Mr Chris Bell v Boom Logistics Limited

[2013] FWC 81

[2013] FWC 81

FAIR WORK COMMISSION

DECISION

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

Mr Chris Bell
v
Boom Logistics Limited
(U2012/1106)

Mr Tyson Mackay
v
Boom Logistics Limited

(U2012/1108)

COMMISSIONER BOOTH BRISBANE, 14 JANUARY 2013

Application for unfair dismissal - arbitration.

[1] Mr Chris Bell and Mr Tyson Mackay (the Applicants)each brought an application for unfair dismissal remedies pursuant to the Fair Work Act 2009 (the Act) against Boom Logistics Limited (Boom). The dismissals arose out of largely the same facts and relied largely upon the same evidence. Each Applicant seeks orders that the termination of their employment was harsh, unjust and unreasonable, that they be reinstated in their former positions and awarded compensation for lost remuneration.

[2] The applications were heard by Fair Work Australia (the Tribunal) together by consent of the parties.

[3] The Applicants were represented by their union, the Construction, Forestry, Mining & Energy Union – Mining and Energy Division (CFMEU) through Mr Newman, the CFMEU’s Legal Officer. The company was represented by Mr Swain and Mr Mitchell, both employed by Boom.

[4] Evidence was taken by way of statement and orally from:

• both Applicants;

• Lee Gavin Alcock, employee of Boom, called by the Applicants;

• Glenn Andrew Wright, General Manager of Boom, called by Boom;

• Justin Rogers, employee of Boom, called by the Applicants;

• Christopher Zuniga, employee of Boom, called by Boom;

• Jennifer Schmidbauer, Mr Zuniga’s fiancée, called by Boom;

• Joseph Mark Kosecki, Central Queensland Regional Manager, Boom, called by Boom.

Background to dismissal

[5] Both Applicants worked at Boom’s Moranbah site and were dismissed on 3 May 2012. There are three separate ‘events’ the company says resulted in the dismissal of the Applicants. 1

Mr Bell

[6] Mr Bell was employed as a crane operator on a full-time basis. He was employed first by Brambles in September 2002. That company was bought by Boom and Mr Bell continued as a crane driver thereafter. He was, at the time of his dismissal and for some 6 years beforehand, president of the Boom Moranbah CFMEU lodge. He also recently became the workplace health and safety representative.

Mr Mackay

[7] Mr Mackay was engaged as a trainee dogman in May 2011, and held that position at the date of his dismissal. Since his termination, with the assistance of the CFMEU, he has completed his practical examination and is now a qualified dogman.

[8] At the time of the incidents leading to the dismissal, he lived with his partner in the same house as Mr Zuniga, Mr Rogers and their partners.

Event 1 - Generalised allegations of serious workplace bullying

[9] In September 2011, Boom received a complaint of serious misconduct from an employee. The alleged conduct included assault, slashed tyres, urinating in other employees’ boots, discriminatory and derogatory names, jobs boards vandalised, underqualified employees, widespread drug use, cover-up of serious workplace health and safety incidents and employees being treated poorly or forced out of Boom because they were not in, or did not support, the CFMEU.

[10] Boom responded by conducting bullying and harassment training in November 2011, and commissioning in December 2011 an external consultant to investigate the allegations.

[11] Mr Wright’s statement describes Mr Bell as the key named respondent in the external investigation. Mr Bell was the subject of eight allegations detailed in a letter sent to him on 17 February 2012. Boom acknowledges that other individuals, including Mr Zuniga, were also subject of the investigation.

[12] The external investigator, in what was referred to in evidence as the Boardman report, 2 found that a lot of the alleged incidents did in fact occur, but could not identify who was responsible. The investigator found “a toxic work environment exists” that should not be allowed to continue.3 However, the investigator did find:

• based on the balance of probabilities, Mr Bell as lodge president was aware of the orchestrated refusal to work overtime and further that he encouraged this ongoing refusal;

• based on the balance of probabilities, Mr Bell did call another employee who was exercising a workplace right to not be in the union a “scab”;

• that while Mr Bell was under no obligation to make polite conversation, “This behaviour is part of a pattern of behaviour to exclude or isolate employees who are either not in the union or undertake activities that are considered to be contrary to the union's best interests”;⁴

• that Mr Bell was in ongoing dispute with other employees.

[13] I note that there is no one specific incident that can be directly blamed on Mr Bell. The external report found almost all the allegations about Mr Bell were not substantiated, other than those detailed above.

[14] Mr Boardman none-the-less recommended that Boom consider transferring Mr Bell to another site or negotiating termination of his employment with Boom. 5

[15] Mr Bell completely denied the findings of the report in his submissions. He repeated his denials in evidence to this Tribunal.

[16] After receiving the Boardman Report, Boom took steps to address the “toxic work environment” including a number of toolbox meetings, and an agreement with the CFMEU representative, Mr Pierce, that there would be a “line in the sand”.

[17] A “line in the sand” toolbox meeting took place at Moranbah on 19 April 2012, and Mr Wright wrote to all staff at the Moranbah and Dysart Depots of Boom on 24 April 2012 on the subject of “expected behaviours”, warning that:

“Any employee found to be engaging in unacceptable behaviour will be subject to serious disciplinary action up to and including termination of employment.”

Event 2 – 23 April 2012

[18] Mr Chris Zuniga states from when he arrived in July 2011 in Moranbah he was subject to bullying. He asserts this was because he worked with Eric Lawton, who was initially a close friend of Mr Bell, but who fell out with Mr Bell and others and had complained to Boom managers about Mr Bell.

