[2018] FWC 69

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Travis Hodgson
v
Bendigo Kangan Institute
(U2017/9238)

DEPUTY PRESIDENT MASSON

MELBOURNE, 5 JANUARY 2018

Application for an unfair dismissal remedy.

[1] On the 24 August 2017, Mr Travis Hodgson (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Bendigo Kangan Institute (the Respondent).

[2] The application indicated that the date that the Applicant’s dismissal took effect was 4 August 2017.

[3] On 1 September 2017 the Respondent filed a response to the unfair dismissal application.

[4] On 19 September 2017 the unfair dismissal application was listed for conciliation before a Fair Work Commission Conciliator but remained unresolved at the end of the conciliation.

[5] Consequently the matter was listed for hearing.

[6] The Applicant filed written submissions and witness statements to the Fair Work Commission (the Commission) on 9 October 2017. The Respondent filed written submissions and witness statements in the Commission on 30 October 2017.

[7] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396 of the Act, I find that the Applicant’s application was lodged with the Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that the questions of the Small Business Fair Dismissal Code or genuine redundancy do not apply.

Conference or Hearing

[8] At the Directions Hearing the Commission sought submissions from the parties as to whether the Commission should conduct either a conference (s.398) or a hearing (s.399) in relation to the matter. Taking into account the number of witnesses and the parties wishes it was decided that a Determinative Conference would be the most effective and efficient way to resolve the matter.

[9] The matter was set down for a Determinative Conference before the Commission in Melbourne on 24 November 2017.

The Hearing

[10] At the hearing the Applicant was self-represented and gave evidence himself. He also led evidence from one other witness:

Ms Coralee Hayden-Long: Former employee of Bendigo Kangan Institute in which she was employed as Director of Construction and Industrial teaching group.

[11] At the hearing the Respondent was represented by Ms Dianne Armstrong – Employee Relations Specialist, and who gave evidence herself.

Background

[12] The Respondent is a major provider of TAFE and Vocational Skills Training and Qualifications, in Victoria. It is a Registered Training Organisation (RTO) and receives funding from the Department of Education - Higher Education and Skills Group for providing recognised courses and qualifications.

[13] The Applicant commenced employment with the Respondent on 10 September 2002 as a sessional Horticulture teacher. At the time of his dismissal the Applicant was engaged in the role of Manager Partnership Delivery having been appointed to that role on 23 March 2017. The Applicant was employed on a full-time basis based at the Essendon campus.

[14] The Applicant’s role was to assist teaching departments with the development and maintenance of their external partnerships, specifically the relationships between the Respondent and external training providers involved in the delivery of industry based training to students, for which qualifications from the Respondent would be attained. 1

[15] On 13 July 2017 the Victorian Independent Broad-based Anti-corruption Commission (IBAC) announced that it would be conducting public examinations relating to an investigation into certain matters involving alleged serious corrupt conduct. It was announced that the public examinations would commence on Tuesday, 27 June 2017 and continue until no later than Friday, 28 July 2017. 2

[16] The scope and purpose of the IBAC Operation Lansdowne examinations were as follows:

“Operation Lansdowne relates to allegations of serious corrupt conduct at the South West Institute of TAFE (South West TAFE), Bendigo Kangan Institute (Kangan) and V/Line Pty Ltd (V/Line). The investigation is considering whether persons associated with these public bodies have engaged in corrupt conduct to improperly benefit themselves or others.

The scope and purpose of the public examinations concerns investigations into the following:

• The circumstances surrounding the awarding of qualifications to Rebecca Taylor, Director of Taytell Pty Ltd (Taytell), by South West TAFE and Kangan, including whether current or former officers of South West TAFE or Kangan misused their position to award or interfere in the awarding of qualifications to Rebecca Taylor.

• The circumstances surrounding the negotiation, execution, implementation and management of Taytell’s third party training agreements with South West TAFE and Kangan.

• Whether Taytell, its officers or employees:

a. adversely affected the honest performance of the functions of any public officers or public bodies

b. intended to adversely affect the effective performance or exercise of the functions or powers of any public officers or public bodies

in relation to Taytell’s third party training agreements with South West TAFE and Kangan.

• The circumstances surrounding payments made to Taytell in connection with its third party training agreements with South West TAFE and Kangan.

• The sufficiency of, and compliance with, systems and controls relating to third party training agreements entered into by South West TAFE and Kangan.” 3

[17] On 30 May 2017 the Applicant was summonsed to give evidence to the IBAC inquiry.

[18] On 4 and 5 July 2017 the Applicant gave evidence to the IBAC inquiry under questioning from counsel assisting the Commission Mr Ian Hill. During cross-examination the Applicant made a number of admissions to the inquiry regarding an internal note prepared by the Applicant dated 16 April 2015 titled ZNX project (ZNX Note) 4. The admissions made during cross-examination by the Applicant indicated that statements made in the ZNX Note were false and misleading and the Applicant was unable to explain the reasons for that5.

[19] On 6 July 2017 the Respondent wrote to the Applicant advising him that it was suspending him from duties on full pay pending the conduct of an investigation into matters that arose from his IBAC testimony. The Respondent advised the Applicant that it had reason to believe that he may have engaged in conduct that, if established, was sufficiently serious as to warrant summary dismissal. The particulars of the alleged misconduct detailed in the correspondence to the Applicant were that:

“a) You failed to provide proper oversight to ensure that BKI processes and procedures were followed with respect to the agreements entered into with Taytell and Rebecca Taylor to provide training and assessment services to Jetstar students at Tullamarine.

b) Upon becoming aware in and after January 2015 of irregularities concerning the delivery of services to ZNX and Jetstar by Ms Taylor, you failed to take steps to investigate the irregularities.

c) On or about 16 April 2015 you wrote and sent an email to colleagues at BKI providing an overview of the relationship and delivery of services to ZNX and Jetstar by Miss Taylor, the contents of which you have admitted were false and misleading.” 6

[20] On 10 July 2017 the CEO of the Respondent, Mr Trevor Schwenke, sent an email to all staff advising them of the suspension of three staff members in relation to evidence before IBAC that suggested serious misconduct on the part of the suspended staff members. The staff members named in the email were the Applicant, Ms Hayden-Long and Ms Weavers. 7

[21] On 13 July 2017 the Respondent wrote to the Applicant detailing the next steps in the investigation of the alleged misconduct. In doing so the Respondent advised the Applicant that his suspension had been extended until 26 July 2017. Further, the Applicant was advised of the following:

“Secondly, I would like to meet with you on 24 July at 11.00am at Broadmeadows Directorate to discuss aspects of your testimony during the IBAC hearing, namely:

• your failure to verify whether actual training was delivered by R Taylor for Jetstar at Tullamarine;

• the deficiency of records on Taytell’s files;

• your dealings with the Taylors between December 2014 and September 2015 as evidence of irregularities emerged;

• the RPL process arranged for R Taylor; and

• the note you prepared and emailed to Andree Weavers and Coralee Hayden-Long on 16 April 2015.

