This led to a discussion about whether the Chef's role ought to be split in 2. After much discussion it was resolved that this was probably an appropriate way to move forward. It would not jeopardize service quality or delivery and would start to cut some costs. Amanda and Neville to sit down with the kitchen staff and / or Nish to explain our position and carry this resolution into effect if practicable.

Further resolved that, over the course of the next quarter, Amanda to assess the needs of the care staff to determine whether appropriate staffing levels were in place.

Brett to assess whether extra service fees ought to be lifted.

Brett also to assess whether any costs could be brought down. Report to be given to the November Management meeting.

Meeting closed: There being no further items to discuss, the meeting was closed.

1. In early August 2011, a notice was posted on the kitchen notice board advising of a meeting on 10 August 2011. It said something like: "Kitchen Meeting. Agenda: Communication, Team Work, Job Descriptions." The applicant said that he asked another staff member, Christine Doran, to attend the meeting with him. He said that he also told Ms Doran that he needed to speak to her about the way Mr Chapman treated him. The applicant said that Ms Doran was the occupational health and safety representative.
2. Ms Doran denied all of these allegations in her affidavit, including the allegation that she was the occupational health and safety representative. Her evidence was not shaken in cross examination. In final submissions, the applicant did not press these claims. I accept Ms Doran's evidence in its entirety.
3. The applicant said that he asked Ms Muir if Ms Doran could attend the meeting that was scheduled on 10 August 2011. Ms Muir said that there was no need for Ms Doran to attend the meeting.
4. Ultimately, the meeting scheduled for 10 August 2011 was cancelled, as Mr Chapman was delayed elsewhere.
5. By no later than 2pm on 12 August 2011, Ms Muir instructed the payroll officer to place an advertisement in the Frankston Standard/ Hastings Leader for an experienced kitchen hand. The advertisement appeared in the edition of that newspaper published on

Able to manage food preparation and heating of evening meals for 46 residents

1. The deadline for classified advertisements in that newspaper were stated to be as follows:
   • Classified Deadline: The deadline for this paper is 2pm on the Friday prior to publication. Emailed material must be supplied at least 2 hours prior to deadline. Customers requiring an advertisement proof must supply their copy 24 hours prior to deadline.
2. In the early afternoon of Friday 12 August 2011, Ms Muir said she happened to be at Greenwood Manor. A meeting took place on that day, without more than a few minutes' notice, between the applicant, Ms Muir and Mr Chapman. The content of the discussion at that meeting is hotly contested. It gives rise to the failure to consult claim.
3. The applicant said that Mr Chapman read him a letter ("the reduction in hours letter")[324] saying:

Dear Nish

Notice of workplace restructure

This letter is to formally give you notice that a business decision has been taken to restructure the role of Chef at Greenwood Manor. This involves the full time position of Chef as currently worked reducing to a part-time role from September 5 2011. The new hours will be 9:00am to 2:30pm.

This decision is not in any way a reflection on your work performance. You are most welcome to stay on in the new position or should you wish to move on to a new challenge we may be able to consider a redundancy offer.

Please consider your options over the weekend and let us know on Monday your intentions. You are most welcome to have someone present at a meeting on Monday if you wish.

Thank you.

Neville Chapman

Manager

1. The applicant said Mr Chapman and Ms Muir tried to make him take the reduction of hours letter but he refused.
2. Mr Chapman and Ms Muir said that Mr Chapman did not read the applicant any letter at all. They said that the reduction in hours letter had not even been written at that point. Ms Muir said Mr Chapman had a written note of some talking points, which remained folded on the table throughout the meeting. They said they tried to discuss the need to reduce the applicant's hours with him, but he immediately became abusive. They said he called Mr Chapman "a liar", "a complete liar", "a racist" and "a complete racist". The meeting was terminated within a few minutes. The competing claims about the meeting are addressed in detail below.
3. Later on Friday 12 August 2011, Ms Muir typed a letter to the applicant and gave it to him. That letter ("the have Monday off letter")[325] said:
   • Dear Nish,
   • As per verbal agreement, we acknowledge your intention to leave work today at 3pm due to being "unwell". We note your refusal to accept the letter which was discussed with you today.
   • We encourage you to not return to work on Monday, and seek the legal advise (sic) you obviously need. Please advise us on Monday the date when you and your Representative can attend a meeting with Management to resolve this issue.
   • Thank you
   • Amanda Muir
4. The applicant subsequently obtained medical certificates for 12, 15, 16 and 17 August 2011 which stated that the applicant would be unfit to continue in his usual occupation due to work related anxiety. Similarly, Mr Chapman said he was deeply disturbed by the meeting and was unable to attend work on Monday and Tuesday 15 and 16 August 2011.
5. On Tuesday 16 August 2011, the applicant received by registered post a copy of the reduction in hours letter that he said had been read aloud to him by Mr Chapman at the meeting on 12 August 2011. The envelope was tendered in evidence[326]. It is post marked 15 August 2011. I accept that the applicant received the reduction in hours letter on

16 August 2011. 6. On 16 August 2011, the applicant sent a letter to Mr Chapman[327] which said: * CHANGE OF MY WORK SCHEDULE

I refuse to accept the letter in relation to the change of my work schedule without consulting me. I wish to place on record my objection to this letter and I confirm that I accept under strong protest without prejudice to my future interests and further action.

1. On 16 August 2011, Mr McMahon wrote to the applicant saying:
   • Dear Nish
   • You are probably aware that I was on holidays for the bulk of last week. When I returned to duty on Monday, I received a report from Amanda about the events of last Friday. Let me comment upon those events first:
     • 1. It is alleged that you verbally assaulted one of your managers in a most violent way.
     • 2. Among other matters, it is alleged that you accused Neville of being "a racist" and "a liar" on numerous occasions in front of witnesses.
   • 3. It is alleged that you were extremely aggressive.
   • You at least apologised to Amanda for some of your behaviour. I must say that I was extremely disappointed by this report of your poor behaviour. You have possibly left yourself open to defamation and an anticipated violence order to be taken out against you. However, it will not be up to me as to whether such action is taken against you.
   • Then you accepted your changed position by letter.
   • During the course of this week, Neville has been away on sick leave and I have been present at Greenwood Manor filling in for him. I have been disappointed to hear from a number of your co-workers allegations of bullying by you towards them and other poor performances of yours in the workplace at Greenwood Manor. These allegations are very serious.
   • Accordingly I have decided to stand you down on pay while I investigate these allegations. At this point, my investigations will take approximately 2 days. I will then put the allegations to you in person in a meeting. At that meeting you are free to have another representative with you. Following that, I expect to have your written response to the allegations back to me. I will allow you adequate time in which to do this.
   • After I have read your response to the allegations, I will determine a future course of action.
2. In the week beginning 15 August 2011, Mr McMahon received eight written complaints about the applicant's conduct at Greenwood Manor, including allegations of bullying and intimidating behaviour.
3. The applicant received a letter dated 22 August 2012 from Mr McMahon. That letter said, in part:
   • Dear Nish
   • I confirm that I have received 8 written complaints about you (sic) behaviour in the workplace at Greenwood Manor and a number of verbal ones. The 8 staff members who have made the allegations in writing have asked me to protect their identities. I have agreed to this unless the nature of a particular incident identifies a particular complainant. I must say at the outset again that I was greatly saddened by these complaints.
   • Before I outline the allegations against you I want to remind you of the public discussions about the Manor's no tolerance position of bullying. This included my position in the staff meeting held on 24 June 2010 (at which you were present) where I outlined the policy position about bullying. ...
   • I now formally advise you of the allegations in as specific terms as I can:
   • 1. Bullying
   • That you have been observed to have been intimidatory (sic) to most of the female staff that have worked in the kitchen. This includes instances of verbal bullying and / or power abuse. There is corroborative evidence for many of the incidents.
   • Such instances include:
     • a) insisting that staff members carry crates of milk around that they cannot and should not lift around;
     • b) unilaterally altering job descriptions or long standing work practices to load extra tasks on others;
   • c) constant complaints about others work performances;
   • d) spreading false rumours about fellow employees;
     • e) telling fellow employees not to speak to them again because you did not like the way that they smiled;
     • f) spreading false rumours about employees who had resigned due to your bullying to the former employees mother;
     • g) asking employees to do certain checks, then being critical when they had not done the checks fast enough;
     • h) being rude and non-compliant to the social activities staff when they are seeking to arrange Happy Hour;
     • i) yelling and shouting abuse at fellow kitchen workers and standing in their personal space while doing so;
     • j) physical intimidation reducing senior female co-workers to tears;
     • k) being rude and unpleasant to various care staff about changes to meals. I might add here that the general view of care staff is that where a late menu change is needed (such as a boiled egg) caused by the resident's immediate health needs, you have been described as being very aggressive and rude to care staff who are requesting the change.

