s.394 - Unfair dismissal

• [1] Mr Anthony Lipari (Lipari/Applicant) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) alleging that he was unfairly dismissed from his employment with Transit Systems West Services Pty Ltd (Transit Systems/Respondent).

• [2] Transit Systems operates bus services on behalf of Transport for NSW from various depots located throughout Sydney.

• [3] Mr Lipari's employment was terminated following a meeting of members of the Transport Workers' Union of Australia (TWU) at the Tempe Bus Depot. The letter of termination states:

This letter is to inform you that your employment with Transit Systems is terminated effective immediately for Misconduct.

This decision follows a thorough review of complaints received regarding your behaviour during a meeting held at the Tempe Depot hosted by the TWU Delegate on 18 September 2024.

Transit Systems has formed the opinion on the balance of probabilities that during this meeting you have engaged in aggressive and intimidating behaviour towards the delegate, and you have unlawfully disclosed confidential personal information regarding the delegate - by way of discussing his current workers compensation claim, current medical status and current licence status - to promote your personal ambitions.

• [4] Mr Lipari contends that he was dismissed in retaliation for making an earlier application for an order to stop bullying against another employee, that he was subject to differential treatment compared to other employees in relation to the events that occurred at the TWU meeting on 18 September 2024, and that his dismissal was unfair. Mr Lipari seeks an order for compensation.

• [5] The matter was heard before me on 21 January 2025. I granted permission to Transit Systems to be represented by a lawyer, as I was satisfied that the matter set out in s.596(2)(a) of the FW Act had been met and that it was appropriate to exercise my discretion to grant permission. Mr Lipari was self-represented. Mr S Clayer, a legal practitioner employed by an associated entity of Transit Systems, represented Transit Systems.

• [6] For the reasons that follow, I have concluded that Mr Lipari was not unfairly dismissed.

• [7] Witness statements were tendered from the following persons, who each gave evidence at the hearing, except for Mr Shankar:

• Mr Jose Quintal, employed by Transit Systems as a Bus Driver (Exhibit A5);

• Mr Ashley Newton, employed by Transit Systems as a Bus Driver (Exhibit A6);

• Mr Bill Pagalis, and employed by Transit Systems as a Bus Driver, and the TWU delegate for Tempe Bus Depot (Exhibit R1);

• Ms Leah Marcuse, employed by Transit Systems as a Bus Driver (Exhibit R3);

• Mr Makkena Choudhary, employed by Transit Systems as a Bus Driver (Exhibit R4);

• Mr Shawn Moore, employed by Transit Systems as a Bus Driver (Exhibit R5);

• Mr Andrew Thompson, employed by Transit Systems as the Yard Supervisor for the Tempe Deport (Exhibit R6);

• Mr David Fenech, employed by Transit Systems as the Acting Operations Manager (Exhibit R7);

• Ms Rachel Byrnes, employed by Transit Systems as the Area Manager with responsibility for Tempe Bus Depot (Exhibit R11); and

• Mr Abhay Kumar Shankar, employed by Transit Systems as a Bus Driver (Exhibit R12).

• [8] The following documents were admitted into evidence:

• Transit Systems' Outline of Submissions in Commission matter AB2024/343 (Exhibit A2);

• Applicant's Bundle of Documents in Chief (Exhibit A3);

• Applicant's Bundle of Documents in Reply (Exhibit A4);

• Unredacted Email from Bill Pagalis to Lisa Rebeiro and David Fenech dated 18 September 2024 (Exhibit R2);

• CCTV Footage (Vision only) of Part 1 of Meeting on 18 September 2024 (Exhibit R8);

• Respondent's Bundle of Documents #1 (Exhibit R9); and

• Respondent's Bundle of Documents #2 (Exhibit R10);

• [9] The following documents were marked for identification:

• Audio Recording of meeting on 18 September 2024 with file name Audio1.mp3 (MFI 1); and

• Audio Recording of meeting on 18 September 2024 with file name Audio2.mp3 (MFI 2);

• [10] There was a dispute as to the admissibility of the audio recordings. During the hearing of the matter, I reserved my ruling on their admissibility and indicated to the parties that I would give consideration to the issue and determine whether the recordings would be admitted into evidence as part of my consideration of the matter.

• [11] The audio recordings relate to two parts of the TWU meeting which took place in the meal room at the Tempe Bus Depot on 18 September 2024.

• [12] The audio recordings were made by Mr Pagalis by activating the recording function on his mobile telephone prior to the commencement of the meeting. Mr Pagalis did not inform the meeting that it was being recorded, nor did he seek the consent of those present. Mr Pagalis stated that he recorded the meeting for the sole purpose of making notes to distribute to those TWU members who were not in attendance.

• [13] MFI 1 records the first part of the meeting up to the point where Mr Pagalis leaves the meal room. MFI 2 records another part of the meeting following Mr Pagalis returning to the meal room.

• [14] Mr Lipari objects to the audio recordings being admitted into evidence on the basis that they are recordings of a private conversation between members of the TWU regarding TWU business and were made in contravention of s.7 of the Surveillance Devices Act 2007 (NSW) (SD Act).

• [15] Transit Systems submitted the prohibition in s.7 of the SD Act does not apply as the meeting was not a private conversation. Transit Systems submitted that the meeting took place in the meal room which can be accessed by all employees. Transit Systems submitted that if there is a yard meeting or union meeting in the meal room, it does not prevent other people from entering or leaving the meal room. Transit Systems submitted that there were people in the meal room during the meeting that were not members of the TWU.

• [16] Section 7(1) of the SD Act provides as follows:

7 Prohibition on installation, use and maintenance of listening devices

_(1) A person must not knowingly install, use or cause to be used or maintain a listening device - _

(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or

(b) to record a private conversation to which the person is a party.

• [17] Section 4 of the SD Act defines "private conversation" as follows:

private conversation _means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only - _

(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,

but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.

• [18] In Thomas & Anor v Nash,[1] the Supreme Court of South Australia stated:

36. The definition of "private conversation" indicates that a conversation is private if the conversation, as it takes place and progresses, is intended to be confined to the parties to the conversation, or known participants in the conversation.

37. A conversation can be private even though the participants are at liberty to tell others about it later. In the Act, "private" is used not in the sense of "secret" or "confidential", but in the sense of "not public". A telephone conversation with a friend is a private conversation, even though the friend is at liberty later to tell another about it. On the other hand, a telephone conversation on talkback radio is not a private conversation.

• [19] Nash was cited with approval by the Supreme Court of New South Wales in Kanjian Holdings No 1 Pty Ltd v Kanjian; Kanjian v Kanjian (No 3)[2] (Kanjian Holdings) which considered whether a conversation between family members at a table in the dining room of a nursing home was a private conversation for the purposes of the SD Act. Henry J held:

477 A private conversation is one which may reasonably be taken as intended to be confined and listened to by the persons who are a party to the conversation. It may be private even though it occurs in a public place, such as a restaurant, or the participants are at liberty to tell others about it later: Thomas v Nash (2010) 107 SASR 309; [2010] SASC 153 (Thomas v Nash) at [36]-[37], cited with approval in RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 3) [2018] FCA 404 at [23]-[24]; Poland v Hedley [2019] WASC 403 at [33], [36].

