Pece Calovski v Opal Packaging Australia Pty Ltd
[2024] FWC 1717
•28 JUNE 2024
| [2024] FWC 1717 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Pece Calovski
v
Opal Packaging Australia Pty Ltd
(U2023/10560)
| COMMISSIONER MATHESON | SYDNEY, 28 JUNE 2024 |
Application for an unfair dismissal remedy – forklift incident – unintentional – alleged brake failure – failure to test for cause asserted by Applicant – deficiencies in investigation – reinstatement – back pay.
Mr Pece Calovski, (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Opal Packaging Australia Pty Ltd (Respondent). The Applicant seeks reinstatement and/or compensation,[1] with reinstatement being his preferred remedy.
When can the Commission order a remedy for unfair dismissal?
Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Background
The uncontested factual background to the matter is as follows:
The Applicant commenced working for the Respondent on 10 December 2020 as a machine operator before moving into the role of corrugator floater.
In his role of corrugator floater, the Applicant was required to perform various tasks including driving forklifts and working on a cardboard stacker.
On 27 June 2023, the Applicant was the driver of a grab forklift that was the subject of an incident at the Respondent’s premises. The cause of the incident is a matter in dispute between the parties.
After the incident the Applicant was suspended from forklift duties but otherwise continued to perform duties on the cardboard stacker until being suspended from all duties on 11 October 2023.
On 3 October 2023 the Respondent wrote to the Applicant stating that it had received reports from Adapt-A-Lift (the lessor of and entity that services the forklift) and SafeWork NSW regarding the incident and that the reports “confirm that there was not fault in the braking system on the grab forklift.”[2] That letter went on to make allegations that the Applicant:
1. failed to operate the “grab forklift” in a safe manner causing extensive damage and created a safety incident that could have resulted in injury and or loss of life; and
2. despite being informed that the reports from Adapt-A-Lift found that the braking system for the grab forklift was in perfect working order, the Applicant had not been willing to accept any responsibility for the incident despite being given the opportuning to do so. The Respondent said this occurred in circumstances where:
(a)in a statement of 27 June 2023 the Applicant said that he tried to apply the brake and his foot pushed the pedal to the floor, the pedal provided no resistance and felt soft, there was no braking and the grab forklift kept moving;
(b)in a subsequent meeting on 4 July 2023 the Applicant was informed that the report from Adapt-A-Lift stated that the braking system for the grab forklift was in good working order, was again given the opportunity to state what had occurred and did not accept any responsibility for the incident in that meeting.[3]
The letter of 3 October 2023 required the Applicant to attend a meeting on 5 October 2023 to respond to the allegations and invited him to have a support person present.
On 9 October 2023 the Applicant responded to the letter of 3 October 2023 in writing. In that letter the Applicant maintained that during the incident on 27 June 2023 he applied the brake, his foot pushed it to the floor, it was soft and provided no resistance and the grab forklift kept moving.[4]
On 11 October 2023 the Respondent wrote to the Applicant advising him that it had completed its investigation and:
ofound on the balance of probabilities that the incident on 27 June 2023 was due to his “failure to operate the forklift in a safe manner, in line with [his] training, which led to a serious accident that could have resulted in loss of life;”
odid not accept his explanation for the incident;
owas considering terminating his employment on the grounds of misconduct;
oinvited the Applicant to a meeting to provide him an opportunity to provide any further information he believed was relevant before a final decision was made;
onotified the Applicant of his immediate suspension from work.[5]
On 13 October 2023 a meeting was held between the Applicant and Respondent.
On 13 October 2023 the Applicant also responded in writing to the letter of 11 October 2023 raising a number of concerns including, by way of summary:
othat the investigator of the incident, Mr Alastair Conway, was not impartial;
othat statements of Adapt-A-Lift referred to in the incident report were contradicted by the service manual;
oconcerns regarding the service history in relation to the grab forklift;
othat SafeWork NSW and the Respondent had relied on reports from Adapt-A-Lift who the Applicant considered was not impartial;
othat the Respondent had breached its enterprise agreement during the investigation process.[6]
The Applicant also indicated in his letter of 13 October 2023 that he:
ohad been truthful throughout the investigation process;
othoroughly enjoyed working for the Respondent;
owould never intentionally endanger his colleagues;
ohad been operating forklifts for 30 years without incident.[7]
On 16 October 2023 the Respondent responded to the Applicant’s letter of 13 October 2023 confirming that the allegation that he did not accept responsibility for the incident was substantiated because his explanation was inconsistent with:
oan email from the SafeWork NSW Inspector that said:
“The decision has been made that as the forklift operator Mr Pece Calovski has already been suspended from using the forklift at the workplace since the incident that Safework NSW will allow the PCBU to continue to manage the incident and not use our powers under Clause 110 of the WHS Act 2011 [noting that the reference to “clause 110 of the WHS Act 2011” should have been a reference to regulation 110 of the Work Health and Safety Regulations 2011 (NSW)].
It is an expectation that the PCBU will ensure that Mr Calovski is able to operate high risk work competently and safety (sic) prior to being allowed to use forklifts in the premises…”; and
othe report provided to SafeWork NSW by Adapt-A-Lift on 25 July 2023 in response to a Notice to Give Information to SafeWork NSW issued to Adapt-A-Lift pursuant to section 155(2) of the Work Health and Safety Act 2011 (NSW) which confirmed that confirmed the forklift brakes were in working order.
The letter of 16 October 2023 invited a further written response ahead of a meeting.
A meeting was held on 18 October 2023 between the Applicant and Respondent.
On 19 October 2023 the Respondent provided the Applicant with a letter notifying him of the termination of his employment on the grounds of “misconduct”, stating specifically that:
oon 27 June 2023 the Applicant failed to operate the grab forklift in a safe manner, causing extensive damage and created a safety incident that could have resulted in injury and or loss of life; and
odespite being informed that the reports from the forklift manufacturer, Adapt-A-Lift, found that the braking system for the grab forklift was in perfect working order he had not been willing to accept any responsibility for the incident despite being given the opportunity to do so.
The Applicant’s employment was terminated with immediate effect on 19 October 2023 and the Applicant was paid in lieu of notice.
At the time of his dismissal the Applicant’s ordinary weekly earnings were $1,528.55.
The hearing
There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act).
Permission to appear
The Respondent sought to be represented before the Commission by a lawyer.
Relevantly, s.596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.
Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:
(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the FW Act.[8] The decision to grant permission is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[9]
On the question of representation the Respondent submitted that:
there are some complex issues arising in the matter that relate to the interaction with the work health and safety regime;
the Applicant was represented by an experienced lawyer and advocate in Mr Martin of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU);
it would be unfair to allow registered organisations to be able to have adequate legal representation in circumstances where the Respondent did not.
The Applicant did not object to the Respondent being represented by a lawyer.
I was satisfied that there was complexity in relation to the matter having regard to the matters in contest between the parties, particularly relating to the question of whether there was a valid reason for the dismissal in the context of a very serious safety incident. In this regard there was a significant volume of materials filed and a significant number of witnesses involved in the proceedings, including two SafeWork NSW inspectors who were ordered to attend the Commission and a witness that the Applicant had put forward as an expert. The competing positions of the parties regarding the cause of the serious safety incident was to require detailed testing of the evidence, including via a process of cross examination of multiple witnesses. Having considered those matters, I determined that allowing the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
I therefore decided to exercise my discretion to grant permission for the Respondent to be represented pursuant to s.596(2)(a) of the FW Act.
Accordingly, at the hearing held across 29 and 30 January 2024, the Respondent was represented by Mr Latham, initial I, of counsel and the Applicant was represented by Mr Martin, initial J, of the AMWU.
Witnesses
14 witnesses gave evidence to the Commission.
The Applicant gave evidence on his own behalf and the following witnesses also gave evidence on his behalf:
· Adam Williams, an employee of the Respondent, elected Health and Safety Representative and former colleague of the Applicant who was working the day of the incident;
· Rajiv Deo, employed by the Respondent as a ‘grab driver’ and who was working the day of the incident;
· Feng Li, employed by the Respondent as a Machine Operator and who was working the day of the incident; and
· Ahmet Sayan, employed by the Respondent as a Corrugator Operator, ‘Father of the Chapel’, an elected Health and Safety Representative and who was not working the day of the incident.
The following witnesses gave evidence on behalf of the Respondent:
· Derek Sporl, employed by the Respondent as Health and Safety Business Partner;
· Ahmad Ibrahim-Elgarhy, employed by the Respondent as Site Manager;
· Rod Harris, employed by the Respondent as National Operations Manager;
· Glenn Wilson, employed by the Respondent as Production Manager;
· Alastair Conway, employed by the Respondent as Day Shift Manager;
· Tom Paraskevopoulos, employed by Adapt-A-Lift Group Pty Ltd as a Service Technician;
Todd Brennan is an employee of Forkpro Australia Pty Ltd.[10] Mr Brennan’s evidence in relation to his qualifications and experience was that:
he completed an apprenticeship in Automotive Engineering in 1985;
he then obtained a role as a Warrant Affairs manager with Toyota’s Forklift Division and over the next 18 years was promoted to roles including Assistant National Service Manager (Forklift Division), National Service Manager (Forklift Division), Customer Service Manager responsible for parts and service operations (Forklift Division) and Operations Manager - Second in charge of Toyota's Industrial Equipment Division;
all roles with Toyota’s Industrial Equipment Division included forklift technical and forklift operator training, as well as acting in industry advisory roles. This included acting as Chairman for the Australian Forklift and Industrial Truck Association (AFITA) Engineering Committee as well as representing Toyota on several Australian Standards committees;
he formed Forkpro Australia in 2002 and since doing so has consulted on forklift safety matters to many major corporations and agencies, including providing expert opinions to SafeWork NSW and WorkSafe Victoria in relation to workplace safety incidents involving forklifts;
he has a Diploma in Workplace Health and Safety.[11]
In December 2023 Mr Brennan was engaged by the Respondent, via its representative, to provide an expert report, addressing specific questions, and to be available to give evidence during the hearing.[12] In doing so, Mr Brennan was asked by the Respondent’s representative to consider the following documents:
the Report of the Respondent’s ICAM (Safety) investigation (which is referred to elsewhere in this decision as the Sporl Investigation Report);
the Hyster Periodic Maintenance Manual that covers the forklift (Forklift Manual);
the SafeWork NSW inspection report (SafeWork Inspection Report);
the Job Service Card enclosing details of the post-incident inspection undertaken by Adapt-A-Lift (Job Service Card);
the Applicant’s response dated 9 October 2023 (Applicant’s First Response);
the Applicant's response dated 13 October 2023 (Applicant’s Second Response).
