Mr Adrian Harrington v Coates Hire Operations Pty Limited

[2015] FWC 2598

[2015] FWC 2598 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

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

Mr Adrian Harrington
v
Coates Hire Operations Pty Limited
(U2014/1213)

COMMISSIONER BOOTH BRISBANE, 6 MAY 2015

Termination of employment - arbitration.

[1] Mr Adrian Harrington worked for Coates Hire Operations Pty Limited (Coates) for 12 years until he was dismissed for a safety breach (the safety incident). His duties involved collection and delivery of portable toilets. Coates was contracted by McConnell Dowell, which was constructing and commissioning the Gold Coast Light Rail project (the project).

[2] Mr Harrington sought unfair dismissal relief before the Fair Work Commission (the Commission), which in earlier proceedings held his dismissal as unfair and awarded compensation, but Coates successfully appealed that decision and the matter was listed for rehearing. 1

[3] Mr Harrington was represented by Mr Christodolou, his solicitor and Coates was represented by Mr Miller of Australian Industry Group.

Preliminary matters

[4] Mr Harrington was dismissed and given notice of the dismissal on 26 March 2014 and then made application for unfair dismissal remedy. His employment record with Coates prior to the safety incident was unblemished.

[5] The matter turns on whether the dismissal was for a valid reason and not otherwise unfair, and if found to the contrary, what remedy if any should be ordered.

Facts

[6] The project involved construction and delivery of a light rail network on the Gold Coast. The system is now operational and known as G:link, but at the time of the safety incident was undergoing operational testing, with trams running on tracks, powered from overhead electrical wires. The track was commissioned progressively for testing. Testing commenced in October 2013, meaning during testing some zones might be “live” (electricity was running through the wires) and other parts “dead” (no power). All 13 kilometres of track went live from 6am on 3 March 2014.

[7] During construction and testing, areas that were live were designated as hazard zones, and special requirements were in place to manage works in hazard zones, including various notification requirements such as signage. The safe working distance from live, overhead wires was designated as 3 metres.

[8] On 19 March 2014, Mr Harrington was discharging a work order to collect a vandalised portable toilet from a site adjacent to the tracks. In order to discharge his work order, he positioned his truck on the track, there being no traffic controller who might make it safe to work from the roadside rather than trackside. Lifting the toilet, Mr Harrington conceded, it required the crane to be manoeuvred closer to the wires than 3m. At some point, a tram approached, and signalled its presence by flashing its lights and sounding its horn. Mr Harrington, on seeing the tram (he says late in the process), hastened his loading and left the site, stopping once off the tracks to re-secure the load, whereon he had a discussion with a representative of McConnell Dowell about the site being live, and that his presence had resulted in the zone being isolated from power. Mr Harrington says this was the first he knew that the area was live and a hazard zone.

[9] Mr Harrington’s presence on the site with a tram in close proximity on a live site was considered a serious hazard and a breach of Coates’ safety requirements.

[10] Mr Harrington was required to attend a meeting on 21 March with Mr Cotter, the HSEQ Advisor for Coates, who was investigating the safety incident. The meeting lasted about 10 minutes. Mr Cotter prepared handwritten notes of the meeting and some 40 minutes later on returning to his office, typed an “incident statement”. That typed report was presented to Mr Harrington at a second meeting that day attended by Mr Hennrie, the Area Operations Manager of the relevant region, a Mr Gunn, the Branch Manager and Mr Harrington’s Branch Manager, Mr Irvine, who was, or purported to act as, Mr Harrington’s support person for the meeting.

[11] Mr Hennrie presented the typed incident report to Mr Harrington who was asked to, and did, sign it, although he admits he did not read it, and could not do so as he did not have his reading glasses with him at the time. There are differences between the parties as to the accuracy of the content of that incident statement. The handwritten notes were not produced by Coates to Mr Harrington or in these proceedings.

[12] At the second meeting, after having signed the document, Mr Harrington was shown closed circuit telefootage (CCTV) footage of part of the safety incident, and was served with a show cause notice, indicating that Coates was considering “terminating your employment or other disciplinary action.” Mr Hennrie says the meeting took some 20 minutes, and that Mr Harrington took some minutes perusing the incident report.

[13] Mr Harrington provided a response to the show cause letter dated 21 March 2014. He says he handed it to his Branch Manager, Mr Gunn, on 24 March.

[14] A third meeting was called on 24 March 2014 attended by Mr Hennrie and Mr Sandon, Human Resources Manager (North Region). The former says the meeting lasted 15 to 20 minutes; the latter, 10 minutes. The purpose of the meeting was to inquire of Mr Harrington about certain discrepancies. It seems Mr Harrington was asked if he wanted a support person but he declined.

[15] A final meeting took place on 26 March 2014, attended by Mr Harrington, Mr Hennrie and Mr Sandon at which Coates dismissed Mr Harrington and gave him a written notice of dismissal.

Applicant’s evidence and submissions

[16] Mr Harrington provided a statement and gave lengthy oral evidence. In written and oral evidence, including under vigorous cross-examination, he maintained:

● he was not aware prior to entering the site on 19 March 2013 that the area (and indeed the entire 13 kilometres) was live and a hazard zone;
● he did not see the tram until after he had positioned the truck and loaded the toilet;
● he assumed at the time the tram must be running on auxiliary or battery power;
● on leaving the site he was told by McConnell Dowell for the first time that the site was live, a matter that he was disturbed by because of the danger it presented to him and others;
● he loved his job and was very loyal to Coates, and thought they would recognise his good work and loyalty. He did not suspect his job was in danger;
● he did not read and did not agree with all the content of the incident report although he did sign it when asked by Mr Hennrie.

[17] Since being dismissed he has struggled to find alternative employment and earned some $18,500 as a casual cleaner employed only for 3 months. He had sold assets in order to meet financial commitments. At the time of hearing he was aged 52 years. He had been working since the age of 12 and had received no secondary schooling.

