2)(a)). Her annual rate of earnings did not exceed the high income threshold (s 382(2)(b)(iii)). Australia Post was a “national system employer” within the meaning of s 14. The application was made within time (s 394(2)).

Nor is it in dispute that Ms Possingham was dismissed (s 386).

This is not a matter where the Small Business Fair Dismissal Code applies.

The issue for determination is whether the dismissal was “harsh, unjust or unreasonable” and, if so (but only if so) whether it is appropriate to order a remedy by way of reinstatement or compensation.

Section 387 of the FW Act provides:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.”

Valid Reason (s 387(a))

An employer must have a valid reason for dismissal. It is the Commission’s task to determine if a valid reason exists. The reason(s) advanced should be “sound, defensible and well founded” and not “capricious, fanciful, spiteful or prejudiced.”[26]

In a conduct-based dismissal such as this, except where the Small Business Fair Dismissal Code applies, the test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. The Commission must itself make findings as to whether the conduct occurred based on the evidence before it.[27]

This principle is relevant in this matter because Australia Post conducted a workplace investigation. Whilst (for reasons that follow) I have concluded that Australia Post’s investigators had reasonable grounds for believing that the misconduct occurred, that does not dispose of the matter. It is the evidence before me, and inferences reasonably drawn from that evidence, which alone determines whether a finding of misconduct is made.

Where an employee is dismissed for misconduct, an evidentiary onus rests on an employer to establish that, on the balance of probabilities, the misconduct occurred.[28]

The standard of proof is the civil standard; proof on the balance of probabilities. Where misconduct is alleged, the standard requires “a proper level of satisfaction”[29] that the conduct did in fact occur. This is commonly referred to as the Briginshaw standard.[30] A proper level of satisfaction bears a relationship to the seriousness of the alleged misconduct. In the case of serious allegations, the civil standard requires more than mere satisfaction that it is more likely than not that the conduct occurred. Rather, it requires a proper level of satisfaction that the conduct did in fact occur.

This approach has been adopted by the Federal Court of Australia[31] and by full benches of the Commission[32] in dealing with unfair dismissal matters.

Australia Post summarily dismissed Ms Possingham for serious and wilful misconduct. The Briginshaw standard applies.

Alleged involvement in plan to send Sexyland product

I now deal with the first of the three reasons advanced by Australia Post: that Ms Possingham was actively involved in a plan to send a parcel containing a sexual product to a young female employee Carah Broersma, in breach of her employment obligations under Australia Post’s Our Ethics statement of values and its discrimination and harassment policies.

I am well satisfied on the evidence that Ms Possingham was actively involved with Ms Tregeagle and Ms Jury on or about 21 March 2024 in a joint plan to send a product from Sexyland to Ms Broersma, that Ms Possingham encouraged Ms Jury to proceed with the plan and that Ms Possingham, together with the other two, thought it would be amusing given that Ms Broersma was known to be uncomfortable with delivering to the Sexyland business and that Ms Broersma had some days earlier herself played a workplace joke by placing Easter rabbit ears on a fellow employee’s car.

I find that:

the plan was agreed by Ms Tregeagle, Ms Possingham and Ms Jury during the morning smoko break on or about 21 March. Based on the evidence of Ms Jury, it was Ms Tregeagle who likely first mentioned the idea but all agreed to it;

whilst Ms Jury selected, ordered and paid for the product on her mobile device she did so in the presence of Ms Possingham and Ms Tregeagle and with their encouragement;

Ms Tregeagle, Ms Possingham and Ms Jury agreed that the product should be low cost, and at the time of placing the order the three believed that Ms Jury had selected X-rated dice from the online product menu whereas she had mistakenly selected X-rated confectionery; and

when Ms Jury checked with Ms Possingham in the days following whether they should still proceed with the plan when the parcel was delivered, she was given the go-ahead.

