Gary Midford v Loadpro Australia Pty Ltd

[2021] FWC 1779

[2021] FWC 1779

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gary Midford
v
Loadpro Australia Pty Ltd
(U2020/15591)

COMMISSIONER SIMPSON BRISBANE, 1 APRIL 2021

Application for unfair dismissal remedy – Respondent withdrew jurisdictional objection on basis of genuine redundancy – New jurisdictional objection applicant not dismissed – Finding Applicant was dismissed – Respondent submits job no longer required – Applicants dismissal related to capacity as a welder – Respondent failed to raise concerns with Applicants performance – No valid reason – Dismissal procedurally unfair – Applicant does not seek reinstatement – Compensation ordered.

[1] On 4 December 2020, Mr Gary Midford made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been unfairly dismissed by his employer, Loadpro Australia Pty Ltd (Loadpro).

[2] In its Form F3 – Employer Response to unfair dismissal application, Loadpro raised a jurisdictional objection to the application on the basis that the dismissal was a case of genuine redundancy.

[3] However, Loadpro subsequently filed a Form F4 – Objection to unfair dismissal application, withdrawing its objection on the basis of genuine redundancy, and instead raising a jurisdictional objection on the basis that Mr Midford was not dismissed at the employer’s initiative.

[4] Materials were filed by the parties, and the matter was listed for Hearing by Video using Microsoft Teams, on 8 and 9 March 2021. At the hearing, Mr Midford was represented by Mr Bunnag of the Australian Manufacturing Workers’ Union. Mr Robert Hall-Boman of the Chamber of Commerce and Industry Queensland represented Loadpro.

BACKGROUND

[5] Loadpro operates as a manufacturer of the Loadpro X60 Offroad Truck, with its manufacturing operations at Wakerley, Brisbane. It is a small business, and at the time of Mr Midford’s employment ceasing, it employed 11 employees.

[6] Mr Midford was employed by Loadpro on a regular and systematic casual basis as a welder from March 2019 until his employment ceased on 20 November 2021.

[7] On commencement, Mr Midford worked around 39-40 hours per week, at a rate of $37.00 per hour. At that time, Mr Midford was Loadpro’s only ‘boilermaker/welder’. At the time of his employment ceasing, Mr Midford’s hourly wage was $40.00.

[8] Mr Midford left Loadpro’s workplace around 3pm on the afternoon of 20 November 2020, taking his tools and personal belongings with him. That evening, Mr Midford had a telephone conversation with Mr Don Myles, Company Secretary of Loadpro Australia Pty Ltd, during which he raised concerns about the business and management.

[9] Mr Midford then received a text message from Mr Myles at 5:35pm on 20 November 2020 which stated:

“Hi Gary, Thanks for the phone call. Best if you send Ron a text resigning from the job. My private email address is [redacted] good luck in finding work. Cheers Don.”

[10] Also on 20 November 2020, Mr Ron Schliebs (Mr R Schliebs), Managing Director for Loadpro, had sent an email to Mr Midford at 3.56pm stating:

“Hi Gary,

This email id to inform you in writing that you will no longer be required for work at Loadpro with your last working day today the 20/11/2020.

All the best with your new job opportunities.

Thanks,

Ron Schliebs”

[11] Mr Midford did not discover this correspondence until later that evening, after his phone conversation with Mr Myles.

[12] In a separation certificate provided to Mr Milford on 9 December 2020, and signed on behalf of the employer, the reason for separation is provided as ‘Shortage of work’.

LEGISLATION

[13] Section 394 of the Act sets out:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[14] Sections 385 and 387 of the Act relevant provide as follows:

“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.”

“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.”

[15] Section 388 of the Act provides for The Small Business Fair Dismissal Code.

EVIDENCE

Mr Midford’s commencement with the business

[16] Mr Midford states his background is in heavy welding. He says that he started his career doing fabrication and welding in shipyards, which is heavy welding work, and performed various other heavy welding roles throughout his career.

[17] Mr Midford states that when he commenced employment with Loadpro, he was hired as a welder and was working fulltime hours at around 39-40 hours per week. He says at that time, he was the only ‘boilermaker/welder’ in the business and was working on a chassis that had been built at another company’s premises. It was the first prototype being used by Loadpro.

[18] Mr Midford states there were extra components that needed to be welded and fixed to the chassis, however through to the end of 2019, he found that there were difficulties with progressing completion of the truck due to a lack of appropriate tools and facilities, and that the designs were not done to satisfactory standard. Mr Midford states that he raised these issues with Mr Steve Dowse, Mr R Schliebs, Mr Nick Wolfe (workshop supervisor) and Mr Myles on a number of occasions.

[19] During his oral evidence Mr Midford was asked what work Mr Dowse was doing when he first commenced working in June 2019. Mr Midford said Mr Dowse was just helping out and didn’t have a title but started working on the chassis. Mr Midford said at the time he did not know whether Mr Dowse was a boilermaker or welder. Mr Midford said Mr Dowse was not working on the same things as he was and was just doing some fabricating.

[20] Mr Midford said that during his first few months of employment, he worked on a chassis that had been built at another company’s premises and that he was fixing components to the chassis including plates, and once the tray went onto the truck there were brackets that needed to be put in place on the top of the chassis or sometimes the side.

[21] Mr Midford was asked whether the quality of his work was assessed in house when he commenced employment as part of the interview. Mr Midford said it was, and Mr Dowse said it was fine. Mr Midford said after this he commenced working on a chassis.

[22] Mr Midford was asked when he raised the issues regarding the lack of appropriate tools and facilities with Mr R Schliebs and what he actually raised. He said he asked where the drawings were. He said he was welding chassis at the time without drawings. He was asked at what point during 2019 this was, and he said from the time he started until Christmas.

[23] Mr Midford said he saw the chassis being completed when he started in 2019. He said he worked on the prototype and two other chassis. Mr Midford was asked whether there were any other welders working with him during 2019 to which he said no. Mr Midford said he was the only qualified boilermaker, however at the start the apprentice was Mr R Schliebs’ stepson. He said Mr Dowse did not do any welding as the temperature they were welding at made it a bit hot and Mr Dowse did not have the appropriate Personal Protective Equipment (PPE). Mr Midford said Mr Dowse wanted to do little bits like fabrication. Mr Midford was asked at what time Mr Dowse left the company to which he replied sometime in September that could have been before or after 29 September.

[24] As to the status of his employment with Loadpro, Mr Midford’s evidence is that during his employment with Loadpro, at no stage was he working in a role that could be described as a ‘light welder’ nor was he hired on the basis that he would be working as a ‘light welder’. He notes that on his letter of offer he was hired as a ‘welder’ and no differentiation was made between heavy and light welding by Mr R Schliebs when he was hired.

[25] In contrast, Mr R Schliebs’ evidence is that Mr Midford was first employed in March 2019 as a ‘light welder’ to fabricate various components of the prototype vehicle. Mr R Schliebs states that Loadpro had not started fabricating the trucks at the time Mr Midford was employed as the chassis design was still yet to be delivered, and therefore the only work at that time was light fabrication welding.

[26] Mr R Schliebs states that Loadpro had issues regarding the delivery schedule for its truck chassis steel that it bought out of Sweden, which wasn’t delivered for around two to three months and put the whole project behind schedule.

[27] Mr R Schliebs states that while Loadpro originally intended to have the truck chassis manufactured in Thailand, in light of COVID-19, it was determined the manufacturing would occur in Australia. Mr R Schliebs says that on deciding to fabricate the chassis in-house in Australia, Loadpro advertised for qualified welders.

[28] Mr R Schliebs agreed he had not been a welder or fabricator himself, but had been involved with welding and fabricating for 20 years. Mr R Schliebs agreed he decides who the company employs and who is terminated. Mr Schliebs agreed he hired his son as a permanent employee. Mr Schliebs confirmed he made decision to employ Mr Nick Wolfe who was the son of a 1% shareholder of the company.

[29] It was put to Mr Schliebs that none of the trucks are working. He said there is a prototype truck that has been working for 18 months. Mr Schliebs agreed there was talk of building more than 12 trucks. He said there possibly could have been discussions with staff regarding this when it was first kicking off in Brisbane and that it was hoped there would be more units built.

[30] Mr R Schliebs said he had employed other welders before Mr Midford at other premises. Mr R Schliebs said at the current premises Mr Midford was probably the first fully qualified welder. Mr R Schliebs said he would have looked at Mr Midford’s qualifications. Mr Schliebs said he could not recall what Mr Midford’s qualifications were.

[31] It was put to Mr R Schliebs that Mr Midford averaged around 39 hours a week. Mr Schliebs agreed and said he worked flexible hours. Mr Schliebs said Mr Midford did work on chassis later in his employment. It was put to Mr Schliebs that when Mr Midford was employed, Loadpro didn’t make a distinction between light welder or heavy welder. Mr Schliebs said in his experience that just because you’re a qualified welder, it doesn’t mean you are a good welder.

[32] Mr Myles confirmed during his oral evidence that Mr Schliebs decides who is employed, with assistance from Mr Nick Wolfe. Mr Myles confirmed he drafted Mr Midford’s employment contract and confirmed the employment contract states Mr Midford was employed as a welder and not a light welder. Mr Myles confirmed that the contract was checked and approved by Mr Schliebs.

