Fair Work Act 2009

s.394 - Unfair dismissal

[1] On 19 June 2017, Mr Peter Sheehan (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Federation Training (the Respondent).

[2] The application indicated that the date that the Applicant's dismissal took effect was 30 May 2017.

[3] On 27 June 2017, the Respondent filed a response to the unfair dismissal application.

[4] On 5 July 2017, the unfair dismissal application was listed for conciliation before a Fair Work Commission Conciliator, but remained unresolved at the end of the conciliation.

[5] Consequently the matter was listed for hearing.

[6] The Applicant filed written submissions and witness statements with the Fair Work Commission (the Commission) on 24 July 2017. The Respondent filed written submission and witness statements with the Commission on 14 August 2017.

[7] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396 of the Act, I find that the Applicant's application was lodged with the Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that the questions of the Small Business Fair Dismissal Code or genuine redundancy do not apply.

[8] At a Directions hearing conducted on 18 September 2017, the Commission granted permission under s.596 of the Act for the parties to be represented by lawyers or paid agents.

[9] At the Directions hearing, the Commission also sought submissions from the parties as to whether the Commission should conduct either a conference (s.398) or a hearing (s.399) in relation to the matter. Taking into account the number of witnesses and the parties wishes, it was decided that a hearing would be the most effective and efficient way to resolve the matter.

[10] The matter was set down for a two day hearing before the Commission in Morwell on 27 and 28 September 2017.

[11] At the hearing the Applicant was represented by Ms F Knowles of Counsel. Ms Knowles called two witnesses:

Industrial Officer of Australian Education Union (AEU)

[12] At the hearing the Respondent was represented by Mr B Powels, Solicitor of PCC Employment Lawyers. Mr Powels called four witnesses:

Independent Human Resources Consultant/Investigator

Trade apprentice student enrolled with the Respondent

[13] The Respondent is a multi-campus institute providing TAFE education in the Gippsland Area.

[14] The Applicant was employed by the Respondent, and its predecessor entities, since 25 July 1982 as a teacher engaged in apprentice and trade training. His annual gross salary was $85,613 per annum.

[15] On 2 March 2016, a complaint was raised with the Respondent regarding an incident involving the Applicant and another of the Respondent's employees Ms Claire McGrath. It was alleged that the Applicant in the course of discussing a student issue raised with him by Ms McGrath became distressed, swore in front of Ms McGrath and at the conclusion of the interaction punched a cupboard.[1]

[16] On 2 March 2016, the Applicant was suspended from duty whilst the Respondent undertook an investigation of the incident. A letter was provided to the Applicant that same day that detailed the allegations and his suspension. Copies of the Staff Code of Conduct Policy and Procedure[2] and the Employee Discipline Procedure[3] were included with the suspension letter. The allegations outlined in the letter were:

"...During your discussions with Claire you behaved in an inappropriate manner. It is alleged that you were intimidating, swearing, aggressive and punched a cupboard."[4]

[17] The Applicant's medical condition following the 2 March 2016 incident resulted in a period of extended sick leave which delayed the conduct of an interview with him regarding the incident. Apart from a period of approximately three weeks in August 2016, the Applicant was on personal leave from 3 March 2016 to 30 January 2017.[5]

[18] On 11 July 2016, the Respondent interviewed the Applicant in relation to the 2 March 2016 incident following a clearance by the Applicant's medical practitioner which allowed him to participate in the interview. The Applicant's recollection of the events during his interview on the 2 March 2016 was limited. He stated during the interview that he did not recall punching the cabinet or swearing or driving home following the incident although he vaguely recalled Ms McGrath coming to see him regarding a student.[6]

[19] On 15 July 2016, a letter was sent by the Respondent to the Applicant regarding the investigation findings and outcome. The letter included the following conclusion, final warning and steps to be undertaken in respect to the Applicant's return to the workplace:

"As you cannot recall this incident, we have had to rely on the complainant's statement and witness statement. After taking these into consideration it is evident that you did in fact punch the cupboard which intimidated the complainant.

Peter, you are advised Federation Training considers this a serious matter, in particular as it impacts on the Health and Wellbeing of our staff members and our reputation in the community. For this reason, this letter can also be considered a first and final warning in relation to this matter. This warning will be placed on your personnel file for a period of 12 months and, should there be any further instances of a same or similar nature, we will progress the matter further, up to and including consideration of termination of your employment.

In addition, the following criteria will apply on your return to the workplace:

• To assist you returning to your role, you will meet with your Manager, Michael Hamilton and our Return to Work Coordinator to develop a plan which must be approved by your medical practitioner.

• You must immediately work with Sharon Junker Human Resources Operations Manager and your Manager Michael Hamilton to develop a behaviour plan which you must adhere to. Sharon will contact you to arrange for this to be completed.

• You must participate in a meeting with the complainant and apologise for your behaviour."[7]

[20] In August 2016, the Applicant went back to work on a Return to Work Plan consisting of a team teaching arrangement which involved the Applicant being paired up with another teacher. That arrangement lasted a week at which point the other teacher resigned and the Applicant was allocated the class the following week. Following a further two week period, the Applicant went on stress leave until January 2017.[8]

[21] On 6 December 2016, the Respondent wrote to the Applicant's treating medical practitioner, Dr Manish Agaskar. Noting in the letter that the Applicant was generally required to work 38 hours per week, the Respondent sought advice as to whether the Applicant "...can safely perform his duties as a Teacher at Federation Training." The Respondent posed a series of questions to Dr Agaskar in the letter including whether he was capable of performing his duties on a full-time basis.[9]

[22] On 12 January 2017, Dr Agaskar responded to the 6 December 2016 letter from the Respondent and advised the following in relation to the Applicant's general medical condition and fitness for work. There were no explicit restrictions on the hours to be worked by the Applicant:

1. Treatment: Relaxation techniques, had counselling with psychologist Lynette Howell and medications in the past.

2. The risk of relapse is possible if subjected to excessive pressure by management.

3. As said by Peter, he is fully capable to perform as a teacher, however, he is unsure about interactions with the management."[10]

[23] On 25 January 2017, the Applicant's Manager, Michael Hamilton, emailed the Applicant directing him to take annual leave from 30 January 2017 to 24 March 2017 (a total of 69 days leave) in order to reduce his annual leave balance which at that point was 69 days.[11] The Applicant did not agree with the direction given to him and subsequently agreed an alternate arrangement with his Manager that involved the taking of two days annual leave per week commencing on his return to work.[12]

[24] The Applicant returned to work on 7 February 2017 on the basis of three days per week and was allocated 16 teaching duty hours per week.[13]

[25] On 28 February 2017 the Applicant forwarded a written apology via email to Ms McGrath arising from the 2 March 2016 incident in which the Applicant stated:

"Claire I wish to apologise if my breakdown in March of last year caused you any stress."[14]

[26] On 14 March 2017 Ms McGrath responded to Mr Michael Hamilton's inquiry as to whether the Applicant's apology dated 28 February 2017 in relation to the March 2016 incident was "sufficient and acceptable." In her response[15] Ms McGrath advised that:

"...I do not feel that Peter Sheehan's apology is either suitable or that he has taken responsibility for his actions in February 2016."

[27] On 6 March 2017, the Applicant received a letter from the Managing Director of Federation Training, Mr Jonathon Davis, advising him that that a formal complaint had been received from Mr Hamilton regarding events alleged to have occurred on 21 February 2017 in the mechanical workshop at Yallourn involving the Applicant. The Applicant was suspended from 6 March until 14 March to allow for an investigation to be conducted. The following extract of the letter details the alleged events:

• The event occurred on Tuesday 21 February 2017.

• The event occurred in the Mechanical Engineering workshop at Yallourn Campus, where there were two student groups undertaking study.

• The student groups included a 1st year apprentice group and a 3rd year apprentice group.

• You allegedly found a door propped open with a piece of steel, which you considered a tripping hazard.

• You allegedly called both groups of students into the workshop to address the matter.

• You allegedly confronted the students, accusing them of propping the door open.

• You were allegedly exceedingly aggressive towards the group, including the use of an extremely graphic profanity.

