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[2019] FWC 606
General information, not legal advice.
Fair Work Commission
2019-04-04
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy - alleged breaches of workplace policy - sexual harassment of co-worker through inappropriate text messages - allegations partly substantiated following investigation - valid reasons for dismissal not displaced by other invalid reason - dismissal not harsh, unjust or unreasonable - application dismissed.
[1] Mr Anthony Clarke has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that he was dismissed from his employment with Toll Transport Pty Ltd T/A Toll Transport (Toll) and that his dismissal was harsh, unjust or unreasonable.
[2] There are no jurisdictional issues for me to determine. I am satisfied that Mr Clarke is a person protected from unfair dismissal pursuant to s.382 of the Act. Mr Clarke's application was made within the 21-day statutory time limit.[1]
[3] The only matter that I must determine is whether Mr Clarke's dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act.
[4] Mr Clarke's substantive application was listed for hearing in Brisbane, Queensland on 22 October 2018. Mr Clarke appeared on his own behalf. Ms Fabiana James, Solicitor and Senior Manager, New South Wales appeared for Toll.
[5] The following people appeared and gave evidence at the hearing:
Mr Anthony Clarke;
Mr Stephen Kenny, Group Security Manager, Toll Group Security for Toll; and
Mr James (Jim) Challis, Human Resources Manager, Intermodal and Specialised business unit for Toll.
[6] Written closing submissions were filed by each party after the hearing.
[7] Whilst not all of the submissions and evidence may be referred to in this decision, all of such have been considered.
[8] On allocation of this matter to me, I instructed my Associate to write to the parties to disclose that prior to my appointment to the Fair Work Commission (the Commission) I had worked for approximately nine months as Employee Relations Manager for Toll. The email, sent on 27 September 2018 relevantly provided:
"...The Commissioner wishes to bring the following information to the parties' attention at the earliest opportunity, and does so, noting that the matter has been allocated to the Commissioner today. Prior to the Commissioner's appointment she worked for approximately 9 months in the role of Employee Relations Manager for Toll Transport Pty Ltd; essentially in the role that Ms de Lange Savage performs, although the Commissioner notes she has not ever met Ms de Lange Savage.
The Commissioner advises that she thinks she has met Mr Kenny on one occasion, and has worked with Mr Challis. The Commissioner has no knowledge of having met Mr Torres.
If any party has any issue with the Commissioner's determination of the application, kindly respond by no later than [date]. If an application is made for the Commissioner to recuse herself, it may be necessary for the parties to be heard on such an application and a determination made..."
[9] On 28 September 2018, Mr Clarke wrote to my chambers requesting that I recuse myself from presiding over his application. Through further correspondence on 2 October 2018, Mr Clarke submitted that I should recuse myself from this matter to avoid an apprehension of bias resulting from my previous employment with Toll.
[10] Mr Clarke referred to the High Court of Australia's comments in British American Tobacco Australia Services Limited v Laurie and submitted that the relevant test is:[2]
"[33] In determining whether an apprehension of bias has a reasonable basis, the courts are asked to see themselves as others, not judges or lawyers, would see them. As Laws LJ put it in Sengupta v Holmes:
"it is not enough to show that those in the know would not apprehend any bias."
A standard for apparent bias dependent upon how the matter appeared to judges and lawyers would be difficult to distinguish, in practical effect, from a standard of actual bias."
[34] ... The requisite standard required appearance beyond suspicion of bias. It was emphasised in the observation by Bowen LJ in Leeson v General Council of Medical Education and Registration that:
"judges, like Caesar's wife, should be above suspicion".
[11] Mr Clarke submitted that my former employment was directly relevant to my decision to recuse myself from this matter, in the context of my knowledge of Mr Challis and Mr Kenny. Mr Clarke submitted that any final decision I would make in this matter would inescapably bring a notion that bias, either positive or negative, exists and had affected my decision and would erode the public's perception of and faith in legal processes being undertaken by neutral and unbiased judicial and tribunal members.
[12] Toll did not file any formal submissions regarding Mr Clarke's application that I recuse myself from this matter, however correspondence was received that, "[Toll] has no objection to Commissioner Hunt determining the unfair dismissal application filed by Mr Clarke, and are unaware of any reason as to why Commissioner Hunt should take steps to recuse herself from the same".
[13] A hearing of Mr Clarke's discrete application of apprehended bias was held in Brisbane on 12 October 2018. Mr Clarke appeared on his own behalf. Ms Katrina de Lange Savage, General Manager Employee Relations appeared for Toll.
[14] During the hearing I confirmed to the parties that I had met Mr Kenny on only one occasion in 2015 while in Karawatha, Queensland. I confirmed that I worked from an office nearby to Mr Challis, and spoke to Mr Challis approximately 10 to 12 times over the course of my employment with Toll. I confirmed that I could not recall working on any particular litigated matter with Mr Challis.
[15] The following discussion occurred between myself and Mr Clarke:[3]
Clarke: Sorry, Commissioner, I don't want to inadvertently insult you or for you to take it the wrong way, but my thought was if you had represented management in your years in your SO sort of role or whatever, wouldn't you have leanings to supporting the management's issues over an employee? Wouldn't it be your - don't take this wrong - wouldn't it be your paid job to make sure that the boss won no matter what the cost was?
Commissioner: Mr Clarke, if that were the case then none of the 40-odd or so members that are appointed to the Commission could fairly do their job. It would be an unfair characterisation of any member here that, simply because they were either a union state organiser or they were an in-house person or a lawyer who represented only respondents, that they couldn't fairly do their work, so, yes, my career is out there for the public viewing, it was referenced in my Welcome Speech here at the Commission, I have taken an oath and, from that point on, from when I was appointed in February 2016, that's my job for the next as many years as my appointment is to make sure that I impartially and fairly determine matters, and I take that oath very seriously and I will meet that obligation for the duration of my appointment.
[16] After hearing from each party, I informed the parties that the application to recuse myself was refused, with the reasons for my decision to be given in the substantive decision issued in respect of this matter. My reasons for dismissing Mr Clarke's application are as follows.
[17] The principles for determining apprehended bias were succinctly set out by Asbury DP in Woolston v Uniting Church in Australia Property Trust (Q) T/A Blue Care Bli Bli Aged Care Facility (Woolston)[4]. In Woolston the Deputy President dealt with applications for both apprehension and actual bias, and said as follows:[5]
"[12] As the High Court of Australia put it in Ebner v the Offical Trustee[6] "...bias whether actual or apparent, connotes the absence of impartiality."[7] A claim of actual bias requires proof that the decision maker approached the issues with a closed mind or had prejudged the matter and for reasons of either partiality in favour of a party or some form of prejudice affecting the decision, could not be swayed by the evidence in the case at hand.[8] The test for apprehended bias is whether "a fair minded lay observer might reasonably apprehend that the [decision maker] may not bring an impartial mind to the question the [decision maker] is required to decide".[9]
[13] Actual bias is assessed by reference to conclusions that might reasonably be drawn from evidence about the actual views and behaviour of the decision maker and requires clear and direct evidence that the decision maker was in fact biased. It has been pointed out that in the absence of an admission of guilt or a clear and public statement of bias from the decision maker, actual bias will be difficult to establish.[10] Apprehended bias is assessed objectively by reference to conclusions that may reasonably be drawn about what an observer might conclude about the possible views and behaviour of the decision maker. In relation to apprehended bias, a Court may only need to be satisfied that a fair minded and informed observer might conclude that there was a real possibility that the decision maker was not impartial.[11]
[14] The Decision of Justice Moynihan in Keating v Morris; Leck v Morris[12] is instructive in terms of the authorities considered and the conclusions reached. In that case, his Honour was considering an application that a Commission of Inquiry was tainted by the apprehension of bias and made findings about the conduct of the Commissioner conducting the Inquiry. Those findings included that the Commissioner questioned witnesses rather than allowing Counsel Assisting to do so in accordance with the practice direction; the Commissioner's questions were aggressive, sarcastic and belittling; and that the Commissioner's harsh treatment of some witnesses was in stark contrast with his treatment of other witnesses.[13] His Honour observed in relation to the questions asked by the Commissioner of certain witnesses that they were not: "fairly described as an exploratory or tentative statement of issues with a view to testing their correctness or to give the witnesses an opportunity to respond to a provisional view."[14] It was also found that the Commissioner interfered in the cross-examination in a hostile way and made accusations about the motives of those instructing counsel.[15]
[15] On the basis of those matters, Justice Moynihan concluded in that case that:
"The circumstances established by the accumulated weight of evidence would rise, in the mind of a fair minded and informed member of the community, to a reasonable apprehension of lack of impartiality on the Commissioner's part in dealing with the issues relating to each of the applicants."[16]
[16] His Honour also noted that while many decisions involve allegations of bias against courts, the rules also apply to investigative bodies, but that the application of the rules to such bodies differs from their application to litigation. In this regard, Justice Moynihan noted that a judge makes a decision on the basis of the evidence which the parties to the litigation have thought to be in their best interests to adduce and has no right to travel outside that evidence in an independent search for the truth.[17] His Honour observed that the test for bias "...takes into account the personality and disposition of the investigator, some may be more robust than others."[18] His Honour also observed that the difference between an inquiry and a court does not "dilute or diminish the expectation that a fair and unprejudiced mind will be applied to the resolution of any question."[19]
[17] The Commission is not a court and neither is it an investigative body. However, the Commission is not bound to follow the rules of evidence and can inform itself in any way that it sees fit. The Commission also has broad powers to control its proceedings. The Commission is bound to deal with matters before it in accordance with equity, good conscience and the substantial merits of the case. The Objects of Part 3-2 of the Act state that the procedures and remedies relating to unfair dismissal are intended to ensure that a "fair go all round" is accorded to both the employer and the employee concerned. The Commission is also bound to afford parties natural justice.
[18] The rule against bias has been called one of the twin pillars of natural justice. [20] The other pillar - the hearing rule - requires that: "a decision maker, at least one exercising a public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made".[21] However, as Justice Kirby observed in Allesch v Maunz:[22]
"...it is worth emphasising that the principle just described does not require that the decision maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require."[23]
[19] The Commission is increasingly required to deal with unrepresented parties - both employers and employees - who are very often extremely aggrieved and have a passionate belief in the righteousness of their position, notwithstanding the parameters of the legislative framework in which they seek to articulate their cases. The observation made by Justice Kirby set out above is apposite in the present case [footnotes retained]."
[18] The Full Bench in Woolston v The Uniting Church in Australia Property Trust (Q.) t/a Blue Care Bli Bli Aged Care Facility [2016] FWCFB 278 agreed with the approach taken by the Deputy President and in particular, noted at [10]:[24]
"[10]...In the Australian legal system, any application that a decision-maker, whether a judge of a court or a member of an arbitral or administrative tribunal or a person conducting an inquiry, should recuse himself or herself from hearing and deciding a matter on the ground of actual or apprehended bias is to be made and determined in the first instance by the decision-maker."
[19] At the hearing of this matter, I drew the party's attention to the decision of the Full Bench of the Australian Industrial Relations Commission, the predecessor to this Commission, in Oram v Derby Gem Pty Ltd.[25] I read to the parties extracts from that decision, as follows:
"[107] The test to be applied in Australia in determining whether a judicial officer is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide[26]...
[108] The relevant ground for disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially and without prejudice, rather than that he or she will decide the case adversely to one party. Mere predisposition or inclination for or against a particular argument or conclusion is not sufficient[27] [footnotes retained]."
[20] A fair minded lay observer would note that a Member of the Commission is likely to have a large number of professional acquaintances or contacts from their earlier working life before appointment to the Commission. This should not immediately disqualify the Member from hearing applications made to the Commission simply because of such past acquaintances or contacts.
[21] I consider that a fair minded lay observer would not reasonably apprehend that a Member of this Commission, having previously performed a majority of their professional industrial relations work for 'employees' or 'employers', would be unable to fairly consider an application brought by that group which they had in a past life often argued against.
[22] I do not agree to recuse myself from determining the application on the grounds that I was formerly employed by the Respondent in this matter for a period of nine months, or that I met on a handful of previous occasions witnesses for the Respondent in the course of my previous employment.
[23] In my view, the test for apprehended bias has not been made out and I have determined that it cannot be said that a fair minded lay observer might reasonably apprehend that I might not bring an impartial mind to the application.
[24] I informed Mr Clarke at the hearing on 12 October 2018 that the application to recuse myself from determining the application was refused.
[25] Mr Clarke commenced employment with Toll on 14 August 2005. He was employed full-time as a local PUD (pick-up and delivery) driver, and later, at his request, changed to permanent part-time employment. At the time of the hearing he was 63 years old.
[26] Mr Robert Torres commenced full-time employment with Toll on 3 January 2017 as a forklift driver. At the time of the hearing he was 37 years old. He is from the Philippines, having arrived in Australia when he was six years old. He completed grade 12 of high school, but on his own admission struggles with some English language expressions.
[27] In May 2018, Mr Torres made two hand-written complaints alleging Mr Clarke had sexually harassed him. These complaints were provided to Mr Challis on 22 May 2018 The first complaint letter stated:[28]
"April 27 (Friday) 7:00pm - 7:15pm when I was having dinner in the lunch room next to the drink machine, Tony came next to me and sat next to me while I was having dinner he suddenly started to rub my arms and legs while I was eating in the lunch room, then he took of and went home.
Then May 1 (Tuesday) 7:00pm when I was having dinner in the lunch room, Tony came sat next to me and started to rub my head, arm and back then he walk away.
May 2 (Wednesday) I text Tony and said no more rubbing...but he didn't get the point.
He told me next time I molest you will put my hand on your little balls and squeeze them until you cry...
No molesting not good need to stop about molesting me and touching me or squeezing my bum at work is also not good I'm not a girl I feel unhappy, unwell, sad and I get nightmare and calling me toy boy.
I can't even tell you how scared I have been to even write this letter. After a week of thinking about it and discussing it with my fiancé and brother. I was finally convinced that I needed to say something.
I text Tony telling him how inappropriate his text and touching me.
I've just been so embarred about it and so scared that I'll lose my job. However, I can't stand the thought of looking or talking to this man. I'm so disgusted.
I am writing this letter because Tony needs the proper punishment for sexually harassment.
Thank you for taking the time to address this issue.
[28] The second complaint letter stated:[29]
"I Robert Torres is writing this letter to complain about an unfortunate incident that recently happened to me at work.
I believe I have been sexually harrasement by an employee in the PUD body truck driver.
April 27 (Friday) 7:00pm - 7:15pm when I was having dinner in the lunch room next to the drink machine, Tony came next to me and sat next to me, while I was eating in the lunch room. He suddenly started to rub my arms and legs.
It started on money he lend me and that's when I relise it started to get worse.
I have some of the text I saved but accidentally deleted some because tried to save it along. [sic]"
[29] Mr Peter Lotomau, forklift driver and TWU delegate also completed a hand-written note on 21 May 2018. Mr Lotomau, together with Mr Ian Buckingham, Toll employee and TWU delegate, provided assistance and advice to Mr Torres in this matter. Having reviewed text messages between Mr Torres and Mr Clarke, Mr Lotomau wrote:
"....started out candidly, light hearted joking around, there was an exchange of mob numbers and with the weeks that followed the banter took twist, with regular catch-ups here at work as well there was a mtg at Tony's private residence between the two of them. Bucko scrolled thru Rob's mob reading the countless txts and message between Tony and Rob the language and subjet matter at times of personal and crude tone?? Bucko emphasised that both were not blameless and that they baited and encouraged each other.......
Bucko and Pete discussed with Rob this guys behaviour, unwanted touching and advances not to mention language used in communications verbally or via mob ph was and is absolutely deplorable and unacceptable. 0 tolerance and it needed to cease immediately. Rob was told to sort outstanding debt and to communicate to Tony clearly and direct that he was (Rob) deeply offended and traumatised with physical touching and txt message that it was to cease immediately if not Rob was to report with an official complaint to Toll mgmts.. Rob agreed and its last I heard of the whole matter."
[30] Mr James Miller, PM Manager, alerted more senior management to the complaint, and in an email of 22 May 2018 stated, "I don't know how much of this was back and forth or if Tony was led on or encouraged by Robert but he (Rob) claims to be the victim of sexual harassment..."
[31] On 24 May 2018, Mr Clarke was informed by Mr Challis that a complaint of sexual harassment had been made against him by Mr Torres. Mr Clarke was stood down from his position with pay while an investigation of Mr Torres' complaint was conducted.
[32] On 31 May 2018, Mr Challis and Mr Kenny met with Mr Torres and interviewed him with respect to his complaint against Mr Clarke. Mr Torres was supported by Mr Lotomau. This interview and all other interviews were recorded with the permission of the individuals present, and was transcribed by a third-party transcribing service paid for by Toll.
[33] On 1 June 2018, Mr Clarke was interviewed by Mr Challis and Mr Kenny in relation to Mr Torres' complaint. Mr Clarke remained stood down from his position with pay following the interview.
[34] On 6 June 2018, Mr Challis and Mr Kenny conducted interviews with five other employees of Toll that they considered may be able to provide further information regarding matters raised by Mr Torres and Mr Clarke in their interviews.
[35] On 8 June 2018, Mr Challis and Mr Kenny conducted another interview with Mr Torres and sought his responses to several statements made by Mr Clarke. Mr Miller was also in attendance.
[36] On 2 July 2018, Mr Challis met with Mr Clarke and issued to him a show cause letter (detailed at [56] below) requesting that Mr Clarke provide his written response showing cause as to why his employment should not be terminated. Mr Challis and Mr Clarke agreed that Mr Clarke's written response would be due by 5 July 2018, which Mr Clarke provided on that date.
[37] On 17 July 2018, Mr Challis sent Mr Clark a letter terminating his employment with Toll effective immediately on the grounds that Mr Torres' complaint against him had been substantiated, Mr Clarke had not provided any mitigating circumstances to excuse his behaviour and that Mr Clarke had failed to act with integrity during the investigation, resulting in an irretrievable breakdown of trust in the employment relationship.
Orders to produce transcripts of recorded interviews
[38] At the hearing regarding Mr Clarke's application of apprehended bias on 12 October 2018, Mr Clarke sought the production of transcripts and audio recordings of the interviews conducted by Toll with himself, Mr Torres and the other Toll employees.
[39] On 15 October 2018, I ordered Toll to produce to chambers a transcript and audio recording of Mr Clarke's interview of 1 June 2018, and a transcript only of Mr Torres' interview of 31 May 2018. I allowed Toll an opportunity to propose redactions to be made to the transcript of Mr Torres' interview, redacting matters irrelevant to the issues in this application.
[40] A copy of the transcript of Mr Clark's interview was provided to him on 16 October 2018. Redacted copies of the transcript of Mr Torres' interview of 31 May 2018 and of his interview of 8 June 2018 were provided to Mr Clarke on 17 October 2018.
[41] Mr Clarke's material filed in advance of the hearing consisted of two documents that are an amalgamation of Mr Clarke's statements regarding the events leading to his dismissal and his submissions as to why his dismissal was harsh, unjust or unreasonable. Perhaps as a result of their form, and despite presenting Mr Clarke's evidence in respect of relevant events, Mr Clarke's statements are not entirely clear as to the timing of certain relevant events. Details of any matters described as Mr Clarke's evidence but not appearing within his statements, such as the timing of particular text messages or conversations, relates only to matters that are uncontested between the parties.
[42] Mr Clarke was first advised of Mr Torres' complaint against him on 24 May 2018. His evidence is that at no time throughout the investigation of Mr Torres' complaint and prior to his dismissal from Toll was he provided with a copy of Mr Torres' complaint.
[43] On 1 June 2018 he was summonsed to attend an interview at Toll's Karawatha depot. Mr Clarke's evidence is that at the commencement of the interview, Mr Kenny advised Mr Clarke that he was legally obliged to answer Mr Kenny's questions, which Mr Clarke disagreed with. Mr Clarke recalled that the interview with Mr Challis and Mr Kenny was recorded and lasted for approximately 135 minutes.
[44] In fact the transcript of the interview is as follows:
Mr Kenny: ...do you understand what I intend to discuss with you?
