Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - valid reason - dismissal not harsh, unjust or unreasonable - application dismissed.

[1] Mr Patrick Longobardi was employed by New Horizons Enterprises Limited (New Horizons) as a support worker from November 2017 until his summary dismissal on 10 December 2020. Mr Longobardi contends that his dismissal was harsh, unjust and unreasonable. New Horizons denies those allegations.

[2] I conducted a determinative conference in relation to the matter on 16, 17, 29 and 30 March 2021.

[3] Mr Longobardi gave evidence in support of his claim. He also adduced evidence from Mr Michael Potts, support worker for New Horizons, Ms Sunilla Rao, support worker for New Horizons, and Ms Des-Lee Adam, support worker for New Horizons.

[4] New Horizons adduced evidence in support of its case from Ms Meegan Cobner, Regional Lead, Inclusion Services for New Horizons, Mr Luke Buckley, Customer Service Ops Manager - Housing & Independent Living for New Horizons, Mr Daniel Ansell, Regional Lead - Housing & Independent Living for New Horizons, Ms Joanne Settle, People and Business Enabler - Housing & Independent Living for New Horizons, Mr Raymond Miles, People and Business Enablement Lead for New Horizons, Ms Jade Scullion, support worker for New Horizons, Mr Brendan Burnett, Nursing Unit Manager, Wyong Mental Health Unit, Central Coast Local Health District, and Ms Rebecca Midson, Clinical Nurse Consultant, Central Coast Local Health District.

[5] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of Mr Longobardi's application.

[6] There is no dispute between the parties and I am satisfied on the evidence that:

(a) Mr Longobardi's application was made within the period required in s 394(2) of the Fair Work Act 2009 (Act);

(b) Mr Longobardi was a person protected from unfair dismissal;

(c) New Horizons was not a "small business employer" as defined in s 23 of the Act, so the Small Business Fair Dismissal Code does not apply to the dismissal; and

(d) Mr Longobardi's dismissal was not a case of genuine redundancy.

[7] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Longobardi's dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.

Was there a valid reason for Mr Longobardi's dismissal (s 387(a))?

[8] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.[1] The reason for the dismissal should be "sound, defensible and well founded"[2] and should not be "capricious, fanciful, spiteful or prejudiced."[3]

[9] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[4] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees).[5]

[10] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.[6] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[7]

[11] The employer bears the evidentiary onus of proving that the conduct on which it relies took place.[8] In cases such as the present where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.[9]

[12] In Patrick Stevedores Holdings Pty Ltd v CFMMEU,[10] Justice Lee made the following useful observations about the Briginshaw standard and its impact on fact finding and the state of satisfaction required [references omitted]:

"Fact Finding and the State of Satisfaction Required

14. It is trite that both Patricks and Qube are required to prove their case on this liability hearing to the civil standard having regard to the degree of satisfaction required by s 140 of the EA. This section requires the court, in a civil proceeding, to find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. In deciding, in a civil case, whether it is satisfied that the case has been proved, the court is to take into account: (a) the nature of the cause of action or defence; (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. Although the standard of proof remains the balance of probabilities, the degree of satisfaction varies according to the seriousness of the allegations made and the gravity of the consequences (if the allegations are found to be correct): see EA s 140.

15. Importantly, the factual allegations made by both Patricks and Qube are not only foundations for the nature of the relief dealt with at this liability hearing (that is, declarations of contraventions of the FW Act), but are also the foundations for the deferred relief, that is, the imposition of pecuniary penalties.

16. It is well-established that s 140 reflects the common law as explained seminally by Dixon J in Briginshaw v Briginshaw. As the Full Court noted in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission:

The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.

Even though he spoke of the common law position, Dixon J's classic discussion in _Briginshaw..._at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the [EA] now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact. But he recognised that (Briginshaw 60 CLR at 361-262):

'No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences...

Dixon J also pointed out that the standard of persuasion, whether one is applying the relevant standard of proof on the balance of probabilities or beyond reasonable doubt, is always whether the affirmative of the allegation has been made out to the reasonable satisfaction of the tribunal. He said that the nature of the issue necessarily affected the process by which reasonable satisfaction was attained. And, so, he concluded that in a civil proceeding, when a question arose whether a crime had been committed, the standard of persuasion was the same as upon other civil issues. But he added, weight must be given to the presumption of innocence and exactness of proof must be expected (Briginshaw 60 CLR at 362-363).

1. It is also clear that so-called "Briginshaw principles" apply to civil penalty proceedings (which is a particular example of the application of s 140(1) of the EA)..."

[13] During the determinative conference Mr Miles confirmed, on behalf of New Horizons, that the conduct on which it was relying to support its defence of Mr Longobardi's unfair dismissal claim was the "specific misconduct" set out in the termination letter dated 10 December 2020. The termination letter relevantly provides:

1.1 Unreasonable behaviour in the workplace where you made numerous phone calls to the Wyong Mental Health Unit where you were found to be aggressive, unreasonable and used offensive language.

1.2 Observed by an RN at the hospital telling a NH customer to 'shut up' when she was discussing her delusional content.

1.3 While being stood down pending an investigation you failed to keep confidential any matter discussed during the investigation process.

You verbally abused and harassed Inclusion team members when they rang the property regarding service to customer PB, stating that they were "ripping the customer off".

3. You sent private and confidential information relating to a customer of New Horizons to an external email address at [email address removed] .

4. You breached New Horizons Policies and Procedures and Code of Ethical Conduct."

[14] The Commission is not bound by the rules of evidence and procedure in relation to a matter before it.[11] The Commission does, however, tend to follow the rules of evidence as a general guide to good procedure.[12]

[15] Much of the evidence relied on by New Horizons to support these allegations was hearsay. I admitted into evidence the hearsay material relied on by New Horizons. As part of my consideration of each allegation relied on by New Horizons, I will consider how much, if any, weight should be attributed to the hearsay material. A number of authorities are relevant to this issue.

[16] In Pochi v Minister for Immigration and Ethnic Affairs,[13] Justice Brennan, then President of the Administrative Appeals Tribunal of Australia, made the following observations (at 491-2):

"How are facts to be proved, and how is the sufficiency of proof to be determined when there are no rules of evidence binding upon either the Minister or the Tribunal? Section 33(1)(c) of the Administrative Appeals Tribunal Act provides that: 'the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.' Although the Tribunal is governed by statute in the approach which it must take in assessing the evidence, and the Minister is not, I do not know that the statute confines the Tribunal to an approach which is more restricted than the approach which the Minister might properly take in assessing the same evidence. The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that 'this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force', as Hughes C.J. said in Consolidated Edison Co. v. National Labour Relations Board. To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J. pointed out, though in a dissenting judgment, in The King v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott: 'Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, 'bound by any rules of evidence'. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer 'substantial justice''. That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence. Diplock L.J. in R. v. Deputy Industrial Injuries Commissioner; Ex parte Moore said: 'These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than that it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.'"

