• [182] In submissions filed on 3 October 2023 the Respondent submitted that the Applicant was terminated for:

• Breaching the Respondent's Sexual Harassment Policy; and

• Breaching the Respondent's Bullying and Harassment Policy.

• [183] In addition, the Respondent submitted that the Applicant engaged in ongoing, repeated conduct of a similar nature that was inappropriate to Ms Gray and other employees of the Respondent, relying on the incidents outlined at [36] and [37] above.

• [184] In submissions filed on 7 November 2023 the Respondent submitted that the Applicant was terminated for his ongoing misconduct towards four different female employees which was said to breach the Respondent's values, Bullying and Harassment Policy and Sexual Harassment Policy. The conduct that was said to constitute the inappropriate and repeated misconduct providing a valid reason for the Applicant's dismissal also included the Applicant's Facebook message to Ms Measures, which the Respondent submitted constituted a failure to follow a lawful and reasonable direction and a breach of confidentiality.

• [185] During the hearing, Mr Hickey gave evidence that one of the reasons for the dismissal was the 13 May Incident involving Ms Measures. The notes from the meetings between Mr Hickey and the Applicant do not shed much light on whether the 13 May Incident was conveyed in that meeting as a reason for the dismissal[222] although the Respondent now contends that this was a reason for the dismissal. Given I have found that the 13 May Incident did not constitute a valid reason for the dismissal of the Applicant, I do not consider it relevant to my consideration of whether the Applicant was notified of the reason for his dismissal pursuant to s.387(b).

• [186] The Applicant submitted that he was not notified of the valid reason and not provided with procedural fairness on the basis that:

• He was not actually provided with a clear and unambiguous reason for his dismissal before the decision was made to terminate his employment (on 20 June 2023) and/or before the dismissal (on 21 June 2023) nor provided an opportunity to respond (show cause);

• It was only during the hearing of this matter, via submissions, that the Respondent articulated its purported reason/s for dismissal;

• That the Respondent made the decision to dismiss the Applicant without giving him any warning that his employment was at risk prior to the dismissal meeting; and

• At all material times, the Respondent's written evidence demonstrated that there was no notification of the reason for the Applicant's dismissal prior to the Respondent dismissing the Applicant.

• [187] The Respondent, in its closing submissions filed on 7 November 2023, relies upon conduct alleged to have occurred on 22 January 2023, 8 March 2023, 31 March 2023, 2 April 2023, 15 May 2023, 25 May 2023 and 10 June 2023 as providing a valid reason for the Applicant's dismissal.[223]

• [188] The Respondent submitted that the Applicant was notified of the valid reason on the basis that:

• The Applicant was notified of the reasons verbally in explicit and clear terms in the outcome meeting held on 21 June 2023 before the Club informed the Applicant that they would be terminating his employment. It was submitted that this was supported by the meeting notes which refer to inappropriate and offensive comments made to Ms Measures and ongoing inappropriate conduct towards Ms Gray.

• This notification was before the decision was made to terminate and in explicit and clear terms. 15

• • The Applicant was also notified of the reasons in writing in the letter provided to him on 21 June 2023.[224]

• [189] The Applicant gave evidence that he attended a meeting with Mr Hickey and "Cathy" on 21 June 2023. Mr Hickey did all of the talking for the Respondent. Mr Hickey referred back to the events of 11 February 2023 and discussed his attempts to roster the Applicant and Ms Gray separately and stated that he had asked Ms Gray to apologise to the Applicant. The Applicant gave evidence that he had again raised his concerns regarding Ms Gray's conduct towards him. Mr Hickey then briefly spoke about the 10 June Incident, saying that both the Applicant and Ms Gray were accountable and that the comments were unacceptable, also stating that the comments made by the Applicant to Ms Measures were unacceptable. Mr Hickey then verbally relayed that the comments to Ms Gray were a reason for the dismissal[225] before providing him with a letter of termination.

• [190] Mr Hickey's written evidence was that he explained the purpose of the meeting to the Applicant and also said that the meeting was to discuss what was said to Ms Measures and that this was not acceptable, before terminating his employment. Mr Hickey's evidence to the effect that the dismissal was partially as a result of the 10 June Incident is corroborated by his contemporaneous notes. Mr Hickey also referred to what had occurred with Ms Gray since 11 February 2023. Mr Hickey largely agreed with the evidence of the Applicant regarding the meeting held on 21 June 2023.

