Robert James Jory v Delaware North Lizard Island Pty Ltd
[2025] FWC 517
•20 FEBRUARY 2025
| [2025] FWC 517 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert James Jory
v
Delaware North Lizard Island Pty Ltd
(U2024/5230)
| COMMISSIONER HUNT | BRISBANE, 20 FEBRUARY 2025 |
Application for an unfair dismissal remedy – applicant sent employment agreements to a third party in breach of the employer’s policies – application dismissed.
On 8 May 2024, Mr Robert Jory made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed from his employment with Delaware North Lizard Island Pty Ltd (the Respondent) on 17 April 2024 and that the dismissal was harsh, unjust or unreasonable.
On 23 May 2024, the Respondent filed a Form F3 Employer Response to the application. No jurisdictional objections were raised.
Directions were issued for the filing of evidence and submissions, and the matter was listed for Hearing on 5 September 2024. A second day was required on 25 September 2024. Mr Jory was granted permission to be represented by Mr Chris Ryall of Counsel, instructed by Mr James McAlister of WGC Lawyers Pty Ltd. The Respondent was granted permission to be represented by Ms Megan Brooks of Counsel, instructed by Mr Ben Motro of Piper Alderman.
The following people gave evidence and were cross-examined:
· Mr Jory;
· Mr Trevor O’Hara, friend and mentor of Mr Jory;
· Mr Tim Ward, former employee of the Respondent;
· Mr Mark Leslie, General Manager of the Respondent; and
· Ms Jane Kennedy, Human Resources Business Partner Operations of the Respondent.
Mr Christopher York, former employee of the Respondent, filed a witness statement but was uncontactable for the Hearing and was not cross-examined. At the conclusion of the hearing, I informed the parties that Mr York’s evidence would be admitted, and I would give it due weight.
Relevant legislation
Section 394 of the Act provides:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Further, ss.385 and 387 provide as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Letter of termination
On 17 April 2024, Mr Jory was issued with the following termination letter:
“Dear Robert
I refer to our meeting on 11 April 2024 which was attended by yourself, Peter Cotton and Jane Kennedy (HR Manager). During the meeting we discussed the following allegations and the context surrounding your actions which were alleged to have occurred during April 2024. It was alleged that you:
1. Sent an email containing the employment contract of a Delaware North employee to an external third party
2. Sent an email containing the employment contract of a former Delaware North employee to an external third party
You were provided with the opportunity to explain your actions.
Both of these allegations have been substantiated. Delaware North considers that your actions namely the disclosure of confidential information without authorisation constitutes serious misconduct warranting summary dismissal. This letter therefore confirms the termination of your employment with Delaware North effective 17 April 2024.
…..
…..
Mark Leslie
General Manager”
EVIDENCE AND SUBMISSIONS OF THE APPLICANT
Evidence of Mr Jory
Mr Jory commenced employment with the Respondent on 12 September 2022 as the Maintenance Manager of the Lizard Island Resort off the FNQ Coast.
Mr Jory was initially responsible for 14 maintenance staff, however by 2024 this number reduced to eight. His view was that the reduction in the number of maintenance staff was caused by low morale arising from complaints about the pay and conditions provided by the Respondent and left the Respondent short-staffed. Mr Jory stated that this placed him and the remaining staff under considerable stress.
Throughout his employment, Mr Jory exchanged emails with Mr Leslie, General Manager and Mr Michael Crow, Human Resources Manager, raising concerns about leave requests and the expectation to perform additional duties outside his area of responsibility. On 25 March 2024, Mr Jory expressed to Ms Jane Kennedy, the new Human Resources Site Manager, that his mental health had been declining, and that there was a lack of support and communication from management, leading him to feel isolated and targeted.
Mr Jory stated that he had been experiencing further stress caused by delays in the Respondent finalising budgets for each of its departments, which Mr Jory says were left outstanding for months. Mr Jory stated this resulted in delays in the approval of purchases, which then caused delays in the completion of projects, and increased pressure on himself and other departments. Mr Jory said that he was continuously questioned about project delays despite not receiving approval to purchase necessary products. This was one of the primary reasons why Mr Jory contacted Ms Kennedy when she commenced in her role.
In around March 2024, Mr Jory received enquiries from staff members in relation to the payment of a callout fee for after-hours work. Staff members questioned whether they were entitled to such a payment, and if so, whether they had been underpaid. Staff members began refusing to perform on-call work unless they were properly compensated, which led to tension within the team. Calls to the Respondent’s maintenance phone number were redirected to Mr Jory’s personal phone, and he frequently received maintenance-related calls after 10:30pm, on average six times per week and multiple times per night.
Mr Jory sought clarification regarding the callout fee issue on 28 March 2024. He received some clarification from HR and followed up on 2 April 2024, but did not receive a response. Mr Jory then sought advice from his friend and business mentor, Mr Trevor O’Hara. In doing so, Mr Jory provided the employment contracts of himself, Mr Ward and Mr Daniel Casey to Mr O’Hara by email, seeking Mr O’Hara’s interpretation of the on-call provisions.
Mr Jory stated that Mr Casey was with him at the time he sent the contracts to Mr O’Hara, and Mr Casey consented to his contract being sent. Mr Jory said he informed Mr Ward shortly after he forwarded Mr Ward’s contract to Mr O’Hara for review. Following the email having been sent, Mr Ward consented for that to occur.
On 2 April 2024, Mr O’Hara replied to Mr Jory as follows:
“Hi Rob
This document is very clear.
You work an average of 38hrs per week – any day or time as negotiated with your employer, maybe more hours one week and less the other to reach the average statement.
You get paid a set rate each pay period and there is nothing that should change this – regardless of what days you work or hours or type of day (eg public holidays or holidays, etc.)
Your remuneration package is inclusive. IF you have ever been paid more, they could seek to have you return those funds as a payroll error and they are well within their rights to seek the money back, regardless of whomever failed to understand your agreement.
The document states you may be required to work additional hours however, does not state anything to support that.
The document does not indicate you are required to be on-call, it just states that your remuneration covers it if you are required to be.
Trevor”
Following Mr Jory sending to Mr O’Hara the employment contract of Mr Ward, Mr O’Hara replied by email:
“Hi
In addition to earlier – be aware you all have this statement:
Your position description is set out in the attachment to this Employment Contract. Delaware North may vary your duties and position description from time to time. You expressly agree that where there is a change in your duties and position description, the terms and conditions of this Employment Contract will continue to apply to your employment.
Tim receives a base to match the award and then ‘Above Award’ payment which means that he should never receive any further remuneration for on-call etc., His pay per period should always be the same regardless of what happens each week.
His average hours is 38hrs also per week and has the clause of being required to work ‘reasonable additional hours’ without further remuneration.
On significant difference is that Tim can refuse to work public holidays – ‘You may refuse the request if you have reasonable grounds for doing so’. This would usually be for religious reasons for example.
Trev”
Following Mr Jory sending to Mr O’Hara the employment contract of Mr Casey, Mr O’Hara replied by email:
“Hi
Dan is exactly the same as you – except for the same ability as Tim to refuse to work on a public holiday ‘You may refuse the request if you have reasonable grounds for doing so’.
Again – set remuneration that should never change from pay to pay.
Work reasonable additional hours per week.
Trev”
On 5 April 2024, Mr Jory received a message from Ms Kennedy, stating that “the contracts across the board right now are not tidy. I am going to do some work to tidy them up”. Mr Jory then asked if he should continue to pay staff as per the status quo, to which Ms Kennedy responded that he should. Mr Jory stated that this was the first time he had received any direction on this issue.
Mr Jory stated that he was regularly asked by his team members for updates with respect to the payment issue. He stated that he advised team members as best he could but considered that the Respondent was not expeditiously addressing the issue, which increased tensions and led to resignations.
Mr Jory gave evidence that he shared Mr O’Hara’s views of the employment contracts with his team members. He said that it ‘provided clarity and improved their morale’.
Mr Jory considered that in seeking external advice, he was trying to assist the Respondent and perform his job as per his job description by providing prompt advice to his team members.
Mr Jory was dismissed by the Respondent on 17 April 2024. Mr Jory considered it was unfair to dismiss him for trying to hold the Respondent to account. He was of the view that the Respondent had been monitoring his emails in order to find a reason to terminate him.
Mr Jory secured new employment on 5 August 2024.
Mr Jory provided further evidence in reply to the Respondent’s witness statements. This is included later in the decision, together with evidence given during the Hearing.
Evidence of Mr O’Hara
Mr O’Hara has known Mr Jory for 20 years. During this time, they have been friends and colleagues. Mr Jory previously worked for Mr O’Hara as part of a not-for-profit organisation. Mr O’Hara is currently employed as a Senior Team Leader at Concentrix and is the Assistant Chief Commissioner (Sustainability and Operations) for Scouts Queensland.
Mr O’Hara stated that he has over 12 years’ experience as a Chief Executive Officer of a not-for-profit organisation, where he was responsible for human resources.
Throughout Mr Jory’s employment with the Respondent, Mr O’Hara stated that Mr Jory contacted him for advice several times. Mr O’Hara considered that the Respondent lacked the expertise to help Mr Jory understand his working arrangements. Mr O’Hara said that he learned from Mr Jory that the Respondent expected employees to work excess hours beyond 38 hours per week.
Mr O’Hara offered to review Mr Jory’s employment contract with the understanding that Mr Jory had sought prior clarification from the Respondent, which had not been forthcoming.
Mr O’Hara received Mr Jory’s contract at 8:26am on 2 April 2024. Mr O’Hara reviewed the contract and provided the response at [16] to Mr Jory.
Mr O’Hara stated that his assessment was clear and directed towards the issues that Mr Jory had raised with him. He did not seek to provide any comment on any matters other than those raised by Mr Jory.
After providing advice to Mr Jory, at 9:20am on 2 April 2024, Mr O’Hara received two further emails containing the contracts of Mr Ward and a ‘Dan’. Mr O’Hara stated that it was his understanding that Mr Jory had offered to other employees for him to provide advice on their contracts in addition to Mr Jory’s. Mr O’Hara provided advice to Mr Jory about the relevant clauses in these contracts at [17] and [18].
