Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Alleged serious misconduct - Sending of explicit images - Conduct not sexual harassment -Conduct was breach of Code of Conduct -Failure to accept responsibility - Valid reason for dismissal - Despite procedural flaws no significant prejudice to applicant - Dismissal not unfair - Application dismissed.

[1] This matter concerns an application pursuant to s.394 of the Fair Work Act 2009 (the Act) by Mr Jay Higgins who alleges that the termination of his employment from Coles Supermarkets Australia Pty Ltd T/A Coles (Coles) was unfair.

[2] Mr Higgins commenced employment with Coles on 11 April 2014[1] and was summarily dismissed on 12 September 2016.[2] Coles alleged that Mr Higgins engaged in serious misconduct by sending "sexually explicit/pornographic images" to his line manager. Coles submits that the sending of these photographs was a serious breach of the Coles Code of Conduct (the Code).[3]

[3] On 5 September 2016, Coles alleged that the Mr Higgins sent a text message to his line manager, Mr Danniel Lacey, with a picture of a hand bandaged, where the thumb was replaced with a penis. Coles alleged that Mr Higgins then sent a second photo by text to Mr Lacey of a penis caught in a bike chain.[4]

[4] Mr Higgins was suspended from his duties, on full pay, pending a disciplinary meeting with Store Manager Mr Tim Scales. Following a disciplinary meeting Coles made the decision to summarily dismiss him due to a serious breach of the Code.[5]

[5] Mr Higgins submitted that the termination of his employment from Coles was harsh, unjust and unreasonable. Mr Higgins submitted there was no valid reason for his dismissal, and that he was not properly notified of the reasons for his dismissal, nor was he given an adequate opportunity to respond.

[6] Mr Higgins submitted that he considered Mr Lacey to be a personal friend and that he often exchanged personal text messages with Mr Lacey. He submitted the Toowong Coles bakery team had a culture in which it was normal for team members to send or show explicit material to each other. Mr Higgins submitted Mr Lacey had even welcomed receiving such material on more than one occasion.

[7] Mr Higgins submitted that he had not received warnings regarding his behaviour, nor did he receive any counselling. He submitted he was denied procedural fairness during the disciplinary meeting, as Coles did not properly accommodate for the fact that Mr Higgins has learning difficulties. Mr Higgins further submitted that his termination appears to be "preordained". Mr Higgins therefore submitted that his termination was harsh, unjust and unreasonable.[6]

[8] Mr Higgins lodged his application on 20 October 2016, some 16 days outside the statutory time limit of 21 days allowed for submitting an unfair dismissal application. The matter was listed for a Jurisdictional Hearing on 18 May 2017, where Riordan C granted Mr Higgins an extension of time.[7]

[9] The matter was subsequently referred to my chambers and was listed for Hearing of the substantive matters on 1 and 2 August 2017 in Brisbane. Closing arguments were heard on 7 September in Brisbane. At both Hearings, Mr Higgins was represented by Ms K Fredericks of Anderson Fredericks Turner Lawyers and Advocates. Coles was represented by Mr A Pollock of Counsel instructed by Herbert Smith Freehills.

[10] Mr Higgins began full time employment as a Baker with Coles Toowong on or about 11 April 2014.[8] From approximately April 2015 until November 2016, Mr Higgins was supervised by Mr Danniel Lacey, who was employed as the Coles Toowong Bakery Manager.

[11] On 5 September 2016, Mr Higgins and Mr Lacey engaged in a series of text messages.[9] During this exchange, Mr Higgins sent photos of an explicit nature to Mr Lacey.

[12] Following the text message exchange, Mr Lacey contacted Coles Human Resources (HR) Advisory services, during which he notified HR that he had received some explicit photos from Mr Higgins on his personal mobile phone.

[13] On 6 September 2016, Mr Higgins was suspended on full pay while an investigation was undertaken regarding the allegations made against him.[10]

[14] On 9 September 2016, Mr Higgins was advised by Mr Carl Hubby, his Second Store Manager, that he was required to attend a disciplinary meeting on 12 September 2016.[11]

[15] On 12 September 2016, Mr Higgins attended the disciplinary meeting. During this meeting, Mr Higgins was summarily dismissed due to serious misconduct resulting in a breach of the Code.[12]

[16] On 13 September 2016, Mr Higgins received correspondence from Coles advising that his employment had been summarily terminated for serious misconduct.[13]

A person has been unfairly dismissed if the FWC 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.

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

[18] Section 387 of the Act relevantly provides:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

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

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

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

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

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

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

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

(h) any other matters that the FWC considers relevant."

[19] Coles submitted that when viewed in totality, Mr Higgins' conduct, namely the explicit images he sent, his aggressive response to Mr Lacey directing him to cease sending explicit images, his attempt to mislead Coles in its investigation into his misconduct and his failure to recognise the seriousness of his actions when responding to the allegations[14] amounted to wilful or deliberate behaviour inconsistent with the continuation of the contract of employment.[15] Coles submitted Mr Higgins' actions amounted to serious misconduct.

[20] Coles submitted that even if the incidents did not amount to serious misconduct, they would still amount to a valid reason for dismissal. Coles submitted that whilst not every breach of a lawful and reasonable direction will automatically give rise to a valid reason for dismissal, the character of the relevant directions and policy in this case (going to the heart of Coles' values as an enterprise) and the nature of the breach (impacting the wellbeing of fellow employees and giving rise to broader risks for Coles as an employer) led to the existence of a valid reason in this case.[16]

[21] Mr Higgins did not dispute he engaged in exchanging text messages with Mr Lacey on 5 September 2016 and conceded that when viewed objectively, without taking into account the surrounding circumstances, the messages may appear to be regarded as a serious breach of the Code such as to provide a valid reason for dismissal. Mr Higgins submitted however, that when viewed in context, the text messages he sent to Mr Lacey did not amount to a breach of the Code.

