Fair Work Act 2009_

s 394 - Application for unfair dismissal remedy

Termination of employment - summary dismissal for serious misconduct - shift restructure while employee on workers' compensation - covert surveillance - supervisory role discontinued - employee sought redundancy - photographs taken by employee of improperly stored food - secret recordings of conversations with management - allegations of threatening and intimidating behaviour not substantiated - no valid reason for dismissal - no procedural fairness - dismissal substantively and procedurally unfair - reinstatement inappropriate - compensation to be ordered - parties directed to confer as to consent orders.

[1] Mr Trevor Thomas (the 'applicant') was employed by Newland Food Company Pty Ltd (the 'respondent') from 27 May 2007 until he was dismissed on 8 February 2013. The respondent is a meat processing company with approximately 100-150 employees, depending on seasonal factors. It is located at Ernest Junction, Queensland. While the specifics of the reasons for the applicant's dismissal were not extensively canvassed during the proceeding, they were shortly summarised by the respondent as 'due to ongoing and persistent threats made to numerous staff and management over a considerable period of time'. While the respondent submitted the applicant's conduct was of sufficient seriousness to justify his summary dismissal, he was nevertheless paid four weeks pay in lieu of notice. I proceed on the basis that the applicant was dismissed for serious misconduct.

[2] On 12 February 2013, the applicant filed a claim for reinstatement, pursuant to s 394 of the Fair Work Act 2009 (the 'Act'). The claim was unable to be resolved during conciliation with a Fair Work Conciliator and was referred to me for arbitration.

[3] As I understand it, there are no jurisdictional objections to the applicant's unfair dismissal application. Relevantly:

(a) the application was lodged within the 21 day time limit imposed by s 394(2) of the Act (s 396(a));

(b) the applicant was dismissed at the initiative of the employer (s 385(a) and s 386(1)(a));

(c) the applicant is a person protected from unfair dismissal in that he was covered by an enterprise agreement or an award and had completed the minimum employment period having been engaged for five and a half years (ss 382 and 383);

(d) the applicant's dismissal was not a case of genuine redundancy (s 385(d)), although the issue of whether the applicant's position was redundant when the night shift was closed down, was a matter of some significance in the case; and

(e) the applicant's dismissal was not a case involving the Small Business Fair Dismissal Code, as the respondent employs around 100-150 employees, depending on the season (s 385(c)).

[4] The following persons gave written and/or oral evidence in the proceeding:

● Mr Christopher Wilcox, Labourer, employed by the respondent for two years prior to January 2012;

● Mr Adam Mason, Factory Worker, employed by the respondent for between 12 and 18 months prior to March 2012;and

● Mr Alan Fowler, employed by the respondent for fourteen years prior to August 2012. For 11 of those years, he was the Quality Assurance Manager.

● Ms Suzanne Otto, Operations Manager of the respondent; and

[5] The applicant gave evidence about an injury he suffered at work in August 2007 which resulted in him making a WorkCover claim in October 2007. He eventually underwent surgery on his right elbow in August 2008. After about six to eight weeks he returned to work on light duties in the Quality Assurance Office. He worked there until around March 2010.

[6] The applicant said that during his time in Quality Assurance, he learned all aspects of the role under the Quality Assurance (QA) Manager, Mr Alan Fowler, including internal audits, dealing with the Australian Quarantine and Inspection Service (AQIS), monitoring import/export requirements, overseeing certifications and registrations and monitoring workplace health and safety.

[7] In March 2010, the applicant was offered and accepted the role of Senior Supervisor and Quality Assurance Officer ('QA Officer') on the night shift. In this role, he was responsible for the food preparation cooking areas and the slicing and packaging area. Around 35 employees, including cleaners, worked in these two areas.

[8] In July 2011, the applicant's foot was crushed in a workplace accident. While he continued to experience pain for some months, he was not absent from work. He saw his GP in October 2011 and x-rays revealed he had broken a number of bones in his foot which would heal over time. While he did not make a WorkCover claim, he advised Ms Suzanne Otto, Operations Manager, of the injury and gave her a copy of the x-ray report.

[9] On 19 January 2012, the respondent's General Manager, Mark Dale, informed the applicant that the Company was ceasing the night shift and his position was to end. In further conversations with Mr Dale, the applicant said he was told he would have short term miscellaneous duties (on his existing pay rate) until a new Brisbane office opened, where he would be offered the position of Factory Manager on a salary of $72,000.

[10] On 12 March 2012, the applicant injured his shoulder at work. After a few days of tolerating the pain and continuing to work, he advised Mr Dale of the incident. Mr Dale expressed disbelief at what the applicant told him and accused him of 'trying to pull a WorkCover scam'. The applicant was upset by Mr Dale's threat to fight him in 'every Court in the country' and by his presumption of dishonesty.

[11] The applicant obtained x-rays and doctors' reports and ultimately underwent reconstructive surgery on his shoulder on 30 May 2012. He was certified as totally unfit for work from 19 March 2012 to 19 August 2012, when he was certified to return to work on light duties. This work involved putting stickers on boxes for dispatch.

[12] On 20 August 2012 (the day after returning to work), the applicant received a letter from Ms Otto confirming that his position on night shift was no longer available and that he was to be transferred to a position in the manufacturing section on a lower rate of pay when his light duties ceased. The applicant challenged the respondent's right to forcibly demote him and told Ms Otto he would be inquiring as to his rights. Ms Otto told him the respondent's actions were legal and Mr Gary Stone, the owner of the Company, would fight him 'in every Court in the country' if he challenged the decision.

[13] The applicant claimed that Fair Work Australia (FWA) (as it then was) told him he should have been offered redundancy and he should write to the respondent indicating that as his position no longer existed, he was redundant and eligible for fifteen weeks' redundancy pay when he was cleared by WorkCover. The applicant was advised by WorkCover that the issue of redundancy and his WorkCover claims were two separate issues.

[14] Around this time, he also raised a number of other payroll issues with Ms Otto and Ms Kim Dale. As he was not receiving pay slips, he believed he was getting conflicting information from WorkCover and the respondent. This continued unresolved for some months and he became increasingly frustrated. He was also concerned about Mr Dale and Ms Otto's earlier threats and he asked FWA if he could record conversations with management. As FWA was unsure, the applicant sought advice from the Police at Coonera. He was told he could record conversations as long as he was a party to the conversation.

[15] In November 2012, he decided to record his conversations with Ms Otto and Ms Dale when he spoke to them about his leave and other entitlements. He wanted to protect himself against what the respondent was saying and in light of the earlier legal threats against him. On 6 November 2012, the applicant met Ms Otto and recorded their conversation without her knowledge. When the applicant raised the redundancy issue with her, she replied that their 'hands were tied' until he was rehabilitated. Ms Otto raised issues about the applicant's performance as a supervisor. Apparently, under his supervision, there had been personality conflicts, the worst results for WorkCover cases and the greatest number of sackings. The applicant disagreed and said none of these issues had ever been raised with him. Ms Otto told him that the respondent did not have a senior position for him on either night shift or in QA. All they had available was back in the production line on a lower wage. Ms Otto undertook to take his claim of redundancy back to senior management.

[16] In early January 2013, the applicant wrote a letter of demand to Ms Otto, indicating that he:

[17] On 19 January 2013, the applicant spoke to Ms Otto and again recorded their conversation without her knowledge. She told him his annual leave, sick leave and superannuation claims had all been rectified and redundancy could not be offered while he remained on WorkCover. She also said that legally, the respondent was not required to give him a reply.

[18] On 7 February 2013, the applicant recorded another conversation with Ms Otto, again without her knowledge. He advised her he was fit for normal duties, but maintained he was redundant. Ms Otto was reluctant to put him back on manual duties, as he had not been working normally for six months and there was a risk he might injure himself again and 'we start this merry go round all over again'. She instructed him to stay on light duties until she obtained further advice from senior management. Towards the end of the conversation, the following exchange occurred:

I don't know where we actually stand Trev because, as I said, you've made it quite clear you're going to AQIS, you're going to Safe Foods...

I've turned around and said, 'If Safe Food walked in here...'

Yes, well, why did you take pictures of the birds on the pallets?

I know, but people have come and told me, but as a company, where do we stand as a company? Because, really, you threaten our livelihoods and all theirs by doing it.

Yeah, but the thing is being accused of going to Council too. I had nothing to do with that.

I did not. Whoever said that, you bring them in here and I'll face them.

[19] The applicant said that the above reference to the Council was a complaint made to Council about the respondent having cut a tree down without Council approval. He denied reporting the issue to Council, but did have a joking conversation with the tree loppers about whether they had permission to chop the tree down.

[20] The applicant noted that the respondent opened its Brisbane premises in September 2013, but with only six employees. Nothing had been said about him moving to the Brisbane premises.

[21] On 8 February 2013, the applicant attended a meeting with Ms Otto and Mr Wurth. He recorded the conversation, assuming they were unaware he was doing so. Mr Wurth told him he was there to terminate his employment immediately on the grounds he had threatened, intimidated and made accusations against staff. Mr Wurth had said:

'The question is, you've made a lot of comments to a lot of staff here about you're going to take us down, you're going to hurt us, you're going to do all of these kind of things. I need you to be aware that I will sue you for defamation, I will sue you for damages. I have researched your property holdings and everything else. I'm quite happy to run you through the courts for as long as it takes. We are not about to walk away from our responsibilities. We will take anything you do towards us with the utmost seriousness.'

[22] Mr Wurth also accused him of being a 'vexatious and sophisticated predator of the system'. The applicant said that none of these allegations had ever been made known to him and there was never any investigation of them. He was never given an opportunity to respond to the allegations and he was never provided with any details of them.

[23] The applicant specifically denied each of the allegations set out by the respondent in its response to his unfair dismissal application. He said he:

● had never intentionally sought to have an accident so as to allow him to apply for WorkCover. He had suffered a number of unfortunate injuries that had caused him ongoing pain and discomfort, but he always attempted to return to work as soon as he could;

● denied continually making threats to staff. He had raised concerns about safe food practices, but not to threaten or advance his own interests. In his QA role, he was responsible for product safety and he continued to take this role seriously, even when no longer in the role. He claimed that from time to time, raw meat in cardboard boxes was stored outside the warehouse, without any protection from animals or the elements. When he had seen birds pecking at the product, he had reported it to Management, but product continued to be stored inappropriately. He had told staff, 'If Safe Food walked in now, they would shut the place down!' He had taken photographs of the product, but never had cause to show the photos to anyone;

● denied being given numerous verbal warnings about his performance and denied threatening and intimidating staff. He had only received one verbal warning in 2008/09 in respect to not properly checking sealed product; and

● denied his conduct justified immediate dismissal.

[24] The applicant said that after his dismissal he had obtained work driving a concrete truck on 1 April 2013. He earns $22.10 per hour for up to 50 hours per week. Up to 10 June, he had been paid $10,115.43 gross or $8,263.20 net on an estimated annual salary of $43,689.36.

[25] In a reply statutory declaration, the applicant explained that when he was unfit for work in 2012, he was taking pain killers. However, he was still able to drive, but could not perform normal domestic duties. His doctor had certified him as unfit for any work at all during this period.

[26] The applicant submitted that he only recorded his conversations with Ms Otto and Ms Dale about his leave and other entitlements because he was receiving conflicting information from WorkCover and the Company.

[27] The applicant conceded he had told one person he had been taking photos of the product being picked at by crows. He denied he took the photos to force the respondent's hand over paying him redundancy. Nor did he tell anyone this was his purpose. He never told any management representative about the photographs. Ms Otto had raised the matter with him. He maintained that he raised the safe food issue with QA staff, the Factory Manager and Ms Otto.

[28] The applicant claimed Ms Dale told WorkCover there was no need for him to be retrained because there was a job for him to do. When he increased his hours, he was absent for a week with a virus. The applicant said the respondent never challenged any of his medical certification or his restricted duties. The applicant claimed the QA Officer position was only filled after he commenced light duties and it later became vacant. He believed he had the skills and experience to perform this role.

