Fair Work Commission|2025-09-24

Mr Leslie Walsh v Northern SEQ Distributor - Retail Authority Trading AS Unitywater [2025] FWC 2853 (24 September 2025)

s.394 - Application for unfair dismissal remedy

Northern SEQ Distributor - Retail Authority Trading AS Unitywater

Application for an unfair dismissal remedy - no valid reason - dismissal found to be harsh, unjust and unreasonable - reinstatement awarded - continuity of employment and compensation for lost pay awarded

[1] Mr Leslie John Walsh had been an employee of Northern SEQ Distributor - Retailer Authority T/As Unitywater (Unitywater) since 1998. On 9 January 2025, following an investigation and show cause process, Mr Walsh was dismissed with immediate effect on the grounds of misconduct.

[2] The circumstances of Mr Walsh's dismissal relate to his alleged conduct following the announcement that a newly appointed team member had been successful in obtaining a promotion to the position of Senior Sampling Officer (SSO).

[3] Mr Walsh submits that Unitywater did not have a valid reason for the termination of his employment, arguing in the alternative, that Unitywater's decision to dismiss him was harsh, unjust and unreasonable. Mr Walsh seeks reinstatement to his former position, continuity of employment and compensation for lost pay.

[4] For the reasons outlined below I have not found that Unitywater had a valid reason to dismiss Mr Walsh. Further, having considered all other relevant factors, I have determined that the decision to dismiss him was harsh, unjust and unreasonable. I have made orders for his reinstatement, continuity of employment and compensation for lost pay.

[5] Mr Walsh's colleague, Mr Keneth Bowler was dismissed by Unitywater for similar alleged conduct in relation to the same set of circumstances. Mr Walsh has also filed an unfair dismissal application. The parties agreed that as both applications arise from broadly the same factual events, there would be common factual and legal issues arising in both matters. As such, the parties sought, and I agreed, that the matters be dealt with via a joint hearing, noting that each matter would be determined on its own merits. This decision will deal with Mr Walsh's application only.

[6] Following an unsuccessful joint conciliation conference, both matters proceeded to hearing on 2 to 5 June 2025. At the hearing, Mr Walsh was represented by Mr Geoff Taylor, of the Australian Workers' Union (AWU) and Unitywater by Ms Clare O'Connor of Counsel. Both parties filed written submissions and witness statements. Mr Walsh gave evidence in support of his application, as did Mr Bowler. The following witnesses gave evidence on behalf of Unitywater:
- Ms Amy Kelly (Human Resources Business Partner in the People, Culture and Safety business unit).
- Mr Kenan Hibberd (Executive General Manager People and Corporate Services).
- Ms Brareen Deo (Analyst).
- Ms Dawn Hadfield (Microbiology Supervisor).
- Ms Donna Nicholson (Laboratory Sampling Supervisor).
- Mr Jerome Somodio (Analyst).
- Ms Mikaela Pohlner (Senior Sampling Officer).
- Mr Russell Kerkow (Recycled Water Scheme Coordinator).
- Mr Walter Chitsike (Laboratory Chemistry Supervisor).

a) Mr Walsh was dismissed on 9 January 2025;

b) Mr Walsh was protected from unfair dismissal for the purposes of section 382 of The Act;

c) The 'Small Business Fair Dismissal Code' does not apply to Unitywater; and

d) The termination of Mr Walsh's employment was not a case of 'genuine redundancy' for the purposes of section 385(d) of the FW Act.

[8] I am satisfied that Mr Walsh was protected from unfair dismissal at the time he was dismissed.[1]

[9] Mr Walsh had been employed by Unitywater, and its predecessors, since around 1998.[2] He performed various roles with Unitywater before being appointed to the role of Sampling Officer in 2020. Mr Walsh is 58 years of age and submits that he has had 27 years of service with Unitywater and its predecessors.

[10] In 2012, Mr Walsh received a formal warning relating to behaviour at a training session. In 2013, Mr Walsh received a second and final formal written warning relating to failures to treat all colleagues with respect, fairness, sensitivity, dignity, and failures to adhere to Unitywater's Code of Conduct. During cross examination, Mr Walsh explained mitigating circumstances that were occurring in his personal life at the time, and noted that no such issues have arisen since that time. In the show cause letter sent to Mr Walsh dated 13 December 2024 Unitywater note that as these disciplinary matters were more than 10 years old, they would not be taken into account when determining what disciplinary action was to be taken in this matter.[3]

Employment relationship and relevant policies and procedures

[11] Mr Walsh's employment at all material times was covered by the Unitywater Water Industry Indoor/Salaried Staff Employees Enterprise Agreement No. 3 (the Agreement).

[12] Mr Walsh's contract of employment requires that he "at all times complies with Unitwater's policies and procedures, including in accordance with the standards of conduct set out in the Unity Water Code of Conduct (as varied from time to time)". Mr Walsh's conduct was found to have breached:

(a) Unitywater's Code of Conduct (the Code) - Principal 1: Integrity and impartiality

"In recognition of the public trust placed in Unitywater, you are expected at all times

(a) Conduct business in observance of the highest ethical standards...

(d) Demonstrate a high standard of workplace behaviour and personal conduct; and

(e) Demonstrate respect for other Unitywater employees, officers and stakeholders".

(b) Discrimination, Bullying and Sexual Harassment Policy (the Policy)

It is the responsibility of all Unitywater team members, to ensure that the workplace is free from discrimination, bullying and sexual harassment.

It is the responsibility of all Unitywater team members to be professional in their own behaviour and respect the rights of other team members, clients and members of the community."

[13] There is no dispute that Mr Walsh had attended a number of training sessions since 2018 that may have dealt with the relevant policies and that such training was undertaken through the completion of modules within the "ULearn" system. The parties disagree as to the adequacy of the training provided. Unitywater suggest that Mr Walsh's completion of this training demonstrates that he had been trained in, and should have been fully aware of, his obligations arising from the above policies.

[14] Unitywater did not lead any evidence as to the specific content of the modules completed by Mr Walsh, nor did they contest his evidence that:

the training he received did not go through the relevant policies line by line;
that he could not recall that any of the scenarios described in the training related to the particular circumstances of this matter.

