Fair Work Act 2009

s.394 - Unfair dismissal

Toyota Motor Corporation Australia Limited T/A Toyota

[1] This decision concerns an application by Mr Adrian Tainsh (Tainsh) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act).

[2] Mr Tainsh commenced employment with Toyota Motor Corporation Australia Limited (TMCA) in 1988 and was dismissed from his employment with immediate effect on 2 June 2016. He was paid 5 weeks in lieu of notice. At the time of his dismissal Mr Tainsh was working in the Paint Shop with TMCA as a General Foreperson.

[3] On the day of his dismissal Mr Tainsh was handed a termination letter which stated that he had failed to perform his supervisory duties as General Foreperson in a consistent and fair manner across the Paint Shop, improperly exercised the power and authority held by him in his position by favouring certain team members over others because of his personal relationships with those team members and fostered an exclusionary culture within the Paint Shop and engaged in conduct which breached the TMCA Workplace Relationships Policy and Procedure and the Workplace Agreement.

[4] Mr Tainsh made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Act for a remedy in respect of his dismissal by TMCA. He contends that his dismissal was unfair within the meaning of s.385(b) of the Act.

[5] This matter was subject to a number of conciliations however remained unresolved. The matter was subsequently listed for arbitration.

[6] This application was heard together with matter number U2016/2962 and the evidence in the one was considered to be evidence in the other to the extent it was relevant. The following witnesses gave evidence on behalf of Mr Tainsh;

• Mr Homer Abarra, Group Leader

• Mr Steven Tran, Team Leader, Sealer Line

• Ms Chantelle Ngo, Temporary Fixed Term (TFT) employee

• Ms April de Leon (nee Aban), TFT employee

• Mr Robert Nin, General Foreperson

• Mr Gebrekiros Abera, Group Leader

• Mr Carlo Vadala, Production Manager

[7] The following witnesses gave evidence on behalf of TMCA;

• Ms Heather Box, Divisional Manager, Human Resources

• Mr Geoff Kershaw, Plant Manager Paint and Resin

• Ms Clare Slattery, Diversity and Workplace Agreement Manager, Human Resources

• Ms Kala Talevski, Permanent employee

• Mr Anees Rehman, Permanent employee

• Ms Anna Vasiljie, Trainee TFT employee

• Ms Sizen Haciomer, Trainee TFT Employee

• Ms Viengsamai (Mai) Souliyavong, Permanent employee

• Ms Sudhaa Rajaram, Trainee TFT employee

• Ms Francis O'Brien QC, Queens Counsel Victorian Bar

[8] There were a number of objections made during the hearing and I make some preliminary remarks about some of the evidence which was subject to objection in this matter. There was debate as to the admittance of the Confidential Disclosure Report[1] (Disclosure Report), Ms O'Brien QC's Investigation report[2] (Investigation Report) and the findings of Ms O'Brien QC[3] as to what use the Commission should make of those documents.

[9] Mr Tainsh objected to the Investigation Report on the grounds that the report was hearsay, however did not object to it being admitted for non-hearsay purposes of proving that the investigation was conducted by Ms O'Brien QC and the report was provided to TMCA who relied on the report's findings.[4] It is uncontroversial that TMCA relied on Ms O'Brien QC's findings. TMCA submitted that the Commission is not bound by the rules of evidence and there is no unfairness to Mr Tainsh by the admission into evidence of the Investigation Report and that it is open on the totality of the evidence before the Commission, even putting aside the Investigation Report, to essentially make its own findings as to the conduct of Mr Tainsh.[5]

[10] Mr Tainsh also objected to the use of the Disclosure Report on the grounds that it was hearsay evidence, primarily because the report is a record of a complaint made anonymously to the TMCA STOPLine. It was acknowledged that the Commission could have regard to the Disclosure Report if it was used to prove the complaint was made however the objection was pressed if it was being used to prove the truth of allegations set out in the report.[6]

[11] I accepted the Disclosure Report and indicted that I would give consideration to the parties' submissions as to the weight I should accord to it.

[12] Although the Evidence Act is not directly applicable to the Commission the rules of evidence are generally followed.[7] There is no automatic prohibition in proceedings before the Commission on the reliance of hearsay evidence.[8] It may be relied on if it is shown to be probative of a fact in issue, however it would not ordinarily be relied on if it was to result in judicial unfairness to the opposing party.[9]

[13] The task of the Commission is to satisfy itself of the validity of the reason relied upon for the dismissal and its factual underpinning. In matters relating to misconduct it is for the Commission to make findings on the evidence provided as to whether, on the balance of probabilities, the conduct occurred.

[14] I have had regard to the objections and have only relied on the evidence in Ms O'Brien QC's Investigation Report and findings and the Disclosure Report to a limited extent in making my factual findings. The Disclosure Report is only relevant in so far as it was the report that prompted TMCA's investigation into the alleged misconduct of Mr Tainsh and Mr Abarra. Ms O'Brien QC's Investigation Report and findings are only relevant to the extent in making my factual findings about TMCA's reliance on those findings in forming their decision to dismiss Mr Tainsh.

[15] Mr Tainsh filed his application within the time limit prescribed by s.394(2) of the Act.

[16] During his employment with TMCA, Mr Tainsh was covered by the Toyota Motor Corporation Australia (TMCA) Workplace Agreement (Altona) 2015 (Workplace Agreement). Mr Tainsh's period of employment with TMCA was longer than the minimum employment period. Mr Tainsh is protected from unfair dismissal under the Act.

[17] As at the time of Mr Tainsh's dismissal, TMCA had approximately 4,000 employees across Australia, therefore the Small Business Fair Dismissal Code does not apply.

[18] No issue of redundancy arose in the proceeding and I find that the dismissal was not a case of genuine redundancy.

[19] Therefore the issue for me to consider is whether Mr Tainsh's dismissal was harsh, unjust or unreasonable.

[20] This application concerns Mr Tainsh's dismissal for misconduct. In summarising the background I also make reference to the agreed facts as submitted in a joint statement by the parties.[10]

[21] There are two main sections in TMCA's Paint Shop, namely Production and Quality. The main functions of the Paint Shop are to apply an electro coat, sealer, primer and top coat to vehicle bodies. Quality is responsible for general quality assurance, rectification of quality issues, minor assembly work and despatch of the vehicle body to Assembly.[11]

[22] Mr Tainsh had been employed by TMCA for over 20 years and at the time of his dismissal he was the General Foreperson in the Paint Shop working the evening shift. Mr Abarra was the Group Leader in the Paint Shop with respect to the Sealer Group and reported directly to Mr Tainsh.

[23] Mr Tainsh was also a union delegate for the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and held the role of Senior Employee Representative at the Altona site. As the Senior Employee Representative on site Mr Tainsh was the final escalation point for employees seeking union assistance or advice at the workplace level.[12] Mr Tainsh was also involved in the Enterprise Agreement negotiations in 2005, 2010 and 2011.[13] Mr Tainsh submits he maintained a good relationship with management during his time as a delegate.[14]

[24] The position of General Foreperson is the highest classification in TMCA's Workplace Agreement in which an employee had been engaged at the time of Mr Tainsh dismissal.[15] Mr Tainsh as General Foreperson had overarching supervisory responsibility for approximately 69 team members. The chain of command in the Paint Shop is; Team Member, Team Leader, Group Leader, General Foreperson, Department Manager and Plant Manager.[16]

[25] During December 2015 Ms Slattery became concerned as to a number of rumours that were circulating regarding Mr Tainsh's conduct with a number of young female TFT employees. Ms Slattery became aware of a relationship that had developed between Mr Tainsh and Ms de Leon, a young female TFT employee. Ms Slattery was concerned as Ms de Leon's ex-husband, Mr Aban, also worked in the Paint Shop. Ms Slattery was also concerned by the significant difference in seniority between Mr Tainsh and Ms de Leon both in respect of his role as manager and that he was the ultimate authority in deciding if Ms de Leon's temporary fixed term contract would be renewed.[17]

[26] On 16 December 2015 Ms Slattery held separate meetings with Mr Aban and Ms de Leon. Ms Slattery and Mr Kershaw also met with Mr Tainsh in a separate meeting and raised their concerns with Mr Tainsh regarding the rumours circulating within TMCA, being that he was regularly drinking with at a pub after the afternoon shift with a select group of young female TFTs referred to as "Adrian's girls", engaging in a relationship of a sexual nature with Ms de Leon,[18] and that he only hired young, Asian women.[19]

[27] Ms Slattery's meeting with Ms de Leon resulted in Ms de Leon going home early as she was not in a fit state to continue to work that day. Ms Slattery called Ms de Leon for a welfare check on 17 December 2015 and met with her again on 14 January 2016. On 18 January 2016, Ms Slattery received a computer-generated report which showed that Ms de Leon had resigned from her employment with TMCA on 16 January 2016. Ms Slattery sent a text message to Ms de Leon to let her know she had become aware of the resignation and to check on her welfare. Ms de Leon responded stating, amongst other things, she believed Mr Aban was involved in TMCA's decision to interfere in her personal life and that if management wanted to get involved in her divorce and personal matters then she had no choice but to leave.[20]

[28] On 20 January 2016, Ms Slattery received an email notification through the TMCA STOPLine service that an anonymous whistle-blower complaint had been made raising a number of allegations regarding Mr Tainsh's conduct towards Ms de Leon.[21] Ms Slattery subsequently held meetings with some of the employees in the Paint Shop during which allegations regarding Mr Tainsh's conduct were made.[22]

[29] On 27 January 2016 Ms Slattery sent a letter to Mr Tainsh's home requesting he attend a meeting with both Ms Slattery and Mr Kershaw on site at 5:00pm before shift commencement. Mr Tainsh telephoned Ms Slattery explaining he was not going to come in early for the meeting and enquired as to the purpose of the meeting. Ms Slattery explained that there had been some serious allegations made against him and he would be suspended with pay pending an investigation into the allegations.[23]

[30] Mr Tainsh did not attend work that day and Ms Slattery emailed two items of correspondence from Mr Kershaw on behalf of TMCA to Mr Tainsh. Ms Slattery arranged for the two items of correspondence to be sent as letters by courier to Mr Tainsh's home address the next day.[24] The first letter was a "Notice of Suspension"[25]. The Notice of Suspension stated that a meeting had been scheduled for that same day, which Mr Tainsh was unable to attend due to the unavailability of his union representative, and that Mr Tainsh was suspended with pay effective immediately. The Notice of Suspension states inter alia that allegations that may amount to breaches of Mr Tainsh's contract of employment had been made to TMCA by an anonymous whistle-blower by confidential disclosure on the TMCA STOPLine and provided as follows:

"According to the information received by TMCA, the allegations can be broadly identified as follows;

• You previously had a personal relationship with a team member, April de Leon, which ended approximately 6-8 months ago. Since the end of this relationship, you have engaged in harassment of Ms de Leon, which caused Ms de Leon to resign on 18 January 2016,
• You have engaged in favouritism towards certain female team members on the Afternoon Shift in Paint Shop with whom you have had personal relations. It is alleged that in exchange for sexual acts, you have favoured these team members providing them (with the co-operation and involvement of your Group Leader, Homer Abarra) with benefits such as overtime, additional leave days, preferred job allocations and preferred toilet breaks
• You have engaged in sexual acts at the workplace with a number of female team members from the Afternoon shift in Paint Shop; and

• You have favoured "pretty young females" in the recruitment component of your role as General Foreperson."[26]

[31] The second item provided to Mr Tainsh was a letter informing him that allegations regarding inappropriate behaviour, sexual misconduct and sexual harassment in the workplace had been made against him and TMCA had engaged an independent investigator to conduct a confidential investigation into those allegations. The letter outlined the key requirements set down by TMCA to be applied to Mr Tainsh participation in the investigation being co-operation, confidentiality and no victimisation.[27]

[32] On 29 January 2016 Mr Tainsh, accompanied by Mr Darren Dwyer from the AMWU attended another meeting with Ms Slattery and Mr Kershaw to discuss the allegations. At the meeting it was confirmed that the allegations were to be investigated by Frances O'Brien QC. Ms O'Brien QC conducted the investigation over the period from 1 February to 14 March 2016, interviewing 15 employees in addition to Mr Tainsh and Mr Abarra.