You are able to bring a support person to the meeting. Please let me know the name of that support person prior to the meeting.” 8

[22] On 21 July 2017 Maurice Blackburn wrote to the Respondent advising that they acted on behalf of the Applicant in relation to his employment with the Respondent. Maurice Blackburn requested that the meeting scheduled for 24 July 2017 be postponed to allow an opportunity for them to obtain instructions from the Applicant. 9

[23] On 24 July 2017 Maurice Blackburn wrote to the Respondent enclosing a medical certificate for the Applicant which indicated that the Applicant was suffering from a medical condition that would prevent his participation in discussions with the Respondent. Maurice Blackburn requested that an opportunity to respond to the questions or allegations in writing be provided prior to any meeting. 10

[24] On 25 July 2017 the Respondent, via its legal representatives Holding Redlich, wrote to the Applicant’s legal representative Maurice Blackburn and in doing so enclosed a series of questions for the Applicant to respond to. Correspondence indicated that the Respondent was content to accept a response in writing from the Applicant provided it was received by close of business 28 July 2017. 11

[25] On 27 July 2017 Maurice Blackburn wrote to the Respondent’s legal representative, Holding Redlich, seeking further particulars in relation to the allegations made regarding the Applicant’s conduct. Further, they requested a copy of the Respondent’s Code of Conduct and Fraud and Corruption Control Policy. 12

[26] On 27 July 2017 Holding Redlich responded to Maurice Blackburn’s correspondence of 27 July 2017 and also enclosed a copy of the relevant policies as requested. 13

[27] On 28 July 2017 the Respondent wrote to the Applicant advising that it was content to accept a response in writing regarding aspects of the Applicant’s testimony during the IBAC inquiry subject to the response being received by the Respondent by the close of business 28 July 2017. It was confirmed that the suspension of the Applicant would be extended until 4 August 2017 to allow the Respondent time to review the response and to determine the next steps. 14

[28] On 3 August 2017 Maurice Blackburn wrote to Holding Redlich enclosing detailed responses from the Applicant in relation to the questions raised by the Respondent regarding the Applicant’s conduct and issues arising from the Applicant’s testimony to the IBAC inquiry. 15

[29] On 4 August 2017 the Respondent wrote to the Applicant advising of the outcome of the investigation into the Applicant’s alleged misconduct. The relevant findings of the investigation conducted by the Respondent were as follows:

“BKI has taken into account your written response submitted 3 August 2017.

BKI has concluded that your conduct in preparing the ZNX note and emailing it to Andree Weavers and Coralee Hayden-Long on 16 April 2015 provides sufficient grounds to dismiss you from your employment.

During the IBAC examination you admitted the note contained false and misleading information. BKI can readily infer from your conduct that the purpose for preparing the note was to exculpate you from responsibility for the wrongdoing of the Taylors in respect of the ZNX training.

Both during your IBAC examination and in your written response submitted 3 August 2017, you did not provide any evidence or explanation that might refute this inference.

This conduct is inconsistent with the obligations you owe BKI under your employment contract and BKI’s Code of Conduct & Fraud and Corruption Control Policy, namely that:

• you must always act with honesty and integrity in all aspects of your work for BKI

• you must report any unethical behaviour or wrong doing by another to the appropriate person

• you must maintain public trust by acting in the public interest

• you must engage in behaviours and conduct that support BKI’s values and behaviours, and

• you must not engage in fraud i.e. deliberate falsification of documents intended for use for a normal business purpose.

BKI considers this conduct amounts to gross misconduct justifying your summary dismissal.

However we have taken into account your employment history, length of service and personal circumstances and determined that your dismissal should be on notice. Payment will be made in lieu of your entitlement to 5 weeks of notice, such that your employment will end immediately.” 16

Case for the Applicant

[30] The Applicant submitted that the Respondent had been a victim of a sophisticated fraud perpetrated by Ms Rebecca Taylor (Principal of Taytell). The Applicant contended that he in turn was also a victim of that fraud. He expressed the belief that the Respondent was embarrassed about the fraud perpetrated on it by Taytell being publicly exposed. It (the Respondent) consequently chose to pin the blame for its fraud detection failures on one or more employees including him. This, in the Applicant’s submission, was done with a view to exculpate the Respondent from exposure of its structural management failures.

[31] The Applicant submitted that Rebecca Taylor approached the Respondent in mid-2014 with a proposal in relation to the delivery of engineering training involving Jetstar. The Applicant submitted that he initially assisted in the collation of various documents required for the contract including student enrolment forms and pre-training review documents. In his role he subsequently engaged in occasional conversations with Ms Taylor during 2014 and 2015 but had not been involved in the establishment of the contractual arrangements.

[32] The Applicant submitted that in December 2014 Ms Taylor informed the Respondent that South West TAFE had rescinded her Certificate IV in engineering, this qualification being a pre-requisite for delivery of training under the contract with the Respondent. In January 2015 two employees of a company called ZNX contacted the Respondent to enquire why the Respondent had mailed them results statements for completed units of competency. It was in this period that questions were starting to emerge in relation to the activities of Ms Taylor and Taytell.

[33] The Applicant submitted that the evidence that he gave to the IBAC inquiry on 4 and 5 July 2017 was true and correct in relation to all the facts that were in the Applicant’s knowledge at the time concerning the Respondent’s gradual awakening to the fraud of Ms Taylor. He submitted that when the Applicant’s team became aware of emerging irregularities in late 2014 and early 2015 relating to Taytell the Applicant became involved in attempting to uncover the facts.

[34] The Applicant submitted that at the IBAC hearing on 5 July 2017 he was shown the ZNX Note that he had apparently written in April 2015. The Applicant submitted that he answered truthfully in the affirmative at the IBAC hearing when asked if he agreed that the ZNX Note contained false and misleading information. He answered those questions on the basis of what he knew at the time but in hindsight believes that he should have made clear at the IBAC hearing that he had no recollection of having prepared the note. The Applicant submitted that when the note was prepared in April 2015 he did not have all of the relevant facts regarding the fraud perpetrated by Ms Taylor on the Respondent and that he and other members of his team were still assembling information at that point of time.