Mr Brennan provided his report to the Applicant’s representative on 10 January 2023 (Brennan Report).[13] The Brennan Report states:
it has been prepared on the basis of information received;
except as otherwise stated, Mr Brennan does not imply and it should not be construed that he has verified any of the documents provided to him or that his enquiries could have verified any matter which a more extensive physical examination might disclose;
Mr Brennan was not requested to investigate the incident on site;
Mr Brennan has not tested the forklift involved in the incident;
any conclusions drawn are from the documents provided to him and all opinions given are Mr Brennan’s.[14]
The Brennan Report indicates that in addition to the documents provided by the Applicant’s representative he also considered:
Australian Standard AS 2359.2-2013 Powered Industrial Trucks Operations;
Work Health and Safety Regulation 2017 (NSW);
Unit of Competency TLILIC0003 - Licence to operate a forklift truck;
Hyster brochure S135-155FT Series; and
Hyster S135-155FT Series technical guide.
The Brennan Report also indicates that Mr Brennan has relied on the following assumptions:
the term “Grab Forklift” is a term used to describe the counterbalance type forklift that is fitted with a special Bolozoni Auramo brand paper roll clamp and this clamp is not made by the forklift manufacturer Hyster;
the forklift had sufficient speed and momentum to cause significant damage in a relatively straight line over an approximate 10m distance;
the forklift was tested post incident to determine the stopping distance at full speed and the distance was approx. 7m;
the distance between the impacted bollard and the fire safety door is 9m.[15]
The following representatives of SafeWork NSW also gave evidence during the proceedings:
· Emma Afeaki;
· Corey Myers.
Submissions
The Applicant filed submissions in the Commission on 22 December 2023. The Respondent filed submissions in the Commission on 15 January 2024. Final written submissions were filed by the Applicant on 25 January 2024.
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from his employment.
Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent. I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.
Initial matters
Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
Section 394(2) requires an application to be made within 21 days after the dismissal took effect.
It is not disputed and I find that the Applicant was dismissed from his employment on 19 October 2023 and made the application on 26 October 2023. I am therefore satisfied that the application was made within the period required in subsection 394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
I have set out above when a person is protected from unfair dismissal.
Minimum employment period
It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.
It was not in dispute and I find that the Applicant was an employee, who commenced their employment with the Respondent on 10 December 2020 and was dismissed on 19 October 2023, a period in excess of 6 months.
I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
Application of an enterprise agreement
It was not in dispute and I find that, at the time of dismissal, the Opal Fibre Packaging National Enterprise Agreement 2022 applied to the Applicant’s employment.
Further, it was not in dispute and I find that, at the time of dismissal, the Applicant was earning $1,528.55 per week translating to an annual rate of earnings of $79,484.60. This is less than the high income threshold, which, for a dismissal taking effect on or after 1 July 2023, is $167,500.
I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis).
I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.
Was the dismissal a case of genuine redundancy?
Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
It was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.
I am therefore satisfied that the dismissal was not a case of genuine redundancy.
Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[16]
I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[17] and should not be “capricious, fanciful, spiteful or prejudiced.”[18] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[19]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[20] “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.”[21]
Submissions
By way of summary the Applicant initially submitted that there was no valid reason for the dismissal related to the Applicant’s capacity or conduct because:
the forklift was scheduled to have its 4000 hour service on 9 March 2023 and this service was required to be performed pursuant to the Hyster periodic maintenance manual however the Respondent did not service the forklift at that time as there was another forklift that had broken down and needed to be serviced;[22]
on 27 June 2023 the brakes of the forklift he was driving malfunctioned when he attempted to undertake a routine park of the forklift and there is no evidence that the Applicant was driving in a manner that was unsafe;[23]
the failure to service the forklift contributed to the brakes malfunctioning, thereby causing the incident.[24]
After considering the evidence of the witnesses during the hearing the Applicant’s position remained unchanged and the Applicant continued to submit that the incident arose because he pressed down on the brake and it went soft.[25] The Applicant submitted that there were numerous failures to properly service and inspect the forklift, the possibility that the brakes failed cannot be excluded and the possibility of brake failure is arguably likely.[26] In particular, the Applicant submitted that:
the service records indicate that ‘preventative maintenance within an agreed scope of work’ is narrower in scope than a 4000 hours service and a Jones v Dunkel inference is available to the Commission given that the person who is said to have conducted the service, Mr Pereira was not called as a witness;[27]
Mr Paraskevopoulos failed to test the brake fluid for contamination, which has a high likelihood of soft pedal (including the temporary malfunctioning of the brake);
the Commission cannot be satisfied that the brakes didn’t fail because this test was never done;
had the test been done, the Commission would be in a position to know whether brake failure was possible;
because the Commission does not know whether brake failure did or did not happen there cannot be a valid reason for dismissal.[28]
The Applicant submitted that the Commission would need to be satisfied to the Briginshaw standard of the serious allegation that he lied[29] and that given that the evidence demonstrates that the Applicant’s version of events is plausible and that the failure to service the forklift increased the risk of that plausibility, it can’t be found that the Applicant was a liar.[30]
The Applicant submitted that if the Commission did not accept that the brakes failed and found there was an accident, this does not give rise to a valid reason.[31] In particular the Applicant submitted that:
even if it could be established that the brakes did not malfunction and, instead the incident was caused by the Applicant’s error, the decision to terminate the Applicant is bereft of any valid reason as at worst, the incident was the result of a mistake which led to damage of plant and equipment;[32]
it’s possible that the Applicant’s foot could have slipped off the brake but this is unknown and it is not open on the evidence that the Applicant hit the accelerator because it’s possible that if you take your foot off the accelerator the forklift rolls and that could easily cause the damage;[33]
the damage could have been significantly mitigated had there been adequate barricades in place.[34]
The Applicant submitted that the evidence in the proceedings establishes that the Applicant was not driving erratically or speeding and it was noted that Mr Conway and Mr Ibrahim-Elgarhy considered the incident to be an accident.[35]
The Applicant also submitted that the Respondent’s purported concern as to the Applicant’s unwillingness to accept responsibility for the incident is artificial and if the Respondent was so concerned about this aspect they would not have required the Applicant to continue to work full-time (including regular overtime) for three and a half months after the incident.[36]
The Applicant submitted that the Respondent bears the evidentiary onus concerning the question of whether there was a valid reason for the dismissal.[37]
By way of summary the Respondent submitted that there was a valid reason for the Applicant’s dismissal because:
the Respondent has both common law and statutory obligations to ensure the safety of its employees and has a common law duty to ensure a safe workplace[38] and there are very serious risks associated with contravention of these obligations;[39]
SafeWork NSW has said that forklift operation is a high-risk activity which continues to cause workplace deaths and injuries and to increase awareness began a forklift safety compliance project in June 2021;[40]
the Applicant was driving a forklift and collided with an orange and blue cylindrical drum causing it to bend around a yellow bollard which was dislodged from the floor.[41]The forklift then collided with other items of plant and equipment (including the gas feed line to the boiler which led to the release of gas) before coming to its final stopping place after colliding with a roller door and fire safety door, causing the fire safety door to fly off its hinges/frame and land a few metres away. The Respondent submits those ‘actions were inherently dangerous’;[42]
in putting forward that the brakes failed, the Applicant lied and this was significant in that it showed his untrustworthiness and put forward a version of events that if true may have led to a prosecution of the Respondent under work health and safety legislation.[43]
The Respondent submitted that:
the Applicant’s position upon hearing the evidence appeared to be that there was a possibility of water in the brakes, which turned into gas and then condensed back into water, meaning that the brakes could initially work, would then fail, and would then continue to work again[44] and there was no evidence of this having occurred;[45]
the scenario put forward by the Applicant is contrary to the evidence before the Commission, including that the Adapt-A-Lift technician found no fault with the brakes;[46]
there is no evidence that Adapt-A-Lift did not do the tests it said it had done and witnesses gave evidence in relation to the work that had been done;[47]
there is no evidence of a failure to service the forklift which contributed to brake malfunction[48] and rather the evidence shows that the forklift was properly maintained and there was no fault in the brakes;[49]
while the Applicant submits the damage caused was the Respondent’s fault in failing to implement adequate barriers to protect the boiler and other plant, the Applicant does not explain how this would have reduced any risk to pedestrians caused by a forklift careering through the workplace.[50]
The Respondent submitted that the evidence establishes that had the Applicant taken his foot off the accelerator, the forklift would have slowed and stopped before travelling nine metres from the bollard and before hitting the fire door so hard that it knocked the fire door off its hinges.[51] The Respondent said that the forklift would have slowed further by hitting the bollard and gas main.[52]
The Respondent agreed that the Briginshaw standard applies[53] and having heard the evidence the Respondent submitted that at the heart of the matter was that the Applicant maintained that the brakes were defective in circumstances where there was no evidence that they were defective and a lot of evidence that they were not.[54] The Respondent submitted that the Applicant had provided no rational explanation as to why the brakes were defective.[55]
The Applicant submitted that if the incident was the cause of an accident on the part of the Applicant it would not constitute a valid reason. The Respondent submitted that this submission proceeds on the basis that misconduct involves something more than mere negligence, error of judgement or innocent mistake and does not take into account:
the many cases which show that gross negligence may be grounds for a finding of misconduct justifying summary dismissal;[56]
the statutory definition of serious misconduct set out in Regulation 1.07 of the Fair Work Regulations 2009 (Cth)(Regulations) which states that serious misconduct includes conduct that ‘causes serious and imminent risk to the health and safety of a person’. [57]