[33] On 12 February 2016 Mr Dwyer wrote to Ms Slattery on behalf of Mr Tainsh setting out his concerns as to some of the processes engaged by TMCA in conducting the investigation into the allegations against Mr Tainsh. Mr Dwyer claimed the investigation process was flawed and being undertaken contrary to the terms of the Workplace Agreement. Mr Dwyer notified TMCA that the matter was in dispute in accordance with the Dispute Avoidance Clause in the Workplace Agreement.[28] Ms Slattery responded to Mr Dwyer's concern in writing on 15 February 2016.[29]

[34] On 19 February 2016 Mr Tainsh and Mr Dwyer attended a meeting with Ms O'Brien QC. Mr Tainsh submitted that Ms O'Brien QC was aggressive and intimidating and he formed the view that Ms O'Brien QC was not approaching the investigation with genuine impartiality.[30]

[35] On 24 February 2016, the AMWU filed a Form F10 Application for the Commission to deal with a dispute in relation to the investigation into the allegations against Mr Tainsh. The parties exchanged correspondence over the following three day period and the matter was the subject of a conciliation conference held on 9 March 2016. The application was not resolved.[31]

[36] In accordance with correspondence sent by Ms Slattery on 1 March 2016 Mr Tainsh was given access to the workplace to obtain information pertaining to his responses provided to Ms O'Brien QC at the 19 February 2016 meeting. On 2 March 2016 TMCA provided Mr Tainsh with access to his workplace filing cabinets and the TMCA Altona front office for the specific purpose of locating the documents listed in the correspondence.[32]

[37] On 10 March 2016 the AMWU issued to TMCA by way of written correspondence Mr Tainsh's responses to the allegations against him with attached supporting evidence based on his understanding of the interview questions put to him by Ms O'Brien QC.

[38] On 24 March 2016 the investigation was postponed until 10 April 2016 due to TMCA's scheduled maintenance shut down.

[39] On 13 April 2016 Mr Tainsh attended a meeting with Ms Slattery and Mr Kershaw. Mr Tainsh was provided with a letter which contained an excerpt of the findings made against him.[33] The letter states (amongst other things);

"As you are aware, given the serious nature of the initial allegations made against you, an external investigator, Ms Fran O'Brien QC, was engaged to conduct a confidential investigation into these matters. This investigation has now concluded. Ms O'Brien QC has made findings which address several allegations made against you throughout the course of the investigation. Specifically, the findings address the allegations that;

1) you authorised various periods of leave for Ms April de Leon (nee Aban) including unpaid sick leave and leave without pay, in circumstances where Ms de Leon was not entitled to such leave in accordance with Toyota's policies (Tainsh Allegation 1)

2) you and Ms de Leon were in a relationship at the time you authorised the periods of leave (Tainsh Allegation 2)

3) you renewed Ms de Leon (nee Ms Aban's) TFT Contract on a number of occasions because you were in a relationship with her, while failing to have regard to:

• The significant issues with Ms Aban's performance and level of absenteeism;

• Toyota's TFT renewal policy requirements (Tainsh Allegation 3)

4) you authorised Ms Chantelle Ngo to take 6 weeks of unpaid leave:

• Despite Ms Ngo having other leave entitlements available; and
• Without requiring a medical certificate; and
• Because she was a friend (Tainsh Allegation 4) and

5) you had been alone with Ms Chantelle Ngo in the lunch room with the lights off during ordinary hours (Tainsh Allegation 5)"[34]

[40] Ms O'Brien QC found each of the above allegations substantiated.

[41] TMCA formed the preliminary view that Mr Tainsh had engaged in conduct which breached his employment obligations under the Workplace Agreement and TMCA's policies and procedures, including the 'Leave Without Pay Policy' (the LWOP Policy) and the 'Workplace Relationships Policy and Procedures".[35] Mr Tainsh was requested to show cause in writing by 5:00pm on 15 April 2016 as to why his employment with TMCA should not be terminated. The AMWU on behalf of Mr Tainsh requested TMCA provide an extension of time for the response to be provided and TMCA did not object. On 29 April 2016 the AMWU on behalf of Mr Tainsh provided written responses to the show cause letter vigorously denying the allegations.[36]

[42] On 17 May 2016 Ms Slattery wrote to Mr Tainsh informing him that TMCA had reviewed and considered his responses to the show cause letter and the allegations contained therein and he was requested to attend a scheduled meeting and be prepared to respond to any additional questions TMCA may have about his written responses.[37]

[43] On 20 May 2016 the AMWU wrote to Ms Slattery informing her that Mr Tainsh would be present at the meeting on the understanding that the meeting was for the purpose of Mr Tainsh being able to provide any necessary clarification concerning his responses to the existing allegations and that any fresh allegations should be put in writing to Mr Tainsh in advance of the meeting.[38]

[44] On 23 May 2016 the meeting proceeded with Ms Slattery, Mr Kershaw and Mr Dwyer all in attendance. The matters discussed were the investigation findings and other matters relevant to the allegations.[39]

[45] Mr Tainsh attended another meeting on 2 June 2016 with Ms Slattery and Mr Kershaw, and again Mr Dwyer was in attendance. Mr Tainsh was dismissed during that meeting and was provided with correspondence from Mr Kershaw notifying him of the immediate effect of the dismissal. The notice of termination letter states the following as the reasons for the decision to dismiss Mr Tainsh;

• Unacceptably failed to perform your supervisory duties as General Foreperson in a consistent and fair manner across the Paint Shop;
• Improperly exercised the power and authority held by you in your position as General Foreperson by favouring certain team members over others because of your personal relationships with these team members; and
• fostered an exclusionary culture within the Paint Shop and engaged in conduct which breached Toyota's Workplace Relationships Policy and Procedure and the Workplace Agreement.

Your conduct constitutes an unacceptable and serious breach of:

• Toyota's Workplace Agreement (including the 'Toyota Way', 'Teamwork Charter')
• Toyota's Workplace Relationships Policy and Procedure;
• Toyota's Leave Without Pay Policy; and
• Your duty of good faith to TMCA."

[46] In forming their decision to dismiss Mr Tainsh TMCA relied on their own inquiries and the findings of the investigation conducted by Ms O'Brien QC. In making their decision to dismiss Mr Tainsh TMCA took into account Mr Tainsh's seniority, that people management was key aspect of his role and that he was expected to effectively supervise the afternoon shift, yet had improperly exercised his authority and behaved in such a manner with Ms De Leon and Ms Ngo that he created a perception that they were favoured by management. TMCA also took into account that Mr Tainsh had not effectively managed Mr Abarra's behaviours and by his own conduct had contributed to the perception that management was indifferent or supportive of that kind of behaviour. Mr Tainsh submitted that in considering his alleged failure to effectively manage Mr Abarra's behaviours, TMCA was taking into account a further allegation which he referred to as "Tainsh Allegation 6".[40]

[47] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account whether there was a valid reason for the dismissal related to the person's conduct or capacity.

[48] The type of conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained by the High Court of Australia in Byrne v Australian Airlines Ltd.[41] McHugh and Gummow JJ explained 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."[42]

[49] The consideration prescribed by s.387(a) is whether there was a valid reason, and the Commission must satisfy itself of the validity of the reason and its factual underpinning. A valid reason is one that is one that is 'sound, defensible and well-founded.'[43]

[50] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[44] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees).[45]

[51] In cases relating to alleged misconduct, it is well accepted that the Commission must make a finding, on the evidence in the proceedings before it, whether, on the balance of probabilities, the alleged conduct occurred.[46] Where the misconduct is disputed the employer bears the onus of proving to the Commission on the balance of probabilities that the misconduct has taken place.[47] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[48]

[52] Mr Tainsh submitted that where allegations of misconduct are made the 'standard of proof' in relation to whether the alleged conduct occurred is the balance of probabilities, however he submits in assessing the factual allegations the principles in Briginshaw v Briginshaw (Briginshaw)[49] should apply.

[53] Usually the role of the Commission is to determine whether there was sufficient evidence that the alleged conduct occurred. The "standard of proof" in relation to whether the alleged conduct occurred is the balance of probabilities, however "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove".[50] In Briginshaw, the High Court stated that the balance of probabilities test requires the tribunal to:

"feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality...[A]t common law... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal."[51]

[54] Where the conduct involves serious misconduct, the principles applicable to the standard of proof established in Briginshaw may be relevant. Although the standard of proof remains the balance of probabilities, depending on the nature of the allegation the strength of evidence required to meet the standard of proof may change. As the High Court in Briginshaw noted, the nature of the relevant issue may necessarily affect the process by which reasonable satisfaction is attained and such satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences.[52]

[55] Mr Tainsh submits that where allegations of misconduct are made the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities, however he submits in assessing Tainsh Allegation 6 the principles in Briginshaw should apply.[53] I concur with Mr Tainsh's contention that he has been accused of serious misconduct. The reasons provided by TMCA for the dismissal were in connection to the serious allegations concerning his conduct involving Ms de Leon, Ms Ngo and Mr Abarra. The seriousness of Tainsh Allegation 6 affects the application of Briginshaw and accordingly this may require stronger evidence and the Commission will need to take into account the need to be properly satisfied of the proofs that the conduct occurred.

[56] During the hearing and again in its closing submissions TMCA sought to emphasise the importance of its Workplace Agreement, in particular the "Toyota Way" and its reliance on the "Toyota Way" in effecting the standards and behaviours expected of employees. The Toyota Way is expressly recognised in Clause 8 of the Workplace Agreement as follows;

"The Toyota Way expresses the shared values and required actions which TMCA Employees fulfil in order to achieve our success. The Toyota Way is an ideal, a global standard and provides a foundation for the people of the world-wide Toyota organisation. The concepts that make up the Toyota Way transcend language and nationality.

