Roland Barber v Veolia Recycling and Recovery Pty Ltd

[2025] FWCFB 141

[2025] FWCFB 141

The attached document replaces the document previously issued with the above code on 10 July 2025

The medium neutral citation at [125] (c) has been corrected.

Associate to Vice President Gibian

Dated 10 July 2025

[2025] FWCFB 141

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Roland Barber
v

Veolia Recycling and Recovery Pty Ltd

(C2025/1347)

VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT LAKE
DEPUTY PRESIDENT SLEVIN SYDNEY, 10 JULY 2025

Appeal against decision [2025] FWC 403 of Commissioner McKinnon at Sydney on 12 February 2025 in matter number U2024/9197 – Finding that there was a valid reason for dismissal as a result of a series of incidents and allegations – Whether Commissioner made findings which went outside the cases presented by the parties – Whether appellant denied procedural fairness – Obligations of Commission member to put party on notice of matters not obviously at issue – Whether significant errors of fact – Permission to appeal granted – Appeal allowed and decision quashed – Application redetermined by the Full Bench – Valid reason for dismissal but dismissal harsh – Reinstatement ordered.

Introduction and background

1. Roland Barber seeks to institute an appeal, if permission is granted, from a decision of Commissioner McKinnon of the Fair Work Commission (the Commission).[1] The decision concerned an application for an unfair dismissal remedy made by Mr Barber pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act). The Commissioner dismissed the application, finding that Veolia Recycling and Recovery Pty Ltd had a valid reason for terminating Mr Barber’s employment and that, in the circumstances, the dismissal was not harsh, unjust or unreasonable.[2]

1. Mr Barber commenced casual employment with Veolia and its predecessors in 2008 as a side loader driver. A side loader driver operates a side loader vehicle which uses mechanical arms to lift and empty bins. He became a full-time employee in approximately September 2014. Since around this time, he has been a delegate for the Transport Workers Union of Australia (the TWU) as well as being an elected Health and Safety Representative for the 7 years prior to his dismissal.

1. The termination of Mr Barber’s employment resulted from a series of distinct incidents which took place between October 2023 and July 2024. Mr Barber was the subject of a number of safety incidents in relation to which he was issued two written warnings. Mr Barber was involved in minor accidents on 9 October 2023 and 11 October 2023 whilst driving the garbage truck resulting in him being issued with a warning letter on 27 October 2023. On 14 February 2024 and 15 February 2024, Mr Barber was observed seated in the operator/pickup side whilst operating the vehicle and not yet on a run. On 28 February 2024, Mr Barber was observed travelling at more than the speed limit of 10 kilometres per hour on a road adjacent to the yard. Those incidents resulted in a second warning letter being issued on 19 March 2024. On 10 April 2024, a stop work incident over safety concerns took place. Two days later, on 12 April 2024, Mr Barber was issued with a stand down letter arising from the incident. Mr Barber’s conduct at the meeting at which he was stood down resulted in him being given an “allegations letter” alleging, in summary, that he had failed to comply with a direction to keep the stand down letter confidential.

1. The final workplace incident Mr Barber was involved in was that, on 21 June 2024, Mr Barber was subject of drug and alcohol testing was conducted in the early hours of the morning. Mr Barber returned a blood alcohol content (BAC) reading of 0.013%, which was confirmed some time later (although there is contested evidence over how long later and what occurred in the intervening period between tests)[3] by a confirmatory test which recoded a BAC reading of 0.007%. This incident, and the other incidents described above, will be discussed further below in this decision.

1. On 27 June 2024, Mr Barber met with Veolia in relation to the positive BAC test and was issued a show cause letter. The letter noted the previous written warnings he had received and advised that Veolia was contemplating the termination of his employment. Mr Barber was invited to respond by 2 July 2024, which Mr Barber did. His response included accepting responsibility for returning a non-negative BAC test, however he also stated that the second test was “below the company policy of 0.00”. Mr Barber said this had taken a toll on himself and his family, as a Health and Safety Representative and a delegate in the yard, that he felt he had been targeted on minor issues lately and that they should work together to provide the necessary training and support to all team members as standing him or any future employee down for a 0.007% result was extreme as it was “below the 0.00”. Finally, Mr Barber said he was committed to improving his performance and contributing positively to the team.

1. On 16 July 2024, Mr Barber attended a disciplinary meeting. At the meeting, Mr Barber was handed a letter of termination stating that his employment was terminated with immediate effect. Mr Barber applied to the Commission for an unfair dismissal remedy under s 394 of the Act on 6 August 2024. The matter was then heard over two separate hearing days on 20 November and 17 December 2024. The Commissioner handed down her decision dismissing the application on 12 February 2025.

1. On 26 February 2025, Mr Barber filed a notice of appeal alleging that he was denied procedural fairness, that the Commissioner failed to consider arguments advanced in relation to harshness and other relevant considerations, that she relied on conduct not relied upon by Veolia and failed to account for the lack of opportunity to respond to allegations against his conduct and made significant errors in fact-finding. Without objection, Mr Barber provided a further amended notice of appeal during the hearing of the appeal which withdrew some of the original grounds of appeal. 

Decision under appeal

1. The Commissioner, when determining whether there was a valid reason for the termination for the purposes of s 387(a) of the Act, identified five matters of Mr Barber’s misconduct that, together and in context, she considered provided a valid reason for his dismissal.[4]

1. Firstly, the Commissioner identifies the two vehicle crashes where Mr Barber, who was the driver, admitted to causing the accidents through his own lack of caution. The first accident was caused by taking a corner too quickly and the second by not checking that the loading arm had retracted before moving forward.[5]

1. Secondly, the Commissioner found that, contrary to Veolia’s safety policies, Mr Barber had operated his vehicle using the left-hand side controls on more than one occasion in February 2024.[6] The Commissioner found that the rule was clear, and that Mr Barber had breached it on more than one occasion and was well aware of the policy.

1. Thirdly, the Commissioner found that Mr Barber drove over the 10 kilometre per hour speed limit on the public road adjacent to the Arncliffe depot which was contrary to Veolia’s reasonable and lawful direction.[7]

1. Fourthly, the Commissioner made findings about Mr Barber’s conduct on the day of his stand down, 12 April 2024. The Commissioner found that not only did he tell the other drivers he had been stood down, after being issued a lawful and reasonable direction about confidentiality, but he also engaged in other conduct after the meeting at which he had been stood down. The Commissioner made detailed factual findings about those matters.[8] The Commissioner’s conclusions in relation to the events which took place on 12 April 2024 were as follows:[9]

Conduct in connection with stand-down: Mr Barber agrees that he told other drivers he had been stood down after leaving the meeting on 12 April 2024. If that were all there were to the events of 12 April 2024, disciplinary action would likely have been an overreaction in the circumstances. But the events of that day were much more volatile than the resulting warning letter discloses. When Mr Barber was told he was being stood down, he threatened his manager with the loss of his house, and his manager’s manager with the loss of his job. He refused more than one reasonable and lawful direction to leave the site. The commotion that followed caused work to be delayed for all drivers in the yard for up to three hours. The related photocopier incident only occurred because of Mr Barber’s attempt to defy an earlier reasonable and lawful direction about confidentiality by trying to make 50 copies of his stand down letter to put in each driver’s pigeonhole.

1. Fifthly, the Commissioner made the following findings about Mr Barber’s positive BAC test. The Commissioner found the test results reliable as the testing device was within its calibration date and, following expert evidence, the test result was valid and correct. After hearing expert evidence, she went on to state that the result was a low level positive and that under the Road Transport Act 2013 (NSW) Mr Barber would have been able to drive the side loader as it was below the 0.02% level. The Commissioner accepted the expert evidence that neither cologne nor hand sanitiser would have affected the test results.[10] No evidence was led that Mr Barber deliberately or unwittingly interfered with the testing protocol such that the results were brought into question.[11] Further the testing protocol was followed and in accordance with the Australian Standard AS/NZS4760.[12] The Commissioner considered the possibility of impairment and accepted the expert evidence of Dr Williams that there is no safe level for impairment and while there is alcohol in the body there is impairment. She acknowledged that Mr Barber may not have felt the effects of alcohol, but that impairment could not be excluded.[13] In considering the evidence of Mr Barber, the Commissioner stated that although Mr Barber did not perhaps intend to attend work whilst under the influence, that there was a degree of recklessness to his behaviour in knowing that given his start time of 4:15am, he would be getting little sleep.[14]

1. In relation to the valid reason question, the Commissioner did not believe any of the matters about which Mr Barber had been warned, in isolation, justified dismissal, but concluded that the various breaches of Veolia’s policies and directions which she had found occurred were sufficient to constitute a valid reason for dismissal. The Commissioner’s conclusions in relation to valid reason were as follows:[15]

Conclusion on valid reason: In each of the incidents described above, Mr Barber acted in a manner that was inconsistent with important policies of Veolia including: the Code of Conduct; the Life Saving Rules; the Driver Operator Manual; the Safe Operating Procedures and related Operating Instructions; and the Drug and Alcohol Policy. These policies contained a series of reasonable and lawful directions that had a purpose of ensuring Mr Barber’s safety as well as the safety of others. To the extent that they were intended to protect against serious injury or damage (as they mostly were) they are capable of being characterised as “safety critical”. Separate to the safety breaches, Mr Barber threatened his managers with adverse consequences in connection with his stand down on 12 April 2024 and on the same day repeatedly refused to do what he was asked: that is, to keep the disciplinary matter confidential and leave the site.

