Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application dismissed.

[1] On 26 December 2017, Mr Colin Reguero-Puente (Mr Reguero-Puente) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by the City of Rockingham (City).

[2] Mr Reguero-Puente, who had been employed by the City for nearly 28 years in building surveyor roles, was dismissed following an investigation into allegations by a number of employees of inappropriate conduct by Mr Reguero-Puente.

[3] The issues in dispute between the parties could not be resolved by conciliation before a staff conciliator or before myself and the matter was listed for arbitration. Taking into account the parties' circumstances, and their wishes, it was determined that a hearing rather than a determinative conference would be the most effective and efficient way to determine the matter.

[4] The matter was listed to be heard on 16 April 2018 (Hearing).

[5] On 14 February 2018, directions were issued for the conduct of this matter (First Directions). On 20 February 2018, Mr Reguero-Puente sought an extension to the filing dates and amended directions were issued later on 20 February 2018 (Second Directions). The Second Directions provided that Mr Reguero-Puente was required to file his materials by close of business on Thursday, 1 March 2018. Mr Reguero-Puente failed to file his materials in accordance with the Second Directions.

[6] On 22 February 2018 Mr Reguero-Puente made an application for Orders Requiring Production of Documents requiring the City to produce the documents stored under the headings "000 Personal" and "Staff Issues" on his work computer. On 26 February 2018 the City agreed to provide the documents requested by Mr Reguero-Puente.

[7] On 26 February 2018 Mr Reguero-Puente made an application for orders requiring a person to attend before the FWC. The application was not compliant with Rule 53(1) and Sub-rule 8(2) of the Fair Work Commission Rules 2013 (Cth)

[8] A telephone directions conference was held on 2 March 2018 to deal with Mr Reguero-Puente's non-compliance with the Second Directions and his application for orders requiring a person to attend before the FWC (Directions Conference).

[9] Following the Directions Conference, further amended directions were issued to the parties (Third Directions). The Third Directions granted Mr Reguero-Puente a final extension until 6 March 2018 to file his materials. The City was directed to file in the FWC and serve on Mr Reguero-Puente its materials by 20 March 2018. The Third Directions also directed that, if having reviewed the City's filed materials, Mr Reguero-Puente still sought orders requiring a person to attend before the FWC, he should file a compliant application supported by submissions by 27 March 2018.

[10] On 20 February 2018, my Chambers forwarded to Mr Reguero-Puente a copy of the FWC Practice Note on Orders to Attend and Orders to Produce, to assist him to prepare and file his application for orders requiring a person to attend before the FWC and his accompanying submissions.

[11] On 6 March 2018, Mr Reguero-Puente filed what he described as an outline of submissions (Outline of Submissions) and a bundle of documents. He did not file any witness statements notwithstanding that the First Directions had been accompanied by a guide to preparing witness statements and outlines of submissions. As Mr Reguero-Puente is self-represented, my Chambers forwarded to him a template outline of argument to assist him prepare and file his witness evidence.

[12] On 9 March 2018, Mr Reguero-Puente filed his outline of argument (Outline of Argument).

[13] On 20 March 2018, the City filed its materials. Those materials included a copy of an investigation report into the allegations which led to Mr Reguero-Puente's dismissal. Parts of the copy of the investigation report filed by the City and served on Mr Reguero-Puente were redacted. The City stated in its submissions that it did not seek to rely on those allegations contained in the redacted parts of the investigation report in its defence to Mr Reguero-Puente's claim that he was unfairly dismissed.

[14] On 27 March 2018, Mr Reguero-Puente filed a Form F51 seeking orders that 25 individuals attend the Hearing (Application to Attend) and a draft order for each witness. He did not file any submissions in support of his Application to Attend.

[15] On 3 April 2018, for the reasons set out in [ [2018] FWC 1926], orders to attend the Hearing were issued in relation to Ms Schae Haskett (Ms Haskett) and Ms Taryn Kennedy (Ms Kennedy).

[16] On 4 April 2018, the City made an application that the order that Ms Haskett attend the Hearing be set aside.

[17] On 12 April 2018, for the reasons set out in [ [2018] FWC 1990], the City's application to set aside the order that Ms Haskett attend the Hearing was granted.

[18] During the course of the Hearing, the City sought confidentiality orders in relation to the identity of certain witnesses and the content of various exhibits. The City were invited to file written submissions in relation to the proposed orders following the Hearing. Mr Reguero-Puente, who opposed the Orders, was invited to file submissions in response.

[19] Section 593 of the FW Act mandates that where a hearing is held that the hearing is held in public except as provided in subsection (3):

(1) The FWC is not required to hold a hearing in performing functions or exercising powers, except as provided by this Act.

(2) If the FWC holds a hearing in relation to a matter, the hearing must be held in public, except as provided by subsection (3).

(3) The FWC may make the following orders in relation to a hearing that the FWC holds if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

• (a) orders that all or part of the hearing is to be held in private;

• (b) orders about who may be present at the hearing;

• (c) orders prohibiting or restricting the publication of the names and addresses of persons appearing at the hearing;

• (d) orders prohibiting or restricting the publication of, or the disclosure to some or all of the persons present at the hearing of, the following:

  • (i) evidence given in the hearing;

  • (ii) matters contained in documents before the FWC in relation to the hearing.

(4) Subsection (3) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2))."

[20] The principle of open justice will usually be the paramount consideration in determining whether a confidentiality order of the type sought by the City should be made.[1]

[21] A departure from the principle of open justice is only justified where observance of the principle would frustrate the administration of justice by unfairly damaging some material private or public interest.[2]

[22] An order restricting the public availability of information will only be made if it is truly necessary to secure the proper administration of justice and such an order must do no more than is necessary to achieve the proper administration of justice. There must be some material upon which it can reasonably be concluded that it is necessary to make the order sought.[3]

[23] However, the powers contained in section 593(3) of the FW Act exist for a reason. The powers exist to be exercised, albeit infrequently and with caution.[4]

[24] The intent of section 593(3) of the FW Act is to secure the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or a person affected by the proceeding is either properly entitled to preserve or should be permitted to preserve in order that that person may effectively participate in the proceeding. The capacity of a person to effectively participate in a proceeding before the FWC may be affected by, for example, a reasonable concern held by the person that the disclosure and publication of that person's name or address might result in some form of retribution, harassment or intimidation.[5]

[25] The City submitted that in this matter, identifying the relevant witnesses or disclosing information that would enable them to be identified, may be expected to have a negative impact upon the ability of the witnesses to interact with other City employees. They further submitted that it would have a negative effect on the willingness of the City's other employees to inform the City of other inappropriate conduct that may occur, thereby rendering it more difficult for the City to detect inappropriate conduct and provide a safe working environment for its employees. The City further submitted that certain parts of materials filed by Mr Reguero-Puente (parts of his Outline of Submissions dated 6 March 2018 and parts of his Outline of Argument dated 9 March 2018) were not relevant to a matter in issue in the proceedings, and that their disclosure has the potential to cause unnecessary embarrassment and harm to persons with no involvement in the proceedings.

[26] It is common for sensitive issues to be litigated and for information that is extremely personal or confidential to be disclosed. This is sometimes an unavoidable by-product, and a necessary consequence of the application of the principle of open justice. Of itself this has never been regarded by the courts as a reason for the suppression of evidence or for an order restricting access to documents.[6]

[27] There were assertions made in the context of the appropriateness of reinstating Mr Reguero-Puente that the giving of evidence by the witnesses may result in Mr Reguero-Puente seeking some form of retribution or lead to Mr Reguero-Puente harassing or intimidating those witnesses if he returned to the workplace. However, there is no evidence before me of what, if any, negative impact on the ability of the witnesses to interact with other employees might be caused by their involvement as witnesses.

[28] If it is the case that the City believe that Mr Reguero-Puente's de facto spouse may engage in such conduct, then I suspect the orders requested would have little impact because it is likely that Mr Reguero-Puente's de facto spouse would have become aware of the identities of the witnesses in the course of Mr Reguero-Puente's preparation for the Hearing.

[29] Every day in hearings before the FWC, employees are called as witnesses to give evidence against former colleagues accused of poor performance or misconduct. Keeping the identity of these witnesses secret in the absence of some established threat or risk of harm to them runs contrary to the principles of open justice because it may promote the making of unsubstantiated, frivolous or vexatious allegations. If employees are aware that they may be called upon to give evidence in legal proceedings, they are more likely to ensure that any allegations they make are based in fact and are not frivolous or vexatious in nature.

[30] I am not satisfied that the City has established grounds upon which it is appropriate to depart from the principles of open justice and exercise the powers contained in section 593(3) of the FW Act.

[31] I therefore decline to make the orders sought by the City.

