Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Applicant dismissed for alleged comments made in response to the delivery of an Acknowledgement of Country and in relation to a colleague - no valid reason for dismissal - dismissal unfair - question of remedy to be determined.

• [1] Mr Shaun Turner has made an unfair dismissal application against the Darebin City Council (Respondent) requiring a determinative conference, at which his evidence was received, along with evidence from Ms Yvette Fuller (Chief People Officer for the Respondent) and Ms Elizabeth Skinner (Former Manager of City Works for the Respondent).

Initial matters to be considered - s.396 of the Fair Work Act 2009

• [2] The application satisfies s.396(a) of the Fair Work Act 2009 (the Act), in that it was made within the 21-day period after the dismissal took effect and there is no dispute that Mr Turner is a person protected from unfair dismissal because he had completed the applicable minimum employment period and the Darebin City Council Agreement 2022 - 2025 applied to his employment (s.396(b)). Further, it is not contended and nor do I find that the Respondent was a small business employer at the material time. As such, consideration of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)) is not required. Finally, it was not claimed by the Respondent and nor does the material before me establish that the dismissal was a case of genuine redundancy (s.396(d)).

Section 385 of the Act - was the dismissal unfair?

• [3] It is clear that Mr Turner was dismissed on 3 June 2024 (s.385(a)) and, as outlined above, this is not a matter that involves a small business and the requirement to consider whether Mr Turner's dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)). Nor is it a matter requiring consideration of whether or not the dismissal was a case of genuine redundancy (s.385(d)). I am, however, required to determine whether Mr Turner's dismissal was harsh, unjust or unreasonable (s.385(b)), and will do so below.

• [4] Having firstly been engaged by the Respondent as a casual employee in mid-2017,[1] Mr Turner became a full-time Sweeper Driver in the City Works department of the Respondent following an offer made in a letter dated 3 April 2019.[2] The letter of offer included Terms & Conditions of Employment as an attachment,[3] which were signed by Mr Turner on 4 April 2019. Amongst these were provisions from the Darebin City Council "The Way Forward" Enterprise Agreement 2013-2017,[4] an instrument that has been subsequently replaced, firstly by the Darebin City Council Enterprise Agreement 2018 - 2022, and then by the Darebin City Council Agreement 2022 - 2025 (the Agreement). Mr Turner commenced his full-time position on 8 April 2019. The Terms & Conditions of Employment included a requirement that Mr Turner "diligently comply" with the Respondent's policies and procedures, as amended, and attached a copy of Mr Turner's position description.

• [5] In a letter headed Notification of Investigation and Stand Down and dated 14 May 2024 (Allegations letter),[5] the Respondent asserted that during a toolbox meeting held on 17 April 2024 (Toolbox Meeting), Mr Turner:

1. Interrupted an Acknowledgment of Country by making the following statements in a tone that was perceived as disrespectful, sarcastic and aggressive, by stating:

a) "The Acknowledgment of Country is not necessary" and

b) Aboriginal and Torress Strait Islanders "do not deserve an acknowledgment at the start of meetings".

1. Made a derogatory comment about a colleague, by stating "I don't like the guy, I hate him."

1. Inappropriately discussed the same colleague's employment details in this group setting, including by referencing the colleague's licenses and salary.

• [6] Mr Turner was further notified that he was stood down so that the Respondent could investigate the allegations and cautioned that if proven, his behaviour could constitute breaches of the Respondent's Code of Conduct (Code) and Equal Employment Opportunity Policy (EEOP), and that if it was determined that he had engaged in the alleged misconduct, the consequent disciplinary action could include counselling, or a formal warning, or dismissal.

• [7] The investigation process that followed comprised a meeting on 21 May 2024 attended by Mr Turner, Mr Turner's support person, Ms Fuller, Ms Skinner and Mr Clem Munday, the Respondent's People & Culture Business Partner. At this meeting, Mr Turner provided a response to the allegations. A record of what was said at the 21 May 2024 meeting was tendered by the Respondent.[6]

• [8] The Respondent subsequently sent Mr Turner a letter dated 22 May 2024, with the heading Show cause as to why your employment should not be terminated (Show Cause letter).[7] The Show Cause letter contained phrasing that was somewhat opaque in setting out the findings of the Respondent but it outlined that "after reviewing the information available, such as your [Mr Turner's] response to the allegation and statements from the relevant witnesses", the Respondent considered that the 3 allegations outlined in the Allegations letter had been substantiated. Moreover, the Show Cause letter outlined the Respondent's conclusion that there had been serious breaches of:

1. The Code, in that Mr Turner had failed to both treat colleagues with respect and courtesy and meet the minimum standards of behaviour.

a) Not provided a work environment that fostered mutual respect and working relationships free from all forms of discrimination, harassment, bullying and victimisation.

b) Treated an individual unfavourably because they had a protected attribute.

1. Engaged in racial discrimination and vilification by inciting and encouraging hatred, serious contempt for, revulsion or serious ridicule against another person because of their race.

d) Bullied a fellow employee by unreasonably criticising them about the way in which they were undertaking their tasks and deliberately excluding or isolating them.

• [9] The Respondent requested that Mr Turner provide a response as to why his employment should not be terminated in either a subsequent meeting or by providing a written response.

• [10] On 31 May 2024, Mr Turner and Ms Emma Bagg (ASU Organiser) attended a meeting with Ms Skinner. Later on the same day, Ms Bagg sent an email to the Respondent attaching Mr Turner's formal written response dated 31 May 2024 (Written Show Cause Response).[8]

• [11] In the Written Show Cause Response, it was conveyed on Mr Turner's behalf that the investigation into the allegations had lacked procedural fairness and, specifically:

a) The Respondent had only confirmed on 31 May 2024 that the complainant was Mr Stanfield but had not provided names of the other witnesses referenced in the Show Cause letter or their statements.

b) Mr Stanfield had intentionally entrapped Mr Turner during the Toolbox Meeting by enticing him to make comments about the particular colleague in question.

1. Mr Turner denied the context the Respondent had attached to the allegations regarding the Acknowledgement of Country, countering with:

(i) He had simply questioned why the Acknowledgement of Country was necessary because it was the first time it had been done at a toolbox meeting;

(ii) He did not make the comment "they do not deserve an acknowledgement to country" and instead had stated "if we need to be thanking anyone it's the people who have worn the uniform and fought for our country to keep us free."

(iii) He did not adopt a tone that was disrespectful, sarcastic, or aggressive.

d) Mr Stanfield was the only person to have raised the colleague's name.

e) Mr Turner had not mentioned the colleague's name during the discussion regarding licences, salaries and the rostering of casual employees.

f) It was during the discussion concerning licenses and salaries that Mr Stanfield put it to him that he (Mr Turner) disliked the colleague in question, thereby entrapping him and inducing his response "I don't dislike the bloke; I hate the bloke, He's a liar."

g) The investigation process had been deficient, in that:

(i) The allegations were first presented one month after the Toolbox Meeting.

(ii) Mr Stanfield had informed Mr Turner a couple of days after the Toolbox Meeting that things were "all good."

(iii) The Respondent had not engaged with the witnesses Mr Turner had identified.

(iv) No minutes of the Toolbox Meeting had been provided.

h) The Respondent had not complied with various obligations under the Agreement, the EEOP, the Code and its Disciplinary procedure.