[18] He admits that on 19 March 2013 he entered the site (that he thought was dead), and that he operated the crane including within the 3 metre limit. He submits:

● he was not guilty of the misconduct alleged in that he did not know, and could not have reasonably suspected, the site was live;
● the conclusion that he was guilty of serious misconduct is not supported by the evidence;
● the dismissal was harsh due to the heavy financial impact it had on him and his family;
● his unblemished record is a significant factor in considering whether the dismissal was harsh, unjust or unreasonable;
● even if he were found guilty of a safety breach, dismissal is disproportionate and therefore harsh.

[19] Mr Harrington submits in support of this evidence that he did not know the site was live as follows:

● Coates’ training as to identifying and working on live sites was inadequate;
● there were no hazard identification markings at the site on 19 March 2014 whereas the training made it clear there would be such makings and indicators;
● Coates failed to pass onto him and others information about the site going live given to it by McConnell Dowell on 26 February 2014;
● the information was in fact provided only after the safety incident;
● there was no information on the work order indicating the site was in a hazard zone;
● his conduct in making telephone inquiries immediately before and after the safety incident is consistent with his claim.

[20] In his response to the show cause letter, Mr Harrington detailed his employment history with Coates and the events on the day. He pointed out that there had been no advice given to him or others at toolbox meetings about changes to the site and the reasons he parked the truck where he did. He admits the crane was operated within 3 metre of the overhead lines but reiterates his belief that they were not live. He acknowledged: “in hindsight that I did the wrong thing and can only apologise for my error of judgement, and have learnt a very valuable lesson.”

[21] Mr Harrington exhibited to his statement:

● a letter from McConnell Dowell to Coates dated 26 February 2014 advising that all 13 kilometres of line would go live from 6am on 3 March 2014 (attachment “I”);
● an email from Mr Hennrie to other Coates managers dated 4 March 2014 asking that the material be “toolboxed” with “all staff required from time to time to enter the … site” (attachment “J”);
● a letter from Andrew Taylor, Sales Manager - Markets for Coates, dated 4 March 2014 in response to McConnell Dowell’s letter stating that “we have now advised all relevant staff”, including, among other things, by toolbox discussions with relevant site personnel and geographical branches” (attachment “K”);
● an email dated 19 March 2014 from Mr Lowry, HSEQ Manager, Coates Hire North, to other senior Coates personnel, apparently following the safety incident involving Mr Harrington, calling urgently for McConnell Dowell’s requirements arising from the letter of 28 February 2014 to be communicated “immediately, if possible, but no later than first thing tomorrow (Thursday) morning” (attachment “L”);
● a redacted Coates’ work order dated to start 1 April 2014 including an explicit safety warning about the site being live and the site access requirements, providing contact details for Sean Muller (attachment “M”);
● page 3 of an otherwise unidentified document marked “N” including a note headed “High Potential Incidents” detailing Mr Harrington’s safety incident with the date 19/3/2014, noting that an alert had been sent out, requiring JSEAs for all deliveries and pickups, and stating that “JSEA use needs improvement”. 2

[22] He says these documents were delivered anonymously to his home a few weeks after he was dismissed, and that he was not previously aware that the entire site was live full-time and there had been no toolbox discussion at his branch.

[23] In oral evidence Mr Harrington recalled training, delivered by McConnell Dowell representatives on 16 September 2013 in preparation for commissioning starting in October 2013. 3 The training was delivered to 30 or 35 people and lasted for some 2 hours including a break. Mr Harrington says he and the other participants handed in training materials at the completion of the program. The training materials indicated: “areas under Testing & Commissioning will be signposted/taped off and advised to the workforce”. It was the most recent safety training given to Mr Harrington. Mr Harrington’s evidence is that the assessment was heavily coached.4

[24] On the site, Mr Harrington’s evidence is that there were no warning signs, lanyards or tape 5 and no indication on his work order6 that the site was a hazard zone requiring a work permit. He is adamant that at the time he performed the work the site was not, to his knowledge, live or commissioned, but to the contrary that the site was “dead”.7

[25] He says he tried to contact Mr Muller (who had ordered the pick up) while in transit to the site, and again on arrival while waiting outside the site. He failed to make contact and so called Ms Lazer, a Sales Coordinator of Coates, asking her to call the client and clarify the job. She returned his call shortly after confirming the task was simply to remove the vandalised toilet and not replace it. Mr Harrington’s evidence is supported by telephone records. 8 At no point, Mr Harrington says, was the fact that the site was live ever mentioned to him by Ms Lazer.

[26] His evidence is that the toilet did not need to be pumped out before loading, that task having apparently been undertaken by others beforehand.

[27] He says that he did not become aware of the tram’s presence behind his truck until he put the crane down and heard its bell ringing, by which time he had already lowered the toilet onto the truck bed. 9 Once seeing the tram, he concluded that it must be running on auxiliary or battery power, as he was convinced the overhead lines were dead.10

[28] On leaving the site, Mr Harrington says he was met by McConnell Dowell’s Mr Meyer who informed him for the first time that the site was live and that the power had been isolated when his truck was noticed on site. 11 Mr Harrington responded in disbelief.12 His evidence is that Mr Meyer, on being told who ordered the pick up said: “I’m gonna kick his arse. He knows the new protocol. He should not have got you to pick up that toilet.”13 He says he then telephoned Ms Lazer again, complaining that the site was, unknown to him, live. On her advice he added a notation to the work order.14

[29] As to the meetings, Mr Harrington says the typed record of the first meeting is not accurate, and that he had been silly to sign it; 15 he was nervous and overwhelmed, and had placed faith in his Coates’ co-workers despite not being able to read the document without his reading glasses and telling his colleagues so.16 He says that at the later meeting the Coates’ staff agreed that one of them, Mr Irvine, would act as support person, but offered no apparent support. Mr Harrington did not nominate Mr Irvine as his support person,17 and submitted that if he had nominated one it would have been his wife or his best friend, a Senior Sergeant of Police, who would then have been available as witnesses to assist the Commission.18

[30] Mr Christodoulou urged the Commission to consider certain earlier safety failings of Coates, submitting that in fact it was Coates that had placed Mr Harrington in danger by its failures to alert him to the risk of a live site rather than Mr Harrington having committed misconduct by his acts.

Respondent’s evidence and submissions

[31] Coates provided witness statements of Mr Sandon, Mr Cotter, Mr Hennrie and Ms Lazer. Ms Lazer was not made available for examination 19 but the other witnesses were, and were cross-examined on Mr Harrington’s behalf.