[32] Neither party sought leave to be represented at the Hearing. Mr Reguero-Puente appeared on his own behalf and Mr Doherty, Director Legal Services and General Counsel, appeared on behalf of the City. At the Hearing, Mr Reguero-Puente gave evidence on his own behalf in support of his Application. In accordance with the Order to Attend granted to Mr Reguero-Puente, Ms Kennedy attended at the Hearing and was examined in chief by Mr Reguero-Puente and cross-examined by Mr Doherty.

[33] During the course of the Hearing, I had reason to reconsider my decision not to grant Mr Reguero-Puente's application for an Order to Attend with respect to Mr Searcy. For the reasons given on transcript Mr Searcy, who was present at the Hearing, was sworn in and duly gave evidence.[7]

[34] The following witnesses gave evidence on behalf of the City:

1. Ms Amanda Nella, Principal Investigator at Nella Global Solutions (Investigator)

2. Mr Robert Maxwell Jeans, Director Planning and Development Services and Acting Chief Executive Officer of the City (Mr Jeans)

3. Ms Cassie Strebel, Senior Building Surveyor at the City (Ms Strebel)

4. Ms Carly Merrick (nee Frees), Building Compliance Officer at the City (Ms Merrick)

5. Ms Caitlin Logan, Administrator Officer - Events and Permits at the City (Ms Logan)

6. Ms Erica Scott, Coordinator Health and Building Services at the City (Ms Scott)

7. Mr Matthew Waters, Senior Building Surveyor at the City (Mr Waters)

[35] Following the conclusion of the Hearing, final written submissions were filed by Mr Reguero-Puente on 27 April 2018 and on behalf of the City on 27 April 2018.

[36] Despite my best endeavours to assist Mr Reguero-Puente as an unrepresented litigant to focus only on the issues to be determined in this matter, Mr Reguero-Puente's written and oral submissions contained a substantial amount of content which was not relevant to those issues. While I have read all of the materials filed by Mr Reguero-Puente, I have not addressed the irrelevant content in this decision.

[37] Mr Reguero-Puente commenced employment with the City on 5 February 1990. He was employed by the City in a variety of building surveying roles in the Building Services Department (BSD) until his dismissal on 6 December 2017. [8]

[38] At the time of his dismissal, Mr Reguero-Puente was employed in the position of Co-ordinator Building Services in the BSD at Level 8 Step 4 under the City of Rockingham Enterprise Agreement 2015 (EBA). Mr Robert Jeans was the Director of the BSD (Mr Jeans) at the time the events which led to Mr Reguero-Puente's dismissal occurred. At the time of the Hearing Mr Jeans was the City's Acting Chief Executive Officer.

[39] Between 29 July 2016 and 2 September 2016, Mr Reguero-Puente was on personal leave to receive mental health treatment after he was found in a stairwell at the City in a confused and disoriented state by colleagues.[9]

[40] On 5 September 2016, Mr Reguero-Puente commenced a return to work program which contained restrictions on both his duties and his hours of work. The restriction on his duties included that he was not to undertake any supervisory or leadership roles. The restrictions on his duties were intended to minimise any stress on Mr Reguero-Puente. The letter confirming the arrangements for his return to work expressly counselled Mr Reguero-Puente to inform his Manager if he felt that he was not coping or if any issues or concerns arose.[10]

[41] On 21 September 2016 Mr Reguero-Puente was assessed by a psychiatrist nominated by the City, Dr Lawrence Terace of OSH Group (Dr Terace). Dr Terace conducted a further assessment on 6 April 2017. [11]

[42] On 26 June 2017 Mr Reguero-Puente's treating psychiatrist certified Mr Reguero-Puente fit to return to his normal hours and duties of work.[12] In a letter dated 6 July 2017 the City acknowledged Mr Reguero-Puente's desire to return to his normal hours and duties of work and agreed that Mr Reguero-Puente could return to his normal hours of work but required he undergo a further assessment by Dr Terace before removing the restrictions on Mr Reguero-Puente's duties.[13]

[43] Mr Reguero-Puente was assessed by Dr Terace on 21 September 2017. In a report dated 18 October 2017, Dr Terace certified Mr Reguero-Puente fit to return to his normal hours and duties of work. In his report, Dr Terace recorded that Mr Reguero-Puente reported that his depression and anxiety had resolved and that he had been in complete remission since late June 2017. According to Dr Terace, Mr Reguero-Puente demonstrated no signs of any mood or anxiety disorders and that on the balance of probabilities, Mr Reguero-Puente was capable of making sound decisions in relation to his interactions with colleagues and the general public.[14]

[44] Sometime in early September 2017 two employees of the City, Ms Donna Shaw and Ms Gail O'Leary approached Mr Jeans and complained to him that Mr Reguero-Puente had sent them unwelcome and unsolicited emails and text messages after hours and on weekends.[15]

[45] On 12 September 2017, Mr Jeans met with Mr Reguero-Puente and informed Mr Reguero-Puente (without identifying the women involved) that several female employees had advised Mr Jeans that Mr Reguero-Puente had made comments of a personal nature about them and had been sending them unwanted text messages of a personal nature outside normal working hours, and often late at night. Mr Jeans told Mr Reguero-Puente that he must cease this behaviour immediately. Mr Jeans says that Mr Reguero-Puente expressed remorse about his conduct and agreed that he would cease it immediately.[16]

[46] In early October 2017, Mr Jeans was informed by Ms Strebel that Mr Reguero-Puente was continuing to send unwanted emails and text messages.

[47] In a letter dated 12 October 2017, Mr Reguero-Puente was advised that he was suspended on full pay pending the outcome of an investigation into allegations of misconduct. The letter foreshadowed that Mr Reguero-Puente would be required to attend a meeting at which he would be expected to respond to the allegations made against him.[17]

[48] In a letter to Mr Reguero-Puente dated 13 November 2017, the City provided particulars of nineteen allegations of misconduct by Mr Reguero-Puente (Allegation Letter).[18] These allegations related to Mr Reguero-Puente's interactions with the following City employees:

a. City staff who attended a staff development workshop on 12 October 2017

[49] A further allegation alleged that Mr Reguero-Puente had taken cash from a property owner and had failed to account for those monies.

[50] In the same letter, Mr Reguero-Puente was informed that an independent investigator, Ms Amanda Nella, had been engaged to conduct an investigation into the allegations (Investigator). The Investigator is an administrative investigator with 18 years' experience and she is a licensed Inquiry Agent and Investigator pursuant to the Security and Related Activities (Control) Act 1996 (WA). [19]

[51] The Allegation Letter contained an invitation for Mr Reguero-Puente to attend a meeting with the Investigator and invited him to bring a support person with him. The Allegation Letter contained a warning that if Mr Reguero-Puente did not participate in the interview, the Investigator would proceed on the basis of the information available to her.[20]

[52] In an email dated 15 November 2017, Mr Reguero-Puente indicated that he would be in contact with the Investigator in order to arrange a time to meet with her and respond to the allegations made against him.[21] He confirmed again on 16 November 2017 that he intended to meet with the Investigator.[22] On 22 November 2017, the Investigator called Mr Reguero-Puente and was informed by Mr Reguero-Puente that he would be available on 24 November 2017 for an interview with her. However when the Investigator contacted Mr Reguero-Puente the next day to confirm the interview he informed her he was no longer available.[23]

[53] During this period, Mr Reguero-Puente made a number of requests for information. Significant portions of the information requested appeared to be irrelevant to the allegations. Notwithstanding this, the City say it provided Mr Reguero-Puente with all relevant information and a significant proportion of information which the City considered to be irrelevant.[24]

[54] In an email dated 27 November 2017, Mr Reguero-Puente was urged to arrange a meeting with the Investigator as soon as possible so that his response to the allegations could be documented.[25]

[55] On 29 November 2017, Mr Jeans wrote to Mr Reguero-Puente noting that as Mr Reguero-Puente had not yet met with the Investigator that Mr Jeans had arranged for her to meet with Mr Reguero-Puente on 1 December 2017. Mr Jeans repeated the warning to Mr Reguero-Puente that if he did not participate in the interview the Investigator would proceed to conclude her investigation without his input.[26]

[56] On the morning of 30 November 2017, Mr Reguero-Puente sought to reschedule his meeting with the Investigator from 1pm on 1 December 2017 to 4 December 2017 on the basis that he had an appointment at 11:15am on 1 December 2017 for a blood test. On the instructions of the City, the Investigator declined to further delay her investigation but offered to travel to meet Mr Reguero-Puente at a location and a time convenient to him on 1 December 2017 to enable him to attend his medical appointment and for the investigation interview to occur. [27]

[57] On the morning of 1 December 2017 Mr Reguero-Puente confirmed that he would meet the Investigator at 1pm that day at his home. However, shortly before the meeting Mr Reguero-Puente advised the Investigator that he had decided not to proceed with the scheduled meeting. [28]

[58] The City instructed the Investigator to complete her investigation in the absence of a response from Mr Reguero-Puente.[29] She did so and provided a report to the City dated 6 December 2017 (Investigation Report). The Investigator found that all the allegations were substantiated.[30]

[59] In a letter dated 6 December 2017, Mr Reguero-Puente was informed that he was summarily dismissed on the grounds that the allegations had been substantiated (Termination Letter). In the same letter he was informed that three of the allegations had been referred to the Corruption and Crime Commission as acts of serious misconduct under the Corruption, Crime and Misconduct Act 2003 (WA).[31]

[60] Mr Reguero-Puente submits he was unfairly dismissed and seeks an Order that he be reinstated.[32]

Is Mr Reguero-Puente protected from unfair dismissal?