Mr Clarke: No. This is the first time I've been told what's going on.
Mr Clarke: I've been advised of what the actual issue is.
Mr Kenny: Okay. What were you told when you were stood down?
Mr Clarke: Mr Challis said he's got a complaint of sexual harassment. That was it. No more. Nothing else was told.
Mr Clarke: So whatever you are going to tell me is cold news to me. And, I'm not obliged to answer your questions. I may as well save your time. I'm not going to answer them. You put them in writing, and I'm more than happy to respond.
Mr Kenny: The are questions to - to respond. You're obliged to take part in the interview.
Mr Clarke: Yeah. You asked me to be here at a quarter to 1.00, and I'm here at a quarter to 1.00.
Mr Clarke: I'm not obliged to answer your questions though.
Mr Kenny: You are obliged to answer the questions - - -
Mr Kenny: - - - based on you're a Toll employee, and this is a workplace investigation. You're obliged to take part in it.
Mr Clarke: Yeah. Okay. You ask me the questions, I'll answer them. Go on.
Mr Kenny: If you don't - if you don't want to answer them, we can stop now.
[45] Mr Clarke stated that Mr Kenny produced to him approximately 43 pages of printed text messages that had passed between Mr Clarke and Mr Torres. The text messages produced to Mr Clarke on 1 June 2018 are generally referred to in this decision as "the text messages". Mr Kenny advised Mr Clarke that Mr Torres had surrendered his personal mobile phone to Toll and Toll had retrieved the text messages from Mr Torres' phone. Mr Kenny demanded that Mr Clarke provide further information regarding each of his conversations with Mr Torres, dating back several months. Mr Clarke recalled that Mr Kenny:
Put to him that he had stolen ANZAC biscuits and other food stuffs shown in a photograph to Mr Torres;
Asked Mr Clarke why he had sent to Mr Torres several photos, including photos of Mr Clarke holidaying in Cuba, of Mr Clarke's dogs and of a parade of Commonwealth Games medal recipients; and
Asked Mr Clarke about various other personal conversations passing between Mr Clarke and Mr Torres, which Mr Clarke considered to be totally unrelated to Toll.
[46] Several text messages sent by Mr Clarke to Mr Torres are noteworthy, and it is helpful to extract those text messages in full.
[47] On 24 March 2018, the following text messages were sent between Mr Clarke and Mr Torres:
Mr Torres (5:27pm): I want to have a sicky on Thursday bout I might get in trouble
[48] From 10:19am to 10:35am on 28 March 2018, the following text messages were sent between Mr Clarke and Mr Torres:
Mr Torres (10:19am): Do we have a long weekend this week
Off Friday for Good Friday so you go to church n pray
Monday off to pig out n eat Easter eggs but careful tummy not get fat
Mr Clarke (10:24am): You buy old man yummy easter egg?
Mr Torres (10:26am): Then after wash the car make it sexy
Mr Clarke (10:29am): You call him a cunt or something
[49] At 3:34pm on 2 May 2018, Mr Clarke texted Mr Torres:
Mr Clarke (3:34pm): You okay with that? He fwd u his answer? He sympathetic to you. . Hope so
Hope my little mate push really hard of pain you suffer cause of cunts at Toll but not say old man who is mate molest you n hurt your back. ..am very sorry I hurt you.. will be more careful when I molest you next time
[50] From 5:41pm to 7:21pm on 2 May 2018, the following text messages were sent between Mr Clarke and Mr Torres:
Mr Torres (5:42pm): No more rubbing. . Spend to much on therapy, massage and chiropractor that's why no money for bed.
Mr Torres (5:51pm): Carnt afford anymore therapy got no more money. .
Mr Clarke (5:53pm): We gotta work something out my mate
Me be your step dad n we work things out to help my good mate
Mr Torres (7:13pm): That's why I decide to do uber to try to get extra money but my back painful.. How can my step dad help? I still need to save $7000 just for my prospective marriage visa applications form..
Did secret loan to other work mate n not tell wife..money from secret account. .
Listen u dumb cunt cum beautiful son...more money Sat four hr shift then Uber.. you heading for belting from new Dad"
[51] From 10:40am to 12:31pm on 9 May 2018, the following text messages were sent between Mr Clarke and Mr Torres:
Mr Torres (10:42am): Gona check online how much oil, oil filter, spark plug and air filter cost
Mr Torres (12:19pm): How much can you lend me step dad
Mr Torres (12:22pm): I'm going to browns Plains in 10mins to see the doctor there.. We're you now
Mr Clarke (12:29pm): Mate... stay here by seaside till knock off this arvo
Can't use other card or wife find out...secret stuff with toy boy
Mr Clarke (12:31pm): You gotta stop being bitch n tell in advance of secret transactions for beautiful toy boy
[52] From 11:41am to 2:44pm on 12 May 2018, the following text messages were sent between Mr Clarke and Mr Torres:
Went doctors Wednesday and got mouth check and gave me antibiotics and bonjela and referrer me to dentist got check at dentist Thurs and told me I need 2 tooth taken out the bottom back wich I don't have dental cover and he told me it will cost a lot. Stressing cause he told me it needs to be taken out on Saturday Sorry step dad
Mr Torres (11:48am): Cost teeth removal anaesthetic to from $1,500 to $3,000 per tooth
Don't know what to do I don't have that kind of money.
Mr Torres (11:56am): That's why the doctor referral me to get it cheaper but I don't have the money it's stressful
Should find tooth surgeon will be show compassion with cost
Mr Torres (12:52pm): Can step dad lend me and I can repay you
Or ask Dr for offer to pay off n possible Dr charge less
Mr Torres (2:27pm): Yeah I went and ask them already, they carnt help. That's why I ask step step dad for help and how much you can lend step son [EMOJI]
Mr Clarke (2:31pm): Mate...do trust you but too big an ask
Mr Torres (2:39pm): Sorry step dad nevermind thank you
Mr Torres (2:42pm): Not to worry I'll will pay the money I owe you just give me couple weeks. Thank you
[53] From 12:00pm to 8:01pm on 13 May 2018, the following text messages were sent between Mr Clarke and Mr Torres:
Mr Torres (12:00pm): Out off antibiotics and pain killers only eat biscuits and water for breakfast, lunch and dinner until pay day next week. .
Mr Clarke (12:07pm): Good...you get trim sexy tummy on that diet
Mr Torres (12:09pm): Hahaha.. I need real food no diet no money to buy food unless step dad lend me little money to buy food, antibiotics and painkiller for tooth pain.
Mr Torres (12:15pm): My recharge on my phone is low.. [EMOJI]
Mr Torres (12:23pm): I mean I have no more load it's about to expire, I normally recharge $30 every month
Mr Clarke (2:35pm): For fuck sake you little bitch. Stop trying to fleece me...not your milking cow...no moo moo.
Next time I molest you will put my hand on your little balls and squeeze them till you cry...
Mr Torres (3:49pm): No molesting not good need to stop about molesting me
Mr Torres (5:37pm): Also touching me or squeezing my bum at work is also not good I'm not a girl I feel unhappy, sad and I get nightmare and toyboy I don't like it..
[54] It is Mr Clarke's evidence that at the end of the interview, Mr Kenny asked Mr Clarke if he thought that the interview had been fair, to which Mr Clarke states that he positively responded "NO". It is not recorded in the audio file available to all of the parties and the Commission, nor is it in the transcript of the interview. It is Mr Clarke's evidence that this, together with him being 'accused' of stealing ANZAC biscuits, has been doctored from the audio file, further discussed below at [198].
[55] Mr Clarke was handed a show cause letter on 29 June 2018, which was then replaced by a second show cause letter dated 2 July 2018. He considered that Mr Challis had 'had one of his lackeys' approach Mr Clarke's colleagues and attempt to solicit further complaints from them. He also considered that Mr Torres had been approaching colleagues to solicit complaints from them. Relevant to the interviews that Mr Challis and Mr Kenny had with several of Mr Clarke's colleagues. Mr Clarke alleged that they had "...divulged contents of my private phone conversations, deliberately taken out of context and with complete malice, defamed my name. They had stated things that were untrue."[30]
[56] The show cause letter of 2 July 2018 is as follows:[31]
I write to advise that we have completed the preliminary investigation into the complaint surrounding alleged sexual harassment.
As you are aware Mr Torres reported to the business, on 21 May 2018, that you had sexual harassed him in the workplace and were subjecting him to inappropriate text messages.
Whilst the investigation has found that there is enough evidence to determine that the relationship was one of mutual consent, it does not minimise the inappropriateness of such behaviour in or around our workplace with Toll employee's.
It is the belief of Toll that what our employee's do in their private time, which is legal and lawful is of no concern to us as the employer. However, engaging in behaviour that may place Toll into disrepute, adversely affect others or is of an inappropriate or dishonest nature cannot be condoned in an ongoing employment relationship that is required to be based on trust and confidence.
Our investigation has found that your communications and sexual references towards Mr Torres inside and outside of the workplace, especially once he sought to receive monies from you, were not in line with Toll's values or expected ways of behaving. Further to this we are concerned for the ongoing employment relationship as on many occasions your statements and responses during the investigation, when reviewed against the written evidence, were inconsistent and evasive and we were therefore unable to accept your version of events.
For clarity we will, but not limited to, give you two examples of inappropriate statements that were made by you where we were unable to accept your version of events and cause us great concern when considering the trust and confidence required in an ongoing employment relationship:
1. Mr Torres wrote to you regarding a long weekend:
"thu ok, we do a stat dec for you, all legit n legal, don't tell anyone"
2. Mr Torres alleged you touched him inappropriately in the back (and hurting it) and you denied ever touching Mr Torres except for his head/hair.
Whilst we have only provided two examples of your responses that clearly demonstrate you made misleading, dishonest and inappropriate statements, it can be evidenced throughout the investigation that many of your statements to the investigator contradicted the written evidence. In particular, you either denied or stated that you could not recall when questioned about any communications that may have had a negative impact on you during the investigation.
Further to this we are greatly concerned that you deny Mr Torres ever asking you to cease such communications however it was evidenced in writing that he did in fact ask you to cease the comments and behaviours around molesting and calling him 'toy boy'.
The above information and the findings of our investigation lead us to conclude whilst we believe the relationship was mutually consensual it does not preclude our findings that you acted inappropriately as a Toll employee and deliberately provided misleading and dishonest statements.
Toll considers your actions, as outlined above, to be serious instances of unacceptable workplace misconduct , which shows a demonstrated disregard for Toll Policy and Procedure, in particular the Toll Behavioural Expectations Policy and Toll Code of Practice. Toll now requests you show cause as to why your employment should not be terminated.
Toll also wishes to extend you an opportunity to provide any response in writing you wish to make to the above issues by 3.00pm Tuesday, 3 July 2018. If you choose not to, it will be assumed that you have no response. I invite you to attend a meeting with myself at 3:00pm Tuesday, 3 July 2018 at the Karawatha Depot Operations Building [address].
You have a right to be accompanied by a support person at the meeting. If you do wish to be have a support person present, please let us know who will be attending.
Should there be any documents or any other material that you wish the Company to consider before the meeting, can you please arrange for copies to be provided to be by 3.00pm Tuesday, 3 July 2018.
[57] While the show cause letter requested Mr Clarke's response by 3 July 2018, it was agreed between Mr Clarke and Mr Challis that he would be given additional time to provide his written response, until 5 July 2018.
[58] On 5 July 2018, Mr Clarke emailed his written response to the show cause letter to Mr Challis, which stated:[32]
I respond to your Show Cause Letter dated 29 June 2018 and the subsequent meeting of Monday, 2 July 2018 at 11:30am at the Toll Depot [address].
The suggestion that my private texts could bring Toll into disrepute or that I have provided misleading information etc is farcical. There is no legitimate evidence supplied that my employment should be terminated. I am under no obligation to respond to or recall whatever text messages I have sent or received from friends or work colleagues, to suggest otherwise is pure fantasy. Is Mr Challis and Mr Kenny purporting to be the companies moral police, maybe they should be advised of which century we are in. Your initial suggestion to the allegations being very serious to the defaming of me, then to supply a show cause letter which clearly indicates the allegations are mainly false and trivial. You have provided no substantial evidence of any wrong doing on my part. This suggests that you should apologise to me at your first opportunity and advise those who defamed me, a copy of your written apology.
The best description for the contents of your letter could be described as totally pathetic and bordering on theatrical.
A fellow employee sought my assistance in relation to a workplace injury, and having empathy for a fellow colleague who I believed at the time had been treated rather harshly by the Employer, prompted me to provide the assistance that he sought.
On 21 May 2018 that colleague Mr Torres by your advice made some sort of complaint.
The first that I was advised on any complaint was at 9.20 am on Thursday 24 May 2018, whereupon I was advised of the complaint by yourself and also advised that I would forthwith be suspended from duty. At this meeting you uttered that the first you had been advised of these allegations was the day previous, this being Wednesday 23 May 2018, yet at your first opportunity you claimed that these were very serious complaints and you chose to suspend me there and then. These actions indicate either incompetence or blatant malice on your part, or possibly both suggestions.
An experienced professional Human Resource Manager would obtain reasonable evidence before taking the option to suspend an employee. Yet you had not possibly had sufficient time to obtain evidence of such, but at your first opportunity rushed to suspend me then carry out an investigation at a later time. The allegations went from serious to a load of piffle. It is like suggesting a Police Officer rush to arrest a person on the word of a complainant before investigating all aspects of the evidence and evaluating same. You failed on this count, clear signs of malice or incompetence and acting in a manner unbecoming of a HR Manager.
On Friday 1st June 2018 at 12.45 at the Toll Karawatha depot I was interviewed by Mr Kenny and yourself. This interview was allegedly recorded by Mr Kenny.
At the commencement of the interview I advised Mr Kenny that I was not obliged to answer his questions, Mr Kenny instructed me that I WAS obliged to answer his questions. At the end of the interview Mr Kenny asked me if I thought the interview had been conducted 'fairly'. I replied NO.
On the note of Mr Kenny believing that I was obliged to answer his questions, I would submit that clearly Mr Kenny or yourself have any idea of procedural fairness, unless of course you both believe that you operate as a Star Chamber or along the lines of the Queensland Crime and Corruption Commission whereas interviews are secret and all questions are to be answered otherwise a criminal offence may be committed. Clearly you and Mr Kenny are somewhat deluded as to your own authority and it is questionable that Toll Management or Tolls legal representatives would accept this procedure in the first place.
You have raised suggestions in relation to the supply of a statutory declaration to an employee who is unwell and had been treated very harshly by the employer.
I draw your attention to The Australian Fair Pay and Conditions Standard, 254 2 (b)
My responsibilities in the performance of my Justice of the Peace activities are strictly confidential, should you wish to raise any issues in relation to my J.P. duties, then I suggest you raise those issues with the Queensland Justice Department, JP Branch.
Your raising of that same matter is very selective to say the least, and the rest of the conversation is for some unknown reason, missing. This matter has been taken completely out of context. Something that you seem to specialize in for your own ends.
On the subject of the supply of a Statutory Declaration, lets take the opportunity to back track of the real issue of Stat Decs and why you have chosen to raise the matter.
Upon the introduction of Workchoices legislation by the Federal Government, it was made clear by Toll Management at the Eagle Farm depot that Toll would not comply with the legislation in relation to the minimum standard of ten days sick leave or the acceptance of a stat dec in lieu of a medical certificate. The matter of a memorandum attached to all employees pay slips dated 2 December 2009 signed by Mr Andrew Hack, Regional Manager, made it blatantly clear that Toll would not accept a stat dec signed by myself. This ridiculous instruction was later withdrawn by the then General Manager Mr G. Smith who duly apologised to the union delegate. This obviously caused extreme embarrassment to Toll and continued with the personal vendetta raged against my self. The other previous mentioned issue of the standard of ten sick leaves days for employees rather than eight as per the then Federal TWU award, and Tolls absolute refusal to comply with the Workchoices legislation caused me to refer my complaint of this refusal to the then Workplace Ombudsman's office, who upon their quick investigation caused Toll to accept the increased sick leave provision, including a written apology to myself and the guarantee from Toll to provide backdated credits for sick leave to all employees.
I believe you are correct in your suggestion of employees activities in their own time is correct, whatever text messages or phone calls were made or received between myself and Mr Torres and my wife are frankly, none of your business. What recall I have of text messages or phone calls going back many moths to my many work colleagues is also none of your business. (Your ludicrous suggestions as to my memory is pure piffle)
The interview between Mr Kenny, yourself and myself whereas Mr Kenny produced print outs of retrieved text messages from Mr Torres was somewhat theatrical and more relevant to the two old men sitting under a tree discussing an episode from Days of Our Lives or Bold and the Beautiful, more-so a pathetic divulge into the private life of others and none of your business in any form whats so ever. Reminded me of two nobodies going nowhere, of a dullard and a drone attempting to feel important in their pathetic little world. Certainly not professional for people claiming to be experts in human resources.
If Mr Torres believes that he had a complaint then the appropriate forum is by attending a Police Station and making a complaint.
Mr Torres had very good reason to seek my assistance in relation to his workplace injury, after being shunned by his Union delegate and being told he may have to repay his salary when on light duties etc, he had been duly advised by other colleagues to seek my assistance. The Reasons for Decision of 30 November 2010 by Q-Comp in over riding another employees rejection of their injury claim by the Employer (Toll) and the successful appeal run by myself clearly showed that some Toll managers were prepared to be untruthful in their failed attempts to deny an employee injury benefits. Page 9 of the Q Comp decision highlighted the attitude of some Toll managers being deemed responsible for that employees injury, Pages 13,14,15 highlighted the observance by the Adjudicator of Toll management and the acceptance to believe me over certain managers.
The Show Cause notice of 29 June 2018 is clearly a grubby attempt by Mr Challis to get even for his past indiscretions and clearly shows his complete lack of knowledgeable procedural fairness or due process. Mr Challis displays signs of being very selective of text messages and conversations in his submission of allegations in this matter.
The previous failed attempt by Toll to terminate my employment on 9 February 2012 for my refusing to sign a medical indemnity form shows the personal vendettas run over many years, this is again highlighted with this current matter.
The involvement of this allegation by Mr Torres highlights on aggravated issue, his failed attempt to demand money by menaces from me, and he is entitled to air his grievance, in the correct forum which is clearly not within the realms of Toll Transport.
Furthermore, Maybe Mr Challis and Mr Kenny would be well advised to check the meaning of defamation, their conversations clearly stating to other Toll employees that I have molested another employee and therefore suggesting criminal behaviour is very concerning. Is this representing Toll as a company or more importantly, will Toll indemnify the behaviour of Mr Challis and Mr Kenny?
On another note, Toll is obliged to supply a pay slip within 24 hours of an employees pay being received, as of this date I have not been provided with any pay slips for over five weeks. Another example of Toll disregarding its legal obligations. In the meantime I have been bombarded with text messages from a person claiming to be from customer service seeking my date of birth! After being in the employ of Toll for thirteen years, Toll still does not know my date or birth or correct residential address.
[59] On 10 July 2018, Ms Challis sent to Mr Clarke an email regarding Mr Clarke's response to the show cause letter, which stated:
Thank you for providing your recent response to the Show Cause Letter issued to you on 29th July 2018, and for attending a meeting with Toll at the same time.
The purpose of this letter is to inform you that we have now reviewed the content of your letter, and resultantly wish to provide you with a further opportunity to respond to the allegations that were originally put to you in the show cause letter dated 29/06/2018:
In that letter we gave you two examples of inappropriate statements that were made by you where we were unable to accept your version of events and due to the evidence presented led us to believe you were not being honest during the investigation. Your responses to that letter did not mitigate the serious concerns we have that the trust and confidence we need to have in you as an employee and that are central to maintaining an ongoing employment relationship have been ameliorated.
Specifically we require your responses as to why you sought to provide representations that do not align to the written evidence or that of the complainant as per the below:[33]
1. Mr Torres wrote to you regarding a long weekend:
"thu ok, we do a stat dec for you, all legit n legal, don't tell anyone"
2. Mr Torres alleged you touched him inappropriately in the back (and hurting it) and you denied ever touching Mr Torres except for his head/hair.