• [191] In his oral evidence, Mr Hickey agreed that he made the decision to dismiss the Applicant without undertaking an investigation into Ms Measures' complaint[226] and without giving the Applicant any warning that his employment was at risk[227]. He further agreed that the decision to dismiss had been made no later than 20 June 2023, that the letter of dismissal was drafted on 20 June 2023, and that he dismissed the Applicant the following day on 21 June 2023.

• [192] The dismissal letter referred to the 15 June 2023 letter, the employment contract and various policies before referring to the letter that the Applicant had given to Mr Hickey on 19 June 2023. The dismissal letter then referred to various incidents and recited the outcomes of each incident of conduct, as extracted at [180] above. The letter then refers to the Gaudi Bar incident of 10 June 2023, referring to admissions made and a "thorough investigation" and the "Demi Comment" (which I understood to be a reference to the 25 May Incident), stating that it had been determined that the behaviour displayed was not acceptable, nor in keeping with the values of the Respondent. Neither the letter of 15 June 2023 or 20 June 2023 referred to any allegation or finding that the Applicant engaged in misconduct.

• [193] As can be seen from the above summary the communications to the Applicant and the Commission regarding the Respondent's reasons for dismissal has not been transparent or consistent.

• [194] I find, having regard to the evidence of Mr Ashburner[228] and the evidence of Mr Hickey, including his contemporaneous notes, the letter dated 15 June 2023 and the letter of dismissal dated 21 June 2023, that the valid reasons communicated to the Applicant for the dismissal were the 25 May Incident and the 10 June Incident. The Applicant was not notified of any other reasons for his dismissal. While other previous conduct was referred to in the 21 June 2023 meeting, I find that this was responsive to the Applicant's letter and/or his application for orders to stop bullying, and was more akin to an explanation of the Respondent's management of the conduct of the Applicant and his colleagues as opposed to constituting a notification that these matters were a reason for his dismissal.

• Neither the 30 May 2023 letter or the 15 June 2023 letter (being those notifications provided to the Applicant before the decision was made to terminate his employment) specified in explicit and plain and clear terms what the conduct being investigated was other than broad statements regarding "comments made to another employee on 25 May 2023" and an "altercation with an employee" on 10 June 2023;

• Neither the 30 May 2023 letter or the 15 June 2023 letter gave the Applicant any warning that his employment was at risk or that his conduct constituted misconduct; and

• The Applicant was not told in the meeting of 1 June 2023 or 15 June 2023 that his employment was at risk.

• [196] The evidence discloses that the decision to dismiss the Applicant was made before the 21 June 2023 meeting. There is a lack of specificity regarding the conduct being investigated in the 30 May 2023 letter and the 15 June 2023 letter, and during the 1 June 2023 and 15 June 2023 meetings (which were the only relevant events before the dismissal decision was made on 20 June 2023). Further, given that I have found that there was a valid reason to dismiss the Applicant based on his conduct on 22 January 2023, 8 March 2023, 31 March 2023 and 2 April 2023, and that these incidents were not explicitly or plainly relied upon by the Respondent or notified to the Applicant at the time, I find that in all the circumstances, the Applicant was not notified of the reason for his dismissal in explicit and plain and clear terms.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

• [197] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[229]

• [198] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[230] Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[231]

• [199] The Applicant submitted that he was not given an opportunity to respond to any valid reason because:

• The Applicant had to guess the reason for his dismissal;

• The Respondent failed to give the Applicant an opportunity to respond, as once it finalised its purported "investigation" it failed to put any formal allegation to the Applicant in order for him to respond;

• it did not identify and explicitly bring to the Applicant's attention a reason for his dismissal prior to dismissing him;

• it did not bring to his attention the specific criteria that it was going to rely on to determine whether to dismiss or not; and,

• It failed to give the Applicant an opportunity to show cause as to why his employment ought not to be terminated and then dismissed the Applicant without providing any clear, unambiguous or particularised reason for the dismissal.

• [200] The Respondent submitted that the Applicant did have an opportunity to respond to any valid reason related to the Applicant's capacity or conduct because the Applicant:

• Was provided notice of the complaint against him in writing on 30 May 2023;

• Was provided with an opportunity to provide a response to the allegations on 1 June 2023 and 15 June 2023; and

• Was given an opportunity to respond to the reasons for his dismissal on 21 June 2023 and on that occasion did not provide any reasons as to why the Respondent should not terminate his position, instead relying on his view that the matter had been dealt with despite receiving a letter prior saying the investigation was ongoing.