Mr O’Hara stated that he did not retain the emails he received, however, retained his replies to those emails.
In Mr O’Hara’s view, Mr Jory had the right to share his contract with a mentor or friend to seek advice and support, and the contract does not state that doing so would constitute an act of serious misconduct.
In evidence given during the Hearing, Mr O’Hara stated that he did not read the confidentiality clause within Mr Jory’s employment agreement. Mr O’Hara assumed Mr Jory had obtained permission of the two other employees to share their employment agreement with him. He assumed that Mr Ward was a current employee, not a former employee.
Evidence of Mr Ward
Mr Ward is a former maintenance employee of the Respondent and was managed by Mr Jory.
In around March 2024, Mr Ward became aware of concerns among staff in relation to callout fees for after-hours work. He stated that while employment contracts were discussed, it was unclear whether the contracts provided for payment of a callout fee, and there was general uncertainty among employees about the meaning of their contracts.
Mr Jory contacted Mr Ward on or around 2 April 2024, asking for permission to send Mr Ward’s contract to Mr O’Hara. Mr Ward stated that Mr Jory had told him that Mr O’Hara was experienced in human resources management and had an understanding of employment contracts.
Mr Ward stated that Mr Jory said he wanted Mr O’Hara to provide his interpretation of the contract and to compare the callout rates. Mr Jory also explained that he was not receiving adequate support from the Respondent’s management, so a review of the contract would allow him to address concerns among staff.
Mr Ward stated that he gave permission for Mr Jory to send his contract to Mr O’Hara.
Following that conversation, Mr Jory informed Mr Ward that his employment had been terminated by the Respondent. Mr Ward stated that he has never received any communication from the Respondent to confirm whether he gave permission for Mr Jory to provide his contract to Mr O’Hara.
In evidence given during the Hearing, it became clear that Mr Jory contacted Mr Ward to inform him that he had provided his employment agreement to Mr O’Hara to review, not sought permission for that to happen before the fact. Mr Ward was comfortable with Mr Jory’s actions. In evidence produced following the Hearing, it would appear that Mr Jory called Mr Ward around midday on 2 April 2024 via WhatsApp and they spoke for around five minutes.
Evidence of Mr York
Mr York was employed by the Respondent as a Gardener and was managed by Mr Jory. Mr York’s evidence is that there was unease among employees in relation to underpayment and callout payment issues. He stated that these issues were originally identified by Mr Tom Woodrow.
Mr York was aware that Mr Jory attempted to address the issue with the Respondent but did not receive a response. This affected the morale of the team. Mr York considered that Mr Jory was concerned about staff morale, and always acted in the Maintenance Team’s best interests, trying to resolve all issues faced by staff under his supervision.
Applicant’s submissions
Mr Jory submitted that upon being approached by maintenance staff under his supervision in relation to payment of a callout fee, he referred the issue to Mr Leslie and Ms Kennedy but did not receive a timely response or any response at all. In lieu of a response, Mr Jory submitted that he sought external advice from Mr O’Hara as he was concerned about the potential underpayment of his staff.
Section 333B(1) of the Act states that an employee may disclose to any other person information concerning the employee’s remuneration or any terms and conditions of the employee’s employment that are reasonably necessary to determine remuneration outcomes. Mr Jory therefore submitted that his disclosure of employees’ employment contracts to Mr O’Hara for the purpose of ascertaining whether the employees were entitled to callout fees could not be considered a breach of confidentiality. Mr Jory also noted that his conduct was not malicious and he was not seeking to derive a personal benefit.
On this basis, Mr Jory submitted that he was unfairly dismissed.
Following his dismissal, Mr Jory submitted that he has taken steps to obtain alternative employment but has not been successful. Mr Jory submitted that he was paid, on average, $10,461.85 per month and received free accommodation and two meals per day. He therefore considered his monthly remuneration to be $11,000. Mr Jory submitted that he was entitled to receive 6 months’ compensation, amounting to $66,000.
EVIDENCE AND SUBMISSIONS OF THE RESPONDENT
Evidence of Ms Kennedy
Ms Kennedy is the Respondent’s Human Resources Business Partner Operations on the Lizard Island Resort and has been employed by the Respondent since 19 March 2024.
In her first week of employment, Ms Kennedy arranged to individually meet with all Heads of Departments of the Respondent. She met with Mr Jory on 25 March 2024, when Mr Jory raised concerns about not feeling valued. Ms Kennedy asked Mr Jory what support he would like from HR and what had worked effectively in the past, to which Mr Jory replied, “transparency with issues, however HR issues are fairly limited in my team”.
During their conversation, Mr Jory did not raise any concerns in respect of callout allowances or remuneration generally, aside from requesting that team members being paid monthly instead be paid weekly. Ms Kennedy stated that Mr Jory also demonstrated that he had not considered and was unaware of policies and procedures in relation to safety, indicated that he would not be servicing boats as he considered that was not within his area of responsibility and would expect additional compensation if asked to do that work, and indicated that there were no or very limited routine maintenance checks of resort rooms.
Mr Jory informed Ms Kennedy that when his team finished their work early, he would let them have the rest of the day off but would tell them to ensure they were not seen by other staff. He alluded to it being a reward to the team members.
Ms Kennedy took notes of the meeting and provided a summary to Mr Leslie.
On or around 28 March 2024, Ms Kennedy spoke with Mr Jory. Mr Jory asked whether there was a callout allowance in his contract. Ms Kennedy replied with words to the effect that she did not know, and she would have to check, but as he was on a salary it can technically be included. The same day, Ms Kennedy returned to Mr Jory and told him that his salary was inclusive of any on-call or callout allowances. Ms Kennedy stated that they did not discuss the fact that Mr Jory was getting an additional callout allowance, and she did not suggest that the Respondent would stop paying this.
Ms Kennedy stated that Mr Jory was receiving a salary and received an additional callout allowance each time he was asked to perform a maintenance task after 10:00pm. As Mr Jory was not award-covered, Ms Kennedy stated that he had no entitlement to this allowance, but there was no intention for the Respondent to stop paying it to him or anyone else in the maintenance team.
At this time, Mr Jory had asked only about his own contract terms, and not anyone else’s. Later, on 28 March 2024, Mr Jory sent the following message to Ms Kennedy on Microsoft Teams, before listing the names of his team members:
“Hi Jane,
Might be worth checking all of my team…”
On 29 March 2024, Ms Kennedy was contacted by Mr Woodrow with questions about his contract, which had only been issued to him a few weeks earlier, but before Ms Kennedy commenced in her role. Mr Woodrow told Ms Kennedy that he was not seeking to change the contract, and he only wanted to better understand its application. Ms Kennedy stated that she then met with Mr Woodrow on a few occasions that week to answer his questions and explain the standard terms of the contract. During one of these meetings, Mr Woodrow noted that his callout allowance was not specifically noted in his contract, and asked if it was being removed. Ms Kennedy told Mr Woodrow, “absolutely not”, and explained that while it was not specifically mentioned in the contract, it was an Award entitlement, and will be paid to him.
Ms Kennedy considered that based on the timing of his conversation with Mr Jory and his conversation with Mr Woodrow a short time later, Mr Jory may have incorrectly advised Mr Woodrow that changes were to be made to the on-call and callout allowances.
On 2 April 2024, at 2:43pm, Mr Jory sent Ms Kennedy the following message on Microsoft Teams:
“Hi Jane, When you get a moment could I please get an answer on this as ill need to adjust my on call roster at the end of the week.”
The following day, at 11:37am, Ms Kennedy received an email from Ms Tahni Booth, her counterpart for the Respondent’s operations in Mindil Beach, who advised her that the Respondent’s Data Privacy Team had become aware of Mr Jory sending an email containing confidential material to an email address belonging to Mr O’Hara.
Ms Kennedy’s understanding is that an automated security system alerts the Respondent when ZIP files are sent to external email domains that are deemed high risk, such as Hotmail or Yahoo. Ms Kennedy noted that Mr Jory had not been individually targeted by the Respondent in its monitoring of emails. As Ms Booth was formerly the Human Resources Manager at Lizard Island, the security alert was initially raised with her, before being redirected.
The emails sent by Mr Jory to Mr O’Hara on 2 April 2024 were sent in the morning.
On 5 April 2024, Ms Kennedy received a message from Mr Jory asking for a copy of everyone else’s contract. Ms Kennedy stated that at this time, she had only briefly reviewed the material sent to her by Ms Booth, but understood it related to Mr Jory allegedly sending confidential information, including contracts, to a third party. It was therefore decided between Ms Kennedy and Mr Leslie that Mr Jory would not be provided with further contracts.
Ms Kennedy replied to Mr Jory’s message the same day, asking for a reason why he needed a copy of everyone’s contract. Ms Kennedy and Mr Jory had the following Microsoft Teams exchange:
Ms Kennedy: Hi Rob, I’m working through the on call allowance payments with payroll. Is there any reason why you need a copy of everyone’s contracts?
Mr Jory:To understand who gets what and to know what they are on when they question me. As there is a lot of confusion amongst the team and some don’t have job descriptions of contacts anymore.
Ms Kennedy: Ok the contracts across the board right now are not tidy. I am going to do some work to tidy them up, the ER manager is also putting together a summary of the various awards to provide an easy summary for everyone to reference. In the mean time if you need to send the team over to me please feel free.
Mr Jory:Okay no worries, so for now do we continue doing what we are doing until advised otherwise?
Ms Kennedy: yes, if there are any issues that you can’t solve through right now, don’t hesitate to send them in
Ms Kennedy stated that when she said she was “working through the on call allowance payments with payroll”, she meant that she was confirming the exact on-call or entitlements of each employee with payroll, and whether these were expressed in any contracts. Regarding Ms Kennedy’s declaration that she was going to tidy the contracts up, she meant that different employees’ contracts were stored in different locations, and she was reorganising the storage of contacts in a uniform manner. Ms Kennedy stated that she did not suggest that any changes to any contracts were being made. Following this, Mr Jory did not contact her about the concerns of any particular employee, and she did not hear from anyone in the Maintenance Team directly in regard to their contracts or entitlements.
