Fair Work Act 2009

s.394 - Unfair dismissal

Application for relief from unfair dismissal - whether dismissal was harsh, unjust or unreasonable - not satisfied key reason for dismissal a valid reason - satisfied there is a valid reason for dismissal - dismissal disproportionate response to the misconduct in all the circumstances - dismissal unjust and harsh - reinstatement ordered with an order for restoration of lost pay with deductions for misconduct.

[1] This is an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Russell Wakefield (the Applicant) was dismissed on 12 December 2018 from his employment with Sunraysia Institute of TAFE Pty Ltd (the Respondent).[1]

[2] The matter was heard before me in Mildura on 1 May 2019. The Applicant was represented by Mr McIver from the Australian Education Union. Mr Powles was given permission to appear for the Respondent pursuant to s. 596 (2) (a). With the agreement of the parties, the matter proceeded by way of hearing rather than determinative conference.

[3] The Applicant gave evidence on his own behalf. Evidence for the Respondent was provided by Ms Shauna Picken, Manager, HR Services, Mr Geoffrey Dea, Chief Executive Officer and Mr Robin Kuhne, General Manager.

[4] The matter was also listed for hearing on 28 June 2019, where the parties were provided an opportunity to make final submissions.

[5] The Applicant was employed by the Respondent as a teacher between 21 August 2017 and 12 December 2018. The Respondent dismissed the Applicant for alleged serious misconduct.[2] The Respondent asserts that it was entitled to dismiss the Applicant summarily, however decided to pay the Applicant four weeks' pay in lieu of notice. The serious misconduct alleged was that the Applicant had used the name of a local farmer, Mr O'Day, when he was explaining to his students, by way of example, an event that had occurred some years before (the O'Day incident). In summary, the Applicant's evidence is that, Mr O'Day was spraying a herbicide known as 24D in an adjacent paddock to where the Applicant and his staff were working. The Applicant's account of the O'Day incident was to the effect that the herbicide spray had drifted onto his employees resulting in one of his staff having a blood nose and another feeling nauseous. The O'Day incident is described in more detail later in the decision. In the termination letter, the Mr Kuhne stated, "Your account of the incident got back to Mr O'Day and he was very upset that this had been shared."[3] The termination letter also raised concerns about tardiness in arriving at scheduled training sessions and refers to a warning letter sent to the Applicant in March 2018 as a result of the Applicant sending an email from his SuniTAFE account that dealt with a personal issue with a previous employer, in breach of the Respondent's email policy.

[6] While the letter shows that the Respondent had concerns about issues other than the O'Day incident, it is apparent that the naming of Mr O'Day in a training session was the central concern of the Respondent. This is reflected in the following paragraph from the termination letter:

"Russell, the issues relating to tardiness and how you run your training delivery is of concern, however, using the name of an individual in a training environment demonstrates poor judgement and lack of professionalism which has a serious implication to the reputation of SuniTAFE. This key issue is what concerns SuniTAFE greatly and is viewed as serious misconduct."[4]

[7] The letter of dismissal stated that while there was no requirement to pay the Applicant notice, as the Respondent viewed the conduct (regarding the naming of Mr O'Day) as serious misconduct, that they would pay the Applicant four weeks in lieu of notice given the closeness of the dismissal to the Christmas holiday period.

[8] The Applicant submits that the dismissal was unfair. The primary remedy sought by the Applicant is reinstatement and financial reimbursement for loss of income.[5]

[9] The Respondent submitted that in all the circumstances, the Fair Work Commission (the Commission) should find that the Applicant engaged in serious misconduct and that the dismissal was not unfair. In the event that the Commission found the dismissal was unfair, reinstatement is strongly opposed by the Respondent and they submit any financial compensation awarded should be subject to significant deductions.

[10] Under the Act, a person is protected from unfair dismissal if:

"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."

[11] I find that the Applicant is a person protected from unfair dismissal as he had completed the minimum employment period and his earnings were less than the high-income threshold. The Applicant was also covered by the Victorian TAFE Teaching Staff Agreement 2018.

[12] Unfair dismissal is governed by Part 3-2 of the Act. Section 385 of the Act sets out what constitutes an unfair dismissal:

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."

[13] With regard to s.385, it is not in dispute that the Applicant was dismissed by the Respondent in line with the meaning of dismissal outlined in s.386(a) of the Act.

[14] With regard to s.385(c) of the Act, the Respondent is not a small business. The Small Business Fair Dismissal Code does not apply in this matter.

[15] With regard to s.385(d) there was no suggestion that the Applicant's dismissal was a case of genuine redundancy. Section 385(d) does not apply in this matter.

[16] The only matter for consideration is whether the dismissal was harsh, unjust or unreasonable (s.385(b) of the Act).

[17] Section 387 of the Act provides as follows:

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."

[18] The Applicant commenced employment with the Respondent in August 2017. At the time of his dismissal, the Applicant was a level 3.3 teacher under the Victorian TAFE Teaching Staff Agreement 2018. The salary level for this position at the time the Applicant was dismissed was $92,236.

[19] The Applicant was a vocational education teacher who was employed as someone who had extensive experience in the industries in which he taught.[6] The Applicant holds various certificate and diploma level qualifications in areas such as irrigation and production horticulture and a Diploma in Vocational Education and Training.[7]

[20] During the hearing, the Applicant agreed with the general proposition that he worked at "a high level."[8] The Applicant agreed he was required to show judgement, initiative and work independently.[9]

[21] The Applicant stated that his performance was satisfactory.[10] The evidence of the Applicant is that there were no performance reviews conducted during his employment with the Respondent. While the letter of appointment[11] referred to a minimum of two reviews that were to be completed during the Applicant's probationary period, the Applicant's uncontradicted evidence is that none were undertaken. Nor was the Applicant provided with the mentoring that Mr Dea indicated he would be provided with when he was appointed.[12]

[22] The Applicant agreed in evidence that in general terms the features of his job meant that:

• The Respondent was required to have significant levels of trust in the Applicant in the exercise of his role;[13]

• That the role required him to exercise his judgment at a high level with initiative;[14] and

• In the event that he exercised that judgment poorly, this could have the capacity to damage the organisation.[15]

[23] It is not in contest that the only direct evidence on this matter, referred to by the parties as "the O'Day incident," is the evidence provided by the Applicant.[16]

[24] In summary the facts pertaining to the O'Day incident are as follows:

• The Applicant was providing training to students in Auschem on 23 October 2018. Ms Annette Lambert, the nominated contact for the Millewa-Carwarp Landcare Group contacted the Applicant to arrange the training.[17]

• The Applicant as a part of his teaching, was telling the students that chemicals affect people differently.

• The Applicant provided an example of a local farmer, Mr James O'Day, who had been spraying a herbicide known as "24D" on his land when the Applicant had two employees working nearby.

[25] The Applicant's evidence as to what he told the students on that day is as follows:

"On the first day of training, I told the students that different chemicals affect people differently. I provided an example of a local farmer, James O'Day, had been spraying a herbicide on his land (2,4-Dichlorophenoxyacetic acid (known as "2,4-D" or 24D)) when I and some employees of mine were working nearby. I told the students that my employees had been affected differently by the 24D. I said words to the effect that one employee got a blood nose, another got a headache and another felt nauseous. In my experience as a teacher of students in vocational education settings that they learn best when they are provided with real life examples by me and other students."[18]

[26] The event the Applicant was describing had in fact occurred more than 20 years earlier when the Applicant was not working for the Respondent.

