Mr Rick Kehoe v Waco Kwikform Limited - [2025] FWC 2551

[2025] FWC 2551

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Rick Kehoe
v

Waco Kwikform Limited

(U2025/3744)

COMMISSIONER RIORDAN

SYDNEY, 22 OCTOBER 2025

Application for an unfair dismissal remedy

On 27 March 2025, Mr Rick Kehoe (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (Cth) (the FW Act). The Applicant was employed by Waco Kwikform Limited (the Respondent) from September 2017 until the date of his dismissal on 6 March 2025. The Applicant’s dismissal was on the grounds of serious misconduct involving a breach of safety.

In its Form F3 – Employer Response, the Respondent raised a jurisdictional objection that the Applicant’s employment did not meet the minimum employment period, on the basis that the Applicant was an ‘ad hoc casual employee’. However, in correspondence to the Commission dated 2 June 2025, the Respondent advised that it no longer pressed its jurisdictional objection.

This decision determines the substantive unfair dismissal application.

Background

The Applicant is a 47-year-old Scaffolder.

The Applicant commenced employment with the Respondent on or about 18 September 2017 in the position of Site Supervisor on a full-time permanent basis. However, at the Applicant’s own election due to his caring responsibilities, the Applicant converted to casual employment with the Respondent in late 2021, and started working as a casual Leading Hand.

The Applicant’s employment with the Respondent was covered by the Waco Kwikform Limited / CFMEU Collective Agreement 2024-2027 (the Agreement).

In both his role as a Supervisor and a Leading Hand, the Applicant was responsible for overseeing the work of other scaffolders.

The Respondent supplies scaffold products and associated labour to various construction projects, including industrial, commercial and residential construction.

From about February 2023, the Applicant commenced working at the site of the John Hunter Hospital upgrade in Newcastle, NSW (the Project) and remained working on the Project until the termination of his employment on 6 March 2025. The Respondent’s customer on the Project is Multiplex.

On 3 March 2025, the Respondent observed the Applicant working in an unsafe manner on the Project.

Meetings were conducted between Mr Tim Schiaffi, Branch Manager, Newcastle, Mr Martin Delore, Construction Supervisor, and the Applicant on 4 and 6 March 2025 in relation to the Applicant’s alleged safety breach.

The Applicant was dismissed by the Respondent with immediate effect at the conclusion of the 6 March meeting on the grounds of serious misconduct.

A Hearing was conducted by Video via Microsoft Teams on Thursday, 21 August 2025. At the Hearing, the Applicant was represented by Ms Ruby Bouwsema of the Construction, Forestry and Maritime Union (CFMEU). The Respondent was granted leave pursuant to s.596 of the FW Act to be represented by Mr Jason Donnelly of National Workplace Lawyers.

The Applicant gave evidence on his own behalf at the Hearing.

The following persons gave evidence for the Respondent:

· Mr Timothy Schiaffi, Branch Manager, Newcastle; and

· Mr Martin Delore, Construction Supervisor.

Statutory Provisions

The relevant sections of the FW Act relating to an unfair dismissal application are:

“396 Initial matters to be considered before merits  
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:  
(a) whether the application was made within the period required in subsection 394(2);  
(b) whether the person was protected from unfair dismissal;  
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;  
(d) whether the dismissal was a case of genuine redundancy.  
 

381 Object of this Part  
(1) The object of this Part is:  
(a) to establish a framework for dealing with unfair dismissal that balances:  
(i) the needs of business (including small business); and  
(ii) the needs of employees; and  
(b) to establish procedures for dealing with unfair dismissal that:  
(i) are quick, flexible and informal; and  
(ii) address the needs of employers and employees; and  
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.  

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.  
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.  
382 When a person is protected from unfair dismissal  
A person is protected from unfair dismissal at a time if, at that time:  
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and  
(b) one or more of the following apply:  
(i) a modern award covers the person;  
(ii) an enterprise agreement applies to the person in relation to the employment;  
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold. 

384 Period of employment  
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.  
(2) However:  
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:  
(i) the employment as a casual employee was on a regular and systematic basis; and  
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and  
(b) if:  
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and  
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and  
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer.  

 
385 What is an unfair dismissal  
A person has been unfairly dismissed if the FWC is satisfied that:  
(a) the person has been dismissed; and  
(b) the dismissal was harsh, unjust or unreasonable; and  
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and  
(d) the dismissal was not a case of genuine redundancy.  

see section 388.  
387 Criteria for considering harshness etc.  
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:  
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and  
(b) whether the person was notified of that reason; and  
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and  
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and  
(e) if the dismissal related to unsatisfactory performance by the person— whether the person had been warned about that unsatisfactory performance before the dismissal; and  
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and  
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and  
(h) any other matters that the FWC considers relevant.”

Applicant’s Submissions

The Applicant submitted that his dismissal was unfair, and that the Commission should order that he be reinstated with back pay and continuity of service.

Background

The Applicant acknowledged that on 3 March 2025, he was involved in a safety breach by failing to construct a catch deck at 0.5 metres from the ground while working at a height of 2.5 metres.

The Applicant submitted that clause 30 of the Agreement deals with counselling and disciplinary procedures and prescribes that the procedures set out in Appendix E were adopted by the Respondent and agreed to by its workforce. The Applicant submitted that clause 1 of Appendix E of the Agreement provides that the procedure set out in the clause applies to employees from the conclusion of their probationary period. Therefore, the procedure applied to the Applicant.

For completeness, Appendix E of the Agreement states:

“APPENDIX E

Counselling and Disciplinary Procedures/Termination of Employment
1. Counselling and Disciplinary Procedures
a) This procedure applies in respect of Employees at the conclusion of their probationary period. Upon commencement of employment an Employee will be advised of the following procedure. The procedure will apply in all cases where formal counselling and disciplinary action is necessary.
2. Performance / General Misconduct
a) In the event that an Employee fails to maintain satisfactory performance levels in the case of general misconduct (e.g., lateness for work), the following counselling procedure will be applied. An Employee may elect at any step to have a Union delegate or Union Organiser present. All counselling will occur at a location where building work does not occur. Each Employee has the right to determine whether they wish to be represented by a Union delegate, another representative of their choosing or not at all.
Step 1 – Verbal Warning / Counselling
a) The Company shall have a discussion with the Employee in which it will advise him / her of the problems that it believes exist. The Employee will then have the opportunity to respond to the allegations. If appropriate the Company will then:
(i)Remind the Employee of the procedures;
(ii)Issue a verbal first warning;
(iii)Advise the Employee of the standards of improvement required

Step 2 – First Written Warning / Improved Performance
a) If the Employee fails to meet the standards of improvement in accordance with Step 1 within a reasonable period of time, the Company shall have a further discussion with the Employee in which it will advise him / her of the problems that it believes exist. The Employee will then have the opportunity to respond to the allegations. If appropriate the Company will then issue a written warning detailing:

(i)The issues of concern;
(ii)The standards of improvement required

b) At the request of the Employee, copies of any written warnings will be given to the Company Union delegate/representative or Union Organiser.

Step 3 – Final Written Warning / Improved Performance
a) If the Employee fails to meet the standards of improvement in accordance with Step 2 within a reasonable period of time, the Company shall have a further discussion with the Employee in which it will advise him / her of the problems that it believes exist. The Employee will then have the opportunity to respond to the allegations. If appropriate the Company will then issue a final written warning detailing:

(i)The issues of concern;
(ii)The standards of improvement required;
(iii)That it is a final written warning and that failure to meet the standards of improvement stated therein will lead to dismissal

b) The relevant Employee being counselled will be requested to sign a copy of the written warnings referred to in Step 2 and Step 3 of this clause.
Revocation of Warning
a) If an Employee does not repeat the same offence which produced the need for the final warning, within 3 months of the warning, then all warnings becomes null and void and cannot be considered grounds for termination.
Step 4 – Dismissal
a) If after receiving a final warning, the Employee repeats the same conduct within a period of 3 months, then the Employee may be terminated.
b) If the Employee fails to meet agreed standards of improvement in accordance with Step 3 within a reasonable period of time, the Company shall have a further discussion with the Employee in which it will advise him / her of the problems that it believes exist. The Employee will have the opportunity to respond to the allegations. This will occur where building work is not performed. If appropriate the Company may then issue a written notice of dismissal in accordance with this Agreement detailing the reasons for the dismissal

3. Serious and Wilful Misconduct
a) In the case of serious and wilful misconduct (e.g. theft, assault), the following procedure will be followed:

(i)The Company shall have a discussion with the Employee in which it will advise him / her of the alleged serious and wilful misconduct.
(ii)The Employee shall be entitled to have a Union delegate/representative or Union Organiser in attendance and will have the opportunity to respond to the allegation.
(iii)If appropriate the Company may then issue a written notice of dismissal detailing the reasons for the dismissal.

4. Commitment to Follow Procedure
a) The Company agrees that this procedure will be adhered to prior to termination of employment.”

The Applicant submitted that clause 2 of Appendix E deals with “general misconduct” and mandates a counselling procedure with a series of graduated disciplinary steps. The Applicant submitted that clause 2, read alongside clause 4, of Appendix E prescribes various steps that must be taken prior to the Respondent lawfully terminating an employee. Those steps commence with a verbal warning and counselling. This escalates in the second instance to a written warning, followed by a final warning. The Applicant submitted that an employee can only be dismissed where the employee repeats the same misconduct within 3 months.

The Applicant acknowledged that the procedure under clause 2 does not apply in the case of “serious and wilful misconduct”, as set out by clause 3 of Appendix E.

The Applicant submitted it is clear on the evidence that the procedure mandated by clause 2 of Appendix E was not followed by the Respondent in effecting his dismissal. Therefore, the Applicant submitted that the Respondent could only lawfully terminate his employment if it can prove that he engaged in “serious and wilful misconduct” for the purposes of clause 3 of Appendix E.

The Applicant submitted that the phrase “serious and wilful misconduct” in clause 3 of Appendix E must be understood in light of the ordinary meaning of the words used, read as a whole and in context.[1] The Applicant submitted that the ordinary meaning of “serious” is “not slight or negligible”.[2] The Applicant submitted that the ordinary meaning of “wilful” is “intentional, deliberate”,[3] and “misconduct” refers to “improper or unprofessional behaviour”.[4] Therefore, the Applicant submitted that the phrase “serious and wilful misconduct” has an ordinary meaning of deliberate, intentional behaviour which is not negligible or slight, that can be characterised as improper or unprofessional behaviour.