Mr. Maggs about the state of the store room. * As indicated to you on the telephone, you will collect this letter at 4:00pm today. I expect your written response by 4:00pm Wednesday 24 August. If I require any further clarification, I will seek that from you. If I can reach a decision on the merits of your position from your letter I will endeavour to do so on Thursday 25 August. If I find there has been any criminal behaviour on your part I will let you know on that day as well. * Of course if you require any further assistance, please do not hesitate to contact me. 4. The applicant did not respond to the substance of Mr McMahon's letter verbally or in writing by 25 August 2011 or at all. However, they did have a telephone conversation in which he said he would not respond to the allegations. 5. On 25 August 2011, the applicant obtained a further medical certificate that stated that he would be unfit for his usual occupation from

25 August 2011 to 1 September 2011. 6. On 29 August 2011, the applicant received a letter dated 25 August 2011 from Mr McMahon[328]. That letter said: * Dear Nish * I must say at the outset of this letter that I have been most disappointed with your unwillingness to follow the requests that I set out in my earlier letter to you. Your conduct and statements bepoke (sic) of deliberate efforts to delay an investigation and it seemed to me that many of your statements were false. * You will also recall that when I spoke to you this afternoon I was clear to you that I wished to have your response by tomorrow afternoon. I also indicated that if you were, for whatever reason, unable to provide a letter then I was very happy to sit down with you and a representative to hear your side of the story. Then you advised me that you had some sort of statement that you had ready. * You (sic) telephone call earlier this evening in which you refused to provide that statement, or a letter or come in to see me about the allegations leaves me having to consider the totality of the evidence without your assistance. * I confirm that I have reread the written statements about your conduct and written down the corroborated evidence. That is, the evidence about which there is more than one person writing about an event or a sequence of events. Using this method I find the following: * 1. You received clear training about what constitutes bullying and the consequences of such behaviour. * 2. That you have been seriously intimadatory (sic) to many of the female staff working in the kitchen. I find cases of verbal and physical intimidation against you. I also find periods of time when you refused to talk to other staff for lengthy periods of time. * 3. I find that you did alter job descriptions of kitchen staff without seeking management approval. * 4. I find that you did abuse your manager repeatedly by calling him a racist and a liar. * 5. I also find your intimadatory (sic) behaviour and abuse towards your manager demonstrates a pattern of such behaviour towards others. * 6. I have also viewed the false written documents signed by yourself in respect of at least 2 incidents. * In our view the conduct that you have carried on with amounts to serious misconduct as defined in the Fair Work Act. * For these reasons I have decided to terminate your employment at Greenwood Manor. I will ask Lyndal to finalise your pay directly on the next pay period. * Of course if you require any further assistance, please do not hesitate to contact me. 7. After his employment at Greenwood Manor was terminated on 25 August 2012, the applicant did not work at all for a while. He then obtained some agency work and, on about 10 October 2011, obtained full time employment. 8. In his affidavit, the applicant denied that he had bullied anyone, or that he had been aggressive or falsified documents.

1. Clause 45 of the enterprise agreement[329] provides as follows:

• Where the Employer proposes a change that may result in the termination of the employment of an Employee or any other significant effect on the Employee, the Employer will notify the Employee/s concerned in writing regarding the details of (sic) proposed change, the reasons for the change and the possible effect on the employment. The Employer will meet with the Employee/s to discuss the proposed change and any proposals that may mitigate the effects of the proposed change. The Employee/s may bring a representative including a union representative to any meeting. The Employee/s will be advised of this in writing by the Employer prior to the meeting.
  • For the purposes of this clause, a 'significant effect' includes but is not limited to:

• A reduction in hours and/or remuneration
  • Changes to an Employee's classification, position description or duties
  • Relocation / redeployment to another site
  • Removal of an existing amenity

2. Section 50 of the Act provides as follows:
   • A person must not contravene a term of an enterprise agreement.
   • Note 1: This section is a civil remedy provision (see Part 4-1)
     • Note 2: A person does not contravene a term of an enterprise agreement unless the agreement applies to the person: see subsection 51(1).
3. The obligation to consult under s.170GA of the former Workplace Relations Act 1996 (repealed) was considered by Smith C in the Australian Industrial Relations Commission in CPSU, the Community and Public Sector Union v Vodafone Network Pty Ltd [2001] AIRC PR 911257 Smith C said at [25]:
   • 25. In deciding whether or not to make the orders sought I have considered the importance of consultation. Consultation is not perfunctory advice on what is about to happen. This is common misconception. Consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker. Section 170GA(1)(b) of the Act speaks of measures to avert or minimise terminations or to mitigate the adverse effects of the terminations. Consultation is not joint decision making or even a negative or frustrating barrier to the prerogative of management to make decisions. Consultation allows the decision making process to be informed, particularly as it may effect the employment prospects of individuals. The opportunity to seek to avoid or mitigate the effects of a termination can not be underestimated by those who wield power over those and their families who will the subject of the exercise of that power.
4. Section 170GA of the former Workplace Relations Act 1996 (repealed) imposed somewhat different consultation obligations on an employer to those imposed by the applicable enterprise agreement. Section 170GA provided:

(1) Subsection (2) applies if the Commission is satisfied that an employer has, on or after 26 February 1994, decided to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons, and that:

(a) the employer did not, as soon as practicable after so deciding and in any event before terminating an employee's employment pursuant to the decision, inform each trade union of which any of the employees was a member, and which represented the industrial interests of such of those employees as were members, about:

• (i) the terminations and the reasons for them; and

• (ii) the number and categories of employees likely to be affected; and

• (iii) the time when, or the period over which, the employer intended to carry out the terminations; or

(b) the employer did not, as soon as practicable after so deciding and in any event before terminating an employee's employment pursuant to the decision, give each such trade union an opportunity to consult with the employer on:

• (i) measures to avert the termination, or avert or minimise the terminations; and

• (ii) measures (such as finding alternative employment) to mitigate the adverse effects of the termination or terminations.

(2) The Commission may make whatever orders it thinks appropriate, in the public interest, in order to put the employees whose employment was terminated pursuant to the decision, and each such trade union, in the same position (as nearly as can be done) as if:

• (a) if paragraph 1(a) applies - the employer had so informed the trade union; and

• (b) if paragraph 1(b) applies - the employer had so given the trade union such an opportunity.

(3) Subsections (1) and (2) do not apply in relation to a trade union if the employer could not reasonably be expected to have known at the time of the decision that one or more of the employees were members of the trade union."

1. Nevertheless, the observations of Smith C regarding the concept of consultation remain relevant in the present context. More recently, in National Tertiary Education Industry Union v Central Queensland University [2008] FCA 481 at [22], Logan J cited with approval a passage from National Tertiary Education Industry Union v Central Queensland University [2007] AIRC 537 at [37] in which it was said:
   • [The employer] cannot have come to a final or even a provisional conclusion on the implementation of these strategies before the consultation ... takes place.
2. There was no dispute that the enterprise agreement applies to the applicant and the respondent. There was no dispute that the proposed reduction in the applicant's working hours from 40 to 25 per week constituted a significant effect, which triggered the respondent's obligation to consult.
3. The issues in dispute in relation to this claim were:

1. whether Mr Chapman read the applicant the reduction in working hours letter at the meeting on 12 August 2011, or tried to have a discussion with the applicant; 2. whether the applicant repeatedly called Mr Chapman "a racist", "a complete racist", "a liar" and "a complete liar" at the meeting, or merely called him "a liar" once during the meeting;

1. whether the respondent consulted with the applicant about the reduction in his working hours; and

1. whether the respondent was prevented from consulting with the applicant by his own conduct.

Whether Mr Chapman read out the reduction in hours letter

Dear Nish

This letter is to formally give you notice that a business decision has been taken to restructure the role of Chef at Greenwood Manor. This involves the full time position of Chef as currently worked reducing to a part-time role from September 5 2011. The new hours will be 9:00am to 2:30pm.

This decision is not in any way a reflection on your work performance. You are most welcome to stay on in the new position or should you wish to move on to a new challenge we may be able to consider a redundancy offer.

Please consider your options over the weekend and let us know on Monday your intentions. You are most welcome to have someone present at a meeting on Monday if you wish.

