//
[62]
[2025] FWCFB 126
General information, not legal advice.
Fair Work Commission (Full Bench)
2025-06-26
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 26 June 2025.
Reference to decision in paragraph [53] has been updated.
s.604 - Appeal of decision
Appeal against decision [2024] FWC 3424 of Commissioner Perica on 6 December 2024 in matter number C2024/225
[1] Helen Woodlock seeks permission to appeal and appeals against a decision[1] of Commissioner Perica in which he determined a dispute that had been referred to the Fair Work Commission under s 739 of the Fair Work Act 2009 and the dispute resolution procedure in clause 10 of the Parks Victoria Enterprise Agreement 2021 (Agreement). The dispute concerned Parks Victoria's proposal to dismiss Ms Woodlock for misconduct. The incident in question involved Ms Woodlock's serious verbal abuse of a worker employed by a third party in a café situated in the Dandenong Botanical Gardens, where Ms Woodlock had worked for many years.
[2] The dispute centred on a misconduct process conducted under clause 29 of the Agreement. The prescribed process involves an investigation into allegations of misconduct. Relevantly, the process prescribed by the clause requires procedural fairness and natural justice at all stages (clause 29.3(b)). Where allegations are substantiated, the process provides for the investigation report being considered by a senior manager who proposes a disciplinary outcome which "must be fair and reasonable in all the circumstances and not disproportionate to the seriousness of the matter" (clause 29.7(b). The process also requires that all matters involving possible termination of employment are to be referred to the Chief Executive who makes the final decision.
[3] The misconduct process concerning Ms Woodlock arose from an incident in the afternoon of 26 August 2023. The outcome of the process was that the CEO proposed the termination of Ms Woodlock's employment. The parties requested that the Commissioner determine the dispute by answering two questions related firstly to the requirements concerning procedural fairness, and secondly, whether the outcome was fair, reasonable and proportionate to the misconduct.
[4] The Commissioner's determination of the first question was that Ms Woodlock was not afforded procedural fairness at all stages during the misconduct investigation. The Commissioner then went on to determine that the proposed termination of Ms Woodlock's employment was a "discipline outcome that is fair and reasonable in all the circumstances and not disproportionate to the seriousness of the matter" for the purposes of clause 29.7(b) of the Agreement. The Appellant contends that the Commissioner erred in deciding the second question.
[5] The factual background set out in the decision is that Ms Woodlock was employed as a team leader at Parks Victoria which involved managing a gift shop at the Dandenong Botanical Gardens. Ms Woodlock has worked for Parks Victoria for 21 years. Up until the incident that culminated in the proposed termination of her employment, she had an unblemished record and often received unsolicited praise from customers.
[6] The Gift Shop is located near Café Vireya, which is commercially leased and not run by Parks Victoria. Since around 2020 it has been operated by a company called Prime Hub. Prior to a restructure in 2021, Ms Woodlock was the primary contact between the café and Parks Victoria, including for customer complaints. At some point Ms Woodlock was told not to enter the Café and that complaints were to be dealt with by another team. There were more than 75 complaints from the public about Café Vireya under Prime Hub, and many complaints would be made to Ms Woodlock and her team because of the proximity of the Café to the gift shop, notwithstanding that she was not responsible for dealing with them.[2]
[7] In the decision the Commissioner set out in considerable detail the facts concerning the incident on 26 August 2023 which triggered the misconduct process.[3] The incident took place over 8 minutes between 3:03 pm and 3:11 pm after Ms Woodlock had received several complaints from customers that the Café was open but not staffed.[4] The incident itself is captured by CCTV footage which we have also carefully reviewed.
[8] The Commissioner's findings based on the CCTV footage (with which we generally concur) are set out at [32]-[44] of the Decision as follows:
"External CCTV footage and Ms. Woodlock's evidence
[32] The outside CCTV footage captures a scene looking down from the entrance of the Café and onto the wooden verandah to the Café. It has wooden tables and benches and large umbrellas. The recording is for 4 minutes and 17 seconds from 3:01 PM and 29 seconds to 3:05 PM and 47 seconds on 26 August 2023.
[33] There are two customers sitting at one of the tables with a picnic basket on the table. One of the customers had a pink turtleneck jumper (I will refer to her as "The First Customer"). At about 12 seconds in, Ms. Woodlock, who is standing on a walkway beneath the verandah engages in a conversation with the customers. She is wearing a Parks Victoria vest. The first exchange between them is inaudible but then Ms. Woodlock says "...and what will happen now is I am not allowed in there and I'll get another... (the rest is inaudible). In cross examination, Ms. Woodlock said "she did not recall saying that" but conceded that if it was detected on the audio then she "accepted it". The conversations continued but the exchange is inaudible from that point.