Coles Code of Conduct and Equal Opportunity Policy

[22] Coles submitted that the explicit text messages sent by Mr Higgins resulted in a serious breach of the Code and Equal Opportunity Policy (EO Policy). Specifically, it submitted that by sending the explicit text messages to Mr Lacey, Mr Higgins engaged in behaviour that was considered to be harassment due to its offensive and sexual nature. Coles submitted this resulted in a serious breach of his duty to treat everyone with dignity, courtesy and respect.[17]

[23] Coles submitted Mr Higgins was aware, or ought to have been aware of his obligations under his employment contract, Code and the EO Policy. Coles submitted Mr Higgins agreed he was familiar with the policies and procedures[18] and the Coles intranet page known as myColes[19] where he knew he could access the policies.[20]

[24] Mr Higgins gave evidence that while he did receive training on the Code, the training was not in-depth as he was left alone in a room without anyone there to refer to and talk to about the Code.[21] Mr Higgins seemed to suggest his learning difficulties hindered his ability to answer the series of questions and quizzes about the Code.[22]

[25] Coles submitted that during the course of his oral evidence, whilst notably evasive on the issue, Mr Higgins eventually agreed that he was trained in Coles' requirements under the Code, and that Coles' training made clear to him that Coles would not accept harassment, sexual harassment, discrimination, bullying or any other inappropriate workplace behaviour. Coles submitted that whether or not Mr Higgins paid attention to these policies is not to the point: any failure to do so only aggravates his conduct.

[26] I accept Mr Higgins knew or ought to have known about the Code of Conduct and the expectations of him as an employee.

[27] Mr Higgins submitted that when taking into account the context in which the text messages were sent, it could not be satisfied that he engaged in conduct amounting to sexual harassment towards Mr Lacey. Mr Higgins relied on the section of the Equal Opportunity Policy that states as follows:

"Behaviour that is based on mutual attraction, friendship and respect is not likely to be sexual harassment, as long as the interaction is consensual, welcome or reciprocated."

[28] Mr Higgins submitted that he and Mr Lacey had a personal friendship outside of work, and that the explicit text messages were sent on a personal level to Mr Lacey on private phones outside of work hours. Mr Higgins submitted he had sent messages of a similar nature to Mr Lacey in the past, and Mr Lacey had found such images amusing. Mr Higgins submitted that the images he sent on 5 September 2016 were not unwanted, but rather were endorsed by Mr Lacey. Mr Higgins also submitted that Mr Lacey's response to the first text message on 5 September encouraged him to send further text messages.

[29] Mr Higgins submitted that on or around May 2015, Mr Lacey provided Mr Higgins his personal mobile number after Mr Lacey added him on Facebook. Mr Higgins submitted from that time, they talked at length via mobile telephone and over the Xbox gaming platform. Mr Higgins submitted he would also send Mr Lacey photos via text message.[23]

[30] Mr Lacey strongly denied having a personal friendship with Mr Higgins.[24] Mr Lacey submitted any interaction with Mr Higgins always occurred within a professional context, and denied contacting Mr Lacey on a personal level through Facebook, or on any online video game medium.[25] Mr Lacey submitted he could not recall the precise reason Mr Higgins gave him his phone number, but was confident it would have been for work purposes.

[31] Mr Lacey said in his statement that he rarely interacted with the bakery team members on a 'personal' or social level. Mr Lacey stated he "rarely, if ever, attended social functions with colleagues or functions organised by Coles."[26] Mr Lacey stated he was connected on Facebook with a number of team members, who he would occasionally 'tag' in images intended to be jokes in relation to baking work.[27]

[32] In his oral evidence, Mr Lacey said there had been some occasions where he had gone to the movies with staff members or to dinner.[28] Under cross examination, Mr Lacey denied having any personal relationship with staff members, saying his colleagues were acquaintances rather than friends.[29]

[33] After reviewing the evidence, I am not satisfied that Mr Lacey did not have relationships with other staff members that were personal on some level. I am not inclined to accept that Mr Lacey would go to the movies with, or go out for dinner with, people from work outside of work hours if they were acquaintances only. I am also of the view that 'tagging' people in jokes or memes on Facebook would indicate some personal relationship existed between Mr Lacey and other staff members.

[34] It is therefore relevant to determine whether a personal relationship or friendship existed between Mr Higgins and Mr Lacey for the purpose of determining whether Mr Higgins breached the Code of Conduct.

[35] There is conflicting evidence on whether it was Mr Higgins who added Mr Lacey on Facebook, or whether it was the other way around. It is not in dispute that Mr Higgins and Mr Lacey were in fact 'friends' on Facebook, meaning at some point one would needed to have 'accepted' the request of the other. Despite Mr Lacey asserting that he was friends with Mr Higgins "through work"[30] Mr Lacey did engage in conduct with staff on Facebook that was not necessarily work-related. Facebook is also a social network, used predominately for social purposes. It is not entirely unreasonable for Mr Higgins to have believed that he and Mr Lacey had a personal relationship on some level, since they were connected on Facebook.

