[2019] FWC 1195

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Richard Steel
v
Hitachi Power Tools Australia Pty Ltd T/A Hitachi Power Tools
(U2018/8328)

DEPUTY PRESIDENT SAMS

SYDNEY, 22 FEBRUARY 2019

Application for an unfair dismissal remedy – summary dismissal for serious misconduct – forwarding of confidential information to personal email and third party – contravention of policies and contract of employment – facts unknown at time of dismissal discovered subsequently – whether valid reason/s for dismissal – witness credit –procedural unfairness – facts not known at time of dismissal constitute a breach of contract of employment – conduct justified earlier dismissal – serious misconduct proven – serious misconduct not outweighed by mitigating factors or any issues of procedural unfairness – dismissal not harsh, unjust or unreasonable – application for unfair dismissal remedy dismissed.

BACKGROUND

[1] Mr Richard Steel had been employed by Hitachi Power Tools Australia Pty Ltd (‘Hitachi’, ‘HiKOKI’ or the ‘respondent’) since 2 October 2007 and since 26 November 2008 he held a senior position as Senior Product Manager. He was paid a base salary of $98,000 plus 9.5% superannuation with a fully maintained Company vehicle, mobile phone and laptop and access to an annual bonus scheme, according to a purported contract of employment, signed by Mr Steel on 16 July 2009. The significance of these dates will become evident later. Mr Steel was dismissed on 27 July 2018. The letter terminating his employment was expressed in the following terms:

Dear Richard,

RE: Your employment with HTAU

On 12th July 2018 I wrote to you to:

● advising you that HTAU had become aware that you engaged in serious misconduct on 1st July 2018 when you forwarded two confidential and commercial-in-confidence HTAU emails from your work email to your personal Hotmail address, and then forwarded same to a former HTAU colleague, Scott McCloud;

● inviting, and strongly encouraging, you to show cause as to why HTAU should not summarily dismiss you from employment with HTAU on the basis of the above; and

● placing you on paid suspension from HTAU until further notice.

After you requested (and HTAU allowed) an extension of time to respond, you provided a detailed response to the invitation to show cause by way of a letter to me from Sapphire Legal on 19th July 2018(Response Letter).

HTAU has closely and carefully considered the content of the Response Letter. I have enclosed a copy of the letter being sent by HTAU's lawyers later today, and this provides you with HTAU's responses to the issues and assertions you have raised.

It is deeply regrettable that you have put HTAU in this position. Your actions against the business have led to a total loss of trust and confidence in you by HTAU. Accordingly, as set out in the enclosed letter, I confirm that HTAU is summarily dismissing your employment as a consequence of your serious misconduct.

I also want to take this opportunity to make clear that, contrary to what has been asserted in the Response Letter, HTAU has not made this decision for any other reason than your serious misconduct, nor has HTAU or any person employed by HTAU engaged in any bullying, adverse action or any of the other allegations raised in the Response Letter.

Your summary dismissal takes effect today, 26th July 2018. I note that you have already been paid your salary through to the end of July. You will also receive any accrued but untaken entitlements in our next pay run.

You are required to return all HTAU property/assets in your possession, custody or control no later than 4pm, Monday 30th July 2018. Should these items need to be picked up HTAU will liaise with you about co-ordinating collection.

You will also note that you are required to provide HTAU with an undertaking as set out in the enclosed letter regarding deletion of confidential information. This must be provided to us no later than 5pm, Tuesday, 31st July 2018.

Regards

Hiromichi Tanabe Managing Director

In respect to signing the confidentiality undertaking referred to in the final paragraph above, Mr Steel did so on 3 August 2018.

[2] On 13 August 2018, Mr Steel (hereinafter referred to as the ‘applicant’) filed an unfair dismissal application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), in which he seeks orders from the Fair Work Commission (the ‘Commission’) awarding the maximum compensation as a remedy for his alleged unfair dismissal.

[3] The application was remitted to me for hearing and in accordance with my usual practice, I convened a further in person conciliation conference on 23 October 2018. As no settlement was reached, the Commission reaffirmed the directions previously issued and the hearing dates of 26 and 27 November 2018. At the hearing, the applicant was represented by Mr D Tolkin and Ms S Schreier-Joffe of Sapphire Legal, the law firm engaged by the applicant since he was first issued with a ‘show cause’ letter on 12 July 2018. The respondent was represented by Mr J Murphy, Managing Director, Australian Business Lawyers and Advisers. Permission was granted for the applicant to be legally represented, pursuant to s 596 of the Act; with Mr Murphy not requiring permission as he is a lawyer employed by a registered organisation of employers.

THE EVIDENCE

[4] The following persons provided statement and/or oral evidence in the proceedings:

• Ms Vanessa Alexander – HR Manager;

• Mr Hiromichi Tanabe – Managing Director;

• Mr Sina Zevari – a solicitor of Australian Business Lawyers and Advisers (not required for cross examination);

• Mr Alexander Streeter – National Sales and Marketing Manager;

• Mr Yang Joo Lee – IT Manager;

• the Applicant;

• Mr Andrew Sondermeyer – former employee (Assistant Product Manager); and

• Mr Scott McCloud – former employee (State Manager Queensland).

Respondent’s evidence

Ms Vanessa Alexander

[5] Ms Alexander set out her duties and responsibilities as HR Manager and membership of the Leadership Team, since she was first employed by Hitachi on 5 December 2016. It was Ms Alexander’s evidence that prior to August 2017, she had limited interaction with the applicant. At that time, he was temporarily appointed as National Sales and Marketing Manager and as part of the Leadership Team, he attended weekly meetings where their interactions became more frequent.

[6] Ms Alexander claimed that from around October 2017, the applicant became very defensive and argumentative in his interactions with her, both by email and face-to-face. While not being her preferred means of communication, Ms Alexander made greater use of email, rather than face-to-face discussions, as the applicant had a tendency to not provide direct answers or later change what he had said to her.

[7] Ms Alexander said that when Mr Streeter commenced as National Sales and Marketing Manager, the applicant returned to his previous Senior Product Manager role. Ms Alexander’s evidence dealt with her review of the applicant’s personnel file prior to the commencement of her employment. She had noticed a number of formal and informal disciplinary actions taken in respect to the applicant. In September 2016 another employee filed a written complaint as follows:

Hi Simon,

I would like to make a formal complaint about the way that Richard Steele has spoken to me today as 12:50 PM. Shane Fellowes present in the room and Caroline nearby.

He yelled out my name from his office and then proceeded to attack me about “what I am asking Caroline and Shane to do” and “if I know what is going on with the posters to do it myself”.

I did not appreciate any part of that attack.

I would like to know how Richard and Shane have got involved in this and why am I being attacked by Richard (for something I have been instructed to coordinate as part of the office improvement project).

I am fully aware that everyone in the business is doing more than what is in their job descriptions (I wrote them), not sure why he felt the need to explain this to me. I do not understand any part of that attack and would like this matter addressed.

The conversation ended with me saying thank you and walking away as it was getting heated.

Kind regards

Milanka Grabez

The Company’s response was a second warning letter for the incident which was said to be for ‘highly unprofessional and offensive’ behaviour. The reference to a second warning followed an earlier first warning in 2016, which was later revoked. On 30 September 2016, Mr Hideki Fujii, Finance Director sent the applicant the following email:

Hi Richard,

Thank you for your meeting yesterday.

As you correctly understand we all need to do our best to create a comfortable working environment for our staffs [sic].

To do that, one of the important element is to keep a good relationship among our staffs.

If we have a bad atmosphere in our organization, it may affect our morale, productivity, or even health.

You are in a position to be a model for other staff.

I ask your cooperation to create such comfortable working environment together.

Kind regards,

Hideki

[8] Ms Alexander identified a number of issues in early 2018 which resulted in disciplinary discussions with the applicant. The first concerned the applicant’s engagement of two casuals for an urgent order before Easter and his payment to them in cash. Ms Alexander claimed he did so without the knowledge or authorisation of the business. This matter came to the Company’s attention when he said at the 3 April 2018 Leadership Team meeting:

‘The Sydney Tools order had been very successful. Everyone worked well together. I called up to extra guys to come in and help out. I paid in cash from my pocket at the end of the night.’

Ms Alexander said that she was concerned by this admission and requested further information and clarification from the applicant. His reply email of 8 April 2018 responded as follows:

Hi Vanessa,

On Friday I submitted to Hiro multiple expenses that I have made over the last 4 weeks and all of which he has approved.

This included this cash payment in question of $300 ($150×2) that I made on Thursday 29/3 which I had discussed with Hiro before and after I had given this cash to Matthew & Christopher Morozoff.

Maria has received this expenses form and has advised me there is no problem with any of this.

I discussed this event at the last Tuesdays select Managers meeting with all attendees.

I then discussed this at greater length with you last Thursday 5/4 after your request.

I have explained to you all the very extreme and rare surrounding circumstances that occurred up to the evening of 29/3.

When discussing with you on Thursday 5/4 that I had discussed this cash payment with Hiro on the afternoon of Thursday 29/3 and that he had approved me making this cash payment (expenses method) you proceeded to get quite frustrated and began second-guessing my statements and referred to the incident you were investigating as a waste of your time.

I explained to you that I did not wish to waste any more of your time on this subject you are investigating nor do I want to cause you any more frustration as a result of answering your questions.

I explained the facts that Christopher & Matthew had been appropriately dressed for basic packing/storeperson work and that they were given a basic on-site briefing by me and Andrew Sondermeyer in the Kitting area and remained under our watch during their stay.

We assigned them simple packing tasks and throughout their short stay Either Reddy, Multiple Warehouse staff, Alex, Eddie and Hiro were always working very closely nearby if either of us could not immediately watch over the two Gentlemen.

I explained to you that they did approximately three hours each and I rounded this up to $50 per hour to ensure we had completely covered a fair rate of pay for the evening’s work.

Regards,

Richard Steel

[9] Ms Alexander said she had cause to meet the applicant again on 26 June 2018 to raise concerns she had that he had made inappropriate comments about her to other staff, which included the following information from two employees:

On 13 November 2017, our Warehouse and Operations Manager, Raghwan Reddy, said words to the following effect:

“After your email on Saturday, Richard called me and said ‘who does Vanessa think she is? She is HR I don’t report to her. How dare she say in an email that I need to provide a 5 minute update at the Managers meeting. She keeps banging on about respect for others. Who does she think she is? I’m over her and how she is trying to take over’.”

In June 2018, Mr Streeter said ‘I was speaking with Richard and he said ‘the MD hates dealing with HR – he hates lawyers and HR people, he would avoid dealing with Vanessa if he could… Vanessa was part of the team who didn’t really like Melissa she was the ring leader and I’m very sad to say she is making Mel feel uncomfortable and telling others not to talk to her’

[10] The applicant attended this meeting with a support person and witness. Ms Alexander identified some of their exchanges in the meeting as follows:

• ‘I want to have this discussion as a friendly warning to let you know that I am aware of comments you may have made about me, and to give you the opportunity to stop this behaviour if it is in fact happening’

• ‘If the comments continue I will put in a formal complaint, and I will ask a third party to conduct the investigation given that I would be the only person in the business who would normally conduct the investigation’

Mr Steel’s response was:

• ‘I need to be more careful what I say to people,’ and

• ‘If you need to take it further then do that and I will deal with it.’