[35] It was submitted by the Applicant that the internal ZNX Note sent to the Applicant’s Manager on 16 April 2015 was relied on by the Respondent to infer that the Applicant had engaged in gross misconduct. The Applicant submitted that the note was sent the day before he proceeded on annual leave and that on the evidence of his then Manager, Ms Hayden-Long, he had prepared the ZNX Note at her request but in its preparation it was Ms Hayden-Long’s view that he had misunderstood the content that was required.

[36] The Applicant submitted that the Respondent’s conclusion that he had sought to deceive others through the preparation of the ZNX Note was not logical as the note was prepared for internal use only by his team which included himself, Ms Weavers and Ms Hayden-Long. Importantly, the Chief Commercial Officer Ms Townson was fully briefed on Taytell and both the Chief Operations Officer, Mr Whittaker, and the then CEO, Mr Sutherland, were also aware of the then known facts regarding Taytell.

[37] The Applicant submitted that his termination by the Respondent was harsh, unjust and unreasonable in that it had failed to take into account his stated lack of recollection of preparing the ZNX Note and that it had been open for the Respondent to infer an alternate explanation for the Applicant’s conduct.

[38] The Applicant submitted that the circulation of a briefing note to all of the Respondent’s staff at the time advising of his and other staff members’ suspension during the investigation of their conduct related to the Taytell contract attained extensive media reporting. As a consequence the Applicant’s reputation had been significantly damaged which made it difficult for him to pursue and secure alternate employment in the wake of his termination.

[39] In summary, the Applicant submitted that his termination was unfair and that while not seeking reinstatement an order of compensation was appropriate.

Case for the Respondent

[40] The Respondent submitted that the background to the termination of the Applicant was that of the IBAC investigation, known as Operation Lansdowne, into allegations of serious corrupt conduct at the South West TAFE, Bendigo Kangan Institute and V/Line Pty Ltd. The purpose of the IBAC investigation was to consider whether persons associated with these public bodies had engaged in corrupt conduct in their dealings with Taytell and its Principal, Ms Taylor.

[41] As part of the IBAC investigation the Applicant was summonsed to appear at IBAC hearings into the matter on 4 and 5 July 2017. During the course of his testimony the Applicant made admissions which evidenced misconduct on his part. Subsequent to that testimony the Respondent conducted an investigation and in doing so reviewed the IBAC hearing transcript, documentary evidence, the Applicant’s written response to specific matters raised with him and the Respondent’s policies and procedures.

[42] The Respondent submitted that the particular misconduct revealed through the Applicant’s testimony on 4 and 5 July 2017 was that of his preparation of a self-serving record (ZNX Note) of his and others’ dealings with Taytell and Ms Taylor in respect of ZNX. The Respondent submitted that the Applicant admitted under oath during the IBAC hearing that the ZNX Note included false and misleading information for which he could offer no explanation.

[43] The Respondent submitted that the Applicant sent the ZNX Note to colleagues Ms Weavers and Ms Hayden-Long on 16 April 2015, both of whom along with the Applicant, admitted under oath at the IBAC hearings that their actions and inactions failed to prevent fraudulent conduct by Ms Taylor.

[44] The Respondent further submitted that in writing and then sending the ZNX Note to Ms Weavers and Ms Hayden-Long on 16 April 2015 the Applicant was attempting to provide a version of events that all three employees could support in the event that the team’s dealings with Taytell and Ms Taylor came under scrutiny by the Respondent. Support for this inference could be found in an email dated 9 February 2015 17 from the Applicant to Ms Weavers and Ms Hayden-Long which the Respondent submitted strongly suggested the Applicant was motivated to create an alternate version of events.

[45] The Respondent submitted that despite numerous opportunities through: the IBAC hearings, the subsequent investigation by the Respondent and during the present proceedings, the Applicant had failed to offer an alternate explanation for the false and misleading content of the ZNX Note.

[46] In summary the Respondent submitted that the Applicant’s dismissal was not harsh, unjust or unreasonable but that if the Commission were to determine the contrary then any compensation awarded would need to be significantly discounted through the application of the Sprigg 18 principles, having particular regard to the Applicant’s misconduct.

Protection from Unfair Dismissal

[47] An order for reinstatement or compensation may only be issued where I am satisfied that the Applicant was protected from unfair dismissal at the time of the dismissal.

[48] Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: High income threshold indexed to $142,000 from 1 July 2017.”

[49] There is no dispute, and I am satisfied, that the Applicant has completed the minimum employment period, and is covered by a modern award. Consequently, I am satisfied the Applicant was protected from unfair dismissal.

[50] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the Act.

Was the dismissal unfair?

[51] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[52] In this case, there was no dispute and I am satisfied that the matter was confined to a determination of that element contained in s.385(b) of the Act, specifically, whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[53] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 19by McHugh and Gummow JJ as follows:

“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[54] I am under a duty to consider each of these criteria in reaching my conclusion. 20

[55] I will now consider each of the criteria at s.387 of the Act separately.

Was there a valid reason - s.387(a)

[56] I turn first to consider whether there was a valid reason related to the person’s capacity or conduct.

[57] The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal.²¹ The reasons should be “…sound, defensible and well founded”²² and should not be “…capricious, fanciful, spiteful or prejudiced.”²³

[58] Having been dismissed for misconduct, the Commission must first satisfy itself that, on the balance of probabilities that the alleged misconduct occurred.²⁴ In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct, without applying a standard of proof higher than the balance of probabilities.²⁵

[59] 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 matter 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.²⁶

[60] The termination of the Applicant arose from his preparation and forwarding of the ZNX Note to his colleagues in April 2015. The Applicant subsequently made admissions to an IBAC hearing in July 2017 in relation to the content of that note. The Respondent subsequently investigated matters raised in the Applicant’s testimony before the IBAC hearing. On completion of its investigation the Respondent concluded that the Applicant’s ZNX Note included false and misleading statements, which constituted gross misconduct justifying termination of employment.

[61] In order to establish whether there was a valid reason for the Applicant’s termination of employment it is necessary to examine the content of the ZNX Note, all relevant evidence going to its preparation, purpose and veracity. Also relevant to that consideration will be what knowledge existed on the part of the Applicant in relation to emerging concerns over Taytell and Ms Taylors conduct at the time of his writing the ZNX Note.

The ZNX Note

[62] The Applicant forwarded the ZNX Note dated 16 April 2015 to Ms Hayden-Long and Ms Weavers, both of whom the Applicant worked directly with. It is useful to provide the first four paragraphs of that note for reference purposes. The note states as follows:

“ZNX project

In July 2014 we were approached by Rebecca Taylor in regards to the delivery of a Six Sigma program aligned to a Certificate IV in Engineering. She stated that she had a large organisation wanting the program and a small group of students from the previous programme to complete her commitments with another organisation (ZNX). We then started our usual due diligence process for the engagement contract trainers [sic].

