s.394 - Unfair dismissal

• [1] On 31 December 2024, Mr Adam Bishop made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging that he had been unfairly dismissed from his employment with the Department of Justice and Community Service (DJCS).

• [2] Mr Bishop commenced full-time employment on 17 August 2015 at the Melbourne Assessment Prison, before starting on 14 August 2022 as a Senior Prison Officer at the Western Plains Correctional Centre (WPCC) - a new prison facility operating without prisoners.[1] Mr Bishop was dismissed from his employment with DJCS on 19 December 2024.[2]

• [3] It is not in dispute between the parties that Mr Bishop is a person protected from unfair dismissal. The matter I must determine is whether Mr Bishop's dismissal was harsh, unjust or unreasonable, and if so, what remedy, if any, should be granted. Determining whether a dismissal is harsh, unjust or unreasonable requires an assessment of all relevant facts and circumstances, including the matters set out in s.387 of the Act. I am required to consider each of these, to the extent they are relevant to the factual circumstances before me.[3]

• [4] For the reasons given below, I find that Mr Bishop's dismissal was unfair.

• [5] DJCS says that between 20 and 21 May 2023, Mr Bishop, Ms Vanessa Lombardi, a Prison Officer, and Ms Tracey Ellens, a Senior Prison Officer, were seen on CCTV footage removing items of clothing (prison uniforms) from the mailroom at WPCC.[4]

• [6] On 1 June 2023, DJCS notified Mr Bishop he was being 'put under assessment' on account of allegations of theft of prison property and was directed to undertake alternate duties. Mr Bishop was not invited at the time to comment on the allegations.[5] The two other colleagues present during the incident, Ms Ellens and Ms Lombardi, were also notified of being 'put under assessment' in relation to the same allegation. Mr Bishop continued to work at WPCC until September 2023, before going on extended leave.

• [7] On 4 October 2023, some months after being notified that he was 'under assessment' and having received no further contact from DJCS regarding the allegation, Mr Bishop was arrested and questioned by Victoria Police in relation to the theft of prison issued clothing belonging to Corrections Victoria.[6] On 5 December 2023, he was charged with theft. On 24 April 2024, these charges were withdrawn by Victoria Police.[7]

• [8] On 9 October 2023, DJCS issued Mr Bishop with a Notice of Investigation which outlined one allegation, as follows:[8]

It is alleged that between 20 and 21 May 2023 at the Western Plains Correctional Centre (Western Plains), you stole DJCS property.

(a) On or about 20 May 2023 at approximately 8.50pm you and/ or Colleague TE and/or Colleague VL entered the Mailroom at Western Plains and/or opened a sealed box;

(b) You and/or Colleague TE and/or Colleague VL removed the following items, which totalled up to $163 in value:

(i) 1 x Corrections Victoria baseball cap; and/or

(ii) 1 x Industry Windcheater (size 16); and /or

(iii) 1 x Industry Windcheater (size 22); and /or

(iv) 1 x Rainbird Jacket (size large); and /or;

(v) 1 x Corrections Victoria beanie; and or;

(c) You removed one or more of the above items and/or concealed it/ them beneath your jacket; and/or

(c) You removed these item(s) without permission and/or did not return the item(s).

CCTV footage is available to review upon request. The full names of Colleague TE and Colleague VL can be provided upon request.

If substantiated, this conduct may be a breach of:

• Clauses 3.1 (Honesty at Work), 3.9 (Public Trust), 5.2 (Being Responsible for Decisions and Actions, 5.3 (Work Resources) and 7.1 (Leading by Example) of the Code of Conduct for Victorian Public Sector Employees 2015 (Code)

• Corrections Victoria Commissioner's Requirement 1.4.8 Conduct and Ethics (Conduct and Ethics Policy)

• DJCS Fraud, Corruption and Other Losses Policy (Fraud, Corruption and Losses Policy)

• [9] Some ten months later, on 23 August 2024, DJCS wrote to Mr Bishop advising him of the investigation findings. This letter (Allegations of misconduct - findings and proposed disciplinary outcome) confirmed that Allegation 1 of the Notice of Investigation (as outlined above) had been substantiated and that DJCS intended to terminate Mr Bishop's employment. Attached to this letter is a document titled Annexure 1 The Findings of Fact, which states that Allegation 1 and particulars a), b), c), and d) are substantiated. The reasons for the finding that the allegations were substantiated are summarised as follows:[9]

• • Mr Bishop's 'assertion that the items were taken due to the cold [was] not accepted' and 'even if the clothing were removed because it was cold, the main issue [was Mr Bishop's] failure to openly disclose to management the items of clothing that were removed and that these items are no longer accounted for.'[10]

• • Mr Bishop's assertion that he was advised he could 'just take items' was inconsistent with his previous evidence that he had made requests for jackets from Mr Daniel Lewis, Manager Workforce Services - WPCC.[11]

• Mr Bishop's evidence of there being no process in relation to obtaining uniforms was not supported by the evidence of Mr Michael Breese, Senior Operations Manager - WPCC and Mr Julian Kozijevic, Manager, Workforce Services at WPCC.

