[2017] FWC 3063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ross Hemmingson
v
Note Printing Australia Limited
(U2016/10456)

COMMISSIONER CRIBB

MELBOURNE, 21 JUNE 2017

Application for relief from unfair dismissal.

[1] Mr Ross Hemmingson (the Applicant) has made an application, under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to his dismissal by Note Printing Australia Limited (the Respondent, NPA).

[2] The application was heard on Monday, 5 December 2016 and Friday, 9 December 2016. Written Closing Submissions were filed on behalf of the Applicant on 3 February 2017 and on behalf of the Respondent on 24 February 2017. Closing submissions in Reply, on behalf of the Applicant, were filed on 9 March 2017. The Applicant was represented by Mr A Jewell, solicitor and the Respondent by Mr J Forbes of Counsel.

[3] Witness evidence was given by Mr Hemmingson and on behalf of the Respondent by Ms V Renton, Head of HR; Mr S Nichols, Print Hall Shift Manager; Mr C McKee, Technical Development Manager; Mr D McGrath, Manufacturing Manager; Mr P Clarkson Training Manager and Mr M McDowell, Chief Executive Officer.

[4] The Commission issued a confidentiality Order 1 pursuant to sections 593 and 594, on 7 December 2016, in relation to this matter. Pursuant to that Order, confidential evidence has been de-identified or described in general and non specific terms, where appropriate throughout the Decision.

Legislative framework

[5] Section 387 of the Act sets out the criteria that the Fair Work Commission (Commission) must take into account in considering whether the dismissal was harsh, unjust or unreasonable. It provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[6] I will consider each of the criteria in turn.

Section 387(a) - was there a valid reason for the dismissal?

[7] On 4 August 2016, Mr Hemmingson was summarily dismissed by NPA for serious misconduct, for having sent a number of work emails to his personal email address, on 21 July 2016, three of which contained confidential and sensitive technical information.

Witness evidence

Mr Hemmingson

[8] It was Mr Hemmingson’s evidence that:

He had sent the first and second emails home to demonstrate that, in the sender list, Mr Bermudez was not included in the sender list, to demonstrate that he was not part of the process of embossing which denied him the senior printer role on that basis. 2

The content of the email was not important. He did not need the email’s content as he had all of that information in his head. 3

The header list was the only part that he wanted. This was because the header list stated that Mr Bermudez (the process specialist) was not included in any of the production run/particular job that they did. 4

He was denied the senior printer role by Mr McGrath on the basis that he had two process specialists lined up to take the lead in the new process - yet it was he (Mr Hemmingson) who was taking the lead. 5

The reason he had sent the third email home was because he had been told to leave it alone when he had expressed his concern about the proposed measuring system for the new notes. He explained that he felt that they weren’t listening and weren’t taking on board anything that he was saying and so he felt a form of discrimination. 6

The two reasons for sending through the emails were because he had been denied a senior printer position on the embossing process and secondly, the discrimination over the previous two - three years. 7

He agreed that the explanation that he had just given the Commission was not the same explanation that he gave during the meeting prior to his dismissal. 8

He agreed that the reasons he had just given the Commission were not directly in his witness statement but Mr Hemmingson said that the reasoning behind it was. 9

He agreed that the environment in which NPA produced its product was probably the most secure printing environment in Australia. 10

He agreed that NPA highly guarded its security and confidentiality and confirmed a range of features in this regard. 11

He had attended annual security awareness training and also a briefing on the Code of Conduct when he started. Mr Hemmingson knew that the Code of Conduct was available on the internal intranet. 12 He confirmed that he had signed the Code of Conduct when he commenced employment.13

He disagreed that, when he had signed his annual performance appraisal, he had signed that he had read and understood the Code of Conduct. This was because the form had a pre-printed cross which he was not required to initial. 14

He did not accept that his signature on the appraisal form constituted acknowledgement that he had read and understood the Code of Conduct. Mr Hemmingson agreed that it was reasonable to assume that his signature on the form meant that he had acknowledged that he had read and understood the Code of Conduct. 15

He confirmed that, in November 2008, he had been spoken to about his failure to wear appropriate personal protective equipment (PPE) - earplugs. 16

He confirmed that he had received a first written warning in March 2009 regarding inattention and poor work practices which caused 12 - 13 hours of lost production. 17

Shortly after Mr Clarkson’s promotion to a supervisor position in 2012 (Mr Hemmingson’s supervisor), Mr Clarkson had started to single him out and treat him unfairly. 18

There was an incident in 2012 when Mr Clarkson asked him to assist with a particular task (loading sheets of paper into a pre-loader) and he had objected. This was because he was not trained on that machine and he also had work on his press. Mr Hemmingson recalled that there were qualified loaders on the machine next door who had experience on that press. 19

It was stated that Mr Clarkson chose him rather than experienced staff. Mr Hemmingson said that this was Mr Clarkson picking on him. 20

He had preferred not to assist Mr Clarkson for safety reasons and for not being trained on the $20 million press. 21

It was common knowledge that it was a serious breach of security if the unprinted stacks were not returned to the shift store by the end of each shift. 22

There was an incident between Mr Micallef and himself and he had received a final warning for what he had said. Mr Hemmingson recalled that, after the incident, he and Mr Micallef had had a conversation. 23

He disagreed that Mr Micallef had been terminated for throwing a stick at him. Rather, Mr Micallef was said to have been terminated for trying to strangle him. 24

He had an argument with Mr Bermudez in 2013 which was at Mr Bermudez’s instigation when he came to his press. Mr Hemmingson told Mr Bermudez more than once to go away and Mr Rodriguez had intervened and told Mr Bermudez to go away. 25

A couple of weeks later, Mr Clarkson had raised the argument with him. Mr Hemmingson said that it had taken him a little while to work out where Mr Clarkson was coming from. Mr Clarkson had told him that he had to go and see HR. 26

There were arguments in the printable every day but denied that he was involved in a fair few of them. 27

He did not feel that Mr Clarkson was picking on him until he found out that Mr Clarkson had instigated it. Mr Hemmingson stated that somebody else had dobbed him in about the argument but said that it was Mr Clarkson who had decided to take it to HR out of a duty of care. 28

He was given an extension of three months to the final warning he had received in relation to the incident of Mr Micallef strangling him. 29

He generally had good relationships with his colleagues and supervisors. For example, he had run a syndicate for lotto which meant that he had a lot of interaction with other staff. Further, he had been asked to mentor apprentices and also to train them on a GDO machine. 30

He agreed that saying that he had good relationships at work was inconsistent with what he had said about Mr Clarkson. Mr Hemmingson acknowledged that his relationship with Mr Clarkson was sour and strained and that he had had a few difficulties with him. 31

He denied that he didn’t have a good relationship with Mr Micallef and said that they were good friends. On the night of the incident, Mr Hemmingson explained that Mr Micallef was under a lot of pressure. 32

He had a good working relationship with Mr Bermudez despite raising his voice at him so loudly that others could hear and being given an extended final warning. 33

He tried to have a good relationship with Mr Vincent but it did not happen. 34

HR served a purpose and he didn’t think much of the previous person but the new one was better. 35

He and Mr McGrath had arguments which they then resolved. In the final months, he felt discriminated by Mr McGrath. Mr Hemmingson confirmed that he had accused Mr McGrath of denying him a position to which he believed he should have been appointed. 36

He agreed that he had behaved in a meeting with Mr McGrath in such a way that, after reflecting on it, he had apologised. 37

In relation to the incident with Ms Classen where she had bumped into him and she had accused him of touching her breast, he disagreed that the matter had been fully investigated. This was because he had requested that HR handle it but HR had never asked him about it. 38

He confirmed that, as part of the investigation, the company had reviewed the video footage. Mr Hemmingson agreed that the company had concluded that there was no malice on either party’s part. However, Mr Hemmingson stated that he did not accept the outcome. 39

He had expressed an interest in learning the new emboss machine long before it arrived and before the restructuring - to lead on it (on 5 July 2016). Mr Hemmingson recalled that he had asked another senior printer (Mr Katis) to go on the process with him. 40

He confirmed that Mr Bermudez and Mr Katis were process specialists and more senior employees than himself with greater experience in their set processes. 41

Mr Hemmingson stated that when the new machine came in, he, Mr Katis and Mr Bermudez learnt the new machine. 42

There was discussion on the floor about what Mr Hughes had done. Mr Hemmingson recalled that Mr Hughes had gone on a social media site (Reddit) and had disclosed the background of the new $5 note. He said that he hadn’t realised the seriousness of what Mr Hughes had disclosed at the time. 43

That Mr Hughes had just about lost his job had been brought up by Mr McGrath during one of the Wednesday meetings. 44

It was widely known that Mr Hughes had a family relationship with the CEO and a cousin who was a supervisor in the printable. Mr Hemmingson said that he and Mr Hughes were friends and that they had both started at the same time. 45

He believed that Mr McDowell had handed out highly preferential treatment to Mr Hughes and that his influence had a bearing on the decision not to dismiss Mr Hughes. 46

During an internal tour, Mr Clarkson had made a comment to the effect of “Don’t talk to the animals” when Mr O’Connell was talking to him. 47

Following this event, he had sent Mr Clarkson two emails. Mr Hemmingson explained that he was not in a good frame of mind when he wrote the first email. 48

He wanted an apology from Mr Clarkson and for him to say that he was an idiot in an email to those who were in the tour group and to himself. 49

The reason he wanted the apology to be to a group of his peers was because Mr Clarkson was out of line by calling him an animal and having a cheap laugh at his expense. 50

He had taken out the idiot requirement in his second email and had just requested an email apology. Mr Hemmingson explained that he had removed the “idiot” request after speaking with Mr O’Connell who had suggested he do that. 51

He disagreed that bolding “stress leave” in the email was a threat. Rather, it was to encourage Mr Clarkson to do it. 52

He agreed that what he had asked Mr Clarkson to do in the email was the only basis on which the issue could be satisfactorily resolved. Mr Hemmingson said that going to HR was not his style as he preferred to try and resolve it quickly without involving HR. 53

He had sent another email to Mr Clarkson the next day when he had not received acknowledgement of his previous email. Mr Hemmingson explained that resolving it “amicably and without prejudice” meant without the use of HR. It was stated that most problems in the Print Hall were resolved without HR. HR was said to be a last resort. 54

He confirmed that the thrust of the email was that Mr Clarkson had until 3:30 pm to do something about it and said that there was no “or what”. Mr Hemmingson denied that that was intended as a further threat to Mr Clarkson. It was said that he wanted Mr Clarkson to apologise in an email by the end of his shift. 55

He was not surprised that Mr Clarkson had raised the issue with Mr McGrath. Mr Hemmingson agreed that he could have done the same but had tried to resolve it himself in his way. 56

He confirmed that Mr McGrath had come to see him and had tried to broker a settlement between himself and Mr Clarkson by facilitating an apology from Mr Clarkson. Mr Clarkson had apologised to him and they had shaken hands. 57

In April 2016, he received an invitation to a morning tea from Mr McDowell. During the morning tea, it was recalled that he had asked Mr McDowell a question about why NPA allowed competitors inside the building, let alone to the presses. 58

He had raised the issue of the Bank of Canada using NPA’s machines in response to NPA’s argument that the emails he had sent himself could have got into the hands of counterfeiters or competitors - when competitors were invited in to see the presses. Mr Hemmingson explained that he had found it very strange that people against whom NPA tendered 59 were coming in to look at their technology. He could not accept it.