[11] In May 2018, Ms Alexander advised Mr Tanabe and Mr Sakamoto (Finance Manager) of concerns with the applicant’s fuel and toll roads expenses for the year ending 31 March 2018. The matter was discussed at management meetings on four occasions and was being investigated when the applicant took personal leave on 1 July 2018.

[12] Ms Alexander said that the applicant’s employment was governed by a written contract of employment signed by him on 16 July 2009. The contract has detailed terms in respect to the confidentiality of the Company’s information and includes the following:

‘You must keep confidential and not use, copy or disclose to any person of HTAU’s or its clients’ or its suppliers’ Confidential Information, except with the Group’s prior written authorisation, in the proper performance of your duties, or as obliged by law.

…

You must immediately notify HTAU if you:

• Become aware of any breach of your obligations in this Agreement; or

• Are obliged by law to disclose any Confidential Information to a third party and must comply with HTAU’s lawful directions in relation to the disclosure.’

[13] A workplace Policy Handbook also contains this reference:

‘A condition of employment is that information provided or obtained in the course of your employment at Hitachi Power Tools remains confidential regardless of whether marked confidential or not.

…

In particular this refers to:

• Any information relating to products.

• Any information relating to marketing strategies or business plans.

• Any details pertaining to customers, suppliers, or business associates or staff.

• Any proprietary business procedures or methodology.

• Any third party information you may have access to as part of your employment.

• any price lists, customer lists, files or manuals that contain company information.’

Ms Alexander claimed that all employees at induction are provided with the Handbook and are advised that the policies are on the Company’s intranet. Ms Alexander believed the applicant was aware of the policies and that they were to be reviewed and updated in June 2018. The update advice was sent to all employees.

[14] Ms Alexander’s evidence then dealt with the applicant’s relationship with a former employee, Scott McCloud, who resigned in late June 2018 and who subsequently filed a s 739 dispute application in the Commission. Ms Alexander claimed that the applicant had told her on several occasions words to the effect of:

• ‘Richard is not just a colleague. He’s also a close friend of mine. Almost every night after Richard leaves the office he calls me to have a chat. We usually talk until he gets home’ and

• ‘Richard and I speak to each other on weekends.’

[15] Ms Alexander identified two emails the applicant had sent from his work email to his personal email on 1 July 2018 – and then forwarded to Mr McCloud. Mr McCloud had then attached them to his s 739 application. These emails had been sent from Ms Alexander to the applicant on 7 December 2017 and concerned Mr McCloud. She expressed her concerns as follows:

• Scott is putting fear into people unnecessarily-poor Ben is getting the same treatment as Kel and we don't suspect he has done anything wrong. Ben is a new starter with loads of potential, so I can imagine he would be questioning what is going on

• Scott is creating Hiro/ Hideki and Head Office Management to be something we are not - which is exactly what Simon had done previously and I have worked hard to break down those barriers and make sure people are aware that Hiro and Hideki are very approachable

• Should Kel and the other Reps talk when they are up at Christmas time, Kel will quickly realise that the other Reps aren't being asked for any information, therefore he may start to think he is being targeted

• Kel could potentially speak to Hiro or Hideki, and they would not be aware of anything he was talking about-what an awkward situation that would be

[16] The applicant responded the next day. After discussing her concerns with Mr McCloud he said:

Hi Vanessa,

Thank you for your time today, I have spoken to Scott today to clarify certain points you have raised and you and I discussed:

● The comments you stated Scott made ‘Hideki is looking at everything and requesting this information’ and Kel had interpreted this as Hideki.

○ He has stated to me that he stated to Ben & Kel ‘Head office is looking at everything and requesting this information’ and Kel had interpreted this as Hideki.
○ This is referring to the Call report process which Hiro and I discussed with Scott, Lee & Wade.

● The Comment ‘I’m getting my head beaten’ is vernacular Scott is using for expressing that everyone is being asked to submit a call report which Hiro and I discussed with Scott, Lee & Wade.

● You have stated that Scott is not willing to have a tough conversation.

○ Scott has numerous ‘tough conversations’ with Kel in the last quarter, some examples are below:

⋅ Verbal warning regarding email to Hiro, Scott & myself
⋅ Low sales in territory and organisational management
⋅ Following up on Product failure reports overdue requests from Hiro
⋅ Inappropriate derogatory language being used to describe HTAU staff
⋅ Timesheet discrepancies
⋅ Scott is preparing to discuss and put in writing very negative reports from customers with Kel

● Your [sic] concerned Scott is putting fear into people including Ben

○ Scott is responding to multiple complaints and he concerns he has with Kel’s performance and Timesheets and is managing that to his best ability with support from you and I
○ Scott is asking Ben to complete call reports in the same way he is approaching Kel as to be sure not to be biased against Kel
○ We have just received these from Scott – attached
○ Scott is asking for guidance now

● Your concern about Hiro & Hideki being reflected incorrectly are relating to the Call report process and Kel has interpreted that as Hiro and Hideki are checking up on him

○ I have discussed this with Scott to be very clear about this point and to be careful not to convey this as a personality issue

● Your concerns about an awkward moment developing at Christmas week and sales meeting should not be a concern now, however I will do my best to monitor and guide this into the right direction
● I have spoken to Hideki & Hiro about this situation and both advised me to stay neutral on this point which I am.

I had to clarify your statement – ‘I advised Hideki of the situation and he was very disappointed’ I initially interpreted that as Hideki was disappointed with Scott however Hideki has advised me this morning he is disappointed to hear your reports about Scott.

I hope the above can put some more context into the situation for all.

I ask you to continue to assist and guide Scott as I am in with this situation he is facing with Kel as it is becoming clear his reports of poor performance and timesheet discrepancies are becoming founded.

Again I appreciate the time spent to discuss with each other this issue and hopeful this can be done more efficiently hand these issues,

there is a lot of time being spent emailing each other!

Have a great weekend,

Richard Steel

[17] The applicant also sent the following email dated 8 December 2017 to Mr McCloud from Ms Alison Barwick, State Manager Total Tools Townsville:

Afternoon Scott,

Thank you for your response and getting back to me yesterday, we really do appreciate it here at a store level, sorry for my delay, I’ve been over at the new store all morning.

I will book you in for some much needed training on the 10^th of January with the guys and look forward to catching up with you that week. Our new store order goes through on the 2^nd of January, I’ll email you as soon as it goes through so you can keep an eye on it from your end. Basically the power tool fit out can start as soon as they arrive and are receipted but a good week for it would be the 15^th of January I have mentioned the 15^th (not the other date yet) to Kel, unsure if he has passed this on ?

As for Kel, I have spoken to David, we still need support in branch, if not more support in branch this point in time, considering the store move and grant opening even in February. What I do ask is that he starts making more productive visits and refrains from making inappropriate comments about myself or my staff

I will speak to Kel one on one on his next visit about his comments.

[18] Ms Alexander said that after discussing these developments with Mr Streeter, Mr Tanabe and Mr Sakamoto they determined to issue the applicant with a ‘show cause’ letter on the basis that:

Together, on 12^th July 2018, we formed the preliminary view that Mr Steel’s employment should be terminated due to serious misconduct. We formed this view on the basis that:

a) Mr Steel was a senior employee who was required to exercise his judgement in the best interests of HiKOKI;
b) Mr Steel had an obligation to maintain the confidentiality of HiKOKI’s confidential information;
c) Mr Steel had deliberately breached this obligation by disclosing confidential information to a former employee, Mr McCloud, in order to assist Mr McCloud in legal proceedings against HiKOKI;
d) Mr Steel’s conduct had the potential to damage

In forming the preliminary view, we also took the following factors into account:

e) The fact that Mr Steel was a long-serving employee;
f) the fact that Mr Steel had been subject to disciplinary action in the past;
g) Mr Steel’s previous performance and conduct; and
h) Mr Steel’s potential within the organisation.

Further, the ‘show cause’ letter said in part:

‘It has come to HTAU's attention that... on the 1st July 2018 you forwarded two HTAU emails from your work email to your personal Hotmail address, and then forwarded same on to a former HTAU colleague, Scott McCLoud. Copies of the relevant emails are enclosed. In addition to being HTAU confidential information, these emails also contain commercial-in-confidence information.

…

HTAU takes this issue very seriously, and considers that your conduct in forwarding the emails constitutes serious misconduct, by breaching your confidentiality obligations to HTAU, including (but not limited to) express directions relating to confidentiality set out in the enclosed policy extracts. From the outset, I want to be clear that it is HTAU's preliminary view that your employment should be terminated summarily on the above basis. However, before reaching a final view in relation to this matter, you are hereby invited to show cause as to why HTAU should not take this step.

You are required to provide any response to this effect to me no later than 10am, Monday, 16^th July 2018.

After this time HTAU you (sic) will make a decision based on the evidence before it as at that time. I therefore strongly encourage you to provide a written response in accordance with the above timeframe.’

[19] Ms Alexander noted the deadline for the response was extended three times, after requests from the applicant’s solicitor, who had been engaged to represent him. Ms Alexander summarised the applicant’s response of 19 July 2018 as follows:

(a) Mr Steel had no knowledge of the content of HiKOKI's workplace policies;

(b) HiKOKI had taken no steps to familiarise staff with its policies;

(d) Mr Steel was under no contractual obligation requiring him to comply with workplace policies or confidentiality obligations; (e) Mr Steel provided the Emails to Mr McCloud on the understanding that the disclosure was protected under the Protected Disclosures Act 1994 (NSW);

(f) there was nothing in the Emails that would constitute confidential information; and

(g) Mr Steel's conduct was an isolated event explained by very specific set of circumstances.

[20] After discussing the applicant’s response, the same managers rejected his explanations as unacceptable because:

(a) the Emails did contain confidential information;

(b) Mr Steel was aware of HiKOKI's workplace policies;

(d) Mr Steel did have a written contract of employment with HiKOKI

(e) Mr Steel was under a contractual obligation to comply with HiKOKI's workplace policies and confidentiality requirements; and

(f) it was unreasonable for Mr Steel to rely on Mr Cloud's advice regarding the Protected Disclosures Act 1994 (NSW) without seeking his own legal advice or raising the matter with HiKOKI.

[21] The letter of dismissal was then sent (see paragraph 1 above) on 27 July 2018.

[22] Ms Alexander said she subsequently investigated the applicant’s work email account and discovered that on the same day as the earlier emails sent to Mr McCloud, he had sent a further 30 work emails to his personal email, including a number of them which contained confidential and commercially sensitive information. The next day (2 July 2019) and up to 10 July 2018, while he was on personal leave, the applicant sent a further 10 emails to his personal email account.

[23] Ms Alexander added that the applicant had ‘deleted’ a number of these emails from his ‘sent’ folder. This discovery prompted instructions to the respondent’s solicitors, to prepare a letter to the applicant’s solicitors, seeking the undertaking refer to in paragraph [1] above.

Mr Hiromichi Tanabe

[24] As the Managing Director with responsibility for Hitachi’s operations in Oceania, Mr Tanabe was involved in discussions with Ms Alexander and Mr Streeter concerning the two emails sent by the applicant to Mr McCloud on 1 July 2018. He said he was deeply concerned that with a person in the applicant’s position would deliberately disclose confidential information to an external party. After discussing the applicant’s conduct and an appropriate disciplinary response, it was his preliminary view that his employment should be terminated. He instructed Ms Alexander to prepare the ‘show cause’ letter. On 19 July 2018, after he received the applicant’s response letter, he concluded his excuses were unacceptable. On 20 July 2018, he instructed Ms Alexander to prepare the termination letter and it was sent to the applicant on 26 July 2018. Mr Tanabe was also informed of the emails discovered after the applicant’s dismissal. He considered they also contained confidential and commercially sensitive information, which would also warrant the applicant’s immediate dismissal.

