s.394 - Unfair dismissal

Wide Bay Respite Services Association Incorporated

Application for an unfair dismissal remedy - Applicant a Disability Support Worker - Applicant carried out a service that had been cancelled by client - Applicant in breach of Code of Behaviour and COVID-19 Policy - Applicant acted aggressively on Respondent's premises - Dismissal via telephone - Valid reason for dismissal - Dismissal affected by procedural deficiencies - Dismissal not disproportionate - Dismissal not harsh, unjust or unreasonable - Application dismissed

• [1] On 12 June 2024, Mr Timothy Ladd made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed from his employment with Wide Bay Respite Services Association Incorporated (the Respondent) and that the dismissal was harsh, unjust or unreasonable.

• [2] On 3 July 2024, the Respondent filed a Form F3 Employer Response to the application. It did not raise a jurisdictional objection.

• [3] Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing on 26 November 2024 in Hervey Bay. Mr Ladd was granted permission to be represented by Mr Kade Eames and Ms Angel Francis of Gold Law, Hervey Bay. The Respondent was granted permission to be represented by Mr Fraser Hawkins and Mr Douglas Anderson of Taylor Rose.

• [4] The following people gave evidence at the hearing and were cross-examined:

• Mr Ladd;
• Mr Chad Turnbull, friend of Mr Ladd;
• Ms Sharon Parry, CEO of the Respondent; and
• Ms Marie Taylor, Aged Care Manager of the Respondent.

• [5] Section 394 of the Act provides:

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the person and other persons in a similar position."

• [6] Further, ss.385 and 387 provide as follows:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388."

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."

• [7] There are no jurisdictional issues preventing the Commission determining if the dismissal was unfair. The application was made in time. Mr Ladd has been dismissed and has met the minimum employment requirements. The Respondent is not a small business, and the dismissal was not a case of genuine redundancy. Accordingly, it is necessary to determine if the dismissal was unfair having regard to the considerations in s.387 of the Act.

• [8] Mr Ladd commenced employment with the Respondent on 21 June 2023 as a casual Disability Support Worker. He was covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award).

• [9] On 10 June 2024, Mr Ladd completed a timesheet which detailed a one-hour service he had provided for a client whom I shall call Mr A. The services involved Mr Ladd collecting Mr A and two other individuals for whom Mr Ladd was also providing support and taking them out for a morning coffee. This activity ultimately took two hours but was funded for one hour.

• [10] Ms Taylor said words to the following effect to him in relation to his timesheet:

"You cannot put down one hour for the community support services provided as the Award does not allow this."

• [11] Mr Ladd asked Ms Taylor how he should record his time, to which she replied, "Put down two hours every fortnight." Mr Ladd adopted this practice for the remainder of his employment. He stated that the Respondent never took issue with the manner in which he recorded his time, nor the service he had provided to Mr A.

• [12] On or around 22 May 2024, Mr Ladd realised that three of his clients were not rostered for the Fraser Coast Show Holiday, which was on Friday, 24 May 2024. Upon realising this, he informed Mr Taylor, saying, "You know how important Fridays are for the boys so why are they not rostered on?". Ms Taylor said that the clients' plans do not allow for public holidays. Mr Ladd accepted this but offered to take the clients out for free on his own time. Mr Ladd's evidence is that Ms Taylor agreed to this.

• [13] On 1 June 2024, Mr Ladd attended the residence of Ms G to provide support to her son whom I shall call James (not his real name). James was seven years old at the time and has low-functioning autism. Mr Ladd recounted that he exited his car and observed Ms G and James at the front door. James was doing star jumps, which made Mr Ladd believe that he was excited to see him.

• [14] Mr Ladd stated he had a conversation with Ms G to the following effect:

Mr Ladd: The office has not told me. Well James is not very sick, is he?

Ms G: No, it's more me and the other [number of children].

Mr Ladd: Well, I have a kid the same age as James, and I am exposed to all the same germs. We are going down to the beach. It doesn't affect me. I don't mind taking the risk of catching the flu, so would you like me to take him anyway?

• [15] Mr Ladd and James went to a local playground. Knowing that he had another service to attend after his service with James, Mr Ladd checked his phone towards the end of the service and saw the following text message from Ms Parry, sent between 9:18 and 9:19am:

"Hi Tim, [James] is sick, can you go to Coventry and work on the list of chores please, can you text me what you get finished so I can cross those things off the list please".

• [16] Mr Ladd responded, "Saw you[r] message too late, I took [James]." Ms Parry replied as follows:

"Tim you really need to check your phone, how do you know that they haven't got covid?

• [18] On 5 June 2024 at approximately 12:45pm, Mr Ladd attended the Respondent's office in his own time. He visited Ms Parry's desk to find his roster. Ms Parry arrived and asked him to sit down. They had a conversation to the following effect:

Ms Parry: Why did you deliberately ignore my message on Saturday morning?

Mr Ladd: I didn't, I had picked up a car from Tristiana that I needed to attend the shift and was driving. I was unaware that I had received a message.

Ms Parry: My phone said you read it at 9.18am and you attended the house of [James] even after you knew the shift was cancelled.

Mr Ladd: That is impossible because I didn't see the message until I responded to you.

Ms Parry: You are notorious for not answering your phone.

Mr Ladd: That is not true, you point out a time when I have not answered my phone or responded within an appropriate timeframe. I do not look at my phone when I am with a client.

Ms Parry: Why were you going to a shift at 9:30am that had been moved to 12:30pm?

Mr Ladd: I know nothing of that I have not received any messages that the shift was moved to another time. Besides that, I had another shift after [James], and it would have been impossible for me to be in two places at once.

Ms Parry: You intimidated [James'] mother and done a stand over on her and made her feel uncomfortable and then took [James] without the mother's best wishes.

Mr Ladd: I don't believe you. I was there and [James'] mother was not upset over anything. I did not do a stand over or intimidate her, we had a very pleasant conversation and we both decided that [James] would be coming on the shift.

Ms Parry: Who makes the decision for your child? Do other people make the decisions for your child, or do you?

Ms Parry: Well, why did you have [James] out when the mother cancelled the shift?

Mr Ladd: I had a very amicable discussion with [Ms G], and we agreed that [James] could attend the shift.

Ms Parry: You can't change times of shifts to suit yourself. Do you respect me? Do you respect me?

• [19] Mr Ladd stated that Ms Parry was yelling at him, and he was shocked by the way she was speaking to him and the accusations she was making. In an attempt to diffuse the situation, Mr Ladd responded. "Yes, Sharon. Yes, Sharon." He recalled the conversation continued as follows:

Ms Parry: [Ms G] did call and complain about your conduct. I wanted you to go and clean another Coventry house and clean items off the list.

Mr Ladd: Sharon, I would not have done that. I would have turned around and gone home because you cannot cancel a shift twelve minutes before start time and expect me to go to another job.

Ms Parry: I can send you to other jobs whenever I want.

Mr Ladd: Well Sharon, I have brought to the office's attention the amendment of the Social, Community, Home Care and Disability Services Industry Award.

• [20] Mr Ladd stated that Ms Parry then turned around on her chair, picked up a big folder, lobbed it onto the desk in front of him and said words to the effect of, "Find it for me."

• [21] Mr Ladd responded, "I do not have my glasses, and I am not playing these games with you." He closed the folder and said, "I am not doing this." He said the discussion continued as follows:

Ms Parry: What would you do if you contracted covid as you work with old people?

Mr Ladd: If I contracted any symptoms, I would test myself per company policy.

If you are not happy with the job I am doing for you, sack me.

• [23] On 8 June 2024, Mr Ladd attended Ms G's house to complete a service for James. Mr Ladd and Ms G had the following conversation:

Mr Ladd: I apologise for last week. I did not mean to upset you or intimidate you or anything.

Mr Ladd: Well, the office told me you rang to complain about my conduct last week.

Mr Ladd: I knew it was. I knew you would not ring up and complain.

• [24] Mr Ladd then completed the service with James.

• [25] At 9:00am on 10 June 2024, Mr Ladd attended the Respondent's office. Mr Ladd stated that he saw Ms Parry, so sat at her desk. Once he sat down, Ms Parry got up and left, so he a started a conversation with Ms Taylor, seated at the adjoining desk. Ms Parry then returned, and Mr Ladd stated he had the following conversation with her:

Mr Ladd: Sharon, I need to know who took the call from [James'] mother concerning my conduct.

• [26] Mr Ladd stated he repeated his question and continued:

Mr Ladd: Sharon, I don't think you're understanding me, but I need to know who took the call from [James'] mother to complain about my conduct.

Mr Ladd: Okay, well I can see that I'm not going to get anywhere with this. You are lying to me.

Mr Ladd: Yes, I am being unprofessional. I will leave now.

You should check the facts of your narc before you accuse people of doing things.

• [27] Mr Ladd went outside and sent an email to Ms Parry saying that he confirmed with Ms G that she had not called the office to complain about his conduct. A part of Mr Ladd's email, essentially a file note to himself is produced below:

"...... The fact is that I had an amicable and positive discussion with [James'] mother when I arrived at the door not knowing that the days C/A shift had been cancelled on arrival, and together we agreed that the shift would go ahead seen as I was there and she was in fact the one who was sick and the kids less so. I did make the call to risk contracting the flu, covid or cold as I am already exposed to a primary school aged child every day, and C/A was planned for an open air environment...."

• [28] Later, at or around 9:40am on 10 June 2024, Mr Ladd was hanging washing at his home. His friend, Mr Turnbull, was also present. Mr Ladd heard Mr Turnbull call out and inform him that his phone was ringing. Mr Turnbull brought Mr Ladd's phone over to him. Learning that it was Ms Parry calling, Mr Ladd asked Mr Turnbull to answer the call. Mr Ladd stated that Mr Turnbull answered the call, put the phone on loudspeaker and did not say anything. Before Mr Ladd had the opportunity to say anything, Ms Parry spoke and the conversation was as follows:

Ms Parry: Well, you do not work for us anymore and if you try to come to the office, we will call the police.

• [29] Mr Ladd stated that this is the only notice he received that his employment had been terminated.

• [30] After the phone call with Ms Parry, at 11:49am. Mr Ladd sent an email to the Respondent requesting a copy of a separation certificate. He did not receive a response. The parties received an email from a Staff Conciliator of the Commission on 7 August 2024 informing the Respondent of its obligation to provide a separation certificate. Mr Ladd stated that despite this, he never received a separation certificate or any formal notice of dismissal from the Respondent.

• [31] Mr Ladd stated that he was not given a reason for his dismissal until he received the Respondent's Form F3 Employer Response, and he never received any formal written notice of the dismissal. Mr Ladd stated:

• he did not believe he engaged in serious misconduct;
• he was not given time to prepare for the disciplinary meeting on 5 June 2024;
• he was not afforded the opportunity to have a support person;
• he did not receive any warnings from the Respondent; and
• he was not put on notice that his employment may be terminated.

• [32] On 11 June 2024, Mr Ladd visited a doctor and was issued a medical certificate which stated that he was suffering from depression and was unfit for work until 11 September 2024. On 14 June 2024, four days after the dismissal, Mr Ladd received confirmation that his application for an Australian Business Number (ABN) was effective from 11 June 2024. On 28 August 2024, Mr Ladd registered himself as a community support services provider on Mable, an online platform. Mr Ladd was issued a further medical certificate on 28 August 2024 which said that he would remain unfit for work until 23 November 2024.

• [33] Despite the medical certificate declaring him unfit for work, from 16 September 2024, Mr Ladd started performing work and receiving income from disability support services he provided through the Mable platform.

• [34] In evidence given during the hearing, Mr Ladd stated that he resumed privately providing support services within weeks of being dismissed by the Respondent, despite his medical certificates certifying him unfit for work.

• [35] He agreed that clients he supported while working with the Respondent have various disabilities, are elderly and are vulnerable.

• [36] Mr Ladd was asked if he agreed that he was required to do chores, if requested or directed by the Respondent. He stated that he was not employed as a cleaner, so no, he would not do chores. He stated that he had never been inside Coventry House.

• [37] Mr Ladd was asked if during the peak of the COVID-19 pandemic, there was a large number of deaths and serious illnesses worldwide. He replied no, less people died than the year prior. When asked if a large number of people died relating to COVID-19 in the previous year, he answered, "All right. That was the narrative, yes." He accepted that elderly people and individuals with underlying health conditions are particularly at risk from COVID-19.

• [38] Mr Ladd was taken to a Respondent document within its witness material titled "Client Rights". The document states:

"Wide Bay Respite Services & all employees agree that people with disabilities have the same rights as other members of society:

• To be treated as an individual, with dignity and respect.

• To realise his or her capacity for physical, social, emotional & intellectual development.

• To receive services without discrimination to their sex, ethnic origin, aboriginality or disability.

• To participate in decision making about their own lives.

• [39] He agreed in cross-examination that meant a client could cancel a service on any particular day, and one reason to cancel might be that other people in their household are unwell. Mr Ladd agreed he would need to respect the decision to cancel the service.

• [40] Mr Ladd agreed that the Respondent's Code of Conduct required employees to agree and abide by the Respondent's various policies. He agreed that if he did not comply with the Respondent's COVID-19 Policy, he would not be abiding by the Code of Conduct.

• [41] The Code of Conduct obliges employees to "work closely with families & carers at all times to follow their instructions." He agreed that an example of not following an instruction would be carrying out a service if the client and family did not want it to proceed on a particular day.

• [42] Mr Ladd agreed that if he was having a meeting with a manager that was not going well and he walked out, slamming the door, that would be covered by the policy's provision that verbal, emotional of physical abuse of a client or co-worker will not be tolerated.

• [43] Mr Ladd was asked if he agreed it was important to keep an eye on his phone when servicing clients, as cancellations may occur? He stated that he often kept his phone within his hat, and he used the hat as a handbag. He does not like to carry his phone on his person.

• [44] It was put to Mr Ladd that the evidence of Ms Parry is that her phone records Mr Ladd as having read the text message sent to him at 9:18am cancelling the service for James, and he read it at 9:19am on 1 June 2024. Mr Ladd agrees that this is what the evidence demonstrates, although he denies that he did, in fact, read the text message at 9:19am.

• [45] Mr Ladd disagreed that he looked at his phone when he arrived at James' home. He stated that he did not look at his phone until around 11:20am, towards the end of the service with James. He said he had not heard his phone all morning. When I reminded Mr Ladd that he had replied to the text message at 10:55am, he agreed that is when he must have looked at his phone.

