Courtney v Coal Gas Camps Pty Ltd

[2013] FWC 7609

[2013] FWC 7609

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Tom Courtney
v
Coal Gas Camps Pty Ltd
(U2013/6104)

DEPUTY PRESIDENT ASBURY BRISBANE, 30 SEPTEMBER 2013

Application for unfair dismissal remedy - Arbitration.

BACKGROUND

[1] Tom Courtney applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Coal Gas Camps Pty Ltd (CGC). Mr Courtney was dismissed on 13 January 2013 for serious misconduct.

[2] CGC is in the business of supplying camp accommodation for remote worksites and associated services, including facilities and camp maintenance. Mr Courtney commenced employment with CGC on or about 1 January 2012 as a casual maintenance worker. Mr Courtney worked on a swing roster comprising two weeks on and two weeks off, and it is not in dispute that Mr Courtney was employed on a regular and systematic basis.

[3] Mr Courtney also performed work on a casual basis from time to time for another entity - Traymark Industrial Caravans Pty Ltd - and prior to his employment with CGC was a subcontractor to Traymark. One of the three Directors of CGC, Mr Mark Gabriel is also the Director of Traymark. There are other Directors of CGC who are also involved with various entities that Mr Courtney performed work for from time to time.

[4] Mr Courtney asserts in his application that the total period of his employment is two and a-half years because he was employed by Traymark from 10 August 2010 and his job was moved over to CGC on 1 January 2012. CGC does not dispute that Mr Courtney’s service with Traymark and CGC is continuous. On the basis of this concession, and that CGC was legally represented at the commencement of these proceedings, I have assumed that the other entities referred to in the evidence are related entities and that CGC is not a small business.

[5] Mr Courtney was dismissed following a series of events between 10 and 13 January 2013, related to repairs to toilets at CGC’s Camp 121 at Moranbah. CGC contends that Mr Courtney refused to carry out a reasonable and lawful instruction in relation to the repairs, that was consistent with the terms of his employment. CGC further contends that Mr Courtney verbally abused his immediate supervisor and defamed the business of CGC by telling untruths that were damaging to CGC’s reputation. CGC also maintains that Mr Courtney has previously engaged in aggressive and abusive behaviour to colleagues, supervisors, managers and staff of clients.

[6] Mr Courtney contends that he did not comply with the direction with respect to repairing the toilets because he had identified a serious safety issue which prevented him from doing the work as instructed. Mr Courtney further contends that he was awaiting instructions from a Director of CGC with respect to the issues he had raised. Mr Courtney submits that he raised a genuine safety issue and was dismissed for doing so. Mr Courtney also submits that he has previously raised safety issues and these have been presented as behavioural issues.

[7] Mr Courtney conducted the case on his own behalf. CGC initially sought to be legally represented, but withdrew that request and the case for the Company was conducted by its Operations Manager Mr Fraser.

[8] Mr Courtney provided a number of witness statements and supplementary statements. His original witness statement was made on 21 April 2013. A second witness statement was tendered at the hearing after Mr Courtney received telephone records produced by CGC pursuant to an Order of the Commission under s.590(2)(c) of the Act. The second witness statement contained assertions that he had made certain calls reporting the safety issue to his supervisor and manager. There was no reference to a number of those calls in his initial witness statement and the second statement also contained details that were not included in his original statement. Mr Courtney claimed that he could not remember the telephone calls when he made his first statement, but did recall them after he saw his telephone records. Mr Courtney also tendered statements he made to the Department of Natural Resources and Mines about the incident that lead to his dismissal. It is necessary to consider the various statements made by Mr Courtney.

[9] Evidence for CGC was given by:

● Donna Jamieson - Temporary Operations Manager in 2012;
● Trevor Henderson - Remote Camp Specialist - Trehen Camp Management Services Pty Ltd;
● Dianne Nairne - Administrative Officer;
● Brett Douglas Fraser - Operations Manager;
● Lance Sisson Maintenance/Service Manager;
● Mark Anthony Gabriel - Director of CGC;
● David Cooper - Former Operations Manager of CGC.

[10] The issues for determination are:

● Whether Mr Courtney engaged in serious misconduct by refusing to follow a lawful direction to make repairs to toilets and making untruthful statements about CGC;
● Whether Mr Courtney had reasonable grounds to refuse to comply with the direction on the basis of workplace health and safety issues; and
● Whether Mr Courtney’s dismissal was unfair on the basis that it was harsh, unjust or unreasonable.

Legislation

[11] The criteria that the Commission is required to consider in deciding whether a dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[12] The criteria direct attention to the reason for the dismissal, the process followed in effecting it and other matters particular to the employer or the employee, relevant to the consideration of whether the dismissal was unfair.

[13] The applicant for an unfair dismissal remedy bears the onus of establishing that the dismissal is unfair. However, the starting point is whether there was a valid reason for the dismissal, which necessarily focuses attention on the validity of the reasons given by the employer. In this sense the employer bears the onus of establishing that there was a valid reason for a dismissal. 1

[14] If the reason for the dismissal is based on the conduct of the employee, the Commission must determine that the conduct occurred. 2 A valid reason for dismissal is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”3 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts4, and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.5

EVIDENCE

Mr Courtney’s work history

[15] There is evidence that Mr Courtney has a somewhat chequered work history with CGC and other businesses operated by its Directors, and that Mr Courtney worked for those businesses as both an employee and a sub-contractor. Evidence was given of a number of altercations between Mr Courtney and work colleagues, supervisors and contractors, and complaints made about Mr Courtney in relation to these matters, including:

● August 2011 - altercation with Mr Cooper during which Mr Courtney threatened to hit Mr Cooper over the head with a laptop computer, and had a heated discussion with Mr Cooper in front of a client representative and other contractors, after which Mr Cooper refused to work with Mr Courtney. 6
● May 2012 - verbal altercation with Mr Gabriel during which Mr Courtney told him he could “fucking stick your job up your arse,” and which was overheard by Mr Henderson. 7
● 17 December 2012 - written complaint from an employee of Trehen Camp Management Services Pty Ltd, subcontractor to CGC for provision of catering services, that a number of employees in the field had raised issues with the manner in which Mr Courtney dealt with them including swearing at staff and telling them that Trehen would lose CGC contracts. 8

[16] There was also evidence that Mr Courtney was spoken to by various managers of CGC in relation to these matters. Mr Gabriel said that he had a discussion with Mr Courtney about the altercation with Mr Cooper, during which he told Mr Courtney that he had jeopardised CGC’s contract with the client representative and potentially caused a lot of damage. Mr Gabriel also said that he gave an instruction that Mr Courtney was to be told that his services would not be accepted as often as they had been if he did not improve his behaviour. Mr Courtney apologised for the altercation, but it was also necessary for Mr Gabriel to change the internal reporting structure as Mr Cooper refused to work with Mr Courtney.

