The subordinate employee evidence and findings
174 Relevant to the determination of many of the claims in this matter is whether the conduct forming the basis for the reasons for termination alleged by Mr Bramich, Ms Fookes, Mr Montgomery, Mr Butler, Ms Andersen and Ms Borden occurred. My findings with respect to each of their evidence are largely contained in this part, though I note I have made additional findings above.
175 HEAD Oceania claims that part of the reason for Mr Dorsch's termination were the allegations made by Ms Fookes as to the excessive work demands placed on her by Mr Dorsch.
176 It was Ms Fookes' evidence that she reported to both Mr Dorsch and Mr Prete. However, it was her evidence that Mr Dorsch was her "unit manager" who bore primary responsibility for her supervision and relevantly her workload. It was her evidence that in or around August 2020 she was directed by Mr Dorsch to undertake a number of responsibilities that she believed were not within the scope of her role. Mr Dorsch disputed this. It was variously his evidence that he denied directing Ms Fookes to under the tasks she says she was required by him to undertake. I do not accept his evidence over hers.
177 Mr Dorsch repeatedly had a propensity to suggest that work supervision or allocation was Mr Prete's responsibility and to seek to diminish the role he had within the Australian office. His attempted self-infantilisation is not accepted. Whilst I accept that there were limits to his ability to obtain additional staff, he did not have infinite resources (as with any business) and he did not have responsibility for the Zoggs business, to the extent that his staff in the Yatala office had to deal with conflicting priorities and systems arising from the integration, it was his responsibility.
178 I accept Ms Fookes' evidence that she dealt with a number of complaints regarding the process of blocking deliveries, sought Mr Dorsch's assistance to arrange a meeting with staff and Mr Dorsch refused. Ms Fookes' workload increased as a result of the Zoggs integration and she sought Mr Dorsch's assistance in engaging external human resources assistance, which Mr Dorsch refused. Whilst I accept that Ms Fookes conceded that her workload pressures arose from a number of events including the Zoggs integration, communications issues arising from the Hong Kong office and staff shortages, she maintained that her workload pressures were also the result of the sheer volume of the work. Contrary to the submission of Mr Dorsch that "at no point did Ms Fookes state that the Applicant was a cause of her excessive workload", Ms Fookes stated directly when questioned that Mr Dorsch caused the additional work because he was directing her to do it. To the extent that there is a dispute between the evidence of Ms Fookes and Mr Dorsch, I accept Ms Fookes' evidence for the reasons identified above and also by reason of the following.
179 Ms Fookes resolved to resign in early April 2021 because of her work hours but did not follow through because Mr Dorsch agreed to employ another person to assist her. Thereafter, however, Ms Fookes recounted working excessive hours whilst she was on holiday, which it was her view that Mr Dorsch did not take action to alleviate. As a manager, it was his responsibility to manage employee perceptions (and even misperceptions) about his demands and ability to manage workloads.
180 Ms Fookes complained, in July 2021, to Mr Davies about Mr Dorsch's behaviour towards her and other staff members and the lack of support she perceived she was receiving. She also recalled speaking to Mr Davies about Mr Dorsch's intimidating and condescending behaviour towards her. Ms Fookes gave no direct evidence of the conversation with Mr Davies nor the conduct giving rise to discussion. Whilst Mr Davies gave evidence of the conversation, it was admitted on a non-hearsay purpose basis. Accordingly, I make no finding as to the allegation of intimidation or condescension.
181 In mid-September 2021, Ms Fookes sought to discuss the leave process with Mr Dorsch. It was part of Ms Fookes' remit to deal with the employee leave recording during the fortnightly payroll for Australia and New Zealand. Ms Fookes had to undertake two different processes by reason of the Zoggs integration. Ms Fookes recalled that Mr Dorsch had said that he did not care about the Zoggs process, to which she responded that she worked for HEAD, which included Zoggs, and that the current process was very time consuming. She also said that she could not see if leave is approved by him or not. It was her recollection that Mr Dorsch rebuffed making any changes and said that implementing a new system should not take priority over all other jobs. In response, she swore and asked him to get out of her office.
