Rosa Diehm v Toll Transport Pty Ltd T/A Toll Customised Solutions

[2012] FWA 8818

[2012] FWA 8818

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rosa Diehm
v
Toll Transport Pty Ltd T/A Toll Customised Solutions
(U2012/5496)

COMMISSIONER GAY MELBOURNE, 7 NOVEMBER 2012

Termination of employment - arbitration.

[1] On 28 February 2012 Ms Rosa Diehm (the Applicant), previously a store-worker employee of Toll Customised Solutions, a division of Toll Transport Pty Ltd (Toll, the Company) made application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy following the termination of her employment on 21 February 2012. The reason given by Toll for summarily terminating Ms Diehm’s employment was confirmed in its letter of 22 February; that Ms Diehm had made false and misleading statements to her employer and that Toll considered by reason of such serious misconduct the employment relationship had “completely broken down”.

The Background

[2] Ms Diehm had been employed from 20 June 2011 (having previously worked as a casual for some three months) at the Truganina, Victoria, site of the Company, which has a principal purpose in distributing supplies to Kmart stores throughout Australia. The events around which this case ostensibly revolve occurred in February 2012, although it will become clear that the eight months or so of Ms Diehm’s employment were anything but uneventful. Both sides have spent much time in attempting to, alternatively, in the Company’s case, rely on those incidents or events within Ms Diehm’s brief permanent service as negatively characteristic of seriously flawed employment and in the National Union of Workers (NUW) view as irrelevant, or minor or otherwise unavailable to Toll.

Jurisdiction

[3] It is clear that Ms Diehm was a person whose employment was protected from unfair dismissal because Ms Diehm had satisfied the s.382 requirement by having completed the minimum employment period (s383(d)) and all of the s.382(b) considerations apply to her. It was common ground that a dismissal had occurred, that it was said to be harsh, unjust or unreasonable; that the Small Business Fair Dismissal Code was not applicable and the dismissal was not a case of genuine redundancy.

[4] In light of these considerations I concluded Fair Work Australia had jurisdiction to entertain the application. Toll and the NUW agreed that this was so.

[5] Having considered the procedural matters provided in s.396 and s.399 (and having first endeavoured with the cooperation and agreement of the parties to resolve the matter through private discussion and conciliation) it was necessary to deal with the matter by conducting a hearing to hear the evidence and submissions sought to be put.

The Hearing

[6] The evidence was heard in Melbourne on 2 and 3 July 2012 and for the final oral submissions of Mr D Mujkic of the National Union of Workers (NUW), appearing with Ms M Segan, for its member Ms Diehm, and Ms C Fitz Gibbon of counsel, appearing by permission, for Toll, on 24 July 2012.

The Witnesses

[7] Evidence was given by Ms Diehm and for the Applicant, Ms Katherine Louise Hilt, NUW Organiser, also gave evidence. For Toll, evidence was given by Ms Karen Phuong Luu, Employee Relations Manager at the Truganina plant, Mr Matthew Smith, also a Toll Employee Relations Manager, Mr Jason Christopher Alsop, Senior Business Manager, and Ms Michelle Weise, Occupational Health and Safety and Return to Work Manager.

The Background and the Reason for Dismissal

[8] After some two months of permanent employment Ms Diehm reported that she had injured her back at work, lodging a workers’ compensation claim shortly afterwards. Following treatment and some time off work, Ms Diehm’s hours gradually increased and her duties altered as she recovered. At about the New Year, Ms Diehm’s discomfort increased and she sought further medical attention at the end of January 2012. Ms Diehm’s evidence was that on 2 February 2012 she felt very stiff and sore and visited her doctor who issued a certificate indicating that Ms Diehm could not perform her duties from 2 to 12 February 2012. During this period of absence Toll came to question Ms Diehm’s bona fides, largely it seemed because Ms Diehm was not contactable at her home when it was thought that being so unwell, in pain and restricted in her movements, she would be likely to be confined. It is apparent that Toll’s confidence in Ms Diehm had also been eroded by a series of occurrences during the eight and a half months of Ms Diehm’s permanent employment. Both parties’ cases devoted considerable time to a review of these events and it will be necessary to comment further as to the competing accounts below.

The WorkCover Form

[9] It is convenient to have regard for the submissions put for Ms Diehm in taking up the narrative.

[10] During the period of Ms Diehm’s February 2012 WorkCover absence commencing from 2 February an administrative difficulty arose as to an unsigned WorkCover injury form. It seems because Ms Diehm had neglected to sign part of the form returned to Toll. Ms Weise, responsible for the administration of the Victorian Accident Compensation Act entitlements, had made contact with Ms Diehm by telephone on several occasions. Toll self-insures for WorkCover matters. It was Ms Weise’s evidence that to minimise delay and inconvenience to the Applicant, and because of Ms Diehm’s conduct during delays experienced in administering the Applicant’s earlier WorkCover claim, she couriered a claim form to Ms Diehm on Tuesday February 7.

[11] Ms Diehm did not receive the couriered form on that day and for this reason the courier left a number for Ms Diehm to contact. Ms Diehm then arranged to be at home for the form to be delivered to her the next day, Wednesday 8 February. Apparently not appreciating that the courier service would return the completed form to Toll when advised by the recipient, Ms Diehm says she took the Toll courier form to the Post Office where, in her account, a tall, young, dark man received the courier envelope for posting and scanned it. When the form did not arrive at the Toll Truganina site by Thursday 9 February, Ms Weise advised Ms Diehm.

Friday 10 February 2012

[12] Ms Diehm’s further account was that the envelope was returned to Ms Diehm marked “return to sender”. Early on Friday 10 February Ms Diehm called Toll and advised a manager that she would drop the form off later that day.

[13] A little later (at about 9.15 am in Toll’s understanding and in Ms Diehm’s errant recollection to Toll in the later meetings, between 10.00 and 10.30 am) and with her back “starting to feel quite sore”, Ms Diehm rang and advised Ms Weise that she would not be able to undertake the thirty minute odd each-way drive delivering the form to the Toll works.

[14] After several further calls between Ms Weise and Ms Diehm it was agreed that Ms Weise would call at Ms Diehm’s home that day to collect the form to permit Ms Weise to continue the WorkCover claim process. Ms Diehm says she told Ms Weise to come anytime because she would be home. In Ms Wiese’s account Ms Diehm said she would be home all day, was sore and becoming depressed. Ms Diehm’s account had a different inflection; that she had never been depressed but that it was depressing being at home feeling sore.

[15] At 10.13 am Ms Diehm was observed by a Toll investigator leaving her home, driving for 12 minutes to a supermarket, buying “a small amount of food shopping” and then driving for 13 minutes back to her home. I have taken it that allowing for the time it took Ms Diehm to park and walk to the supermarket, her recorded departure from the store at 10.38 am means her total visit in the store extended for not more than 10 minutes. At 1.47 pm Ms Diehm was seen to drive for some 35 minutes to her sister’s home arriving at 2.22 pm (Investigator’s report, page 3, Attachment 7 to the Respondent’s Written Outline of Submissions).

Toll’s Doubt

[16] Toll had come to doubt Ms Diehm’s advice to the Company, particularly as to her being depressed, anxious and unable to leave her home during her WorkCover paid absence for the week concluding on Friday 10 February. Toll had accordingly arranged to have an agent observe Ms Diehm on 10 February 2012. It followed that when Ms Diehm went shopping and to visit her sister, that the agent recorded Ms Diehm’s movements, including in the supermarket, on a video camera. The short video tape of Ms Diehm’s supermarket visit was played at the commencement of the arbitration.

[17] The written report of the agent contains a detailed log of the agent’s observations (Attachment 7 to the Respondent’s Outline of Submissions received 27 May 2012).

[18] Upon Ms Diehm’s return to duty on Monday 13 February, Toll’s Human Resources Manager Ms Karen Luu interviewed Ms Diehm with NUW delegate Allen Cartwright on Thursday 16 February and asked questions as to Ms Diehm’s activities and movements on Friday 10 February 2012. Ms Diehm was told of Toll’s concerns as to ‘inconsistencies’ in her account and was then suspended on pay while Toll considered its position. Two further meetings occurred on 17 February again with delegate Cartwright, and 21 February at which meeting Mr Cartwright and Ms Hilt of the NUW were present.

Toll’s Account of the Deception

[19] It was Ms Luu’s evidence that on 16 February when Ms Diem was initially asked about the events of 10 February “her story or her view of accounts ended at when Ms Weise and Mr McCarthy picked up the form” (TPN1058).

[20] In Ms Luu’s account when she prompted Ms Diehm that Toll had different information Ms Diehm quickly proffered the advice that she had visited her sister’s home ‘late’ in the afternoon (Exhibit T3, paragraph 24). In Ms Diehm’s account she advised of her afternoon trip to her sister from the outset (TPN1063). Ms Luu at this stage had received a report from the agent but not the visual material.

[21] It was Ms Luu’s evidence that because Ms Diehm “didn’t withhold that information for very long” (TPN 1077) and because the visit to Ms Diehm’s sister fell outside Ms Diehm’s usual working hours had she been at work on 10 February, the visit to Ms Diehm’s sister did not form part of the reason for dismissal (see TPNs 1072-73).

[22] As will be set out in some detail below, when, at a meeting on 17 February Ms Diehm was further questioned over her movements on 10 February, she forcefully reaffirmed that she had remained at her home until the trip to her sister’s house. Toll advised Ms Diehm that it had reason to disbelieve her account of the day. Ultimately Ms Diehm was told that Toll had visual information suggesting that the Applicant “went out shopping” (Exhibit D3, Ms Luu’s statement, paragraphs 36 and 46) or “was out at the shops on the morning of the 10th” (TPN1031), and that she had been under observation.

The Crux

[23] When Ms Diehm was told of the recorded supermarket shopping, the Toll evidence was that Ms Diehm responded “very quickly” and “in a very defensive manner” (TPN1284-85) that, whoever saw her would be able to confirm to Toll that she “only went out to the stores to buy some milk” (Ms Luu’s statement, Exhibit T3, paragraph 37). This response suggested to Toll that Ms Diehm had in fact known of the shopping trip - in the sense that she had not forgotten the fact of her trip as she then maintained.

[24] Toll formed the view that Ms Diehm had deliberately misled the Toll officers and that as this amounted to dishonesty, a lack of ‘integrity’ in the Toll parlance, her employment should be summarily terminated for serious misconduct.

The Video Recording

[25] At the outset of proceedings the video taken by Toll’s agent was shown in the hearing room to me, Mr Mujkic, Ms Segan, Ms Diehm and Ms Fitz Gibbon and the Toll officials. The NUW officials had not previously seen the video recording.

The Remedy

[26] As proceedings commenced, Mr Mujkic advised of a change in the Applicant’s position; that reinstatement was now not sought. With the agreement of the parties there occurred a private conference with Ms Diehm, her two advocates, Ms Fitz Gibbon and Toll’s Human Resources Director Ms A Ryan. Despite the parties’ efforts it was necessary to proceed.

The Evidence

[27] In addition to the video recording, evidence was given by:

• Rosa Diehm



• Katherine Louise Hilt, Organiser, National Union of Workers



• Jason Christopher Alsop, Senior Business Manager, Toll Customised Solutions



• Michelle Weise, Occupational Health and Safety and Return to Work Manager, Toll Customised Solutions



• •Karen Phuong Luu, Employee Relations Manager, Toll Customised Solutions



• Matthew Smith, Employee Relations Manager, Toll Limited.

[28] It is not my intention to summarise all the evidence as it was given, although a deal will be discussed in greater detail. It will I hope be clear from the reasons following which account is accepted on various key points. In relating the earlier aspects of Ms Diehm’s employment as it is punctuated by events which brought Ms Diehm to the notice of Toll management, I will comment as is necessary upon the competing descriptions given by Mr Mujkic and Ms Fitz Gibbon in the thoughtful presentation of their cases.