[17] Under cross-examination Mr Gabriel agreed that Mr Courtney was not given a formal warning about the altercation with Mr Cooper but said that Mr Courtney was not offered work for some time it occurred and a car that he had been allocated was taken away. Mr Gabriel also maintained that regardless of the difficult camp move that gave rise to the altercation, Mr Cooper had gone there to fix the problem and had lost credibility with people in the field as a result of the attack Mr Courtney made on him.

[18] Mr Cooper was cross-examined about this incident and the camp move which gave rise to it and maintained that Mr Courtney had physically and verbally threatened him. Mr Cooper also maintained that after this incident Mr Courtney no longer reported to him but was managed through Mr Troy Gabriel a partner of Mr Mark Gabriel.

[19] Ms Jamieson and Mr Fraser gave evidence of Mr Courtney raising allegations about safety issues, but refusing to provide reports about those issues in the form required by CGC’s Health Safety and Environment Policy. Ms Jamieson gave evidence about Mr Courtney’s persistent failure to follow verbal direction in relation to the requirements associated with is use of a company provided credit card and failure to attend for medical tests necessary to undertake an induction. Mr Courtney provided evidence in response to these matters. It does not appear that these matters played any part in the decision to dismiss Mr Courtney. However, they are illustrative of his poor relationship with Ms Jamieson.

Reporting structures

[20] Mr Fraser commenced his role as Operations Manager on 26 November 2012. Mr Gabriel said that Mr Fraser was brought in to run the business and to put in structures and procedures. Mr Gabriel also said that he believed that unlike Mr Cooper, Mr Fraser was capable of “handling” Mr Courtney.

[21] Mr Fraser said that in the first months of employment he had a number of interactions with Mr Courtney during which Mr Courtney was aggressive and argumentative. Mr Fraser said at his first meeting with Mr Courtney, he informed him of his new role and the direction the Company would be taking and Mr Courtney stated: “Don’t you fucking tell me which way the Company is going. I’ve been here longer than you, you don’t know a thing.” Mr Fraser said he chose not to respond as he had only just met Mr Courtney.

[22] Under cross-examination, Mr Fraser said that he did not issue a warning on that occasion because Mr Courtney had just returned from the field and Mr Fraser understood the frustrations of being in the field. Mr Fraser said he had subsequently spoken to Mr Courtney about the need to respect colleagues and to behave appropriately.

[23] Mr Fraser also had a discussion with Mr Courtney about a verbal altercation between Mr Courtney and a camp manager employed Trehen after a complaint was made by the camp manager.

[24] In January 2013, Mr Fraser had a discussion with Mr Courtney in relation to Mr Courtney seeking a pay rise and Mr Courtney then sought to pursue this matter through the Directors of CGC. Mr Fraser said that he understood that Mr Courtney was told that all lines of communication were to go through Mr Fraser as Operations Manager. Mr Fraser also held a pre-maintenance meeting on 7 January 2013 attended by Mr Courtney at which he informed attendees that all communications and issues from the field were to go through the CGC office and Mr Fraser and that Directors were not to be contacted about such matters. Mr Fraser attached a copy of the minutes of this meeting to his witness statement. 9

[25] Mr Gabriel confirmed that when Mr Courtney asked him for a pay rise, he told Mr Courtney that the Directors were trying to streamline communication lines and that everything related to CGC had to go through appropriate channels. Mr Gabriel further told Mr Courtney that if he had any questions or issues, he must go through Mr Fraser as the Operations Manager of CGC as the Directors have their own businesses to run and want Mr Fraser to run CGC.

The Alleged Safety Incident

[26] On 8 January 2013 Mr Fraser telephoned Mr Courtney and instructed him to attend the CGC 121 Camp Site for the purpose of fixing blocked toilets. There was also an issue with the batteries powering the toilets involving a drop in voltage. The 121 Camp is on an Arrow Energy Site and occupied by a crew employed by Savanna Energy. The Camp comprises semi trailers with two bedrooms and a centre bathroom and there are a total of two bathrooms and four bedrooms per trailer. The trailers are fitted with 12 volt electrical toilets that run from a battery that is located in a compartment under a bed.

[27] Mr Fraser instructed Mr Courtney to fit a second battery to the electric toilets and said that this was a “P1” request which meant that it was high priority, requiring attention as soon as reasonably practicable and the standard CGC policy is that such requests are to be responded to within 24 hours.

[28] Mr Courtney collected the batteries but was required to buy additional parts because the electrician he obtained the batteries from did not have controllers for them. The fact that the controllers were not provided to Mr Courtney appears to have had no impact on the events that lead to his dismissal, other than it may have caused Mr Courtney some annoyance. Mr Courtney arrived at the 121 Camp site late in the afternoon of 9 January 2013 and commenced working on the toilets on the morning of 10 January 2013.

[29] In his original statement, Mr Courtney said that on the morning of 10 January he was working in trailer TC4 Room 24 and the rear bathroom had a toilet that was not operating properly, which Mr Courtney had been asked to repair. Upon inspection Mr Courtney found damaged cables, a burnt out fuse holder and two blown fuses in the battery charger. Mr Courtney replaced the fuse holder and the damaged fuses and put the battery on “charge”.