[33] During his oral evidence Mr Wolfe agreed that Mr Midford was hired as a welder. Mr Wolfe said he was involved in the welding test in relation to hiring Mr Midford, but he did not look at his qualifications as that had already been done before he tested his work.

[34] Mr Wolfe said Mr Douse was employed before Mr Midford. He said Mr Douse left to start his own business, however came back to coordinate the chassis once they were told they were coming back into the workshop.

[35] On the basis of the evidence, it would appear on the balance of probability Mr Midford was not told at the time of his engagement that he was a ‘light welder’ and was employed as a ‘welder’, and not advised he would not be doing heavy or structural welding.

Complaint to Mr Myles on 12 January 2020 and request to be made permanent

[36] It was put to Mr Midford he sent an email to Mr Myles on 12 January 2020 raising concerns, including that Mr R Schliebs was taking company tools home to work on his house as well as other general issues with the business to which Mr Midford replied “yeah”. Mr Midford agreed that in around January 2020 he had concerns with the operation and management of the business.

[37] Mr Midford submits that in late 2019 and early 2020, he raised the prospect of being made a permanent employee of Loadpro. He states that he had a verbal discussion with Mr R Schliebs to this effect, and also sent an email to the Mr Myles, asking whether he could be considered for a permanent role.

[38] Mr Myles confirms receiving an email from Mr Midford on 12 January 2020, raising the prospect of permanent roles in the future. Mr Myles’ evidence is that he did not reply to this email, but ‘may’ have mentioned it to Mr R Schliebs. He states that the company never planned to make any workshop employees permanent due to the uncertainty of the future of the company.

Mr Midford collecting his children from after school care

[39] Mr Midford states that in early 2020, his children were attending before and after school care, and he and his partner would rotate collecting their children as needed from school. Mr Midford says that this depended on what work he had on, and what activities the children had on after school. Mr Midford submits that to facilitate his parenting requirements, on days where he would be collecting his children, he altered his working hours such that he started between 6am and 7am and finished at or before 3.30pm.

[40] Mr Midford’s evidence is that he discussed these arrangements with Mr R Schliebs and Mr Wolfe, who, as far as he knew, were happy for him to work these hours. Mr Midford states that most people in the workshop knew that he worked different hours, to ensure he could collect his children after school.

[41] Mr Wayne Green worked at Loadpro’s Wakerley worksite from around 4 June 2020 to 29 September 2020. He worked on a casual basis, working an average of 40 hours per week. Mr Green says that when being employed for a role with Loadpro, Mr R Schliebs had indicated the company would hire him initially as a casual, with a view to transitioning to a fulltime permanent role.

[42] Mr Green states that he also had children he collected from school, and that he arranged with Mr R Schliebs for him to work from 6.00am to 2.30pm each day. He confirms that Mr Midford worked roughly the same hours, to ensure he could also collect his children. Mr Green states that he did not hear or witness any discussions between Mr Midford and the managers about him leaving work to collect his children, and Mr Green therefore assumed Mr Midford had an arrangement in place with Mr R Schliebs and Mr Wolfe.

[43] Mr Green states that he was aware Mr Midford would sometimes take his tools home on a Friday afternoon, to help friends with odd jobs on the weekend. He confirms Mr Midford did some welding work for him on his boat. Mr Green confirms also that he was aware Mr Midford would sometimes take his tools home as a precaution, as tools on the workshop floor kept going missing.

February 2020

[44] Mr Midford states that around February 2020, the first truck was dispatched from the workshop and he began working on the others. Mr Midford notes his role involved tasks including welding different parts of the chassis, fabricating components that needed to be added to the trucks, drilling plates, fabricating hydraulic and fuel tanks and fabricating the cab of the trucks.

[45] Mr Midford was taken to his second statement, at paragraph 4. Mr Midford said there were no other welders employed until March 2020. Mr Midford said he performed all of the chassis work and fabrication work and he was the only boilermaker there working on the chassis.

Leading Hand March 2020

[46] On 16 March 2020 Mr Midford said he was offered and accepted the role of Leading Hand Welder, with his hourly rate increased to $40.00 per hour, and at the end of March 2020, Loadpro hired another casual boilermaker, to help meet the volume of work the business had on. He said over the next few months Loadpro hired around 10 further boilermakers on a casual basis, most of whom only stayed for a short period of time.

[47] In his reply evidence, Mr Midford states that he worked on the fabrication of the chassis on several trucks before Mr Dowse had been employed by Loadpro, noting that he was made a leading hand in March 2020.

[48] It was put to Mr Wolfe that in March 2020 Mr Midford was promoted to leading hand. Mr Wolfe said Mr Midford was the only welder and so was therefore a leading hand. He said it wasn’t really a promotion as he did not receive an increase in remuneration. It was put there was an increase of $3 per hour. Mr Wolfe said he wasn’t aware of this.

Qualification as a welder

[49] Mr R Schliebs states that Loadpro required certified welders to complete its work, which required a qualified independent welder coming onsite to certify Loadpro’s welders individually.

[50] Mr R Schliebs’ evidence is that welders were tested for structural welding, and only a handful of welders were found to “weld to the standard required”. He states that Mr Midford was one of the welders that was tested and found not suitably skilled for structural welding. He says therefore, Mr Midford was confined to light fabrication welding which did not requirea high skill set or certification.

[51] Mr R Schliebs said he got Mr Midford in to do some welding on light fabrication and thought his work was okay. It was put to Mr Schliebs that if he had looked at Mr Midford’s qualification and resume he would know most of his previous work was as a heavy fabricator in a shipyard in the UK. Mr Schliebs said in his experience Mr Midford was okay at light fabrication, however he said that people come in and inspect welds and he relies on that advice.

[52] Mr Schliebs said not all welders are certified but structural welding requires certified welders. Mr Schliebs said there were two structural welders certified, Mr Douse and Luke Rowlands who was not certified but had his welding tested. It was put to Mr Schliebs that there must have been more than two structural welders, and he said this was not the case. Mr Schliebs said that the work was checked internally.

[53] Mr Schliebs said each welder needs to pass certain tests to be approved for structural welding. He said the company spends a lot of money having inspectors come and check each chassis. He said a welder does a small amount of welding and an inspector comes in and says whether they are good or bad welds. He said it was not just a visual test but also an NDT.

[54] Mr Schliebs agreed there was always 3 or 4 light fabricators including Mr Midford. It was put to Mr Schliebs that given an employee called Reese worked on structural welding though was not certified, it meant that you did not need certification to work on structural welding. Mr Schliebs said again that it was not necessarily about certification it was more about having the work inspected.

[55] Mr R Schliebs was asked if there was anyone else who would visually inspect welds prior to independent inspectors. Mr Schliebs said Mr Douse would inspect the welds. He said it was a small company and everyone was aware of the quality of welds and what was expected.

[56] Mr R Schliebs said in his oral evidence there were three ways to inspect welds being visual, NDT and X-ray. He said the company did not use X-ray. He said visual inspection is to view the quality of the weld, how it looks and the neatness. NTD requires a spray to be used on the weld that picks up any imperfections in the weld.

[57] Mr Midford submits regarding the quality of his work, he was never spoken to or warned during his employment with Loadpro. He submits that he did not participate in any performance discussions.

[58] Mr Gavin Cowley who gave evidence in support of Mr Midford said he worked at the Wakerley worksite from around 23 October 2019 to 27 May 2020. Mr Cowley states that he was a full-time permanent employee, and was considered part of the management group of the company.

[59] Mr Cowley states that during his employment with Loadpro, he was not aware of any issues with the quality of Mr Midford’s work.

[60] Mr Cowley described the workshop environment as toxic and noted there were constant issues with the production process. He said it was a tense workplace, and also noted that tools in the workshop would constantly go missing and that when an employee noted that a particular tool was missing, it would reappear within the next few days. Mr Cowley says that this is why Mr Midford and the other boilermakers would at times take their tools home with them. Mr Cowley states that he was made redundant by Loadpro on 27 May 2020.

[61] Mr Ian Davis provided a witness statement in support of Mr Midford. Mr Davis said that he worked with Mr Midford at a company around three years ago, which primarily worked with high tensile steel to manufacture its equipment. Mr Davis said that he never had any concerns with the quality of Mr Midford’s work, nor him as an employee, and Mr Midford left that business of his own accord.

Alleged mimicking of Mr Midford’s accent

[62] Mr Cowley’s evidence is that the management team had a “chip on their shoulder” about Mr Midford, and he states that he saw on occasion Mr R Schliebs and Mr Jake Schliebs mock Mr Midford’s British accent among themselves but never to Mr Midford’s face. Mr Crowley was asked to describe when he saw employees making fun of Mr Midford’s accent. He said he could not recall when it occurred. He said the conversations were not attacking but rather were mocking his accent.

[63] Mr Wolfe denied ever hearing about Mr Midford being made fun of for his British accent. Mr R Schliebs said he was not aware of any employees mimicking Mr Midford’s British accent. Mr Myles was also asked whether he ever heard Mr R Schliebs mimic Mr Midford’s accent and he replied no. Mr Midford was asked about how he knew people were mimicking his accent and he said he was told by some of the fitters including a Craig and a James.