(My emphasis)

The Applicant submitted that “serious and wilful misconduct” is contrasted with “general misconduct” per clause 2 of Appendix E. The Applicant submitted that “serious and wilful misconduct” is conduct far more egregious than what the Agreement considers as “general misconduct”, and is misconduct engaged in deliberately and consciously.

The Applicant submitted that the type of conduct that meets the definition of “serious misconduct” is a question of fact.[5]

The Applicant cited the decision of Von Doussa J in Sutcliffe v General Motors-Holden's Automotive Ltd,[6] which provides that:

“The question whether an employee has been guilty of serious and wilful misconduct requires an examination not only of his actions but also of his mental processes relative to them. The misconduct must be conduct so seriously in breach of the contract of employment that by standards of fairness and justice the employer should not be bound to continue the employment. The conduct must also have the quality that it is “wilful”, that is it must amount to a deliberate flouting of the essential contractual conditions…”

(My emphasis)

The Applicant submitted that a dismissal which is contrary to the procedure under Appendix E of the Agreement, amounting to a breach of s.50 of the FW Act (‘Contravening an enterprise agreement’) by the Respondent, could not constitute a valid reason for dismissal as such a dismissal would be unlawful. Further, the Applicant submitted that a dismissal contrary to Appendix E is a matter that can be taken into account by the Commission under s 387(h).[7]

Unfair dismissal

The Applicant submitted that in order to determine whether or not his dismissal was harsh, unjust or unreasonable, the Commission is required to take into account the factors set out in s.387 of the FW Act. The Applicant submitted that the Commission must consider these factors in totality, weighing up all the factors with no single factor being decisive.[8]

Valid reason – section 387(a)

The Applicant submitted that a valid reason must be “sound, defensible and well founded”.[9]

The Applicant submitted that where a termination is based on alleged misconduct, the Commission must determine:

(a)whether the misconduct occurred and what it involved; and

(b)whether the conduct justified the termination.[10]

The Applicant submitted that the onus is on the Respondent to prove the existence of a valid reason for the dismissal.[11]

The Applicant submitted that whilst there was no written communication from the Respondent regarding the reasons for the investigation and subsequent termination, the Respondent’s alleged reason was stated in the two meetings held on 4 March 2025 and 6 March 2025 respectively. The Applicant submitted that in these two meetings, to the best of his recollections, the Respondent did not state in plain or clear terms that the alleged conduct amounted to “serious and wilful misconduct”. The Applicant did not dispute the safety breach that occurred on 3 March 2025, “for which he has and continues to express contrition and remorse”. However, the Applicant denied that the Respondent provided fulsome justification that the safety breach amounted to “serious and wilful misconduct” warranting dismissal rather than a verbal warning in the first instance. Further, the Applicant denied that he was dismissed by the Respondent for the safety breach as stated by the Respondent in the meeting of 6 March 2025.

Safety breach

The Applicant submitted that on 3 March 2025, he was erecting scaffolding on the John Hunter Hospital site for the Respondent, above a section of a building over a road closure. Traffic controllers were present in the area to redirect foot traffic and vehicles to ensure the area was cordoned off for the scaffolding team to perform their work. The Applicant submitted that there were four traffic controllers present, all of whom had radios to communicate with each other. The Applicant submitted that the traffic controllers did not have a similar point of communication with the scaffolders, other than calling out to them. The Applicant submitted that in his capacity as Leading Hand, he directed the scaffolding team to work on the overhead protection above while he begun to erect the scaffolding from the ground up.

The Applicant submitted that at approximately 9:00am, he was working at a height of 2.5 metres, atop two steel boards, with additional parallel boards below him, and he had erected a handrail. The Applicant submitted that he observed a white car driving on the road below the scaffolding. The traffic controllers working below had not communicated with the Applicant that a car was approaching.

At approximately 9:34am, the Applicant received a phone call from Mr Martin Delore,

Supervisor for the Respondent. The Applicant submitted that Mr Delore told him words to the effect that he had been “caught in a compromising position” but did not elaborate further.

The Applicant submitted that from approximately 9:36am to 10:30am, he continued to work until his break. The Applicant submitted that, prior to going on his break, he exited the scaffolding box and removed the loose scaffolding boards on the deck to prevent anyone from accessing the scaffolding.

The Applicant submitted that he returned to work at approximately 11:30am. He submitted that he received a text from his partner at 11:57am stating that she had been taken to the hospital. The Applicant submitted that he informed the Leading Hand, Mr Matty Whitlam, that he was leaving work to meet his partner at the hospital. The Applicant sent a text message to Mr Delore to inform him he was leaving to meet his partner at the hospital.

The Applicant submitted that at 12:54pm, he received a phone call from Mr Schiaffi, who informed the Applicant that he would be required to attend an investigation meeting.

The Applicant submitted that he remained at the hospital with his partner until approximately 11:00pm, when he went home. He returned to the hospital the next morning, 4 March 2025, around 7:00am, to be with his partner.

The Applicant submitted that on 4 March 2025 at approximately 2:00pm, he attended a meeting with the Respondent. In the meeting, Mr Schiaffi informed the Applicant that he would be stood down while the Respondent investigated the Applicant for an alleged breach of the Respondent’s Safe Work Method Statement (SWMS). The Applicant submitted that he said words to the effect that while he considered his actions to be “safe enough for [him]”, he admitted to a breach by failing to erect a catch deck at 0.5 metres from the ground and apologised. The Applicant submitted that in this meeting, Mr Schiaffi became increasingly agitated and repeatedly accused the Applicant of being apathetic to the situation by stating words to the effect that the Applicant did not “give a fuck”.

(My emphasis)

The Applicant submitted that on 6 March 2025 at approximately 11:00am, he attended a further meeting with the Respondent. The Applicant submitted that during the meeting, Mr Schiaffi again appeared irate towards him, slamming his hands on the table after the Applicant provided his view. The Applicant submitted that Mr Schiaffi again stated words to the effect of “you don’t give a fuck”. Mr Schiaffi advised the Applicant that his employment with the Respondent was terminated.

The Applicant cited the decision in Perri v Anglo Italian[2013] FWC 10 (Perri), in which the Commission distinguished between the true reason for dismissal and the stated reason. In Perri, the employer, Anglo Italian, alleged that the dismissed employee’s attitude and behaviour in the disciplinary meeting “were such to destroy any belief about his commitment to workplace health and safety”, leading to his dismissal. The employer alleged that Mr Perri had “smirked” and was contemptuous in the disciplinary meeting. However, the Applicant submitted that in that matter, the Commission determined that Anglo Italian’s view and their subsequent decision to terminate Mr Perri was made “in haste”, and that Mr Perri did not intend to give the impression that was alleged by the employer.

The Applicant submitted that, at no point throughout the period of 3 March 2025 to 6 March 2025 did the Respondent allege that the Applicant’s safety breach of 3 March 2025 amounted to “serious and wilful misconduct”. However, the Applicant submitted that the Respondent has made several ensuing allegations regarding their perceptions of the Applicant’s demeanour in its employer’s response in relation to the events of 3 March 2025 to 6 March 2025:

“a. The respondent alleges that Mr Delore informed the applicant for the reason for his phone call on 3 March 2025, and that the applicant became “aggressive” in response.

b. The respondent alleges that the applicant was “defensive and [arrogant]” during the meeting of 4 March 2025.
c. The respondent alleges that the applicant sought to “blame others” and was “doubling down”.”

In relation to the above, the Applicant submitted that these perceptions by the Respondent were a misreading of his intent and demeanour between the period of 3 March 2025 and 6 March 2025. The Applicant noted that he had recently spent a stressful and lengthy period of time with his partner in hospital, was exhausted when the allegations which were first put to him in the meeting of 4 March 2025, and then once again on 6 March 2025.

The Applicant also submitted, given that previous safety breaches by other employees had not lead to their dismissals, and that the safety breach by the Applicant on 3 March 2025 was the Applicant’s first breach, it was unclear whether the Respondent initially planned to terminate his employment for the safety breach of 3 March 2025, or whether alternative disciplinary measures were considered. The Applicant submitted that, in his view, the true reason for his dismissal “lies in the “arrogant” attitude attributed to him by the [R]espondent, as opposed to the one which was supplied to him on 6 March 2025”.

The Applicant submitted that the Respondent bears the onus of establishing that his conduct of 3 March 2025 amounted to “serious and wilful misconduct”. However, the Applicant submitted that, presently, there is no evidence of this.

The Applicant submitted that there was no valid reason for his dismissal, taking into account the following:

·   previous safety incidents by other employees of the respondents did not lead to dismissal;
·   the safety breach by the applicant on 3 March 2025 was his first and a one-off error of judgement;
·   the applicant held a lengthy and good record of service with the respondent; and
·   the applicant was not informed that he was being investigated for serious and wilful misconduct.

Further, the Applicant submitted that none of the matters relied on by the Respondent can constitute “serious and wilful misconduct” for the purposes of clause 3 of Appendix E of the Agreement. Therefore, the Applicant submitted that he could not lawfully have been dismissed by the Respondent.

The Applicant submitted that the grounds relied upon by the Respondent are not sound, defensible and well founded and as such, there was no valid reason to terminate his employment.

Notification of reason – s 387(b)

The Applicant acknowledged that he was advised at the meeting of 6 March 2025 that he was being dismissed for the safety breach of 3 March 2025.

The Applicant submitted that this should be treated as a neutral factor.

Opportunity to respond – s 387(c)

The Applicant submitted that he attended a meeting with the Respondent on 4 March 2025 regarding the safety breach of 3 March 2025. On 6 March 2025, the Applicant attended a further meeting with the Respondent and was invited to show cause for the safety breach of 3 March 2025.

The Applicant submitted that, while there are tangible concerns regarding the procedural fairness afforded to him in the circumstances, specifically because he was not provided with a copy of the allegations including particulars in writing, nor was he notified that his conduct amounted to “serious and wilful misconduct”, this should be treated as a neutral factor.

Support person – s 387(d)

The Applicant submitted that he was informed of the meeting on 6 March 2025, and while the Respondent did not invite him to have a support person present at the meeting, he did arrange for a support person to attend.

The Applicant submitted that this should be treated as a neutral factor.

Other factors – s 387(h)

The Applicant submitted that the following matters, individually or in combination, demonstrate that even if there was a valid reason for his dismissal, his dismissal was harsh:

“a. there was a disparity in treatment as between the applicant and other employees of the respondent for safety breaches;

b. the action of dismissal was, in all the circumstances, disproportionate to the conduct engaged in by the applicant on 3 March 2025;
c. the dismissal was carried out unlawfully and in contravention of Appendix E of the Agreement;
d. the impact of the dismissal has been severe for the applicant. His personal and family circumstances, and limited current job opportunities are in favour of a finding of harshness;
e. apart from the incident relied on by the respondent, the applicant had a good employment record and was a loyal and hardworking employee.”