The Respondent submitted:
the Applicant does not contend that there was no serious and imminent risk to the health and safety of a person and the Commission must find that the Applicant committed an act of serious misconduct unless it finds that there was in fact a brake malfunction;[58]
in any event, the statutory test does not require the employer to prove misconduct. Rather, the statutory test is whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect of the safety and welfare of other employees);[59]
the Applicant’s conduct or capacity clearly had an adverse effect on the safety and welfare of other employees and a decision to terminate on that basis was clearly a valid reason unless the Commission found there was a brake malfunction (submitting that this finding would be contrary to the evidence);[60]
the Applicant is left with a difficult task in that he must prove there was in fact a brake malfunction, he cannot and as such the Commission should find that there was a valid reason.[61]
The Applicant submitted that the definition of serious misconduct set out in the Regulations includes both:
wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; and
conduct that causes serious and imminent risk to:
othe health and safety of a person; or
othe reputation, viability or profitability of the employer’s business. [62]
The Applicant submitted there is no evidence before the Commission of the Respondent engaging in wilful or deliberate behaviour inconsistent with the continuation of his employment and without more, an accident or innocent mistake does not rise to the level of misconduct.[63]
Applicant’s experience and role
The Applicant gave evidence that prior to and including working for the Respondent he has operated forklifts and grab forklifts for approximately 25 years.[64] The Applicant said the incident involving the forklift was the first time in his career that he had ever had a forklift accident.[65]
The Applicant was initially employed by the Respondent as a machine operator from around 10 December 2020 and from 13 October 2021 commenced training to work as a corrugator floater.[66] A corrugator floater is required to perform various tasks including driving forklifts and working on a cardboard stacker.[67]
During cross examination Mr Conway was asked whether, aside from the incident, the Applicant has always been a good worker to which he replied “he had been fine”.[68] Mr Conway also indicated that he was not aware of any incidents of the Applicant telling lies, that the Applicant had otherwise performed his work competently and that during the period between the time of the incident on 27 June 2023 and 11 October 2023, when the Applicant was suspended, he had no problems with the Applicant.[69]
Evidence regarding the type of forklift involved in the incident
The Applicant gave evidence that:
a grab forklift (the forklift involved in the incident) is different to a regular forklift in that, rather than having flat tines that can be loaded and unloaded, the grab of a grab forklift has a semi-circular shape which is typically used to pick up cylindrical reels of paper;
the unloaded weight of the forklift is 11.33 tonnes which is significantly heavier than a standard forklift[70]and it is approximately 3 metres long;[71]
there are three grab forklifts at the site where he worked, one of which was out of operation and had not been used for approximately four to six months prior to the time of the incident;
the reason for one of the grab forklifts being out of service was that it stopped working while the Applicant was in the middle of driving it;
as a result of a grab forklift being out of service the grab forklift involved in the incident had been used on the day, afternoon and night shift five days per week for the entire period the other forklift had been out of service;[72]
Forklift service history
Adapt-A-Lift leases forklifts to the Respondent and also services and maintains these forklifts, including the forklift the subject of the incident.[73]
Rod Harris is the National Operations Manager of Adapt-A-Lift Group Pty Ltd (Adapt-A-Lift), a position he held for two years at the time of filing his statement.[74] Mr Harris’ evidence was that:
he is a qualified technician which is a specialised mechanics trade;
his duties include overall responsibility for Adapt-A-Lift’s national product support teams, including services and operations and oversight of the technical activities of technicians via 12 direct reports under which approximately 120 employees sit;
he has held similar positions with other companies in the 26 years prior to commencing with Adapt-A-Lift.[75]
During cross examination, Mr Harris was asked when he last performed the role of a qualified technician to which he responded:
“As far as day-to-day operation, probably 10 years, but as far as identification and fault finding, on a daily basis.”[76]
Mr Harris said he recalled receiving a call from Adapt-A-Lift’s NSW State Supervisor informing him that a request had been received from the Respondent for a copy of the 12 month service history for the forklift and that he told the NSW State Supervisor to provide the requested material.[77] Mr Harris said he understood that initially, Adapt-A-Lift provided the Respondent with the service history for another forklift in the Respondent’s possession but that the service history for the correct forklift was provided to the Respondent on 10 October 2023.[78] A copy of the records of the forklift’s service history was attached to Mr Harris’ statement.[79]
Mr Harris said that a 4000 hour service was carried out on 9 March 2023 by an Adapt-A-Lift technician Merrik Peria.[80] A copy of Mr Peria’s record of this was attached to Mr Harris’ statement.[81]
A note on the copy of the service history states:
“they don’t want to give the machine, because the (sic) have a breakdown machine, when the other one is fixed, they can give the machine.”
Mr Harris said this note was recorded in Adapt-A-Lift’s system by Mr Peria on 2 February 2023 in connection with other maintenance work that was carried out on the forklift on this date and that the 4000 hour service was subsequently rebooked and carried out by Mr Peria on 9 March 2023.[82] Mr Harris pointed to the entry on the record of service history which states ‘4000 hour service’ and the record of Mr Peria which suggests that Mr Peria did make the note about the Respondent not wanting to provide the forklift involved in the incident on 2 February 2023 and that a 4000 hour service was carried out on 9 March 2023 with a note on that day stating:
“Carry out preventative maintenance service and safety inspection in the (sic) line with aggreed (sic) of (sic) scope of work.”
During cross examination it was put to Mr Harris that for a particular service (e.g. a 250 hour service, 500 hour service, 1000 hour service and 2000 service) the forklift manual has a prescribed list of things that need to be done and Mr Harris confirmed this was correct.[83] Mr Harris was taken to the entries in Mr Peria’s records referring to the ‘4000 hour service’ and ‘Carry out preventative maintenance service and safety inspection in the (sic) line with aggreed (sic) of (sic) scope of work’. It was put to Mr Harris that it would make no sense to carry out both of those services and it would be one or the other that would have been carried out to which Mr Harris responded that:
this was just the terminology Adapt-A-Lift uses;
the reference to a preventative maintenance service and safety inspection in line with the agreed scope of work was a reference to the 4000 hour service.[84]
It was put to Mr Harris that:
· the language suggests an agreed scope of work is narrower than a 4000 hour service because a 4000 hour service has a list of things that must be performed;
· the Respondent did not want to provide the machine for a 4000 hour service because it would have meant longer time out for the forklift;
· this resulted in preventative maintenance being carried out with an agreed scope of work which meant less time out off the floor.[85]
Mr Harris responded by saying that Adapt-A-Lift did not do the service on the first visit (in February) because the Respondent had another machine out of service but when Adapt-A-Lift returned on 9 March it did undertake the service.[86]
Mr Harris also gave evidence that:
prior to the incident the Respondent did not contact Adapt-A-Lift in relation to the forklift’s brakes;
on 12 May 2023 Adapt-A-Lift replaced the handbrake lever on the forklift which was physically broken but there were no issues with the mechanics of the forklift’s brakes.[87]
The Applicant challenged the adequacy of the forklift’s servicing and in his response dated 13 October 2023 to the allegations made against him (Second Response) stated:
“Within the 12 months recorded history, there has been no occasion in which brakes have been serviced as per the maintenance schedule”.
The expert engaged by the Respondent’s representative, Mr Brennan, was asked to address whether a 4000 hour service entails an inspection or service of the brakes. The Brennan Report states that the 4000 hour service entails service of the brakes and prior to this service (according to the Forklift Manual) technicians must “Perform the 8-hour, 250-hour, 500-hour, 1000-hour and 2000-hour checks…” all of which entail a service of the brakes.[88]
Mr Brennan was also asked by the Respondent’s representative to address the following question:
“Even if the brakes had not been serviced in the 12 months prior to the accident, on a scale of 1 to 10, 1 being “very unlikely” and 10 being “very likely”, how likely is it that this would cause the brake pedal to go “soft” and provide “no resistance”, causing the forklift to “keep moving”?”
In this regard the Brennan Report states that the likelihood is rated as a 1 in Mr Brennan’s opinion because, by way of summary:
with the forklift’s type of braking system, if the brakes failed he would not expect a “soft pedal”;
from the material before Mr Brennan he could see no evidence of oil being found on the floor around where the incident occurred and this is relevant because an oil trail would likely indicate failure of the brakes articulating system, hydraulics or wet brakes;
if leakage from the system had occurred, evidence of oil escape would have been found (and it was not);
if the brake master cylinder seals had failed they do not “unfail”, evidence of this would have been found at the Adapt-A-Lif inspection later that day and the issue would have re-emerged with subsequent use;
the Job Service Card states the brakes were working as per requirements;
the forklift is equipped with wet type brakes which means they run in a hydraulic fluid environment and are much less susceptible to wear.[89]
The Applicant’s Second Response also states:
“Page 39 of the heister periodic maintenance schedule states that every 500 hours or 6 months the master brake cylinder rod and pin is lubricated, there is no records (sic) of this occurring in the service records of Adapt a Lift”.
In providing his report, Mr Brennan was asked by the Respondent’s representative to address the following:
“(a) Does page 39 (or any other page) of the Manual state that every 500 hours or 6
months, the master brake cylinder rod and pin must be lubricated?
(b) Having regard for the Service History, when was the master brake cylinder rod
and pin last lubricated?
(c) As part of a “4000hr Service”, is the master brake cylinder rod and pin lubricated?
(d) Even if the master brake cylinder rod and pin was not lubricated every 500 hours or at least 6 months prior to the accident, on a scale of 1 to 10, 1 being “very unlikely” and 10 being “very likely”, how likely is it that this issue would cause the brake pedal to go “soft” and provide “no resistance”, causing the forklift to “keep moving”?
In this regard the Brennan Report states:
Page 16 of the Manual states that the master brake cylinder rod and pin must be lubricated at every 500 hour service.[90]
The Service History does not carry a sufficient breakdown (to show when the master brake cylinder rod and pin was last lubricated).[91]
Lubrication of the master brake cylinder rod and pin forms part of the 500 hour service and the 500 hour service forms part of the 4000 hour service.[92]
Should the lubrication not have occurred then the expected result would be eventual seizure of the movement thus causing hard pedal (not soft pedal, as the Applicant claims).