Alleged text message from Mr R Schliebs to Mr Midford in July 2020

[64] Mr R Schliebs states that around July 2020, he sent Mr Midford a text advising that work was running out. Mr R Schliebs says that he gave Mr Midford a “couple of weeks’ notice” so that he could find alternative work. During his oral evidence Mr R Schliebs was taken to paragraph 23 of his statement. He agreed that in or around July 2020, he sent a text message saying work was running out but he did not recall when exactly the text was sent. Mr Schliebs agreed Mr Midford kept working as things kept changing in the business.

[65] In response to this evidence, Mr Midford states that he did not recall ever receiving a text message from Mr R Schliebs to the effect that work was ‘running out’.

[66] Mr R Schliebs notes that the project was expected to be completed in August or September 2020, and Mr Midford only remained employed beyond July 2020 due to the delay in supplies which extended the time of the project.

Welding of Pedestals in August 2020

[67] As part of Mr R Schliebs’ evidence he attached a text message of 23 August 2020from Mr Dowse which provided:

“… I heard there are issues with the pedestals on the last chassis. There were areas where Gary had missed filling the bevel. It wasn’t undercut but just hadn’t filled the prep. I asked Reece to fill/blend. Before he left I asked if he had done it. He told me had had but clearly didn’t.

Steve”

[68] Mr R Schliebs’ evidence is that in light of Mr Midford not doing a good job on the pedestals, and another welder having to go back and complete the job, Loadpro did not provide Mr Midford any further structural welding tasks.

[69] It was put to Mr R Schliebs that Mr Midford worked on a number of truck chassis and Mr R Schliebs said he did not. He was asked if welding on a truck chassis was structural welding and he said yes. Mr R Schliebs said Mr Midford did weld some pedestals, and when Loadpro had them tested the testing wasn’t up to grade and that’s why he was taken off straight away.

[70] It was put to Mr R Schliebs that if Mr Midford was employed as light welder he wouldn’t be working on chassis, and he said no but at the time the company had trouble securing welders and it was decided to give Mr Midford a trial on the pedestals.

[71] Mr R Schliebs was asked whether he had tested a sample of Mr Midford’s work. He said he didn’t have Mr Midford’s work tested until he did pedestals. He said he never had samples as Mr Midford was never employed to weld on the chassis. Mr Schliebs said Mr Midford’s work on the pedestals was tested and failed.

[72] Mr R Schliebs was asked which welders were not certified that worked on the chassis. Mr R Schliebs said there were a whole number of them, and that certification is perhaps the wrong word to be used as it is more about whether they have been tested before welding and he said testing was done. Mr Schliebs said Mr Douse advised him that Mr Midford did not do a good job at all and another welder needed to go back and complete the work. He said the welds were extremely flat on the chassis and there was a fair amount of undercut on his welds.

[73] Mr R Schliebs said he did not tell Mr Midford there was an issue with his work because if he felt he wasn’t working he would just put him back on tasks he could do. Mr R Schliebs agreed he never told Mr Midford he was not able to work on the structural welding.

[74] Mr Wolfe states that he was aware that Mr Dowse, Mr Midford’s welding supervisor, allocated him some work welding pedestals, which he said is a structural component and which Mr Dowse was not aware Mr Midford was not competent in performing.

[75] Mr Wolfe said Mr Midford never performed work on chassis and only the pedestals which was in August 2020. He said that Mr Midford did no structural work on the chassis at all until August 2020. Mr Wolfe said that the tests that the company went through indicated Mr Midford’s work was not sufficient for structural welding. He said there are external contractors who conducted independent inspection of Mr Midford’s welds and failed them.

[76] Mr Wolfe said in relation to the test results he told Mr Midford the work did not meet the standard and needed to be reworked. Mr Wolfe said he communicated the results of the test to Mr Midford but didn’t use the words that he failed. He said it is quite embarrassing for your work not to meet standards and he didn’t want to embarrass Mr Midford.

[77] It was put to Mr Wolfe that this inspection was visual only. Mr Wolfe said he could not comment on the type of testing. He said it would have been either visual, NDT or both. Mr Wolfe agreed that in terms of structural welding you need to be certified. He said before Mr Midford was employed, himself, Steve Douse and Luke Rowland were certified structural welders. He said since Mr Midford, several employees have worked on structural welding.

[78] Mr Wolfe said every weld Mr Midford did on the pedestal failed and he was never tested on the chassis as he never did a weld on the chassis. Mr Wolfe said Mr Midford did approximately 16 welds on the pedestals and none of them passed. He said they all needed to be reworked by another boilermaker. Mr Wolfe said Mr Midford was well aware there were issues as he could see them in the corner being reworked. Mr Wolfe said he didn’t supply the ticket and didn’t tell him they failed because he didn’t want to embarrass Mr Midford.

[79] Mr Wolfe said he never directly raised an issue with performance. He said at times he would ask for things to be reworked, but never directly told Mr Midford to improve the quality of his welding as he didn’t want to embarrass him as they were all friends. Mr Wolfe said he told Mr Midford they were hiring external welders and he would be kept on light fabrication work as he didn’t have the skill set to work on the chassis.

[80] Mr Wolfe said the issues with Mr Midford’s work were well known before August 2020. He said Mr Douse gave Mr Midford another chance. Mr Wolfe said there was an issue with his initial test in that it was not up to standard to work on chassis and that is why he was put on light fabrication.

[81] Mr Midford states that he did not recall ever having his work “tested and certified offsite by the Respondent”. Mr Midford’s evidence is that this would cost around $1,500 and his understanding was that Loadpro did not organise this certification, because Mr R Schliebs was concerned about the cost. He says he does however recall Loadpro organising for a welding assessor to visit the site to perform a ‘visual spot check’ of the welds that had been performed. Mr Midford admitted that there were spots of welding “that were not perfect” on the chassis, but he said that is typical of heavy fabrication and welding on these types of structures, “and is still acceptable”. Mr Midford’s evidence is that the ‘substandard tooling’ used in the workshop also meant that the employees’ work was not always perfect, “but was acceptable by industry standards”.

[82] Mr Midford was taken to paragraph 7 of his second statement. Mr Midford agreed Mr Sullivan was an external inspector and to the best of his knowledge was qualified to assess the work of Loadpro employees. He agreed there was an issue of imperfections. Mr Midford was asked if there were imperfections how would this be up to industry standards? Mr Midford said it just needed to be fixed up.

[83] Mr Midford was asked when the work was assessed. He said he didn’t know. He was asked who fixed the weld that needed to be fixed to which Mr Midford replied himself. Mr Midford was asked whether it was assessed again to which Mr Midford advised he could not recall.

[84] Mr Crowley accepted during cross examination that it was his opinion that Mr Midford’s work was up to standard rather than the opinion of management. He also said that he witnessed tests being undertaken and they showed Mr Midford’s work was satisfactory.

[85] Mr Crowley was asked how he came to know about the NDT tests and the results. He said through group “by the way conversations.” He said the test showed some minor rework was required but in his personal opinion it was not a major rework that was unusual for a boilermaker.

[86] Mr Crowley was asked whether the test was around August 2020 and he said he believed so and that there was a small amount of rework to be done. Mr Crowley was asked what his role was in relation to the design, layout specification and engineering of the trucks to which he replied no.

[87] It seems reasonably clear on the evidence Mr Midford was given an opportunity to perform welding on pedestals to be attached to the chassis in August 2020 and his welding was assessed as not being to the required standard by an external assessor.

Events in October including conversations between Mr Wolfe and Mr Midford

[88] Mr Wolfe said six weeks prior to Mr Midford leaving, he and Mr Midford had a disagreement that needed to be diffused by Mr R Schliebs. He said Mr Midford can be quite aggressive and uses his physical status as a tactic. He agreed Mr Midford was not disciplined for this. Mr Wolfe agreed he had issues with Mr Midford in the six weeks leading up to his termination, but agreed those issues were never raised with Mr Midford. He said it’s a small company and there is no Human Resources to assist them with these things.

[89] Mr Midford agreed he had an altercation with Mr Wolfe and that they “had words”. He said he asked Mr Wolfe whether he needed to switch off anything in the cab so he could weld on it. Mr Midford said Mr Wolfe got a bit uptight and said he had already turned the power off. Mr Midford was asked whether he raised his voice or whether Mr Wolfe raised his voice to which he replied no. Mr Midford said nobody stepped in at that point.

[90] Mr Midford said he walked away, and a few minutes later Mr Wolfe followed him and they “had words again.” Mr Midford was asked whether it was heated, and he said possibly, and it depended how you looked at it. He was asked what he meant by that and he responded that Mr Wolfe came after him and was yelling at Mr Dowse.

[91] Mr Wolfe also states that in October 2020, he had conversations with Mr Dowse and Mr Midford about ongoing work, after they had both approached him separately with their concerns of work ‘drying up’.

[92] Mr Midford’s evidence, however, is that he never had any formal discussions with Mr R Schliebs or Mr Wolfe about the continuity of his employment or whether there would be enough work for him to continue with Loadpro. Mr Midford acknowledges that he was concerned about the flow of work and raised this with other employees and Mr Wolfe, however he says that he never had any clear indication given to him by management that there was not enough work to keep him employed.

[93] Mr R Schliebs states that around two weeks before Mr Midford ‘left’ the business, fabrication work was winding down. He says that Loadpro therefore determined that area of the business could be managed without a supervisor and made the decision to let Mr Dowse go.

