Stephen Wilton v Ronald McDonald House Charities VICTAS Ltd - [2023] FWC 2439

[2023] FWC 2439

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Stephen Wilton
v

Ronald McDonald House Charities VICTAS Ltd

(U2023/2234)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 21 SEPTEMBER 2023

Application for an unfair dismissal remedy – application dismissed

Mr Stephen Wilton has made an application to the Commission for an unfair dismissal remedy under s 394(1) of the Fair Work Act 2009 (Cth) (Act). Mr Wilton alleges he was unfairly dismissed from his employment with Ronald McDonald House Charities VICTAS Ltd. The respondent denies that Mr Wilton was unfairly dismissed.

For the reasons that follow, I have concluded that Mr Wilton’s dismissal was not unfair.

Initial matters

For the purposes of s 396 of the Act, it is not in dispute, and I am satisfied that the application was made within 21 days of the dismissal taking effect; Mr Wilton was protected from unfair dismissal within the meaning of s 382 of the Act; the Small Business Fair Dismissal Code did not apply to Mr Wilton’s dismissal; and the dismissal did not arise by way of redundancy and so it was not a case of genuine redundancy.

Context

Mr Wilton was employed by the respondent on 16 April 2018. From November 2020, Mr Wilton held the role of part time House Coordinator at the respondent’s Parkville House. For six months between March and August 2022, Mr Wilton performed the more senior role of Acting House Manager.[1] At the time of his dismissal on 3 March 2023, Mr Wilton had resumed his House Coordinator role and was performing it on a full-time basis. [2]

Mr Wilton reported to the respondent’s Executive Manager – Business Operations, Peter Papamihail and received day-to-day instruction and direction from (then) House Manager, Ms Scerri. Ms Scerri now holds the role of Head of Operations.

Mr Wilton’s employment was terminated for serious misconduct on 3 March 2023. The respondent relied upon five reasons for Mr Wilton’s dismissal, relating to Mr Wilton’s “behavioural conduct.”[3] These matters fundamentally concern Mr Wilton’s relationships with his colleagues and his manner of engaging with them.

While Mr Wilton was dismissed for serious misconduct, he was paid three weeks’ wages in lieu of notice of termination.

Mr Wilton’s application was the subject of a hearing before me on 28 June and 29 June 2023.[4] Mr Wilton gave evidence on his own behalf. Mr Wilton submitted statements from four persons,[5] in addition to a character reference from an employee of the respondent.[6] Those individuals did not attend the hearing, their statements were not the subject of cross examination and in the case of the character reference, the employee sought that it be retracted.[7] Consequentially, I decline to attribute any weight to those statements.

The respondent led evidence from Erin Splatt – Head of People & Culture, Business Partnering, Sally Scerri – Head of Operations, and Nicole Brown – Family Support Coordinator.

A significant amount of documentary evidence was filed by the parties in relation to this matter. Where this evidence raises material considerations, it is addressed in the analysis that follows.

Relevant background

Relationship with Ms Scerri

In his role as House Coordinator, Mr Wilton was subordinate in the hierarchy to Ms Scerri in her role as House Manager. Mr Wilton regarded his relationship with Ms Scerri to be “great,” notwithstanding a “heated debate” in or about late 2021 over the content of a family exit survey. It is not in dispute that Mr Wilton refused to follow a direction given by Ms Scerri because of the strong views he held over the issuance of the survey. Ms Scerri contends that Mr Wilton raised his voice, “stood over” Ms Scerri and was asked to leave the premises.[8] Mr Wilton said that he left the office and Ms Scerri “slammed her door angrily.”[9]

Between March and August 2022, Mr Wilton acted in Ms Scerri’s role of House Manager at Parkville. While Mr Wilton did not report directly to Ms Scerri during this period, Ms Scerri said that she supported Mr Wilton in the performance of his duties.[10] However, Mr Wilton gave an example of how he regarded Ms Scerri to be “interfering” with his duties as a House Manager, in relation to a rostering matter in August 2022. Mr Wilton was instructed by Ms Scerri to remove an employee from a shift at Parkville so as to accommodate a shift at the North Fitzroy House. Mr Wilton declined to make the rostering change on the basis that “I was the House Manager at this time and it was my responsibility to manage the rostering for Parkville.” Mr Wilton said that “it wasn’t my error” that an eight-hour rest period between shifts had not been accounted for. Mr Wilton said that “as a matter of principle,” the issue should be rectified by an employee at the North Fitzroy House.[11] Ms Scerri disagreed with Mr Wilton’s position, advised that there were confidential matters associated with the rostering change, and asked Mr Wilton not to speak directly to the identified employee about this issue. Ms Scerri said that while Mr Wilton may not agree with her decision, he needed to respect that she was making decisions in the respondent’s best interests.[12] Ms Scerri said that Mr Wilton was “angry,” and “continued to raise his voice.”[13] Mr Wilton said the conversation ended “tensely.”[14]

It is not in dispute that contrary to Ms Scerri’s request that he not discuss the matter with the relevant employee, Mr Wilton spoke to the employee about which shift she had been allocated first.[15] Shortly after, Ms Scerri called Mr Wilton and Mr Wilton said that he was feeling “quite frustrated” and advised Ms Scerri, “I am feeling quite angry about this so I don’t want to talk to you at the moment.” Mr Wilton said that his tone was calm, but Ms Scerri “ignored” his request and argued with Mr Wilton “telling me I shouldn’t have spoken to [the employee].” Mr Wilton said that he told Ms Scerri that she had “undermined him” and he “didn’t want to talk to her” while he was angry and ended the call. Mr Wilton said that “at the end of the day, I was the House Manager and Rostering for Parkville was my responsibility. [Ms Scerri] was interfering. She was not my direct line manager at this time either.”[16]

Ms Scerri said that contrary to the position advanced by Mr Wilton, he was “yelling down the phone.”[17] Mr Wilton said that he never raised his voice, but he did feel “angry.”[18]

Ms Scerri returned to the role of House Manager at Parkville approximately one month following this incident, at which time Mr Wilton’s secondment to that role concluded. Ms Scerri felt that Mr Wilton’s demeanour and respect for her had altered immensely since the secondment commenced.[19] Ms Scerri says that she was subjected to “aggressive and argumentative outbursts and intimidating tactics” which had a profound effect on her psychological well-being, and she feared that Mr Wilton’s aggression would “escalate.”[20] Ms Scerri said that she had never had “anyone bully or harass” her in the way she felt that Mr Wilton did.[21]

Ms Scerri said that there had been “continuing conversations” with Mr Wilton “regarding his tone and delivery of conversations,” which Mr Wilton “always disagreed with.” Ms Scerri said that she had been mindful about how to “word” conversations so as not to “trigger” Mr Wilton’s anger but felt she “should not receive constant backlash and criticism” when Mr Wilton disagreed with her.[22]

Relationship with Ms Brown

Ms Nicole Brown began performing the role of Family Support Coordinator in May or June 2022 while Mr Wilton was acting in the role of House Manager. Mr Wilton said that he had “no other choice” but to provide Ms Brown with training and ongoing support in order to allow Ms Brown the chance to find her feet in the role.[23]

By July or August 2022, Mr Wilton said that his relationship with Ms Brown had started to “wane.” Mr Wilton thought that Ms Brown “had a problem” with Mr Wilton’s authority as this was a different dynamic to the working relationship Mr Wilton held with Ms Brown when she was performing the role of casual After-Hours Family Liaison Officer.[24] However, Ms Brown said that when she stepped into the Family Support Coordinator role, Mr Wilton “thought his authority was being threatened.”[25]

Ms Brown is a single mother with a small child. It is not in dispute that Mr Wilton had accommodated requests by Ms Brown for roster changes to accommodate her childcare responsibilities.[26] However, Mr Wilton formed the view that shift changes had become “an expectation.” Mr Wilton subsequently declined to make a roster change requested by Ms Brown for operational reasons in or about July or August 2022.[27] Ms Brown said that she was upset by the way in which Mr Wilton delivered his response to her, which came across as “spiteful.” Mr Wilton said that Ms Brown reacted “rudely.”[28]

The matter was discussed at a subsequent 1:2:1 meeting Ms Brown attended with Mr Wilton. Ms Brown said that while it was agreed in the meeting to “draw a line in the sand and move on,” Mr Wilton’s “energy” changed at the end and it was clear to Ms Brown that he was “angry at me.” Ms Brown said that Mr Wilton “made it very, very clear to me that he was angry at me. He would slam – he was slamming the door where the safe is, I felt very, very uncomfortable, I wanted to go home, and I thought to myself – like, it makes me shake thinking about it now, I was just very, very unnerved by it.”[29] Ms Brown said that she felt “so frightened to be around” Mr Wilton.[30]

The following week, Ms Brown asked Mr Wilton whether he was still angry at her, to which Mr Wilton said, “yes.” Ms Brown replied, “do you want to talk about it?” and Mr Wilton said, “no.” Ms Brown said, “I can’t work like this,” to which Mr Wilton said, “good, go.” Ms Brown was upset, left the office and telephoned Ms Scerri to ask if she could work at the North Fitzroy House instead.[31]

Ms Brown said that Mr Wilton’s “volatile, hostile, aggressive and intimidating behaviour” left her feeling “extremely anxious, frightened and nervous,” caused her “mental distress” and lead to her “not wanting to go to work for fear of further similar encounters.” Ms Brown described Mr Wilton’s demeanour changing “dramatically” when he has an “outburst” and “he uses his body in a threatening manner as well as his voice, it is extremely intimidating and frightening.” Ms Brown said that she “did not feel safe at work” around Mr Wilton.[32] The matter was raised by Mr Wilton during cross-examination of Ms Brown. The full extent of that discussion is as follows:[33]

“… the incident where you felt that I was threatening, you said I stood up, and I just want to clarify, when I stood up, did I stand up right next to you?---You were opposite me. You stood up. You walked past, I walked - I was trying to walk with you and you were just - that's it. It was, yes, it was extremely uncomfortable. And you continued to do that behaviour for the rest of the afternoon.

All right. Did I stand over you in a way that you felt was physically threatening?---When you were in that - after that conversation, I found that whole afternoon around your presence to be physically threatening. Avoidance was my best option.”