Mr Barber’s experience over many years as a garbage truck driver for Veolia and its predecessors included operating heavy vehicles while interacting regularly with members of the public in and around public roads. He had received training on the matters covered in the policies identified above, including most recently on the Life Saving Rules and a briefing from the Road Safety team. He was a union delegate and workplace health and safety representative of long standing and can be taken to have had at least a general understanding of the existence of these policies, his obligation to comply with them, and where to find them if needed.

None of the matters about which Mr Barber was warned would, in isolation, warrant or justify his dismissal. But when understood in their full context and considered in totality, I am satisfied that by the time the events of 21 June 2024 unfolded, Mr Barber’s too frequent breaches of Veolia’s policies and directions were of sufficient gravity to constitute a sound, defensible and well-founded reason for dismissal. They showed a repeated disregard for safety and an unwillingness to cooperate with Veolia’s instructions or to follow its safety policies and procedures. I find valid reason for the dismissal.

1. The Commissioner was satisfied that Mr Barber had a reasonable opportunity to respond to the conduct issues raised against him and relied on by her to form a valid reason for dismissal.[16] The Commissioner noted there was no unreasonable refusal by Veolia to allow a support person.[17] The Commissioner found that Mr Barber was warned three times regarding compliance with the old safety policies – a first written warning,  a second written warning and a final written warning were issued prior to the show cause letter and the decision to dismiss.[18] The Commissioner noted Veolia is a business of significant size and had access to human resources and related expertise.[19]

1. Under “other relevant matters” the Commissioner considered Mr Barber’s personal circumstances. She noted that Mr Barber had worked for Veolia for approximately sixteen years and is in his mid-fifties. The Commissioner noted Mr Barber’s financial and family responsibilities, and that he has been distressed since losing his job. However, she noted that he had every chance of finding a new role as experienced drivers were sought after in the labour market.[20] The Commissioner addressed a matter that was raised by Mr Barber in which he stated that he was dismissed because of his involvement in industrial activity. The Commissioner does identify that the events of 12 April 2024 occurred in the context of some tension at the workplace as a result of alleged unprotected industrial action two days earlier. However, she goes on to say there is insufficient material to support a finding of unprotected industrial action and notes that such action would not prevent Mr Barber from being stood down for threatening his manager, for trying to photocopy a confidential letter or for failing to comply with a direction to leave the site.[21]

1. The Commissioner identified that there was a practice of driving on the left-hand side of the vehicle but found the evidence did not establish how common this practice was. Further, it did not establish that Mr Barber was singled out for it or that Veolia did not address that issue with other drivers.[22] The Commissioner noted the evidence which indicated that some other drivers had been treated more leniently in cases of a positive alcohol test but concluded that in neither of the examples provided did the employee concerned have a similar disciplinary history of safety-related breaches to that of Mr Barber. The Commissioner found that Mr Barber was not treated unfairly compared to other employees in the same position. The Commissioner addressed the issue that Veolia had failed to follow its own drug and alcohol policy in various ways. However, the Commissioner considered that the failure of Veolia to follow its process under the drug and alcohol policy was of marginal significance to the outcome of Mr Barber’s dismissal.[23] The Commissioner further found that Mr Barber lacked genuine remorse and that it came only after proceedings were instituted and after the event.[24]

Grounds of appeal

1. Mr Barber filed amended grounds of appeal during the hearing, which we accepted. Mr Barber’s grounds of appeal can be summarised in the following way:

(a)Ground 1 asserts a denial of procedural fairness by the Commissioner making adverse findings against Mr Barber about his conduct in circumstances where Veolia did not contend for those findings by way of evidence or cross-examination. Mr Barber asserts that the Commissioner relied on these findings in relation to valid reason where such findings were not relied upon by Veolia in its case for a valid reason for dismissal.

(b)Ground 2 alleges that the Commissioner failed to consider substantial and clearly articulated arguments advanced by Mr Barber in relation to harshness.

(c)Ground 3 contends that the Commissioner, in making findings about the events of 12 April 2024, relied upon conduct outside those relied upon by Veolia. As a result, the Commissioner erred in failing to consider, under s 387 (b) and (c) of the Act, whether Mr Barber had been notified of the reasons for termination and whether he was given an opportunity to respond to the reasons for termination.

(d)Ground 4 alleges that the Commissioner made significant errors of fact. Those alleged errors are: firstly, in finding that there would have been somewhere for Mr Barber to pull over and change driving sides on 14 February 2024; secondly, in finding she was not satisfied that there were any places on the 15 February 2024 to pull over and change sides; thirdly, in finding that Mr Barber was not genuinely remorseful about returning a the 0.007% BAC reading; fourthly, in finding that Mr Barber was aware that there was a 10 kilometre per hour speed limited imposed by Veolia on the road adjacent to the yard; and finally, in finding that the speed limit requirement was regularly communicated to drivers at toolbox talks.

(e)Ground 5 alleges the Commissioner failed to take into account the evidence of Mr Beasley when considering Mr Barber’s conduct on 15 February 2024.

(f)Ground 6 is similar to Ground 3. Mr Barber argues that the Commissioner failed to take into account under s 387(b) and (c) of the Act that Mr Barber was not afforded an opportunity to respond to allegations of speeding on 28 February 2024.

Permission to appeal

1. There is no right to appeal and an appeal may only be made with the permission of the Commission. The Full Bench must grant permission to appeal if satisfied that it is in the public interest to do so.[25] Otherwise, the Full Bench has a broad discretion as to whether permission to appeal should be granted.[26]

1. This discretion is further confined in respect of applications for permission to appeal deriving from unfair dismissal proceedings under Part 3-2 of the Act. Section 400 of the Act provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so. 

(2)Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact. 

1. Section 400 evinces an intention that the avenue of appeal for unfair dismissal proceedings ought to be confined more than appeals from other kinds of proceedings, thus the commonly quoted characterisation of the test being a “stringent one”.[27] Permission to appeal can only be granted if the Full Bench is satisfied it is in the public interest to do so, and no residual discretion exists if that threshold is not met.[28]

1. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgement.[29] In GlaxoSmithKline Australia Pty Ltd v Makin,[30] a Full Bench identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from  an appellate court is required, or where the decision  at first  instance manifests an  injustice,  or the  result  is  counter intuitive,  or that the  legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”

1. Section 400(2) provides that, with respect to factual findings made in unfair dismissal proceedings, review on appeal is only available if there has been a “significant” error of fact. A person may not appeal on grounds of an alleged error of fact that does not reach the significance threshold.[31]

1. Mr Barber argues that it is in the public interest for permission to appeal to be granted as the Commissioner’s decision manifests an injustice because the Commissioner decided the case adversely to Mr Barber on grounds not advanced or relied upon by Veolia, without considering the arguments of harshness put by Mr Barber and involves several significant errors of fact. Mr Barber submits that the appeal raises issues of general importance and application concerning the approach to be adopted in the determination of unfair dismissal proceedings where the Commission takes into account conduct not relied upon by the employer and in relation to fact finding where evidence is uncontested. Mr Barber further submits that the approach of the Commissioner with respect to s 387(b) and (c) of the Act was inconsistent with the decision of the Full Bench in Newton v Toll Transport Pty Ltd [2021] FWCFB 3457; (2021) 307 IR 140 (Newton) in relation to the requirements of the Commission when relying upon different conduct to that relied upon by the employer.

1. Veolia argues that there are a significant and large number of unchallenged findings of misconduct, some of which involved safety critical policies, by an individual who had been trained and held positions of site delegate and health and safety representative. Veolia argues that, even if some of the errors are made out, they occur against the backdrop of a person who had a record of defying lawful and reasonable policies and directions. Veolia contends that the Full Bench should not grant permission to appeal having regard to these numerous instances of misconduct. Furthermore, it contends that even if there are errors, they are not consequential. Veolia argues that even if the Full Bench found the errors were material, it is not necessary for the Full Bench to quash the decision as, if those errors were excluded, it would not make any difference to the outcome.

1. We are satisfied it is in the public interest to grant permission to appeal. For reasons which will become apparent, we have concluded that Mr Barber was denied procedural fairness at first instance by reason of the Commissioner making adverse findings in relation to Mr Barber’s conduct that was not relied upon by Veolia at the time of dismissal or in the proceedings at first instance. Permission to appeal should be granted to permit the Full Bench to correct the error. Furthermore, we agree that the grounds of appeal raise issues of wider importance to the conduct of unfair dismissal proceedings before the Commission, in particular in relation to the approach to be adopted if the Commission proposes to make findings, or rely upon matters, not advanced by the parties.

Consideration

Ground 1(a) and 1(b) - Procedural Fairness

1. The key proposition that Mr Barber puts forward and asserts in Ground 1, is that the Commissioner considered and made findings on conduct matters that Veolia did not rely on in their show cause or termination letter or as conduct justifying a conclusion that there was a valid reason for dismissal and about which Mr Barber was not cross-examined. Grounds 1(a) and (b) contend that Mr Barber was denied procedural fairness by reason of the fact that the Commissioner made findings about, and relied upon as part of a valid reason for dismissal, alleged conduct on the part of Mr Barber on 12 April 2024 about which Veolia did not seek findings or submit constituted a valid reason for dismissal.

