Rodney Turner v Lindsay Brothers Management Pty Ltd T/A Lindsay Transport - [2013] FWC 733

[2013] FWC 733

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rodney Turner
v
Lindsay Brothers Management Pty Ltd T/A Lindsay Transport
(U2011/9124)

COMMISSIONER JONES

MELBOURNE, 4 FEBRUARY 2013

Application for Relief of Unfair Dismissal.

Introduction

[1] The proceedings have a long history. On 22 June 2011, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by the Applicant. On 1 January 2013, Fair Work Australia was renamed the Fair Work Commission. In our decision we have referred to the Fair Work Commission which incorporates reference to Fair Work Australia as it was known prior to 1 January 2013.

[2] The matter was the subject of a conciliation however, the matter was not resolved. By decision dated 23 March 2012, Commissioner Cribb dismissed an objection by the Respondent that the Applicant lodged his application out of time. In so doing the Commissioner found that the Applicant’s dismissal took effect on 8 June 2011. 1

[3] On 9 August 2012, the Respondent lodged a further objection pursuant to s.587(1)(c) of the Act. A Mention was held in relation to this objection before Commissioner Roe on 14 August 2012. The Respondent subsequently determined not to pursue their objection.

[4] Subsequently the matter has been listed for substantive hearing. At the hearings conducted on 19 November 2012, 20 November 2012 and 21 November 2012, the Applicant was represented by Ms Bridget Cameron of McIlroy IR Group and the Respondent by Mr Chris Mossman of MacPherson and Kelley Lawyers.

[5] The following witnesses gave evidence on behalf of the Applicant:

● Mr Rodney James Turner;

● Mrs Kylie Jane Turner;

● Mr Vito Morello; and

● Mr Brian Leslie Butler.

[6] The following witnesses gave evidence on behalf of the Respondent:

● Mr Ian Bausch;

● Mr Tim Harslett;

● Mr Peter Harslett;

● Ms Emma Nicole O’Brien;

● Mr Glen Lindsay;

● Mr Warren James Barker;

● Ms Katie Ann Butler;

● Mr John Augustine Smyth;

● Mr Anthony Graham Pearman;

● Mr Gary Rogers; and

● Mr Memo Mattazzi.

[7] It is to be noted that a witness statement was filed under the name of Mr Rick Casten by the Respondent. At the application of the Respondent, an Order to attend the proceedings was issued by the Commission. Mr Casten failed to attend the hearing.

[8] Final and closing written submissions were filed by the Applicant on 6 December 2012, by the Respondent in reply on 20 December 2012 and by the Applicant in reply on 2 January 2013.

Background

[9] The Respondent is a division of Lindsay Australia. The Respondent comprises the transport division specialising in the delivery of fresh produce from growing areas in Northern New South Wales, Queensland and South Australia. The Respondent has 15 transport depots located in the states in which it operates, including Stanthorpe Depot in Queensland. At the relevant time there were around 40 grower clients of the Respondent at the Stanthorpe Depot.

[10] The Applicant was employed by the Respondent for some 25 years (from 1986) and as Depot Manager of Stanthorpe Depot for about 8 years preceding his dismissal.

[11] On 2 June 2011, the Applicant was given a letter of termination which identified the following as the reasons for the Applicant’s dismissal:

(a) Attendance and completing the general requirements of the Applicant’s position;

(b) Communication to management on issues, specifically driving a company vehicle without a licence; and

[10] Subsequent to the dismissal the Respondent raised further reasons for the dismissal. These reasons are the misuse of the Respondent’s CHEP Pallet account causing detriment to the Respondent and the misuse of the Respondent’s account to purchase of alcohol not for work related purposes. 3

Legislation

[12] I am satisfied that the Applicant is a person who is protected from unfair dismissal within the meaning of s.382 of the Act.

[13] S.390 of the Act provides that the Fair Work Commission (FWC) may order a person’s reinstatement or the payment of compensation to a person if FWC is satisfied the person was protected from unfair dismissal and the person has been unfairly dismissed.

[14] S.385 of the Act provides that a person has been unfairly dismissed if the FWC is satisfied that the person has been dismissed, the dismissal was harsh, unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code and the dismissal was not a case of genuine redundancy.

[15] There is no dispute, and I am satisfied that, the Applicant has been dismissed, the Respondent is not a small business and that the Applicant’s dismissal was a not a case of genuine redundancy.

[16] Consequently, the issue I am required to determine is whether the Applicant’s dismissal was harsh, unjust or unreasonable.

[17] S.387 of the Act provides:

387 Criteria for considering harshness etc.

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.

Evidence

[18] Extensive evidence was given over the course of the proceedings in relation to the reasons for the Applicant’s dismissal. This evidence is set out below in respect of each of the reasons advanced by the Respondent for the Applicant’s dismissal.

Attendance and Respect and the Requirements of the Applicants’ position.

[19] Two reasons relied on by the Respondent in dismissing the Applicant were conflated in proceedings. These were poor communication with growers (the Respondent’s clients) and poor attendance by the Applicant at his workplace.

[20] Mr Glen Lindsay - General Manager, Transport gave evidence that in early 2011 he received complaints that the Applicant was spending an excessive amount of time away from the Stanthorpe Depot and that he was not visiting growers who were key customers to the Respondent. He stated one of the complaints he received from Mr Peter Harslett was that the Applicant was not regularly visiting his farm and that they were having difficulties reaching the Applicant by telephone. He instructed Mr Rick Casten, Area Manager, to attend the Depot to counsel the Applicant about these issues. 4 He stated that subsequently, Mr Casten contacted him and made him aware of other complaints by growers about the Applicant not visiting them and not being contactable by telephone. Mr Casten also made him aware that some staff were complaining about the “very little time” the Applicant was spending at the Depot.5 Mr Lindsay stated that he could not specify which staff at the Depot, other than Mr Brendon Barker had complained about the Applicant’s attendance at the Depot.6

[21] In respect of communications with growers, the Respondent relied on the evidence of Mr Tim Harslett and Mr Peter Harslett (cousins) of Harslett Farms and Mr Lindsay.

[22] Mr Peter Harlsett, former part owner of Harslett Farms, gave evidence in summary as follows:

(a) He received complaints from his Foreman Manager that he could not get hold of the Depot Manager of Stanthorpe Depot, the Applicant, and had not seen the Applicant for some time at the farm. This resulted in significant problems in terms of logistics of sending produce to market; 7

(b) As a consequence of these problems he contacted Mr Glen Lindsay; 8

Can I put it to you, Mr Harslett that on a daily basis, in fact, that Mr Turner would have conversations with your cold room manager, Mr Cliffy Bruce?---Yes. Most of the contact with Lindsay Brothers was always with the female staff. In fact, 90 per cent of the contacts would have been by the women in the office. It was only when issues of late arrival or other issues that Cliffy would have tried to contact the manager. 9

And;

Just one final question for you, Mr Harslett. Do you think that it would have been difficult for Mr Turner to have four people to deal with - whether it’s yourself, Mr Harslett, your foreman, or your cold room manager, Mr Cliffy Bruce, on any one occasion? Do you feel that it would be difficult for Mr Turner to be able to communicate with four different people wanting four different things from your farm?---No, I don’t - I don’t think we’re particularly ha[r]d to get on with so I don’t think that’s a major issue and as I said before the fellow running the cold store, he did most of the talking anyway. We just let them run the show pretty much.

The fellow running the cold store, you’re saying Cliffy Bruce?---Beg your pardon again?

The man that you referred to as the fellow running the cold store, would that be Cliffy Bruce?---Yes, that is correct, yes. He did most of the conversations. Because he ran all that side of the business. 10

(d) His recollection of conversations with Representatives of the Respondent regarding losses suffered from the rollover of freight was hazy. 11

[23] Mr Tim Harslett’s, owner of Harslett Farms, evidence was that he did not have any regular dealings with the Applicant as Peter Harslett was responsible for the day to day operations of the business during the time the Applicant was employed as Depot Manager. 12 Mr Tim Harslett confirmed Mr Peter Harslett’s evidence that as Mr Bruce was the cold store manager, the Applicant’s contact with Harslett Farms would mostly be with him.13 He stated that he had dealings with the Applicant in 2011 in relation to insurance claims.14

[24] Mr Lindsay was cross-examined regarding the complaints he stated he received from growers as follows:

Did you receive one complaint only out of the 40 growers? You personally? That was my question?---No, I received others.

You received others?---Yes.

But you didn’t see fit to put them in your statement?---You probably, when I hear something three times, the first time, yes, you take it, is it true, is it not true? Is someone trying to have the - on the third report I did act on it and it was from Peter Harslett.

And over what period of time was this then? Because Peter Harslett contacted you in May 2011 from the records that you have?---I haven’t got a record of it. I couldn’t tell you when.

You couldn’t tell us when Mr Peter Harslett spoke to you?---No.

And what were these other growers’ names?---Ren & Co would have been one. Without going through a diary I couldn’t tell you.

Did you send Mr Rick Castin to go visit them?---I did.

You did but Mr Rick Castin and yourself have made no record in your statements about that meeting? Is that correct?---It wasn’t relevant as far as I’m concerned.