• [12] Mr Turner also included some specific comments in the Written Show Cause Response that addressed the impact dismissal would have on him.

• [13] On 3 June 2024, the Mr Turner received a letter headed Notification of Termination (Termination letter) advising him of the outcome of the Respondent's investigation. In the Termination letter, it was incorrectly asserted that Mr Turner had confirmed during the 21 May 2024 meeting that he had made the comments in relation to the Acknowledgement of Country outlined in the Allegations letter. At the 21 May 2024 meeting, Mr Turner had in fact given his own account of what he had said at the Toolbox Meeting.

• [14] The Termination letter continued by correctly recording that during the 21 May 2024 meeting, Mr Turner had said:

• 1. "It is getting out of hand and people are losing it, it is now being done at the opening of a postage stamp. I don't need to be welcomed into my own country";[9]

1. He hated the work colleague and that the colleague makes false accusations; and

• [15] The Termination letter then summarised the responses Mr Turner provided in the Written Show Cause Response, before advising that the Respondent did not consider them satisfactory and had concluded that Mr Turner's actions constituted a serious breach of the Respondent's policies and procedures, including but not limited to:

1. The Code, in that Mr Turner had failed to both treat colleagues with respect and courtesy and meet the minimum standards of behaviour.

a) Not provided a work environment that fostered mutual respect and working relationships free from all forms of discrimination, harassment, bullying and victimisation.

b) Treated an individual unfavourably because they had a protected attribute.

1. Engaged in racial discrimination and vilification by inciting and encouraging hatred, serious contempt for, revulsion or serious ridicule against another person because of their race.

d) Bullied a fellow employee by unreasonably criticising them about the way in which they were undertaking their tasks and deliberately excluding or isolating them.

• [16] The Termination letter also included the assertion that Mr Turner had already received a Final Warning for the same breaches of the Code and the EEOP for earlier actions he took against the same colleague and other employees, and that as a result, the decision had been made to terminate his employment with immediate effect for serious misconduct under the Respondent's disciplinary procedure.

• [17] In considering whether I am satisfied that Mr Turner's dismissal was harsh, unjust or unreasonable, I must take into account the criteria in s.387 of the Act.

Was there a valid reason for the dismissal relating to Mr Turner's capacity or conduct (including its effect on the safety and welfare of other employees)? - s.387(a) of the Act

• [18] In dealing with s.387(a), the question the Commission must address is whether there was a valid reason for the dismissal related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees). The well-established principles applicable to the consideration required under s.387(a)[10] were outlined in Sydney Trains v Gary Hilder, as follows:

1. A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.

1. When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.

1. A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).

1. For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee's dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).

1. Whether an employee's conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee's contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).

1. The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.

1. The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).

1. An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.

• 9. Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable. [11]

The Respondent's reliance on the Code of Conduct, the Equal Employment Opportunity Policy, Workplace behaviour training, Statements & Guideline and the Agreement

• [19] As has been outlined above, the Terms & Conditions of Employment document signed by Mr Turner on 4 April 2019[12] included a requirement that Mr Turner "diligently comply" with the Respondent's policies and procedures, as amended. The Terms & Conditions of Employment also included confirmation from Mr Turner that he had read and understood his attached position description, the staff handbook and the code of conduct in effect at the time. The position description outlined the expectation that employees treat others fairly and courteously, while being respectful of alternate views and opinions.[13]

• [20] In dismissing Mr Turner, the Respondent asserted Mr Turner's actions constituted serious breaches of its Code of Conduct (Code)[14] and Equal Employment Opportunity Policy (EEOP).[15] The Respondent submitted that Mr Turner should have been well-informed in relation to the Code and the EEOP, and therefore well-informed as to what the Respondent considered to be appropriate workplace behaviour. Relatedly, the Respondent also asserted that Mr Turner had engaged in workplace behaviour training in 2024 and it relied upon its Statement of Commitment 2019,[16] the Aboriginal Cultural Protocols Guide[17] and certain terms in the Agreement.

The Respondent's Code of Conduct and Equal Employment Opportunity Policy

• [21] Taking effect in February 2024, the Code applies to all full-time employees of the Respondent. The Code is said to set out the minimum expectations the Respondent has of its employees, with the purpose of making employees aware of the range of issues and legislative requirements that relate to their behaviour at work. The Code also outlines the Respondent's aspiration to create a work environment in which all employees (including Aboriginal and Torres Strait Islander people) feel supported, respected and valued in their roles.[18] Also set out are organisational values of the Respondent, which include showing respect to one another,[19] and the responsibility of employees for workplace standards and personal conduct that include:

a) Behaving in ways that respect colleagues and community, their dignity and human rights;

b) Modelling the Respondent's values and principles; and

• c) Conducting their work relationships respectfully.[20]

• [22] The Code includes a section entitled 'Respect for Others', which outlines the Respondent's commitment to protecting the health, safety, human rights, and wellbeing of all employees and, as far as is reasonably practicable, to provide a safe workplace that is free from, inter alia, discrimination, bullying, harassment, victimisation and violent behaviour. In particular, it is outlined in the Code that treating, or proposing to treat, someone unfavourably because of their race is discrimination, that harassment occurs when someone engages in conduct that would make a reasonable person feel offended, humiliated, or intimidated because of their race, and that the Respondent has zero tolerance for both.[21]

• [23] The Code also includes a section entitled 'Equal Opportunity & Human Rights', which outlines an expectation[22] that employees understand "cultural safety and respect for Traditional custodians and Aboriginal employees and community members, in accordance with the Respondent's Aboriginal Cultural Protocols Guide and Statement of Commitment 2019."

• [24] More broadly, the Code outlines an obligation on all employees of the Respondent to ensure that the Code, the Respondent's policies, and relevant legislation are not breached. It stipulates that alleged breaches of the Code must be reported to the relevant Manager or the People and Culture Department and that where a breach does occur, it will be managed in accordance with the Respondent's Disciplinary Procedure and Grievance & Investigation Procedure.[23]

• [25] The EEOP took effect in February 2024. It also applies to all full-time employees, and outlines, amongst its purposes, the following:

1. the provision of a workplace that is free from, inter alia, discrimination, harassment, vilification and victimisation.
2. the creation of a working environment where all employees are treated with fairness, equality, dignity, and respect.
3. the creation of a working environment where the cultural safety for Aboriginal and Torres Strait Islander staff and psychological safety for all are understood and upheld.

• [26] The EEOP outlines that it is the responsibility of employees of the Respondent to create an inclusive work environment free from, inter alia, discrimination, harassment, vilification and victimisation, and where people feel physically, psychologically and culturally safe and respected. In dealing with racial discrimination, the EEOP makes explicit reference to racial abuse and insults, and unwelcome observances about a person's cultural observances.[24] Harassment is stated to include unwelcome behaviour that offends, humiliates or intimidates, where motive and intent are irrelevant, and a single incident is said to be capable of amounting to unlawful behaviour.[25]

• [27] The Respondent produced and relied upon a 'Record of Learning Report'[26] said to demonstrate that Mr Turner completed online/e-course training in relation to the (then) Equal Employment Policy on 2 March 2023 and the (then) Code of Conduct on 6 March 2023. This was disputed by Mr Turner.