[29] The applicant denied ever expressing any intention 'to force the Company's hand in respect to his employment'. He reiterated that no allegation made by staff was ever put to him and he was never asked to respond to any allegation. It had never been put to him that he had been 'whingeing about the Company'. No person who worked for the respondent, ever told him that they no longer wished to work with him. He denied threatening to use the photos he had taken, against the Company or working against the Company. He was simply trying to recover from his injury and return to full health. He still believed there were outstanding entitlements owed to him.

[30] The applicant denied making statements to staff that he was seeking a large redundancy payment and was gathering information to ensure the respondent would be forced to pay him out. He agreed he spoke to FWA and he openly told the Company he was entitled to redundancy. He had never been asked to respond to any allegations that he had threatened the livelihoods of other employees and had never given staff any reason not to feel safe working with him.

[31] During the termination meeting, Mr Wurth had not mentioned taking photos or recording conversations and said nothing about him allegedly telling staff that if he did not get a large payout, he would bring the Company down.

[32] The applicant deposed his average weekly income as determined by WorkCover was $1406. He said his conditions of employment in his current job are worse than when he worked for the respondent. His ordinary hours can be up to fifty hours per week.

[33] In cross examination, the applicant was questioned as to why he would take photos of stored product and retain them on his phone without telling anyone. He claimed it was to try to get something done about it. However, Ms Otto had said that she had heard of the photos from other factory staff. The applicant said he had only told Mr Kelvin Rowe.

[34] The applicant acknowledged that prior to working for the respondent, he had been on WorkCover for 'quite a few years' from an earlier workplace back injury around 1994. He had a few operations during this period. The applicant agreed he commenced work with the respondent from May 2007 and went on WorkCover on 1 August 2007 for a year and three months. WorkCover had made an offer of $16,000 as full and final settlement of his claim on 17 January 2013 and he was free to come back to full time work.

[35] The applicant was questioned about his current work as a concrete truck driver. He said his injuries were not inconsistent with his current job, as the technology had changed and he did not need to raise his left arm above his chest at any time. The applicant agreed he had now filed an application with WorkCover for a common law claim, including for ongoing economic loss, of $406,000. The applicant did not believe the $16,000 offer from WorkCover was adequate, because his physio was not finished and he did not think his shoulder was fully recovered. This was despite WorkCover's doctor concluding he was fully recovered. He had not come up with the figure of $406,000, rather his lawyers had.

[36] Returning to the photos, the applicant deposed that he did not know what he was going to do with the photos and had never shown them to anyone or discussed them with anyone. The applicant denied again that he was taking photos to 'blackmail' the Company. He rejected that it was uncommon to do so, because Mr Westwood, Production Manager, had taken photos all the time.

[37] The applicant again denied contacting the Council about the tree removal issue. The day after this incident, the applicant was instructed to sit at the front of the gate and record vehicle registration numbers entering the site.

[38] The applicant reaffirmed that FWA had told him that because he had lost his night shift role, he was redundant. He had also asked the Police if he could tape conversations with Management and was told he could, if he felt threatened. He had felt threatened financially and had been threatened with legal action. However, he had also spoken, on many occasions to Ms Dale regarding correcting his pay and leave entitlements.

[39] The applicant believed that at the time, the Company had positions he could be appointed to, e.g. QA Officer. The applicant claimed he had the right to seek legal advice on his return to work and associated work issues. He believed the Company paid him in lieu of notice because it realised it had made a mistake in summarily dismissing him.

[40] In re-examination, the applicant explained that in 2013 WorkCover had told him his injury was 'stable and stationary', which meant WorkCover would cease paying for physio or any further rehabilitation.

[41] The applicant explained there was a QA job which he was well suited to perform. He had previously performed the tasks of quality assurance, including ensuring Safe Food and AQIS guidelines, conducting audits, checking and preparing the factory.

[42] In the photos taken by a surveillance company engaged by the respondent, the applicant agreed it was him at the petrol station. His injury was to his left shoulder. In a number of still images, he is seen holding a cup of coffee in his left hand, opening his door with his right hand, driving the car with his right hand and putting the pump back with his right hand. He believed none of the photos were inconsistent with the medical advice he had received and acted on at the time. He was about to have surgery on his shoulder a week after the surveillance photos were taken. He claimed his shoulder still gives him pain.

[43] The audio was played of the conversation with Ms Otto on 7 February 2013. This was the only time she had raised the issue of him going to Safe Food or to AQIS or had raised the issue of the photographs he had taken.

[44] Mr Wilcox was employed by the respondent as a labourer on the night shift for two years, until he was made redundant in or about January 2012. Throughout this time, the applicant was his supervisor. Mr Wilcox found him easy going and he respected him as a good supervisor. He was not rude or aggressive. Mr Wilcox's impression was that the applicant was respected by the other staff and no one ever 'bad mouthed' him. Mr Wilcox never felt intimidated or threatened by the applicant. The applicant had never said anything to him to make him fear for his job.

[45] Mr Wilcox said he had never heard the applicant referred to as an 'accident waiting to happen' or heard it said that he would intentionally cause an accident to claim WorkCover. Moreover, Mr Wilcox had not known until these proceedings that the applicant had made a WorkCover claim.

[46] In cross-examination, Mr Wilcox said that the applicant would sometimes come and help the labourers if they were short on the night shift. Mr Wilcox understood the seasonal nature of the business and redundancies would sometimes occur. Mr Wilcox said he had a very good working relationship with the applicant. However, he had had no communication with him since he himself was made redundant in January 2012.

[47] Mr Mason was similarly employed on the night shift for between twelve and eighteen months until the night shift was discontinued. He worked with the applicant, who was his supervisor. Mr Mason found him polite and respectful and never observed him threatening or speaking inappropriately to any member of staff. He believed the applicant was very good at his job and got things done.

[48] Mr Mason believed the applicant was respected by the staff. He never felt intimidated or fearful of him. He had never heard the applicant referred to as an 'accident waiting to happen' or heard it said that he would intentionally cause an accident in order to claim WorkCover.

[49] In cross examination, Mr Mason said he took instructions from both Mr Swan and the applicant. When things needed to get done, the applicant would 'chip in' and help. The workplace was harmonious and there were no conflicts. Mr Mason understood the seasonal nature of the business.

[50] Mr Fowler had worked for the respondent for 14 years as a QA Manager, until he resigned in August 2012. He was responsible for:

[51] In 2009, Ms Otto informed Mr Fowler that the applicant would be working for him on light duties after returning from a workplace injury. The applicant had started as a trainee, and ended up sufficiently skilled to be able to perform the duties of a QA Officer in his own right. Mr Fowler said that the applicant was a very good employee who took his work seriously and applied himself with diligence. He had told Mr Dale of his favourable views of the applicant.

[52] In early 2010, Mr Dale asked Mr Fowler's opinion as to whether the applicant was suitable for appointment as the Night Shift Manager, and he was ultimately engaged. Mr Fowler believed the applicant performed well in this role. Mr Dale was also pleased with his performance as he said so, on more than one occasion, over two years. Mr Fowler never observed the applicant threatening any person.

[53] Mr Fowler had regularly raised the issue of raw meat product being stored outside the warehouse, where it was open to the elements and contamination from birds and their droppings. He believed this was a serious issue which Safe Food and AQIS would have regarded as requiring a 'critical warning'. This was its most serious warning and could result in the plant's shutdown. Mr Fowler said the applicant also raised this issue with him on more than one occasion. He believed that, given the consequences for the respondent's business, the applicant wanted things to be done properly and according to the rules.

[54] In cross examination, Mr Fowler said he had heard that someone had complained about the applicant bullying them, but he had not been instructed by management to take preventative action.

[55] Mr Fowler had heard that the applicant had been taking photos of the stored product, but could not recall who had told him. Mr Fowler never saw the applicant taking any photos, but thought it might be happening. Mr Fowler's role was to report matters, not actually take any actions to correct safety concerns. In any event, he did not believe it was prudent to submit the photos to management, because they knew about the issue.

[56] Mr Fowler said not all reports of safety issues were provided to management. He would act to report on his own behalf. Nothing was be concealed from management and management would have access to all photos taken during the course of the QA officer's work.

[57] In re-examination, Mr Fowler said he had raised these issues with the Factory Production Manager, Mr Tim Westwood. He expected that middle management would handle them and they would not necessarily be raised to senior management levels. He said that sometimes, issues were not resolved to his satisfaction.

[58] Mr Fowler deposed that if there was a quality issue, it should be reported to the Quality Manager or his/her representative. If it is unresolved, the quality and management teams get together. If it is remains unresolved, an NCR (Non-Conformance Report) is prepared by the Quality Assurance Manager (himself).

[59] Ms Otto described the applicant's early employment with the respondent, his work as Night Shift Supervisor and the injuries he received in August 2007 and 12 March 2012. Ms Otto said that when the night shift ceased, the applicant, together with all permanent employees, were offered positions on day shift. While the applicant had expressed interest in a QA role, none was available at the time, nor were any supervisory roles.

[60] In respect to the WorkCover coverage from March 2012, Ms Otto said she had been informed by WorkCover that the applicant had said he was unable to get out of bed and was heavily sedated with painkillers. However, another employee (unnamed) told Ms Otto he had observed the applicant performing normal domestic duties and he was not bedridden. As a result, the respondent engaged a private investigator to covertly photograph and report on the applicant's mobility. Ms Otto said she was disappointed that the applicant had lied by saying he was bedridden when he was not.

[61] Ms Otto referred to her meeting with the applicant on 6 November 2012, in which he had said he had spoken to WorkCover and would prefer a redundancy when cleared by his doctor. Ms Otto told him that redundancy would not be offered until he was fully cleared by WorkCover. The applicant told her he was not suing the Company and just wanted it all over and to leave. However, Ms Otto learned that he had made a civil claim against the Company the same day.

[62] Ms Otto claimed she had repeated reports from staff (unnamed) that the applicant was taking photos which she described as 'acquiring proprietary information about the Company' in order to coerce the Company's hand to pay him a redundancy package. In early January 2013, Ms Otto became aware that WorkCover had offered the applicant $16,000 to settle his claim, but he had rejected it.

[63] Ms Otto said she had been concerned in 2012 at the prospect of returning the applicant to full time manual labour, on the production floor, after his long period on light duties. She was concerned he would aggravate his past injuries. She was also concerned about the applicant's common law claim, his redundancy claim and what employees had told her about the photos. On the applicant's first day back on full time duties, she sought advice from Mr Otto Wurth. She discussed with him that a 'lot of staff' (unnamed) were concerned for their livelihoods, if the applicant used the photos to jeopardise their jobs by taking them to the authorities. This was affecting staff morale and production. Some staff (unnamed) also told Ms Otto that they no longer wished to work with the applicant because of his constant 'whingeing' about the Company. Ms Otto claimed one employee (unnamed) had told her the applicant had said: 'Look at this. I've got these photos. I'm gonna use them against the Company.'

[64] Ms Otto said her concerns about the applicant's intentions were highlighted when a dangerous tree had been removed from the site and the applicant had commented that he was going to contact Council and complain the Company was removing the tree without a permit. As a result, the site was visited by a Council representative, but nothing further was done. Ms Otto declared, 'The Applicant was not working for the company, but rather was working against it.'

[65] Ms Otto said it was Mr Wurth who terminated the applicant's employment. She said he was paid in lieu of notice, outstanding annual leave and four weeks adjustment for the notice period when his classification was altered. Ms Otto confirmed that, due to an oversight, the applicant and other employees had not accrued superannuation or annual leave while on WorkCover. This was corrected as soon as it was brought to the respondent's attention.

[66] In oral evidence, Ms Otto said that, at no time, was she aware her conversations with the applicant were being recorded.

[67] Ms Otto said that when the applicant returned to full time duties, the role of QA Manager required someone with tertiary education. The applicant was not in a position to fulfil this role and there was no other position in QA available at the time.