1. The applicant said that Mr Chapman read the reduction in hours letter aloud to him at the commencement of the meeting on 12 August 2011. The applicant said that Mr Chapman tried to make him take that letter, but he refused.
2. Mr Chapman denied those allegations. He said that he did not write the reduction in hours letter until after the meeting concluded. He said that he wrote the reduction in hours letter on 12 August 2011 after the applicant had left the facility on that day. Mr Chapman said that he posted the letter to the applicant at the post office by registered post on 12 August 2011.
3. Mr Chapman was reminded in cross examination of the have Monday off letter that Ms Muir wrote to the applicant after the meeting on

12 August 2011. That letter read: * Dear Nish * As per verbal agreement, we acknowledge your intention to leave work today at 3pm due to being "unwell". We note your refusal to accept the letter which was discussed with you today. (emphasis added) * We encourage you to not return to work on Monday, and seek the legal advise (sic) you obviously need. Please advise us on Monday the date when you and your Representative can attend a meeting with Management to resolve this issue. * Thank you * Amanda Muir 4. Mr Chapman was asked what letter Ms Muir had been referring to in her letter. Mr Chapman said that he had written a proposal. When asked where the proposal was, Mr Chapman said he did not have it with him. He said he had not been asked for it. When asked if he could get the proposal during the lunch break, he said that it had been rewritten into the reduction in hours letter. 5. Ms Muir also said that Mr Chapman did not read the reduction in hours letter aloud to the applicant at the meeting on 12 August 2011. She corroborated Mr Chapman's evidence that he wrote the reduction in hours letter after the meeting had concluded. She said Mr Chapman took to the meeting a written document that contained the proposal in point form. She said it just consisted of notes, jotted down. She said that document was the "letter" that she said in the have Monday off letter that the applicant had refused to accept. She said the document was not really a "letter" and she had just used the wrong terminology because she was so stressed at the time. 6. I find that Mr Chapman did read aloud to the applicant the reduction in hours letter at the commencement of the meeting on 12 August 2011. I find that Mr Chapman and Ms Muir both lied about this matter. My reasons for these findings are as follows. 7. The applicant was not shaken in his strong and clear evidence, which he has maintained from the outset, that Mr Chapman read the reduction in hours letter aloud to him at the commencement of the meeting on

12 August 2011. 8. Mr Chapman was unable to produce the "proposal" that he said was discussed at the meeting. He said it could not be produced because it had been typed over. This does not explain the whereabouts of the hard copy of the proposal that Mr Chapman, supposedly, took to the meeting and tried to persuade the applicant to take home with him. 9. The hard copy "proposal" document, if it had existed, would have been known to be an important document in this case. The situation had escalated dramatically within days. I consider it to be highly likely that Mr Chapman would have kept and produced the hard copy "proposal" document if it had ever existed. 10. The evidence about the "proposal" has the hallmarks of recent invention. The applicant had said clearly in his affidavit, which was filed and served on or about 20 February 2012, that Mr Chapman had read the reduction in hours letter aloud to him at the meeting on

12 August 2011. However, neither Mr Chapman nor Ms Muir disputed that allegation in their responding affidavits filed and served on or about 29 February 2012. Nor did they mention in their affidavits the supposed "proposal" document. 11. The applicant gave evidence before Mr Chapman and Ms Muir gave evidence. It was not put to the applicant in cross examination that

Mr Chapman had brought to the meeting and tried to give to the applicant a "proposal" document consisting of jotted down notes. It seems that the respondent's counsel was completely unaware of the supposed "proposal" document. 12. Ms Muir, on the day, noted in the have Monday off letter that the applicant had refused to take the "letter". Her claim that this was a misnomer is unconvincing. A person of her experience would be well able to summon up an accurate word for the supposed "proposal" document, such as "note", "memo", "document" or "proposal". 13. Mr Chapman also described the relevant document as a letter in his handwritten notes concerning 12 August 2011. He wrote: * ... he again refused to take our letter (how are you going to seek advice without it?) ... .(last document in exhibit 5) 14. The reduction in hours letter asked the applicant to let the respondent know his intentions on Monday, presumably, when he came to work. The have Monday off letter advised the applicant not to come to work on Monday. It makes more sense that the have Monday off letter would have been written after the reduction in hours letter. 15. Mr Chapman said he posted the reduction in hours letter on Friday

12 August 2011 by registered post at the post office. As a matter of common knowledge, to send the letter by registered post on

12 August 2011, Mr Chapman would have needed to go into the post office during its opening hours on 12 August 2011 and the post office would have post marked the envelope 12 August 2011. However, it is post marked Monday 15 August 2011. I do not accept that

Mr Chapman posted the letter on 12 August 2011. 16. Even if Mr Chapman had posted the letter on Friday 12 August 2011, the applicant could not have received it, in the normal course of post, before Monday 15 August 2011. Therefore, it makes no sense for the reduction in hours letter to say: * Please consider your options over the weekend and let us know on Monday your intentions ...

unless the contents of the reduction in hours letter were conveyed to the applicant on Friday 12 August 2011.

1. The tone of the reduction in hours letter is not consistent with it being written after the meeting. At the time that Mr Chapman claims to have written the reduction in hours letter, he said he had begun to feel so disturbed by the applicant's conduct towards him that he finished up needing the following Monday and Tuesday off work because he had diarrhoea. The tone of the reduction in hours letter is more consistent with it being written before the highly charged meeting occurred.
2. The advertisement for a kitchen hand was placed prior to the meeting. That circumstance is consistent with the applicant being presented with a fait accompli at the meeting.
3. Mr Chapman and Ms Muir were both adamant that a former chef at Cheltenham Manor, Mark, was not mentioned in the meeting of

12 August 2011. However, Mr Chapman's notes of the meeting on

12 August 2011 specifically refer to Mark in the context of the applicant's allegation that Mr Chapman was a racist (exhibit 5). 4. For all of these reasons, I accept that Mr Chapman read aloud to the applicant the reduction in hours letter at the commencement of the meeting on 12 August 2011.

Whether the applicant called Mr Chapman a racist etc

1. The applicant said in his affidavit, when discussing the meeting:
   • 25. ... For me to call Mr Chapman, a racist and a liar were looking back very strong words. I said them in the heat of the moment. I should have been more careful in my choice of words. ...
2. The applicant conceded in oral evidence that he called Mr Chapman "a liar" once at the meeting. However, he denied that he called

Mr Chapman "a racist" and "a complete racist" and "a complete liar". He denied that he called Mr Chapman "a liar" repeatedly. He said that he only said that Mr Chapman was treating him differently on the grounds of his ethnicity. Later, the applicant said that he only used the words "racist" and "liar" to explain his feelings, not to accuse or threaten. 3. I do not accept the applicant's evidence on these matters. He clearly admitted calling Mr Chapman a racist in his affidavit. He did not seek to retract that admission when asked if he wished to correct anything in his affidavit. The applicant's oral evidence on this point was unconvincing. I find that the applicant did repeatedly call

Mr Chapman "a racist", "a complete racist", "a liar" and "a complete liar" during the meeting on 12 August 2011.

Whether the respondent consulted with the applicant

1. Clause 45 of the enterprise agreement required the respondent to:

1. give the applicant written notice of: 1. the details of the proposed reduction in his hours; 2. the reasons for the reduction; and 3. the possible effect on the applicant's employment; 2. meet with the applicant to discuss: 1. the proposed change; and 2. any proposals that may mitigate the effect of the proposed change; and

1. advise the applicant in writing prior to any meeting of his right to bring a union or other representative to the meeting.
2. The respondent did not do any of these things. Mr Chapman conceded that he had not raised with the applicant the prospect of his hours being reduced at any time before the meeting on 12 August 2011. At that meeting, Mr Chapman, on behalf of the respondent, read the applicant the reduction in hours letter which said:

This letter is to formally give you notice that a business decision has been taken to restructure the role of Chef at Greenwood Manor. This involves the full time position of Chef as currently worked reducing to a part-time role from September 5 2011. The new hours will be 9:00am to 2:30pm.

This decision is not in any way a reflection on your work performance. You are most welcome to stay on in the new position or should you wish to move on to a new challenge we may be able to consider a redundancy offer.

Please consider your options over the weekend and let us know on Monday your intentions. You are most welcome to have someone present at a meeting on Monday if you wish. (emphases added)

1. The reduction in hours letter used the language of a concluded decision. It did not say a restructure is being considered or proposed. The only options it gave the applicant were to stay on in the new position or resign. The meeting proposed for Monday was clearly intended only to discuss those two options.
2. Consequently, I find that the respondent breached clause 45 of the enterprise agreement.

Whether the respondent was prevented from consulting

1. It was suggested that it was the applicant's own fault that the respondent did not consult with him, because the applicant reacted so badly to the initial mention of a reduction in his hours. It is true that the applicant reacted badly to the news of the reduction in his hours. However, as stated above, the first the applicant heard of the reduction in his hours was that a final decision had been made. It was not surprising that he reacted badly. In any event, the respondent had already failed to comply with clause 45 of the enterprise agreement. There was no attempt, not even an artificial attempt, to consult with the applicant prior to the restructure decision being taken and announced.