Even if the master brake cylinder rod and pin was not lubricated every 500 hours or at least 6 months prior to the accident, the likeliness that that this issue would cause the brake pedal to go “soft” and provide “no resistance”, causing the forklift to “keep moving” was rated as “1” in Mr Brennan’s opinion.[93]
The Applicant’s Second Response states:
“Brake oil change (master cylinder) is to occur every 2000 hours or annually. Once again, there are no records of this oil change being performed in the service records.”
In providing his report, Mr Brennan was asked by the Respondent’s representative to address the following:
“(a) Having regard for the Service History, is this statement correct?
(b) As part of a “4000hr Service”, is the brake oil changed?
(d) Even if the brake oil was not changed every 2000 hours or in the 12 months prior to the accident, on a scale of 1 to 10, 1 being “very unlikely” and 10 being “very likely”, how likely is it that this issue would cause the brake pedal to go “soft” and provide “no resistance”, causing the forklift to “keep moving”?”
In this regard the Brennan Report states:
Page 16 of the Manual provides “Brake Oil Master Cylinder. Check indicator light every 8 hour/daily, check the fluid at every 500 hour/6 monthly service and replace it at every 2000 hour/annual service”.
The Service History states a 4000-hour service was completed on 9 March 2023, so it is assumed (by Mr Brennan) that this did occur however, it is noticed that, according to the Service History, no brake oil has been charged for and page 16 of the Manual states that 0.35 litres Dexron® III from Sealed Container is required for the brake oil change.[94]
Even if the brake oil was not changed every 2000 hours or in the 12 months prior to the accident, the likelihood that this issue would cause the brake pedal to go “soft” and provide “no resistance”, causing the forklift to “keep moving” is rated as “1” in Mr Brennan’s opinion because:
oIt is possible that low brake oil levels or the introduction of water to the system may cause soft pedal however if this was the case, the indicator light on the dash would be lit.[95]
oLow oil level is very unlikely to occur without a leakage occurring or the indicator appearing on the dash and according to page 16 of the Manual this warning light must be inspected by the operator at the daily inspection.
oChecking the indicator light on the dash is an operator responsibility and in neither of the Applicant’s written responses or any of the other documents provided to Mr Brennan is it raised that the warning light was lit.
oThere was also no evidence of leakage.[96]
The Brennan Report states that if low brake fluid levels occur or water is introduced to the system the likelihood of soft pedal or non-existent pedal pressure is high however for the reasons outlined above, the likelihood of low brake fluid levels occurring or water introduction to the system occurring unnoticed is extremely low.[97]
The Applicant’s Second Response states:
“Wet brake drive axle oil change on page 81 of the Heister periodic service manual specifies this is performed every 1000 hours or 6 months. There is no record of this service being performed as per the Heister periodic service manual.”
In providing his report, Mr Brennan was asked by the Respondent’s representative to address the following:
“(a) Does page 81 (or any other page) of the Manual say that the wet brake drive axle
oil change must be performed every 1000 hours or 6 months?
(b) Having regard for the Service History, when was wet brake drive axle oil last
changed?
(c) As part of a “4000hr Service” is the wet brake drive axle oil changed?
(d) Even if the wet brake drive axle oil was not changed every 1000 hours or at least
6 months prior to the accident, on a scale of 1 to 10, 1 being “very unlikely” and 10 being “very likely”, how likely is it that this issue would cause the brake pedal to go “soft” and provide “no resistance”, causing the forklift to “keep moving”?”
In this regard the Brennan Report states:
Page 16 of the Manual states that the wet brake drive axle oil change must be performed every 1000 hours or 6 months[98] and as the 1000 hour service forms part of the 4000 hour service the wet brake drive axle oil is required to be changed.[99]
The Manual requires the change of oils in five separate chambers of the wet brake system and in this regard:
o25 litres in total are required;
o12 litres of HP GEAR OIL 80W/90 $L (PER LITRE) is shown in the Service History (reference 1473584, 24 February 2023). This is used on the Wet Brake Drive Axle Centre section and is a lower viscosity to the oils required in the left and right side wet brakes;
othere is insufficient information to know when or if the wet brake oils had been changed;
oit is generally accepted that where a service is designated then reference back to the Manual will provide the required level of detail and that detail does not need to be listed in the Job Card or Service History;[100]
In the case of the oil not being changed (if that was in fact the case), it is unlikely that a sudden or unexpected change in braking performance would occur as a result and any change in braking would be gradual.[101]
As the post incident inspection shows no sign of oil leakage or failure then it is unlikely that sudden brake failure would occur.[102]
In circumstances where the wet brake drive axle oil was not changed every 1000 hours or at least 6 months prior to the accident, Mr Brennan rated the likelihood of soft pedal or non-existent pedal pressure as “1 or 2” in his opinion.[103]
The Applicant’s Second Response states:
“Brake system accumulator checks on page 99 of Heister periodic service manual. This check is done every 2000 hours or annually. There are clear instructions in the manual outlining what pressures are required for the system. There is no record of this check being performed as per the manual in the Adat a Lift service records.”
In providing his report, Mr Brennan was asked by the Respondent’s representative to address the following:
“(a) Does page 99 (or any other page) of the Manual say that the brake system accumulator check must be done every 2000 hours or annually?
(b) Having regard for the Service History, when was the brake system accumulator last checked?
(c) As part of a “4000hr Service” is the brake system accumulator checked?
(e) Even if the brake system accumulator was not checked every 2000 hours or at least 12 months prior to the accident, on a scale of 1 to 10, 1 being “very unlikely” and 10 being “very likely”, how likely is it that this issue would cause the brake pedal to go “soft” and provide “no resistance”, causing the forklift to “keep moving”?”
In this regard the Brennan report indicates:
Page 16 of the Manual suggests that the 2000 hour or 12 month service requires that the service “check pressure only”.[104]
There is insufficient information (in the service history) to know when the pressure was last checked.[105]
As the 2000 hour service forms part of the 4000 hour service the brake system accumulator would need to be checked as a part of this service.[106]
In the event the accumulator was not serviced (if that was in fact the case) it is unlikely that a sudden or unexpected change in braking performance would occur and as the post-incident inspection showed no sign of failure it is unlikely that sudden brake failure would occur (with Mr Brennan emphasising “sudden or unexpected change in braking”).
For the above reasons the likelihood was rated as 1 or 2. [107]
The Respondent’s representative asked Mr Brennan to provide an opinion as to whether the Service History was deficient in any way in relation to the service and maintenance of the forklift’s brakes in relation to which the Brennan Report states:
“In reviewing the Adapt-A-Lift service history provided, it is not possible to state whether it is "deficient" or "not deficient". It is industry standard not to list the full contents of any particular periodic service, but to rely on the Manual to provide such detail. I would expect to see parts and fluids listed that would match up with that specified in the Manual. There does appear to be some anomalies in the Service History provided in this regard. i.e. certain parts or lubricants required by the schedule set out in the periodic maintenance table in the Manual are not listed in the Service History. However, that does not directly mean that this was not completed. Just that they are not listed”.[108]
During cross examination it was put to Mr Brennan that if the list of items that must be done as a part of a 4000 hour service were not performed this would increase the risk of brake failure and Mr Brennan agreed.[109] It was then put to Mr Brennan that there were a number of things he could not identify in the forklift history as being completed because they did not appear in the history including:
whether the master brakes cylinder and rod were lubricated, to which Mr Brennan agreed;
whether the brake oil change had been carried out, to which Mr Brennan agreed;
whether the wet brake axle oil change had been carried out, to which Mr Brennan indicated there was no charge for this in the service history;
whether the brake system accumulator had been serviced, to which Mr Brennan indicated that it had not been specifically listed in the service history.[110]
It was put to Mr Brennan that if it was the case that none of the above had been carried out, the cumulative effect would significantly increase the risk of brake failure, including a temporary failure, and he agreed.[111]
Employee evidence concerning the forklift incident
An incident report was completed by the Respondent following the incident and was provided to the Applicant during the investigation. The Applicant attached a copy of this incident report to his statement[112] (Respondent’s Incident Report).