• • Mr Bishop did not provide any reasonable explanation as to why he removed the items from the mailroom in a 'clandestine fashion', by placing the items under his jacket.[12]

• • Although Mr Bishop provided evidence of the heating and cooling issues at WPCC that led to inconsistent temperatures, this did not unilaterally excuse his actions in failing to seek approval to remove the items and/ or report to management the items that were removed.[13] While it was noted that Mr Bishop had not worked at WPCC for a period of time and was not aware of how cold it was, he did not advise management or seek permission to use additional clothing items because of the cold, and he did not submit a Justice Incident Management System (JIMS) report about the cold until 1 to 2 months later, after being made aware that he was being investigated.

• If Mr Bishop's reason for taking the items is to be believed, then it was considered that it would have been reasonable to have raised concerns about the cold at the time with WPCC management.

• Although it may have been cold at WPCC, there were other avenues Mr Bishop could have followed to raise concerns and to obtain permission to acquire additional clothing, but he did not do so.

• • The allegation that Mr Bishop 'stole' DJCS property was not substantiated 'primarily because of the higher evidentiary standard required to establish that [Mr Bishop] had engaged in criminal conduct.'[14] There was insufficient evidence to find that Mr Bishop removed the property from WPCC. It was noted that Mr Bishop was subject to 'a Victoria Police investigation for [his] alleged theft of DJCS property, which was closed on the basis of insufficient evidence.'[15]

• • While the allegation of theft was not established, it was found that Mr Bishop 'removed property from one designated location without authority, prior approval or subsequently notifying the appropriate persons of [his] actions.'[16]

• [10] The letter states that the findings of the investigation were based on witness evidence, evidence from Mr Bishop by way of correspondence and interviews, and CCTV footage from 20 and 31 May 2024 (although I believe that 31 May is a typographical error, and was intended to refer to 21 May 2023).[17] The summary of findings also states that Ms Lombardi denied being involved in taking the items in any way, and that Ms Ellens 'was unable to be interviewed' for the investigation.[18]

• [11] Mr Bishop was invited to respond to the findings and did so on 10 September 2024, when his legal representative wrote to DJCS raising concerns and disputing the proposed termination.

• [12] Some four months later, on 19 December 2024, DJCS wrote to Mr Bishop by way of a letter dated 17 December 2024, terminating his employment, effective immediately. The termination letter states as follows:[19]

[T]ermination remains an appropriate outcome given the seriousness of your conduct. I am satisfied that you have engaged in misconduct justifying termination of your employment in accordance with 27.12(b)(viii) of the Agreement.

• [13] Attached to the letter of termination is a document titled Annexure 1, Allegation 1. Whilst the allegation put to Mr Bishop throughout the investigation process was that Mr Bishop 'stole' DJCS property, the allegation referenced in the termination letter was as follows:[20]

Between approximately 20 and 21 May 2023 at the WPCC, you removed DJCS items from their designated location without authority, prior approval or subsequently notifying the appropriate person of your actions.

• [14] The remainder of the wording with respect to the particulars of the allegation is largely unchanged from the allegation put to Mr Bishop in October 2023.

• [15] Mr Bishop says the reason he took the clothing items was because he was cold. Mr Bishop says that after complaining to Ms Lombardi (a Prison Officer) about how cold it was, Ms Ellens (the Acting Supervisor) suggested they borrow additional uniform items from the mailroom to keep warm for the remainder of their shift. Mr Bishop, Ms Lombardi and Ms Ellens then went to the mailroom. Mr Bishop says that Ms Ellens opened a box of unallocated uniforms and handed him a jumper, which he put on, even though it was too big for him.[21] Mr Bishop says that Ms Lombardi took a rain (Rainbird) jacket, which she folded up and placed in her pocket. [22] Ms Lombardi denies taking the rain jacket, or any other items from the mailroom. Mr Bishop says that Ms Ellens then handed him a jumper and beanie for her to wear. He says he took the items for Ms Ellens and concealed them in his jacket because he did not want her to get in trouble.[23] He says that he then 'jokingly' put the jumper and beanie up his own jumper, pretending to conceal the items.[24] He left the mailroom with the items under his jacket and walked back to the Gatehouse. Mr Bishop says he placed the items for Ms Ellens (being the jumper and beanie) in a transparent work-issued bag and then placed the bag on her desk for her to use upon her return.[25] Mr Bishop says that at the conclusion of the shift, he placed the jumper he had borrowed on the shared supervisor's desk next to the big scanner.

• [16] Mr Bishop says that he was targeted by DJCS for his activism in relation to LGBTQI matters.[26] It was Ms Lombardi's evidence that she and Ms Ellens went to the mailroom because they wanted to speak to Mr Bishop in private about 'flying under the radar' due to some recent events Mr Bishop had been involved in at work.[27] Ms Ellens agrees that they did speak to Mr Bishop about recent issues but denies that this was the reason for going to the mailroom. Ms Ellens says they did not need to go to the mailroom to have a private discussion with Mr Bishop,[28] because the other two staff members on shift that night were in the control room, so they could have had a private conversation in the kitchen.