[36] I am inclined to prefer the evidence of Mr Higgins that he and Mr Lacey were connected on Xbox. Mr Higgins gives specific recollections of occasions, although not regular, where he and Mr Lacey would interact through the game.[31] For reasons explained below at paragraphs [43] and [48], I am of the view the more likely scenario is that they were friends on Xbox and Mr Lacey is attempting to distance himself from the relationship.

[37] Overall I accept that a personal relationship existed between Mr Higgins and Mr Lacey. However, the existence of a personal friendship does not necessarily mean the conduct of Mr Higgins on 5 September was "consensual, welcome or reciprocated." Mr Higgins submitted that he often sent messages of this nature to his friends, as this was the norm.[32] This does not mean this behaviour is necessarily acceptable. It is necessary to further examine the history and nature of Mr Higgins' personal relationship with Mr Lacey.

[38] Mr Higgins submitted that after he sent the first text message containing an explicit image on 5 September to Mr Lacey, Mr Lacey responded with "great dick pic." Mr Higgins submitted that this message led him to believe that Mr Lacey found the image funny, and encouraged him to send the further two messages.

[39] Mr Lacey denied in his statement that he found the first image funny. Mr Lacey submitted in his statement that he was "shocked" by the image and was offended by the explicit nature of the content. Mr Lacey submitted that he was unsure of how to respond to the message, and did not want to encourage Mr Higgins to send further messages, however he had witnessed Mr Higgins' short temper and did not want to enter into a dispute with him over the phone. Mr Lacey submitted in his statement that the reason for such a response was to "appease" Mr Higgins and to try and end the conversation without any conflict.

[40] Under cross examination, Mr Lacey conceded at one point that he did in fact find the first image funny.[33] However, Mr Lacey appeared to give conflicting evidence at a later stage that he did not find the first image funny.[34]

[41] Mr Lacey gave oral evidence that the reason he replied with "great dick pic" was:

"Because when that first hit me it was the first thing I instantly went "Wow".[35]

And your instant reaction was "Great" - - -?---To be honest yes, it was, "Great dick pic", I didn't take time to think, look at it, I just texted away."[36]

[42] Mr Lacey's oral evidence contradicts his statement. His statement suggests that his response "great dick pic" was carefully thought out, so as not to enter into a dispute with Mr Higgins. However, his oral evidence suggests he "did not take time to think." Mr Lacey did not provide an explanation as to why he changed his position throughout cross examination.

[43] I am not inclined to accept the explanations provided by Mr Lacey as to why he responded to the first text message in the way that he did. I am of the view that the more likely scenario is that Mr Lacey did find the first picture funny, and is attempting to make excuses and distance himself from the situation. If Mr Lacey did consider the first image to be inappropriate, there is no reason why he could not have responded in the way that he responded to the following messages, i.e. "no more inappropriate texts Jay."

[44] Mr Higgins submitted that there had been an occasion in October 2015 where he sent a text message to Mr Lacey with in image of a naked man wearing a gold watch ('the gold watch messages'). In his statement, Mr Lacey stated that upon receiving this message:

"I was shocked and confused by this message. I wanted to end the communication as quickly as possible and tried to defuse the conversation by responding "that's a big gold watch." I had only started at the Toowong Store recently and did not want to create conflict with an employee that I was already having difficulty managing."[37]

[45] Mr Lacey denies showing this message to anyone else.[38]

[46] However, under cross examination Mr Lacey conceded that he saw the funny side of the gold watch message.[39] Mr Lacey agreed that it was "possible" that his response may have led Mr Higgins to believe Mr Lacey got the joke[40] and that he accepted the message.[41] Mr Lacey also agreed that his response to the gold watch message did not suggest he was offended by the message.[42]

[47] Again there are discrepancies between the evidence provided by Mr Lacey in his statement and his oral evidence. Again, Mr Lacey did not provide an explanation as to why he changed his position throughout cross examination.

[48] I am not inclined to accept the evidence from Mr Lacey that he was offended by the gold watch message. I am of the view the more likely scenario is that he did find the image funny at the time, and is again attempting to distance himself from the conduct.

[49] In my view, Mr Lacey has not proven himself to be a credible witness in this matter, and has likely given a version of events that paints himself in the best light.

[50] After weighing the evidence, I am of the view that Mr Lacey did accept the first text message sent by Mr Higgins on 5 September, and saw the funny side. I accept Mr Higgins' position that Mr Lacey's initial response to the first message, "great dick pic", in combination with the fact he had accepted similar images in the past, i.e. "that's a big gold watch buddy", led him to believe that Mr Lacey saw the funny side of these images and was not offended by them.

[51] Coles submitted that whether Mr Higgins or Mr Lacey found the images funny is not the point. It submitted that the images sent by Mr Higgins to Mr Lacey were plainly inappropriate and offensive, and that its policies cannot be interpreted in the eye of the beholder, but rather require objective standards.[43]

[52] It is relevant to this case that Mr Lacey was not offended by the messages, as it indicates the interaction between himself and Mr Lacey on 5 September, or at least the first message, was "consensual, welcome or reciprocated".

