Robert Bodel v Glenorchy City Council
[2012] FWA 2002
•7 MAY 2012
Note: An appeal pursuant to s.604 (C2012/3939) was lodged against this decision.
[2012] FWA 2002 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert Bodel
v
Glenorchy City Council
(U2011/13449)
COMMISSIONER LEWIN | MELBOURNE, 7 MAY 2012 |
Application for unfair dismissal remedy - valid reason – objective evaluation - serious and willful misconduct - employee attitude - procedural fairness - re-instatement inappropriate - compensation - contingencies - contributory misconduct.
[1] This decision concerns an application made by Mr Robert Bodel under section 394 of the Fair Work Act 2009, arising out of the termination of Mr Bodel’s employment with the Glenorchy City Council (Council).
[2] At the time of the termination of Mr Bodel’s employment, he was employed as a multi-skilled labourer in the Roads and Construction Department of Council. Mr Bodel commenced as an employee of Council in September 2008. Mr Bodel worked for Council through a labour hire company for around 18 months prior to the commencement of the employment. The employment was terminated by Council on 4 November 2011.
[3] Mr Bodel worked as part of a team engaged in construction and maintenance works on the roads and footpaths of Glenorchy, a suburb of Hobart in Tasmania. The team was mostly of three people and occasionally of four. The team leader was Mr Tegg, to whom Mr Bodel immediately reported. A Mr McDougall, the Works Supervisor, managed the team.
[4] The team used a truck equipped with a crane and a front end loader as the major pieces of capital equipment for their work. In addition they used various forms of equipment and hand tools as is commonly necessary for the work.
[5] The reason for the termination of Mr Bodel’s employment was his fitting of a device called an inverter to a newly acquired truck, by attaching the inverter to the solenoid of the crane of the truck.
[6] There is no dispute that Mr Bodel is a person who was protected from unfair dismissal when the employment was terminated by Council. The application was heard at Hobart. Mr Champion of Counsel appeared for Mr Bodel and Mr Collinson, a solicitor, appeared for Council. The following persons gave evidence:
Mr Robert Bodel | Applicant |
Mr Garry Fisher | Mobile Crane Operator, Council |
Mr Geoffrey Tegg | Team Leader, Roads and Construction Department, Council |
Mr Lee Evans | Fleet Management Coordinator, Council |
Mr Shane Browning | Work and Services Team Leader, Council |
Mr Paul Tapping | Team Manager - Fabrication, Webster’s trucks. |
Mr Richard Lightfoot | Consultant Engineer, Casconsult Engineers |
Mr Matthew Browning | Fleet and Workshop Officer, Council |
Mr Philip Donoghue | Workshop Mechanic, Council |
Mr Joshua Munnings | Former HR Coordinator, Council |
Mr Emilio Reale | Manager, Works and Services, Council |
Mr Stefano Conforti | Civil Construction Engineer, Council |
Mr Gary Barnes | OH&S Officer, Council |
Mr Anthony Green | Labourer, Council |
[7] Mr Bodel’s application alleges that the termination of his employment was harsh, unjust and unreasonable. Under s387 of the Act, the Tribunal must take into account the following for the purpose of considering the application:
“s387
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.” 1
Valid Reason
[8] In considering the validity or otherwise of the reason for the termination of Mr Bodel’s employment it is useful to set out the terms of the letter of termination dated 4 November 2011.
“Dear Robert
Your employment with Glenorchy City Council:
I refer to our letter dated 27 September 2011 regarding the outcome of our investigation in which it was found that:
(a) You had requested an inverter be fitted to truck GC016;
(b) That the request was refused by the Fleet Management Coordinator and the Fleet Workshop Officer on the basis that no Council vehicles were fitted with inverters as they posed a serious safety risk;
(c) You performed the installation without authorisation;
(d) You do not hold any qualifications to install electrical equipment into vehicles or any other item of plant or equipment; and
(e) You incorrectly wired the inverter causing electrical damage to the crane.
On 18 October 2011, Mr Weissman of the ASU responded in writing on your behalf and Mr Weissmann and you met with Council on 24 October 2011 in relation to your response, following which Council gave further consideration to your responses.
Findings
You had requested an inverter be fitted to truck GCC016 which was refused by the Fleet Management Coordinator and the Fleet Workshop Officer on the basis that no Council vehicles were fitted with inverters as they posed a serious safety risk.
This was denied and it was put that the request came directly from shop floor employees, as outlined in several statements given to the ASU by GCC employees. That it was commonplace, custom and practice for
(page 1)
inverters to be fitted to enhance the overall operation and effectiveness of employees in the field.
The rationale behind the fitting was employees identifying a need for an inverter due to work requirement associated with Strathaven Drive. No generators were available, and employees had no means of charging equipment without returning to the depot up to six times per day.
We do not accept this. You did not initially deny requesting that an inverter be fitted. Mr Browning, Fleet and Workshop Officer is adamant you raised the issue of inverters on several occasions in February this year and he referred you to Mr Evans, Fleet Manager. Mr Evans stated you approached him during the new truck deliveries whether inverters would be installed and he advised you that this would not occur and outlined the safety concerns. In April 2011 you raised the issue again with Mr Browning who then reinforced the Fleet Manager’s decision to you.
Council considers these statements to be consistent and reliable and you have not specifically denied them other than Mr Weissmann recently refuting them on your behalf. There is no conflict of interest or motive for them to be falsely made. Our enquires do not reveal any widespread request to provide an inverter for Strathaven Drive Mr Weissmann has refused to provide any statements to the contrary that he says he has obtained.
Council is therefore satisfied that you were specifically told on a number of occasions that there were to be no inverters installed into the new fleet and the safety concerns behind this decision. You were in no doubt that the request was refused by the Fleet Management Coordinator and the Fleet Workshop Officer on the basis that no Council vehicles were fitted with inverters as they posed a serious safety risk.
You performed the installation without authorisation
The installation is not denied but Mr Weissmann on your behalf stated that the mechanic, Mr Donoghue and you installed the inverter and the mechanic provided the following:
(a) Assisted in finding the correct terminals with the multi meter;
(b) Identified the correct terminals;
(c) Connecting an in line fuse holder with 25amp fuse;
(d) Screwing in the inverter into the toolbox; and
(e) Provided self-adhesive cable ties.
