Alexander Pushik v Woolworths Group Limited [2025] FWC 3290

1 Fair Work Act 2009 s.394—Unfair dismissal Alexander Pushik v Woolworths Group Limited (U2025/8980) DEPUTY PRESIDENT GRAYSON SYDNEY, 17 NOVEMBER 2025 Application for an unfair dismissal remedy – applicant dismissed on basis of breaches of policy – sexual harassment – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed [1] Mr Pushik was employed by Woolworths Group Limited (‘Respondent’) from 23 October 2008 to 8 May 2025. At the time of his dismissal, he was employed as the Fruit and Veg Manager at one of the Respondent’s stores. [2] Mr Pushik was summarily dismissed by the Respondent on account of alleged serious misconduct. The alleged misconduct included that he had sexually harassed a colleague by sending her messages or Facebook posts between 30 March 2025 and 7 April 2025. [3] Mr Pushik contends that his dismissal was harsh, unjust and/or unreasonable. Whilst he does not dispute that he engaged in the conduct that he was dismissed for, he says that this was not misconduct, let alone serious misconduct as he sends similar messages to friends and relatives all over the world on social media. He says that similar language is used by other employees of the Respondent and that, accordingly, he did not consider that his messages were inappropriate at the time of sending them. Following his dismissal the Respondent became aware of further conduct that it submits supports a finding that there was a valid reason for Mr Pushik’s dismissal. Mr Pushik argues that his conduct did not constitute sexual harassment, it was not prohibited by the Respondent’s Respectful Workplace Policy (‘Policy’) or the Code of Conduct (together, ‘Policies’) and that the Respondent had no valid reason to dismiss him. He also submits that there were procedural fairness deficiencies in the lead up to his dismissal including that he was asked to attend a meeting with a Store Manager who was acting as the Respondent’s investigator without knowing the purpose of the meeting. He was not offered a support person until the commencement of the meeting. [4] The Respondent argued that Mr Pushik had engaged in sexual harassment. It relied on the conduct that it relied upon at the time of the dismissal and also further conduct that had come to light following his dismissal to support its argument that Mr Pushik had engaged in sexual harassment, breaches of the Respondent’s Policies and that the Respondent had a valid [2025] FWC 3290 DECISION -- 1 of 34 -- [2025] FWC 3290 2 reason for his dismissal. It submits that there was no failure to afford procedural fairness and that the Commission should conclude that the dismissal was not harsh, unjust or unreasonable. [5] Having considered the evidence filed and submissions made by the parties I have determined that Mr Pushik’s dismissal was not harsh, unjust or unreasonable. Evidence filed [6] Mr Pushik gave evidence on his own behalf and filed an ‘outline of argument: merits’ which contained a mix of evidence and submissions. He did not file a witness statement. Mr Pushik also tendered documents including: a) A bundle of documents which included his dismissal letter, a letter of allegations, a certificate of service, payslips and prior correspondence from the Respondent regarding an underpayment; and b) A response statement/submission filed on 20 August 2025 which included both evidence and submissions. [7] The Respondent filed statements from Ms Ghimire, the recipient of Mr Pushik’s messages, and Mr Issa, General Manager, Group 433 of the Respondent, the person who made the decision to dismiss Mr Pushik. These statements annexed various documents. Submissions [8] Mr Pushik filed submissions on 18 July 2025 and submissions in reply on 20 August 2025. The Respondent filed its submissions on 13 August 2025. The Hearing and Legal Representation [9] There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing. [10] After considering the views of Mr Pushik and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (per s.399 of the Act). [11] The Respondent sought to be represented before the Commission by a lawyer. Mr Pushik did not oppose the grant of permission. [12] Relevantly, s.596(1) of the Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission. [13] Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if: (a) It would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or -- 2 of 34 -- [2025] FWC 3290 3 (b) It would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or (c) It would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter. [14] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the Act. The decision to grant permission is a two- step process. First, it must be determined whether one of the requirements in s.596(2) has been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted. [15] On the question of representation, the Respondent submitted that permission to be represented ought to be granted on the following bases: a) Legal representation will enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. The Respondent relied on The Police Federation of Australia (Victoria Police Branch) T/A the Police Association of Victoria v Victoria Police/Chief Commissioner of Police to say the Commission must merely be satisfied that representation will enable the matter to be dealt with more efficiently.1 They also relied on Artery v Gavin Case Marine Services to say that a matter does not necessarily need to be complex to warrant a grant of permission;2 b) The Respondent, while having employees with relevant industrial experience, does not believe these individuals would be able to effectively represent the Respondent in these proceedings as they are required to provide support in respect of and manage claims made by the Company’s substantial workforce, and will not have capacity to dedicate themselves fully to this matter, and in addition, the sensitive nature of this matter necessitates specialist expertise and experience in running unfair dismissal matters involving allegations of sexual harassment; and c) While the Applicant is not represented, the Respondent’s legal representative is an officer of the Court and will abide by her duty to the Commission to assist in the proper conduct and resolution of the dispute, and this accordingly assists in the efficient conduct of the matter. [16] Having considered the submissions, I formed a view that this matter does have significant factual and legal complexity. I determined that allowing the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. I decided to exercise my discretion to grant permission for the Respondent to be represented. Consideration Initial matters to be considered [17] Under s.396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application: (a) whether the application was made within the period required in subsection 394(2); -- 3 of 34 -- [2025] FWC 3290 4 (b) whether the person was protected from unfair dismissal; (c) whether the dismissal was consistent with the Small Business Fair Dismissal Code (the ‘Code’); and (d) whether the dismissal was a case of genuine redundancy. [18] There is no dispute between the parties, and I am satisfied on the evidence that: a) Mr Pushik’s application for unfair dismissal was made within the period required in s.394(2) of the Act; b) Mr Pushik was a person protected from unfair dismissal; c) Mr Pushik’s dismissal was not a genuine redundancy; and d) The Respondent was not a small business, and the Code did not apply to Mr Pushik’s dismissal. When can the Commission order a remedy for unfair dismissal? [19] Section 390 of the Act provides that the Commission may order a remedy if: (a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and (b) the Applicant has been unfairly dismissed. [20] I have already determined that Mr Pushik was protected from unfair dismissal. However, both limbs of s.390 must be satisfied. I am therefore required to consider whether Mr Pushik has been unfairly dismissed. When has a person been unfairly dismissed? [21] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that: (a) the person has been dismissed; and (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. -- 4 of 34 -- [2025] FWC 3290 5 [22] There was no dispute that Mr Pushik had been dismissed or that the Code did not apply. Having already determined that his dismissal was not a case of genuine redundancy, I will turn to consider whether his dismissal was harsh, unjust or unreasonable. Was the dismissal harsh, unjust or unreasonable? Background [23] The factual background to the matter can be summarised as follows. [24] Mr Pushik commenced employment with the Respondent on or around 23 October 2008. He worked in various positions during his employment and was employed as the Fruit and Veg Manager at one of the Respondent’s stores at the time of his dismissal. [25] Mr Pushik completed training on the Code of Conduct on 1 February 2024. Code of Conduct training includes topics like respectful workplace, bullying and sexual harassment. The training is provided by the Respondent when an employee commences employment and then refresher courses are provided every one to two years. Prior to this, Mr Pushik had most recently completed training on the Code of Conduct on 14 September 2022. [26] Mr Pushik’s role made him the third most senior employee at his store.3 [27] At the time of his dismissal Mr Pushik reported to Mr Kenny, Store Manager. [28] Ms Ghimire was a colleague of Mr Pushik. Ms Ghimire was employed as a part-time Team Member in the Fresh Team, was on a student visa from Nepal and was 29 years old (at the relevant time). She was not directly supervised by Mr Pushik as part of her day-to-day work. [29] Prior to his dismissal Mr Pushik sent the following messages to Ms Ghimire: a. on 30 March 2025, the Applicant sent Ms Ghimire three emojis, one after the other, which included a red lipstick kiss emoji, a thumbs up emoji and an emoji of two people kissing; b. on 5 April 2025, the Applicant wrote “love”; c. on 6 April 2025, the Applicant again wrote “love”; d. on 6 April 2025, the Applicant wrote “I love you”; and e. on 7 April 2025, the Applicant wrote “Do you love me” (together, the First Messages). [30] Ms Ghimire did not respond to these messages. Ms Ghimire made a complaint about the First Messages to the Store Manager, Mr Kenny, on or around 14 April 2025, saying that she had been feeling uncomfortable with Mr Pushik’s behaviour.4 -- 5 of 34 -- [2025] FWC 3290 6 [31] Mr Sahawneh, Store Manager of a nearby store, was appointed by the Respondent to undertake an investigation. [32] On 22 April 2025 Mr Pushik attended an interview with Mr Sahawneh and Ms Tran, Assistant Store Manager (‘22 April Meeting’). Prior to attending the interview Mr Pushik was not provided with any information regarding the allegations against him and he was not told of the purpose of the meeting.5 At the commencement of the meeting he was offered a support person. He declined that offer. [33] The Respondent’s notes of this meeting record that, during the interview, Mr