Mr Wilton said that Ms Brown spent time performing “menial tasks” rather than supporting the team in the office.[34] Mr Wilton gave an example of Ms Brown dusting shelves instead of helping with front office duties. However, Ms Brown said that it had been a very quiet day with only one family checking into the Parkville House.[35]

Further, Mr Wilton said that on two occasions when he had requested that Ms Brown perform specific tasks, Ms Brown responded by stating to Mr Wilton, “why don’t you do it?”[36] I consider that these occasions caused Mr Wilton to feel that he was not respected by Ms Brown. Ms Brown said that Mr Wilton “flicked a lot of his work” to her, a lot of which was operational work which took Ms Brown away from her primary role.[37] Further, Ms Brown said that while she took directions from Mr Wilton, particularly on operational matters, sometimes she had to make decisions in her role as Family Support Coordinator, but she felt that Mr Wilton “wanted power over that.”[38]

Altercations with respondent’s contract cleaning company

During the period of Mr Wilton’s secondment to the role of House Manager, Mr Wilton says that he identified a discrepancy with invoices the respondent received from the respondent’s contracted cleaning company, A Cleaner World (ACW). Mr Wilton submits that this is something that Ms Scerri “never noticed when she was House Manager.” Mr Wilton said that he raised the issue with Mr Papamihail and Mr Wilton suspected that Ms Scerri “didn’t like that I had highlighted this as it showed a critical oversight on her behalf.”[39] Ms Scerri gave evidence that this did not give rise to any concerns on her part, and Mr Wilton was specifically asked to investigate the process for checking invoices.[40]

On 4 November 2022, Mr Wilton sought to secure additional cleaning services from ACW which Mr Wilton says ACW refused to provide.[41] Mr Wilton sent a text message to Mr Papamihail on 4 November 2022 advising that there was a “problem with ACW” and that there would be “no more room cleaning until the meeting on Monday effective immediately.”[42] Ms Scerri subsequently received a telephone call from an ACW representative and was advised that Mr Wilton’s manner of speaking to multiple representatives of ACW about the matter was “rude” and “aggressive” such that ACW refused to further perform cleaning services for the respondent. Ms Scerri said that she and Mr Papamihail had to step into “pacify” the situation and while the contractor agreed to recommence provision of its labour, damage to the relationship had been done.[43]

There is no direct evidence before the Commission as to the nature of any complaint ultimately made by representatives of ACW about this issue.[44] However, it is noted that Mr Wilton did not consider himself to have been “rude or unprofessional,” rather that he “was firm and honest.”[45]

Status of the House Coordinator role

Shortly after Mr Wilton’s return to the role of House Coordinator, the respondent announced in October 2022 that Ms Scerri’s House Manager role would manage both the Parkville and North Fitzroy Houses and she would split her time between each site.[46] Mr Wilton said that he saw this as a “gap in management.”[47]

Mr Wilton said that around this time, there was some “confusion” about whether the House Coordinator role was second in charge to the House Manager role or not. Mr Wilton said that he had been advised in November 2020 that it was a “2IC” role, but more recent documents indicated that Mr Wilton’s role was at the same level as Ms Brown’s Family Support Coordinator role, which Mr Wilton did not consider to be “fair or accurate” and contradicted Mr Wilton’s understanding of the position when he accepted the House Coordinator role.[48]

Ms Scerri said she did not understand why Mr Wilton raised repeated concerns with his status as a “2IC.” Mr Scerri said that across each of the respondent’s sites at Monash, North Fitzroy and Parkville, the role of House Coordinator and Family Support Coordinator sit at the same “tier.”[49] However, this did not affect Mr Wilton’s role as House Coordinator being second in charge to the House Manager.[50] Ms Scerri gave evidence that Mr Wilton constantly wanted clarification that he was at the top of the hierarchy from a House level in circumstances where she had never disputed that Mr Wilton was second in charge to the House Manager.[51]

1:2:1 meeting on 24 November 2022

Mr Wilton and Ms Scerri met for a 1:2:1 meeting on 24 November 2022. Having regard to the detailed notes produced by Ms Scerri and Mr Wilton, it is not in contest that the following key issues were discussed:[52]

(a)   Mr Wilton felt like Ms Scerri was taking power away from him.
(b)   Mr Wilton felt that Ms Scerri may not like being challenged by him.
(c)   Mr Wilton disagreed with Ms Scerri’s decision to delegate authority to Ms Brown to make decisions about families moving between sites. Mr Wilton said he had performed that role capably for years and he should retain it, or it should be shared between he and Ms Brown.
(d)   Mr Wilton considered that conflict arose between himself and other staff because “the chain of command” is not clear to other employees.
(e)   Mr Wilton wanted Ms Scerri to advise employees that he was “next in chain of command,” and to confirm that he should have the final say in relation to House decisions.
(f)    Ms Scerri’s notes record that Mr Wilton “strongly voiced that he feels I am incapable of doing this role across both sites and it is evident already and already am not doing the job well.” Mr Wilton says that he “didn’t think anyone in the role could adequately manage two houses” and that Ms Scerri didn’t have “visibility” over what is happening at the Parkville House day to day.
(g)   Mr Wilton said that he was “managing the House” in Ms Scerri’s absence, but clarified that what he “probably should have said is that I am trying to manage the house in her absence.”
(h)   Mr Wilton felt that he should have the final say and decision at the Parkville House.

Ms Scerri invited Mr Wilton to provide “clear examples” of his higher duties and occasions “where people have not listened to his instructions in order for us to work together to fix the situation.” Mr Wilton declined to do so and Ms Scerri’s notes state that Mr Wilton did not consider that he needed to provide that information to Ms Scerri.

While Ms Scerri had suggested pausing the meeting due to Mr Wilton’s voice “rising,” Mr Wilton said he spoke firmly and directly but did not yell. The meeting concluded with Ms Scerri feeling like it was a “personal attack” on her.

Mr Wilton said that his views were not a reflection of Ms Scerri’s competency but if he was not “enabled to support the House Manager by having some authority to lead the team, then it wouldn’t be sustainable for her (anyone) to manage both sites at the same time and that we would need a house manager at each house.”[53]

Ms Brown said that after this meeting, Mr Wilton returned to the office and appeared “red in the face” and “angry.” Ms Brown gave the following evidence as to her recollection of her conversation with Mr Wilton:[54]

…he sat down in the chair opposite me and he said, 'I think I've gone too far this time'. I'm like, 'What do you mean?' And he said that he'd told [Ms Scerri] that she shouldn't be in a managerial position, that she couldn't manage two sites, basically wasn't doing her job properly.”

Formal written warning

Mr Wilton attended a performance management meeting on 5 December 2022 to discuss his “recent behavioural conduct.”[55] Before the Commission is a written record of the meeting, which identifies that Ms Splatt and Mr Papamihail raised the following concerns with Mr Wilton:[56]

(a)   Mr Wilton had shared with Ms Scerri and Mr Papamihail that he was not enjoying work, is feeling anxious and proposed removing the “dealing with people” component of his role.
(b)   Mr Wilton had been actively looking for another role, but had decided to “stick it out.”
(c)   The respondent held concerns about Mr Wilton’s “mental health, behaviour and inconsistency with attitude” and therefore Mr Wilton’s “ability to perform the House Coordinator role per business requirements.”
(d)   Other employees had shared details of conversations with Mr Wilton regarding “his beliefs on his role hierarchy, he [sic] thoughts that he is being ‘pushed out’ and his sentiments that ‘he is not going anywhere and they will have to pay him a redundancy.’”
(e)   Mr Wilton’s relationship and interactions with the respondent’s contracted cleaning company, ACW which had not been “a standalone incident with regards to communication and tone.”
(f)    The respondent held concerns about Mr Wilton’s communication, tone and behaviour in the House towards other employees both in person and written communication.

(g) The respondent held concerns about Mr Wilton’s communication, tone, behaviour and respect towards Ms Scerri.

Mr Wilton provided a response to these concerns, both orally[57] and at a further meeting on 8 December 2022, and by email. The written response relevantly stated as follows:[58]

“Thank you for your time today. Below I have put into writing what I expressed to you in our meeting earlier:
I’ve heard your concerns and I am actively addressing them.
I want to be here.
I’m engaged.
I’m being productive and working hard to keep on top of everything and do what is expected of me.
I’m engaging positively with everyone including staff, volunteers and families.
I acknowledge that over the past few months, there have been some situations that triggered me to respond from a place of frustration or anger.
I can’t control others actions but I can control my reactions. If I feel unhappy or disagree with a decision or situation, I will just note it down for myself. I’ll let the small things go. If I feel that something is a problem that needs to be addressed, I will ensure that it is brought up in a way that is calm, respectful and professional.
Now I’m asking for a clean slate. I have received disciplinary action for the incidents over the past few months, I would like us to put this behind us and look forward. Give me a chance to show that I’ve heard the concerns and am responding.
I would also like to re-establish some mutual respect.”

During these proceedings, Mr Wilton said that he was “very careful” in his response not to take accountability for the alleged misconduct. For instance, Mr Wilton said that while he stated that he “heard” the respondent’s concerns, he did not agree with them. Mr Wilton said that his statement that he was “actively addressing” the concerns “just means I’m going to try and avoid getting into more trouble.”[59] Mr Wilton’s evidence in this respect calls into significant doubt the sincerity with which the sentiments in his 8 December 2022 response were given.

Mr Wilton was issued with a formal written warning by letter dated 13 December 2022. The letter relevantly stated as follows:[60]

“After considering the situation and your response it is expected that your behavioural conduct and role performance improves. Specifically, it is requested that you focus on cultivating and improving your internal and external stakeholder relationships, work on improving your communication and tone in professional settings and that you take the time to reflect on your behaviour at work through 121 meetings and reflection documentation.
This is your first formal warning letter. Your [sic] may be subject to further disciplinary action, including potential employment termination if your behavioural conduct and role performance does not improve by 9th January 2023. I propose that we meet again on 9^th January to review your progress, meeting request to follow.”

At a further meeting on 9 January 2023, Mr Wilton was advised that his behavioural improvement plan was to continue for a further six weeks.

