Rebecca Callow v M People (QLD) Pty Ltd - [2025] FWC 2031

[2025] FWC 2031

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal.

Rebecca Callow
v

M People (QLD) Pty Ltd

(U2024/15172)

COMMISSIONER SPENCER

BRISBANE, 15 JULY 2025

Application for unfair dismissal remedy – Applicant organised fundraiser for ill colleague – fundraiser for the sale of work shirts authorised by Mine management – management guidance not provided ; email in relation to the fundraiser released employee email addresses Applicant carbon copied and not blind carbon copied the personal employee email addresses – dump truck operator established fundraiser – terminated for ‘serious misconduct’ over fundraiser email – alleged breach of privacy and confidentiality policies – comparatively different treatment of Applicant to other more senior managers; same conduct/breach more sensitive information released – lack of guidance and training from Employer on policies – no valid reason – dismissal harsh, unjust and unreasonable – reinstatement Ordered.

Introduction

Mrs Rebecca Callow (the Applicant/the Employee) made an application to the Fair Work Commission (the Commission) pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of her alleged unfair dismissal by M People (QLD) Pty Ltd (MacKellar/the Respondent/the Employer). The Applicant worked at the Carmichael Mine (the Mine) as a dump truck operator. The Applicant’s employment was covered by the M People Queensland Enterprise Agreement 2022.[1]

The dismissal relates to a fundraiser initiated by the Applicant, to assist an employee at the Mine who had been diagnosed with advanced cancer. The fundraiser at the Mine was to be organised by the Applicant with the assistance of Mr Mick Schafferius, the onsite Project Manager, on behalf of the Employer. The fundraiser involved the sale of work shirts. Depending on the colour of the shirt purchased, the proceeds from the sale were to either go directly to their ill colleague to assist with his treatment, or to one of the two nominated charities.

Mrs Callow was notified of her dismissal by the Employer’s Letter of Termination, signed by Mr James Cann, HR Business Partner – Carmichael Coal Mine Project (CCMP). The reason for the termination of employment was for ‘serious misconduct’, on the basis that the Applicant had allegedly breached the Employer’s Privacy Policy, the Confidentiality Agreement, and the Employment Agreement. The Respondent stated in the Termination Letter that the Applicant had “sent an email regarding MacKellar’s Work Shirt Fundraiser from your personal email account … to CCMP employee’s personal email accounts. The content of the email and the disclosure of personal email addresses was not authorized.”

The Termination Letter stated that the Applicant had “knowingly disregarded instructions to refrain from obtaining employee information, leading to a significant breach of privacy. Despite being directed not to obtain or disseminate this information on 17 October 2024 by Mick Schafferius (Project Manager), you chose to disregard that instruction and proceed otherwise.” The Employer, stated that this conduct had caused “reputational harm and complaints to the Company.” In sending the email, the Applicant had carbon copied (cc’d) the email addresses and disclosed some 850 personal email addresses of Mine employees and employees of contractors.

The Applicant denied that she had received that instruction from Mr Schafferius. She stated that it had become necessary to inform employees of the next details of the fundraiser. She stated that she had endeavoured to get guidance from Mr Schafferius but after his initial involvement, he then failed to respond to her emails. The Applicant stated that her inclusion of the email addresses by carbon copy (cc) was a mistake. She apologised and stated that when she typed in all of the email addresses, she had intended to blind carbon copy (bcc) them. The Applicant explained that she did not regularly use email, did not use it at all in her work duties, and had not been trained in its use. The Applicant stated that she needed to send the information in the email as the workforce had only received preliminary fundraiser information. She took into account the cancer prognosis of her seriously ill colleague, in addition, she wanted to facilitate the employees ordering their shirts to finalise the sales.

It was emphasised on behalf of the Applicant that there was no evidence that Mr Schafferius had communicated to her that she was not to send the email or use employee email addresses. Further, that at this time she considered it was critical to progress the fundraiser, and Mr Schafferius had not responded to her emails to confirm the next steps for the fundraiser. Mr Schafferius stated he had advised the Applicant against the use of emails in a prior conversation. The Applicant refuted this. She stated he had not given instructions to her to refrain from sending the fundraiser email or refrain from using employee email addresses.

The investigation regarding the Applicant sending the email was conducted by Mr Cann (the new HR Business Partner). He was also the manager who signed the Letter of Termination. Mr Schafferius, the Employer’s Project Manager, had been the company representative who had held the initial discussions with the Applicant about the fundraiser. He had approved the company fundraiser as evidenced by his communication to the Applicant that the company had sourced the work shirts for the fundraiser and approved the sale of the work shirts to wear at the Mine.

The Respondent alleged by reference to stated policy extracts, that the Applicant had breached particular company policies in sending the fundraising email and presenting employees’ personal email addresses.

The Applicant submitted that when she had conducted a company approved work fundraiser at the Mine in 2022, the Employer had assisted with direct payroll deductions for the purchase of the shirts. However, she stated she was advised by Mr Schafferius that ‘Payroll’ had said this could not be done in relation to this fundraiser due to the Christmas period. The Applicant stated that she was then under pressure to release the fundraiser information to the Mine employees to enable the ordering and purchase of the work shirts. She said to enable this, she requested the email address list from an administrative officer at the Mine. She stated that she individually typed each of the approximately 850 email addresses into her email and set up a digital platform at her own expense ($719) to process the shirt orders. By establishing this payment platform, the Applicant also incurred a small fee for the sale of each work shirt (approximately $600 in total). She had not recorded these expenses she incurred, for reimbursement from the Mine.

It was also argued on behalf of the Applicant that she had been treated differently in being dismissed. The Respondent did not provide the evidence comparing the treatment of other more senior employees, who remained employed after being engaged in similar conduct in exposing employees’ personal email addresses. Further, some of those emails had included the release of more sensitive information than the Applicant’s email. It was set out that the Respondent had not taken sufficient measures to ensure the confidentiality of the employee email addresses and the Applicant had not received training in relation to the company policies, or the use of the email addresses.

In arguing that the dismissal was unfair, the Union also highlighted on behalf of the Applicant, that the Employer in terminating the Applicant’s employment, relied on prior disciplinary matters that were not included in the Show Cause Letter or raised with the Applicant for her response as part of the dismissal process.

The Applicant sought reinstatement, lost wages, and continuity of service for the period from her dismissal to the date of reinstatement. She was paid 3 weeks wages in lieu of notice. The Applicant stated that she was 36 years of age at the time of the termination, and that she had expected to continue her employment with the Respondent for at least another 10 years. The Applicant’s husband was employed at the same Mine site. At the time of the Hearing, it was submitted that the Applicant had commenced employment at another mine site. In the new role she earned less; $2,276.40 per week compared to her prior earnings of $2,3874.44 with the Respondent. In addition, the Applicant’s new job required her to drive from Townsville to Moranbah, approximately 7.5 hours each way, at her own expense. When she was employed with the Respondent, she received complimentary flights to and from Townsville and the mining site. In consideration of the alleged unfair dismissal, it was argued on behalf of the Applicant, that the appropriate compensation would be an amount that exceeds the statutory cap of 26 weeks in section 392(5) of the Act. However, the Applicant submitted the appropriate amount of compensation that she should receive (in the alternative) is the equivalent of 26 weeks of wages, at the Applicant’s full rate of pay before termination.

It was stated on behalf of the Applicant that even if a valid reason was confirmed that the termination of employment was a disproportionate response and was harsh, unjust and unreasonable. That the process had been procedurally unfair. Mrs Callow alleged that she made a mistake when under time pressure and was acting in good faith in support of another employee. Further it was stated that the email addresses are accessible on site, and that no training or explanation had been provided by the Employer on the company policies relied on (either upon her engagement or since).

Procedural background

At the request of the Parties, the matter was heard in person in Brisbane. A Digital Hearing Book (DHB), including all of the written submissions and witness statements, was used by the Parties at the Hearing. The Respondent at the Hearing also tendered a further document, the Employee Handbook.[2] This document was relied on by the Employer for the termination, but it was not included in the Show Cause Letter for the Applicant’s response.

Given some of the documents referred to, included a range of personal email addresses, Counsel for the Respondent sought an Order suppressing the email addresses from public release or publication in anyway. The Confidentiality/Suppression Order was granted.[3]

Relevant legislative provisions

The relevant legislative provisions of the Act to be addressed were included in the Directions. Those provisions are repeated below for convenience:

Section 387 of the 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.

Each of these criteria in section 387, are later assessed according to the factual circumstances of this matter.

Section 390 of the Act provides that the Commission may provide a remedy if the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed and the Applicant has been unfairly dismissed.

Furthermore, section 392 of the Act, as included on the Directions, provides:

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a)the effect of the order on the viability of the employer’s enterprise; and
(b)the length of the person’s service with the employer; and
(c)the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d)the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e)the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f)the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g)any other matter that the FWC considers relevant.

Serious misconduct is defined in Fair Work Regulation 2009 at 1.07 as follows:

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

Examples of serious misconduct—employees

(2) For the purposes of subregulation (1), conduct that is serious misconduct includes the following conduct of an employee:
(a)wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment;
(b)conduct that causes serious and imminent risk to:
(i)the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business;
(c)engaging in theft, fraud, assault or sexual harassment in the course of the employee’s employment;
(d)being intoxicated at work;
(e)refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(3) Paragraphs (2)(c) to (e) do not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

Section 382 of the 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.

In accordance with Section 396 of the Act, it must be determined:

(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; and
(d)whether the dismissal was a case of genuine redundancy.

The Parties agreed that the application was filed in the Commission, within the statutory 21-day period. It was agreed that the Respondent was not a small business employer, and that this dismissal was a termination of employment and not a case of genuine redundancy.[4] I am satisfied that the Applicant was a person protected by the unfair dismissal provisions.

Legal representation and witnesses

Mrs Callow was represented at the Hearing by Mr Chris Newman, Senior Legal Officer of the Mining and Energy Union (the Union). Prior to the Hearing, the Applicant was represented by Mr Aidan Nash, Senior Legal Officer of the Union. Both Union Officers are registered solicitors on the Queensland register of solicitors. At the Hearing, Mrs Callow was the only witness in her case and gave evidence and was cross-examined by the Respondent. She had two witness statements tendered (initial and reply).

