s.394 - Application for unfair dismissal remedy

• [1] An application was filed on 24 September 2024 (the Application), by Mr Tablo Ary (the Applicant/Mr Ary), pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), following his dismissal on 6 September 2024, by the Bollore Logistics Australia Pty Ltd (the Respondent). The Applicant had commenced employment with the Respondent on 27 May 2022, in Human Resources in the position of Junior Recruitment Business Partner on a full-time basis.

• [2] On 19 November 2024, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). Pursuant to the Directions, the parties filed the following documents:

(a) On 5 December 2024, the Applicant filed an Outline of Submissions, together with a Statement of the Applicant also dated 5 December 2024.

(b) On 17 December 2024, the Respondent filed an Outline of Submissions, together with statements, all dated 16 December 2024, from:

(i) Athish Algoo, Customer Business Solutions Manager of the Respondent;

(ii) Helerene Janse van Rensberg, Head of Legal and Compliance of the Respondent;

(iii) Jennifer Tiricovski, Head of Healthcare of the Respondent;

(iv) Paula Dock, Administration and Security Officer of the Respondent;

(v) Rita Spensieri, Pacific Human Resources Business Partner of the Respondent; and

(vi) Suzanne Lourdes, Pacific Human Resources Director of the Respondent.

(c) The Applicant did not file any material in reply in accordance with the directions. On 18 February 2025, the Applicant's representative advised:

We confirm that the Applicant does not wish to file any reply material in response to the Respondent's materials.

• [3] The matter was heard on 20 and 21 February 2025 (the Hearing). Only the Applicant, Ms van Rensberg, Ms Spensieri and Ms Lourdes were required for cross-examination. The Applicant was represented by Mr Stefanson-Bloomberg of Sasphire Legal. The Respondent was represented by Ms van Rensberg.

• [4] There were no significant issues between the parties as to the relevant events in the matter, and the issues between the parties arise from the conclusions that may be drawn from those events. That was particularly so where:

(a) The Applicant indicated by email dated 18 February 2025, that he did not wish to file any reply materials; and

(b) The Respondent, rather than providing evidence from each witness, adopted an approach in relation to the evidence of Ms van Rensberg, Ms Tiricovski, Ms Dock, Ms Spensieri and Ms Lourdes, where they each adopted the Submissions of the Respondent, using a similar form of words, which in the case of Ms van Rensberg was:

3.1 I confirm that the content of the Respondent's Responses and Submissions filed under the aforesaid case number, as it relates and pertains to my involvement and as mentioned therein, in both the first and second grievances lodged against the Applicant, accurately reflects the events and processes that occurred leading to the dismissal of the Applicant.

3.2 I am aware that the Applicant disputes the fairness and procedure followed in relation to his dismissal. However, based on the investigation and the facts surrounding the Applicant's severe misconduct, however based on the facts of the case, the termination of employment was fair, just and reasonable. All actions taken were in accordance with the company's policies and were based on a legitimate and substantiated reason for dismissal.

• [5] In the role of Junior Recruitment Business Partner, the Applicant was involved in talent

acquisition, reviewing employee performance, liaising with external vendors in relation to employee visa statuses, data entry in the Respondent's human resources platform, preparing and negotiating employee contracts, employee personal files cleanup, payroll ad-hoc -assignments, document filing, processing onboarding and offboarding employees with internal

departments and other ad hoc human resources duties. The Applicant was employed pursuant to a contract effective 27 May 2022, that relevantly provided:

• Devote your full working hours to the requirements of your role

• Exercise all reasonable skill, care and diligence in the performance of your duties

• Carry out your responsibilities in accordance with recognised standards consistent with

your training, experience and professional status

• Promote the interests of Bollore Logistics and not do anything which may adversely affect the reputation or goodwill of Bollore Logistics

• Comply with Bollore Logistics policies and procedures, together with all lawful directions given to you by Bollore Logistics and all legislative requirements.

Other than in the proper performance of your duties you must not disclose to any third party, any confidential information.

• [6] The Respondent had in place the following policies and procedures:

(iv) Information Technology and Surveillance Policy; and

• [7] The Applicant accepted that he had been trained regarding compliance with policies and the Code of Conduct as an HR representative, particularly in his induction, and that he had had online training about compliance.[1]

• [8] On about 12 February 2024, the Applicant received a Performance Appraisal that included an entry as follows:

1/HUMILITY & RESPECT WHEN ADDRESSING THE TEAM AND ALL COLLEAGUES FOR THEIR DIVERSE CULTURAL BACKGROUND AND ETHNICITY

2/TO BE ABLE TO BE IMPARTIAL WHEN DEALING WITH HR MATTERS

3/TO PROVIDE PROFESSIONAL ADVICE WHEN ASKED AND AVOID BIASED OR TAKING-SIDES WITH ANYHIRING MANAGERS

4/MANAGING REACTIONS AND EMOTIONS WHEN RECEIVING FEEDBACK / COMMENTS FROM COLLEAGUES/MANAGER AND RESPONDING IN A LESS DEFENSIVE MANNER.

5/BE A PART OF THE TEAM AND WORK TOGETHER TO SUPPORT EACH OTHER SO THAT YOU ARESUPPORTED TIMELY TOO

• [9] While the Applicant submitted that prior to March 2024, the Respondent had not raised any concerns regarding the Applicant's performance or conduct, and the Applicant received an increase to his base salary and payment of a performance bonus following the above identified performance review that occurred in February 2024, the Respondent submitted that incidents occurred in July and August 2023. Those incidents were summarised in a file note of Ms Spensieri, which recorded the following:

On Monday, 31 July 2023 there was an incident in which Tablo stated to me:

"What would you know, you've never had a male figure in your life!"

I didn't appreciate his comment or his incorrect assumption about my upbringing. This was completely uncalled for and I was offended by his comment.

On 1st August 2023 - Tablo approached my desk and threw a document on my laptop whilst I was working and said: "write this up now". He was very rude and loud in his statement.