• [46] I asked Mr Ladd when he thinks he arrived at James' house; he answered "easily 9:20." I asked him what he was doing between 9:20am and 9:30am; he answered that he did not sit in his car, nor did he look at his phone, but rather, walked to the front door. The following evidence was given:

Commissioner: You go and knock on the door straightaway, do you, and you leave your phone in the car?

Mr Ladd: No. I could see all of us (indistinct) and all of us standing at the door through the flyscreen when I arrived when I pulled up in front of the house. I could see the two of them standing in the door.

Commissioner: So you go up to the door, do you, without your phone?

Mr Ladd: I had the conversation with [Ms G], yeah, and she said, 'Tim, I've just rung and cancelled the shift'. I said, 'No. What's wrong?' She said, 'We're all sick', and [James] was still in his (indistinct) autistic child, non-verbal, and he was all excited doing star jumps, and I just said to [Ms G], 'You don't look - he doesn't look very sick', and she said, 'No. He's not - he's the only one that's not sick in the house'.

Commissioner: He was sick enough the next day for her to cancel the Sunday shifts. She did cancel the Sunday shifts because everyone's sick (indistinct)?

Mr Ladd: Well, she said that he wasn't sick. So I'm taking what she said, that he wasn't sick, and she said that (indistinct) - - -

Commissioner: ........... You suggested that he didn't look sick?

Mr Ladd: (Indistinct) talk her into it. No. I just said, 'He doesn't look sick'.

Commissioner: So what happens when he's been in your custody? What do you do?

Mr Ladd: I put him into the back of the car at the beginning of the shift. I drive down to usually one of the playgrounds unless we're going to a car show or something, and we get out of the car, and you spend two hours down on the beach or in the playground or do all those sorts of things. We go out to lunch sometimes, and then I drop him home at 11.30.

Mr Ladd: He's not (indistinct) sit in the car seat.

Commissioner: (Indistinct) seven. That is also dependant on judgment of weight and (indistinct) right?

Mr Ladd: He's a very big kid. He's a very big kid, yep.

Commissioner: Are you permitted to have him in the car? I thought there was an issue when I read about him not being (indistinct) in the car?

Mr Ladd: It's never been brought up with me, and I'm - with all of my previous shifts (indistinct) on the timesheet, we write our times on the back, and on the front, we have to itemise all our shifts, and I'd been writing that we'd been going to playgrounds, we'd been going to the beach and everything, and nothing's ever been said to me about him not being able to go in the car.

Mr Ladd: Not with me. I believe he had, but no one told me about it.

Commissioner: Why do you put him in the backseat, then?

Mr Ladd: Because I don't want him in the front seat.

Mr Ladd: Because he can touch the radio. He can touch things. There's a lot of knobs and things in the front seat of the car, and there's less things for him to grab and be distracted by in the back.

Commissioner: So without being told that he's caused a car accident, your own judgment is that it's safer for him in the backseat?

Mr Ladd: Absolutely safe. (Indistinct) had one occasion where he's taken his seatbelt off.

Mr Ladd: Yeah. I've had one occasion where he took his seatbelt off. So I pulled up immediately, took him out of the car. We sat on a fence, and I just talked to him and want him to calm down and stop his panicking, and then we got back in the car and continued our journey.

Commissioner: Do you know if he sits in the car seat in his family's car?

Mr Ladd: I don't know. His mother watches me put him in the car every time I leave.

Commissioner: And then what caused you to look at your phone?

Mr Ladd: Because I was getting towards the end of the shift, and I had another shift to go to immediately after that. So I was just looking in my phone, and we were both sitting there having a drink of water. I just reached into my (indistinct) look at my phone, and then I saw - because I was thinking to myself it's strange that I didn't get a phone call just saying that [James'] shift had been cancelled from the office, but just far as I knew when I looked at my phone at 5 to 11, I hadn't received anything from them. I didn't hear the message come in.

Commissioner: So why didn't you at 9.20 say, 'Hang on, [Ms G]. I'll just go check my phone'?

Mr Ladd: There's no - [James] was excited to go out and - - -

Mr Ladd: Yeah. I didn't ring the office. Well, I didn't think they'd contacted me either.

• [47] Mr Ladd agreed in cross-examination that it was a reasonable and lawful direction given by Ms Parry to cancel the shift. Mr Ladd considers that it would have been more appropriate to receive a telephone call so close to the commencement of the shift.

• [48] Mr Ladd was asked if he considered it lawful and reasonable to be directed to do chores at Coventry House, given the cancelled shift. He stated that he would question if chores were part of his role and to be given such little notice. He stated that he did not consider it was part of his scope of work.

• [49] The following was asked in cross-examination:

Mr Hawkins: I'm going to suggest that you ignored the direction to go to Coventry because you didn't want to go and do chores. Do you accept that?

Mr Hawkins: And by continuing this service with [James] on 1 June, I suggest you knew (indistinct) and that was a breach of your obligations (indistinct)?

Mr Ladd: Well, his mother changed her mind about cancelling the shift when I spoke to her.

Mr Hawkins: All right. Let's look at what [Ms G] (indistinct) page 22, paragraph 31. So the first thing she tells you is that she rung your office to cancel the shift; correct?

Mr Hawkins: And then you say, 'The office has not told me, "Well, [James] is not very sick, is he?"' Is that what you said?

Mr Hawkins: So I want to suggest you didn't know any information on the basis to suggest to [Ms G] that [James] wasn't sick. Do you accept that?

Mr Ladd: They COVID tested, and the people in the house that were sick had COVID tested, and they were negative.

Mr Hawkins: Where's that in your statement? Is it in your statement?

Mr Hawkins: I'm just going to suggest you're making that evidence (indistinct)?

Mr Ladd: I was aware that they did not have COVID at the time and that [James] was not showing symptoms.

Mr Hawkins: Well, I suggest to you - the evidence is pointing that you sent them - when I started this questioning that you put everything important in your statement. Do you recall that evidence?

Mr Hawkins: This was something important, wasn't it?

Mr Ladd: I thought the mother had changed her mind and said take [James]. I didn't think it was even important after that.

Mr Ladd: (Indistinct) that was going to be (indistinct).

Mr Hawkins: I'm suggesting to you that it was important to have put that sort of information in your statement, Mr Ladd?

Mr Hawkins: You told the court when I asked you have you put everything in there that you thought was important for the Commissioner to make a decision in this case, and you (indistinct) certainly making up this evidence as you go on. Do you accept that?

Commissioner: Mr Ladd, it's not in your F2. It's not in your statement. It's not in your reply statement. Why wouldn't it be if you had this extensive conversation about satisfying yourself that nobody in the household had COVID? Are you making it up?

Commissioner: Well, where exactly did it occur in this conversation appearing at page 22?

Mr Ladd: Well, it would have been after I said - it would have been - no, it's more me and the other two.

Commissioner: Not would have been. Not would have been. Where exactly did it occur?

Mr Ladd: It's seven months ago. I can't say exactly when, but I noticed the - whoever was (indistinct) the COVID policy - - -

Commissioner: Don't you worry about (indistinct) evidence?

Commissioner: This is your evidence to the Commission?

Commissioner: And you've only just now said that you satisfied yourself that nobody in the house had COVID because they had tested. Where is that in your material?

Mr Ladd: It's not, and I'm not making it up. It was omitted accidentally.

Commissioner: Mr Ladd, it sounds like you're making it up?

Commissioner: Because you've had plenty of time to put this material together, and it would be a very important issue because you know that Ms Parry immediately suggested to you this was a potential COVID issue in the text message, didn't she?

Commissioner: Well, let's go. It's page (indistinct)?

Mr Ladd: I think it was a question she asked me, 'How did you know they don't have COVID', isn't it?

Commissioner: Yes. And you didn't reply to her - - -?

Commissioner: - - - they told me that they don't have COVID because they've tested. You didn't respond to her that you're satisfied?

Mr Hawkins: I just want to suggest to you, Mr Ladd, you've given two statements to the Commission, haven't you, about this matter?

Mr Hawkins: You've given detailed evidence about many of the factors in this case, haven't you?

Mr Hawkins: I want to suggest that you're just making up that evidence about COVID-19?

Commissioner: Why didn't did you say to her, Mr Ladd, 'They told me that they tested negative'?

Mr Ladd: I was under a lot of stress that day. I was being hammered by her, and it was very hard to get answers out at the time because I was being yelled at, stood over and yelled at.

Commissioner: But that would be something to give her comfort, wouldn't it, that, 'No, [Ms G's] been tested negative'?

Mr Ladd: By that stage of the conversation, I was just agreeing with everything she said, trying to diffuse the situation.

• [50] Mr Ladd was asked questions in cross-examination about whether there was a risk of catching COVID-19 from the client family:

Mr Hawkins: But I'm talking about the risk. It didn't limit the risk though, did it?

Mr Ladd: Well, because I'd already had all the school colds that come home from the school and everything already that season, I have a level of immunity.

Mr Hawkins: But you're not qualified to say you have immunity, are you?

Mr Hawkins: I just want to suggest, if you wouldn't have - just because you are around your child from school, it would not have limited your risk of passing COVID-19 on to other clients. It didn't limit that risk of that exposure is what I'm suggesting?

Mr Hawkins: 'May'. How would it have? Why do you say that?

Mr Ladd: Well, because I'm saying, because probably I've already had that bug, my body's already fought it once, and so my body produces antibodies that helps fight it off a second time.

Mr Hawkins: But you don't say that from any standpoint of having - - -?

Mr Ladd: I'm just answering your question. I'm answering your questions.

Mr Hawkins: - - - a medical basis (indistinct). (Indistinct) COVID policy that allowed you to take that risk which you said you did in your email (indistinct) COVID-19 policy?

Mr Ladd: No, but I would expect to be spoken to by Sharon about that if that is an issue.

Mr Hawkins: Well, what I'm putting to you is that there's no exception policy that allowed you to take that risk, correct?

Mr Hawkins: So you accept that you breached the COVID-19 policy, don't you?

Mr Hawkins: That's a serious matter when you're dealing with vulnerable clients, isn't it?

Mr Hawkins: Just further down in your email on 265?

Mr Hawkins: It carries on, 'I deemed it an acceptable risk due to wanting to keep consistency in my work with [James] as progress has been made with his behaviours.' Is that what it says?

Mr Hawkins: And I suggest to you that wasn't a basis that COVID-19 policy allowed you to continue the service on? That didn't justify doing what you did, is what I put to you?

Mr Ladd: Well, I've worked as a safety officer before, and I've done a lot of risk assessments. I thought the risk of contracting COVID that wasn't present in the house was less than the damage that would done for me turning around after [James] had seen me at the front door and leaving him in the lurch.

Mr Hawkins: Well, that's not what you're saying there. You're talking about the progress with [James], not whether [James] will have hurt feelings about you walking away that day, correct?

Mr Hawkins: That's not in your statement either, is it, the evidence you just gave about that?

Mr Eames: It seems that Mr Ladd has endured some one-and-a-half hours (indistinct) cross-examination and getting tired.

Commissioner: Well, I don't think you're being asked repetitive questions?

Commissioner: I don't think you're being asked repetitive questions. We'll only break here, Mr Eames, if anyone needs to use the bathroom.

Mr Eames: Could I simply request that my friend put that last question that he asked Mr Ladd to him again?

Commissioner: Mr Ladd is a man in his 50s. Mr Ladd?

Commissioner: If he wants to answer facetiously - did you answer that last question facetiously?

Commissioner: Well, he's old enough to know better then, Mr Eames.

• [51] When giving evidence about who Mr Ladd asserted was a "narc", the following was discussed:

Mr Ladd: It's a woman there called [name], (indistinct) House, and I returned from the [James] shift, it's a woman who works in the company, it's a friend of theirs. And, yes, she does private orders, she's a very strange lady.

Commissioner: Sorry. 'You should check the facts of your narc before you accuse people of doing things', that's not important?

Mr Ladd: Well, they haven't mentioned her, so why would I mention her?

Commissioner: Because this is what you say as you leave. These people are giving evidence that they're scared?

Commissioner: And this is your evidence that you say this about someone, [name], is it?

Mr Ladd: Because she reports false facts back to the office to try and get people in hot water with the office. She's just a strange lady.

Commissioner: And they're meant to know that, are they?

Commissioner: They're meant to know that when you - - - ?

Mr Ladd: This woman is a strange woman. For example, one case, the weekend before, she's arrived at the house for 12 o'clock community access shift with one of the boys I was responsible for that day. I'd arrived at 12.01 after taking the boys out to lunch. And I'm sitting in the driveway, I see this [name's], whatever her name is, car there, now I think to myself, I've got to get a photo of the clock because I know she's going to blow this out of the water. But I didn't. But I took note of the time, it was 12.01. Later in that shift when she came back and I was doing a shift transfer, she's said to the person that was replacing me in the house, 'And I had to wait half an hour for Tim to get back with [name] before I could go.' And I've just said, 'Well, hang on, [name]', I said, 'I took a photo at 12.01 of me seeing in front of the garage.'

Mr Ladd: I didn't have the photo, but she knew that I was there at 12.01.

Commissioner: But you said to her you took her photo?

Mr Ladd: I said it to her that I took the photo. And then she retracted her statement.

Commissioner: So you made this statement about someone being a narc and (indistinct) - - -?

Commissioner: - - - meant to understand what a narc means - - -?

Commissioner: ‑ ‑ ‑ because narc has several meanings?

Mr Ladd: Well, an informant, I believe it means. But - - -

Commissioner: Well, I'm asking if that's what you believe it to be?

• [52] The discussion over why Mr Ladd referred to a fellow colleague as a 'narc' continued:

Mr Hawkins: And we've gone over that, Mr Ladd. Now, you don't deny using the term 'narc', do you?

Mr Hawkins: I just want to suggest that as the Commissioner identified, there may be different interpretations of it, but a narc is commonly thought of as a slang term for someone who tells on someone else?

Mr Hawkins: And would you agree, though, that a narc by that definition is someone who would pass on information to someone else?

Mr Hawkins: And passing on that information is intended to try and get that person - that other person into trouble?

Mr Hawkins: Could just, then, turn to page 28. At paragraph 79, you said, 'You should check the facts of your narc because you accuse people of doing things'. That's what you said, yes?

Mr Hawkins: That's fine, Mr Ladd. Thank you. What I want to suggest to you, though, that's what I'm - what you've just accepted as a definition of a narc that there was no information. There was no narc?

