Christopher Cullen v RACQ Operations Pty Limited - [2025] FWC 612

[2025] FWC 612

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Christopher Cullen
v

RACQ Operations Pty Limited

(U2024/13440)

DEPUTY PRESIDENT LAKE

BRISBANE, 9 MAY 2025

Application for an unfair dismissal remedy – serious misconduct – dismissal not unfair – application dismissed

Mr Christopher Cullen (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that he was unfairly dismissed from his employment with RACQ Operations Pty Limited (the Respondent).

A conciliation was held on 16 January 2025 and the matter was not resolved. The matter was listed for an in-person hearing on 20 February 2025. The Applicant was represented by his friend, Mr Gary Symons. The Respondent was represented by its General Counsel, Mr Matthew Payten.

Section 396 of the Act requires satisfaction of four matters before considering the merits. I am satisfied that the Applicant made his application within the 21-day period required by s.394(2) of the Act, earned less than the high-income threshold, is a person protected from unfair dismissal, that his dismissal was not a case of genuine redundancy, and the Small Business Fair Dismissal Code is not applicable as the Respondent has more than 15 employees.

Background

The Applicant was employed with the Respondent from March 2023 until his termination in October 2024. His role was a vehicle recovery officer (VRO) performing roadside assistance.

Incident on 19 September 2024

The Respondent terminated the Applicant following an investigation of an incident which involved a physical altercation between the Applicant and a tow truck driver (the incident).

The incident was captured by two cameras on an RACQ truck. The Applicant’s telephone call during the incident was also recorded. The original footage, as well as the audio recording of the phone call, was provided to the Commission through an order for production requested by the Applicant. I have reviewed the original footage and I have listened to the audio of the phone call.

The incident unfolded on Thursday 19 September 2024 at approximately 8.00 am. The Applicant had been called to a roadside event. The reason for the member call out was stated to be a flat tyre. The Applicant began to mark off the area around the car with cones and began attaching the vehicle to the cable to recover the vehicle onto the RACQ recovery truck.

During this time, tow truck operators with recovery trucks arrived at the scene.

One of the tow truck drivers spoke to the Applicant and said that the vehicle had clearly had an accident and therefore was off limits to the RACQ. Relevantly, RACQ VROs are only authorised to tow vehicles that have had breakdowns and not vehicles which have been in accidents.[1] This is because RACQ is not licenced to conduct “regulated towing” within the meaning of the Tow Truck Act 2023 (Qld).[2]

The tow truck driver and the Applicant engaged in a conversation.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 612
Decision Date: 9 MAY 2025

CaseChat Overview and Summary

The applicant, Mr Christopher Cullen, brought an application to the Fair Work Commission (FWC) seeking a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth). The applicant was employed as a vehicle recovery officer by the respondent, RACQ Operations Pty Limited, from March 2023 until his dismissal in October 2024. The applicant was dismissed following an incident on 19 September 2024 when the applicant and a tow truck driver engaged in a physical altercation. The incident was captured on camera by the respondent. The applicant denies he initiated the physical altercation. The applicant argues that he was concerned for the safety of the tow truck driver and the RACQ member and therefore attempted to prevent the tow truck driver from accessing the vehicle. The applicant further argues that his actions were consistent with his training and that the dismissal was unfair.

The FWC was required to determine whether the dismissal was harsh, unjust or unreasonable. The FWC found that the dismissal was not harsh, unjust or unreasonable. The FWC found that the applicant’s actions were inconsistent with his training and his conduct amounted to serious misconduct under the Fair Work Regulations 2009. The applicant was given several opportunities to respond to the allegations against him. The applicant was dishonest during the disciplinary process and has shown little insight into his behaviour. The FWC found that the dismissal was for a valid reason and that the dismissal process was procedurally fair. The application was dismissed.

Orders