[15] In closing submissions, Ms O'Connor submitted:

"There had, of course, been training in relation to these issues broadly. It's never possible to train someone on a specific scenario that might eventuate, but nor should it be necessary to provide any specific training about not making derogatory racial slurs about your manager. Not calling a colleague a liar in the middle of the office. I mean, those are things that are so obvious in my submission that whether or not training occurred, it would have been plainly obvious to each of these applicants that that's just not how they can operate in that environment."

[16] The role of Sampling Officer (SO) is a part of the Sustainable Infrastructure Solutions (SIS) team. Prior to 7 November 2024, Mr Walsh was one of seven SO's, reporting to the Laboratory Sampling Supervisor, Ms Donna Nicholson. Ms Nicholson reported to the Laboratory Manager, Mr Habibur Rahman.[4]

[17] Given the circumstances of this matter, it is relevant to note that at the time, six of the seven team members were male, with an average age of "between 50 and 60" and that a number of them, including Mr Walsh had significant lengths of service with Unitywater. Again, in the circumstances, it is relevant that, in stark contrast to the rest of the team, Ms Pohlner was 24 years of age and was still in her probationary period, having only been employed by Unitywater for approximately six weeks.

[18] In or around October 2024, Unitywater advertised the newly created SSO role. The role was classified as a level 4. Importantly, the position description describes the SSO role's key functions as assisting the Laboratory Sampling Supervisor with the "supervision and management of the activities of the sampling team members" and "training of staff, preparation of training programs and monitoring work outcomes".[5] There is no dispute that the position was senior to the SO's.

[19] Mr Walsh did not apply for the role however he was aware that his colleagues Mr Bowler and Mr Michale Ewin had applied for and been interviewed for the position. Relevantly, it was Mr Bowler's evidence that when the SSO position was announced, he thought his colleague Mr Ewin was a prime candidate for the new position, as he often stepped up when Ms Nicholson was away and was seen as a mentor to many sampling officers due to his years of experience. Mr Bowler contends that even though he had considered Mr Ewin was the most likely candidate for appointment to the position, he decided to apply to demonstrate to Unitywater that the SOs saw the role as a serious promotional opportunity to aspire to in the future. I have taken this to be a view that was shared by Mr Walsh.

[20] During her oral evidence, Ms Kelly confirmed that the SSO position was advertised internally, and as such, only employees of Unitywater could apply.[6] Mr Walsh maintained throughout the investigation, his understanding that probationary employees were exempt from applying for internally advertised promotional positions.

[21] Mr Walsh recalled having asked Ms Pohlner on both 23 September and 17 October 2024 if she was applying for the SSO position and recalls that she had told him "no, she wasn't applying because she hadn't been here long enough and she needed more training an experience". Ms Pohlner disputes having ever had a discussion with Mr Walsh in which she disclosed if she did or did not intend to apply for the position:

"So you never talked about yourself applying or not applying for the job with either of them?---Correct."[7]

[22] During cross examination however, Ms O'Connor seemed to accept that Mr Walsh had asked these questions of Ms Pohlner as her questions to Mr Walsh focussed on why Mr Walsh thought it was appropriate to ask such questions and why Ms Pohlner may not have provided an "honest" answer:

"So and you explain there that you'd asked her a number of times if she'd applied

for the position, and she told you that she had not?---Yes."[8]

"Just because you've decided to ask her for some confidential information, does

that mean she had to give you the honest answer, did it?---No."[9]

Ms Pohlner is announced as successful candidate

[23] At 11:25am on 7 November 2024, Mr Rahman sent a team-wide message to the SEC Scientific Service team advising that Ms Pohlner had been appointed to the SSO role.

[24] Shortly after, Mr Walsh and Mr Bowler were overheard in the hallway discussing the appointment. It was alleged that in the presence of Mr Kerkow, Mr Somodia and Ms Hadfield, Mr Walsh made a range of "offensive, intimidating and unprofessional remarks".

[25] Mr Walsh accepts that he and Mr Bowler did have a conversation in the hallway and that the discussion was animated due to the two men having just received the email notifying of Ms Pohler's appointment which had taken them by surprise.

[26] Mr Kerkow recalls that he heard Mr Walsh and Mr Bowler speaking loudly and that they made "comments to the following effect":

a) "Someone in there who's only been here for 6 weeks has got this role";

b) "She lied to us";

c) "We asked if she'd gone for it, she said she hadn't";

d) "Not fucking happy";

e) "She fucking lied to us";

f) "She's only been here 6 weeks, shouldn't have gone for it"; and

g) "There had been a recruitment process and Mikaela had lied about going for the role and Mikaela had got it".

[27] Mr Walsh denied that he made some of these specific statements, accepting that he had made others. Mr Walsh accepts that he made comments along the lines of:[10]

a) "She lied to me";

b) "I asked if she'd gone for it, she said she hadn't";

c) "Not fucking happy";

d) "She fucking lied to me";

e) "She's only been here six weeks, shouldn't have gone for it;

f) "There had been a recruitment process and Mikaela had lied about going for the role and Mikaela had got it". (Mr Walsh however dispute this comment was made in the hallway, rather he recalls it was said directly to Mr Kerkow in the office)

[28] Shortly after Mr Walsh and Mr Bowler approached Ms Hadfield's desk. Ms Hadfield's desk is situated near Ms Maddison McNee. The evidence of Ms Hadfield and Mr Kerkow is consistent to the extent that Mr Walsh and Mr Bowler appear to have continued to make statements similar to those listed above. Ms Hadfield recalls that as Mr Walsh approached her desk, Mr Walsh stated "It's a fucking joke" in a very angry tone of voice".[11]

[29] Ms Hadfield recalls that Mr Walsh then made the following statements to her and Ms McNee:

"It's a fucking joke, it's fucking bullshit, have you heard about the L4? They've given it to someone with no experience and they're still on probation and they're new" ; and

"I'm fucking done, I'm not helping her, I'm not helping her with anything - I'm done."