An investigation into Mr Jory’s conduct began on 3 April 2024. Ms Kennedy conducted a review of Mr Jory’s outbox between 3 and 10 April 2024 and discovered that he had sent to Mr O’Hara his own contract, as well as the contracts of Mr Ward and Mr Casey.
It was determined by Ms Kennedy, Mr Crow, Mr Leslie, and Ms Deb Brennan, the Respondent’s Employee Relations Manager, that a meeting should be scheduled with Mr Jory to allow him to respond to the allegation. Ms Kennedy issued Mr Jory with a letter on 10 April 2024, detailing the allegations made against him and inviting him to respond in a meeting scheduled on 11 April 2024. That letter stated as follows:
“Dear Rob,
Delaware North has reason to believe you may have breached our Employee Records Policy and the Code of Conduct. This letter provides detail regarding the allegation made against you. It is alleged that you have:
1. Sent an email containing the employment contract of a Delaware North employee to an external third party
2. Sent an email containing the employment contract of a former Delaware North employee to an external third party
You will be provided with an opportunity to respond to these allegations. A meeting will take place at 10:30am Thursday 11 April 2024 in the HR office. Jane Kennedy, HR Manager and Mark Leslie, General Manager will be in attendance. The purpose of this meeting is to provide you with the opportunity to respond to the allegations and to enable to company to understand the circumstances from your perspective.
You are entitled to have a support person attend the meeting with you. This person provides moral support and may discuss issues with you in structured time out. However, those in support roles are unable to speak on your behalf.
I must advise you if the allegations are substantiated, disciplinary action may be taken against you, which may include the termination of your employment. It is therefore extremely important that you attend the meeting. Finally, I request that you respect and observe confidentiality in this matter and ask that you do not discuss this matter with any other employee of Delaware North.”
The meeting took place on 11 April 2024. Ms Kennedy attended with Mr Leslie, and Mr Jory attended with a support person. Mr Jory confirmed during the meeting that he was aware of the Respondent’s Code of Conduct and had undertaken a training session on the Code of Conduct earlier in the year, describing it as a “5-minute video that I skipped over”.
Ms Kennedy subsequently reviewed Mr Jory’s employment records and found that he completed induction training on 12 August 2022, which included training on the Code of Conduct and other policies.
Ms Kennedy stated that she got the impression from the meeting that Mr Jory did not take the issue of breaching confidentiality or company policies very seriously. The following was put and answered during the meeting:
Ms Kennedy: Can you confirm that you sent three employee contracts to an external party namely Trevor Darryl O’Hara?
Mr Jory: Yes.
Ms Kennedy: Can you confirm which/whose contracts you sent to the external party?
Mr Jory: My own contract, Daniel Casey and Timothy Ward.
Ms Kennedy: Were the contract owners aware you had shared their employment contracts and records with an external party?
Mr Jory:Daniel was aware, he was in the office when I sent the contracts. Tim is a former employee and was not aware that I sent his contract. I have since made contact with him to advise.
Mr Jory told her that he sought external advice on the contracts of other employees because he felt he had not been receiving the support he needed in his role from the Respondent. Ms Kennedy said she found this response odd when she had previously answered Mr Jory’s questions about his own contract.
Mr Jory took planned leave from 11 – 14 April 2024.
On or about 12 April 2024, Ms Kennedy spoke with Mr Crow and Ms Brennan about the matter, and they decided that termination was a likely outcome. Ms Kennedy then discussed this with Mr Leslie, who also agreed that termination was a likely outcome. Ms Kennedy discussed the matter again with Mr Crow on 15 April 2024. She stated that she expressed a view that termination was appropriate in the circumstances, especially considering that Mr Jory did not take the Code of Conduct seriously and had demonstrated that he was not fit for a leadership role.
A decision was then made to terminate Mr Jory’s employment for serious misconduct.
Mr Leslie and Ms Kennedy met with Mr Jory and his support person on 17 April 2024, informing him of the decision to terminate his employment. Ms Kennedy stated that Mr Jory responded calmly.
Following Mr Jory’s dismissal, it has been brought to her attention that there were over 500 outstanding maintenance requests with the Maintenance Team at the time of her meeting with Mr Jory on 25 March 2024. In the three weeks following Mr Jory’s dismissal, that number reduced to 115.
In evidence given during the Hearing, Ms Kennedy acknowledged that Mr Jory had sent more than just the three employment contracts by email to Mr O’Hara; he had sent a zipped attachment with additional employment contracts/amendments. Ms Kennedy did not thoroughly review the email Mr Jory sent to Mr O’Hara prior to the dismissal. The additional documents were only discovered in preparing for the Hearing. Ultimately, the documents sent by Mr Jory to Mr O’Hara were in respect of the following employees:
Dylan C – addendum to employment contract to provide for free meals and accommodation;
Peter C - addendum to employment contract to provide for free meals and accommodation;
Jude F - addendum to employment contract to provide for free meals and accommodation;
Matthew S - addendum to employment contract to provide for free meals and accommodation;
Timothy Ward - addendum to employment contract to provide for free meals and accommodation;
Daniel Casey - addendum to employment contract to provide for free meals and accommodation;
Daniel Casey – employment agreement;
Timothy Ward – employment agreement;
Robert Jory – employment agreement;
Dominic K – employment agreement;
Francisco M - employment agreement;
Ms Kennedy considered that Mr Jory did not express regret in providing employment agreements to Mr O’Hara.
The Respondent’s Code of Conduct relevantly states:
“Serious Misconduct means wilful or deliberate behaviour by a Workplace Participant, conduct that may cause serious risk to the health or safety of a person, or conduct that may adversely affect the reputation or financial position of the Company’s business. Serious Misconduct usually results in summary dismissal without the opportunity for a second chance. While not an exhaustive list, the following are examples of conduct that is Serious Misconduct:
…
(p) disclosing confidential information or breaches of confidentiality agreements between an employee and the Company, including via social media;
…
(r) committing a serious breach of the Company’s policies and procedures;
…
1. Expectations
The Company expects that its Workplace Participants:
(a) comply with all reasonable direction given by the Company, including being familiar and comply with all relevant Company policies and procedures and site handbooks, as well as the terms of their employment contracts or contracts of engagement;
…
(c) treat all confidential information with care, and only share information with those persons who require such information to perform their role;
…
Workplace Participants must not:
(a) engage in Unacceptable Behaviour or Serious Misconduct
…
Breach of this Code of Conduct
The terms of this Code of Conduct are not intended to impose legally binding obligations on the Company and do not form part of any employee's contract of employment or terms and conditions of employment, or a contractor's contract for services. However, all Workplace Participants must comply with this Code of Conduct, and the failure to comply with this Code of Conduct may lead to appropriate action. For employees, this includes disciplinary action up to and including termination of employment…”
The Respondent’s Employee Records Policy relevantly states:
“Employee Records include, but are not limited to:
…
(d) Employment and Payroll Documentation: For example, employment contracts, employment agreements, position descriptions, copies of any qualifications/certificates/licences which an employee is required to hold, Personal Details Forms, Bank Deposit Forms, Tax File Number Declarations, Tax Code Declarations, superannuation forms and KiwiSaver forms.
6. Handling Employee Records
Employees with access to Employee Records must:
· Only access, use or disseminate the content of Employee Record to the extent such use, access or dissemination is necessary for the performance of the employee’s duties and related to the purpose for which the information was collected; and
· Not access, use or communicate the contents of an Employee Record, including another employee, unless the other person is also authorised by the Company to access the Employee Records, or is an Authorised Third Party.
…
Breach of this Policy
The terms of this Policy are not intended to impose legally binding obligations on the Company and do not form part of any employee's contract of employment or terms and conditions of employment. However, all employees must comply with this Policy, and the failure to comply with this Policy may lead to appropriate action, including disciplinary action up to and including termination of employment.”
Evidence of Mr Leslie
Mr Leslie has been employed as the General Manager of Lizard Island by the Respondent since 12 October 2023. In his role, he is responsible for each resort department and the staff at Lizard Island. Mr Leslie regularly liaises with the Heads of Department, which included Mr Jory during his employment with the Respondent.
Upon his commencement in October 2023, Mr Leslie became aware that the previous General Manager had a close friendship with Mr Jory, such that Mr Jory was often afforded greater flexibility and fewer limitations and less oversight in how he conducted his role.
Mr Leslie stated that he integrated greater structure across the Respondent’s departments and would meet with Mr Jory weekly to discuss the work to be undertaken and to provide feedback. Mr Leslie stated that the “free reign” afforded to Mr Jory caused cultural issues throughout the workplace. For example, Mr Jory would invite the staff in his team to have free meals at the guest restaurant, where no other team was permitted to do so. Mr Leslie stated that this practice had seemingly not been approved by anyone, came at a cost to the Respondent, and created tension with other teams. Mr Leslie stated that it caused tension with Mr Jory when he was informed that the practice could not continue.
Mr Leslie also stated that Mr Jory had been involved with the capital expenditure approvals for other departments, which was outside of the scope of his role and left him with unfettered authority over these departments, and interfered with the ability of these departments to have control over their own finances. Mr Leslie stated that he also became aware that Mr Jory would only ever obtain some quotes from one supplier, instead of obtaining multiple quotes to ascertain the most commercially viable option. Mr Leslie was told by other Heads of Department that Mr Jory had a close personal friendship with a particular supplier.
In late 2023, Mr Leslie spoke to Mr Jory and informed him that he would be required in future to bring any future procurement requests to him for approval. Mr Leslie told Mr Jory that the previous General Manager had afforded him power that he should not have had, and that this would change. Mr Leslie said that he told Mr Jory that he needed to be aware of his relationships with other Heads of Department and staff, as there was sense that some members of his team feared him. Mr Leslie stated that Mr Jory responded by saying that these team members were “behaving like children”.
Mr Leslie does not recall any occasion in which he denied a procurement request made by Mr Jory. For expenses amounting to over $500,000, approval needed to be obtained from the Respondent’s head office in New York. Mr Leslie offered this as an explanation as to why Mr Jory may have been frustrated with the delays in financial approvals.
