Andrew O'Brien v Ventia Pty Limited
[2021] FWC 5916
•15 SEPTEMBER 2021
| [2021] FWC 5916 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Andrew O’Brien
v
Ventia Pty Limited
(U2020/15539)
DEPUTY PRESIDENT DEAN | CANBERRA, 15 SEPTEMBER 2021 |
Application for an unfair dismissal remedy – dismissal unfair – reinstatement ordered.
[1] Mr Andrew O’Brien was employed with Ventia Pty Ltd (Ventia) as a Station Officer at HMAS Cresswell located in Jervis Bay. His employment with Ventia was terminated on 16 November 2020 for reasons arising from an incident which occurred on 19 October 2020 (the Incident) at the Naval establishment at HMAS Cresswell.
[2] At the same time as Mr O’Brien’s dismissal and in related circumstances, another employee and firefighter, Mr Craig Lenehan, was also dismissed.
[3] Mr O’Brien and Mr Lenehan both made an application pursuant to s.394 of the Fair Work Act 2009 for a remedy in respect of their dismissal. The two applications were heard together. However, during these proceedings the parties resolved Mr Lenehan’s application, resulting in it being discontinued. Consequently, this decision deals solely with the application brought by Mr O’Brien.
[4] Evidence received in these proceedings identified as pertaining to Mr Lenehan’s application and being irrelevant to Mr O’Brien’s application has not been considered in this decision.
[5] The hearing was conducted by video on multiple days in April and May 2021 and was concluded on 27 May 2021. Both Mr O’Brien and Ventia were granted permission to be represented pursuant to s.596 of the Act. Mr J McKenna of Counsel appeared for Mr O’Brien and Mr D O’Sullivan of Counsel appeared for Ventia.
[6] For the reasons set out below, I find that Mr O’Brien’s dismissal was unfair, and I have decided in the circumstances that the primary remedy of reinstatement should apply.
Background
[7] Mr O’Brien joined the Navy in 1981. In 1985 he was transferred to the firefighting branch of the Navy where he performed firefighting duties. In around 1999 the Navy contracted out its firefighting services to private companies and Mr O’Brien has since been in the employ of a number of entities who were awarded the firefighting contract. He commenced with Ventia (previously named Broadspectrum) in around 2014. At the time of his dismissal, he held the position of Station Officer and worked shifts between two naval bases: HMAS Albatross and HMAS Creswell.
The Incident
[8] On 10 October 2020 Mr O’Brien attended his shift at Creswell. The firefighting work at Creswell involves four platoons, each of which is rostered on for two consecutive day shifts of 10 hours followed by two night shifts of 14 hours, and then four days off. Mr O’Brien was in B platoon and was essentially the supervisor of the firefighters of that platoon.
[9] An incident occurred in the kitchen of the fire station between Mr Thaler, another Station Officer, and Mr Lenehan, which involved a verbal exchange between the two (the Incident). On Mr Thaler’s version of events, he asked Mr Lenehan how his day was, and in response Mr Lenehan said words to the effect of “it talks, hasn’t spoken to me in weeks and now it does”. Mr Thaler said he then heard Mr Lenehan say: “act like a school kid get treated like a fucking school kid … I don’t give a fuck who he thinks he is, act like a school kid, get treated like a school kid”.
[10] Mr O’Brien was in the TV room of the fire station with another firefighter, Mr Rigoni (Leading Firefighter), at the time and did not witness the Incident.
[11] There is a dispute as to specifically what were said during the verbal exchange between Mr Thaler and Mr Lenehan, but what is more relevant to the determination of this matter is what happened immediately after the Incident.
[12] Mr Thaler gave evidence that he spoke to Mr O’Brien immediately after the Incident saying words to the effect of “I’ll leave you to deal with this”. Mr O’Brien’s evidence was that he took steps to address the Incident, including having a counselling discussion with Mr Lenehan, and asking Mr Lenehan to call Mr Pakes (Regional Manager) to advise him of the Incident with Mr O’Brien present during the conversation. He also asked other firefighters who were present at the time of the Incident to write an account of what they observed.
[13] After the Incident, Mr O’Brien was not rostered to work again until 15 October 2020.
After the Incident
[14] On 14 October 2020 Ventia informed Mr O’Brien that he was suspended from duties with immediate effect pending investigation into allegations of serious misconduct and performance concerns. The letter of 14 October 2020, written by Mr Stephen Densmore (Acting Project Director North East Zone), reads as follows:
“Dear Andrew,
Suspension from Duty - Pending Investigation into Allegations of Serious Misconduct
This letter is to notify you that you are stood down effective immediately on normal wages pending investigation into allegations of serious misconduct and performance concerns.
The allegations are that on Saturday 10th October you were the station officer on duty and witnessed a workplace incident between Firefighter Craig Lenehan and Station Officer Stuart Thaler. It is alleged that you did not address the incident during or after it occurred.
This allegation if substantiated may constitute serious misconduct breaches as outlined in the Code of Conduct, specifically:
CONDUCT PRINCIPLE 1
Maintaining a safe and healthy workplace.
CONDUCT PRINCIPLE 13
Maintaining complete, accurate and timely business records.
CONDUCT PRINCIPLE 15
Promoting workplace equality and diversity.
CONDUCT PRINCIPLE 16
Preventing bulling and harassment
During suspension you are restricted from accessing any Defence site or participate in any work activities. Please be advised that if you engage in any conduct that is considered malicious or significant during suspension you may face further disciplinary action including and up to termination of employment.
To ensure the integrity of the investigation and to maintain confidentiality, you are directed not to communicate or discuss this matter with other members of your team, other employees directly or indirectly involved, or any of our contractors, suppliers and clients.