[34] Ms. Woodlock then walks up away from the seated customers and up the walkway towards the entrance of the Café. Ms. Woodlock then engages with a young woman who appears to have just come out of the Café. She says, "Hi guys, is the Café shut?" She then engages with a family, one member of whom is an elderly man using a walker. Ms. Woodlock says, "Hey, is there no one here?" The younger man in a grey cap says, "No, there is about twenty people coming through..." to which Ms. Woodlock responds "I'm so sorry...it's not Parks Victoria it's a private licensee". The family walk down along the verandah and the man in the walker interacts with the two women at the table and he says, "Bloody disgusting" and one of the women responds, "Bloody terrible".
[35] In her evidence, Ms. Woodlock says after this first exchange, she walked around to the carpark to check Mr. Devgan's car. The gates were shut and he was not in his car, which was parked outside the Café.
[36] Ms. Woodlock comes into shot from the entrance of the Café (presumably after checking the car park) and says "Nup" and walks down the verandah, she interacts with the seated customers and keeps walking past them. The First Customer says something inaudible. Ms. Woodlock turns faces them and says, "Yes please". Ms. Woodlock goes around the corner and then comes back towards the women. She says "You know what I don't have enough support, this is not the first or last time... I am so sorry (the rest is inaudible). The First Customer stands up and walks with Ms. Woodlock to the door of the Café and says, "I will take a photo" and then says, "I'm lovin' this". Ms. Woodlock turns to face the seated woman, points to herself and The First Customer and says, "Thelma and Louise". Off camera, someone says "No one, No one".
[37] The internal footage surveys the inside of the Café. At the front of the Café facing the door is an ice cream fridge. Next to the ice cream fridge is a white door into the kitchen. On the other side of that door, facing into the café is a display fridge for cakes, a register and a coffee machine. On the wall opposite the entrance there is a door leading to toilets. The body of the Café has chairs and tables. The footage captured on this video is from 3:03 PM and 8 seconds to 3:11 PM and 5 seconds.
[38] As Ms. Woodlock enters the Café by herself, she forcefully opens the kitchen door with both hands. She stands at the door presumably to see if there is anyone there. She walks back into the Café towards the door to the toilets. She opens and goes through the door. She yells "Hello, hello" with increasing volume. She forcefully opens to door with the palm of her hand and yells "Fuck!" She then walks towards the front door of the Café and opens the front door with a bang. At about 3:05 and 49 seconds, the First Customer and Ms. Woodlock walk into the Café together. Ms. Woodlock holds open the door from inside the kitchen. The First Customer who has her phone in her hand takes photos inside the kitchen while she is standing in the doorway. Both move towards the centre of the Café in front of the refrigerated display cabinet. The First Customer takes a photo of the front of the Café.
[39] Ms. Woodlock and The First Customer move towards the door to the toilets across from the entrance of the Café. At about 3:06 PM and 27 seconds where Ms. Woodlock stands at the door says "I am not allowed to be in here" and then says "I shouldn't be doing this" and puts her index finger to her mouth as if to indicate "shh". In cross examination, Ms. Woodlock conceded she said, "I am not allowed to be in here" and that "it looks like" she was making the "shh" gesture. The First Customer moved towards the door put her head and says "hello" multiple times.
[40] At about 3:06 PM, Mr. Devgan walked through the front door. On seeing him, Ms. Woodlock yells "Jesus Christ, what the shit's going on?" The First Customer then says "why is the Café open but we can't get a coffee?" Mr. Devgan moved to a position behind the coffee machine nearer where the two women were standing. Ms. Woodlock was gesticulating with her right hand and yelled "People have been waiting here for fucking forty-five minutes! People are asking for food. Where are you?"
[41] Mr. Devgan gives an inaudible response. Ms. Woodlock moved to stand next to the ice cream fridge near the entrance. The First Customer stood directly next to the display fridge. Mr. Devgan stood behind the display fridge. The First Customer made an inaudible complaint to Mr. Devgan. Ms. Woodlock put up her hand as if to gesture to The First Customer to stop. Ms. Woodlock then said "you know what, I am so sorry, this lady, this lady has been waiting for an hour and the other gentlemen who was in a walker came up to me and yelled at me and I'm really angry I am so sorry and you know me. I've been here, I've dealt...I've done everything. I've been to your car and there's more people coming. What the hell is going on?"
[42] Mr. Devgan then explained that "I walked to the IGA to get paper for the EFTPOS machine". Ms. Woodlock then says, "You were gone for an hour". The First Customer says, "Why was the door open for?" Ms. Woodlock then took The First Customer by the hand. Ms. Woodlock then made a hand gesture and a third person, a woman with a green jacket on, entered the Café (I will refer to her as the Second Customer). An inaudible exchange ensued between The First Customer and Mr. Devgan. Ms. Woodlock then says, "These ladies have been sitting for thirty minutes... they both have photos of a gentlemen on a walker...and they've come in, sat down for an hour and there's no one here". Ms. Devgan then made a response that was inaudible.