[32] Ms Lazer’s evidence is largely confirmatory of Mr Harrington’s evidence that he made the calls, but not as to the times. 20

[33] Mr Sandon gave evidence by way of a table showing training Mr Harrington had received in the course of his employment with Coates, 21 plus training assessment entitled Safety Access Testing and Commissioning Zones Induction22 that was not in the table, undertaken by Mr Harrington on 16 September 2013 and certifying him competent. That assessment predates the “go live” in October 2013.

[34] Mr Sandon’s submission is that nothing after October 2013 altered Mr Harrington’s safety obligations. This assertion is the basis of the Further Submissions of the Respondent, that the training in September imposed on Mr Harrington an obligation to “contemplate that the track was likely to be live” 23 and that he “was not entitled and could not have believed that there were no circumstances in which the track could not have been live” [sic].24 He confirms that the effect of the training was to instruct employees that live areas were hazard zones, and that:

particular identification markings and special procedures were in place in the event that work might involve access to or be in close proximity to a hazard zone. It was also an essential part of the procedure that employees whose work took them into a hazard zone were required to obtain a special permit, no matter what they were sent out to do. 25

[35] Mr Sandon could not point to any instruction or further training given to Mr Harrington after the September 2013 training.

[36] Mr Sandon also gave evidence as to the meetings that he attended with Mr Harrington. He says of the meeting on 24 March that Mr Harrington said “he was aware of the tram moving as he pulled up to the site to collect the portable toilet”. 26

[37] Mr Sandon admitted in oral evidence that the CCTV footage did not show visible hazard zone markings, and that the training did not address details of how a worker might obtain a work permit. He was questioned as to discrepancies in the evidence about when the tram arrived (before Mr Harrington’s arrival or during loading) and whether or not Mr Harrington pumped the toilet. He says that Mr Harrington told him the tram arrived as Mr Harrington was entering the site. 27

[38] Mr Sandon confirmed in his oral evidence that the 3 main factors considered in the decision to dismiss were: (a) the seriousness of the incident, (b) Mr Harrington’s training and (c) length of service. 28

[39] He also stated that by 19 March 2014 Mr Harrington’s branch had not been “toolboxed” about McConnell Dowell’s letter advising the entire line would be live 6am on 3 March 2014. 29 He says when pressed by Mr Christodoulou30 on the failure to advise, that fact had been taken into consideration in the dismissal but could point to no evidence to that effect.

[40] Mr Sandon later asserted:

… there was some weight attributed to it. It gets taken in context with everything else … that there was a tram there that was quite clearly operating at the time… it was something that there was some weight attributed to it, but it was overridden by the fact that there was an operating tram there. 31

[41] He admits there was a deficiency in the toolbox communication, monthly at Coates, not daily as might be experienced on construction sites. 32

[42] He also noted that work orders were commercial documents and not safety documents, but conceded that the work order given to Mr Harrington 33 did not contain any safety warning whereas a work order after the incident did contain a safety warning.34 He says of the inclusion of the warning:

… It was a lesson learnt from the organisation. As part of the investigation process we included that wording. 35

[43] Mr Cotter exhibited an unsigned copy of the typed incident report, 36 in which it is stated that Mr Harrington said a tram approached as he was pumping the toilet. The document records Mr Harrington as stating that the “day was extremely busy and the trams made it worse”, and as to whether he noticed the power lines, “No just focussed on getting the Job done” [sic].

[44] Mr Cotter was cross-examined on the handwritten notes he took in his investigation meeting on 21 March and the veracity of the content of the statement. The notes were given to HR and no longer in his possession. He remained of the view that the statement recorded what Mr Harrington told him, saying several times that his role was merely to take the statement. 37 On viewing the CCTV footage, Mr Cotter conceded that Mr Harrington was looking up at one point, but could not say if he was attending to the powerlines.

[45] Mr Hennrie also exhibits an unsigned copy of the incident report, and says he asked Mr Harrington to read and confirm the content when he met with him on 21 March (the second meeting), saying he raised no objection. 38 In oral evidence Mr Hennrie denied that Mr Harrington said that he needed his glasses to read the document given to him, and could not recall if he was wearing glasses at the time. He says that he gave the statement to Mr Harrington, that Mr Harrington read it (or appeared to read it), signed it and returned it to Mr Hennrie. The CCTV footage was then viewed and Mr Hennrie served Mr Harrington with the show cause letter. He says he would have served the show cause letter even if Mr Harrington had refused to sign it, based on the CCTV footage,39 but later states that the show cause was based on the signed report as well as the footage.40

[46] Coates submitted that the September 2013 training put Mr Harrington on notice that any part of the project could be live and a hazard zone at any time, and suggested that he knew the entire system was under test. 41

[47] Coates also submits that the time Mr Harrington first became aware of the tram:

is crucial to the resolution of this issue. If the Commission accepts the Respondent on this that is the Applicant was aware before he commenced to operate the crane, then whatever the Respondent might or should have done in response to the McConnell Dowell letter becomes irrelevant as does the timing of the telephone calls. 42

[48] Coates concludes that Mr Harrington’s evidence to the effect that he did not notice the tram for an extended period was “untrue … a lie to protect a position he knows was untenable” 43 submitting it “inconceivable” that Mr Harrington could not or did not notice the tram.44

Consideration

[49] The differences of fact asserted between the parties are of relatively small compass, being matters about the training and what it meant for Mr Harrington’s competence; precise details of events before, during and after the safety incident; and details of the meeting with Mr Harrington in investigating the incident and disciplining him.

[50] The matter was hard fought. Mr Harrington was subjected to forceful cross-examination as to the truth or otherwise of his version of events.

[51] Given the seriousness of the implications for Mr Harrington in that he was dismissed, it is relevant to have regard to the principles in Briginshaw v Briginshaw 45 as they apply to the requisite understanding of ‘balance of probabilities’ in unfair dismissal cases.46

[52] Coates’ case is that Mr Harrington acted in an unsafe manner when he knew or should have known otherwise.

[53] Mr Harrington’s case is essentially that he discharged his duties properly without any notice or information relevant to specific requirements as to operating in an unmarked hazard zone.