1. It is open to the Commission to find that there is a different valid reason for dismissal, other than the one put forward by the employer. This is made clear in Newton where the Full Bench said:[32]

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

1. However, if the Commission determines a valid reason for dismissal exists which has not been put forward by the employer, the Commission must act judicially and afford the parties procedural fairness. An applicant must be put on notice and have a fair opportunity to address a matter the Commission proposes to rely upon adverse to the applicant’s case. That principle was explained by the Full Bench in Newton[33] and expanded upon in other decisions including Steed v Active Crane Hire Pty Ltd [2023] FWCFB 152. In Steed, the Full Bench referred to Newton and said:[34]

The Full Bench went on to find that Mr Newton was not afforded procedural fairness in respect of the Deputy President’s findings of dishonesty and the imputed motive for the dishonesty, and that a finding of the type made by the Deputy President carries with it an obligation to accord the relevant party procedural fairness. The Full Bench concluded “absent the matter being squarely put by the cross-examiner it was incumbent on the Deputy President to make the challenge himself”.

The principle to be derived from Newton and the cases cited by the Full Bench, is that where a finding on a critical issue or factor adverse to a party is being considered by a Member of the Commission hearing a matter, and the finding does not follow from the evidence or relates to a contention that was not raised in the hearing of the matter, the Member conducting the hearing should put the proposition to the parties and the basis for it, so that the affected party has an opportunity to respond. This is particularly so when the finding is foundational to a conclusion about a matter central to the case advanced by the party. A failure to do so will generally amount to a denial of procedural fairness

1. The obligation of the Commission to act judicially and that the principles of natural justice are applicable to proceedings before the Commission are not in doubt.[35] We are conscious, however, that the Commission is a statutory body and its functions are subject to the terms of the Act. Section 577 of the Act directs that the Commission must perform its functions in the following manner:

(1)  The FWC must perform its functions and exercise its powers in a manner that:

(a)is fair and just; and

(b)is quick, informal and avoids unnecessary technicalities; and

(c)is open and transparent; and

(d)promotes harmonious and cooperative workplace relations.

1. What is required to ensure that a party is on notice of, and has a fair opportunity to address, matters of significance to a decision of the Commission will vary from case to case. The nature of the matters at issue, the manner in which the proceedings are conducted and the characteristics of the parties involved are likely to be relevant as will the statutory context in which the Commission exercises its functions. For example, where the parties are self-represented, in order to fulfil the Commission’s functions, a member may be required to determine the matter in a different manner to what is put forward by the parties. This is especially so where the arguments of the self-represented parties are misconceived. The member of the Commission may, in such circumstances, be compelled to take on a more inquisitorial role to ascertain the truth of what occurred.

1. Further, whilst a member of the Commission must generally put a person on notice if they intend to make adverse findings on issues which are not otherwise apparent from the position adopted by the parties, procedural fairness does not require a tribunal to give a running commentary upon what it thinks about the evidence that is given or the issues which arise in the proceedings.[36] In Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594, French CJ and Kiefel J explained:[37]

Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.

1. Where a denial of procedural fairness is alleged on appeal, the question will be whether the appellant had a fair opportunity to present their case and to deal with matters of significance to the decision made at first instance.

1. Grounds 1(a) and (b) concern the findings made by the Commissioner in relation to the 12 April 2024 incident. Arising from that incident, Mr Barber was issued with an allegations letter dated 23 April 2024 and a final written warning on 9 May 2024. There were two allegations made in the allegations letter. It was alleged that Mr Barber was told to maintain confidentiality regarding his stand down and said that he would not be keeping the letter confidential and “I will be letting everyone know” and it was alleged that the standdown letter directed that Mr Barber not discuss details of the matter or engage with other persons in the workplace and that, in breach of the direction, Mr Barber left the meeting and announced that he had been stood down. Mr Barber responded to those two allegations on 26 April. The final warning letter dated 9 May 2024 found the same two specific allegations to be substantiated.

1. The termination letter dated 16 July 2024 then stated:

Notice of Termination of Employment
This letter confirms the meeting held today, 16 July 2024, regarding your conduct over the past 12 months.

Most recently, you presented for work on Friday 21 June 2024 with an alcohol reading above zero which is a breach of the applicable Drug and Alcohol Procedure. The reasons why Veolia views this breach most seriously were explained to you at our prior meeting on 27 June 2024.

At the 27 June 2024 meeting you were invited to provide a response by 1 July 2024 as to why your employment should not be terminated, having regard to:

·Your conduct on 21 June 2024;

·Your conduct on [9 and 11 October 2023] for which you received a written warning on [27 October 2023];

·Your conduct on [14 and 15 February and 28th February 2024] for which you received a written warning on [19 March 2024]; and

·Your conduct on [12 April 2024] for which you received a written warning on [9 May 2024].

You provided a response on Tuesday, 2 July 2024 following an extension of time which was granted at your request.

Veolia carefully considered your response. While noting it may not have been your intention to attend work with a blood alcohol reading above zero, the fact remains that you did. Had it not been for the random drug and alcohol test that took place that morning, you would have been operating a heavy vehicle while in breach of this fundamental safety requirement. Even a reading of 0.007 is not zero (noting your initial reading was 0.013).

You were expressly put on notice on [9 May] 2024 that you had received a final warning. Veolia rejects your suggestion that you have been targeted for minor issues. You have repeatedly shown disregard for Veolia’s lawful and reasonable requirements and breached your obligations as an employee and are being dealt with in accordance with Veolia’s standard disciplinary process

1. Relevantly, the letter of termination referred to Mr Barber’s conduct on 12 April 2024 “for which you received a written warning”.

1. In relation to the 12 April 2024 incident, Veolia’s written submissions filed in advance of the hearing at first instance said:

11. On 12 April 2024, the Applicant was called into a meeting where he was advised he was to be stood down (with pay) pending an investigation into his alleged misconduct. The Applicant was handed a letter to this effect. The Applicant was instructed, both verbally and in the letter, that he was to keep the matter confidential. In response, the Applicant informed the Respondent he would not be keeping the matter confidential and would be letting everyone know. Then, on leaving the meeting the Applicant immediately announced to other employees in the yard “they have stood me down” and later sought to use the office photocopier so, he said, he could make copies of the letter to provide to his colleagues.  Consequently, on 9 May 2024, the Applicant was issued with a final written warning (Final Written Warning).

1. In relation to whether there was a valid reason for dismissal, Veolia’s written submissions were as follows:

20. The Respondent operates in a safety critical environment, and is entitled to implement and expect compliance with its policies – including its D&A Procedure – in order that it can discharge its own obligations to take reasonable steps to ensure the safety of persons working at its facility and operating its waste collection vehicles. 

21. That a breach of a lawful and reasonable policy constitutes a valid reason for dismissal is trite, particularly when that breach forms part of a broader record of indiscretion and, indeed, the Applicant’s breach of the D&A Procedure was the ‘final straw’ in the context of the Applicant’s extensive disciplinary history.

22. As such, there can be no serious contention that the Applicant’s conduct gave rise to a valid reason for the termination of his employment.

1. Mr Barber argues that the reasons for the termination, as put forward in the termination letter, and the matters relied upon by Veolia in advance of and at the hearing before the Commissioner, were limited to his conduct on 21 June 2024, as well as previous conduct for which he had been disciplined. In relation to the 12 April incident, Mr Barber says he only understood that Veolia relied upon an allegation that he had failed to comply with a direction to maintain confidentiality in relation to the decision to stand him down on that day.

1. In addressing the 12 April 2024 incident, the Commissioner concluded that, if Mr Barber’s conduct was limited to telling other drivers he had been stood down, disciplinary action would likely have been an overreaction. However, the Commissioner made further findings in relation to Mr Barber’s conduct on 12 April 2024 which included that Mr Barber threatened his manager with the loss of his house, and his manager’s manager with the loss of his job, refused more than one reasonable and lawful direction to leave the site, attempted to make 50 copies of his stand down letter to put in each driver’s pigeonhole and caused a commotion that caused work to be delayed for all drivers in the yard for up to three hours.[38] In her conclusions as to whether there was a valid reason for dismissal, the Commissioner expressly referred to Mr Barber having “threatened his managers with adverse consequences in connection with his stand down on 12 April 2024 and on the same day repeatedly refused to do what he was asked: that is, to keep the disciplinary matter confidential and leave the site”.[39]

1. Mr Barber says that, as a result, adverse findings were made about his conduct to which he did not have a fair opportunity to address in the proceedings at first instance. Veolia argues that there was no denial of procedural fairness. It says that the matters relied upon by the Commissioner in relation to Mr Barber’s conduct on 12 April 2024 were raised in the witness statement filed by one of its witnesses, Mr O’Connor, and Mr Barber had the opportunity to reply to that evidence. Further, Veolia argues that it was open to the Commissioner to prefer Mr O’Connor’s account of the events of 12 April 2024 in light of Mr Barber’s comments that he had been in shock and did not have a clear recollection of what had occurred.

1. The allegations that Mr Barber had threatened managers, refused to leave the site and attempted to make copies of the standdown letter were referred to in a witness statement made by Mr O’Connor and filed by Veolia in advance of the hearing. Mr Barber had replied to that evidence in his witness statement in reply and, at least in relation to allegations that he had threatened managers, denied the allegations. In those circumstances, it cannot be said that the findings made by the Commissioner in relation to the further alleged conduct of Mr Barber on 12 April 2024 represent adverse conclusions which were not obviously open on the material. However, in the circumstances of this case, we are satisfied that Mr Barber was denied procedural fairness in relation to the additional findings made in relation to the 12 April 2024 incident because of the manner in which the proceedings were conducted.