[17] Secretary, Department of Human Services v Sanding[14] concerned an application for judicial review of a decision of the Children's Court, a tribunal that is not bound by the rules of evidence. In that case Bell J made the following observations (at [133]):

"The material which may properly support a decision of a court or tribunal can legitimately come from a variety of sources, might occupy different points along a spectrum of probative force and reliability and, depending on the issues and circumstances, might require different treatment. Hearsay evidence is admissible if it is fairly reliable, although the weight to be given to it will need to be considered. Evidence which is not the best evidence may be admitted, but if it is challenged and the issue is important it is the best evidence which may be required. The court or tribunal may act on written submissions containing assertions of fact, and statements made from the bar table by the parties or their legal representatives, but if the asserted facts are in serious dispute and concern important issues, it may be necessary to insist on much more."

[18] In the Enterprise Flexibility Agreements Test Case,[15] a Full Bench[16] of the Australian Industrial Relations Commission made the following observations in relation to the principles of natural justice in the context of non-disclosure of the names of union members:

"It is clear that members of the Commission are bound to act in a judicial manner and the principles of natural justice are applicable to hearings before the Commission (R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Re Australian Bank Employees Union; Ex parte Citicorp Australia Limited [1989] HCA 41; (1989) 167 CLR 513; 29 IR 148).

The term natural justice in the context of administrative decision-making has been essentially equated to an obligation to act fairly or to accord procedural fairness (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 585 per Mason J).

The requirements of natural justice or procedural fairness are not prescribed in a fixed body of rules. What is required in one case may be quite different from what is required in another. In Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 Tucker LJ said:

'The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.'

Further in Mobil Oil Australia Pty Ltd v Commission of Taxation (Cth) [1963] HCA 41; (1963) 113 CLR 475 at 504 Kitto J said:

'What the law requires in the discharge of a quasi-judicial function is judicial fairness. This is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances.'

The task of determining whether there has been adequate compliance in a particular case may often present difficulty.

In these proceedings Mr I Douglas QC has argued that it is a denial of natural justice to have evidence adduced against a person without that person knowing what the evidence is and being given an opportunity to test the evidence. Two authorities are relied on in this regard: City of Brighton v Selpam [1987] VicRp 5; [1987] VR 54 at 59; Hurt v Rossall [1982] FCA 188; (1982) 64 FLR 102 at 110. It is argued that the application of this proposition to the issue before the Commission requires that the names of those employees said to be union members must be disclosed when eligible union status is contested. Generally, parties must be provided with an adequate opportunity to challenge or contradict material advanced against them (Board of Education v Rice [1911] UKLawRpAC 18; [1911] AC 179 at 182 per Lord Loreburn LC). However, it does not necessarily follow that the only method of challenge or contradiction which would be regarded as acceptable is the capacity to cross-examine the author of such material (T A Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 at 995; R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228)."

Allegation 1.1 - phone calls to the Wyong Mental Health Unit

[19] This allegation may be conveniently divided into two parts. The first part concerns an allegation that Mr Longobardi made an abusive and aggressive telephone call to Ms Midson on 9 October 2020. The second part concerns an allegation that Mr Longobardi made a number of abusive and aggressive telephone calls to unnamed employees of the Central Coast Local Health District on 9 October 2020. Mr Longobardi denies both parts of the allegation and relies on phone records which he says demonstrate that he only made three telephone calls to employees of the Central Coast Local Health District on 9 October 2020.

[20] As to the first part, Ms Midson was called to give evidence, by telephone, in the proceedings. She was cross examined by Mr Longobardi. Ms Midson gave evidence that on 9 October 2020 she was the Acting Operational Nurse Manager of the Mental Health Unit in the Central Coast Local Health District and a telephone call from "Patrick" was put through to her extension. Shortly after the call Ms Midson prepared a contemporaneous file note by sending an email to herself in which she described the conversation with Mr Longobardi. At 11:52am on 16 October 2020 Ms Midson was copied in to an email from Mr Burnett in which Mr Burnett provided a summary of information he had received from individual staff members who had received calls made by "Patrick".[17] On receipt of the email from Mr Burnett, at 1:26pm on 16 October 2020 Ms Midson sent an email to Mr Burnett and others setting out her account of her conversation with "Patrick" on 9 October 2020.[18] Ms Midson prepared that email by cutting and pasting from her contemporaneous email sent to herself after her call with Mr Longobardi on 9 October 2020. The content of Ms Midson's email, sent at 1:26pm on 16 October 2020, was as follows:

I have been incorporated into this email due to my position as Acting Operational Nurse Manager on the date of this incident.

As the Acting Operational Nurse Manager for inpatient mental health services a call from Patrick was also put through to myself.

Call received from Patrick regarding a patient that he had picked up earlier that day from Wyong mental health unit. During the conversation Pat was heard to be very angry, difficult to understand at times due to speaking so fast and loud also was very difficult to interpret. It took 5 - 10 minutes to ascertain the reason for the call. Patrick spent most of our 20 minute conversation repeating that the nursing staff don't know what they are fucking doing. Patrick also stated that the patient was worse in mental state when he picked her up then [sic] when she was admitted to mental health services complaining that the service had not helped the patient in any way. When able to redirect Patrick to his problem he mentioned that a discharge summary had not been given to him when he picked up the patient, he went on to shout at me and stated that he knew someone who was a nurse who he had relayed the situation too [sic] and they told him he should have been given a discharge summary on discharge staff have no idea what they are fucking doing again was repeated multiple times.

When told that I will follow-up to ensure the discharge summary - with medication information was received by his service Patrick then started shouting the bloody fax machine doesn't work, nothing works around here, I then asked for a phone number which was supplied then Patrick swiftly stated well it's past 3pm I don't care I am going home and hung up.

Please don't hesitate to contact if you needed in further."

[21] Ms Midson gave evidence that on the basis of her contemporaneous note she thought her conversation started with Mr Longobardi at 3:10pm, but she accepted that the conversation could have ended at that time.

[22] I have no hesitation in finding that it was Mr Longobardi to whom Ms Midson spoke by telephone at about 3pm on 9 October 2020. Mr Longobardi accepts that he spoke to Ms Midson, but denies he was aggressive, verbally abusive or swore at her.

[23] There is no dispute that Ms Midson spoke to Mr Longobardi about the discharge summary which he believed should have been provided to him at the time he picked up the customer from the Mental Health Unit. There is a dispute about whether the discharge summary should have been provided to Mr Longobardi when he collected the customer. I do not need to resolve that dispute. It is apparently the subject of proceedings before a different tribunal. Even if a mistake was made in not providing the discharge summary to Mr Longobardi at the time he collected the customer from the Central Coast Local Health District, that did not give Mr Longobardi the right or justification to speak inappropriately to employees of the Central Coast Local Health District.

[24] I find that Ms Midson was a reliable and credible witness. Her oral evidence was broadly consistent with her contemporaneous note of her conversation with Mr Longobardi on 9 October 2020. She had a good recollection of the significant aspects of her conversation with Mr Longobardi on 9 October 2020. Ms Midson did not speculate in her oral evidence and came across as an impartial witness to a discrete conversation. She answered all the questions put to her in a direct and responsive manner.

[25] Mr Longobardi questioned Ms Midson about why she used the different expressions "Patrick" and "Pat" in her email account of their conversation. Mr Longobardi raised this issue in circumstances where he made it plain throughout the determinative conference that he may be referred to as Mr Longobardi or Pat, but not Patrick. Ms Midson explained that she was told by a staff member that there was a "Patrick" on the phone who wanted to speak to her, but she could not recall how Mr Longobardi referred to himself during the call. It is most likely that if Mr Longobardi referred to himself in his conversation with Ms Midson on 9 October 2020, he did so as "Pat". That is the most likely explanation for Ms Midson's use of the different expressions "Patrick" and "Pat" in her email account of their conversation. The use of those different expressions does not cause me to doubt the accuracy or veracity of Ms Midson's contemporaneous record of the conversation.