The Toyota Way is supported by two main pillars "Continuous Improvement" and "Respect for People". We are never satisfied with where we are and always improve our business by putting forth our best ideas and efforts. We respect people, including our customers, Employees and other stakeholders and believe the success of our business is created by individual efforts and good teamwork. All TMCA Employees, at every level, are expected to use these two values in their daily work and interactions."[54]

"The 'Toyota Way' represents the core values of Toyota as a global company. It is based on two key tenets: Challenge and Respect. The first tenet 'Challenge' relates to the organisation's commitment to 'Continuous Improvement' or 'Kaizen' in all aspects of the business. The second tenet 'Respect' benchmarks Toyota's global standard for all dealings with people."[55]

[58] Whilst Ms Box's evidence that the 'Toyota Way' formed the foundation of the workplace culture was unchallenged, Mr Tainsh submitted that the Commission in its assessment of the evidence should carefully and separately assess whether each of the separate allegations of misconduct have been proven by TMCA, and should be cautious not to merely consider whether the conduct was contrary to the company ethos expressed as the 'Toyota Way' as to assess the evidence at a higher level would be contrary to established principle.[56] Mr Tainsh accepted that he was aware of the Toyota Way and that he expected Mr Abarra to conduct himself in a manner that was consistent with the Toyota Way.[57]

[59] Finally, the Act requires me to consider whether there was a valid reason for dismissal. In the current matter there are several reasons advanced for the dismissal of Mr Tainsh however it is not necessary that all of those reasons be substantiated. Further, it is well-established that a valid reason need not necessarily be the one relied upon by the employer.

[60] I will now examine the reasons for the dismissal connected to the conduct of Mr Tainsh to determine whether I am persuaded that Mr Tainsh committed some or all of the relevant conduct, and whether any such conduct constitutes a valid reason.

[61] In addition to the reasons for the dismissal set out in the termination letter TMCA state that they had placed a high level of trust in Mr Tainsh as a General Foreperson with significant authority and that he was expected to demonstrate competent supervisory abilities and leadership in relation to TMCA's workplace culture, workplace policies, the Workplace Agreement and the 'Toyota Way'. The letter states due to Mr Tainsh's conduct TMCA had lost trust and confidence in his ability to perform his role as General Foreperson and that Mr Tainsh had unacceptably failed to meet the standards and behaviours expected of him.

[62] In their final submissions, Mr Tainsh and TMCA each addressed the reasons for dismissal set out in the termination letter albeit in different ways. TMCA's approach was to address the alleged conduct in broad statements as particularised in the letter of termination and more generally as; favouritism towards Ms April de Leon and favouritism towards Ms Chantelle Ngo.

[63] In his submissions Mr Tainsh understood the reasons for his dismissal to be each of the allegations set out in the 'show cause' letter.[58] Mr Tainsh submitted in terminating his employment TMCA relied on each of the allegations from Ms O'Brien QC's findings and addressed each of those allegations as a separate matter. In addition to those allegations Mr Tainsh submits that when deciding to dismiss him TMCA took into account an additional allegation that he had not managed Mr Abarra's behaviour.[59]

[64] In order to understand in full some of the reasons TMCA relied on for the dismissal of Mr Tainsh it is necessary to outline the operational setting in which the alleged conduct took place as well as Mr Tainsh's management responsibilities and level of authority.

[65] Mr Tainsh and TMCA filed an agreed statement of facts submitting that the General Foreperson was the most senior classification in the Workplace Agreement.[60] The evidence of Mr Tainsh was that the agreement provides for a Senior General Foreperson, however the General Foreperson was the most senior classification in which employees had been engaged under the Workplace Agreement at the time of his dismissal.[61] It was uncontested that the organisation chart submitted by Mr Kershaw was evidence that the role of General Foreperson was the highest supervisory position covered by the Workplace Agreement in which an employee had been engaged by TMCA at the time of Mr Tainsh's dismissal.[62] The Workplace Agreement at Appendix 5 Classification structure, clause 2.6 provides that the General Foreperson is;

"responsible for the supervision of trade and/or non-trade wages employees in the work functions described in level 1 in the Workplace Agreement, and performing management functions as directed by the senior general foreman and/or section manager."[63]

[66] Mr Tainsh accepted that as General Foreperson he had overarching supervisory responsibilities for approximately 69 team members[64] and that in his capacity as General Foreperson and Union delegate he was one of the most senior escalation points in the Paint Shop.[65]

[67] The role of General Foreperson sits directly above the Group Leader role in the organisational structure of the Paint Shop.[66] There are two General Forepersons rostered on each shift in the Paint Shop, being the Production General Foreperson and the Quality General Foreperson. As the Production General Foreperson Mr Tainsh had overarching supervisory responsibility for the Paint Shop which included the Sealer Group. There are two shifts worked on the sealer line, the day shift and the afternoon shift (also referred to as 'the PM shift'). The PM shift commences at 5:30pm and finishes at 2:00am. Mr Tainsh was the most senior position on the PM shift after 10:00pm and Mr Abarra, the Group Leader, reported to Mr Tainsh. Mr Abarra was dismissed on the same day as Mr Tainsh for serious misconduct after TMCA conducted an investigation into a number of allegations involving inappropriate conduct of a sexual nature in the workplace. Those allegations and the dismissal of Mr Abarra are the subject of a separate decision.[67]

[68] The perception held by some of the witnesses was that in the workplace, at the very least, Mr Tainsh and Mr Abarra were "good friends" and that if one was to complain about Mr Abarra to Mr Tainsh they would jeopardise their employment.[68] The evidence before me in these proceedings was that employees understood the hierarchy of management to be that Mr Tainsh managed Mr Abarra and that there was really no authority beyond Mr Tainsh.[69] This has particular relevance in that Mr Tainsh held a role as both delegate and manager and a number of the TFT employees thought they risked losing their employment if they raised a complaint about Mr Abarra to Mr Tainsh or anyone else at TMCA.[70] Mr Tainsh by his own evidence tended to be the focal point for advice when people had issues.[71]

[69] The allegations against Mr Tainsh involved two TFT employees working in the Sealer Group. Those employees reported directly to Mr Abarra. For that reason I set out below the role of Mr Tainsh in approving TFT contracts.

[70] Mr Abarra gave evidence that Mr Tainsh was responsible for either approving or rejecting his recommendations to either renew or not renew an individual's contract.[72] Mr Kershaw's evidence was that Mr Tainsh was ultimately the person with the authority to decide whether or not the TFT contract was renewed. Mr Kershaw provided email correspondence in which Mr Tainsh had informed Mr Brendon McFadden, the Organisational Planning Co-ordinator, of his decision to approve and reject the extension contracts at various times for TFT employees.[73]

[71] Mr Tran's evidence was that the renewal process for TFT contracts was by way of recommendation from Mr Abarra to Mr Tainsh and Mr Tainsh held the authority of either accepting or declining the proposed recommendations put forward by Mr Abarra. Mr Nin, Mr Abera and Mr Tran's evidence on this matter was consistent with Mr Kershaw's being that Mr Tainsh had the ultimate responsibility of accepting or rejecting Mr Abarra's recommendations, Mr Tran however was unsure of the process after that.[74] Mr Nguyen's evidence was that Mr Tainsh was the person who decided who was employed or not.[75] Mr Vadala gave similar evidence that it was the General Foreperson's role to accept or decline the recommendations made by the Group Leader.[76] If Mr Vadala was satisfied that the assessments have been done by the Group Leader, and then if Team Members fit the criteria, he would then sign the renewal. After Mr Vadala's involvement HR would confirm that the person was being hired and formulate the letter/contract.[77]

[72] Mr Tainsh disputed that he held the authority for approving the hiring of TFTs and submitted that it was ultimately the responsibility of HR.[78] Mr Tainsh's evidence was evasive on this matter and he tended to give answers that avoided answering the question. He frequently responded that he had "a role" however in his opinion not a "substantial role" when it came to the renewal of TFT contracts. However Mr Tainsh's evidence in cross-examination was;

"Yes, I take the bit of paper. I give it to Carlo. I have a look at it. I want to see if the person is being renewed or not, whether they're recommended to be renewed or not because if they're not then I need to organise a replacement person. So that's an important part of my role, you know? So I've got to be aware, "This person is not going to be renewed, we're going to need somebody else to replace this person."[79]

[73] Contrary to Mr Tainsh's oral evidence, being that he did not have a substantial role in approving TFT contracts, his witness statement provided that he had made the decision to re-employ Ms de Leon.[80] He also submitted that supervisors were given instructions from management and HR that, when considering renewal of contracts, the supervisors should review leave attendance records during which time they should consider if the employee has complied with the "Reason", "Notification" and "Proof/Documentation" requirements of the Workplace Agreement and if the employee has been compliant, that is authorised and within standard then no action is to be taken."[81] He conceded during cross-examination that he was involved in the renewal of Ms de Leon's TFT contract however disagreed that he had renewed her contract because of his relationship with her.[82] Mr Tainsh also gave evidence during cross-examination that Mr Vadala relied on him when approving the renewal of a TFT contract.[83]

[74] On the evidence before me I am satisfied that Mr Tainsh did play a significant and influential role in the decision to approve or not approve the renewal of TFT contracts. Mr Vadala simply signed off on Mr Tainsh's decision as to whether or not he would approve the renewal of a TFT contract. Mr Tainsh corresponded directly with the HR department in arranging the renewal of contracts and did not rely on Mr Vadala in doing so. The evidence before me on this matter is that HR's role in the decision making process for the hiring of TFTs is purely administrative. The HR function simply administered the process after Mr Tainsh and Mr Vadala had exercised their authority in the process.[84]

Tainsh Allegation 1 - Inappropriate grants of leave to Ms de Leon; Tainsh Allegation 2 - In a relationship with Ms de Leon at the time the leave was authorised

[75] TMCA submitted that Mr Tainsh had granted two periods of leave without pay to Ms de Leon in circumstances when she was not entitled to the leave because of his personal relationship with Ms de Leon. The first period of leave was from 21 October 2013 to 1 November 2013, a total of 10 working days. The second period of leave was from 29 January 2014 to 12 February 2014, a total of 10 working days. TMCA relied on Ms O'Brien QC's findings to reach its conclusion that Mr Tainsh had been in a relationship with Ms de Leon at the time of granting the leave and that the relationship had since ended. Ms O'Brien QC's findings relied on the evidence of Mr Aban in establishing that a sexual relationship had commenced sometime in late 2013 or early 2014 when Ms de Leon left the family home and had ceased sometime around late 2015.