[61] Section 396 of the FW Act requires that the FWC decide four preliminary issues before considering the merits of an application for unfair dismissal:

"396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy."

[62] The parties agreed and I am satisfied that the Application was made within the 21 day period required by subsection 394(2) of the FW Act.[33] The parties agreed and I am satisfied that the Small Business Fair Dismissal Code, which applies to employers of fewer than 15 employees, does not apply to Mr Reguero-Puente's dismissal. There is no assertion that Mr Reguero-Puente's dismissal involved redundancy.[34]

[63] Section 382 of the FW Act sets out the circumstances that must exist for Mr Reguero-Puente 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

(b) one or more of the following apply:

• (i) a modern award covers the person;

• (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."

[64] The parties agreed and I am satisfied that Mr Reguero-Puente has completed the minimum employment period, and is covered by the EBA.[35] Consequently, I am satisfied Mr Reguero-Puente was protected from unfair dismissal.

[65] Section 385 of the FW Act sets out the circumstances in which a dismissal will be considered unfair:

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

(a) the person has been dismissed; and

(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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388."

[66] It is not contested, and I am satisfied, that Mr Reguero-Puente was dismissed for the purposes of section 385(a) of the FW Act and that his dismissal was not a case of genuine redundancy, nor subject to the Small Business Fair Dismissal Code.[36]

Was Mr Reguero-Puente's dismissal harsh, unjust or unreasonable?

[67] Having been satisfied of each of subsections 385(a), (c) and (d) of the FW Act, it is necessary to determine whether Mr Reguero-Puente's dismissal was harsh, unjust or unreasonable. The criteria to be taken into account when assessing whether a dismissal was harsh, unjust or unreasonable are set out at section 387 of the FW 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."

[68] The ambit of the conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained in Byrne v Australian Airlines Ltd (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."

[69] An employer must have a valid reason for the dismissal of an employee protected from unfair dismissal, although it need not be the reason given to the employee at the time of the dismissal.[37] The reasons should be 'sound, defensible and well founded'[38] and should not be 'capricious, fanciful, spiteful or prejudiced.'[39] 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. The requirement to be reasonable must be applied in a practical common sense way to ensure that the employer and employee are each treated fairly.[40]

[70] As is evident from the summary of the interlocutory stages of this matter recounted earlier in this decision, establishing the basis upon which Mr Reguero-Puente contested his dismissal was unfair was a fraught process. He failed to meet multiple extensions to filing dates. Although directed to do so, Mr Reguero-Puente did not file a witness statement, initially filing only what he described as an Outline of Submissions. This document failed to address the relevant legal principles and contained only limited evidence relevant to the issues in dispute. After considerable prompting by my Chambers, Mr Reguero-Puente eventually completed a template Outline of Argument. At the Hearing he was provided with a checklist of the elements necessary to establish an entitlement to a remedy for unfair dismissal.[41]

[71] When invited to give oral evidence-in-chief at the Hearing, Mr Reguero-Puente stated that he had nothing to add to the information contained in his Outline of Submissions and Outline of Argument.[42] At the close of proceedings he was provided with another opportunity to give further oral evidence. He did so but he did not substantially expand on his previous evidence.[43]

[72] Mr Reguero-Puente did not call any witnesses to give evidence in support of his case. He did seek Orders to Attend for a large number of City employees, but was unable to establish grounds for those Orders to be made for all but two of those individuals, being Ms Kennedy and Ms Haskett. The evidence of the witness who did give evidence in accordance with the Orders to Attend (Ms Kennedy) was entirely unhelpful to Mr Reguero-Puente's case.

[73] In essence it appears that the grounds upon which Mr Reguero-Puente asserts his dismissal was harsh, unjust and unreasonable are that:

• The text messages he sent were welcomed and reciprocated.

• The other allegations against him could not be substantiated because there were no witnesses to the events.

• The behaviour for which he was dismissed was a consequence of mental illness triggered by his workload at the City and his treatment at the hands of other City employees.

• The disciplinary action, and its impact on him, was disproportionate to the gravity of the misconduct.

[74] The City submitted that the dismissal was not harsh, unjust or unreasonable because:

• Mr Reguero-Puente had acted in an inappropriate manner towards a number of the City's employees;

• Mr Reguero-Puente had received notification from the City regarding the reasons for his dismissal;

• Mr Reguero-Puente was given numerous opportunities to respond to the reasons provided for his dismissal, but elected not to respond;

• There was no unreasonable refusal to allow Mr Reguero-Puente to have access to a support person;

• That the City followed industry best practice in dealing with the matter of Mr Reguero-Puente's dismissal; and

• That the conduct complained of was such that termination of Mr Reguero-Puente's employment was necessary, regardless of the length of his service, for the protection of the City's employees.

[75] To determine whether Mr Reguero-Puente's dismissal was, in the circumstances, harsh, unjust or unreasonable, it is necessary to consider each of the criteria set out in section 387 of the FW Act.

Did the City have a valid reason for dismissing Mr Reguero-Puente? (s.387(a))

[76] An employer must have a valid reason for the dismissal of an employee protected from unfair dismissal. A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful, or prejudiced. [44] The reason or reasons relied upon by an employer as a valid reason for dismissal, need not be the ones given to the employee at the time of the dismissal.[45]

[77] According to the Termination Letter, the reasons for which Mr Reguero-Puente was dismissed was the substantiation of the nineteen allegations particularised in the Allegation Letter via an independent investigation conducted by the Investigator.

[78] These allegations related to Mr Reguero-Puente's interactions with the following City employees: Ms Merrick, Ms Strebel, Ms Logan, Ms Haskett and City staff who attended a staff development workshop on 12 October 2017. A further allegation alleged that Mr Reguero-Puente had taken cash from a rate payer and had failed to account for those monies.

Allegations with respect to Ms Merrick (nee Frees)

[79] The allegations involving Ms Merrick were framed in the Allegation Letter as follows:

"• On a number of occasions, you made inappropriate comments to C Frees such as you would consistently compliment her and say comments such as, "I'll let you go up the stairs first so I can watch your arse', 'You look hot. Did I just say that out loud', 'I would like to see you in those heels only', you stated to her that 'her arse looks good in her work uniform', 'your arse looks good, but I can't say that as I have done my sexual harassment course so I can't', 'Can you leave your smell in my car next time', 'Can you leave your underwear, a bra or something, in my car next time', 'Can you spray your perfume in the car so that (partner) gets jealous'

• On a number of occasions you made comments about C Frees being 'kinky' due to the presence of cable ties in your work vehicle
• On a number of occasions you asked personal information of C Frees' partner such as what does he look like and when is he away with work commitments
• During one Christmas period you asked C Frees to meet with you when the other staff had left. You gave her a present of chocolates and pulled her in for a hug and a kiss on the cheek. C Frees was made to feel uncomfortable.
• You requested that C Frees pose for a photograph in her uniform for you so that you could take a picture of her. When she queried why you need a photograph of her you replied 'for home'
• You made comments to C Frees about not liking pubic hair on women and asking her thoughts on the matter
• On 4 October 2017 during a business meeting at a café you asked C Frees and made multiple comments as to whether she was loud in the bedroom
• On 12 October 2017, you spoke with C Frees during a lunchtime break at a workshop, while she was texting her mother. You asked for a picture of her mother. This upset C Frees
• You sent the following texts to C Frees:
  • 'I was waiting for you to come back so I could get a goodbye kiss
  • Could try E ... (a reference to C Frees making money as an Escort Worker)
  • And no one can know about these messages - no matter what. I am kidding with the sexual overtones so I will cut back ... It's just my banter
  • Aaaahhh... can't let you in all my secrets. Might need them to go up against you one day. When you have me on sexual harassment.'"