• [201] As outlined previously at [172], I have found that the following matters constituted a valid reason for the Applicant's dismissal:

(a) The 22 January Incident (altercation with Ms Gale, within earshot of customers);

(b) The 8 March Incident (swearing at Ms O'Cass);

(c) The 31 March Incident (making derisive or accusatory or comments to Ms Whiting about Ms Gray);

(d) The 2 April Incident (repeatedly shouting "get out" at Ms Gray in the Gaudi Bar);

(e) The 25 May Incident (making the comment "I hope your friend who got molested is okay," and saying words to the effect of "Well, she is a liar and she was never molested, she would have made the whole thing up," in relation to Ms Gray to Ms Measures);

(f) The 10 June Incident (swearing at Ms Gray on 10 June 2023).

• [202] An opportunity to respond to individual incidents of misconduct occurring months or years before the dismissal at the time the incidents occur does not constitute an opportunity to respond to a reason for dismissal consisting of multiple incidents considered collectively.[232] I accept that discussions were held with the Applicant at the time of many of the incidents that the Respondent now relies upon to dismiss him. However, I do not consider that these discussions provided the Applicant with an opportunity to respond to a reason for his dismissal.

• [203] The evidence in this matter does not disclose that the 30 May 2023 letter or the 15 June 2023 letter specified in explicit and plain and clear terms what the conduct being investigated was other than broad statements regarding "comments made to another employee on 25 May 2023" and an "altercation with an employee" on 10 June 2023, and did not warn the Applicant that his employment was at risk. These documents did not refer to all of the conduct that the Respondent now alleges constituted a valid reason for the Applicant's dismissal, nor that I have found constituted a valid reason for dismissal. Nor did these documents allege that the Applicant had engaged in misconduct or breached his contract of employment nor any policies of the Respondent.

• [204] The various accounts of the meetings of 1 June 2023 and 15 June 2023 given by the Applicant and Mr Hickey, and contemporaneous records of these meetings, do not evidence that the Applicant was told that his employment was at risk, nor do they traverse or clearly ask for a response to matters other than, at most, the 11 June Incident and the 25 May Incident. While the Applicant may have been afforded an opportunity to respond in respect of the 13 May Incident, as I have outlined at [137] to [140] above, this incident did not constitute a valid reason for the Applicant's dismissal. Accordingly, it is to be disregarded for the purposes of the following consideration of s.387(b) of the FW Act.

• [205] As previously outlined, Mr Hickey gave evidence, which I accept given the corroborating evidence, that the decision to dismiss the Applicant was made before the 21 June 2023 meeting. Mr Hickey agreed that the Respondent failed to give the Applicant an opportunity to respond.[233] I accept the evidence of the Applicant regarding the meeting of 21 June 2023.

• The Applicant did not have an opportunity to respond to any valid reason in the meeting of 21 June 2023 as the decision to dismiss him had already been made;

• The Respondent failed to put any formal allegation to the Applicant in order for him to respond in the letters dated 1 June 2023 and 15 June 2023 and the related meeting prior to his dismissal, other than vague assertions regarding several instances of conduct;

• The Applicant was not provided with any evidence obtained during the investigation into his conduct for him to consider and reply to prior to his dismissal;

• Prior to the dismissal meeting, the Applicant was not warned that his employment was at risk and given an opportunity to show cause as to why he should not be terminated;

• At no point was the Applicant advised that any matters other than the 11 June Incident and the 25 May Incident were being investigated or considered as possible reasons for his dismissal despite the Respondent now alleging that numerous other instances of conduct constituted a valid reason for dismissal in this matter; and

• The Applicant was not given any notice that it was alleged that his conduct constituted misconduct or that it constituted a breach of his contract of employment or any policies of the Respondent, let alone advised what specific policy or contractual terms he was alleged to have breached, despite the dismissal letter referring to these documents and the Respondent relying on breaches of these obligations in these proceedings.

• [207] Having regard to the matters referred to above, I find that the Applicant was not given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

• [208] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. Both parties accepted that this was not relevant to the factual circumstances before me and was effectively a neutral consideration. I accept these submissions.

Was the Applicant warned about unsatisfactory performance before the dismissal?

• [209] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

To what degree would the size of the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [210] Where an employer is substantial and has dedicated human resources personnel and access to legal advice, there will likely be no reason for it not to follow fair procedures.[234] The Applicant submitted that St Marys is a business of considerable size and employs dedicated human resources staff. The Respondent contended that the human resources function followed a thorough process and afforded the Applicant full procedural fairness. I have considered these procedures below in relation to s387(h).