[19] Mr Zuniga had also been named in the external investigation. He says in his statement that after the investigation, employees were told among other things “I had a right to make a complaint.”

[20] On 19 April 2012 at the conclusion of the toolbox meeting Mr Zuniga spoke privately to management making allegations against other employees.

[21] On 23 April 2012, he says that at about 6 am Mr Bell, Mr Mackay and Mr Alcock were at the back of Boom’s Moranbah Yard where bench seats are located. He was looking at his phone when Mr Bell stopped in front of him. Mr Bell did not say anything but he turned around and Mr Zuniga looked up. Mr Zuniga says that:

“He had his hand on his bum cheek, pulled his cheeks apart and farted in my face. I did not respond. Mr Bell then walked away and sat down and all the boys were laughing.”

[22] Mr Zuniga says that there followed offensive and racist abuse. He was unhappy about this incident and claims he made a note of it on his phone. The note, unfortunately for Mr Zuniga was deleted, it seems by accident. However prior to the deletion he showed it to his fiancée, who made a statement to that effect.

[23] Mr Bell completely denies that this event ever occurred. Other employees who were there on the day were unable to recall such an incident or denied it happened.

Event 3 – early morning, 26 April 2012

[24] This event occurred in the house that Mr Zuniga shared with Mr Mackay and Mr Alcock and their partners.

[25] Mr Zuniga states that, after a football match on Anzac Day, 25 April 2012, at about 1:30 am the next morning, Mr Bell took and cooked food in the communal kitchen of the shared house. The food belonged to Mr Zuniga and his fiancée. He says that Mr Bell left the kitchen in a mess after being asked to leave by Mr Zuniga’s fiancée.

[26] Mr Zuniga said in his statement he was extremely angry and had enough of Mr Bell's “blatant ignorance”.

[27] Mr Bell's response is that he did not know whose food it was, and that he was in the house at the invitation of other residents.

[28] Mr Zuniga said in the months leading up to this particular event he had found his time-books and job dockets defaced with abusive comments and drawings. Copies of these were put into evidence. The content is racially abusive and sexually explicit. It is clearly offensive.

[29] Mr Zuniga also referred to an incident where the others in the house reported to police what they referred to as stolen Boom’s property, apparently inferring that the property had been stolen by Mr Zuniga. No charges were laid around this incident but it is indicative of the bad blood among employees.

[30] On 29 April 2012 Mr Zuniga wrote to Mr Kosecki a letter of complaint detailing the:

“bullying and abuse that I have been dealing which has come from Christopher Bell and Zeb Dewson.” 6

Mr Bell and Mr Mackay are dismissed

[31] Mr Bell’s employment was terminated on 3 May 2012. The notice of termination dated that same day cites the following reasons:

“As discussed during the meeting held today with Joe Kosecki, Graeme Pope and Steve Pierce present, your conduct in:

• Bullying, and aggressively abusing, another employee in racially offensive terms (on Monday 23 April 2012) in the yard &

• Harassing and intimidating another employee (and his girlfriend) in Boom-supplied housing, whilst in the company of others, as well as behaving in a completely inappropriate fashion in that employee’s house and kitchen including being involved in the removal, waste and/or destruction of that employee’s food without permission, at around 1AM on Thursday 26 April 2012;

is completely unacceptable, in clear breach of the matters discussed at the Toolbox meeting held on 19 April 2012, and the Memo issued to all employees on 24 April 2012, and is inconsistent with the continuation of your employment.”

[32] Mr Mackay’s employment was also terminated on 3 May 2012, the notice of termination citing the following reasons:

“As discussed during the meeting held today with Joe Kosecki, Graeme Pope and Ross Sammut 7 present; your conduct in:

• Failing to disclose to the company (and/or actively encouraging) the bullying and aggressive abuse of an employee by another employee in racially offensive terms (on Monday 23 April 2012) in the yard; &

• Harassing and intimidating another employee (and his girlfriend) in Boom-supplied housing, whilst in the company of others, as well as behaving in a completely inappropriate fashion in that house and kitchen including being involved in the removal, waste and/or destruction of that employee’s food without permission, at around 1AM on Thursday 26 April 2012;

is completely unacceptable, in clear breach of the matters discussed at the Toolbox meeting held on 19 April 2012, and the Memo issued to all employees on 24 April 2012, and is inconsistent with the continuation of your employment.”

[33] Mr Kosecki’s evidence is that he met separately with Mr Bell and Mr Mackay at about 6 am and 7.30 am respectively in company of the people named in the notices of termination. At the meetings, the conduct alleged to give rise to the termination (which comprise Events 2 and 3 above) were discussed and responses invited from Mr Bell and Mr Mackay. Each was allowed a brief break of 5 or 10 minutes before responding. On resumption in each case, Mr Kosecki says in his statement that he advised the employees that their employment was terminated for serious misconduct and presented each with the notice of termination.

The issues

[34] In submissions the applicants assert that the dismissal was unfair because:

(1) there is no valid reason for the dismissal related to the person's capacity or conduct;

(2) the Applicants were not properly notified of that reason;

(3) the Applicants were not given an opportunity to genuinely respond to the decision to terminate their employment;

(4) the size of the employer should have resulted in procedures in place and followed them and that the employer had access to professional advice on human resource issues; and

(5) in the event the Tribunal decided there was a valid reason, the terminations were harsh due to different treatment for similar offences and the severity of the alleged conduct compared to the severity of punishment.