[30] Mr Walsh recalls making the first statement, but says it was made to Mr Kerkow who had asked him if he was ok.[12] It is Mr Walsh's evidence that he did not make the second statement as alleged, but concedes that he may have said words to the effect of "They've given it to someone with no experience, and they are still on probation and they are new". Mr Walsh rejects that he said "I'm fucking done, I'm not helping her with anything else - I'm done" or similar.[13] However Mr Walsh did note in his 21 November 2024 response that he did say words to the effect that "I will not be able to help train her because the new position is meant to be training us as the lead sampler".

[31] Ms Hadfield then says that Mr Walsh stated words to the effect that he hated Mr Rahman, before stating "He's a greezy......". It was Ms Hadfield's evidence that as Mr Walsh commenced making this statement, she put her hand up to signal he should stop, "as she thought he was about to make a racial slur".[14] Mr Walsh denies saying that he hated Mr Rahman or that he referred to Mr Rahman as "greasy" or anything similar.[15] Mr Walsh also refutes the suggestion that Ms Hadfield said anything to him or put her hand up as described to stop him saying anything.

[32] The conversation came to an end with Mr Bowler stating that he was going to lodge a grievance with the Union. At 12:01pm, Ms Hadfield sent an email to Ms Nicholson in which she states:[16]

Just a heads up that Les and Ken B are not very happy at all. Les has said he is not helping her at all and Ken B is going to the union.

Just thought you should know. It is pretty sad really because Mikaela hasn't done anything wrong."

Conversation between Ms Nicholson and Ms Hadfield.

[33] It is Ms Nicholson's evidence that having received Ms Hadfield's email, she walked to Ms Hadfield's desk where she was advised that Mr Walsh had said words to the following effect in front of Mr Kerkow and her:[17]

a) "I'm not going to train her"';

b) "I hate Unitywater"';

c) "Habib is a greasy black (something)"; and

d) "I'm going to the union".

[34] Having received Ms Hadfield's email, Ms Nicolson sought out Mr Walsh. It is Ms Nicholson's evidence that they discussed why he was upset and stated that she was disappointed that he had acted that way in front of his colleagues and indicated that she was "so annoyed and angry" with Mr Walsh.[18]

[35] By Ms Nicholson's account, they discussed why he felt the way he did and that Mr Walsh referred to the appointment as a "slap in the face" for Michael Ewin". Ms Nicholson says that she explained the process and that Ms Pohlner had performed the best during the interview and was the best candidate. Ms Nicholson said that Mr Bowler said "I'm sorry but I'm only apologising to you, I'm not apologising to anyone else".[19]

[36] It was Ms Nicholson's evidence that she spoke to Mr Walsh because she felt he was acting as if Ms Pohlner had done something wrong, and she wanted to be sure that he did not confront Ms Pohlner or make her working life difficult by acting inappropriately towards her. When recalling this conversation, Ms Nicholson makes no mention of having raised the alleged comment about Mr Rahman, nor that she felt it necessary to warn him that any of his conduct may have been in breach of the Code or the Policy.[20]

[37] Mr Walsh recalls the conversation, noting that Ms Nicholson made no reference to the comment he was alleged to have made about Mr Rahman. Mr Walsh recalls that he apologised to Ms Nicholson and said words to the effect of "I would apologise to most of the people involved".[21]

[38] It is Mr Kerkow's evidence that shortly after, he was on the back deck having lunch with Mr Rahman. Mr Kerkow recalls that Mr Walsh and Mr Bowler were sitting approximately five meters away from them, having a private conversation. Mr Kerkow was not a party to this conversation however he recalls overhearing both men making comments about Ms Pohlner's appointment in an angry and aggressive tone.[22] Mr Kerkow could not recall who said what, but recalls overhearing the comment "If you're the apprentice and you have a tradesman, you can't give the apprentice the job".[23]

[39] Mr Somodio, who was also on the deck having his lunch recalls a discussion with Mr Walsh. Mr Somodio recalls that Mr Walsh appeared very frustrated when he asked "Have you heard of the announcement?" before saying words to the effect of:[24]

"How can you appoint her as a senior officer when you're still on probation?"

"I'm taking her out onto a new field to a new site, I'm not going to train her."

[40] Shortly after this interaction, Mr Somodio recalls Mr Ken Knyyett coming out and saying to him "I spoke to Habib; I warned him this may happen".

[41] Mr Walsh denies making the express comment overheard by Mr Kerkow but does recall making a comment about an "apprentice training a tradesman" in his earlier conversation with Mr Kerkow inside.[25]

[42] With respect to the comments recalled by Mr Somodio, Mr Walsh agrees that he was frustrated, but notes that his comments were directed at the process, not Ms Pohlner personally. As to comments regarding training, Mr Walsh contends that he actually said words to the effect that "she should have enough knowledge to do the job".[26]

[43] It is Ms Pohlner's evidence that after arriving at the office with Mr Bowler, Mr Bowler walked toward Mr Walsh who was also in the carpark. It is Ms Pohlner's evidence that as she walked past, Mr Walsh ignored her greeting, and "just glared in my direction".[27]

[44] Mr Walsh agrees that he was in the carpark at that time, but says he did not see Ms Pohlner at all. Mr Walsh says that he arrived in the carpark at around 6.30am that morning, before grabbing his lunch and safety gear and placing it next to Mr Ewin's ute, which was parked next to Mr Bowler's. Mr Walsh then walked into the mini lab where he saw Mr Bowler and Mr Ewin preparing for the day. Mr Walsh says that around 6.40am he and Mr Ewin went outside together, loaded their car and left for the day.[28]

[45] It is Mr Bowler's evidence that after parking his ute, Ms Pohlner entered the building and he followed shortly after. Mr Bowler says he did not see anyone other than he and Ms Pohlner in the carpark, and recalls that some time after he and Ms Pohlner had arrived, he saw Mr Walsh enter the lab as described above.[29]

[46] Ms Kellie O'Meley had been absent from work on the 7 and 8 November 2024. She recalls that on returning to work on Monday 11 November 2024, she exchanged morning greetings with Mr Walsh and Mr Ewin, after which Mr Walsh said words to the effect of "have you heard about the L4".... "Mikaela got it". Ms O'Meley recalls that Ms Pohlner arrived shortly after and Ms O'Meley congratulated her on her appointment. Once Ms Pohlner left, Ms O'Meley recalls Mr Walsh saying words to the effect of "your congratulating her?" and "she lied because she said she wasn't going for the job. She's not been here for long".