Pushik confirmed that he had sent the First Messages and also said that: a. he sends love and kiss messages to his friends, and this is normal; b. there was no “sexual content” involved because, as he was 63, Ms Ghimire was like a granddaughter to him; c. he was just being “friendly” and he had a “friendship” with Ms Ghimire; d. he eventually stopped the messages; and e. the messages were not inappropriate but said words to the effect of: “if I had posted it publicly, people may have misinterpreted my comment” and that “people don’t know that we are just friends, and may think it was meant as something more. It was just friendly”. [34] No statement was tendered by any of the attendees at this meeting. However, Mr Pushik did not make any submission that the information recorded in the preceding paragraph was an inaccurate record of the 22 April Meeting. His evidence was, however, that the term ‘sexual harassment’ was not mentioned at this meeting, I accept his evidence that he was not shown any written complaint from Ms Ghimire, only screenshots of the messages between himself and Ms Ghimire and that he was asked to confirm if he was the one who sent them.6 [35] On 1 May 2025, the Respondent wrote to Mr Pushik asking him to show cause as to why his employment should not be terminated (‘1 May letter’). This correspondence suspended Mr Pushik and invited him to provide a response by 6 May 2025. The records of the Respondent include notes that record that Mr Kenny tried to call Mr Pushik repeatedly following the 1 May letter. Mr Pushik did not respond to the 1 May letter or Mr Kenny’s calls. Mr Pushik did not give evidence or make any submission that Mr Kenny had not tried to call him during this period. Mr Pushik’s evidence was that he did not respond to the 1 May letter as he “had nothing else to say”.7 [36] On 8 May 2025, the Respondent summarily dismissed Mr Pushik on the basis of the First Messages. -- 6 of 34 -- [2025] FWC 3290 7 Consideration Was the dismissal harsh, unjust or unreasonable? [37] Section 387 of the Act provides that the Commission must take into account, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable: (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. [38] I am required to consider each of these criteria, to the extent that they are relevant to the factual circumstances before me.8 [39] I set out my consideration of each below. Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct (s 387(a))? Valid reason for dismissal [40] The Respondent relied upon the First Messages, the context of the First Messages (including the period over which they were sent and the age gap between Mr Pushik and Ms Ghimire) and Mr Pushik’s attitude towards his admitted conduct to dismiss him.9 [41] However, following the dismissal it says that it became aware of further evidence which demonstrated a pattern of unwanted conduct which Mr Pushik engaged in with the intent of entering into a romantic relationship with Ms Ghimire. It relies on these matters in support of its argument that it had a valid reason to dismiss Mr Pushik in relation to his capacity or conduct. -- 7 of 34 -- [2025] FWC 3290 8 [42] These additional matters are summarised in the Respondent’s submissions as follows: a. an incident at the store’s Christmas Party in late November 2024, where Ms Ghimire provided evidence that Mr Pushik stared at her throughout the event, eventually “rushing up” to ‘kiss her on the cheek’ while saying “you look so beautiful today”. Ms Ghimire states that she tried to push Mr Pushik away and that it made her very uncomfortable (Christmas Party Incident);10 b. after the Christmas Party Incident, that Mr Pushik made statements to Ms Ghimire at the store, and when no one else could hear, to the effect of how Ms Ghimire was “so pretty”, “beautiful” and that she is “always looking so pretty in photos” (Statements on Appearance);11 c. in addition to the First Messages, Mr Pushik sent additional messages to Ms Ghimire, which include: (i) messages, sent via Facebook Messenger, including some in reply to Ms Ghimire’s Facebook ‘stories’:12 1. on 1 December 2024 an emoji of a person with hearts in their eyes; 2. on 18 March 2025 which reads “beautiful”; 3. on 26 March 2025 which reads “beautiful girl”; 4. on 30 March 2025 an emoji of a person with hearts in their eyes; and 5. on 30 March 2025 which reads “Can take you out one day”, which was followed by an emoji of a person with hearts in their eyes; and d. Ms Ghimire has provided screenshots of:13 (i) a comment Mr Pushik posted to Ms Ghimire’s Facebook page on 18 March 2025 reading “Always love you”; (ii) two separate comments Mr Pushik posted to an old profile picture of Ms Ghimire’s from 2 December 2024, one comment including a picture of a love heart and another comment of a “gif” of a love heart with the words “Be my valentine”; (iii) a comment Mr Pushik posted to an old picture that Ms Ghimire posted on 12 February 2024 which, again, includes a “gif” of a love heart with the words “Be my valentine”; (iv) a comment Mr Pushik posted on a picture Ms Ghimire posted on 26 December 2024 which included a picture of a ‘rose’; (v) two separate comments Mr Pushik posted on another picture Ms Ghimire posted on 26 December 2024, both including two different pictures of a ‘rose’; (Additional Facebook Messages). e. On one occasion, Ms Ghimire alleges that when she asked Mr Pushik for assistance at work, the Applicant replied “I would do anything for you”;14 and on another occasion, on or around April 2025, Ms Ghimire alleges that while she was working back late the Applicant asked her if she wanted to go for a drink. When Ms Ghimire responded that she could not go for a drink as she -- 8 of 34 -- [2025] FWC 3290 9 wasn’t finishing until 9:30pm, Mr Pushik said that they could go for a drink another time to which Ms Ghimire responded, “No I’m not going with you”. Mr Pushik then showed Ms Ghimire videos of karaoke suggesting that they could do karaoke together and told Ms Ghimire that in Russia you can go into a private room. Ms Ghimire then responded that she would not go with him, to which Mr Pushik said that he had seen videos of her doing karaoke. Ms Ghimire says that this made her uncomfortable as it demonstrated that Mr Pushik was viewing her Facebook page. Ms Ghimire then again rejected Mr Pushik’s invitation for a date in the same conversation. Ms Ghimire’s evidence is that even after this conversation Mr Pushik continued to send her the Facebook Messages referred to above.15 (Repeated Requests for a Date) Evidence and submissions of the Applicant [43] Mr Pushik did not deny that he had sent the First Messages and the Additional Facebook Messages described at [42](c) and (d) above. [44] In relation to the Christmas Party Incident Mr Pushik noted that “the ladies try to come wearing their best”, with lovely hairstyles and makeup. He recalled that he exchanged “not full blast hugs and kisses” with at least seven female colleagues but “imitation hugs and kisses” at the beginning and end of the night at the Christmas party.16 These kisses were imitation so as not to disturb the make-up of any female colleague. His evidence was that this was normal amongst colleagues in Australia. [45] In relation to Ms Ghimire specifically, Mr Pushik recalled passing her as they were sitting at different tables and saying words to the effect of 'You look lovely tonight' and imitating a kiss on her cheek.17 He produced evidence of a group photo which he recalled being taken at the end of the night where Ms Ghimire is sitting next to him. Effectively, his recollection of the Christmas party was that there was a nice mood amongst colleagues and that nothing out of the ordinary occurred. [46] In relation to Ms Ghimire’s evidence that Mr Pushik had said that “he would do anything for her” Mr Pushik’s evidence was that whilst he had made this comment, this was not something exceptional as he made comments like this to “very many of his female colleagues” in response to being asked for assistance, which happened quite frequently. He said that this was just part of a normal working relationship. [47] In relation to the Repeated Requests for a Date Mr Pushik’s evidence was that he could not recall whether he approached Ms Ghimire in the store and asked her to go out or whether he didn’t,18 but that it was possible that he had asked her. He “doubted” asking her out for a drink. He did recall talking to Ms Ghimire at work about karaoke as she had posted a video of herself singing karaoke and telling her that he liked her karaoke videos. He also recalled showing Ms Ghimire videos of karaoke booths for two people on the banks of the Volga River in Moscow. [48] In addition Mr Pushik gave evidence that emojis including love hearts, thumbs up and hearts with eyes were regularly used on social media and also used within group chats between -- 9 of 34 -- [2025] FWC 3290 10 staff of the Respondent.19 This was regular practice in Woolworths group chats.20 Mr Pushik gave evidence that he publicly used emojis regularly and made comments on the Facebook pages of his approximately 150 Facebook friends. His friends also regularly put emoji reactions on his public posts. Mr Pushik described his Facebook activity as ‘a mutual exchange” that “leads to more understanding between people.” [49] In relation to the comments that he had made regarding Ms Ghimire’s appearance such as “beautiful girl” or “I love you” his submission was that these comments did not have any sexual subtext but were either responsive to Ms Ghimire’s social media content posting her new bags, or her “looking very nice.”21 In relation to his comments/messages such as love heart emojis or “I love you” he submitted that this was part of the workplace banter where someone helps a colleague out and should really be understood as akin to an expression of thanks.22 [50] Mr Pushik was not Ms Ghimire’s line manager. Mr Pushik’s evidence was that he and Ms Ghimire did not talk too much on the shop floor as they were both busy getting their own work done. He recalled that they did not go out for lunch or dinner as work colleagues and that Ms Ghimire was not very responsive to his interactions with her, as likely as she was “getting out with probably different sort of people.”23 Mr Pushik volunteered that he “wouldn’t mind taking Ms Ghimire out, for example, to a show,”24 which is something that he likes to do regularly. [51] Under cross-examination Mr Pushik conceded that during the 22 April Meeting, in relation to the First Messages, he had said words to the effect of 'If I posted it publicly people may have misinterpreted my comment.' His evidence was that he would have liked to take Ms Ghimire out for dinner or a show but that she was not responsive to “have something deeper.”25 He properly acknowledged that one of his messages to Ms Ghimire which was as follows 'Can take you out one day', followed by an emoji of a face with love heart eyes,26 was asking Ms Ghimire out on a date. However, he submitted that this was not sexual and not sexual harassment.27 [52] His evidence was that his Facebook comments to ‘be my valentine’ with a red rose were a nice gesture but that Ms Ghimire had not replied to it. His evidence was to the effect that he would not post such a message to a male colleague as he was not romantically interested in men. He would only make such a post for ‘ladies’ that he had a romantic interest in.28 His evidence was that Ms Ghimire was not alone, as he would post flower emojis and nice comments where other female friends had posted “nice” pictures on Facebook.29 [53] Mr Pushik agreed that he had received Code of Conduct training in February 2024, that he did the training every two years and that it reflected the training module that was annexed to Mr Issa’s statement.30 When he was taken to the statement in the training module that “complimenting someone can be sexual harassment even if it’s not your intention to offend” and asked whether he understood this concept, Mr Pushik’s evidence was to the effect that if a person doesn’t say they are offended by a compliment, how could the person giving it know their conduct is unacceptable? He said that if his conduct was unwelcome, then Ms Ghimire could have blocked him. However, his evidence and submissions were to the effect that his conduct was not conduct of a sexual nature and was not sexual harassment. He noted that he has not sent sexually graphic photographs, by way of illustrating the distinction between his -- 10 of 34 -- [2025] FWC 3290 11 conduct and the conduct caught by the Code of Conduct and the training on the Code of Conduct. [54] Mr Pushik effectively submits that the conduct that he was dismissed for and the additional conduct that the Respondent now relies upon in support of its argument that there was a valid reason for his dismissal was not misconduct, let alone serious misconduct. Mr Pushik submits that he sends similar messages to friends and relatives all over the world on social media. He says that similar language is used on the shop floor of the Respondent and that, accordingly, he did not consider that his messages were inappropriate at the time of sending them. He argues that the messages did not constitute sexual harassment or harassment as they were not sexually explicit, were not prohibited by the Policies, and that the Respondent had no valid reason to dismiss him. [55] Mr Pushik’s application sets out his argument as to why there was no valid reason for his dismissal. This as follows: “I insist that in no way and in any of my actions or messages I have violated any of subsections of Woolworths policy on Sexual Harassment. I didn't have any feedback from Pra [Ms Ghimire] on any of the emojis or messages. The matter came out of the blue and was in my opinion artificially created. I was not even told the subject when invited to the interview in Wentworthville store. To me bias is obvious. If all of my love messages and emojis were taken into account I could be accused of sexual harassment not only of my friends and family members, but of their dogs, cats, ferrets and other pets.” [56] Mr Pushik also apologises to Ms Ghimire if he made her uncomfortable or upset and notes that if he had known that she was upset that he would have engaged in corrective action immediately. [57] He submits that giving colleagues friendly kisses and hugs is common at parties in Australia and family celebrations. I infer from his submission that he submits that his conduct at the Christmas party did not constitute a valid reason for his dismissal. Mr Pushik also made submissions about the Taliban not running Australia - the relevance of which is not immediately clear. These submissions were not elaborated on at hearing. [58] Mr Pushik submits that as he was not Ms Ghimire’s line manager he had no authority or influence over her work. [59] Finally, he submits that he felt ‘betrayed, backstabbed and disgusted’ by the failure to address his behaviour with him directly, and by the Respondent’s failure to tell him of the allegations in a timely way.31 Evidence and submissions of the Respondent Evidence of Ms Ghimire [60] The Respondent led evidence from Ms Ghimire that she worked in close proximity to Mr Pushik, in the Deli section. -- 11 of 34 -- [2025] FWC 3290 12 [61] Ms Ghimire’s evidence was that Mr Pushik behaved in a way which made her uncomfortable and upset at the store’s Christmas party in late November 2024. [62] On that occasion her recollection was as follows: “I noticed Alexander staring at me from a distance at different times throughout the party. This made me feel a bit uncomfortable. Later at the party I was walking through the venue myself, Alexander rushed up to me and told me “you look so beautiful today”. He then grabbed me and kissed me on the cheek. I awkwardly tried to push him off me. I’m unsure whether anyone noticed what occurred. I felt humiliated. Prior to the Christmas party in November 2024, Alexander did not say much to me at the store. We had no interactions outside work. Our interactions at work were limited to a polite hello or smile when we walked past each other. Alexander is old enough to be my grandfather and as a manager superior to me.” [63] Ms Ghimire’s evidence was that while she did not recall the exact date Mr Pushik added her as a friend on Facebook, he began sending her messages via Facebook Messenger on 1 December 2024. These messages included things like “Beautiful girl”, “Can I take you out one day”, “Love”, “Love you” and images of hearts, lips and two people kissing. These messages were tendered into evidence. Ms Ghimire did not respond to them. [64] Mr Pushik also began responding to the stories that Ms Ghimire posted on Facebook saying things like “Beautiful” and reacting with images of heart eyes. Ms Ghimire responded to the first of these reactions with a ‘thumbs up’ image and didn’t respond after this. Mr Pushik also started to comment on older posts and images of Ms Ghimire suggesting that he was scrolling through old photos of her. Some of the comments he made were “be my Valentine” and images of hearts. Ms Ghimire’s evidence was that this made her feel humiliated. Screenshots of these posts and responses were tendered into evidence. He also posted a message on Ms Ghimire’s Facebook profile saying, 'Always love you'. [65] In relation to Mr Pushik’s conduct in the store Ms Ghimire’s evidence was that this included: a. That Mr Pushik would frequently make comments to her that she was “so pretty”, “beautiful” and “always looking so pretty in photos.” These were not made when there were other people around. b. When Ms Ghimire asked Mr Pushik for assistance in performing her duties he responded with “I would do anything for you.” This was the only time he said anything in front of other colleagues. This was in front of two colleagues who then commenced to ask questions of her, expressing curiosity about Mr Pushik’s behaviour and why he appeared to be “obsessed” with her, including frequently commenting on her Facebook photos. This made Ms Ghimire feel very humiliated. c. On or around April 2025, while Ms Ghimire was closing the deli during a shift, Mr Pushik asked what time she would be finishing and whether she -- 12 of 34 -- [2025] FWC 3290 13 wanted to go out for a drink with him. Ms Ghimire’s evidence was that she was finishing at 8:30pm but pretended, for her own safety, that she was finishing later. Ms Ghimire said words to the effect of ‘No, I’m not going with you’. Mr Pushik then showed Ms Ghimire videos of karaoke. She felt that this was to try and convince her to go with him. Her evidence was that Mr Pushik had said that, in Russia, you can go in one room for karaoke. When Ms Ghimire told Mr Pushik that she did not want to go, he said that he had seen her going to karaoke. Ms Ghimire relayed feeling intimidated at this. Ms Ghimire recalled that she responded to this again by saying that she only went out with her close friends and did not want to go with him. [66] Ms Ghimire’s evidence was that even after this interaction, Mr Pushik continued to send her messages on Facebook Messenger saying “Love you” and “Do you love me.” She did not respond to any of these messages. These messages were tendered into evidence. [67] Ms Ghimire’s evidence also set out the process that she followed in making a complaint to the Respondent about Mr Pushik’s behaviour including raising it with the Assistant Fresh Manager, after he observed her being visibly upset in the workplace on or around 10 April 2025. The Assistant Fresh Manager then raised it with Mr Kenny, who then spoke with Ms Ghimire and lodged a complaint on her behalf. [68] Ms Ghimire’s evidence about the impact that this conduct had had on her included the following:32 “It was an incredibly difficult decision for me to come forward and report Alexander’s conduct. I was concerned about the potential impact on his employment, but I also felt I could no longer tolerate his behaviour towards me. Additionally, as an international student, I was deeply worried about becoming involved in any legal processes, given the challenges of balancing my studies, maintaining my academic performance, and managing the emotional stress of the situation. It became increasingly difficult for me to attend work and see him during my shifts. The situation caused me significant anxiety, and I often felt reluctant to come in to work. Knowing that he would sometimes message me on Facebook at 2.00 am or 4.00 am made me feel extremely uncomfortable. I didn’t feel like I was able to ask him to stop or to block him on Facebook because he was significantly older than me and held a managerial position, which made the situation feel intimidating. I was worried about the impact on my job. I never saw Alexander acting like this with other colleagues. It felt directed at me, which made me feel uncomfortable. My friends encouraged me to speak up and report the incident or to resign from my job, as they had noticed it was affecting my sleep and having a negative impact on my studies. I didn’t want to resign because I genuinely enjoyed my job and took pride in serving customers. Alexander’s conduct made me feel sick. -- 13 of 34 -- [2025] FWC 3290 14 I felt nervous about reporting the incident, fearing that my concerns might not be taken seriously and that no action would be taken. As a person of colour, I was also worried that I might not be believed. This anxiety has impacted my health, my sleep has been bad and I have lost weight.” [69] Under cross-examination Ms Ghimire accepted that she sat next to Mr Pushik for the group photo but recalled that this occurred in the middle of the Christmas Party. Ms Ghimire also accepted that she and Mr Pushik did not have “too much” interaction on the shop floor and that this would be about professional matters and not personal conversations. She also gave evidence that her and Mr Pushik’s colleagues and her family had seen Mr Pushik’s public Facebook comments and praise. She talked of feeling “terrorised” by Mr Pushik’s conduct and said that it was still very hard for her. When asked why she did