M People was represented by Mr Troy Spence of Counsel, briefed for the Hearing. Prior to this a solicitor of MinterEllison, the then lawyers for the Respondent, sought permission pursuant to section 596 to appear on behalf of the Respondent. At the Conference/Mention, the original solicitor provided submissions to appear on behalf of the Respondent in these proceedings.

Having considered the Parties submissions, legal representation was granted for the Respondent’s representative pursuant to section 596(2)(a) of the Act. A Form F54 – Notice of Representative Ceasing to Act was then filed in relation to the original solicitors.

Mr Ross Wakeford, Senior Employment Relations Advisor of Drayton’s Workplace Consulting, filed a Form F53 – Notice of Representative Commencing to Act which gave notice that Mr Troy Spence, of Counsel, would be the Respondent’s legal representative instructed by Drayton’s Workplace Consulting (as Paid Agents). On that same day, correspondence was sent to the Parties outlining that as the permission pursuant to section 596 had been granted, it would also apply to the Respondent’s new legal representative. Counsel was granted permission to appear (given the earlier permission for legal representation); this was in accordance with the Full Bench’s decision of NSW Bar Association v McAuliffe.[5]

The Respondent’s witnesses were Mr Michael (Mick) Schafferius (Project Manager) and Mr James Cann (HR Business Partner). These witnesses provided evidence at the Hearing and were cross-examined by the Union.

Summary of the submissions

The Applicant was employed by the Respondent from 29 June 2021 as a plant operator at the Carmichael Mine. The Respondent holds a contract with Bravus Mining and Resources to operate the Mine, which is located in the Galilee Basin in Regional Queensland.[6] Mr Schafferius was responsible for the $9 million Mine project.

The Applicant proposed to Mr Schafferius that she wished to organise a fundraiser to support an ill work colleague who was diagnosed with cancer.[7] The Applicant had experience with fundraising,[8] including conducting a similar fundraiser at the Mine in 2022. The aim was to raise money for their ill colleague and for charity, with the approval and assistance of the Respondent.[9] The Respondent acknowledged their support for the fundraiser in the initial communications of Mr Schafferius with the Applicant. The Respondent sourced the shirts to sell through the fundraiser, which would include the Mackellar logo and the employee’s name. However, of importance, there was a factual dispute over whether the Applicant had sought further guidance from the Respondent for the fundraiser communication to employees. This is an important issue as the Applicant set out that Mr Schafferius did not respond to her further emails to guide the progress of the fundraiser. She also stated that he provided no statement telling her not to send the fundraiser email.

The Parties agreed that the Applicant asked Mr Schafferius about an email to be sent to the Respondent’s employees to promote the fundraiser.[10] The Applicant submitted that she viewed this would either be from herself or from the Respondent. The Applicant stated that she did not receive a response to this request.[11] Mr Schafferius submitted that he presumed the Applicant was requesting an email be sent to the work email addresses of the Respondent’s employees, given that the Applicant did not have access to the employees’ personal email addresses. Mr Schafferius submitted that when he received the request from the Applicant, he could not immediately approve it as he had to seek authorisation first.[12] At no stage did he inform the Applicant of a response or that a further period of time was required to seek approval. It was clarified that a number of employees used their personal email addresses for work correspondence.

The Email to Employees using their Email Addresses

The Applicant’s evidence was that she sought by email, confirmation from Mr Schafferius on how to progress the fundraiser. These attempts by the Applicant are set out later. The Applicant stated that she received no response or guidance and that the time to sell the shirts based on her understanding of her colleague's illness was increasingly reducing. Accordingly, having received no response from Mr Schafferius, at the relevant time, the Applicant had obtained by request, an email distribution list from a Site Administrator of the Respondent.[13] Most employees or the employees of contractors, do not have work email addresses but use their personal email address. The Applicant was provided a distribution list of approximately 850 email addresses of the Respondent’s employees and contractors at the Mine.[14] It was submitted that the Applicant did not ‘access’ the emails as alleged as they were given to her on request.

A day after receiving the emails, the Applicant sent an email to the Respondent’s approximately 850 employees, including those of their contractors (the recipients).[15] The email used the platform that she had set up to capture an employee’s order for a shirt and their payment. The email contained information about the fundraiser and a link to purchase the work shirts. The Applicant submitted that although she intended to ‘bcc’ all recipients, she accidentally typed the email addresses into the ‘cc’ field, making all email addresses visible to the recipients. The Respondent submitted that this action was an unauthorised usage of confidential information, which included a link to an unauthorised fundraising platform, and provided the Applicant’s personal bank details to receive the fundraising proceeds.[16] Further, the Respondent stated this email misrepresented the Respondent’s involvement in the fundraiser (including to wrongly state that the Respondent did not support payroll deductions) and made visible the email addresses of all recipients.[17] The Respondent submitted this action was a breach of privacy for its employees and contractors and exposed the Respondent to potential liability under the Australian Privacy Principles.[18] The Respondent also submitted that its reputation and relationships with external contracting agencies were put at risk by the Applicant’s actions.

It was submitted on behalf of the Applicant that the Respondent’s representative, Mr Schafferius, had initially supported the fundraiser, telling the Applicant that the shirts had been confirmed. However, he ignored the Applicant’s emailed requests for support at the critical time, leaving her to have to progress the administration of the fundraiser. The Applicant’s email to Mr Schafferius, (as set out under valid reason) establishes the Applicant’s intentions for an email to be sent to employees, as follows:

“Also, would there be a way that I could send the poster, order form & deduction form via email to everyone?
(Then they can print, scan and send back to me that way) - I’m thinking of all the people that are “off” with sick / annual leave. Happy to send to you first for approval of course.”

The Applicant received no response to this email. She also sent a further email, which Mr Schafferius did not respond to. The emails between the Applicant and Mr Schafferius in relation to the fundraiser are further referred to in the assessment of valid reason.

The Applicant’s email sent to all employees whereby the employees’ email addresses were visible in the ‘cc’ field, is set out below. Mr Schafferius had not responded with any relevant information to the Applicant in the interim week. Accordingly, the Applicant sent the below email:

“Hi there,

My name is Bec Callow, and I am the organiser of the Mackellar Work shirt Fundraiser. I'm sending this out to everyone to show our support and to raise much needed funds for our chosen charities and to support [redacted], who is going through [redacted] Cancer.

Unlike last time, I am doing things a bit differently this year as we are NOT DEDUCTING THIS FROM YOUR PAY, you will need to pay for your shirts yourself. In saying that though, I have built an online ordering platform and have created a payment gateway to accommodate most payment types, and to simplify the ordering process for everyone, whilst keeping up with the times! …

HOW TO FILL IN THE ORDER FORM:
> Link: [redacted]
> Online Kiosk (Bec's phone only - great for those paying cash!)
> Via an App - ask Bec to set up your own kiosk on your phone!
> Via a QR Code - ask Bec for this! (also attached to this email!)
> Emailed / Text Message / Facebook / Messenger / WhatsApp / Printed

Payment Types include:
> *Credit Card
> *Apple Pay
> *After Pay
> Square Card Reader (B/D Prod/Mait Crews only +OTers)
> Square Tap to Pay (on Bec's phone) (B/D Prod/Mait Crews only +OTers)
> Bank Transfer – [redacted]
> Cash (given to Bec Directly)
…

A massive thanks to Mackellar for sponsoring the purchase of the shirts and for covering the embroidery costs. Your generosity is greatly appreciated, and we thank you for your ongoing support.

If you have any dramas with the order form, receiving your donation receipt or any of the payment types, or need help with anything, I am happy to assist! Please don't hesitate to text BEC CALLOW on [redacted] or via email: [redacted]

I hope everyone can get behind me and help support [redacted] and the chosen charities. (National Breast Cancer Foundation and Prostate Cancer Foundation of Australia) With your support and donation/s, we can make a difference! You are awesome and we are all grateful for your contribution towards our Work shirt fundraiser. I can't wait to see everyone in their new flash shirts! Let’s make this go bigger than Ben Hurr!!!

I have also included the online donation page for [redacted] that includes an online card if anyone wants to donate to this as well. I've also included the poster for this as an attachment. There is a virtual card you can sign and leave a message for [redacted].
…

Thanks guys! Take Care and Stay Safe.”

The Applicant’s actions in sending this email were later subject to a disciplinary investigation. The Applicant in her prior email referred to had, put Mr Schafferius on notice that she considered that an email needed to be sent to all employees about the fundraiser. He did not follow up or respond to her in relation to this matter.

Respondent Reputational Damage

Mr Cann, HR Business Partner submitted that on the next morning, after the Applicant had sent the email to employees that he, and other members of the Respondent’s Human Resources, received some employees’ emailed expressions of concern about the use of their personal email addresses. They were concerned their email addresses were visible in the email that the Applicant had sent. Mr Cann provided redacted samples of these emails in his witness statement. On request Mr Newman of the Union confirmed the unredacted copies of these complaint emails received by the Respondent. For example, a blasting company sent the below email:

“Majority of our team have received the below email to their personal email address.

Can you investigate this email and provide feedback. Looking to decipher if the email is a scam and how our personal email addresses were available to the sender.

I understand that this may have been done for a good cause, my team have some concerns over the security of their personal information. I would like to provide them with feedback sooner rather than later.
…”

Another example is from an employee who stated:

“I wish to note that this email, whilst for a good cause is very distressing to my wife and I. I work with the people listed in the email, they are not my friends are now privy to my personal email which is the ﬁrst step in identity theft. I am also extremely concerned that suppliers that I have nothing to do with also now have my personal email. This email is linked to my social media, ﬁnancial accounts, payroll, Dept of Transport, local council and the list goes on.

My other concern is that this information has come from a payroll/HR data base. What other information has Ms Callow been privy to?

Is Mackellar going support me if the worst happens with identity theft etc? What happens if this email list is added to ‘suppliers’ lists? What happens if a colleague decides to email me in a not appropriate manner?

This is also particularly disturbing in that I have only just signed and agreed to the Privacy Policy? Does this now not apply? Is this a free for all now? Can photographs now be posted on social media of incidents on the mine site.

Can I now go in to the office and ask to send out a mass email to all staff, contractors and suppliers for a ‘good cause’?