182 Mr Dorsch disputed that aspects of this conversation occurred, including that he had said he did not care what Zoggs did. Whilst I do not think ultimately there is a necessity to resolve the difference between them, if there is, I would prefer Ms Fookes' account over Mr Dorsch's. Even if I were to accept his account, the substance reveals that Ms Fookes was trying (as she had tried for a long time) to suggest initiatives that would improve systems and processes, as well as reduce her workload and that of others. She felt Mr Dorsch would not assist her with this. His inaction increased her workload.
183 I accept her evidence that she resigned, in part, because of his conduct. I do not accept Mr Dorsch's submission that Ms Fookes conceded that the "true reason" for her resignation was her excessive workload only. No significant challenge was made to her evidence and, to the extent that she was pressed as to the reason, under cross-examination, contrary to Mr Dorsch's submission, Mr Fookes stated that "part" of the reason for her resignation was working excessive hours, but this was not the sole reason.
184 As already alluded to above, Mr Montgomery gave evidence regarding two conversations in August and November 2021 with Mr Dorsch where Mr Dorsch was rude to him and swore. Such was the conduct that Mr Montgomery called Mr Dorsch out on his behaviour, saying in the first conversation, "Matthias, your tone is rude, and I don't appreciate the incessant criticism. You cannot speak to people that way" and, in the second conversation, "I don't appreciate you speaking to me like that.". The second conversation response was provoked by Mr Dorsch asking for documents, in response to which Mr Montgomery said he did not have them and that what he was asking for was outside his expertise, to which Mr Dorsch responded "How fucking ridiculous. This is not how things should be done". It was Mr Montgomery's evidence that, after he called Mr Dorsch's behaviour out, Mr Dorsch continued to say "fuck" multiple times and words to the effect "if I say something. I expect it to be done".
185 Mr Dorsch's account of the conversation in August 2021 was that he was bringing to Mr Montgomery's attention that he was not working consistently through an open order report and that Mr Montgomery was not accepting of his feedback, that he challenged Mr Montgomery's belief that he was on top of it and that Mr Montgomery stated that he did not appreciate being talked down to. I note that Mr Montgomery accepted that certain details of the conversation were as Mr Dorsch had described. Further, I am of the view that, given Mr Montgomery does not set out what Mr Dorsch had said that gave rise to his perception of him being rude, this means that little can be made by HEAD Oceania of this conversation in August 2021.
186 However, for the reasons set out above, and as follows, I prefer Mr Montgomery's version of the conversation in November 2021. Mr Dorsch disputed this conversation. Mr Dorsch suggested that the conversation did not involve him asking about purpose order processes nor that Mr Montgomery had said that he was not able to answer his questions because he was not qualified to do so. When Mr Dorsch's version was put to Mr Montgomery he maintained his own account and said, as part of his cross-examination in this respect "[t]hat would be a PG version". I accept his evidence. Further, his version is consistent with his contemporaneous record of what occurred.
187 Mr Dorsch accepted that he was yelling when he spoke to Mr Montgomery, but says it was because he was in his car, on speaker phone and that he told Mr Montgomery this as part of the conversation. Mr Montgomery denied that he told him this. For the reasons set out above, given that Mr Montgomery bore no ill-will towards Mr Dorsch, it is my view that, if Mr Dorsch had explained to Mr Montgomery why he was yelling, he would have taken that on board. I do not accept that Mr Dorsch in this respect is a reliable witness at all.
188 It was Mr Montgomery's evidence that, throughout the conversation, Mr Dorsch spoke to him in a raised voice, which made him feel uncomfortable. I accept this evidence because of what happened next. Mr Montgomery went and spoke to Ms Fookes and later, at her suggestion, sent her an email regarding what had transpired. In that email, he stated:
I did not appreciate the way I was spoken to today. I told Matthias I didn't appreciate the swearing and tried to explain that I wasn't able to answer his questions and was not qualified to answer Purchase Order Processes and logic on behalf of Matt the winter sport rep and Jess from Logistics. Despite this Matthias continued to speak at me in an aggressive manner to which I gave no response.