The CCTV footage

[54] Both parties stressed the importance of the CCTV footage, and so I make the following observations of it. The time shown on the recording at its commencement is 10.22:25am. Neither party objected to that being accurate. The recording lasts 3 minutes 22 seconds.

[55] At the commencement, both the tram and truck are already in position and it is impossible to know from the footage which arrived first. 47 The hard hats of some workers are seen in the foreground in the opening seconds. A utility truck drives across the tracks between the tram and truck at 6 seconds to 9 seconds. Throughout the recording, traffic is seen passing on the road adjacent to the track.

[56] Mr Harrington is very focussed on the task of loading the toilet onto the truck and operating the crane for that purpose. He does not look at the tram parked some short distance behind his truck.

[57] At about 1 minute 15 seconds into the footage, the camera is panned up to reveal the overhead wires, and then zoomed out at 1 minute 20 seconds to show 3 workers 48 in high visibility vests and hard hats a short distance in front of the truck on the platform. There is no interaction between the workers and Mr Harrington.

[58] It is not in evidence whether the camera was being operated manually or automatically.

[59] At about 2 minutes 59 seconds a pedestrian walks across the tracks between the tram and truck in one direction; and at 3 minutes 7 seconds, until the end of the recording, 3 workers in high visibility vests and hard hats walk across the tracks between the truck and the tram in the other direction with a 4th worker following and catching up with them. There is no interaction between the pedestrian and the workers, or them with Mr Harrington.

[60] The sequence ends with Mr Harrington securing his crane and proceeding possibly towards the cab of the truck, at about 3 minutes 20 seconds and the group of 3 workers proceed about their business moving alongside the track towards the truck, paying no attention to Mr Harrington, the truck and crane or the tram.

[61] At no time in the CCTV footage is any of the workers in vests and hard hats apparently concerned about Mr Harrington, his truck, the stopped tram or the errant pedestrian.

[62] There are no visible hazard zone signs, tape, bunting or other indicia that would objectively give rise to concern that the site was live and dangerous.

[63] In my view, Mr Harrington is noticeably taking care with his loading, observing closely the overhead wires and avoiding them as an obstacle, and focussed intently on his job.

Was the dismissal unfair?

[64] Mr Harrington submits that the dismissal was unfair in the terms of s.385(b). In considering his and Coates' submissions and the evidence, the Commission must take into account the factors stated in s.387 in considering whether the dismissal was harsh, unjust or unreasonable.

(a) Valid reason

The Commission must be satisfied that the employment was terminated for a valid reason by reference to the Commission’s assessment of the factual circumstances, and not by reference to whether the employer has a legal right to terminate the employment. 49 The reason must be “sound, defensible or well founded” and cannot be “capricious, fanciful, spiteful or prejudiced”.50

[65] The following observations of the Full Bench in King v Freshmore 51are relevant to the Commission’s deliberation of whether the dismissal was for a valid reason:

When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.

[66] In this case the reason for the dismissal was serious misconduct, occasioned by Mr Harrington’s entering a live site and operating his crane. The show cause notice specified “a significant safety breach” involving “the loading of a portable toilet by you onto a Coates Hire truck that was parked on the rail line of the light rail under live power lines.” The conduct was labelled “a serious safety breach that constitutes serious misconduct”. The notice of termination characterised the safety incident as “a fundamental breach of [Coates’] value of ‘safety first’.”

[67] It is the obligation of the Commission to ascertain on the evidence before it if the complained of conduct occurred and what the conduct involved was. 52

[68] I have before me oral and documentary evidence, including CCTV footage and the events preceding and immediately following the safety incident and the disciplinary process.

[69] The fact that Mr Harrington entered the site while it was live and operated the crane is not in dispute. That signage and other indicators of a live site were not in fact present, and the work order did not indicate that a work permit was required are also not disputed by Coates.

[70] It is easy to conclude that a breach of safety occurred and that there was danger in operating a crane in proximity to live overhead wires.

[71] But the question is not whether that breach occurred. It is whether the breach that did occur in fact, on objective grounds, give rise to a valid reason to dismiss Mr Harrington.

[72] Coates’ evidence is that Mr Harrington either (a) actually knew the site was live, or (b) should have known it was live. He was an experienced operator of 12 years with Coates, and had received (and succeeded) at the requisite training; there was a tram on the tracks, at least at some point after he arrived on site. Coates’ evidence is that it advised its operators sometime soon after 4 March 2014 that the site was live, but in any case, his training in September 2013 was sufficient to enliven his responsibility to attend to whether a site was live, and nothing since changed that.

[73] Mr Harrington was a truthful and sincere witness. Even under tough cross-examination his version of events remained consistent and convincing. When he was uncertain or confused, he said so. He made concessions when appropriate to do so.

[74] On the balance of probabilities, I am satisfied that Mr Harrington was not aware on entering the site, and while operating his crane, that the site was live.

[75] I am satisfied that if he had known or suspected to the contrary, he would have taken appropriate steps, especially given the presence of other workers nearby who may have assisted him in determining if the site was live despite the absence of the overt signs indicated by his training.

[76] I am persuaded on the balance of probabilities that he did not notice the tram until late in the loading process, as he was busily focussed on his task of removing the vandalised toilet both properly and safely. He was mindful of the overhead lines as an obstacle to be avoided, but at no point during the loading understood them to be a danger to his life and the safety of others.

[77] Even if he did notice the tram slightly earlier in the loading process, his task would be to remove the toilet and truck expeditiously and safely, and thereby cease obstructing the track.

[78] While his thoughts that the tram was operating on battery power may seem less likely than thinking the site was live, it is a conclusion open on the facts. Mr Harrington was certain the site was dead (otherwise he would not be on it without a work permit and superfootage). He is a crane operator, little schooled, and though he presented as having an inquiring mind and a genuine interest in his job, his conclusion must be seen and judged in its context, including his education, skills and the level of his job in Coates’ hierarchy. I conclude on the balance of probabilities that the presence of the tram did not give rise in him a fear that the site was live.

[79] While not relying on the following, it is interesting to note the relaxed attitude of the other workers visible on CCTV in front of the truck and those who walked between the truck and the tram.