Toll also seeks to provide you with additional opportunity to respond to the show cause as it was apparent your correspondence dated 5 July 2018, does not address the allegations as raised.
Toll further holds the view that it is also pertinent to indicate to you that we cannot agree with several comments made by you in your recent correspondence. More particularly, we cannot agree that you, as an employee of Toll, are not under any obligation to respond to, or recall text messages that you have received from work colleagues presented to you during an investigation process. Additionally, Toll does not agree that the contents of correspondence transmitted to you was either "...pathetic" or "...theatrical", nor warranted inappropriate personal attacks on other members of Toll. We are concerned about your comments relating to these as we hold the view that the Show Cause Letter contains serious allegations, which (pending your response) could adversely affect your ongoing employment with Toll.
The Show Cause Letter presented to you refers to an investigation which was conducted by Toll after receiving a serious complaint from an employee. The investigation involved alleged conduct which had occurred during, and outside of working hours.
In support to this, during the investigation process you were made aware that Toll had received a workplace complaint about your conduct in the workplace. This conduct was alleged to include the transmission of various text messages, which a work colleague alleged that you have transmitted to him during and outside of working hours. Toll showed you text messages as alleged, and asked you to respond to the same on a confidential basis. You did not at any time provide copies of, or details pertaining to text messages transmitted from your own telephone.
Following the conclusion of the investigation process, Toll provided you with evidence to support the allegation, that when participating in the when participating in the workplace investigation you have been dishonest.
As an employee of Toll you are required to participate in investigations with integrity and co-operate during any workplace investigation processes. As an employee, you also have an obligation to be honest in your dealings with Toll.
Toll denies that you have been provided with insufficient time to respond to the Show Cause Letter, however based on your comments and our concerns that you may have misconstrued the purpose of the letter, we wish to provide you with time to provide an additional response. In this regard we require you to provide any further information by no later than close of business Thursday 12th July 2018. failing which we will make a determination on this matter based on the information we have elicited from you via the investigation process and your response to our show cause letter.
In closing, we strongly deny that at any time, any representation have been made by Toll to suggest that you "...have molested another employee."
The suggestion that Mr Challis and Mr Kenny (Toll Transport) have not made defamatory comments to my colleagues is clearly not correct.
The suggestion that I should supply Toll with my personal mobile phone is not an issue, I am more than happy to provide my mobile phone on the undertaking that Toll
1. Provide a copy of the original complaint from former employee Mr Torres. (complainant)
2. Provide full unedited copies of all transcripts in electronic or written form between myself and all other employees involved including all interviews by Mr Kenny and Mr Challis.
The provision of the above would clear up and put to rest the denial by Toll of their defamation issues.
At this point of time I am aware of more than one colleague who has clearly been advised by Mr Challis and Mr Kenny that I had 'molested' a former employee. As well as direct clear slander to others 'that I groomed him for sex', to the clear language to those interviewed 'did he also molest you' The defaming of me has spread from the confines of the Toll Karawatha depot to Toll IPEC deport at Larapinta to as far as the receiving dock of Bunnings Rothwell. These statements from Mr Challis and Mr Kenny are untrue.
This clear direct slander from Mr Challis and Mr Kenny to other employees is disgraceful conduct for senior management of Toll, in their failed attempt to silence dissent.
Maybe it could be suggested at this point of time that senior Toll management have provided misleading or false information in relation to the defamation issue.
My only option is to now forward a 'Concerns Notice' to Toll.
At this point of time, I have never been provided the opportunity to sight or be supplied a copy of the initial complaint of Mr Torres (the complainant)
The only advice provided by Toll is that they received a complaint. Clearly, for a complaint to be handled in a fair and reasonable manner then normally the accused is in the first instance furnished with a written copy of the allegations. I now ask the question of why after 6 weeks I have not been supplied a copy of the allegations? Another clear example of Tolls failure to comply with procedural fairness.
Further to the complaint, considering the fact that Mr Torres resigned on Thursday 5 July 2018, after he was verbally advised via a telephone call he should resign immediately is somewhat concerning. Considering the fact that at no time did I make any complaint about a colleague checking out my hair cut or seeking money, why then did Mr Torres suddenly resign. Checking ones hair cut or asking for a monetary loan are neither an issue or any business of Toll Transport. Additionally, why was the then complainant stood down some weeks previous to his mysterious sudden resignation?
I have supplied relevant information in relation to this matter, any additional information should be addressed to Mr Torres as unlike Toll Transport, I respect other persons privacy and are unable to discuss or provide information to the health issue that culminated in the asking for a statutory declaration. To the best of my knowledge, and not having the power to of complete memory recall that Toll demands from its employees, do not ever recall the issuance of any statutory declarations to former employee Mr Torres. Is it now the matter that Toll is resorting to conspiracy theories out of desperation.
It is of grave concern of the possibility that an unknown person/s has/have supplied any Statutory Declarations under my registered number as a Justice of the Peace. Any suggestion of this occurrence should be investigated in the first instance.
As suggested in earlier conversation in relation to this matter, if you do have issues with the performance of my duties as a Justice of the Peace, I am more than happy to supply to Toll Transport, the contact name and details of the Queensland Department of Justice, Manager JP Branch, where as any other citizen of Queensland, you are entitled to refer any issues.
I am not aware of any legal 'gag' order obtained by Toll Transport from a competent authority that prevents me or any other employee from discussing contents of the Enterprise Agreement or the Fair Work Act.
Wordings of mentioned text messages, I was unaware that either Mr Challis or Mr Kenny were ignorant of much published events in relation to the current saga involving Cardinal George Pell. It is now apparent that Mr Challis chose to down play my response in relation to the 'church' conversation.
I am more than happy to elaborate on the full meaning of these words purely for their benefit.
Upon walking from the visitors car park in my residential building whereas I has provided car parking for Mr Torres, through the precinct named 'St Stephens Cathedral' (Church) enroute to his legal firm in Creek Street Brisbane City, the issue arose of George Pell and the allegations made against him, in that same conversation I mentioned certain words per say from the book Cardinal by Louise Milligan in relation to molesting persons. I'm sure Mr Challis and Mr Kenny are capable of reading that book and within that book find those exact wordings as per my texts that they retrieved from Mr Torres. At the time of the conversation between Mr Torres and myself, my former colleague laughed at the Church sarcasm and we continued on our way. My understanding was that he was fully aware of the meaning of that conversation and raised no concerns to those references.
There has been no clarification provided of alleged touching of his back, like where when and how this may or may not have happened, but rather that conversation was clearly associated with his back injury at the hands of Tolls negligence and his current injury claim against Toll, a personal joke between Mr Torres and myself, deliberately misconstrued by Mr Challis grasping at straws and in my opinion best described as deliberate misinterpretation.
For the assistance of Mr Challis and his mention of some Church, St Stephens Cathedral is situated between Charlotte Street and Elizabeth Street Brisbane City, being situated between my residence and that of Mr Torres legal firm of 12 Creek Street Brisbane City. Furthermore, none of the above is of any concern or business of Toll. There was no mention of some priest as such.
For Toll to suggest that an employee is obliged to respond to or have instant recall of personal text messages or conversations, shows complete ignorance or stupidity on the person making such a demand. These are bazaar suggestions, which once again causes me to form the opinion that the requests from Toll continue to be theatrical and lacking reasonableness in any form whatsoever. Is Toll as a transport company serious that all employees must respond to demands of personal explanations going back six months as if an employee is under some compulsory obligation to recall same, the provision of a caution before a disciplinary interview is the normal accepted legal practice enforced by the Judiciary and accepted by the legal fraternity in Australia, yet Toll Transport believes that it has special powers to override accepted principles to enforce compulsory answering of questions, as an example of actions bordering on complete ignorance and bully like activities in the extreme. This operational belief by Toll Transport is a very poor reflection on any business that operates in Australia. It is blatantly obvious that there are those within Toll who get some sort of personal thrill trawling through personal messages of others that are frankly, none of their business. I personally wonder about the motivations of those who do such.
The suggestion from Toll Transport that I have been dishonest lacks credibility, the meaning of 'dishonest' from within the Oxford Dictionary means fraudulent or insincere.
I take offense to these suggestions, you have provided no evidence of any fraudulent activities on my part. As per my recorded interview with Mr Kenny and Mr Challis and the opinions expressed by those two individuals, I do not respect the opinions of Mr Challis and for good reason. I am under no obligation to explain my personal text messages or phone conversations from my personal device to some sticky-beak type who gives me the opinion of being narrow minded and living in some bygone era. The opinions of Mr Challis are clearly not from broad minded persons or groups that I mix with, nor would I wish to associate with. It is blatantly obvious that neither Mr Challis or Mr Kenny understand the meaning of the word slander.
Furthermore, my text messages between a former employee as well as phone conversations on my personal devices are of no concern to Toll Transport, a matter which would have remained private had Mr Challis and Mr Kenny not chosen to spread lies to other employees and deliberately defame me with matters which are untrue, for their own ends.
The only persons who have brought discredit to Toll would be unprofessional actions of Mr Kenny and Mr Challis.
As for the suggestion that I should trust Toll with my personal phone, the action above would clearly deter any reasonable minded person to provide any personal information to Toll.
It may be suggested that Toll Transport does not come within the realms of Toll as a business unit in any form whatsoever and would ask, does Toll believe they come as an authority within the powers of the Police Powers and Responsibilities Act 2000 to seek and demand evidence.
There is no substantial evidence of any wrong doing on my part to suggest my employment should be terminated, more so a reliance on gossip innuendo and missing conversations. Additionally you complainant has bolted, stood down after making his unsubstantiated claims and then suddenly resigning after a telephone call from Toll, most unusual to say the least. I await you full copy of the initial complaint and copies of all correspondence both electronic and in paper form as requested above. Additionally request a copy of any Statutory Declaration issued under my name to Mr Torres.
[61] On 17 July 2018, Mr Clarke received an email from Mr Challis attaching a letter terminating Mr Clarke's employment (the Termination Letter), which stated:[36]
I write to formally advise you of our decision and thank you for your responses in relation to the allegations and show cause letters provided to you on 2 July 2018 and 10 July 2018.
Given your responses and the circumstances we have chosen to write to you with the outcomes of our deliberations rather than invite you to attend the workplace as your personal and inappropriate statements towards managers is also concerning and unacceptable.
After careful review and consideration of your responses we have arrived at the reasonable conclusion that you have not provided any mitigating circumstances to excuse your behaviour.
In addition we have also formed the view that you have failed to act with integrity during the investigation into this matter and this has resulted in an irretrievable breakdown in the employment relationship and therefore the trust required for you to maintain ongoing employment with Toll.
Toll deems the combination of your conduct during the investigation of this matter and the unacceptable conduct evidenced in the investigation findings serious enough to warrant the termination of your employment. The purpose of this letter is to confirm that your employment with Toll will be terminated effective immediately with payment in lieu of notice.
You are required to return all company property, including but not limited to access cards, uniforms and keys by close of business Thursday 19 July 2018.
Final payment of any relevant notice, outstanding monies and accrued entitlement will be paid into your nominated bank account, in accordance with your employment conditions.
[62] Mr Clarke stated that on 2 December 2009, Toll had issued a memorandum to employees to the effect that a statutory declaration proving an employee's sickness witnessed by a Justice of the Peace who was also a Toll employee would not be accepted as proof of sickness. It was Mr Clarke's view that the memorandum had clearly been directed at him. The memorandum had later been rescinded, but he concluded, "...the rage against me witnessing a statutory declaration as a JP continued with CHALLIS, as of the show cause letter dated 2 July 2018."[37]
[63] Mr Clarke considered that Mr Challis and Toll were biased against him as a result of Mr Clarke referring Toll to the then Workplace Ombudsman several years ago, in relation to Toll's former personal leave policies.
[64] Mr Clarke also considered that Mr Challis would not ever treat him fairly on account of Mr Clarke successfully assisting a colleague with a worker's compensation claim.
[65] Mr Clarke was shown a copy of the Toll Group Code of Practice and was asked to confirm that he had seen it. He denied that it had been issued to him while employed at Toll.
[66] Mr Clarke stated that it was Mr Torres who had first approached him outside of work. During January 2018, Mr Clarke had agreed for Mr Torres to park his car at Mr Clarke's apartment in Brisbane City so that Mr Torres could attend a union solicitor on Creek Street in relation to a workplace injury that Mr Torres claimed to have sustained.[38]
[67] Mr Clarke walked with Mr Torres from Mr Clarke's apartment on Charlotte Street to the corner of Elizabeth Street and Creek Street, after which Mr Torres continued to 12 Creek Street, located near the corner of Charlotte Street and Creek Street. Mr Clarke guided Mr Torres through the grounds of St Stephen's Cathedral.[39]
[68] While he and Mr Torres walked through the grounds of St Stephen's Cathedral, Mr Torres disclosed to Mr Clarke that he is Catholic, and the two discussed Cardinal George Pell and the charges against him related to sexual assault and abuse. Mr Clarke stated that the context of all of his conversations with Mr Torres from that point in time onwards must be interpreted in the context of his and Mr Torres' discussion regarding Cardinal Pell in January 2018. Mr Clarke stated:[40]
"...he was a Catholic. I'm not a Catholic and I was stirring him up, and because he said, in his mind, George Pell was innocent. And I was saying there's more and more evidence coming that George Pell is alleged to have done these things. So whenever I had a chance I'd say to him, 'More of George Pell. More of George Pell', and that's where that fitted in."
[69] Mr Clarke stated that all references to 'molesting' in his texts to Mr Torres were merely 'tongue in cheek' references to Cardinal Pell. For example, Mr Clarke stated that his text to Mr Torres of 2 May 2018 which included the words, "but not say old man who is mate molest you and hurt your back" was a comparison to allegations against Cardinal Pell and could only be properly interpreted in the context of his and Mr Torres' conversation while walking through St Stephen's Cathedral. Further, Mr Clarke stated that he had discussed with Mr Torres a book that he had read about Cardinal Pell, "Cardinal: The Rise and Fall of George Pell" by Louise Milligan. Mr Clarke stated that his message to Mr Torres of 13 May 2018, "...Next time I molest you will put my hand on your little balls and squeeze them till you cry...", was a partial quote drawn from Milligan's book.
[70] Mr Clarke stated that he and Mr Torres had also discussed Cardinal Pell in phone calls and in-person conversations after January 2018, and that the references to Cardinal Pell in the text messages which may otherwise appear to be disjointed or isolated were merely part of Mr Clarke's and Mr Torres' discussions about Cardinal Pell which had continued since January 2018.[41]
[71] In cross-examination, Ms James drew Mr Clarke to the texts regarding Mr Torres' 'sickie', extracted above at [47]. Ms James put to Mr Clarke that Mr Torres' use of the term 'sickie' implied that he had intended to use a day of sick leave when he was not sick, and that Mr Clarke had asked Mr Torres not to tell anyone that he was going to sign a statutory declaration for Mr Torres when Mr Torres was not in fact sick. Mr Clarke disagreed that the term 'sickie' referred to taking sick leave without being sick.[42] Mr Clarke stated that he had asked Mr Torres not to tell anyone about the statutory declaration because very few people at the Karawatha worksite knew he was a Justice of the Peace and he "...didn't want to be avalanched by people coming up tracking me down, 'Can you sign this? Can you sign that?"[43]
[72] I asked Mr Clarke how he thought Mr Torres could have known on 24 March 2018, which was a Saturday, that he would be so unwell that he would be unable to attend work on Thursday? Mr Clarke stated that it was not unusual for employees to ask for a statutory declaration certifying a day of sick leave in advance so that the employee could organise and attend a medical appointment. Mr Clarke agreed that no indication was given from the text messages alone that Mr Torres had wanted to attend a medical appointment prior to Mr Clarke offering to sign a statutory declaration for him, although Mr Clarke disputed that any conclusion could be fairly made that he had known that Mr Torres intended to take a day of sick leave when he was not sick and had not arranged to attend a medical appointment.[44]
[73] Mr Clarke confirmed that he had never provided a statutory declaration for Mr Torres, including after the text messages of 24 March 2018.[45]
Mr Torres' requests for Mr Clarke not to touch him
[74] Ms James put to Mr Clarke that he had not denied to Mr Challis and Mr Kenny that he had 'squeezed Mr Torres' bum at work' after Mr Torres' text of 13 May 2018 (extracted above at [53]). In cross-examination Mr Clarke denied that he had touched Mr Torres' bum at work, but conceded that he had not expressly denied that to Mr Challis and Mr Kenny on 1 June 2018.[46] Mr Clarke denied that he had 'molest[ed] [Mr Torres] and hurt [his] back' as stated in the text message of 3:34pm on 2 May 2018 (extracted above at [49]). Mr Clarke stated that both of those text messages were sent in the context of Mr Clarke's and Mr Torres' discussions regarding Cardinal Pell.[47]
[75] Ms James referred Mr Clarke to the text messages including references to 'rubbing', starting from 5:41pm on 2 May 2018 (extracted above at [50]), and put to him that Mr Torres had asked Mr Clarke not to touch him by texting 'no more rubbing'. Mr Clarke denied that he had ever 'rubbed' Mr Torres, and stated that references to 'rubbing' in text messages referred to Mr Torres having chiropractic and remedial massage therapy for his back injury, and not to Mr Clarke himself rubbing Mr Torres.[48]
[76] Later in cross-examination, Ms James referred Mr Clarke to the transcript of his interview of 1 June 2018, during which Mr Kenny put to Mr Clarke that he had rubbed Mr Torres on his leg, his arm, his shoulder and his head, that he had pushed Mr Torres in the lower back from behind, once while at work, and once while in Mr Clarke's apartment. Further it was put that he had squeezed Mr Torres' backside. Mr Clarke denied all of those behaviours except for rubbing Mr Torres' head. Mr Clarke stated that Mr Torres had first rubbed Mr Clarke's head while in the lunchroom at the Karawatha site after Mr Clarke had a short haircut. Mr Clarke stated that he had twice similarly rubbed Mr Torres' head after Mr Torres had a short haircut, but only after Mr Torres had rubbed Mr Clarke's head on the first occasion.[49]
[77] Mr Clarke agreed with Ms James that from 31 January 2018 to 27 March 2018, there were no text messages between Mr Clarke and Mr Torres with inappropriate sexual content. Mr Clarke agreed that their text messages during that period could be characterised as banter between two work colleagues.[50]
[78] Ms James took Mr Clarke to several different text messages he sent to Mr Torres, as follows:
Messages from 10:22am to 10:35am on 28 March 2018, ending with "You make car sexy. You get close haircut and make Rob more sexy. Nice and close and send selfie. Maybe shave head, look more sexy like strong man, killer" (above at [48]);
Message of 3:34pm on 2 May 2018 (above at [49]);
Message of 7:21pm on 2 May 2018 (above at [50]);
Messages from 10:40am to 12:31pm on 9 May 2018, ending with "You gotta stop being bitch n tell in advance of secret transactions for beautiful toy boy So fucken secret stuff here" (above at [51]);
Messages from 12:00pm to 2:35pm on 13 May 2018, ending with "For fuck sake you little bitch. Stop trying to fleece me...not your milking cow...no moo moo. Next time I molest you will put my hand on your little balls and squeeze them till you cry..." (above at [53]).
[79] Ms James asked Mr Clarke in respect of each of the above text messages whether he thought that it was appropriate to communicate in that way to a work colleague. Mr Clarke stated that he did not consider any of his text messages to Mr Torres to be inappropriate in the context of his and Mr Torres' relationship, the ordinary manner in which they spoke to each other and in the context of their discussions regarding Cardinal Pell which Mr Clarke alleged had continued since January 2018.