It’s not irrelevant?---I didn’t think it would have been irrelevant in this but - - -

But you’re relying on growers to say – you’re making statements that Mr Turner actually was not visiting growers, yet you only saw fit to put one grower in your statement - - -?---Yes.

- - - but then you’ve made the statement of growers being more than one yet you didn’t seek to rely on other growers. Is that true in your statement?---I only put one grower in there. That’s correct. 15

[25] Regarding communications with Harslett Farms, the Applicant’s evidence was that, whilst he did communicate with Tim Harslett, his main point of contact was with Cliff Bruce, the cold room manager. 16 The Applicant could recall Mr Rick Casten, Regional Manager for the region visiting the Depot in about May 2011 and, in the course of a discussion, said that Mr Lindsay had rung him stating that the Applicant was not visiting Mr Harslett and that the Applicant needed to spend more time at work.17 However, he denied this was a warning but rather more in the nature of passing on a message from Mr Lindsay.18 He stated Mr Casten said that he was not concerned with the Applicant’s performance as he could see freight was still being carted to Harslett Farms.19

[26] The Applicant relied on the evidence of a grower and former employee of the Respondent. Mr Vito Morello owned a farm located in Sugar Loaf and traded under the name Red Rosella Pty Ltd. 20 His evidence was that he had known the Applicant for around 20 to 25 years,21 that the Applicant’s customer service was “pretty good” and that he had had no complaints with the service provided.22 He stated that he started his own transport company around 8 years ago and that after that time he only used the Respondent for surplus loads, around twice a week during the peak season.23 The business was sold to Rugby Farms around two years and a half ago with the consequence that Mr Morello has not had dealings with the Respondent since that time.24

[27] Mr Brian Leslie Butler was employed as a pick up truck driver by the Respondent whilst the Applicant was Depot Manager and gave evidence that the Applicant was in regular contact with the growers. 25 He stated that he knew this by comments growers made when he undertook deliveries to the farms26 and hearing the Applicant converse with growers when Mr Butler went into the office at the Stanthorpe Depot.27

[28] In respect of the Respondent’s allegations regarding attendance, it relied on an exit interview completed by a Mr Brendon Barker (who was second in charge to the Applicant) dated 19 May 2011 28 and Mr Lindsay’s evidence that Mr Casten reported to him that staff had complained about this matter. The Applicant agreed that this issue was raised by Mr Casten during his visit in May 2011, however, he said Mr Casten had told him that it was a concern of Mr Lindsay. Mr Casten had said to the Applicant that he was happy with the way things were being run and he could not see a problem.29

[29] The evidence of the then Office Manager, Ms Emma O’Brien was that, based on her observations of the Applicant’s attendance at the Depot, the statement made by Mr Barker in his exit interview that the Applicant was only at work for two hours a day was false. 30

Driving a company vehicle without a licence.

[30] The reason given by the Respondent under the rubric “communications to management of issues” involved three allegations:

(a) the Applicant’s failure to advise the Respondent that he had lost his licence;

(b) driving the company vehicle whilst unlicensed; and

[31] The Respondent’s position is that it is a fundamental requirement of the Depot Manager to hold a driver’s licence. Mr Lindsay’s evidence is that Depot Managers are supplied cars to fulfil the purpose of visiting growers and customers on a regular basis. 31 Mr Lindsay agreed that the provision of the company vehicle to the Applicant was not for Mr Turner’s exclusive use.32

[32] Mr Lindsay stated that, having regard to the ongoing problems with the Applicant’s performance and the loss of his licence, he felt he had no choice but to dismiss the Applicant. He provided a letter of termination to Mr Casten and told him to notify the Applicant of his dismissal and give him the letter. 33

[33] The undisputed facts relating to the suspension of the Applicant’s licence are as follows:

● On 27 January 2010, the Applicant was placed on a 12 month good driving behaviour period following accumulation of demerit points. The Applicant chose this in preference to a suspension of his licence for 3 months; 34

● On 15 November 2011, the Applicant accumulated 3 demerit points as a consequence of exceeding a 100km/hr speed limit by at least 13 km/hr and not more than 20km/hr;

● The Applicant’s driving licence was suspended on 10 February 2011 for a six month period;

● On 10 March 2011, the Applicant was charged with driving without a licence; 35

● At the Magistrates Court hearing the Applicant pleaded guilty to driving without a licence. 36 The suspension of his driver’s licence was extended by two months to 4 October 2011.37

[34] The Applicant’s evidence in relation to the circumstances surrounding the suspension of his licence is:

(a) At the time of the speeding fine on 15 November 2010, he thought his good behaviour bond expired and although he was notified of his speeding fine he was not advised by the relevant authority that his licence was suspended in the period 15 November 2010 to 10 March 2011. 38 He only became aware that he was unlicensed on 10 March 2011, when he was stopped by police for a random breath test;39

(b) He pleaded guilty at the court hearing to driving unlicensed because “at the end of the day I was unlicensed driving, Even though I was unaware of it, I was still unlicensed driving.” 40

(c) He informed Mr Casten, Area Manager, on or about 10 March 2011 about the suspension and the outcome of the Court hearing on or about 12 April 2011 41 and notified the General Manager, Mr Lindsay, by email on 17 April 2011, attaching to that email a Traffic History Report.42

[35] The Applicant stated that he obtained a Traffic History Details report from the Department of Transport and Main Roads (Department) at the request of Mr Casten and after Mr Casten told him Mr Lindsay had said that the Applicant had lost his licence for drink driving. 43 Mr Lindsay stated that he could not recall receiving the email.44 He said he could not remember whether he responded to the Applicant’s email dated 17 April 2011 and wasn’t sure, without phone records, whether or not he spoke to the Applicant about the suspension of his licence in the period between April 2011 and 2 June 2011, when the Applicant was dismissed.45

[36] The Applicant denied that he had received correspondence from the Department, which was recorded on the Traffic History Report as having been posted on 12 January 2011, notifying him of accumulated demerit points. 46

[37] The Applicant’s evidence is that the possession of a licence is not a requirement of his position as Depot Manager or of fundamental importance to that role. 47 In any event, the disruption to the Stanthorpe Depot would be minimal as alternate arrangements would be put in place. He points to the fact that at the relevant time of his suspension (March to October 2011), the period was not the high season and hence his time would generally be spent at the Depot rather than visiting growers.

[38] As to the requirements of his position the Applicant points to his contract of employment which is silent on this issue and that he did not have exclusive use of the company car provided to him.

[39] The Applicant stated that:

(a) He would see growers on a weekly basis, although this may entail meeting them at the Depot and not necessarily visiting them on their farms; 48

(b) He was required to drive to Brisbane on occasions to conduct changeovers; 49

(d) He would deliver parts to broken down trucks at night. 51

[40] The alternate arrangements proposed by the Applicant included having his wife, Ms Kylie Turner, drive him when required, travelling with truck drivers when they collected produce from the growers or having his second in charge carry out necessary driving functions. 52 The Applicant’s undisputed evidence is that in 2006, when his driving licence was suspended for 14 months, by arrangement with the then Produce/State Manager for the Respondent, Ms Turner drove the Applicant around as required. At the time Ms Turner worked for the Respondent.53 The Applicant conceded that, in circumstances where his wife was no longer an employee of the Respondent, the Respondent would have legitimate concerns.54

[41] The Applicant’s evidence is that around 13 April 2011, after the Court hearing, he proposed to Mr Casten that the situation could be managed, by him travelling with truck drivers to visit growers. The undisputed evidence is that Mr Casten agreed to this as an alternate arrangement during the period of suspension. 55

Misuse of Respondent’s Alcohol account

[42] The Respondent alleges that the Applicant purchased alcohol using its account with Central Hotel Stanthorpe Pty Ltd (Central Hotel) for purposes other than work related.

[43] There is no dispute that the Applicant had the authority to purchase alcohol for company related functions. The Respondent relied on invoices issued by Central Hotel over the period 22 July 2010 to 18 January 2012, 56 which recorded purchases of alcohol almost exclusively of bottles (700ml) of Bundaberg Rum (rum).57 Other than purchases recorded on two invoices, the Applicant confirmed that he recalled these purchases and they would have been made by him or persons under his direction.58

[44] The Applicant stated that some years ago he attended a meeting in Gatton organised by the Respondent which was about getting the most out of staff. At the meeting the Respondent suggested that, “we put on regular BBQs and drinks for the workers on a Friday afternoon which we did when work permitted.” 59

[45] The Applicant’s evidence was that there was an arrangement with the owner of the Central Hotel, Mr Memo Mattazzi, that all purchases of alcohol on the Respondent’s account would be recorded as purchases of rum, thereby providing a discount to the Respondent. 60 The Applicant stated:

(a) The arrangement was with the owner but he mainly dealt with Wayne; 61

(b) He did drink rum but not exclusively, 62 he mainly drank beer, XXXX Gold.63

[46] Mr Memo Mattazzi, owner of the Central Hotel gave evidence in summary as follows: 64

(a) Invoices issued by the Hotel are required, for the purposes of stock control and estimating the duty paid on alcohol, to accurately reflect the product sold;

(b) There has never been any arrangement with anyone contrary to this practice;

[47] In cross-examination, Mr Mattazzi stated:

(a) A person by the name of Wayne is an employee of the Hotel, although he formerly managed the Hotel under a lease agreement, this arrangement ceased around six years ago; 65

(b) He had not questioned Wayne regarding the number of invoices issued to the Respondent and generated by him for the purchase of rum; 66

(c) Purchases of alcohol are recorded by bottle shop employees in an invoice book which is then given to office staff to issue tax invoices; 67

(d) He can’t explain the reason for the number of invoices issued to the Respondent on 22 July 2010 for the purchase of rum. Potentially it could be because office staff were batching the invoices, 68 although he doesn’t know their system;69

(e) When the Applicant drinks at the Hotel, he sees him drinking rum. 70

[48] Ms O’Brien stated that staff events were held maybe once every two months. 71

Misuse of Respondent’s CHEP pallet account

[49] The following are the undisputed facts regarding the Respondent’s CHEP pallet account.