[47] It was Mr Walsh's evidence that he started the conversation with the question "have you congratulated her?". He accepts that he made the next comment as recalled by Ms O'Meley, but that he also said, that "she needed more experience".[30]

Ms Nicholson seeks assistance from Unitywater's Human Resources Department

[48] At 2:22pm that same day, Ms Nicholson sent a Teams message to Ms Jess Larkin and Ms Kelly in HR. the message read as follows:

[49] It is Ms Nicholson's evidence that at 2:44pm she received a call from Ms Kelly. Following the conversation, Ms Kelly asked that she send her concerns via email so that she could see them in writing.

[50] At 3:50pm Ms Nicholson sent the following email to Ms Kelly:

[51] The following morning, 12 November 2024, Ms Kelly arranged a meeting with her colleagues Ms Zoe Penman and Ms Larkin, in which it was agreed that Ms Kelly would run an investigation into the alleged behaviour of Mr Walsh, Mr Bowler and Mr Ewin as outlined in Ms Nicholson's email.

[52] At around 12:30pm that same day, Ms Kelly called Ms Pohlner to advise that she was aware of some concerns regarding the conduct of Mr Walsh and his colleagues. Ms Pohlner was advised that if she had any concerns, they should be put in writing and would be dealt with under Unitywater's usual processes. It is Ms Pohlner's evidence that Ms Kelly also said to her words to the effect that:[31]

"(a) What I had experienced was a big deal. Unitywater did not condone that kind of behaviour. Was I ok?

(b) There were three options available to me to deal with the situation. The first was to have a conversation with Mr Bowler directly about his conduct. The second option was to have a conversation with Mr Bowler and Ms Nicholson about Mr Bowler's conduct. The third option was for me to make a formal complaint."

[53] Shortly after this discussion, at 12:44pm Ms Larkin sent a Teams message to Ms Nicholson seeking a time for a discussion. At 1:44pm Ms Larkin advised that Ms Kelly would reach out to her later that afternoon, and would be "working from the labs tomorrow to support". The exchanges read:

[54] Ms Nicholson does not reference the above exchange in her statement. Rather, Ms Nicholson suggests that it was not until 5:25pm that same day, that she received a call from Ms Kelly advising that Ms Pohlner had made a formal complaint, and a formal investigation would be undertaken. At 5:33pm, Ms Nicholson says she received another call from Ms Kelly, in which Ms Kelly confirmed that Mr Walsh and two of his colleagues were each required to attend a meeting the following day with Mr Basterfield, Executive Manager Sustainable Infrastructure Solutions, at which the three men would be stood down. Ms Nicholson was asked to make arrangements for Mr Walsh and his colleagues to be in the office in time for their scheduled meetings.

[55] Ms Pohlner says that she decided she should make a formal complaint because she considered that Mr Walsh and his colleagues were not likely to change their behaviour unless she took steps to stop it. At 6:21pm that evening Ms Pohlner's sent Ms Kelly an email confirming that she wished to make a formal complaint. Attached to this email was a copy of her "SSO Minutes" document, which she says was a contemporaneous record of the events over the past few days. Curiously, this email was sent more than an hour after Ms Kelly advised Ms Nicholson that a formal complaint had been received, and around 4 hours after the above Teams messages were exchanged between Ms Larkin and Ms Nicholson in which the decision to stand Mr Walsh down had already been made.

[56] The following day, 13 November 2024, Ms Nicholson called Mr Walsh to advise him that he was required to attend a meeting with Ms Kelly and Mr Basterfield. At 11:00am that same day Mr Walsh was advised that he did not need to bring his union representative to the meeting.

[57] At the meeting, Mr Walsh was provided a letter titled "Private and confidential - Stand Down Advice". The letter confirmed that as a result of receiving a "report of serious concern" Mr Walsh was stood down of full pay until the matter was resolved and that Ms Kelly would be in contact to discuss next steps in the process.

[58] It is Ms Kelly's evidence that around midday, she participated in a Teams meeting with Ms Larkin and Ms Maddy Ballan, People Advisor, in which they commenced the process of drafting the allegation letter to be put to Mr Walsh, "based on the complaint received by Ms Nicholson and Ms Pohlner".

[59] Between 13 and 14 November 2024, Ms Kelly conducted interviews with employees who may have witnessed the events the subject of the complaints. The evidence suggests that each of the interviews were conducted by way of the interviewee being asked a series of prepared questions. The questions asked varied depending on the event the interviewee was thought to have witnessed, but most included variations of the following:

Do you recall witnessing any inappropriate behaviour on .......
Have you witnessed or heard any inappropriate behaviours since?
Who else witnessed it?
What did you do?
Can you describe any behaviours observed that could be seen as repeated, intimidating or undermining?
Have you personally observed exclusionary behaviours, such as ignoring greetings or comments that could be interpreted as undermining?

[60] During the interviews, Ms Kelly took handwritten notes, which she later formatted as a record of interview. It is of note that the responses are not recorded against a corresponding question, rather, they are simply provided as a list of dot point statements and observations.

[61] Having concluded the interviews, Ms Kelly sent each interviewee a copy of their record of interview, seeking they confirm its accuracy. Several of the interviewees provided amendments, which were made as requested.

[62] Ms Pohlner's interview was conducted at 2:00pm on 14 November 2024. Ms Pohlner's interview appears to have been conducted in a similar format to the other interviewees.

[63] Ms Pohlner was asked the following questions relevant to Mr Walsh's alleged conduct:

"- Have you encountered exclusionary behaviours from team members prior to your appointment in the role of Senior Sampling Officer? (e.g., ignored greetings, reluctance to collaborate)?

- Did any team members, besides Ken, make statements or insinuations that you should not have applied or accepted this role?"