• [28] Evidence subsequently adduced before the Commission on 6 November 2024 confirmed that Mr Turner was on leave during the period of 24 February 2023 to 10 March 2023 and included an assertion from Mr Turner that he could not have completed these e-courses on 2 March 2023 and 6 March 2023 because he did not have access to a computer while on leave. Mr Turner's evidence in this regard was unchallenged and his account was supported by additional, unchallenged accounts of him having been playing golf at the specific times the two courses were said to have been completed.[27]

• [29] The Respondent nonetheless maintained that the 'Record of Learning Report' indicates that Mr Turner completed the e-courses on the specified dates, and that this record could only have been generated as a result of the use of Mr Turner's private credentials at the specific times and dates. Mr Turner's response to this was that that his team leader knew his password and had told him when he returned from his annual leave that he (the team leader) had in fact undertaken the training courses in Mr Turner's name because he was "annoyed" at receiving the notifications sent to him outlining that they had not yet been completed.[28]

• [30] As for the Code and EEOP, which took effect in February 2024, while the Respondent produced no records of Mr Turner having been trained in relation to either, it submitted that with Mr Turner having participated in a policy review as part of the staff consultative committee process in late 2023, its expectation was that Mr Turner would have read, understood and provided feedback on what became the EEOP prior to its endorsement by the Respondent in February 2024.

• [31] The Respondent asserted that after having been issued with a final warning on 31 October 2023, Mr Turner participated in face-to-face workshops relating to 'behaviour in the workplace' facilitated by a consultant named Phil Garside in early 2024.[29] The Respondent could not, however, provide particulars of the dates upon which these workshops were said to have occurred.[30] In response, Mr Turner said he had no recollection of ever having come across Mr Garside or having attending such workshops and his evidence in this regard was unchallenged.[31]

• [32] The Statement of Commitment 2019 comprises a series of commitments made by the Darebin City Council to Traditional Owners and Aboriginal and Torres Strait Islander people. in August 2019. When Mr Turner asserted that he had never seen a copy of this document,[32] Ms Fuller suggested that a copy of it hung just inside the door of Mr Turner's work location, such that he would have walked past it several times a day. Ms Fuller also suggested that copies were displayed in other buildings of the Respondent that Mr Turner would have attended.[33]

The Respondent's Aboriginal Cultural Protocols Guide

• [33] The Respondent's Aboriginal Cultural Protocols Guide outlines that an Acknowledgement of Country should be given at the beginning of staff meetings as a standing and separate first item in any formal or informal Agenda[34] and Ms Fuller said that it was the Respondent's expectation for there to be an Acknowledgment of Country before all formal meetings.

• [34] The Respondent also argued that Mr Turner, having been a bargaining representative during negotiations for the Agreement, would not have been unaware of the appendix in the Agreement relating to Aboriginal and Torres Strait Islander (which deals with leave entitlements) and the Darebin City Council's recognition of the Wurundjeri Woi Wurrung people in Clause 12 of the Agreement, outlined in the following terms:

"Darebin City Council acknowledges the Wurundjeri Woi Wurrung people who are the Traditional Owners and custodians of the land on which Darebin stands. We recognise their continuing connection to land, waters, and culture. We pay our respects to Elders past, present and emerging."

Conclusions regarding the Respondent's reliance on the Code of Conduct, the Equal Employment Opportunity Policy, Workplace behaviour training, Statements & Guideline and the Agreement

• [35] For the following reasons, I do not consider that the Respondent's contention that Mr Turner should have been well-informed in relation to what the Respondent considered to be appropriate workplace behaviour based on the Code, the EEOP, training, statements and guidelines, and the Agreement is compelling.

• [36] Firstly, while I have noted the initial confirmation given by Mr Turner that he had read and understood the position description, the staff handbook and the (then) code of conduct of the Respondent when he signed the Terms & Conditions of Employment document on 4 April 2019, the evidence has not persuaded me that the Respondent oversaw induction and training processes of such rigour in relation to Mr Turner so as to have a compelling basis upon which to assert that any non-compliance with the Code and EEOP, and/or alleged non-compliance that occurred years later, of itself provides a 'sound, defensible or well founded' reason for his dismissal.

• [37] Further, even though the evidence before me points to a strange sequence of events in early March 2023 with respect to Mr Turner's annual leave and what the Respondent's 'Record of Learning Report' indicates, I am not persuaded that Mr Turner completed online training in relation to either the (then) Equal Employment Policy on 2 March 2023 or the (then) Code of Conduct on 6 March 2023. Even if I am wrong in reaching this particular conclusion, I would query how in depth that training would have been having given that evidence from Ms Fuller suggested that the training modules took "about two or three minutes" to complete.[35]

• [38] Finally, while Mr Turner may have had the opportunity to gain some exposure to the EEOP as part of his role on the staff consultative committee this "bar table" assertion was not further developed by the Respondent and therefore I do not consider it to be particularly compelling.

a) I have not been persuaded that Mr Turner attended training facilitated by Mr Garside;

b) I do not consider the Respondent's contentions in relation to the City of Darebin's Statement of Commitment 2019 either displace Mr Turner's assertion that he had never seen this document or provide a compelling basis for the Respondent's reliance on it, or an inference that Mr Turner was bound by its terms;

• c) Mr Turner gave unchallenged evidence that he had never seen the Aboriginal Cultural Protocols Guide[36] and Ms Fuller conceded that it was indeed likely that Mr Turner had never seen it; and

d) The Respondent did not adduce evidence that supports a conclusion that Mr Turner had any particular awareness of the existence of either Clause 12 in the Agreement or the Aboriginal and Torres Strait Islander leave entitlements appendix or, within the context of Mr Turner's dismissal, that there should be any particular significance attached to them.

• [40] Having reached these conclusions, I will proceed to consider the nature of the conduct in issue.

• [41] The Respondent outlined and grouped the various allegations against Mr Turner in the Termination Letter as Allegations A, B and C.

Allegation A - statements relating to the Acknowledgement of Country

• [42] Mr Turner was the only Toolbox Meeting attendee who gave evidence before me. Mr James Stanfield, at that time the Respondent's Acting Coordinator for Waste and DRRC, conducted the Toolbox Meeting and he made a statement for these proceedings that was filed and served by Mr Turner. Mr Turner also filed and served statements from other attendees at the Toolbox Meeting (Mr James Sghendo, Mr Brenton Conduit, Mr Mahad Adan, Mr Phil Mezzatesta and Mr Matthew Fitzgerald).