We take this opportunity to remind you our employee assistance program can be accessed for free, independent, confidential, professional counsel ling and support by calling [phone number].
If you have any questions, please contact Mr. Mitchell Pakes, Regional ARRFF Manager, North East Zone.”
[15] By letter of 19 October 2020, Mr O’Brien was advised that Ventia had engaged an external investigator to investigate allegations of serious misconduct made against him. The allegations were stated as follows:
“The allegations are that on Saturday 10th October you were the station officer on duty and witnessed a workplace incident between Firefighter Craig Lenehan and Station Officer Stuart Thaler. It is alleged that you did not address the incident during or after it occurred.”
[16] Mr O’Brien’s evidence was that he did not receive this letter until the afternoon of 20 October as he was told by Mr Pakes that the initial email attaching the letter was sent to an incorrect email address.
[17] On 30 October 2020, a Show Cause Notice was issued to Mr O’Brien by way of letter in the following terms:
“Dear Andrew
Show Cause Notice - Serious Misconduct Breaches
I refer to your suspension from duty into allegations of serious misconduct as per the letter dated 14th October 2020. As you are aware an external investigator was engaged to provide on independent and thorough investigation into the allegations.
The investigation has now been completed and the findings of the investigation determine you have engaged in serious misconduct breaches of company policy. The investigator concluded, after taking into consideration all evidence, you have acted inappropriately and in an unacceptable manner by not managing or reporting a serious incident that occurred on the 10th October 2020 at HMAS Creswell site. You are aware of your responsibilities and hove undertaken training in relation to ‘Respectful Workplace Behaviour’ and ‘Health & Safety Policy, Event Reporting’ (which are all up to date and have been signed off by you in August 2020 and June 2020). The investigation findings determine that you did not follow set procedures and failed in your duty as a Station officer to behave at on acceptable level in line with expected standard.
The serious misconduct breaches include: Code of Conduct
Principal 1 - Maintaining a safe and healthy workplace.
Principal 13 - Maintaining complete, accurate and timely business records.
Principal 15 - Promoting workplace equality and diversity.
Principal 14 - Preventing bullying and harassment.
House Rules: (Serious Misconduct)
(h) Intimidating, bullying, harassing other employees
(l) Assaulting (either verbally or physically) other employees
(w) Actions that have the potential to bring Broadspectrum into disrepute
(x) Actions that have caused, or have the potential to cause, Broadspectrum to lose trust and confidence in the employee.
I must remind you that you were placed on afinal warning on the 4th August 2020 due to previous performance and conduct issues. You are formally advised that due to the seriousness and nature of these breaches you must show cause as to why your employment should not be terminated.
You must provide a written response to this show cause notice. The response should be sent to the Human Resources representative, Ms Kezia Smith, Senior People & Capability Business Partner by 3pm on Tuesday 3rd November 2020 (Australian Eastern Standard Time) via email at [email address].
Failure to respond to this show cause notice and provide a valid and relevant response by the due date may result in termination of employment.
You are reminded that this matter is being treated as confidential. To ensure the integrity of the investigation you are directed to keep this matter and the investigation confidential. You are directed to not discuss the allegations with any employees or contractors of the company. In consideration of the anonymous nature of the complaint, you also must not engage in speculation as to the identity of the complainant.
You are advised that it is unlawful for a person to victimise or retaliate against another person who is involved in a workplace complaint. If you engage in such conduct (or others engage in that type of conduct on your behalf) you will be subject to disciplinary action. This may include termination of your employment.
Finally, we take this opportunity to remind you that you are entitled and encouraged to contact our Employee Assistance Program, which is a free and confidential counselling service available to staff to assist you with any concerns you may have. Should you wish to use this service, the Employee Assistance Program can be contacted on 1800 659 404.
If you have any questions about the information contained in this letter please contact Kezia Smith, Senior People and Capability Business Partner on [telephone number].
Yours Sincerely
[Signature]
Daron White”
[18] On 2 November 2020, Mr Stephen Horton of the UFUA wrote to Ventia in respect of the Show Cause Notice the following:
“Dear Kezia
I am writing to you in my capacity as the Industrial Representative of both Craig Lenehan and Andrew O'Brien.
Both Craig Lenehan and Andrew O' Brien have been issued Show Cause Notices following a recent investigation into an alleged incident.
Both of these Show Cause Notices, sent by yourself by email just prior to 5:00pm on Fri 30 October 2020, give the respondents until 3:00pm on Tuesday 3 November 2020 to provide a written response to the Show Cause Notice. The letter also states that the 2 respondents "must provide a written response to this show cause notice" and that "Failure to respond to this show cause notice and provide a valid and relevant response by the due date may result in termination of employment."
I express concern that the Show Cause Notices fail to contain any details of the incident that is alleged to have occurred and how this constitute serious misconduct, nor have the respondents been provided with a copy of the Investigator's Report or any part of that report which detail the allegations that have levelled against them.
It is both unreasonable and unfair for either respondent to be expected to provide a response when no details of the allegation have been provided.
Consequently, we require that both Craig Lenehan and Andrew O'Brien receive either a copy of the Investigator's Report, or the relevant parts which Broadspectrum/Ventia are relying upon to allege the serious misconduct.
Following the provision of the above information, we require 1 (one) full week to allow the respondents the opportunity to digest all relevant information obtained by Broadspectrum/Ventia, before submitting their responses. If Broadspectrum/Ventia is relying, or intend to rely, on any information in making a decision regarding the respondents' employment, this information must be provided to both Craig Lenehan and Andrew O'Brien in order to provide them sufficient time to consider their responses.
We will endeavour to provide a written response to you in 1 (one) full week following the provision of all information referred to above. This information includes the provision of the specific findings contained in the Investigator's Report.