Factual findings – formal written warning

It is not clear from the formal written warning itself which aspects of the concerns presented to Mr Wilton at the 5 December 2022 meeting[61] that the respondent found to be substantiated. Mr Wilton said that he understood that the warning was issued in relation to the following matters:[62]

(a)   the way Mr Wilton engaged with Ms Scerri at the 1:2:1 meeting on 24 November 2022;
(b)   Mr Wilton’s manner of engaging with Ms Brown in relation to her requests for roster changes and performance of duties;
(c)   Mr Wilton expressing that he felt unhappy and was attending work anxious; and
(d)   Mr Wilton’s conduct when engaging with the respondent’s contract cleaners, ACW.

I do not consider that the matter at [41](c) constitutes conduct that gives rise to the issuance of a warning. Further, I decline to make any findings in relation to [41](d) in the absence of direct evidence concerning any complaint made by ACW in relation to Mr Wilton’s conduct.

The evidence demonstrates, and I find, that Mr Wilton held a preoccupation with the “chain of command” at the Parkville House. This was also evident during the proceedings before me.[63] This resulted in Mr Wilton frequently seeking validation from Ms Scerri that he was her second-in-charge and that he held authority over other employees, in particular Ms Brown.

While Mr Wilton’s position is that he sought this validation in order to “manage the House” in Ms Scerri’s absence,[64] during the 1:2:1 meeting on 24 November 2022, Mr Wilton expressed the view that he was performing the role of House Manager at Parkville anyway. I do not accept Mr Wilton’s subsequent attempt during these proceedings to clarify this statement. Mr Wilton’s later expression as to what he “probably should have said” is not the sentiment expressed to Ms Scerri at the time of this meeting. It is apparent from both Mr Wilton and Ms Scerri’s notes that Mr Wilton wanted the team to be advised that he was “in charge.”

Mr Wilton suggests that his views about Ms Scerri’s performance were not representative of his reflection of Ms Scerri’s competency. The combined meeting notes reflect that Mr Wilton stated that he had been a successful House Manager during the period of his secondment. By comparison, Ms Scerri lacked “visibility” because she had commenced managing two Houses. Mr Wilton stated that if he was not given authority to lead the team, then it “wouldn’t be sustainable for her (anyone) to manage both sites at the same time.” I am satisfied that the meeting notes reveal a consistent point of contention between Mr Wilton and Ms Scerri whereby Ms Scerri felt “personally attacked” by Mr Wilton’s comments in relation to her capacity to manage two sites.

The meeting notes further reveal that Ms Scerri attempted to collaborate with Mr Wilton about his concerns by inviting examples from him about occasions where other employees had not listened to his instructions. However, Mr Wilton refused to share any examples on the basis that he did not consider that he needed to. I consider Mr Wilton’s refusal to share these examples with Ms Scerri significantly undermines Mr Wilton’s evidence that he was feeling “unsupported” and “unheard,” or that managerial duties were “filtering down” to him.[65]

Having regard to my findings, I accept Ms Brown’s evidence set out at [35] above that Mr Wilton left his 1:2:1 meeting with Ms Scerri and stated that words to the effect that he had told Ms Scerri that she should not be in a managerial position, that she could not manage two sites and was not doing her job properly. These sentiments are generally consistent with the notes produced by Mr Wilton and Ms Scerri about what was said in the meeting.

As to the concerns raised by the respondent about Mr Wilton’s communication, tone and behaviour towards Ms Brown, I decline to make a finding in relation to the roster change issue discussed at [19] above, there being insufficient evidence about the basis for Mr Wilton’s decision to decline that request.

However, I am satisfied and I find that Mr Wilton’s manner of engaging with Ms Brown following the 1:2:1 meeting to discuss the rostering change issue as explained at [20] to [22] above was hostile and intimidating. I accept Ms Brown’s unchallenged evidence that Mr Wilton was angry and slammed the door which made Ms Brown feel “unnerved” and “frightened.” Mr Wilton’s hostility towards Ms Brown in relation to this issue extended to the following week, demonstrated by the exchange set out at [21] above in which Mr Wilton said “good, go” to Ms Brown after she had enquired if he was “still angry” at her. I accept Ms Brown’s evidence that it led to her feeling anxious, frightened and nervous to being around Mr Wilton for fear of further similar encounters.

Having regard to the above findings, I am satisfied that Mr Wilton’s manner of engaging with Ms Scerri and Ms Brown in relation to the issues at [41](a) and (b) above justified the issuance of a warning.

Subsequently, on 26 February 2023, Mr Wilton challenged the respondent’s basis for issuing him with a warning in relation to “communication, tone and behaviour in the House towards other employees both in person and written communication.” Mr Wilton’s position was that the “exact details and examples of the concerns other employees have raised with my communication, tone or behaviour have never been outlined to me, and until they are, the legitimacy of this statement is in question.”[66] I consider Mr Wilton’s position in this respect to be partly accurate, there being no direct evidence before the Commission as to Mr Wilton’s communication, tone and behaviour towards employees other than Ms Scerri and Ms Brown. However, it is apparent from Mr Wilton’s evidence as summarised at [41] above that it was clear to Mr Wilton that the respondent held concerns about his behaviour towards Ms Brown. This matter clearly falls within the ambit of the respondent’s stated concern. Accordingly, I do not accept Mr Wilton’s contention that the legitimacy of that aspect of the warning is in question.

Factual findings – events leading to dismissal

The respondent contends that following the issuance of the warning, Mr Wilton demonstrated reluctance to complete behavioural reflections documents which were an agreed outcome of the disciplinary process, did not prepare and commit to 1:2:1 meetings put in place to mediate his relationship with Ms Scerri and other employees, and during this time, the respondent continued to receive statements from its employees about Mr Wilton’s ongoing “behavioural concerns.”[67]

Behavioural reflections

On 14 December 2022, Ms Splatt sent an email to Mr Wilton which outlined (a) an ongoing requirement that Mr Wilton fill in “the 121 template” in advance of his 1:2:1 meetings with Ms Scerri, and (b) effective Friday 16 December 2022, Mr Wilton was to complete a weekly behavioural reflection document which Mr Wilton was to send to Ms Splatt and Ms Scerri.[68]

It is not in dispute that Mr Wilton completed a behavioural reflection document on 16 December 2022 as required.[69] However, the next behavioural reflection was not produced by Mr Wilton until 9 February 2023.[70] In circumstances where an identified outcome of Mr Wilton’s warning letter was a requirement to produce to the respondent weekly behavioural reflection sheets, I do not consider Mr Wilton’s evidence that he did not produce such a document after 16 December 2022 simply because it was “a crazy busy period” at the Parkville House, with “everyone being on annual leave” to justify his conduct. Further, Mr Wilton’s “understanding” that this requirement would be picked back up again in the new year[71] is not borne out by any of the communications between Mr Wilton and Ms Splatt in relation to this matter. There is no evidence of Mr Wilton communicating his understanding to the respondent, or of the respondent extending the filing dates for the behavioural reflections documents. Even if the three-week period over Christmas and the New Year is discounted, Mr Wilton has not provided any explanation for his failure to produce a behavioural reflection document throughout January 2023.

On 2 February 2023, Ms Splatt sent an email to Mr Wilton and asked Mr Wilton to send her a behavioural reflection sheet “for this one just gone.”[72] There is no evidence of Mr Wilton complying with this request as there is no behavioural reflection document produced in relation to the week commencing 30 January 2023. Ms Splatt sent a follow up request to Mr Wilton by email on 8 February 2023 advising that she did not receive any response from Mr Wilton to her 2 February 2023 email and asking that Mr Wilton “get back to” her.[73] Mr Wilton has not provided an explanation for his failure to respond.

I am satisfied and I find that Mr Wilton’s failure to produce weekly behavioural reflection documents between 16 December 2022 and 9 February 2023 is inconsistent with the direction given to Mr Wilton by the respondent as an outcome of the disciplinary process which led to his formal written warning. It is also inconsistent with Ms Splatt’s direction on 2 February 2023.

Email to Family Liaison Officer

On 15 December 2022, following the date Mr Wilton received the warning letter, Ms Splatt was informed of an issue concerning Mr Wilton’s manner of communicating with a Family Liaison Officer in July 2022.

On 7 July 2022, during the period of his secondment to the role of House Manager, Mr Wilton emailed a Family Liaison Officer to advise her that while exceptions can be made, the respondent cannot allow a family to have two rooms as it is contrary to its policy. Mr Wilton instructed that exceptions can be made at his discretion. The Family Liaison Officer sought clarification in an email about whether she would call Mr Wilton in future and requested a copy of the policy. Mr Wilton advised that calls should be made to the On Call Manager in this situation and thanked her for clarifying.

The Family Liaison Officer sought further clarification and asked Mr Wilton, “so just confirming that another house manager might be making that decision on your behalf, is that correct? And sorry, would I be able to get the file location of that policy for my future reference? :)”

Mr Wilton responded by email, confirming that he will “have a look for the location of said policy” and then stated:[74]

“In the meantime, can you help me understand why you would like to see documentation stating that a family can only have one room while staying at Ronald McDonald House unless an exception is made by the House Manager?
Is it because:
A) You don’t believe the policy to be true?
B) You don’t agree with the policy?
C) You feel that you should be able to make exceptions to the policy on your own?
D) You need further clarification on the policy?
Thank you, I appreciate your feedback.”

The Family Liaison Officer brought Mr Wilton’s email to the attention of Ms Scerri, who suggested that Mr Wilton apologise to the employee, which Mr Wilton declined to do. Ms Scerri’s view was that Mr Wilton’s approach to the policy was “not correct,” that it was “not viable” for overnight staff to call the on call manager in such cases, and there was no need for Mr Wilton to send the initial email to the Family Liaison Officer in the first place.[75]

During the proceedings, Mr Wilton said that he now believes he “could have had a better response” and that his “response wasn’t appropriate” and the Family Liaison Officer “did deserve an apology.”[76] I find Mr Wilton’s email to the Family Liaison Officer to be unnecessarily abrupt and demeaning in response to an innocuous request for a copy of the policy that Mr Wilton was seeking to enforce.