Tablo did not act professional and completely disrespected me in front of other co-workers. He did not politely approach me with the courtesy of showing manners or professionalism. I told Tablo: 'Don't you ever talk to me this way again".

On 3rd August 2023 - we had an 'In-Formal' meeting with Luc, Tablo, Suzanne and myself - to speak to him 'informally about his behaviour towards Suzanne and myself - in relation to his comments and his unprofessional behaviour towards Suzanne in which he raises his voice when speaking to her.

During the meeting, Tablo raised his voice several times, but apologised to me in what he said. As Luc was proceeding to stand-up from his chair to make his way out of the meeting - Tablo forcefully yelled at Luc Le Tourneau (Finance Director) and said:

I was in utter shock that he spoke to Luc this way.

Luc sat down and continued to listen to what he had to say.

• [10] On 28 March 2024, Ms Lourdes directed the Applicant to attend her office in

relation to this issue (the 28 March Meeting). Ms Tiricovski's file note as to what occurred at that meeting was as follows:

Tablo Ary was meeting with Suzanne Lourdes in her office, unknown to me of the topic.

The notable concerns commenced when I, along with other colleagues could hear the escalating and aggressive tone. To be honest my recommendation was to call the police as this was not the first time Tablo exhibited aggressive behaviour and language to his manager or other colleagues.

However, Paula Dock volunteered to knock on the door of the office and interrupt checking on Suzanne's wellfair.

Suzanne, in due form of her professionalism kept decorum, however you could feel the welcomed interruption. Whilst I remained external and only a few steps away at my desk I did feel the urge to remove Suzanne from the room. However left this with Paula to coordinate.

• [11] Ms Dock's file note as to what occurred at that the 28 March Meeting was as follows:

Around 12:00 on 28 March 2024, raised voices were heard coming from Suzanne LOURDES office. I recognised the voice as being Tablo ARY. I entered the adjoining office where Rita SPENSIERI was sitting to ascertain if there was an aggressive altercation occurring.

After a few minutes the raised voice increased in a very aggressive tone, and I could see Tablo waving his arms around through the frosted glass.

I made the decision to quickly knock and enter to check if Suzanne was feeling threatened.

Upon entering I asked if everything was OK and if Suzanne was feeling threatened.

Upon entering I asked if everything was OK and if Suzanne felt safe.

Tablo spoke first and asked: Why are you here? And I responded that I could hear a lot of shouting which I felt is not appropriate, and I was there purely from a security point of view to check that everyone was safe.

Suzanne responded that she was safe, but asked me to stay for the remainder of her conversation with Tablo. I continued to witness aggressive and challenging behaviour and language.

Tablo's tone towards me was hostile. I reminded him that the conversation was a HR issue, and I was there purely from a security/safety angle.

During the conversation when Tablo was asked about some of his recent behaviours, his responses was:

I asked him to tone down the way he was speaking as it was not appropriate, and his response was "I speak to everyone this way...its who I am"

Suzanne ended the meeting, Tablo left the room and I checked again that she was OK. Suzanne said she did feel safe but was grateful for the intervention.

• [12] On 3 April 2024, the Applicant received a direction to attend a formal meeting in

relation to the 28 March Meeting on the following day. The Applicant was advised the meeting was to discuss insubordination and breaching the bullying and harassment policy (the First Allegations). The Applicant was also advised that he could be accompanied by an independent observer/support person.

• [13] On 4 April 2024, the Applicant attended the meeting regarding the First Allegations with Ms Lourdes, Ms van Rensburg, Ms Dock, and Ms Spensieri (the 4 April Meeting). The Applicant attended with a support Person, Ms Anastasia Vu. All meetings on that day were recorded. In the Hearing the parties were invited to provide an aide memoir listing recording times where they wished to direct the Commission's attention to relevant points. Neither party accepted that invitation. In summary, in those meetings:

(a) Ms Vu dominated the first 45 minutes speaking on behalf of the Applicant. Notwithstanding that it was stated early in the meeting that "OK, So I'll clarify the role of a support person for clarity. This person during the meeting is to act as an observer only, not as an advocate on your behalf."[2] , Ms Vu subsequently acted as the Applicant's advocate;

(b) The allegations were put in summary as follows:

All right, so unacceptable behaviour includes but is not limited to acts of aggression, yelling, shouting, raising your voice in an unacceptable manner, speaking over people, waving your hands in the air, intimidating, swearing, disrespecting people's comments or opinions or directions, being unprofessional in general may lead to formal disciplinary action which could be which could actually lead to termination of employment.[3]

(c) A 10-to-15-minute break was provided for the Applicant to compose himself;

(d) Thereafter there was a further 15 minutes of meeting where the Applicant spoke on his own behalf, with Ms Vu speaking as well; and

(e) After reconvening the meeting, and after 48 seconds, the Applicant claimed he felt "...quite intimidated and really bullied and harassed by the way" he had been treated. The Respondent tried to make enquiries as to how the Applicant would behave in the future but received no sensible responses.

• [14] No disciplinary action was taken in relation to the First Allegations, although it became apparent in the Hearing that the decision to not pursue the First Allegations arose from the Applicant's conduct subsequent to the 4 April 2024 meeting. In particular, that conduct was:

(a) In relation to Ms van Rensburg, the Applicant reported Ms van Rensberg to the Law Society of NSW regarding allegations regarding her conduct at the meeting. The decision of the Law Society was not in evidence, but it seemed accepted by all parties that the complaint was dismissed as baseless.

(b) The Applicant lodged complaints regarding the Respondent's Managing Director, Thibault Janssens, Ms Lourdes, Ms Spensieri, Ms Dock and Ms van Rensberg, by lodging complaints with the Senior Management of the Respondent's coming merger partner (Ceva Logistics) in addition to the Respondent's Senior management.