[27] The Applicant elaborated as to the events that occurred 20 years ago during the hearing:

"Yes? -He was spraying. I had two guys working with me. I could smell the smell, and I said to the other guys, "How are you feeling?" and one bloke was wiping his nose, and his nose was bleeding. Could've been the night before, could have been anything. The other guy was nauseous. And I said to him I said, "Well what do you want to do? Do you want to shift to another patch?" and they said, "We've got to get this finished", you know, being good employees. So I said - I didn't know who was over there spraying. I knew whose place it was. At the time James O'Day was leasing the place, he was share farming, so I rang up the land owner, he gave me James O'Day's number. I rang James O'Day up and I said to him, I said, "What are you spraying over there, mate?" and he said "I'm just putting out a bit of weed spray". I said, "Yes, I can tell that". I said, "I've got a couple of guys over here, one is crook, one is feeling nauseous, the other guy, his nose has just started dripping", and I said, "I'm not feeling real good". And I said to him, I said, "Is there anywhere else you can spray?", because I said, "We're actually working here". And it was on a weekend. But part of the chemical uses is you've got to be - let all stakeholders know around you if you're spraying, and I asked him if he could shift somewhere else, and he said, "Yes, no worries, I can shift to another paddock so that it's not blowing your way". And that was the conversation."[19]

[28] The Applicant considered that a real-life, practical example would assist the students' comprehension of the subject matter of the course.[20]In that context, the Applicant says that he did not use Mr O'Day an example in a derogatory way.[21]

[29] On cross examination, the Applicant was asked why he used Mr O'Day's name. His answer was:

"The prime reason was because some of these young people would know him,

and go, "Gee, it can happen to him", and he's one of these farmers out here

that, you know, has been farming for years."[22]

[30] It seems that a relative of Mr O'Day was apparently attending the course and that person contacted Mr O'Day at the end of the day and told him about the Applicant mentioning his name during the course and the example that was given. Later that evening, Mr O'Day called the Applicant. The Applicant's evidence as to what happened is as follows:

"Later that evening I received a call from Mr O'Day. Mr O'Day was angry that I had mentioned his name. I told Mr O'Day that I had used his name in the context of explaining that different chemicals affect people differently. I asked Mr O'Day, "Do you remember that day when I called and asked what you were spraying?" Mr O'Day said that he did remember. I said, "You said that you would move to another paddock". Mr O'Day said that he remembered. I said to Mr O'Day that I was trying to put the spraying of chemicals and their effects in a context and that 24D affects people differently. Mr O'Day said words to the effect that he had looked up 24D and that it doesn't give people a blood nose. He also said that he didn't like me mentioning his name.

I apologised to Mr O'Day and said words to the effect that I should not have used his name. I said that I would apologise to the class the next day and that I would tell the class that Mr O'Day had not done anything wrong. I asked Mr O'Day if he would be happy with that. Mr O'Day said "yes". We then spoke about the drought and his crops and sheep.

The next morning I apologised to the class and stated that Mr O'Day had not done anything wrong. Ms Lambert stated words to the effect that "this is where it all ends and nothing would go further". I took it from this conversation that Ms Lambert did not intend to take the issue further."[23]

[31] I note that Ms Lambert and her role in the matter will become clear later in the decision.

[32] The Respondent focussed on the concession by the Applicant that Mr O'Day was upset,[24] and that he did not like the Applicant using his name. The Respondent also focused on the fact that Mr O'Day said he "looked it up" and 24D did not cause nose bleeds, and that the Applicant conceded that Mr O'Day made these comments in an attempt to defend himself 20 years later.

[33] The Respondent notes that the Applicant concedes that he said after he made the apology to the class, that he also said, "but it did happen."[25] The Applicant disagreed that such a statement would undermine or negate the apology, and that he did not know whether Mr O'Day would have been still satisfied with the apology.[26]

[34] The Respondent claims that there are numerous discrepancies within the Applicant's evidence relating to the O'Day incident. In particular, the Respondent submits that "what should be objectively inferred from the surrounding evidence" is that the Applicant said that he used Mr O'Day's name as a "slip of the tongue," and he concedes that he could have referred to the "farmer next door."[27]

[35] However, the Applicant's evidence was also that he used Mr O'Day's name as he was well known to the participants and they would think, "Gee it could happen to him," and he is one of these farmers out there that has been farming for years" and that even "a bit of a stalwart ...[can] make mistakes."[28]

[36] The following exchange during cross examination provides some context for the Applicant mentioning Mr O'Day by name:

"MR POWLES: So to fulfil that purpose you didn't need to say that it was James O'Day, did you? -Generally as I said to you I use myself as the example but because I was in that environment at the time it was just a - I couldn't say it was a slip of the tongue. I thought well, a lot of these people out here will know him, and so in the context of explaining that he'd done this it wasn't derogatory. It was just saying that anyone - it can happen to anyone and chemicals have effects on different people and that was when the guy raised the thing about he opens a can of this particular chemical and he gets a headache, then he gets a migraine.

So you knew that people would know James O'Day? -Yes, in that area. Yes. Yes.

But really it didn't - to have the same effect, the story, you didn't need to say who it was? -No, I could have said the farmer next door and that was what I'd stated to James O'Day when I rang him up.

And so is there a reason why you did use his name? -The prime reason was because some of these young people would know him, and go, "Gee, it can happen to him", and he's one of these farmers out here that, you know, has been farming for years.

And you intentionally used his name because people would know him? -I used his name because, yes, these people could understand that someone that's, you know, a bit of a stalwart out there will make mistakes. And as I said to you as part of the AusChem the idea is that you're supposed to let stakeholders, farms around, know that you're actually spraying, which is one of those things that he hasn't done. But at the time it wasn't implemented as harsh as it is now."[29]

[37] The Respondent submits that the Applicant's claim that the comments were not derogatory sits in conflict with his explanation that Mr O'Day had done the wrong thing and that his actions were a mistake which had caused significant physical harm to his employees.[30]

[38] It is also submitted by the Respondent, that the Applicant's evidence that he told Mr O'Day about the nosebleed during the phone call 20 years ago does not accord with his witness statement.

[39] A part of the Applicant's response to Ms Picken, the HR Manager, at the time of the inquiry in relation to the O'Day incident, was that he needed more training about the difference between working in the public sector and the private sector, but then later indicated that it was probably not appropriate to use someone's name in the private sector either. The Applicant stated that he had learnt from the experience and said he could benefit from additional training about the expectations of his conduct by the Respondent, beyond the induction process that was offered.[31] Overall, it was apparent from the evidence that the Applicant was unsure about the Respondent's expectations of him in regards to the O'Day incident.

[40] The Respondent's submissions on the point conclude with the following three paragraphs:

"Ultimately, Mr Wakefield contended that it was SuniTAFE's responsibility to explain to him, in advance of any incident, that he was not to name individual members of the community during training,[32] preferably through its induction system.[33] The effect of this contention, was for Mr Wakefield to demonstrate that he did not truly believe he was at fault.[34]

In the light of these discrepancies, it is the Respondent's submission that Mr Wakefield's evidence was entirely self-serving. His various attempts to 'play down' the severity and derogatory nature of his comments about Mr O'Day, as well as Mr Wakefield's assurances that Mr O'Day was satisfied with the apology and the matter was resolved, should not be accepted.

Further, this evidence demonstrates that Mr Wakefield has not appropriately acknowledged any wrong-doing in relation to either the Matthews and Associates email (which resulted in his warning), or the O'Day incident (which resulted in dismissal). In light of this, the Commission should not accept Mr Wakefield's assurances that his lapses in judgement, which each had the potential to damage the interests and reputation of the organisation, would not reoccur."[35]

[41] At the final hearing, the Respondent said the valid reason was , "...about the fact that he was causing - he was making comments to a class that had the capacity to anger community members to the extent that they would call him and demand an apology."[36]

[42] The Applicant submits that the Respondent has not discharged its onus to establish that the Applicant engaged in serious misconduct, that the Respondent did not call various witnesses that were in its camp and that it is open to the Commission to draw Jones v Dunkel[37] inferences in relation to, among other things, the evidence of Mr Beard and the O'Day incident. On this point it is not clear that Mr Beard, another employee of the Respondent who was present at the training,[38] is in the Respondent's camp. The other "various witnesses" said to be in the Respondent's camp were not named. In the circumstances, I have not drawn a Jones v Dunkel inference in relation to any witness.