[80] Ms Merrick has been employed by the City since 6 August 2012. In her role as a Building Compliance Officer she worked in the same department as Mr Reguero-Puente until a restructure on 30 October 2017. Her role is classified at Level 5 under the EBA.[46]

[81] Mr Reguero-Puente says that all the text messages he sent Ms Merrick were welcomed and reciprocated.[47] He says that at no point did she tell him to stop sending messages.[48] In support of this assertion he tendered a document containing messages exchanged between himself and Ms Merrick between 7 July 2017 and 10 October 2017 which was marked as Exhibit A21.

[82] Ms Merrick concedes that she did not expressly tell Mr Reguero-Puente to stop sending messages but denies that the messages were welcomed. She says that Mr Reguero-Puente had acted inappropriately towards her since she began her employment with the City however because he held a position of seniority she felt obliged to respond to his messages. She also explained that she did not approach more senior management or the Human Resources Department about Mr Reguero-Puente's conduct because she was concerned that she would still have to work with Mr Reguero-Puente and that he would make her life extremely difficult. Ms Merrick says she believed that this would occur because she had observed him be rude to and belittle other employees who had told him to stop messaging them and/or had declined his advances. She gave as an example Ms Kaya Serfulas, who Ms Merrick asserts Mr Reguero-Puente also invited back to his home. Ms Merrick said that she eventually came forward and reported Mr Reguero-Puente's conduct when she became aware of the investigation.[49]

[83] In addition to including a number of the text exchanges referred to in the Allegation Letter, Exhibit A7 contains examples of multiple messages sent by Mr Reguero-Puente containing sexual innuendo or which are overly familiar in nature. Many of these were sent well outside of normal business hours. The following exchange provides an example:

"My gosh, children are hard work! So yes (emoji)"

"We weren't planning on this one (emoji) little Harry will be an only child me thinks (emoji)

"Oh as in having him, as much as a surprise as he was (emoji)"

"Yeah I realise that. My joke was when you said 'I don't think my body could handle another one' I said only for 3min relating to the part where you make the baby (emoji)"

[84] And this exchange on 26 September 2017:

"The question is, is it your colour you'll be looking at the pics (emoji)"

[85] On another occasion when Ms Merrick asked if she could leave some books in the City vehicle that Mr Reguero-Puente used to commute to work he responded with: "... No problem just don't leave your underwear as I would have to explain that."[50]

[86] A review of Exhibit A7 also reveals that if Ms Merrick did not respond, Mr Reguero-Puente would send her further messages. Where she did reply (in a manner which appears intended to curtail the conversation) Mr Reguero-Puente continued to persist in sending messages. For example:

"Hey, sorry I haven't had time to catch up properly. Not intentional. You're looking good. I hope you haven't been missing the boy during the day too much as it would be a first ... talk soon (emoji)"

"Hi, no problems at all. I understand you are busy so it's all good (emoji)

Thank you - I've tried not to let myself go since motherhood haha.

I didn't want to message you too early incase it was an RDO!"

"I got what you were getting at. Lets not confuse it with past and presence tense (emoji)"

"How hard is it to explain 'seeing actually'? (emoji)"

"Haha it seems rather difficult on a Friday evening (emoji)"

"More difficult for me coz I'm at the newish King Rd brewery. I will make up my own compliment/fantasy then and will add 'you' between 'seeing' and 'actually' (emoji)

"It's really nice there! Bit cold tonight though (emoji)

Haha I won't comment on that ... you can roll with that (emoji)"

"I didn't hear a word you said when I walked past.

I didn't hear what you said about my screen yesterday either and I'm still trying to work out if last Friday was a compliment (emoji)"

[88] Mr Reguero-Puente does not deny that he made the comments he is alleged in the Allegation Letter to have made. Rather, Mr Reguero-Puente says that the allegations cannot be substantiated. He also says that there are insufficient particulars of where and when he is alleged to have made the comments.[51] Ms Merrick insists that Mr Reguero-Puente made the comments attributed to him. Those comments are consistent with the content of the text messages tendered by Mr Reguero-Puente of his text exchanges with Ms Merrick and with the other complainants.

[89] Mr Reguero-Puente says that the comment about cable ties attributed to him in the allegations was in fact a comment made by Ms Merrick.[52] Ms Merrick denies this. She says that she uses the cable ties for her work and that she left various tools in the City vehicle Mr Reguero-Puente used to commute to work. She insists that Mr Reguero-Puente made the comments attributed to him. These comments are consistent with the tone of texts sent by Mr Reguero-Puente to Ms Merrick and to other complainants.

[90] In relation to the gift of chocolates he says he gave gifts to other staff as well.[53] In his closing submissions he asserted that he could not recall the incident but was certain that it would not have been after other staff had left.[54]

[91] It would appear from the following exchange that Mr Reguero-Puente was aware that his interactions with Ms Merrick were inappropriate:

"Aaaahhh ... can't let you in all my secrets. Might need them to go up against you one day..."

[92] And the following message from Mr Reguero-Puente to Ms Merrick at 12:20pm on 10 October 2017 referred to in the allegations:

"And no one can know about these messages no matter what. I am kidding with the sexual overtones so I will cut back ... its just my banter."

[93] The allegations involving Ms Strebel were framed in the Allegation Letter as follows:

"• You made numerous unsolicited texts to C Strebel outside of work hours and at unacceptable times of the night

• You ask C Strebel in one text message is she looked 'like the just been fucked look' after she had a car accident
• You also asked C Strebel if she was getting dressed up or going for the 'just fucked' look
• You also asked C Strebel for a photograph of herself for your Facebook once she was 'all dolled up'"

[94] Ms Strebel is 31 years old. She is employed in the role of Senior Building Surveyor in the BSD which is a level 7 position under the EBA. She commenced her current employment with the City on 4 August 2016 after a three year break in which she worked in the private sector.[55]

[95] Mr Reguero-Puente says that the all the text messages he sent Ms Strebel were welcomed and reciprocated.[56] In support of this assertion he tendered a document which contained messages exchanged between himself and Ms Strebel between 6 July 2016 and 18 February 2018 which was marked as Exhibit A7.

[96] Ms Strebel denies that Mr Reguero-Puente's messages were all welcomed and reciprocated. Ms Strebel says that she and Mr Reguero-Puente have been colleagues on and off for 12 years. She concedes that she invited Mr Reguero-Puente and his de facto partner to her wedding. Ms Strebel says that she would respond to Mr Reguero-Puente's humour with what he describes as banter. However, Ms Strebel says that often his texts were of a flirty nature and that the frequency and timing of the texts had become increasingly inappropriate, being sent out of working hours late at night and in the early morning. She said her husband became annoyed with the unsolicited messages and that she approached Mr Reguero-Puente and requested that he desist from sending her text messages. Ms Strebel says that despite her request, the texting did not stop and that if she failed to respond to Mr Reguero-Puente's text messages, he would message her using the City's internal messaging system.[57]

[97] Ms Strebel says that Exhibit A6 is incomplete.[58] This would appear to be likely given that the chain of replies in some places doesn't make sense, see for example 27 May 2017, 11 July 2017 and 13 July 2017 text exchanges, and that there are lengthy gaps between text conversations.

[98] A review of what is contained in Exhibit A7 is not inconsistent with Ms Strebel's evidence. In addition to those messages cited in the allegations, Mr Reguero-Puente's messages were often overfamiliar for work colleagues for example:

"...Next time you can leave a lipstick kiss on the mirror"

[99] There are also examples of multiple texts sent by Mr Reguero-Puente without reply from Ms Strebel and/or outside of business hours. See for example the message sent by Mr Reguero-Puente at 9:55pm on 23 June 2017 to which Ms Strebel did not reply. See also the five consecutive messages sent by Mr Reguero-Puente between 1:51pm on 19 August 2017 (a Saturday) and 12:24pm on 2 September 2017 without response from Ms Strebel.

[100] Mr Reguero-Puente also says that texts referring to the "just f***** look" were taken out of context.[59] According to Mr Reguero-Puente, it was a phrase that Ms Strebel and her husband used to describe her looking untidy. Ms Strebel denies this and says that it was a phrase used in the workplace to describe vagrants outside the City offices and that she found it offensive when Mr Reguero-Puente directed the phrase at her repeatedly. Mr Reguero-Puente conceded in the Hearing that it was not appropriate.[60]

[101] In relation to the allegation that Mr Reguero-Puente made numerous unsolicited comments in relation to her breast augmentation Mr Reguero-Puente says that Ms Strebel discussed her procedure openly in the workplace.[61] Ms Strebel says that Mr Reguero-Puente guessed that she had the procedure done and raised it publicly in the workplace. Ms Strebel says that she was embarrassed and did not want to lie about what happened so she uncomfortably responded to his questions. She also alleges that Mr Reguero-Puente said that next time that she went he would come to make sure she got more substantial augmentation.[62]

[102] The allegations involving Ms Logan were framed in the Allegation Letter as follows:

"On 8 September 2017, at 22.50 hours you texted C Logan 'I like your tongue being the centre piece ...' A minute later you texted her 'It's alright. I checked the EBA. It's off the clock so no harassment suits', accompanied by a 'kiss blowing' emoji. At 22.52 you sent another text 'Agree?'"