Mr Weissmann also stated that no request forms to your knowledge were completed, which should have occurred, but that the procedure and
(page 2)
process of filling out the receipt of fleet management requests are enforced haphazardly.
Mr Donoghue denies assisting you finding the correct terminals with the multi meter or identifying the correct terminals. He states he did screw the inverter into the toolbox and provide self adhesive cable ties because this was at your request and wanted to prevent any electrical shorts. Mr Donoghue was unaware that you had been advised that the inverter was not to be installed. Mr Donoghue provided you with an in line fuse holder because he thought it was for your personal use.
Regardless of the level of assistance that was provided, Council is satisfied that you had decided to cause an inverter to be fitted, had taken steps to do so yourself and had then caused this to be completed by seeking assistance. You did so knowing this was contrary to Council’s direction, which is why you did not complete a request form or make any attempt to follow any proper processes. You were aware Council would not have approved this and that it is not within your duties to install an inverter or even to cause it to be installed.
You do not hold any qualifications to install electrical equipment into vehicles or any other item of plant or equipment.
This was accepted by you. For the reason above, your argument that you did so under supervision and hence it was authorised is rejected.
You incorrectly wired the inverter causing electrical damage to the crane
You hard wired the inverter which caused damage to the crane. Council accepts Webster’s report which was provided to you.
Outcome of investigation
Council is satisfied that your actions constitute serious misconduct. You have deliberately caused the installation of an inverter in the knowledge that Council prohibited this on safety grounds. You did so in a manner to avoid detection, which resulted in an unsafe installation, and created an unacceptable safety hazard and resulted in property damage creating a reportable incident.
You have no regard for Council directions or complying with its processes. You have also demonstrated a cavalier approach to health and safety, which could have caused an injury to yourself or others in the workplace. Unfortunately this attitude towards health and safety led to your removal as an Employee Safety in February 2011 following poor
(Page 3)
safety behaviours on your part, which you have obviously not learned from.
Rather than accept any responsibility for your wrongdoing, you have chosen through your representative, to deny any responsibility and instead accuse Council of breaching safety legislation. In these circumstances, your serious misconduct and chosen response has resulted in a loss of trust and confidence in you and warrants dismissal.
Your employment will be terminated immediately. Whilst any mitigating circumstances do not outweigh the decision to terminate your employment, a payment of three (3) weeks wages will be made in lieu of notice despite Council having no obligation to do so.
Such payment will be made upon confirmation by Council that you have returned any and all items of property belonging to Council, with the exception of your safety boots. All Council badged items including all Council issued PPE, keys etc must be returned to Council Works Centre reception by close of business on Monday 7 November.
Should you have any queries, please do not hesitate to contact me.
Yours sincerely
Sue Buckland
EXECUTIVE MANAGER CORPORATE SERVICES” 2
(page 4)
[9] It is first necessary to describe an inverter. The device is of wide and common usage and this was not disputed in the proceedings. The function of an inverter is to transform an electrical current from a source so as to be suitable for use by a tool or device which could not or would not operate using the electrical current from its original form or level. The device is light and easily cradled in one hand. It was used to enable the recharging of tools used by Mr Bodel’s team on site, such as hand held drills.
[10] The use of inverters and in fact the installation of inverters in trucks operated by Council was not entirely novel, it was the case in one truck, at least, prior to the acquisition of the new truck for Mr Bodel’s team. The evidence of Mr Tapping, of the firm Webster’s, which supplied Council the truck is that other public authorities have inverters fitted to their trucks.
[11] The evidence is also sufficient to conclude without doubt that Mr Bodel had previously purchased the inverter which he fitted to the newly acquired truck with permission of Council for use by the team, with a Council purchase order. The inverter had been used in the course of the construction and maintenance work of the team prior to the acquisition of the new truck.
[12] Mr Bodel gave evidence that prior to the acquisition of the new truck, the inverter had been connected by using alligator clips attached to the battery of the old truck and on one job he had connected the inverter by another means, which was referred to as “hard wired”.
[13] While all of the contents of the letter of termination are relevant to the reason for the termination of Mr Bodel’s employment, some observation of emphasis may be made. Although the terms “outcome of investigation” are used at the outset of the letter of termination and toward the end, I think the proper construction is that the first reference is to an investigation into the “fitting” or “installation” of the inverter, to which Mr Bodel was given an opportunity to respond first by letter on his behalf from his union and later in person. The second reference, which follows the heading on Page 3, is the decisional outcome of the investigation taking into account Mr Bodel’s response to the original investigation and its findings. This part of the letter of termination represents a summary of the final outcome of all of Council’s enquires into and investigation of the cause of a failure of the crane on the newly acquired truck because of damage to the solenoid, for which it blamed Mr Bodel.
[14] Accordingly, it seems to me that the heading “Outcome of investigation” on page 3 of the letter of termination is a summary encapsulation of the reasons for the termination of Mr Bodel’s employment. It is therefore convenient to commence with an analysis of the reasons expressed therein.
[15] The first paragraph can be broken down into various components:
1. Mr Bodel’s conduct was serious misconduct;
2. Mr Bodel’s actions were wilful and prohibited;
3. Mr Bodel acted deceptively;
4. The installation of the inverter was unsafe;
5. Mr Bodel created a potential safety hazard; and
6. Mr Bodel caused damage to Council property (which the evidence reveals refers to the crane of the newly acquired truck).
[16] The second paragraph can be broken down in a similar fashion:
7. Mr Bodel disregarded directions;
8. Mr Bodel disregarded appropriate procedure;
9. Mr Bodel demonstrates a “cavalier” approach to safety with potential for injury to others; and
10. Mr Bodel was removed as an OHS representative in 2011 for poor safety behaviours.
[17] The third paragraph breaks down as follows:
11. Mr Bodel failed to accept responsibility; and
12. Council has lost trust and confidence in Mr Bodel.
[18] I will address each of these reasons for the termination of Mr Bodel’s employment in turn.