Mr Alexander Streeter

[25] Mr Streeter provided his recollection of the disciplinary meetings with the applicant on 24 April, 18 and 17 May 2018. In the later meeting, concerning excessive toll use, he had asked the applicant:

‘As per the email/ sent to Alex I would like to discuss the high charges on your etag, to make sure it is not a mistake. Compared to all other staff you have the highest charges of anyone in the company. . . . We have been instructed to check all company expenses, and this has come to my attention through the accounts department. The tag is for company purposes but yours seems very high? Do you think this is ok?’

‘Is it appropriate to use the toll gate close to your house on multiple occasions on the weekend when it's not for business purposes and expect the company to pay for this?"

He replied ‘Oh so you have done some checking already'

Mr Streeter replied: ‘Yes, we have checked the usage to understand why it was so high.’

[26] Mr Streeter claimed that in a meeting with the applicant on 20 June 2018, the applicant had said:

‘What's the story with Vanessa, I'm sick of her and HR I don't get it I just go along with it and say yes then when I get the chance to get back at her I stab her in the back. Even Hiro and all previous Japs don't get HR.’

Mr Streeter informed Alexander of these comments. At a subsequent meeting, Ms Alexander had said words to the effect of:

‘To start with this is not a formal investigation, however over the past 6 months I have had various staff come to me and report that you had been talking behind my back in a very malicious way. This is not acceptable. If it continues, then I will request the Managing Director to authorise an external auditor to investigate the matter further.’

[27] Mr Streeter referred to Mr McCloud’s resignation on 27 June 2018 and the emails subsequently attached to Mr McCloud’s s 739 dispute application to the Commission; see [14] above. Mr Streeter said that at no point did the applicant notify him, or seek his approval to disclose these emails to Mr McCloud.

[28] Mr Streeter said that the applicant was unwell on 2 July 2018 and took sick leave. On 5 July, Mr Streeter was told by a cleaner that the applicant’s office was unusually clean. When he went to look, he noticed it was very clean and all his personal items had been removed, including in the drawers. He found this unusual, as the applicant’s office had always been very untidy.

[29] Mr Streeter was involved in the management discussions concerning disciplinary action and the applicant’s dismissal. In his letter of termination the applicant was directed to return his Company provided vehicle, mobile phone and laptop by 30 July 2018. The applicant told him in an email he had a work commitment on 30 and 31 July and could not do so.

Applicant’s evidence

Mr Richard Steel

[30] The applicant is 37 years of age and has worked in the power tool industry for the majority of his working life. He set out his employment background with Hitachi up to the point in 2017 and 2018 when he became Acting National Sales and Marketing Manager. In this later period, he was involved in a significant organisational structure. As part of his duties, he had attended conferences in Japan and the United States and between 2008 to 2014 he made over 10 business trips to Papua New Guinea. He said he thoroughly enjoyed working for Hitachi and is deeply proud of his association with the Company.

[31] In mid-2017, at Mr Tanabe’s invitation, the applicant, was heavily involved in the rebrand of Hitachi to HiKOKI. He claimed he developed a very close working relationship with Mr Tanabe as a mentor and reported directly to him, despite multiple changes in his direct reporting line. The applicant said that since 2012, he had observed Hitachi’s sales and profitability dramatically decline year on year. There were multiple redundancies with the headcount falling from 70 to 40.

[32] The applicant claimed his three performance reviews in 2014, 2015 and 2016 were marked ‘exceeds expectations’ and he was routinely praised for his performance. He worked long hours, which he did not mind, as he always wanted the business to succeed. He set out a number of accolades and recognition of his performance. The applicant, through his solicitors, had sought the production of certain documents, including his performance reviews. These were not provided.

[33] The applicant responded to Ms Alexander’s reference to various historic disciplinary matters. As to the incident with Ms Grabez, he claimed he had never received the formal warning letter attached to Ms Alexander’s statement, which he observed, was unsigned. He denied he had spoken aggressively to Ms Grabez and had a supporting witness of the incident. He had never received any warnings, apart from one on 1 May 2016, which was later withdrawn. He believed Ms Alexander’s inclusion of these matters were not only untrue, and had occurred even before Ms Alexander’s employment began, but were designed to paint him in a negative light and tarnish his unblemished record of service and outstanding performance history.

[34] The applicant’s evidence as to his initial limited involvement with Ms Alexander is consistent with her recollection. However, he said he noticed and experienced a substantial difference in the way Ms Alexander behaved towards him in December 2017, after he was told by Mr Tanabe and Mr Fujii not to become involved with Ms Alexander’s handling of a ‘complex issue’, involving Mr McCloud and another employee Kelvin Curtis. He claimed Mr Tanabe and Mr Fujii told him they were concerned with the manner in which Ms Alexander was dealing with the matter and he should remain neutral.

[35] In December 2017, the applicant had arranged a meeting with Ms Alexander with a view to resolve a conflict between her and Mr McCloud as Mr McCloud had told him he was experiencing interpersonal issues with her. What followed, he claimed, was Ms Alexander treating him differently and becoming passive/aggressive towards him. He described what he said was her unreasonable conduct as follows:

(a) That I had been accused of making defamatory comments about Ms Alexander for a period of 6 to 8 months without Ms Alexander providing any particulars of the alleged comments whatsoever, so I could respond properly to the allegation ("Defamation Allegation");

(b) That in June 2018, shortly before the exchange referred to in item 30(a) above, I was berated by Ms Alexander for not reporting the location of a panic button within Hitachi's offices which she alleged amounted to a breach of staff safety. I explained at the time, however, that I was not in charge of the office renovation and had reported the whereabouts of the panic button to Mr Raghwan Reddy, Operations Manager at the time. I had a subsequent exchange with Ms Alexander by email which was entirely unnecessary;

(c) That on several occasions in 2018, I had reported my ongoing difficulties dealing with Ms Alexander to Mr Tanabe and felt that I was being unreasonably targeted and undermined, to which Mr Tanabe said: "that is how Vanessa goes about her business': or words to that effect;

(d) That on 20 June 2018, I was publicly humiliated at a management meeting by Ms Alexander for failing to complete a voluntary and anonymous staff engagement survey in front of other staff in words to the effect of: "Richard, your failure to complete the survey reflects poorly on you as a manager." Ms Alexander then sent me an email asserting the same thing to which I noted that I had other pressing work for Mr Tanabe and Mr Streeter which I needed to prioritise over a non-compulsory staff survey and indicated that I had made a public apology at the time. I made this apology as I was sick and tired of being embarrassed by Ms Alexander and felt that if I apologised, it would appease her, and I could move on.; and

(e) That, following the incident in paragraph 30(d) above, Ms Alexander sent me a calendar invite for a meeting without any agenda and when I questioned the purpose of the meeting, she replied by email as follows: "There is nothing for you to prepare, it's a discussion that needs to take place and please make yourself available". The meeting which took place is where Ms Alexander accused me of the Defamation Allegation.

[36] In addition, he said Ms Alexander excluded him from social events. He claimed Mr Tanabe had said to him words to the effect:

‘It is concerning that Vanessa was isolating selected managers from social events. I will watch this carefully.’

He further claimed Mr Tanabe said to him about his distress with Ms Alexander’s conduct:

‘I have noted this behaviour from Vanessa and other people were also receiving similar forms of treatment You are not the only one who has come to see me about her management style.’

[37] The applicant said that because of Ms Alexander’s ‘targeted and unexplained unfavourable behaviours’ towards him, he became so stressed that he went on sick leave from 2 July to 18 July 2018. During this time, he received the ‘show cause’ letter which he instructed Sapphire Legal to respond to on 19 July 2018. He believed the ‘show cause’ letter revealed that Hitachi had already decided to dismiss him.

[38] In addressing Mr Streeter’s suggestion that tidying his office was an intention to resign, the applicant explained that he had done so after attending a recent seminar about ‘time management’, in which it was said that a clean workstation maximised time efficiency.

[39] As to the email disclosure allegation, the applicant recounted a phone call conversation he had with Mr McCloud when he was working from home on 1 July 2018. Words to the following effect were exchanged:

Mr McCloud: I am resigning from Hitachi and lodging a case against them and Vanessa for workplace bullying and abuse as well as Mr Tanabe for witnessing this and doing nothing about it I need you to send me some information regarding Vanessa bullying and unreasonable behaviour.

Me: I would prefer not to get involved in this. I am having a difficult time with Vanessa and this will only make matters harder for me.

Mr McCloud: Richard, I have spoken to people at both Fair Work Commission and the Fair Work Ombudsman and been advised that you are protected from any reprisal under legislation if you provide this evidence to me and you have a legal obligation to do so and not conceal any unlawful activity. There are whistle-blower protections in place to ensure this kind of behaviour is exposed and if you fail to cooperate, you will be equally responsible in covering up the behaviour. I can email you the legislation if you want to look at it You are required to send me any information that shows targeted bullying by Vanessa.

Me: I will send you what I have Scott There are only two emails which are relevant.

[40] It was the applicant’s evidence that he then sent the two emails, because he had no reason to doubt Mr McCloud’s information that he had been told by two government bodies that as a whistleblower, he was protected by law and legally obliged to comply with Mr McCloud’s request. On 13 July 2018, the day after receiving the ‘show cause’ letter, the applicant emailed Mr McCloud to request a copy of the Protected Disclosure Act (PD Act). Having received a copy of the Act, the applicant became aware that the Act did not apply to his communications to Mr McCloud. He advised Mr McCloud accordingly. It was the applicant’s evidence that he was aware Mr McCloud believed he was informed about the Act, not by the Commission, but by a Mr Jerry Marsh of the Fair Work Ombudsman (FWO). Nevertheless, he had a genuine belief, at the time, that he was legally required to provide this email evidence. The applicant claimed that despite his Solicitor’s letter setting out his response and noting his genuinely held belief, Ms Alexander was looking for grounds to dismiss him. Further, his loyalty, 12 years’ service and unblemished conduct and performance record were ignored. He was not given any opportunity to address the allegations directly with Hitachi, or have a support person present.

[41] As to the further allegations, the solicitor informed the respondent on 3 August 2018 that these emails were personal and unrelated to his employment; rather they related to his exemplary performance and otherwise demonstrated Ms Alexander’s ‘targeted bullying’ of him. The applicant explained that as the risk of legal action was becoming more likely, he felt it was necessary to send this material to his personal email, as evidence which might be relied on in the future. In any event, he had never divulged their content to any third party and had later signed a confidentiality undertaking. The emails were no longer in his possession.

[42] It was the applicant’s evidence that he was not seeking to ‘cover his tracks’ by deleting these emails from his work email. It was his usual practice for many years as he had been told to do so because email storage space was constantly overloaded.