[50] The Respondent uses wooden pallets for the transport of produce. CHEP (Australia) (CHEP) provides pallets under terms of hire to transport companies, including the Respondent. The Respondent both directly hires pallets from CHEP and engages in transfers of pallets with other transport companies hiring CHEP pallets. When the Respondent hires CHEP pallets it incurs a daily hire fee. Where pallets are sourced directly from CHEP and pallets are collected from CHEP yards, the Respondent incurs an issue fee. Where a transfer of CHEP pallets is effected between transport companies, the daily hire fee likewise transfers to the company acquiring the pallet. Where CHEP pallets are lost, a de-hiring fee is paid for the replacement of the pallets.

[51] A ‘black market’ in CHEP pallets exists under which CHEP pallets are sold to transport companies at a lesser rate than the de-hiring fee and which avoids the issue fee.

[52] The Respondent has had in place a software system to monitor, in particular, the transfer of CHEP pallets as between transport companies, called 2IC. The Applicant was aware of 2IC, however, had no training in the operation of the system nor had any role in operating the system. The data entry and reconciliation of accounts on the 2IC system were performed at the Stanthorpe Depot by employees called data controllers. There was a general practice or procedure in place for the data entry on the 2IC system. It is noted that the Respondent did not place in evidence a procedure manual, protocol or policy in relation to the recording of transfers of pallets on the 2IC system. However, the general practice which is apparent from the evidence can be summarised as follows:

(a) transactions of CHEP pallets, both on and off the account were recorded on 2IC; 72

(b) transactions on the Respondent’s account would follow delivery of pallets by another transport company (a transfer) to the Stanthorpe Depot yard. The third party (truck driver) would provide a transfer or delivery docket; 73

[53] The Respondent submits that the 2IC system has been in place for around 5 years. 75 The Applicant maintains that the procedure for data entry into the 2IC commenced in the last 6 months of his employment with the Respondent.76

[54] The gist of the Respondent’s allegations regarding the Applicant’s conduct is that:

(a) The Applicant transferred CHEP pallets which were under hire by the Respondent to another transport company, Turners Transport, the consequence of which was that the Respondent continued to incur hiring fees for CHEP pallets in the possession of Turners Transport; and

(b) The Applicant facilitated the transfer of some 2540 CHEP pallets which remained in the possession of Rogers Transport onto the account of the Respondent, with the consequence that the Respondent incurred the hiring fees for CHEP pallets in the possession of Rogers Transport.

[55] It is to be noted that, in the course of the proceedings, the Respondent raised the issue of transfers of pallets from another transport company, Visa Logistics (Visa) to the Respondent’s account. However, these transfers were subject to little evidence and are not dealt with in this decision.

[56] The Applicant’s evidence in relation to the transfer of CHEP pallets is as follows:

(a) He was directed by the Respondent to source pallets from other areas besides CHEP, including by transfer arrangements with other transport companies in order to avoid issue fees. This sourcing of pallets from other companies became common practice. 77 Prior to accepting transfer arrangements with Rogers Transport he rang Mr John Smyth and asked him whether this was still a practice to be adopted and Mr Smyth confirmed it was; 78

(b) In 2010, he received a phone call from a person, whose name he cannot recall, from Rogers Transport, asking if they could leave CHEP pallets at the Stanthorpe depot. He received a phone call from Rogers Transport requesting to drop off load pallets at the Stanthorpe Depot. He rang John Smyth, National Pallet Controller, and asked him if the Respondent still accepted pallets from another transport company. His answer to me was ‘by all means’. Sometime after this the Applicant received a phone call from Mr John Smyth to say that Stanthorpe Depot was accumulating a lot of pallets and that this is not a bad thing and to keep it up. 79

(c) The pallets were dropped by Rogers Transport generally at night when the Respondent’s employees were not on-site and when the Depot was shut but the gates to the Depot were unlocked. The truck drivers from Rogers Transport unloaded the pallets themselves using the Respondent’s forklift. Sometimes the Applicant was at the Depot when the pallets from Rogers Transport were delivered, sometimes he was not. The Applicant maintained it was common practice for persons other than employees of the Respondent to unload deliveries of pallets at the Depot using the Respondent’s forklifts and stated that he was unaware of a policy of the Respondent requiring that only its employees load and unload at the depot; 80

(d) A transaction record produced by the Respondent for the period 9 February 2010 to 17 February 2011 was a record of the pallets delivered by Rogers Transport. 81 The Applicant agreed that the record disclosed a total delivery of 2540 pallets.82

(e) Paperwork was rarely provided for these deliveries. He or other yard employees would count the pallets delivered on-site the next morning and advise the pallet controller at the Depot of the numbers delivered. The yard employees were Andy Jamieson, Brian Butler and Dave Walters; 83

(f) Prior to the phone call from Rogers Transport, it was not an entity the Respondent had a commercial relationship with; 84

(g) He also received a phone call from a person named Paul, from Turners Transport, whom he assumed was the Brisbane Depot Manager, asking if they could leave pallets at the Stanthorpe Depot and retrieve them at a later date. This company was not one the Respondent had previously had a relationship with and he wasn’t aware of the reason for this approach by Turners Transport; 85

(h) The Applicant later spoke to the Brisbane Manager of Turners Transport but could not recall his name;

(i) CHEP pallets were dropped off at the Stanthorpe depot over a period of 2 years, without any documentation provided by Turners; 86

(j) In or around October 2010, Turners Transport asked for their pallets to be transferred back to Brisbane. The Applicant asked for documentation but there was none provided; 87

(k) This transfer was done over time as and when the Respondent’s truck drivers were picking up pallets in Brisbane; 88

(l) He instructed a truck driver, Mr Barker, to deliver around 180 CHEP pallets to Turners Transport and Mr Barker refused. 89 He stated he did not discipline Mr Barker over this refusal as he was a valued driver;90

(m) He directed another truck driver, Mr Bausch, to drop off around 180 pallets to Turners Transport in October 2010 as part of a truckload delivery of 380 pallets from Rocklea Markets to Stanthorpe depot. An invoice issued by CHEP on 13 October 2010 reflected this delivery; 91

(n) The Applicant stated that in the absence of documentation, his estimate of pallets to be transferred back to Turners Transport were ‘a best guess’ but were fewer pallets than the number of CHEP pallets deposited by Turners Transport at the Stanthorpe depot; 92

(o) Generally he would expect paperwork from other transport companies delivering pallets to the Depot. 93 However, these arrangements for transfers with Rogers Transport and Turners Transport occurred before the procedures came into place.94

[57] The Applicant stated that he could not recall any discussions with Ms Katie Butler in November 2010 and other (unspecified times) regarding the delivery of pallets to Turners Transport, querying transfers from Rogers Transport and requesting paperwork for such transfers. 95

[58] The Applicant stated that he was not aware of policies of the Respondent stipulating that only employees of the Respondent unload forklifts or that non-employees be inducted on-site. 96

[59] Mr Gary Rogers, owner of Rogers Transport, gave evidence that when contacted by the Respondent regarding the transfer of CHEP pallets on hire by Rogers Transport to the Respondent’s account he formed the view that it was not legitimate because: 97

(a) Rogers Transport had only previously transferred CHEP pallets to the Respondent’s Coffs Harbour depot at Christmas;

(b) It was not commercially feasible to deliver entire loads of pallets to the Stanthorpe Depot as the truck would be running to Stanthorpe with no freight and return to Brisbane empty, incurring a direct cost to the business.

[60] As Rogers Transport accounts had not changed, Mr Rogers stated he agreed that the Respondent had suffered a financial detriment as a consequence of the transfer of the 2540 pallets. Rogers Transport reimbursed the Respondent for the costs incurred by the Respondent, being $35,471.48 plus GST. 98 Mr Rogers stated in summary that:

(a) In January 2011, Rogers Transport lost all its documentation in the floods; 99

(b) Rogers Transport made a commercial settlement with the Respondent because, “maybe it was something to do with an ex-employee of ours” 100 or it “could be a current employee. I don’t know.”;101

(c) The paperwork would have been done by the former or current employee but pallets were not delivered to the Stanthorpe Depot; 102

(d) He did not recall any person named Paul being employed at their Depot nor was a person called Elizabeth employed in the office; 103

we can’t come up with who was involved.