Given this context, he was hurt when he was accused of possibly aiding counterfeiters and competitors with the information that was in the emails he sent home. 60

He confirmed that he had also asked a question during the morning tea about why NPA was advertising for a print shift manager with no printing experience to supervise printers. Ms Renton had answered the question and he was a bit shocked about that as he had asked the question of Mr McDowell. 61

He believed that Ms Renton was offended by the question on the basis of the speed of her answer. 62

He confirmed that the answer was that the company was looking for someone with leadership or people experience rather than printing experience. 63

He could not understand why, when NPA was going into the new note series and there were a lot of problems. Mr Hemmingson believed that technical experience outweighed the relationship side. 64

He should not have asked the question in that fashion and maybe he had made a mistake in asking them the way he did. 65

He felt that him asking those questions had all built up to his termination/had gone against him. Mr Hemmingson said that he felt that, in asking those questions, he was doing something positive for NPA. 66

He had thought this before he was dismissed but, during the termination meeting he couldn’t explain a lot of things. This was because he had been instructed by the AMWU not to relay the real reason. 67

He confirmed that employees had been walked through the Print Hall restructure in July 2015 which included the proposed reporting structure which was put up on the board. 68

He confirmed that he had emailed Mr McGrath on 5 July 2016 to say that he would like to be considered for the senior printer position on the emboss process. 69

He agreed that, when Mr McGrath had presented the proposed restructure in July 2015, he had not said that there would be a senior printer or senior printer leadership position on the new emboss process. 70

He agreed that Mr McGrath’s response on 7 July 2016 was consistent with what Mr McGrath had said in 2015. Mr Hemmingson confirmed that Mr McGrath’s email response was that there would not be a senior printer leadership position because there were two process specialists being trained on the process. It was agreed that Mr McGrath was entitled to make such a strategic decision. 71

He disagreed that Mr Bermudez and Mr Katis were being trained on the process. Mr Hemmingson stated that they had both undertaken the initial training (trials and the production run) but that Mr Bermudez had been reallocated to other work and did not take a lead role in those activities. 72

Despite becoming aware that there was not to be a senior printing position, he had asked to be considered for a position, which was not going to exist, because it was the only process out of eight processes which did not have a senior printer. 73

The reason for persisting about a senior printer position was because what was proposed by the company did not happen. This was because one of the two process specialists was taken away because he didn’t want to be on that process. Mr Hemmingson explained that this left he and Mr Katis to lead the process. He recalled that the other process specialist was not rostered so that he could be involved in the process. 74

The meeting with Mr McGrath and Mr Nichols, on 11 July 2016 to discuss his request to be appointed to a senior printer role, got heated. Mr Hemmingson acknowledged that he became angry during the meeting. This was because Mr McGrath continued to raise his finger whilst he was talking and Mr Hemmingson felt threatened by that which led to him being angry and he raised his voice. Mr Hemmingson also recalled that he became frustrated because Mr McGrath was not listening to the effect of his rostering decisions around the second process specialist. It was said that Mr McGrath had told him that rostering had nothing to do with him. 75

He denied that he was openly aggressive towards Mr McGrath because he was composed enough to keep the conversation going. 76

He agreed that he knew that he had conducted himself poorly during the meeting and so had approach Mr Nichols the next day (12 July 2016) to get his thoughts on the meeting. He (not Mr Nichols) had suggested that he apologise to Mr McGrath. Mr Nichols was said to have responded that he would be the bigger man if he did. 77

During the conversation with Mr Nichols, he had told him that his wife had problems at work and was having counselling for depression as she was being discriminated against and they were trying to get her out. 78

He had apologised to Mr McGrath and had told him that he was going through a rough time and the reasons why (his wife’s health). 79

He confirmed that he had three days off as his wife took a turn and was very unwell. He had obtained a medical certificate for himself rather than carers leave because it was hard to get carers leave. 80

After the heated meeting with Mr McGrath, he had sat back to see if anything came of it. As nothing (no promise or any prospects) had been forthcoming, Mr Hemmingson recalled deciding that he felt discriminated against enough to gather the emails (30) and send them to himself, on 21 July 2016. 81

He had gone to possibly two computers next to the machines in the print hall and had logged into his work email account. Mr Hemmingson explained that he had forwarded emails with anything to do with embossing in the header that prove that the other process specialist was not involved. 82

He thought that it was possibly correct that he had sent 27 emails over a 45 minute period. Mr Hemmingson recalled that he had created a list to see how quickly the emails went out. He thought it was possibly correct that he had sent another three emails a couple of hours later. 83

He had counted 23 emails, some of which had other emails with them. Mr Hemmingson accepted that he had sent 30 emails, individually, to his home email (Hotmail) address. 84

Mr Hemmingson agreed that some of the emails were from 2014. He did not have to spend a lot of time searching for the emails as he didn’t keep an archive of emails. He probably had only 50 - 60 emails in total, which were those that he felt had been important to keep. 85

He confirmed that Exhibit VR9 were the emails that he had sent to himself on 21 July 2016 between 7.00 am and 9:46 am. 86 Mr Hemmingson agreed that there was nothing accidental about him forwarding the emails to his home email address.87

At the time he sent the emails, he knew that the Code of Conduct applied to him. Mr Hemmingson explained that he did not think he was doing anything wrong. 88

He knew that he had an obligation to comply with all NPA’s policies and procedures. Mr Hemmingson stated that he was not aware that there was a policy about sending an email. He knew that a policy about the acceptable use of technology existed but not in detail and that it was on the intranet. 89

He confirmed that he had signed an intellectual property and confidentiality deed when he commenced with NPA. 90

He was informed by Mr McGrath (on 3 August 2016) that he was required to meet with he and Ms Renton (HR) the next day because it appeared that he had engaged in a serious breach of company policy. 91

He confirmed that he had left work shortly after this because he was shocked after Mr McGrath had told him that he could lose his job. 92

He did not believe that he had opened Ms Renton’s email that had been sent that morning. He did not dispute that he had received it but said that he was not seriously in a state of mind/was in another world and so could have done a lot of things. 93

The next morning, 4 August 2016, Mr McGrath had blasted him for not telling him that he was leaving. Mr Hemmingson recalled responding that he did tell supervisors and two of his workmates. Mr McGrath was recalled as having said that he had to come and see him directly. It was said by Mr Hemmingson that the normal practice was to go to the supervisors. 94

During the meeting with Ms Renton and Mr McGrath, Ms Renton had outlined the allegations and said that he had breached a number of company policies and that the allegations were serious. Mr Hemmingson thought that the emails had been picked up by the internal IT security system on the basis that they contained sensitive information. 95

Ms Renton had told him that she had looked at the emails and was of the view that the emails contain some sensitive information. Mr Hemmingson recalled that Ms Renton showed him three emails which were considered by the company to contain highly sensitive technical information which ought not to have been disclosed outside the business. 96

He agreed that the emails contained information which ought not to have been disclosed outside the business and that there was no circumstances when that information ought to be disclosed outside the business by an employee. 97

He agreed that, when asked why he had sent the emails, he had referred to the senior printer discussion with Mr McGrath and had said that he felt that he wasn’t going anywhere in the business. 98

The advice he had received from his support person (Mr Bull) was not to inflame the situation by using the word “discrimination” which was the reason he had given Mr Bull. Mr Hemmingson said that he was therefore restricted in what he could say and so had used the word “reflection” in terms of the emails. 99

Mr McGrath had deliberately sought to unsettle him before the meeting with Ms Renton by demanding that he send Mr McGrath an email. Having another run-in with Mr McGrath before the meeting was described as a bit of a dirty tactic on Mr McGrath’s part. 100

He had thought that the outcome of the meeting would be a warning as he had a clean record. 101

The information that NPA was concerned about was sensitive but it was also tangible (measurable). Mr Hemmingson explained that anyone could get a brand new uncirculated note and measure it. It was acknowledged that the information was sensitive, but Mr Hemmingson explained that the information was not what he had wanted. This was because the information was in his head. 102

It was Mr Hemmingson’s view that a counterfeiter or competitor would not need the information in his emails, as features such as UV or how much ink was on the paper could be measured with readily available measures. 103

He disagreed with Mr McKee’s views and pointed out that RBA, the parent company, did not regard it as a security feature but NPA did. Mr Hemmingson also disagreed with Mr McKee’s statement that the first email contained information which detailed NPA’s process and finished product specifications for an embossing feature that was unique to NPA. 104

The embossing feature was not unique to NPA because it was already in existence as it was based on Braille. Mr Hemmingson explained why he thought this was the case. 105

He disagreed that the first email contained technical specifications and said that it was a target or a very very wide specification. 106

He accepted that the set of numbers and parameters in the first email set the parameters for the embossing feature on a banknote. Mr Hemmingson added that it was neither unique to NPA nor a security feature. 107

He conceded that any information regarding a banknote was sensitive. Mr Hemmingson agreed that it should not have gone with the email but said that the content was not what he was after. Rather, it was about the sender list not the content as he had the content in his head. 108

He agreed that he had not provided this explanation to Ms Renton due to being under a lot of pressure. 109

He disagreed that the second email provided information from which process conditions and other things could be inferred. This was because a counterfeiter could work out the measurements themselves. 110

In relation to the suppliers contained in the email, there were no names specified and there were companies in Australia who could do the same thing. Mr Hemmingson also said that the email did not state that particular companies were the suppliers. 111

In terms of a particular product referred to in the email, Mr Hemmingson stated that it was commercially available and disagreed that it was unique to NPA. 112

He disagreed that the third email referred to the luminescence of the fluorescent patch. Mr Hemmingson stated that there were no measurements and no reference to the serial number of a note. Rather, they were the readings of the luminescence or fluorescence that he had taken and how far out of specification they were, not the specifications per se. Mr Hemmingson acknowledged that the email might assist a counterfeiter with what not to do. 113

He disagreed that one could work out the specification from the numbers in the email because they did not say whether they were high or low compared with the specification. Mr Hemmingson stated that the email did not contain the specification. 114

He acknowledged that, during the meeting with Ms Renton, he had initially said that the technical emails had been sent in error. Mr Hemmingson also said that he wasn’t sure if the emails had any attachments. This was because he did not need any of the technical information. 115

He explained that an attachment to an email meant to him anything after the main email. Mr Hemmingson indicated that he now understood that there had been a misunderstanding between himself and Ms Renton when he had asked Ms Renton if there were any attachments. 116

He confirmed that he did not tell Ms Renton, during the meeting on 4 August 2016, about his wife or her health. 117

Also during the meeting, he had told Ms Renton that he had recorded the meeting with Mr McGrath and Mr Nichols. This was because it was being said that he had been very condescending and argumentative during the meeting. Mr Hemmingson stated that, if one listened to the recording that was not the case. 118

Mr Nichols

[9] Mr Nichols gave evidence that:

Mr Hemmingson was upset at not being given the title of senior printer. 119

He had attended a meeting with Mr Hemmingson and Mr McGrath on 11 July 2016. He had attended the meeting to assist with resolving Mr Hemmingson’s concerns around the denial of his request to be promoted to a senior printer role. 120

During the meeting, Mr Hemmingson’s conduct was defensive and argumentative and he was inappropriate, and condescending towards both himself and Mr McGrath. 121

He spoke with Mr Hemmingson the day after the meeting and had suggested to him that his conduct had been out of line. Mr Hemmingson had acknowledged that he had acted inappropriately. 122

He recalled that it was his idea that Mr Hemmingson should apologise to Mr McGrath. Mr Nichols said that he had said words to the effect that Mr Hemmingson had not conducted himself too well at the meeting and that he should offer a sincere apology to Mr McGrath. Mr Hemmingson had agreed. 123

He knew that Mr Hemmingson’s wife had some problems with McDonald’s and that they were going to take legal action. Mr Nichols said that he did not recall anything about personal health issues. Mr Nichols thought that it was causing Mr Hemmingson some distress. 124

He had not had any problems with Mr Hemmingson personally. 125

Ms Renton

[10] It was Ms Renton’s evidence that:

She confirmed that NPA has some of the highest confidentiality standards as NPA’s business depends on the strictest standards of security and confidentiality. The Acceptable Use of Technology policy was said to be important in maintaining that security. 126

She agreed that the policy in relation to social media (which was strict) said that employees must not reference or cite NPA or NPA’s clients. 127

She agreed that the Acceptable Use of Technology policy said that employees were not to identify themselves as employees of NPA unless it was necessary for a work-related purpose or it had been previously authorised in writing by the employee’s manager but on no other occasion. 128

NPA did not allow the employee to determine whether what they said on social media water would not damage the reputation of NPA. 129

NPA also strictly applied the policy where it said that work-related tasks, problems etc. should not be discussed on social media. It was Ms Renton’s experience that it would be strictly applied. 130

Mr Hughes’ incident

In relation to the post by Mr Hughes on an online forum, it was indicated that Mr Hughes’ posts should not have identified that he worked at NPA. Ms Renton agreed that it was a breach of the social media policy. 131

With respect to Mr Hughes’ various posts, her only concern was with the statement about working at NPA. Ms Renton indicated that she would also be concerned if an employee talked about detailed security measures. 132

It was her understanding that Mr Hughes’ comments about Braille, spark and screen etc. had been publicly explained in relation to the banknote series. Ms Renton thought that the tactile feature was in the public arena. 133

She explained that she was comfortable with people talking about the existence of security features as they were well-publicised and so she did not consider them to be confidential information. However, Ms Renton said that she was not comfortable with people talking about the specifications of how those security features were made. 134

She agreed that talking about the security features constituted a work-related task. 135 Ms Renton was not comfortable with Mr Hughes discussing work-related tasks on social media. Ms Renton stated that she did not think the whole thing was acceptable and it had been addressed.136

She denied that the policy was not applied strictly and believed that it was, despite her only concern about Mr Hughes’ posts being that he had said that he worked at NPA. 137

She was not concerned about Mr Hughes’ comment to the effect that the new note had been 7 - 10 years in development or that “We helped with the NZ notes.” 138

At the time, it didn’t concern her that Mr Hughes had referenced an NPA client (NZ). 139 Ms Renton said that she didn’t know whether the NZ post was reference to a work-related task or work done by NPA as she did not know what context that was done in.140

It was Ms Renton’s understanding that NZ banknotes were done elsewhere. 141 Mr Hughes’ confirmation that NPA printed Singaporean notes concerned her as it was referencing work done by NPA. Ms Renton said that she did not recall seeing it when she went through the posts originally (five months ago).142 Ms Renton thought that NPA’s printing of Singapore’s notes was on the NPA website but said that that did not necessarily excuse a breach of policy. It was stated that the thing that stuck in her mind was Mr Hughes identifying himself as an NPA employee and that that was the big issue.143

She had taken Mr Hughes’ comments about it being almost Christmas as Mr Hughes joking. 144

She was not debating that Mr Hughes’ comments were inappropriate. However, her key concern was that Mr Hughes had identified himself as an NPA employee. NPA would be as concerned if Mr Hughes had simply said that he worked at NPA. 145

The company applied the policy based on the individual circumstances and the facts of each situation were investigated. 146

The conversation with Mr Hughes was about identifying himself on social media and making inappropriate comments. Ms Renton explained that the comments, taken individually, had not concerned her. However, when taken together with the disclosure that he was an NPA employee, they were of concerned and were addressed. 147

Mr Hughes’ comment that the release of the other denominations was likely yearly but that there was nothing official yet was a concern but it was thought that Mr Hughes was guessing. Ms Renton did not think that Mr Hughes had released confidential information. 148

All of the comments were concerning to a degree but the primary issue was Mr Hughes’ identification as an employee. All of the other comments were of concern as Mr Hughes should not have made them as an NPA employee. 149

Mr Hughes’ response to a “hookers” comment was said to be inappropriate and potentially damaging to the reputation of NPA. Ms Renton agreed that it was a breach of policy. 150

In terms of the comments about Innovia, this information was said to be in the public domain. 151

She agreed that Mr Hughes’ comments that the braille feature was put on for people who couldn’t bear to look at it was inappropriate. 152

Mr Hughes’ comments during a conversation about counterfeiting were inappropriate. 153

She agreed that she was not the technical expert in the organisation in relation to sensitive information. Ms Renton indicated that she did not show the online forum transcript to Mr McKee. 154

She had spoken to some of her colleagues and asked their opinion about the information that had been shared by Mr Hughes (she had only been with NPA for three - four weeks). Their views were that the comments were inappropriate and a bit stupid but that there was nothing which was confidential. 155

It was a breach of the technology policy with inappropriate comments but not a potential risk to NPA’s reputation. 156

She did not consider Mr Hughes’ actions serious misconduct but misconduct. Ms Renton indicated that she had determined to issue a first warning after consultation with her colleagues. It was explained that, if Mr Hughes had engaged in similar conduct again, he could potentially be given a final warning, depending on the incident. 157

The technology policy did not say that any breach of the policy automatically resulted in dismissal. 158

Part of the decision to issue a first written warning was that Mr Hughes had acknowledged his wrongdoing, although it was not a critical part. 159

Mr Hemmingson’s warnings

Mr Hemmingson’s final warning, dated 8 April 2013, which stated that it would remain on his personal file for six months, was acknowledged to exist even though it had expired. Ms Renton distinguished between a warning being valid for a period and then remaining on the file versus a warning expiring and then being removed from the file. 160

She knew that Mr Hemmingson’s warnings existed but said that they were not really relevant and were not relied upon. 161

Morning tea

During the morning tea in April 2016, she remembered Mr Hemmingson asking a question about why the company was hiring a print shift manager without print experience. Ms Renton stated that she had not been concerned in the least about the question/had no issue with it at all. 162

The emails

She became aware of Mr Hemmingson’s sending of emails home on Thursday, 28 July 2016 following receipt of an email saying that there was technical and work-related content in the emails. Ms Renton said that that had caused her immediate concern and so she had immediately started an investigation. 163

The first thing she had done was to read the emails which took some time as there were quite a lot of them. Ms Renton recounted that she had then spoken to Mr McKee about them. Mr McKee had advised that, in his opinion, they contained sensitive confidential information. 164

There had already been a breach of policy by Mr Hemmingson sending anything home. When Mr McKee said that they contained sensitive information, the breach was considered to be more serious. 165

She had not taken any immediate action e.g. suspension at this point as she was still investigating. 166

The emails had already gone out and so none of the suggested actions would have stopped anything else from happening. 167

The purpose of the policy was to prevent information going outside of the business. Ms Renton stated that, once information went outside the business e.g. to a Hotmail account, NPA had no control over what happened to it. It was said that it could get into a third-party’s hands. 168

She agreed that part of the purpose of the policy was to secure data so that it didn’t get into a third-party’s hands. 169

She didn’t know whether or not she had thought about the possibility of Mr Hemmingson sending further information. Rather, she was more concerned about what had already gone. Ms Renton confirmed that Mr Hemmingson was left in and around confidential information while she was investigating. This was because she was focusing on getting the investigation done as quickly as possible. 170

Maybe she should have suspended Mr Hemmingson but she did not. The primary concern of the organisation was that that information had gone out from the organisation’s systems into an unsecured Hotmail address. It would have been a secondary consideration as to what would happen to that information after it had gone there. 171

Mr Hemmingson was asked to delete the emails on 4 August 2016 during the dismissal meeting. Mr Hemmingson had not been asked to delete them before then as she hadn’t had a conversation with Mr Hemmingson. 172

Mr Hemmingson was terminated for a breach of the Code of Conduct, Acceptable Use of Technology policy and the deed he had signed on employment. One of Mr Hemmingson’s breaches of the Code of Conduct was Mr Hemmingson not abiding by an NPA policy. 173

In relation to the breach of section 7 (Security) regarding unauthorised disclosure of classified information outside of the premises, she did not know whether Mr Hemmingson had disclosed the information to anyone. 174

During the meeting on 4 August 2016, she could not remember whether she had asked the question or whether Mr Hemmingson had told her that the information had not gone any further. Ms Renton said that she saw no reason not believe Mr Hemmingson. 175

She did not know if Mr Hemmingson had breached the section of the policy in relation to know unauthorised disclosure of information. Ms Renton said that the organisation new that the information had gone outside of the NPA and stated that it depended on whether or not that was considered to be “disclosure”. 176

In terms of the breach of section 2.1 of the Acceptable Use of Technology policy (making information available), or may could be verified was that all Mr Hemmingson did was have that information on his Hotmail address. Ms Renton said that it was not for her to determine how anyone would access the information in Mr Hemmingson’s Hotmail account. 177

She assumed that Mr Hemmingson’s account was password protected part did not know whether Mr Hemmingson had provided information to someone else. Ms Renton said that she had no reason at the time to disbelieve Mr Hemmingson when he told her that he had not provided the information to anyone else. Ms Renton recalled that Mr Hemmingson had also told her that the emails had been deleted and she had subsequently found out that they weren’t. 178

She confirmed that she had determined that Mr Hemmingson had made the information available as Mr Hemmingson had sent the information to his home email address. 179

She had made the determination that Mr Hemmingson had made unauthorised and improper use of email and Internet services (section 6.1 General Requirements). 180

In relation to section 6.8 (business documents and email should not be sent to personal accounts or publicly available email systems), this was the primary breach by Mr Hemmingson but Mr Hemmingson had also made other breaches of the Acceptable Use of Technology policy. 181

The breach of section 6.7 was that there was a breach of section 2.2. 182

The organisation did not dismiss employees for every breach of the policy. 183

She did not know whether Mr Hemmingson had maintained confidentiality and secrecy about NPA’s affairs. Mr Hemmingson was said to have sent non-public information outside of the organisation to a public email address. Ms Renton indicated that she could not categorically say/did not know that Mr Hemmingson had breached the confidentiality and secrecy of the information. 184

Mr Hemmingson had breached the requirement to faithfully and diligently serve NPA and promote its interests and welfare, by sending the emails home. 185