The Applicant’s normal starting time was 6.50am and as a floater he could be required in different areas of the business.[113] The Applicant provided the following account of events concerning the incident:
· on 27 June 2023 he either looked at the whiteboard to identify his tasks for the day or was directed to operate a grab forklift at the ‘wet end’ of the corrugator, which is where paper is first loaded into the corrugator machine;[114]
· prior to operating the forklift he checked to make sure all the correct reels were set up from the night before which took approximately 20 minutes;[115]
· he then transported the reels on the ground next to the corrugator machine so the machine operators could run the paper through the machine to create cardboard;[116]
· after approximately 20 minutes of operating the grab forklift he picked up a ‘butt reel’ (being a reel containing what is left over from a full reel which can be used for another job) at the wet end of the corrugator[117] and close to the yellow trolley in the top left hand corner of page 20 of the Respondent’s Incident Report;[118]
· at this time the forklift was facing towards the orange and blue drum pictured at page 20 of the Respondent’s Incident Report;[119]
· he rotated the clamp, which was holding the butt reel approximately one metre in the air, from vertical to horizontal so he could place the butt reel on the ground with it facing the correct way for insertion into the corrugator by the machine operator;[120]
· as he rotated the clamp a red metal plate fell from the clamp itself to the ground;[121]
· he immediately put the butt reel back down on the ground for safety,[122] turned off the grab forklift and went to inspect the plate with Mr Williams;[123]
· the forklift was parked approximately two to three metres from the yellow trolley in the top left hand corner of page 20 of the Respondent’s Incident Report;[124]
· he had a conversation with Mr Williams and they agreed that they should notify the supervisor that the plate had fallen off the forklift and that Adapt-A-Lift (the company contracted by the Respondent to service its forklifts) should be contacted to fix the forklift;[125]
· he got back in the forklift, reversed the forklift for approximately one or two metres to put the butt reel down safely and out of the way and then went to park the forklift near the boiler;[126]
· as he was driving he pushed down on the brakes approximately two metres before where he had intended to park the forklift and when he pressed the brake it went all the way to the floor and had no resistance;[127]
· the forklift continued to move forward, he was aware that the boiler was on his left and that the forklift was going to hit something, so he intentionally steered the forklift as straight as possible to ensure he went between the boiler and starch kitchen to minimise damage;[128]
· as he steered the forklift straight, it collided with the orange and blue cylinder causing it to bend around the yellow bollard shown at pages 20 and 21 of the Respondent’s Incident Report;
· the forklift then continued straight before eventually colliding with the roller door, among other items of plant and equipment (including the gas feed line to the boiler which led to the release of gas), and stopping;[129]
· the time between the Applicant pressing on the brakes to when the forklift collided with the roller door was a few seconds;[130]
· he could not be certain as to whether the engine was still running or whether he turned the ignition off when he got out of the forklift as he was in shock;[131]
· he estimated the distance between where the forklift was initially parked when the plate fell off the clamp to the roller door to be 15 to 20 metres;[132]
· he estimated the distance between where he pressed the brakes to the roller door to be eight to 10 metres.[133]
The Applicant said:
he did not press the accelerator and that if he did the forklift would have sped up;
the forklift continued but decreased in speed, particularly after colliding with plant and equipment;
he was not driving anywhere near full speed.[134]
The Applicant said after the crash he got out of the forklift and Mr Deo was near him and said ‘are you ok?’.[135] The Applicant recalled having a conversation with Mr Williams and Mr Deo generally discussing that the brakes did not work but could not recall exactly when.[136]
The Applicant underwent a drug and alcohol test which returned a negative result.[137]The Applicant used a cab charge to go to hospital as he had a minor injury to his shoulder and was told he could return to work the next day.[138]
Mr Williams is employed by the Respondent as a ‘floater’ and is also an elected Health and Safety Representative, a role he had held for approximately 19 years.[139] Mr Williams was working on 27 June 2023, the day of the incident. Mr Williams provided the following account of events concerning the incident:
just before 7.30am on 27 June 2023 he was working on module facer 1 (MF1) with 10 other people including Feng Li and Rajiv Deo;[140]
he saw that the Applicant was operating a grab forklift and had picked up a butt reel;
he saw that a red plate fell from the forklift’s clamp;[141]
the Applicant placed the butt reel back down on the ground and stopped the forklift and Mr Williams was standing approximately five metres away from the forklift at this point;[142]
he immediately went over to the forklift with Son Thatch to see what had happened and recalled that Mr Deo was also close by;[143]
he told the Applicant that they should move the red metal plate to the side and call the control room to advise them that the plate had fallen off the forklift;[144]
he picked up the red metal plate and lent it against a rubbish bin at MF1;[145]
at this stage the forklift was parked in the direction of the blue and orange drum and parked within a couple of metres of the yellow trolley (depicted in the second photo on page 20 of the Respondent’s Incident Report);[146]
he then continued to work on the MF1;[147]
a couple of minutes later he saw the Applicant get back in the grab forklift and assumed he was going to park it in the usual area near the boiler given the plate had fallen off its clamp;[148]
he then watched the Applicant drive the forklift and it was not being driven fast or erratically.[149] During cross examination Mr Williams confirmed that when he said the forklift wasn’t being driven fast he was saying that it was not being driven at more than 10 kilometres per hour;[150]
he saw the forklift collide with the orange and blue drum before continuing between the boiler and the starch kitchen and eventually hitting the roller door where it stopped;[151]
the distance between where the forklift was originally when the plate dropped from the clamp up to the roller door is approximately 15 metres;[152]
whilst the Applicant was still in the grab forklift he turned around with his arms out and looked stunned by what happened;[153]
he went straight onto the two-way radio, said “emergency, emergency” and told the control room to stop the corrugator;[154]
shortly after making this call over the radio there was a strong smell of gas and the fire alarm went off;[155]
Mr Deo and Ahmad Ibrahim Elgarhy (Mr Elgarhy) later told him that Mr Deo had turned off the gas valve;[156]
later on that same day the Applicant told him that the brakes on the forklift did not work.[157]
During cross examination Mr Williams was asked a number of questions in the context of his role as a health and safety representative. Mr Williams was asked whether, after hearing the Applicant’s account that the brakes on the forklift did not work, he told management that the forklift should not be moved to which he indicated that when the fire alarm went off, everyone evacuated to the car park and the site of the incident was preserved.[158]
Mr Williams was asked whether at that stage he told anybody that he had been told that the brakes did not work to which he responded that he told Mr Conway.[159]
Mr Deo is employed by the Respondent as a ‘grab driver’ and was also working on MF1 at the time of incident.[160] Mr Deo’s evidence was that:
at approximately 7.30am on 27 June 2023 he was working at MF1, heard a loud noise and was standing approximately 10 metres away from the grab forklift when this occurred;[161]
he could not initially see when he looked over as there were paper rolls obstructing his view;[162]
he then walked towards the grab forklift to see what happened and noticed Mr Williams and the Applicant;[163]
he saw that the red guard plate from the forklift’s clamp was leaning against the nearby rubbish bin;[164]
he inspected the forklift to see where it had fallen off and how it would be put back into place;[165]
referring to the second photo on page 20 of the Respondent’s Incident Report, the forklift was parked near the yellow trolley on the left-hand side of the picture;[166]
he intended to use the two-way radio to call Mr Conway, the Day Shift Manager, to advise him that the plate had come off the forklift and needed to be repaired however before he could do so he heard a loud bang and instinctively yelled out “woah”;[167]
he turned around and saw that the orange and blue drum had been impacted and saw the forklift slowly rolling towards the roller door before it stopped;[168]
at most, he saw the forklift rolling for a second or two after it had already hit the drum;[169]
the approximate distance between where the forklift was initially parked when the plate had fallen and once the forklift had rolled to a stop was approximately 15 metres;[170]
once the forklift had stopped he ran over to see if the Applicant was ok;[171]
he then went through the starch kitchen and went to see the Applicant and asked if he was ok;[172]
the Applicant looked at him but did not say anything and looked very shocked;[173]
he immediately heard a loud whistling sound and realised gas was leaking;[174]
he went outside the fire door next to the roller door looking for a valve to turn the gas off;[175]
he then saw Mr Ibrahim-Elgarhy and informed him of the incident and that the gas needed to be turned off and then turned off the gas at the roadside meter.[176]
Mr Li is employed by the Respondent as a Machine Operator and was also working on MF1 on the day of the incident.[177] Mr Li’s evidence was that:
in the morning of 27 June 2023 he was working at reel stand 10 at MF1 when he heard a bang and turned around and saw the Applicant getting out of the grab forklift;[178]
he then saw Mr Deo, Mr Williams and the Applicant investigating what had happened.[179] Referring to the second photo on page 20 of the Respondent’s Incident Report, Mr Li said the forklift was parked near the yellow trolley and that he was standing approximately 15 metres away from the forklift at the time;[180]
he walked up close to the forklift, approximately three or four metres away, and noticed something on the floor and at this stage the forklift was facing slightly to the right of the blue and orange drum contained in the second picture on page 20 of the Respondent’s Incident Report;[181]
he assumed something had fallen off the grab forklift and as Mr Deo, Mr Williams and the Applicant were dealing with the issue he returned to working on the machine;[182]
about a minute later he finished working on the reel, was picking up rubbish off the floor, turned around and saw the Applicant in the forklift for about one or two seconds before it collided with the roller door and came to a stop;[183]
the distance between where the forklift was originally parked when the plate fell off to the roller door was approximately 20 metres;[184]
he saw the Applicant get off the forklift, he walked over to see how the Applicant was and noticed that the Applicant was shaken by the incident and that Mr Deo and Mr Williams were standing nearby;[185]
he asked the Applicant “are you okay” but cannot recall if he responded or not;[186]
shortly after the incident all employees were directed to leave the site and go to the emergency point.[187]
Mr Li said he was not sure how fast the forklift was going, he only saw the last one or two seconds of the Applicant on the forklift before it stopped and he did not see the forklift impact the blue and orange drum in the photo.[188]
Mr Wilson was working on the morning of the incident, heard a radio call from Mr Williams at approximately 7.38am indicating an emergency and that the forklift had hit the boiler, heard the site’s alarms sound at 7.40am, called the fire brigade and started evacuating the site with the evacuation completed by approximately 7.45am.[189] Mr Wilson’s evidence was that after employees were able to return to the site, at approximately 8.18am he went to look at the location of the incident and upon doing so observed:
there was a ruptured gas pipe next to the boiler, electrical equipment such as computers and monitors close by and the potential for a large explosion;
the forklift had travelled between the boiler and the starch kitchen and this area is not much wider that the forklift itself;
a 40 gallon drum had been crushed against a bollard;
the bollard was partially dislodged from where it was bolstered to the floor of the factory and was also bent at its foot;
a gas pipe attached to the boiler was ruptured;
the fire door beyond the boiler and starch kitchen was knocked completely off its hinges and had landed a few metres from the doorway;
the roller door immediately to the left of the fire door was partially dislodged and dented, having been pushed outwards by the grab forklift.[190]
Mr Wilson arranged for the Applicant to undergo drug and alcohol testing and when he met him at around 9.15 am for this purpose observed that the Applicant appeared to be very shaken and in shock.[191] The testing identified that the Applicant did not have any drugs or alcohol in his system.[192]
Evidence concerning events following the incident – the Respondent’s investigation – interviews with employee witnesses
Alastair Conway is the Respondent’s Day Shift Manager.[193] Mr Conway did not see the incident but conducted preliminary interviews with employees who were present during the incident, including the Applicant.[194]
Mr Williams gave evidence that later on the day of the incident, at approximately 10.30am, he attended a meeting with Mr Conway and Mr Dixon and explained what he had heard and seen and Mr Conway made notes of that meeting.[195] This is consistent with the evidence of Mr Conway.[196]A copy of Mr Conway’s notes of that meeting were attached to his statement[197] and indicate that during that meeting Mr Williams said:
he was working at MF1, observed the forklift pick up a butt reel and then a red plate fell from the clamp;
the Applicant put the butt (reel) down and stopped the forklift;
he and Mr Thatch approached the forklift;
he picked up the plate and lent it against a rubbish bin at MF1;
2 to 5 minutes later the Applicant went to park the forklift by the reels opposite MF1;
the forklift didn’t stop and came to rest in front of the red exit door past the boiler and starch kitchen;
the Applicant looked back with arms outstretched as if in a very surprised state as if saying “what happened there?”