[43] The Applicant also submits that no objective evidence was led to support the notion that the Respondent could no longer trust the Applicant to uphold its reputation. There is no evidence before the Commission of any damage to the Respondent's reputation. The Applicant describes the mentioning of Mr O'Day's name as an "ill-advised comment," which the Applicant took immediate and effective steps to correct.[39] Further, the Applicant contends that the O'Day incident is not properly characterised as one that relates to misconduct.[40]

[44] Immediately prior to the Applicant's employment with the Respondent, he worked as a trainer and assessor for Matthews and Associates Pty Ltd (Matthews and Associates). This organisation provided TAFE teaching services to the Wodonga institute of TAFE. The Applicant said that he left Mathews and Associates because he believed that they did not pay him bonuses he was owed and did not pay him superannuation.[41] The Applicant says that he has not recovered his employee entitlements from Mathews and Associates.[42] At some point, Wodonga TAFE and Mathews and Associates entered into an arrangement with the Respondent. This is relevant as the Applicant was then involved in the provision of teaching services to Matthews and Associates, but now as an employee of the Respondent.[43]

[45] On the 14 March 2018, while the Applicant was working for the Respondent, Phil Matthews, the director of Matthews and Associates emailed the Applicant at the Applicant's SuniTAFE email address and asked him to advise on the status of certain work and when it would be completed by the Respondent. The Applicant replied to that email, also from his SuniTAFE email account stating that he understood Mr Matthews' concerns and that everything would be done when outstanding amounts owed ("the deed") were paid for work completed. The full text of the email follows:

Could you please advise the current situation and what work has been completed for the above. I note that we are midway through March and all work as promised will need to be completed by the end of April.

If you have any students that you will not complete could you advise us immediately.

I understand your concerns, and everything will be done when outstanding amounts owed ('the deed') for 2015, 2016, 2017 and 2018 are paid for work completed.

I note I am also waiting for a response from Michael to an email sent on 19/02/2018 in relation to licences and competencies!

Which were offers to these students at the time of enrolment to help in their work, and how they are to be completed.

[46] The Respondent submits that the Applicant conceded in evidence that the intention and effect of this email, was that he threatened to withdraw the services of the Respondent to Matthews and Associates, in his capacity as an employee of the Respondent, until such time as his private debt from Matthews and Associates had been paid.[46] Further, that this threat was made in spite of the fact, as acknowledged by the Applicant, that he was under an obligation to the Respondent to complete that work.[47] The Respondent also points out that the Applicant conceded in evidence that this conduct had led to a warning, for reasons relating to poor judgement.[48] and also conceded that the warning related to the fact that his communications reflected poorly on the Respondent.[49]

[47] The Respondent also submits that despite the concessions referred to above the Applicant did not concede that he had done anything wrong by this email exchange, and maintained that he was 'autonomous' in providing the work to Matthews and Associates.[50] He also appeared to maintain that it was his right to threaten to withdraw work from Matthews and Associates, until he was paid.[51]

[48] The Respondent notes that the Applicant also:

"contended that this course of action was 'supported' by SuniTAFE, which was in spite of Mr Wakefield's subsequent other admissions that SuniTAFE was unaware of the conduct until after it had occurred,[52] and that the conduct had ultimately resulted in a formal written warning."[53]

However, "Mr Wakefield maintained that he had learnt from this mistake and that SuniTAFE could trust him in the future not to make similar errors of judgement."[54]

[49] The email policy that the Applicant is said to have not acted in accordance with is not in evidence. The warning letter sent to the Applicant stated that the Respondent's records show that the Applicant had completed an induction which included the Respondent's email policy. The warning letter from Mr Khune indicates that he is mindful that the Applicant may have forgotten or was unclear about the policy. Mr Khune stated during cross examination that there are over 400 policies in existence at the employer.[55] There were arrangements made for the Applicant to complete a "new induction module" to refresh his understanding of the policy. The letter notes that irrespective of the Applicant's familiarity with the policy, that he "had received verbal direction not to behave in that manner."[56] However, the Applicant says he does not recall conversations about the policy.[57] The Applicant was not cross examined and Mr Kuhne gave no evidence on this point.

[50] In any case, the Applicant complied with the direction to complete a training module in relation to the Respondent's policy and code of conduct.[58] The evidence is that the Applicant has not repeated anything like this behaviour subsequent to that time.[59]

[51] The Applicant submits that it is not clear if Matthews and Associates was an approved training provider and it is not clear what "delicate arrangements" were at risk as a consequence of the Applicant's email.[60]. The Applicant submits that to the extent that the Respondent relies upon the March 2018 warning, the conduct was of a disparate nature and the Commission does not have sufficient evidence before it to find that the warning was valid. That is the warning relates to breaches of an email policy that is not in evidence. In any event, the Applicant complied with the direction and, as Mr Kuhne acknowledged in cross examination, there was not a continuing issue relating to the Applicant's use of email.

[52] The termination letter referred to the Applicant's alleged lateness to the training sessions with Landcare (which appears to have been on two occasions) and that he was late to the Select Harvest training. The termination letter refers to information that the Applicant provided as to the reason for lateness, being problems with a car booking one day and the need to pick up a sprayer on another day. The reason given for lateness with Select Harvest was because the students were arriving late and if he arrived on time, he was waiting for them. There is no indication in the termination letter as to whether these explanations were accepted or not by the Respondent. All that is said is that the "issues relating to tardiness and how you run your training delivery is of concern."[61] The rest of the letter focuses on the naming of Mr O'Day. Nor did the Respondent's witnesses provide any evidence on the point. While the Applicant conceded he was late on some occasions, he has provided reasons for such lateness. He was not cross examined on that evidence. I am not satisfied his lateness for some training sessions, given the explanations provided, can be considered a valid reason for dismissal. In any case, the Respondent's submission was ultimately that there was one valid reason for dismissal, which is the O'Day incident and the "other matters" are contextual.[62]

[53] The starting point for the events that lead to the dismissal was a complaint that was made by Ms Lambert. Ms Lambert was the nominated contact for the Millewa-Carwarp Landcare Group. The nature of the complaint was ascertained via a meeting between Mr Khune, Ms Picken, Ms Lambert and her colleague Ms Pryce. That meeting took place on 7 December 2018.[63] The complaint was made some weeks after the training conducted by the Applicant took place. There were a number of concerns that came out of that conversation according to Ms Picken, including the key reason ultimately relied upon for the dismissal, the naming of Mr O'Day.[64]

[54] I note that Ms Picken was unclear in her evidence as to what aspects of that complaint she considered truthful or meritorious. This is reflected in the following exchange on cross examination:

"Yes, and you don't know if any of those matters are true, it's just - it's a complaint that you received? -Any of the matters that are true? Sorry, I don't understand - - -

Sorry, any of the matters that were raised by Ms Lambert and Ms Price? -I don't know if the matters are true.

Yes, but whether there's any merit to their concerns? -Probably not in all aspects, but in the key aspects I would say we were convinced that there was truth to them."[65]

[55] The evidence of Ms Picken most clearly sets out the process followed after the meeting with Ms Lambert on 7 December 2018:

• On 10 December, the Applicant was sent an email requesting him to attend a meeting on 11 December 2018 to discuss concerns relating to the recent training he provided for Land Care.[66]

• The purpose of the meeting was to allow the Applicant to put his version of events.
• The Applicant was afforded the opportunity to bring a support person.
• At the meeting, the Applicant was afforded the opportunity to respond to the details of the complaint put to him at the meeting.

• After the meeting, Ms Picken sent to the Applicant and other attendees a copy of her notes of the meeting that outlined the list of concerns and the Applicant's responses.[67]

• Ms Picken states that the purpose of this was to provide any further opportunity for the Applicant to respond to the matters raised.