Failure to share calendar

It is not in dispute that Mr Wilton was requested on four occasions to share his work Outlook calendar with Ms Scerri. Ms Scerri said that Mr Wilton continued to ignore her request, despite Ms Scerri explaining that it would help with planning, was consistent with her requests of other employees, and had become necessary for “visibility” as a consequence of the broadening of Ms Scerri’s House Manager role to include the North Fitzroy House.[77] Mr Wilton said that he had been asked “four times within about I think two days and I hadn’t got to it.” However, Ms Scerri said that her notes reflect that she asked Mr Wilton to share his calendar over a period of approximately two and a half weeks.[78]

Mr Wilton said that he sent an email to Ms Scerri saying words to the effect of, “I’m sorry, you know, this is not me just trying to be difficult, I am just really under the pump at the moment and it just wasn't a high priority of my things to do.”[79] Ms Scerri’s said this was the only response Mr Wilton provided to her four written requests.[80]

During a meeting on 15 February 2023, Ms Splatt showed Mr Wilton how to share his Outlook calendar.[81] Despite this step, Mr Wilton did not action this request at any time prior to his dismissal on 3 March 2023.

I am satisfied and I find that Mr Wilton’s failure to share his Outlook calendar with Ms Scerri is inconsistent with the direction given to Mr Wilton on at least four occasions by Ms Scerri and Ms Splatt. Mr Wilton has not provided an acceptable explanation for failing to comply with these directions. Mr Wilton’s view that it “just wasn’t a high priority” is not one shared by his employer, demonstrated by the fact that Mr Wilton was asked on multiple occasions to comply. I also do not accept that, having been shown how to share his calendar, that the task was so complex so as to justify Mr Wilton’s non-compliance, particularly in circumstances where Mr Wilton did not raise any concerns with the respondent about how the task was to be achieved.[82]

Lack of preparation and commitment to 1:2:1 meetings

The respondent contends that it was forced to reschedule a 1:2:1 meeting with Mr Wilton on three occasions due to Mr Wilton “not be adequately prepared” by failing to produce the 1:2:1 document in advance.[83]

Mr Wilton gave evidence that on one occasion following the issuance of warning, he had only “partially filled out the form and had intended to complete it during the meeting.”[84] Mr Wilton said that he sent an email to Ms Scerri asking that their 1:2:1 meeting “be just pushed out a bit so I had time to prepare.”[85]

The requirement that Mr Wilton complete “the 121 template” in advance of his 1:2:1 meetings was communicated by the respondent on 14 December 2022 (see [53] above). I accept that the meeting which ultimately proceeded on 15 February 2023 was rescheduled at least once on the uncontested evidence that Mr Wilton had not completed the relevant document in advance. However, there is insufficient material before the Commission regarding any subsequent changes to the meeting time, the basis for any further changes to the meeting, and any responses given by the respondent about altering the meeting time to make a finding. Specifically, it is not clear on the evidence whether any ongoing rescheduling of this meeting was occasioned by Mr Wilton’s lack of preparation and commitment or for other matters.

January 2023 meeting between Mr Wilton, Ms Scerri and Ms Brown

On 12 January 2023, Ms Scerri met with Mr Wilton and Ms Brown to discuss their manner of communicating with each other. Ms Scerri’s notes of this meeting are in evidence, together with Mr Wilton’s written responses to them.[86] In summary, Ms Brown said that she found Mr Wilton to be passive aggressive towards her. Mr Wilton said that he regarded Ms Brown as avoiding the office by frequently finding other duties to do. Mr Wilton said that he advised Ms Scerri that he did not want to talk about the issue, and he was feeling anxious. Ms Scerri said that he needed to talk about it and Mr Wilton said that he and Ms Scerri had their “own heated discussion” before Mr Wilton returned to the conversation with Ms Brown. Mr Wilton said:[87]

“I then return to the conversation with [Ms Brown] and as I start to talk [Ms Scerri] tells me not to yell when I wasn’t yelling, I tell her I’m not yelling, I continue talking and she yells STOP. It was alarmingly loud and the room was silent for a moment. I then said calmly I’m not yelling Sally.”

Ms Scerri said that the meeting was intended to be focussed on how Mr Wilton and Ms Brown could work together, but Mr Wilton referred to Ms Brown as “lazy” and said she “had no work ethic” which Ms Scerri considered to be unacceptable, personal and not constructive. Accordingly, Ms Scerri said she put her hand up and said “stop,”[88] although Mr Wilton said Ms Scerri “screamed ‘stop’.”[89]

I consider this meeting further at [160] below as part of my consideration of s 387(h).

Conduct concerns on 22 February 2023

It is not in dispute that on 22 February 2023, Mr Wilton was late to work by approximately 45 minutes. Mr Wilton contends that Ms Scerri had changed his rostered start time in the weeks prior from 9:30am to 8:45am and did not notify him of the change, although Ms Scerri says that the shift had been changed three weeks prior and Mr Wilton would have received a notification from the respondent’s rostering system, Tanda.[90] Mr Wilton received a text message from Ms Scerri at approximately 9:15am which read, “Hey Stephen. Just checking to see if you are far away?” Mr Wilton replied by stating words to the effect of, “I thought I started at 9:30am” and a further message stating, “Sorry, see you shortly.”[91]

Mr Wilton arrived at work at 9:30am and was seated at his desk when Ms Scerri arrived and asked Mr Wilton “what happened?” Mr Wilton said that the following took place:[92]

“I said I’m sorry for being late. I start to explain why this has happened. Sally cuts me off to say why it’s important to be on time and that it’s not ok to be showing up to work 45 minutes late. I said I understand, and I realise it is ultimately my responsibility to check my roster.
I tried to explain myself again. I felt that I had a reasonable excuse and that a reasonable person would be forgiving given the circumstances. This is not something that occurs often. I am rarely ever late.
As I try to explain, Sally cuts me off to say that I’ve known about this for weeks. I said I don’t check my Tanda because my roster is predictable and Sally says - Yes you do, I know you check Tanda because you send me messages when there are gaps in the roster. I said yes you’re right, I do check Tanda but I’m checking for who is working the overnight shift & who is working on the weekends, because I am responsible for sending them handover emails. I’m not actually looking at my own shifts.
Sally continues to talk over me and she is not listening to what I have to say. I feel like a kid at school being told off. She is dismissive of anything I have to say. It feels harsh and unreasonable.
I start to feel very anxious. (I do suffer from anxiety and work has contributed to this in the months prior). I decide no longer to engage as I feel I am being antagonised and patronised. I listen to her, and then simply respond with Ok. Then continue to listen and again respond with Ok, until she finishes telling me off and leaves.”

Mr Wilton’s late arrival is not a matter that the respondent relies upon for Mr Wilton’s dismissal.

Following this discussion, Mr Wilton left the Parkville House because he was “no longer in the right head space” to attend a 10:00am meeting with the respondent’s finance team. It is noted that the finance team had travelled from the Surrey Hills site to meet with Mr Wilton. Mr Wilton did not provide Ms Scerri with advance notice (in person or by telephone) of his intention to leave the workplace. Rather, Mr Wilton’s evidence is that he called Ms Scerri once he had departed, and told Ms Scerri that he had “just left.” Mr Wilton did not make any attempts to communicate with the colleagues with whom he was scheduled to meet and left the workplace despite being aware that the attendees had already arrived for the meeting.[93]

Mr Wilton does not contend that he was unwell and there is no evidence of him accessing personal/carer’s leave that day. Rather, Mr Wilton’s position is that “I had First Aid Training in the city from 12pm to 4pm that afternoon which I still attended, I just left the office 1.5 hours earlier than anticipated.”[94]

Mr Wilton said that he did not want to advise Ms Scerri of his decision to leave the workplace face to face “because she would likely tell me to stay and this might lead to an argument/disagreement in front of other staff or volunteers.” Mr Wilton’s position is that if he is frustrated, he prefers to “leave, get some space and not talk about the situation until he is calm.”[95] Accordingly, Mr Wilton left the workplace and telephoned Ms Scerri. Mr Wilton gave the following evidence about this discussion:[96]

“I call Sally and tell her I had just left and that I felt anxious and uncomfortable around her. I went on to say that I didn’t appreciate the way she approached me and that it felt like she was telling me off like I was a kid at school. I told her she was dismissive of everything I had to say and did not listen or allow me a chance to explain why I was late. I reiterated that I had apologised and acknowledged my responsibility to check my roster in Tanda, but that her reaction to this was unfair and over the top.”

Ms Scerri’s written evidence states that when Mr Wilton telephoned her, she was surprised to hear he had left the site because he had a 10:00am meeting with the finance team. Ms Scerri said, “I explained I needed to call him back, which he was not happy with and continued to yell at me over the phone.”

Ms Scerri said that she proceeded by advising the finance team that Mr Wilton had left the office unexpectedly. Ms Scerri then returned Mr Wilton’s call and gave the following evidence about that call:[97]

“I then rang Stephen back and again discussed that I was looking for him as I would normally do if another team member is running late. I explained my duty of care in this space. I explained it wasn’t specially the fact of running late, it was his attitude that he said he didn’t need to check Tanda himself and I would only reach out to a team member if I required them to work at a different site to what they normally would. He was not happy and continued to raise his voice, which I said to him not to yell at me and he told me not to throw that line at him, even though he continued to raise his voice. Stephen yelled to me that I am a trigger for him and I have caused his anxiety since my return back to the House in September. I mentioned nothing has changed in my approach, just that I am holding the entire team accountable for their actions which he didn’t like.”