[80] Mr Clarke agreed with Ms James that he had no remorse for the text messages that he had sent to Mr Torres. I noted to Mr Clarke that following his text message to Mr Torres of 2:35pm on 13 May 2018 referring to 'squeezing [Mr Torres'] balls', the relationship between Mr Clarke and Mr Torres appeared to change and ceased to be 'humorous' as characterised by Mr Clarke. I asked Mr Clarke whether he understood that Mr Torres might have taken offence to his text message. Mr Clarke responded that he thought Mr Torres took more offence to Mr Clarke's refusal to lend him money and confirmed his view that Mr Torres' real motivation in complaining about Mr Clarke was because he had refused to lend money to Mr Torres.[51]
Text messages regarding loans and breakdown of relationship
[81] Mr Clarke gave evidence at hearing about the use of the terms 'step-dad' and 'toy boy' within the text messages and Mr Torres' attempts to borrow money from Mr Clarke. Mr Clarke first stated:[52]
"In the beginning when he asked for money I said, "Do you think I'm going to be your step-dad?". I said, "If you want to keep asking for money I'll call you step-dad. So if you don't want to ask for money I won't call you step-dad", and he kept asking for money, so from there it went to the step-dad."
[82] The first appearance of the term 'step-dad' within the text messages was in a message from Mr Clarke to Mr Torres at 7:21pm 2 May 2018. However, Mr Clarke stated that he had first introduced the term into his communication with Mr Torres 'way before May' on an occasion when Mr Torres had asked Mr Clarke for money while at Mr Clarke's apartment, although Mr Clarke did not clearly state when that discussion occurred. Mr Clarke's first explanation of the 'step-dad' term was similar to his explanation of the 'step-dad' term to Mr Challis and Mr Kenny during the interview of 1 June 2018.[53]
[83] Ms James referred Mr Clarke to a statement made by Mr Clarke in his submissions in reply to Toll's submissions, as follows:[54]
"He had requested I loan him money for urgent dental service and money to pay his mobile phone contract. Neither loan was advanced and I personally had no real issue of his asking for money as mentioned above. Called him toy boy each time he made such requests...
He had said he had a serious falling out with his father and was depressed to which I made mention that he should have left home 20 years ago. To console him I jokingly said, 'If you miss your dad you call me your step-dad', to which he laughed and did refer to me in this manner."
[84] Ms James put to Mr Clarke that that explanation of the 'step-dad' term was inconsistent with the explanation Mr Clarke gave to Mr Challis and Mr Kenny. Mr Clarke disagreed, and stated that he had described himself as Mr Torres' step-dad for both reasons.
[85] Mr Clarke also clarified his use of the term 'toy boy', as follows:[55]
"...in the beginning I said, "If you keep asking for money I assume you want to be my step-son". Right, my toy boy. It all went together."
[86] I asked Mr Clarke what he understood the term 'toy boy' to mean and how that term differed from the term 'step-son'. The following discussion occurred between Mr Clarke, Ms James and myself:[56]
Commissioner: ...if he was going to keep on asking for money you suggested that he be your step-son, and then you said, "my toy boy"?
Commissioner: They're different things, aren't they, step-son and toy boy? What does toy boy mean to you?
Mr Clarke: What does toy boy - mainly when an older man has a younger woman, or, no, an older woman has a younger man in their relationship.
Commissioner: If somebody says they're a toy boy...
Commissioner: ...it's relevant to the older person?
Mr Clarke: Yes. Say, for example, you found a man who was 20 years old you could refer to him as toy boy.
Mr Clarke: Yes. So if you found a man who was 20 you'd call him toy boy.
Commissioner: Yes. And might somebody in a homosexual relationship say that as well, if there was a...
Commissioner: ...63 year old man with a younger man say, "This is my toy boy"?
Mr Clarke: No. It's taken - it was all done as a joke.
Commissioner: It's your evidence that you suggested, "I'll call you step-son" and then you said toy boy?
Commissioner: So what does toy boy mean to you relevant to Mr Torres?
Mr Clarke: It was all tongue in cheek. It certainly wasn't meant in a sexual way in any form whatsoever.
Commissioner: He later says, "I don't like you saying that to me"?
Mr Clarke: Yes, because I'd said to him, "If you keep asking for money I'll call you toy boy. If you don't ask for money I won't have to call you toy boy", and he was happy with that. I know it might sound a bit off but that's the way we talked.
Commissioner: So if somebody around your same age asks for money you wouldn't call them toy boy?
Mr Clarke: The same age? No, I'd probably call them something else.
Commissioner: But it's you who agrees that the reference to toy boy is a sexualised term?
Mr Clarke: Yes, in general conversation, yes. But this wasn't general conversation, it was just the way we were talking to each other.
Mr Clarke: Well, he never expressed any concerns about it. I think somewhere there he says, "Haha".
Ms James: On 13 May 2018, 5:37pm he sends you a text saying:
"Also touching me or squeezing my bum at work is also no good. I'm not a girl. I feel unhappy, unwell, sad and I get nightmare and toy boy I don't like."
Mr Clarke: Yes, but that was at the very, very end of our friendship when I said, "Stop trying to fleece me". He'd had no issues with that before until I said, "I'm not giving you any more money", and all of a sudden that came out of the blue.
Commissioner: Did he ever refer to himself as a toy boy?
Mr Clarke: I don't know, I'd have to go through all the phone things.
Commissioner: His evidence in the transcripts is that he didn't understand what toy boy meant at the time?
Mr Clarke: Well, I - whose transcript was that? In his?
Mr Clarke: Well, I find that a bit hard to believe. Well, how could you not in this world if you're 37 years old say you've never heard that before?
Commissioner: That was his evidence to Mr Challis and Mr Kenny, and they agreed with you...
Commissioner: ...that they thought, well, he's not a new migrant?
Commissioner: He appears to have been in Australia since he was six years old?
Commissioner: How does he not know what toy boy means, and they suggested he was not being credible on that issue?
Commissioner: So you thought he understood what it meant?
Mr Clarke: Of course he did. How could you not. You've only got to read some of these - all those Women's Weekly and those things and these conversations come up.
Commissioner: So you say he understood that he was your toy boy?
Mr Clarke: No, no, no, no, he wasn't going to be my toy boy sexually. Just in the laughing and joking every time he wanted money. There is a big difference.
Commissioner: But when I asked you recently if somebody around your own age and you loan them money wouldn't be your toy boy?
Mr Clarke: Well, if someone else was 63 you wouldn't call it - you'd probably call them something according to their age.
Mr Clarke: Bastard or something. "You old bastard", or something.
Commissioner: But, toy boy has connotations, doesn't it?
Commissioner: That it's a younger person in a sexual relationship where the older person has the money?
Commissioner: So that's what you understood it to mean, and you think he understood that in the same way?
Mr Clarke: Of course he did, yes. I couldn't imagine why he wouldn't. The only time he said about toy boy was when I cut off his money.
Commissioner: That's the only time he expressed his concern...
Commissioner: In I think - in whose evidence do they - in Mr Kenny's statement he says toy boy in the text messages is eight occasions. So I assume that might be say seven occasions you've called him toy boy and his one repeat saying, "No, I don't like that".
[87] There is a clear link in Mr Clark's evidence between Mr Torres' multiple requests to borrow money from him, which he alleges are only partly represented in the text messages, and the use of the terms 'step-dad' and 'toy boy' describing Mr Clarke and Mr Torres respectively in the text messages. I asked Mr Clarke about what possible benefit he may have obtained from using the 'step-dad' and 'toy boy' terms:[57]
Commissioner: Why wouldn't you just lend money without all the sexual connotations in the texting?
Mr Clarke: That's how we spoke to each other. I know it might seem odd to you, but that's just how we spoke to each other. That's how we speak to - in the workforce...
Commissioner: Isn't it that the loaning of money comes with some sort of sexual tie, doesn't it?
Mr Clarke: In what - in which way do you mean by that?
Commissioner: That is there benefit to you in you saying these things to him for "Beautiful toy boy. So fucking secret stuff here". Isn't there some titillation there?
Mr Clarke: No, that's the way we spoke to each other. One hundred per cent. It might come as a shock to you but that's the way we talk to each other. We're in a different world.
[88] As with all of the text messages, Mr Clarke stated that he did not consider any of his references to Mr Torres as 'toy boy' or 'step-son' to be inappropriate and he had no remorse in having used those terms.
[89] Mr Clarke confirmed to Ms James in cross-examination that he considered that he had not breached Toll's workplace policies and that he considered that he was allowed to say anything he liked to a work colleague in private communications, as long as he thought the correspondence was acceptable by his own reasoning. Mr Clarke drew a distinction between the hypothetical scenario of similar text messages being sent from a superior to their subordinate, which Mr Clarke considered would be inappropriate. Mr Clarke considered that he had no obligation to explain his personal text messages or phone conversations to Toll, and that they were of no concern to Toll.[58]
[90] It was Mr Clarke's evidence that if the recorded interviews with the other workers was made available, it would demonstrate that "..we all talk to each other in the same manner. Actually you might actually be shocked at the way we do talk, but that's the industry we're in."[59] Toll objected to the transcripts being provided to Mr Clarke on account of defamation proceedings underway, and stated that Mr Challis had made inquiries as to whether or not that kind of language is used in the workplace, and he satisfied himself that it is not.
[91] It was proposed that the Commission be able to consider the transcripts of the interviews. The following conversation occurred:
Commissioner: So, Mr Clarke, the respondent is saying there that they're comfortable for the Commission to read it, and have regard to it, but you not?
Commissioner: Then following today then the respondent can provide that to the Commission and I'll have relevant regard to what was put and answered there.
[92] Having reviewed the transcripts of the interviews with other employees, I am satisfied of the following:
Employee 1: Denied ever heard Mr Clarke use the terms 'toy boy' or bitch or molest. Denied it was a common sort of talk at work and denied people talk to one another in that fashion.
Employee 2: Some employees have nicknames. Employees might pat each other on the head and discuss football. Never any discussion in the workplace about molest or toy boy.
Employee 3: Haven't observed any patting on head or kissing. "Tony is tall." Has never patted me on the head or kissed me on the cheek. Blokes muck around; I give Daryl a cuddle, just mucking around. Never heard Mr Clarke use the terms molest, toy boy, bitch
Employee 4: Sometimes Tony will plant a kiss on his face and I go, "Thanks for that, I needed that today, I'm a bit down", but that's Tony. Denied that Mr Clarke ruffles his hair or rubs his back. Denied the words molest, toy boy or bitch are used in the workplace.
Employee 5: Agrees Mr Clarke plays with his new haircut and plants a kiss on his head. Is very comfortable with this, and has seen him do it to a limited number of people. Has never heard Mr Clarke say that he'll molest anyone. He can't recall if Mr Clarke has called him 'bitch' or 'toy boy', but he may have. He has not observed Mr Clarke touch Mr Torres inappropriately.
[93] The transcript of Employee 5 was not immediately provided by Toll to my chambers. Upon noticing that it was missing, Toll explained that the transcript of Employee 5's interview had not been produced due to administrative error.
Process of investigation and interview of 1 June 2018
[94] Mr Clarke submitted during the hearing that the transcript and audio recording of his interview of 1 June 2018 did not accurately reflect the entire interview. Mr Clarke submitted that:
Mr Kenny's direct allegations that Mr Clarke had stolen ANZAC biscuits and other foodstuffs included in photographs he had texted to Mr Torres had been omitted; and
Mr Clarke's direct response to Mr Kenny that he did not think the interview had been conducted fairly had been omitted.
[95] Mr Clarke maintained at hearing that he was not provided with a copy of Mr Torres' complaint at any time prior to his dismissal. However, he did accept that Mr Challis and Mr Kenny took him through text messages during the interview of 1 June 2018.[60]
[96] During the hearing Ms James directed Mr Clarke to an audio record of Mr Kenny stating to Mr Clarke during the interview of 1 June 2018 words to the effect of, "if you don't want to answer them, we can stop now", in relation to questions to be asked of Mr Clarke. Mr Clarke conceded that Mr Kenny made that statement, and that he consented to proceed with the interview.[61]
[97] Ms James directed Mr Clarke to the end of the audio record of the interview of 1 June 2018. Mr Clarke conceded to Ms James that after Mr Kenny asked him whether he was satisfied with the way the interview had been conducted, he had not positively responded 'No'.[62]
[98] Ms James referred Mr Clarke to his first show cause response of 5 July 2018 and asked him why he had responded in such a manner, when he understood that his employment was at risk? Mr Clarke confirmed that he had suggested that Mr Challis wanted to 'get square' with him after his previous dealings with Mr Clarke. Mr Clarke described a further incident occurring approximately five or six years ago, when he had been made aware that Mr Challis had described him in unfavourable terms which made it clear that Mr Challis was 'going to get even' with Mr Clarke. Mr Clarke stated that there was no doubt in his mind that Toll and Mr Challis were waiting for him to make a mistake and for something they could 'get him on'.[63]
[99] I asked Mr Clarke what he had meant by his statement in his show cause response of 5 July 2018 that Mr Torres had attempted to demand money 'by menaces' from him:
"The involvement of this allegation by Mr Torres highlights on aggravated issue, his failed attempt to demand money by menaces from me, and he is entitled to air his grievance, in the correct forum which is clearly not within the realms of Toll Transport."
[100] Mr Clarke stated that he had not intended by the words 'demand money by menaces' to imply that Mr Torres had attempted to criminally extort money from him, although he conceded that the phrase 'demand money by menaces' could refer to a criminal act of extortion.
[101] Mr Clarke stated that he thought it would have been more appropriate for Mr Torres to refer his complaint to the police, rather than to Toll if he was alleging an assault. Relevant to Toll's investigation of Mr Torres' complaint, and its investigation of the complaint, the following conversation occurred:[64]
Commissioner: Are there any occasions you can imagine where an employer would say that's conduct that is not acceptable in the workplace?
Mr Clarke: Well, I don't have an issue with it. As I've said many times here this morning I don't have an issue with it.
Mr Clarke: And he was happy. It wasn't till the very end on 13 May when I said, "I'm not giving you any more money", that he got aggrieved.
Commissioner: But he was okay with everything up until then, you think?
Mr Clarke: Well, yes. And it wasn't till the day that he wrote then whatever he - I called him a girl or touched him or something, nothing had ever been raised. He was happy. If you read the texts and that, it was, "Haha", and kept contacting me back, forwards and backwards, and even in the workplace he came up and sat next to me until the last day I was suspended, and never said boo. How would you have explained that?
Commissioner: So do you agree that Toll was entitled to investigate the concerns that Mr Torres informed his employer of?
Commissioner: What do you expect they should've done with the text messages? Do you expect they should have just - - -?
Mr Clarke: Yes, exactly. Well, they were private. If he hadn't surrendered his phone you wouldn't have known what I sent to you or her or him or anyone.
[102] Mr Clarke further responded that so long as messages were peer-to-peer, that is then acceptable. He contended that so long as he was comfortable with what was sent, and because it is a private message, it is none of the employer's business.[65]
[103] On 18 October 2018 and prior to the hearing of this matter, I ordered Mr Clarke to produce to the Commission records of any job applications that he made following his dismissal in efforts to mitigate his loss, and his personal bank records showing whether Mr Clarke had received any income from other employment since his dismissal. I directed that Mr Clarke could produce the ordered documents at the commencement of the hearing on 22 October 2018.
[104] On the issue of my order, and at the hearing Mr Clarke objected to the production of his bank records as he doubted their relevance. After discussing with Mr Clarke the matters that I must consider in considering any compensatory remedy that may be ordered were his application accepted, Mr Clarke agreed to provide a copy of his bank records for the relevant period to my chambers only.
[105] On 23 October 2018 Mr Clarke produced his bank records to the Commission, satisfying the Commission that at the date of the hearing Mr Clarke had not received any remuneration from the performance of work.
[106] In his original objection to my order, Mr Clarke stated that he had been unable to look for work for a period of time after his dismissal as he had been injured. Mr Clarke did not produce records of job applications that he made following his dismissal as ordered. At the commencement of the hearing I stated to the parties that Mr Clarke's efforts to mitigate his loss could be dealt with through Mr Clarke's evidence at the hearing and in closing submissions.[66]
[107] Mr Clarke did not give evidence at the hearing relevant to his efforts to mitigate his loss, and Toll did not cross-examine him regarding his efforts to mitigate his loss.
[108] Mr Kenny has been employed by Toll since 23 January 1989. Mr Kenny has at all times in his employment with Toll been employed within its 'Toll Security Group' business unit. He currently holds the position of 'Group Security Manager'.
[109] On 22 May 2018 he met with Mr Challis, who handed to him a statement given by Mr Peter Lotomau, TWU delegate, partly replicated at [29]. He also received Mr Torres' complaint.
[110] Through Toll's IT department, Mr Torres' text messages with Mr Clarke were extracted, amounting to approximately 42 pages. On 30 May 2018, Mr Kenny and Mr Challis discussed the content of the text messages.
[111] On 31 May 2018, the interview with Mr Torres took place, referred to at [32]. Mr Kenny considered that Mr Torres had 'quite a good grasp' of English, although noted that Mr Torres informed him that he did not understand all of the words used by Mr Clarke in the text messages.
[112] On 1 June 2018, the interview with Mr Clarke took place, referred to at [43] - [54]. Mr Clarke advised that he did not require a support person for the interview.
[113] On 6 June 2018 he and Mr Challis interviewed six other Toll employees, following information that had been provided by Mr Clarke during his interview. One further Toll employee was interviewed on 7 June 2018. Audio records of those interviews were taken and professionally transcribed.
[114] On 8 June 2018 he and Mr Challis interviewed Mr Torres a second time, referred to at [35].
[115] Mr Kenny stated that on 13 June 2018, he met with Mr Torres and his support person, Mr Lotomau, together with named Toll managers. Mr Kenny stood Mr Torres down from his employment.
[116] In the weeks following 13 June 2018, Mr Kenny sought legal advice from Ms de Lange Savage regarding Mr Torres and Mr Clarke. Mr Kenny understands that Mr Torres and Mr Clarke were issued with notices to show cause.
[117] Mr Kenny denied that he had put to Mr Clarke that he had stolen ANZAC biscuits or other foodstuffs, either expressly or by implication.[67] Mr Kenny stated that he had asked Mr Clarke where the ANZAC biscuits had come from and whether he had received foodstuffs from any customers. Mr Clarke had replied that the ANZAC biscuits had probably come from his home, and that he had not accepted food from any customers.
[118] Mr Kenny denied that he had demanded Mr Clarke tell him why he had sent certain photographs to Mr Torres. Mr Kenny stated that he had only generally discussed the relevant photos and text messages with Mr Clarke in the process of going through each of the text messages between Mr Clarke and Mr Torres.
[119] During the interview Mr Clarke stated that he considered his relationship with Mr Torres to be 'entertaining and comical'. Mr Clarke stated that he did not consider Mr Torres to be a 'close friend' and instead considered him to be a 'work colleague'. It was Mr Kenny's view that such a statement appeared to be contradicted by the content of the text messages and Mr Clarke's other responses throughout the interview. Mr Kenny states that it was 'obvious' that Mr Clarke and Mr Torres shared a friendship that was more than a work colleague relationship, as Mr Clarke had invited Mr Torres to his home and to use his apartment block's facilities, had offered Mr Torres work and life advice, had lent money to Mr Torres for car repairs and had requested 'selfie' photos from Mr Torres.
[120] Mr Kenny summarised the frequency of different expressions used by Mr Clarke towards Mr Torres in the text messages:
Expressing love towards Mr Torres - 4 occasions
Bitch - 8 occasions
Sexy - 4 occasions
Toy boy - 8 occasions
Sexy toy boy - 1 occasion
Sexy bitch - 1 occasion
Step son - 2 occasions
Mate - 18 occasions
[121] Mr Kenny noted Mr Clarke's statement that expressions of that nature were simply how he and other employees within the Karawatha workplace spoke to each other.