[53] Mr Higgins further submitted that the behaviour he undertook was "accepted as the norm" in his department,[44] in that it was not uncommon for staff in the bakery to engage in discussions of a sexual nature in the workplace.[45]

[54] Mr Higgins submitted that in 2016, a female colleague made reference to wearing a "strap on dildo" and using it on Mr Higgins.[46]

[55] Coles contested Mr Higgins' allegation that his behaviour is accepted as the norm in the department where he worked. Coles submitted that it takes instances of inappropriate behaviour seriously, and when notified of these behaviours, takes immediate and appropriate action.[47]

[56] Mr Lacey strongly denied in his witness statement any suggestion that the Toowong Store had a culture in which it was the 'norm' for team members to send or show explicit or sexually offensive material to each other.[48] Mr Lacey said he was not aware of any circumstance in which a team member at the Toowong Store sent explicit or inappropriate content to another team member other than the circumstance where Mr Higgins sent him the inappropriate text messages on 5 September 2016.[49] Mr Lacey submitted that he had never encountered another instance of team members sending or sharing explicit or inappropriate material during his time in the baking industry.[50]

[57] Mr Scales also gave evidence in his witness statement denying Mr Higgins' suggestion the Toowong Store had such a culture. Mr Scales also said he was also not aware of any circumstances in which team members at the Toowong Store had sent each or shown each other explicit or offensive material.[51]

[58] During cross examination Mr Lacey agreed that staff would send around Facebook memes from time to time though none of them were of a sexual nature or explicit. Mr Lacey also denied there were any discussions generally of a sexual nature.[52]

[59] It was put to Mr Lacey that there had been a previous incident whereby a staff member by the name of Kedi had made a complaint against Mr Higgins. Mr Lacey initially accepted he knew of the complaint but knew nothing about the content of the complaint or what was said.[53] However, Mr Lacey later conceded that he did in fact know about the "fat" comment made by Mr Higgins, but not about the "dildo" comment made by Kedi. Mr Lacey denied the suggestion that he was well aware that this is the common culture in the bakery because those kinds of comments were happening in the bakery and he knew about it.[54]

[60] While I accept Mr Lacey found the gold watch message amusing, there is not sufficient evidence to determine that a culture existed in the Toowong Coles bakery team as a whole whereby it was the 'norm' for for team members to send or show explicit or sexually offensive material to each other.

[61] For reasons explained above, I find that that Mr Lacey's response to the first text message demonstrated he found the message funny, and led Mr Higgins to believe he accepted the joke. After receiving Mr Lacey's response to the second text message indicating he no longer accepted the joke, it was not disputed that Mr Higgins ceased to send any further images.[55] I am not satisfied that Mr Higgins' conduct on 5 September would fall within the definition of sexual harassment in the Equal Opportunity Policy.

[62] However, despite not falling within the definition of sexual harassment, I am of the view that sending images of such an explicit nature, such as the photos sent by Mr Higgins on 5 September, is clearly conduct inconsistent with the requirement of the Code to treat others with dignity, courtesy and respect.

[63] Coles submitted that the Code of Conduct compelled Mr Higgins to treat team members with dignity, courtesy and respect.

[64] Coles submitted that upon being warned by Mr Lacey that the text messages he sent on 5 September were inappropriate images to send to a work colleague, Mr Higgins' response was one of aggression, not contrition.

[65] Coles submitted that Mr Higgins' following message was aggressive and inappropriate in its tone, and included the words "get your s**t together" and "I see this as my first warning...I want to see on Friday a roster so I don't have to communicate with you in any other way...".

[66] Coles submitted that aggressive and inappropriate tone was consistent with (and symptomatic of) Mr Higgins' broader disrespectful conduct toward Mr Lacey.[56]

[67] Mr Higgins submitted that these comments were made in frustration.[57]

[68] I accept Coles' submission that the way in which Mr Higgins responded to Mr Lacey was disrespectful. Regardless of any personal friendship that may have existed between Mr Higgins and Mr Lacey, the discussion was work-related and the way in which Mr Higgins' responded to his manager was inappropriate.

[69] I accept Mr Higgins was in breach of the requirement in the Code to treat others with dignity and respect. However, this in itself does not give rise to a valid reason for dismissal.

Deliberately misleading Coles throughout investigation

[70] Coles submitted that the Code of Conduct compelled Mr Higgins to make truthful statements about his fellow team members.

[71] Coles submitted that throughout the investigation Mr Higgins fabricated the existence of a personal friendship between himself and Mr Lacey in an attempt to suggest that sending content of the type he sent to Mr Lacey on 5 September 2016 was acceptable in the context of their relationship.[58]

[72] Coles submitted that Mr Higgins and Mr Lacey rarely interacted on a personal or social level, and that Mr Lacey never played video games with Mr Higgins or otherwise communicated with him via online video games or media.

[73] I have already made the finding that a personal relationship did exist between Mr Higgins and Mr Lacey. I am of the view that Coles was wrong to simply accept Mr Lacey's word as the truth, without investigating Mr Higgins' alternative version of events. I find this particularly so, considering Mr Lacey has not proven himself to be a credible witness.

[74] I therefore do not accept the Respondent's submission that Mr Higgins' deliberately misled Coles in the investigation, and as such Mr Higgins did not breach his requirement to make truthful statements about fellow team members.

[75] Coles submitted that Mr Higgins' refusal to accept responsibility for his actions throughout the investigation was a factor contributing to the decision to terminate his employment.

[76] Coles submitted that during the course of the investigation, Mr Higgins' responses were "concerning on any reasonable view"[59] and that, rather than accepting responsibility for the messages, Mr Higgins "sought to evade and diminish the seriousness of his conduct at Mr Lacey's expense".[60]

[77] Coles submitted that Mr Higgins' claim that he did not "see this as a breach of company policy as [he] was not at work and it was on [his] private number" is plainly disingenuous, and that the exchange occurred in the context of a work-related discussion about Mr Higgins' need to access sick leave. There was a real and direct connection between the discussion and the workplace, notwithstanding that the discussion occurred outside of the 'bricks and mortar' of the store.