Legislation

[35] By virtue of s.385 of the Act, a person has been unfairly dismissed if the Tribunal is satisfied that:

“(a) the person has been dismissed;

(b) the dismissal was harsh, unjust or unreasonable ...”

[36] In deciding whether a dismissal was harsh, unjust or unreasonable, the Tribunal must take into account matters set out in s.387 of the Act as follows:

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 the dismissal; and

e) if the dismissal related to unsatisfactory performance – 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 FWA considers relevant.

[37] After considering the factors in s.387 and weighing the evidence and material in relation to them, the Tribunal is required to decide on balance, whether a dismissal was unfair because it was harsh, unjust or unreasonable. The question of whether an employer had a valid reason for the dismissal of an employee including its effect on the safety and welfare of other employees, is one of the factors required to be considered. It is not however determinative.

[38] A valid reason for dismissal is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.” 8 The reason for a dismissal must also be defensible or justifiable on an objective analysis of the relevant facts9, and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.10

[39] Whether there is a valid reason for a dismissal is only one of the factors required to be considered when the Tribunal is deciding whether a dismissal is unfair because it is harsh, unjust or unreasonable. A dismissal may be:

• harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;

• unjust, because the employee was not guilty of the misconduct on which the employer acted;

• unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer.¹¹

[40] In deciding whether a particular dismissal was harsh, unjust or unreasonable, it may be that where the employer demonstrates that the employee engaged in serious misconduct, procedural deficiencies will be outweighed so that on balance, the dismissal is not unfair. An employee who engages in an act of misconduct may also be found to have been unfairly dismissed because the misconduct was not sufficiently serious to justify dismissal or to outweigh deficiencies in procedural fairness or because of other extenuating circumstances particular to the dismissed employee.

The evidence

Event 2 – 23 April 2012

[41] There is conflicting evidence as to the events alleged to have taken place in Moranbah yard on 23 April 2012. Mr Zuniga attempted to bolster his version of the events by asserting that he made a contemporaneous note on his mobile phone. He says that he showed the note to his fiancée that evening, but that it was later accidently erased. Mr Zuniga stated that he was having issues with his phone:

“How did that get deleted?---I don't know. I was having issues with my phone.

Having issues? What sort of issues?---I went to go sync it, and I think it - I went to go sync it on my missus' computer and it wiped the phone and put everything - all her stuff on my phone.

So when was this?---I can't remember. After.

How long after?---A day or two after. 12”

[42] Mr Zuniga’s fiancée agrees that she was shown the note on that evening, but gave a conflicting version as to how and when the data on the phone was erased.

“You go on to say that that phone was deleted when syncing his iPhone?---Yes.

Do you know how specifically that happened?---Yes, I do know. Chris wanted to add some music to his iPhone through his sister's MacBook. She's young and doesn't quite know how to use a computer obviously, and that's how she deleted it, she must have said, "Do you want to delete the files off this iPhone because it's not attached" - his iPhone is not attached to her computer, it's normally attached to my computer.

So it was erased when he attempted to - - -?---Yes, because it wiped out his whole phone.

- - - sync with his sister's computer?---Yes, that is correct.

Do you know when that occurred?---It was when we had moved - we were back in Brisbane and Chris had just come back from one of his stints at Olympic Dam, and I cannot give you a specific date. I would say maybe six weeks ago.

Six weeks ago?---Six or seven weeks ago.

So up until six weeks ago there was a note in relation to the events that occurred on 23 April?---That is correct.” 13

[43] There is a clear difference of recollection of the same event in this evidence. Mr Zuniga recalls the note being deleted from his fiancée’s computer. She recalls the data being deleted via his sister’s computer. The dates are significant. Mr Zuniga recalls the deletion of the note in April 2012. Ms Schmidbauer’s evidence says it was 6 to 7 weeks before the hearing, sometime around September 2012.

[44] The other evidence about this event is unsatisfactory. Mr Zuniga’s statements and oral evidence assert the event happened. Messrs Bell, Rogers and Alcock deny the event took place or do not recall it. Under cross-examination, Mr Zuniga asserts collusion:

“Now, I put to you that just simply didn't occur?---Yes, it occurred.

Mr Bell, Mr Mackay [sic - Rogers] and Mr Alcock have all given evidence on cross-examination that this didn't occur?---Well, they all obviously talked to each other and they're all going to back each other's story up.” 14

[45] As Mr Newman said in his oral submissions, there is no evidence before the Tribunal that collusion took place. 15

[46] The corroborative value of the note on the mobile phone is diminished greatly by the clear differences in the account of the note’s deletion.

[47] The event as alleged by Mr Zuniga would be a serious breach of Boom’s expectations of conduct, especially after the “line in the sand” meeting. It would possibly attract dismissal, being as assault accompanied by harassment and racial slurs. The seriousness of the consequences must be taken into account in determining whether the requisite standard of proof – the balance of probabilities – is discharged. 16 The assertion of the event by Mr Zuniga and the flat denials by the Applicant Mr Bell and his witnesses means the evidence cannot meet this standard.

[48] The Tribunal cannot rely on the contemporaneous note given the divergent views as to its deletion, and the light of the denial by the Applicants and their witnesses, it is unsafe to rely on any the allegations made by Mr Zuniga as evidence in relation to this event.

Event 3 – 26 August 2012

[49] The Applicants admit that some of the events alleged did take place in the early hours of 26 April 2012. They admit to drinking in the back yard of the house, and at about 1 am going to the kitchen and cooking food. Mr Bell says he was unaware whose food it was. Mr Mackay appears to have known it was Mr Zuniga’s food and apologised and offered compensation the next day.