Mr Leslie considered that Mr Jory often refused to perform maintenance tasks within the scope of his role. In December 2023, the Operations Manager asked Mr Jory multiple times to fix a projector, which Mr Jory refused to do.
In December 2023, Mr Jory took leave without approval. Mr Leslie said he was surprised by this as the holiday period is typically a ‘blackout period’ where staff are not usually permitted to take leave. Mr Leslie directed Mr Jory to return to work, saying that other staff had been asking about Mr Jory’s whereabouts and saying that he was not focussed on his role.
On another occasion, Mr Jory informed Mr Leslie that he was going on leave to assist Ms Tayla Andreasen, the Human Resources Manager at the time and who happened to be Mr Jory’s partner. Mr Jory was on leave for three weeks from late-February to mid-March 2024. Prior to Mr Jory commencing leave, Mr Leslie had the following conversation with him:
Mr Leslie:You need to understand that even I report to a Managing Director, a CEO, even I have to request leave and go through the proper channels. You cannot approve your own leave, it has to be verified.
Mr Jory: Well I’ve always done that.
Mr Leslie:You can’t do that. There are issues that I want you to think about. You need to understand that there have been complaints made about you.
Mr Jory:I don’t know if I want to stay here, I want to move on, this isn’t the right environment for me.
Mr Jory:Well you need to think about where you want to be. Take this leave and when you come back, we need to address the areas of complaint against you.
Mr Leslie stated that he allowed Mr Jory to take leave because the last few months had been very stressful for him, with two cyclones and a plane crash occurring in December 2023, all of which caused damage for which Mr Leslie and Mr Jory had to arrange repairs. Mr Leslie said that he also understood there had been a shift in how Mr Jory was to perform his role, however Mr Leslie was also aware of complaints from staff about Mr Jory’s conduct, and Mr Leslie tried to address these through their weekly meetings.
On 5 January 2024, a formal complaint about Mr Jory was made by the Respondent’s Healthy Lifestyle Coordinator for the Lizard Island Resort. The complaint mentioned that Mr Jory:
· was speeding on his boat in breach of the Great Barrier Reef Marine Park laws, and video footage of this was posted to Instagram;
· abused the Friends and Family visiting process by inviting a number of friends to the island without recording this properly and without paying for flights and meals;
· spoke to staff in a rude and degrading manner, calling them “stupid”, “idiots” and “morons”;
· allowed three employees and himself to go on leave during the ‘blackout period’; and
· had been manipulating staff and using a favour-exchange system to undertake his work rather than following the maintenance log.
Mr Leslie stated that the complainant resigned shortly after making the complaint and had cited the issues detailed in the complaint as a factor in the resignation. Mr Leslie also stated that Mr Ward later resigned and informed the Respondent that this was because of Mr Jory and the fact that Mr Jory was not focussed on his role.
On 27 January 2024, Mr Leslie met with three staff members who made the following allegations:
(a)Mr Jory was using his self-appointed authority to threaten staff. A senior manager had reported that after asking Mr Jory to fix something that he did not want to do, Mr Jory said words to the effect of “you need to understand that I can make your life really difficult”. Mr Jory then alluded to the fact that he controls the power and water supply to different areas of the island and can turn these off at any time.
(b)Another manager reported that they had asked Mr Jory not to take gardening machinery out of ‘the House’ area, as it was under warranty so should not be mixed with other items. Mr Jory reportedly said words to the effect of “in that case, we don’t have to use support vehicles for the House.” When asked again to return the gardening machinery, Mr Jory reportedly said, “okay, resort vehicles won’t be used to support you”.
(c)Mr Jory had brought a jet ski on the island using the Respondent’s barge during work hours, and he spent more time on this than performing tasks related to his role.
(d)The Maintenance Team had been fixing their own boats during work hours, while Mr Jory fixed what he wanted when he wanted.
Mr Leslie stated that he was attempting to address these issues informally, recognising that Mr Jory had not been supervised for some time, however Mr Leslie considered that Mr Jory, as a senior employee on the island, should have been aware of the standard of conduct required of him. Mr Leslie stated that had his conduct not improved, he would have likely commenced a formal performance management process in respect of Mr Jory, though this became unnecessary as he was terminated for serious misconduct.
In respect of the requirement for Mr Jory to take urgent maintenance calls after 10:00pm, Mr Leslie stated that on or around 4 April 2024, he was informed by the Operations Manager that Mr Jory had handed his phone to him and said “I’m not doing it, because I don’t get paid. So all the calls will come through to you”. Mr Leslie then stated he had the following conversation with Mr Jory at their next weekly meeting:
Mr Jory:There is an issue with the call outs, what do I do? I’ve been to Jane, I’ve asked about the call outs and how we get paid.
Mr Leslie: To be honest, I’m not aware of it but it would be in the contract.
Mr Jory: But Jane is saying we need to do this and that in order to know.
Mr Leslie:Well yes, she has to do what is correct, as per the contract and your award.
But you’re getting paid for it right?
Mr Jory: Yes.
Mr Leslie:Well even if it isn’t in the contract, if that’s not quite right, we’re not going to stop paying you, because historically, you’ve always been paid that.
We’re not going to change it, it’s not a light switch. For now, they have to find out what’s correct. You continue to be paid as you’ve always been paid. Nobody will not be paid.
Mr Leslie stated that following this conversation, Mr Jory did not raise any callout issues again. He stated that he was under the impression that Mr Jory was satisfied with his response, and that Mr Jory was managing the issue with HR. Both before and after this conversation, Mr Leslie said he had met with other maintenance and staff, none of whom had raised any concerns in relation to callouts.
Mr Leslie stated that he was told by Ms Kennedy on or around 3 or 4 April 2024 that she had received an email concerning Mr Jory sending confidential information to a third party. Soon after, he was told by Ms Kennedy that Mr Jory had sent a number of employment contracts to Mr O’Hara.
On 10 April 2024, Mr Leslie reviewed a letter drafted by Ms Kennedy to Mr Jory in relation to the emails. The following day, he attended the meeting in which the allegations were put to Mr Jory. Mr Jory admitted to sending the emails and said that he had received permission from only one employee to forward their contract to Mr O’Hara. Shortly after the meeting, he had the following one-one-conversation with Mr Jory in his office:
Mr Leslie:Seriously, I want you to tell me, do you understand that what you have done is wrong?
Mr Jory: Yes but others have done far worse.
Mr Leslie:But do you understand that you have sent confidential information out? And you’re not allowed to do that? You have done training about that?
Mr Jory:Yeah, it was stupid and I shouldn’t have done it, but definitely other people have done things far worse.
Following the meeting, Mr Jory’s conduct and employment were discussed between Mr Leslie, Ms Kennedy and Mr Crow. Given Mr Jory’s admission, the training he had received, Mr Leslie’s view that Mr Jory had no reason to seek Mr O’Hara’s advice as his queries had been answered by Mr Leslie and Ms Kennedy, and Mr Jory’s lack of remorse and accountability, Mr Leslie decided that Mr Jory’s employment would be terminated.
A further meeting with Mr Jory was held on 17 April 2024, where Mr Leslie informed him that his employment was being terminated and issued him with a termination letter.
Following Mr Jory’s termination, the Assistant Maintenance Manager, Mr Casey, assumed his duties. Mr Leslie stated that he learned that Mr Casey had not been given access to the Respondent’s system through which procurement requests were raised and approved. It therefore occurred to Mr Leslie that during any period that Mr Jory had taken leave, no other person could make procurement requests.
Mr Leslie stated he was told by Mr Casey that he had never been taught how to use consignment notes, which are critical to the Respondent’s operations. Mr Leslie therefore had to arrange for outside assistance to maintain basic operations.
On or around 30 July 2024, some months following the dismissal, Mr Leslie stated that he was advised by Mr Casey that the vehicle used by Mr Jory in the performance of his duties was not owned by the Respondent. Mr Leslie had seen Mr Jory use this vehicle on a number of occasions, but never questioned that it was owned by the Respondent. Mr Casey told Mr Leslie that the vehicle was owned by National Parks, and Mr Jory used it because it was left on the island. Mr Leslie was concerned by this, as the Respondent had no insurance for the vehicle.
Around the same time, a resident informed him that Mr Jory had given them a television belonging to the Respondent. The resident was shortly moving out of the residence and asked for permission to keep the television, which Mr Leslie denied. The resident was the ex-partner of a former Marine Manager of the Respondent. Mr Leslie stated that he spoke with Mr Casey, who told him that Mr Jory had said that televisions were not being utilised, so he was going to take one for himself and give one to the Marine Manager.
Based on the conduct of Mr Jory he had learned post-termination, Mr Leslie stated that nothing changed his mind about the likelihood of Mr Jory being placed on a performance management plan, had he not been terminated for serious misconduct. Mr Leslie considered that it would be inappropriate for Mr Jory to be reinstated, as the Maintenance Team has flourished since his departure.
In evidence given during the Hearing, Mr Leslie acknowledged that at the time of the dismissal, he was of the understanding that Mr Jory had only provided to Mr O’Hara the employment agreements of Messrs Jory, Ward and Casey. He acknowledged that Mr Jory was probably unaware that he had provided further employment agreements and addendums of other employees.
Respondent’s submissions
The Respondent submitted that there was a valid reason for Mr Jory’s termination, and his dismissal was not harsh, unjust or unreasonable. The Respondent contended that Mr Jory was, throughout his employment, subject to the terms and conditions of his contract and the Respondent’s policies and procedures, which included a duty of confidentiality. The Respondent submitted that this duty was breached by Mr Jory when he sent internal correspondence and employment documents to third parties without the Respondent’s permission.
Clause 32 of Mr Jory’s employment contract states that the terms of his employment are confidential and must not be disclosed to any other person except as required by law, and that any breach of the clause may result in disciplinary action, including termination. Clause 6 of the Respondent’s Employee Records Policy states that employees with access to employee records must not access, use or communicate an employee record to any person unless authorised by the Respondent. Clause 1(c) of the Respondent’s Code of Conduct states that employees must treat all confidential information with care, and only share information with those persons who require such information to perform their role.