479 Even though the dining room was open to other residents, staff and guests, the evidence is that Annie, Ken, Sonia and Loris were sitting at their own table conversing amongst themselves. There is some evidence to suggest that they may have attracted attention while they were talking; the translated transcript refers to Loris "banging on the table". That said, the recording does not indicate they were speaking loudly or otherwise in a manner that would encourage others to listen, particularly as the conversation was in Armenian. The presence of others milling around could also be expected to have given rise to general hubbub that would make it hard for others to hear what was being said. In my view, considered objectively, these circumstances are such that the parties ought not reasonably to have expected that their conversation would be overhead by others in the dining room, let alone listened to and understood.

• [20] In the context of meetings of committees or other bodies, the Supreme Court of South Australia held in Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [3] (Alliance Craton) that although a formal meeting - with an agenda, reports, and minutes, and where the parties seek to reach decisions which will affect their legal rights - is private, it is not a 'conversation'. In coming to this conclusion, the Court had regard to ordinary meaning of the word 'conversation'.

• [21] However, in RRG Nominees Pty Ltd v Visible Temporary Fencing Australia (No 3)[4], White J found that a business meeting was capable of being a 'conversation' where it was free flowing, not structured according to an agenda, and where minutes were not taken.[5]

• [22] Turning to the matter before me, Mr Lipari described the meeting as a meeting of members of the TWU for the purpose of discussing TWU business. But unlike Kanjian Holdings, this is not a case where those in attendance were gathered around a table or several tables or confined to a particular section of the meal room while other employees were milling around elsewhere.

• [23] As can be seen on the CCTV footage, the meal room, which is not a large room, was not closed for the duration of the meeting. Employees, whether they were members of the TWU or not, were able to access the meal room and use the facilities, and/or sit at the tables amongst the meeting attendees.

• [24] The CCTV footage shows Mr Pagalis and Mr Lipari addressing the meeting from one end of the room while people enter and exit from time to time through the front and rear doors. It is clear from the movement of people in the CCTV footage, including a person at the rear of the room raising their hand to ask a question, that anyone present in the meal room would have been able to hear the discussion of the meeting.

• [25] The Commission does not have jurisdiction to determine whether an audio recording was obtained lawfully or unlawfully under the SD Act - those are matters for Courts of competent jurisdiction. However, in the circumstances set out above, it would appear to me, without making any finding, that the meeting was not a 'private conversation' within the meaning of s.4 of the SD Act and the prohibition in s.7 of the SD Act would not apply.

• [26] Notwithstanding my observation, the issue is whether the audio recordings should be admitted into evidence. In matters before the Commission, the general view is that the surreptitious recording of conversations in the workplace, irrespective of whether it constitutes an offence, is usually inappropriate and is conduct to be deprecated.[6] While the Commission has in many cases refused to admit secret recordings into evidence, whether a secret recording is admitted into evidence is a matter of discretion where each case will turn on its own facts.[7] In considering whether to admit a secret recording into evidence the Commission is not bound by the rules of evidence[8] and s.590(1) of the FW Act gives the Commission a broad discretion to inform itself in relation to any matter before it in such manner as it considers appropriate. That does not mean that rules of evidence can be ignored. Rather, the rules of evidence provide general guidance as to the manner in which the Commission informs itself.[9]

• [27] Relevantly, s.138 of the Evidence Act 1995 (Cth) provides as follows:

138 Discretion to exclude improperly or illegally obtained evidence

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence; and

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject‑matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Note: The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Australian Human Rights Commission Act 1986.

• [28] In Togher, Abadee DCJ found that a recording of a meeting in an auditorium attended by approximately 30 administrative, performance, and production personnel regarding the ongoing viability of a festival was not obtained in contravention of Australian law and was not obtained improperly, but ultimately concluded that if he was wrong in that assessment, he would have otherwise admitted the recording because of the probative value of the evidence, its importance, and the circumstance that the recording did not amount to a grave, deliberate or reckless contravention. In arriving at these conclusions, His Honour observed that the making of a secret recording is not axiomatically improper and depends upon the context, citing the example of where a person is speaking to large (or indeterminate) gathering of people, whether in a public place or enclosed public place.[10]

• [29] There have also been matters before the Commission where secret recordings have been admitted into evidence where no finding as to the lawfulness of the recording was able to be made, or where there was a prima facie case that the recording was obtained in contravention of an Australian law.

• [30] In Panos Panayiotou v University of Adelaide,[11] Commissioner Hampton (as the Deputy President then was), had regard to covert audio recordings even though there was no evidence that would permit findings being made in relation to the lawfulness or otherwise of the recordings.

• [31] In Kellie Nankervis v Five Star Outdoors Pty Ltd,[12] Commissioner Platt, in deciding to admit into evidence a secret recording, stated:

The overarching principle is whether the probative value of the recording outweighs the prejudicial value. Ordinarily, I would have rejected the request to receive the recording, but in this case, the tenor of the discussion and the relative bargaining positions of the parties are important to determining whether Ms Nankervis resigned or was dismissed. I determined to receive the recording into evidence for this purpose alone.

• [32] In Application by Ranmeet Kaur,[13] Deputy President Beaumont admitted secret recordings into evidence, noting the desirability of hearing first-hand whether asserted remarks had been made.

• [33] In the matter before me, the Applicant is alleged to have engaged in aggressive and intimidating behaviour towards Mr Pagalis at the meeting. There are witness statements from eight people who were present for part or all of the meeting. There are significant differences between the witness' accounts of what was said. There was also inconsistent evidence given under cross examination. Even if the audio recordings were obtained in contravention of the SD Act, I consider the probative value and importance of the audio recordings in determining whether the alleged conduct occurred outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. As stated by Deputy President Beaumont in Application by Ranmeet Kaur, it is desirable to hear first-hand whether the asserted conduct occurred.

• [34] Accordingly, the audio recordings will be admitted into evidence as follows:

• Audio Recording of meeting on 18 September 2024 with file name Audio1.mp3 (Exhibit R13); and

• Audio Recording of meeting on 18 September 2024 with file name Audio2.mp3 (Exhibit R14).

When can the Commission order a remedy for unfair dismissal?

• [35] Section 390 of the FW Act provides that the Commission may order a remedy if:

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

• [36] Both limbs must be satisfied. I am therefore required to consider whether Mr Lipari was protected from unfair dismissal at the time of being dismissed. If I am satisfied that Mr Lipari was so protected, I must then consider whether Mr Lipari has been unfairly dismissed.

When is a person protected from unfair dismissal?

• [37] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(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.

• [38] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.

• [39] On 29 March 2021, Mr Lipari commenced employment with Transit Systems as a Bus Driver. Mr Lipari's contract of employment included the following terms and conditions:[14]

The Company has documented Policies and Procedures. You are required to comply with all Company Policies. All policies and procedures will be available for reference at your worksite.

During your employment with the Company pursuant to the terms and conditions set out in this letter you will also be required to comply with and, where applicable, will have the benefit of the Company's policies and procedures as adopted, supplemented or modified from time to time

During your employment you may become aware of information that is confidential to the Company and the Company's operations. Such information remains the property of the Company. You shall not divulge, directly or indirectly, confidential Company information to any person.

You must not, during your employment or afterwards, without the Company's prior written consent or as otherwise required by law, either directly or indirectly, disclose, use, copy, transmit or remove or attempt to disclose, use, copy, transmit or remove any part of the Company's Confidential Information for any purpose other than the Company's business. In addition, you must not use or disclose any Confidential Information in any manner which may cause or be calculated to cause injury or loss to the Company or a related or associated company.