[26] Mr Potts was working in the same property as Mr Longobardi on the afternoon of 9 October 2020. Mr Potts signed a short statement on 7 November 2020 in relation to his recollection of events on the afternoon of 9 October 2020.[19] Mr Potts also signed a witness statement in connection with these proceedings on 19 January 2021.[20] The witness statement is in the following terms:

"1. I have been employed as a Support Worker with New Horizons since 14th September 2015.

2. On 9 October 2020 when customer, (JEB) was discharged from Wyong Mental Health Ward, Wyong Hospital, Patrick Longobardi, Support Worker at the Walker Street property went to the hospital to pick JEB up and bring her back to the property.

3. On returning to the property, Patrick was frustrated as he was told at the hospital that everything had been put in customers bag but found that the hospital discharge summary was not included.

4. When Patrick became aware of this, he made phone calls to the hospital demanding the Discharge Summary be sent to the property.

5. I was not present for the whole conversation as I was attending customers at the time in another section of the house and going in and out of the office when Patrick was on the phone.

6. When I did go into the office I observed Patrick's behaviour as elevated in his voice was raised when on the phone. However, I did not hear Patrick swear when I was in the room but unsure if he swore when I was out of the room.

7. Patrick was aggressive in the way he spoke, he was angry to the point where both phone calls were ceased by the recipients. Patrick's behaviour elevated more and I asked him to calm down and said, "I would have hung up on you also if you spoke to me that way".

8. He then rang the hospital back to speak to the Manager. Again, I was in and out of the office and did not hear the whole conversation."

[27] In his oral evidence, Mr Potts said that he did not actually say to Mr Longobardi that "I would have hung up on you also if you spoke to me that way". Instead, Mr Potts explained in his oral evidence that if he had been working at the hospital and Mr Longobardi had spoken to him in that way he probably would have hung up on Mr Longobardi.

[28] Mr Potts also gave oral evidence that Mr Longobardi was frustrated and used a raised voice when he spoke with staff from the Central Coast Local Health District on the afternoon of 9 October 2020. Mr Potts said it was not a calm professional conversation. Mr Potts did not retract his evidence that Mr Longobardi was aggressive in the way he spoke during the phone calls.

[29] Mr Potts explained that he was in and out of the office during Mr Longobardi's calls with employees from the Central Coast Local Health District. He did not hear Mr Longobardi swear. It is possible that Mr Longobardi may have sworn while Mr Potts was out of the room, but Mr Potts gave evidence that he thinks he would have heard Mr Longobardi swear if he had done so. Mr Potts gave evidence that he was about 10m to 15m away from Mr Longobardi when he was out of the room in which Mr Longobardi was speaking to employees of the Central Coast Local Health District.

[30] I find that Mr Potts was a reliable and credible witness. Although he accepts that part of paragraph 7 of his witness statement was not accurate, he gave persuasive evidence as to what he meant by that part of his statement. Mr Potts willingly accepted that Mr Longobardi was a good worker. There is no evidence to suggest that Mr Potts had a grudge against Mr Longobardi or any other reason to give dishonest or unreliable evidence.

[31] Ms Rao gave evidence that she commenced work at the Walker Street property at about 2:55pm on 9 October 2020, even though did she did not sign on until 3:04pm. Her recollection is that Mr Longobardi was not on the phone when she arrived at work. Ms Rao gave evidence, which I accept, that Mr Longobardi did not swear and was not aggressive when she saw him on the afternoon of 9 October 2020. That evidence is of limited weight because the evidence does not support a finding that Ms Rao was present when Mr Longobardi spoke to Ms Midson on the afternoon of 9 October 2020.

[32] I prefer Ms Midson's account of her conversation with Mr Longobardi on the afternoon of 9 October 2020 over Mr Longobardi's denial that he spoke aggressively and swore during the conversation, for the following reasons. First, Ms Midson's contemporaneous email to herself supports her evidence in her witness statement and her oral evidence as to the conversation. Secondly, Mr Potts's evidence that Mr Longobardi was aggressive, frustrated and spoke loudly during his conversations with staff from the Central Coast Local Health District supports Ms Midson's account of the conversation. Although I accept as truthful Mr Potts's evidence that he did not hear Mr Longobardi swear during his conversations with staff from the Central Coast Local Health District on the afternoon of 9 October 2020 and he thinks he would have heard Mr Longobardi if he did so swear, Mr Potts was in and out of the office during the conversations and it is quite possible that Mr Potts was otherwise occupied, out of the office, when swearing took place during the 20 minute conversation between Mr Longobardi and Ms Midson. Thirdly, Ms Midson had no motive to lie, which supports her credibility as a witness in these proceedings.[21] Fourthly, on a number of occasions when Mr Longobardi became frustrated during the determinative conference he spoke loudly, aggressively, quickly, and was difficult to understand and interrupt. This is consistent with Ms Midson's observations in her contemporaneous note.[22]

[33] For the reasons given, I find on the balance of probabilities and having regard to the Briginshaw standard that during his conversation with Ms Midson on 9 October 2020 Mr Longobardi was angry, aggressive, spoke loudly, was difficult to understand at times and difficult to interrupt, repeatedly stated that the nursing staff don't know what they are fucking doing, and hung up on Ms Midson.

[34] As to the second part, New Horizons did not call as witnesses any of the unnamed employees of the Central Coal Local Health District to whom Mr Longobardi allegedly spoke in an abusive and aggressive manner. Those allegations are serious. They are denied by Mr Longobardi.

[35] The evidence given by Mr Potts, as set out above, that Mr Longobardi was aggressive and used a raised voice when he spoke with staff from the Central Coast Local Health District on the afternoon of 9 October 2020 supports the contention advanced by New Horizons in this part of allegation 1.1. So too does Mr Potts's evidence to the effect that if he had been working at the hospital and Mr Longobardi had spoken to him in that way he probably would have hung up on Mr Longobardi.

[36] Mr Burnett gave evidence about information he received from employees of the Central Coast Local Health District concerning their discussions with Mr Longobardi by telephone on 9 October 2020. In particular, Mr Burnett explained that a number of staff of the Central Coast Local Health District had approached him and informed him that Mr Longobardi had been raising his voice and acting in an aggressive and hostile manner during telephone conversations with them. The names of those employees were not provided. They were not called to give evidence. I accept that Mr Burnett gave truthful evidence about what he was told by employees who reported to him. I am prepared to give Mr Burnett's evidence some weight because it is consistent with the evidence of a direct witness, Mr Potts. But the weight I attribute to Mr Burnett's evidence is very limited having regard to the fact that (a) although Mr Longobardi was able to cross examine Mr Burnett, he was not present during any of the alleged conversations, (b) the employees who participated in the alleged conversations were not called to give evidence, with the result that Mr Longobardi has not been given an opportunity to test the evidence of the employees who were allegedly parties to the discussions.