• You were not the scheduled teacher of the 1st yr apprentice students, and did not communicate with their teacher about the situation.

• Employers and students have contacted Federation Training to express their dissatisfaction with the incident."[16]

[28] The Respondent engaged an independent third party consultant, Ms Wendy Cox, to investigate the allegations. Ms Cox interviewed the Applicant, staff and some students as part of her investigation.

[29] On 28 March 2017, the Applicant was interviewed by Ms Cox in the presence of his daughter who was acting as his support person. A statement was taken from the Applicant and subsequently emailed by Ms Cox to the Applicant on 29 March 2017 seeking his comments.[17]

[30] On 4 April 2017, the Applicant forwarded an amended statement to Ms Cox with his comments and edits marked up in red.[18]

[31] Ms Cox through the course of her investigation interviewed staff of the Respondent including Mr Michael Hamilton[19], Mr Glen Forecast[20] and Mr Mick Lewis[21]. Copies of interview summaries were provided to Federation Training along with interview observations and interim conclusions on 29 March 2017.[22] The interim report drew the following interim investigation conclusions:

"At this stage of the investigation, the allegations are not wholly substantiated. The reason for this is that Glen Forecast was not in the workshop at the time of the alleged conversation Peter had with the students, but overheard from the classroom. Mick Lewis saw the gathering but did not directly hear any comments. Mick's questioning of students shortly after however provides a consistent report with the student's report to Glen.

There is significant concern in Peter's recollection of events and that based on his apparent state of health, the allegations are plausible. Peter's reactions when interviewed in his home noting with the support of a family member, were still quite emotive. He appears distressed. Peter's observed reactions, along with comments within his statement, indicate that at this stage, the allegations are plausible."

[32] On 3 May 2017, Ms Cox interviewed three Australian Paper apprenticeship students who were present during the incident on 21 February 2017 and their supervisor.

[33] On 17 May 2017, Ms Cox provided the Australian Paper employee interview summaries, interview observations, investigation conclusions and recommendations to the Respondent.[23] The Investigation Conclusion contained the following summary of findings:

• The workshop door had been propped open with a piece of steel.

• Peter Sheehan had inappropriately gathered students together by interrupting other teachers/students and abruptly demanding students come into the workshop.

• Peter Sheehan addressed the students with an aggressive tone, using accusatory phrasing, swearing and name calling which was offensive"

[34] Ms Cox went on to conclude in her Investigation Conclusion that:

"The outcome of the investigation is that the allegations have been substantiated."

[35] A number of recommendations for consideration were then made in Ms Cox's report, the relevant ones being as follows:

"1. Peter Sheehan be informed that Apprentice Students have been interviewed individually and that consistency was established between student and employee description of events. The investigation has substantiated the allegations into the conduct of him on 21 February 2017 and consideration will now be given to appropriate disciplinary action.

1. Given Peter Sheehan's reasoning for this actions and lack of accountability for what has now been verified as having occurred, it is not recommended that Peter returns to a teaching role. A determination be made by the organisation as to next steps relating to Peter's employment."[24]

[36] On 24 May 2017, the Respondent's Managing Director sent an email to the Applicant requesting that he attend a meeting with the Respondent's CEO to discuss the findings of the investigation and provide him with an opportunity to respond.[25]

[37] On 26 May 2017, the Applicant advised the Respondent via email that he would not be attending the meeting due to his medical condition and that the findings could be sent to him by post.[26]

[38] On 30 May 2017, the Respondent's Managing Director sent the Applicant a letter advising him of the termination of his employment effective that day with four weeks payment in lieu of notice up to and including Friday, 16 June 2017 and a pay out of his leave accruals. The reasons for the termination of the Applicant's employment were stated as follows:

"The Institute has now received a final report from the investigator, which has been considered by myself and the Human Resources Operations Manager. It is clear that this report demonstrates consistency in statements from witnesses to substantiate the complaint. This behaviour is unacceptable in any workplace but creates even greater risk when dealing with young students. It is Federation Training's determination that an unsafe and unhealthy work environment exists as a result of your inappropriate and unprofessional behaviour, to the extent that we believe it is an untenable situation. Federation Training cannot, consistent with its work health and safety obligations to students and other staff, allow you to return to the workplace.

Your inappropriate behaviour is inconsistent with the values of Federation Training, your Contract of Employment and the Staff Professional Code of Conduct, all of which you signed off and agreed to comply with when engaged by Federation Training.

In considering all of the associated information and risk factors, we have made the determination that your employment with Federation Training should be terminated effective immediately. Federation Training has carefully considered your statements made to the investigator and all the surrounding circumstances you have raised including your length of service and prior ill health. However the seriousness of your conduct has left the Institute with no alternative other than termination of your employment."[27]

[39] Ms Knowles who appeared for the Applicant provided closing written submissions and closing submissions in reply that supplemented an outline of submissions and evidentiary materials filed prior to the hearing.

[40] It was submitted that the Applicant: "...had been unfairly dismissed in that his dismissal was harsh, unjust or unreasonable within the meaning of s.385(b) of the Fair Work Act 2009."[28]

[41] The Applicant submitted that the reasons for his dismissal were not readily apparent from reading his letter of termination dated 30 May 2017. The reasons stated in that letter were referred to by the Applicant as the "OHS Breach Allegation" and a "Breach of Policy Allegation."[29] It was submitted that the uncertainty as to the reasons for dismissal arose from the conflicting reasons provided in the Respondent's F3 and also due to the evidence adduced at hearing from Ms Junker as to the Respondent's reliance on the prior incident of 2 March 2016 in addition to the behaviour of 21 February 2017.[30]

[42] The Applicant submitted that it appeared that he had been terminated for the following reasons:

(a) That the Applicant had been "exceedingly aggressive towards the group, including the use of an extremely graphic profanity" per the allegations in the letter of 6 March 2017[31] and as referenced in the Respondents F3.[32]

[43] The Applicant in his submissions accepted that he swore during the 21 February 2017 incident and may have used the words "dickhead" or "cowards" while addressing the students. The Applicant submitted that he had not been "exceedingly aggressive". The language conceded by the Applicant did not in his submission constitute "extremely graphic profanity" nor was there any evidence that the language used caused any offence to those present.

[44] In relation to the OHS Breach allegation the Applicant submitted that regard should be had to a range of factors including the seriousness of the incident, relevant OHS training provided by the Respondent and whether the incident was isolated. The Applicant further submitted that there was no evidence that his conduct created a risk to the health and safety of the apprentices or resulted in an unhealthy work environment.

[45] As regards the Breach of Policy allegation the Applicant submitted in rejecting that allegation, that he did not believe he had signed a Contract of Employment on commencement of employment, that Federation Training had not provided evidence of a signed Contract of Employment and that the Staff Professional Code of Conduct did not set out occupational health and safety procedures or consequences.

[46] In respect of the 2 March 2016 incident the Applicant submitted that the Respondent had only led hearsay evidence in relation to that incident and had not sought to rely on that evidence. Further, the Applicant denied being aggressive in the 2 March 2016 incident and submitted that his evidence was the only first-hand evidence of the incident available to the Commission.

[47] The Applicant submitted that none of the reasons relied on by the Respondent in terminating the Applicant's employment constituted serious misconduct and were not "sound, defensible or well founded".[33] Consequently the decision to terminate the Applicant was not supported by a valid reason.

[48] The Applicant submitted that the reasons for his termination which were contained within the 30 May 2017 letter were not explicitly put to him in plain, clear or consistent terms. Additionally, the 2 March 2016 incident, which the Respondent has subsequently sought to rely on, was not put to the Applicant in the 6 March 2017 allegation letter. Importantly, the Applicant was not notified of the reasons for his dismissal prior to it taking effect.

[49] The Applicant submitted that he was not provided with an opportunity to respond to the reasons for his dismissal. In making this submission the Applicant relied on the following:

• The termination letter of 30 May 2017 found proven a number of allegations that were not explicitly put to the Applicant in plain, clear or consistent terms.

• The Applicant's 26 May 2017 request for the findings of the investigation to be forwarded to him was not accommodated. Rather, the outcome and advice of his dismissal was forwarded to him on 30 May.