[61] Ms O’Brien - Office Manager, Stanthorpe Depot, gave evidence in summary that: 106

(a) Her duties include making entries in the 2IC and overseeing the management of the system;

(b) Entries were generally made by her at the direction of the Applicant in his role as Depot Manager;

(c) It was not the Applicant’s practice to provide her with supporting documentation when entries were made in the 2IC system, the instructions from him were generally verbal instructions;

(d) The entries for Turner’s Transport and Visa would have been made by her following verbal instructions from the Applicant;

(e) She did not provide the Applicant with any reports on transactions recorded on the 2IC system for the Stanthorpe Depot; 107

(f) She never followed up with Applicant to obtain the paperwork in order to complete the transactions; 108

(g) It was Ms Butler’s job to reconcile the transactions at the end of the month; 109 supporting documentation was not always needed as the name of the person providing the instructions for the entries would be placed in the reference column;110

[62] Ms Katie Butler - Pallet Controller, Stanthorpe Depot, gave evidence in chief, in summary that: 111

(a) Her duties included the reconciliation of pallet hire accounts in the 2IC system;

(b) Most entries she made on the account were at the direction of the Applicant and were generally made without documentation;

(c) On 16 November 2010, “as a result of things she had been told by two drivers and an employee involved in unloading the trucks at the Depot she printed CHEP issue dockets and on one she wrote, ‘160 bought here 200 to Turners Transport?”;

(d) She then asked the Applicant for paperwork for the Turner’s transport delivery. The Applicant stated he would talk to them (Turners Transport). She repeated this request over “ensuing weeks” but “he kept putting me off.” She asked for a contact name but “none was provided” to her;

(e) When reconciling the Respondent’s pallet account she saw three transfers from Rogers Transport she was unable to reconcile. She asked the Applicant for paperwork and was told by the Applicant that Rogers Transport was dropping the pallets off late at night so there was no paperwork;

(f) She was suspicious about the Rogers Transport transfers as it was highly unusual for pallets to be dropped off at night;

(g) There were several phone calls from an unknown person from Rogers Transport regarding transactions which had not been processed;

(h) Subsequently a person named Elizabeth at Rogers Transport contacted her regarding three transfers which had not been affected. As she was unable to “authenticate those transactions and because of my concerns about their legitimacy, I had them deleted from the (2IC)”;

(i) Because the Applicant was her boss she felt that she was unable to question the legitimacy of the transfers and only raised it with management in Brisbane after the Applicant’s dismissal.

[63] In cross-examination Ms Butler stated that:

(a) She asked the two truck drivers for paperwork in relation to the Turner’s deliveries but they didn’t have any; 112

(b) She raised the absence of paperwork with the Applicant, several times; 113

(c) She was trained by Mr Smyth on the 2IC system. She did not raise with him the approach she should adopt regarding her difficulty with reconciling the Rogers Transport transfers because she “didn’t want to question what my boss had told [her]”; 114

(d) She was not at the Depot when the trucks arrived at night and does not know who had the keys to access the Depot, other than the Applicant; 115

(e) She provided the pallet reports to the Applicant every few months, which included outstanding transaction. Normally she handed the report to the Applicant without discussion although the outstanding transfers would be marked on the report. 116

[64] Mr Warren Barker, truck driver, gave evidence regarding a request by the Applicant (on 2 November 2010) to drop off pallets to Turners Transport. He stated he was told by the Applicant to collect 360 CHEP pallets from the service centre in Rocklea and drop off 180 pallets at Turners Transport and bring the other 180 pallets back to the Depot. He said he understood that the reason for this was that Turners Transport had been delivering loads of mulch, together with pallets at the Depot and that the Applicant was returning the same number of pallets to Turners Transport. He thought this explanation was unusual because he had not seen any loads of mulch at the Depot and it was highly unusual to deliver pallets on the Respondent’s account to another transport company. He did as he was instructed . 117

[65] Mr Barker stated that some time later he was advised by the Applicant that his job for the evening was to collect two loads, each of 360 pallets and drop one at Turners Transport and one to the Depot. Because of his concern that something “unlawful might be happening”, he only picked up the load for the Depot. 118 Mr Barker agreed in cross-examination that the loads of mulch were to be dropped off elsewhere and it was the pallets which were to be dropped back at the Stanthorpe Depot.119 In re-examination he was asked about his difficulty with the Applicant’s instructions to him:

Mr Barker, you gave an answer in cross-examination that when you were requested to deliver this load or deliver these pallets to Turner by Mr Turner that you said that, “We’ll be in trouble.” Could you explain to the Commissioner why you said that statement?---Yes, it was just not the right thing to do. Well, I didn’t know that to drop pallets where it’s just not the right – not the done thing. You normally exchange them. We do paperwork for them. We don’t exchange them on big quantities of pallets.

Just one final question, sorry. Did you tell anyone else about your concerns?
---No. 120

[66] Mr Ian Bausch, truck driver, gave evidence regarding a direction given by the Applicant on 11 October 2011 to collect 360 pallets from the CHEP depot in Rocklea and to drop off 200 pallets at Turners Transport and the remainder at the Depot. He complied with this direction. 121 He stated that when he dropped off the load at Turners Transport he asked for but was not given documentation and that when he returned to Stanthorpe Depot he did not advise anyone that he had not been given any documentation for the delivery to Turners Transport.122

[67] Mr Smyth gave evidence regarding the genesis and extent of the Respondent’s investigation into the transfers of pallets to Rogers Transport and Turners Transport and the settlement reached by the Respondent with Rogers Transport. 123 Following the forwarding of a memorandum of Ms Butler124 by Mr Casten in August 2011, he ran a trading partner report of transactions with Rogers Transport.125 This report disclosed ten transactions totalling 2540 pallets from Rogers Transport onto the Respondent’s account. The transactions had also been processed by CHEP Australia. Given the absence of a commercial relationship between the Respondent and Rogers Transport he had significant concerns with the legitimacy of the transfers, he obtained a telephone number for a person named Elizabeth of Rogers Transport from Ms Butler, whom he contacted by telephone. As this person was unable to provide any information regarding the transactions he asked her to have her supervisor contact him.126

[68] Mr Smyth stated that he contacted the Operations Manager of Rogers Transport who denied knowing an ‘Elizabeth’ or the particular transactions. 127 Soon after he met with Mr Rogers, Principal of Rogers Transport on 3 August 2011. He said that, at the meeting Mr Rogers stated that he had no prior knowledge of the transfers, queried how pallets could be taken off his account without any change in the monthly balance, agreed to transfer the pallets from the Respondent’s account to Rogers Transport account and offered to reimburse the Respondent for the cost of the 2540 pallets at the Respondent’s more favourable hire rate.

[69] In cross-examination Mr Smyth stated:

(a) He had visited the Stanthorpe Depot once in the period 2010 to 2011; 128

(b) He trained Ms O’Brien and Ms Butler on 2IC; 129

(c) The office staff were directed, when he trained them, to call him if they had any difficulty with the 2IC system; 130

(d) He would not train anyone to delete a transaction rather than attempt to reconcile the transactions nor was it normal practice to take this action; 131

(e) He did not contact the Applicant during his investigations into the transfer transactions; 132

(f) Ms Butler and Ms O’Brien have not been subject to any disciplinary action arising out of the Respondent’s investigations. 133 Disciplinary action was not taken against Ms O’Brien because, “at the end of the day, if it wasn’t for Katie, we probably wouldn’t have dived any further into the system”;134

(g) He did not question staff at Stanthorpe Depot regarding whether CHEP pallets were or were not delivered to the Depot. He relied on the reports by Ms Butler and someone else (unnamed) who questioned staff; 135

(h) There was a general direction by management in 2010 to Depot managers to seek to source CHEP pallets from third parties to avoid CHEP issue fees; 136

(i) He could well have said in response to the Applicant’s query whether the direction to source from different parties was still in place, “by all means”. 137

[70] Mr Smyth was cross-examined regarding the reports produced in evidence of transactions from 2IC involving Rogers Transport: 138

All of these transactions here are in fact created by either Emma or Lauren or Katrina. None of these transactions were created by Mr Turner, were they?---No.

Was Mr Turner ever trained in actually making entries into the pallet system?

---No.

What reports did you provide depot managers on a weekly or a monthly basis to help them manage and reconcile these transactions?---None.

So in fact from a period of 2010 - because the first one here is February 2010 - all the way until February 2011, these transactions just sat there idly with no reconciliation whatsoever, yet how would a depot manager know that some action needed to be taken on these?---They wouldn’t.