Mr Williams went to the two-way radio and called “emergency, emergency, stop the corrugator”;
there was a strong gas smell followed a couple of minutes later by the fire alarm going off.[198]
The account recorded by Mr Conway does not contradict Mr Williams’ account of the incident as set out in his witness statement.
Mr Li’s evidence was that at approximately 9am on the day of the incident he attended a meeting with Mr Conway to provide his account of what he saw, this conversation lasted approximately 5-10 minutes and Mr Conway briefly summarised the conversation in his notes.[199] This is consistent with the evidence of Mr Conway.[200]A copy of Mr Conway’s notes of that meeting were attached to his statement[201] and indicate that during that meeting Mr Li said:
he was working at MF1, heard a bang, looked up and the forklift had stopped;
the Applicant stepped off the forklift and Mr Li saw Mr Thatch and Mr Williams at the forklift;
approximately 1 or 2 minutes later he observed the forklift driving between the boiler and starch kitchen towards the red exit door.
The account recorded by Mr Conway does not contradict Mr Li’s account of the incident as set out in his witness statement.
Mr Deo’s evidence was that at approximately 11.25am on the day of the incident he attended a meeting with Mr Conway and explained what he had heard and seen and Mr Conway took notes during this meeting.[202] This is consistent with the evidence of Mr Conway.[203]A copy of Mr Conway’s notes of that meeting were attached to his statement[204] and indicate that during that meeting Mr Deo said:
he was working at MF1 and heard a loud noise which was a red plate falling from the grab clamp;
he went to take a look and saw the metal plate against a rubbish bin;
he looked at the grab to see how/why the plate had fallen from the clamp before moving back to MF1 and at this time the forklift was parked more or less pointing towards MF1;
he then heard a bang which was the forklift hitting a large chemical defoamer drum and he looked up to see the forklift slowly moving forward between the boiler and starch kitchen and then stopping;
he went to check on the Applicant by walking through the starch kitchen area and asked the Applicant if he was ok;
he realised there was a gas leak and walked through the exit doorway looking for a gas stop valve;
Mr Ibrahim-Elgarhy was outside the exit doorway and Mr Deo informed him of the accident and that the gas had to be turned off;
he then turned the gas off at the roadside gas meter.[205]
The account recorded by Mr Conway does not contradict Mr Deo’s account of the incident as set out in his witness statement.
Evidence concerning events following the incident – the Respondent’s investigation - Adapt-A-Lift
Mr Conway called Adapt-A-Lift on the day of the incident.[206] Mr Conway said in his written statement that he was aware that the Applicant was attributing the incident to the forklift’s brakes and when he called Adapt-A-Lift explained that the forklift had been involved in a significant incident and needed to be inspected.[207] However during cross examination Mr Conway indicated he could not recall whether he explained to the person on the phone that the brakes had allegedly failed.[208] Mr Conway gave evidence that:
a technician arrived on site and waited in the yard until SafeWork confirmed that the site did not need to be preserved;[209]
he spoke briefly to the technician before he removed the forklift from the site to carry out his inspection and cannot recall what was discussed at that time.[210]During cross examination Mr Conway said he believed he said to the technician “we believe there may be a brake issue” although could not recall the exact details of the conversation;[211]
after the technician finished his inspection he had a brief discussion with him and recalled the technician saying something along the lines of:
“Look, there’s nothing wrong with the brakes. The brakes are fine”;[212]
when the assessment was complete he signed the service report on the technician’s iPad but was not given a copy.[213]
Derek Sporl said that he also met the technician, he and Mr Conway watched as the technician removed the forklift from the impact site which required use of both the brakes and accelerator and the technician then said words to the effect of:
“There’s nothing wrong with the brakes”.[214]
Mr Sporl said he then instructed the technician to conduct a full inspection of the forklift in the service bay and observed the technician driving the forklift out of the building towards the service area, which is in a different location on site, while he stayed at the immediate incident site to gather evidence.[215] Mr Sporl said that before the technician left to conduct the full inspection he explained to Mr Sporl that even if the forklift loses power (or cuts out) deceleration will occur at the same rate as if the forklift was powered and that he understood this to mean that if there was a total brake failure or the forklift cut out it would decelerate (or slow down) at the same speed as if it were powered.[216]
Mr Williams said:
he was aware that the Respondent preserved the incident site and contacted SafeWork to notify it of the incident on the same day;[217]
the Respondent was released from preserving the site on the morning of the incident;[218]
he is aware that at around 10.30am an Adapt-A-Life technician came to site to inspect the forklift involved in the incident.[219] Mr Williams attached a copy of the service job cards completed by Adapt-A-Lift to his statement indicating that Adapt-A-Lift carried out an inspection and provided a diagnosis of the brake system on 27 June 2023.[220]
Tom Paraskevopoulos is employed by Adapt-A Lift as a Service Technician and at the time of filing his statement on 18 January 2024 had held this position for one year.[221] Mr Paraskevopoulos’ evidence was that:
in his position as Service Technician his duties include, among other things, the repair of forklifts of various makes and models that have broken down, are not going or have some kind of defect or issue;[222]
he has held similar positions with other companies for around 27 years;[223]
he is a qualified auto-electrician and motor-mechanic;[224]
he holds ‘tickets’ in electric vehicles, hydraulics, welding and air conditioning.[225]
Mr Paraskevopoulos said that on 27 June 2023 his Service Controller allocated him a job at the Respondent’s Revesby site involving an inspection of ‘unit H12149 – Hyster forklift model S155FT’, including its brakes.[226] Mr Paraskevopoulos said he did not speak to anyone who works for the Respondent prior to arriving on site.[227] Mr Paraskevopoulos met Mr Conway and Mr Sporl on site and said he waited a ‘considerable period of time’ before he was told that SafeWork NSW was not coming on that day and he could remove the forklift from the crash area and undertake the inspection.[228]
Mr Paraskevopoulos said that Mr Conway and Mr Sporl escorted him to the forklift which was located in the factory where the paper rolls were stored and when he reached the forklift he:
took photos of it while stationary before the inspection;
removed the forklift from the crash area which required the use of the forklift’s brakes and accelerator;
had a brief discussion with Mr Conway and Mr Sporl, after which he drove the forklift to the service area where he completed a full assessment of it.[229]
Mr Paraskevopoulos said his full assessment of the forklift involved:
carrying out a visual inspection of the unit and in doing so ‘nothing unusual jumped out’ at him;
removing the floor plate to ensure there were no oil leaks and in doing so found there were not;
making sure that none of the lines were cut or broken, as this can cause the brakes to fail, with him finding they were not;
checking the operation of the handbrake with him finding that it was operational;
checking the operation of the throttle with him finding that ‘it tested fine’; and
inspecting the brake system and in doing so he identified that the fluid and all adjustments were correct as per the specifications.[230] In relation to this inspection of the brake system Mr Paraskevopoulos confirmed that this was confined to a ‘visual’ and ‘measured’ inspection.[231]
Mr Paraskevopoulos’ evidence was that:
the forklift has a wet brake system which means that it is boosted through a transmission, hydraulically, and a clutch and metal plate, which sit in oil;
when the brake is applied the forklift uses boosted pressure, which pushes into the clutch;
because the braking system is a wet brake system, there is minimum wear and tear on the parts of the brake;
his visual inspection of the brakes did not identify any wear;
he tested the brake capacity by sitting in the forklift, bringing it up to maximum speed and applying the brakes;
if the braking capacity is working as it should, the forklift will stop within 2 metres of the brake being applied;
[243] Statement of Derek Sporl dated 12 January 2024 at [17].
[244] Statement of Derek Sporl dated 12 January 2024 at [18].
[245] Transcript of proceedings, 29 January 2023 at PN949.
[246] Statement of Derek Sporl dated 12 January 2024 at [19] – [20].
[247] Statement of Glenn Wilson dated 15 January 2024 at [38].
[248] Statement of Glenn Wilson dated 15 January 2024 at [40].
[249] Statement of Derek Sporl dated 12 January 2024 at [8], DS1.
[250] Statement of Derek Sporl dated 12 January 2024 at [10].
[251] Statement of Derek Sporl dated 12 January 2024 at [32].
[252] Statement of Derek Sporl dated 12 January 2024 at [33].
[253] Transcript of Proceedings, 29 January 2024 at PNs 973 - 985.
[254] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [50].
[255] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [51].
[256] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [52].
[257] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [53].
[258] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [53].
[259] Transcript of proceedings, 30 January 2024 at PN1818.
[260] Transcript of proceedings, 30 January 2024 at PN1821.
[261] Transcript of proceedings, 30 January 2024 at PN1822.
[262] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [54] – [55].
[263] Transcript of Proceedings, 30 January 2024 at PN 1832 - 1836.
[264] Transcript of Proceedings 29 January 2024 at PN 988.
[265] Transcript of Proceedings 29 January 2024 at PNs 983 -995.
[266] Transcript of proceedings, 30 January 2024 at PN1227.
[267] Transcript of Proceedings 29 January 2024 at PN 432.
[268] Transcript of Proceedings 29 January 2024 at PN 433.
[269] Transcript of Proceedings 29 January 2024 at PNs 882 - 886.
[270] Statement of Rob Harris dated 11 January 2024 at [31].
[271] Statement of Glenn Wilson dated 15 January 2024 at [42].
[272] Statement of Glenn Wilson dated 15 January 2024 at [43].
[273] Statement of Adam Williams dated 22 December 2023 at [15].
[274] Statement of Adam Williams dated 22 December 2023 at AW-4.
[275] Statement of Adam Williams dated 22 December 2023 at [12].
[276] Statement of Adam Williams dated 22 December 2023 at AW-1.
[277] Statement of Adam Williams dated 22 December 2023 at [12].
[278] Statement of Adam Williams dated 22 December 2023 at AW-6.
[279] Statement of Adam Williams dated 22 December 2023 at AW-3.