[103] Ms Logan has been employed by the City since 13 July 2015 and is 26 years old. She is employed as an Administration Officer - Events and Permits in the Health Services Department of the City in a Level 3 position under the EBA.

[104] Mr Reguero-Puente says that all the text messages he sent Ms Logan were welcomed and reciprocated.[63] In support of this assertion, Mr Reguero-Puente filed a document recording text message exchanges between himself and Ms Logan between 3 September 2017 and 27 September 2017 which was marked as Exhibit A16.

[105] Ms Logan says while she responded to Mr Reguero-Puente's messages initially, the content and timing of his messages soon became inappropriate and she ceased engaging in banter with him.[64] This evidence appears consistent with the message chain contained in Exhibit A16. At first Ms Logan responds to Mr Reguero-Puente, prompting the text message referred to in the Allegation Letter. Then, when the tone of Mr Reguero-Puente's text deteriorates, her responses become more delayed and less expansive prompting the text exchange referred to in the allegations.

[106] Eventually, when Ms Logan did not reply to a series of messages sent by Mr Reguero-Puente between 8 September 2017 and 22 September 2017, Mr Reguero-Puente sent the following message at 12:22pm on 23 September 2017, which appears to demonstrate that he was aware his texting was inappropriate:

"Please don't tell anyone I messaged you. I have already had a talking too. I was genuinely concerned for you. My deepest and sincere honest apologies. I promise it will not happen again. I will delete your number."

[107] This appears likely to be a reference to the counselling session that Mr Jeans held with Mr Reguero-Puente on 12 September 2017.

[108] The allegations involving Ms Haskett were framed in the Allegation Letter as follows:

"In September 2017 you sent S Haskett a number of inappropriate and unsolicited photographs. The photographs were of the following:

You in a bedroom reflected in a mirror in your underwear and a white shirt

You in a bedroom reflected in a mirror wearing only underwear

After sending S Haskett a number of inappropriate and unsolicited photographs you repeatedly requested that S Haskett send you an inappropriate photograph of herself. S Haskett felt pressured and harassed you into providing the photograph given your seniority"

[109] At the time of the events which led to Mr Reguero-Puente's dismissal, Ms Haskett was 23[65] and employed by the City at Level 3 under the EBA.[66]

[110] By the time of the Hearing, Ms Haskett had resigned from the City and relocated to Ireland. She declined to participate in the Hearing and for the reasons set out in the decision at [ [2018] FWC 1990], I set aside the Order that she attend the Hearing. She therefore did not give evidence at the Hearing and was not available for cross-examination.

[111] Mr Reguero-Puente submitted in his Closing Submissions that the allegations made by Ms Haskett are inadmissible because she did not appear as a witness. He did not identify the legal basis on which he made this submission.[67] I have however taken into account the unavailability of Ms Haskett for cross-examination by Mr Reguero-Puente in assessing the evidence relating to her allegations.

[112] Mr Reguero-Puente says that all the messages he sent Ms Haskett were welcomed and reciprocated.[68] In support of this assertion, Mr Reguero-Puente filed a document recording text exchanges between himself and Ms Haskett between 14 May 2017 and 19 February 2018 which was marked as Exhibit A6. He also filed a document recording the metadata of text message exchanges between himself and Ms Haskett between 17 September 2017 and 21 February 2018 which was marked as Exhibit A5.

[113] The Investigator gave evidence that in the course of the investigation she interviewed Ms Haskett and that the Investigation Report accurately reflects the evidence given to her by Ms Haskett in that interview. Ms Haskett told the Investigator that the text messages between herself and Mr Reguero-Puente were initially innocent but quickly escalated to sexualised comments. This is consistent with the text messages contained in Exhibit A6 in which Mr Reguero-Puente begins to send texts of a flirty nature in the early hours of the morning of 9 September 2017. In the same text exchange Mr Reguero-Puente followed those texts with a text stating:

"Don't worry, I checked the eba. Not on the clock so doesn't matter."[69]

[114] This appears to suggest that Mr Reguero-Puente was aware that the content of his texts might not be appropriate. As the text exchange on 9 September 2017 becomes increasingly sexualised, Ms Haskett warns "Don't get yourself in trouble, or me".[70]

[115] Two days later Mr Reguero-Puente texted Ms Haskett saying "I reread the messages and thought - ooops are we good?". He goes on to say "Prob over stepped the mark. But I must admit I enjoyed it ..." Ms Haskett responds "Haha!! Just little ... maybe ..."[71]

[116] Ms Haskett conceded to the Investigator that she then began to exchange 'flirty' texts with Mr Reguero-Puente. This is consistent with the text messages contained in Exhibit A6 although the most sexually explicit messages in Exhibit A6 are sent by Mr Reguero-Puente. Ms Haskett on the most parts appears to be 'playing along' rather than instigating the sexual banter.[72] Ms Haskett told the Investigator that she felt pressured and harassed to do so for a number of reasons. These reasons included because of how she had observed Mr Reguero-Puente treat other staff who did not engage with him, her relative inexperience and Mr Reguero-Puente's seniority to herself, the significant difference in their ages, and because of her sympathy towards Mr Reguero-Puente following his mental health issues in the previous year.

[117] Ms Haskett told the Investigator that in late September 2017 Mr Reguero-Puente sent her the pictures of himself partially and fully undressed. Ms Haskett claims that Mr Reguero-Puente persistently requested a naked photograph of Ms Haskett. She admits that she eventually relented and sent a photo of herself naked but immediately regretted doing so. According to Ms Haskett, from that point on, Mr Reguero-Puente would text her repeatedly demanding to know why she would not answer. Ms Haskett told the Investigator that the contact was constant and unrelenting and occurred within and outside of working hours.[73]

[118] Based on the evidence of Mr Reguero-Puente tendered in Exhibit A5 and Exhibit A6 it appears that Mr Reguero-Puente sent Ms Haskett an inordinate number of messages often late and night or in the early hours of the morning which were not responded to by Ms Haskett. For example between 10:01pm on 19 September 2017 and 5:27am on 20 September 2017 he sent her 70 messages without any response from her. Between 8:44pm on 21 September and 5:55am on 22 September 2017 he sent her 66 messages without a response from her.[74]

[119] Whether or not Mr Reguero-Puente demanded the compromising photos of Ms Haskett and/or text responses from Ms Haskett is unclear because the content of those particular messages was not tendered. However Ms Haskett's assertions about the number and frequency of unreturned text messages is consistent with the evidence of the text messages Mr Reguero-Puente tendered.

[120] Mr Reguero-Puente was clearly conscious of the seniority differential between himself and Ms Haskett given his text of 15 September 2017 where he states: "I've always wanted to play ... you just didn't know it ... being your 'boss' and all ...".[75]

Allegation with respect to misappropriation of City Monies

[121] The allegations wish respect to the misappropriation of City monies were framed in the Allegation Letter as follows:

"During the week beginning 9 October 2017, you attended a property at 18 Carnegie Loop, Coolongup, and accepted a Building Permit application for that property and $160 in cash, You did not provide the property owner(s) with a receipt. The Building Permit application was not progressed and the monies were not provided to the City."

[122] Mr Reguero-Puente claims he went 'beyond the call of duty' to visit the property owner at her home to collect the fee because the property owner had no means of transport to attend the City offices and pay in person, and that the property owner had previously attended at the City offices in a distressed state because she was unable to lodge her application. Mr Reguero-Puente says that he was escorted from the City's offices before he had an opportunity to receipt the monies.[76]

[123] Mr Reguero-Puente did not call the Property Owner as a witness.

[124] The City became aware that Mr Reguero-Puente had collected cash from a property owner without receipting it when the property owner attended at the City offices on 24 October 2017 to check on the progress of her application. Mr Reguero-Puente concedes that he took $160 cash from the property owner on Wednesday 11 October 2017 without providing a receipt or the correct change. The property owner's daughter, who was present when the money was taken by Mr Reguero-Puente, was interviewed by the Investigator. She told the Investigator that Mr Reguero-Puente had assured her mother that the application would be processed and an approval and receipt would be emailed to them by Monday 16 October 2017.[77]

[125] Mr Reguero-Puente was suspended from employment with the City on 12 October 2017.[78]

[126] Ms Scott, who is the Coordinator, Health and Building Services in the BSD a level 9 position under the EBA gave evidence in relation to the City's practices and policies in relation to the collection and receipt of monies from property owners. She says that accepting cash from building owners in the field is not part of the City's protocols or processes.[79]

[127] According to Ms Scott, the money in question was not receipted until 15 December 2017 when Mr Reguero-Puente's de facto spouse provided the cash to Ms Scott's manager. At the hearing, Mr Reguero-Puente was unable to identify any protocol, process or practice of accepting cash payments for Building Permits in the field. Nor did he provide an explanation of why the money in question was not provided to the City until nearly two months after he received it.