Remedy – Reinstatement

The Applicant has sought an order for reinstatement to his role with the Respondent.

The Applicant cited the Full Bench decision in Nguyen v Vietnamese Community in Australia[2014] FWCFB 7198, which set out the following principles in relation to whether reinstatement should be ordered:

“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

·Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
·Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
·An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
·The reluctance of an employer to shift from a view, despite a tribunal's assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
·The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”

The Applicant submitted that reinstatement is appropriate in the present case. The Applicant submitted that the following factors weigh in favour of this conclusion:

“a. the applicant was a loyal employee with a good record of service amounting to over 7 years;

b. the respondent is a large employer and able to accommodate the applicant’s reinstatement;
c. there can be no sensible suggestion that the relationship of trust and confidence between the applicant and the respondent has broken down to the point that the employment relationship cannot be re-established.”

The Applicant submitted that the Commission should order reinstatement, with continuity of employment and restoration of lost pay.

The Applicant submitted that if the Commission determines that reinstatement is not an appropriate remedy, he seeks compensation up to the statutory maximum.

Respondent’s Submissions

The Respondent submitted that the Commission cannot be satisfied, having regard to all of the matters it is required to consider under s.387, that the dismissal of the Applicant was harsh, unjust or unreasonable.

Recent Safety Incidents

The Respondent submitted that, tragically, there have been three fatalities on the Project. The first two fatalities occurred as a consequence of two workers each dying of a heart attack on the site. The third fatality occurred in July 2023, when a 20-year-old plumber died as a consequence of a formwork cage falling on him at the site.

The Respondent submitted that on 20 November 2024, one of the Company’s scaffolders was seriously injured on the John Holland/Gamuda joint venture M1 project in NSW (November 2024 Safety Incident). The Respondent submitted that on this occasion, the worker fell off a scaffold from a height of about 4 metres due to a void created by missing boards on the platform he was working off. The worker fell to the ground as a consequence of failing to have a catch deck in place. The Respondent submitted that, due to his injuries, the worker has not returned to work since the date of the incident.

Further, the Respondent submitted that on 20 February 2025, a scaffolder employed by the Company, Mr Igor Turkin, was working on a scaffold at a height of about 2.5 metres on the Project, when a representative from Multiplex witnessed Mr Turkin working on the scaffold without edge protection. The Respondent submitted that this put Mr Turkin at risk of a fall between the internal edge of the scaffold and the building (February 2025 Safety Incident).

Critical Safety Requirement – the 1 Metre Catch Deck Rule

The Respondent submitted that its safety requirements mandate that a scaffolder must have a full platform of decking with no missing boards (the Catch Deck) not more than 1 metre below the height at which they are working at any given time (the 1M Catch Deck Rule). The Respondent submitted that the purpose of the 1M Catch Deck Rule is to ensure that a scaffolder does not work at a height of more than 1 metre intervals on the scaffold without a full platform below them to provide fall protection.

The Respondent submitted that the serious injuries suffered by the employee involved in the November 2024 Safety Incident occurred as a result of the employee failing to comply with the 1M Catch Deck Rule.

The Respondent submitted that as recently as 21 February 2025, a toolbox meeting occurred at the Project during which the Company emphasised the need for employees to comply with the Company’s safety requirements “without exception”. The Respondent submitted that the documented record of the toolbox meeting makes reference to the 1M Catch Deck Rule.[12] The Respondent submitted that the Applicant was in attendance at the toolbox meeting of 21 February 2025.

The Respondent submitted that at this toolbox meeting, it also issued a SWMS that referred to the 1M Catch Deck Rule. The Respondent submitted that the Applicant signed the SWMS, confirming his agreement to comply with it.[13]

The events of 3 March 2025

The Respondent submitted that on 3 March 2025, the Applicant was undertaking scaffold work on a section of the Project known as the linkway. Between 9.30 AM and 10.30 AM on 3 March 2025, Mr Schiaffi was driving an injured worker to the Hospital and observed the Applicant working from a height of about 2.5m on scaffold on the Project “in an unsafe manner and contrary to the Company’s safety processes”. The Respondent submitted that Mr Schiaffi observed the Applicant balancing on the scaffold, standing with one foot on a transom and his other foot on a ledger, with one arm wrapped around the standard and working on the external side of the scaffold.[14]

The Respondent submitted that the Applicant was working at a height of about 2.5m with no Catch Deck in place, which was a breach of the 1M Catch Deck Rule. The Respondent submitted that this put the Applicant at a serious and imminent risk of injury or death if he were to fall, because he had no fall protection and would have impacted with concrete at ground level. The Respondent submitted that in light of his 7.5 years working for the Company, and his positions as Supervisor and Leading Hand, the Applicant was aware of the need to have a Catch Deck in place. Further, the Applicant had been reminded of this requirement at the 21 February 2025 toolbox meeting.

The Respondent submitted that “[i]t is remarkable that the Applicant failed to comply with the 1M Catch Deck Rule when:

(a) it is such a critical and obvious safety requirement to have fall protection in place whilst working from height; and

(b) the 1M Catch Deck Rule was the subject of a toolbox meeting only 10 days before the 3 March 2025 incident.”

The Respondent submitted that the Applicant’s failure to comply with the 1M Catch Deck Rule was ‘wilful’ because the Applicant determined that, as an experienced scaffolder, he would decide what was, and was not, safe. The Respondent cited the Applicant’s Outline of Submissions, and the Applicant considering his actions were “safe enough for him”. The Respondent questioned how any scaffolder, “never mind one with the experience of the Applicant”, would consider it “safe enough” for anyone to work at height without adequate fall protection.

The Respondent submitted that upon seeing that the Applicant was working in an unsafe manner, Mr Schiaffi immediately contacted the Company’s Construction Supervisor, Mr Delore, and informed him to contact the Applicant about his breach of safety processes. The Respondent submitted that Mr Delore then contacted the Applicant and informed him that he had been observed to be working unsafely.

The Respondent submitted that later in the morning on 3 March 2025, the Applicant left the Project “allegedly to visit his wife in hospital”.

The events of 4 March 2025

The Respondent submitted that at about 2.00 PM on 4 March 2025, the Applicant attended a meeting with Mr Schiaffi and Mr Delore to discuss the safety breach that had occurred the previous day. The Respondent submitted that during this meeting, the Applicant was “defensive and arrogantly asserted that how he was working was safe”. In this regard, the Respondent submitted that:

“(a) it is the evidence of Mr Schiaffi that the Applicant stated words to the effect of “I am the scaffolder. I have been doing this for years. I know what I am doing. I know what is safe and unsafe. I made an assessment and deemed what I was doing to be safe.”;

(b) it is the Applicant’s own evidence that he stated words to the effect “I made an assessment…I thought it was safe for me”; and

(c) it is stated in the Applicant’s Outline of Submissions that the Applicant’s actions were “safe enough for him”.”

The Respondent submitted that, despite the Applicant ultimately admitting during the 4 March 2025 meeting that he had breached the Company’s SWMS by failing to have a Catch Deck in place, “the Applicant doubled down and refused to acknowledge any wrongdoing or that his actions were unsafe”. The Respondent submitted that at no time during this meeting did the Applicant show any remorse for his actions. The Respondent submitted that this is despite the evidence of Mr Schiaffi that he encouraged the Applicant to do so by stating words to the effect of: “Rick… I am wanting you to take responsibility and be contrite. Instead, you are being argumentative and aggressive.”[15]

The Respondent submitted that the Applicant’s conduct on 3 March 2025, coupled with his responses and attitude during the meeting on 4 March 2025, demonstrated to the Company that he did not take his safety breach seriously and was dismissive of the Company’s concerns. The Respondent submitted that this left an impression that the Applicant was a “cowboy” in relation to safety.

The events of 5 March 2025

The Respondent submitted that whilst the Applicant was stood down pending the Respondent’s further consideration of the matter, the Applicant attended the Project on 5 March 2025 of his own accord to collect his tools. The Respondent submitted that the Applicant spoke to a work colleague, Mr Corey Luyten, in an aggressive manner, blaming Mr Luyten for “dobbing [the Applicant] in”.

The events of 6 March 2025

The Respondent submitted that on 6 March 2025, the Applicant attended a further meeting with Mr Schiaffi and Mr Delore to discuss the safety breach that had occurred on 3 March 2025. The Applicant elected to have his Union delegate attend this meeting as his support person.

The Respondent submitted that at the commencement of the meeting, Mr Schiaffi informed the Applicant that, in light of what Mr Schiaffi had observed and the Applicant’s own admission, the Respondent had formally concluded that the Applicant had participated in a serious safety breach on 3 March 2025 and that his actions amounted to serious misconduct.

The Respondent submitted that “the Applicant continued to show no remorse, continued to deny any wrongdoing and persisted with his refusal to take any responsibility for his actions”. The Respondent submitted that the Applicant’s primary response to this finding was to repeatedly ask Mr Schiaffi why he was on the road at the Project on 3 March 2025.

The Respondent submitted that in light of the following:

“(a) the seriousness of the safety breach in question, being a breach of the 1M Catch Deck Rule, which constituted serious misconduct;

(b) the fact there had been a toolbox only about 10 days prior in relation to following the established safety processes;
(c) the high-risk nature of scaffolding work;
(d) the Applicant’s responsibility to set a safety example as a leading hand;
(e) the Applicant’s unwillingness to accept responsibility;
(f) the Applicant’s admission of the safety breach; and
(g) the Applicant “doubling down” and maintaining there was still no issue in the way he undertook his work on 3 March 2025,...”

the Company lost all trust and confidence in the Applicant’s willingness to undertake his work in a safe manner and accordingly terminated the Applicant’s employment with immediate effect at the conclusion of the meeting on 6 March 2025.

Criteria for Harshness

Section 387(a) – Valid Reason

The Respondent cited the decision in Selvachandran v Peteron Plastics Pty Ltd,[16] in which the Industrial Relations Court of Australia considered the meaning of the expression ‘valid reason’. The Court held that:

“The adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason.”[17]

The Respondent submitted that there were valid reasons for the dismissal of the Applicant’s employment which were “sound, defensible or well founded”. The Respondent submitted that there is no proper basis upon which the Commission could reasonably conclude that the Company’s reasons for terminating the Applicant’s employment were in any way “capricious, fanciful, spiteful or prejudiced” or anything other than valid.

