s.394 - Unfair dismissal

• [1] On 5 November 2024, Mr William Daws (the Applicant) lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Pringles Ag-Plus Pty Ltd T/A Emmetts (the Respondent) which occurred on 15 October 2024.

• [2] The matter was allocated to my Chambers on 28 November 2024.

• [3] On 2 December 2024, my Chambers issued a Notice of Listing to the parties advising a Merits Hearing was listed on 7 January 2025 and provided Directions for the filing of material.

• [4] On 12 December 2024, the parties participated in a Member Assisted Conciliation before Deputy President Masson. The matter was unable to be resolved.

• [5] The Respondent sought an extension of time in respect of the filing of material which was declined and subsequently appealed. The Decision of Deputy President Colman deals with this matter in further detail.[1] The appeal was unsuccessful.

• [6] The Applicant filed submissions, a witness statement and reply statement. The Respondent filed submissions, supporting documents and witness statements from Mr Bailey Maitland (Apprentice Service Technician), Mr Thomas Ryan-Spearitt (Technician), Ms Jodie Black (Service Administrator), Ms Jordan Wood (Branch Manager - Cummins), Ms Stephanie Anderson (Service Manager - Eyre Peninsular) and Mr Nicholas Heath (Territory Manager). All of the witnesses gave evidence and were cross-examined.

• [7] The material filed was collated into a Digital Court Book (DCB) and sent to the parties on 23 December 2024. The DCB was accepted into evidence with the exclusion of the 'Minter Ellison Book of Documents' contained at pages 12 - 284 of the DCB (with the exception of pages 127 - 129, 177 - 179, 258 - 259, 277 - 278) which appeared to concern a Workers Compensation Claim made by the Applicant.

• [8] The Hearing was conducted in person, in Adelaide at 10:00am (SA) Tuesday, 7 January 2025. The Applicant was represented by Mr M Bergander-Florek of Counsel, the Respondent was represented by Mr W Snow of Counsel, permission was granted pursuant to s.596(2) of the Act.

• [9] During cross examination the Respondent produced an Excel Spreadsheet which contained an excerpt of its training records, and a letter dated 26 July 2023. These items were marked R1 and R2 respectively.

• [10] The Respondent sells and services rural farming equipment in a number of locations including the town of Cummins in Eyre Peninsular. Mr Daws is a 41 year old qualified diesel mechanic who was employed by the Respondent as a Leading Hand.

• [11] Mr Daws supervised a number of considerably younger employees in the workshop, including Mr Maitland and Mr Ryan-Spearitt and was responsible for allocating work to his sub-ordinates.

• [12] The Respondent alleged that Mr Daws acted inappropriately towards his subordinates, spoke ill of female staff, and intimidated subordinates in order to find out who had made a complaint about him. The Respondent contends that the employment relationship was irretrievably broken at the time of the dismissal with a number of employees making complaints about Mr Daws conduct, with some employees leaving the workplace as a result of its toxic nature.

• [13] Mr Daws denied treating his subordinates inappropriately, disparaging female employees and intimidating employees to determine who the complainant was.

• [14] Mr Daws contended that prior to his dismissal he was suffering stress resulting from the workplace environment. That claim is the subject of a contested workers compensation claim. The Applicant also filed an Anti-Bullying Application which was discontinued after he was dismissed.

• [15] Mr Daws contended that the Respondent was bullying him, did not act appropriately on his complaint, that the Respondent took an inconsistent approach to the use of inappropriate language at the workplace and that Ms Black, Ms Anderson and Mr Maitland were trying to push him out of his job.[2]

• [16] In order to determine the contesting factual accounts, credit findings were required.

• [17] The relevant provisions of the Act are as follows:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was as a regular casual employee; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee's period of employment with the new employer.

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.

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

• [18] The provisions of the Act which are relevant to the merit include:

387 Criteria for considering harshness etc.

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.

Note: For the purposes of paragraph (a), the following conduct can amount to a valid reason for the dismissal:

(a) the person sexually harasses another person; and

(b) the person does so in connection with the person's employment.

• [19] There was no dispute that Mr Daws was dismissed, or had completed the minimum employment period. Mr Daws' earnings were below the threshold and the Respondent was not a small business.