[43] Ms. Woodlock then said in a loud voice, "Do you know what? And again I am sorry to diss you in front of customers but I've got these people coming up and I want to look after them. We've walked around for perhaps thirty minutes. The other man walked in and I'm like hello, hello. These are our customers into our gardens, and where are you? So yes, I am upset because this is our gardens." While she was saying this, the First Customer was interjecting "we were there for over an hour." The Second Customer also said something which was inaudible on the footage.
[44] Ms. Woodlock then said "I have been told not to enter here...because I've been told like because of our relationship, but when I have on a Saturday when I come to work three amazing people, not only that, five people in the business centre on walkers that have come in and they've rung and nothing is here...What?" Ms. Woodlock and the two customers are at this stage standing in a line facing Mr. Devgan. Mr. Devgan then says "Can you please stop yelling at me?" The First Customer then says "the reason we are yelling at you... (the rest is inaudible). The two customers then angrily speak to Mr. Devgan and he responds. Ms. Woodlock is passive and leaning against the wall. She walks towards Mr. Devgan with a hand gesture with an open palm facing Mr. Devgan she says, "we know each other, can we just get through this? You need to talk to your manager please." The First Customer says three times: "What is your name". Mr. Devgan then crosses his arms. Ms. Woodlock then says "Why don't you tell them what your name is?" The three women leave the Café and the door slams.
[9] The CCTV footage also shows that for most of the incident Ms Woodlock was physically separated from Mr Devgan by the coffee machine or display fridge and was standing about one metre away from him. At around 3:10 pm, Ms Woodlock moved closer to Mr Devgan, moving behind the counter, and speaking in a normal tone with palms facing up and as the Commissioner found can be heard to say "we know each other, can we just get through this? You need to speak to your manager please". When a moment later Ms Woodlock and the two customers walked out, Mr Devgan almost immediately walked to the door and followed them out. Mr Devgan appears to speak in a normal tone throughout the exchange and has no outward display of being intimidated by Ms Woodlock and the two middle-aged female customers. He appears to be a mature man of average stature.
[10] Following a complaint by the operator of Café Vireya about Ms Woodlock's conduct towards Mr Devgan, the incident was investigated and four allegations about Ms Woodlock's behaviour were substantiated. The proposed disciplinary outcome of the misconduct process was the termination of Ms Woodlock's employment.
[11] The first three substantiated allegations can be summarised as:
Allegation 1 (Entering the Café)
Ms Woodlock entered Café Vireya at 3:03PM in circumstances where she knew she was not permitted to do so.
When Ms Woodlock entered the Café alone, she entered the kitchen, opened a door "aggressively" and shouted hello and screamed out someone's name; and flung a door open in an aggressive manner and shouted "fuck" before forcefully pushing the café door open with both hands and existing the Café.
When Ms Woodlock re-entered the Café at about 3:05pm with the customer, she:
[12] In relation to Allegation 1, the Commissioner rightly rejected Ms Woodlock's challenge to this allegation. The Commissioner assessed this conduct to be at a "middling level of seriousness and on its own not sufficient to justify termination as a disciplinary outcome".[5] As to Allegation 2, as it arises from the CCTV footage and there was no evidence of any person observing the conduct, the Commissioner found this conduct was trivial and does not meet the definition of misconduct. The Commissioner found the allegation was substantiated only in relation to Ms Woodlock entering the kitchen contrary to a lawful direction not to enter the Café.[6] In effect therefore, it duplicates Allegation 1. The misconduct in Allegation 3 (which was conceded by Ms Woodlock to be misconduct) was assessed by the Commissioner as "relatively less serious than the conduct" in Allegation 4.[7]
[13] The most significant misconduct was Allegation 4, relating to her conduct over 4 minutes:[8]
"Then at 3:06PM, Mr Abhishek Devgan ('Abhi'), a Café staff member walked into the Café: Ms Woodlock:
(a) turned to face him and loudly shouted out words to the effect of 'Jesus Christ! What the shits going on?
(b) in response to the Customer asking Abhi why the Café is open, but she can't get coffee, you screamed out (while clenching you fists), words to the effect of 'we've been here for fucking forty- five minutes! People are asking for food. Where are you ?
(c) in response to Abhi's response, you walked towards the front door, stood at the end of the counter and said words to the effect of 'you know what, I'm so sorry, this lady, this lady has been waiting for an hour and the other gentleman who was in a walker has come up to me and yelled at me and I'm really angry and I'm so sorry, and you know me, I've been here, I've dealt.....I've done everything, I've been to your car and there's more people coming. What the hell is going on!?'