Serious Misconduct and deliberate disobedience of a prohibited action (1 and 2)
[19] This conclusion must be considered in context. Most relevantly but not entirely, the contextual consideration would seem to be whether Mr Bodel wilfully disobeyed a prohibition on the installation of the inverter in the newly acquired truck. In my view, the second sentence of the first paragraph under the heading “Outcome of investigation” on page 3 of the letter of termination is, in effect, an explanation for the conclusion that installing the inverter constituted serious misconduct, among other things.
[20] In light of the above it is necessary to make a finding in relation to the prohibition against which Mr Bodel is said to have acted. Council submits that, looked at objectively, evidence of discussions between various persons leading up to Mr Bodel’s installation of the inverter in the newly acquired truck “was to expressly prohibit the Applicant (Mr Bodel) from installing the inverter into the new vehicle”. 3
[21] There was considerable conflict in the evidence concerning conversations that Council submitted had comprised the express prohibition of Mr Bodel’s installation of the inverter, as between Mr Bodel and three others: Mr Mathew Browning, Mr Lee Evans and Mr Shane Browning.
[22] In order to deal with this conflict it is necessary to say something about Mr Shane Browning’s evidence.
[23] I accept Mr Champion’s submission concerning Mr Shane Browning’s evidence. I find Mr Browning’s evidence unreliable. While I do not doubt that Mr Shane Browning believes he had conversations with Mr Bodel about the subject of the inverter this has no corroboration and there is evidence of witnesses nearby to the effect of that no such conversations took place, in addition to that of Mr Bodel, who denies such conversations took place. Moreover, on my reading of the witness statement of Mr Shane Browning it alleges a plurality of conversations in which he told Mr Bodel that inverters were not to be installed in the newly acquired truck. Yet his original statement to Council during the investigation is much briefer overall than the witness statement in the proceedings and alleges one conversation at a time when his memory would have been fresher. Mr Shane Browning is Mr Mathew Browning’s father. It is possible Mr Shane Browning wishes to accord with the tenor of the evidence of his son. Moreover, looked at carefully, Mr Shane Browning’s witness statement seems to suggest an indefinite plurality of such conversations, which I find inherently improbable in the context of the evidence. I find the expansion of Mr Shane Browning’s evidence of the number of conversations concerning the alleged prohibition of the installation of the inverter sufficiently disturbing to be unable to accept his evidence generally in this respect.
[24] I also have doubts about the precision of Mr Evans’ evidence in this respect which causes me to conclude that the relevant conversation between him and Mr Bodel concerning the installation of an inverter in the newly acquired truck was briefer and less clear and conclusive than Mr Evans’ witness statement attests to. The context in which these conversations took place was of enquires by Mr Bodel as to whether the new truck would come with an inverter already installed. The advantage of installing an inverter would be the removal of the necessity to connect and disconnect the inverter each time it was required to recharge tools. Mr Bodel was informed that the new truck would not have an inverter installed. Mr Evans says he mentioned that he had safety concerns about the installation of an inverter. Mr Bodel says that he had no recollection of Mr Evans saying so.
[25] Mr Evans gave evidence of an Alert 4 he became aware of issued by Workplace Standards Tasmania, which he says was on his mind when specifying the new truck. It is pertinent that the Alert was about the use of inverters in the workplace and made no specific mention of the means by which they are powered or connected. I will return to this subject.
[26] On my view of the evidence, in the circumstances in which Mr Bodel and Mr Evans had their relevant conversation it was likely brief and did not involve any specific discussion of the safety Alert and did not involve prohibitive language which formed a direction from Mr Evans to Mr Bodel of his subsequent action in connecting the inverter to the solenoid of the newly acquired truck.
[27] The nature of the conversation was about whether the truck would come with a factory or supplier fitted inverter as a part of its specification. At the very least, I am prepared to accept that if Mr Evans did mention safety it was by way of an explanation of why the truck would not come so installed in a brief passing conversation, for reasons elaborated below. I am also prepared to accept that Mr Bodel did not hear this part of Mr Evans answer, if indeed it was uttered.
[28] In my view, the evidence of Mr Mathew Browning is insufficient to ground a finding that he expressly prohibited the installation of an inverter in the newly acquired truck.
[29] I have concluded that when Mr Bodel went about installing the inverter, which had been previously acquired and used on the old truck, in the newly acquired truck, he did so openly and sought out assistance in the process. When asked if he had done so by Council he was straight-forward and unhesitating in his affirmative answer. Such conduct is contrary to any awareness that he had been directed by Mr Evans that the inverter was not to be installed and that he was acting contrary to a direction or an express prohibition. In my view, it is inherently more probable than not that either Mr Bodel was not given an express direction not to fit the inverter, or to the extent that it was implied, he either did not hear the relevant words or misunderstood. There is no suggestion that Mr Evans said to Mr Bodel that the inverter could not continue to be used by connection using the alligator clips to the battery of the newly acquired truck.
[30] It is also worthy of note that awareness of the Alert referring to the use of inverters in the workplace did not rise to the level of an instruction that inverters not be used by Council employees. In fact they continued to be used and no action was taken by Council to cause the practice to cease. The issue in this matter does not concern the use of inverters contrary to the alert and is confined to the connection by Mr Bodel of the inverter to the solenoid of the crane of the newly acquired truck which was used by Mr Tegg’s team. This suggests that the conversations which took place relevant to this aspect of the matter were focussed on what would be included in the supply specifications for the new truck rather than discussions of the safety of inverters.
[31] As work practices with inverters generally did not come under any active prohibition, what is significant in this respect and worthy of note at this stage is that Council concluded that Mr Bodel caused damage to the solenoid of the crane of the newly acquired truck, because he connected the inverter to that component of the crane mechanism in a manner which caused damage. This was based on Council’s view of the effect of the choice of terminals to which the positive and negative leads were connected.