Regards
Steve Horton
Industrial Officer”
[19] Ventia responded to Mr Horton’s email on 4 November:
“Dear Stephen
Your email has been forwarded to me for response.
Suffice to say Broadspectrum does not share or agree with your views, that being said we will extend the response period by an additional 24 hours for both parties which is more than reasonable.
Kind Regards
Matthew Morris
National Manager, Human Resources and Employee Relations, Defence Base Services”
[20] On 5 November 2020, Mr O’Brien wrote to Ventia the following:
“I am writing in response to the letter: Show Couse Notice -Serious Misconduct Breaches which was attached to an email: Sensitive - Show Cause Notice you sent me on Friday, 30 October 2020 at 4:43pm.
In the letter, it states that:
'The investigator concluded, after taking into consideration all evidence, you have acted inappropriately and in an unacceptable manner by not managing or reporting a serious incident that occurred on the 10th October 2020 at HMAS Creswell site."
and that I am being:
"... formally advised that due to the seriousness and nature of these breaches you must show cause as to why your employment should not be terminated."
The specifics of the investigator's findings have not been provided to me in any form, nor to my industrial representative Steve Horton, UFU Industrial Officer, despite requests for this to occur. Consequently, I am being prevented an opportunity to present a defence against allegations of which I have no knowledge. This is therefore a denial of procedural fairness.
I therefore request that the specifics of the allegations are provided to me, with adequate time for me to liaise with my industrial representative, so that I am able to formulate a response to the actual allegations.
I await your reply.”
[21] Mr O’Brien’s letter of 5 November was responded by Ventia on 10 November:
“Dear Andrew,
In response to your request, and in addition to several instances of information already being provided, please find below information relating to your pending show cause matter.
Mr O'Brien failed in his position of station officer to intervene in an incident on the 10th October 2020 between Craig Lenehan and Stuart Thaler.
Mr O'Brien failed to address the incident and behaviour of his team member Craig Lenehan.
Mr O'Brien failed in his duty as a station officer by not reporting appropriately as the station officer. Responsibilities including "Incident Reporting Flow Chart" failure - breach of safety reporting policies - failure to report matter to Regional manager
In Summary - SO O'Brien has acted inappropriately and in an unacceptable manner by not managing the occurrence of 10/10/2020; by not following set required procedures and in particular by not immediately reporting the matter to RM Pakes. His behaviours fall into the ‘Serious Misconduct’ area with it being considered that these behaviours are below the standard required of a Station Officer. It is noted that his training in relation to ‘Respectful Workplace Behaviour’ and ‘Health & Safety Policy, Event Reporting’ are up to date and have been signed off by him in August 2020 and June 2020 respectfully.
Breaches include: Code of Conduct -Sections:-
*Principle 1 - Maintaining a safe & healthy workplace;
* Principle 13 - Maintaining complete, accurate and timely business records;
* Principal 15 - Promoting workplace equality and diversity;
* Principal 16- Preventing Bullying and Harassment.
House Rules - (Serious Misconduct) Sections:-
* 4W - Actions that have the potential to bring Broadspectrum into disrepute;
* 4X - Actions that have caused, or have the potential to cause, Broadspectrum to lose trust and confidence in the employee.
Code of Business Conduct: Page 23 - Preventing Harassment.
Due to privacy reasons the independent investigators report will not be distributed.
We approve a further 24 hours to respond to this show cause notice. You have until 5pm on Thursday 11th November 2020 to respond to the show cause notice. I must remind you that failure to respond within the timeframe may result in termination of employment.
Kezia Smith
Senior Business Partner I People & Capability I Defence Base Services”
[22] By way of email correspondence of 11 November, Mr Horton notified Ventia of a dispute under clause 12 of the Agreement. The Particulars of the dispute were expressed as follows:
“Both SO Andrew O'Brien and Firefighter Craig Lenehan have been denied natural justice and procedural fairness insofar as they have not been given a reasonable opportunity to deal with relevant matters adverse to their interests when required to respond to allegations of serious misconduct. Additionally, the continued issuing of extremely short deadlines for responses, particularly considering the gravity of the situation which could result in termination of their employment, has been a source of continued concern. Both the issue of adequate provision of information, including a copy of the investigator's report or parts pertaining to the allegations, and an adequate timeframe in which to respond have been sort by both the respondents, but to no avail. Given this situation, O'Brien and Lenehan have not been given a reasonable opportunity to present their case and have therefore been denied natural justice and procedural fairness; this dispute is subsequently lodged in response under Cl. 12 of the Agreement.
[23] On 12 November 2020, Mr O’Brien was emailed a letter dated 1 November which required him to attend a meeting via telephone on 13 November to discuss the outcome of the show cause investigation.
[24] Later on 12 November 2020, Mr O’Brien wrote to Mr Smith the following:
“Dear Kezia
I am unable to attend the meeting scheduled for tomorrow.
Please note that I am represented regarding this matter by Steve Horton, Industrial Officer of the UFU. Please refer all correspondence regarding this matter to him directly.
I am also advised that no further discussion of the allegations of serious misconduct is to occur until the dispute regarding the provision of all relevant information by Ventia has been resolved.
Regards
Andrew”
[25] Mr Horton also wrote to Mr Pakes on 12 November the following:
“Dear Mitchell
I have been informed that meetings have been called with Andrew O'Brien and Craig Lenehan ‘to discuss the outcome of the show cause investigation.’ These meetings were advised through letters attached to emails sent today and are scheduled for tomorrow.
Again, Ventia have failed to grasp the most basic principles of natural justice and procedural fairness in its dealing with our members regarding this matter.
I will also point out that Ventia and UFU are in dispute over the withholding of information essential for our members to have a reasonable opportunity to present their case, and for not providing a reasonable time frame for our members to respond to these allegations.