• [43] The statements of Mr Stanfield, Mr Sghendo, Mr Conduit, Mr Adan, Mr Mezzatesta and Mr Fitzgerald are unsworn but their contents were not challenged by the Respondent. In email correspondence to my Chambers prior to the determinative conference, the Respondent advised that it did not require any of Mr Stanfield, Mr Sghendo, Mr Conduit, Mr Adan, Mr Mezzatesta or Mr Fitzgerald for cross-examination. This position was confirmed at the determinative conference, at which time the Respondent advised that it relied on these statements to substantiate its allegation that Mr Turner interrupted the Acknowledgement of Country given at the Toolbox Meeting but it did not otherwise take issue with their contents.[37]

• [44] Having observed Mr Turner as a witness, it is clear he communicates directly and in forthright terms. Mr Turner did not attempt to obfuscate when it came to the admissions he had made during the investigation and nor did he set about trying to 'guild the lily' in order to have his evidence considered in a more favourable light. His testimony before the Commission was frank. Mr Turner was not shy about arguing his point of view and he might be regarded, in some contexts, as being unduly combative and lacking in nuance and subtlety. Mr Turner did, however, reveal a level of insight when he testified "am I loud? Well, people always tell me I'm loud, maybe because it's partly because I'm part deaf."[38]

• [45] Mr Turner described toolbox meetings of the Street cleansing team as having taken place on a weekly basis. Whereas Mr Stanfield outlined that starting the Toolbox Meeting with an Acknowledgement of Country was "as per policy", I note that in addition to never having seen the Aboriginal Cultural Protocols Guide, Mr Turner gave evidence that prior to Mr Stanfield's Acknowledgement of Country on 17 April 2024, there had never been one delivered at a toolbox meeting of the Street cleansing team. This aspect of Mr Turner's evidence was unchallenged and the same observation was made by Mr Adan, Mr Mezzatesta and Mr Fitzgerald. Further, while Mr Sghendo's statement included a reference to a Welcome to Country (as opposed to an Acknowledgement of Country), he outlined that Mr Turner "questioned why this was being introduced for the first time at our meetings..."

• [46] At the determinative conference, Mr Turner's evidence was:

"I asked Mr Stanfield what he was doing, as it had never been done before in our toolbox meeting. And he said basically what he was doing, and I said, 'Well, if you're thanking anyone, you should be thanking the service people that had fought for the country', so that we could sit there and have a toolbox meeting."[39]

• [47] In their statements, others in attendance at the Toolbox Meeting outlined the following:

• 1. Mr Stanfield outlined that his Acknowledgement of Country was "interrupted and dismissed by Shaun Turner and then added to with an acknowledgement of servicemen who died for the country."[40]

• 2. Mr Sghendo's account was that when Mr Turner questioned the Acknowledgement of Country "he was then wrongly accused of making a derogatory comment about Indigenous people, which he did not say. Shaun simply asked why we weren't also acknowledging the servicemen of our country, and after that, he made no further comments." [41]

• 3. Mr Conduit outlined "Right before the end of the acknowledgement, Mr Shaun Turner said in a very concerned way 'We should also acknowledge the service people who fought and protected our country as well.'" [42]

• 4. Mr Adan, Mr Mezzatesta and Mr Fitzgerald also outlined that Mr Turner had said that they should be honouring service men and women from the past.[43]

• [48] The Respondent asserted in the Termination letter that at the 21 May 2024 meeting, Mr Turner confirmed he had said "The Acknowledgment of Country is not necessary" and that Aboriginal and Torres Strait Islanders "do not deserve an acknowledgment at the start of meetings" at the Toolbox Meeting. This is not correct. Mr Turner did not confirm these two statements at that meeting.[44] In the Written Show Cause Response[45] and his witness statement,[46] Turner specifically denied that he said that Aboriginal and Torres Strait Islanders "do not deserve an acknowledgment at the start of meetings." These denials went unchallenged.

• [49] Having regard to Mr Turner's unchallenged evidence and what has been disclosed to the accounts of those who attended the Toolbox Meeting, I am not persuaded that Mr Turner said either "The Acknowledgment of Country is not necessary" or that Aboriginal and Torres Strait Islanders "do not deserve an acknowledgment at the start of meetings."

• [50] I am satisfied, however, that Mr Turner made a comment to the effect that if anyone was to be acknowledged or thanked at a toolbox meeting, it should be the service men and women who had fought for this country (i.e. Australia) but I do not consider that expressing such an opinion constitutes a valid reason for dismissal.

• [51] Mr Turner also did not contest the contents of the Respondent's record of what he said during the 21 May 2024 meeting,[47] which included his account of the following additional comments he made at the Toolbox Meeting:

"There was talk of minute taking. James Stanfield went into Welcome of Country, I said are you joking, this is meant for special occasions, next thing you know we will have it at an opening of a letter."[48]

• [52] At no stage, however, has Mr Turner conceded that he had adopted a disrespectful, sarcastic and aggressive tone.

• [53] Mr Sghendo's account going to the tenor of the Toolbox Meeting was "Despite the discussions being loud at times, Shaun remained composed and did not engage in any inappropriate behaviour."[49] Of Mr Turner's response to Ms Stanfield's delivery of the Acknowledgment of Country, Mr Conduit's account was "In no way, shape or form was it rude or disrespectful from my point of view and understanding."[50]

• [54] As for Mr Stanfield himself, his statement outlines that the Respondent's Street cleansing team had been through a turbulent time prior to his commencement as Acting Coordinator, and that relations had been impacted by tension associated with industrial action accompanying enterprise bargaining. Mr Stanfield characterised the Toolbox meeting as the first meeting "since all the disruptions" and volunteered that he was "well aware that tensions still remained within the team" and that he was expecting the meeting to be "fractious."

• [55] Mr Stanfield's account outlines that after the Acknowledgement of Country, the interpretation dispute he had anticipated concerning the Agreement's licensing requirements ensued. He outlined that he held one view and Mr Turner held another and that when tensions "rose", Mr Turner left the meeting. Mr Stanfield described the Toolbox Meeting as "particularly unruly", and yet he made no specific reference to Mr Turner having adopted a tone that was disrespectful, sarcastic, or aggressive.

• [56] While she reported the matter to Ms Fuller, Ms Skinner was not at the Toolbox Meeting. Ms Skinner's evidence was that the only person to raise the Toolbox Meeting circumstances with her was Mr Stanfield. She could not recall whether any other person had raised issues with her about Mr Turner's conduct[51] and made no written report. While she accepted that Mr Stanfield was not personally offended by what transpired,[52] Ms Skinner asserted that Mr Stanfield was uncomfortable with the tone of the meeting and that he had characterised Mr Turner's behaviour overall as unacceptable.[53]

• [57] I have also noted that Mr Stanfield outlined that he spoke to Mr Turner on the day after the Toolbox Meeting with a view to clarifying his (Mr Stanfield's) "minor error" regarding the interpretation of the Agreement. Mr Stanfield characterised this conversation with Mr Turner as "a good conversation in which I advised him that I had not been personally offended by what had happened, that I understood tensions were high and that I had anticipated a heated conversation in the meeting." Mr Stanfield suggested that this exchange cleared the air and re-established a "comfortable" working relationship and his statement concluded with him outlining that he and Mr Turner proceeded to work successfully together for the remainder of the time they were colleagues.

• [58] Prior to the 21 May 2024 meeting, the Respondent did not outline the basis for its allegation that Mr Turner had adopted a disrespectful, sarcastic and aggressive tone, or that his tone had been perceived as such. In the Show Cause letter, the Respondent outlined the conclusion that Mr Turner had nonetheless adapted such a tone "after reviewing the information available, such as your response to the allegation and statements from the relevant witnesses." The Respondent did not make such "statements from the relevant witnesses" available to Mr Turner during the investigation process and nor did it submit them to the Commission. The Respondent also neither sought to challenge Mr Turner when he denied, at the determinative conference, that he had not adopted a sarcastic tone and nor did it seek to cross examine Mr Stanfield in relation to his comment that the meeting was heated but he was not personally offended by what had transpired. Similarly, the Respondent did not challenge the accounts relating to Mr Turner's demeanour that were given by both Mr Sghendo and Mr Conduit.