1. A number of features of the conduct of the proceedings are significant. First, both parties were legally represented. Directions were issued for the filing of written submissions and evidence in advance of the hearing which was done. The written submissions filed on behalf of Veolia did not identify that it contended there was a valid reason for dismissal as a result of the conduct of Mr Barber on 12 April 2024 other than in the manner set out in the allegations letter of 23 April 2024 and the final warning letter of 9 May 2024. As Mr Barber submitted, if he had known that Veolia intended to rely on any additional conduct on his part on 12 April 2024 as constituting a valid reason for dismissal, it may have made different submissions or sought to lead other evidence in relation to the events of that day.

1. Second, Veolia conducted the proceedings before the Commissioner on the same basis. Counsel for Veolia did not make opening oral submissions or otherwise suggest that it intended to run a case which departed from the written submissions filed in advance of the hearing. Although Mr Barber denied the substance of the additional allegations in his witness statement in reply or at least their most serious aspects, Veolia did not squarely cross-examine him in relation to the additional allegations. At most one question was asked in relation to one aspect of the alleged threats and about the use of the photocopier.[40] It was not put to Mr Barber that his account should not be accepted. In our opinion, Mr Barber did not have a fair opportunity to deal with the additional allegations in his oral evidence.

1. Third, in final oral submissions on behalf of Mr Barber, his counsel limited his submissions to addressing the allegation that Mr Barber had breached confidentiality.[41] Having regard to the manner in which Veolia conducted its case, Mr Barber was entitled to structure his case and make his closing submissions on the basis that allegations in relation to 12 April 2024 that it was necessary to address were limited to the confidentiality issue. The oral submissions of counsel for Veolia similarly addressed the allegation that Mr Barber had failed to keep the matter confidential.[42] There was one reference in Veolia’s oral closing submissions to Mr Barber having threatened managers.[43] In submissions in reply, counsel for Mr Barber objected to the submission being made on grounds the matter had not been subject to cross-examination.[44]

1. On a fair reading of the decision, the Commissioner relies on matters, including allegedly threatening his managers, causing a commotion, trying to make 50 copies of his stand down letter and refusing multiple directions to leave the workplace, which Mr Barber did not have a fair opportunity to address in the proceedings. There was a denial of procedural fairness. We further accept that the denial of procedural fairness was material. The test of materiality does not present a high threshold. In Nathanson v Minister of Home Affairs [2022] HCA 26; (2022) 276 CLR 80, Kiefel CJ, Keane and Gleeson JJ said:[45] 

There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.

1. Further, in Stead v State Government Insurance Commission (1986) 161 CLR 141, the plurality of the High Court held:[46]

Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.

1. Although the conduct on 12 April 2024 formed only one part of the valid reason for dismissal, if Mr Barber had been on notice that the Commissioner was considering making findings against him for threatening his manager, causing a commotion, trying to make photocopies and refusing to leave, he may have led further evidence of what happened on that day, may have made additional submissions and may have conducted the cross-examination differently. This may have changed the outcome, particularly in light of the Commissioner’s comments that no one incident by itself formed a valid reason for dismissal. Accordingly, the denial of procedural fairness is material and appeal grounds 1(a) and 1(b) are upheld.

Ground 1(d) - Procedural Fairness

1. In ground 1(d), Mr Barber argues that the Commissioner relied on a finding that he engaged in a “degree of recklessness” in drinking the night before work. Mr Barber says that as this proposition was not specifically put to him and that, in this regard as well, he was denied procedural fairness and was not able to respond to it. The exact words which the Commissioner uses are as follows:[47]

…On the other hand, Mr Barber knew at the time of his drinking the night before that he was rostered to commence driving a heavy vehicle at 4.15am the next morning. He knew when he went to bed how little sleep this meant he was likely to get. In the circumstances, there was a degree of recklessness about the decision to attend work the next morning and not at least disclose his circumstances to Veolia in case his own personal capacity assessment was incorrect

1. On a fair reading of the decision, the Commissioner’s comments are not concerned with whether Mr Barber knew or should have known that he might have alcohol in his system the next day. That would represent an unfair reading of the decision which ignores the context in which the comment about recklessness was made. The comments were about the decision to drink the night before in the context of the amount of sleep he was going to get. The issue of lack of sleep and its potential consequences were put to Mr Barber’s representative in the proceedings:[48]

THE COMMISSIONER:  All right.  It didn’t come up in the hearing, as far as I can see, but what I can see from your client's statement is that he had four and a half hours sleep max.
MR BONCARDO:  Yes.
THE COMMISSIONER:  That's not a lot.
MR BONCARDO:  No.
THE COMMISSIONER:  So presumably there's some fatigue management rules for drivers.  I don't know, I'm just throwing it out there in case you have a comment.
MR BONCARDO:  Not an issue in the case that's been raised and nothing that, in our respectful submission, the Commission should speculate upon or look into.  It's not a matter in issue in the proceedings.  If the Commission pleases.

1. The above passage of the transcript should have been enough to alert Mr Barber to the possibility that the Commissioner was considering the issue of the lack of sleep and potential consequences for Mr Barber’s capacity. Mr Barber had an opportunity to make oral submissions on this point. In our view, the passage above sufficiently conveys the Commissioner’s concerns about Mr Barber’s “degree of recklessness” in drinking before work, knowing how little sleep he may get, so as to put him on notice that the Commissioner was considering making a finding on that point. It is self-evident on the material that when Mr Barber drank the night before work, he did so of his own volition, and he knew at that time, the commencement time of his shift the next day.

1. The Commissioner’s decision should be read fairly. It is, in our view, a strained and unfair interpretation of the decision to suggest that the Commissioner was referring to recklessness in the legal sense of the word. She was not required to establish Mr Barber’s state of mind when he decided to drink before work. Accordingly, we reject appeal Ground 1(d).

Ground 2 – alleged failure to consider relevant arguments

1. Ground 2 relates to an alleged failure by the Commissioner to consider relevant arguments of harshness made by Mr Barber which were said to support a finding that the dismissal was unfair. These arguments are:

(a)that Mr Barber's breach of Veolia's drug and alcohol policy was isolated and there was no suggestion Mr Barber had ever breached such a policy during his lengthy career;

(b)the severity of the breach was at the lowest end of the scale of seriousness in light of the reading of 0.007 and the absence of evidence of impairment;

(c)Veolia had not asserted that any breach of policy would result in dismissal and that under the applicable policy, dismissal was not an inevitable consequence and that a raft of lesser sanctions were available; and

(d)Mr Barber was committed to compliance with the policy, understood its importance and seriousness, and had given unchallenged evidence that he would not drink alcohol the day before work again.

1. Mr Barber initially argued that these arguments were “entirely ignored” by the Commissioner.[49] In oral submissions on the appeal, Mr Barber instead contended that though the Commissioner may have considered some of the arguments in the body of the decision, she did not specifically consider them under the heading of harshness which therefore gives rise to an inference those grounds were not properly taken into account. This is a pedantic interpretation of the decision. In Shop, Distributive and Allied Employees’ Association v Lokrum Pty Ltd trading as Grill’d Norwood [2025] FWCFB 125, the Full Bench explained some relevant principles:

It is appropriate to make some general observations about the obligation of the Commission to address submissions advanced to it in any reasons it provides. Some relevant principles are as follows:

(a) A failure on the part of a decision-maker to take into account a “submission centrally relevant to the decision being made” can give rise to appealable error and, indeed, jurisdictional error. Though the level of engagement and the degree of effort required by a decision-maker to consider a submission adequately will necessarily depend upon the length, clarity and degree of that submission, the standard expected is that a decision-maker will read, identify, understand and evaluate the submission, by bringing their mind to bear upon the argument that has been put forward.

(b) A failure to deal in published reasons with an issue raised by the evidence or the contentions advanced by a party, might give rise to an inference that it has been overlooked. However, it should not be lightly concluded that a decision-maker failed to take into account a matter raised before them. It “is a mistake to conclude simply from the fact that a Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped [the Tribunal’s] attention”. An inference that a matter has been overlooked should not too readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.

(c) Although the reasons of a decision-maker must articulate the essential grounds for reaching the decision and address material questions of fact and law in a manner which discloses the steps which lead to a particular result, “the reasons need not be lengthy or elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings.” A decision-maker is not expected to set out every consideration which passes through the decision-maker’s mind or to refer to “every piece of evidence and every contention” made by a party.

(d) The reasons of a decision-maker are to be read fairly and as a whole and not with an eye attuned to the detection of error. However, although the reasons of a decision-maker are to be read fairly, eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case.

(e) It is relevant when considering the reasons of a member of the Commission that the Commission is under an obligation, imposed by s 577 of the Act, to deal with the application in a manner that was “fair and just” and “quick, informal and avoid unnecessary technicality”. The Commission has a statutory mandate to get to the heart of matters as directly and effectively as possible, particularly in the context of dealing with a matter concerning bargaining which is intended to be dealt with expeditiously.

1. These observations apply equally to decisions made under Part 3-2 of the Act. We note in that regard the object of the Part in s 381(1)(b)(i) includes to establish procedures for dealing with unfair dismissal which are “quick, flexible and informal”.