[37] New Horizons also relied on a range of business records to support its case that Mr Longobardi spoke to the employees of the Central Coast Local Health District in an abusive and aggressive manner. Those business records include emails between various New Horizons managers and Mr Burnett and a record of conversation prepared by Ms Shannon Street, a former employee of New Horizons who was not called to give evidence.[23] There are, however, serious inconsistencies between those business records. For example:

(a) an email from Mr Burnett to Ms Street sent at 3:49pm on 9 October 2020 refers to a "number of inappropriate phone calls to various staff members at the Wyong Mental Health Unit yesterday evening and throughout the day to day", but in neither Ms Street's record of conversation nor in any other document is there any suggestion that Mr Longobardi made telephone calls to employees of the Central Coast Local Health District on the evening of 8 October 2020, at which time Mr Longobardi was not at work and he knew nothing about any requirement to collect the customer from the Mental Health Unit on the following day; and

(b) the email from Mr Burnett to Ms Street sent at 3:49pm on 9 October 2020 does not make any mention of Mr Longobardi swearing at staff in the Mental Health Unit when he collected the customer on 9 October 2020, yet Ms Street's record of conversation refers to Mr Longobardi swearing at staff "before leaving". Further, I accept Mr Longobardi's unchallenged evidence that he was not even aware that he did not have the discharge summary for the customer until he returned to the Walker Street property. It follows that there was no reason for Mr Longobardi to swear at staff before he left the Wyong Hospital.

[38] Having regard to those inconsistencies and the fact that Mr Longobardi has not been given any real opportunity to test the evidence in the business records by questioning relevant witnesses who participated in the conversations, I am satisfied that judicial fairness requires that I not give any weight to those business records.

[39] I find on the balance of probabilities and having regard to the Briginshaw standard that Mr Longobardi spoke to employees of the Central Coast Local Health District (in addition to Ms Midson) in an aggressive and raised voice on 9 October 2020. The most telling evidence in relation to this part of the allegation is that given by Mr Potts, as set out above. The evidence does not permit a finding to be made as to exactly the number of conversations that fit this category, nor as to precisely what was said. Even accepting Mr Longobardi's evidence that he only made three telephone calls to employees of the employees of the Central Coast Local Health District on 9 October 2020 and one of those calls was when he spoke to Ms Midson, that still leaves two other calls where Mr Longobardi accepts that he spoke to employees of the Central Coast Local Health District on 9 October 2020. I am not satisfied on the evidence that Mr Longobardi swore during any of these telephone conversations, other than during his discussion with Ms Midson.

[40] This is a serious allegation. It involves alleged verbal abuse of a vulnerable person who had just been discharged from the Mental Health Unit of Wyong Hospital. Mr Longobardi denies the allegation. Mr Longobardi's denial is supported by the evidence given by Ms Adam, Ms Rao and Mr Potts concerning Mr Longobardi's very good relationship with customers of New Horizons and his willingness to go over and above to advocate and care for the customers in his care.

[41] New Horizons did not call any witness to this alleged conduct. It relied on Mr Burnett's hearsay account of what happened. I give that evidence limited weight because the employee of the Central Coast Local Health District who was present when the alleged conduct occurred was not called to give evidence, with the result that Mr Longobardi has not been given an opportunity to test their evidence.

[42] I find on the balance of probabilities and having regard to the Briginshaw standard that Mr Longobardi did not tell the customer in question to 'shut up' on 9 October 2020, nor did Mr Longobardi display unreasonable behaviour towards the customer or act in a rude or angry manner towards the customer. Although Mr Longobardi has acted inappropriately in his dealings with employees of the Central Coast Local Health District and New Horizons, the evidence demonstrates that Mr Longobardi performed very well in his role caring for, supporting, and advocating for customers. It is plain that Mr Longobardi cared deeply for the vulnerable people for whom he was responsible in his role as a support worker for New Horizons. Having regard to that evidence and the absence of any evidence from a witness to the alleged conduct, I do not feel an actual persuasion of the occurrence or existence of the alleged conduct in telling the customer to 'shut up' or otherwise acting inappropriately towards the customer.

Allegation 1.3 - failure to keep information confidential

[43] Clause 22 of Mr Longobardi's contract of employment with New Horizons provides:

(a) The Company may suspend you from your employment duties with pay for the purposes of conducting an investigation into any matter arising from your performance or conduct.

(b) If you have given or been given notice of termination of your employment or if you have been suspended under subclause (a) above, the Company may require you, during part or all of the period of notice of termination or suspension:

i. to attend interviews or provide information as requested by the Company or its representative;

iii. not to attend for work or the Company's premises;

v. to perform duties which are different from those which you had been required to perform, provided only that you have the necessary skills and competence to perform the duties;

vi. not to have any contact with any clients, customers, suppliers or employees of the Company or any of its related entities;

[44] By letter dated 14 October 2020, Mr Longobardi was stood down while New Horizons investigated allegations against him. Although New Horizons had the right under clause 22 of Mr Longobardi's contract of employment to give him directions to do, or not to do, a whole range of things during the period of his suspension, the letter of 14 October 2020 only gave the following relevant directions to Mr Longobardi:

"... You will not be required to come to the workplace during this [stand down] time and are requested to return New Horizons' property to your direct Manager.

You will continue to be paid during this period and are required to be contactable and attend the workplace when requested to respond to the issues raised.

You will be required to make yourself available to participate in a meeting for this purpose, and the details of this meeting will be confirmed shortly.

I remind you that you are required to keep confidential any matter discussed during this process. Accordingly, please do not discuss this matter with any employee, customer or supplier of New Horizons, other than your support person. If we become aware that you have discussed this matter, you may be subject to disciplinary action up to and including termination of your employment..."

[45] By letter dated 9 November 2020, New Horizons notified Mr Longobardi of the allegations made against him, including allegation 1.3 in the following terms:

"1.3 It is alleged that on 19 October 2020 you displayed unreasonable behaviour during your standdown period and failed to follow a directive to keep confidential any matter discussed during the investigation process as outlined in your letter dated 14/10/20 as follows:

"I remind you that you are required to keep confidential any matter discussed during this process. Accordingly, please do not discuss this matter with any employee, customer or supplier of new Horizons, other than your support person. If we become aware that you have discussed this matter, you may be subject to disciplinary action up to and including termination of your employment".

You made multiple phone calls to the Wyong Mental Health Unit and when put through to the Nurse Unit Manager advised of your annoyance that you had been reported by them and subsequently stood down.

Following this, you lodged a complaint to Wyong Mental Health Unit complaints department, about the service provided to New Horizons customer ... associating New Horizons with the complaint, without Management approval."

[46] Mr Longobardi met with Mr Buckley and Ms Settle on 12 November 2020 and responded to the allegations set out in the letter of 9 November 2020. Mr Longobardi denied allegation 1.3. Mr Longobardi said that he did not lodge a complaint on New Horizons' behalf, did not make multiple calls to the Wyong Mental Health Unit on 19 October 2020, and did not advise the Nursing Unit Manager that he was stood down.

[47] New Horizons did not adduce any evidence from any employee of the Central Coast Local Health District to support allegation 1.3. It relied on a range of business records, including:

(a) An email from Ms Street to Mr Ansell dated 19 October 2020 in the following terms:

I just received a call from a Registered Nurse at the Wyong Mental Health Ward who wanted to speak to me regarding a Patrick from our organisation.