The Respondent submitted that it is well established that it is not the role of the Commission to stand in the shoes of the employer and determine what it would have done if it were in the position of the employer.[18] The Respondent submitted rather, the Commission’s role is to determine whether there was a valid reason for the dismissal related to the employee’s capacity or conduct.

The valid reasons for the Applicant’s dismissal

The Respondent referred to the events of 3 March 2025, as outlined above, and the Applicant’s breach of the 1M Catch Deck Rule. The Respondent submitted that, unlike many unfair dismissal matters, this is not a case where there is a factual dispute in relation to the Applicant breaching the Company’s safety requirements. The Applicant has admitted that he breached the Company’s SWMS.[19]

The Respondent submitted that a failure to comply with the SWMS is no trivial matter. The Respondent submitted that it has carefully developed its SWMS to comply with its legal obligations to eliminate, to the extent possible, risks to health and safety at work. The Respondent submitted that given the nature of the Company’s work, which involves working at height in the construction industry, there are significant risks to health and safety that could result in serious injury or even death if the established safety processes are not utilised to control those risks.

The Respondent cited the High Court decision in McLean v Tedman (McLean),[20] in which Mason, Wilson, Brennan and Dawson JJ stated:

“The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th ed. (1983), pp 480-481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.”

(My emphasis)

The Respondent also cited the decision in Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (Arnotts),[21] in which Logan J stated, after citing the above passage:

“[18] In addition to this common law duty Arnott’s was also subject to no less extensive statutory duties with respect to safety in the workplace. It is not necessary for the purposes of deciding this case to detail these.

[19] A corollary of the duties at common law and by virtue of statute in respect of provision, maintenance and enforcement of safety in the workplace is that an employer is entitled to give reasonable directions to employees directed to its fulfilment of that duty. In particular circumstances, a failure by an employee to comply with such a direction can, at common law, provide a basis for the summary dismissal of that employee...”[22]

(Respondent’s emphasis)

The Respondent submitted that, in light of all the circumstances surrounding the Applicant’s failure to comply with the SWMS, the Applicant’s employment was terminated on 6 March 2025 for the following reasons:

“(a) he committed a serious safety breach by working at height on 3 March 2025 without a Catch Deck in place to protect him in the event of a fall;

(b) he was aware of the Company’s safety requirements and deliberately failed to comply with them, instead working how he wanted to work on the day, rather than how he was required to work;
(c) he elected to work unsafely on 3 March 2025 despite the fact that only 10 days earlier, on 21 February 2025, he participated in a toolbox which covered the importance of employees working in accordance with the Company’s SWMS;
(d) he refused to take any responsibility for his failure to work in accordance with the Company’s safety requirements;
(e) he refused to acknowledge that he did anything wrong, even though he admitted to not following the Company’s SWMS, he refused to accept that he worked unsafely;
(f) he could not be trusted to work safely in the future or set a safety example for the employees he was responsible for as a leading hand.”

The Respondent maintained that it appropriately considered that the Applicant’s safety breach amounted to serious misconduct and informed the Applicant of this prior to terminating his employment.[23]

The Respondent submitted that the Applicant’s safety breach on 3 March 2025 was “irrefutably” conduct that caused serious and imminent risk to his health and safety. Further, the Respondent submitted that the Applicant’s misconduct was serious because he “wilfully breached the 1M Catch Deck Rule”. The Respondent submitted that at no stage has the Applicant claimed that his conduct was accidental or a mere oversight. Rather, the Applicant has stated that he “made an assessment” and considered his actions “safe enough for him”. Therefore, the Respondent submitted that the Applicant elected not to follow the SWMS and made the decision to “work how he wanted to”.

The Respondent acknowledged that, in cases involving a serious safety breach, the Commission may be prepared to afford some level of leniency to an offending employee, where the safety breach arises from a genuine mistake, misunderstanding of requirements, or an accidental or inadvertent act. However, the Respondent submitted that none of those features are present here to mitigate the seriousness of the Applicant’s safety breach.

For the above reasons, the Respondent submitted that the Commission should find that the Applicant was terminated for a valid reason, for having participated in serious misconduct.

The Applicant’s contentions in relation to serious misconduct and the EA in the context of a valid reason

In response to the Applicant’s submissions relating to clause 2 of Appendix E of the Agreement, the Respondent noted that the Applicant has accepted that clause 2 does not apply in cases of “serious and wilful misconduct”.

The Respondent maintained that the Applicant’s employment was terminated on the grounds of “serious and wilful misconduct”, such that clause 2 of Appendix E has no application.

However, the Respondent submitted that even if it were to be assumed that the Company breached Appendix E as asserted by the Applicant, that would be a matter relevant to the Commission’s consideration under s.387(h). The Respondent submitted that the Applicant’s contention that it is also a matter relevant to the existence of a valid reason demonstrates a misunderstanding of the task of the Commission in determining if there is a valid reason under s.387(a) of the Act.

The Respondent cited the decision in Sydney Trains v Gary Hilder,[24] in which a Full Bench of the Commission said the following in relation to the principles applicable to the consideration required under s. 387(a):

“[26] The principles applicable to the consideration required under s 387(a) are well established, but they require reiteration here:

(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.
(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.
(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).
(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).
(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee’s contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).
(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.
(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).
(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.
(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.”

(Respondent’s emphasis)

The Respondent submitted that, as the Full Bench identified above, the question of whether the employee’s conduct was serious misconduct within the terms of the contract of employment, or in this instance, the Agreement, is not relevant to the determination of a valid reason.

The Applicant’s contentions in relation to the ‘true’ reason for the dismissal

As to the Applicant’s claim that the ‘true’ reason for his termination “lies in the “arrogant” attitude attributed to him by the Company, as opposed to the one which was supplied to him on 6 March 2025”, the Respondent submitted that this is a desperate and fanciful assertion and should be rejected by the Commission. The Respondent reiterated that the reasons for the dismissal were, as outlined above, in relation to the Applicant’s safety breach on 3 March 2025.

The Respondent acknowledged that the Applicant’s attitude and demeanour were relevant factors that assisted in demonstrating the Applicant’s:

“(a) wilful disregard for complying with the Company’s required safety protocols;
(b) complete lack of remorse for his serious safety breach on 3 March 2025;
(c) unwillingness to accept responsibility for his safety breach; and
(d) unwillingness to even acknowledge that he did anything wrong or worked unsafely.”

The Respondent submitted that the Applicant’s attitude and demeanour also impacted the Respondent’s conclusion that it could not have trust and confidence that the Applicant would work safely in the future.

As to the Applicant’s reference to the decision in Perri, in which the Applicant submitted “the Commission distinguished between the true reason for dismissal and the stated

reason”, the Respondent submitted that the Commission made no such distinction in that case. The Respondent submitted that in Perri, the employee had participated in a safety breach. The employer determined it would provide the employee with a formal written warning letter in relation to the safety breach. The employer then met with the employee to inform him that he would be receiving a warning letter for the safety breach. During this meeting, the employee displayed a poor attitude and demeanour in response to being informed he would be provided with a written warning letter for the earlier safety breach. In response to Mr Perri’s poor attitude and demeanour at the meeting the employer made the decision to terminate Mr Perri’s employment, not for reason of the original safety breach, but rather, for reason that the employer considered Mr Perri’s poor attitude and demeanour in meeting to demonstrate that he was not committed to working safely.

The Respondent submitted that in that matter, following the meeting with Mr Perri, the employer issued a warning letter for the original safety breach and a separate termination letter that terminated Mr Perri’s employment, not for the original safety breach, but rather, because of his attitude and demeanour at the meeting. The Respondent submitted that this is why the decision records that Mr Perri was “provided with both a written warning letter and a letter confirming his termination”.

The Respondent submitted that the Commission in Perri ultimately found that Mr Perri’s conduct during the meeting was insufficient to genuinely indicate to the employer that he was not committed to safety as alleged by the employer. The Respondent clarified that the Commission did not distinguish between the “true” reason and the “stated reason” for termination in Perri. The Respondent submitted that the case had nothing to do with that notion. Rather, the Commission simply found that the conduct of Mr Perri at the meeting was insufficient to warrant the employer forming the view that Mr Perri was not committed to safety.

The Respondent distinguished the present matter from Perri, stating that, in the present case, the Applicant’s participation in the 3 March 2025 safety breach goes “hand in glove” with his verbal responses to the incident and his attitude and demeanour when responding to the Company’s enquiries about the incident. The Respondent submitted that the evidence before the Commission clearly reveals that it was the totality of the Applicant’s conduct on 3 March 2025 and his response to the Company’s enquiries into that conduct that resulted in the termination of his employment. Therefore, the Respondent submitted that the Applicant’s contention that his attitude and demeanour are divorced from the totality of the matter and formed the “true reason for his dismissal” is absurd.

Further, the Respondent noted that the task of the Commission is to determine whether there was a valid reason for the dismissal, which does not need to be the reason given to the employee at the time of the dismissal. Here, the Respondent cited the decision in Newton v Toll Transport Pty Ltd (Newton),[25] in which the Full Bench stated:

“[65] The Commission is bound to determine whether, on the evidence provided, facts existed at the time of termination that justified the dismissal. Contrary to the Appellant’s submission, in determining whether there was a valid reason for the dismissal the Commission is not confined to the reason advanced by the employer (either at the time of dismissal or during the course of the subsequent hearing). A valid reason for dismissal can be any valid reason underpinned by the evidence provided to the Commission.”

Section 387(b) – Whether the person was notified of that reason

The Respondent submitted that it put the Applicant on notice of the concerns it had in relation to his safety breach within minutes of the breach occurring on 3 March 2025. The Respondent submitted that it provided the Applicant with an opportunity to respond to those concerns at the meeting on 4 March 2025 and made the Applicant aware of the seriousness of the Respondent’s concerns.

The Respondent submitted that it provided the Applicant with a further opportunity to respond to its concerns at the meeting on 6 March 2025.

Section 387(c) – Whether the person was given an opportunity to respond

As outlined above, the Respondent submitted that the Applicant was provided an opportunity to respond to the reason for the dismissal in the meetings of 4 and 6 March 2025.

Section 387(d) – Support Person

The Respondent submitted that it informed the Applicant of his right to attend the 6 March 2025 meeting with a support person in advance of the meeting and facilitated the involvement of the Applicant’s Union delegate as his support person at that meeting.

Section 387(e) – Unsatisfactory Performance

The Respondent submitted that the dismissal did not relate to unsatisfactory performance.

Section 387(f) and (g) – Size of the Employer’s Enterprise/dedicated Human Resource specialists

The Respondent submitted that it is a large enterprise that employs dedicated human resource personnel.

The Respondent submitted that these should be considered neutral factors.