• [59] I consider that Mr Stanfield's Acknowledgement of Country would have caught the members of the Street cleansing team off guard and that Mr Turner's specific question "are you joking?", together with his reference to the "opening of a letter", were an articulation of a reaction of surprise.

• [60] I regard Mr Turner's various comments as having been a spontaneous expression of his opinion that Acknowledgements of Country are appropriate on special occasions but one was not necessary at the Toolbox Meeting, and that his comments were laced with his underlying frustration in relation to the various issues pertaining to his work. Considered in this context, and in the absence of evidence suggesting this was so, I have not been persuaded these particular comments of Mr Turner either rise to the level of having been disrespectful and aggressive in tone, or that they were perceived by anyone to be so, as I explain below.

• [61] Mr Turner's comment "next thing you know we will have it (an Acknowledgement of Country) at an opening of a letter" was sarcastic and I therefore accept that Mr Turner employed sarcasm to express his opinion that Acknowledgements of Country are at risk of overuse. However, I consider that Mr Turner's sarcastic inference needs to be evaluated within the context of all of his comments. It was linked to and, in my view, ameliorated by his stated belief that an Acknowledgement of Country "is meant for special occasions." I am therefore not persuaded that Mr Turner's use of sarcasm was in furtherance of an intention to vilify.

• [62] Nor do I consider the manner in which Mr Turner expressed his point of view gives rise to a valid reason for his dismissal. Mr Turner's reaction to Mr Stanfield's Acknowledgement of Country was forthright but having considered the accounts of Mr Stanfield's and the other Toolbox Meeting attendees in their totality, I am not persuaded that it affected Mr Stanfield or any other attendee to any material extent. Indeed, Mr Stanfield had anticipated a heated conversation going into the Toolbox Meeting.

• [63] The Respondent also contended that in addition to his conduct at the Toolbox Meeting, the various responses given by Mr Turner, including at the meetings on 21 May 2024 and 31 May 2024, were not satisfactory. At the determinative conference, the Respondent specifically submitted that its decision to dismiss Mr Turner was more related to the responses he gave during the 21 May 2024 meeting.[54]

• [64] I have therefore reviewed the record of the discussion at the 21 May 2024 meeting,[55] which Mr Turner accepted as being accurate. The part of the discussion between Mr Turner (identified as "ST") and Ms Fuller (identified as "YF") that was directed at the allegation that Mr Turner interrupted the Acknowledgement of Country, was as follows:

"ST: There was talk of minute taking. James Stanfield went into Welcome of Country, I said are you joking, this is meant for special occasions, next thing you know we will have it at an opening of a letter.

YF: Why do you think it should only be for special occasions?

ST: This is meant for people who aren't from this country, I don't think there should be one every time we open a postage stamp.

YF: We have very strong expectations that an Acknowledgment of Country is done before all formal meetings.

ST: Why didn't we do it in this meeting then? It is getting out of hand and that is why people are losing it, it is now being done at a postage stamp. As far as I know half of us are born here, I don't need to be welcomed to my own country. If people don't want to be there, they can leave.

YF: Are you saying you will continue to disrupt an Acknowledgement of Country?

ST: I won't disrupt it but I want to be asked if I would like you to give me the courtesy to step outside."

• [65] I have already dealt with the comments Mr Turner said he made to Mr Stanfield at the Toolbox meeting but as to the ensuing dialogue:

1. Mr Turner did not say, and never said, that there should never be Acknowledgments of Country.

1. Nor did Mr Turner threaten to disrupt them going forward.

1. Mr Turner repeated his opinion that Acknowledgements of Country are at risk of overuse and opined that there is not universal acceptance when it comes to their delivery.

• [66] When this evidence of the 21 May 2024 meeting discussion, and Mr Turner's testimony at the determinative conference, is considered in its totality, it is clear that while Mr Turner may have queried the extent to which Acknowledgments of Country should be conducted, he also expressed the view that they are warranted for sizeable, special occasions, such as one where international visitors might be present.[56]

• [67] The Respondent's submissions make clear that it nonetheless took particular offence to Mr Turner's use of the word "courtesy" when stating "I won't disrupt it [an Acknowledgement of Country] but I want to be asked if [sic] I would like you to give me the courtesy to step outside". The Respondent submitted that this use of the word "courtesy" demonstrates that Mr Turner:

a) Would continue to breach the Respondent's Values, the Code and the EEOP;

b) Had complete disregard for the final warning he received in 2023;

1. Would continue to be disrespectful to his colleagues;

d) Neither understands nor appreciates the impact of his behaviours; and

e) Was contemptuous of the Respondent's commitment to its Indigenous employees and community.

• [68] These submissions do not persuade me that Mr Turner's use of the word "courtesy" forms the basis of a valid reason for his dismissal.

• [69] Firstly, even putting my finding that Mr Turner had either been inadequately trained or not trained at all in relation to the Respondent's Values, the Code, the EEOP, the Aboriginal Cultural Protocols Guide and the Statement of Commitment 2019 to one side, I do not accept the Respondent's apparent proposition that a failure by Mr Turner to completely defer to its views without question would of itself constitute a breach of the Respondent's Values, the Code and the EEOP and constitute a valid reason for dismissal.

• [70] Secondly, while Mr Turner did not deny having received a final warning in 2023, he disputed and continues to dispute the basis for it.

• [71] Thirdly, Mr Turner specifically said that he would not disrupt Acknowledgements of Country in the future.

• [72] Fourthly, while the Respondent suggests that Mr Turner has no understanding or appreciation in relation to the impact of his behaviour and accused him of being contemptuous of the Indigenous community, I note that Mr Turner's support person at the 21 May 2024 meeting was an Indigenous man and that Mr Turner's testimony included:

"I believe that I'm being made out to be a racist. Well, I've got to say that I was brought up on Broadmeadows. I come from a family of eight. My best friends out at Broadmeadows happen to be Aboriginals. One of them marrying my sister. I have a niece and great niece and nephews who are all Aboriginals."[57]

• [73] Lastly, whereas the Respondent contends that Mr Turner was contemptuous of its commitment to its Indigenous employees, Mr Turner gave evidence of having voluntarily trained Indigenous drivers hired by the Respondent during the course of his employment.[58]

• [74] More broadly, Mr Turner was responding to a question put to him during a show cause meeting at which he had been invited to outline why his employment should not be terminated. I do not consider Mr Turner would be afforded a "fair goal all round" if he was condemned for using the word "courtesy" during his attempt to explain his position. Mr Turner may have expressed a preference for being given the option to absent himself when an Acknowledgement of Country is being delivered but he did not state that they should not go ahead. As I have outlined, at no stage did Mr Turner express the view that there should never be Acknowledgements of Country. Indeed, he opined that they are warranted on special occasions. That Mr Turner holds a different point of view when it comes to Acknowledgements of Country does not, of itself, make him contemptuous of the Respondent's.

• [75] Finally, it was also outlined in the Respondent's submissions that Mr Turner's support person at the 21 May 2024 meeting is an indigenous man and that Ms Fuller and Ms Skinner were so offended by Mr Turner's comments and behaviour at that meeting that they independently telephoned the support person afterwards to apologise on account of him having had to witness Mr Turner's "behaviour and the offensive comments."[59] There was, however, no evidence before the Commission suggesting that Mr Turner's support person was in any way offended by Mr Turner.

