Shane Clements v Downer EDI Works Pty Ltd

[2017] FWC 4661

[2017] FWC 4661

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Clements
v
Downer EDI Works Pty Ltd
(U2017/4064)

COMMISSIONER LEE MELBOURNE, 13 SEPTEMBER 2017

Application for relief from unfair dismissal - whether dismissal was harsh, unjust or unreasonable - whether summary dismissal was disproportionate response - whether dismissal was harsh in the circumstances.

Introduction

[1] This is an application for unfair dismissal remedy made under s.394 of the Fair Work Act2009 (the Act).

[2] Mr Shane Clements (the Applicant) was dismissed from his employment with Downer EDI Works Pty Ltd (the Respondent). He was dismissed for alleged serious misconduct. The Applicant was summarily dismissed on 10 April 2017. 1

[3] The matter was heard before me in Hobart on 1 August 2017. The Applicant represented himself and was supported by his wife during the proceedings. Ms Laura Gordon, Industrial Relations Manager represented the Respondent with Mr Damien North, General Manager Industrial Relations. The matter proceeded by way of determinative conference.

[4] The Applicant gave evidence on his own behalf. Evidence for the Respondent was provided by Mr Ken McGivern, Manager Tasmania, Mr Jon Foulston, Operations Manager and Mr David Hurd, Operations Manager from 14 June 2011 until 14 November 2014 for the Respondent.

Background

[5] The Applicant was employed by the Respondent as a Casual Bridge Operator. The Respondent claims that the Applicant’s hours were variable 08:00 – 17:00 Monday to Friday in line with the Denison Canal Swing Bridge Operations and the Five Key Bridges Contract. However, the Applicant gave evidence that he worked Monday to Friday but also worked every second weekend. 2 The Applicant commenced employment with the Respondent on 7 March 2012. The Applicants earnings over the last 6 months were $38,056.40 and over the last 12 months $61,106.40.3

[6] The Applicant was dismissed for alleged serious misconduct. The alleged misconduct involved the acceptance of gifts from boats passing the swing bridge operated by the Applicant. The gifts were obtained by the passing boats placing the gifts in a bucket extended on a pole. The Applicant admits that he engaged in this practice on one occasion in February of this year. The gift the Applicant received was two bottles of ginger beer. The Respondent asserts that the Applicant knowingly went against a lawful instruction which was contrary to the requirements of the client and resulted in the Respondent being in breach of its contract with the Department of State Growth. The Respondent submits that the employment relationship with the Applicant is untenable and therefore inconsistent with the contract of employment. The letter of termination dated 10 April 2017 states as follows, omitting formal parts:

“This letter is to acknowledge that your employment as Bridge Maintenance Operator with Downer Infrastructure is to be terminated effective immediately for the valid reason of serious misconduct. This advice was communicated to you on 10 April 2017 by Ken McGivern, Manager Tasmania and Jon Foulston, Operations Manager, TAS.

On 6 April 2017, a performance improvement meeting was held with you to discuss the allegations of serious misconduct relating to your involvement in accepting gifts from boat owners whilst operating the Denison Canal Swing Bridge. You were provided with an opportunity to respond to the allegations and provide any mitigating factors.

After consideration of your responses, Downer has determined that you knowingly went against a lawful instruction which was contrary to the requirements of the client and resulted in Downer being in breach of its contract with The Department of State Growth. The Company has formed the view that the relationship is untenable and therefore inconsistent with the continuation of your contract of employment. As your conduct has been assessed as serious misconduct the Company is not required to provide you with any payment in lieu of notice.

Your final payment shall comply with your terms of employment and include unused annual leave entitlements. Payment advice shall be sent upon the final pay being deposited in to your provided bank account.” 4

[7] The Applicant submits that the dismissal was unfair. In particular, the Applicant submits that the conduct was not serious misconduct and that at its highest could only be misconduct. 5 The primary remedy sought by the Applicant is reinstatement and financial reimbursement for loss of income.6

[8] The Respondent submits that in all the circumstances the Fair Work Commission (the Commission) should find that the Applicant engaged in serious misconduct that was wilful and deliberate and that the dismissal was not unfair. In the event that the Commission found the dismissal was unfair, reinstatement is opposed by the Respondent and they submit any financial compensation should be subject to significant deductions.

The law to be applied

[9] Under the Act, a person is protected from unfair dismissal if:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[10] I find the Applicant is a person protected from unfair dismissal as he had completed the minimum employment period as a regular and systematic casual employee and his earnings were less than the high income threshold. I note that the Applicant may also have been covered by an award or enterprise agreement. However, the Applicant was unaware of any such instrument covering him, and the Respondent’s evidence on this matter was rather vague. 7 I note that there is no reference to an award or enterprise agreement in the letters of appointment of the Applicant.8

[11] Unfair dismissal is governed by Part 3-2 of the Act. Section 385 of the Act sets out what constitutes an unfair dismissal:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[12] With regard to s.385 it is not in dispute that the Applicant was dismissed by the Respondent in line with the meaning of dismissal outlined in s.386(a) of the Act.

[13] With regard to s.385(c) of the Act, the Respondent is not a small business. The Small Business Fair Dismissal Code does not apply in this matter.

[14] With regard to s.385(d) there was no suggestion that the Applicant’s dismissal was a case of genuine redundancy. Section 385(d) does not apply in this matter.

[15] The only matter for consideration is whether the dismissal was harsh, unjust or unreasonable (s.385(b) of the Act).

[16] Section 387 of the Act provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

The evidence

Background

[17] The Respondent has a contract with the Department of State Growth known as the Five Key Bridges Contract. The base service contract for the entire Five Key Bridges Contract is $113,810.87 per month. Within the five key bridges contract is the operation of the Denison Canal Swing bridge located at Dunalley. The base service contract for the Denison Canal Swing Bridge is $10,728.81 per month, with guaranteed minor service works of $6,210.84 per month.