Section 387(h) – Any other matters

The Applicant’s contentions in relation to serious misconduct and the Agreement in the context of s.387(h)

The Respondent submitted that much of the content of the Applicant’s Outline of Submissions is dedicated to building a case that his termination breached clause 2 of the counselling and disciplinary procedure in Appendix E of the Agreement.

As noted above, the Respondent submitted that the Applicant accepted the procedure set out in clause 2 does not apply in cases of “serious and wilful misconduct”, however, contended that the Respondent’s reason for terminating the Applicant’s employment did not involve “serious and wilful misconduct” but rather involved “general misconduct” thereby triggering the application of the process detailed in clause 2.

The Respondent submitted that the Agreement provides examples of what it considers to be “general misconduct”: “lateness for work”; and “serious and wilful misconduct”: “theft, assault”. The Respondent submitted that the Applicant’s safety breach on 3 March 2025 is clearly more akin to the seriousness of a “theft” or “assault” than “lateness for work”. The Respondent submitted that, similar to a “theft” or “assault”, a safety breach poses a serious risk to the safety and well-being of employees and others at the workplace when compared to “lateness for work”.

The Respondent relied on its reasons already outlined and maintained that the Applicant’s safety breach involved “serious and wilful misconduct”. The Respondent submitted that “[t]o suggest that it was conduct on the same or similar level of seriousness as “lateness for work” is misguided.” Further, the Respondent submitted that the Applicant’s assertion that his safety breach was no more than “general misconduct” is consistent with the Respondent’s finding that the Applicant has refused to acknowledge the seriousness of his conduct or take responsibility for his actions.

The Respondent submitted that at paragraphs [33] and [37] of the Applicant’s Outline of Submissions, he has asserted that he was not informed that the matter involved serious misconduct. However, the Respondent relied here on Mr Schiaffi’s evidence that he informed the Applicant that his safety breach was considered serious misconduct at the commencement of the meeting on 6 March 2025.[26] The Respondent submitted that even if that exact phrase had not been used, it would have been obvious to the Applicant throughout the disciplinary process that the Company was treating the incident as involving serious misconduct, including for reasons that:

“(a) the Applicant was informed on the morning of 4 March 2025 that he would not be able to work on any sites until the Company’s investigation into the matter was complete;

(b) the Applicant was informed during the meeting on 4 March 2025 that his conduct involved a “serious safety risk”;
(c) the Applicant was informed during the meeting on 4 March 2025 that the Company was wanting him to “take responsibility and be contrite”;
(d) the Applicant was informed during the meeting on 4 March 2025 that Igor Turkin’s “employment was on a razor’s edge due to his safety breach” and that in contrast to the Applicant, Mr Turkin had “accepted full responsibility for his actions and was prepared to wear the consequences, whatever they were”;
(e) the Applicant was made aware at the meeting on 4 March 2025 that the Applicant’s safety breach involved him working at a height of 2.5m without a Catch Deck in place such that the Applicant would have realised, or ought reasonably to have realised given his experience as a scaffolder, that such a safety beach put him at risk of serious injury or death.”

The Respondent submitted that, in light of the above, the Applicant’s assertion that his safety breach did not constitute “serious and wilful misconduct” within the terms of the Agreement cannot be accepted. Further, the Respondent submitted that as the Applicant’s conduct involved “serious and wilful misconduct”, clause 2 of Appendix E has no application to the matter.

The Applicant’s lack of remorse or acceptance of accountability

The Respondent submitted that the Applicant’s lack of remorse or acceptance of accountability in the lead up to the termination of his employment is a relevant factor that the Commission can take into account in determining whether the dismissal was harsh, unjust or unreasonable.

The Respondent submitted that in his materials filed with the Commission, the Applicant has now made the following “belated concessions”:

“(a) he “regrets the mistake [he] made in breaching the expected safety standards”;
(b) he “take[s] full responsibility for [his actions]”;
(c) he is “committed to performing [his] role safely and in line with the Safe Work Method Statement”; and
(d) he “has and continues to express contrition and remorse”.”

The Respondent submitted that these “belated concessions” are a markedly different response to those the Applicant provided during the investigation process and are “all too little, too late”.

The Respondent submitted that, even on the Applicant’s own evidence before the Commission, it is obvious the Applicant was adamant he would not be showing contrition or accepting responsibility for his actions:

“(a) in the very first conversation he had with Mr Delore about the safety breach on 3 March 2025, he responded to Mr Delore saying “What the fuck are you talking about?” and “Well, what have I even done?”;[27]

(b) in his text message to Mr Schiaffi on 4 March 2025, he says “Great I haven’t even done anything wrong”;[28]
(c) during the meeting on 4 March 2025, he says “I had handrails and boards underneath me. I made an assessment, I wasn’t just winging it. I thought it was safe for me. I’m sorry if you see it differently.”;[29]
(d) at the meeting on 6 March 2025, he says “I’m sorry. I don’t know what else to say” and “I’m sorry. I’ve apologised repeatedly, but it seems like we’re having the same conversation as last time”.”[30]

The Respondent’s evidence was that the Applicant never once said the word “sorry” or showed any remorse for his safety breach on 3 March 2025. However, the Respondent submitted that even if the Applicant had said “sorry”, the use of the word “sorry” in the above context does not involve the Applicant expressing remorse or contrition for his safety breach.

Further, the Respondent noted that the Applicant has sought to explain his responses to the 3 March 2025 safety breach as arising from his need to spend a stressful time with his partner in the hospital and asserts he was exhausted when the allegations were put to him. The Respondent, submitted, however, that the Commission should not accept this explanation, particularly in circumstances where:

“(a) the Applicant was of the same attitude in his first communication with Mr Delore about the matter on the morning of 3 March 2025, before the Applicant was even aware that his partner needed medical attention;

(b) the Applicant was not undertaking work during the period that his partner was in hospital as he ceased work on the morning of 3 March 2025, such that he was not laboured down with work at the time;
(c) the Applicant was never forced to attend a meeting with the Company at a particular time, indeed, on the Applicant’s own material filed with the Commission, it was the Applicant who set the time of 2.00 pm for the meeting that occurred on 4 March 2025 and in respect of the meeting that occurred on 6 March 2025, Mr Schiaffi asked the Applicant if he would be available for a meeting on that day; and
(d) the Applicant never once asserted to the Company that he was “exhausted” or otherwise not in a position to attend a meeting with the Company.”

The Respondent, once again, submitted that these concessions by the Applicant are “too little, too late” and a “desperate attempt by the Applicant to give the Commission trust and confidence that he is remorseful, accepts responsibility for his safety breach and is committed to working in accordance with the Company’s safety requirements going forward”.

Comparison with the Company’s treatment of Igor Turkin

The Respondent submitted that the issue of differential treatment in an unfair dismissal matter has been considered by a Full Bench of the Commission in Darvell v Australian Postal Corporation,[31] in which it was observed that:

“[21] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. In Sexton’s case, his Honour said:

“[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …

[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a ‘fair go all round’ within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.”

[22] Section 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to s.387(h) of the FW Act.

[23] Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President Kaufman said:

“[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP’s observation in Sexton that ‘there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.’ There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly’s years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly’s termination of employment was harsh, unjust or unreasonable.” [Footnotes omitted]

[24] We respectfully concur with their Honours.”

The Respondent submitted that the only evidence the Applicant has put on in relation to the treatment of another employee in relation to a safety breach is found in paragraph 24 of his witness statement. However, the Respondent submitted that paragraph does not assist the Commission in properly understanding the circumstances surrounding the two employees.

The Respondent submitted that the only safety incident of the nature described at paragraph [24] of the Applicant’s witness statement was an incident involving a scaffolder by the name of Igor Turkin. The Respondent submitted that the relevant facts and circumstances relating to Mr Turkin’s safety breach are detailed at paragraphs [29]-[31] of Mr Schiaffi’s witness statement. The Respondent submitted that on Mr Schiaffi’s evidence, the Applicant has not compared “apples with apples”.

Responses to other matters raised by the Applicant in relation to the Commission’s consideration under s.387(h)

The Respondent refuted the Applicant’s assertion that the action of dismissal was disproportionate to his conduct. The Respondent maintained that the Applicant’s employment was terminated for serious and wilful misconduct, for which the Applicant showed no remorse.

The Respondent submitted that, in circumstances where an employee:

“(a) on the one hand, acknowledges that they breached an employer’s safety requirements, and a critical safety requirement at that;

(b) but on the other hand, fails to acknowledge wrongdoing; and

(c) instead doubles down and indicates they will determine what is safe and not the employer,
the employee “ties the hands of the employer” because allowing an employee to remain in their employment in those circumstances would undoubtedly result in the employer breaching its statutory obligation under WHS laws to ensure the health and safety of workers in the employer's workplace.”

The Respondent submitted that it would not have been appropriate to simply issue a final warning, because the Respondent would be negating its statutory obligation and playing “Russian Roulette” with safety. The Respondent submitted that this was particularly the case, where there was a real and significant risk that the employee would not heed the warning.

As to the Applicant’s personal circumstances, the Respondent accepted that the Applicant has difficult personal circumstances due to his partner suffering from paraplegia and the Applicant’s role as her carer. The Respondent submitted that it has always been sympathetic to those circumstances.

However, the Respondent submitted that the personal circumstances of the Applicant and his partner, whilst tragic, do not justify a finding of harshness having regard to the seriousness of the safety breach.[32]

The Respondent submitted that no significant mitigating factors exist to satisfy a conclusion of ‘harshness’ in this matter.

The Respondent maintained that there was a valid reason for the Applicant’s dismissal, that it was not harsh, unjust or unreasonable, and accordingly, that the Applicant was not unfairly dismissed.

Remedy

The Respondent submitted that if, contrary to these submissions, the Commission forms the view that the Applicant was unfairly dismissed, the Commission should exercise its discretion and not award any remedy to the Applicant given the level of his culpability in relation to the matter.

Reinstatement

Whilst the Applicant has sought reinstatement, the Respondent submitted that it is clear on the evidence that the Respondent has lost all trust and confidence in the Applicant, particularly having regard to the Applicant’s refusal to accept that what he did was unsafe.

The Respondent submitted that reinstatement would not be an appropriate remedy.

Compensation

The Respondent submitted that, having regard to the evidence, the Commission should find that the Applicant’s employment would not have continued for any significant period but for the dismissal.

Further, the Respondent submitted that the Commission should exercise its discretion not to award any compensation, having regard to the seriousness of the Applicant’s misconduct and his lack of accountability for his misconduct.