(a) that Mr Barber's breach of Veolia's drug and alcohol policy was isolated and there was no suggestion Mr Barber had ever breached such a policy during his lengthy career

1. At paragraph [95] of the decision, the Commissioner notes Mr Barber’s long service with Veolia and its predecessors. Although the Commissioner does not explicitly reference that the breach of the drug and alcohol policy was Mr Barber’s first breach of a policy of that kind, she gives comprehensive reasons regarding safety breaches. The Commissioner does not distinguish between drug and alcohol policy breaches and other policy breaches. Instead, the Commissioner notes that all the policy breaches were safety-related and hence previous non-alcohol related breaches still weigh against Mr Barber. We do not discern any error in the Commissioner declining to separate drug and alcohol related policy breaches from other safety-related policy breaches.

(b) the severity of the breach was at the lowest end of the scale of seriousness in light of the reading of 0.007 and the absence of evidence of impairment;

1. At paragraph [77] of the decision, the Commissioner notes:

The result was a low-level positive and it would not have been unlawful for Mr Barber to drive a side loader under the Road Transport Act 2013 (NSW) at the time, because the result was below the applicable road user limit of 0.02%. But that was not the relevant benchmark. Veolia’s policies on drugs and alcohol at work set the tolerance level at zero and it was against this standard that Mr Barber’s result was measured

1. The Commissioner clearly considered that the result was a low-level result and considered Mr Barber’s level of impairment, noting he would be legally able to drive as a normal road user. The fact that the reading is a low-level result is self-evident. At paragraph [83], the Commissioner further rejects Mr Barber’s subjective belief that he did not feel affected by alcohol when he arrived at work.

(c) Veolia had not asserted that any breach of policy would result in dismissal and that, under the applicable policy, dismissal was not an inevitable consequence and that a raft of lesser sanctions were available;

1. At paragraph [98] of the decision, the Commissioner considered the sanctions imposed on two other employees who breached the drug and alcohol policy. Neither of those employees were terminated. Mr C was issued a written warning and was required to self-test and Ms D was issued a final written warning and would be subject to random breath testing in the future. Evidently, the Commissioner knew and considered that lesser sanctions were available under Veolia’s policy. The Commissioner distinguished the disciplinary outcomes for the other two employees on the basis that neither of those employees had a history of other safety related breaches.

(d) Mr Barber was committed to compliance with the policy, understood of its importance and seriousness, and had given unchallenged evidence that he would not drink alcohol the day before work again

1. At paragraph [110] of the Decision, the Commissioner notes:

Mr Barber expressed remorse in these proceedings for attending work with a BAC above zero and said that he will never drink again in the evenings before work. … Mr Barber’s long history of employment, training and responsibility for others as union delegate and health and safety representative all indicate that he either knew, or should have known, about the risk of drinking on the night before an early morning shift long before the events of June 2024.

1. The Commissioner considered Mr Barber’s evidence that he was committed to never drinking in the evenings before work again. The Commissioner chose to put little weight on that commitment, and we do not accept that it was not open to the Commissioner to adopt that view. The Commissioner also considered Mr Barber’s evidence that he understood the policy, given he was health and safety representative, but found that was all the more reason to show he should have known better. There is no discernible error in that conclusion.

1. Ground 2 is rejected.

Ground 3 and 6(b) – alleged misapplication of s 387(b) and (c)

1. Grounds 3 and 6(b) relate to the Commissioner’s application of ss 387(b) and (c) of the Act. Mr Barber contends that the Commissioner relied on misconduct about which he was not notified in finding that there was a valid reason for dismissal. As we have discussed, the Commissioner found that Mr Barber’s conduct on 12 April 2024 in threatening his manager, causing a commotion and refusing to leave site formed part of the valid reason for dismissal.[50] Additionally, the Commissioner found that speeding on a public road on 28 February 2024 formed part of the valid reason. Neither of these matters were put to Mr Barber in either the show cause letter or the termination letter. Those letters specifically confirm the conduct matters which Veolia relies upon as those for which he has received a written warning previously.

1. Where an applicant is not informed of the reason for dismissal, this should weigh in favour of a finding that the dismissal was unfair. In Newton, the Full Bench confirmed that the reason referred to in s 387(b) is the valid reason as found by the Commission and the Commission should consider whether the applicant was provided an opportunity to respond to that reason prior to being dismissed for the purposes of s 387(c). The Full Bench said:[51]

It is plain that Mr Newton was not notified of the reason – that is, the ‘valid reason’ as found by the Deputy President – for his dismissal. It was not reasonably open for the Deputy President to conclude that this was a neutral consideration. Plainly it was a matter which sounded in favour of a finding that the dismissal was harsh, unjust or unreasonable

…

Section 387(c) focuses on provision of an opportunity to respond to a reason for dismissal prior to the dismissal. The valid reason for dismissal upheld by the Deputy President was not notified to Mr Newton before dismissal and he was not afforded an opportunity to respond to the assertion that he had been dishonest, misleading and had engaged in sinister conduct.

1. Grounds 3 and 6(b) are made out. Where a member finds that there is a valid reason for dismissal related to conduct or capacity, other than the reason put forward by the employer, the member must consider how that finding affects the nexus of s 387(b) and (c) being whether the applicant was notified of “that reason” and whether the applicant was given an opportunity to respond to a reason for dismissal related to conduct. In this matter, the Commissioner erred in finding that Mr Barber had been notified of and had an opportunity to respond to the reasons for dismissal in circumstances in which she found that there was a valid reason on a basis which differed from the reasons relied upon by Veolia at the time of dismissal.

Ground 4(a), 4(b) and Ground 5 – alleged significant errors of fact and alleged failure to take into account a relevant consideration

1. Grounds 4(a) and 4(b) and ground 5 relate to the findings of the Commissioner that Mr Barber had contravened Veolia’s policies by driving the vehicles on the operator/pickup side on 14 February and 15 February 2024. Grounds 4(a) and 4(b) allege that the Commissioner erred in finding there was a safe place for Mr Barber to stop and change to driving on the other side of the vehicle on those occasions. Ground 5 alleges that the Commissioner failed to take into account the testimony of Mr Beasley under cross-examination in which he said that it would have been fine to drive from the yard to the Chinese Market Garden without stopping to change sides on 15 February 2024.

1. Mr Barber gave evidence that he left the yard driving on the left side, on the basis that it was common practice and further that, for the first pick up on both 14 February and 15 February 2025, there was no place where he could safely pull over and exit the cabin and then walk around the vehicle to change sides. In relation to 14 February 2024, which is dealt with in ground 4(a), the Commissioner stated that she was “reasonably satisfied” that there was a safe place for Mr Barber to stop and change sides between leaving the yard and commencing collections on the morning of 14 February 2024. The Commissioner noted:[52]

On 14 February 2024 at approximately 2.50am, Mr Barber left the Arncliffe yard and drove toward West Botany Road and the Princess Highway while seated on the operator/pickup side of his truck and not yet in his run. Mr Barber says that he drove in this position because otherwise he would have had to get out of the vehicle into live traffic, which would have been very dangerous. I reject this and prefer the evidence of Mr Beasley. Given the distance to be travelled, I am reasonably satisfied that there would have been somewhere for Mr Barber to stop and change sides. Between the yard and commencing collections, there are many offstreets (off the main roads), garages or similar where a driver can pull over safely and change sides. Even on Mr Barber’s evidence, there were at least a few places to stop on his route.

1. Mr Barber contends that Mr Beasley was never asked about the route between the yard and West Botany Street in particular and was instead asked if there was a safe place to stop between “the market garden area and Chullora [Turrella]”. By conflating the route between the Chinese Market Garden and Turrella with the area between the yard and West Botany Street, Mr Barber says the Commissioner fell into error.

1. In Mr Barber’s first statement, he states:

40. On Wednesday 14 February 2024, I attended a missed service in Turrella on the top of West Botany Steet and collected some bins. The safest way for me to perform this job was to operate the vehicle on the pick upside as otherwise I could have to get out of the vehicle into live traffic which would have been very dangerous.

1. In Mr Barber’s statement in reply, he says:

If I need to pick up a bin I need to be driving on the left hand side of the truck. Changing over from the left hand side of the cab to the right hand side and vice versa is not a short process. If I have to change sides, I first need to find a safe place where I can legally park a truck for a few minutes. On my route between Turrella and West Botany Street there are very few places I can stop a truck to change from the left side to the right side of the vehicle legally. I then need to exit the truck and walk to the other side of the vehicle. After I have re-entered the truck I then need to get onto the seat which is a suspended air cushion, adjust the seat, lean over and adjust the 4 mirrors in the cab. Adjusting all 4 mirrors usually takes between 30 seconds and a minute. After this is all complete, I then turn on the system that lets you pick up the bins.

1. Under re-examination, Mr Beasley gave the following evidence:[53]

And you gave evidence that if there was absolutely nowhere to pull over safely then perhaps there might be a justification for a driver staying in the left-hand side.  Can I just ask you, do you know whether there is a safe location between the market garden area and Chullora [Turrella] at which a driver could pull over to change sides of his vehicle?---There are many off streets off the main roads that - or, you know, garages or places like that to pull over safely and change sides.

1. In relation to Mr Barber’s evidence that there were “very few” places to stop on the route between Turrella and West Botany Street, Mr Barber submits that he was referring to places to stop legally rather than whether there were safe places to stop on the morning of 14 February 2024 in particular.