[94] Mr R Schliebs states that at that time, two welders were working in light fabrication, being Mr Midford and Mr Avon Phillips. His evidence is that the light fabrication work had reduced such that Loadpro had to decide whether to terminate Mr Midford’s employment or Mr Phillips’ employment within the following two weeks.

[95] It was put to Mr R Schliebs that around the time Mr Midford was told work was winding up, advertisements were made for welding positions. Mr R Schliebs agreed, and he agreed he drafted the advertisements. It was put to Mr R Schliebs that the advertisements did not refer to a requirement for certified structural welders. Mr R Schliebs agreed and said that he was having difficulty getting qualified welders. Mr Schliebs repeated that Mr Midford’s welds were not up to industry standards according to two different independent inspectors.

[96] Mr R Schliebs was asked whether he placed the advertisement for new welders before or after Julian and Reese advised they were leaving, Mr Schliebs said he could not recall.

[97] Mr Wolfe states that Mr Midford knew the work was ‘drying up’ at this time and approached him around two weeks before he left the business, saying “Look, Nick, I don’t even think they’ll get through November with this work”. He says at this time, Mr Midford also asked him about organising a discounted price for a new welding helmet, saying words to the effect of “Can you look at organising me a discount like you did for Reese with the welding helmet?”. Mr Wolfe says that he asked what Mr Midford needed a new welding helmet for and that Mr Midford replied: “it’s always a good image going into a new job with a brand-new welding helmet”. Mr Wolfe further says that Mr Midford mentioned he was looking for work out west in the gas industry.

[98] Mr Wolfe notes that he did order Mr Midford’s new helmet from ‘Aitken Welding Supplies’ on 20 October 2020, “exactly a month before he left”.

[99] In response to this evidence, Mr Midford states that he wanted to buy a new helmet because he had some ‘extra funds’ and was aware that two of the other boilermakers were leaving for other jobs. He says that as he was aware two employees were leaving, it meant he would be doing more work on the chassis and would benefit from having a helmet that had an airflow piece. Mr Midford says that he understood one of the employees had been able to purchase a helmet through Loadpro’s account, which meant it was much cheaper, and therefore he asked to do the same. Mr Midford says that he never said to anyone that he wanted a new welding helmet for the purposes of finding another job, or that he was applying for work in the gas industry at the time.

[100] During his oral evidence Mr Wolfe was taken to his statement where he said Mr Midford told him he wanted a new welding helmet to look good for a new job. It was put to Mr Wolfe that Mr Midford never said this, Mr Wolfe said that was incorrect and that he did say it.

[101] Mr Wolfe said Reese and ‘Junior’ were certified internally. He said he was not sure if they had external contractors come in and certify them. Mr Wolfe said Reese and Junior were hired to predominantly work on chassis. Mr Wolfe said Reese and Junior finished the same Friday as Mr Midford and agreed they both left because of other jobs and not due to a shortage of work.

[102] It was put to Mr Wolfe that the possibility of Mr Midford doing the work of Reese and Junior, was not discussed with Mr Midford, and he said not in those words.

[103] It was put to Mr Wolfe that Loadpro advertised for welders when there was still light fabrication work to be done. He said there was around three or four days left of light fabrication work for Mr Midford. He agreed there was structural work to be done in the chassis and said it was pretty obvious that Mr Midford would not be working on the chassis once Reese and Junior left due to the issues with the pedestal tests. Mr Wolfe was asked if the new welders were certified structural welders. He said they were qualified internally but was not sure if externally.

[104] It was put to Mr Myles that Mr Schliebs and Mr Wolfe didn’t have a good relationship with Mr Midford. Mr Myles said they had concerns with the quality of Mr Midford’s quality of work and attitude.

[105] Regarding the need to reduce staffing, Mr R Schliebs’ evidence is that Loadpro decided that Mr Midford’s employment would be terminated, as Mr Phillips was a long-term casual employee and was a more experienced and skilled welder, with a “tremendous amount of experience in other trades like machining”. Further, he notes that Mr Phillips is also a toolmaker and he designed a lot of the tooling for the company and had previously owned his own business for around 20 years.

[106] Mr Midford submits that in the weeks leading up to his dismissal, the mood in the workshop amongst employees was not good. He submits that there was a constant turnover of staff, including Mr R Schliebs’ assistant being dismissed by text message on the Tuesday of the same week. Mr Midford further states that a number of other employees left due to problems within the business, including organisation and a continued lack of appropriate tooling, which contributed to delays in completing the trucks.

Message of 18 November

[107] Mr Myles confirmed Mr Midford sent him a text message on 18 November seeking clarification from him regarding what Award he was covered by.

[108] Mr Myles states that he replied the same day, and that in the exchange Mr Midford said he did not have any issues but mentioned that he did not get much joy with the current management.

[109] Mr Myles was asked in relation to the text message whether he contacted Mr R Schliebs about this. Mr Myles said he thinks he most likely would have raised it during a conversation at some time.

[110] Mr R Schliebs was asked if he had spoken to Mr Myles prior to 20 November, and he said he regularly speaks to Mr Myles, but he could not recall an exact date. Mr Schliebs agreed he made a decision before 20 November to terminate Mr Midford’s employment and agreed he had told Mr Wolfe and Mr Myles that he planned to terminate Mr Midford.

Alleged termination of employment 20 November 2020

[111] Mr Midford submits that he attended work on Friday, 20 November 2020, commencing work around 6.00am. He says that he mentioned to Mr Jake Schliebs that he would be leaving early that day as usual to collect his children from school.

[112] Mr Midford says that on that day, he was working with two other employees who were finishing up to start other jobs. Mr Midford says that he and the other employees had their lunch around 1.00pm, and that he left work around 2:30pm to collect his children. Mr Midford confirms that he took his tools home from work that day because on the Saturday, he had agreed to help a friend with a project in Noosa.

[113] Mr Midford’s evidence was also that there had been issues of other employees borrowing his tools without his permission and not returning them. He says accordingly, he kept his personal tools in a bag that he could take home with him if needed.

[114] Mr R Schliebs’ evidence is that on 20 November 2020, he was intending to send Mr Midford an email advising him in writing that he was ‘no longer required’. He says however, Mr Wolfe advised him, before he was able to send the correspondence, that Mr Midford had packed his belongings and left.

[115] Mr Wolfe confirms this evidence, stating that around 3.00pm he saw Mr Midford do a few trips to his car with his tools and personal belongings. He says that he then saw Mr Midford wash his hands, take a photo of his timecard with his phone, and walk out the side door where his car was parked and drive off. Mr Wolfe says that he turned to Mr R Schliebs and said, “Hey, Ron, I think Gary’s taken all of his tools and taken everything to his car. He’s left nothing”.

[116] Mr Wolfe says that he walked to Mr Midford’s booth, looked around, and confirmed that everything Mr Midford owned had been removed including his equipment, personal belongings, tools and radio. He says that he then said to Mr R Schliebs, “Mate, I think he’s taken everything. I’m not sure if Gary’s coming back, I think you might have saved yourself a job”.

[117] Mr Schliebs’ evidence is that it was unusual for Mr Midford to take all of his tools and personal belongings home with him. Mr R Schliebs states that when workers had left in the past, they would pack up their tools and return on the following Monday to pick up their ‘personal gear’. He said that every tradesman has their own personal things such as cups, a change of clothes, welding jackets and welding gear that they accumulate over ‘periods of time’, and that on the afternoon of 20 November 2020, Mr Midford took everything with him, “loading it all in his car and driving off”. Mr R Schliebs notes further, that Mr Midford left without saying anything to himself or Mr Wolfe, which he said was unusual as Mr Midford was “always a person that would say goodbye to you when he was leaving”.

[118] Mr R Schliebs said further that Mr Wolfe was on the floor and Mr Midford was the only welder in the workshop at the time, and yet he did not say a thing to Mr Wolfe before he left. Mr R Schliebs’ position therefore is that it was obvious Mr Midford “wasn’t coming back”.

[119] During his oral evidence Mr R Schliebs agreed Mr Midford was at work on 20 November, though he did not talk to Mr Midford in person about his termination. Mr Schliebs agreed he thought it was appropriate to terminate Mr Midford by email. Mr Schliebs said he did not see Mr Midford pack up his tools and was not on the workshop floor when Mr Midford left.

[120] It was put to Mr Schliebs that there were problems with tools going missing at times. Mr Schliebs replied no as he would have been notified about it. Mr Schliebs said this issue was never raised by Mr Midford or Mr Myles. It was put to Mr Schliebs that employees had concerns about leaving tools around due to issues with them going missing. Mr Schliebs said this was the first he had heard of this and that his view was that it was a secure area.

[121] Mr Schliebs said he thought Mr Midford left around 2:30pm on 20 November. It was put to him that this was not unusual for Mr Midford to work flexible hours and leave early to pick his kids up. He said he was not sure of the arrangements.

[122] Mr Schliebs agreed that at no point on 20 November did Mr Midford tell him he was resigning from his employment. Mr Schliebs confirmed he drafted the termination email that was sent to Mr Midford and that it was sent from his email address.

[123] Mr Schliebs agrees the email stated Mr Midford was no longer required for work. He agreed Mr Midford was not told in the email why he was no longer required but that Mr Midford was already aware that work was winding up. Mr Schliebs agreed he did not give Mr Midford a chance to discuss why he was no longer required.

