Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

[1] Mr Wibmer was employed by FujiFilm Data Management Solution Pty Ltd (FujiFilm) from 8 October 2013 to 7 August 2025. He was employed as a Senior Java Developer. He was dismissed for serious misconduct. He has applied pursuant to s 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy. FujiFilm submits that the dismissal was not unfair.

[2] Mr Wibmer represented himself. FujiFilm was granted permission to be represented by a lawyer. At the hearing, Mr Wibmer relied upon a written statement, various documents and written submissions. Mr Wibmer was cross examined. FujiFilm relied upon written statements of Vinit Pandit Senior Manager Software Delivery, Joseph Jamhour General Manager Architecture and Software, Amir Qajar Human Resources Manager Vic, NT and SA, Julie Croft Group Human Resources Manager, Lalita Yadav Human Resources Consultant, and Keith Grieves who was Managing Director at the time of dismissal. FujiFilm provided written submissions. All of FujiFilm's witnesses were cross-examined, save for Ms Yadav. The parties also made oral submissions.

[3] Mr Wibmer was employed at FujiFilm for more than 11 years. There was no complaint about his performance or his conduct in that time. The events that led to Mr Wibmer's dismissal commenced on 30 May 2025 when he was involved in a disagreement with a colleague. Mr Wibmer complained that the disagreement involved his colleague bullying him. He would not accept an apology and asked that the incident be investigated. As that matter was investigated, Mr Wibmer made further complaints and engaged in an inordinate exchange of communications with several FujiFilm managers. Most of the communications were by email. Many of the emails were lengthy. Mr Wibmer agreed that in preparing those emails he relied upon an artificial intelligence large language model (AI). There were also meetings. Those who attended said they believe Mr Wibmer was using AI during those meetings to frame his responses. Mr Wibmer did not challenge that evidence.

[4] The incident on 30 May 2025 which gave rise to the bullying complaint occurred during a text message exchange on Microsoft Teams. At around 4.14 pm, during a discussion about a project Mr Wibmer was involved in, one of Mr Wibmer's colleagues made a criticism about an aspect of his work. The criticism was that Mr Wibmer's work had "caused more pain than gain". In response, Mr Wibmer sent a message which read "far q". The discussion then continued as to whether Mr Wibmer had made an error. It included an exchange about rectifying the error. The exchange was brief and concluded at 4.20 pm. At 5.06 pm, Mr Wibmer returned to the conversation to say that the work issue was not an error but was common practice. He said, "I am offended by your blaming me" and "if you apologise I can let it go." His colleague responded at 5.38 pm with a message which said:

Do you have anger management issue? i don't like being sworn at. i just pointed out that your change caused me* pain due to merging conflict and no way being offensive. Your response is way out of line. In no way I ever suggested it is you 'fault'!

I consider your diagnosis of alleged anger management to be an offensive bullying incident. Neither did I swear at you. You precisely blamed me for a normal occurrence.

[6] On 4 June 2025, Mr Wibmer complained about this exchange to his supervisor Mr Pandit. His complaint was that this amounted to workplace bullying and inappropriate behaviour. Mr Wibmer said in his complaint that the remarks were part of a pattern of hostile behaviour that undermined a respectful and inclusive work environment and requested that the matter be investigated and steps be taken to ensure such conduct did not continue. Mr Pandit referred the complaint to his manager, Mr Jamhour. Mr Jamhour arranged a meeting to try to resolve the issue. A meeting was held on 6 June 2025. Mr Pandit's account was that during the meeting Mr Wibmer's colleague apologised, but Mr Wibmer refused to accept the apology. This is unfortunate, if he had done so, the events that followed would not have occurred. During the meeting Mr Wibmer made a comment to Mr Jamhour about a previous incident of violence in the workplace where he had reported that a colleague had attempted to strike him. He claimed that FujiFilm had done nothing about it. Following the meeting, Mr Wibmer requested that the bullying complaint be referred to HR.

[7] Ms Croft is the group HR Manager and she took carriage of the matter and arranged another HR Manager, Ms Ord, to review the incident. Mr Wibmer sent Ms Ord an email on 7 July 2025 telling her he wanted the Teams exchange on 30 May to be regarded as a bullying event, that there be a public apology, and that there be a mediation and monitoring of his colleague. In the email, Mr Wibmer again referred to a past incident with another colleague who he said threw a punch at him. He said, on that occasion, HR had ignored his complaint. Ms Ord responded, acknowledging receipt of the email. Mr Wibmer replied shortly after, complaining that the response didn't address the issues raised in his email. He again referred to the earlier incident which he characterised as an example of workplace violence being "swept aside". Ms Ord arranged a meeting with Mr Wibmer for 8 July 2025.

[8] In the meantime, Ms Ord and Ms Yadav investigated Mr Wibmer's bullying complaint. Ms Ord and Ms Yadav met with Mr Wibmer's colleagues involved in the Teams interaction on 30 May 2025. The earlier incident was also investigated.

[9] The meeting to discuss the bullying complaint on 8 July 2025 involved Mr Wibmer, Ms Ord and Ms Yadav. Ms Yadav's statement gave an account of the meeting. She also provided her notes. The meeting commenced with Mr Wibmer requesting that he be able to record the meeting. The request was denied. He then raised the earlier incident, which had occurred in 2019. In preparation for the meeting Ms Ord and Ms Jamhour investigated that matter. They co-authored a letter to Mr Wibmer recording what they had found. The letter was dated 8 July 2025. It corrected Mr Wibmer's account that the complaint was not taken seriously. It referred to interview notes from the time, an investigation report, and an outcome letter dated 29 May 2019. It noted that the other employee apologised to Mr Wibmer for his conduct and his apology was accepted. The letter indicated that Mr Wibmer, having accepted the apology, had indicated that he would not be pursuing the matter further. The letter said the company considered the matter finalised and would not be reopening it. Mr Wibmer was reassured that FujiFilm has a zero-tolerance of incidents of workplace bullying and violence. Ms Ord provided Mr Wibmer with the letter during the meeting indicating that the matter would not be reopened and that the meeting was to discuss the incident on Teams on 30 May 2025.

[10] The discussion then turned to the 30 May 2025 Teams exchange. Mr Wibmer expressed concern that he had been publicly criticised in front of a colleague, that the messages directed towards him were insulting and offensive. He also said that when he typed "far q" in the messages it was a typographical error. He intended to write "far out". Ms Yadav states that the discussion about the bullying claim was limited as Mr Wibmer continually returned to the 2019 incident.

[11] Ms Yadav also noted that, prior to the meeting, Mr Jamhour had passed on a comment from Mr Grieves, who at the time was the General Manager of FujiFilm, that Mr Wibmer had been seen wearing a singlet in the office that day. Mr Grieves had asked that Mr Wibmer be instructed to put a shirt on. During the meeting, Ms Ord passed on the instruction. Ms Yadav stated that Mr Wibmer said that the office was hot. Ms Yadav recalled that Ms Ord said:

I am feeling warm too, but I'm not taking my shirt off

[12] Mr Wibmer later stated that Ms Ord said, "how would you like it if I took my top off". I prefer Ms Yadav's account. It is consistent with Mr Wibmer's later account that the office was hot and requests that the air conditioning be turned. I did not regard Mr Wibmer's account as credible due to his tendency throughout the proceedings to divert attention from his own conduct by raising allegations against others.

[13] Mr Wibmer responded to the request to dress appropriately by discussing the company Dress Code and asserting that it was not being applied consistently. Ms Yadav describes a wide-ranging discussion with Mr Wibmer complaining about the Dress Code being applied discriminately and making comment about the way others in the office were dressed. His claims included that many women were wearing singlets and open shoes contrary to the Dress Code. He then returned to the 2019 incident and was told again that the issue was closed. Mr Wibmer concluded the meeting by saying that he was considering escalating the 2019 matter externally. The meeting concluded with the managers telling Mr Wibmer that they would finalise the outcome of his bullying compliant within a week.

Response to the 8 July meeting - the first tranche of emails

[14] Almost immediately after the meeting, Mr Wibmer began sending emails, some of them lengthy, to various managers. It appears that at least 17 discrete emails were sent in the period from 8 to11 July 2025. The way the emails were provided was email-chains, some of which branched off as more recipients were copied in. The following is an account of the key exchanges.

[15] Shortly after the meeting on 8 July 2025, Mr Wibmer sent an email to a Ms Balassopolous, copying in Ms Ord and Mr Jamhour. This led to an email exchange with Ms Balassopolous over two days, 8 and 9 July 2025. In that exchange, Mr Wibmer asked about the temperature in the office, requesting that it be turned down as he had been feeling uncomfortably hot and took his shirt off. He also said he had been "busted" for a Dress Code violation by HR and asked about the Dress Code. He enquired if it applied equally to all genders. He expressed the view that the code had been applied punitively. Ms Balassopoulos responded that the temperature had been lowered, singlets in the office were not appropriate at any time, and if he had issues with HR he should take it up with them. Mr Wibmer responded to Ms Balassopoulos with further complaints about Ms Ord raising the Dress Code at the meeting. Ms Balassopoulos did not respond. Mr Pandit was copied into these emails.