[56] Ms Picken followed up with the Applicant by phone a couple of hours after sending the email,[68] and the Applicant provided further commentary for his response to matters raised. According to Ms Picken, the Applicant's response was minimal. During the phone call, Ms Picken discussed with the Applicant that "Mr Khune and Mr Dea were very concerned about the comments made regarding the prominent local farmer and that particular matter is regarded as a disciplinary matter and we would need to talk to him about that the following morning."[69] An email confirming the meeting,[70] was sent inviting the Applicant to a meeting the following morning at 10.30am. The email confirmed that "we are especially concerned with the comments made about Mr O'Day and as such feel that this is a disciplinary matter" and the purpose of the meeting was "to discuss this matter further."[71]

[57] At the meeting on 11 December 2018, Ms Picken highlighted the concern that the Applicant had used the name of a local farmer in a training session and gave the Applicant a further opportunity to provide further information.

[58] Ms Picken's evidence as to what then transpired is as follows:

"Mr Wakefield admitted that he did use the name of the local prominent farmer as an example of how some people are affected by chemicals, that the farmer had called him to request an apology, which was provided and that Mr Wakefield considered the matter resolved. Mr Wakefield agreed the use of the farmer's name was unprofessional. Mr Wakefield did not supply any further information that substantially changed his version of events.

As there was no new information to consider, Mr Wakefield was advised that his employment was terminated effective immediately for serious misconduct as SuniTAFE could no longer trust him to uphold the reputation of SuniTAFE. As the timing of this decision was close to the Christmas holidays SuniTAFE provided Mr Wakefield with four weeks' pay ex-gratia in addition to the pay out of his standard entitlements.

The meeting concluded and Mr Wakefield was escorted back to his desk by his Manager, Terry Sparrow to collect his personal effects.

I drafted a formal letter of termination on Mr Kuhne's behalf based on the conversation at the meeting and emailed it to Mr Wakefield's personal email address later that day."[72]

[59] As mentioned earlier, the termination letter[73] refers to the warning letter from March 2018 about the use of emails and makes a general reference to the complaint of the client including tardiness at arriving at a "scheduled training session." There is also reference to negative feedback from training given to Select Harvest and concerns about lateness to training sessions.

[60] Importantly, the termination letter includes the following:

"Russell, the issues relating to tardiness and how you run your training delivery is of concern, however, using the name of an individual in a training environment demonstrates poor judgement and lack of professionalism which has a serious implication to the reputation of SuniTAFE. This key issue is what concerns SuniTAFE greatly and is viewed as serious misconduct."[74]

[61] Since the dismissal, the Applicant has been successful in obtaining casual employment as a truck driver and working on farms in the area.[75] He has secured worked at a transport company, Philips transport from mid-January 2019 until about the end of March 2019. It appears he was paid $5,277.47 during that period.[76] The Applicant remains a casual employee of that company but had not been offered any work since the end of March until at least the date of the hearing on 1 May. The Applicant has also secured work at a winery as an Operations Manager where he has worked from 25 February 2019 until the time of the substantive hearing[77] (1 May 2019). The Applicant's rate of pay at the winery is approximately $38 per hour. Based on a 38 hour week, this would annualise to approximately $75,000 per annum, which is somewhat less than the $92,000 per annum the Applicant was earning with the Respondent when he was dismissed. I note that in the first monthly pay period the Applicant worked 195 hours which increased his earnings for that month, but that his earnings in April reflected a 38 hour week.[78]

Was the dismissal harsh, unjust or unreasonable?

[62] The ambit of the words "harsh, unjust or unreasonable" in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd[79] 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."[80]

[63] Ultimately, however, it is the matters set out in s.387 of the Act to which regard must be had.

Section 387(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)

[64] There must have been a valid reason for the dismissal related to the Applicant's capacity or conduct, although it need not be the reason given to the Applicant at the time of the dismissal.[81] To be a valid reason it must be "sound defensible or well founded." The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the Applicant was guilty of the conduct. Where serious misconduct is alleged the test for a valid reason for dismissal does not change. The test remains whether the reason was "sound, defensible or well founded".[82] A valid reason for dismissal does not require conduct amounting to a repudiation of the contract of employment.[83] The Commission must make a finding as to whether the conduct occurred based on the evidence before it.[84]

[65] It is apparent from the evidence the Respondent focused on, that the O'Day incident was the reason for dismissal. It is clear from the termination letter that the other matters raised were "of concern." However, the O'Day incident was the central focus. It is the only issue mentioned in the evidence of the Mr Dea. This is important as Mr Dea made the ultimate decision to dismiss the Applicant. The Respondent confirmed at the final hearing, its primary submission is that the O'Day incident is a valid reason for the termination, and that the context of that decision was made taking into account a whole range of other matters, including a previous disciplinary warning and performance concerns that were put to the Applicant during the disciplinary meeting as well.[85]

[66] All aspects of the alleged conduct and performance of the Applicant need to be considered when considering if there was a valid reason or reasons for the dismissal. It is convenient to start with a consideration of the O'Day incident.

[67] The evidence in respect to the event surrounding the "naming" of the farmer is fairly straightforward. The Applicant conceded from the outset that he referred to Mr O'Day by name at the training course. His reason for doing so was that he wanted to relate a real-life practical example. The evidence of the Applicant is that Mr O'Day would be known to the participants and that they would understand that even someone of his experience, "a bit of a stalwart" could make mistakes.[86] The Applicant did say that after he had named the farmer, he thought he probably should not have done so. The reasons that the Respondent witnesses gave as to why Mr O'Day should not have been named, are related to the fact Mr O'Day is by all accounts a prominent farmer and a well-respected in the community.

[68] In any case, once the Applicant had mentioned Mr O'Day, he thought the "horse has bolted" and continued with the class.[87] He conceded in the subsequent discussions with the Respondent that he should not have mentioned his name and that to do so was unprofessional. However, he felt the matter was resolved as a result of Mr O'Day calling him, the two men having a discussion, the Applicant apologising to him for mentioning his name and following up with his promised apology to the class the next day.

[69] The Applicant's evidence as to the content of the conversation with Mr O'Day was consistent and compelling and there was no evidence contradicting this. Nor is there any evidence contradicting the Applicant's recalling of the events of 20 years ago, of which the key elements are:

• That Mr O'Day was spraying 24D in the vicinity of where the Applicant was working with his employees;

• That Mr O'Day did not notify the neighbouring properties but should have done so;

• That there were adverse health effects on the Applicant and his employees at the time including nausea and a blood nose; and

• That the Applicant called up Mr O'Day, informed him of the situation and Mr O'Day promptly moved the location of his spraying having become aware of the predicament of the Applicant and his employees.

[70] The Respondent seeks to cast doubt on the reliability of the Applicant's evidence. I do not accept the submissions of the Respondent to the effect that the Applicant's evidence contained discrepancies. He provided a cogent explanation as to why he used the name of Mr O'day. However, he questioned in his own mind the wisdom of doing so. While the Applicant has conceded he should not have used Mr O'Day's name, it is not apparent to me as to why he should not have mentioned Mr O'Day. Essentially, the Applicant has retold an actual event, using the actual name of the person involved. The telling of the story can hardly be said to be derogatory or even defamatory, as the Respondent at one point claimed, when the facts before me demonstrate that the event actually occurred as stated by the Applicant.

[71] The Respondent claims that the Applicant's evidence as to whether he told Mr O'Day when he spoke to him 20 years ago about the employee with the nosebleed, is inconsistent with the Applicant's witness statement. This is erroneous. The Applicant has not referred in his witness statement to telling Mr O'Day about the nosebleed in his recalling of the incident. He was asked in cross examination whether he had told Mr O'Day at the time, 20 years ago. His reply was clear that he had and "that is why he shifted paddocks."[88] This can hardly be described as a discrepancy. It is also not the responsibility of the Applicant to explain why Mr O'Day challenged whether 24D causes nosebleeds during their phone conversation 20 years after the event and not before. This does not demonstrate, as the Respondent contends, a discrepancy in the Applicant's evidence.