[280] Statement of Rob Harris dated 11 January 2024 at [24], Statement of Adam Williams dated 22 December 2023 at AW-6.
[281] Statement of Rob Harris dated 11 January 2024 at [25], RH3.
[282] Statement of Adam Williams dated 22 December 2023 at [16].
[283] Statement of Adam Williams dated 22 December 2023 at AW-5.
[284] Transcript of Proceedings, 29 January 2024 at PNs 1029 – 1031, 1034
[285] Transcript of Proceedings, 29 January 2024 at PN 1040.
[286] Transcript of Proceedings, 29 January 2024 at PN 1033.
[287] Transcript of Proceedings, 29 January 2024 at PN 1066.
[288] Witness Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2023, AIE1.
[289] Transcript of Proceedings, 30 January 2024 at PNs 1744 - 1752.
[290] Transcript of Proceedings, 29 January 2024 at PN 1035.
[291] Transcript of Proceedings, 29 January 2024 at PN 1036.
[292] Transcript of Proceedings, 29 January 2024 at PN 1037.
[293] Transcript of Proceedings, 29 January 2024 at PN 1038.
[294] Transcript of Proceedings, 29 January 2024 at PNs 1041 – 1047.
[295] Transcript of Proceedings, 29 January 2024 at PN 1068.
[296] Transcript of Proceedings, 29 January 2024 at PNs 1069 - 1070.
[297] Transcript of Proceedings, 29 January 2024 at PNs 1084 - 1086
[298] Transcript of Proceedings, 29 January 2024 at PN 1088.
[299] Statement of Glenn Wilson dated 15 January 2024 at [45], GW5.
[300] Statement of Glenn Wilson dated 15 January 2024 at [46].
[301] Transcript of Proceedings, 29 January 2024 at PNs 1048 - 1049.
[302] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [34] – [35].
[303] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [36], AIE6.
[304] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [38].
[305] Statement of Ahmet Sayan dated 22 December 2023 at [1].
[306] Statement of Ahmet Sayan dated 22 December 2023 at [1].
[307] Statement of Ahmet Sayan dated 22 December 2023 at [3].
[308] Statement of Ahmet Sayan dated 22 December 2023 at [4].
[309] Statement of Ahmet Sayan dated 22 December 2023, AS-1.
[310] Statement of Applicant dated 22 December 2023 at [27], Statement of Alastair Conway dated 15 January 2024 at [22].
[311] Statement of Applicant dated 22 December 2023 at [27], Statement of Alastair Conway dated 15 January 2024 at AC4.
[312] Statement of Ahmet Sayan dated 22 December 2023, AS-3.
[313] Statement of Applicant dated 22 December 2023 at [28].
[314] Statement of Applicant dated 22 December 2023 at [29].
[315] Statement of Alastair Conway dated 15 January 2024 at [24].
[316] Statement of Alastair Conway dated 15 January 2024 at [25].
[317] Statement of Alastair Conway dated 15 January 2024 at [25].
[318] Statement of Alastair Conway dated 15 January 2024 at [28] – [29].
[319] Statement of Ahmet Sayan dated 22 December 2023 at [7].
[320] Statement of Ahmet Sayan dated 22 December 2023 at [7].
[321] Statement of Ahmet Sayan dated 22 December 2023 at 10, AS-7.
[322] Statement of Alastair Conway dated 15 January 2024, AC5.
[323] Statement of Ahmet Sayan dated 22 December 2023 at [10].
[324] Statement of Ahmet Sayan dated 22 December 2023 at [10].
[325] Statement of Ahmet Sayan dated 22 December 2023 at [11].
[326] Statement of Ahmet Sayan dated 22 December 2023 at [12], Statement of Alastair Conway dated 15 January 2024 at [33].
[327] Statement of Alastair Conway dated 15 January 2024 at [34] – [35].
[328] Statement of Alastair Conway dated 15 January 2024 at [36].
[329] Statement of Alastair Conway dated 15 January 2024 at [28].
[330] Statement of Alastair Conway dated 15 January 2024 at [28].
[331] Statement of Ahmet Sayan dated 22 December 2023 at [13].
[332] Statement of Ahmet Sayan dated 22 December 2023 at [14].
[333] Statement of Ahmet Sayan dated 22 December 2023 at [16].
[334] Transcript of proceedings, 30 January 2024, PN 1842.
[335] Statement of Ahmet Sayan dated 22 December 2023 at [17].
[336] Statement of Ahmet Sayan dated 22 December 2023 at [19].
[337] Statement of Ahmet Sayan dated 22 December 2023 at [20].
[338] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [41].
[339] Transcript of proceedings, 30 January 2023, PNs 1799-1800.
[340] Transcript of proceedings, 30 January 2023, PNs 1799-1801.
[341] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [6], [19].
[342] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [6] – [7].
[343] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [49].
[344] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [69].
[345] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [23].
[346] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [69].
[347] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [70] – [71].
[348] Transcript of proceedings 30 January 2024, PNs 1848 – 1858.
[349] Brennan Report, Part 9.26.
[350] Brennan Report, Part 9.27.
[351] Brennan Report, Part 9.28.
[352] Brennan Report, Part 9.37.
[353] Brennan Report, Part 9.38.
[354] Brennan Report, Part 9.39.
[355] Brennan Report, Part 9.40.
[356] Brennan Report, Part 9.41.
[357] Brennan Report, Part 9.42.
[358] Brennan Report, Part 9.43.
[359] Transcript of Proceedings, 30 January 2024, PNs1541 - 1544.
[360] Brennan Report, Part 9.44.
[361] Brennan Report, Part 9.45.
[362] Brennan Report, Parts 10.2 – 10.3.
[363] Brennan Report, Part 10.19.
[364] Brennan Report, Part 10.19.
[365] Brennan Report, Parts 10.8 – 10.18.
[366] Brennan Report, Part 10.17.
[367] Transcript of proceedings, 30 January 2024 at PNs 1232 - 1236.
[368] Transcript of proceedings, 30 January 2024 at PNs 1244 - 1250.
[369] Transcript of proceedings, 30 January 2024 at PNs 1251 - 1252.
[370] Transcript of proceedings, 30 January 2024 at PN 1255.
[371] Transcript of proceedings, 30 January 2024 at PNs1256.
[372] Transcript of proceedings, 30 January 2024 at PNs1259.
[373] Transcript of proceedings, 30 January 2024 at PNs1285 - 1288.
[374] Transcript of proceedings, 30 January 2024 at PNs 1260 - 1265.
[375] Statement of Tom Paraskevopoulos at [15].
[376] Transcript of proceedings, 30 January 2024 at PNs 1270 - 1278.
[377] Transcript of proceedings, 30 January 2024 at PN 1289
[378] Statement of Rod Harris dated 11 January 204 at [33].
[379] Transcript of Proceedings, 30 January 2024 at PNs1451 – 1452.
[380] Transcript of Proceedings, 30 January 2024 at 1462, Brennan Report, Part 9.14.
[381] Transcript of Proceedings, 30 January 2024 at PNs1466 – 1473.
[382] Transcript of Proceedings, 30 January 2024 at PNs1583 – 1584.
[383] Transcript of Proceedings, 30 January 2024 at PN1584.
[384]Transcript of Proceedings, 30 January 2024 at PN1477, Brennan Report, part 9.14(a).
[385] Transcript of Proceedings, 30 January 2024 at PNs1478 -1479.
[386] Transcript of Proceedings, 30 January 2024 at PNs 1484 - 1486.
[387] Transcript of Proceedings, 30 January 2024 at PN 1488.
[388] Transcript of Proceedings, 30 January 2024 at PN 1496.
[389] Edwards v Justice Giudice [1999] FCA 1836, [7].
[390] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[391] Respondent’s Outline of Argument filed 15 January 2024 at [3] – [7], [11].
[392] Respondent’s Outline of Argument filed 15 January 2024 at [13].
[393] Statement of Adam Williams dated 22 December 2023 at [6].
[394] Statement of Glenn Wilson dated 15 January 2024 at [24].
[395] Respondent’s Outline of Argument filed 15 January 2024 at [25] with reference to Rankin v Marine Power International Pty Ltd 107 IR 117 at [330] – [340].
[396] Respondent’s Outline of Argument filed 15 January 2024 at [26].
[397] Statement of Derek Sporl dated 12 January 2024 at [32].
[398] [1938] HCA 34, (1938) 60 CLR 336.
[399] Briginshaw v Briginshaw [1938] HCA 34, (1938) 60 CLR 336.
[400] Briginshaw v Briginshaw [1938] HCA 34, (1938) 60 CLR 336 at pp 362-3.
[401] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66, (1992) 67 ALJR 170; cited inGuneyi v Melbourne Health T/A Royal Melbourne Hospital [2012] FWA 10270 at [14]. See also Budd v Dampier Salt Limited [2007] AIRCFB 797 at [15].
[402] Statement of Derek Sporl dated 12 January 2024 at [8], DS1.
[403] Statement of Derek Sporl dated 12 January 2024 at [32].
[404] Transcript of Proceedings, 29 January 2024, PN 771.
[405] Transcript of Proceedings, 29 January 2024, PN 857.
[406] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [54] – [55].
[407] Transcript of Proceedings, 30 January 2024 at PN 1832 - 1836.
[408] Statement of Applicant dated 22 December 2023 at [16].
[409] Statement of Applicant dated 22 December 2023 at [22].
[410] Transcript of Proceedings, 29 January 2024, PN 771.
[411] Transcript of Proceedings, 30 January 2024, PN 770.
[412] Statement of Derek Sporl dated 12 January 2024 at [33].
[413] Transcript of Proceedings, 30 January 2024 at PN 952 - 956.
[414] Transcript of Proceedings, 30 January 2024, PNs755 - 756.
[415] Statement of Rajic Deo dated 22 December 2023 at [10].
[416] Transcript of Proceedings, 29 January 2024, PN 857.
[417] Statement of Adam Williams dated 22 December 2023 at [8].
[418] Transcript of Proceedings 29 January 2024 at PN395.
[419] Statement of Rajic Deo dated 22 December 2023 at [7].