[16] Mr Wibmer sent another an email shortly after the meeting to Mr Jamhour. In it he complained about how Ms Ord conducted the meeting, including that she attempted to "shut down the workplace violence incident from the outset", refused him permission to record the meeting but made her own notes, was evasive and obstructive, and closed the meeting by giving him a workplace dress violation for his shoes, black pants, dark shirt, and singlet. He considered the warning punitive as he considered others in the office were not abiding by the code. He concluded by expressing the view that his complaint was being "swept under the carpet".

[17] On 9 July 2025, in response to a request made at the meeting the day before, Ms Ord sent Mr Wibmer sent an electronic copy of the outcome letter concerning the 2019 incident. Mr Wibmer responded with a lengthy and perplexing email seeking information about the 2019 and 2025 issues. The email was copied to Mr Jamhour, Mr Pandit and Mr Grieves. The email included a list of 24 questions under the heading "Interrogatory & Discovery Questions to HR - Fuji Films DMS". The questions were grouped under headings referring to the following topics: the 2019 workplace violence incident, the May 2025 bullying complaint, procedural integrity and HR Conduct, Dress Code and gender policy concerns, and Dress Code vs. workplace safety priorities. It also included requests for documents such as investigation files from 2019, the Dress Code, and internal communications. The email sought formal written responses to each matter raised.

[18] Ms Ord responded that it was not appropriate to respond to Mr Wibmer's requests prior to concluding the investigation about his bullying complaint and providing him with an outcome. She said it was expected that the investigation would be concluded by holding a meeting within a week. She asked him to focus his attention on his assigned duties. Mr Wibmer responded that he disagreed with the reason for delaying a response as most of his questions went to the 2019 incident. He also reiterated and expanded on his concern about the Dress Code issue. The email included the following: "you made (me) feel uncomfortable as you looked me up and down, I found your persistent lingering gaze and appraisal to be creepy as you examined my wardrobe choices" and asserted that Ms Ord had said, "How would you feel if I took my top off," during the meeting. The email described this comment as "deeply inappropriate, shocking, and disgustingly unprofessional". The email went on to list further questions Mr Wibmer had about the Dress Code and demanded responses to those questions before the outcome meeting. That email was followed shortly after by an email asking for a support person at the outcome meeting, that the meeting be recorded, and asserted that Ms Ord had been overtly hostile at the 8 July meeting.

[19] On 10 July 2025, Mr Wibmer emailed Mr Pandit. He alleged that during the 8 July meeting, Ms Ord made a "highly inappropriate and unsettling" comment which he said was "How would you feel if I took my top off?". The email described the comment as unwanted and demeaning, occurring in an "unequal meeting environment" where he was not permitted a support person. Mr Wibmer requested that Mr Pandit provide a formal acknowledgement that the allegation has been received and recorded. He asked that the incident be classified as "potential sexual harassment and workplace bullying". He demanded a "fair, transparent, and time-bound investigation" into this complaint in which he be allowed a support person and be permitted to record all future meetings. He asked Mr Pandit to forward his request to senior management, including Mr Jamhour or Mr Grieves.

[20] That email was followed by another email to Mr Pandit in which Mr Wibmer raised concerns about the investigation he proposed into Ms Ord's conduct at the 8 July 2025 meeting. His email raised concerns that Ms Ord may influence or "shape the internal narrative" of Ms Yadav who was the only other witness to the 8 July meeting. The email pointed out that Mr Wibmer was denied a support person and asked Mr Pandit for advice on how to safeguard the integrity of the events to ensure that recollections do not become "ambiguous or selectively recorded" at a later stage. He stated that he wanted to ensure the witness process remained fair and transparent given the sensitive nature of the allegations.

[21] Mr Pandit forwarded Mr Wibmer's emails to Mr Jamhour and Ms Ord.

[22] Later, on 10 July 2025, Mr Wibmer sent Mr Pandit another email to document his concerns about the company not following its policies and broader standards in handling his workplace grievances. The email referred to the company's sexual harassment policy and its protections for complainants. He also referred to obligations under the FW Act and work health and safety laws. He said serious complaints should be acknowledged and a response plan initiated within 1 to 5 working days. The email referred to specific instances where his complaints had not been dealt with in accordance with these principles. They included the response to the 2019 incident, the failure to acknowledge his bullying complaint from the 30 May 2025 text exchange, the denials for him to access documents from the 2019 incident, the failure to provide him with the Dress Code, and the failure to acknowledge or initiate the sexual harassment complaint made against Ms Ord earlier that day. The email asked Mr Pandit for his assistance in ensuring management provided timely acknowledgments and that all future meetings regarding sensitive allegations include proper procedural safeguards, such as the presence of support persons and formal documentation.

[23] Mr Wibmer then emailed Ms Ord making a "Formal Request for Information and Discovery". In the email, Mr Wibmer demanded that FujiFilm provide him with information and documentation concerning six matters. The request was said to be made under FujiFilm's obligations to transparency and procedural integrity, as outlined in its Workplace Conduct, Bullying, and Sexual Harassment policies, and was said to be supported by Australian legal standards under the FW Act, WHS Act, and FujiFilm's Whistleblower Policy. The email sought a copy of the Dress Code, the name of the manager who had relayed the request that he put his shirt back on on 8 July 2025, documents relating to the 2019 incident, details of the timeline for the handling of the 2025 bullying complaint, a copy of Ms Ord's induction checklist - said to be relevant to whether Ms Ord was aware of the sexual harassment policy, and clarification of the enforcement of the Dress Code. The email sought the documents within 5 calendar days.

[24] By this stage, Mr Wibmer had sent 10 emails airing his various complaints. His simple bullying complaint which had been the subject of an investigation and two meetings had spiralled into complaints about sex discrimination, sexual harassment, failures to provide natural justice, and failures to abide by workplace laws and company policies. Ms Croft responded to Mr Wibmer's email in the following terms:

I can confirm that your emails sent to us on 9th July and 10th July 2025 have been received. We will review the concerns you have raised, however in the meantime while we look into the matters raised, please attend to your normal duties.

[25] Mr Wibmer quickly replied to Ms Croft's email with an email which he forwarded to Mr Grieves, Mr Jamhour and Mr Pandit. It alleged that he was being victimised by being asked to resume normal duties. It was typical of the emails drafted by Mr Wibmer with the assistance of AI. It read (bold text in the original):

Your suggestion that I am not performing my "normal duties" in the context of raising multiple serious concerns - including workplace violence, bullying, and sexual harassment - is both inappropriate and, in legal terms, potentially constitutes adverse action.

As the most senior HR official at FUJIFILM OMS, you are responsible for upholding both FUJIFILM's internal policies and external legal obligations, including:

It is unlawful to take or threaten adverse action against an employee for exercising a workplace right, such as raising complaints about bullying, misconduct, or harassment.

• Work Health and Safety Act 2011 (Cth):

FUJIFILM has a positive duty of care to eliminate psychological hazards, including retaliation, intimidation, and the procedural mistreatment of complaints.

• Sex Discrimination Act 1984 and Australian Human Rights Commission Act 1986:

These prohibit both sexual harassment and victimisation of any person for making or pursuing a complaint about inappropriate workplace conduct.

Australian law does not require proof of intent - only that the effect of a person's conduct limits or discourages an employee from exercising their legal rights. Your message risks doing exactly that, and may also have a chilling effect on other employees observing this process.

1. A formal acknowledgment of my right to raise such concerns without adverse commentary or implication;
2. A reaffirmation that FUJIFILM DMS will act in accordance with its legal and procedural obligations under the FW Act, WHS Act, and anti-discrimination law;
3. An assurance that no further action will be taken which could reasonably be construed as retaliatory, undermining, or punitive toward me.

Finally, I would like to know whether your message was reviewed by FujiFilm' legal department prior to being sent. If not, I respectfully ask why such a legally sensitive communication was issued without legal oversight, especially given the seriousness of the complaints I have raised.

I continue to document all correspondence and I will hold all responsible parties accountable under applicable law.

[26] Mr Wibmer claims that around the time of this exchange he noticed an email notification at the bottom of his screen which recorded that an email had been received from Mr Grieves. He said later that he did not read Mr Grieves email but believed the summary in the notification was to the effect that he should stop making complaints. He said when he went to read the email it had been withdrawn by Mr Grieves. He sent Mr Grieves an email in the following terms (bold text in the original):

Cc: Julie Croft, Beverley Ord, @Vinit Pandit for oversight.

I am writing to formally document two matters concerning your involvement in serious workplace concerns I have raised.

On or around 10 July 2025, I received an email from you which I read before it was subsequently withdrawn. The tone and content of the email were consistent with recent correspondence from Julie Croft and Beverley Ord, implying that I was not performing my usual duties due to pursuing workplace concerns including bullying, sexual harassment, and workplace violence.

I also discussed the contents of that message with my line manager, Vinit Pandit, shortly after reading it.

I retain a screenshot confirming the message was retracted ("20250710 - Email retracted Keith.jpeg") and have formally logged this as contemporaneous evidence. If the email itself cannot be retrieved, I respectfully request that server logs documenting the dispatch, recall, and read retained and disclosed if requested during internal and external review.

This forms part of a growing pattern of adverse action and reputational risk to FUJIFILM DMS concerning potential breaches of the FW Act 2009 (Cth) and internal policy.