189 I find that the conversation transpired in the way that Mr Montgomery recalled that it did. Mr Montgomery was contacted by Mr Skrobanek, on 2 December 2021, in relation to this complaint. Mr Montgomery had asked that it not be provided to Mr Skrobanek, and his response affirms my view of him. Mr Montgomery explains in the email that he did not intend to file a formal complaint about Mr Dorsch but rather sent the email on the basis that it be filed on his record for this reason:
I did file a written (email) complaint about the way I was spoken to as I feel it is not an acceptable way to speak to staff.
However this was meant to be for my record so would have examples of such behaviour. In the past if I have confronted Matthias about behaviour issues I've been told what I'm saying is not true and to provide examples.
190 Mr Bramich gave evidence regarding Mr Dorsch's treatment of him and others, both of him being abused by Mr Dorsch, and witnessing Mr Dorsch abuse others. By way of example, Mr Dorsch said to him "you clearly don't understand how to do your fucking job", but Mr Bramich also said there would be screaming matches between them and, where there was an altercation, Mr Dorsch would hit his hands or hand on the table, and would become very agitated. There was no direct challenge to this evidence. I reject Mr Dorsch's submission that Mr Bramich stated that Mr Dorsch did not direct swear words at him personally. This submission is contrary to the evidence as Mr Dorsch sought to deploy one answer in the transcript to a question where Counsel was clarifying what being sworn at meant. However, Mr Bramich did concede that numerous employees swore within the workplace, Mr Dorsch swore either at the situation or directly at him, as did he and that Mr Bramich did not confront him about his behaviour.
191 Mr Bramich gave unchallenged evidence about a meeting with Mr Dorsch and Ms Andersen, where he was her support person in mid-2021. The meeting arose with respect to invoices Ms Andersen had prepared and GST. Mr Bramich observed Mr Dorsch berating her with his hands in the air, yelling and hitting the table, and where Mr Dorsch was visibly shaking at the same time. This meeting was, on his recall, in mid-2021. I find that it occurred as he described.
192 He also referred to an occasion where Ms Hawes was distressed by reason of unsuccessful IVF treatments, that when she was asked by Mr Dorsch what was wrong with her, and she explained it to him, he told her to "just get over it, there's nothing you can do". This, according to Mr Bramich, made Ms Hawes very upset. Again his evidence was unchallenged and may be accepted.
193 He also recalled an occasion where there had been an issue in the warehouse with respect to a stocktake that he was undertaking, where, by reason of Mr Dorsch being visibly upset (hitting the table, swearing and yelling), Mr Bramich had sent the warehouse manager home. Again, his evidence as to Mr Dorsch hitting the table, swearing and yelling was not challenged and may be accepted.
194 It was Mr Bramich's evidence that part of his reason for considering alternative employment in late-2021 was because he was "sick of the culture" at HEAD Oceania and the "general way" he was being treated by Mr Dorsch. In relation to the culture, he described there being "extreme culture clashes" between the directors, where the parties had to pick sides. This was by reason of the directors being responsible for different brands, whereas employees such as himself were required to work across different brands, and there was, as a consequence, constant pressure to perform work for one director over another.
195 In addition, Mr Bramich's evidence, under cross-examination, as to what it was like when Mr Dorsch came to the office was as follows:
Did you discuss the applicant's conduct with Mr Davies between June 2021 and December 2021? … Yes
…
And what did you tell Mr Davies? …I recall Mr Davies saying that he observed the staff within the office putting their heads down and acting like dogs that had been kicked too many times, what's the deal? And I said, "That's what it's like when Mattias (sic) turns up to the office".
196 Whilst Mr Dorsch did not give any evidence responsive to Mr Bramich's evidence, Mr Dorsch disputed the accounts made by Ms Hawes and Ms Andersen regarding conversations he was privy to.