[122] During the hearing, Mr Clarke noted to Mr Kenny that he himself had referred to Mr Torres as 'mate' on six occasions during the two interviews, which Mr Kenny considered to be a reference to Mr Torres as a person, rather than to Mr Torres as a friend. Mr Kenny conceded that Mr Clarke's references to Mr Torres as 'mate' within the text messages were probably not different from the context in which Mr Kenny himself had referred to Mr Torres.[68]
[123] Mr Kenny's evidence is that it was 'obvious' from the text messages that Mr Torres used Mr Clarke's affection for him to his advantage in trying to extract money from Mr Clarke, and that it was not until late into the friendship that Mr Clarke realised that Mr Torres may have been attempting to use him for financial gain. During the hearing of this matter, Mr Kenny stated that he thought, after interviewing Mr Clarke, that Mr Torres, "...was playing [Mr Clarke] off a break to obtain moneys from you" and that Mr Kenny had sought to understand Mr Torres' actions during his second interview on 8 June 2018.[69]
[124] Mr Kenny summarised Mr Torres' complaints of physical assault by Mr Clarke on five occasions as follows:
Two occasions in the Karawatha lunchroom where Mr Clarke had rubbed Mr Torres' arm, leg, back and head. Mr Kenny noted Mr Clarke's statement that both he and Mr Torres had rubbed each other's heads after Mr Torres had cut his hair short;
Two occasions when Mr Clarke had pushed Mr Torres in the back, once near the area of a 'sign-in clock' at the Karawatha site and once at Mr Clarke's home, both of which Mr Clarke denied;
One occasion when Mr Clarke had pinched Mr Torres' backside, which was denied by Mr Clarke.
[125] Mr Kenny noted Mr Clarke's email to Mr Torres of 3:34pm on 2 May 2018, extracted above at [49], in which Mr Clarke referred to molesting Mr Torres and hurting his back, and stated that Mr Clarke considered the text message to be a joke about Mr Torres hurting his back while stacking pallets with bags of cement. Mr Kenny noted that Mr Clarke denied pushing Mr Torres.
[126] It is Mr Kenny's evidence that that he found Mr Clarke to be at times evasive and flippant during the interview of 1 June 2018, often failing to provide full explanations for text messages sent by him to Mr Torres. Mr Clarke often explained the text messages as simply being the way that he and his co-workers spoke to each other, being tongue-in-cheek, or having been taken out of context, although Mr Clarke did not explain how the text messages had been taken out of context.
[127] At the conclusion of the interview with Mr Clarke on 1 June 2018, the following was said:
Mr Kenny: Are you satisfied in the way I've conducted this discussion with you here today?
Mr Clarke: I think your process is - not you. Your thing is very amateurish.
Mr Kenny: So, the question I asked then was, are you satisfied with the way I've conducted this interview with you here today?
[128] Mr Kenny denied that he had in fact or had sought to interrogate Mr Clarke at any time during the 1 June 2018 interview. He denied having made any adjustments or deletions of the audio of the recording of the interview, and stated that when he seeks to have an interview transcribed he goes to the relevant website and downloads the audio on to the website for transcribing.[70]
[129] Mr Kenny stated his belief that the investigation of Mr Torres' complaint followed normal investigation protocols and was carried out diligently and fairly with consideration given to all parties.
[130] Mr Clarke put to Mr Kenny that during Mr Torres' interview of 31 May 2018, Mr Torres had identified three other Toll employees that had been present at the time that Mr Clarke had allegedly touched Mr Torres in the Karawatha lunchroom. Mr Clarke put to Mr Kenny that those three Toll employees had not been interviewed in the investigation of Mr Torres' complaint, and that it should have been obvious for Mr Kenny to interview those employees. Mr Kenny stated that he did not consider interviewing those employees. Mr Kenny said that it was 'possible' that it would have been obvious for those employees to be interviewed to establish objectively whether Mr Clarke had touched or rubbed Mr Torres in the Karawatha lunchroom.[71]
[131] Mr Clarke put to Mr Kenny that he should have checked security cameras present around the 'sign-in clock' at the Karawatha site to confirm Mr Torres' allegation that Mr Clarke had pushed Mr Torres in the back around that area. Mr Kenny confirmed that he did not check any footage from nearby security cameras recorded at the relevant times.[72]
[132] Mr Clarke put to Mr Kenny that he had explained references to 'molesting' appearing in the text messages in the context of his and Mr Torres' walk though St Stephen's Cathedral during January 2018. Mr Clarke referred Mr Kenny to the transcript produced of Mr Torres' interview of 8 June 2018 and put to Mr Kenny that he had asked Mr Torres whether he had ever been to or walked past St John's Cathedral, when he should have asked Mr Torres about St Stephen's Cathedral.
[133] It was noted that it was in fact Mr Challis that had asked Mr Torres if he had walked past St John's Cathedral. Regardless, Mr Kenny recalled that Mr Torres denied that he had walked past any 'big cathedral' or 'big church' or had a discussion about Cardinal Pell at all.[73]
[134] Mr Clarke pointed out that during Mr Torres' first interview with Mr Kenny, he had nominated that he lived at home with his parents at an address in Hillcrest, when in fact he lived in a share house in Algester. Mr Kenny agreed he had challenged Mr Torres on this issue during the interview of 8 June 2018. During cross-examination, Mr Kenny stated that he believed Mr Torres told lies.[74]
[135] Mr Clarke put to Mr Kenny that the several of the other Toll employees that had been interviewed in relation to Mr Torres' complaint had corroborated Mr Clarke's statements regarding the ordinary language and physical contact between Mr Clarke and some of his co-workers. Mr Kenny stated, "I can't recall the language. I do recall the - I recall what you said; the language that you said. I would need to refer to the statements provided by those people, but certainly they corroborated what you had said about hugging and kissing and patting each other."[75]
[136] In answering questions from me, Mr Kenny stated that he didn't have anything to do with the show cause letter or termination letter, and his assistance was during the investigation.
[137] Mr Challis is employed as Human Resources Manager in the Intermodal & Specialised business unit for Toll, and has held that position since 29 March 2010.
[138] Mr Challis stated that he took notice of and received a copy of Mr Torres' complaint and several of the text messages between Mr Clarke and Mr Torres on 22 May 2018 in an email from Mr Scott Watson, Toll Group Karawatha Branch Manager. After receiving Mr Torres' complaint, Mr Challis, Mr Watson and Mr James Miller met with Mr Torres and Mr Lotomau, who provided copies of Mr Torres' handwritten complaint to Mr Challis. Mr Challis noted that Mr Torres' complaint included allegations that Mr Clarke had touched him and had referred to molesting Mr Torres.
[139] Mr Challis stated that he asked Mr Torres if he could have his mobile phone so that the text messages between him and Mr Clarke could be downloaded, to which Mr Torres agreed.
[140] On 24 May 2018 he met with Mr Clarke and advised him of the complaints made against him, and informed him that he would be stood down with pay while the complaints were investigated. Mr Challis stated that he told Mr Clarke that the complaints related to sexual harassment, that Toll would investigate the complaints, that he was to go home and not attend work and that Toll would contact him to advise of the next steps.
[141] On 30 May 2018 he received a copy of the text messages from Toll's IT department.
[142] On 31 May 2018 he and Mr Kenny met Mr Torres and interviewed him in relation to his complaint. Mr Lotomau also attended the meeting as Mr Torres' support person.
[143] Mr Challis stated that at no time during the interview of 1 June 2018 did Mr Kenny demand that Mr Clarke answer questions regarding text messages. Mr Challis understood that Mr Kenny simply asked questions of Mr Clarke and sought his responses regarding the text messages.
[144] Mr Challis stated that upon asking Mr Clarke about his message of 3:34pm on 2 May 2018 (extracted above at [49]), Mr Clarke agreed that he had sent Mr Torres a text about 'molesting' him and gave further information about the context of that text message. With the aid of the produced transcript, Mr Challis recalled that Mr Clarke said:[76]
"That's when he wouldn't pay the money back...the day he came to go to the solicitors, we walked past the cathedral. St Stephen's Cathedral. And, we were talking about Archbishop George Pell. And, in the conversation, he said he thought he was innocent. And...we were talking about things and I said, 'Well there's a good book out. If you want to read it, I'll lend it to you.' And he said he doesn't read books. And then, when he wouldn't pay the money back, I sent him a text from the ABC webpage where George Pell was asking for money..."
[145] The transcript of the interview of 1 June 2018 aligns exactly with the above extract from Mr Challis' statement. However, Mr Challis' statement departs from the transcript and continues to state, "...Robert stated he does not know George Pell, did you walk past a big cathedral Robert stated no he never walked past a big cathedral and had never heard of George Pell.[77]
[146] Mr Challis also recalled Mr Clarke explaining the text message of 3:34pm on 2 May 2018 as referring to an injury sustained by Mr Torres while restacking pallets of cement in the course of his employment. Mr Challis recalled that Mr Clarke denied touching or pushing Mr Torres and said that the text message had been taken out of the context of Mr Clarke's previous jokes with Mr Torres about Cardinal Pell and hurting Mr Torres' back.
[147] Mr Challis recalled that Mr Kenny asked Mr Clarke about the text messages of 12:23pm and 2:35pm on 13 May 2018 and Mr Clarke's statements to Mr Torres in refusing to lend him money (extracted above at [53]). Mr Challis recalled that Mr Clarke stated that his text message was sent in the context of his and Mr Torres' discussions about Cardinal Pell, which has continued since January 2018, and that the phrase 'put my hand on your little balls and squeeze them till you cry' had been drawn from Louise Milligan's book, "Cardinal: The Rise and Fall of George Pell".
[148] Mr Challis recalled that Mr Kenny asked Mr Clarke whether he thought his text messages to Mr Torres contained appropriate communications to a work colleague. Mr Challis recalled that Mr Clarke stated words to the effect of, "This is not at work. This is at home. Right? If I want to speak to him at home, or in the street, or at my place, that's my business. You're not the moral police here. You might think you are but you're not".
[149] Mr Challis recalled that Mr Kenny said to Mr Clarke words to the effect of, "It's inappropriate mate, whether he went along with it or not. There is a code of conduct which you are required to abide by in the workplace and that is not it. And it's not negotiable either Tony...People will behave as per our code of conduct. This is a serious breach of our code of conduct". Mr Challis recalled that Mr Clarke disagreed with Mr Kenny that his conduct towards Mr Challis was a serious breach of Toll's code of conduct.
[150] Mr Challis recalled that Mr Clarke suggested that the way he communicated with Mr Torres was common within his workplace, and he identified five other employees of Toll that he suggested could confirm the nature of the ordinary communications within Mr Clarke's workplace.
[151] Mr Challis stated that Mr Clarke did not positively state to Mr Kenny that he did not agree that the interview of 1 June 2018 had been conducted fairly. Mr Challis' recollection of regarding Mr Kenny's and Mr Clarke's discussion of the fairness of the interview matched the transcript of the interview as set out above at [127].
[152] In response to Mr Clarke's statement that Mr Challis had had 'one of his lackeys' approach Mr Clarke's colleagues to attempt to solicit complaints against him, Mr Challis stated "The only people interviewed during the investigation were all interviewed and recorded and at no point did I have my lackies...approach anybody in relation to the investigation".[78]
[153] Mr Challis stated that on 6 June 2018 he and Mr Kenny conducted interviews with the five Toll employees that Mr Clarke had identified regarding their communications with Mr Clarke and Mr Torres. Mr Challis stated that each of the interviews with those Toll employees were recorded and transcribed. Mr Challis stated that at no time during those interviews did he or Mr Kenny deliberately take anything out of context or defame Mr Clarke.
[154] On 8 June 2018 he and Mr Kenny conducted a second interview with Mr Torres. Mr Challis recalled that during that interview, Mr Torres denied ever walking past a cathedral or a 'big church' with Mr Clarke and stated that he had no recollection of ever discussing Cardinal Pell with Mr Clarke or Mr Clarke offering him a book to read. However, Mr Torres did state during the interview, "...But, we never went past it", impliedly agreeing that Mr Clarke had accompanied him to his solicitor's office on the day in question.
[155] On 2 July 2018, he met with Mr Clarke and provided him with the show cause letter, and agreed to additional time for Mr Clarke to submit his written response.
[156] On 16 July 2018 he discussed with Mr Lombardi the responses to the show cause letter, and after considering Mr Clarke's responses, Mr Challis and Mr Lombardi decided that Mr Clarke's employment should be terminated.
[157] Mr Challis stated that he had formed a view that Mr Clarke had acted without integrity during the investigation, that he had been dishonest and that he had not provided any mitigating circumstances to excuse his behaviour. Mr Challis formed the view that this resulted in an irretrievable breakdown in the employment relationship and the trust required for Mr Clarke to maintain ongoing employment with Toll.
[158] On 17 July 2018 he sent the termination letter (extracted above at [61]) to Mr Clarke, terminating his employment with Toll effective immediately.
[159] Mr Clarke asked Mr Challis why he had put to Mr Torres that he had walked with Mr Clarke through St John's Cathedral precinct, when it had been St Stephen's Cathedral? Mr Challis agreed that it was an error made by him.[79]
[160] When asked why he and Mr Kenny chose not to interview the three people nominated by Mr Torres in the meal room where Mr Clarke was alleged to have inappropriately touched Mr Torres, Mr Challis stated that he was following Mr Kenny as he was the investigator.
[161] Mr Clarke put to Mr Challis that he should have attempted to access camera footage for the times, dates and places within the Karawatha workplace where Mr Torres alleged that Mr Clarke had touched Mr Torres inappropriately. Mr Challis stated that he had made inquiries about accessing camera footage for the time clock area and near to lunch rooms, but had been told that the security cameras did not view or shine on the area referred to by Mr Torres. Mr Challis stated that he had made his inquiries to the person in charge of the Karawatha depot building.[80]
[162] It appears that one of the employees interviewed by Mr Kenny and Mr Challis shared with Mr Clarke what was said during the interview. When cross-examined by Mr Clarke, there was some common understanding between them as to a term used by the employee during his interview. Mr Challis stated that he could not recall if the same employee agreed that he and Mr Clarke referred to each other as 'bitch'.
[163] Ms James asked Mr Challis to clarify the basis on which he had concluded that Mr Clarke had been dishonest during the investigation. Mr Challis confirmed that during the interview of 1 June 2018, Mr Clarke had initially stated that Mr Torres never texted Mr Clarke asking him to stop touching him. Mr Challis considered Mr Clarke's statement to be untruthful in light of Mr Torres' text message of 5:37pm on 13 May 2018 stating, "Also touching me or squeezing my bum at work is also no good. I'm not a girl. I feel unhappy, unwell, sad and I get nightmare and toy boy I don't like."[81]
[164] Relevant to the Toll Code of Practice, I informed Mr Challis that it was Mr Clarke's evidence that he had not ever seen it. Mr Challis said that those kinds of documents are generally left around in the workplace, and parts are also generally toolboxed with employees. Mr Challis said he would not know if Mr Clarke had seen it or not, although his training record had been accessed. I reviewed it during the hearing.
[165] I noted that Mr Clarke had undertaken training regarding the following Toll policies as of 17 June 2014:
Health and Safety Policy
Toll Group's Obligations
Employee Obligations
Mobile Phones/Portable Phones
Visitors
Company Vehicles and Equipment
Confidentiality Policy
Protection of Toll Group Goodwill
Conflicts of Interest Policy
Fraud and Theft
Legal Matters
Group Media Policy
Toll Group Social Media Policy
Drug and Alcohol Policy
Workplace Rehabilitation Policy
Freedom of Association (Union Membership)
Workplace Behaviour Policy
Diversity and Equal Opportunity Policy
Open Door Policy
Toll Group Disclosure Hotline
Employee Grievance Policy
Compliance Policy
Environmental Policy
Chain of Responsibility
Non-Smoking Policy
Disciplinary Action and Dismissal Policy
[166] I inquired whether Mr Clarke would have seen the Toll Code of Practice given it was introduced in around 2014. Mr Challis conceded that perhaps he had not.
[167] In answering questions from me, Mr Challis stated that Mr Clarke's language directed at Mr Challis in the responses to the show cause letter, which contained personal attacks on Mr Challis, did not colour his view of how Mr Clarke should be treated.[82]
[168] I inquired of Mr Challis as to how he dealt with Mr Torres during the two interviews with him. He disagreed that he gave Mr Torres a 'hard time'. I inquired whether he considered Mr Torres was a victim. Mr Challis responded, "I think - no, I don't believe he was a victim in its entirety. I think there was a point in time where it did appear that he was okay with the exchanging of the text messaging and then on 13 May he made it very clear that he no longer wanted to partake in that sort of conversation."
[169] I put the following to Mr Challis:[83]
Commissioner: You thought he was a bit sophisticated in trying to perhaps milk some money out of an older man who was being a bit sexual with him. Is that what you thought?
Commissioner: Were you prepared to dismiss Mr Torres?
[170] I asked Mr Challis to confirm what his views were following Mr Clarke's second response to the show cause letter, and the assertion that his personal communications with Mr Torres were none of Toll's concern. Mr Challis stated, "The George Pell I don't agree with at all, and as far as the text messaging to employees, it was handed to us as part of a complaint, You know, the text messages were made available to us to substantiate somebody's claim. So, you know, in my belief that's when it became part of our business."[84]
[171] I asked Mr Challis to confirm the grounds on which Mr Clarke's employment had been terminated. Mr Challis noted that the termination letter had described the grounds for Mr Clarke's termination as his conduct during the investigation of Mr Torres' complaint and the unacceptable conduct evidenced in the investigation findings. Mr Challis stated that the substantiated unacceptable conduct consisted of Mr Clarke's communications with Mr Torres through the text messages and Mr Clarke's inappropriate touching.
[172] I noted that in Toll's outline of submissions, it was stated:[85]
"The respondent formed the reasonable view that the applicant had; (a) failed to act with integrity during the investigation process, (b) communicated with the complainant in a manner which was offensive and intimidating, and (c) participating in the investigation process in a manner which was aimed at causing offense to managerial employees at Toll."
[173] It appeared to me that there was a divergence in Toll's reasons for dismissal. On the one hand, the termination material to Mr Clarke did not mention any findings relevant to inappropriate touching, but Mr Challis' evidence was that it did form a reason for the dismissal. The following was discussed during the hearing:[86]
Commissioner: So what are the reasons for the dismissal?
Mr Challis: The reasons for the dismissal were the fail to act with integrity during the interview - sorry, the investigation process, unacceptable conduct in relation to the touching of Robert Torres and inappropriate - - -
Commissioner: In relation to the touching of Mr Torres?
Commissioner: So where in your termination letter do you say that?
Commissioner: So tell me what your termination letter says as to the reasons?---(No audible reply.)
Is it the combination of the - you say at the third last paragraph:
Toll deems the combination of your conduct during the investigation of this matter -
Unacceptable conduct evidenced in the investigations findings.
What were the findings? Is that the show cause letter?
Commissioner: What's in the show case letter?---(No audible reply.)
So where do you tell him exactly what you found and what you didn't find?---(No audible reply.)
Mr Challis: Ultimately obviously I deal with a team of people and my manager comes into the equation.
Commissioner: So who makes the decision to terminate?
Mr Challis: Well, in this case I seek advice on it and then ultimately it's I that write the termination letter.
Mr Challis: Because he failed to act with integrity during the investigation and for unacceptable conduct.
Commissioner: That conduct being - did you make findings that he - - -?
Commissioner: Touched Mr Torres in the workplace and outside the workplace inappropriately?
Commissioner: I believe there's some submissions on foot that - I stand to be corrected here, Ms James, but Toll walked away from those findings. So what's your view there, that he was dismissed for the inappropriate physical contact?
Mr Challis: He was dismissed for telling lies, you know, during the investigation.
Commissioner: Was he dismissed for - did you make a finding - - -?
Mr Challis: The inappropriate statements that he made within his - any inappropriate statements that he made as well.
Commissioner: So you say that there's a lack of integrity during the investigation?
Commissioner: Is there a second reason for - you've made findings that there's physical contact with Mr Torres. Does that form part of the decision making?
Mr Challis: Well, we believe he wasn't telling the truth when he was replying to that particular situation.
Commissioner: Did you make findings to the balance of probabilities, not the criminal standard, that Mr Clarke did inappropriately touch Mr Torres?
Commissioner: So that's the second reason for the dismissal?
Commissioner: Is there a third reason relevant to the inappropriate text messages?
Commissioner: Because haven't you at some point said that there's some mutuality?---(No audible reply.)
Can you help me out, Ms James or Ms De Lange Savage, there's some correspondence about there's some mutuality, "we believe that there's some mutual relationship"?