[76] Ms de Leon submitted that she commenced her employment with TMCA sometime in 2009, whilst Mr Tainsh recalls it to be sometime around 2011. At the time she commenced her employment Ms de Leon was married to Mr Aban who was also working for TMCA. Mr Aban and Ms de Leon both worked in the Sealer Group. It is not in contention that Ms de Leon's first period of employment with TMCA was cut short due to medical reasons and she was subsequently rehired again in 2013.[85]

[77] Mr Tainsh disputes Ms O'Brien QC's findings that his relationship with Ms de Leon commenced prior to August 2014 and ended sometime prior to March 2015. Mr Tainsh's evidence was that for nearly twenty years he frequented a nearby pub (the West End Hotel in Sunshine) after work. His evidence was that the pub was frequented by many others from TMCA and he recalls Ms de Leon attending with her husband prior to their relationship ending sometime in 2013. After her relationship ended Ms de Leon only attended the bar for special events such as birthdays. Mr Tainsh submitted that he also stopped going to the pub after work sometime in mid-2013. He submitted that in August 2014 he encountered Ms de Leon at a bar in Fitzroy and they formed a relationship shortly thereafter.[86]

[78] Ms de Leon submitted that when she had been interviewed by Ms Slattery she had not been aware of the allegations that had been made against Mr Tainsh and during the interview she denied having a relationship with him.[87] Once she became aware of the allegations she contacted Ms Slattery and advised her that she was in fact in a relationship with Mr Tainsh and subsequently resigned from her employment with TMCA because she felt uncomfortable with TMCA making inquiries into her personal life and the problems that may arise with her ex-husband as a consequence.[88]

[79] Mr Tainsh provided evidence of his ongoing relationship with Ms de Leon, including photos of family celebrations said to have been taken during February and March of 2015 and an itinerary and passport evidence of overseas holidays together during the period of December 2014 to January 2015. Mr Tainsh also submitted Ms de Leon's general practitioners mental health care plan completed in July of 2015 which states that Ms de Leon was in a new relationship and this had been the case for a period of 12 months.

[80] Mr Tainsh disputes the allegation that he had provided Ms de Leon with an excessive amount of leave and granted that leave contrary to TMCA's LWOP policy. The LWOP Policy provides that the following criteria will be applied when considering an application for LWOP:

• Be a permanent employee; and
• Have a minimum of 12 months continuous service with TMCA; and
• Possess a satisfactory work performance record (to be determined by the employee's manager/supervisor); and

• Have exhausted all available RDOs, Annual Leave and Long Service Leave."[89]

[81] The LWOP policy outlines the procedural steps that must be taken as follows:

1. The employee must submit a written application stating the reason for the request to their supervisor/manager and apply for leave via ESS.

2. The leave should be approved/not approved by the employee's Divisional Manager after consideration of operational requirements.

1. The employee must submit a written application stating the reason for the request and apply for leave by completing their Leave Card and attaching the written LWOP request.

2. The leave should be approved/not approved by the employee's Divisional Manager after consideration of operational requirements.

3. Once the leave is endorsed by the Divisional Manager, the Supervisor should authorise the Leave Card and enter the leave on the Timesheet available in MSS."[90]

[82] TMCA submit that by granting the first period of paid leave Mr Tainsh failed to comply with the TMCA leave policy because there was no recorded notification by Ms de Leon, as required by the Workplace Agreement, to justify the grant of unpaid sick leave and that Ms de Leon was in fact not entitled to unpaid sick leave.[91]

[83] The Workplace Agreement at "Clause 70. Sick/Carer's Leave" states that sick/carer's leave will be authorised when the conditions for 'Reason; Notification and Proof/Documentation' are satisfied. The Workplace Agreement provides the following;

Sick/Carer's Leave will be authorised when the conditions for 'Reason', 'Notification' and 'Proof/Documentation' are satisfied.

Employees are entitled to 10 days of Sick/Carer's Leave per year.

Sick/Carer's Leave is cumulative from one year to the next.

NOTE: There are a maximum number of days an Employee can be absent without a medical certificate during any one year of service. This varies with length of service (refer to 'Proof/Documentation' below).

• Personal illness - Employee is sick or injured; or
• The need to provide care to an immediate family member or member of the Employee's household.

• Prior notification of absence should be made when known, to allow Supervision to manage labour availability.
• Acceptable notification is as soon as practicable and during the ordinary hours of the first day or shift of such absence.
• Where it is not practicable to advise of absence within ordinary hours an Employee must advise within 24 hours of absence.

In all cases, medical certificates must be issued and signed by an authorised person, and must not have been altered. The medical certificate should identify the medical need, expected duration and the Employee making the claim or Immediate Family member that the Employee is required to provide care for. Retrospective medical certificates or any other documentation will not be accepted.

When an Afternoon Shift Employee cannot obtain a medical certificate on the actual day of absence, the medical certificate issued must make reference to the actual period of absence.

Carer's Leave, proof must be provided on all occasions:

• A medical certificate or statutory declaration may be submitted as proof of the need to provide care to an Immediate Family member or member of the Employee's household.
• In such cases, the medical certificate or statutory declaration must identify the medical need, expected duration and identify the person is a member of the Employee's Immediate Family or household, and the Employee is required to provide care for the person.
• A maximum of ten days in a twelve month period (in accordance with an Employee's anniversary date) may be covered by statutory declarations as proof.

Proof will always be required where the guidelines are not complied with, and in the following circumstances:

• The absence is for 2 or more working days in a row and acceptable notification has not been provided
• The absence is immediately before or after annual leave or a Public Holiday
• The Employee has a current written warning or formal counselling for absenteeism
• The Employee has already had one or more absences, without proof, on the day before or after an RDO/PDO, in the preceding 12 months.

70.4 Maximum Number of Days without Proof (for Personal illness only)

If the Supervisor does not require proof as above, the following table outlines the maximum number of days Employees may be absent without proof.

Note: The above table does not apply if guidelines are not complied with and therefore an Employee is required to always submit proof."

[84] TMCA submit for the second period of leave Mr Tainsh failed in his duty to supervise the granting of LWOP in circumstances where Ms de Leon had already taken 22 days of leave other than annual leave in the previous 12 months and was still eligible for 3 days of annual leave. TMCA submit the material in support of Ms de Leon's taking of LWOP referred to Ms De Leon having to look after her children whom she had shared responsibility with Mr Aban and that the children were looked after 50% of the time by Mr Aban's parents, therefore disputing the legitimacy of the application.

First period of leave 21 October to 1 November 2013

[85] TMCA submit the first period of leave granted to Ms de Leon was entered into the handwritten records as leave without pay, whilst in the electronic leave records it is unpaid sick leave.[92]

[86] Mr Tainsh denied that he was responsible for approving leave. He further submitted that the Workplace Agreement at clause 70 provided that as long as the application for leave has met the requirements of the Workplace Agreement then, regardless of the leave balance or whether the leave is to be unpaid or paid leave, the leave is to be authorised. He also submits where absences have been authorised they are to be considered genuine and should not be used to discriminate against TFTs.[93]

[87] Mr Kershaw's submitted that a key part of the General Foreperson's role was to manage labour and leave allowances in relation to the employees under their control and that the General Foreperson is responsible for ensuring that those employees are compliant with the leave policies.[94]

[88] Mr Nin's evidence was that leave applications would go to the Group Leader who would discuss the leave with the General Foreperson. The leave applications would then be discussed with Mr Vadala prior to being returned to the Group Leader for processing. Mr Nin submitted it was the Group Leader who was ultimately responsible for entering leave into the system.[95]

[89] Mr Abera gave evidence of a similar nature explaining that if the application was for leave without pay the General Foreperson would take the application to Mr Vadala who would sign off on the leave if it was to be approved.[96] He also gave evidence that there was a particular concern that employees were to be left with enough annual leave for the shut-down periods, therefore leave without pay was granted even in circumstances where an annual leave balance was available to be utilised.[97]

[90] Mr Vadala's oral evidence was that the Group Leader does the first assessment of the leave application and then it is reviewed by the General Foreperson. The General Foreperson then meets with Mr Vadala before he signs off on the leave application being granted.[98] Mr Vadala evidence was that when he looks at hardship cases he does not look at the requirement for the employee to have served 12 months of employment before granting that leave.[99]

[91] Mr Tainsh denied that he had been responsible for approving Ms de Leon's leave for the period of 29 Oct to 1 November 2013.[100] He also disputed that he was responsible for altering the leave records in the leave system, submitting that once the leave is entered into the electronic time recording system he is not able to change those records, with only the payroll office able to make such amendments. He submitted that TMCA were well aware of the system constraint[101] and TMCA did not contest Mr Tainsh's submission on this matter.

[92] Mr Tainsh submitted Ms de Leon had taken the first period of leave as sick leave due to illness. As part of his evidence Mr Tainsh submitted a copy of Ms de Leon's medical certificates stating she was unfit for work for the first period of leave.[102] Mr Tainsh submits that Ms de Leon's leave card refers to those certificates however TMCA informed him they were unable to locate the certificates.

[93] Mr Tainsh submitted that there had been a number of employees with less than 12 months' service who had had leave without pay granted and that supervisors have always had the ability to make discretionary decisions when it came to the granting of leave without pay. He provided leave cards for a number of employees where leave had been granted without the required documentation.[103]

[94] Ms de Leon's evidence was that she would direct her leave enquiries and absences from work notifications to Mr Abarra. Ms de Leon submitted that she was not aware that the leave for the first period had been entered in as leave without pay and stated that she did not expect to get paid as she had already exceeded her leave entitlements.[104]

[95] Mr Abarra's evidence was that he was responsible for the day to day management of leave applications for team members who reported directly to him. Mr Abarra also submitted that he was responsible for filling out the leave card and the electronic payroll system records and not Mr Tainsh.[105] On a number of occasions Mr Abarra and Mr Tainsh had sent emails to payroll requesting they address issues with Ms de Leon's leave in the electronic system because they had been unable to enter the details.[106]

[96] Mr Abarra submitted that on the first leave occasion Ms de Leon had submitted medical certificates as documentary evidence of her sick leave. The electronic leave system only provided two options, leave without pay or unpaid sick leave without a certificate and as he had received a certificate from Ms de Leon he entered the sick leave into the system as leave without pay. He submitted that he informed Mr Tainsh and Mr Tainsh subsequently sent a pay query to payroll. Mr Abarra further submitted that once leave has been entered into the system it cannot be changed by "front end users".[107] His evidence was that there had been a number of issues with the recording of Ms de Leon's leave and provided evidence of system enquiries where, on numerous occasions between 13 February 2014 and 19 May 2014, he had made requests to payroll for assistance with the entering of RDOs and leave due to the system not permitting him to do so.[108]

[97] Mr Abarra also submitted system requests made by Mr Tainsh between 30 May 2014 and 22 July 2014 where further enquiries were made as to the problems with entering leave. The enquiry dated 8 July 2014 by Mr Tainsh sates the following;

"As per last weeks pay query I am unable to input sick leave into time sheet for 1st, 2nd & 3rd july. MDT shows employee sick balance is 5 6 days but when I try to input I get the message "employee does not have enough quota for absence"

Could you please escalate this to Systems and Reporting to get fixed once and for all"[109]

[98] On 22 July 2014 Mr Tainsh sent another enquiry stating that he was still unable to enter Ms de Leon's sick leave into the system and requested further sick leave be entered for 17, 18 and 21 July 2014.[110] On 15 August 2014 Mr Tainsh received email correspondence from a payroll officer confirming that the issue of not being able to enter leave for Ms de Leon (nee Aban) via MSS had been rectified.[111]

Second period of leave 29 January to 12 February 2014

[99] TMCA submit with respect to the second period of leave Mr Tainsh failed in his supervisory duties by granting the 10 days of leave without pay to Ms de Leon when she had already taken 22 days of leave other than annual leave in the previous nine months and was still eligible for three days of annual leave.[112]

[100] TMCA submitted that during the investigation they were unable to locate a leave application for the second period until Mr Tainsh produced an application in response to the allegations made against him. TMCA doubted the validity of the documentation and submit that the supporting materials relied by Ms de Leon in her application for leave made reference to Ms de Leon needing to care for her children which had been disputed by Mr Aban.[113] Mr Aban was not called to give evidence during the hearing.