[18] The Respondent submits that the Applicant was employed by the Respondent as a Bridge Operator at Denison Canal and has been employed on a regular and systematic basis as a casual employee since 7 March 2012. 9 The Applicant submits that other than the two events involving the bucket and pole that led to his dismissal he had never received any warnings or had any other issues with his performance. The Respondent did not dispute that the Applicant had been performing the same role since 2012 without a single issue or warning. The Applicant’s evidence is that he is a hard worker, reliable and passionate about his job.10

[19] The Denison Canal was opened in 1905 and allows boats to avoid the voyage around the Tasman Peninsula. The canal was once used by a range of craft including east coast traders, but is now restricted to fishing and pleasure craft. Throughout its history, there has been a tradition of the bridge operator requesting a gratuity or gift of some sort from boats using the canal in return for the service of operating the swing bridge. To the best of the Respondent’s knowledge, the tradition of collection of gratuities at the canal occurred from its opening until 2013. Mr Hurd has a yachting background and was aware that it was an accepted practice for many years to give the canal operator something when they opened the bridge for you. The types of things he believed were collected were “…cray fish if you were very lucky, fish or beer”. 11

Events in 2013

[20] In April 2013, the Respondent was instructed by Mr Darren McConnon, Superintendent Representative at the Department of State Growth (formally the Department of Infrastructure, Energy and Resources (DIER)) that the practice of requesting or accepting gratuities at the Denison Canal was prohibited and was to cease immediately. Mr McConnon issued an Advice to Contractor (ATC) dated 18 April 2013. The ATC reads as follows, omitting formal parts:

“Subject: The Collection of Fees for passage through the Denison Canal Swing Bridge

At the last 2090 Contract meeting it was brought to DIER’s attention that the operator of the Denison Canal Swing Bridge had been placing a bucket on a pole to gather a fee for opening the Bridge.

A Downer representative indicated that the operator has been told to cease the practice.

The practice of the collection of fees is prohibited and must cease immediately.

Can you please confirm after our discussion that the practice of collecting fees at the Denison canal swing bridge has ceased.

Can you also provide written confirmation that this practice will not continue and the measures you have in place to ensure it doesn’t continue.” 12

[21] There is no evidence, and nor did the Respondent assert, that it had communicated to its employees that this accepted practice of collecting gratuities was forbidden until this time in April 2013. The only relevant evidence was that of Mr Hurd which was that “…it was not clear where it had been communicated to employees previously that the practice was unacceptable”. In that context, Mr Hurd stated that there was no disciplinary action taken against employees at that time. 13

[22] In response to the instruction of Mr McConnon and the ATC, Mr Hurd the then Operations Manager “investigated the concern and found there was merit”. 14 This outcome of the investigation is hardly surprising given Mr Hurd knew the practice had been going on for years. Mr Hurd’s evidence is that he then “published” a Memorandum to all employees involved in the Denison Canal on or around 29 April 2013.15 The Memorandum reads as follows, omitting formal parts:

“To all employees involved with Dunalley canal,

At the last 2090 Contract Meeting it was discussed that an operator of the Denison Canal Swing Bridge had been placing a bucket on a pole to gather a fee for opening the bridge.

It is very clear that both the requesting and receipt of gratuities at the Dunalley canal represents a breach of contract with DIER.

Gratuities are to be neither requested nor accepted.

The performance management process will be implemented in instances where this is shown to have occurred and will be interpreted as an intentional failure to comply with reasonable directions for the completion of duties as a part of an individual’s employment with Downer.

Implementation of this process may lead to dismissal.” 16

[23] Mr Hurd said that he was mindful that the practice had been going on for a long time and ceasing the practice was not something he took lightly or was glad about doing stating “it was a big deal at the time that the practice was being stopped and I believe all employees were aware”. 17

[24] The Applicant’s evidence is that he had not seen the 2013 Memorandum until 10 April 2017 at the meeting that led to his dismissal. 18 Nevertheless, the Applicant does accept that he was aware that the practice was banned although he was clear that the source of this knowledge was not the 2013 Memorandum. His evidence is that his understanding was that use of the bucket was banned as a result of the previous operator having alcohol issues.19 During the hearing, the Applicant was clear that he had not seen the Memorandum and that it was the Superintendent in 2013 Mr Tony Pace who had told him that it was banned. The Applicant’s evidence of the exchange he had with Mr Tony Pace was:

“Well, he told me that – or I turned up to work and he said “The bosses were up in Austins Ferry”.  He said, “Come down and tilt my bucket up and the bucket has been banned”.  I said, “Well, no good”.  Well, I was under the assumption that it was because of Tony.  Tony did have a, or still, a few issues with alcohol.” 20

[25] As such the Applicant, while aware that the practice was banned states that he “did not wilfully put Downers contracts at risk as I was not fully aware of the repercussions”. 21

[26] Mr Hurd recalls that there were about five relevant employees at the time in 2013, including the Applicant. As to how the Memorandum was made known to employees, Mr Hurd’s witness statement included the following:

“I made the point of going around to give the memorandum to employees and because of the casual nature of the workforce I did this over a couple of days as I couldn’t get them on the one date at the one spot.

I explained everything in the memorandum very clearly to employees, including that it would put our contract at risk and could lead to dismissal.

I also posted the memorandum on the wall in the site hut at the Denison Canal, in a prominent position as you walked in on the left. There were no other signs put up or in my view necessary. All employees would have been able to clearly see the memorandum.” 22

[27] The Applicant has no recollection of Mr Hurd giving him the Memorandum and stated that he had not seen the Memorandum on wall of the site hut. 23 Mr Hurd was asked what his response to that evidence was and responded as follows:

“I believe I got around to the Applicant.  I made a point of presenting to certainly the guys that were running the site and then I went to site and presented twice to the guys that were on site.  There was also - I know I've written it in there, but I did post that up on the wall but the actual conversing with the guys, my memory is that I made a point of getting to everybody.” 24

[28] Mr Hurd then clarified that despite his evidence in chief that he gave a copy of the Memorandum to employees, that he in fact did not pass a copy of the Memorandum to the employees or give them a copy to take with them. Rather, he spoke to them about what was in the Memorandum and “presented” it to them. 25

[29] Mr Hurd was also asked to respond to the Applicant’s claim that he had never seen the Memorandum posted in the site hut. His evidence was as follows:

“I believe I posted it in the hut.

When did you do it?---At the time and - - -

In 2013?---I beg your pardon?