I make these findings:

having made findings of credit and preferring the evidence of Ms Jury over Ms Possingham;

finding that Ms Possingham’s evidence was selective, inconsistent and implausible. Having in chief denied any knowledge of the plan, under cross examination Ms Possingham recalled for the first time a discussion with Ms Tregeagle on the morning of 21 March about Carah Broersma’s discomfort with Sexyland deliveries, whilst maintaining her denial that this had included a plan to order a Sexyland product or any discussion with Ms Jury about doing so;

Ms Jury had no reason to falsely implicate Ms Possingham. There is no evidence of prior hostility between the two or motive to do so;

Ms Jury did not abrogate her involvement and seek to transfer blame to Ms Possingham. In maintaining under cross examination that Ms Possingham was involved, Ms Jury continued to accept her material role in the plan; and

Ms Jury’s version to the investigator, in her witness statement and under cross examination generally remained consistent and plausible on the key aspects of the discussion.

I reject the submission by Ms Possingham that because she made a mobile phone call to her sons at 7.37am that morning that she could not have been involved in the alleged plan. Firstly, whilst seven minutes is not a long period of time, if the smoko commenced at 7.30am precisely the plan was capable of being agreed and the online order placed before Ms Possingham called her children. Secondly, the evidence is that the time for commencing a smoko was not strictly regulated. I have found that on 21 March Ms Possingham took her smoko at around 7.30am after the daily bike check, but not necessarily precisely to the minute. Thirdly, whilst Ms Possingham often had her smoko at her car, this was not always the case. In recalling under cross examination a discussion that morning with Ms Tregeagle, Ms Possingham’s own evidence placed herself at that time in the vicinity of the facility car park and not the church car park (where her car was parked). It was in the facility car park where Ms Jury stated that the plan was agreed and the product ordered.

In making these findings I have had regard to all the evidence and submissions before me but, to not add undue length to these reasons, I have not interrogated each minor disputed issue or dealt with matters of peripheral relevance. By way of illustration:

the prior gifting by Ms Possingham of a towel to female staff at the facility (including the Broersma’s). Whether made by purchase or voucher, an earlier act of thoughtfulness does not explain or mitigate a later act of misconduct;

Ms Possingham’s prior relationship with the Broersma’s. Ms Possingham had, at a prior time, informed Mrs Broersma (who was then looking for accommodation) that she might be interested in renting a house of a late family member and Mrs Broersma inspected the property but did not proceed to rent it. This adds no particular context let alone mitigation to the misconduct. Mrs Broersma’s evidence, which I accept, was that her relationship with Ms Possingham was professional but “a bit wary”[33]. Carah Broersma’s evidence was that there was “no relationship outside of work”[34]; and

Ms Possingham’s general workplace demeanour. Whether it was friendly and engaging (as Ms Possingham claimed) or unpredictable and “very nosy” (as suggested by Mrs Broersma[35]) neither compounds, explains or mitigates the misconduct.

I agree with Australia Post that the misconduct was aggravated by the fact that Ms Possingham knew at the time that Ms Broersma, as a young female postie with only five months experience, would likely be uncomfortable receiving a parcel containing a sexual product from Sexyland. Ms Broersma’s discomfort about delivering to Sexyland was known to Ms Possingham. It had been expressed some weeks prior. It follows that Ms Possingham knew that a product from Sexyland, particularly one sent anonymously, would likely be unwelcome and make Ms Broersma feel uncomfortable.

Ms Possingham and the others involved were not only indifferent to this fact but, I find, purposefully went ahead and agreed to the idea, in large measure because of the expected discomfort that would be evident. Ms Possingham was not unaware of this; as I have found, when the younger and less experienced Ms Jury asked her if they should proceed with the plan, she was met with a response along the lines of “not to worry, it’ll be alright, it’ll be funny”[36].

I reject the submission by Ms Possingham that she was a “mere bystander”.[37] Being knowingly concerned and encouraging the placement of the order was no passive association with what occurred.

Ms Possingham, as a more experienced employee of seven and a half years’ service, ought to not only have known that practical jokes, especially of a sexual nature aimed at a co-worker, are not funny or excusable on that basis, but to also have had the experience to pull back when Ms Jury expressed a momentary half-doubt. Ms Possingham did not do so, compounding her poor judgment.

These are material considerations that add an aggravating element to the seriousness of the misconduct.