[128] Whether or not Mr Reguero-Puente intended to misappropriate the money, the acceptance of cash in the field contrary to protocol, process or practice although of itself might not be sufficiently serious to warrant his dismissal on its own it is a certainly a matter which as part of a pattern of incidents which display poor judgement could justify disciplinary sanction.

[129] The allegations with respect to Mr Reguero-Puente's conduct at the Staff Workshop were framed as follows:

"• After a staff development workshop on 12 October 2017, you made comments that were overheard by multiple staff that:

• You didn't trust anyone in the work area
• You were not supported by staff in the work area
• That revenge is a dish best served cold, inferring you would take revenge against staff
• You would be looking in your revision (SIC) mirror to run over staff
• You sat at your desk and 'laughed manically"

[130] Mr Reguero-Puente says that the allegations concerning his behaviour at the Staff Workshop could not be substantiated and that he was not in a position of seniority at the time he is alleged to have made those comments. He specifically denies saying that 'revenge was a dish best served cold' or that he would run over staff.[80]

[131] Ms Strebel said that she felt unsafe after Mr Reguero-Puente's comments and actions during and after the staff workshop. She said that Mr Reguero-Puente behaved aggressively at the staff workshop, that he was restless and kept talking over people.[81] Ms Kennedy, who was ordered to attend the Hearing on application by Mr Reguero-Puente, also gave evidence that Mr Reguero-Puente was acting out of character and had an angry demeanour during the Staff Workshop which caused her to feel unsettled.[82] Ms Scott gave evidence that Mr Reguero-Puente was both aggressive and defensive during the workshop, to the point where one staff member, Ms Chloe George, walked out in tears.[83] Mr Waters says that Mr Reguero-Puente was not engaged in the workshop and was generally aggressive.[84]

[132] Following the workshop, staff returned to their desks. Ms Kennedy and Mr Waters gave evidence that they overheard Mr Reguero-Puente threaten to run over staff and say that he didn't trust anyone.[85] Mr Waters said that he was concerned about Mr Reguero-Puente and approached Mr Reguero-Puente to suggest that he should speak to someone about how he was feeling. Mr Waters says that Mr Reguero-Puente told him that 'revenge is a dish best served cold.'[86] Ms Strebel says that she heard Mr Reguero-Puente make this comment. Ms Kennedy, Mr Waters and Ms Strebel say they heard Mr Reguero-Puente laughing in a disturbing or hysterical manner.[87] Ms Kennedy says that she was so concerned about Mr Reguero-Puente's comments and his hysterical laughter that she reported these things to Ms Scott.[88] Ms Scott confirms this.[89] Ms Strebel says she reported her concerns to Mr Jeans.[90]

[133] It is true, as Mr Reguero-Puente asserts, that a number of allegations are of a 'he said, she said' character and not necessary independently verifiable. However I note that evidence of the City's witnesses was corroborated by other witnesses, whereas none of Mr Reguero-Puente's contested evidence was corroborated by another witness.

[134] In fact, Ms Kennedy, who gave evidence as a consequence of application by Mr Reguero-Puente that she be ordered to attend, gave evidence consistent with that of the City's witnesses. For example, Ms Kennedy gave evidence that she had received unsolicited text messages of a non-business nature and 'selfies' from Mr Reguero-Puente on her personal mobile out of business hours. Ms Kennedy says that she presumed Mr Reguero-Puente obtained her personal phone number when she used her personal phone to call in sick one day. Ms Kennedy says one of the text messages referred to her as a subordinate. She said the messages made her feel uncomfortable.[91]

[135] Having had the opportunity to observe the witnesses give their evidence and noting the similarity between the allegations of text messages which were corroborated by copies of the text messages and the allegations which could not be corroborated, I am satisfied that the evidence of the City's witnesses that could not be corroborated is likely to be credible.

[136] I am satisfied that Mr Reguero-Puente's behaviour during and shortly after the Staff Workshop caused his colleagues to have reasonable concerns about Mr Reguero-Puente's mental wellbeing and consequently their own wellbeing and safety.

[137] The failure to account for monies and the aggressive behaviour at the staff workshop are part of a bigger picture of a lack of good judgement or a sense of what conduct is or is not appropriate in the workplace.

[138] Leaving aside the evidence of the witnesses, the exhibits tendered by Mr Reguero-Puente alone, reveal a pattern of Mr Reguero-Puente sending overfamiliar, sexually loaded and sexually explicit texts and images to young female co-workers, often late at night and in the early hours of the morning.

[139] This is not a case of an office romance between consenting adults. This is not a case of a man being led astray by a siren-like younger woman. Mr Reguero-Puente's own evidence reveals a pattern of him befriending much younger female subordinates and then progressively sending more frequent and increasingly less appropriate messages. Given the consistency in the evidence of these women with respect to the text messages I am satisfied that their evidence with respect to the verbal comments Mr Reguero-Puente is alleged to have made is credible.

[140] For the most part, Mr Reguero-Puente's defence to these allegations is that they could not be substantiated, not that they were factually false. In fact, he acknowledged under oath that in the main, he did not assert that the evidence of the witnesses was manufactured.[92]

[141] The key pillar of Mr Reguero-Puente's defence is not that he did not do what he is alleged to have done, but rather that the women should have told him to stop. Some of the women gave evidence that they did in fact do so and it made no difference. Others clearly tried to curtail conversations that Mr Reguero-Puente was trying to lead in an inappropriate direction. Others admittedly participated. All say that to the extent that they did respond, they felt they had little choice given Mr Reguero-Puente's seniority and his behaviour in the workplace.

[142] Mr Reguero-Puente asserted that he did not hold any position of seniority over the complainants because at that time of the complaints he did not have any 'position title or any power'.[93]

[143] Mr Reguero-Puente had been employed at the City for nearly 30 years. He has been promoted to a senior position in the BSD and he was considered to be an experienced and senior member of staff. At the time of the allegations he was engaged as a Level 8 and therefore held a position more senior than Ms Haskett employed as a Level 3, Ms Merrick employed as a Level 5 and Ms Strebel employed at levels 6 and 7. Notwithstanding that he was on restricted duties as a function of his return to work plan implemented by the City, based on the expert medical advice of his own and the City's doctors, he maintained his substantive pay and conditions. He was also a decade or several decades older than the women to whom he sent salacious texts late at night and early in the morning.

[144] With all due respect to Mr Reguero-Puente, who is 45 years old and in a long term relationship of more than 12 years, it is difficult to comprehend that Mr Reguero-Puente could have reasonably believed that all of these much younger women, seriously welcomed his advances.

[145] In this day and age young women should not have to tell their older superiors that they do not want to be sent salacious texts during or after working hours, nor have comments of a sexual nature made about them, or be directed toward them in their workplace.

[146] Furthermore, Mr Reguero-Puente was expressly warned that his conduct was inappropriate by Mr Jeans. Notwithstanding this, he continued to behave inappropriately.

[147] Despite Mr Reguero-Puente's assertion that he genuinely believed his conduct was at all times welcome and reciprocated, the text message histories he tendered reveals that he was aware that there are boundaries of acceptable behaviour and that he had overstepped those boundaries. More relevantly it confirms that as soon as they became aware of his conduct, Mr Reguero-Puente was informed by the City that his behaviour was inappropriate and that it must stop. Nevertheless, Mr Reguero-Puente continued to engage with much younger, more junior staff in an inappropriate manner.

[148] Consequently, I find that there was a valid reason for Mr Reguero-Puente's dismissal.

Was Mr Reguero-Puente notified of the reason for his dismissal? (s.387(b))

[149] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[94] in explicit terms,[95] and in plain and clear terms.[96] In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151, a Full Bench of the Australian Industrial Relations Commission, dealing with a similar provision of the Workplace Relations Act 1996 (Cth), stated that:

"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."

[150] The allegations in relation to which Mr Reguero-Puente was ultimately dismissed were set out in the Allegation Letter dated 13 November 2017. In the Allegation Letter the City provided particulars of nineteen allegations of misconduct by Mr Reguero-Puente.