[420] Statement of Feng Li dated 22 December 2023 at [6].
[421] Transcript of Proceedings, 30 January 2024, PNs1541 - 1544.
[422] Statement of Tom Paraskevopoulos at [12].
[423] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [54] – [55].
[424] Transcript of proceedings, 30 January 2024 at PN 1993.
[425] Transcript of proceedings, 30 January 2024 at PN 1995.
[426] Statement of Derek Sporl dated 12 January 2024 at [27] – [28].
[427] Brennan Report, Part 9.26.
[428] Brennan Report, Part 9.37.
[429] Brennan Report, Part 9.38.
[430] Brennan Report, Part 9.42.
[431] Brennan Report, Part 9.43.
[432] Brennan Report, Part 9.37.
[433] Brennan Report, Part 9.38.
[434] Transcript of Proceedings, 30 January 2024, PNs1541 - 1544.
[435] Brennan Report, part 5.
[436] Applicant’s Outline of Submissions in Reply at [31].
[437] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [50].
[438] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [51].
[439] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [52].
[440] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [53].
[441] Statement of Ahmad Ibrahim-Elgarhy dated 12 January 2024 at [53].
[442] Statement of Derek Sporl dated 12 January 2024 at [33].
[443] Transcript of Proceedings 29 January 2024 at PNs 983 -995.
[444] Transcript of Proceedings, 30 January 2024, PNs1541 - 1544.
[445] Statement of Rajic Deo dated 22 December 2023 at [9].
[446] Transcript of proceedings, 30 January 2024 at PNs 1270 - 1278.
[447] Transcript of proceedings, 30 January 2024 at PN 1289
[448] Statement of Rod Harris dated 11 January 204 at [33].
[449] Transcript of Proceedings, 30 January 2024 at PNs1466 – 1473.
[450] Statement of Tom Paraskevopoulos at [8].
[451] Transcript of Proceedings, 30 January 2024 at PNs1583 – 1584.
[452] Transcript of Proceedings, 30 January 2024 at PN1584.
[453] Transcript of Proceedings, 30 January 2024 at PNs1466 – 1473.
[454] Statement of Rob Harris dated 11 January 2024 at [25], RH3.
[455] Transcript of Proceedings, 30 January 2024 at 1462, Brennan Report, Part 9.14.
[456] Transcript of Proceedings, 30 January 2024 at PNs1451 – 1452.
[457] Transcript of proceedings, 30 January 2024 at PNs 1251 - 1252.
[458] Brennan Report, part 9.14.
[459]Transcript of Proceedings, 30 January 2024 at PN1477, Brennan Report, part 9.14(a).
[460] Transcript of Proceedings, 30 January 2024 at PNs1478 -1479.
[461] Transcript of Proceedings, 30 January 2024 at PN 1488.
[462] Statement of Applicant dated 22 December 2023 at [10].
[463] Statement of Applicant dated 22 December 2023 at [6].
[464] Brennan Report, part 9.29.
[465] Brennan Report, part 9.10.
[466] Brennan Report, part 9.10.
[467] Brennan Report, part 9.17.
[468] Brennan Report, part 9.15.
[469] Transcript of proceedings, 30 January 2024 at PNs 1260 - 1265.
[470] Transcript of Proceedings, 30 January 2024, PNs 1497 – 1500.
[471] Transcript of Proceedings, 30 January 2024, PNs 1501 - 1505.
[472] Transcript of Proceedings, 30 January 2024, PNs 1507 - 1508.
[473] Statement of Adam Williams dated 22 December 2023 at AW-5.
[474] Statement of Adam Williams dated 22 December 2023 at AW-6.
[475] Statement of Adam Williams dated 22 December 2023 at AW-3.
[476] Statement of Rob Harris dated 11 January 2024 at [24], Statement of Adam Williams dated 22 December 2023 at AW-6.
[477] Statement of Rob Harris dated 11 January 2024 at [25], RH3.
[478] Transcript of Proceedings, 29 January 2024 at PN 1040.
[479] Statement of Glenn Wilson dated 15 January 2024 at [].
[480] Statement of Applicant dated 22 December 2023 at [16].
[481] Statement of Applicant dated 22 December 2023 at [17].
[482] Brennan Report, Part 9.46.
[483] Brennan Report, part 9.10.
[484] Brennan Report, part 9.17.
[485] Brennan Report, part 9.15.
[486] Statement of Rod Harris dated 11 January 2024 at [12] – [13].
[487] Transcript of Proceedings, 30 January 2024 at PNs1466 – 1473.
[488] Statement of Applicant dated 22 December 2023 at [4].
[489] Statement of Applicant dated 22 December 2023 at [26].
[490] Transcript of proceedings, 30 January 2023, PN 1636.
[491] Statement of Applicant dated 22 December 2023 at [18].
[492] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[493] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[494] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[495] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[496] Applicant’s Outline of Submissions at [43].
[497] Applicant’s Outline of Submissions filed 22 December 2023 at [45].
[498] Applicant’s Outline of Submissions filed 22 December 2023 at [46] with reference to Curtis v Transit Australia Pty Ltd[2014] FWC 8679, [20]; Emery v City of Stirling[2018] FWC 6853, [249]-[252] (this decision was overturned on appeal but not on this point, see Emery v City of Sterling[2019] FWCFB 4015).
[499] Applicant’s Outline of Submissions filed 22 December 2023 at [46] with reference to Jetstar v Meetson-Lemkes[2013] FWCFB 9075, [68].
[500] Applicant’s Outline of Submissions filed 22 December 2023 at [46].
[501] Applicant’s Outline of Submissions filed 22 December 2023 at [47].
[502] Applicant’s Outline of Submissions filed 22 December 2023 at [47].
[503] Applicant’s Outline of Submissions filed 22 December 2023 at [47].
[504] Applicant’s Outline of Submissions filed 22 December 2023 at [48].
[505] Form F3 – Employer response to unfair dismissal application, q. 1.7.
[506] Jetstar v Meetson-Lemkes[2013] FWCFB 9075, [68].
[507] Applicant’s Outline of Submissions filed 22 December 2023 at [48].
[508] Statement of Applicant at [10] and Annexures PC-4.
[509] Applicant’s Outline of Submissions filed 22 December 2023 at [34] – [42].
[510] Transcript of proceedings, 30 January 2024 at PN 1914.
[511] Transcript of proceedings, 30 January 2024 at PN 1918.
[512] Transcript of proceedings, 30 January 2024 at PN 1918.
[513] Transcript of proceedings, 30 January 2024 at PN 1191.
[514] Respondent’s Outline of Argument filed 15 January 2024 at [34] – [38].
[515] Transcript of proceedings, 30 January 2024 at PN 1188.
[516] Transcript of proceedings, 30 January 2024 at PN 1190.
[517] Transcript of proceedings, 30 January 2024 at PN 1191.
[518] Transcript of proceedings, 30 January 2024 at PN 1991.
[519] Kioa v West [1985] HCA 81, [11] (per Gibbs CJ).
[520] Kioa v West [1985] HCA 81, [22] (per Wilson J).
[521] Statement of Ahmet Sayan dated 22 December 2023 at [7].
[522] Statement of Ahmet Sayan dated 22 December 2023 at [10].
[523] Statement of Ahmet Sayan dated 22 December 2023 at [10].
[524] Statement of Ahmet Sayan dated 22 December 2023 at [12], Statement of Alastair Conway dated 15 January 2024 at [33].
[525] Statement of Alastair Conway dated 15 January 2024 at [34] – [35].
[526] Statement of Ahmet Sayan dated 22 December 2023 at [13].
[527] Statement of Ahmet Sayan dated 22 December 2023 at [16].
[528] Transcript of proceedings, 30 January 2024, PN 1842.
[529] Statement of Ahmet Sayan dated 22 December 2023 at [19].
[530] Statement of Ahmet Sayan dated 22 December 2023 at [20].
[531] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[532] Application filed 26 October 2023 at question 2.1.
[533] Applicant’s Outline of Submissions filed 22 December 2023 at [52].
[534] Applicant’s Outline of Submissions filed 22 December 2023 at [53] – [54].
[535] Transcript of Proceedings 30 January 2024, PN
[536] Respondent’s Outline of Argument filed 15 January 2024 at [45].
[537] Respondent’s Outline of Argument filed 15 January 2024 at [46] with reference to Parlamat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 at [18] – [19].
[538] Applicant’s Reply Statement at [9].
[539] Applicant’s Reply Statement at [9].
[540] Applicant’s Outline of Submissions in Reply filed 25 January 2024 at [52], [2000] FCA 627 at [42].
[541] [2014] FWCFB 7198 at [27].
[542] Tenix Defence Pty Ltd v Galea [2003] AIRC (11 March 2003) at [7]-[8].
[543] Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191.
[544] Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191.
[545] Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191.
[546] Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191.
[547] [2014] FWCFB 7198 at [27].
[548] Applicant’s Reply Statement at [9].
[549] Applicant’s Reply Statement at [9].
[550] Transcript of proceedings 30 January 2024, PNs 1848 – 1858.
[551] Transcript of proceedings 30 January 2024, PN 2001.
[552] Statement of Adam Williams dated 22 December 2023 at AW-5.
[553] Statement of Applicant dated 22 December 2023 at [5].
[554] Transcript of Proceedings, 29 January 2024 at PN295.
[555] Statement of Applicant dated 22 December 2023 at [23].
[556] Statement of Applicant dated 22 December 2023 at [44] – [45]
[557] Statement of Applicant dated 22 December 2023 at [46].
[558] Transcript of Proceedings, 29 January 2024 at PN 322.
[559] Transcript of Proceedings, 29 January 2024 at PN 321.
[560] Aurora Energy Pty Ltd v Davison PR902108 (AIRCFB, Watson SDP, Williams SDP, Holmes C, 8 March 2001), [25].
[561] See, for example, Regional Express Holdings Ltd v Richards[2010] FWAFB 8753, [29].
[562] Statement of Applicant dated 22 December 2023 at [45], PC-13.
[563] Statement of Applicant dated 22 December 2023 at [46].
[564] Respondent’s Outline of Argument filed 15 January 2024 at [49] – [50].
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