• The OHS Breach allegation was not put to the Applicant in the 6 March 2017 letter.

• The Breach of Policy allegation was not put to the Applicant in the 6 March 2017 letter.

• The March 2016 incident was not put to the Applicant in the 6 March 2017 letter.

• A number of conclusions and recommendations reached by Ms Cox and provided to the Respondent in her investigation conclusions were not provided to the Applicant for a response.

[50] The Applicant submitted that the criteria in ss387(d) & (e) of the Act were not relevant in this matter for the purpose of determining whether the Applicant had been unfairly dismissed.

[51] The Applicant submitted that in respect to the criteria in ss387 (f) & (g) of the Act, the Respondent had 339 employees, had dedicated human resources staff, routinely engaged external solicitors on human resources matters and was a member of the Victorian TAFE Association through which it was able to access industrial relations advice.

[52] In respect to any other matters the Commission may consider relevant the Applicant submitted that there were a number of matters that ought to be considered including the Applicant's age, health, employment prospects and the fact that he was raising an OHS issue at the time of the 21 February 2017 incident.

[53] Mr Powles who appeared for the Respondent provided closing written submissions that supplemented an outline of submissions and evidentiary materials filed prior to the hearing.

[54] It was submitted that the Applicant had a non-delegable duty of care towards students in his class and was in a position of trust. He was terminated for a valid reason in that: on 21 February 2017 he engaged in conduct that could be described as aggressive; used derogatory language directed towards a group of students; and acted disrespectfully towards a fellow teacher when he removed students from his class without consultation.

[55] It was submitted that the Applicant's conduct occurred in circumstances where he accepted that he had an obligation to keep students safe, was aware of the Respondent's policies and fully understood the implications of the final warning that he had received in relation to the 2 March 2016 incident.

[56] The Respondent submitted that there was no confusion on the Applicant's part as to the allegations as he conceded during cross-examination that he understood them. They (the allegations) were set out with specificity and clarity in the letter to the Applicant dated 6 March 2017. The Applicant was also afforded an opportunity to reply in writing to the allegations and participate in an interview with Ms Cox which he did on 28 March 2017. The Applicant subsequently provided Ms Cox with an amended draft statement of interview. This sequence of events demonstrated in the Respondent's submission that the Applicant was notified of the reasons for his dismissal prior to a decision being made and was afforded an opportunity to respond to the reasons relied on for such dismissal.

[57] The Respondent submitted that the OHS Breach and Breach of Policy allegations referred to by the Applicant were the legal and logical consequence of the misconduct allegations detailed in the 6 March 2017 letter to the Applicant having been substantiated. The Respondent was not obliged to put the 2 March 2016 incident and final warning to the Applicant as its primary submission was that that incident had not formed part of the valid reason for the Applicant's dismissal.

[58] The Respondent submitted that s.387(d) was not a relevant consideration in the current matter and conceded that in respect to ss387(f) & (g) it was a large organisation with dedicated human resources specialists.

[59] With respect to s.387(e) the Respondent submitted that it was a relevant consideration that the Applicant was on a final warning at the time of the 21 February 2017 incident. It further submitted that if its primary argument that the Applicant's conduct on 21 February 2017 constituted serious misconduct sufficient to establish a valid reason for dismissal was unsuccessful then in the alternative the existence of the final warning justified the decision to dismiss the Applicant.

[60] With respect to any other relevant matters for consideration pursuant to s387(h) the Respondent submitted in response to the variety of contextual matters raised by the Applicant that it would "...simply not have been possible or reasonable in the circumstances to retain the Applicant in a teaching role".[34] In rejecting the Applicant's submissions the Respondent raised a number of issues including:

• The Applicant had failed to show any remorse for his actions or admit any wrongdoing and in these circumstances the Respondent could not be confident that the Applicant would not repeat the conduct.

• The Applicant's long length of service could not extinguish the impact of the Applicant's aggressive behaviour. Furthermore, the Applicant's long service had been previously taken into account when the Respondent dealt with the 2 March 2016 incident.

• The Applicant's long service should be seen as an aggravating factor rather than a mitigating factor given that he ought to have had a clear understanding of the Respondent's Code of Conduct.

• There was no credible evidence that the Applicant had made any substantive efforts to secure alternate employment since his dismissal and that submissions regarding his future prospects of employment were simply the Applicant's opinion unsupported by objective evidence.

[61] An order for reinstatement or compensation may only be issued where I am satisfied that the Applicant was protected from unfair dismissal at the time of the dismissal.

[62] Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

"382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: High income threshold indexed to $142,000 from 1 July 2017."

[63] There is no dispute, and I am satisfied, that the Applicant has completed the minimum employment period, and is covered by a modern award. Consequently, I am satisfied the Applicant was protected from unfair dismissal.

[64] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the Act.

[65] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

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

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

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

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

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

[66] In this case, there was no dispute and I am satisfied that the matter was confined to a determination of that element contained in s.385(b) of the Act, specifically, whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant."

[67] The ambit of the conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained in Byrne v Australian Airlines Ltd[35] by McHugh and Gummow JJ as follows:

".... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."

[68] I am under a duty to consider each of these criteria in reaching my conclusion.[36]

[69] I will now consider each of the criteria at s.387 of the Act separately.

[70] I turn first to consider whether there was a valid reason related to the person's capacity or conduct.

[71] The Full Bench has summarised the approach that should be taken by the Commission to the establishment of whether there is a valid reason for dismissal under s.387(a) in the following way:[37]

"[28] The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

• a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced;[38]

• a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour);[39]

• it is not necessary to demonstrate "serious misconduct" or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal;[40]

• the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss[41] (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

• the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee's conduct)."[42]

[72] Having been dismissed for misconduct, the Commission must first satisfy itself that, on the balance of probabilities that the alleged misconduct occurred.[43] In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.[44]

[73] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the matter before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[45]

[74] The termination of the Applicant arose from events on the 21 February 2017 and on which the Respondent sought to rely in effecting the Applicant's dismissal. In the alternative the Respondent also sought to rely on the existence of a final warning issued to the Applicant following an incident on 2 March 2016. I turn to consider each of these incidents.

[75] The Applicant gave evidence that he had been employed by the Respondent as a technical and further education teacher from July 1982 to the date of his termination on 30 May 2017. Prior to his employment with the Respondent the Applicant worked as a fitter and turner for approximately eight years including the term of his apprenticeship.

[76] The Applicant gave evidence that following the incident on 2 March 2016 he took an extended period of leave from 30 March 2016 to 30 January 2017 due to stress and anxiety. The Applicant stated the Respondent was aware of his disability.[46] Immediately prior to his return to work, the Applicant's Manager, Mike Hamilton, directed the Applicant to take accrued annual leave of 39 days in a continuous period which the Applicant did not agree to. An alternate arrangement of two days annual leave per week was agreed [see paragraph [23]].

[77] According to the Applicant's evidence no adjustments or accommodations were made by the Respondent in providing a return to work plan that enabled him to transition back to work.[47] This was in contrast to the arrangements that had been put in place in August 2016 and contrary to his belief as to the arrangements he would be coming back on.[48] The Applicant returned to work on 7 February 2017.

[78] The Applicant accepted during cross-examination that a medical clearance had been obtained from his medical practitioner for him to return to work, that there was no restriction imposed by such clearance on his hours of work and that the annual leave arrangement agreed to with his supervisor meant that he was returning to work on a part time basis (three days per week). The Applicant conceded that it was reasonable for the Respondent to have relied on the medical clearance and that he did not specifically raise with the Respondent that he needed assistance on returning to work.[49]

[79] The incident on 21 February 2017 specifically arose from the Applicant finding a large bullet of steel being used to prop open a doorway to the workshop. Concerned about the OHS risk he proceeded to gather all the students, both from his class and from the adjoining classroom.