(d) after Abhi explained that he had walked to the IGA supermarket to get paper for the EFTPOS machine, the Customer asked Abhi why he was gone for an hour and left the door open, and Ms Woodlock then:
(i) the Customer's hand and motioned for a second female customer to enter the Café
(ii) in a loud and aggressive manner, said words to the effect of 'these ladies have been sitting for thirty minutes.......they both have photos of a gentleman on a walker.........and they've come in, sat down for an hour and there's no one in here'
(iii) in a loud and aggressive manner, said words to the effect of 'and, do you know what? And again, I'm so sorry to dis you in front of customers but I've got these people coming up and I want to look after them. We've walked around for perhaps thirty minutes. The other man walked in and I'm like 'hello, hello'. These are our customers into our gardens, and where are you ? So, yes, I am upset because this is our gardens
(e) that after the Customers spoke to Abhi about the Café being open and not staffed, you said words to the effect of 'and I've been told not to enter here.....because I've been told like because of our relationship, but when I have on Saturday when I come to work three amazing people, not only that, five people in the business centre on walkers that have come in, they've rung (motioning ringing a bell with her hands) and nothing is here...... What?!'
(f) that you walked around behind the counter and while holding up you hand to Abhi said words to the effect of 'can I just say one thing, sorry, please can we just get through this? You need to speak to your manager, please?'
(g) that after the Customers asked Abhi to tell them what his name is, you said words to the effect of 'tell them what your name is', and then left the Café, slamming the door and began shouting once you left the Café."[9]
[14] In relation to the conduct described in Allegation 4, the Commissioner found:
"[263] This conduct is at the serious end of the spectrum of misconduct. Ms. Woodlock, as a leader, is expected to model good behaviour. Ms. Woodlock set the tone by yelling expletives at Mr. Devgan. She was in uniform. The uniform is a signifier that she is an employee of PV. She represents PV while she is in uniform. By conducting herself in this manner, she damaged the reputation of PV in front of patrons at the Gardens.
[264] The grading of the misconduct is exacerbated by the fact that it was done in front of members of the public. Not only that, but the customers participated in it. Ms. Woodlock stood by while the other two customers aggressively questioned Mr. Devgan. By her passivity she has, by omission, condoned behaviour that did not respect Mr. Devgan or treat him with dignity.
The de-escalation attempts she made did not diminish the seriousness of the behaviour because she was deescalating from a high temperature that she herself had set.
[265] The two, and then three, against one nature of this conduct was degrading and humiliating for Mr. Devgan. Mr. McDermott for PV was reluctant to call it bullying because that word now has a technical meaning which includes repeated conduct. The conduct inside the Café had the hallmarks of bullying. It amounted to abuse and mistreatment of Mr. Devgan in circumstances of a power imbalance caused by the group aspect of the behaviour.
[266] An important consideration in assessing the conduct in Allegation 4 is its effect on Mr. Devgan. In his statement to the investigator, Mr. Devgan stated:
"I am not working there at all now after the incident took place with Helen on 26 August 2023. I had to leave after what she did to me as I was very ashamed. I could not find another job on the spot. It was not a good time." (emphasis added).
[267] The behaviour complained of in Allegation 4 had the effect that he left employment at the Café "after what [Ms. Woodlock] did to me". The behaviour had serious consequences which supports an assessment that the misconduct can be regarded as serious."
[15] The Appellant raises 3 grounds of appeal. The first is that the Commissioner erred by:
(a) finding that the proposed termination of Ms Woodlock's employment was a "discipline outcome that is fair and reasonable in all the circumstances and not disproportionate to the seriousness of the matter" for the purposes of clause 29.7(b) of the Agreement;
(b) failing to find that the proposed termination of Ms Woodlock's employment was a discipline outcome that was not "fair and reasonable in all the circumstances and not disproportionate to the seriousness of the matter" for the purposes of clause 29.7(b) of the Agreement.
[16] Ground 2 is put as an alternative to the first if the Commission finds that the correctness standard does not apply. However, as we agree that the correctness standard does apply, we need not deal with this ground.
[17] The third ground is that the Commissioner denied Ms Woodlock procedural fairness by finding that her conduct caused serious consequences for Mr Devgan and relying on that finding to assess the severity of Ms Woodlock's misconduct, in circumstances where:
(a) Mr Devgan was not a witness and Ms Woodlock did not have the opportunity to cross-examine him;
(b) the Commissioner had not put Ms Woodlock on notice that he was contemplating making that finding.
[18] Both parties submitted that the correctness standard applies to this appeal. We agree. The correctness standard applies to this appeal because the legal criterion that was required to be applied by the Commissioner at first instance demanded a unique outcome.[10]
[19] Clause 29 of the Agreement is titled "Management of Misconduct". Relevantly, subclause 29.7(b) provides that where an allegation of misconduct is substantiated by an investigator, a member of the Executive or their delegate will consider the findings and propose a disciplinary outcome. The discipline outcome must be fair and reasonable in all the circumstances and not disproportionate to the seriousness of the matter.