Until this dispute is resolved, the provisions of sub-clause 12.2 apply which state that: While the above procedures ore being followed, including the resolution of any dispute by FWC pursuant to Step 5, work must continue and the status quo must apply in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring.
No further correspondence or communication regarding the allegations of serious misconduct is to occur until this dispute has been resolved.
Additionally, all correspondence regarding this dispute is to be sent to me directly. I await your reply to the Step 2 Notification of Dispute.
I trust the requirements outlined in this email are clear.
Yours sincerely
Steve Horton
Industrial Officer”
[26] Mr Pakes responded to Mr Horton’s email as follows:
“Dear Steven
Thank you for your email.
Ventia reserves the right to communicate with its staff as necessary and your request is noted. Any further communication with Mr O'Brien and Mr Lenehan ("Parties") will also include you as well.
The merits and value of procedural fairness and have been afforded to the two parties you represent at every step of the process.
Your dispute lodgement is received and acknowledged, however this will not prevent a decision being token in relation to the parties potential conduct.
And while your requirements might be outlined in the email it does not mean the Company shares or agrees with your requirements.
I will seek advice in relation to a response to your purportedly claimed dispute and respond in due course.
Also for your information I have emailed both Craig and Andrew requesting a time suitable to them to meet with us. Noting if we don't have a response by 12pm (AEST) Monday 16th November, a decision may be made regarding the outcome of the investigation in their absence.
Kind Regards Mitchell
Mitchell Pakes
Regional ARRFF Manager, North East Zone”
[27] On 13 November 2020, Davies Lawyers acting on behalf of UFUA wrote to Ventia requesting confirmation in writing by 16 November that Ventia agree to comply with the status quo provisions of the Agreement to take no further disciplinary action against Mr O’Brien and Mr Lenehan while the steps in the Dispute Resolution procedure were being followed.
[28] On 16 November 2020, Mr O’Brien was notified of his dismissal by way of letter which reads as follows:
“Dear Andrew,
Show Cause Outcome
I refer to your suspension from duty into allegations of serious misconduct as per the letter dated 14th October 2020. As you are aware an external investigator was engaged to provide an independent and thorough investigation into the allegations.
The company found that you engaged in serious misconduct which amounted to breaches of the Code of Conduct, House Rules (Serious Misconduct) and incident reporting responsibilities. A show cause notice was provided to you on 30th October 2020 to explain your behaviour and respond in writing as to why your employment should not be terminated.
You were offered three extensions to respond to the show cause notice allegations. The due date for your response was required on Wednesday 11th November 2020. A response was provided by your union representative on the due date and this was taken into consideration in the final decision-making process.
Due to your current performance status and subsequent serious misconduct breaches, the company has determined you are not suitable for ongoing employment. Your employment as a Station Officer is terminated effective immediately (16th November 2020).
You will be paid all statutory entitlements including the notice period consistent with your contract of employment. These amounts will be subject to taxation and will be paid into your nominated bank account. Your final superannuation payments will also be paid into your superannuation fund. Any information pertaining to your termination payment can be made to the payroll office on 1300 694 062.
We remind you of your post-employment obligations to return any company property, including DCAC pass, Laptop, mobile phone, uniforms, and intellectual property. Failure to return company property may result in delays of processing your final termination payment. You are expected to return these items immediately.
We take this opportunity to remind you that you are entitled and encouraged to contact our Employee Assistance Program, post-employment which is a free and confidential counselling service available to staff to assist you in these challenging times. Should you wish to use this service, the Employee Assistance Program can be contacted on 1800 659 404.
If you have any questions about the information contained in this letter please contact Kezia Smith, Senior People and Capability Business Partner on [telephone number].
Yours Sincerely
[Signature]
Daron White Project Director North East Zone”
The case for each of the parties
[29] The facts surrounding the Incident and the events that occurred immediately thereafter are largely undisputed. The evidence and submissions set out below focus on those matters relevant to what needs to be determined to ascertain whether Mr O’Brien’s dismissal was unfair.
The case for Mr O’Brien
[30] Mr O’Brien gave evidence in support of his application. Mr Lenehan, Mr Alex Ross (Leading Firefighter), Mr John Rigoni (Leading Firefighter) and Mr Tugrul Tanrikulu (former Firefighter) also gave evidence in the proceedings, although not all their evidence was directly related to Mr O’Brien’s application.
[31] Mr O’Brien contended that his dismissal was unfair on the following grounds:
a. There was no valid reason for his dismissal related to his capacity or conduct;
b. The dismissal was procedurally unfair;
c. The warning now apparently relied upon by Ventia had not been provided to Mr O’Brien before 10 October 2020;
d. Ventia was obliged to apply the status quo in accordance with the applicable enterprise agreement; and
e. The dismissal was a grossly disproportionate response to the conduct.
[32] The submissions made on behalf of Mr O’Brien, based on the evidence before the Commission, covered the following:
a. Mr O’Brien was not aware of any alleged verbal assault of Mr Thaler by Mr Lenehan. He was also not aware of anything that would meet the definition of an ‘event’ under the applicable Ventia policy. Notwithstanding that, he did take action to bring the interaction to the attention of Ventia management. He had started a process of obtaining written records of what had happened but was unable to complete that process when he was stood down on 14 October, before he returned to work for his next shift after the Incident.
b. There were deep flaws in the process adopted by Ventia both in the investigation and in the show cause process. In particular, the relevant part of the investigation and the show cause process all occurred at a time when Mr O'Brien had no capacity for work and that had been brought to Ventia's attention.
c. The question of whether Mr O’Brien was obliged to take certain action in relation to the Incident involved two components. First, it requires the Commission to identify when an obligation to report an interaction arose and second, identify what Mr O’Brien knew about the interaction such that any obligation would be triggered.