Ms Diehm’s Evidence

[29] Ms Diehm described her principal role as a Toll Worker as being required to lift boxes of up to 30 kg onto a pallet which was 1.8 metres high. In Ms Diehm’s account:

• when in the sorting department (the Applicant’s main role) she had been constantly told by Toll’s team leaders to work ‘hard and fast’ (Exhibit D3, Ms Diehm’s Statement, paragraph 4);



• when the package/parcel ‘line’ became crowded and a system of lights accordingly became illuminated, the employees were told not to let the lights ‘go off’ - this meant that it was “very difficult to maintain correct lifting technique” (Ms Diehm’s Statement, Exhibit D3, paragraph 4);



• when in early August 2011 Ms Diehm began to experience bad back pain and advised the warehouse manager, Darren Watkins, she was redeployed to another area which Ms Diehm described as fast-paced and requiring a lot of lifting. Ms Diehm reported this to Ms Weise and restricted duties and painkillers were prescribed by the doctor for a week;



• when she returned to the ‘Company’ doctor, complaining that she was not feeling any better, Ms Diehm reports the doctor as saying that Ms Diehm was too old to work at the warehouse and that she should look for another job;



• upset by these remarks Ms Diehm told Ms Weise what the doctor had said and attended her own doctor, Dr Frost;



• when the claim made for workers’ compensation was accepted in October 2011 Ms Diehm returned to ‘work full duties’ in ‘receiving’, an area which involved lighter work and much administrative work;



• upon her return to full duties, “my compensation claim was terminated, so I couldn’t continue with my physiotherapy treatment. I’m not sure why my claim was terminated, but at the time I felt that Michelle had pressured my doctor into something, because she continually contacted him without my knowledge” (Exhibit D3, paragraph 9);



• about mid December 2011, Ms Luu told Ms Diehm that, despite Ms Diehm’s view that she didn’t “feel up to the work, she would have to go back and work in the sorter. Ms Diehm’s evidence was that Ms Luu had said that if Ms Diehm couldn’t do all the jobs in the warehouse she “shouldn’t be working there” (Exhibit D3, paragraph 10);



• in early January 2012 Ms Diehm had been told by an area manager, Mr Brett White, that, as she reported “some pain and stiffness in my back” she should work at a reduced pace. Ms Diehm’s evidence was that she felt she couldn’t work at a reduced pace owing to the pressure put on the workers in the sorting area, including a team leader “who would often walk around saying things like, ‘hurry up or I’ll break your fingers’” (Ms Diehm’s Statement, Exhibit D3, paragraph 11);



• in late January after returning from some five days off duty, a Team Leader suggested lifting only light boxes and area manager Mr White referred Ms Diehm to Ms Weise. Ms Weise said that she would arrange an appointment with the ‘company doctor’ but Ms Diehm so mistrusted that doctor that she arranged an appointment with Dr Frost;



• Dr Frost gave Ms Diehm a certificate of restricted capacity but when Ms Diehm attended work the pain she suffered was said to be so severe that she sat in the tea room until the end of her shift;



• on February 2 upon awakening very stiff and sore Ms Diehm attended Dr Frost who issued a medical certificate indicating Ms Diehm as unfit for duty until 12 February and then fit for modified duties;



• when Toll advised Ms Diehm that the February 2 certificate was unclear, a further certificate was issued by Dr Frost providing greater detail.

[30] There then followed a series of events which culminated in the dismissal:

• On 7 February Ms Weise rang Ms Diehm to advise that Ms Diehm had not signed one section of the WorkCover claim form. Ms Weise said the form would be couriered to Ms Diehm for her signature and return.



• Late in the afternoon of Tuesday, 7 February Ms Diehm says she found a notification of an attempted delivery in her letterbox. Ms Diehm arranged for a courier to deliver the form the next day.



• After receiving the form, on Wednesday, 8 February, Ms Diehm went to the post office and mailed the courier envelope “express post” (TPN428) to Toll. Ms Diehm’s account was very detailed, that the tall, dark and young man accepted the courier envelope for mailing to Toll (TPN432).



• On Thursday 9 February Ms Weise rang Ms Diehm to advise that the courier envelope had not been received. Ms Diehm says she told Ms Weise that it had been mailed and in Ms Diehm’s account, Ms Weise said that Ms Diehm “should have known” the procedure for a courier to pick up the courier company’s envelope (TPN156).



• Ms Diehm’s account was that the courier envelope was eventually returned to her, marked ‘return to sender’. Early on Friday 10 February Ms Diehm rang Toll to advise that she would drop the form off at Toll that day. Several hours later it seems that Ms Diehm’s condition was deteriorating, so that she felt “quite sore” and stiff and accordingly was unable to drop the form off that day.



• Ms Diehm’s evidence was that Michelle Weise kept insisting that Ms Diehm drop the form off even when told by Ms Diehm that she was feeling stiff and sore. Ms Diehm says she was upset by the conversation and “felt quite intimidated by Michelle” (Exhibit D3, paragraph 18).



• Later on Friday 10 in a subsequent telephone call, Ms Weise arranged with Ms Diehm that rather than Ms Diehm having to drive to the workplace Ms Weise would come to pick up the form. Ms Diehm’s reply to Ms Weise was “that that would be fine”, that Ms Weise could come at any time as Ms Diehm was “just sitting at home and resting” (Exhibit D3, Ms Diehm’s statement paragraph 18).

[31] On the following Thursday, February 16, Ms Diehm (with NUW delegate Mr Cartwright) was questioned by the HR Manger Ms Luu, with Mr McCarthy observing, as to, “where I was on Friday, February 10 I told her I was at home all day. She asked me if I went anywhere and I said that I went to my sister’s house in the afternoon, after Michelle picked up the form from my house”. As set out earlier, Ms Diehm was then suspended on full pay and told that Toll were to conduct a further investigation.

The Meetings of 17 and 21 February

[32] Ms Diehm attended a further meeting on 17 February with Ms Luu, Mr McCarthy and Mr Cartwright. Ms Diehm’s account was that Ms Luu said she was inquiring further into Ms Diehm’s movements on Friday 10 February because Ms Diehm had told Ms Weise that she was too stiff and sore to attend at work to provide the signed WorkCover form. Ms Diehm’s account was that she had told Ms Luu that she “was at home watching TV and that I didn’t go anywhere until the afternoon, when I went to my sister’s” (Exhibit D3, paragraph 21). More detail of these meetings will be considered in reviewing the competing evidence below.

The Termination

[33] The final meeting occurred on 21 February attended by Mr Cartwright, NUW Organiser Ms Hilt, Ms Luu, Ms Diehm and Mr Smith a Toll Employee Relations Manager. At that meeting:

Ms Diehm told Mr Smith that:

• it was not her intention to answer the same questions “over and over again”;



• she had answered Ms Luu honestly on February 17 and “had honestly forgotten that I went to buy groceries” (Exhibit D3, paragraph 25);



• she had been very sore that day and that “there was a big difference between a fifteen minute trip to the supermarket and driving for an hour when you have a sore back” (Exhibit D3, paragraph 25).

[34] Ms Diehm was shown the videotape of her shopping and shortly afterwards advised of the summary termination of her employment on the basis of her serious misconduct “...in making false and misleading statements both prior to and during the investigation that began on 16 February 2012...and we further consider that the employment relationship has completely broken down” (Ms Luu’s letter to Ms Diehm of 22 February 2012, Attachment RD4 to Exhibit D3).

The Case for Ms Diehm

[35] It was said that Ms Diehm was protected from unfair dismissal in that as a s.380 employee she had completed the s.382 minimum employment period, and had additionally, been covered by an enterprise agreement (s.382(b)(ii).

[36] In presenting a detailed and thoroughly referenced case for Ms Diehm, Mr Mujkic relied on the principles able to be derived from the High Court’s decision in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 and Bostik (Australia) Pty Ltd v Georgevski (1992) 36 FCR 20.

[37] Amongst the key elements of Mr Mujkic’s presentation relating to the 10 February issue were:

• that there was no valid reason for Ms Diehm’s termination because Ms Diehm did not engage in the conduct complained of by Toll, and if it be found that she did:



• that the conduct was “directly related to a matter that occurred in her own private time” and, entirely lacking the necessary connection with the workplace, “these circumstances cannot lead to a finding of a valid reason...” (Exhibit D1, Applicant’s Written Submissions, paragraph 13.1(ii)(a));



• that there was no opportunity for Ms Diehm to respond; and



• the termination was harsh because it was a disproportionate response to the conduct said to have been engaged in.

The Conduct Did Not Occur

[38] It was submitted that, as part of Fair Work Australia’s necessary finding of jurisdictional fact when particular conduct is relied upon by an employer, on this occasion it should be found that the conduct did not occur.

[39] It is perhaps as well to note what exactly is the conduct which Mr Mujkic’s submission urges Fair Work Australia to find did not occur or, is not made out. Mr Mujkic constructed Ms Diehm’s defence around the following characterisation of Ms Diehm’s conduct. “Ms Diehm is accused of making false and misleading statements to Toll in the course of an investigation. In particular, Ms Diehm is said to have deliberately failed to mention when questioned about her activities and whereabouts on a day off work, that she had visited a local supermarket” (Exhibit D1, paragraph 21).

[40] In its analysis of the case brought against Ms Diehm, the NUW argument was that the video evidence showed Ms Diehm going to a supermarket “...(in circumstances where she failed to mention doing this when first questioned); it does not and cannot establish that Ms Diehm had been dishonest or made any false or misleading statements” (Exhibit D1, paragraph 22). It followed that there was no valid reason.

[41] Ms Diehm’s advice to Toll, when questioned about her movements on 10 February, had been that she had visited a relative - her sister. It was put that this admission, before Ms Diehm knew of the video surveillance, establishes that Ms Diehm had no intention to conceal her activities from Toll. Further, when ‘confronted’ with the fact of her supermarket visit, Ms Diehm did not attempt to deny the visit. It was put as ‘important to note’, that Ms Diehm has no history of engaging or participating in dishonest practices at Toll. I have noted the submissions.

The Reasons as Sound, Defensible or Well Founded

[42] The Applicant’s case challenged Toll’s grounds for concluding that Ms Diehm had made false or misleading statements. It was submitted that Ms Diehm’s failure to mention the supermarket visit was not extraordinary. It was stressed that there is no evidence that Ms Diehm’s failure to mention going to the supermarket was any more than an oversight.

[43] It was said for Ms Diehm that there was no evidence that could be relied upon to establish that the Applicant was less than honest or made false or misleading statements. It followed that a finding should be made that Ms Diehm did not knowingly mislead Toll or make false statements.

Private Affairs

[44] An emphatic part of the Applicant’s case was the proposition that the private behaviour of a person when that person is not at work can impact upon their employment only if the behaviour can be said to have breached an express or an implied term of their contract of employment. Emphasis was placed upon the decision of his Honour Ross VP, as he then was, in Rose v Telstra Corporation Ltd (Print Q9292) (Rose) 4 December 1998, wherein his Honour’s exegesis dealt with the relationship between an individual’s private life and the significance, if any, of that private life on the employment relationship.

[45] In tracing the history of work and its legal recognition, from serfdom, through the control of servant by patriarchal master within a family-like environment, the lessening subordination of employees’ private life to the control or oversight of the employer was highlighted. The legal position was said to have evolved to the modern relationship of employer and employee, each with contractual duties and rights deriving no longer from wealth and status, but from the contract of employment. The then Vice President in Rose observed, unsurprisingly, that it is now held that for an employee to be sanctioned or have their employment terminated there must be a relevant connection to the employment.

[46] It was submitted by Mr Mujkic that the act engaged in, in this case the buying of groceries could not, in and of itself, lead to a lawful termination of her employment. “Ms Diehm was simply engaging in one of the daily tasks of modern life.” (Exhibit D1, paragraph 31). The submission put was that Toll, knowing that Ms Diehm had not engaged in any activity which was able to have her employment terminated or Ms Diehm the subject of disciplinary action, nevertheless sought to question her private affairs. Toll then, upon establishing an inconsistency between Ms Diehm’s private life and her affairs as described by Ms Diehm to Toll’s inquisitors, moved to dismiss her.

[47] Fair Work Australia was urged to repudiate the intrusion, “the infiltration without cause” into the employee’s private life, represented by Toll’s conduct in the present circumstances. The argument was put in these terms:

“To find that there was a valid reason for termination in this case would be to allow and not discourage an obtrusive invasion into the private affairs of an employee for the purpose of disciplinary action and termination of employment in circumstances where the actions of the employee during her private time had no connection whatsoever with her employment or the terms of her employment contract. Such subordination of the private affairs of an employee to the control of their employer has never before been allowed or upheld by this Tribunal, and nor should it be.” (Exhibit D1, paragraph 34).

[48] As to the alleged dishonesty of Ms Diehm it was contended that:

• there had been no dishonesty;



• not in all cases where dishonesty is found to have occurred in the employee/employer relationship will there be a basis for termination (Woodman v The Hoyts Corporation Pty Ltd (2001) 107 IR 172 (Hoyts);



• in the event dishonesty was found to have occurred, that all the surrounding circumstances must be considered before coming to a conclusion whether there existed a valid reason for termination;



• in considering “...the significance to be attached to the lie” as expounded in Hoyts, the consequences of Ms Diehm’s conduct on Toll were either not apparent or negligible. As the “statements, false or otherwise, made by Ms Diehm, relate to conduct in her own private time and not to conduct engaged in whilst in the employ of Toll” they were unsanctionable (Exhibit D1, paragraph 37);



• there was no evidence that the conduct, even had it been engaged in, was designed to benefit Ms Diehm or to ‘damage’ Toll.