Rebecca provided her qualifications and a copy of the training and assessment resources for the program which were scrutinised by the teaching department responsible for the Certificate IV in Engineering. By mid August we had completed our engagement process and Rebecca was given Kangan Institute enrolment forms and Induction packs for students. In early September Enrolments began at the new major partner and the group from ZNX enrolled on the 2/09/2014.

Enrolments were processed as they were delivered by Rebecca and the ZNX enrolments did not have an email address as required by our enrolling process. There was some confusion with our administration team who thought the ZNX students were the other organisation and therefore entered the wrong email address on the enrolment form and our Student management System (SMS) (this was later adjusted on the SMS to reflect the ZNX email address).

The program progressed well and the feedback from the major partner was positive with staff working on projects as part of the program that were making measurable improvements to the organisation and staff KPIs. We were unable to send a Kangan staff member to visit the ZNX training as would be a normal part of our quality plan as it was late in the year and workloads were quite high. However, we had no bad feedback from our ZNX contact Nicola Spears.” 27

IBAC Testimony

[63] During the course of his witness testimony on 4 and 5 July 2017 at IBAC hearings the Applicant was questioned at length by Counsel assisting, Mr Ian Hill QC, in relation to a range of matters including:

• The Applicant’s knowledge and involvement with the establishment of the Taytell contract;

• The Applicant’s role in monitoring and administering the Taytell contract;

• The revocation of Ms Taylor’s training qualification by South West TAFE in December 2014;

• Emergent concerns in late 2014/early 2015 regarding the conduct of Taytell and Ms Taylor;

• ZNX enrolments and training delivery;

• The Applicant’s preparation of the ZNX Note; and

• The funding and financial arrangements surrounding the Taytell contract.

[64] The Applicant gave the following relevant evidence during the IBAC hearing on 4 July 2017: 28

• The Respondent was approached by Ms Rebecca Taylor with a partnership opportunity in July 2014. The proposal involved the delivery of Certificate IV in Engineering based on Lean Six Sigma training programs to Jetstar ground staff.

• The Applicant was not involved in the establishment of the contract between the Respondent and Taytell for the training.

• The Applicant’s role at the time of the Taytell contract establishment was that of a contracts and compliance consultant. At that time the Applicant had a number of partnership relationships for which he was responsible.

• The compliance role of the Applicant in relation to the Jetstar contract with Taytell was confined to that of providing documentation that Taytell would need for the enrolment and induction of students.

• Following commencement of the training at Jetstar by Taytell neither the Applicant nor any other staff of the Respondent undertook site visits to verify the quality of the training facilities and training delivery, while acknowledging that ideally such visits should have occurred. The Applicant and other staff were content to rely on feedback from Ms Taylor and the Jetstar client representative Ms Marg Jarvie.

• The Applicant became aware in mid-December 2014 that the Certificate IV qualification held by Ms Taylor had been rescinded by South West TAFE. The consequence of the rescinding of the qualification was that the Jetstar training being delivered by Ms Taylor was halted. The Applicant was not aware of nor took any action himself to establish the reasons for the revocation of Ms Taylor’s Certificate IV qualification.

• The Applicant became aware in late January 2015 of the existence of ZNX. It emerged as a result of approaches to the Respondent by two ZNX employees querying why they had received statements of attainment from the Respondent. The Applicant also became aware of fifteen employees of ZNX having been included with the cohort of Jetstar employees enrolled to undertake training as part of Taytell’s contract with the Respondent to deliver the Jetstar training.

• The Applicant also became aware that the ZNX employees had been enrolled with false email addresses; specifically they had Jetstar email addresses on their enrolment forms. The explanation provided by Ms Taylor for the incorrect email addresses was that the ZNX students had previously filled out South West TAFE enrolment forms but that relationship (with South West TAFE) had folded and that they had subsequently transcribed the enrolment forms onto Kangan Institute enrolment forms. In doing so, incorrect Jetstar email addresses had been included by mistake. The Applicant could not recall questioning or establishing with Ms Taylor how such a mistake could have been made with respect to all fifteen employees.

• On becoming aware of the ZNX students in late January 2015 the Applicant also established through his discussions with Ms Taylor that she was not delivering the training to ZNX at that time but that he was advised that a Ms Nicola Spears, who worked at ZNX, had been running the day-to-day delivery and some of the project work.

• The Applicant conceded that the delivery of training to the fifteen ZNX students was contrary to the agreement that had been entered into between the Respondent and Taytell. The Applicant was also unaware as to where the training of the ZNX’s students had been taking place.

• The combination of Ms Taylor’s Certificate IV revocation in December 2014 and the emergence of information regarding the enrolment and training of fifteen ZNX students by Ms Nicola Spears without the prior knowledge of the Respondent were, according to the Applicant, starting to cause alarm bells to ring regarding the Taytell contract.

• At this same point in time in the first week of February 2015 the Respondent was contacted by two senior staff at ZNX regarding the ZNX training. The Applicant and Ms Hayden-Long subsequently met with them on 6 March 2015. The Applicant denied being told by the ZNX representatives during that meeting that the enrolment of ZNX’s staff was likely fraudulent.

[65] During witness testimony on 5 July 2017 29 the Applicant was pressed by counsel assisting, Mr Hill QC, regarding the preparation and content of the ZNX Note and was taken through a number of specific statements in the note.

[66] Mr Ian Hill raised with the Applicant the first paragraph of the ZNX Note where it referred to a meeting in July 2014 in which Ms Taylor had:

“… stated that she had a large organisation wanting the program and a small group of students from the previous programme to complete her commitments with another organisation (ZNX).”

[67] The Applicant was challenged as to the accuracy of the statement in the ZNX Note given his earlier evidence that he was unaware of ZNX prior to late January 2017. The Applicant conceded that when he first learnt of the fifteen ZNX students in late January 2015 it was a complete surprise. 30

[68] The Applicant was taken to the second paragraph of the ZNX Note where it stated:

“…In early September Enrolments began at the new major partner and the group from ZNX enrolled on the 2/09/2014.”

[69] The Applicant conceded that at the time of the enrolments in September 2014 he was not aware of the ZNX enrolments. 31

[70] The Applicant was then taken to the third paragraph of the ZNX Note where it stated:

“…There was some confusion with our administration team who thought the ZNX students were the other organisation and therefore entered the wrong email address on the enrolment form and our Student management System (SMS) (this was later adjusted on the SMS to reflect the ZNX email address).”