d. In terms of the allegation that Mr O’Brien failed to comply with a Ventia policy by not reporting the Incident, Mr Pakes and Mr Thaler in their evidence gave a different definition of a reportable event. Mr Pakes’ evidence was that an event that had to be reported was anything that could occur in the workplace that might require to be reported. However, this is inconsistent with the policy and is so circular that it renders the definition useless.
e. Mr Thaler’s definition of a reportable event is closer to what is contained in the health and safety policy, which he referred to as an obligation to report matters where it involved an accident, a near miss or an injury. Nevertheless, Mr O’Brien was never taken to this definition in the investigation or in the show cause process.
f. Further, based upon the information made available to Mr O’Brien about the Incident, none of the definitions of a reportable event were met.
g. The evidence of Mr Thaler to the effect that he was verbally assaulted and sworn at by Mr Lenehan was not substantiated. The evidence of Mr Lenehan, Mr O’Brien, Mr Rigone and Mr Wetherell do not establish that Mr Thaler was verbally assaulted or that the incident was one that met the definition of a reportable event.
h. The statement made contemporaneously by Mr Wetherell on the day of the Incident demonstrates the Incident could not possibly give rise to a reportable event involving an unplanned or uncontrolled event resulting in actual or potential injury. It did not identify an accident, near miss or injury which meets the definition proffered by Mr Thaler.
i. Significant weight should be placed on Mr Rigone’s evidence. He was seated in the immediate vicinity to Mr O’Brien at the relevant time. Mr Rigone is a senior employee of Ventia and it is not in his interest to give false evidence against his employer.
j. In terms of the dispute in evidence about how loudly Mr Thaler spoke to Mr O’Brien about the Incident, what remains relevant was Mr Thaler’s own admission in cross examination that he did not tell Mr O’Brien that he felt emotionally damaged or that he had suffered an injury as a result of the Incident. There is no evidence to support a finding that a reasonable person would interpret what Mr Thaler said to Mr O’Brien as reporting an actual or potential injury.
[33] In closing, Counsel for Mr O’Brien said:
“… what occurred on 10 October was an interaction between two grown adults. Two experienced fire fighters working in a fire station, a fire station where Mr Rigone says that swearing is the norm and that everyone's a stirrer. This was an interaction between two adults. Of that interaction, of what Mr O'Brien observed - what he saw and heard and of what Mr Lenehan told him about the incident, there was nothing, in my submission, that triggered an obligation under any policy of Ventia to commence a formal reporting process and in those circumstances it is submitted that no valid reason arises because no obligation was triggered.”
[34] Much of what Mr O’Brien did after the Incident was not in issue. He counselled Mr Lenehan, told him not to ‘backchat’ a station officer, and that he should apologise to Mr Thaler in a few days when things had cooled down. It is also not in dispute that Mr O’Brien asked Mr Lenehan and Mr Rigone to write statements of what had occurred. If Mr O’Brien had not been stood down on 14 October he would have continued with that process, and he would have spoken to Mr Pakes on 15 October about the Incident, which was when he was next rostered to work.
[35] In terms of Mr O’Brien’s previous warning, it was submitted that any warning (if actually given) is only relevant to whether there was a valid reason for his dismissal if he was obliged to take action arising from the Incident. Absent any wrongdoing by Mr O’Brien, the issue of whether he had been given a previous warning and the contents of that warning is not relevant. Further, Ventia’s reliance on any previous warnings supports the proposition that the valid reason it relied upon for the dismissal was with respect to capacity rather than conduct.
[36] There is no dispute that Ventia never placed Mr O’Brien on a formal performance management plan.
[37] Mr White, the signatory to the termination letter and presumably the ultimate decision-maker, was under the misapprehension that Mr O'Brien was the subject of a performance management plan.
[38] It was submitted that the investigation process, the show cause process and the termination process were all flawed. The investigation conducted by Mr McMahon occurred at a time when Mr O’Brien was certified unfit. Further, the interview was conducted at a time when he was driving in his car on the basis that Mr McMahon told him that he wanted to finish up with his investigation.
[39] The investigation report itself did not point to any specific policy and explain why it was said that there had been a noncompliance with that policy. It failed to identify how the findings against Mr O’Brien constituted serious misconduct.
[40] The show cause letter then went further than the findings of the investigation report and asserted breaches of the house rules, serious misconduct pertaining to intimidating, bullying, harassing other employees, and assaulting either verbally or physically other employees. There is no basis to allege serious misconduct against Mr O’Brien with respect to these matters and this was acknowledged by Ms Smith’s evidence.
[41] It was submitted that differential treatment was afforded to Mr O’Brien. Mr Thaler was in the same position as Mr O’Brien in terms of having an obligation to report any occupational health and safety issue. His assertion that the obligation to report is limited to the delegated supervisor on shift is not supported by any Ventia policy.
The Case for Ventia
[42] Evidence was given by the following persons:
a. Mr Mitchell Pakes,
b. Ms Kezia Smith,
c. Mr Thaler,
d. Mr Daron White,
e. Mr Glen Harrison,
f. Mr David Morgan, and
g. Mr Benjamin Wetherill
[43] Ventia contended that it raised performance concerns with Mr O’Brien in a meeting on 18 June 2020. The performance concerns included making inappropriate comments about the national manager and a failure to undertake mandatory reporting, and following the meeting Mr O'Brien was informed that he was on a first and final warning.
[44] Ventia said that the warning was summarised in correspondence dated 4 August 2020. However, it acknowledged during the hearing that there was a factual disagreement as to whether this letter was provided to Mr O'Brien.