Applicant’s Submissions in Reply

The Applicant disagreed with the Respondent’s characterisation of the dismissal being for a valid reason. The Applicant submitted that, whilst the safety breach of 3 March 2025 has been admitted, the conduct, in context, did not justify dismissal.

The Applicant submitted that the safety breach was a single, isolated instance in a seven-year period of unblemished service. The Applicant maintained that, on the evidence before the Commission, the dismissal was not motivated solely by the conduct itself, but by “a subjective and unreasonable assessment of the applicant’s demeanour during the disciplinary meetings of 4 March 2025 and 6 March 2025 respectively” (the disciplinary meetings).

The Applicant submitted that, during the disciplinary meetings, Mr Schiaffi misinterpreted his exhausted and distressed presentation, following a hospital stay with his paraplegic partner, as arrogance, referring to him as a “cowboy”. The Applicant submitted that the circumstances of his dismissal reflect a disproportionate and reactive decision, driven less by genuine concern for site safety and more by Mr Schiaffi’s emotional response to the Applicant’s manner and language in the disciplinary meetings.

The Applicant did not deny that he breached the 1M Catch Deck requirement (although he did claim that it was 2 metres under cross-examination), however, submitted that he acknowledges the seriousness of the breach and holds genuine remorse for his actions, contrary to the submissions of the Respondent.

Respondent’s evidentiary case

The Applicant raised concerns relating to the credibility of the Respondent’s evidence. In summary, the Applicant submitted as follows:

· Mr Schiaffi claimed that on or around September 2024, he was informed that the applicant’s partner had been hospitalised following a “further biking accident”. However, the Applicant’s partner is paraplegic, relies on the use of a wheelchair for mobility, and is consequently no longer able to ride a bike. The Applicant submitted that this assertion is not only false but undermines confidence in Mr Schiaffi’s evidence more broadly;

· The Respondent’s evidence fails to meaningfully engage with several aspects of the Applicant’s evidence. Where the Respondent has attempted to address claims made in the Applicant’s witness statements, the Commission should prefer the evidence of the Applicant’s witnesses as they indicate a more complete record of events;

· The Applicant remains of the view that the decision was ultimately influenced by Mr Schiaffi’s adverse reaction to the Applicant’s conduct in the disciplinary meetings, not the safety breach itself.

As to the Respondent’s submissions relating to ‘valid reason’, the Applicant submitted as follows.

The Applicant referred to the Respondent’s reliance on the decisions in Arnotts and McLean to assert that non-compliance with a lawful and reasonable direction relating to safety can, in “particular circumstances”, justify summary dismissal. However, the Applicant submitted that this “glosses over” Logan J’s qualifying language in Arnotts at paragraph [19], which emphasises that the legal and industrial context must be considered in determining whether summary dismissal is appropriate.

The Applicant submitted that in light of the particular circumstances of the present case, summary dismissal was not appropriate based on the following:

“a. There is no evidence of a pattern of unsafe behaviour;

b. The applicant was under significant personal stress and fatigue during the relevant period; and

c. The respondent failed to consider the alternate disciplinary courses available under clause 30 of the Agreement.”

The Applicant submitted that these matters materially undermine the Respondent’s claim that the dismissal was justified by a valid reason within the meaning of section 387(a) of the FW Act.

Further, the Applicant noted that the Respondent has characterised his safety breach as ‘wilful’ based on the Applicant’s comment that he had made an assessment and deemed the circumstances to be “safe enough for him”. However, the Applicant submitted that this statement did not reflect deliberate disregard for safety protocols. Rather, it revealed a misjudgement in the moment. The Applicant submitted that he did not claim he deliberately ignored the SWMS, nor that he chose to flout it intentionally.

The Applicant submitted that the Respondent has relied heavily on the Applicant’s seniority and the fact that he had attended a toolbox regarding the importance of the SWMS on 21 February 2025 to argue the breach was deliberate. However, the Applicant submitted that those same facts “lend support” to his case. The Applicant submitted that he was an experienced and safety-conscious employee who made a one-off error under pressure. The Applicant submitted that a seven-year record free of safety breaches points to an aberration, not a careless approach to safety.

The Applicant also submitted that the breach occurred on a day when time pressure was evident. The Applicant submitted that he was working in an area that had been scheduled for a road closure, for which traffic controllers had been engaged, adding further context to the lapse. The Applicant submitted that, while serious, the breach does not rise to the level of “serious and wilful misconduct” when viewed in full.

The Applicant submitted that the absence of prior warnings, and the failure to consider graduated disciplinary steps per clause 30 of the Agreement, also weighs heavily against the dismissal being proportionate or procedurally fair.

Procedural and substantive unreasonableness

The Applicant reiterated that he attended both disciplinary meetings whilst exhausted, having spent late nights at his partner’s hospital bedside.

The Applicant noted that Mr Schiaffi has admitted that he lost his temper during the 6 March 2025 meeting.[33] The Applicant submitted that the physicality of him slamming his hands on the table and the use of the phrase “you just don’t give a fuck” reflects an emotional, rather than objective, response. The Applicant submitted that this admission by Mr Schiaffi supports the Applicant’s submission that the decision to dismiss was tainted by procedural unfairness and a lack of impartiality.

The Applicant maintained that “[i]t is clear that the outcome was influenced by the tone and atmosphere of the meeting, not solely by the conduct on 3 March 2025”.

(My emphasis)

For these reasons, the Applicant maintained that the decision to dismiss him, rather than issue a warning or impose a lesser sanction, was a disproportionate response arising from Mr Schiaffi’s emotional reaction, not a considered assessment of safety risk.

The decision in Perri

The Applicant accepted the respondent’s clarification in relation to the decision in Perri.

Nevertheless, the Applicant submitted that Perri remains relevant for its implied commentary: that dismissals based on perceived demeanour must be approached with caution. The Applicant submitted that in both Perri and the present matter, a manager over-interpreted a worker’s response as evidence of poor safety attitude.

The Applicant submitted that his explanation of his conduct, even if poorly expressed, was not a repudiation of safety values. It was made under duress, following a night of emotional and physical strain.

The Applicant submitted that, as in Perri, the Commission should find that subjective assessments of demeanour, particularly in disciplinary meetings, cannot displace the need for a fair and proportionate response to the underlying conduct.

Conclusion

For the reasons outlined above, the Applicant submitted that the Respondent has failed to establish that he was dismissed for a valid reason within the meaning of section 387(a) of the FW Act.

The Applicant submitted that if, in the alternative, the Commission is satisfied that a valid reason existed for his dismissal, then his dismissal was harsh, unjust, and unreasonable within the meaning of section 387(h) of the FW Act, having regard to:

“a. His otherwise unblemished 7-year service record;

b. The fact that no other workers were endangered by the applicant’s breach;
c. His acceptance of the breach and attempt to explain it, rather than deny it; and
d. The emotionally charged, procedurally flawed disciplinary process driven by Mr Schiaffi’s aggression and loss of objectivity.”

Consideration

I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses.

It is not in dispute, and I find, that the Applicant is protected from unfair dismissal, submitted his application within the statutory timeframe, was not made genuinely redundant and did not work for a Small Business.

When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne)[34] is of significance:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”  

In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (AMH)[35] held:

“The above extract is authority for the proposition that a termination of employment may be:  

·            unjust, because the employee was not guilty of the misconduct on which the employer acted;  
·            unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or  
·            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”.

Further, a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd[36] said:

“[24] 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”.  

I now turn to the criteria for considering harshness as provided in s.387 of the FW Act.

Section 387(a) - Valid Reason

The meaning of the phrase “valid reason” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd:[37]

“In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee’s capacity or performance or based on the operational requirements of the employer. … 

In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound,  defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them.  The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly…”.

In Rode v Burwood Mitsubishi,[38] a Full Bench of the Australian Industrial Relations

Commission held:  
 

“… the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 

In Qantas Airways Ltd v Cornwall (Cornwall)[39] the Full Court of the Federal Court of Australia said:

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.” 
(My emphasis)

The Applicant has argued that the reason relied on by the Respondent for effecting his termination was not the real reason for his termination. Further, the Applicant has denied that his safety breach satisfies the meaning of ‘serious and wilful misconduct’.

The Applicant is an experienced scaffolder and a former supervisor and leading hand of the Respondent. As such, the Applicant is a ‘leader’ within the work group who would set the standards for workplace productivity and safety of his colleagues. I have taken this into account.

Under cross-examination, the Applicant accepted that a number of the statements that he made in his witness statements were incorrect. I have taken this into account.

I have taken into account the testimony of the Applicant in relation to the fall deck. The SWMS requires the deck to be a full deck which sits just 1 metre below the work platform. Surprisingly, the Applicant did not seem to understand this requirement.

Begrudgingly, the Applicant accepted that he breached the SWMS:

“THE COMMISSIONER: What about the comment just there, Mr Kehoe, where you say, 'Whatever, I fucked up. It was outside the SWMS, but I think I was working safely'? Is that what you really said?‑‑‑I think I did because I hadn't put – I broke the SWMS by not putting the deck and the 500 lift at the bottom on the ground. I utilised the boards I had, so yes.
…
What you are basically saying in this conversation, though, was that – if you go down a bit, still on the screen there, 'Others don't follow the SWMS'?‑‑‑Yeah.
You're the leading hand and you've got people under you not following the safe work method statements. I'm sitting here shaking my head saying, 'Why'?‑‑‑Yes.
So what is it? Is this a company policy, is it, that the workers just ignore the SWMS and just do whatever they want?‑‑‑Some. I made a bad judgment call. I assessed what I was doing that day and deemed it safe and I didn't complete the bottom deck, so I – yes, I - - -”[40]

It is apparent that the Applicant did not understand the Respondent’s SWMS:

“I don't think we're worried about the bottom deck. I think what Mr Donnelly is suggesting to you is that there should have been a deck 1 metre below you?‑‑‑A full deck is every 2 metres, I understand, in our SWMS.”[41]

The Applicant’s recollection of the SWMS is not accurate. The toolbox meeting on 21 February 2025 was used as refresher training on the SWMS. The record of that toolbox meeting provides:[42]