197 Consistent with the evidence of other employees, Ms Hawes recounted instances where Mr Dorsch had sworn in her presence. She recalled overhearing him swearing on the phone during a telephone call with Mr Butler about the state of items in a trailer, he thereafter yelled at others at the OZTek Advanced Dive Conference during the day, which Mr Dorsch did not dispute in his evidence. It was Mr Butler's evidence that, during the conversation, Mr Dorsch said "you have fucked this up!" and that Mr Dorsch did not greet him when he called but immediately said this. Mr Dorsch's evidence was that he did not say "you have fucked this up!" but rather "[t]he mannequins and some of the displays are really fucked up because of not being secured and correctly loaded". Mr Butler said that he apologised to Mr Dorsch "as an attempt to de-escalate the conversation, because [he] could sense by [Mr Dorsch's] raised voice, swearing and tone in which he was speaking to me that he was angry with me. My apology made no difference, because [Mr Dorsch] continued yelling at me and then hung up the phone without saying goodbye". Ms Hawes recalled, based on what she heard Mr Dorsch say, that the conversation was "incredibly aggressive and intimidating and that it included many profanities that were directed at whoever was on the other end of the phone". It is my view that the evidence of Mr Butler is to be preferred over that of Mr Dorsch. Consistent with my other observations, and as suggested by Mr Montgomery, Mr Dorsch had a tendency to recall events in a sanitised form (and in a more favourable way to himself) than as recalled by the employees. Further, this is consistent with what Ms Hawes had observed about his continued state of agitation and conduct towards others after the call.
198 Also consistent with others, she described the effect of his behaviour on her. She recalled retreating to the car to get away from him and noticing that her "heart was racing and [she] was shaking".
199 Ms Hawes also recalled Mr Dorsch say to Ms Andersen "are you fucking stupid, Karen?" and strike his fist on the desk while speaking to Ms Andersen. Whilst Mr Dorsch denied that evidence, I am of the view that Ms Hawes' evidence should be accepted. The evidence reveals a pattern of behaviour by Mr Dorsch to which his response was a bald denial. I have no reason to disbelieve Ms Hawes, it was evident she bore no animus towards Mr Dorsch and was sympathetic to certain of his circumstances.
200 In addition, like others, Ms Hawes recalled a conversation with Mr Dorsch where she had made a mistake in a marketing document. She deposed to the conversation transpiring in the following way:
28. In or around December 2017, the Applicant informed me there was a mistake in one of the documents I reviewed, and we had a conversation in his office that included words to the following effect:
The Applicant: There's a mistake in this! Penny, you've made us look like idiots, this is not good enough. Get your head on the job!
Me: Matthias, I don't think reviewing contracts is actually my job.
The Applicant: It is your job. You get to design the paperwork!
29. The Applicant banged his fist on his desk as he was speaking to me during our conversation which made me feel very uncomfortable and threatened. After the conversation, I went back to my desk and tried to continue reviewing the contracts, however I became upset and began crying. At this point, the Applicant asked me to come back into his office and we had a further conversation that included words to the following effect:
The Applicant: You're getting upset over nothing. Why are you upset? You're being stupid. It's extremely unprofessional.
Me: Well, I think it's unprofessional when you yell at people in our office and over the phone and bang your fist on the desk.
The Applicant: You clearly have an attitude problem penny.
Me: Ok Matthias. You're my boss. I'll take a look at my attitude.
30. At the time of this conversation, I was hoping to receive a yearly bonus in approximately two weeks' time. I told the Applicant I would 'take a look at my attitude' as a means of ending our conversation and because I was worried the Applicant would use our conversation as a reason to refuse to pay me a bonus. Mr Dorsch took no issue with second part of the conversation in paragraph 29. In any event, for the reasons already given, I prefer Ms Hawes' evidence to any denial of Mr Dorsch.