[151] Mr Reguero-Puente concedes, and I am satisfied that Mr Reguero-Puente was notified of the reasons for his dismissal.[97]

Was Mr Reguero-Puente Provided with an Opportunity to respond to the reasons for his Dismissal? (s.387(c))

[152] 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.[98]

[153] Not only did the City provide Mr Reguero-Puente with multiple opportunities to respond to the reasons for which he was ultimately dismissed, the City specifically warned him of the consequences of failing to do so. When he continued to decline to take advantage of the opportunity to do so voluntarily, the City directed him to attend a meeting with the Investigator for this to occur.

[154] Mr Reguero-Puente concedes that he was given an opportunity to respond to the reasons for his dismissal[99] but says that he decided not to participate in the investigation meeting because he did not believe that that the investigation was impartial, he was not provided with all the information he had requested from the City and he had received legal advice not to attend. [100]

[155] Mr Reguero-Puente did not identify a reasonable basis for his belief that the investigation was not impartial. A simple Google search, which Mr Reguero-Puente could have easily undertaken to ease his concerns, reveals the details of the qualifications, experience and expertise of the Investigator and her employer. This suggests that she was appropriately qualified and experienced to undertake the investigation. A review of the investigation report reveals that the Investigator did in fact discharge her duty to conduct the investigation in a balanced and thorough manner.

[156] Mr Reguero-Puente made a number of requests for information during the course of the investigation. Significant portions of the information requested appeared to be irrelevant to the allegations. Notwithstanding this, the City appeared to provide all relevant information requested by Mr Reguero-Puente and a majority of the information which appeared to be irrelevant.[101] The balance of information sought by Mr Reguero-Puente was dealt with in the interlocutory stages of these proceedings and he confirmed that he did not press the need for any additional information in order to properly present his case.

[157] It is unclear on what basis Mr Reguero-Puente was advised to refuse to comply with a lawful instruction to attend an investigation meeting to respond to allegations of misconduct.

[158] I find Mr Reguero-Puente was given multiple opportunities to respond to the reason for his dismissal but chose not to take advantage of those opportunities.

Was Mr Reguero-Puente unreasonably refused a support person? (s.387(d))

[159] 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. There is however, no positive obligation on an employer to offer an employee the opportunity to have a support person.[102]

[160] Mr Reguero-Puente was invited to bring a support person with him to his meeting with the Investigator.

[161] Mr Reguero-Puente concedes that the City did not unreasonably refuse him having a support person present at discussions relating to his dismissal.[103]

[162] I therefore find that the City did not unreasonably refuse to allow Mr Reguero-Puente to have a support person present at discussions relating to his dismissal.

Was Mr Reguero-Puente given warnings regarding his unsatisfactory performance? (s.387(e))

[163] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee's capacity than their conduct.[104]

[164] It is agreed by the parties that Mr Reguero-Puente was dismissed for misconduct and not for unsatisfactory performance.[105] I have therefore treated this criterion as neutral.

What is the impact of the size of the City and the presence or absence of dedicated human resources management specialist/expertise on the procedures followed? (s.387(f) and s.387(g))?

[165] The City acknowledged that it had the appropriate expertise and resources to ensure that Mr Reguero-Puente's dismissal occurred for valid reasons and was conducted in a procedurally fair manner. The City submitted that it followed industry best practice in its dealings with Mr Reguero-Puente. [106]

[166] Mr Reguero-Puente submitted that his dismissal was unfair because despite its resources, the City did not comply with its own policies and procedures with respect to the process it used to investigate the allegations against him.[107] In support of this submission Mr Reguero-Puente points to various aspects of the City's Executive Policy - Grievance Resolution Policy[108] and Procedure - Grievance Resolution [109] which he says was not complied with in the course of the investigation.

[167] Mr Searcy gave evidence that the City considered the applicability of this policy and procedure at the time it commenced the investigation into the allegations, however decided that the appropriate policy and supporting procedure in the circumstances was the Executive Policy - Preventing Workplace Bullying[110] and the Procedure - Preventing Workplace Bullying, Violence and Aggression.[111] Consistently with the Preventing Workplace Bullying policy and procedure, the City appointed the Investigator. In the course of reaching her findings considered, the Investigator considered the applicability of the misconduct provisions of City of Rockingham Code of Conduct, the misconduct provisions of the Corruption Crime and Misconduct Act 2003 (WA), the theft as a servant provisions of the Criminal Code, the Executive Policy - Preventing Workplace Bullying, and the sexual harassment provisions of the _Sex Discrimination Act 1984 (_Cth).

[168] I am satisfied that the City's decision to apply the Bullying Policy and Bullying Procedure were appropriate in the circumstances. I am satisfied that Mr Reguero-Puente's conduct was in breach of the Bullying Policy and the Code of Conduct. Furthermore I am satisfied that even in the absence of those policies Mr Reguero-Puente's conduct was of such a serious nature that it would have formed a valid reason for his dismissal.

[169] Mr Reguero-Puente also asserts that the procedure adopted by the City to investigate the allegations was unfair because the City took proactive steps to identify other employees who had been in receipt of inappropriate texts or the target of inappropriate comments or conduct by Mr Reguero-Puente.[112]

[170] The City has a positive obligation to ensure that its staff are not subjected to sexual harassment, bullying or other inappropriate conduct. Having been put on notice by one or more employees of Mr Reguero-Puente's conduct, the City cannot be criticised for endeavouring to identify other affected employees, both to assess the scope of Mr Reguero-Puente's alleged misconduct and to ensure that affected employees received appropriate support from their employer.

[171] I find the size of the employer's enterprise did not adversely impact on the procedures followed in effecting the dismissal.

Are there any other relevant matters? (s.387(h))?

[172] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant to the determination of whether the dismissal of Mr Reguero-Puente was harsh, unjust or unreasonable.

[173] Mr Reguero-Puente asserts that the behaviour for which he was dismissed was a consequence of mental illness triggered by his workload at the City and his treatment at the hands of other staff.

"In August 2016 I had a mental illness from performing 10-12 hours per day whilst noting [SIC] getting paid for eight (8) and approximately 60 cents per hour"[113]

[174] In support of this assertion, Mr Reguero-Puente tendered a letter from Dr Raymond C.K. Wu (Dr Wu) dated 8 March 2018.[114] In that letter Dr Wu stated that Mr Reguero-Puente suffered "a Major Depressive Episode and, subsequently a manic episode" which together were indicative of "an episode of a Bipolar Depression". Dr Wu went on to state that Mr Reguero-Puente was receiving medical treatment and his mood had stabilised. Dr Wu's letter does not make it clear when the episodes occurred. Based on the summary of Mr Reguero-Puente's medical and treatment history contained in Dr Terace's report of 18 October 2017 and the evidence that Dr Wu certified Mr Reguero-Puente fit for work on 26 June 2017, it would appear that Dr Wu is referring to Mr Reguero-Puente's period of mental illness in July-September 2016.[115] Dr Wu's letter does not identify Mr Reguero-Puente's employment or employer as the cause of his mental ill health. To the contrary, Dr Wu's letter makes it clear that it is Mr Reguero-Puente who attributes the cause of his mental ill health to work-related stress.[116]

[175] Mr Reguero-Puente did not call Dr Wu as a witness or seek an Order to Attend for Dr Wu notwithstanding he did so in relation to 25 other potential witnesses. Dr Wu's evidence is therefore limited to the few sentences contained in his letter of 8 March 2018. The context and veracity of that evidence could not be assessed in the absence of evidence of Dr Wu's qualifications to give such evidence or his availability for cross-examination at the Hearing.

[176] Mr Reguero-Puente was warned that his written closing submissions were not an opportunity to adduce new evidence. He confirmed his understanding of this in the opening of his closing submissions as follows:

"I am aware that closing submissions are not intended to dispute or introduce any new evidence"[117]

[177] Notwithstanding this, Mr Reguero-Puente included with his submissions two information sheets on mental health which he sought to rely on to establish that the behaviour for which he was dismissed was a consequence of mental illness triggered by his workload at the City and his treatment at the hands of other staff. Even if I were to admit this evidence, it suffers from the same defects as the limited medical evidence already before me. That is, the evidence does not establish a causal link between his employment and his mental health and his misconduct. Nor is the credentials of the author of the newsletter, or the accuracy of its content, verifiable in cross-examination.

[178] To the extent that Mr Reguero-Puente's workload in any way contributed to his mental ill health, the City assert that he was responsible for any excessive workload and any anxiety or pressure he suffered as a consequence of that workload because Mr Reguero-Puente resisted efforts by the City to assist him to reduce and/or manage his workload. In this regard, the City point to Mr Jeans' evidence that Mr Jeans had met with Mr Reguero-Puente on many occasions, to encourage him to develop a structure to better manage the workload of the BSD. Mr Jeans stated that on numerous occasions, he recommended to Mr Reguero-Puente that Mr Reguero-Puente appoint a Co-Ordinator and two Senior Building Surveyors.[118]

"I suppose to sum up, Mr Reguero-Puente was not acting in vacuum. He was getting specific leadership and management advice as to how to manage the situation and that advice was not provided on one occasion, it was through multiple meetings with him to provide clear guidance as to how to manage that."[119]

[179] Mr Reguero-Puente also submitted that the duration of his employment with the City ought to be taken into account in determining whether his dismissal was harsh, unjust and/or unreasonable.[120] Mr Reguero-Puente was employed by the City for nearly 28 years. He says his service during this period was 'impeccable'.