[80] In gathering students from the other class the Applicant's evidence was that he requested one of his students to go across to that class and get the first year students. He did not remember collecting those students himself.[50] When pressed during cross-examination the Applicant conceded that he did not have a thorough memory of the event but stressed it was only that part of the incident in which the students from the adjoining class were gathered that his memory was unclear.[51]

[81] The Applicant gave evidence that after gathering the two classes of students together he addressed the students regarding the OHS risk presented by the bullet of steel being propped against the door. In doing so he denied having been "exceedingly aggressive" or using "extremely graphic profanity".[52]

[82] The Applicant conceded that in addressing the students he may have used the words "dickheads, bullshit" and words to the effect of "cowards" but denied using the term "moron".[53] The Applicant conceded that he had raised his voice and may have been waving his arms around but this was how he normally communicated with a large group of students.[54]

[83] The Applicant refused to concede that his use of language during the incident on 21 February 2017 was inappropriate; he felt that he remained professional in the context of a workshop environment, maintained that swearing was common in the workshop and that his swearing was simply workshop language or banter. The Applicant also maintained that the context in which language was used needed to be considered.[55] He denied directing the language at a particular individual, rather it was directed to the collective group of students.

[84] The Applicant held the view that the seriousness of the OHS issue he confronted justified his action in speaking with the students in the manner that he did whilst also recognising the importance of keeping students safe.[56]

[85] The Applicant conceded in his interview with Ms Cox, during her investigation of the incident that if the allegations against him were substantiated then that behaviour would have been inappropriate. He also confirmed during cross-examination that he accepted that if he removed students from another class without consulting the relevant teacher then that would have been inappropriate.[57]

[86] The Applicant confirmed during cross-examination that he knew he was on a final warning for the prior incident of 2 March 2016, understood that behaviour of a similar nature would result in further disciplinary action and he accepted that he needed to avoid becoming involved in another incident of inappropriate behaviour because of the significant impact that would have on his career.[58]

[87] The Applicant acknowledged during cross-examination that he was aware of the Respondent's Code of Conduct before both the 21 February 2017 and 2 March 2016 incidents.[59]

[88] Ms Junker gave evidence that she had been employed by the Respondent for eight years, had a total of eight years' experience in human resources and had held the position of Manager Human Resources Operations Manager for two years.

[89] Ms Junker gave evidence that in initiating an investigation of the incident of 21 February 2017 involving the Applicant she chose to engage a third party. This was to ensure the investigation was thorough and completely independent and to also ensure that her prior knowledge arising from March 2016 incident was not brought into the investigation.[60]

[90] Ms Junker also gave evidence that the termination of the Applicant's employment which was confirmed in the 30 May 2017 letter was a result of the allegations having been substantiated through the investigation conducted by Ms Cox.[61]

[91] During cross-examination Ms Junker gave evidence in relation to the initiation of the investigation, conduct of the investigation and its outcome and the reasons for termination of the Applicant's employment. The relevant evidence Ms Junker gave on these issues was:

• Mr Hamilton initiated the complaint regarding the Applicant's conduct prior to Australian Paper then lodging a complaint;[62]

• She chose to brief Ms Cox regarding the previous incident of 2 March 2016 involving the Applicant and conceded that in doing so may have created a bad impression of the Applicant in Ms Cox's mind;[63]

• She conceded that the Applicant was not dismissed for use of exceedingly aggressive behaviour or extremely graphic profanity and that the letter of termination dated 30 May 2017 did not accurately convey the reasons for termination of the Applicant;[64]

• She accepted that the reasons for termination expressed in the letter dated 30 May 2017 were not put to the Applicant in the original letter dated 6 March 2017 that had outlined the initial allegations;[65]

• Accepted that the summary of the investigation was not provided to the Applicant until after the termination of his employment was communicated to him.[66]

[92] Ms Cox gave evidence that she owned and operated a business known as Wendy Cox Human Resources Consulting for the past three years and had fifteen years' experience in human resources.

[93] Ms Cox stated that she had been contacted by email by Ms Junker on 5 March 2017. This contact was followed by a telephone conversation with Ms Junker on the 6 March 2017 regarding the Respondent's request that Ms Cox undertake an investigation into complaints raised by Australian Paper on 3 March 2017 regarding the Applicant's conduct on 21 February 2017.[67]

[94] Ms Cox gave evidence in her statement as to the investigation timeline and the process she undertook. Ms Cox included in her witness statement a copy of the investigation report which included the interview statements of eight individuals that she interviewed including the Applicant. A report with her investigation observations, conclusions and recommendations was provided to the Respondent on 17 May 2017.[68]

[95] Ms Cox's evidence was that the relevant findings regarding the Applicant's conduct were:

• The workshop door had been propped open with a piece of steel.

• Peter Sheehan had inappropriately gathered students together by interrupting other teachers/students and abruptly demanding students come into the workshop.

• Peter Sheehan addressed the students with an aggressive tone, using accusatory phrasing, swearing and name calling which was offensive.

[96] Under cross-examination Ms Cox was questioned in relation to her investigation conclusion that the allegations against the Applicant had been substantiated. Specifically, Ms Cox was pressed regarding the particular allegation contained in the 6 March 2017 letter from the Respondent to the Applicant that he had been "...exceedingly aggressive towards the group, including the use of extremely graphic profanity". Ms Cox conceded that the evidence provided by witnesses in the matter did not support a conclusion that the Applicant had used "extremely graphic profanity" or acted in an "exceedingly aggressive manner".[69]

[97] Ms Cox gave further evidence that no individual that she interviewed claimed to have been offended by the Applicant's language and that the conclusion she reached regarding the Applicant's conduct being offensive was based on her own subjective opinion of the Applicant's language as reported to her through the course of her investigation.[70]

[98] During cross-examination Ms Cox conceded that she was advised by Ms Junker before commencing her investigation that the Applicant had been on sick leave for twelve months following an incident in 2016 and that the incident involved the intimidation of a female staff member. Ms Cox acknowledged that this information was in her mind as she undertook the investigation; she took as fact the previous investigation finding and had a negative impression in her mind of the Applicant.[71] She denied however that the information provided to her had any impact on the conduct of her investigation.[72]

[99] Mr Forecast gave evidence that he had been employed by Federation Training since May 2016 as a Trainer and prior to that had worked in industry from 1977 to 2014, primarily as a maintenance fitter and turner. Mr Forecast also provided a witness statement as part of Ms Cox's investigation of the 21 February 2017 incident.[73] On the 21 February 2017 Mr Forecast was teaching in a classroom adjacent to the workshop in which the Applicant was taking a class.

[100] Mr Forecast gave evidence that the Applicant came into his classroom in an agitated and upset state at approximately 10.00am and proceeded to direct the students to accompany him to the workshop without consulting Mr Forecast.[74] Mr Forecast stated that he followed the students into the corridor outside of the workshop whereupon he overheard the Applicant completely lose his temper with the students, shouting directly at them and using words such as "morons, dickheads, and cowards". He regarded the Applicants behaviour as "completely over the top".[75]

[101] Mr Forecast gave evidence of his observations of the impact of the Applicant's behaviour on the students immediately after the incident. He stated that he observed a range of responses from students ranging from "...amusing, others were angry and unsettled. Some were quiet." He observed that one of the students was distressed as a result of the incident and he advised the student that there was a complaint system available.[76]

[102] Under cross-examination some inconsistencies between the statement provided by Mr Forecast to Ms Cox as part of her investigation and the witness statement provided to the Commission as part of these proceedings were highlighted. Specifically, discrepancies were highlighted between the descriptions of what the Applicant had said to Mr Forecast on entering his classroom on 21 February 2017.