The s.387(c) Ground

[49] The Applicant’s case also relied upon a failure by Toll to have adequately (or at all) explained the basis for its finding that Ms Diehm had made false or misleading statements.

The s.387(f) and (g) Ground

[50] Given Toll’s substantial size and the fact that two human resource managers were involved in the investigation and decision to terminate, it was suggested that there was a deficiency in the level of care apparent in this case.

The s.387(h) Ground

[51] The decision was said to be harsh because it was a disproportionate response to Ms Diehm’s alleged conduct. The disproportionality in this case arose for two reasons; first by virtue of the nature of the conduct alleged and, second, when regard was had for Ms Diehm’s prior disciplinary history. It was put that because the conduct complained of “did not damage the Respondent in any way, and there is no evidence it was a calculated attempt to gain a personal advantage”, the fact of any dishonesty found ought not preclude a finding of harshness (Exhibit D1, paragraph 48).

[52] It was put that “at worst, Ms Diehm was dishonest for no clear reason” and without consequence for anyone (Exhibit D1, paragraph 48). It followed that in examining all the circumstances of the dishonesty, as suggested in Hoyts, a finding would favour Ms Diehm, because (in an abundance of negatives) not in all circumstances will a termination for dishonesty be found, necessarily, not to be harsh (Exhibit D1, paragraph 47).

Remedy

[53] Ms Diehm did not seek reinstatement and, rather, an order for compensation was sought as provided for in s.392. It was submitted that an order of compensation would not affect the viability of Toll, that Ms Diehm had sought to mitigate and Ms Diehm had not earned any remuneration to the date of arbitration. Section 392(3), which provides for an amount of compensation otherwise awarded to be discounted if Fair Work Australia is satisfied that the person’s misconduct contributed to the employer’s decision to terminate, was said to be of no effect because the conduct was not engaged in or was trivial.

[54] Mr Mujkic urged that the approach set out in Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 (Sprigg), be applied. As Ms Diehm was, on the evidence, likely to rehabilitate, a finding should be made that the employment would have continued for a substantial period. This meant that the legislative cap (s.392(5)) would become relevant ‘ “even once contingencies and tax are deducted from this amount” (Exhibit D1, paragraph 55). This meant an order in the sum of 26 weeks should be made or $21,108 less tax.

The Applicant’s Review of the ‘Contributory Matters’

[55] It will be seen that detailed final submissions were made in Fair Work Australia by Mr Mujkic taking up the evidence of the Toll witnesses suggesting that there were other ‘contributory factors’ bearing on, or forming part of, the reason to terminate Ms Diehm. It was submitted by the NUW that there was some conflict in the evidence, that Ms Luu and Mr Smith had both said that the earlier matters involving Ms Diehm “were not a reason or part of the reason for the termination, but then they go on to say that they were part of the matters considered in the decision to terminate Ms Diehm’s employment” (Mr Mujkic, TPN1533).

The Applicant’s case did not consider the prior incidents as unimportant and dealt with the matters raised against Ms Diehm by Toll in some detail. The case for Ms Diehm in relation to the ‘prior incidents’ was that:

• they were all minor and mostly trivial;



• Ms Diehm was “never formally warned about any of these incidents or her behaviour in relation to these incidents” (TPN1533);



• perhaps most importantly, the incidents were not raised with Ms Diehm during the meetings held which led to the termination as factors “going to the decision to terminate her employment” (TPN1534).

[56] Because Ms Diehm was not given a chance to respond to each of the issues, it was put that Toll could not rely on these factors to render the decision a valid one. It was said for Ms Diehm that the ‘key reason’, when the question of the valid reason is considered, was the alleged false and misleading statements (TPN1540).

[57] Mr Mujkic’s submission dealt with seven prior incidents which had emerged either in Toll’s account or had been acknowledged by Ms Diehm. These were given as:

• an incident (Incident One) with a fellow employee as a result of the employee leaving a milk bottle out on the table during breaks for a lengthy part of the crib break - where the employee later complained to the Toll management that he had been harassed by Ms Diehm;



• a further incident (Incident Two) involving the same employee where, in a retributive act, Ms Diehm was said to have endeavoured to have taken steps with a Toll supervisor to have the employee transferred to a less desirable area of the plant;



• an incident (Incident Three) where Ms Diehm was said to have not followed established procedures as necessary when applying for annual leave;



• an occasion (Incident Four) when, in a conversation with Ms Luu, Ms Diehm commented twice “all managers are sh.. heads”;



• an occasion (Incident Five) when Ms Diehm was cautioned in writing by Toll following concern that Ms Diehm’s advice to a doctor in respect of her WorkCover claim was not accurate;



• a number of occasions (Incident Six) when Ms Diehm is said to have behaved badly toward Ms Weise; and



• an occasion (Incident Seven) when Ms Diehm is said to have made remarks to a customer representative, a non Toll employee, which it was said should not have been made.

[58] As to Incident One the Applicant’s case relied on the fact that Ms Diehm did cease the conduct complained of and for which she was not warned. It was said further that Ms Diehm told the Company manager, Mr Alsop, that the conduct “which she acknowledged” would cease (TPN1562). Mr Alsop agreed that there “was not a formal warning issued on that instance, no” (TPN1559).

[59] As to Incident Two, Mr Alsop’s evidence was that there had been insufficient evidence to sustain the complaint made against Ms Diehm, that she had acted to suggest to a Supervisor that the employee involved in the milk bottle incident ought be moved to a less desirable area. Mr Alsop’s evidence, relied upon by Mr Mujkic, was that Mr Alsop had ultimately made no finding against Ms Diehm and had given Ms Diehm the benefit of the doubt (TPN1564-65). It was said that, if a relevant consideration, it should carry little weight in the circumstances.

[60] As to Incident Three, the annual leave application when annual leave was, as a matter of policy, unavailable, it was put that there had been a discussion with Ms Diehm, the policy for leave unavailability explained to her and ultimately not withstanding her inadequate behaviour the leave was granted. It was put by Mr Mujkic that, properly understood, the annual leave matter (Incident Three) does not go to reflect badly on Ms Diehm (TPN1572).

[61] Mr Mujkic addressed Incident Four, the “all management are sh.. heads” declarations of Ms Diehm, by highlighting that Ms Luu was not offended and that no warning was issued (TPN1572). The question was posed rhetorically “...if no formal warning was issued, how relevant could it be when one considers whether or not Ms Diehm’s termination was fair or not?” (TPN1572).

[62] In anticipation of Toll’s reliance on Incident Five, Mr Mujkic emphasised on Ms Diehm’s evidence that her preferred doctor, Dr Frost, had simply made a mistake which was later corrected. It is as well to give some detail now about the 9 September letter.

[63] Ms Diehm was given a letter by Toll, following the employer’s review of the basis for Dr Frost certifying Ms Diehm as unfit for work. In Ms Luu’s letter to Ms Diehm of 9 September 2011 (Exhibit T6), headed “Discussion Confirmation” Ms Luu dealt with comments made by Dr Frost to Ms Weise as Occupational Health and Safety and Return to Work Coordinator (now it seems, Manager) for Toll and Mr S McCarthy, Toll’s Risk and Occupational Health and Safety Manager.

[64] Ms Luu had commented that Dr Frost had advised the Toll staff that Ms Diehm had been certified unfit for work on the basis of Ms Diehm having told Dr Frost that light duties were constituted by lifting boxes off a Toll decline. Ms Luu’s letter to Ms Diehm reads “As you understand, that information is incorrect and to suggest they were your duties throughout your RTW program is false and misleading”. Ms Luu’s correspondence notes Ms Diehm’s denial that she told Dr Frost “as such” and that Ms Diehm had confirmed “that the lifting of boxes is not part of your pre-injury duties and you have not performed this task during your RTW so far”.

[65] The “Discussion Confirmation” letter concludes with Ms Diehm having reinforced to her the need for accurate details to be provided to a treating doctor and that persons found to be providing false or misleading information relevant to their work “will be subject to serious disciplinary action which could result in the termination of their employment” (Exhibit T6).

[66] Mr Mujkic emphasised that the letter was not a warning and rather, it was simply stating the obvious, that to provide false and misleading information may result in disciplinary action (TPN 1594). Reliance was placed on Ms Luu’s evidence that Ms Diehm was given the benefit of the doubt and, again, that no warning was given.

[67] Incident Six, Ms Diehm’s behaviour toward Ms Weise on several occasions was dealt with in a similar fashion by Mr Mujkic submitting that no warning had resulted and, rather, that “Ms Diehm was instructed to cease the conduct” (TPN1612) and, “whatever the behaviour was, it wasn’t serious enough to warrant a formal warning of any kind. If it was truly aggressive and intimidating behaviour I would have thought that it would have resulted in disciplinary action” (TPN1620).

Generally as to the Incidents

[68] As to the Seventh Incident, Ms Diehm having spoken inappropriately with a customer representative (by complaining about a fellow Toll employee with a notion that that customer representative might do something about it), it was said that this was not a particularly serious matter and that, as Toll were not comfortable with Ms Diehm’s actions, they steered her in the right direction (TPN1634).

[69] It was acknowledged in the Applicant’s case that while of little relevance, the seven matters were considered generally by Toll, even though they were minor, in some instances totally trivial; not the cause of warnings and go to issues of behaviour not honesty. Also given significant weight in the Applicant’s case was that these matters were not put to Ms Diehm during the termination process and indeed, Mr Smith’s evidence was that the earlier issues were ‘historical’ in nature (TPN1676 - quoting paragraph 1489).

[70] Mr Mujkic emphasised that the conduct complained of by Toll and for which Ms Diehm was said to have engaged in misleading, deceptive or dishonest conduct was the Applicant’s response in relation to the supermarket trip.

[71] Other instances of behaviour surrounding the trip where Ms Diehm might have been queried, but was not, were given attention by Mr Mujkic. For example, there was no Toll allegation of dishonest behaviour in relation to Ms Weise’s account that Ms Diehm had told Ms Weise that she was unable to leave the house on the day in question. On Ms Diehm’s account she did at the outset disclose the visit to her sister’s home when queried, but in the Toll version of events Ms Diehm did not immediately disclose that visit.

[72] Mr Smith’s evidence was said to establish the confined scope of Toll’s concern, that the shopping trip was the key issue. While Mr Smith did advert to the comment made earlier on 10th February that Ms Diehm had said she was unable to leave the house, his evidence set out relevantly (in response to the following question from Ms Segan) the prime cause of Toll’s concern:

“You say that Ms Diehm’s failure to disclose the fact that she had gone to the shops when directly questioned was what concerned you. Is that correct?...It was the failure to disclose that was my concern, yes, rather than where she went - where she’d gone.” (TPN1498, as quoted at TPN1687).

Toll’s Conclusion

[73] The Applicant’s case dealt fully with what was said to have been the respondent’s reason. The submission was a bald one; that “there was simply no basis for the employer to find that Ms Diehm was in fact dishonest” (Mr Mujkic, TPN1696).

[74] It was put that there existed two possibilities; the first that Ms Diehm forgot she visited the supermarket for the few items that day and as a consequence didn’t disclose that fact; the second possibility was that Ms Diehm intentionally failed to disclose that fact.

[75] After a detailed treatment of various responses, the case for Ms Diehm focussed on Mr Smith’s evidence in explanation of why it was Toll became convinced of Ms Diehm’s lack of honesty. Mr Smith was asked, “And how can you be sure she intentionally misled the business...I formed that opinion through the weight of her previous behaviour. Ms Diehm was a person who had exhibited or had questionable integrity on a number of occasions through her course of employment, and balance of probability as to whether she was continuing to tell the truth did form part of that decision.” (TPN1504).

[76] The Applicant’s case relied on the earlier matters set out above not relating (bar one) to honesty and, rather, being minor behavioural issues. With the exception of what Dr Frost was told, there had been no findings made relating to honesty. It was said to follow then, that there was no basis for determining that Ms Diehm did not simply forget (TPN1723).

[77] As to the conduct itself, the level of candour, Ms Diehm is said to have immediately disclosed the fact of her visit to her sister’s home. It was put that it made no sense to voluntarily disclose that trip and deliberately not advise calling at the supermarket. It was put that if it is accepted that there was level of openness and not a lot of evidence about dishonesty, that circumstance makes a finding of honesty (as in ‘truly forgot’) more likely and more reasonable than a finding of dishonesty.