[30] Mr Courtney went on in that statement to say that late in the afternoon he had a serious battery incident where a battery in a concealed compartment under a bed in Room 24 was emitting: “a Highly Explosive Toxic Gas containing Hydrogen and Oxygen and Sulphuric Acid Mist,” which filled the “occupied” room. On inspecting the battery, Mr Courtney noted that it was too hot to touch, “bludging (sic) looking like it was ready to burst”. Mr Courtney said he cleared the rooms, isolated the power to the trailer and left the doors open for the room to air.

[31] In his second statement, Mr Courtney said that at 5.00 pm on 10 January 2013 he checked the controller for the battery in Room 24 and found that the voltage was “alarmingly high at 15.75 volts”. Mr Courtney also said that the worker residing in that room had just gotten up and Mr Courtney noted a strong pungent sulphur smell. Mr Courtney said that he told the worker to evacuate the room as it was “full of extremely dangerous hydrogen gas like in Hindenburg accident it was highly explosive.” When the worker left the room, Mr Courtney checked the room next door and on finding it empty, isolated the power to the trailer and lifted the under bed compartment.

[32] Mr Courtney also noted in the second statement that there was a strong smell of sulphuric acid and that the charger was set to “calcium”. In addition to opening the room and airing it, Mr Courtney said in his second statement, that he blocked off the entry to the rooms by securing the stairway.

[33] Mr Courtney’s first statement makes no mention of any telephone calls on 10 January 2013 for the purpose of reporting the incident. In his second statement, Mr Courtney said that he telephoned Mr Sisson at 5.57 pm on 10 January and “reported the incident”. In a diary entry for that date tendered by Mr Courtney in these proceedings, he states that he telephoned Mr Fraser at 5.57 pm. In his oral evidence to the Commission Mr Courtney said that he was mistaken and realised once he saw the telephone records relating to his mobile telephone, that he spoke to Mr Sisson at 5.57 pm on 10 January. Those records indicate that Mr Courtney did telephone Mr Sisson at that time.

[34] Mr Courtney said in his first witness statement that he could not sleep on the night of 10 January 2013 as he had previously raised issues with Mr Gabriel about his discomfort with the use of batteries under beds. Mr Courtney said that he got up and prepared an email which he sent to Mr Gabriel at 12.06 am on 11 January 2013. That email was appended to Mr Gabriel’s witness statement. 10 The opening paragraph in the email is as follows:

“Hi Mark I have done some thinking and some research into the voltage drop and have come up with some money saving ideas for you. I have been told to add a second battery to the front room for the front toilet and fit a battery charger that can charge both batteries but after some reading I have come up with some ideas.”

[35] The email goes on to detail some technical matters associated with installing new controllers and reconfiguring existing wiring and to compare the potential results of that proposal with adding a second battery and charger “like I have been asked to do” and concludes with: “something to think about, let me know what you think...regards Tom”. There is no mention in the email of the battery bulging, overheating, emitting gas or any other health and safety matter associated with batteries or their installation.

[36] In his second witness statement, Mr Courtney said that he started work at 6.30 am on the morning of Friday 11 January 2013 and observed that the gas smell had cleared but the battery was still bulging. Mr Courtney disconnected the battery and replaced it with another one, remounted the charger lower on the wall, hooked the battery up and tested it, noting that it tested ok.

[37] Mr Courtney also said in his second witness statement that he telephoned Mr Fraser at 7.44 am on 11 January 2013 after leaving the room where the damaged battery was located, and reported what he had done. Mr Courtney maintained that Mr Fraser told him he wanted to keep it “in house” and asked who else knew. Mr Courtney further claimed that he told Mr Fraser that the Trehen Camp Manager knew but the Savanna Health and Safety Officer was not on site. There is no mention of this telephone call in the first witness statement. Mr Courtney also said that the Savanna Safety Manager was not present at the relevant time.

[38] Mr Courtney said in his first statement that on Saturday 12 January 2013, he tested the damaged battery and it tested ok. This confused Mr Courtney and caused him to do some research on the internet and form the view that what had occurred was “Battery Thermal Runaway”. Mr Courtney claimed in his first statement that he had kept in touch with Mr Fraser and a CGC electrician named Sean and informed them of his findings. According to Mr Courtney, Mr Fraser did not get the “serious gravity” of what occurred and kept asking if he had the second batteries installed yet. Mr Courtney also said that he was trying to buy some time with Mr Fraser, so that he could discuss the matter with Mr Gabriel on Monday.

[39] Mr Courtney said in his first statement that he spoke to Mr Fraser on Sunday about the battery problem, and in the afternoon received a text message from Mr Fraser asking whether the second batteries had been installed. Mr Courtney responded by text message saying:

“Stickers are on but not batteries yet will start this arvo as rooms are 6 to 6 so getting access is a problem”.

[40] Mr Fraser sent a further text message informing Mr Courtney that he needed the batteries installed and that there were other camps that he needed to send Mr Courtney to. Mr Courtney said that after receiving this text message he was angry, and telephoned Mr Fraser, telling him that he was not fitting the batteries because it was unsafe to do so. Mr Courtney also said that he told Mr Fraser it was his right to stop working on something that he thought was unsafe, and that they needed to understand what had happened.

[41] When Mr Fraser again told Mr Courtney to fit the batteries, Mr Courtney told him to “fucken back off”. Mr Courtney said that he told Mr Fraser this because he was waiting to hear from Mr Gabriel, and Mr Fraser did not understand, or want to understand, what had happened. Mr Fraser responded by telling Mr Courtney not to talk to him like that, and that he would never work for CGC again.

[42] In his second statement, Mr Courtney said that he telephoned Mr Fraser at 8.27 am on Saturday 12 January 2013 and told him that fitting the extra batteries was not sitting well with him after what had happened. Mr Fraser responded by telling him to fit the batteries. Mr Courtney also said that after he tested the battery he telephoned Mr Fraser at 2.01 pm and told him that he was now really worried because the faulty battery had tested ok, and Mr Fraser again told him to fit the batteries.

[43] Mr Courtney said in his second statement that he had a further discussion with Mr Fraser on Sunday 13 January 2013 and again said he was not keen to install the batteries on safety grounds. Mr Courtney said that he tried to explain what he had learned from his research on the internet, but Mr Fraser did not want to hear any excuses.