[20] The Commissioner correctly construed subclause 29.7(b) as imposing an obligatory standard that discipline outcomes must be fair and reasonable in all the circumstances and not disproportionate to the seriousness of the matter.[11]
[21] The discipline outcome proposed to be applied to Ms Woodlock was the termination of her employment. This outcome either was or was not "fair and reasonable in all the circumstances and not disproportionate to the seriousness of the matter" for the purposes of clause 29.7(b) of the Agreement. The Commissioner was required to determine the correct answer to this question. That is so, even though answering the question of whether the outcome did or did not meet the required standard involves value judgments and an evaluative assessment. It does not involve the exercise of a discretion even though, somewhat unusually, the obligatory standard imposed by the Agreement itself involves language more usually found in discretionary decisions. However, the correctness standard applies even though reasonable minds may differ about the matter.
[22] The obligatory standard was that the proposed termination had to be fair and reasonable and not disproportionate. If one of these standards was not met, the correct answer to the question to be determined must be "no". The Full Bench has to decide for itself whether the proposed disciplinary outcome was one that was fair and reasonable in all the circumstances and not disproportionate to the seriousness of the matter, as required by clause 29.7(b).
[23] There are two limbs to Appeal Ground 1:
that the proposed dismissal is not reasonable or proportionate because the factors in mitigation outweighed the seriousness of the misconduct involved; and
that the proposed dismissal is not fair because it is not free from injustice in two respects:
(i) because of an intervention following receipt of the investigator's draft findings by a Parks Victoria employee resulting in changes to the final report, which was not disclosed to Ms Woodlock; and
(ii) because the CEO's decision that dismissal was the appropriate disciplinary outcome included consideration of a memo that wrongly conveyed that Ms Woodlock had a prior disciplinary record.
[24] The Commissioner appreciated that the required task was to measure the proposed termination of Ms Woodlock's employment against the standard prescribed by the Agreement. That involves assessing the seriousness of the misconduct in all the circumstances including the mitigating circumstances.
[25] At paragraph [268] the Commissioner identified the following series of mitigating circumstances when considering whether the proposed outcome of termination was fair, reasonable or proportionate:
"Ms. Woodlock is a long-term employee of 21 years. She has had an unblemished disciplinary record. A review of her 2016 to 2023 performance developments plans in evidence establish she had an excellent performance record.
In the weeks leading up to the incident, Ms. Woodlock suffered several difficult personal issues which included the death and serious illness of close family members and she herself suffered from a respiratory illness. I accept she was still recovering from that illness on the day of the incident.
In the early afternoon of the incident Ms. Woodlock was "shaken and unsettled" by aggressive and threatening" complaints she had received by "extremely agitated" middle aged couple because "no one was in attendance at the Café and could not get a coffee". She had also received other complaints about the Café that morning.
In her oral evidence, and throughout the investigation process, Ms. Woodlock expressed what I regard as genuine remorse for her actions and an acceptance responsibility for them. A flavour of that remorse can be obtained from the e-mail which accompanied her 6 December response to the findings of Ms. Francese:
'I would like to reiterate that I am extremely remorseful for my actions. I have always sort to fulfil my obligations during my career with Parks Victoria, and I am disappointed in myself for not maintain the level of professionalism that I understand is expected of my role.'
[26] We agree that each of these are mitigating circumstances.
[27] As the Commissioner found, the assessment of Ms Woodlock's behaviour by her managers detailed in each of the performance development plans before the Commission, spanning the last 7 years, demonstrates an excellent performance record. They also demonstrate very positive assessments of her integrity, leadership, performance, accountability, professionalism and behaviour. In the first performance review Ms Purdue's (a witness for the Respondent in the case below) assessment was:
"Helen is an extremely high performing team member that may not understand how valuable she is. Helen consistently completes all tasks to a high standard and despite her workload, continues to maintain a level of good humour and camaraderie with all team members. Helen operates very well under pressure and this has been evidence in the regular changes and challenges with the rollout of new commercial ventures. Helen maintains a high level of professionalism and integrity and treats all staff with respect. Helen has had a very challenging task over the last 18 months and despite a number of frustrations outside of her control, she continues to perform and maintains a calming influence."[12] (emphasis added)
[28] The positive assessments continued through to her most recent plan, where her manager, Ms Purdue, observed:
"Helen is the driving force between the positive team culture that exists at the Dandenong Ranges Botanic Gardens. Helen and her team watch out for each other and genuinely care for and support each other. Helen has been required to work through some challenging staffing issues with her team and I have seen her work through these issues with care for the staff while also representing the best interests of Parks Victoria."[13]
And in relation to Values, under the subheadings "Integrity" and "Accountability" and "Respect" Ms Purdue recounted: "Helen always operates with a high level of integrity", "Helen operates with a high level of accountability and always takes responsibility for herself" and Helen always treats people with a high level of respect".[14] (emphasis added)
[29] Ms Purdue made similar assessments in the previous year including: "Helen always treats all people with a high level of respect", "Helen leads the positive team culture in the Dandenong Ranges Gardens. Helen has a strong focus on personal accountability and leads by example across her team. The team responds well to Helen's leadership style and operate as a strong cohesive unit where all members support each other", and "Helen always operates with a high level of personal and professional integrity."