Whilst it was not, in the abstract, misconduct for Ms Possingham to have handed over a parcel to Carah Boersma on 2 April addressed to her, it is relevant that:

at the time of doing so Ms Possingham knew or ought to have reasonably known that a parcel from Sexyland was likely to be delivered to Ms Broersma at her work address at around that time given that she and two other work colleagues had agreed to do so two weeks earlier;

Ms Possingham took no steps after the order was made to suggest to Ms Jury or Ms Tregeagle that they collectively reconsider the plan and cancel the order; and

Ms Possingham, in handing over the parcel to Ms Broersma, could have but did not alert her that it may be something ordered as a joke, that she may find it uncomfortable, and that it was not intended to be anything but a joke.

None of this crossed Ms Possingham’s mind because she was content to witness Ms Broersma’s discomfort upon receiving the parcel before the three would subsequently own-up to it.

Ms Possingham’s conduct on 21 March and continuing involvement up to and until handing over the parcel was purposeful and recklessly indifferent to the consequences of doing so. That she did not place the order, pay for the product or know that it was X-rated confectionery and not X-rated dice is beside the point. She knew the order was being placed, agreed to that course and was aware that the product selected was of a sexual nature.

I reject the submission that the conduct was not as serious as made out by Australia Post because “although sexual was not at the extreme edge of offensive material”.[38] Whatever the graduations of workplace sexual harassment may be, the conduct was known to be and intended to be taken as sexually embarrassing, and was objectively so.

I also reject the submission that the misconduct was not as serious because it was a response prank to an earlier prank by Ms Broersma to a different co-worker. Firstly, I have not found that the earlier motor vehicle rabbit ears prank, as childish as that may have been, was sexualised misconduct. Secondly, even if so, one act of misconduct does not warrant, explain or mitigate a different and overtly inappropriate retaliatory response.

I need not rely on the telephone call by Ms Possingham to Caroline (Mrs) Boersma on the evening of 5 April to make findings of her involvement. However, the unsolicited nature of that telephone call, the fact that it was made outside of work hours and designed to be private, the fact that the topic raised by Ms Possingham at her initiative was the parcel and her stated denial of involvement in circumstances where the Broersma’s had not alleged Ms Possingham’s involvement or knew who was responsible, creates an inference that Ms Possingham’s call was a crude attempt to start cosying up to the Broersma’s in her self-interest and put in place a trail of deflection and blame-shifting.

It is not possible to make a finding on who first conceived the idea of sending the Sexyland product as a practical joke. Ms Jury did not do so, and based on Ms Jury’s evidence that the idea was mentioned to her when she first spoke to Ms Tregeagle and Ms Possingham in the vicinity of the smoking area on 21 March, it is more likely than not that it was either Ms Tregeagle or Ms Possingham. Whilst I do not find to the relevant standard that Ms Possingham conceived the idea (and may well not have done so) and whilst she did not herself order the product, I have found to the relevant standard that Ms Possingham was actively and willingly involved in relevant stages of the agreement to and execution of the plan. Ms Possingham’s conduct was clearly in breach of Australia Post’s Our Ethics statement of values and its discrimination and harassment policies. Ms Possingham knew of these policies and they were a condition of her employment.

I find that the attempts by Ms Possingham to subsequently deny involvement and shift blame in the wake of the incident were unedifying and materially damaging to trust and confidence. Her false denials to the Broersma’s on 25 April and 1 May were denials directly to the mother and indirectly to her daughter who had been the target of the prank, and both of whom were fellow employees. Her text to Mrs Broersma on 13 June (after adverse findings were made but prior to sanction) was egregious. In it she not just falsely repeated a declaration of innocence but also declared that she had been a whistleblower. Ms Possingham’s outburst in that text, with its tone of righteous indignation, was, without reason, accusatory towards Mrs Broersma in that Ms Possingham accused her of having “knifed her in the back”. The evidence supports nothing of the sort; simply a finding that the Broersma’s had done no more than truthfully tell the investigator the little they knew including Mrs Broersma disclosing the 5 April phone call and subsequent unsolicited text messages.

Ms Possingham subsequently repeated those false denials to the investigator.