1. It appears that the Commissioner made the conclusion that there must have been at least one safe place to stop on 14 February 2024 based on Mr Barber’s comments that there were “very few” places to stop legally. We accept that the general statement about legal places to stop does not determine whether there was a safe place to stop on the day in question. None of the evidence before the Commissioner appears to deal precisely with that point. It was not open for the Commissioner to draw the conclusion on the evidence before her that there was a safe place for Mr Barber to stop and change sides in the morning of 14 February 2024, on route between the yard and the top of West Botany Street.

1. In relation to 15 February 2024, which is dealt with in ground 4(b), the Commissioner found:[54]

On 15 February 2024 at approximately 3.30am, Mr Barber was again seen leaving the yard driving toward West Botany Road and the Princess Highway on the operator/pickup side of his truck while not in his run. There is a dispute about the direction he was driving, and whether it was on this day, or at this time. The dispute is not necessary to resolve because Mr Barber admits driving on the operator/pickup side at or around this time and says it would have been unsafe for him to change sides due to the traffic flow. For the same reasons as above, I am not satisfied that there was no safe place for Mr Barber to stop and change sides before commencing his run. 

1. Mr Barber contends that the error in this paragraph arises because the Commissioner refers to “the same reasons as above” in finding that there was no safe place to stop (that is, the reasons expressed in relation to whether there was a safe place to stop on 14 February 2024). Mr Barber’s evidence is that on 15 February 2024, the first pickup was in a different location than the day before. It was on West Botany Street outside the Chinese Market Garden, 100 metres from the yard.

1. In relation to 15 February 2024, Mr Barber said in his reply statement:

On Thursday 15 February 2024, my first bin was on West Botany Street, around 100 metres from the yard’s front gate. As this is a route designed for petrol tankers and dangerous vehicles, our trucks do not fit beside each other at some places on West Botany Street, including where I picked up my first bin on Thursday 15 February 2024. As such, it was unsafe for me to get out and walk around the cab due to the traffic flow. 

1. Mr Beasley gave the following evidence under cross-examination:[55]

I see.  So if, hypothetically, your first collection was somewhere close to the yard but in a location where it was neither safe nor appropriate for you to stop your vehicle and move from the right side to the left side, there'd be no issues, so far as Veolia was concerned, with you driving from the yard, sitting on the left-hand side, directly to your pickup?---Depending how far it is, I guess.

So do I understand that answer to be, there wouldn't be an issue but it would depend on the distance?---Depend on the distance and – yes, correct.

So if, hypothetically, someone was collecting their first bin outside the Chinese market garden I just asked you some questions about, there's be no expectation for them to, for example, drive to the end of the road on the right-hand side?---No.

They'd be perfectly fine driving on the left-hand side all the way?---Yes.

1. Mr Beasley accepted the proposition that if it was neither safe nor appropriate to stop between leaving the yard and the first pickup location, the employee may keep driving on the left hand side, depending on the distance. Mr Beasley then accepted that it would be fine for someone to drive all the way to the Chinese Market Garden on the left-hand side. In view of Mr Barber and Mr Beasley’s evidence about the pickup location on 15 February 2024, it was not open to the Commissioner to reject that there was no safe place for Mr Barber to stop and change sides prior to commencing his run.

1. Grounds 4(a) and 4(b) are upheld. The errors of fact in those grounds were significant given that the conduct found to have occurred constituted part of the reason given by the Commissioner for finding that there was a valid reason for dismissal. It is unnecessary to address ground 5 in those circumstances.

Ground 4(c) – Remorse – alleged significant error of fact

1. In ground 4(c), Mr Barber alleges that the Commissioner made a significant error of fact in finding that he was not genuinely remorseful. At first instance, Mr Barber argued that his response to the show cause letter demonstrates his remorse.[56] That response was in an email of 2 July 2024 which states:

I appreciate the opportunity to address these issues and provide my perspective.

First and foremost, I want to emphasize that safety is my utmost priority. Operating a heavy vehicle with a blood alcohol over 0.00  was never my intention, and I understand the serious implications it can have on both safety and performance on workers.

I don’t dispute that my blood alcohol was 0.013 @ 3.58 am which was above the 0.00 as per the Suez policy (POL009) another test was conducted at 4.22 am in which I
returned a final reading of 0.007, below the company policy of 0.00.

It was decided following the last results, Mark Beasley advised me just to clean the yard at around 4.30 am. In no time did Mark or myself  believe we breached the company policy if that was the case Mark would have followed the policy “Where a worker is retested and does not pass the alcohol test, they are not permitted to return to work and must leave the workplace when practicable in a safe and lawful manner”.

I would be lying if this hasn’t taken its toll on my myself and my family, as a HSR and a delegate in the yard. I feel like that I have been targeted on minor issue lately. If the shoe was on the other foot I’m sure you wouldn’t appreciate it or your family.

I suggest we work together to provide the necessary training and support to all team members and work together. This proactive approach will not only enhance our performance but also foster a more collaborative and supportive work environment as standing me down or any future employee for a 0.007 results is extreme in which we are below the 0.00.

I just wouldn’t want someone within the business have a blood alcohol reading of 0.001 be disciplined the same way I have or been treated.

We are all part of the same team with a common goal of running the business smoothly and creating a safe workplace for everyone.

I am committed to improving my performance and contributing positively to our team.[57]

1. We accept the proposition that remorse is an expression of regret for past wrongdoing. Remorse, if expressed at any time prior to or during the hearing, does not necessarily weigh in favour of a finding of harshness. Remorse which is expressed at the time of or prior to the dismissal will often be given greater weight. Further, not all expressions of remorse will be relevant or valuable in providing comfort to the parties that the offending behaviour will not occur again. It is a matter for the member to decide what weight should be placed on an expression of remorse in evaluating harshness. 

1. The substance of the submission advanced by Mr Barber is that he gave uncontested evidence that he was remorseful and the Commissioner erred in not accepting the evidence. We do not accept the submission. An applicant in unfair dismissal proceedings giving evidence that they are remorseful with respect to past misconduct is implicitly asking the Commission to accept the genuineness of the evidence. It is a matter for the Commission as to whether it does. Furthermore, in this matter the email of 2 July 2024 shows limited regret for past actions. The furthest the email goes is to express that there is a policy, which is important for the safety of workers at the site. Mr Barber immediately qualifies that statement by saying that his final reading of 0.007 was below the policy of 0.00 and then proceeds to suggest Veolia should provide more training. It was open to the Commissioner to come to the view that she had difficulty in accepting the genuineness of Mr Barber’s remorse.

1. Ground 4(c) is rejected.

Appeal grounds 4(e) and 4(f) – speeding – alleged significant error of fact

1. Grounds 4(e) and 4(f) relate to the Commissioner’s findings that Mr Barber was aware of the 10km/h speed limit imposed by Veolia on the public road adjacent to the site, and that the speed limit was regularly communicated to drivers at toolbox meetings.

1. In the decision, the Commissioner discusses competing evidence about whether a speed limit sign of 10 kilometres per hour on the council gate was put up in January 2024 or February 2024. The Commissioner preferred the evidence of Mr Beasley and found that “the sign had been on display for some weeks before Mr Barber was taken to task for speeding in February 2024”.[58] The Commissioner found that she was satisfied that Mr Barber was aware of the speed limit and that the speed limit signs are physical manifestations of a reasonable and lawful direction given by Veolia to its drivers to limit their speed in and around the entrance to the yard in connection with ensuring the safety of both employees and members of the public.[59]

1. Mr Barber suggested that the Commissioner made an error in concluding that Mr Barber was aware of the speed limit in circumstances where that was not put to him in cross-examination. We reject this submission. Mr Barber was questioned about the speed limit sign by both counsel for Veolia and the Commissioner.[60] It was open to the Commissioner to find that the sign was put up in January 2024. It follows from finding that the sign was put up in January 2024 to infer that Mr Barber, an experienced driver, was aware or should have been aware that a speed limit sign corresponded to the speed limit on the road.

1. Ground 4(e) is rejected.

1. The Commissioner’s reference to the speed limit being regularly discussed at toolbox meetings appears to be derived from paragraph [23] of Mr Beasley’s witness statement which stated:

On or around 28 February 2024, I witnessed Roland driving back into the yard through the gate at the Arncliffe Depot, driving at well in excess of 10 km/hr. When driving into the yard, drivers can only drive up to 10 km/hr. We have signs around the yard that specify the speed limit is only 10km. It is also something that we regularly discuss in toolbox meetings about reminding the drivers to stick to the speed limit.

1. Mr Barber was not cross-examined on whether the speed limit was regularly discussed in meetings but neither was Mr Beasley challenged on the evidence he gave in his statement that the speed limit was regularly discussed in meetings. Other evidence indicates that toolbox meetings were used to discuss safety policies. Although the state of the evidence was not entirely satisfactory, it was open to the Commissioner to find that the speed limit was regularly discussed in toolbox meetings.

1. Appeal ground 4(f) is rejected.

Conclusion and Order

1. For the reasons we have indicated above, permission to appeal is granted. We uphold grounds 1(a), 1(b), 3, 4(a), 4(b), 5 and 6(b) of the appeal. Grounds 1(d), 2, 4(c), 4(e) and 4(f) are not made out.

