Kirsten Garousse v Remondis Australia Pty Ltd - [2025] FWC 1750

[2025] FWC 1750

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kirsten Garousse
v

Remondis Australia Pty Ltd

(U2024/10390)

COMMISSIONER MATHESON

SYDNEY, 20 JUNE 2025

Application for an unfair dismissal remedy – dismissal not unfair – application dismissed.

Kirsten Garousse (Applicant) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from the employment with Remondis Australia Pty Ltd (Respondent). The Applicant seeks reinstatement and/or compensation.[1]

When can the Commission order a remedy for unfair dismissal?

Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

When has a person been unfairly dismissed?

Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Background

The uncontested factual background to the matter is as follows:

The Applicant commenced working for the Respondent on 5 June 2023 as a bin delivery driver.
On 16 July 2024 the Applicant was transporting bins in a flat bed truck along the M2 motorway in Sydney (M2) when two bins dislodged from the truck.
No damage was caused to any third parties.
The Applicant promptly reported the incident and she and her colleague were able to safely retrieve the bins.
On 17 July 2024 the Applicant received a letter (Allegation Letter) notifying her that she was suspended from work and that an investigation would be conducted in relation to the incident.
The Allegation Letter made the following allegations:
othat on 16 July 2024:
§the Applicant loaded a truck with 11 x 1100 litre bins, 18 x 660 litre bins and 10 x 240 litre bins;
§these bins were only secured around the middle section, and not over the top of the lids, and had been stacked up on one another;
§the Applicant was driving that truck on the M2 back to the St Mary’s yard at 92 kilometres per hour and at this time two 204 litre bins were ejected from the truck and flew across the M2 into oncoming traffic, placing members of the public at significant risk of injury (Allegation 1);
othat the Applicant:
§was aware of the loading restraint requirements and breached the Respondent’s safety policies; and
§did not follow procedures that the Applicant was aware of and had been informed of in the past due to a previous incident (Allegation 2).
The Allegation Letter requested that the Applicant provide a written response by 19 July 2024 and the Applicant responded on 18 July 2024.
On 5 August 2025 the Applicant received a letter (Show Cause Letter) which, by way of summary, stated that certain allegations had been substantiated and requested a written response from the Applicant as to why her employment should not be terminated.
On 8 August 2024 the Applicant provided a detailed response in writing (Response to the Show Cause Letter).
On 15 August 2024 the Applicant’s employment was terminated and she received a termination letter (Termination Letter).

The hearing

There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act).

The hearing took place across two days and at the hearing the Applicant was represented by the Transport Workers’ Union (TWU) and the Respondent was represented by Ai Group.

Witnesses

The Applicant gave evidence on her own behalf, filing a witness statement and reply statement, and the following witnesses also gave evidence on her behalf:

Gregory Hurst (Hurst), the Applicant’s colleague who assisted her on the day of the incident;
Luke Ikladios (Ikladios), an organiser for the TWU.

The following witnesses gave evidence on behalf of the Respondent:

Alana Green (Green), the Respondent’s Operations Supervisor and Applicant’s direct supervisor;[2]
Funaki Tuitupou (Tuitupou), the Respondent’s Operations Manager;
Conan Hooking (Hooking), the Respondent’s State Manager -South Australia and Acting General Manager – New South Wales;
Gavin Whitten (Whitten), the Principal Engineer at Engistics Pty Ltd (Engistics), a consulting firm that specialises in load restraint, logistics, engineering and safety;
Snezana Herve (Herve), the Respondent’s HR Specialist (Business Partner);
Brad Williams (Williams), the Respondent’s Branch Manager St Mary’s.

Submissions

The Applicant filed submissions in the Commission on 18 November 2024 and the Respondent filed submissions in the Commission on 9 December 2024. Final written submissions were filed by the Applicant on 23 December 2024.

Has the Applicant been dismissed?

A threshold issue to determine is whether the Applicant has been dismissed from their employment.

Section 386(1) of the FW Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.

I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.

Initial matters

Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b)   whether the person was protected from unfair dismissal;
(c)   whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d)   whether the dismissal was a case of genuine redundancy.

Was the application made within the period required?

Section 394(2) requires an application to be made within 21 days after the dismissal took effect.

It is not disputed and I find that the Applicant was dismissed from her employment on 15 August 2024 and made the application on 2 September 2024. I am therefore satisfied that the application was made within the period required in subsection 394(2).

Was the Applicant protected from unfair dismissal at the time of dismissal?

I have set out above when a person is protected from unfair dismissal.

Minimum employment period

It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.

It was not in dispute and I find that the Applicant was an employee, who commenced their employment with the Respondent on 5 June 2023 and was dismissed on 15 August 2024, a period in excess of 6 months.

I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.

Application of an enterprise agreement

It was not in dispute and I find that, at the time of dismissal, the REMONDIS St Marys Enterprise Agreement 2021-2024 applied to the Applicant’s employment.

I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.

Small Business Fair Dismissal Code

The Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.

Was the dismissal a case of genuine redundancy?

It was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.

I am therefore satisfied that the dismissal was not a case of genuine redundancy.

Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.

Was the dismissal harsh, unjust or unreasonable?

Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a)   whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b)   whether the person was notified of that reason; and
(c)   whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)   any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)   if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)    the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g)   the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h)   any other matters that the FWC considers relevant.

I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[3]

The detailed background and context to the matter is set out below following which I set out my consideration of each of the matters in s.387 below.

Heavy Vehicle National Law and licensing requirements

Mr Williams gave evidence that the Applicant was required to hold a heavy vehicle licence during her employment as a bin delivery driver for the Respondent and that she held such a licence.[4]

Mr Tuitupou gave evidence that:

there are several tests that an individual must pass to get a heavy vehicle licence which generally include tests on the Heavy Vehicle National Law 2013 (NSW)(HVNL), chain of responsibility and other transport laws;
a heavy vehicle licence holder is also required to pass practical tests and from his experience he understood these to include demonstrating proper restraint of a load;[5]
heavy vehicle licence holders are required to adhere to the chain of responsibility and transport laws like the HVNL and must ensure their load is adequately restrained;[6]
breaching HVNL and other laws relating to holding a heavy vehicle licence can result in prosecution and/or substantial penalties ad that having an unsecure load is an example of a breach.[7]

Mr Williams attached a copy of the Transport for NSW Heavy Vehicle Driver Handbook (Heavy Vehicle Driver Handbook) to his statement which states that it:

covers the main road rules and requirements for driving heavy vehicles on New South Wales roads; and
“aims to help you get your heavy vehicle licence and to drive safely”;
the publication must be read along with the Road User Handbook and Load Restraint Guide to prepare for the heavy vehicle driver knowledge test.[8]

In the section titled ‘Pre-departure checks’ the Heavy Vehicle Driver Handbook:

states “All drivers are legally responsible for the safety and roadworthiness of the vehicles they drive. Before driving any vehicle you must ensure it is safe and roadworthy”;[9]
includes a checklist of areas that need to be covered in a pre-departure safety check including “Load properly secured (trucks)”.[10]

The Heavy Vehicle Driver Handbook also states:

“It is the responsibility of the driver to ensure the vehicle does not exceed dimension or mass limits and that the load is appropriately restrained”.[11]
“When moving, a vehicle’s load can shift from forces caused by changes of speed, braking, accelerating, cornering, travelling over uneven road surfaces, and slopes. Load shift needs to be managed to prevent danger to any person or damage to any property”.[12]
“To carry a load safely and prevent danger to any person, or damage any property you must:
·choose a suitable vehicle
·position the load correctly
·use suitable and adequate restraint equipment
·use appropriate driving methods”.

The Heavy Vehicle Driver Handbook then goes on to provide information about securing the load, stating that the information is a guide only and that detailed information is available in the Load Restraint Guide.[13] The Heavy Vehicle Driver Handbook states:

‘The way your vehicle is loaded is very important for your safety and for the safety of others. You are legally responsible for your load and any damage or injury it may cause.
Driving over bumps in the road, around curves and corners, and accelerating and braking can cause your load to move. The force of an impact can move a load that is unstable or not properly secured and you can lose control of your vehicle.
The weight of your load should also be evenly distributed so you can control your vehicle properly….
Loads must be secured to prevent:
·any part of the load hanging over or sticking out of the vehicle in a way which could hurt someone, damage property or cause a hazard to other road users
·any part of the load being dislodged or falling out of the vehicle.

It is against the law to drive a vehicle where the load is not secured. You can stop your load from moving by:
·Lashings secured to the vehicle chassis, including:
-   cross bearers
-   outriggers
-   tie rails and similar arrangements
·Blocking arrangements such as:
-   load racks
-   headboards
-   bulkheads
-   stakes in pockets
-   transverse beams
-   shoring bars
-   chocks, dunnage etc
·containing the load by using a truck with solid sides and a tailgate, a tanker or a shipping container;
·covering loose loads such as sand or gravel with sheets or tarpaulins.’[14]

The Heavy Vehicle Driver Handbook then goes to provide guidance about these methods.

The Applicant held a Heavy Rigid (HR) licence. The Heavy Vehicle Driver handbook indicates that to get this licence the driver needs to:

have a class C licence or equivalent for two years or more;
pass a knowledge test;
pass an eyesight test; and
pass either a driving test or Heavy Vehicle Competency Based Assessment (HVCBA) completed with a Registered Training Organisation.[15]

During cross examination the Applicant confirmed that in order to obtain her HR licence she needed to:

satisfy a knowledge test[16] which she believed involved knowledge of the Heavy Vehicle Driver Handbook;[17] and
undertake competency test[18] based on the Heavy Vehicle Driver Handbook.[19]

During cross examination the Applicant was asked whether she was assessed as to her ability to operate trucks including the loading of trucks and the Applicant responded that she was not.[20] The Applicant indicated that she did not recall being assessed on loading a vehicle.[21] However the Applicant:

was asked whether she was required to familiarise herself with the Heavy Vehicle Driver Handbook and Load Restraint Guide that it referred to in order to prepare for her assessment and she confirmed that she was[22] and that this was something she was required to be familiar with in order to get her licence;[23]
acknowledged that the Load Restraint Guide was also something that she was required to be familiar with;[24]
acknowledged that she had a legal obligation as a heavy vehicle driver that ‘loads must be secured to prevent any art of the load being dislodged or falling out of the vehicle’;[25]
acknowledged that ‘it is against the law to drive a vehicle where the load is not secured;’[26] and
acknowledged that as the driver of a truck, she was legally responsible for ensuring that the load was properly secured against being dislodged or falling out of the vehicle.[27]

Training and responsibilities in relation to driving and loading

The Applicant gave evidence that before 16 July 2024 she had received some theoretical training on obligations with respect to restraining loads.[28] However the Applicant said she did not get any practical experience in strapping loads and had to learn this from other colleagues who did not know what the correct procedure was.[29]

Induction and policies/procedures

Mr Williams gave evidence that the Applicant completed an induction program and received a comprehensive introduction into the Respondent’s policies and procedures.[30] Mr Williams attached a copy of the Applicant’s induction program to his statement.[31]

Also attached to Mr Williams statement was a Respondent branded document entitled ‘Load Restraint Minimum Standard’ (Load Restraint Standard) that he said applied to the Applicant’s employment with Respondent.[32] The Load Restraint Standard states that:

its purpose “is to ensure the management of load restraint related risks are addressed using the appropriate mitigation controls”; and
it “applies to all employees who are accountable with control or influence of vehicle loading and unloading under Chain of Responsibility”.