[50] The Applicants assert that the alleged events of the early morning after Anzac Day took place outside work and cannot be taken into account.

[51] However, as Ross VP noted in Rose v Telstra:

“It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited:

• the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or

• the conduct damages the employer's interests; or

• the conduct is incompatible with the employee's duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.” 17

[52] No doubt the conduct alleged was inappropriate, especially in light of the generalised allegations. Even assuming that Mr Zuniga and his fiancée were deeply affected and offended by the conduct, I cannot conclude that it bears the character described in Rose v Telstra for the following reasons.

• Mr Mackay is entitled to invite guests to his home, notwithstanding it is a Boom supplied residence and notwithstanding the conflict between Mr Zuniga and Mr Bell arising from the alleged farting incident just 2 days beforehand.

• The conduct that night was not inconsistent with people who have been drinking for most of the day and who admit they were inebriated, even if it was most unwelcome.

• However, it is not conduct that viewed objectively, is likely to cause serious damage to the relationships of employer and employee. Nor did it damage the employer’s interests.

• Such after-hours behaviour, not at the workplace and as an invited guest in a private dwelling is not relevant to an employee’s duty as an employee, even if it damaged relationships among the employees concerned.

Trust and confidence issues

[53] Boom opposed reinstatement if the dismissals are found unfair. In essence they argue that trust and confidence between the employer and employees has been lost.

(a) Mr Bell

[54] Mr Bell has previously been the subject of disciplinary action by Boom, including:

• a “first and final warning” issued on 15 March 2007 for bullying and insubordination (retracted by Boom management “in the best spirit of improving our working relationship” on 13 May 2007);

• a “final warning” issued on 22 April 2009 relating to claiming on time sheets more hours than actually worked; and

• counselling relating to use of a mobile telephone while operating a vehicle (formal letter dated 4 May 2010).

[55] No doubt anticipating that his disciplinary history, and in particular the time sheet matter would be raised, Mr Bell says in his statement:

“I have previously been subject to minor disciplinary issues during my employment with Boom. About three years ago, someone put in a timesheet when I wasn’t present at work. I found out who the person was didn’t want to dob them in, so I coped [sic] a written warning for 12 months.” 18

[56] Mr Bell’s recollection of the warnings and other disciplinary action under cross-examination was poor.

“The last thing I want to ask you about, Mr Bell, is in your time at Boom Logistics, you did have a few complaints and warnings about your conduct, didn't you?

---From who are they?

Well, throughout the period of your employment with Boom, there were some warnings against your behaviour including for harassment and intimidation of other employees?---There were investigations, but there were never any warnings about it, no.” 19

[57] He later explains his prevarication about his disciplinary history:

“That's a pretty clear statement in that warning, "Please note that any future occurrence of this behaviour will likely result in the termination of your employment. A copy of this letter will be kept in your file for a period of 12 months, will meet to review your ongoing performance." So it's not true to say you didn't get any warnings, is it?---No. No, you're right. I didn't really remember that one. I thought they were taken off files, as it says in here, after 12 months.

Right. It says it will be, "Kept on your file for a period of 12 months," but the fact that it was issued and you were told, certainly misuse of time sheets is a pretty serious matter, isn't it?---I've actually outlined that in my statement that that happened.” 20

[58] Mr Swain in cross-examining Mr Bell put to him unflattering characterisation by Boom managers, including:

“He goes on to say in paragraph 24 he found you to be "abrupt, confronting, loud and argumentative". Do you see that?---I do see that, yes.

"Not the type of person who wants to work with a company to resolve issues." Mr Wright also says you only ever wants things to go in your favour. He goes on to say, "I can understand how some people could find Mr Bell to be intimidating." Do you see that there?---Yes.

And he gives a specific example where he was doing a tour of Central Queensland with the chief operating officer of the company: "I recall Mr Bell attacking both of us around an EBA that was being negotiated at the time. This was done in front of everyone at the meeting, both internal and external staff." Do you remember that occasion?---Asking them about why the agreement was taking so long to get answers back. I guess if that's attacking, yes, I do remember that.

…

This is Mr Wright speaking: "In my experience of Mr Bell I found him to be an arrogant and very aggressive person. Mr Bell was clearly implicated in the investigation report to a large degree and, as the Boom Lodge president, was a leader of the people in the yard. From feedback received from local management around meetings and EBA negotiations, he has no respect for the management." That's what he's saying there. What would you say to that?---I'd say that's one person's opinion.

…

Can you please have a look at Mr Kosecki's statement which is behind the pink tab. It's the second-last document in that folder; the witness statement of Joe Kosecki. Paragraph 4 of Joe Kosecki's statement, down the bottom of the page, Joe Kosecki says, "From the time I commenced with Boom as Central Queensland regional manager I found the Moranbah work environment a militant and difficult workplace. This was particularly evident during the negotiation of the crane operators and riggers enterprise agreement that went for approximately 14 months, including late December 2011. During that time I found the key employee representative, Chris Bell, to be openly contemptuous of Boom's bargaining representatives and on occasions abusive towards the company's management." That's what Mr Kosecki thinks, and Mr Wright wasn't at those meetings?---That's right.