201 Ms Hawes recounted a conversation with Mr Dorsch as occurring between October 2018 and February 2019, where Mr Dorsch had returned to the office at Yatala after a flight from Europe. Ms Hawes had found out that an in-vitro fertilisation procedure had been unsuccessful. During the conversation, she called Mr Dorsch saying "I don't really know why you're upset. I've just gotten off a 12-hour flight and had to listen to a brat screaming the whole time. Don't know why you'd want to have kids!". Mr Bramich was present during the conversation and recalled Mr Dorsch saying "just get over it, there is nothing you can do". Mr Butler's recollection was very similar to that of Ms Hawes. Mr Dorsch denied saying what Mr Hawes and Mr Bramich recall him saying but rather suggested an entirely different conversation in which he said nothing at all about Ms Hawes' circumstances but rather spoke about crying babies on the flight. Accordingly, three parties to the conversation recall (albeit differently) Mr Dorsch speaking about Ms Hawes' predicament. It is my view that Ms Hawes' and Mr Butler's recollection should be preferred.
202 Ms Hawes' evidence as to her reasons for resigning are telling. They describe her view as to the acute effect Mr Dorsch's conduct had on her. Ms Hawes deposed to the following:
39. In February 2019, I had a conversation with Mr Bramich in the office. At the time of our conversation, the Applicant was still in Germany. The Applicant had not responded to my repeated requests for his input and approval for the OZTek paperwork and by this point, I had become incredibly distressed. I worried I would be reprimanded by the Applicant if the paperwork was not lodged in time and the Respondent was not permitted to exhibit a stand. I was in a state of panic. Mr Bramich and I had a conversation that included words to the following effect:
Me: I don't feel right Leigh. I actually feel like I'm dying. I'm scared. I can't believe how anxious I've been feeling in my job lately. I can't take this anymore.
Mr Bramich: Seriously Penny, nothing is worth feeling like that over. Go to your computer and quit right now. This isn't worth it.
40. On the day of my conversation with Mr Bramich, I sent an email to the Applicant notifying him of my resignation. I no longer hold a copy of that email.
41. I chose to resign because I could not continue working for the Applicant any longer. I did not have another job to go to. At the time of my resignation, my partner's position had recently been made redundant and I was providing financial support to my mother who was living with me.
203 It was Ms Hawes' evidence that she did not tell Mr Dorsch the real reason for her resignation. Ms Hawes' emailed Mr Michl on 11 April 2019, to inform him of the circumstances, which she described as including: "in a day it is nothing for Matthias to yell at, completely berate and scold the people here as though they were 5 years old … He rules our workplace with intimidation, bullying and belittlement".
204 Similarly, Mr Butler gave evidence of specific occasions where Mr Dorsch shouted at him and swore including the incident involving the trailer, which is dealt with above. I accept Mr Butler's evidence that on this occasion Mr Dorsch swore and yelled at him and also of what he observed Mr Dorsch say to Ms Hawes regarding the failure of an IVF procedure.
205 The evidence revealed friction as between Mr Dorsch and Mr Butler regarding Mr Butler's timeliness in completing tasks that were asked of him and disputes between them as to discount structures for clients. Mr Butler deposed to a conversation with Mr Dorsch in early June 2021 in which Mr Dorsch said the following:
72. I eventually answered the Applicant's sixth phone call to me that day, and we had a conversation that included words to the following effect:
The Applicant: Why the fuck aren't you picking up your phone?
Me: Because I'm on leave!
The Applicant: You should be checking your fucking emails and checking in with the office for any phone messages. You should be finding out if there's anything urgent you need to fucking deal with!
Me: Matthias, I've been working with you for about 7 years now. Never once have I been required to check emails or check in with the office when I'm on leave.
206 It was Mr Dorsch's evidence that as soon as Mr Butler indicated to him that he was on annual leave, he apologised for the call and said he had forgotten he was on leave. I am inclined to accept Mr Butler's evidence over Mr Dorsch's evidence. It appeared that Mr Dorsch did not have the capacity to control his anger, had little insight into his behaviour and was an unreliable historian. I have no reason to disbelieve Mr Butler in this regard. Furthermore, a short time afterwards, in July 2021, Mr Butler called Mr Davies and informed him of the effect Mr Dorsch was having on his health and his relationships. He referred Mr Dorsch being aggressive on the phone.
207 A short time later, in late August 2021, Mr Butler again recalled Mr Dorsch speaking to him on the phone about the content of Mr Butler's voicemail message to which he said it was "fucked" and "unprofessional". Mr Dorsch again denied that he swore at Mr Butler. Mr Butler recalled that he pulled over to the side of the road and took the call off speakerphone because his wife was in the car and he did not want her to hear the swearing. I find that the conversation was as Mr Butler described.