Mr Ladd: In my opinion, there had to be because she was so sure that I'd read the message, and there's no way her phone would have told her that I read the message because I hadn't read the message, and so I assumed that [name] - whatever her name is at the house on the Saturday when I got the car back and went to staff the next shift, I assume that she had told Sharon that ignored the message, and I had told her that I had ignored the message.

Mr Hawkins: So when you said, 'Check the facts of your narc', you were just assuming there was a narc?

Mr Ladd: Yes because I hadn't checked my phone at 9.19 or 9.18.

Mr Hawkins: You hadn't made a proper inquiry to see if there was a creditable indication of (indistinct)?

Mr Ladd: No, but I know there was a woman that was causing problems for a lot of staffing.

Mr Hawkins: Yes, but there's nothing substantive about this woman, is there?

Mr Ladd: No, there's not. No. So it can be struck from the record or whatever you want to call it.

Commissioner: She had told - Ms Parry had told you on 5 June that her phone said that you've read the message (indistinct)?

Mr Ladd: Yeah. And I told her that was impossible because I hadn't read the message.

Commissioner: Yes. So on the 10th, you were talking about a narc. (Indistinct) know who that is, do they?

Mr Ladd: No. Yeah. Well, they - if I was right, they would have known.

Commissioner: I'm not sure what you think (indistinct) about. I was completely lost (indistinct)?

Mr Ladd: She was - okay. My theory was because she was so definite that I had read the phone when I hadn't - I know that I hadn't - that somebody must have told her that I read the phone.

Mr Ladd: Because she likes causing trouble for staff, and she was probably after my Sunday shifts at the house.

Commissioner: Did you have any discussions with her on the Sunday about [James' family]?

Mr Ladd: You don't understand the calibre of this woman. She's diabolical.

Commissioner: That doesn't make any sense. You thought - you've drawn half a circle, but you can't finish the circle?

Mr Ladd: So I - because I had not checked my phone and seen the texts, for Sharon to be so adamant to me when she was yelling at me to say you ignored - because she opened the conversation, 'You ignored my text. You ignored my direction'. And I said, 'Sharon, I didn't', and then she was adamant that I had read - - -

Commissioner: (Indistinct) says you - that she's given you the answer, 'My phone says you read it at 9.18'?

Mr Ladd: And I said, well, that's impossible because I hadn't opened my phone.

Commissioner: Okay. How did this other woman get involved?

Mr Ladd: Because Sharon was so adamant that I had read the message.

Commissioner: You don't explain how this [name] even is involved and is a narc?

Mr Ladd: Well, she's got a track record of doing that, and she'd done it to me the week before to another staff member.

Mr Ladd: At the house - when I took the car back to Tristania to take the car back and then to pick up the next client for the 2 o'clock shift, I said to her - I said the office tried to contact me to cancel the shift, but I was already there, and I've already done the shift when I read the message, and then she, probably to stir trouble, probably got in touch with Sharon to say, 'He read your message', you know, like she does. It's just the sort of person that she is.

Commissioner: The narc thing was about whether [Ms G] had complained about you (indistinct)?

Mr Ladd: No. Like, this whole situation could have been - - -

Commissioner: That's why you (indistinct) the text?

Mr Ladd: Yeah, but this whole situation could have been avoided if they'd checked the facts, you know, if they checked if I had seen the message.

Commissioner: You said to her that she's lying to you. Marie says you're being unprofessional. You were being (indistinct) your leave, and, you know, 'You should check the facts of your narc before you accuse people of doing things'?

Commissioner: Your evidence now is about whether you'd read the message, and you think this third woman is involved?

Commissioner: But you were talking on 10 June about whether or not [Ms G] had complained about you?

Mr Ladd: No. As far as I knew, she had complained about me up until the 8th when I apologised. So I've gone on in there to the office on the Monday morning after I've serviced all of that weekend, and I said, well, who took the phone call or complained, and that's when Sharon said 'the office', and I said, 'Sharon, I need to know who took the phone call of complaint', and she said, 'Just someone in the office', and I said, 'Sharon, you're not understanding. Please tell me who took the phone call of complaint' because to me, that's what all of this was about.

Commissioner: Yes. And then you introduced the narc?

Mr Ladd: Well, it was a false allegation towards me to start with. Where did this false allegation come from? Where did the information - - -

Commissioner: The evidence you've given about the narc is in respect of whether you read the message or not, not in respect of (indistinct)?

Mr Ladd: No. It was in respect to the whole situation, and the information that they were - - -

Mr Ladd: The information they were throwing at me - it's hard to believe two women would just make this up in their head. So surely I came to the assumption that they'd been prompted by somebody.

Commissioner: It doesn't make any sense, Mr Ladd....

• [53] In cross-examination, Mr Ladd agreed that during the discussion on 10 June 2024 in the office, Ms Parry was speaking calmly. He agreed she wasn't speaking in an aggressive tone.

• [54] Mr Ladd could not recall if he walked towards the front door, turned and pointed his finger at Ms Parry.

• [55] He agreed that calling a fellow employee a 'narc' is derogatory. He agreed that he slammed the door on his way out of the office.[1]

• [57] At approximately 9:30am on 10 June 2024, Mr Turnbull was in the garage of Mr Ladd's residence. Mr Ladd left the garage to hang out washing, when his phone started ringing. Mr Turnbull called out to Mr Ladd to tell him that his phone was ringing and informed him of the caller identification displayed on the phone. Mr Turnbull cannot remember if the caller identification showed a name or a phone number. Mr Ladd asked him to bring the phone over and answer it. Mr Turnbull stated that he answered the phone after walking over to Mr Ladd, immediately put the phone on speakerphone and handed it to Mr Ladd.

• [58] Mr Turnbull stated that Mr Ladd answered the phone by saying "Hello" or similar words. Mr Turnbull then heard the caller say words to the effect of, "You know you do not need to come in for your next shift?" Mr Turnbull understood the voice to be that of Ms Parry as he had heard her speak to Mr Ladd on the phone before. Mr Turnbull described the caller's voice as "very rude and belittling".

• [59] Mr Turnbull heard the caller say words to the effect of, "Well, you don't work here anymore". Mr Ladd asked why. Mr Turnbull could not recall the caller's response to this question and stated that he could not hear the rest of what the caller had to say because Mr Ladd was trying to speak. Mr Turnbull stated that Mr Ladd said words to the effect of, "Why is that, what do you mean, why?", to which the caller responded, "You know what I mean, that's it and if you turn up at the office I will call the police." Mr Ladd then said, "Well, I am going to [be] taking this further." The phone call then ended.

• [60] Ms Parry has been employed as the Chief Executive Officer of the Respondent since 4 December 2001. As part of her role, Ms Parry oversees the Respondent's human resources functions and is responsible for the employment and termination of all employees. Ms Parry is assisted by Ms Taylor, Aged Care Manager.

• [61] During Mr Ladd's employment, he was responsible for the following:

(a) Supporting individuals with disabilities in establishing and maintaining relationships, and facilitating access to and participation in community activities, venues, and services, using a range of strategies, in line with organisational standards and individual goals.

(b) Establishing and maintaining collaborative working partnerships with the person with disabilities, their family, and other members of the support team.

(c) Liaising with the manager or coordinator on all issues relating to the welfare and development of individuals with disabilities.

(d) Contributing to the smooth, efficient, and effective provision of services by promoting teamwork and communication, providing accurate and timely reports, maintaining organisational and client records, and carrying out administrative tasks.

(e) Working within the organisation's mission, vision, philosophies, disability service standards, and code of conduct and ethics.

(f) Attending staff meetings as required and playing a constructive, active role.

(g) Complying with the standard conditions set out by the Workplace Health and Safety Act 2011 (Qld) and the Workplace Health and Safety Regulations 2011 (Qld).

(h) Reading, understanding, and abiding by the policies of the organisation and the employee manual.

• [62] Ms Parry stated that all of the Respondent's employees must comply with the Respondent's Employee Manual, which includes a Code of Behaviour. The Code of Behaviour states as follows:

"• Staff will read & abide by the Policies of Wide Bay Respite Services & refresh themselves annually.

• Client/family co worker confidentiality will be maintained at all times as per signed agreement.

• Privacy & respect for individuals, family, & co-workers will be maintained at all times.

• Staff work closely with families & carers at all times to follow their instructions.

• Staff will not provide "professional advice" to clients or families.

• Staff will promote independence & choice making when supporting individuals.

• Staff will support & interact with clients & their families at all times.

• Staff will not smoke in client's homes, organisational vehicles or houses, the office, or in the community when accompanying a client. Staff will only smoke in the designated areas of Wide Bay Respite Services properties. See smoking rules.

• Consumption of alcohol or drugs, other than prescribed medication is not permitted while working. Staff must not report for duty under the influence of alcohol or drugs.

• Verbal, emotional, & physical abuse of client or co-worker will not be tolerated.

• All staff are members of a team. Staff must communicate on a regular basis with their co-workers & the CEO.

• Staff will present for work in neat casual clothes with appropriate footwear at all times, maintaining a high standard in personal appearance and conduct at all times.

• Staff will represent the organisation in a positive manner.

• Staff will work in & maintain a safe, clean, & hygienic work environment."

• [63] Additionally, the Respondent also has a COVID-19 policy. It relevantly states, "All employees have a duty of care and must take all reasonable steps to safeguard participants, staff and other stakeholders from infection."

• [64] Ms Parry stated that where a client's shift is cancelled, the Respondent requires the relevant staff members to undertake cleaning and maintenance duties at houses operated by the Respondent. One such house is Coventry House.

• [65] As part of the Respondent's standard induction process, new employees are provided with all relevant policies and obligations in the Employee Manual. Mr Ladd undertook this process and confirmed that he read and understood the Respondent's policies and procedures and the Employee Manual.

• [66] On 1 June 2024, Mr Ladd was scheduled to attend Ms G's residence to provide a service for James. On this morning, she was travelling in the front passenger seat of Ms Taylor's vehicle, when Ms Taylor received a call from Ms G stating that James had been unwell, and she wanted to cancel the scheduled service for that day. Ms Parry heard this conversation because the call came through the vehicle's speakers via Bluetooth. Ms Parry stated Ms Taylor and Ms G had a discussion to the following effect:

Ms G: Hi it's [Ms G], [James'] mum. I would like to cancel today's shift as he is not feeling well, I think we are all coming down with something.

Ms Taylor: Ok, that's no problem. I will get onto Tim now.

• [67] Immediately after the call ended, while Ms Taylor was still driving, Ms Parry sent the following text message to Mr Ladd:

"Hi Tim, [James] is sick, can you go to Coventry and work on the list of chores please, can you text me what you get finished so I can cross those things off the list please".

• [68] Ms Parry stated that this text message constituted a direction to Mr Ladd not to attend Ms G's residence, and instead complete the assigned list of chores at Coventry House. Ms Parry's phone evidences the message as having been read by Mr Ladd at 9:18am. She noted that his phone evidences the message having been received at 9:19am. She suggested this is due to minor differences in the lock or time settings between the respective devices.

• [69] Ms Parry was surprised and concerned to receive the message from Mr Ladd stating that he "saw you[r] message too late", as she considered, based on the fact that it appeared to her that her message had been read shortly after it was sent at 9:18am, that Mr Ladd was aware of her direction not to continue with the service for James.

• [70] A screenshot provided by Ms Parry of her text message history with Mr Ladd reveals that immediately below the text message sent at 9:18am are the words "Read 09:18".

• [71] Ms Parry stated she had concerns for the health and safety of James' family due to Mr Ladd carrying out the service and concerns about the fact Mr Ladd had not followed her direction. She considered this to be a contravention of the Respondent's obligation to respect the requests of its clients, as set out in the Code of Behaviour.

• [72] Following this incident, Ms Parry promptly completed an incident report. The incident report was dated 3 June 2024, and stated as follows:

"On Call Marie Taylor received a call from [Ms G] to advise that the whole family were sick with Cold and flu and requested that the service be cancelled for Saturday 1st June 2024.

CEO contacted Tim Ladd via text message and advised that due to illness the service was cancelled and alternative work could be completed at Respite House Coventry.

This text message was recorded as read at 9:18am by staff member Tim.

Tim then contacted CEO to advise that he had not seen the message for cancellation in time and had continued to provide the service. This text was sent to CEO at 11:04am.

CEO replied and advised Tim check his phone while on shift for last minute instructions.

Tim replied that he was driving - despite the message being read by Time at 9:19am.

[Ms G] contacted On Call Sunday 2nd June 2024 to cancel the shift for this day as the family were still very unwell with cold and flu symptoms.

[Ms G] then advised that staff member Tim had shown up - and upon being told by [Ms G] that she had cancelled the service, staff member Tim said 'its okay I will still take [James] out and risk being sick'.

Staff Meeting agenda item: YES Comments: Staff to check phones while on shift - follow instructions from Office and no to put themselves and other clients at risk if the client is ill.

Follow up required: YES Comments: To be discussed with Staff Member".

• [73] On 5 June 2024, Mr Ladd visited the office to collect his roster. Ms Parry disputes Mr Ladd's version of the events that followed. She recalled the ensuing discussion with Mr Ladd as follows:

Ms Parry: Why did you proceed with the services with [James] on 1 June 2024, as I had notified you by text message the services had been cancelled?

Ms Parry: [James'] mother has advised you when you arrived that the services had been cancelled due to illness in the family, but you insisted on taking [James] out anyway?

Ms Parry: That wasn't the point, the parent had decided that the shift should not go ahead. My phone says that you read my message at 9:18am.

Ms Parry: It does not matter, the mother advised that the shift was cancelled so you should have left and messaged me that the shift was cancelled in which case you would have seen your phone, which would have seen your phone, which would have confirmed the shift was cancelled.

Mr Ladd: I didn't see your message and it was too late anyway; I was nearly there, I wasn't going to turn around.

Ms Parry: You are a parent, and if you cancelled your son's shift, would [you] like it if your wishes were ignored?

Mr Ladd: It was all fine as [James] was not unwell.

Ms Parry: We are in the business of carrying out the wishes of our clients and that is how we keep our jobs.

We need to consider the potential risk to clients if the family had been infected with COVID-19, because we don't want to inadvertently expose your aged care client to the virus.

Mr Ladd: I have a school-aged child and I am not worried about COVID-19 exposure.

• [74] Ms Parry stated that Mr Ladd became argumentative, speaking loudly over her, saying words to the effect that he believed it was acceptable for the shift to continue. Ms Parry asked Mr Ladd to be respectful and listen to what she was saying. She then recalled the following conversation:

Mr Ladd: If you cancel any shift you need to provide me 24 hours' notice.