(c) Ms Lourdes' evidence, which was compelling and which I accept unreservedly, was:[4]

To what extent did this affect you mentally, emotionally?‑‑‑I'm still (indistinct). I mean, I had just given birth to a baby. My son is one and a half right now, and this was happening during my pregnancy. I went on maternity for three months and I came back. This continued also after I returned, and the amount of stress and emotional trauma that I went through because of Mr Ary, I even could not produce milk for my kid. And my doctor asked me am I going through any kind of stress, and I said, 'Not at home but in the office', and it just changed the entire mechanics for me in the household. And my baby had to go on formula after that, so, yes, it's just long‑term effects which I would have wanted differently for my baby. And emotionally it's still very traumatising to see him. The minute I see him, even up until today when I saw him, that entire fear set in again, because of the last encounter I had with him on 28 March where he was shouting my office and waving his hands in the air like he was about hit me. You know, I kept telling him to lower his voice and be respectful but he just said this is how he speaks and I have to deal with it.

• [15] Between 14 February 2024, and 13 April 2024, the Applicant sent confidential company information and employees' personal information to his personal email account. That

(a) Visa documentation of the Respondent's employees, which included visa type, tenure and expiry, visa grant number, employees salaries and visa cost;

(b) The Company's confidential commercial information (including the contract and fee structure) with key suppliers to the Company, being its immigration agent;

(c) The Respondent's employment contracts with its employees and job descriptions;

(d) Correspondence from a senior manager resigning from their employment; and

(e) Historical data of a senior manager's bonus amount.

• [16] The personal information sent by the Applicant related to 93 employees, including passport details, visa details, salary, and other remuneration information.

• [17] Later in April 2024, the Respondent became aware the Applicant had sent the above confidential company information and employees' personal information to his personal email account (the Second Allegations).

• [18] On 17 April 2024, the Applicant was directed to not attend work pending an investigation into the Second Allegations. The Company's letter to the Applicant dated 17 April 2024, advised the Respondent had serious concerns that the Applicant had failed to comply with his confidentiality obligations.

• [19] On 23 April 2024, an investigation meeting into the Second Allegations was scheduled. The Applicant did not attend that investigation meeting.

• [20] Also on 23 April 2024, the Respondent sent the Applicant a letter as follows (the 23 April Letter):

This is a formal meeting to investigate and discuss the following documents which has been forwarded to your personal email account to [redacted]

• Visa matters of employees.
• Bollore immigration agents contracts with fees structure
• Employees employment contracts & JD
• Senior management's recent resignation (email and letter)
• Historical data of Senior management's bonus amount from BIPO
• Another visa matter of another employee with service agreement with visa agent.
• Visa Tracker with approximately 93 employee details containing sensitive information.

• [21] On 29 and 30 April 2024, two further investigation meetings were scheduled, and the Applicant was advised via a letter (the 24 April Letter) it was to discuss:

This is a formal meeting to investigate and discuss the following documents which has been forwarded to your personal email account to [redacted]

• Visa matters of employees.
• Bollore immigration agents contracts with fees structure
• Employees employment contracts & JD
• Senior management's recent resignation (email and letter)
• Historical data of Senior management's bonus amount from BIPO
• Another visa matter of another employee with service agreement with visa agent.
• Visa Tracker with approximately 93 employee details containing sensitive information.

• [22] On 27 April 2024, the Applicant provided a medical certificate stating that he was unfit to attend for work and attend any work/work related meetings until 3 May 2024.

• [23] On 2 May 2024, the Applicant provided another medical certificate stating that he was unfit to attend for work and attend work/work-related meetings until 10 May 2024.

• [24] On 6 May 2024, the Applicant informed the Respondent that he had lodged a workers' compensation claim with iCare.

• [25] On 9 May 2024, the Applicant provided an iCare workers' compensation medical certificate dated 9 May 2024, that stated he was fit for suitable duties between 9 May 2024 and 23 May 2024, on the basis of a return to pre-injury duties 4 days per week.

• [26] On 10 May 2024, the Applicant was directed by the Respondent to attend an investigation meeting on Monday 13 May 2024 via Teams, however the Applicant did not comply with the Respondent's direction.

• [27] Between 9 May 2024 and 24 July 2024, the Applicant produced further certificates of capacity/certificates of fitness, which certified the Applicant was fit to return to pre-injury work-related duties 4 days per week, however the Applicant had not attended for work without the implementation of a return-to-work plan.

• [28] On 24 July 2024, the Applicant advised the Respondent that he would be overseas between 23 July 2024 and 14 August 2024. The Applicant had not sought to confirm that the Respondent had approved his taking annual leave.

• [29] While the Respondent was concerned with the Applicant's conduct in taking leave without authorisation, the Respondent was prepared to retrospectively recognise the absence as annual leave and deduct the Applicant's annual leave balance accordingly.

• [30] On 27 August 2024, the Respondent sent the Applicant a letter that included the following:

(a) specify the Company's serious concerns about your conduct in dealing with confidential information of the Company, including in respect of its employees' personal information;

(b) specify the Company's serious concerns about your conduct in taking unauthorised leave;

(c) direct you to return to work on 28 August 2024; and

(d) specify the consequences that will apply if you fail to comply with the Company's direction.

14 As outlined in the Company's letter to you dated 17 April 2024, we have serious concerns that you have failed to comply with your confidentiality obligations.

29 The Company has not reached definitive investigatory findings, and has not determined a disciplinary outcome, in relation to the matters outlined in this letter. However, if they are confirmed, given their serious nature we confirm that possible disciplinary actions include the termination of your employment with notice or summarily.

• [31] The Applicant attended the meeting with Ms Spensieri, and Mr Luke Latonia, Finance Director (the 28 August Meeting). The Applicant did not attend with a support person, as he claimed 24 hours was insufficient to arrange such support. The meeting on that day was recorded. In the Hearing the parties were invited to provide an aide memoir listing recording times where they wished to direct the Commission's attention to relevant points. Neither party accepted that invitation.