• [17] Neither Ms Lombardi nor Ms Ellens gave evidence about Mr Bishop's activism. Ms Ellens said that she had a number of conversations with people, including with Mr Darren Finney (Senior Prison Officer), and was informed that 'management were not happy with [Mr Bishop] and wanted him gone.'[29] Mr Finney gave evidence regarding the text message exchanges that occurred between himself and Ms Ellens between May and September 2023. In these text messages, Mr Finney expressed concern that Ms Ellens was collateral damage because DJCS was targeting Mr Bishop. It was Mr Finney's concern that Ms Ellens 'was going down with the ship.'[30] It was Mr Finney's evidence at the Hearing that he no longer believes this, after having seen the witness statements which state that Ms Ellens also took a jumper.[31]

• [18] DJCS say that the items Mr Bishop took from the mailroom have never been recovered, save for the beanie Ms Ellens wore, which she later returned.[32] Ms Ellens says she returned the beanie and a jumper a few weeks after the incident.[33]

• [19] Mr Bishop says he was not aware of how cold it was at the workplace, because he had not been at work the previous few days, and he therefore came to work underprepared for the cold.[34] It was not contested that the workplace was cold and that the heaters were not working. It was also uncontested between the parties that it had been reported that staff had brought in doonas and hot water bottles to try and keep warm.[35] At the Hearing, DJCS acknowledged that there were issues with the temperature being too cold for staff working at WPCC.[36]

• [20] Both parties provided evidence on the provision of uniforms and DJCS' uniform policy. This evidence went to how uniforms are ordered and supplied to employees. DJCS submit that if Mr Bishop had been cold, he could have ordered additional uniform items and was aware of how the uniform ordering process worked. It is not contested by Mr Bishop that he understood the process for ordering uniforms.

Was the Dismissal harsh, unjust or unreasonable?

• [21] In considering whether the dismissal of Mr Bishop was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct. The reason or reasons should be 'sound, defensible and well-founded' and should not be 'capricious, fanciful, spiteful or prejudiced.'[37] A reason would be valid 'if the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanor).'[38]

• [22] Mr Bishop submits that there is no valid reason for termination as the allegation he stole DJCS property was not substantiated and, as conceded by DJCS, it did not have any evidence that Mr Bishop took the clothing items from WPCC premises.[39] Mr Bishop says that the lesser allegation of removing items of clothing from their designated location without authorisation, approval or subsequent notification was the reason given for the dismissal, and that this was only put to him for the first time in his termination letter of 17 December 2024. He says that this allegation is not a valid reason and is grossly disproportionate to the misconduct, if the alleged act can even 'truly be characterised as misconduct'.[40] Mr Bishop also says that staff cannot reasonably be expected to work in very cold temperatures, and that the standard practice of DJCS storing wet/cold weather gear in the vehicle gate was not in place because WPCC was a new facility, so communal wet/cold weather gear had not yet been made available to staff.[41] Mr Bishop says that he had the permission and authority of Ms Ellens to remove the items but also acknowledges that he did not follow the correct protocol for obtaining uniforms.[42]

• [23] DJCS submit that Ms Bishop intentionally misappropriated items of clothing and that he admitted to doing so during the investigation process.[43] It says that Mr Bishop attempted to conceal his conduct by hiding the clothing under his jacket, then placed the items in a plastic bag at his desk. It also says that the items were never found and that Mr Bishop knew that he was taking the items of clothing contrary to DJCS policy and without permission.

Removal of DJCS items from their designated location

• [24] It is not contested by the parties that Mr Bishop removed items of clothing from the mailroom. However, it is contested as to what items of clothing were taken by Mr Bishop. DJCS say Mr Bishop took two jumpers, a hat and a beanie, and that he gave some items to his colleagues shortly after leaving the mailroom. Mr Bishop says he took two jumpers and a cap, but not a beanie. Mr Bishop said that he wore a jumper and took the cap to wear when he went outside, because it would keep his head dry if it was raining.[44] It was Ms Ellens' evidence that Mr Bishop took two jumpers, a beanie and a cap and that she is '100% certain'[45] that Ms Lombardi took a rain jacket.[46] Mr Bishop says that Ms Lombardi took something from the mailroom and put it in her pocket but 'was not sure what she took'.[47] Ms Lombardi denies taking the rain jacket, and said that the video footage, which shows her placing something in her pocket, was not her putting a rain jacket in her pocket but just some rubbish. Ms Ellens says she took a jumper and a beanie, which she later returned.

• [25] I have had the opportunity to review the footage tendered into evidence. The CCTV footage shows Mr Bishop leaving the mailroom with clothing items concealed under his jacket. Further CCTV footage shows Mr Bishop, Ms Ellens and Ms Lombardi returning to the Gatehouse. Mr Bishop is then seen placing some items into a clear bag and some other items on a desk. It is not easy to identify from the footage exactly which items were placed where. DJCS says that some of the items removed by Mr Bishop, being a jumper and cap, have never been recovered. Ms Ellens says that she took her plastic bag, containing a jumper and beanie, home. There is no evidence about what happened to Mr Bishop's plastic bag or whether he removed any of the items from the facility.