[103] In Mr Forecast's statement provided to Ms Cox on 8 March 2017 he stated that the Applicant came into his classroom on 21 February 2017 and said:

"...listen up guys I'm not putting up with this anymore, I want this workshop clean. I want you to come down 45 minutes prior to the end of the day and clean up the workshop"[77]

[104] In Mr Forecast's witness statement in the present proceedings he recounted the exchange between himself and the Applicant on the 21 February 2017 in the following terms:

"Peter (to the room in general, not directed to me): I need to know who chocked the door open

[105] The potential that Mr Forecast had confused two different incidents was initially not accepted by Mr Forecast during cross-examination although in re-examination he confirmed that there had been an earlier incident in which the Applicant had taken students out of Mr Forecast's classroom.[78]

[106] Mr Forecast stated during his evidence that while he could not recall the exact sequence of words used by the Applicant, he confirmed that he had heard the three words, "dickhead, moron and coward" used. During cross-examination Mr Forecast was more equivocal in relation to use of the word "moron" and conceded that it was "something like that".[79] He denied having reported to his supervisor Mr Hamilton that the Applicant had used "extremely graphic profanity."[80] Mr Forecast was however insistent that the Applicant's voice had been "very loud" whilst addressing the students and that he (Mr Forecast) had been "...shocked more than anything" by the Applicant's conduct.[81]

[107] Mr Jenkins gave evidence that he was a first year apprentice employed by Australia Paper, that he attended the Yallourn Campus of Federation Training, that he was present on the 21 February 2017 and witnessed the incident involving the Applicant and had subsequently given a witness statement to Ms Cox during her investigation of that incident.[82]

[108] Mr Jenkins gave evidence that on the 21 February 2017 the Applicant came in to the first year apprentice class being taught by Mr Forecast and told all of the class to "get out now" and gathered all of the students around the doorway to the workshop and proceeded to raise the issue of a chocked doorway with the students.

[109] Mr Jenkins gave evidence that the Applicant in addressing the students had said "...which one of you bloody morons put this steel here"[83] and that whoever put the steel there and had not owned up to it was a "coward".[84] Mr Jenkins described the behaviour of the Applicant as "...aggressive and loud, and his language was very derogatory"[85] and stated that "all of the students were in shock".[86]

[110] Under cross-examination Mr Jenkins conceded that swearing was pretty commonplace in some parts of the workshop, that he had not made a complaint to Australian Paper regarding the incident, that the Applicant had not used graphic profanities, and that he couldn't be sure that the Applicant hadn't used the word "dickhead" rather than "moron". He also confirmed that the events had not had a negative impact on him.[87]

[111] The Applicant gave evidence of the events leading up to and including the incident of 2 March 2016. The lead up events on that day created a level of frustration for the Applicant which culminated in an exchange with Ms McGrath during a lunch break on that day at the conclusion of which he turned around and hit a locker in frustration. The Applicant gave evidence that he immediately apologised to Ms McGrath which he claimed she accepted.[88]

[112] The Applicant gave further evidence that he met with his manager and Ms Junker later that day and was advised of the seriousness of the incident and was suspended while an investigation took place into what the Respondent regarded as a serious breach of the Code of Conduct. The Applicant stated that having been advised of his suspension he was in a state of shock and could not remember driving home.[89]

[113] The Applicant confirmed during cross-examination that when he was subsequently interviewed in respect of the incident he was unable to remember the incident save for recalling that Ms McGrath came to see him on 2 March 2016 about a student. However, he was able in the present proceedings to remember the details of the incident with some clarity a year and a half after the event. The Applicant attributed this recent recollection of events to treatment that he had received from his psychologist over the past eighteen months. The Applicant conceded that his evidence in this matter was the first time he had given his version of events of the 2 March 2016 incident or shown contrition for his behaviour.[90]

[114] The Applicant denied that he had punched the cupboard during the incident; rather that he had slapped it in frustration. The Applicant claimed that such behaviour was out of character and conceded that it was not appropriate for him to have hit the locker.[91] He acknowledged that he had subsequently used the term "meltdown" to describe his behaviour during the incident of March 2016 when he was interviewed by Ms Cox in relation to the more recent 21 February 2017 incident.[92]

[115] The Applicant was challenged during his cross-examination as to whether he had in fact apologised to Ms McGrath in the immediate wake of the incident. It was put to the Applicant that Ms McGrath's claimed acceptance of the apology at the time was at odds with one of the conditions imposed on the Applicant for his return to work, that of the Applicant meeting with and apologising to Ms McGrath on his return to work. The Applicant maintained that he apologised and that Ms McGrath accepted such apology at the time of the incident.[93]

[116] Ms Junker gave evidence regarding the investigation into the incident of 2 March 2016. Initial advice of the alleged incident was provided to Ms Junker by the Applicant's then Manager, Ms Carol Riley, shortly after the incident.

[117] After that initial report Ms Junker met with Ms McGrath who stated to Ms Junker that having gone to see the Applicant regarding a student, he (the Applicant) became upset, swore and at the end of the exchange "punched the cupboard". Ms Junker stated that Ms McGrath was quite upset and in tears when recalling the Applicant's behaviour.[94]

[118] Ms Junker gave further evidence that she and the Chief Operating Officer Mark Potter then met with the Applicant at approximately 3pm on the 2 March 2016, advised him that his actions were unacceptable and that he would be stood down pending an investigation into what happened. A letter confirming his suspension for the 2 and 3 March 2016 was provided to the Applicant.[95]

[119] Ms Junker stated that the Applicant's medical condition, which was supported by medical certificates, prevented his being interviewed until 11 July 2016. During the interview on 11 July 2016 with Ms Junker the Applicant was able to recall particular events of the 2 March 2016 including; details of a meeting he had with a WHS officer at 9.00am and he also recalled that a new student was brought into his class at 9.00am without explanation. According to Ms Junker the Applicant could not however recall the detail of his interaction with Ms McGrath beyond vaguely recalling her coming to see him.[96]

[120] Ms Junker stated that a letter was sent to the Applicant on 15 July 2016 regarding the outcome of the investigation confirming that the Respondent was satisfied that the Applicant "...did in fact punch a cupboard which intimidated the complainant." The Applicant was put on a first and final warning as a consequence of the incident and findings.[97]

[121] I am satisfied that the evidence established that there was an incident involving the Applicant in which he addressed a group of students on the 21 February 2017. The incident was prompted by the Applicant's OHS concern over the use of a bullet of steel to prop open a door to the workshop in which he was teaching a class.

[122] Witnesses' versions of the events varied in respect of; whether the Applicant had gathered Mr Forecast's class of students himself; the level of aggression or intensity with which the Applicant subsequently addressed the students and also in respect to the specific language used by the Applicant in addressing the students.

[123] The Applicant himself could not recall gathering the student's from Mr Forecast's class and was of the belief he had sent one of his students in to collect the students from Mr Forecast's class. Nevertheless, the Applicant accepted that if he had gathered the students from the other class without consulting Mr Forecast then such behaviour would have been inappropriate.

[124] Mr Forecast's recollection of the event was that the Applicant had come into his classroom and gathered the students without consulting him. This evidence was corroborated by Mr Jenkins who was a student in Mr Forecast's class at the time. While Mr Forecast in his evidence appeared to have confused an earlier incident involving the Applicant also coming into his classroom and gathering the students I accept that it was confusion on Mr Forecast's part which did not in my view lessen the weight of his evidence regarding the Applicant's conduct.

[125] The Applicant's recollection of the gathering of the students was poor and on that basis I prefer the evidence of Mr Forecast and Mr Jenkins in relation to the gathering of the students. I am consequently satisfied that the Applicant had walked in to Mr Forecast's classroom on 21 February 2017, abruptly gathered the students without consulting Mr Forecast and directed them to move to the Applicant's adjacent classroom where he proceeded to address all of the gathered students.

[126] As regards the manner in which the Applicant subsequently addressed the students the Applicant sought to characterise his manner as firm and animated which he asserted was consistent with his normal manner of communication with groups of students. The Applicant was not prepared to accept that in addressing the students he had been exceedingly aggressive or used extremely graphic profanity. He did however concede that he may have used particular language including the terms "dickhead", "bullshit" and words to the effect of "coward" in addressing the students. The Applicant also stated that the language he used in addressing the students was directed to the collective group, not to an individual, and as such diminished the severity of the impact of the language.

[127] The Applicant also contended that there was an absence of evidence that any student directly involved in the incident of 21 February 2017 was offended by the language or manner of his conduct. While no direct evidence was presented on the impact beyond Mr Jenkins, Mr Forecast gave unchallenged evidence as to the reactions he observed of students arising from the incident. He also gave evidence of his own observations of the Applicant's behaviour.

[128] The Applicant's description of the level of intensity with which he addressed the students was contradicted by the evidence of both Mr Forecast and Mr Jenkins. Their evidence painted a more serious picture of the Applicant's conduct in terms of the level of anger and aggression. In respect to the Applicant's manner in addressing the students I prefer the evidence of Mr Forecast and Mr Jenkins given the similarity of their accounts.