1. Subsections 117(1) and (2) of the Act provide as follows:
   • (1) An employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).
     • Note 1: Section 123 describes situations in which this section does not apply.
     • Note 2: Sections 28A & 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:
       • (a) delivering it personally; or
       • (b) leaving it at the employee's last known address; or
       • (c) sending it by pre-paid post to the employee's last known address.
   • (2) The employer must not terminate the employee's employment unless:
     • (a) the time between giving the notice and the day of the termination at least the period (the minimum period of notice) worked out under subsection (3); or
     • (b) the employer has paid to the employee (or to another person on the employee's behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee's behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.
2. Subsection 117(3) of the Act provides a table to work out the minimum period of notice. In the present case, the minimum period was three weeks.
3. Section 123(1)(b) of the Act provides that:
   • (1) This Division does not apply to any of the following employees:
     • (a) ...;
     • (b) an employee whose employment is terminated because of serious misconduct;
       • ... .
4. Section 12 of the Act defines "serious misconduct" to have the meaning prescribed by the regulations. Regulation 1.07 of the Fair Work Regulations 2009 provides that:
   • (1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
   • (2) For subregulation (1), conduct that is serious misconduct includes both of the following:
     • (a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
     • (b) conduct that causes serious and imminent risk to:
       • (i) the health or safety of a person; or
       • (ii) the reputation, viability or profitability of the employer's business.
   • (3) For subregulation (1), conduct that is serious misconduct includes each of the following:
     • (a) the employee, in the course of the employee's employment, engaging in:
       • (i) theft; or
       • (ii) fraud; or
       • (iii) assault;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee's faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee's duties or with any duty that the employee may be called upon to perform.

1. In the present case, the respondent dismissed the applicant by letter dated 25 August 2011 without notice. The letter gave the reasons for dismissal without notice as the following:
   • 1. You received clear training about what constitutes bullying and the consequences of such behaviour.
   • 2. That you have been seriously intimadatory (sic) to many of the female staff working in the kitchen. I find cases of verbal and physical intimidation against you. I also find periods of time when you refused to talk to other staff for lengthy periods of time.
   • 3. I find that you did alter job descriptions of kitchen staff without seeking management approval.
   • 4. I find that you did abuse your manager repeatedly by calling him a racist and a liar.
   • 5. I also find your intimadatory (sic) behaviour and abuse towards your manager demonstrates a pattern of such behaviour towards others.
   • 6. I have also viewed the false written documents signed by yourself in respect of at least 2 incidents.
2. In the notice of defence, the respondent said that the applicant was dismissed for those reasons and two others, namely:
   • f. refusal to provide a statement or other response to the above allegations; and
   • g. deliberate attempts to delay the investigation into the above allegations.
3. The applicant submitted that his conduct did not amount to serious misconduct and did not warrant his dismissal without notice. The applicant noted that:

1. serious misconduct is an example of the repudiation of the contract of employment; 2. each case of alleged serious misconduct turns on its own facts;

1. an employer who alleges serious misconduct carries a heavy burden.[330]
2. The applicant also relied on an academic view that:
   • where misconduct is involved, 'repeat offences' would normally be required unless the matter is one of particular gravity, for instance, involving dishonesty or a gross breach of trust.[331]
3. The allegations of bullying kitchen staff and not speaking to them for prolonged periods were hearsay. The respondent did not call as a witness any of the alleged victims. I am unable to give any significant weight to these allegations in the context of the dismissal claim. The respondent conceded as much in closing submissions. (The bullying allegations are dealt with differently in relation to the adverse action claim, because the issue there concerns what Mr McMahon believed, as opposed to what is found by the court to be true on the balance of probabilities.)
4. As to the unilateral altering of job descriptions, I find that the applicant did attempt to require kitchen hands to rotate milk crates. The applicant said himself that he asked the kitchen hands to rotate the milk crates but they refused. I also accept the evidence of Mr McMahon and Mr Chapman that there was a long standing practice that the chef would rotate the milk crates, rather than the kitchen hands.
5. However, on 30 June 2011, Mr Chapman made it clear to the applicant that it was his job to rotate the milk crates, and that he should not be changing the kitchen hands' job descriptions. The applicant continued to believe that he was in charge of the kitchen and the kitchen hands. However, Mr Chapman did not say that the applicant continued to direct kitchen hands to do tasks that were not part of their job descriptions. As the evidence stands, I proceed on the basis that the applicant did not persist in trying to make the kitchen hands rotate the milk crates after Mr Chapman clarified the roles of the chef and the kitchen hands.
6. As discussed above, I accept that the applicant did repeatedly call

Mr Chapman "a racist", "a complete racist", "a liar" and "a complete liar" at the meeting on 12 August 2011. These words were repeated in the sense that they were said more than once during the meeting. However, there is no suggestion that they were said on other occasions. 9. It is noteworthy that the applicant had regained sufficient composure prior to 3pm on 12 August 2011 to apologise to Ms Muir for his language. However, he made no attempt to apologise to Mr Chapman on that day or at any subsequent time. In his affidavit, the applicant said he had used strong words in the heat of the moment, and he should have chosen his words more carefully. However, he did not, at that stage, or even at the trial, apologise for his language. 10. The applicant referred to two cases in which an employee used strong language against an employer. In Carter v Dennis Family Corporation [2010] VSC 406, the employee said his employer was bullying him. At [333], Habersberger J said: * I have found that Mr Carter's accusation of bullying was not false in the sense that I believe he genuinely felt aggrieved by Mr Dennis' aggressive attitude towards him, although I doubt whether the conduct described by Mr Carter would constitute bullying. I have also found that Mr Carter had no collateral improper purpose in making the accusation. He wanted the behaviour to stop because it was not helping him deal with the company's pressing problems. In the circumstances, I do not consider that Mr Carter's accusation was serious misconduct or repudiation. 11. The applicant relied on this case for the proposition that the employee's genuine belief in the truth of the allegations he had made against his employer mitigated their seriousness. It was submitted that the applicant genuinely believed that Mr Chapman was a liar and had discriminated against him, and Mark, for reasons of their race. Having observed the applicant in the witness box, I accept that he genuinely believed that Mr Chapman was a racist and a liar. 12. The second case the applicant relied upon was Drury v BHP Refractories Pty Ltd (1995) 62 IR 467. In that case, the applicant was a specialised refractory bricklayer. The applicant, Mr Drury, had a dispute with his superior, Mr Seston, about whether he should be paid for certain public holidays. Mr Drury told Mr Seston he was being "pigheaded" on 14 April and 21 April. A few days later, it seems that Mr Drury "raved more abuse and ... stormed off in his usual manner". On 28 April, Mr Drury told Mr Seston he was "being fucking pigheaded". As he walked away, Mr Drury told Mr Seston "to go and get fucked". Later that day, Mr Drury again told Mr Seston that he "was being fucking pig-headed". On 29 April, Mr Drury said to

Mr Seston, said "no wonder your fucking wife left you". 13. In these circumstances, Wilcox CJ, (in the Industrial Relations Court of Australia) said at 473: * Having said all this, the fact remains that Mr Drury 's behaviour was unacceptable. I agree with Mr Raymond that it did not constitute "serious misconduct", warranting instant dismissal. But it was behaviour that went beyond even the "give and take" atmosphere of a modern Australian workplace. It was disruptive behaviour that called into question the authority of the person who was in charge of the project. If continued after a clear warning, it was conduct that constituted a valid reason, connected with the operational requirements of the project, for Mr Drury 's termination: see s.170DE(1) of the Act. And, if the conduct continued after the written warning of the morning of

29 April, the termination would not have been harsh, unjust or unreasonable; see s.170DE(2). * However, Mr Drury did not continue his abuse of Mr Seston between the giving of that warning and his termination. Perhaps he would have done so, sooner or later, if not dismissed. But the fact is that, even on Mr Seston's account of the matter, Mr Drury made no derogatory, abusive or intimidatory statements to Mr Seston between the time he was given the written warning and the time that Mr Seston terminated him. Mr Drury did continue to press his claim for the two days' pay, both with Mr Fox and in his subsequent conversation with

Mr Seston. But he was entitled to do this. The warning notice did not enjoin him from that course; nor could it reasonably have done so. The unacceptable aspect of Mr Drury 's behaviour was not the pressing of his claim for the two days pay, whether or not the claim was well-founded, but his doing so in an abusive and insubordinate manner. Mr Seston seems to have overlooked this distinction in deciding to terminate Mr Drury on the afternoon of 29 April. He seems to have regarded his action in pressing his claim as conduct that defied the morning's warning. It was not. To dismiss Mr Drury at that time, when he had not acted in defiance of the warning was to breach s.170DE(2) of the Act; the termination was, in the circumstances, harsh, unjust or unreasonable. I agree with the Judicial Registrar that the termination was invalid for substantive unfairness. ... 14. The respondent argued that there was insufficient evidence to justify the applicant calling Mr Chapman a liar. The material the applicant said he relied upon as at 12 August 2011 was somewhat confused. It concerned some statements about some buns and some rubbish bins. However, as the findings in this case show, Mr Chapman lied to the court. It is not unlikely that he has lied on less significant occasions as well. I consider that the applicant, based on is own experience, reasonably thought Mr Chapman was a liar as at 12 August 2011. Whether the applicant should have called Mr Chapman a liar is another matter. 15. In relation to the claim of racism, the evidence was equivocal. The applicant claimed that Mr Chapman had got rid of Mark, the chef at Cheltenham Manor, because, like the applicant, he was Sri Lankan.