[71] The Applicant conceded that the statement was actually false. When pressed as to the reason for including a false statement he was unable to recall the purpose of the note. 32

[72] The Applicant was then taken to the fourth paragraph of the ZNX Note where it stated:

“The program progressed well and the feedback from the major partner was positive with staff working on projects as part of the program that were making measurable improvements to the organisation and staff KPIs. We were unable to send a Kangan staff member to visit the ZNX training as would be a normal part of our quality plan as it was late in the year and workloads were quite high. However, we had no bad feedback from our ZNX contact Nicola Spears…..”

[73] The Applicant conceded that the statement was false and misleading. He acknowledged that he was not in fact aware of ZNX in late 2014 when the note referred to an inability of the Respondent’s staff to visit the ZNX training due to high workloads. Nor was he aware of Ms Spiers and her role at that stage (late 2014) as he only became aware of ZNX and Ms Spiers in late January 2015. The Applicant was unable to explain the reasons for the false and misleading statements. 33

[74] The Applicant was then pressed regarding the purpose of the ZNX Note. The relevant exchange between the Applicant and Mr Ian Hill QC was as follows:

“Mr Hill: Having seen that document, Mr Hodgson, and having conceded that there are misrepresentations of the truth in it, can you now think of the purpose for which you wrote that document?

Mr Hodgson: No.

Mr Hill: But it was certainly written, as we’ve seen, around 16 April 2015; yes? That’s the date of the email; presumably the attachment was written soon before you sent it.

Mr Hodgson: Yes

Mr Hill: And, at that stage, you had been involved for some time into the Kangan investigation, such as it was, in respect to this issue?

Mr Hodgson: Yes, that’s correct.

Mr Hill: Yes. Do you say that you weren’t trying to put a spin on the facts so as to make them appear more favourable for the Kangan Institute?

Mr Hodgson: I can’t recall.

Mr Hill: You can’t recall. But you don’t discount that as a possibility?

Mr Hodgson: I-I suppose not.” 34

Evidence of Applicant

[75] During the proceedings in the present matter the Applicant gave the following evidence in response to questions from the Respondent and the Commission.

[76] The Applicant stated that Taytell was initially engaged by the Respondent’s Aviation and Engineering department as a contract trainer in August 2014 to deliver training at Jetstar. 35 Taytell’s delivery of training at Jetstar commenced in September 2014 following completion of the student enrolment process.

[77] No employees from the Respondent, to the Applicant’s knowledge, went to the training facilities being used by Taytell to assess the quality of those facilities and/or the quality of the training delivery to Jetstar. 36

[78] The Applicant gave evidence that the Respondent staff visits to the site of where the training was being conducted by a contract trainer was part of the normal quality cycle. However, the Jetstar training had started in September 2014 and was expected to have continued until the middle of 2015. As Ms Taylor’s Certificate IV qualification was rescinded in late 2014, resulting in the cessation of the Jet Star training, any potential visit to the training facilities in 2015 was moot.

[79] In confirming the quality and progress of the Jetstar training the Applicant relied on reports from Ms Taylor and the nominated Jetstar contact Ms Jarvie. 37

[80] The Applicant first became aware of ZNX on or about 28 January 2015. 38 The company name arose in the context of two ZNX employees querying why they had received statements of attainment from the Respondent for participation in training. The Respondent also identified problems with the email addresses of fifteen participants enrolled in the Jetstar course. On the basis of advice from Ms Taylor, the fifteen names were understood by the Applicant to be employees of a company called ZNX but had been given Jetstar email addresses by mistake by Ms Taylor.

[81] The Applicant confirmed that when the initial meeting in mid-2014 with Ms Taylor occurred, his recollection was that she had only mentioned Jetstar as the client for which the contracted training would be delivered. 39 He had no recollection of Ms Taylor raising the participation of a smaller group (ZNX) at the initial meeting as was subsequently claimed by her.40 Consequently, the emergence of ZNX’s participation came as a surprise to the Applicant in late January 2015.

[82] The Applicant stated that the preparation of the ZNX Note in April 2015 occurred in the context of what was emerging, but as at that stage (April 2015), incomplete information on the full scope of Ms Taylor and Taytell’s fraudulent conduct, of which full knowledge only emerged at a later date. The Applicant speculated that he may have prepared the briefing note from the perspective of Ms Taylor and on the basis of information that she had provided to him. He was unable to provide an explanation as to why he would have written the note from Ms Taylor’s perspective. 41

[83] The Applicant sought to clarify aspects of the ZNX Note that went to the enrolment of the ZNX students. While he was not aware of the ZNX enrolments in September 2014 when the Jetstar enrolments were made he subsequently became aware of ZNX in late January 2015. Hence, when he prepared the note in April 2015 he claimed to have done so with the more recent knowledge, based on information from Ms Taylor, of the ZNX students having been enrolled with the Jetstar students in September 2014. 42

[84] The Applicant acknowledged that the ZNX Note contained false and misleading information which he could not recall nor explain the basis of. 43 He further stated that he had no recollection of preparing the note and conceded that there was no context within which false and misleading statements would be acceptable.44

[85] Despite being unable to reconcile statements in the ZNX Note, the Applicant stated that it would not have been his intention to mislead anyone who may have read the note. 45 Further, the Applicant claimed that there would have been no purpose in constructing an alternate set of facts because the note was a draft internal working document intended to be referred to only by persons already familiar with the details of the Taytell contract. Consequently, the note could not have misled those who it was sent to, i.e. Ms Weavers and Ms Hayden-Long.46

[86] The Applicant claimed that when cross-examined during the IBAC hearing he “…guilelessly answered…” the questions put to him regarding the ZNX Note rather than simply stating that he had no recollection of the preparation of the note. 47

Evidence of Ms C Hayden-Long

[87] Ms Hayden-Long gave evidence that she had asked the Applicant to prepare a briefing note (ZNX Note) in April 2015 regarding the status of Taytell and Jetstar/ZNX to assist her (Ms Hayden-Long) in a planned meeting with the Respondent’s COO Mr Bruce Whittaker and Ms Hayden-Long’s line executive Ms Kelly Townson. 48 The request arose from emerging concerns within the Respondent organisation regarding Taytell and Ms Taylor.