Many personal emails are also share accounts between families and spouses, so it not just me or my colleagues affected in this type of incident.

Are you aware of how easy it would be for me with minimal IT skills to hack a colleagues facebook account just with an email address?

I am trying to express my concern and displeasure as civilly and politely as possible, but believe my personal privacy has been breached and my human right as a right to privacy has been breached.

I would like to see initially, strategies forwarded to all people on the email list on measures that can be taken to protect the ourselves. What will support from Mackellar look like?

I would like this to be recorded as a formal complaint and would hope their would be no retribution towards me and my employment because I am making a complaint.
Thankyou”

Mr Cann submitted that due to these complaints, he forwarded the Applicant’s email to Mr Alan White, General Manager - HR & HSET, who asked that he make inquiries to determine how the Applicant obtained the employees and contractor email addresses.[19]

The Applicant submitted that following her email sent to employees, she received an email that appeared to have been sent to all employees from Mr Cann, it stated:

“Hi All,

As you may know, we received a request to support a fundraiser for Mackellar work shirts recently, this initiative was to support one of our workers who is battling cancer as well as other like-minded initiatives. It has come to our attention that, unfortunately personal email addresses may have been inadvertently released last night whilst launching this initiative.

Be aware M People is taking this matter very seriously and will investigate this potential breach.

We apologise for any inconvenience, and will provide a further update once we determine what has occurred.”[20]

Five days later, the Applicant received a call from Mr Cann telling her that she was being stood down pending an investigation into misconduct.

[45] On 13 November 2024, the Applicant had a phone meeting with Mr Cann, Mr Leigh Smith (Production Superintendent of the Respondent) and Mr Troy Jeppesen (the Applicant’s support person). At that time, the Applicant’s usual supervisor was on leave, and so her then supervisor was Mr Smith.[21] During the meeting, the Applicant was provided a Show Cause Letter. The Show Cause Letter set out as follows:[22]

“Dear Rebecca,

Show Cause Letter
We are writing to bring your attention certain matters regarding your conduct that require an explanation. On Wednesday 6 November at approximately 10:12pm, you sent an email regarding MacKellar’s Work Shirt Fundraiser from your personal email account [redacted] to CCMP employee’s personal email accounts. The content of the email and the disclosure of personal email addresses was not authorized. We note that during the meeting with Leigh Smith (Production Superintendent) and James Cann (HR Business Partner), you chose to bring Troy Jeppesen as your support person.

Your conduct
You requested access to personal email accounts from Mick Schafferius (Project Manager), the request was denied and you proceeded to obtain the confidential information via another employee.

M People consider this behaviour to be improper conduct and very serious in nature. Specifically, this amounts to a breach of:
· MacKellar’s Privacy Policy – signed by you 23 May 2022
o Personal information will only be disclosed with your [employee’s] authorisation

·     MacKellar’s Confidentiality Agreement – signed by you 07 June 2021
o   Not copy, reproduce or record any confidential information except in accordance with this agreement, in the ordinary course of their employment or the written consent of the Company
o   Take all necessary or appropriate steps to prevent the unauthorised use or disclosure of the Confidential Information

Proposed Disciplinary Action
For these reasons, M People is considering appropriate disciplinary action, up to and including termination of your employment.

Opportunity to Respond
Before making a final decision, M People would like to give you the opportunity to respond to the proposed disciplinary action and present any information you consider relevant.

You are invited to provide your response in writing by 5pm Friday 15th November 2024, by email to James Cann [redacted].

Other Matters
This letter confirms you have been stood down from work duties pending the outcome of the show cause proceedings. Until further notice, you are required to remain at camp.

Suspension is a neutral act and the suspension period does not affect your employment-related benefits and will, in all other respects, be treated by us as normal paid working time.

During the period of suspension:
· You must not, without our prior permission, discuss the fact of your suspension or the fact of or the nature of the allegations against you with anyone associated with MacKellar other than our HR team and Site Management.
· You will need to remain available by phone during your normal working hours to assist with any queries relating to your work or enquiries relating to the incident. The phone number we have for you is [redacted]. Please notify us immediately if this number is incorrect.

I remind you that you are required to maintain confidentiality at all times about this matter, and therefore must not discuss any part of this investigation, findings, or outcomes with any person, including any current or former employees. You can, however, discuss the matter with a professional advisor to obtain advice. Any such advisor is also required to maintain confidentiality.

Should you require any counselling support, please be reminded that you have access to our Employee Assistance Program (EAP), [redacted]. The EAP is a free and confidential service, available 24 hours a day, and can be contacted on [redacted].

Yours sincerely,

[Signature]

James Cann
HR Business Partner – CCMP”

On 14 November 2024, the Applicant advised the Respondent that she would be represented by her Union representative, Shane Brunker. She also had Troy Jeppesen attend as her support person. On the same day, Mr Brunker, requested an extension to provide a response, citing the need for additional preparation time and that request was granted.[23]

The Applicant provided a response to the Show Cause Letter on 15 November 2025.[24] The response to the Show Cause Letter was as follows: [25]

“Dear James
Re: Show Cause Letter
I am writing to you today in response to the Show Cause issued to myself on 13 November 2024. In that letter you have alleged that I “requested access to personal email accounts from Mick Schafferius (Project Manager), the request was denied and you proceeded to obtain the confidential information via another employee”. You have alleged that this amounts to a breach of MacKellar’s Privacy Policy and Confidentiality Agreement.
I fully understand the severity of this mistake and I want to express my sincerest apologies for the oversight and any distress or privacy breaches that this may have caused. However, I assure you that I did not deliberately obtain confidential information or share this information with others. I was not aware that it was a breach of privacy to obtain the email addresses, and I did not mean to share these email addresses with anyone else. I have learned from my mistake and I assure you it will never happen again.
The situation arose when I organized a fundraising initiative to support our colleague, [redacted] by offering work shirts for sale. My intent was purely to contribute positively to the team and to provide a gesture of support during a challenging time. Unfortunately, in my eagerness to coordinate the efforts, I inadvertently included personal email addresses in a group email, without gaining the correct authorisation to proceed. This was a genuine mistake. I intended to BCC all the recipients of the email but I accidentally added them to the CC box instead where they were visible. I deeply regret not checking the BCC box on the recipient list before sending.

In relation to requesting the email addresses, my initial request for this information from Mick Schafferius was not denied as alleged. I had received permission to conduct the fundraising activity from my manager. After receiving permission, I emailed Mick to ask if a group email could be sent either by the Company or by me. I did not receive a response to this request.
Not knowing how long [redacted] had to live, I felt that I needed to send the email as soon as possible, so I asked another colleague for the email addresses. At the time, I did not know that this was a breach of privacy.
I acknowledge that this was the wrong thing to do and that I should have followed up with Mick instead. I understand that by signing the privacy policy that personal information can only be disclosed with Mackellar’s authorisation, and that the confidentiality agreement states that I would not copy, reproduce or record any confidential information, and to prevent the unauthorized use or disclose any of this confidential information. Unfortunately, I did not realise at the time that obtaining the email address of my workmates was a breach of privacy, I had thought that it would be okay as long as I did not share the email addresses with anyone. I have made a mistake and have realized that I breached my contract agreement.
It was an honest mistake and I am very remorseful and deeply sorry for my actions. I honestly did not mean to breach these policies as I was eager to inform people of our work shirt fundraiser, to help those in need during a time of difficulty, helping to raise much needed funds for people and the chosen charities. This will never happen again, and for the inconvenience / embarrassment of this unfortunate event, I am truly sorry and take full ownership over my honest mistake.
I take full responsibility for this error and have already taken steps to ensure that such a mistake does not happen again.
I have reviewed company protocols regarding email communications and privacy, and I am committed to adhering to all policies moving forward. Additionally, I would be more than happy to participate in any training or review sessions to further improve my understanding of the company’s privacy and communication practices/ policies.

As a kind hearted employee of Mackellar, I always go out of my way to help others, and to make sure they feel appreciated, respected and valued. Prior to organizing the work shirt fundraiser, I previously ran this fundraiser (with only the pink and blue shirts) back in 2022. This was a great success and was a good marketing opportunity for Mackellar. The publicity that this fundraiser gave to our workforce, to help build up the team morale was unreal. People felt as if they belonged to something and played their part to help out charities, fundraising money, and raising awareness - all while being decked out in a pink and blue shirt that they could wear proudly to say that “I helped make a difference.” This is why I wanted to take on the fundraiser again, not for the money but for the respect so I could help build up our broken team morale, to help raise funds for one of our own workers who is struggling with [redacted] cancer, and to raise awareness and to be able to support charities.

…

I have been working out here with Mackellar since June 2021, (over 3 ½ years) and have made friendships that will last a lifetime, and have seen this mine grow from 3 diggers to 11, from 1 dump to 5, from 10 trucks to 48, built the ROM, the CHPP and watched it grow from early developments. I have worked well over 50+ days of overtime within the 3 ½ years, and have always gone above and beyond for the company, helping out with production, ROM and sometimes helping out the maintenance department with some admin duties. It has been a pleasure watching the mine grow and thinking back to how it was when I first started. I was the first operator to bring TK10 out brand new and was the first operator to get a load from EX10. It’s the little wins for me!
I am a hard worker and generally don’t have sick days, unless there has been a sudden family issues / sick children / close deaths at home and I am needed to be at home for these instances. I am always reliable and honest, and will help anyone with anything at anytime.
Alongside my husband (who is a leading hand on B Crew) We have recently built our dream house, and this unfortunate incident will have a devastating effect on us and our family if I lose my job, and I regret to inform everyone that rely on us that this will absolutely shatter us, our marriage, our extended family and our children’s uncertain future. I'd like to think I made an impact on people out here, and I will use this scenario as a learning curve, to try and work out the best possible way to make ends meet and to keep our heads above water. Losing my job will have huge financial consequence for us, our family and will create a bad reputation within the entire Mackellar workforce.
Our family is our number one priority and having both parents working away from our children, it is already hard enough for them and this will be the straw that breaks the camel’s back.

