s.394 - Application for unfair dismissal remedy

• [1] Mr Lewis Glover ("the Applicant") has applied to the Fair Work Commission ("the Commission") for a remedy, alleging that he was unfairly dismissed from his employment with Mater Misericordiae Ltd ("Mater" or "the Respondent").

• [2] For the reasons set out below I have decided to dismiss the application.

• [3] The following facts were uncontested between the parties.

• [4] Mr Glover had worked for Mater since 25 February 2022. He was employed as a Sleep Technician.

• [5] Mr Glover was given notice of his dismissal on 24 June 2024, in writing. His dismissal took effect on the same date.

• [6] Mr Glover filed this application on 15 July 2024.

• [7] This application was made under section 394 of the Fair Work Act 2009 (Cth) ("the Fair Work Act"), and alleges that the Applicant was unfairly dismissed. In unfair dismissal cases the two main questions are:[1]

• • Was the Applicant "protected from unfair dismissal" at the time their employment ended?[2]

• • Was the Applicant unfairly dismissed?[3]

• [8] These questions are considered in that order. If the Commission is satisfied that the answer to both is yes, then it can consider whether to order a remedy for the unfair dismissal.

• [9] There are various conditions the Applicant has to meet to be protected from unfair dismissal. There are also various issues to consider in deciding whether someone has been unfairly dismissed.

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

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

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

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

• [11] Section 385 of the Fair Work Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

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

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

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

• [12] The application was filed on 15 July 2024. The employer response was filed on 23 August 2024. The parties did not resolve their dispute by conciliation, and so this application is now being determined.

• [13] If there are contested facts the Commission has to hold a conference or hearing when determining the application.[4] By Directions issued on 5 November 2024, I directed that the parties could provide their views, if any, as to whether this application should be determined in what is referred to as a "determinative conference," or at a hearing, in their outlines of submissions. Neither party took this opportunity, but I heard from them in this regard at a mention held on 26 November 2024. I considered the parties' views, and whether a hearing would be the most effective and efficient way to resolve the matter. After doing so I decided[5] to hold a hearing. That hearing was held on 5 and 6 December 2024.

• [14] At the hearing Mr Glover was represented, with permission, by his father, Mr Brian Glover. Mr Drew Cutler appeared for the Respondent with Mr Taylor McCubbin.

• [15] Mr Glover gave evidence for himself, as did his partner, herself a former employee of the Respondent. He also tendered a statement of his mother. Mr Glover tendered a large amount of documents. The Commission is not bound by the rules of evidence. Given the nature of the materials and the fact that Mr Glover was represented by his father, a lay person, my approach was to deal with his documents and his witness statements as a matter of the weight to be given to them, rather than dealing with issues of admissibility.

• [16] Ms Alison Ellis, Ms Grace Madden, Ms Natalie Erikson and Dr Lucy Burr gave evidence for the Respondent. The Respondent also tendered witness statements or affidavits of persons who the Applicant did not require for cross-examination, Mr Taylor McCubbin, Ms Tarren Burns-Hutchinson, and Dr Margaret Shaw.

• [17] The Respondent did not call Mr Paul Darcy, who it said had been the decision-maker. It explained Mr Darcy no longer worked for the Mater, no longer lived in the country, and declined to provide evidence voluntarily. I do not consider that Mr Darcy was a material witness to any contested facts and so it is not necessary for me to consider whether I should draw any adverse inference from the failure to call him as a witness.[6]

• [18] The Applicant filed an outline of submissions on 8 October 2024. The Respondent filed an outline of submissions on 5 November 2024.

• [19] The essence of the Applicant's submissions was that though he had engaged in the conduct alleged against him, it was justified or excused because:[7]
  • he had been under pressure because the Respondent had failed to provide for breaks during twelve hour shifts, replace essential equipment for treating patients, and deal with other hazards; and
  • he should be given leeway for raising WHS issues even if the way in which it was done would otherwise be considered appropriate, in circumstances where he was bringing to the Respondent's attention a breach of work health and safety procedures that endangered the wellbeing of employees.

• [20] Mr Glover also submitted that his opportunity to respond was impeded because he could not "effectively access the invite to attend a meeting to address the allegations, as his access to work emails had been restricted,"[8] and that he had disputed the prior disciplinary warnings he had received.[9] He also submitted the disciplinary process was "plainly biased."[10]

• [21] In support of his claim that the dismissal was harsh, Mr Glover also made submissions as to the impacts of the dismissal on him, and as to his personal circumstances.[11] He also submitted that dismissal was disproportionate to the conduct.[12]

• [22] Mr Glover also made submissions as to remedy.

• [23] Some parts of the Applicant's outline of submissions appeared to relate to a different case, including by the use of a different pronoun and referring to factual matters not dealt with in the evidence. Mr Glover was represented at the time his outline was filed. I have disregarded any obviously erroneous parts of the outline.

• [24] The Respondent submitted it had a valid reason for the dismissal related to Mr Lewis' conduct. The relevant conduct was said to be:[13]

• engaging in conduct that was inconsistent with the Mater's Code of Conduct Policy by inserting into technical notes for a patient's sleep study disrespectful and unprofessional comments;

• engaging in conduct that was inconsistent with the Mater's Code of Conduct Policy by inserting into technical notes for a patient's sleep study ... unprofessional comments that referenced a confidential HR process; and

• engaging in unprofessional and disrespectful conduct in an email to Natalie Eriksson.

• [25] It also relied on the following disciplinary history in relation to Mr Glover:[14]

"(a) On 17 May 2023, the Applicant was warned verbally about disrespectful and inappropriate comments where he had labelled nurse/s as "a primate with a presumed ability to call a code if something goes wrong".

(b) On 13 June 2023, the Applicant was verbally warned in relation to disrespectful and unprofessional behaviour concerning text messages he had sent to Natalie Erikson.

(c) On 14 September 2023, the Applicant was formally warned in relation to:

i. A podiatry procedure he had performed on a fellow colleague during his employed time.

ii. Engaging in threatening behaviour where the Applicant created a text file on a shared computer titled "Touch this and Die".

(d) On 23 April 2024, the Applicant was formally warned in relation to unprofessional and disrespectful conduct displayed in text message conversations with Grace Madden."

