Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Applicant terminated at the Respondent's initiative - Covert recording in the workplace - Dismissed for conduct - Application dismissed.

[1] This matter concerns an application pursuant to s.394 of the Fair Work Act 2009 (the Act) by Mr Tiberiu Cristian Mocanu who alleges that the termination of his employment from Kone Elevators Pty Ltd (Kone) was unfair.

[2] Mr Mocanu commenced employment at Kone on 4 May 2015 as 'Kone Doors Operations Manager' until his employment was terminated on 14 August 2017, a period approximating two years and three months. Mr Mocanu was employed on a full time basis, and worked predominately in Brisbane.

[3] Mr Mocanu submitted his dismissal was unfair because whilst he was on approved medical leave, Kone made unreasonable demands for him to comply with orders outside of business hours and dismissed him three days prior to his return to work date.

[4] Kone submitted Mr Mocanu was dismissed because he failed on multiple occasions to comply with clear and reasonable directions to provide evidence to the company in order for it to fully investigate his allegations made of bullying and harassment.

[5] The matter was listed before a Fair Work Commission Conciliator on 28 September 2017, however the conciliation was unsuccessful. The matter was subsequently allocated to my chambers and proceeded to Hearing on 5 and 6 December 2018.

[6] On 20 November 2017 Mr Mocanu filed a Form F51 - Application for orders requiring a person to attend before the Fair Work Commission - requesting orders for several witnesses to attend the Hearing.

[7] On 24 November 2017 the matter was listed for a telephone mention where I addressed Mr Mocanu's F51 application.

[8] Kone objected to the orders being made on the basis that it had concerns with a number of witnesses Mr Mocanu sought to give evidence at the Commission. Kone submitted its position was that the valid reason for termination was solely because of Mr Mocanu's conduct, that is, he failed to follow lawful and reasonable directions to produce covert recordings.

[9] Kone submitted it was concerned Mr Mocanu was attempting to reopen an investigation into alleged bullying against him by Mr Wilson and Mr Pao. Kone submitted it failed to see how any of the witnesses other than Ms Nottage-Barnes would be in a position to give evidence on the issue of whether there was a valid reason for Mr Mocanu's termination. Kone submitted ordering the attendance of the other witnesses would lead to evidence being heard that was completely and wholly unrelated to the issue of whether there was a valid reason.

[10] Mr Mocanu submitted his termination letter referred to several issues, including to alleged underperformance. He submitted that all of the witnesses listed in his Form F51 had information to provide in relation to that issue. Mr Mocanu submitted that Kone also submitted other reasons for his dismissal in its F3 Response in addition to the fact he failed to comply with a lawful and reasonable direction.

[11] I advised the parties that as Kone's material had not yet been filed, I was not inclined to issue orders for further persons to be required to attend at that stage. I advised I would decide whether or not I wished to revisit my view after considering Kone's material as it came in.

[12] I foreshadowed my preliminary view that for the balance of convenience and the sake of efficiency, I may be inclined to proceed to conduct the matter on the basis that evidence would be heard in relation to the defence on which Kone relied, that being of whether Mr Mocanu failed to follow a lawful and reasonable direction. If Kone were to fail on that point then Mr Mocanu would succeed. However, if after hearing the evidence in relation to the narrow issue, I was of the opinion I needed to hear more evidence, I would make the decision at the time.

[13] The issue was again raised by the parties at the commencement of the Hearing on 5 December 2017.

[14] Mr Mocanu sought orders for witnesses to provide evidence on factual disputes that appeared outside the reasons Kone relied upon. Of the witnesses whose evidence related to the more confined approach adopted for matter, these witnesses indicated they would attend willingly. I did not grant orders for attendance.

[15] I adopted the same approach towards the issues raised in Mr Mocanu's submissions. For the sake of efficiency the scope of the Hearing was limited to factual disputes surrounding Mr Mocanu's conduct surrounding his failure to produce the covert recordings. Essentially, Kone conceded all other avenues to demonstrate the fairness of their dismissal of Mr Mocanu.