1. 2019 Workplace Violence Matter - Management Response

I am also formally documenting an earlier exchange with you in May 2019, following my formal complaint that Eric Mak threw a punch at my abdomen and subsequently made a verbal threat to "smash me in the face".

After submitting my complaint, I invited you to read the email content at my desk. After reviewing the complaint briefly, your response was:

This response-coming from the most senior person in my reporting chain - failed to ensure procedural support, timely escalation, or any visible follow-up at that time. I consider this a further instance of procedural failure and neglect of duty of care that now connects to the current handling of related matters.

If no clarification is received, I will consider these events documented without objection and log them accordingly.

[27] Mr Wibmer later conceded that contrary to his email he did not have a screenshot recording Mr Grieves retrieving an email but said he did have a screenshot of a Teams text message he sent Mr Pandit at the time he believes he received the email. That message is said to have been "Keith just sent me an email directing me to disengage from whistleblowing activities and reengage with work deliveries".

[28] On 11 July 2025 at 12:27 pm, Mr Wibmer sent an email to Mr Pandit, stating that he had "broken down in tears twice today" and needed to go home immediately to see a doctor and regroup. Mr Pandit agreed and told Mr Wibmer to submit his timesheet for the week.

[29] Mr Wibmer left the office. Mr Pandit informed Ms Julie Croft of what had happened. Before leaving or shortly thereafter, Mr Wibmer submitted his timesheet. The timesheet included an entry recording 15 hours logged under "Meetings/Other" with the descriptive note "Meetings concerning workplace Violence and Bullying Matters."

[30] Mr Wibmer and Mr Pandit gave accounts of a discussion about the timesheet held prior to Mr Wibmer leaving the office. The accounts were similar. Mr Pandit had asked Mr Wibmer for completed timesheet before he left. They discussed how Mr Wibmer should record the hours spent on the various complaints that he had been dealing with during the week. He said Mr Pandit told him to use the "Meetings" or "Admin" categories because no specific code existed for that type of activity. Mr Pandit later approved the timesheet as submitted by Mr Wibmer. At the time it was approved, Mr Pandit did not challenge the way it was filled out. He said he didn't do so because Mr Wibmer had already left the workplace and was not available to amend the entries.

[31] At 7:07 pm on 11 July 2025, Ms Croft sent an email to Mr Wibmer's personal address titled "Notification of direction not to attend work." The email informed Mr Wibmer that he was directed not to attend the workplace until further notice to allow for a "fulsome review" of the matters he had raised. His access to all FujiFilm systems, was also suspended effective immediately. The email confirmed Mr Wibmer would remain on full pay during the review. Mr Wibmer was encouraged to access the Employee Assistance Program (EAP) for support. Mr Pandit sent a text message to Wibmer's mobile phone advising him to check his personal email for the formal direction from HR.

[32] On 18 July 2025, Ms Croft wrote to Mr Wibmer to update him on the progress of the review. The email said that the company required more time to complete its investigation and confirmed that Mr Wibmer was to remain away from work on full pay.

[33] On 21 July 2025, Ms Croft provided a detailed response to the many issues raised by Mr Wibmer setting out the company's findings on each issue. The first issue was the requests that the 2019 workplace complaint about violence be reopened. The letter repeated the company's position that it would not be reopening that matter, explaining that it was a historical matter that had been investigated and resolved at the time. Second, it addressed the bullying complaint arising from the May 2025 Teams exchange. The matter had been investigated, and it was found that the message, which was the subject of the complaint, was a reaction to a technical challenge arising in the work and was not a personal attack on Mr Wibmer and so there was no misconduct on the part of the other employee. The various complaints that Mr Wibmer was denied procedural fairness and had been coerced in the investigation of that matter were also dealt with and rejected. Third, Mr Wibmer was advised that the instruction that Mr Wibmer put his shirt back on was reasonable and there was no discriminatory approach taken to the Dress Code. The investigation found that Ms Ord did not say "how would you feel if I took my top off" or otherwise inappropriately scrutinised Mr Wibmer's appearance. The finding was that the matters raised about the Dress Code and the complaint about sexual harassment were unsubstantiated. Fourth, Mr Wibmer's repeated requests for documentations and information from the 2019 incident would not be provided as the matter was closed. The further requests for information about the Dress Code complaints, and the bullying complaints were also refused as each of those issues had been dealt with appropriately with procedural fairness afforded on each of those matters. Fifth, the allegations of adverse action arising from Ms Ord's request that Mr Wibmer return to his normal duties was rejected as Ms Ord was simply requesting Mr Wibmer to focus on his work while his various complaints were being investigated. Sixth, the allegation that Mr Grieves had also sent an email requiring Mr Wibmer to return to normal duties was also rejected as a search of the company's IT system confirmed that no such email was sent.

[34] After addressing each of Mr Wibmer's issues the letter turned to concerns the company held about Mr Wibmer's conduct. It raised two allegations of misconduct. They were:

1. Misrepresenting time spent in meetings related to workplace issues and failing to perform work;

1. Dishonestly representing that the FujiFilm DMS Managing Director, Keith Grieves sent you an email and subsequently recalled it.

[35] The letter concluded by stating that the company considered the fabrication of the timesheet and the assertion about Mr Grieves' withdrawing an email amounted to serious misconduct and, if substantiated, may lead to disciplinary action including dismissal. Mr Wibmer was asked to attend a meeting on 25 July to respond to the allegations. He was invited to bring a support person. He was to remain away from the workplace in the meantime.

The response to the allegations - the second tranche of emails

[36] On 23 July 2025, Mr Wibmer responded to the letter with a lengthy email. In it he denied the allegations. He also alleged that the company's latest action amounted to a form of reprisal for protected disclosures made under the Corporations Act 2001 (Corporations Act). Accordingly, he sought information prior to any meeting or further steps being taken. There was a long list of requests arranged under 9 headings. The requests included a full statement of particulars supporting the allegations and copies of all metadata and audit trails the company intended to rely upon. He also demanded to know the origin of the complaint or audit that triggered the disciplinary process. He requested an adjournment of the scheduled 25 July meeting to obtain legal advice and representation, citing his rights under the FW Act. He rejected the findings on his complaints, maintaining that the May 2025 Teams interaction constituted bullying and stated that the remark by Ms Ord on 8 July 2025 was sexual harassment. He asserted his status as a protected whistleblower under the Corporations Act and the FW Act, noting that the timing of the allegations against him raised concerns of reprisal for his previous disclosures. He challenged the company's authority to unilaterally close the 2019 workplace violence matter, arguing that it involved a potential criminal assault and remained open under the WHS Act 2011. Mr Wibmer said in the letter that the perpetrator of the violence had said at the time "next time I kill you".

[37] The email also addressed the two allegations of misconduct made in the 23 July letter. It said that he did not claim to possess a screenshot of Mr Grieves' retracting the 10 July email. Rather he had a contemporaneous screenshot of a Team's conversation he had with Mr Pandit in which he recorded receiving an email to the effect that he had earlier claimed. He asked that further searches be conducted for the email. In relation to the timesheet, he said that his entries were in accordance with Mr Pandit's verbal direction, Mr Pandit approved the timesheet, and he acted in good faith in making the entries he did. The letter concluded with a statement that Mr Wibmer expected no action would be taken until his requests were met and he had time to seek legal counsel.

[38] On 24 July 2025, Mr Wibmer wrote to clarify that in the 23 July letter there was an error and that the words "next time I kill you" was "next time I smash you face in". The clarification was said to have been made following Mr Wibmer reviewing his records from 2019.

[39] Ms Croft responded on the same day refusing Mr Wibmer's request to adjourn the 25 July meeting and asserting he had been given time to obtain advice. The letter warned that failure to attend would be treated as a failure to follow a lawful and reasonable direction and could result in termination. The letter said that the meeting was a fact-finding session regarding misconduct allegations. It noted that the process could result in disciplinary action, including termination, if the allegations were substantiated. Relevant to the matters to be discussed at the meeting, Ms Croft provided a copy of Mr Wibmer's timesheet for the week ending 11 July 2025 and IT audit logs which the company claimed showed no record of any email sent or retracted by Mr Grieves on 10 July. Ms Croft disagreed with Mr Wibmer's claim that he was a whistleblower under the Corporations Act. The letter stated that the company viewed his reports not as protected disclosures but as workplace grievances that had already been resolved and closed. She restated that the 2019 incident was settled and would not be revisited, that there was no evidence for the allegation against Ms Ord, and that the bullying matter was closed. Ms Ord concluded by stating that Mr Wibmer would remain suspended on full pay and that the 25 July meeting was his opportunity to respond before a decision was made.

[40] Mr Wibmer responded on the same day. The response revisited each of the matters previously dealt with. It restated his earlier claims that the 2019 incident should be re-opened, asserted that he was sexually harassed by Ms Ord, was bullied on Teams, that he believed Mr Grieves did send an email, and that the Dress Code was applied unfairly and discriminately against him. He denied the allegations of dishonesty and reasserted his right to be treated as a whistleblower under corporations law. He complained that by withholding relevant documents he was being denied procedural fairness. The response concluded with Mr Wibmer agreeing to attend the 25 July meeting and nominating a support person.