[78] Mr Mujkic acknowledged a difference in the evidence as to when Ms Diehm spoke to Ms Weise on the morning of 10 February around 9.00 versus 10.00 to 10.30. For the Applicant’s case it mattered little. Similarly, it was said, as to the Australia Post lodgement of the Toll Courier envelope, that from Toll’s perspective Ms Diehm’s dishonesty was at play, as it simply ‘couldn’t be’ that an Australia Post mail officer would receive the Toll courier envelope or ‘priority satchel’ for mailing in the post. It was submitted as to the returned envelope, that it was not asked for by the employer and “there is no evidence that she’s intentionally sought to make a problem here...” (TPN1713).

[79] With no evidence as to dishonesty and with the candid disclosure of the visit to her sister, it was said that a finding of honesty is more open, a better finding and a more reasonable finding than a finding of dishonesty (TPN1745).

[80] The other basis for Ms Diehm’s case was that the events were extraneous to the employment, occurring it was said ‘out of hours’ so that it was impermissible for the employer to delve into them.

[81] Rose was given as the key authority supporting the view that, “an employee’s behaviour when not at work can only impact on their employment if it breaches an express or implied term of their contact of employment” (Q9292).

[82] It was the forceful submission of the NUW that there should not occur covert surveillance of an employee “in their private life” when the conduct is wholly innocuous. Toll’s actions were said to constitute a breach of privacy.

Actions v Medical Capacity

[83] In particularly relying on the decision of his Honour Lacy SDP in JVC v Bluescope Steel Pty Ltd (PR981558) it was said that a deficit of direct evidence about alleged misrepresentation meant that a finding would not favour the party failing to discharge the onus (as to satisfy the Tribunal) that such conduct occurred. Because Ms Diehm had not acted inconsistently with her advised incapacity, it was an unacceptable intrusion into her private life to have had the camera ‘put on her’. In this respect the Applicant’s case relied on the observation of Dr Mackintosh (Exhibit D5) that it was the Doctor’s view, having seen the video tape of Ms Diehm performing her shopping activity, that Ms Diehm, in shopping, carrying her bags to the car and loading the bags into the car remained “consistent with my history and observation of her clinical state” (Exhibit D5).

[84] It can thus be said that if there is dishonesty, it was not that Ms Diehm was engaging in conduct inconsistent with her condition as advised to the doctor or the employer. The Applicant relied on authority, particularly the Full Bench in Hoyts, to establish that even if there was an act of dishonesty, all the circumstances must be considered and that the impact on the employer was negligible. More specifically, Hoyts was said to directly stand for the proposition that dishonesty, (if it occurred) does not, in every circumstance, lead to a valid reason for termination.

[85] Reliance was had for the view of the Hoyts Full Bench that “...we do not underestimate the importance of maintaining high standards of honesty amongst staff working in this industry, we think the Applicant’s conduct warranted a warning and no more. Dismissal for dishonesty had the potential to entirely alter his employment prospects for the rest of his life.” (Hoyts, paragraph 34).

[86] In summary, the Applicant’s alternative position, in the event that Fair Work Australia was to find dishonesty; that Ms Diehm had deliberately misled her employer about having left her home to undertake the trip to the supermarket, was that:

• the termination was disproportionate to the act or event;



• the action had no relevance to Ms Diehm’s employment;



• such action did not “impact adversely on the employer in any way” (TPN1923); and



• she did not engage in an act inconsistent with the contemporary medical advice, said to be relevant to the gravity of any dishonesty.

[87] It was submitted for Ms Diehm that s.387(b), (d) and (e) are not relevant. As to s.387(c) it was put that although technically speaking Ms Diehm was given an opportunity to respond, it was said not to have been a practical opportunity to respond (TPN1957). This submission was heard on a claim that Ms Diehm did not have explained to her the basis of Toll’s findings.

Remedy

[88] It was said by both parties that the remedial approach set out in Sprigg was to be followed in this case. Relevant to the approach in Sprigg as to estimation of future service it was said that there was no evidence to suggest that Ms Diehm would not have continued at Toll for a significant period well beyond the six months set by the legislative remuneration cap had not this incident occurred.

The Case for Toll

[89] Toll’s case was a polar opposite to that put for Ms Diehm, It was not a case which if accepted, reflected well on Ms Diehm. Fair Work Australia was directed to a company value system termed the STRIVE behaviour guidelines. Ms Fitz Gibbon agreed that Toll regarded the STRIVE guidelines as comprising a broad requirement to be accepted by all its staff. Ms Fitz Gibbon agreed that Toll saw the STRIVE guidelines as comprising a broad requirement made upon its staff and imposed by Toll, particularly in relation to ‘integrity’. It is perhaps helpful to set out Ms Fitz Gibbon’s opening words:

“MS FITZGIBBON: Thank you, sir. It became apparent to the respondent over the course of the applicant's employment that she had a habit of attempting to maliciously manipulate circumstances to her benefit by either making misleading statements or intimidating and harassing her colleagues to get her own way. The behaviour is highly inappropriate and simply not tolerated in the respondent's workplace. In the respondent's submission the serious misconduct which led to the termination of the employment needs to be viewed in the context of the entirety of the applicant's behaviour during the course of her employment with the respondent.” (TPN2004)

[90] It seems that the ‘STRIVE values’ call up a requirement in employees as to integrity which attempts to have employees meet a value level of “exceeds expectations”, namely, “I communicate in a way that generates enthusiasm, commitment and honesty in all colleagues.” (TPN2018). Ms Fitz Gibbon agrees that this means employees had an obligation to be honest (TPN2022).

Ms Fitz Gibbon’s Chronology

[91] Particular emphasis was placed upon the number of ‘issues’ that had arisen over the 32 week course of Ms Diehm’s employment. Although some detail has already been given in outlining Mr Mujkic’s Seven Incidents, Ms Fitz Gibbon’s equivalent approach was to set out the narrative of this eventful employment. I will endeavour to align the Seven Incident numbers with Ms Fitz Gibbon’s basic chronology of events:

20 June 2011 Ms Diehm’s permanent employment commences.

11 August 2011 Incident One, where a male employee lodged a complaint against Ms Diehm alleging harassment and aggressive behaviour.

11 August 2011 Ms Diehm reports a workplace injury.

30 August 2011 Ms Weise and Mr McCarthy meet with Dr Frost to discuss Return to Work (RTW) matters, conclude that Dr Frost had gained an incorrect understanding of the duties available for RTW.

7 September 2011 Ms Luu meets Ms Diehm to discuss “apparent misleading information given to Dr Frost which led to Ms Diehm being provided an unfit certificate” (TPN2025).

9 September 2011 Ms Luu writes to Ms Diehm advising that the provision of misleading information could lead to disciplinary action or termination (Incident Five).

14, 20 and 21 December 2011 Ms Diehm meets with Ms Luu to discuss Ms Diehm’s application for leave during a peak work period (Incident Three).

20 December 2012 Ms Diehm twice says to Ms Luu during one of the communications about the annual leave application, “...I think you’re all a bunch of sh..heads” and a similar sentiment (TPN 928 and see Ms Luu’s file note, Exhibit T5). Ms Luu counsels Ms Diehm over this remark (Incident Four).

30 January 2012 Ms Diehm advises Ms Weise of back stiffness and yet fails to attend the appointment made subsequently by Ms Weise, or advise the clinic of her non-attendance.

1 February 2012 Ms Diehm provides a WorkCover form requiring a further signature.

3 February 2012 Ms Weise unsuccessfully attempts to contact Ms Diehm by telephone, Ms Weise dispatches the WorkCover form to Ms Diehm by Toll Priority overnight delivery.

6 February 2012 Ms Weise advises Ms Diehm (by telephone) of claim form dispatched on 3 February having not been returned.

8 February 2012 Ms Weise telephones Ms Diehm to confirm receipt of the claim form. Ms Diehm advises the claim form had been received/scanned at the Post Office in Ms Diehm’s attempt to return it to Toll.

9 February 2012 Ms Diehm advises envelope returned to sender by Post Office and that she is too stiff and sore to drop it off at workplace. Surveillance organised for 10 February.

10 February 2012 Ms Diehm telephones Toll and advises she will drop off the form. Later in the morning, Ms Diehm telephones advising, in Ms Fitz Gibbon’s words, “she’s in pain and is becoming depressed because she cannot leave the home” (TPN 2037). At 1.30 pm, by agreement, Ms Weise and Mr McCarthy pick up the form.

13 February 2012 Ms Diehm returns to work.

16 February 2012 Ms Luu taxes Ms Diehm as to her whereabouts.

[92] Toll submitted that the reasons for the decision to terminate were described in Mr Smith’s evidence at TPN1453. I agree with Ms Fitz Gibbon that it is useful to set out this passage in full:

“In particular it appeared evident to me that due to recent events which brought the applicant's integrity into question, together with the applicant's history of inappropriate and questionable behaviour on site, that the relationship was no longer tenable. It was apparent to me during the meeting that the applicant had a lack of respect of the respondent's management. Given that the applicant was employed for a period of only eight months with the respondent, the number of issues of concern that had also previously arisen was significant, including the allegation of inappropriate and aggressive behaviour made by a team member...


serious concerns about whether the applicant had been truthful in September 2011 when explaining the nature of light duties available with the letter dated 9 September 2011 being sent to the applicant warning her that providing false or misleading information to the respondent could result in termination of employment; and failure to follow proper process in December 2011 in relation to an annual leave application in a peak period; and receiving a formal warning on 21 December 2011 for making inappropriate comments to Karen Luu when discussing her leave application.

The basis of the decision appeared to me in my discussions with Ms Luu and during the meeting that there had been an irretrievable breakdown between Toll as the employer and Ms Diehm. It appeared evident to me during the conduct of the investigation, during the process of the investigation, and her behaviour during the eight months of employment, there were serious, serious questions as to her integrity and I simply do not see that it was tenable to move forward in an employment relationship.” (TPNs 2052, 2054 and 2056)

The Surveillance

[93] Toll sought to emphasise that the 9 February decision to arrange for surveillance of Ms Diehm on 10 February did not relate to any enquiry as to her medical state or her reported injury. The reason was revealed in the following exchange at TPN2076-77;

“THE COMMISSIONER: No. It struck me that you were putting - perhaps we'll leave it and you come back to it if you want to - but that there was a confined reason for the camera being put on her, it didn't include an injury-related element. It's likely then to invite the question: was it to record what she did so that she could be queried about it later to see if she was truthful?

MS FITZGIBBON: Yes, that's the way to put it.” (TPN2076–77)

[94] But, Ms Fitz Gibbon did not require leading, making it abundantly clear that the purpose of the surveillance was not reflective of concern for the workers compensation claim and rather, “...identifying whether the statements she was making were true” (TPN2087). Ms Weise had become suspicious when unable to contact Ms Diehm on 3 February, despite a number of telephone calls and then again on 6 February and had spoken to Ms Luu.

[95] It was outlined by Ms Fitz Gibbon that Ms Weise became concerned when advised by Ms Diehm on 6 February that the TOLL package/envelope sent by courier on 3 February had not been received. Ms Weise was further concerned when the package was said to have been accepted by the Post Office (rather than be transmitted by courier as set out on the envelope), then allegedly returned by the Post Office to Ms Diehm - which in turn required the pick up from Ms Diehm’s home on the day leading to the termination.

[96] It was said to have been these events which “led Ms Weise to be quite suspicious about what was going on and what Ms Diehm might have been up to in terms of delaying the return of her workers comp form” (TPN2097). It is important to note that there had been “a quite difficult relationship” between Ms Diehm and Ms Weise over the previous workers’ compensation claim form. Ms Luu gave evidence about her cautioning Ms Diehm in September 2011 as to the unprofessional and “very aggressive” communication from Ms Diehm to Ms Weise in an open office area within earshot of other staff. Ms Luu said she had told Ms Diehm that, in future, such discussions should be held in a meeting room and that she further cautioned Ms Diehm on the need to speak respectfully and to uphold the STRIVE values (TPN904-908). It was this encounter with Ms Diehm which had led to Ms Weise being ‘very keen’ to complete the administration arrangements surrounding the claim (TPN2097).

[97] Clearly Toll was highly sceptical, or disbelieving, of the ‘tall, young and dark’ Australia Post figure allegedly accepting the Toll courier envelope for scanning, because Ms Weise had had trouble in finding Ms Diehm home when she telephoned, “and the history of poor or concerning behaviour when faced with a situation that was not to her liking” (TPN2103).

[98] When questioned as to the Applicant’s position, that there is simply no evidence upon which one might reach a concluded position on the earlier employment issues, Ms Fitz Gibbon acknowledged, “it’s difficult to draw a definite inference from evidence of that kind, but certainly it was a reason for Toll becoming suspicious in its own circumstance as an employer looking at the whole factual matrix of, “Is this employee being truthful? Is she playing a game? What’s going on here?...And in the context of an employee who’s had quite a number of issues arising over a very short period of employment, it’s just another issue as far as the employee is concerned, wearing the employer hat, thinking, ‘Do I or don’t I terminate the employment?” (TPN2112).