The Respondent noted that after Ms Kennedy commenced in her role on 19 March 2024, she met with all Heads of Department, including Mr Jory, who did not raise any concerns with respect to the callout allowance payable to him and his team. Mr Jory asked Ms Kennedy about the allowance on 28 March 2024, and Ms Kennedy assured him that he was being paid for callouts. Mr Jory then asked about whether there was a callout allowance in the contracts of each of his team members.
The following day, Ms Kennedy assisted another staff member who had recently commenced in a different role under a new contract. The staff member noted that a callout allowance was not expressly included in his contract. Ms Kennedy told this employee that he would be paid the allowance as it is an award entitlement. The employee asked Ms Kennedy if the allowance was being removed, and Ms Kennedy stated it was not.
Mr Jory again asked for a response from Ms Kennedy about the callout allowance for his staff. The Respondent noted that before Ms Kennedy was able to respond, on 3 April 2024, she was informed that Mr Jory had sent confidential information to a third-party email address. This had been discovered due to the Respondent’s security systems, not because of any specific monitoring of Mr Jory’s email account.
On 5 April 2024, Mr Jory asked Ms Kennedy to send him all the contracts for his team. Ms Kennedy investigated the potential security breach and discovered that Mr Jory had sent emails to an external email address which included employment contracts. On that basis, Ms Kennedy declined to send any further contracts to Mr Jory and advised him that he should maintain the status quo with respect to his staff. No other staff requested to speak to Ms Kennedy about their contracts.
The Respondent submitted that the conduct of Mr Jory amounted to a breach of the terms and conditions of his employment contract, the policies and procedures of the Respondent and the common law duty of confidentiality he owed to the Respondent. The Respondent noted that it was not in dispute that Mr Jory sent the emails to a third party, and on that basis the Respondent argued that there was a valid reason for Mr Jory’s dismissal.
The Respondent submitted that Mr Jory was notified of the reason for his dismissal by way of the letter dated 10 April 2024, which informed him of the allegations. It further submitted that Mr Jory was afforded an opportunity to respond during the meeting of 11 April 2024, which he attended and admitted to sending the relevant emails. Mr Jory brought a support person to the meetings on 11 and 17 April 2024.
The Respondent rejected Mr Jory’s contention that it was necessary for him to send his and other employees’ contracts to Mr O’Hara, as there was no member of the Maintenance Team not receiving the callout allowance. The Respondent submitted that it responded to any query in relation to the allowance by affirming that it was being paid and would continue to be paid. All staff in the maintenance team, except for Mr Jory, were entitled to the allowance, and Mr Jory was being paid it despite being award-free. The Respondent submitted that if Mr Jory had any concern about the allowance being removed from him because he was award-free, he should have raised this concern with the Respondent. The Respondent did not dispute Mr Jory’s ability and entitlement to seek external advice but argued that there was no justification for sending the contracts and other employment documents of other people outside the organisation.
Any confusion about the callout allowance within the Maintenance Team was, in the Respondent’s submission, caused by Mr Jory. The Respondent submitted that Mr Jory behaved in a fashion that meant his team were unnecessarily dependent on him, and he had a reputation as being someone who wielded power amongst the staff on the island. Given there were over 500 maintenance tasks requiring completion at the time of his dismissal, the Respondent submitted that had Mr Jory not been terminated, he would likely have been subject to a formal performance management process.
The Respondent submitted that Mr Jory is not entitled to any remedy as he was not unfairly dismissed, but should the Commission determine he was unfairly dismissed, both reinstatement and compensation would be inappropriate. The Respondent argued that Mr Jory has not demonstrated he is willing to maintain the standards of performance or conduct required of him by the Respondent, so should not be reinstated to any position within the Respondent’s business. Further, the Respondent argued that Mr Jory’s failure to make any genuine effort to seek further employment means that he should not be entitled to any compensation.
REPLY EVIDENCE AND SUBMISSIONS OF THE APPLICANT
Evidence in reply of Mr Jory
Response to Ms Kennedy’s Statement
Mr Jory stated that the initial meeting with Ms Kennedy on 25 March 2024 was more extensive than suggested by Ms Kennedy, and the notes she took in relation to it did not fully capture the extent of their discussions. He stated that a significant portion of their conversation related to his declining mental health and concerns about the lack of support and transparency he had been receiving from the Respondent. Mr Jory stated that his reference to there being “limited HR issues” within his team was to explain that while his team members did not normally raise any concerns with HR, there were underlying concerns among the team in relation to a lack of support and transparency from management. Mr Jory also stated that he did not raise any concerns with respect to the callout allowance during this meeting, as these concerns only developed after the meeting.
Mr Jory disagreed with Ms Kennedy’s assertion that during the meeting on 25 March 2024 he had demonstrated a lack of awareness of policies and procedures for risk assessments and safety. He stated that that he was aware of these but relied on the Compliance and Safety Officer to oversee these procedures, which was standard practice.
Mr Jory denied that he had refused to service boats. He explained that he provided Ms Kennedy with copies of emails he had sent to Mr Leslie, which were ignored, expressing his concerns in relation to servicing boats, as this was a task that was previously compensated, and when the staff member responsible for it left, the role was not replaced. Mr Jory stated that he was raising a legitimate concern about taking on additional responsibilities without compensation. He further claimed that he had made multiple attempts to establish a routine maintenance system for guest rooms, but guest services were unwilling to assist.
The meeting on around 28 March 2024 was said by Mr Jory to have occurred on 26 March 2024. Mr Jory stated that during this meeting, he provided Ms Kennedy with copies of emails he had exchanged with Mr Crow and Mr Leslie, expressing his feelings of being targeted and ignored. He contended that when he requested a response from Ms Kennedy in relation to his callout allowance query, she stated she would get back to him that day. However, despite Ms Kennedy’s evidence, Mr Jory stated that she did not get back to him that day, and he instead did not receive a response until 28 March 2024.
On 28 March 2024, during his conversation with Ms Kennedy, Mr Jory stated that Ms Kennedy told him that his contract indicated “quite black and white” that he should not be receiving an on-call allowance, and in response to his query, she told him that he should stop submitting the allowances for payroll.
Mr Jory stated that his on-call allowance entitlements had not been paid correctly from April 2023 until his termination, as he was only paid for selected callouts. He stated that Ms Kennedy’s evidence that there were no plans to cease this payment contradicts what she told him during their meeting. He also denied that he only asked Ms Kennedy about his own contract terms. He stated that he asked Ms Kennedy to review the contracts of his team members as well, and the morning after the meeting he sent her the names of his team members, asking her to review their contracts, to which she did not respond.
Mr Jory stated that Mr Woodrow’s contract did not include his salary, allowances or entitlements. Mr Jory said he advised Mr Woodrow to speak to Ms Kennedy, as Mr Jory was not receiving answers to his own questions. He denied that he told Mr Woodrow that the Respondent was planning to make changes to remove the on-call and callout allowances, and instead simply raised a concern that the Maintenance Team might be getting underpaid.
Mr Jory stated that the Maintenance Team was not being paid the correct callout rates pursuant to the award. The team was being paid $30 to take the radio home and $60 per callout hour; however, the award specified a higher rate.
In relation to the written communication he sent to Ms Kennedy on 2 April 2024, Mr Jory stated that he considered three days was a reasonable amount of time for Ms Kennedy to respond to the concerns he raised on 28 March 2024. When he then saw that Ms Kennedy had read his message but had not replied, he considered that his concerns were not being taken seriously. This is what led him to seek Mr O’Hara’s counsel.
It should be noted at this point that 28 March 2024 was the day before Good Friday. The date of 2 April 2024 was the day after Easter Monday.
Addressing the further message he sent to Ms Kennedy on 5 April 2024 asking for a copy of everyone’s contract, Mr Jory stated that he was growing increasingly concerned about the lack of response, and this was a further attempt to resolve the discrepancies in the pay of his team members. He stated that Ms Kennedy’s response describing the contracts as “not tidy” and needing to be “fixed” were vague and added to his frustrations.
In relation to Ms Kennedy’s investigation process, where she discovered that Mr Jory had sent Mr O’Hara the contracts of four other employees and addendums of contracts, Mr Jory noted that he was not informed about the specifics of the emails during the termination process.
Before being informed on 10 April 2024 of the meeting scheduled the following day, Mr Jory stated that Ms Kennedy had an informal conversation with him on 8 April 2024, in which she downplayed the severity of the situation, saying it was not serious and that Mr Jory should not worry. He stated that he was told he would be asked a few questions and would have 24 hours to prepare, and that there was nothing to panic about. Mr Jory stated the inconsistency between this and the letter he received on 10 April 2024 contributed to his confusion and sense of being targeted.
At the meeting, Ms Kennedy stated that Mr Jory described the training session on the Code of Conduct as “a 5-minute video that I skipped over”. Mr Jory contended that he said, “I am aware that there is a policy but did not have a full or deep understanding of it. I thought I did some training earlier this year but wasn’t sure what it involved as I skipped over it briefly.” Mr Jory acknowledged that he did not have a comprehensive understanding of the Code of Conduct, but that he was not seeking to disregard the Respondent’s policies, and instead was trying to address the concerns of his team. He stated that he did not read the Code of Conduct thoroughly before signing, as he was excited to start his new role. He stated that he was not aware of the specifics of the Employee Records Policy and did not sign it.
In evidence given during the Hearing, Mr Jory stated that he watched a video on the Respondent’s Code of Conduct, and he informed Ms Kennedy of this. He said that he ran the video to stop it popping up, but he did not read it.
Once Mr Jory became aware that he had breached company policy, he stated that he expressed remorse and a willingness to correct his actions. During the meeting, Mr Jory formed the view that the decision to terminate his employment had already been made. He stated that he was told by Ms Kennedy during the meeting that he would receive a copy of the meeting notes, which was corroborated by his support person, Mr Cotton; however, Ms Kennedy later denied saying this and refused to provide a copy of the notes.
In respect of the deliberations between Ms Kennedy, Mr Crow, Ms Brennan and Mr Leslie following the meeting, Mr Jory stated that he should have been entitled to a transcript of their correspondence, so he could satisfy himself that the investigation was undertaken, and the decision was made, with due consideration of his responses and the context in which his actions were taken.