[72] The Applicant's statement that he needed more training as to the differences between the private sector and the public sector, but then conceding that it was probably not appropriate to use someone's name in the private sector is, given the context, understandable. In my view, the Applicant is being responsive to the Respondent putting to him that he has done something seriously wrong, but its apparent that the Applicant is not entirely sure what is expected of him.

[73] Overall, the Respondent's submission that the Applicant's evidence was self-serving and tried to "play down" the severity and derogatory nature of his comments about Mr O'Day is not accepted. The Applicant's evidence is not contradicted. His account of what happened both on the day, 20 years ago and what happened during the phone call on the evening Mr O'day contacted him, is not contradicted and I think truthful. The submission that I should not accept the assurances that Mr O'Day was satisfied with the apology and the matter was resolved cannot be accepted. The only evidence before me is that is precisely what occurred, and I have no reason to not believe the Applicant's evidence on the point. The Applicant was a most credible witness and I see no reason to doubt his evidence.

[74] The Respondent focussed on the fact that the Applicant apologised to the class and said that Mr O'Day had done nothing wrong and then say, "but it did happen." The Applicant's uncontested evidence was that there was a requirement to notify neighbouring landowners about the spraying chemicals and that Mr O'Day had not done so. To that extent, the evidence is that Mr O'Day had in fact done something wrong. However, the evidence also makes clear that Mr O'Day did not realise his spray drift was impacting on the Applicant and his employees. When Mr O'Day was told about it by the Applicant, he took evasive action and sprayed in another paddock. In that context, the Applicant was not inconsistent in apologising and saying that Mr O'Day had done nothing wrong but also saying "but it did happen." As the facts are that the events did occur, there is no apparent reason why he should not have made that statement.

[75] One qualification to this finding is the matter of the nosebleed. On the Applicant's own evidence, he appeared to suggest that his employee's nosebleed "could've been the night before, could have been anything."[89] In other words, the spraying of chemicals may or may not have caused the nosebleed. Therefore, to the extent that the Applicant inferred in retelling the story, that the cause of the nosebleed was the spraying of 24D by Mr O'Day, it was ill-advised of him to do so.

[76] Put simply, the Applicant has retold to his class an actual event that occurred in order to underline the importance of following procedure when handling chemicals. In doing so, he mentioned the events that had occurred with respect to Mr O'Day 20 years earlier. It is not apparent why using someone's name as part of the retelling a factual story is misconduct at all, let alone serious misconduct. The Applicant was not to know that Mr O'Day would be upset by him speaking of the event. Nevertheless, the Applicant, when confronted during a phone call from an upset Mr O'Day, a man who by all accounts is a significant member of the Mildura community, takes an entirely sensible and reasonable approach. He apologises directly to Mr O'Day for using his name and tells him he will apologise to the class. The Applicant follows through with his promise. He also makes clear that the events did happen. As it is apparent that they did, I see nothing wrong with him doing so. In his view the matter was resolved. In that context, the Applicant saw no reason to raise the matter with his employer. Ms Lambert told him the matter was resolved.[90]

[77] The complaint of the Respondent, that it was wrong of the Applicant to not raise the matter with his superiors also has to be seen in the context of the clear evidence that the applicant had resolved the matter. There is no evidence that Mr O'Day made any further contact with the Applicant or the Respondent after he had spoken to the Applicant, which is consistent with the claim of the Applicant that the matter was resolved.

[78] Given the circumstances surrounding the O'Day incident, I am not satisfied that there was any real risk of reputational damage to the Respondent. Mr Dea provided evidence that Mr O'Day is successful, well respected, a spokesperson for the industry and that his family and business is enormously well respected.[91] Mr Kuhne gave evidence that the Respondent had been working hard to develop positive relations with their stakeholders and this was why the "poor judgement" of the Applicant was of such concern.[92]

[79] However, in light of the fact the events did occur, there is no evidence of any risk to the reputation of the Respondent as a result of the incident. Mr O'Day received a direct and immediate apology for mentioning his name from the Applicant, whether the apology was warranted or not, and the matter was satisfactorily resolved. There is no evidence as to what the risk of reputational damage was.

[80] In light of the consideration above, I am not satisfied that the conduct of the Applicant surrounding the O'Day incident could be construed as misconduct. Nor am I satisfied in all the circumstances that it is a sound, defensible or well-founded reason. At worst it could be described as ill advised. In all of the circumstances, I am not satisfied that the O'Day incident is a valid reason for dismissal.

Was the Matthews and Associates email sent in March a valid reason for dismissal?

[81] The Respondent did not assert that the Matthews and Associates email constituted a valid reason for dismissal but that it and other matters formed part of the context. The events surrounding the email that the Applicant sent to his former employer, Matthews and Associates have been set out in detail above. The Applicant is said to have breached sections 3.2 and 3.3 of the Respondent's email policy. The Respondent provided no evidence as to what that policy says and did not provide a copy of the policy. In the circumstances, I am not in a position to determine if the sending of the email was a breach of the email policy as as the policy was not in evidence. Nor is there any evidence that the Applicant completed the module on the email policy, other than the claim in the letter[93] that the records demonstrate that the Applicant had undertaken the training.

[82] The warning the Applicant received regarding the email included Mr Kuhne referencing multiple conversations with the Applicant regarding keeping his personal issues seperate from the Respondent's business. The Applicant said he did not recall conversations with Mr Khune about the use of his email,[94] and there was no evidence contradicting this. The Respondent conceded in the warning letter that the Applicant may have forgotten or been unclear about the policy. This would seem a reasonable concession when one of the Respondent's witnesses, Mr Kuhne, conceded that the organisation has over 400 policies.[95]

[83] However, Mr Khune stated in his witness statement that he expressed to the Applicant the fact that he had raised a personal financial issue with Mathews and Associates via his SuniTAFE email was "unprofessional" and "represented a risk to the relationship between SuniTAFE and Matthews and Associates."[96] . That said, one could reasonably infer from the surrounding circumstances that to the extent that the Applicant was sending emails from his work email to an organisation which the Respondent was involved in some sort of contractual relationship, and was threatening to withhold his services to Matthews and Associates, there would be a risk to the relationship between the two organisations. In my view, it is the threatening of the withholding of services to Mathews and Associates by the Applicant, driven by his desire to put pressure on them to pay him money he was allegedly owed, that is most certainly misconduct. It is a misuse of his position with the Respondent to engage in such conduct. In the circumstances, Mr Kuhne was justified in warning him that his performance was below the required standard and stressed his expectation that it not occur again.

[84] I have taken into account that the Applicant did not engage in this behaviour again, having been warned about it back in March 2018. While this is a factor to be taken into account in considering the fairness or otherwise of the dismissal, that does not alter the case that the Applicant engaged in the conduct. I am satisfied that his conduct in sending the email was a misuse of his position and raised the risk of reputational damage with an organisation that his employer was engaged in a contractual relationship with. Such conduct was inconsistent with the Applicant's contract of employment which requires him to, among other things, "provide exceptional customer service to all internal and external stakeholders and to represent the institute professionally at all times."[97] In all of the circumstances, for these reasons I consider the sending of the Matthews and Associates email to be a valid reason for dismissal.

[85] As discussed above, while other concerns such as lateness were raised in the termination letter, the Respondent did not press that these constituted valid reasons for dismissal but rather were part of the context that led to his dismissal. I have dealt with the issue of the Applicant's lateness for some sessions of training above and do not consider that constituted a valid reason for the reasons stated. All of the other matters raised regarding the Applicant's conduct and performance, largely through the complaint of Ms Lambert, were not the subject of any evidence beyond the record of those matters being put to the Applicant and him responding to them. There is no evidence as to whether the Applicant's responses to the complaints were accepted or not by the respondent. Further and as disclosed earlier, Ms Picken was unsure as to whether the complaints were truthful or not. In the circumstances I am not satisfied that any other allegation raised in the proceedings as to the Applicant's performance or conduct constitutes a valid reason for dismissal. The only valid reason for the Applicant's dismissal is the Matthews and Associates email.