She informed me that he is continuously calling there today demanding to speak to someone and leaving messages on their phones, including his number and to call him back.

Brendan (Mental Health NUM & author of complaint) is not there today, however she said she will be letting him know tomorrow when he returns that this 'Pat guy' is calling them non - stop."

(b) An email from Mr Ansell to Mr Burnett dated 20 October 2020 in the following terms:

I was advised by Shannon Street (Team Leader, Walker st) of a conversation between herself and one of your nursing staff yesterday (Monday 19.10.20)

The concerns discussed were in regard to additional phone correspondence from NHE staff (Pat), whereby it is stated Pat contacted the team several times yesterday.

I would like to advise you that NHE responded to your complaint by standing Pat down, pending further investigation.

I would like to confirm; Pat does not represent NHE at this time in any capacity.

I will let you advise your staff of Pat's current position and I will update you directly if this changes.

I would be more than appreciative if your staff could elaborate on the amount of calls and nature of the phone contact yesterday.

Please do not hesitate to contact me regarding anything further."

(c) An email from Mr Burnett to Mr Ansell dated 3 November 2020 in the following terms:

After speaking with Ward nurses my understanding was that Pat had made multiple calls to the switchboard asking to be put through to the female Nurse Unit Manager. Switchboard finally relented due to the persistence of Pat, and put a call through to the ward. Pat was not reported to be verbally abusive however was annoyed that he had been reported and subsequently stood down.

Pat has also lodged a formal complaint regarding The Wyong Mental Health Inpatient Unit to our complaints department. I have responded to this complaint."

(d) An email from Mr Burnett to Mr Ansell dated 6 November 2020 in the following terms:

The complaint did not come directly to me but our complaints department:

Carer from group home complaining that when he went to pick up patient who was being discharged from MHIU on 9/10/2020, they did not receive a D/C summary detailing ongoing plan and medications required.

He had asked for discharge paperwork whilst at the unit and was told it was in the bag with medications.

When he got back to the group home, he realised there was no paperwork and only the patient's webster pack with list of medications required. He called the MHIU and spoke to incharge stating he needed the D/C paperwork so that he could arrange an updated webster pack for the patient and was told he didn't need it for that.

Carer went to the pharmacy and could not obtain new webster pack without appropriate paperwork. Additionally, carer states he spoke to the incharge or NUM on a few occasions about this but kept getting hung up on.

He states that someone has filed a complaint about him to the group home which has caused his employer to stand him down from his job and if [sic] very frustrated by this.

Carer does not want any personal information regarding patient and therefore will not be obtaining consent."

[48] New Horizons' finding in relation to allegation 1.3, as stated in its letter of 3 December 2020 to Mr Longobardi, was as follows:

"Substantiated: there is enough evidence to find the conduct occurred on the balance of probabilities.

You admitted during the interview that you contacted Central Coast Area Health regarding the hospital's actions, and this was done through the complaints department. Your complaint referred to the service provided during the discharge of one of New Horizons customers and yourself as the carer. Therefore, whether directly or indirectly you are associating New Horizons to the complaint.

Note: The date for 1.3 was noted as the 19/10/20. However, we have since found the complaint was made by phone on the 29/10/20 still during the standdown period. Part of the complaint was worded as follows: 'He states someone has filed a complaint about him to the group home which is caused his employer to stand him down from his job'."

[49] I reject allegation 1.3 for the following reasons. First, Mr Longobardi was directed by the stand down letter of 14 October 2020 "to keep confidential any matter discussed during this process" and "not discuss this matter with any employee, customer or supplier of New Horizons, other than your support person". The allegation is that on 19 and/or 29 October 2020 Mr Longobardi failed "to keep confidential any matter discussed during this process" by making a complaint to the Central Coast Local Health District. However, the first discussion Mr Longobardi had during the investigation process was on 12 November 2020 when he met with Mr Buckley and Ms Settle to respond to the allegations put against him. Because this discussion took place on 12 November 2020, it is not possible that Mr Longobardi failed at an earlier time (19 and/or 29 October 2020) "to keep confidential any matter discussed during this process".

[50] Secondly, the expression "any matter discussed during this process" in the 14 October 2020 does not, on its proper construction, include the fact that Mr Longobardi had been stood down by the letter of 14 October 2020. Even if that were the case, I accept Mr Longobardi's evidence that on neither 19 nor 29 October 2020 did he inform anyone from the Central Coast Local Health District that he had been stood down. I prefer Mr Longobardi's direct evidence denying this allegation over the hearsay account given in the business records of New Horizons. In the alternative, even if Mr Longobardi disclosed to the Central Coast Local Health District that he had been stood down, that was not confidential information. So much is clear from the email from Mr Ansell to Mr Burnett dated 20 October 2020 in which Mr Ansell stated that New Horizons had responded to Mr Burnett's "complaint by standing Pat down, pending further investigation... I will let you advise your staff of Pat's current position and I will update you directly if this changes."

[51] Thirdly, it is not established on the evidence that the Central Coast Local Health District, or any part of it, is an "employee, customer or supplier of New Horizons". Accordingly, Mr Longobardi did not contravene the direction "not [to] discuss this matter with any employee, customer or supplier of New Horizons, other than your support person" by making a complaint about the failure to provide him with a discharge summary on 9 October 2020.

[52] Fourthly, I accept Mr Longobardi's evidence that he did not refer to New Horizons or the name of its customer when he made his complaint to the complaints department of the Wyong Hospital. Mr Longobardi's complaint was directed to the fact that he did not receive a discharge summary on 9 October 2020 when he believes he should have. The making of such a personal complaint about an alleged procedural failure by the Mental Health Unit at the Wyong Hospital did not disclose any of New Horizon's confidential information or any aspect of the allegations being pursued by New Horizons against Mr Longobardi in connection with his conduct towards staff of the Central Coast Local Health District or the customer he collected on 9 October 2020.

Allegation 2 - verbally harassed and abused Inclusion Team members

[53] The finding made by New Horizons in its letter to Mr Longobardi dated 3 December 2020 in relation to allegation 2 was as follows:

From July to October 2020 it is alleged in you harassed and verbally abused staff from the Inclusion Team of New Horizons, Central Coast.

You continually tell staff they are stealing from customer ... And take advantage of him despite an independent audit conducted that cleared the Inclusion team of overcharging customer. When staff arrive at the property to pick [customer] up for service or, if they ring the house to see if [customer] wants service, you either accused staff of "ripping" [customer] off, or you just hang up on them.

Substantiated: There is enough evidence to find the conduct occurred on the balance of probabilities.

You stated during the interview that you questioned phone calls when the inclusion team ring the house, as they are meant to be at the property. The Inclusion team have tried to inform you of reasons why they are ringing, but you refuse to listen.

In October, you verbally abused a new worker, witnessed by other Inclusion staff and after an audit had been conducted into the service provided by the Inclusion team.

The Regional Leaders spoken to you about your behaviour towards the inclusion staff. However, you continue to verbally abuse the Inclusion team members and demeaner [sic] the service they are providing to [customer] saying they (inclusion team) are "ripping" [customer] off."