[180] The City submitted that Mr Reguero-Puente's conduct since his dismissal further supports their position that Mr Reguero-Puente poses a risk to its employees and that the trust and confidence necessary for an employment relationship between the City and Mr Reguero-Puente is permanently destroyed. In support of this, they pointed to a text message Mr Reguero-Puente sent to Ms Strebel, which was contained in a bundle of text messages tendered by Mr Reguero-Puente and marked Exhibit A7.

"Fluffy stuff over finally over as expected and PLANNED. Now is the item for real facts. Team "me" knows everything. Time for truth. Has BJ made you feel warm and fuzzy? That's what he does best. Individual lying DOG CUNT worlds are about to collapse. Now go off and get a restraining order. Another fucking bullshit bluff. Say goodbye to what you know. Things are about to get extremely different. Patience is my key. Destroying liars is my objective."

[181] Mr Jeans is generally known by the nickname "BJ".[121]

[182] As a consequence of that text message, Mr Reguero-Puente's comments (that 'revenge was a dish best served cold'), and an incident post Mr Reguero-Puente's dismissal, where Mr Reguero-Puente was present at an external venue where the BSD were holding a Christmas party, Ms Strebel became concerned for the safety of herself and her children. Following the incident at the Christmas party, Ms Strebel stated that she moved herself and her children out of their home for several days, and that she sought assistance from the City to install a security monitoring system in her home.[122]

[183] Mr Jeans gave evidence that the conduct of Mr Reguero-Puente both during his employment and since his dismissal has caused a number of other staff members to be anxious and fearful of working with Mr Reguero-Puente.[123] Ms Merrick gave evidence that Mr Reguero-Puente's conduct had led her to have concerns about her personal safety and at her request the City had made a financial contribution towards the installation of a security system at her home.[124] Ms Merrick says that she based these concerns on her observations of him 'losing his cool' or getting angry in the office. [125] When challenged on her evidence by Mr Reguero-Puente to give examples she stated:

"When things haven't gone your way I've seen you get quite angry, and if that's in your body language you've turned quite red, you've started sweating, you've started swearing and you've walked out"[126]

[184] Ms Merrick conceded that she had never witnessed Mr Reguero-Puente assault anyone.[127]

[185] Ms Scott says that from about October 2017 Mr Reguero-Puente started displaying aggressive tendencies. For example, telling her stories of how he was going out on 'late night drinking sessions and getting into fights' and sending her numerous text messages about how things outside of work were making him feel angry. Ms Scott also recounted a meeting with Mr Reguero-Puente after her appointment as Co-Ordinator, during which he mentioned that if another employee (Mr Jerome Abrahams) did not leave the City's employ then Mr Reguero-Puente would end up leaving on an assault charge.[128] Ms Scott stated that notwithstanding that Mr Reguero-Puente had not made any direct threats to her personal safety she says these events, amongst others, caused to her to have concerns for her safety and the safety of other City employees.[129]

[186] The City also pointed to the various allegations contained in Mr Reguero-Puente's materials about impropriety on Mr Jeans' part which were irrelevant to the issues in this matter and which were unsubstantiated by Mr Reguero-Puente. The City submitted that these allegations have permanently destroyed the relationship between Mr Reguero-Puente and Mr Jeans, making the continued employment of Mr Reguero-Puente within the BSD untenable.[130]

[187] Mr Reguero-Puente's lengthy period of service is a factor that weighs heavily in his favour and it may have been something that Mr Jeans took into account when he chose to verbally counsel Mr Reguero-Puente when he first became aware of the allegations of Mr Reguero-Puente's misconduct rather than immediately commencing an investigation.

[188] However, having been warned about the inappropriateness of his conduct, Mr Reguero-Puente continued to behave inappropriately.

[189] To this day Mr Reguero-Puente continues to assert that his conduct ought to be excused because it was consensual. Despite the opportunity to review his text message exchanges in preparation for the hearing, he still appears to fail to recognise the inappropriateness of the frequency, timing and content of his messages to multiple, less senior, female colleagues. His position appears to be that he is entitled to say and do what he pleases unless his female colleagues tell him emphatically in writing to stop.

[190] There is nothing to suggest that Mr Reguero-Puente would not continue the same pattern of behaviour leading to further young women being subjected to his inappropriate overtures if he were to return to the workplace. This risk outweighs the weight that might attach to his length of service.

[191] Consistent with a lack of acceptance of personal responsibility for the circumstances in which he finds himself, Mr Reguero-Puente asserted that the behaviour for which he was dismissed was a consequence of mental illness triggered by his workload at the City and his treatment at the hands of other staff. Mr Reguero-Puente did not call any expert medical witnesses to give evidence in relation to the nature of his mental illness or its cause. The very limited documented medical evidence which he filed was untested - the qualifications of its author to give such expert evidence were not established and its veracity not tested in cross-examination. More relevantly, it does not establish a causal link between any mental illness Mr Reguero-Puente suffered and his misconduct, nor does it establish a causal link between his employment and his mental illness.

[192] Having considered each of the matters specified in s.387, I am satisfied the dismissal of Mr Reguero-Puente was not harsh, unjust or unreasonable. Accordingly, I find Mr Reguero-Puente's dismissal was not unfair.

[193] An order (PR608039) will be issued with this decision.

P Doherty with B Searcy for the City of Rockingham.

[1] Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774 [6].

[2] Seven Network (Operations) Limited & Ors v James Warburton (No1) [2011] NSWSC 385 at [2].

[4] Worker A, Worker B, Worker C, Worker D and Worker E [2016] FWC 6524 at [21].

[6] Seven Network (Operations) Limited & Ors v James Warburton (No1) [2011] NSWSC 385 at [4].

[14] Exhibit A1 at [1.8]; Exhibit A4.

[15] Transcript at PN937-PN942; Exhibit R5 at [3].

[16] Exhibit A1 at [3.1]; Exhibit R5 at [3]-[6].

[17] Exhibit A1 at [3.2] and Exhibit A8.

[27] Exhibit A1 at [3.6]-[3.8]; Exhibit R4 at Attachment 26.

[37] Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 at 373, 377-378.

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

[42] Ibid at PN163 and PN172 and PN555.

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

[45] Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 at 373 and 377-378.

[49] Exhibit R7 at [7]-[8], [12]-[13]; Transcript at PN1491-PN1494, PN1521-1528.

[53] Exhibit A2 [36]; Closing Submissions of Mr Reguero-Puente filed on 27 April 2018.

[54] Closing Submissions of Mr Reguero-Puente filed on 27 April 2018.

[57] Exhibit R6 at [6], [11], Annexure 1; Transcript at PN1411, PN1423; Exhibit A3 at 4c.

[58] Exhibit R6 at [10]; Transcript at PN1406-1410.

[60] Exhibit R6 at [10]-[11]; Transcript at PN1412-PN1422.

[67] Closing Submissions of Mr Reguero-Puente filed on 27 April 2018.

[77] Exhibit R3 at [7.12 ]-[7.18] and 4c; Exhibit R9.

[78] Exhibit R9 at Annexure 1; Transcript at PN1671-1674.

[81] Exhibit R6 at Annexure 1, Transcript at PN1452.

[87] Exhibit R6 at Annexure 1, Transcript at 584.

[94] Chubb Security Australia Pty Ltd v Thomas (Print S2679) at [41].

[95] Crozier v Palazzo Cooration Pty Ltd (2000) 98 IR 137 at [151].

[96] Previsic v Australian Quarantine Inspection Services (Print Q3730).

[98] RMIT v Asher (2010) 194 IR 1, 14-15.

[100] Exhibit A2 at [29]; Exhibit A3 at 4c & 6.

[102] Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542].

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

[106] Ibid at PN645, Exhibit R1 at 4.2.

[107] Exhibit A3 at 4d; Closing Submissions of Mr Reguero-Puente filed on 27 April 2018.

[111] Exhibit A12; Transcript at PN1925-1926.

[112] Closing Submissions of Mr Reguero-Puente filed on 27 April 2018.

[117] Closing Submissions of Mr Reguero-Puente filed on 27 April 2018.

[122] Ibid at PN1425-PN1433; Exhibit R6.

[129] Exhibit R9 Annexure 1; Transcript at PN1686.

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