The Applicant said she did not recall ever receiving a copy of the Load Restraint Standard during her employment.[33]

During cross examination Mr Williams was taken to the Load Restraint Standard and it was put to him that it did not explicitly mention the tying down of bins or strapping down of bins.[34] Mr Williams’ evidence was that there were a number of areas that refer to the requirement and referred to a diagram at part 3.8 of the Load Restraint Guide that referred to the weight of load and tie-down lashings as a type of restraint.[35] It was put to Mr Williams that the load depicted was not a bin and that the Respondent is ‘about bins’ to which Mr Williams responded:

‘Well, yes, it is about bins, but, to be fair, it’s also about many other things, so Remondis isn’t just a bin company. Remondis engages in all sorts of different services, including package waste, liquid tankers, industrial services and many, many other things, so it doesn’t specifically deal with bins but it’s specifically dealing with restraint of loads.’[36]

It was put to Mr Williams that the Applicant was undertaking work that was normally done by the Respondent, being transportation of bins, and Mr Williams agreed.[37] Mr Williams conceded that Load Restraint Standards did not specifically talk about bins.[38] It was put to Mr Williams that the wheels of the bins would affect the friction point if loaded on a truck to which Mr Williams responded:

“I don’t believe so given the weight of the bins. These were empty bins and strapping over the top of those bins would have been sufficient to restrain them.”[39]

Mr Williams also attached a copy of the Respondent’s Driver and Operator Manual[40] and the Respondent’s Health and Safety Policy.[41] Mr Williams gave evidence that on 29 August 2023 the Applicant signed a document sign-off sheet confirming she had re-read and understood the contents of these documents.[42] During cross examination the Applicant confirmed that the Driver and Operator Manual had been provided to her[43]

The Driver and Operator Manual indicates it is for Driver Operators, being a person who drives or operates an item of plant or equipment, including a truck.[44] In relation to load restraint, part 4.4.6 of the Driver and Operator Manual states:

“4.4.6 Load Restraint
When transporting loads on or in vehicles or trailers, Drivers/Operators must ensure that they are correctly covered and securely restrained.

It is the responsibility of the driver to ensure:
·The vehicle is suitable for the type of load
·Restraint equipment is in working condition before starting a trip
·The load is correctly positioned on the vehicle
·Dunnage is correctly chosen, positioned and restrained on the vehicle
·Unloading does not present any danger to anyone
·Weight on steering, cornering and braking is taken into consideration
·The load remains properly restrained throughout your shift
·Bins are secured to the vehicle as per the National Load Restraint Guide

For correct load restraint information please see the Load Restraint Guide
available from the NTC & NHVR web page, via the BMS index, or your state
Road Transport Regulator. Ask your Supervisor/Manager for assistance.”

The Load Restraint Guide[45] referred to in the Driver and Operator Manual is a document published by the National Transport Commission which provides detailed guidance in relation to load restraint. The Applicant noted there is no specific guidance for securing bins in the Load Restraint Guide.[46] The Applicant also noted that the Load Restraint Guide states:

“The Load Restraint Guide provides examples of how to restrain loads to meet those forces. It is intended to be used as a guide only, as it is impossible to be prescriptive for the many different types, weights and shapes of loads that can be transported.”[47]

Engistics training

Mr Whitten gave evidence that:

as the Principal Engineer for Engistics, he develops load restraint documentation to be presented at training sessions; and
he managed logistics engineer Nathan Roberts (Roberts) who is no longer employed by Engistics;
when Mr Roberts first started at Engistics he shadowed Mr Whitten at training sessions Mr Whittem presented on load restraint;
he trained Mr Roberts on how to conduct the load restraint training he performed during his employment at Engistics;
by December 2023 Mr Roberts had been employed at Engistics for around 5.5 years and had extensive experience in developing load restraint systems and delivering load restraint training.[48]

Mr Whitten gave evidence that he made arrangements with the Respondent for Mr Roberts to conduct onsite load restraint training and that this took place on 6 December 2023.[49]

Mr Whitten’s evidence was that after an employee from Engistics performs a load restraint training session, they save the slides presented at the session in a file accessible to him and a copy of the slides used by Mr Roberts on 6 December 2023 (Engistics Slides) was attached to Mr Whitten’s statement.[50] Mr Whitten’s evidence was that after the training session and at the Respondent’s request, Engistics supplied the Respondent with a condensed version of the Engistics Slides (Engistics Summary) covering key content and risks.[51] Mr Whitten Said the condensed version protects Engistics’ intellectual property rights.[52]

Mr Whitten’s evidence was that:

one of the purposes of load restraint training of the nature provided for the Respondent on 6 December 2023 is to train employees on how to restrain a load having regard to their obligations under the HVNL;[53]
the Engistics Slides contained specific content that he is familiar with and trained Mr Roberts on;
the training session would nominally run for up to 4 hours.[54]

During cross examination Mr Williams indicated that the Engistics training had been organised as a corrective action in response to an incident on 24 July 2023[55] involving a palleted load of cardboard.[56] Mr Williams’ evidence was that on 6 December 2023 the Applicant attended the load restraint training conducted by Engistics and that he attended the same training session.[57] The Applicant received a certificate of attendance in respect of this training.[58]

Mr Williams’ evidence was that the Engistics training was thorough[59] and included discussion of:

the requirements that heavy vehicle drivers must follow under the Load Restraint Guide;
the forces that could cause a load to shift;
the importance of using tactics like blocking and applying downward force to ensure a load is properly restrained, including different types of webbing straps that should be used to restrain different loads.[60]

The Applicant disputed that the Engistics training was comprehensive gave evidence that there was no prescribed method within the training on how to restrain wheelie bins.[61] The Applicant also submitted that if 20 minutes had been spent on each slide as claimed by Mr Williams the meeting would have gone for over 9 hours as there were 88 slides.[62]

The Applicant gave evidence that when the question was asked about how to restrain wheelie bins it was noted that plastic bins ought not be restrained with strapping as they could be damaged by the tie-downs.[63] In particular, the Applicant said that Mr Roberts:

advised that it may not be ideal to strap down plastic bins as this would damage the lids;
advised that wheels (on larger bins) would make it difficult to obtain appropriate friction; and
suggested some engineering controls that could be implemented to better restrain or prevent bins from shifting during transport.[64]

During cross examination it was put to Mr Williams that during the Engistics training there was a specific focus on strapping down 204 litre bins and that it was said that it was preferable not to strap these down but to use engineering controls. [65] However Mr Williams’ evidence was that this was not the case.[66]

Mr Tuitupou, the Respondent’s Operations Manager at St Marys, was also present during the training and was asked whether there was any discussion about strapping bins and he responded “…pretty much just really securing the load regardless of what type of stuff it is”.[67] Mr Tuitupou also said there was a “clear direction of securing the load with straps”[68] however his evidence suggests this was in relation to securing loads generally and not bins.

Toolbox talk

Mr Tuitupou gave evidence that:

he regularly provides training to employees holding heavy vehicle licences on their obligations under heavy vehicle laws;
he conducts a toolbox talk approximately once a month for truck drivers and other employees;[69]
he recalled conducting a toolbox talk in early 2024 about the ‘chain of responsibility’;
when he conducts toolbox talks he provides employees with a summary of the topic to be discussed.[70]

Mr Tuitupou provided a copy of the document he provided to employees when conducting the ‘chain of responsibility’ toolbox talk[71] entitled ‘Toolbox Topic #05 Chain of Responsibility’ (Toolbox Document). This was also attached to the Applicant’s statement.[72]

The Toolbox Document described the responsibilities of a Driver, Loader and Operator/manager or supervisor.[73] The Toolbox Document stated that as a Driver:

‘You are required to abide by speed limits and drive to conditions’.
‘Make sure your vehicle does not exceed mass limits.’
‘Do not modify any equipment fitted to your vehicle’.
‘Drive as per your required hours with all required breaks taken’.
‘Keep the records of our work hours and rest breaks.’
‘Do not drive while you are fatigued’.[74]

The Toolbox Document stated that as a Loader:

‘Make sure the load does not exceed the mass limits.’
‘Load is placed so that it is not unstable, unsafe, move or fall off the vehicle.’[75]

Mr Tuitupou said that in the toolbox talk he:

reiterated to employees their obligations under the chain of responsibility; and
explained to employees that the chain of responsibility is a concept under Heavy Vehicle National Law (HVNL) which, in basic terms, provides that all individuals in the transport supply chain must take reasonable steps to ensure that breaches of the HVNL do not occur.[76]

Mr Tuitupou said that:

toolbox talks only provide a summary of obligations under HVNL;
he would often have a range of drivers in toolbox talks who undertake different duties;
where the Toolbox Document referred to ‘loaders’ and ‘drivers’ it was to provide a summary to employees of general obligations they have.[77]

‘Loader’ and ‘Driver’ responsibilities

Mr Tuitupou said that:

an employee could be both a ‘loader’ and a ‘driver’ depending on their duties;
most of the Respondent’s drivers do not do any loading because they are tasked with driving a waste collection truck, operating vehicle-mounted equipment to pick up kerbside bins, empty them directly into the truck and replace them in their original location;[78]
this was not the Applicant’s role but rather the Applicant’s role was to drive a truck for collection of empty bins;
the Applicant’s duties included loading empty bins onto her truck using the lift on the tailgate and as a driver she was responsible for the load, even if she chose to have someone else assist with the loading.[79]

In relation to the incident on 16 July 2024 dealt with further below, the Applicant said it was her understanding that her role was that of Driver and Mr Hurst’s role was that of Loader and that Mr Hurst had a lot more loading experience than she did.[80]

Mr Hurst

Mr Hurst said he had previously worked in transport for 15 years doing regular strapping and loading but was not trained by anyone from the Respondent in relation to strapping.[81]

Safety concerns raised by the Applicant in May 2024

The Applicant was a health and safety representative.[82] The Applicant gave evidence that on 15 May 2024 she had a discussions with Mr Williams in which she raised concerns about safety controls.[83] The Applicant said that while the discussion was primarily about gates, it shifted into strapping loads and she recalled that it was discussed that bins were to be roped to the headboard and strapping over the top was only in relation to pallets.[84]

Mr Williams provided a different account of events and gave evidence that:

in or around May 2024 the Applicant raised a concern about the gates on the flatbed truck she used to deliver empty bins;
the Applicant’s concern was that the gates were not engineered correctly to effectively restrain the empty bins and that this may result in an incident on the road;[85]
on 15 May 2024 he met with the Applicant and inspected her vehicle with the Workshop Manager who, after examining the gates, advised that the gates were in a sufficient and serviceable condition.[86]

Mr Williams’ evidence was that most loads on the Applicant’s truck would be under one tonne and even where the Applicant may have had a heavier load due to delivering full bins, the load would still be well under the capacity of the truck and would be considered a light load.[87] Mr Williams said he reviewed the Load Restraint Guide which states that load rated gates are not required for relatively light loads[88] and told the Applicant that she must also ensure that the load of empty bins is strapped over the top and around the back to prevent movement forward, backwards, as well as up and down and that it was not sufficient for her to rely on the gates of the vehicle.[89]

Mr Williams said he completed a hazard report (Williams Donesafe Report) documenting this discussion immediately after it occurred and provided the Applicant with a copy as well as an excerpt from the Load Restraint Guide.[90] During cross examination the Applicant acknowledged that she received the excerpt from the Load Restraint Guide and a copy of the Williams Donesafe Report.[91]

During cross examination the Applicant said she agreed ‘holistically’ with what had been documented by Mr Williams but said there were two separate discussions for pallets and bins and indicated that Mr Williams told her to strap pallets over the top and bins around the centre so as not to cause them damage.[92] During cross examination Mr Williams said:

“We never had any discussion as to the best of my knowledge about pallets whatsoever and in actual fact I would find this quite interesting because, as you’ve mentioned yourself, that, you know, the person’s role was about transportation of bins. The likelihood of Kirsten transporting pallets would have been extremely rare, if at all”.[93]

When pressed about whether it still would have occurred Mr Williams said:

“It’s hard to say. I would think probably not, to be honest, but it’s – I’d be prepared to be proven wrong, but Kirsten’s role is as a bin delivery driver or was as a bin delivery driver.”[94]

When asked whether some trucks would transfer pallets Mr Williams said:

“Sure, but I find it hard to believe. I mean, I know the conversation that we had, and the conversation was not about pallets, and had it been about pallets, I can’t believe we have spent very much time on it given the fact that it would represent less than 1 per cent potentially of the work that she was doing. My concern was that the strapping of the bins was being done adequately.”[95]

When further pressed Mr Williams said:

“There was no discussion in relation to pallets whatsoever. I absolutely refute that there was a discussion in relation to pallets, and it is not something that would even be relevant to the sort of work that Kirsten typically did.”[96]

During cross examination it was put to Ms Green that the Williams Donesafe Report only mentioned strapping over of loads and not bins specifically and Ms Green replied:

“Well, she only – she only delivers bins. She doesn’t deliver any type of other load. That’s her role, that’s her duty. So there’s no pallets in her case.”[97]

When it was put to Ms Green that she could not say whether the Applicant has only delivered bins she responded stating that the majority of the Applicant’s responsibility is delivering bins[98] although she appeared to be unable to confirm whether the Applicant would be delivering pallets in some circumstances.[99]

During cross examination the Applicant was taken to the excerpt from the Load Restraint Guide which states:

“Use braced, tied-down unrated side gates for sideways restraint only if the load is relatively lightweight and in a rigid and stable single layer – Figure 351”.[100]

It was put to the Applicant that if she had a load that didn’t meet those criteria, the gates would not be sufficient to which she replied “That’s what it states, yes”.[101] The Applicant agreed that a gate would not be sufficient for stacked loads and that this was the nature of the load on the incident on the M2.[102]

During cross examination Mr Williams indicated that during the conversation on 15 May 2024 the Applicant had led him to the understanding that she felt the side gates were the only restraint that needed to be applied to the bins and that he wanted to demonstrate to the Applicant that this was not correct and that she still needed to strap them.[103] Mr Williams was taken to the statement in the Williams Donesafe Report that stated:

“Kirsten expressed concerns over the conditions of the gates on the flatbed truck she uses to deliver MGB’s and that this may lead to an incident with a load’.[104]

Mr Williams was pressed about this and gave evidence that the Applicant suggested that there was a problem with the condition of the side gates because she felt they were the only load restraint that was required, and he addressed both the issues that:

· they were not engineered gates and that they were not suitable to be used as the only form of load restraint; and
· that bins had to be strapped over the top.[105]

Additional straps

During cross examination it was put to the Applicant that she did not raise any objection that there would be harm caused to the bins by strapping over the top of them and the Applicant insisted that she did raise this objection.[106]

It was also put to the Applicant that the only thing she raised was that she did not have enough straps to which she replied:

“I did not have any straps in the truck. They were borrowed from the warehouse when I picked up palleted goods”

It was then put to the Applicant that eight straps were purchased and provided to her however the Applicant’s evidence was that she was only provided with three straps and did not have any straps prior to this.[107]

Mr Williams also gave evidence that following this conversation additional straps were ordered and provided to the Applicant to restrain her loads and annexed an invoice for these to this statement.[108] The invoice shows that the purchase was made on 16 May 2024, the day following the discussion between Mr Williams and the Applicant. During cross examination Mr Williams indicated that during the May meeting the Applicant advised him that she only had a small number of straps, which he thought totalled three, that the Respondent ordered an additional eight and he was advised that these were provided to the Applicant.[109]

The Applicant’s injury

The Applicant gave evidence that she had previously suffered a shoulder injury which meant her duties were limited by the restrictions as set out in her Recover at Work Program.[110]

A copy of the Recover at Work Program was filed with Ms Green’s statement and states that as per the final Certificate of Capacity dated 26 June 2024, the Applicant’s permanently modified capacity is:

Lifting 20 kilograms to shoulder height on an occasional basis
Lifting 16 kilograms to shoulder heigh repetitively
Push/pull as tolerated
No overhead lifting.[111]

The Applicant’s Recover at Work Program also records the Applicant’s duties as comprising 80 percent truck driving and 20 percent loading/unloading bins.[112]

During cross examination Ms Green acknowledged that the Applicant still had restrictions lifting above her shoulders.[113] When Ms Green was questioned about whether the Applicant would need to lift her hand above her shoulders to lift a bin Ms Green responded:

“She’s not required to lift a bin, though. All the bins have wheels and they are not required to be stacked. She can do them in single loads. So that’s why we deemed her still fine to do the role and it was never a pressure to stack bins. Singular is fine.”[114]

Loading bins onto the truck on 16 July 2024

On 16 July 2024 the Applicant was tasked with transporting bins in a truck via the M2.[115]

Ms Green, the Applicant’s supervisor, gave evidence that the Applicant was assigned to collect approximately 150 empty bins, located in or around Sydney for an event called ‘Bastille Day’,[116] and that the tasks the Applicant was required to undertake on 16 July 2024 included:

loading empty bins on the truck using the lift on the tailgate of the truck;
properly loading and strapping the bins; and
delivery of the bins.[117]

The Applicant gave evidence that on the day of the incident some of the bins were full including two 1100 litre bins and six 240 litre bins.[118] The Applicant noted that her Recovery at Work Plan outlines restrictions in both lifting and push-pull.[119]

Ms Green’s evidence was that:

these tasks could be undertaken by the Applicant within her work restrictions; and
the Applicant was not required to repetitively lift bins herself, as the lift on the tailgate performs this function;[120]
in the unlikely event that a bin was full or the Applicant could not complete a task because of her work restrictions, it was expected that the Applicant would seek assistance from those with her.[121]

Ms Green’s evidence was that:

where there are big events like ‘Bastille Day’ she would generally assign a yard hand or another employee to assist the driver with the workload;
she had assigned a yard hand, Mr Kurt Garousse (Garousse), to assist the Applicant to collect the bins;
the Applicant called her during her shift to inform Ms Green that Mr Hurst would be assisting her with collecting the empty bins as he had finished his shift early.[122]

Assistance from Mr Hurst

The Applicant’s evidence was that as a result of her shoulder injury and related restrictions she was assisted in her duties by Mr Garousse in the morning and Mr Hurst in the afternoon.[123] The Applicant said she understood that Mr Garousse and Mr Hurst were to assist her in loading and unloading the bins and making sure that the bins were properly restrained.[124] The Applicant disputed that she organised Mr Hurst to assist her but rather, gave evidence that Mr Hurst called the Applicant, advised he had finished work early and had permission from his supervisor to assist the Applicant and the Applicant agreed.[125]

Ms Green said that the Applicant was not provided with assistance from Mr Garousse or Mr Hurst because of her work restrictions[126] although in cross examination said that the Applicant had drivers to help her on several occasions and that Mr Garousse normally helped the Applicant in the yard.[127] During re-examination Ms Green’s evidence was Mr Garousse is not a heavy vehicle driver and is not required to be trained in load restraint and that his role is for “purely for extra weight, extra hand when there is extra bins”.[128]

The Applicant’s evidence was that prior to her injury, she only had assistance for training and ride-alongs, which are occasions where a second person is in the truck when no work has been allocated to them for the day.[129]

Mr Hurst gave evidence that on 16 July 2024 he assisted the Applicant in loading bins as she was on restricted duties.[130] Both the Applicant and Mr Hurst disputed Ms Green’s assertion that Mr Hurst was assisting the Applicant because his truck registration had expired.[131]During cross examination Mr Hurst’s evidence was that he was not assigned to load the truck by the Respondent and had volunteered to help the Applicant.[132] During cross examination Ms Green appeared to accept that Mr Hurst may have raised his hand to assist the Applicant.[133] Ms Green’s evidence was that the Applicant called her not long after she left the yard to let her know that Mr Garousse and Mr Hurst had swapped places.[134]

Loading the bins into the truck on 16 July 2024

Mr Hurst helped stack the bins in the truck.[135] During cross examination Mr Hurst’s evidence was that the 240 litre wheelie bins were stacked two high[136] and that the height of the top layer of the bins was marginally above the loading board on the truck[137] and slightly above the level of the gates on the side of the truck.[138]

During cross examination it was put to Mr Hurst that he didn’t strap over the top of these bins to which he responded that he did.[139] Mr Hurst said he fastened three straps over the top of the bins and these were the only straps available in the truck at the time.[140] Mr Hurst said that at that time he understood this was the proper practice.[141]

It was put to Mr Hurst that there were more than three rows of bins and that he didn’t strap each row of bins to which he indicated he had never said he strapped each row of bins.[142] It was then put to Mr Hurst that there were bins sitting on top of the layer of bins beneath them that were not held in by anything to which he responded “Correct”.[143]

Mr Hurst gave evidence that the Applicant undertook a visual inspection.[144]

In relation to inspecting the load, the Applicant gave evidence that she was looking to ensure the load was ‘blocked’, meaning that there were no gaps in the load, and she also investigated the conditions of the gates as she had previously noted incidences of the gates popping out.[145]

The incident on the M2 on 16 July 2024

Mr Hurst and the Applicant said that during the transport of the bins and in gusty conditions, two 240 litre bins flew off the truck into oncoming traffic on the M2.[146] The bins did not collide with any vehicle.[147]

At the time of the incident the Applicant was driving under the speed limit, was not under the influence of drugs or alcohol and was not fatigued.[148]

Mr Hurst said he believed this incident happened due to an unforeseen shift in the loads and the gusty conditions.[149] The Applicant said she believed that a gust of wind was caught under the bin lids which lifted them up and over the gates and that at that time she was not aware there was strapping over the truck.[150]
Ms Green said it was not a ‘gusty’ day on 16 July 2024 and the weather on that day was unremarkable.[151] The Applicant maintained that it was a particularly gusty day and she had her hair tied up for this reason.[152]

Ms Green said that at around 1.10pm on 16 July 2024, she answered a call from the Applicant who explained that whilst driving on the M2 westbound from the city she noticed one 240 litre bin fly out of the cage of the trick onto the road and that roughly 20 seconds later a second bin flew out of the truck and bounced onto the road.[153] Ms Green said she asked the Applicant whether she had strapped the bins down and the Applicant said words to the effect of “not over the top, no”.[154] Ms Green said she told the Applicant she would call her back shortly as Ms Green needed to consult with Mr Williams about the incident.[155]

The Applicant said that while she originally believed that the bins were not secured over the top, and made disclosures about that, she now believes Mr Hurst did fasten the top of the bins.[156]

Mr Williams said that on 16 July 2024 Ms Green came into his office and reported that the Applicant had been in an incident whilst driving on the M2 involving two empty bins flying off her truck and into the opposing lane. Mr Williams said he instructed Ms Green to advise the Applicant to collect the bins from the M2 if it was safe to do so and to direct the Applicant to return to the depot.[157]

The Applicant’s evidence was that when Ms Green instructed her to recover the bins, she responded with words to the effect of “can you send somebody out, I don’t know where they are or where they have landed and whether it would be safe to do so” and asked whether Ms Green could call the M2 Incident Response or other authorities to assist in recovering the bins and Ms Green said she would call back.[158] The Applicant said that when Ms Green called her back, she told her she could send somebody out in a ute but it would take at least an hour to get there.[159]

Ms Green’s evidence was that around five minutes after the Applicant’s first call, the Applicant called her back and advised that she was able to safely retrieve the bins from the left-hand shoulder lane and she instructed the Applicant to return to the yard so an incident report could be completed.[160] Mr Hurst gave evidence that he re-strapped the bins and travelled back to the depot with the Applicant.[161]

Ms Green said that shortly after the Applicant and Mr Hurst returned to the yard, she took a photo of the truck and its load, a copy of which was attached to her witness statement.[162] Some of bins in the photograph were stacked two high and Ms Green suggested they exceeded the height of the gates of the truck. Some straps can be seen in the photograph. The Applicant contends that it is difficult to discern from the photograph whether the load exceeded the height of the truck.[163] From my examination of the photograph it appears that the row of bins closest to the truck’s cabin is sitting slightly higher than the side gates of the truck. Some straps can be seen in the photograph however the photograph does not necessarily depict the way the bins were restrained when the bins flew off the truck as it was taken upon the Applicant’s return to the yard and during the process of unloading.