[68] In further evidence in chief, Ms Otto named Mr Rowe and Ms Casey Galt as two employees who told her the applicant was taking photos of stored product. She claimed Mr Rowe had told her the applicant had said, 'The company is going to pay for what they've done to me.' It was also Ms Galt who told her that Mr Rowe had told her that the applicant had told him about his tree cutting report to Council (hearsay on hearsay on hearsay).

[69] Mr Wurth, during his questioning of Ms Otto, said that the Company had not sought to call Mr Rowe as he had lodged an unfair dismissal application with the Commission for a dismissal based on gross misconduct.

[70] In cross examination, Ms Otto said it was not her decision to dismiss the applicant and she was unsure if the decision was made by Mr Wurth or Mr Stone. However, she and Ms Dale were the people dealing with the applicant on a day to day basis and she would convey any information about him to Mr Wurth.

[71] Ms Otto had known the applicant had two instances of surgery for the injury to his elbow in 2007. He returned to light duties in QA with Mr Fowler. Ms Otto claimed there had been problems with the applicant dealing with other staff, both in QA and when he was promoted to Night Shift Supervisor. She agreed the supervisor's role was an autonomous position, involving supervision of 30-35 employees across manufacturing, production, despatch and cleaning. Ms Otto claimed she discussed the applicant's personal issues with staff with Mr Wurth after the applicant commenced night shift. Ms Otto acknowledged that the applicant was not counselled formally or informally or disciplined for any of these issues. However, there had been informal discussions with him at the time.

[72] In questioning about her conversation with WorkCover concerning the applicant's injury in 2012, she was told that the applicant could not get out of bed, could not drive or do anything and was constantly taking painkillers. As a result of the covert surveillance, Ms Otto formed the view that the applicant had not been truthful about his condition. She said if he could drive, he could have performed light duties for the respondent. She was aware that the applicant had an operation on his shoulder in the following week after the surveillance and the orthopaedic surgeon had said he was unfit for work from 9 May to 31 May 2012 - the period in which the covert surveillance had taken place. Ms Otto conceded that she had not provided the covert surveillance report to WorkCover.

[73] Ms Otto acknowledged that when the night shift ceased, the applicant's position no longer existed and was redundant. She agreed the applicant had not accepted an 18% drop in his pay. However, he had never transferred to the production floor because he was on WorkCover on an average salary of $1406 a week performing light duties. She agreed his hours increased from 5 to 6, then 8 over the latter part of 2012 in accordance with his doctor's recommendation.

[74] Ms Otto further explained the accrual of superannuation and annual leave while on WorkCover and how the respondent immediately addressed the underpayment issues with the applicant and two other employees as soon as it was raised. Ms Otto acknowledged that the documents which were said to show that the applicant's underpayment issue had been addressed, did not make it clear.

[75] Ms Otto said the issue of the applicant's redundancy could not be addressed until he resumed normal duties. The respondent's first duty was to rehabilitate him. Ms Otto said the new role of QA was totally different to the one the applicant had performed in the past, so he was not appropriate for the role vacated by a person named Sandy. She added that the supervisor's role at the new plant in Brisbane had been filled by a person who had been with the Company for years. Ms Otto believed there were roles in the less manual section of the plant, but she had taken no steps with WorkCover or an occupational therapist to identify whether the roles were suitable.

[76] Ms Otto denied 'lining the applicant up' to terminate his employment from as far back as November 2012. She denied an email from Ms Dale to Mr Wurth dated 19 November 2012 was anything other than an inquiry as to how the respondent was intending to handle the applicant's WorkCover claim. During Ms Otto's cross examination, she was shown this email between Ms Dale and Mr Wurth. Because of its significance, I reproduce it in full below:

I had a phone call from Susan Rhodes (case worker) on Friday afternoon. Trevor is reaching the point in his claim where Workcover deem him as 'stable and stationery' he is due to see his specialist again Mid December and Susan believes he will be cleared for normal duties. Her suggestion to us was that an independent occupational therapist is appointed by Workcover to assess Newlands as a workplace & find a suitable role for Trevor to continue his employment.

When I spoke to both Mark & Sue about this on Friday we were all of the same opinion.

If he finds a job here that he feels nice & cozy in we can never get rid of him. What do you think the reply to Susan should be?

Yes, bring in a Occ Therapist & we risk him snaking his way back into a job that will be even hard to get rid of him or No, we let it play out for the last month of his light duties and see what his next move is? He has stated that he doesn't see himself long term with Newland's??? can we head off legal moves or be prepared more if we do go common law? What do you think???

[77] Ms Otto agreed that when trucks were unloaded, the product was sometimes left outside until room could be found inside the warehouse. However, it was never outside for very long. Ms Otto was not aware that Mr Fowler had raised this as an issue. She had heard that the applicant had raised the matter, but not directly from him. Ms Otto agreed the applicant had never threatened her by saying that he would use the photos if he was not paid a redundancy. Nor had he threatened to go to the relevant food safety authorities. In fact, she had raised the matter with him.

[78] When asked about the two persons who told her about the photos - Mr Rowe and Ms Galt - Ms Otto conceded that neither of them had told her they had felt threatened. If they had felt concerned about the respondent's licences, Ms Otto would have assured them that there was no cause for concern. The appropriate course was for the concerns to be dealt with in-house. Ms Otto said that Mr Rowe had told her that the applicant had told him he was going to use the photos against the Company.

[79] Ms Otto accepted that the applicant had denied complaining to the Council about the tree removal issue. In fact, the whole factory had known about the tree removal. She had relied on third hand hearsay and the fact the Council turned up on site, to assume the applicant had made the complaint.

[80] Ms Otto said that when the night shift ceased, all the permanent employees were moved to day shift and the casuals were let go. No one disputed their relocation because it was a seasonal issue - coming into September is the ham season up to Christmas and then the hocks start up in April-May when it picks up again. While noting the night shift had operated for two years, Ms Otto explained that for that period, the Company had a contract to supply bacon to Woolworths. However, when that contract ended, the seasonal pattern did not justify the night shift remaining.

[81] Mr Wurth said his role, amongst other things, was to deal with difficult staff issues. Mr Wurth said he had worked with Ms Otto for twenty years and 'respected her judgment'. He first became aware of the applicant in March 2012 when Ms Otto told him she was expecting to have another problem with WorkCover after the applicant had been on WorkCover from 1 August 2007 to 1 December 2008 and was likely to make another claim. Mr Wurth said that when the applicant returned on light duties, he had received constant calls from Mr Dale, Ms Dale and Ms Otto that they were concerned the applicant was gathering information against the Company to ensure the Company would have no choice but to pay him a large redundancy payout.

[82] Mr Wurth attached a number of emails from Ms Dale about the applicant's WorkCover claim (seemingly, omitting the 19 November 2012 email, see para [76]). When the applicant was due to resume full duties, Mr Wurth said he received a call from Ms Otto advising him that no one wanted to work with him, that he was intending to hurt the Company if he was not paid redundancy and that he was likely to reinjure himself to go back on WorkCover. Mr Wurth's view was that if the applicant was threatening staff and they did not feel safe, this was grounds for dismissal and he would discuss it with the Boss (presumably Mr Gary Stone).

[83] When Mr Wurth spoke to Mr Stone, Mr Stone had said:

'We have no choice this guy could hurt himself, and or someone else, and for sure and certain he will try and hurt us. We just can't afford the risks associated with the guy, I am afraid that you will have to go down there tomorrow and terminate him. Give him four weeks pay and terminate his employment.'

[84] Mr Wurth claimed that Ms Otto told him that the applicant was recording every conversation with management to assist him in getting a large redundancy payment. Mr Wurth was unconcerned by this disclosure as he would be telling the truth. This also proved the applicant was trying to 'set them up'.

[85] During the termination meeting, Mr Wurth said he was terminating the applicant 'due to his intimidating behaviour with the staff, these things included taking photos, recording conversations and telling the staff if he did not get a large payout he would bring the Company down.'. Mr Wurth told him he was 'a vexatious and sophisticated predator of the system' and he noted the applicant's claim for damages of $408,965.40

[86] Mr Wurth understood the applicant is now employed, full time, driving a concrete truck.

[87] In cross examination, Mr Wurth agreed that prior to the termination meeting, he had never met, or spoken to the applicant. Mr Wurth explained that he had established the Company 22 years ago, although it was now owned by his friend, Mr Stone. Mr Wurth claimed to have experience in smallgoods manufacture, including accounting, driving forklifts and paralegal work. He has an Honours degree in Law, but does not practice. Mr Wurth explained that the Group of Companies has operations in Victoria, South Australia, New South Wales and Queensland with about 500 employees in total. Mr Wurth claimed that he and Ms Otto had experience in dealing with HR issues over many years.

[88] Mr Wurth changed his statement to suggest it was Mr Dale who first spoke to him about the applicant, although he thought both Mr Dale and Ms Otto had done so around the same time when he had been visiting the plant. Mr Wurth accepted that Mr Dale had had a conversation with the applicant in which he said, 'If you're trying to pull a WorkCover scam, I'll fight you in every court in the country'. Mr Wurth noted that Mr Dale now works for a competitor of the respondent. Nevertheless, he agreed that Mr Dale could have been subpoenaed for this case.

[89] Mr Wurth deposed that the difficulties Ms Otto said she was having with the applicant were not his WorkCover claim, but the way he treated other staff and the fact that as a supervisor, a number of persons were dismissed or were injured on his watch. As to the 'numerous staff' expressing concern about the applicant, Mr Wurth accepted that Ms Otto now said it was only two employees.

[90] Mr Wurth added that arising from the covert surveillance, there were suspicions the applicant's WorkCover claims were not genuine. He said that once WorkCover accepted the claims, he personally did not have any further concerns. Mr Wurth referred to WorkCover's offer of $16,000 to settle all of the applicant's claims. He agreed he was concerned the applicant had rejected the offer and was proposing a common law action against the respondent. He acknowledged that such an action was not uncommon and was the employee's right. He said the Company and WorkCover would work together on the matter. Mr Wurth accepted that in November 2012, Ms Dale and Ms Otto were seeking meetings with him to discuss 'our next plan of attack' as they were concerned the applicant was heading towards a common law claim. Mr Wurth conceded that WorkCover had suggested an independent occupational therapist be appointed to find the applicant a suitable role, but this had never happened.

[91] Mr Wurth gave a detailed explanation for the wording used in Ms Dale's email to him of 19 November 2012. He agreed that, on its own, it appeared there was a plan to remove the applicant. However, Mr Wurth said the email must be viewed in a context in which two weeks earlier, in a conversation on 12 November 2012, the applicant had said that when he came off WorkCover, he would be seeking a redundancy and that he had no intention of working for the Company again. He claimed he had a right to redundancy, given he had made inquiries with the relevant authorities. Given it had been given an ultimatum and had had threats made against it, Mr Wurth said it was natural for the respondent to consider its options. Mr Wurth now conceded the applicant had not made 'threats', but had proposed a future course of action. Mr Wurth agreed there had been a Company restructure and although the applicant may have believed he was entitled to the same position on the same pay, there were no similar positions available - 'At least he had a job'.

[92] Mr Wurth's evidence was that the respondent believed the applicant was abusing the WorkCover system. He had been on WorkCover for considerable periods of time in 1994, for two years, and between August 2007 and December 2011. When WorkCover had flagged their concerns, the Company worked with WorkCover to address these concerns. Mr Wurth acknowledged that there was no evidence that the claims in 1994, 2007 and 2012 were not legitimate.

[93] Mr Wurth conceded that it was Mr Stone who made the decision to dismiss the applicant. As far as he understood, Mr Stone had never spoken to, or met the applicant. Mr Wurth agreed Mr Stone relied entirely on what he had told him from Ms Otto. Mr Stone was absolutely comfortable with what he was told. He had told Mr Stone the applicant:

● was trying to hurt the Company, if the Company did not give him a redundancy;

● was likely to reinjure himself to go back on WorkCover; and

● that staff genuinely felt threatened by his attempts to damage their livelihoods and they did not feel safe working around him.