She did not know whether Mr Hemmingson had breached the confidentiality piece but Mr Hemmingson had breached the other two. 186

The breach of Part A of Mr Hemmingson’s employment contract was part of NPA’s decision-making process. 187

In relation to section 3 of Mr Hemmingson’s intellectual property confidentiality deed, she did not know whether or not Mr Hemmingson had breached that section. Ms Renton said that there were other provisions in the document. 188

She had relied on the document as a whole as part of the reason for Mr Hemmingson’s dismissal but specifically, it was section 2 and 2.1(a), (b) and (c). 189

She had obtained technical advice about three of the emails as they were the ones of particular concern. 190 This was because they had details of measurements of the product. The three emails were the start and finish of the reason for Mr Hemmingson’s dismissal.191

There were some emails that were examples of Mr Hemmingson raising issues. Ms Renton stated that she was aware that Mr Hemmingson was upset and felt that he should have been made a senior printer. 192

There were some emails about the animals comment but she did not think that Mr Hemmingson was going to make a formal grievance. This was because she has spoken to Mr McGrath about the incident and it was resolved. Ms Renton explained that she had not been concerned about past issues. 193

After she has spoken to Mr McKee about the three emails, she decided that it looked like serious misconduct and so there needed to be a conversation with Mr Hemmingson. 194

She spoke to Mr McGrath and said that he needed to advise Mr Hemmingson that there was to be a formal disciplinary meeting and that his employment may be at risk and that he could have a support person. 195

There was nothing that Mr Hemmingson had said during the meeting that had prevented his dismissal. There could have been mitigating factors which was why there needed to be a conversation with Mr Hemmingson to put the allegations to him and for Mr Hemmingson to respond with an explanation for his behaviour. 196

She did not understand why Mr Hemmingson had sent technical information to his email address because he hadn’t been promoted. This was because, if Mr Hemmingson had needed to have the address list, he could have printed off a copy and taken that piece off it. 197

She agreed that Mr Hemmingson had said that he didn’t need the content and that he should have just taken the address list. Ms Renton said that Mr Hemmingson had not done that. 198

She agreed that Mr Hemmingson had acknowledged his wrongdoing and that he shouldn’t have sent the emails home. 199

She did not know whether Mr Hemmingson award or would not do it again. At the time, Ms Renton’s concern was that Mr Hemmingson had not provided a reason for why he had sent the emails home. The additional information/details that he gave in the Commission were not provided on 4 August 2016. 200

During the meeting, Mr Hemmingson had said that he felt bad about having behaved badly in a meeting with Mr McGrath and that he was sending information home to try and look at what his options were. Ms Renton said that she didn’t understand why he would need to send home technical specifications to do that. 201

If the organisation had been given the additional details by Mr Hemmingson at the time, NPA would have had to look at it. However, to be employed as a security printer and to have breached security, that was a real concern for the organisation. 202

In terms of Mr Hemmingson’s wife’s situation, Mr Hemmingson had mentioned that in an email around 9 August 2016. Ms Renton was not aware at the time that Mr McGrath and Mr Clarkson knew about Mr Hemmingson’s wife’s issues. Ms Renton thought that, knowing about that at the time, would not have changed her mind. 203

Mr Hemmingson’s situation was about sending detailed technical information to a personal email account compared with making stupid comments on an online forum which were not confidential (the Mr Hughes incident). Ms Renton stated that the difference between the two situations was the information concerned. 204

The comments made on the online forum were publicly available information where the information sent to Mr Hemmingson’s personal email address was about specifications which could assist in replication of the product. There was no risk to the product from the online comments made by Mr Hughes. Ms Renton did not know whether or not Mr Hemmingson had passed the information on to anyone. 205

Mr Hemmingson’s situation could not have been dealt with in the same way as that regarding Mr Hughes. To suggest that they could was due to a lack of understanding of the nature of the business. 206

Mr Clarkson

[11] It was Mr Clarkson’s evidence that:

He had a professional relationship with Mr Hemmingson. Mr Hemmingson had a difficult personality and he never saw everyone’s views. This had resulted in some conflict between them. 207

He had felt intimidated by the emails Mr Hemmingson had sent him, following his “Don’t talk to the animals” comment. Mr Clarkson recalled that he had sought advice about the emails from his superior. He had regretted what he had done so he sought advice as he wanted to apologise and work out how to deal with it. 208

The reason he was feeling threatened by the emails was because he was being threatened to do something which he felt he should not have to do. This was to email everyone. Mr Clarkson said that he was happy to apologise – and did so. 209

He was concerned by the threatening nature and tone of the email. The tone of the email was said to be blackmail. Mr Clarkson recalled that he was unsure what Mr Hemmingson would do physically but was more concerned at the tone of the email. 210

He was concerned about what was going to happen but did not know what was going to happen. 211 Mr Clarkson was worried that he had caused some issues and wanted to rectify them.212

The consequences of the email were the threat that, stress leave, we’ll go away. 213

He regretted making the statement. 214

He knew that Mr Hemmingson’s wife was having some legal issues with McDonald’s but not health issues. 215

Mr McGrath

[12] Mr McGrath gave evidence that:

Senior printer role

The position of process specialist was a legacy role and there were shop floor printers who were still carrying on that role. It was not a role in the print hall following the restructure. 216

A senior printer was rostered on like any other printer but was required to take the lead on the standard of work, process improvement and other process activities. 217

The impetus for the restructure he had introduced in July 2015 was explained. This coincided with the introduction of the new emboss process but there was no organisational structure around the new emboss process. 218 Mr McGrath also indicated that there was a recruitment process for leadership positions at that time but that Mr Hemmingson did not apply for any of those roles.219

He confirmed that, in mid 2016, Mr Hemmingson had asked for recognition in the senior printer role. Mr McGrath recalled his response to be that there was not a senior printer on that process. During the meeting on 11 July 2016, Mr Hemmingson seemed to be upset, agitated and emotional that he hadn’t been considered for a leading role on the emboss process. 220

He confirmed that, after the meeting, Mr Hemmingson had apologised for his conduct during the meeting. Mr McGrath stated that he had accepted the apology and that that was the end of that matter. 221 It was recalled that Mr Hemmingson had also told him that his wife was having a rough time. He would not have assumed that Mr Hemmingson meant that Mrs Hemmingson was experiencing health issues but he was not surprised to hear that. Mr McGrath confirmed that this was one of the reasons Mr Hemmingson had given for behaving the way that he did in the meeting. Mr McGrath agreed that he was aware that this was causing Mr Hemmingson some personal distress.222

He had formed an (his own) opinion that Mr Hemmingson was a bit of a complainer at times. When he had started in his role, his colleagues had not told him that Mr Hemmingson was a bit of a complainer. 223

He was happy to work with Mr Hemmingson who was a good printer. Mr McGrath had no personal conflict with Mr Hemmingson. 224

Animals comment

In terms of the animals comment by Mr Clarkson, he considered one of the emails sent by Mr Hemmingson to be intimidating. Mr McGrath thought that it was where Mr Hemmingson had asked Mr Clarkson to call himself an idiot and that that was an unreasonable request. The first email that Mr Hemmingson had sent was not intimidating to him. 225

He thought that Mr Clarkson had made an inappropriate comment and so Mr Clarkson had apologised and that was the end of the issue. 226

Mr Hemmingson and Mr Clarkson had clashed at times and then moved on but it was not a relationship problem as there wasn’t an issue with them working together. Mr McGrath agreed that this was typically what happened on the shop floor. 227

Mr Hughes incident

In relation to the incident with Mr Hughes, he was shown extracts of the documents. Mr McGrath’s feeling was that they did not contain confidential or commercially sensitive information. Mr McGrath was concerned that Mr Hughes had identified himself as an NPA employee. 228

In his mind, it wasn’t a technical breach of policy but a discretionary one. Mr McGrath explained that he felt that it was exposing Mr Hughes and that it was a step beyond what was appropriate. 229

He would never discuss things like the features of a banknote or when it might be released. This was because he inherently knew that it would be wrong to do that, in addition to being a breach of policy. 230

In terms of the incident with Mr Hughes, he said he would not have written on social media that he worked at NPA because it was inappropriate to do so. 231

He did not think it was sensitive saying how much the RBA spent on research groups. This was because he knew that Mr Hughes would not know the amount and he felt that the amount given was an arbitrary amount. 232

He was concerned about people finding out confidential information and a discussion by an employee on social media about the features generally. 233

It was inappropriate to discuss NPA’s clients on social media regardless of whether or not it was public information. Mr McGrath was concerned also about Mr Hughes describing the work of NPA (“helped with the NZ notes and Singaporean notes”). 234

He was not as concerned about Mr Hughes’ response to a question about whether he had seen the other denominations. Mr McGrath stated that he was concerned less about the “hookers” comment from a confidentiality perspective as it was more about confidentiality for him. 235

The comments of greatest concern were about client identity and the security of information. The identity of clients was commercially sensitive. 236

It was a joint decision between himself and Ms Renton to give Mr Hughes a warning and he was comfortable with that decision. A factor in his decision to only issue a warning was that the conduct itself was not that bad. 237

Emails sent by Mr Hemmingson to his personal email address/meeting on 4 August 2016

Regardless of the policies, Mr Hemmingson should have been aware of the confidentiality of material inside NPA. Mr McGrath explained that he was concerned about the breach of policy but also that an employee would share that information. He stated that his overriding concern was that information did not go outside NPA to any other party. 238

He confirmed that it was Ms Renton who had told him about the emails on 1 August 2016 and that there had been a serious breach of policy. Mr McGrath said that Ms Renton had never said to him at that time that dismissal was a consideration. 239

He confirmed that, at that time, he was not concerned that information had been leaked to third parties but that the policy had been breached. Mr McGrath indicated that he had not actually seen the emails at that point in time. He recalled that prior to the meeting with Mr Hemmingson and Mr Ball, he had read the three emails. As far as he was concerned, these were the emails on which the decision would be based. 240

He agreed that Ms Renton had asked him to arrange a meeting with Mr Hemmingson and that he had advised Mr Hemmingson of the meeting the day before Mr Hemmingson’s dismissal. It was denied that he had told Mr Hemmingson that he might lose his job but he agreed that he had told him that it was a serious breach of policy. It was recalled by Mr McGrath that Mr Hemmingson had asked him if his job was at risk. Mr McGrath confirmed that Mr Hemmingson had then gone home. 241

It was stated that, at that time, he was not concerned that Mr Hemmingson would send further information home. Although he did not have jurisdiction over this, he assumed that, if there was a serious risk of Mr Hemmingson doing it again, then it would make sense to block his email. Mr McGrath explained that it had not entered his mind to say to Ms Renton that Mr Hemmingson’s email should be blocked and he did not recall it being discussed between himself and Ms Renton. 242

At that point, he was concerned about the breach of policy in that information had been sent home by Mr Hemmingson rather than being concerned about Mr Hemmingson giving confidential information to others. 243

It was a joint decision between himself, Mr Bellis and Ms Renton ultimately to dismiss Mr Hemmingson. 244 The decision was made following a discussion with Mr Hemmingson and Mr Bull, his union representative. It was recalled that there was a break and then they had talked to Mr Hemmingson about the situation again.245