• [26] I accept, having reviewed the video footage and considered the witness evidence, that Mr Bishop did remove items of clothing from the mailroom, and that he concealed a cap, beanie and jumper under his jacket when leaving the mailroom. I also accept that he left the mailroom wearing one of the jumpers and that he wore it for the remainder of his shift.

• [27] Mr Bishop says that he took a jumper and a cap from the mailroom for himself, and that he took some other items for his colleagues, because of the cold. DJCS say that if Mr Bishop was cold, then he could have ordered additional uniform items. However, I do not consider that this response reflects the immediacy of the issue facing Mr Bishop, which was that his workplace was cold that night. It is incumbent upon an employer to provide a safe workplace, which includes reasonable protection from cold conditions. Noting the uncontested evidence of the temperature conditions of the workplace that night, I consider it reasonable for Mr Bishop to have taken steps to try and keep warm. Mr Bishop proceeded to wear the jumper that he took from the mailroom for the remainder of the shift. This was not contested and accords with the reason he gave for taking the clothing in the first place. Ordering additional items of uniform would not have addressed the cold conditions that night.

• [28] I do not find Mr Bishop's explanation, of why he chose to conceal some items under his jacket when leaving the mailroom, to be particularly cogent. However, I do accept that he did so in jest, although this was poorly considered. I also accept there was an element of Mr Bishop's behaviour that accords with his belief that he was being targeted. I do not consider it relevant or necessary to make a finding as to whether Mr Bishop was being targeted, but I do consider that his view that he was being targeted led him to make the decision to conceal items under his jacket when leaving the mailroom. I do not consider that concealing the clothing under his jacket was done with the purpose of intending to deprive DJCS of the items. This is evidenced by the fact that when he returned to the control room, Mr Bishop placed the items openly in a clear bag and on Ms Ellens' desk. This demonstrates that Mr Bishop did take the items for his colleagues as he stated. I accept that concealing the clothing items was a strange thing to do, especially as it was Mr Bishop's evidence that he knew the CCTV camera was in front of the mailroom and as he makes no attempt to hide from the camera's view. Mr Bishop also says that he had access to the cameras in the control room and could have deleted the footage if he thought it was necessary, though I will note that this would not have been an appropriate course of action.

• [29] While I accept that Mr Bishop removed items of clothing from the mailroom, there is no evidence that Mr Bishop removed the items from the premises. It was Mr Breese's evidence that there were 1500 active cameras operating at the prison at that time,[48] yet no request was made as part of the investigation for any CCTV footage of Mr Bishop leaving the premises that night. DJCS does not appear to have made any attempt to ascertain whether Mr Bishop removed the items from the premises that night, although they could have reasonably done so.

• [30] Having considered whether Mr Bishop removed the items from the mailroom, and being satisfied he did so, I now turn to the second element of the allegation against Mr Bishop - that he removed the items of clothing 'without authority, prior approval and that he did not subsequently notify the appropriate person of his actions.'[49]

Authority, prior approval and subsequent notification to the appropriate person

• [31] DJCS say that Mr Bishop did not have permission or authority to remove the items from the mailroom. DJCS says that Mr Bishop ought to have known that Ms Ellens did not have authority to take the items. Mr Bishop says that he had permission from his supervisor, Ms Ellens, and that she had determined that additional uniforms were necessary due to the cold conditions that night.

• [32] DJCS say that Ms Ellens was not the supervisor or appropriate authority that night, and that there was no duty manager on site that night. They say that the duty manager was offsite and available by phone. DJCS say that it was this person from whom permission should have been sought to remove the items from the mailroom and that Mr Bishop and Ms Ellens were operating at the same level that night - both as Senior Prison Officers (SPOs).

• [33] While I accept that Mr Bishop and Ms Ellens were both SPOs, I do not accept there was no supervisor or senior person on site that night. I accept the evidence of Ms Lombardi,[50] Ms Ellens,[51] Mr Finney,[52] Mr Breese[53] and Mr Bishop[54] who all say that Ms Ellens was the duty supervisor that night. I note that the witnesses, at times, used the terms duty manager, supervisor, and shift supervisor interchangeably when referring to Ms Ellens. I am satisfied, regardless of the terminology used, that Ms Ellens was the supervisor in charge onsite that night.

• [34] It was Mr Breese's evidence that Ms Ellens did not have the authority to give Mr Bishop permission to remove items from the mailroom.[55] However, there is no evidence that Mr Bishop was aware that Ms Ellens was acting outside the scope of her authority as the supervisor. It was Ms Lombardi's evidence that she did not know if Ms Ellens had the authority to remove the items. The issue of whether Ms Ellens had authority does not of itself establish that Mr Bishop knew he was acting without permission. There is no evidence that Mr Bishop knew or ought to have known that Ms Ellens did not have authority, or that the off-site duty manager should have been contacted by Mr Bishop for permission to access additional clothing to address the cold temperatures. There is no evidence as to why, or in what circumstances, the off-site duty manager is the appropriate contact, and no evidence to show why this off-site duty manager is the only person whose permission was needed to obtain the clothing, despite there being a supervisor on-site. Further, I do not accept that taking clothing items to wear because of cold conditions is an issue of a nature or magnitude that would ordinarily prompt a call to the off-site, on-call duty manager. It would be more commonplace to simply ask the supervisor onsite for additional uniforms if the workplace was cold.

