Fair Work Act 2009_

s.394 - Unfair dismissal

S.394 application for unfair dismissal remedy.

[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged with the Fair Work Commission (the Commission) by Mr Scott Ambrose (the Applicant) against his former employer, Moolarben Coal Operations Pty Ltd (the Respondent) on 27 August 2013.

[2] A conciliation conference took place on 11 October 2013. The matter was not settled and consequently it was listed for hearing.

[3] Originally, it was set down for arbitration in Sydney on 22 - 24 January 2014.

[4] On 20 December 2013, the Construction, Forestry, Mining and Energy Union (CFMEU) who represented the Applicant throughout the proceedings, wrote to Deputy President Gooley (Panel Head for Unfair Dismissals Team) requesting that the substantive hearing take place in Mudgee because most of the witnesses were located there.

[5] The matter was then allocated to me as part of the regional arbitration roster.

[6] I conducted a telephone programming conference on 21 January 2014.

[7] The matter was set down for hearing in Mudgee from 25 - 28 March.

[8] It was apparent that there was a conflict as to the admissibility of evidence from orders to produce sought by the CFMEU. A hearing with respect to this issue and some other preliminary matters took place in Sydney on 4 March 2014.

[9] The witness evidence was completed by 28 March but submissions could not be completed.

[10] Accordingly, final submissions were made in Sydney on 28 April.

[11] Mr A. Walkaden of the CFMEU represented the Applicant. The Respondent was represented by Mr R. Warren of counsel.

[12] As will be seen, the Applicant was dismissed by the Respondent because of alleged breaches of its policies, in particular with respect to another employee of the Respondent, Mr Scott Ford (Scott Ford). The credibility of Scott Ford, as a witness, was an issue which the Applicant wished to challenge. Scott Ford alleged that the Applicant had bullied and harassed him.

[13] In December 2013, the CFMEU, on behalf of the Applicant, sought orders to produce relating to Scott Ford's employment history from the Respondent. These were granted by Deputy President Gooley, as Unfair Dismissals Team Panel Head.

[14] On 20 December 2013, further orders were sought for production of documents etc, including medical and employment records from Scott Ford and two of his former employers. The Respondent strenuously objected to the production of this material. An application was made to revoke the orders which I had made returnable on 14 March 2014.

[15] On 14 March I also issued orders to produce relating to the production of the Applicant's mobile home records. These were not challenged.

[16] The Respondent's application to revoke the orders to produce with respect to Scott Ford's records was argued at the 4 March hearing. I issued a decision on transcript at the conclusion of the hearing granting the application to revoke. (Transcript PN228 - PN233) Some records had already been provided to the Applicant and there was no application to revoke that order. I ruled that because the material related to the prior history of a witness, not a direct party to the proceedings, they were not relevant. The breach of privacy outweighed any possible relevance to the case. I also noted that Mr Walkaden would have an opportunity to cross-examine Scott Ford on his witness statement.

[17] Other matters with respect to the conduct of the hearing in Mudgee were also discussed and resolved.

[18] The Applicant was employed on 12 April 2010. He was notified of his dismissal on 20 August 2013 and the dismissal took effect on 21 August 2013. He was provided with three week's pay in lieu of notice. The Applicant was an operator at the Respondent's open-cut coal mine at Ulan in central New South Wales.

"As a result of another internal investigation it has been found that you have again acted in a way that is contrary to Moolarben Coal's Harassment Creed.

The following items were taken into consideration prior to making any decisions:

• Your recent formal warning dated 26 July 2013 that was issued for acting in a way contrary to Moolarben's Harassment Creed;

• Your role and understanding of the site rule and regulations;

• Your personal circumstances, including your length of service and implication of future employment."

● He had been given a written warning because he had allegedly harassed Scott Ford. He denied this.

● The cause of his dismissal was a text message sent to Scott Ford on 19 August 2013.

● The text message was a picture of a male performing oral sex on himself with the words "This is u cock sucker".