[41] The meeting went ahead on 25 July 2025 at around 11:00 am. Mr Qajar, Mr Pandit, Mr Wibmer and Mr Wibmer's support person attended in person. Ms Croft, who chaired the meeting attended remotely by Teams with her camera turned off. The camera in the meeting room was also turned off. Ms Croft provided her notes from the meeting. The meeting commenced with Ms Croft stating that the meeting was a fact-finding session regarding specific allegations of misconduct that could lead to dismissal. Reference was made to requests for information about other incidents and the reasons those requests were denied.

[42] On the first allegation, Mr Wibmer was asked why he recorded 15 hours for meetings concerning workplace violence and bullying matters when he was only required to attend a one-hour meeting that week. He explained that he had asked Mr Pandit how to record the 15 hours he spent addressing his workplace violence, sexual harassment and procedural failures complaints and Mr Pandit told him to use the code "other meetings". Mr Wibmer confirmed that there was only one meeting in the week of 11 July but stated that he regarded the time spent later in the week on his various complaints constituted legitimate work duties as they were whistleblower activity.

[43] On the second allegation, Mr Wibmer confirmed that he did not have a copy of the screenshot showing Mr Grieves' retracted email. He explained he was working on his laptop and saw a notification that an email had arrived. He quickly read the notification but not the message. When he later returned to read the email, it was gone and appeared to be withdrawn. He was asked why he emailed Mr Grieves stating that he had a screenshot showing the email was withdrawn. He said he did not have the screenshot but had a screenshot of the contemporaneous Microsoft Teams chat. When asked to provide that screenshot he refused.

[44] Ms Croft's notes record that, throughout the meeting, Mr Wibmer made complaints objecting to the lack of a formal written agenda, characterising the meeting as an ambush, and accusing Mr Qajar of selective minute taking and leaving out information that did not suit the company narrative. He also reasserted his rights to be protected as a whistleblower arising from his complaints about workplace violence, bullying, sexual harassment and lack of procedural fairness.

[45] Mr Qajar's statement gave an account of the meeting. He said that at the commencement of the meeting Mr Wibmer asked him about his ethnic background. When Mr Qajar responded that it was not relevant Mr Wibmer indicated that he had an Iranian flatmate. Mr Qajar also provided notes. His notes accord with Ms Croft's notes. His notes also record a pause in the meeting where Mr Wibmer sought advice on his phone. Mr Qajar stated that it appeared Mr Wibmer was using ChatGPT for advice. Mr Qajar also observed that, during the meeting, Mr Wibmer was disrespectful towards Ms Croft and made hand gestures indicating that Ms Croft should hurry up. The meeting concluded at around 12:30 pm.

[46] Mr Wibmer provided notes of the meeting. They provided a more detailed account of what was said. They accord with the notes of Ms Croft and Mr Qajar.

[47] On 24 July 2025, the day before the meeting, Mr Wibmer had complained about how he was being treated to other FujiFilm related entities. He was told that he had raised his issues with the wrong entity. He eventually made a complaint to FujiFilm's parent company in Japan. No mention of the complaint was made in the meeting. On the evening of 25 July 2025, Mr Kayuza Suzuki from Compliance and Risk Management Group, FUJIFILM Holdings Corporation responded to the complaint by email indicating that the complaint would be investigated.

[48] On 29 July 2025, Mr Wibmer sent an email to Ms Croft objecting to the way the meeting of 25 July 2025 was conducted. The email complained that the meeting had no written agenda and was a HR-led discovery exercise in which he was repeatedly denied the opportunity to raise his own matters or ask questions. He said it was contradictory to label the session fact-finding but then introduce serious misconduct allegations and indicate that termination was a possible outcome. Mr Wibmer complained that Mr Qajar's stated role of note-taker changed to an interrogative role, while Mr Pandit remained silent. He complained that Mr Pandit failed to confirm the verbal directions he had previously given regarding timesheet recording. The email concluded by Mr Wibmer stating he was "reserving his rights".

[49] On 30 July 2025, Ms Croft sent Mr Wibmer a letter indicating that the investigation had concluded and that the two allegations in the 23 July letter had been substantiated. On the first allegation, it was found that there was no plausible explanation as to why Mr Wibmer represented that he spent 15 hours attending to non-assigned work tasks in the week ending 11 July 2025 given he was only required to attend one, one-hour meeting on 8 July 2025 and was not otherwise required to attend any other meetings. The second allegation was also substantiated with a finding that Mr Wibmer misrepresented that Mr Grieves sent an email and then recalled that email. It was also found that Mr Wibmer misrepresented the existence of a screenshot confirming that the email had been retracted.

[50] The letter stated the allegations amounted to a serious breach of the FujiFilm Workplace Conduct and Performance Policy. The letter went on to say that the company had no issue with Mr Wibmer raising complaints or concerns, but expected that such complaints be raised in a respectful and constructive. The letter then dealt with Mr Wibmer's conduct during the 25 July meeting gave rise to further concerns about his workplace behaviour and described it as inappropriate, disrespectful, and disruptive. It said that FujiFilm held concerns about Mr Wibmer's ability to conduct himself in accordance with policies and expectations, such that it considered his ongoing employment may be untenable. Particulars of the conduct at the meeting were then provided with references to disrespectful comments to Mr Qajar, interruptions and argumentative behaviour, failure to co-operate, dismissive behaviour and inappropriate gesturing. The breaches of the policy were then set out. Mr Wibmer was informed that FujiFilm was considering terminating his employment and he would be given an opportunity to respond. His response was to be in writing by close of business on 1 August 2025. He was asked to address whether he could commit to respectful conduct consistent with company policies.

[51] In an email the following day Mr Wibmer asked for further information before he could respond. He attached a document which included requests for documents discovery questions and procedural clarifications. He asked that the response period for replying to the show cause letter be suspended until he had all the information he sought. He sought discovery of relevant materials, records, and clarifications. The request was said to be made in accordance with Australian Privacy Principle 12 under the Privacy Act 1988, the FW Act, and common law principles of natural justice and procedural fairness. The document went on to request voluminous material including; the company's sexual harassment policy, policies that related to the 2019 incident, answers to questions about the timesheet issue, computer logs concerning the Grieves email, internal communications about Mr Wibmer's whistleblower complaints, definitions of professional conduct or professional standards, what constituted assigned tasks, and the policies related to the complaints about his conduct.

[52] The email was discursive. The requests for the documents were interspersed with commentary and argument. It gave responses to the allegations. It set out explanations for Mr Wibmer's conduct. It stated how the requests were necessary for him to respond to the show cause letter. It asserted the material, when provided, would justify his conduct. The letter concluded that Mr Wibmer had lost confidence in FujiFilm's internal governance and commitment to the standards it claimed to uphold and complained that the company displayed a culture of "summary disposal - where whistleblowing is reframed as misconduct, and procedural irregularities are wielded to silence dissent".

[53] On 1 August 2025, Ms Croft responded, confirming receipt of the correspondence, providing a copy of the Workplace Conduct and Performance Policy, and indicating the company would not be providing any further information. The time to respond was extended to 12:30pm Monday, 4 August 2025.

[54] Mr Wibmer responded to the show cause with an email dated 3 August 2025. It attached a letter dated 4 August 2025. In the letter, Mr Wibmer denied knowingly misrepresenting his time on the 11 July timesheet, asserting that his actions were transparent and made in good faith under significant stress. He said that he followed the instructions of his manager, Mr Pandit, who advised him to log time spent on grievance matters under "meetings" or "admin" because no specific whistleblower categories existed. He said that the 15 hours were spent on matters of public importance, including reports of workplace violence, bullying, and sexual harassment. He claimed protection under the company's Whistleblower Policy and stated that if this activity was now being labelled as misconduct, the policy itself was void. The email characterised the disciplinary process as a "self-reinforcing apparatus of retaliation". He alleged that his complaints were being reframed as performance or conduct issues to obstruct a fair response and justify his dismissal. Mr Wibmer argued that the allegation was procedurally impossible to sustain. The email demanded the following:

• - Immediate withdrawal of the allegation;
• - Confirmation that whistleblower protections remain in effect;
• - Clarification as to who raised the concern, when, and on what grounds;
• - A written statement confirming the status of the 15-hour entry;
• - Acknowledgement that my recorded time reflected protected activity;
• - A formal review of whether the conduct of Mr Pandit and yourself meets the minimum

Lastly, I note that more internal effort appears to have been spent confecting allegations against the whistleblower than addressing the original misconduct involving violence, bullying, and sexual harassment. The issue here is not whether I acted improperly - but whether your response to lawful whistleblowing is proper.

[56] On 4 August 2025, Ms Croft responded in an email confirming receipt of the response. The email clarified the basis for the allegation concerning his timesheet entry. She explained that the allegation arose from a review of workplace issues, which revealed major inconsistencies between the one-hour HR meeting he was required to attend on 8 July 2025, and the 15 hours he recorded as time spent in HR meetings during that week. FujiFilm was concerned that he knowingly misrepresented his time because he was not required to perform 15 hours of work on these matters, whether his manager accepted or rejected the timesheet was irrelevant, and the issue was the accuracy of his reporting. Ms Croft reiterated that the matters he had raised were not protected disclosures under FujiFilm's Whistleblower Policy or the Corporations Act but instead constituted personal grievances that had already been reviewed and closed.