Ms Parry: I was redirecting you as per the award by asking you to go to Coventry and start on a list of jobs that need doing there.

Ms Parry: Here is the Award, you can show me where I have got that wrong.

• [75] Ms Parry stated she then handed Mr Ladd a copy of the Award which was in a folder. Mr Ladd then slammed the folder shut, saying words to the effect of, "I don't have my glasses and I don't have time for this...I would not have driven to Coventry anyway, I would have washed cars or done something else."

• [76] Ms Parry stated that she took Mr Ladd's statement as confirmation he had no intention of carrying out the direction given to him. She then observed Mr Ladd "storm" out of the office and say words to the effect of, "This is the reason I do not come into the office."

• [77] Following Mr Ladd's departure, Ms Parry discussed the incident with Ms Taylor who was seated approximately five metres away. Ms Parry stated that both she and Ms Taylor were nervous about the possibility of Mr Ladd returning to the office, given his "visibly heightened anger and agitation".

• [78] Ms Parry completed an incident report dated 6 June 2024. The report states as follows:

"I spoke to Tim about last Saturday where I text him to cancel a shift & he went anyway stating that he did not receive the message in time. I told Tim that the mother has since stated that she told Tim that she cancelled the shift however Tim took him out anyway. Tim said that the boy wasn't even sick. I said that that wasn't the point, the parent had decided that the shift should not go ahead. I said to Tim that my phone says that he read the message at 9:18 & he said that my phone is wrong, I said well it doesn't matter, the mother advised that the shift was cancelled so he should have left & messaged me that the shift was cancelled in which case he would have seen his phone & realised. Tim was argumentative & agitated, his story kept changing about what mum had said & how sick, if at all the boys was. When I said to Tim that he is a parent & if he had cancelled his son's shift, would he like it if his wishes were ignored. Tim just kept talking and saying that all was fine. I said to Tim that we are in the business of carrying the wishes of our clients and that is how we keep our jobs, Tim didn't really comment on that either. Tim's voice got louder and louder as the conversation continued, at one point I asked Tim to treat me with some respect as he was not listening to me, he was not accepting anything I was saying & didn't acknowledge that there was even a problem. Tim was dismissive of the conversation & seemed to be annoyed that I was wasting his time talking about this non-issue. Tim said that I had to cancel a shift 24 hours prior & I said that I was redirecting him as per the award by asking him to go to Coventry & start on a list of jobs that need doing there. Tim argued about what I shad said about the Award so I handed the Award to him & asked him to show me where I was going wrong, he opened the folder & then slammed it shut saying that he didn't have his glasses & didn't have time for this. At one point, Tim said that he wouldn't have driven to Coventry anyway, he would have gone and washed a car or something. Tim's words very clearly were about him not doing house chores & I said what about when you work at Tristania & he said oh the boys, that's different. I note that Tims name is never noted on the chores sheets.

Tim got up and said that he was out of here & that this is why he doesn't come in here, he was observed to be angry & I felt that his demeanour was aggressive & unpredictable.

After Tim left, I had a discussion with Marie about my concerns about Tim's behaviour in the office, I have strong concerns that if a client or their carer said something that Tim disagrees with, what would his reaction be. Marie made similar comments & we both watched the front door for the rest of the afternoon, fearing that Tim might return.

Follow up required: YES Comments: Give Tim a written warning & monitor his performance."

• [79] Ms Parry stated that she did not have the opportunity to issue to Mr Ladd a written warning due to the events of 10 June 2024.

• [80] Ms Parry disputed Mr Ladd's recollection of 10 June 2024. She stated that on this day, she was in the kitchen of the Respondent's office when she saw Mr Ladd sit at her desk. As Ms Parry approached her desk, she observed that Mr Ladd's demeanour was "confrontational" and stated that his "arms crossed, his stance, and his bright read face, all indicated to me that he was angry about something". Ms Parry said she was "frightened by how visibly angry [he] appeared to be". Ms Parry recalled the relevant part of their discussion as follows:

Mr Ladd: I want to know who took the phone call the previous weekend regarding the shift cancellation on 1 June 2024.

Ms Parry: Tim, it doesn't matter who took the call.

• [81] Ms Parry stated that she had already informed Mr Ladd on 5 June 2024 that Ms Taylor took the phone call from Ms G regarding the shift cancellation on 1 June 2024. Mr Ladd then yelled, "I want to know. I have a right to know who it was". Ms Parry asked Mr Ladd to leave the office and that, sensing the situation could escalate, scanned her immediate surroundings and kept both hands on her office chair to defend herself if Mr Ladd acted violently. Ms Parry stated that Mr Ladd then started screaming that Ms G had not complained about him.

• [82] By this point, Ms Parry stated she was "very frightened" by Mr Ladd's behaviour while he "angrily insisted" that either she or Ms Taylor took the call from Ms G. Ms Taylor, who was seated at her desk, then stood up and said that Ms G had called and cancelled the service. Mr Ladd then walked towards the office door, turned, pointed his finger at Ms Parry and yelled, "The narc was a liar!". Ms Parry stated that Ms Taylor then asked Mr Ladd to stop telling, saying words to the effect that he "was not behaving very professionally". Mr Ladd then slammed the door and "stormed off" into the carpark.

• [83] Following Mr Ladd's departure, Ms Parry stated that she and Ms Taylor quickly ran to lock the office doors, as they considered Mr Ladd's actions "threatening" and "extremely frightening". Ms Parry stated that the doors remained locked for the rest of the day, and although shaken, she and Ms Taylor remained in the office as they needed to process the Respondent's payroll. Given Mr Ladd's conduct, Ms Parry stated that she did not believe it was appropriate for Mr Ladd to attend his next client appointment, which was scheduled for the following hour.

• [84] After the incident on 10 June 2024, Ms Parry stated that she reasonably believed that:

(a) Mr Ladd engaged in serious misconduct, and breached the Respondent's Code of Behaviour, by refusing to comply with her lawful and reasonable direction not to attend the cancelled service, thereby failing to follow the wishes of James' family.

(b) Mr Ladd's misconduct involved interactions with the Respondent's client, which created a serious and imminent risk to the reputation, viability, or profitability of the Respondent's business, particularly given Mr Ladd failed to respect and follow the instructions of a client. Ms Parry stated this had the potential to damage the Respondent's reputation with clients, potentially leading to a loss of business or compliance issues being raised by the National Disability Insurance Scheme.

(c) Mr Ladd's behaviour on 5 and 10 June 2025 also constituted serious misconduct and a breach of the Code of Behaviour, which prohibits verbal, emotional and physical abuse of clients or coworkers.

(d) The instances of misconduct, viewed collectively, were inconsistent with the continuation of Mr Ladd's employment with the Respondent.

• [85] Ms Parry rejected Mr Ladd and Mr Turnbull's description of the phone call with Mr Ladd on 10 June 2025. Ms Parry stated that at approximately 10:30am, she called Mr Ladd to explain that the Respondent considered his conduct amounted to serious misconduct. Ms Parry said that the purpose of the call was to explain the Respondent's position and allow Mr Ladd an opportunity to respond.

• [86] The phone call was answered by Mr Ladd. Ms Parry questioned whether Mr Ladd was outside, and the phone was on speakerphone when he answered the call, as if this were true, she would have expected to hear background noise, which she did not hear.

• [87] Ms Parry stated that after Mr Ladd answered the call, she asked if she could speak to him about his conduct at the office earlier and whether he intended to go to his upcoming shift. They then had the following conversation:

Ms Parry: I can't let you do that. I would be too worried about you doing the shift given your behaviour this morning.

Ms Parry: Tim, I can't continue with your employment, your behaviour this morning was frightening.

Ms Parry: Tim, do you understand, you are not to go to your shift, and I cannot continue your employment with Wide Bay Respite.

• [88] Ms Parry stated that Mr Ladd's demeanour during the phone call indicated to her that he was not interested in participating in a discussion about the events of 1, 5 and 10 June 2024. Ms Parry stated she then formed the view that the only reasonable step she could take was to terminate Mr Ladd's employment immediately. Ms Parry then completed an incident report, which stated as follows:

"As I came out of the kitchen, I saw Tim sitting at my desk.

I said good morning & he just glared at me, as I sat down at my desk, I asked Tim what I could do for him today. Tim was very loud & said (bellowed) something like I want to know who took the phone call from the parent regarding last week's discussion. Tim was quite frightening as he was visibly geared up for an argument, his face was bright red, his chest was protruding, his arms were crossed & he was angry. Tim looked as if he had questioned the client during his shift on Saturday & that he had stewed about that conversation & was here to right some wrong in any manner necessary. I had told him that Marie had taken the call during last week's conversation, but he was so aggressive I said that I wasn't going to discuss that with him. He went straight to loudly yelling and said that he wants to know & that he has a right to know who made a complaint against him. Tim started to get out of the chair & was yelling something & I was saying that we took a call from the mother. I was fearful of Tim's reaction if I had named either one of us. At the same time, Marie stood up & said that the mother had called & cancelled. As Tim walked towards the door ranting, he yelled "your narc is a liar" while he pointed his finger at me & Marie said something like that's not very professional Tim. Tim just yelled 'I've sent you an email'.

At this point, Marie & I were both frightened, we were both shaking & we were just hoping that Tim would actually leave. When Tim was a few steps from the other side of the door, Maire ran & locked the door. I said good idea, lets lock both.

Marie & I were both in a state, this was so aggressive, so over the top angry over a situation that he himself blew way out of proportion.

I called Gwyn & told her that we were in lock-down & fearful of this staff member. Gwyn suggested calling the police, but I don't believe that they would see this as police matter. Gwyn said that she wanted our Incident Reports completed & forwarded to the entire Board.

Tim has a shift with [name] at 12:00 however I was confident that Tim's email had to be his resignation, no one would enter their workplace & behave like that & then expect that it would be ok to go & work with our most vulnerable people.

Tim's email didn't come through for a little while & I started thinking what if he turned up to do the shift anyway, I couldn't allow him to possibly take his frustration out on or in front of the clients.

I rang Tim, he was still loud & talking over the top of me, launching into how unprofessional I am. I do not believe for one minute that I was in any way inappropriately behaved toward Tim. I said to Tim that I was confirming that he was not attending his shift today & he said yes, he was. I said to Tim that he cannot expect to continue his employment here after this. I reiterated to Tim while he was yelling "you're a bully" repeatedly that he no loner works for Wide Bay Respite Services. Tim didn't stop ranting for the entire 43 second phone call, when I was finished what I needed to say & confident that Tim had heard me over his own yelling, I ended the call.

I have received 3 emails from Tim, which I have attached. I have no idea what point Tim is attempting to prove using the picture of his roster or the vehicle log sheet. Tim has also forwarded a screenshot from his phone confirming that he did see the message to cancel the shift when I said that he saw it.

Tim's notes to conversations are inaccurate, some parts are not even understood."

• [89] Ms Parry provided a copy of the email received from Mr Ladd, containing his notes in respect of the relevant conversations:

"Conversation with Sharon Parry, approximately 12.45pm, 5th June 2024. WBRS office.

I attended the office to pick up a roster in my own time.

I sat at the request of Sharon Parry, she opened the conversation by asking why I

would purposely ignore a text that she sent me at 9.19 am, 1/6/24, to cancel a 9.30 am. C/A shift with [James], 11 minutes later. I explained that I had picked up a car

at Tristania to attend the shift at 9.15am. and was in transit, therefore i was unaware

that I had received a message. Sharon then incorrectly insisted that I had seen

the message within one minute of her sending it, and went to the home of [James] even after I knew the shift was cancelled. I have no idea why I would do that. The fact is that I did not see the message Sharon Parry had sent me until 10.55 am, when I sent a reply immediately. I was then accused of been notorious for not answering my phone. I can find not one occasion in over 11 months that i did not call back within 5 minutes in the case of missing a call from the office. My call history. Sharon then went on to ask me

why I was going to a shift at 9.30am when she said it had been moved to 12.30pm. I can find no evidence of notification of a call back within 5 minutes in the case of

missing a call from the office. My call history. Sharon then went on to ask me why I was going to a shift at 9.30am when she said it had been moved to 12.30pm. I

can find no evidence of notification of a change of shift time, further to that i had a

12.00 shift with another client that day. Sharon by this time had raised her tone

and was demanding to know if I respected her. I replied yes. Next she informed me

that the mother of [James] had called the [???] to complain that I had taken [James] from their home against her wishes and that she only agreed for me to so to avoid a confrontation with me. I strongly questioned why [James'] mother would be afraid of me. The fact is that I had an amicable and positive discussion with [James'] mother when I arrived at the door not knowing that the days C/A shift had been cancelled on arrival, and together we agreed that the shift would go ahead seen as I was there and she was infact the one who was sick and the kids less so. I did make the call to risk contracting the flu, covid or cold as I am already exposed to a primary school aged child every day, and C/A was planned for an open air environment. I deemed it an acceptable risk due to wanting to keep consistency in my work with [James] as progress is been made with his behaviours. Sharon then said that she had wanted me to go to Coventry house and clean items on a list. I pointed out to Sharon that I would not have done to the Coventry house and clean items on a list. I pointed out to Sharon that I would not have gone to the Coventry house regardless due to the shift been cancelled only 11 minutes before the designated start time. I then reminded her that I had previously bought to the attetion of the office the 2022 amendments made to our award, covering shift cancellations. Sharon then lobbed her copy of the SCHADS award onto the table i was seated at and told me to find it, i could not do so as i did not have my reading glasses. Sharon then demanded to know what I would do if I contracted covid as I worked with old people, I replied that if i felt any symptoms that i would test myself as per company policy. By this time the conversations tone had turned into shouting. I then had tried to tell Sharon she was right on more than one occasion to defuse the situation, even when she was out of line, as I was feeling extremely uncomfortable and was experiencing high levels of anxiety. I then asked her to sack me if she was not happy with the job I do for the company, Sharon then asked me if that was what I wanted, to which I replied that it was not my choice to make. I then walked out of the office to remove myself from the situation.

In conclusion, I think that the matter was handled extremely poorly by Sharon Parry.

It is my belief that this whole matter could have been avoided if there was a proper problem, instead letting a member of staff who does nothing to encourage company morale or team spirit, continue to contact the office and influence management after her personal house audits in front of other staff, with her little black book, and give her bias, inaccurate opinions of your other more valuable staff members. I also strongly suspect that the mother of [James] did not call the office to complain about my professionalism. I would also suggest that a phone call would be a more appropriate and polite way to cancel a shift 11 minutes from start time when I would obviously be on my way to the clients home.