not simply delete or block Mr Pushik, she said that she just ignored his conduct until she felt that he had “crossed the limit” and she had to come forward and complain. [70] When asked whether her other Facebook friends posted emojis or make comments on her posts Ms Ghimire stated that they did not send ones like the ones that Mr Pushik sent and that her friends know that there are limits on what messages to send on social media.33 In response to Mr Pushik’s questioning about why Ms Ghimire did not tell him that she was not happy with his conduct towards her, she responded to the effect that it was very hard for her, especially given the age difference between them and that she was a young girl working in the store. She said that if he was thinking of her in a grandparental way then his messages should have reflected that and that his age did not excuse or explain his conduct towards her. Evidence of Mr Issa [71] Mr Issa’s evidence recounted the complaint, investigation and show cause process followed by the Respondent. [72] Mr Issa’s statement annexed the Policies. He concluded that the Code of Conduct and the Policy record that ‘sexual harassment’ can include any unwelcome behaviour of a sexual nature that a reasonable person would anticipate would humiliate, offend or intimidate another person in all the circumstances. Both policies also say that it can occur in a single incident or repeatedly over time and that intention is irrelevant. Both policies also make clear that sexual harassment can arise from messaging someone, including a colleague, over social media outside work. [73] He considered Mr Pushik’s contentions that he sends love and kiss messages to his friends and that this is normal, that there was no “sexual content” involved because, as Mr Pushik was 63, Ms Ghimire was young enough to be his granddaughter and that he was just being “friendly.” His evidence was that whilst a message saying “I love you” in some circumstances might be acceptable, in all the circumstance of this matter, he considered it to be inappropriate. In reaching this conclusion, Mr Issa had particular regard to the significant age difference between Mr Pushik and Ms Ghimire, Mr Pushik’s managerial role in the store, that he did not believe that Mr Pushik was friends with Ms Ghimire and the timing of the messages. He considered the emojis of two people kissing and the ‘red lipstick kiss’ to be clearly sexual. -- 14 of 34 -- [2025] FWC 3290 15 [74] It was Mr Issa who ultimately made the decision to dismiss Mr Pushik. In reaching his decision, he took into account the First Messages and the notes of the 22 April Meeting, and determined that Mr Pushik’s behaviour in sending the First Messages was in breach of the Policies. Compliance with policies is a term of Mr Pushik’s employment contract. [75] Further, in reaching his decision to dismiss Mr Pushik, Mr Issa’s evidence was that he considered the following:34 a. “Woolworths takes sexual harassment very seriously because of the harm it causes our people, and I weighed this seriousness against Mr Pushik’s age (63) and the fact that he had not had any history of similar conduct. b. One of the most significant factors in his decision-making was Mr Pushik’s apparent lack of remorse about his conduct. He denied that his conduct was inappropriate and instead offered justifications, suggesting that his behaviour was typical and consistent with how he interacted with others. His insistence that this behaviour was typical concerned me because of the risk of him doing this again with another staff member. c. Despite Mr Pushik saying that he didn’t think he did anything wrong in sending the messages, I had regard to his response when he was asked why he kept the messages private which was that others might ‘misinterpret’ them. This demonstrated to me that he had some understanding that it was inappropriate. d. This lack of regard for the seriousness of the matter was further demonstrated by Mr Pushik’s failure to provide a written response to the Show Cause Letter. e. The seriousness of the allegations and this lack of remorse led me to believe that Mr Pushik was not capable of improvement. f. That Mr Pushik had completed Code of Conduct training as recently as 1 February 2024 but nonetheless chose to engage in sending the First Messages. g. The impact of Mr Pushik’s behaviour on Ms Ghimire, who expressed significant concern, distress and feeling unsafe in the workplace as a result of Mr Pushik’s conduct.” [76] Under cross examination Mr Issa stated that he was not aware whether emojis were used on the Respondent’s internal chats. His evidence was that Mr Pushik held a senior role in the store as a departmental manager and had a position of authority over Ms Ghimire, in part, as he can still tell team members what to do in other departments. Submissions of the Respondent regarding whether there was a valid reason for the Applicant’s dismissal. [77] Section 387(a) requires the Commission to consider whether there was a valid reason for the dismissal based on a person’s capacity or conduct (including its effect on the safety and welfare of other employees).35 A valid reason is one that is sound, defensible or well founded.36 -- 15 of 34 -- [2025] FWC 3290 16 In assessing whether there was a valid reason, the Commission does not ‘stand in the shoes’ of the employer, but will need to be satisfied that the termination of the employee was for a valid reason.37 This is to be determined on the basis of the evidence in the proceeding.38 [78] The Respondent submits that whilst the First Messages were the only conduct relied upon to dismiss Mr Pushik, that the Commission must take into account the other evidence filed by the Respondent in these proceedings when making its own assessment as to whether there was a valid reason for the termination.39 It relies upon the evidence outlined above at [42] to support its argument that there was a valid reason to dismiss Mr Pushik. It argues that this evidence demonstrates that Mr Pushik “engaged in a pattern of unwanted and uninvited conduct with the intent of pursuing a romantic relationship with Ms Ghimire, a subordinate colleague who was 34 years his junior.” [79] The Respondent submits that Mr Pushik breached the Respondent’s Policies. He was contractually obliged to comply with the Policies of the Respondent. [80] It submits that Mr Pushik’s summary dismissal was justified on the basis of his breach of the terms of his employment and the seriousness of his conduct, noting that in accordance with Regulation 1.07 of the Fair Work Regulations 2009 (Cth), serious misconduct includes “sexual harassment in the course of the employee’s employment.” Further, it is well established that sexual harassment is conduct of a kind that will ordinarily justify dismissal.40 [81] The Respondent submits that the role of the Commission is to determine whether sexual harassing conduct did occur, applying the Briginshaw standard.41 [82] The Respondent summarises the three elements of unlawful sexual harassment under the Sex Discrimination Act 1984 (Cth) as set out by the Full Court of the Federal Court of Australia in Hughes (t/as Beesley and Hughes Lawyers) v Hill:42 a. that there has been any sexual advance, request for sexual favours or other conduct of a sexual nature, which is a question of fact for the Commission to decide for itself (First Element); b. that the conduct was unwelcome to the person allegedly harassed, which is a subjective fact, which turns only on the attitude of the person to the conduct at the time (their actual state of mind) and the intention of the Applicant is not relevant (Second Element); and c. that a reasonable person would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated by the conduct. Here the reasonable person is assumed to have some knowledge of the person harassed and the motives of the Applicant is irrelevant (Third Element). [83] The Respondent says that there has been conduct of a sexual nature and that the evidence supports that Mr Pushik had a clear romantic interest in Ms Ghimire. In the context of the entirety of Mr Pushik's conduct the multiple references to “love” and “always love you” can be considered references to ‘romantic love’, as opposed to ‘love’ in the context of affection towards a colleague or a friend, noting that Ms Ghimire denies that a friendship existed. -- 16 of 34 -- [2025] FWC 3290 17 [84] The evidence of Ms Ghimire establishes that the conduct was unwelcome, and the Commission should find that a reasonable person would have anticipated the possibility that Ms Ghimire would be offended, humiliated or intimidated by the conduct. The reasonable person is assumed to have some knowledge of the personal qualities of the person harassed and the circumstances of this matter would lead a reasonable person to anticipate the possibility that Ms Ghimire would be offended, humiliated or intimidated by the conduct. [85] The Respondent contends that for these reasons the Commission should find that there was a valid reason for Mr Pushik’s dismissal. Conclusions on whether there was a valid reason for the Applicant’s dismissal. [86] In order to be a valid reason, the reason for the dismissal should be ‘sound, defensible or well founded’ and should not be ‘capricious, fanciful, spiteful or prejudiced’.43 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.44 [87] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.45 The employer bears the evidentiary onus of proving that the conduct on which it relies took place.46 The reason for a dismissal may not be valid because the alleged conduct did not occur or because, if it did occur, it did not justify a dismissal.47 [88] The Respondent bears the evidentiary onus of establishing a valid reason for dismissal as it is required to adduce the evidence necessary to establish that there was a valid reason for Mr Pushik’s dismissal.48 [89] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and that it justified termination.49 [90] The reasons relied upon for the dismissal of Mr Pushik have expanded since his dismissal. As per the comments of the Full Bench in Newton v Toll Transport Pty Ltd:50 “… In determining whether there was a valid reason for the dismissal the Commission is not confined to the reason advanced by the employer (either at the time of dismissal or during the course of the subsequent hearing). A valid reason for dismissal can be any valid reason underpinned by the evidence provided to the Commission.”51 [91] As per the Full Bench (majority) reasoning in APS Group (Placements) Pty Ltd v Stephen O’Loughlin:52 “Section 387(a) of the FW Act requires FWA to consider “whether there was a valid reason for the dismissal”. This language directs attention to whatever reason or reasons for dismissal emerge from the evidence and are relied upon by the employer. The tribunal is not confined to a consideration only of the reason or reasons given by the employer at the time of the dismissal. An employer is entitled at the hearing of an application for an unfair dismissal remedy