In your statement at 8, you made reference to - that you’d certainly been never aware of dealings with Rogers Transport. Did you actually in fact contact Mr Turner during your investigations to ask him about dealings with third parties?---No. 139

[71] In re-examination Mr Smyth was asked why he particularly focussed on the transactions of CHEP pallets involving Rogers Transport and Turners Transport. He responded that, in respect of Rogers Transport it was the quantity of pallets being delivered each time, the fact no-one Ms Butler spoke to recollected them being dropped off and the fact they were unloaded at night which made him suspicious. With respect to Turners Transport, he stated:

In respect of Turners Transport?---In Turners Transport, the physical dropping of pallets at Turners Transport at Rocklea, who we don’t deal with and we haven’t got any reason to drop any pallets there. They don’t give us any pallets in Stanthorpe to our knowledge, and even the drivers themselves had no knowledge of these pallets being owed to Turners. These are two regular drivers in Stanthorpe that do a lot of the work around Stanthorpe locally and between Brisbane and Stanthorpe. Neither of them had any knowledge either. In particular, the pallet controller herself, Katie Bronkhurst (Butler), and Emma, the current admin manager at the depot, had no knowledge of any owings of pallets. 140

[72] The Respondent called Mr Graham Pearson, National Security Manager for CHEP to give evidence. 141 Mr Pearmen conducted an investigation into the transfer of pallets between the Respondent, Rogers Transport and Turners Transport at the instigation of the Respondent. The material relied on by Mr Pearman was information provided by the Respondent and interviews he conducted with the Respondent’s employees, Ms O’Brien, Ms Butler, Mr Barker, Mr Bausch, Mr Smyth.142 He subsequently referred a summary of events to the police for investigation.143 The Applicant has subsequently been charged by the police for fraud. At the date of the hearing, the Applicant had not entered a plea.144

Was the Dismissal Harsh, Unjust or Unreasonable?

[73] S.387 of the Act sets out the matters which must be taken in account by FWC in satisfying itself whether a dismissal was harsh, unjust or unreasonable.

[74] Whether a termination of employment is “harsh, unjust or unreasonable” was described by their Honours McHugh and Gummow JJ in Byrne v Australian Airlines Ltd 145in the following way:

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. 146

Was there a Valid Reason relating to the Capacity or Conduct: s.387(a)

[75] His Honour, Justice North stated:

In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are treated fairly. 147

[76] It is settled that in determining whether there was a valid reason for dismissal FWC is not limited to the reasons given by the employer for the Applicant’s termination. 148

Attendance and Respect and the Requirements of the Applicants’ position.

[77] There is no evidentiary basis for the Respondent’s allegations regarding the Applicant’s attendance at the Stanthorpe Depot and I find this to be a specious reason in the Selvachandran sense. The Respondent relies on an exit interview which is at odds with the evidence of the Office Manager (see [29]).

[78] The evidence of the Messrs Peter and Tim Harslett regarding communication by the Applicant with growers was unconvincing. It was not clear, from the evidence given by the Respondent or the Harslett Farm witnesses, what precisely the issue was in relation to the communication. Indeed, it is apparent from the evidence, that the Applicant’s main contact with Harslett growers was with Mr Bruce with whom the Applicant had regular contact. Other than a generalised and unsubstantiated complaint about the Applicant’s relationship with growers made by Mr Smyth no other evidence was adduced by the Respondent.

[79] Consequently, I find that these were not valid reasons for dismissal.

Alleged conduct in relation to CHEP pallets

[80] The gist of the Respondent’s allegations regarding the Applicant’s conduct is that:

(b) The Applicant facilitated the transfer of some 2540 CHEP pallets, which remained in the possession of Rogers Transport onto the account of the Respondent, with the consequence that the Respondent incurred the hiring fees for CHEP pallets in the possession of Rogers Transport.

[81] The Applicant does not deny that CHEP pallets under hire by Rogers Transport were transferred to the Respondent’s account. However, he submits that this occurred only once the pallets in question were physically transferred to the Stanthorpe Depot. He acknowledges that the necessary paperwork was not provided by the Rogers Transport drivers (direct or contract) upon delivery of the pallets to the Stanthorpe Depot but he maintains this absence of documents was never raised with him by the 2IC controllers or Respondent’s managers.

[82] The Applicant also does not deny that CHEP pallets on hire by the Respondent were delivered to Turners Transport. However, he submits that this followed the delivery by Turners Transport of CHEP pallets to the Stanthorpe Depot earlier, over a two year period. The pallets delivered by Turners Transport in the earlier period were not reflected on the Respondent’s transfer account but were utilised by the Respondent. He is not sure of the numbers of pallets involved but is confident that the pallets delivered back to Turners Transport as an exchange was less than the numbers made available by Turners Transport for the Respondent’s use. Again there is no paperwork but he maintains this absence of documents was never raised with him by the 2IC controllers or Respondent’s managers.

[83] The Applicant’s evidence is that he acted, he believed, in accordance with the general direction by the Respondent to facilitate transfers of pallets. The Applicant submits that the Respondent’s procedure requiring documentation upon delivery of pallets to the Stanthorpe Depot commenced after the period during which the transfers involving Rogers Transport and Turners Transport occurred.

[84] The Respondent denies that pallets were ever delivered by either Rogers Transport or Turners Transport to the Stanthorpe Depot and hence the conduct of the Applicant resulted in significant financial loss, some of which was dealt with by the settlement reached with Rogers Transport. The Respondent submits the Applicant either deliberately engaged in conduct to cause the Respondent financial loss or, alternatively, his conduct amounted to gross negligence.

[85] In the absence of documentation regarding the delivery of pallets, the Respondent relies, for its assertion that pallets were never delivered to the Stanthorpe Depot by Rogers Transport on:

(a) the commercial settlement reached with Rogers Transport and the evidence of the owner, Mr Rogers; and

(b) the information given to Mr Smyth by Ms Butler and an unnamed person, who is said to have spoken to staff at the Stanthorpe Depot, that no one could recollect the quantity of pallets which the 2IC system recorded as having been delivered by Rogers Transport, being delivered.

[86] In relation to Turners Transport the Respondent relied on its lack of commercial dealing with the transport operator, the evidence of Mr Barker and Mr Bausch (Stanthorpe truck drivers) and Ms Butler regarding the lack of dealings with the operator. 149

[87] The Trading Partner History Report and 2IC report 150 produced in evidence shows, and I am satisfied that, CHEP pallets were transferred from the Rogers Transport to the Respondent’s CHEP pallet account, over the period 9 February 2010 to 17 February 2011 by ten transactions ranging from 150 to 330 pallets. The total number transferred was 2540. The Depot recorded as receiving each of these transfers was the Stanthorpe Depot and the Applicant’s name was recorded under the column “Con Note” for each transfer.

[88] In evidence is an Issue document from CHEP Rocklea for Lindsay Australia for the hire of 360 pallets printed on 13 October 2010 with the driver name Ian Bausch recorded. 151On that docket is a hand written note, identified by Ms Butler as having been made by her, “160 brought here, 200 to Turners Tpt?” I am satisfied, having regard to Mr Bausch’s and the Applicant’s evidence that this document is in relation to a delivery of 200 pallets to Turners Transport by Mr Bausch. I am satisfied that a further delivery of 180 pallets was made to Turners Transport having regard to the Ready Reckoner of Pallet Hire Costs produced by the Respondent.152

[89] The question to be next determined is whether or not the CHEP pallets on hire by Rogers Transport and Turners Transport were delivered to the Stanthorpe Depot.

[90] I am not satisfied that Ms Butler is a reliable source of information regarding the delivery or non-delivery of CHEP pallets to the Stanthorpe Depot. I find her evidence unconvincing. Ms Butler was responsible for reconciling the transactions of CHEP pallets recorded on the 2IC. Her evidence regarding her suspicions as to the transfers and her discussions with staff is so general as to be unhelpful. The transfer transactions recorded and in evidence show that they commenced on 9 February 2010 and continued to 17 February 2011. 153 It is unclear when her suspicions regarding the Rogers Transport transactions crystallised as no date is given. It seems from her written statement that this occurred at the time she had contact with an unknown person from Rogers Transport regarding three transactions and contacted a person named “Elizabeth” from Rogers Transport, after which she deleted the transactions. Presumably, the recorded transactions in evidence do not include the transactions Ms Butler deleted. Consequently, it would appear her suspicions arose first after 17 February 2011. The effect of this is that ten transfer transactions were made, which included large quantities of pallets, from Rogers Transport onto the Respondent’s account which Ms Butler was responsible for reconciling and which did not arouse her suspicions. Even if a generous view of her evidence is given and it is assumed her suspicions commenced in November 2010, there were still three lots of transfers of 300 pallets, one transfer of 330 pallets, one transfer of 200 pallets and one transfer of 150 pallets. Two conclusions flow from this. The first is that Ms Butler failed to notice that the number of pallets delivered to the Depot did not match the delivery quantity. The second is that the numbers of pallets delivered to the Depot were consistent with the quantity of deliveries of pallets.

[91] There are other aspects of Ms Butler’s evidence which are unsatisfactory. Ms Butler states that she did not raise her concerns regarding the transfers with the Respondent’s management as she was scared she would lose her job. This explanation is unacceptable in light of Mr Smyth’s evidence that he directed those he trained, including Ms Butler, to contact him where there were difficulties with the 2IC. Ms Butler states that she wrote on a CHEP issue docket in or around 16 November 2010, after discussions with two drivers. This notation was in relation to deliveries of pallets to Turners Transport. Both Mr Barker and Mr Bausch stated they spoke to no-one about the deliveries to Turners Transport.

[92] Mr Smyth’s evidence is that he relied, in addition to Ms Butler’s information, on an investigation conducted by an unnamed person who spoke to staff at the Stanthorpe Depot for his conclusion that pallets were not delivered. This does not provide a sufficient evidentiary basis in determining this issue. I observe here that Mr Smyth had access to the transactions reports from 2IC at all times. As the Respondent’s National Pallet Controller it is to be expected that he would review transactions recorded on 2IC from all Depots and identify any unusual transactions. His evidence is that the Rogers Transport transactions were unusual because of the size of deliveries and the absence of a commercial relationship between the two entities. These features would be apparent from reports yet were not identified by him over the course of February 2010 to February 2011.