[45] In terms of the Incident, Ventia said that it occurred at the beginning of Mr O'Brien's shift. After the Incident occurred, Mr Thaler asked Mr O'Brien to ‘deal with this’. Ventia acknowledged that Mr O'Brien requested other members of the platoon to make statements of their recollections of the Incident and that Mr O’Brien spoke with Mr Lenehan about the Incident.
[46] Ventia submitted that it was unfortunate that each of the witnesses to the Incident gave a different account of what was said, but although the accounts were different, it was Mr O’Brien’s perception of the Incident which set the context for his conduct. It highlighted the evidence of Mr O’Brien to the effect that Mr Thaler looked angry and upset and it was quite a heated situation.
[47] Mr Thaler made a complaint to Ventia regarding the Incident and about other inappropriate behaviour in the workplace. As a result, Ventia decided that an investigation needed to be undertaken.
[48] On 14 October 2020 Mr O'Brien was informed that he was stood down with pay pending an investigation into his conduct in relation to the Incident. Mr Trevor McMahon was engaged to conduct the investigation.
[49] Ventia received the investigation report on or around 28 October 2020 (the Report). The Report concluded the allegations made against Mr O'Brien were substantiated and constituted contraventions of various Venita policies.
[50] The process that then led to Mr O'Brien's dismissal is set out earlier and is uncontroversial in terms of the correspondence that went between the parties.
[51] Ventia contended that it had a valid reason for dismissing Mr O'Brien because:
a. Mr O'Brien's own evidence was that he was aware but there was a serious situation that occured on 10 October 2020 (ie the Incident) between Mr Thaler and Mr Lenehan, and that he took the time to speak to Mr Lenehan and request statements from the others who were present at the time; and
b. Mr O'Brien had the opportunity to inform Venita that he was aware of the Incident during the telephone call between Mr Lenehan and Mr Pakes, and inform Mr Pakes that he would make a report once he returned to work. That he did not do so, it contended, was indicative of his continued poor performance.
[52] In terms of the requirement to report the Incident, Ventia contended that the Incident was clearly captured within the definition of ‘event’ under the applicable Ventia policy which required the reporting process to be followed.
[53] Ventia did not dispute that Mr O’Brien counselled Mr Lenehan. It also accepted that an entry was made in the ‘occurrence book’ and that a phone call was made to Mr Pakes, as was required by the first three steps of the reporting process.
[54] Ventia disputed, however, that the report to Mr Pakes and the entry to the occurrence log were accurate, in that it was suggested that the situation had been dealt with and resolved when it had not been resolved. Ventia also submitted that Mr O’Brien did not enter a ‘record of conversation’ within 24 hours or make an entry into the BEAMS system as was required by the reporting process. It contended that Mr O’Brien had the opportunity to complete the record of conversation from home at any stage prior to being stood down but did not do so until 15 October, being the day after he was stood down.
[55] Ventia contended that Mr O’Brien was notified of the reason for his dismissal and given an opportunity to respond.
[56] Ventia also contended that Mr O’Brien had been given warnings on 18 June and 4 August 2020.
[57] In terms of remedy, Ventia submitted that Mr O'Brien's application should be dismissed however should the Commission determine that the dismissal was unfair, it submitted that reinstatement or re-employment was not appropriate because of the breakdown in trust and confidence that was irretrievable.
Consideration
Protection from Unfair Dismissal
[58] There is no dispute and I am satisfied that Mr O’Brien is a person protected from unfair dismissal by virtue of s.382 of the Act. I now turn to consider if his dismissal was unfair within the meaning of the Act.
Was the dismissal unfair?
[59] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC 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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
[60] There is no dispute that Mr O’Brien was dismissed and that subsections (c) and (d) do not apply.
Was the dismissal harsh, unjust or unreasonable?
[61] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[62] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd1as follows:
“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[63] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.2
Valid reason - s.387(a)
[64] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”3 and should not be “capricious, fanciful, spiteful or prejudiced.”4 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.5
[65] In cases concerning conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred6. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct and therefore acted in the belief that the termination was for a valid reason. The Commission must make a finding as to whether the conduct occurred based on the evidence before it7.
[66] Further, 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 reason8.
[67] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.
[68] It is well settled that the employer bears the onus of establishing the misconduct upon which it relies to demonstrate a valid reason for the dismissal.
[69] For the reasons that follow, I find that the evidence does not support a finding that there was a valid reason for Mr O’Brien’s dismissal.
[70] Ventia’s case was in essence that Mr O’Brien:
a. was obliged to take certain action in relation to the Incident;
b. failed to take appropriate action; and
c. had been given previous warnings.
[71] It acknowledged that given the reason for dismissal related to Mr O’Brien’s conduct, the Commission must determine whether the alleged conduct took place and what it involved.
[72] The allegation made against Mr O’Brien that led to his dismissal was that while he was the station officer on duty, he witnessed a workplace incident between Mr Lenehan and Mr Thaler, and that he did not address the Incident during or after it occurred. Following the investigation into the Incident, the Show Cause notice stated that the investigator had concluded Mr O’Brien had “acted inappropriately and in an unacceptable manner by not managing or reporting a serious incident that occurred on 10th October 2020 at HMAS Creswell site”.
[73] In later correspondence between Mr O’Brien and Ventia, Ventia stated that Mr O’Brien failed in his position of station officer to intervene in the Incident, failed to address the Incident, and failed in his duty by not reporting appropriately. The failure to report also included an allegation that he failed to report the matter to Mr Pakes. These matters were said to constitute serious misconduct.
[74] The dismissal letter confirmed that Mr O’Brien’s dismissal was because he had engaged in serious misconduct arising from breaches of Ventia’s Code of Conduct, House Rules (Serious Misconduct) and incident reporting obligations.
Was this a reportable event?