[129] Ultimately the specific swear words used by the Applicant is less important than the circumstances and general tone of his behaviour towards his colleague Mr Forecast and the students. I am however satisfied that the Applicant used inappropriate and derogatory language including the words "bullshit", "dickheads" and "cowards". I am not persuaded that the use of the language towards the group rather than an individual lessens the severity of the conduct in circumstances where it was a group of students. I am further satisfied that in addressing the students with inappropriate and derogatory language the Applicant did so whilst angry and in an aggressive manner.

[130] The Applicant has sought to downplay his behaviour and in particular his language by reference to what he claims is an accepted standard of swearing in the workshop. It may be true that swearing is common in workshops or in workplaces more generally. However to suggest that a workshop within which students under the care of an educational institute can be compared to and treated as a normal workplace is in my view flawed. Employers in sending apprentices for training to the Respondent are entitled to expect that the teachers employed by the Respondent will maintain high professional standards of conduct in their dealings with those students.

[131] I am satisfied that the language and tone of communication was objectively offensive having regard to the particular role and responsibilities the Applicant held and the Respondent's Code of Conduct of which the Applicant was aware.

[132] I am consequently satisfied that the Applicant's behaviour on 21 February 2017 in gathering the students without consulting his colleague Mr Forecast and then addressing the students in an aggressive manner including the use of derogatory language was entirely inappropriate behaviour from a teacher and constituted misconduct.

[133] I have considered the conduct of the investigation into the 21 February 2017 incident and the Respondent's stated objective of ensuring it was carried out independently and in a manner untainted by the investigation and outcome of the 2 March 2016 incident involving the Applicant. By the evidence of both Ms Junker and Ms Cox that objective was clearly not met with Ms Junker having briefed Ms Cox regarding the prior incident on commencement of her investigation. This was poor judgement on the part of Ms Junker and should have been avoided. Nevertheless there was no evidence that satisfied me that the investigation was conducted in other than a professional and independent manner.

[134] With respect to the 2 March 2016 incident the Applicant gave his version of events in evidence in these proceedings. In doing so the Applicant sought to undermine the validity of the final warning that had been issued to him in relation to that incident. Given that the warning was issued to the Applicant in relation to the punching of a cupboard which intimidated Miss McGrath, the Applicant's evidence in proceedings that he slapped the cupboard does not appear to significantly alter the nature of the exchange that occurred.

[135] The Applicant submitted that the failure of the Company to call witnesses in relation to the March 2016 incident should mean that they cannot rely on that incident and the consequent final warning to support the termination of the Applicant. I do not accept that. It is true that no company witnesses were called to give direct evidence of the March 2016 incident although Ms Junker did give evidence of the investigation process and its outcome. I am not satisfied that the evidence advanced by the Applicant undermined the credibility of the investigation process, called into question the conclusions reached or disturbed the legitimacy of the final warning that had been issued.

[136] Claims were made by the Applicant's regarding his medical condition and the improvements in his memory he had achieved through treatment by a psychologist. These claims were not however supported by any medical evidence. The pattern of memory loss was repeated in relation to the 21 February 2017 workshop incident during which the Applicant could not specifically recall the language he used or the process by which he gathered the students.

[137] I note that the Applicant's recollection of the incident with Ms McGrath on 2 March 2016 when subsequently interviewed in July 2016 by Ms Junker was very limited. He was however able to recall with some clarity other interactions and events of that day but was unable to recall any detail of his interaction with Ms McGrath. While these lapses in memory are unhelpful to the Applicant's case, I am unwilling to draw negative inferences regarding the Applicant's loss of memory and subsequent recall. The difference in his recollection of the 2 March 2016 incident as recounted during his evidence versus the conclusions reached by the Respondent through its investigation conducted at the time essentially comes down to a slap of the cupboard versus a punch of the cupboard.

[138] Whether it was a punch or a slap there is no contest that an incident occurred in the context of the Applicant's frustration which came to the surface when Miss McGrath came to see him on that day. Ms Junker's gave unchallenged evidence as to the impact the exchange had on Ms McGrath. The Applicant himself subsequently used the term "meltdown" to describe his conduct during the incident and in a written apology to Ms McGrath in March 2017 referred to his "breakdown" during the incident.

[139] I am satisfied that there was an incident involving the Applicant and Ms McGrath during which the Applicant in frustration made contact with the cupboard in the presence of Ms McGrath in a sufficiently forceful manner to cause Ms McGrath to feel intimidated and upset. I am satisfied that his conduct during that incident was inappropriate and there was no evidence that persuaded me that the final warning issued to the Applicant was not appropriate.

[140] Following the March 2016 incident the Applicant was under clear notice as to the consequences of any future incidents involving similar behaviour. He acknowledged this during his cross-examination and it is clear that he was under no misapprehension as to the need to avoid further instances of such behaviour. Notwithstanding the Applicant's clear knowledge of the need to maintain appropriate behaviour he failed to do so as evidenced by the events of 21 February 2017 of which I have made findings above.

[141] I am satisfied that the Applicant behaviour during 21 February 2017 incident constituted misconduct and that it occurred whilst the Applicant was on a final warning issued to him in the wake of the 2 March 2016 incident. In these circumstances I am satisfied that a valid reason for the termination of the Applicant's employment existed.

[142] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[98] in explicit terms[99] and in plain and clear terms.[100] In Crozier v Palazzo Corporation Pty Ltd[101] the Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

"[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their 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."[102]

[143] The Applicant was notified by the Respondent of the reasons for his termination in the letter dated 30 May 2017. The reasons for termination were provided in the same correspondence that advised the Applicant of his dismissal. It is clear on the evidence available that the Respondent did not provide the reasons for termination in explicit terms and in plain and clear language prior to the decision being made to terminate the employment of the Applicant.

[144] I am not satisfied that the Applicant was notified of a valid reason for his dismissal before the decision was made to terminate his employment.

Opportunity to respond to any reason related to capacity or conduct - s.387(c)

[145] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. 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.[103]

[146] On 6 March 2017 the Respondent forwarded a letter to the Applicant detailing the complaint made in relation to his conduct in the incident on the 21 February 2017. The Applicant was invited as part of the formal investigation to respond in writing by 9 March 2017 and was also advised of his right to be interviewed by Ms Cox. The Applicant was interviewed by Ms Cox on 28 March 2017 and he subsequently provided on 4 April 2017 his requested amendments to the record of interview and statement prepared by Ms Cox.

[147] It is evident that the Respondent intended to provide the Applicant with an opportunity to respond to the findings and outcome of the investigation.[104] That intent is clear in the letter sent to the Applicant on 6 March 2017 where the Respondent expressly advised the Applicant of the following:

"In the event any of the allegations are substantiated you will be given an opportunity to respond to the outcome and any proposed disciplinary action prior to a final decision being made."[105]

[148] On 24 March 2017 the Respondent wrote to the Applicant requesting he attend a meeting on 30 May 2017 with the Respondent's Managing Director the purpose of which was

"....to discuss the outcomes of the investigation into your conduct during your employment at Federation Training."[106]

[149] The Applicant declined on medical grounds to attend the 30 May 2017[107] meeting and requested that the investigation findings be forwarded to him to enable him to then decide what steps he needed to take.

[150] On 30 May 2017 the Respondent wrote to the Applicant advising of the outcome of the investigation and of the termination of his employment. The Respondent did not provide a copy of the investigation findings prior to communicating the decision to terminate the Applicant's employment. Nor was the Applicant afforded the opportunity to comment on the proposed disciplinary action, that of termination of his employment, prior to it being communicated to him.

[151] I am satisfied that the Applicant was aware of the initial complaints made regarding his conduct. This was evident through cross-examination of the Applicant on this point.[108] However, the reasons relied on for his termination were expressed in more general terms in the 30 May 2017 letter in which it was stated that; "It is clear that this report demonstrates consistency in statements from witnesses to substantiate the complaint."[109]

[152] There is a tension between the Respondent's statement in the termination letter that the complaints had been substantiated when the final investigation report from Ms Cox reached conclusions that were in some key respects different to the initial complaints. Specifically, the complaints detailed in the 6 March 2017 letter that the Applicant had been "exceedingly aggressive" and used "extremely graphic profanity" were not substantiated. Ms Cox confirmed this in her evidence [see paragraph [96]].