In 2013?---Yes.  And so I wouldn’t have taken that down.  There’s not a lot that goes on down there so there would be no need to have a lot of churn of the information up there but I imagine after it’s been there for a while it would have been removed.  By a while, I would imagine it would be - you know, these sorts of things can hang around for 12 months with no trouble but there was no expiry date on that memorandum, for it to be removed, posted.

When did you last see this notice hanging on the wall in the site hut?---I really couldn’t say but I believe it would have been there for a reasonable period of time.” 26

[30] The only other evidence relevant to whether the Memorandum was posted on the wall of the site hut was from Mr McGivern who was asked if he had seen it posted there to which he responded “no” although Mr McGivern stated he had only been to the hut once. 27

[31] At around the same time in April 2013 Mr Hurd went to the Denison Canal and identified the pole and the basket that was used to collect the gratuities. Mr Hurd cut the pole into pieces and took the metal ring. He took photographs of the cut up pole and sent it along with a Memorandum around 14 May 2013 to the relevant government department. 28

The Standards of Business Conduct and whether the Applicant was aware of them

[32] The Respondent has in place Standards of Business Conduct (SBC). 29 The SBC includes a provision that deals with the soliciting and accepting gifts and gratuities tiled ‘Gifts and benefits’. Mr McGivern confirmed that this section was the relevant component of the SBC that the Applicant transgressed.30 The Applicant submitted that he did not receive training in that induction module and provided a copy of a printout titled ‘My Online Training’ which shows that he had not started the training.31 However, during the hearing the Applicant stated that he had completed the training.32

The Downer Christmas party on 17 December 2016

[33] On 17 December 2016, the Downer Christmas party was at Salamanca Inn. The Applicant states that he had a conversation with Mr McGivern about the upcoming Wooden Boat Festival and the traditional use of the bucket. The Applicant claims that Mr McGivern gave him the impression that its use would not be a problem. 33 Mr McGivern disputes that the conversation took place at all.

[34] At the hearing, the Applicant recounted the conversation he says that he had with Mr McGivern at the Salamanca Inn as follows:

“… He didn't know what the bucket was and I told him what the bucket was, like, years ago when you're headed out through the canal.  “What does it do?” because he didn't know what the bucket was, and I said, “Well, you filled it with anything, like, beer chocolates, fish”, and his words to me were, “I can't see a problem with that”, but he said, “I can't see a problem with that”.  “I can't see a problem with that”.  I'm sure he's – this is not – “I'll look into it” or “I'll get back to you”, I'm not too sure.  I'm under oath here and it was either, “I'll get back to you”, or – yes, to those words.” 34

[35] The Applicant was very clear and consistent about a conversation taking place with Mr McGivern at the Christmas party. Mr McGivern was less convincing in his evidence on this matter. He did not recall a conversation with the Applicant. On re-examination, the following exchange took place between the Applicant and Ms Gordon for the Respondent:

“Mr Clements, you say that the conversation with Mr McGivern at the Christmas party - we dispute that that conversation actually occurred, but did you tell him the practice was banned when you asked him if you could restart the practice?---No.” 35

[36] On balance, I am satisfied that there was a conversation at the Christmas party between the two men about the practice of using the pole and bucket that was consistent with the Applicant’s evidence on the matter. However, even on the Applicant’s own evidence, Mr McGivern had not given the Applicant approval to engage in the practice. Mr McGivern may well have said that he couldn’t see a problem with it, but he did not go so far to approve it. He said he would “look into it” or “get back to” the Applicant. There was no suggestion from the Applicant that any subsequent approval was given to him by McGivern after the Christmas party. Nevertheless, the conversation, which I accept occurred, is a factor to be taken into account.

The 15 February 2017 incident

[37] On 15 February 2017 during the Wooden Boat Festival, the Applicant states that he was talking to the participants over the UHF radio, they requested the bucket and he extended the bucket “for old times’ sake” and that he received two bottles of ginger beer. 36 Mr McGivern does not contest that the Applicant received two bottles of ginger beer.37 I also accept as truthful the Applicant’s evidence that participants in the Wooden Boat Festival requested that the bucket be extended.

The complaint from the anonymous boat owner

[38] On or around 14 March 2017, Mr Foulston reported to Mr McGivern that Mr McConnon had advised that there was a complaint from a member of the public in regards to the use of the pole and bucket to collect a gratuity on 10 March 2017 and that there were photos of the incident. 38 Mr McGivern instructed Mr Foulston to make some inquiries with the relevant supervisor Mr Lovell and find out if there was any truth to the claim. Mr Foulston complied and rang Mr Lovell on 16 March 2017 and asked him to ask the Applicant if he knew anything about the bucket being in use again. Later that day, Mr Lovell told Mr Foulston that he had spoken to the Applicant and that the Applicant had admitted to accepting cold drinks on 15 February 2017 and that he knew it was wrong.39 I note that despite the Applicant admitting on 16 March 2017 to using the bucket and pole, it is apparent that the Applicant was allowed to continue working in his role for a further three weeks until 6 April 2017 when he was stood down.40

[39] On 21 March 2017, Mr Foulston received an email from Mr McGivern which forwarded the complaint from the boat owner. I note that the boat owner who made the complaint requested anonymity from the Respondent at the time. The email included photographs of the incident complained of by the anonymous boat owner that took place on 10 March 2017. The photographs were included in the evidence of Mr McGivern. Mr Foulston contacted the anonymous boat owner after gaining permission to do so by Mr McConnon. 41 Mr Foulston states that he and Mr McGivern rang the boat owner and that the boat owner said words to the effect of “there were three people in hi-vis clothing when the boat started to come through, one person went up to the top of the stairs and the other two stayed down, one holding out the bucket”.42 Mr McGivern claims that in the same conversation the boat owner claimed that the holding out of the bucket almost caused an incident with the other boats, that one of the boats put 50 cents in the bucket, that other things were put in the bucket around the same time and that there were three people at the bridge.43

[40] It is not in contest that there were three people on the site that day, being the Applicant and the two engineering employees from a different company. I will deal further with the evidence as to the involvement of the engineering employees later. I also note that the anonymous boat owner remains anonymous and that the only direct evidence that I have about the events on 10 March 2017 is from the Applicant.
The discussion on 24 March 2017 of Mr McGivern and Mr Foulston with the Applicant

[41] Mr McGivern and Mr Foulston made arrangements to attend the bridge site on 24 March 2017 and discuss the boat owner’s complaint with the Applicant. Mr Foulston sets out his version of the conversation with the Applicant in his witness statement. 44 During the hearing the Applicant confirmed that Mr Foulston’s setting out of the content of the conversation on the 24 March 2017 was generally accurate.45 In summary, that conversation started with the Applicant being asked a question along the lines of “a complaint has been made from the public, can you enlighten us about it”. The Applicant replied that he had received two bottles of ginger beer back in February during the Wooden Boat Festival and that he used an extendable paint pole that he owns and he used the bucket that’s used for greasing. The Applicant confirmed that he knew the practice was “not meant to be” and that this was the only time it had happened. When the Applicant was pressed on whether or not it was the only time it had happened, he confirmed that it was the only time.