[44] Mr Fraser and Mr Sisson disputed the assertion that Mr Courtney reported any concerns about the battery in any of the telephone discussions. Mr Gabriel said that he did not respond to the email sent at 12.06 am on 11 January 2013, because he viewed it as a maintenance matter that Mr Courtney should have raised with Mr Fraser, as he had been instructed to do. Mr Gabriel also said that at no time prior to Mr Courtney’s dismissal was he aware of or informed about any safety concern that Mr Courtney may have held. In response to a question from the Commission about whether there was anything in Mr Courtney’s email of 11 January 2013 that caused him concern, Mr Gabriel said:

“Can I - I look at every email. I'm the business - I own the business. I've got an interest in it. I would have flicked that email to the relevant people, so I didn't see anything in there that suggested that we had an issue. I've been in business for 30 years and if there was something dangerous, I would jump on that so quickly, it just wouldn't exist. Things happen all the time when you're in business. I'm building really big, heavy things that run across the highway on really rough roads. I would have jumped on that as quick - I would have gone to Brett Fraser, who's running the joint, and said, "Mate, you need to address this straightaway," instead I got a note on how to save me some money. It was just like conspiracy sort of stuff. I got just - and I got a lot of this sort of stuff from Tom. Just always an idea on how to do things better and - - - ”

[45] Mr Sisson said that he had three telephone discussions with Mr Courtney on 10 January 2013 in relation to a battery charger incorrectly set; a pinched wire under a unit; and some blown fuses. Mr Sisson said that Mr Courtney told him that he had replaced the fuses and was going to replace relays in the toilet control panel. Mr Sisson said that at no time during the three telephone conversations did Mr Courtney tell him that he had encountered a serious safety incident involving a bulging battery and highly explosive gas. Mr Sisson also said that Mr Courtney did not report this incident or state that he would not install a second battery under the bed because of safety concerns.

[46] Mr Fraser said that during the telephone call at 11.34 am on 10 January 2013, Mr Courtney spoke about blocked toilets and what he was planning to do to unblock them. Mr Fraser said that the telephone call from Mr Courtney on 13 January 2013 was in relation to the maintenance of washing machines on site. On completing that call, Mr Fraser said that he realised Mr Courtney had not told him that the second batteries had been installed in toilets, and he then sent a text message to Mr Courtney asking whether this had been done. The response to that message from Mr Courtney made no mention of safety concerns and simply indicated that Mr Courtney had difficulty accessing rooms. Mr Fraser sent a further text message, resulting in the telephone call from Mr Courtney on 13 January 2013.

The dismissal

[47] According to Mr Fraser, Mr Courtney told him during that telephone call to “Fucking back off! You have no fucking idea!” Mr Fraser said that he told Mr Courtney that he should pack his bags and should not speak to anyone like that. Mr Fraser also told Mr Courtney he should come home and that he would not be working for CGC again. In response, Mr Courtney hung up the phone.

[48] Mr Fraser said that at no time did Mr Courtney state that he was unwilling to install the batteries due to a safety concern, or that he thought it was unsafe to do so. Mr Fraser also said that Mr Courtney did not state that he was waiting for a response from Mr Gabriel to an email. Mr Fraser maintained under cross-examination that Mr Courtney did not report his concerns about the battery in any of the telephone discussions they had in relation to the installation of the additional batteries and why it had not occurred.

[49] Mr Fraser said that in his view, Mr Courtney’s conduct in verbally abusing him and then hanging up amounted to gross misconduct. Mr Fraser communicated with the Directors of CGC on 14 January 2013 informing them that Mr Courtney’s employment had been terminated with effect from 13 January 2013 and said that this was Mr Courtney’s last working day.

[50] The proposition was put to Mr Gabriel under cross-examination that Mr Courtney was a hard working employee. Mr Gabriel said that Mr Courtney constantly thought that he knew more than qualified employees including plumbers and electricians and that he had complaints coming from all directions about Mr Courtney’s behaviour. Mr Fraser maintained under cross-examination that Mr Courtney was not simply dismissed for swearing or for reporting a safety incident, but was dismissed for a consistently poor attitude and aggressive behaviour.

[51] In response to the proposition put to him in cross-examination that colourful language is used in the field, Mr Gabriel and Mr Courtney had the following exchange:

“Would you agree that colourful language can and does occur in the field and in the office?---Tom, I've never sworn in my fucking life. Of course. It's natural. It's the mining industry. We're all men down there - and women. They swear, too. Donna Jamieson, she'll give you a mouthful if you step on the wrong side of her. It's the nature of the industry and I don't think the word is that bad any more, personally.

If I was to say to you to fucking back off, would that concern you greatly?---See, that's a different thing. I take that offensively. I'd rather you, "Oh, fuck off," that's different, but, "Fucking back off," totally different, mate. It's the way you can put things across. I think there's a - you can say "fuck" a hundred different times and it has a hundred different meanings. You know that.

Yes, I do?---I honestly believe you were aggressive towards Brett and you were cutting him out of the loop for a reason, I don't know why.

Cutting him out of the loop?---Well, you said it in your own words, Tom. You cut him out of the loop or kept him out of the loop.”

[52] Mr Courtney said that upon being informed by Mr Fraser that his employment was terminated, he telephoned a Director of CGC Mr Fendley, who told him that Mr Fraser could not do that, and he should disregard what Mr Fraser said. Mr Courtney said that Mr Fendley told him to do a job at Bluff near Emerald on his way home and he packed up at Camp 121, proceeded to Emerald and carried out that job which was associated with repairing an air-conditioning unit.

[53] Mr Fraser maintained that when Mr Courtney performed this work he was working for Fendley Consulting, and that although he was paid for the work by CGC, Fendley Consulting reimbursed CGC for the payment. Mr Fraser also agreed that Mr Courtney was driving a CGC vehicle while performing this work.