'Confidential Information' includes without limitation, all records, documents, data, computer files, product information (including prices and margins), processes, techniques, information about or relating to the Company, its related entities, employees, customers, clients, contractors, or persons doing business with the Company, information which by its nature is confidential, and information which is "personal information" as that term is defined in the Privacy Act 1088 [sic] (Cth) as amended from time to time.

• [40] Transit Systems has implemented, inter alia, a Code of Conduct Policy and a Respectful Workplace Behaviours Policy (Bullying, Harassment, and Discrimination).[15]

• [41] The Code of Conduct Policy requires employees to:

• treat others with respect and dignity and not engage in bullying, harassment or discrimination;

• Comply with applicable policies, procedures and work instructions; and

• Maintain confidentiality of information, and not take advantage of Group property or information for personal gain or to cause detriment to Group or its customers.

• [42] The Respectful Workplace Behaviours Policy (Bullying, Harassment, and Discrimination) relevantly provides:

Workplace bullying is defined as behaviour that is directed towards an employee or group of employees, that is repeated, and that a reasonable person, having regard to all the circumstances, would expect to victimise, humiliate, undermine, or threaten the employee or employees to whom the behaviour is directed; and that creates a risk to health or safety.

Direct bullying occurs between the specific people involved.

Indirect bullying involves third parties participating in bullying behaviours, for example, passing on insults or spreading rumours. Indirect bullying mostly inflicts harm by damaging another's social reputation, peer relationships and self-esteem.

The following types of behaviour could be considered bullying:

• Excluding or isolating an employee or employees from workplace activities;
• Giving an employee the majority of unpleasant or meaningless tasks;
• Giving employees impossible assignments (e.g. outside the skill and competence of the employee);
• Verbal abuse;
• Humiliating employees through sarcasm or insults;
• Intimidation or threatening behaviour;
• Deliberately changing work hours to cause inconvenience to particular employees;
• Deliberately withholding information that is vital for effective work performance, and
• Deliberate damage to personal property.

This is not an exhaustive list; other types of behaviour may also constitute bullying if it creates a risk to health and safety. Conduct may constitute bullying even if it was not intended to humiliate, undermine, or threaten, etc.

Notwithstanding that behaviour might not be repeated or directed at a person or group, and therefore may not fit within the definition of workplace bullying, any unreasonable behaviour that creates a risk to the health or safety of others is unacceptable and will be treated seriously by Kelsian.

Harassment is any unwelcome or uninvited behaviour that causes or has the potential to cause offence, intimidation or humiliation and it is reasonable in the circumstances to feel that way.

Harassment can be physical, verbal or visual in nature. Harassment can take various forms and can include sexual harassment (harassment of a sexual nature) or racial harassment.

Examples of harassment include, but are not limited to:

• Uninvited physical contact;
• Verbal remarks with sexual or racial connotations;
• Any action or comment of a sexual nature;
• Display of inappropriate objects or pictures, written emails or text messages;
• Questions or insinuations about a person's private life;

Offensive communication including email messages, voice-mail, text messages, letters, telephone calls and/or facsimile.

Harassment may occur even if it is not intentional. It is the impact of the behaviour on the person concerned that is important, not the intention of the 'harasser'. Harassment can be the result of:

• A single incident;
• A series of incidents over a period of time; or
• Performing work in a hostile environment.

Harassment (including sexual harassment) can occur during working hours or outside the normal workplace, for example, during training or at work social functions.

The Employer aims to provide an environment where an employee can work without feeling in any way threatened or concerned that they will be subjected to offensive, humiliating or intimidating behaviour of a sexual or racial nature.

• Employees must successfully complete the associated training or acknowledgement, as required, by the employer;
• Prevent discrimination or harassment by maintaining an appropriate standard of behaviour in the workplace and treating fellow employees with courtesy and respect;
• Clearly communicate their feelings to other employees who they feel are harassing or acting in a discriminatory way towards them;
• Raise harassment or discrimination issues with their manager or supervisor if unresolved through personal approaches;
• Actively contribute to a positive and productive work environment and inclusive workplace culture;
• Maintain awareness and an understanding of the Policy and the consequences of not complying with the Policy;
• Seek advice from their manager if they are unsure whether their actions could breach this Policy; and
• Report suspected non-compliance of this Policy to their manager.

Non-compliance with this Policy may lead to disciplinary action, up to and including termination of employment.

• [43] On 18 September 2024, there was a meeting of TWU members at the Tempe Bus Depot. The meeting was held in the meal room and was convened by Mr Pagalis. At the time of convening the meeting, Mr Pagalis was one of two co-delegates representing members of the TWU who were employed at the Tempe Bus Depot. The other co-delegate was Mr Lipari.

• [44] Mr Pagalis called the meeting to inform members of two matters - that TWU membership fees were increasing, and that he would be the only TWU delegate for the Tempe Bus Depot going forward.[16] The TWU members were not aware of these matters prior to the commencement of the meeting.

• [45] Although the meeting was described as a meeting of members of the TWU, employees who were not members of the TWU were in attendance, including members of the Australian Rail, Tram and Bus Industry Union (RTBU). The meal room was not closed off for the meeting and employees, including those who were not members of either union, were able to come and go, to use the meal room facilities or sit in the meal room during the meeting.

• [46] It is convenient to refer to the meeting as having occurred in three parts as follows:

• • Part 1 is from the commencement of the meeting until Mr Pagalis leaves the meal room and is recorded by the CCTV Footage[17] and Audio Recording 1;[18]

• Part 2 is the discussion which continues in Mr Pagalis' absence. There is no CCTV footage or audio recording of this part of the meeting; and

• • Part 3 is the period when Mr Pagalis re-enters the meal room until the end of the meeting. This part of the meeting is recorded in Audio Recording 2.[19]

• [47] Mr Pagalis began the meeting by informing the attendees that TWU membership fees will be increasing but to offset the increase in membership fees, members will be given free tickets to events such as the Easter Show. Although there were fifteen people in attendance when the meeting commenced, the number of people in the meal room fluctuated between 15 and 18 throughout Part 1. During Part 1, Mr Lipari was at the front of the room to the side of Mr Pagalis. Mr Lipari interjected at times to supplement the information provided by Mr Pagalis or to ask questions.

• [48] Mr Pagalis then moved onto the second matter and informed the meeting that he had been told by the TWU on the previous day that he was the sole TWU delegate for the Tempe Bus Depot. Mr Pagalis informed the meeting that it was not his decision, that he could not answer any questions about why this had happened, and that any questions were to be directed to the TWU. Mr Lipari asked when the members were informed of this and how it came about. Mr Pagalis responded that he was informing them now and that he cannot answer any questions about that. This prompted some attendees to yell out questions such as "How did this come about?" and "Who told you that?", to which Mr Pagalis stated that he could not answer those questions.

• [49] Mr Lipari then addressed the meeting about the importance of staying united as members of the union, that the power comes from the membership/workgroup not the delegate, and that he was concerned that there was division.