[16] Mr Mocanu made a request for the matter to be dealt with by way of determinative conference. Mr Mocanu submitted:

"by having my matter heard at a more informal setting I would reduce the possibility of jeopardizing (sic) my case for failing to meet any technical procedural requirements as opposed to having my matter considered on real facts and substantial evidence."[1]

[17] Kone submitted that there were a number of complex issues in the matter and therefore formal procedures such as cross examination would be the most efficient way to deal with the evidence. It submitted overall the matter would be dealt with more efficiently in a more formal setting such as a Hearing.

[18] I again dealt with this issue at the Mention on 24 November 2017.

[19] Taking into account the fact Kone objected to the matter being dealt with as a conference, and that there were numerous factual disputes that would require cross examination, I accepted Kone's submissions that this matter be dealt with by way of Hearing rather than by way of determinative conference.

[20] Kone sought leave to be legally represented on the basis it would enable the matter to be dealt with more efficiently given the complexity of the matter, it was unable to represent itself effectively and it would be unfair to not allow the Kone to be represented taking into account fairness between the parties in the same matter.

[21] Mr Mocanu filed lengthy submissions consisting of some 35 pages opposing legal representation of Kone. Mr Mocanu's submissions pertained to the fact the matter was not sufficiently complex to warrant Kone being represented, legal representation of Kone would lead to an imbalance as Mr Mocanu was self-represented and that Kone's legal representatives to date had caused him to suffer from health issues.

[22] I dealt with this issue at the Mention on 24 November 2017.

[23] I was not persuaded by Kone's submissions in relation to s.596(2)(b) and (c), that it was unable to represent itself effectively or that it would be unfair to not allow the Kone to be represented taking into account fairness between the parties in the same matter.

[24] However, I was satisfied that allowing legal representation would allow the matter to be dealt with more efficiently due to the complexity of the matter. The matter had been made somewhat complex by the wealth of material that had been filed by Mr Mocanu. Despite Kone's argument that the issue was a narrow one, I was inclined to the view that the question as to whether or not an employer deciding to terminate an employee on the basis they refused to comply with an order whilst they were on medical leave to produce documents or recordings, gave rise to the potential for complex legal argument.

[25] I was not inclined to be persuaded by Mr Mocanu's submission that the impact on his health caused by correspondence from Kone's legal representatives was a sufficient basis not to grant leave on this occasion.

[26] I therefore granted leave under s.596(2)(a) for Kone to be legally represented.

[27] On 7 March 2017 Minna Rouru, a Kone employee, received an email from Mr Mocanu containing a formal complaint alleging he had been bullied by two managers at Kone, Mr John Wilson and Mr Wattana Pao (the formal complaint).[2]

[28] On 8 March 2017, Ms Kayleen Nottage-Barnes, Human Resources Director at Kone for Australia and New Zealand, became aware of the formal complaint and subsequently commenced a formal investigation into the alleged bullying. Ms Nottage-Barnes emailed Mr Mocanu to inform him she would be his point of contact regarding the formal complaint.[3]

[29] On 13 March 2017 a meeting was arranged between Ms Nottage-Barnes and Mr Mocanu to discuss the formal complaint, and scheduled by agreement to take place on 14 March 2017.[4] Mr Mocanu confirmed via email his attendance for the arranged meeting.[5] The following day, on 14 March Mr Mocanu sent an email to Ms Nottage-Barnes indicating he was not "in the right frame of mind to have a discussion related to work matters at the moment".[6]

[30] On 21 March 2017 Ms Nottage-Barnes wrote an email to Mr Mocanu to remind him she was there to speak to about the formal complaint when he felt comfortable to do so.[7] The following day, Mr Mocanu replied indicating he wished to be in a "better state of mind" before discussing the formal complaint.[8]

[31] On 6 June 2017 Ms Sianne Bennett, then Human Resources Manager at Kone, sent correspondence to Mr Mocanu enquiring about his return to work. Mr Mocanu had been absent from work for over three months by this time.[9]