[42] The Applicant was then informed that they had documentation showing that the bucket was used on 10 March 2017. The Applicant was asked if he was aware of this and replied “it must have happened”. The Applicant was asked if anyone else was involved, specifically the engineering company employees and he replied “no”. The Applicant was asked again if there was anything else they should know about and he confirmed they were the only times it had happened.

[43] There is some variation in Mr McGivern’s recounting of the conversation with the Applicant on 24 March 2017. Mr McGivern says that he specifically asked the Applicant if there was any truth to the report of the pole and bucket being used in light of the report from the Department of State Growth. 46 Mr McGivern then says he was confused as to the information that the Applicant was providing as it appeared to relate to a different incident to the 10 March 2017 incident and that from the Applicant’s response he only then realised that there was a further incident in February 2017.47

[44] Mr McGivern’s claim that he was confused by this is inconsistent with the Respondent’s evidence overall. Mr Foulston already knew on 14 March 2017, courtesy of Mr Lovell, that the Applicant had admitted to using the bucket in February 2017. Further to that, on or after 22 March 2017, Mr Lovell gave a letter from the Applicant to Mr Foulston. Mr McGivern says that Mr Foulston showed him this letter on or around 23 March 2017. 48 The letter from the Applicant is dated 22 March 2017 and reads as follows:

“I Shane Clements, On or about the 15th Feb accepted a bottle of ginger beer from a boat heading to Hobart for the Wooden Boat Festival, the boat owner questioned me about the tradition of accepting a token of appreciation when passing the canal, on the spur of the moment without thinking of the consequences I accepted the offer. I realise now this was a mistake to do so and apologise for any inconvenience or bad publicity this may have caused for Downer or State Growth.

This will not happen again whilst I am operating the bridge”. 49

[45] I note that this letter was seen, on the evidence of Mr Foulston and Mr McGivern, prior to the meeting with the Applicant on 24 March 2017. Both men also knew, courtesy of the email forwarded by Mr McConnon on 21 March 2017 50 that the incident that was the subject of the complaint was on 10 March 2017. In that context, it is difficult to understand why the two men were confused about the incident on the 15 February 2017. The Applicant had already admitted to it to Mr Lovell, who had passed on that information to Mr Foulston and further he had admitted to it in writing. Despite this, during the hearing Mr McGivern claimed that the Applicant did not admit to them openly that it was 15 February 2017.51 This claim is clearly inconsistent with the known facts. However, at a later point in the hearing Mr McGivern agreed that the Applicant had “quickly admitted” to the conduct on 15 February 2017.52

[46] Mr McGivern says he asked the Applicant during the 24 March 2017 discussion if there were other occasions “that I don’t know about” and the Applicant said “no”. Mr McGivern told the Applicant at that point that the boat owner had said that there were three people at the bridge. He claims that the Applicant then realised that he had admitted to something other than what he was asking him about and was slightly embarrassed. 53

[47] When the Applicant was asked about the engineering employees Mr McGivern said the Applicant was unsure, that the Applicant checked his records from the daily log book and confirmed on that particular day that the engineering employees had been on site. 54 Mr McGivern says that the Applicant admitted that he said to the engineering employees “do you want to see the oldest trick in the book?” and that he showed them the bucket and the pole.55

[48] Based on the conversation, Mr McGivern formed the view that the Applicant was admitting to one incident but not the other. 56 However, Mr McGivern also agreed that the Applicant was not the one holding out the bucket on 10 March 2017.57 Mr Foulston stated during the hearing that he didn’t know who held the bucket out because he “wasn’t there on the 10th”.58 He then claimed that the Applicant directed the engineering employees to put the bucket out. When asked why that was not in his statement, he withdrew the claim the Applicant directed the engineering employees to put the bucket out.59 Mr Foulston seemed to have formed the view that the Applicant had, based on the photographic evidence, collected gratuities on 10 March 2017. He then conceded he did not know who collected the gratuities.60 On this point, the evidence of Mr Foulston was inconsistent with his own statements and inconsistent with the evidence of Mr McGivern. In fact, it was not entirely clear from the evidence of Mr Foulston what he thought the Applicant was guilty of doing. Mr Foulston was clear that he was concerned that the Applicant had withheld information about the incident on 10 March 2017.61

[49] During the hearing, I asked the Applicant why he denied that there were engineering employees present on 10 March 2017. The Applicant’s response was “I don’t know. I didn’t know the day that I was talking to him about. There’s a fair bit of questioning, you don’t know at the time but I did-yes, I did say no. Yes”. 62

[50] After talking to the Applicant, Mr McGivern and Mr Foulston then went down to the bridge and observed the yellow bucket and confirmed it was a bucket used to put grease in and that the pole in the back of the Applicant’s utility was his own personal painting pole. The Applicant explained that he had the pole as he had been painting out graffiti on the bridge. Mr Foulston noted that there was graffiti that had been painted over but could not tell if the painting was recent. 63

[51] According to Mr Foulston, Mr McGivern explained to the Applicant that it was a serious situation and that “we had to report back to the Department of State Growth about how we would stop the practice from occurring again” and that it would be “status quo” until the information came in and the complaint was received in writing. 64

[52] Mr McGivern’s evidence is that after the discussion with the Applicant on 24 March 2017 “he did not take the matter any further at this time” as all he was doing was finding out the facts about the alleged incident. 65 I note that, other than Mr Foulston meeting with one of the engineering employees, which is dealt with later in the decision, close to a further two weeks passed before the Respondent took any further action. On 5 April 2017, Mr McGivern received an ATC advising that the Respondent was in breach of the contract as a result of the collection of gratuities.66 I will deal with events surrounding the 5 April 2017 ATC later in the decision.