When asked why Mr Stone was not called to give evidence, Mr Wurth replied, 'Well, he's a busy man.'

[94] In respect to the termination meeting, Mr Wurth now accepted that the applicant was not dismissed for recording conversations, as this was not known at the time. When it was pointed out that this was inconsistent with evidence he had given earlier, that Ms Otto had told him prior to the termination meeting, that the applicant was recording conversations with Management, Mr Wurth said he told the applicant he was terminated and then asked, 'Do you have any questions?' The applicant replied, 'Who told you this?' Mr Wurth conceded that he had had no intention of changing the decision before the meeting. The decision to dismiss him had been made by Mr Stone because Mr Wurth had told him that if the applicant had known he was to be dismissed, he might jeopardise the business or seek to deliberately injure himself. When I asked Mr Wurth why he just did not suspend the applicant until he responded to the allegations, he replied: 'I have no answer to that, Your Honour.'

[95] After the audiotape of the termination meeting was played, Mr Wurth conceded that he had not mentioned anything to the applicant about taking photos, recording conversations or seeking a large redundancy payout. Further, he had refused to give the applicant particulars of the allegations. He did this because he knew he would be going straight to his solicitors. Mr Wurth had told him the Company would be obtaining affidavits from witnesses about threats. However, when pressed for details, he conceded that none had been obtained. Nevertheless, Mr Wurth knew the persons who had said they had felt threatened, but he had decided not to tell the applicant.

[96] In written submissions, Mr Rich put that the applicant's dismissal was unfair because there was no valid reason for his dismissal. The applicant had not been notified of the reason for his dismissal and he was not provided with an opportunity to respond. He outlined the injuries suffered by the applicant and the events leading up to the termination of employment.

[97] Mr Rich said that the evidence demonstrated that the applicant had injured his shoulder while at work on 12 March 2012. He stopped working on 19 March 2012 and made a WorkCover claim, which was accepted. He was unfit for work from then until 20 August 2012, when he returned on light duties. During this period, the night shift was stopped and a number of staff were made redundant.

[98] Mr Rich said that when the applicant returned on 20 August 2012, he was given a letter by the respondent which set out that his previous role as Leading Hand on the night shift was no longer available. As a consequence, he was to be transferred to manufacturing and his pay was reduced by $3.94 per hour to $18.06 per hour. The applicant made his objections to his demotion known to Ms Otto. When the applicant spoke to FWA some time around September 2012, he was advised that he might be entitled to redundancy.

[99] Mr Rich noted that the applicant then wrote to the respondent on 7 October 2012, indicating that he thought his position was redundant and that, accordingly, he should receive redundancy pay. He discussed this with Ms Otto in October, November and December 2012. In a discussion between them on 6 November 2012, Ms Otto explained to the applicant that the respondent was under an obligation to employ him until he was rehabilitated, that his position had gone, there was no other supervisor's position for him and that the respondent would not be offering him redundancy, because he was reemployed to another position.

[100] Mr Rich said that the applicant wrote to the Company again on 2 January 2013 repeating his claim for payment of redundancy pay. Ms Otto reaffirmed him that the respondent would not be offering redundancy pay while he was on WorkCover and that the respondent was not even legally required to respond to his letter. On 1 February 2013, he advised the respondent that he would be fit to return to work full time from 7 February 2013. When he attended on that date, he was told by Ms Otto that there was no job for him to do full time, that the respondent would not be placing him in the manufacturing section as it believed he would make another workers' compensation claim if it did so.

[101] Mr Rich said that Ms Otto was aware of the issue with meat product stored outside the warehouse because the applicant had raised it with her, as well as the factory manager and QA staff. She had alleged that the applicant had made threats to report the respondent to Safe Food and/or AQIS, but did not provide details of these allegations. In any event, the applicant denied these allegations, but admitted having raised concerns that the respondent did not meet the safety requirements of those authorities. Ms Otto told the applicant to work in the box room that day while the matter was further considered. On 8 February 2013, the Company held a meeting with the applicant where he was terminated on the grounds that he had threatened, intimidated and made accusations against other staff. These allegations had never been put to the applicant until that day.

[102] Mr Rich observed that Ms Otto had accepted, during cross examination, that the applicant's position was redundant in August 2012. Nevertheless, she had told the applicant that Mr Stone would 'fight him in every court in the country' if he did not accept the lower paid position. Ms Otto had also said during cross-examination that she had considered that nothing could be done in relation to the applicant's employment, while he was in receipt of WorkCover benefits. Mr Rich noted that when the applicant returned to work, he had raised concerns in relation to his weekly income which were reported to WorkCover. He had also raised concerns that the respondent had incorrectly calculated his annual leave and that it had failed to supply pay slips. The resolution of these issues took a number of months. The first of these issues were resolved, the others were not.

[103] Mr Rich accepted that the covert surveillance undertaken of the applicant in May 2012 obviously showed that the applicant was not bedridden. However, there was no evidence to indicate that the applicant had ever told WorkCover that he was bedridden due to his injuries or the consumption of painkillers. Rather, he had said that he was unable to work or drive while on painkillers. In any event, he did not take medication constantly. The surveillance photos were consistent with the injury reported by the applicant and the restrictions on using his left shoulder. He had provided Ms Otto with WorkCover medical certificates which set out that he was not fit for work at the time of the covert surveillance. The medical report of Dr Gilpin also confirmed this assessment. Ms Otto's conclusion that the applicant was dishonest as to his medical condition was unreasonable. However, it informed the way in which she later treated the applicant.

[104] Mr Rich drew attention to an email from Ms Dale to Mr Wurth on 19 November 2012 which noted WorkCover's suggestion that an independent occupational therapist assess the respondent's workplace and determine a suitable role for the applicant. Ms Otto denied that anyone had ever suggested this proposal to her. Mr Rich noted the statement by Ms Dale that if the applicant found 'a job here that he feels nice and cozy in we can never get rid of him.'

[105] The applicant had been offered a lump sum settlement by WorkCover dated 28 December 2012, which he rejected. The result was that his weekly compensation and medical benefits were discontinued at the end of January 2013. On or around 1 February 2013, the applicant advised Ms Dale that he would be able to recommence working full time, the following week. Mr Rich submitted that this was the point at which that the respondent believed it was freed from the restrictions it had been under, while the applicant was receiving WorkCover benefits. When the applicant went to work on 7 February 2013 to discuss the matter with Ms Otto, she raised concerns as to the applicant's common law claim, which the applicant confirmed was ongoing. Ms Otto also raised concerns that the applicant would injure himself if put back to work. The applicant responded that he hoped his shoulder would improve and noted that he had returned to work normally after his last injury. Ms Otto also expressed concerns that the applicant might complain to AQIS in that he had already complained to Council about a tree removed by the respondent. The applicant denied both of these allegations.

[106] Mr Rich noted that the very next day, the termination meeting between Mr Wurth and the applicant began with Mr Wurth announcing that the applicant was to be dismissed immediately on the basis that he had threatened, intimidated and made accusations against other staff. Mr Wurth had described the applicant as a 'vexatious and sophisticated predator of the system'.

[107] Mr Rich argued that the applicant's version of events in relation to the photos taken of the meat product stored outside the warehouse, should be preferred to the hearsay version of events described by Ms Otto. Mr Rich drew attention to the fact that the incident allegedly occurred in November 2012, but was relied upon by the respondent to dismiss him in February 2013. He added that Ms Otto had expressed confidence in relation to the respondent's Safe Food practices. There was no evidence to show that the applicant had made 'repeated threats' against staff of the respondent. Ms Otto had accepted that the applicant had not told her that he would be going to AQIS or Safe Food. There was no direct evidence to show that the applicant had told any staff member that he was planning to use the photos to force a redundancy payment. The applicant had said that he had raised the safety issues with Mr Fowler, other QA Managers and even Ms Otto. Both Mr Fowler and Ms Otto had accepted these were appropriate ways of dealing with the issues. He had not mentioned to any of these persons that he had taken and kept photos, but had kept them 'in case it ever became an issue.'

[108] Mr Rich submitted that the further claim that the applicant was 'scamming' the WorkCover system was not reasonable and had no basis in evidence. It was based on a mere generalised feeling of distrust, the fact of his previous claims in 2004 and 2007 and the fact that he had refused the WorkCover lump sum offer and had commenced common law proceedings. There was no evidence to suggest that the 2004 claim did not arise from a genuine injury. The applicant was entitled to choose to prosecute his claim under common law principles, rather than the statutory claims under the workers' compensation legislation. There was no basis to an allegation that he would try to manipulate the system to receive further WorkCover benefits.

[109] Mr Rich drew my attention to the well known joint judgment of McHugh and Gummow JJ in Byrne v Australian Airlines (1995) 185 CLR 410 ('Byrne') setting out the meaning of 'harsh, unjust or unreasonable'. Mr Rich submitted that the termination of the applicant was unjust, as he was not guilty of the misconduct on which the respondent had purported to act. It was also unreasonable because the purported reasons given by the respondent, were not the real reasons as to why he was terminated. In reality, the respondent was motivated by its antipathy to paying him his redundancy entitlements; the fact that he made two worker's compensation claims; that he had been absent arising from injuries he had sustained at work; and the fact that he had been forthright in raising concerns about safe food practices.

[110] Mr Rich put that the reasons given for the applicant's dismissal - his abuse of the WorkCover system and his threatening, intimidatory and accusatory behaviour - were not proven and there was no valid reason for the dismissal (s 387(a)). Mr Rich also submitted that where an employer alleges misconduct as a basis for dismissal, it is subject to the onus of proving that the misconduct took place; See: Yew v ACI Glass Packaging Pty Ltd (1991) 71 IR 201 ('Yew v ACI Glass') and Culpeper v Intercontinental Ship Management Pty Ltd [2004] AIRC 261; (2004) 134 IR 243 ('Culpeper'). The test is not whether the employer believed, on reasonable grounds, that the employee engaged in the misconduct; See: King v Freshmore (Vic) Pty Ltd Dec [2000] AIRC 1019 ('King v Freshmore') and Quinlivan v Norske Skog Paper Mills (Australia) Ltd [2010] FWA 883. Where serious misconduct was alleged, the Commission was required to be satisfied, to the civil standard of proof, set out in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 that the conduct had occurred. The respondent relied on inadmissible hearsay evidence and irrelevant assumptions. It had therefore not made out that the misconduct had occurred to the requisite standard. Mr Rich said that the evidence led to a positive conclusion that the applicant had not engaged in the alleged misconduct and that the dismissal was therefore unjust; See: Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

[111] Mr Rich further submitted that the process undertaken by the respondent was also relevant to the Commission making a determination as to whether the dismissal had been 'harsh, unjust or unreasonable'. He said the applicant had not been provided with sufficient reasons prior to the dismissal. If the respondent had relied on other considerations which it had not identified to the applicant, this would be contrary to s 387(b) of the Act. The respondent failed to respond to requests by the applicant for information as to who he was alleged to have threatened, intimidated or made accusations against. In any event, he strongly denied the allegations. Mr Rich noted that these allegations were repeated in the Form F3 Employer's Response, again with no detail as to how the applicant had engaged in this behaviour or who he had directed it to. The applicant had not been given any opportunity to respond to the allegations made against him (s 387(c)).

[112] The Form F3 also set out new allegations that had never been put to the applicant, including an allegation that he was likely to cause another accident that would allow him to make another WorkCover application. Mr Rich said that the applicant denied this and noted that after a shelf had fallen on his arm in August 2007, he had been diagnosed with Lateral Epicondylitis, which was treated with surgery in August 2008. The applicant had claimed workers' compensation for this injury, but had not done so when he had broken bones in his foot in July 2007 when a rack came down on him. The applicant had also suffered from a rotator cuff tear to his left shoulder in March 2012, which was treated surgically in May 2012. He had claimed workers' compensation in relation to this injury. Allegations by the respondent that the applicant had engaged in 'ambit threats' towards the respondent's staff, and that his conduct was detrimental to the welfare of other staff were not substantiated by the respondent. The applicant also denied receiving 'numerous' verbal warnings. He had received one warning in 2008 for an unrelated performance issue.