[78] Coles submitted Mr Higgins attempted to 'pass the buck' onto Mr Lacey, and attempted to suggest that by using a non-work-issued telephone to communicate with Mr Higgins, Mr Lacey impliedly consented to receiving explicit photographs via text messages. Coles submitted this response was "absurd."

[79] Coles submitted that Mr Higgins continued to display an "utter lack of insight" into the seriousness of his conduct during the disciplinary process which continued throughout the course of the trial. It submitted Mr Higgins' robust denials during cross examination that his conduct was inappropriate were disingenuous, and his demeanour throughout the hearing demonstrated Mr Higgins' ongoing lack of insight, or a refusal to accept Coles' basic Code requirements.

[80] Mr Higgins made the submission that he "now understands the true impact of his conduct and is entirely unlikely to make the same or similar mistake again."[61]

[81] During cross examination, there appeared to be a repeated theme in some of Mr Higgins' responses, that he held a view about the fact that his mobile phone account was a private account.[62] Mr Higgins seemed to continue to assert that because the messages were sent though his private number on his private phone, his conduct did not amount to a breach of the Code.[63]

[82] Mr Higgins said that the protocol behind calling in sick or getting a hold of someone through work should occur at work and not through your private mobile number.[64]

[83] Coles submitted that its team members in the store do not sit at desks using company-issued computers or phones. [65] It submitted that it has become increasingly common for staff to use their own private mobile phones for work-related purposes. Mr Scales gave evidence that it is not unusual for Coles team members at the Toowong Store to use their personal phones to communicate with their Line Managers, Department Managers or the Store Manager.[66] Mr Lacey also provided evidence that most staff in the bakery team would use their mobile phones to notify him when they were sick.[67]

[84] It is not disputed that the conversation on 5 September between Mr Higgins and Mr Lacey was to do with sick leave. I accept Coles' evidence that the use of work phones is becoming increasingly less common, with staff now using their own private phones for work-related purposes. It is only logical to conclude the conversation between Mr Higgins and Mr Lacey on 5 September was work-related.

[85] I do not accept the suggestion from Mr Higgins that his conduct was acceptable for the sole reason the images were sent from his own private phone. Private phone or not, Mr Higgins sent a series of explicit text messages to his manager during a work-related conversation. Mr Higgins has submitted that he now understands the full extent of his actions. However, his conduct during the Hearing suggests otherwise. In fact, it suggests the contrary.

[86] I am of the view that the way in which Mr Higgins conducted himself throughout the Hearing, and the oral evidence he submitted to the Commission, was concerning. Mr Higgins was asked a number of times during cross examination whether he thought that sending explicit images to his manager could be offensive to some people, or whether it could be considered inappropriate workplace behaviour.[68] Mr Higgins continued to flatly deny that his conduct was in anyway unacceptable:[69]

"MR POLLOCK: The question I asked you, Mr Higgins, is that you would agree with me that sending that type of picture to your manager during a discussion about sick leave, that that could be offensive to some people?---No.

That's your evidence to this Commission that sending that kind of picture, the picture that you see in front of you right there, to your manager during a discussion about sick leave, you're saying that that is not capable of being offensive?---No."

And you agree with me that that second picture message sent to your manager in the context of a discussion about sick leave might be offensive to some people?---No.

And you would agree with me that that picture also falls within the definition of harassment set out in that equal opportunity policy that I took you through earlier?---I have never seen a picture like that representing that as harassment or a guideline for harassment on any of the other Coles documents.

To be clear, your evidence is that you don't consider either of those images to be inappropriate workplace behaviour?---No.

And you don't consider that to have been a breach of Coles' code of conduct?---No, not using my private phone."

[87] Mr Higgins' demeanour throughout the course of his evidence was argumentative and he did not appear to accept any responsibility for his conduct and was resistant to addressing the questions put to him. It should be noted that in the course of his being subjected to cross examination, I had to ask Mr Higgins no less than five times to stop interrupting Mr Pollock during his cross examination.[70]

[88] Mr Higgins' behaviour throughout the Hearing is consistent with Coles' submission that Mr Higgins' was argumentative throughout the investigation and that he failed to accept responsibility for his actions when responding to the allegations. I accept this submission.

[89] Coles submitted its approach to Mr Higgins was "fair but firm".[71] It submitted it is a very large employer with a significant proportion of its 100,000-strong workforce under the age of 18, and as such, it has no feasible mechanism to 'police' the transfer of explicit images between team members or from team members to customers, before such transfers occur. Coles submitted that instead it relies upon clearly communicated behavioural expectations, and rigorous enforcement of those expectations in the event of a contravention, in order to properly manage its obligations to team members under workplace health and safety legislation.

[90] While there are mitigating factors to Mr Higgins' misconduct, it was of such a nature that Mr Higgins ought to have accepted at least some responsibility for his actions. The fact that Mr Higgins refused to acknowledge that this conduct could ever be inappropriate if sent from a private mobile phone, leads me to accept Coles' submission that it cannot reasonably hold confidence in Mr Higgins' ability to comply with its core values. I am satisfied Mr Higgin's misconduct was serious.

[91] I accept Coles' submission that the totality of Mr Higgins' misconduct constituted a valid reason for dismissal.