• [20] There were no submissions that Mr Daws was not protected from unfair dismissal within the meaning of s.382 of the Act, and I find that he is protected from unfair dismissal.

• [21] The relevant evidence is summarised as follows:

• [22] Mr Bailey Maitland is a young Apprentice Service Technician who commenced employment in May 2023. Whilst rarely working directly with Mr Daws, Mr Maitland was aware of a falling out between Mr Daws and Ms Black and Ms Anderson.

• [23] Mr Maitland advised that Mr Daws would refer to Ms Black and Ms Anderson as 'the bitches upstairs' and/or the 'service bitches.' The frequency of these references increased to the point it would occur almost every day.

• [24] Mr Maitland observed that the working relationship in the workshop was such that when Mr Daws entered the workshop everything would go quiet as no-one knew what to say or do.

• [25] In August 2024, Mr Maitland reported his concerns regarding Mr Daws to Ms Anderson and Ms Wood.

• [26] After the complaint was raised Mr Daws approached Mr Maitland and asked who had 'snitched' him out to Ms Wood and said 'I bet it was you dog ass'. Mr Daws (who was physically much larger than Mr Maitland) walked up very close to Mr Maitland in the washpad area, pointed his finger at him and asked if he had snitched him out to Ms Wood. Mr Maitland was intimidated by this conduct.

• [27] Mr Maitland recalled Mr Daws nicknaming him a 'cowboy' because he played country music and another employee (Wade) as a 'fashionista' as a result of a jacket he wore. As the name calling persisted, it negatively impacted his working relationship with Mr Daws.

• [28] These allegations were denied by Mr Daws.

• [29] Mr Thomas Ryan-Spearitt was employed as a Technician in the Workshop in March 2022. Mr Ryan-Spearritt worked daily with Mr Daws, who allocated work to him and others.

• [30] In addition to the statement submitted in these proceedings, Mr Ryan-Spearitt provided a statement concerning his observations of Mr Daws conduct, which he signed on 14 August 2024. Mr Ryan-Spearitt elaborated on this statement whilst giving evidence.

• [31] Mr Ryan-Spearritt recalled that Mr Daws used his power to give the less enjoyable jobs to a single person which might rotate depending on changing workshop relationships. Mr Ryan-Spearitt observed that employees 'would walk on egg-shells' around Mr Daws to avoid up-setting him.

• [32] Mr Ryan-Spearrit often heard Mr Daws refer to Ms Black as a 'bitch' and worse.

• [33] Mr Ryan-Spearrit said that Mr Daws treatment of women and the way he ran the workshop created a horrible atmosphere to work, to the point he was considering working elsewhere.

• [34] Ms Jodie Black is employed by the Respondent as a Service Administrator and as part of that role spoke with Mr Daws on most days.

• [35] Ms Black gave examples of the difficult working relationship she had with Mr Daws, including her observation that he would belittle staff in front of others for minor issues or little mistakes. On one occasion Mr Daws told Ms Black and the service scheduler that they had no right to talk directly with customers and that he should be the single point of customer contact.

• [36] Ms Black and Mr Daws had an argument on 4 July 2024 about the payment of outstanding invoices before further work was scheduled. Despite being advised by Ms Black that the relevant invoices had been settled, Mr Daws raised his voice, stated that Ms Black did not know what she was talking about and that the Service Manager (Ms Anderson) has no idea what she is doing. Mr Daws got angry and swore at Ms Black. Ms Black was later informed that Mr Daws was accusing her of talking down to him and that 'Jodie was nothing but a bitch'.

• [37] Ms Stephanie Anderson is the Service Manager for the Respondent, and Mr Daws reported to her.

• [38] In August 2023, Ms Anderson placed Mr Daws on a performance management plan after a complaint by a (then) staff member that Mr Daws was picking on him. The intent of the performance management plan was to educate Mr Daws about language and effective communications in the workplace. It appears that the management of Mr Daws' behaviour at this time was given a lesser priority as the business was in the process of being sold to the current owners of the Respondent.

• [39] Ms Anderson had previously witnessed Mr Daws sing a derogatory song in part directed at her. No action in respect of this conduct appeared to have been taken at the time.