• [35] Mr Bishop says that he had the permission of his supervisor, Ms Ellens, to remove the items from the mailroom. The CCTV footage shows Ms Ellens handing the uniform items to Mr Bishop and him trying on a jumper. Later, Mr Bishop places some of the items on Ms Ellens' desk and they are then seen engaging in a conversation. There is nothing to suggest that Mr Bishop was acting without permission. On the contrary, the evidence shows that the actions he took were in full view, and with the cooperation of, the most senior person on-site at the time, being Ms Ellens.

• [36] Having found above that Ms Ellens was the most senior person on duty that night, it is clear from the evidence before me that Ms Ellens gave permission, rightly or wrongly, for Mr Bishop to remove the clothing items from the mailroom.

• [37] DJCS say that Mr Bishop should have subsequently notified the 'appropriate person' about removing the items from the mailroom. Mr Bishop says that he believed the items had been logged in the night shift diary.[56] The diary entry from the night of the incident was tendered into evidence[57] but did not refer to any clothing items being removed from the mailroom. It was Ms Ellens' uncontested evidence that she may have put the entry in 'the daily brief' instead of the night shift diary.[58] However, there is no evidence filed with the Commission that it was in any written record that the uniforms were removed from the mailroom that night.

• [38] I am not satisfied that Mr Bishop, having removed the items while in the presence of the duty supervisor, would then have to further notify an 'appropriate person'. It is not apparent why an employee would consider it necessary to have to seek additional approval when, in their view, approval had already been given by their supervisor. I am not satisfied on the evidence before me that Mr Bishop acted without authority, prior approval or that he failed to subsequently notify an appropriate person that he removed items from the mailroom. Regardless, I am not satisfied that Mr Bishop should have sought subsequent approval for something he already believed he had approval for from his supervisor.

• [39] On the evidence, I accept that Ms Ellens was Mr Bishop's supervisor that night, and that Mr Bishop did not act without approval when taking the clothing items, and that having obtained permission from Ms Ellens, that he was not required to subsequently notify an 'appropriate person'.

• [40] I am not satisfied that there was a valid reason for Mr Bishop's dismissal related to his capacity or conduct. Put simply, taking items from one area and moving them to another with permission is not a valid reason for dismissal.

• [41] At the Hearing, DJCS submitted that it was open to the Commission to make a finding that Mr Bishop stole the items. It said that the DJCS investigation team wrongly relied on a criminal standard of proof in deciding the allegation of theft was unsubstantiated. DJCS say that had the investigation team assessed the allegation on the correct standard of proof, that being the balance of probabilities, then a finding of theft would have been substantiated. DJCS say that 'taking into account everything [they] know, [they] can make the inference, without any footage, that [Mr Bishop] did steal the items.'[59]

• [42] Mr Bishop's submission was that 'it would appear that the investigators had a reasonable understanding about concepts of standard proof' and noted the investigation report which states that 'the standard of proof applied in the investigation was the civil standard of the balance of probabilities with a reasonable satisfaction of the alleged incident occurred in line with the Briginshaw test.'[60] I agree. I consider that the correct standard of proof was identified and applied to the investigation. Having considered the standard of proof, on the balance of probabilities, I do not accept that the evidence establishes that Mr Bishop stole the uniform items.

• [43] Having concluded there was no valid reason for Mr Bishop's dismissal related to his capacity and conduct, I find the lack of a valid reason weighs in favour of a finding that his dismissal was unfair.

Matters under ss.387(b)-(g)

• [44] I am required to consider whether Mr Bishop was given an opportunity to respond before the decision was taken to terminate his employment.[61] 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.[62] The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[63]

• [45] I am not satisfied Mr Bishop was notified of the reason relied on for his dismissal because throughout the investigation process and in all correspondence with Mr Bishop, the allegation put to Mr Bishop was that he stole DJCS property. However, the reason given for Mr Bishop's dismissal was that he removed items from one location to another without permission or notice. As such, the actual reason for dismissal was not put to Mr Bishop until he was informed that he was being terminated for this reason.

• [46] Mr Bishop says that the lesser allegation was only put to him in his termination letter of 17 December 2024. DJCS says that while the investigation report stated that the allegation of theft had not been substantiated, part (d) of the 'particulars' was sufficient in putting Mr Bishop on notice of the alleged misconduct, and therefore he was not deprived of the opportunity to respond.

• [47] I accept that the reason for termination, as referred to in the termination letter, is different to that of theft, and that the actual reason for dismissal was never directly put to Mr Bishop, such that he could respond to that allegation in particular. However, applying this factor in a common-sense way, I do not consider this had a material bearing on Mr Bishop's ability or opportunity to respond to the allegation and the 'particulars' of the events of 20 May 2023, noting that the substance of the allegation was addressed in responding to the higher allegation of theft. I therefore consider this factor to be neutral.

• [48] It is not contested, nor do I consider, that Mr Bishop was unreasonably refused a support person.

• [49] It is not contested, nor do I consider, that Mr Bishop was dismissed for unsatisfactory performance.