[101] On 1 March 2016 Ms Slattery wrote to Mr Tainsh stating, amongst other things, that during his interview with Ms O'Brien he had asserted that there were certain documents stored in his workplace filing cabinet which support his response to the allegations, the documents referred to included;

• Applications for leave without pay and personal leave made by Ms de Leon, for the time period of 2013-2015

• Copies of any medical records or certificates received by Mr Tainsh in support of Ms de Leon's leave applications, for that same time period

[102] Ms Slattery's evidence was that Mr Tainsh was provided with access to the filing cabinet on 2 March 2016 to obtain the documents he had referred to during the interview with Ms O'Brien.[114]

[103] Mr Tainsh subsequently produced a copy of Ms de Leon's leave application for the second period. On the back of the leave application was a hand written note signed by Ms de Leon stating;

I'm a single mum of 2 young children of ages 3 and 2. At the moment whilst I'm at work my children are taken care of by my mother. On 30th Jan 2014 my mother will be undergoing an operation that will require me to care for her and my children.

This situation has brought me to request assistance from paint shop management in requesting leave to care, assist and support my mother and my children at the time of need. I hope paint shop management can understand and support me on my request."[115]

[104] In addition to the leave application Mr Tainsh submitted a letter to Ms de Leon's mother from Werribee Mercy Hospital stating that she was scheduled for an operation to take place on the morning of 30 January 2013.[116]

[105] Ms de Leon's evidence was that she needed to take leave without pay between 29 January 2014 and 12 February 2014 in order to care for her mother who was undergoing an operation.[117] Ms de Leon submits that she sought assistance from a union delegate in preparing a "hardship letter" for Mr Vadala's consideration. The application form provided by Mr Tainsh appears to bear Mr Vadala's signature.[118]

Tainsh Allegation 3 - Inappropriately renewing Ms de Leon's TFT contract

[106] TMCA submit that Mr Tainsh had inappropriately renewed Ms de Leon's TFT contract in circumstances where she had taken excessive amounts of leave and that in typical circumstances Ms de Leon's contract would be unlikely to have been renewed by management.

[107] It was not in contention that Ms de Leon had taken excessive leave throughout her various tenures with TMCA. Mr Tainsh submitted a leave summary deduced from the TMCA payroll data[119] and the accuracy of this leave summary analysis was not contested by TMCA.

[108] The data set produced was in hours per year for 2013, 2014 and 2015. Leave was listed by category; annual leave, annual leave in advance, compassionate leave, RDO's taken, LWOP Company, LWOP Employee, paid sick leave no certificate, paid sick/carers leave with certificate, unpaid sick leave without certificate unpaid sick/carers leave without certificate, unpaid absences unauthorised. LWOP Company was explained to be incidences where TMCA had forced employees to take leave for reasons that included shutdowns.[120]

[109] Ms de Leon's leave was recorded as follows;

• 40hrs Annual leave
• 48hrs RDO's taken
• 16hrs LWOP company
• 176hrs Unpaid sick/carers with certificate
• 4.05hrs unauthorised absences

• 104hrs Annual leave
• 32hrs Annual leave in advance
• 64hrs RDO taken
• 87.08 LWOP employee
• 127.77 Paid sick/carer's with certificate
• 152.23 unpaid sick/carer's with certificate
• 22.63 unpaid absence unauthorised

• 136hrs Annual leave
• 16hrs Annual leave in advance
• 104hrs RDO's taken
• 72hrs Paid sick/carers leave with certificate
• .08hrs unpaid absence unauthorised
• 38.12 unpaid sick/carers leave with certificate

[110] In 2013 Ms de Leon was absent for a total of 35.5 days, 22 days of which were unpaid sick/carer's leave with medical certificates and half a day of unauthorised leave. Ms de Leon was the second highest ranking employee for the amount of unpaid sick/carer's leave with certificate, with Mr Rehman being the highest with a total of 45.1 days or 360.92 hours of sick/carer's leave taken. Mr Rehman had also received 11.5 hours of LWOP and 79.08 hours of sick/carers leave with certificates.

[111] During 2014 Ms de Leon was absent for a total of 71.67 days, 10.88 days of which were LWOP and 15.9 days of paid sick/carers leave with medical certificates and 19.02 days of unpaid sick/carers leave with certificates. During this same period Ms Ngo had taken 282.78 hours or 35.34 days of LWOP, far exceeding the amount Ms de Leon had taken. Ms Pineda took 30hrs or 3.75 days of LWOP and Mr Nguyen took 21.93 hrs or 2.74 days of LWOP.

[112] In 2015 Ms de Leon had been absent for a total of 45.77 days, 2 days of which were annual leave taken in advance. Ms de Leon also took 4.75 days unpaid sick/carers leave with certificates. Ms Vasilije took 88.93hrs of LWOP, whilst Ms Toos took 208hrs of LWOP.

[113] Mr de Leon's evidence was that Mr Abarra met with her to discuss her contract renewal and during that interview he raised the issue of the amount of sick leave she had taken however commented that she had complied with the Workplace Agreement by providing appropriate notification.

[114] Mr Tainsh's evidence was that he had discussed Ms de Leon's absenteeism with Mr Abarra and Mr Abarra had informed him that she had always complied with the notice and evidence requirements of the Workplace Agreement.[121] His evidence in chief was as follows:

"For someone to say her absenteeism was high and her contract should not have been reviewed is a personal opinion, but based on the WPA and the assessment criteria we have been given April was within standard, and should not affect her contract being renewed as all absences were accepted as authorised by TMCA.

As supervisors we are told to follow the rules, that is our job whether we personally agree or had a differing opinion we follow the WPA to protect ourselves, remembering we are held accountable for what we do from both the TMCA and the employee/and their union shop steward so we need to be able to justify any assessments against a set standard that is in writing, the only thing we have in terms of attendance standards is in the WPA.

As a supervisor the references we have to manage and judge attendance standards of behaviour are contained in the WPA clause 33.3 Attendance Standards of Behaviour they outline acceptable and unacceptable behaviours."[122]

[115] The assessment criteria set out in the Managing, Assessing, & Developing Team Members at TMCA resource guide for Supervisors and Managers submitted by Mr Tainsh contains the following criteria for assessment of TFT employees;

• Time and attendance

• Safe work

• Standardised Work & Diligence

• Respect, Flexibility & Teamwork

[116] The guide provides that the General Foreperson has the responsibility of being an assessor on the assessment panel, creating performance development plans, delivering employee feedback through the annual feedback session and scheduling the annual feedback sessions. The role of the Group Leader was to collect and record evidence of performance throughout the year to ensure fair and accurate assessment.[123]

[117] Mr Tainsh submitted a copy of Ms de Leon's 2015 Team Member Assessment, being a review for further work if available and applicable, completed and signed by Mr Abarra. Each of the following criteria in the assessment were marked as acceptable behaviours:

• Team work

• Job fit/motivation

• Work Habits & performance standards

• Communication

• Problem Identification

• Attendance standards of behaviour

• OH&S standards of behaviour

• Co-operation

• Participation in Work Conditioning program.

[118] Mr Abarra did mark that Ms de Leon's high absenteeism was unacceptable behaviour, however still recommended her for future employment.[124]

Tainsh Allegation 4 - Inappropriate grant of leave to Ms Ngo

[119] TMCA alleged that Mr Tainsh favoured Ms Ngo by granting her leave without pay contrary to the requirements of the LWOP policy because he had a special relationship with her.

[120] A number of the Respondent's witnesses gave evidence regarding the relationship between Mr Tainsh and Ms Ngo, describing them as being 'close' and Ms Ngo as Mr Tainsh's 'favourite'.[125] Evidence was also given of a perception that Ms Ngo could 'get away with anything' as she was 'protected' by Mr Tainsh.[126]

[121] It was alleged that Ms Ngo would regularly leave the production line while it was running to spend time with Mr Tainsh for periods of an hour or more at a time,[127] would escalate all issues immediately to Mr Tainsh,[128] and would spend time with Mr Tainsh in the group room with the lights off, which is discussed in further detail below.

[122] Mr Rehman gave evidence that he regularly saw Mr Tainsh and Ms Ngo talking to each other on the line or in the group room. On one occasion, he submits he saw Mr Tainsh sitting in the group room with Ms Ngo during their lunch break and never saw Mr Tainsh sitting in the group room with any other team members at lunch time.[129]

[123] He submitted that he found Mr Tainsh and Ms Ngo's relationship unusual as there is a big difference in seniority between a TFT and the General Foreperson[130], and that he did not see Mr Tainsh behave in the same manner with any other TFT or team member.[131] His evidence was that during 2013, on at least five or six occasions he saw Ms Ngo leave the production line walking in the direction of Mr Tainsh's office. On each of these occasions, he stated that after about thirty minutes Mr Tainsh would bring Ms Ngo back to the shop floor and sit with her in the group room for a further thirty minutes.[132]

[124] Mr Rehman described one particular occasion in 2013 when Ms Ngo left the line, advising the Team Leader that she was going for a medical. Thirty minutes later, when Mr Rehman left the line to find someone to replace Ms Ngo, he noticed her talking to Mr Tainsh in the group room speaking in a heated fashion. Ms Ngo subsequently returned to the line a further thirty minutes later.[133]

[125] Mr Rehman also submitted that at least three or four times over 2014 and 2015 he saw Ms Ngo walk off the production line because she was upset or angry, take her bag and walk in the direction of Mr Tainsh's office. On each occasion, he submitted Mr Tainsh would bring Ms Ngo back to the shop floor thirty minutes to an hour later and would go with her to the group room for a further thirty minutes before Ms Ngo would return to the line.[134]

[126] Mr Rehman also gave evidence of inappropriate conversations he observed between Mr Tainsh and Ms Ngo, such as Ms Ngo saying words to the effect of "I know how big you've got" in reference to Mr Tainsh's penis, as well various heated conversations they had in the workplace. Mr Rehman also gave evidence of a conversation he had with Ms Ngo prior to the birth of her child in 2014 when she said words to the effect of "when my child is born, I will show you a photograph and you will know who the father is", referring to Mr Tainsh. He submitted that when he asked Ms Ngo how she could talk like that she advised she was only teasing.[135]

[127] Mr Tainsh denied that the incidents described by Mr Rehman occurred or occurred as described. He submitted that all of the meetings he had with Ms Ngo were pre-arranged and that, as his office is in the same direction as the medical centre, change rooms and toilets, it was possible that Ms Ngo could have been going to any of those locations rather than his office. Mr Tainsh submitted that Ms Ngo would become upset at work and might sometimes say that she was going home or refuse to do overtime, at which point he would need to convince her to stay so that they could continue to run the paint shop. His evidence was that these discussions might take some time. He submitted that it would be unlikely that he and Ms Ngo would be in the group room for thirty minutes on each occasion that this occurred.[136]

[128] Ms Ngo denied that on each occasion that she left the line she would be "brought back" by Mr Tainsh and denied that they would sit in the group room for periods of thirty minutes. Her evidence was that she did not see Mr Tainsh very often and that most of the time when she left the line she would go to either the medical room or the toilet. She denied making any inappropriate comments to Mr Tainsh and denied speaking to him in a heated fashion.[137]