Ms Possingham’s conversation to Ms Jury on 9 April was also particularly egregious. Not only did she initiate the conversation to falsely deny involvement, but she sought to intimidate a younger and less experienced employee, who had played a material role, into accepting full blame. Her suggestion that Ms Jury ‘suck-up’ to the Broersma’s was a crude attempt at deflection and, once Ms Jury refused to accept full blame, Ms Possingham did the very same thing by sending unsolicited texts, a birthday bonfire invitation and a reminder about her own birthday to Mrs Broersma.

Ms Possingham’s involvement in the Sexyland product being sent to Carah Broersma, her subsequent attempts to shift blame onto others, and her false denials of involvement were all serious misconduct and a valid reason for dismissal.

Alleged breach of confidentiality obligation

I now deal with the second of the three reasons for dismissal advanced by Australia Post: that Ms Possingham breached her obligation to keep the investigation confidential and not interfere with employees or persons who may potentially be involved in the investigation.

It is readily apparent on the evidence and I have found that:

on 22 and 25 April, and 1 May 2024, Ms Possingham sent texts to Caroline Broersma. Ms Possingham and did so knowing that she was under investigation over the parcel incident. Texts on those days were sent after Ms Possingham had been notified by Australia Post in writing of the confidentiality obligation. Ms Possingham knew that the texts were sent to a fellow employee and the mother of the person who had received the parcel. Ms Possingham sent the texts knowing that she had earlier (via a phone call on 5 April) communicated with Caroline Broersma about the parcel and had asked that her denial of involvement be communicated to her daughter if she could not speak to her directly; and

on the morning of 2 May, whilst under suspension and knowing an allegations meeting was scheduled later that day, Ms Possingham travelled to the Modbury North car park where she spoke to several employees asking them to provide statements, and was warned off by the Communications Workers Union.

I have also found that Ms Possingham was advised of the confidentiality obligation on 22 April and reminded of it in writing on 24 and 30 April and 2 May. The confidentiality obligation permitted discussion with “the union”, “a nominated support person” or “a partner or family member” but expressly prohibited discussion with:

“someone involved in any incident(s) relevant to the allegations”; and

“witnesses or other persons who may be interviewed as part of this process or anyone where there may be a conflict of interest…”.[39]

Ms Possingham was also on notice that breaches of the confidentiality obligation would be “taken seriously” and “where appropriate give rise to disciplinary processes”.[40]

I find that the communication by Ms Possingham with Mrs Broersma on 22 and 25 April and 1 May, and then with staff in the car park on 2 May, was conduct taken in the full knowledge that her employer had imposed an obligation on her to not make such contact during the period of suspension.

I reject Ms Possingham’s submission that she did not breach the obligation because she was permitted to seek out a support person. In communicating with Mrs Broersma and seeking to pass on a message to Carah Broersma, and in soliciting statements from staff in the car park on 2 May, Ms Possingham was trying to influence the impact of the investigation on her. She was not scouting for a support person.

Nor does it matter that soliciting in the car park was not on Australia Post’s property. The confidentiality breach occurred because of what Ms Possingham did, not where she did it.

I now deal with the submission by Ms Possingham that the breach was not a valid reason because it was an unreasonable direction.

There are circumstances where a confidentiality direction may be so restrictive or unnecessary that it is not, in an objective sense, reasonable even if lawful.[41] Conversely, there are circumstances where such a direction is reasonable when necessary to ensure, so far as possible, the integrity of a workplace investigation and mitigate against the risk of interference with those who possess relevant information.[42]

The confidentiality obligation imposed on Ms Possingham was lawful. I also find that it was reasonable in the circumstances because:

it was not unrestricted. Ms Possingham was able to disclose relevant information to her union, professional advisers, family and support person;

the subject of the investigation was not trifling. It concerned alleged serious and wilful misconduct and sexual harassment;

the investigation concerned workplace matters and multiple employees. Three related investigations came to be conducted in parallel; and

the integrity of the investigations was a material interest for Australia Post to protect.

In failing to maintain confidentiality (including what the investigation concerned and that she was the subject of allegations), Ms Possingham acted contrary to a lawful and reasonable direction. The breaches were of a known obligation to which Ms Possingham, in her self-interest, was indifferent. They occurred on multiple occasions.