• [50] After Mr Lipari had spoken for about 1-2 minutes, Mr Pagalis attempted to end the meeting. This prompted Mr Lipari to tell Mr Pagalis not to interrupt him and to sit down, before other attendees, including an RTBU member, started asking Mr Pagalis questions over the top of each other about how the removal of Mr Lipari as co-delegate could occur without the knowledge of the members. Mr Pagalis repeated that he could not answer any questions about that, prompting one attendee to shout, "you're not doing what the fucking members want." As Mr Pagalis walked towards the door to leave the meal room, Mr Lipari said "stay here and answer the questions." Mr Pagalis left the meal room.

• [51] During the time Mr Pagalis was not in the meal room, Mr Lipari addressed those employees who remained in the meal room. It was during this part of the meeting that Mr Lipari is alleged to have "unlawfully disclosed" confidential personal information regarding Mr Pagalis by discussing his current workers compensation claim, current medical status and current driver licence status.

• [52] As noted above, there is no visual or audio recording of this part of the meeting. I set out the evidence of the witnesses as follows.

• [53] In his evidence-in-chief, Mr Lipari stated:

After [Mr Pagalis] left the meal room several drivers were directing questions to me about what was going on. One driver asked why [Mr Pagalis] is never here. There were drivers in the meal room that didn't know [Mr Pagalis] was on workers compensation, so I said [Mr Pagalis] had had an accident last year and he was off work for an injury, the reason he is here only a few days per week is he is on a return-to-work certificate.[20]

At no time did I discuss the personal details of [Mr Pagalis'] workers compensation or his qualifications.[21]

• [54] Under cross examination, Mr Lipari gave the following evidence:

• • That all employees at the Tempe Bus Depot knew that Mr Pagalis had an accident, suffered an injury and was on workers compensation;[22]

• • That Mr Pagalis had told employees at the depot about his accident and told Mr Lipari to inform TWU members based at Tempe Bus Depot of his situation and why he was not at work;[23]

• • That there were some new employees in the meal room on 18 September 2024 who did not know who Mr Pagalis was and that Mr Lipari stated: "He is a driver here, He had an accident. He suffered an injury and is on workers compensation."[24]

• • That Mr Pagalis was present [on 18 September 2024] because he is on a return-to-work certificate;[25]

• • That he did not recall saying Mr Pagalis had struck a pedestrian, but everybody at the Tempe Bus Depot knew that had happened;[26]

• • Mr Lipari denied that he had stated Mr Pagalis' was suffering from a mental health condition or was on leave due to 'mental health reasons';[27]

• • That he did not know what Mr Pagalis' medical situation was, only that he was absent on workers compensation;[28] and

• • Mr Lipari stated that he could not recall whether he stated that Mr Pagalis' heavy vehicle driver licence and driver authority had been cancelled.[29]

• [55] In his evidence-in-chief, Mr Quintal stated:

One of the new drivers asked [Mr Lipari] who [Mr Pagalis] was. [Mr Lipari] responded with, '[Mr Pagalis] is the delegate, [he] had had an accident, and as a result he suffered an injury and the reason you haven't seen him is because he had been away on worker's comp and he's only just returned back to work on light duties'.[30]

• [56] Under cross examination, Mr Quintal stated that the information Mr Lipari shared about Mr Pagalis during the meeting on 18 September 2024 was information that was common knowledge throughout the Tempe Bus Depot.[31] Mr Quintal denied that Mr Lipari stated that Mr Pagalis had a mental health condition but could not recall whether Mr Lipari referred to Mr Pagalis' driver licence or authority.[32]

• [57] The extent of Mr Newtown's evidence was that after Mr Pagalis left the meal room, Mr Lipari was "left to answer members concerns to which he did with confidence and professionalism and as truthfully he could."[33]

• [58] In her evidence-in-chief, Ms Marcuse stated that after Mr Pagalis left the meal room, Mr Lipari stated:

• The depot needs a delegate that is not there for the power;

• Mr Pagalis had an accident and struck a pedestrian while driving a bus;

• Mr Pagalis was on leave for mental health reasons; and

• • Mr Pagalis' heavy vehicle licence and driver authority card has been suspended.[34]

• [59] The evidence of Ms Marcuse set out above was supported by a handwritten statement made by Ms Marcuse on or about 26 September 2024[35], and was not challenged under cross examination.

• [60] In his evidence-in-chief, Mr Choudhary stated that after Mr Pagalis left the meal room, Mr Lipari "mentioned that [Mr Pagalis] has lost his licence, [driver authority] card and has mental problems."[36]

• [61] However, there was no reference to these matters in the statement Mr Choudhary provided to the Respondent the day after the meeting.[37]

• [62] Under cross examination, Mr Choudhary acknowledged that it was not included and stated that when he was preparing his witness statement for these proceedings, he remembered Mr Lipari mentioning those matters.[38]

• [63] In a statement provided by Mr Moore to the Respondent as part of its investigation, Mr Moore stated:

Mr Lipari responded to questions as best he could in relation to his understanding of the status of [Mr Pagalis'] compensation and injury. Somethings in relation to authority card and licence were mentioned but I really did not listen to the content as these are matters of little importance to myself.[39]

• [64] In his evidence-in-chief, Mr Moore stated that after Mr Pagalis left the meeting, Mr Lipari:

... then proceeded to explain the position of Bill Pagalis' working status and workers compensation. As best as I can remember questions were asked in relation to his compensation with Mr Lipari explaining that [Mr Pagalis] is on workers compensation for psychological reasons because of his accident. He detailed that [Mr Pagalis] has no bus authority card and something in relation to his licence. From my recollection there was also mention of him having to be passed mentally fit to return to driving buses in the future.[40]

• [65] In his evidence before the Commission, Mr Moore confirmed that Mr Lipari had stated that Mr Pagalis was on workers compensation for psychological reasons and does not have a driver authority card.[41]

• [66] Although Mr Lipari noted the difference between these accounts in his submissions in reply,[42] he did not challenge Mr Moore's evidence under cross examination.

• [67] Mr Thompson left the meal room at the end of Part 1 and was not present for Part 2.[43]

• [68] Having regard to the evidence, I find that Mr Lipari told the meeting that Mr Pagalis had an accident, was receiving workers compensation, was suffering from a mental health or psychological injury, and that his driver licence and driver authority were suspended.

• [69] In making this finding I prefer the evidence of Ms Marcuse, Mr Choudhary, and Mr Moore, where it conflicts with the evidence of Mr Lipari, Mr Quintal, and Mr Newton. In particular, I have placed considerable weight on the evidence of Ms Marcuse. Ms Marcuse provided a detailed handwritten statement to Transit Systems approximately one week after the TWU meeting, which was the most detailed of all witness statements, and the most accurate when compared to those parts of the meeting which were recorded in the audio recordings.

• [70] Although there are some differences between the accounts provided by Mr Choudhary and Mr Moore during the investigation and their evidence in these proceedings, I found both gave frank and honest evidence under cross examination and their evidence that Mr Lipari had referred to Mr Pagalis' medical condition/mental health issue was not broken under cross examination.

• [71] Conversely, Mr Lipari, Mr Quintal, and Mr Newton each gave evidence that was knowingly inaccurate, self-serving or unconvincing. For example, under cross examination Mr Lipari initially denied he told the TWU meeting that he had evidence of Mr Pagalis bullying him, and that he would file an application for an order to stop bullying against Mr Pagalis. However, when asked to confirm his evidence by me, the following exchange took place:

THE COMMISSIONER: So what are you saying yes to, Mr Lipari?---I will change what I said, and I will say yes to - what was your question? That I said I would take Bill Pagalis to the Fair Work Commission?