• [26] The Respondent also submitted these, and the warning of 24 January 2024, were warnings about performance.[15]

• [27] It submitted Mr Glover had been notified of the reason for the dismissal, and had been given an opportunity to respond by way of the show cause notice. It submitted he had responded to the show cause notice on 28 May 2024.[16]

• [28] The Respondent referred to the repeated nature of the misconduct, the matters it had considered in mitigation when Mr Glover had raised them, and Mr Glover's failure to raise with it matters he now relied upon in mitigation.[17] It also made submissions as to remedy,[18] and as to why it had not called Mr Darcy, referred to above.[19]

• [29] The parties made their closing submissions in writing. Mr Glover filed his closing submissions on 16 December, along with a document showing the metadata for photographs already in evidence. Mater filed its closing submissions on 20 December 2024. Mr Glover filed submissions in reply on 6 January 2025.

• [30] I have considered all of the evidence and submissions and have referred to them as necessary in this decision. Mr Glover sought to ventilate various concerns about work arrangements and equipment at the Mater. I have considered these as relevant to this application, which relates to Mr Glover's claim under the unfair dismissal provisions of the Fair Work Act, and which does not give rise to a general inquiry into events at the workplace. Where a party's closing submissions refer to factual matters not put into evidence before me in the hearing, I have not taken those factual matters into account.

• [31] The dismissal took effect on 24 June 2024 and Mr Glover filed his application on 15 July 2024. There is no doubt, and I find, that the application was made within the period required under subsection 394(2) of the Fair Work Act.

• [32] It was not in contest, and I find, that at the time of being dismissed Mr Glover met the requirements of section 382 of the Fair Work Act and was a person who is protected from unfair dismissal for the purposes of that section 382.

• [33] It is also not in contest, and I find, that Mr Glover was dismissed, the employer was not a small business employer, and the dismissal was not a case of genuine redundancy. So, the only issue that arises under section 385 of the Fair Work Act is whether Mr Glover's dismissal was harsh, unjust or unreasonable.

• [34] Section 387 of the Fair Work Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

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

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

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

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

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

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

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

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

• [35] These are mandatory criteria that should be taken into account and weighed, to the extent they are relevant to the factual circumstances before me.[20]

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

• [36] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination.[21] "The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination."[22]

• [37] As indicated above the Respondent relied on Mr Glover's disciplinary history, which Mr Glover's outline of submissions says he disputes. I will deal first with the disciplinary history, and then with the matters giving rise to the dismissal.

• [38] Ms Grace Madden, Scientific Director for Respiratory and Sleep at Mater, gave evidence that on 5 May 2023 she had sent a message to multiple staff via Microsoft Teams regarding meal breaks, and Mr Glover had subsequently responded, as follows:[23]

Hi Team, can you please let me know if you do NOT receive meal relief on your overnight shift. If you do not let me know, I can not amend your timecards to pay you for your time.

I know it is annoying but please continue to call the after hours manager and request break cover. I'm happy for you to cover each other's break at a time that is convenient for you, however please still get the nurses to come down to the lab for meal cover. If they come super early while you are still titrating or doing set ups, make them help you in any way they can. They should be coming every night regardless.

The nurses can't discern what's happening with the studies anyway. They're basically a primate with an assumed ability to call a code if something occurs, so we aren't operating solo in the eventuality that something happens.

Perhaps we can find an alternative primate with the ability to make a phone call in an emergency to cover the breaks.

• [39] Ms Madden and Ms Natalie Eriksson, Senior Sleep Scientist, provided a copy of an email of 10 May 2023 from a Nurse Practitioner to them, as well as to Dr Lucy Burr, Clinical Director of Respiratory and Sleep Medicine. Dr Burr says she also received a call from the Nurse Practitioner that day.[24]

• [40] The Nurse Practitioner's email forwarded a screenshot of the above exchange, which had in turn been received from a Clinical Nurse Consultant. The Nurse Practitioner stated in her email, inter alia, "The language in the response is derogatory and offensive - heightened by being displayed in a public forum."[25]

• [41] Ms Madden said she and Dr Burr met with Mr Glover on 17 May 2023 about the Teams message. provided a copy of the filenote of the meeting.[26] The filenote relevantly states:

During the meeting We have witnessed information of conduct you have displayed over the last month that would not be in line with Mater's Code of Conduct and Values that is expected of all Mater employees .

That he will be more careful and uses the term 'primate' lightly, even upon himself. The intention of the message was not to be harmful.

In order to assist Lewis to improve their conduct, I recommend the employee reads and understands the Mater's Code of Conduct and Values held within Mater's Behavioural Standards located on the Mater Policy Library and to be mindful and ensure behaviour is appropriate and in line with these expectations going forward.

We explained that Lewis is a senior tech and he leads by example, so the way he communicates must be considered.

If we continue to witness or receive feedback in relation to inappropriate behaviour displayed by Lewis, we may need to investigate this matter further and I may need to address this formally with you via a formal conduct or performance process.

Failure to comply with this direction may result in formal disciplinary action.

• We discussed nurse meal relief and the processes we have put in place to ensure this happens.

• We discussed work satisfaction and the opportunity to do a management course for PD

• We remind you that you can contact the EAP service at any time for support, on phone [number stated].

• [42] Ms Madden's evidence[27] was consistent with the content of that filenote, as was Dr Burr's.[28]

• [43] On 8 June 2023 Mr Glover apparently accidentally sent to Ms Eriksson the following by text message:[29]

I couldn't discern whether their inability to replace a freaking battery while l was away was intentional or incompetence. It's not an inspiring position to be in. Having an idiot more concerned about her impression than in patient care is incredibly tiresome, particularly when she requires constant attention to feel validated. She did a piss poor job instructing the new person as well. My faith in humanity dropped again through that shift, though if I had considered it beforehand it was anticipatable. I would love to know what metric is used to hire here.

• [44] Ms Eriksson responded by sending Mr Glover a screenshot of his message and asking, inter alia, if Mr Glover wanted to elaborate. Mr Glover responded with:[30]

Corey is apparently your senior staff, and there is a pattern emerging of her not doing her job, specific to the person she is working with, to the detriment of the patients and the work.

I alluded to the hiring choice out of frustration at the emerging pattern and the absence of any management of it. Rather than bring up ephemeral aspects of working with her. I'm fine working with a hostile person, it goes with the territory. I have massive issue with her behavior effecting patient care.

I am 100% happy to explore every aspect of anything I write, in person, to any level desired. If you explain exactly what sending me my messages back to me in that format was supposed to signify, I could possibly supply the desired response.