[32] It is reasonable to assume that Mr Evans would have been dissatisfied with the damage to the crane and dissatisfied with Mr Bodel, given the attribution of the cause of the damage to him, because when he fitted the inverter to the solenoid Council and Mr Evans believed he had chosen the wrong terminals. This dissatisfaction arose from views expressed by the company which supplied the truck to Council, which attributed the damage of the crane to a technically faulty connection to the terminal of the solenoid of the crane. Mr Evans would have reasonably been concerned that he had no knowledge that this had been done, given his views of what he believed he had communicated to Mr Bodel.
[33] However, on the evidence before me and for the reasons set out above, I am satisfied that Mr Bodel did not wrongly defy a direction concerning the installation of the inverter. Moreover, I note that over the time of Mr Bodel’s employment there is no history of any insubordination. On the contrary, Mr Tegg, Mr Bodel’s team leader, who was an impressive and in my view wholly open and honest witness, said this of Mr Bodel in his witness statement: “Robert was always an excellent worker, his work ethic is good and I have never had any concerns with his work”; 5 under cross examination Mr Tegg said as follows: “Well, yes, we got along fine. But he always did what I asked him to do”.6
[34] All in all, whether because Mr Evans did not mention any prohibition on the use or installation of the inverter or because Mr Evans said something which was ambiguously related to whether the new truck would come with an inverter installed or whether Mr Bodel did not hear anything which could be reasonably construed as a prohibition on the subsequent installation of the inverter, I am not satisfied that Mr Bodel acted in defiance of an express instruction. Consequently, whatever the characterisation of Mr Bodel’s installation of the inverter should properly be, it was not in my judgement an act of serious and wilful misconduct comprised of knowing insubordination.
Deception (Avoidance of detection)
[35] In this respect, it might first be observed that, at the commencement of the letter of termination, Council set out the matters referred to as “the outcome of our investigation” in a series of paragraphs (a) - (e) to which Mr Bodel was invited to reply. There is no mention in those findings of avoidance of detection in the way in which Mr Bodel installed the inverter in the newly acquired truck.
[36] The relevant conclusion of deliberately deceptive conduct seems to arise from paragraphs under the heading “You performed the installation without authorisation” at pages 2 and 3 of the letter of termination and rests on the fact that Mr Bodel did not follow a documented procedure known as a “work order”.
[37] On the evidence before me I am satisfied that such procedures are not always followed. Indeed the mechanic who provided some assistance to Mr Bodel with aspects of the installation of the inverter was obviously of the view that the job he performed did not need a work order. Mr Bodel said that he had no knowledge of this work order system and Mr Evans conceded that there was no system of training employees in the documentation of work orders. I am satisfied that the need or procedural requirement for a work order for the job did not form any part of Mr Bodel’s consideration of the installation of the inverter. He openly approached a workshop mechanic for assistance which was readily forthcoming without any discussion of work orders or documentation. He was not, by doing so, seeking to avoid detection. Moreover, in my view, the installation of the inverter was in Mr Bodel’s view simple, he sought assistance from a workshop mechanic for a very simple and straight forward task related to the installation, which in the context of the workplace and the absence of any training in work orders would have seemed undemanding, taken little time and seemed unlikely to require any documentary recording. Having regard to these considerations, I am unable to be satisfied of any deliberate act or forethought designed to “avoid detection” on Mr Bodel’s part. In my judgement, Mr Bodel was acting impulsively, to do what he thought would be an efficient and productive installation for the work of the team.
[38] I also note Council’s written submissions concerning alleged deceptive conduct engaged in by Mr Bodel when installing the inverter. The alleged deception is not elaborated. Rather, it is submitted, Mr Bodel was remiss in not following the appropriate procedure of completing the work order. The submission of Council in this respect, is as follows:
“The Applicant had no regard to the system of works orders. To say he was unaware is not to the point. The Applicant ought to have been aware. Mr Tegg would complete works orders for other crew members such as Mr Green. The PD also refers to completing work orders as a key responsibility. If the Applicant had made any attempt to obtain approval to install the Inverter through his superiors the processes would have been followed.” 7
[39] In my view, this submission is correct in that Mr Bodel should have been so aware and despite the apparent variability of the use of work orders, a meticulous approach would have required one. Mr Bodel should have followed the procedure, however, in the relevant circumstances this failure was not constructively deceptive in nature and the submission does not rise high enough to make out such deceptive conduct relied upon in the letter of termination as a reason for the termination of Mr Bodel’s employment.
Unsafe (4 and 5) and Damage to Council Property (6)
[40] There was expert evidence about the effects of the way in which Mr Bodel connected the inverter to the terminals of the solenoid of the crane of the newly acquired truck. The evidence in this respect was given by Mr Lightfoot and Mr Tapping.
[41] Mr Lightfoot gave evidence as an expert witness called by Mr Bodel. Mr Tapping is employed by Webster Truck Services which supplied the newly acquired truck. Mr Tapping is a qualified engineering technologist who holds a bachelor degree in manufacturing technology and an associate diploma in mechanical engineering. 8 I accept Mr Tapping gave evidence both as to facts and as an expert. Mr Lightfoot is a consulting engineer in his own consulting practice, Casconsult Pty Ltd.9 Mr Lightfoot has a Bachelor of Mining Engineering and holds diplomas in civil, electrical and mechanical engineering.10
[42] I do not intend to traverse all of the technical evidence concerning the installation of the inverter. To the extent that there is any conflict in the evidence of Mr Lightfoot and Mr Tapping, I prefer the evidence of Mr Lightfoot in relation to the technical aspects of the installation and the consequences for the serviceability of the crane on the newly acquired truck. In particular, I accept Mr Lightfoot’s evidence in relation to the likely cause of the damage to the crane mounted on the truck, in particular the solenoid and its safety.
[43] I make the following findings on the evidence before me:
a) It would be technically preferable to install an inverter by connecting the inverter to the terminals of the truck’s battery, rather than connection to the solenoid of the crane. However, connection in the manner established, more probably than not, was of no consequence to the serviceability of the crane.
b) There is no available inference that the installation of the inverter breached any relevant safety regulation. On the contrary, the evidence is convincing that it did not.
c) The evidence is convincing that the definitive cause of the failure of the crane solenoid would require an investigation which has not been conducted.
d) Other new Council trucks have experienced crane solenoid failures without installed inverters.
e) I accept Mr Lightfoot’s evidence that there is a reasonable likelihood that the failure of the crane solenoid on the newly acquired truck can be attributed to insufficient power availability caused by the running of beacon lighting.