[124] Mr Wolfe agreed it was discussed with Mr Schliebs that he decided to terminate Mr Midford. Mr Wolfe said Mr Midford was disgruntled leading up to 20 November. He said he tried to say good morning, but Mr Midford did not want to talk to him. He agreed he did not talk to Mr Midford about his termination.

[125] Mr Wolfe said he did not approach Mr Midford in the afternoon of 20 November as he did not want to create a scene. He said he saw Mr Midford clear out all of his things, including his coffee cup and left nothing and said it did not appear to be normal behaviour. Mr Wolfe was asked if it seemed like Mr Midford’s behaviour was unusual, why did he not approach him. Mr Wolfe said he was afraid Mr Midford might be aggressive towards him as he had not been speaking to him at that point.

[126] Mr Wolfe agreed he has seen Mr Midford leave with some tools prior to 20November, however never with all his tools. He said he has never seen him take his coffee cup home. Mr Wolfe was asked if he was aware there were concerns with tools being used or going missing and Mr Wolf said he was not.

[127] Mr Wolfe agreed Mr Midford had children and often finished so that he could pick his children at 3:00pm. Mr Wolfe agreed he didn’t have a problem with Mr Midford leaving at around that time provided he worked a set number of hours. Mr Wolfe disagreed it was usual for Mr Midford not to say goodbye to him when leaving work. Mr Wolfe agreed at no point during Mr Midford’s employment or on 20 November did Mr Midford advise him he was resigning from his employment.

[128] Mr Midford states that when he left work that day, he took with him his tool bag, welding jacket, radio and a backpack that he brought with him each day. He noted that his backpack usually had in it a spare shirt, his keys, wallet and travel mug, and he notes that he never left his personal items such as his wallet or money ‘laying around the workshop’. Mr Midford said that he took his welding equipment home as he was going to be helping a friend the next day, and he took his radio home as he liked to “work with music in the backyard”. Mr Midford notes he did “not feel comfortable leaving [his] things in the workshop”.

[129] Mr Midford said he kept his own personal tools in a bag. Mr Midford was asked if he reported the issue of tools being taken to management, and Mr Midford said he reported this to Mr Wolfe. He was asked if it was raised with anyone else to which Mr Midford replied no.

[130] Mr Midford notes that he did see Mr Wolfe outside the workshop that afternoon, and Mr Wolfe did not say anything to him and he did not say anything to Mr Wolfe. Mr Midford says that he did not say goodbye as he and Mr Wolfe did not usually socialise, and therefore him not saying goodbye was not uncharacteristic as there were many days when he would not tell Mr Wolfe he was leaving “and vice versa”.

[131] Regarding the timecard, Mr Midford confirms he did take a photo of the timecard “as [he] usually did, to make sure that [he] was paid correctly”. Mr Midford said it was not unusual for him to do this, and is a habit due to previous employers.

[132] Mr R Schliebs states that on 20 November he and Mr Wolfe expected that they had “seen the last of [Mr Midford]”. Despite this, he says that around 4.00pm that afternoon he sent an email to Mr Midford confirming his services were no longer required at Loadpro.

[133] Mr Midford’s evidence is that around 5.19pm on 20 November 2020, he telephoned Mr Myles. Mr Midford wanted to discuss his concerns about the business, and states that he told Mr Myles he was frustrated by how the company was going and Mr R Schliebs’ inability to run the company. He says that he noted Loadpro’s toxic atmosphere, and confirms he said words to the effect that he had ‘had enough’ of Mr R Schliebs’ attitude and the impact it was having on the business. Mr Midford states that during this phone conversation, he did not say he would be leaving the business as he had no intention of doing so.

[134] Mr Midford submits however, at 5:35pm he received a text message from Mr Myles stating:

“Hi Gary, Thanks for the phone call. Best if you send Ron a text resigning from the job. My private email address is [redacted] good luck in finding work. Cheers Don.”

[135] Mr Midford submits that he did not reply to Mr Myles’s text message as he was not intending to resign, particularly given the situation with COVID-19 and it being so close to Christmas.

[136] Mr Myles’s evidence is that on the morning of 20 November, Mr R Schliebs had contacted him to advise that he was going to terminate Mr Midford’s employment due to lack of work. Mr Myles says that he told Mr R Schliebs to put something in writing to Mr Midford, as it was a requirement under his contract. He confirms however later that afternoon Mr Midford contacted him by phone. Mr Myles says that Mr Midford was “quite upset” and in his words had “had enough” and would not be returning to work. Mr Myles states that Mr Midford complained about the way he had been treated by management.

[137] Mr Myles’s evidence is that the call finished after around 10 minutes, and immediately after he sent Mr Midford a text suggesting that he send Mr R Schliebs a message to inform of his resignation. He confirms that he also wished Mr Midford luck with finding work and offered his personal email as Mr Midford had indicated he wished to put his concerns about Loadpro in an email to him.

[138] Mr Myles’s evidence is that at the time of the phone conversation, he was not aware that Mr R Schliebs had already sent Mr Midford a ‘termination email’ or that Mr Midford had cleared out his tools and personal belongings from the workshop. He states further that during their telephone conversation, Mr Midford did not mention anything of an email from Mr R Schliebs.

[139] Mr Midford states that he checked his emails that night, and discovered that Mr R Schliebs had sent him an email at 3:56pm stating that he would “no longer be required for work at Loadpro with your last working day today the 20/11/2020”. Mr Midford states he was not given any notice or warning about this email, and was shocked to have received this email. Mr Midford says he did not understand why he was being dismissed, as no reason was provided in the email. He states he never had any discussions with Mr R Schliebs or the other managers regarding dismissal.

[140] In his oral evidence Mr Myles said Mr Midford said he had had enough, and he would not be returning to work. It was put there was more to that conversation. Mr Myles said that he could not quote his exact words, but the exact meaning was he was resigning. It was put to Mr Myles Mr Midford said he had enough of the way he was being treated and Mr Myles agreed.

[141] It was put to Mr Myles that Mr Midford raised concerns about the high turnover and he said he may have.

[142] It was put to Mr Myles that Mr Dowse had also recently been terminated by text message and Mr Myles said he would need to follow this up. Mr Myles agreed that two other boilermakers had also been terminated.

[143] It was put it was not unusual for Mr Midford to raise concerns. Mr Myles said it was on a few occasions over 18 months and that it was very seldom Mr Midford raised concerns.

[144] It was put to Mr Myles that Mr Midford never said he was not going to return and Mr Myles said he was adamant Mr Midford said words to the effect he could not or was not be returning. He confirmed he could not recall exactly but that it was either he could not or would not return. Mr Myles said he could not recall whether Mr Midford said he was resigning or not, but that he said he would not go back or could not go back which was virtually resigning from the job and therefore he said to Mr Midford he needed to put that in writing. Mr Myles confirmed he did not receive anything in writing.

[145] It was put to Mr Myles he did not raise with Mr Midford that he was being terminated. Mr Miles said he thought it would be better to give Mr Midford a chance to resign. It was put to Mr Myles that he was of the view it would be better for the employer if Mr Midford resigned. Mr Myles said the reason was because he thought it was better for Mr Midford if he was to resign.

[146] It is not disputed that following Mr Midford’s departure from the workplace on 20 November 2020, Mr R Schliebs sent him an email around 4.00pm advising that his services were no longer required.

[147] In this regard, Loadpro’s position is that when Mr Midford contacted Mr Myles to advise of his resignation, he was unaware that he had been sent the ‘termination email’ by Mr R Schliebs. Loadpro relies here on the evidence of Mr Myles, who advised Mr Midford that he should send his resignation in writing to Mr R Schliebs.

[148] Loadpro therefore states that the ‘termination email’ informing Mr Midford that his services were no longer required, was “ineffectual” as Mr Midford’s employment was at an end following his departure from the workplace earlier in the afternoon of 20 November 2020. In support of this position, Mr R Schliebs states that at the time of sending the ‘termination email’, “I didn’t know at the time that I didn’t need to send him anything. I thought I still needed to tell him his services weren’t required any longer”.

[149] Loadpro submits that Mr Midford’s conduct “as a whole manifested an intention to no longer be bound by his contract of employment and to no longer render service to the Respondent”.

[150] Further, Mr Wolfe’s evidence is that since 20 November 2020, he has not seen Mr Midford return to pick up anything “whatsoever” as he “well and truly cleared out everything he owned that day he walked out”. He confirms these actions were not the ‘norm’, and not expected of an employee who would be turning up to work on Monday.

[151] Mr R Schliebs was asked whether any other employees came to him with concerns about tools missing. Mr R Schliebs said no, at no time did employees come to him and tell him tools had gone missing or discrimination in the workplace. It was never brought up to him or his supervisor ever.

[152] Mr Cowley states that after his leaving the business, he stayed in contact with Mr Midford and recalls a phone call from Mr Midford on 20 November 2020 where Mr Midford spoke of his poor treatment at Loadpro. Mr Cowley says that during this call, he suggested that Mr Midford try and find another job, but that Mr Midford confirmed he would not leave the business as it was so convenient for his family. He says that while Mr Midford acknowledged it was hard being there, he noted it was only 10 minutes down the road from his home and worked well for his family. Mr Cowley states:

“Gary did not say to me that he intended on quitting Loadpro but said that he would speak to who he thought was a director of the company, Don Myles, about the way the company was going and we discussed what he should say to Don”.