to rely upon whatever reason(s) the employer -- 17 of 34 -- [2025] FWC 3290 18 wishes to rely upon at that time, albeit that in relation to any reason not relied upon at the time of dismissal the employer will have to contend with the consequences of not giving the employee an opportunity to respond to such reason (see s.387(b) and (c) of the FW Act).”53 Did the conduct occur? [92] Per the Full Bench in King v Freshmore (Vic) Pty Ltd:54 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”55 [93] The Respondent’s position at hearing (which was different to its position at the time of dismissal) was that it relied on the following conduct to constitute a valid reason for Mr Pushik’s dismissal: a. The First Messages; b. the Additional Facebook Messages; c. the Christmas Party Incident; d. Statements on Appearance; and e. the Repeated Requests for a Date. [94] Mr Pushik does not dispute that he sent the First Messages and the Additional Facebook Messages. These messages were tendered into evidence. I find, on the basis of the evidence in these proceedings and on the balance of probabilities, that Mr Pushik sent these messages. [95] In relation to the Christmas Party Incident, Ms Ghimire says that Mr Pushik kissed her on the cheek and said words to the effect of “you look so beautiful today”. Ms Ghimire states that she tried to push Mr Pushik away and that it made her very uncomfortable. Mr Pushik’s recollection is that he only imitated kissing Ms Ghimire on the cheek and said words to the effect of 'You look lovely tonight'. There is little between the witnesses on this interaction - both agree that Mr Pushik made a comment in near identical terms. The difference is really whether Mr Pushik made physical contact with Ms Ghimire’s cheek. Ultimately, I prefer Ms Ghimire’s evidence in relation to this incident and find, on the balance of probabilities, that it occurred as per her evidence. She was unshakeable in cross-examination and had a clear recollection of the event. [96] In relation to the alleged conduct of Mr Pushik making statements to Ms Ghimire at the store in relation to her appearance to the effect of how Ms Ghimire was “so pretty”, “beautiful” and that she is “always looking so pretty in photos”, I also find that, on the balance of probabilities, this occurred as described by Ms Ghimire. Mr Pushik did not put on any evidence contesting that he had made these statements and these statements are consistent with the statements that he made to Ms Ghimire in the Additional Facebook Messages. -- 18 of 34 -- [2025] FWC 3290 19 [97] In relation to the last area of conduct relied upon by the Respondent as providing a valid reason for Mr Pushik’s dismissal, being the Repeated Requests for a Date, I also find that, on the balance of probabilities, this occurred as described by Ms Ghimire. On 30 March 2025, Mr Pushik sent Ms Ghimire a message saying, “Can take you out one day”. Mr Pushik conceded that this message was asking Ms Ghimire out on a date and he gave honest evidence that he would have liked to take her ‘for dinner and a show’. [98] I accept Ms Ghimire’s evidence that Mr Pushik said to her in the workplace “I would do anything for you.” Mr Pushik did not contest that he said words to this effect. [99] I accept Ms Ghimire’s evidence that on or around April 2025, Mr Pushik asked what time she would be finishing and whether she wanted to go out for a drink with him and that she responded with words to the effect of ‘No, I’m not going with you’. Mr Pushik recalled this occasion and that he and Ms Ghimire had discussed karaoke. He recalled that he had told her about the private booths that you could go to in Russia but he “doubted” asking her out for a drink on that occasion. However, he properly conceded that he could not definitively recall whether he asked Ms Ghimire to go out or whether he didn’t. Given Ms Ghimire’s clear recollection of this conversation I find, on the balance of probabilities, that it occurred in the terms that she recollected in her evidence. Did the conduct justify dismissal? [100] The Commission’s task is to determine, on an objective basis and based on the evidence before it, whether there was a valid reason to dismiss an employee. [101] One relevant consideration in determining whether the conduct justified the dismissal will be whether the conduct breached the Respondent’s Policies, noting that Mr Pushik had agreed, in signing his contract of employment, to comply with all relevant policies. [102] Mr Pushik had received training on the Code of Conduct only 10 months before the Christmas Party Incident. That Code includes the following:56 “3. Sexual harassment Sexual harassment of team members, customers, suppliers or others is not acceptable. Sexual harassment is any uninvited, unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct, or unreciprocated behaviour of a sexual nature that a reasonable person would anticipate may humiliate, offend, embarrass or intimidate another person. The includes (but is not limited to) the following conduct, which may occur during or outside of work hours: • Requesting, sending or showing sexual or offensive pictures or messages (including by phone or social media) • Unwelcome comments or questions about a person’s appearance, sexual activities or private life (whether in person or via social media or technology) -- 19 of 34 -- [2025] FWC 3290 20 • Unwelcome physical contact, such as shoulder massages or invading someone’s personal space • Persistently asking someone on a date or to socialise outside of work, after previous refusals • Offensive or demeaning comments or jokes of a sexual nature (even if the intention is not to offend or humiliate) • Staring or leering at another person.” [103] The Code of Conduct also includes the following scenario:57 “Adam knows Samara through work, and they have recently become connected on Facebook. Adam has approached Samara at work and has sent Samara private messages via Facebook on a number of occasions asking Samara out. Despite Samara politely declining on more than one occasion, Adam has continued to send Samara private messages outside of work hours asking her out on a date. Is this okay? No – although Adam is messaging Samara outside of work hours, they are connected through work, and this is sexual harassment as Adam is persistently asking Samara on a date despite her declining.” [104] The Respondent’s Policy is similar to the Code of Conduct and also includes the following:58 • “Just because there is no objection or complaint to the behaviour or action at the time it occurs does not mean the behaviour is okay … • If a team member is found to have engaged in sexual harassment in or in connection with the workplace they will be subject to disciplinary action. Disciplinary action may include counselling, warnings or termination of employment/ engagement.” [105] The Code of Conduct essentially mirrors the three elements of sexual harassment as set out above at [82] and provides examples of what constitutes sexual harassment. Accordingly, I consider that case law that considers the Sex Discrimination Act 1984 (Cth) and other state laws protecting people from discrimination and sexual harassment are relevant to my consideration. [106] In relation to those three elements outlined at [82] I make the following findings. First Element [107] In relation to the First Element, the Respondent submits that there has clearly been conduct of a sexual nature, as evidenced by the pattern of behaviour engaged in by Mr Pushik with the intent of advancing a romantic relationship with Ms Ghimire.36 -- 20 of 34 -- [2025] FWC 3290 21 [108] It argues that while Mr Pushik claims that he was just being ‘friendly’ towards Ms Ghimire, the evidence supports a clearly ‘romantic’ intent, including, but not limited to: a. sending Ms Ghimire multiple pictures of a red rose via Facebook, which is clearly understood by the general community as a romantic gesture; b. sending Ms Ghimire ‘gifs’ of love hearts with the words ‘be my valentine’, a reference to ‘Valentine’s Day’, a day synonymous with love, affection and romantic interest; c. the Repeated Requests for a Date; and d. the Statements on Appearance. [109] In the context of the aforementioned conduct, the Respondent submitted that the Commission should find that the multiple references to ‘love” and “always love you” can be considered references to ‘romantic love’, as opposed to ‘love’ in the context of affection towards a colleague or a friend (notwithstanding Ms Ghimire’s denials that a friendship existed). [110] I understand Mr Pushik’s submissions to be to the effect that his conduct was not explicitly sexual in nature and therefore provided no valid reason for his dismissal. In the 22 April Meeting he originally said that “no harmful meaning” was intended by his emojis and messages and talked about “Ms Ghimire being like a granddaughter” to him,59 and at hearing he asked questions of witnesses about the difference between ‘love’ and ‘sex’. Mr Pushik argued in the Application that “If all of my love messages and emojis were taken into account I could be accused of sexual harassment not only of my friends and family members, but of their dogs, cats, ferrets or other pets.” [111] This argument was elaborated on in Mr Pushik’s submissions filed on 18 July 2025. These submissions included the following “the big question for me is why using a few emoji’s on Facebook as well as the word “love” is considered inappropriate. If the meaning of the word is googled it comes up as follows: “In English, “love” generally signifies a deep and intense feeling of affection, fondness or attachment towards another person, animal or thing”. He recalled other employees of the Respondent saying things to him such as “How are you this morning, love”, “How can I help you, love?” or “I love you, Alex” after he did them a favour. He also recalled such things as his colleagues posting love hearts and the like on his colleagues WhatsApp chats if someone “did a good job.” His evidence was that it never crossed his mind that his remarks were inappropriate. He submitted that the First Messages and the Additional Facebook Messages were a positive reaction to Ms Ghimire’s Facebook posts and “nothing else.” Mr Pushik gave evidence that he would post on friend’s stories comments such as “love your travel” and suggesting travel destinations. [112] At hearing Mr Pushik gave the following evidence regarding the First Messages and Additional Facebook Messages (reproduced as transcribed): “So it was when I saw her posts, and she normally love to put posts with her new clothes, with her new bags so if – she was looking very nice, you know, so – and I put my comment that, 'beautiful girl' or 'I love you', you know. So, I mean, you know, so – but it didn't have any sexual content in it. Because, you know, as I said when my colleagues at work in return for example for my favour to them, said, 'I love you, Alex', you know, -- 21 of 34 -- [2025] FWC 3290 22 so I didn't consider her sexual content, content. You know, it was just merely presentation and also kind of like, 'Thank you very much for what you've done'.”60 [113] Mr Pushik’s evidence was that some of his messages and posts were private and some public. He recalled saying words to the effect of 'If I posted it publicly people may have misinterpreted my comment' when asked about his messages at the 22 April Meeting.61 [114] I found Mr Pushik to be an honest and credible witness. He gave the following candid evidence under cross-examination: “I would be romantically interested if I said that, for example, somebody is a beautiful person. You know, like I said already before that, for example, if Pratikshya you know, were more responsive, I wouldn't mind taking her out, you know, for example. But she was not.62 … But to be clear, you were interested in taking Ms Ghimire out to a show as a pretty girl?