(f) I am satisfied that there was no serious safety hazard caused by the installation of the inverter.
(e) There is no objective basis for a sound finding that the installation and/or the manner of installation of the inverter by Mr Bodel caused the failure of the solenoid of the crane.
Disregard for direction and non-compliance with procedure (7 and 9)
[44] These matters, in my view, must refer to the assertion that Mr Bodel disregarded express directions prohibiting the installation of the inverter by Mr Evans and the fact that Mr Bodel did not complete a work order document. Both have been dealt with above. They are essentially repetitive reasons for the termination of Mr Bodel’s employment.
A “cavalier” approach to safety
[45] This reason would seem to be a compound of three matters which can be referred to as follows:
(i) the truck “hopping/braking” matter;
(ii) the “chaps” matter;
(iii) the inverter matter. 11
[46] The inverter matter can be readily dispensed with by reference to the analysis of the safety issue above. The installation posed no serious safety risk. The inverter operated without any safety issue arising which can be reasonably attributed to its installation. I consider it more probable than not that the crane stopped working for the reasons advanced by Mr Lightfoot.
[47] Proceeding in reverse order, the “chaps” incident was comprised of Mr Bodel at the relevant time not wearing chaps whilst operating a chainsaw. The availability of this protective equipment at the relevant time is in contest.
[48] The truck “hopping/ braking” incident was the subject of a counselling session and the evidence of whether Mr Bodel was “hopping” the truck or superfluously operating the air brakes for his own amusement in the Council depot is in contest.
[49] Whatever the facts were, I find Mr Bodel’s operation of the truck which gave rise to this counselling was inappropriate and worthy of reprimand. Either way the counselling was entirely appropriate.
[50] Mr Champion made the following submission in relation to the truck “hopping/ braking” matter:
‘A False Issue - The 2 March 2011 incident - inappropriate driving
79. Part of the Respondent’s case was that the wiring of the inverter “occurred in the context of the applicant’s cavalier attitude towards health and safety, that he does not like to accept directions and likes to do things his way.”
80. This part of the Respondent’s case was built on an incident on 2 March 2011 in which Mr. Barnes gave evidence that he “observed Robert [Bodel] “kangaroo hopping” a council truck,….”
81. Mr. Bodel’s evidence was that he “tapped the accelerator and set the exhaust brake off” Mr. Bodel denied that he “kangaroo hopped” the vehicle.
82. Retrospectively, the Respondent has attributed a significance to this incident that it never had at the time. It was an isolated incident over four years of engagement with Council which is insufficient to make good the proposition that Mr. Bodel had a “cavalier attitude towards health and safety.”
83. As to the retrospective magnification of the significance of the events on 2 March 2011, Council maintained a discipline policy for its employees which provided a graded process depending on the significance of any disciplinary breach by an employee. Mr. Reale, the senior manager present at a meeting on 3 March 2011 about what had happened the day before, acknowledged that it was “not an incident of sufficient seriousness to even warrant the invocation of the first step of the [discipline] policy.”
84. Mr. Bodel whilst maintaining his position that the incident was minor in character accepted that he had done the wrong thing. Rather than demonstrating a cavalier attitude to health and safety, the file note of the meeting recorded that Mr. Bodel “showed repentance for his behaviour and understood that his behaviour was not to reoccur.” The meeting notes also noted that Mr. Bodel was “highly regarded from productive point of view.” The note concluded with the observation that: “the meeting should not leave Robert [Bodel] with bad feelings, but rather, stimulate him to become a team leader of the future.”
85. In June 2011, 4 months after this meeting, Mr. Bodel was told that he had met the requirements of the Council performance review, received a pay rise and was promoted in classification under the terms of the Award. As a result, Mr. Bodel was not an employee who before the Inverter incident could have reasonably be expected to have known that his employment was in jeopardy.
[51] I find this submission cogent and persuasive, it somewhat refutes reliance upon that incident as exemplary of a “cavalier” attitude to safety.
[52] It is noteworthy that this matter seems to have been added to the findings of the intial investigation which appear at the commencement of the letter of termination to which Mr Bodel was required to respond. That of itself does not mean the reason is not valid or cannot be relied upon.
[53] However, in my judgement, quite apart from aspects of procedural fairness which will be dealt with separately below, the over determination of the alleged “cavalier approach to health and safety” as a valid reason for the termination of Mr Bodel’s employment, in all the circumstances, is relevant as a consideration of the validity or otherwise of the compound reasons for the termination of Mr Bodel’s employment.
[54] Mr Bodel’s approach to health and safety cannot be objectively judged as “cavalier” if that is meant to mean a manifestation of a “couldn’t care less” attitude or frequent high risk behaviours. That, in my view, is an exaggeration.
[55] It would seem that Mr Bodel’s approach to health and safety formed part of the reason for the termination of his employment as evidenced by the letter of termination. Mr Bodel is said not to have learned from the event referred to about the truck “hopping/braking” matter. The conclusion that Mr Bodel had not learned from the relevant event arises from various of Council’s assertions in the first paragraph, appearing under the heading “Outcome of investigation” at the bottom of page 2 of the letter of termination, which in my objective judgment contains significant conclusions which are erroneous. Most importantly that Mr Bodel knowingly contravened a prohibition when he installed the inverter and that he caused damage to the crane of the newly acquired truck and a created significant safety hazard. These conclusions in my objective judgement of the evidence before me as detailed above, were substantively wrong or at the very least, significantly overstate the facts.