[129] Ms Vasilije's evidence was that she had had some issues with Ms Ngo and approached Mr Abarra approximately two months into her employment to arrange a meeting between them so that they could resolve them. Mr Abarra agreed to assist. Ms Vasilije submitted that Mr Abarra later approached her and advised that Ms Ngo wanted Mr Tainsh to be at the meeting. At the meeting, Ms Vasilije submitted that Ms Ngo did not respond to her, and that Mr Tainsh spoke on Ms Ngo's behalf, advising that Ms Ngo was just "being the way she is". Ms Vasilije found it strange that the General Foreperson would speak about a TFT in such a familiar way and defend her behaviour towards Ms Vasilije. She submitted that it struck her at this meeting that Mr Abarra, Mr Tainsh and Ms Ngo were all the same 'team'.[138]

[130] Mr Abarra disputed Ms Vasilije's version of events and submitted that he had approached Mr Tainsh himself to request assistance and that Ms Ngo did not request Mr Tainsh's presence. His evidence was that he would often ask Mr Tainsh to be involved if any issues arose between team members that he could not resolve himself. Mr Abarra also disputed that Mr Tainsh made the comments Ms Vasilije recalled and disputed that Mr Tainsh had spoken for Ms Ngo.[139]

[131] Mr Tainsh's evidence was that he understood that there were interpersonal issues between Ms Ngo and Ms Vasilije that Mr Abarra had attempted to solve, however Ms Ngo wanted to escalate the matter to himself. He confirmed that he had attended a meeting as described above however submitted that he did not make the comment alleged by Ms Vasilije and denied that he, Mr Abarra and Ms Ngo were acting as a team.[140]

[132] Ms Ngo's evidence was that when Mr Abarra advised that she should sit down with himself and Ms Vasilije to resolve the issues, she suggested that if it was such a big issue they should get Mr Tainsh involved. She denied that Mr Tainsh spoke on her behalf and denied that she was 'protected' by Mr Tainsh. [141]

[133] Ms Vasilije also gave evidence that Mr Tainsh and Mr Abarra would conduct a Standardised Work Check (SWC) once per week. Whilst they were meant to randomly select an employee to observe, Ms Vasilije submitted that they would usually select Ms Ngo for the SWC. Ms Vasilije's evidence was that she asked Mr Abarra why this was so, and he responded with words to the effect that Ms Ngo "shakes her arse when she applies the sealer, and me and Adrian like to watch".[142] Mr Tainsh and Mr Abarra denied this allegation.[143]

[134] Ms Souliyavong gave evidence that in late 2014, after a number of other young female TFTs started working in the paint shop, Ms Ngo seemed angry and on one occasion, when Mr Tainsh was speaking to these TFTs in the car park, said angrily to her 'why do they have to wait for him'.[144] Mr Tainsh's evidence was that he had no recollection of talking to any of the identified team members in the car park.[145] Ms Ngo denied that this incident occurred.[146]

[135] Ms Haciomer gave evidence that on one occasion, in late 2013 or early 2014, Ms Ngo and Mr Tainsh shared a meal from a large foil tray in the view of everybody who was in the group room at the time.[147] Mr Tainsh's evidence was that he recalled this incident however he was not the only person offered food at this time.[148]

[136] Mr Abarra's evidence was that he was not aware of any occasion upon which Ms Ngo left the line without permission.[149]

[137] Mr Tainsh submitted that the only relationship he had with Ms Ngo was an appropriate workplace relationship. His evidence was that he had generally friendly interactions with Ms Ngo but no more so than any other team member, and rejected any suggestion that he displayed favouritism towards her.[150]

[138] Mr Tainsh did acknowledge that Ms Ngo would come to see him more than other team members in the Sealer Group, and would make complaints to him regarding other team members. He submitted that his usual process when Ms Ngo came to see him would be to discuss matters and then, depending on the issue, return to the group area and discuss the matters with Mr Abarra.[151]

[139] In cross-examination Mr Tainsh conceded that he spent more time with Ms Ngo than the other TFTs in the Sealer Group and accepted that that may have created a perception that he had a special relationship with Ms Ngo.[152] He submitted that he sat with Ms Ngo alone in the group room on numerous occasions throughout 2013 and 2014.[153] He also gave evidence that Ms Ngo had attended his office a number of times in 2013 and 2014 and there were a few instances where he would return with her and go to the group room for a while before returning to the line.[154] Ms Ngo disputed this is cross-examination and submitted that she had never been alone with Mr Tainsh in the group room, had never returned to the Sealer Group with him after leaving the line and denied that Mr Tainsh spent more time with her than with the other staff in the Sealer Group. [155]

[140] Ms Ngo commenced working for TMCA on 13 April 2013 as a TFT.[156] She was granted LWOP from 3 March 2014 until 16 April 2014. Ms Ngo's evidence was that in March of 2014 she was experiencing some pregnancy related health issues which had caused her to take some time off work. She submitted that she realised she would need additional time off and approached Mr Abarra, her Group Leader, about the situation. Her evidence was that he advised that he would need to speak to Mr Tainsh.[157] Mr Abarra corroborated Ms Ngo's evidence.[158]

[141] Ms Ngo submitted that she then approached Mr Tainsh to discuss the situation. She submitted that he pointed out that she did not have sufficient paid leave available to her and would need to take LWOP. Ms Ngo stated that she then completed a leave form for LWOP, which Mr Tainsh took to discuss with the Manager, Mr Vadala. Subsequently, Ms Ngo's request for LWOP was approved.[159]

[142] Mr Tainsh submitted that he approached Mr Vadala to discuss Ms Ngo's request approximately seven days prior to a scheduled fifteen day maintenance shutdown. Mr Tainsh submitted that he and Mr Vadala determined that it made more sense for the business to grant Ms Ngo LWOP. Mr Tainsh submitted that he obtained a medical certificate from Ms Ngo and presented that to Mr Vadala along with Ms Ngo's LWOP application, which Mr Vadala signed.[160]

[143] Mr Vadala's gave evidence that he remembered the application and it was a hardship case in that Ms Ngo had a family issue. At the time of the application for LWOP Ms Ngo was towards the end of her contract and that Mr Tainsh had told him, "This is a good performer and she's got family needs. That's a hardship case. I think we should grant this leave". So on the basis of that he signed the leave application approving the leave.[161] Mr Vadala's evidence was the leave application made available to Ms O'Brien by Mr Tainsh was the same leave application he had signed approving Ms Ngo's leave.[162]

[144] Mr Tainsh's evidence was that the decision to afford Ms Ngo LWOP was made by Mr Vadala in consultation with himself and was granted for sound business and compassionate reasons.[163]

[145] Mr Kershaw submitted that the LWOP Policy requires that approval is given by the Divisional Manager at TMCA, in this instance Mr Rickarby, and that Mr Rickarby did not provide approval for Ms Ngo's period of leave without pay. He further submitted that the LWOP Policy requires that all other leave entitlements are extinguished before leave without pay is granted. [164]

[146] Mr Kershaw submitted that, whilst the relevant Group Leader has a role in the process for approving leave without pay, the recommendation for approval of the leave must be made by the General Foreperson after confirmation of labour requirements are met and other leave exhausted. He submitted that the role of Mr Vadala in this process is merely a 'checks and balances' type role to ensure the appropriate process has been followed.[165]

Tainsh Allegation 5 - Mr Tainsh had been alone with Ms Ngo in the lunch room with the lights off during ordinary hours

[147] Mr Rehman's evidence was that over the course of 2013 and 2014 he had observed Ms Ngo in the group room with Mr Tainsh with the lights off on at least three occasions. He gave detailed descriptions of these occasions and submitted that he remembered them as he found it very strange that Mr Tainsh and Ms Ngo were in the group room alone with the lights off. He submitted that he did not see Mr Tainsh in the group room with the lights off with any other team member.[166] Under cross examination he accepted that in relation to the first occasion he described, he did not know what Mr Tainsh and Ms Ngo were speaking about, and that they could have been speaking about work related matters.

[148] Mr Rehman gave further evidence that from 2013 until 2016 there were a number of other occasions where he saw Mr Tainsh and Ms Ngo go into the group room alone for extended periods of time, however he could not recall the exact details. He did submit that on each occasion that he witnessed this, Mr Abarra was outside the group room on the line and was not involved in their conversation.[167]

[149] Ms Rajaram gave evidence that she had seen Mr Tainsh and Ms Ngo go into the group room with the lights off. She submitted that on each of the occasions that she witnessed she was able to see that no one else was in the group room with them, and they would remain in the room for 30 to 40 minutes. She also submitted that on each occasion she saw Mr Abarra on the Shop Floor and not in the group room with Mr Tainsh and Ms Ngo. Ms Rajaram's evidence was that she did not know why the lights in the group room were off as she had never been in the group room with the lights off.[168]

[150] Ms Souliyavong gave evidence that she had witnessed Ms Ngo and Mr Tainsh in the group room on various occasions, and on three or four occasions remaining in there for fifteen minutes to one hour. Her evidence was that on almost all of these occasions the lights in the group room were off.[169] Ms Souliyavong gave detailed descriptions of a number of these occasions.[170]

[151] Mr Abarra's evidence was that from time to time Ms Ngo would raise workplace issues she was having with Mr Tainsh directly. He submitted that he was unsure how often she would do so however to the best of his knowledge it was not a regular occurrence. In mid-2015 Mr Abarra submitted that he suggested to Ms Ngo that she should raise issues with him in the first instance, and from that time onwards she complied with that request.[171]

[152] Mr Abarra's evidence was that he was not aware that Mr Tainsh and Ms Ngo were ever in any kind of relationship and did not witness any kind of inappropriate behaviour in that respect by either of them. [172]

[153] Mr Abarra's evidence was that Mr Tainsh and Ms Ngo were only present together in the group room approximately three to four times over the course of 2013-2015.[173]

[154] Mr Tran's evidence was that he had witnessed Ms Ngo, Mr Tainsh and Mr Abarra in the group room with the lights on for about fifteen minutes.[174] He submitted that if Ms Ngo had a problem she would go and speak to both Mr Tainsh and Mr Abarra and that on any occasion where he saw Ms Ngo and Mr Tainsh together in the group room, Mr Abarra was also present.[175]

[155] Mr Tainsh's evidence was that he recalled one occasion in 2014 when he had been contacted to speak to Ms Ngo who was crying in the group room. He submitted that the room was darkened to the extent that the lights were not on but visibility was good, and that he remained in the room with Ms Ngo for approximately 10 minutes.[176] His oral evidence was that this was the only instance he could recall of sitting in the group room with Ms Ngo with the lights off.[177]

[156] Ms Ngo denied that she had ever been involved in a relationship of any sort with Mr Tainsh other than a professional workplace relationship. Her evidence in her witness statement as that she recalled one occasion where she was upset in the group room over some personal issues where Mr Tainsh was called to speak to her. She submitted that there was nothing inappropriate about this occurrence and that she and Mr Tainsh were never actually alone in the group room as there was someone else there at all times.[178] In a later witness statement, Ms Ngo's evidence was that she recalled a further occasion when she was in the group room alone with Mr Tainsh for approximately 5 minutes or less after which Mr Abarra joined them.[179] Ms Ngo's evidence was that she had no recollection of being in the group room with Mr Tainsh at the same time as Mr Rehman.[180]

[157] Mr Tainsh did not respond spontaneously to questions and instead sought to answer strategically. Much of his evidence was evasive and I consider that Mr Tainsh went to great pains to downplay the significance of his role in granting contract renewals and authorising leave. Mr Tainsh also provided potentially misleading evidence regarding the management structure in the Production group and sought to emphasise the existence of a 'Senior General Foreperson' position in the Workplace Agreement despite knowing that no such role existed within the management structure. For these reasons I did not find his oral evidence to be persuasive. However, I did find the documentary evidence he provided in support of his submissions to be credible. I also note that Mr Tainsh made limited concessions where appropriate.