• [76] As robust as it was, when it is read in its totality and considered in context, I am not persuaded that the nature and delivery of Mr Turner's response at the 21 May 2024 meeting gave rise to a valid reason for his dismissal.

• [77] Allegations B and C arose from the same part of the dialogue at the Toolbox Meeting. Through Allegation B, the Respondent asserted that Mr Turner made a derogatory comment about a colleague by stating "I don't like the guy, I hate him." Through Allegation C, the Respondent asserted that Mr Turner had inappropriately discussed the same colleague's employment details in this group setting, including by referencing the colleague's licenses and salary.

• [78] At the determinative conference, the comment forming the basis of Allegation B was confirmed by Mr Turner, who gave evidence of having stated:

"I do not dislike the bloke; I hate the bloke. He is a liar."[60]

• [79] Mr Turner's account was that Mr Stanfield introduced the name of the other colleague into discussion after it had been put to Mr Stanfield that the Respondent was assigning work to unlicensed employees. Because he did this during debate about staffing, workload and inappropriate equipment, Mr Turner charged Mr Stanfield with having done so provocatively, knowing that he (Mr Turner) was already in an argumentative mood.

• [80] The part of the discussion directed at Allegations B and C in the record of the discussion from the 21 May 2024 meeting[61] was as follows:

"ST: the recollection of the meeting is to discuss all the problems, who is covering shifts, who is the boss, who is giving us directions, what is going on with the team. As you know there wasn't a team member there, we were told by James Stanfield that the person in questions didn't feel like he wanted to face the group. Now James Stanfield has changed his story to: I didn't think it was appropriate for him to attend. There was discussions about how a person got employed without the appropriate licenses. The main thing when we advertise a job is the licence.

YF: How did you get into the conversation about the license?

ST: We were discussing how there is a two man truck that is driving around with one man in it. We were wondering why this was happening. James [Stanfield] and James [Sghendo] had a discussion that you must be employed with a license.

YF: What was the item you were discussing when you went into this conversation?

ST: having the appropriate license, we were talking about a few people who don't have license. For one, James Sghendo said that this is in the EB that you are meant to be employed with the license. James Stanfield said this is untrue I don't know where you are getting this from.

YF: when you were discussing the person in the two-man truck without the license, why didn't you think this was [the colleague]?

ST: the discussion went on about licenses and the next morning he (James Stanfield) apologised to the team saying it was in the EB.

YF: what else did you discuss about this individual?

ST: about him not being able to assist where he should be assisting

ST: yes, he can't fill the void that we need him to work, he runs his own race and basically does what he likes and appoints himself to overtime.

YF: did you engage in anything else about [the colleague].

ST: we did not mention [the colleague's] name. James Stanfield said "alright Shaun we know you don't like [the colleague]" I said "I hate him, he made false accusations, I don't think I have to like people I work with"

YF: do you think saying you hate him, and he is a liar is respectful?

ST: people would have agreed with me. He was known to follow people around and report on him. It is a team thing that has happened that has got out of hand.

YF: did you ask about his incremental increase.

ST: I asked what is the purpose of a banding review, why do we go through them and why are they set up? To me we review if we are meeting the expectations of the role. Asked the question of do you have to fulfil anything? James Stanfield said it was automatic. Which I think is ridiculous. Every year we sit down and go through the PPR process, why do we do it if it is an automatic process?

YF: back in the day a discussion needed to occur if the person is not meeting expectations. So unless there was a performance plan in place you get it.

ST: don't you think that him not having a license should be part of this process.

ST: I don't think 7 out of 8 people in the team have to work part of his role, I think it is ridiculous

ST: at the end I got up and said: "this meeting is ridiculous". I left the meeting and went back to work.

YF: any other comments or statements you would like me to consider?

ST: yes, that [the colleague's] name was never mentioned until James Stanfield bought it up.

YF: even if everyone apart from [the colleague] has a license? You just said 7 out of 8 men have it. it seems clear you are talking about [the colleague]."

• [81] Mr Stanfield's unsworn statement does include any specific reference to either Allegation B or Allegation C. In his unsworn statement, Mr Sghendo suggested that tensions at the Toolbox Meeting only escalated when Mr Stanfield "baited" Mr Turner with an "irrelevant remark" about the other colleague, which gave rise to Mr Turner articulating his "honest feelings" but not acting "disrespectfully."[62]

• [82] It bears repeating that in the Termination Letter, the Respondent outlined that it considered the various actions of Mr Turner to have constituted a serious breach of the Respondent's policies and procedures, including but not limited to:

1. The Code, in that Mr Turner had failed to both treat colleagues with respect and courtesy and meet the minimum standards of behaviour.

e) Not provided a work environment that fostered mutual respect and working relationships free from all forms of discrimination, harassment, bullying and victimisation.

f) Treated an individual unfavourably because they had a protected attribute.

g) Engaged in racial discrimination and vilification by inciting and encouraging hatred, serious contempt for, revulsion or serious ridicule against another person because of their race.

h) Bullied a fellow employee by unreasonably criticising them about the way in which they were undertaking their tasks and deliberately excluding or isolating them.

• [83] The Respondent submitted that by stating in a team meeting that he hated another colleague who was also a member of the Street cleansing team and then accusing that colleague of "making false accusations" and/or actually calling the colleague a "liar" without any supporting evidence or information, Mr Turner failed to demonstrate respect and did not give the Respondent confidence that he would show the colleague any respect going forward.[63]

• [84] While I consider it was not necessary for Mr Stanfield to draw the other colleague's name into the dialogue in this way, Mr Turner's comments in response were equally unnecessary. The better course for Mr Turner would have been to simply ignore Mr Stanfield's ill-considered aside and resist the urge to inject vitriol into the discussion about the work affairs which were concerning him. Ultimately, however, I am not persuaded that these puerile comments of Mr Turner, although ill-advised and inappropriate, rise to such a level that they constituted a valid reason for his dismissal, particularly because the colleague in question was not present when Mr Turner made them.

• [85] As regards the matters raised by Allegation C, I am not persuaded that they constitute a valid reason for Mr Turner's dismissal. The licences required to be held by members of the Respondent's Street cleansing team and the consequent implications for the work they are able perform, plus their relevance to an employee's salary band and the assessment of their performance as part of the Performance Planning and Review framework, appear to have been the source of ongoing debate and disputation. The colleague in question appears to fall outside certain parameters that Mr Turner and some of his colleagues consider are established by the terms of the Agreement because he does not hold a particular licence. Whether or not the colleague in question (or any other colleague) holds a particular licence is an objective fact, whereas the implications of holding or not holding a particular licence would seem, in the Respondent's workplace, to give rise to questions of Agreement interpretation. Within this context, and noting that neither the colleague's name nor the quantum of his salary were raised by Mr Turner during the Toolbox meeting, I do not consider there is anything nefarious about circumstances pertaining to the colleague having been caught in the crosshairs of a dispute about the correct interpretation of the Agreement under discussion. Such a dynamic does however call for all participants involved in the particular dialogue and debate to remain focussed on the issues.

• [86] The Respondent also sought to rely upon the final warning the Respondent issued to Mr Turner on 31 October 2023, which it said had been issued for similar behaviour directed at the same colleague. The final warning arose from certain allegations put to Mr Turner by the Respondent and the Respondent's determination that they had been substantiated. In issuing the final warning, the Respondent outlined an expectation that Mr Turner henceforth comply with its policies and procedures, including the Code and the EEOP.