[64] On 15 November 2024, Ms Kelly sent an email to Mr Walsh titled "formal Meeting Notification - Monday 18 November". The letter required his attendance at a meeting with Ms Kelly and Mr Basterfield to discuss the next steps in the process.

[65] 18 November 2024, Mr Walsh attended a meeting during which he was handed a letter advising him that the "workplace concerns" were now being formally investigated in line with Unitywater's Grievance Procedure.

[66] Attached to the letter as "Schedule A" was a table noting a single allegation of "Offensive, Intimidating, and Unprofessional Conduct". Within this allegation, the following was provided:

"Allegation: Offensive, Intimidating, and Unprofessional Conduct

It is alleged that between the end of September 2024 and 11 November 2024, at various locations within the Southern Service Centre, Mr. Leslie Walsh, Sampling Officer, engaged in a series of offensive, intimidating, and unprofessional behaviours repeatedly toward colleague, Ms. Mikaela Pohlner, Senior Sampling Officer, and others.

On or around the end of September to the middle of October 2024, during a workplace discussion, in the presence Ms Mikaela Pohlner, Mr. Walsh allegedly referred to his manager, Habibur Rahman, using discriminatory and offensive language, saying words to the effect of:

On or around 12:30pm on Thursday, 7 November 2024, in the hallway between the laboratories and on the back deck at the Southern Service Centre, in the

presence of Russell Kerkow, Dawn Hadfield and Jerome Somodio, Mr. Walsh allegedly made the following statements:

• "I hate Habib, he's a greasy [derogatory term]."

• "It's a fucking joke, it's fucking bullshit, have you heard about the L4?"

• "She shouldn't have applied as she doesn't know what she's doing."

On or around 6:30am on Friday, 8 November 2024, in the car park at the Southern Service Centre, in the presence of Mr Kenneth Bowler, Mr. Walsh allegedly:

On or around 6.30am on Monday 11 November 2024, in the office at the Southern Service Centre, in the presence of Kellie O'Meley and Michael Ewin, Mr

• "she lied to me...she lied because she said she wasn't going for the job".

[67] Mr Walsh was advised that this conduct may constitute breaches of his employment agreement, the Code and the Policy.

[68] Mr Walsh was required to respond to the allegations in writing by 20 November 2024 and invited to attend a further meeting with Ms Kelly and Mr Basterfield on the 25 November 2024. It was noted that Mr Walsh could bring a support person to the meeting.

[69] On 21 November 2024, Mr Michael Anderson, Organiser with the AWU, provided a response on behalf of Mr Walsh. Mr Anderson noted that the AWU had sought an extension until 25 November 2024, to enable them to assist Mr Walsh to provide a comprehensive and thorough response. An extension to the 21st was granted. Mr Anderson noted that Mr Walsh's response would not be as comprehensive as it could have been had they been given a "reasonable amount of time in which to work with him to provide a written response".

[70] In short summary, Mr Walsh denied making many of the specific statements attributed to him, but did accept some. In other cases, he provided his explanation of what he recalled he had said and why he had said it. Mr Walsh concludes by stating that he has been deeply upset by what has happened and saddened to think that this has damaged "the trust and honesty we had in the process and our unit "family". The response ended noting his commitment to his role, that he would welcome the opportunity for further training, and that he wanted to come back and work as a team to "get us all back on track".

[71] On 25 November 2024, Mr Walsh, supported by Mr Anderson, attended an interview with Ms Kelly and Mr Basterfield. During the interview, Ms Kelly took handwritten notes, which she later formatted as a record of interview. Mr Walsh's record of interview follows the same format as other interviews conducted. Under the heading "Questions" is a list of the specific questions asked. The responses follow, listed in dot point form.

[72] Mr Walsh was asked the following questions during his interview:

Although you have denied referring to Habib as mini-Hitler, you have stated you referred to him as a "little hit man" in the context of him wanting to get his own way. It is alleged this statement was made by you before the recruitment process had even commenced why do you think you would have made that comment?
Do you think it's appropriate to talk about a leader in this way?
You haven't denied that you said "not happy Jan, this is unfair" do you think this comment was intimidating?
Do you think its unprofessional? Do you think it's in line with UW behavioural expectations?
In your written response you state you do not recall saying "you hate Habib he's a greasy" even though you do not recall it, we have witness statements who advise they witnessed this. Do you think this behaviour is acceptable? Do you think comments like this are intimidating or offensive?
In your written response "I will not be able to help train her because the new position is meant to be training us as the lead sampler"- when you say this, if Ms Pohlner had asked a question that you did know the answer to, would you have helped her?
You've admitted in your written response that you had responded that you had responded to Mr Kerkow's question of "are you ok" comment with "not happy Jan, this is unfair". You've also admitted that you said "it's a fucking joke, it's fucking bullshit" to the same question. Do you think this behaviour is intimidating or offensive?
In your written response you have admitted that you called Ms Pohlner a liar regardless of whether you believe it to be factual do you think this behaviour is appropriate? Do you think it offensive or intimidating?
Do you think the behaviour is in line with UW behavioural expectations?
In your written response you have admitted you said "she shouldn't have applied she doesn't know what she's doing' what was your intent in saying this?
In your statement you've written that you're not sure what 'glaring at Ms Pohlner in an intimidating manner" refers to for clarity, this is relating to when Ms Pohlner and Mr Bowler arrived together in a UW ute on Friday 8
November. Do you recall them arriving at work that day? Do you recall glaring?
What do you mean by "old school"?

[73] Ms Kelly took notes during the interview and these were sent to Mr Walsh. Mr Walsh confirmed via reply email dated 27 November 2024, that he was happy to move forward with the notes as provided.

[74] Having undertaken one interview with each witness, Ms Kelly moved to finalise her investigation report. The report noted that an "evidence-based investigation" was conducted into the concerns which needed to be addressed by Unitywater, including any potential breaches of the Code, policies, procedures, guidelines etc.

[75] The report then notes that "having considered the evidence, the following finding is made:[32]

On the balance of probabilities, the allegation was found to be Substantiated. The investigator found that Mr WALSH engaged in a series of offensive, intimidating and unprofessional behaviours.

Mr WALSH confirmed in his response that he did make a number of these statements, or words to that effect and multiple witnesses also observed Mr WALSH's behaviour."