• [211] However, neither party submitted that the size of the Respondent's enterprise was likely to impair the Respondent's ability to follow fair procedures in effecting the dismissal and I find that the size of the Respondent's enterprise had no such impact.[235]

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [212] Neither the Applicant or the Respondent submitted that there was an absence of dedicated Human Resource management specialists or expertise in the Respondent's enterprise and I find accordingly.

• [213] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

• [214] The Applicant submitted that the following other matters are relevant to the Commission's consideration of whether the dismissal was harsh, unjust or unreasonable:

• the Applicant's age, future employment prospects and any economic and personal effect of the dismissal on him;

• Where the Respondent had neither notified the Applicant for the reason for his dismissal nor provided him with an opportunity to respond, the Applicant's dismissal had been completely devoid of procedural fairness and "a fair go all round";

• The Applicant had been a faithful employee of the Respondent for over a year, and had performed well for the duration of his employment with the Respondent, indicated by the Applicant having been selected for VIP team training (which was remunerated at a higher level than the Applicant's regular rate of pay per shift);

• The Applicant had been treated differently to Ms Gray, whose behaviour was not investigated or disciplined despite her having sworn at the Applicant, made false complaints against him, allegedly engaged in the spreading of sexualised rumours about the Applicant, and had discussed the false complaints against the Applicant with colleagues; and,

• The Respondent's failure to properly address, investigate, or issue disciplinary action in respect of the conduct directed at the Applicant from February 2023 to June 2023, contributed to the circumstances giving rise to the Applicant's conduct leading up to his dismissal in June 2023.

• [215] The Respondent submitted that the following other matters are relevant to the Commission's consideration of whether the dismissal was harsh, unjust or unreasonable:

• The Applicant's future employment prospects and current economic circumstances noting that Sydney is a highly populated area with significant job opportunities, particularly within the hospitality industry, the Applicant was competent in his role and that it would not be difficult to secure employment in the current job market, and economic environment, where the unemployment rate is also significantly low;

• The Applicant's work performance or history (including his short tenure as a casual, numerous incidents during his employment which were disruptive to the Respondent's business and verbal warnings given on 22 January 2023, 8 and 31 March 2023);

• Procedural fairness having been afforded to the Applicant as he was informed of the allegations against him and he was given an opportunity to respond;

• The Applicant lodging an antibullying application four months after alleged bullying occurred in an opportunistic and defensive response to a complaint against him;

• Comparable treatment of Ms Gray who was also terminated for misconduct.

• [216] I do not have any evidence before me to suggest that the Applicant lodged an antibullying application in the Commission in an opportunistic and defensive response to a complaint against him and I do not make any finding that this occurred. I have previously found that he did not breach confidentiality or disclose confidential information as alleged by the Respondent.

• [217] The Applicant submits that the Applicant has been treated differently to Ms Gray regarding disciplinary action during his employment. As has previously been observed by the Australian Industrial Relations Commission:[236]

"...the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable... In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing 'apples with apples'. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made. ... Specifically, the Commission must be conscious that there may be considerations subjective to the circumstances of an individual that caused an employer to take a more lenient approach in an alleged comparable case."

• [218] I do not have any evidence before me to suggest that the Applicant and Ms Gray were treated differently at the time of dismissal. I do not make any finding that this occurred. Both the Applicant and Ms Gray were dismissed on the same day. Mr Hickey gave evidence that Ms Gray's dismissal, like the Applicant's was as a result of her comments. I infer this to be a reference to the events of 11 June 2023. Assuming, without deciding, that differential treatment between Ms Gray and the Applicant during their employment is relevant, I do not have sufficient evidence before me to make a finding that the Applicant and Ms Gray were treated differently during their employment. Mr Hickey gave evidence that he spoke to Ms Gray regarding the 11 February incident and her conduct in the workplace and gave conflicting evidence regarding whether he took disciplinary action against Ms Gray prior to her dismissal.[237] No evidence is before me regarding any considerations that are subjective to the circumstances of Ms Gray that may have caused the Respondent to treat her in a particular way. Similarly, the Applicant was either verbally counselled or warned on numerous occasions regarding his conduct (much of which he accepted was inappropriate).