The investigation of Mr Courtney’s allegations about the battery incident

[54] Mr Courtney emailed a letter to the Directors of CGC and CGC’s Accountant on the morning of 15 January 2013 explaining what had happened at Moranbah. Mr Courtney states that the battery was swollen, gassing and too hot to touch, and that he was so concerned he “shut everything down and ran”. Mr Courtney also asserts in the emailed letter that he told Mr Fraser what happened and then goes on to state: “I had left Brett [Fraser] out of the loop about this as I was waiting an answer to my email from Mark and I wanted to talk to Shaun and Mark about this as I feel Brett still did not understand the problem.” The email concludes with Mr Courtney stating that he needs to raise an incident report about the matter and that the email is to explain how events came about from his side.

[55] Mr Fraser received a copy of Mr Courtney’s email of 15 January 2013, which was forwarded to him by CGC’s Accountant. Mr Fraser said that this was the first time he became aware of an alleged incident involving gas in a trailer and a bulging battery. Mr Fraser also said he did not know why Mr Courtney did not contact him directly about the matter. Mr Fraser confirmed that Mr Sisson had not been informed of these matters and that Mr Courtney had not completed an incident form.

[56] Mr Fraser also became aware that Mr Courtney had contacted Ms Nairne and Mr Fendley seeking an incident form. Mr Fraser was told by Mr Fendley that Mr Courtney alleged that he had refused to give him an incident form. Mr Fraser said that he was not going to play games and that Mr Courtney could come into the office and complete the form.

[57] Mr Courtney attended at the CGC office on 16 January 2013 and requested an incident form. Mr Fraser said that he gave Mr Courtney a form used for the purpose of reporting minor incidents on the basis that he had no factual evidence about the alleged incident.

[58] Mr Sisson said that while Mr Courtney was at CGC’s premises on 16 January 2013, he showed Mr Sisson the battery he had taken from the trailer. Mr Sisson said that he briefly inspected it and could see no evidence of expansion or stress on the outside of the battery.

[59] Mr Courtney contacted Mr Fendley on 19 January 2013 and asked for an urgent meeting to discuss his concerns. On 20 January 2013, Mr Fraser received an email from Mr Fendley stating that CGC needed to meet with Mr Courtney and that there were some serious safety issues to discuss.

[60] A meeting took place on 21 January 2013 attended by Mr Courtney, Mr Fraser, Mr Fendley, Mr Gabriel and Mr Sisson. An investigation known as a Taproot investigation was conducted by Mr Fraser at the meeting. Mr Courtney said that he was not happy that Mr Fraser conducted the Taproot investigation as it was an investigation into his own actions. Mr Courtney’s version of the meeting was that he asked for his job back and read a statement from his diary as follows:

“I was following my training as I believe that a serious safety incident was occurring or had occurred. I have completed an incident report upon return home which although is after the fact has allowed me to formally report the matter to CGC first rather than the onsite reporting channels of Trehen, Savanna or Arrow Energy.”

[61] Mr Fraser said that Mr Courtney produced an incomplete Incident Report dated 21 January 2013 and confirmed that:

● He had not taken photos in support of the alleged incident;
● He had not taken witness statements;
● The incident had not been reported to anyone on site; and
● There was no evidence other than Mr Courtney’s internet research.

[62] According to Mr Fraser, when Mr Courtney asked for his job back, Mr Gabriel told him that the dismissal would stand because of consistent failure to follow the lines of communication as directed, badmouthing the company to clients, field staff and contractors and grossly inappropriate behaviour in the field. Mr Gabriel said that Mr Fendley told Mr Courtney to “cool his heels” and to contact CGC in a few weeks to consider other options. Mr Gabriel also said that in the weeks that followed, he discovered that Mr Courtney had lodged a complaint about CGC with the Department of Natural Resources and Mines and had lodged an unfair dismissal application, and that this conduct was “hardly beneficial to his plea for reinstatement”.

[63] Mr Gabriel was asked whether he had considered reinstating Mr Courtney until he took his case to the Fair Work Commission and reported the battery incident to the Department of Natural Resources and Mines. Mr Gabriel said that these matters did not make any difference but he considered Mr Courtney had gone to extreme lengths to disrupt his business.

[64] Mr Courtney said that at the conclusion of the meeting on 21 January 2013, he asked for his job back and was told they would think it over, and get back to him by 25 January 2013. Mr Courtney later telephoned Mr Gabriel, Mr Fendley and Mr Fraser and was told by Mr Fraser that the decision to dismiss him stood.

[65] Mr Fraser tendered various policies and procedures in relation to the obligations of employees to report hazards:

● CGC’s “Incident Investigation Procedure requiring that incidents with a severe level of risk be reported to head office within an hour;
● Savanna Energy’s HSE Handbook requiring that all incidents including near misses are to be reported to a supervisor and the relevant supervisor of Arrow Energy;
● Arrow Energy’s HSE Handbook requiring that all incidents including near misses and safe acts are to be reported to a supervisor.

[66] These documents were also tendered by Mr Courtney and there was no indication in Mr Courtney’s evidence that he did not understand the reporting requirements set out in them. Mr Courtney did indicate that the camp safety officer was off site at the point he became concerned about the battery. There was no evidence that Mr Courtney attempted to report the incident to anyone on site.

[67] Mr Courtney made a report to the Department of Natural Resources and Mines on 4 February 2013. An Order requiring production of documents was issued by the Commission at the request of Mr Courtney to the Department, in relation to the file and records, including any risk assessment and remedial action, relating to the investigation carried out regarding the thermal runaway battery incident at CGC mobile camp 121 at Moranbah on 10 January 2013.

[68] The material produced in response to the notice was not properly tendered, however Mr Fraser was cross-examined about it. The documents indicate that in his report Mr Courtney made the following assertions:

● The new manager of CGC (presumably Mr Fraser) had walked into a big mess because the company had been running without a manager for some months since the previous manager (Mr Cooper) had left;
● Mr Courtney had reported to Mr Fraser and Mr Sisson that he had found a bulging battery that was too hot to touch and with a very strong acid smell;
● Mr Courtney believed that Mr Fraser did not understand the gravity of the situation;
● Mr Courtney was so worried about what happened that he sent an email to the owner of CGC Mr Mark Gabriel at 12.06 am and in doing so “went to the top as the new manager who had been in the job for about a month or so and never even seen a camp in operation and I didn’t think understood the problem was still telling me to install more batteries under beds”;
● Mr Courtney was sacked for a safety incident that the new manager and CGC’s HSE representative did not understand and were insisting that “I fit more batteries in a confined unvented space with battery chargers and fuses as ignition source under an unsuspecting workers bed”.