MR CLAYER: A stop bullying application?---I will say yes. All right. I will stand by that.

• [72] Despite Mr Lipari ultimately agreeing that he told the meeting he would file an application for an order to stop bullying against Mr Pagalis, and the audio recording clearly recording Mr Lipari stating that, both Mr Quintal and Mr Newton denied that Mr Lipari said that.[44] Mr Newton was adamant, stating Mr Lipari "definitely didn't say it" even after being informed that Mr Lipari had agreed that he said words to that effect. After stating that he was seated at the front of the room and could hear everything, and rejecting that it was possible that he might not have heard Mr Lipari say those words, Mr Newton changed his position and said that if Mr Lipari did say those words, then he did not hear it.[45] I found this unconvincing having regard to the size of the meal room, the volume of Mr Lipari's voice on the audio recording, and where Mr Newton said he was seated. It was clear on this point, that Mr Quintal and Mr Newton both gave evidence that they considered was favourable to Mr Lipari's position, not aware that Mr Lipari had changed his position under cross examination.

• [73] When Mr Pagalis re-entered the meal room, Mr Lipari was addressing the attendees.

• [74] The audio recording relevantly records the following:[46]

[TWU Delegate] said to me last time she was here that Tempe is the problem child of this Company and the problem child stems from [Mr Pagalis].

As I said, I will write up the legal document, right.

I will write it in such a way that it is legally binding and it makes everyone aware what you are signing, not taking you into the union office to coerce you into signing something that you don't know what its about, right. I will do it professionally and legally, I will have it written up and anyone that wants this division to stop in Tempe Depot jump on board. We will have a full election from the top to the bottom - [Mr Pagalis'] position, my position, everyone's position, right. Because currently what the TWU has is hearsay and hearsay in a court of law doesn't stand up. And, I will put this on the table right now - what [Mr Pagalis] is doing is nothing more than bullying, intimidation and harassment of me.

And like [Mr Pagalis'] buddy[47], no, no, like his buddy, when I get home, cause I have enough, this is what this guy doesn't understand. I've got evidence left, right, and centre of him bullying me and today I will be filing a case in Fair Work Commission of a stop bullying order against Bill Pagalis, right. And he will be before the Commission, before Deputy President [Redacted].

Because what [Mr Pagalis] is doing is nothing more than bullying, intimidation and harassment because he believes that the delegate is power. It's not. Like I said, the power is the work group. [Mr Pagalis] is trying to divide the workgroup. While the workgroup is divided, we're never going to get anywhere, right. We're always going to be defeated. I wanna unite the workgroup, so we stand as one, so we're all on the same page, we're united and that is how you get power.

The only way this is going to settle is to have a fresh election.

As I said I'm more than happy, people voted me in. If he gets the numbers to go against me, I'm more than happy to run an election. If he is better than me, I'm more than happy for him to have the job.

Yeah, but it's not the TWU's decision, it's the workgroup's decision.

[Unidentified and indistinct interjections about fresh elections]

That's fine. You get the numbers and I'll do it. That's how it works right, its democracy.

Like I said, Like I said, today the two things I'm going to do when I get home is firstly, file a stop bullying order against Bill Pagalis, right, because like I said, I've got more than enough evidence that he is going to get caned in the Fair Work Commission.

Now, I'll tell you in my 30 years of working, I've taken 7 cases to the Fair Work Commission and I've won every single one. Why? Because I do my research, I have my facts, I do what's right, I walk the straight line. I don't go like this. Like I said to you when you're [Indistinct] bamboozled me.

So, I feel bad for you guys having to go through this, but the only way for it to be resolved is a full election and I'll make it happen.

• [75] On the evening of 18 September 2024, Mr Pagalis sent a complaint to Mr Fenech and Ms Lisa Rebeiro, Transit Systems' general manager - people and culture, regarding the conduct of Mr Lipari, Mr Quintal and Mr Hassan Debal at the TWU meeting earlier that day.[48]

• [76] Mr Fenech stated that after receiving the complaint from Mr Pagalis and a complaint from Mr Choudhary[49], he proceeded to review the CCTV Footage and collect statements from employees who he identified as "reliable and independent". Mr Fenech obtained statements from Mr Choudhary, Ms Marcuse and Mr Thompson.[50]

• [77] On 30 September 2024, Mr Fenech issued Mr Lipari with a notice to attend a disciplinary interview on 3 October 2024.[51]

• [78] On 1 October 2024, Mr Lipari was provided with a copy of the statements of Mr Choudhary, Ms Marcuse and Mr Thompson.[52]

• [79] On 3 October 2024, Mr Lipari arrived at Mr Fenech's office for the disciplinary interview. Mr Lipari stood in the doorway and refused to enter Mr Fenech's office and participate in the interview with Mr Fenech and Ms Rebeiro because of Ms Rebeiro's involvement in other proceedings Mr Lipari had commenced in the Commission. After Ms Rebeiro was replaced with another employee, Mr Lipari still refused to participate in the meeting, stating that he did not have sufficient time to organise a support person. However, some preliminary discussions about the TWU Meeting on 18 September 2024 did occur. Later that day, Mr Fenech asked Mr Lipari to attend his office. Again, Mr Lipari stood in the doorway. During this meeting, Mr Fenech informed Mr Lipari that he was being stood down with pay, including shift penalties.[53]

• [80] On 9 October 2024, Mr Fenech sent correspondence to Mr Lipari titled 'Show Cause Notice'. After summarising the events of Parts 1 and 2 of the meeting on 18 September 2024 and the allegations against Mr Lipari, the Show Cause notice stated:[54]

The business has serious concerns about your behaviour in the workplace regarding this incident. The company sees this alleged behaviour as a breach of the Code of Conduct, specifically:

• Treat others with respect and dignity and not engage in bullying, harassment or discrimination;
• Not participate in any unethical activity, including the giving or receiving of improper payments or benefits or taking advantage of your position or opportunities arising from it for personal gain;

As well as the Respectful Workplace Behaviours Policy, specifically:

Not participating in behaviour that constitutes as:

• Discrimination
• Bullying
• Harassment
• Sexual Harassment
• Victimisation

You are given the opportunity to provide a response in writing to above mentioned allegations as per below.

1/ Please provide a detailed explanation and version of events from the meeting held on Wednesday 18th September 2024

2/Please provide a detailed explanation as to why the personal details of Bill Pagalis' workers compensation and medical information was disclosed to the meeting group.

3/ Please provide a detailed explanation as to why this behaviour should not result in disciplinary action, up to and including the termination of your employment.

You are invited to provide a written response to this letter. Your response will be required by 12.00 noon Friday 11th October 2024. Based on the information provided by you and the information provided during an internal investigation, the company will make a decision regarding your ongoing employment. The matters raised above have caused concern for the business. You could face disciplinary action up to and including termination of your employment.

• [81] On 10 October 2024, Mr Lipari sent his response to the Show Cause Notice which relevantly stated:[55]

After [Mr Pagalis] left the meal room several drivers were directing questions to me about what was going on. One driver asked why [Mr Pagalis] is never here. There were drivers in the meal room that didn't know [Mr Pagalis] was on workers compensation, so I said [Mr Pagalis] had had an accident last year and he was off for an injury, the reason he is here a few days per week is he is on a return-to-work certificate.