I pride myself on my honesty and integrity, I feel that I provide a better than average

level of care to your clients, and go the extra yard for the clients and fellow staff members. Thus I am extremely upset and disappointed at the treatment and verbal attack I had to put up with, knowing nothing of the accusations been made against me.

I expect that my earnings will not be reduced due to this unfortunate and avoidable incident. And it is my hope this type of behaviour will never occur again.

Foot note, 8/6/24, confirmed the fact that [James'] mother has at no time called anyone at WBRS to complain about my conduct."

• [90] In notes attached to her incident report, Ms Parry responded to Mr Ladd's emailed notes as follows:

"Note 1 - This is not the first time Tim has attended a cancelled shift.

Note 2 - At no time did I say that the mother might fear confrontation with Tim, I said she might fear confrontation, I did not suggest for one minute that the mother might 'be afraid' of Tim although I question that now, especially after reading from Tim that he decided that the shift would go ahead.

Note 3- Tim's notes state 'I did make the call to risk contracting the flu, covid or cold'. Tim's lack of concern about getting covid is astounding considering the people he works with.

Note 4 - Tim states 'I deemed it an acceptable risk' strongly suggests that Tim did indeed decide the shift was going ahead, not the parent who had cancelled it. His reference to an open-air shift is ridiculous, Tim took him in the car & had to be close enough to put on & take off his seatbelt, the child is 7 years old. This is after I had stated that the child was no to be taken in the car after he caused a car accident.

Note 5 - Tim attaches a flyer from the Services Union which clearly states that I can redirect staff should a shift be cancelled which was the opposite of the point Tim was trying to point out previously is now reminding me that I am wrong.

Note 6 - It is in Tim's job description to perform house duties, his admitting that he would not have gone to the Coventry house regardless is just another example of Tim's lack of respect for management.

Note 7 - During the conversation held on the 5th, Tim did say with attitude, that I could sack him if I wanted in an arrogant tone.

Note 8 - Marie & I are both frustrated with Tim's lack of responses in a timely manner, it wasn't just that day, I attach two examples of Tim not responding in a timely manner.

Note 9 - I attach Tim's roster & his timesheet, this has been an ongoing issue for months & Tim has been asked on more than one occasion not to take it upon himself to provide services to clients who are not on his roster, it was explained to him that the person paying for the service might want the service for themselves, but Tim continued to ignore me. This week Tim has again put on his timesheet expecting to be paid two hours for the Friday when there is no shift.

Note 10 - I am not sure what Tim's point is about the 12:30 finish is, his screenshot shows that I thought it was a 12:00 finish, which it always is however that day, mum had asked for a slight change to attend her daughter's ballet which they did not attend due to stress.

Note 11 - 'Foot note, 8/6/2024 confirmed the fact that [James'] mother has at no time called anyone at WBRS to complain about my conduct' is confirmation that Tim has at least had an inappropriate & possibly just as confronting conversation that Marie & I have had to endure.

Note 12 - One the Public Holiday 24th May, Tim has completed a vehicle log sheet for the Hiace 232 YD. Tim was not rostered that day so he has stolen our van to take out [names] from 8:45 until 13:00 without permission & on his own admission."

• [91] After the incident, Ms Parry sent the following email to the Respondent's President, Mrs Gwyn Wells:

Sorry for inundating you with information however it is what it is I guess.

I have attached copies of everything because I am yet again accused of bullying by someone we now believe has the potential to be very dangerous.

We have been in lock-down since the incident & I am right now trying to purchase an appropriate camera for the office.

• [92] Ms Parry stated that the Respondent's failure to provide a separation certificate to Mr Ladd was an oversight. It was not provided until October 2024.

• [93] During the hearing I inquired of Ms Parry in respect of any disadvantage to the Respondent if the shift had been cancelled by Ms G and Mr Ladd did not perform the work but would still be paid:

Commissioner: Would [James'] family have been charged for that late cancellation?

Ms Parry: They would be. Under NDIS guidelines that we have a 24-hour cancellation policy, so yes, they would have been charged.

Commissioner: So the money would come out of their account and you'd receive it whether the services were performed or not?

Commissioner: So there's no loss to your business by Mr Ladd performing the services or no?

Ms Parry: My perspective is we follow the wishes of the family.

Commissioner: So (indistinct) mutual whether the services are performed or not?

Commissioner: And if the services aren't performed, you would secure more money because you - you ended up paying - you pay Mr Ladd, don't you, whether he performs the services or not?

Ms Parry: Correct. He was to be redirected, but he said he didn't see the text.

Commissioner: All right. My view is that the award does provide (indistinct) the award does permit the organisation, in the absence of any enterprise agreement or otherwise, to cancel casuals at short notice and not pay them?

Ms Parry: I prefer to look after my staff and I prefer to redirect them.

Commissioner: What do you know about the award, then, in respect of casuals?

Ms Parry: I know that casuals can be cancelled, but I choose to look after my staff. They're hard to come by.

Commissioner: Have you ever cancelled a casual shift and not paid them?

Ms Parry: We used to back years ago, but since NDIS and since COVID came in and staff were so hard to come by and so hard to keep.

Commissioner: Do you always them the minimum two hours, do you?

Ms Parry: M'mm. We do. We redirect. We give people the option to say, 'Would you like the day off or would you like to be redirected?' If they choose to have the day off, I don't pay. If they choose to be redirected, I do.

Commissioner: But Mr Ladd, he says that he understood that he would still get paid a minimum two hours. You've never had conversations with him about, 'Would you like to get paid the two hours and do other work?' How many other cancellations has he had on short notice?

Ms Parry: Tim was quite inflexible with his working hours and his availability, and so I tried to work around that, and rather than asking, 'Do you want the day off?' I redirected him because I thought that he'd want the hours.

Commissioner: So you redirected him in the message of the cancellation?

Commissioner: What do you know now of his objection to being there at Coventry House?

Ms Parry: So the Coventry House isn't used very much, and so I rely on staff to go there, make sure bins are empty, make sure that there's no washing on the line and all those sorts of things, and it's clean and ready for the next set of clients coming in. It's really a very basic chore to go in there and make sure the floors and clean (indistinct).

Commissioner; He told you that if he had seen the text, he still wouldn't have done that work?

Ms Parry: That's the way Tim spoke to us in general in those last few weeks. He said to me that he would have gone and washed a car or something.

Commissioner: So in the event that he didn't want - let's say you talked to him before he arrived at [James'] residence and you told him it's cancelled and you then said, 'Go to Coventry House', and he said, 'No', then what?

Ms Parry: I would have said, 'Why?' I would have asked why.

Commissioner: Would you have told him that he would be paid?

Ms Parry: I would have said, 'Why can't you go to Coventry?' I wouldn't have understood why.

Commissioner: And he said, 'I don't want to do that sort of work. I'm not a cleaner'?

Ms Parry: I guess we'd be looking at some disciplinary action, some performance appraisal. (Indistinct) don't rely on us for everything, and so do some other clients. So our clients can't lock doors and cook meals and do things for themselves. They need assistance in the shower and the toilet and all aspects of daily living. So for a staff member to say, 'I don't do cleaning', it's really saying, 'I can't do my job.'

Commissioner: I think your evidence is that he did tell you that?

Ms Parry: I was more worried about the [Ms G] situation that day, but there was no disciplining Tim on the 5th of June.

• [94] In cross-examination, Ms Parry stated that she was still investigating the issue after 5 June 2024 and wanted to speak with Ms G to confirm that she had informed Mr Ladd that she had cancelled the shift. When Mr Ladd attended the office on 5 June 2024, he was not working so Ms Parry didn't consider she could discipline him at that time, and she still wished to speak with Ms G. Ms Parry noted that Mr Ladd stormed out of the office and said, "This is why I don't like coming in here."

• [95] Ms Taylor has been employed as the Respondent's Aged Care Manager since 4 July 2022. Ms Taylor manages the provision of services to clients, and assists Ms Parry in managing staff, schedules, payroll, policies and governance.

• [96] On 1 June 2024, Ms Taylor was aware that Mr Ladd was scheduled to provide community support services for James. While she was driving her vehicle that morning, with Ms Parry in the front passenger seat, she received a telephone call at approximately 9:00am from Ms G. The call came through her Bluetooth loudspeaker, and both she and Ms Parry were able to clearly hear the conversation. Ms Taylor provided the following recollection of the phone conversation:

Ms Taylor: Good morning, Wide Bay Respite, Marie speaking.

Ms G: Not very well, the whole family are sick, and I am going to have to cancel [James'] shift today.

Ms Taylor: Oh, that is not good news, you don't sound well. No problems, we will cancel Tim for today and I hope you all get better soon.

• [97] Ms Taylor witnessed Ms Parry send a text message to cancel James' shift.

• [98] On 2 June 2024, Ms Taylor was again contacted by Ms G, who cancelled James' shift for that day and advised that the family were still very unwell and had colds. During the conversation, Ms G advised Ms Taylor that Mr Ladd had completed the shift with James the previous day and that Mr Ladd had said, "It's okay, I will still take James out and risk being sick."

• [99] Following this, Ms Taylor stated that she immediately informed Ms Parry that Mr Ladd completed the shift with James the day before despite Ms Parry's text message. Ms Taylor stated that she was concerned that Mr Ladd would become ill himself and pose a risk to other vulnerable clients.

• [100] Ms Taylor disputed Mr Ladd's recollection of the events of 5 June 2024. Ms Taylor's recollection of the conversation between Ms Parry and Mr Ladd is as follows:

Ms Parry: Why did you proceed with the services with [James] on 1 June 2024, as I had notified you by text message the services had been cancelled?

Ms Parry: Tim, my phone says that you read the message at 9:18am.

Ms Parry: Tim, the mother advised that they were sick and that she had cancelled the shift. So, when you turned up to the shift, and [Ms G] advised that she had cancelled, you should have contacted On Call to confirm.

• [101] Ms Taylor recalled that Mr Ladd argued that James was not sick, and that he did not receive the text message. The conversation continued:

Ms Parry: You are a parent Tim, so how would you feel if you cancelled the shift, and your request was ignored.

Mr Ladd: [James] wasn't sick, so I continued with the shift. I have kids and they come home all the time with colds, and I never catch them.

Ms Parry: You need to start treating me with some respect as the Manager, Tim and follow instructions when given regarding services.

Mr Ladd: You have to give me 24 hours' notice as per the Award.

Ms Parry: I am following the Award Tim, and when services are cancelled with less than 24 hours' notice, you can be redirected to other duties.

Mr Ladd: That is not correct, I know what the Award says.

Ms Parry: Show me in the Award what you are referring to, so I can see where I am going wrong.

Mr Ladd: I don't have my glasses on me and don't have time for this.

I wouldn't have gone to Coventry anyway even if you had asked me. I don't do housework - I would have gone and washed a car or something.

Ms Parry: When you work at Tristania, you have to do house work.

Mr Ladd: That's different. I am out of here. This is the reason why I hate coming into the office.

• [102] Ms Taylor stated that throughout the conversation, Mr Ladd became defensive, louder and more abrupt, before becoming "extremely angry" when he "stood up and stormed out of the office". Ms Taylor said she discussed what had just occurred with Ms Parry, and they were both concerned about Mr Ladd's behaviour and nervous that he might return to the office that day.

• [103] Following the incident, Ms Taylor promptly completed an incident report. The incident report, dated 5 June 2024, states:

"Staff member Tim Ladd came to the office to pick up his roster. CEO Sharon asked Tim if he had a minute so that she could talk to him about the [James] shift on Saturday that he continued to complete when previously requested to cancel the service, at mum's [Ms G] request, and attend to other duties during this time.

Tim reported that he did not see the text and upon arrival was told that the service was cancelled. Tim then explained that he did not notice that the client [James] was sick and told [Ms G] that he would continue the shift.

When instructed by Sharon that this was not his decision to continue the service, following the family requesting that the service be cancelled - Tim became very agitated and began speaking in a raised voice.

Tim did not think that the parent [Ms G] minded that he made this decision.

When asked by CEO if he thought this was a good decision based on the fact that he also worked in aged care and with other vulnerable clients, that if he was to catch a flu or covid or other infectious disease, this would not be a good outcome for the client himself.

Tim declared that he has smaller children who also bring home all sorts of sickness and he has not caught any of these yet, so thought it was okay.

CEO then explained to Tim that if the parent has advised that the service has been cancelled then he should have contacted On Call to advise.

CEO advised that if a service is cancelled within 24 hours, other duties would be assigned as they were on that day. On this particular day the duties were house cleaning at the respite house.

Tim became very agitated and volatile and in a raised voice declared to the CEO that he does not do housework, he only washes cars.

CEO advised Tim that housework was part of his shift duties while working at the houses.

Tim said that he would prefer to wash cars not do housework.

During this time, Tim stated that he does not cancel shifts when given so little notice. CEO advised Tim that this could not be helped and that On Call follows instructions from the families as soon as they are requested. CEO also advised that cancelled services were beyond Management control.

Tim then shouted at the CEO and asked if she wanted him to quit immediately.

Tim then stormed out of the office with his roster and stated that 'This is the reason that he does not like to come to the office'".

• [104] On 10 June 2024, Ms Taylor was sitting at her desk in the Respondent's office. She observed Mr Ladd enter and sit on a chair at the front of Ms Parry's desk. Ms Taylor chatted about the weather and Mr Ladd's journey to work. Ms Parry then returned and sat at her desk across from Mr Ladd. Ms Taylor stated that Mr Ladd, after being greeted by Ms Parry, immediately and aggressively questioned Ms Parry about the call made by Ms G on 1 June 2024. Ms Taylor described an ensuing discussion to the following effect:

Mr Ladd: Who took the phone call from [Ms G] about the cancelled shift?

Ms Parry: It doesn't matter who took the phone call, that is irrelevant.

Mr Ladd: I want to know who took the call for [Ms G].

Mr Ladd: Your narc is a liar. [Ms G] did not cancel the shift.

Ms Taylor: Tim, we both heard the call as it came through the speaker phone of my car, while we were driving.

Ms Taylor: Stop yelling, Tim. Your behaviour is not very professional.