[43] The applicant responded to the evidence of the respondent as follows:

[44] As to his paying cash to the casual employees; see para [11] above, he claimed the arrangement had been known to Mr Tanabe, Mr Fujii and Mr Sukamoto and preapproved by Mr Tanabe when he had stamped his expense claim to reimburse the cash payment. In any event, it was known earlier in the month, that extra workers would be necessary for a large order to be dispatched at the end of the month. He noted that Ms Alexander continued to take issue with this matter, despite knowing he had acted appropriately, and with approval, and he had never been issued any warning over the incident.

[45] As to Ms Alexander’s claim of him defaming her, she had not articulated her concerns or provided him with any details, beyond generalised assertions. Therefore, he could not respond specifically to her allegations. He said his comments to others were no more than expressions of frustration with her behaviours towards him.

[46] The applicant believed that the issue of his toll usage was discussed in a ‘casual’ meeting with Mr Sakemoto and Mr Streeter in which he had explained:

‘I have been driving a company car since 2008 and this was the first time anyone has ever discussed with me road toll usage. During this time, I have had 4 company cars all of which were selected to be 60,000-kilometre leases based on my home address and average kilometres I had been driving. I have always had the same home address and generally driven to the same areas during my employment. If my toll usage has increased, it could be because of additional tolls being built around my home address since my employment commenced all those years ago.’

As he was never formally warned about this matter, it was irrelevant and a further example of Ms Alexander’s attempts constantly searching for a reason to dismiss him.

[47] The applicant claimed that his relationship with Mr McCloud was purely professional. He could not comment on what Mr McCloud had told Ms Alexander about their relationship. He agreed he did spend a large amount of time on the phone to Mr McCloud, outside work hours and on weekends. As he was his direct line manager, and as they were both regularly on the road, this was the most effective means of discussing work issues.

[48] In response to Mr Streeter’s statement, the applicant said that the two meetings concerning the cash payment issue and the toll usage (24 April and 17 May 2018 respectively) were not disciplinary meetings and no warnings were ever given. The applicant denied Mr Streeter’s version of the conversation said to have taken place at these meetings; see [X] above. The applicant particularly rejected Mr Streeter’s claim that he had referred to his wife as a ‘Jap’. This was absurd, as he always had deep respect for the Japanese culture and its people and strong friendships with many Japanese nationals. Under no circumstances, would he refer to Mr Streeter’s wife in such a derogatory and insulting manner. This reference was designed to present him in a negative light.

[49] The applicant denied that cleaning his office was unusual and relied on his explanation at paragraph [38] above. As to the delay in returning the work vehicle, he had used the term attending to a ‘work commitment’ loosely, as he was attending his cousin’s workplace to borrow a vehicle.

[50] The applicant said he was perplexed with Mr Tanabe’s immediate view as to his ‘deliberate disclosures’ to a third party, given the trust Mr Tanabe had placed in him over 11 years. Despite the claims of Mr Tanabe and Ms Alexander as to various discussions relating to his conduct and dismissal, no documents or notes had been provided of these meetings. It was the applicant’s belief that for many years, Mr Tanabe had preferred not to get involved in HR issues and took directions from Hitachi’s advisors. He relied on comments made when a previous employee (Mr Hatton) had been dismissed. It was unsurprising therefore that Ms Alexander recommended his dismissal. Mr Tanabe acted only on that recommendation, despite him being aware that Ms Alexander was looking for ways to get rid of him.

[51] The applicant described his long service in one specific occupation and the difficulty he would have in obtaining employment in the power tool industry, particularly given the damage to his reputation and professional standing by his unfair dismissal. He was without income for two months. As it was unrealistic to approach other companies in the industry, given his summary dismissal for misconduct, he had commenced looking for work in unrelated industries and secured employment as a New Vehicle Sales Trainee, with Toyota in early September 2018. However, as it is at entry-level, he is earning less than half than what he was earning at Hitachi. He continued to experience significant financial detriment which has impacted on his personal and family life. The applicant claimed Mr Streeter had attended his new workplace and asked questions about him, after telling a colleague he used to be his boss. This has resulted in him being queried as to why Mr Streeter ‘keeps asking questions’. These actions have been extremely upsetting and could damage his future employment at Toyota. It demonstrates ongoing bullying tactics by Hitachi.

Mr Andrew Sondermeyer

[52] Mr Sondermeyer resigned his employment with Hitachi on 13 or 12 July 2018, after seven years of service – the last two years reporting to the applicant. Mr Sondermeyer said the applicant was well liked and respected and the ‘go to’ man about Hitachi’s products, marketing, warehousing and customer engagement.

[53] It was Mr Sondermeyer’s belief that Mr Tanabe did not engage with staff on workplace issues and left these matters entirely to the HR Manager, more latterly, Ms Alexander. Mr Sondermeyer claimed Ms Alexander was very difficult to deal with; if she likes you, you are untouchable: but if she took a dislike to someone she made your working life very unpleasant which created significant tensions. He claimed that this was how she had treated the applicant.

[54] Mr Sondermeyer said that March 2018 was a poor business month for Hitachi. In respect to the cash payments to the two casual employees, he said they were sons of another employee, Mr Marazoff. Due to the tight deadline and with ‘all hands on deck’, Hitachi engaged the casuals, who were at all times wearing appropriate clothing, were properly inducted and supervised. The work was approved by Mr Tanabe. After learning of Ms Alexander’s allegation against the applicant about this incident, he wrote an email, at the applicant’s request, to her setting out what he described above. It was Mr Sondermeyer’s evidence that a few days later, Ms Alexander confronted him and apologised that he had been forced to write this email. He told her that he had not been made to do it and he was simply telling the truth.

[55] Mr Sondermeyer said that at the end of March 2018, he and Ms Caroline Junger another Product Manager, were called to a meeting with Mr Streeter about his own performance being affected by the applicant’s poor management style and leadership. Mr Sondermeyer’s response was that the applicant was a ‘fantastic’ manager, who had given him much guidance over the years. Ms Junger expressed a similar view. Mr Streeter then raised the business’s suspicion of the applicant’s dealings with Sydney Tools, a major client, and that there appeared to be ‘something dodgy going on’. He rejected the applicant’s alleged disloyalty. Both he and Ms Junger left the meeting very confused and annoyed. These incidents confirmed his view that both Ms Alexander and Mr Streeter wanted the applicant removed from business.

[56] Mr Sondermeyer claimed that he observed the applicant’s health deteriorate over several months from April 2018. He appeared broken, had lost his confidence and enthusiasm; his physical appearance had changed. As Mr Sondermeyer believed he would be next to be targeted and he was anxious and not coping well, he resigned on 12 July 2018, with a months’ notice in a letter which read:

To Mr. Alex Streeter,

Please accept this letter as formal notification that I am leaving my position as Assistant Product Manager with Hitachi Power Tools Australia.

My final day will be 10^th August 2018.

I would like to thank HTAU for the opportunities I have had during my time with the company. I wish all the best for the future of both the company and its staff.

I ask if you could please supply me a copy of my current leave entitlements.

If 1 can be of any assistance during this transition, please let me know.

Kind regards

Andrew Sondermeyer

[57] Mr Sondermeyer said that during the notice period he was feeling very stressed and took some sick leave and did not return to work. He was proud of his seven years at Hitachi, but felt he had no other option but to resign, as he was not as mentally tough as the applicant.

Mr Scott McCloud

[58] Mr McCloud was employed as Hitachi’s Queensland State Manager for about two years. Mr McCloud said he ultimately resigned on 27 June 2018 as a result of ongoing bullying and unlawful conduct by Ms Alexander. In his resignation letter, Mr McCloud, without naming Ms Alexander directly, claimed he had felt under duress and polarised by HR since November 2017. He identified two specific examples – when he was denied ‘cashing out’ some of his annual leave after being initially told it was not a problem and when he was refused participation in an online bullying course. The last two paragraphs of his letter read:

‘Due to the distressing circumstances of my resignation I feel it will be beneficial to my emotional wellbeing to have closure and pursue the case that Fairwork currently has open due to the events that commenced in November 2017.

After discussions with Fairwork I have been informed that once I resign this would no longer be just a workplace dispute case but would instead be a workplace damages case.’

[59] Mr McCloud commenced a section 739 dispute proceeding on 2 July 2018. In a witness statement submitted in those proceedings, Mr McCloud claimed he:

a) was pressured to make false and misleading statements against Richard ("Applicant") by Ms Alexander and was promised by her that if I helped get rid of the Applicant, I would be promoted to the position of State Manger for both Queensland and New South Wales;
b) did not wish to participate in a "witch hunt" led by Ms Alexander against the Applicant to bring his employment to an end in circumstances where there was no basis for being involved in such a process; and
c) felt my position within Hitachi had being significantly compromised because I would not go along with Ms Alexander's agenda to remove the Applicant and because of this she turned on me and made my work life extremely challenging.

[60] In the penultimate paragraphs, Mr McCloud described his relationship with the applicant as follows:

Vanessa Alexandra acted in such a way that was in my eyes unjust and is operating a witch hunt against Richard and once is would not be part of her agenda I was now the hunted and as history show by actions in November I December her agenda included taking steps to undermine my employment with Hitachi Australia

I have a professional and personal relationship with Richard, so the fact that Vanessa implied this to me 1 was discussed by Vanessa Alexandra's behaviour, unfortunately my moral compass would not allow me to make false statements against Richard Steel.

1 also feel that once I said no and wouldn't make up false story's my days at Hitachi where numbered. If 1 was never asked if I was getting bullied or harassed at Hitachi, my answer is yes and if the Managing Director who had full knowledge of Vanessa's actions stepped in and acted I would not have been forced to move on from a job 1 loved.

[61] Mr McCloud claimed another employee who had also resigned, had done so because Ms Alexander had been pressuring him to find evidence of any wrongdoing by him; the same tactic she had used with him. Mr McCloud believed other employees have left for similar reasons, including Mr Sondermeyer.

[62] It was Mr McCloud’s evidence that in the context of his s 739 proceedings, he made enquiries with the Fair Work Commission (the Associate to Deputy President Asbury) and the Fair Work Ombudsman (FWO), as to how documents could be obtained and relied upon in his litigation. Mr McCloud changed his evidence that it was not the Deputy President’s Associate he spoke to in early July 2018, but a Mr Jerry Marsh from the FWO. Mr McCloud claimed that Mr Marsh had told him that if another person was aware of, or had evidence of potential bullying, they had a duty to provide such information and were required to do so, and would be protected as a whistleblower under the PD Act. Mr McCloud conveyed this information to the applicant on 2 July 2018. He said:

I informed the Applicant that the provision of information relating to Ms Alexander's behaviours and other inappropriate conduct could not be used in any reprisal by Hitachi and that the Applicant had a legal obligation to provide me the relevant information. I recall speaking with the Applicant and telling him in words to the following effect: ‘The information I need is protected by specific legislation and you are protected by it as well as a whistle-blower. Hitachi nor Vanessa will not be able to do anything, and I have been told about specific sections in the legislation which say an employee has a legal obligation to provide evidence of any unlawful activities. I can email you the legislation.’

[63] Mr McCloud emailed a copy of the PD Act to the applicant on 13 July 2018. On 17 July 2018, the applicant asked him to confirm his previous understanding of his obligations under the PD Act. Mr McCloud confirmed that it was Mr Marsh from the FWO who told him the disclosure of the information was protected and he (the applicant) would be immune if he complained. He said that what it was an ‘honest mistake’ that he had earlier believed it was a person from the Commission or the Associate to Deputy President Asbury. He was entirely certain it was Mr Marsh, who informed him about the PD Act and how it operated. He had no reason to doubt Mr Marsh. As he had no legal advice, he genuinely believed what he told him was true.