[76] Under the heading "Risk Analysis", Ms Kelly states that "the investigator found that Mr Walsh behaved in an offensive, intimidating and unprofessional manner on multiple occasions. She then referenced case law relating to instances of bullying behaviour being found to have been serious misconduct before going on to find:[33]

"In conclusion, the investigator found that Mr WALSH'S behaviour constituted serious misconduct and that there is a high risk of the behaviour continuing. The investigator also found that Mr WALSH'S behaviour poses a serious risk to the health and safety of Unitywater team members and believes the risk will increase over time".

[77] Under the heading "Final Summary and Key Conclusions" the report confirms that Mr Walsh has been found to have "behaved in an offensive, intimidating and unprofessional manner on multiple occasions". The report then goes on to discuss a range of further matters, and what could best be described as observations including:

"Although Mr WALSH did not make any inappropriate comments to Ms POHLNER, the investigator found the repeated aggressive and intimidating nature of his behaviour to be significant."

"The investigator found Mr WALSH had reflected and thought that his conduct was inappropriate, and the investigator thought for the most part, Mr WALSH was apologetic for his behaviour."

"Mr Walsh's alleged conduct represents a sustained and deliberate pattern of behaviour intended to demean and undermine Ms Pohlner's authority and credibility in her new role as Senior Sampling Officer."

[78] In conclusion, the investigator found that Mr Walsh's behaviour constituted serious misconduct and that there is a high risk of the behaviour continuing. As such, the investigator also found that Mr Walsh's behaviour poses a serious risk to the health and safety of Unitywater team members. It was recommended that Mr Basterfield consider the findings and observations in the report and any further action, and that the general findings be communicated to Mr Walsh.

[79] On 4 December 2024, Mr Walsh was issued a show cause letter. The letter advised that the investigation had been completed and that the allegation had been substantiated, with the investigator making the following additional "factual findings" regarding Mr Walsh's conduct:[34]

"You have made a number of offensive and inappropriate remarks about Ms Pohlner and Mr Rahman in front of multiple witnesses, The behaviour displayed by you in these examples demonstrates a repeated pattern of unreasonable behaviour and a disregard for Unitywater's behavioural expectations.
Your behaviour has been found to show disregard for Ms Pohlner and Mr Rahman by discrediting their character in front of peers and direct reports.
You demonstrated unprofessional and intimidating behaviour in an open office environment on a number of occasions. This behaviour intimidated multiple Unitywater team members and created a negative working environment for observers."

[80] Mr Walsh was further advised that, in view of the substantiated allegations, and the conclusion arising from the investigation, that his conduct was in breach of the Code, the Policy and his employment contract.

[81] Mr Walsh was advised that these findings and breaches were very serious and as such, Unitywater was considering the termination of his employment. Mr Walsh was invited to show cause as to why he should not be terminated by 6 December 2024 and required to attend a meeting to discuss his response on 9 December 2024.

[82] Following an exchange of emails between Mr Kelly and Mr Anderon, Mr Walsh was provided an extension of time to provide his response by 9 December 2024 and the meeting was rescheduled for 12 December 2024.

[83] Mr Anderson provided a response on behalf of Mr Walsh on 9 December 2024. The response raises a range of factors that he says ought to be taken into account when considering whether the termination of Mr Walsh's employment is just, fair, and reasonable. These included Mr Walsh's age, his years of service, that he had no history of disciplinary action and the difficulties he would encounter finding alternative employment. The response then goes on to note:[35]

"Mr Walsh's intentions were not to cause any harm, and he is deeply sorry for his part in this incident and is remorseful that this has been used to terminate him. He believes he can show that this is not how he would normally behave. He recognises he was wrong and can work on becoming a better employee if given the chance."

[84] The remainder of the response can be summarised as follows:

There has been very little validation shown for the substantiation of the allegations, even if substantiated, the allegations either individually or collectively would not provide valid, evidentiary reason for his dismissal
A range of witnesses where not interviewed
Mr Walsh was not provided any witness statements, or the investigation report
There is no evidence of "repeated behaviour" or that he had "on repeated occasions, acted in an unprofessional and intimidating manner"
Some of the alleged conduct is admitted, but does not support termination
It was reasonable for Mr Walsh to have been upset about a recruitment process that did not appear to him to have been fair and equitable.

[85] On 13 December 2024 Mr Bowler received further correspondence signed by Mr Basterfield in which Unitywater sought to respond to the AWU's above assertion regarding evidentiary reasons for termination. In response to the assertion that Mr Walsh had not faced disciplinary action, Unitywater advised that Mr Walsh had in fact received a written warning in 2012 and a second written warning in 2013, however, as noted earlier, as these matters were over ten years old, they would not be taken into account.[36] Mr Walsh was provided until 20 December 2024 to present any relevant material or considerations which might demonstrate why Unitywater should not terminate his employment.

[86] On 20 December 2024 Mr Anderson provided a further response. Within this response, Mr Walsh directly addresses Unitywater. Mr Walsh apologises for the oversight with respect to his previous disciplinary warnings, and explains the personal circumstances at the time before thanking Unitywater for not including these previous actions in their decision.

[87] Mr Walsh addresses the significant impact that a decision to dismiss him would have, before making the following statement:[37]

"I recognise that I need to take responsibility for my actions and what I say, and I would like to apologise for calling Mr Rhaman a "little hit man." Even though at the time, I believed there was nothing wrong with saying it as I was using in as a positive remark in that he gets the job done. I can understand I should not have said it as the person or people who heard it may not have the same thought on what I was thinking and meaning

it to be. I know now not to say anything that could make people upset."

[88] Mr Anderson then goes on to dispute the conclusion that the substantiated conduct would meet the standard of serious misconduct. It is noted that a disciplinary penalty may be appropriate but again stated that a decision to terminate Mr Walsh's employment would be harsh.[38] In the alternative, Mr Walsh suggests that other disciplinary action, such as training or re-training, a move to another unit, and/or providing a written apology to the affected colleagues would be more appropriate.