[75] I am not satisfied the Incident was a reportable event as defined by Ventia’s policies, triggering an obligation on Mr O’Brien to make a formal report.
[76] An event is defined in the Health and Safety policy as “an unplanned or uncontrolled event resulting in actual or potential injury …”.
[77] On Mr Thaler’s evidence, an obligation to report arose when the matter involved an accident, near miss or injury. He also gave evidence that he was not upset at the time of the Incident. Even if Mr Thaler did appear to Mr O’Brien to be angry and upset, it does not automatically follow that the Incident became a reportable event.
[78] The evidence of Mr Wetherill, which I accept, is that he was in the kitchen during the Incident and did not identify anything that could reasonably constitute a “verbal assault”. Similarly, the statement written by Mr Rigone immediately after the Incident does not identify any actual or potential injury arising from the Incident.
[79] Mr Thaler’s discussion at the time with Mr O’Brien was to the effect that Mr O’Brien should deal with Mr Lenehan. Mr Thaler did not report to Mr O’Brien that he had been injured. In my view there is no evidence to support a finding that a reasonable person would interpret what Mr Thaler did say to Mr O’Brien as reporting an actual or potential injury.
[80] If I am wrong about this, and the Incident was a reportable event, I am satisfied that Mr O’Brien was not aware at the time of the Incident that Mr Thaler considered he had been verbally assaulted. Clearly, for Mr O’Brien to be obliged to report the Incident, Mr O’Brien needed to know about it. Critically, Mr O’Brien did not witness the Incident. He was in another room with Mr Rigoni at the time and became aware that something occurred when Mr Thaler asked him to deal with Mr Lenehan.
[81] It is not in dispute that Mr Thaler made no statement alleging he had been verbally assaulted to Mr O’Brien at the time. Further, the evidence of Messrs Rigone and Wetherell, which I accept, does not establish that Mr Thaler was verbally assaulted or that the Incident was a reportable event.
[82] Mr Thaler, who occupied the same rank as Mr O’Brien, was also perfectly capable of reporting the Incident. I accept the submission made on behalf of Mr O’Brien that if Mr Thaler considered the Incident to be a serious health and safety matter, the obligation to report fell just as squarely with him, particularly where he had not informed Mr O’Brien that he considered he had been verbally assaulted.
Did Mr O’Brien deal with the Incident?
[83] In any event, Mr O’Brien did take reasonable steps to “deal with” the Incident.
[84] There is no dispute that Mr Lenehan called Mr Pakes shortly after the Incident, and this was at the request of Mr O’Brien. In my view, whether Mr O’Brien announced himself to Mr Pakes during this telephone call or not is not of significant importance. The important factor is that Mr Pakes was advised of what had occurred in a timely manner, and it was Mr O’Brien who had ensured this was done. However, to resolve this factual dispute, I consider it more likely than not that Mr O’Brien did participate in the call. This is primarily because of Mr Rigoni’s evidence (in the form of the written statement he made shortly after the Incident) that he was aware Mr O’Brien attempted to contact Mr Pakes but was unsure if he was successful.
[85] There is no dispute that Mr O’Brien asked the other employees who were in the vicinity at the time to write an account of what they observed. There is also no dispute that Mr O’Brien counselled Mr Lenehan and asked him to apologise to Mr Thaler.
[86] Mr O’Brien was not rostered to work again after the day of the Incident until 15 October. I accept his evidence that he would have continued to deal with the matter when he returned to work, however he was stood down on 14 October.
Serious misconduct?
[87] Even if I were to accept Ventia’s case in full (which I do not), I consider that dismissal was a grossly disproportionate response, as the conduct could not on any reasonable view reach the threshold of serious misconduct.
[88] The Incident did not involve Mr O’Brien himself engaging in any conduct that could be considered bullying or harassment. He did not directly witness the Incident. Mr O’Brien was criticised for not intervening during the Incident, but to do so he must have known about it at the relevant time. It is clear he did not.
[89] Mr Thaler did not inform him that he felt he had been the subject of a verbal assault. Mr Thaler, who also has responsibility to report matters he felt constituted health and safety breaches, did not report the Incident until 3 days later, notwithstanding he was rostered to work during that period.
[90] Mr O’Brien did take reasonable steps to deal with the Incident. At most, assuming there was an obligation on Mr O’Brien to report the Incident, he was beyond the specified timeframes for a few of the steps, which is explicable by the fact that he was not working for four days after the Incident.
[91] The show cause letter went further than the findings of the investigation report and asserted breaches of the house rules, serious misconduct pertaining to intimidating, bullying, harassing other employees, and assaulting either verbally or physically other employees. I agree with Mr O’Brien that there is no basis to allege serious misconduct against him with respect to these matters and this was acknowledged by Ms Smith’s evidence
[92] Overall, there is simply no evidence to support a conclusion that he engaged in serious misconduct, and so I am not satisfied there was a valid reason for Mr O’Brien’s dismissal.
[93] Given these findings, the existence or otherwise of any previous warnings in the context of whether there was a valid reason is irrelevant.
Notification of the valid reason and opportunity to respond - s.387(b) and (c)
[94] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,9 in explicit terms10 and in plain and clear terms.11 In Crozier v Palazzo Corporation Pty Ltd12 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”13
[95] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied 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.14 This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.15
[96] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr O’Brien before his dismissal was effected.
[97] On balance, and despite some significant flaws in the process, I am satisfied that Mr O’Brien was notified of a reason for his dismissal and was given an opportunity to respond. The extensive correspondence between the parties, including correspondence between Ventia and Mr O’Brien’s union representatives, supports this view.