Ms Green said all of the Respondent’s trucks are fitted with cameras and she reviewed the footage of the incident with the Applicant and Mr Hurst present.[164] A copy of this footage was provided to the Commission.[165] Ms Green said that whilst reviewing the incident it was her impression that Mr Hurst and the Applicant were not taking the incident as seriously as they should as:

Mr Hurst jokingly said words to the effect of
o“We did it on purpose to get you back for having my truck registration cancelled in the morning”; and
o“there was a leprechaun on the roof throwing bins off”; and
the Applicant was laughing.[166]

Ms Green said that she reminded the Applicant and Mr Hurst of the seriousness of the incident and that a bin could have hit someone’s car, resulting in serious injury or even death.[167] Ms Green said that both the Applicant continued to make jokes and/or laugh.[168] During cross examination Ms Green appeared to indicate that the Applicant was not making jokes herself but was in a relaxed and laughing mood.[169]

Ms Green’s evidence was that:

she told the Applicant it was a serious mistake she had made and that she should have had the load strapped over the top;
the Applicant replied with words to the effect of “Well it’s Remondis’ fault for not training me properly so, ha” and stuck her tongue out at Ms Green;
she reminded the Applicant that she had recently undertaken load restraint training and had received personal instruction from Mr Williams about restraining loads;
the Applicant told her that she had only received theoretical training and not practical training.[170]

The Applicant’s said that at the time of the incident she experienced shock, had a panic attack and when she drove back to the depot Mr Hurst attended to use humour to ‘keep [the Applicant] grounded’.[171] The Applicant gave evidence that a number of colleagues in the office were making light of the situation and she believed this was because they could see her distress and were trying to lift her mood.[172] The Applicant denied that she was making jokes or laughing but conceded that she may have smirked or rolled her eyes at the jokes made by Mr Hurst or her colleagues.[173] The Applicant disputed that she was acting in a joking manner or had an unserious demeanour and said that she accepted the incident was very serious. [174] The Applicant said that she got a little frustrated in response to rapid-fire questions asked by Ms Green and retorted with words to the effect of “Well I don’t know Alana, every time I’ve done these events I have not had an issue before”.[175] The Applicant said there was no tongue poking or anything of that nature.[176]

In relation to inspecting the load prior to the incident the Applicant gave evidence that she was looking to ensure the load was ‘blocked’ meaning that there were no gaps in the load, and she also investigated the conditions of the gates as she had previously noted instances of the gates popping out.[177]

Ms Green gave evidence that she completed an incident report recording the details of the incident as described by the Applicant.[178] Ms Green said the Applicant explained that the bins were strapped around the middle section, but not over the top, and that the bins were stacked two high.[179] Ms Green marked the risk of the incident as ‘extreme’ on the incident report, a copy of which was provided to the Commission.[180]

During cross examination the Applicant acknowledged that she had not herself strapped the bins over the top[181] and that she did not recall checking that the bins were strapped over the top.[182]The Applicant said:

“I did not look for straps, no. I checked that the load was secured end to end, there was no gaps in the load, the load was not going to shift, it was contained between the tailgate and the headboard and the two sides before I left the site.”[183]

During cross examination it was put to the Applicant that she was obliged to ensure the load of bins was secured to the vehicle, not only from side to side and fore and aft, but against vertical movement to which she responded:

“Yes, and I agree that, at the time that I loaded this, I had not considered the vertical movement. I believed that the vehicle was contained, it was free from any gaps, there wasn’t going to be any shifts in movement, I was travelling down sealed roads. It didn’t occur to me that it would ever be possible for wind to gust up and lift a bin into the sky and over the top of the gates.”[184]

The Applicant acknowledged that she was required to take into account air flow and that this was specifically referred to in the Load Restraint Guide.[185] When it was put to the Applicant that she didn’t take air flow into account she indicated she did not consider the upward motion of wind and that the diagrams in the Load Restraint Guide and the Driver Manual tend to do the wave over the top of the load.[186]

When it was put to the Applicant that as a truck driver with a heavy vehicle licence she should know and be expected to know the requirements of secure loads the Applicant responded:

“Yes. And as I stated earlier, in the way that I inspected the load I now know that I’ve misapplied the wrong type of loading technique and loading restraint technique. But at that time, based on my peer training, that was how I was instructed to do it and it was sufficient.”[187]

When it was put to the Applicant that she didn’t inspect the load and didn’t know if it had been strapped the Applicant responded:

“I inspected the load, end to end, side to side. I checked that it wasn’t protruding over the top. As I said, I didn’t go and tug down on any strapping that was on the truck.”[188]

However the Applicant indicated that that the time she left the job she checked the load to the best of her knowledge and understanding at that point in time[189] and that she believed she did everything that she was trained in, knew how to do and understood to the best that she could.[190] The Applicant proceeded:

“You know, you say, ‘Did not adequately check the load restraint’, I’ve checked it. I don’t understand what’s your procedure for adequately – what’s your definition of adequately? What’s your procedure and process? What step did I miss? Because I’m looking at the load guide, ‘The load needs to be contained and blocked’. It’s contained and blocked. There’s no gaps in the load, it’s secured. We’re travelling on a sealed road, it’s good conditions, I’m not – at that point in time I believed that I was doing everything that I would have done.”[191]

The Applicant did agree that as a driver she was responsible for securing the load on the truck and that the incident was serious and could have resulted in fatalities.[192]

It was put to the Applicant that she had not complied with the requirement in the Driver Manual to secure bins to the vehicle and that they were simply sitting within the cage formed by the side barriers of the vehicle with noting to secure them other than their own weight to which the Applicant responded that the bins were secured to the vehicle and were strapped.[193]

Investigation of the incident

Ms Herve is the Respondent’s Human Resources Specialist and gave evidence that she was informed of the incident on the morning of 17 July via a phone call from Mr Williams and an email from the Respondent’s National Human Resources Manager, Ross Kanaris (Kanaris).[194] Ms Herve said she was provided with the footage of the incident[195] and a copy pf the ‘Donesafe’ hazard report from the Respondent’s safety management system.[196] This is the incident report created by Ms Green. Ms Herve said that due to the severity of the incident it was decided that the Applicant would be stood down with pay while an investigation took place.[197] Ms Herve drafted the Allegation Letter[198] which was signed and sent by Mr Williams.[199]

The Applicant’s evidence was that on 17 July 2024, she commenced her working day as normal but received a call, was advised to speak to Mr Williams[200] and then received a notification that she had been stood down pending an investigation.[201] The Allegation Letter stated that the Respondent was investigating Allegation 1 and Allegation 2 and requested a written response by 10am on 19 July 2024.

Applicant’s response to the Allegation Letter

The Applicant responded to the Allegation Letter by way of letter on 18 July 2024 (Response Letter).[202]

In her Response Letter, the Applicant stated that while the number of bins and incident referred to by the Applicant was correct, there were important factors to consider. In relation to Allegation 1 the Applicant said in the Response Letter that:

she had never received practical training that provided step-by-step instructions on how to load the truck;
she had not been provided with any kind of load plan;
her supervisors and managers had not inspected any loads at any time;
the methods used, such as stacking bins on top of one another, were established practices passed on to her by colleagues and she believed the Respondent was aware of this;
she had a shoulder injury that was well known to the Respondent that prevented her from handling heavy loads;
she did not perform the loading alone and her colleague performed the majority of the loading;
she had not anticipated the possibility that elemental factors, being the wind in the case of the incident, could possibly lift bins up and over the enclosure gates on the truck and nor had she been made aware of this occurring previously;
while the incident posed a safety risk, no one was injured and there was no damage to any property;
as soon as the incident occurred, she promptly reported it.[203]

In relation to Allegation 2 the Applicant:

said after review of the process documentation provided to her by the Respondent she did not find any specific guidelines detailing the step-by-step process for loading trucks, whether with full or empty bins;
said she learned everything she was aware of from colleagues or her own experience;
said she was not aware that she was in breach of any policies or procedures;
said she had never been subjected to any disciplinary process in the past and nor had she received any verbal or written warnings because she had never been involved in any incident;
referred to concerns she had raised regarding the engineering rating of and deteriorating quality and conditions on a flatbed truck and acknowledged that subsequent to this a discussion occurred regarding methods of securing different kinds of loads;
said that no practical hands-on guidance was provided at this time and the discussion was about:
· securing plastic bins around the headboard of a truck (and not over the top as this would cause damage to the bins);
· strapping heavier items over the top in such cases when transporting palleted goods;
she acknowledged that as the driver at the time of the incident she was ultimately responsible and expressed remorse that the incident had occurred;
she believed she acted diligently by reporting it and attempting to remediate any further risks as soon as possible;
she was aware that when other colleagues had been involved in more serious incidents they had not been suspended or subjected to disciplinary processes and the person who performed most of the loading had not received any such notification;
she believed that training should be taken seriously and that such incidents should demonstrate that responsibility not only lies with employees but with the Respondent as well;
she was willing to undertake any training deemed necessary as she enjoyed her job and was committed to performing it to the best of her ability without putting herself or others at risk.[204]

On 19 July 2024 Mr Williams emailed Mrs Herve the Applicant’s Response Letter and Ms Herve and Mr Williams then had a telephone conversation about it.[205] Ms Herve’s evidence was that during that telephone conversation:

it was discussed that the Applicant asserted that she had not received training from the Respondent on how to strap the bins and was not aware that the bins needed to be strapped while being transported;

Mr Williams advised Ms Herve that the Applicant was provided with formal training on 6 December 2023 by an external training provider and that he had personally spoken with the Applicant in May 2024 in relation to the importance of strapping the bins over the top and directed her that she needed to do this in the discussion.[206]

Ms Herve’s evidence was that on 19 July 2024 Mr Williams emailed her a copy of the certificate of completion in respect of the Engistics training and a contemporaneous record of the 15 May 2024 conversation in which he had directed the Applicant to strap bins over the top which Mr Williams had recorded in Donesafe (Williams Donesafe Report).[207]

The Williams Donesafe Report indicates it was completed by Mr Williams on 20 May 2024 and that on 15 May 2024 the Applicant “expressed concern over the condition of the gates on the flatbed truck she uses to deliver MGB’s and that this may lead to an incident with a load” and that she “indicated that she felt that the gates weren’t engineered but perhaps should be.”[208]

The Williams Donesafe Report states in respect of immediate actions taken:

“I scheduled an inspection of the truck and the gates with the Workshop Manager Nathan Pressick and also Kirsten. We looked at and discussed the gates and the welding repairs done. Nathan advised that they were sufficient and that the gates were in a serviceable condition. I reviewed the Load Restraint Guide 2018 in addition, which is
attached. This states that the load rated gates are not required for ‘relatively light loads’. Most loads on this truck would be under 1 tonne but may go over this where some bins are collected full. This is still well under the load capacity of the vehicle and is still therefore relatively light. We discussed and agreed this. We also discussed that loads must be strapped which wasn’t being done previously and hence the complete reliance for load restraint on the gates. We discussed this in relation to the Load Restraint Guide and that loads must be strapped over and at the back of the load to prevent movement forwards and backwards as well as up and down. A copy of this Hazard report and
the attached excerpt from the Load Restraint Guide have been provided to Kirsten”.