[153] It cannot follow that the complaints listed in the 6 March 2017 letter should have been assumed or understood by the Applicant to have constituted the reasons for his termination; otherwise the conduct of an investigation would have been entirely moot. At the time the Applicant was interviewed on the 28 March 2017 by Ms Cox the complaints were just that, complaints. The investigation was only partially complete at that point of time and by Ms Cox's own words in her interim report dated 29 March 2017 she stated "at this stage of the investigation, the allegations are not wholly substantiated."

[154] The Respondent had committed to the Applicant that it would provide him with an opportunity to respond to both the investigation findings and the proposed disciplinary action before a decision was made. The Respondent did not fulfil this commitment to the Applicant for reasons that were unclear to the Commission and determined to proceed with the termination of the Applicant's employment on 30 May 2017.

[155] In all the circumstances I am not satisfied that the Respondent provided the Applicant with an opportunity to respond to the reasons relied on for the termination of his employment.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[156] I am satisfied that the Respondent did not unreasonably refuse the Applicant the opportunity to be accompanied by a support person in any discussion related to the Applicant's conduct.

Warnings regarding unsatisfactory performance - s.387(e)

[157] The Applicant had received a final warning in relation to an incident of inappropriate behaviour that took place 2 March 2016. While the dismissal of the Applicant on 30 May 2017 was for the misconduct that occurred on 21 February 2017, the existence of the prior final warning was a relevant consideration in my determining that a valid reason existed for the dismissal. The existence of the final warning weighs against a finding that the dismissal was harsh, unjust or unreasonable.

Impact of the size of the Respondent on procedures followed - s.387(f)

[158] The Respondent's F3 - Employer Response Form indicates that at the time the Applicant was dismissed it employed 339 people.

[159] I am satisfied in the circumstances that the size of the employer's enterprise did not impact on the procedures followed in effecting the dismissal. Consequently this is a neutral consideration.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[160] The evidence in this matter indicates that the Respondent had access to and did in fact utilise the services of dedicated human resources specialists employed by the Respondent. This factor is therefore a neutral consideration in my decision.

Other relevant matters - s.387(h)

[161] In respect to any other matters the Commission may consider relevant the Applicant submitted that there were a number of matters that ought to be considered. They were:

• At the time of the 21 February 2017 incident the Applicant was raising an OHS issue with students and that he was dismissed on the basis of a single incident;

• The Applicant's length of service with the Respondent of 35 years with no issues raised about his performance as a teacher;

• The Applicant's poor health and age (60); and

• The Applicant's limited prospects of securing alternate employment in the Gippsland region at the same level of remuneration and the difficulties he would face in returning to his previous occupation of a fitter and turner due to the physical effects of previous injuries.

[162] The Respondent submitted that:

• The Applicant had failed to show any genuine remorse for his conduct and the Respondent could have no confidence that the conduct would not be repeated;

• The Applicant's long service and poor health had been taken into account but that such long service could not extinguish the seriousness of the behaviour;

• No evidence was provided that the Applicant had made any substantive efforts to find alternative work nor was there any evidence that he would have difficulty in finding an alternative position at a similar remuneration level.

[163] I do not accept the Applicant's submission that his dismissal was for a single incident. As I have already found, the Applicant was on a final warning at the time of his dismissal and that was a relevant consideration in my determining that a valid reason existed for the Applicant's dismissal.

[164] As regards the submission that the Applicant's OHS concerns on which he was acting on 21 February 2017 should be treated as a mitigating factor, that needs to be balanced against the Applicant's conduct. While the Applicant may have had good reason for wanting to address the students regarding a legitimate OHS issue it did not entitle him to address them in the manner that he did or excuse that conduct.

[165] Various submissions were made by the Applicant regarding his poor health and evidence was adduced regarding the extended period of personal leave the Applicant had taken in 2016. While these submissions were not challenged by the Respondent there was limited medical evidence that would assist the Commission form a view as to the Applicant's current state of health, his health prognosis and work prospects. I therefore regard this point as a neutral consideration.

[166] The Applicant's age and length of service are relevant factors to be considered in assessing whether the termination was harsh. The Applicant's service with the Respondent of thirty five years is significant by any standards. Save for the two incidents of 2 March 2016 and 21 February 2017 no evidence was presented that indicated that the Applicant had other than a sound employment record. While the Respondent submitted that it had taken the Applicant's employment history into account both at the time of the issuing of the final warning in July 2016 and in the termination of the Applicant on 30 May 2017 the evidence on this point was limited and unconvincing.

[167] I am consequently not satisfied that the Respondent had sufficient regard to the Applicant's length of service with the Respondent and on that basis I find this factor weighs in favour of a finding that the termination was harsh.

[168] The Applicant gave evidence of his efforts to secure alternate employment which was confined to some casual work at Blackwood Garden Supplies. While the Applicant's recent planned overseas holiday may have prevented or delayed his employment search no evidence was provided as to the Applicant's efforts to secure employment within his trade and experience. The Applicant's opinion as to his employment prospects may be well founded however the evidence did not indicate that he had tested the market at this stage. Consequently I am unable to make findings on this issue and as such regard it as a neutral consideration.

[169] Having considered each of the matters specified in s.387 of the Act, I have concluded that while the Respondent has established a valid reason it failed to notify the Applicant of the reason for his dismissal in plain and clear terms prior to the decision having been made; it had failed to provide the Applicant with an opportunity to respond to the reasons for the dismissal and it had accorded insufficient weight to the Applicant's age and length of service with the Respondent. On balance I am satisfied that these failures rendered the dismissal harsh and unjust.

[170] I am satisfied that the termination was unfair within the meaning of the Act.

[171] The Applicant seeks reinstatement to his former position; an order to maintain the continuity of his employment and an order that the Respondent pay him the remuneration lost since his dismissal. In the alternative the Applicant seeks an order for compensation.

[172] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:

"390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies."

[173] I have already dealt with the issues at s.390(1)(a)-(b) above. I am satisfied that the Applicant was protected from unfair dismissal pursuant to s.382 of the Act and the Applicant was dismissed unfairly. Accordingly, I am required to determine whether to order the reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate, an order for compensation if I am satisfied such an order is appropriate in all the circumstances.

[174] Regardless of the remedy sought by the Applicant, s.390 of the Act requires I first determine whether reinstatement is appropriate before I may consider an order for compensation.

[175] The Applicant submitted reinstatement would be appropriate because:

• The Applicant's evidence was that teaching was his calling; and

• The Respondent had not led any evidence that reinstatement was not appropriate.

[176] The Respondent submitted reinstatement would be inappropriate because of:

• A manifest and bilateral loss of trust and confidence between the parties; and

  • Reputational damage occasioned by the incident, especially with Australian Paper.

[177] A Full Bench of the Commission has observed that consideration of reinstatement involves a balancing of the relevant considerations based upon evidence.[110]

[178] In Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter (Nguyen)[111] the Full Bench conveniently summarised the approach required as follows:

"[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

• The reluctance of an employer to shift from a view, despite a tribunal's assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

• The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party."

[179] While making submissions on the issue of reinstatement the Respondent did not lead direct evidence in relation to the impact of the Applicant's conduct on the Respondent's reputation, specifically with Australian Paper. Nor was direct evidence led by the Respondent in relation to the likely impact of reinstatement on the Respondent. The Respondent has sought to rely on the general evidence in the case going to the Applicant's conduct and what they submitted was a mutual lack of trust between the parties. I accord those submissions limited weight.

[180] As I have previously found, the behaviour of the Applicant was not a one off incident. By the Applicant's own evidence he struggled in dealing with pressure from management, he felt that the Respondent had been waiting for a reason to take action against him and he had felt that during the March 2016 incident investigation that the Respondent had failed to support him. I accept that there was a less than ideal relationship between the Applicant and Respondent prior to his termination and is unlikely to have been improved as a consequence of the Applicant's dismissal. I am not satisfied however that the Respondent has established on the evidence, for which it bore the onus, that the "...relationship of trust and confidence is irreparably damaged or destroyed."