I didn't know how to respond, obviously the message wasn't meant for me and wanted to bring that to your attention. Thank you for your follow up message, as I truly did want to know if you wanted to discuss anything further, all forms of feedback are viewed in ways to improve

• [46] Ms Eriksson followed up with a request to discuss this face to face. Mr Glover did not respond but dropped in for an unscheduled meeting on 13 June.

• [47] Ms Madden says that at that time she and Ms Eriksson met with Mr Glover. She says that during this meeting, she requested that Lewis provide a written statement regarding his concerns for the employee named in the text message. She says that she also reminded Mr Glover that, as a senior technician, it is his responsibility to intervene if he observes someone struggling or not meeting the required training standards. Additionally, she says she informed Mr Glover that it was inappropriate to discuss these matters with other staff members instead of raising them with management, as such behaviour could contribute to a negative work environment. She provided a filenote of this discussion.[31] The filenote relevantly states:

• Asked Lewis to please elaborate on some of the issues he has expressed that compromised patient care. NOTE the below are notes made by GM, Lewis to provide formal statement on events

o Lewis said on the night of 6th June, LG left his workstation to check on Renae who was in paeds

o Lewis was away for approx. 20mins, and during this time the battery had died

o No one replaced the battery for him. Patient care could have been compromised due to this person having an MSLT and sleep time was in question.

o Lewis said Corey will not take on any of his feedback and gets stroppy when he delivers it

o He said she is lazy and let the new person do all her work

o It is his opinion that Cory has gotten worse since she has become 'senior'. Lewis is referring to her performing HP3 duties, however Nat and Grace mentioned she is not senior, she is just performing a different scope at HP3. She is still junior and still learning.

o Lewis said he would not feel comfortable addressing this with Corey, which may not be received well despite his intentions. Lewis is asked to write down his observations we Nat or Grace can address this.

• Lewis said this was a 'pattern of behaviour' and wanted to know what we are doing about this to address his concerns.

o GM and NE always address each situation as they arise. We informed Lewis that this is the first time he has raised the specifics of this situation to us. We will touch base with CoA in the next shift. Lewis must provide a written statement so GM and NE can address this first.

o Asked Lewis what he thinks could be done to help this situation. LG responded that they don't get rostered on together. He had no other insights to add at this stage.

o Asked Lewis what he could do in this situation next time. LG gave no insights. He sates Corey GM and NE suggested addressing it at the time with Corey in a non confrontational manner and with curiosity. We also asked Lewis to provide this feedback to us so we can address it in a more formal manner.

• Talked about being a senior in the techs and how if he sees someone missing the mark or struggling with training, that he should step in

• Talked about the inappropriateness of having this conversation with another staff member and not management, contributing to a 'toxic' workplace

• [48] Ms Eriksson gave evidence to the same effect and also provided a copy of the same filenote.[32]

• [49] Ms Madden gave evidence that she and Ms Eriksson received a complaint about Mr Glover on 28 June 2023, by telephone, and that a mediation and also a show cause process ensued.[33] Ms Eriksson gave evidence to similar effect and said she placed the call on speaker so that both she and Ms Madden could speak with the complainant.[34]

• [50] On 24 August 2023 Ms Madden provided Mr Glover with a letter inviting him to respond to the following allegations against him:[35]

Allegation 1: It is alleged, that on 14 June 2023 you performed a podiatry procedure on a Mater employee within the sleep unit which as a sleep technician is considered to be outside of your positions scope.

Allegation 2: It is alleged, that between the dates of 04 July 2023 and 01 August 2023, you left the sleep unit on multiple occasions without reason.

Allegation 3: It is alleged that on 08 August 2023, you exhibited threatening behaviour.

Allegation 4: It is alleged, that on 10 August 2023, you engaged in unprofessional and disrespectful conduct when sending a text message to Natalie Eriksson, in relation to your colleagues.

• [51] The third allegation related to creating a folder in a computer directory called "touch this and die." The fourth related to texting Ms Eriksson and referring to a colleague as demonstrating the Dunning Kruger effect, and referring to her as having NPD, which Dr Burr took to mean Narcissistic Personality Disorder.

• [52] Ms Madden said that Mr Glover provided a written response to the allegations on 29 August 2023, and she provided a copy as an annexure to her statement in these proceedings.[36]

• As to allegation one, Mr Glover apologised for treating a colleague in the wrong place, recognised he had not shown good judgment, and said he would not repeat his error.

• Mr Glover contested Allegation 2, providing information in response.

• As to allegation 3, he accepted that he had created a file with that title, and said it was an in-joke with Ms Thiele, who was a colleague at the time. A previous iteration had been deleted by someone. He said he had not put the file onto the desktop, and someone else must have moved it there.

• Mr Glover responded to allegation 4 by further insulting the staff member that had been mentioned, saying:

"The staff member that was mentioned, [name stated], demonstrates the Dunning Kruger effect on a regular basis and should not be allowed to supervise new staff as it creates a sort of butterfly effect, causing exponentially growing errors and subsequent amounts of effort to correct. ..."

• Mr Glover subsequently stated, in that same response:

"... I would like to divulge that I have had discussions with Grace Madden recently regarding some of the issues touched upon in these allegations. I am not a neurotypical person (ASD, ADHD) and have recently built a professional team to address some of the social difficulties that I have encountered. Grace has enrolled me into a Mater Private Hospital run leadership course to help me understand the nuances of many of the social aspects of work that I have been having difficulty understanding as I don't have a sensible frame of reference from which to understand them. My hope is that I can continue to work for Mater and gain the skills I need to better navigate the challenges of working for an institution that promotes dignity and excellence as these are values that are important to me."

• [53] By letter dated 14 September 2023, Ms Madden stated that allegations one, three, and four had been found to be substantiated, while allegation two had not, and gave Mr Glover a formal warning.[37] The letter also indicated Ms Madden had enrolled Mr Glover in the following training:
  • Mater Education's Leadership Round Table Program; and
  • Speaking with Good Judgement - Refresher

• [54] The Respondent's outline of submissions refers to a further formal warning, in relation to unprofessional and disrespectful conduct, of 23 April 2024. 23 April 2024 was the date of a letter inviting a response to allegations. Having regard to the evidence I consider it likely that the Respondent was here referring to a formal warning letter of 24 January 2024, which is also referred to in the letter of 23 April 2024.