Ms Scerri’s oral evidence during the proceedings was that she called Mr Wilton and said to him, “Listen, you can’t do that. You can’t just leave the site.” Ms Scerri said that Mr Wilton “started yelling and was becoming aggressive. I said to him, ‘'Please do not be aggressive and use that tone with me.' Obviously didn't agree with my choice of words of when I say to him, 'Don't use that tone with me', and he repeated – excuse my language – 'Don't you throw that in my fucking face'.” Mr Wilton subsequently hung up the phone.[98]

Ms Scerri said that she was “very rattled,” and felt like the continual “badgering” from Mr Wilton was relentless. Ms Scerri said that “I probably wanted to go home. I probably wanted to cry. I probably maybe wanted to resign even.”[99]

I am satisfied, and I find, that Mr Wilton’s departure from work was not authorised by the respondent. Mr Wilton’s suggestion that his departure might be justified on the basis that he “just” left the office 1.5 hours earlier than anticipated demonstrates a lack of respect for his colleagues who had travelled to meet with him that morning and a disregard for his fundamental responsibilities to his employer pursuant to his contract of employment. I do not accept that Mr Wilton’s unauthorised departure from work is justified by his broad contention that he was no longer in the right “head space” to attend the meeting and there is no medical evidence to support a conclusion that Mr Wilton was seeking to access personal leave entitlements at this time and nor was this contended. Rather, on Mr Wilton’s own evidence, he made a considered decision to leave the office. While Mr Wilton said that he felt “anxious and uncomfortable” around Ms Scerri,[100] there is no evidence that Ms Scerri was also attending the 10:00am finance meeting with Mr Wilton such as to preclude Mr Wilton from meeting his pre-arranged commitment. Irrespective of Ms Scerri’s later advice to Mr Wilton not to return to work after his First Aid Training,[101] I am satisfied, and I find, that Mr Wilton left the workplace “unannounced” and “abandoned a pre-booked internal stakeholder meeting,” with full knowledge of the travel undertaken by his internal stakeholders, as contended by the respondent.

The respondent further submits that after his departure from work, Mr Wilton engaged in “heated conversations” with Ms Scerri, during which Mr Wilton was “agitated, yelling and speaking in an aggressive tone.” The particulars relied upon by the respondent in support of this matter do not specify that Mr Wilton swore at Ms Scerri during either of the two telephone calls. Despite this, the respondent submits in these proceedings that Mr Wilton swore at Ms Scerri.[102]

Ms Scerri’s oral evidence was that Mr Wilton swore at her during the second telephone call on 22 February 2023 by stating “Don’t you throw that in my fucking face.” However, this statement does not appear in Ms Scerri’s witness statement.[103] Further, while Ms Scerri gave oral evidence that she believed she advised Ms Splatt of what was said to her by Mr Wilton,[104] Ms Splatt’s evidence is that she does not know what Mr Wilton said to Ms Scerri during this telephone call and in response to the question, “she [Ms Scerri] never mentioned it to you?” Ms Splatt said, “no.”[105] In these circumstances, I do not find the contention that Mr Wilton swore at Ms Scerri to be reliable on the evidence, and reject it.

I do not consider it to be in contest that Mr Wilton was “agitated” on each occasion that he spoke to Ms Scerri following his departure from work. On Mr Wilton’s evidence, his meeting with Ms Scerri had made him feel “anxious and uncomfortable around her.” I am satisfied that these feelings of anxiety and discomfort are consistent with a conclusion that Mr Wilton presented as agitated when he called Ms Scerri to advise her that he had left, and he remained in this state a short time later when Ms Scerri returned his call, and I so find.

Mr Wilton accepted that the telephone discussion with Ms Scerri “wasn’t good and [Mr Wilton] thought he could have handled that better.” However, Mr Wilton denied yelling, being threatening or swearing at Ms Scerri. Rather, Mr Wilton said that he was “stern.”[106] Mr Wilton further says that while he was frustrated at the event that had taken place, he expressed his feelings in a professional manner.[107]

For the reasons that follow, I prefer the evidence of Ms Scerri that Mr Wilton was “yelling” and “aggressive” during each of the two telephone calls that took place on 22 February 2023 after Mr Wilton left the workplace.

Firstly, Mr Wilton’s evidence and materials disclose that he had developed serious concerns with Ms Scerri’s management of him, in particular, her capacity to adequately perform the role of House Manager across the two sites, and supervise him at work. I find that this led Mr Wilton to regard Ms Scerri’s approach to discussing his late arrival at work to be objectionable or improper, which it was not.

Secondly, Ms Brown discovered Ms Scerri in an office “physically shaking” after the altercation with Mr Wilton. Further, Ms Brown said that Ms Scerri had been crying.[108] I accept Ms Brown’s evidence, it being consistent with Ms Scerri’s evidence that she was “very rattled,” wanted to go home or cry or even resign. I consider that Ms Scerri’s physical and emotional reaction to the telephone calls is not likely to have arisen from a discussion in which Mr Wilton expressed himself in a professional manner as he contends.

In light of these matters, I accept Ms Scerri’s contention that Mr Wilton was yelling and spoke in an aggressive tone to Ms Scerri during each of the two telephone calls that took place after Mr Wilton left the Parkville House on 22 February 2023.

Meeting with Mr Wilton on 23 February 2023

The following day, 23 February 2023, Mr Wilton met with the respondent’s Chief Executive Officer Mr Peter Bishop, and Ms Splatt in an informal meeting to discuss the events of the day prior. Mr Wilton’s notes of this meeting are in evidence.[109] Mr Wilton gave evidence that “they listened as I explained from my perspective what had happened.” Mr Wilton said that he felt as if Ms Scerri intentionally spoke to him in a way that is “antagonising or patronising” in order to get a reaction that can be used against him in a disciplinary process and/or to make Mr Wilton feel generally unhappy at work so that he might leave on his own accord.[110]

Mr Wilton said that the conversation turned to his role performance, with Ms Splatt affirming Mr Wilton’s view that his work quality is of a high standard. In response to a question from Mr Bishop about possible solutions to the issue, Mr Wilton said:[111]

“I made a couple of suggestions.
1. I could work from home at times when Sally is at the Parkville house to avoid potential conflict. (Full time employees are eligible to work from home on occasion and I had rarely exercised this).
2. I could work across sites a bit more, for example North Fitzroy, for the same reason. (Working across sites was something they were actively encouraging).”

Employee statements

The respondent relies upon two statements provided to it by employees regarding Mr Wilton following the issuance of the formal written warning:

(a) a statement of Ms Scerri dated 22 February 2023; and
(b) a statement of Ms Brown dated 28 February 2023.

Mr Wilton gave evidence that he did not believe that there were statements, but rather he considered that Ms Brown had “expressed concerns” about him to the respondent. Mr Wilton said that he was not provided with a copy of these statements, but he assumed they were related to “the things that happened between Nicole and I and Sally and I.”[112]

Ms Scerri’s 22 February 2023 statement addressed a series of matters which pre-dated Mr Wilton’s formal warning letter including the family exit survey discussed at [11] above, the rostering issue discussed from [12] above, and the 24 November 2022 1:2:1 meeting discussed from [31] above. The statement also set out Ms Scerri’s summary of the events of 22 February 2023 which are discussed from [73] above, the requests to share the Outlook calendar discussed from [63] above, and the rescheduling of the 15 February 2022 1:2:1 meeting discussed from [67] above. The statement concluded with Ms Scerri stating that she continues “to pivot and make accommodations” around Mr Wilton’s “triggers and work behaviours,” and that she did not feel she should be subjected to Mr Wilton’s “bullying behaviours should he not agree with a decision.”[113]

Ms Brown’s 28 February 2023 statement stated that Mr Wilton “fluctuates between extreme anger if he does not get his way, making the work environment extremely uncomfortable to the point that coming to work can make you feel sick.” The statement provided that Mr Wilton “often had angry outbursts at work, yelling and displaying intimidating physical behaviour.” Ms Brown said that “[i]t is of my opinion that he is unpredictable and not safe to have in our work environment.”[114] Mr Wilton provided a response to this statement in which he stated, inter alia, that it did not matter how measured his behaviour was, “all it takes is for [Ms Brown] to lie and she is believed.”[115]

Formal meeting request

On 24 February 2023, Mr Wilton was invited to a meeting to discuss his “recent and continued behavioural conduct.” The letter relevantly provided that the respondent would “share some additional concerns” and would be “a follow up on previous meetings.”

On 27 February 2023, Ms Splatt sent a letter to Mr Wilton titled “Direction to attend formal meeting.” The letter relevantly provided as follows:

“Specifically, since the first formal warning, the following matters have occurred which are described in summary form:
1.Recent meetings held with both Peter and Sally where you shared that you are not enjoying work, are coming to work anxious and you proposed ideally removing the “dealing with people” component of the House Coordinator role (which essentially involves daily stakeholder interactions from families, employees and volunteers).

Particulars

Recent concerns highlighted around conversations about wanting to work autonomously and away from site, not to deal with stakeholders
2.Concerns from an employment perspective about your mental health, behaviour and inconsistency with attitude – therefore ability to perform the House Coordinator role as per business requirements.

Particulars

highlighted recently by leaving site unannounced and abandoning a pre-booked internal stakeholder meeting; engaging in heated conversations with line manager –SW called SC offsite only after he has already left and was agitated, yelling and aggressive tone.
3.External relationship and interactions – feedback from suppliers (ACW) that this has not be a stand-alone incident with regards to communication and tone – poor representation of the RMHC brand and identity with external stakeholder.

Particulars

Recent comments from ACW pertaining to SW behaviour
4.Communication, tone, and behaviour in the House towards other employees both in person and written communication.

Particulars

Several terse emails regarding rosters, meeting times and preparation and work divisions, failure to share calendar despite 4 reasonable requests and training with HR on how to do this; several statements from employees outline concern to communication, tone and behaviour whilst at work

5. Communication, tone, behaviour and respect towards direct line manager.

Particulars

Several rescheduled 121 meeting due to lack of preparation, failure to submit behavioural reflects to line manager and HR, terse emails and failure to produce work as reasonably directed, several heated conversations including the most recent during employment abandonment”

Mr Wilton was advised that the meeting would proceed on 3 March 2023 with Mr Bishop and would be facilitated by Ms Jan Marsden from Standard Candle, an external human resources company. The letter stated that the meeting would provide Mr Wilton with an opportunity to respond to the above concerns, noting that an outcome may be further disciplinary action, up to and including the termination of his employment. Mr Wilton was stood down with pay pending completion of this process.

Disciplinary meeting on 3 March 2023

The 3 March 2023 disciplinary meeting was attended by Mr Wilton, Mr Bishop and Ms Marsden. The notes of the meeting are in evidence, which were prepared by Ms Marsden. The notes specify that they were taken contemporaneously during the meeting with further comments added upon review of the notes on 4 March 2023, being the date that the document was finalised and signed by Ms Marsden.[116]

The notes demonstrate that the following matters were relevantly discussed with Mr Wilton:[117]

(a)   Mr Wilton’s proposal to work from home to avoid conflict with Ms Scerri or work at other Houses.
(b)   The incident with Ms Scerri on 22 February 2023.
(c)   Mr Wilton’s relationship with representatives from ACW.
(d)   Mr Wilton’s refusal to share his work Outlook calendar.
(e)   The rescheduling of 1:2:1 meetings with Ms Scerri in January and February 2023.
(f)    Mr Wilton’s email to the Family Liaison Officer in July 2022.
(g)   Submission of the behavioural reflections.
(h)   The chain of command and the 1:2:1 meeting with Ms Scerri on 24 November 2022.
(i)     The rostering issue in August 2022.