[89] On 6 January 2024, Mr Walsh received correspondence from Mr Hibberd, titled "termination of your employment with Unitywater". Mr Walsh was advised that the allegation of "misconduct" had been substantiated against him and that as a result he had been found to have variously breached Unitywater's Code of Conduct, Unitywater's Discrimination, Bullying and Sexual Harassment Policy, and his employment contract.[39]

[90] The correspondence goes on to suggest that Mr Walsh has "inserted himself into a situation you had no business involving yourself in", and that he had "on multiple occasions behaved disgracefully towards a colleague".[40] Mr Hibberd goes on to state that the substantiated behaviour was deliberate, and designed to belittle and embarrass Ms Pohlner.

[91] Mr Walsh was advised that his employment was terminated with immediate effect. He was paid five weeks pay in lieu of notice.

[92] The criteria that I must consider when deciding whether Mr Walsh's dismissal was harsh, unjust, or unreasonable are set out at s.387 of the Act. I set out my consideration of each below.

Section 387(a) - Was there a valid reason for the dismissal related to Mr Bowler's capacity or conduct?

[93] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[41] and should not be "capricious, fanciful, spiteful or prejudiced."[42] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[43]

[94] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination.[44] "The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination."[45]

[95] Deputy President Asbury (as she was then) summarised the relevant principles in

relation to an employer's onus of establishing that there was a valid reason for a dismissal on

the balance of probabilities as follows in Mellios v Qantas Airways Limited, which was

confirmed on appeal by the Full Bench:[46]

"[17] In considering whether there is a valid reason for the Applicant's dismissal, I am required to be satisfied on the balance of probabilities that he engaged in the alleged

misconduct or in misconduct to which dismissal was a valid, sound and defensible

response. I must be conscious of the gravity of the allegations and the ramifications for the Applicant if they are made out. However, the standard of proof does not change and the issues in dispute must be determined on the balance of probabilities. Put another way, it must be more probable than not that the Applicant engaged in the relevant misconduct."

[96] I have applied these principles to the matter before me.

[97] Broadly speaking, Mr Walsh denies that the five allegations made against him could reasonably have been substantiated as:

a) some of the alleged conduct did not occur, and Unitywater could

have had no proper basis for concluding that it did;

b) some of the alleged conduct occurred but Unitywater could not

reasonably have found that the conduct amounted to the various

some of the conduct alleged to have occurred was never put to Mr Walsh.

[98] Mr Walsh relies on the responses he provided during the investigation and notes that had these been afforded proper consideration, Unitywater could not have reasonably have made the findings of fact they did.

[99] In closing submissions, Mr Taylor made a number of observations regarding failings in the investigation process and notes that Mr Walsh was forthright to the best of his abilities during the investigation and show cause process but was clearly hamstrung by Unitywater's actions including:

incorrectly claiming that certain witnesses were present for different statements purportedly made during the respective allegations,
incorrectly articulating the actual statements alleged to have been made
failure to provide other significant information such as who was present at each of the alleged events.
failure to interview all relevant witnesses

[100] In summary, it is submitted that Unitywater did not have a valid reason for terminating Mr Walsh's employment as the reasons provided are not 'sound, defensible or well founded'. Noting that it is well established that the absence of a valid reason will almost invariably render the termination unfair, they say the decision to terminate Mr Walsh was accordingly unfair.

[101] Unitywater submit they had a valid reason for dismissing Mr Walsh. They say that, having substantiated each of the sub allegations made against Mr Walsh, it was open to them to conclude that the "substantiated behaviour was not only deliberate, but....it was designed to belittle and embarrass Ms Pohlner".

[102] It is suggested that Mr Walsh's offensive and intimidating behaviour was not only directed towards Ms Pohlner, but had been directed towards his manager Mr Rahman, by describing him as a "mini Hitler" or as he contended, a "little hit man" in the previous months. While Unitywater was prepared to accept it may have been the latter, on either view it was a derogatory term towards his manager. That was not isolated conduct, because he had also stated in front of at least one other colleague, "I hate Habib, he's a greasy.." before stopping himself when that colleague put her hand up in indication for him to stop.[47]

[103] Whilst noting that Mr Walsh admitted much of the alleged conduct and expressed some remorse, he consistently sought to rationalise his behaviour on the basis that Ms Pohlner "lied", and it was reasonable for him to be upset about a recruitment process in which he disagreed with the outcome. It is suggested that Mr Walsh made a partial admission with respect to the allegations concerning Mr Rahman but demonstrated no insight, and expressly did not admit referring to him as "greasy", demonstrating, they say, that he was not completely frank in the investigation.

[104] Unitywater submit they have a duty of care to ensure the health and safety of Ms Pohlner, Mr Rahman and other workers it engages. It argues that Mr Walsh's conduct was clearly unacceptable in any workplace that values respecting one another, and that does not tolerate racist, sexist or discriminatory behaviour. It was also inconsistent with his statutory obligations as a worker under the Work Health and Safety Act, which require him to take reasonable care that his acts did not adversely affect the health and safety of others, the Code and the Policy which are designed to reflect those statutory obligations, and his employment contract.

[105] Having formed the view that Mr Walsh's conduct was not isolated and that he had not entirely admitted it, nor demonstrated appropriate insight, Unitywater could not have any degree of confidence that it would be able to discharge its workplace obligations if Mr Walsh had remained employed. Unitywater say that, in any practical sense, the continuation of his employment in those circumstances was simply untenable, and would have exposed each of them, and others, to ongoing risk of similar behaviour by Mr Walsh.

[106] Relevant to the allegations relating to Mr Walsh's alleged conduct in the carpark on the morning of 8th November, Unitywater did concede in their closing submissions not only that they should have disclosed to Mr Walsh that they had accessed GPS data, but further, that when he asked to access it, it should have been provided. It was also conceded that both Mr Walsh and Mr Bowler should have been interviewed about the incidents they observed.

[107] Whilst not immediately instructive to the question of valid reason in this matter, I consider Unitywater's concessions regarding the recording of the conversation between Ms Pohlner and Mr Bowler on 8 November 2024 are instructive when assessing the credibility of the witnesses and the investigation more generally.