21 November working with Mr Jimenez

[153] Mr Carlos Jimenez provided a witness statement in support of Mr Midford. Mr Jimenez provides that he has known Mr Midford for around 10 years, and that on Saturday 21 November 2020, Mr Midford had brought his own tools to assist him in welding some beams on a residential project he was working on in Noosa. Mr Jimenez says that while they were working together that day, Mr Midford told him that he had been fired from Loadpro the day before via email. He says that Mr Midford was upset by this and said he did not understand why he had been fired.

[154] During his oral evidence Mr Jimenez said when Mr Midford was assisting him on 21 November 2020 welding some beams for a residential project, the equipment Mr Midford bought with him included a tool bag with hand tools, his radio and his PPE. Mr Jimenez said in terms of PPE, that included his mask, gloves and glasses.

[155] Mr Jimenez said he could not remember whether Mr Midford had a welding stool or a platform. Mr Jimenez agreed it was standard for boilermakers to bring this type of equipment with them each time. Mr Jimenez was asked what Mr Midford has said to him in relation to the other people who had been fired or quit. Mr Jimenez did not seem to have any further information on this. Mr Jimenez said Mr Midford and he help each other as friends and don’t exchange money.

Seek job advertisement around time Mr Midford ceased employment

[156] Mr Midford states that following his dismissal, he was advised by his Union representative that the Respondent had placed an advertisement on Seek for a ‘casual boilermaker’ role at the Wakerley facility he had been employed at. Mr Midford’s evidence is that the advertisement was placed on the same day he was terminated. He says further that he became aware, via another employee of Loadpro, that Loadpro had hired two boilermakers on a casual basis at the Wakerley facility.

[157] Mr R Schliebs’ evidence in reply is that over the ‘past 7 or 8 months’, he had placed at least four ads in Seek looking for qualified welders with experience in welding high tensile steel using chrome nickel wire. His evidence is that at the time Mr Midford left the business, he had a couple of ads on Seek as Loadpro had two casual high tensile chassis welders leave the business that same week for permanent positions elsewhere.

[158] Mr R Schliebs says that the week after Mr Midford left the business, he interviewed three people, two of which Loadpro ended up employing. Mr R Schliebs says that these new employees were tested. Mr R Schliebs says that Mr Midford did not hold qualifications or experience in the relevant type of welding, “otherwise [the business] would have been able to keep him employed longer”.

[159] In response, Mr Midford states that Mr R Schliebs’ evidence is “puzzling” given that he was never asked for his qualifications as he had been required to do at previous jobs. He says further, he understood none of the other employees working for Loadpro were asked to provide their qualifications.

Separation certificate

[160] Mr Midford states that on or around 25 November 2020, he contacted Mr Myles and asked for a copy of his separation certificate and on receipt, it provided that his employment ceased due to ‘shortage of work’.

[161] Mr Myles’s evidence is that further to Mr Midford’s enquiry about a separation certificate, he had replied that “The need for a separation certificate was waived due to due to (sic) COVID”. He says this is the last text exchange he had with Mr Midford.

[162] Mr Myles notes however on 8 December he received an email from Mr Midford, further requesting a separation certificate which he says was required for training purposes and not Centrelink. Mr Myles confirms that on 10 December he emailed the separation certificate to Mr Midford on which he marked the reason for employment ending as ‘shortage of work’. Mr Myles’s evidence is that he did so, assuming that it would benefit Mr Midford, to show that he’d lost his job through lack of work and rather than any other reason, as he had “no gripes” with Mr Midford.

[163] Mr Myles agreed that Mr Midford contacted him on 25 November asking for a separation certificate. Mr Myles agreed he drafted the separation document. Mr Myles was asked why that he did not select the option that Mr Midford ceased employment voluntarily if it was his view that Mr Midford had resigned. Mr Myles said after much consideration he thought it would be better for Mr Midford if the reason was due to shortage of work. He said whether or not he resigned, it would be due to shortage of work.

[164] It was put to Mr Myles that the real reason was that Mr Midford was terminated because of shortage of work. Mr Myles said if he had of been terminated it would have been due to shortage of work.

[165] It was put to Mr Myles that there was difficulty selecting a reason because there was not a valid reason for his termination. He said this was not correct and that he was doing what he thought was best reason for Mr Midford albeit most likely incorrectly.

[166] Mr Myles said the manufacturing has finished but that the company will exist to support and maintain existing trucks. He said the only way to get any revenue will be to rent the existing prototype. He said that even though the company has had sales there has been no revenue due to high financial loans.

Loadpro’s X60 project status

[167] At the time of filing his statement in February 2021, Mr R Schliebs’ evidence is that the work on the chassis welding operations for the X60 project would be completed likely “within the next week or so”, following which time the business would be assembling its final truck.

[168] Mr R Schliebs states that Loadpro only ever intended to rent the premises at Wakerley for two years, as the manufacturing aspect of the project would be completed by then and Loadpro would no longer need the space. He states that, if not for the delay in delivery of the steel as referred above, Loadpro expected to have the project completed around August or September 2020.

[169] Mr R Schliebs states that all affected workers had been given notice, including chassis welders. Loadpro expected to have the final truck assembled and all work completed by early March, ahead of the lease ending on 31 March 2021.

[170] Mr R Schliebs states that Loadpro does not, at the time of filing his statement, “have a home to go”, however he states that it will likely set up a small office to “maintain, monitor and support the prototype trucks that [Loadpro is] completing”.

[171] In his oral evidence Mr R Schliebs said heavy welding finished up in January, and welders were given notice in mid-January. The assemblers of the trucks have been given 2-3 weeks’ notice. Mr Schliebs confirmed there are currently no welders working for Loadpro. Mr Schliebs agreed the lease will be up on 31 March, but a small office will remain to support and maintain existing trucks.

[172] Mr Midford acknowledged that he was aware the lease on the workshop was set to expire in or around March 2021 and that the number of trucks on order may have been ‘revised down’.

[173] Mr R Schliebs states that an accounts person, senior support engineer and senior draftsperson were engaged as permanent employees, and an apprentice was taken on. However, given the short-term nature of the manufacturing work, and the “intermittent nature of working with a prototype”, Mr R Schliebs states that all fitters, parts people and fabricators were employed as casuals as Loadpro needed to be able to turn labour “on and off” as it progressed.

SUBMISSIONS

Jurisdiction

[174] Loadpro submits that Mr Midford resigned from his employment and there was no dismissal at the initiative of the Employer as required by s.385(a) of the Act.

[175] The AMWU cites the decision in Mohazab v Dick Smith Electronics Pty Ltd, 1 and submits that, in accordance with the Mohazab decision, a termination is at the employer’s initiative when:

i. The employer’s action ‘directly and consequentially’ results in the termination of employment, and

ii. Had the employer not taken this action, the employee would have remained employed.

[176] The AMWU submits that while the Commission must determine what was the ‘critical action’ that resulted in the employment relationship ending, all of the circumstances must be examined, including the conduct of the employer and employee, before the Commission can conclude whether an employee’s employment was terminated at the employer’s initiative. 2

[177] It is apparent Mr R Schliebs had decided to terminate Mr Midford’s employment on 20 November 2020 and had told Mr Myles this. In accordance with this, Mr R Schliebs had sent an email to Mr Midford at 3.56pm on 20 November 2020, stating that Mr Midford was no longer required for work with Loadpro and that his last day of employment was 20 November 2020.

[178] The AMWU disputes the Respondents reliance on his removal of his tools and his personal belongings, and his statement to Mr Myles that he had “had enough” as constituting resignation. The AMWU submits that neither of these events amount to an action that directly and consequentially ended the employment relationship between the Respondent and Mr Midford.

[179] The AMWU position is that the Respondent’s evidence ‘at the most’ demonstrates that:

i. Mr Midford left work at a time that was not uncharacteristic, as he came and went as he pleased, and he took home his tools and personal belongings. The Applicant’s departure from the workplace went unchallenged by any of the Respondent’s employees or supervisors;

ii. Mr Midford had a discussion with a person who he thought was a company director, Mr Miles, and effectively vented about the shortcomings in the company’s management; and

iii. At no time, did Mr Midford say in writing or orally that he was resigning his employment.

[180] It is apparent from the evidence that the time Mr Midford left work on 20 November was not unusual given he often left around that time to collect his children from school. I also accept that it was not unusual for Mr Midford to take his tools and “limited personal belongings (i.e. a radio and backpack)” if he was helping someone with a welding job on the weekend, as on the evidence he had planned on the weekend immediately after he was dismissed.

[181] It is clear no one from management attempted to speak to Mr Midford on 20 November about what he was doing around the time leading up to his departure that day. There was evidence from Mr Wolfe that he saw Mr Midford pack a stool in his car. Mr Midford said he did not own a stool and denied he did this. I am not inclined to place significant weight on this disputed fact as to whether Mr Midford resigned.

[182] Regarding Mr Midford’s telephone conversation with Mr Myles on 20 November 2020, Mr Midford was clear in his evidence that he did not resign, however appears to concede he said words to the effect of that he had had enough. Mr Cowley’s evidence would tend to indicate Mr Midford did not intend to resign that afternoon.