---Of course, I wouldn't mind. Yeah.63 … So this message clearly says, 'Can take you out one day', which is followed by an emoji of a face with love hearts in there?---Mm-hm. You're offering to take Ms Ghimire out on a date in this message, yes?---Well, yeah (indistinct) but I don't think see anything sexual and anything harassment, you know, so.64 … Do you recognise that asking someone to be your valentine and sending them pictures of red rose that Ms Ghimire would've taken that as romantic interest in her?---I don't know what people would think for it, you know, but obviously we can see it's February, so 12 February so it was obvious it was posted after some nice picture of hers, you know. So I put her, 'be my valentine', and I sent her rose, you know, and it was a very nice gesture, I think you know. But look nobody replied to it. So, you know, like she didn't say, 'I will be your valentine', you know, whatever. So it can be, you know, what do you call a nice gesture? When you make, for example, nice comments on the Facebook for somebody, you know. I guess would you put - you're talking about all the comments and pictures you send your colleagues. Would you put this on a male colleague's page: 'Be my valentine', and a rose?---Only a colleague's page. No, I don't do it for male colleagues, you know. So I don't have - romantically to male pictures you know, but I can make some nice comments. But you know, it's only for ladies, you know - - It's only for ladies that you've got the romantic interest is it?---Yes.”65 -- 22 of 34 -- [2025] FWC 3290 23 [115] I do not consider that Mr Pushik requested sexual favours from Ms Ghimire. It then falls to me to consider whether he made a sexual advance to Ms Ghimire or engaged in “other conduct of a sexual nature” in engaging in the following conduct: a. Sending the First Messages; b. Sending the Additional Facebook Messages; c. the Christmas Party Incident; d. making the Statements on Appearance; and e. making the Repeated Requests for a Date. [116] Based on the documentary evidence filed, the evidence of Ms Ghimire and the evidence of Mr Pushik I find that Mr Pushik engaged in this conduct with the intent of entering into a romantic relationship with Ms Ghimire. Mr Pushik gave honest and candid evidence about his attraction to Ms Ghimire and that he wanted to take her out on a date. Neither Ms Ghimire nor Mr Pushik gave evidence that they were friends or even close colleagues. Ms Ghimire did not encourage or solicit any of this conduct, nor respond to it. I consider, based on her evidence and that of Mr Pushik, that she made it plain that she was not interested in a relationship with Mr Pushik, both by her responses to some conduct such as the Christmas Party Incident and the Repeated Requests for a Date and by her being nonresponsive to other conduct. Mr Pushik properly conceded that she was not responsive to his overtures. Contrary to Mr Pushik’s submissions, his Facebook activity with Ms Ghimire was not ‘a mutual exchange” that “leads to more understanding between people.” There was no exchange. Mr Pushik messaged Ms Ghimire on multiple occasions over a short period and she did not respond. Whilst I accept that Mr Pushik was not Ms Ghimire’s manager, he was in a position of authority over her as a senior employee in the store, she was much younger than him and vulnerable given that she was from Nepal and working at the Respondent whilst on a student visa.66 I have considered the conduct of Mr Pushik in light of this context. [117] I accept that none of the conduct in question was overtly or explicitly sexual in nature. However, I find that sending the First Messages, the Additional Facebook Messages, the Repeated Requests for a Date (other than Mr Pushik’s comments in the store to the effect that “he would do anything for Ms Ghimire”) and making the Statements on Appearance constituted “conduct of a sexual nature”. These messages were sent in the context of Mr Pushik’s unrequited desire to enter into a romantic relationship with Ms Ghimire. However, those comments also crossed over into making and expressing judgements about how beautiful Ms Ghimire was to him. Over the course of approximately two weeks Mr Pushik sent messages to Ms Ghimire including comments that Ms Ghimire was “beautiful”, a beautiful “girl” and offering to “take her out one day.” He made similar comments in the workplace about her appearance. Over the course of three days, he repeatedly sent messages saying “Love”, then “Love you” and then “Do you love me”. Various emojis were sent included one of plump, red lips and two people kissing with a love heart between them. At one point Mr Pushik also posted an image of a love heart including the words “Be My Valentine” and images of red roses. He posted a message on Ms Ghimire’s Facebook profile saying “Always love you.” -- 23 of 34 -- [2025] FWC 3290 24 [118] Ms Ghimire did not encourage or solicit any of this conduct, nor respond to it. Contrary to Mr Pushik’s submission, the fact that these comments or messages were not explicitly sexual and that Ms Ghimire did not expressly tell him that his conduct was unwelcome does not mean that this conduct was not conduct of a sexual nature nor a sexual advance. [119] In reaching this conclusion I have considered the findings of Katzmann J in Taylor v August and Pemberton Pty Ltd,67 where, having considered the case law, her Honour observed at [378] that a “sexual advance may include a declaration of love; it all depends on the context.”68 In similar circumstances to those that arise in this matter, Katzmann J held at [382] that:69 “It was submitted for Mr Grew that there was no romantic proposal in the conversation on 6 January 2020. Strictly speaking that is true. There was no express proposal for sex, marriage, children, a candlelight dinner or even a date. But Mr Grew’s declaration that he had “feelings” for Ms Taylor was an expression of his desire to enter into an intimate personal relationship with her, that is to say, to take their friendship beyond the platonic. Implicit within it was a desire for sex. I am satisfied that the statements made to Ms Taylor in the conversation on 6 January 2020 constitute a “sexual advance” within the meaning of the term in s 28A of the SDA in that it amounts to “an amorous overture” (Spencer v Dowling at 156). Alternatively, it constitutes conduct which invited or otherwise explored the prospect of Ms Taylor participating or engaging in some form of sexual behaviour (Poniatowska at [294]). In this respect they also amounted to “other conduct of a sexual nature” within the meaning of that expression in s 28A of the SDA.” [120] Given my observations of the context of the conduct above, I find that Mr Pushik’s declarations of love and repeated requests for Ms Ghimire to go on a date (both in person and through Facebook) and to be his Valentine or advise whether she loved Mr Pushik were ‘an expression of his desire to enter into an intimate personal relationship with her’. Similar to the situation in Taylor, I consider that implicit within it was a desire for sex. These statements constituted a “sexual advance” in that it amounted to “an amorous overture” and/or “other conduct of a sexual nature”.70 In reaching this conclusion I have considered Mr Pushik’s arguments that sex and love are two different concepts and that he was thanking Ms Ghimire and made similar comments to his friends and family on social media and in the workplace. [121] I respectfully repeat the comments of McCallum JA in Vitality Works Australia Pty Ltd v Yelda (No. 2),71 at [125], made in relation to the term, “conduct of a sexual nature”, as used in the Anti-Discrimination Act (NSW) that:72 “The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries. The scope of the term “conduct of a sexual nature” in s 22A of the Anti-Discrimination Act is properly construed with an understanding of those matters.” [122] I am not persuaded by Mr Pushik’s arguments on this issue regarding his approach to social media. Firstly, Mr Pushik has not tendered any evidence of his other Facebook posts to support this argument. Secondly, whilst it might well be acceptable, in some circumstances, to -- 24 of 34 -- [2025] FWC 3290 25 post hearts in response to messages or exclaim that you love someone as part of an expression of thanks in the workplace I do not accept that in the context of this matter that Mr Pushik was expressing thanks to Ms Ghimire. This submission is without merit. There is no evidence before the Commission that Ms Pushik was thanking Ms Ghimire for anything when he posted on her Facebook page or messaged Ms Ghimire. Further, in my view, there is a significant difference between loving someone’s travel pictures, thanking someone for helping you out in the workplace or placing a thumbs up or a heart on a message and telling someone that they are a beautiful girl, that you love them and asking them on a date. This gap is even more obvious when you consider the circumstances of this case - where the object of Mr Pushik’s affection was less than half his age, patently uninterested in a romance or even a friendship and was a junior colleague in a workplace where Mr Pushik held a managerial position. That said, I do not consider that Mr Pushik’s statement to Ms Ghimire that he “would do anything for her” was anything more than workplace banter and conclude that it was not ‘conduct of a sexual nature’. [123] I am also satisfied, in the circumstances of this matter, that Mr Pushik’s conduct at the Christmas party amounts to conduct of a sexual nature. Second Element [124] In relation to the Second Element, I find that the conduct of Mr Pushik was unwelcome to Ms Ghimire. [125] Bromberg J explained the meaning of “unwelcome” for the purposes of s.28A of the Sex Discrimination Act (Cth) in Ewin v Vergara (No. 4) at [27] as follows:73 “In the context of conduct which is directed (intentionally or not) by one person to another or others, “unwelcome” simply means conduct that is disagreeable to the person to whom it was directed. In Aldridge v Booth at 5 Spender J described unwelcome conduct as conduct that was not solicited or invited and was regarded as undesirable or offensive by the person