[32] On 20 June 2017 Mr Mocanu sent an email to Ms Bennett indicating that he had in his possession a full recording of meetings with Mr Wilson and Mr Pao (the covert recordings). Mr Mocanu claimed the covert recordings provided "clear factual evidence that [he had] been bullied, intimidated and put under extreme duress." Mr Mocanu included in this email several quoted extracts of text (the transcript extracts) he claimed to have drawn from the covert recordings. Mr Mocanu indicated he wished for Kone to put the extracts to Mr Wilson and Mr Pao, and have them formally confirm or deny their veracity.[10]

[33] On 22 June 2017 Ms Bennett emailed Mr Mocanu with a request that he produce the covert recordings (the first request).[11]

[34] On 27 June 2017 Mr Mocanu replied to Ms Bennett again requesting that she put the transcript extracts to Mr Wilson and Mr Pao. Mr Mocanu also requested information on the processes involved in Kone's internal investigation of his formal bullying complaint. Mr Mocanu did not produce the covert recordings to Kone in this email.[12]

[35] On 28 June 2017 Ms Nottage-Barnes sent an email to Mr Mocanu with an outline of some of the processes she intended to use to investigate the formal complaint. Ms Nottage-Barnes then reiterated the request for the production of the covert recordings[13] (the second request).

[36] On 4 July 2017 Mr Mocanu restated his request for Mr Wilson and Mr Pao to confirm or deny the veracity of the transcript extracts before he provided the covert recordings to Kone. Mr Mocanu made further enquiries about the Kone investigation process, and raised queries over potential outcomes of the investigation including the dismissal of Mr Wilson and Mr Pao.[14]

[37] On 11 July 2017 Ms Nottage-Barnes sent a formal letter by registered post to Mr Mocanu explaining why she viewed the extracts as insufficient to base her formal investigations on. The letter then directed Mr Mocanu to produce the covert recordings to Kone. The letter made explicit mention of Mr Mocanu's continued employment at Kone being at risk should he fail to produce the covert recordings per the directions. Ms Nottage-Barnes also wrote an email to Mr Mocanu advising him that the letter had been sent.[15]

[38] On 21 July 2017 Mr Mocanu sent an email to Ms Nottage-Barnes advising her to "email me a copy as I haven't received the letter".[16]

[39] On 23 July 2017 Ms Nottage-Barnes emailed Mr Mocanu and informed him that the letter was sent to his address listed on Kone employment files. Ms Nottage-Barnes advised Mr Mocanu that the courier advised Kone the letter was refused. This email contained an attached scanned photocopy of the letter sent 11 July 2017 (the first direction).[17]

[40] On 6 August 2017 Mr Mocanu replied asking for details of Ms Nottage-Barnes' investigation process and the outcomes of Kone's investigations. In this reply, Mr Mocanu claimed the letter sent 11 July 2017 did not arrive, and requested that the courier be investigated.

[41] Mr Mocanu responded to Kone's direction to produce the covert recordings by stating, "When I am satisfied that I will get such a fair and respectful internal hearing, I will gladly hand over the recordings to prove my allegations."[18] Mr Mocanu further stated:

"grant me confidence to hand over my recordings to you, and that you will utilise this fairly and impartially, in order to be more balanced in your correspondence, may I ask you to please outline the outcomes you intend to offer when I provide you with the recordings, with regards to the following:

What will be the outcome and course of action of my bullying case?

What will be the outcome and course of action for Wattana Pao for bullying me?

What will be the outcome and course of action for Wattana Pao for lying and misleading KONE by denying my allegations once recording will be provided?

What will be the outcome and course of action for John Wilson for bullying me?

What will be the outcome and course of action for John Wilson for lying and misleading KONE by denying my allegations once the recording will be provided?

6. What support will I be given by Kone to integrate me back into the work, my schedule return on 21.08.17".[19]

"Upon KONE displaying a more fair and impartial approach to my matters of concern, where you can clearly outline answers to all of my questions above, so that I can have the confidence to hand over these recordigns (sic)".[20]

[42] On 7 August 2017 Mr Mocanu sent a further email to Ms Nottage-Barnes requesting the email addresses of her direct managers, Mr Wilson's and Mr Pao's direct managers.[21]