• [32] In the 28 August Meeting, Ms Spensieri outlined documents that the Applicant had sent to his personal email account. When asked why he did so, the Applicant stated that:[5]

(a) When he started at the Respondent his email and laptop were not set up and he was told to use his own;

(b) The documents he sent were in the scope of his work;

(c) His work email did not work at home, so he used his personal email; and

• [33] On Friday 30 August 2024, the Respondent sent a show cause letter to the Applicant in the following terms:

You have been interviewed on Wednesday, 28 August 2024 at 11:30am in the presence of Luc Le Tourneau (Finance Director) and myself - and you were provided with an opportunity to give your feedback in relation to the reasons for your suspension and the second grievance filed against you. We have considered your explanations provided and have responded thereto, in our second letter of even date titled "Response to Meeting held 28 August 2024", Bollore has formed a preliminary view and consider that there are sufficient grounds to terminate your employment. However, a final decision has not yet been made.

A request from you in writing is requested in order to 'show-cause' as to why your employment should not be terminated.

We request this letter from you by the 2 September 2024 by close of business at 5:30 pm.

Please remain at home until further notice. If you fail to provide a written response, we will proceed with the disciplinary process.

• [34] The Applicant responded to the show cause letter on 2 September 2024. That response included the following, with the Respondent's positions in italics:

o A record of the meeting was taken and has been sent to you along with this letter.

No recording attached. There is no recording attached. Only two letters. My request again for a copy of the recording to be send to my email.

o More than 24 hours' notice was provided which under FairWorks is considered a

reasonable amount of time to attend to the necessary.

"...Reasonable amount of time to attend..." differentiates from preparation timing. Given the circumstances, its undoubtedly unreasonable to allocate support person and gather evidence with timing provided. Adequate resources must be provided to ensure procedural fairness. It is well documented and recognised by relevant and governing authorities of Employers providing Show Cause Friday 530pm, with the time line of a reply by Monday 5.30pm.

You have been provided with 24 hours' notice each time you have been called to the

investigatory meeting and have never raised this concern before.

Inaccurate. Response to Tablo Ary - Formal Investigatory Meeting on Monday 29 April 2024 dated 26 April 2024 concern raised "One day's notice is not adequate time to organise a support person."

The allegations against you have not changed from date of issuing the suspension letter, which you have been aware of since 17 April 2024.

Inaccurate. The Letter from Bollore to Tablo Ary - Employment issues and concerns dated 27 August 2024 provided further alleged allegations and allegation specifics, provided 30 August 2024, IN ADDITION to those of 17 April 2024, requiring in depth preparation, time and access to the evidence itself to response. Therefore it is clearly obvious to myself, the intention not to allow Return to Work and or to accept time is necessary to recovery from My Injuries.

Your Bollore outlook email account was fully operational, both in and outside the office, from the day that you commenced your day-to-day activities for Bollore until your emails were suspended on 17 April 2024.

Inaccurate. I have continuously explained (again, and yet again) l'm unable to work from home due to email application error on my work laptop. I was able to send emails with my phone from home. I was unable utilise my phone email for large attachments hence requiring personal email to work from home. Bollore Logistics is NOT PERMITTING me to provide evidence to absolve myself. Bollore Logistics has continued their investigation to conclude outcome(s) for dismissal. The evidence is on my work laptop which was blocked the day of my stand down whilst I was working from home. This evidence is crucial and it able to absolve these allegations, however, Bollore will not allow the access of the evidence and it appears ignoring as it will undoubtedly prove their allegations are false. It is not procedurally fair when the employer withholds access to the very evidence forming the primary cause of their intention to dismiss.

No B'Care tickets were sent by you, to the IT Department, to advise that your emails were not working from home.

Inaccurate. I'm willing, but not able or given the opportunity as My Employer is denying access to this evidence.

Suzanne Lourdes strongly denies ever indicating to you to use your personal email

VASTLY Inaccurate.. Refer Annexures C. Suzanne Lourdes and Rita Spensieri sent confidential information (organisational chart and excel file containing Sydney staff home-residential addresses) to my personal email address, which given these allegations

against me, they also stand to breach these same allegations. I'm able to provide further evidence Rita Spensieri sent an email from a personal email to my work email on a weekend (March to June 2023 - months are estimates only).

These examples, directions and actions of both Suzanne Lourdes and Rita Spensieri are

considered acceptable, but it is a cause for investigation and termination of myself. Bollore Logistics is an Equal Opportunity Employer (EEO) in clear breach of the Anti-Discrimination Act 1977

Whilst considered not only acceptable but also standard practice for Suzanne Lourdes and Rita SPENSIERI, myself a junior employee (my first job ) to face termination by my Senior Management who has set precedence.

The refusal and denial for the retrieval of crucial evidence to prove otherwise cannot be

interpreted other than my employer's clear intentions to termination.

You had no authorisation to send confidential and private information outside your scope of work, to your private email and for you to aver otherwise we find troublesome:

a. As a Junior recruitment business partner, bonus information of senior management is not part of your work;

Inaccurate. Refer Annexure D. Suzanne Lourdes has assigned myself management of HRIS (BIPO) data accuracy and ad-hoc Payroll requests. I was instructed to merge payroll system and all employee salary details with BIPO ensuring merger data accuracy.

b. Employee contracts (in particular that of Helerene and Zhiyi's) which was finalised 2 years and 6 months respectively, after their appointments had been made;

Inaccurate Refer Annexure D. Suzanne Lourdes has assigned myself personnel files cleanup. I was instructed to check all employee personnel files regardless of employment longevity to determine employment contract, job description and working rights compliance.

c. Visa supplier details - you had no business dealings with these suppliers;

Inaccurate. Refer to annexure D. Suzanne Lourdes has assigned myself management of inputting data on HRIS (BIPO) inclusive of all visa details for visa nominated employees.

d. An employee's child's photo, which is clearly outside your scope of work;

Inaccurate. Refer to annexure D. Suzanne Lourdes has assigned myself personnel files cleanup inclusive of working rights compliance. Given passports possess information checked against visa details and conditions criteria, I was instructed to verify working rights with visa conditions inclusive of employee dependents.