• [50] Neither party made submissions regarding the size of the enterprise, or whether DJCS' HR expertise impacted on the procedures that were followed. I do not consider this to be a relevant factor in this matter. It is evident that DJCS as a public sector employer has access to resources that include specialist human resources management.

Assessment of the degree of seriousness of the conduct

• [51] Mr Bishop says that the reason he was dismissed was harsh because it was not proportionate to the behaviour, and that he should have received a warning at most.[64] In addition, Mr Bishop says that he has been employed since 2015 and has never been subject to formal disciplinary action. Mr Bishop was told by Mr Breese in late 2022 to 'pull his socks up a bit,' and that there were some issues with lateness, but Mr Bishop has never received a formal warning. [65]

• [52] As discussed above, DJCS say the Commission can make a factual finding that Mr Bishop stole the items, and therefore the appropriate sanction was dismissal as 'it was behaviour that was fundamentally inconsistent with the continuation of his employment'.[66] As noted above, I do not accept, on the balance of probabilities, that Mr Bishop stole the items. It is evident that DJCS has acted as if the allegation of theft has been substantiated and has chosen a disciplinary outcome that reflects this more serious allegation. When the actual reason for termination is considered, namely that Mr Bishop removed items of clothing without authority, I do not consider that termination is proportionate to the conduct.

• [53] I also find it relevant that DJCS allowed Mr Bishop to continue working throughout the investigation process for some months, albeit on different duties. This raises important questions as to the seriousness with which DJCS considered the matter.

• [54] I do not consider that Mr Bishop's actions, in all the circumstances, warrants the termination of his employment. Whilst I note that some of the items removed from the mailroom were never recovered, a disciplinary warning of some kind would have been more appropriate in the circumstances.

• [55] Mr Bishop says that the investigation process of some nineteen months was procedurally unfair, harsh, and does not accord with Clause 27.6(b) of the Agreement, which requires that the investigation process be completed as quickly as practical. DJCS say that the reason for the delay was due to Mr Bishop being on extended personal leave. Mr Bishop says he was not the reason for the delay. He says that, and I accept, he was on leave for a period of only four out of the nineteen months it took DJCS to complete the investigation.

• [56] At the Hearing, it was the evidence of Mr Cameron Golden-Cooper, Principal Investigator, Employee investigations, that personnel changes and staff shortages at DJCS also contributed to the delay.[67] While I accept that staff changes can impact on processes and timelines, the impact of such a delay cannot be ignored, nor can the delay of nineteen months be considered fair to Mr Bishop.

• [57] I consider the delay significant for two reasons. Firstly, Mr Bishop had an ongoing allegation of theft 'hanging over his head' for a considerable period of time. Mr Bishop says it impacted his mental health which resulted in him taking personal leave from September 2023. This kind of uncertainty, over an extended period of time, can take a serious toll on a person's health.

• [58] Secondly, I consider that the delay impacted Mr Bishop's ability to put his best case forward. I consider the impact of the delay to be noticeable in the witnesses' recollections of events, and I have considered the witness evidence with this in mind. Understandably, Mr Bishop, Ms Ellens and Ms Lombardi all gave differing accounts of the events of that night, and the conversations and actions leading up to, during and after leaving, the mailroom. Overall, I found their conflicting evidence to be of less assistance in determining what took place that night and I attribute this to the significant passage of time that has elapsed since the incident, rather than any intention by the witnesses to mislead the Commission.

• [59] In addition to the delays, I have serious concerns about the processes adopted by DJCS. Most concerning is the decision made by DJCS not to interview Ms Ellens - the supervisor on duty that night. DJCS say that Ms Ellens did not make herself available to be interviewed.

• [60] It was Mr Golden-Cooper's evidence that Ms Ellens was not spoken to because she resigned in September 2023 'before her investigation could commence and [they] could obtain a response to allegations put to her, [and] so [they] never had the benefit of her evidence'.[68] However, it was Ms Ellens' evidence that she was on personal leave from September 2023 and did not resign from DJCS until 8 January 2024.[69] Further, it was her uncontested evidence that she was never asked by DJCS to attend an interview in relation to the investigation. I accept the evidence of Ms Ellens that DJCS did not attempt to interview her in relation to the investigation.

• [61] Mr Golden-Cooper also said that Ms Ellens was not interviewed because ordinarily the policy of DJCS is not to interview a co-respondent witness in an investigation.[70] However, Mr Golden-Cooper also said that 'when conducting an investigation, [they] try to speak to witnesses before, particularly if evidence would be really relevant to how [they] draft the allegations.'[71] It was Ms Lombardi's evidence that she was required to attend an interview in relation to the alleged incident.[72] This directly contradicts the evidence of Mr Golden-Cooper regarding the policy of not interviewing co-respondents, as Ms Lombardi, like Ms Ellens, was a co-respondent. I accept Ms Lombardi's evidence, as she has no reason to, nor obtains any benefit from, being untruthful about attending an interview.