[80] As to the signed record of interview, the inconsistencies between that document and the evidence of both Mr Harrington and the Coates’ employees also must be seen in context. The investigation was conducted by a person apparently not familiar with the site and job in question, hastening to perform his duties. Mr Harrington was no doubt concerned and even flustered at both the first and second meetings and may not have expressed himself eloquently. I note the inconsistencies. I accept that he signed the document either not having read it, or failing to comprehend its detail, and that he may have said things in the context of a stressful and rapid interview that he would not have said in careful contemplation. By the time of the second interview, later on the same day as the first, he had not seen the typed document or had an opportunity to review and consider its content independently. On the balance of probabilities, based on the cogency and consistency of Mr Harrington’s evidence, I conclude that the words used in the document do not reflect his actual understanding of events, whereas his other evidence does.

[81] It follows from my findings that the proper character of the factual circumstances are different from those relied on by Coates.

[82] The show cause notice characterised Mr Harrington’s conduct as serious misconduct and a breach of safety requirements. As noted above, on the understanding of Mr Harrington that the site was dead, the actual loading and crane operation was seemingly conducted in a safe way.

[83] I do not agree that the conduct amounted to serious misconduct in all the circumstances, including:

● the lack of explicit advice to Mr Harrington by Coates or McConnell Dowell that the work was in a hazard zone;
● the absence of the indicia his training told him would be present on a live site;
● the fact that he had received no additional training or warning of a change of circumstances between September 2013 and the date of the incident; and
● the apparent safety of his actual conduct.

[84] The statutory definition that affords guidance as to what is serious misconduct, Fair Work Regulations 2009 at regulation 1.07, provides as follows:

Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation(1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer's business …

[85] It is clear that Mr Harrington’s conduct on my findings cannot have been wilful or a deliberate conduct: he genuinely thought the site was dead and that his undertaking of his duties was completely safe. Objectively, there was a risk to health and safety because the site was live, at least until isolated by McConnell Dowell (just when that happened was not the subject of evidence).

[86] Coates led no evidence to the effect of the safety incident on its reputation and did not rely on regulation 1.07(2)(b)(ii) in support of its assertion of serious misconduct.

[87] In assessing Mr Harrington’s conduct as a safety breach, I consider the following matters:

a. the seriousness of the incident: the conduct may have imperilled Mr Harrington had he made contact with or come into close proximity to, live overhead power lines. The fact is he did not, and was taking considerable care, evident in the CCTV footage and reinforced by his evidence, to avoid doing so. He was operating as a prudent crane operator who believed the site was dead. But as the site was actually live until isolated by McConnell Dowell, the incident was potentially serious;

b. Coates’ safety training: Mr Harrington had received training prior to the “go live” in October 2013, but no additional training or direction since. He demonstrated that he understood the training, and he conducted himself in accordance with it;

c. Coates’ policies: Mr Harrington’s conduct was entirely consistent with Coates’ policies and training in that he was not aware the site was live and was never put in a position that he should have known;

d. Coates’ ‘safety first’ policy casts an obligation not just on individual workers but also on the Coates to afford systemic safety; 53

e. isolated or repeated incident: there is no evidence of any prior safety breach by Mr Harrington. Until the safety incident he had an unblemished record. This was an isolated incident;

f. direction or warning: Mr Harrington was given no specific direction or warning that the site he was directed to was live or that the status of the project had changed. He was given general training as at September 2013, but no further direction after the letter of 26 February 2014;

g. other workers on the site did not raise an alarm or warn Mr Harrington of the hazard;

h. position and status: Mr Harrington held no managerial or supervisory responsibilities that suggested his conduct should set an example to others. He contacted Mr Muller, through Ms Lazer, and in terms of discharging his duties, acting on their advice but received no particular guidance, although it seems Mr Muller knew of the “new protocols”.

[88] In my view, Mr Harrington’s conduct was not a deliberate, wilful, reckless or even negligent breach of safety requirements. On that basis I conclude it cannot be characterised as serious misconduct.

[89] I conclude that subjectively he was working safely and in accordance with all the obligations that Coates required of him at the time. The cause of his misdeed was his ignorance that the site was live.

[90] I refer to the following authorities in considering whether his misdeed still constituted grounds for a valid reason to dismiss.

[91] In Commonwealth of Australia (Department of Defence) v Black 54 the dismissed employee’s negligence caused a financial loss to the employer of $3.9 million. It was found at first instance55 there was a valid reason but that dismissal was harsh given the range of disciplinary options open to the employer, and reinstatement was ordered. An appeal was dismissed.

[92] In Nguyen v IGA Distribution (Vic) Pty Ltd 56, Bissett C at first instance noted:

IGA is entitled, and was correct, to treat the collision seriously. That they acted promptly is to their credit. Where an incident with health and safety implications occurs it may well provide a valid reason for dismissal but just because there are health and safety implications does not, in and of itself, provide a valid reason for the dismissal. The surrounding circumstances must be assessed. In this case Mr Nguyen felt pressured to make up time he had lost. He was concerned that he might be given a warning and he was frustrated at the delays.

On the basis of the evidence before me and the findings I have made with respect to the conduct of Mr Nguyen and the circumstances of the collision I do not find that IGA had a valid reason to terminate Mr Nguyen’s employment in that the decision is not, in my finding, defensible.

This does not, however, exonerate Mr Nguyen. He was careless and reckless in the matter. His carelessness may have had serious consequences. He should have been subject to appropriate disciplinary action and training. Termination of his employment was however in these circumstances not justified …

Even if I had found that the reason for the termination was valid there are compelling reasons to consider that the termination of Mr Nguyen’s employment was harsh. This is so from both the personal effect of the termination on Mr Nguyen but also because of the disproportionate nature of the punishment (termination of employment) following 23 years unblemished service compared to the gravity of the misconduct - that is a collision that was caused by careless or reckless behaviour of Mr Nguyen but has been found by me not to be deliberate.

[93] Reinstatement was ordered but on appeal the Full Bench 57 held the conduct was a valid reason to dismiss but adopted the Commissioner’s alternate reasoning at paragraph 123 and upheld his reinstatement.