[57] Ms Croft gave Mr Wibmer until 4:00 pm on 5 August 2025 to provide a further response. She noted that his earlier correspondence did not address the allegation about the email from Mr Grieves or broader concerns about his conduct and encouraged him to respond to all issues. She concluded by stating that he did not need any further information to provide his show‑cause response.

[58] On 5 August 2025, Mr Wibmer wrote another letter to Ms Croft. This letter was a response to Ms Croft's determination that she did not believe that Mr Wibmer's complaints were protected disclosures under corporations law. It sought clarification regarding Ms Croft's determination that the complaints being made were workplace grievances rather than protected disclosures. The letter asked for details of the policy criteria applied and whether the determination was made by reference to the Corporations Act 2001 as Ms Croft had referred to the Corporations Act 2000 in her response. Mr Wibmer asserted that the determination had consequences under the Corporations Act 2001, the FW Act and the WHS Act. He expressed concern that the determination was a procedural breach, misapplication of corporate governance policy, and a potential act of retaliation against a whistleblower. He sought information about responses providing the name of the decision-maker(s), any legal or policy frameworks used, and whether the determination was final. He reserved his rights to escalate the matter internally and externally as a breach of statutory duty and policy and noted that his request would be preserved as part of a formal disclosure and accountability record under FujiFilm's internal policy and applicable whistleblower legislation.

[59] On 6 August 2025, Mr Wibmer sent an email to Mr Robert Bonotto, Chief People & Corporate Services Officer and Group Company Secretary for FujiFilm Innovation Australia Pty Ltd. The email attached a letter. The email highlighted two matters of concern. First that Ms Croft had referred to the Corporations Act 2001 as the "Corporations Act 2000" which he said raised questions about the legal accuracy and review processes within HR leadership. Second, that the allegation made against him about his timesheets had not been raised by anyone suggesting making any investigation of it unlawful.

[60] The attached letter raised 8 further matters. The first going to the procedure followed by Ms Croft, which was said to have amounted to a procedural contest that denied access to mechanisms of review. Mr Wibmer wrote that "(t)his interaction locks all parties into a ShowDiscovery loop - a recursive escalation where every response further exposes internal governance flaws". The second matter also referred to a "ShowDiscovery Loop" which was said to lead to a conflict of interest on Ms Croft's part as she was both the respondent and decision maker to his claims. The third matter dealt with legal exposure for the company to contraventions of the FW Act, the WHS Act, and the Corporations Act. The fourth matter went to governance breakdown as the decision makers, Ms Croft and Ms Ord were responding to allegations that they were implicated in while denying access to material and enforcing discipline. The fifth matter was a request that Ms Croft and Ms Ord be removed from any active decision-making role, that all documents be referred for neutral internal or external legal review, and that no disciplinary action occur while the review was undertaken. The sixth matter was notification that if no response was received in 7 days an external review would be sought through FujiFilm's Japan Corporate Ethics Office, external legal counsel, SafeWork NSW, and through a general protections application at the Fair Work Commission. The seventh matter was that he had a bundle of evidence that he would provide to a neutral and independent reviewer and noted that the material may trigger mandatory reporting obligations, general protections liabilities, and director-level accountability under the FW Act, WHS Act, and Corporations Act. The eighth matter was a closing remark that as Ms Croft had responded to his show cause reply, she had "stepped into the procedural loop" as she could not act as both investigator and defendant.

[61] Mr Bonotto responded to Mr Wibmer that the concerns raised had nothing to do with FujiFilm Business Innovation Australia, and they needed to be directed to FujiFilm. Upon receiving this response, Mr Wibmer wrote to Mr Suzuki, forwarding Mr Bonotto's response, his email to Mr Bonotto, and the attached letter. He copied that email to Mr Grieves, Ms Croft and Mr Bonotto.

[62] On 6 August 2025, Ms Croft asked Mr Jamhour, as the decision maker, to consider the matter and come to a conclusion as to Mr Wibmer's ongoing employment. Ms Croft expressed a view to Mr Jamhour that Mr Wibmer's ongoing employment was untenable given the relationship breakdown. This was based on her review of the show cause responses and the fact that Mr Wibmer expressed a view in correspondence dated 31 July 2025 that he had lost trust in the company. She also told Mr Jamhour the importance of him coming to an independent view as the decision maker.

[63] Mr Jamhour reviewed the correspondence and considered the report provided from Ms Croft. He concluded that Mr Wibmer's ongoing employment was untenable.

[64] On 7 August 2025, Mr Wibmer sent another letter to Mr Suzuki requesting that his protected disclosures be escalated under Mr Suzuki's direct supervision. He referred to the conflict of interest of Ms Croft and Mr Grieves and previous attempts to have the disclosure dealt with as the reason Mr Suzuki should take charge. He asked for confirmation that this would occur. He also asked that Ms Croft and Mr Grieves not be involved in the investigation, that he be informed of the name of any appointed investigator, and that no disciplinary action be taken while the review occurred.

[65] On 7 August 2025 Mr Jamhour sent Mr Wibmer a letter terminating his employment.

On 5 August 2025, Ms Croft informed you that FujiFilm DMS would proceed with making a decision based on the information available to it if you did not provide a substantive response. Having received no further relevant information from you, I have proceeded to make a final decision.

My decision is that your employment is terminated, effective immediately, on the basis that:

• In respect of the Allegations, I am satisfied that your conduct amounts to a breach of the FujiFilm DMS Workplace Conduct Policy.
• In respect of the Further Concerns, I have lost the requisite trust and confidence in you to continue in your employment with FujiFilm DMS. In particular, I consider that you are unable to uphold your obligations under the FujiFilm DMS Workplace Conduct Policy to:

» Contribute towards a harmonious working environment;

» At all times display a thorough and professional manner;

Put simply, I have no confidence that you would conduct yourself in an appropriate manner in the workplace if I allowed your employment to continue. I have no issue at all with you making enquiries about your employment and relevant policy information, the issue is with your conduct and our ability to trust that you will conduct yourself appropriately.

I also note that, relevantly, you have expressly confirmed in correspondence on 31 July 2025 that you have lost confidence in FujiFilm DMS. I am therefore unable to see how your ongoing employment is at all tenable. Whilst I consider that your conduct amounts to serious misconduct because it is clearly wilful behaviour that is inconsistent with the continuation of your employment, as a gesture of goodwill, FujiFilm DMS will pay you five weeks' pay in lieu of notice. You will also be paid all accrued but untaken statutory entitlements. For the avoidance of doubt, this includes any accrued annual leave and long service leave, but not personal (sick) leave.

[67] For completeness, Mr Suzuki wrote to Mr Wibmer on 8 August 2025 confirming that the investigation requested would proceed using General Counsel Catherine Cho and providing Mr Wibmer with a means of communicating with Ms Cho. There was further correspondence with Mr Suzuki in which Mr Wibmer provided details of his complaints. Mr Wibmer responded, foreshadowing that the investigation may be biased if Ms Cho was the subject of direction from FujiFilm's General Manager. On 20 August 2025, Mr Wibmer provided a detailed email setting out his concerns repeating the matters that had already been raised in the lengthy emails described above. On 1 September 2025, Ms Cho responded to the complaints indicating that the matters amounted to personal grievances and did not constitute whistleblower disclosures. Mr Wibmer also provided communications dated November and December 2025 between him and an officer of the NSW Police Force concerning a recent complaint made by Mr Wibmer that he had been assaulted in 2019.

[68] Drafts of Mr Wibmer's emails were generated by AI. The signs of this included that they were often needlessly detailed, many were written in a combative and demanding tone that was inappropriate for communications in a workplace setting, they sought unnecessary clarifications, diverted attention from the issues being addressed, and unreasonably requested voluminous irrelevant or unrelated information and documentation. The topics of the communications complaints and concerns that he wished to make. He was entitled to raise workplace complaints and concerns. The emails however read more as if Mr Wibmer was conducting his own investigation into the conduct of the company. The included emails to managers with the following subject titles:

Formal Allegation of Workplace Bullying and Inappropriate Conduct

Interrogatory & Discovery Questions to HR - FUJIFILM DMS

Concerns Regarding Procedural Fairness and Conduct in Recent HR Meeting

formal acknowledgement from HR or senior management this allegation has been received and recorded

Request to prevent Beverly and HR witness tampering

Concerns about adherence to both FUJIFILM's own commitments and national employment standards

Formal Request for Information and Discovery - FUJIFILM DMS

Formal Concern Regarding Pattern of Adverse Action and Procedural Misconduct

Withdrawn Email -10 July 2025 and Systemic Adverse Action

Without Prejudice - Protected Disclosure under the Corporations Act 2001 (Cth), Fair Work Act

Request for Procedural Clarification and Supporting Material in Response to Show Cause Letter (30 July 2025)

Clarification Request Regarding Protected Disclosure Determination

Formal Escalation of Procedural Concerns and Legal Risk

Procedural Injustice, Retaliation, Breach of Statutory Duties

Protected Disclosure Follow-Up - Governance Breakdown and Request for Independent

[69] Mr Wibmer's communications started with a simple bullying complaint but escalated to a litany of other matters; irrelevant requests to revisit a 2019 workplace altercation that had been long settled, an inexplicable complaint about the discriminatory application of the company Dress Code, an unwarranted claim of sexual harassment, unfounded assertions of work health and safety breaches, groundless allegations of contraventions of various workplace laws, and ill-informed invocations of whistleblower protections. Several of the emails included lengthy lists of questions and requests for irrelevant or extraneous documents or information. ​They needlessly sought assurances of transparency, accountability, adherence to legal norms and company policies. They demanded that Mr Wibmer be afforded procedural fairness and natural justice as required by common law.