Interview with the Applicant on 22 July 2024

Ms Herve’s evidence was that she and Mr Williams agreed to arrange a meeting with the Applicant to discuss the incident and her Response Letter in further detail.[209] Ms Herve said she wanted to meet with the Applicant to discuss why she had asserted that she had no training on strapping the bins or that she did not know that this was required when the information supplied by Mr Williams appeared at odds with this.[210]

On 22 July 2024 the Applicant was asked to attend an interview on 24 July 2024.[211] The letter notifying the Applicant of the interview stated that the Applicant was able to bring a support person.[212] The Applicant gave evidence that she was not advised the meeting was a disciplinary meeting nor that her employment could be terminated.[213]

Ms Herve refuted the Applicants assertion that the Applicant was not made aware that disciplinary action may be taken against her and noted that the Allegation Letter stated:

‘Details will be obtained from any Witnesses and all relevant information will be collected. Once the evidence has been collected, the Investigating Officer will make factual findings and will communicate this finding to the relevant Manager for the purpose of determining appropriate outcomes. Such outcomes may include disciplinary action or termination of your employment. You will be informed of the key findings of the investigation as they relate to you’ (emphasis added).[214]

The Applicant attended the meeting on 24 July 2025[215] with Ms Herve, Mr Williams, Mr Tuitupou and Mr Ikladios in attendance. Ms Herve gave evidence that during this meeting:

Mr Williams outlined what the Respondent currently understood were the details of the incident and the resources and training provided to the Applicant while she had been working for the Respondent;
she and Mr Williams asked the Applicant a number of questions;[216]
the Applicant confirmed she was the driver of the truck involved in the incident;
the Applicant said that Mr Hurst loaded and strapped the bins on the vehicle;
Ms Herve asked the Applicant “who conducted the physical verification of the strapping” and the Applicant responded that she did a visual check;
when asked about how many straps were used to secure the load, the Applicant stated she was “unsure, as [Mr Hurst] did the strapping”;[217]
the Applicant stated that she believed “strapping bins over the top would break them”, Mr Williams discussed that he had directed her to do this and the Applicant responded that she was “never shown how to strap over the top”.[218]

Mr Ikladios said that during this meeting both Mr Tuitupou and Mr Williams conceded that there was no policy and procedure in place on how to strap and load bins and that it should be looked at.[219]

Ms Herve provided a copy of her notes of the meeting on 24 July 2024 to the Commission.[220] Those notes indicate that:

the Applicant said that the [Engistics] training did not address the process of how to secure bins and no practical training was provided;
the Applicant had asked for copies of the presentation but never received one;
Mr Williams had said that:
oin May the Applicant had raised concern about the conditions of the gates and Mr Williams had seen the Applicant driving a truck with unstrapped bins and this had triggered a conversation;
oon 15 May 2024 the Applicant and Mr Williams discussed gates and this included discussion of not entirely relying on gates to restrain a load;
oit was placed in a report that the load had to be restrained side to side and top to top;
the Applicant remembered the conversation with Mr Williams and that they spoke about load restraint but indicated:
oin the Applicant’s view the top to top strapping was mainly for palettes;
owhen they spoke about plastic bins the Applicant raised that if the bins were strapped over the top it could damage them as they were plastic;
oin her view she was not required to strap the bins over the top;
Mr Williams disagreed with the Applicant’s account of the conversation on 15 May 2024 and indicated that he was very clear in the discussion about the importance of strapping above;
Mr Williams indicated that there appeared to be a lack of accountability from the Applicant and the Applicant indicated that she was remorseful;
Mr Williams said that it was important that everyone accepts accountability.[221]

During cross examination Mr Williams indicated that he considered the Applicant’s statement that she showed remorse and accepted responsibility to be at odds with everything else the Applicant had said and gave evidence that the Applicant:

“spent a reasonable amount of time talking about what was not her fault and what was not her responsibility, but then happened to finish but saying that she did ultimately take responsibility, and I found them to be incongruous”.[222]

During cross examination Ms Green also said:

“From the initial response and from the investigation that came about, her – Ms Kirsten’s initial reaction to the incident lacked remorse and then that was kind of clearly set out in her response by stating that Remondis hadn’t provided training.”[223]

Mr Williams gave evidence that during the meeting of 24 July 2024:

he informed the Applicant that the purpose of the meeting was to discuss the incident and the Applicant’s responses to date;
he made it clear to the Applicant that the Respondent had not made a decision about the incident;
he outlined the facts of the incident as they were known to him at the time and asked questions of the Applicant and made comments for her consideration;[224]
the Applicant conceded to receiving ‘theoretical’ training on load restraint that addressed how a load should be strapped;
when he asked the Applicant who had verified that the load was suitably in place she advised that she did a ‘visual check’ but when asked how many straps were used to contain the bins the Applicant was unable to recall;
the Applicant said she didn’t believe the bins were required to be strapped over the top;
he reminded the Applicant of the conversation he had with her in May 2024 where he directed her to strap the bins over the top.[225]

The Applicant’s evidence was that the meeting was ‘akin to an interrogation’, Mr Williams continued to press that the Applicant was not remorseful, her views about this were discarded, there were several points in the meeting where she was brought to tears and the meeting was not productive.[226] The Applicant’s evidence was that whenever she would point out her own point of view, Mr Williams would vehemently deny her point of view and aggressively argue his point.[227] Ms Herve and Mr Williams did not agree with the Applicant’s characterisation of the meeting as ‘akin to an interrogation’.[228] Mr Ikladios said the meeting was quite hostile at times, that Mr Williams seemed unwilling to consider the Applicant’s side of the story.[229]

ICAM investigation

Ms Herve gave evidence that whilst she was undertaking an investigation from a human resources perspective, an ‘Incident Cause Analysis Method’ safety investigation, was also being undertaken by the Respondent’s Safety Team (ICAM Investigation).[230] Mr Herve said following the meeting on 24 July 2024 she requested that Zaryab Mallick, HSEQ Coordinator St Marys, who was undertaking the ICAM Investigation, provide her with the report from the ICAM Investigation (ICAM Investigation Report).[231] A copy of the ICAM Investigation Report was provided to the Commission and states:

in the incident description section that the ‘bins were strapped around the middle section of the bins but not over the top of the lids. The bins were stacked 2 high’;
includes a note in the incident description section that the ‘fact that the bins were only strapped around the belly of the bin were taken from initial information given by the driver to her supervisor. As this point the driver stated that the bins were restrained in this way by herself;’
that on 16 July 2024 Mr Hurst was accompanying the driver to ‘help lift bins, as the driver had a lifting restriction’;
that the truck left the yard at 4.30am and the driver was collecting bins from sites;
that the driver came back to unload the collected bins and left again to collect more;
that the driver reached the client site in Circular Quay to recollect bins and the bins were collected and loaded by Mr Hurst, ‘owing to the driver having a lifting restriction’;
with reference to Mr Hurst: ‘According to this person, supplied by REMONDIS to help the driver with a weightlifting restriction, he was left unaccompanied and unsupervised by the driver to also strap the load, he states that he did so correctly by strapping them over the top of the bin, with 240L bins were double stacked’;
‘It is the considered opinion of the investigation that strapping over the top of the bins would have meant that the incident would have not occurred. Yet it did.’[232]

The ICAM Investigation Report:

stated as its key finding that the driver ‘failed to adequately secure the load’;
stated the root cause was that the bins ‘were not adequately restrained, leading to the bins flying off the truck. Driver failed to adequately check the load restraint of the bins’;
indicated that the Applicant was offered more straps on 15 May but refused as she had enough straps for the task.[233]

The Applicant noted that the ICAM Investigation Report noted that the bins were strapped over the top yet states:

‘It is the considered opinion of the investigation that strapping over the top of the bins would have meant that the incident would not have occurred. Yet it did.’[234]

The Applicant also said there were significant inaccuracies in the ICAM investigation in that:

it stated the Applicant was trained by Michael Hogg Sr when she was trained by George Tuitupou;
it stated that there was no strapping over the top of the bins which was refuted by Mr Hurst;
it stated that the Applicant left Mr Hurst unsupervised and unmonitored which she believed to be incorrect as she was with Mr Hurst the entire time;
it does not take into account that straps were used;[235]
it notes that the truck was loaded with 11 x 1100 litre bins, 18 x 60 litre bins and 10 x 240 litre bins when Annexure AG2 to Ms Green’s statement shows there are far more 240 litre bins with at least 16 that can be seen from the photograph.[236]

Outcome of investigation

Ms Herve gave evidence that between 31 July 2024 and 5 August 2024 she reviewed and considered the evidence in relation to the incident including evidence of the Applicant’s induction and training, the ICAM Investigation Report, the Williams Donesafe Report, the Applicant’s Respondent Letter as well as the Applicant’s responses in the meeting on 24 July 2024.[237] The Applicant gave evidence that the Williams Donesafe Report, ICAM Investigation and meeting minutes were never provided to her and submitted if the information was put to her she would have been better able to contend with the facts being alleged.[238]

Ms Herve gave evidence that she and Mr Williams found that Allegation 1 was substantiated and that Allegation 2 was also substantiated for the following reasons:[239]

in relation to the conversation on 15 May 2024 between Mr Williams and the Applicant, while the Applicant stated she did not recall that Mr Williams advised her of the need to strap the bins over the top, Mr Williams had recorded this as being said to her in the Williams Donesafe Report which he completed at the time the conversation took place. Ms Herve formed the view that this conversation did take place as recalled by Mr Williams and that the Applicant was advised of the requirement;
the certificate of attendance dated 6 December 2023 recorded that the Applicant had completed the external training on load restraint;
as part of the Applicant’s induction, she signed to acknowledge that she had read and understood specific policies and procedures that relate to load restraint including the Driver and Operator Manual[240] which states at part 4.4.6:
“When transporting loads on or in vehicles or trailers, Drivers/Operators must ensure that they are correctly covered and securely restrained”;

whilst the Applicant maintained that no one had shown her how to do the strapping, the Applicant holds a heavy vehicle licence and a requirement of having the license is that you have an understanding and demonstrated competence in load restraint;
in May 2024 the Applicant was specifically advised by Mr Willliams that strapping over the top needed to occur;
if the Applicant had questions around how to do this she had the opportunity to raise them with Mr Williams and this is reinforced at part 4.4.6 of the Driver and Operator Manual which states:

“For correct load restraint information please see the Load Restraint Guide available from the NTC & NHVR web page, via the BMS index, or your state Road Transport Regulator. As your Supervisor/ Manager for assistance;

she considered that while the Applicant had reduced capacity for work at the time, this did not impact her ability to check that the load on her vehicle had been secured correctly nor did it detract from her responsibility as a driver to do so;
in the 24 July meeting the Applicant admitted that she only did a visual inspection of the load.