The 10 March 2017 incident

[53] Mr Foulston gave evidence that he met with a Mr Ashley Gow, one of the engineering employees on 28 March 2017. Mr Gow did not provide any evidence. Mr Foulston claims Mr Gow told him that the Applicant said on the day in question “I’ll show you the oldest trick in the book” and then told a third person Ben to hold out the bucket. Mr Foulston says that Mr Gow said that they did not know any better and thought it was just the practice. 67 I note that neither of the engineering employees provided evidence in the matter and the evidence relating to their involvement is only what Mr Foulston recalls that they said about the incident.

[54] The evidence of the Applicant in respect to the engineering employees was that “a short conversation happened between myself and them about the tradition of the bucket as they were interested. One of the contractors held the bucket out while I was at the control panel of the bridge”. The Applicant says the man that held the bucket out was named Ashley. 68 At the hearing the Applicant gave the following evidence in relation to what occurred on 10 March 2017:

“Your evidence was that he was interested in the bucket tradition.  Just tell me more about what happened on 10 March.  How is that – who held out the bucket?  How did that all come about?---On 10 March there was – I recall about five vessels that were in the line come through the – five or six.  It might've been six, I think.  Five or six together.

Yes?---Come through the canal.  And one of the vessels requested, “Are you going to put the old traditional bucket out?” and I was talking to the bridge – not the bridge operator, the bridge maintenance people down there, “What do you do?” and they said, “Well, you just put the bucket out on the painter pole thing”.  Then I did the bridge opening and of course the boats go away for the bridge boat to come through.  This is about five minutes that they see and then the bucket – they said, “Well, aren't you going to put the bucket out?” and I said, “Well, the bucket?” and they said to me, “The bucket”, and I said, “Well, the bucket is there, are you going to use it?” and then I said, “Well, you can use it if you want to”.  I did not demand the people to use the bucket.  I mean, because I was up the top of the bridge and the guys were down on the (indistinct).

I see?---They – I don't know what they actually got in the bucket that day, but there was 50 cents but it – a 50 cent piece I know for sure and from my recollection I think it was still on the generator down there.  There's a generator in the control room down there.  As far as I know it's there, I wouldn't have got it.  It's been four months or so or more or – but what they said to those people going through the few men on the boats and also I did read that there was a bit of a mishap in the canal with the vessel because – it didn't say accident, but mishap I think it said in the report.  Well, I didn't see any of that because I was up the top.  Whether it did happen or didn't was beyond me.

Sure?---I was not down there.  I could not see that happening.  As I said I don't know what those people – those two guys down there – men, sorry, said or did to any of the vessels or what.  I wouldn't have any idea.  Because while we’re up there the machines are – the generators are going.  I'll rephrase that, Commissioner, it's not – the generator wasn't going.  It runs on power it was at that time, but still the motor going and you can't hear what's going on down there, everyone talking.” 69

[55] I found the Applicant to be a truthful and consistent witness overall. In that context and considering the Applicant’s evidence is the only direct evidence I have as to what occurred on 10 March 2017, I prefer the Applicant’s evidence to that of Mr Foulston’s evidence of his conversation with the engineering employees. Accordingly, I am satisfied that on 10 March 2017 the Applicant was present when the bucket was put out and that he showed the engineering employees how to do it. There is no direct evidence that anything other than a 50 cent piece was collected. There is no evidence to support the proposition that there was a safety risk to the vessels in the channel. The Applicant did not put the bucket out on 10 March 2017 and did not solicit gratuities on that day.

The process leading to the dismissal

[56] On 5 April 2017, the Respondent received an ATC from the Department of State Growth, notifying the Respondent that they were in breach of their contract as a result of the bucket and pole being used to “gather a fee for opening the Bridge”. The ATC noted that a previous Downer representative had been told to cease the practice and that the Department reserved the contractual right to take all or part of the service contract from the Respondent. 70 On the same day, Mr McGivern issued the Applicant with a Notice of Performance Improvement Meeting letter.71 That letter reads as follows, omitting formal parts:

“This notice is to inform you that a performance improvement meeting will be held requiring your attendance to discuss your serious misconduct in your role as Bridge Maintenance Operator. The people present during this discussion will be Ken McGivern, Manager Tasmania and Jon Foulston, Operations Manager.

This meeting relates to your substantiated conduct in regards to an incident that occurred on the 10^th March 2017.

The reasons for the meeting are to discuss the issue with you and allow you an opportunity to explain, from your point of view, what has happened and why. You should be aware that depending on the outcome of the discussion with you, and any related investigations, disciplinary action may be taken against you.

You are offered the opportunity to have a Support Person attend the meeting. Please advise us if you would like to take advantage of this opportunity and if so who your Support Person will be.

The meeting will be held on Friday 7^th April 2017 at 2:00pm at Copping Landfill, Site Office.

Please return this letter signed and a copy shall be placed in your Employee File.”

[57] I note that the letter refers to the Applicant’s “substantiated conduct” on 10 March 2017. There is no mention of the event the Applicant admitted to which occurred on 15 February 2017. The meeting was to be held on 7 April 2017. The letter warns the Applicant that disciplinary action may be taken against him. It does not specifically mention that dismissal was a possible outcome although it does refer to the Applicant’s “serious misconduct”. At the hearing Mr McGivern conceded that the letter did not mention that termination could be an outcome. 72 Mr McGivern’s evidence as to how it was the Applicant should have been aware that his employment was at risk appeared to relate to his assumed knowledge of the Memorandum in April 2013.73 When questioned about this, Mr McGivern said that the Applicant was on notice that the meeting was to discuss his alleged serious misconduct.74

[58] According to Mr McGivern on 7 April 2017, the Applicant attended his office to pick up a copy of the Notice of Performance Improvement Meeting letter and said that he had felt under an enormous amount of pressure from the old locals to start the “old tradition” again. Mr McGivern said he asked why the Applicant had not raised the issue with his supervisor and the Applicant did not respond. 75