[43] On 8 August 2017 Ms Nottage-Barnes sent an email to Mr Mocanu informing him that Kone had arranged a courier to be sent to his home between certain hours on 10 August 2017 to collect the covert recordings. The email directed Mr Mocanu to produce the covert recordings to the courier on a USB stick (the final direction). The email stated that Mr Mocanu would be remunerated for the cost of the USB stick. The email stated that failure to follow the final direction would result in Mr Mocanu's summary dismissal for failure to follow a lawful direction by his employer.[22]

[44] On 10 August 2017 Kone arranged for a courier to collect a USB containing the covert recordings from Mr Mocanu's residence. The courier was unable to take the delivery.[23]

[45] On 11 August 2017 Mr Mocanu emailed Ms Nottage-Barnes indicating he would wait until 21 August 2017 when he returned to work to provide the covert recordings on certain conditions, instead of complying with the final direction. Those conditions were set out as the arranging of a meeting between himself, presumably a Kone representative, and Mr Wilson and Mr Pao. Mr Mocanu stated, "Should all parties cooperate in this meeting I can then provide you with the recordings in person, which I will bring to this meeting".[24]

[46] On 14 August 2017 Ms Nottage-Barnes sent an email to Mr Mocanu enclosing a termination letter. The letter was also sent via registered post. The letter of termination summarily dismissed Mr Mocanu for failing to follow lawful directions, with regard to covertly recording managers, and with regard to past performance.[25]

[47] On 15 August 2017 Kone received an email from the courier service that the courier pickup on 10 August 2017 at approximately 2:15PM was futile.

[48] Kone acknowledges that Mr Mocanu was dismissed at their initiative.

[49] The s.387 of the Act states 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."

[50] Kone submitted that the sole reason it relied on for summarily dismissing Mr Mocanu was his failure to follow its lawful directions to produce the covert recordings. Kone submitted it gave two requests to Mr Mocanu to produce the recordings, followed by two formal directions, all of which he failed to comply with.

[51] Kone submitted it had sound reasons to request the electronic copies of the covert recordings, namely:

• (a) "The Respondent needed to finalise an investigation into matters concerning the Applicant's allegations of misconduct by his managers, including matters that the Applicant asserts in his own evidence were relevant to the Respondent's investigations; and to conduct those investigations properly and fairly, it wished to review alleged evidence the Applicant asserts he had of critical conversations with those managers, specifically an alleged covert recording of a meeting he had with them;

• (b) The Respondent needed to determine what, if any, disciplinary action should be taken against the Applicant, in respect of the covert recordings, because:

  • (1) The Applicant had, based upon information he supplied to the Respondent, recorded the meetings without his managers' knowledge and consent; and

(2) The Respondent wished to determine whether the Applicant had misled Ms Nottage-Barnes during the course of her investigation, by providing her with a document referred to by the Applicant as a 'transcript', by comparing the contents of the actual recording with that purported transcript."[26]

[52] Kone submitted that Mr Mocanu's failure to comply with its clear directives amounted to serious misconduct.

[53] Further, Kone submitted the failure to produce the covert recordings degraded the relationship of trust between Mr Mocanu and Kone to the extent that a relationship of employment was no longer possible.

[54] Mr Mocanu submitted he was uncertain as to what was the alleged misconduct that resulted in his dismissal. Mr Mocanu submitted he was on approved medical leave with a return to work plan managed by his doctor and psychologist, and was due back at work on 21 August 2017.

[55] Mr Mocanu submitted on 11 August 2017, he requested an 'open and transparent' meeting with HR, Mr Wilson and Mr Pao and his support person, to discuss issues in relation to his bullying claims. He submitted that one day later he received a termination letter from Kone.

[56] Mr Mocanu submitted that his dismissal was unfair, as he was dismissed whilst on approved medical leave, three days prior to his scheduled return to work and because he had 'openly offered a solution by requesting to have an open and transparent meeting' on 21 August.

[57] Mr Mocanu submitted Kone was forceful in attempting to make him comply with multiple unrealistic directions whilst he was still on medical leave, rehabilitating and working on a plan to return to work.

[58] Kone submitted that despite Mr Mocanu's submission that he would have supplied the recordings when he was due back to work on 21 August 2017, Mr Mocanu had no legal basis to refuse Kone's requests for the covert recordings until his return to work, and/or to arbitrarily dictate to Kone when he would provide the covert recordings that related to his complaint. Kone submitted that to do so was a breach of Mr Mocanu's express and implied duties under his employment contract.