387(b) whether the person was notified of that reason and 387 (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[86] Notification of the valid reason to terminate must be given to the employee before the decision to terminate is made,[98] in explicit terms and in plain and clear terms.[99] The requirement on notification is expressed by his honour CJ Wilcox in Gibson v Bosmac Pty Ltd:

"Ordinarily, before being dismissed for reasons related to conduct or performance, an

employee must be made aware of the particular matters that are putting his or her job

at risk and given an adequate opportunity of defence. However, I also pointed out that

the section does not require any particular formality. It is intended to be applied in a

practical commonsense way so as to ensure that the affected employee is treated

[87] The Applicant attended meetings on 11 and 12 December 2018 and provided answers to questions about Ms Lambert's complaint. The Applicant complains that it is not clear from the evidence that the Respondent specifically put to the Applicant, that as a result of his conduct, that it had lost confidence in the capacity of the Applicant to uphold the reputation of the Respondent prior to his dismissal. The proposition was put to Ms Picken who said, "I would say yes, that would have been the tone of the discussion. Yes. Yes."[101] I think that Ms Picken stating that it would have been the tone of the discussion is well short of a recollection that it was actually put. However, it is clear that the Applicant was told that they were concerned that the comments would hurt the Respondent's reputation.[102] It is also clear from the evidence of Ms Picken that the allegations were put to the Applicant and he was afforded the opportunity to respond to the concerns in relation to the O'Day incident.

[88] Also, it is apparent that the notification of the purported valid reason was limited to the O'Day incident and not any other reason. This is clear from Ms Picken's statement where she states, "...I discussed with him [the Applicant] that Mr Kuhne and Mr Dea were very concerned about the comments made regarding the prominent local farmer and that particular matter is regarded as a disciplinary matter..."[103] It is clear from the following exchange during the hearing that the O'Day incident was the focus of the meeting that preceded the dismissal:

"Now you receive a letter and it's an invitation to another meeting. Now, in this letter they've indicated that they're really concerned about the fact that you named Mr O'Day. So they're not talking about the other stuff anymore. They're just talking about the incident of Mr O'Day; is that right? -Yes. Yes, Mr O'Day incident. Yes.

And it doesn't talk about the other performance stuff that's been raised Annette Lambert, does it? It just talks about the O'Day - - -? -That's correct. Yes

And it points out that it's become a disciplinary matter. That's in the second last - - -? -Yes, statement down the bottom.

And they talk about that as being about the disciplinary issue, the Mr O'Day comment, isn't it? -That's correct.

It wasn't about being late or enrolments or the other stuff? -No.

[89] Overall, it is clear that the Applicant was put on notice that the O'Day incident was the particular matter that was putting his job at risk and was given an adequate opportunity to defend himself in respect to that matter and other matters raised as part of the the complaint made by Ms Lambert. However, I am not satisfied that the same opportunity was provided for him to do so with respect to the Matthews and Associates email. The focus of the notification and the opportunity to respond was focussed on the O'Day incident.

387 (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

[90] There was no refusal to allow the Applicant to have a support person present.

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

[91] This factor is not relevant as the termination related to allegations of misconduct. I note that the sending of the email was characterised by the Respondent in the warning letter the Applicant received in March 2018 as a "performance matter." However, for the reasons set out above I am satisfied that the sending of the email was misconduct.

387 (f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures following in effecting the dismissal; and 387 (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

[92] The Respondent is a large organisation. There is no suggestion that the factors in s.387(f) and (g) would have had an impact on the procedures followed in effecting the dismissal. These are neutral considerations.

387(h) any other matters that the FWC considers relevant

[93] Section 387(h) provides the Commission with broad scope to take into account any other matters it considers relevant. I have also taken into account the following matters:

Impact on the Applicant's personal or economic situation:

[94] The impact of the dismissal on the Applicant's personal or economic situation may be taken into account.[105] The Applicant had at the time of the hearing secured some work as an Operations Manager at a winery. However, this is at a lower rate of pay than he enjoyed with the respondent. He has also secured some work with a transport company. The details of the Applicant's employment since dismissal are set out later in the decision. The Applicant is 55 years old. It is submitted that there is a comparatively small labour market in Mildura particularly for vocational education and training. The Applicant was paid four weeks' pay at the time of immediate dismissal which also needs to be taken into account.

[95] The Applicant's work history is a factor which can be taken into account in determining whether the dismissal is unfair.[106] Other than the events surrounding the O'Day incident, the Applicant has been subject to one warning for misuse of his email as discussed above during his time working for the Respondent. The Applicant has a relatively short period of employment with the Respondent. The Applicant's performance was on his own evidence, satisfactory. However, the Respondent had not conducted any performance appraisals with the Applicant or provided the promised mentor.

[96] The Applicant submits that the Respondent failed to follow its own complaints process in dealing with the complaint about the Applicant. This may or may not be correct, but irrespective, is of little consequence. It is clear that there was a procedure followed in putting allegations in writing to the Applicant and then giving him an opportunity to respond. In that context, whether or not the particulars of the Respondent's complaints process were followed is of no great consequence. In any case, on the final day of hearing the Applicant rightly conceded it was not a determinative matter.[107]

[97] The Applicant also submitted that the decision to dismiss him was not lawful as it does not appear that Mr Dea made the ultimate decision to dismiss him, and it is only Mr Dea who has the authority to dismiss employees under the Respondent's constitution. However, during closing submissions, the Applicant conceded that the evidence supported a finding that Mr Dea was the decision maker.[108] That being the case, this matter does not require further consideration.

[98] The evidence of Mr Kuhne was that the Applicant came across in his responses like he was blaming Respondent and was not adequately taking responsibility for his wrongdoing. I do not accept that that is the case in circumstances where the O'Day incident was not a valid reason for dismissal. If the Applicant was not taking responsibility for his wrongdoing on that matter, it was understandable as I am not satisfied he had done anything beyond making a comment which at worst could be described as ill advised.

I do have a concern about the level of insight of the Applicant as to his conduct surrounding the email sent to Matthews and Associates. I agree with the Respondent that certainly at the time of the incident, the Applicant seemed to think that he was justified in sending the email. During the hearing, the Applicant asserted that he was "autonomous" in respect to the Mathews and Associates work. I am not satisfied that was the case. However, the Applicant was quite clear in his evidence that he could now be trusted regarding that kind of conduct into the future. There was certainly no evidence that he has done otherwise since he was warned about his conduct in March 2018.

[99] The valid reason for the Applicant's dismissal, the email sent to Matthews and Associates, is a matter that weighs against a finding that the dismissal was unfair. I have also taken into account the gravity of the misconduct of the sending of the email. I consider the conduct to be of some significance and the warning given for it was warranted. However, the gravity of the misconduct is sending the Mathews and Associates email is not of a level which would warrant a dismissal. At the time the email was sent, it raised a risk of reputational damage. However, there was no evidence that there was any actual damage done to the relationship between Mathews and Associates and the Respondent, from an email that was sent over 12 months before the hearing in this matter. While the Applicant's attempts to justify the conduct are of concern, it is clear that he has not repeated such conduct and it only occurred on that single occasion. These factors weigh towards a finding the dismissal was unfair.

[100] The Applicant was notified of the reason for his dismissal and given an opportunity to respond, however this was focussed on the O'Day incident, which as stated above, was not a valid reason. He was not notified during the meetings preceding his dismissal that his conduct nine months earlier in sending the Mathews and Associates email was putting his employment at risk. The applicant was warned in March 2018, that a repeat of that type of conduct would put his employment at risk but having not repeated the conduct since that time, the Applicant could hardly have been aware that he was at risk of dismissal for that conduct. Further, I am not satisfied the Applicant was specifically told that the employer had lost trust in confidence in him. Overall, these factors weigh towards a finding of unfairness but not significantly so.

[101] The size of the employer and its human resources expertise are neutral factors.