[158] I found Ms Ngo to be a witness of little credibility. She gave almost exclusively one word answers, gave evidence contrary to her own witness statement and that of Mr Tainsh, and refused to make appropriate concessions when it was drawn to her attention that Mr Tainsh had admitted to certain conduct. My impression of Ms Ngo was that she was unwilling to give any evidence, no matter how uncontroversial it was, that may have suggested that she had any kind of relationship with Mr Tainsh.

[159] However I found Mr Vadala, who I note appeared pursuant to an order of the Commission, to be genuine in his responses and was not evasive even in situations where his own potential noncompliance with policy may have been detrimental to his position.

[160] I found many of the witnesses for the Respondent to be of credit. Ms Talevski and Ms Vasilije were credible and convincing witnesses who made appropriate concessions and answered questions in a direct and quite frank manner. Mr Rehman similarly did not seek to answer questions strategically, he responded spontaneously and sought to clarify some of his expressions where he was not being understood.

Was there a Valid Reason for the dismissal- s.387(a)

[161] In order to make a finding as to whether some of the specific allegations made by TMCA have been substantiated it is necessary that I consider the relationship that Mr Tainsh had with Ms de Leon and Ms Ngo.

[162] I have previously stated in this decision that Ms de Leon and Mr Tainsh had been in a relationship since at least August 2014, however I am not satisfied that there is sufficient evidence to establish that Mr Tainsh was in a relationship with Ms de Leon at the time the first and second periods of leave were granted or that the relationship started any earlier than as submitted by Mr Tainsh and Ms de Leon.

[163] Mr Tainsh conceded that he spent more time with Ms Ngo than with the other TFTs in the Sealer Group. I accept that this created a perception that they had a 'special relationship' however I am not satisfied that there is sufficient evidence to establish that there was anything inappropriate about this relationship. There is simply no evidence, beyond the suspicions of other employees in the Sealer Group, to support an assertion that Ms Ngo had a special relationship with Mr Tainsh.

Inappropriate Grants of Leave (Tainsh Allegations 1 and 4)

[164] Whilst I accept that Mr Tainsh was aware that there was a leave policy on the evidence before me the policy was not consistently applied or enforced. The evidence suggests that managers often applied their discretion when evaluating leave applications and often did so regardless of the requirements of the leave policy. Further, the practice was not confined to Mr Tainsh alone, it occurred generally across the Production Group Leaders.

[165] For the first period of Ms de Leon's leave TMCA state that the leave was entered onto the leave card as LWOP and the electronic system recorded it as unpaid sick leave. TMCA state that no element of the policy was complied with and that the leave was recorded 7 weeks after the leave was taken. Further they submit that there was no recorded notification as required by the Workplace Agreement.[181]

[166] The 10 days of leave was recorded in the electronic system as unpaid sick leave. During the investigation Mr Tainsh provided Ms de Leon's medical certificates for this period of leave. Mr Tainsh submits that Ms de Leon's leave card refers to those certificates however TMCA advised that they were unable to locate them.

[167] I accept that Mr Abarra and Mr Tainsh had been having ongoing problems with the entering of Ms de Leon's leave into the electronic system as evidenced by the emails between Mr Tainsh, Mr Abarra and the payroll administrators. This problem was not rectified until 15 August 2014.

[168] Regardless of what was recorded on the leave card, the electronic pay records accurately record the leave of Ms de Leon as unpaid sick leave for which Mr Tainsh was able to produce supporting evidence.

[169] Whilst 7 weeks is a lengthy delay for the entering of leave into the system, it is evident that Mr Tainsh was having some technical issues with the entering of Ms de Leon's leave.

[170] TMCA submit that Mr Tainsh granted Ms de Leon the first period of leave in circumstances where she was not entitled to that leave however this allegation has not been substantiated as Ms Tainsh had produced evidence that Ms de Leon accessed the unpaid leave for medical reasons and therefore took sick leave without pay with a medical certificate as recorded in the electronic system.

[171] As for the second period of Ms de Leon's leave, whilst elements of the leave without pay policy were not complied with in so far as Ms de Leon still had 3 days of annual leave that was available to her, I am satisfied that it was common practice within the production area of the plant for leave to be granted in these circumstances. Where there was a request for LWOP when an annual leave balance was low the LWOP was generally granted to ensure the employee had leave reserved for shutdown periods.

[172] Whilst there was question as to the validity of the leave application I accept the evidence that Mr Vadala had received, considered and signed the application approving the leave. Ms de Leon had applied for leave so that she could look after her mother and provided medical evidence in support of her application.

[173] Even if Mr Tainsh had been in a relationship with Ms de Leon at the time the leave was granted, Ms de Leon provided sufficient evidence in support of her requests for leave and the granting of that leave was not plainly unreasonable.

[174] In relation to the period of leave granted to Ms Ngo, I am satisfied that again, whilst some elements of the leave without pay policy were not complied with, Mr Vadala had considered her application, taken into consideration that it was a hardship case, and subsequently granted the leave on that basis using his management discretion.

[175] Whilst Mr Abarra initially provided access to the leave applications for the employee I am satisfied that Mr Tainsh in consultation with Mr Vadala ultimately considers whether or not the leave is granted. Whilst I am satisfied that elements of the LWOP policy were not complied with the noncompliance was not limited to Mr Tainsh or the leave requests of Ms de Leon and Ms Ngo, it is a general issue within the production area of the plant. TMCA have provided no evidence that they had attempted to manage or address such noncompliance with the leave policy prior to Mr Tainsh being stood down.

[176] These allegations are partially made out in so far as Mr Tainsh did not comply with the policy on how LWOP was to be applied and granted.

Inappropriate renewal of contracts (Tainsh Allegation 3)

[177] Whilst I am satisfied that Mr Tainsh was ultimately responsible for the approval of the renewal of TFT contracts, I am not satisfied that Mr Tainsh renewed Ms de Leon's contract in circumstances where there were significant issues with her performance and level of absenteeism. He was entitled to rely on the report from Ms Abarra which noted that Ms de Leon's high level of absenteeism was unacceptable however she had always complied with the notification requirements as set out in the Workplace Agreement.

[178] Accordingly, I find this allegation to be unsubstantiated.

Alone with Ms Ngo in the lunch room with the lights off during ordinary hours (Tainsh Allegation 5)

[179] As previously stated, there is insufficient evidence to establish that Mr Tainsh was involved in a relationship of a personal nature with Ms Ngo.

[180] However, whilst Ms Ngo denied it to be the case, on the basis of Mr Tainsh's concessions I am satisfied that there were numerous occasions where Mr Tainsh was alone in the group room with Ms Ngo.

[181] I accept the evidence of TMCA's witnesses that there were a number of occasions between 2013 and 2014 in which Mr Tainsh sat with Ms Ngo in the group room with the lights out.

[182] Accordingly, I find this allegation to be substantiated.

[183] There were several reasons given for the dismissal of Mr Tainsh however it is well established that it is not necessary that all of those reasons be substantiated in order to make a finding that there was a valid reason for the dismissal.

[184] I was not persuaded on the basis of the evidence before me that allegation 3 was substantiated. In relation to allegations 1 and 4, I am satisfied that they are partially substantiated in that Mr Tainsh did not follow the LWOP policy. This behaviour however appeared to have been common practice throughout the Production area. Further, I consider that, in the absence of evidence demonstrating that Mr Tainsh was in a relationship with Ms de Leon or had a special relationship with Ms Ngo at the time the periods of leave were granted, and considering that I have not found that Mr Tainsh was engaging in inappropriate behaviour with either woman, these allegations are more accurately classed as performance concerns rather than an issue of conduct.

[185] In relation to allegation 5, whilst I am satisfied that Mr Tainsh would sit with Ms Ngo in the group room with the lights out, I am not satisfied that this behaviour on its own is sufficient to conclude that he fostered an exclusionary culture within the Paint Shop and engaged in conduct which breached TMCA's Workplace Relationships Policy and Procedure and the Workplace Agreement.

[186] I note that when deciding to dismiss Mr Tainsh, Mr Kershaw also took into account what Mr Tainsh has referred to as 'Tainsh Allegation 6'. This allegation was not raised with Mr Tainsh prior to his dismissal and indeed does not appear to have been raised as a separate allegation by TMCA, rather it was a factor that they considered in determining the severity of Mr Tainsh's conduct. I have taken into account the evidence before me as to Mr Tainsh's knowledge of Mr Abarra's conduct and am not satisfied that this 'allegation' amounts to a valid reason for Mr Tainsh's dismissal, even in conjunction with the allegations that I have found to be substantiated.

[187] Given my findings above, I am not satisfied that TMCA had a valid reason for the dismissal of Mr Tainsh.

Notification of the Valid Reason -s.387(b) and an Opportunity to Respond -s.387(c)

[188] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made[182], and in explicit[183] and plain and clear terms.[184] In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):

"As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the 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."

[189] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. 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.[185]

[190] Mr Tainsh was notified of the allegations numbered 1 to 5 discussed above and given sufficient opportunities to respond to these allegations.

[191] However, Mr Tainsh contends that TMCA failed to provide him with any notice that it was considering what he referred to as "Tainsh Allegation 6", being that he had failed to manage Mr Abarra's behaviours, and failed to provide him with an opportunity to respond to this allegation.

[192] I note the evidence of Mr Kershaw that, in determining whether to dismiss Mr Tainsh, he took into consideration that Mr Tainsh had not managed Mr Abarra's behaviours and had, by his own conduct, contributed to the perception that management was either indifferent to, or supportive of, 'exclusionary' conduct towards team members. This allegation was not put to Mr Tainsh and he was not provided with an opportunity to respond to it.

Unreasonable Refusal of a Support Person - s.387(d)

[193] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.[186] With respect to this consideration, the Explanatory Memorandum states:

"This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them."[187]

[194] It was not contended that TMCA had refused to allow Mr Tainsh to have a support person present. Mr Tainsh had a union representative present at his investigation interview and at each of the meetings that followed with TMCA.

Warnings regarding Unsatisfactory Performance - s.387(e)

[195] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.[188] Unsatisfactory performance is more likely to relate to the employee's capacity to do the job, than their conduct.[189] The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.[190]

[196] Mr Tainsh contends that the fact that he had not received any disciplinary warnings prior to being dismissed militates in favour of a finding that the dismissal was unfair.