Whilst I was to the drivers [Mr Pagalis] returned into the meal room. [Mr Pagalis] began yelling over the top of what I was saying and tried to stop me from to the drivers. [Mr Pagalis] has then sat down at a table. The drivers in the room tried to ask [Mr Pagalis] questions to which [Mr Pagalis] continued to say, "I cannot answer questions." I did tell the drivers that it is not the delegate that has power it is the workgroup, if united, that have the power and that a delegate is just a representative of that workgroup, the mouthpiece for that workgroup.

It was short time later, under 5 minutes, Hassan Debal, Jose Quintal and I left the meal room. Hassan, Jose and I walked outside the depot and outside the neighbouring business to have a cigarette and discussion. Whilst we were David Fenech came outside for a cigarette. I saw David and approached him. I told David the events that [Mr Pagalis] had discussed in the yard. A short time later I left the depot to enjoy the rest of my day off.

2 / Please provide a detailed explanation as to why the personal details of [Mr Pagalis] workers compensation and medical information was disclosed to the meeting group.

After [Mr Pagalis] left the meal room there were several questions from drivers. One driver said, "I heard [Mr Pagalis'] licence and authority card are suspended". I that "I did not know and that the best person to speak to regarding that is [Mr Pagalis] when you see him next ask him." Another driver asked [Mr Pagalis] is never here and I responded by saying [Mr Pagalis] was off because he was injured.

3 / Please provide a detailed explanation as to why this behaviour should not result in disciplinary action, up to and including the termination of your employment.

I understand the seriousness of this matter and will cooperate fully with the investigation I know how someone feels being on the receiving end of such behaviour given past experiences.

At no time did I try to prevent or stop [Mr Pagalis] from leaving the meal room.

At no time did I ever to talk over the top of [Mr Pagalis] or address [Mr Pagalis] personally.

At no time did I ever attack, intimidate, discriminate, bully or victimise [Mr Pagalis].

At no time did I disclose personal details about [Mr Pagalis].

At no time did I discuss the personal details of [Mr Pagalis'] workers compensation or his qualifications.

At no time did I or anyone else swear or threaten anyone.

Throughout the I was respectful, considerate of others and of the current climate at Tempe Depot. Because of this I remained calm, listened intently and ensured that I DID NOT disrespect, discriminate, bully, harass, sexually harass or victimise anyone in any shape or form. I understand, more than others, the severity of the allegations and the process that needs to take place investigating the allegations.

• [82] On 14 October 2024, Mr Lipari and his support person attended a meeting with Mr Fenech and Ms Byrnes. During this meeting, Ms Byrnes advised Mr Lipari that Transit Systems was considering terminating his employment. Mr Lipari urged Ms Byrnes to obtain statements from other employees who were present at the TWU Meeting. Following this meeting, Mr Lipari was given a further opportunity to submit a response.[56]

• [83] Later that day, Mr Lipari submitted a further response which largely focused on the CCTV Footage of Part 1 of the TWU meeting. Mr Lipari repeated his request for Transit Systems to obtain additional statements and submitted that the termination of his employment is unwarranted.[57]

• [84] On 21 October 2024, Mr Lipari attended a meeting with Mr Fenech and Ms Byrnes. During this meeting, Ms Byrnes informed Mr Lipari that Transit Systems had decided to terminate his employment. Mr Lipari was given a letter of termination which relevantly states:[58]

This letter is to inform you that your employment with Transit Systems is terminated effective immediately for Misconduct.

This decision follows a thorough review of complaints received regarding your behaviour during a meeting held at the Tempe Depot hosted by the TWU Delegate on 18 September 2024.

Transit Systems has formed the opinion on the balance of probabilities that during this meeting you have engaged in aggressive and intimidating behaviour towards the delegate, and you have unlawfully disclosed confidential personal information regarding the delegate - by way of discussing his current workers compensation claim, current medical status and current licence status - to promote your personal ambitions.

This has been substantiated by way of witness statements and a thorough internal investigation conducted by the Tempe Depot Management.

You were issued a show cause letter on 9 October 2024 as part of our review and your written response was received 10 October 2024. You submitted a further response on 14 October 2024 after reviewing CCTV of the incident. The business has reviewed all the evidence collected, as well as taken into consideration your responses.

We have determined your behaviour has breached the following:

• Privacy Act 1988
  • You unlawfully disclosed the delegate's confidential health information without his consent in a manner that was not for a directly related purpose that the person would expect.
  • Your disclosure would likely cause the delegate embarrassment and was an imminent threat to his health.

• Code of Conduct
  • You have failed to treat others with respect and dignity and have engaged in harassment.
  • You have engaged in unethical activity, including taking advantage of your position or opportunities arising from it for personal gain.

• Employment Contract
  • You have demonstrated behaviour that breaches the Confidentiality of Information clause in your employment contract.

• Respectful Workplace Behaviours Policy
  • You have demonstrated behaviour that constitutes discrimination and harassment.

• [85] On 21 October 2024, Mr Lipari lodged the unfair dismissal application.

• [86] A threshold issue to determine is whether Mr Lipari has been dismissed from his employment.[59]

• [87] There was no dispute between the parties as to whether Mr Lipari has been dismissed, and I find that Mr Lipari's employment with Transit Systems was terminated at the initiative of Transit Systems.

• [88] I am therefore satisfied that Mr Lipari has been dismissed within the meaning of s.385 of the FW Act.

• [89] Section 396 of the FW Act requires the Commission to decide four initial matters before considering the merits of the application.

• [90] There is no dispute between the parties, and I am satisfied on the evidence that:

(a) the application was made within the period required in s.394(2);

(b) Mr Lipari is a person protected from unfair dismissal;

(c) the Small Business Fair Dismissal Code did not apply to Mr Lipari's dismissal; and

(d) Mr Lipari's dismissal was not a case of genuine redundancy.

Was the dismissal harsh, unjust or unreasonable?

• [91] Section 387 of the FW Act provides that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

• [92] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[60]

• [93] I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant's capacity or conduct?

• [94] In order for there to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[61] and should not be "capricious, fanciful, spiteful or prejudiced."[62] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[63]

• [95] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination.[64] "The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination."[65]

• [96] Transit Systems relies on two instances of misconduct:

(a) That Mr Lipari unlawfully disclosed confidential personal information regarding Mr Pagalis by way of discussing his current workers compensation claim, current medical status and current licence status to promote his personal ambitions; and

(b) That Mr Lipari engaged in aggressive and intimidating behaviour towards Mr Pagalis during the TWU Meeting on 18 September 2024.

Unlawful disclosure of confidential information during the TWU Meeting on 18 September 2024.

• [97] Although, I have found that Mr Lipari told the TWU meeting that Mr Pagalis had an accident, was receiving workers compensation, was suffering from a mental health (or psychological) injury, and that his driver licence and driver authority were suspended, Mr Lipari contends that this information was common knowledge at the Tempe Bus Depot and that he did not disclose any confidential information.