[181] However, as the Full Bench stated in Nguyen a conclusion on the level of trust and confidence may not necessarily be significant or determinative on the question of reinstatement. Balanced against consideration of trust and confidence in this matter is the conduct of the Applicant which needs to be considered in the context of the unique responsibilities held by him as a teacher in the instruction, guidance and care of students under his authority.

[182] I have previously found that there was a valid reason for the Applicant's termination but that procedural deficiencies and a failure to appropriately consider and weigh the Applicant's length of service rendered the termination unfair. In the circumstances of this case, the findings of inappropriate behaviour I have made and the priority that the Respondent is entitled to place on the conduct and behaviour of its teachers weigh against an order of reinstatement.

[183] In carefully weighing the competing factors I have concluded that greater weight in this matter should be accorded to the conduct of the Applicant and the standards of behaviour the Respondent is entitled to expect from its teachers. In the circumstances I am satisfied that reinstatement is inappropriate.

[184] I am also satisfied that an order for compensation is appropriate in all the circumstances of this case.

[185] The Applicant's remuneration with the Respondent was $1,646.40 per week plus superannuation.

[186] Section 392 of the Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered:

(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's enterprise; and

(b) the length of the person's service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

(3) If the FWC is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

Note: subsection 392(5) indexed to $61,650 from 1 July 2012

(6) The amount is the total of the following amounts:

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations."

[187] A Full Bench in McCulloch v Calvary Health Care Adelaide[112] confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg v Paul's Licences Festival Supermarket[113] remains appropriate.

[188] I will now consider each of the criteria in s.392 of the Act.

[189] The Applicant's remuneration with the Respondent was $1,646.40 per week plus superannuation.

Viability: s.392(2)(a)

[190] Nothing has been put to the Commission on this issue and is unlikely to arise.

Length of service: section s.392(2)(b)

[191] I find that the Applicant's period of service with the Respondent, being 35 years, is supportive of an award of compensation being made.

Remuneration that would have been received: s.392(2)(c)

[192] It is necessary for me to determine the period of time the Applicant would have remained employed by the Respondent, or would have likely remained employed with the Respondent, had he not been dismissed.

[193] It is significant that the Applicant was, at the time of his dismissal, subject to a final warning that was issued on 15 July 2016. For reasons previously detailed I am satisfied that the final warning was not inappropriate and it would have continued to operate until at least 15 July 2017. This represents a period of some five months from the date of the 21 February 2017 incident.

[194] But for the dismissal of the Applicant it is likely that he would have remained on a final warning up to at least 15 July 2017. Given the nature of the Applicant's behaviour during the incidents of 2 March 2016 and 21 February 2017 I consider that further incidents of similar behaviour were likely and that it was unlikely that the Applicant would have remained employed by the Respondent beyond the period of the final warning (i.e. five months).

Mitigating efforts: s.392(2)(d)

[195] In considering whether the Applicant has taken steps to mitigate the loss suffered as a result of the dismissal, I should take into account whether the Applicant acted reasonably in the circumstances.

[196] Following the termination of his employment the Applicant secured a short period of casual employment and also took a long planned overseas holiday. There was no evidence however of the Applicant seeking employment within his trade or experience since his dismissal. The Applicant referred to his medical problems that would limit his employment opportunities but did not provide medical evidence to support those submissions.

[197] While the Applicant does not appear to have been particularly active in seeking new employment this is partly explained by his pre-arranged holiday arrangements and his belief as to his physical capacity to work within his trade. I have also had regard to the Applicant's age. In all the circumstances I regard this factor as a neutral consideration.

Remuneration earned: s.392(2)(e)

[198] The Applicant's evidence was that he had earned $3,703.26 since his termination of employment through his casual employment at Blackwood's Garden Supplies.[114] This payment should be taken into consideration.

[199] The Applicant was paid four weeks salary in lieu of notice and this payment should be taken into consideration. I have calculated this as $6,585.60.

Income likely to be earned: s.392(2)(f)

[200] I am satisfied that the Applicant is unlikely to earn income during the period between the making of the order for compensation and the actual compensation.

Other matters: s.392(2)(g)

[201] I find it is not appropriate in the circumstances that a contingency should be applied.

Misconduct: s.392(3)

[202] I have carefully weighed the Applicant's conduct which has led to his termination and have decided accordingly to reduce the amount of compensation by thirty percent to reflect that misconduct.

Shock, Distress: s.392(4)

[203] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation cap: s.392(5)

[204] I will deal with the compensation cap below.

[205] After taking into account each of the relevant considerations, I find that compensation in lieu of reinstatement is appropriate in this matter. Further, I find that compensation should be assessed having regard to the factors outlined above.

[206] The compensation that arises is as follows;

Deductions for income earned or likely to be earned

[207] In the absence of evidence about the actual dollar amount of the notice payment, I have based the value of the notice upon the weekly remuneration figure. If this is not correct, I will grant liberty to apply in the event that the parties are unable to agree upon any adjustment that might otherwise be required in that context.

[208] The maximum compensation limit is the lesser of 26 weeks remuneration ($42,806.40) or the statutory cap of $69,450.00 that existed at the time of the Applicant's dismissal. The amount of compensation that arises from my findings is less than that limit.

[209] Accordingly, I find that compensation in lieu of reinstatement should comprise a payment to the Applicant of $15,792.52 plus superannuation.

[210] Taxation as required by law is to be paid on the amount determined.

[211] I am satisfied that the Applicant was protected from unfair dismissal and that the dismissal was unfair.

[212] I have found that reinstatement is inappropriate but that compensation of the amount determined above is appropriate in all of the circumstances.

[213] The payment of the required compensation, with the appropriate deduction for taxation, is to be made to the Applicant by the Respondent within 14 days of this decision.

[214] An order will be issued with this decision.

[215]

Liberty is granted to seek a variation to the order in the event of a dispute about the impact of the precise monetary value of the notice payment upon the compensation figure.

Applicant's submissions received 20 October and 3 November 2017.

[1] Exhibit R9, Statement of Sharon Junker, dated 14 August 2017, at paragraphs 29 -31

[4] Exhibit R8 para 33, and Attachment SJ16

[5] Exhibit A6, Statement of Peter Sheehan, dated 24 July 2017, at para 10

[17] Exhibit R8, Statement of Wendy Cox, dated 12 August 2017, at para 10 and attachment WC4

[25] Exhibit R9, Para 13 and Attachment SJ2

[28] Applicant Closing Submissions, Para 1

[33] Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 [6]-[7]

[34] Respondent closing submissions, para 75

[35] [1995] HCA 24; (1995) 185 CLR 410 at 465.

[36] Sayer v Melsteel [2011] FWAFB 7498.

[37] Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520

[38] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

[39] Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]- [7].

[40] Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

[41] Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

[42] Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]- [34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]- [23].

[43] Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 [6]-[7]

[44] Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171.

[45] King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019 [24

[50] Exhibit A6, para 15, Transcript 628-629

[52] Exhibit A6, Para18, Transcript PN 668

[53] Ibid Para 19, Transcript PN 612, 655

[55] Transcript PN 691, 695, 696, 708, 807

[57] Exhibit R8, Attachment WC7, Para 21, Transcript PN370

[74] Exhibit R7, Statement of Mr Glen Forecast dated 12 August 2017, paras 12-15

[78] Exhibit R7 Para 16, Transcript 992

[83] Exhibit R6, Statement of Mr. Alex Jenkins dated 14 August 2017, para 4

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

[99] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[100] Previsic v Australian Quarantine Inspection Services Print Q3730.

[101] (2000) 98 IR 137.

[103] RMIT v Asher (2010) 194 IR 1, 14-15.

[110] Colson v Barwon Health [2014]FWCFB 1949, para [49] to [51]

[111] [2014] FWCFB 7198

[112] [2015] FWCFB 873.

[113] (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431

[114] Exhibit A7, Transcript PN249-256

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