I take into account two contextual factors that count somewhat in Ms Possingham’s favour. Firstly, once the obligation was re-stated orally by Ms Duffy on 2 May, Ms Possingham did not again repeat the breaches. Secondly, Ms Possingham was soliciting what she said were character statements from staff.

Nonetheless, the conduct was in breach of the confidentiality direction. It had the potential to compromise the investigation. It was misconduct.

Alleged dishonesty to investigators

I now deal with the third of the reasons advanced by Australia Post: that Ms Possingham was dishonest during the investigation when claiming that she had not approached staff about the matter.

An employee’s duty of honesty and fidelity includes a duty to be truthful to workplace investigators.

In considering any such alleged breach it is relevant to draw a distinction between (on the one hand) an employee’s natural desire to defend themselves and present events in as favourable a light as possible and (on the other) the obligation to not positively deceive or mislead.

I accept the evidence of Ms Duffy that on 2 May Ms Possingham told her that she had not spoken to any person in breach of the direction. This was false. Ms Possingham knew, but did not disclose, that she had both spoken to and sent multiple texts to Mrs Broersma. Ms Possingham also knew, but did not disclose, that she had asked Mrs Broersma to pass on a message to Carah Broersma. Finally, Ms Possingham knew, but did not disclose, that that very morning (2 May) she had been in the car park soliciting statements from fellow employees.

It may have been only one question that was asked of Ms Possingham by Ms Duffy, but the response was false for multiple reasons.

In her evidence Ms Possingham agreed under cross examination that she had been dishonest to Ms Duffy.[43]

I reject the submission that this breach is explained or mitigated by the fact that Ms Possingham was unwell and on medication in the wake of the investigation. Unlike prior and subsequent scheduled meetings with the investigator, Ms Possingham made herself available to attend the 2 May meeting and had the benefit of legal advice before doing so.

I am well satisfied that Ms Possingham knew what she was being asked on 2 May and exercised free will in answering the way she did. She had responded to earlier questions by declining to provide details based on legal advice.

The answer concerning contact with other persons was false and misleading. It was misconduct.

Conclusion on valid reason

I have found that Ms Possingham’s involvement with Ms Tregeagle and Ms Jury in a parcel being anonymously sent from Sexyland containing a sexually explicit product to Carah Broersma was a breach of her employment obligations. I have found that aggravating circumstances existed which characterise the misconduct as serious and wilful. These include that Ms Possingham:

was an experienced employee who knew that the conduct was contrary to policy and would be unwelcome, but still participated in and encouraged it for reasons that included the very fact that it would make the recipient uncomfortable;

attempted to cover up her involvement by trying to ingratiate herself with the recipient and her family via making a false denial and sending unsolicited texts;

attempted to cover up her involvement by trying to impose the full burden of responsibility on a younger, less experienced, employee who had accepted material fault on her part but was not fully responsible; and

once having been found by the employer to have been involved, made unfounded and accusatory allegations blaming Mrs Boersma, a co-worker and the mother of the recipient, for her predicament.

This serious and wilful misconduct was, of itself, a valid reason for dismissal. Dismissal was not a disproportionate response. There was a sound, defensible and well-founded reason for dismissal.

I have also found that Ms Possingham:

during the investigation, knowingly and with indifference, breached confidentiality obligations which had been lawfully and reasonably directed; and

was dishonest to the investigator concerning whether she had breached her confidentiality obligation by speaking to other employees about the matter.

I have found that a valid reason for dismissal existed by reference to the primary allegation. Consequently, it is not necessary to determine whether the other alleged breaches, collectively or of themselves, constituted a valid reason. Were it necessary to do so, I would conclude that the two other breaches were interrelated and, when viewed together, were not as serious as the primary breach but were sufficiently serious to also provide a valid reason for dismissal amongst other available disciplinary options.

That a valid reason for dismissal exists weighs against a finding of unfairness.

Notification of the reason for dismissal (s 387(b))

Ms Possingham was notified in the termination letter (20 June) of the reason for dismissal (“your conduct in relation to the matters identified above constitutes serious and wilful misconduct”[44]).

The “matters identified above” concerned involvement in sending the Sexyland product. The earlier show cause letter (30 May) advised Ms Possingham that the employer had found both the primary allegation and the confidentiality breach sustained.