[183] Having considered Mr Myles evidence it is plausible he interpreted words to the effect that Mr Midford had had enough, or could not go back as a resignation when Mr Midford was only intending to express his frustration to Mr Myles rather than end his employment relationship with Loadpro. Mr Myles accepted he could not remember if the word resign was used by Mr Midford. The text message from Mr Myles suggesting Mr Midford submit a resignation to Mr R Schliebs may reflect Mr Myles understanding but not Mr Midfords intention. The conversation took place in a context of Mr Midford having previously raised concerns with Mr Myles about Loadpro.

[184] It is also notable, as was submitted by the AMWU that the Form 3, signed by MrSchliebs and dated 11 December 2020, which stated that the Applicant’s employment was terminated due to ‘insufficient’ work and that this had been ‘decided’ by the Respondent, and the initial jurisdictional objection (later withdrawn) was that the Applicant’s dismissal was a case of genuine redundancy.

[185] It is also notable that the Employment Separation Certificate dated 9 December 2020, completed by Mr Myles stated the reason for separation as being ‘shortage of work’.

[186] Loadpro referred to Mr Midford’s general dissatisfaction and that he was not on speaking terms with Mr Wolfe to support its view he intended to resign.

[187] Having weighed the evidence, I am not satisfied that Mr Midford resigned from his employment in the course of his conversation with Mr Myles on 20 November and the employment relationship was brought to an end by Mr Schliebs communication to Mr Midford that day.

Small Business Code

[188] Loadpro has indicated that it is a small business with less than 15 employees. The AMWU further submits that his dismissal was not consistent with the Small Business Fair Dismissal Code because Mr Midford was summarily terminated without explanation.Loadpro contended that Mr Midford resigned, however submits if he had been terminated it was for lack of work. As it is contended by the employer the termination does not pertain to conduct or performance, it has not sought to reply on the Code. In any event it is apparent given the nature of the termination if the Code does have any application it was not complied with.

Harsh, Unjust or Unreasonable

Section 387(a) – whether there was a valid reason for the dismissal

[189] The AMWU submitted that the reason given was not due to Mr Midford’s capacity or conduct and that it was due to a shortage of work, however the evidence shows that there was fabrication work that still needed to be done. The AMWU submitted that at the time of termination his job was still required to be performed by someone. It submitted his job was a welder and not a light/heavy fabricator and that the distinction made by Loadpro is artificial. Mr Midford evidence is that he has a range of different competencies.

[190] The question is whether Mr Midford was suitable to perform the ongoing work that was heavy welding. The AMWU submitted that the evidence shows that Mr Midford is a welder and the distinction between a light welder and heavy welder is one that has been created by the Respondent, and further Mr Midford has had prior experience in heavy welding. The AMWU submitted that Mr Midford was the only boilermaker when made a leading hand.

[191] The AMWU submitted the prototype was built at an external facility but was brought to Loadpro for re-working which was what Mr Midford was working on. The AMWU submitted that although Mr Schliebs gave evidence that welders need certification before being approved for structural welding, during cross examination he said there were two employees performing structural welding that did not have certification.

[192] The AMWU submitted that Mr Wolfe’s evidence was that the quality of the work in August 2020 did not meet the standards in relation to the pedestals and was the catalyst for taking him off that type of work. The AMWU questioned why Mr Wolfe did not let Mr Midford know about the test results, and pointed to the text message from Mr Dowse that shows the imperfections were not as calamitous as Mr Wolfe was claiming.

[193] The AMWU questioned, if Mr Midford’s work was so bad at the time as it is suggested, why were performance discussions not required. The AMWU suggested the work was not that bad, and now as part of this litigation Loadpro is attempting to cast aspersions on the quality of Mr Midford’s work as a way of justifying why he was not redeployed into structural welding roles.

[194] Loadpro submitted there was no ongoing employment and not enough work for two welders. It submitted there is currently no manufacturing work and no boiler makers required, which is not disputed.

[195] Loadpro submitted the type of welding Mr Midford was performing was not chassis welding and the Commission should accept that as far as available work that Mr Midford could complete that it had, as Mr Schliebs stated, that was another four days. It submitted that there was another welder that had a considerable amount experience in welding and was retained over Mr Midford.

[196] Loadpro submitted in response to the AMWU submission that the imperfections picked up in Mr Midford’s welding of the pedestals was ‘nit picking’ the Respondent argued that this was serious and significant structural welding.

[197] The AMWU submits that there was no valid reason for the dismissal related to the Applicant’s capacity or conduct.

[198] The AMWU notes that a valid reason must be ”sound, defensible or well-founded” while a reason which is ”capricious, fanciful, spiteful or prejudiced could never be a valid reason”. 3 Further, Mr Midford submits that terminating a person without offering a reason for the termination means there can be no valid reason for termination.

[199] It is apparent from the email of Mr R Schliebs on 20 November 2020 that the reason given was “no longer required for work”.

[200] The AMWU rejects the characterisation of Mr Midford’s work as a ‘light fabrication welder’. The AMWU says that the evidence before the Commission demonstrates that he was not hired as a ‘light fabrication welder’ and the tasks he performed could not be considered as ‘light fabrication’ welding; he had experience working on truck chassis and heavy fabrication, before and during his employment with Loadpro; and he had qualifications and relevant experience, primarily in heavy fabrication.

[201] While Loadpro submits that Mr Midford was aware of the business’ position as to any offer of ongoing employment, the AMWU submits that on the evidence there was no point during Mr Midford’s employment with Loadpro in which Loadpro formally discussed the business outlook or the prospects of his employment ceasing. Mr Midford states that this information was “not shared widely outside of [Loadpro’s] management group until a whole of staff meeting was convened recently, after [he] was terminated”.

[202] Further, the AMWU says that Loadpro at no time raised concerns about Mr Midford’s qualifications with him, or otherwise outlined what qualifications were required or what level of skill Mr Midford allegedly did not possess to perform the relevant roles. Mr Midford says “Moreover, the Respondent failed to even ascertain what qualifications [he] possessed”.

[203] Loadpro submits that the evidence before the Commission demonstrates that it did not have enough work to keep Mr Midford employed, and that if Mr Midford was dismissed the reason for dismissal was due to the lack of light fabrication welding work and not Mr Midford’s capacity or conduct during employment.

[204] Loadpro submits that the evidence demonstrates Mr Midford was aware of the Loadpro’s circumstances and the reduction in light fabrication welding work available to him in the weeks leading up to his employment ending. Further, Loadpro submits that the evidence shows that it had another vacant position around the time Mr Midford’s employment ended, however, he did not hold the requisite experience or level of skill to undertake the type of structural welding work required of the vacant position.

[205] I am satisfied that contrary to Loadpro’s submissions, the reason for dismissal did in fact relate to his performance. The evidence supports that conclusion that Mr Midford was engaged as a welder, not a light welder and his background indicated he had performed structural welding.

[206] The evidence supports the conclusion that Loadpro held genuine concerns about Mr Midford’s ability to perform structural welding given his failure of testing in connection with his welding on the 16 pedestals. However, it is clear that instead of addressing these concerns with Mr Midford in any meaningful way, it simply made the decision to confine the scope of his work to light welding rather than to embarrass him. It was only the evidence of Mr Wolfe that indicated in a fairly vague way that Mr Midford understood this, however when weighing the evidence overall I am not satisfied that it was ever properly explained to Mr Midford that in Loadpro’s mind he would not be permitted to do structural welding. The difficulty with Loadpro’s approach is it denied Mr Midford, an employee with a career as a welder, any proper opportunity to address the concerns over his capacity to do the job.

[207] That being the case, it was not appropriate for Loadpro to proceed to decide for itself that despite Mr Midford being a qualified welder, he was unable to perform a proportion of duties that fell within his job description without making clear to him Loadpro’s concerns and giving him an opportunity to address those concerns. By terminating him in the manner it did with welding work available to be performed, Loadpro terminated Mr Midford on the basis of his capacity. In the circumstances, given Mr Midford was given no opportunity to remedy the issues at the relevant time when there was structural welding work available Loadpro did not have a valid reason for dismissing Mr Midford as at 20 November 2020.

Section 387(b) – whether the Applicant was notified of the reasons for dismissal

[208] The AMWU submits that Mr Midford was not notified of any reason for his dismissal. The AMWU refers to the decision in Cathy (Yaqin) Chen v TIOBE Pty Ltd t/a TIOBE, 4 where Commissioner Bissett stated as to s.387(1)(b) of the Act:

“the reference to “that reason” can only be in reference to the reason in paragraph (a) above – that is, the valid reason for dismissal.”

[209] The AMWU submits that as there was no valid reason for the dismissal, as a matter of logic, Mr Midford could not have been and was not advised of a valid reason for his dismissal. Further, the AMWU submits that while the Respondent has asserted that the reason for Mr Midford’s dismissal was a “lack of light fabrication welding work”, Mr Midford submits that even if this was a valid reason, which he contests, then this was not communicated to him at the time of his dismissal.

[210] Loadpro submits that on the evidence, Mr Midford was notified in writing on 20 November 2020 that he was no longer required. The Respondent submits that while the reason for dismissal was not expressed in plain and clear terms, evidence from both Mr Midford and the Respondent demonstrates that Mr Midford’s conduct or capacity was not in question or of a concern to Loadpro at the time his employment terminated.