[108] Having substantiated the allegation made against Mr Walsh, and considered several observations made by the investigator, Unitywater determined that he had variously breached the Code, the Policy and his employment contract.

[109] Mr Hibberd's 6 January 2025 termination letter states that the various mitigating factors raised by Mr Walsh had been taken into account, but that they must be balanced against his conduct which, they say was totally unacceptable. They contend that Mr Walsh's conduct was so serious that the only reasonable outcome was the termination of his employment.

[110] For the most part, I found Mr Walsh to be a credible witness, willing to concede where challenged. Under the pressure of cross examination, Mr Walsh displayed some signs of frustration, and was at times, quite direct in his answers. Mr Walsh remained steadfast in his view that his reaction to the announcement of Ms Pohlner's appointment was due to his understanding that she was ineligible to apply due to being on probation, and that Ms Pohlner had lied to him. Mr Walsh maintained that the allegations put to him were confusing and had conflated the recollections of those interviewed across the various events the subject of the investigation. The strong theme of his evidence was that whilst he accepted that he engaged in several of the discussions, he was not willing to accept, the factual findings that he had made certain specific statements as put to him during the investigation. There are certain elements of Mr Walsh's evidence, particularly with respect to his conversation with Ms Hadfield that I found difficult to accept, and this will be further explored below.

[111] I found several elements of Ms Pohlner's evidence to be problematic. During cross examination, Ms Pohlner paused regularly to check her notes, giving the impression of an unwillingness to be candid. Ms Pohlner also displayed a tendency to revert to formulaic responses particularly when challenged on the statements she had made during her interview with Ms Kelly.

[112] Throughout her cross examination, Ms Pohlner was observed to possess strong views regarding what she deemed to be appropriate conduct, as highlighted by her answer to the questions regarding swearing in the workplace and amongst her friends. This gave an overall impression that Ms Pohlner had extremely high expectations regarding her personal interactions that may not have been reasonably presumed by others.

[113] Whilst not instructive as to Mr Walsh's conduct, several issues of credibility arose during her cross examination with respect to the conduct of Mr Bowler. Ms Pohlner maintained that the statements she made during her interview were her recollection of what was said, however during cross examination it became clear that many such recollections appeared to have been based more on how she felt, what she considered appropriate or how she interpreted what was said, rather than the actual words spoken. This was particularly evident during cross examination regarding a recording she had taken of a private conversation she had with Mr Bowler, which clearly identified several inconsistencies between her recollection and the actual words spoken. When asked if, having just heard the recording, and with the benefit of the transcript, she had changed her views on some elements of the conversation, she was unwilling to concede even the most obvious inconsistencies.

[114] In stark contrast to Mr Walsh, I found Ms Pohler was unwilling to accept various alternate propositions put to her during cross examination, particularly relating to any contrary view of the appropriateness of Mr Walsh's conduct.

[115] Ms Kelly undertook the full investigation and disciplinary process. As such, the cross examination of her evidence was lengthy. Ms Kelly clearly struggled under the pressure of cross examination. I found Mr Taylor's cross examination of Ms Kelly was respectful, however Ms Kelly became visibly frustrated and at times quite distressed.

[116] Several elements of Ms Kelly's evidence raised questions regarding her credibility. Ms Kelly was observed to pause regularly to check her statement rather than answering questions candidly. In particular, Ms Kelly's cross examination highlighted key omissions from her witness statement and inconsistencies with the evidence of Ms Pohlner relating to a recording of Mr Bowler that had been taken by Ms Pohlner, raising further questions as to the credibility of her evidence generally.

[117] I found that Ms Kelly's evidence appeared to have been given through the lens of what appeared to be an unwavering belief in the thoroughness of her investigation and its outcomes which, in my view, led to an almost complete unwillingness to concede a number of propositions challenging the investigation and her findings.

[118] I found the remaining witnesses credible. They were each open with respect to their recollections and displayed a willingness to accept alternate propositions when put. Their evidence highlighted some clear inconsistencies, which I have found instructive with respect to the extent that it was relied upon by the investigator to make findings of fact.

[119] Notwithstanding the above, I do not consider there was any intentional misrepresentation of the facts, rather, I have taken these differences to suggest they each observed slightly different elements of the interactions, and that each of them viewed the interactions they had observed quite differently. This is understandable given much of this matter turns on highly subjective questions of tone and intent. It is also relevant that multiple witnesses confirmed that it was common for them and their colleagues to swear in the workplace, and openly accepted that swearing was not an indication of anger.

[120] I have had regard to these observations when considering the facts and circumstances of this matter.

[121] The way in which the allegation was presented to Mr Walsh was at best confusing. The substantiated allegation was the Mr Walsh had engaged in "Offensive, Intimidating and unprofessional conduct". Under this broad heading were a range of comments, or sub-allegations that referred to comments that Mr Walsh was said to have made to a range of people across several dates, ranging back over the past few months.

[122] I found the continued use of terms and headings such as "repeated", "undermining", "discriminatory" and "offensive" throughout the investigation and when forming the allegations of concern. Such statements could reasonably be viewed as a presumption of facts which had not yet been established.

[123] Similar issues then flow into the format of the show cause letters and the final letter of termination resulting in what could be best be described as a moving feast of allegations, statements and observations. I accept that, in the circumstances, it would have been extremely difficult for Mr Walsh and his representatives to have known precisely what they were responding to.

[124] In order to determine the existence or otherwise of a valid reason, I have found it necessary to put the allegation as put to one side, and instead, consider what appear to have been the key events that resulted in the allegation being made. My considerations have been grouped as follows:

[125] In advance of my consideration of each incident it is useful to address several key issues that have common application to this matter. I have had regard to these observations when considering the facts and circumstances of this matter.

Mr Leslie Walsh v Northern SEQ Distributor - Retail Authority Trading AS Unitywater [2025] FWC 2853

At a glance

Court

Decision date

Source

Judgment (352 paragraphs)

Mr Leslie Walsh v Northern SEQ Distributor - Retail Authority Trading AS Unitywater [2025] FWC 2853 (24 September 2025)

Parties

Legislation Cited (1)

Cases Cited (2)