[30] Ms Woodlock's performance plans highlight how the incident lasting a few minutes on 26 August 2023 was out of character and at odds with her behaviour over many years, including when faced with challenging circumstances. The evidence before the Commissioner also included details of personal and health issues with which Ms Woodlock was dealing, and which were acknowledged by her manager in her evidence in the hearing. There was also evidence that on the day of the incident Ms Woodlock had come into work to assist her team, despite not being fully recovered and not being rostered to work. Further, the evidence established that there was a lengthy history of complaints about the café which Ms Woodlock had been required to deal with. While not entirely mitigating Ms Woodlock's behaviour on 26 August 2023, these matters provide context.
[31] The Commissioner also found as a mitigating circumstance that Ms Woodlock was genuinely remorseful for her actions and accepted responsibility for them. She conceded her conduct was unprofessional, inappropriate and unreasonable and did not seek to trivialise or excuse it.
[32] A related circumstance, not expressly recognised by the Commissioner, is that the prospect of a repeat of similar behaviour is remote. Ms Woodlock's evidence was that she had made progress in processing the personal issues she had been dealing with and is now better at recognising trigger points and has strategies for dealing with them. In this regard Ms Woodlock said:
"This whole process has given me the scare of my life. I love working at Parks Victoria. My job means everything to me, and I'll never again do anything which puts it at risk. I understand that if I return to work, Parks Victoria may wish to monitor me more closely than they were before. I understand why, and I commit to proving to Parks Victoria that I deserve another chance. If I am allowed to return to my job, I would be returning much healthier, stronger and better able to deal with stressful situations."[15]
[33] The final mitigating circumstance the Commissioner took into account was the detrimental consequence for Ms. Woodlock if her employment was terminated, partly because her identity and sense of community is derived from her work at the Gardens, and that at around 60 years of age, her capacity to find other employment would be affected. Ms Woodlock is deeply embedded in the Gardens community and said in her evidence that:
"My job at Parks Victoria is more than just a job for me. I live in the community where I work, and many people around Olinda recognise me and describe me simply as 'Helen from Parks'. I've worked at Parks Victoria for more than 20 years and my job has become a significant part of my identity."
[34] While these matters also do not mitigate Ms Woodlock's conduct, they are relevant to the proportionality of the penalty of dismissal.
[35] In relation to Allegation 1, we agree that entering the Café when she knew she was not to do so, is misconduct, but not particularly serious. We also agree with the Commissioner in relation to Allegation 2, that Ms Woodlock's behaviour in the Café on her own, not witnessed by anyone, was trivial and is not misconduct. We consider that Allegation 3 involves misconduct but not particularly serious misconduct.
[36] However, in relation to Allegation 4 Ms Woodlock's conduct over the next 4 minutes was significant and inexcusable. Most significantly, when Mr Devgan came into the Café, she shouted and swore at him. She did so in her Parks Victoria uniform, and in front of one, and then two members of the public. By her silence and by bringing the customers with her into the Café, she condoned the rude way they spoke to Mr Devgan. As a team leader who had received training on respect, workplace bullying and other relevant subjects, she knew the standards of behaviour expected of her, and fell well short of them.
[37] The Commissioner discounted Ms Woodlock's several attempts during the incident to de-escalate the situation by lowering her tone of voice, approaching Mr Devgan with open palms, and explaining to Mr Devgan why she was upset and was sorry for having to "diss" him in front of customers because "she was de-escalating from a high temperature that she herself had set."[16] Although true that it was Ms Woodlock's actions that set the tone for the interactions, we consider that her attempts to de-escalate should not be entirely discounted and in a small, but not insignificant way, should be considered in assessing the seriousness of the misconduct. She was struggling to manage her emotions and prevent further escalation, although largely unsuccessfully.
[38] The Commissioner considered the effect on Mr Devgan to be an important consideration in assessing the seriousness of the misconduct. Any person who was subjected to swearing and shouting would likely be upset. However, the Commissioner went further and relied on an incomplete draft record of interview of Mr Devgan which includes "I had to leave after what she did to me as I was very ashamed." Based on this record, the Commissioner found that Ms Woodlock's conduct caused Mr Devgan to leave his employment at the Café.[17] Mr Devgan was not a witness in the case below and the accuracy of the record and the meaning of this statement cannot be reliably ascertained. Despite several efforts by the investigator, Mr Devgan failed to confirm the accuracy of the notes of interview.[18] In our view, the draft witness statement is not a sound evidentiary basis for such a significant finding.