• [40] With respect to the allegations that led to Mr Daws' dismissal, Ms Anderson commenced the disciplinary proceedings and conducted a meeting with Mr Daws on 12 July 2024, but removed herself from the process shortly thereafter, when Mr Daws requested she discontinue her involvement.

• [41] As can be seen from the meeting notes, Mr Daws rejected the allegations put to him on 12 July 2024. Ms Anderson stated that Mr Daws appeared angry that the allegations had been made against him and did not accept responsibility for his actions.

• [42] The disciplinary process was completed by Mr Heath.

• [43] I accept that Ms Anderson sent a text message to Mr Daws containing the word 'cunt'. I am unsure if this was sent in a work context or not. Ms Anderson gave evidence that she heard employees, Mr Cameron & Mr Cunningham refer to Mr Daws as 'cunt' and did nothing to admonish them. These two incidents do not reflect well on Ms Anderson and raises the question of whether a double standard exists. It confirms the evidence that a sub-optimal working environment exists at the Respondent's Cummins premises.

• [44] Mr Nicholas Heath was the Territory Manager and a member of the Respondent's senior leadership team.

• [45] Mr Heath provided a copy of Mr Daws' current Contract of Employment[3] and the conduct of the investigation of a complaint made against Mr Daws by Ms Black on 8 July 2024. Mr Heath was responsible for the conduct of the investigation and advising Mr Daws of the Respondent's decision to terminate his employment.

• [46] The position description attached to Mr Daws' Contract of Employment requires him to 'Work effectively as a group and mentor other apprentices and qualified technicians and encourage positive behaviours within the group' and 'Work with all team members in a professional and safe manner'.

• [47] Mr Daws' Contract of Employment relevantly required him to:

• Perform his role diligently; and perform his duties in a proper manner.
• Enhance the welfare of the Respondent (which would include the welfare of employees).
• Comply with the Respondent's Policies and Procedures (including the Bullying and Inappropriate Behaviour Policy, and the Code of Conduct).

• [48] Mr Heath submitted that the Bullying and Inappropriate Behaviour Policy committed the Respondent to providing a safe and respectful environment for staff and clients free from bullying and inappropriate behaviour and required all of the Respondent's staff (including Mr Daws) to treat others with dignity, courtesy and respect. Mr Health also submitted the Code of Conduct Policy. The policy document provided greater detail of the behaviours that would be contrary to the policy. The Applicant did not contend that the behaviours alleged were consistent with his obligations and/or the policies, he simply denied engaging in the conduct.

• [49] Mr Heath advised that he received complaints about Mr Daws' conduct from Mr Cunningham and Mr Cameron on 5 August 2024. On 14 August 2024, a further complaint was received from Mr Ryan-Spearritt.

• [50] On 14 August 2024, Mr Heath attended a meeting with Mr Daws, Ms Wood and Ms Otto to obtain Mr Daws' response to the complaints of Mr Cameron and Mr Ryan-Spearritt. Mr Daws was suspended with pay at the meeting.

• [51] On 27 August 2024, Mr Daws filed an anti-bullying complaint against Ms Anderson, Ms Black and Ms Wood.

• [52] On 3 September 2024, Mr Heath met with Mr Daws and Ms Otto. Mr Daws was advised that the Respondent had formed the view that he was guilty of serious misconduct. Mr Daws was provided with a further opportunity to respond.

• [53] On 9 October 2024, Mr Heath and Ms Otto met with Mr Daws to discuss Mr Daws complaint of being bullied. Mr Daws was presented with a summary of the investigation findings.

• [54] On 15 October 2024, a further meeting with Mr Daws occurred. Mr Daws was invited to provide any further information for the Respondent to consider. After that meeting Mr Heath determined to dismiss Mr Daws and a written letter of termination was provided to Mr Daws.

• [55] Ms Wood advised that Mr Daws indirectly reported to her with her direct Manager being Ms Anderson. Ms Wood was responsible for the investigation. Ms Wood believed that Mr Daws did not take responsibility for his actions and sought to defer blame to others and did not demonstrate a desire to improve the working relationships. Ms Wood attended disciplinary meetings conducted with Mr Daws on 12 July 2024[4] and 14 August 2024. Notes of the first meeting and a script which was used at the second meeting were submitted.