[59] Mr Mocanu provided inconsistent and various reasons for his failure to follow Kone's directions. Initially, he responded to the company's request for the recordings:

"I feel pressured to provide you the recordings when I do not believe it is needed at this stage as transcripts have been provided."[27]

[60] Under cross examination, Mr Mocanu conceded that he did not provide the recordings because he was dissatisfied with the course of investigation undertaken by Kone. Mr Mocanu's claim that he was not obliged to follow directions whilst on medical leave was not given to Kone prior to his termination.

[61] Mr Mocanu admitted in cross examination that he lacked trust in Kone, and said "it wasn't fair" that he had been asked to provide evidence to Kone but he did not receive evidence from the company.[28] It was put to Mr Mocanu in cross examination that he was clearly setting conditions upon his compliance with the order. Mr Hampson referred to an email in evidence, in which Mr Mocanu sought an answer from Kone as to the consequences for Mr Pao and Mr Wilson.

[62] I accept the reason Kone relied upon to dismiss Mr Mocanu was his failure to follow its lawful directions to produce the covert recordings.

[63] I am unconvinced by Mr Mocanu's submissions that he was unable to comply with Kone's direction due to his illness.

[64] As noted above, Mr Mocanu's reasons for non-compliance were inconsistent and the issue of his illness was not even raised in his responses to Kone. By way of explanation, Mr Mocanu said that he was 'being medicated' at the time which may have caused 'gaps and issues' and that he believed Ms Nottage-Barnes as a HR director would have already been aware that he would not have been obliged to give her the recordings.

[65] Mr Mocanu was obviously able to operate a computer and draft emails with attachments. Therefore, it seems obvious that he was not prevented by his illness from complying with Kone's requests or the first direction.

[66] Further, as part of the second direction, Kone arranged for a courier to pick up the covert recordings from Mr Mocanu's residence. I can only conclude that Mr Mocanu's illness provided no obstacle to him complying with Kone's requests.

[67] I am unconvinced by Mr Mocanu's contentions that he was unable, or it was improper to expect him, to be present during the courier's delivery window.

[68] I am unconvinced by Mr Mocanu's contention that he was without any means to store the recording for delivery to the courier. Mr Mocanu clearly had a device to store the covert recording for his own purposes, and could have produced that device to the courier. If the recording was stored on a phone he could have said so.

[69] I am unconvinced by Mr Mocanu's submissions that he should not have had to hand over the covert recordings as he was not being paid at the time. Under cross examination, he contended he 'was under no obligation to provide anything at the time. [He] was under medical leave'.[29] This reasoning for failing to follow Kone's directions was not mentioned in any of Mr Mocanu's email correspondence and is therefore unconvincing from the outset when raised in the course of the hearing.

[70] The respondent accurately likened their directions for Mr Mocanu to provide the covert recordings while he was unpaid to asking an employee on leave to email back some passcodes or return some keys.

[71] Purcell v Tullet Prebon (Aust) Pty Ltd[30] per Handley AJA at [12] succinctly sets out that "An employee is bound to obey the lawful and reasonable directions of the employer".

[72] The contract of employment between Mr Mocanu and Kone at the time of the directions to produce the covert recordings remained on foot.

[73] The direction to produce the covert recording was not illegal, nor was it unreasonable. Ms Nottage-Barnes during cross examination explained how, from her perspective, it would have been unreasonable to not direct Mr Mocanu to produce the recordings given his demand that Kone investigate the alleged bullies. This investigation could have resulted in the dismissal of two other Kone staff members and therefore, where there was conclusive proof, I concur it would have been unreasonable to not seek to obtain that proof.

[74] I am satisfied that Kone's directions to Mr Mocanu were made while the employment contract between them was effective, that they were lawful, and that they were reasonable. I therefore do not accept Mr Mocanu's submission that it was unreasonable to expect him to comply with the direction due to his not being paid at the time of the directions.