• [219] I have factored into my consideration that the Applicant had been out of work and had only recently been able to find casual employment at the time of the hearing of this matter despite his extensive attempts to obtain other employment. I am satisfied that the negative economic effects of the dismissal on him were significant. I have also considered his age and that he had been a casual employee of the Respondent for over a year. The Respondent acknowledged that he was competent in performing his duties and he had recently been selected for training up to work shifts in the VIP area. These factors weigh in favour of a finding that the dismissal was harsh, unjust and or unreasonable. By contrast, I have also taken into account that the Applicant was repeatedly reminded to act in a professional manner, counselled or verbally warned regarding his inappropriate conduct in the workplace. This weighs against a finding that the dismissal was harsh, unjust and or unreasonable.

• [220] However, I consider that the Respondent's failure to manage the escalating tension between Ms Gray and the Applicant had a role to play in the final altercation between the pair that led to the Applicant's dismissal. The enmity between the pair had not been managed, no mediation had been conducted and no active attempts, other than rostering them on separate shifts, had been undertaken to assist the two employees to overcome their differences and work together respectfully and safely. In my view, this contributed to the circumstances of the ongoing dispute between the Applicant and Ms Gray.

• [221] The Applicant contends that his dismissal was completely devoid of procedural fairness and "a fair go all round". Deprivation of procedural fairness may render a dismissal unfair even where circumstances otherwise justify dismissal.[238] I have previously found that he was not notified of the reason for his dismissal nor given a proper opportunity to respond. However, the procedural fairness deficiencies go well beyond these matters. Whilst the Applicant had intuited that his employment was at risk he was not explicitly told this until his dismissal meeting (after a decision to end his employment had already been made), he was not provided with appropriate particulars of the allegations against him either in meetings or correspondence (including that it was being considered that he had engaged in misconduct or had breached policies and his contract - let alone the relevant provisions of those documents). The Respondent's investigations also were deficient with Mr Hickey accepting that no investigation had been conducted into the incidents on 22 January 2023, 31 March 2023, or the out-of-hours incident on 13 May 2023, and that he had only met with Ms Measures once to confirm that her written statement was true. The Respondent is a business of considerable size and employs dedicated human resources staff. It did not put into evidence any policy which dealt with the procedures to be adopted where conduct issues arise and are being investigated. The procedures that it adopted were deficient, ad hoc, lacked transparency and lacking in procedural fairness. This weighs in favour of a finding that the dismissal was harsh, unjust and/or unreasonable.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

• [222] I have made findings in relation to each matter specified in section 387 as relevant.

• [223] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.[239]

• [224] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was harsh, unjust and/or unreasonable, and therefore unfair. Whilst there was a valid reason for the dismissal, having taken the significant procedural fairness deficiencies and other factors into account, I am satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.

• [225] For the reasons provided, the Applicant's dismissal was unfair.

• [226] I have not reached any conclusion as to what remedy (if any) should be ordered in this matter. I am concerned that the parties (and particularly the Respondent) have not adequately addressed the question of remedy in their submissions. In particular, I have identified that the Respondent's submissions lack any consideration of those matters that the Commission is required to consider if it forms a view that reinstatement is inappropriate and compensation should be awarded, being the matters specified in s 392 of the FW Act.

• [227] I will separately issue directions dealing with the procedural steps to be followed by the parties on the question of remedy.

[1] Statement of Scott Ashburner dated 9 September 2023 (Ashburner) [3].

[3] Warrell v Fair Work Australia [2013] FCA 291.

[5] Applicant's outline of submissions on permission dated 15 September 2023 [6]-[7].

[6] Per Fair Work Act 2009 (Cth) (FW Act) s.596(2)(a).

[10] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137 Print S5897 [73].

[11] Wadey v Y.M.C.A. Canberra [1996] IRCA 568 cited in Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544 [85].

[12] Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156.

[13] Gera v Commonwealth Bank [2010] FMCA 205 [82].

[14] Applicant's outline of submissions dated 12 September 2023 ('AS') [64].

[18] Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512.

[19] Shorten v Australian Meat Holdings (1996) 70 IR 360, 376; citing Slifka v J W Sanders Pty Ltd (1996) 67 IR 316, 327

[22] Respondent's outline of submissions dated 3 October 2023 ('RS') [2.3].

[23] Statement of Ms Demi-Lee Measures dated 3 October 2023 ('Measures') [14].

[26] [2014] FWC 3670 [62].

[28] [2014] FWCFB 8278.

[30] P7680 (AIRCFB, Ross VP, Drake DP, Palmer C, 24 December 1997).

[34] [2019] FWC 606.

[35] [1931] HCA 2.