Ms Herve drafted a letter setting out the allegations that the Respondent found to have been substantiated and indicating that the Respondent was considering terminating the Applicant’s employment.[241] Ms Herve gave evidence that when considering why termination of employment was the appropriate outcome she and Mr Williams discussed and considered:

the severity of the matter and potential consequences of the incident, including that it posed a serious risk of major injury and potentially death if the bin had made contact with a vehicle or a vehicle needed to swerve to miss a bin at motorway speed;
that the Applicant had been given a direction by Mr Williams in May 2024 to strap over the top of the bins and she did not follow this direction;
the Applicant did not do a thorough check to ensure that the load was restrained despite this being her responsibility, and that the Applicant conceded that she only did a visual check.[242]

On 5 August 2024 the Applicant received the Show Cause Letter outlining the investigation findings which included that the following allegation was substantiated:

‘On Monday 16 July 2024 at 1:11 pm, you were driving truck registration XO30TR travelling westbound on the M2 and returning to the St Marys yard. You loaded the truck with the following bins:

·     Eleven (11) 1100L
·     Eighteen (18) 660L
·     Ten (10) 240L

While travelling on the M2 back to the St Marys yard, an incident was reported that two (2) x 240L bins were ejected from the truck and flew across the M2 into oncoming traffic while you were driving at 92km/hr. This placed members of the public at significant safety risk which could have caused a significant injury. It was noted that the bins were only secured around the middle section and not over the top of the lids. It is also noted that the bins were stacked up on one another. It is alleged that you are aware of the National Heavy Vehicle loading restraint requirements and breached REMONDIS safety policies and procedures’.[243]

While the Show Cause Letter stated that:

‘…It is alleged that you are aware of the National Heavy Vehicle loading restraint requirements and breached REMONDIS safety policies and procedures’[244]

the Allegation letter had stated:

‘It is alleged that you are aware of the loading restraint requirements and breached REMONDIS safety policies and procedures. You did not follow procedures that you were aware of and been informed of in the past due to a previous incident’.[245]

The Show Cause Letter stated that:

the root cause of the incident was the Applicant’s failure to adhere to basic safety protocols and responsibilities;
the Applicant did not adequately check the load’s restraint, allowing bins to be carried without proper strapping;
despite receiving certified load restraint training from Engistics in December 2023 and a one-on-one session with Mr Williams in May 2024 where load and restraint procedures were discussed, the Applicant neglected to inspect the load correctly before departing from the customer’s site;
the Applicant abdicated her responsibility for securing the load on 16 July 2024, instead relying on a person supplied by the Respondent to assist her with suitable duties;
the Applicant failed to adequately oversee and verify the tasks performed by her colleague, demonstrating a lack of accountability which was the Applicant’s responsibility as a driver under the National Heavy Vehicle Regulations of Australia.[246]

The Show Cause Letter stated:

‘The findings raise serious concerns about your commitment to safety and your ability to perform your role as a Driver. Despite being provided sufficient resources, including straps to ensure safe loading, you neglected the fundamental requirement of inspecting and securing the load properly. This negligence created a substantial risk and led to a serious incident that could have resulted in fatality. Your actions suggest a disregard for the critical importance of load restraint, which is a fundamental aspect of your legal responsibilities and duties as a Driver.
…
‘Based on the investigation findings and on the balance of probabilities, REMONDIS has serious concerns about the Applicant’s ability to safely and lawfully fulfil your duties as a REMONDIS Driver.
As a Driver working for REMONDIS, you are expected to operate with limited supervision under the National Heavy Vehicle Regulations of Australia which also relates to load restraints. It is crucial for REMONDIS to trust and have confidence in your ability to represent the Company with diligence, integrity and the best interests of the business. Regrettably, your recent conduct has raised serious concerns about your adherence to safety protocols and responsibilities’.[247]

The Commission should take into consideration that regardless of the operational size of Respondent it ‘should not have engaged in belligerent conduct throughout the termination process’.[433]
The same courtesies with respect to how an organisation should conduct itself ought to exist regardless of the size of the organisation.[434]
The omission should give the factors in s. 387(f) and (g) neutral consideration.[435]

The Respondent is not a small business and employes dedicated human resources specialists. I find that:

the size of the Respondent’s enterprise was not likely to impact on the procedures followed in effecting the dismissal; and
the Respondent’s enterprise did not lack dedicated human resource management specialists and expertise.

Section 387 (h) - What other matters are relevant?

Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

Submissions

The Applicant submitted that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable:

the termination of the Applicant’s employment was disproportionate to her conduct;[436]
the safety incident did not involve any serious injury, loss of life or limb;
the Applicant immediately reported the incident;
the Applicant engaged in all procedures and did not act in a way that was wilfully fraudulent at the time of the collision;
the Applicant had at all times throughout her employment conducted herself in an honest and trustworthy manner, including at times when she had the opportunity to choose not to;
the Applicant has taken steps to improve her knowledge on her own volition and has demonstrated a clear willingness to engage in any training and procedures as required, and;
the Applicant was and still remains completely apologetic and remorseful for what has occurred;
the Applicant had been dismissed whilst the Applicant’s colleague who was also involved in in the incident and had mutual responsibility has faced no disciplinary action;
the Respondent has not always terminated other employees for similar conduct which is demonstrated by Employees X, Y and Z who were subject to similar allegations and were not dismissed. [437]

The Applicant submitted that:

she had been treated prejudicially in respect of other disciplinary matters;
numerous previous safety incidents have occurred with little to no disciplinary outcomes that amounted to termination and it cannot be submitted that the Respondent has a no-tolerance approach to safety issues.[438] The Applicant pointed to the material produced in accordance with item 11 of the Order of the Commission dated 6 November 2024 in this respect.

The Applicant also referred to a table of disciplinary actions produced by the Respondent pursuant to orders made by the Commission.[439]

In respect of the Applicant’s submissions regarding differential treatment the Respondent submitted that the other incidents involving a breach of load restraint safety protocols and responsibilities, resulting in an extreme risk to the health and safety of others, are not comparable for the following reasons:[440]

The material produced in accordance with item 11 of the Order of the Commission dated 6 November 2024 includes incidents that do not relate to load restraint safety breaches or are not comparable to these proceedings.
On 24 July 2023 and 20 September 2021 two separate employees were involved in load restraint breaches and these employees had not received load restraint training.
The Respondent required employees who operated flat bed trucks to attend the Engistics load restraint training on 6 December 2023, and the Applicant attended this training.
Subsequent to the Engistics training, the Applicant was specifically directed by Mr Williams to tie down loads of empty bins by strapping over the top.
Mr Hurst had not undertaken the Engistics load restraint training, was not the assigned driver on the date of the incident and nor had he been assigned to drive a flat bed truck during the course of his employment.
As the allocated driver on the date of the incident the Applicant was responsible to ensure the load was adequately restrained and this was not a responsibility she could leave to an offsider, particularly one who had not had the requisite training.

The Applicant also submitted that there were a number of factors related to her personal circumstances that should be considered, including that:

she had been unable to secure alternative work on a like-for-like basis;
the Applicant has had to make a number of lifestyle adjustments following termination;
the Applicant has ongoing financial obligations and is relying on person savings to meet those costs;
the termination has had a negative impact on the Applicant’s mental health.[441]

The Respondent submitted that the Applicant’s evidence shows that the Applicant has only made attempts to secure temporary or casual employment and not work on a “like for like” basis as evident from a statement made to her workplace rehabilitation provider.[442] The Respondent also submitted that heavy vehicle licence drivers are in demand in New South Wales and this is not a situation where the Applicant is unable to find work on a like for like basis when the Applicant’s inability find suitable alternative employment is of her own causing.[443]

The Respondent submitted that the Commission should take into account that the Applicant was employed for just over a year and that during this short period the Applicant was involved in three preventable vehicle collisions in addition to the incident.[444]

While it may be a relevant matter under s.387(h) to consider whether employees in comparable cases have been treated differently, it is the case, as has previously been observed by the Australian Industrial Relations Commission, that “…the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable… In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made. … Specifically, the Commission must be conscious that there may be considerations subjective to the circumstances of an individual that caused an employer to take a more lenient approach in an alleged comparable case.”[445]

I have noted earlier that the incident was not the first incident involving a poorly restrained load and that other employees of the Respondent involved in these incidents did not all result in termination of the employment of the employees concerned. I also note that during cross examination Mr Williams indicated that the Engistics training had been organised as a corrective action in response to an incident on 24 July[446] involving a palleted load of cardboard.[447] Mr Williams explained that the “palleted loads were at different heights and when you have palleted loads at different heights and you strap across those loads, the side that is on the lower side received much less of a downward force and a downward strapping pressure than the higher side. As a result of that, by the time the truck came back from the customer site with the load it had moved marginally…”[448] Mr Williams’s evidence was that the load was strapped at every pallet and there was a “fairly strong effort to restrain the load” but it nonetheless moved and it could have been a serious incident.[449] Mr William’s evidence under cross examination was that he didn’t think the employee involved had an adequate understanding of load restraint even though he had strapped over the top of the pallets but he had not understood that the relative height of the pallets for each row of pallets would make a difference.[450] Mr Williams indicated that this employee had a heavy vehicle licence and would have gone through the same courses as the Applicant in getting this licence.[451] Mr Williams confirmed the employee was not available to attend the training that had been organised in respect of the incident he had been involved in but that this was not desirable and he did not have the employee drive those sorts of loads subsequent to that.[452] Mr Williams was asked whether the employee received any form of disciplinary action and Mr Williams’ said:

“No, the incident – he never lost the load and he certainly made a concerted effort to restrain the load that I thought was reasonable, although inadequate”.[453]

Mr Williams was asked:

“In the event that the load had perhaps fallen out, even though it had been strapped, let’s say, it would have been fine?”

to which Mr Williams responded that the employee didn’t lose the load and said:

“So I think the key difference here was that he didn’t lose the load because it was strapped. It wasn’t strapped as adequately as it could have been or as it should have been, but there was certainly a reasonable and strong attempt to adequately restrain the load.”[454]

Mr Hurst was not disciplined in relation to his role. However, the Applicant’s circumstances are different in that not only was she a licenced heavy vehicle driver who had been assessed as competent and had also undertaken load restraint training:

·   her role was predominantly that of transporting bins and loading bins;
·   as the licensed driver of a truck, she was legally responsible for ensuring that the load was properly secured;[455]
·   she was a health and safety representative who was aware of the importance of load restraint and had raised a concern about the adequacy of the gates as a mechanism for restraining her load, which was usually comprised of bins;
·   after raising her concern she was given a specific direction on 15 May 2024 to strap over the top of her loads to prevent movement forwards and backwards as well as up and down;
·   it is also likely that the Applicant also raised a concern about not having any or enough straps, indicating that she knew they were needed, and the Respondent purchased additional straps the day after the discussion, being 16 May 2024;
·   on the day of the incident the conditions were described by the Applicant as ‘gusty’ and she was to travel down a major highway at a speed in excess of 90 kilometres per hour;
·   despite the direction given to her about a measure to prevent movement up and down, being strapping over the top of the load, the Applicant, on her own admission, did not take into account vertical movement;[456]
·   the Applicant drove out of the depot without properly inspecting the load to ensure it had been restrained, if she inspected it at all, and with a load in which rows of bins were not all strapped over the top, if at all.