to whom it was directed. That understanding was adopted by Wilcox J in Hall v A & A Sheiban Pty Ltd at 531 (Hall) and by Mansfield J in Poniatowska v Hickinbotham at [289] (Poniatowska).” (citations omitted) [126] I find that Ms Ghimire did not solicit the conduct and that it was disagreeable or undesirable to her. I unequivocally accept Ms Ghimire’s evidence that: a. she ‘pushed’ the Applicant away when he kissed her on the cheek at the Christmas party. I do not accept Mr Pushik’s submission that the fact that she sat next to Mr Pushik in a photo at the same event (which could have occurred before or after this incident based on the evidence of Mr Pushik and Ms Ghimire) demonstrates that Mr Pushik’s conduct was welcome. b. Ms Ghimire rejected or ignored Mr Pushik’s requests for a date. c. Ms Ghimire determined not to respond to any of the Facebook Messages and the Additional Facebook Messages. -- 25 of 34 -- [2025] FWC 3290 26 d. Ms Ghimire found Mr Pushik’s conduct disagreeable, and it caused her significant anxiety and feelings of discomfort, making her often reluctant to come to work. [127] I reject Mr Pushik’s submission that his conduct was not sexual harassment as Ms Ghimire did not complain. Firstly, I accept her evidence that she did not feel like she was able to stop Mr Pushik or block him as he was older than her and held a managerial position with the Respondent, which made the situation feel intimidating and caused her to worry that her job might be impacted if she spoke up. Secondly, just because someone does not contemporaneously complain that conduct is not welcome, does not make the opposite true. [128] I accept that Mr Pushik genuinely did not intend to upset, offend, humiliate or intimidate Ms Ghimire but this is not determinative of whether someone has engaged in unwelcome conduct of a sexual nature.74 Third Element [129] In relation to the Third Element, I find that a reasonable person would have anticipated the possibility that Ms Ghimire would be offended, humiliated or intimidated by the conduct. The reasonable person is assumed to have some knowledge of the personal qualities of the person harassed. [130] In reaching this conclusion I have had regard to the following: a. the significant age gap between Mr Pushik and Ms Ghimire (34 years); b. that Mr Pushik was in a position of authority over Ms Ghimire (noting that I do not accept Mr Pushik’s submission that because Ms Ghimire was “bossy” with him that he had no authority over her - Mr Pushik was a manager and the third most senior person employed at the store and could direct Ms Ghimire’s work even though she did not work in his section); c. that Ms Ghimire is vulnerable as a result of her being an international Nepalese student on a student visa; and d. the lack of any relationship other than a work relationship between the Applicant and Ms Ghimire. [131] Per the Full Bench’s decision in Queensland Rail (t/a Queensland Rail) v Rainbow,75 there is a broad discretion as to the Commission’s approach to determining whether termination is justified where a number of reasons or incidents are relevant to that assessment.76 In Pearson v Linfox Australia Pty Ltd,77 (as confirmed by the Full Bench on appeal),78 a number of instances were found, in aggregate, to constitute a valid reason in circumstances where any one of those instances may not have justified termination on their own.79 Further, in Stodart v The Employer,80 the Full Bench confirmed that a finding of valid reason based on a pattern of misconduct is not required to be premised on first finding that any one instance of conduct was, in and of itself, capable of constituting a valid reason.81 [132] For the reasons outlined above, I consider that Mr Pushik’s conduct breached the Policy (which applies to conduct in the workplace, at the Respondent’s functions even if out of hours and when interacting with team members including over the internet or social media). The Policy closely mirrors the provisions of the Sex Discrimination Act 1984 (Cth) and makes clear -- 26 of 34 -- [2025] FWC 3290 27 that harassment and sexual harassment is not acceptable and that breaches of the Policy may lead to termination. Similarly, Mr Pushik breached the Code of Conduct. The Code applies to conduct in the workplace, at functions and out of hours if there is a sufficient connection to the workplace (including applying to conduct on social media outside of working hours). Mr Pushik did not contend that a sufficient connection between his impugned conduct, Ms Ghimire and the workplace did not exist. I find that it did, given that the conduct occurred in the workplace, at work functions or over social media (where the only reason for the social media connection and exchanges was that Mr Pushik and Ms Ghimire were colleagues). Other colleagues of Mr Pushik and Ms Ghimire were able to observe the public conduct of Mr Pushik on social media.82 I find that Mr Pushik engaged in sexual harassment and that his conduct was serious misconduct.83 [133] Finally, I note that it is not necessary for me to find that Mr Pushik engaged in sexual harassment, nor serious misconduct, nor a breach of policy in order for me to find that there was a valid reason for his dismissal. The test is whether the Respondent had a sound, defensible or well-founded reason to terminate Mr Pushik’s employment. Even if the Respondent had no relevant policies, even if conduct of Mr Pushik did not meet the statutory definition of sexual harassment or serious misconduct, I would find that the Respondent had a sound, defensible or well-founded reason to terminate Mr Pushik’s employment. Mr Pushik’s behaviour fell well below community standards and expectations. He was working with a young and vulnerable woman over whom he could exert authority. They were not friends. He admits that he wanted to take her on a date, he sent her numerous unreciprocated inappropriate messages, he repeatedly asked her on dates even though she had declined or was unresponsive. He caused Ms Ghimire considerable distress. Conclusion regarding Valid Reason [134] I consider that the conduct of Mr Pushik justified his dismissal. I am satisfied that in all the circumstances a valid reason exists for the dismissal relating to Mr Pushik’s conduct. I consider that the Respondent had a sound, defensible or well-founded reason to terminate Mr Pushik’s employment. This weighs against a finding that his dismissal was harsh, unjust or unreasonable. Was the Applicant notified of the valid reason? [135] Proper consideration of s.387(b) requires a finding to be made as to whether the Applicant ‘was notified of that reason’, being the valid reason found to exist under s.387(a).84 [136] Notification of the reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,85 and in explicit,86 plain and clear terms.87 [137] I have found that there was a valid reason for Mr Pushik’s dismissal at [132] – [134] above. [138] The Commission is not constrained to consider only the reasons identified at the time of dismissal, but in circumstances where different or additional reasons are relied upon, the -- 27 of 34 -- [2025] FWC 3290 28 Respondent will have to “contend with the consequences of not giving the employee an opportunity to respond to such reason…”88 [139] I find that Mr Pushik was notified of the valid reason relied upon at the time of his dismissal, being the sending of the First Messages. The 1 May letter clearly articulates the reasons relied upon including the nature of the alleged conduct and the policies of the Respondent that Mr Pushik had been found to have breached. [140] However, Mr Pushik was not notified of the other matters that I have found to constitute a valid reason for his dismissal. I find, based on the evidence, that the Respondent was not aware of those matters prior to Mr Pushik’s dismissal. I find that in all the circumstances, Mr Pushik was not notified of the reason for his dismissal in explicit, plain and clear terms. This weighs in favour of a finding that the dismissal was harsh, unjust or unreasonable. Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct? [141] 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 under s.387(c). An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.89 [142] 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.90 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.91 [143] Whilst I consider that Mr Pushik was given an opportunity to respond to the allegations and findings regarding the First Messages and his possible dismissal by reason of the 1 May letter, I find that he was not given an opportunity to respond to all of the reasons for his dismissal prior to the decision to dismiss being made. This is, self-evidently, as the Respondent was not aware of many of the matters that I have found to constitute a valid reason for his dismissal. This weighs in favour of a finding that the dismissal was harsh, unjust or unreasonable. Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal? [144] 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. [145] Whilst the Respondent submits that Mr Kenny invited Mr Pushik to bring a support person to the 22 April Meeting at the same time as Mr Pushik was invited to attend the meeting, I do not accept this. This submission is founded on hearsay evidence given by Mr Issa and not the evidence of Mr Kenny. I accept Mr Pushik’s evidence that he was not offered a support person until the beginning of the 22 April Meeting. Mr Pushik declined this offer. There is no evidence that he requested a support person to assist at any discussions relating to his dismissal. -- 28 of 34 -- [2025] FWC 3290 29 [146] This means that the Respondent did not unreasonably refuse to allow Mr Pushik to have a support person. He did not request one. Accordingly, s 387(d) is a neutral factor in relation to the question of whether Mr Pushik’s dismissal was harsh, unjust or unreasonable.92 Was the Applicant warned about unsatisfactory performance before the dismissal? [147] As Mr Pushik was not dismissed on account of any unsatisfactory performance I consider this to be a neutral consideration. To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? [148] Mr Pushik and the Respondent filed no evidence in relation to this consideration. Mr Pushik made no submissions regarding this consideration. The Respondent submitted that it is a large enterprise operating throughout Australia with robust policies and procedures. It submitted that it has, at all times, acted in accordance with these policies and procedures and has afforded Mr Pushik procedural fairness at every stage of the disciplinary process. [149] The Respondent is a large business, and I do not consider that the size of its operations would have been likely to have any significant impact on the procedures followed in effecting Mr Pushik’s dismissal. Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal. Accordingly, this factor is not a relevant consideration. To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? [150] Mr Pushik and the Respondent filed no evidence in relation to this consideration. Mr Pushik made no submissions regarding this consideration. [151] The Respondent submitted that it has a sophisticated human resources function which was involved in the investigation and disciplinary processes leading to Mr Pushik’s dismissal. It submitted that, accordingly, there is no absence of a human resources skillset. [152] I consider that this factor is not a relevant consideration. What other matters are relevant? [153] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. [154] Mr Pushik submits that there were procedural fairness deficiencies in the lead up to his dismissal including that he was asked to attend a meeting with a Store Manager who was acting as the Respondent’s investigator without knowing the purpose of the meeting. He was not offered a support person until the commencement of the meeting. He was not given a copy of any complaint that Ms Ghimire had made at the meeting although he was shown copies of the screenshots of the First Messages. -- 29 of 34 -- [2025] FWC 3290 30 [155] Deprivation of procedural fairness may render a dismissal unfair even where circumstances otherwise justify dismissal. I reiterate my findings above regarding the factors contained in s.387(b), (c) and (d). Whilst I consider that it would have been strongly preferable for Mr Pushik to have been given written notice of the allegations against him, told that they were about ‘sexual harassment’ and offered the opportunity to bring a support person to the 22 April Meeting ahead of time, I do not consider that Mr Pushik was not afforded procedural fairness. The allegation that Mr Pushik had sent the First Messages was made clear at this meeting. He did not deny sending them and had an opportunity to provide context and make submissions about his conduct in that meeting. He did so. He was also told in this meeting that the Respondent considered that if the allegations were substantiated that Mr Pushik may be found to have breached the Code of Conduct and the Policy. Mr Pushik disputed some of the record of the 22 April Meeting. However, he did not dispute saying words to the effect of “There is no sexual context behind it, because I am 63 years old. She is like my granddaughter.” I consider from this that Mr Pushik understood that the allegations were that his conduct had sexual connotations. [156] Mr Pushik was then sent the 1 May letter setting out the allegation and finding of the Respondent. This correspondence identified the breaches of the Code of Conduct and the Policy including the prohibition on sexual harassment. The correspondence stated that the conduct of Mr Pushik constituted serious misconduct and informed Mr Pushik that the Respondent was considering terminating his employment. Mr Pushik was invited to provide additional information and make submissions about other factors that he wanted to be taken into account prior to a decision being made regarding his conduct. He was given three days to do this. He did not provide any further response and did not seek an extension of time to do so. Mr Pushik does not dispute that Mr Kenny repeatedly tried to contact him via text message and phone on 6 and 7 May 2025 and asked him to attend a meeting on 8 May 2025. Mr Pushik acknowledges that he did not take the opportunity to respond to the 1 May letter and says that this was because he had “explained everything” at the 22 April Meeting and “had nothing to add when (he) got the 1 May letter.” I consider that Mr Pushik was afforded “a fair go all round.” [157] Mr Pushik appeared to argue that there was a bias against him in the investigation or a predetermination by the Respondent that he would be dismissed. There is no evidence to support these submissions, and they were not put to Mr Issa in cross-examination. I reject these submissions. Mr Pushik did not specifically raise any other matters that he considered relevant to the question of whether or not the termination was harsh, unjust or unreasonable. However, I have given consideration to the issues that he raised in relation to whether his dismissal was for a valid reason, such as his concerns regarding whether his conduct could have been dealt with differently, such as by Ms Ghimire, Mr Issa or Mr Kenny raising it with him informally and that he felt betrayed by the Respondent not telling him about the allegations ahead of the 22 April Meeting. Whilst Mr Pushik did not raise these matters in support of an argument that the dismissal was harsh, I have nevertheless given consideration to other significant factors that were uncontentious, apparent on the evidence and weigh in favour of a finding that a dismissal was unfair such as Mr Pushik’s age, the impact that this might have on his ability to find other employment, the length of Mr Pushik’s service and that there was no allegation that Mr Pushik had ever engaged in any other misconduct while he was employed by the Respondent. -- 30 of 34 -- [2025] FWC 3290 31 [158] None of these matters persuade me to reach a conclusion that his dismissal was harsh, unjust or unreasonable in the circumstances. Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable? [159] I have made findings in relation to each matter specified in s.387 as relevant. [160] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.93 There was a valid reason for the dismissal of Mr Pushik. I have considered the gravity of Mr Pushik’s misconduct and weighed this against all of the other factors, circumstances and relevant matters applying to his dismissal. These include that he was not notified of the valid reason for the dismissal nor given a proper opportunity to respond to the valid reason, together with his age and the length and quality of his service. In my view the gravity of Mr Pushik’s misconduct outweighs these matters. Other factors were largely neutral. [161] Having considered each of the matters specified in s.387 of the Act, for the reasons given above, I am satisfied that the dismissal of Mr Pushik was not harsh, unjust or unreasonable. I am therefore not satisfied that Mr Pushik was unfairly dismissed within the meaning of s.385 of the Act. The Application is dismissed. [162] An order to this effect will issue with this decision.94 DEPUTY PRESIDENT Appearances: A Pushik on his own behalf J. Tinsley and K Staude on behalf of the Respondent Hearing details: 2025. Sydney. 25 August. Printed by authority of the Commonwealth Government Printer <PR793274> -- 31 of 34 -- [2025] FWC 3290 32 1 [2021] FWC 4582 [13]. 2 [2021] FWC 4130 [19]-[21]. 3 Transcript PN583 – PN585. 4 Exhibit R2, Digital Hearing Book pg 102, Statement of Mr E. Issa [6]. 5 Transcript PN252 – PN256. 6 Transcript PN285. 7 Transcript PN297. 8 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]. 9 Transcript PN548; Exhibit R2, Digital Hearing Book pg 106, Statement of Mr E. Issa [32]-[35]. 10 Exhibit R1, Digital Hearing Book pg 87-88, Statement of Ms P. Ghimire [4]-[7]. (‘Ghimire Statement’) 11 Ibid [11]. 12 Exhibit R1, Digital Hearing Book pg 92-95, Annexures PG-1 and PG-2 to Ms P. Ghimire’s Statement. 13 Exhibit R1, Digital Hearing Book pg 96-101, Annexures PG-3 and PG-4 to Ms P. Ghimire’s Statement. 14 Ghimire Statement (n 10) [14]. 15 Ibid [15]. 16 Transcript PN 128. 17 Transcript PN136-141. 18 Transcript PN190-191. 19 Transcript PN77. 20 Transcript PN82. 21 Transcript PN105. 22 Ibid. 23 Transcript PN118, PN123, PN189. 24 Transcript PN119. 25 Transcript PN189. 26 Exhibit R1, Digital Hearing Book pg 95, Annexure PG-2 to Ms P. Ghimire’s Statement. 27 Transcript PN200-212. 28 Transcript PN216-217. 29 Transcript PN219. 30 Exhibit R2, Digital Hearing Book pg 176-241, Annexure EI-12 to Mr E. Issa’s Statement. 31 Exhibit A3, Digital Hearing Book pg 243, Applicant’s submissions in Reply dated 19 August 2025. 32 Ghimire Statement (n 10) [23]-[27]. 33 Transcript PN475. 34 Exhibit R2, Digital Hearing Book pg 106-107, Statement of Mr E. Issa [31]-[40]. 35 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685. 36 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373. 37 Ibid; Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685. 38 R v Freshmore (Vic) Pty Ltd [2000] AIRC 1019. 39 Shepherd v Felt & Textiles of Australia Pty Ltd (1931) 45 CLR 359, 373; 377-378. 40 Swift v Highland Pine Products Pty Ltd [2023] FWC 1997, [68]. 41 Briginshaw v Briginshaw (1938) HCA 34. 42 [2020] FCAFC 126. 43 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373; Sharp v BCS Infrastructure Support Pty Ltd [2015] FWCFB 1033, [25], quoting B, C and D v Australian Postal Corporation t/a Australia Post [2013] FWCFB 6191, [35]. -- 32 of 34 -- [2025] FWC 3290 33 44 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685. 45 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213, [24]. 46 Pastrycooks Union v Gartrell White (No. 3) [1990] 35 IR 70, [84]. 47 Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836, [7]. 48 Advanced Health Invest Pty Ltd v Chan [2019] FWCFB 5104, [43]; Jain v Infosys Limited [2014] FWCFB 5595, [35]-[36]. 49 Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836, [7]. 50 [2021] FWCFB 3457. 51 Ibid [58]. 52 [2011] FWAFB 523. 53 Ibid [51]. 54 (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213. 55 Ibid [24]. 56 Exhibit R2, Digital Hearing Book pg 134, Annexure EI-5 to Mr E. Issa’s Statement. 57 Ibid. 58 Exhibit R2, Digital Hearing Book pg 116, Annexure EI-4 to Mr E. Issa’s Statement. 59 Exhibit R2, Digital Hearing Book pg 113, Annexure EI-3 to Mr E. Issa’s Statement; Exhibit R2, Digital Hearing Book pg 158, Annexure EI-6 to Mr E. Issa’s Statement. 60 Transcript PN105. 61 Transcript PN179. 62 Transcript PN183. 63 Transcript PN188. 64 Transcript PN200-201. 65 Transcript PN215-217. 66 Ghimire’s statement (n 10) [3], [22]. 67 [2023] FCA 1313. 68 Ibid [387]. 69 Ibid [382]. 70 Spencer v Dowling and another [1997] 2 VR 127, [156]. 71 [2021] NSWCA 147. 72 Ibid [125]. 73 [2013] FCA 1409, [27]. 74 See the findings of Bell P and Payne JA in Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147 at [98] in relation to similarly worded provisions of the Anti-Discrimination Act 1977 (NSW). 75 [2022] FWCFB 147. 76 Ibid [41]. 77 [2014] FWC 446. (‘Pearson 1’) 78 [2014] FWCFB 1870. 79 Pearson 1 (n 77) [51]. 80 [2022] FWCFB 88. 81 Ibid [29]. 82 Ghimire Statement (n 10) [9], [14]. 83 Fair Work Regulations 2009 (Cth) reg 1.07. 84 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55]. -- 33 of 34 -- [2025] FWC 3290 34 85 Crozier v Palazzo Corporation Pty Ltd t/as Noble Park Storage and Transport, Print S5897 AIRCFB (2000), [73]. (‘Crozier’) 86 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998). 87 Ibid. 88 APS Group Placements Pty Ltd v O’Loughlin [2011] FWAFB 5230, [51] per majority. 89 Crozier (n 85) [73]. 90 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, [26] quoting Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7. 91 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7. 92 UES (Int’l) Pty Ltd v Harvey [2012] FWAFB 5241, [44]. 93 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]. 94 PR793790. -- 34 of 34 --