Please have some compassion when thinking of the outcome, as I believe this event was just a simple mistake that could’ve been avoided. I have learned a valuable lesson, and it will never happen again. I can be relied on to continue to be a hardworking and honest employee with a commitment to privacy.
Once again, I apologize for my mistake of breaching the privacy and confidentiality agreements, and will not let this happen again. I’m taking responsibility for my actions and apologies to everyone affected by this. Should the opportunity arise for more fundraising endeavors within the future, I would like to offer my services and offer a helping hand if needed.
I value my role at Mackellar, and at the Carmichael Coal Mine and the opportunities I’ve had to contribute to our team. I am dedicated to making things right and continuing to support the organization in a responsible and professional manner. I kindly ask for your understanding and consideration in allowing me to remain in my position, as this mistake does not reflect my usual attention to detail or my commitment to upholding the values of our workplace.
Thank you for taking the time to review this matter. I am available for further discussion if needed, and I appreciate your understanding as I work to prevent similar issues from occurring in the future.

I await your response for the outcome of disciplinary action.

Kind Regards,
Rebecca (Bec) Callow” (emphasis added)

The Termination Letter, outlined that the Applicant’s employment was terminated on the basis of ‘serious misconduct’ as extracted:[26]

“The investigation concluded that you knowingly disregarded instructions to refrain from obtaining employee information, leading to a significant breach of privacy. Despite being directed not to obtain or disseminate this information on 17 October 2024 by Mick Schafferius (Project Manager), you chose to disregard that instruction and proceed otherwise. As a result, your actions have caused reputational harm and complaints to the Company.”[27]

Mr Schafferius at the time of the termination, had been employed by the Respondent, as the site Project Manager for approximately nine and a half months and had been with Mackellar Group for two and a half years. His primary responsibilities included managing site operations, liaising with clients, and ensuring project goals are met.[28] Mr Schafferius was the person that the Applicant approached to discuss the potential fundraising for the ill colleague. She had raised with him whether the Respondent would support the fundraiser by covering the cost of the shirts so that all donations received could be made directly to the charity of choice or to the ill colleague. At this time, a separate proposal had also been brought to the Board of the Respondent, for a donation to be provided directly to the unwell employee on behalf of all employees.[29] However, the Applicant’s fundraiser proposal was preferred. Mr Schafferius’ witness statement provided evidence about the email correspondence the Applicant had sent to him and the Applicant’s subsequent email sent directly to employees. He stated that Mr Cann conducted the investigation and signed the Letter of termination of the Applicant’s employment. During cross-examination Mr Schafferius stated that he did not respond to the Applicant’s emails on 21 and 30 October 2024 (the latter of which was in reply to Mr Schafferius’ email of 29 October 2024). Both of the Applicant’s emails asked questions of Mr Schafferius in relation to the deduction forms from Payroll and if the Applicant could send a fundraising email out to all of the Respondent’s employees, including those on sick and annual leave so they would be able to participate in the fundraiser (rather than if there was just forms left out on the Mine site).[30] Mr Schafferius, as the company contact for the fundraiser, did not respond to the Applicant’s emails as required.

Mr Cann was employed by Mackellar Group as a HR Business Partner in 2024, just prior to the Applicant’s incident; and he was then seconded to the Respondent to work at the Mine.[31] Mr Cann’s role includes managing employee relations matters, advising on workplace policies, overseeing disciplinary processes, and maintaining employment records.[32] He stated in his witness statement that he is familiar with Mackellar and the Respondent’s policies and procedures and has access to employment records in accordance with his role.[33] Mr Cann’s witness statement provided evidence about the Applicant’s email, the staff complaint emails received after it ; (a sample of four complaint emails were provided), his investigation, and the Show Cause a process for the Applicant. There was inconsistency in the evidence between Mr. Cann and Mr. Schafferius regarding the involvement of the project manager in the termination of the Applicant’s employment.

Consideration

Section 387 of the Act sets out the criteria for considering whether there was a valid reason for the dismissal and whether the termination was harsh, unjust or unreasonable.

The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd.[34] McHugh and Gummow JJ explained as follows:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”[35]

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct – section 387(a)

The reason for the dismissal should be “sound, defensible and well founded”[36] and should not be “capricious, fanciful, spiteful or prejudiced.”[37] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).[38]The conduct of the Applicant was assessed ;with regard to the fundraiser email to all employees.

After the Show Cause Letter, Mr Cann and Mr Smith, met with the Applicant and Mr Jeppsen, the Applicant’s support person. [39] In that meeting, Mr Cann and Mr Smith notified the Applicant that her employment with the Respondent was terminated.[40] A Termination Letter (dated the same day) was provided to the Applicant at the meeting. The Letter confirmed payment of her 3 week notice period and provided reasons for the Applicant’s termination.[41]

The extract of the Termination Letter (signed by Mr Cann, HR Business Partner) specifies the Employer’s reasons for termination related to the fundraiser the Applicant email sent : [42]

“….you sent an email regarding MacKellar’s Work Shirt Fundraiser from your personal email account [redacted] to CCMP employee’s personal email accounts. The content of the email and the disclosure of personal email addresses was not authorized.

…you attended a show cause meeting with Leigh Smith (Production Superintendent), James Cann (HR Business Partner) you were asked to explain your actions regarding the disclosure of personal contact information of our employees and contractors.

The investigation concluded that you knowingly disregarded instructions to refrain from obtaining employee information, leading to a significant breach of privacy. Despite being directed not to obtain or disseminate this information on 17 October 2024 by Mick Schafferius (Project Manager), you chose to disregard that instruction and proceed otherwise. As a result, your actions have caused reputational harm and complaints to the Company.

Conclusion:

After considering your response, the Company has decided to terminate your employment effective today due to serious misconduct. Specifically, your actions breached:
·MacKellar’s Privacy Policy (signed 23 May 2022),
·MacKellar’s Confidentiality Agreement (signed 07 June 2021), and
·Your Employment Agreement (signed 08 July 2021)

Final Payment and Entitlements

We will make payment of three (3) weeks to you in lieu of notice in accordance with clause 32.3 of the M People Enterprise Agreement 2022. Any other entitlements owed to you will be included in your final pay.

Yours sincerely,
[signature]
James Cann
HR Business Partner - CCMP” (emphasis added)

There was clearly no consideration of anything raised at the show cause meeting given that the Termination Letter had been pre-prepared and handed to the applicant at the showcase meeting. In contrast with the Show Cause Letter the Termination Letter referred to an additional breach of the Applicant’s Employment Agreement. The Show Cause Letter unlike the Termination Letter, referenced parts of the two policies that had allegedly been breached.

In relation to the Applicant’s email as outlined in the Termination Letter, the Applicant considered that employees being able to make their work shirt orders was a time sensitive matter given that they had been alerted to the fundraiser and due to the ill health of their colleague. The following emails were sent by the Applicant and Mr Schafferius regarding the progress of the fundraiser. Mr. Schafferius failed to respond to the particular inquiries from the applicant as to how to proceed with the fundraiser communications.

The Applicant sent, the first of these relevant emails, with the subject “Shirt Update?”:

“Hi Mick,
Just chasing up whether you got a chance to chat with Gerri from payroll about the work shirt deduction forms? Today is our last day, and we were hoping to have order forms / posters out in the crib huts this week. [Redacted] from maintenance admin said she can print them out for me if needed. I did send you the PowerPoint slides for the RTW this week, and a copy of the posters (should’ve been sent from Ratty’s email) - could you let me know if this all good to proceed? (I need the deduction forms) and a copy of the poster –I sent this to you too! Cheers Mick.
Let me know how you got on.
Bec.”

Mr Schafferius during cross-examination stated that he did not think that he responded to this email of the Applicant. .[43] There was no evidence that he responded.

Mr Schafferius did email the Applicant 8 days later; with the subject “Shirts” as follows:

“Bec
Some good news we have approval to progress with the shirts.
You can start your order forms as of tonight so we can get the numbers and get the order under way.
There is one thing that we will need to do and this is from my end and that is have our procurement team get a quote as well they may get them cheaper from another supplier but they doo (sic) all the work.

Regards,”

The next day, the Applicant replied to Mr Schafferius:

“Hi Mick. That’s great news!

Did payroll send you the deduction form?
I need that so I can attach with the order form.

Can you send me the posters / order forms - because I had sent them through to you from Wratty’s email. I didn’t think to send it to me. Oops!

I can forward onto Lisa at Maintenance admin and she can print out posters / order forms etc. (She already said she could help me with that!) Then I can pick up some coloured folders so that everyone can leave them in the crib huts for me to collect.

Also, would there be a way that I could send the poster, order form & deduction form via email to everyone?
(Then they can print, scan and send back to me that way) - I’m thinking of all the people that are “off” with sick / annual leave. Happy to send to you first for approval of course.

I’ve just come off nightshift so am heading to bed, but I’ll probably be up around lunchtime so I can come into the office then and see how you went.

Thanks Mick.
Bec.”

Mr Cann confirmed that after the Applicant’s above email inquiry Mr Schafferius did not respond to her before she sent her email to employees.[44] Whilst his later evidence was that he was seeking approval. There was no communication to the Applicant, that he was engaged in that process or that there was a further response to come to her.

Lack of Training in Relation to Policies

The Applicant’s Termination Letter stated that three company policies had been breached: the Privacy Policy, the Confidentiality Agreement and additionally (in the letter of termination) the Applicant’s Employment Agreement. The Employment Agreement was not included in the Show Cause Letter. This denied the Applicant the ability to understand or respond to this allegation and this is discussed further below under section 387(c).

The two policies (the Privacy Policy and the Confidentiality Agreement) referenced in the Show Cause Letter were remotely signed electronically by the Applicant in 2021 and 2022 (provided without associated training or explanation). In assessing the Applicant’s conduct; the use of email was not part of the Applicant’s core work duties. In relation to the matters under consideration,, the Applicant’s Witness Statement stated that these two policies were not explained to her:

“11. Prior to my employment, I was also provided with a Confidentiality Agreement to sign. I have been provided with a copy of this after my dismissal which indicates that I signed this on 7 June 2021. I otherwise have no recollection of signing this document and I do not recall this document ever being explained to me.
…
12. I am aware that the Respondent has a Code of Conduct. I do not specifically remember if and when I was provided with a copy of this prior to my dismissal but I was aware of its existence. I have never had the Code of Conduct explained to me nor have I received any training in relation to the code of conduct.
…
13. I was never told during my employment that email addresses were confidential or personal information that should not be accessed or shared.”