[93] There is, of course, the fact of a commercial settlement reached between Rogers Transport and the Respondent. Under this settlement, Rogers Transport paid the Respondent an amount based on the Respondent’s pallet hire costs with CHEP which was a more favourable amount than Rogers Transport’s costs. I presume from Mr Rogers’ evidence that, although all documents were lost in the floods and he was not sure whether a former or current employee was involved, he relied on tracking reports provided by CHEP of the movement of pallets to conclude that CHEP pallets on hire by his business and transferred onto the Respondent’s account, were not delivered to the Respondent’s Stanthorpe Depot. However, this documentary material was not produced in evidence by Mr Rogers or the Respondent. The written statement of Mr Pearman, CHEP investigator averts to records of the tracking of movements of CHEP pallets. However, this documentary material was not produced as evidence in the proceedings.

[94] I am not prepared to rely on a commercial settlement as proof of the fact that pallets were not delivered by Rogers Transport. There are many reasons for entering into a commercial settlement which this Tribunal is not privy to.

[95] The level of satisfaction required by the Tribunal is on the balance of probabilities. Having said that I am mindful of what Dixon J said in Briginshaw v Briginshaw: 154

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

[96] The allegation that the Applicant instructed staff at the Stanthorpe Depot to make entries onto 2IC to transfer CHEP pallets on-hire by Rogers Transport onto the Respondent’s account without the pallets having been delivered to the Depot is a serious allegation and the gravity of the consequences flowing from a finding by this Tribunal are significant. At the very least such findings impugn the integrity and honesty of the Applicant. No reason has been proffered for the failure to provide records by CHEP which track the movement of pallets on–hire by Rogers Transport. Yet such material would no doubt be easy to produce and provide an exact proof that pallets on hire by Rogers Transport were not delivered to the Stanthorpe Depot.

[97] I am unable to be reasonably satisfied that pallets were not delivered by Rogers Transport to the Stanthorpe Depot prior to entry of transfer transactions into 2IC. Nor can I be reasonably satisfied, given the failure of the Applicant to obtain delivery dockets or other documentation, that pallets were in fact delivered to the Stanthorpe Depot.

[98] Consequently, I am unable to make a finding on whether or not pallets on hire by Rogers Transport were or were not delivered to the Stanthorpe Depot.

[99] The same considerations apply to the allegations in relation to Turners Transport. The Respondent seeks inferences to be made based on the absence of any known dealings with the transport operator. It would presumably have been a simple exercise to have CHEP provide a report on movements of pallets on-hire by Turners Transport over the relevant period to determine whether 360 pallets were or were not delivered to the Respondent.

[100] I am unable to be reasonably satisfied that pallets were not delivered by Turners Transport to the Stanthorpe Depot prior to the delivery of CHEP pallets to that operator. Nor can I be reasonably satisfied, given the failure of the Applicant to obtain delivery dockets or other documentation, that pallets were in fact delivered to the Stanthorpe Depot.

[101] Consequently, I am unable to make a finding on whether or not pallets on hire by Turners Transport were or were not delivered to the Stanthorpe Depot.

[102] This, however, does not dispose of the matter. I agree with the submissions of the Applicant that the Respondent’s systems and processes in relation to the 2IC were wanting. In particular, I regard the failure of the Respondent, given the financial significance of the CHEP pallet hire to its business to have effective monitoring and risk assessment processes in place as extraordinary. I also accept that the Applicant was not trained in management techniques or the 2IC system. I further accept that the Respondent encouraged its Depot Managers to source pallets from third parties as an efficiency measure. As Depot Manager, the Applicant was not in a senior management position, however he was a manager and thereby was under an obligation to apply the requisite standard of care, including in relation to the transfer or exchange of CHEP pallets. In his dealings, the Applicant failed to apply a reasonable standard of care necessary to protect his employer’s interest. He did not take adequate steps to identify the persons he was dealing with from the other transport operator; for example, by obtaining their full names and contact details. He did not take adequate steps to obtain delivery documentation. Failure to do so once or twice may be excusable but not over long periods of time and involving large quantities of pallets. Permitting non employees to use forklift trucks to unload the pallets is hardly a desirable practice and does raise health and safety issues.

[103] I am not satisfied this lack of care amounts to gross negligence as there is no evidence before the Tribunal of breaches of the Respondent’s policies or protocols by this conduct. Indeed the overwhelming evidence is of a failure by the Respondent to have in force an effective system of monitoring of the 2IC system, including ensuring that proper documentation was provided. Both Depot Pallet Controllers and the National Pallet Controller failed to identify movements which on their own evidence were unusual for a period of one year or to take necessary action to rectify the obvious issues. It is obvious from the records of 2IC produced in evidence that documentation had not been provided and that the name of the Applicant had been recorded instead of the consignment note number. This absence of documentation would have been apparent to Mr Smyth yet no action was taken to change this practice.

[104] I am satisfied, however, that the lack of care exercised by the Applicant is a valid reason for dismissal. The Applicant was a Depot Manager and he was aware of the existence of a black market in CHEP pallets. Common sense would dictate that steps ought to have been made by him to secure the documentation and ensure he had proper details of the persons from the third party transport operators with whom he had made the arrangements.

Alleged conduct in relation to alcohol purchase

[105] The Respondent alleges that the Applicant purchased alcohol using its account with the Central Hotel for purposes other than work related reasons.

[106] The purchases relied on by the Respondent were in evidence. Set out below is a summary of the invoices issued by the Central Hotel to the Respondent which the Applicant stated he recalled as having placed on or authorised another person to place on the Respondent’s account with the hotel. 155

Invoice Number	Date issued	Salesperson	Item(s)
10-90306	22 Jul 2010	Wayne	Bundy Rum Up 700ml
10-90307	22 Jul 2010	Wayne	Bundy Rum Up 700ml Bundy Rum Up 1125ml Bundy SNG UP/Cola can 375ml Bundy SNG UP/Cola can 375ml
10-90308	22 Jul 2010	Wayne	Bundy Rum Up 700ml
10-90309	22 Jul 2010	Wayne	Bundy Rum Up 700ml Bundy Rum Up 700ml Discount marked
10-90314	22 Jul 2010	Wayne	Bundy Rum Up 700ml
10-90315	22 Jul 2010	Wayne	Bundy Rum Up 700ml Bundy Rum Up 700ml Bundy Rum Up 700ml
10-4021	19 Aug 2010	Pete	Bundy Rum Up 700ml Ice - 3.5kg
10-4623	29 Aug 2010	Melissa	Bundy Rum Up 700ml Bundy SNG UP/Cola can 375ml Bundy SNG UP/Cola can 375ml
10-5924	19 Sept 2011	Melissa	Bundy Rum Up 700ml Bundy Rum Up 700ml Discount marked
10-7461	14 Oct 2011	Simone	Bundy Rum Up 1125ml
10-8258	26 Oct 2010	Simone	Bundy Rum Up 700ml Bundy Rum Up 700ml Discount marked
15-78836	24 Nov 2010	Melissa	Bundy Rum Up 1125ml Bundy Rum Up 1125ml Discount marked Ice - 3.5kg Bundy Rum Up 700ml
15-79699	2 Dec 2010	Melissa	Bundy Rum Up 700ml Ice - 3.5kg
15- 79755	2 Dec 2010	Melissa	Bundy Rum Up 1125ml Bundy Rum Up 1125ml
15-81056	13 Dec 2010	Wayne	Bundy Rum Up 700ml
10-3997	24 Dec 2010	Wayne	Bundy Rum Up 700ml
10-4283	30 Dec 2010	Melissa	Bundy Rum Up 700ml Ice - 3.5kg
15-83501	30 Dec 2010	Wayne	Bundy Rum Up 700ml
15-88552	9 Feb 2011	Emma	XXXX CTN Gold STB 375ml Bundy Rum Up 700ml

[107] There is no dispute, and I am satisfied that:

(a) Depot Managers were informed in or about 2010 by the Respondent to improve staff morale by way of barbeques or other functions;

(b) The Applicant was authorised by the Respondent to purchase alcohol on an account held by the Respondent with the Central Hotel;

(c) The purchases summarised in the table at [106] were placed on the Respondent’s account following orders for the purchase of alcohol at the direction the Applicant.

[108] It can be inferred that the Applicant was authorised to purchase alcohol for staff events. It follows, that by authorising the Applicant, the Respondent placed its trust and confidence that the Applicant would use the account properly; that is, to purchase alcohol only for staff functions or entertaining clients and in reasonable amounts.

[109] The issue which arises from the invoices of purchases of alcohol on the Respondent’s account by the Applicant or at his direction is the frequency of the purchases and the fact the purchases are virtually only for rum.

[110] The Applicant’s evidence, in cross-examination, regarding the record of purchases of rum was that there was an arrangement in place such that purchases on behalf of the Respondent would be recorded as rum as it was a cheaper product than beer or wine. The Applicant named Mr Mattazzi, owner of the Central Hotel, as the person with whom the arrangement had been made. The Respondent applied for and was granted leave to call Mr Mattazzi to give evidence. Mr Mattazzi’s evidence was that there was no such arrangement. He stated that it was not in the Hotels’ interests to enter into such an arrangement and that any discount for customers is recorded on the invoice.