[56] It is also pertinent in respect of the allegation concerning Mr Bodel’s alleged “cavalier” attitude to have regard to the facts of the earlier events which Mr Bodel is said not to have learned from. The truck “hopping/braking” matter is what is referred to in this respect. It is hard to construe the record of counselling as demonstrating a “cavalier attitude” to safety on Mr Bodel’s part. Moreover, it is clear that the counselling was considered satisfactory. Mr Bodel recognised his error and expressed preparedness to co-operate. This cannot be construed as a warning. However, on my construction of the letter of termination, the matter has been dealt with differently. It has been treated as something like a warning and the installation of the inverter treated as a further transgression in this history of “cavalier” disregard for safety contrary to express direct instructions not to install the inverter. At the very least, this is of questionable objective validity in all the circumstances as a component part of the compound of reasons for the termination of Mr Bodel’s employment, as expressed in the letter of termination.
Failure to accept responsibility
[57] The evidence reveals that the rejection by Mr Bodel of the findings of the investigation of an alleged express prohibition on the installation of the inverter was not unreasonable. Moreover, the installation of the inverter, more probably than not, did not cause the damage to the crane of the newly acquired truck and was not inherently unsafe. Mr Bodel should not be expected to suffer the termination of his employment on disputed grounds and his self defence in these respects was not unreasonable. Mr Bodel did not fail to accept his responsibility in relation the truck “hopping/braking” matter. He contested Council’s conclusion which attributed blame to him for the failure of the crane on the newly acquired truck due to damage to the solenoid. On Mr Lightfoot’s evidence the objective facts bear out the validity of his defence.
Loss of Trust
[58] The loss of trust expressed by Council in the letter of termination in my view arose substantially from two integral matters which could give rise to legitimate concern in Council’s eyes. As Council sees it, Mr Bodel had disobeyed a direct instruction which resulted in damage to the crane of the newly acquired truck. If those facts were both true, loss of trust would have been fully justified. However, I cannot be satisfied that either are true. Rather, as I have found, it is more probable than not that Mr Bodel was not acting contrary to an express prohibition when installing the inverter and the installation of the inverter did not cause the relevant damage.
[59] In my objective judgement of the relevant facts and circumstances as I found them, I am unable to come to an affirmative finding that there was a valid reason for the termination of Mr Bodel’s employment. While I consider Mr Bodel’s conduct installing the inverter falls short of serious and wilful misconduct I find, later in this decision, that the conduct was nevertheless inappropriate. However, in my judgement the conduct as I have found, was not of sufficient gravity to constitute a sound, well founded and defensible reason 12 for the termination of Mr Bodel’s employment in all the circumstances, In this respect, the decision of the Australian Industrial Relations Commission in King v Freshmore (Vic) Pty Ltd13 in which the following is stated is apt:
“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in the termination”. 14
Notification and opportunity to respond
[60] The following submissions were made on behalf of Mr Bodel in relation to the statutory requirement set out below in s387.
“Sub- sections 387(b) – (d)
Sub-sections 387(b) – (d) require the Tribunal to consider whether an applicant was accorded “procedural fairness”.
87. Insofar as the termination of Mr Bodel’s employment was by reason of the alleged unauthorised installation of the Inverter on vehicle GCC-016, Mr Bodel has run his case by reference to issues under section 387(a) and 387(h). He accepts that he was notified of that reason and given an opportunity to respond during the period of his suspension on pay between 12 September and 4 November 2011. He makes no submission that there was an absence of procedural fairness as to that issue.
88. That submission is subject to the following qualification. Part of Ms. Buckland’s letter dated 4 November 2011 which notified Mr. Bodel of the termination of his employment read as follows:
“you had no regard to Council directions or complying with its processes. You have also demonstrated a cavalier approach to health and safety, which could have caused an injury to yourself or others in the workplace. Unfortunately, this attitude towards health and safety led to your removal as an Employee Safety in February 2011 following poor safety behaviours on your part, which you have obviously not learned from.” 15
Support Person
[61] There was no refusal to allow Mr Bodel to have a support person present to assist at any discussion pertaining to the termination of his employment. The evidence is to the contrary and is not disputed.
Unsatisfactory Performance
[62] It is clear enough, I think, that the reasons for the termination of Mr Bodel’s employment were related to Mr Bodel’s conduct. As for the performance of the duties of a multi-skilled labourer the evidence is highly favourable to Mr Bodel.
[63] If, however, the incidents concerning the truck “hopping/breaking” matter and the “chaps” matter are considered under the heading of performance as I have already observed, they did not give rise to anything which could be properly characterised as a warning either generally or within the specific context of Council’s disciplinary procedures.
Size of the Employer
[64] The size of the Council enabled the formalisation of procedures in relation to the termination of Mr Bodel’s employment due to the availability of administrative resources and management policies and procedures.
Absence of a dedicated human resources specialist
[65] The Council employs dedicated human resources management specialist personnel as a matter of course. Consequently, there was no absence of this expertise.
Any other matters
[66] In my view, the questionable compounding of earlier issues in relation to Mr Bodel’s employment with the relevant facts as I have found them in relation to the installation of the inverter and certain erroneous conclusions about the installation, is a relevant consideration for the purposes of determining whether or not the termination of Mr Bodel’s employment was harsh, unjust or unreasonable.
[67] I also consider the length of Mr Bodel’s employment a relevant factor to be taken into account. I consider that Mr Bodel had been employed long enough to have established a good reputation as a productive and reliable multi skilled labourer held in high regard by his team leader and his productivity over the period of his service was widely recognised.
[68] Finally, while I have found that Mr Bodel did not wilfully contravene an express direction not to install the inverter in the newly acquired truck, I find that doing so without express authorisation, despite some limited experience installing electrical equipment in motor vehicles, was a well meaning, impulsive but inappropriate act, lacking judgement.
[69] Mr Bodel’s evidence demonstrated awareness of the sensitivity of making changes to a truck without notification and authorisation as well as the proprietary rights and interests of the Department of Council responsible for the vehicle fleet.
[70] Indeed it seems to me that the issue of appropriate boundaries of responsibility for and management of Council vehicles loomed large in the reason for the termination of Mr Bodel’s employment, particularly having regard to Council’s conclusion that Mr Bodel caused the damage to the crane of the newly acquired truck because of wilful disobedience.