• [56] Mr Daws submitted two statements and a number of documents. A large portion of the documents were discovered as part of a workers compensation claim and were not received (on the basis that their submission was a breach of the Harman undertaking), detailed in paragraph [7] above other than specific pages.

• [57] In cross examination Mr Daws denied ever receiving a copy of his contract of employment or participating in training on Bullying and Inappropriate Behaviour. Mr Daws' training record[5] indicated that he completed training in the Bullying and Inappropriate Behaviour Policy and Procedure on 29 April 2024.

• [58] Mr Daws denied upsetting Mr Cameron or any other employee in the workshop, and rejected concerns about his conduct contained in a warning letter dated 26 July 2024. Mr Daws accepted that from 26 July 2024 he was on notice about the appropriateness of his conduct towards other employees.

• [59] Mr Daws contended that Ms Anderson and Ms Wood and Ms Black made comments about him not doing his job property and 'moving on' and inferred that they were seeking to remove him from the workplace.

• [60] Ms Daws contended that on 12 July 2024 he was not advised of the allegations against him as contained in Ms Black's notes. Based on the evidence before me (including the excerpts from the workers compensation file) I reject Mr Daws' evidence on that point. Whilst Mr Daws may not have been across every detail, he was aware of the general thrust of the allegations and in a position to respond.

• [61] Despite Mr Daws' evasive responses during cross-examination as to him executing the contract, I find that the contract of employment had been signed and applied to him during his employment and at the points in time when the alleged breaches of his obligations occurred.

• [62] I reject Mr Daws' contention that he had never seen the Bullying and Inappropriate Behaviour Policy. I note that Mr Daws accepts the requirements of that policy were 'common sense' standards of behaviour.

• [63] With respect to the inappropriate conduct Mr Daws denied the allegations, there did not appear to be a halfway house, either Mr Daws did not conduct himself in the manner alleged by the witnesses or he did.

• [64] The determination of this matter largely turns of the facts. I had the opportunity to observe the demeanour of the witnesses whilst giving evidence and have made the following credit findings.

• [65] Mr Daws performance in the witness box was less than impressive. Mr Daws had considerable difficulty in answering the questions asked of him. Either Mr Daws was not comprehending the questions before answering them, or just ignoring them and using the witness stand as his soap box. I suspect the latter. Mr Daws came across as belligerent and I invited him to comment on this perception whilst giving evidence.

• [66] Whilst Mr Maitland was somewhat imprecise in his answers, I put that down to his obvious nervousness whilst giving evidence. I formed the impression that he was a witness of truth and have preferred his evidence where it conflicts with Mr Daws evidence.

• [67] Mr Ryan-Spearitt was an impressive witness with a good recollection of the events. I found his evidence to be credible. I have preferred his evidence where it conflicts with that of Mr Daws.

• [68] Ms Black appeared to be an honest witness and made appropriate concessions. I prefer her evidence over that of Mr Daws.

• [69] Ms Anderson was not an impressive witness. Whilst I do not doubt her integrity, her use of inappropriate language at the workplace and her failure to admonish employees for the use of grossly inappropriate language reflects poorly on her and the Respondent's values.

• [70] In cross-examination Mr Daws contended that he had not seen or executed his contract of employment despite being presented with a digitally signed version, he also contended that he not aware of the Bullying and Inappropriate Behaviour Policy despite the existence of the training record.

• [71] Mr Daws' asserted that he had never criticized anyone for raising an issue with him and denied referring to females as 'bitches' or a bitch which is unlikely in light of the other witness evidence.

• [72] Mr Daws accepted that the conduct alleged would have been unacceptable regardless of any policy was an appropriate concession.

• [73] Mr Daws was responsible for the allocation of work and supervision of employees in the Cummins Workshop. He also interacted with Administration Staff including the Human Resources function. A number of those persons were female.

• [74] Mr Daws had more work experience, more life experience and was physically larger than his direct reports and those with whom he interacted.

• [75] On 5 August 2024, the Respondent received written complaint from two Apprentices about Mr Daws' conduct. These persons were not called to give evidence and the only matter I conclude from these complaints is that the complaints were made.