Joe Kosecki was. So for them to form those opinions of you, it must have been as a result of the way you conduct yourself in the workplace. Don't you agree? Why else would they be saying that?---I believe because I stand up for what I believe when I'm negotiating.” 21

(b) Mr Mackay

[59] Mr Mackay was, at the time of his termination, relatively young and inexperienced. He was a trainee dogman. He was not subject to any disciplinary issues before the incidents that led to his dismissal. There was some commentary in oral evidence that his recruitment may have been as much about his footballing ability as his potential as a dogman. I place no importance on this other than to note that it is consistent with observations in the Boardman report. It is hardly surprising that a trainee dogman is inexperienced.

[60] I formed an impression from Mr Mackay’s evidence, both written and oral, that he lacked independence and maturity. It could be that this lack of independence and maturity meant that he was easily led into error and poor conduct. As I note however, any evidence about misconduct on Mr Mackay’s part is unsafe to accept or at best tenuous.

The toxic environment

[61] There is little doubt based on the evidence put to the Tribunal that the interpersonal relations both among workers in the yard at Moranbah, and between workers and Boom’s management was at times robust and unacceptable. 22 The evidence includes written evidence of racial and sexual abuse in strong language, incidents that were or could have been assaults, and damage to property.

[62] The evidence before the Tribunal cannot sustain a conclusion that Mr Bell engaged personally in abusive, verificatory or harassing conduct (as found by Mr Boardman, on the balance of probabilities to have been engaged in by Mr Bell). But is seems clear that such conduct did take place, and probably took place repeatedly over a sustained period of time.

[63] Finally, it is clear from the statements made by Boom that after the Boardman report it was determined to manage the Moranbah site better and to deal with the “toxic” environment. The investment in training, changes in policy, alerts to staff about proper conduct and the like indicate an understanding by Boom that conduct had to change, and that it was determined to bring about those changes. However, the poor work climate does not relieve Boom of its statutory obligations in regard to unfair dismissal, nor justify termination of employees who are merely suspected of misconduct or of somehow sponsoring the toxicity.

[64] Mr Bell denies having any role in the “toxic” environment, or that he was in some way leading other employees astray or encouraging undesirable conduct.

Procedural issues

[65] The procedure adopted by Boom in terminating the employment of Messrs Bell and Mackay was clearly defective.

Conclusion re terminations

[66] Taking into account the factors stated in s.387, as the Tribunal must, 23 and giving them due weight,24 the termination of the employment of both employees cannot be other than unfair. I address each of the statutory factors in turn.

(a) Valid reason

[67] A reason for termination must be valid in the sense it is “sound, defensible or well founded” and not “capricious, fanciful or prejudiced” 25 and must be objectively valid.26 In the present case, the terminations were said by Boom to relate to the Applicants’ conduct. There is no issue as to their capacity. It is incumbent on the Tribunal to ascertain that, on the basis of the evidence, the alleged conduct in fact occurred.27

[68] A finding that the conduct occurred does not necessarily result in validity: “The issue is not whether the conduct in question amounted to serious misconduct at common law but whether it gave rise to a valid reason for termination of employment.” 28 Further, a reason might be valid because the conduct was found to have occurred and to justify termination, but invalid because either the conduct did not occur or because it occurred but did not justify termination.29

[69] In this case, I have found that the conduct alleged in Event 2 is not safe to accept on the evidence before the Tribunal. Mr Bell’s employment could not therefore be terminated solely on the basis of that alleged conduct, even if the conduct would have been serious enough to result in termination. It follows that Mr Mackay’s failure to report the alleged conduct cannot be found as termination for misconduct. Further, Mr Mackay’s failure to report may have been a serious matter to Boom, especially in light of its earnest attempts to improve the “toxic work environment”. However to terminate Mr Mackay’s employment for not reporting misconduct, especially in light of his evidence that he was not witness to the alleged incident would, in my view, be marginal and disproportionate. 30

[70] In terms of the events at the house on 26 April 2012, for reasons discussed above, they do not in my view constitute valid reason to terminate either Applicants’ employment. 31

[71] Having concluded that it is unsafe to accept the evidence in relation to the event of 23 April 2012 and that the events of 26 April 2012 do not constitute a valid reason, I cannot conclude that the was a valid reason for the dismissal relating to the Applicants’ conduct.

(b) Notice

[72] The statutory obligation as to notice has been held to mean that notice must be given before the decision to terminate has been made:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified.” 32

[73] Here, on Boom’s evidence, the termination was effected by way of calling the Applicants to separate meetings, stating the proposed reason, allowing a short break, and then presenting each with a notice of termination. It seems unquestionable that, as the CFMEU asserts in its submissions, the Applicants were not properly notified. Further, the inference is clearly open that the decision to terminate employment was made before the meeting was convened, as evidenced by the pre-prepared notices of termination being presented at the meeting. The process was far from transparent and open. 33

(c) Opportunity to respond

[74] While Mr Kosecki allowed a short break in the meeting for the Applicants to consider the alleged conduct, it cannot be said that this afforded a meaningful opportunity to respond to the alleged conduct, nor that the time was adequate before the decision to terminate was made. 34

(d) Support person

[75] The Tribunal is satisfied that both Applicants were allowed, and availed themselves of the opportunity, to have a support person of their choice present at their meeting. I note a mild suggestion by Mr Newman that somehow Mr Sammut was not Mr Mackay’s support person of choice, as appears to have been in issue in Dewson. 35 However Mr Mackay in his oral evidence appeared satisfied with Mr Sammut as his support person.36

(e) Warnings about unsatisfactory conduct

[76] Boom clearly issued ample warnings that it would not tolerate misconduct of the type alleged in Event 2. That included the external review and follow up meeting held by Boom, the training programs, posting of notices and the toolbox meetings, including the “line in the sand” meeting at Moranbah. Further, the warnings, including the memorandum of 24 April 2012 are sufficiently clear, in my view, that the Applicants’ employment was at risk. 37

[77] Of course, the memorandum of 24 April 2012 cannot be taken into account in regard to the alleged incident of 23 April 2012.