Harsh, Unjust or Unreasonable
[71] In McLauchlan v Australian Meat Holdings Pty Ltd 16the Full Bench of the Australian Industrial Relations Commission determined the approach to be taken under the provisions of the Workplace Relations Act 1996 when determining an application under s170CE(1)(a) of that Act, as to whether a termination was harsh, unjust or unreasonable:
“On the basis of the foregoing we are of the view that in determining a s.170CE(1)(a) application the Commission is bound to consider whether, on the evidence in the proceedings before it, the termination was `harsh, unjust or unreasonable', provided that the evidence concerns circumstances in existence when the decision to terminate the employment was made.
Facts which existed at the time of the dismissal but which only come to light after the dismissal might either:
· justify the dismissal when otherwise it would be harsh, unjust or unreasonable; or
· render the dismissal harsh, unjust or unreasonable.
Findings made by an inquiry established by the employer will be relevant to the Commission's determination of the issues before it provided it is established that:
- the employer conducted a full and extensive investigation into all of the relevant matters as was reasonable in the circumstances;
- the employer gave the employee every reasonable opportunity to respond to allegations; and
- the findings were based upon reasonable grounds.
While such findings are relevant they do not conclusively determine whether the termination was harsh, unjust or unreasonable. That issue is to be decided by the Commission on the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient inquiry, that that employee was guilty of the conduct which resulted in termination.
A termination may be unjust because, on the evidence before the Commission, the employee was not guilty of the misconduct on which the employer acted. Further, a termination may be unreasonable because it was decided on inferences which could not reasonably have been drawn from the material before the employer. Even where the findings of an employers enquiry are reasonable the Commission may conclude that a termination of employment on the basis of those findings was harsh because the penalty was disproportionate to the misconduct [Byrne v Australian Airlines Ltd at 465 per McHugh and Gummow JJ].” 17
[72] I consider this guidance remains relevant to a determination that a person was unfairly dismissed for the purposes of s385 of the Act having regard to the matters to be taken into account under s387.
[73] I have decided that there are overlapping elements of harshness, injustice and unreasonableness in relation to the termination of Mr Bodel’s employment. 18 However, I will not address the relevant issues in that order.
[74] I consider that the attribution of damage to the solenoid of the crane of the newly acquired truck to Mr Bodel lacks an objective foundation in the evidence and to the extent that responsibility for damage to the Council vehicle was attributed to Mr Bodel that was therefore unjust in the circumstances.
[75] I am not satisfied that Mr Bodel wilfully acted contrary to an express direction not to install an inverter in the newly acquired truck. Consequently, to the extent that Mr Bodel’s employment was terminated for reason of serious misconduct of a wilful nature, it was both unjust and unreasonable to do so on the evidence before me, as I find it.
[76] I do not consider that the evidence before me establishes that Mr Bodel demonstrated a “cavalier” attitude to health and safety. In my view, such a pejorative conclusion about Mr Bodel’s attitude to health and safety constitutes an exaggeration of the facts.
[77] Moreover, to the extent that the issues of the truck “hopping/ braking” and “chaps” matters formed part of the reason for the termination of Mr Bodel’s employment they were not matters in respect of which Mr Bodel had an opportunity to respond and consequently this aspect of the termination of Mr Bodel’s employment was unjust and unreasonable.
[78] While I have found that the installation of the inverter in the newly acquired truck was over-enthusiastic and done inappropriately, without relevant authorisation, in my view, in all the circumstances, I consider that termination of Mr Bodel’s employment for this reason would have been harsh. In the relevant context, disciplinary action short of termination including a warning that repetition of impulsive unauthorised acts may lead to termination of Mr Bodel’s employment would have been just, reasonable and not harsh.
Remedy
[79] In considering whether or not to award a remedy and, if so, what that remedy should be, it seems to me that there is nothing of substance before me which could convince me that it would be inappropriate to do so.
[80] It is therefore necessary to first consider whether re-instatement is inappropriate.
[81] In this respect, I have had to consider whether Mr Bodel’s unauthorised installation of the inverter, while not wilfully disobedient, is a consideration of sufficient weight to cause me to consider that re-instatement is inappropriate. I have had to consider Mr Bodel’s evidence and to some, but not a great degree, his demeanour in relation to this aspect of the matter when giving evidence and during the hearing. In my judgement, the issue is one of Mr Bodel’s tendency to act independently, albeit in good faith, without adequate reflection and with insufficient sensitivity to the overall context of his employment.
[82] Clearly one might expect that the experience of the termination of his employment and the difficulties usually associated with mounting proceedings in the Tribunal would have a salutary effect upon Mr Bodel, which could give rise to some reasonable expectation of more restraint and deference. Considerations of Mr Bodel’s tendency towards independent action and the requirement for procedural conformity are finely balanced and require appropriately nuanced judgement.
[83] I have decided that reinstatement is not appropriate. I am not entirely convinced that Mr Bodel will effect the necessary level of modification of his inclination to act independently on his own judgement on a sustained basis.
[84] I have therefore decided to make an order of compensation. In doing so I will have regard to the relevant statutory considerations identified below:
“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), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.
Misconduct reduces amount
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA 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 FWA 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 FWA 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.” 19
[85] Both the applicant and the respondent have made submissions in relation to an appropriate order of compensation should I decided to make one. Both have generally adopted the approach shown in their tabulated calculations, which are set out below:
Applicant
Step 1 | Anticipated Council earnings | $53, 232.00 |
Step 2 | Deduct 3 weeks pay | Less $3,069.00 |
Step 3 | Assume current employment continues indefinitely @ $896.00 weekly x 9 months (39 weeks): that is, allowing for a seasonal lay off | Less $34,944.00 |
Interim total | $15,219.00 | |
Step 4 | Apply contingency of 10% | Less $1521.00 |
$13,698.00 |
Respondent
Step 1 | Anticipated earnings at Council | $53, 232.00 |
Step 2 | Payment to Applicant of 3 weeks payment in lieu of notice | $3,069.00 |
Step 3 | Assumption that Applicant’s current employment at Statewide Line Marking Tasmania continued 39 weeks (at $896.00 per week) | $34,944.00 |
Provisional Compensation | $15,219.00 | |
Step 4 | (1) Deduction for uncertainty of continuation of employment at 25% (2) Further deduction for contributory misconduct of 15% | $11, 414.00 $9,702.00 |
[86] It will be observed that the submission of the parties differ in relation to the issue of deduction for contingencies.