[69] The documents contain emails from Arrow Energy and Savanna representatives indicating that they were not aware of the incident until around 5 or 6 February 2013. The Report prepared by the Department states that a risk assessment conducted by CGC identified that the battery charger may not have been set to the correct charging profile, the temperature sensor was not installed and additional ventilation may be required. The findings are that:

● additional ventilation is required;
● the charger may have been set to calcium battery mode not lead acid which may have contributed to the thermal runaway;
● there does not appear to be a breach of Australian standards; and
● GCG should implement the recommendations of the risk assessment.

[70] The documents also include an email from Mr Fraser wherein Mr Fraser expresses doubt that the incident occurred at all and suggests that it has been reported by a disgruntled employee. Mr Fraser said that CGC went further than required in the risk assessment and removed the batteries altogether, replacing them with electrical power. Under cross-examination, Mr Fraser said that the documents referred to an incident that was reported by Mr Courtney and which was said to have “apparently” happened and did not establish that the incident as reported by Mr Courtney occurred.

[71] Mr Fraser maintained that all of the investigations did not find anything of any value and the camp was declared to be safe. Further Mr Fraser maintained that there was no finding made by the Department that there was a swollen or bulging battery under a bed giving off gas. Mr Courtney agreed that there was no such finding. Mr Fraser also maintained that the battery in question had been tested and the test results revealed that there was no fault with the battery.

[72] Mr Fraser also said that if such an incident occurred, then Mr Courtney’s failure to report it was extremely serious. Despite Mr Courtney’s assertion that the situation was a ticking bomb he did not report it. On the days and nights following the alleged incident, residents remained at the camp and the failure to report it meant that no action could be taken to ensure that there was no exposure to risk or harm for those residents.

CONSIDERATION

Was there a valid reason for the dismissal of Mr Courtney?

[73] A refusal to carry out a reasonable and lawful instruction that is consistent with the terms of an employee’s employment is a valid reason for dismissal, as are verbal abuse and aggressive behaviour towards managers, supervisors, colleagues and staff of clients.

[74] After considering the evidence I am satisfied that Mr Courtney refused to carry out a reasonable and lawful instruction from Mr Fraser to install the second batteries. I am also satisfied that Mr Courtney did not have reasonable grounds for his failure to comply with this direction.

[75] The direction Mr Fraser gave to Mr Courtney was high priority and was required to be attended to within 24 hours. Mr Courtney did not dispute that this was the case. Mr Fraser is the Operations Manager of CGC and had authority to direct Mr Courtney to undertake the work. Mr Courtney had been specifically informed that he was reporting to Mr Fraser and that any issues on site should be raised with Mr Fraser.

[76] I do not accept that there was a battery malfunction as alleged by Mr Courtney. Mr Courtney’s conduct is totally at odds with the severity of the incident he now claims. On Mr Courtney’s evidence, at 5.00 pm on Thursday 5 June, he noted gases which he believed to be highly explosive, toxic and acidic, filling a room occupied by a worker at a remote construction camp. He also allegedly noted that the battery emitting the gas was bulging and too hot to touch. In another version of the incident, Mr Courtney claims he told the worker who was occupying the room that he should evacuate the room because it was full of highly explosive gas “like the Hindenburg”.

[77] If this was the case the situation was clearly extremely serious and Mr Courtney and the worker occupying the room and all persons in any proximity were in danger. Mr Courtney failed to comply with any of the policies, for reporting the incident. He did not report it to any representative of the company employing the workers occupying the camp or the company responsible for operating the camp. Mr Courtney was well aware of the relevant policies for reporting such matters and tendered them in these proceedings. Mr Courtney’s failure to report the incident to camp management is inconceivable, and in my view is indicative that the incident either did not occur or was not as serious as Mr Courtney alleges.

[78] I do not accept that the absence of a safety officer is a reasonable excuse for Mr Courtney’s failure to report the incident. I am also of the view that if there was an incident such as that described by Mr Courtney then his failure to report it in the required manner as described in those policies and procedures, could equally be described as misconduct.

[79] I do not accept that Mr Courtney reported the matter to Mr Sisson in the telephone call he made at 5.57 pm. Mr Sisson was adamant that Mr Courtney did not report the matter. It is also the case that Mr Courtney initially said that he reported the matter to Mr Fraser and only said that it was reported to Mr Sisson when he obtained the records from his mobile telephone. It is improbable that if such an incident had occurred, Mr Courtney would be mistaken about when and to whom he reported it.

[80] Having observed Mr Sisson give his evidence, I am confident that if such a matter was reported to him he would have treated it seriously and taken appropriate steps to deal with it. Further, the email sent to Mr Gabriel at 12.06 on 11 January is totally inconsistent with the serious incident Mr Courtney now alleges. The email suggests cost savings and makes no mention of any safety concern on the part of Mr Courtney. In my view the email was generated simply because Mr Courtney did not want to fit the second battery and thought he had come up with a better solution, and not because Mr Courtney had a genuine concern about the safety implications of doing so.

[81] The proposition that Mr Courtney was waiting for a response from Mr Gabriel and could legitimately refuse to fit the batteries on safety grounds until he got a response is unsustainable. The email from Mr Courtney to Mr Gabriel made no mention of safety issues and does not indicate that Mr Courtney has a high priority job that he has put on hold while Mr Gabriel considers his suggestions.

[82] Mr Gabriel was an extremely forthright witness and made concessions that were contrary to his interests during the hearing. I accept that Mr Gabriel was truthful in his assertion that if he had the slightest hint that there was a situation such as that now described by Mr Courtney, he would have taken immediate steps to deal with it. I accept that Mr Fraser is a witness of credit, and I am confident that if Mr Courtney had made a report to Mr Fraser about the battery situation he alleged, Mr Fraser would have dealt with the situation as a matter of urgency. I am also of the view that Mr Fraser would not have sent a text message to Mr Courtney querying why Mr Courtney had not fitted the additional batteries, in circumstances where Mr Courtney had raised a safety concern related to that task.