[88] Ms Hayden-Long stated that she had not asked the Applicant to prepare the briefing note from Ms Taylor’s perspective but did observe that parts of the paper appeared to have been written from Ms Taylor’s perspective. Ms Hayden-Long attributed this to Ms Taylor having been the prime source of information relied on in respect to the status of the Jetstar/ZNX training. 49

[89] Ms Hayden-Long described the ZNX Note prepared by the Applicant as containing rubbish which was why she discarded it and didn’t use it in her meeting with the Respondent’s executives. 50 Ms Hayden-Long was unable to offer any explanation as to the Applicant’s motivation in including particular information in the briefing note but was adamant that no one was misled as it (the ZNX Note) didn’t go anywhere beyond her.51

[90] Ms Hayden-Long expressed the opinion that the Applicant had been confused and “bamboozled” when questioned at IBAC regarding the ZNX Note and that she believed that he simply couldn’t recall the note or the context in which it was written more than two years after he had written it. 52

Evidence of Ms D Armstrong

[91] Ms Armstrong gave evidence on the testimony that the Applicant gave to the IBAC hearing on 4 and 5 July 2017, such testimony at IBAC having prompted the Respondent’s investigation and ultimate termination of the Applicant’s employment. She detailed the process of the investigation undertaken by the Respondent and the opportunity afforded to the Applicant to respond to a series of detailed questions provided to him in correspondence dated 25 July 2017. 53

[92] Ms Armstrong stated that following receipt and consideration of responses provided by the Applicant in correspondence dated 3 August 2017 the Respondent determined that it had cause to dismiss the Applicant based on:

“a. The applicant had failed to perform his due diligence and acted contrary to the obligations owed by him to BKI in respect to his dealings with Ms Taylor and Taytell

b. The applicant’s failure to prevent the fraudulent conduct of Taytell and Ms Taylor provided motive for him to seek an alternative version of events regarding his dealings with Taytell and Ms Taylor

c. The applicant’s email of 2 February demonstrated his motive to exculpate himself and others directly involved. The information contained within the ZNX note sent 16 April was false and self-serving, its purpose being to mislead in the event that the applicant’s dealings with Taytell and Ms Taylor were subject to further scrutiny at that time

e. In sending the ZNX note to the two other persons who had been implicated and had given testimony at the IBAC hearings; BKI inferred that the applicant was seeking to collude with them in presenting one, alternative version of events in order to mislead BKI

f. In his response the applicant was unable to provide a reasonable explanation for his actions and inactions in regard to Taytell and Ms. Taylor, specifically:

i. Having not conducted a site visit or taken adequate steps to verify the training

ii. In his assertion that there were no deficiencies in the Taytell files

iii. In his lack of action on the irregularities that became known in February 2015

iv. In his inability to provide a reasonable explanation at IBAC hearings or in his written response for preparing the ZNX note and emailing it to other persons implicated in negligence of duties” 54

[93] Ms Armstrong confirmed in her evidence that the Applicant’s preparation and sending the ZNX Note was the key issue relied on by the Respondent in terminating the Applicant’s employment in circumstances where the Applicant was unable to provide a credible explanation for the note. The other issues raised in the Respondent’s 25 July 2017 correspondence and the Applicant’s subsequent responses went to the issue of the Applicant’s motivation. 55 Specific findings in relation to each of the issues raised by the Respondent, with the exception of the ZNX Note, were not conveyed to the Applicant.

[94] Under cross-examination Ms Armstrong was pressed by the Applicant in relation to a number of matters including whether it (the Respondent) had properly understood, considered and/or investigated the Applicant’s role and responsibilities with respect to the Taytell contract. Ms Armstrong in response to a series of questions made the following concessions:

• Ms Armstrong was not aware of the Applicant’s specific contract responsibilities with respect to Taytell; 56

• A position description for the Applicant was not referred to by the Respondent at the time of the dismissal; 57

• Ms Armstrong was not aware of any particular policies and procedures in place or training provided to staff in 2014/2015 with respect to fraud detection and prevention; 58

• Ms Armstrong had not personally checked procedures relevant to the Applicant’s responsibilities and the decision to dismiss him as she had not been involved in that decision; 59

• As regards the Taytell file deficiencies Ms Armstrong was unable to describe the Applicant’s specific responsibilities in terms of the file’s maintenance; 60

• Ms Armstrong confirmed that she was not aware of any records held by the Respondent that called into question the Applicant’s honesty or integrity. 61

Consideration

[95] I accept the evidence of both the Applicant and the Respondent that the Respondent was subject (along with other organisations) to a sophisticated fraud perpetrated by Taytell and Ms Taylor, the full detail of which was only revealed through the course of the IBAC Operation Lansdowne investigation.

[96] Regarding the role of the Applicant in managing the Taytell contract there was a lack of clarity in the Respondent’s evidence regarding the Applicant’s specific responsibilities. Notwithstanding that lack of clarity it is evident that the Applicant had a key role in supporting the contract from an administrative and client relationship perspective. If his role had been irrelevant or on the periphery it is highly unlikely Ms Hayden-Long would have specifically requested him to prepare the ZNX Note in April 2015 nor would he have accompanied Ms Hayden-Long in their 6 February 2015 meeting with senior ZNX representatives. I am satisfied that the Applicant had a significant role in the administration of the Taytell contract arrangements.

[97] The Respondent did not make findings nor rely on such findings in relation to any Taytell contract management shortcomings in dismissing the Applicant. Nor was I satisfied on the material before me as to the Applicant’s level of personal culpability in relation to several issues raised with him in the Respondent’s 13 July 2015 correspondence, specifically: Taytell training record management, physical verification of training occurring, the RPL process undertaken for Ms Taylor by the Respondent and the Applicant’s dealings with Ms Taylor between December 2014 and September 2015 as evidence of irregularities emerged.

[98] The conduct relied on by the Respondent and which was the main focus of evidence in these proceedings was that of the Applicant’s preparation and forwarding of the ZNX Note on 15 April 2015 to Ms Hayden-Long and Ms Weavers.

[99] In explaining the ZNX Note the Applicant stated that while he accepted that he had written it, he simply could not recall the preparation of the note or the context in which it was written. This claim of a lack of recollection contrasted with his testimony at IBAC where he did not raise such a defence but subsequently claimed in these proceedings that he had “guilelessly” answered questions at the IBAC hearing. This change in position of the Applicant in relation to his memory of the ZNX Note was unconvincing and ultimately unhelpful to his case as he was unable to offer an explanation of the note. The Applicant also speculated that it appeared he had written the note from the perspective of Ms Taylor.

[100] Ms Hayden-Long’s evidence did little to assist an understanding of the ZNX Note beyond the fact that she had requested the Applicant to prepare a note to assist her in a briefing of more senior management in relation to the Taytell, Jetstar and ZNX contract developments. According to Ms Hayden-Long no direction was provided to the Applicant to prepare the note or parts of it from the perspective of Ms Taylor although Ms Hayden-Long did opine that it appeared he had done so.