[111] In his submissions the Applicant referred to a salesperson named “Wayne” as being a person involved in the arrangement and was critical of the Respondent for failing to call this witness. The difficulty with this submission is that in his evidence the Applicant identified Mr Mattazzi as the person with whom he entered the arrangement. Moreover, if the Applicant held a view that Wayne was involved, the Applicant ought to have sought leave to call Wayne as a witness.

[112] The Applicant submits that the bundle of invoices in Exhibit L2 are “inaccurate and unreliable as to the purchase dates and type of alcohol purchased, consequently the invoices should no be given any evidential weight.” 156

[113] Given Mr Mattazzi, whom the Applicant identified as the person with whom he had the arrangement (that the specification of the alcohol purchased would be rum and not the actual type of alcohol purchased) denied the existence of the arrangement, I do not accept the explanation of the Applicant and, consequently find that the purchases of alcohol were purchases of alcohol as recorded in the invoices and summarised in the table at [106].

[114] The next issue is the frequency of the purchases. The evidence before the Commission as to the frequency of staff events is that of Ms O’Brien that staff events were held “maybe once every two months”. The Applicant’s evidence is that drinks for staff were held on Friday evenings where possible. However, this proposition was not put to other employees of the Respondent who worked at the Depot. Only Ms O’Brien was asked to give evidence on this and I accept her evidence. Consequently, I am satisfied that staff functions were held at the Depot and they occurred no more than once every two months. There was no evidence put as to the frequency of the entertainment of growers.

[115] The Applicant submits that, because Mr Mattazzi agreed that the invoices dated 22 July 2010 may have been the consequence of batching by the administrative staff, the reliability of all other invoices is tainted. I cannot accept this submission. If the invoices dated 22 July 2010 are excluded, the Table discloses purchases of Rum at least each month from August 2010 to December 2010 and in many of those months more than once. On the evidence, the dates of purchases clearly exceed the frequency of the times staff functions were held.

[116] I find that alcohol purchases were made by or at the direction of the Applicant on the Respondent’s account with the Central Hotel:

(a) Almost exclusively of rum; and

(b) More frequently than would be required for staff functions held at the Stanthorpe Depot.

[117] The Applicant submits that “the Applicant, at no time, purchased alcohol for private consumption at the expense of the Respondent”. 157 I accept the Applicant’s evidence that he mainly drinks beer and not exclusively rum. I am not satisfied, on the evidence available, that the purchases of rum were for the Applicant’s private consumption. I am, however, satisfied that the conduct by the Applicant constituted a misuse by him of the Respondent’s account. This satisfaction is based on the direct evidence of the type of alcohol purchased and the frequency of the purchases.

[118] The misuse of the account in my opinion constitutes a breach of the trust and confidence reposed in the Applicant by the Respondent in authorising him to use its account with the Central Hotel. Consequently, I find that the Applicant’s conduct in misusing the account is a valid reason for the Applicant’s dismissal.

Driving a company vehicle without a licence.

[119] As noted earlier, the reason for dismissal given by the Respondent made under the rubric “communications to management of issues” involved three allegations:

(a) the Applicant’s failure to advise the Respondent that he had lost his licence;

(b) driving the company vehicle whilst unlicensed; and

[120] I am satisfied, there being no dispute, that the Applicant did drive a company car whilst unlicensed. The issue in dispute is the Applicant’s awareness that he was doing so. I accept the Applicant’s evidence that, at the time of the speeding fine on 15 November 2011, he thought his good behaviour bond expired and that he was only notified of his speeding fine not that his licence was suspended. I further accept that he only became aware that he was unlicensed on 10 March 2011, when he was stopped by police for a random breath test. Consequently, I am satisfied that the Applicant was not aware at the time that he was driving the vehicle unlicensed.

[121] Given the Applicant’s evidence is not contradicted, I am satisfied that he informed his manager, Mr Casten, that his driving licence had been suspended upon becoming aware in March 2011 that it was suspended and that Mr Casten approved an arrangement under which the Applicant would visit growers when the Respondent’s drivers attended the growers farms. It is apparent that Mr Casten took no action regarding the Applicant’s loss of licence.

[122] I am not satisfied that the suspension of the Applicant’s licence was inconsistent with the continuation of the Applicant’s contract of employment so as to justify termination of the contract. The Applicant’s Employment Agreement 158 provides for a “fully maintained 4WD or equivalent”: Clause 1.

[123] Clause 1 also provides that the primary purpose of the Depot Manager’s position “is to ensure the efficient day to day management of the depot. Other duties assigned”. Clause 2.7 provides “The Employee shall work at the Workplace specified in Clause 1 but the Employee acknowledges that travel (whether intrastate, interstate or overseas) may be required as and when the duties and responsibilities of this position dictate.”

[124] It is to be noted that clause 2.7 provides that the Applicant “may” be required to travel and not “shall” be required to travel. Read in context it is evident that travelling intrastate may have been required to ensure the efficient day to day management of the Depot. The holding of a current licence was not expressed to be a pre-requisite for the position. The Applicant was provided with the use of a company car, although it was not provided for his exclusive use. Having regard to the evidence, I am satisfied that contact with growers by the Applicant could be made by telephone and that the Applicant may well have been able at times to attend growers farms with the Respondent’s truck drivers and could have relied on his second in charge to attend to break downs or otherwise assist in carrying out duties which necessitated the use of a vehicle. This is not to say the absence of a driver’s licence would not have occasioned difficulty at times in ensuring the efficient day to day management of the Depot. However, I am not satisfied that a current licence was essential to the performance of the Applicant’s contract of employment; such as would be the case of a truck driver or Case Manager required to attend clients of the employer. 159

[125] It may well be that disciplinary action such as demotion/suspension/allocation to alternate duties during the period of suspension, as canvassed with the Applicant in cross-examination, 160 was warranted. However, I am not satisfied that termination of his employment was justified.

[126] Consequently I find that this was not a valid reason for the Applicant’s dismissal.

Notification of the reason - s.387(b)

[127] As the reasons which I have found to be valid reasons for the Applicant’s dismissal were raised after the Applicant’s dismissal, this factor is a neutral factor.

Opportunity to respond - s.387(c)

[128] As the reasons which I have found to be valid reasons for the Applicant’s dismissal were raised after the Applicant’s dismissal, this factor is also a neutral factor.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[129] Asthe Applicant did not requestthat a support person be present, this factor is also a neutral factor.

Warnings regarding unsatisfactory performance - s.387(e)

[130] As the reasons which I have found to be valid reasons for the Applicant’s dismissal related to the Applicant’s conduct, this factor is also a neutral factor.

Impact of the size of the Respondent on procedures followed - s.387(f)

[131] The Respondent is a division of a larger corporate entity, Lindsay Australia. Accordingly, this factor is not a relevant factor in considering the procedures followed.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[132] The Respondent is a division of a larger corporate entity, Lindsay Australia which evidently has dedicated human resources management specialists. Accordingly, this factor is not a relevant factor in considering the procedures followed.

Other relevant matters - s.387(h)

[133] The Applicant had some 25 years of employment with the Respondent. I accept that the Applicant had limited educational and trade skills and resides in a regional area of Queensland. I note that the Applicant’s evidence is that he has obtained alternative employment, after a short period of employment as a casual employee, and then subsequently with another transport operator doing business in the region.

[134] As the reasons for dismissal I have found to be valid reasons are reasons which were raised by the Respondent following the Applicant’s dismissal, it is unnecessary to deal with the submissions by the Applicant regarding the failings in the procedures adopted by the Respondent in terminating the Applicant.

[135] I agree with the Applicant’s submissions that the Respondent’s procedural and management practices in relation to the 2IC system were fundamentally flawed. The failure of the Respondent to have in place proper reporting and monitoring system had the consequence that the Applicant’s failure to obtain proper documentation of delivery of pallets continued unchecked. However, on balance, I cannot accept that these failings excuse what can only be described as basic steps which ought to have been taken by a Depot Manager in a country region, to obtain paperwork for deliveries which occurred over long periods of time and to obtain proper details of persons of the transport operator with whom a transfer arrangement had been reached.

[136] More particularly, however, the circumstances personal to the Applicant and his long history of service do not, in my opinion, operate to render a valid reason for dismissal being the misuse of the Respondent’s alcohol account, harsh, unjust or unreasonable. Accordingly, I find the dismissal of the Applicant was not harsh, unjust or unreasonable.

Conclusion

[137] Consequently, I find the dismissal of the Applicant was not unfair and the Applicant’s application is dismissed. An order to this effect will be issued today.