(f) Company’s size and its procedures; and

(g) Human resource management specialists or expertise

[78] Boom is a relatively large, publicly listed corporation with over 40 depots and more than 1200 staff Australia-wide. 38 Its senior management includes a General Manager, Human Resources39 and Mr Mitchell, Boom’s East Coast Human Resources Manager was actively involved in, for example, the toolbox meetings. A company of this size and complexity should have clear and robust procedures for termination of employment. In this case, the procedures were either not adequate or were not adequately followed.

(h) Other relevant matters

[79] Matters arising under this provision are “at large, subject to relevance in the context of the circumstances of a particular matter”. 40

[80] Considerable emphasis was placed by Boom of the “toxic work environment” issue. By implication, although not put to the Tribunal is such blunt terms, the efforts by Boom to address that environment might include terminating the employment of individuals who were contributing to the toxic, and therefore unsafe, work environment. I consider that addressing the poor work environment is an important objective for Boom. To the extent these terminations were part of addressing those problems, I find the work environment issues are relevant to considering whether the termination was harsh unjust or unreasonable.

[81] Further, the disciplinary history of the Applicants seems to be relevant in the circumstances of a company trying hard to address systemic misconduct. A history of misconduct seems to me to be relevant in determining whether a particular incident is a valid reason for termination.

[82] However, given my earlier findings, Mr Bell’s history cannot overcome the other problems with Boom’s decision to terminate his employment on 3 May 2012.

[83] It follows that the terminations of both Mr Bell and Mr Mackay was not able to be supported on the evidence before the Tribunal. The incident of 23 April 2012 is not adequately proven, and to terminate on that basis would be unreasonable. The incident of 26 April 2012 is, in my view, not sufficiently serious on its own to justify termination for the reasons given above.

[84] I therefore find that Mr Bell and Mr Mackay were unfairly dismissed.

Reinstatement and compensation

[85] Having concluded that the dismissals of both Mr Bell and Mr Mackay were unfair, I turn to the question of whether their reinstatement is inappropriate, and if so, whether compensation should be awarded. If reinstatement is appropriate, issues of continuity of employment 41 and for restoration of lost pay42 arise.

[86] It is also open to the Tribunal to find that no remedy is appropriate in the circumstances. 43

[87] The Act provides as follows:

390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:

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

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

[88] The object stated in s.381 of the Act places emphasis on reinstatement for an unfairly dismissed employee, but the Act provides for two possible remedies, reinstatement and compensation. The latter is available only if reinstatement is “inappropriate” and compensation is appropriate: s.390(3). 44

[89] While the Act does not explicitly so provide, it is clear from the statutory scheme, including the use of the term “inappropriate”, that an order for reinstatement is a discretionary decision of the Tribunal. 45 The nature of discretionary decision-making, and the duty of the Tribunal in making a discretionary decision, were discussed in Coal and Allied v AIRC by Gleeson CJ and Gaudron and Hayne JJ:

"Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.” 46

[90] In Perkins v Grace Worldwide (Australia) Pty Limited 47 the employer failed to prove adequately the alleged misconduct (gratuitous supply of marijuana cigarettes). Indeed, one of the witnesses reversed his position and testified that that the applicant had not offered the marijuana to him. Moore J held the applicant’s dismissal unlawful but declined to order reinstatement under the now-repealed Workplace Relations Act 1996, under which the test was of “impracticality”.

[91] The Full Court set aside the decision and ordered reinstatement:

“… we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question… Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. 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.” 48

[92] On the question of appropriateness, the Court said:

“We considered whether there was anything in the circumstances of the case that made it inappropriate for us to order reinstatement. We did not think there was. In deciding to order reinstatement, we appreciated that it will be necessary for Mr Pepper and MrPerkins to display some magnanimity towards each other at the recommencement of their working relationship, but there is nothing in the evidence that suggests either man is incapable of doing this.”

[93] The factors relevant to reinstatement pursuant to s.391 are not enumerated in the Act.

[94] Factors commonly considered in reinstatement decisions include:

• whether there had been a loss of trust and confidence between the employer and employee;⁴⁹

• impact on the employee of reinstatement not being ordered;⁵⁰

• the nature of the employment;⁵¹

• the availability of alternate employment at a different site.⁵²

Remedy

[95] Given the circumstances of each Applicant are different, it is appropriate to consider the appropriate remedies separately.

(a) Mr Bell

[96] Boom (and its predecessor) has a relatively long employment relationship with Mr Bell. He commenced work for Brambles in 2002, and remained in employment after Boom purchased the business in 2007. Through that time he has been a crane driver, and risen to prominence industrially as President of the CFMEU Boom Logistics lodge at Moranbah and as workplace health and safety representative.

[97] This last point took some importance in Mr Newman’s oral submissions, suggesting, by way of example, that the evidence of Boom’s managers was:

“patently untrue and is used as a red herring and more feeble attempt to deny reinstatement of Mr Bell because of his effectiveness as a union president. The simple fact is Mr Bell was an effective union delegate and Boom did not like it.” 53

[98] Boom’s submissions resisting reinstatement appear to be based on several factors other than the two events that led to the termination notice;

• a history of friction with the Boom’s management;

• Mr Bell’s disciplinary history; and

• the findings in Mr Boardman’s report.