[211] Given my finding above it is apparent Mr Midford was not notified of the reason for his dismissal being his capacity to perform structural welding.

Section 387(c) – opportunity to respond to any reason related to capacity or conduct

[212] It is also clear Mr Midford was not given an opportunity to respond to the reason for termination.

Section 387(d) – support person

[213] There were no discussions with Mr Midford regarding the dismissal, and therefore Mr Midford had no opportunity to engage in discussions with Loadpro and to request a support person to be involved in discussions.

Section 387(e) – whether Applicant warned about unsatisfactory performance before dismissal

[214] The termination was related to Mr Midford’s capacity to perform structural welding, and is therefore related to unsatisfactory performance. It is clear Mr Midford was not warned about his welding on the pedestals. Loadpro admits that there was no discussion with Mr Midford that other employee would be retained instead of him.

Section 387(f) & (g) – degree to which size of the Respondent’s enterprise would be likely to impact on procedures followed in effecting the dismissal, degree to which absence of dedicated human resource management specialists or expertise in enterprise would be likely to impact on procedures followed in effecting the dismissal

[215] Loadpro submits that, at the time of Mr Midford’s dismissal, it was not a member of Chamber of Commerce and Industry Queensland (CCIQ) and did not have access or membership to any other employer association or external organisation with a human resource specialist advisory service. It further submits that due to its size and limited resources, it was not in a justifiable position to employ a human resource specialist.

[216] Loadpro submits that its limited knowledge of human resource practices would not have changed the outcome of Mr Midford’s employment, as his employment would have ended anyway as there was not enough light fabrication welding work to continue his employment.

[217] Loadpro submits that the limitations in knowledge and application of appropriate dismissal procedures by the Respondent was contributed to by the size of the business, the skill level of management employees, and the absence of dedicated human resource management specialists.

[218] In a further statement filed by Mr Myles, he confirmed that during the course of these proceedings, he rang the CCIQ with the intention of obtaining contact details of lawyers specialised in human resources/industrial relations, and was advised that CCIQ may be able to represent Loadpro for this matter.

[219] Mr Myles’ further statement included evidence that Loadpro employs three permanent technical staff members, being Mr R Schliebs, Mr J Schliebs and Mr Wolfe. He states that Mr R Schliebs, with the assistance of Mr Wolfe, is responsible for the day-to-day HR functions on site. Mr Myles said that as company secretary, he assists by providing draft employment agreements and other documentation as requested by Mr R Schliebs. He states that he works as a consultant on an ‘as required’ basis and has limited experience in HR. He says that to the best of his knowledge, Mr R Schliebs and Mr Wolfe have limited experience in HR as well.

[220] The AMWU submits that on the evidence, the Respondents manager, Mr R Schliebs, holds himself out as an accomplished businessperson, who since 1992 has founded three mining machinery companies and worked in all of them in a management role. Given Mr R Schliebs’ experience operating businesses like the Respondent’s enterprise, the AMWU submits that it is difficult to accept that the Respondent had limited knowledge of appropriate dismissal procedures.

[221] In support of this submission, Mr Midford filed a final witness statement providing that at the time of being interviewed for his original position with the Respondent, Mr R Schliebs had outlined his background, and Mr Midford understood he had previously owned and operated businesses of a similar nature to that of the Respondent. Mr Midford attached a copy of Mr R Schliebs’ resume as publicly available on Linkedin. 5

[222] Loadpro is a small business and evidence indicates the experience of managers was not in human resources.

(h) Any other matters that the FWC considers relevant

[223] Mr Midford has responsibilities as a father of young children and has not been successful in gaining other ongoing employment. Despite Mr Midford having worked as a welder throughout his working career, including in structural welding, Loadpro decided for itself not to address with him deficiencies in his performance, meaning he was largely unaware that his performance in structural welding was regarded so poorly by Loadpro.

[224] There was evidence from witnesses for Loadpro that they did not wish to raise the concerns because they did not wish to embarrass Mr Midford, and given Loadpro is a small business without internal human resources expertise, it is not difficult to image how this course of action came to be taken. That however does not make it right, and the obvious consequence has been that Mr Midford was at a loss as to understand how he came to be terminated on the basis of a lack of work when it was uncontested that there was ongoing structural welding work to be performed.

CONCLUSION ON HARSH, UNJUST OR UNREASONABLE

[225] I have weighed each of the considerations in section 387. Having concluded that the there was not a valid reason for dismissal at the time of termination, and having identified the other procedural flaws in the process that lead to termination, I am satisfied the termination was harsh, unjust or unreasonable.

Remedy

[226] The AMWU submits Mr Midford does not seek reinstatement but is seeking compensation as the relationship as irretrievably broken down. The Respondent also submits that reinstatement would be inappropriate. I am satisfied reinstatement would be inappropriate in this case. Accordingly, I must determine whether an order for compensation is appropriate.

Section 392(2)(c) - remuneration that the Applicant would have received, or would have been likely to receive

[227] Mr Midford said that despite various issues, he had no intention of leaving Loadpro as it was in close proximity to his home and he appreciated the flexibility regarding his hours of work.

[228] The AMWU therefore submits that on the evidence, Mr Midford would have continued in employment performing welding tasks until the winding up of the manufacturing workshop which it initially submitted would have been at the end of March 2021 or at least, until the remaining truck fabrication had been complete. In closing oral submissions, the AMWU submitted Mr Midford would have stayed with Loadpro for the up until around January 2020 when the work of boilermakers ceased within the company, being 9 ½ weeks. 39 hours times $40 hours a week is $1,560 x 9 ½ weeks is $14,820.

[229] Loadpro submitted that Mr Midford possibly could have remained in employment for a further four days. I am inclined to accept that evidence of Loadpro’s witnesses concerning the testing results on Mr Midford’s welding of the pedestals. The evidence was clear and consistent. The evidence was that none of the 16 pedestals were at an acceptable standard.

[230] There is a degree of speculation as to what would have occurred had the issue been properly addressed and Mr Midford been given an opportunity to address the deficiency in his work. On the one had there is evidence Mr Midford had performed structural welding work in previous employment and may well have been able to remedy the concerns. On the other hand the evidence of Mr R Schliebs and Mr Wolfe was clearly to the effect that they were not confident Mr Midford could perform the work on the chassis.

[231] There is also the evidence that Mr Midford was not happy in his employment. Whilst I have rejected the evidence of Mr Myles that Mr Midford resigned in the course of their conversation on 20 November, even on Mr Midford’s version of the conversation he was expressing deep frustration with Loadpro, and this was not the first time. I have not drawn the inference pressed by Loadpro that Mr Midford was packing up his property at the end of his shift on 20 November intending not to return.

[232] Taking into account all of the uncertainties set out above I am not confident that Mr Midford would have remained in employment for any longer than another four weeks. $1,560 x 4 weeks equals $6,240.00.

Section 392(2)(d) – Applicant’s efforts to mitigate the loss suffered because of the dismissal

[233] Mr Midford’s evidence is that, since his employment with the Respondent ceased, he has applied for a wide range of jobs however, he has been unable to acquire new employment. I do not intend to make any reduction to the amount of compensation on the basis of a failure to mitigate.

Section 392(2)(e) - any remuneration during period between the dismissal and the making of the order for compensation & Section 392(2)(f) - income reasonably likely to be so earned during the period between the making of the order for compensation and the actual compensation

[234] Mr Midford did not earn other income in the four weeks period after his termination.

Section 392(2)(a) - effect of the order on the viability of the Respondent’s enterprise

[235] Loadpro submits that any order for compensation will affect the viability of its enterprise, noting it will cease to operate by the end of March 2021. The AMWU submits that the Loadpro has not provided any evidence to substantiate this claim. As to its submissions that operations will cease by March 2021, the AMWU notes that on its own evidence Mr R Schliebs has provided that once the manufacturing is completed Loadpro will be setting up a small office to maintain, monitor and support the prototype trucks.

[236] I have been satisfied on the available evidence that an order for compensation of four weeks’ pay to Mr Midford will not affect the viability of Loadpro and make no further deduction to the amount of compensation on that basis.

Section 392(2)(b) - length of the Applicant’s service with the Respondent

[237] I make no further deduction on the basis of Mr Midford’s length of service.

Section 392(2)(g) - any other matter that the FWC considers relevant

[238] There are no other matters that are relevant for assessing compensation.

CONCLUSION ON COMPENSATION

[239] An amount of $6,240.00 does not exceed the compensation cap. I have decided to issue an order that Loadpro Australia Pty Ltd pay to Mr Gary Midford the amount of $6,240 gross taxed according to law and 9.5% superannuation compensation based on that amount, within 14 days of the date of this decision. An order will be issued separately and concurrently with this decision to that effect.

COMMISSIONER

Appearances:

Mr T. Bunnag of the AMWU appearing on behalf of the Applicant.
Mr R. Hall-Boman of the Chamber of Commerce and Industry Queensland appearing on behalf of the Respondent.

Hearing details:

2021,
Brisbane by video:
March 8 and 9

Printed by authority of the Commonwealth Government Printer

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 1 [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200.

 2   Miss Karen Whirisky v DivaT Home Care [2021] FWC 650 at [77].

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

 4   [2019] FWC 1282 at [125].

 5   Final witness statement of Mr Gary George Midford filed 24 February 2021.