• [55] Dr Burr said that in early December 2023 Ms Madden informed her of an inappropriate and disrespectful text message. A show cause process ensued.[38] The allegation the subject of the process was set out in a letter from Dr Burr to Mr Glover of 12 December 2023 as follows:

It is alleged, that on 28 November 2023, you engaged in unprofessional and disrespectful conduct when sending a teams message to Grace Madden, Scientific Director Respiratory and Sleep. (attached).

• On 28 November 2023, a teams message was sent to Grace Madden at 04:50 am stating that you were not available for the rostered shifts during the week ending 8 December 2023.'

• You stated within the teams message "Your assertion that it's SOP to contact next of kin doesn't hold water when you unilaterally "book" me in for a shift, and then ring my next of kin when I don't turn up for a shift I don't know about, in a time period I don't work in."

• In the teams message you make a comment that you were unaware of your shift on 13 November 2023. The roster, which included your shift on 13 November 2023 was uploaded to Kronos on 18 October 2023 and last edit occurred for that shift on 23 October 2023.

• You ended the teams message with "You really need to stop the campaign of harassment".

• This type of conversation not only demonstrates a lack of professionalism and respect but also indicates a disregard for fostering a collaborative and respectful work environment.

• Mater is committed to ensuring the safety and wellbeing of all staff and will take all reasonable steps to uphold that commitment.

• [56] In that process Mr Glover provided a written response to the further allegation against him,[39] as follows:

Firstly.I would like to draw your attention to several procedural errors that occur with the current proceedings and previous proceedings: I have never been informed prior to any of the many complaints made against me of what the complaint was prior to an informal or formal meeting regarding the complaints. Natural justice would be fulfilled if I had any idea of what I am about to walk into and therefore be able to judge for myself whether I should bring a support person. This has occurred in every accusation that has been levelled towards me during my time at Mater Private Hospital.

Associated with this issue, I have frequently been informed on the spot that I would be required to attend an informal meeting with Grace Madden and another entity. This denies me the opportunity to prepare a sensible defence against whatever attack is coming down the line. In fact this has occurred every time I have been required to attend the hospital outside of my overnight working hours for several months.

Point 1: I can't access my mater outlook account from home, so I am unable to sensibly address this first point brought up. I can't construct a timeline based on the communication, therefore I can't adequately address this point. Grace should have sent me an sms or tried to contact me to confirm I was available for the shift she unilaterally rostered me on outside of my regular work hours to confirm I was available for the proposed shift outside of my regular shifts. This is very basic communication protocol.

Point 2: Neither Grace, nor any member of staff discussed whether I was available for the shift that I was booked in for outside of my regular night shifts. I check the timetable each day to discern whether I am rostered on for a night shift on the night in question. These are the only shifts I regularly perform. It should be clear from the many timetables, and over a year of work, that I work night shifts and that I am not necessarily available outside of that time. It requires very little effort to send an sms to confirm I am available for a shift outside of my normal hours of employment. Grace booked me in for a shift without communicating with me, without knowing whether I was available for the shift and then contacted my elderly mother when I didn't attend a shift that I was uninformed that I was required to attend. I don't work during the daytime at Mater Private Hospital. I have always had discussions with my former line manager if I was rostered on for such shifts. It is difficult to imagine, given the past several months of Grace acting out, and also given her ability to discern whether staff members appear during the day, outside of their regular work hours, the she was unaware that I worked night shifts solely and would require communication, beyond posting it on a timetable that she has no ability to know whether I received the "communication", that I would know she has rostered me on for a shift during the day and that I would therefore have the knowledge to know I need to address her flawed judgement.

I am neurotypical, I have ASD and ADHD. It requires more that a rudimentary understanding of management to be capable of managing neurotypical and neurotypical staff members. However it is basic curtosy to make sure that a staff member is available and aware of shifts outside of their regular working hours.

Point 3: Posting a roster and expecting everyone to be aware of the shifts outside of their normal working hours is not sensible. It is assuming that all staff members are neurotypical and therefore process the information identically. Well prior to this incident I informed Grace that I had ADHD and ASD. If she didn't understand the terms and was unable to google the acronyms, then she had ample opportunity to discuss it with me, or ask someone else what they meant. This is demonstrative of Graces limited ability in managing a diverse group of professionals.

Point 4: Grace has been orchestrating exactly what I stated in this message. She klnows it. I know it. It isn't a stretch to think that the hospital is aware via various mechanisms that she has been undertaking the actions as described. That I was required to attend this meeting, in the absence of natural justice (no information regarding the content of the meeting) indicates that her actions may be sponsored by Mater Private Hospital. I stand by my assertion that Grace has been orchestrating a champaign of harassment against me for several months and it needs to stop. By sending that message I was attempting to reason with Grace and have her cease her vendetta. As things stand, there is no indication that she will cease the harassment/campaign. In the absence of an indication that she has ceased. I have no option but to pursue legal remedy. Instead of pillorying me for alerting the hospital to Graces poor judgement, I would advise that someone in authority investigate her behaviour over the past 9 months and remedy it. My only option at this point is to pursue legal remedy.

Point 5: I attempted to convince Grace that her pattern of harassment and poor behaviour, that she needs to cease immediately, despite her temperament towards me and the situation, that her malignant behaviour as it is exposing her, and the hospital to scrutiny and financial culpability. I judge this to be the epitome of professionalism and integrity.

Point 6: suggesting that Mater is committed to the safety and Wellbeing of all staff and will take reasonable steps to uphold that commitment isn't a convincing statement in light of the several months of harassment that I have been subjected to.

I am currently discussing this and the myriad formal and informal interactions I have had with HR with legal professionals. In the absence of some indication that the current tragic tory has changed will address this and many previous interactions with HR and other entities within the hospital in the immediate future.

• [57] The show cause process culminated in another formal warning to Mr Glover, set out in a letter from Dr Burr of 24 January 2024.[40] That letter also dealt with various concerns Mr Glover raised in his letter, set out above, and indicated that Dr Burr had arranged for Mr Glover to be re-enrolled in the Speaking with Good Judgement training module. She provided the date and time for attendance at this module.

• [58] I accept that Mr Glover contested some but not all of the previous disciplinary history at the relevant times.

• [59] The disciplinary issue of 17 May 2023 related to a message under Mr Glover's hand in writing. It was clearly connected with his concerns about coverage during meal breaks. Nonetheless the message was self-evidently an instance of misconduct.