[54] Ms Scullion gave evidence that she had an unpleasant encounter with Mr Longobardi on 30 September 2020 which upset her. On 12 October 2020 Ms Scullion sent an email in the following terms to her manager, Ms Cobner, in relation to the incident on 30 September 2020:

"CSW Ed had phoned in sick. Ed would usually see [customer] at 7:30 but I started at this time. I phoned the Walker house at 7:35 to let them know that Ed would not be there but that I could be there soon.

SW Leesa answered the phone initially and then passed the phone over to SW Pat with no explanation. I thought I was speaking to [customer] at first, as Pat did not introduce himself on the phone. Pat spoke to me in a harsh and angry tone, telling me that I was late and I was not to call the house. I explained to Pat that CSW Ed was away and that I would be coming out instead if that was still okay.

On arrival Pat came out of the house to complete COVID forms. I introduced myself as I had never met Pat before. Pat said sorry to me. I expressed that I was taken back by the way that he spoke to me on the phone and that I believed giving a phone call was just common courtesy. Pat explained that he wasn't upset with me but my boss and the NDIS. Pat also brought up that there was an ongoing investigation in regard to [customer], insisting we were stealing money from him and that when we ring in the morning we want him to cancel, I reiterated that I believed this was just courtesy and then left with [customer]."

[55] Ms Scullion gave oral evidence that Mr Longobardi spoke in a loud and aggressive tone during their telephone conversation of the morning of 30 September 2020. It was apparent from Ms Scullion's oral evidence that she was upset and shaken up by her interaction on the telephone with Mr Longobardi on 30 September 2020.

[56] Ms Cobner sent emails to the human resources team at New Horizons on 3 August 2020 and 6 October 2020 in relation to interactions between employees in her Inclusion team and Mr Longobardi. Those emails were in the following terms:

As discussed there have been a number of times that staff have complained to me when they speak with Staff Patrick from Walker. On a few occasions I have spoken with Patrick, on one occasion sorry cannot remember the date, I spoke with him about this, as [sic] when I answered the office phone he said "Daniel Ansell phone number" I said how about please. I then went on to say that I have heard from staff here that he has been very grumpy and not speaking to them very nice, I said to him that we have a good team here at Wyong and that they should be treated a bit better and speak nice to them. Patrick started talking about why staff call [customer] in the morning. I said this is what the community team is use to, our customers like a call so they know we're coming, also reminder for them to get ready. I said I understand that [customer] is in supported accommodation but this is just what the team is used to doing.

Unfortunately on that same day, staff had a miscommunication and [customer] missed getting support, I spoke with Pat again and he said that this just proves it's done at your convenience, I said to him I would find out what happened. TL Shannon spoke to by TL Mel about the miscommunication and apologised for the error. [Customer] was not charged for this from NDIS plan.

I have attached a couple of emails from staff feedback, if I receive any more I will send through.

I just wanted to give you some feedback on 1 of the staff members at Walker St group home Pat. I have found him quite rude over the phone when I have called him on numerous occasions to enquire about certain customers.

Pat has hung up on me and also spoken quite aggressively towards me.

I myself have only ever spoken to Pat in a happy professional manner. There has only been 1 occasion that I can remember where Pat has spoken to me nicely.

I really don't look forward to calling Walker Street to arrange pick ups for our customers residing at Walker St, as I don't want to speak with Pat. Being spoken to that way he talks to me I feel belittled.

I have also heard him speak with other staff this way and also hanging up on others.

On a few occasions I have been the recipient of an abrupt and abrasive manner from Patrick at the Walker residence when phoning to enquire about a customer, this usually results in being hung up on."

I would like to bring to your attention the way in which Patrick Longobardi has been treating staff at Inclusion and the way that he is degrading New Horizons services.

Patrick tells all staff and anyone that listens, that Inclusion are stealing from [customer] and taking advantage of him, this sort of degrading comments about a department in the same company in which Patrick works for is unprofessional, and untrue and I would like it addressed. He is rude to Inclusion staff stating the above to them also. The staff have become anxious when phoning the house or going there to pick up [customer], this is causing undue stress amongst the whole Wyong team I advised the team they can ask for the other staff on duty if they are not comfortable in talking to Patrick or to ask to speak with [customer].

In particular the way in which Patrick spoke to SW Jade Scullion is inexcusable last week, Jade will be sending me her record of conversation. Patrick did apologise when she got to the house but then started again about how we are "ripping" [customer] off. Apparently, other staff report Jade was on the verge of tears after her conversation with him.

Let me know if I can send through any more information, Inclusion staff are more than willing to document their conversations, some I have already forwarded on previously. This behaviour is very concerning, Inclusion staff are worried that if they are treated in this way how is other staff and customers of the house being treated."

[57] Ms Cobner gave oral evidence that she spoke to Mr Longobardi after his interaction with Ms Scullion and told him he needed to speak politely to staff. Mr Longobardi responded by saying, "ooh the big boss is calling. I'd better pull my head in." Ms Cobner also gave oral evidence that about 90% of the Inclusion team do not like dealing with Mr Longobardi.

[58] Ms Cobner explained why her Inclusion team staff call the Walker Street property in the morning before they attend the property to collect a customer for an outing. The purpose of the call is to remind the customer of the outing and see if the customer wants to cancel the outing. If the customer wants to cancel the outing because they are sick or for some other reason, the Inclusion team at New Horizons tries to reassign the staff member who was allocated to take the customer on the outing to another outing with a different customer. In the event that the Inclusion team member can be reassigned in this way, New Horizons does not charge the customer for the cancellation. Alternatively, if the Inclusion team member simply attended the property without calling first and the customer cancelled the outing then it would not usually be possible to reassign the team member to a different task, with the result that the customer would be charged for the cancellation because less than 48 hours' notice had been given. Ms Cobner maintained her evidence that making the telephone call before attending the property was for the benefit of the customer.

[59] After Mr Longobardi raise concerns about the potential for a customer to be "ripped off" by this practice, an audit was conducted by a separate department within the New Horizons business. The result of the audit was that there were a couple of errors and New Horizons rectified those errors by crediting the customer, and there were about 16 occasions when New Horizons could have charged a client for the service but did not do so.

[60] Mr Longobardi denies allegation 2 and says that he raised the issue about the customer being called before attending the property because he was concerned that the customer was being charged fees inappropriately. Mr Longobardi does not agree with the practice of the Inclusion team calling the property before attending to collect the customer because he believes that the call may upset the customer or make it more likely that the customer will cancel the outing and be charged a cancellation fee.

[61] In my view, this is an example of Mr Longobardi being eager to act in the best interests of the customers for whom he provided care and support. It was entirely appropriate for Mr Longobardi to raise his concern about the Inclusion team's practice of calling the property in the morning prior to attending to collect a customer for an outing. Mr Longobardi advocated passionately on behalf of the customers he cared a great deal about. However, the decision as to whether the Inclusion team continued with this practice was not Mr Longobardi's to make. That was Ms Cobner's call. Her decision was to continue the practice. She had rational and sensible reasons for doing so, even though Mr Longobardi did not agree with them. Mr Longobardi should have accepted the decision to continue the practice. More importantly, the fact that Mr Longobardi was acting in what he perceived to be the best interests of customers did not give him the right or justification to act in an aggressive manner towards other New Horizons staff. I am satisfied on the evidence given by Ms Scullion and Ms Cobner, which I accept, that, assessed objectively, Mr Longobardi did speak in an aggressive manner to Inclusion team staff members. I do not believe that Mr Longobardi intended to act aggressively, but he did and that upset staff such as Ms Scullion. Mr Longobardi was warned about his conduct in this regard in his discussions with Ms Cobner.

