Adrian Tainsh v Toyota Motor Corporation Australia Limited T/A Toyota [2018] FWC 4192

Adrian Tainsh v Toyota Motor Corporation Australia Limited T/A Toyota [2018] FWC 4192 - FWC 2018 case summary — Zoe

[7]

[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.

[9]

[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:

[12]

• 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);

[22]

[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;

[36]

[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;

[38]

[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;

[42]

[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:

[68]

[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;

[88]

[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]

[90]

[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]

[95]

[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.

[100]

[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.

[120]

[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.

[132]

[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:

[150]

[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.

At a glance

Court

Decision date

Source

Judgment (195 paragraphs)

Adrian Tainsh v Toyota Motor Corporation Australia Limited T/A Toyota [2018] FWC 4192 (16 July 2018)

Parties

Legislation Cited (1)

Cases Cited (9)