[94] In Gottwald v Downer EDI Rail Pty Ltd 58, the applicant was dismissed for a serious safety breach caused in part by his negligence, in which a rail car was allowed to roll into a rail workshop building. No one was harmed, but the incident was potentially catastrophic. Senior Deputy President Watson noted:

Section 652(3)(a) of the [now repealed Workplace Relations] Act requires the Commission to have regard to “whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees)”. It appears to me that the kind of conduct exhibited by the Applicant is the kind of conduct that is intended to be captured by the Act. That is, the kind of conduct that is relevant need not only be wilful, malicious or intentional conduct, but conduct that can imperil or put other employees in the workplace in jeopardy. Apart from its other characteristics, the Applicant’s conduct in this matter was conduct of this kind.

[95] The dismissal was found to be for a valid reason in that he:

… intentionally refused to exercise his authority as shunt pilot over his work mate for fear of peer rejection. To avoid the personal censure of his co-worker, the Applicant ceded his control over the shunt as the shunt pilot and put the safety and lives of other employees at risk, not in a hypothetical manner, but in a very real and tangible way. 59

[96] Ultimately His Honour held the dismissal to be harsh, unjust and unreasonable and order compensation in lieu of reinstatement.

[97] This case is unusual in that on my findings Mr Harrington was neither wilful nor negligent. He was uninformed of relevant risk factors, and it may be that he could have acted differently to apprehend the risks. But did the conduct as I have found it amount to a valid reason to dismiss Mr Harrington? I conclude it does not.

[98] Mr Harrington may have done things that had serious safety risks, but he did not operate his crane in disregard of reasonable health and safety requirements. I conclude he did not operate it recklessly or negligently.

[99] He was never put into a position to know that revised requirements were in effect: there was no notation on the work order; no oral advice in his telephone calls to Coates; no site markings, flags or warnings; no additional training or change in job requirements following the “go live” letter from McConnell Dowell until after the safety incident; and no warning by McConnell Dowell workers at the site. 60

[100] Both parties argued forcefully as to the effect of McConnell Dowell’s letter of 26 February. Mr Christodoulou 61 put that the letter made all the difference, effectively rendering the September 2013 training out-of-date. Coates argued that it changed nothing: it should be able to rely on the discretion of a man as experienced and competent as Mr Harrington to operate his equipment safely.

[101] On balance, I have concluded that the change in the project status may have made a difference, but there was no evidence before me about it to allow a ruling in the context of this factor. It is this: if all 13 kilometres constituted one contiguous hazard zone, and the practice of identifying hazard zones served no purpose and could, should or would be abandoned, that would have been a significant change in safety practices and inconsistent with the September 2013 training.

Conclusion on valid reason

[102] I find that there was no valid reason to dismiss Mr Harrington.

[103] Even if I am wrong in this finding, for reasons given below the dismissal was harsh, unjust and unreasonable.

(b) Notice; and

(c) Opportunity to respond

[104] The cases make it clear that notice of the valid reason to terminate must be given to the employee before the decision to terminate is made;  62 in explicit terms;63 and in plain and clear terms.64

[105] It was put on Mr Harrington’s behalf that Coates had predetermined to dismiss him and that the meetings and notices were, in effect, a charade.

[106] I reach no such conclusion on the evidence before me.

[107] Mr Harrington was served a notice to show cause. The notice was straightforward and clear. He responded in clear, convincing terms, arguing his case, making admissions against interest, and pleading for consideration of his circumstances.

[108] He was invited to attend subsequent meetings in which he may have further pressed his case.

[109] I conclude Mr Harrington was given notice of the reason that Coates thought was relevant, being serious misconduct, and that he had opportunity to respond. But as discussed below, I am not satisfied that Coates paid proper heed to the response, and was likely diverted by overemphasising the mere presence of the tram as an overriding factor.

(d) Support person

[110] This consideration, in s.387(d), refers to an unreasonable refusal to allow a support person and does not impose a positive obligation on the employer. 65

[111] It appears Mr Harrington did not actively seek a support person, but it remains that Coates took it upon itself to provide him with one, Mr Irvine, a person wholly unsuited to the task in the circumstances.

[112] Mr Harrington, at the time of the 2nd and 3rd meetings appears to remain of the belief that Coates’ managers were supportive of him. 66 I am not persuaded by Mr Hennrie’s evidence under cross-examination that Mr Harrington brought Mr Irvine in as his support person: it is simply not consistent with the other evidence67 nor plausible.

[113] In the somewhat convoluted and unusual circumstances of this matter, I conclude that Mr Harrington was effectively denied an opportunity to nominate a support person of his choice. However, I do not place great weight on this: there is inadequate evidence of “unreasonable refusal”. The finding goes more to the overall fairness of Coates’ processes and whether Mr Harrington was afforded procedural fairness.

(e) Warnings of unsatisfactory performance

[114] There were no prior breaches or reasons to give warning. This factor is relevant in that Mr Harrington’s prior performance was not in question and his record unblemished.

(f) Size of enterprise on procedures; and

(g) Absence of expertise in the enterprise

[115] Coates concedes these factors are not relevant.

(h) Other matters

[116] Mr Harrington’s unblemished record over 12 years stands in his favour. While the dismissal letter and Coates’ witness evidence purports that it was taken into account, there is nothing beyond a mere assertion to that effect, and no demonstration by Coates as to how it was taken into account. The dismissal was harsh in light of his record and his evident enthusiasm for his job with Coates.

[117] Further, the evidence is clear that Mr Harrington had not been advised of the changes to the site status on 3 March 2014 and I conclude on the balance of probabilities the urgent email of 19 March 2014 (the day of the safety incident) arose after the safety incident and was likely a direct result of Coates recognising that it was yet to advise its staff, including Mr Harrington. The fact that Coates had not conducted the toolbox meetings or otherwise given advice should have been accorded significant weight in considering an appropriate sanction against Mr Harrington. I consider his dismissal was harsh because insufficient weight was placed on this fact.