Mr Jory stated that he explained to Ms Kennedy and Mr Leslie the areas in which he felt he needed additional staff. He said that the required support was not provided by Mr Leslie.
Mr Jory denied that he told Ms Kennedy that he allowed his team members to take the rest of the day off if they finished their work early. He stated that where his team finished their tasks early, they would be assigned other duties within the boundaries of professional conduct and the Respondent’s policies.
Mr Jory rejected the contention that there were over 500 outstanding maintenance requests at the time of his termination. He stated that the true number was below 100, and he had worked hard to ensure jobs were completed in a timely manner. He stated that he is in contact with the maintenance team, who have confirmed there was no significant change in the completion of tasks after his departure.
Response to Mr Leslie’s statement
Mr Jory stated that since Mr Leslie’s employment, six Heads of Department and numerous staff have left the Respondent. He suggested that this indicates Mr Leslie has had a negative impact on the Respondent and staff morale and retention, and that any issues with the Respondent were systemic, and not related to his own conduct.
Mr Jory denied that he had a close friendship with the previous General Manager, stating that the relationship was strictly professional. He was provided with information necessary to perform his duties, not out of any personal favouritism.
In response to Mr Leslie’s statement that he integrated greater structure across the departments, Mr Jory stated that this was incorrect, and he faced challenges in his role due to the withholding of information and lack of responsiveness to his inquiries. Mr Jory stated that promises to increase funding and resources were never fulfilled. He stated that all Heads of Department experienced this, and they all eventually left their employment with the Respondent or were terminated, with Mr Jory being the last to depart.
Mr Jory rejected the statement that he allowed his team to dine at the guest restaurant without approval. He stated that the previous General Manager approved this practice for all Heads of Department as a team bonding exercise with a pre-set budget on either a fortnightly or monthly basis.
Mr Jory denied the claims that he favoured a particular supplier, stating that he consistently obtained multiple quotes, and prioritised local businesses that had been used by the Respondent previously. He denied that he had personal relationships with any suppliers. He stated that he did try to build working relationships with suppliers to ensure he was able to obtain timely assistance and competitive quotes when required. Mr Jory explained that he always submitted procurement requests to the General Manager for approval, as he was never in a position to approve purchases himself. He stated that he was subjected to a requirement to provide three quotes for day-to-day, operational expenditure items, where no other Head of Department was required to do so.
Mr Jory rejected that he was afforded any additional power by the previous General Manager. He claimed that Mr Leslie tried to lower his status within the Respondent, and that he was being micromanaged and targeted, and that this was something that other Heads of Department also experienced, leading to resignations.
Mr Jory denied that his team feared him and stated that he maintained close relationships with staff across all teams. He rejected that he described his team members as “behaving like children”. He stated that he did make a comment in relation to the spreading of rumours but said that his approach was always professional and supportive, and expected that had any of his staff had any concerns with his management style, they would raise these directly with him.
On numerous occasions, Mr Jory stated that he had to repeatedly request approval for small purchases. Often these requests went unapproved without explanation, and requests submitted by others after Mr Jory’s requests were approved first. He stated that the Spa Manager also experienced similar treatment. Mr Jory stated that he was aware of the approval process for larger purchases, but noted that for approvals to occur, the requests needed to be submitted by management in the first place. He claimed that when he inquired about the progress of projects, he was not given any information by the Respondent. This resulted in delays which affected his ability to manage projects.
Mr Jory refuted the claim that he refused to perform tasks within the scope of his role. He stated he never refused a maintenance task. Where he was unable to take immediate action, he stated that he would advise that the request should be emailed or logged in the maintenance system so it could be addressed as soon as possible. Mr Jory stated that he was highly organised and meticulously planned his day, completing tasks methodically. However, despite this, the departure of Heads of Department led to an influx of maintenance requests. Mr Jory stated that his team was also understaffed, but nevertheless he remained committed to ensuring that all tasks were managed effectively.
In relation to the allegation that Mr Jory said words to the effect of “I don’t want anything to do with this” in response to a request from the Operations Manager to fix a projector, Mr Jory said this conversation was taken out of context and inaccurate. He stated that the Operations Manager asked him to set up a projector on New Year’s Eve at 9:00pm. Another employee, Lauren, said “It’s fine, Lewis and I will set this up later”. Mr Jory stated that there was no technical issue with the projector that needed fixing; it simply needed to be set up.
Mr Jory said that he did not take leave without approval in December 2023. He stated that the leave was approved by the Operations Manager and submitted to the monthly spreadsheet in accordance with standard practice. Further, Mr Jory said that he left before the ‘blackout period’ and stated that he informed Mr Leslie, who approved the leave.
Mr Jory denied that he had said to Mr Leslie that he intended to move on. Mr Leslie asked who had approved Mr Jory’s leave, to which he replied that it had been approved by the Operations Manager as Mr Leslie was not on the island at the time. Mr Jory stated this situation was not uncommon, as Mr Leslie frequently travelled. He stated that he was aware of the Respondent’s processes in relation to the approval of leave. Mr Jory stated that during his conversation with Mr Leslie, he raised that he was struggling and not feeling supported, and asked Mr Leslie for advice, who said, “just go out and we will talk when you get back”. Mr Leslie stated that he received many emails from Mr Leslie and Mr Crow while he was on leave, which indicated that he was being targeted.
Mr Jory denied that Mr Leslie was attempting to correct his conduct and attitude in their weekly meetings, describing the meetings as infrequent and not directed towards his conduct or attitude. When Mr Leslie raised a concern about the perception of Mr Jory, Mr Jory stated that he asked for further details, but none were provided.
In response to claims that members of Mr Jory’s team suggested that his absence in January 2024 caused them stress and they considered that he was not focussed on his work, Mr Jory denied that he was distracted and stated that members of his team who were close friends never mentioned any such concerns. Mr Jory stated that he was only off the island for a few days in January 2024 to repair his vessel, and during this period he consistently checked in on his team and worked as needed. Mr Jory further questioned why these concerns, if genuine, were not raised with him upon his return.
In relation to the complaint made by the Healthy Lifestyle Coordinator on 5 January 2024, Mr Jory stated that the issues in the complaint were not previously raised with him. Regarding the specifics of the complaint, Mr Jory responded as follows:
· He did not operate his boat in breach of Great Barrier Reef Marine Park laws and has not been supplied with any video evidence of any breach. He maintained that he is always careful in how he operates a vessel around the reef and maintains good communication with marine park authorities.
· He denied that he abused the friends and family visiting process and ensured all costs were paid for appropriately.
· While acknowledging that he may have occasionally used terms such as “morons”, this was light-hearted and not intended to be taken seriously.
· He stated that he approved leave for one long-standing employee during the ‘blackout period’ to allow him to see his children for the first time in six years. He acknowledged that he could have discussed this leave request further with management.
· He denied that he employs a favour exchange system with his team. He stated that work is always undertaken according to the maintenance log.
Mr Jory stated that the Healthy Lifestyle Coordinator’s resignation was to undertake support aid work in Africa, though he noted that she had expressed to colleagues that she felt pushed out of her role, was frustrated about not receiving responses from management and feeling unsupported, and at one point she broke down in front of Mr Jory. Mr Jory stated that these factors also contributed to her departure.
Mr Jory denied that Mr Ward departed because of him and noted that it would be unlikely that Mr Ward would have appeared as a witness for him had this been the case. Mr Jory stated that Mr Ward left because his partner had recently left the island and because of the food quality on the island.
Mr Jory denied that he ever threatened any staff member or suggested that he would make their life difficult. He stated that he never suggested that he had control over power and water on the island or that he would misuse his authority.
In relation to the concerns raised about Mr Jory taking gardening machinery out of ‘the House’ area, Mr Jory stated that the gardeners would sometimes borrow this equipment without his knowledge or approval. Mr Jory said that he asked the House Operations Manager whether this was acceptable, who said that it was. Mr Jory further stated that the borrowed equipment was always returned. He stated that he occasionally had to restrict access to maintenance buggies as some were out of order and others were needed for essential maintenance tasks, but this was only ever done out of necessity.
Mr Jory stated that while he did bring a jet ski onto the island, this occurred during the island closure, and he never used it during work hours.
Mr Jory stated that the issues raised in complaints about him were never raised directly with him, and where they were raised with him, he was never provided with any guidance on how he could improve. He noted that he was never formally managed or provided an opportunity to address any performance issues.
While Mr Jory acknowledged that as part of his role as Maintenance Manager, he was required take urgent maintenance calls after 10:00pm, he stated that this only became part of his role from April 2023. He stated that not all of these calls were for urgent repairs and were sometimes in relation to issues such as guests being lost or missing bags. He stated these calls were outside of his scope.
Mr Jory denied that he handed his phone to the Operations Manager and said, “I’m not doing it, because I don’t get paid. So all the calls will come through to you”. He claimed he had a good relationship with the Operations Manager, who left the Respondent around the same time as him, citing reasons of feeling unsupported and ill-informed.
Mr Jory said that his conversation with Mr Leslie in relation to the callout allowance happened after he had raised the issue with Ms Kennedy and did not receive a satisfactory response. He stated that he did not raise the issue again with Mr Leslie because he was off the island and no future meetings were scheduled. Despite Mr Leslie’s evidence, Mr Jory stated that he was informed by two staff members that they had also raised questions about the callout allowance with the Respondent.
Mr Jory argued that Ms Kennedy’s investigation into the emails he had sent was not thorough, and failed to include emails that would have demonstrated the context of his actions.
Mr Jory stated that he obtained permission from current employees before forwarding their contracts to Mr O’Hara. In respect of Mr Ward, Mr Jory stated that he works remotely in area with limited mobile phone coverage, so he was only contactable after he finished work.
Mr Jory stated that Mr Leslie provided an incomplete account of the conversation they had after the show cause meeting. Mr Jory provided his account of the conversation as follows:
Mr Leslie:This will be quick. Mate, I just walked into this. What the fuck, what did you do?