Ms Diehm in the Meetings

[99] Toll relies on Ms Diehm’s conduct in the meetings held with her leading to the termination. Fair Work Australia was urged to accept Ms Luu’s account of what Ms Diehm said at those meetings. Ms Luu’s evidence was that:

• she had asked Ms Diehm to explain why she could not attend the site on 10 February (to drop off the form as had been planned);



• Ms Diehm’s response was that she was too sore and “added that she felt depressed at the time because she could not go anywhere” (Ms Luu’s Statement, paragraph 23, Exhibit T3);



• When questioned whether this had kept her home all day Ms Diehm initially said this was so and, later, after prompting that Toll had different information, revised her statement to acknowledge visiting her sister late in the afternoon;



• When, at about 10.30 am the next day she (Ms Luu) contacted Ms Diehm, Ms Diehm complained that Ms Luu had not contacted her the previous day, 16 February. When Ms Luu claimed that she had told Ms Diehm on 16 February that she would call within the next 24 hours, Ms Diehm insisted that Ms Luu had so committed herself. Ms Luu said she had disagreed with Ms Diehm and ‘brought’ the conversation around to Toll’s request to attend a meeting at 1.00 pm that day. Ms Diehm indicated she could not attend at 1.00 pm and rather, because she ‘had to take a shower’, the meeting should be at 1.30 pm that day. Ultimately, Ms Luu agreed on the 1.30 pm time;



• At the 1.30 pm meeting Ms Diehm confirmed her advice of the previous day, that is, her revised account of having been home all day - until later in the afternoon;



• When Ms Luu asked Ms Diehm how sure she was about being home all day, Ms Diehm said, “Karen, from the moment I woke up in my bed and up to when I left to see my sister, I was home” (Exhibit T3, paragraph 35). Ms Luu said Ms Diehm said she was 110% sure and mentioned watching American documentaries (Exhibit T3, paragraph 35);



• She told Ms Diehm that Toll had information suggesting that Ms Diehm had left the house shopping during the morning of 10 February (Exhibit T3, paragraph 36);



• Ms Diehm had then ‘promptly’ explained that whoever had seen Ms Diehm should be able to advise that she had only gone to purchase milk as she had run out (Exhibit T3, paragraph 37).

[100] Ms Diehm explained that she had forgotten that she had gone to buy milk and in Ms Luu’s account told the meeting that she was “allowed to go out and buy milk (Exhibit T3, paragraph 42). It was Ms Luu’s evidence that she told Ms Diehm that Toll regarded the inconsistent answers as of serious concern, particularly in light of her having “been given the benefit of the doubt on a number of previous occasions” (Exhibit T3, paragraph 43). When Ms Diehm disagreed Ms Luu advised her that she felt it unusual that Ms Diehm “would forget this detail up until now. Especially when her answers had been so adamant” (Exhibit T3, paragraph 45).

[101] Ms Luu advised Ms Diehm that while not yet in possession of the ‘visual’ information Ms Diehm remained stood down and would be able to see the information at an early opportunity.

[102] When asked whether Ms Diehm had any questions or information to provide Ms Luu, Ms Diehm advised she wished to submit a pre-prepared written complaint (Exhibit D4) against Michelle Weise for harassment. Ms Diehm was advised that the complaint would be investigated.

The 21 February Meeting

[103] At the third meeting, on 21st February, arranged to show Ms Diehm the visual information, Ms Luu was present with Ms Diehm, NUW organiser Ms Katherine Hilt, Mr Cartwright and a Toll Industrial Relations Manager, Mr Matthew Smith. Mr Smith outlined Toll’s position; that there existed inconsistencies in Ms Diehm’s account “and doubts as to her motivations for making the allegations”. At an early juncture, Ms Diehm alleged that, at the previous meeting, of 17th February, Mr McCarthy, Toll’s Occupational Health and Safety Manager, had agreed that Ms Diehm “had indeed been harassed by Michelle Weise” (Exhibit T3, paragraph 56).

[104] The meeting adjourned for some time to permit Ms Smith and Ms Luu to discuss Ms Diehm’s assertion that Mr McCarthy had on 17 February confirmed Ms Weise as harasser of Ms Diehm. Ms Luu’s evidence was that:

“Simon McCarthy denied emphatically that he had stated that Rosa had been harassed by Michelle. Moreover, his statement was that he had said words to the effect of “she wasn’t harassing you; she was trying to help you” (Exhibit T3, paragraph 59).

[105] It was Ms Luu’s further evidence that when the swiftly re-convened meeting was advised of Mr McCarthy’s recollection Ms Diehm fell silent and Mr Cartwright, the NUW shop steward, agreed that he recalled the comment being made by Mr McCarthy as then reported that is, that Ms Weise was trying to help Ms Diehm, not as Ms Diehm recollected (Exhibit T3, paragraph 60).

[106] It is said for Toll that it was made clear that the investigation did not relate to Ms Diehm’s WorkCover claim and, rather, was about “statements she has made to the business and throughout the investigation and not her injury” (Exhibit T3, paragraph 65).

[107] In Ms Luu’s account, Mr Smith told Ms Diehm that the earlier occasions when Toll had questioned her integrity were now relevant, as “the weight of probability becomes less and less in her favour as similar issues arise” (Ms Luu’s statement, Exhibit T3, paragraph 66).

[108] It was Mr Smith’s evidence that the meeting was a difficult one because Ms Hill constantly interrupted Mr Smith as he spoke and Ms Diehm repeatedly stated “I do not agree” rather than answer (Ms Smith’s statement, Exhibit T7, paragraph 8).

[109] Mr Smith said Ms Diehm had said several times, “I don’t know I have to answer these questions, I have already answered these questions” (TPN1447), and had behaved in a way that was disrespectful, if not aggressive, so that in Mr Smith’s evidence Ms Diehm was ‘entirely uncooperative’ (TPN1448). It was put also by Mr Smith that Ms Diehm was unapologetic for what he described as “…the oversights. I thought a reasonable person in that position might say ‘Look gee, I forgot. I’m sorry about that.’” Instead it was Mr Smith’s account that Ms Diehm responded vehemently and aggressively (TPN1451).

[110] When there occurred a break in the final meeting, Ms Diehm, Ms Hilt and Mr Cartwright were advised that Toll would consider its position but, upon the resumption Ms Diehm would be given the opportunity to address why Toll should not terminate her employment. Upon resumption Ms Diehm said that she had been truthful in her answers to Toll.

[111] It is clear from Mr Smith’s evidence that the determination was made by the company officers, including by reference to an absent Toll authority figure (Ms A Ryan), to dismiss Ms Diehm, subject only to her providing “exceptional reasons” (TPN1453).

The Termination

[112] Mr Smith’s evidence was the act of termination was described to Ms Diehm in the following words; “I gave brief reasons for the termination. I again talked about the benefit of doubt being provided to Ms Diehm, that “we could no longer afford to provide that to her and that she had made false and misleading statements to the business - essentially formed the crux of the matter.” (TPN 1454).

Ms Fitz Gibbon’s Submissions

[113] Mr Smith acknowledged that Ms Diehm might have forgotten that she had gone to the supermarket, but did not consider that to be a credible explanation (TPN1501-02).

[114] Ms Fitz Gibbon submitted that Ms Diehm “deliberately made statements that were not true and were deliberately designed only to mislead the business” (TPN2180). It was also acknowledged by Toll that there were issues in Ms Diehm’s employment history which “were not really got to the bottom of” (TPN2214) “...where there were - and certainly there couldn’t be any findings made, for example in relation to Dr Frost coming to a particular view...” and, “When you keep on getting a cumulative number of question marks over numerous issues over a short time the employer I think does have a tendency to think, “Well, we’ve not got here an employee with 30 years of fabulous experience who’s got an unblemished record” (TPN2214-15).

[115] It is unnecessary to do more than record that Ms Fitz Gibbon spent a great deal of time detailing the circumstances surrounding the prior incidents, together with several other events said to reflect poorly upon Ms Diehm. It was postulated by Toll that Ms Diehm developed an antipathy toward Ms Weise for a broad range of reasons, not the least that it was on Ms Weise’s initiative that Dr Frost reviewed his medical opinion, with the result that Ms Diehm had to return to work from her first claim and that there had been a delay in August 2011 in processing Ms Diehm’s workers compensation claim.

Ms Diehm’s Behaviours

[116] The evidence reflecting Ms Diehm’s view that Ms Weise had wrongly influenced Dr Frost was said to have resulted in Ms Diehm engaging in an aggressive and obstructive way with Ms Weise, including in front of colleagues, and such that Ms Luu spoke to Ms Diehm about acting in an unprofessional way with a colleague (TPN904 and 2262).

[117] Ms Fitz Gibbon’s detailed submissions raised a series of undesirable character traits and personal qualities as having been possessed by Ms Diehm. These include:

• making false allegations about people (TPN2271);



• having a tendency to respond aggressively and blame others (TPN2272);



• behaving argumentatively, angrily, uncooperatively and obstructively (TPN2273);



• giving false and misleading information (TPN2276);



• displaying disrespect and disregard for management (TPN2279);



• lacking ‘integrity’; and



• lacking truthfulness and an ability to follow process.

[118] It was these personal values, said to have been directed at Toll and its officers at various stages of events over Ms Diehm’s short employment history, which ran counter to Toll’s expectations. Toll’s value system, enshrined for its staff in the STRIVE Behavioural Guidelines (Attached to Exhibit T7, Ms Smith’s statement) was said to be sorely offended by an employee with the personal standards and conduct shown by Ms Diehm.

[119] Ms Fitz Gibbon relied on Re Clarke v The Metropolitan Meat Industry Board [1967] AR (NSW) 16 and the decision in John Lysaght (Australia) Limited and Federated Ironworkers Association of Australia (John Lysaght) (unreported) matter 259 of 1972, 14 September 1972, as providing authority for the view that an employer, considering the termination of an employee’s employment, can have regard for the previous conduct of an employee. In the John Lysaght case, that where a termination is ‘in its balance’, previous incidents “will always be relevant factors to be weighed in the balance by an employer when he comes to consider whether or not a further breach or act of misconduct should bring about a dismissal. This will be all the more so where, as here, the dismissal is upon notice”.

Mr Smith’s Argument as to Forgetting

[120] Particular emphasis was placed on the temporal proximity of Ms Diehm’s 10 February telephone call to Toll, made in her account between 10.30 and 11.00 am on 10 February, and the visit to the supermarket at about the same period. For Mr Smith it was too much to believe that Ms Diehm could forget that she had visited the supermarket and have spoken to Toll (at about the same time) to advise that she was feeling so unwell that she couldn’t make the drive of some sixty minutes to and from the plant.

[121] It followed in Toll’s submissions having given Ms Diehm the ‘benefit of the doubt’ on so many previous occasions, that it didn’t feel inclined to give it this time.

[122] As to remedy, Toll’s alternative submission was that Ms Diehm’s employment would not have continued beyond several weeks and suggested that inaccurate information had been lately given by Ms Diehm to a consultant orthopaedic surgeon. This in Toll’s view was a serious transgression of the written ‘discussion confirmation’ give by Ms Luu to Ms Diehm on 9 September 2011 which cautioned Ms Diehm that accurate details be given to a treating doctor at a all times (Exhibit T6). On this account alone Ms Diehm was said to have been unlikely to have employed for very long at all.

The Reply

[123] It was said for the Applicant there was uncertainty as to the reason/s for the termination. This submission relied upon Ms Luu’s cross-examination by Ms Segan:

“You've also given oral evidence today that another reason for the termination was that Rosa - Ms Diehm - was uncooperative in her dealings with various people. Is that correct?---That wasn't a reason for her termination. That was noted behaviour.

But this hasn't been noted in the letter, has it?---No, because that wasn't the reason for her termination.

So it wasn't a reason for the termination?---The behaviour was noted, and it was a factor in determining whether or not the employee and employer relationship was indeed, you know, tenable or untenable.

So if I understand you correctly it was a factor but it wasn't a reason for her termination?---It's a factor - yes, a factor - one of many factors that were considered, yes.