1. At the hearing of the appeal, both parties agreed that, if the Full Bench grants permission to appeal and quashes the decision of the Commissioner, that the Full Bench then should redetermine the matter at least if Veolia does not seek to rely on any conduct of Mr Barber in relation to the 12 April 2024 incident other than the alleged breach of confidentiality. Counsel for Veolia confirmed that it does not press any allegation with respect to the 12 April 2024 incident other than specified in the allegations letter and warning letter or ask the Full Bench to make any other findings in relation to Mr Barber’s conduct on that day.

1. It is appropriate that we redetermine the matter, given the parties’ agreement and to save further costs and inconvenience. Mr Barber seeks reinstatement and that the Commission make orders for continuity of employment and service and with respect to remuneration lost. Veolia contends that, even if there was error in the decision of the Commissioner, there was plainly a valid reason for dismissal and Mr Barber’s dismissal was not otherwise harsh, unjust or unreasonable. It says the application should be dismissed.

Redetermination

1. In redetermining the matter, we have had regard to the Commissioner’s factual findings, except for those found to be in error in this decision. We have had regard to the materials which were before the Commissioner. We do not, of course, have the benefit of rehearing evidence and, therefore, adopt the Commissioner’s findings as to credibility. It is not contested that the application was made within the 21-day period under s 394(2) of the Act, Mr Barber is a person protected from unfair dismissal, Veolia is not a small business and the dismissal was not a case of genuine redundancy.

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

1. In assessing whether there was a valid reason for the dismissal, it is necessary to consider the five matters raised at first instance.

Crashes in October 2023

1. Two traffic incidents involving Mr Barber were relied upon. The incident on 9 October 2023 in which Mr Barber hit the plastic bumper on a car was an error for which Mr Barber took responsibility. It was caused by a lack of attention rather than deliberate misconduct. The second incident on the 11 October 2023 was the result of a malfunctioning sensor on the retracting arm. This caused damage to a third-party vehicle.

1. Following these two incidents, Mr Barber was issued with a written warning, lost an entitlement to a performance bonus for a period of 24 weeks under the enterprise agreement and was required to undergo a driver assessment.[61] There is no evidence of further crashes or driving incidents involving Mr Barber after October 2023.

1. The two crashes in October 2023 have little weight in the final assessment for valid reason for termination in June 2024. Mr Barber was appropriately disciplined for the incidents, and it appears there were no further incidents of the same kind. In our view, the crashes in 2023 do not provide a valid reason for dismissal, either on their own or taken together with other matters.

Speeding

1. We adopt the Commissioner’s findings that the 10 km/h speed limit on the public road adjacent to the yard was a limit imposed by Veolia, rather than a legal speed limit. There was effectively a lawful and reasonable directive in place for Veolia drivers to drive at 10km/h on this road. Mr Barber admitted to driving at 20 km/h on the road, which is in breach of the direction but is not unlawful. Veolia identifies one date on which Mr Barber was observed speeding, namely, 28 February 2024. The warning letter issued on 19 March 2024 notes Mr Barber agreed to slow down and observe the speed limit following a disciplinary meeting.

1. Mr Barber appeared to challenge the reasonableness of Veolia imposing a speed limit on a public road. Given this road is the entry point to the yard, it is in our view lawful and reasonable for Veolia to impose a speed limit for the safety of its workers and pedestrians. However, we do not regard Mr Barber’s admission to driving at 20km/h on the public road adjacent to the yard on one occasion to amount to a valid reason for dismissal, particularly in light of the fact that he had agreed to slow down and observe the speed limit in the future.

Conduct in relation to stand down

1. The disciplinary letter sent to Mr Barber on 9 May 2024 alleges the following conduct on 12 April 2024:

1.   During a meeting on 12 April 2024 at approximately 0345hrs with Shane O'Connor (also attended by Chad Butterworth and Kevin Thomson), you were advised by Mr O'Connor that you were being stood down.

It is alleged that, as Mr O'Connor read from the letter dated 12 April 2024 advising you of your stand down and of the requirement for you to maintain confidentiality, you said words to the effect of: "I will not be keeping this confidential and I will be letting everyone know."

2.   During this meeting (as noted in Allegation 1), you were handed the letter dated 12 April 2024 which informed you, “To ensure confidentiality, you are directed not to discuss the details of this matter [being your stand down] and/or engage with any other person in the workplace."

It is alleged that you failed to follow this lawful and reasonable direction, in that, on Friday 12 April 2024 at approximately 0352hrs, you left the meeting and, at the door leading into the office, announced (words to the effect of) "I have just been stood down".[62]

1. The Commissioner found that Mr Barber agreed that he told other drivers he had been stood down following the meeting. The Commissioner said, “[i]f that were all there were to the events of 12 April 2024, disciplinary action would likely have been an overreaction in the circumstance.” We tend to agree.

1. The Commissioner considered whether there was an agreement between Mr Barber and Mr O’Connor whereby Mr Barber could tell others he had been stood down. The Commissioner found that there was not. However, in reaching that conclusion, the Commissioner referred to her reasons above, which include matters successfully challenged under appeal ground 1(a). There is evidence that Mr Barber told others that he was stood down but no clear evidence that he told others of the reasons for the stand down. The balance of the alleged conduct on 12 April 2024 cannot be considered in our redetermination.

1. In our view, the direction “not to discuss the details of this matter [being your stand down] and/or engage with any other person in the workplace”, could not reasonably prevent Mr Barber from merely saying that he had been stood down, without going into the reasons for why that is nor could it prevent Mr Barber from interacting with other employees, without discussing the reasons for the stand down. Mr Barber was a union delegate at the workplace and, since part of that role involves speaking to other members and employees, we regard it as unrealistic to expect that Mr Barber not inform his fellow employees that he had been stood down.

1. The allegation that Mr Barber told others he had been stood down does not constitute a valid reason for dismissal.

Drug and alcohol policy breach

1. We adopt the Commissioner’s findings that the testing protocol was reliable and accurate. There is no dispute that Mr Barber returned a low-level positive BAC result of 0.007 on the test. This result was in breach of the drug and alcohol policy which sets a standard of 0.00. Mr Barber initially denied that the result was a breach and suggested it was his cologne and an alcohol-based hand sanitiser which triggered the positive result. That hypothesis is not supported by the expert evidence.

1. Veolia operates a safety critical environment. Although the positive test result recorded by Mr Barber was at a low level, we are satisfied that a breach of the drug and alcohol policy, in this environment, provides a valid reason for dismissal. As Veolia had a valid reason for dismissal related to Mr Barber’s conduct, this weighs in favour of finding that the dismissal was not unfair.

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

1. Mr Barber was subject to random drug and alcohol testing on the morning of 21 June 2024 before his shift. He was told to return home approximately 2 hours after returning a positive result on the second breathalyser test. On 23 June 2024, Mr Barber was provided with a letter confirming that he would be stood down. On 27 June 2024, Mr Barber was provided with a show cause letter which noted the drug and alcohol result as well as other matters. On 2 July 2024, Mr Barber responded in writing to the show cause letter. On 16 July 2024, Mr Barber attended a meeting onsite, and his employment was terminated. Mr Barber was provided with a termination letter the same day. The reasons for termination include the positive alcohol result on 21 June 2024. Mr Barber was notified of the valid reason for dismissal prior to being terminated. This weighs against a finding that the dismissal was unfair. 

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person – s 387(b)

1. Mr Barber was provided an opportunity to respond to matters raised in the show cause letter, including the breach of the drug and alcohol policy, in writing, and was provided almost a week to respond. This weighs against a finding that the dismissal was unfair. 

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal – s 387(d)

1. There was no unreasonable refusal for Mr Barber to have a support person with him. This factor is neutral.

If the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal– s 387(e)

1. Properly construed, the dismissal does not relate to unsatisfactory performance, but instead a breach of the drug and alcohol policy. With respect to the crashes in 2023, which may be viewed as unsatisfactory performance, Mr Barber was provided with a warning letter and was required to undergo a driver assessment. There is no evidence of further incidents of that kind since. This factor is neutral.

The degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal – s 387(f)

1. Veolia is a large company. There is no evidence that the size of Veolia’s enterprise had any impact on the procedures followed. This factor is neutral.

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 – s 387(g)

1. Veolia has dedicated human resources staff. This factor is neutral.

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

Drug and alcohol policy

1. Mr Barber suggests that there was an absence of impairment. We accept the Commissioner’s findings, formed after hearing expert evidence, that the possibility of impairment cannot be excluded.[63] Mr Barber’s position as a health and safety representative and as a longstanding employee means a higher level of compliance can be expected of him. However, Mr Barber returned a low-level positive result on the BAC test of 0.007 and it was his first breach of the drug and alcohol policy. He had been drinking in a social setting outside of work approximately 8 hours before he was tested. Mr Barber would have been legally able to drive in a personal capacity with a BAC result of 0.007. He gave evidence that he was committed to compliance with the policy in the future.

1. These factors weigh in favour of finding that the dismissal was harsh, particularly in light of the lesser sanctions for employees Mr C and Ms D under the same policy. The appropriate disciplinary outcome would have been for Mr Barber to receive a written warning and be subject to self-testing or random testing in the future.

Personal circumstances

1. Mr Barber submitted that the dismissal was harsh in view of his personal circumstances. Mr Barber is in his mid-fifties and had worked for Veolia and its predecessors for 16 years. Mr Barber submitted he would face financial difficulties as a result of the dismissal, given he has a mortgage and responsibilities for his children.