“Issues Communicated:
Tuesday 20/02/2025 worker was spotted dismantling scaffold with an exposed edge to the internal face of the scaffold.
There was a gap of 750mm between the scaffold and lift core walls where hop ups had been removed.
There was a potential to fall approx 2:5m to the catch hop up to the deck bellow. [sic]
1m rule safe work refresher.
PHASE ACTIVITIES
1 Planning
Waco Leading Hand to carry out a daily Pre-start meeting with all Scaffolders, ensure the following is discussed and recorded GO CANVAS DAILY PRE-START FORM:
·   Ensure all workers have been consulted and have signed the SWMS.
·   Discuss the work that is to be done that day and sort out who is doing what.
·   Discuss the hazards and controls detailed in the SWMS for the tasks that will be done on the day and other hazards that may be in the area/environment where the work is being carried out e.g. other trades, crane lifts, weather, unplanned work etc.
·   Ensure all workers have everything they need to be able to put all controls in place.
·   Discuss any foreseeable problems and how they will be managed.
·   Discuss how variations and day work will be managed.
·   Ensure injury reporting and first aid arrangements are discussed/documented.
2 Work area set-up
Waco Leading Hand to ensure
·   All workers know the communication arrangements.
·   All material needed for the day is available on site.
·   Exclusion zone-barriers and signage is installed.
3 Mandatory control- Temporary Erection Platforms (TEP)- General Use
General use TEP MUST:
·   Be a minimum of two steel boards (no less than 450mm) on transoms, or
·   Be a minimum of two timber boards (no less than 450mm) on ledgers/guardrails
·   Overhang a minimum of 150mm on both sides (timber boards).
·   Be in direct contact with the ledger/guardrail- NOT PLACE ON OTHER TIMBER BOARDS.
·   Have guardrails installed on one side and both ends (one side open enables the equipment to be handed to the scaffolder installing the scaffold components)
·   1 metre above a FULL PLATFORM- NO MISSING BOARDS.
Responsibility: Leading hand and workers installing TEP.
4 Mandatory control- One Metre Rule- General Use
The work sequence below MUST be followed:
WORK PLAN/INSTRUCTION
1.   Ensure working from full platform on the first bay with guardrail and midrail (OR guardrail and mesh guard) in place on the outside.
2.   Where the scaffold is greater than 225mm from the building a guardrail, midrail and toeboard (OR guardrail and mesh guard) must be placed on the inside of each bay.
3.   Access top platform by stair/ladder. Do not climb the standards.
4.   Erect the next lift above the top platform.
5.   Place TEP at 1m height above the top platform.
6.   Access the TEP and erect standards, guardrails and midrails for next lift.
7.   Egress from TEP to top platform and erect boards to next lift.
8.   Erect alloy stair bay to next lift.
9.   Access new top platform by alloy stair (OR ladder).
10. Fit toeboard to the platform.
11. Repeat steps 1 to 10 for next bays and steps 1 to 11 for each lift.

1.   YOU MUST ALWAYS HAVE A FULL PLATFORM 1M BELOW THE TEP
2.   IF YOU CAN NOT, STOP WORK AND FOLLOW PHASE 6 OF THIS WORK PLAN/INSTRUCTION.
Responsibility: Leading hand and all workers installing scaffolding system.
6 Process when mandatory requirements cannot be implemented
If the work sequence or mandatory requirements detailed in this Work Plan/Instruction cannot be implemented or if there is a change to the task/project scope WORK MUST STOP and the following process MUST be applied:
·   A risk assessment must be completed
·   An alternate fall protection control measures must be identified and added to the SWMS and this Work Instruction/Plan.
·   The identified control measures must be approved by a Construction Supervisor or Branch Manager”

(Respondent’s emphasis)

I have taken this into account.

The failure to follow the Respondent’s SWMS in this manner is inexcusable, particularly after the recent serious accidents involving the Respondent’s workforce and the toolbox talk on this very issue only 10 days previously and the Applicant’s role in the organisation. I have taken this into account.

Regulation 1.07 of the Fair Work Regulations 2009 states:

“1.07 Meaning of serious misconduct

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

Examples of serious misconduct—employees

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

(a) wilful or deliberate behaviour 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;…”

The Concise Oxford Dictionary (10^th Edition) defines:-

· ‘serious’ to mean: “…3. Significant or worrying in terms of danger or risk: serious injury”; and

· ‘misconduct’ to mean: “1. unacceptable or improper behaviour”.

I have adopted the plain English meaning of these two words as defined above.

I am satisfied and find that the Applicant engaged in serious misconduct by deliberately ignoring the SWMS. This created a dangerous situation for himself where he could have been seriously injured. Such actions are easily defined as being unacceptable or improper behaviour. As a former Supervisor, a current Leading Hand and a very experienced Scaffolder, I cannot accept or condone that the Applicant would be ignorant of the 1M Safety Deck Rule.

For the reasons stated above, I am satisfied and find that the Respondent had a valid reason to terminate the Applicant.

Section 387(b) - Notified of the Reason

The Respondent submitted that it put the Applicant on notice of its concerns in relation to the safety breach within minutes of the breach occurring on 3 March 2025, and that the allegations against the Applicant were reiterated to him in the meetings of 4 and 6 March 2025. The Applicant has acknowledged that he was notified of the reason for his dismissal. I have taken this into account.

Section 387(c) - Opportunity to Respond

The Applicant acknowledged that he attended an initial meeting in relation to the safety breach on 4 March 2025 and was invited to a further meeting on 6 March 2025 where he was asked to ‘show cause’ as to why he should not be dismissed for the safety breach of 3 March 2025. I have taken this into account.

The Applicant was entitled to be given the accusations of his safety breach in writing. The Applicant should then have been given an opportunity to respond to those allegations in writing prior to any disciplinary meeting. It is not in dispute that the Applicant was not provided with these essential procedural processes. I have taken this into account.

Section 387(d) - Any refusal of a support person

There was no refusal of a support person by the Respondent. The Applicant availed himself of the opportunity to have a support person present with him at the dismissal meeting of 6 March 2025. I have taken this into account.

Section 387(e) - Unsatisfactory performance

The dismissal was not due to unsatisfactory performance of the Applicant. This is a neutral factor.

Section 387(f) and (g) - Size of Employer and dedicated HR specialists

The Respondent is a large enterprise that employs dedicated human resource personnel. I have taken this into account.

Section 387(h) - Any other matter

It is not in dispute that the Applicant is the carer for his disabled partner, and I am satisfied that the Applicant’s partner had been rushed to hospital on the day of the safety incident. Further, the Applicant had spent an excessive amount of time at the hospital between the two meetings that were convened by the Respondent. I am satisfied and find that the Applicant would have been suffering from sleep deprivation during the disciplinary process conducted by the Respondent. I have taken this into account.

I do not accept the description of the incident as described by Mr Schiaffi for a number of reasons:-

If the Applicant had been working as inherently unsafely as described by Mr Schiaffi, i.e., holding on to the scaffold with one hand whilst having both feet outside the structure of the scaffold, at a height of 2.7 metres, then Mr Schiaffi should have stopped his car and given instructions to cease this life-threatening work practice immediately. There was no danger to Mr Schiaffi stopping his car in the middle of the road for 10-15 seconds to call out to the Applicant. The roadway was under the control of traffic controllers.
Mr Schiaffi did not immediately call the Applicant’s Supervisor to have him stop the dangerous work practice. Nor did the Supervisor tell the Applicant to stop the work practice.

The Respondent did not call or subpoena the other witness to the incident. No employee would be admonished by his colleagues if they reported a fellow employee working in a manner as described by Mr Schiaffi.
Mr Schiaffi was driving his vehicle, albeit at a slow speed. Mr Schiaffi testified that he was driving safely and only fleetingly diverted his eyes off the road.

At the Hearing, in response to questions from me, Mr Schiaffi testified as follows:

“I'm just wondering about the safety issue. You're travelling 10 to 15 ks an hour, you said, you had just gone through a traffic controller's stop sign, it's a closed road. I'm just wondering where the safety issue arises. Had you stopped the car, or opened the door, or put your hazard lights on, for example, that would have made the situation pretty safe?‑‑‑I could have potentially done that. I acted in the way that I thought would be most appropriate at the time in the short space of time that I had to see and judge and - - -

It's just that I'm not sure about how short the time was on the basis that, paragraph 41, you've looked up and seen scaffolders working at height, then, at 44, you've looked up again, so obviously you'd be closer now because you were able to judge that Mr Kehoe was working at a height of 2.5 metres, and you were so close in fact you were able to observe him basically standing on the side bars or handrails of the scaffold, which I would think was highly dangerous. You would agree with that, I'm assuming?‑‑‑Yes.

Why wouldn't you stop immediately?‑‑‑I would say that that was an error in my judgment.”[43]

For reasons known only to Mr Schiaffi, he did not raise the allegation with the Applicant that he was working outside of the scaffolding in either the meeting on 4 March or 6 March 2025. In response to questions from Ms Bouwsema, Mr Schiaffi testified:

“But you agree that it's quite a serious allegation, that you observed, you say, not just that he did not have a catch deck, which is already, obviously, in breach of the SWMS, which Mr Kehoe has acknowledged and is uncontroversial, but this further allegation that you've made, Mr Schiaffi, why was that not raised in either the investigation meeting of 4 March and the final meeting of 6 March?‑‑‑I would argue that any breach of the SWMS is serious.

Yes, that is not in contest, Mr Schiaffi. What I'm concerned about is that the allegations were not put to Mr Kehoe in the manner that you observed in either meeting that took place with Mr Kehoe?‑‑‑Well, the breach of the SWMS, you know, not having a catch deck within a metre was a big enough issue and a big enough problem in my mind without even getting into anything else.

I put it to you that they were not raised, those issues, those allegations were not raised because they were false and you did not observe Mr Kehoe balancing on the transom and a ledger with his arm wrapped around the standard in the way that you allege in your statement?‑‑‑I strongly disagree with what you're saying.”[44]

I have taken the issues outlined in paragraphs [195] – [197] into account.

I have taken into account the emotional response by Mr Schiaffi at the meeting on 6 March 2025. Slamming his hands on the table and raising his voice at the Applicant is not appropriate behaviour during a disciplinary meeting for a manager – despite the level of frustration.

I have taken into account the somewhat carefree attitude of the Applicant during the process. Even allowing for his sleep deprivation and concern for his partner’s well-being, the Applicant failed to acknowledge the safety requirement for a full 1 metre deck below his work platform.

The Applicant raised a previous incident in relation to a fellow employee, who also had failed to construct a temporary platform 1 metre below his working platform. In that instance, the employee was given a final warning and was not dismissed. The Applicant has claimed that this disparate treatment is unfair. However, I do not agree. The Applicant was a former Supervisor, was now a Leading Hand and had undertaken a re-training on the SWMS in the period immediately before the incident of 3 March. The Respondent is entitled to demand absolute compliance from an employee with the Applicant’s experience and position. I have taken this into account.