[75] I am unconvinced by Mr Mocanu's submissions that it was unreasonable for Kone to not wait a short time until return to work on 21 August 2017 for him to produce the covert recordings.

[76] Kone submitted that the premise of this contention by Mr Mocanu is flawed because it was not a short time between the direction to produce the recordings and his return to work, and he did not make an unconditional offer to hand over the covert recordings on his return.

[77] The time from the first request for the production of the covert recordings to Mr Mocanu's return to work was a period of almost three months. From the first direction to Mr Mocanu's return to work was a period of approximately one month.

[78] It seems that within the context of the time involved in this matter, Kone had waited patiently for Mr Mocanu to comply and was not unreasonable in being unwilling to wait beyond the final timeline set out in the final direction.

[79] Kone submitted that furthering their unwillingness to wait until Mr Mocanu's return to work was that Mr Mocanu's offer to produce the covert recording was conditional. Mr Mocanu required a meeting with the alleged bullies, and cooperation during that meeting, before he would produce the covert recordings.

[80] I am satisfied that within the broader context of the timeframes involved, and with the conditional nature of Mr Mocanu's offer to produce the recordings on his return to work, Kone was not unreasonable in not waiting for Mr Mocanu to return to work before dismissing him.

[81] I am therefore satisfied that Kone acted upon valid reasoning for dismissing Mr Mocanu.

[82] Kone pointed to Thomas v Newland Food Company Pty Ltd [2013] FWC 8220 per Sams DP at [189] where on similar facts it was concluded that, "the fact that an act is lawful in the wider community sense, does to mean that the same act in the workplace would not constitute a valid reason for an employee's dismissal". This extract was in relation to the covert recording of two managers during a disciplinary meeting by an employee and is therefore relevant.

[83] I am unconvinced by Mr Mocanu's submissions that because the recordings were not illegal, they are not a form of misconduct.

[84] However, Mr Mocanu was not dismissed for making the recordings. Instead, I am satisfied that the making of the recordings was simply one of many factors which went towards undermining the trust in the relationship to such an extent that Kone considered that the dismissal was appropriate.

[85] Therefore, greater regard has been given to Mr Mocanu's undermining of the formal bullying investigation as the accepted reason for Mr Mocanu's dismissal.

[86] Of great importance to Kone's HR team was that the continued employment of two longstanding employees was at risk.

[87] Ms Nottage-Barnes clearly indicated her team took Mr Mocanu's allegations of bullying very seriously. She explained that the production of the hard proof contained in Mr Mocanu's recordings was integral for the proper conducting of the formal bullying investigation.

[88] The extracts provided by Mr Mocanu appeared to only serve to cause misunderstanding in the formal bullying investigation, as apparently when put to the alleged bullies evoked only expressions of confusion. Mr Mocanu was requesting a fair investigation while refusing to produce the key evidence in that investigation.

[89] Ms Nottage-Barnes explained how Mr Mocanu's refusal to provide the covert recordings in combination with the alleged bullies disbelief at the extracts when they were put to them led Ms Nottage-Barnes to have some suspicion as to the veracity of the extracts Mr Mocanu was quoting. At the very least, Ms Nottage-Barnes felt that the context surrounding the extracts was important and being withheld uncooperatively by Mr Mocanu.

[90] Mr Mocanu admitted in cross examination, and it is clear from his email correspondence, that he was aware that the alleged bullies may be fired if it was found they had bullied him, and indeed, sought that Kone consider 'reviewing and concluding' the employment of Mr Pao and Mr Wilson. Mr Mocanu was aware of the gravity of his accusations, and ought to have been aware that Kone would take those accusations very seriously. I am satisfied that deliberately frustrating an investigation of such gravity constitutes serious misconduct on the part of Mr Mocanu.

[91] Mr Mocanu was notified of his dismissal in writing in his termination letter dated 14 August 2017. I am satisfied that Mr Mocanu had been aware his employment was at risk for failing to provide the covert recordings since the first direction.

[92] I am satisfied that Mr Mocanu had the opportunity to provide the covert recordings at any time during the relevant period. Mr Mocanu was aware of the risk to his employment since the first direction and was given numerous opportunities to respond since that time.