[102] The Applicant's age and his inability to find comparable work in the comparatively small labour market of Mildura weigh towards a finding the dismissal was unfair. The Applicant has sought to mitigate his loss and has secured employment though at a lower rate of pay than he enjoyed with the Respondent. The Applicant has a relatively short period of employment with the Respondent which weighs against the finding that the dismissal was unfair. He was paid four weeks' pay in lieu of notice which I have taken into account.

[103] Considering all of these factors, I consider the dismissal of the Applicant to be unjust as the Applicant was not guilty of the key misconduct relied upon for the dismissal relating to the O'Day incident.[109] I am also satisfied that the dismissal is harsh as it is disproportionate to the gravity of the misconduct of the sending of the one email for which he was given a warning at the time it occurred. That single instance of insolence does not justify dismissal.[110].

[104] I find that the dismissal of the Applicant was unjust and harsh. It follows that the Applicant was unfairly dismissed.

[105] I now turn to consider the question of remedy.

[106] 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."

[107] Given my earlier conclusions, the matters set out in ss.390(1) and (2) are satisfied. Therefore, the jurisdictional preconditions to the order of an appropriate remedy are satisfied. The question of whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one. I consider that a remedy is appropriate in all the circumstances of this case.

[108] Subsection 390(3) of the Act underscores the primacy of reinstatement as a remedy for an unfair dismissal. The discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is inappropriate. In this matter, the Applicant seeks reinstatement. The Respondent opposes reinstatement on the basis that there has been a loss of trust and confidence in the Applicant.[111]

[109] There is no doubt that a loss of trust and confidence is an important factor in considering whether reinstatement is appropriate. There are a number of authorities that provide guidance on consideration of a submission that there is a loss of trust and confidence on the question of whether reinstatement is an appropriate remedy. These cases are conveniently summarised in the Fair Work Commission Benchbook and are replicated below:

"'Trust and confidence is a necessary ingredient in any employment relationship ...'[112] Where trust and confidence have been lost, reinstatement may be impractical.[113] The reason for the loss of trust and confidence must be 'soundly and rationally based'.[114]

An employer who has accused an employee of wrongdoing justifying summary dismissal may be reluctant to change their opinion regardless of a court finding.[115] Consequently it is important to carefully scrutinise any claim by an employer that reinstatement is impractical because of a loss of confidence in the employee.[116]

The fact that it may be difficult or embarrassing for an employer to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct is not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.[117]

The loss of trust and confidence is a relevant factor to be considered 'but it is not necessarily conclusive'.[118]

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."[119]

[110] I rely on those authorities in considering the matter of loss of trust and confidence and its impact on whether reinstatement is an appropriate remedy.

[111] As noted above, the Respondent has submitted that reinstatement as a remedy is inappropriate because there has been a loss of trust and confidence in the Applicant.

[112] The Respondent submitted that:

"if the Applicant were to be reinstated to his position as an employee of the Respondent, he would be required to provide training and teaching on behalf of the Respondent and would be seen in public as a representative of the Respondent. The Respondent has lost all trust and confidence in the Applicant to do so because:

a. the Applicant's conduct has damaged the Respondent's reputation with the O'Day family and the local community;

b. the Respondent's relationship with several key stakeholders such as local business, employers and regional industry would be damaged if the Applicant were to be seen continuing in his teaching role;

c. the Applicant's conduct shows a severe lack of judgement on his behalf and the Respondent would have no trust and confidence in him to act as its representative in public;

d. the Applicant has a history of exercising poor judgement in situations where he should have been more cognisant of the importance of the Respondent's reputation in the community."[120]

[113] I have considered these factors in light of the facts of the case. I have determined that the Applicant's single act of misconduct in sending the email to his previous employer was a valid reason for dismissal. However, the Applicant's single act of misconduct is not a sufficient basis to establish that the employment relationship is beyond repair. There was no evidence from any of the Respondent's witnesses that there was any impact whatsoever on the relationship between the Respondent and Matthews and Associates.

[114] As to the claim of the Respondent that the Applicant's conduct has damaged the Respondent's reputation with the O'Day family and the local community, there is simply no evidence to support that proposition. Nor is there any evidence that the Respondent's relationship with several key stakeholders such as local businesses, employers and regional industry would be damaged if the Applicant were to be seen continuing in his teaching role.

[115] I agree with the Respondent that the Applicant's conduct showed a lack of judgement in sending the email to his former employer. However, considering all of the circumstances, particularly that the Applicant has been responsive to the warning given, has refreshed his knowledge of the email policy and has not engaged in such activity since that time, I am not satisfied the circumstances surrounding the sending of the email provides a basis for finding that the Respondent could have no trust and confidence in him to act as its representative in public.

[116] The claim that the Applicant has a history of exercising poor judgement in situations where he should have been more cognisant of the importance of the Respondent's reputation in the community is overstated in light of my findings as to the extent of misconduct of the Applicant above.

[117] Taking into account all of the factors, I am not satisfied that reason for loss of trust and confidence is soundly and rationally based. I do not consider that reinstatement is inappropriate. Consequently, an order for reinstatement will be made to reappoint the Applicant to the position in which he was employed immediately before the dismissal.

[118] Section 391(2)(a) of the Act provides discretion to the Commission to determine if it is appropriate for an order maintaining the Applicant's continuity of employment and continuous service with the Respondent.

[119] An order for continuity is an exercise of discretion "separate and distinct from the decision to reinstate the employee".[121] This means that a person may be reinstated with or without an order for continuity of employment.[122] An order for continuity "ensures that the period specified is taken into account in determining any entitlement to service related benefits".[123]

[120] In this case, the Applicant was a full-time employee and had been employed with the Respondent for approximately 15 months. The absence of an order for continuity would operate as a penalty and adversely affect the Applicant's entitlements that are based on a period of continuous employment. No submission was made to the effect that if reinstatement were determined to be the appropriate remedy that an order for continuity should not be made. I am unaware of any discretionary reasons as to why an order for continuity in the circumstances of this case should not be made and I propose to make such an order.

[121] Section 391(3) of the Act provides the Commission with discretion, where appropriate, to make an order causing the Respondent to pay the Applicant an amount for the remuneration lost, or likely to be lost, by the Applicant because of the dismissal. Section 391(4) of the Act sets out factors which must be taken into account in determining the amount under s.391(3). These factors are:

• Any remuneration earned by the employee between the dismissal and making the order for reinstatement; and

• Any remuneration reasonably likely to be earned between making the order for reinstatement and the actual reinstatement.

[122] As I have indicated, an order to restore lost pay is discretionary. The Commission may take into account 'all of the circumstances of the case, including the conduct' of the employee that led to the dismissal.[124] Any misconduct by the employee that has led to the dismissal may reduce the amount ordered.[125]

[123] I propose to take into account the Applicant's misconduct in sending the email to his former employer. While I am satisfied the Applicant has learnt from his error, a reduction in the amount of lost pay is warranted in all the circumstances of this case. The deduction will reinforce to the Applicant the importance of not repeating this behaviour in the future.

[124] I am satisfied that the Applicant has made reasonable efforts to secure other employment. In the circumstances, I propose to reduce the order that I will make for lost pay by 25%.

[125] The Applicant was dismissed on 12 December 2018 and was paid four weeks' pay in lieu of notice. I propose that the order for reinstatement will take effect on Wednesday 24 July 2019. This should allow sufficient time for the Respondent to make arrangements for the reinstatement of the Applicant. Therefore, the period for which a restoration of pay order will be made is 32 weeks. With the 25 % reduction that I propose, the order for restoration of pay will be for 24 weeks at the Applicant's ordinary rate of pay. For the avoidance of doubt this is 75% of the amount the Applicant would have earned in the period 12 December 2018 until 24 July 2019. From this I propose to deduct any income that the Applicant has earned between the date of dismissal and the date on which the reinstatement order takes effect. The earnings to be deducted will include the amount paid in lieu of notice. In order that the total deductions are properly calculated I require the Applicant to verify by affidavit, the sources and sums of any income that he has earned (or will likely have earned) for the period since his dismissal until 24 July 2019. The affidavit must be filed in my chambers and served on the Respondent within five days of the date this decision.