[113] The allegations made against the applicant were serious in nature and had supposedly taken place in a period leading up to the point he was dismissed. However, the first time these allegations were put to him was at the meeting of 8 February 2013. He had not been given a chance to respond to the allegations and they had not been appropriately detailed. Over his five years working for the respondent, the applicant had been issued with one warning for a performance issue and he had not been subject to disciplinary action. Indeed, his performance had been looked on favourably by management as he was a diligent employee, although there had been some communication issues which he had had with employees he had been supervising. Over the course of five years, he had made two WorkCover claims and the last injury had meant he had taken five months off work. On returning to work on light duties, he was told that his position of Night Supervisor no longer existed. The respondent unilaterally cut his pay by 18%. The applicant had repeatedly stated his belief that he was entitled to redundancy pay, which the respondent denied. The respondent had said it believed that it was under an obligation to employ the applicant until the light duties program was completed and he could return to work on a full time basis. Once he did so, he was terminated the following day.

[114] Mr Rich noted that the respondent employed over 500 staff and that Mr Wurth would have been able to provide legal advice. Ms Otto and Ms Dale were said to be experts. Accordingly, the respondent had significant resources with which to implement an appropriate process by which to dismiss the applicant (s 387(f), (g)), but had not done so.

[115] Mr Rich identified a number of other matters which he submitted were relevant to the Commission's consideration of whether the dismissal of the applicant had been 'harsh, unjust or unreasonable'. He said that the evidence demonstrated that as early as November 2012, the respondent had manifested an intention to terminate the applicant's employment after he came off WorkCover. The evidence disclosed that the real reasons for the applicant's termination of employment were not legitimate reasons. They arose from the false belief of the respondent that the applicant was abusing the system to his advantage, from his two WorkCover claims, his proposal to commence common law action and his requests for redundancy.

[116] Mr Rich drew my attention to ss 43 and 45 of the Invasion of Privacy Act 1971 (Qld) (the 'IoP Act') and submitted that it was not unlawful for the applicant to have made the recordings of his conversations with management for use in proceedings before a Court or Tribunal. The applicant's evidence demonstrated that Mr Dale had threatened him with legal action in March 2012. Ms Otto had also threatened him by saying that Mr Stone would fight him in every Court in the country so as not to pay his redundancy entitlements. These circumstances, as well as the ongoing issues involving the respondent and WorkCover, were the context in which the applicant decided to record these conversations. He had checked the legality of doing so with the police. It should also be noted that the respondent had been covertly surveilling the applicant at around this time. This issue should be considered in light of the respondent's own conduct.

[117] Mr Rich proposed that the applicant sought orders for reinstatement, continuity of service and lost remuneration. He noted that, pursuant to s 390(3) of the Act, reinstatement is the primary remedy. He submitted that the evidence indicated that the applicant had not engaged in the misconduct alleged by the respondent. Part of the motivation for his termination was the avoidance of payment of redundancy entitlements to the applicant or returning him to a suitable position. Despite the respondent's view of the applicant, there was no reason why trust and confidence could not be restored between the parties; See: David Phillis v Australian Department of Defence AIRC PR937132.

[118] Mr Rich noted that the applicant is 55 years old and submitted that his re-employment prospects at a similar level are slim. The applicant had been unemployed for eight weeks before finding work as a concrete truck driver. The applicant had never consented to the transfer to the new position in manufacturing, which would have involved an 18% pay cut and, in fact, he never took up that position. He had been paid an amount by WorkCover to make his pay up to $1406 per week and this was the amount to which the Commission should have reference when considering any compensation or lost pay.

[119] In oral submissions, Mr Rich reiterated that the applicant was only given reasons for his dismissal at the time of the meeting held on 8 February 2013 with Mr Wurth, who acted on instructions to terminate the applicant immediately. The reason given at the meeting was that he had threatened, intimidated and made accusations against other staff. Mr Wurth had also described the applicant as a 'vexatious and sophisticated predator of the system'. The termination letter refers to threats made against the respondent and the need for it to protect itself. These were the only reasons given prior to the unfair dismissal proceedings being commenced. They were vague, but since then, the respondent had alluded to the applicant using photos taken at the respondent's site to pressure the respondent over his redundancy. There was no evidence of the actual threats made, but there was a suggestion that the applicant might go to the relevant authorities, risking the Company's food safety licensing.

[120] Mr Rich referred to the evidence of Mr Fowler, who had identified the storage of meat outside the warehouse as a serious issue that should be of concern to the respondent. The applicant had correctly raised this with Mr Fowler and there was no threat involved. The applicant's evidence was that he had also raised it with 'Sandy', the QA Officer, 'Jeff', the new QA Manager and Ms Otto. He said that he had taken photos, 'in case it ever became an issue'. He had been seen by Mr Rowe taking the pictures and had said to him, 'Look at that, a crow eating food out of the box. That's against Food Safe regulations'.

[121] Mr Rich submitted that the Commission would not be satisfied that the applicant had engaged in misconduct in relation to making threats against the respondent, to the relevant standard of proof. They were serious allegations - indeed, Mr Wurth referred to them as 'blackmail'.

[122] Mr Rich said that when the termination took place, it was really the WorkCover claims and the common law action that was in the respondent's representatives' minds - Ms Otto had mentioned the day before the termination and Mr Wurth had mentioned it on the day of the termination. There was no evidence that the claims were not legitimate. Rather, it demonstrated that the applicant had worked hard to rehabilitate himself. He referred to the evidence of Mr Fowler who noted that 'after 12 months, being sufficiently skilled to be able to work as a QA officer in his own right and perform all duties with that position ... was a significant achievement.' Accordingly, Mr Rich said the Commission would not be satisfied that there was a valid reason for dismissal.

[123] Mr Rich noted that the evidence demonstrated that the respondent employed 150 staff, rather than 500 staff as stated in its written submissions. However, although Mr Dale was not present during the termination meeting, the Commission should draw the conclusion that the respondent had sufficient resources and experience to deal with the matter appropriately.

[124] Mr Rich then moved onto the subject of the covert recordings made by the applicant. He drew my attention to ss 43 and 45 of the IoP Act. If the relationship of trust and confidence between the parties was affected by the covert recordings, the Commission should be informed by all the facts and circumstances, including the legal framework in which the parties operate. The applicant had been threatened by Mr Dale with legal action in March 2012 in relation to the WorkCover claim. He was also receiving conflicting information from WorkCover and the respondent. He had also been told by the Commission that he was entitled to redundancy and the person who he spoke to recommended that he record the conversations. The applicant had stated in evidence that he made the recordings to protect himself in relation to a conflict about his entitlements. This was a sufficient link to Court proceedings under the IoP Act.

[125] Mr Rich observed that Ms Otto seemed to him to be somebody who would be capable of working with the applicant again. If reinstated, the applicant could be assessed as to what jobs would be appropriate for him to do. Alternatively, he could be offered redundancy. Mr Rich drew my attention to Pasminco Broken Hill Mines [2002] NSWIRComm 300. While the position which the applicant held immediately prior to dismissal no longer existed, the proposal to put him into manufacturing, at a lower rate of pay, had never been accepted by him and he had been performing light duties in the interim. Mr Rich submitted that under the NES, the applicant was also entitled to ten weeks redundancy pay and, because he was over 45 years old, he was entitled to five weeks' notice, of which he had only been paid four. While he was working in a new job, he worked up to fifty hours per week, which could be worked any time between 3am and 8pm.

[126] In written submissions, Mr Wurth put that the applicant had been dismissed due to the persistent threats he had made to staff and management over a period of time. He had been advised in January 2013 that WorkCover could no longer support him. WorkCover had offered him a lump sum, but the applicant had considered this to be insufficient and had instructed his solicitors to engage in civil action against WorkCover.

[127] Mr Wurth said that the applicant had also informed a number of staff members that he was seeking redundancy and a large payout. He intended to coerce the respondent to agree to this with threats to take damning information to certain authorities. In order to achieve his desired outcome, he had taken photos and recorded conversations for that purpose. He had made this known to several staff members.

[128] Mr Wurth claimed the applicant had been notified by the respondent that the nightshift would no longer be operating and all people working on the nightshift would be moved to dayshift positions. The applicant still received a higher rate despite his reduced duties.

[129] Mr Wurth denied that the applicant had been referred to as a 'dead man walking' by other staff. Rather, he was referred to as 'an accident waiting to happen'. Mr Wurth outlined the applicant's history of WorkCover claims as supporting this view. He noted the view of other (unnamed) staff that he would cause himself to be injured by another accident once the WorkCover benefits ceased, allowing him to claim further benefits.

[130] Mr Wurth referred to the applicant's claim that he had been intimidated from going to the relevant authorities in relation to alleged unsafe practices. He said that the respondent was comprehensively and regularly audited by a number of health agencies and that it operated under all relevant approvals that were required. The respondent had informed the applicant's legal representative that it would commence proceedings in relation to defamation if he continued to try to obtain a financial benefit by using such tactics, as they threatened the viability of the respondent and the employment of its workers.

[131] Mr Wurth further claimed that the applicant had been given 'numerous verbal warnings' and 'numerous opportunities to become a valued member of staff'. Nevertheless, the applicant's response was to continue his intimidatory tactics. Mr Wurth noted that the respondent employs between 100-150 employees at different times of the year.

[132] Mr Wurth referred to the applicant's claims that he was entitled to redundancy in light of the respondent's restructure. Mr Wurth directed my attention to the Commission's guide to unfair dismissal laws, which set out that 'Employees who have been demoted, but have no significant reduction in their remuneration or duties and remain employed by the employer who demoted them' were not covered by unfair dismissal laws. The applicant had accepted the alternative position once being notified of the restructure by the respondent. This was another example of the applicant attempting to obtain a financial benefit from a system set up to protect employees' entitlements.

[133] Mr Wurth submitted that there was a valid reason for the applicant's dismissal in that his conduct was detrimental to the welfare of other employees and was sufficiently serious as to justify immediate dismissal. There were no collateral reasons and the respondent had properly paid the applicant's entitlements to annual leave and notice. The applicant was not terminated because of his WorkCover claims.

[134] Mr Wurth referred to the decision in Byrne and submitted that the dismissal of the applicant was just, as he was a threat to himself, his co-staff and the respondent. He was not terminated due to his position being made redundant. He was to return to the new position he had accepted in light of the night shift being discontinued. If the applicant had really sought redundancy payments, he would have prosecuted this claim at the time the new position was offered, rather than work on light duties in receipt of WorkCover benefits.

[135] Mr Wurth submitted that in light of the nature and danger of the applicant's conduct, the respondent was not in a position to give the applicant notice of the reasons for his termination. The termination was just, because the applicant was guilty of the misconduct on which the respondent acted. It was reasonable for the respondent to have drawn this inference from the information it had received. Finally, it was not harsh, because the effect on the personal and economic circumstances of the applicant was not disproportionate to the gravity and seriousness of the applicant's misconduct.

[136] In oral submissions, Mr Wurth played the recording made by the applicant of his meeting with Ms Otto on 6 November 2012. He noted that the applicant had said that he had advised WorkCover that he would be leaving the employ of the respondent once his rehabilitation was complete. He was going to continue to make enquiries in relation to his entitlement to redundancy payments.

[137] Mr Wurth conceded that Ms Otto had given evidence in cross-examination that Mr Rowe was the only person who had spoken to her about the photographs. However, Mr Fowler had also said he was aware that they existed. Regardless, the Company was like a 'little township'. Everyone talked at mealtimes and they all knew what was going on.

[138] Mr Wurth submitted that the issue to be decided in this proceeding was whether the applicant had been fairly dismissed on the basis of gross misconduct. The WorkCover issue was a minor part of this. Really, the misconduct related to the photographs and the manner and reasons for which they were taken. The applicant intended to force a redundancy payment using these photographs. He could not offer any other reason why he had taken them, or why he had failed to provide them to management. Ms Otto had mentioned the photographs in the meeting with the applicant on 7 February 2013, but Mr Wurth accepted that this was not a termination meeting. He also accepted that the termination letter given to the applicant did not mention the photographs.