But not a reason. Is that correct?---No, it's not a reason.” (TPN1339-1443)

The s.387(b) and (c) Considerations

[124] It was said that if ‘these things’ did form part of the reason for termination there existed a serious problem for Toll because they were not put to Ms Diehm and she did not have an opportunity to respond. Mr Mukjic also queried whether all were relied upon, because as to at least two of the issues no conclusion was reached by Toll (TPN2418). Two examples given were the alleged misleading of Dr Frost and the alleged ‘singling out’ for future treatment of the fellow employee involved in the milk-bottle issue. Ms Diehm’s case posed the ; were they relied on? If they were, there were clearly procedural problems and natural justice issues. Mr Mujkic’s submission went on; “if they didn’t form part of the reason they’re there, they’re relevant considerations” and then, tellingly, “perhaps they’re relevant more so for harshness or compensation than for valid reason” (TPN2419).

[125] Also resisted was the ‘mud thrown’ at Ms Diehm - particularly the submission that “Ms Diehm had a habit of attempting to maliciously manufacture circumstances to her benefit by either making misleading statements or intimidating and harassing her colleagues to get her own way” (TPN2420). It was pressed that the case history did not show this; that finding had not been made, warnings given and that there was an insufficiency of evidence.

[126] In arguing that Ms Diehm was not, in all the incidents, trying to get her own way, it was acknowledged that, at worst, Ms Diehm’s “behaviour towards Ms Weise may fall in that category, but again that’s at work. We say that was a disagreement. Ms Diehm’s evidence is that she was frustrated that her Work Cover form...” (TPN2421). The point was that the submissions went “way too far on the evidence” (TPN2429) and, pragmatically, Mr Mujkic acknowledged, “I’m not disregarding the history...We can’t. We shouldn’t.” (TPN2431 and 2433).

[127] In conclusion for Ms Diehm it was put that:

• even if a finding against Ms Diehm was made as to the supermarket trip, (that it was not a case of forgetfulness) the issue of the lie was not so trivial it couldn’t be inconsistent with the continuation of the contract of employment – as not all dishonesty is to be automatically treated that way as shown in Hoyts;



• Ms Diehm engaged in no conduct on the day inconsistent with her medical condition;



• the previous ‘issues’ did not go to dishonesty and, rather, were behavioural;



• Ms Diehm had not denied the ‘milk issue’ happenings and accepted the advice to not raise the milk issue again with the employee involved;



• the issue of Ms Diehm’s advice to the orthopaedic surgeon (given as relevant to remedy/likely duration of future service) was uncertain because of the conflict in the evidence as to the weight of the boxes; and



• in the event of an award of compensation the effect of s.392(3), the consideration of contributing misconduct, would result in a discount reasonably, of some 20%.

Contrasting Cases

[128] It can hopefully be seen from this summary of the key features of the competing cases that this was a detailed and keenly contested case. The cases stand in stark opposition to each other.

[129] The applicant’s case presents an incapacitated worker who says she has suffered from her injury sustained at Toll and who, through two claims, has endured delay, Company attempted manipulation of her medical adviser and, it seems, frustration, as she endeavours against the bullying of the WorkCover officer to ensure her allocated duties do not aggravate her condition. Relevant to the contested facts of Ms Diehm’s last days is her claim that Company officers have conspired to delay and render difficult her compensation claim by harassing Ms Diehm when she was unable to attend for duty and, similarly, by ‘constantly’ contacting her own treating doctor.

[130] Other than the repeated vulgar comment to Ms Luu about all managers at Toll being ‘sh..heads’, said to have been occasioned and justified by Ms Diehm’s overriding conviction that the truth of her injury was not accepted by Toll management, Ms Diehm is not given to concession and does not accept wrongdoing, other than that of Toll’s managers, supervisors and fellow employees, during her short term of employment. (Exhibit T5, Ms Luu’s File Note of Tuesday 20 December 2011).

Ms Diehm’s View of Her Colleagues

[131] Acceptance of Ms Diehm’s account, across the many byways of the short employment history, required one to accept that a number of employees of Toll were so badly intended towards Ms Diehm to wrongly make malicious complaints against her. An example is the case of the fellow-employee to whom Ms Diem complained for keeping the milk on the table too long during meal breaks. In Ms Diehm’s case his subsequent complaint that Ms Diehm had harassed and troubled him by her aggressive approach, was based on falsehood (and an earlier run-in), so reasonable had been both the fact of, and the manner of, her approach to him. So too was Ms Diem wronged, in her account by, Ms Weise’s treatment of her because, for some reason, Ms Weise was said by Ms Diehm to have “ intimidated, bullied and upset” Ms Diehm at a time when Ms Weise had been told that Ms Diehm was depressed from the periods spent at home suffering from her workplace (Ms Diehm’s written complaint of 16 February 2012, Attachment D4 to Ms Toll’s statement, Exhibit D3).

[132] Ms Diehm’s explanation for this was that Toll and Toll self-insurance had been “trying to work together in trying to find something to fire me because I had a work injury. I think it’s discrimination over my work injury and they were working together to try and find some way of getting rid of the problem, and that was her motivation.” (TPN489).

The Final Meeting

[133] Much of the evidence is inconsistent with other evidence. A good example is the parties’ conduct at the final meeting attended by Ms Hilt, the NUW organiser. It was at this meeting that Ms Diehm’s employment was terminated. Mr Smith’s repeated evidence was that the meeting was a difficult one, (Exhibit T7, paragraph 7, TPN1421 “quite difficult”, “quite a difficult meeting”), “a very difficult meeting” (TPN 1440), “quite a difficult one” (TPN1441), “the meeting degenerated, went down a hill a little bit from there. It was a difficult meeting” (TPN1447), “was quite difficult to conduct” (TPN1457), “it was quite difficult” (TPN1451).

[134] For Mr Smith, Ms Diehm was “quite aggressive” (TPN1451), “responded quite vehemently and aggressively” (TPN1451), “quite uncooperative” (TPN1451), “entirely uncooperative” (TPN1448), responded by saying “Well, I don’t agree in a manner which I felt was quire disrespectful if not aggressive” (TPN1447), and who, with Ms Hilt, interrupted on a number of occasions (TPN1421). In his statement (Exhibit T7) Mr Smith said at paragraph 8 that Ms Hilt was “constantly interrupting”. In Ms Luu’s account, Ms Diehm’s behaviour was “uncooperative, disrespectful and dismissive of Matthew’s [Smith’s] statement” (Exhibit T3, Ms Luu’s statement, paragraph 69).

[135] Against this Mr Hilt’s evidence was that Ms Diehm was “tolerant for most of the time and did her best”, (TPN111) and, while refusing to answer questions for the ‘fourth and fifth’ time, started to get a little frustrated, but was “definitely not” uncooperative or disrespectful (TPN112). As to interruptions, Ms Hilt’s evidence was that she did not recall interrupting Mr Smith but raised points when she thought necessary (TPN115).

[136] Ms Diehm did not have a high opinion of the Toll managers and administration; it being her view that in many ways she has been unfairly or wrongly treated. There are any number of examples of Ms Diehm’s view in this regard. At the forefront must be that the general picture of the Toll supervisors at several of the workstations at Toll ensuring the pace is maintained by supervisors unreasonably driving the employees to ensure that warning lights (stemming from blocked belts carrying parcels and boxes) are not illuminated. Most reprehensibly, there is said to be a supervisor who threatens the employees to work quickly or the supervisor will ‘break their fingers’. I have noted that the NUW officials, whether as advocate or witness have not embraced such claims. Mr Cartwright, present at key interviews and active participant in one hotly contested harassment matter, did not give evidence and I will comment further to this effect below.

[137] It is not my intention to comment upon all the evidence, although I will deal with that of the Applicant, Ms Luu and Ms Weise in some detail. I will, however, say something relevant to the findings necessarily made as one goes about the statutory task involved in applying s.387 criteria It will be recalled that s.387 is in the following terms:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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

[168] As to the earlier incidents, if, taken severally, Toll had taken a view that Ms Diehm was guilty of misconduct, then ss.387(b) and (c) have a fundamental role to play. If, to the contrary, Toll had not come to a fixed view about the earlier matters and continued to give Ms Diehm the benefit of the doubt, the fact of the earlier uncertainty cannot be re-conjugated by the events of 10 February to have that earlier uncertainty change to represent events as to which Toll now had a proper degree of certainty. As Mr Mujkic submitted, there is in relation to several of the earlier issues, no, or insufficient, evidence and at the time Toll took the matters no further.

[169] Put another way, if it had not been safe for Toll to come to a concluded view at the time, it remained unsafe to do so, absent some new information relevant to those matters and certainly not well after the fact, by Toll using a broad brush in February 2012. Some of Mr Mujkic’s point by point criticisms of the incidents as reasons for termination have force - particularly in Mr Alsop’s case, where a very considered neutral position appears to have been reached, only after considerable inquiry, thought and, it seems, a robust discussion with Mr Smith. I will return to several of the grounds relied upon by Toll below.

[170] While addressing s.387 it is convenient to continue to deal with the remaining operative sub-sections.

[171] As to s.387(d) I find that no such unreasonable refusal to permit a support person present occurred. Toll facilitated the presence of support persons.

[172] As to s.387(e), as this is a conduct based termination, rather than a performance based termination, I have found that this subsection has no role to play.

[173] As to s.387(f) where the size of the employee’s undertaking is had regard for, I have considered whether that size would have been likely to impact on the procedures followed in effecting the dismissal. Toll’s size permitted it to conduct enquiries, import outside specialist investigators and Mr Smith to assist it in ways which commended themselves to Toll.

[174] As Toll did have and engaged in this case, the staff contemplated by s.387(g) this sub-section is of no effect.

Toll’s inquiry on Ms Diehm’s ‘day off’

[175] Friday 10 February was a normal working day for Ms Diehm had she not reported she was unable to attend for her normal duty. There is no question that 10 February was an authorised absence for Ms Diehm. There appeared some uncertainty at arbitration as to whether the day was to be paid as a day of personal leave (subject to Ms Diehm’s accrual) or ultimately as a paid compensable day. Ms Luu’s evidence in response to my questions was:

“Ms Luu, what was the status of Ms Diehm on that day? Was it a day where she was claiming sick leave or was it some other - how would you describe Ms Diehm's employment status on that day when she visited her sister and went to the shopping centre?---She was on approved leave pending - she was pending - undergoing - her process - her WorkCover compensation claim was pending approval or pending an outcome, but she was definitely on authorised leave during that time.

So it's a period of authorised leave?---Yes.

It's paid? Is that right?---That I'd need to confirm because that would be subject - whether or not she had any personal leave available. If she had personal leave available, then she would be paid for that. If that has been exhausted, then she wouldn't receive any payment for that. I would need to check but I understand that ultimately she was paid for that time because her claim was accepted. I think so, yes.” (TPN1093-95).

[176] Whatever the eventual pay status for that week, and it seems likely it was ultimately a paid workers’ compensation period, Ms Diehm was certainly not on a “day off”. Rather, Ms Diehm was making a claim for payment on the basis of her injury being such that she could not attend for duty - even for light administrative tasks as had been previously assigned. In my view there is ample scope to find a sufficient nexus with her employment, to ground Toll’s interest in establishing Ms Diehm’s bona fides on the day in question. Despite the NUW’s forceful view that it should not have occurred, I did not understand a submission to be put that Toll’s action in scrutinising Ms Diehm’s movements was unlawful. It was clear, however, from the evidence that when advised she had been followed on 10 February at Toll’s request, Ms Diehm was genuinely shocked and offended.

[177] Ms Diehm’s rostered ordinary hours had she worked on 10 February were from 6.00 am to 2.06 pm and it was noteworthy that Ms Luu had regard for Ms Diehm’s span of ordinary hours when considering Ms Diehm’s movements on 10 February. It seems Ms Luu drew a distinction between the trip to the sister’s home in the afternoon falling outside working hours and the shopping centre trip falling largely within working hours (TPN1090).

[178] It is undoubtedly the case that employees have a right to a private life and, as commented upon in Rose by his Honour Justice Ross, when Vice President, “But employers do not have an unfettered right to sit in judgement on the out of work behaviour of their employees.” (Rose, page 12) In my view, if this case was considered as representing an example of review of out of work behaviour, it would come within that limited category reserved by the then Vice President as falling properly to the supervisory capacity of their employer. As an occasion where a claim for payment is being made and as an employee is claiming to be suffering from an inability to attend for duty, the activities engaged in by an employee otherwise rostered-on, on a work day, during their rostered hours, falls entirely within a category of legitimate interest of the employer.

The Shopping Trip

[179] Toll sought to make some capital from Ms Diehm’s recollection of the time she called Toll on the morning of 10 February. Toll’s submission was constructed on a view of Ms Diehm’s movements, borne of her seriously faulty recollection and which Toll knew to be wrong. Toll’s submission was to query how could Ms Diehm forget an otherwise inconsequential trip to the supermarket occurring around 10.00 or 10.30, if, at about that time she was also ringing Ms Weise to advise of her incapacity to drive to work to deliver the WorkCover form. It is a disingenuous argument as Toll are aware that Ms Diehm’s calls were made well prior to 10.00 or 10.30. My understanding is that the first call was made at about 8.00 am and the second after 9.00 am.