[39] Notwithstanding our view about the reliance the Commissioner placed on the draft record of interview with Mr Devgen, it remains the case that Ms Woodlock subjected a worker employed by a third party who was a tenant of the Respondent, to brutal public humiliation. While the worker's impact statement carries little weight on the basis that he did not give evidence, the seriousness of Ms Woodlock's conduct is not diminished by the absence of direct evidence of impact. Abuse of this kind presents a real risk of harm to its victim. Regardless of whether the risk materialises, this conduct constitutes a serious occupational health and safety hazard. Such abuse of workers, whether by members of the public, management, or other workers, is completely unacceptable. When committed by an employee, it is misconduct at the serious end of the spectrum of misconduct. The Commissioner considered that this was the case in the present matter, and we agree. We are also of the view that the severity of the conduct was heightened by the fact that Ms Woodlock effectively rallied members of the public to join in the verbal attack on Mr Devgen, evidenced by the reference to herself and a member of the public Ms Woodlock encouraged to engage in the conduct towards Mr Devgen, as "Thelma and Louise".
[40] However, it was a feature of this case that there were numerous and significant countervailing considerations in Ms Woodlock's favour. The misconduct occurred in the setting of a period of employment spanning more than 20 years. Ms Woodlock had an otherwise unblemished disciplinary record. She had several outstanding performance reviews. She is 60 years of age. It is also clear that Ms Woodlock is genuinely contrite, which is a reliable indicator that she will not conduct herself in this way again. In some cases, an employer may have little choice but to dismiss a worker for misconduct despite any extenuating circumstance, for example, to ensure the safety of the workplace, or because the employment relationship has been irreparably damaged. But this is not such a case.
[41] What took place was an uncharacteristic outburst of frustration and anger lasting 4 minutes, which as we have noted, was partly explained by the poor emotional state Ms Woodlock was in, as a result of her personal circumstances. We are also of the view that the personal difficulties Ms Woodlock was suffering were exacerbated on the day of the incident, as a result of the respiratory illness that Ms Woodlock was recovering from, the many incidents involving the café that Ms Woodlock had been required to deal with over a lengthy period, and her distress at having to deal with angry customers of the café immediately prior to the incident.
[42] As we have stated, the question we are required to determine in this appeal, is whether the Commissioner was correct in his conclusion that dismissal is a disciplinary outcome that is "fair and reasonable in all the circumstances and not disproportionate to the seriousness of the matter". The concepts of fairness, reasonableness and proportionality are distinct, even though they may overlap. Proportionality focuses on the relationship of the sanction to the disciplinary offence. Ms Woodlock's conduct was serious. In our opinion, dismissal is not disproportionate to the seriousness of her conduct.
[43] The distinction in clause 29 between "fair" and "reasonable" is a fine one. On one view, "fair and reasonable" is simply used as a composite expression which means little more than "fair". However, in the present case, it is important that the terms are contained in a process for dealing with misconduct, that is included in an enterprise agreement. In that context, reasonableness differs from fairness and is concerned with a decision that is the product of sound judgement. From the perspective of what is best for the employer's undertaking, there is nothing unsound about the judgement that abuse in the workplace will not be tolerated and that dismissal will enforce this standard. However, the fairness of the disciplinary outcome is clearly concerned with the interests of all concerned, which in this case include Parks Victoria, the worker who was abused, and Ms Woodlock. When all of the circumstances are considered, the continued employment of Ms Woodlock would not be unfair to Parks Victoria. We are satisfied that there is no risk of a repetition of the misconduct, and Parks Victoria will continue to receive the good service Ms Woodlock has provided for many years. The worker who was the subject of the incident would suffer no unfairness from Ms Woodlock's continued employment, because he no longer works in the café. On the other hand, for Ms Woodlock, the loss of her job would be a heavy, life changing penalty from which it is unlikely she would recover given that her prospects of gaining other employment are limited. In all of the circumstances, we consider that dismissal would be unfair.
[44] We therefore consider that the Commissioner did not arrive at the correct answer to the question of whether the proposed termination of Ms Woodlock's employment was a "discipline outcome that is fair and reasonable in all the circumstances and not disproportionate to the seriousness of the matter" for the purposes of clause 29.7(b) of the Agreement. Accordingly, we uphold appeal ground 1(a).