[87] Deductions made on account of contingencies are made in respect of compensation for a period from the date of the final determination of a matter, not in relation to economic loss occurring from the date of termination to the date of decision. Contingency deductions are made on account of the exigencies of life which may cause the assessment of ongoing losses to be inaccurate. Contingency deductions do not follow definitive formulas, they are a matter of judgement, 20 and the amount should be arrived at in context.
[88] In the relevant context and on the evidence and submissions before me, I consider a deduction towards the lower end of the range is appropriate. Mr Bodel is a young man in good health, employment with the Council had various inherent attractions, not the least of which would have been stability and opportunities for promotion. Mr Tegg, his team leader, has been employed by Council for 22 years. Mr Bodel’s skills are limited and Tasmania has a higher than average rate of unemployment. Mr Bodel was a good and productive worker and had the full confidence of his team leader. His work ethic is demonstrated by his mitigation and Mr Tegg’s evidence.
[89] For these reasons, I consider that there is a very significant likelihood that Mr Bodel will remain in employment over the period between the date of decision and twelve months thereafter. In my view, only extreme misadventure is likely to prevent that, which would not support a significant reduction for contingencies.
[90] Mr Collinson for the Council submits that in the event I come to consider a remedy of compensation there should be a deduction for contributory misconduct. I think a deduction of 15% as submitted by Council is appropriate having regard to my findings in relation to Mr Bodel’s conduct at paragraph 67. Consequently, the amount of compensation I consider appropriate is $13,656.
Part A: From date of termination to date of decision | ||
Step 1 | Anticipated earnings at GCC (12 months from date of termination) | $53,232 pa ($1,024 per week) |
Step 2 | Remuneration from GCC from date of termination to date of decision (26 weeks) | $26,624 |
Step 3 | Deduct remuneration earned at Statewide from 1 December 2012 to date of decision ($896 per week less 25% for seasonal lay off) | $14,784 |
Step 4 | Deduct payment to applicant of 3 weeks in lieu of notice | $3,096 |
Total A | $8,744 | |
Part B: From date of decision to 12 months from date of termination | ||
Step 1 | Remuneration which would have been received at GCC between date of decision and 12 months from date of termination | $26,624 |
Step 2 | Deduct income likely to be received at Statewide between date of decision and 12 months from date of termination ($896 per week less 25% for seasonal lay off) | $17,472 |
Step 3 | Deduction for contingencies of 20% | $9,152 -$1,830 |
Total B | $7,322 | |
Part C: Both Periods | ||
Step 1 | Add Total A and Total B | $16,066 |
Step 2 | Deduct 15% for contributory misconduct | $2,410 |
Total | $13,656 | |
[91] It will be observed that my tabulation of the matters to be taken into account for the purpose of s392(c),(e),(f) and (g) differs slightly in approach and includes a determination of a contingency deduction amount and a deduction for contributory misconduct which I have earlier described, and can be objectively attributed as part of the reason for the decision of Council to terminate Mr Bodel’s employment. It is notable that s392(3) does not require the contributory misconduct to rise to the level of a valid reason and a deduction for such misconduct as found by the Tribunal is mandatory.
[92] Moreover, my approach to the calculation of the remuneration required to be taken into account under s392(e),(f) and (g) differs by applying a 25% discount to the weekly wage earned by Mr Bodel in that employment within the calculation. In my view, there is no substantial difference between calculating Mr Bodel’s remuneration in that employment for 12 months by calculating 9 months pay or discounting the weekly wage by 25% over a 12 month period. Finally, my approach to the application of the contingency deduction differs in that it applies to the period between the date of decision and the period between that date and the period of 12 months commencing from the date of termination, which I and the parties consensually judge to be the appropriate employment horizon for the purposes of s392(2)(c).
[93] Such an order would have no effect upon the viability of the Council. I consider that the length of Mr Bodel’s service warrants an order of this amount. Mr Bodel has mitigated his losses by diligently finding work in a reasonable time after the termination of his employment. The considerations expressed in s392(2)(c),(e) and (f) are comprehended in the calculations set out above. There are no other matters I consider relevant to the order of an appropriate amount of compensation. I have summarily reviewed the result of those calculations in all of the circumstances of the case and I am satisfied that the amount resulting is fair overall.
[94] Accordingly, an order will issue that Glenorchy City Council pay to Mr Robert Bodel an amount of $13,656 less appropriate taxation within 21 days of the order issuing.
COMMISSIONER
Appearances:
Mr M Champion of counsel on behalf Mr Robert Bodel
Mr Rod Collinson of Page Seager Lawyers on behalf of Glenorchy City Council
Hearing details:
2012
Hobart
5, 6, 7 March
Final written submissions
Applicant, 19 March 2012
Respondent, 28 March 2012.
1 Fair Work Act 2009 s387
2 Exhibit R9, Transcript of proceedings
3 Respondent’s final written submissions dated 28 March 2012 at [3].
4 Exhibit R2, Attachment A, Transcript of proceedings
5 Exhibit A6, Attachment E, Transcript of proceedings
6 PN1863, Transcript of procedings
7 Respondent’s final submissions at [22].
8 PN3023, Transcript of proceedings
9 Exhibit A9, Report prepared on behalf of Casconsult Engineers, Transcript of proceedings
10 PN2390, Transcript of proceedings
11 PN2591-2, Transcript of proceedings
12 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at [373]
13 Unreported, Full Bench AIRC, Print S2413, 17 March 2000
14 Ibidat [24]
15 Applicant’s final written submissions dated 19 March 2012 at [86]-[88].
16 5 June 1998, Print Q1625
17 I.W. McLauchlan v Australian Meat Holdings Pty Ltd, 5 June 1998, Print Q1625
18 Byrne and another v Australian Airlines Limited (1995) 185 CLR 410 at [465]
19 Fair Work Act 2009 s392
20 Tabro Meat Pty Ltd v Kevin Heffernan [2011] FWAFB 1080 at [26].
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