A Truthful Response

[180] Much of the Company’s case against Ms Diehm relied on her having an insufficiency of ‘integrity’.

[181] In invoking the STRIVE Behavioural Guidelines (Exhibit T7) I have been conscious that corporate exhortations for employees to possess and reflect ideal-type qualities, attributes of character and virtue to which all may aspire but few attain, cannot supplant real world standards of conduct and capacity. Truthfulness will of course be comprehended within any test.

[182] Toll are entirely capable of requiring that their employees respond truthfully in matters relating to the work and when a work-related enquiry is underway. While there will be difficulties in setting the outer bounds of the employer’s legitimate interest such questions will usually be answered by the facts of the case at hand in preference to applying rules of general application. In this case there is, in my view, an undoubted nexus or link with the employment to ground Toll’s enquiries.

[183] Employers will be held to the same standards of behaviour as applied to those supervised. Undoubtedly the employer will, as in the past, enquire into events within or related to the workplace and seek for employees to respond or comment as to some event. Just as managers and supervisors will be accountable for their actions and for the truthfulness of their accounts in such cases, so will employees. There will be, naturally, fine lines as to impermissibly intrusive inquiries and they will be matters to be considered in the light of all the circumstances of the particular case.

[184] It has long been held that employee conduct inimical to the bond between employer and employee, such that the trust and confidence necessarily reciprocating between the two is lost, can render a termination in such circumstances not harsh, unjust or unreasonable.

[185] Ms Diehm’s persistent answer to Ms Luu’s questions as to her movement on 10February was, as set out earlier, initially that she had not gone out. In the circumstances given above Ms Diehm volunteered that she had visited her sister either late or later in the afternoon. Ms Luu was satisfied with Ms Diehm’s response and I have accepted that Ms Diehm’s acknowledgment of that trip played no part in the decision to dismiss.

[186] Toll’s determination that the employment should be brought to an end was founded (putting the pre February 10 behaviour to one side for a moment) on the failure of Ms Diehm to advise Toll of the mid-morning visit to the supermarket to do, in the words of Toll’s agent, “...a small amount of food shopping” (Attachment 7 to the Respondent’s written submissions, page 3). It was Ms Luu’s judgement that Ms Diehm misled the Toll enquirers. The 22 February 2012 letter of termination sets out Toll’s view that Ms Diehm’s conduct “...in making false and misleading statements both prior to and during the investigation...” provided the reasons for the Company’s decision to summarily terminate for reason of serious misconduct (Exhibit D3, Ms Diehm’s statement, Attachment RD 4).

[187] It is necessary for me to come to a view about Ms Diehm’s conduct on February 10 and particularly whether, on the balance of probability, Ms Diehm engaged in the conduct complained of - that is, whether she deliberately, or wilfully deceived Toll as to her undertaking the shopping trip. Toll argued that for Ms Diehm maintaining that she had not gone out, other than to her sister’s home, was a knowing act of deception.

[188] Toll has made it clear that the fact of the excursion to the shops is of no great interest of itself, nor is Toll concerned about the conformity of the actions engaged in in relation to Ms Diehm’s claimed injury. Toll says, by knowingly holding back the fact of the outing there was an act of misconduct, destructive of the bond of mutual trust and confidence. If one is able to conclude that Ms Diehm’s intention was to mislead her employer it is said to follow that the employment relationship “has completely broken down”.

[189] I have earlier indicated my preference generally for Ms Luu’s evidence over Ms Diehm’s and have or will record how unimpressive is much of Ms Diehm’s conduct. It should then, be an easy conclusion to reach that Ms Diehm set out, intentionally, to deceive Toll by not acknowledging the trip to purchase the milk and bits and pieces. To come to that position, that Ms Diehm did not forget, I would require, given the importance of the conclusion, a firm degree of assurance - to come to a confident conclusion, but still applying the balance of probability, that Ms Diehm intentionally withheld the fact of her shopping trip.

[190] Surprisingly, little evidentiary attention was given to establishing or denying the central issue, did Ms Diehm, in truth, forget? I will traverse the way in which the competing cases sought to establish or deny the Applicant’s deception, that she did not forget and, for the Applicant, the converse, that Ms Diehm truly forgot.

[191] Ms Diehm’s evidence, particularly in cross-examination, reflected a poor memory, or frequent incapacity to recall detail. It is said that because there was no false or misleading conduct there could be no valid reason - or put in the positive, it is only if there is a conclusion that Ms Diehm intentionally withheld the information, that one can conclude serious misconduct occurred. This is because there will be no misconduct, absent a deliberate deception. It will not, in Toll’s conception as I have understood it, be a case of misconduct if Ms Diehm really failed to remember.

[192] It is said also for the Applicant that the conduct itself was inconsequential and as the conduct or the action engaged in did not in any way offend Ms Diehm’s reported condition, or her restrictions, that it ought not be taken as an offence amounting or warranting a termination. This head of argument also relied on one element of the Hoyts point, that not all dishonesty, should it be found, amounted to serious/wilful misconduct such as to justifying termination. For Mr Mujkic it is trivial or, at worst, requiring warning.

[193] Ms Diehm’s evidence was, as to the 16 February meeting with Ms Luu:

• She did not forget going to her sister’s house – advising of this ‘straightaway’ (TPN189-90).



• When she had spoken to Ms Weise on 10 February about being at home and available to give Ms Weise the form, she did not know she was going to her sisters’ home (TPN459).



• She was sure she had otherwise been at home on Friday 10 February.

[194] I have preferred Ms Luu’s account that Ms Diehm did volunteer having visited her sister’s home and that information came when Ms Luu told Ms Diehm “... that the information we had was different” (TPN1058).

[195] It is telling though, to note in Ms Luu’s account that Ms Diehm “... in her first initial version, when she explained what happened, her story or her version of events ended at when Ms Weise and Mr McCarthy picked up the form” (TPN1058), and “I made her aware that that was - the information was different to what I understood. She did then add that she was at her sister’s later that afternoon” (TPN1063).

[196] I have concluded that as to the trip to the sister’s home that the position is this; Ms Diehm advised Ms Luu at the 16 February meeting that she had been at home, that the form had been picked up, from her home, and that when told of the ‘different information’, Ms Diehm then volunteered that later in the day she visited the sister. On Ms Luu’s account it may have been that, like Ms Luu, Ms Diehm differentiated between the working day (when she was at home) and ‘later’ in the day - given that she arrived at her sister’s at 2.22 pm. Certainly Ms Luu was content with Ms Diehm’s response as to the visit to the sister’s. I have concluded it was an act of recollection and, like Ms Luu, not to be held against Ms Diehm.

[197] Much of the Toll case about what Ms Diehm had said, both to Ms Weise in the 10 February telephone calls and to Ms Luu in the meeting of 16 February, concerned whether Ms Diehm had told Ms Weise on 10 February that she ‘would be home all day’, and to Ms Luu on 16 February, that she had been ‘home all day’. I have accepted Ms Diehm’s evidence in cross-examination by Ms Fitzgibbon:

“I think during one of these telephone calls in the morning, on 10 February, you told Michelle [Weise] that you would be home all day. Is that correct? ... No, when she said, “Can I come and pick it up?” I said - and she asked me what time, I said, “It doesn’t matter what time. I’ll be at home, so you can come and pick it up.” (TPN455)

[198] I have not concluded that Ms Diehm sought to deceive Ms Luu about having been home until the visit to see her sister. It was, after all, Ms Diehm’s position that she had been home all day, without other excursion, until departing to take up her sister’s offer of a back rub.

[199] As to Ms Diehm’s 10.25 arrival at the shopping centre and 10.38 departure to purchase “a small amount of shopping” (Applicant’s outline of submissions, paragraph 3-4). Ms Diehm was asked only two questions in cross examination, other than at TPN448, when she was asked whether her telephone call to Toll was before she went shopping. The first direct question was whether Ms Diehm agreed she had said to Ms Luu, at the 17 February meeting, that she was 100% sure she was at home on 10 February until departing for her sister’s, to which Ms Diehm agreed.

[200] The second question from Ms Fitz Gibbon, set out below, was answered fully by Ms Diehm:

“Then Karen [Luu] will say that it's only when you were told that she had information to show that you did other things that you then admitted that you'd also been out shopping?---When she told me, yes, I went shopping, I thought about it for a minute - because I didn't know what she was talking about. When she said "shopping" I thought she meant like I was out buying clothes or something, that sort of shopping - and then I thought about it and I remembered I went to Coles, and I said, "Yes, I did. I went to Coles."” (TPN476 from 2 July Transcript)

[201] It was not put to Ms Diehm that this construction of the events was false. Nothing else was put to Ms Diehm relating to the fact of her alleged false recollection when primed by Ms Luu on 17 February. Having considered the competing evidence, and the way in which it was given, I have determined to accept Ms Diehm’s account on this key point. I have accepted Ms Diehm’s evidence at face value, that, until reminded by Ms Luu, she had forgotten the visit to buy milk and the other few items (the surveillance agent’s “small amount of food shopping” (Respondent’s written material, attachment 7, page 3)).

[202] While I have otherwise not accepted much of Ms Diehm’s evidence, after carefully considering her responses on this point I have preferred her account. I have accepted on the balance of probability that Ms Diehm did forget the fact of her short visit to buy the few goods. I have accepted that when her memory was refreshed by Ms Luu’s comment about “shopping” that Ms Diehm did then remember.

[203] I am mindful of the proposition advanced by Toll; it does not flatter Ms Diehm, portraying her position as based on falsehood, with concessions made by Ms Diehm when thought necessary. The prime example of this in Toll’s view is, of course, that only when Ms Diehm was advised of Toll’s “knowledge” of 10 February was the concession made of the visit to her sister’s home.

[204] In accepting Ms Weise’s evidence as reliable I have noted that on a number of occasions Ms Weise had sought to contact Ms Diehm and had noted Ms Diehm’s absence from her home. It was Ms Weise’s evidence that on 3 February she had tried several times without success to call Ms Diehm (TPN761 and Exhibit T2, Ms Weise’s statement paragraph 7). Of particular relevance is that on 6 February Ms Weise says she spoke with Ms Diehm inquiring about the form. Ms Diehm told Ms Weise (in Ms Weise’s evidence at TPN858) she had not received the form as “she had not been home”. Ms Weise’s evidence was that she asked Ms Diehm where she had been and Ms Weise said Ms Diehm’s response was, “she advised me she was at the shops” (TPN861). I have regarded this as reflecting a real openness on the part of Ms Diehm.

[205] To me, this element of Ms Diehm’s evidence relating to forgetting the short shopping trip, had the ring of authenticity about it. It was given without hesitation or deliberation. Had Ms Diehm been as duplicitous as suggested by Toll, there would have been very little point in her not acknowledging the short trip on 10 February as soon as Ms Luu indicated, on 16 February, that Toll had its own information.

[206] While this is not the reason I have accepted Ms Diehm’s evidence on the “genuinely forgetting point”, it is true that denial of the shopping, so proximate in time to Ms Weise’s visit to pick up the form on 10 February is a most unlikely position to be held by someone who has recollection of the Coles trip and knows of Toll’s ‘additional information’. Only someone who has genuinely forgotten is likely to have held to such an otherwise fatal story. I have closely considered the Toll arguments, including its emphasis on Ms Diehm’s adamance (“110% certain”) that she had been at home on the 10 February until the trip to her sister’s. This certainty on Ms Diehm’s part reflects no more than the fact of her failure to remember the inconsequential outing - displaced ultimately by her recollection. Accepting a person’s evidence does not require that all their evidence must then be accepted and similarly, a part of the evidence of a witness may be accepted where other parts of their evidence has been rejected (Hanna v Monshiel Pacific trading as Boncel, FWAFB, Giudice J, O’Callaghan SDP, Gay C 3 April 2006 (PR967467, paragraph 27). It can be expected though that careful consideration will accompany such acceptance and where findings negative to that witness are also to be made.

[207] I have found that Ms Diehm did forget the fact of the shopping trip until reminded by Ms Luu on 17 February that she had been ‘shopping’. It follows that there was no intention to deceive Toll as to the fact of the shopping trip. As a matter of jurisdictional fact, I have found that a principal element of the conduct complained of, a the prime reason for the dismissal, did not occur. To the extent that the termination relied upon this act of misconduct, which I have concluded to have not occurred, Toll’s principle reason cannot be a valid reason and I so find.