• [60] As to the meeting of 13 June 2023, I would observe that staff talk among themselves in workplaces, including about things causing them dissatisfaction or concern. I do not think the suggestion that appears at the conclusion of the filenote, that complaining to colleagues instead of management was, in and of itself, "inappropriate," is tenable. The discussion of 13 June 2023 appears best characterised as Mr Glover putting forward criticism, at the employer's invitation, and the employer's representatives providing performance coaching as to how to most effectively raise concerns.

• [61] The allegations substantiated on 14 September 2023 did relate to misconduct. Mr Glover did not contest the allegation that he performed a podiatry procedure on a Mater employee within the sleep unit which as a sleep technician was considered to be outside of his position's scope. He did contest allegation 2, and was successful in doing so. Allegation 3 is overstated. While Mr Glover admitted creating a folder called "touch this and die" - which from the screenshot he provided appears to have been punctuated as "ToUcH tHiS aNd DiE" - he contested any suggestion that it was left on the desktop and said it was within layers of sub-folders. Allegation 4 goes to communication that goes beyond an incident of poor performance and rises to the level of misconduct; Mr Glover does not merely offer adverse feedback robustly stated, but veers into gratuitously insulting the colleague concerned, to Ms Eriksson, by inexpertly diagnosing the colleague with a cognitive bias and a personality disorder.

• [62] As to the warning in January 2024, it appears that Mr Glover complained, in blunt terms, about being rostered on via a system he had not checked, about Mater telephoning his mother when he did not present for that rostered shift, about what he considered to be Ms Madden's campaign of harassment against him, and about his view that Mater did not accommodate his ASD and ADHD. I note in passing that these conditions have not been established on the evidence. Relevantly, for present purposes, Mr Glover vigorously contested Mater's view that this communication constituted misconduct. This issue may be better considered as another incident of Mr Glover's poor communication style rather than rising to the level of misconduct.

• [63] In summary it appears that the relevant disciplinary history included Mr Glover's public description of nurses as primates in May 2023, as well as his performance of a podiatry procedure, his insulting communication regarding a colleague, and to a lesser extent the naming of the "touch this and die" folder, prior to the warning of 14 September 2023.

• [64] From the foregoing it is clear that Mater had been attempting to deal with Mr Glover's conduct issues, and his communication issues, throughout 2023 and early 2024. Even where his poor communication merely demonstrated shortcomings, without rising to the level of misconduct, the employer's response would have put Mr Glover on notice that he needed to consider his approach to communicating in the workplace.

• [65] I will now turn to the conduct that gave rise to the dismissal.

• [66] On 15 April 2024 Dr Burr wrote to Mr Glover by email, inviting him to meet with her and Mr McCubbin on 7 April regarding concerns about his conduct. She also indicated the matters could be put in writing if he preferred given he was rostered to work night shifts.[41] Mr Glover did not attend the meeting. Dr Burr put the allegation into writing, and sent them to Mr Glover by email, with a copy to a private email address, on 23 April 2024[42] for his response. Mr Glover did not respond to that letter.[43]

• [67] On or around 15 May, Dr Burr considered the allegations in the absence of any response. She considered Mr Glover was liable for disciplinary action, and decided to invite him to show why his employment should not be terminated. She ultimately did so by way of a show cause notice dated 20 May. The show cause notice stated that since the previous letter, new matters had come to light. It added four more allegations. Mr Glover was also suspended from work, on pay.[44]

• [68] The show cause notice gave only a very short period for a response, to 22 May 2024. Mr Glover requested and was granted an extension, ultimately to 28 May 2024.[45] The text of the termination letter indicates this was the second of two extensions granted.[46] Mr Glover responded on 28 May, in writing.[47]

• [69] The matters the subject of the show cause notice were as follows.

• [70] Allegation one was about responding to a Teams message from Ms Eriksson, asking who had sent a particular message, with an image of a detective hat and pipe, and sending a further message accusing Ms Eriksson of rostering Ms Thiele on for a "ridiculous amount of paediatric set up shifts compared to anyone else," despite knowing that Renae has narcolepsy, and "gaslighting" Renae. It also related to Mr Glover criticising another colleague by referring to them as "inept" and accusing them of prioritising projecting competence over doing their job.

• [71] Allegation two was significantly more serious. It related to Mr Glover's technical comments on paediatric sleep studies while working night shift on 23 April 2024. The letter set out excerpts from Mr Glover's notes on three different sleep studies.

• [72] For the first study the excerpt from Mr Glover's notes had commenced with some comments about equipment, and then went on to say, "Someone working during the daytime can re-membrane and feel validated in their ability, sense of collegiality and contribution to the excellence that is the Mater pediatric sleep service."

• [73] For the second study the excerpt showed Mr Glover making comments about the equipment and going on to say "I have retrieved some pediatric sized oximeters from the respiratory secret, secret equipment hoard earlier, it begs the question, why in hell weren't the 2 pediatric oximeters that I recovered from there, that were there according to the associated since 21/3 at least, weren't they put into circulation, particularly given the now 5 posts in the issues log around fault oximeters? I would ask, however I expect I would shortly afterwards receive an invitation from HR for speaking without good judgement or acting unprofessionally, or whatever the new code is for not being completely useless and also silent about the absence of action in cases such as this. Perhaps not having appropriate equipment distributed is a loyalty test, are you interested in providing appropriate patient care or maintaining loyalty to management? I will run a poll amongst my colleagues in sleep and discover the answer to these important questions."

• [74] For the third sleep study, after making comments about the equipment, Mr Glover's technical notes went on to say, "Unfortunately, there are no wrap around sensors that typically remain attached and provide a better signal than the oximeters available, whoever orders equipment (The identity of whom is shrouded in mystery, as is the identity of who books the patients in. Can't have anyone actually taking responsibility, that would not be thinking with good judgement) does not listen to the staff responsible for doing the job, so only subpar equipment is ever ordered."

• [75] Allegation three related to the notes above, on the basis that it was a breach of his confidentiality obligations for Mr Glover to have referred to receiving "an invitation to HR for speaking without good judgement or acting unprofessionally..." given he had been told to keep previous show cause processes confidential.

• [76] Allegation four related to this email Mr Glover had sent to Ms Eriksson on 2 May 2024, in response to an email she had sent him some time previously regarding the employer's expectations about being notified when employees took personal leave:[48]

Allow me to express a sincere apology for being sick outside of the times that were outlined in the document attached. I also appreciate the linked fair work document, it added a sense of gravity to the email.