It has not been made clear which/whom 'employee's child's photo/' . I was not advised in the Formal meeting, show of this specific allegation and it has only been alleged in the first instance as of 30 August 2024 . I cannot refute or provide a reply without knowing what the actual allegation is.

e. Visa grants (again that of Helerene in particular) which you had no dealings with, which had been approved 2 years ago and required no further action;

Inaccurate . Refer Annexure D. Suzanne Lourdes has assigned myself personnel files cleanup. Given visa conflictions, I was instructed to verify all recorded visas to determine condition compliance between expired and expiring visas.

f. Confidential resignation letters of senior management to yourself which you are clearly not privy to etc.

Inaccurate . Refer Annexure D. Suzanne Lourdes has assigned myself management of inputting data on HRIS (BIPO) for all employees. I require access to resignation letters to input the exit date and resignation reason on BIPO. I'm privy of this information and exit forms and resignation letters of senior management have been sent to me to input information, i.e. Tony Clark's resignation.

• [35] On 6 September 2024, the Respondent sent a letter to the Applicant terminating his employment on the grounds of serious misconduct. In response to the Applicant's correspondence of 2 September 2024, the Respondent advised:

We have received your email dated 2 September 2024 at 4:14 pm and in response to this email I refer to the below:

• Bollore Logistics Australia gave you over 24 hours' notice to reply to the 'Show-Cause' letter, which is a reasonable amount of time to indicate to us as to why we should not terminate your employment. We remind you that this matter has been pending since April 2024, the facts and circumstances pertaining to the grievance have not changed since then. Additionally, there is no 'New Allegations' showing a predetermined outcome. Our contentions remain consistent with our previous correspondences.

• Almost a week has passed since the 'Show Cause' letter was sent, before we have come to our final view.

• 'Feedback' is your opportunity to respond to the 'Show-Cause' letter which we issued you, this should be clear enough without further explanations.

• During the formal meeting of 28 August 2024 we provided you with examples of the 'Evidence' of the Company and Private Information that you, without consent, sent to your Gmail Account.

• The documents you provided do not show why you had to send Confidential and Private Information externally during the period between February and April 2024.

• The inconsistencies between your medical certificate and Certificate of Capacity is again noted. We repeat that you were not asked to resume your normal duties until the serious misconduct grievance process had been finalised.

• [36] In the Hearing a document titled "Tablo Helpdesk Incidents" was tendered without objection.[6] That document disclosed the Applicant only "logged a ticket" with the Respondent's IT Helpdesk on one occasion on 29 May 2023, which was resolved by 3 June 2024.

• [37] Also in the Hearing, the Applicant challenged the Application of the Confidentiality Policy of the Respondent, noting it was dated 30 April 2024. The Applicant's evidence was:[7]

MS VAN RENSBURG: Okay, Mr Ary. All the other clauses that are referred to, you were in breach of that at any point in time? Are you referring to the confidentiality clause?

Yes? That clause was created on 30 April, 13 days after my standdown. I cannot break a clause in the future. I mean, the rule's not created yet.

I'm sorry, can you explain that again? Jesse, are you able to locate the confidentiality page or

THE DEPUTY PRESIDENT: Yes. If you look at page 21 of the court book? --- If you look at the bottom, it says 30 April 2024, the date the form was created. So and my standdown was on the 17th, so I possibly cannot break a rule in the future.

• [38] Quite clearly, the Confidentiality policy referred to was "Version 2". Version 1, effective 1 March 2020, was tendered, and provided:

2.1 Confidential and sensitive information is any type of information that is private, personal or could affect the integrity of the company or put the primary purpose/aim of the company in jeopardy. Confidential information is not information for public knowledge and is usually on a need to know basis.

2.2 This policy applies to all staff and contractors at Bollore' Logistics Australia Pty Limited and will replace all other Confidentiality Policies effective from 1 March 2020.

3 .1 All employees will have access to some type of confidential information during their employment cycle. All information that an employee has access too, should not leave Bollore' Logistics premises without the expressed permission of senior management.

3.2 Bollore' Logistics strictly prohibits information on its rates, process, agreements, etc being released to its competitors or other third parties. Bollore' Logistics does not allow for confidential information to leave its premises nor does it allow an employee to bring in confidential information from a competitor or third party on to Bollore' Logistics premises.

5.1 All confidential information should be kept securely. All paper copies of confidential or sensitive information should be locked away and only individuals that require access to that information will be able to access it. All electronic copies of documents should be kept in a secure folder that only the relevant people have access too. All information relating to the company's business a should be kept on a secure system, that has a password. It is your responsibility to ensure that all confidential information is held securely by you, whether electronic or paper. Any confidential information that is no longer required and has been printed should be shredded.

• [39] While the Respondent clearly considered there to be a breach of confidential information, it had done nothing to report such breach. The evidence of Ms van Rensberg was:[8]

And you're listed as the respondent's Data Protection Officer? --- Yes.

And as the respondent's Data Protection Officer, is it correct that you hold the responsibility to notify the Office of the Australian Information Commissioner when a data breach has occurred?--- Yes.

Ms van Rensburg, you were made aware in April 2024 that the applicant, Mr Ary, had allegedly sent a number of emails containing personal and sensitive information of the respondent's employees to his personal email account? --- Yes.

Would you say that this conduct constitutes a data breach pursuant to the policy?--- Yes.

So is it safe to say then, Ms van Rensburg, that you reported this conduct to the Office of the Australian Information Commissioner? --- We did not, because we are awaiting the outcome of this, and the confirmation that we asked for in his statutory declaration.

But regardless of the outcome in these proceedings, you became aware of this supposed data breach 10 months ago, and it's correct that no report has been made to the Information Commissioner at this time? --- Yes.

Have the 93 employees whose data was purportedly subject to breach by Mr Ary been notified of this data breach? --- No.