He was aware that technical advice had been sought in relation to the three emails. Mr McGrath stated that he did not actually talk to Mr McKee but it had been related to him that Mr McKee had said that the emails contained sensitive and confidential information. 246

He had determined himself that it was a serious breach of policy following reading the emails. Prior to reading the emails himself, he had trusted Ms Renton’s determination that serious breaches had occurred. 247

The purpose of the meeting on 4 August 2016 was to determine if there was an excuse for the breach. The meeting was part of the investigation - to hear Mr Hemmingson’s reasoning and so a determination had not been made. Mr McGrath explained that he did not think that there could have been an acceptable reason which would have resulted in a first warning. This was because the breach of the policy was quite clear. However, Mr McGrath stated that he didn’t have a determination to dismiss prior to the meeting. 248

He agreed that, going into the meeting, he was determining between either a first warning or a dismissal and that, in his mind, it could potentially be a first warning, depending on what Mr Hemmingson said. 249 Mr McGrath stated that he had gone into the meeting without the idea that Mr Hemmingson was definitely dismissed.250

He was not aware of any more detail other than Mr Hemmingson’s wife was having a rough time. 251

He did recall Mr Hemmingson’s explanation to include that he had missed out on the promotion to senior printer. 252 Mr McGrath agreed that, at that time, he was aware that Mr Hemmingson was upset that he had missed out on the senior printer role and that he had sent emails home so that he could mount a case for being called a senior printer.253 Mr McGrath did not recall Mr Bermudez being mentioned during any of the meetings. It was indicated that the general term process specialist was certainly talked about and Mr McGrath agreed that it made sense that Mr Bermudez was the process specialist that Mr Hemmingson wanted to show was not on the emails – and therefore that he was actually the senior guy on the process. Mr McGrath agreed that this was consistent with what Mr Hemmingson told him in the meeting.254

He had accepted that explanation when it was provided in the meeting. 255

At that point in time, he did not think that Mr Hemmingson had obtained the information so he could send it to a third-party. However, Mr McGrath did not agree that there was a very limited risk regarding the security of the information. This was because it was outside of NPA’s jurisdiction in a Hotmail account. 256

At the point in time when Mr Hemmingson was dismissed, he had not considered what the other risks could be. However, after the fact, he had considered the other potential risks. 257

If Mr Hemmingson’s explanation had been accepted and the information re-secured, there would have been no issue relating to the integrity of the information. 258

The reason that he and Ms Renton did not turn off Mr Hemmingson’s email account nor suspend him was that he had assumed that, after it had been brought to Mr Hemmingson’s attention, he would not immediately do it again. 259

He thought that it was a serious enough breach of policy to be a dismissable event. 260 Mr McGrath did not think that identifying oneself as an employee of NPA and talking about NPA’s clients in a public forum was a dismissible event.261

Mr McKee

[13] Mr McKee gave evidence that:

His involvement in Mr Hemmingson’s dismissal was as a technical expert – to determine whether there was sensitive information in some of the emails. 262

It would not be possible to derive the information contained in the first email (CM1) by measuring a banknote. If one had the right equipment, one could measure its height and thickness but one wouldn’t be able to derive from that, the specification to which it was printed in the first place. 263

In relation to the content of the second email, it was explained that it contained very specific information about how a particular feature had been developed, in a distinct way, compared with their competitors. The email was said to have disclosed the supplier of something particular and also the manner in which an input into the process was being used and a couple of other things. This was described as NPA’s IP in relation to a particular feature and it needed to be guarded to maintain NPA’s competitive advantage. 264

In the third email, questions were asked about measurements taken by the printers in relation to a security feature. The email was said to be of concern because it provided someone with a target as, although NPA’s targets and tolerances weren’t specified, there were a range of numbers in the email. It also provided information which would allow a counterfeiter to get the right instrument to calibrate their own printing to ensure that it matched what was in circulation. 265

He didn’t have any great issue working with Mr Hemmingson. They disagreed on some things and would say so but it was okay in the end. 266

His involvement in Mr Hemmingson’s dismissal was in a technical capacity - to determine whether there was sensitive information in some emails. 267

One of his concerns was that the information would get into the hands of third parties. Mr McKee stated that he was equally concerned about the information getting into competitors’ hands and also counterfeiters. 268

It was fair to say that, if the information that Mr Hemmingson had sent out of the business didn’t get into third parties’ hands, then it wasn’t an issue. 269

He accepted Mr Hemmingson’s contention that he had the information in the first email in his head. However, the issue was that the information was electronic and, as it had been sent via electronic means, it became hackable. Mr McKee explained that it then became available as it was no longer within the secure confines of NPA’s systems. 270

In terms of Mr Hughes’ comments on the online forum, he did not think they contained confidential information. 271

First of all, he was shown three emails. In terms of the first email, he agreed with Mr Hemmingson that, if one took a new note and had the right equipment, one could measure the heights. 272

Off the top of his head, he would not have had any concern that Mr Hemmingson was disseminating the information to third parties. 273

With respect to the second email, the sensitive information were the names of the suppliers. Mr McKee confirmed that Mr Hemmingson knew the names. 274

He agreed that the third email was a criticism of the process by Mr Hemmingson. 275

He was not aware on 4 August 2016 that Mr Hemmingson was dismissed. When he received an email from Ms Renton on 9 August 2016, he did not know that Mr Hemmingson had been dismissed. 276

His concern was that the information had left the company electronically and was therefore insecure and a lot more susceptible to hacking. Mr McKee said that, whether there was an intent to share the information or not, the fact that it had gone outside the building was a concern. 277

This was because the internal IT system was effectively impossible to hack as it was behind a firewall. A small hole was poked in the world to allow employees to communicate with the outside world through email and access to the Internet. Employees were said to be trusted to use that access within the organisation’s policies. 278

Mr McDowell

[14] Mr McDowell provided a Witness Statement 279 but was not required for cross examination.

[15] Mr McDowell’s written evidence explained the nature of the company’s business and the program of protection for NPA’s assets, products and information, including that of NPA’s customers. 280

[16] In relation to the incident concerning Mr Hughes and his social media posts, it was Mr McDowell’s evidence that:

The RBA made him aware of this discussion and he then informed Ms Renton and Mr McGrath. 281

He was aware that Ms Renton and Mr McGrath met with Mr Hughes and that Mr Hughes was counselled and cautioned about the conduct. The level of caution that Mr Hughes should receive was a matter for Mr McGrath and Ms Renton. He had agreed with their recommendation that Mr Hughes be issued with a first written warning. 282

Mr Hughes did not receive any preferential treatment as a result of his personal association with Mr McDowell’s family (Mr Hughes’ father attended school with Mr McDowell’s brother). 283

[17] With respect to the morning tea, held in April 2016, Mr McDowell set out the explanation that he had given to Mr Hemmingson following being asked as to why NPA allowed competitors to come into the building. 284 In terms of Mr Hemmingson’s second question regarding why NPA was seeking a print shift manager with no printing experience, Mr McDowell outlined the reasons for this decision. Mr McDowell also stated that he was not taken aback by Mr Hemmingson’s question.285

[18] Mr McDowell also gave evidence in relation to Mr Hemmingson’s dismissal. Mr McDowell stated that, prior to being appointed as acting CEO, he had invited staff to raise any issues they had directly with him. It was recalled that Mr Hemmingson had almost immediately taken up that offer and had approached him to raise an issue on behalf of one of his colleagues. Mr McDowell said that, after that, whenever he went to the print hall, he would go and say hello to Mr Hemmingson. 286

[19] It was indicated by Mr McDowell that, around 2 August 2016, Ms Renton came and told him that it had been discovered that Mr Hemmingson had sent a number of work-related emails to his personal email address, several of which contained confidential and commercially sensitive information. Ms Renton had advised that she would be commencing a disciplinary process the following day. 287

[20] Mr McDowell confirmed that Mr Hemmingson had passed him as Mr Hemmingson was leaving NPA on 3 August 2016. It was recalled by Mr McDowell that he was walking into the building and was speaking with someone when Mr Hemmingson asked to speak to me. It was recounted that he had asked Mr Hemmingson whether he wanted to speak now and he had said yes. Mr McDowell said that he may have hesitated for a moment while he thought about what he had on that morning before saying words to the effect of fine and come with me now. Mr McDowell had continued walking into the building. Mr Hemmingson had turned and had begun following him into the building but Mr Hemmingson had then stopped and called out words to the effect of ‘actually no don’t worry. I’ll catch you tomorrow’. 288

[21] It was recalled by Mr McDowell that, during the morning of 4 August 2016, Ms Renton and Mr McGrath came to speak with himself and Mr Bellis, Head of Operations. They were informed that Mr Hemmingson had been unable to provide any reasonable explanation for the sending of the emails to his personal address and that they viewed the sending of the emails as serious misconduct. Ms Renton and Mr McGrath had indicated that the appropriate outcome was Mr Hemmingson’s dismissal. Mr McDowell recounted that he had asked whether they were confident of that and the response was yes. Mr McDowell stated that he had then said that he was supportive of their decision. 289

[22] Mr McDowell recalled that at the end of the meeting with Mr Hemmingson, Ms Renton had come and said that Mr Hemmingson wanted to speak with him. It was stated by Mr McDowell that, as he supported the decision, he felt that he had nothing further to add. As he was due to leave the premises for a meeting, he said to Ms Renton to communicate that he was not available. 290

Considerations and conclusions

[23] Mr Hemmingson was dismissed on 4 August 2016 for sending confidential and sensitive technical information off-site and thereby seriously breaching the Code of Conduct (the Code), the Acceptable Use of Technology Policy (Technology Policy) and the Employee Intellectual Property and Confidentiality Deed (Employee Deed).

[24] It was not denied by Mr Hemmingson that, on 21 July 2016, he had sent 30 emails to his personal email address from his work email address. Three of those emails were considered by the NPA to contain sensitive technical information about product specifications. Ms Renton gave evidence that these three emails, because of their sensitive content, were “the start and finish of the reason for Mr Hemmingson’s dismissal”. 291 It was also stated by Ms Renton that the sending of the emails to Mr Hemmingson’s personal email address was the sole basis on which Mr Hemmingson had been dismissed. Mr Hemmingson’s previous disciplinary history had not been taken into account in making the decision to dismiss him.

[25] It was NPA’s contention that the first email contained sensitive information in relation to the height and thickness of a banknote. Mr Hemmingson disagreed that the email contained technical specifications. He argued that it was possible to derive the information in this email by measuring a banknote using the right equipment and that he had that information in his head. Mr McKee agreed with Mr Hemmingson’s contention that he had that information in his head. However, Mr McKee indicated that the information had been sent by electronic means which meant that it became susceptible to being hacked – unlike Mr Hemmingson’s head.

[26] In relation to the second email, it was Mr McKee’s evidence that it contained NPA’s intellectual property about a particular feature and about suppliers. It was stated that this IP needed to be guarded in order to maintain NPA’s competitive advantage. Mr Hemmingson argued thatthere were no names specified and that a counterfeiter could work out the measurements themselves. Mr McKee confirmed that Mr Hemmingson knew the names of the suppliers set out in the email.