[139] Mr Wurth noted that the applicant had said in one of the taped recordings that he could not return to full duties for 12 to 18 months. However, he now drives a concrete truck.

[140] In para [3], I dealt with the jurisdictional prerequisites which must be satisfied before an unfair dismissal application is determined on its merits. The remaining matter for the Commission to determine under s 385 of the Act, is whether the applicant's dismissal was 'harsh, unreasonable or unjust' within the meaning of s 387 of the Act. That later section is expressed as follows:

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

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

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

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

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

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

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

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

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

[141] Both parties referred me to the well known passage from Byrne. I agree it is relevant to the consideration of whether a dismissal is 'harsh, unjust or unreasonable' in the present context. Their Honours McHugh and Gummow JJ said at para [128]:

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

[142] As I said at the outset, there is no doubt that this is a case involving allegations of serious misconduct. In this respect, it is helpful to refer to the Act's meaning of serious misconduct where, at s 12, it says:

serious misconduct has the meaning prescribed by the regulations.'

The regulations referred to are r 1.0.7(1) & (2) of the Fair Work Regulations 2009, (the 'Regulations'). It is expressed as follows:

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(ii) the reputation, viability or profitability of the employer's business.'

[143] Presumably, the respondent relies on its allegations that the applicant made persistent threats which caused a serious and imminent risk to the viability of the business and thereby risked the employees' livelihoods and the respondent's ongoing operation. Lucev J recently summarised the meaning of serious misconduct in Wintle v RUC Cementation Mining Contractors Pty Ltd (No.3) [2013] FCCA 694. At paras [97]-[103], His Honour said:

'97. To define "serious misconduct" by reference to its "ordinary meaning" as is done in reg.1.07(1) of Div.2 of Part 1-2 of Ch.1 of the FW Regulations is not of particular assistance in determining whether or not the conduct for which the employee has been terminated is serious misconduct disentitling an employee to the minimum period of notice prescribed under the NES. That is because, both historically and in more modern times, courts have been wary of defining the extent of "misconduct" which justifies dismissal, and where they have attempted the task have made it clear that the misconduct must be sufficiently "serious" as to warrant non-continuation of the contract between employer and employee. Thus, the "ordinary meaning" definition of "serious misconduct" adds little, if anything, to the content of the meaning of "serious misconduct".

98. In Clouston & Co Limited v Corry it was observed that there "is no fixed rule of law defining the degree of misconduct which would justify dismissal".

99. In Laws v London Chronicle (Indicator Newspapers) Ltd it was observed that:

… if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service.

… one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions.

100. In North v Television Corporation Ltd the Australian Industrial Court was called upon to consider the word "misconduct" as used in an industrial award covering journalists. In the joint judgment in North it was observed that:

It is of assistance to consider the expression "misconduct" by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression "misconduct" as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment.

This situation would arise if there were conduct inconsistent with the fulfillment of the express or implied conditions of service. It is conduct of that kind which will justify dismissal at common law.

101. It was also observed in North by a single judge that although the conduct of the journalist concerned was "reprehensible" it fell short of misconduct justifying summary dismissal because it was an isolated incident which occurred "under [the] considerable strain" of preparing for a nightly news bulletin.

102. In Gera v Commonwealth Bank of Australia Ltd the employee's Australian Workplace Agreement provided for termination without pay in lieu of notice for misconduct if the misconduct was serious. In that case it was observed that:

The use of the adjective "serious" imposes an additional requirement before the Bank can terminate employment without notice. Something more than mere misconduct is required.

103. In Gera the Court went on to find that there was no doubt that the sexual or indecent assault of a fellow employee was serious misconduct warranting summary termination without payment in lieu of notice, as it constituted a fundamental breach of an employee's duty, particularly where the employee was a senior employee and mentor to the employee who had been assaulted [footnotes omitted].'

[144] Before leaving the more general statutory provisions, I repeat the statutory instruction in s 381(2) of the Act to apply the principle of a 'fair go all round':

'(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.'

[145] As mentioned earlier, the applicant was summarily dismissed for misconduct; although he was in paid in lieu of notice. Not only does the applicant claim his dismissal was 'harsh, unreasonable and unjust', but he vigorously denies the allegations and claims he was never given any specifics of them or given any opportunity to respond to them. With this in view, the onus is on the respondent to prove, to the Commission's satisfaction, and on the balance of probabilities, that serious misconduct occurred; See: Culpeper and Yew v ACI Glass.

[146] While decided in a different statutory context, the comments of Moore J in Edwards v Giudice [1999] FCA 1836 at paras [4] and [7] are apposite:

'4 In the present case the Full Bench concluded that Commissioner Tolley had failed to determine whether Ms Edwards was guilty of misconduct in the way alleged by Telstra Corporation Ltd and that the Commissioner should have done so as part of ascertaining whether her termination had been harsh, unjust or unreasonable. The approach of the Full Bench was, in my opinion, unexceptionable. When the reason for a termination is based on the misconduct of the employee, the Commission must, if it is an issue in proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s 170CG(3)(a). That is, the Commission must determine whether the alleged conduct took place and what it involved. Section 170CG(3) provides:

"In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and

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

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

(d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and

(e) any other matters that the Commission considers relevant."

7 The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also by relying on the other grounds in paras (b) to (e). However an employee may not concede or admit, for the purposes of the arbitration, that the conduct occurred or may not be prepared to accept that the Commission could assume the conduct occurred. In either situation the employee would be putting in issue whether the conduct occurred. In my opinion the Commission must, in these circumstances, determine whether the conduct occurred as a step in resolving whether there was a valid reason. I do not see how the Commission can move straight to a consideration of whether termination was justified by assuming the conduct did occur. First the Commission would have failed to resolve an issue raised by and relied on by the employee, namely whether the conduct occurred at all. Second the Commission would have failed to make findings by reference to which a Full Bench might have to determine an appeal where the Commission had concluded the termination was harsh unjust or unreasonable on assumed facts and not facts found [my emphasis].'

[147] In King v Freshmore, a Full Bench of the Australian Industrial Relations Commission (AIRC) said at paras [24], [26], [28] and [29]:

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

[26] As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved.

[28] It is apparent from the above extract that his Honour answered the question of whether the alleged misconduct took place on the basis of whether it was reasonably open to the employer to conclude that the employee was guilty of the misconduct which resulted in termination. This is not the correct approach. The Commission's obligation is to determine, for itself and on the basis of the evidence in the proceedings before it, whether the alleged misconduct took place and what it involved.

[29] In our view the Senior Deputy President failed to determine for himself whether Mr King was guilty of misconduct in the way alleged by Freshmore and he should have done so as part of determining whether the termination had been harsh, unjust or unreasonable. When the reason for a termination is based on the misconduct of the employee the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The absence of such a finding leads us to conclude that the member below failed to properly determine whether there was a valid reason for the termination of Mr King's employment [my emphasis].'

[148] The meaning of 'valid reason' in s 387(a) is drawn from the judgment of North J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 ('Selvachandran'). This meaning has been applied by members of the Commission and its predecessors for many years:

'In its context in s 170DE(1), the adjective ''valid'' should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ''be applied in a practical, commonsense way to ensure that'' the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.

The requirements of s 170DE(1) should not impose a severe barrier to the right of an employer to dismiss an employee. Nevertheless, in cases similar to the one before the Court, the application of s 170DE(1) should always be considered and decided before consideration is given to the additional limitations on the right of an employer to terminate the employment of an employee imposed by ss 170DE(2) and 170DC. The purpose of these two provisions is to confer a greater protection on employees from termination of employment. In this regard the provisions are not very different from the consequences flowing from an award provision similar to that considered in Byrne v Australian Airlines Ltd [1994] FCA 888; (1995) 47 FCR 300; 52 IR 10 and discussed in Johns. There procedural fairness was held to have been imported by implication as well as the substantive protection conferred by the award. The statutory provisions now apply, by reason of the Act, with minor exceptions, to all employees.'

[149] Even accepting that a finding of serious misconduct may have been open to the respondent, it must not be confused with the statutory language, which still requires the Commission to find that there was, or was not, a valid reason for dismissal (s 387(a)). In Royal Melbourne Institute of Technology v Geoffrey Asher [2010] FWAFB 1200, a Full Bench of Fair Work Australia (FWA) held at para [16]:

'[16] In the circumstances of this matter the University purported to terminate Dr Asher's employment for serious misconduct within the meaning of that term in the University's enterprise agreement. If it successfully established that Dr Asher had engaged in serious misconduct it would necessarily follow that there was a valid reason for the dismissal. However, the converse is not true. As established by Annetta, the question that needed to be considered was whether there was a "valid reason" in the Selvachandran sense - whether the reason was sound, defensible or well founded. Whether it also amounted to serious misconduct may well be a factor relating to the overall characterisation of the termination but it was not an essential requirement in the determination of whether a valid reason exists.'

[150] Subsections (b) - (e) of s 387 of the Act might be broadly characterised as issues relevant to whether a dismissed employee was afforded procedural fairness. The term 'natural justice' also springs to mind. Mr Rich persuasively argued that the applicant had been denied procedural fairness in a number of significant respects. There can be little doubt that he was correct. I shall come back to these issues shortly. It is trite to observe that, even if there was a valid reason for an employee's dismissal, the dismissal may still be held to be unfair, if the employee was not afforded procedural fairness. This has been a long held industrial principle adopted and applied by this Commission, its predecessors, other Courts, industrial tribunals and the High Court. In the High Court case of Byrne, supra above, their Honours McHugh and Gummow JJ said at para [130]:

'130. That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable (168). But the question under cl 11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking to the first issue before there is seen to be any need to enter upon the second.'

[151] To highlight the importance of procedural fairness issues, I cite three further authorities on the subject in an unfair dismissal case. In Crozier v Palazzo Corporation Pty Limited t/as Noble Storage and Transport (2000) 98 IR 137 ('Crozier v Palazzo'), a Full Bench of the AIRC said at para [73]:

'As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment.'

[152] In Wadey v YMCA Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay 'lip service' to giving an employee an opportunity to respond to allegations concerning the employee's conduct. His Honour said:

'In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.'

[153] Nevertheless, procedural fairness steps should be applied in a commonsense and practical way. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1 ('Gibson'), Wilcox CJ said at 7:

'Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. 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 of the section.'

[154] In addition, it goes without saying that any issue or issues of procedural unfairness may not be of such significance as to outweigh the substantive reason/s for an employee's dismissal, particularly in cases of misconduct where the proven misconduct is of such gravity as to outweigh any other considerations such as age, length of service, contrition and issues of procedural unfairness generally.

[155] It is important at the outset to make clear what this case is not about. Firstly, by all accounts, including those of the management, the applicant's performance during his supervision of the night shift, was very good. I note Mr Fowler's evidence in this regard and his comments on what Mr Dale had said to him on more than one occasion (see [51]), But as Mr Wurth observed when questioning the applicant's work colleagues on the night shift, this case it not about that period of employment. Rather, it was the applicant's insistence that he was redundant when the night shift was abolished and that he was entitled to 15 weeks redundancy pay, which seemed to be the trigger for his change in attitude at work.

[156] Given that he was to be demoted and suffer a reduction in pay, it is perhaps unsurprising that he was less than enthusiastic with his changed circumstances. However, did his post-night shift conduct descend to the level described by the respondent as persistent, threatening and intimidating behaviour towards other staff and management? I shall return to this question later, suffice to observe at this point, that the respondent's evidentiary case in support of its reasons for the applicant's dismissal, was very weak indeed.