Mr Chapman said that Mark wanted to go on extended leave without pay. The facility was unable to accommodate that request and Mark's employment was terminated after he failed to attend work. I accept that evidence. It strikes me as plausible. 16. In the absence of any other alleged instances of racism on the part of Mr Chapman, and in view of the number of other staff at Greenwood Manor who seem to belong to races other than Mr Chapman's, I do not accept the applicant's claim that Mr Chapman is a racist. However, having heard the applicant give evidence, I do accept that he genuinely believed on 12 August 2011, and still believes, that Mr Chapman is a racist. 17. The respondent argued that, whether true or not, the names that the applicant called Mr Chapman were subversive, insubordinate, and warranted instant dismissal. The respondent relied on Macken's Law of Employment, Seventh Edition, Lawbook Co, 2011 at [8.340]. That paragraph reads as follows: * Insulting or objectionable language * The use of insulting or objectionable language may constitute misconduct.321 The standard is not that of the dainty and the genteel but the standard applying in the 'give and take atmosphere' of the modern workplace.322 If abusive language is common at the workplace its use by an employee would not normally be regarded as sufficiently serious to warrant dismissal323 unless it is directed to challenging the authority of a supervisor.324 This is on the basis that abuse may justify dismissal where it interferes with the proper performance of the employment.325 Insult is very often coupled with disobedience and insolence and rarely is there a single act but usually a course of conduct culminating in a final showdown. Illustrative is the case of Pepper v Webb326_, where the plaintiff was employed as a gardener. Over a period of three months, his work deteriorated and he became inefficient. On the day of dismissal he was directed to put in some plants, which he refused to do retorting 'I couldn't care less about your bloody greenhouse and your sodding garden'. Although viewed singly his conduct would not have justified dismissal, the course of misconduct was held to be sufficiently serious to justify immediate dismissal._

321 The employer bears the onus of establishing that the alleged conduct occurred and that the circumstances in which it occurred rendered the conduct offensive: Connor v Grundy Television Limited [2005] VSC 466 (30 November 2005, Osborn J) at [63] - [65].

322 Drury v BHP Refractories Pty Ltd (1995) 62 IR 467 at 473 (standard of language in the building industry); Jupiter General Insurance Co Ltd v Ardeshir Bomanji Shroff [1937] 3 All ER 67 at 74. See also Bondi Bowling Club Ltd v Federated Liquor and Allied Industries Employees Union (1972) 14 AILR 132. (Reinstatement granted after dismissal for abusive language. Superior could not object to abuse after encouraging the employee to speak "person to person" to him in private.)

323 Boilermakers and Blacksmiths Society of Australia v BHP Co Ltd;

Re Dowling noted (1968) 10 AILR 37 (claim for reinstatement upheld). Compare Farley v Lums (1917) 19 WALR 117.

324 John Lysaght (Australia) Pty Ltd v Federated Ironworkers Association (1973) 15 AILR 323; Byrnes v Treloar (1997) 77 IR 332.

325 Brooks, Contracts for the Performance of Work, An Examination of the Supposed Differences between Contracts of Service and Contracts for Services (AULSA Conference, Sydney, 1988).

326 Pepper v Webb [1969] 1 WLR 514; compare Wilson v Racher [1974] ICR 428 (Court of Appeal).

1. The respondent argued that, although the applicant's insults of

Mr Chapman were not obscene, they were nevertheless very hurtful, offensive, subversive, insubordinate and warranted instant dismissal. The respondent also noted that the applicant has never apologised to Mr Chapman for his offensive language. Moreover, the respondent said that the applicant was insubordinate on 30 June 2011, when he loudly and aggressively told Mr Chapman to keep out of his kitchen. The applicant denied that. 2. In view of my findings about Mr Chapman's evidence in relation to his letter dated 12 August 2011 and in view of my findings about the applicant's denial in oral evidence that he had called Mr Chapman a racist, I do not accept that either of them was an entirely truthful witness. I accept that the applicant told Mr Chapman to keep out of his kitchen. I consider that the applicant, mistakenly, considered that he was absolutely in charge of everything that happened in the kitchen. However, I do not believe that he went as far as Mr Chapman said. I do not consider that the exchange on 30 June 2011 can properly be regarded as an example of intimidating or bullying behaviour. 3. The respondent also argued that it was entitled to summarily dismiss the applicant because he refused to answer the questions that Mr McMahon put to him in the letter dated 22 August 2011. The applicant made it clear in cross examination that he had had no intention in August 2011 of answering those questions. He did not suggest that he needed more time or that he needed legal advice before answering them. 4. The respondent relied on the following passages from pages 244 and 245 of Macken: * An obligation to answer questions seems to arise out of the contract of employment, but is, like all implied terms, subject to modification by statute or express agreement. * ... * A failure to answer questions which an employee is properly required to answer could be so serious as to render the employee liable to dismissal. In Associated Dominions Assurance Society v Andrew Herron J said766 that a duty lies upon an employee in general terms to give information to the employer such as: * is within the scope of his employment and which relates to the mutual interest of employer and employee. If an employee is requested at the proper time and in reasonable manner to state to his employer facts concerning the employee's own actions performed as an employee ... generally speaking [the employee is bound] to make such disclosure ... Questions asked relating to the employee's activities could be so reasonable and fair that to refuse the information may well be disobedience justifying dismissal. * 766 Associated Dominions Assurance Society Ltd v Andrew (1949) 49 SR (NSW) 351 at 357-358. An employee is required to answer honestly when asked whether they or other employees are planning to leave and join a competitor Kynixa Ltd v Hynes [2008] EWHC 1495 at [271] - [276]. 5. However, Macken contains some other pertinent passages that the respondent did not rely on, also at pages 244 and 245, namely: * The suggestion in Sybron that an employee may have to answer questions even at the risk of self-incrimination759 requires some qualification, at any rate if their Lordships meant by that phrase exposure to the risk of criminal prosecution. Generally speaking, individuals are not required to incriminate themselves.760 Thus although disciplinary "offences" under a public sector statute are not criminal offences, it has been held that the privilege against self-incrimination can apply to questions in respect of them761 and so an employee may not be obliged to answer such questions unless statute requires to the contrary. The New South Wales Industrial Commission held that an order requiring employees of the fire service to incriminate themselves would not be a lawful order.762 But the protection against self-incrimination can be excluded by statute or regulation; whether or not it has been excluded will depend on the terms of the legislation.763 When so excluded, it can indeed go so far as to require an employee to answer even if to do so might expose her or him to disciplinary action under statutory provisions,764 or even to criminal sanctions.765 * ... * However, an untrue statement made by an employee who is obliged to answer, say pursuant to the contractual obligation or by statute, will not necessarily justify dismissal because of its untruth, as where the employee is being called to answer serious but extravagantly inaccurate allegations against her or him and where the untruth relates to her or his own actions and does not falsely implicate any other person. 767

759 Sybron Corp v Rochem [1984] 1 Ch 112 at 126 per Stephenson LJ.

760 Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 at 14: "There is simply no scope for an exception to the privilege, other than by statute." Note Murray Irrigation Ltd v Balsdon [2006] NSWCA 253; (2006) 67 NSWLR 73 (special leave to appeal to HC dismissed) (contractual duty to answer questions which may have incriminated but dismissal for refusal to answer questions was harsh, unjust or unreasonable in breach of the applicable enterprise agreement).

761 Police Service Board v Morris and Martin [1985] HCA 9; (1985) 156 CLR 397 at 403 per Gibbs CJ; at 408 per Wilson and Dawson JJ; at 411 per Brennan J; Murphy J contra. Rich v Australian Securities & Investments Commission [2004] HCA 42; (2004) 220 CLR 129 at [127]; Borland v NSW Deputy State Coroner [2006] NSWSC 2002; Valantine v Technical and Further Education Commission [2007] NSWCA 208.

762 Re Dispute - Board of Fire Commissioners; Re Reports [1971] AR (NSW) 615 at 618; Pieter Lips v Supercheap Auto Pty Ltd [2004] WAIRComm 12089; Gardiner v Bluescope Steel (Ais) Pty Ltd [2005] NSWIRComm 1034.

763 Police Service Board v Morris and Martin [1985] HCA 9; (1985) 156 CLR 397 following Pyneboard Pty Ltd v Trade Practices Commisson [1983] HCA 9; (1983) 152 CLR 328 and Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281. Some legislation may give limited protection, see, eg Occupational Health and Safety Act 2000 (NSW), s 65; Occupational Health and Safety Act 2004 (Vic), s 154 and see Johnstone, Occupational Health and Safety Law and Policy, Text and Materials (2nd ed, LBC, 2004), pp 392-393.

764 Police Service Board v Morris and Martin [1985] HCA 9; (1985) 156 CLR 397.

765 Scanes v Wilson (sub nom Commissioner of Police) (1974) 22 FLR 262 at 265, applying R v Travers (1957) 74 WN (NSW) 484.