On the unchallenged evidence of the Applicant, there was a lack of training on the policies, in relation to the events that led to the termination. The Applicant’s duties did not require her to use email, and the Respondent did not train her in relation to email usage. However, the Applicant before she sent the email had raised the use of email to the Respondent (via Mr Schafferius), and at this point if there were concerns regarding confidentiality or personal information in relation to the use of email, this is when the policies could have been explained clearly to the Applicant. However, Mr Schafferius remained silent, did not respond, and therefore information was not explained to the Applicant.

The fact that the Applicant was required to sign the policies (on commencement) with no associated explanation or refresher training in the ensuing period significantly diminishes the Respondent’s ability to rely on these policies as reasons for the termination in relation to the facts of this matter.

Alleged Breaches of Company Policies

As above, the Show Cause Letter stated that the Privacy Policy and the Confidentiality Agreement had been breached by the Applicant. Under both policies, the Show Cause Letter included an extracted statement from each that the Respondent considered that the Applicant had breached. The extracts are set out below.

In relation to the Privacy Policy, the Show Cause Letter states “Personal information will only be disclosed with your [employee’s] authorisation”. In relation to this section extracted in the Show Cause Letter, this obligation relates to MacKellar’s duties as underlined below:

“PRIVACY
MacKellar will only collect personal information that is reasonably necessary for its business functions and activities, and as permitted by law.

MacKellar respects the privacy of our employees, contractors, and suppliers.

MacKellar’s commitment to you:
·Personal information will be collected lawfully, in a manner which is not intrusive
·Personal information will only be used for the specific purposes for which we collected it
·Personal information will only be disclosed with your authorisation and as necessary to prevent a threat to health and safety, as required by law, or to assist authorities
·Reasonable steps will be taken to protect personal information collected from misuse, interference, loss, and unauthorised access
·Reasonable steps will be taken to securely destroy or de-identify personal information where it is no longer needed for the purpose for which it was collected” (emphasis added)

It is noted that the Privacy Policy referred to is part of the Code of Conduct and is not a separate document. Further, the Privacy Policy extract relied on by the Employer in the Show Cause Letter, relates to Mackellar’s commitment to employees rather than to an employee’s obligation. It is difficult to reconcile how the Applicant breached this extract of the Privacy Policy where this duty does not clearly apply to employees. This is particularly so where the Applicant had sought guidance regarding the fundraiser email to employees. Mr Schafferius did not respond; he failed to meet his responsibility to manage the Employer’s commitment to employee privacy. Mr Schafferius stated in evidence he had no interest in the fundraiser, resulting in his breach of duty under the privacy policy.

In relation to the Confidentiality Agreement, the Show Cause Letter recorded the following sections of the Confidentiality Agreement: “Not copy, reproduce or record any confidential information except in accordance with this agreement, in the ordinary course of their employment or the written consent of the Company” and “Take all necessary or appropriate steps to prevent the unauthorised use or disclosure of the Confidential Information”. Those particular extracts as they appear in the Confidentiality Agreement are underlined below:

“THE PARTIES AGREE AS FOLLOWS:
1 Confidentiality
1. 1 In consideration of the Employee receiving Confidential Information and obtaining the benefits as an employee of the Company, the Employee must:
(a) keep the Confidential Information strictly confidential;
(b) not divulge the Confidential Information to any person other than as permitted by the terms of this agreement or as directed in writing by the Company;
(c) take all necessary or appropriate steps to prevent the unauthorised use or disclosure of the Confidential Information;
(d) notify the Company immediately in writing if the Employee becomes aware of any unauthorised disclosure of the Confidential Information or any breach of this agreement, whether by another employee, contractor, office or professional advisor of the Company or a third party, and take all steps required to prevent that breach;
(e) not copy, reproduce or record any Confidential Information except in accordance with this agreement, in the ordinary course of their employment, or the written consent of the Company;
(f) not use any Confidential Information to the commercial, financial or competitive disadvantage of the Company or a Related Company; and
(g) not do any act or thing involving the use or disclosure of the Confidential Information which may cause loss or damage to the Company or a Related Company.” (emphasis added)

The Confidentiality Agreement also included the following definition for ‘confidential information’. It is unclear which particular provision of the definition was relied on by the Employer in relation to the Applicant’s 6 November 2024 email. This proposition was put to Mr Cann, who had difficulty linking the below definition to the Applicant’s email; this is addressed in the below paragraphs:

“Confidential Information means any information recognised by the general law as capable of protection as confidential to the Company's business including, without limitation:
(a) any information marked as "confidential" or to like effect;
(b) any information the Company tells the Employee is confidential or the Company tells the Employee is to be kept confidential;
(c) any information disclosed to the Employee in circumstances which would, to a reasonable person, indicate that the information is sensitive commercial information or information of a kind which, if disclosed to third parties, could or might cause the Company, or any of its Associated Entities, loss or damage (including damage to reputation);
(d) financial information regarding accounts rendered, income, debts, profits, salaries and wages paid, assets and liabilities and bad debts;
(e) supply and service information regarding goods or services supplied, the name and address of clients and customers to whom goods or services were or are being supplied;
(f) terms of supply or service contracts or particular transactions;
(g) marketing information regarding details about the Company's position in the market place or segments of the market place, the Company's competitors' position in the market place or in segments of the market place, marketing plans and strategies;
(h) personnel information regarding personal or medical histories, compensation, or terms of employment;
(i) information about past, existing or prospective clients, customers or referrers, including their identity, details of past, current or proposed transactions with any of them, or the state of any of their accounts with the Company;
(j) personal information about any of the Company's past, existing or prospective clients, customers or referrers, including their personalities, likes, dislikes and foibles, and special requirements;
(k) strategic information about the Company's business goals and plans including but not limited to target markets, target segments of markets, or plans about premises;
(I) tender information regarding the methods the Company uses to calculate the amounts contained in its tenders, the methods the Company uses to prepare tenders and the information contained in its tenders;
(m) personal identification numbers, passwords, passcodes or similar used in the Company's business to access or operate devices, software or 'cloud' based software services;
(n) procedures, processes, systems or documents relating to the operation of the Company's business that contribute to the sustainable competitive advantages of the business, including any Intellectual Property; and
(o) information confidential to any of the Company's Associated Entities.”

In relation to the Applicant’s understanding of these company policies, including the confidentiality provisions, the Applicant was asked a series of closed-ended questions in cross-examination. The Applicant agreed in cross-examination to matters relating to the policy provisions. The Union provided submissions, on the Applicant’s evidence and her role as a dump truck driver as to what was the Applicant’s actual understanding of the policies. This is taken into account, as is Mr Cann’s limited understanding of the confidential information definition (which is addressed after these matters below). The questioning in cross-examination that was put to the Applicant with regard to the policies is extracted below:

“PN249
And if I can please ask you to go to page 84 of the court book? There's a heading there that says, 'Confidentiality', do you see that?‑‑‑Yes.
PN250
And when you've signed the acknowledgement you'd read this part of the Code of Conduct, correct?‑‑‑Yes.
PN251
And when you read that, you would have understood that you had a requirement to maintain confidentiality and not reveal the confidential information to any person, unless permitted in writing by the company, correct?‑‑‑Mm‑hm.
PN252
That you were to take all steps to prevent unauthorised sue or disclosure of confidential information, correct?‑‑‑Yes.
PN253
That you would not copy, reproduce or record any confidential information, except as authorised in the ordinary course of your employment engagement, with the consent of MacKellar, correct?‑‑‑Yes.
PN254
And that you would also not do any act or thing involving the use or disclosure of confidential information which may cause loss or damage to MacKellar or a related company?‑‑‑Yes.
PN255
And you understand, don't you, that the disclosure of 150 email addresses of personal information of employees of MacKellar could have exposed MacKellar to potential claims of loss or damage for breaches of privacy. Do you agree with that?‑‑‑Yes.
PN256
And you'd also agree, wouldn't you, that the disclosure of the personal email addresses, or email addresses of employees of contractors, could also potentially expose MacKellar to loss or damage?‑‑‑Yes.
PN257
By reason of that disclosure?‑‑‑Yes.
PN258
And you also agreed, when you signed the Code of Conduct, that you would only use the confidential information as authorised by MacKellar, correct?‑‑‑Yes.
PN259
And that you'd safeguard all of MacKellar's confidential information by properly, adequately and securely storing all documents and materials which are considered to contain confidential information, correct?‑‑‑Yes.
PN260
And you would also understand, wouldn't you, your obligations relating to confidentiality also continued after your employment with MacKellar, correct?‑‑‑Yes.”

In relation to the Applicant’s answers during cross-examination about the policies, the Union on behalf of the Applicant in final submissions, submitted that:

“13. Under cross-examination, the applicant made admissions about her actions in her signing the respondent’s Contract of Employment, Code of Conduct, Confidentiality Agreement and Employee Handbook.

14. She further agreed that her signature meant she understood obligations under the policies and that her actions constituted a breach of these policies and procedures.

15. Regarding this evidence, the applicant submits that the Commission should strongly consider placing too much reliance upon any admission the applicant made about understanding what these policies and procedures were and how she breached them for the following reasons:

a. The applicant’s responses did not convey her knowledge of these policies, only an acknowledgement of questions that were put to her. The questions as posed gave the applicant no chance to explain in her own words how she understood these policies to work at the time she signed the document, when she sent the email, during her dismissal or subsequently and gave no insight into the applicant’s understanding of how the policies related to her conduct.
b. Mr Cann and Mr Schafferious (sic)[45] gave evidence that operators, including the applicant, are provided no direction or training in these policies.
c. They also gave evidence that other employees at the mine who were required to handle confidential information, such as [redacted] were provided further specific training in these policies and the handling of confidential information and private information.
d. The applicant both in her statement and in reexamination, maintained that she does not understand what the definitions of “confidential information” or the privacy agreement were or how they operated in relation to the employee emails.
e. As outlined below, Mr Cann, the manager responsible for determining the alleged breaches of policy that were relied upon in the show cause letter, also struggled under cross-examination to adequately explain to the Commission what terms such as “confidential information” and how the applicant’s actions were a breach of the respondent’s policy and procedure. If Mr Cann struggled to articulate this position under cross examination, it would be unfair to expect that the applicant, an operator with training or a requirement to use these policies in their normal role to understand these meanings.” (footnotes omitted) (emphasis added)

The following extract of the cross examination of Mr Cann regarding his knowledge of the confidential information definition demonstrates the definition was unclear even to him. During cross-examination Mr Cann, who undertook the investigation, was asked questions in relation to the definition of confidential information. As per the below extract, he struggled to relate this definition to the Applicant’s circumstances of the inadvertent release of employee emails:

“PN1517
The confidentiality agreement. Now, just on where - is that supposed to be read in conjunction with any other documents, or is this a standalone document?‑‑‑My understand is that it's a standalone.