[59] Ultimately, the disciplinary meeting was held on 10 April 2017. I note that the evidence of Mr McGivern was as follows:

“Notwithstanding that I had all the necessary evidence related to the complaint made by the boat owner and an admission by the Applicant that he had breached the lawful direction not to use the pole and bucket on another occasion, I did not make my mind up prior to the disciplinary meeting as to what disciplinary action would be taken.” 76

[60] Mr McGivern had prepared a termination letter prior to the meeting but said if that there was an acceptable explanation he would not have given the letter. Mr McGivern did not say what other disciplinary action, if any, he was contemplating. 77

[61] The Applicant attended the meeting with his wife. The Applicant’s evidence is that his wife wanted the meeting postponed in order to get advice and made that known to the Respondent twice. 78 Mr McGivern agrees that a request to defer was made on one occasion and agrees that he refused to postpone the meeting. At the hearing Mr McGivern reaffirmed that he remembered the first request, however he did not recall the second request but indicated that it may have been said.79 Mr McGivern said that he saw no reason to delay the meeting as the Applicant was aware of what he had done, he had a support person and he had been given 48 hours’ notice of the meeting.80

[62] At the meeting the Applicant reiterated that he felt under pressure to start up the process of holding out the bucket again. The Applicant’s evidence is that he told them that he knew use of the bucket had stopped but he thought that was because of the previous operators’ issues with alcohol. 81 The Respondent was not satisfied with the Applicant’s explanation and after adjourning for 10 - 15 minutes and discussing the matter with Human Resources, Mr McGivern handed the Applicant the letter of termination. Mr McGivern confirmed that he was the decision maker in effecting the termination.82 The Applicant claims that it was quite obvious to him that the Respondent had already made the decision to dismiss him prior to the meeting and that they had already completed the letter of termination.83 In all of the circumstances, the Applicant submits he was not afforded procedural fairness.84

Events after the dismissal

[63] Mr McGivern gave evidence that after receiving the ATC dated 5 April 2017 the Respondent advised the Department of State Growth that they had investigated the matter and confirmed the allegations were correct but that the Department are not aware of “what the end result of it was”. 85 Mr Foulston confirmed that they had sent advice to the Superintendent, Mr McConnon stating that they had “done a toolbox meeting” and outlined that “…from their investigation our decision was to terminate the employee that was involved…”.86 He also confirmed that Mr McGivern was aware that the Department had been so advised.87

[64] Mr McGivern confirmed that at the time of the hearing, no other action had been taken by the Department beyond sending the ATC on 5 April 2017. 88 Furthermore, he was not sure if the Department would take the service contract from the Respondent.89

Impact of the termination on the Applicant

[65] The Applicant submits that the dismissal has led to a very poor outlook for his future employment prospects, mental health and financial situation. 90 The Applicant submits that he has distributed his resume to varied positions and contacts without success. He is 57 years old and has worked in physically demanding jobs for most of his life. He has a poor standard of education.91 The Applicant’s only training and experience is in green keeping and bridge operation and his body cannot cope with the physical work of green keeping any longer.92 His role as Bridge Operator with the Respondent was his “dream job” as he has a love of boats and personal understanding of the professional fishing industry.93 At the hearing it was apparent the Applicant had made only one job application to the local abalone farm.94

Consideration

Was the Applicant aware of the 2013 Memorandum?

[66] This is an important matter because the 2013 Memorandum makes clear that there is a requirement to cease the “bucket and pole” practice. Further, that failure to do so would lead to a breach of the Respondent’s contract and that the dismissal of an employee engaging in this practice could result.

[67] The Applicant was consistent in his claim that he had never seen the 2013 Memorandum. He knew that the practice was banned sometime around 2013, but his understanding was that this was as a result of the previous operator’s issues with alcohol. The Applicant was clear he did not have knowledge that the conduct could put the Respondent’s contract at risk.

[68] Mr Hurd in his evidence in chief attested to “publishing” the Memorandum and “giving it to employees”. 95 However, during the hearing he said he did not “give” or “pass” a copy of the Memorandum to the employees to take away but that he “presented” it and spoke to them about it. He believed that he talked to all of the employees but was not convincing on this point.96 However, to be fair to Mr Hurd, April 2013 was some time ago and further, Mr Hurd ceased employment with the Respondent in late 2014.97 On balance, I prefer the evidence of the Applicant that Mr Hurd did not meet with him at the time in 2013 and did not show him the Memorandum. I note that there was no evidence of steps taken by the Respondent to communicate to employees that the bucket and pole practice could lead to a breach of contract with the Department, other than the endeavours of Mr Hurd in 2013.

[69] As to whether the Memorandum was posted on the wall of the site hut, the Applicant’s evidence is that he never saw it there. Mr Hurd was adamant that he posted the Memorandum on the wall but was unable to say how long it was there. Mr McGivern was asked if he had seen it when in he entered the site hut on the one occasion he had been there and he said he had not seen it. It seems unlikely that it was displayed in a highly visible place as stated by Mr Hurd if Mr McGivern did not see it. On the balance of the evidence I am satisfied that the Applicant had not seen the 2013 Memorandum. As such, the Applicant was unaware that the use of the bucket and pole could lead to breach of contract for the Respondent or could lead to dismissal for the Applicant.

Did the Applicant engage in misconduct on the 15 February 2017?

[70] It is not in contest that during the Wooden Boat Festival on 15 February 2017 the Applicant held out the bucket on the pole to a passing boat and received two bottles of ginger beer. When the Applicant did so he knew that the practice was banned but his source of that information on his evidence was as a result of the discussion with Mr Tony Bates. The Applicant was aware of the companies Standards of Business Conduct and its requirement to never solicit any gift or benefit. It is clear that, on the Applicant’s own evidence, which I accept, that on 15 February 2017 he engaged in conduct he knew was banned. On that basis, it is evident that the Applicant’s actions on 15 February 2017 can be construed as misconduct.

Did the Applicant engage in misconduct on the 10 March 2017?