[92] Mr Higgins submitted that should the Commission determine his conduct did amount to a valid reason for dismissal, Mr Higgins was not afforded procedural fairness, the dismissal was disproportionate to the conduct in all of the circumstances and the dismissal was harsh, unjust and unreasonable and therefore unfair.[72]

[93] Mr Higgins accepted he was suspended on pay pending an investigation, though submitted that he did not understand it was he himself who was under investigation.[73] He submitted he turned up to work on 9 September 2016 where he was allowed to finish his shift, after which Mr Scales called him and told him he had been suspended on full pay due to an alleged breach of the Code, and that they agreed to meet on 12 September. Mr Higgins submitted that at no time during that call did Mr Scales inform him that it was he who was under investigation.

[94] Coles submitted that Mr Higgins was told in advance of the meeting, and the fact that it related to a breach of the Code. Coles submitted that Mr Higgins gave evidence in his statement sworn in April that on 9 September 2016 Mr Hubby told Mr Higgins he was required to attend a disciplinary meeting on 12 September. It was submitted that Mr Higgins then gave evidence in his affidavit sworn 24 July that he did not know he was the subject of the investigation.

[95] Coles submitted the version of events Mr Higgins gave in April was correct, and the version he gave in July was incorrect. Coles further submitted that the reason why Mr Higgins included this in his July affidavit was because it assisted his case.[74]

[96] Coles submitted further that Mr Higgins' evidence that he was unaware that the investigation concerned allegations about him was "utterly implausible".[75] It submitted that the fact Mr Higgins admitted he knew he was suspended due to a breach of the Code[76] meant that it was "fanciful" to suggest that Mr Higgins would fail to form the view that the allegations were about him in the circumstances.[77]

[97] Whilst under cross examination, Mr Higgins was unable to clearly explain the reason for the discrepancies in his evidence on this issue between his April and July affidavits. It appears as though he attempted to explain this by suggesting that his use of the word "disciplinary" in his April affidavit to describe the 12 September meeting was a mistake. I am not inclined to accept this explanation.

[98] I prefer the view as submitted by Coles that Mr Higgins did understand the investigation was regarding his own conduct. A reasonable person would likely understand that if they were stood down on full pay pending an investigation, that was in relation to a potential breach of the Code, that they would be subject to that investigation. Mr Higgins did not provide any medical evidence to indicate his learning difficulties would affect his ability to understand this.

[99] Mr Higgins submitted that no steps were taken prior to the meeting to put the allegations in writing, explain the nature of the allegations, the seriousness of the allegations or that he could have a support person present. Mr Higgins submitted that had he been made aware of the allegations before the meeting, rather than at the commencement of the meeting, this would have helped him respond regarding the purpose of the investigation.[78]

[100] Coles submitted they were under no obligation to give Mr Higgins advance warning of the allegations. It was submitted that it was sufficient for Coles to notify Mr Higgins of the reasons for his dismissal and to give him an opportunity to respond.

[101] Mr Higgins submitted that at the meeting on 12 September, he was not made aware of specifically what pictures he had sent.[79] He submitted Mr Scales read the allegations to him from Section 2 of the Discussion Record, which only contained a partial record of what was alleged.[80] Mr Higgins submitted he was concerned Mr Scales had not been told the full story, in particular in relation to the messages about the gold watch, and it was clear he was confused about what was being alleged.

[102] Mr Higgins submitted this confusion could have been resolved by showing him the photos, which Coles did not do. He also said he was not taken to the exact sections of the Code that he allegedly breached. He submitted that in all the circumstances, he was not informed in a clear way of what was alleged against him.

[103] Coles submitted Mr Scales described in detail at the start of the meeting the photos Mr Higgins sent on 5 September:

"You were requested by your line manager via a text message to provide a medical certificate for your injured thumb. You responded to this request by sending a picture of a penis and then a picture of a thumb in a bandage next to a penis. You also later sent an additional photo of a penis wrapped in a bike chain. In the text messages you also made a number of inappropriate comments, including get your shit together with the rosters."

[104] In his oral evidence, Mr Higgins refuted that this reading was clear, and continued to deny that he knew at the start of the meeting, and throughout the meeting, which photos and messages were the subject of the allegations.[81]

[105] I do not accept Mr Higgins' submissions that he was denied procedural fairness by not being made aware of the allegations before the meeting. If it can be found that Coles adequately notified Mr Higgins of the reasons for his dismissal during the meeting, then s.387(b) will be satisfied.

[106] The question I then have to answer is whether the fact Mr Scales read the allegations to Mr Higgins without showing him the photos, or taking him to the relevant sections of the Code, is enough to show Mr Higgins was notified of the allegations.

[107] While perhaps ideally Coles could have shown Mr Higgins the photos, I am of the view that the description read out to Mr Higgins by Mr Scales made it clear to which images he referred. Mr Scales described the images in detail: "a picture of a penis, a picture of a thumb in a bandage next to a penis... an additional picture of a penis wrapped in a bike like chain."[82]

[108] I do not accept that Mr Higgins could be confused as to which images Coles referred. The description that was read to him was so clear that it cannot be reasonably argued that Coles' failure to actually show him the images meant that Mr Higgins could not be aware to what images Mr Scales referred.

[109] Further, I do not accept that Mr Higgins thought Mr Scales may have been referring to the "gold watch" images. It is clear that these descriptions do not refer to any image of a naked man wearing a gold watch.

[110] I am satisfied Coles took adequate steps to notify Mr Higgins of the allegations.