767 Scanes v Wilson (1974) 22 FLR 262; Murray Irrigation Ltd v Balsdon [2006] NSWCA 253; (2006) 67 NSWLR 73 (unfair dismissal). Contrast McDonald v Parnell Laboratories (Aust) [2007] FCA 1903 at [55] (intentionally misleading answers regarding attendance at work).

1. The question of the privilege against self-incrimination is relevant in the present case because Mr McMahon said:
   1. in his letter dated 16 August 2011, that the applicant had left himself open to an anticipated violence order; and
   2. in his letter dated 22 August 2011, that Mr McMahon would investigate whether there had been any criminal behaviour on the applicant's part, and would let him know on 25 August 2011.
2. Mr McMahon did not tell the applicant on 25 August 2011 whether he had engaged in any criminal behaviour. On that day, the respondent dismissed the applicant without notice.
3. The respondent also relied on Piddlington v Lilock Pty Ltd (T/A Glenhuntly Private Nursing Home) [1996] IRCA 445 (5 September 1996). In that case, a registered nurse was employed to work two shifts each weekend. She called in sick on the second day of the weekend of 23 September 1995, and called in sick each day of each weekend until 11 November 1995. The employer asked for medical certificates. They were not forthcoming. The nurse's employment was eventually terminated. The applicant admitted that she had actually worked at other nursing homes on some of the days she had called in sick. The judicial registrar found that the reason for the termination was the applicant's persistent refusal to comply with requests to supply medical certificates.
4. The respondent did not specifically rely in final submissions on the allegation that the applicant had delayed the investigation of his conduct.
5. Taking into account all of these matters individually and cumulatively, I do not consider that they amount to serious misconduct sufficient to summarily dismiss the applicant. The allegation of bullying of fellow staff members was effectively abandoned for the purposes of this claim. The unilateral altering of job descriptions was an isolated event. It apparently did not continue after the proper division of responsibilities was explained to the applicant. In any event, the most the applicant did was to attempt, unsuccessfully, to direct the kitchen hands to do work that was not part of their longstanding practice. Rotating the milk crates was not written down in anyone's job description. It is an overstatement to describe the applicant's conduct as a unilateral change to job descriptions.
6. Calling Mr Chapman a racist and a liar was insulting and intemperate. The insults were repeated, but were confined to a single occasion. The occasion consisted of the applicant being told, without warning, and in breach of the consultation provisions in the enterprise agreement, that his hours were being reduced from 40 hours per week to 25. It is not surprising that the applicant reacted badly. The respondent, by failing to observe a reasonable process at the meeting on 12 August 2011, created a situation in which matters were likely to take a turn for the worse. Indeed, the applicant could have reasonably formed the view that the meeting on 12 August 2011 was a set up or a deliberate provocation on the respondent's part.
7. In all of the circumstances of this case, I do not consider that the applicant's insulting language towards Mr Chapman, on a single occasion, justified his instant dismissal. The applicant's language was a personal attack. However, it was not as personal and insulting as Mr Drury saying to Mr Seston, "no wonder your fucking wife left you". Wilcox CJ did not regard that insult as warranting instant dismissal.
8. I consider that the applicant's language in this case was in about the same league as Mr Carter's allegation of bullying against Mr Dennis. Habersberger J did not consider that warranted instant dismissal, even though his Honour considered the allegation of bullying was unfounded (though genuinely believed).
9. As to the applicant's refusal to answer the respondent's questions, the obligation to answer depends on how reasonable and fair the questions are: Herron J in Associated Dominions Assurance Society Pty Ltd v Andrew & Haraldson (1949) 49 SR (NSW) 351; (1949) WN (NSW) 176. In the present case, the obligation was clouded by the circumstances in which the questions were asked, namely:
   1. the allegation by Mr McMahon that the applicant may have engaged in criminal conduct; and
   2. the serious allegations of bullying made by unidentified complainants without approximate dates or sufficient detail for the applicant to know exactly what was alleged against him.
10. Mr McMahon's allegation that the applicant may have engaged in criminal behaviour has not been pursued. However, the allegation of criminal behaviour was undoubtedly threatening and intimidating. The circumstances of the present case were that Mr McMahon, a senior and legally qualified manager, told the applicant, a relatively junior employee, that he could have engaged in an unspecified type or types of criminal behaviour. That allegation and the allegations of bullying were vague. In such circumstances, in my view, it was not fair and reasonable to require the employee to answer questions relating to the allegedly criminal behaviour and bullying. (Although the applicant did not formally claim the privilege against self-incrimination, the requirements of practical fairness that have been developed in the context of the criminal law can help to inform the requirements for fair and reasonable questions in the industrial context.)
11. Moreover, Mr McMahon's questions were asked in the aftermath of the respondent failing to consult with the applicant, contrary to the enterprise agreement, and in the aftermath of the respondent almost halving the applicant's working hours without warning. In that context, it does not seem to me that the applicant's failure to answer questions in the allocated time could properly be seen as serious misconduct amounting to a repudiation of the contract.
12. Taking into account individually and cumulatively all of the various matters that have been established, does not, in my view, indicate that the applicant engaged in serious misconduct as defined. Consequently, it was not open to the respondent to dismiss the applicant without notice.

Claim 3: adverse action: dismissal and change of hours

1. Subsection 340(1) of the Act provides that:
   • (1) A person must not take adverse action against another person:
     • (a) because the other person:
       • ...
       • (ii) has ... exercised a workplace right; ...
       • ...
     • Note: This subsection is a civil remedy provision (see Part 4-1).
2. Subsection 341(1) of the Act provides that:
   • (1) A person has a workplace right if the person:
     • ...
     • (c) is able to make a complaint or inquiry:
       • ...
       • (ii) if the person is an employee - in relation to his or her employment.
3. Section 342 of the Act defines adverse action to include dismissal and altering an employee's position to the employee's prejudice. The applicant initially said that the reduction in his working hours was adverse action because he exercised a workplace right. However, that claim was not pursued.
4. The respondent accepted that its dismissal of the applicant constituted adverse action as defined. The applicant said that the respondent took the adverse action against him because he exercised a workplace right, namely, the right, as an employee, to make a complaint in relation to his employment.
5. The applicant said that he had complained:
   1. about an unfair workload to Ms Doran; and
   2. about an unfair reduction in his working hours:
      1. at the meeting with Mr Chapman and Ms Muir on