[157] Secondly, the applicant's workplace injury history, while regrettable, appears on its face, to be genuine and is not relevant to the reasons for the applicant's dismissal. He was, it seems, off work for more time than he was at work during his 5 � years of employment with the respondent. Unsurprisingly, the respondent was suspicious that the applicant's injuries may not have been genuine, or at least, not as serious as he made out. Yet, it is difficult to reconcile these suspicions with the fact that the applicant underwent a number of surgeries for his injuries and they were plainly verified by unchallenged medical opinion. In addition, Mr Rich did a neat job of demolishing covert surveillance photos tendered in evidence in re-examination of the applicant. Significantly, however, there was no corroborative evidence that the applicant had intended to deliberately injure himself in order to claim WorkCover benefits or that anyone had directly said the applicant was 'an accident waiting to happen'.

[158] For my part, I struggle with the concept of how an employee could set out to deliberately injure him or herself, without careful and meticulous planning. Of course, I readily acknowledge that some employees may seek to rort the system once having been actually injured or alleged to have been injured. Some can even fool their doctors. But this is a far cry from plotting a scheme to set up an injury in the first place, which might result in disastrous unintended consequences. In any event, it does not make any logical sense why the applicant would have wanted to go back on WorkCover, when he had accepted that until he was fully recovered, his redundancy claim would not be considered. If this was the priority for him, it was in his best interests to get fully back to work and not delay a decision on redundancy by going back on WorkCover benefits.

[159] Notwithstanding all of the above comments, the applicant's injury history is not the subject of evidentiary contest in this case, nor am I burdened with making findings on these aspects of the applicant's employment history. That said, it was plain enough that the respondent's attitude to the applicant and, in my view, its ultimate decision to dismiss him, was unashamedly coloured by the view that he was 'milking' the WorkCover system. They even said so. Mr Wurth told the applicant in the termination meeting that he was a 'vexatious and sophisticated predator of the system.'

[160] The respondent's claim that the applicant had been taking photos of meat product stored outside the warehouse in order to use, or threaten to use the photos to pressure the respondent over his claims for redundancy, was a central feature of this case. The word 'blackmail' was frequently invoked during the proceeding.

[161] The respondent drew the link between using the photos to cause problems for the respondent with the safety authorities and threatening the livelihoods of his colleagues if the authorities forced the closure of the plant. Presumably, this was the threatening and intimidatory behaviour allegedly directed towards staff and Management. A number of observations should be made about this issue, as it relates directly to whether there was a valid reason for the applicant's dismissal.

1. There was no evidence that the applicant had used the photos in the manner suggested by the respondent. That is not to say that he might have intended to do so, although I note he vigorously denied this was his intention.

2. It is curious that the applicant could not say why he took the photos and stored them in his phone without informing anyone, particularly someone in QA or management.

3. The applicant could give no explanation as to why he did not provide the photos to management to justify his concerns over safety.

4. It is unlikely the applicant was attempting to hide his taking of the photos, as on his evidence, he told Mr Rowe. Ms Otto certainly became aware of him having done so from some sources, other than the applicant himself.

5. Mr Fowler's evidence was that it was not uncommon to take photos of examples involving the safety of product.

[162] Overarching all of these observations, is the fact that the respondent did not dispute that the product was unsafely stored. It appears that it was more concerned as to the applicant's ultimate purpose in taking the photos, rather than addressing the serious issue of safety that he had photographed. There was no disputing Mr Fowler's evidence that Safe Food or AQIS could have visited the site and identified the safety breach as 'critical' with the possibility the factory could have been shut down. But this was hardly the applicant's fault.

[163] Whether the applicant's motives were truly altruistic or ulterior is not really the point. The fact was, the respondent had no evidence that he was taking the photos to 'blackmail' the Company and no one had informed anyone in management that they had heard or believed that this was his intent.

[164] Generally, the statements and evidence of Ms Otto and Mr Wurth are replete with inferences, assumptions, corrections, guesses, false conclusions, reliance on hearsay and just blatant prejudice against the applicant. While I accept that there was some difficulties with the respondent constructing a proper evidentiary case (Mr Dale had defected to a competitor), the case ultimately presented by them did little credit to the two persons who, it was said, were experienced in managing people in the workplace. Both had over twenty years in the smallgoods industry and Mr Wurth has an Honours degree in Law.

[165] Had they received proper advice, I am sure they would have been told the respondent's case was doomed to fail. There was simply no evidentiary grounds for concluding that the applicant had threatened the viability of the Company or the livelihoods of the employees. There was no valid reason for the applicant's dismissal. The alleged serious misconduct could not be proven. The decision to dismiss him fits neatly into the words of North J in Selvachandran as being capricious, ill founded, fanciful, spiteful and prejudiced.

[166] The respondent strongly criticised the applicant for pursuing redundancy when his Night Shift position disappeared. In my view, the applicant was perfectly entitled to raise this issue, given he was to be demoted and suffer a reduction in pay of 18%. Significantly though, his job had disappeared and was no longer required to be performed by anyone. This is a classic definition of redundancy. I note Ms Otto's evidence in which even she had the good sense to agree the applicant's position was, in fact, redundant. Whether the applicant was entitled to a full redundancy or whether the employer might have argued to reduce the redundancy pay entitlements, even to nil, pursuant to ss 119 and 120 of the Act, is obviously speculative. Nevertheless, it seems to me that the applicant was entirely within his rights to question whether he was entitled to redundancy.

[167] Mr Wurth submitted that if he was serious about redundancy, he should have prosecuted this claim at the time the new position was offered. This was disingenuous nonsense. It flies in the face of evidence, including that of the respondent itself, that it would not consider his redundancy claim until he was fully cleared by WorkCover. The applicant was dong no more than what the respondent had demanded of him.

[168] Ultimately, in my opinion, the respondent's case was utterly compromised by the very revealing email from Ms Dale - HR Advisor, no less - to Mr Wurth of 19 November 2012. There is no escaping the conclusion that the respondent had set out on a course of conduct to get rid of the applicant on whatever spurious or unsubstantiated basis they could. Added to this, was the appalling failure of the respondent to afford the applicant any modicum of procedural fairness. These failures were so self-evident and manifestly unjust, that I have trouble understanding how the respondent seriously believed it could get away with it. Perhaps it thought the applicant would just go away. How wrong it was, particularly given that it knew he was very likely to take the respondent on.

[169] Having heard all the evidence in the case, I took the highly unusual course of directing the parties to confer as to settlement. I said at PN1201-1202:

'I've heard evidence, which is uncontested, from the Company which causes me grave concern and I'm going to suggest, Mr Wurth, that you have a discussion with Mr Rich about settlement of this matter because I don't think your company will like a decision from this commission. I have heard the evidence. I am not making a final decision but I can tell you you will be unhappy with the outcome. So it's a public document. So I'm going to suggest you have a discussion. I'll take the morning break now.

You're perfectly entitled not to settle the matter - and I ask Mr Rich also to be conscious that his client will also, because of the evidence that (indistinct) be criticised. That will be a weighing up exercise - but the authorities are very plain about procedural fairness, and it's clear to me that in this case there has been none. So with those comments I ask you both to be realistic about settlement. Otherwise I will hear final submissions - and you can tell me whatever you wish to put in final submissions, and then I'll reserve my decision and you can await publication with trepidation.'

Regrettably, the matter did not settle and I am forced to publish the unfortunate and embarrassing findings that I make in this case against the respondent's conduct.

[170] I have earlier concluded that there was no valid reason for the applicant's dismissal (s 387(a)). The first time the applicant heard he was to be dismissed and notified of invalid reasons for his dismissal was in the termination meeting of 8 February 2013 (s 387(b)). It is obvious, even on the respondent's version of events, that the applicant was given no opportunity, let alone a reasonable opportunity, to respond to the allegations made against him. He was taken completely by surprise and given no warning as to what the termination meeting was about (s 387(c)).

[171] In a brazenly stupid submission, Mr Wurth put that the applicant was not warned of his dismissal, because the respondent feared he would take some retaliatory action, such as injuring himself. Even if there was a legitimate concern the applicant might do some damage to himself or the respondent, the obvious answer, which happens frequently, was to have suspended the applicant and remove him from the premises until a proper investigation was conducted. When I asked Mr Wurth why this course was not adopted, his only reply was, 'I have no answer to that Your Honour.'

[172] Obviously, the applicant was given no opportunity to ask for a support person to be present because he did not know what the meeting was about (s 387(d)). To the extent the respondent relied on a generalised notion of unsatisfactory performance, there is no evidence that the applicant was warned about his performance. Indeed, he was led to believe that his performance as Night Shift Supervisor was very good, despite what was subsequently claimed by the respondent, which had never been put to him (s 387(e)).

[173] One other matter is of some concern. It would seem that the decision to dismiss the applicant was made by the respondent's owner, Mr Gary Stone. Notwithstanding Mr Stone had never met or spoken to the applicant, there can be no doubt that Mr Stone acted entirely on Mr Wurth's recommendation. He made no independent inquiries as to the accuracy of Mr Wurth's information and merely instructed Mr Wurth to dismiss the applicant forthwith. When asked why the respondent did not call Mr Stone to give evidence in the proceeding, Mr Wurth replied, 'Well, he is a very busy man.' That Mr Wurth was no more than the messenger (although the informant which caused the applicant's dismissal) and Mr Stone simply accepted Mr Wurth's say so, without even bothering to seek the applicant's explanation for what amounted to unsubstantiated allegations, is a very sad reflection of the respondent's approach to workplace relations. I trust it is not repeated. The excuse of Mr Stone being 'a very busy man' is insulting to the Commission.

[174] The respondent is a reasonably large employer with dedicated internal human resource management specialists (ss 387(f), (g)). It beggars belief that with this level of experience and expertise, that the respondent's handling of the applicant's legitimate safety concerns, his later acknowledged underpayment issues and his ultimate dismissal, were so appallingly unfair and manifestly unjust. I regard these matters as weighing heavily against the respondent's case. Other relevant matters have been discussed by me earlier in this decision (s 387(h)).

[175] The applicant seeks reinstatement to his former position, without loss of continuity and payment of lost wages. Determining a remedy for unfair dismissal is governed by the provisions of Ch 3, Part 3-2, Div 4 of the Act, which are set out as follows:

390 When the FWC may order remedy for unfair dismissal

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

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

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

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

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

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

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

(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(b) the period of the person's continuous service with the employer, or (if subsection (1A) applies) the associated entity.

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

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

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.'

[176] It will be immediately apparent that determining a remedy for an unfairly dismissed employee involves a preliminary finding by the Commission that it is satisfied that reinstatement is inappropriate. It is only then that the Commission can move on to consider compensation as the alternative to reinstatement; See: Holcim (Australia) Pty Ltd v Serafini [2011] FWAFB 7794.

[177] From the legislative scheme, there can be no doubting that the primary remedy for unfair dismissal is reinstatement. This arises from both the requirement on the Commission to positively find that reinstatement is inappropriate (s 390(3)) and from the express objects of Part 3-2 of the Act (s 381(1)(c)) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

[178] The well known authority dealing with the practicality of reinstatement is that found in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. There, a Full Bench of the Industrial Relations Court of Australia said at pages 191-192:

'If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.'

[179] Given my earlier comments and findings, I have given earnest consideration to the reinstatement of the applicant, notwithstanding there may have been some contest as to what position the applicant should be reinstated to, or whether a position commensurate to his Night Shift Supervisor role exists. However, there is one overwhelming reason why I am dissuaded from that course and have determined that it would be inappropriate to reinstate the applicant.

[180] During the course of the proceeding, I was astonished to learn that, not only is it not unlawful, in Queensland, to secretly tape private conversations, but there is State legislation, the IoP Act, which expressly permits this to take place, subject to some limitations. s 43(1) of the IoP Act makes it an offence to use a listening device to overhear, record, monitor or listen to a private conversation. However, s 43(2) does not apply where:

(a) where the person using the listening device is a party to the private conversation; or

(b) to the unintentional hearing of a private conversation by means of a telephone; or

(c) to or in relation to the use of any listening device by-

(i) an officer employed in the service of the Commonwealth in relation to customs authorised by a warrant under the hand of the Comptroller-General of Customs under the Customs Act 1901 (Cwlth) to use a listening device in the performance of the officer's duty; or

(ii) a person employed in connection with the security of the Commonwealth when acting in the performance of the person's duty under an Act passed by the Parliament of the Commonwealth to the security of the Commonwealth; or

(d) to or in relation to the use of a listening device by a police officer or another person under a provision of an Act authorising the use of a listening device.