[64] Mr McCloud described the applicant as one of the most genuine, hard-working and honest individuals he had ever known. When he had refused to cooperate with Ms Alexander’s agenda of finding a reason to terminate the applicant’s employment, she turned on him. He said he had numerous conversations with Ms Alexander who had said things such as:

‘Richard needs to go. If you help me find a way you will be next in line to manage NSW and Queensland as the State Manger’ and ‘if you want a future at Hitachi, then give me what I want on Richard or you will have no future.’

[65] Mr McCloud did not believe Mr Tanabe had any real input into the decision to terminate the applicant’s employment, as from his experience, the Japanese culture avoided confrontation.

In reply statements

[66] Ms Alexander responded to the applicant’s statement and said that:

(a) notwithstanding her reservations as to the applicant’s appointment as Acting National Sales and Marketing Manager, given his limited skills and experience, she was committed to supporting and developing his capabilities by agreeing to him attending a management course.
(b) There was a clear reporting line between the applicant and Mr Tanabe, not as the applicant described as a ‘dotted reporting line’.
(c) She had found no copies of the applicant’s performance reviews and he did not have an unblemished record of service.
(d) She did not have a ‘complex issue’ with Mr McCloud. He had wanted to terminate one of his team, Mr Curtis and she had disagreed. She did not receive any emails from the applicant about him remaining a neutral party.
(e) The difference of opinion between Mr McCloud was not an ‘interpersonal conflict’ with him; she was looking out for Mr Curtis and seeking to limit the risk of legal action by him against the Company.
(f) In a meeting with the applicant on 26 June 2018 she had acted leniently, by not making a formal complaint against him.
(g) She not berate or humiliate the applicant in the management meeting on 20 June 2018. The response to the staff engagement survey had been low. The applicant said he hadn’t prioritised it.
(h) She did not exclude the applicant from any work events, because she had not organised any, and had not been involved in a work social lunch.
(i) She had never targeted the applicant; but had taken management actions as set out in her earlier statement.
(j) The medical certificates provided by the applicant for 2 to 3 July, 4 to 6 July, and 9 to 13 July had never mentioned he was suffering from stress.
(k) At the time of the ‘show cause’ letter, the Company had not predetermined the applicant’s dismissal.
(l) She was unaware of any training or instructions from the respondent’s IT department to delete ‘sent’ emails.
(m) The applicant’s toll expenses were raised by the Finance Director following a full review of all business costs. She had not been involved in the review and only attended meetings to discuss the Company’s policies and any necessary changes.

[67] In respect to Mr McCloud’s statement, Ms Alexander said:

a) She was unaware of any complaints made by Mr McCloud about her conduct;
b) Mr McCloud was not singled out unfairly for not attending an anti-bullying seminar on 31 March 2018. In fact, Mr McCloud told her ‘sorry Vanessa, double booked myself chasing sales, and totally forgot.’
c) In respect to Mr Ben Roberts, she had very limited dealings with him as he was based in Queensland. He and Mr McCloud were close and considered ‘each other mates, rather than manager/employee’.
d) She would never speak to anyone in the manner claimed by Mr McCloud. In 2017, Mr McCloud was never in contention for the New South Wales or Queensland State Manager’s role. In fact, it was the applicant who had advised management that a large client would not deal with Mr McCloud, as it was unhappy with his performance.

[68] In respect to Mr Sondermeyer’s statement, Ms Alexander said:

a) Mr Sondermeyer was in a very junior role and would not have been privy to the top level issues and discussions of management. In the end, Mr Tanabe makes the final decisions after consultation with the Management Team.
b) She had very limited interaction with Mr Sondermeyer – mainly payroll and child-support payment issues, training and fire safety.
c) She did not tell Mr Sondermeyer that she was concerned he has been forced to write the email in support of the applicant. She had not called him to her office, but rather, in passing, she had said:

‘Thank you for sending me the written statement regarding the Sydney Tools Order. There was however no requirement to send that to me as I wasn't requesting any statements and you shouldn't have been asked to be involved. I'm sorry that you were asked to do that, we are merely asking Richard some questions about that day.’

[69] Mr Tanabe responded to the applicant’s statement evidence as follows:

a) The applicant’s duties were not ‘expanded’ in relation to product training. Rather, he had directed him to concentrate on these duties.
b) He had no problem (and has no problem) with Ms Alexander’s performance of her job. He had told the applicant to remain ‘neutral’ in the Curtis matter, as he was aware he and Mr McCloud had a close relationship. There was no ‘difference in opinion’ between Mr McCloud and Ms Alexander, as Mr McCloud was handling the Curtis matter ‘100% the wrong way’.
c) The applicant’s dismissal had nothing to do with any work related conflict between Mr McCloud and Ms Alexander.
d) He had not made any criticism of how Ms Alexander was handling her HR job.
e) He denied that the applicant’s dismissal had been determined before he had made any response to the ‘show cause’ letter.
f) He rejected the assertion that he did not get involved in HR. He is always heavily involved in HR issues, and any decisions on these matters are always based on careful discussion with the Management Team.

[70] Mr Streeter responded to the applicant’s statement and said:

a) He recalled in the meeting arising from the applicant’s comments about Ms Alexander, that the applicant had said words to the effect ‘I’m sorry. I won’t do it again.’
b) He had not witnessed Ms Alexander ‘berate’ the applicant.
c) In respect to the cash payments made to the casuals, he noted that the two casuals were engaged on the 29 March 2018 and the applicant’s expense claim was made on 24 April 2018.
d) He denied the assertions in paragraphs 59, 67-70, 76-78 of the applicant’s statement.
e) He was unaware the applicant was working at Toyota Chatswood. In fact, he had purchased two Toyota cars from the dealership. He first visited the dealership on 4 November 2018 and later booked a test ride on 11 November 2018. On that day, he noticed a Hitachi display stand in the showroom and told a Mr Olan that he worked for Hitachi. Mr Olan told him that they had a new guy who used to work at Hitachi. Mr Streeter said ‘really, who’s that?’ When Mr Olan said Richard Steele, they had the following conversation. ‘Really, he used to work for me’.

[71] Mr Streeter responded to Mr McCloud’s statement and claimed he was told by him that he had resigned because he had found another job, with higher pay and less travel. Mr Streeter said that Mr Tanabe was always involved in staffing issues and discussions. He denied the assertions in Mr Sondermeyer’s statement at [6]-[9], [13], [14], [16]-[21]. The Company had been reviewing Mr Sondermeyer’s pay at his request around the time he resigned and during a discussion it was said:

Mr Sondermeyer: ‘I'm resigning.’

Me: ‘We are still reviewing your salary.’

Mr Sondermeyer: ‘I’ve found another job with more money.’

Statement of Sina Zevari

[72] In respect to Mr McCloud’s evidence that a Mr Jerry Marsh from the FWO had informed him about the person’s obligations under the Protected Disclosures Act, Mr Zevarihad cause to contact Ms Elishka Sheldy, a lawyer at the FWO. He asked Ms Sheldy whether the Ombudsman employed a person named Mr Jerry Marsh around July 2018. Ms Sheldy undertook internal enquiries and later advised him that:

‘There is no record of a Jerry Marsh or similar name working at the Fair Work Ombudsman. If he is a Fair Work Inspector he would have had to identify himself as such to the person you are talking about.’

[73] A follow-up letter from the Ombudsman advised:

The Information Access Team at the Fair Work Ombudsman considered your below email today.

We have made some internal enquiries and can confirm that no-one by the name of "Jerry Marsh" or various iterations of that name, was employed by the Fair Work Ombudsman in 2018.

Cross Examination of Witnesses

[74] In this section I will endeavour not to replicate the statement evidence of the witnesses, but refer to their salient evidence in cross examination.

Ms Alexander

[75] In cross examination, Ms Alexander said that at the time, she understood she had a good working relationship with the applicant. She was not aware that he had raised concerns about her conduct with anyone. Ms Alexander categorically denied she had ‘singled out’ the applicant in a meeting concerning staff not filling out a survey. He had made an inappropriate comment (‘you look upset by that’) when he had said he had not prioritised answering the survey. She agreed she had raised this in an email to him, because he had been personally involved in earlier leadership meetings, where the staff engagement survey had been discussed and agreed. She had told Mr Tanabe and Mr Streeter she would be raising his comment with him. Ms Alexander agreed the survey was both voluntary and anonymous. However, as a member of the Leadership Team at the time, there was an expectation that he would complete the survey.

[76] As to the unsigned warning letter arising from Ms Grabez’s allegation letter which was found when Ms Alexander reviewed the applicant’s history, she agreed the applicant had given a full explanation for his conduct. She further accepted ‘it was possible’ he did not receive the warning letter. However, she queried why it would have been in his file, if it had not been received. However, there had been an email exchange between the Finance Director, Mr Fujii and the applicant regarding the complaint in which he was told he needed to behave in a particular way. She denied that Mr Fujii was referring to someone else in this email when he spoke of ensuring a good working environment and keeping up morale. Ms Alexander insisted she was not making assumptions about the applicant’s conduct; rather, she was simply stating what was in his file. Ms Alexander said it was not correct that there was no disciplinary conduct engaged in by the applicant, as Ms Grabez’s email to the Head Office in Japan revealed, when Ms Grabez expressed dissatisfaction with the outcome of her complaint. This material was not in Ms Alexander’s statement, because it was only made available to her very recently. After persistent questioning, Ms Alexander agreed that because she was not employed at the time, ‘it was possible’ that the applicant was not disciplined. However, this was highly unlikely, given the subsequent evidence and what was in his file.

[77] As to the cash payments to the casual employees on 29 March 2018, Ms Alexander said she was not on site that night, and understood Mr Tanabe and Mr Streeter were present. She explained the issue was not that the applicant had engaged the casuals and was authorised to do so; rather, it was that the employees were paid in cash from the applicant’s pocket. Mr Tanabe would not have authorised this. It was certainly not the practice of the business. Neither she, the Finance Manager or the Finance Director responsible for payroll, knew the applicant had done so. It had put the business at some risk, which he did not understand, even though it was explained to him several times. Ms Alexander referred to her email in which she had appreciated the applicant had paid the casuals in good faith and with the business in mind. However, she then tried to coach him about the health and safety issues and the obligation of the business to pay employees correctly, as there was no ‘paper trail’. Ms Alexander said the issue raised a ‘major red flag’, but taking into account the pressurised circumstances at the time, no action was taken against the applicant. She considered this response to be lenient and appropriate. It certainly was not bullying by her, as she was not the only person concerned about the incident.

[78] Ms Alexander accepted that she did not tell the applicant what the meeting on 26 June 2018 was about, other than he did not have to prepare. She told him Mr Streeter was there as a witness and to support him. It was just a friendly chat about other people coming to her to share comments he had made about her, without giving details. She encouraged him to stop. It was not a formal discussion. Various comments had got back to her for some time. She ignored them until Mr Streeter, approached her and raised his concerns. She had not included in her statement all of the comments made in the previous six to eight months. She agreed she subsequently sent an email about the meeting to Mr Tanabe and Mr Sukamoto. This was her usual practice. In the email she said:

I advised Mr Steel that I was aware he was speaking badly about me and others, saying things that are untrue and that he was spreading malicious rumours and making slants against my professionalism as an HR manager.