12 August 2011; and 2. in the applicant's letter dated 16 August 2011. 6. However, in closing submissions, the applicant did not press the alleged complaint to Ms Doran and relied only on the alleged complaint about the reduction in working hours. The applicant said that his complaint was oral on 12 August 2011, and was confirmed in writing in his letter dated 16 August 2011. In that letter, the applicant said he accepted the reduction in his working hours but formally protested against the change. 7. The respondent disputed that there was any complaint. The respondent said that the applicant simply abused Mr Chapman at the meeting on 12 August 2011, calling him a racist and a liar, and did not make any complaint at all. The respondent argued that the applicant's letter dated 16 August 2011 was not a complaint but an acceptance of the change of hours, even though the applicant used the words "I accept under strong protest". 8. The applicant did not give any evidence to the effect that, at the meeting, he said words to the effect of: * I complain about the reduction in my hours; or * I object to the reduction in my hours. 9. I find that the applicant did not use any such words at the meeting on 12 August 2011. However, I consider that the applicant, by the words that he did use and by his conduct, implicitly but clearly complained at the meeting on 12 August 2011 about the reduction in his working hours. I consider that an implicit but clear complaint is sufficient for the purposes of s.341(1)(c)(ii) of the Act. 10. Moreover, the applicant's letter of 16 August 2011 was undoubtedly a complaint about the reduction in his working hours. It is true that the applicant accepted the reduction in working hours. However, he did so "under strong protest". That was clearly a complaint. 11. The question then is whether Mr McMahon dismissed the applicant because he complained about the reduction in his working hours. Subsection 361(1) of the Act provides that: * (1) If: * (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and * (b) taking that action for that reason or with that intent would constitute a contravention of this Part; * it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. 12. That is, it is for the respondent to prove that it dismissed the applicant for reasons other than the impugned reason. 13. Section 360 of the Act provides that: * For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason. 14. That is, if the respondent had a number of reasons for dismissing the applicant, the respondent will have breached s.340 of the Act if any one of those reasons was a prohibited reason. A majority in Barclay and Another v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; (2011) 274 ALR 570; (2011) 203 IR 312; [2011] FCAFC 14[332] said at [27] and [28]: * The central question under s 346 is why was the aggrieved person treated as he or she was? If the aggrieved person was subjected to adverse action, was it "because" the aggrieved person did or did not have the attributes, or had or had not engaged or proposed to engage in the industrial activities, specified by s 346 in conjunction with s 347? * The determination of those questions involves characterisation of the reason or reasons of the person who took the adverse action. The state of mind or subjective intention of that person will be centrally relevant, but it is not decisive. What is required is a determination of what Mason J in Bowling (at 241; 617) called the "real reason" for the conduct. The real reason for a person's conduct is not necessarily the reason that the person asserts, even where the person genuinely believes he or she was motivated by that reason. The search is for what actuated the conduct of the person, not for what the person thinks he or she was actuated by. In that regard, the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent. It is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question. 15. In General Motors Holden Pty Ltd v Bowling (1976) 51 ALJR 235; 12 ALR 605, Mason J (as his Honour then was) said at 617 - 618: * It is to my mind a very considerable leap forward to say that this finding in itself is a comprehensive expression of the reasons for dismissal and that they were dissociated from the circumstance that the respondent was a shop steward. No doubt this is an advance which could be made if officers of the appellant had said in evidence: "We dismissed him because he was a troublemaker, because he was deliberately disrupting production and setting a bad example and we did so without regard at all to his position as a shop steward", and that evidence had been accepted. Yet this evidence was not given and, even if it had been given, there may have been a question as to its reliability. Once it is said that the appellant dismissed him because he was deliberately disrupting production and was setting a bad example it is not easy to say without more that this had nothing to do with his being a shop steward. Although the activities in question did not fall within his responsibilities as a shop steward his office gave him a status in the work force and a capacity to lead or influence other employees, a circumstance of which the appellant could not have been unaware. It would be mere surmise or speculation, unsupported by evidence, to suppose that the appellant's management, if concerned as to the bad example he was setting, divorced that consideration from the circumstance that he was a shop steward. 16. The respondent argued that it dismissed the applicant for the reasons set out in Mr McMahon's letter dated 22 August 2011, most notably, the bullying in the workplace. The respondent said that the reasons for dismissal did not have to be good or fair in an adverse action claim. The only question is, what were the real reasons? The respondent submitted that the complaint about a reduction in hours could not have been the reason for the applicant's dismissal because the applicant in fact accepted that reduction. The respondent argued that the reason for the dismissal was not the complaint, if there was one, but the applicant's intemperate and aggressive behaviour. 17. The respondent relied on Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31] where the Full Court said: * These submissions demonstrate the failure of the appellant to understand the nature of Pt 3-1 of the Fair Work Act. A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts. In the present case, the question is whether the respondent has taken adverse action against the appellant because she had a workplace right to be on sick leave, or because she had exercised that right. 18. The respondent also relied upon George v Northern Health (No. 3) [2011] FMCA 894 at [91], where O'Sullivan FM said: * Mr Carter's evidence could not have been more definitive. It was to the effect that any complaint or inquiry made by the applicant played no part in (the decision to or) the termination of the applicant's employment. The evidence given by Mr Carter was unequivocal on this issue and I accept it as to the real and operative reason. I am satisfied the decision to terminate was 'dissociated' from any complaint or inquiry made by the applicant. (citation omitted) 19. There was no doubt that the decision to terminate the applicant's employment was taken by Mr McMahon. It was put to Mr McMahon in cross examination that if the applicant complained about

Mr Chapman, Mr McMahon would not have the applicant in his business. Mr McMahon answered: * Well, that's a ridiculous notion. I mean, I desperately am in need of chefs, they are hard to find; it was one of the more disappointing days that I had on 15 August when I arrived at the business and found the other things. We are desperately short of chefs and nurses in our industry. I had had reasonable feedback from this particular chef over the previous four years and I did not want to lose a chef.[333] 20. It was put to Mr McMahon that he had manufactured a redundancy for the applicant. Mr McMahon said he disagreed with that proposition "absolutely". [334] 21. Mr McMahon accepted in oral evidence that the applicant was entitled to complain about his reduced working hours and was entitled to have no adverse action taken against him by reason of the complaint. Mr McMahon said: * I never took any action against him with respect to the complaint. But it wasn't a complaint. It was a diatribe against the managers. And I do have an issue with the way he carried on.[335] 22. Mr McMahon also said in relation to the applicant and the meeting on 12 August 2011: * he'd just exploded in a most unseemly manner.[336] 23. It was put to Mr McMahon that he had made up his mind on

16 August 2011 that the applicant had to go and the gathering of written complaints about the applicant's bullying was just window dressing or a charade. Mr McMahon said in relation to various ways this was put that the allegation was "wrong", "we will agree to disagree" and "that is dead incorrect"[337]. Mr McMahon denied that he had exaggerated the seriousness of the bullying allegations and said the suggestion of exaggeration was "very objectionable"[338]. 24. The reasons for the applicant's termination that were given in

Mr McMahon's letter dated 25 August 2011 were explained as follows: * I confirm that I have reread the written statements about your conduct and written down the corroborated evidence. That is, the evidence about which there is more than one person writing about an event or a sequence of events. Using this method I find the following: * 1. You received clear training about what constitutes bullying and the consequences of such behaviour. * 2. That you have been seriously intimadatory (sic) to many of the female staff working in the kitchen. I find cases of verbal and physical intimidation against you. I also find periods of time when you refused to talk to other staff for lengthy periods of time. * 3. I find that you did alter job descriptions of kitchen staff without seeking management approval. * 4. I find that you did abuse your manager repeatedly by calling him a racist and a liar. * 5. I also find your intimadatory (sic) behaviour and abuse towards your manager demonstrates a pattern of such behaviour towards others. * 6. I have also viewed the false written documents signed by yourself in respect of at least 2 incidents. * In our view the conduct that you have carried on with amounts to serious misconduct as defined in the Fair Work Act. * For these reasons I have decided to terminate your employment at Greenwood Manor. I will ask Lyndal to finalise your pay directly on the next pay period. 25. The applicant argued that the reasons for termination set out in the letter dated 25 August 2011 were not the real reasons for the applicant's termination. The applicant argued that his complaint about the reduction in his hours caused the respondent to do a U-turn, from wanting the applicant to continue working at Greenwood Manor, albeit with reduced hours, to wanting the applicant to leave entirely. 26. The applicant emphasised that the respondent had been satisfied with his work performance up to 12 August 2011, and the only thing that changed on that date is that the applicant complained about his reduced hours. In particular, the applicant noted that Mr McMahon's letter dated 16 August 2011 referred to "the events of last Friday". The applicant said the relevant event was the applicant's complaint about his reduced working hours. 27. To say that Mr McMahon meant the applicant's complaint about reduced working hours when he said "the events of last Friday" is disingenuous. The "events of last Friday", as Mr McMahon described them in his letter of 25 August 2011, were: * 4. I find that you did abuse your manager repeatedly by calling him a racist and a liar. * 5. I also find your intimadatory (sic) behaviour and abuse towards your manager demonstrates a pattern of such behaviour towards others. 28. Mr McMahon described the events of 12 August 2011 in his letter dated 16 August 2011 in the following terms: * You are probably aware that I was on holidays for the bulk of last week. When I returned to duty on Monday, I received a report from Amanda about the events of last Friday. Let me comment upon those events first: * 1. It is alleged that you verbally assaulted one of your managers in a most violent way. * 2. Among other matters, it is alleged that you accused Neville of being "a racist" and "a liar" on numerous occasions in front of witnesses. * 3. It is alleged that you were extremely aggressive. * You at least apologised to Amanda for some of your behaviour. I must say that I was extremely disappointed by this report of your poor behaviour. You have possibly left yourself open to defamation and an anticipated violence order to be taken out against you. However, it will not be up to me as to whether such action is taken against you. 29. In Mr McMahon's letter dated 22 August 2011, he referred to the events of 12 August 2011 in the following terms: * 2. Bullying with respect to your supervisors * In this area I want specific reasons as to why you called your Manager "a rascist" (sic), "always been a rascist" (sic), "just a complete rascist" (sic) etc. * I also want you to explain why you called your Manager a "liar" / "complete liar". * I also want you to explain why you felt a need to try and physically intimidate your Managers. I also want you to explain why you felt the need to be extremely aggressive. 30. In none of Mr McMahon's written statements about the events of