• [98] I accept Mr Lipari's submission on this point having regard to the following evidence:

• • Mr Pagalis stated that he had an accident, suffered a psychological injury and that he had told other employees at Tempe Bus Depot that he "had an accident and what happened";[66]

• • Mr Shankar stated that on one occasion another employee had questioned Mr Lipari in the meal room as to whether there was "any news" in relation to Mr Pagalis:[67]

• • Transit Systems did not challenge the evidence of Mr Lipari or Mr Quintal that it was common knowledge that Mr Pagalis had an accident and was absent on workers compensation;[68] and
• • Mr Moore gave evidence that Mr Pagalis called a "yard meeting" on 8 October 2024 and gave a "presentation on the status" of his workers compensation matter and that it was a "private matter".[69]

• [99] While the extent of the evidence on this point is limited, it appears to me that there was general discussion about Mr Pagalis' accident and injury amongst employees based at the Tempe Bus Depot, and that Mr Pagalis was part of those discussions. Of course, if this was not the case, how did Mr Lipari become aware of these matters? Neither Transit Systems or Mr Pagalis contend that Mr Pagalis' workers compensation details were confidentially disclosed to him for operational reasons - whether related to employer or TWU business - and there is no evidence to support that. The only conclusion available on the evidence is that there was general discussion or 'water cooler talk' throughout the yard about Mr Pagalis' situation.

• [100] I accept that Mr Lipari may have engaged in those discussions more than others and may have embellished some matters to the point of rumour, such as the status of Mr Pagalis' drivers' licence and driver authority, neither of which were suspended or deactivated. However, there is no evidence that Mr Lipari disclosed confidential medical records or health information beyond the broad description that was circulating around the yard.

• [101] I accept that Mr Lipari should not have discussed those details in the manner that he did and a warning in relation to this conduct would have been warranted. However, having regard to the circumstances set out above, Transit Systems has not demonstrated how Mr Lipari's conduct was a breach of his contract of employment, its relevant policies or code of conduct, or a breach of the Privacy Act 1998 or otherwise unlawful.

• [102] Accordingly, and having regard to the circumstances of this matter, I am not satisfied that Mr Lipari unlawfully disclosed confidential information at the meeting, or that the making of these statements at the meeting constituted a valid reason for dismissal.

Aggressive and intimidating behaviour towards Mr Pagalis during the TWU Meeting on 18 September 2024.

• [103] This allegation relates to Mr Lipari's conduct in Part 1 and Part 3 of the TWU Meeting on 18 September 2024.

• [104] In relation to Part 1, I have viewed the CCTV footage and listened to the audio recording and summarised the evidence at paragraphs [47]-[50] above. I am not satisfied that Mr Lipari engaged in conduct that could be described as aggressive or intimidating behaviour during this part of the meeting or conduct that was in breach of any relevant policy. Mr Lipari's conduct in this part of the meeting was no more than robust discussion about an issue that affected him personally and that was relevant to the interests of TWU members, namely, the removal of Mr Lipari's status as co-delegate for the Tempe Bus Depot.

• [105] However, in relation to Part 3, Mr Lipari's conduct takes on a different flavour. As set out at paragraph [74] above, Mr Lipari made the following statements to, or about, Mr Pagalis loudly and in a strong-willed tone:

• That rumour or gossip about Tempe Bus Depot being a problem child for Transit Systems stems from Mr Pagalis;

• That Mr Pagalis is engaging in bullying, intimidation and harassment of Mr Lipari;

• That he has evidence of Mr Pagalis bullying him "left, right and centre":

• That he will be applying to the Commission for a stop bullying order against Mr Pagalis and Mr Pagalis will be before the Commission and before a specific presidential member of the Commission;

• That Mr Pagalis is trying to divide the workgroup and repeated that Mr Pagalis is engaging in bullying, intimidation and harassment of Mr Lipari;

• Challenged Mr Pagalis to "put [his] balls on the line" and repeatedly referred to Mr Pagalis as "Kid"; and

• Repeated his claim that he will be applying to the Commission for a stop bullying order against Mr Pagalis because he has "more than enough evidence" and that Mr Pagalis will get "caned" in the Commission.

• [106] Despite stating that Mr Pagalis has engaged in bullying, intimidation and harassment of him and that he has an abundance of evidence, Mr Lipari did not make any complaint to Transit Systems about Mr Pagalis, nor did Mr Lipari make any application to the Commission for a stop bullying order against Mr Pagalis, and stated during the proceedings that he had no intention of doing so.[70]

• [107] In response to being asked to identify the alleged conduct engaged in by Mr Pagalis, Mr Lipari said that he felt uncomfortable in relation to the way Mr Pagalis informed the meeting that the TWU had removed Mr Lipari from his position as the co-delegate for Tempe Bus Depot. When asked to identify what it was that Mr Pagalis said, Mr Lipari stated, "I don't recall off the top of my head" but then went on to say that he felt he was being "attacked" in the meeting by Mr Pagalis because of Mr Pagalis' relationship with Mr Papadopoulos,[71] who I note did not attend the meeting.

• [108] Although Mr Lipari may have been caught off-guard by Mr Pagalis' announcement regarding the co-delegate issue, I reject the contention that Mr Pagalis engaged in any conduct that could be described as bullying, intimidation or harassment or that he was "attacking" Mr Lipari. There was nothing in the language or tone used by Mr Pagalis that could be described as intimidatory, inappropriate, or disrespectful. Rather, Mr Pagalis, who in my view appeared uncomfortable speaking on this issue, spoke in a soft and neutral tone and made it clear he was passing on a message from the TWU.

• [109] While Mr Lipari should have been informed of the TWU's decision by a representative of the TWU prior to the commencement of the meeting, that was no basis for Mr Lipari to make unfounded allegations of bullying, intimidation and harassment against Mr Pagalis, to address him disrespectfully as "Kid", or challenge him to a vote by provocatively stating "Put your balls on the line."

• [110] Furthermore, in circumstances where he had no intention of making any application for a stop bullying order, Mr Lipari's statements that he had an abundance of evidence, that Mr Pagalis will be before a specific presidential member of the Commission, and that Mr Pagalis will be "caned" in the Commission were clearly intended to intimidate Mr Pagalis and gain favour with the TWU membership by appearing to be in the know.

• [111] Mr Lipari's conduct was unreasonable and intimidatory, and constituted harassment of Mr Pagalis under clauses 4.2 and 4.3 of the Respectful Workplace Behaviours Policy (Bullying, Harassment, and Discrimination), was conduct contrary to the Code of Conduct, and constituted a valid reason for the termination of his employment.

• [112] Notwithstanding the employer's policies and code of conduct, Mr Lipari's conduct in Part 3 of the meeting was in any event, a valid reason for dismissal. In Linda Hanrick v Meridian Lawyers[72], Deputy President Sams opined that the making of false bullying allegations by an employee against other employees will ordinarily be a valid reason for dismissal. [73] I agree.

• [113] Although Mr Lipari did not make a complaint to Transit Systems, I consider the public way in which he falsely accused Mr Pagalis of bullying, intimidation and harassment to be more serious than had he made those allegations quietly in a complaint to management.

• [114] While Mr Lipari stated that the allegations made against Mr Pagalis were "bluff and bluster" made in the "heat of battle" in a union yard meeting,[74] that does not provide a "magic cloak" conferring immunity from accountability for conduct when interacting with other employees in the workplace.[75] Furthermore, at no stage has Mr Lipari expressed any remorse, and his initial position in these proceedings was to deny that he made those allegations, deny that told Mr Pagalis to "Put [his] balls on the line"[76], and deny that he attacked, intimidated or bullied Mr Pagalis.[77]

• [115] I have found that Transit Systems had a valid reason for the termination of Mr Lipari's employment. The finding of a valid reason weighs in favour that the dismissal was not harsh, unjust, or unreasonable.