Accordingly, Ms Possingham was notified of two of the reasons for dismissal at the time of the dismissal. The third, the dishonesty allegation, was not expressed by Australia Post at the time of dismissal but was an operative factor in the mind of the decision-maker.[45]

Considered overall, s 387(b) is a neutral factor.

Opportunity to respond (s 387(c))

The evidence clearly establishes that Ms Possingham had an opportunity to respond at both the investigation and disciplinary stages.

Those opportunities were made available orally and then in writing. Australia Post allowed Ms Possingham to submit a written statement in writing (which she did) given her absence from all but one of the scheduled allegation meetings.

Ms Possingham attended in person on 2 May and in person (with her solicitor) at the sanction meeting on 17 June.

Considered overall, I do not find that Ms Possingham was denied an opportunity to respond or otherwise denied procedural fairness. I find that both the investigation and subsequent disciplinary processes were on the whole orderly, considered and had reasonable time frames. I reject the submission by Ms Possingham that the inquiry was “petulant and prejudicial from the outset”.[46] The evidence, when fairly considered as a whole, does not support such a finding.

I reject Ms Possingham’s submission that she was ambushed or not provided particulars in a sufficiently timely manner. Whilst I agree with Ms Possingham that Australia Post should have particularised the primary allegations earlier and without the need for a dispute notification to the Commission, had it done so as soon as Ms Possingham was first implicated it would have been acting purely on what Ms Jury had told the investigator. The employer’s initial communication provided limited but sufficient information to explain the suspension. It was not of itself unfair that Australia Post chose to speak to others before providing a greater level of particularity. Further, given this became not one but three investigations, there is some force in Australia Post’s submission that the particulars emerged during multiple interviews over a period of weeks.

Whilst the initial detail provided in the suspension and then allegations letter was scant, it put Ms Possingham on notice of the subject matter of the allegations. Materially, when further particulars were provided, Australia Post allowed sufficient time for an informed response and a consideration of that response.

I do not find that the investigation report or the decision to dismiss were pre-determined, or that Ms Possingham’s responses were only given cursory consideration. The documentary material in evidence, and the oral evidence of both Ms Duffy and Mr Walkom, belie this submission. Ms Duffy went to considerable lengths to ensure that Ms Possingham’s explanations were received and considered.

In considering procedural fairness, I also take into account that Ms Possingham had been expressly informed of the confidentiality obligation and the potential disciplinary consequence of the workplace investigation.

That Ms Possingham was provided an opportunity to respond and, despite some deficiencies, was not in an overall sense denied procedural fairness, weighs against a finding that the dismissal was unfair.

Opportunity for support person (s 387(d))

Ms Possingham was not refused a support person. She was advised of this right and attended a disciplinary meeting on 2 May with a support person and the sanction meeting on 17 June with her solicitor.

Section 387(d) is a neutral factor.

Warnings concerning performance (s 387(e))

Australia Post did not rely on past performance or conduct in dismissing Ms Possingham.

Being a conduct and not a performance based dismissal, s 387(e) is a neutral factor.

Size of employer’s enterprise (s 387(f)) and human resource capability (s 387(g))

Australia Post is a large business. It is an employer equipped to undertake and commission disciplinary processes and workplace investigations. It has established policies on workplace conduct, harassment and disciplinary matters. It has extensive human resources capability.

Sections 387(f) and (g) are neutral factors.

Other matters (s 387(h))

Australia Post rely on the fact that Ms Tregeagle and Ms Jury were both dismissed, and submit that the equivalence of sanction between these other employees and Ms Possingham is relevant to fairness.

Whilst there may be some circumstances where equivalence (or lack thereof) is relevant, I do not consider it material in this matter. The circumstances and conduct of Ms Possingham, and its relationship to her employment obligations, are the relevant considerations.

That other persons involved in the plan to send the Sexyland product were dismissed or that Ms Jury subsequently, through an internal review process, had her sanction varied, is a neutral consideration.