• [76] On 11 July 2024, the Applicant was advised in writing that allegations had been made against him. The allegations were summarised in the letter.[6] Mr Daws received a warning and was put on notice regarding his conduct.

• [77] After the complaint was raised, Mr Daws raised the topic of who had 'snitched' him out with Mr Maitland. Mr Daws walked up very close to Mr Maitland in the washpad area, pointed his finger at him and asked if he had snitched him out to Ms Wood resulting in Mr Maitland being intimidated.

• [78] I accept that Mr Daws used his power to allocate less enjoyable jobs to those who were not in his favour at the time.

• [79] I accept that Mr Daws referred to Ms Black as a 'bitch'.

• [80] Mr Daws presided over a poor working environment in the workshop with employees being in fear of him, and some leaving the employment of the Respondent.

• [81] The investigation and disciplinary process was protracted and far from efficient.

• [82] On the 18 July 2024, Mr Daws was advised in writing to attend a disciplinary meeting.[7]

• [83] On 14 August 2024, Mr Daws was stood down with pay pending an investigation.

• [84] On 14 August 2024, Mr Ryan-Spearritt provide a written account of Mr Daws conduct to the Respondent.

• [85] On 14 August 2024, a meeting was conducted with Mr Daws. The meeting notes detail the allegation discussed which included referring to Ms Jodie Black as a bitch and speaking in derogatory terms about her. These allegations were denied. The meeting also discussed whether Mr Daws has breached his confidentiality obligations in represent to a prior disciplinary meeting and that he was seeking to identify the person(s) who reported his conduct to the Respondent. Mr Daws advised he had not breached the confidentiality requirements and had not had a go at Mr Maitland.

• [86] I find that Mr Daws was made sufficiently aware of the allegations against him prior to the dismissal and afforded an opportunity to respond.

• [87] On 15 August 2024, Mr Daws emailed Mr Wood in respect of the previous day's meeting. Mr Daws contended that Ms Black, Ms Anderson and Mr Maitland were collaborating to making a case out of nothing so that he loses his job and made a formal complaint against them. Mr Daws contended that since his heart attack he had been calm and approachable in his job and that he had been berated and bullied in front of others.[8]

• [88] On 16 August 2024, Mr Daws saw his doctor as a result of stress. A certificate was issued and Mr Daws declined to participate in a meeting scheduled for 26 August 2024.

• [89] On 27 August 2024, Mr Daws filed a stop bullying application in relation to an allegation that he was bullied by Ms Black, Mr Wood and Ms Anderson. This application was the subject of a Conference before Commissioner Thornton on 4 October 2024 but was not resolved and was withdrawn after Mr Daws' employment was terminated.

• [90] On 3 September 2024, a meeting with Mr Daws was conducted. Mr Daws sought more detail of the time and dates of the alleged comments made against him from Ms Otto. Mr Daws appears to infer that he wasn't around at the time of the alleged conduct. It appears that the focus of this meeting were complaints of bullying raised by Mr Daws against other employees.[9]

• [91] On 5 September 2024, Mr Daws emailed Ms Otto about the 'supposed allegations'. It is difficult to discern Mr Daws position from the email, however I accept that he did not agree with them.[10]

• [92] Mr Daws was dismissed at the initiative of the Respondent on 15 October 2024.

• [93] With respect to the inappropriate treatment of his subordinates by allocating distasteful work, name calling, and referring to females in Administration roles as 'bitches' I reject Mr Daws denials and find that such conduct occurred and that it was in breach of the Respondent's Policies.

• [94] I find that Mr Daws sought to determine who made a complaint against him and acted in an inappropriate manner towards Mr Maitland, when taking into account the differences in age, physique and seniority. I find that Mr Daws conduct represented a significant breach of his supervisory obligations, the Respondent's Policy and common decency to be afforded to other employees at the workplace. Even if I were to accept that the workplace culture was poor and that Mr Daws may have felt he was being targeted, that would not come close to excusing the conduct I have found Mr Daws engaged in.

• [95] In addition to the above, I find the conduct towards Mr Maitland was sufficient enough to constitute serious misconduct as defined by the Fair Work Regulations. Mr Maitland should be commended for the courage to stand up to a workplace bully.

Was the dismissal harsh, unjust or unreasonable?

• [96] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

• [97] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[11]

• [98] I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant's capacity or conduct?