[93] Correspondence was via email since Mr Mocanu was on leave. There is no evidence to suggest Kone denied Mr Mocanu access to a support person.

[94] Kone asserts that as the dismissal was for matters of conduct, warnings with respect to performance are contended to be irrelevant.

[95] I accept Kone's position is that the conduct alone of Mr Mocanu was so serious as to warrant termination.

[96] Kone is not a small business employer. I therefore accept Kone's submission that the size of their enterprise is not relevant.

[97] Kone employs a dedicated HR team. I therefore accept Kone's submission that human resources considerations are not relevant.

[98] I accept Kone's submission that Mr Mocanu's failure to comply was deliberate and that this increased the severity of the failure to comply. Mr Mocanu would have known of the risk to his employment since at least the first direction and still chose to repeatedly request a confirmation or denial of his extracted quotes and to make contingent upon the fulfilment of that request, his provision of the recordings.

[99] I accept Kone was reasonable to continue to press for the covert recordings. The investigation was one of great gravity. The employment of two other employees was potentially put at risk by Mr Mocanu's allegations and it was inappropriate for Mr Mocanu to use intimidating language in correspondence to attempt to pressure Kone's HR team in to facilitating his demands to proceed without the recordings, effectively an attempt to entrap the two employees he had raised allegations against.

[100] Taking into account the matters discussed above, I find there was a valid reason for Mr Mocanu's dismissal and his dismissal was not procedurally unfair. I therefore find Mr Mocanu's dismissal was not harsh, unjust or unreasonable and on that basis the application must be dismissed.

Mr G. Hampson of Counsel, instructed by Piper Alderman for the Respondent

[1] Email from Mr Mocanu to the Fair Work Commission dated 17 October 2017.

[2] Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure E.

[3] Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure I.

[4] Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure J.

[5] Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure J.

[6] Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure K.

[7] Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure L.

[8] Email from Mr Mocanu to Kayleen Barnes 22/03/17 (10.43AM).

[9] Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure N.

[10] Email from Mr Mocanu to Sian Bennett, Kayleen Barnes, and others 20/06/17 (4.26PM); Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure O.

[11] Email from Sianne Bennett to Mr Mocanu 22/06/17 (9.12AM); Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure P.

[12] Email from Mr Mocanu to Sianne Bennett, Kayleen Barnes, and others 27/06/17 (3.55PM); Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure Q.

[13] Email from Kayleen Barnes to Mr Mocanu 28/06/17 (9.47AM); Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure R.

[14] Email from Mr Mocanu to Kayleen Barnes and others 04/07/17 (7.06PM); Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure S.

[15] Email from Kayleen Barnes to Mr Mocanu 11/07/17 (9.03AM); Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexures T, U.

[16] Email from Mr Mocanu to Kayleen Barnes 21/07/17 (10.26PM); Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure V.

[17] Email from Kayleen Barnes to Mr Mocanu 23/07/17 (9.07PM); Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure W.

[18] Email from Mr Mocanu to Kayleen Barnes and others 06/08/2017 (10.45PM); Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure X.

[19] Email from Mr Mocanu to Kayleen Barnes and others 06/08/2017 (10.45PM); Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure X.

[20] Email from Mr Mocanu to Kayleen Barnes and others 06/08/2017 (10.45PM); Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure X.

[21] Email from Mr Mocanu to Kayleen Barnes and others 07/08/17 (11.19PM); Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure Y KNB Statement.

[22] Email from Kayleen Barnes to Applicant 08/08/17 (9.27AM); Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure Z KNB Statement.

[23] Statement of Kayleen Nottage-Barnes dated 24 November 2017, at Paragraph 53; Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure AA.

[24] Email from Mr Mocanu to Kayleen Barnes and others 11/08/17 (2.09PM)' Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure AB.

[25] Letter from Respondent to Mr Mocanu (via email) 14/08/17; Statement of Kayleen Nottage-Barnes dated 24 November 2017, Annexure AC.

[26] Respondent's Outline of Submissions at para 11.

[29] Transcript 5 December 2017 PN 411.

[30] Purcell v Tullet Prebon (Aust) Pty Ltd [2010] NSWCA 150.

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