I put it to you that if it was a serious data breach you would have notified the Information Commissioner? --- Well, I explained we haven't notified the Information Commissioner as yet. We were awaiting the outcome of these proceedings, because the applicant is vehemently denying that he did anything with the information, and we would like to see the outcome of the proceedings to take it further.

• [40] The Applicant submitted that his conduct did not form a valid reason for termination for misconduct, particularly highlighting the onus on the Respondent to prove serious misconduct, noting that:

(a) The Respondent was aware of, and condoned, the Applicant forwarding information to his personal email account for the purpose of performing work from home, given he was unable to access his work account;

(b) The IT issue was the sole purpose that the Applicant sent the emails to his personal account;

(c) The practice of sending confidential information to or from personal emails accounts was engaged in by Ms Lourdes and Ms Spensieri;

(d) Even if the Applicant was found to have misconducted himself in sending emails to his personal account, that conduct was incapable of giving rise to any sound, defensible or well-founded reason for the Respondent to terminate the Applicant for serious misconduct, and the Respondent failed to consider alternative disciplinary actions (such as a final warning, among other things); and

(e) Pursuant to page 6 of the Contract, the Applicant "must not disclose to any third party, any confidential information", other than in the proper performance of his duties. In this regard, the Applicant denied that he disclosed confidential information to any third party, and therefore denied that any breach of the Contract occurred

• [41] The Applicant submitted that the dismissal was in fact spiteful and capricious and was ultimately carried out due to a personal grudge held against the Applicant, which was established in the Applicant's evidentiary materials. He submitted that an employer's response should be proportionate to the misconduct in question and that the punishment should "fit the crime".

• [42] The Applicant further submitted that having regard to:

(c) Evidence the Applicant was a valued and committed member of the team (as evidenced by the March 2024 Performance Review),

that the Termination was grossly disproportionate with regard to the conduct in question and was manifestly harsh and "did not fit the crime". The Respondent had other, more proportionate, disciplinary options available to it in the event that it felt so strongly about the allegations but ignored or refused to consider them.

• [43] The Applicant submitted that, although he was offered the opportunity to respond to the allegations, section 387(c) of the Act requires the Commission to consider whether the Applicant was given an opportunity to respond to the Allegations. The Applicant submitted that he was not offered a true opportunity to respond to the Allegations, as:

(a) The 28 August Meeting was called at short notice, and was not rescheduled at the Applicant's request, such that the Applicant did not have an adequate opportunity to consider and respond to the allegations outlined in the 27 August Letter;

(b) The Condition suffered by the Applicant impeded his mental state to respond to allegations;

(c) The Respondent refused to provide the Applicant with access to his work email address for the purpose of locating evidence that would have assisted the Applicant in responding to the allegations; and

(d) The Respondent had reached the predetermined outcome to effect the Termination some time prior to the 28 August 2024.

• [44] The Applicant submitted that section 387(d) of the Act requires the Commission to consider whether the Respondent unreasonably refused to allow the Applicant to have a support person present to assist at any discussions relating to the Termination. The Respondent's actions, in scheduling the 28 August Meeting with only 24 hours' notice, and engaging in intimidatory conduct towards the Applicant's choice of support person at the 4 April Meeting effectively deprived the Applicant of the opportunity to have a support person present at the 28 August Meeting.

• [45] The Applicant submitted that the Respondent is a multinational organisation, and its operations in Australia include dedicated human resource and in-house legal departments. In this regard, it should be expected of the Respondent to ensure its full compliance with the requirements of the Act.
• [46] Regarding other relevant matters to be considered pursuant to s.387(h) of the Act, the Applicant submitted the Commission should give consideration to the following matters in relation to the Application:

(a) The process followed by the Respondent did not take into consideration the Applicant's ability to respond and mental health as a consequence of suffering the Condition;

(b) The Applicant had a previously unblemished work performance and history;

(c) The Termination occurred by way of email sent to the Applicant on 6 September 2024;

(d) Previous instances of employees sending confidential information to a personal email address has not been subject to disciplinary action; and

(e) The impact of the dismissal, taking into account the Applicant's Condition, which is impeding his ability to find alternative work, has had a catastrophic impact on the Applicant's personal and economic situation.

• [47] Regarding remedy, the Applicant submitted he should receive the maximum compensation that could be ordered, taking into account:

(a) The harshness and lack of justification for the dismissal;

(b) The complete lack of procedural fairness afforded to the Applicant in respect of the dismissal;

(c) The Applicant's personal circumstances, which have impeded on his efforts to mitigate the loss suffered;

(d) The reputational damage that has been caused to the Applicant; and

(e) The remuneration that the Applicant would have received, and would continue to be receiving, if he had not been dismissed.

• [48] The Respondent submitted that following the investigations, the decision to dismiss the Applicant was made due to the fact that the Applicant:

(a) Failed to comply with his express duties under the Contract by failing to comply with the Respondent's Policies and procedures, together with all reasonable directions given to Applicant by the Respondent;

(b) Failed to comply with the express confidentiality obligation under the Contract to not disclose any confidential information;

(c) Failed to comply with the express obligation under the Contract to not do anything which may adversely affect the reputation or goodwill of the Respondent;

(d) Failed to comply with the express obligation under the Contract to not use the Respondent's email facilities to distribute material that is unlawful to do in Australia; and

(e) Failed to comply with implied obligations at law to keep the Respondent's information

confidential, not act in a manner contrary to the Respondent's interests.

• [49] The trust and confidence in the Applicant were undermined by the above misconduct, beyond repair. The Respondent's decision to dismiss the Applicant was in direct proportion to the misconduct perpetrated. The Applicant's employment in the Human Resources Department dictated an utmost degree of confidentiality and trust.

• [50] The Applicant was provided with an opportunity to explain himself regarding the Second Allegations no less than five times.

• [51] The Respondent submitted that procedural fairness was afforded to the Applicant. The Applicant was notified in writing of the dismissal on 6 September 2024.