● Scott Ford is alleged to have made related comments himself to other workers in the past.

● He admitted sending the message but said he had sent the text to Scott Ford by mistake. He meant to send it to his brother-in-law who is also called "Scott".

[21] In its F3 the Respondent largely agrees with the facts outlined above. It had received on 26 June 2013 a complaint of inappropriate behaviour by the Applicant and other workers towards Scott Ford. The behaviour had occurred over a period of months. An internal investigation took place. The Applicant was interviewed on 19 July. He was given the written warning on 30 July. A follow-up meeting with the Applicant was held on 7 August. On 20 August Scott Ford complained to the police and the Production Superintendent about the text message.

[22] The Respondent did not accept the Applicant's explanation. It took the view that the Applicant's conduct, even though outside work hours, had a direct connection to the Applicant's employment. The Respondent has a responsibility to ensure that a workplace was free of bullying and harassment for all of its employees.

[23] The Respondent denies the Applicant was not afforded procedural fairness. He had a union representative available or present at all the interviews. He had received a formal warning for related conduct.

[24] The Applicant relied on written submissions lodged on 28 November 2013 and witness statements of a number of employees of the Respondent:

[25] The Respondent relied on written submissions lodged on 19 December 2013 and witness statements of:

● Bruce Birchall - the Open-cut Mine Manager of Moolarben Coal Operations Pty Ltd (Exhibit R2)

● Robert Patterson - the Business Improvement and Human Resources Manager of Moolarben Coal Operations Pty Ltd (Exhibit R1)

● Nick Chadwick of Chadwick Workplace Law who carried out the investigations of the incidents. (Exhibit R3)

[26] Both Mr Walkaden and Mr Warren provided written submissions on 28 April in addition to their oral submissions.

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

[28] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:

"382 When a person is protected from unfair dismissal

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

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

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

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

[29] There is no dispute, and I am satisfied the Applicant has completed the minimum employment period, is below the high income threshold earning $126,456.01 in his last year of employment (this figure was agreed by the parties and provided to the Commission on 24 April 2014), and is covered by an enterprise agreement the Moolarben Coal Operations Pty Limited - Moolarben Open Cut Mine Enterprise Agreement 2011 [AE888984] (the Agreement). Consequently, I am satisfied the Applicant was protected from unfair dismissal.

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

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

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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

[31] A person has been unfairly dismissed if the termination of their employment comes within the definition of "dismissed" for purposes of Part 3-2 of the Act. Section 386 of the Act provides that:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."

[32] There is no dispute that the Applicant was dismissed and that subsections (c) and (d) do not apply. The Respondent had 273 employees.

[33] Having dealt with each of s.385(a),(c)-(d) of the Act, I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

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

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

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

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

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

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

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

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

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

[34] The ambit of the conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

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

[35] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998) Q9292 (Rose) restated the above proposition and also stated:

"In my view whether there has been a `fair go all round' is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be taken into account."

[36] The Applicant submits the dismissal was harsh, unjust or unreasonable because:

● The Respondent's Harassment Creed had not been breached because the text message had only been sent to Scott Ford by mistake. There was therefore no valid reason for dismissal.

● Scott Ford was at fault as well. Following the July warning to the Applicant, Scott Ford was moved from the "Red Crew" to the "Orange Crew".

● The text message was sent to the Applicant by Anthony Hamson, a witness, in July 2013. The message was sent and then forwarded on by the Applicant in his own time. The requisite connection to the employment of the Applicant had not, therefore, been proved.

● Whether the Applicant's conduct amounted to misconduct (including harassment) is an objective test which depends on the circumstances. The Commission should have regard to the fact that the workplace is a coal mine where a certain amount of "banter" takes place. The evidence was that similar text messages are sent between workers at the mine and that nicknames are common.

● The Respondent did not properly specify the nature of the harassment the Applicant had engaged in when it gave him the July warning. It was therefore difficult for him to respond.