Ms Alexander agreed the applicant had not had any opportunity to address any of her specific concerns, even though she said it was a serious issue. However, she had it very clear it was a friendly discussion. If it had been necessary, it would have moved to a more formal process. Ms Alexander confirmed she had no involvement in the issue concerning the applicant’s fuel and toll expenses.

[79] As to the applicant sending the two emails to Mr McCloud, Ms Alexander said that Management probably had two or three meetings about the matter. She had not taken notes of those discussions and could not recall if Mr Streeter, Mr Tanabe or Mr Sukomoto had taken notes. No emails were exchanged, as they met in person.

[80] From this point, although the transcript is marked confidential, it deals with information concerning another former employee sent to Mr McCloud six months earlier. The second email concerned one of Hitachi’s customers and a complaint against a former employee.

[81] Ms Alexander conceded that the respondent had taken no steps to protect the confidentiality of the emails, at any time, since they were first known to have been sent to Mr McCloud. In fact, they were attached to her own statement for these proceedings. She said that although the applicant had been asked to provide an undertaking and return the emails (which he did), she had not sought a similar undertaking from Mr McCloud.

[82] In determining the preliminary view that the applicant’s employment should be terminated, Ms Alexander claimed that his length of service (11 years) was both a positive and a negative, in that an experienced employee should have known better. Ms Alexander denied that the real reason the applicant was dismissed was because he was assisting Mr McCloud in ‘suing the organisation’.

[83] Having received the applicant’s Solicitor’s letter in response to the ‘show cause’ letter, Ms Alexander said that much of what was put about her was untrue and did not warrant an investigation and there was no investigation of his complaints against her. She did not step aside from discussions about the applicant’s future employment. Nevertheless, his response was insufficient to change the decision to dismiss him; particularly his claims the emails were not confidential, that he was unaware of Hitachi’s and he was unaware of any contract of employment. Ms Alexander accepted that, at the time, the Company’s policies were being reviewed and updated. The applicant was well aware of this review. In any event, the existing policies remained in place and were on the Intranet. The applicant had demonstrated he was aware of the policies, as he had referenced them in the past and would have been made aware of them at his induction; conceding this was some time ago.

[84] The applicant’s contract of employment Ms Alexander annexed to her statement, was dated 26 November 2008, a year after his start date of 2 October 2007 and he signed it on 16 July 2009. She could not explain the three different dates. However, there was a signed copy in the file.

[85] In confidential proceedings, Ms Alexander was questioned about the other work emails the applicant sent to his personal email on 1 July 2018, while he was still employed. They were discovered after he was dismissed. Ms Alexander accepted there were three categories of emails. She agreed the first category concerned the applicant’s awards and achievements and were not confidential. However, the issue generally was his sending of work emails to his personal email and the business content of some of these emails. In addition, Ms Alexander said the applicant had claimed in his response letter that the two emails sent to Mr McCloud was an isolated incident, yet he similarly sent 30 or more work emails to his personal email the same day. Ms Alexander conceded there is nothing expressly set out in the Company’s policies prohibiting sending work emails to personal emails. She acknowledged that she works from home from time to time and has a personal email. However, she had never sent a work email to her personal email.

[86] In re-examination, Ms Alexander explained why the emails to Mr McCloud were confidential. She said:

‘So I raised concerns with Mr Steel in relation to some conversations I had been having with Mr McCloud. Those conversations were regarding his treatment or his request for information from a current employee at the time, Mr Cal Curtis. I was raising those concerns to Mr Steel as his manager at the time and that was for Mr Steel, and obviously our directors, at the time. I had asked if Mr Steel could please speak with Mr McCloud because I had on various occasions talked about a couple of those points and felt that Mr McCloud unfortunately wasn't understanding my concerns. This has to do with an ex-employee at the time, as well, so that's confidential information that shouldn't have then been passed on.’

Mr Hiromichi Tanabe

[87] In cross examination, Mr Tanabe was assisted by an interpreter. Mr Tanabe agreed he had many interactions with the applicant over the years and he had promoted him and sent him on several overseas trips on behalf of Hitachi. The applicant had also received a 10 year Appreciation Certificate.

[88] Mr Tanabe said he was helping to fill the urgent order on 29 March 2018 and was aware of, and agreed to engage the two sons of another employee to help out. He had agreed to their payment, but not that they be paid in cash by the applicant. Mr Tanabe later approved a reimbursement claim from the applicant.

[89] Mr Tanabe could not recall the details of the emails the applicant sent to Mr McCloud, but he insisted they were internal communications. He agreed he had taken no steps since to protect the confidentiality of the emails. Mr Tanabe said he took no notes of the discussions held to discuss the applicant’s conduct and later dismissal. The Management Team had not decided on termination at the time of the ‘show cause’ letter. No other options were discussed because the applicant was on sick leave at the time and they were waiting for him to return to work (which he didn’t).

[90] It was Mr Tanabe’s evidence that he was aware of concerns the applicant had with Ms Alexander’s conduct. However, he understood the serious misconduct of the applicant was his sending of a Company email to his private address, which he then sent to someone else, during a period when he was on sick leave. Mr Tanabe said he had instructed Ms Alexander to prepare the ‘show cause’ letter. He had read it and agreed with it. He believed that the applicant should be given an opportunity to respond (‘to say back to me’).

[91] Mr Tanabe did not accept that the applicant was unaware of the need for confidentiality as set out in the Code of Conduct. Management had considered his good record, but the two matters were not related. As to the applicant’s complaint against Ms Alexander he did not take steps to investigate these matters, because the applicant’s conduct had nothing to do with Ms Alexander’s conduct. Further, he did not consider an investigation was necessary, as he believed the HR department was ‘doing their job’ and there were ‘no special issues’.

[92] Mr Tanabe acknowledged that he had sent work emails, such as airline tickets or travel arrangements to his personal email, and this was certainly OK. However, the case here was sending confidential Company information to a third party. Mr Tanabe claimed he did not consider any other options to dismissal, or seek to meet the applicant, because his response to the ‘show cause letter (is) very poor’, and it was necessary to secure data and to be able to recover it. There was no reason to do what he did.

Mr Yong Joo Lee

[93] Mr Lee has worked in Hitachi’s IT team for two years. He said that at no time had he instructed or trained the applicant to delete any work emails and to the best of his knowledge no one else had either. There would be no reason for anyone to do so. In any event, emails can be stored in the unlimited local storage if a user does not enough size or storage.

[94] Mr Lee included in his evidence sent emails from the applicant’s work email between 1-12 July and a screen shot of the deleted items from 1 July 2018. Mr Lee accepted that his inquiry did not go further back than June and July 2018. While these emails were deleted from the deleted items, they were recoverable from the server.

[95] In cross examination, Mr Lee did not accept it was possible that IT Managers who had preceded him had instructed the applicant to delete emails, because it was necessary to secure data and to be able to recover it. In any event, emails can be stored in the unlimited local storage if a user does not have enough storage.

Mr Streeter

[96] Mr Streeter referred to the incident on 29 March 2018 when two casuals were engaged to help complete an urgent order. Although he was the applicant’s direct supervisor, he did not raise any concerns as to the engagement of the casuals, as he was new to the business. He was not aware at the time, that Mr Tanabe had authorised their employment.

[97] Mr Streeter said that the meeting on 17 May 2018 to discuss the applicant’s toll usage, was not a formal meeting. Rather, it was intended to understand why his toll usage was so high. The intention was to investigate the matter further and have another meeting. However, other events overtook it, including the applicant being on sick leave at the relevant time.

[98] As to the staff survey meeting, Mr Streeter recalled Ms Alexander had asked everyone in the meeting if they had completed the survey. He accepted that the survey was voluntary and anonymous. Mr Streeter said that the applicant came to him after the meeting and said words to the effect ‘even Hiro and all other previous Japs don’t get HR.’ Mr Streeter took offence at this comment, as his wife and children had been called ‘Japs’ many times. He raised this concern with HR.

[99] As to the meeting with the applicant and Ms Alexander on 26 June 2018, Mr Streeter accepted that while no individual employee complainants were named, the applicant had said he was sorry he had offended Ms Alexander and would not do it again.

[100] It was Mr Streeter’s belief that the two emails the applicant sent to Mr McCloud on 2 July 2018, were confidential information and a breach of Company policy. Mr Streeter acknowledged he did not personally take any steps to protect the confidential information. However, he understood the Company sought legal advice about the matter.

[101] Mr Streeter could not recall if he, or anyone else, took notes of the meetings he had with senior management between 2 and 26 July 2018 to discuss the applicant’s conduct and what to do about the matter. Mr Streeter said that these were serious matters, as he did not know what information might have been passed on to others.

[102] In respect to the applicant’s clean out of his office, Mr Streeter accepted ‘it was possible’ he had attended a seminar on Best Practice Management, but ‘when the cleaner tells me that the room has been messy for years, and all of a sudden not one shred of personal information is in the office; not a photo, not a thing…’.

[103] Mr Streeter denied the suggestion that Ms Alexander had recommended the applicant’s dismissal. After legal advice and his response to the ‘show cause’, there was a round table discussion, and as a group, the Management Team had decided that termination was the right course of action. Mr Streeter agreed that the applicant raised concerns about Ms Alexander’s conduct, but he did not think it appropriate she be excused from the decision making or that some independent person look into the applicant’s concerns.

[169] I also consider the applicant’s credibility was further undermined when he sought to significantly downplay his friendship with Mr McCloud. This was evident on two levels – firstly, if he was not friendly with Mr McCloud, why would he go to such lengths to give Mr McCloud ammunition in his case against the Company, even when he claimed he had some doubts? Secondly, why would he wait 12 days after asking Mr McCloud for a copy of the PD Act, when he could have easily accessed it himself? In my view, the evidence points to a close friendship between the applicant and Mr McCloud. I reject the applicant’s evidence to the contrary. Failed attempts to downplay the relationship, designed to imply he was doing nothing out of the ordinary by responding to Mr McCloud’s requests for help, do not wash. In my opinion, the applicant’s motives were to ensure that Ms Alexander's management and reputation were further damaged and if Mr McCloud’s case went on to prove these matters, he would have evidence in his own case, which he knew was likely. In my view, the applicant become entangled in Mr McCloud’s web, when he said he had first read about Mr Jerry Marsh from the FWO in the filed materials and had not seen Mr McCloud’s statement until the day of the hearing. This is impossible to believe because none of the respondent’s witnesses statements mention Mr Marsh. It was only Mr McCloud who had first mentioned him in his statement, dated 9 November 2018.

[170] I also found the applicant’s explanation for his clean office improbable in the context of what was happening around the time. He left the office on 29 June 2018 and proceeded on personal leave on 2 July 2018. He did not return to work. Around this time he had engaged lawyers. I find, on the balance of probabilities, the applicant had cleared his office in anticipation of him not returning.