1. The personal circumstances put forward by Mr Barber weigh in favour of a finding of harshness. Whilst it is not uncommon for an employee to have a mortgage or children, the impact of dismissal on a dismissed employee is plainly relevant to an assessment of harshness. Mr Barber has a long period of employment, and the employment is plainly important to him, including because of his long-standing role as a union delegate and health and safety representative. Even if the Commissioner was correct to find that Mr Barber has prospects of finding alternative employment, these considerations favour a finding that the dismissal was harsh.

Remorse

1. Given that the Commissioner had the benefit of observing Mr Barber giving evidence in a hearing, we are not in a position to form a different view as to whether Mr Barber demonstrated remorse. To the extent the email of 2 July 2024 purports to be a written display of remorse about returning a positive alcohol test, this display of remorse is tepid at best.

Conclusion on unfairness

1. In our view, Mr Barber’s breach of the drug and alcohol policy provides a valid reason for dismissal. However, having considered each of the considerations in s 387 and all of the circumstances, including the other conduct relied upon by Veolia, we are satisfied that the dismissal was harsh. The positive test result was a relatively low-level positive result, Mr Barber has expressed that he is committed to complying with the policy in the future and dismissal was harsh and disproportionate in light of Mr Barber’s length of service and the impact of dismissal upon him in light of his personal circumstances.

Remedy

1. The primary remedy for unfair dismissal is reinstatement under s 390 of the Act. This is the remedy which Mr Barber seeks. The Commission must only order compensation if satisfied that reinstatement is inappropriate for the purposes of s 390(3)(a).

1. In its submissions before the Commissioner, Veolia argued:

34. If, notwithstanding the above, the Commission finds that the Applicant’s dismissal was "harsh, unjust or unreasonable", an order for reinstatement would not be appropriate, as the Respondent has, justifiably, lost trust and confidence in the Applicant’s ability to conduct himself in accordance with the Respondent’s policies and expectations. 

35. If the Commission were to find against the Respondent in this regard and instead determined to order reinstatement, the Commission should not make the requested orders for back pay and continuity of service as to do so would be plainly inappropriate and have the effect of depriving the Applicant’s misconduct of any meaningful consequence.

1. Mr Barber submitted:

57. Reinstatement is manifestly appropriate in the current case. There are no compelling factors that would make reinstatement impracticable. The following factors weigh in favour of this conclusion:

(a) Mr Barber was a loyal and diligent employee;
(b) Veolia is a substantial employer, well able to accommodate reinstatement of Mr Barber; and
(c) there is, and can be, no sensible suggestion that the relationship of trust and confidence between Mr Barber and Cleanaway has broken down such that the employment relationship cannot be re-established. 

58. The Commission should reinstate Mr Barber, with orders for continuity of employment and restoration of lost pay.

59. If the Commission determines that reinstatement is not an appropriate remedy, Mr Barber seeks compensation up to the statutory maximum.

1. Veolia argues that they have lost trust and confidence in Mr Barber due to his breaches of their policies, compounded by the fact that he is a health and safety representative. The onus for establishing lost trust and confidence lies with Veolia. We are not convinced that Mr Barber has displayed a pattern of behaviour which demonstrates that he is unable to conduct himself in accordance with his employers’ policies. Certainly, Mr Barber has breached Veolia’s policies in the past, but it does not rise to the standard where he has shown an unwillingness to comply with company policy at all.

1. We are satisfied that it is appropriate to make an order for reinstatement under s 391(1) by reappointing Mr Barber to the position in which he was employed immediately before the dismissal. In addition to orders for reinstatement, we are satisfied it is appropriate to make an order that continuity of Mr Barber’s employment be maintained. We are also satisfied that it is appropriate to make an order under s 391(3) with respect to remuneration lost. Mr Barber should be directed to provide further evidence to the presiding member of the Full Bench regarding the quantum of backpay so as to enable the Commission to consider the remuneration earned by Mr Barber from employment or other work during the period between the dismissal and the making of the order as required by s 391(4) of the Act.

Conclusion and disposition

1. For these reasons, the Full Bench makes the following orders:

(a)Permission to appeal is granted;

(b)The appeal is allowed;

(c)The decision of Commissioner McKinnon [2025] FWC 403 in matter number U2024/9197 is quashed;

(d)Pursuant to ss 390(1) and 391(1)(a) of the Act, Veolia is ordered to reinstate Roland Barber to the position he was employed in immediately before the dismissal within 21 days of the date of this order;

(e)Pursuant to s 391(2) of the Act, the continuity of Roland Barber’s employment and the period of his continuous service with Veolia is maintained from the date of termination of his employment to the date of reinstatement; and

(f)Mr Barber is directed to provide further evidence to the chambers of Vice President Gibian as to the quantum of backpay within 14 days.

VICE PRESIDENT

Appearances:

P Boncardo, of counsel, instructed by the Transport Workers’ Union for the appellant.
J McLean, of counsel, instructed by Mills Oakley for the respondent.

Hearing details:

10 April 2025.
Sydney (in-person).

[1] Barber v Veolia Recycling and Recovery Pty Ltd[2025] FWC 403.

[2] [2025] FWC 403 at [111]-[114].

[4] [2025] FWC 403 at [89].

[5] [2025] FWC 403at [73].

[6] [2025] FWC 403at [74].

[7] [2025] FWC 403at [75].

[8] [2025] FWC 403 at [23]-[33].

[9] [2005] FWC 403 at [76].

[10] [2025] FWC 40 3at [79].

[11] [2025] FWC 403 at [80].

[12] [2025] FWC 403 at [81].

[13] [2025] FWC 403 at [83].

[14] [2025] FWC 403 at [84].

[15] [2025] FWC 403 at [87]-[89].

[16] [2025] FWC 403 at [91].

[17] [2025] FWC 403 at [92].

[18] [2025] FWC 403 at [93].

[19] [2025] FWC 403 at [94].

[20] [2025] FWC 403 at [95].

[21] [2025] FWC 403 at [96].

[22] [2025] FWC 403 at [97].

[23] [2025] FWC 403 at [109].

[24] [2025] FWC 403 at [110].

[25] Fair Work Act 2009 (Cth), s 604(2).

[26] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30] (Spender, Kiefel, Dowsett JJ); Ferrymen Pty Ltd v Maritime Union of Australia[2013] FWCFB 8025; (2013) 238 IR 258 at [9]-[12].

[27] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [34] and [43] (Buchanan J); Workpac Pty Ltd v Bambach[2012] FWAFB 3206; (2012) 220 IR 313 at [14]; Barwon Health – Geelong Hospital v Colson[2013] FWCFB 4515; (2013) 233 IR 364 at [6].

[28] Virgin Australia Airlines Pty Ltd v Dylan Macnish [2025] FWCFB 6 at [22].

[29] O’Sullivan v Farrer (1989) 168 CLR 210 (Mason CJ, Brennan, Dawson and Gaudron JJ); applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44]-[46].

[30] [2010] FWAFB 5343; (2010) 197 IR 266 at [27].

[31] BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89; (2020) 276 FCR 9 at [22] (Besanko, Perram and Jagot JJ).

[32] Newton v Toll Transport Pty Ltd[2021] FWCFB 3457; (2021) 307 IR 140 at [65].

[33] Newton v Toll Transport Pty Ltd[2021] FWCFB 3457; (2021) 307 IR 140 at [66].

[34] Steed v Active Crane Hire Pty Ltd[2023] FWCFB 152 at [67]-[68].

[35] R v Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552; Enterprise Flexibility Agreements Test Case (1995) 59 IR 430 at 444; Viavattene v Health Care Australia[2013] FWCFB 2532 at [28].

[36] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 512 at [48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) referring to comments by Diplock LJ in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369.

[37] Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [9] (French CJ and Kiefel J).

[38] [2025] FWC 403 at [76].

[39] [2025] FWC 403 at [87].

[40] Transcript PN204.

[41] Transcript PN1366-1383.

[42] Transcript PN1539-1551.

[43] Transcript PN1597.

[44] Transcript PN1625.

[45] Nathanson v Minister of Home Affairs [2022] HCA 26; (2022) 276 CLR 80 at [33] (Kiefel CJ, Keane and Gleeson JJ).

[46] Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 (Mason, Wilson, Brennan, Deane and Dawson JJ).

[47] [2025] FWC 403 at [84].

[48] Transcript PN1482-1487.

[49] Appellant Outline of Submissions [34].

[50] [2025] FWC 403 at [76].

[51] Newton v Toll Transport Pty Ltd[2021] FWCFB 3457; (2021) 307 IR 140 at [185] and [188].

[52] [2025] FWC 403 at [11].

[53] Transcript PN1178.

[54] [2025] FWC 403 at [12].

[55] Transcript PN898-901.

[56] Applicant Reply Witness Statement [50].

[57] Annexure RB-12 to Applicant Witness Statement dated 18 October 2024.

[58] [2025] FWC 403 at [14].

[59] [2025] FWC 403 at [15].

[60] Transcript PN192-194 and PN223-225.

[61] Annexure RB-02 to Applicant Witness Statement dated 18 October 2024.

[62] Annexure RB-08 to Applicant Witness Statement dated 18 October 2024.

[63] [2025] FWC 403 at [83]

Printed by authority of the Commonwealth Government Printer

<PR789095>