Ms James: Commissioner, I believe in one of the show cause letters a statement was made in there about, you know what employees do in their own times that's legal and lawful. So in the show cause letter dated 29 June 2018 - - -
Commissioner: Yes. Here we go, yes, the third paragraph.
Whilst the investigation has found that there is enough evidence to determine that the relationship was one of mutual consent, it does not minimise the inappropriateness of such behaviour in or around our workplace or with Toll employees.
Mr Challis: Sorry, Commissioner, where are we - - -
it does not minimise the inappropriateness of such behaviour in or around our workplace or with Toll employees
Commissioner: So what did you mean there, Mr Challis?
Mr Challis: That was in relation to where I believed that Robert Torres was a part of the text messaging and was happy for it, so hence why the relationship may have been found - it determined the relationship was of mutual consent for a period of time. However, you know, the behaviour was not something that we would condone in the workplace.
Commissioner: The relationship was one of mutual consent. I mean they're employees working together. Is it that you meant that they were both at fault but it's not until Mr Torres complains that you could know about it and do something about it, and you're going to deal with Torres separately but relevant to Mr Clarke, you find his conduct inappropriate. Is that what you mean?
Commissioner: Right. Despite Mr Clarke's assertions that he can do what he wants in his private time, you say that there's a line that needs to be drawn?
Mr Challis: To treat people with respect in the workplace.
Commissioner: So if it's consensual up to a point what if both parties think it's consensual, it becomes a problem for the employer does it if at some point later somebody say I felt intimidated or the like?
Mr Challis: Which Mr Torres came to us and told us that he was, and he wanted the behaviour to stop.
Commissioner: You do say that you made findings that there was inappropriate physical conduct - contact in the workplace and outside?
Mr Challis: Well, it was my belief there was. I mean I didn't believe the responses that we were getting in relation to the text message that related to the sore back whilst molesting.
Commissioner: You didn't think the sore back was molesting?
Mr Challis: No, no, I didn't think the response we got in relation to that question - - -
Commissioner: So did you form a view that Mr Clarke had rubbed his legs and his head in the workplace?
Commissioner: Did you form a view that he had pushed Mr Torres in the back on the two occasions that Mr Torres alleged?
Mr Challis: I'm not sure whether it was a push, but certainly through the wording on the text messaging which is Mr Clarke's wording, he had in some way hurt his back. You know, using his words he said it was "whilst he was molesting me". Now, I'm not sure what it was - - -
Commissioner: So you took Mr Clarke's text message to be an admission?
Commissioner: Any reason why you didn't put such findings in the letters to Mr Clarke, about the physical conduct - contact?
Commissioner: No reason why that wasn't put in the letters?
Commissioner: Do you agree it formed part of your decision to terminate?
Mr Challis: I agree that, you know, again with the touching, I mean that's my view. I don't know how he touched him but, you know, in relation to that question, asking that question, the response we got was not the truth so he was lying through it.
Commissioner: So how is Mr Clarke to know that when the show cause letter is sent that he also - there's a finding by the respondent that he has inappropriate touched Mr Torres? It's not in your correspondence, you accept that?
Mr Challis: No, there's no finding. The question is put there where we do talk about the comment but no, that finding's not there at all.
Mr Challis: Dated 5 July, this one. It's got that - - -
Mr Challis: It's got the question in there where, you know:
Mr Torres alleged you touched him inappropriately in the back -
Commissioner: I see, you say it's wrapped in the two?
Commissioner: Right, okay, so you say it's - but you agree that it formed a part of your decision to terminate?
Commissioner: I have some submissions from the respondent and I know Mr James wants to deal with this in closing submissions but in - the respondent in its outline of the respondent's submissions says at paragraph 18 that:
The respondent formed the reasonable view that the applicant had; (a) failed to act with integrity during the investigation process,
(b) communicated with the complainant in a manner which was offensive and intimidating, and which had the effect of making the complainant fearful and intimated, and
(c) participating in the investigation process in a manner which was aimed at causing offense to managerial employees at Toll.
Would you say that's a fair account of the reasons for the dismissal?
Commissioner: But you've said also that your understanding was that the - you'd formed a view that Mr Clarke did inappropriate touch Mr Torres?
Commissioner: So interestingly the respondent's written submissions, I'm not sure if you've seen them or not, says it follows:
The respondent did not maintain that allegations associated with the applicant inappropriately touching the complainant were substantiated.
The respondent did not maintain that allegations associated with the applicant inappropriately touching the complainant were substantiated.
That's what I'm told to date. Is that going to change is it, Ms James?
Ms James: Commissioner, I'm in-house counsel for Toll supervised. I'd like to seek - I'd like to speak to Ms Katrina De Lange Savage, who is lead counsel. I need to seek instructions on - - -
Commissioner: All right, well, that's for closing but you need to answer that today. So Mr Challis, you can understand that to date the Commission has before it a submission that part of the reason for the dismissal did not include - well it says here that the respondent found that the touching complaints were not substantiated?
Mr Challis: Yes, and I guess what I was saying was that the question we were asking which related to the touching where he responded to George Pell, I didn't believe that was the truth and that was when we're saying he didn't act with integrity because he was dishonest in his response.
Commissioner: So in saying that you didn't believe him you then believed Mr Torres that he had been touched inappropriately?
Mr Challis: Well, I didn't know whether he had he hadn't. I mean the text message certainly indicates, you know, through his own wording that he hurt Mr Torres' back in some way, and Mr Torres had told us that he had, so - - -
Commissioner: I see. So on the strict text evidence you found that his denial did not match the text evidence?
Commissioner: But you couldn't make a finding of whether or not there had been touching or not?
Commissioner: Right. So you didn't - all right, but in your mind your evidence earlier was that you did think he'd been inappropriately touched - - -?
Mr Challis: Well, I didn't know - sorry, I didn't know but certainly from the impression that I got from the text messaging and through Mr Clarke's own wording, he'd hurt Mr Torres' back in some way.
Commissioner: Right. I'm glad I asked those questions because it's been baffling me since I'd received this file......
[174] Following my questions towards Mr Challis, Ms James confirmed that the Respondent would set out the precise reasons it alleged for which Mr Clarke was dismissed from his employment in the Respondent's closing submissions.
[175] Section 385 of the Act defines "unfair dismissal" and states:
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."
[176] Section 387 of the Act sets out the criteria that must be taken into account when considering whether a dismissal was harsh, unjust or unreasonable, and states:
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."
[177] The type of conduct that may fall within the words "harsh, unjust or unreasonable" was outlined by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:[87]
"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
[178] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter.[88]
[179] As noted above, Mr Clarke filed two documents prior to the hearing that served as his witness statements and outline of submissions. Following the hearing, Mr Clarke filed written closing submissions and further submissions in reply to Toll's closing submissions. Mr Clarke's submissions did not explicitly or individually address each of the criteria set out in s.387 of the Act. I have taken into account that Mr Clarke was self-represented in considering his written submissions.
[180] Mr Clarke's central submission is that Toll overstepped its authority as Mr Clarke's employer by reviewing his text messages with Mr Torres. Mr Clarke submits there is no nexus between Mr Clarke's contact with Mr Torres in a personal capacity through the text messages and their other discussions outside of work and his employment with Toll.
[181] In his original application Mr Clarke stated that he sought reinstatement to his former position of employment with Toll. In his written closing submission, Mr Clarke stated that reinstatement was not sought, and he instead sought compensation for his unfair dismissal.
s.387(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)
[182] Mr Clarke submitted that Mr Torres was a willing participant in the text messages between him and Mr Clarke and willingly engaged with the language used therein at all times prior to 13 May 2018. Mr Clarke submitted that Mr Torres' complaint against Mr Clarke was not genuine, and was made only because Mr Clarke had on 13 May 2018 refused to lend Mr Torres money. Mr Clarke submitted that there is no substantiated evidence that he sexually assaulted Mr Torres. Mr Clarke submitted that Mr Torres continued to associate with him in the workplace, including arranging his dinner break to coincide with Mr Clarke's, until Mr Clarke was stood down on 24 May 2018.[89]
[183] Mr Clarke submitted that his statement to Mr Torres, "...squeeze your little balls..." included in the text message of 2:35pm on 13 May 2018 had been drawn directly from Louise Milligan's book, "Cardinal: The Rise and Fall of George Pell". Mr Clarke maintained his submission that he had discussed Milligan's book with Mr Torres while walking through the grounds of St Stephen's Cathedral in January 2018, and that he and Mr Torres continued to discuss and refer to Cardinal Pell in their conversations after January 2018, including within the text messages.
[184] Mr Clarke submitted that Toll had no legitimate basis to investigate his personal text messages with Mr Torres. Mr Clarke submitted that the text messages had nothing to do with his employment with Toll and stated, relevant to Mr Challis, "...the retrieved text messages were private and never intended for him to pass moral judgements on."[90]
[185] It was submitted that Mr Kenny had failed his role of investigator by not interviewing potential witnesses, and not checking CCTV footage near the sign-in clock.
[186] Mr Clarke submitted that the nature of the language used in the text messages was normal within the group of other Toll employees with which Mr Clarke usually associated. Mr Clarke's submissions in this respect were best summarised by Mr Clarke during cross-examination of Mr Kenny:[91]
Mr Clarke: ...I had made the suggestion to you that the language I used for some, not everyone in the workplace, was normal. Do you accept that point?
Mr Clarke: No, no, I said the workplace that I'm in?
Mr Kenny: And I'm not in that workplace so - Toll would still consider it inappropriate.
[187] As noted above at [80] and [88], Mr Clarke conceded at hearing that he had no remorse regarding his communications with Mr Torres. In response to Toll's closing submissions, Mr Clarke reiterated his view that Mr Challis and Mr Kenny had acted in a 'pathetic and theatrical' manner.[92]
Lack of integrity regarding allegations of sexual assault
[188] Mr Clarke submitted in response to Toll's closing submissions that the allegation that he had 'sexually assaulted' Mr Torres had not been part of Mr Torres' complaint, have never been put to him and was not a valid reason for his dismissal.[93]
[189] In response to Toll's submissions that Mr Clarke had intended to defraud Toll by offering to sign a statutory declaration, Mr Clarke submitted that Toll had invented that reason for his dismissal and it did not actually form part of the reasons for his dismissal. Mr Clarke submitted that had the statutory declaration issue actually formed a reason for Mr Clarke's dismissal, Mr Torres would have been asked about the statutory declaration during his interviews with Mr Challis and Mr Kenny.[94]
[190] In response to Toll's submissions that Mr Clarke would have had a reasonable suspicion that Mr Torres intended to illegitimately use personal leave, Mr Clarke submitted that that argument was a "conspiracy theory by persons lacking intelligence" which "highlights ignorance, stupidity and theatrical obsession by the dullard making the claim without any tangible evidence."[95]
s.387(b) - Whether the person was notified of that reason
[191] Mr Clarke did not dispute that he received a copy of the termination letter on 17 July 2018. He noted that Toll, even upon providing written closing submissions to the Commission was at odds with itself as to the reasons for the dismissal. Where Mr Challis had given evidence that a reason for the dismissal included Mr Challis' findings that Mr Clarke had inappropriately touched Mr Torres, Toll was, in its submissions, seeking to walk away from that.
s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
[192] Mr Clarke submitted that during the investigation on 1 June 2018 he was required to answer questions with the printed emails in front of him. He was asked to recall text messages from five months earlier. He considered it unfair that where he answered through recollection it might not have paired with the text messages sent by him.
s.387(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
[193] Mr Clarke did not submit that Toll unreasonably refused to allow him to have a support person present during his interview of 1 June 2018 or any other discussion relating to his dismissal.
s.387(e) - Was there a warning of unsatisfactory work performance before dismissal
[194] Mr Clarke did not submit that that his dismissal related to unsatisfactory work performance or that he was not appropriately warned about unsatisfactory work performance before his dismissal.
s.387(f) - Whether Toll' size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated resource management specialist impacted on the procedures followed
[195] Mr Clarke did not, in his submissions, specifically address these criteria. However, Mr Clarke set out at length his views that Mr Challis, Mr Kenny and Toll generally had mishandled the investigation of Mr Torres's complaint and had treated Mr Clarke unfairly throughout the investigation, partly as a result of bias against Mr Clarke arising from previous events during the course of his employment.
[196] Mr Clarke submitted that it was 'extraordinary' and 'not believable' for Mr Challis and Mr Kenny to suggest that they were unaware of security camera coverage within the Toll Karawatha depot, particularly for the time clock area, and submitted "...the possibility of employee fraud with time clock activities would be a major consideration of any HR Manager to oversee with absolute zealousness"[96] and "For a senior Toll investigator to suggest that matters of the locations of security cameras in the Karawatha depot were not within his realm and he wasn't sure of camera locations is extraordinary."[97]
[197] Mr Clarke submitted that Mr Challis had failed to handle Mr Torres' complaint fairly. Mr Clarke submitted that a Toll Manager, Mr James Miller, had been nominated as Mr Torres' support person during the interview of 31 May 2018; a process which Mr Clarke ridiculed. Mr Clarke also submitted that during the interview of 31 May 2018 it was acknowledged that photos and emails on Mr Torres' phone had been accessed by one or more Toll employees after Mr Torres had consented only to Toll downloading his text messages with Mr Clarke. Mr Clarke submitted that that contravention of Mr Torres' consent implied that Mr Challis had acted without integrity during the investigation.
[198] Mr Clarke submitted that the transcript of his interview of 1 June 2018 produced during the investigation of Mr Torres' complaint and submitted to the Commission during this matter did not accurately reflect the content of that interview, and suggested that those transcripts had been "heavily redacted by Challis and Kenny in their endeavours to hide their many indiscretions".[98] In response to Toll's closing submissions, Mr Clarke submitted "There is no doubt in my mind that Kenny by his own actions or directing another to doctor the recordings to remove the wordings by Kenny that I stole the Anzac Biscuits and Kenny substituted the wordings Ozzie Ozzie etc and there are organisations that can detect such tampering."[99]
[199] Mr Clarke submitted that Mr Torres' original handwritten complaint does not qualify as 'admissible evidence' and looked like something a person had been forced to write under duress or against their will.[100]
[200] Mr Clarke's submissions were frequently phrased aggressively and disparagingly towards Mr Challis, Mr Kenny, Ms James, Ms de Lange Savage and Toll generally. Mr Clarke compared Toll's submissions regarding Mr Clarke's references to Cardinal George Pell to the type of 'propaganda and suppression' practiced in Nazi Germany. Mr Clarke suggested on several occasions in his closing submissions that Mr Challis and Mr Kenny had attempted to lie to and purposefully mislead this Commission and had perjured themselves.
[201] Mr Clarke submitted in his response to Toll's closing submissions that Toll's defence would have been 'struck out' in 'any competent jurisdiction' after Toll did not call Mr Torres as a witness at the hearing of this matter. Mr Clarke submitted that Toll as 'the prosecution', "...failed in their most elementary requirements to produce the evidence, but rather has resorted to telling blatant lies, adopt character assignation tactics in lieu of the provision of supplying legitimate evidence [sic]."[101]
[202] Mr Clarke submitted that the workplace policy documents and training records relevant to Mr Clarke produced by Toll had signs of being 'remodelled' and 'doctored', and only provided vague details as to the workplace policy training that Mr Clarke had completed.[102]
[203] In his closing submissions Mr Clarke confirmed that he did not seek to be reinstated to his employment with Toll, and sought compensation for being unfairly dismissed. Mr Clarke addressed the criteria for deciding the amount of any compensation to be ordered as set out in s.392(2) of the Act.
[204] Mr Clarke submitted that there would be no impact on the viability of the Toll's enterprise as a result of an order for compensation.[103]
[205] Mr Clarke submitted that he had been employed by Toll for over 13 years, "...with no allegations previously made by NQX/Toll."[104]
[206] No submissions were made as to how long Mr Clarke might have continued in his employment but for being dismissed.
[207] Mr Clarke's evidence is that he had surgery to his forehead following the dismissal, and this was evident at hearing. In correspondence dated 18 October 2018, he stated that he had been unable to twist his neck at risk of bursting a 14cm scar. Scant information was provided about his efforts to mitigate his loss. Mr Clarke submitted that the odds of him gaining employment within his area of expertise at his age of 63 were not particularly high,[105] and having been employed by Toll for 13 years, it was difficult for prospective employers to obtain suitable reference checks on him.
[208] Following the hearing, Mr Clarke filed to my chambers bank statements issued since his dismissal. Mr Clarke submitted that he had earned no income from employment since his dismissal. Mr Clarke noted that he had sold some shares since his dismissal to obtain funds.
[209] Mr Clarke did not identify any precise amount of compensation that he submitted should be awarded to him.
[210] Following the hearing of this matter, Toll confirmed that the transcript of Mr Clarke's interview of 1 June 2018 had been received by Toll on 5 June 2018.
Open to find that Mr Clarke inappropriately touched Mr Torres
[211] Toll acknowledged that following the investigation of Mr Torres' complaint, Toll concluded that Mr Torres' allegation that Mr Clarke had inappropriately touched Mr Torres could not be substantiated and consequently, Toll did not dismiss Mr Clarke because he allegedly touched Mr Torres inappropriately.
[212] Curiously, on 6 November 2018 after the conclusion of the hearing, the following correspondence was sent by Toll to chambers, copying in Mr Clarke:
On 3, 4 and 5 November, I reviewed the transcript of the proceedings.
It is necessary for me to inform the Commission and the Applicant, that that evidence by Mr Challis at PN2648, PN2649, PN2665, PN2666, PN2671, PN2672, PN2699, PN2701, PN2702, PN2703, PN2707, PN2715, PN2719 is not correct.
The allegation that the Applicant had inappropriately touched Mr Torres was not substantiated by Mr Challis at the time the Applicant was terminated. For this reason, the Decision Makers did not make a decision to terminate the Applicant's employment because the Applicant inappropriately touched Mr Torres.
The evidence that Mr Challis has given at PN2731 and PN2732 should be accepted that he could not make a finding of whether or not there had been touching.
The Respondent will not make submissions that Mr Challis substantiated this allegation nor that the Decision Makers terminated the Applicant for inappropriately touching Mr Torres.
That said, we reserve our right to make submissions that it is open to the Commission to find that the Applicant did in fact inappropriately touch Mr Torres.
[213] In its closing submissions Toll submitted that it is open to the Commission to find that Mr Clarke did in fact inappropriately touch Mr Torres, despite its submission that the reasons for Mr Clarke's dismissal did not include the alleged inappropriate touching of Mr Torres. Toll submitted that after Mr Torres described Mr Clarke "touching me or squeezing my bum at work" in the text message of 5:37pm on 13 May 2018, Mr Clarke's text response stated only "Okay". Toll submitted that when that text message was put to him by Mr Kenny during the interview of 1 June 2018, Mr Clarke did not deny that he had touched or squeezed Mr Torres on the bum. Toll submitted that it is more likely than not that Mr Clarke did not deny touching Mr Torres on the bum because he did touch Mr Torres on the bum.
[214] Toll stated in its closing submissions that "Mr Challis did not consider the evidence as well as he could have."[106]
[215] My consideration of whether the allegation that Mr Clarke inappropriately touched Mr Torres formed a reason for Mr Clarke's dismissal appears below.
s.387(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)
[216] Toll submitted that Mr Clarke was dismissed for the following reasons:
(a) Mr Clarke sent inappropriate, offensive and vulgar text messages of a sexual nature to Mr Torres, his work colleague;
(b) Mr Clarke showed no remorse for his conduct and his responses to his conduct gave rise to a legitimate concern on Toll's part that Mr Clarke may re-offend were he merely warned about his conduct;
(c) Mr Clarke lacked integrity during the investigation of Mr Torres' complaint which included serious allegations that Mr Clarke had sexually assaulted Mr Torres and which Mr Clarke failed to take seriously;
(d) Mr Clarke in his capacity as a Justice of the Peace offered to help Mr Torres, who appeared to be planning to defraud Toll by taking an illegitimate 'sickie', by offering to sign a statutory declaration for him; an act that is inconsistent with his duty not to use his title where it is inappropriate to do so.