● The Applicant gave evidence that Scott Ford had engaged in inappropriate behaviour himself by for example:

- raising his voice to workmates and threatening them;

- an alteration with the Applicant in a lunch room;

- inappropriate remarks with a sexual connotation.

● In short, Scott Ford had completely over-reacted to any conduct on behalf of the Applicant or any other workers who were in the Red Crew.

● Anthony Hanson's evidence was that he could not remember whether he had originally sent the text message to the Applicant, but conceded that it was "highly likely I did". (Exhibit A10, paragraph 6).

● In his second witness statement the Applicant denied a number of the allegations of his harassment to Scott Ford including:

- calling Scott Ford "angry ant" over the two-way radio

● Dismissal was disproportionate to any misconduct, in any event.

[37] The Respondent submits that the dismissal was not harsh, unjust or unreasonable because:

● The Applicant's dismissal was as a result of continued harassment of Scott Ford. His actions were in contravention of the Respondent's "Harassment Creed" and "Code of Conduct".

● The Applicant had received a formal warning on 30 July 2013 that he had been involved in bullying and harassment of Scott Ford. All employees on the Red Crew were the subject of an internal and external investigation in June and July. Scott Ford was given a "Corrective Action file note", as well.

● The Applicant was told by Mr Patterson at that time that he must leave Scott Ford "alone" and that he must not "wind him up". Scott Ford was moved to the Orange Crew.

● It was clear that the text message came from the Applicant's mobile telephone. The Applicant could provide no proof that the sending of it to Scott Ford was accidental, rather he had deleted the records from his phone.

● The action of sending the text had sufficient connection to the Applicant's employment as to be governed by the Respondent's policies.

● The action of dismissal was not disproportionate given that the Applicant knew, or ought to have known, his actions in harassing Scott Ford were unacceptable.

● The Applicant has not shown any contrition for his actions.

● Reinstatement would not be conducive to workplace harmony, given the nature of the incidents that have taken place.

[38] I will now consider each of the criteria contained in s.387 of the Act separately.

[39] In Container Terminals Australia Limited v Toby [2000] Print S8434, a Full Bench said 'In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable'.

[40] Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 said:

"In its context in s.170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct, or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must 'be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly ..."

[41] In Parmalat Food Products Pty Ltd v Wililo, [2011] FWAFB 1166, the Full Bench held:

"The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open."

[42] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered under s.387:

"[20] Northrop J's reasoning anticipated the reasoning of the High Court in Victoria v Commonwealth - that s.170DE(2) by its operation could render invalid a reason that would otherwise have been a valid reason. The fact that some dismissals are "harsh, unjust or unreasonable" notwithstanding the existence of a "valid reason" means that the class of dismissals that are "harsh, unjust or unreasonable" is greater than the class of dismissals where there is no "valid reason" for the dismissal.

[21] Section 387 specifies a range of matters that must be considered in each case. Section 387(h) requires consideration of "any other matters that FWA considers relevant". In any given case, there will be a range of matters, beyond those specified in s.387(a) to (g), that rationally bear upon whether the dismissal is "harsh, unjust or unreasonable" and thus are "relevant matters" that must be considered pursuant to s.387(h).

[22] Often it will not make any difference to the ultimate outcome whether a particular circumstance is considered pursuant to s.387(a) in determining whether there is a valid reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate determination of whether the dismissal was "harsh, unjust or unreasonable". However, in some cases it may matter greatly. That will tend to be so when the particular misconduct, shorn of the personal circumstances of the employee and the broader context beyond the particular acts or omissions that are said to constitute the misconduct, is clearly a matter that a reasonable employer is entitled to take seriously. This is such a case.

[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer's reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1). "

[35] Subject to that, as indicated by Northrop J in Selvachandran, "valid reason" is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a "valid reason" where "valid" has its ordinary meaning of "sound, defensible or well founded". As Northrop J noted, the requirement for a valid reason "should not impose a severe barrier to the right of an employer to dismiss an employee".

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a "valid reason" for dismissal.