[70] The emails were inappropriate. They were disproportionate to the matters being dealt with. They lacked any reasonable regard to purpose or context. They lacked nuance. Through them Mr Wibmer was not effectively advancing his grievances nor adequately responding to allegations made against him. The emails often failed to address the central purpose of the communication by diverting to unrelated topics and unwarranted concerns.

[71] The use of terms and expressions, such as interrogatories, the common law, general protections, discrimination, whistleblower, and natural justice and procedural fairness was imprecise. The citation of multiple specific sections in statutes, invoked within a short timeframe of a meeting or communication was remarkable. It was also both unwarranted and, no doubt for the recipients of those emails, overbearing. Examples of this are found in the 9 July 2025 email with the subject "Interrogatory & Discovery Questions to HR", and in emails on 10 July 2025 described and set out above. Similar examples are found in the communications with Mr Suzuki.

[72] Mr Wibmer did not deny that he relied upon AI. He said that he had access to AI in preparing his communications. There were also unchallenged observations from managers that Mr Wibmer had used his phone during meetings and appeared to be referring to Chat GPT for guidance when responding to management comments. He emphasised however that all the communications were his. He described his use of AI as a process of collaboration. He regarded it as technology that was available to assist him and that it made sense that he use it. He insisted that he used his actual intelligence in assessing, editing and finalising the drafts. He accepted ultimate responsibility for what was contained in all communications. Despite his explanations and his commendable disclosure of his use of AI, his collaboration with it did not serve him well.

[73] Mr Wibmer seeks an unfair dismissal remedy. He seeks compensation, submitting that reinstatement is not appropriate. His claim is that he should be compensated because his dismissal was harsh, unjust or unreasonable. FujiFilm accepts that Mr Wibmer was a person protected from unfair dismissal for the purposes of s 382. Unfair dismissal is defined in s. 385. The only issue arising under that section is whether the Commission can be satisfied that the dismissal harsh, unjust or unreasonable and consequently was unfair.

[74] The statutory task then is to consider whether I am satisfied that the dismissal was harsh, unjust or unreasonable for the purposes of s. 385.

[75] Mr Wibmer was unrepresented. He prepared his case with the assistance of AI. He was not wise to do so. The Commission provides ample guidance for unrepresented parties in preparing for hearings. That guidance is available on the Commission's website. It is unfortunate that neither Mr Wibmer, nor the technology that he relied upon, paid heed to it. Directions were issued for filing and serving written material in support of his case. Shortly after the directions were issued Mr Wibmer filed three applications for orders that FujiFilm produce the panoply of documents that he had sought in his emails during the weeks preceding his dismissal. In circumstances where directions had been issued for the filing of evidence and submissions, his applications were refused.

[76] He filed submissions in accordance with the directions. Those submissions were discursive and difficult to follow. While they at times had focus, that focus did not extend to the issues that were necessary to make out his case. Mr Wibmer also made oral submissions. Greater focus was given in those submissions. I glean from Mr Wibmer's written and oral submissions the following propositions in support of his case that his dismissal was unfair:

a) The allegation that he knowingly misrepresented time spent in meetings on his timesheet was not substantiated. He submits that he did not misrepresent his work on the timesheet on 11 July 2025. He completed it honestly using the available entry fields. Those fields were inadequate to permit him to provide detail of the work he did on workplace complaints in that week. He also relied upon the fact that he filled the timesheet in following discussions with his supervisor Mr Pandit and that Mr Pandit approved the timesheet. Mr Wibmer submitted that, as the timesheet allegation formed part of the reason for dismissal and was not made out, the reason for dismissal was flawed and should be regarded as not valid. On that basis alone the dismissal must be found to be unfair.

b) The allegation that he had not performed work in the 15 hours spent on his complaints was also not made out because it should be found that work performed making workplace complaints was legitimate work. Mr Wibmer submitted that, as the allegation about the work performed was not made out, the reason for dismissal was flawed and should be regarded as not valid. On that basis alone the dismissal must be found to be unfair.

c) The allegations that he dishonestly claimed Mr Grieves sent and withdrew an email was also not made out because he honestly thought that Mr Grieves had sent the email. Again, as this is part of the reason for dismissal, the dismissal was flawed and should be regarded as not valid. On that basis alone, the dismissal must be found to be unfair.

d) His dismissal was procedurally unfair because:

1. Ms Croft conducted the investigation despite being implicated in the matters raised by Mr Wibmer in his many emails. Ms Croft is said to have had multiple conflicting roles, including "investigator, evidence gatekeeper, and termination recommender".
2. He was suspended and locked out of his work computer denied access to evidence and system records during the show-cause process, which hindered his ability to respond to allegations.
3. He was not allowed to ask questions during meetings. He was not allowed to record meetings.
4. The allegations against him shifted without his knowledge.

e) He was dismissed without his sexual harassment complaint being properly investigated or resolved.

f) His dismissal was unfair because it was in retaliation for raising protected disclosures under FujiFilm DMS's Whistleblower Policy and the Corporations Act 2001 (Cth). Mr Wibmer maintained that his disclosures about workplace violence, bullying, sexual harassment, and procedural fairness failures were protected under the Whistleblower Policy. And that his dismissal occurred during an active whistleblower investigation by FujiFilm Holdings in Tokyo, which had not concluded at the time of termination.

g) His dismissal was harsh as he is 64 years old and has been to retire from the workforce prematurely.

[77] Mr Wibmer submits that reinstatement is inappropriate and seeks compensation for his dismissal, citing the impact on his reputation and inability to secure employment due to the allegations made against him. He stated that he had not earned any income since his dismissal and had been forced into early retirement.

a) Mr. Wibmer knowingly misrepresented and falsified 15 hours of work on his timesheet for the week ending 11 July 2025. It contended he recorded these hours as "Meetings concerning workplace violence and bullying matters" when he only attended one authorised one-hour HR meeting during that week.

b) That its IT and audit logs prove that Mr Grieves did not send or retract an email to Wibmer on 10 July 2025. It describes Mr Wibmer's persistence in this claim as dishonest and an attempt to manufacture a claim of adverse action against senior management.

c) These actions constitute serious breaches of its Workplace Conduct and Performance Policy, specifically regarding the obligations to act with "utmost honesty and integrity."

d) Mr Wibmer's behaviour during the 25 July 2025 meeting was unprofessional and disrespectful. He used gestures while managers were speaking, made sarcastic comments, and refused to answer questions directly, rendering further employment untenable.

e) Mr Wibmer was ungovernable demonstrating an inability to accept management authority, specifically by repeatedly attempting to reopen a 2019 complaint that the company had formally declared finalised and closed, refusing to accept the outcomes of his unfounded bullying and sexual harassment complaints, failing to engage with management about his complaints in a constructive way and failing to address key issues raised in the show cause process by requesting discovery of documents, demanding answers to interrogatories and challenging the legal literacy of his managers. He also repeatedly and unjustifiably questioned his managers and accused them of failing to provide procedural fairness, acting unlawfully and breaching company policies.

f) Mr Wibmer was provided with procedural fairness through multiple written notices, a formal fact-finding meeting on 25 July, and a subsequent "show cause" opportunity. Mr Wibmer's suspension and denial of access to work computers was a standard safety and security measure for a stressed employee under review and did not prejudice his defence, as he was provided with copies relevant documents including his timesheet and the IT data logs prior to the disciplinary meeting.

[79] FujiFilm resists reinstatement and agrees that it is not appropriate because the relationship of trust is destroyed. It contends that if the Commission finds the dismissal unfair, any compensation should be reduced to nil or significantly discounted under section 392(3) of the FW Act due to Wibmer's misconduct and overall conduct during the show cause process.

[80] In an often-quoted passage from Byrne v Australian Airlines Ltd (1995) 185 CLR 410 McHugh and Gummow JJ in the High Court of Australia described the expression harsh, just or unreasonable as follows:

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.

[81] The Full Federal Court of Australia in the case of Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCA 54; (2011) 192 FCR 78 at [25] made it clear that in exercising its powers under the Act the Commission has a statutory mandate to get to the heart of matters as directly and as effectively as possible.

[82] In determining whether a dismissal is harsh, unjust or unreasonable the Commission is required to take into account the matters listed in s. 387. Section 387 reads:

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.

[83] In Sydney Trains v Gary Hilder [2020] FWCFB 1373 the Full Bench of the Commission observed in relation to s.387(a):

[26] The principles applicable to the consideration required under s 387(a) are well established, but they require reiteration here:

(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.

(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.

(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).