• [105] Ms Taylor stated Mr Ladd then slammed the front door and stormed off into the carpark. Ms Taylor then immediately locked the front door, as she considered Mr Ladd's actions "threatening" and "intimidating". She stated that she and Ms Parry remained in the locked office for the remainder of the day to process the Respondent's payroll. Ms Taylor then completed an incident report, which states as follows:

"Tim entered the office and sat down in a chair at CEO Sharon Parry's desk. Sharon was in the kitchen making a cup of coffee. Marie and Tim chatted about how nice the weather was and how cold it was when he rides his scooter to work.

Sharon then came out of the kitchen and sat at her desk after greeting Tim. Sharon asked Tim what he wanted to talk about and Tim immediately began to question Sharon as to who took the phone call the weekend before regarding a shift cancellation due to the client being sick.

Tim then declared that he had discussed this with the client's mother and that she said she did not cancel the shift.

Tim then demanded to know, in a raised voice, who took the call from the client's mother on Saturday?

Sharon advised Tim that the person's name had no relevance to the issue.

Tim then became extremely enraged and starting yelling that the 'Narc' was a liar and he immediately stood up and was screaming that the mother did not cancel.

Marie then stood from her chair advised Tim that the call had come through speaker phone and that both on call staff heard the conversation.

He stormed towards the door, stopped and turned around and very aggressively shook his finger at Sharon and yelled again, 'Your narc is a liar'.

I asked Tim to stop yelling and told him that he was not behaving very professionally.

Marie went to the door and shut and locked the front door - also the back door as both Sharon and Marie felt threatened by Tim's rage and how quickly his temper turned volatile.

Both Sharon and Marie were shaken and concerned for client safety in the future should Tim have a temper outburst when with a client.

Sharon advised President of Board Management Swyn Wells that we were in lock down following confrontation by staff member."

• [106] In response to points raised in Mr Ladd's evidence, Ms Taylor denied that the Respondent asked him to arrange or attend coffee groups with clients, as this is not a service the Respondent has ever offered. Ms Taylor considered it "most unlikely" that a client would want to pay for the cost of one of the Respondent's staff members attending a coffee group. When Ms Taylor became aware of Mr Ladd's attendance at coffee groups, she advised Mr Ladd to stop this practice. She therefore denied that she told Mr Ladd that he could claim time for any coffee group meetings.

• [107] Regarding Mr Ladd's attendance at the office on 22 May 2024, Ms Taylor stated that Mr Ladd rarely spent time in the office going through his roster and questioning services, so she was confused as to why he was coming to speak with her. Ms Taylor stated that Mr Ladd asked why his usual Friday groups were not on his roster. Ms Taylor explained that the Respondent was not funded to provide services on public holidays, and that clients were always notified of this and offered an alternative day.

• [108] Concerned about Mr Ladd's associations with clients, Ms Taylor stated that she had previously explained to Mr Ladd that he must maintain professional boundaries; he could be friendly, but not friends, with clients.

• [109] Ms Taylor became aware that Mr Ladd offered to take clients out in his own time, free of charge. Ms Taylor stated that she told Mr Ladd that he could not do this, as he would not be covered by insurance, thereby putting himself and the clients at risk.

• [110] Ms Taylor referred to a safety concern relating to Mr Ladd taking James on his motorbike, as James' mother had advised that he enjoyed riding on motorbikes. Mr Taylor stated that due to James' age, this was prohibited and placed Mr Ladd and James at risk.

• [111] In evidence given during the hearing, Ms Taylor denied that Ms Parry 'lobbed' a copy of the Award at Mr Ladd. She said the folder is too heavy and it would have splattered if it had been lobbed. She denied that Ms Parry yelled at Mr Ladd.

• [112] In response to the evidence of Ms Parry and Ms Taylor, Mr Ladd denied the accuracy of their accounts of the incidents of 5 and 10 June 2024.

• [113] In relation to the 5 June 2024 incident, Mr Ladd stated that during his conversation with Ms Parry, he made a deliberate attempt to keep his arms crossed to ensure that he did not move his arms in a manner that might be considered intimidating. He also stated he made a conscious effort to keep his voice at the same level, or a lower level, than Ms Parry's. He said that he did not become angry towards the end of the conversation.

• [114] Regarding the 10 June 2024 incident, Mr Ladd denied that he became aggressive towards Ms Parry, or that he was yelling. Mr Ladd stated that while he was firm, given Ms Parry was speaking to him in "quite an attacking manner which caught [him] by surprise", he did not speak in an aggressive manner.

• [115] Mr Ladd stated that he believed Ms Parry and Ms Taylor did not immediately lock the door after he left the building, as he was sat in his car directly out the front of the building after he left. He noted that the building has a glass front. Mr Ladd stated he remained in his car for approximately 5-7 minutes while he sent an email to Ms Parry detailing the events that had just occurred.

• [116] Mr Ladd submitted that the position articulated in Byrne v Australian Airlines Ltd,[2] that a dismissal may be harsh regardless of whether there was a valid reason, should be considered.

• [117] He contended, nevertheless, that because the Respondent did not have any concerns with his capacity or conduct, there was no valid reason for the dismissal. Alternatively, Mr Ladd submitted that if the Respondent contends there were valid capacity or conduct issues, he was not provided an opportunity at the time of dismissal to respond to any such concerns. On this point, Mr Ladd referred to Bartlett v Ingleburn Bus Services Pty Ltd,[3] which confirmed "that reason", for the purpose of s.387(b) of the Act, is the valid reason found to exist under s.387(a).

• [118] Mr Ladd submitted that he never received a written warning from the Respondent, despite the incident report provided by the Respondent on 6 June 2024. He further submitted that he was not informed of the grounds for his dismissal at the time of the dismissal, has never received any formal written notice of the dismissal or a separation certificate, was not given any notice of disciplinary meetings, and because of the lack of such notice he was prevented from having a support person.

• [119] The Respondent's Form F3 Employer Response, completed by Ms Parry, referred to Mr Ladd as having engaged in serious misconduct. It stated as follows:

"Tim's behaviour was frightening & aggressive, I deemed him to have engaged in serious misconduct as described by Fair Work.

'Serious misconduct involves an employee deliberately behaving in a way that is inconsistent with continuing their employment. Examples include: causing serious and imminent risk to the health and safety of another person or to the reputation or profits of their employer's business, theft, fraud, assault, sexual harassment or refusing to carry out a lawful and reasonable instruction that is part of the job.'

No reasonable person can expect to continue their employment with vulnerable people, particularly when [many] are non-verbal or incoherent & cannot raise concerns of their own."

• [120] Mr Ladd submitted that the Respondent failed to articulate how his conduct constituted serious misconduct. He argued that the Respondent's incident reports do not provide evidence of him having engaged in serious misconduct, and the true nature of the relevant incidents differs from the accounts provided in the incident reports.

• [121] Mr Ladd denied that he failed to follow a lawful and reasonable directions of the Respondent. In the event the Commission finds that he was non-compliant, Mr Ladd referred to the following passage of Bostik (Australia Pty Ltd v Gorgevski (No 1):[4]

"Employers can promulgate policies and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable."

• [122] Mr Ladd submitted that the circumstances of his case are such that the dismissal, if it related even in part to his non-compliance, was harsh and unjust as he received no formal warning in relation to non-compliance. Further, Mr Ladd submitted that there was no evidence that the Respondent took reasonable steps to monitor compliance and enforce a policy with which he was required to comply. In this regard, Mr Ladd referred to B, C and D v Australian Postal Corporation T/A Australia Post,[5] in which the Full Bench of the Commission stated:

"[A] failure to monitor compliance or enforce a policy can be a relevant factor that weighs against a finding that a dismissal for breach of the policy was not harsh, unjust or unreasonable."

• [123] Despite Ms Parry's contention that her phone showed that Mr Ladd had at 9:18am read the message sent to him at that time, Mr Ladd submitted that he did not receive the message until 9:19am.

• [124] Mr Ladd submitted that he did not subject Ms Parry and Ms Taylor to sustained abuse. He submitted that he was not yelling over the top of Ms Parry, and it was in fact Ms Parry who was yelling at him. Mr Ladd contended that his only purpose in attending the Respondent's office on 5 June 2024 was to collect his roster, and it was at this time the Respondent initiated a disciplinary meeting without notice. Mr Ladd submitted that this was inappropriate.

• [125] Mr Ladd acknowledged that he became defensive during the interaction with Ms Parry on 5 June 2024, but this was in circumstances where the conversation had taken him by surprise, he had been accused of standing over and intimidating Ms G, and his own parenting was called into question.

• [126] Mr Ladd submitted that Ms Parry's conduct on 5 June 2024 in lobbing a folder onto the desk in front of him was unprofessional. He argued that Ms Parry's intention was to humiliate and embarrass him, and that any reasonable person in his position would have become upset and left the building. Mr Ladd submitted that the nature of the conversation with Ms Parry was such that he was not allowed to provide any response to matters regarding his capacity and conduct that the Respondent may have called into question. He submitted that he was not informed of the purpose of the discussion before it took place.

• [127] In respect of the incident on 10 June 2024, Mr Ladd submitted that his behaviour could not have caused a serious and imminent risk to the health and safety of another. He denied that he became enraged, or that he was aggressive and yelling.

• [128] In relation to an allegation that Mr Ladd was not permitted to take James in a car because of a previous occasion in which a child, assumed to be James, caused an accident, Mr Ladd submitted that the Respondent failed to provide any evidence that he was given such an instruction.

• [129] Mr Ladd conceded that he held a misunderstanding of the Award, and was of the belief that where a shift has been cancelled with less than 12 hours' notice the Respondent could not direct him to another job. However, Mr Ladd claimed that the Respondent did not explain this to him in a manner which would have assisted his understanding of the Award.

• [130] Responding to allegations that he routinely provides services to clients who are not on his roster, Mr Ladd said that he had made an agreement with Ms Taylor that he would take a client out for coffee, and that there were handwritten notes on the back of the relevant timesheets in relation to this agreement.

• [131] An incident report completed by Ms Taylor claimed that on 24 May 2024, Mr Ladd completed a vehicle log sheet, but was not rostered that day, meaning he took a van of the Respondent without permission. Mr Ladd "vehemently denies" that he stole a vehicle.

• [132] In the event he is found to have been unfairly dismissed, Mr Ladd submitted that reinstatement would be inappropriate, as he is now a sole trader providing community support services and he has no desire to return to employment with the Respondent.

• [133] Mr Ladd submitted he made a reasonable effort to mitigate his loss in attending a medical centre on 11 June 2024 and obtaining a medical certificate stating that he was unfit for work. Mr Ladd also highlighted the fact that he obtained an ABN on 14 June 2024, registered on Mable to provide community support services on 22 August 2024, and obtained a further medical certificate on 28 August 2024.

• [134] Mr Ladd submitted that his lost remuneration amounted to $39,746.20. He argued that had a formal disciplinary meeting taken place and he was given notice of such, a written warning and a proper explanation of the Award, he would have remained employed for at least a further 26 weeks. Mr Ladd noted that he had no concerns working with the Respondent prior to the events that led to his dismissal, and had not considered looking for work elsewhere.

• [135] Mr Ladd noted that he had an average income of $470.10 gross per week since 16 September 2024, excluding Centrelink payments. He submitted that this amount is not likely to change during the period between the making of any order for compensation and the payment of compensation. Mr Ladd therefore submitted it would be appropriate to deduct an amount of 12 weeks' income, being $5,641.20 from any amount of compensation. He further submitted that there are no known contingencies which would have impacted his likely remuneration had he remained employed with the Respondent, and that no reduction on account of misconduct is appropriate.

• [136] Accordingly, Mr Ladd seeks compensation in the amount of $34,105.00 plus superannuation.

• [137] However, in reply submissions, Mr Ladd amended his projected remuneration lost to the amount of $32,108.44, based on payroll advices exhibited by Ms Parry which demonstrate an average fortnightly gross wage of $2,469.88.

• [138] The Respondent submitted that Mr Ladd engaged in serious misconduct on 1, 5 and 10 June 2024, which provided valid reasons for his dismissal. Referring to Butterfly Systems Pty Ltd v Sergeev,[6] the Respondent submitted that an employee's refusal to comply with a lawful and reasonable direction will almost always provide a valid reason for dismissal.

• [139] In relation to the notification of a reason for dismissal and the employee's opportunity to respond, as set out in ss.387(b) and (c) of the Act, the Respondent submitted that the notice is not required to be provided in a specific form or with a particular level of formality and detail, and that provided the employee is aware of the precise nature of the reason and has a full opportunity to respond, either in person, in discussion or in writing, the requirements of s.387 will be satisfied.[7]

• [140] The Respondent submitted that serious misconduct includes "conduct so serious in breach of the contract that by the standards of fairness and justice the employer should not be bound to continue the employment".[8] The Respondent referred to Miller v University of New South Wales,[9] in which the Full Bench held:

"It may be serious misconduct to disobey an order of an employer which is lawful and reasonable...In determining whether a refusal to carry out the lawful and reasonable direction of an employer constitutes serious misconduct, it is necessary to have regard to all the circumstances, including the nature and extent of the employee's conduct."

• [141] Breach of an employer's policies,[10] as well as abusive and aggressive towards a coworker,[11] were also said by the Respondent to constitute a valid reason for dismissal, and may amount to serious misconduct.[12] The Respondent also referred to Pauling v Roy Hill Operations Pty Ltd,[13] where an employee was dismissed following an aggressive outburst towards a nurse at the employer's medical centre. The Commission considered the employee's rude and aggressive behaviour fundamentally inconsistent with the employer's code of conduct and amounted to a valid reason for dismissal.

• [142] The Respondent submitted that Ms Parry and Ms Taylor are credible witnesses of truth, and their evidence as to 1 June 2024 should be accepted. The Respondent noted that the evidence of the phone call between Mr Ladd and Ms Taylor was corroborated by Ms Parry, who heard the conversation. The evidence demonstrates that Ms Parry sent a clear, lawful and reasonable direction to Mr Ladd not to carry out the service with James, and to instead attend Coventry to undertake chores, and that Mr Ladd read this text message at 9:18am. Discrediting Mr Ladd's evidence, the Respondent argued that Mr Ladd has not provided an explanation or plausible reason as to why the phone records would record the message as 'read' if he had not done so.

• [143] By attending the service with James on 1 June 2024 despite a direction not to do so, the Respondent submitted that Mr Ladd breached the Respondent's Code of Behaviour, and that this is so even on Mr Ladd's own evidence, as he was also informed by Ms G that the shift was cancelled. The Code of Behaviour provides that employees must "work closely with families & carers at all times to follow their instructions". Mr Ladd had completed the Respondent's induction process, which included being provided all of the Respondent's policies and procedures.