COMMISSIONER

Appearances:

Ms Bridget Cameron - Representative of the Applicant

Mr Chris Mossman - Representative of the Respondent

Hearing details:

2012

Brisbane

19, 20 and 21 November

Final written submissions:

Final Written Submissions of the Applicant - 6 December 2012

Final Written Submissions of the Respondent in Reply - 20 December 2012; and

Final Written Submissions of the Applicant in Reply - 2 January 2013

1 Turner v Lindsay Brothers Management Pty Ltd T/A Lindsay Transport [2012] FWA 2485

2 Letter of Termination, Exhibit L10

3 Respondent’s Closing Submission at [3]

4 Witness Statement of Glen Lindsay, Exhibit L9 at [7] –[10]

5 Ibid at [13]

6 Transcript of Hearing at PN2740 - PN2741

7 Witness Statement of Peter Harslett, Exhibit L3 at [4]

8 Ibid at [5]

9 Transcript of Hearing at PN2129

10 Ibid at PN2151 - PN2153

11 Ibid at PN2134 - PN2147

12 Witness Statement of Peter Harslett, Exhibit L3 at [3]

13 Transcript of Hearing at PN2306

14 Ibid at PN2307 – PN2310

15 Ibid at PN2830 - PN2840

16 Ibid at PN1827

17 Ibid at PN 1835- PN1836; Witness Statement of Rodney James Turner dated 12 November 2012, Exhibit T6 at [30]

18 Ibid at PN1836, PN1839, PN1853

19 Witness Statement of Rodney James Turner dated 12 November 2012, Exhibit T6 at [31]

20 Witness Statement of Vito Morello, Exhibit T3 at [2], Transcript of Hearing at PN839

21 Transcript of Hearing at PN840

22 Ibid at PN852 - PN853

23 Ibid at PN873 - PN874, PN880 - PN884, PN887 - PN889

24 Ibid at PN896 - PN898

25 Witness Statement of Brian Leslie Butler, Exhibit T4 at [2] - [4]

26 Transcript of Hearing at PN965 – PN966

27 Ibid at PN972 - PN983, PN993

28 Exit Interview of Brendon Barker dated 19 May 2011, Exhibit L12

29 Witness Statement of Rodney James Turner dated 12 November 2012, Exhibit T6 at [28]

30 Transcript of Hearing at PN2985

31 Witness Statement of Glen Lindsay dated 21 May 2012, Exhibit L9 at [12]

32 Transcript of Hearing at PN2863

33 Witness Statement of Glen Lindsay dated 21 May 2012, Exhibit L9 at [14] – [15]

34 Transcript of Hearing at PN168 - PN1687

35 Witness Statement of Rodney James Turner dated 30 April 2012, Exhibit T5 at [38]

36 Transcript of Hearing at PN1734 - PN1737

37 Witness Statement of Rodney James Turner dated 30 April 2012, Exhibit T5 at [44].

38 Ibid at [36] - [37]

39 Ibid at [38]

40 Transcript of Hearing at PN1736

41 Witness Statement of Rodney James Turner dated 30 April 2012, Exhibit T5 at [39] - [41]

42 Ibid at [44]; Exhibit L1

43 Witness Statement of Rodney James Turner dated 30 April 2012, Exhibit T5 at [19]; Transcript of Hearing at PN 1716, PN1788

44 Transcript of Hearing at PN2807

45 Ibid at PN2821- PN2826

46 Transcript of Hearing at PN1731, PN1784

47 Ibid at PN1780

48 Ibid at PN1594 - PN1595, PN1610

49 Ibid at PN 1599

50 Ibid at PN1611

51 Ibid at PN1617

52 Ibid at PN1618

53 Witness Statement of Rodney James Turner dated 30 April 2012, Exhibit T5 at [33]; Transcript of Hearing at PN1651

54 Ibid at PN1656

55 Witness Statement of Rodney James Turner dated 30 April 2012, Exhibit T5 at [42] and [43]; Transcript of Hearing at PN1623, PN1644

56 Bundle of Invoices including Statement from Central Hotel Stanthorpe, Exhibit L2.

57 Transcript of Hearing, PN1129 – PN1183

58 Ibid

59 Witness Statement of Rodney James Turner dated 12 November 2012, Exhibit T6 at [89]

60 Transcript of Hearing, at PN1194 – PN1197

61 Ibid at PN1212 and PN1214

62 Ibid at PN1104

63 Ibid at PN1959

64 Witness Statement of Memo Mattazzi, Exhibit L7

65 Transcript of Hearing at PN2574-PN2580

66 Ibid at PN2583-2586

67 Ibid at PN2582, PN2585, PN2587

68 Ibid at PN2587-PN2589

69 Ibid at PN2627

70 Ibid at PN2614 – PN2617

71 Ibid at PN3095

72 Ibid at PN1252- PN1254

73 Ibid at PN1257 - PN1258

74 Ibid at PN1261

75 Ibid at PN3097

76 Ibid at PN1270- PN1271

77 Witness Statement of Rodney James Turner dated 12 November 2012, Exhibit T6 at [71]-[72].

78 Ibid at PN1378, PN1962 – PN1963

79 Witness Statement of Rodney James Turner dated 12 November 2012, Exhibit T6 at [73] - [74]; Transcript of Hearing at PN1963

80 Ibid at PN1299 – PN1321

81 Pallet Control Memo, Attachment JS2 to the Witness Statement of John Augustine Smyth, Exhibit L17; Transcript of Hearing, PN1331 –PN1337

82 Ibid at PN1339

83 Ibid at PN1355-PN1367

84 Ibid at PN1380

85 Ibid at PN1390-1392, PN1413, PN1481-PN1482 and Witness Statement of Rodney James Turner dated 12 November 2012, Exhibit T6 at [78] - [79]

86 Ibid at PN1469

87 Ibid at PN1472

88 Witness Statement of Rodney James Turner dated 12 November 2012, Exhibit T6 at [79], Transcript of Hearing at PN1504

89 Transcript of Hearing at PN1419

90 Ibid at PN1424

91 Attachment JS2 to the Witness Statement of John Augustine Smyth, Exhibit L17; Transcript of Hearing at PN1430 - PN1440

92 Transcript of Hearing at PN1902 – PN1903

93 Ibid at PN1379

94 Ibid at PN1446-PN1452

95 Ibid at PN1289 - 1296, PN1456 - PN1458

96 Ibid at PN1308 - PN1312

97 Witness Statement of Gary Rogers, Exhibit L6 at [3] - [6]

98 Ibid at [9] – [10]

99 Transcript of hearing at PN2470 - PN2471

100 Ibid at PN2480

101 Ibid at PN2486

102 Ibid at PN2481, PN2484, PN2487

103 Ibid at PN2499, PN2401 – PN2505

104 Ibid at PN2513

105 Ibid at PN2509

106 Witness Statement of Emma O’Brien, Exhibit L13

107 Transcript of Hearing at PN3021

108 Ibid at PN3079

109 Ibid at PN3080

110 Ibid at PN3081

111 Witness Statement of Katie Ann Butler, Exhibit L16

112 Transcript of Hearing at PN3234 – PN3237

113 Ibid at PN3238-PN3239

114 Ibid at PN3250, PN3252

115 Ibid at PN3269, PN3271 – PN3275

116 Ibid at PN3289 - PN3292

117 Witness Statement of Warren James Barker, Exhibit L14 at [2]-[5]

118 Ibid at [6]-[7]

119 Transcript of Hearing at PN3154

120 Ibid at PN3160 - PN3161

121 Witness Statement of Ian Leslie Bausch, Exhibit L15 at [2]

122 Transcript of Hearing at PN3182 – PN3188

123 Witness Statement of John Augustine Smyth, Exhibit L17

124 Ibid at Attachment JS-2

125 Ibid at Attachment JS-1

126 Ibid at [7]-[9]

127 Ibid at [10]

128 Transcript of Hearing at PN3346

129 Ibid at PN3345

130 Ibid at PN3349

131 Ibid at PN3357, PN3359

132 Ibid at PN3373

133 Ibid at PN3385

134 Ibid at PN3414

135 Ibid at PN3390, PN3394

136 Ibid at PN3400 – PN3403

137 Ibid at PN3405

138 Witness Statement of John Augustine Smyth, Exhibit L17 at Attachment JS-2

139 Transcript of Hearing at PN3369 - PN3373

140 Ibid at PN3416

141 Witness Statement of Anthony Graham Pearman, Exhibit L5

142 Transcript of Hearing at PN2367

143 Witness Statement of Anthony Graham Pearman, Exhibit L5 at [11]

144 Transcript of Hearing at PN1079, PN1095

145 [1995] HCA 24; (1995) 131 ALR 422; (1995) ALJR 797; (1995) 185 CLR 410 (11 October 1995)

146 Ibid at [128]

147 [1995] 62 IR 371 at 373.

148 See MMCables v Zammit, Print S8106, Aperio Group Pty Ltd T/A Aperio Finewrap v Salemovski [2011] FWAFB 1436

149 Transcript of Hearing at PN3416

150 Witness Statement of John Augustine Smyth, Exhibit L17 at Attachments JS-1 and Attachment JS-2

151 Ibid

152 Table - Ready Reckoner of Pallet Hire Costs Lost from 29/07/2012 to 14/11/2012 - Exhibit L18

153 Exhibit L17, Attachment JS-2

154 (1938) 60 CLR 336 at 361-362

155 Exhibit L2

156 Final Submissions of the Applicant at [79]

157 Ibid at [77]

158 Employment Agreement between Lindsay Australia and Rodney Turner, Exhibit T8

159 Cf Gibon v Isis Primary Care Ltd[2010] FWA 2101

160 Ibid at PN1805 – PN1807

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