Was the Applicant notified of the valid reason and given an opportunity to respond to that valid reason?

• [116] Proper consideration of s.387(b) requires a finding to be made as to whether the applicant "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[78]

• [117] Although Transit Systems raised various concerns with Mr Lipari regarding his conduct Parts 1 and 2 of the meeting and invited him to provide an account of his actions at the meeting generally, the specific issue of Mr Lipari's conduct in Part 3 of the meeting - in particular the making of false allegations of bullying against Mr Pagalis - was not notified to Mr Lipari as part of the show cause process, and there is no evidence of Transit System otherwise notifying Mr Lipari of this reason and giving him an opportunity to respond to that.

• [118] Accordingly, I find that Mr Lipari was not notified of the valid reason, nor provided with any opportunity to respond to that reason (s.387(c)) prior to the termination of his employment. These factors weigh in favour that Mr Lipari's was harsh, unjust or unreasonable.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

• [119] Transit Systems did not refuse to allow Mr Lipari to have a support person. This factor weighs neutrally in my consideration.

Was the Applicant warned about unsatisfactory performance before the dismissal?

• [120] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances. This factor weighs neutrally in my consideration.

To what degree would the size of the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [121] I find that the size of Transit Systems had no impact on the procedures followed in effecting the dismissal. This factor weighs neutrally in my consideration.

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [122] It is not in dispute, and I find that Transit Systems did not lack dedicated human resource management specialists and expertise. This factor weighs neutrally in my consideration.

• [123] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. Three matters arise under this factor.

• [124] Mr Lipari submitted that there were double standards and that he was treated differently compared to others for the same conduct, but did not identify any other employee who had engaged in the same conduct and was treated differently. Where the Commission is considering the issue of differential treatment, it must do so carefully, with caution, and ensure it is comparing apples with apples.[79] Having regard to the evidence before me, I am not satisfied Mr Lipari was subject to differential treatment.

• [125] I reject Mr Lipari's contention that he was dismissed in retaliation for making an application for an order to stop bullying against Mr Papadopoulos. There is no evidence supporting this contention and Mr Lipari did not put this to Mr Fenech or Ms Brynes in cross examination.

• [126] While not specifically raised by Mr Lipari, I have had regard to his age and the impact of the dismissal upon his personal and economic circumstances. In all of the circumstances, I do not consider that these matters support a finding that the dismissal was harsh, unjust or unreasonable.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

• [127] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[80]

• [128] While I have found that Mr Lipari was not afforded procedural fairness in relation to being notified of the specific conduct as the reason for dismissal and given an opportunity to respond to that prior to dismissal, in my overall assessment, these procedural deficiencies are outweighed by the valid reason for dismissal and the gravity of Mr Lipari's conduct.

• [129] Accordingly, I am not satisfied that the dismissal of Mr Lipari was harsh, unjust or unreasonable. In coming to this decision, I have taken into account all of the evidence and submissions of the parties. I have also had regard to the object stated at s.381(2) of the FW Act to ensure that a "fair go all round" is accorded.

• [130] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.

• [131] The Application is dismissed. An Order to that effect will be issued with this decision.

[1] [2010] SASC 153 (Nash)

[2] [2021] NSWSC 839.

[3] [2010] SASC 266 at [27]- [36].

[4] [2018] FCA 404 at [20]- [24]

[5] See also Togher trading as Patrick Togher Artists' Management v Alexander & Ors [2019] NSWDC 192 (Togher) at [21].

[6] See Schwenke v Silcar Pty Ltd [2013] FWCFB 9842 at [83]; Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878 at [83]; Kelly Walker (No. 2) [2019] FWC 4862 (Kelly) at [51]; Shane John Harris v Luka Financial Pty Limited [2020] FWC 5402 at [66]; Classic Ceramics (Importers) Pty Ltd v Mary Heywood, Thornton Tucker [2023] FWC 1511 at [22]; Christopher Louis Janssens v Rowan Bustin Pty Ltd [2023] FWC 623 at [14]; Karen Altham-Wooding v PKDKAdventures Pty Ltd [2024] FWC 2753 at [42]- [46].

[9] Hail Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2004] AIRC 670 at [48]- [50].

[10] Togher at [35]-[51], [64]-[73].

[11] [2019] FWC 4363 at [22]- [31].

[12] [2022] FWC 2853 at [17].

[13] [2022] FWC 487 at [66]- [67].

[14] Exhibit R10 (Hearing Book at p.122).

[15] Exhibit R10 (Hearing Book at pp.118-119, 125-135).

[20] Exhibit A1 (Hearing Book at p.32).

[21] Exhibit A1 (Hearing Book at p.33).

[23] Transcript at PN247, PN316, PN318.

[30] Exhibit A5 (Hearing Book at p.47).

[31] Transcript at PN535-PN536; PN573-PN574.

[33] Exhibit A6 (Hearing Book at p.46); Transcript at PN677.

[35] Exhibit R9 (Hearing Book at pp.96-99).

[39] Exhibit A4 (Hearing Book at p.151).

[44] Transcript at PN592-PN594, PN667-PN693.

[47] A reference to the RTBU delegate, Mr Peter Papadopoulos, who was the subject of an application for an order to stop bullying by Mr Lipari in matter AB2024/343. See Exhibit A2.

[49] Exhibit R9 (Hearing Book at p.95).

[50] Exhibit R7 at [2]-[5]; Exhibit R9 (Hearing Book at pp.94-99).

[51] Exhibit R7 at [6]; Exhibit R9 (Hearing Book at p.90).

[52] Exhibit R9 (Hearing Book at pp.100-101).

[53] Exhibit A1 (Hearing Book at pp.30-33); Exhibit R7 at [8]-[12]; Exhibit R9 (Hearing Book at pp.100-101).

[54] Exhibit R7 at [14]; Exhibit R9 (Hearing Book at pp.102-103).

[55] Exhibit A1 (Hearing Book at pp.32-33); Exhibit R7 at [15].

[56] Exhibit A1 (Hearing Book at p.34); Exhibit R7 at [16]-[18].

[57] Exhibit A1 (Hearing Book at pp.34-35)

[60] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].

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

[63] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.

[64] Edwards v Justice Giudice [1999] FCA 1836, [7]; Sydney Trains v Hilder [2020] FWCFB 1373 at [26].

[65] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]; Sydney Trains v Hilder [2020] FWCFB 1373 (Hatcher VP, Clancy DP, Bissett C) at [26].

[66] Exhibit R1 at [3]-[5]; Transcript at PN830-PN833

[68] See paragraphs [54] and [56] above and Transcript at PN327, PN536-PN540 and PN573-PN574.

[72] [2018] FWC 3256

[73] Ibid at [133]-[134], [140], upheld on appeal Linda Hanrick v Meridian Lawyers [2018] FWCFB 4590 (Catanzariti VP, Bull DP, Simpson C), at [9], [19]-[20].

[75] See Slater v Patrick Port Logistics Pty Ltd [2012] FWA 7204 at [133]- [135] (and authorities cited therein).

[77] Exhibit A1 (Hearing Book at p.33).

[78] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [55].

[79] John Sexton v Pacific National (ACT) Pty Ltd [2003] AIRC 506.

[80] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6]- [7].

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