208 It is without dispute that Mr Butler thereafter resigned. It was his evidence that he resigned because of Mr Dorsch's conduct towards him. Mr Butler recalled that when he informed Mr Dorsch that he was resigning, Mr Dorsch replied "Well, you've fucked this company. You have fucked this company" and "you have fucked our summer season and you have absolutely fucked this company". Mr Dorsch did not dispute in his evidence that he had said this. I find that this conversation occurred in the manner Mr Butler alleged.
209 To the extent that Mr Dorsch sought to dispute the credibility of Mr Butler, I reject that submission. Mr Dorsch was ultimately the Sales Manager and needed sales to achieve their highest revenues. Mr Butler was responsible for the largest territory by way of, as I understand it, revenue, and was under scrutiny from Mr Dorsch. It was my observation that Mr Butler initially did not challenge Mr Dorsch's behaviour, being new in the business, but increasingly over time, did. He tried to work around Mr Dorsch by establishing clients and otherwise working around him, but there definitely were clashes between them based on differences of opinion as to the terms upon which clients were engaged. It is not necessary for me to rely on the aspects of Mr Butler's evidence relating to what he perceived to be inappropriate behaviour by Mr Dorsch towards clients. In the absence of evidence from those client witnesses, it was difficult for Mr Dorsch to test that evidence and I ultimately do not think it is necessary to make any decision with respect to them. What I will accept of Mr Butler's evidence is that, consistent with the evidence of the other employees, Mr Dorsch had high standards and found a number of the employees within HEAD Oceania's business who did not perform to the level that he required and that, on occasion, his response to that, out of frustration or otherwise, was to yell and swear at them.
210 It was Ms Andersen's evidence that Mr Dorsch would on occasion yell and swear at her, as well as saying that she was "stupid" and "fucking stupid" (as was Ms Hawes' recall referred to above). Again, Mr Dorsch denied this evidence. However, it was Ms Borden's evidence that in or around early 2018, she observed Mr Dorsch approach Ms Andersen's desk, stand over her desk and say to her, "How can you be so stupid? How do you not know? … Why are you so stupid?". Ms Borden observed that Ms Andersen had tears in her eyes when Mr Dorsch spoke to her. In addition, Ms Hawes gave evidence as to recalling Mr Dorsch asking Ms Andersen if she was "fucking stupid". Again, Mr Dorsch denied this evidence. I do not accept his denial and I accept the evidence of Ms Andersen, Ms Hawes and Ms Borden.
211 It was Ms Borden's evidence that, by observing Mr Dorsch criticise, raise his voice, and swear at employees, it led to her being uncomfortable and anxious he would raise his voice at, swear at, insult or criticise someone around her or herself. She described felling anxious when his car pulled up outside the office, which echoes the description of Mr Davies and Mr Bramich as to the effect Mr Dorsch's conduct had on the workplace. I accept her evidence.
212 Ms Andersen recalled receiving a phone call from Mr Dorsch on 27 July 2021 seeking information regarding Adreno bonuses. The following day Ms Andersen was summoned by Mr Dorsch to attend the board room, in which he said to her that she was so stupid, he could not believe what had happened the previous day and that she did not know what she was doing whilst banging his fist on the table and yelling at her. Mr Dorsch led no evidence disputing that this occurred. Despite this, Ms Andersen was the subject of cross-examination in this regard and it was suggested to her that she had not recorded anything in her diary notes regarding what had happened in this meeting because nothing remarkable had occurred. Ms Andersen disagreed and gave an entirely plausible explanation, namely that she was very emotional at the time and her notes were not written with the intention of showing anyone but for her to express her feelings. I accept Ms Andersen's evidence that Mr Dorsch did say the things she recalls him saying and yelled and banged his fist on the table. Furthermore, her evidence was corroborated, in part, by Mr Bramich's evidence in which he recalled Mr Dorsch berating her with his hands in the air, yelling and hitting the table.