[171] Mr McCloud provided a statement and gave evidence in support of the applicant’s case. In my assessment, involving Mr McCloud had the very opposite result than what the applicant had intended. I found his evidence to be mischievous, unduly defensive and self-serving. In the witness box, he was smug and argumentative. Given his evidence, his claim of having no ‘axe to grind’, is laughable. He had a propensity to be loose with the truth and backtrack when caught out, particularly concerning who told him about the provisions of the PD Act. When it was obvious his original claim that it was the Deputy President’s Associate, he changed his position and said it was Mr Jerry Marsh at the FWO. When it was found that no such person ever worked for the FWO, he tried to wriggle out of that dilemma by saying he thought it was someone from the FWO. It is curious Mr McCloud said in his email to the applicant on 1 July 2018 that ‘I am resigning from Hitachi’ when he had already resigned on 27 June. Two other examples serve to demonstrate Mr McCloud’s unreliable evidence. Firstly, in his resignation letter, he claimed ‘After discussions with Fairwork I have been informed that once I resign this would no longer be just a workplace dispute case but would instead be a workplace damages case.’ In my view, no one at the Commission would have given such advice, which is patently wrong in any event. There is no such thing as a ‘workplace damages case’. Secondly, I set out in full Mr Murphy’s cross-examination of Mr McCloud concerning the obvious similarities in his letter and Mr Ben Robert’s letter [129]. I consider it highly unlikely that these numerous similarities were a mere coincidence. The implication is obvious. This and other discrepancies or vagueness in the evidence of the applicant and Mr McCloud must raise concerns that they appeared to be acting in concert to ensure maximum damage to Ms Alexander.

[172] In my judgement, Mr McCloud was a witness of little credit. Perhaps, the only issue where I accepted his evidence, was when he said that he and the applicant were close friends, after the applicant sought to strategically distance himself from the closeness of their friendship.

[173] Mr Sondermeyer was also not a believable witness. It is difficult to reconcile his friendly, and grateful resignation letter, with two weeks notice and best wishes, with his evidence in this case of his fears of being the next target for dismissal and he was anxious and not coping well, so he was forced to resign. I do not accept his evidence where it conflicts with Ms Alexander’s and Mr Streeter’s evidence; in particular, the tone of Mr Sondermeyer’s resignation letter is entirely consistent with a person who, after 7 years, had found another job, with more pay and less travel.

[174] It must be observed that Ms Schreier-Joffe’s determined effort to make this case all about Ms Alexander’s alleged behaviour, took the applicant’s case nowhere. That said, Ms Schreier-Joffe’s questions to the respondent’s witnesses frequently prefaced with the words ‘Is it possible…’ Ms Schreier-Joffe misunderstands the evidentiary test in the Commission. Of course, anything is possible, as the witnesses readily conceded, but that takes the matter nowhere. My task is to determine the matter, not on obscure or improbable possibilities, but on the ‘balance of probabilities’; see: Briginshaw. This case is, and never was about Ms Alexander’s conduct or behaviour. After all, Ms Alexander can hardly be blamed for incidents recorded in the applicant’s file, when she was not even employed at the relevant times. The fact these were business records was none of Ms Alexander’s doing; or could have been influenced by her.

[175] It was the applicant’s evidence that these were not disciplinary matters and he had never been warned about any of them. This proposition is difficult to maintain when there is a complaint letter from Ms Grabez and a warning letter and email from Mr Tanabe arising from that incident. The applicant seemed to assert that because the warning was unsigned, he never received it, that somehow the warning, or the conduct to which it related, is irrelevant. Many employees refuse to sign warning letters. It is often said, quite mistakenly, that a warning somehow loses its effect or characterisation, simply because it is unacknowledged. This is not the reality. I reject the applicant’s evidence that he was unaware of the Grabez warning.

[176] Of course, Ms Alexander can hardly be said to have been thrilled about the applicant’s criticisms of her behind her back. The applicant did not seriously deny this conduct. I accept that Ms Alexander had initially sought to brush these comments off, but when it was brought to her attention by the applicant’s direct manager, she only took the step of having a friendly conversation to advise him to stop doing so. There was some criticism of Ms Alexander for not detailing any of the incidents, or giving the applicant an opportunity to respond. It must be remembered, and I accept, this was not a formal disciplinary meeting. It cannot seriously be suggested that Mr Streeter and Ms Alexander simply made up these claims in order to bolster the case for his dismissal. Given the tone and language of the applicant’s evidence as to his negative opinions of Ms Alexander and his view that she was looking for reasons to dismiss him, which he was more than prepared to share with Mr Tanabe and Mr McCloud, I have no doubt the applicant was not shy from expressing these views to others. In my view, Ms Alexander was perfectly entitled to raise her concerns about this behaviour, and, on one view, could have taken more serious action at the time, but did not.

[177] As I said earlier, this case is not about Ms Alexander’s conduct or the allegations she was looking for reasons to dismiss the applicant. The applicant was the architect of his own demise. The issue is not that he sent work emails home, but that he passed them on to a third party. Questioning of the respondent as to whether the policy allowed it or not, is not the point. The applicant had not only sent them for his future use, but I believe he had an ulterior purpose – to assist Mr McCloud in suing the Company. In Adamczak v Alsco Pty Ltd (No.2) [2018] FCCA 1252, Brown J, in not dissimilar circumstances, said at [395]-[402]:

1. Regulation 1.07 of the Fair Work Regulations provides a definition of the expression serious misconduct. The expression is said to have its ordinary meaning. Accordingly, in my view, what will amount to serious misconduct will depend on the court’s objective assessment of the circumstances prevailing, vis-à-vis the employer and employee concerned, at the time of termination.

1. Pursuant to sub-regulation (2) serious misconduct includes the following:

“(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer's business.”

1. It is Alsco’s position that Mr Adamczak’s contract of employment contained a specific provision, prohibiting him from divulging confidential information, pertaining to Alsco, for his own benefit or that of others, which provision was well known to Mr Adamczak personally. Nonetheless he chose clandestinely and deceptively to breach his contractual obligations with Alsco.

1. In these circumstances, it is Mr Moses’ submission that given the evidence led by Alsco clearly indicates that Mr Adamczak did in fact distribute Alsco’s confidential information to others the firm is therefore it was entitled to consider this behaviour to be serious misconduct of such a degree to warrant immediate dismissal. I agree.

1. I accept that Mr Adamczak’s conduct, in disseminating emails containing Alsco’s confidential worker’s compensation data, when combined with his evasive response to Ms Freeman’s questioning, at the 30 July 2014 meeting, were objectively likely to lead Mr Hickin to conclude that Mr Adamczak’s behaviour was inconsistent with his contractual obligations to Alsco and his conduct in regards to the emails in question was both deliberate and wilful.

1. The word wilful is defined in the Australian Oxford Dictionary, in respect of a person, as being obstinate and headstrong and, of an action, being one which is intentional and deliberate.

1. I am satisfied that Mr Adamczak deliberately sent emails to third parties, without Alsco’s consent, knowing that Alsco would not approve his actions. Thereafter, I accept that he behaved deceptively towards Alsco in both attempting to conceal the contents of his outbox from Ms Freeman and then dissembling about this conduct to her. This conduct can only have resulted in Alsco loosing [sic] trust in Mr Adamczak and fearing that its commercial integrity had been compromised.

1. In my view, in these circumstances, Mr Hickin and the Alsco management team were entitled to reach the conclusion that Mr Adamczak was no longer loyal to Alsco and wished the firm ill. Accordingly, in my view, such misconduct is inconsistent with the continuation of his contract of employment and justified immediate dismissal.

[178] The nonsense of the applicant’s claims, is vividly exposed when one asks a few obvious questions:

1) How did Ms Alexander create a set of circumstances where the applicant, on his friend’s request, sent him emails he knew full well Mr McCloud intended to use in proceedings against the Company?
2) How did Ms Alexander create a set of circumstances where on the same or next day, the applicant sent 30 work emails to his home address, then claimed the two to Mr McCloud was an isolated incident; then later deleted the emails in a desperate attempt to cover his tracks?
3) How did Ms Alexander influence the applicant to pay the two casual employees in cash on 29 March 2018, when she was not even on site at the time?

[179] Ms Schreier-Joffe’s attempts to discredit Ms Alexander by forensically examining whether the incidents recorded in his file, had actually occurred, took the applicant’s case down a dead end. Firstly, whether warnings were issued or not, these incidents occurred before Ms Alexander’s employment began. Secondly, she had included these matters in her statement merely to dispute the applicant’s claim in his form F2 that he had an ‘exemplary performance and conduct history’. Thirdly, these matters were (and for present purposes are) irrelevant to the misconduct allegations for which the applicant was dismissed. Nor is it clear what Ms Schreier-Joffe’s persistent questioning of Ms Alexander about the informal discussions she had about the applicant making derogatory comments about her, had to do with the fundamental reason for the applicant’s dismissal.

[180] Accordingly, I have no confidence that the applicant was a witness of truth. At the very least, he distorted and exaggerated his evidence by implausible explanations. Where the evidence of the applicant conflicts with Ms Alexander, Mr Tanabe and Mr Streeter, it is their evidence which I prefer. I found these persons to be witnesses of credit, whose evidence was consistent and believable. They were prepared to make admissions against interest and did not seek to exaggerate or colour their versions of events.

Was the applicant’s dismissal ‘harsh, unjust or unreasonable’?

[181] As earlier mentioned, s 387 of the Act sets out each of the matters the Commission is required to take into account when determining this question. All of the criteria must be taken into account when the Commission considers whether a particular dismissal is unfair. Nevertheless, it must be steadily borne in mind that all of these matters must be considered in totality. This is obvious from the Explanatory Memorandum to the Fair Work Bill 2008 at para 1541:

‘1541. FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.’

[182] I turn to each of these matters, seriatim.

Section 387(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

[183] The meaning of ‘valid reason’ in s 387(a) is drawn from the judgment of North J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’). This meaning has been applied by members of the Commission and its predecessors for many years:

‘In its context in s 170DE(1), the adjective ‘‘valid’’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, common sense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.’

[184] In Browne v Coles [2014] FWC 3670, Hatcher VP adopted the ratio of the majority of the Full Bench in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 in respect to breaches of the employer’s policies in the context of s 387(a) considerations. His Honour said at [62]-[63]:

‘[62] The Full Bench majority (Lawler VP and Cribb C) in B, C and D v Australian Postal Corporation T/A Australia Post discussed the significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal in the following way:

“[35]... as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a ”valid reason” should not impose a severe barrier to the right of an employer to dismiss an employee”.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”

[63] I respectfully adopt the above reasoning. There could be no doubt that any act of physical violence (which would include pushing someone) would be a substantial breach of the Code. Mr Browne’s conduct was “wilful” in the sense of being intentional. As I have found, his sense of judgment would have been affected by Mr Hearne’s earlier harassing behaviour and his apprehension that Mr Hearne might strike him. However, that is a matter which I consider (consistent with the reasoning in B, C and D) should be considered in the context of s.387(h) as a relevant matter going to whether the dismissal was harsh, unjust or unreasonable rather than under s.387(a). I therefore find that there was a valid reason for Mr Browne’s dismissal.’

[185] In B, C and D v Australian Postal Corporation, the Full Bench dealt with breaches, by a number of employees, of Australia Post’s IT policies in respect to the sending, receiving and sharing of pornographic material. In discussing the significance of an employee’s compliance with an employer’s policies and procedures, the Full Bench majority said at [61]–[67]:

‘[61] The formulation, implementation, dissemination and enforcement of polices are a matter within the prerogative of management. The almost infinite variety of businesses and their circumstances necessarily leads to great variability in employer approaches to those matters. In particular, there is great variability in the approach of employers to:

• The form and content of policies. (Employer policies come in all shapes and sizes. Some employers have voluminous policies filled with detailed prescription. Others have polices expressed in broad terms.)