The Respondent referred the Commission to a Full Bench decision in Newton. Whilst I have rejected the evidence of Schiaffi in relation to his description of the Applicant working outside of the scaffolding structure, for completeness I note paragraphs [183] and [184] of Newton as follows:

“[183] As observed by the Full Bench in Crozier v Palazzo Corporation Pty Ltd:
‘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. Section 170CG (3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.’

[184] The above statement of principle also applies to ss.387(b) and (c).”

These extracts indicate that an employer has a requirement to advise an employee of the reasons for their termination in order to satisfy the procedural fairness requirements of the FW Act.

Conclusion

The building and construction industry is a very dangerous industry where there are far too many injuries and fatalities every year. The CFMEU has been instrumental in the introduction of safety processes, such as SWMS for basically every task, to minimise the inherent risks associated with working in this industry. However, all of those successful campaigns for a safer workplace are in vain if employees do not follow the relevant safety procedures. I am satisfied and find that the Applicant did not follow the SWMS in this incident despite having been retrained on them in the previous fortnight.

However, every employee is entitled to “a fair go”, which includes an opportunity to respond to a set of written allegations. This did not occur in this circumstance. As a result, I am satisfied and find that the Applicant did not receive his statutory entitlement to a fair go.

I am satisfied and find that the Applicant’s termination lacked the requisite procedural fairness, which renders the Applicant’s termination as harsh.

As a result, I am satisfied and find that the Applicant was unfairly dismissed.

Remedy

Having found that the Applicant’s termination was harsh, I now turn to the issue of an appropriate remedy.

The relevant provisions of the FW Act in relation to a remedy for an unfair dismissal are:

“390      When the FWC may order remedy for unfair dismissal
(1)       Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a)       the FWC 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) The FWC may make the order only if the person has made an application under section 394.
(3)       The FWC must not order the payment of compensation to the person unless:
(a)       the FWC is satisfied that reinstatement of the person is inappropriate; and
(b)       the FWC 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 the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC 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 the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC 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), the FWC 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.”

“392 Remedy—compensation

Compensation

(1)       An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2)       In determining an amount for the purposes of an order under subsection (1), the FWC 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 the FWC considers relevant.

Misconduct reduces amount
(3)       If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4)       The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5)       The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a)       the amount worked out under subsection (6); and
(b)       half the amount of the high income threshold immediately before the dismissal.

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

(a)       the total amount of remuneration:
(i)           received by the person; or
(ii)          to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

Parties’ Submissions

Further to the hearing in this matter, both parties provided submissions in relation to remedy as follows.

Applicant’s Submissions on Remedy

The Applicant provided calculations in relation to the sum of compensation sought as follows:

“• Applicant's average weekly earnings at the Company (at [103] of the Statement of Tim Schiaffi, based on 36.5 weeks): $3,918.99

· Total estimated earnings had the employment continued (average x 24 weeks): $94,055.76

· Applicant's mitigated loss (7 March 2025 to 25 July 2025) cash in hand/casual work (estimated): $4,150.00

· Applicant's mitigated loss (26 July 2025 to 21 August 2025): $15,479.55

· Estimated total loss: $74,426.21”

The Applicant provided payslips in support of these calculations. The Applicant noted that he has provided an estimate of his earnings for the period of 7 March 2025 to 25 July 2025 as he did not have written records of the cash in hand work he had performed.

Respondent’s Submissions on Remedy

In response to the Applicant’s calculations, the Respondent submitted as follows:

“1. The Union’s calculation infers that the Applicant’s employment would have continued for a period of 24 weeks had his employment not been terminated. Given the Applicant’s unwillingness to acknowledge that he had even done anything wrong and his unwillingness to accept responsibility for his serious safety breach, the Commission could reasonably find that the Applicant’s employment would have ended within an 8 week period such that the maximum claim should be limited to 8 x $3,918.99 – being an amount of $31,351.92 (the Maximum Amount).

2. Regarding the estimated earnings for the period between 7 March 2025 to 25 July 2025, when the Applicant allegedly performed cash-in-hand work, the estimated earnings of $4,150 is remarkably low, as this means that over a period of 20 weeks, the Applicant only earned an average of $207.50 per week. The Respondent submits that it is too convenient that the Applicant has no records of what he received during this period of employment and is only providing an estimate. It was open to the Applicant to request records under Reg 3.42 of his earnings and hours of work from all employers he had worked for during this period to substantiate his earnings, but the Applicant has failed to do so.
Further, the Applicant has not provided any documentary evidence to indicate the extent of his job-seeking activities during the period 7 March 2025 to 25 July 2025 and, accordingly, cannot properly satisfy the Commission that he took reasonable steps to mitigate his loss before he obtained his current position.
Applying the Applicant’s own estimated earnings to the 8-week anticipated period of employment, and using the average earning of $207.50 per week, the Applicant’s estimated earning between 7 March 2025 to 1 May 2025 (being the date that is 8 weeks after the date of termination) is $207.5 x 8 = $1,660.00 (Deduction A).
The Respondent submits that the failure to mitigate should reduce the Maximum Amount by at least a further 15% being an amount of (0.15 x $31,351.92) $4,702.78 (Deduction B).
3. The amount of $15,479.55, which the Applicant asserts is his earnings for the period 26 July 2025 to 21 August 2025, is inaccurate. That amount is his earnings for the period 26 July 2025 to 15 August 2025. The Applicant has not provided any payslips for any work performed after 15 August 2025. In this circumstance, it would be appropriate for the Commission to estimate the Applicant’s income for the additional week based on an average of his income for the three prior weeks, which amounts to a discount on the Maximum Amount of approximately $19,165. This inaccuracy having been noted, this amount is not relevant for the purposes of calculating compensation because it falls outside the 8-week anticipated period of employment.
4. Finally, given the Applicant’s culpability for participating in a serious safety breach, the Respondent submits that the Maximum Amount should be discounted by at least 70% being an amount of $21,946.34 (Deduction C).”

The Respondent concluded that when the ‘Maximum Amount’ is reduced by ‘Deduction A, Deduction B, and Deduction C’ (equalling an amount of $28,309.12), the amount of compensation that could be awarded by the Commission should be no more than $3042.80.

Consideration

Reinstatement

The Applicant has sought reinstatement, compensation for lost wages and continuity of service.

The Respondent has strongly opposed the Applicant being reinstated on the basis that it has lost trust and confidence in his ability to work safely or to comply with its safety requirements. I have taken this into account.

The Applicant was in a position of authority and leadership as the Leading Hand for the Respondent on this site. The Respondent was entitled to expect that the Applicant would follow the safety standards that had been set by the Respondent. His blatant disregard of these safety requirements and his arrogant and dismissive approach to his actions, has resulted in a justifiable and understandable loss of trust and confidence by the Respondent in the Applicant’s ability to continue in his role.

Even though reinstatement is the primary remedy under the FW Act, I am satisfied and find, for the reasons stated above, that the required level of trust and confidence cannot be restored in this circumstance.

Compensation

I have taken into account the provisions of s.392 of the FW Act and the approach adopted Sprigg v Paul’s Licensed Festival Supermarket,[45] as articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages.[46]

Conclusion

I have previously found that the Respondent had a valid reason to terminate the Applicant, but they have not afforded the Applicant his statutory entitlement to procedural fairness in the termination process. As a result, the only compensation to which the Applicant is entitled, is the period of time that the Respondent should have taken in undertaking the appropriate process.

This process was rushed for no apparent reason. The Applicant should have been put off on special leave without pay for 1 week to deal with his partner’s hospitalisation. The Applicant should then have been provided with the SWMS breach allegations in writing at a convened disciplinary meeting and given 4-5 days to respond. This would have allowed the Applicant to get advice from his union in relation to his written response. The Respondent then should have taken some time to properly consider the Applicant’s written response and invite the Applicant and his support person to a further meeting to advise them of their considered outcome.

Due to the special circumstances of this case, I am satisfied and find that the Respondent must pay to the Applicant 2 weeks’ pay plus superannuation.

I so Order.

COMMISSIONER

[1] WorkPac Pty Ltd v Skene [2018] FCAFC 131; 280 IR 191 at [197].

[2] The Australian Concise Oxford Dictionary (2004) 4th ed, 1297.

[3] Ibid, 1641.

[4] Ibid, 895.

[5] Johnson v Marshall, Son & Co Ltd [1906] AC 409 at 415.

[6] [1998] FCA 88.

[7] Lawrence v Coal & Allied Mining Services Pty Ltd[2010] FWAFB 10089 at [20] and [38].

[8] Fair Work Bill, Explanatory Memorandum at [1541].

[9] Selvanchandran v Petaron Plastics Pty Ltd (1995) 62 IR 371 at 373.

[10] Lawrence v Coal & Allied Mining Services Pty Ltd[2010] FWAFB 10089 at [20] and [38].

[11] Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.

[12] Statement of Tim Schiaffi, filed on 14 July 2025, at Annexure TS1.

[13] Ibid, at Annexure TS2.

[14] Ibid, at [44].

[15] Ibid, at [66].

[16] (1995) 62 IR 371 at 373.

[17] Ibid.

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

[19] The Respondent cited the Statement of Rick Kehoe, filed on 23 June 2025, at [51]. The Respondent also cited the Applicant’s Outline of Submissions filed on 23 June 2025, at [21] where it is stated “The Applicant does not dispute the safety breach that occurred on 3 March 2025”.

[20] (1984) 155 CLR 306 at 313.

[21] (2010) 188 FCR 221.

[22] Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited (2010) 188 FCR 221; [2010] FCA 770 at [18] – [19].

[23] Statement of Tim Schiaffi, filed on 14 July 2025, at [82].

[24] [2020] FWCFB 1373.

[25] [2021] FWCFB 3457.

[26] Statement of Tim Schiaffi, filed on 14 July 2025, at [82].

[27] Statement of Rick Kehoe, filed on 23 June 2025, at [29].

[28] Ibid, at [38].

[29] Ibid, at [40].

[30] Ibid, at [48].

[31] [2010] FWAFB 4082.

[32] Parmalat Food Products Pty Ltd v Wililo[2011] FWAFB 1166 at [24].

[33] Statement of Tim Schiaffi, filed on 14 July 2025, at [87].

[34] (1995) 185 CLR 410.

[35] (1998) 84 IR 1.

[36] [2000] AIRC 1019.

[37] (1995) 62 IR 371.

[38] PR4471.

[39] (1998) 84 FCR 483.

[40] Transcript at PN249, 254-256.

[41] Transcript at PN257.

[42] Statement of Tim Schiaffi, filed on 14 July 2025, at Annexure TS1.

[43] Transcript at PN510-512.

[44] Transcript at PN547-549.

[45] (1998) 88 IR 21.

[46] [2012] FWCFB 431.

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