I have scheduled several hours of vigorous self-flaggellation this weekend that I will perform whilst using an AI reader to speak aloud the attached mater policy document. If repetition of the document in Morgan Freeman's voice is insufficient, the memory of the whip may get my feeble mind to commit it to memory and my wreched body to comply.

Please accept my metaphorical grovelling at your feet for forgiveness.

• [77] The fifth allegation, which was incorrectly numbered as allegation four, also related to technical notes, from Mr Glover's night shift of 16 May 2024, for two sleep studies. The first was:

Stage:/ am not sure: REM? the ECG interference is not making it easy to stage.

Someone should really train the night staff in pediatric scoring. though having inaccurate staging on overnight observations is hardly a compelling reason to train staff. Training takes time and therefore money. If one thinks with good judgement, it is far more reasonable to stack employees in an inverse meritocratic heirarchy and spend time weeding out the staff who can solve problems so the more incompetent staff can truly shine (a very dull light).

Sounds: nothing useful over microphone (there is significant data available via tech notes vs trace to justify getting a sound technician in to apropriately calibrate the microphone and speaker system if anyone is actually interested in accurate data. I strongly suspect that there is no desire for accurate sound data, if there was, then someone would have addressed the incongruency of these data points long ago]

• [79] In his show cause response Mr Glover did not deny any of the conduct underpinning those allegations, save that he did not respond at all to the second of the two allegations referred to in the show cause letter as "allegation four." Mr Glover accepted that he had sent the image, Teams messages, and emails to Ms Eriksson, and had written the technical notes attributed to him in allegation two. He set out various justifications and excuses in respect of each of the allegations. He also set out matters in mitigation to support his request not to be dismissed, including the impacts on him.[49] Mr Glover has not denied the conduct referred to in the show cause letter of 20 May 2024 in these proceedings, but again has sought to justify or excuse it.

• [80] I consider the matters relating to the technical notes to be the most serious. Dr Burr's letter pointed out that technical comments like all data are stored on the patient's official medical record in accordance with Mater's policy for data storage. She pointed out the information was visible to stakeholders including Mater public health records, private practitioners (Visiting Medical Officers and their staff), and auditors from the Australian Sleep Association and the National Association of Testing Authorities.[50] Under cross-examination Dr Burr indicated the technical notes as drafted could be distracting for clinicians reading them.

• [81] Patient records may also be available to patients or their parents under the Privacy Act 1988 (Cth).[51] It would self-evidently be distressing for a child or parent to read notes such as these in their patient record. Mr Glover argues that the likelihood of a patient accessing technical notes is slight.[52] But he does not dispute the proposition that the technical notes form part of the patient's medical record. He cannot know what records patients or their parents will request, and it will be the application of the privacy legislation that determines whether they will gain access. Mr Glover also refers to a decision of the now-President of this Commission in Starr v Department of Human Services [2016] FWC 1460, a matter in which the Respondent had established the Applicant's conduct had created a risk of reputational harm, but had not established actual harm. I accept that this consideration can be relevant. The decision in Starr can be distinguished, though, on the basis that unfair dismissal matters turn on their own facts and the balancing exercise will be different with different relevant considerations. In Starr the conduct involved general comments on social media about the clients of the agency concerned, not comments in technical notes about specific patients, that would form part of patient records, so the consideration of whether there was a valid reason for dismissal relating to conduct was about different facts. There were also differences in relation to other relevant considerations such as the person's disciplinary history and length of service.

• [82] In the circumstances, Mr Glover clearly engaged in misconduct by writing the technical notes excerpted above. I consider that the sarcastic and disrespectful communications to Ms Eriksson also constituted misconduct.

• [83] In his show cause response and in these proceedings Mr Glover sought to justify or excuse his misconduct on the grounds that he was raising complaints about faulty equipment which posed a health or safety risk to patients.[53] He adduced evidence about whether particular equipment was in working order and/or accessible, and whether there was sufficient communication about where it was being stored,[54] and devoted a substantial amount of his submissions to this issue.[55] As stated above he had submitted he should be given leeway for raising WHS issues even if the way in which it was done would otherwise be considered appropriate, in circumstances where he was bringing to the Respondent's attention a breach of work health and safety procedures that endangered the wellbeing of employees.

• [84] But the issue in this case is not the language or tone of Mr Glover's remarks, but the fact that they were made in technical notes for inclusion in paediatric patients' medical records. If he was dissatisfied with his supervisor or manager's response to his complaints, or the employee relations team's response, he could have sought to escalate the matter to the hospital's chief medical officer, executive director, CEO, or other senior role. As Mater is a company, he could have considered whether he had complaint options under the Corporations Act 2001 whistleblower protections. As Mater is a health service and hospital, he could have considered whether he had complaint options to an agency such as the Australian Health Practitioner Regulation Agency or the Office of the Health Ombudsman. He had various options that would have allowed him to ventilate his concerns without risking distress to child patients and their parents. Such other options would also have the benefit of likely being more effective than including sarcastic comments in technical notes. So, I do not accept that his misconduct was justified or excused on that basis.

• [85] Mr Glover also sought to argue that this and his previous misconduct was justified because of, inter alia, fatigue related to Mater's failure to provide sufficient coverage to allow technicians to take the meal breaks to which they were entitled. The parties led evidence about the extent to which Mr Glover had been able to take meal breaks,[56] and covered this issue in cross-examination. Also, Mr Glover devoted a substantial part of his closing submissions to demonstrating that the Mater had failed to ensure meal breaks could be covered, and therefore taken.[57] Mr Glover also sought to ventilate his concerns about whether the forms that he and others filled out, when nursing staff were not available to cover meal breaks, were collected and acted upon in a timely way or at all.[58] It is not necessary for me to decide whether Mr Glover was generally able to take meal breaks or not, or whether the employer was sufficiently attentive to forms that were filled out, because I do not accept that fatigue, or frustration about any alleged failure by Mater to sufficiently address fatigue in 2022 and 2023, justified either Mr Glover's conduct in 2024 taken as a whole, or the conduct of using technical notes to air complaints about safety in preference to other options.