PN1518
Standalone document. So there's a strict definition of what confidential information is upfront. Can you please just point out to the section that you believe identifies any personal employee email addresses as confidential information?‑‑‑Sure. Under part C of the definitions where it says any information that could or might cause the company or any of its entities or people loss or damage, and emails can be a message for having that kind of thing take place, in my view.

PN1519
That's sensitive commercial information, correct? Commercial information of a sensitive nature?‑‑‑Yeah, or information of the kind, yeah.

PN1520
So what's the loss or damage that would be resolved from an email breach?‑‑‑The main concern that individuals had when it occurred was that their colleagues, now having access to the information, could contact them about things that potentially cause some kind of financial harm or - - -

PN1521
Yes, but that's about employees. That's about causing the company loss or damage. How is the company suffering loss or damage?‑‑‑(Indistinct response.)

PN1522
Yes?‑‑‑I'm sorry. I'm not sure I quite - - -

PN1523
How does a personal email cause the company damage? How does someone else having an employee email get the company to suffer loss or damage?‑‑‑Sorry. I thought you were referring to individuals.

PN1524
Yes, individual emails. So how does the disclosure - how was the disclosure of those emails fit within this definition? How would the company be caused loss or damage - could suffer loss or damage with a private employee email?
…

PN1528
MR NEWMAN: Yes, within the definition of subsection (c)?‑‑‑Reputationally, it could have been affected.

PN1529
Was there reputation affected?‑‑‑It was our view that, yes, it was.

PN1530
How was the reputation affected?‑‑‑Because people developed a view that based on the breach, but we were not handling the information in the proper way that it should have been handled.

PN1531
So did anybody make a formal complaint about that?‑‑‑Yeah, there were complaints about - - -

PN1532
No, a formal complaint to the privacy commissioner?‑‑‑Not that I'm aware of.

PN1533
Did any contracts get lost as a result of this?‑‑‑Not that I'm aware of. I'm not privy to that.

PN1534
Did anybody stop buying coal from - that was mined from MacKellar? Did any business partner cease their dealings with MacKellar as a result of this?‑‑‑Not privy to that.

PN1535
So in what conceivable loss or damage could they have been - could the company have suffered as a result other than a few complaints?‑‑‑Complaints were the main - - -

PN1536
Just a few complaints. Okay. And you think that that's sufficient to cover subsection (c). You also gave evidence that you didn't follow up any of those complaints, did you? You didn't specifically address any of those complaints, did you?‑‑‑No.

PN1537
So you didn't check afterwards to make sure that anybody was comforted by MacKellar's actions, did you? No. So you had no idea what these people that allegedly made complaints - how they felt?‑‑‑No.

PN1538
I put it to you that subsection (c) doesn't apply to this at all, does it?‑‑‑No.”

The Applicant’s understanding of the policies in relation to the privacy and confidentiality provisions has to be viewed in the context of Mr Cann’s cross-examination. on these provisions. His answers indicated that he had a minimal understanding of the confidentiality provisions and how these related to the Applicant’s conduct. The Respondent’s reliance on these policies, where the person conducting the investigation struggled to apply the provisions to the Applicant’s conduct, significantly undermines, a breach of these policies forming a valid reason for the Applicant’s termination of employment.

Lack of Response and Guidance Provided by Mr Schafferius

Mr Schafferius was the Applicant’s point of contact for the fundraiser. The evidence was that he had not responded to the Applicant’s inquiries seeking to progress the fundraiser. This included her inquiries about payroll deduction forms and sending an email to employees regarding the fundraiser details.

The Union in the final submissions on behalf of the Applicant, referred to issues of credit with the evidence of the Project Manager. The Union stated that Mr Schafferius’ evidence was inconsistent. For example, in relation to him contacting (or not) the Payroll team about the payroll deductions, the Union submitted:
“24. Firstly, Mr Schafferious made several conflicting statements about his knowledge of the conversations he alleges he had with payroll employees using payroll deduction for fundraising:
a. In his statement at Paragraph 8, he states that he first checked with payroll and was aware that Payroll could not deduct payments on 21 October 2024.
b. Under cross-examination he stated that he had a conversation with Gerrie McCartney “a few weeks” after the first meeting.
c. However, the email from Gerrie McCartney shows that she was not made aware of fundraiser and Payroll deduction request until 31 October 2024.
d. Further still, Mr Schafferious sent an email on 2 November 2024 to Ms McCartney stating that he had not asked payroll about deductions at all.” (footnotes omitted)

I prefer the evidence of the Applicant on this point given there was no reliable or corroborating evidence that Mr Schafferius had organised with Payroll the same order form and deduction authority as was used for the prior fundraiser.

In relation to the contents of the purported 17 October 2024 conversation between the Applicant and Mr Schafferius, the Applicant submitted that:

“a. His statement, at paragraph 7, claims that during the meeting of 17 October 2024, when he was asked about sending emails, he stated “…staff emails are private.”
b. The applicant’s email of 30 October 2024 outlined a request for access to the email the fundraising forms to employees. It makes no sense for the applicant to make such a request to Mr Schafferious had already stated that he had not agreed to this request on 17 October.
c. He claims, in an email of 7 November 2024 to Mr Cann, after the release of emails, that this conversation occurred, but provided Mr Cann with no statement about the conversation.
d. Mr Cann made a finding that he stated that emails were private based solely on the email of 7 November and never spoke to the applicant about her recollections of the events that day.
e. The applicant, in her reply statement, denies that Mr Schafferious made such a comment on this date.
f. When this evidence was put to him, Mr Schafferious maintained this was correct.”

Given the email correspondence available in relation to the Applicant’s requests for assistance or guidance and the inconsistencies in Mr Schafferius’ evidence,(regarding his unconvincing position on the payroll deduction forms (as set out below) and his involvement in the investigation and termination process despite stating he had no involvement in contrast to the evidence of Mr Cann , I prefer the evidence of the Applicant on these points. This is also in circumstances where Mr.Schafferius had no hesitation in providing evidence that he had no interest in the fundraiser project. This is also in circumstances where he would’ve had the authority to appoint another officer to assist with it if he elected to do so.

Mr Schafferius endeavoured to reduce his role in the events that resulted in the Applicant sending the email to employees which resulted in her termination of employment. He indicated in cross-examination, that he did not respond to the Applicant’s emails of 21 October 2024 and 30 October 2024 when she sought responses on these matters. Both emails from the Applicant to him raised the matters of payroll deduction forms and in the latter email, the Applicant sought guidance on the very issue that formed the basis of the dismissal; that is sending the email to employees.

In relation to the Applicant not receiving a response from Mr Schafferius regarding the payroll deduction forms, Mrs Callow was questioned during re-examination as follows:

“PN626
Sorry, just to finish the question just to confine a bit more. You talked about not getting any assistance. Can you explain to the Commission what you meant by that?‑‑‑So I had done it all off my own back, in my own time. When I went and asked if anyone could help me from the office, I pretty much got told when they done the last fundraiser that it was - you know, it was a pain, it was terrible, it was a - you know, they had to store it. They had to distribute it. They - basically a pain in the arse, excuse my French. And they sort of were a bit negative around that they had to do that again, and then I had the issues with the payroll deduction form and where - - -

PN627
THE COMMISSIONER: Because last time, they did the payroll deduction?‑‑‑Last time, they did the payroll deduction which was just on the back of an order form on a paper form in the crib hut. You fill it in both sides, put it back in the folder. I'll take them, scan them and send them off. This time, we couldn't do that because payroll said that they weren't going to do that and take it out of the payroll.

PN628
(Indistinct). I thought it was - coincided with Christmas and there was (indistinct)?‑‑‑And it was bad timing.

PN629
That's what I understood?‑‑‑And they had no idea of that. I didn't get told that. I went in to see Mick in his office, but he was on leave. So I spoke to the payroll lady, and she had showed me an email on her computer from James Cann, Gerrie Macartney, the payroll lady Jodie - I'm not sure what her last name is - and Mick Schafferius saying that they would not do the payroll system, they wouldn't do the form, they weren't happy to set it up or the new payroll system or whatever, and when I asked her if she could send me the email so that I could know, she told me that that was not for me, and she just showed me on her computer in her office, and I had no communication to - as why they wouldn't do payroll deduction, and, therefore, I opted to do another way where I created an app to do an online order. So anyone could download it, anyone could scan a QR code to get that app, and it had all various payment gateways, all legit, all set up. So Apple Pay, Afterpay, credit card, any of those. They would get sent to a separate bank account that was set up in my name, but was strictly for fundraising only. So all the Square payments that went through, that would literally go into that bank account, and then I would cover all the fees. So if they paid $50 for a shirt, I would get 47 of it. So I would make up the $3 which, you know, doesn't sound like much, but when you've got 300 shirts at 3 to 4 dollars each, then I was looking about $600 out of pocket, and the - - -”

PN1012
Okay. And when you say you stepped away from it, why do you say that?‑‑‑Because I wasn't part of the outcome of that disciplinary process.

PN1013
Would you normally be?‑‑‑No. I get advice from my HR superintendent as to where they're going with that. But, yes, that's as much as I get at.” (emphasis added)

In contrast, Mr Cann asserted that it was Mr Schafferius who made the decision:

“PN1543
And you gave that to Mick Schafferius, and whose decision was it then to subsequently terminate Ms Callow's employment?‑‑‑Mick Schafferius made the ultimate decision.