The notes specify that Mr Bishop advised Mr Wilton that there was a “pattern” of Mr Wilton not following “reasonable directives” from management, although it is observed that Mr Bishop referred to an incident concerning a “mould report” which is not a matter raised during these proceedings.

The meeting notes specify that after nearly two hours, the meeting was adjourned to enable the respondent to consider Mr Wilton’s responses, which it did over the course of a period of approximately one hour. When the meeting was reconvened, Mr Bishop advised Mr Wilton that the respondent had determined that his employment was untenable and the respondent had made a decision to dismiss Mr Wilton for serious misconduct. The termination letter, provided to Mr Wilton by Mr Bishop upon the conclusion of the meeting, relevantly provides as follows:[118]

“We consider that your recent actions, as outlined in your Request for Formal Meeting constitutes serious misconduct warranting summary dismissal. Your recent behavioural conduct:
·is wilful or deliberate behaviour by you that is inconsistent with the continuation of your contract of employment.
·causes a serious and imminent risk to the health or safety of internal stakeholders such as employees, volunteers and families

·causes a serious and imminent risk to the reputation and brand of RMHC VIC & TAS…”

The reasons for the dismissal

The termination letter specifies that Mr Wilton’s “recent actions” as outlined in the “Request for Formal Meeting” constitutes “serious misconduct warranting summary dismissal.” The respondent confirmed that the reference to the “Request for Formal Meeting” is a reference to the 27 February 2023 letter titled “Direction to attend formal meeting” and the five reasons set out therein.

Ms Splatt gave evidence that the reasons for Mr Wilton’s dismissal bear similarity to the matters that informed the warning letter in order to “be explicit in the fact that we were still addressing the same five concerns.”[119]Accordingly, I proceed on the basis that the five matters listed at [99] above constitute the reasons relied upon by the respondent to dismiss Mr Wilton.

Was the dismissal harsh, unjust or unreasonable?

The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out in s 387 of the Act at paragraphs (a) to (h). My consideration of each is addressed in the analysis that follows.

Section 387(a) - Was there a valid reason for the dismissal related to capacity or conduct (including its effect on the safety and welfare of other employees?)

The principles that are relevant to the consideration of whether there was a valid reason for the dismissal related to an employee’s capacity or conduct are well established. A valid reason is one that is “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”[120]

The Commission does not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer.[121] The question the Commission must address is whether there is a valid reason, in the sense both that it was a good reason and a substantiated reason. A valid reason need not necessarily be the one relied upon by the employer.

Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated.[122] Nor is it necessary, for the purpose of establishing a valid reason, to demonstrate misconduct sufficiently serious to justify summary dismissal.[123] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination:[124]

“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities. However, as the High Court noted in Briginshaw v Briginshaw,[125] the nature of the relevant issue necessarily affects the “process by which reasonable satisfaction is attained.”[126] Such satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”[127] or “circumstances pointing with a wavering finger to an affirmative conclusion.”[128] The application of the Briginshaw standard means that the Commission should not lightly make a finding that an employee engaged in the misconduct alleged.[129]

I commence with a consideration of the first reason and the third reason for Mr Wilton’s dismissal before turning to consider reasons two, four and five.

The first reason – Mr Wilton not wanting to work autonomously and away from site

The first reason for Mr Wilton’s dismissal is said to be a continuation of the respondent’s concerns that Mr Wilton had attended work feeling anxious and had proposed removing the “dealing with people component of his role.” I have earlier found that this matter did not justify the issuance of a warning.

The particulars said to demonstrate the respondent’s ongoing concerns post-date the warning and provide that “recent concerns highlighted around conversations about wanting to work autonomously and away from site, not to deal with stakeholders.” It is apparent from the uncontested evidence at [93] above that these matters were raised by Mr Wilton in response to a question from Mr Bishop about possible solutions to Mr Wilton’s working relationship with Ms Scerri.

During the 3 March 2023 meeting, Mr Wilton provided a response to these particulars, relevantly stating as follows:

(a)   Mr Wilton had suggested, not demanded, to work from home due to the deterioration of his working relationship with Ms Scerri;
(b)   Mr Wilton did not consider that he should be reprimanded for asking a question about working from home (the reprimanding being a reference to the respondent’s reliance upon Mr Wilton’s request as a reason for his dismissal); and
(c)   Mr Wilton was happy to continue working with stakeholders, and interacting with staff and volunteers, and was just “throwing out ideas” regarding the prospect of changing the way in which the role of House Coordinator was performed.

The respondent’s submissions do not make clear why it regarded Mr Wilton’s proposals to constitute misconduct. Further, the response provided by Mr Wilton to these matters at the 3 March 2023 meeting makes it clear that Mr Wilton clarified the basis for his proposal to work from home, and withdrew the proposal to change the way in which the role is performed.

The first reason does not give rise to a valid reason for Mr Wilton’s dismissal.

The third reason – Mr Wilton’s behaviour when engaging with ACW

The third reason relied upon by the respondent for the dismissal relates to Mr Wilton’s “behaviour” when interacting with ACW. The respondent contends that Mr Wilton poorly represented its brand through the tone of his communication with ACW, which was not “a stand-alone incident.”

It is not in dispute[130] that Mr Wilton’s relationship and interaction with the respondent’s cleaning company, ACW, was (a) raised with Mr Wilton in the 29 November 2022 letter, (b) discussed with Mr Wilton during the 5 December 2022 meeting, and (c) one of the matters relied upon by the respondent when issuing the formal written warning. I have earlier declined to make findings in relation to this matter given the absence of direct evidence about it.

The particulars said to demonstrate the respondent’s ongoing concerns post-date the warning and refer to “[r]ecent comments from ACW pertaining to SW behaviour.” This differentiates this reason from the issue relied upon by the respondent for the warning. Accordingly, I proceed on the basis that the third reason for the dismissal does not seek to further address the same conduct that was the subject of the warning letter. Rather, the respondent relies upon “recent comments from ACW” that gave rise to an ongoing concern.

The material before the Commission discloses that Ms Scerri met with ACW on 22 February 2022.[131] During that meeting, a representative of ACW enquired as to the whereabouts of Mr Wilton and was advised by Ms Scerri that he was “on a day off.” The ACW representative stated, “I hope you are managing to reign him in a bit.” During this meeting, Ms Scerri was also advised that another representative of ACW “prefers not to directly converse” with Mr Wilton in light of the “heated discussions” they had previously had, and noting the view expressed that Mr Wilton is “rude and talks over him.”

During the hearing, Ms Splatt confirmed that there were no further issues arising with respect to Mr Wilton’s engagement with ACW following the issuance of the formal written warning.[132] I accept this evidence, it being consistent with the position that Mr Wilton was removed as a “conduit” between ACW and the respondent.[133] In these circumstances, the respondent has not established that Mr Wilton engaged in any further conduct concerning ACW or its representative such as to substantiate these alleged comments as a reason for his dismissal.

The third reason is not established on the evidence and does not give rise to a valid reason for Mr Wilton’s dismissal.

The second reason – Mr Wilton’s conduct on 22 February 2023

The second reason concerns Mr Wilton’s conduct on 22 February 2023 after arriving late to work. I have earlier found that Mr Wilton left workplace unannounced, abandoned a pre-booked internal stakeholder meeting, was agitated in subsequent telephone calls with Ms Scerri about his departure from the workplace, during which he yelled and spoke aggressively to Ms Scerri.

The facts that underpin this reason have been established. I address whether this reason constitutes a valid reason for Mr Wilton’s dismissal from [136] below.

The fourth reason – Mr Wilton’s communication, tone and behaviour towards colleagues

The fourth reason concerns Mr Wilton’s “communication, tone and behaviour,” both in person and in writing, towards his colleagues.

The particulars provided by the respondent in relation to this issue refer to “several terse emails” regarding rosters, meeting times and preparation and work divisions, Mr Wilton’s failure to share his work calendar despite being asked four times and being trained by human resources on how to do so, and “several” statements from employees setting out concerns regarding Mr Wilton’s “communication, tone and behaviour” at work. The respondent contends that these were new matters that arose after the issuance of the warning.[134]

I have earlier found that Mr Wilton failed to share his Outlook calendar, and this is inconsistent with the direction given to Mr Wilton on at least four occasions (see [66] above).

The specific emails relied upon by the respondent to support its contention that Mr Wilton sent “several terse emails” is unclear.[135] I have found Mr Wilton’s email to the Family Liaison Officer discussed from [57] above to be unnecessarily abrupt and demeaning. I accept the respondent’s contention that the email is “terse,” In the sense that they were abrupt and blunt, and carried a tone which made people feel demeaned.

To the extent that the respondent relies upon the “rostering gap” email from Mr Wilton to Ms Scerri,[136] or the “meeting times” emails from Mr Wilton to Ms Scerri[137] in support of this particular, its contention that these emails are “terse” is not established.[138] It is also not clear what is meant by “preparation and work divisions,” and I was not taken to any emails in evidence which are relied upon by the respondent in support of this particular.

The statements relied upon by the respondent in respect of this matter comprise of general opinions of Ms Scerri and Ms Brown and are summarised at [94] to [97] above. The matters raised in Ms Scerri’s statement were repeated in Ms Scerri’s evidence given for the purposes of these proceedings,[139] such that the earlier statement is not essential to my findings at [136] below. Further, I do not consider the matters raised by Ms Brown’s statement to be material to my consideration of whether there was a valid reason for the dismissal.