[40] Applicant's outline of submissions in reply dated 10 October 2023 (AS-R) [12].

[42] AS-R [19], [2023] FWC 2493 [154]-[155].

[50] Applicant's closing submissions dated 7 November 2023 ('ACS') [1]-[3], PN371 - PN380.

[52] ACS [9], PN738 - PN739, PN757 - PN762.

[57] ACS [52]-[53], Lumley v Bremick Pty Ltd Australia t/a Bremick Fasteners [2014] FWCFB 8278.

[58] ACS [54], Ashburner SA-6.

[65] ACS [80] referring to Previsic v Australian Quarantine Inspection Services (AIRC, Holmes C, 6 October 1998); see also Andrew Hinchen v Moonee Valley Racing Club [2016] FWC 2176.

[66] Gera v Commonwealth Bank [2010] FMCA 205 at 82.

[67] Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156.

[68] PN909, PN918 - PN920, PN917, PN915, PN1007 - PN1016; PN1021 - PN1027 ; PN1033 - PN1055.

[70] Nazar Lazar v Inghams Enterprises Pty Ltd [2013] FWC 3447, 46.

[73] Statement of Mr Shane Hickey dated 3 October 2023 ('Hickey') [53], Annexure (t).

[75] [2014] FWCFB 7198 at [27].

[79] Respondent's closing submissions dated 7 November 2023 ('RCS'), [1.8].

[83] Hickey [69], Measures [44].

[109] RCS [2.8]-[2.9], Hickey (c)

[119] Being Ms Measures, Ms Tolmie, Ms Gray, and Ms O'Cass, per RCS [3.4] - [3.6].

[128] Statement of Mr Scott Ashburner in reply dated 9 October 2023 (Ashburner, reply) [33-35], PN167.

[131] [1959] HCA 8; (1959) 101 CLR 298.

[132] PR954993, 9 February 2005 per Lawler VP, Leary DP and Deegan C.

[134] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[135] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

[137] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.

[138] Edwards v Justice Giudice [1999] FCA 1836, [7].

[139] [2021] FWCFB 3457 (Newton).

[140] [2011] FWAFB 523.

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

[154] Ashburner [7], PN129 - PN131, PN146 - PN157.

[159] Ashburner reply [14]-[15], PN307 - PN335.

[160] Ashburner reply [33], PN336 - PN370. The original handwritten complaint by Ms Gray alleged that Mr Ashburner had repeatedly shouted at Ms Gray to 'get the fuck out of the bar'. Ms Bronwyn Harrison was interviewed by Mr Hickey in regards to the complaint, and no notes were taken of the interview. According to Mr Hickey's oral evidence, Ms Harrison had not heard Mr Ashburner swear at Ms Gray but is also deaf in one ear and may not have been able to hear the content of the exchange in any event.

[166] Ashburner [7], PN129 - PN131, PN146 - PN157.

[168] Ashburner, reply [34]-[35].

[173] Measures [33], Annexure (A).

[175] Measures [38], Annexure (B).

[176] Hickey [47], Annexure (O).

[177] [2022] FWCFB 32 [140]-[141].

[178] Print Q9292, [1998] AIRC 1592 ("Rose").

[181] RS [2.17], RCS [2.11] - [2.12].

[184] Measures Annexure (B), PN237 - PN244.

[187] Ashburner [41], Measures [35].

[194] B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 [32], citing Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 and Queensland Rail v Wake, PR974391, 19 October 2006.

[195] [2018] FWC 2025 [79].

[197] [2011] FWA [42]:

[198] [2013] FWC 9642.

[204] Hickey [69], Measures [44], PN742.

[206] [2022] FWCFB 147.

[208] [2014] FWC 446 (Pearson 1).

[209] [2014] FWCFB 1870.

[211] [2022] FWCFB 88.

[213] [2011] FWA 6858.

[215] [2016] FWCFB 108.

[217] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

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

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

[221] APS Group Placements Pty Ltd v O'Loughlin [2011] FWAFB 5230, [51] per majority.

[224] Hickey [53], attachments (T) and (U).

[228] Ashburner [36-41], [47], [50-52].

[229] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[230] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1, 14-15.

[231] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7.

[232] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [24].

[234] Jetstar v Meetson-Lemkes [2013] FWCFB 9075, [68].

[236] Sexton v Pacific National (ACT) Pty Ltd PR931440 (AIRC, Lawler VP, 14 May 2003), [36].

[238] Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156

[239] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].

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