[58] Reaching an overall determination of whether a given dismissal was "harsh, unjust or unreasonable" notwithstanding the existence of a "valid reason" involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct."

[44] Given that the Applicant was dismissed because of his alleged breach of the Respondent's policies, it is appropriate to summarise them. These are dealt with in the witness statements of Bruce Birchall and Robert Patterson.

[45] The "Corrective Action Procedure" was attached to Bruce Birchall's statement. It provides for an escalating points system to deal with breaches of discipline. Bruce Birchall carries out a 4/5 day induction course for all employees based on the PowerPoint that was tendered. He was the decision maker on the dismissal.

[46] One of the actions which might potentially lead to summary dismissal is, "Inappropriate remarks/comments on social media that may damage Moolarben's brand or reputation".

[47] Robert Patterson is responsible for day to day human resources/industrial issues at the mine. Attachment 1 to his statement (Exhibit R1) contains the Employee Handbook. The Moolarben Harassment Creed, which is at page 11 states:

• Not encourage or support any form of harassment

• Be proactive eliminating all forms of harassment

• Respect others views, their values and their cultures"

The Handbook also contains a Bullying and Harassment Policy which provides inter alia:

"Moolarben Coal is committed to providing a workplace that is free of Bullying or Harassment in any form, intimidation and other inappropriate and unacceptable behaviour.

Bullying or Harassment may be defined as repeated less favourable treatment of a person by another, or collectively, others that may be considered as unreasonable, inappropriate, intimidating, offensive, degrading, humiliating, undermining, threatening, which may create a risk to health and safety.

Bullying or Harassment is normally associated with a systematic pattern or behaviour.

All employees have a responsibility to ensure that their actions do not negatively affect another workers wellbeing and are consistent with all of Moolarben Coal's policies in particular The Harassment Creed. A breach of this policy may lead to dismissal."

Finally, the Handbook deals with "offensive material, behaviour, emails, greetings, jokes". It states, "Offensiveness is a matter for the receiver to judge and not the perpetrator".

[48] Overall, I find that these policies are appropriate and that the Respondent had taken steps to ensure that employees were aware of them and were trained with respect to them. It seems to me that the Respondent took its responsibility to provide a safe workplace free of harassment seriously. See Bruce Birchall's evidence at Transcript PN5179 - PN5186

The Independent Investigation on behalf of the Respondent

[49] Nick Chadwick was engaged by the Respondent to carry out a workplace investigation following the initial complaint by Scott Ford in early July 2013. He has conducted five workplace investigations for the Respondent since 2010. I take it, therefore, that he has a fair knowledge of the workplace.

[50] Nick Chadwick provided a witness statement (Exhibit R3) and was cross-examined. His report and all of his interview notes are in evidence. I do not take his conclusions as decisive but the investigation shows that the Respondent took the allegations seriously.

[51] Nick Chadwick interviewed all of the operators on the Red Crew. He found Scott Ford credible, admitting that he had behaved inappropriately in response at times. He concluded that some of the employees on the Red Crew had been engaged in harassing behaviour towards Scott Ford. He concluded at paragraphs 57 and 58;

"57. Based on my interviews with the employees I formed the view that Mr Ambrose had antagonised Mr Ford over a period of at least six months and that Mr Ambrose, together with another employee, Daryl Riley, was principally responsible for the inappropriate conduct towards Mr Ford which resulted in his complaint. This view was based on the following evidence in the investigations:

(a) Mr Ford's complaint mainly concerned conduct by Mr Ambrose. I found Mr Ford to be credible.

(b) Mr Ford's contemporaneous handwritten notes of particular incidents involving Mr Ambrose supported his complaint.

(c) Mr Ambrose's [sic] made the following admissions in his interview:

(i) Mr Ambrose and Mr Ford have a hostile relationship;

(ii) Mr Ambrose made a comment in the crib hut in the presence of Mr Ford about his smurf collection. However, he said no references were made to or about Mr Ford. Ms Worth supported that Mr Ambrose made a comment about none of his smurfs having red hair.