Allegation 3 - sent private and confidential information to a private email address

[62] There is no dispute that on 15 October 2020 Mr Longobardi sent emails from his work email address to his wife's personal email address. Mr Longobardi did so because he wanted to use these emails to support his allegation of bullying by Ms Street and other managers. The emails in question included communications between Mr Longobardi and Ms Street which Mr Longobardi contends prove that Ms Street communicated with him in an unreasonable manner.

[63] Mr Longobardi was suspended at the time he was preparing his bullying complaint (15 October 2020). Mr Longobardi had access to his work emails from home but could not print off his work emails from his own email account. Mr Longobardi's printer at his home is connected to his wife's email address, which she does not use. Mr Longobardi forwarded the emails in question to his wife's email address, printed them off at home and used them to support his bullying complaint. Before he could forward emails to wife's email address, Mr Longobardi had to delete sensitive information from the emails. He deleted sensitive information until such time as New Horizon's information technology system allowed him to forward on the emails to his wife's email address. However, some sensitive information remained in the forwarded emails, such as a medical diagnosis for a particular customer. Mr Longobardi gave evidence that his wife did not see or have access to the emails, and that the emails were not disclosed or provided to any third party; they were only used for the purpose of supporting his bullying complaint to New Horizons.

[64] I accept the truth and accuracy of the evidence given by Mr Longobardi in relation to this allegation, as summarised in the previous two paragraphs. There is no evidence to support a finding that Mr Longobardi has used the emails other than to support his bullying complaint. The steps Mr Longobardi says he took to print off the emails and use them to support his bullying complaint are logical and ring true, particularly for a person such as Mr Longobardi who is not an information technology specialist.

[65] Mr Longobardi's contract of employment contains the following provisions in relation to confidential information:

(a) You must keep secret during and after your employment all information you obtain about the business and affairs of the Company, Related Companies, clients or customers of the Company.

(b) Any document or written material provided by the Company for use in connection with the Company's business is the Company's property must not be removed, passed on, copied or disclosed to third parties except with the Company's authority.

iii. not at any time without the authority of the Company either directly or indirectly divulge to any person any information in connection with the Company or any of its businesses or customers which you may have acquired during or as incidental to your employment..."

[66] By engaging in the conduct summarised in paragraphs [62] and [63] above, I find that Mr Longobardi:

(a) did not breach clause 19(a) or 23(a) of his contract because he did not "divulge to any person" or fail to "keep secret" any information about New Horizons. He did not disclose the emails or their content to anyone, other than New Horizons for the purpose of supporting his bullying complaint; and

(b) did not breach clause 19(b) of his contract. By forwarding the emails to his wife's email address for the express and sole purpose of printing the emails for use to support his bullying claim, I do not consider that Mr Longobardi "removed, passed on, copied or disclosed to third parties" any document provided by New Horizons or used in connection with its business. Alternatively, if acting in this way constituted a breach of Mr Longobardi's obligation not to "copy" or "remove" relevant documents, it would be a minor technical breach which would not provide a sound, defensible or well-founded reason to terminate Mr Longobardi's employment.

[67] Mr Longobardi was also criticised during his cross examination for the steps he took to comply with an order for the production of documents made in 2021 during the course of these proceedings. In particular, Mr Longobardi used his father in-law's computer and email address to scan-in various documents that he was obliged to produce to the Commission in response to the order for production of documents. I accept Mr Longobardi's evidence as to the steps he took in that regard, the legitimate purpose for which he acted, and the fact that the documents were not disclosed to any third party. I am satisfied that Mr Longobardi did not breach any obligation of confidentiality owed by him in connection with the steps he took in 2021 to produce documents to the Commission.

[68] New Horizons contends that Mr Longobardi breached:

(a) its Positive and Productive Workplace Policy which required him to "behave in a responsible and professional manner and treat others in the workplace with courtesy and respect"; and

(b) its Code of Ethical Conduct which required him to "treat all people with respect and dignity ... undertake ... duties with care and diligence ... uphold and model the values of New Horizons" and "protect the reputation and assets of New Horizons and exercise judgement accordingly".

[69] By reason of Mr Longobardi's conduct (as found above) in relation to allegations 1.1 and 2, I am satisfied that he failed to comply with his obligations under relevant policies and procedures to:

• behave in a responsible and professional manner and treat others in the workplace with courtesy and respect;

• treat all people with respect and dignity and uphold and model the values of New Horizons; and

• protect the reputation of New Horizons and exercise judgement accordingly.

[70] I am satisfied on the evidence that allegations 1.1, 2 and 4 are substantiated. Allegations 1.2, 1.3 and 3 are rejected.

[71] By reason of Mr Longobardi's conduct (as found above) in relation to allegations 1.1, 2 and 4, I am satisfied that New Horizons had a sound, defensible and well-founded reason to dismiss Mr Longobardi on 10 December 2020. I am therefore satisfied that New Horizons had a valid reason to dismiss Mr Longobardi related to his conduct.

Notification of the reason for dismissal and given an opportunity to respond (s 387(b)&(c))

[72] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made[24], and in explicit[25] and plain and clear terms.[26] In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):

"As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted."

[73] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[27]

[74] Mr Longobardi was notified of the reasons for the termination of his employment in the termination letter dated 10 December 2020. He was also aware of those reasons from his receipt of the letter of allegations dated 9 November 2020 and the letter of findings dated 3 December 2020.

[75] Mr Longobardi was given an opportunity to respond to the reasons for his dismissal before any decision was made to terminate his employment. He responded in detail to the allegations made against him during a meeting on 12 November 2020. Mr Longobardi was also given an opportunity to respond to the letter of findings dated 3 December 2020 and show cause as to why his employment should not be terminated. That opportunity was afforded to Mr Longobardi prior to, and during, his meeting with Mr Buckley and Ms Settle on 10 December 2020.

Any unreasonable refusal to allow Mr Longobardi to have a support person present (s 387(d))

[76] 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.

[77] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

"This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them."[28]

[78] Mr Longobardi was given an opportunity to have a support person present with him during his meetings with New Horizons on 12 November 2020 and 10 December 2020. Mr Longobardi took up that opportunity by arranging for his representative from the Australian Services Union to attend, by telephone, the meetings on 12 November 2020 and 10 December 2020. It follows that there was no unreasonable refusal by New Horizons to allow Mr Longobardi to have a support person present to assist at any discussions relating to his dismissal.

Warnings about unsatisfactory performance (s 387(e))

[79] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal.

[80] In this case, the reasons for dismissal related to Mr Longobardi's conduct, rather than his performance, so this consideration is not relevant.

Impact of size of New Horizons on procedures followed in effecting the dismissal (s 387(f))

[81] New Horizons is a substantial enterprise. I do not consider that the size of New Horizons's enterprise would be likely to impact on the procedures followed in effecting Mr Longobardi's dismissal. This is a neutral consideration.

Absence of dedicated human resource management specialists or expertise (s 387(g))

[82] New Horizons employed a number of human resource employees at the time of Mr Longobardi' dismissal, so this consideration is not relevant.