I am not persuaded that the circumstances of the other employees involved in safety incidents are comparable to the circumstances of the Applicant in this matter.

The effects of dismissal on the personal or economic situation of the dismissed employee may be taken into consideration under s.387(h) of the FW Act.[457] I accept that the Applicant has financial commitments and that the consequence of the Applicant’s dismissal has resulted in her needing to make lifestyle adjustments.

However the incident was of a most serious nature and the consequences of the Applicant’s conduct could have resulted serious injury or fatality and I consider this should also be taken into account.

I also accept that the Applicant was not employed by the Respondent for a particularly long period of time, being a period of just over 14 months, and that across this period the Applicant had three other collisions in addition to the incident that resulted in her dismissal, although I accept these other incidents were minor in nature.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

I have made findings in relation to each matter specified in section 387 as relevant.

I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[458]

Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable because:

·   there was a valid reason for the Applicant’s dismissal related to her conduct;
·   the Applicant was notified of the valid reason for her dismissal and was provided with an opportunity to respond before the decision to dismiss her was made;
·   while not all incidents involving load restraint have resulted in termination of employment, I am not persuaded that the Applicant’s circumstances are comparable to those of the other employees of the Respondent. In the Applicant’s particular circumstances not only was she a licenced heavy vehicle driver who had been assessed as competent and who was legally responsible for ensuring that the load was properly secured:
o she had also undertaken load restraint training and Mr Williams have given her a direction about a measure to prevent movement up and down, being strapping over the top of the load;
o the Applicant, on her own admission, did not take into account vertical movement on the day of the incident;[459]
o the Applicant drove out of the depot without properly inspecting the load to ensure it had been restrained, if she inspected it at all, and with a load in which rows of bins were not all strapped over the top, if at all;

· while the dismissal is likely to have had some personal impacts for the Applicant, the incident was of a very serious nature and the Applicant’s conduct in failing to properly inspect or secure the load before she drove the truck could have resulted in fatalities and/or serious injury. It is only by chance that the bins did not make contact with another vehicle and that no driver took evasive action in response to the bins flying down the M2 motorway. Had either of these events transpired the situation may have been far worse.

Conclusion

Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. The Applicant’s application is therefore dismissed.

COMMISSIONER

Appearances:

Ryan, B of the Transport Workers’ Union for the Applicant.

Murray, D of the Australian Industry Group for the Respondent.

Hearing details:

2025.
Sydney.
7 January and 8 January.

[1] Applicant’s Form F2 - Unfair dismissal application, response to q. 2.1.

[2] Green Statement at [6].

[3] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[4] Williams Statement at [9], Annexure BW4.

[5] Tuitupou Statement at [16].

[6] Tuitupou Statement at [17].

[7] Tuitupou Statement at [13] – [14].

[8] Williams Statement at [10], Annexure BW10, p. 1.

[9] Williams Statement, Annexure BW10, p. 73.

[10] Williams Statement, Annexure BW10, p. 75.

[11] Williams Statement, Annexure BW10, p. 83.

[12] Ibid.

[13] Williams Statement, Annexure BW10, p. 92.

[14] Williams Statement, Annexure BW10, p. 94.

[15] Williams Statement, Annexure BW10, p. 4 and 9.

[16] Transcript of Proceedings, PN85.

[17] Transcript of Proceedings, PN87.

[18] Transcript of Proceedings, PN86.

[19] Transcript of Proceedings, PN93.

[20] Transcript of Proceedings, PN101.

[21] Transcript of Proceedings, PN119.

[22] Transcript of Proceedings, PN109.

[23] Transcript of Proceedings, PN110.

[24] Transcript of Proceedings, PN142.

[25] Transcript of Proceedings, PNs128 – 133.

[26] Transcript of Proceedings, PNs135 – 140.

[27] Transcript of Proceedings, PN141.

[28] Applicant’s evidence at [22].

[29] Ibid.

[30] Williams Statement at [11].

[31] Williams Statement at [11], Annexure BW6.

[32] Williams Statement at [11], Annexure BW7.

[33] Applicant’s Reply Statement at [26].

[34] Transcript of Proceedings at PN628 – 631.

[35] Transcript of Proceedings at PN628 – 629.

[36] Transcript of Proceedings at PN633.

[37] Transcript of Proceedings at PN634.

[38] Transcript of Proceedings at PN637.

[39] Transcript of Proceedings at PN642.

[40] Williams Statement, Annexure BW9.

[41] Williams Statement, Annexure BW10.

[42] Williams Statement at [11], Annexure BW8.

[43] Transcript of proceedings at PN178.

[44] Williams Statement, Annexure BW9, p 10-11.

[45] Williams Statement, Annexure BW13.

[46] Applicant’s Reply Statement at [26].

[47] Applicant’s Reply Statement at [29].

[48] Whitten Statement at [6].

[49] Whitten Statement at [7].

[50] Whitten Statement at [8], Annexure GW2.

[51] Whitten Statement at [8].

[52] Ibid.

[53] Whitten Statement at [9].

[54] Whitten Statement at [10].

[55] Transcript of Proceedings at PN 672.

[56] Transcript of Proceedings at PN 673.

[57] Williams Statement at [14], Annexure BW11, Annexure BW12.

[58] Whitten Statement at [7], Annexure GW1.

[59] Williams Statement at [16].

[60] Williams Statement at [15].

[61] Applicant’s Reply Statement at [9].

[62] Applicant’s Reply Statement at [28].

[63] Applicant’s Reply Statement at [9].

[64] Applicant’s Reply Statement at [20].

[65] Transcript of Proceedings at PN705.

[66] Ibid.

[67] Transcript of Proceedings at PN908.

[68] Transcript of Proceedings at PN909.

[69] Tuitupou Statement at [7].

[70] Ibid.

[71] Tuitupou Statement at [7], Annexure FT1.

[72] Applicant’s Statement, Attachment B.

[73] Ibid.

[74] Applicant’s Statement, Attachment B; Tuitupou Statement, Annexure FT1.

[75] Ibid.

[76] Tuitupou Statement at [9].

[77] Tuitupou Statement at [10].

[78] Tuitupou Statement at [11].

[79] Tuitupou Statement at [12].

[80] Applicant’s Statement at [21].

[81] Hurst Statement at [10].

[82] Green Statement at [17].

[83] Applicant’s evidence at [23].

[84] Ibid.

[85] Williams Statement at [17].

[86] Willliams Statement at [18].

[87] Williams Statement at [19].

[88] Ibid.

[89] Williams Statement at [20].

[90] Williams Statement at [20], Annexure BW14, Annexure BW15.

[91] Transcript of Proceedings at PN 197 and PN 198.

[92] Transcript of Proceedings at PN 200.

[93] Transcript of Proceedings at PN 700.

[94] Transcript of Proceedings at PN 701.

[95] Transcript of Proceedings at PN 703.

[96] Transcript of Proceedings at PN 729.

[97] Transcript of Proceedings at PN 1454.

[98] Transcript of Proceedings at PN 1456 - 1467.

[99] Transcript of Proceedings at PN 1458.

[100] Transcript of Proceedings at PN 210.

[101] Transcript of Proceedings at PN 217.

[102] Transcript of Proceedings at PNs 223 – 226.

[103] Transcript of Proceedings at PN 713.

[104] Transcript of Proceedings at PN 714.

[105] Ibid.

[106] Transcript of Proceedings at PNs 236 – 237.

[107] Transcript of Proceedings at PNs 239 – 243.

[108] Williams Statement at [21], Annexure BW16.

[109] Transcript of Proceedings at PN 722.

[110] Applicant’s Statement at [17].

[111] Green Statement, Annexure AG1.

[112] Ibid.

[113] Transcript of Proceedings at PN 1173.

[114] Transcript of Proceedings at PN 1174.

[115] Applicant’s Statement at [15], Annexure A.

[116] Green Statement at [7].

[117] Green Statement at [10].

[118] Applicant’s Reply Statement at [10].

[119] Ibid.

[120] Green Statement at [10].

[121] Green Statement at [11].

[122] Green Statement at [7].

[123] Applicant’s Statement at [17].

[124] Applicant’s Statement at [19].

[125] Applicant’s Statement at [7].

[126] Green Statement at [8].

[127] Transcript of Proceedings at PN 1132 – 1133.

[128] Transcript of Proceedings at PN 1316.

[129] Applicant’s reply statement at [8].

[130] Hurst Statement at [6] – [7].

[131] Applicant’s Statement at [20]; Hurst Statement at [8].

[132] Transcript of Proceedings at PN410 – 413.

[133] Transcript of Proceedings at PN1132.

[134] Transcript of Proceedings at PN1318.

[135] Transcript of Proceedings at PN414.

[136] Transcript of Proceedings at PN420.

[137] Transcript of Proceedings at PN421.

[138] Transcript of Proceedings at PN422.

[139] Transcript of Proceedings at PN427.

[140] Hurst Statement at [9]. See also Transcript of Proceedings at PN 429.

[141] Hurst Statement at [9].

[142] Transcript of Proceedings at PN429 – 431.

[143] Transcript of Proceedings at PN432.

[144] Transcript of Proceedings at PN440.

[145] Applicant’s Reply Statement at [15].

[146] Hurst Statement at [11] – [12]; Applicant’s Statement at [24].

[147] Applicant’s Statement at [28].

[148] Applicant’s Statement at [32].

[149] Hurst Statement at [13].

[150] Applicant’s Statement at [34].

[151] Green Statement at [19]

[152] Applicant’s Reply Statement at [16].

[153] Green Statement at [12]

[154] Green Statement at [13].

[155] Ibid.

[156] Applicant’s Statement at [27].

[157] Williams Statement at [23].

[158] Applicant’s Reply Statement at [11].

[159] Ibid.

[160] Green Statement at [14].

[161] Hurst Statement at [14].

[162] Green Statement at [15], Annexure AG2.

[163] Applicant’s Statement at [12].

[164] Green Statement at [16].

[165] Green Statement, Annexure AG3.

[166] Green Statement at [16].

[167] Ibid.

[168] Ibid.

[169] Transcript of Proceedings at PN1256.

[170] Green Statement at [17].

[171] Applicant’s Statement at [30].

[172] Ibid.

[173] Applicant’s Reply Statement at [13].

[174] Ibid.

[175] Applicant’s Reply Statement at [14].

[176] Ibid.

[177] Applicant’s Reply Statement at [15].

[178] Green Statement at [18].

[179] Ibid.

[180] Green Statement at [18], Annexure AG4.

[181] Transcript of Proceedings at PN276 and PN278.

[182] Transcript of Proceedings at PN277.

[183] Transcript of Proceedings at PN279.

[184] Transcript of Proceedings at PN282.

[185] Transcript of Proceedings at PN283 - 284.

[186] Transcript of Proceedings at PN287.

[187] Transcript of Proceedings at PN306 - 308.

[188] Transcript of Proceedings at PN310.

[189] Transcript of Proceedings at PN353.

[190] Transcript of Proceedings at PN355.

[191] Transcript of Proceedings at PN356.

[192] Transcript of Proceedings at PN333 - 340.

[193] Transcript of Proceedings at PN358 – 359.

[194] Herve Statement at [8].

[195] Herve Statement at [8], Annexure SH2.

[196] Herve Statement at [8], Annexure SH1.

[197] Herve Statement at [9].

[198] Herve Statement at [10].

[199] Herve Statement at [11], Annexure SH3.

[200] Applicant’s Statement at [28].

[201] Applicant’s Statement at [28], [38], Annexure D.

[202] Applicant’s Statement at [39], Annexure E.