(iii) About four months ago Mr Ambrose had a go at Mr Ford about doing donuts in the grader.

(iv) After the incident between Mr Ford and Mr Triggs, Mr Ambrose "laughed at" Mr Ford.

(v) There was an incident in the crib hut where Mr Ambrose told Mr Ford to "get out of his road".

(d) Mr Ambrose expressed aggression aimed at Mr Ford during his interview. He was also very dismissive and unsupportive about any health issues that Mr Ford may have been encountering.

(e) Mr Ambrose' comment "if you can't handle it, don't keep threatening people and threatening to commit suicide" demonstrated to me that Mr Ambrose thought that Mr Ford should be able to "handle" Mr Ambrose's comments and behaviour towards him. It also demonstrated to me that Mr Ambrose was aware that his comments were upsetting Mr Ford, however he took no responsibility for his actions.

(f) Mr Pattisons's evidence supported that Mr Ambrose was one of the employees responsible for taunting Mr Ford and that the conduct towards Mr Ford was unacceptable and inappropriate.

(g) Mr O'Connell's statement that he had told Mr Ford to "stop biting in response to Ambrose's comment" supported that Mr Ambrose had made comments towards Mr Ford which caused Mr Ford to get upset.

(h) Mr O'Connell supported that Mr Ambrose made a comment to him in the crib room in words to the effect of:

"I'm surprised to see you here, I thought Ford was going to knock your head off".

58. Based on the evidence in the investigation I was also satisfied that Mr Ford had retaliated against the conduct towards him and that on occasions he had made inappropriate comments. In particular, a number of employees described an incident in the crib hut w[h]ere Mr Ford made a comment about "sucking himself off."

[52] Nick Chadwick's draft report went to the Respondent on 25 July. He recommended that the Respondent commence a disciplinary process against the Applicant in accordance with the Corrective Action Procedure. The final report was sent to the Respondent on 8 August 2013. It is Attachment 12 to Exhibit R3. He found that the Applicant was "a principal" antagonist in the name calling and taunting of Scott Ford. He made the same finding against Mr Daryl Riley and a secondary finding against Luke O'Connell and Jamie Keogh. He also found that Scott Ford's response had been disproportionate and that his behaviour had been inappropriate at times. He recommended the Respondent commence a ""mid range" disciplinary process and that Scott Ford be transferred.

[53] Ultimately, this case turns on a judgment on the credibility of the evidence of respective witnesses and the process that the Respondent undertook to investigate and deal with what was occurring. It is clear that there was a level of inappropriate behaviour amongst a number of employees. The Commission must focus on the reasonableness and fairness of the Respondent's decision to dismiss the Applicant.

[54] Bruce Birchall and Robert Patterson, in their statements, and oral evidence set out the steps taken by the Respondent since receiving Scott Ford's allegations on 26 June 2013.

● They acted promptly and appropriately. They kept notes of all meetings.

● They addressed the whole crew on 1 July making clear that inappropriate conduct would not be tolerated.

● It was an appropriate decision to engage an independent investigator. It was made clear to everyone that harassment and bullying allegations were being considered.

● Nick Chadwick's interviews were conducted on 19 - 20 July 2013.

● The Applicant and Daryl Riley received a formal written warning and Scott Ford, Jamie Keogh and Luke O'Connell, Corrective Action File Notes.

● It was made clear to the whole crew on 7 August that the conduct must stop. The Applicant was advised separately. The relevant part of the investigator's report was shown to him.

● The Applicant did not dispute the written warning.

● They took reasonable steps on the evening of 20 August 2013 to test the Applicant's version as to how the text was sent to Scott Ford by mistake.

● The text message was in direct contradiction of the previous instruction to leave Scott Ford alone which was delivered on a number of occasions especially the 30 July meeting.