• [62] It was Mr Breese's evidence that although Ms Ellens was the shift supervisor, he never asked her about the events of that night. When asked if he spoke with Ms Ellens between the incident of 20 May 2023 and the investigation notice of October 2023, Mr Breese said he did not, stating that it was 'not [his] place to do that.'[73] However, it was Ms Lombardi's evidence that Mr Breese called her the day after the incident to ask her about what had occurred with the uniforms. It is unclear why Mr Breese considered it appropriate to speak to Ms Lombardi about the events of that night, but not appropriate to speak to Ms Ellens, the supervisor on duty that night.

• [63] It is difficult to see how DJCS reasonably reached a conclusion Mr Bishop was acting without authority when they failed, or indeed even attempted, to interview Ms Ellens as a part of its investigation. Ms Ellens, who was the supervisor on site that night, had direct and relevant evidence to give about the events that took place. It is both surprising and concerning that DJCS conducted an investigation without speaking to all relevant witnesses, whether a co-respondent or not. Failing to interview, or indeed even request an interview with Ms Ellens, is completely inconsistent with conducting a fair and proper investigation into the allegation against Mr Bishop.

• [64] Another concerning aspect of the investigation is the failure of DJCS to obtain the CCTV footage of Mr Bishop leaving the premises that night. It was the evidence of Mr Golden-Cooper that this was not requested by the business unit conducting the investigation.[74] He said that by the time the workplace relations team received the referral to conduct the investigation, the 30-day time period (for keeping CCTV footage) had lapsed, and it was no longer retained.[75] However, it was Mr Golden-Cooper's evidence that the workplace relations team would have received the referral towards the end of May 2023[76] - which meant that a request could have been made for additional CCTV footage within the 30-day period. Obtaining all the relevant CCTV footage could have provided the necessary evidence to prove or disprove Mr Bishop's assertion that he placed the items on the supervisor's desk when leaving or would have assisted to know whether Mr Bishop left the premises with any of the items. The fact that DJCS had the opportunity but failed to take steps to secure all relevant CCTV footage again shows that the investigation was procedurally unfair.

• [65] I do not consider that a proper investigation was undertaken by DJCS. I cannot be satisfied that Mr Bishop received a fair, balanced and thorough investigation into what was, as DJCS put it, a serious allegation of theft.

• [66] Mr Bishop says that he was not afforded procedural fairness because he was referred to Victoria Police prior to being provided any further information about the alleged misconduct. He says that Clause 27.6 of the Agreement provides that the process regarding employee misconduct will be consistent with the principles of procedural fairness. Mr Bishop submits that the referral to the police before notifying him that an investigation was to take place establishes, at the very least, an apprehension of bias and 'thereby offends the principles of procedural fairness by which [DJCS] is bound.'[77]

• [67] Mr Bishop and Ms Ellens were both referred to the police in October 2023. Ms Lombardi was not. Ms Lombardi said that she received the letter of notification on 31 May 2023 and was interviewed only once in relation to the investigation.[78] She said she was contacted by Mr Breese the day after the incident but could not recall what was said during the conversation. It was Ms Lombardi's evidence that she was sent to Lara Police Station to give a witness statement sometime in June or July 2023. [79] She says she was taken off the night roster and placed on the day roster until she was cleared of any wrongdoing in January 2024.[80]

• [68] There is no evidence of how or why DJCS came to make an assessment that Ms Lombardi was not to be referred to the police when no witnesses had been spoken to and an investigation had not yet taken place.

• [69] It seems evident to me that DJCS formed a view about Ms Lombardi's culpability before an investigation had been conducted. This is reflected in the fact that Ms Lombardi was involved in the incident, was given a notice of assessment, and yet, was not referred to the police. Instead, she gave the police a witness statement in June or July 2023, some months before Mr Bishop and Ms Ellens were arrested and charged,[81] and before the allegations had been put to Mr Bishop and Ms Ellens.

• [70] I consider the referral by DJCS of Mr Bishop to the police to be particularly concerning. It is both unreasonable and unfair to advise Mr Bishop that he was being investigated for theft, make no further contact for four months, and then make a complaint to police which resulted in Mr Bishop's arrest, all without speaking to him or putting the allegation to him prior. Such an approach shows a callous disregard for both a fair and transparent disciplinary processes, and employee wellbeing.

• [71] I consider that the investigation process, delay and police referral were harsh and consider these factors weigh in favour of a finding that Mr Bishop was unfairly dismissed.

• [72] On balance, taking into account all the circumstances, I consider that the dismissal of Mr Bishop was harsh, unjust and unreasonable.

• [73] I am not persuaded that Mr Bishop misappropriated clothing items without authority and therefore find that there is no valid reason for dismissal. Having considered each of the matters in s.387 of the Act, I am satisfied that the dismissal of Mr Bishop was unreasonable because there was no valid reason to dismiss him. The factors in ss.387(b)-(g) of the Act are either neutral or do not weigh in favour of unfairness. The matters falling under s.387(h), as I have outlined above, weigh in favour of a finding that Mr Bishop's dismissal was unfair. Even if the reason for the dismissal was to be regarded as valid, I am satisfied that the dismissal is harsh because it was disproportionate having regard to the circumstances of the matter. Put simply, the workplace was cold and Mr Bishop with the authority of his supervisor took several items of clothing in an effort to mitigate against the cold. I also find that Mr Bishop's dismissal was harsh and unfair because of deficiencies with the investigation process, and because DJCS referred Mr Bishop to the police before having spoken to him about the allegations.