The fifth reason – Mr Wilton’s communication, behaviour and respect towards direct line manager

The fifth reason relied upon by the respondent for Mr Wilton’s dismissal concerns Mr Wilton’s communication, tone, behaviour and respect towards Ms Scerri. The particulars advanced by the respondent in relation to this reason refer to (a) several heated conversations including the most recent during employment abandonment, (b) terse emails, (c) failure to submit behavioural reflects to Ms Scerri and human resources, (d) failure to produce work as reasonably directed, and (e) several rescheduled 1:2:1 meetings due to Mr Wilton’s lack of preparation.
The matter identified at (a) is a reference to Mr Wilton’s conduct on 22 February 2023, which forms the basis for reason two addressed at [124] to [125] above. I have addressed the terse emails referred to at (b) at [130] above.

As to the matters at (c) and (d), I have found at [56] above that Mr Wilton’s failure to produce weekly behavioural reflection documents between 16 December 2022 and 9 February 2023 is inconsistent with the direction given to Mr Wilton by the respondent as an outcome of the disciplinary process which led to his formal written warning. It is also inconsistent with Ms Splatt’s direction on 2 February 2023. The respondent has not identified any other “work” that was not produced by Mr Wilton which is said to inform the particular at (d) above.

In relation to the rescheduled 1:2:1 meetings referred to at (e), I have concluded at [69] above that there is insufficient material before the Commission regarding the rescheduling of those meetings to make a finding about whether it was occasioned by Mr Wilton’s alleged lack of preparation and commitment.

Conclusion on valid reason

In relation to the five reasons relied upon by the respondent for Mr Wilton’s dismissal, I have found that the following matters in connection with the second reason, fourth reason and fifth reason have been established. In summary, the reasons are as follows:

(a)on 22 February 2023, Mr Wilton left the workplace unannounced, abandoned a pre-booked internal stakeholder meeting, was agitated in subsequent telephone calls with Ms Scerri about his departure from the workplace, during which he yelled and spoke aggressively to Ms Scerri;
(b)Mr Wilton failed to share his Outlook calendar, and this is inconsistent with the direction given to Mr Wilton on at least four occasions;
(c)Mr Wilton sent a “terse” email to the Family Liaison Officer and this came to light after the formal warning was issued; and
(d)Mr Wilton failed to produce weekly behavioural reflection documents between 16 December 2022 and 9 February 2023, which is inconsistent with the direction given to Mr Wilton by the respondent as an outcome of the disciplinary process which led to his formal written warning. It is also inconsistent with Ms Splatt’s direction on 2 February 2023.

In relation to each of the matters at [136], I find that Mr Wilton’s conduct was inconsistent with Mr Wilton’s commitment to maintain a respectful working environment pursuant to the Respectful Workplace Policy. Further, Mr Wilton’s conduct is at odds with the fundamental responsibilities Mr Wilton held pursuant to his contract of employment which included adhering to, complying with and working within the respondent’s Code of Conduct and Ethics (which was signed by Mr Wilton on 8 October 2020), conducting himself in a manner enabling the respondent to hold trust and confidence in him, complying with lawful and reasonable instructions issued by the respondent and not behaving in a manner that may damage the respondent’s reputation or good will.

I am satisfied that there was a valid reason for Mr Wilton’s dismissal within the meaning of s 387(a) of the Act. The valid reason arises from my findings in relation to the second reason, fourth reason and fifth reason which concern Mr Wilton’s workplace conduct including his compliance with lawful and reasonable directions given to him by the respondent. I am satisfied that these matters establish a sound, defensible and well-founded reason for Mr Wilton’s dismissal.

The relevance of Mr Wilton’s earlier conduct to a pattern of behaviour is addressed as part of my consideration at s 387(h).

Section 387(b) – Was Mr Wilton notified of the valid reason?

Section 387(b) requires the Commission to have regard to whether an employee was notified of that reason. Contextually, the reference to “that reason” is the valid reason(s) found to exist under s 387(a) of the Act.[140]

Notification of a valid reason for termination must be given to an employee before the decision is made to terminate their employment,[141] and in explicit[142] and plain and clear terms.[143]

I am satisfied and I find that the reasons for Mr Wilton’s dismissal were notified to him in the 27 February 2023 letter. The reasons for dismissal were again notified to Mr Wilton in the letter of termination on 3 March 2023 by reference to the 27 February 2023 letter after the parties met to discuss the concerns.

Section 387(c) – Was Mr Wilton given an opportunity to respond?

Section 387(c) is concerned with whether an employee was, in substance, afforded an opportunity to respond to the reasons for the dismissal.[144] An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[145] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[146]

I am satisfied that Mr Wilton was afforded an opportunity to respond to the reasons I have found to constitute a valid reason for his dismissal. The disciplinary meeting on 3 March 2023 proceeded over two hours. The notes of this meeting demonstrate that Mr Wilton addressed the events of 22 February 2023, his failure to share his Outlook calendar, the terse email to the Family Liaison Officer, and the failure to produce the weekly behavioural documents.[147]

Accordingly, I am satisfied, and I find that Mr Wilton was given an opportunity to respond to the specific conduct I have found to give rise to a valid reason for his dismissal. This opportunity was given before the decision to dismiss was made.

Section 387(d) – Was there any unreasonable refusal by the respondent to allow Mr Wilton to have a support person present to assist at any discissions related to the dismissal?

There was no unreasonable refusal to allow Mr Wilton to have a support person to assist in discussions about the dismissal. There was no request of this kind made by Mr Wilton that was denied by the respondent.[148]

Section 387(e) - If the dismissal related to unsatisfactory performance, was Mr Wilton warned about that unsatisfactory performance before the dismissal?

Mr Wilton was not dismissed for unsatisfactory performance. Rather, he was dismissed for misconduct.

Section 387(f) and s 387(g) – The degree to which the size of the respondent’s enterprise, and 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?

As found above, I do not consider there to be any issues of procedure in effecting the dismissal. Nevertheless, where an employer is of substantial size and has dedicated human resources personnel and access to legal advice, there will likely be no reason for it not to follow fair procedures.[149]

The respondent employed approximately 80 employees at the time of Mr Wilton’s dismissal,[150] and has a dedicated human resources department. Neither party submitted that the size of the respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the respondent’s enterprise had no such impact.

Accordingly, there are no matters to take into account when considering the procedures followed in effecting the dismissal for the purposes of s 387(f)-(g).

Section 387(h) - Any other matters that the Commission considers relevant

Section 387(h) provides the Commission with broad scope to consider any other relevant matters. The Commission should consider all the circumstances and weigh the gravity of Mr Wilton’s conduct against any matters that might support his contention that the dismissal was harsh, unjust or unreasonable.[151]

Pattern of behaviour

It is significant in my view that Mr Wilton’s conduct represents a continuation of the conduct concerns identified by the respondent and which formed the basis for the warning issued to Mr Wilton on 13 December 2022. Mr Wilton had been advised that the respondent expected his “behavioural conduct” would improve. Mr Wilton’s 8 December 2022 response provided a commitment to actively address the respondent’s concerns and acknowledged that there had been situations that “triggered” him to respond from a “place of frustration and anger” and that he would ensure that any matters moving forward would be raised in a calm, respectful and professional manner. Despite giving the respondent these assurances, Mr Wilton (a) departed from this position at the hearing (see [38] above), and (b) persisted in a pattern of inappropriate workplace behaviour. A pattern of past unacceptable behaviour, and the tolerance of that behaviour by the respondent, is a relevant consideration in the overall assessment of whether the dismissal was harsh, unjust or unreasonable.[152]

I have above accepted Ms Scerri’s evidence that the cumulative effect of Mr Wilton’s conduct affected Ms Scerri’s psychological well-being, taking into account her physical state after the 22 February 2023 altercation with Mr Wilton was such that she contemplated resigning. I have also above accepted above at [49] that Mr Wilton’s behaviour resulted in Ms Brown feeling anxious, frightened and nervous. I consider that Mr Wilton’s effect on Ms Scerri’s and Ms Brown’s wellbeing is relevant in determining whether the dismissal is harsh, unjust or unreasonable.

Proportionality

I have considered whether dismissal (in the present case, for misconduct) was a proportionate response to the conduct in question.[153]

The conduct I have found to give rise to a valid reason for Mr Wilton’s dismissal is to be considered in the light of Mr Wilton’s pattern of inappropriate workplace behaviour and the warning he received three months earlier for similar conduct concerns. Having regard to this context, I do not consider that dismissal was a disproportionate response to the gravity of the misconduct on which the respondent acted.

Further, while the respondent dismissed Mr Wilton for reasons it labelled as “serious misconduct,” it is to be noted that Mr Wilton was not summarily dismissed, but dismissed with a payment in lieu of notice.

Targeted, vilified and bullied out etc

Mr Wilton contends that:[154]

(a)   he was “bullied and harassed” by Ms Scerri and Ms Brown between August 2022 and the cessation of his employment;
(b)   he was “targeted” and “performance managed out” based on false accusations of serious behavioural misconduct;
(c)   Ms Splatt, Mr Papamihail and the Chief Executive Officer, Mr Bishop were “complicit” in his mistreatment by ignoring his concerns and failing to investigate;
(d)   Ms Scerri and Ms Brown exaggerated and lied about his behaviour in order to “vilify” him; and
(e)   Ms Scerri was “deliberately unreasonable” to “intentionally provoke an unfavourable response” that might be used against him.

There is no evidence before the Commission that Mr Wilton was bullied and harassed in his employment by Ms Scerri, Ms Brown, or that there is a “culture” of bullying and mistreatment within the respondent’s enterprise.[155] Nor do I accept that Ms Scerri or Ms Brown exaggerated and lied about Mr Wilton’s behaviour in circumstances where their evidence has been tested under oath and the subject of cross examination. I reject the contention that Ms Scerri deliberately provoked “an unfavourable response” from Mr Wilton.

The findings I have made in relation to Mr Wilton’s pattern of inappropriate workplace conduct are at odds with a conclusion that Mr Wilton was targeted for dismissal. On the contrary, the respondent went to significant effort through the warning process and thereafter to assist Mr Wilton to improve his workplace relationships and his manner of engaging with colleagues. The contention that Ms Splatt, Mr Papamihail and the Chief Executive Officer were “complicit” in Mr Wilton’s mistreatment or ignored his concerns is unsupported by the evidence and, as demonstrated by their respective efforts in each meeting with Mr Wilton on numerous occasions as set out in this decision, inaccurate.