[101] I am satisfied that the ZNX Note included statements which on their face were false and misleading. Those false and misleading statements went to the enrolment of ZNX students, an inability of Respondent staff to make site visits to ZNX in late 2014, no bad feedback having been received from the ZNX contact Ms Speirs in that same period of late 2014 and the claimed inputting of incorrect Jetstar email addresses for the fifteen ZNX staff by the Respondent’s administrative staff.

[102] The Applicant argued that aspects of the note’s inaccuracies with respect to the timing of ZNX enrolments could be explained by the fact that when he wrote the note in April 2015 he had, by that stage, become aware of ZNX (in late January 2015) and he simply sought to reflect the reality of their participation in the training. This explanation is unconvincing having regard to other false statements within the ZNX Note, which the Applicant conceded, and also given there was no attempt made in the note to describe the timing and sequence of events that drew ZNX to the attention of the Applicant and his colleagues.

[103] As to the speculation by the Applicant and Ms Hayden-Long that the note appeared to have been written from the perspective of Ms Taylor I do not accept that explanation. The tone of the note is strongly indicative of it being written as a report from the Applicant as to the progress and status of Taytell, Jetstar and ZNX work. There was no plausible explanation offered by the Applicant as to why it would have been written from Ms Taylor’s perspective.

[104] The inference was drawn by the Respondent that the note was prepared for the purpose of the Applicant exculpating himself and others, this action having been motivated by information that was then emerging in early 2015 in relation to Taytell and Ms Taylor’s activities. Alarm bells were starting to sound, driven by the “surprise” enrolment of fifteen ZNX students revealed in January 2015, two ZNX staff having wrongly received statements of attainment from the Respondent, direct approaches from senior ZNX management and the identification of incorrect Jetstar email addresses having been transposed onto fifteen ZNX employee enrolment forms. These developments in early 2015 and the management of the Taytell contract by the Applicant and others responsible had the potential to, and ultimately did, reflect adversely on the Applicant and his colleagues.

[105] The inference of exculpation was put to the Applicant during the IBAC hearings, during the investigation and again during current proceedings. The Applicant was unable to provide a credible alternative explanation beyond that he could not recall preparing the note. In any event he claimed he would not have sought to mislead anyone through the note’s preparation.

[106] The fact that the note may not have gone beyond Ms Hayden-Long or Ms Weavers and therefore could not have misled anyone, as argued by the Applicant, is irrelevant. It is not the final audience of the note that is important but rather the intent and content of it. Tellingly, the Applicant conceded that there was no circumstance in which a false and misleading note would be acceptable.

[107] On Ms Hayden-Long’s evidence the note was requested by her for the purpose of briefing senior management which I accept. In these circumstances it ought to have been recognised as important by the Applicant that the note prepared be an entirely accurate reporting of the status of the Taytell, Jetstar and ZNX contract arrangements. It clearly wasn’t.

[108] Read in its entirety and in the context of emerging concerns in early 2015 regarding Taytell and Ms Taylor’s activities I am satisfied that the note was drafted to create or reinforce a narrative that ZNX were an explicit part of the original Jetstar training program when it was initiated in mid-2014. I am further satisfied that narrative was patently false, misleading, self-serving and in clear conflict with the Applicant’s evidence as to the timeline of key events, specifically, when he and others within his team became aware of ZNX which was not until late January 2015. No credible explanation for the false and misleading statements was provided by the Applicant.

[109] Having weighed the various material available I am satisfied that the Applicant’s preparation and forwarding of the ZNX Note, which was false and misleading, constituted serious misconduct. I am consequently satisfied that at the time of the Applicant’s dismissal the Respondent had a valid reason to terminate the Applicant’s employment based on his conduct.

Notification of the valid reason - s.38 7(b)

[110] The Applicant was advised of the misconduct allegations in correspondence dated 6 July 2017. Further detail of the allegations regarding the Applicant’s IBAC testimony was confirmed in correspondence dated 13 July 2017 which was followed up with a series of specific questions in correspondence to the Applicant dated 25 July 2017. The letter of termination dated 4 August 2017 confirmed the reasons for the Applicant’s dismissal.

[111] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,⁶² in explicit terms⁶³ and in plain and clear terms.⁶⁴ In Crozier v Palazzo Corporation Pty Ltd⁶⁵ the Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[112] I am satisfied that the Applicant was notified of the reason for his dismissal in plain and clear terms prior to the decision being made to terminate his employment.

Opportunity to respond to any reason related to capacity or conduct - s.387(c)

[113] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 66

[114] On 13 July 2017, the Applicant received a letter from the Respondent detailing allegations of the Applicant’s misconduct. The Applicant was requested to attend a meeting with the Respondent on 24 July 2017 to discuss aspects of his testimony during the IBAC hearing. The Applicant was unable to attend the requested meeting due to a medical condition.

[115] On 25 July 2017, the Applicant received a further letter from the Respondent that detailed facts and matters on which responses were sought from the Applicant. The Respondent agreed to accept a response from the Applicant in writing which was provided on 3 August 2017.

[116] The Applicant highlighted that the process followed by the Respondent with respect to his dismissal was different to that subsequently followed with respect to a colleague. Specifically, a “show cause” step taken with his colleague was not applied in his case. The Applicant did not contend however that he had not had an opportunity to respond to the reasons for his dismissal.

[117] Notwithstanding the approach applied by the Respondent in a subsequent dismissal may have differed to that applied in the Applicant’s case I am satisfied that the Applicant was given an opportunity to respond to the reasons relied on by the Respondent for his dismissal.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[118] The Applicant was expressly advised of his right to be accompanied by a support person in meetings with the Respondent in correspondence to him from the Respondent dated 13 July 2017.

[119] I am satisfied that there was no unreasonable refusal by the Respondent to allow the Applicant to be accompanied by a support person.

Warnings regarding unsatisfactory performance - s.387(e)

[120] The Applicant was not dismissed for performance shortcomings but for serious misconduct and so this factor is not relevant in my decision.

Impact of the size of the Respondent on procedures followed - s.387(f)

[121] The Respondent’s F3 - Employer Response Form indicates that at the time of the Applicant’s dismissal it employed 1,200 employees. There is no evidence before the Commission that established that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor is therefore a neutral consideration in my decision.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[122] The evidence in this matter indicates that the Respondent had access to and did in fact utilise the services of dedicated human resources specialists employed by the Respondent. This factor is therefore a neutral consideration in my decision.