[118] Further, the dismissal was harsh because of the overriding emphasis placed on the mere presence of the tram, and the failure to test whether proper weight was given to that fact. Mr Harrington was not told that the mere presence of the tram was thought to be compelling evidence of serious misconduct. That weight was reflected in the incredulity repeatedly expressed by Coates that Mr Harrington did not see the tram or apprehend once he did that the site must be live. He was not put in a position to comprehend the facts as interpreted by Coates in its disciplinary process and respond to them. He was thereby denied procedural fairness.

[119] Coates’ process in disciplining Mr Harrington, in my view, otherwise failed to afford him natural justice. Mr Harrington placed trust in his superiors, and they allowed him to do so. He was not properly supported and instead led to think at the 2nd meeting that Mr Irvine might be his support person when he was no such thing. Documents that might have assisted him frame his case in the disciplinary proceedings were not provided to him, including it seems the statement he had signed. He had to seek those documents out for himself. 68

[120] The effect of the dismissal had been demonstrably harsh financially. Mr Harrington has had grave difficulty finding alternative work, other than 3 months casual work as a toilet cleaner despite applying for numerous positions and participating in 3 interviews. He has sold his car and a trailer to meet commitments. He considered his age is a telling factor against his prospects.

[121] I also consider that Coates failed to take properly into account Mr Harrington’s response to the show cause notice, instead seemingly proceeding with its disciplinary process despite its content and obvious flagging of his view that dismissal would be disproportionate.

Conclusions as to dismissal

[122] Mr Harrington was dismissed for serious misconduct in the form of a safety breach.

[123] On the balance of probabilities, in my view, the conduct was not serious misconduct. The safety incident did not amount to a valid reason to dismiss Mr Harrington.

[124] Further I find that the dismissal was harsh, unjust and unreasonable for its effects on Mr Harrington, the defective process used by Coates, and its failure to properly consider his circumstances and response to the show cause notice and the weight to be given to salient facts.

Remedy

[125] Mr Harrington’s original application sought only “compensation”. He now seeks reinstatement. There is no difficulty with the original application and Coates raises none. In final oral submissions both parties accepted that reinstatement might be a valid order. 69

[126] The scheme of the Act is that reinstatement is the primary remedy to be considered and compensation (in the alternative) must not be ordered unless the Commission is satisfied “that reinstatement of the person is inappropriate”. 70

[127] If Mr Harrington did not want to be reinstated, 71 that would be a factor to be considered. However it is now clear that he does seek reinstatement. Whether that is informed by the difficulty he has experienced in obtaining suitable alternative employment in the ensuing year since his dismissal is not relevant.

[128] In all the circumstances, I am of a mind to consider whether reinstatement is appropriate and to the extent necessary would give leave for Mr Harrington to amend his application accordingly.

Trust and confidence

[129] It will not be appropriate to reinstate a dismissed employee if the employer has lost trust and confidence in the employee such that reinstatement is impractical. Loss of trust and confidence is not necessarily conclusive. 72

[130] As the Full Bench noted in Perkins v Grace Worldwide (Aust) Pty Ltd (Perkins):

Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.

[131] To ascertain whether Coates has lost trust and confidence in Mr Harrington, such that reinstatement is inappropriate, the Commission must, in terms of the guidance offered in Perkins, consider whether there is sufficient trust to allow the employment relationship to be viable and productive, and the rationality of the employer’s view that reinstatement is inappropriate because of a loss of confidence and trust. Whether that view is rational is a matter for consideration of the material before the Commission.

[132] It is clear that Mr Harrington’s conduct on the day was potentially dangerous, but he had no previous record of any safety breach, and his uncontradicted evidence is that he is a safe operator of the equipment with 12 year’s experience. He was not advised by toolbox meeting of any change following McConnell Dowell’s letter of 26 February 2014, and his training to that point was explicit in that live sites would be identified by appropriate notices and markings.

[133] The changes put in place by Coates from 19 March 2014 reinforce the seriousness with which they viewed the incident. However they also reinforce the submissions on Mr Harrington’s part that the previous advices and procedures were insufficient in the circumstances.

[134] Mr Harrington struck me as an honest and very willing worker, albeit one who had, in his own words and with hindsight, done the wrong thing, an admission against interest that reinforces my conclusion.

[135] There was no evidence of any difficulties between Mr Harrington and any other Coates’ officer, otherwise than in relation to the allegations that led to his termination. There is no reason to suspect that, if Mr Harrington were reinstated, he would not perform his duties in a satisfactory manner and in the best interests of Coates. He had served the company for 11 and a half years before his termination and there was no criticism of his work performance.

[136] Having regard to the whole of the relevant material, I conclude this is not a case where the reinstatement of Mr Harrington to his former employment, or to an equivalent position, should be regarded as impracticable.

[137] In deciding to order reinstatement, I appreciate that it will be necessary for Mr Harrington and his supervisors, as was said in Perkins, to display some magnanimity towards each other at the recommencement of their working relationship, but there is nothing in the evidence that suggests any of those who provided evidence is incapable of doing this.

[138] An order will issue for Mr Harrington’s reinstatement.

Delay and remedy

[139] There has been a lengthy delay from the time of filing the application to this matter being heard before me. The delay was not caused by either party.

[140] In my view it means that any earlier submissions as to remedy, in light of my finding that the dismissal was harsh, unjust and unreasonable and that reinstatement is appropriate, need to be revisited.

[141] Conscious though I am of the delay and the need for the parties to resume their employment relationship, I consider it necessary to invite further submissions on details of the remedy in ss.391(2), (3) and (4) being orders to maintain continuity and to restore lost pay, and the appropriate placement for Mr Harrington in accordance with s.391(1), namely whether he is reinstated to his former position or to another position on no less favourable terms.

[142] I will order as to the making of those submissions by the parties.

[143] Should the parties come to an accommodation on these matters, of course, there would be no need to further hear them.

COMMISSIONER

Appearances:

Mr G Christodolou on behalf of Mr Harrington.

Mr D Miller from Australian Industry Group on behalf of Coates Hire Operations Pty Limited.

Hearing details:

2015.

Brisbane:

23 March and 26 March.

Final written submissions:

Applicant, 26 March 2015.

Respondent, 26 March 2015.