• [144] Mr Ladd's additional evidence about being ambivalent to the risk of contracting an illness is, in the Respondent's submissions, sufficient to establish serious misconduct. The Respondent submitted that this behaviour was inconsistent with his obligations under ss.28 and 29 of the Work Health and Safety Act 2011 (Qld) and the Respondent's Code of Behaviour, which requires all staff to "work in & maintain a safe, clean & hygienic environment." The Respondent further agued that Mr Ladd's conduct placed other employees and clients at risk, in contravention of the duty of care owed by employees under the Respondent's COVID-19 policy.

• [145] Ultimately, the Respondent submitted that Mr Ladd's conduct on 1 June 2024 amounted to a refusal to carry out a lawful and reasonable direction, serious misconduct, and a contravention of the Respondent's Code of Behaviour and COVID-19 policy.

• [146] The Respondent submitted that the conduct of Ms Parry and Ms Taylor on 5 June 2024 was appropriate in seeking to understand Mr Ladd's disregard for the instruction given to him on 1 June 2024. The Respondent argued that the evidence revealed on 5 June 2024 demonstrates that Mr Ladd failed to follow Ms G's instructions and in doing so breached the Respondent's Code of Behaviour. Mr Ladd's reasoning that James was not unwell was said by the Respondent not to mitigate the contraventions.

• [147] Mr Ladd's admission on 5 June 2024 that he would not have driven to Coventry to complete chores, even if he had seen Ms Parry's text message, was highlighted by the Respondent as another example of Mr Ladd's failure to follow a reasonable and lawful instructions.

• [148] When Ms Parry raised the risk of contracting COVID-19 and passing it on to vulnerable clients and Mr Ladd replied that he did not mind taking the risk, the Respondent submitted that Mr Ladd contravened the Code of Behaviour and COVID-19 policy. Further, the evidence of Ms Parry and Ms Taylor that Mr Ladd was argumentative, dismissive and aggressive disclosed, in the Respondent's view, a further breach of the Code of Behaviour by Mr Ladd.

• [149] The Respondent submitted that on 10 June 2024, the evidence of Ms Parry and Ms Taylor demonstrates that Mr Ladd came into the office determined to find out who had taken the call from Ms G about the cancellation of the shift. Mr Ladd acted aggressively, shouting, "the narc is a liar" and slammed the door. Ms Parry and Ms Taylor were frightened by this behaviour. The Respondent submitted this conduct amounted to a breach of the Respondent's Code of Behaviour.

• [150] In relation to the dismissal phone call on 10 June 2024, the Respondent submitted that the purpose of the call was to explain the Respondent's position that Mr Ladd had engaged in serious misconduct and provide Mr Ladd an opportunity to respond. However, after Mr Ladd started shouting and acting aggressively towards Ms Parry, it became clear that no constructive discussion about the events of 1, 5 and 10 June 2024 would be had. Ms Parry therefore concluded that the only reasonable step was to dismiss Mr Ladd with immediate effect.

• [151] The Respondent submitted that Mr Ladd's conduct on 1, 5 and 10 June 2024 amounts to serious misconduct and, viewed collectively, provides a valid reason for his summary dismissal. As Ms Parry was personally involved in the relevant incidents, she reasonably believed that Mr Ladd had engaged in serious misconduct. The Respondent submitted that Mr Ladd was afforded procedural fairness, as he was informed of the Respondent's concerns in relation to his conduct, and these concerns were discussed with him both in-person and by phone on three occasions. Mr Ladd was not denied the opportunity to have a support person during any of these discussions, and did not request a support person.

• [152] Accordingly, the Respondent submitted that Mr Ladd's dismissal was not harsh, unjust or unreasonable, and he was not unfairly dismissed.

• [153] In closing submissions, Mr Ladd sought to highlight the unreliability of the read receipt received by Ms Parry in respect of the text message she sent on 1 June 2024. Mr Ladd argued that the read receipt purportedly sent at 9:18am cannot be relied upon, as the iPhone User Guide submitted by the Respondent only provides information regarding messages sent between iPhones, and Mr Ladd has an Android phone.

• [154] Mr Ladd noted that despite Ms Parry's evidence about the importance of him not attending the shift after it was cancelled, she did not make a phone call to Mr Ladd prior to the commencement of his shift. Further, Mr Ladd highlighted that in cross-examination, Ms Parry acknowledged the fact that Mr Ladd's attendance at Ms G's residence warranted an investigation, but not an investigation as to whether his employment should continue or not. Mr Ladd also noted that he did not receive a formal written warning in relation to his action on 1 June 2024, and as a casual employee, he was entitled to decline a direction to attend to another task. He therefore submitted that the 1 June 2024 incident does not provide a valid reason for dismissal.

• [155] Similarly, Mr Ladd submitted that despite the apparent seriousness of his alleged conduct on 5 June 2024, he did not receive a written warning of any kind. Mr Ladd argued that the primary concern Ms Parry had in relation to Mr Ladd was about the shift continuing on 1 June 2024, and not his conduct on 5 June 2024. Mr Ladd noted that in cross-examination, Ms Parry did not provide him with any feedback in relation to his alleged aggressive behaviour on 5 June 2024. In any event, Mr Ladd denied that he was verbally aggressive and abusive on this date.

• [156] In relation to the 10 June 2024 incident, Mr Ladd denied he was angry, intimidating and verbally abusive, and caused the office to go into lockdown. Mr Ladd noted that in cross-examination, Ms Parry agreed that she did not provide him any reasons for his termination or an opportunity to respond other than in the phone call to him on 10 June 2024. Mr Ladd submitted that Mr Turnbull's evidence of the phone call was credible, and Mr Turnbull was shocked by Ms Parry's rude demeanour during the call. On the other hand, Mr Ladd argued that Ms Taylor was not a credible witness in respect of the evidence she gave about the phone call. Mr Ladd noted that Ms Taylor gave evidence that she could not remember the length of the call and that she did not discuss the call with Ms Parry despite the alleged seriousness of the matters discussed. Mr Ladd argued that Ms Taylor's evidence of the call was evasive, vague and unreliable.

• [157] In relation to ss.387(b)-(e) of the Act, Mr Ladd submitted that the evidence discloses that he was not notified of the reason for dismissal, was not given an opportunity to respond, was not allowed the opportunity to request a support person and was not warned in relation to any unsatisfactory performance. He further argued that the Respondent has not provided any evidence that would suggest that the size of the Respondent, or the absence of dedicated human resource staff, impacted on the procedures followed in effecting the dismissal.

• [158] In summary, the Respondent submitted that evidence in these proceedings does not demonstrate that Mr Ladd was unfairly dismissed. The Respondent submitted that its evidence was compelling and demonstrated that Mr Ladd engaged in serious misconduct on 1, 5 and 10 June 2024, which provided valid reasons for the dismissal. Having regard to the criteria in s.387 of the Act, the Respondent submitted that the dismissal was not harsh, unjust or unreasonable, and the application should be dismissed. In the alternative, the Respondent argued that should the Commission find Mr Ladd was unfairly dismissed, his misconduct should result in a deduction in compensation to nil, or at most, an amount equivalent to 1-2 weeks' gross wages.

• [159] The Respondent submitted that there were many instances where Mr Ladd's evidence lacked credibility, such as:

(a) in cross-examination, when Mr Ladd stated that the members of James' household had tested for COVID-19 and the test results were negative, despite this evidence not being included in either of Mr Ladd's witness statements;

(b) where Mr Ladd initially denied that there was a risk of him contracting COVID-19 or the flu after proceeding with the shift on 1 June 2024, and then later conceding that there was a chance of contracting these illnesses; and

(c) where Mr Ladd admitted in cross-examination to "making up" evidence about not wanting to hurt James' feelings by not proceeding with the shift. The Respondent noted that it was only after intervention from Mr Eames that Mr Ladd said that his response was intended as a facetious answer to the question asked of him.

• [160] The Respondent also argued that Mr Turnbull, a friend of Mr Ladd, was an unreliable witness who provided implausible evidence about his ability to recognise Ms Parry's voice. The Respondent also noted that Mr Turnbull's evidence about the timing of the phone call on 10 June 2024 was inconsistent with Mr Ladd's evidence. The Respondent submitted that its witnesses were reliable and credible, who provided clear, persuasive and consistent evidence in relation to Mr Ladd's behaviour towards them.

• [161] In relation to the 1 June 2024 incident, the Respondent submitted that Mr Ladd confirmed he had completed the Respondent's induction process, and was therefore aware of the relevant policies. The Respondent argued that the evidence shows that Ms Parry sent a clear, lawful and reasonable direction to Mr Ladd via text message, and she believed that the Award permitted the cancellation of a casual employee's shift without pay, but wanting Mr Ladd to retain his hours, she offered redirection to alternative work in accordance with the Respondent's policy.

• [162] The Respondent submitted that Mr Ladd's evidence that he did not look at his phone upon arrival at Ms G' house was not credible, as he arrived approximately 10 minutes early at 9:20am and had his phone on the front seat of his car at the time of arrival.

• [163] Mr Ladd gave evidence that upon his arrival, Ms G said that she had already called the Respondent to cancel the shift, and despite this, he did not check his phone or call the Respondent to enquire about the possible cancelation of the shift. Mr Ladd later acknowledged that it would have been prudent to call the office to confirm the status of the shift before proceeding. The Respondent noted that Mr Ladd attempted to justify his behaviour by claiming that he was aware that other members of James' household returned negative COVID-19 test results, despite there being no evidence of this in either of Mr Ladd's witness statement or any independent evidence. The Respondent therefore submitted that Mr Ladd's evidence in this regard should be rejected.

• [164] The Respondent noted that Mr Ladd gave evidence that he determined James was not unwell because he observed him doing star jumps at the front door, but also conceded that he was not medically qualified to assess whether James was unwell or not. The Respondent also submitted that Mr Ladd gave evidence that he did not mind taking the risk of catching the flu or COVID-19, despite Mr Ladd's acknowledgement that may of the Respondent's clients are vulnerable, and these illnesses may pose a risk to their health. The Respondent therefore submitted that Mr Ladd's indifference in this regard was a serious and significant breach of the Respondent's policies, and directly contravened the duty of care owed by the Respondent's employees under the COVID-19 Policy, the Employee Manual, and the health and safety obligation imposed under the Work Health and Safety Act 2011 (Qld). Further, the Respondent highlighted that Mr Ladd conceded under cross-examination that he had breached the Respondent's Code of Behaviour and COVID-19 Policy by proceeding with the shift, and that this was a serious matter given the vulnerability of the Respondent's clients. The Respondent submitted that the evidence of Mr Ladd taking James on a motorbike and organising unauthorised events outside of scheduled services, such as the "coffee group", demonstrates a pattern of disregard for the Respondent's policies by Mr Ladd.

• [165] In completing the service with James on 1 June 2024, the Respondent submitted that Mr Ladd refused a lawful and reasonable direction from the Respondent, breached the Respondent's Code of Behaviour insofar as it requires employees to "work closely with families & carers at all times to follow their instruction", and contravened the COVID-19 Policy.

• [166] In relation to the 5 and 10 June 2024 incidents, the Respondent submitted that Ms Parry and Ms Taylor are reliable and credible witnesses, and their evidence should be accepted.

• [167] A dismissal may be unfair, when examining if it is 'harsh, unjust or unreasonable' by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:[14]

"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 act, 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."

• [168] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter.[15]

• [169] In determining this matter, I have generally preferred, where facts were contested, the evidence of Ms Parry and Ms Taylor to that of Mr Ladd. I consider that Mr Ladd gave false evidence to the Commission in respect of his attendance upon James' household and his oral evidence that Ms G informed him that the family had tested negative to COVID-19. I consider that Mr Ladd simply made this evidence up in the witness box and it is entirely inconsistent with his earlier evidence that he made a judgment as to the likelihood of contracting COVID-19 from a family that was unwell. He had earlier given evidence that he considered providing the service to James to be an acceptable risk because James was making progress with his behaviours; he had every opportunity to provide evidence at that time that Ms G had informed him that the family had tested negative.

• [170] When the risk of contracting COVID-19 was discussed on 5 June 2024 in the office, Mr Ladd did not provide any reassurance to Ms Parry that James' household had tested negative. He even sent a contemporaneous email declaring that he 'made the call' to determine his risk of contracting the flu, COVID-19 or a cold. He would not have needed to write that in an email if he had been informed by Ms G that the family had tested negative.

• [171] Nor did he make any mention of it in the five months between being dismissed and giving oral evidence in these proceedings, despite providing two witness statements.

s.387(a) - Whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees)

• [172] When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:

"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 reasons must be valid in the context of the employee's capacity or conduct or based on upon the operational requirements of the employer's business. Further, in consideration 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, common-sense way to ensure that the employer and employee are treated fairly'."

• [173] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[16]

• [174] Mr Ladd was ultimately dismissed by Ms Parry for his conduct on 10 June 2024 during his attendance in the office and his subsequent demeanour on the telephone when she telephoned him.

• [175] The Respondent also submitted that Mr Ladd's conduct on 1 and 5 June 2024 was a factor in the Respondent's decision to dismiss him, but it did not dismiss him at the time of those incidents as more information was being gathered.

• [176] I shall come to the telephone conversation of 10 June 2024 later.

• [177] The Respondent was unaware at the time of the dismissal that Mr Ladd had taken James in his personal vehicle out of the family home during the 1 June 2024 visit. The Respondent did not want James in vehicles as it concluded that it was not safe to do so as he had reportedly caused an earlier car accident to occur.

Was there a valid reason for the dismissal relevant to 1 June 2024?

• [178] I do not consider it necessary to determine whether Mr Ladd saw the text message and read it at or around 9:18 - 9:19am on 1 June 2024, prior to attending James' house. Mr Ladd's evidence is that he keeps his phone in his hat, and he left his phone in his hat in his car when he went to the front door to greet James and his mother.

• [179] Upon being informed by Ms G that she had cancelled the service, I consider it would have been appropriate for Mr Ladd to have obtained his phone and make inquiries with the Respondent. Instead, he talked Ms G into permitting him to take James to the beach, despite knowing the family was unwell. Mr Ladd knowingly breached the Respondent's COVID-19 policy when he did this. It was entirely inappropriate for him to make decisions which could put other vulnerable clients at risk, simply because he has a primary school aged child and on his account is exposed to illnesses from his child's attendance at school.