• [86] More generally, Mr Glover said that he had become vocal about the meal breaks issue following a car accident of the morning of 23 February 2023, when driving home from an overnight shift. He said he had sustained injuries to his ribs and kidney, and suffers ongoing back pain.[59] He believes fatigue was a factor in his car accident.[60] In June 2022, a new practice had been established where people were to fill in forms if the nurses did not provide cover for their meal breaks.[61] Mr Glover put some of these forms into evidence. These forms show various comments Mr Glover was putting in writing about the meal breaks issue in 2022, including:[62]

"We have been shaving pets and bringing them to work to see if any have ability to perform rest pauses / meal break cover. So far we have had 2 shaved dogs, 4 cats (shaved) and a spider monkey escape the hospital... We spent some 9 hours trying to catch the spider monkey, it was too fast and seems to revel in throwing its own faeces at pursuers."

"Diminishing belief that Mater wants to empower people, whatever their health goals are, to positively engage in good health knowing they can depend on Mater to support them..."

"Equipment required: One human, you could train a chimpanzee I guess. A chimpanzee would be more entertaining than a human, unless the human has good jokes or does interpretive dance."

"Provide details of the problem/s arising as a consequence of the concern: Soul crushing, disappointment, excessive fatigue while driving home, rapidly rising sense of abandonment and futility in filling in this form every shift, which feels like more punishment.

Equipment required: 1 primate of any variety to allow 2 staff to actually have a meal break on a 12.5 hr shift."

"Equipment required: security guard and night stick. Reason: Threaten whomever is necessary to get someone to attend sleep unit for meal relief."

• [87] There are others and they seem to be co-signed with colleagues. There is no suggestion that there was any disciplinary action or performance management in connection with these forms, but they were directed to the workers' managers and supervisors, not to the nursing staff, stakeholders, or patients. As indicated above Mr Glover took issue with whether these forms were collected.

• [88] Mr Glover says that at some point after the car accident he had started speaking directly to nursing staff in charge of organising meal cover, and that they had attributed the failure to Ms Madden.[63] In his show cause response he had said it was shortly after he started speaking to these nurses Ms Madden had started speaking to him about his approach, informally and formally,[64] and in his witness statement Mr Glover says that it was not until after his car accident, while continuing to pursue the issue about the lack of meal break cover, that he began being invited to informal and formal human resources meetings.[65] He also complains of Ms Madden phoning his next of kin, his mother, when he did not attend a shift.[66] The argument he seeks to make is that the disciplinary action against him was a reprisal for his agitating about safety issues. The difficulty he faces in making such an argument is that his conduct viewed objectively warranted management and discipline as set out above. Mr Glover's dissatisfaction with Ms Madden's management approach also does not justify or excuse the conduct.

• [89] In his closing submissions Mr Glover argued the conduct set out in the show cause letter of 20 May did not warrant dismissal. For the reasons already stated I do not accept this submission. He argued that the issues with the equipment and the meal breaks led to a generalised frustration, such that even if the conduct did warrant dismissal, the frustration mitigated against that. In support of this submission Mr Glover cited two cases,[67] which, going by their citations, appear to be decisions of single Members of this Commission. Having searched for these cases I am not convinced they exist. In any event, for the reasons already stated I do not consider Mr Glover's frustration justified or excused his conduct.

• [90] In his response to the show cause Mr Glover again indicated he had ASD and ADHD, in the course of complaining about being expected to be trained in relation to communicating with judgment. The employer sought to deal with this in the termination letter.[68] In terms of my consideration of whether there was a valid reason for termination, it is sufficient to state that Mr Glover did not put before me any medical evidence to support his assertion that he had these conditions, or any evidence to show that if he had either or both of those conditions, that excused or explained his conduct.

• [91] There was some dispute between the parties as to the extent to which the employer had provided training to Mr Glover in relation to how to communicate. Whether or not Mr Glover had received such training it is obvious that Sleep Technicians should not engage in the conduct described above in relation to technical notes. It is not necessary to deal with this further.

• [92] The termination letter was dated 24 June 2024 and was issued under the hand of Mr Paul Darcy, the then Executive Director, Metro Health, for Mater. In his letter Mr Darcy relied on the formal warning of 13 September 2023, the formal warning of 24 January 2024, and some but not all of the matters the subject of the show cause letter of 17 May 2024.[69] Mr Glover was also notified of the decision to dismiss him in a meeting on 24 June 2024.[70]

• [93] In its letters to Mr Glover and in these proceedings the employer has relied on the contention that Mr Glover's conduct contravenes its Code of Conduct Policy,[71] to make the case that his actions amounted to misconduct. A Full Bench has said that "[a] failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. A substantial and wilful breach of a policy will often, if not usually, constitute a valid reason for dismissal."[72] However, in this case Mr Glover's actions clearly constituted misconduct in and of themselves without it being necessary to consider whether by engaging in the conduct he contravened any lawful and reasonable direction. So, it is not necessary for me to consider whether Mr Glover contravened the Code of Conduct Policy.

• [94] Having regard to the disciplinary history, Mr Glover's remarks to Ms Eriksson and is written remarks in the technical notes can be seen as part of a continuum of both poor performance as to communication, and misconduct that substantially related to communication. The incidents of misconduct regarding the patient records provided a valid reason for dismissal in and of themselves. In addition, Mr Glover's previous issues with communication, including the issues warranting prior disciplinary action, fortify the validity of the reason for dismissal.

• [95] Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to the Applicant's conduct.

Was the Applicant notified of the valid reason?

• [96] Proper consideration of s.387(b) requires a finding to be made as to whether the applicant "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[73]

• [97] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[74] and in explicit[75] and plain and clear terms.[76]

• [98] The employer wrote to Mr Glover in clear terms setting out, explicitly, what he was said to have done and why the employer considered it may constitute misconduct. The employer indicated that it was considering dismissing Mr Glover but that no determination had yet been made.[77]

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

• [99] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[78]

• [100] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[79] Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[80]

• [101] Mr Glover, in his show cause response, made some complaints about procedural fairness, including that the employer should have told him to check his email. In his witness statement he says he lost access to his work email account at "around the time of" the show cause notice.[81] It is clear from the face of his written response to the show cause notice that he had received the letter to which he was responding.[82] He obtained an extension to respond, and as indicated above he responded on 28 May 2024.[83]

• [102] Mr Glover was given an opportunity to respond prior to the decision to dismiss being made,[84] of which he availed himself.[85]

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

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

• [104] In this case the employer invited Mr Glover to bring a support person to the relevant meetings,[86] and rescheduled the last meeting to accommodate the union official's availability.[87]

• [105] In all the circumstances, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.