[27] With respect to the third email, Mr McKee gave evidence that his concern about this email was that it provided a counterfeiter with a target, albeit not the actual specifications. Mr Hemmingson contended that the email did not contain the actual specifications. It was Mr McKee’s view that the content of the email would allow a counterfeiter with the right instrument to calibrate their printing so that it matched what was in circulation.

[28] Having considered Mr McKee’s evidence, together with Mr Hemmingson’s counterarguments, I am satisfied that the technical information in the three emails was not publicly available and was commercially and technically sensitive and confidential. On this basis, I therefore find that Mr Hemmingson did send emails, including emails containing sensitive confidential technical information, to his personal email address from his work email address.

[29] The reason given to the Commission by Mr Hemmingson for sending these emails to his personal email address was because he wanted to review being denied a senior printing role on the emboss machine and because of the discrimination he had faced over the past two - three years. It is noted that Mr Hemmingson did not indicate the alleged discrimination reason to the company during the dismissal meeting. It was also Mr Hemmingson’s evidence that he had not sent the emails to his personal email address for their technical or any other content. Rather, it was for the header (addressee) list.

[30] It was submitted on behalf of the Applicant, that Mr Hemmingson provided the Commission with consistent and clear reasoning as to why he sent the emails home, particularly the three technical emails. In addition, it was stated that Mr Hemmingson had provided clear and consistent evidence as to why he had not given greater detail during the disciplinary meeting. It was submitted that Mr Hemmingson’s intentions were a relevant consideration for the Commission, particularly as it was said to have been established that the Respondent did not have a zero tolerance approach. 292

[31] The Respondent contended that Mr Hemmingson’s evidence was entirely unconvincing and incoherent and did not go close to justifying a serious breach of security. It was stated that Mr Hemmingson’s explanation that he sent the first and second emails to himself in order to establish that another employee was not included in the sender list/wanted the header list was said to not stack up. 293 This was on the basis that there was no explanation provided as to why it was necessary to send the email to an external address in order to make those points. In addition, it was argued that Mr Hemmingson’s explanation with respect to the third email was not an explanation at all as the assertion that it was sent in order to document discrimination was described as a stretch.294

[32] Further, it was argued by the Respondent, that it was not until Mr Hemmingson was in the witness box that he offered the explanation that he was now asking the Commission to accept. It was stated that Mr Hemmingson’s evidence in the Commission differed markedly from the explanation that he had provided the company during the meeting on 4 August 2016 and also from the witness statement that he had filed. It was contended that the Commission should weigh the reliability of Mr Hemmingson’s evidence in that light. 295

[33] I have taken account of all of the evidence and submissions on this aspect of the matter. Mr Hemmingson’s explanation, for why he sent the emails from his work email address to his personal email address, is accepted. It was the evidence of a number of the Respondent’s witnesses (Ms Renton, Mr Clarkson and Mr McGrath) that they knew that Mr Hemmingson was quite upset about not getting a senior printer role on the emboss process. It was Mr McGrath’s evidence that Mr Hemmingson had early on put his hand up for such a role on the new process. This was despite Mr Hemmingson being aware that, as a result of a restructure in July 2015, the emboss process was not to have a senior printer position attached to it. Instead, leadership of this process was to lie with two process specialists. It was Mr Hemmingson’s contention that it was he and one of the two process specialists who were leading/had led this process. This was because the other process specialist (Mr Bermudez) apart from other things, was allegedly not rostered in a way whereby he could fulfil this role. So, from Mr Hemmingson’s perspective, it was himself and Mr Katis (a process specialist) who provided the leadership role on the emboss process.

[34] It is now necessary to consider whether, by sending the technically sensitive emails to his personal email address, Mr Hemmingson breached NPA’s policies. It was Ms Renton’s contention that Mr Hemmingson had seriously breached the Code, the Technology Policy and the Employee Deed.

[35] With respect to the Code of Conduct, it was stated that Mr Hemmingson had seriously breached Section 1(a) (Standard of Conduct) and Section 7(h) (Security) of the Code. Section 1 requires employees to abide by all NPA’s policies and procedures and safe work instructions. Section 7(h) states that NPA considers all breaches of security to be serious and this included unauthorised disclosure of classified information whether within or outside of NPA’s premises.

[36] In relation to the alleged breach of section 7(h) of the Code, Ms Renton gave evidence that she did not know whether Mr Hemmingson had disclosed the information contained in the three emails to anyone. It was also indicated by Ms Renton that she did not know if Mr Hemmingson had breached that section of the Code. There is no evidence before me that Mr Hemmingson disclosed the content of any of the emails. Therefore, it is not possible to find that Mr Hemmingson breached section 7(h) of the Code of Conduct.

[37] With respect to the Acceptable Use of Technology Policy, Ms Renton’s evidence was that Mr Hemmingson had breached section 2.1 (Unacceptable use); section 2.2 (Personal use); section 6.1 (General requirements); section 6.3 (Responsibilities and Obligations); section 6.7 (Business and personal use of email); section 6.8 (Business communications to occur on NPA email system only) and section 6.10 (Sensitive information).

[38] Section 2.1 of the Technology Policy sets out what is acceptable use of NPA’s Technology Infrastructure. This includes making information available for which NPA has an obligation to maintain confidentiality or the release of which would be in breach of any NPA policy (third dot point). As set out above, Ms Renton’s evidence was that she did not know whether Mr Hemmingson had disclosed the information to anyone. Ms Renton had also said that, at the time of the meeting on 4 August 2016, she had no reason to believe that Mr Hemmingson had disseminated the information to a third party.

[39] The third dot point of section 2.1 of the Technology Policy states that it is unacceptable (for an employee) to “make information available”. Ms Renton’s contention was that, by sending the emails to his personal email address, Mr Hemmingson had made the information available. It was Mr McKee’s evidence that, once the emails left the secure NPA IT environment, they were susceptible to being hacked. What Mr McKee seemed to be saying was that the emails, having been sent electronically from NPA’s secure system to Mr Hemmingson’s personal email account, had the potential to be hacked. In my view, the policy requires more direct action, on the part of the employee, than sending emails to a private email address (serious as this is). Therefore, I have not been persuaded that Mr Hemmingson breached the third dot point of section 2.1 of the Technology Policy.

[40] The last paragraph of section 2.1 requires employees to use the technology infrastructure in accordance with the duties and relevant NPA policies.

[41] Section 2.2 allows employees, to a limited extent, to use the technology infrastructure for personal purposes provided that the use complies with the Technology Policy.

[42] Section 6.1 deals with the general requirements for email and Internet use and it prohibits the unauthorised and improper use of email to protect confidential client and business data. It also requires the responsible use of email and in accordance with the policy.

[43] Sections 6.3 and 6.7 deal with personal use of email. They state, in essence, that employees are expected to respect and not abuse the privilege of personal email and Internet access.

[44] With respect to sections 6.8 and 6.10, it was common ground that Mr Hemmingson had breached both sections when he had sent the emails to his private email address. Section 6.8 specifically prohibits the sending of business documents and emails to personal email accounts on publicly available email systems. Section 6.10 sets out the requirements for the transmission of sensitive or confidential information.

[45] In terms of the Conditions of Employment, Ms Renton contended that Mr Hemmingson’s conduct was in breach of this document - 1.(c), (d) and (e). During her evidence, Ms Renton indicated that she did not know whether Mr Hemmingson had breached the confidentiality requirement (1.(c)). However, it was Ms Renton’s view that Mr Hemmingson had breached the requirements to faithfully and diligently serve NPA and to not act in conflict with NPA’s interests (1.(d) and (e)). It was argued by Mr Hemmingson that NPA had not established a breach of section 1.(d) and (e) as the Respondent had not established that Mr Hemmingson had acted against the interests of the Respondent.

[46] With regard to the Employee Deed of Intellectual Property and Confidentiality (Employee Deed), it was Ms Renton’s evidence that Mr Hemmingson had breached sections 2.1(a), (b) and (c). Ms Renton did not know whether or not Mr Hemmingson had breached section 3 of the Employee Deed. Sections 2.1(a) and (b), in effect, require the employee to treat as confidential all confidential information and to preserve the secrecy and confidentiality of confidential information and to prevent unauthorised persons from gaining access to confidential information. Section 2.1(c) stipulates that an employee will not publish or communicate confidential information or any documentation other than to other employees.

[93] It is understood from the evidence that the primary issue for the company was that sensitive and confidential technical information had been sent out of the NPA’s secure IT environment. However, by the company’s actions, it appears as if it there was no concern that the information that had been sent would fall into the hands of a third-party or that Mr Hemmingson would send further emails to his personal email address. It was Mr McKee’s evidence that, in addition to his concern that the information had left the company electronically and was therefore insecure, he was also concerned that the information would get into the hands of third parties (competitors or counterfeiters). It is noted that Mr McKee stated that the second email contained particular IP which differentiated NPA from its competitors and that the first and third emails provided information which would be of assistance to counterfeiters.

[94] Therefore, from a Commission perspective, it cannot be concluded that Mr Hemmingson’s breaches of the company’s policies were so serious as to warrant summary dismissal if Mr Hemmingson was left in a “work as usual” situation and it took just under two weeks for the company to make the decision that termination of Mr Hemmingson’s employment was the appropriate outcome. This is not to suggest that a proper investigation should not be undertaken. However, in this matter, the fact that the emails had been sent to Mr Hemmingson’s private email address were that - fact. What remained to be dealt with then was obtaining advice as to the sensitivity of the technical information and then having a meeting with Mr Hemmingson to put the allegations to him and to hear and consider his response. If Mr Hemmingson’s actions were so serious as to warrant summary dismissal, why was Mr Hemmingson left in his usual situation at work for 13 days and why did it take 13 days for Me Hemmingson to be dismissed?

[95] Therefore, on the basis of all of the above, on fine balance, Mr Hemmingson’s dismissal was harsh and unreasonable.

Remedy

[96] Section 390 of the Act sets out when the Fair Work Commission may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[97] With respect to the requirements of section 390, I am satisfied that Mr Hemmingson was protected from unfair dismissal at the time of his dismissal (section 390(1)(a)) and that he has been unfairly dismissed (section 390(1)(b)). Further, Mr Hemmingson has made an application under section 394 of the Act (section 390(2)).

[98] Section 390(3) states that the Commission must not order the payment of compensation unless two conditions have been met. The first condition is that the Commission is satisfied that reinstatement is inappropriate (section 390(3)(a)).