(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee's dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).

(5) Whether an employee's conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee's contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).

(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.

(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).

(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.

(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.

[84] The reason for Mr Wibmer's dismissal was set out in Mr Jamhour's letter of 6 August 2025. The first matter relied upon was that the allegations about his conduct in July were substantiated. Those being that he falsified his timesheet for the week of 11 July 2025, failed to apply himself to his work in that week, and made a false allegation against the General Manager. The allegations were said to have constituted breaches of the FujiFilm Workplace Conduct Policy. The second matter arose from the further concerns raised in the show cause letter. It was that Mr Jamhour was concerned that Mr Wibmer was unable to contribute towards a harmonious working environment, display a professional manner, act in accordance with FujiFilm's culture, and act with honesty and integrity. Mr Jamhour summarised his reason as follows:

Put simply, I have no confidence that you would conduct yourself in an appropriate manner in the workplace if I allowed your employment to continue. I have no issue at all with you making enquiries about your employment and relevant policy information, the issue is with your conduct and our ability to trust that you will conduct yourself appropriately.

[85] Mr Jamhour also noted that Mr Wibmer had confirmed in correspondence that he had lost confidence in FujFilm, concluding that in those circumstances the employment was no longer tenable.

[86] Mr Wibmer submitted that the question of valid reason should be determined based on findings in his favour in relation to the allegations. He submitted that the timesheet entries were honest and consistent with the system's design. He contended that the category he selected "Meetings Other" was accurate, that his approach was approved by Mr Pandit and that the timesheets were subsequently approved. He argued that the respondent's claim of "knowing dishonesty" was unsupported and failed to establish a valid reason for dismissal. I agree with Mr Wibmer about this. The allegation about the timesheets was not a valid reason for dismissing him.

[87] Mr Wibmer also argued that his activities during the week of 11 July 2025 were consistent with the company's policies, which mandate reporting workplace violence, bullying, and harassment. He stated that his actions complied with these policies and should be considered legitimate work activities. FujiFilm conceded that two hours in that week were sufficient to deal with the bullying complaint that he made. I agree with Mr Wibmer to some extent. He was entitled to make the complaints he did during work time. He was transparent that he was working on these matters. Many of his emails were sent to his direct supervisor Mr Pandit as well as various other managers including Ms Croft and Mr Jamhour. While Mr Wibmer was told to attend to his normal duties on at least three occasions that week. I do not consider that the time spent making the complaints was on its own a valid reason to terminate his employment. It did justify a warning and a clear instruction as to how much time Mr Wibmer should spend on such complaints. On its own it did not constitute a valid reason for dismissing a long-standing employee such as Mr Wibmer.

[88] Mr Wibmer also argued that FujiFilm failed to prove that he was "knowingly dishonesty" regarding the alleged misrepresentation of the email from Mr Grieves. He said that he had been locked out of his work laptop during his suspension, which prevented him from accessing evidence that could have supported his claim. He submitted that the inability to locate the email after the lockout did not prove that it never existed or that he knowingly lied about its existence. I am not with Mr Wibmer on this issue. I find that he was dishonest in his allegation that Mr Grieves had sent and then withdrew an email. Mr Wibmer sent Mr Grieves an email stating he had read the email and went so far as to assert that he had saved a record proving receipt before it was withdrawn. The email specified a computer file name. Mr Wibmer later accepted that this was not true and there was no such file. Mr Wibmer persisted with a submission that FujiFilm had not proven the email was not sent. I accept the evidence of Mr Grieves that he did not send the email. I also accept the evidence of FujiFilm that its searches of its email servers revealed no such email. I find that the email was never sent and that Mr Wibmer was dishonest. I am not satisfied however that this incident, on its own, justified dismissal. Mr Wibmer was clearly in an agitated state by the 10 July 2025 which may explain his intemperate email to Mr Grieves. Mr Wibmer also submitted that he honestly believed the email had been sent and withdrawn. I accept that he held that belief based on what he thought was an email notification on his computer which confirmed that the email had been received and summarised its content.

[89] Mr Wibmer submitted that a finding in his favour on any of the allegations must result in a finding that there was no valid reason. His argument was that once a flaw was found in one aspect of the company's decision-making process a finding should necessarily follow that the dismissal was unfair. I reject that submission. As Mr Jamhour made clear Mr Wibmer was dismissed because the company had lost trust in him and his ability to abide by workplace norms such as contributing to a harmonious working environment, behaving in a professional manner, acting consistent with FujiFilm's culture, and acting with honesty and integrity.

[90] Mr Jamhour's termination letter made clear that the reason for dismissal was based not just on the allegations but included the further concerns he had no confidence that Mr Wibmer would conduct himself in an appropriate manner in the workplace if his employment continued. The further concerns were related to the way in which Mr Wibmer raised his enquiries about employment and requested policy information.

[91] The letter could have been more direct, it significantly understated Mr Wibmer's conduct and the way he raised his many concerns. But in context it was clear that it was a referring to the manner in which Mr Wibmer had raised his concerns in the barrage of emails and other communications described above.

[92] In submissions, FujiFilm described Mr Wibmer as ungovernable. I accept this submission as an accurate description of Mr Wibmer's conduct. He repeatedly refused to accept the company's decisions concerning his complaints. He refused to accept the outcomes of his bullying and sexual harassment complaints and he insisted, despite being told otherwise that he was entitled to whistleblower protections. In submissions FujiFilm also relied upon the way Mr Wibmer corresponded with its managers and his repeated accusations that he was subjected to "process entrapment" and retaliation and caught in a "ShowDiscovery loop". Based on the evidence of his conduct FujiFilm is right to rely on these matters and submit that constructive dialogue with Mr Wibmer had become impossible. FujiFilm pointed to Mr Wibmer's disrespectful conduct during the 25 July meeting as evidence that he refused to be governed by professional standards. It said that his non-cooperation in the meeting, inappropriate comments and gestures, and sarcastic and aggressive comments were incompatible with his ongoing employment. I agree. FujiFilm's submitted that Mr Wibmer failed to constructively engage in the show cause process. He failed to provide substantive responses to the issues raised but instead diverted attention to other matters including seeking discovery of the company's internal processes and decision making in relation to his earlier and resolved complaints. In that regard, the company relied on the exchange of emails from Mr Wibmer in response to the show cause letter. I agree with FujiFilm's submissions on this.

[93] Put briefly, I agree with FujiFilm that Mr Wibmer had become ungovernable. I also consider that Mr Wibmer's conduct over the period from June 2025 up to his dismissal on 7 August 2025 makes good that proposition. That conduct included the following.

[94] The conduct commenced with the initial complaint of bullying. It's not necessary to determine the issue here but the incident Mr Wibmer complained about did not constitute bullying. The FW Act defines bullying at s. 789FD. A worker is "bullied at work" if a person or group repeatedly behaves unreasonably towards the worker while they are at work and the behaviour creates a risk to health and safety. Mr Wibmer was not subject repeated behaviour, and the incident did not create a risk to health and safety.

[95] Mr Wibmer was entitled to make the complaint. However, on any view of it he should have accepted the apology offered at the first meeting. Instead, and I accept the characterisation of FujiFilm that Mr Wibmer, anticipating that his own use of the expression "far q" in the exchange would result in a finding against him, diverted attention by expressing a view that the company would not deal with his complaint due to its previous approach to the 2019 incident. He then irrationally became fixated with the reopening of the 2019 incident. His refusal to accept the matter was closed and his insistence that it be revisited persisted until his dismissal.

[96] At the end of the meeting about the bullying complaint on 8 July 2025, Ms Ord relayed the message that he not take his shirt off in the office. The request was straight forward and justified, it appeared to have no disciplinary consequences and was simply a reminder. Mr Wibmer immediately diverted attention from his own conduct by entering a discussion about how others were dressed and the application of the Dress Code. The course of action following the meeting was extraordinary. He claimed the Dress Code was sexually discriminatory, he perversely made an allegation of sexual harassment against Ms Ord. He said Ms Ord had said "How would you feel if I took my top off". She did not say that. He said that Ms Ord had looked him up and down with a lingering gaze. She had not. There was no sexual harassment by Ms Ord. Mr Wibmer was obdurate. He asserted in a series of emails, copied to senior managers, stating that Ms Ord had sexually harassed him. This was unjustified and unfair to Ms Ord who had only been in her role for a week.

[97] In the emails and other communications sent in the week of 11 July 2025, Mr Wibmer maintained his bullying complaint. He challenged the decision to not open the 2019 incident. He demanded explanations from his managers. He raised new complaints. He complained about the 8 July meeting. He demanded documents be provided and raised questions about the Dress Code and claimed it was applied in a discriminatory way. He challenged the bona fides, qualifications and training of managers. He complained about not being permitted to record meetings. He invoked perceived rights under health and safety law. He asserted breaches of workplace laws. He claimed breaches of human rights laws. He complained of being denied procedural fairness and natural justice. He complained about delay in his complaints being dealt with. His emails were copied to numerous managers. He sent the General Manager an email asserting that he had acted unlawfully and contrary to company policy. Mr Wibmer asserted he had a screenshot of an email to that effect. The General Manager had not sent an email, and the screen shot did not exist.