[217] It was submitted that each of the four reasons for Mr Clarke's dismissal, when considered alone, constitute a 'sound, defensible or well-founded'[107] reason to dismiss Mr Clarke and, when considered together, prove that there was nothing 'capricious, fanciful, spiteful or prejudiced'[108] about Toll's reasons to dismiss Mr Clarke form his employment.
[218] In answering Mr Kenny during the interview of 1 June 2018, Mr Clarke described his relationship with Mr Torres as:
Clarke: Well, I wouldn't class him as a close friend.
Kenny: Did you consider him a close friend up until recent?
Clarke: No. No. No. I've never - I've never considered him a close friend. A - a work colleague.
[219] Mr Clarke confirmed at hearing that he only ever considered Mr Torres to be his work colleague.[109]
[220] Toll submitted that between 28 March 2018 and 13 May 2018 Mr Clarke sent Mr Torres, his work colleague, a number of text messages which were inappropriate, offensive, vulgar and of a sexual nature. Toll points particularly to the following text messages as the most inappropriate messages sent to Mr Torres by Mr Clarke:
Mr Clarke: "You okay with that? He fwd u his answer? He sympathetic to you. . Hope so
Hope my little mate push really hard of pain you suffer cause of cunts at Toll but not say old man who is mate molest you n hurt your back. ..am very sorry I hurt you.. will be more careful when I molest you next time
Mr Clarke: "For fuck sake you little bitch. Stop trying to fleece me...not your milking cow...no moo moo.
Next time I molest you will put my hand on your little balls and squeeze them till you cry..."
[221] It was submitted that the above text messages are inappropriate, offensive, vulgar, of a sexual nature and additionally, are intimidating and threatening and represent a type of conduct that creates a risk to the safety and welfare of a Toll employee.
[222] Following the hearing, Toll filed and served on Mr Clarke a copy of Toll's 'Workplace Behaviours Standard' and 'Inappropriate Behaviour in the Workplace Policy' which had both been effective within Toll's workplaces as of 17 June 2014 and which Mr Clarke had certified that he had reviewed in the provided bundle of training records. Toll submitted that those policies included provisions prohibiting sexual harassment in Toll's workplaces.
[223] The Workplace Behaviours Standard includes examples of expected workplace behaviour and employee's responsibilities for their behaviour in Toll's workplaces. The Workplace Behaviours Standard describes when harassment and sexual harassment can occur and states:[110]
"Harassment (including sexual/racial harassment)
Harassment occurs when uninvited or unwelcome behaviour causes someone or a group of people to feel intimidated, insulted or humiliated. It can occur in a single incident or a series of incidents. Harassment may also be experienced by someone witnessing behaviour not directed to them e.g. overhearing an unacceptable joke.
Each person perceived things differently as their values and experiences are unique to them. They therefore, may react differently to how someone may expect them to act.
Sexual harassment is a specific and serious form of harassment. It is uninvited behaviour of a sexual nature or displays of material of a sexual nature that could be expected to make a person feel offended, humiliated or intimidated. Sexual harassment can be physical, spoken, visual or written. In this instance sexual harassment committed by an employer, workmate or other people in a working relationship with the victim, is considered to be work related and against company policy. It may include indecent exposure, stalking, sexual assault and obscene or threatening communications such as phone calls, letters, emails, text messages and postings on social networking sites.
In Australia, sexual harassment (and victimisation) is unlawful under the Sex Discrimination Act 1984 (Cth) as well as anti-discrimination legislation operating in every State and Territory.
As shown in the example below, just because someone does not object to inappropriate behaviour in the workplace at the time, does not mean that they are consenting to the behaviour.
Sexual harassment is covered in the workplace when it happens at work, at work-related events, between people sharing the same workplace, or between colleagues outside of work [original emphasis]."
[224] The Inappropriate Behaviour in the Workplace Policy incorporates several of the policies regarding appropriate workplace behaviour set out at [165] above. The Inappropriate Behaviour in the Workplace Policy describes sexual harassment as follows:[111]
Sexual harassment is offensive from the viewpoint of the person harassed regardless of any "innocent intent" on the part of the offender. Sexual harassment:
Indecent exposure, sexual assault or rape also constitute sexual harassment. They are also acts of a very serious nature and are deemed criminal offences. Acts of this nature should be reported to the police immediately.
Toll may deem conduct to be in breach of this policy even if no person comes forward to raise a complaint. For example, storing and viewing sexually explicit images on the computer at work may be deemed to constitute sexual harassment under this policy, even if there is no complaint filed.
Examples of conduct amounting to sexual harassment
Depending on the circumstances, sexual harassment may include such actions as:
It is not sexual harassment to develop friendships or relationships with other people at work. Mutually acceptable friendships which develop between people who meet at work have nothing to do with sexual harassment. Further, what employees choose to do in their private life is their own business. However, sexual harassment in the work place is a matter for Toll. Behaviour which is acceptable privately or socially may be totally inappropriate in a work environment [original emphasis]."
[225] Toll submitted that while it could not confirm with absolute certainty which version of certain workplace policies Mr Clarke had reviewed, it could be reasonably concluded that Mr Clarke had been provided with policies that included a requirement not to sexually harass or act inappropriately towards another employee.
[226] Further, Toll submitted that "an employer does not have to have a policy or procedure in place informing employees that for example, it is unacceptable to repeat what an alleged child molester said to a child, to another employee or to not tell another employee, 'next time I molest you will put my hand on your little balls and squeeze them till you cry...'. Toll submitted that a reasonable person in Mr Clarke's position would have known that such communication would be considered unacceptable by an employer, and submitted that it is a matter of common sense.
[227] Toll submitted that Mr Clarke's evidence regarding his and Mr Torres' ongoing discussion about Cardinal Pell and its effect on the context of the text messages was inconsistent and difficult to comprehend. Toll submitted that in any case, it is clear that Mr Clarke deemed it appropriate to repeat to Mr Torres, his work colleague, what an alleged child molester (at the time of the hearing) had allegedly said to a child. Toll submitted that such conduct was inappropriate, offensive, vulgar and had no place within Toll's workplace.
[228] Toll submitted that Mr Clarke's contention that the nature of the communication within the text messages was simply how he and Mr Torres spoke with each other could not be substantiated. It was submitted that the text messages between 2 May 2018 and 13 May 2018 demonstrate that it how Mr Clarke spoke with, or sent texts to Mr Torres, but not how Mr Torres spoke with, or sent texts to Mr Clarke.
[229] It was submitted that none of the Toll employees interviewed on Mr Clarke's suggestion stated that expressions such as 'sexy', 'bitch', or toy boy', or combinations thereof formed part of the way that those employees spoke to each other. This submission was made without having provided to the Commission, or referenced the interview transcript of Employee 5 at [92].
[230] Toll notes that at all times throughout the investigation of Mr Torres' complaint, following his dismissal and during the course of his application to this Commission, Mr Clarke has confirmed that he has no remorse or issue with the nature of his communications towards Mr Torres.
[231] Toll submitted that even it were accepted that:
(a) Mr Clarke and Mr Torres did ordinarily speak to each other in the nature of the communications within the text messages;
(b) Other co-workers of Mr Clarke and Mr Torres also spoke to each other in that way; and
(c) Mr Clarke could not have been aware that communicating in that way was not acceptable to Toll,
then at the time that Mr Clarke became aware that such communication or conduct was not acceptable to Toll, and that his employment was in jeopardy, "he was obligated to agree cease communicating in this way if he wanted to continue to work for [Toll]".[112]
[232] It was submitted that in that scenario, Mr Clarke could have informed Toll that he was unaware that his conduct was not acceptable to Toll, and undertaken not to engage in that conduct again. Instead, Mr Clarke continued to show no remorse for his conduct, leaving it reasonably open for Toll to conclude that he could re-offend if remained employed by Toll.
[233] Toll submitted that Mr Clarke was dishonest regarding several matters during the interview of 1 June 2018.
[234] Toll submitted that Mr Clarke dishonestly stated during his interview that Mr Torres had first asked to borrow money from him and, after Mr Clarke asked whether Mr Torres thought he was going to be his 'stepdad', had started to refer to Mr Clarke as 'stepdad'. Toll submitted that it is clear from the text messages, and particularly from Mr Clarke's text messages of 2 May 2018, that Mr Clarke suggested that he could offer financial assistance to Mr Torres and that Mr Torres could call him 'stepdad'. Further, Toll submitted that Mr Clarke's evidence regarding the 'stepdad' term changed at hearing, where Mr Clarke stated that the he had said the Mr Torres could call him 'stepdad' after having a falling-out with his father.
[235] It was submitted that Mr Clarke dishonestly stated during his interview that the only time he used the word 'molest' towards Mr Torres was in relation to money owed to him by Mr Torres that Mr Clarke was attempting to have paid back. Toll submitted that the first time that Mr Clarke used the word 'molest' in relation to Mr Torres was in his text message of 3:34pm on 2 May 2018, wherein Mr Clarke stated, "...Hope my little mate push hard of pain you suffer because of cunts at Toll but not say old man who is mate molest you n hurt your back. am very sorry I hurt you. . Will be more careful when I molest you next time..."
[236] Toll submitted that Mr Clarke dishonestly stated during his interview that Mr Torres had never told Mr Clarke not to touch him. Toll referred to Mr Torres' text messages to Mr Clarke on 2 May and 13 May 2018 wherein Mr Torres stated "No more rubbing..." and "No molesting not good need to stop about molesting me". Toll submitted that Mr Clarke was clearly dishonest in his denying that Mr Torres had ever asked Mr Clarke not to touch him.
[237] Toll noted Mr Clarke's allegation that during the interview of 1 June 2018 Mr Kenny accused him of having stolen ANZAC biscuits. During the hearing an audio recording of the interview of 1 June 2018 was played for Mr Clarke. Nowhere within that audio recording did Mr Kenny accuse Mr Clarke of having stolen ANZAC biscuits. Mr Clarke alleged that the recording had been altered or varied to omit a statement allegedly made by Mr Kenny towards Mr Clarke of, "You stole them" in reference to the ANZAC biscuits. Toll submitted that Mr Kenny's evidence regarding the questions asked of Mr Clarke during his interview relevant to the ANZAC biscuits should be accepted over Mr Clarke's evidence.
[238] Toll submitted that Mr Clarke, having received Mr Torres' text message of 5:27pm on 24 March 2018 (extracted above at [47]), ought to have known that Mr Torres could not reasonably predict that he would be sick four days later. Toll also submitted that Mr Clarke was aware that Mr Torres had previously taken personal leave from his employment with Toll to perform additional work as a driver for the 'Uber' ride-sharing service and that on the balance of probabilities, Mr Clarke would have had a reasonable suspicion that Mr Torres was intending to defraud Toll by taking personal leave illegitimately. Toll submitted that Mr Clarke's text message in response to Mr Torres stating, "Don't tell anyone, okay" favoured the balance of probabilities that Mr Clarke knew Mr Torres was planning to take personal leave illegitimately and defraud Toll.
[239] Toll submitted that Mr Clarke had therefore offered to assist Mr Torres to defraud Toll, which constituted a reason to dismiss him from his employment with Toll.
s.387(b) - Whether the person was notified of that reason
[240] Toll submitted that Mr Clarke was notified of the reasons for his dismissal on 17 July 2018 by way of the termination letter. Toll submitted that this criterion should be given neutral consideration.
s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
[241] Toll submitted that Mr Clarke was given two separate opportunities to respond to reasons for his dismissal related to his conduct, and notes that Mr Clarke submitted written responses to the show cause letter on 5 July 2018 and again on 12 July 2018.
s.387(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
[242] Toll submitted that it did not unreasonably refuse to allow Mr Clarke to have a support person present to assist him at any discussions relating to dismissal. Toll refers to Mr Kenny's evidence that he expressly said to Mr Clarke during the interview of 1 June 2018 that he was entitled to have a support person present and that Mr Clarke could request at any time during the interview for a support person to present, upon which the interview would be stopped and a support person arranged. Toll submitted that this criterion should be given neutral consideration.
s.387(e) - Was there a warning of unsatisfactory work performance before dismissal
[243] Toll submitted that Mr Clarke's dismissal was terminated because of his conduct, not any unsatisfactory performance,[113] and submits that this criterion is not a relevant consideration in this matter.
s.387(f) - Whether Toll's size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated resource management specialist impacted on the procedures followed
[244] Toll submitted that these criteria should be given neutral consideration.
[245] Toll submitted Mr Clarke's attitude towards Mr Kenny and Mr Challis throughout this matter is relevant and should be taken into account. Toll submitted that various statements directed towards Mr Kenny and Mr Challis by Mr Clarke, particularly in his responses to the show cause letter, were unwarranted and unacceptable, such as:
(a) "Is Mr Challis or Mr Kenny purporting to be the companies moral police, maybe they should be advised of which century we are in";
(b) "Clearly [Mr Challis] and Mr Kenny are somewhat deluded as to [their] on authority and its questionable that Toll Management or Tolls legal representatives would accept this procedure in the first place";
(c) "[The interview of 1 June 2018]... was somewhat theatrical and more relevant to two old men sitting under a tree discussing an episode of Days of Our Lives or Bold and the Beautiful, more-so pathetic divulge into the private life of others and none of your business in any form whatsoever. Reminded me of two nobodies going nowhere, of a dullard and a drone attempting to feel important in their pathetic little world";
(d) "...I am under no obligation to explain my personal text messages to some sticky-beak type who gives me the opinion of being narrow minded and living in some by-gone era";
(e) "[Mr Challis] believed he has some authority over me that [Mr Challis] is Judge and Jury at his demented whim, terminate my employment";
(f) "I would submit that any experienced professional investigator would be extremely embarrassed to produce the claptrap that [Mr Kenny' believes is his gathered evidence";
(g) "If Mr Kenny is professional as he suggests, does he not know what is admissible evidence and what is not, what is hearsay and what is relevant and what limited value there is in providing his opinion on persons status of friendship, to the ridiculous end whereas Kenny has chosen to supply a character reference on himself. A sign of a dullard trying to pretend he is an experienced investigator; it could be suggested that both Challis and Kenny are a complete embarrassment to Toll Transport";
(h) "I can't help but imagine that Challis and Kenny have their televisions set permanently on Fox and compare themselves to the likes of Alan Jones or Andrew Bolt! They would certainly be shocked what the public broadcasters ABC and SBS transmit to the broadminded citizens of this country";
(i) "...hence my belief that Challis is telling lies and in my opinion a complete grub who deserves no respect. Maybe Challis has some health issues and blanked out or fell asleep through the boredom of Kenny's interrogation."
[246] Toll submitted that the above statements are personal, demeaning attacks upon Mr Challis and Mr Kenny, which no manager should be subjected to. Toll submitted that Mr Clarke's unwarranted and unacceptable comments towards Mr Challis and Mr Kenny provide a sound, defensible or well-founded reason to dismiss Mr Clarke's employment.
[247] Toll submitted that Mr Clarke's application should be dismissed.
[248] It was submitted that if the Commission does not agree with Toll's submissions and finds that Mr Clarke was unfairly dismissed from his employment, reinstatement is not an appropriate remedy to be awarded in this matter for the following reasons:
(a) Mr Clarke's actions have destroyed the relationship with Toll to an unsalvageable degree;
(b) Mr Clarke has taken no responsibility for his actions;
(c) Mr Clarke has not committed to cease communicating in the nature that he communicated with Mr Torres;
(d) Mr Clarke has acted dishonestly, and has offered to help another Toll employee attempt to defraud Toll by offering to provide an illegitimate statutory declaration.
[249] Toll submitted that if the Commission is minded to make an award of compensation to Mr Clarke, then the Commission should find that Mr Clarke provided no evidence of attempting to find alternative work and no evidence that he was too ill to search for work. Toll submitted that preparing for and attending the hearing of this matter was 'more strenuous than applying for work' and suggested that Mr Clarke was fit enough to apply for alternative work.[114]
[250] I will address each of the criteria set out in s.387 of the Act separately.
s.387(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)
[251] Before I can determine whether there was a valid reason for Mr Clarke's dismissal, I must first determine the precise reasons for Mr Clarke's dismissal.
[252] The reasons for the dismissal contained within the termination letter of 17 July 2018 are as follows:
(a) Mr Clarke failed to act with integrity during the investigation into Mr Torres' complaint which resulted in an irretrievable breakdown in the employment relationship;
(b) The combination of Mr Clarke's conduct during the investigation and his unacceptable conduct evidenced in the investigation findings.
[253] The termination letter did not set out the investigation findings resulting in his dismissal. Toll's closing submissions set out Mr Clarke's conduct resulting in his dismissal, as follows:
(a) Mr Clarke sent inappropriate, offensive and vulgar text messages of a sexual nature to Mr Torres, his work colleague;
(b) Mr Clarke showed no remorse for his conduct and his responses to his conduct gave rise to a legitimate concern on Toll's part that Mr Clarke may re-offend were he merely warned about his conduct;
(c) Mr Clarke lacked integrity during the investigation of Mr Torres' complaint which included serious allegations that Mr Clarke had sexually assaulted Mr Torres and which Mr Clarke failed to take seriously;
(d) Mr Clarke in his capacity as a Justice of the Peace offered to help Mr Torres allegedly attempted to defraud Toll by offering to sign a statutory declaration allowing Mr Torres to take an illegitimate day of personal leave, or to 'chuck a sickie', in an act inconsistent with Mr Clarke's duty not to use his title of Justice of the Peace where it is inappropriate to do so.
[254] Toll confirmed in its closing submissions that the allegation that Mr Clarke inappropriately touched Mr Torres was not substantiated, and therefore the reasons for Mr Clarke's dismissal did not include the reason that he inappropriately touched Mr Torres.[115] Yet Mr Challis gave evidence that it did form part of his decision making to dismiss Mr Clarke. Despite the email sent by Toll on 6 November 2018 (extracted above at [212]), I do find that Mr Challis formed a view that Mr Clarke had inappropriately touched Mr Torres both in the workplace and outside of the workplace.
Did Mr Clarke send inappropriate, offensive and vulgar text messages of a sexual nature to Mr Torres?
[255] During the hearing Mr Clarke asked questions in cross-examination of witnesses whether they attended particular musicals or theatrical productions where, in those productions there are some sexualised references. In effect, Mr Clarke was suggesting to the witnesses that they are not 'worldly', and I understood him to regard Mr Challis and Mr Kenny as prudes. It was Mr Clarke's evidence that as long as he was OK with the language, tone and sexual references within, it was an acceptable communication to his work colleague.
[256] During his employment Mr Clarke had no regard to the boundaries it may be necessary to have with a work colleague. On his evidence Mr Torres was not a close friend; simply a work colleague. Mr Clarke agreed that such conduct would not be acceptable between a manager and subordinate employee.
[257] While it is true that many of the text messages from Mr Clarke to Mr Torres were sent by him on Wednesdays, being Mr Clarke's day off work, they were received by Mr Torres during his workday.
[258] A question arises of whether there was a relevant nexus between Mr Clarke's conduct outside of working hours and his employment with Toll and whether such conduct could be properly considered to be in breach of Toll's workplace policies despite occurring out of hours.
[259] In Appellant v Respondent (1999) 89 IR 407, a Full Bench of the Australian Industrial Relations Commission (as this Commission was then known) stated, "...it is only in exceptional circumstances that an employer has a right to extend any supervision over the private activities of employees."[116]
[260] In Rose v Telstra Corporation Limited Print Q9292 (AIRC, Ross VP, 4 December 1998) (Rose), then Vice President Ross of the Australian Industrial Relations Commission considered previous decisions regarding out of hours conduct and distilled several indicia of when out of hours conduct may be a valid reason for dismissal, as follows:[117]
"It is clear in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited;
In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee."
[261] I have considered the text messages sent from Mr Clarke to Mr Torres in light of the above. The following text messages are the most concerning;
(a) Hope my little mate push really hard of pain you suffer cause of cunts at Toll but not say old man who is mate molest you n hurt your back. ..am very sorry I hurt you.. will be more careful when I molest you next time
(b) Oh my beautiful step son
Did secret loan to other work mate n not tell wife..money from secret account. .