Other relevant matters - s.387(h)

[123] The Applicant raised some other matters which he submitted were relevant to the Commission’s consideration of his application. These matters, which I will deal with now, can be summarised as follows:

1. His length of service with the Respondent which was over 15 years at the time of his dismissal;

2. That he had always acted with honesty and integrity during his employment with the Respondent;

3. That the Respondent had circulated an email to all staff immediately following his suspension on 10 July 2017 which named the suspended staff.⁶⁷This attracted significant media attention in advance of his appearance at the IBAC hearings which the Applicant feared had caused irreparable damage to his professional reputation and significantly diminished his employment prospects.

4. That he, along with the Respondent, had also been a victim of fraud and that nothing in his career had prepared him to anticipate the breadth of the fraud perpetrated by Ms Taylor.

[124] The Respondent submitted that with respect to the note sent to staff on the suspension of the Applicant and others, it was done with the intention of dispelling rumours, was an internal note only, was not supported by any external media releases and did not include any inaccurate or prejudicial information. The Respondent also drew attention to the social media activity that was occurring at the time with respect to the IBAC hearings.

Consideration

[125] The Applicant’s length of service of 15 years is not insubstantial. His submissions regarding his sound record of employment were not challenged by the Respondent. Those factors, along with his personal circumstances, were considered by the Respondent in its decision to provide five weeks pay in lieu of notice on termination in circumstances where they regarded the Applicant’s conduct as justifying summary dismissal. I am satisfied that the Respondent’s recognition of these factors in providing notice was appropriate and that no additional consideration is warranted. It is therefore a neutral consideration.

[126] The circulation of the note to staff by the Respondent’s CEO appears to have been motivated by a desire to dispel any rumour and innuendo. Despite submissions by the Applicant there was no evidence that the staff email was motivated by a desire of the Respondent to scapegoat some staff in order to exculpate the Respondent from responsibility for systemic management failures in fraud detection and prevention. I am not satisfied that the circulation of the note was inappropriate in the circumstances.

[127] The media attention given to the Applicant’s suspension may indeed have negative consequences in relation to his future employment, more so given the enduring record of the matter on the internet. I note however that any adverse internet record is likely to be supplemented or superseded by any final IBAC findings and report as well as through this decision. I consequently give little weight to this item.

[128] I have previously accepted that the Respondent was subject to a sophisticated fraud. The Applicant was certainly caught up in the scam perpetrated by Ms Taylor. It would be wrong however to characterise the Applicant as a passive victim with no opportunity to respond to the emerging events. Even if it were accepted that the Applicant had limited experience with or training in fraud detection training he would still at the very least have had an obligation to be scrupulously honest in his preparation of briefing material regarding the status of the Taytell contract. This was particularly the case in circumstances where concerns were emerging regarding Taytell contract irregularities. As I have previously found, the Applicant failed to discharge this basic obligation and as such I do not accept the Applicant’s submission that he was also a victim of fraud which should be regarded as a mitigating factor.

[129] Having considered the above matters I am not satisfied on balance that these additional matters weigh either way in assessing whether the termination was harsh, unjust or unreasonable therefore they are neutral considerations.

Conclusion

[130] Having considered each of the matters specified in s.387 of the Act, I am satisfied that there was a valid reason for the dismissal of the Applicant and that were no other factors that would lead to a finding that the termination was otherwise unfair. I am consequently satisfied that the Applicant’s dismissal was not harsh, unjust or unreasonable and consequently he was not unfairly dismissed.

[131] The application is dismissed. An Order will be issued in conjunction with this decision to that effect.

DEPUTY PRESIDENT

Appearances:

T. Hodgson, appearing on his own behalf.

Ms D. Armstrong and Ms K. Carter for the Respondent.

Hearing details:

2017

Melbourne

24 November 2017.

Printed by authority of the Commonwealth Government Printer

1 Exhibit A2, Statement of Travis Hodgson, Para 3.

2 Exhibit R2, Statement of Dianne Armstrong, Attachment DA1.

3 Ibid Attachment DA1.

4 Ibid Attachment DA17.

5 Ibid Attachment DA3 and DA4.

6 Ibid, Attachment DA5.

7 Exhibit A2, Attachment TH2.

8 Exhibit R2, Attachment DA6.

9 Ibid Attachment DA7.

10 Ibid Attachment DA8.

11 Ibid Attachment DA9.

12 Ibid Attachment DA10.

13 Ibid Attachments DA18 and DA19.

14 Ibid Attachment DA12.

15 Ibid Attachment DA14.

16 Ibid Attachment DA15.

17 Ibid Attachment DA16.

18 Sprigg v Paul’s Licences Festival Supermarket (1998) 88 IR 21.

19 Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465.

20 Sayer v Melsteel[2011] FWAFB 7498.

21 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

22 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

23 Ibid.

24 Edwards v Giudice (1999) 94 FCR 561 [6]-[7].

25 Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.

26 King v Freshmore (Vic) Pty Ltd[2000] AIRC 1019 [24].

27 Exhibit R2, Attachment DA17.

28 Exhibit R2, Attachment DA3.

29 Ibid Attachment DA4.

30 Ibid Page 934 - 935.

31 Ibid Page 936.

32 Ibid Page 937.

33 Ibid Page 938-939.

34 Ibid Page 946.

35 Transcript PN 219.

36 Transcript PN262.

37 Transcript PN268.

38 Transcript PN196.

39 Transcript PN 392.

40 Transcript PN 396.

41 Transcript PN 406 – 411.

42 Transcript PN 372 and PN 426-428.

43 Transcript PN 479.

44 Transcript PN 482.

45 Transcript PN 470.

46 Exhibit A2, Paragraph 15.

47 Transcript PN 346.

48 Exhibit A3, Witness Statement of Coralee Hayden-Long, Paragraph 24.

49 Transcript PN 582-587.

50 Transcript PN584.

51 Transcript PN595-596.

52 Exhibit A3, Paragraph 29, Transcript 589.

53 Exhibit R2, Attachment DA9.

54 Exhibit R2, Paragraph 15.

55 Transcript PN 633, PN 641.

56 Transcript PN667.

57 Transcript PN669.

58 Transcript 685-686.

59 Transcript PN 677.

60 Transcript PN 691-695.

61 Transcript PN 688.

62 Chubb Security Australia Pty Ltd v Thomas,Print S2679 at [41].

63 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

64 Previsic v Australian Quarantine Inspection Services, Print Q3730.

65 (2000) 98 IR 137.

66 RMIT v Asher (2010) 194 IR 1, 14-15.

67 See Paragraph [20].

Travis Hodgson v Bendigo Kangan Institute