[111] Mr Higgins submitted he was not given adequate opportunity to respond to the allegations put to him.

[112] Mr Higgins submitted he was unable to clarify with Mr Scales whether or not the allegations included the 'gold watch' exchange. Mr Higgins submitted this was very important in his mind because it gave contextual background that supported his position that these messages were private between Mr Higgins and Mr Lacey and that Mr Lacey did not find these messages offensive, and that throughout the investigation Mr Higgins was attempting to bring the 'gold watch messages' to the attention of Mr Scales and Ms Brown, the Regional HR Manager for Coles. [83]

[113] Neither Mr Scales nor Ms Brown could remember any reference being made to the 'gold watch' during the course of the meeting on 12 September 2017.[84] Ms Brown gave evidence that had Mr Higgins' mentioned the gold watch, it would have been something that would prompt her to ask further questions.[85]

[114] Ms Brown gave evidence that Mr Higgins continued to assert throughout the meeting that the reason he did not believe the conduct to be inappropriate was because the messages were sent on private phones and had nothing to do with work.

[115] The evidence of Mr Scales and Ms Brown is consistent on this point, in that neither witness remembers Mr Higgins bringing up the 'gold watch messages' during the meeting.

[116] Throughout cross examination, Mr Higgins seemed to continue to suggest that the reason he believed the messages were not inappropriate were because they were on private phones. He did not mention anything about context or about the gold watch to Mr Pollock. This is consistent with Mr Scales' and Ms Brown's recollection of the meeting. It seems Mr Higgins is convinced that because they were private phones, the conduct was not inappropriate. This is the main message his evidence during cross examination suggests he was trying to convey, and is likely therefore the main message he was trying to convey at the meeting itself.

[117] I prefer the evidence of Mr Scales and Ms Brown that Mr Higgins did not mention the gold watch during the meeting.

[118] Mr Higgins submitted he was only given three hours to provide a written response, despite having asked for 24 hours.[86] Mr Higgins submitted this short timeframe hindered his ability to adequately respond due to his learning difficulties.

[119] Mr Higgins stated in his April affidavit that by 3:00pm he had still not been able to write down all of the information that he wished to provide in his response. Coles submitted Mr Higgins contradicted himself in his July affidavit in which he said he went to find Mr Scales when he had finished his response.[87]

[120] Mr Higgins said he was 'finished' at 3:00pm because he knew that was the time by which he had to be finished. He said he had been refused the 24 hours he requested after explaining his learning difficulties

[121] Coles put it to Mr Higgins that the evidence in his April affidavit was incorrect and was put in there to paint a picture that Coles' process was unfair. Mr Higgins denied this.

[122] Mr Higgins has not provided any medical evidence to support his claim that three hours was not enough time for him to respond to the allegations. However, it is not disputed that Mr Higgins suffers from dyslexia, and it is likely that a person with dyslexia would require more time to provide written responses than someone without dyslexia. Mr Higgins notified Coles at the start of the meeting that he suffered from dyslexia and requested extra time. However Coles chose to deny this request.

[123] In my view, Coles should have allowed Mr Higgins the extra time he requested to provide his response. In the circumstances, Mr Higgins' request was not unreasonable and Coles did not really provide sufficient reasons to explain why this request was denied. I do not accept Coles' submission that Mr Higgins demonstrated he had enough time because he approached Mr Scales and Ms Brown with a response he said was 'finished'. I accept Mr Higgins' submission that he said he was 'finished' his response at the time he did because he was aware it was approaching 3:00pm and that was the time at which he needed to be finished.

[124] However, it is necessary to determine whether this failure to allow Mr Higgins more time to respond would have affected the outcome. For reasons explained below, I am of the view that had Mr Higgins been afforded more time to respond to the allegations, this would not have affected Coles' ultimate decision to terminate his employment.

[125] Mr Higgins made the submission that had he been given more time to respond to the allegations, he would have been able to explain the context of the messages by bringing the gold watch messages to the attention of Mr Scales and Ms Brown, which he was unable to do in the short timeframe. I am not convinced this would have been the case.

[126] I have made findings above that I am of the view that throughout the meeting on 12 September, Mr Higgins seemed only to push the argument that he was not at fault, due to the fact the phones used to send the text messages on 5 September were private phones. In fact, it appears as though Mr Higgins continued to hold this view up until and at the time of the Hearing. At no point under cross examination did Mr Higgins attempt to raise the 'gold watch message' exchange to justify his conduct. I am of the view that the more likely scenario had Mr Higgins been afforded 24 hours to respond, is that he would have continued to press that he was not at fault because the messages were on private phones.

[127] Even if Mr Higgins did raise the 'gold watch' exchange in his response if he was afforded more time, I am still not of the view this would have changed the outcome. Ms Stevenson and Ms Brown both gave evidence that had Coles been aware of the 'gold watch messages' at the time of the investigation, this would not have changed Coles' decision to terminate Mr Higgins. Both gave evidence that this may have meant that Coles may have taken steps to discipline Mr Lacey, but it would not have mitigated Mr Higgins' conduct and his employment would still have been terminated.

[128] Despite there being some deficiencies in the conduct of the investigation, I find that overall the process was not so procedurally flawed as to have caused any significant level of prejudice to Mr Higgins.

[129] There was no unreasonable refusal by Coles to allow Mr Higgins to have a support person present to assist in any discussions related to the dismissal. Coles is a very large employer with dedicated human resource management specialists and therefore would be expected to have the capacity to follow proper procedures in conducting disciplinary matters.