[99] To ascertain whether Boom has lost trust and confidence in Mr Bell such that reinstatement is inappropriate, the Tribunal 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 Tribunal.

[100] The findings by Mr Boardman that the work environment is “toxic” is clearly a major consideration for Boom. The evidence shows that Boom is taking this issue seriously, as indeed it must. The Applicants suggest that the report was somehow flawed, or Mr Boardman unqualified. However there was no evidence to support that assertion. It follows that Boom formed its view about trust and confidence in Mr Bell in light of the Boardman Report, his disciplinary history, and their clearly expressed views about his poor relations with Boom management.

[101] Boom’s managers had genuinely, in my view, lost confidence and trust in Mr Bell as an employee of Boom, and genuinely considered Mr Bell to be aggressive and difficult and potentially a harmful presence in the workplace.

[102] Further, the evidence simply does not support the assertion by Mr Bell that the Boom’s negative views are convenient in removing him because of his role as a Union delegate.

[103] I place little weight on the disciplinary history. Two of the incidents were serious enough to attract a “final warning”, but one of those was retracted. The timesheet incident was the subject of oral written evidence from Mr Bell. That evidence was rather unsatisfactory and self-serving. However I do take into account that Mr Bell showed no comprehension in his evidence that such an incident, whether it is cheating on the time sheet or covering up another employee’s misdeed, is now totally unacceptable to Boom.

[104] Generally, Mr Bell expressed no willingness to change his behaviour or to deal effectively with the managers who had expressed grave concern about his presence in the workplace. He merely disagreed with any proposition that reinstatement would be difficult or that his conduct had been, or would in the future be, an issue.

[105] On balance I have formed a view there is insufficient trust to make the relationship viable, particularly in the light of the aims about changing the culture that Boom seeks to create. For Boom not to take the steps to improve its culture around bullying and racism exposes it to significant legal claims and an unproductive workplace. The proven circumstances of this workplace have been extreme, to the extent it was labelled “toxic”. Therefore the attitude taken by Boom based on the evidence from Mr Bell, from Boom, and in the Boardman Report is rational. The lack of trust is well founded on the basis of the evidence detailed above.

[106] I acknowledge that Mr Bell has strong ties to Moranbah and has expressed, in his statement, a desire to return to his old job. His concern, a perfectly valid one, is that his old job was better remunerated and more secure than other jobs he has held since his dismissal.

[107] It is difficult to speculate about what the future might have held for this employment relationship if Mr Bell had not been dismissed on 3 May 2012. However it appears tolerably within contemplation that Boom would have taken steps to negotiate with Mr Bell his departure from Boom, or transfer to another depot, as recommended by Mr Boardman. It seems reasonable to conclude that his tenure after 3 May 2012 may not have been lengthy.

[108] I find on balance that Mr Bell’s reinstatement would be inappropriate.

[109] I arrive at this conclusion for the reasons because Boom has genuinely lost trust and confidence in Mr Bell and has done so on a rational basis.

Compensation

[110] I propose to order that Mr Bell be paid compensation in lieu of reinstatement. S.392(2) provides for the determination of the amount of such compensation as follows:

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

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

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

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

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

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

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

(g) any other matter that FWA considers relevant.

[111] There is insufficient information before the Tribunal on the matters listed above. Directions to the parties to provide submissions on the question of payment of compensation to Mr Bell will be issued separately should the parties not be able to come to agreement otherwise.

(b) Mr Mackay

[112] Mr Mackay left Boom as a trainee dogman. He was young. However, he did show some remorse for his conduct at the house, and by offering to reimburse his housemate for the food. He indicated in his oral evidence an understanding that reinstatement would be “difficult”, but that he would “move on with his life”. He showed some signs of the magnanimity that will be necessary on both sides for the relationship to be productive and viable.

[113] Despite Boom’s views that Mr Mackay should not be reinstated, I do not find that this view is supported by the evidence to the standard suggested by Perkins. This is more a circumstance that is “difficult or embarrassing” rather than a loss of trust and confidence making the employment relationship impracticable.

[114] I note that another employee, Mr Alcock, was disciplined in relation to the same two incidents by way of warning. Such a clear difference of approach supports a conclusion that a warning rather than termination may have been an appropriate disciplinary action in these circumstances.

[115] Mr Mackay had no prior disciplinary warnings on his file. He was not the subject of a complaint in the Boardman report and in fact was not even an employee for the period that it covered.

[116] For these reasons, and on balance Mr Mackay’s reinstatement is not inappropriate and I order his reinstatement.

[117] Mr Mackay seeks reinstatement not to his former position as trainee, but as a qualified dogman. There are obvious difficulties with this proposition. I therefore will make the order in general terms as prescribed by s.391(1)(b).

[118] It is not possible to ascertain on the basis of submissions before the Tribunal what the appropriate treatment of continuity and compensation for lost wages should be, especially given that Mr Mackay left Boom’s employment on 3 May 2012 as a trainee but is now a qualified dogman. Accordingly, I invite the parties to make submissions on the question of continuity and compensation if they cannot otherwise come to agreement. Separate directions will issue accordingly.

COMMISSIONER

Appearances:

Mr C Newman for Construction, Forestry, Mining and Energy Union

Mr W Swain for Boom Logistics

Hearing details:

2012.

Mackay:

November 12, 13, 14 and 15.