Mr Jory:I literally asked her, and I’ve waited like a week to get a response from her. I even messaged her again, and she didn’t respond to me for 3 or 4 days, so like I’m reaching out to her, and she’s not responding to me. My team are fucking hounding me constantly like…
Mr Leslie: What was this on, the call out?
Mr Jory: On the call outs, yeah.
Mr Leslie: You and I spoke about it, right?
Mr Jory:Vaguely, but then on Dylan’s contract it’s saying he gets 4 hours penalty rates for going out, Tom says… I don’t even know what nay of their contracts say because I don’t have any of them. I don’t know anything about anyone, all I do is what I’m told, which is put call outs in and go this is this. Then she’s sorry, I’m like can you give me an answer, and then she responds when I say I’m going away for the weekend and says she’s looking into it with payroll like 5 days after I asked to follow up on it again.
Mr Leslie: You, I mean you get what you’ve done is not right.
Mr Jory:Yeah, I get it. I didn’t think it was the worst thing for Tim as he was no longer here, so I didn’t think it was valid.
Mr Leslie: And this has come from the States.
Mr Jory:Which I find interesting as she asked me about him [Trevor] saying where he works and that’s not in his email. So obviously, they have Googled him and seen he worked for Crimestoppers and all that sort of stuff so he’s a--
Mr Leslie: It’s on your resume.
Mr Jory:--confidant, that’s where he is, not at Scouts Queensland as an Assistant Chief Commissioner.
Mr Leslie:It’s on your resume as one of your referees. Anyway, shit flows downhill, mate. It sits with the guys in the States, and obviously, I read the code, and as I had to for employment, it’s pretty clear.
Mr Jory: Yeah, okay.
Mr Leslie: Anyway, go, go out, get out, see what they deal with.
Mr Jory:Okay, fair enough. At the time, everyone was in the office, so I didn’t think I was breaking any type of privilege, and they all said yeah, it’s okay, and I thought there wouldn’t be an issue.
Mr Leslie:You can’t send company stuff out; you can only send stuff into your work email from your personal. I do that all the time. Anyway, you are on the 12, yeah?
Mr Jory: Yeah, I’m on the 12. I will go home and shower and pack quickly.
Mr Leslie:Well, I’m out tomorrow and will be back next week; I have to take Lachie home.
Mr Jory: Well, have fun with that.
Mr Leslie:Um, fuck, mate, you’re smart, that’s not smart. And the call out thing, I don’t… I mean, we spoke about it, and I just said we gotta do what he have to do if it’s always been done, that’s how it was. I don’t even know where it got stopped. I think you said Sideen mentioned something, right?
Mr Jory:No, I originally went to her, and said I have the maintenance after-hours phone in my room 24/7, and is that something I should… I said to her should I be getting paid an on-call allowance for having the phone? Because if I have it every night, I’m on call every night, like is that something I should put down for being on call? And Jane said no, in my contract it says as clear as black and white it’s this (that on call is inclusive). Dan was in the room, and we were open about certain matters, and when I told him he wanted to know about his contract, so we tried to look, and Peter was in the room and said he’s not going to fucking do it if he’s not going to be paid. So I’m trying to keep everyone doing on-call so we actually have support here after hours, and if they’re all not going to get paid but it says in their contract it’s required or expected or whatever, they’re all going to say no we don’t have to do it legally, and we would have no support, and I’ll end up being the only one doing it.
In Mr Casey’s case, the Respondent submitted that Mr Jory has merely asserted that he had consent without any supporting evidence from Mr Casey.
In respect of the reasons given by Mr Jory for disclosing the contracts, the Respondent submitted that Mr Jory has provided conflicting evidence. The Respondent referred to the fact that Mr Jory stated during cross-examination that he sent Mr Ward’s contract to assist Mr Ward, despite knowing that Mr Ward was no loner employed by the Respondent, but also said that he sent the contract “for my team” and in the hope Mr Ward had been underpaid and would be entitled to a claim against the Respondent.
The Respondent also highlighted Mr Jory’s disclosure of his concerns about the callout allowance. It described Mr Jory’s evidence on this point as follows:
· on 25 March 2024, his concerns regarding the allowance had just started to develop;
· on 26 March 2024, he asked Ms Kennedy about the allowance, and she returned to him on 28 March 2024;
· he first asked Ms Kennedy to check the allowance issue in relation to his team on 28 March 2024 despite suggesting it was a long-standing problem;
· he sent emails to Mr O’Hara as early as 2 April 2024;
· his evidence that he contacted Mr O’Hara on 2 April 2024 because he followed up Ms Kennedy on 2 April 2024 and received no response was incorrect, because he later admitted that he sent the contracts before following up with Ms Kennedy; and
· he considered he had exhausted all internal opportunities to seek advice in relation to the allowance issue, and his only choice was to send the material to Mr O’Hara.
From this, the Respondent submitted that it can be concluded that Mr Jory’s evidence that the allowance issue was long-standing is misleading, because he later indicated that the issue only started to develop in late-March 2024 and did not raise it with Ms Kennedy until 28 March 2024. The Respondent submitted that Mr Jory knew that he was awaiting a response from Ms Kennedy yet sent the material to Mr O’Hara 5 days later, in circumstances where he must have known it was improbable Ms Kennedy would respond to him before 2 April 2024. The Respondent therefore submitted that it cannot be concluded that he was attempting to assist his colleagues and that he had exhausted all internal avenues and was left with no option but to seek external assistance.
The Respondent submitted that Mr Jory accepted Mr O’Hara was not authorised to accept confidential information and submitted that had Mr Jory consulted the Respondent’s policies before sending the material, he would have reached this conclusion. The Respondent further submitted that Mr Jory was dishonest with Mr O’Hara, as his evidence was that Mr O’Hara knew that Mr Ward was no longer an employee of the Respondent following their conversation, but Mr O’Hara’s evidence was that he had not discussed Mr Ward’s employment status with Mr Jory. On this basis, the Respondent submitted that it can be concluded that Mr Jory was not concerned with assisting his team members, but instead sought to obtain any information he could to discredit and harm the Respondent. The Respondent further contended that Mr Jory did not produce any cogent evidence of discontent among his team. The only evidence to this effect was that of Mr York, which the Respondent submitted was hearsay, of a general nature, and unable to be tested through cross-examination at the hearing.
In relation to Mr Jory’s knowledge of the Respondent’s policies, the Respondent noted that Mr Jory’s contract stated that it was his responsibility to acquaint himself and comply with the Respondent’s policies and procedures and to seek advice from his manager if he had any uncertainties about them. The Respondent submitted that s.333B of the Act does not assist Mr Jory, as it was not his own remuneration that he was disclosing, but that of his colleagues, among other confidential information. The Respondent submitted that there was no legitimate business need for Mr Jory to send the material to Mr O’Hara, and in doing so, intentionally or otherwise, Mr Jory did not pay regard to the Respondent’s directives regarding the use of confidential information despite having committed in his contract to do so. The Respondent argued that Mr Jory cannot rely on the assertion that he did not read some or all of the Respondent’s policies.
In relation to whether Mr Jory intended to send the additional material to Mr O’Hara, the Respondent submitted that Mr Jory’s credibility is important in assessing this question. The Respondent argued that the Commission can draw adverse inferences in relation to Mr Jory’s honesty and credibility, given:
· his lack of candour regarding how and when Mr Ward’s consent was obtained;
· his dishonesty regarding the steps he had taken to pursue the issue with Ms Kennedy;
· his evidence about the extent to which the allowances issue was long-standing;
· his evidence about motive for sending the material to Mr O’Hara; and
· the extent to which he knew of the Respondent’s relevant policies and procedures.
Therefore, the Respondent submitted that while it is possible that Mr Jory was unaware he was sending additional material to Mr O’Hara, it is implausible. The Respondent contrasted this with the demeanour of its witnesses, who it argued were forthright in admitting they had made a mistake by overlooking the additional material. Ms Kennedy further accepted the possibility, when questioned by me, that it could have been a mistake on Mr Jory’s part. If Mr Jory was genuinely unaware, the Respondent submitted that the alternative conclusion was that he was reckless with his colleagues’ data. The Respondent submitted that Mr Jory was either seeking to damage the Respondent or was reckless as to whether he did so.
Ultimately, the Respondent submitted that Mr Jory was dismissed for a valid reason, and the dismissal was not harsh, unjust or unreasonable, by virtue of him having sent confidential documentation to an external third party in breach of the Respondent’s policies and procedures. The Respondent submitted that it should be entitled to rely on the conduct discovered after the dismissal, as Mr Jory would suffer no prejudice as a consequence. Regardless of whether his conduct was intentional, the Respondent submitted Mr Jory’s actions were careless.
CONSIDERATION
A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:[3]
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer act, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter.[4]
s.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)
When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:
“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 reasons must be valid in the context of the employee’s capacity or conduct or based on upon the operational requirements of the employer’s business. Further, in consideration 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 treated fairly’.”
Mr Jory gave evidence in cross-examination that he had discussed with Mr O’Hara that Mr Ward was no longer an employee of the Respondent when he sought advice in respect of Mr Ward’s contract. During the Hearing, Mr Jory stated that Mr Ward finished his employment with the Respondent in February 2024.
In answering questions from me as to why he would be making inquiries about Mr Ward’s past entitlements, Mr Jory answered as follows:[5]
Commissioner: What did you think, that despite Mr O'Hara's advice Tim might have still been owed some money?
Mr Jory:No, after Mr O'Hara's response that (indistinct) that me, myself, Dan and Tim were not entitled to any call out pay.
Commissioner: Well, I mean one would never know, Mr Jory, until one looks at how many call outs one does. Maybe your $110,000 was enough, maybe it wasn't, but who knows in respect to Tim. If you got a sniff that Tim had been underpaid you can understand there that he might then bring an underpayment claim against your employer, mightn't he?
Mr Jory:Possibly, yes.
Commissioner: And were you hoping that he might have been underpaid and be entitled to a claim against your employer?
Mr Jory:I'm not sure if I was hoping at the time; I possibly was. Yes, I can't answer that for certain.
Commissioner: Why would you acting in Tim's interests over your employer's interests?