Further, Mr Wilton’s contention that Ms Scerri tended to “side with” Ms Brown is not borne out on the evidence. The 12 January 2023 meeting addressed at [70] above makes it clear that Ms Scerri met with both Ms Brown and Mr Wilton about their “continued behaviour” and stated that they each need to “sort their issues out,” noting that there was a “lack of communication” between them on a daily basis.[156]

On 28 February 2023, Mr Wilton sent an email to Ms Splatt making a formal complaint against Ms Brown in light of a Christmas gift he had received from Ms Brown in December 2022 which comprised of phrases printed on cards that Mr Wilton found to be offensive and inappropriate.[157] Ms Splatt thanked Mr Wilton for bringing the matter to her attention and advised of the steps that would be taken consistent with the process in the Code of Conduct and Ethics and the Respectful Workplace Policy.[158] As is apparent, Mr Wilton’s employment was terminated three business days later on 3 March 2023. There is no evidence that would support a finding that the termination of Mr Wilton’s employment was responsive to his filing a complaint against Ms Brown, and nor is this contended. However, having regard to the timing of Mr Wilton’s complaint, there is no evidence before the Commission which discloses the outcome of this complaint.

Mr Wilton’s performance

The undisputed evidence is that the respondent had no issues with respect to Mr Wilton’s performance in the period of his employment. There is an absence of any disciplinary history prior to the events that lead to the warning. It is not in dispute that Mr Wilton was recognised by the respondent’s Chief Executive Officer at a Christmas dinner in December 2022 for his performance.[159] However, I do not accept Mr Wilton’s contention that being praised for performance while “simultaneously being reprimanded for alleged volatile, aggressive, intimidating and unprofessional behaviour” is contradictory or suggests that one or the other is untrue. Cases like Mr Wilton’s demonstrate why the Act draws a distinction between dismissals related to a person’s capacity (i.e performance) and conduct.

I accept Mr Wilton’s evidence that the last six months of his employment were difficult for him, but I do not accept the contention that he was mistreated by the respondent.[160]

Unsubstantiated matters

I have taken into account that the first reason, the third reason and aspects of the fourth reason relied upon for Mr Wilton’s dismissal were not established or did not give rise to a valid reason for Mr Wilton’s dismissal.

However, this of itself does not prevent a finding that the dismissal is not harsh, unjust or unreasonable in circumstances where a number of the reasons relied on by the respondent constitute “a” valid reason for Mr Wilton’s dismissal. Nevertheless, I have taken into consideration that the respondent was unable to establish some of the matters upon which it relied in the decision to dismiss Mr Wilton.

I have also taken into account Mr Wilton’s contention that the termination letter repeated matters which had been the subject of the warning. While the five reasons relied upon by the respondent for the dismissal are framed by reference to the same concerns as were set out in the warning letter, I accept Ms Splatt’s explanation for this matter set out at [106] above. I further note that in relation to the matters that I have found to constitute a valid reason for the dismissal, the particulars sufficiently differentiate those concerns by identifying issues which post-date the issuance of the warning.

Is the Commission satisfied that the dismissal was harsh, unjust or unreasonable?

I have made findings in relation to each matter specified in s 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[161]

Having considered each of the matters specified in s 387, taking into account all of the evidence and based on my factual findings, I am satisfied that the dismissal of Mr Wilton was not harsh, unjust or unreasonable.

Accordingly, I find that Mr Wilton has not been unfairly dismissed.

Mr Wilton’s application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Mr S Wilton on his own behalf
Ms E Splatt on behalf of the respondent

Hearing details:

2023.
Melbourne
28 and 29 June

[1] Exhibit 1 (Court Book) 44; Court Book 70

[2] Court Book 44; Court Book 70; Court Book 401

[3] Court Book 67-68

[4] Fair Work Act 2009 (Cth) s 399(1); Transcript of proceedings dated 28 June 2023 (Transcript day 1) at [19]-[24]

[5] Court Book 145-152, see also Court Book 153

[6] Court Book 161

[7] Transcript [888]-[891]

[8] Court Book 85; Court Book 442; Court Book 265; Court Book 427

[9] Court Book 85; Court Book 104-105

[10] Transcript of proceedings dated 29 June 2023 (Transcript day 2) at [1237]

[11] Court Book 107

[12] Court Book 265

[13] Ibid

[14] Court Book 88; Court Book 108

[15] Transcript day 2 at [1242]; Court Book 108

[16] Court Book 88-89; Court Book 108

[17] Transcript day 2 at [1248]

[18] Transcript day 1 at [243]

[19] Transcript day 2 at [1238]

[20] Court Book 427

[21] Transcript day 2 at [1037]

[22] Court Book 266

[23] Court Book 86-87

[24] Court Book 87-88

[25] Transcript day 2 at [1520]

[26] Transcript day 2 at [1512], [1572]; Exhibit A3 (screenshots of text messages)

[27] Court Book 87

[28] Court Book 111

[29] Transcript day 2 at [1512]

[30] Transcript day 2 at [1578]

[31] Transcript day 2 at [1512]

[32] Court Book 431

[33] Transcript day 2 at [1585]-[1586]

[34] Court Book 118

[35] Transcript day 2 at [1527]

[36] Court Book 90; Court Book 111-112

[37] Transcript day 2 at [1520]

[38] Transcript day 2 at [1491] and [1495]

[39] Court Book 86

[40] Transcript day 2 at [1042]-[1043]

[41] Court Book 109; Transcript day 2 at [1019]

[42] Exhibit A4 (text messages to in relation to ACW)

[43] Transcript day 2 at [1019]-[1021]

[44] Transcript day 1 at [175]

[45] Court Book 93

[46] Court Book 90

[47] Court Book 90

[48] Court Book 90

[49] Transcript day 2 at [1077]

[50] Transcript day 2 at [1093], [1124], [1136]-[1138], [1162] and [1180]-[1181]

[51] Transcript day 2 at [1174]

[52] Court Book 101-103, 369-370; Court Book 265; Court Book 527-529

[53] Court Book 294

[54] Transcript day 2 at [1507]

[55] Court Book 73

[56] Court Book 215-220; Court Book 389-392

[57] Court Book 387

[58] Court Book at 217-218

[59] Transcript day 1 at [268]-[294]

[60] Court Book 71-72

[61] Court Book 303

[62] Transcript day 1 at [172]-[179]

[63] See, eg, Transcript day 2 at [1139]

[64] See, Court Book 98

[65] Court Book 95

[66] Court Book 348

[67] Court Book 406 at [3]

[68] Court Book 577-578, 581-585; Transcript day 1 at [667]

[69] Court Book 521-522

[70] Court Book 523-524

[71] Transcript day 1 at [383]

[72] Court Book 551

[73] Transcript day 1 at [669]; Court Book 346

[74] Court Book 594

[75] Court Book 589

[76] Court Book 190

[77] Court Book 601, 267, 361, 430; Transcript day 2 at [1018], [1262]

[78] Transcript day 2 at [1017]

[79] Transcript day 1 at [377], [783]; Transcript day 2 at [1263]

[80] Transcript day 2 at [1017]

[81] Transcript day 1 at [671], [771]

[82] Transcript day 2 at [1264]

[83] Transcript day 1 at [670]

[84] Transcript day 1 at [387]-[389], [827]

[85] Transcript day 1 at [376]

[86] Court Book 141-143

[87] Court Book 96; Court Book 118

[88] Transcript day 2 at [1064]

[89] Transcript day 1 at [310]

[90] Court Book 266

[91] Court Book 26

[92] Court Book 27, Court Book 133-134

[93] Transcript day 1 at [323]

[94] Court Book 27

[95] Court Book 237

[96] Court Book 27

[97] Court Book 266

[98] Ibid

[99] Transcript day 2 at [1002]

[100] Court Book 27

[101] Court Book 266

[102] Court Book 406 at [4]

[103] Court Book 427-430

[104] Transcript day 2 at [1001]-[1002]

[105] Transcript day 1 at [851]-[852]

[106] Court Book 237

[107] Court Book 28

[108] Transcript day 2 at [1509]

[109] Court Book 133-136

[110] Court Book 29-30

[111] Court Book 30, Court Book 135

[112] Transcript day 1 at [384] and [386]

[113] Court Book 359-362

[114] Court Book 432, 515

[115] Court Book 139-140

[116] Court Book 242

[117] Court Book 234-242

[118] Court Book 67-68

[119] Transcript day 1 at [680]

[120] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

[121] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

[122] Hatwell and Another v Esso[2018] FWC 2398 at [76]

[123] Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; Gelagotis v Esso Australia Pty Ltd[2018] FWCFB 6092 at [116]

[124] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at [23]-[24]

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

[126] Ibid at 363

[127] Ibid per Dixon J at 362

[128] Ibid per Rich J at 350

[129] Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 per Dixon J at 216

[130] Transcript day 1 at [684]-[685]

[131] Court Book 636

[132] Ibid at [685]

[133] Transcript day 1 at [680]

[134] Transcript day 1 at [686]

[135] Transcript day 1 at [718]-[722], [782], [786], [787] and [793]

[136] Court Book 619

[137] Court Book 554-555

[138] Transcript at [722]

[139] Court Book 427-430

[141] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

[142] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)

[143] Ibid

[144] Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7; Central Queensland Services Pty Ltd v Tara Odgers[2020] FWCFB 304 at [42]; Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

[145] Bartlett v Ingleburn Bus Services Pty Ltd t/as Interline Bus Services[2020] FWCFB 6429 at [19] and [21]; Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at [75]

[146] Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7

[147] Court Book 237-239

[148] Court Book 234

[149] Jetstar v Meetson-Lemkes[2013] FWCFB 9075 at [68]

[150] Court Book 190

[151] B, C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191; 238 IR 1

[152] Toll Transport and Toll Priority v Joseph Johnpulle[2016] FWCFB 108 at [15]

[153] Gelagotis v Esso Australia Pty Ltd t/a Esso[2018] FWCFB 6092 at [117]; Owen Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [34]

[154] Court Book 99

[155] Court Book 28 at [4d]

[156] Court Book 141

[157] Court Book 130, Court Book 95

[158] Court Book 131-132

[159] Court Book 99

[160] Court Book 100

[161] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6]-[7]

Printed by authority of the Commonwealth Government Printer