Listen u dumb cunt cum beautiful son...more money Sat four hr shift then Uber.. you heading for belting from new Dad"
(f) You gotta stop being bitch n tell in advance of secret transactions for beautiful toy boy
(i) For fuck sake you little bitch. Stop trying to fleece me...not your milking cow...no moo moo. Next time I molest you will put my hand on your little balls and squeeze them till you cry...
[262] While Mr Clarke might have thought the text messages were received by Mr Torres without offence, it is clear that Mr Torres did find offence, especially when he showed them to more sophisticated work colleagues in Mr Buckingham and Mr Lotomau. Mr Torres was certainly not an innocent player in the dialogue; it is my view that in the later exchanges he was playing off Mr Clarke, hoping Mr Clarke would advance him sums of money.
[263] Mr Clarke's submission that Mr Torres found the text messaging acceptable until such time the request for further money was resisted by Mr Clarke might have some merit to it, but for the declarations love made by Mr Clarke on 13 May 2019, and then his aggressive text messaging within one hour. Mr Torres was entitled to complain to Toll of sexual harassment given the expressions of love made by Mr Clarke and the almost immediate threat of harm made by Mr Clarke.
[264] Mr Clarke attempted to explain to the Commission that because he had held discussions with Mr Torres in January 2018 regarding Cardinal Pell and the criminal matters Cardinal Pell was then facing, this should colour and help explain the text messages between himself and Mr Torres. I am satisfied that Mr Clarke did walk Mr Torres through the St Stephen's Cathedral grounds. Mr Torres confirmed to Mr Kenny and Mr Challis during his second interview on 8 June 2018 that Mr Clarke had walked him to his union's lawyer's office on Creek Street.[118]
[265] I accept Mr Clarke's evidence that Cardinal Pell was discussed. Mr Clarke is clearly a well-read man, and aware of current affairs in the print media. Having listened to Mr Torres' interviews, and his denial of having discussed Cardinal Pell, it would appear to me that he is not so well-read. I understand how, when asked by Mr Kenny if Cardinal Pell had been discussed, he said no. It is my view that discussion regarding Cardinal Pell appeared to 'go over Mr Torres' head'.
[266] Despite accepting Mr Clarke's evidence regarding the discussion, I do not accept that many text messages sent in following months are somehow linked to a one-off discussion in or about January 2018. There was no ongoing text 'banter' between the men about molestation; it was all one way from Mr Clarke to Mr Torres. There was no ongoing 'banter' from Mr Clarke to Mr Torres linking the 'squeezing of little balls' with Cardinal Pell. The only time Mr Clarke sent this message to Mr Torres by text was in aggression, after realising he was, in all likelihood, being 'milked' by Mr Torres.
[267] Mr Clarke submitted that the language and references used in the text messages to Mr Torres are similar to how employees in his workplace speak to each other. Having had the benefit of the transcripts of the interviews with relevant employees, I do not accept that to be the case. Only two employees agreed that they and Mr Clarke might exchange rubbing fresh haircuts, and both agreed Mr Clarke planted a kiss on their cheek or head in a friendly manner. All but one of the relevant employees denied that the terms 'bitch' and 'toyboy' are used within the workplace. One employee, Employee 5 could not definitively recall the use of these terms, but thought they might occur between him and Mr Clarke.
[268] Many of the text messages sent by Mr Clarke to Mr Torres are inappropriate due to the sexual statements and declarations of love to a work colleague, where no such mutual relationship of love existed. Further, the reference to molestation is inappropriate. I am satisfied they breach the Workplace Behaviours Standard and the Inappropriate Behaviour in the Workplace Policy, and were not welcomed by Mr Torres. In the evidence before the Commission I cannot be satisfied that the Toll Code of Practice was issued to Mr Clarke. However Mr Clarke had been trained in the Workplace Behaviours Standard and the Inappropriate Behaviour in the Workplace Policy. I agree with Toll's submission that it need not only be a breach of company policies and procedures to warrant a valid dismissal; if Toll did not have policies, the conduct could be regarded as inappropriate.
[269] I have had regard to Toll's Inappropriate Behaviour in the Workplace Policy, and in particular the references within to an employee's private life. I am satisfied there is a sufficient employment nexus to find that Toll had authority and a responsibility to investigate and make findings relevant to the text messages and general conduct between Mr Clarke and Mr Torres. I do not accept Mr Clarke's submissions to the Commission and his opposition to Toll during its investigation that he was free to engage in such communications without the interference of Toll. As stated above, Mr Torres informed Toll that the text messages were not welcomed, and I find it was reasonable of Toll to conclude that the text messages were not welcomed. I am satisfied that Mr Clarke's conduct meets all of the circumstances explained in Rose above (nothing that only one might need to be met), especially in light of Mr Clarke's belligerent statements that it was none of Toll's concern, and he would communicate with employees in private as he sees fit. I find that viewed objectively:
(a) his conduct is likely to cause serious damage to his relationship with Toll;
(b) his conduct damages Toll's interests in that it had before it very serious matters and an aggrieved employee in Mr Torres; and
(c) his conduct is incompatible with his duty as an employee, including suggesting that he would assault Mr Torres.
[270] Toll was prepared to dismiss Mr Torres for his part in the exchanges; however he resigned before Toll had the opportunity to dismiss him.
[271] Being satisfied that Mr Clarke's conduct breached the Workplace Behaviours Standard and the Inappropriate Behaviour in the Workplace Policy, that there is sufficient nexus to his employment, I determine that Mr Clarke's conduct was inappropriate, warranting termination. I find that there was a valid reason for the dismissal.
Would Mr Clarke have re-offended were he merely warned about his conduct?
[272] It appears to me to be Mr Clarke's evidence that even if he had been issued with the Toll Code of Practice, he still considered his texting to Mr Torres to constitute a private matter, with immunity from management's interference, so long as Mr Clarke considered the communication to be appropriate.
[273] An employee of Mr Clarke's age ought to know better than that. He has worked a considerable amount of time in a large organisation, and before that, he too would have been required to conduct himself appropriately in the workplace. Text messaging has been part of Australian technology for around 25 years; it is not a new medium of communication. One can't text message a work colleague any message one likes if it breaches reasonable expectations of conduct. An employer is entitled to expect its employees will communicate within the workplace with appropriate levels of respect, civility, and good conscience not to harass, embarrass or intimidate. If employees then engage in text messaging outside of work, that is then an agreed matter between them. Equally, however, there are boundaries relevant to acceptable conduct which should not be crossed.
[274] Having regard to Mr Clarke's responses during the interview with Mr Kenny and Mr Challis, together with his attacks on both men for even investigating the matter, it is my view that Mr Clarke would not have accepted a written warning for his conduct. This much is clear from his personal attack on both men, and the ferociousness of his submissions in these proceedings.
Did Mr Clarke lack integrity during the investigation of Mr Torres' complaint?
[275] It is unsurprising that Mr Kenny and Mr Challis wanted to ask Mr Clarke questions in relation to the printed text messages by first showing Mr Clarke the messages and having him answer during the interview. It appears to me that Mr Kenny and Mr Challis wanted an element of surprise in the answers provided by Mr Clarke. He was not afforded time to review the printed messages, prepare a position and then answer questions.
[276] Where Mr Clarke originally denied certain things to Mr Challis and Mr Kenny, such as referring to Mr Torres as 'bitch' and 'sexy' or introducing the 'stepson/stepdad' terminology in to the text messages, this may be understandable on account of not having time between reviewing the printed messages and being asked questions. It would have been appropriate if Mr Clarke had been afforded, for example, 20 minutes or so to read the text messages before being asked questions.
[277] I consider any instance during the interview on 1 June 2018, where Mr Clarke's responses to Mr Challis and Mr Kenny were later shown to be incorrect by reference to the text messages, resulted from errors in Mr Clarke's recollection of relevant events or correspondence, rather than an attempt to deliberately mislead Mr Challis and Mr Kenny through dishonesty. However, following the interview, and having been afforded time and opportunity to review the printed text messages, Mr Clarke had all opportunity to answer the matters before him in the show cause letter.
[278] Relevant to the issue of the swearing of the statutory declaration, as per my consideration below, I find that Mr Clarke did lack integrity during the investigation.
Did Mr Clarke intend to assist Mr Torres to illegitimately use personal leave by offering to sign a statutory declaration?
[279] Mr Clarke was asked on a number of occasions why he responded as he did to Mr Torres' text message below, sent on a Saturday:
Mr Torres (5:27pm): I want to have a sicky on Thursday bout I might get in trouble
[280] Mr Clarke's response to Toll during its investigation and to the Commission lacks any form of credibility. Mr Torres' own text message indicates that it is a 'sickie', and he doesn't want to get into trouble. Mr Clarke promises to, in his capacity as a Justice of the Peace, help Mr Torres swear a statutory declaration. I have no hesitation in finding that Mr Clarke intended to allow Mr Torres to swear a statutory declaration before him that Mr Torres knew was not truthful in order to not attend for work on the following Thursday.
[281] I do not accept Mr Clarke's evidence that where he stated, "Don't tell anyone okay", he meant for Mr Torres not to tell the wider group because he would be swamped with such requests. Mr Clarke's evidence is that he had, for some period of time, run a battle with Toll management over being authorised to assist in statutory declarations for employees seeking personal leave. He had 'won' that battle and statutory declarations sworn before him were accepted by Toll.
[282] It is not clear from the evidence how wide a group knew of Mr Clarke's capacity as a Justice of the Peace to assist with statutory declarations. It is not a necessary consideration. Mr Clarke's own words in his text message make it abundantly clear that he was prepared to assist Mr Torres have a 'sickie' and prevent Mr Torres from getting into trouble.
[283] I find that Mr Clarke's text message to Mr Torres above constitutes a valid reason for the dismissal. Further, I find Mr Clarke's lack of integrity during Toll's investigation into this issue to constitute a valid reason for the dismissal.
[284] As described at [211] - [214], following the hearing, Toll submitted that Mr Challis was 'wrong' when giving evidence on the issue of the reasons for the dismissal. It is the most extraordinary thing for in-house counsel to later submit that Mr Challis was 'wrong' when he gave his own evidence, answering questions from the Commission.
[285] Mr Challis was the decision maker. He determined that the conduct warranted dismissal. It has been, for Toll, a most embarrassing moving feast as to whether the decision to terminate Mr Clarke's employment did or did not include findings made by Toll that Mr Clarke inappropriately touched Mr Torres in and outside of the workplace.
[286] In answering questions from me, Mr Challis agreed that it did. It is not for in-house counsel to later suggest that it did not.
[287] I find that Mr Challis did, in fact, make findings that Mr Clarke inappropriately touched Mr Torres in and outside of the workplace.
[288] On the evidence before the Commission, I do not accept that Mr Challis could have properly determined that to be the case. The only evidence on this issue is the following text message:
"Hope my little mate push really hard of pain you suffer cause of cunts at Toll but not say old man who is mate molest you n hurt your back. ..am very sorry I hurt you.. will be more careful when I molest you next time"
[289] No thorough investigation occurred on this issue, and Mr Clarke rightly criticised Toll for not interviewing three employees who take meal breaks at a time when this alleged behaviour is said to have occurred. He also criticised Toll for not making prudent investigations into whether there was any CCTV footage available. Further, Mr Kenny's evidence is that he considered that Mr Torres' had 'lied' when interviewed in relation to other matters.
[290] Having found that one of the reasons for the dismissal was Mr Challis' conclusion that Mr Clarke had inappropriately touched Mr Torres in and outside of the workplace, I do not accept that was a valid reason for the dismissal.
s.387(b) - Whether the person was notified of that reason
[291] There is much to be said for the somewhat sliding reasons offered by Toll as to the reasons for the dismissal. I accept that Mr Clarke was notified that the reasons for his dismissal included the inappropriate, offensive and vulgar text messages of a sexual nature, lacking integrity during the investigation, and offering to help Mr Torres falsely swear a statutory declaration.
[292] I find that Mr Clarke was not informed that one of the reasons for his dismissal included Mr Challis' finding that he considered that Mr Clarke had inappropriately touched Mr Torres in and out of the workplace.
s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
[293] Mr Clarke was afforded opportunity to respond to the concerns raised by Toll regarding his conduct. In Mr Clarke's show cause response he referenced there being insufficient information regarding any claim of inappropriate touching of Mr Torres, and stated that it was a joke between himself and Mr Torres.
s.387(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
[294] I accept that Mr Clarke was offered the opportunity to have a support person at the interview of 1 June 2018. The first and second show cause letters of 29 June 2018 and 2 July 2018 both included an invitation for Mr Clarke to bring a support person with him to the proposed meeting to discuss Mr Clarke's response. There is no evidence before me that Mr Clarke sought to bring a support person with him to any discussion relating to his dismissal and was denied that opportunity.
[295] This criterion is a neutral consideration.
s.387(e) - Was there a warning of unsatisfactory work performance before dismissal
[296] I accept Toll's submissions that Mr Clarke was dismissed for misconduct, not unsatisfactory work performance.
[297] This criterion is a neutral consideration.
s.387(f) - Whether Toll's size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated resource management specialist impacted on the procedures followed
[298] Toll is a large employer with a dedicated human resources function.
[299] Whilst I accept that there were procedural deficiencies relevant to Mr Challis' findings of inappropriate touching in and outside of the workplace, when regard is had for the other, valid reasons for the dismissal, the procedural deficiencies are not significant enough to be visited upon the respondent so as to contribute to a finding that the dismissal was unfair.
[300] The size of Toll and the availability of dedicated human resources management specialists is a neutral consideration in determining whether the termination of Mr Clarke's employment was harsh, unjust or unreasonable.
[301] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. I consider the following matters to be relevant to the determination of whether the dismissal of Mr Clarke was harsh, unjust or unreasonable.
[302] I do not accept Mr Clarke's submission that the audio recording of his interview of 1 June 2018 has been doctored. I accept Mr Kenny's evidence that he downloaded the recording onto the contracted company's website, and it was professionally transcribed and returned a few days later. I consider Mr Clarke's submission to be fanciful.
[303] I have had regard to the vitriol used by Mr Clarke to Mr Kenny and Mr Challis during the investigation of his conduct. I consider it to be unacceptable and highly inappropriate. It is one thing for an employee to respond with criticism to an employer's investigation of a matter related to their employment; it is another to make offensive, personal criticisms of the investigators and decision makers.
[304] I have had regard to Mr Clarke's lengthy period of service and his otherwise satisfactory employment history. I understand and appreciate the significant impact the dismissal had on him.
[305] Having considered each of the matters specified in s.387 of the Act, I am not satisfied that Mr Clarke's dismissal was harsh, unjust or unreasonable. The dismissal of Mr Clarke cannot fairly be characterised as a disproportionate response to his conduct.
[306] I find that Mr Clarke's dismissal was not unfair and the application for unfair dismissal is dismissed. I Order accordingly.
Mrs F James, Senior Manager Employee Relations, Toll
Mrs K de Lange Savage, General Manager Employee Relations, Toll
Applicant's closing submissions in reply, 10 November 2018
[2] [2011] HCA 2, [33] - [34]; referring to Sengupta v Holmes [2002] EWCA Civ 1104, [11]; and to Leeson v General Council of Medical Education and Registration (1889) 43 Ch D 366 at 385, see also at 390 per Fry LJ.
[3] Transcript of proceedings, 12 October 2018, PN79 - PN80.
[8] Re Medicaments and Related Classes of Goods (No 2) [2000] EWCA Civ 350; [2001] 1 WLR 700 at [37] - [39].
[9] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2001) 205 CLR 337 at 344.
[10] Groves M, The Rule Against Bias [2009] Monash University Law Research Series UMonashLRS 10, p. 4-5 citing Sun v Minister for Immigration and Ethic Affairs [1997] FCA 1488; (1997) 151 ALR 505 at 551-552.
[17] Ibid at [34] quoting Mahon v Air New Zealand [1984] 1 AC 808.
[18] Ibid at [44] citing Council of the Municipality of Burwood v Harvey (1995) LGERA 389, 395.
[19] Ibid at [46] citing Carruthers v Connolly [1998] 1 Qd R 339,371.
[20] Groves M, The Rule Against Bias, op cit at 1.
[21] Allesch v Maunz (2000) 203 CLR 172 at 184, per Kirby J.
[23] Ibid at 185, citing Vestry of St James and St John, Clerkenwell v Feary (1890) 24 QBD 703 at 709 per Lord Coleridge CJ; Sydney Corporation v Harris [1912] ArgusLawRp 25; (1912) 14 CLR 1 at 15.
[24] Loretta Woolston v The Uniting Church in Australia Property Trust (Q.) t/a Blue Care Bli Bli Aged Care Facility [2016] FWCFB 278 at [10].
[26] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, [11]; Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288, 293-294; Vakautu v Kelly [1989] HCA 44; (1989) 167 CLR 568; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41.
[27] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352.
[28] Statement of Mr James Challis, 4 October 2018, R5, JC-02.
[30] Statement of Mr Anthony Clarke, 7 September 2019, A1, [18].
[31] Statement of Mr James Challis, 4 October 2018, R5, JC-04.
[37] Statement of Mr Anthony Clarke, 7 September 2018, pg 4.
[48] PN717 - PN730; PN735 - PN753; PN1036 - PN1037.
[49] PN1178 - PN1202; Transcript of interview, Mr Anthony Clarke, 1 June 2018.
[53] Transcript of interview, Mr Anthony Clarke, 1 June 2018, p 17.
[54] Submissions in Reply of Mr Anthony Clarke, 10 October 2018, pg 4.
[76] Statement of Mr James Challis, 4 October 2018, [16]
[85] Outline of submissions for the Respondent, 6 October 2018, [18].
[88] Sayer v Melsteel [2011] FWAFB 7498 at [20].
[89] Submissions of Mr Anthony Clarke, 10 October 2018.
[90] Applicant's closing submissions, 28 October 2018, pg 2.
[92] Applicant's closing submissions in Reply, 10 November 2018, [48].
[93] Applicant's closing submissions in Reply, 10 November 2018, pg 2.
[94] Applicant's closing submissions in Reply, 10 November 2018, pg 2.
[95] Applicant's closing submissions in Reply, 10 November 2018, [80].
[96] Applicant's closing submissions, 28 October 2018, pg 1.
[98] Submissions of Mr Anthony Clarke, 10 October 2018.
[99] Applicant's closing submissions in Reply, 10 November 2018, [77].
[100] Submissions of Mr Anthony Clarke, 10 October 2018; Applicant's closing submissions in Reply, 10 November 2018, [102].
[101] Applicant's closing submissions in Reply, 10 November 2018, pg 1.
[102] Applicant's closing submissions in Reply, 10 November 2018, [24] - [25].
[106] Respondent's closing submissions, 6 November 2018, [118].
[107] Selvachandran v Petron Plastic Pty Ltd [1995] IRCA 333; (1996) 62 IR 371, 373.
[110] Toll Workplace Behaviours Standard, 1 March 2013, p 8.
[111] Toll Inappropriate Behaviour in the Workplace Policy, July 2013, p 5.
[112] Respondent's closing submissions, 6 November 2018, [52].
[113] Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
[114] Respondent's closing submissions, 6 November 2018, [122](c).
[115] Respondent's closing submissions, 6 November 2018, [109].
[116] Appellant v Respondent Print R1221 (AIRCFB, MacBean SDP, Duncan SDP, Deegan C, 1 February 1999), [(1999) 89 IR 407 at p. 416]
[117] Rose v Telstra Corporation Limited Print Q9292 (AIRC, Ross VP, 4 December 1998).
[118] Transcript of interview, Mr Robert Torres, 8 June 2018, p 3 - 4.
Printed by authority of the Commonwealth Government Printer
Mr Anthony Clarke
Toll Transport Pty Ltd T/A Toll Transport [2019] FWC 606
(1999) 89 IR 407
(2000) 205 CLR 337
(2001) 205 CLR 337
(1997) 151 ALR 505
(2000) 203 CLR 172
(1912) 14 CLR 1
(2004) 134 IR 379
(2000) 201 CLR 488
(1983) 151 CLR 288
(1989) 167 CLR 568
(1994) 181 CLR 41
(1986) 161 CLR 342
(1995) 185 CLR 410
(1996) 62 IR 371
(2000) 98 IR 233