[99] Mr Hemmingson is strongly seeking the primary remedy of reinstatement. It was argued that Mr Hemmingson had maintained a strong working relationship with his colleagues and with the Respondent’s witnesses. It was recalled that Mr Hemmingson’s evidence also revealed a high regard for Mr McDowell and Ms Renton. Further, it was stated that Mr Hemmingson had admitted to sending the emails in question and had acknowledged his wrongdoing at the meeting on 4 August 2016. It was also submitted on behalf of Mr Hemmingson that the evidence from Mr Hemmingson and from the Respondent established that there was a sufficient level of trust, confidence and respect to make the relationship viable and productive. 326 The Applicant disagreed with the Respondent’s contention that Mr Hemmingson did not generally enjoy good relations with his co-workers and argued that there was no evidence to support the Respondent’s claim that Mr Hemmingson himself did not trust the working environment.327

[100] On the other hand, it was equally strongly argued by the Respondent that an order for reinstatement was inappropriate as the relationship of trust and confidence between the Respondent and Mr Hemmingson had been destroyed and that the damage done was irreparable. Further, it was contended that, given the nature of the Respondent’s business, trust and confidence in every employee was critical and that once confidence in an employee was lost, it was lost. In addition, the Respondent submitted that Mr Hemmingson did not generally enjoy good relations with other employees and that there was evidence of insubordination and conflict with his superiors. Mr Hemmingson was said to himself not trust the working environment as he was suspicious of the motives of others and had claimed to be the victim of discrimination. It was contended that the Commission could not be satisfied that there was any realistic prospect of a viable working relationship being re-established and so reinstatement should not be ordered. 328

[101] I have considered the evidence before me and the submissions of the parties. Taking into account all of the circumstances of this matter, I am satisfied that it would be inappropriate to reinstate Mr Hemmingson. I have not been persuaded that Mr Hemmingson did have good relationships with either his colleagues or with his manager. It was clear from the evidence that Mr Hemmingson’s relationship with his manager, Mr Clarkson, was not free from conflict. Further, as a result of conflict with another employee, Mr Micallef, Mr Hemmingson received a final warning on 8 April 2013. The final warning was extended for Mr Hemmingson’s contribution during an argument with another printer on 26 August 2013. It is acknowledged that, on the operations side, it was Mr McGrath’s evidence that he had no personal conflict with Mr Hemmingson. However, the other people who have been mentioned above as having had conflicts with Mr Hemmingson, also work in operations. It is also noted that Mr Hemmingson had not received any further warnings in the two year period prior to his dismissal. However, despite Mr Hemmingson seeking reinstatement for understandable reasons, it is my view that it is not appropriate to do so.

Compensation

[102] Section 390(3)(b) requires that the Fair Work Commission consider it appropriate, in all of the circumstances of the case, to order compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation is considered appropriate.

[103] Section 392(2) of the Act sets out the criteria for deciding the amount of compensation in all of the circumstances of the case. These criteria are:

“(2) In determining an amount for the purposes of an order under subsection (1), the FWC 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 the FWC considers relevant.”

[104] I will deal with each of the criteria in turn, guided by the Full Bench decision in Haigh v Bradken Resources Pty Ltd 329 (Haigh). In Haigh, the Full Bench also referred330 to the Full Bench decisions which have applied the approach in Sprigg v Paul Licensed Festival Supermarket331 (Sprigg). I respectfully adopt the approach taken in Haigh.

Section 392(2)(a) - effect on the viability of the employer’s enterprise

[105] There are no submissions before the Commission in relation to this section.

Section 392(2)(b) - Applicant’s length of service

[106] Mr Hemmingson commenced employment with the company on 16 June 2008. Mr Hemmingson’s length of service, therefore, is eight years.

Section 392(2)(c) - remuneration would have received

[107] The Applicant contended that, given the good relationships with his colleagues and his good performance as a printer, he would have remained employed with the Respondent for at least one year.

[108] It was argued by the Respondent that the likelihood was that, if Mr Hemmingson’s employment had not been terminated for serious misconduct, it would have been terminated for misconduct on five weeks’ notice.

[109] On the basis of the evidence before me, in all the circumstances of this matter, I have formed the view that, had Mr Hemmingson not been dismissed, it is likely that Mr Hemmingson’s employment would have continued for another seven months. For the purposes of the calculations, in accordance with the Sprigg principles, is it is determined that the remuneration that Mr Hemmingson would have received was seven months’ pay.

[110] The Commission does not seem to have any evidence before it in relation to Mr Hemmingson’s weekly pay. Therefore, it is not possible, at this stage, to calculate the amount that Mr Hemmingson would have earned during the seven month period of anticipated employment. Accordingly, the parties are requested to provide an agreed weekly rate of pay for Mr Hemmingson at the time of his dismissal.

Section 392(2)(d) - efforts to mitigate loss

[111] It was Mr Hemmingson’s evidence that, as at 5 December 2016, he had had one job lined up but that it had not gone ahead as he lived on the other side of town. Mr Hemmingson also said that he had a couple of current job applications on the go.

[112] In order to assess the efforts Mr Hemmingson has made to mitigate his loss, Mr Hemmingson is requested to advise as to whether he has obtained alternative employment, and if so, when. If none has been obtained, Mr Hemmingson is to provide evidence of what he has done to try and obtain other employment.

Section 392(2)(e) and (f) - remuneration earned and income reasonably likely to be earned

[113] At the time of the hearing in December 2016, Mr Hemmingson’s evidence was that he was unemployed. If that situation has changed, Mr Hemmingson is requested to provide documentary evidence as to how much he has earned since 6 December 2016 and the amount he anticipates that he will earn over the next month from the date of this decision (21 June 2017).

Section 392(2)(g) - other matters

[114] Neither party seems to have addressed this criterion in their written Closing Submissions. Either party is at liberty to file submissions in relation to section 392(2)(g) if they wish to do so.

Section 392 (3) - misconduct

[115] Section 392(3) of the Act requires that, if the Commission is satisfied that the person’s misconduct contributed to the employer’s decision to dismiss the person, the Commission must reduce the amount it would otherwise order.

[116] As the sole reason for Mr Hemmingson’s dismissal was misconduct, I propose to reduce the amount by 50%.

Contingencies

[117] As the anticipated period of employment (seven months) has passed, it is not proposed to make a deduction for contingencies.

Section 392(4) - shock or distress

[118] No part of the provisional compensation amount relates to any shock or distress suffered by Mr Hemmingson.

Section 393 - payment by instalments

[119] There are no submissions before the Commission requesting payment by instalments.

[120] In summary, the additional information that has been requested by the Commission is Mr Hemmingson’s agreed weekly rate of pay; documentary evidence in relation to Mr Hemmingson’s efforts to obtain alternate employment and, if alternative employment has been obtained, when it was obtained and the amount Mr Hemmingson has earned to date together with what is anticipated to be earned over the next month. As well, if the parties wish to, they are at liberty to file written submissions in relation to section 392(2)(g).

[121] This material is to be provided to the Commission and to the other party by Friday, 7 July 2017. A further decision, and an order, in regard to compensation, will be issued within two weeks of receipt of the requested information.

Appearances:

A Jewell of McDonald Murholme for the Applicant

J Forbes of Counsel for the Respondent

Hearing details:

2016.

Melbourne:

December 5, 9.

Final written submissions:

Applicant, 3 February 2017

Respondent, 24 February 2017

Applicant, 9 March 2017

1 PR588250

2 Transcript PN 110 and 114 - 116

3 Ibid PN 110 and 112

4 Ibid PN 112

5 Ibid PN 111 and 113

6 Ibid PN 124 - 125

7 Ibid PN 128

8 Ibid PN 143 - 144

9 Ibid PN 152 - 154

10 Ibid PN 157 - 158

11 Ibid PN 180 - 206

12 Ibid PN 211 - 219 and 734

13 Ibid PN 221

14 Ibid PN 226 - 227

15 Ibid PN 228 - 235 and 733

16 Ibid PN 244 - 246

17 Ibid PN 247 - 250

18 Ibid PN 263 - 267 and 326

19 Ibid PN 268 - 281

20 Ibid PN 282

21 Ibid PN 283 - 285

22 Ibid PN 287 - 290

23 Ibid PN 296 - 304

24 Ibid

25 Ibid PN 306 - 316

26 Ibid PN 317 - 321

27 Ibid PN 322 - 323

28 Ibid PN 324 - 325 and 328

29 Ibid PN 329 - 331

30 Ibid PN 342 and 986

31 Ibid PN 342 - 346, 348 and 358

32 Ibid PN 349 - 351

33 Ibid PN 352 - 356

34 Ibid PN 357

35 Ibid PN 359

36 Ibid PN 360 - 364

37 Ibid PN 365 and 999

38 Ibid PN 367 - 369

39 Ibid PN 370 - 373

40 Ibid PN 381 - 385, 544 - 545, 593 and 595 - 596

41 Ibid PN 388 - 395

42 Ibid PN 386 - 387 and 546

43 Ibid PN 404 - 421

44 Ibid PN 430 and 987 - 989

45 Ibid PN 422 - 428

46 Ibid PN 429 - 434

47 Ibid PN 435 - 439

48 Ibid PN 440 - 445

49 Ibid PN 446 - 450

50 Ibid PN 451 - 453

51 Ibid PN 454 - 456

52 Ibid PN 458 - 459

53 Ibid PN 460 - 463

54 Ibid PN 464 - 470

55 Ibid PN 471 - 479

56 Ibid PN 481 - 483

57 Ibid PN 487 - 494 and Exhibit A2 at paragraph 34

58 Ibid PN 495 - 512 and ibid at paragraph 36

59 Ibid PN 513 - 515 and 531

60 Ibid PN 517

61 Ibid PN 518 - 523 and 526

62 Ibid PN 538

63 Ibid PN 527 - 528

64 Ibid PN 529

65 Ibid PN 530 - 531, 534 and 995 - 997

66 Ibid PN 532 - 534

67 Ibid PN 535 - 537

68 Ibid PN 524 and 553 - 556

69 Ibid PN 557 - 560 and Exhibit R5 at Attachment DM5

70 Ibid PN 570 - 574, 594 and 597

71 Ibid PN 561 - 576, 586 - 587 and 600 and Exhibit R5 at Attachment DM6

72 Ibid PN 577 - 581

73 Ibid PN 599

74 Ibid PN 591 and 603

75 Ibid PN 604 - 612 and Exhibit A2 at paragraph 40

76 Ibid PN 613

77 Ibid PN 622 - 631 and Exhibit A2 at paragraph 41

78 Ibid PN 632 - 636 and 935

79 Ibid PN 637 - 640 and 935 and Exhibit A2 at paragraph 42

80 Ibid PN 645 - 658, 932 - 934 and 998 and ibid at paragraph 43

81 Ibid PN 664 - 670

82 Ibid PN 672 - 683, 723 - 724 and 729

83 Ibid PN 684 - 685 and 726

84 Ibid PN 688 - 695 and 722

85 Ibid PN 698 - 699 and 727 - 728

86 Ibid PN 705 - 710

87 Ibid PN 730

88 Ibid PN 730 - 732

89 Ibid PN 735 - 738 and 746

90 Ibid PN 739 - 743 and Exhibit R2 at Attachment VR13

91 Ibid PN 748 - 757 and Exhibit A2 at paragraph 45

92 Ibid PN 758 and 765

93 Ibid PN 759 - 764, 767 - 768 and 770 - 771 and Exhibit R2 at Attachment VR14

94 Ibid PN 788 - 970 and Exhibit A2 at paragraphs 48 - 49

95 Ibid PN 795 - 796, 804, 808 and 827

96 Ibid PN 805 and 814 - 816

97 Ibid PN 817 - 818

98 Ibid PN 819 - 826

99 Ibid PN 830 - 831 and 984 and Exhibit A2 at paragraph 50

100 Ibid PN 833 - 834

101 Ibid PN 841 - 843

102 Ibid PN 865

103 Ibid PN 867

104 Ibid PN 878

105 Ibid PN 879

106 Ibid PN 880

107 Ibid PN 881

108 Ibid PN 882

109 Ibid PN 883

110 Ibid PN 885 - 889

111 Ibid PN 890 - 891

112 Ibid PN 892 - 894

113 Ibid PN 895 - 913

114 Ibid PN 913 - 915

115 Ibid PN 920 - 923

116 Ibid PN 1003 - 1006

117 Ibid PN 936 - 937

118 Ibid PN 954

119 Ibid PN 1568 - 1569

120 Exhibit R3 paragraph 3

121 Ibid at paragraph 4

122 Ibid at paragraph 5 and Transcript PN 1570

123 Ibid at paragraph 5 and ibid PN 1571 - 1573

124 Ibid at paragraphs 5 and 8 and ibid PN 1574 - 1576

125 Transcript PN 1577

126 Ibid PN 1055 - 1056 and 1060 - 1061

127 Ibid PN 1073 and 1082

128 Ibid PN 1073 - 1079

129 Ibid PN 1081

130 Ibid PN 1083 - 1085

131 Ibid PN 1096 - 1103 and 1125

132 Ibid PN 1108 - 1109, 1121 and 1126

133 Ibid PN 1112 - 1114

134 Ibid PN 1116 - 1118

135 Ibid PN 1119

136 Ibid PN 1120

137 Ibid PN 1121 - 1127 and 1137

138 Ibid PN 1128 and 1134 - 1135

139 Ibid PN 1136

140 Ibid PN 1143

141 Ibid PN 1128 and 1134 - 1145

142 Ibid PN 1151 - 1158

143 Ibid PN 1157, 1166 and 1171 - 1175

144 Ibid PN 1159 - 1160

145 Ibid PN 1161 and 1164 - 1165

146 Ibid PN 1167 - 1169

147 Ibid PN 1176 - 1177 and 1187

148 Ibid PN 1179 - 1182 and 1186

149 Ibid PN 1182 - 1184

150 Ibid PN 1188 - 1198 and 1235

151 Ibid PN 1199 - 1202

152 Ibid PN 1206

153 Ibid PN 1208

154 Ibid PN 1228

155 Ibid PN 1236 - 1242

156 Ibid PN 1243 - 1245 and 1258

157 Ibid PN 1246 - 1251, 1256 - 1257 and 1264

158 Ibid PN 1260 - 1261

159 Ibid PN 1262 - 1263

160 Ibid PN 1272 - 1275

161 Ibid PN 1278 - 1280

162 Ibid PN 1281 - 1288

163 Ibid PN 1289 - 1292

164 Ibid PN 1293 - 1300

165 Ibid PN 1301 - 1302 and 1309

166 Ibid PN 1303 - 1308 and 1328 - 1333

167 Ibid PN 1333 and 1337 - 1338

168 Ibid PN 1313 - 1320

169 Ibid PN 1326 - 1327

170 Ibid PN 1340 - 1342

171 Ibid PN 1343 - 1352

172 Ibid PN 1354 - 1356

173 Ibid PN 1360 - 1362 and 1365

174 Ibid PN 1366 - 1367, 1381 - 1382 and 1423

175 Ibid PN 1370 - 1372

176 Ibid PN 1375 - 1377

177 Ibid PN 1385 - 1386 and 1407

178 Ibid PN 1387 - 1393

179 Ibid PN 1405 - 1410

180 Ibid PN 1411

181 Ibid PN 1412 - 1413, 1415 and 1420

182 Ibid PN 1419

183 Ibid PN 1414

184 Ibid PN 1421 - 1422, 1424 and 1434

185 Ibid PN 1425 - 1426

186 Ibid PN 1428

187 Ibid PN 1432 - 1433

188 Ibid PN 1439 - 1441 and 1444

189 Ibid PN 1442 - 1443 and 1520

190 Ibid PN 1447 - 1448

191 Ibid PN 1458 and 1460

192 Ibid PN 1450 - 1453

193 Ibid PN 1454 - 1457 and 1459

194 Ibid PN 1461

195 Ibid PN 1463

196 Ibid PN 1465

197 Ibid PN 1467 and 1470

198 Ibid PN 1471

199 Ibid PN 1472 - 1473

200 Ibid PN 1474 - 1477 and 1482

201 Ibid PN 1478 - 1480

202 Ibid PN 1484 and 1495

203 Ibid PN 1498 - 1503

204 Ibid PN 1504 - 1505

205 Ibid PN 1507 - 1510

206 Ibid PN 1512

207 Ibid PN 1611 - 1616

208 Ibid PN 1619 - 1624 and 1645 - 1647

209 Ibid PN 1625 - 1627 and 1666

210 Ibid PN 1628 - 1645

211 Ibid PN 1638 and 1648 - 1649

212 Ibid PN 1655

213 Ibid PN 1639 and 1650 - 1652

214 Ibid PN 1653 - 1654

215 Ibid PN 1658 - 1660

216 Ibid PN 1711

217 Ibid PN 1712

218 Ibid PN 1714 - 1717 and 1820 - 1823

219 Ibid PN 1972 - 1974

220 Ibid PN 1718 - 1719 and 1824 - 1835

221 Ibid PN 1836 - 1837

222 Ibid PN 1838 - 1843

223 Ibid PN 1726 - 1729

224 Ibid PN 1733 - 1735

225 Ibid PN 1743 - 1753

226 Ibid PN 1756

227 Ibid PN 1737 - 1740

228 Ibid PN 1757 - 1763

229 Ibid PN 1765 - 1767

230 Ibid PN 1773 - 1776

231 Ibid PN 1781 - 1783

232 Ibid PN 1784 - 1786

233 Ibid PN 1788 - 1790

234 Ibid PN 1791 - 1794, 1797 - 1798 and 1802 - 1803

235 Ibid PN 1800 - 1808

236 Ibid PN 1809 - 1811

237 Ibid PN 1813 - 1814 and 1817

238 Ibid PN 1844 - 1848

239 Ibid PN 1850 - 1858 and 1882 - 1884

240 Ibid PN 1858 - 1859 and 1888 - 1891

241 Ibid PN 1860 - 1863 and 1877 -1881

242 Ibid PN 1864 - 1868

243 Ibid PN 1869 - 1872

244 Ibid PN 1886 - 1887 and 1975

245 Ibid PN 1976

246 Ibid PN 1892 - 1894

247 Ibid PN 1895 - 1898

248 Ibid PN 1901 - 1903 and 1908

249 Ibid PN 1904 - 1906, 1909 and 1911 - 1912

250 Ibid PN 1910

251 Ibid PN 1913

252 Ibid PN 1915 - 1916

253 Ibid PN 1917

254 Ibid PN 1923 - 1927

255 Ibid PN 1928, 1941 and 1944 - 1945

256 Ibid PN 1930 - 1937 and 1943

257 Ibid PN 1946 - 1950

258 Ibid PN 1951

259 Ibid PN 1954

260 Ibid PN 1958

261 Ibid PN 1959 and 1961

262 Ibid PN 2027 - 2028 and 2030

263 Ibid PN 2007 and 2012

264 Ibid PN 2008 - 2010

265 Ibid PN 2014

266 Ibid PN 2020 - 2021

267 Ibid PN 2028 and 2030

268 Ibid PN 2031 - 2033

269 Ibid PN 2034 - 2035

270 Ibid PN 2037 - 2039

271 Ibid PN 2048 - 2057

272 Ibid PN 2059

273 Ibid PN 2061

274 Ibid PN 2062

275 Ibid PN 2063

276 Ibid PN 2071 - 2078

277 Ibid PN 2039 and 2087

278 Ibid PN 2087

279 Exhibit R7

280 Ibid at paragraphs 3 - 14

281 Ibid at paragraph 17

282 Ibid at paragraphs 19 - 20

283 Ibid at paragraph 21

284 Ibid at paragraphs 23 - 29

285 Ibid at paragraphs 30 - 33

286 Ibid at paragraphs 34 - 35

287 Ibid at paragraphs 36 - 37

288 Ibid at paragraph 38

289 Ibid at paragraph 40

290 Ibid at paragraph 41

291 Transcript PN 1460

292 Applicant’s Submissions in Reply, dated 9 March 2017, at paragraphs 24 - 25

293 Respondent’s Final Submissions, dated 24 February 2017, at paragraphs 99 - 101

294 Ibid at paragraph 103

295 Ibid at paragraphs 95 - 98 and 104 - 108

296 Transcript PN 2087

297 Exhibit A1 at paragraph 60

298 Ibid at paragraph 61

299 Applicant’s Final Submissions, dated 3 February 2017, at paragraph 40

300 Exhibit R1 at paragraphs 41 - 42 and Respondent’s Final Submissions, dated 24 February 2017, at paragraphs 85 - 89

301 Applicant’s Final Submissions, dated 3 February 2017, at paragraphs 41 - 42

302 Exhibit R1 at paragraphs 43 - 44 and Respondent’s Final Submissions, dated 24 February 2017, at paragraphs 91 - 94

303 Applicant’s Final Submissions, dated 3 February 2017, at paragraph 43, Exhibit R1 at paragraphs 48 - 49 and Respondent’s Final Submissions, dated 24 February 2017, at paragraph 116

304 Applicant’s Final Submissions, dated 3 February 2017, at paragraphs 44 - 45 and 49

305 Ibid at paragraphs 48 and 50

306 Ibid at paragraph 48

307 Ibid at paragraphs 51 - 52

308 Ibid at paragraphs 51 - 57

309 Ibid at paragraphs 57 - 63

310 Ibid at paragraph 64

311 Ibid at paragraphs 52 - 63

312 Ibid at paragraph 46

313 Ibid at paragraph 67

314 [2016] FWC 1472

315 Applicant’s Final Submissions, dated 3 February 2017, at paragraph 66

316 Ibid at paragraphs 69 - 72

317 Ibid at paragraph 73 and Exhibit A1 at paragraph 75

318 PR931440 and Respondent’s Final Submissions, dated 24 February 2017, at paragraphs 119 - 120

319 Respondent’s Final Submissions, dated 24 February 2017, at paragraphs 121 - 123

320 Ibid at paragraphs 124 - 126

321 Ibid at paragraph 127

322 Ibid at paragraph 128

323 Ibid at paragraph 129

324 Ibid at paragraphs 139 and 145

325 Ibid at paragraphs 141 - 144

326 Exhibit A1 at paragraph 78 and Applicant’s Final Submissions, dated 3 February 2017, at paragraphs 76 - 82

327 Applicant’s Submissions in reply, dated 9 March 2017, at paragraphs 36 - 38

328 Exhibit R1 at paragraph 53 - 55 and Respondent’s Final Submissions, dated 24 February 2017, at paragraphs 147 - 160

329 [2014] FWCFB 236

330 Ibid at paragraphs [10] – [12]

331 (1998) 88 IR 21

Printed by authority of the Commonwealth Government Printer

Ross Hemmingson v Note Printing Australia Limited

[2017] FWC 3063

21 JUNE 2017

DECISION