[126] This remedy will ensure a fair go all round is accorded to both the employer and employee concerned.

[127] For the reasons earlier given, I am satisfied that dismissal of the Applicant by the Respondent was unfair. I am also satisfied in the circumstances that a remedy is appropriate, and that reinstatement is not inappropriate. The Applicant seeks reinstatement. I propose to order reinstatement, continuity of service and partial restoration of pay. The reinstatement will take effect on Monday, 24 July 2019 and the restoration of pay order will be 24 weeks' pay at the Applicant's ordinary rate of pay less any income earned between 12 December 2018 and 24 July 2019.

[128] The Applicant is required to file and serve an affidavit verifying the sources and sums of any income that he has earned (or will likely have earned) for the period between 12 December 2018 and 24 July 2019 within five days of the date of this decision.

[129] Orders giving effect to this decision will be separately issued.

[1] Exhibit A2, Witness Statement of Russell Wakefield at [7].

[2] Exhibit A2, Witness Statement of Russell Wakefield, Annexure RW-1.

[5] Applicant's Outline of Submissions, filed 5 March 2019 at [38].

[6] Exhibit A2, Witness Statement of Russell Wakefield at [14] - [16].

[10] Exhibit A2, Witness Statement of Russell Wakefield, [19].

[11] Exhibit A2, Witness Statement of Russell Wakefield, Annexure RW-3.

[12] Exhibit A2, Witness Statement of Russell Wakefield at [19]; Annexure RW-2.

[15] Outline of Respondent's Closing Submissions, 1 June 2019 at [11]; PN259.

[17] Exhibit A2, Witness Statement of Russell Wakefield at [32].

[23] Exhibit A2, Witness Statement of Russell Wakefield at [36] - [38].

[30] Outline of Respondent's Closing Submissions, filed 1 June 2019 at [47]; PN400.

[31] Applicant's Closing Submissions, filed 17 May 2019 at [9]; PN501.

[32] Exhibit A2, Witness Statement of Russell Wakefield, Annexure RW-1.

[35] Outline of Respondent's Closing Submissions, filed 1 June 2019 at [51] - [53].

[37] [1959] HCA 8; (1959) 101 CLR 298.

[38] Applicant's Closing Submissions, filed 17 May 2019 at [57].

[39] Applicant's Closing Submissions filed 17 May 2019 at [63].

[41] Exhibit A2, Witness Statement of Russell Wakefield at [12].

[44] Exhibit R1, Email exchange of Phil Matthews and Russell Wakefield, forwarded from Robin Kuhne to Shauna Picken, dated 20 March 2018.

[46] Outline of Respondent's Closing Submissions, filed 1 June 2019 at [17]; PN476-483.

[56] Exhibit A2, Witness Statement of Russell Wakefield, Annexure RW-5.

[57] Exhibit A2, Witness Statement of Russell Wakefield at [30].

[60] Applicant's Outline of Submissions, filed 5 March 2019 at [10].

[61] Exhibit A2, Witness Statement of Russell Wakefield, Annexure RW-1.

[63] Exhibit R2, Witness Statement of Shauna Picken at [5]

[64] Exhibit R2, Witness Statement of Shauna Picken.

[66] Exhibit R2, Witness Statement of Shauna Picken, Annexure SP-1

[67] Exhibit R2, Witness Statement of Shauna Picken, Annexure SP-2.; PN274.

[69] Exhibit R2, Witness Statement of Shauna Picken at [14].

[70] Exhibit R2, Witness Statement of Shauna Picken, Annexure SP-3.

[72] Exhibit R2, Witness Statement of Shauna Picken at [16] - [19].

[73] Exhibit A2, Witness Statement of Russell Wakefield, Annexure RW-1.

[76] Exhibit A3, Phillips Transport Payroll Transaction Details.

[78] Exhibit A4, Payslip For Period 1 March 2019 To 31 March 2019 From Wingarra Wine Group; Exhibit A5, Payslip For Period 1 April 2019 To 30 April 2019 From Wingarra Wine Group.

[79] Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410.

[81] Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21 (4 June 1931), [(1931) 45 CLR 359 at pp. 373, 377‒378

[82] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373]; cited in Annetta v Ansett Australia Ltd Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) [10] [(2000) 98 IR 233].

[83] Annetta v Ansett Australia Ltd Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at para. 10, [(2000) 98 IR 233].

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

[90] Exhibit A2, Witness Statement of Russell Wakefield at [32]; PN430-434.

[91] Exhibit R3, Witness Statement of Geoffrey Dea at [5].

[92] Exhibit R4, Witness Statement Robin Kuhne at[11].

[93] Exhibit A2, Witness Statement of Russell Wakefield, Annexure RW-5.

[94] Exhibit A2, Witness Statement of Russell Wakefield at [30].

[96] Exhibit R4, Witness Statement of Robin Kuhne at [5] - [6].

[97] Exhibit A2, Witness Statement of Russell Wakefield, Annexure RW-4.

[98] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at paras 70-73, [(2000) 98 IR 137]

[99] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)

[100] (1995) 60 IR 1, 7.

[103] Exhibit R2, Witness Statement of Shauna Picken at [14].

[105] Ricegrowers Co-operative Limited v Schliebs PR908351 (AIRCFB, Duncan SDP, Cartwright SDP, Larkin C, 31 August 2001) at para. 26; citing Byrne v Australian Airlines Ltd [1995] HCA 24 (11 October 1995), [(1995) 185 CLR 410]; Gasz v Mobil Refinery Australia Pty Ltd PR960826 (AIRCFB, Watson SDP, Hamilton DP, Lewin C, 1 August 2005) at para. 17; Ashley v Statewide Autistic Services Inc PR959835 (AIRCFB, Ross VP, O'Callaghan SDP, Cribb C, 7 July 2005), at para.110

[106] Streeter v Telstra Corporation Limited [2008] AIRCFB 15 (Acton SDP, Cartwright SDP, Larkin C, 24 January 2008) at para. 25, [(2008) 170 IR 1]; Cunningham v Australian Bureau of Statistics (2005) 148 IR 20; Gasz v Mobil Refinery Australia Pty Ltd PR960826 (AIRCFB, Watson SDP, Hamilton DP, Lewin C, 1 August 2005) at para. 17

[109] Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410.

[110] Rankin v Marine Power International (2017) 274 IR 123.

[111] Outline of Respondent's Closing Submissions, filed 1 June 2019 at [120] - [123].

[112] Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; cited in Nguyen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354 (Bissett C, 3 June 2011) at para. 24; Note: Perkins was decided under legislation with different wording to the current wording, using 'impracticable' rather than 'inappropriate'. The Full Bench in Australia Meat Holdings Pty Ltd v McLauchlan Print Q1625 (AIRCFB, Ross VP, Polites SDP, Hoffman C, 5 June 1998), [(1998) 84 IR 1 at p. 18], found that the observations in Perkins were still relevant to the question of whether reinstatement was inappropriate.

[113] Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; cited in Nguyen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354 (Bissett C, 3 June 2011) at para. 40

[115] Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186, 191.

[117] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 (Ross J, Gostencnik DP, Wilson C, 21 October 2014) at para. 27; citing Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186, 191.

[118] Australia Meat Holdings Pty Ltd v McLauchlan Print Q1625 (AIRCFB, Ross VP, Polites SDP, Hoffman C, 5 June 1998), [(1998) 84 IR 1 at p. 17].

[119] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 (Ross J, Gostencnik DP, Wilson C, 21 October 2014) at para. 28

[120] Outline of Respondent's Submissions, filed 17 March 2019 at [77].

[121] Kenley v JB Hi Fi (unreported, AIRCFB, Ross VP, Watson SDP, Holmes C, 22 June 2000) Print S7235 at para. 27.

[124] Kenley v JB Hi Fi (unreported, AIRCFB, Ross VP, Watson SDP, Holmes C, 22 June 2000) Print S7235 at para. 36.

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