Other relevant matters (s 387(h))

[83] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[84] Mr Longobardi contends that the investigation undertaken by New Horizons was not fair or impartial. He complains that Mr Ansell and others, against whom he had made previous bullying complaints, had a conflict of interest and should not have been involved in the investigation. I consider that New Horizons addressed this issue appropriately by arranging for Mr Buckley, a senior manager, to take over the investigation from Mr Ansell at a relatively early stage of the investigation. Mr Longobardi did not have any prior relevant dealings with Mr Buckley. Ms Settle supported Mr Buckley, from a human resources perspective, during the investigation.

[85] New Horizons gathered relevant information so it could provide clear details and particulars of the allegations to Mr Longobardi, in writing, for his response. There was a gap between when Mr Longobardi was stood down on 14 October 2020 and his interview on 12 November 2020 because Mr Longobardi lodged a workers' compensation claim and was unfit for all duties until 30 October 2020 and then fit for suitable duties up to 12 November 2020. Mr Longobardi was given a fair opportunity to respond to the allegations, and he did so in detail on 12 November 2020. Although some of my findings do not align with the findings made by New Horizons during its investigation, I am satisfied that it conducted a fair and impartial investigation.

[86] Mr Longobardi also complains that the employees who had concerns about his aggressive behaviour should have approached him directly to sort the issue out, rather than make complaints and move straight to a formal investigation. The short answer to this point is that employees who are subjected to such aggressive behaviour often do not feel comfortable in making a direct approach to the person involved. I consider that the process followed in this case of obtaining information to ensure clear allegations could be put to Mr Longobardi for his response was appropriate in all the circumstances.

[87] I do not accept Mr Longobardi's contentions that he was dismissed because he made complaints about various supervisors and managers in New Horizons' business, or that the complaints from the Central Coast Local Health District were orchestrated by New Horizons or Ms Settle. The evidence does not support such a finding. I accept the evidence adduced by New Horizons to the effect that its reasons for dismissal were those set out in the letter of termination and the decision to terminate Mr Longobardi's employment was not made until 10 December 2020. I also accept the evidence of Mr Burnett and Ms Midson that they raised issues about Mr Longobardi's conduct towards staff of the Central Coast Local Health District because they were genuinely concerned about those matters.

[88] The fact that Mr Longobardi was summarily dismissed is a relevant matter to be considered under s 387(h) of the Act. The proportionality of the summary nature of Mr Longobardi's dismissal must be weighed against the gravity of his conduct in respect of which New Horizons acted in deciding to dismiss him.[29]

[89] In Sharp v BCS Infrastructure Support Pty Ltd,[30] a Full Bench of the Commission discussed the question of whether particular conduct by an employee warranted their summary dismissal as an "other relevant matter" within the meaning of s 387(h) of the Act (references omitted):

[33] The relevance of the definition of "serious misconduct" in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of "serious misconduct" for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression "serious misconduct" is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression "serious misconduct" is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is "satisfied that the misconduct of a person contributed to the employer's decision to dismiss the person". However, it is clear that conduct may constitute "misconduct" for the purpose of s.392(3) without necessarily being "serious misconduct". The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.

[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee's conduct met a postulated standard of "serious misconduct". In Rankin v Marine Power International Pty Ltd Gillard J stated that "There is no rule of law that defines the degree of misconduct which would justify dismissal without notice" and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. "Serious misconduct" is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd Buchanan J said:

"[48] The terms 'misconduct', 'serious misconduct' and 'serious and wilful misconduct' are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term 'serious misconduct' is under consideration an evaluation of what conduct represents 'serious' misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2)."

[35] In the Decision, the Vice President, correctly, did not attempt to address the parties' submission concerning "serious misconduct" in the context of his consideration of whether there was a valid reason for the dismissal, but only as a relevant matter under s.387(h). His findings at paragraph [55] and [56] that Mr Sharp's conduct was "serious misconduct" was, we consider, responsive to the submission of BCS noted in the first sentence of paragraph [52] that "the Applicant's conduct constituted serious misconduct justifying immediate dismissal". That is, "serious misconduct" was used as a shorthand expression to described misconduct of a nature that justified summary dismissal. A finding of that nature was a matter which was open to be taken into account as relevant under s.387(h) because it involved an assessment of the seriousness of the conduct in question."

[90] In my view, Mr Longobardi's conduct was repugnant to his employment relationship with New Horizons. His conduct on 9 October 2020 was not an isolated incident. It is apparent from his interactions with the Inclusion team earlier in 2020 that Mr Longobardi has acted in an aggressive manner towards employees of New Horizons. He was spoken to by Ms Cobner about his conduct in that regard. Yet he repeated his conduct, on multiple occasions, during the course of a frustrating shift for him on 9 October 2020. Employees should not be subjected to aggressive conduct by employees within their organisation or from another organisation with whom they have dealings. It is not acceptable for an employee to repeatedly behave in such a manner, regardless of how strongly they feel about an underlying issue or whether they are correct in their belief that a particular policy or practice was not followed. In all the circumstances, I find that Mr Longobardi's conduct the subject of the valid reason for his dismissal was of such a nature as to have justified his summary dismissal.

[91] Mr Longobardi's dismissal has had a significant impact on him personally and economically. He has lost a job he loved. Although he has obtained other employment, it is not in the same industry as he worked in with New Horizons. These aspects of the harshness of Mr Longobardi's dismissal must be weighed against the seriousness of his conduct.

Conclusion as to whether the dismissal was unfair

[92] Having considered and taken into account each of the matters specified in section 387 of the Act, my evaluative judgment is that New Horizons' dismissal of Mr Longobardi on 10 December 2020 was not harsh, unjust or unreasonable. Mr Longobardi has many good attributes as a support worker, including the quality of his work for vulnerable people and the passion he has for supporting and helping such people. I am satisfied that Mr Longobardi does not intend to act aggressively or even believe he is doing so on most occasions, but assessed on an objective basis it is apparent that Mr Longobardi has acted in an aggressive manner when he has been frustrated because some step has been taken, or not taken, which he believes is not in the best interests of the customer for whom he is providing care and support. Mr Longobardi's conduct in that regard needs to change. It impacts in a negative and serious way on the persons who are subjected to it. New Horizons had a valid reason for Mr Longobardi's dismissal. It conducted a fair and impartial investigation and afforded procedural fairness to Mr Longobardi.

[93] Mr Longobardi's application for unfair dismissal is dismissed.

[1] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8

[2] Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at 373

[4] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681 at 685

[6] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]

[9] Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J

[10] [2019] FCA 451

[12] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 at [61]-[62]

[13] (1979) 36 CLR 482

[14] [2011] VSC 42

[15] (1995) 59 IR 430

[21] Corrective Services NSW and Fraser [2015] NSWIRComm 1 at [187]- [188]

[23] See, for example, Hearing Book at pages 84 to 86

[24] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

[25] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

[26] Previsic v Australian Quarantine Inspection Services Print Q3730

[27] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1 at 14-15

[28] Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542]

[29] Johnson v Northwest Supermarkets Pty Ltd [2017] FWCFB 4453 at [5]; Sharp v BCS Infrastructure Support Pty Ltd [2015] FWCFB 1033 at [34]

[30] [2015] FWCFB 1033

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