• They way in which employees are educated as to the content of polices.

• The way in which polices are enforced (some employers enforce their policies rigorously, other employers allow a situation to develop where particular breaches of policy go unanswered) and in disciplinary procedures and the approach to disciplinary decision making.

[62] Breaches of policy can often cover a spectrum from the trivial, minor or technical to the very serious.

[63] All or virtually all medium to large employers have a range of policies that employees are required to observe, including a policy against the accessing, transmission or storage of pornography and other unacceptable or inappropriate material and a policy against harassment and victimisation. Most employers train employees in the employer’s policies. Many if not most employers require employees to familiarise themselves with the employer’s policies. Many if not most employers have logon notices reminding employees using the employer’s IT system that they are bound by the employer’s policies. Common experience dictates that such policy training often does not result in enduring employee familiarity with the policies and that logon reminders become, as it were, part of the wallpaper.

[64] The nature of material that will come within descriptors such as “inappropriate”, “unacceptable” or “pornographic” and the like will present as a spectrum. The lines of delineation between appropriate and inappropriate or acceptable and unacceptable are not sharp because they are broad, even amorphous, terms in respect of which reasonable minds might differ. Emailing pornography to a friend or other willing recipient is objectively a less serious breach of policy than emailing pornography to unwilling recipients or for the purposes of harassment.

[65] Particular conduct may breach a policy so as to constitute a valid reason but dismissal for that conduct without prior specific warning may be harsh. For example, an employer may have a policy against swearing in the workplace. Such a policy is supported by the same key reason justifying an anti-pornography policy. Swearing in a workplace can lead to an environment where the risk of abuse, harassment and victimisation, and thus the potential legal liability of the employer, is increased. In each case the policy furthers the legitimate interest of the employer to maintain a workplace where conduct that may cause offence to other employees is minimised. However, one can readily hypothesise a case where the breach of a swearing policy would not be seen by any reasonable person as justifying dismissal. In a workplace where swearing occurs without warnings or disciplinary response, selecting a single instance of swearing by a stressed employee with long and unblemished service as a basis for dismissal would be seen by any reasonable person as harsh and unfair.

[66] In Byrne McHugh and Gummow JJ endorsed the decision in Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 at 456 in the following terms (1995) 185 CLR 410 at 467:

“...von Doussa J considered the example of the dismissal of an accountant who held a position of trust where it was discovered after the dismissal that the accountant had been systematically embezzling money from the employer. His Honour said it would be astonishing if the employer could not resist an allegation that the dismissal was harsh, unjust or unreasonable, within the meaning of the relevant award, by pointing to those facts discovered after the dismissal, so long as they concerned circumstances in existence when the decision was made. His Honour concluded: “Whether the decision can be so justified will depend on all the circumstances. A circumstance, likely to favour the decision to dismiss, would be that fraud or dishonesty of the employee had caused or contributed to the employer’s state of ignorance. A circumstance likely to weigh against the decision would be that the employer had failed to make reasonable inquiries which would have brought existing facts to its knowledge before the dismissal occurred.”

[67] Thus, a failure to monitor compliance or enforce a policy can be a relevant factor that weighs against a finding that a dismissal for breach of the policy was not harsh, unjust or unreasonable. If widespread breaches of policy, of the sort that occurred in this case, occur without an employer response then this weighs against a decision that the dismissal was justified and not harsh, unjust or unreasonable.’

[186] I agree with the Vice President and respectfully adopt the reasoning in B, C and D v Australian Postal Corporation.

[187] It will be evident from my discourse above, that I am satisfied that the misconduct alleged against the applicant has been proven, on the balance of probabilities. To be clear, while it was inappropriate, and in breach of his contract of employment and the employer’s policies, for the applicant to have sent work emails to his personal email, the misconduct arises from the fact that he made a critical overstep by sending work emails to a third party, who he knew would use them in a case against Hitachi.

[188] Such conduct constitutes a valid reason for the applicant’s dismissal. The valid reason was compounded by the applicant sending over 30 work emails to his own email, which on his own admission, were to be used if necessary, to defend himself if he was to take similar legal proceedings against Hitachi. There is no doubt that facts not known at the time of dismissal, and discovered subsequently, may constitute grounds for dismissal, or justify an earlier decision to terminate an employee’s employment, even where those facts may be unrelated to earlier grounds (although not the case here); see: [159]-[160].

Whether the applicant was notified of the reason for dismissal (387(b))

[189] The applicant was made aware of the allegations in the ‘show cause’ letter of 12 July 2018. He was notified of the reasons for his dismissal in the termination letter of 27 July 2018. This is a neutral factor in this matter.

Whether the applicant was given an opportunity to respond (s 387(c))

[190] The applicant left the workplace on 29 June 2018 and did not return. The ‘show cause’ letter was sent on 12 July 2018 and his lawyers responded in an eight page letter dated 19 July 2018 after two extensions of time were agreed to by the respondent. There could be no serious challenge to the proposition that the applicant was provided with a reasonable opportunity to respond to the allegations and he did so in a fulsome and detailed way in his Solicitor’s response letter.

[191] I apprehend from the questioning by Ms Schreier-Joffe of the respondent’s witnesses, that there may have been some implied criticism of the fact there was no face to face meeting with the applicant. Given the applicant was on personal leave throughout this period and had never returned to the workplace, and he left all communications in the hands of his lawyers, this submission does not sustain any argument of a denial of procedural fairness. Moreover, there was no request, through his lawyers, for there to be a meeting to discuss the allegations. This factor does not weigh in favour of a finding of unfairness.

Whether there was any unreasonable refusal to allow the applicant to have a support person present to assist in any discussions relating to dismissal (s 387(d))

[192] As no meetings were held in relation to the applicant’s dismissal, this is a neutral factor in this case.

Whether the applicant had been warned about unsatisfactory performance before the dismissal (s 387(e))

[193] The applicant was dismissed for serious misconduct, not unsatisfactory performance. This criterion is not relevant to this matter.

The degree to which the size of the employer’s enterprise, and the absence of a dedicated Human Resources specialists would have impacted on the procedures followed leading up to the dismissal (ss 387(f)-(g)).

[194] The Company has a dedicated HR function in the person of Ms Alexander. Prior to her appointment, there does not appear to be the attention to detail, in respect to employment and industrial relations issues, that one might expect of a medium sized company, such as Hitachi, particularly, when many of its major decisions were taken by managers not necessarily familiar with Australian employment law. This would explain some of the acknowledged deficiencies in processes prior to Ms Alexander’s appointment, such as the retraction of the applicant’s 2016 warning letter, the decision to review and update the Company’s policies and the lack of diligence in ensuring the applicant signed his contract of employment close to the commencement of his employment. I hasten to add that simply because the policies were in need of review does not, as contended for by the applicant, mean that the existing policy did not apply to him or anyone else, particularly where the policies here being impugned, were not inconsistent with the applicant’s contract of employment.

[195] In respect to process, I apprehend the applicant’s case was critical of Ms Alexander being involved in the decision to dismiss him when he had raised concerns about her conduct and behaviour towards him. Three things may be said about this proposition. Firstly, while it may have been preferable that Ms Alexander had recused herself from the disciplinary discussions, she was the Company’s only HR personnel. In these circumstances, it was unrealistic and impractical for her to recuse herself.

[196] Secondly, the evidence of Mr Tanabe, Mr Streeter and Ms Alexander was that they had all discussed the matter, on a number of occasions, and agreed on an outcome. I accept this evidence. Attempts to portray Ms Alexander as the ‘puppet master’ who told Mr Tanabe what to do, are not only insulting to the other managers involved, but is not the reality or the evidence which I accept.

[197] Thirdly, Mr Tanabe was aware the applicant had raised his concerns about Ms Alexander, but he did not accept they there were sufficiently serious (or at all), for Ms Alexander to be removed from her role in the disciplinary process. From my assessment of the evidence, Mr Tanabe’s view was correct. Although I accept there was some tension in the relationship between the applicant and Ms Alexander, this had more to do with Ms Alexander’s more focussed management style and her deliberate and reasonable intention of improving the Company’s employment and related policies, which the applicant took offence to e.g. the payment of cash to the two casuals.

[198] I am satisfied that the procedures taken to effect the applicant’s dismissal were appropriate in the circumstances and no issues of procedural unfairness were demonstrated.

Any other matters the Commission considers relevant (s 387(h))

[199] Although the applicant does not now seek reinstatement, even if I had found some element of harshness arising from his dismissal, I would be disinclined to have ordered his reinstatement. This is so because the applicant continues to maintain he has done nothing wrong and there was a concerted campaign by senior management, notably Ms Alexander, to orchestrate false reasons for his dismissal. Given his depth of antipathy, towards Ms Alexander in particular, there would be little likelihood that the employment relationship could have been sensibly restored. Nor could it be said that the Company could have any confidence that the applicant’s misconduct would not be repeated in circumstances where he fails to acknowledge he has done anything wrong and has shown not a smidgen of contrition. To my mind, it would be a bold leap of faith to reinstate a dismissed employee in these circumstances and expect the employee to behave any differently, or to treat senior managers with the respect and trust to which they are entitled.

[200] I have taken into account the applicant’s 11 years of service, which while not unblemished as he claimed, did not give any real cause for concern until he commenced his ‘behind her back’ criticisms of Ms Alexander’s performance and role within the Company. He would have been better served in heeding his own advice, when he said in the informal meeting on 26 June 2018, that he was sorry and would not do it again, and he needed to be more careful what he says to people.

[201] It is sometimes said, correctly in my opinion, that long periods of service can be a ‘double edged sword’, in the sense that a lengthy period of service can work for, or against a finding of unfairness. This is particularly so in cases involving breaches of Company policies, where an employee’s long experience and familiarity with the business, (or just plain commonsense), should lead to better judgement in making perilous decisions, such as disclosing Company information to a third party, being a disgruntled former employee with an ‘axe to grind’. It may also aggravate the seriousness of the conduct where the employee had previously acted in management roles, and had been trusted to represent the Company overseas and should have known better than to have acted against the Company’s interests.

[202] Further, I can understand the purpose of tendering the applicant’s very favourable performance reviews for 2015 and 2016. However, this is a case which has nothing to do with his sales achievements or his performance generally. Such evidence would be more relevant if this was a case of dismissal for poor performance – which it is not.

[203] I have also taken into account that the applicant has obtained alternative employment, in a junior sales role; albeit on much less remuneration than he was earning at Hitachi. The applicant is obviously a very good salesperson and there should be every expectation, he will move rapidly up in his new role, if his sales performance is ‘exceeds expectations’.

[204] Finally, s 381(2) of the Act is a significant and overarching object of Part 3-2. It is expressed in these terms:

‘381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.’

[205] For the above reasons, I find that the applicant’s dismissal on 27 July 2018, was not ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act. His dismissal was not unfair. Accordingly, this application is dismissed. I so order. I am satisfied that the outcome I have determined ensures a ‘fair go all round’ is accorded to both the applicant and the respondent.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Richard Steel v Hitachi Power Tools Australia Pty Ltd T/A Hitachi Power Tools

[2019] FWC 1195

22 FEBRUARY 2019

DECISION