[83] If there was an issue with the batteries, Mr Courtney was specifically told by a Director of CGC Mr Gabriel and Mr Fraser that he was required to report any incident in the field to Mr Fraser. His failure to do so is not adequately explained and I can only conclude that Mr Courtney deliberately decided that he would not comply with this direction.

[84] This is supported by Mr Courtney’s statement in the email he sent to the Directors and the Accountant of CGC on 15 January 2013, that he left Mr Fraser “out of the loop” in relation to the alleged battery incident. That email supports the conclusion that if there was such an incident (and I do not accept that there was) Mr Courtney did not report the matter to Mr Fraser. Even at that stage, Mr Courtney continued to exclude Mr Fraser from information about the alleged incident by pointedly not including Mr Fraser among the recipients of the email.

[85] The email of 15 January 2013 also illustrates the incongruity of Mr Courtney’s evidence. On the one hand Mr Courtney states that the alleged incident was so serious that he “shut everything down and ran” and on the other hand, states that he was waiting for a response from Mr Gabriel to an email that was not sent until some 6 hours after the allegedly serious incident was discovered. The incongruity is heightened by fact that the email sent to Mr Gabriel on 11 January 2013 does not make any reference to the battery being unsafe or in the condition now asserted by Mr Courtney.

[86] It is also incongruous that Mr Courtney would wait until 4 February 2013 to report such a serious matter to the Department of Natural Resources and Mines. As far as he knew, the way in which batteries were installed in the camp accommodation in question, had not changed between the date he observed the allegedly dangerous situation and the date he made the report to the Department.

[87] I do not rule out that there was an issue with the battery on 10 December 2012 associated with the incorrect setting on the charger. However, I am unable to accept that the issue was of the magnitude described by Mr Courtney. The impression I gain from all of the documents in which Mr Courtney describes the incident is that as the implications of his dismissal and the refusal of CGC to offer him his job back became clear, he embellished the description of events.

[88] Mr Courtney agrees that he did tell Mr Fraser to “fucken back off” and in my view that conduct constitutes verbal abuse, in circumstances where Mr Courtney said this while being given a lawful and reasonable instruction by Mr Fraser in relation to a priority job that Mr Fraser required him to undertake.

[89] I also accept that Mr Courtney has previously engaged in verbal abuse directed at colleagues, supervisors, managers and staff of clients. In particular I accept the evidence of Mr Cooper and Mr Gabriel about the incident during which Mr Courtney threatened to hit Mr Cooper over the head with a laptop. Mr Courtney’s evidence about this incident focused on whether there was justification for his conduct as a result of a camp move that was badly planned rather than whether he had engaged in this conduct. The reality is that there is no excuse for such conduct and it was inappropriate.

[90] I do not accept that Mr Courtney has defamed CGC. I do accept that Mr Courtney made statements that are potentially damaging to CGC and that a number of these statements are misleading and inaccurate. For example the report Mr Courtney provided to the Department of Natural Resources and Mines about the alleged safety incident on 10 January, implies that he reported the matter to Mr Gabriel in the email sent on 11 January, and was awaiting a response to that email, when this is not the case. Even if Mr Courtney maintains that he did report the matter to Mr Sisson or Mr Fraser by telephone, on his own evidence, he did not report it to Mr Gabriel by email on 11 January, and his statement to the Department of Natural Resources and Mines that he did so is both incorrect and misleading in that it implies that Mr Gabriel ignored a serious safety issue.

[91] Notwithstanding this, there is no evidence that any damage was caused to CGC and the outcome of Mr Courtney’s complaint was that no finding was made about the incident he reported, and any steps taken by CGC in relation to the matter were voluntary.

[92] In all of the circumstances, I accept that Mr Courtney engaged in misconduct and that this misconduct was a valid reason for his dismissal.

Was Mr Courtney notified of the reason for his dismissal?

[93] I accept that at the meeting of 21 January 2013 Mr Courtney was notified of the reason for his dismissal. However that meeting occurred after Mr Fraser told Mr Courtney that he was dismissed. In the context of the criteria in s.387, consideration of whether an employee is notified of the reason for dismissal is integral to the question of whether the employee has been afforded procedural fairness.

[94] Other criteria in s.387 such as the opportunity to respond to reasons for dismissal are inherently related to notification of the reason. It is difficult for an employee to have a meaningful opportunity to respond to a reason for dismissal in circumstances where the reason is not provided before the dismissal is effected.

[95] In the circumstances I am not satisfied that Mr Courtney was notified of the reason for his dismissal in the manner contemplated in s.387(b).

Was there any unreasonable refusal to allow Mr Courtney to have a support person present to assist at discussions relating to the dismissal?

[96] There were no discussions relating to the dismissal prior to it being effected, other than the discussion between Mr Fraser and Mr Courtney on 13 January 2013 and this criteria is not relevant in the present case.

Was Mr Courtney warned about any unsatisfactory performance related to the dismissal?

[97] Mr Courtney was summarily dismissed for alleged gross misconduct. However, there is evidence that previous conduct on the part of Mr Courtney in relation to his interactions with colleagues, supervisors, managers and staff of clients was taken into account in the decision to dismiss.

[98] To the extent that this conduct was relevant to the dismissal, I do not accept that Mr Courtney was warned about it, or that he was told that future incidents would result in his dismissal. It is clear from the evidence that prior to the employment of Mr Fraser, the Directors and managers of CGC had condoned Mr Courtney’s behaviour. This is apparent from the evidence about the altercation between Mr Courtney and Mr Cooper, which resulted in alternative arrangements being made for Mr Courtney to report to someone other than Mr Cooper, who was then CGC’s Operations Manager.

[99] This attitude on the part of the CGC Directors is also apparent from the fact that Mr Fendley gave Mr Courtney work after Mr Fraser had dismissed him. Given Mr Courtney’s length of service and his relationships with the Directors of CGC, he should have had a clear warning at the point Mr Fraser was engaged, or shortly thereafter, that his conduct would no longer be tolerated. I am not satisfied that this occurred.