[130] Section 387(h) requires the Commission to take into account any other factors that may be relevant in determining whether the dismissal was unfair.

Differential treatment compared to that given to other employees

[131] Coles submitted that Ms Stevenson's evidence concerning previous cases of team members sending explicit images to others, shows that it is "unarguable that Mr Higgins was treated anything other than consistently with those previous cases."[88] The evidence supports the conclusion that Coles endeavours to apply a consistent approach on such matters.

The impact of the dismissal on the employee's personal or economic situation

[132] Mr Higgins submitted he has struggled to find alternative employment due to the fact private bakers are often required to be familiar with numbers which he finds difficult with his disabilities. Mr Higgins gave evidence that private bakeries often want staff to start straight away without training which would be an issue for him and his learning difficulties.[89]

[133] Coles submitted that the reason Mr Higgins was struggling to find alternative employment was because Mr Higgins was telling prospective employers he was hoping to regain his job at Coles. Coles gave evidence from Mr Scales and Mr Lacey[90] that Mr Higgins would be qualified for a number of bakery positions and would not find it difficult securing alternative employment.

[134] Mr Higgins gave evidence in his July affidavit that he had approached several bakeries. Mr Higgins gave evidence he commenced a trial with a bakery in Kenmore village where he received positive feedback. Mr Higgins said he struggled because of his lack of experience and knowledge with the recipes. Mr Higgins told the bakery he was hoping to get his job back at Coles and on that basis he was not offered the job.[91] Mr Higgins submitted he approached another bakery who said they had no positions available at that time.

[135] It appears as though Mr Higgins has provided evidence that he has so far only approached two bakeries to seek alternative employment. At the first bakery Mr Higgins said he struggled due to lack of experience with the recipes but did not mention struggling with the numbers. He received good feedback and may well have been given the position had he not told them he was hoping to restart his employment with Coles. The second bakery did not have any positions available, and so he did not experience what it was like working there.

[136] Mr Higgins seems to suggest his learning difficulties would stop him from working at another bakery, but has not provided specific evidence to support this. It is possible the main contributing factor to the reason Mr Higgins has not sought alternative employment is because he has not been proactively looking, perhaps in the hope he will be reinstated by Coles.

[137] I have taken into account all of the matters that I am required to in accordance with s.387. After weighing all the evidence and for reasons set out above, I have concluded that Mr Higgins' dismissal was not harsh, unjust or unreasonable. On that basis the application is dismissed.

Ms K Fredericks of Anderson Fredericks Turner for the Applicant

Mr A Pollock of Counsel instructed by Herbert Smith Freehills for the Respondent

[1] Employer's F3 and Affidavit of Jay Higgins dated 4 April 2017.

[7] Jay Higgins v Coles Supermarkets Australia Pty Ltd T/A Coles [2017] FWC 3057.

[8] Affidavit of Jay Higgins dated 4 April 2017.

[9] Statement of Danniel Lacey dated 17 July 2017, attachment DL1.

[10] Affidavit of Jay Higgins dated 4 April 2017.

[14] Respondent's Outline of Submissions - Merits at paragraph 3.

[15] Respondent's Outline of Submissions - Merits at paragraph 21.

[17] Statement of Timothy Scales dated 17 July 2017, attachment TS3.

[23] Affidavit of Jay Higgins dated 4 April 2017 at paragraphs 9-12.

[24] Statement of Danniel Lacey dated 17 July 2017 at paragraph 28.

[37] Statement of Danniel Lacey dated 17 July 2017 at paragraph 37.

[43] Respondent's Outline of Submissions - Merits at paragraph 11.

[45] Affidavit of Jay Higgins dated 24 July 2017.

[48] Statement of Danniel Lacey dated 17 July 2017 at paragraph 17.

[51] Statement of Timothy Scales dated 17 July 2017 at 12.

[56] Respondent's Outline of Submissions - Merits at paragraph 13.

[58] Respondent's Outline of Submissions - Merits at paragraph 18-19.

[61] Outline of Submissions on behalf of the Applicant at paragraph 80(b).

[65] Respondent's Supplementary Outline of Closing Submissions at paragraph 38.

[66] Statement of Timothy Scales dated 17 July 2017 at 14.

[67] Statement of Danniel Lacey dated 17 July 2017 at paragraph 15.

[71] Respondent's Supplementary Outline of Closing Submissions at paragraph 2.

[72] Outline of Submissions on behalf of the Applicant at paragraph 36.

[73] Affidavit of Jay Higgins dated 4 April 2017 at 29; Affidavit of Jay Higgins dated 24 July 2017 at paragraph 28.

[75] Respondent's Supplementary Outline of Closing Submissions at paragraph 20.

[77] Respondent's Supplementary Outline of Closing Submissions at paragraph 20.

[80] Outline of Submissions on behalf of the Applicant at paragraph 44.

[82] Statement of Timothy Scales dated 17 July 2017 attachment TS3.

[84] Transcript PN 1364, 1454, 1827-1828, 2272, 2302-2308, 2538.

[86] Affidavit of Jay Higgins dated 4 April 2017 at paragraphs 36-38.

[88] Respondent's Supplementary Outline of Closing Submissions at paragraph at 36.

[89] Affidavit of Jay Higgins dated 17 July 2017.

[90] Statement of Danniel Lacey dated 17 July 2017 at paragraphs 65-68.

[91] Affidavit of Jay Higgins dated 17 July 2017 at paragraphs 13-14.

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