• [99] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[12] and should not be "capricious, fanciful, spiteful or prejudiced."[13] 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.[14]

• [100] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination.[15] The question of whether the alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it.[16]

• [101] As a supervisor he had a responsibility for the welfare of his direct reports, and an obligation to treat other employees with dignity and respect.

• [102] I am satisfied on the evidence that Mr Daws failed to act appropriately towards those he Supervised by:

• The unfair allocation of dirty or less preferred work.
• Using inappropriate language directed towards female members of the Respondent's staff.
• Acting in a manner which was not conducive to the maintenance of a collaborative team environment evidenced by his direct reports feeling that they had to 'walk on egg shells' whilst in his presence.
• Instead of seeking to examine and/or alter his behaviour after a complaint about his conduct was made to HR, Mr Daws sought to identify the source of the complaint.
• In the course of trying to locate the complainant he threatened and bullied Mr Maitland.

• [103] I also find that Mr Daws' reference to female administration staff as 'those bitches' was directed towards particular persons and was extremely derogatory.

• [104] I make no findings in relation to the complaints made by Mr Cunningham and Mr Cameron.

• [105] In making these findings I have considered the Respondent's working environment which appears to condone conversational swearing, however I distinguish conversational swearing from profanity directed at a person(s). I have also considered Mr Anderson's use of profanity and her failure to hold other employees to account - this does not impact on the majority of Mr Daws conduct.

• [106] Mr Daws' conduct, both individually and collectively represents a breach of the Respondent's Policies, and his obligations under his contract of employment. Whilst giving evidence Mr Daws accepted that such conduct (if it occurred) was unacceptable in the workplace.

Was the Applicant notified of the valid reason?

• [107] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[17] and in explicit[18] and plain and clear terms.[19]

• [108] Mr Daws contended in his statement that he was not advised of the allegations against him. A review of the documents filed indicates that Mr Daws was made aware of the allegations at the level sufficient to allow him to respond. I accept that he was not afforded the word for word descriptions of his conduct. This did not appear to prevent his denial of the allegations and the making of complaints about the conduct of those responsible for the investigation.

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

• [109] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[20]

• [110] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[21] Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[22]

• [111] Mr Daws was given an opportunity to respond on a number of occasions including the formal meetings on 12 July 2024[23] and 14 August 2024.

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

• [112] Mr Daws did not request a support person.

Was the Applicant warned about unsatisfactory performance before the dismissal?

• [113] As the dismissal related to Mr Daws conduct and not unsatisfactory performance, this factor is not relevant to the present circumstances.

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

• [114] Whilst the respondent is not a small business, I accept that the Respondent's HR personnel lacked a detailed knowledge of employment law, and this may have impacted on the process| followed in affecting the dismissal.

• [115] I have considered that Mr Daws was facing some medical issues (including stress) during the period of the conduct discussed. The cause of the Applicant's medical issues is the subject of dispute and the subject of a contested workers compensation claim was lodged.

• [116] I also have considered the Applicant lodged an anti-bullying claim against the Respondent prior to his dismissal. I was not persuaded that Ms Black, Ms Anderson and Mr Maitland was trying to push Mr Daws out of his job. As can be seen from my findings of fact, Mr Daws conduct (particularly towards Mr Maitland) resulted in his downfall.

• [117] Whilst I have accepted that the workplace culture at the Cummins Brach (including the conduct of Ms Anderson) was sub-optimal, this does not excuse the conduct that I have found Mr Daws engaged in. Mr Daws was senior in position, service and age and should have known that his conduct (particularly that against Mr Maitland) was grossly inappropriate. I am satisfied that Mr Daws conduct towards Mr Maitland fell within the definition of serious misconduct and accordingly the dismissal was not unfair as a result of the Respondent's non-payment of notice.

• [118] There are no other relevant matters.

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

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

• [120] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[24]

• [121] Having considered each of the matters specified in s.387 of the Act, I am not satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable.

• [122] I am therefore not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act and the application is dismissed.

[1] PR782673.

[9] Letter dated 8 October 2024, DCB 281.

[10] Exhibit A2 Page 127 of the Court book

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

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

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

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

[16] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

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

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

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

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

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

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

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