[208] Subject only to the secondary matters, the aggregation of Ms Diehm’s past behaviours to which I now turn, the Company did not, on the shopping trip denial ground, have a valid reason within the meaning of s.387(a). In light of this finding it is unnecessary to consider the degree of seriousness which would attach to Ms Diehm’s falsehood had the finding been she answered dishonestly. Mr Mujkic’s submission was such an act of dishonesty would be at the lower end of any scale as it did not harm Toll’s interests and was inherently petty in nature. I have noted Buchanan J’s comment in McDonald v Pinnell Laboratories (Aust) [2007] FCA 1903 where it was said, “a single foolish (dishonest) act” did not amount, in that case, to serious misconduct to justify termination at common law - although the present case is in a different statutory context. See, too, the discussion in APS Group (Placements) Pty Ltd v Stephen O’Loughlin[2011] FWAFB 5230 at paragraph 56.

The Incidents During Employment

[209] Although the incidents relating to past conduct fortified Toll’s decision, absent the controversy surrounding Ms Diehm’s forgetting/failing to disclose the shopping visit, Ms Diehm’s employment would not have been terminated on 21 February 2012. To the extent that they did form part of the reasons for Ms Diehm’s termination the incidents are now considered pursuant to s.387.

[210] I have agreed with the NUW submission that for these events to contribute as they did to the termination, to form part of the valid reason in the terms of s.387(a), one has to be satisfied that the events in question actually occurred as alleged. In this case there are a string of events which, as the narrative shows, were not investigated to finality, and where some considerable doubt existed such as to how Toll gives Ms Diehm the ‘benefit of the doubt’. This is not disputed by Toll.

[211] In my view a termination based on an accretion of criticisms and suspected wrongdoing cannot substitute for finality and certainty, particularly where a summary termination is involved. I find that Ms Diehm was not notified of these several/series of reasons said to justify in aggregate the termination of her employment as is required by s.387(b). I have made this finding because the Applicant was not advised of the purported reasons other than generally and amorphously. The advice so lacked specificity that Ms Diehm cannot be said to have been notified in a satisfactory way. Ms Diehm was not, in any event, given an opportunity to comment on each of the distinct grounds, the incidents of her employment, in the terms of s.387(b). I find that Ms Diehm was not given the opportunity to respond to the reasons which related to her conduct within the meaning of s.387(c).

[212] As to s.387(d) I have already made the necessary finding that there was no such unreasonable refusal in the terms intended by s.387(c). It is true that as to the background issues relied upon by Toll there was no discussion to which a support person might otherwise have been invited.

[213] As to s.387(e), whether the dismissal related to poor performance and whether the person had been warned about the poor performance prior to the dismissal, I have found this dismissal does not so relate.

[214] As to s.387(f) Toll is a large employer with relevant employment policies and management, to which fact I have had regard.

[215] As to s.387(g) there was no absence of dedicated human resource specialists.

[216] As to any s.387(h) grounds I have sought to raise these in the discussion above.

[217] Having regard for all these reasons, relating to the matter of the 10 February alleged deception and the ‘incidents’ during Ms Diehm’s employment, I have found Ms Diehm’s termination harsh, unjust and unreasonable.

Remedy

[218] I now turn to the matter of remedy. As I have found that s.390(1) (a) and (b) are satisfied because Ms Diehm was protected from unfair dismissal at the time of her dismissal and that she was unfairly dismissed, Fair Work Australia may make an order, as an application pursuant to s.394 has been made (s.391 (2)).

[219] An order for reinstatement is not sought. As an order for compensation is sought I must consider, pursuant to s.390(3)(b), whether “an order for payment of compensation is appropriate in all the circumstances of the case.”

[220] As will be clear from the matters reviewed further to s.392 I have considered whether to make an order for compensation and, as I am of the view that it is appropriate in all the circumstances to make such a remedial order, will do so.

[221] S.392 sets out criteria to be had regard for in the awarding of amounts under s.392(1). S.392 provides;

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWA considers relevant.

Misconduct reduces amount

(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

Note: subsection 395(5) indexed to $61,650 from 1 July 2012

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[222] In determining an amount for the purposes of the s.392 order it is proposed to be made, I have sought to take into account all the circumstances of the case, reflected in the above considerations. In particular I have had regard for the affect of the order on the viability of Toll’s enterprise and have formed the view that the order to be made will not affect that viability (s.392(1)(a)). I have also sought in relation to remedy, as in all the findings made in this case, to ensure that a fair go all round is accorded to Toll and to Ms Diehm (s.381(2)).

[223] I have had regard for the length of Ms Diehm’s permanent service with Toll. At eight months it is a short term and would not provide a foundation for a substantial order, absent some basis for coming to an alternative view. Such a relevant consideration might be evidence that the employee (and employer) had evinced an intention that the employment in question was considered to be a long term vocation. The opposite was the case in relation to Ms Diehm’s employment. Apart from the unedifying squabbles accompanying Ms Diehm, was the Applicant’s dissatisfaction with some fellow employees, with the work itself, the Company’s policies and supervisorial practices, those superintending Ms Diehm and the managers applying the Company’s rules. Ms Diehm’s attitude expressed to Ms Luu was that she preferred giving instruction rather than receiving instruction such that a return to her previous managerial role was in the back of her mind. (s.392(2)(b)) (Exhibit T5, Ms Luu’s File Note 20/12/11, page 2 (s.392(2)(b)). Ms Luu’s 20 December File Note of the Management as sh..heads comment (Exhibit T5) also recorded Ms Diehm’s observation as to her financial affairs, not here repeated, that while she didn’t have to work it was not like her not to do so.

[224] Regard has been had for the remuneration that Ms Diehm would have received, or would have been likely to receive if Ms Diehm had not been dismissed (s.392(2)(c)).

[225] As to mitigation, regard has been had to the submission made for the Applicant at paragraph 52 of the revised written submissions (Exhibit D1), the medical position of the applicant at termination (Attachments RD8 and 6 to Exhibit D3) and the Respondent in dealing with the s.392(2)(d) consideration at paragraph 125 of the Toll closing submissions (Exhibit T8).

[226] Regard has also been had to s.392(e) and that Ms Diehm had not at arbitration earned any remuneration (Exhibit D1, paragraph 52) and in a courteous recent email to my Associate enquiring, understandably, into the likely publication date of this decision an indication was given that there had been no earnings since the arbitration. That latter point is really put in the interests of openness. I have not been influenced by the relevant email.

[227] The Respondent’s closing submissions give close attention to the remuneration the Applicant would have received but for the dismissal. Those submissions refer to the application of the Full Bench decision of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket ((1988) 88 IR 21) (Sprigg). Both Ms Fitz Gibbon and Mr Mujkic submitted that the approach adopted, the steps, in Sprigg should be applied in this case. It is clear from the application of the ‘anticipated period of employment’ that an exercise of judgement is required which of its nature is speculative, informed by the circumstances of each case. The Respondent relied on a Full Bench applying the Sprigg steps and commenting upon “...the imprecise nature of attempting to project a likely future period of employment...”, GH Operations Pty Ltd t/as The Grand Hyatt Melbourne (14 May 2001, Australian Industrial Relations Commissioner, Giudice J, O’Callaghan SDP and Smith C, PR904136).

[228] The Applicant’s case was that had Ms Diehm not been terminated there was no evidence showing that the employment would not have continued for a ‘substantial period’, that Ms Diehm was likely to rehabilitate to her pre-injury condition, that notice had not been paid and Ms Diehm’s workers compensation payments had also been affected by the termination.

[229] For the Respondent it was put that Ms Diehm’s employment history reflected the need for counselling of Ms Diehm and a repetitive pattern of intimidating behaviours and misleading statements. Given this context it is said to have been likely for Ms Diehm to have been dismissed within a short period of time.

[230] It was also contended that further ground existed to believe that Ms Diehm’s period of future service would have been short. Relying on Ms Luu’s letter of September 2011 headed “Discussion Confirmation” which dealt with the need for accurate advice to be given by Ms Diehm to a treating doctor, that certain box-lifting duties and above various weights did not form part of Ms Diehm’s pre-injury duties. That letter concluded, “As clearly explained to you, any persons found to provide false or misleading information relevant to their role and employment with Toll in2store will be subject to serious disciplinary action which would result in the termination of their employment.” (Exhibit T6).

[231] Exception was taken by Toll to the medical report of Dr D Macintosh of 17 February (Exhibit D3, Statement of Ms Diehm, Attachment RD8), which, in the Respondent’s view, contained false information given to Dr Macintosh by Ms Diehm. It was said that were Ms Diehm still employed this matter would have been referred to the Toll Self-Insurance Unit and would have led, in about two or three weeks, to the termination of Ms Diehm’s employment.

[232] In reply on the estimation of Ms Diehm’s future employment, Mr Mujkic reaffirmed for the Applicant the claimed crucial nature of the ‘incidents’, that Ms Diehm has not been ‘formally warned’ (TPN1977), there was a lack of evidence surrounding several, that in relation to the alleged harassment of the fellow employee Ms Diehm ceased her conduct, leaving only three or four issues. Mr Mujkic did concede that ‘a bit had been happening’ during Ms Diehm’s eight months, particularly as to behaviour matters. It was put, quite properly, by Mr Mujkic, that as to Ms Diehm’s employment record, the history could not be disregarded, “We can’t. We shouldn’t.” (TPN2431-33).

[233] As to s.392(3), as to contributing misconduct, it was put, in Mr Mujkic’s alternative submission, that a 20% discount under the general heading of ‘misconduct’ would accord with ‘a lot of decisions’ (TPN2486).

[234] In considering the anticipated period of employment likely to have been open to Ms Diehm had the termination not occurred, I have formed the view that that period would not have extended for a lengthy time. With all that had occurred, the frequency of the incidents blighting Ms Diehm’s service and the likelihood that Toll would not have tolerated further behavioural or performance transgressions, my estimate is that Ms Diehm’s employment would not have continued for a further four weeks. In my view this amount should be decremented by one week by reason of the effect of s.392(3). This reflects my being satisfied that the misconduct of Ms Diehm contributed to Toll’s decision to terminate Ms Diehm’s employment.

[235] The case for the Applicant did not rely on a submission that in the circumstances of this case the previous conduct could not be considered validly as constituting a s.392(3) reduction.

[236] There are instances in this case of conduct by Ms Diehm which warrants disapproval – notwithstanding that Toll did not formally warn Ms Diehm. I do not intend to again review some of the unattractive aspects of Ms Diehm’s service. The early incidents, and the antagonistic behaviour I have concluded was exhibited toward Ms Weise in 2011 and in 2012 go to constitute an employment history which is not trivial or to be overlooked. Intemperate, unreasonable behaviour marked Ms Diehm’s period at Toll. As an example, the use of snide and insulting language by Ms Diehm to Ms Luu, said to be excusable because it was “off the cuff” or stemming from ‘frustration’, does not sit easily with the high standard in all things that Ms Diehm demanded of Toll.

[237] I would also example Ms Diehm’s entirely unacceptable account of the advice she had earlier relied on as indicating that leave was available during Toll’s busy period. I have accepted that Ms Diehm’s early account to Toll included that she had been so advised by a manager. This manager was later unable to be identified and finally the period’s availability had been reduced to being the subject of general discussion amongst gossiping staff. It was not an account to be relied upon.

[238] Having heard the evidence of Ms Diehm, Ms Weise and Ms Luu, I have concluded that Ms Diehm did resort to loud and unreasonable behaviour intended to intimidate or overbear Ms Weise and certainly to make the performance of her tasks most difficult – even allowing for Ms Diehm’s medical condition. Such behaviour and the making of complaints without merit or evidence, including the making of the most serious accusations entirely without evidence, (that Ms Weise would join with other managers and Toll’s insurance unit to have Ms Diehm dismissed because of her injury), have not featured in Ms Mujkic’s measured submissions and have not reflected well on the Applicant. Having these considerations in mind has led me to conclude that the employment would not have long endured.

[239] As there are no earned moneys to be deducted from the amount to be ordered, the amount to be the subject of the order is not to be reduced for that reason. It is also not proposed to further reduce the three weeks’ pay for other contingencies. An order will issue with this decision requiring Toll to make a payment to Ms Diehm of three weeks’ pay less the appropriate deduction for taxation within seven days of the publication date of this decision.

COMMISSIONER

Appearances:

D Mujkic of the National Union of Workers appeared for R Diehm.

C Fitz Gibbon of counsel, appeared by permission, for Toll Transport Pty Ltd T/A

Toll Customised Solutions.

Hearing details:

2012.

Melbourne:

July 2, 3, 24.

Printed by authority of the Commonwealth Government Printer

<Price code G, PR530205>