Conclusion on unfairness

I have found that Ms Possingham engaged in serious and wilful misconduct by being actively involved in a plan to anonymously send a parcel of a sexual nature to a young female employee Carah Broersma, in breach of her employment obligations under Australia Post’s Our Ethics statement of values and its discrimination and harassment policies. I have found this to have been a valid reason for dismissal. I have also found that subsequent attempts by Ms Possingham to draw employees into an attempt to deflect and deny her involvement compounded her misconduct.

I have found that Ms Possingham breached a confidentiality obligation about the investigation and was dishonest to the investigators about whether she had done so. Those breaches were also collectively a valid reason.

That Ms Possingham continued to deny her involvement, despite being informed of the findings against her (including by being provided the disciplinary report), indicates that she has shown no insight into her wrongdoing or expressed remorse.

Despite some legitimate criticisms of process, I have found that Ms Possingham was not, in an overall sense, denied procedural fairness.

Taking all relevant factors into account, Ms Possingham’s dismissal was not harsh, unjust or unreasonable.

She made a foolish error of judgement, was an experienced employee who ought to have known better, failed to cure the breach, falsely denied her involvement and then tried to impose the full burden of responsibility on others. Rather than own up to her partial involvement, Ms Possingham compounded the breach with deflection, avoidance and denial.

The consequence was dismissal and this was not unfair.

There being no unfair dismissal, no issue of remedy arises. The application is dismissed. I issue an order to that effect.[47]

DEPUTY PRESIDENT

Appearances:

W. Spargo, of Lander & Rogers, on behalf of Australian Postal Corporation, assisted by J. Miral

T. Bourne, of Camatta Lempens, on behalf of Rebecca Possingham

Hearing details:

2024.
Adelaide;
28 and 29 October.

Final written submissions:

Australian Postal Corporation: 8 and 25 November 2024

Rebecca Possingham: 20 November 2024

[1] Not required for cross examination

[2] Audio recording 28.10.2024 2.22pm

[3] R2 KD15 Report page 10 of 16

[4] Applicant’s Closing Written Submission paragraphs 44 to 50

[5] R5 WW1 – WW3

[6] R5 WW4

[7] R2 KD3

[8] Ibid

[9] R6 CB1 (emojis omitted)

[10] R2 KD4

[11] R6 CB2 (emojis omitted)

[12] R6 CB3 (emojis omitted)

[13] R2 KD6

[14] R2 KD7

[15] R6 CB3

[16] R2 KD11

[17] R2 KD8, 9 and 10

[18] R2 KD12

[19] By Thornton C

[20] R2 KD13

[21] R2 KD14

[22] R2 KD15

[23] R2 KD15 Report page 16 of 16

[24] R6 CB4

[25] R5 WW5

[26] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373

[27] King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213, [24]

[28] Edwards v Guidice (1999) 94 FCR 561, [6] - [7]

[29] Budd v Dampier Salt Ltd (2007) 166 IR 407, [14] – [16]

[30] Briginshaw v Briginshaw (1938) 60 CLR 336

[31] Edwards v Guidice (1999) 169 ALR 89, 92 per Moore J

[32] Parker v Garry Crick’s (Nambour) Pty Ltd t/as Crick’s Volkswagen[2018] FWCFB 279, [124] – [125]; Hill v Peabody Energy Australia PCI Pty Ltd[2017] FWCFB 4944, [15]; Heinz Company Australia Ltd v Green[2014] FWCFB 6031, [14] – [15]; Budd v Dampier Salt Ltd (2007) 166 IR 407, 14 - 16

[33] R6 paragraph 5

[34] R7 paragraph 5

[35] R6 paragraph 7

[36] R1 paragraph 9; Audio recording 29.10.2024 10.58am

[37] Applicant’s Closing Written Submission paragraph 14

[38] Applicant’s Closing Written Submission paragraph 13

[39] R2 KD3

[40] Ibid

[41] Goss v Health Generation Pty Ltd[2021] FWC 1751

[42] Balkan v Securecorp Pty Ltd[2017] FWC 5009; Dufall v Greyhound Australia Pty Ltd[2015] FWC 2684

[43] Audio recording 28.10.2024 3.27pm and 3.29pm

[44] R5 WW5

[45] R5 paragraphs 24 and 25

[46] Applicant’s Closing Written Submission paragraph 26

[47] PR781970

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