• [74] I now turn to what order I might make in relation to the dismissal.

• [75] The first matter to consider is under s.391 of the Act, and whether Mr Bishop should be reinstated. Mr Bishop does not seek reinstatement. I am satisfied in the circumstances that reinstatement is not an appropriate remedy. Mr Bishop has moved interstate which makes returning to the workplace unviable. I consider that compensation is appropriate (s.390(3)).

• [76] In assessing compensation, I am required under s.392(2) of the Act to take into account all the circumstances of the case and consider the approach for assessing compensation as outlined by the Full Bench in Sprigg v Paul's Licensed Festival Supermarket.[82]

• [77] Given that DJCS is an agency of the State Government of Victoria, I am not concerned that any compensation order I make will affect its viability.

• [78] I am required to consider Mr Bishop's length of service with DJCS. Mr Bishop commenced employment in 2015, making his length of service around 9 years and 4 months, which is a considerable period of employment.

• [79] I am required to consider the remuneration that Mr Bishop would have received or would have likely received if he had not been dismissed. DJCS submits that Mr Bishop would not have remained in employment for much longer as there were performance concerns. Mr Breese did make some brief references in his evidence to there being some ongoing performance issues with Mr Bishop.72 While these matters, such as issues around tardiness, were informally raised with Mr Bishop in 2022, he has not received any formal warnings during his employment with DJCS. I also note that Mr Bishop had been applying for other positions, since 2022, all of which have been positions within the public sector. In light of this and having considered Mr Bishop's age, I find that Mr Bishop would have likely continued working with DJCS for at least another year.

• [80] I am required to consider the efforts made by Mr Bishop (if any) to mitigate the loss suffered because of the dismissal. The Full Bench of the Commission in McCulloch v Calvary Health Care Adelaide[83] confirmed that the reasonableness of an applicant's efforts to mitigate loss depends on the circumstances of the case. Mr Bishop says that since he stopped working for DJCS, he has applied for at least 50 jobs.[84] Mr Bishop tendered a further document which he says describes the efforts he has made to find employment. However, this document details job applications made prior to his termination. The statement also provides details of tertiary studies that Mr Bishop has commenced since the termination.[85]

• [81] I consider that Mr Bishop could have made more fulsome attempts to find employment, but there are some other relevant considerations regarding mitigation. It was submitted that the investigation and the police referral had a significant impact on Mr Bishop's mental health, resulting in him going on leave from September 2023 to his termination in December 2024. I accept that the termination of employment resulted in Mr Bishop having to sell his home in April 2025 and to relocate interstate. This adds an additional degree of complexity to securing new employment. I have accounted for this in assessing Mr Bishop's efforts to mitigate his loss. I also consider that Mr Bishop was on unpaid leave prior to his termination which had a financial impact on him, and that Mr Bishop had exhausted all paid leave options available to him, because of the excessive time taken to complete the investigation. Noting these factors, in considering whether Mr Bishop has mitigated his loss, I find that a deduction of 10% is appropriate.

• [82] I am required to take into account the amount of any income earned during the period between making the dismissal and making the order for compensation. Mr Bishop's evidence is that he has earnt $240 per month, since 30 January 2025.[86] I have considered this in the deduction of income.

• [83] I am also required to consider any other matters relevant to compensation. I consider the significant delay, the police referral, along with other deficiencies in the investigation process as detailed above, as relevant in determining remedy in this case.

• [84] Section 392(3) allows me to take into account any misconduct by the person and reduce the amount if I consider it appropriate. I do not consider it appropriate to make any deduction for this purpose, as I do not consider that Mr Bishop engaged in misconduct.

• [85] I make my calculation along the following lines.

• [86] No payslip was provided regarding Mr Bishop's earnings with DJCS, however, according to the Form F3, Mr Bishop was employed full-time on a salary of $80,062[87] which is the appropriate figure for calculating compensation. I consider it appropriate to order a sum of compensation of 22 weeks at the weekly rate of $1,539.65, minus $240 for a 7-month period, then less the 10% deduction as outlined above. I have considered the impact of taxation. Compensation will be determined as a gross amount, less taxation. I therefore order that DJCS pay Mr Bishop $28,973.15, less taxation, and superannuation of $3,476.78. DJCS will have 14 days from the date of this Decision to pay.

• [87] An Order to this effect[88] will be issued with this Decision.

[1] Digital Hearing Book (DHB) page 14.

[3] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 [69].

[37] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

[38] Mr Michael Gelagotis v Esso Australia Pty Ltd T/A Esso; Mr Michael Hatwell v Esso Australia Pty Ltd T/A Esso [2018] FWCFB 6092 [117].

[56] Exhibit V1 - Confidential Interview with Applicant.

[61] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) [75].

[62] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7.

[63] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1, 14-15.

[82] Print R0235; [1998] AIRC 989; (1998) 88 IR 21.

[83] [2025] FWCFB 2267 at [23], citing Biviano v Suji Kim Collection PR915963 at [34].

[84] Exhibit A2 - Further Statement of Applicant paragraph 7.

[88] PR790138.

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