Was the Applicant warned about unsatisfactory performance before the dismissal?

• [106] As indicated above I consider some of the disciplinary history might be better characterised as unsatisfactory performance. However, the reason for dismissal was misconduct, not unsatisfactory performance. As the dismissal did not relate to unsatisfactory performance, this consideration does not arise, and does not weigh in support of or against a finding that the dismissal was harsh, unjust, or unreasonable.

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

• [107] Mater is a substantial organisation which could be expected to have procedures in place to deal with disciplinary matters.

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

• [108] Having regard to the appearances in these proceedings, the witness evidence, and the Respondent's closing submissions,[88] I find that the Respondent's enterprise did not lack dedicated human resource management specialists and expertise.

• [109] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

• [110] The impact of the termination on Mr Glover is a relevant consideration. Mr Glover adduced evidence in that regard.

• [111] The parties were at odds as to whether Mr Glover's conduct amounted to serious misconduct. It is not necessary for me to decide, as in any event the Respondent terminated Mr Glover's employment with payment in lieu of notice.[89]

• [112] Mr Glover says he was treated differently to another staff member who engaged in worse conduct but was not dismissed. He raises a number of complaints about the other staff member's conduct, including an allegation that the person sexually harassed Ms Thiele.[90] Inconsistent treatment can be a relevant consideration if established.

• [113] Mr Glover adduced evidence about some events he said occurred following the dismissal. I considered Mr Glover's claims about events after the dismissal to be irrelevant. It is not necessary to deal with them further here. I turned my mind to the issue of whether these claims suggested Mr Glover may not have had capacity to prosecute his application. However, having observed Mr Glover at the conference held earlier in the proceedings, the mention, and at the hearing, I did not have sufficient basis for such a conclusion.

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

• [114] Findings have been made, as set out above, in relation to each matter specified in section 387 of the Fair Work Act. The Commission must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[91]

• [115] Having considered each of the matters specified in section 387 of the Fair Work Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable. There was a valid reason for the dismissal, of which Mr Glover was notified, and in respect of which he had an opportunity to respond. There was no refusal to allow a support person. To the extent there were mitigating factors in relation to Mr Glover's conduct, or in respect of the disciplinary action to be imposed, or issues raised about whether Mr Glover was treated inconsistently with another staff member, those factors or issues do not outweigh the factors that militated in favour of dismissal.

• [116] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Glover was unfairly dismissed within the meaning of section 385 of the Fair Work Act.

• [117] Mr Glover's application for an unfair dismissal remedy is dismissed.

Mr D. Cutler and Mr T. McCubbin for the Respondent.

Applicant's closing submissions filed 16 December 2024.

Respondent's closing submissions filed 20 December 2024.

Applicant's closing submissions in reply filed 6 January 2025.

[1] Fair Work Act 2009, section 390.

[2] Ibid, s 382.

[3] Ibid, ss 385 and 390(1).

[4] Ibid, s 397.

[5] Ibid, s.399

[6] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[7] Applicant's outline of submissions filed 8 October 2024, [21]-[23].

[8] Applicant's outline of submissions filed 8 October 2024, [24].

[9] Applicant's outline of submissions filed 8 October 2024, [29].

[10] Applicant's outline of submissions filed 8 October 2024, [43(c)].

[11] Applicant's outline of submissions filed 8 October 2024, [35]-[41].

[12] Applicant's outline of submissions filed 8 October 2024, [43(d)].

[13] Respondent's outline of submissions filed 5 November 2024, [11].

[14] Respondent's outline of submissions filed 5 November 2024, [12].

[15] Respondent's outline of submissions filed 5 November 2024, [34].

[16] Respondent's outline of submissions filed 5 November 2024, [29]-[31].

[17] Respondent's outline of submissions filed 5 November 2024, [27]-[32].

[18] Respondent's outline of submissions filed 5 November 2024, [33]-[36].

[19] Respondent's outline of submissions filed 5 November 2024, [37]-[40].

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

[21] Edwards v Justice Giudice [1999] FCA 1836, [7].

[22] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

[23] Exhibit R7, [22] and annexure GM07.

[25] Exhibit R7, [25] and annexure GM08; Exhibit R8, [4]-[6] and annexure NE01.

[26] Exhibit R7, [26]-[27] and annexure GM09.

[29] Exhibit R8, [7] and annexure NE02; Exhibit R7 annexure GM10.

[31] Exhibit R7, [33] and annexure GM10.

[32] Exhibit R8, [7]-[10] and annexure NE02.

[36] Exhibit R7, [56] and annexure GM18.

[37] Exhibit R7, [57]-[59] and annexure GM19.

[39] Exhibit R9, [16] and [17], and annexure LB03.

[40] Exhibit R9, [19] and exhibit LB-04.

[41] Exhibit R9, [25]-[27], and annexure LB05.

[42] Exhibit R9, [28], and annexure LB06. The private email address was the same as the one appearing on various documents Mr Glover adduced into evidence in these proceedings.

[44] Exhibit R9, [31]-[34] and annexure LB07.

[47] Exhibit R9, [34]-[36] and annexure LB08.

[51] Privacy Act 1988 (Cth) s 15 and sch 1 cl 12.

[52] Applicant's closing submissions filed 16 December 2024, [89].

[53] Exhibit R9, annexure LB08. Exhibit A1, [19]-[25].

[54] Exhibit A1, annexure setting out chronology. Exhibit A19, [25]-[36].

[55] Applicant's closing submissions filed 16 December 2024, 11-13.

[57] Applicant's closing submissions filed 16 December 2024, 3-11.

[58] Exhibit A1, [14] and annexure 13. Applicant's submissions filed 16 December 2024, 4-6.

[66] Exhibit A1, [31]. Dr Glover, Mr Glover's mother, gave evidence that she received this telephone call from Ms Madden, in exhibit A20.

[67] Applicant's closing submissions filed 16 December 2024, [129].

[72] B, C and D v Australian Postal Corporation t/a Australia Post [2013] FWCFB 6191, [36].

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

[74] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[75] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[78] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[79] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1, 14-15.

[80] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7.

[86] Exhibit R9, annexures LB05, LB06 and LB09.

[88] Respondent's closing submissions filed 20 December 2024, [58].

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

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