• [180] I am further satisfied that Mr Ladd breached the Respondent's Code of Behaviour by interfering with Ms G's earlier decision to have cancelled the services for James on 1 June 2024 due to the family being unwell. On the evidence before the Commission, Ms G has several disabled children. Mr Ladd's interference with her decision making in respect of James on 1 June 2024 was inappropriate and her earlier communication to Ms Taylor that the services were cancelled should have been respected by Mr Ladd when he was informed by Ms G when attending at her doorstep. As it eventuated, James was too ill to partake in the service on 2 June 2024. Mr Ladd was obliged by the Respondent's Code of Behaviour to respect Ms G's decision which he failed to do.

• [181] I have earlier determined not to accept Mr Ladd's evidence that he was informed by Ms G that the family had tested negative to COVID-19.

• [182] On the evidence before the Commission, I would be inclined to find that there was a valid reason for the dismissal relevant to Mr Ladd's conduct on 1 June 2024.

Was there a valid reason for the dismissal relevant to 5 June 2024?

• [183] Mr Ladd attended upon the office on 5 June 2024 on his own volition to review his roster. Mr Ladd communicated that if he had been instructed to perform chores at Coventry House on account of the shift having been cancelled, he would have refused the instruction. I am satisfied that the instruction would have been a lawful and reasonable direction to Mr Ladd, and Mr Ladd's stated refusal would have been belligerent conduct.

• [184] Having considered the evidence of the parties, with some divergence between their oral account and physical account relevant to whether the award was lobbed onto the table, I consider that while Mr Ladd was somewhat agitated, he wasn't so aggressive as to cause reasonable fear in the workplace. Mr Ladd left the office, noting that he didn't want to be there.

Was there a valid reason for the dismissal relevant to 10 June 2024?

• [185] I consider that when Mr Ladd attended the office on 10 June 2024, he was in a combative mood. He wanted to understand why it was suggested that Ms G had complained about him. On his own evidence he responded that he was being unprofessional and would leave. On his own account he stated that Ms Parry ought to check the facts of her 'narc' before accusing people. Mr Ladd gave evidence at the hearing that he slammed the sliding door.

• [186] Having observed Mr Ladd during the hearing and how, at times, he became sarcastic, especially when I addressed his facetious answer, I accept Ms Parry's evidence that Mr Ladd appeared to be bright red in the face and had his arms crossed. I conclude that Mr Ladd was ready for an argument and that this was combative and intimidating for Ms Parry and Ms Taylor. Ms Taylor had to step in to have Mr Ladd check his behaviour. Ms Parry and Ms Taylor are older women; Ms Taylor stated in evidence that she is 62 years old.

• [187] Ms Parry's evidence is that Mr Ladd pointed his finger at her and said, "The narc is a liar". Mr Ladd could not recall if he pointed his finger at Ms Parry. I accept this is what Mr Ladd said to her, and I accept he pointed his finger at her.

• [188] Mr Ladd's slur in relation to a colleague, named during the hearing but for some reason raised by him on 10 June 2024 without context, was highly unusual behaviour. It did not make sense to Ms Parry and Ms Taylor on 10 June 2024, and it made little sense during Mr Ladd's evidence given in November 2024. In essence, he was stating that a colleague was an informer, but with false information, making up stories that he had read the message sent by Ms Parry when he claimed he had not. Yet the discussion with Ms Parry and Ms Taylor on 10 June 2024 was about whether Ms G had made a complaint about him and had nothing to do with whether he had read the message at around 9:18am on 1 June 2024.

• [189] Declaring on 10 June 2024 that an unnamed colleague is a narc during the heated oration would, I accept, be very troubling for the Respondent. I accept that it would lead to a lack of trust and confidence in Mr Ladd being able to safely perform his role and work cooperatively with colleagues if he could be so aggressive in a short amount of time in the office.

• [190] In a role where one is required to care for vulnerable and elderly clients, it is understandable that Ms Parry held great concerns not only for the safety of herself and Ms Taylor, but for clients if they were exposed to Mr Ladd's aggressive outburst.

• [191] It is understandable that Ms Parry and Ms Taylor locked the office door after Mr Ladd left. They held genuine concerns for their safety and made relevant reports to the President of the Respondent. In oral evidence, Mr Ladd suggested that they were not scared. I am satisfied that they were scared and indeed considered themselves to be in "lockdown".

• [192] A short time later, Ms Parry telephoned Mr Ladd. He was at home, hanging washing. I accept that Ms Parry's first priority was to ensure that Mr Ladd didn't attend his next shift that same day on account of his conduct at the office a short while earlier.

• [193] There is some conflicting evidence between Ms Parry, Mr Ladd and Mr Turnbull as to what exactly was said. It is understood that the phone call lasted 43 seconds. Ms Parry made contemporaneous notes in the form of an incident report at around 1:30pm that day.

• [194] I consider Ms Taylor's evidence as to what was said during the overheard phone call to be of little assistance. Ms Taylor had a terrible memory.

• [195] When Ms Parry telephoned Mr Ladd, he stated that he was intending on performing his midday shift. Ms Parry informed him that she could not let him do that given what had occurred that morning. I consider it more likely than not that Mr Ladd exclaimed repeatedly that she is a bully. On Ms Parry's account, she terminated Mr Ladd after the first exclamation that she is a bully. On her account, he stated it a further two times, but she had already informed him of the dismissal and his behaviour had been frightening.

• [196] I consider it was appropriate for Ms Parry to have informed Mr Ladd that he could not perform the midday client visit given his behaviour earlier that morning. Upon Mr Ladd stating that he did intend to work the shift, Ms Parry had a course of action she could have taken. She could have informed Mr Ladd that he was stood down pending further communication, or paid him for the one shift pending further communication. Instead, Ms Parry communicated a dismissal to Mr Ladd.

• [197] I accept that Ms Parry's priority was to ensure that Mr Ladd completely understood that he was not to work the next shift. Upon him saying that he intended to do so, Ms Parry's long-term reasoning appeared to abandon her. She acted instinctively to dismiss. She considered that he was repeatedly speaking over the top of her.

• [198] Having observed Mr Turnbull's capacity during the hearing, I consider it more likely than not that following the call, he and Mr Ladd discussed what was said and Mr Turnbull's evidence was likely tainted by the more robust and influential Mr Ladd. It is not a direct criticism of either of them, as the telephone call was quite short, and it seems, heated. They did, however, have the opportunity to workshop what had just occurred and it's likely that Mr Ladd's references to Ms Parry being a bully have been omitted from their evidence On the balance of probabilities, I consider that Mr Ladd did repeatedly refer to Ms Parry as a bully during the call.

• [199] Ms Parry has a responsibility to the Respondent's clients and families. I am satisfied that Mr Ladd acted in a frightening and aggressive manner when in the office on 10 June 2024. I am satisfied that his conduct was a valid reason for the dismissal.

• [200] Having regard to Mr Ladd's conduct on the telephone with Ms Parry a short time thereafter, I consider it more likely than not that Mr Ladd spoke over the top of Ms Parry, but Ms Parry could have informed Mr Ladd that his particular shift was cancelled and he would be contacted in coming days to discuss the issue further. I consider that Ms Parry was still rattled by the earlier incident, but Mr Ladd's actual conduct during the telephone call was not a valid reason for the dismissal.

• [201] I am satisfied that there were valid reasons for the dismissal, that being Mr Ladd's conduct on 1 June 2024 and his conduct on 10 June 2024 in the office.

s.387(b) - Whether the person was notified of that reason

• [202] Mr Ladd was not properly notified on the reason for the dismissal. When a separation certificate was requested, the Respondent failed to provide it to him. Ms Parry's failure to provide the information requested was not justified by her concerns that she needed space between herself and Mr Ladd.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

• [203] The Respondent was still conducting its investigation into Mr Ladd's 1 June 2024 conduct on 10 June 2024 when he acted aggressively in the office. The Respondent was still trying to understand how it is the service to James had taken place on 1 June 2024. While Mr Ladd's conduct in the office on 5 June 2024 was unpleasant, it was not so frightening to warrant standing Mr Ladd down. Ms Parry had resolved, however, to issue to Mr Ladd a written warning but had not yet had the opportunity to do so.

• [204] I have earlier found that Mr Ladd's conduct in the office on 10 June 2024 was frightening and unacceptable. When he was telephoned a short time later and asked if he was going to service a client at midday, he responded that he intended to do so. Upon being called a bully, Ms Parry immediately dismissed Mr Ladd. Mr Ladd was not given an opportunity to respond to Ms Parry's concerns about his conduct in the office on 10 June 2024, but to some degree, that is because Ms Parry was concerned about him servicing clients if he were to be in an agitated state.

s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal

• [205] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

• [206] There is no positive obligation on an employer to offer an employee the opportunity to have a support person. The Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542] states the following:

"This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them."

• [207] There was no planned meeting to discuss matters relating to the dismissal. There was no unreasonable refusal to allow Mr Ladd a support person because there was not a meeting as such.

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

• [208] The dismissal was not related to unsatisfactory performance; it was for misconduct.

s.387(f) - Whether the respondent's size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

• [209] The Respondent is not a small business as defined in the Act, but is not, relatively speaking, a medium or large business. Ms Parry was tasked with all functions, including human resources. I consider that the Respondent's size impacted on the procedures followed, as did the absence of a dedicated human resource management specialist.

• [210] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

• [211] Mr Ladd became so unwell after the telephone dismissal on 10 June 2024 that he was certified unfit by a GP (not a regular GP) for a period of three months. I find that to be an extraordinarily long period of time to declare a relatively new patient to be unfit for work. As it eventuated, Mr Ladd promptly registered himself as a sole trader and commenced offering services to the community within that three-month period, despite being declared unfit for work.

• [212] I consider it a high probability that even if Mr Ladd had not been dismissed on 10 June 2024 during the telephone call, and had simply been informed that he was stood down as a casual employee, pending a determination of the Respondent's concerns, he would have likely visited upon the GP and obtained a medical certificate declaring him unfit for work for some period of time. As a casual employee, Mr Ladd would not have been in receipt of any payment during this period while the Respondent considered the issues before it.

• [213] I consider it highly likely that if Mr Ladd had not been dismissed over the phone on 10 June 2024, he would have been dismissed a very short time thereafter on account of his conduct. As a casual employee, even if he was medically fit to perform work, he would not be entitled to any payment while the Respondent made a decision to dismiss him.

• [214] I have had regard to the decision made by Mr Ladd to have James travel with him on his moped despite James being only seven years of age and a child with low-functioning autism. As a licensed rider, it is Mr Ladd's responsibility to know the laws regarding pillion passengers. In Queensland, the age of a pillion passenger is eight, together with being able to put one's feet on the passenger footrests. It appears to me to be an extremely high-risk activity to take James out on a moped given his disability, irrespective of the offence of him being less than eight years of age. It is reckless, even more so when James has previously removed his seat belt in the car being driven by Mr Ladd.

• [215] Mr Ladd was not dismissed for this; it happened some time ago. It does, however, demonstrate a cavalier attitude towards his responsibility to vulnerable clients. This was evident in his decision to insist upon servicing James on 1 June 2024, despite Ms G having cancelled the service.

• [216] I have had regard to Mr Ladd's decision to continue the service to James on 1 June 2024 despite his obligation to make contact with the Respondent upon learning from Ms G that the service for James had been cancelled by her. Mr Ladd showed a wilful disregard for attempting to contact his superiors to seek instruction or clarification.

• [217] I consider it is necessary to have regard to Mr Ladd's evidence before the Commission that I have concluded was not truthful, and his responsibility to the Respondent and to the community to provide trust and confidence in the work of caring and supporting vulnerable and elderly people.

• [218] I have determined that there were valid reasons for the dismissal.

• [219] I have determined that Mr Ladd was not properly notified of the reasons for the dismissal.

• [220] I have determined that Mr Ladd was not provided with an opportunity to respond to the reasons related to his conduct.

• [221] There was no unreasonable refusal by the Respondent to allow Mr Ladd a support person.

• [222] The dismissal was not in respect of poor performance; it was for misconduct.

• [223] The size of the Respondent's enterprise impacted on the procedures followed and it does not have dedicated human resource specialists.

• [224] While there was a lack of procedural fairness afforded to Mr Ladd during the telephone call of 10 June 2024 in which he was dismissed, I am of the view that he would have been dismissed within days of having the matters put to him and allowing him an opportunity to respond. As a casual employee, Mr Ladd would not have been entitled to any payment during this period. At all times, Mr Ladd has been comfortable with the way he conducted himself. Accordingly, I consider that if he had been afforded the opportunity to respond to the Respondent's concerns, he would not have demonstrated any contrition in respect of his conduct, nor provided the Respondent with any reason to continue the employment.

• [225] I consider, therefore, that the result would have been the same, and having heard Mr Ladd's evidence, there is nothing that he would have said or done to have changed the Respondent's mind in this matter. I do not think the Respondent's decision would have been disturbed if he had been afforded the opportunity to respond. Accordingly, even if Mr Ladd had been afforded the opportunity to respond, I conclude that the Respondent's decision to dismiss would be reasonable in all of the circumstances.

• [226] Taking all of the circumstances of this matter into account, I have not been convinced that the Respondent's decision to dismiss Mr Ladd because of his conduct was disproportionate. I find that the dismissal was not harsh, unjust or unreasonable.

• [227] The application is dismissed. An order [PR786142] will be issued with this decision.

K Eames and A Francis of Gold Law Hervey Bay, for the Applicant.

F Hawkins and D Anderson of Taylor Rose, for the Respondent.

[3] [2020] FWCFB 6429, [19].

[4] (1992) 41 IR 452, 460.

[5] [2013] FWCFB 6191, [67].

[6] [2021] FWCFB 18, [28].

[7] Citing Bushell v Environmental Secretary [1981] AC 76; Gibson v Bosmac Pty Ltd (1995) 130 ALR 245; Tango v The Southern Cross Times (2000) AIRC 50.

[8] North v Television Corp Ltd [1976] CthArbRp 1465; (1976) 11 ALR 599.

[9] [2001] AIRC 1055, [58]-[59].

[10] Citing Selak v Woolworths (2008) 171 IR 267, [33].

[11] Citing Elmazovski v Fletcher Insulation [2021] FWC 5990.

[12] Citing Koch v Advantage Communication & Data Pty Ltd [2016] FWC 6937.

[13] [2016] FWC 7648.

[15] Sayer v Melsteel [2011] FWAFB 7498, [20].

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

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