[71] As dealt with earlier, I accept the evidence of the Applicant as to what occurred on 10 March 2017. It was a person on a passing boat and the engineering employees who engaged in the practice of raising the bucket and one of them, not the Applicant, who put the bucket out. Certainly, the Applicant did not dissuade them from doing so and made available his painters’ pole and bucket and showed them how to do it and he was a fool in doing so, however, the Applicant himself did not solicit any gifts nor receive any on that day. I am not satisfied that the Applicant engaged in misconduct on 10 March 2017.

Was the Applicant dishonest about the 10 March 2017 incident?

[72] The Applicant admitted to the conduct on 15 February 2017 when questioned about it by Mr Lovell. He wrote a letter soon after the conversation with Mr Lovell confirming his conduct on 15 February 2017. At the meeting on 24 March 2017, there was a rather confused conversation. The evidence of Mr McGivern was that he himself was confused, which is at odds with the fact he already knew about the 15 February 2017 incident. It is apparent that the Applicant denied that there was any other occasion, however, it seems to me that his denial of this was in the context that the Applicant thought he was being questioned about the only occasion that he himself put out the bucket. When it was put to him that there was an event on 10 March 2017 he agreed it must have happened, checked the log book and immediately confirmed that was the day the engineering employees were there. The Applicant’s initial denial I believe reflects the state of confusion in the conversation. I am satisfied the Applicant did his best to respond honestly to the questioning from Mr McGivern and Mr Foulston. It is self-evident some of his responses were incorrect but considering the evidence of the conversation overall, I am satisfied the error in his responses were as a result of confusion rather than an intention to mislead.

Impact on the Respondent of the events

[73] At the time of the hearing, the Respondent did not know what action, if any, the Department of State Growth was going to take in respect to the matter. As this is the second time the Respondent had breached the contract, this certainly makes the matter more serious. I note that the first breach was notified in circumstances where it is apparent that the Respondent had taken no action to end the bucket and pole practice up until April 2013. The Applicant was not responsible for the first breach, if he and/or other employees were engaging in the bucket and pole practice at that time they were doing so without any indication from the Respondent that it was forbidden. Moreover, they were engaging in a practice that had a tradition that dated back decades. The first breach was notified in 2013 because the Respondent had apparently not done anything to end the practice.

[74] Nevertheless, I accept that the receipt of the second ATC is more serious for the Respondent. The 2017 ATC makes clear that as this is the second confirmed incident and that the Department reserves its rights to take all or part of the service contract from the Respondent. If there was a loss of the contract, this would lead to a significant loss of income for the Respondent and a loss of employment for employees engaged pursuant to it.

[75] I note that on the day of the hearing, and after the conclusion of the witness evidence but prior to final submissions, the Respondent sought to reopen the case to lead further evidence through Mr McGivern to the effect that the Respondent was not successful in its bid to win a $9 million contract for surfacing work.I declined to reopen the case but accepted as a fact that the Respondent had not won the tender. That was the evidence Ms Gordon informed me she wanted to lead through Mr McGivern. 98 However, I do not accept that the Respondent was unsuccessful in winning that contract because of the reputational damage caused by the Applicant as the Respondent submitted.99 There is no evidence for that proposition.

Was the dismissal harsh, unjust or unreasonable?

[76] The ambit of the words “harsh, unjust or unreasonable” in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd 100 by McHugh and Gummow JJ as follows:

“. . . It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 101

[77] Ultimately, however, it is the matters set out in s.387 of the Act to which regard must be had.

Section 387(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[78] There must have been a valid reason for the dismissal related to the Applicant’s capacity or conduct, although it need not be the reason given to the Applicant at the time of the dismissal. 102 To be a valid reason it must be “sound defensible or well founded”. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the Applicant was guilty of the conduct. Where serious misconduct is alleged the test for a valid reason for dismissal does not change. The test remains whether the reason was “sound, defensible or well founded”.103 A valid reason for dismissal does not require conduct amounting to a repudiation of the contract of employment.104 The Commission must make a finding as to whether the conduct occurred based on the evidence before it.105

[79] I have determined that the Applicant engaged in the conduct of putting out the bucket and pole during the Wooden Boat Festival on 15 February 2017. While he misapprehended the reason that the practice had been banned, he knew that it had been banned. Further he was aware of the Respondent’s Standards of Business Conduct. A breach of an employer’s policy will not itself give rise to a valid reason for dismissal. It depends on the character of the policy and the nature of the breach. 106 In the circumstances of this matter I find that the Applicant acted in breach of the Respondent’s policy on 15 February 2017 and that this constitutes a valid reason for termination of his employment.

387(b) whether the person was notified of that reason and 387 (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[80] Notification of the valid reason to terminate must be given to the employee before the decision to terminate is made 107 in explicit terms and in plain and clear terms.108 While the Notice of Performance Improvement Meeting letter issued to the Applicant states that disciplinary action may be taken it did not indicate that dismissal was a possible outcome of the meeting. Indeed, its title suggests that the meeting was to discuss the Applicant improving his performance. The letter refers to the Applicant’s “substantiated conduct” on 10 March 2017. Given that the Applicant did not put out the bucket and pole out on 10 March 2017 it is not clear what is meant by his substantiated conduct. The letter does not refer to the conduct of the Applicant on 15 February 2017. I am not satisfied that the notification of the reason is explicit and clear.

[81] The Applicant’s wife attempted to delay the meeting and this was refused, however it is apparent that the Applicant was given an opportunity to respond. In Wadey v YMCA Canberra 109 Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:

“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.” 110

[82] The Applicant asserts that the Respondent had already made the decision to dismiss him ahead of the meeting of 10 April 2017 and this is consistent with the termination letter that Mr McGivern accepts was prepared in advance of the meeting. I have considered whether Mr McGivern had predetermined the outcome but on balance I am not satisfied on the evidence that he did.

[83] Overall, the process that led to the dismissal of the Applicant had a number of flaws, however I am not satisfied there was significant procedural unfairness.

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

[84] There was no refusal to allow the Applicant to have a support person present.

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

[85] This factor is not relevant as the termination related to allegations of serious misconduct.

387 (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures following in effecting the dismissal; and 387 (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[86] The Respondent is a large organisation. There is no suggestion that the factors in s.387(f) and (g) would have had an impact on the procedures followed in effecting the dismissal. These are neutral considerations.