[56] I cannot accept the Applicant's explanation that he sent the message to Scott Ford by mistake. It was a personal greeting and seemed to relate to comments that Scott Ford is alleged to have made previously. He made no attempt to apologise to Scott Ford for his error. (See Transcript PN631 - PN641)

[57] In addition, and I think of significance, there was a gap of a month in the Applicant receiving the message from Anthony Hamson and sending it on. It is not as if it was a "joke" which was passed on to others on the spur of the moment. It appears to have been a deliberate "go" at Scott Ford. The Applicant deleted his phone records and did not take Robert Patterson's calls during the day on 20 August. Further, there was, it appears an 11 minute gap between the sending of the message to the Applicant and the two other employees, Matt Smith and Enda Monaghan (Transcript PN6437 - PN6445)

[58] Scott Ford, in his evidence, alleged a series of harassment activities by the Applicant. There are some 18 examples attached to his statement, most of which involved the Applicant. Nick Chadwick found some of these allegations proved, and others not. I find that on balance there is sufficient evidence from the Respondent's representatives and Scott Ford that the Applicant had engaged in a course of conduct that amounted to harassment. It may be the case that Scott Ford did not help himself by over-reacting. Certainly, as he conceded himself in the witness box he acted inappropriately at times. (See Nick Chadwick's evidence, Transcript PN2810 - PN2860) Overall though, I found Scott Ford a credible witness who admitted his faults. He was very honest about the effect these events had on him and his family life. For example:

"MR WALKADEN: Would you agree that your response was inconsistent with the employee handbook?---Yes, I probably shouldn't have swore. However, I had had enough. I just had had enough and I didn't know how to get it across to him to leave me alone after being told so many times. He just wasn't getting it.

Can I suggest that - - -?---So I said it in front of the whole crew so the whole crew heard it - - -

- - - an avenue available to you would have been to comply with the employee handbook and report the incident to your supervisor or to your resource manager at the time it occurred?---Yes, I - yes, I admitted that I've made mistakes and I should have reported these situations. However, I didn't want to make it worse.

But you agree there was an avenue open to you which you, at the time, chose not to exercise?---Yes."

[59] There was undoubtedly a breach of the Respondent's policies by the Applicant. He had received a formal warning about the same issue only a few weeks before. He was on notice that he must stay away from Scott Ford, and yet sent the text message. (See Transcript PN504 - PN532). He knew that his conduct could lead to his termination, as he admitted at PN541 - PN542.

[60] Robert Patterson gave the following evidence:

"MR WARREN: So what was the company's custom and practice in this circumstance?---Well, when we put the allegations to the individual. So we've had probably four bully harassment cases in there. So what we normally do is, you know, there's an accusation been made against, to the person knows there's a bully harassment case put against them. And then we would interview a number of people. If there was substance of that, that's when we would bring in a third party, which is Mr Chadwick, to investigate that allegation further. So, you know, under my opinion you're under no illusions about the allegation that has been made against you when you're being interviewed by Mr Chadwick.

You understand. So I'm just trying to establish exactly what the company's procedure was in dealing with a complaint like this?---Normal, we put the verbal allegations to them. Again, we do not have a written procedure about this. We put the verbal allegations to them and let them respond to that.

Is it the company's practice to tell the person who's the subject of allegations who has made the allegations?---Yes.

[61] Bruce Birchall gave the following evidence:

"THE DEPUTY PRESIDENT: If you can just have a look at that?---So basically what you're saying there is that during this interview process with Mr Ambrose and Mr Riley you showed a part of the draft report, I think it was a draft report at this stage of Mr Chadwick to them. Is that the case?---That is the case. This is upon my return after being on leave and consistent with one of the things in our Moolarben way is the whites of your eyes so I wanted to be there discussing this thing personally and getting some personal commitments back. I did show Mr Ambrose and Mr Riley their relative paragraph there in relation to the investigation, the outcome. I did not show them the entire report as there was sensitive other witness details within it.