12 August 2011 did he refer to the applicant's complaint about his reduced working hours. I do not accept the applicant's contention that, when Mr McMahon referred to "the events of last Friday", he meant the applicant's complaint about his reduced working hours. Having seen Mr McMahon give evidence, I consider that he was referring to what he understood to be a serious verbal assault on his two most senior staff. The fact that "the events of last Friday" might technically have included an implicit complaint about the reduction in the applicant's working hours does not mean that Mr McMahon saw the complaint as a significant part of the exchange between the applicant and Mr Chapman and Ms Muir on 12 August 2011. 31. The applicant argued that the "investigation" by Mr McMahon about the alleged bullying by the applicant was a charade. The applicant argued that Mr McMahon had solicited complaints about bullying from staff members to accumulate evidence to justify dismissal. The applicant relied upon Howard v Pilkington (Australia) Ltd [2008] VSC 491 at [139] where Judd J said: * In my view Pilkington cannot avoid the consequence of their full knowledge of the alleged breaches by explaining their conduct as part of an investigation. A genuine investigation may excuse an employer from acting promptly to dismiss an employee if the investigation was necessary to properly inform the employer of the true character or extent of the employee's conduct. That is not this case. In my view the investigation was a managed process, designed to accumulate material to justify Mr Howard's early termination. Mr Kruger's written interrogation of Mr Howard was demonstrated to be a charade, designed to justify his dismissal for failure to co-operate. This is no doubt why Pilkington did not rely upon Mr Howard's responses as a justification. 32. The applicant argued that Mr McMahon's evidence about how the investigation came about was unconvincing. That evidence was primarily the following: * You then went back to Ms Muir by phone or in person?---No, the next event was that the lady at the front desk who also is the assistant activities coordinator, came up and spoke to me and asked me to come and see her privately which I did. I dealt with the resident first and then she came and discussed things with me privately. She said that I needed to know some further facts about what had been going on in the facility in the previous weeks and months and I said, "Okay, no problem", so I went and had those discussions and she alluded to the fact that the staff in the kitchen were being the subject of bullying and had been for some months, that she had observed Nish yelling abuse at one of the kitchen-hands and standing over her with her back and she's crying and into the kitchen. She had observed quite a number of other things and she went through a list of those with me, I - yes. And I was genuinely appalled because I was greatly concerned about the residents at the time, we had to ensure their meals. At the same time, we have to ensure the safety of our staff and it was then that I knew that there was an issue running in the facility that needed a little more examination.

• And that was coincidence as far as you know that she happened to approach you on the morning of 15 August?---No, it wasn't a coincidence.

• Well, how do you know it was not a coincidence?---Because what she said to me was that it had been all over the facility about the applicant's aggression and nastiness to the managing staff on the Friday afternoon. It had been overheard by a number of staff and spread through the staff and residents and that the kitchen ladies felt that they could now speak out about a matter which up to now they had kept private but once the attack was made on the managers they felt they could come forward, so it was no coincidence that it happened to be that Monday morning that she pulled me aside.

• And I suggest to you what happened is you went looking for complaints, sir?---Well, that suggestion would be dead wrong. I had no more interest in getting rid of a chef that was rolling along that endangered the resident meal quality than flying to the moon. They are not easy to come by.

• Management actively solicited complaints in the week starting 15 August 2011. That's what happened?---They - after I got that - had that discussion with the activities deputy who also helps out on the front desk from 9 til 10.30, I then asked her, I said, "I'm not interested in accusations being made about any staff member unless those accusations are put in writing and the people come to see me about them", and from that time on we started to get what turned out to be quite an avalanche of people coming to see me. If they couldn't speak English appropriately or they returned these written documents which I then spoke to those staff members about. [339]

33. Having seen Mr McMahon and the other witnesses giving evidence, I do not find Mr McMahon's evidence on this point unconvincing. I consider it to be plausible that word of a heated disagreement between the chef and senior managers would quickly circulate around a 46 bed aged care facility. I also consider it to be plausible that, once a dispute of that nature had become known, people would feel free to voice their own concerns about anyone who was perceived to be a transgressor.
34. The written complaints that were provided to Mr McMahon are contained in exhibit 5. There was a dispute as to whether the allegations contained in the written complaints were true. The respondent did not seek to prove the truth of the written complaints. More particularly, the respondent did not call the writers of the various written complaints. However, it was not disputed that Mr McMahon received the written complaints from staff. To the extent that it was put to Mr McMahon that his investigation was a charade, it was suggested to Mr McMahon that he did not consider the written complaints to be true.
35. However, I find that Mr McMahon did consider the written complaints to be true. He appeared to be genuinely concerned in the witness box about the effect on staff and residents of what he understood to be the applicant's behaviour. For present purposes, whether the written complaints were actually true is irrelevant. I make no finding either away on that issue.
36. Having said that, some of the more concerning complaints about the applicant were as follows:

1. in relation to the milk crates, the applicant became hostile towards a kitchen hand and "came across like a stand over person"; 2. the applicant continued with the same arguments about the milk crates for three weeks and made the kitchen hand feel that she was being bullied into doing something she was not physically capable of;

1. the applicant was observed standing in the personal space directly behind a kitchen hand who was working at the bench and yelling at her words to the effect that he was the chef and she was his assistant;

1. the applicant's yelling could be heard from the other side of the dining room; 2. he continued to yell at the observer, after being asked not to, saying the kitchen hand was not doing her job to his standard and she does not listen; 3. the applicant gave staff "the silent treatment" and did not permit staff to speak to each other when he was in the kitchen; 4. when a staff member said "Good morning" to him, he said, "Never say good morning to me again" and words to the effect that he did not like the way the staff member smiled; 5. the applicant engaged in aggressive, hostile and combative behaviours, particularly when asked to change meals due to a sudden change in a resident's health and dietary needs; 6. staff were too intimidated by the applicant to ask for changed meals for residents; 7. the applicant said a resident would have to wait 40 minutes for a boiled egg; 8. when asked to give priority to a particular resident's meal for medical reasons, the applicant said, "They will get it when I'm good and ready.";

1. the applicant left the oven and stove dirty for the weekend cook, even though the applicant had signed that he had cleaned them; and

1. the applicant left the Wednesday milk delivery to be arranged in date order by the weekend chef.
2. In addition, there were also the matters of:

1. the applicant's verbal abuse of Mr Chapman, which has been discussed extensively above; 2. what Mr McMahon described as "the alteration of job descriptions"; and

1. the allegation of falsifying documents.
2. The allegation of "the alteration of job descriptions" concerned the applicant requiring kitchen hands to rotate milk crates. As discussed above, I accept that the applicant did, at one point, direct the kitchen hands to rotate milk crates and I also accept that he had no authority to do so.
3. The falsifying documents issue concerned the allegation that the applicant signed a record to indicate he had cleaned the oven but he in fact left it dirty for the weekend chef. The applicant put to Mr McMahon that he had knowingly exaggerated the allegation of falsifying documents. Mr McMahon denied that. He explained that an aged care accreditation visit could occur any day of the week. The applicant put to Mr McMahon that whether an oven was clean or not was something on which reasonable minds might differ. Mr McMahon said it was far more reasonable to clean the oven in accordance with the schedules. He said the issue of oven cleaning may seem small to the people in the court room, but if paper trails are not attended to properly, the accreditation agency can put an aged care facility into sanction mode, and the facility will star in the next day's newspapers[340]. That evidence was not challenged and I accept it. I also accept that Mr McMahon believed that the applicant had failed to clean the oven, contrary to the requirements of his position, and had falsified the records relating to this.
4. Taking into account all of the evidence in this matter, I do not accept that Mr McMahon dismissed the applicant because, or partly because, he complained about the reduction in his working hours. I consider that the implicit complaint made on 12 August 2011 and the express, written complaint made on 16 August 2011 were completely overshadowed by the applicant's conduct on 12 August 2011 towards Mr Chapman, Mr McMahon's perception of the applicant's conduct towards other staff and the applicant's failure to properly perform certain aspects of his duties.
5. I do not consider that the applicant's complaint was even a minor, subsidiary or subconscious reason for Mr McMahon terminating the applicant's employment. It is possible to discern a complaint in the applicant's meeting with Mr Chapman on 12 August 2011 and there was clearly a complaint in the applicant's letter dated 16 August 2011. However, the fact of the complaint was completely overwhelmed by the other circumstances of the case with the result that the complaint itself became so trifling as to be utterly irrelevant.
6. Mr McMahon was not shaken in his evidence about these matters. He categorically denied dismissing the applicant because of his complaint. Mr McMahon gave his evidence in a forthright and convincing manner. I accept his evidence.
7. That being so, the adverse action claim must be dismissed.

1. The effect of these reasons is that the respondent will be liable to a penalty. The respondent sought a further hearing on penalty in the event that the court found that any of the claims were established. Consequently, I will hear the parties on the question of penalty, and on the form of any orders that should be made at this point.

I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of Riley FM

[324] Exhibit NR-7 to the affidavit of Nishamal Ratnayake sworn 10 February 2012.

[325] Exhibit NR-4 to the affidavit of Nishamal Ratnayake sworn 10 February 2012.

[327] Exhibit NR-8 to the affidavit of Nishamal Ratnayake sworn 10 February 2012.

[328] Exhibit NR-12 to the affidavit of Nishamal Ratnayake sworn 10 February 2012.

[330] Rankin v Marine Power International Pty Ltd [2001] VSC 150 at [250] per Gillard J.

[331] Labour Law, Fifth Edition, Creighton and Stewart, Federation Press, 2010 at [18.26].

[332] The High Court is currently reserved in an appeal from this decision. Neither party considered that it was necessary or desirable for the decision in the present matter to await the outcome of the appeal.

[335] Transcript, page 123 lines 41 to 43

[339] Transcript, page 115, line 37 to page 116 line 33.