• [87] The communication of the final warning on 31 October 2023 was accompanied by a caution that a further failure by Mr Turner to comply with the Code, the EEOP and his terms and conditions of employment might result in further disciplinary action, up to and including termination. The Respondent submits that within this context, Mr Turner's further, serious breaches of the Code and EEOP (in respect of Allegations A, B and C) both warranted and constituted a valid reason for his dismissal. The Respondent's reliance on Mr Turner having been issued with a final warning on 31 October 2023 was a foundational feature underlying its case on valid reason. The Respondent ultimately submitted that if the only conduct in issue was the conduct during the Toolbox Meeting, it would not have terminated Mr Turner's employment.[64]

• [88] The difficulty for the Respondent is that the status of the final warning was disputed. Mr Turner contested it when it was issued on 31 October 2023 and he maintained his opposition to it, denying that he had acted in the manner alleged by the Respondent and disputing the findings of the Respondent's investigation. To the extent the final warning was based on actions and statements that Mr Turner allegedly directed towards two colleagues in 2023, including the colleague who was the particular focus of Allegations B and C, there was no direct evidence before the Commission that enables me to be comfortably satisfied that that it was soundly based and validly issued. Accordingly, I am not persuaded the Respondent's reliance on the final warning it issued to Mr Turner on 31 October 2023 advances its case.

• [89] The Respondent's case against Mr Turner on the issue of valid reason effectively rested on the premise that its employees must, without question, both subscribe and adhere to its views when it comes to Acknowledgements of Country. The proposition underlying the Respondent's case appears to be that there will be a valid reason for dismissal if an employee fails to act in complete deference to their employer's views and, moreover, does not adopt them. I do not accept this proposition.

• [90] In the absence of a single witness to his actions attesting to having felt disrespect, Mr Turner was dismissed because he did not embrace the delivery of an Acknowledgement of Country at a toolbox meeting and instead employed sarcasm when expressing his opinion that Acknowledgements of Country are at risk of being overused. Mr Turner declared both at the Toolbox Meeting and when under investigation, that Acknowledgements of Country are warranted on special occasions. Mr Turner did not state that they should not be delivered at the Respondent's workplaces, making the request that in such circumstances, he be given the option of not being present when they are taking place. Mr Turner also gave a commitment that he would not disrupt Acknowledgements of Country going forward. Mr Turner's choice of words when seeking to explain his position offended the two employees who were conducting the investigation and disciplinary process on behalf of the Respondent, but not, it would seem, the Indigenous man present as Mr Turner's support person. Offence was taken because Mr Turner held a contrary view.

• [91] For the reasons outlined above, I have not been persuaded that any of Mr Turner's conduct constitutes a valid reason for the termination of his employment or that the Respondent can rely upon the final warning it issued on 31 October 2023 to advance its case. The absence of a valid reason for dismissal weighs in favour of a conclusion that the dismissal of Mr Turner was unfair.

Notification of 'that reason' - s.387(b) of the Act

• [92] Consideration of s.387(b) of the Act in this matter requires asking whether Mr Turner was notified of "that reason", which is a reference to the valid reason referred to in s 387(a). While I have concluded there was no valid reason, I do not consider the fact that Mr Turner was not notified of a valid reason in this case is a factor that weighs in favour of a finding of unfairness because the Respondent notified Mr Turner of the reasons it considered were valid reasons for his dismissal.

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

• [93] Mr Turner was given an opportunity to respond to the reasons related to conduct that the Respondent gave for his dismissal and as such this is not a factor that weighs in favour of a finding of unfairness.

Any unreasonable refusal by the employer to allow a support person - s.387(d) of the Act

• [94] There was no refusal by the Respondent to allow Mr Turner to have a support person to be present to assist at the discussions relating to the dismissal. In the circumstances of this case, this factor is a neutral consideration.

Warnings regarding unsatisfactory performance - s.387(e) of the Act

• [95] The Respondent did not dismiss Mr Turner on the basis of unsatisfactory performance, so this consideration is not a relevant factor in this case.

Impact of the size of the employer on procedures followed - s.387(f) of the Act and absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g) of the Act

• [96] I have noted that the Respondent had over 1200 employees at the time of Mr Turner's dismissal and that it has submitted s.387(f) of the Act not relevant. I do not consider the Respondent's size impacted on the procedures followed in any discernible respect. In terms of s.387(g), I observe that the Respondent had access to dedicated human resource personnel at the material times. As such, s.387(g) is not a relevant consideration in this case.

• [97] As outlined above, the Respondent emphasised the final warning it gave to Mr Turner on 31 October 2023, which in large part formed the basis for the decision to terminate his employment, because the Respondent asserted this had been issued for similar behaviour. The Respondent further submitted that the behaviour which had resulted in Mr Turner receiving a final warning was again demonstrated and repeated by him at the Toolbox Meeting and thereafter. I have already outlined my views in relation to the status of the final warning and its relevance to these proceedings: there was no direct evidence before the Commission that enables me to be comfortably satisfied that that the final warning was soundly based and validly issued. The Respondent otherwise made no specific submissions with reference to s.387(h) of the Act.[65]

• [98] A Full Bench of the Commission has previously evaluated the behaviour of an applicant who called a colleague a "fucking scab" within the context of protected industrial disputation, which the Full Bench considered had resulted in 'significant tension' in the workplace, and other matters, including the approach of the employer and the applicant's personal circumstances.[66] Even if my findings in relation to valid reason are considered incorrect, I would nonetheless regard Mr Turner's dismissal as having been harsh because it was a disproportional response to the gravity of the behaviour upon which the Respondent acted.

• [99] I hold this view having regard firstly to the context within which the various comments of Mr Turner were made.

• [100] The material before me satisfies me that at the time of the Toolbox Meeting there had been an ongoing industrial dispute going to whether a particular licence was required in order for a worker to be eligible to drive Street cleansing vehicles.[67] It is apparent that Mr Turner and other members of the Street cleansing team maintained that the terms of the Agreement stipulated that only specially licensed drivers are to drive Street cleansing vehicles and they were aggrieved because they believed the Respondent had been permitting an unlicensed driver (or drivers) to operate them. This state of affairs fed into a related dispute relating to whether there were sufficient licensed drivers employed by the Respondent, with Mr Turner maintaining there were not. Mr Turner was aggrieved because he considered there was a shortage which placed licensed drivers, such as himself, under pressure when it came to completing the required workload. Mr Turner gave evidence indicating he was frustrated because he considered that the issues relating to staff numbers and the holding of licences had to be repeatedly raised at toolbox meetings and he felt things were "going around in circles."[68] Mr Turner said that on the day of the Toolbox Meeting he "was under severe pressure at work in regards to what lay ahead of me for the rest of the day" after the Toolbox Meeting had concluded.

• [101] I am also satisfied that Mr Turner had no awareness of the Respondent's Aboriginal Cultural Protocols Guide, that this was effectively conceded by the Respondent and that the Respondent had not required an Acknowledgement of Country to be delivered at the commencement of a toolbox meeting of the Street cleansing team before the Toolbox Meeting on 17 April 2024. I am further satisfied that the Respondent had never advised that it would be introducing the delivery of an Acknowledgement of Country at toolbox meetings before Mr Stanfield, the Acting Coordinator, commenced the delivery of one at the Toolbox Meeting on 17 April 2024.