PN1544
So Mick was the ultimate decision maker?‑‑‑Yeah. So I provide advice on the situation.” (emphasis added)

Given the inconsistencies present in Mr Schafferius’ evidence, as stated above in valid reason, Mr Cann’s evidence in relation to Mr Schafferius being the final decision maker has been taken into account. Given Mr Schafferius’ conflict of interest in the matter, he should not have been the decision maker in relation whether the Applicant’s employment should have been terminated. This weighs in favour of the dismissal being procedurally unfair.

Any other matters that the FWC considers relevant – section 387(h)

Mr Schafferius runs a significant $9 million project. He is understandably not the appropriate point of contact for the fundraiser given his significant role has him actively engaged in other onsite priorities. He was not able to be responsive. He should have had alternative points of contact for the Applicant, for the organisational aspects of the fundraiser. His stated disinterest in the fundraiser however was reflective of his lack of due diligence in responding to the applicant this worked as a disservice towards the Applicant in leaving her to make decisions about how to progress the fundraiser on her own.

The Respondent failed to establish the connection between the Applicant’s email and any reputational damage that they suffered. Mr Cann stated that the reputational harm was in relation to employees and contractors “perception that [they] had mismanaged their personal information.”[62] As further discussed above, while the complaints do show that employees and contractors expressed concerns; there is no evidence that these concerns had any real consequences to the business or these employees. The evidence of Mr. Cann was that there was no follow up with those employees that expressed their concern by Email.

It is also relevant to note that the Applicant when she learned that the payroll deductions could not be implemented for this fundraiser (unlike the last fundraiser), she established an alternative at her own personal cost to get the payments for the workshirt orders. This had her incurring a subscription fee and a fee for every shirt purchased. The applicant at no time sought to recoup these costs. These costs were not reimbursed on the Applicant’s dismissal. When the Applicant’s employment was terminated, the fundraiser continued. The fundraiser raised around $18,000. The Applicant’s endeavours and incursion of various fees showed that she had genuine intentions with the fundraiser and despite her error with the email addresses did not mean to cause any negative outcome. Companies in undertaking fundraisers have legislative obligations and they must be able to show transparency of the collection and use of funds to the fundraising regulator. It is in the main part because of the determination of the Applicant that this could occur. But for the efforts of the Applicant, this fundraiser would not have happened and the significant sum of money for the ill colleague and the two other charities would not have been raised in a bona fide, compliant manner.

Finding

I adopt the below final submissions of the Applicant based on the evidence, which in addition to the reasons set out above, provides a further summary of the events:

“76. The applicant has admitted a sense of overzealousness in commencing her fundraising opportunities. Her emails and evidence presented show a person eager to commence the fundraising due to her concern about the seriousness of [redacted] condition.

77. It is further clear that Mr Schafferious’ emails and evidence that he and others did not share her eagerness for the fundraiser and for it to commence as soon as possible.
For example:
a. Mick Schafferious stated that he had no interest in the fundraiser;
b. He did not respond to the applicant’s emails;
c. He was asked to arrange deductions from payroll in each occasion by the
applicant but did not respond to her.
d. He tried to distance the company from the fundraising or being work related;
e. He took no responsibility for the collection of the money;
f. He either did not check with or refused to tell the applicant that payroll would not deduct money for the fundraiser.

78. Crucially, Mr Schafferious never spoke to the applicant and stated that she was not to use personal emails on 17 October 2024 or any other time.

79. The actions of Mr Schafferious and payroll left Ms Callow feeling that she was not receiving any assistance and was left with the responsibility of planning and executing the fundraising project by herself and without assistance from the company.

80. From 1 November 2025 (sic), it is clear that Ms Callow has made mistakes in her execution of the fundraising project.

81. The applicant is a coal mine operator qualified to operate a rear dump truck. Organising fundraisers is outside her role description. Whilst she had previously organised fundraisers, it was in conjunction with management providing her with the necessary administrative and other support.” (footnotes omitted)

As set out above, the Respondent did not have a valid reason for dismissing the Applicant. In addition to the reasons set out above, there is an unfairness in the Applicant’s dismissal based on the alleged breach of company policies, of which the policies had not been appropriately explained to her. She did not require an active understanding of those procedures in the discharge of her duties. Further, the senior representative of the Employer that the Applicant was liaising with in relation to the company approved fundraiser, left her unsupported in finalising this initiative. That employee was then unfairly involved (given his conflict of interest in the matter) in the investigation and decision to terminate her employment. Additionally, the Employer had not been transparent about the similar exposures of employee email addresses by senior company employees, including emails that included more sensitive information. This represented comparatively different treatment where those employees remained employed; this is particularly given the fact that, unlike the Applicant, they were required to use email on a daily basis as part of their core work duties. For these reasons, it is concluded that the dismissal of the Applicant was harsh, unjust and unreasonable.

Remedy

Having found that Mrs Callow was protected from unfair dismissal, and that her dismissal was not for a valid reason and was harsh, unjust and unreasonable it is necessary to consider what, if any, remedy should be granted to her. The Act provides the following with respect to remedy:

“390 When the FWC may order remedy for unfair dismissal

(1)   Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a)   the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b)   the person has been unfairly dismissed (see Division 3).

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

(3)   The FWC must not order the payment of compensation to the person unless:
(a)   the FWC is satisfied that reinstatement of the person is inappropriate; and
(b)   the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

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

Reinstatement

Section 390(3) of the Act provides that the Commission must not order the payment of compensation unless it is satisfied both that reinstatement of the person is not appropriate, and that it considers an order for the payment of compensation to be appropriate in all the circumstances of the case.

It was submitted on behalf of the applicant that if it was found that her dismissal was unfair, that she should be reinstated to her former position, with compensation for lost wages and continuity of service. In relation to reinstatement, the Applicant submitted that in her role as a rear dump truck operator she is not required to fundraise or come into contact with confidential information in discharging her duties. Further the Applicant submitted she was not trained in or provided with directions regarding the handling of confidential information, and that her error did not result in any loss or damage to the company (including reputationally). Further stated she was not required in the normal course of her role to undertake duties managing emails.

The Respondent submitted that reinstatement would be inappropriate as there has been a loss of trust and confidence in the Applicant. The Respondent argued against reinstatement in relation to the loss of trust and confidence on the basis that they considered that the Applicant’s actions were a substantial breach of policy, that she gave untruthful responses in her Show Cause response, and because she included material in the Commission’s case that was intended to ‘embarrass’ the Respondent (being Mr Kulk’s 2025 emails as outlined above under valid reason). I do not consider that these submissions demonstrate that there has been a loss of trust and confidence in the Applicant in terms of her involvement in the fundraiser or any chance that would prevent her reinstatement to the events. As presented in the evidence it was the Applicant’s initiative and work on the fundraiser that was to be congratulated. It was her involvement in setting up the platform for the purchase of the shirts and personally accommodating the associated fees that led to the significant fundraising outcome.

Compensation

Section 392 of the Act sets out the criteria to which I must have regard to in determining any amount of compensation I might order. Section 392 provides as follows:

“392 Remedy-compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a)the effect of the order on the viability of the employer’s enterprise; and
(b)the length of the person’s service with the employer; and
(c)the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d)the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e)the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f)the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g)any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a)the amount worked out under subsection (6); and
(b)half the amount of the high income threshold immediately before the dismissal.

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

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

The prerequisites of subsection 390(1) provides that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. As a result, it is proper to firstly consider whether reinstatement is appropriate. In considering the statutory scheme relevant to the remedy provisions, the Full Bench of the Commission in Colson v Barwin Heath, stated as follows:

“[26] Section 381(1)(c) of the Act requires an emphasis on reinstatement in providing remedies if a dismissal is found to be unfair, which is one element of the object of Part 3–2. Section 381(2) of the Act requires as part of the object that a “fair go all round” is accorded to both the employer and employee concerned in deciding on and working out remedies under Part 3–2. Section 390(3) of the Act provides that the payment of compensation should not be ordered unless the Commission is satisfied that reinstatement of the person is inappropriate (and an order for compensation is appropriate).
...

[31] The approach of the Deputy President is consistent with that of the Full Bench in Regional Express Holdings Limited trading as REX Airlines v Richards which stated:

“[23] It is clear from the terms of s.390(3)(a) that, in circumstances where a remedy is appropriate, compensation must not be ordered unless the tribunal is satisfied that reinstatement is inappropriate. Seen in the proper context the Commissioner’s statement that reinstatement is the presumptive remedy is not indicative of any error in the decision. The section provides that compensation must not be ordered unless reinstatement has been found to be inappropriate. There is no basis for concluding that the Commissioner interpreted the section differently. Rex’s first submission on remedy must fail.

[24] In relation to remedy, therefore, the first question is whether reinstatement is appropriate.” [63]

Reinstatement may be to the former position (subsection 391(1)(a)) or by appointing the employee to another position on terms and conditions no less favourable than those on which they were employed immediately before the dismissal (subsection 391(1)(b)).

In considering whether re-instatement is appropriate in all of the circumstances, the issue of the loss of trust and confidence as raised by the Respondent must be considered. The issue of loss of trust and confidence has been considered by the Commission in Australia Meat Holdings Pty Ltd v McLauchlan as follows:

“In our view a consideration of the appropriateness of reinstatement involves the assessment of a broader range of factors than practicability.
... ...
We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessarily conclusive.

In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, the Full Court of the Industrial Relations Court said:

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

At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.

Each case must be decided on its own merits."

While Perkins was decided under the former statutory scheme the above observations remain relevant to the question of whether reinstatement is appropriate in a particular case.” [64]

The Full Bench concluded that in considering reinstatement, all of the relevant considerations as raised in the evidence should be weighed against the practicalities of reinstatement. The approach set out in Perkins remains applicable to all of the considerations of reinstatement.

A consideration of the loss of trust and confidence relevant to the question of reinstatement was undertaken in Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter[65]. The Full Bench stated as follows:

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

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

It is noted that in comparison the other more senior employees (who used email as part of their core work duties, and who breached the procedure for email usage in the disclosure of emails (in terms of either the email addresses or other personal information,) and have importantly continued their employment. This detracts from the Respondent’s objections to reinstatement, of the applicant, however the particular circumstances and manner in which the Employer has characterised the breach of the procedure has been taken into account, as has the Applicant’s criticisms of such.