• [52] The Applicant was provided with the reasons which may occasion dismissal on 24 April 2024 and 28 August 2024. The Applicant was given a show cause letter on 30 August 2024.

• [53] A support person was never refused. The Applicant had more than four months to secure a support person for the 28 August meeting.

• [54] The Respondent does have a Human Resources and Legal Department and has resources in place to ensure that due process is followed and that decisions are made based on facts and evidence.
• [55] Regarding the issues raised by the Applicant pursuant to Section 378 (h) of the Act, the Respondent submitted:

(a) The Respondent did not take disciplinary steps for more than four months, to try and accommodate Applicant's Condition, however the situation became untenable as the Respondent had to analyse the risk involved pertaining to the data breaches;

(b) The Applicant's work history was not unblemished. Nonetheless it was irrelevant given the severity of the misconduct;

(c) Dismissals may occur in writing and still be procedurally fair;

(d) Administrative e-mails were sent to the Applicant's Gmail account by the Respondent when the Applicant commenced his employment with the Respondent since his laptop was not yet set up. No confidential data was sent to private email addresses; and

(e) The Respondent cannot be at fault for Applicant's alleged economic loss suffered by not finding new employment;

• [56] Regarding remedy, the Respondent submitted that the Applicant received more than four months of remuneration, to which he was not entitled, whilst he refused to attend the second investigatory meeting. Had the Applicant attended the first meeting in April 2024, the Respondent would not have suffered economic loss. No medical report or certificates provided confirmed that the Applicant could not continue with the disciplinary process. The certificate of competency stated that the Applicant was fit to work four days a week. The Applicant's Condition may have influenced his daily work functions, had he remained employed, however the Condition does not give a right to the Applicant to escape liability for serious misconduct and harm caused to other employees.

• [57] The Applicant has not mitigated his alleged economic loss suffered. The Applicant has not demonstrated any reasonable efforts to find alternative employment.

• [58] While the Applicant failed to file materials in reply, various reply submissions were made in the Hearing.

• [59] The Applicant submitted that, although the standard of proof remains the balance of probabilities, given the dismissal was for serious misconduct, the satisfaction that this standard of proof has not been achieved by the Respondent, and should not be satisfied by inexact proofs, indefinite testimony, or indirect inferences.

• [60] The Applicant had put forward a sound explanation as to why he forwarded emails to his personal account, in that it was due to IT issues that were occurring on the Applicant's work laptop. He further submitted that the Respondent was aware of the practice of sending confidential information to or from personal email accounts. The Applicant further denied that he has breached any contractual obligation to the Respondent. The relevant contractual clause, as to confidentiality, states that, 'The employee must not disclose to any third party, without authorisation, any confidential information'. The Applicant denied that he had disclosed any confidential information to an unauthorised third party and noted that no such conduct has been alleged by the Respondent.

• [61] The Respondent's case rests on the Applicant forwarding a number of emails containing confidential information, belonging to the Respondent, to his personal email address. The Applicant maintains that the sole reason that he engaged in this course of action was so he could perform work from home, owing to technical issues that he faced when attempting to access his work email account on his laptop outside the office.

• [62] The Applicant provided evidence that it was common practice, in the Respondent's business, to send emails containing confidential information to or from personal email addresses. He further confirmed that at no time had he distributed any confidential information to an unauthorised third party.

• [63] The Applicant submitted that he was not, during the course of his employment, directed by the Respondent to read Company policies, or be made aware of his obligations pursuant to such policies. The Applicant gave evidence that, to the extent he was required to undertake induction training, the training was limited to materials produced by the Respondent's head office in France, and that it was not related to the policies in Australia that the Respondent has produced in response to the Application.

• [64] There are no jurisdictional objections to the Application being determined by the Commission. Specifically, I am satisfied that:

a) the Applicant was dismissed at the initiative of the employer (ss 385(a) 386(1)(a));

b) his unfair dismissal application was lodged within the 21-day statutory time limitation found at s 394(2) of the Act;

1. the Applicant is a person protected from unfair dismissal in that:

1. he had completed the minimum employment period set out in ss 382 and 383 of the Act; and

1. his income was below the high income threshold;

d) his dismissal was not a case of genuine redundancy (s 385(d)); and

e) his dismissal was not a case involving the Small Business Fair Dismissal Code, as the respondent employs more than 100 employees (s 385(c)).

• [65] Section 385 of the Act defines an unfair dismissal based on four criteria there set out, each of which must be satisfied if the person seeking a remedy from unfair dismissal is to succeed. The section reads:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal

(d) the dismissal was not a case of genuine redundancy.

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

• [66] The matters to be taken into account under s 387 of the Act are:

(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.

Section 387(a) - whether there was a valid reason(s) for the applicant's dismissal

• [67] In Rode v Burwood Mitsubishi,[9] a Full Bench of the then Australian Industrial Relations Commission discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and referring to Selvachandran v Peteron Plastics Pty Ltd [10](Selvachandran). The Full Bench found:

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant's submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.

• [68] The reason for termination was clearly outlined in the Termination Letter as "Breach of personal / sensitive / confidential information to your email account". There is no dispute that the subject information was sent to the Applicant's email account.

• [69] Determining the validity of that reason necessarily involves considering the explanations of the Applicant as to why such clearly confidential information was sent and assessing the candour of the Applicant. Based upon my observation of the Applicant in his evidence, I found him to be a witness who would provide answers aimed to exculpate him, rather than truthfully answering questions. The primary example of such tendency was the assertion by the Applicant that he could not have breached the Confidentiality Policy as it was made on 30 April 2024, 17 days after alleged breach. His evidence was:[11]

Mr Ary, do you agree that you breached this clause? --- No, I don't agree, because in page 323, this policy was made on 30 April, 30 days after my standdown.

Mr Ary, your employment contract states that you agree to company policies as is updated from time to time. Do you agree with that? --- But my - but my standdown investigation was based on the 17th. I cannot be liable for future clauses when the investigation is going based on the 17th.