[98] However, the process and correspondence outlined above shows it was only with repeated requests that Mr O’Brien was given some basic level of detail about the nature of the allegations made against him. Further, some justifiable criticism can be directed to the investigation process, in which Mr O’Brien was required to participate despite being unfit for work and being required to answer the investigators questions while driving his car.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[99] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[100] Mr O’Brien was not refused a support person.
Warnings regarding unsatisfactory performance - s.387(e)
[101] A warning for the purposes of s.387(e) must clearly identify:
a. the areas of deficiency in the employee’s performance;
b. the assistance or training that might be provided;
c. the standards required; and
d. a reasonable timeframe within which the employee is required to meet such standards.16
[102] The warning must also “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”17
[103] There is a factual contest as to whether Mr O’Brien was the subject of any previous warnings. While I am satisfied and find that Mr O’Brien was spoken to on 18 June 2020, I am not satisfied that he received the warning letter dated 14 August 2020. This is in part because the evidence is clear that Mr O’Brien was never placed on a formal performance management plan, which would have been expected if there were serious and genuine concerns about his performance. I am therefore also not satisfied that Mr O’Brien was advised that his employment was at risk.
[104] In any event, I accept the submissions of Mr O’Brien that for any previous warnings to be a relevant consideration, I must first find that he was obliged to take certain action in relation to the Incident and that he failed to take such action. Given my findings above, I am not satisfied that any previous warnings were directly relevant to the Incident.
Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))
[105] I am satisfied that the size of Ventia did not impact on the procedures followed by it in effecting the dismissal.
Other relevant matters - s.387(h)
[106] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[107] I am not satisfied that there are other matters that need to be considered under this section.
Conclusion as to unfairness
[108] Having weight up all of the matters requiring consideration under s.387, I find that the dismissal of Mr O’Brien was harsh, unjust and unreasonable.
[109] I now turn to the appropriate remedy.
Remedy
[110] Having found that Mr O’Brien was protected from unfair dismissal, and that his dismissal was unfair, it is necessary to consider what, if any, remedy should be granted to him. Mr O’Brien seeks the remedy of reinstatement.
[111] I am not satisfied that there is any good reason not to reinstate Mr O’Brien to his former position given it is the primary remedy for unfair dismissal.
[112] Ventia focussed in its evidence and submissions on the contention that reinstatement was inappropriate because there was now a lack of trust, which is required between firefighters. While I am satisfied that trust is required among firefighters, I am not satisfied that there is any evidentiary basis for a conclusion that such trust no longer exists between Mr O’Brien and other firefighters located at Creswell or HMAS Albatross.
[113] Mr Thaler did not give any evidence to the effect that he did not trust Mr O’Brien or that working with him would give rise to any dangerous situation, nor did any other firefighters.
[114] Further, given there was no valid reason for Mr O’Brien’s dismissal, there is no basis to find that Ventia would not be able to trust Mr O’Brien going forward.
[115] Despite the submissions of Ventia to the contrary, there is no evidence that Mr O’Brien would pose a risk to the safety of others in the workplace.
[116] Accordingly, I find that the reinstatement of Mr O’Brien is appropriate in all the circumstances.
[117] Section 391(2) of the Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to maintain the following:
a. the continuity of the Applicant’s employment;
b. the period of the Applicant’s continuous service with the employer or, if applicable, the associated entity.
[118] In all the circumstances, I consider it appropriate to make an order to maintain Mr O’Brien’s continuity of employment and period of continuous service with Ventia. There is no reason not to do so.
[119] Section 391(3) of the Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to cause the employer to pay to the Applicant an amount for the remuneration lost, or likely to have been lost, by the Applicant because of the dismissal.
[120] Section 391(4) of the Act provides that, in determining an amount for the purposes of such an order, the Commission must take into account:
a. the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
b. the amount of any remuneration reasonably likely to be so earned by the Applicant during the period between the making of the order for reinstatement and the actual reinstatement.
[121] An order to restore lost pay does not necessarily follow an order for reinstatement. The Commission may only make an order if it considers it appropriate to do so and only make an order that the Commission considers appropriate.18 Where an employee has engaged in misconduct, the Commission may refuse to make any order to restore lost pay.19
[122] I am satisfied that Mr O’Brien has lost wages since his dismissal. His evidence in this regard was unchallenged. He is likely to have lost further wages in the time since the hearing.
[123] I consider that I should make an order causing Ventia to pay lost remuneration to Mr O’Brien from the date of the dismissal until his reinstatement takes effect, less any remuneration earned during that period and less any payment in lieu of notice made to Mr O’Brien at the time of his dismissal.
[124] If there is a dispute about this amount, the parties have liberty to apply within 14 days from the date of this decision.
[125] Orders providing for reinstatement with continuity of employment and lost remuneration will be issued separately.
DEPUTY PRESIDENT
Appearances:
J McKenna of counselfor Andrew O’Brien.
D O’Sullivan of counsel for Ventia Pty Limited.
Hearing details:
2021.
By video:
April 20, 21, 22, 23;
May 25, 26.
Printed by authority of the Commonwealth Government Printer
<PR733812>
1 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
2 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].
3 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
4 Ibid.
5 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
6 Edwards v Giudice (1999) 94 FCR 561.
7 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].
8 Miller v University of New South Wales (2003) 132 FCR 147.
9 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
10 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
11 Previsic v Australian Quarantine Inspection Services Print Q3730.
12 (2000) 98 IR 137.
13 Ibid at 151.
14 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
15 RMIT v Asher (2010) 194 IR 1, 14-15.
16 McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].
17 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
18 Aurora Energy Pty Ltd v Davison PR902108 (AIRCFB, Watson SDP, Williams SDP, Holmes C, 8 March 2001), [25].
19 See, eg, Regional Express Holdings Ltd v Richards[2010] FWAFB 8753, [29].
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