[98] The company responded to Mr Wibmer's many complaints on 21 July 2025, finding them to be unfounded. It also asked him to respond to concerns regarding his timesheet and the hours he spent making his complaints and the false allegation against the General Manager. A meeting was set for 25 July to discuss these matters. This response triggered another tranche of emails. In his initial response on 23 July 2025, Mr Wibmer commenced by denying the allegations and asserted that the company's concerns amounted to a reprisal about raising complaints. He did not accept the outcome of his earlier complaints and insisted they remained unresolved. He sought discovery and disclosure, clarifications of the procedure to be followed, made further detailed requests for documents and information about his earlier complaints, and requested that no further action be taken or decision made until all his requests were met. He added that he was protected by whistleblower protections under the Corporations Act 2001.

[99] There followed similar exchanges to those in the week of 11 July 2025. The meeting on 25 July 2025 went ahead but Mr Wibmer took a dismissive approach to the meeting. He repeated his various complaints and acted disruptively, focussed on his earlier complaints, repeated requests for documents and information, refused to address the concerns raised and took a combative approach to the company's concerns.

[100] On 30 July 2025, the company sent Mr Wibmer the show cause letter. It commenced by advising Mr Wibmer of the company's concerns about his behaviour and his ability to conduct himself professionally in the workplace. It stated the allegations about his conduct in the week of 11 July 2025 were substantiated. It also raised further concerns arising from the conduct in the 25 July meeting including disrespectful comments and questioning of Mr Amir about his background, the interruptions of others and argumentative conduct during the meeting, his failure to co-operate, his dismissive behaviour and his inappropriate gesturing during the meeting. He was asked to show cause why his employment should not be dismissed.

[101] Mr Wibmer's response was to provide another lengthy reply requesting clarification and access to company material that he claimed was necessary to answer the allegations. His right to the material was stated to be in accordance with privacy principles under the Privacy Act 1988, the FW Act, and common law principles of natural justice. The material sought revisited the allegations and sought policy documents, internal communications, and computer records. He also restated and sought answers to questions about his earlier complaints, challenged the process followed in relation to them and the managers involved, and sought detailed reasons for steps taken and decisions made. He stated he had lost confidence in the company and again asserted he had been denied the benefit of proper workplace practices, health and safety standards and whistleblower protections. His letter expressed the view that FujiFilm should be prepared to have its own conduct scrutinised. After further exchanges in emails and letters similar to those earlier described, Mr Wibmer was dismissed.

[102] Based on this conduct I consider FujiFilm's assessment that Mr Wibmer had become ungovernable as apt. By August 2025, his ongoing employment was untenable owing to the way he dealt with the company in the communications and representations he made in June, July and August 2025. I consider that conduct provided a valid reason to terminate his employment. This matter weighs against a finding that Mr Wibmer's dismissal was harsh, unjust or unreasonable.

[103] Mr Wibmer contends that his dismissal was procedurally unfair due to Ms Croft's conflicting roles, because he had raised complaints against her, and because she denied his requests for company material. I do not consider that Ms Croft acted in a way that led to a conflict of interest or any other conflict that led to any unfairness to Mr Wibmer. Ms Croft always acted as a competent senior HR officer. Mr Wibmer by his communications became a difficult employee, to say the least. His communications were unreasonable and often obstinate. Ms Croft's responses were measured and professional. There was nothing unfair arising from Ms Crofts's involvement with the dismissal.

[104] I do not accept Mr Wibmer's submission that his suspension and lack of access to his company computer denied him an opportunity to respond. He did respond. He asked for access to material and was provided relevant material. He was provided with the timesheet and the relevant policies and the company's records of the search it conducted, at his request, about the allegation involving Mr Grieves sending an email. The documents provided did not meet the broad call in Mr Wibmer's email requests, but the material provided was sufficient to allow him to address the matters in issue.

[105] FujiFilm submits that Wibmer was provided with procedural fairness through multiple written notices, a formal fact-finding meeting on 25 July 2025, and a subsequent show cause opportunity. I accept this was the case.

[106] Subsections 387(b) to (d) deal with procedural fairness. Section 387(b) is directed to whether the employee was notified of the valid reason for termination. FujiFilm did not in terms raise with Mr Wibmer that he may be dismissed because he had become ungovernable. The show cause letter went to the allegations about the timesheet, the excessive time spent on his complaints in the week of 11 July 2025, and his failure to raise complaints in a respectful and constructive manner typified by his conduct at the meeting on 25 July 2025.

[107] While in the extensive communications with him the company did at times raise the discursive nature of his communications, his persistent refusal to accept the outcomes of his complaints, and his unreasonable demands for documents and information, it did not get to the point of saying in terms that by persisting in the way he was he would be dismissed. This factor weighs in favour of a finding that Mr Wibmer's dismissal was harsh, unjust or unreasonable.

[108] As to s. 387(c), Mr Wibmer was given an opportunity to respond to various matters related to his capacity or conduct. He was not given the direct opportunity to respond to the allegation that he had become ungovernable due to his voluminous and obstructive communications in June, July and August 2025. This factor weighs in favour of a finding that Mr Wibmer's dismissal was harsh, unjust or unreasonable.

[109] Section 387(d) is directed to whether there was an unreasonable refusal by the employer to allow a support person to be present to assist at any discussions relating to dismissal. On the occasion that Mr Wibmer asked for a support person he was granted one. There was no such refusal, so this matter is neutral.

[110] Sections 387(e), (f) and (g) going to performance warnings, size of the business and dedicated human resources respectively are also neutral factors in assessing whether Mr Wibmer's dismissal was harsh, unjust or unreasonable.

[111] Section 387(h) requires consideration of any other matters the Commission considers relevant. Mr Wibmer raises that he was dismissed without his sexual harassment complaint being properly investigated or resolved. I have already addressed the sexual harassment claim against Ms Ord. I consider it was baseless. It was investigated and the company's finding that it was unsubstantiated was sound. I do not regard it as a relevant factor in the dismissal.

[112] Mr Wibmer also submits that his dismissal was unfair because it was in retaliation for raising protected disclosures under FujiFilm's Whistleblower Policy and the Corporations Act 2001. He submitted that his complaints about workplace violence, bullying, sexual harassment, and procedural fairness failures were protected under the Whistleblower Policy and that his dismissal occurred during an active whistleblower investigation by FujiFilm Holdings in Tokyo, which had not concluded at the time of termination. I agree with the assessment made by Ms Croft that the complaints were not protected disclosures for the purpose of the policy and the corporations law. They were workplace grievances. The investigation by FujiFilm's parent company came to the same conclusion. The topics of the complaints were serious. The basis for making the complaints were not. Mr Wibmer was not bullied, he was not sexually harassed, and he was afforded procedural fairness. The escalation of the complaint to Tokyo did not give them any further legitimacy. At best, waiting for Mr Suzuki's findings would have only prolonged the employment by a matter of weeks. I do not consider these matters relevant to the question of whether Mr Wibmer was dismissed unfairly.

[113] It was not raised but I have considered whether it was relevant as mitigation for his conduct that Mr Wibmer was collaborating with AI in preparing the myriad of communications that contributed to his dismissal. When the use of AI was raised with him, Mr Wibmer said that he used actual intelligence in collaboration with the AI tools available to him. He said that he also processed evidence from his workplace meetings using an application which transcribed audio recordings that he had made of meetings with his managers and HR. He also said that he used AI to generate the text used in the material he filed in his application. Mr Wibmer also attributed his knowledge of specific statutory provisions and other legal rights to directed research using AI. He defended the use of those tools by arguing that the method of drafting, using AI, did not change the basis of the communications or the complaints behind them.

[114] Mr Wibmer's use of AI was unfortunate. It was counterproductive. It led to his demise. He described the technology as a tool. The communications it produced were dense, repetitive and often rambling. They were demanding and overbearing. They lacked context and perspective. The use of AI appears to have given Mr Wibmer a false sense of security that his communications, laden as they were with allegations of impropriety by his managers and demands for corrective action, were appropriate and acceptable in a workplace setting. Objectively, they were not.

[115] Mr Wibmer was clear that he took responsibility for the communications that were sent. Consequently, I do not regard Mr Wibmer's use of AI as an explanation for his conduct.

[116] Mr Wibmer also pointed to his lengthy service and the impact of the dismissal on his personal circumstances that he was 64 years of age, and the dismissal has forced him to retire. Those are factors that weigh in favour of a finding that the dismissal was harsh, unjust or unreasonable.

[117] Taking all these matters into account, I find that Mr Wibmer's dismissal was not harsh, unjust or unreasonable. Mr Wibmer had become ungovernable. His communications with his employer were inappropriate. His refusal to respond to allegations directly and honestly was improper. His excessive complaints and his refusal to accept the outcomes of those complaints was obstinate. The conclusion that the employment relationship was untenable was justified. The factors that weigh in favour of a finding that Mr Wibmer's dismissal being harsh, unjust and unreasonable are outweighed by his misconduct.

[118] As Mr Winbmer's dismissal was not harsh, unjust or unreasonable it was not unfair and he is not entitled to an unfair dismissal remedy. His application is dismissed.

Mr P Willink of Counsel instructed by Kingston Reid for the Respondent.

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