[100] I am also of the view that Mr Fraser should have stated to Mr Courtney that he was being issued with a direction to fit the second battery and that failure to do so would be viewed as misconduct and would result in his dismissal. When Mr Courtney became verbally abusive, Mr Fraser could have disconnected the call and sent Mr Courtney a text message to that effect.

Degree the size of the employer’s enterprise and absence of dedicated human resource management specialists impacted on the procedures in effecting the dismissal?

[101] In its response to the application, CGC indicated that it has 7 employees. It is probable that there are more than 7 employees if related entities are considered. There is no evidence upon which I could conclude that the size of the enterprise or the absence of dedicated human resource management specialists impacted on the procedures followed in effecting the dismissal.

Other relevant matters

[102] Mr Courtney was at a remote site and was summarily dismissed during a somewhat heated conversation on a mobile telephone. At that point Mr Courtney had failed to follow an instruction to complete a task and had verbally abused Mr Fraser. In my view, neither of these matters could be described as serious misconduct justifying summary dismissal.

[103] At the time he was dismissed, Mr Courtney was part way through a roster cycle. It was also the case that Mr Courtney was subsequently told by a Director of CGC that Mr Fraser could not dismiss him and was provided with further work by that Director after the dismissal.

[104] Although there may have been some internal arrangement between another company owned by that Director and CGC for the other company to reimburse CGC for Mr Courtney’s wages, this matter can only have confused Mr Courtney and lead him to believe that he may be able to get his job back.

[105] This situation would not have been assisted by the fact that CGC met with Mr Courtney on 21 January 2013 and that Mr Courtney was told that his dismissal would be reconsidered and he would be advised of the outcome on 25 January 2013. Quite simply the meeting of 21 Janaury 2013 should have occurred before Mr Courtney was dismissed.

[106] Mr Courtney was denied procedural fairness. Mr Fraser should have instructed Mr Courtney to leave the site and to return to the depot for a meeting, at which his future employment could have been discussed. The failure to take this step has probably resulted in a significant escalation of Mr Courtney’s response to his dismissal and may have put Mr Courtney into a situation where he lost the opportunity to have some leniency from Mr Gabriel and to restore his relationship with management of CGC.

[107] The reasons for the dismissal do not outweigh the significant procedural defects in the process followed to effect the dismissal.

CONCLUSIONS

[108] In all of the circumstances, I am satisfied that Mr Courtney’s dismissal was unfair on the ground that it was unreasonable, because at the point the dismissal was effected, it was disproportionate to the gravity of the misconduct. Mr Courtney’s dismissal was also procedurally unfair.

[109] Mr Courtney should have a remedy for his unfair dismissal and seeks reinstatement. I am not satisfied that reinstatement is an appropriate remedy. Mr Courtney’s conduct after the dismissal was in my view, reprehensible. He sought to justify his refusal to comply with a reasonable and lawful direction issued by Mr Fraser, by what at best, can be described as exaggerating an issue so that it appeared that he had a genuine concern about his health and safety.

[110] It is clear that Mr Courtney’s actions have destroyed the necessary trust and confidence that the Directors of CGC are entitled to have in their employees, and has irretrievably damaged his relationship with Mr Fraser to the extent that reinstatement is not practicable. It is also the case that it is entirely reasonable for the Directors of CGC and Mr Fraser to have lost trust and confidence in Mr Courtney in light of his conduct.

[111] Having reached that conclusion, I am satisfied that an award of compensation should be made. The remedy of compensation is dealt with in s.392 of the Act in the following terms:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWA considers relevant.

Misconduct reduces amount

(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[112] There is no evidence that an order for compensation will affect the viability of CGC. Mr Courtney has over two years service with the Company. Considering the circumstances of the case, including the factors in s.392 of the Act, I have determined that Mr Courtney should be paid for hours that he would have worked had he completed the roster cycle that commenced on or around 10 January 2013 when he arrived at site.

[113] While Mr Courtney’s dismissal was unfair on procedural grounds, I am not able to conclude that he would have remained in employment past the meeting of 21 January 2013. In this regard, I have taken into account the fact that there were issues with Mr Courtney’s conduct and dealings with Mr Fraser and other colleagues and staff of contractors, such that there would have been a valid basis for Mr Courtney’s dismissal had he been properly warned and put on notice that his employment was in jeopardy when he refused to install the batteries.

[114] Mr Courtney worked a 14 day roster in 28 days and was paid $600.00 per day with adjustments for work in excess of 12 hours. In the roster cycle he was working at the point he was dismissed, Mr Courtney would have earned $8,400.00.

[115] I have decided that CGC should pay to Mr Courtney the amount of $8,400.00 less any payments for work performed during that roster cycle for either CGC or at the request of Mr Fendley. CGC is required to calculate this amount within seven days of the date of release of this Decision and provide it in writing to Mr Courtney and the Commission. Mr Courtney has a further seven days to consider that calculation and to advise whether he agrees or disagrees with it and to advise the Commission accordingly.

[116] In the event that Mr Courtney disagrees with the calculation, the matter will be listed for further hearing. If the amount in question is agreed, an Order will issue requiring that amount to be paid, less appropriate taxation deductions.

DEPUTY PRESIDENT

Appearances:

Mr T. Courtney on his own behalf.

Mr B. Fraser on behalf of the Respondent.

Hearing details:

2013.

Brisbane:

July 15; 16.

 1   Culpeper v Intercontinental Ship Management Pty Ltd (2004) 134 IR 243 at 249.

 2   Edwards v Giudice (1999) 94 FCR 561; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201; Sherman v Peabody Coal Ltd (1998) IR 408; Australian Meat Holdings v McLauchlan (1998) 84 IR 1.

 3   Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 4   Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

 5   Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

 6   Witness Statement of David Cooper Exhibit 3.

 7   Exhibit 11 Witness Statement of Mark Gabriel; Exhibit 10 Witness Statement of Trevor Henderson.

 8   Exhibit 10 Witness statement of Trevor Henderson Annexure “TH-1”.

 9   Exhibit 12 Witness Statement Brett Douglas Fraser “BDF-2”.

 10   Exhibit 11 Witness Statement of Mark Anthony Gabriel “MAG-3”.

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