[203] Applicant’s Statement, Annexure E.

[204] Applicant’s Statement, Annexure E.

[205] Herve Statement at [14].

[206] Herve Statement at [15].

[207] Herve Statement at [16], Annexure SH6.

[208] Herve Statement, Annexure SH6.

[209] Herve Statement at [17].

[210] Herve Statement at [17].

[211] Applicant’s Statement at [29]; Herve Statement at [18].

[212] Herve Statement at [18], Annexure SH7.

[213] Applicant’s Statement at [29].

[214] Herve Statement at [13] in response to Applicant’s Statement at [29], Annexure SH3.

[215] Applicant’s Statement at [40].

[216] Herve Statement at [20].

[217] Herve Statement at [21].

[218] Herve Statement at [22].

[219] Ikladios Statement at [11].

[220] Herve Statement, Annexure SH8.

[221] Herve Statement, Annexure SH8.

[222] Transcript of Proceedings at PN 735.

[223] Transcript of Proceedings at PN1386.

[224] Williams Statement at [30].

[225] Williams Statement at [31].

[226] Applicant’s Statement at [40].

[227] Applicant’s Reply Statement at [39].

[228] Herve Statement at [20]; Williams Statement at [30].

[229] Ikladios Statement at [10].

[230] Herve Statement at [23].

[231] Ibid.

[232] Herve Statement, Annexure SH9.

[233] Herve Statement, Annexure SH9.

[234] Applicant’s Statement at [58].

[235] Applicant’s Reply Statement at [34].

[236] Applicant’s Reply Statement at [12] with reference to Green Statement, Annexure AG2.

[237] Herve Statement at [25].

[238] Applicant’s Reply Statement at [41].

[239] Herve Statement at [28] – [3].

[240] Herve Statement, Annexure SH10.

[241] Herve Statement at [34], Annexure Sh11.

[242] Herve Statement at [36].

[243] Applicant’s Statement, Annexure F.

[244] Ibid.

[245] Applicant’s Statement, Annexure D.

[246] Applicant’s Statement, Annexure F.

[247] Ibid.

[248] Ibid.

[249] Herve Statement at [35].

[250] Transcript of Proceedings at PN 1413.

[251] Ibid.

[252] Transcript of Proceedings at PN 1415.

[253] Applicant’s Statement, Annexure H.

[254] Applicant’s Statement, Annexure H.

[255] Applicant’s Statement, Annexure I.

[256] Applicant’s Statement, Annexure I.

[257] Applicant’s Statement, Annexure I.

[258] Ibid.

[259] Ibid.

[260] Ibid.

[261] Applicant’s Statement, Annexure I.

[262] Williams Statement at [40].

[263] Applicant’s Statement, Annexure I.

[264] Hookings Statement at [7].

[265] Ibid.

[266] Herve Statement at [38].

[267] Ibid.

[268] Herve Statement at [39].

[269] Hookings Statement at [7].

[270] Transcript of proceedings at PN 1074.

[271] Transcript of proceedings at PN 1077.

[272] Transcript of proceedings at PN 1078.

[273] Transcript of proceedings at PN 1079.

[274] Hookings Statement at [7].

[275] Herve Statement at [39].

[276] Transcript of Proceedings at PN 535 – 537.

[277] Transcript of Proceedings at PN 761.

[278] Hookings Statement at [7].

[279] Williams Statement at [38].

[280] Hookings Statement at [10].

[281] Hookings Statement at [11].

[282] Applicant’s Reply Statement at [23].

[283] Applicant’s Reply Statement at [22].

[284] Applicant’s Reply Statement at [23]; Ikladios Statement at [8]. [9].

[285] Transcript of Proceedings at PN 1055 – 1057, PN 1067.

[286] Williams Statement at [39].

[287] Applicant’s Reply Statement at [38].

[288] Transcript of Proceedings at PN 777.

[289] Transcript of Proceedings at PN783.

[290] Transcript of Proceedings at PN784.

[291] Applicant’s Statement at [44].

[292] Applicant’s Statement, Annexure J.

[293] Ibid.

[294] Hurst Statement at [15].

[295] Herve Statement at [45].

[296] Williams Statement at [41].

[297] Transcript of Proceedings at PN 718.

[298] Transcript of Proceedings at PN 742.

[299] Applicant’s Statement at [52] – [53], Annexure K.

[300] Ibid.

[301] Williams Statement at [7].

[302] Williams Statement, Annexure BW1.

[303] Williams Statement, Annexure BW2.

[304] Williams Statement, Annexure BW3.

[305] Applicant’s Reply Statement at [25].

[306] Williams Statement at [8].

[307] Transcript of Proceedings at PN 515.

[308] Applicant’s Statement at [13].

[309] Applicant’s Statement at [14].

[310] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[311] Ibid.

[312] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

[313] Edwards v Justice Giudice [1999] FCA 1836, [7].

[314] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

[315] Applicant’s Submissions at [37].

[316] Applicant’s submissions at [38].

[317] Applicant’s submissions at [39].

[318] Applicant’s submissions at [44].

[319] Applicant’s submissions at [45].

[320] Applicant’s submissions at [42].

[321] Applicant’s submissions at [43].

[322] Applicant’s submissions at [46].

[323] Respondent’s submissions at [18].

[324] Respondent’s submission at [19].

[325] Respondent’s submissions at [20].

[326] Respondent’s submissions at [21].

[327] Respondent’s submissions at [22] with reference to Green Statement at [13] and Herve Statement at [26].

[328] Respondent’s submissions at [23].

[329] Respondent’s submissions at [24].

[330] Respondent’s submissions at [25].

[331] Applicant’s reply submissions at [8].

[332] Applicant’s reply submissions at [9].

[333] Ibid.

[334] Applicant’s reply submissions at [11].

[335] Ibid.

[336] Applicant’s reply submissions at [12].

[337] Applicant’s reply submissions at [16] – [17].

[338] Transcript of Proceedings at PN 1495.

[339] Transcript of Proceedings at PN 1496.

[340] Transcript of Proceedings at PN 1497.

[341] Transcript of Proceedings at PN 1498.

[342] Transcript of Proceedings at PN 1499.

[343] Transcript of Proceedings at PN 1500.

[344] Transcript of Proceedings at PN 1504.

[345] Transcript of Proceedings at PN 1505.

[346] Transcript of Proceedings at PN 1495.

[347] Transcript of Proceedings at PN 1505.

[348] Transcript of Proceedings at PN 1495.

[349] Transcript of Proceedings at PN 1496.

[350] Transcript of Proceedings at PN 1497.

[351] Transcript of Proceedings at PN 1502.

[352] Transcript of Proceedings at PN 1503.

[353] Transcript of Proceedings at PN 1514.

[354] Transcript of Proceedings at PN 1515.

[355] Ibid.

[356] Transcript of Proceedings at PN 1516.

[357] Ibid.

[358] Transcript of Proceedings at PN 1519.

[359] Transcript of Proceedings at PN 1548.

[360] Transcript of Proceedings at PN 1519.

[361] Transcript of Proceedings at PN 1520.

[362] Ibid.

[363] Transcript of Proceedings at PN 1521.

[364] Transcript of Proceedings at PN 1522.

[365] Transcript of Proceedings at PN 1523.

[366] Ibid.

[367] Ibid.

[368] Transcript of Proceedings at PN 1524.

[369] Ibid.

[370] Transcript of Proceedings at PN 1525.

[371] Transcript of Proceedings at PN 1530.

[372] Transcript of Proceedings at PN 1530.

[373] Transcript of Proceedings at PN 1531.

[374] Transcript of Proceedings at PN 1532.

[375] Transcript of Proceedings at PN 1550.

[376] Transcript of Proceedings at PN 1534.

[377] Transcript of Proceedings at PN 1535.

[378] Transcript of Proceedings at PN 1536.

[379] Transcript of Proceedings at PN 1553.

[380] Williams Statement at [7].

[381] Transcript of Proceedings, PNs128 – 133.

[382] Transcript of Proceedings, PNs135 – 140.

[383] Transcript of Proceedings, PN 141.

[384] Transcript of Proceedings at PN 714.

[385] Williams Statement, Annexure BW15.

[386] Williams Statement, Annexure BW16.

[387] Transcript of Proceedings at PN 1174.

[388] Williams statement at [42].

[389] Transcript of Proceedings at PN 671.

[390] Transcript of Proceedings at PN420.

[391] Transcript of Proceedings at PN421.

[392] Transcript of Proceedings at PN422.

[393] Hurst Statement at [9]. See also Transcript of Proceedings at PN 429.

[394] Transcript of Proceedings at PN429 – 431.

[395] Transcript of Proceedings at PN432.

[396] Transcript of Proceedings, PN141.

[397] Applicant’s Reply Statement at [15].

[398] Applicant’s Statement at [27].

[399] Herve Statement at [21].

[400] Transcript of Proceedings at PN282.

[401] Transcript of Proceedings at PN1450.

[402] Transcript of Proceedings, PN141.

[403] Transcript of Proceedings at PN282.

[404] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[405] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[406] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[407] Ibid.

[408] Applicant’s Submissions at [58].

[409] Applicant’s Submissions at [61].

[410] Respondent’s Submissions at [29].

[411] Respondent’s Submissions at [30].

[412] Ibid.

[413] Herve Statement at [17].

[414] Herve Statement, Annexure SH8.

[415] Applicant’s Statement at [44].

[416] Applicant’s Statement, Annexure J.

[417] Applicant’s Statement, Annexure F.

[418] Ibid.

[419] Applicant’s Statement, Annexure F.

[420] Ibid.

[421] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[422] RMIT v Asher (2010) 194 IR 1, 14-15.

[423] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

[424] Applicant’s Submissions at [65].

[425] Respondent’s Submissions at [33].

[426] Ibid.

[427] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

[428] Applicant’s submissions at [70].

[429] Applicant’s Submissions at [72] – [73].

[430] Applicant’s Submissions at [72].

[431] Applicant’s Submissions at [76].

[432] Applicant’s Submissions at [77].

[433] Applicant’s Submissions at [78].

[434] Applicant’s Submissions at [79].

[435] Applicant’s Submissions at [80].

[436] Applicant’s Submissions at [81] – [84].

[437] Applicant’s Submissions at [85].

[438] Applicant’s Submissions at [93] – [98].

[439] Exhibit R3.

[440] Respondent’s Submissions at [38].

[441] Applicant’ Submissions at [88] – [92].

[442] Respondent’s Submissions at [39] with reference to documents produced by the Applicant in accordance with the Commission’s Order of 4 December 2024, item 1.

[443] Respondent’s Submissions at [39].

[444] Respondent’s Submissions at [40].

[445] Sexton v Pacific National (ACT) Pty Ltd PR931440 (AIRC, Lawler VP, 14 May 2003), [36].

[446] Transcript of Proceedings at PN 672.

[447] Transcript of Proceedings at PN 673.

[448] Ibid.

[449] Transcript of Proceedings at PNs 674 – 676.

[450] Transcript of Proceedings at PN 678.

[451] Transcript of Proceedings at PN 680.

[452] Transcript of Proceedings at PN 681- 683.

[453] Transcript of Proceedings at PN 686.

[454] Transcript of Proceedings at PN 688.

[455] Transcript of Proceedings, PN141.

[456] Transcript of Proceedings at PN282.

[457] Ricegrowers Co-operative v Schliebs PR908351 (AIRCFB, Duncan SDP, Cartwright SDP, Larkin C, 31 August 2001), [26].

[458] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

[459] Transcript of Proceedings at PN282.

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