• [102] I therefore consider it is reasonable to conclude that Mr Turner and his colleagues would most likely have gone into the Toolbox Meeting expecting to simply discuss matters such as staff numbers, their workload and other workplace issues and as I outlined above, I consider that Mr Stanfield's Acknowledgement of Country would have caught the members of the Street cleansing team off guard and that Mr Turner's specific question "are you joking?", together with his reference to the "opening of a letter", were an articulation of a reaction of surprise. I consider it would be unreasonable to regard the incredulity of Mr Turner's reaction to the Acknowledgement of Country without having regard to this context.

• [103] I have also noted Mr Turner's request for "the courtesy to step outside" during an Acknowledgment of Country, a comment to which Ms Fuller and Ms Skinner appear to have taken particular offence, accompanied his commitment that he would not continue to disrupt Acknowledgements of Country going forward. Mr Turner gave evidence at the determinative conference which illustrates both the basis of his 'request' and his acceptance that others may wish to participate in the delivery of Acknowledgements of Country in the Respondent's workplace:

• • "My job is to come to work to drive a street sweeper, and it says here that you've - if you want to do a welcome to the meeting, fine, give people a choice to step outside. As I said not everyone holds the same beliefs. There's what you may hold, and I will stick to that. It's the country we live in, and at the moment we have free speech, and I believe I've got my right to my free speech."[69]

• • "You give people the choice. We live in a free democracy, people have the choice, given the choice. And as I said toolbox meeting we do them once a week. Never been done before. So you want to welcome someone, fine. Give people a choice to stand outside if they don't want to be there for that welcome to the meeting."[70]

• [104] I also observe that for all the offence that Ms Fuller and Ms Skinner took in response to Mr Turner's comments, and Ms Fuller's statement that the Respondent has "very strong expectations that an Acknowledgement of Country is done before all formal meetings",[71] neither Ms Fuller nor Ms Skinner had considered an Acknowledgement of Country was necessary before the formal investigation meeting, at which Mr Turner had an indigenous support person, got underway.

• [105] Having regard to the context within which Mr Turner's comments regarding Acknowledgements of Country were made, I consider the starting point in a proportional response from the Respondent would have been to expose Mr Turner to its Aboriginal Cultural Protocols Guide and the Statement of Commitment 2019.

• [106] Similarly, I consider it is appropriate to assess Mr Turner's comments "I do not dislike the bloke; I hate the bloke. He is a liar" within context. Mr Turner made these comments after Mr Stanfield had said "alright Shaun we know you don't like [name of the colleague]." Although I have found that Mr Turner's comments were puerile, unnecessary, ill-advised and inappropriate, it was Mr Stanfield, not Mr Turner, who chose to introduce the other colleague's name during the discussion about working conditions at the Toolbox Meeting. While I accept Mr Stanfield was conducting the Toolbox Meeting in his capacity as Acting Coordinator and that he therefore may not have fully appreciated the strength of feeling attached to the matters to be discussed, I consider his choice of words directed at an already agitated Mr Turner was clumsy and naïve because he had already anticipated the Toolbox Meeting would be fractious. Within this context, I consider that a warning was warranted in relation to Mr Turner's comments about his colleague.

• [107] I have also taken into account Mr Turner's circumstances. He made reference to having been a long-standing employee of the Respondent and in this regard, I note Mr Turner had approximately 7 years of employment with the Respondent, which included 5 years as a full-time employee. Mr Turner also raised the financial impact of the dismissal, which he said extended to his family and he indicated that his wife's income was supporting him financially. When arguing against the proposed dismissal during the show cause process, Mr Turner asserted that dismissal would negatively affect his future employment prospects because he had physical limitations arising out of a workplace injury. Mr Turner also outlined that he had intended to continue working for the Respondent for at least another 5 years until he reached the retirement age of 65, and he indicated that he had hoped to transition by reducing his hours of work to 3 days per week. While Mr Turner expressed frustration at aspects of his working conditions and the prevailing workplace culture, his testimony also revealed that he found purpose in his work and was committed to getting his work done.

• [108] On balance, having regard to the circumstances of this case, I consider the s.387(h) matters weigh in favour of a finding that Mr Turner's dismissal was unfair.

• [109] I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[72]

• [110] I am not persuaded that the various comments of Mr Turner constitute a valid reason for the termination of his employment. Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of Mr Turner was unreasonable because there was no valid reason to dismiss him, the factors in ss.387(b)-(g) are either neutral or do not weigh in favour of a finding of unfairness and the matters falling under s.387(h) weigh in favour of a finding that Mr Turner's dismissal was unfair. I reiterate that even if the reasons for the dismissal relating to the comments about Acknowledgements of Country and Mr Turner's colleague were regarded as valid, the dismissal was harsh because it was disproportionate having regard to context within which his comments were made and Mr Turner's circumstances. I am therefore satisfied that Mr Turner was unfairly dismissed within the meaning of s.385 of the Act.

• [111] In this case, Mr Turner seeks reinstatement. Section 390 of the Act provides that, if the Commission is satisfied a person was protected from unfair dismissal and determines that that they were unfairly dismissed, as is the case in this matter, it may order either reinstatement or compensation. Compensation can only be ordered, however, if the Commission is satisfied that reinstatement is 'inappropriate' (s.390(3)(a)) and the Commission considers an order for payment of compensation is appropriate in all the circumstances (s.390(3)(b)).

• [112] There was some evidence adduced at the determinative conference regarding remedy but I am not satisfied that it is such as to enable me to properly determine the issues relating to remedy. As such, I will issue directions subsequent to this decision for the filing and service of further material to address the question of what remedy, if any, should be ordered given my conclusion. I also encourage the parties to engage in discussions to see whether an agreement as to remedy might be reached, thereby negating the necessity for any further hearing. I will also facilitate making available a Member of the Commission to assist the parties if the parties so request. Such arrangements can be made by contacting my Chambers.

The parties will shortly receive a Notice of Listing for a directions hearing at which the further directions and case management for this matter will be discussed. In the meantime, I reiterate that I have determined that Mr Turner was unfairly dismissed.

[1] Exhibit A18 - Digital Court Book (DCB) at 44.

[10] See Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092 at [117]; Titan Plant Hire v Van Malsen [2016] FWCFB 5520, 263 IR 1 at [28]; Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [25]- [35].

[11] [2020] FWCFB 1373 at [26].

[27] Evidence to this effect was given on 6 November 2024 by Mr Turner's wife and his brother -in-law.

[29] Transcript 10 October 2024 at PN262-272.

[43] Exhibits A8 - A10, DCB at pp 49-51.

[51] Ms Skinner could not recall when questioned 'was there any other person who raised the events of the meeting held on 17 April with you?' Transcript at PN314-315.

[56] Mr Turner sought to explain this position at the determinative conference by using the hosting of the Olympic Games as an example - see Transcript PN 444.

[66] Mr Michael Hatwell v Esso Australia Pty Ltd T/A Esso [2018] FWCFB 6092 at [167]- [172].

[67] The Agreement refers to 'heavy vehicle' licences (Appendix 1 at Clause 8.4.1) and at the determinative conference the term 'heavy rigid licence' was used.

[68] Transcript PN 356, PN 363 and PN 438.

[72] 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) 94 FCR 561, [1999] FCA 1836, [6] - [7].

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