 1   The Applicants drew the Tribunal’s attention to a third dismissal, that of Mr Zeb Dewson, also arising out of similar facts. That matter has been determined by Cambridge C, who found the dismissal to be unfair but reinstatement not ordered: Dewson v Boom Logistics Ltd[2012] FWA 9027

 2   Exhibit R6 at Attachment GW5.

 3   Exhibit R6 at Attachment GW5 - Boardman Report dated March 2012 page 42 at line 1352.

4 Exhibit R6 at Attachment GW5 - Boardman Report page 19 at line 521; 524 to 527.

 5   Exhibit R6 at Attachment GW6 - Supplementary report dated 2 April 2012.

 6   Exhibit R9 at Attachment JK E (2) to Mr Kosecki’s statement.

 7   Mr Mackay’s support person, another Boom employee.

 8   Selvachandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 9   Rode v Burwood Mitsubishi Print R4471 at paragraph 90 per Ross VP, Polites SDP, Foggo C.

 10   as opposed to legal entitlements to terminate by notice: Miller v University of New South Wales [2003] FCAFC 180 at paragraph 13 per Gray J.

11 Stewart v University of Melbourne Print S2535 per Ross VP citing Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465-468 per McHugh and Gummow JJ.

 12   Transcript dated 14/11/12 at PN2233 to PN2236.

 13   Transcript dated 14/11/12 at PN2446 to PN2452.

 14   Transcript dated 14/11/12 at PN2215 to PN2216.

 15   Transcript dated 15/11/12 at PN2983.

 16   Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; see also Budd v Dampier Salt Limited [2007] AIRCFB 797.

 17   Rose v Telstra Corporation Limited Print Q9292; [1998] AIRC 1592.

 18   Exhibit A1 at paragraph 7.

 19   Transcript dated 13/11/12 at PN777 to PN778.

 20   Transcript dated 13/11/12 at PN796 and PN797

 21   Transcript dated 12/11/12 at PN 203 to PN205; PN210 and PN215 to PN216.

 22   e.g., see Transcript dated 12/11/12 at PN368.

 23   see Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at paragraphs 14 and 20.

 24   eg R v Hunt; ex parte Sean Investments Pty Ltd [1979] HCA 32; Chubb Security Australia Pty Ltd v John Thomas Print S2679

 25   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 731 at 373 per Northrop J.

 26   Rode v Burwood Mitsubishi Print R4471 per Ross VP, Polites SDP and Foggo C.

 27   King v Freshmore (Vic) Pty Ltd Print S4213; Edwards v Justice Giudice and others [1999] FCA 1836.

 28   Potter v Workcover Corporation Print PR948009 at paragraph 53 per Ross VP, Williams SDP and Foggo C.

 29   Edwards, above, at paragraph 7.

 30   see comprehensive discussion of breaches of policy in Woolworths Limited (t/as Safeway) v Cameron Brown Print PR963023, [2005] AIRC 830 at paragraphs 23 to 41.

 31   see Edwards above.

 32   P Crozier v Palazzo Corporation Pty Ltd S5897 per Ross VP, Acton SDP and Cribb C at paragraph 73.

 33   see generally A Clarke and L Abicare v Formfile Infosoft Pty Ltd Print PR931288.

 34   Crozier above.

 35   Transcript dated 15/11/12 at PN2980.

 36   Transcript dated 13/11/12 at PN1304.

 37   Fastidia Pty Ltd v Goodwin Print S9280 – re performance

 38       A Kehagias and J Woodier and V Pham and D Baglava and A Topsahalidis v Unilever Australia Limited (trading as Unifoods) - Print Q0498; [1998] AIRC 2 per Watson SDP, Williams SDP and Larkin C.

 41 s.391(2) of the Fair Work Act 2009.

 42 s.391(3) and (4) of the Fair Work Act 2009.

 43   Vdoukakis v DJ Cussan Pty Limited Print PR949780 decided under the repealed Workplace Relations Act 1996.

 44   see also Holcim (Australia) Pty Ltd v Serafini[2011] FWAFB 7794.

 45   see e.g., comments by Marshall, Cowdroy and Buchanan JJ in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 at paragraph 62 (overturned on other grounds in Coal and Allied v AIRC [2000] HCA 47); EDI Rail Pty Ltd v GJ Rowley [2008] AIRCFB 64 per Acton SDP, Richards SDP and Williams C at paragraph 28; Selak v Woolworths Ltd [2008] AIRCFB 81 per Watson VP, Cartwright SDP and Foggo C at paragraph 9ff commented on in Kolodjashnij v J Boag and Son Brewing Pty Ltd[2010] FWAFB 3258; Mehdi v Rail Corporation of New South Wales [2007] AIRCFB 428.

 46 [2000] HCA 47 at paragraph 19.

 47 [1996] IRCA 529

 48   Perkins v Grace Worldwide (Aust) Pty Ltd [1997] IRCA 15 per Wilcox CJ, Marshall & North JJ.

49 Perkins supra; see also, eg, Swain v Ramsey Food Packaging Pty Ltd Print S4919; IGA Distribution (Vic) Pty Ltd v Nguyen[2011] FWAFB 4070; Commonwealth of Australia (Department of Defence) v Black[2011] FWAFB 3038.

50 Australian Meat Holdings v McLauchlan Print Q1625; (1998) 84 IR 1

51 eg, Qantas Airways Ltd v Christie [1998] HCA 18; 193 CLR 280; contrast Ambulance Victoria v Ms V[2012] FWAFB 1616.

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

 53   Transcript dated 15/11/12 at PN2978.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR532907>