Why didn't you give Mr Ambrose a copy of the report?---Because the report is labelled "Private and Confidential." It was from our lawyer, I did not believe it was appropriate for Mr Pimm to realistically even have the full details and across there the superintendent. All the information residing there was about particular information between every crew member within the crew so I did not believe that was appropriate but it was appropriate for me to show Mr Ambrose and Mr Riley their elements. And the two other individuals I showed them their elements as well of the piece of the report that related towards them.

The conclusions of the report?---The conclusions of the report.

Did Mr Ambrose or anyone else on Mr Ambrose's behalf ask for copies of the report or part or other parts of the report either then or subsequently?---Not from me.

[62] I find that the Applicant deliberately sent the text message to Scott Ford. I find that, in all the circumstances of the case, there was a valid reason for the dismissal of the Applicant.

[63] In so finding I reject the suggestion that because the message was sent on a private mobile phone outside of work hours it did not have sufficient connection to the employment contract.

[64] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998) Q9292 (Rose) considered the extent to which an employee's conduct out of their working hours can provide a valid reason for their termination.

"It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited:

• the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or

• the conduct damages the employer's interests; or

• the conduct is incompatible with the employee's duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.

Absent such considerations an employer has no right to control or regulate an employee's out of hours conduct."

[66] His Honour analysed the facts of several cases and concluded that a valid reason for termination for conduct outside work would require "requisite connection to his employment".

[67] In Anthony Farquharson and Qantas Airways Limited [PR971685], 10 August 2006, a Full Bench, VP Lawler, SDP O'Callaghan, Raffaelli C dealt with "the peculiar circumstances attending slip time in a foreign port that give Qantas a legitimate interest in the slip time conduct of its flight crew that is far greater than the usual interest of an employer in the off duty conduct of its employees." In that case, Qantas had a legitimate interest in ensuring that incidents did not occur which damaged its interests and reputation.

[68] In this case there had been a workplace conflict situation that had been occurring for some time. The Respondent had an obligation to ensure a safe place of work for all employees. The "requisite connection" was the relationship of the employees and the actions of the Applicant as part of a course of conduct that amounted to harassment. Modern technology such as email and mobile telephones means that relevant communications cannot any longer be restricted to the physical workplace or hours of work.

[69] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

"[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted." Ibid at 151.

[70] There is no doubt the Applicant was notified of the reason for dismissal. He had received a formal warning, there had been Nick Chadwick's investigation and he was given an opportunity to explain his actions with respect to the text message on 20 August.

Opportunity to Respond - s.387(c)

[71] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.

[72] Given the process described above, there is no doubt the Applicant had an opportunity to respond to the case against him.

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

[73] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[74] The evidence was that the CFMEU delegate either could have been present or was present at the relevant meetings with the Respondent in July and August 2013.

Warnings regarding unsatisfactory performance - s.387(e)

[75] This is not in issue as the dismissal was for misconduct and breach of policies.

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

[76] The Respondent is a large, well resourced employer. I find that the size of the Respondent's enterprise did not impact on the procedures followed in effecting the dismissal.

Absence of dedicated human resources management specialist/expertise on procedures

followed - s.387(g)

[77] The Respondent had human resources specialists involved in the process as well as a range of technical advice.

Any other matter that the FWC considers relevant

[78] Section 387(h) allows the Commission to consider any other matters it considers relevant. These must be considered in the context of the object of Part 3 - 2 of the Act contained in s.381(2) to "ensure that a 'fair go all round' is accorded to both the employer and the employee concerned".

[79] I do not find that there are any other matters which are of sufficient weight to offset my finding on valid reason and the other matters in s.387. The Applicant was employed for a little over three years. The Applicant's evidence was that he had not been able to find alternative regular employment. On the other hand, he did not exhibit contrition for what had occurred.

[80] In accordance with s.381(2)of the Act, I am satisfied that each party has been accorded a 'fair go all round'.

[81] Having considered each of the matters specified in s.387, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable.

[82] The application for a remedy for unfair dismissal is therefore dismissed. An order in these terms will be issued with this decision.

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