[181] S 45(1) makes it an offence to communicate or publish any record made of a private conversation, directly or indirectly. However, pursuant to s 45(2), s 45(1) does not apply where the communication or publication:

(a) is made to another party to the private conversation or with the consent, express or implied, of all other parties to the private conversation, being parties referred to in section 42(2)(a));

(b) is made in the course of legal proceedings; or

(ii) in the performance of a duty of the person making the communication or publication; or

(iii) for the protection of the lawful interests of that person; or

(d) is made to a person who has, or is believed, on reasonable grounds, by the person making the communication or publication to have, such an interest in the private conversation as to make the communication or publication reasonable under the circumstances in which it is made; or

(e) is made by a person who used the listening device to overhear, record, monitor, or listen to the private conversation under s 43(2)(c) or (d).

[182] Subsection (3) defines 'legal proceedings' above as including:

(a) proceedings (whether civil or criminal) in or before any court; and

(c) proceedings before any court, tribunal or person (including any inquiry, examination, or arbitration) in which evidence is or may be given; and

(d) any part of legal proceedings [my emphasis].

[183] It seems it is also permissible to tape private conversations in Western Australia, where each party to the conversation consents or one party to the conversation consents and it is reasonably necessary for the protection of lawful interests of that principal party; See: Surveillance Devices Act 1998 (WA) and Thompson v John Holland Group Pty Ltd [2012] FWA 10363 (at paras [113]-[135]).

[184] It was not suggested by the respondent that the applicant's secret recordings of their conversations was unlawful. Nor was it submitted that the tapes of the conversations were inadmissible in these proceedings. Indeed, both parties relied on various aspects of the conversations in support of their respective arguments. However, there is a more serious issue to be considered in this respect.

[185] In my view, there could hardly be an act which strikes at the heart of the employment relationship, such as to shatter any chance of re-establishing the trust and confidence necessary to maintain that relationship, than the secret recording by an employee of conversations he or she has with management. Although there may be sound reasons why an employee (or an employer for that matter) believes it is necessary to secretly tape workplace conversations, I consider such an act to be well outside the normal working environment and contrary to the well understood necessity for trust and fidelity in the relationship between employee and employer.

[186] Given this demonstrates a complete breakdown in the employment relationship, it cannot militate in favour of reinstatement. The applicant contends that it was reasonable for him to secretly tape the conversations because he felt threatened by the respondent, who had said he would fight him in 'every court in the land' and that he was doing so to protect his lawful interests (s 45(2)(c)(iii)). I am not sure the legislation comprehended the concept of workplace disciplinary action as a reasonable basis for secretly taping conversations or that the conversations themselves were necessary to protect the applicant's lawful interests.

[187] There are a few authorities of this Commission and its predecessors which bear on me in this matter and confirm my doubts as to reinstatement. SDP Drake in Lever v Australian Nuclear Science and Technology Organisation [2009] AIRC 784, said at paras [102]-[103]:

'[102] Mr Jauncey referred to a judgement of the Supreme Court of New South Wales in See v Hardman [45] where Justice Bryson said:

"……In terms of ordinary behaviour and conduct when engaged in negotiations I see no room to doubt that it is an impropriety to make a secret recording of a conversation bearing on some business interest or other important interest, such as in this case entitlements to interests in a deceased person's estate. Such behaviour is of an altogether different kind to making notes during the course of the conversation where others present can observe that notes are being taken, and it is also altogether different to preparing for one's own use after a conversation a memorandum or note of what one then remembers took place.

In ordinary business and social behaviour there is, in my understanding, a very strong expectation that there will not be a secret recording of a conversation but that any process of recording will be revealed, so as to give those recorded an opportunity to decide whether or not they will participate. If I conjure up for myself what could be expected to happen at the meeting of 10 May 2001 or what could be expected to happen in ordinary and reasonable conduct of persons in this community participating in a business meeting of any kind, I feel no doubt that discovery in the course of a meeting that a secret recording was being made would disrupt proceedings, with a high likelihood that the discovery would lead to the immediate withdrawal of those not involved in making the recording. The view of ordinary reasonable people in Australian society that behaviour of a particular kind is an impropriety is what makes it an impropriety. What the community thinks about secret recordings is, in my view, altogether clear and furnishes the explanation for the enactment of legislation such as the Listening Devices Act, notwithstanding the availability of a quite different view of the significance of making secret recordings.

I understand, both from such events as the enactment of the Listening Devices Act and also from my general understanding of values and behaviour in the community of which I must take notice, that such conduct is not tolerated and is regarded as an extreme impropriety……."

[103] Applying ordinary Australian community standards I do not accept that any employee or any employer would be content to have any meeting they were attending secretly tape recorded. The ordinary conduct of personal, business and working relationships in our community is predicated on the basis that if there is to be any record of a meeting it will be agreed in advance**.** Anything else is quite properly described as sneaky**.** Its very sneakiness makes it abhorrent to ordinary persons dealing with each other in a proper fashion.'

[188] More recently, Cloghan C in Schwenke v Silcar Pty Ltd T/A Silcar Energy Solutions [2013] FWC 4513 said at paras [62]-[66] and [69]:

'[62] I now proceed on the basis, as I have found, that Mr Schwenke recorded his performance meeting on 27 November 2012

[63] First, there is no dispute that the Applicant did not seek or obtain the permission of Mr Green and Mr Harrington to have the performance discussion recorded. This omission raises two issues for employers generally. In the first instance, the employee is not being open and transparent in their actions with the employer. Secondly, if such an action becomes known to the employer, the necessity of trust and confidence in the employment relationship is undermined. Henceforth, the integrity or probity of the employee's actions is not free from doubt for the employer.

[64] It is not uncommon in performance/disciplinary discussions for both parties to bring along paper and pen. For both parties such actions are readily observable and free from inequity. Such actions are rarely objected to and deemed fair.

[65] Secretly recorded discussions are objectionable because one party is being deceptive and purposefully misleading the other party.

[66] In considering this issue, what comes to mind is the expression "fair go all round". Put shortly, how would Mr Schwenke, or for this matter any employee, feel if their conversations were being secretly recorded by an employer?

[69] I am satisfied that the secret recording of Mr Schwenke's performance discussion was contrary to his duty of good faith or fidelity to the Employer, and undermined the mutual trust and confidence required in the employment relationship.'

[189] In one sense, it is irrelevant that the applicant was acting lawfully when taping the conversations between himself and Ms Otto and Mr Wurth. This is so for two reasons. Firstly, many acts of an employee are perfectly legal, such as refusing to comply with the lawful and reasonable directions of management, refusing to work with particular persons or refusing to take directions from a particular person in authority, refusing to comply with Company policies on drug and alcohol testing, safety or other policies - even abusing the boss. However, the fact that an act is lawful in the wider community sense, does not mean that the same act in the workplace would not constitute a valid reason for an employee's dismissal. I think the above examples serve to demonstrate that point.

[190] In any event, it is not unusual for the mutual taping of disciplinary meetings, including termination of employment meetings. It seemed to me that if the applicant wished to protect his future legal interests, it may well have been in both parties' interests to record disciplinary meetings. It raises, in my mind, the question of whether there was an intention by the applicant to entrap Ms Otto and Mr Wurth. Of course, as it emerged, there was little need to rely on what was said in these conversations, as the objective facts and circumstances were plainly in the applicant's favour.

[191] Secondly, the applicant was not dismissed for secretly taping the conversations, although it is patently clear the respondent was less than thrilled by having its conversations secretly recorded. I don't blame it. As was earlier mentioned, in Mr Wurth's evidence, he conceded that he had never told the applicant that he was being dismissed for recording the conversations. The allegation was never put to the applicant, notwithstanding Mr Wurth claimed Ms Otto had told him the applicant was likely to be recording their conversations. Having raised it, let alone not asking for the applicant to respond to the allegation, it cannot now be used to reconstruct reasons for the applicant's dismissal.

[192] Section 392, outlined earlier, requires the Commission to take into account each of the matters set out in subsection (2), including all of the circumstances of the case and any other matter the Commission considers relevant (subsection (2)(g)). I shall deal with each of the other matters in turn.

Viability of employer's enterprise (subsection (2)(a))

[193] While I have no evidence as to the effect of any order of compensation will have on the viability of the respondent's enterprise, it must be conceded it is a reasonably large employer. It is unlikely there would be any negative impact on the respondent's viability. It is a neutral factor in this case.

Employee's length of service (subsection (2)(b)

[194] The applicant had five and a half years service with the respondent, although as I earlier observed, he was away from work or on light duties for more time than he was actually performing a full range of duties. In any event, he was not a long serving employee. This is also a neutral factor in this case.

Remuneration likely to have been received if the employee was not dismissed (subsection (2)(c))

[195] As has been commented on many times, by other members of the Commission, this is a notoriously difficult speculative judgment to make; not the least so in this case. On the one hand, I am not satisfied that the applicant could not have been offered another supervisory or equivalent role, such as in quality assurance, where by all accounts on night shift, he performed well and appeared happy with his job, recognition and status. It might be expected he would have continued his employment for some considerable period of time.

[196] On the other hand, the respondent was determined to get rid of the applicant and if it had not been when it did, it is likely to have been not long thereafter. This is notwithstanding it had no valid reason for dismissal and the applicant appeared to have been satisfied with being made redundant with 15 weeks pay. On balance, I am prepared to accept that the applicant would have continued to be employed for a further six months. The calculation should be based on his earnings as the Night Shift Supervisor.

[197] It is to the applicant's credit that he has sought to mitigate his loss and obtained work as a concrete truck driver, albeit on a lesser wage and for longer hours than he enjoyed when working for the respondent.

Remuneration earned since the employee's dismissal and income earned between the making of this order and the actual compensation (subsections (2)(e) and (f))

[198] I consider it is appropriate to deduct any remuneration earned by the applicant in his capacity as a concrete truck driver or any remuneration earned by him, including any WorkCover payments, since 7 February 2013 until the requirement of the respondent to pay the applicant the compensation ordered by the Commission.

[199] Notwithstanding the applicant was summarily dismissed, it was accepted that he received four weeks pay in lieu of notice (he was actually entitled to five weeks notice, if he was dismissed for reasons, other than serious misconduct justifying instant dismissal). I consider the four weeks pay in lieu of notice should be taken into account. I have also had regard to the applicant's age (55 years) and his unfortunate injury history, which would not be positive factors in the applicant securing commensurate alternative employment.

[200] Subsection (3) of s 392 requires the Commission to reduce the amount it would otherwise order for any misconduct of the employee. As I have already determined that there was no valid reason for the applicant's dismissal and there was no misconduct of the applicant, no deduction is made under this heading.

[201] For completeness, the compensation I propose to order does not include any component for shock, distress or humiliation or any other analogous hurt caused by the applicant's dismissal.

[202] In summary then, pursuant to s 387 of the Act, I find that the applicant's dismissal on 8 February 2013 was 'harsh, unreasonable and unjust'. There was no valid reason for the applicant's dismissal and he was afforded no procedural fairness. His dismissal was unfair, both substantively and procedurally.

[203] Pursuant to s 390(3) of the Act, I find that reinstatement of the applicant would be inappropriate and compensation should be ordered. Compensation shall be calculated by deducting from an amount of 26 weeks pay based on his earnings earned before dismissal as the Night Shift Supervisor, less four weeks notice and remuneration earned between dismissal up to the actual payment of compensation. The parties are directed to confer as to the appropriate amount of compensation reflecting this decision and provide draft consent orders within seven days. Any disagreement as to the proposed orders shall be referred to the Commission for final determination. Any request in this respect should be forwarded to my Chambers within seven days.

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