[45] In reaching this conclusion, we accept the Respondent's contention that the appeal did not impugn the logic or the rationality of the reasons for decision given by the Commissioner. But the assessment that was required in this case did not depend solely on logic and rationality. The Respondent's submission that the conclusion reached by the Commissioner was open to him would be a legitimate submission in an appeal from a decision in an unfair dismissal matter, where the concern of the Full Bench is to identify whether there is error of the kind in House v The King (1936) 55 CLR 499. But it is not a valid contention in this case where the issue in contest is whether the decision was "correct" in the sense identified earlier. The question on appeal is one that ultimately involves a value judgment. The fact that the Full Bench has reached a different evaluative conclusion from that of the Commissioner does not imply that he made any objectively verifiable mistake.
[46] Our conclusion in upholding the first limb of Appeal Ground 1 is sufficient to dispose of the appeal. Out of completeness, we briefly deal with the remaining appeal grounds.
[47] The second limb of Appeal Ground 1 is that the proposed dismissal was not fair in the sense of being "free from injustice" in two respects. Firstly, it is submitted that the investigator's draft findings that Allegation 1 was unsubstantiated and Allegation 2 was only partially substantiated, were substantively altered at the suggestion of a Parks Victoria human resources employee. Those changes were adopted by the investigator who found both allegations substantiated. This intervention is said to be unfair as the Commissioner found it traversed the line between factfinder and management that the misconduct process requires. However, the Commissioner, with whom we agree in this respect, did not find Allegation 2 to constitute misconduct, and also found the misconduct in Allegation 1 (entering the Café contrary to direction) was not particularly serious. These findings meant that any denial of procedural fairness was not material. It is therefore not necessary that we decide this ground of appeal.
[48] The second element of unfairness concerns the memo provided to the CEO for his consideration as to the appropriate disciplinary outcome, which wrongly conveyed that Ms Woodlock had a prior disciplinary record. This is said to have had the capacity to mislead the CEO and imported unfairness into the outcome. Consequently, the proposed discipline outcome is not free from injustice. Whilst the CEO did not specifically identify previous misconduct in the (non-exclusive) list of factors he considered in determining the proposed outcome, it is inherently likely that an erroneous belief that Ms Woodlock had been previously found to have behaved inappropriately would impact on his consideration.[19] We accept that the inaccurate reference to prior behaviour imports a degree of unfairness into the consideration by the CEO. We agree that these matters are indicative of unfairness. However, the unfairness is not material, on the basis that the Commissioner found that Ms Woodlock was not afforded procedural fairness in any event.
[49] Appeal Ground 3 concerns the Commissioner's finding that Ms Woodlock's conduct resulted in "serious consequences" for the Café employee, Mr Devgan. The complaint is that Ms Woodlock was denied procedural fairness as there was no opportunity to cross-examine Mr Devgan as he was not called as a witness, and the Commissioner had not put Ms Woodlock on notice that he was contemplating making a finding that her conduct caused serious consequences for Mr Devgan. This matter is also the subject of our finding in relation to appeal ground 1(a) and we do not consider it is necessary for us to deal further with this matter.
[50] A person who is aggrieved by a decision of the Commission must generally obtain the Commission's permission in order to appeal (s 604(1)). Where the decision was made pursuant to a dispute resolution provision in an enterprise agreement, this position may be modified by the terms of the agreement. In this case, subclause 10.22 of the Agreement makes it clear that an appeal can be made only with the leave of the Full Bench.
[51] We have concluded that the Commissioner's answer to the second question submitted for determination was not correct and have determined to grant permission to appeal to correct it. We grant permission on the basis that it is in the public interest that the provisions of enterprise agreements are correctly construed and applied and we have concluded that the Commissioner did not reach the correct result.
[52] The Commissioner determined that the proposed termination of Ms Woodlock's employment was a discipline outcome that is fair and reasonable in all the circumstances and not disproportionate to the seriousness of the matter. Respectfully, we have determined that it was not such an outcome because it was not fair. In doing so, we have not overlooked the advantage enjoyed by the Commissioner including viewing the witnesses give evidence. However, the conclusions we have reached do not rely upon different findings of credit or any significant factual dispute. Rather, we have taken a different view of what the correct application of the Agreement required.
[53] We order as follows:
Permission to appeal is granted.
The appeal is allowed.
The decision in [2024] FWC 3424 is quashed.
On rehearing, we determine:
Is the proposed termination of employment a "discipline outcome that is fair and reasonable in all the circumstances and not disproportionate to the seriousness of the matter" for the purposes of clause 29.7(b) of the Agreement?
[1] [2024] FWCA 4231 (Decision).
[4] Between 3:03PM and 3:06PM on 26 August 2023.
[8] The CCTV timestamp shows Mr Devgan entered the café at 3:03:43 and Ms Woodlock exiting at 3:10:48.
[10] Minister for Immigration v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at 563 per Gageler J).
[15] 2nd WS Woodlock at 31 -33 AB p936.
Printed by authority of the Commonwealth Government Printer
Helen Woodlock
Parks Victoria [2025] FWCFB 126
(1936) 55 CLR 499
(2018) 264 CLR 541