• [70] Quite clearly the Confidentiality policy dated 30 April 2024, was the second version of such policy, with the first version being issued on 1 March 2024. Clause 3.1 of that policy included:

All information that an employee has access too (sic_.), should not leave Bollore' Logistics premises without the expressed permission of senior management._

• [71] As identified above, the Applicant accepted that he had been trained regarding compliance with policies and the Code of Conduct as an HR representative, particularly in his induction, and that he had had online training about compliance.[12]

• [72] The Applicant's claims that the Respondent had sent emails to his home email address was also an example of the Applicant clutching at straws. It was clear that emails had been sent to his home email address in the very early stages of his employment when his work email address was being set up, and that once that had occurred no such correspondence was sent to that home email address.

• [73] I consider it fanciful to suggest that an HR professional, albeit in a junior position, trained as the Applicant was, would consider it allowable to send to his home email address without any authorization:

(a) Information that compromised 93 employees' personal data (including visa information, passport details, and remuneration);

(b) Confidential commercial information (including the contract and fee structure) of a key supplier; and

(c) Employment contracts with certain employees, employee job descriptions, correspondence from a senior manager resigning from their employment; and historical data of a senior manager's bonuses.

• [74] I also consider it of note that the confidential information was sent in a short and confined period of time around the First Allegations. It was obviously not something that would occur, or had ever occurred, in the ordinary course of employment. Disclosure of such confidential information would present a serious risk to the reputation of the Respondent's business.

• [75] I find that the conduct alleged to have been engaged in by the Applicant actually occurred and constituted serious and wilful misconduct. The Applicant's conduct was wilful, deliberate and inconsistent with the continuation of his employment.

• [76] That conduct, involving such wilful and deliberate behaviour inconsistent with the continuation of the Contract, and risking the reputation of the Respondent's business, constituted serious misconduct as defined in clause 1.07 of the Fair Work Regulation 2009.

Section 387(b) - Notification of the reason for the dismissal

• [77] I reject the Applicant's submission that the Respondent had predetermined to carry out the dismissal. The fact that the Respondent waited 4 months, and paid the Applicant during that period, certainly discloses a desire to receive a response from the Applicant.

• [78] I also reject any suggestion that the alleged misconduct was not sufficiently detailed. The 23 and 24 April Letters both outlined:

• Visa matters of employees.
• Bollore immigration agents contracts with fees structure
• Employees employment contracts & JD
• Senior management's recent resignation (email and letter)
• Historical data of Senior management's bonus amount from BIPO
• Another visa matter of another employee with service agreement with visa agent.
• Visa Tracker with approximately 93 employee details containing sensitive information.

• [79] The 24 hours' notice provided to the Applicant was more than enough when the Applicant had been for so long aware of the allegations against him. Having listened to the recording of the 28 August meeting it is apparent that the Applicant had no difficulty representing himself.

• [80] The Respondent's criticism of the Applicant failing to attend 8 meetings disregards that for the first 7 of those meetings occurred prior to 10 May 2024, and the first workers compensation certificate of capacity that stated he could work 4 days a week was dated 16 May 2024.[13]

• [81] The Applicant was notified of the reason for the dismissal in the Termination Letter. That correspondence gave a detailed explanation of reasons.

Section 387(c) - Opportunity to respond to any reason

• [82] The Applicant was provided with an opportunity to provide to the Second Allegations, in the meeting on 28 August 2024.

Section 387(d) - Unreasonable refusal by the employer of a support person

• [83] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

• [84] I consider that 24 hours was more than enough time for the Applicant to arrange a support person. That he failed to do so does not invite criticism of the Respondent.

• [85] The dismissal was not for unsatisfactory performance, and this is not a relevant consideration.

Sections 387(f) and 387(g) - The size of the employer's enterprise/human resources

• [86] The Respondent is a large employer, with access to dedicated human resource managers. I consider the size of the Respondent would not have affected the procedures followed in effecting the dismissal.

• [87] The Applicant submitted that the Commission should give consideration to the following matters in relation to the Application:

(a) The process followed by the Respondent did not take into consideration the Applicant's ability to respond and his mental health;

(b) The Applicant had a previously unblemished work performance and history;

(c) The Termination occurred by way of email sent to the Applicant on 6 September 2024;

(d) Previous instances of employees sending confidential information to a personal email address has not been subject to disciplinary action; and

(e) The impact of the dismissal, taking into account the Applicant's condition, which is impeding his ability to find alternative work, has had a catastrophic impact on the Applicant's personal and economic situation.

• [88] I do not consider that the Applicant's mental health was a relevant factor. From 16 May 2024 he was certified fit for work 4 days a week. That diagnosis does not support a submission that the Applicant was seriously affected by his mental health.

• [89] The Applicant's submission that he had a previously unblemished work performance and history invites consideration of the First Allegations, in relation to which relevant evidence of multiple witnesses for the Respondent were not put in issue. Due to the weight of that evidence, I have no difficulty in concluding the First Allegations would have been established if pressed, and that the Applicant did not have an unblemished work history

• [90] I do not consider that the eventual termination by email is a relevant consideration. There had been numerous meetings, and attempts to arrange meetings, and the termination email merely conveyed the final decision.

• [91] Finally, as found above, the Applicant's claims that the Respondent had sent emails to his home email address was only that emails had been sent to his home email address in the very early stages of his employment when his work email address was being set up, once that had occurred no such further correspondence was sent to that home email address.

• [92] I have made findings in relation to all matters specified in s 387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.

• [93] I have found the Respondent had a valid reason for the dismissal of the Applicant, and that procedural fairness was afforded to the Applicant. I therefore do not find that the dismissal of the Applicant was harsh, unjust or unreasonable.

Mr Stefanson‑Bloomfield, on behalf of the Applicant.

[10] [1995] IRCA 333; (1995) 62 IR 371

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