[197] Mr Tainsh submitted that the reasons relied on by TMCA being the factual allegations made against him are allegations about his performance as a supervisor. He submitted that because he had not been warned in relation to these matters the dismissal was unfair.

[198] Given the findings I have made above, I agree with the submission of Mr Tainsh in relation to allegations 1 and 4. Failure to appropriately enforce the LWOP policy and comply with the Workplace Agreement is a performance concern, however this was a problem throughout the Production group that had been condoned by Mr Tainsh's own manager. TMCA provided no evidence that they had taken steps to address this noncompliance within the Production group until after Mr Tainsh had been stood down. Mr Tainsh had not previously been provided with warnings in relation to this behaviour and, in consideration of his long tenure and that the behaviour had been condoned by his own manager, this conduct lends itself to performance management at most.

Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(f)-(g)

[199] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal.[191] Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.[192]

[200] The submissions on this consideration were that this is a neutral factor in this matter. TMCA is an organisation with considerable resources with dedicated human resources specialists, the size of TMCA's enterprise would have no adverse impact on the procedures followed in effecting the dismissal. There was no absence of a dedicated human resources person and accordingly the consideration in s.387 (g) has no application.

Other Relevant Matters - s.387(h)

[201] In considering whether it is satisfied that the dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it consider relevant.

[202] It is well accepted that a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for the dismissal. In B, C and D v Australian Postal Corporation[193] the Full Bench stated:

"[41] ...That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be "relevant matters" that do not bear upon whether there was a "valid reason" for the dismissal but do bear upon whether the dismissal was "harsh, unjust or unreasonable".

[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:

(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee's disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]

(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]"

[203] Whether a dismissal is harsh, unjust or unreasonable is to be judged objectively, however relevant factors that can be taken into account in determining harshness clearly include matters personal to the employee. Further, the failure of any employee to comply with the policies and procedures of an employer (which may have been found to be a valid reason to dismiss) does not prevent the Commission from finding that the dismissal was harsh, unjust or unreasonable.

[204] Mr Tainsh contends that the dismissal is unfair as it was harsh, and that the decision to terminate his employment was disproportionate to the gravity of the alleged misconduct. He submitted that aside from ending his employment relationship, had he not been dismissed he would have been entitled to receive a substantial redundancy package. He submitted that the entitlements that he had missed out on were aimed at protecting employees from some of the harsh impacts of the automotive industry coming to an end. Mr Tainsh submitted that the potential to earn the $56 per hour he was receiving from TMCA was severely diminished. I note there is no submission that TMCA's investigation or the dismissal of Mr Tainsh was triggered by an attempt to avoid his pending redundancy.

[205] In addition to the redundancy package Mr Tainsh would have been eligible to participate in the Drive Program, a program designed to assist employees by facilitating a career transition as a consequence of the dismissal Mr Tainsh was unable to participate.

[206] Mr Tainsh also submitted that his social life had been severely impacted by his dismissal. He submitted that a large part of his social life centred on his employment and since his dismissal he had been disconnected from many of his friends at TMCA.

[207] Mr Tainsh had worked for TMCA for over 27 years and submits that he had an unblemished record and had never been disciplined by TMCA. He submitted that none of the allegations can be reasonably described as 'serious', therefore the dismissal was a grossly disproportionate sanction to the gravity of the alleged conduct.

[208] TMCA submitted that Mr Tainsh's length of service was taken into account however given the seniority of Mr Tainsh's role with TMCA and the gravity of his misconduct this factor is not sufficient to mitigate against termination. TMCA also submit that in relation to Mr Tainsh's pending redundancy, the potential harshness of the termination must be balanced against the management prerogative to enforce behavioural standards.

[209] Having considered each of the matters specified in section 387, I am satisfied that the dismissal of Mr Tainsh was unjust and unreasonable. TMCA did not have a valid reason for the dismissal of Mr Tainsh and, in light of the numerous mitigating factors, Mr Tainsh's dismissal was particularly harsh.

[210] The Fair Work Act 2009 (Cth) (the Act) provides the following with respect to remedy:

"390 When the FWC may order remedy for unfair dismissal

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

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

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

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

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

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

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

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

[211] Mr Tainsh sought an order for reinstatement, the restoration of lost pay and an order to maintain continuity of service. He submitted that anything short of reinstatement would be an inadequate remedy in the unique circumstances of the case and that TMCA had failed to adduce sufficient evidence that could satisfy the Commission that reinstatement is inappropriate.[194]

[212] TMCA submitted that reinstatement was not appropriate in the circumstances. They submitted that this was so given Mr Tainsh's lack of appreciation, acceptance and application of the Toyota Way, the evidence against reinstatement given by their witnesses, their loss of trust and confidence in Mr Tainsh and that there would be no ongoing position for Mr Tainsh owing to the impending cessation of the production plant.[195]

[213] I do not consider that reinstatement would be appropriate in the circumstances. Whilst I have found that the allegations relied on by TMCA in the dismissal of Mr Tainsh were largely unsubstantiated, I have a number of concerns regarding Mr Tainsh's behaviour during the hearing. Mr Tainsh repeatedly downplayed the seniority of his position and sought to minimise the role that he had in the renewal of contracts and the granting of leave. As noted above, Mr Tainsh's oral evidence was evasive and on a number of issues he tended to give answers that avoided answering the questions he was being asked.

[214] Further, whilst I have not found that Mr Tainsh's approval of Ms de Leon's TFT contract was inappropriate in all of the circumstances, and I accept that relationships of a personal nature form within the workplace, it is concerning that Mr Tainsh was engaging in a relationship of a personal nature with a TFT employee that he was responsible for supervising without disclosing this to management at TMCA, particularly in light of the significant difference in their positions.

[215] Finally, whilst the allegation regarding Mr Tainsh's failure to manage Mr Abarra's behaviours and, by his own conduct, contributing to the perception that management was either indifferent to, or supportive of, 'exclusionary' conduct towards team members was not put to Mr Tainsh to respond to, and does not appear to have been relied on as a reason for the dismissal of Mr Tainsh, it is of great concern that Mr Tainsh failed to supervise Mr Abarra adequately or, in the alternative, failed to identify that there was an extremely unhealthy culture of sexual harassment within the Sealer Group. In conjunction with the other concerns I have discussed above I believe this is sufficient to establish that an order for reinstatement is not appropriate. I consider that an order for the payment of compensation is thereby appropriate in the circumstances.

[216] Section 392 of the Act sets out the criteria to which I must give regard in determining any amount of compensation I might order TMCA to pay Mr Tainsh. I will consider each of these in succession below.

[217] In determining the amount of compensation to be ordered, the Act provides:

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

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

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

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

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

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

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

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

(g) any other matter that the FWC considers relevant.

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

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

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

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

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

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

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

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

[218] There is no evidence before me that any order I may make would affect the viability of TMCA's enterprise.

[219] Mr Tainsh was employed by TMCA from 1988 to 2016. He was therefore a long serving employee of over 27 years.

[220] Had Mr Tainsh not been dismissed I consider that he would have remained in employment with TMCA for at least a further twelve months. At the time of his dismissal, TMCA submit that Mr Tainsh was receiving $59.7439 per hour plus an 18% shift loading. His annual salary was therefore approximately $139,303.66.

[221] Mr Tainsh gave evidence of the steps he had taken to mitigate the loss suffered because of the dismissal. Whilst Mr Tainsh had not succeeded in securing employment I do not consider that this would warrant any deduction to the amount awarded.

[222] Mr Tainsh gave evidence that he had not earned any remuneration between the date of his dismissal and the hearing. There is minimal evidence before me as to the amount of income reasonably likely to be earned during the period between the making of the order and the actual compensation, and accordingly I reduce the amount ordered by 20% for contingencies.

[223] There are no other matters that I consider to be relevant to my consideration of remedy. I am not satisfied that the conduct that I have found to be substantiated can be regarded as misconduct and as such I make no deduction for misconduct.

[224] I do not include any component by way of compensation for shock, distress or humiliation caused by the manner of the dismissal.

[225] I have found that Mr Tainsh would have remained in his employment with TMCA for a further 12 months, during which time he would have earned a total of $139,303.66. There is no deduction to be made for the amount of remuneration earned by Mr Tainsh since his termination until the end of his anticipated employment period, however I deduct 20% for contingencies.

[226] This results in a figure of $111,442.93. At the time of Mr Tainsh's dismissal, the compensation cap was $68,350. Accordingly, I reduce the figure that TMCA must pay to Mr Tainsh to $68,350 plus applicable superannuation, less appropriate taxation as required by law. An order[196] to that effect will be issued with this decision.

[5] Respondent's final written submissions, [78]

[7] Fair Work Act (Cth) s.591

[8] Pearse v Viva Energy [2017] FWCFB 4701 at [14]

[9] Gelagotis v ESSO [2017] FWC 2398

[12] Exhibit R10[14]-[15], Exhibit A10[29]

[13] Exhibit R10[16], Exhibit A10[32]

[40] Applicant's final written submissions part A, [6]

[43] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

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

[46] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

[47] Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201

[49] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

[50] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 at 449-50

[51] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362-363 per Dixon J

[53] Applicant's final written submissions part A, [10]

[56] Applicant's final written submissions in reply, [7] - [8]

[59] Applicant's final written submissions part A [6]

[67] Abarra v Toyota Motor Corporation Australia Ltd [2018] FWC 3761

[69] Transcript PN6565-6568, Transcript PN7702

[70] Transcript PN7708-7713, Transcript PN8363-8367

[74] Transcript PN430, PN3913-3915, PN3855-3862

[91] Respondent's final written submissions, [132]

[112] Respondent's final written submissions, [133]

[125] Exhibit R11, [13]; Exhibit R21, [17], [22]; Exhibit R18, [13], [16]; Exhibit R16, [25]; Exhibit R14, [16];

[126] Exhibit R20, [27]; Exhibit R16, [23]; Exhibit R14, [18]

[127] Exhibit R11, [11]; Exhibit R23, [18] - [19]; Exhibit R20, [19] - [20]; Exhibit R16, [26];

[128] Exhibit R11, [12]; Exhibit R20, [18] - [19]; Exhibit R18, [15]; Exhibit R14, [19]

[143] Exhibit A5, [18] - [20]; Exhibit A11, [34] - [36]

[181] Respondent's final written submissions, [132]

[182] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

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

[184] Previsic v Australian Quarantine Inspection Services Print Q3730

[185] RMIT v Asher (2010) 194 IR 1 at 14-15

[186] Fair Work Act 2009 (Cth) s.387(d).

[187] Explanatory Memorandum, Fair Work Bill 2009 (Cth) [1542].

[188] Fair Work Act (Cth) s.387(e).

[189] Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

[190] Johnston v Woodpile Investments Pty Ltd T/A Hog's Breath Café - Mindarie [2012] FWA 2 [58].

[191] Fair Work Act (Cth) s.387(f).

[192] Fair Work Act (Cth) s.387(g).

[193] [2013] FWCFB 6191

[194] Applicant's final written submissions part C, [30] - [31]

[195] Respondent's final written submissions, [203] - [206]

[196] PR609045

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