The Applicant's contrition in the circumstances is recognised. However, I have also carefully weighed the various considerations relevant to the termination and to the assessment of reinstatement. That is, whether a productive, appropriate and safe working relationship could be resumed at the workplace. These considerations have included the circumstances of the breach, the implementation of the procedures, and the differentiated outcomes of similar breaches to other more senior employees in that they have remained employed. This has particularly been taken into account where the information released in those circumstances was more sensitive than that of the Applicant’s emails and the outcomes for such breaches not presented in the circumstances that are any disciplinary form of outcome was provided. The Applicant’s work history and the regional nature of the location of the Mine and the economic impact has been considered in addition to the harsh and unjust aspects of significantly more travel time imposed further time away from family and caused additional disruption. The dismissal has had a significant impact on the personal and alternative employment circumstances for the Applicant.

In taking into account all of the facts and circumstances; I intend to order reinstatement, with the discount of wages for the interim period, in recognition of the facts and circumstances as set out in this Decision with reference to the applicant seeking email addresses and sending email even though the circumstances as presented to her were that she had no alternative.

Accordingly, given that the order is to be made under section 391(1) of the Act, this order of reinstatement is associated with the prior applicable terms and conditions of employment in the broadest sense of those terms.[66]

The exercise of the discretion in relation to the maintenance of continuity of service (section 391(2)) and the potential for an order to restore lost pay (section 391(3)) are also considered. However as stated in the circumstances, I consider that is appropriate to make an order for the continuity of service as per section 391(2) of the Act. I have also considered the period of time since the dismissal and the relevant considerations to section 391(3) on the facts and circumstances. Taking into account that the Applicant in her evidence indicated that there was an opportunity to hold off sending the email. I have also indicated that this work was not part of the core duties of role of the, nor was she trained in the use of emails and therefore the lack of guidance provided by the employer exacerbated this situation.

In all of the circumstances, I have considered the submissions on the Applicant’s interim earnings and related matters and that the Applicant has conceded in retrospect that she could have reviewed sending the email at that time. However, it is recognised that the Applicant was subject to some pressure in terms of informing the workforce regarding the manner of which they could order the workshirts for the fundraiser and pressure in terms of the urgency she felt due to the condition of her ill colleague. I have also considered the Respondent’s submissions regarding the nature of the breach and the proper operation of privacy of employee’s email addresses and two the Respondent’s business and the proper observance of protocol in relation to confidential information. However, it also must be taken into account that more senior employees had breached the same provisions without evidence of any sanction and certainly without interruption to the continuity of their employment with the employer. The stop on wages for the interim period serves as a deterrent for other breaches of the procedure or policies at the workplace. In recognition of the range of matters as referred to in the reasons, I decline to make an order restoring lost remuneration.

Conclusion

For the aforementioned reasons, the dismissal of the Applicant was not for a valid reason and was harsh, unjust, and unreasonable within the meaning of the Act. Taking into account all of the facts and circumstances of the matter, an Order for reinstatement and continuity of service will be issued. For the reasons as set out an Order for the continuity of wages will not be issued. However, the wages paid in lieu of notice are not recoverable by the Respondent. This position takes into account the Applicant’s recognition that she progressed the fundraiser email to employees with the employee email addresses visible to all recipients. However, the circumstances for progressing the communication were explained on the basis of the need then to provide the fundraiser ordering information to employees and acknowledged the condition of the ill colleague. The Applicant’s position takes into account her recognition of the difficulties with the resultant email. However, the position developed due to the lack of support, received from Management who had authorised the fundraiser but did not respond to the Applicant’s inquiries at the critical time. This left the Applicant without guidance and the need to act unilaterally in relation to a time sensitive matter. The Applicant’s steps in finalising the ordering platform, resulted in a successful fundraiser that also met the obligations of the employer.

A separate Order to this effect [PR789644] will issue.

COMMISSIONER

Appearances:
Mr Chris Newman for the Applicant
Mr Troy Spence of counsel for the Respondent

[1] M People Employment Agreement 2022 [2022] FWCA 4440.

[2] Exhibit 3, Respondent’s materials.

[3] PR785832.

[4] Transcript at PN727.

[5] [2014] FWCFB 1663.

[6] R’s Form F3, Para [1]-[3] Pg 202 of the DHB; Exhibit 1 Statement of Rebecca Callow Pg 38 of the DHB [3].

[7] A’s Form F2 Para [2], Pg 7 of the DHB; Exhibit 1 Statement of Rebecca Callow Pg 41 of the DHB [32].

[8] Exhibit 1 Statement of Rebecca Callow Pg 41 of the DHB [24]-[31].

[9] Exhibit 1 Statement of Rebecca Callow Pg 41 of the DHB [27]-[31].

[10] R’s Form F3 Para [15], Pg 204 of the DHB; A’s Form F2 Para [4], Pg 7 of the DHB.

[11] A’s Form F2 Para [4], Pg 7 of the DHB.

[12] R’s Form F3 Para [15], Pg204 of the DHB.

[13] A’s Form F2, Pg 7 of the DHB Para [5]; A’s Subs; RC-13, Pg 132 of the DHB.

[14] A’s Form F2, Pg 7 of the DHB Para [5]; A’s Subs; RC-13, Pg 132 of the DHB.

[15] A’s Form F2, Pg 7 of the DHB Para [6]; RC-14, Pg 146-149 of the DHB.

[16] R’s Form F3 Para [18], Pg 205 of the DHB

[17] R’s Form F3 Para [18], Pg 205 of the DHB

[18] R’s Form F3 Para [19], Pg 205 of the DHB; Exhibit 5 Statement of James Cann Pg 316- 317 of the DHB [4]-[5].

[19] Exhibit 5 Statement of James Cann Pg 318 of the DHB [9].

[20] Exhibit 1 Statement of Rebecca Callow Pg 46 of the DHB [65]; RC-15 Pg 150 of the DHB.

[21] Exhibit 5 Statement of James Cann Pg 320 of the DHB [12]; Exhibit 1 Statement of Rebecca Callow Pg 46 of the DHB [68].

[22] Exhibit 1 Statement of Rebecca Callow Pg 46 of the DHB [68]; RC-16 Pg 151-152 of the DHB; Annexure JC-07 Pg 345-346 of the DHB.

[23] Exhibit 5 Statement of James Cann Pg 320 of the DHB [13].

[24] Exhibit 1 Statement of Rebecca Callow Pg 47 of the DHB [70]; RC-17; Exhibit 5 Statement of James Cann Pg 320 of the DHB [14]; Annexure JC-08 Pg 347-352 of the DHB.

[25] Exhibit 1 Statement of Rebecca Callow Pg 47 of the DHB [70]; RC-17; Exhibit 5 Statement of James Cann Pg 320 of the DHB [14]; Annexure JC-08 Pg 347-352 of the DHB.

[26] RC-18 Pg 156 of the DHB.

[27] RC-18 Pg 159 of the DHB; Annexure JC-09 Pg 353 of the DHB.

[28] Exhibit 4 Statement of Mr Michael (Mick) Schafferius para [2] [3] and [5], Page 397 of the DHB.

[29] Exhibit 4 Statement of Mr Michael (Mick) Schafferius para [6], Pg 398 of the DHB.

[30] Transcript at PN840- PN853.

[31] Exhibit 5 Statement of Mr James Cann para [1], Pg 316 of the DHB.

[32] Exhibit 5 Statement of Mr James Cann para [2], Pg 316 of the DHB.

[33] Exhibit 5 Statement of Mr James Cann para [2], Pg 316 of the DHB.

[34] (1995) 185 CLR 410.

[35] Ibid at 465.

[36] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

[37] Ibid.

[38] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.

[39] Exhibit 5 Statement of James Cann Pg 322 of the DHB [17].

[40] Exhibit 1 Statement of Rebecca Callow Pg 47 of the DHB [71]; RC-17 Pg 153-158 of the DHB; Exhibit 5 Statement of James Cann Pg 322 of the DHB [17];

[41] Exhibit 1 Statement of Rebecca Callow Pg 47 of the DHB [71]; RC-18 Pg 159-160 of the DHB; Exhibit 5 Statement of James Cann Pg 322 of the DHB [18]; Annexure JC-09 Pg 353-354 of the DHB.

[42] RC-18 Pg 159 of the DHB; Annexure JC-09 Pg 353-354 of the DHB.

[43] Transcript at PN840.

[44] Exhibit 5 Statement of James Cann para [10(b)] Pg 319 of the DHB.

[45] It is noted that in the Applicant’s Final Submissions that Mr Schafferius has been incorrectly spelt.

[46] Applicant’s Outline of Submissions, Pg 34 of the DHB.

[47] Pg 14 of Employee Handbook.

[48] Applicant’s Outline of Submissions, Pg 33-34 of the DHB.

[49] RC-21 Pg 165-173 of the DHB; RC-22 Pg 174-182 of the DHB.

[50] Applicant’s Outline of Submissions, Pg 34 of the DHB.

[51] Office of the Australian Information Commissioner, ‘Your personal information’ (Web page) < Office of the Australian Information Commissioner, ‘What is personal information?’ (Web page) <

[52] Office of the Australian Information Commissioner, ‘What is personal information?’ (Web page) < Miller v University of New South Wales [2003] FCAFC 180 at [13].

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

[55] [2021] FWCFB 3457.

[56] Applicant’s Reply Submissions Pg 191-192 of the DHB. The Respondent submitted (Pg 314 of the DHB) that the Applicant’s disciplinary history should be taken into account pursuant to s.387(h) of the Act.

[57] Fair Work Act 2009 (Cth) s.387(d).

[58] Fair Work Act 2009 (Cth) s.387(e).

[59] Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

[60] Fair Work Act 2009 (Cth) s.387(f).

[61] Fair Work Act 2009 (Cth) s.387(g).

[62] Exhibit 5 Statement of James Cann Pg 321 of the DHB.

[63] [2014] FWCFB 1949.

[64] AIRC Print Q1625, 5 June 1998, per Ross VP, Polites SDP and Hoffman C.

[65] [2014] FWCFB 7198.

[66] Blackadder v Ramsay Butchering Services Pty Ltd [2005] HCA 22, see in particular McHugh J at par 14.

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