 1   Harrington v Coates Hire Pty Limited[2014] FWC 5940; Coates Hire Pty Limited v Harrington unreported C2014/6419 (Full Bench)

 2   JSEA refers to job safety and environment analysis. The Respondent noted that these documents were not formally proved. Witnesses did not challenge their veracity under cross-examination and appeared to accept the documents

 3   detailed in annexure MNS-2 to the Statement of Mr Sandon

 4   Transcript dated 23 March 2015 at PN79.

 5   see also Transcript dated 23 March 2015 at PN332 and following.

 6   in evidence exhibited to Ms Lazer’s statement as CL-1 including Mr Harrington’s annotation Mr Harrington, apparently made contemporaneously, noting among other things that he had “plenty of room to lift and place toilet”

 7   Transcript dated 23 March 2015 at PN33; PN366; PN371; PN373; PN385; PN387; PN480; PN595; PN657-PN670; PN676 and following; PN771 and following.

 8   Attachments B and C to Statement of Mr Harrington.

 9   Transcript dated 23 March 2015 at PN104; PN115 and following; PN562-PN566; PN571-PN576; PN607.

 10   Transcript dated 23 March 2015 at PN122 and following.

 11   Mr Meyer did not give evidence.

 12   Transcript dated 23 March 2015 at PN131.

 13   Statement of Mr Harrington at paragraph 10 and Attachment A; Transcript dated 23 March 2015 at PN131.

 14   Attachment A.

 15   Transcript dated 23 March 2015 at PN478-PN479.

 16   Transcript dated 23 March 2015 at PN464-PN469; PN506-PN507; PN519-PN520; PN537; PN640.

 17   Transcript dated 23 March 2015 at PN782 and following.

 18   Transcript dated 23 March 2015 at PN1728.

 19   apparently no longer working for Coates: Transcript dated 23 March 2015 at PN1083.

 20   Mr Christodoulou pointed out apparent discrepancies between her evidence and telephone records (PN1085; PN 1485 and following) and invited the Commission to draw an adverse inference from her not being produced. I only conclude that her evidence would not have added to the Respondent’s case: Jones v Dunkel (1959) 101 CLR 298; Xiu Zhen Huang v Rheem Australia Pty Ltd - PR954993 and REX Airlines v Richards[2010] FWAFB 8753. I commented during the hearing as to the impact on the weight attached to Ms Lazer’s evidence: Transcript dated 23 March 2015 at PN1528.

 21   Attachment MNS-1 to Statement of Mr Sandon.

 22   Attachment MNS-2.

 23   Further submissions of the Respondent at paragraph 14.

 24   Further submissions of the Respondent at paragraph 16.

 25   Statement of Mr Sandon, at paragraph 12.

 26   Statement of Mr Sandon, at paragraph 23.

 27   Transcript dated 23 March 2015 at PN1282.

 28   Transcript dated 23 March 2015 at PN1304 and following.

 29   Transcript dated 23 March 2015 at PN1324, PN1337

 30   Transcript dated 23 March 2015 at PN1325.

 31   Transcript dated 23 March 2015 at PN1448.

 32   Transcript dated 23 March 2015 at PN1457-PN1458.

 33   Attachment A to Mr Harrington’s statement.

 34   Attachment M to Mr Harrington’s statement.

 35   Transcript dated 23 March 2015 at PN1408.

 36   Attachment JTC-1 to Statement of Mr Cotter.

 37   Mr Miller made a similar point about Mr Cotter’s role in final oral submissions: Transcript dated 26 March 2015 at PN1674.

 38   Statement of Mr Hennrie at paragraphs 4-6 and Attachment TDH-1.

 39   Transcript dated 23 March 2015 at PN993

 40   Transcript dated 23 March 2015 at PN1006, PN1072.

 41   Transcript dated 26 March 2015 at PN1643-PN1648.

 42   Further Submissions of the Respondent at paragraph 30.

 43   Transcript dated 26 March 2015 at PN1680.

 44   Further Final Submissions of the Respondent at paragraph 27.

 45 [1938] HCA 34; (1938) 60 CLR 336.

 46   see H.J. Heinz Company Australia Ltd v Green and another[2014] FWCFB 6031; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 at 339-450; Budd v Dampier Salt Limited [2007] AIRCFB 797

 47   see also oral evidence of Mr Sandon, Transcript dated 23 March 2015 at PN1287.

 48   Mr Harrington in his response to the show cause letter identifies them as McConnell Dowell workers.

 49   Miller v University of New South Wales (2003) 132 FCR 147 at paragraph 13; Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 50   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373 ; [1995] IRCA 333.

 51   Michael King v Freshmore (Vic) Pty Ltd - 2 Print S4213

 52   Edwards v Justice Guidice [1999] FCA 1836; Michael King v Freshmore (Vic) Pty Ltd M Print S4213.

 53   as to which see submissions of Mr Christodoulou in Transcript dated 26 March 2015 at PN1708 and following.

 54   [2011] FWAFB 3038

 55   Black v The Commonwealth of Australia (Department of Defence)[2011] FWA 293.

 56   [2011] FWA 1475 at paragraphs 94 to 96 and 123.

 57   IGA Distribution (Vic) Pty Ltd v Nguyen[2011] FWAFB 4070.

 58   [2007] AIRC 969 at paragraph 102.

 59   Ibid at paragraph 96.

 60   I make no finding as to whether the safety incident prompted the later additional requirements as invited to by Mr Christodoulou: it is not necessary to do so for this matter.

 61   Transcript dated 26 March 2015 at PN1555-PN1556.

 62   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 at paragraphs 70-73.

 63   Previsic v Australian Quarantine Inspection Services Print Q3730.

 64   see Previsic.

 65   Explanatory Memorandum, Fair Work Bill 2008 (Cth) at paragraph 1542;

 66   eg Transcript dated 23 March 2015 at PN469; PN713.

 67   Transcript dated 23 March 2015 at PN1012.

 68   Transcript dated 26 March 2015 at PN1584-PN1585

 69   Transcript dated 26 March 2015 at PN1703 per Mr Miller for Coates and PN1738 per Mr Christodoulou for Mr Harrington and Final Submissions for the Applicant dated 26 March 2015 at paragraphs 69-73.

 70   s.390(3)(a)

 71   eg he had found other satisfactory employment.

 72   Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; cited in Nguyen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354 ; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 18

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