Mr Jory:As Tim is a personal friend and the circumstances he left weren't great. Yes, possibly at the time I was thinking that, you know, if I could get him some sort of remuneration for incorrect pay then that would be good for him.
Commissioner: Good for him, bad for your employer?
Mr Jory:I think it's good for him, and if it's incorrect for the employer then it gets fixed and we don't have issues.
Commissioner: What avenues do you think Tim might have if he felt that he was owed some money?
Mr Jory:I'm not sure.
Commissioner: Tim couldn't have gone to the Fair Work Ombudsman and made his own enquiries?
Mr Jory:He could have, yes.
Commissioner: You do know about that avenue?
Mr Jory: No.
Commissioner: You only know because I said so?
Mr Jory:Well, no, I didn't know - I thought you could only go to the Fair Work after a certain amount of days, or is that just for unfair dismissal?
Commissioner: The Fair Work Ombudsman is different to the Fair Work Commission?
Mr Jory:Okay.
Commissioner: Do you know anything about the Fair Work Ombudsman?
Mr Jory: No.
Commissioner: So you thought you'd ask your trusted mentor about Tim, a former employee, and give him some advice that may entitle him to an underpayment claim?
Mr Jory:Yes.
Commissioner: You didn't suggest to Tim that he might make his own enquiries?
Mr Jory: No.
I accept that the Respondent takes no issue with Mr Jory sharing his own employment contract with Mr O’Hara for advice.
I find that Mr Jory did obtain the permission of Mr Casey to send his employment contract to Mr O’Hara for review, prior to sending it. Any suggestion by the Respondent that that Mr Jory fabricated Mr Casey’s permission is not accepted and frankly, ought not have been made. Mr Casey is presently employed by the Respondent, was promoted when Mr Jory was dismissed and if it genuinely had an issue with whether Mr Casey gave permission for his employment contract to be shared, the Respondent would have called him to give evidence.
Mr Casey is entitled to give permission to Mr Jory to act as agent in making inquiries on his behalf in respect of his employment conditions. I am satisfied that he did so, and Mr Jory then acted on that authority by seeking the advice of Mr O’Hara. Despite the Respondent’s workplace policies, I am satisfied that Mr Jory was entitled to do that, and I do not consider that would constitute a valid reason for the dismissal.
Mr Jory gave evidence that he felt he had no choice but to contact Mr O’Hara.[6] Mr Jory’s impatience in late March 2024 to obtain an answer from Ms Kennedy, the newly minted HR Manager is incredibly disappointing. He addressed the issue with her on 26 March 2024, with Ms Kennedy providing a response on 28 March 2024, the day before Good Friday. By very early the following Tuesday, the day after Easter Monday, Mr Jory was sending off the emails to Mr O’Hara for advice. Mr Jory was seeking an Easter miracle; there is only one Easter miracle.
If Mr Jory had only sent his employment contract and that of Mr Casey’s (with Mr Casey’s permission) to Mr O’Hara, my view is that there would not be a valid reason for the dismissal.
However, Mr Jory’s evidence as to why he sent to Mr O’Hara the employment contract of a former employee, Mr Ward, is disturbing. Mr Jory was not acting in his employer’s best interests when he sought advice in respect of Mr Ward and whether Mr O’Hara considered that he would be entitled to an underpayment of wages claim. Mr Jory’s evidence is clear that he had informed Mr O’Hara of Mr Ward’s cessation of employment. Mr Jory put the potential interests of Mr Ward above those of the Respondent.
At times, employees may act as whistleblowers and seek regulatory assistance if they hold genuine concerns their employer is in breach of relevant obligations. Dependent upon the circumstances, there is nothing inherently wrong with that, although it would be hoped an employee would provide an employer an opportunity to properly investigate any concerns before taking external action.
Some employees are tasked with obtaining advice on behalf of their employer to understand any potential exposure in respect of underpayment of entitlements to employees.
In this case, given the haste of Mr Jory’s concerns, his role as a manager and the failure to afford Ms Kennedy any time to properly consider his concerns, it cannot be accepted that Mr Jory had no choice but to seek the advice of Mr O’Hara in respect of Mr Ward’s employment contract on 2 April 2024.
Mr Jory’s email account was not being scrutinised; it was, in fact, the act of sending the various emails with attachments to Mr O’Hara which alerted the Respondent’s sophisticated data monitoring system to Mr Jory’s conduct.
Mr Jory chose not to properly read the Respondent’s Code of Conduct and Employee Records Policy. It was within his capacity to do so, but he chose to skip over these important documents; he did so at his peril.
I do not accept that Mr Leslie’s conduct towards Mr Jory was overbearing or constituted micro-management. On the evidence before me I accept that Mr Jory had been running a bit of a loose ship prior to Mr Leslie’s appointment on the island and Mr Leslie’s management of him was reasonable in all of the circumstances. Mr Leslie confirmed with Mr Jory on 4 April 2024 that the callout entitlements were not changing and satisfied himself that Mr Jory was being paid such an allowance.
On the evidence before the Commission, I find that Mr Jory was not acting in his employer’s best interests when he sent Mr Ward’s employment contract to Mr O’Hara without permission of the Respondent. He did so in breach of the Respondent’s policies and on the evidence given during the Hearing, it is my view that Mr Jory hoped that Mr Ward would become entitled to an underpayment of wages. I am satisfied this is a valid reason for the dismissal.
For the sake of clarity, I am satisfied that Mr Jory and Mr Ward spoke around midday on 2 April 2024 about Mr Jory having forwarded Mr Ward’s contract to Mr O’Hara. I consider it does not matter that Mr Ward was comfortable with Mr Jory forwarding his contract to Mr O’Hara; it matters that Mr Jory was not acting in the best interests of the Respondent and was in breach of various policies.
In respect of the other employment agreements and addendums to employment agreements sent by Mr Jory to Mr O’Hara on 2 April 2024, I find that these were sent inadvertently. Mr Jory did not take sufficient care to review the attachments within the July 2023 email he forwarded to Mr O’Hara in April 2024. If he had taken sufficient care, he would have realised the email contained much more than Mr Casey’s employment agreement.
The result of Mr Jory’s inattention is that ultimately five employment agreements were forwarded by him to Mr O’Hara, together with six addendums. Excluding Mr Casey and Mr Ward, five employees were affected by Mr Jory’s security breach. I do not consider that would constitute a valid reason for the dismissal.
I have found at [227] that there is a valid reason for the dismissal.
s.387(b) - Whether the person was notified of that reason
Mr Jory was informed that one of the reasons for the dismissal was he had sent an email containing the employment contract for a former employee to an external third party, resulting in him disclosing confidential information without authorisation.
I am satisfied he was notified of that reason.
s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
A meeting was held with Mr Jory on 11 April 2024. I consider that Mr Jory was honest during the meeting, including advising that he did not have Mr Ward’s permission at the time of sending the employment agreement, but he did obtain permission afterwards.
Following this meeting, Mr Jory explained to Mr Leslie that he considered he had given Ms Kennedy enough time to investigate his concerns before approaching Mr O’Hara, which realistically was only the period of Easter.
Mr Jory submitted that other employees had done worse than him.
s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person. The Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542] states the following:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”
In the circumstances, I find that the Respondent did not unreasonably refuse to allow Mr Jory to have a support person present at discussions relating to the dismissal on 11 April 2024 nor at the meeting to terminate his employment on 17 April 2024.
s.387(e) – If the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal.
The dismissal did not relate to unsatisfactory performance; it was due to misconduct.
s.387(f) - Whether the respondent’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed
The Respondent had sufficient human resource expertise, and it is not a small employer. I do not consider these matters impacted on the procedures followed.
s.387(h) – Other matters
Both Mr Leslie and Ms Kennedy considered that Mr Jory did not show remorse when the issue was put before him. Mr Jory considers that he was sufficiently remorseful. Having heard all of the evidence before the Commission and having had regard to the submissions of the parties, I consider that Mr Jory was not remorseful and downplayed the effect of his conduct on the Respondent.
Having regard to Mr Jory’s attitude towards the issue and the significance of the issue to the Respondent involving breaches of its policies, I do not consider the dismissal to have been disproportionate to the misconduct engaged in by Mr Jory.
It was also disturbing to learn that Mr Jory knowingly drove an uninsured vehicle on the island. His action in doing so was cavalier and irresponsible. Mr Leslie did not learn that this vehicle was uninsured until some months following the dismissal. Mr Jory’s conduct in knowingly and repeatedly driving an uninsured vehicle constitutes serious misconduct and would also constitute a valid reason for the dismissal.
I have considered Mr Jory’s submission that he was feeling isolated and unsupported on the island. This does not excuse his conduct.
Conclusion
I have determined that there was a valid reason for the dismissal.
I have determined that Mr Jory was given an opportunity to respond to the reasons for the dismissal.
There was no unreasonable refusal by the Respondent to allow Mr Jory a support person.
The dismissal was not in respect of poor performance; it was for misconduct.
The Respondent’s enterprise is not small. It had dedicated human resource expertise.
In respect of other matters, I have determined that Mr Jory engaged in other misconduct which would constitute a valid reason for the dismissal. This was not known to the Respondent at the time of the dismissal but is a relevant consideration.
I find that the dismissal was not harsh, unjust or unreasonable.
The application is dismissed. An order [PR784586] will be issued with this decision.
COMMISSIONER
Appearances:
C Ryall of Counsel, instructed by J McAlister of WGC Lawyers Pty Ltd, for the Applicant.
M Brooks of Counsel, instructed by B Motro of Piper Alderman, for the Respondent.
Hearing details:
2024.
Brisbane.
5 & 25 September.
Final written submissions:
1 November 2024.
[1] Alverson v Artcraft Pty Ltd (2017) 274 IR 123, citing Shepherd v Felt and Textiles Co of Australia Ltd (1931) 45 CLR 359, 377.
[2] Lane v Arrowcrest Group Pty Ltd (1990) 99 ALR 45, 75.
[3] (1995) 185 CLR 410, [465].
[4] Sayer v Melsteel [2011] FWAFB 7498 at [20].
[5] Transcript PN450 – PN462.
[6] Transcript PN367.
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