387(h) any other matters that the FWC considers relevant

[87] Section 387(h) provides the Commission with broad scope to take into account any other matters it considers relevant. I have also taken into account the following matters:

Impact on the Applicant’s personal or economic situation

[88] The impact of the dismissal on the Applicant’s personal or economic situation may be taken into account. 111 The Applicant had at the time of the hearing only applied for one position however I am satisfied on the evidence that there are limited positions that the Applicant is capable of performing. The Applicant is almost 57 years old, has a poor standard of education, has worked in physically demanding jobs most of his life and he is not capable of that sort of physical work anymore.112 With the economic job climate in the South East of Tasmania being notoriously poor, his evidence is that it is difficult to find employment.113 I am satisfied against this background that the dismissal has had a significant effect on the Applicant. He remains unemployed and it would appear unlikely he will secure alternative employment.

The Applicant’s work history

[89] The Applicant’s work history is a factor which can be taken into account in determining whether the dismissal is unfair. 114 Other than the events on 15 February 2017 and 10 March 2017, the Applicant has not been subject to any warnings for poor performance or misconduct during his time working for the Respondent over approximately 5 years. The Respondent did not dispute that the Applicant had been performing the same role since 2012 without a single issue or warning other than the events dealt with in this matter. The Applicant’s evidence is that his role as Bridge Operator with the Respondent was his dream job. The Applicant’s unblemished employment history should be taken into account.

Summary Dismissal

[90] In cases involving summary dismissal, the proportionality of the dismissal may be considered. 115 Where an employee has been dismissed without notice (summary dismissal) for serious misconduct the Commission may find that, although there was a valid reason for the dismissal, the dismissal was harsh because summary dismissal was a disproportionate response.116 I have found that the Applicant was guilty of misconduct on 15 February 2017 through his actions of putting out the bucket and pole and in doing so breaching the Respondent’s Standards of Business Conduct. The Respondent submitted that the conduct was serious misconduct and that the conduct clearly fits within the Acts definition of serious misconduct.117 In Sharp v BCS Infrastructure Support Pty Limited118a Full Bench of the Commission considered serious misconduct in applying the provisions in s.387 of the Act:

“[34]It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power InternationalPtyLtd Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice” and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. “Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts…”(endnotes omitted) 119

[91] I respectfully agree with and adopt the approach of the Full Bench.

[92] In this matter the Applicant was unaware of the 2013 Memorandum and was therefore unaware of the gravity of the misconduct. Further, it is a fact that the gravity of the Applicant’s conduct is somewhat amplified because of the fact that it resulted in the Respondent receiving a second ATC. However, the Applicant is blameless for the Respondent’s first ATC. The first ATC was a result of the apparent failure of the Respondent to inform its employees up until 2013 that the practice should not be occurring. This context is important and needs to be taken into account when considering the gravity of the Applicant’s conduct when it occurred. Taking these factors and all of the surrounding circumstances into account the Applicant’s conduct is better characterised as ill advised conduct or omission to act, as a result of an error of judgment. 120

[93] I am not satisfied the Applicant engaged in a deliberate flouting of the essential contractual conditions given his lack of awareness of the risk to the Respondent’s contract. His conduct lacks the quality of “wilfulness”. 121 The conduct was not of such a grave nature as to be repugnant to the employment relationship.

[94] There are also a number of mitigating circumstances:

• The actions of the Applicant on 15 February 2017 were motivated by the participants in the Wooden Boat Festival urging him to extend the pole and bucket for old times’ sake. He was consistent in his evidence on this, including in a conversation with Mr McGivern on 7 April 2017. 122 It’s apparent that the Applicant was keen to be responsive to participants in the Wooden Boat Festival in light of the long history of the tradition. The Applicant knew that he should not engage in the activity, however this single act of misconduct, the seeking of a “gift” and the receiving of two bottles of ginger beer has to be considered in the context of the environment of the Wooden Boat Festival and the urging of the participants.



• The conversation with Mr McGivern at the Christmas party did not provide authorisation for the Applicant to engage in the activity. However, it was a rather inconclusive conversation where it was apparent that the Applicant was certainly not told that the bucket and pole could not be used under any circumstances and was told by Mr McGivern that he “couldn’t see a problem with it” and he would “look into it”.



• On 14 March 2017 the Applicant admitted to the misconduct on 15 February 2017 to Mr Lovell. Despite the Respondent’s assertion that the conduct of the Applicant is serious misconduct and the associated risks for the contract, the Applicant was allowed to continue working from 14 March 2017 until 6 April 2017 when he was stood down, a period of approximately three weeks. Mr McGivern’s claim that he did not take the matter further during this period as he was “finding out the facts” makes little sense given the Applicant had already admitted to the misconduct on 15 February 2017. The fact that the Applicant was allowed to work for this period of time, despite having admitted to conduct on the 14 March 2017 is inconsistent with the position that summary dismissal was appropriate and underscores the harshness of the Respondent’s decision to dismiss.

[95] In light of the mitigating circumstances, I consider that the dismissal of the Applicant was disproportionate to the misconduct. Further the personal circumstances and work history of the Applicant need to be taken into account. Considering all of these factors, I consider the dismissal of the Applicant to be harsh.

Conclusion

[96] The valid reason for the Applicant’s dismissal and the lack of any significant procedural unfairness in effecting the dismissal are matters that weigh against a finding that the dismissal was unfair. However, in light of the factors considered above, I consider the termination of the applicant to be harsh. It follows that the Applicant was unfairly dismissed.

Remedy

[97] I now turn to consider the question of remedy.

The statutory provision

[98] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

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

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”

[99] Given my earlier conclusions, the matters set out in ss.390(1) and (2) are satisfied. Therefore, the jurisdictional preconditions to the order of an appropriate remedy are satisfied. The question of whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one. I consider that a remedy is appropriate in all the circumstances of this case.

[100] Subsection 390(3) of the Act underscores the primacy of reinstatement as a remedy for an unfair dismissal. The discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is inappropriate. In this matter, the Applicant seeks reinstatement. The Respondent opposes reinstatement on a number of grounds, including that there has been a loss of trust and confidence in the Applicant and that the Applicant’s position has been replaced. 123 I will deal first with the issue of loss of trust and confidence.

Loss of trust and confidence

[101] There is no doubt that a loss of trust and confidence is an important factor in considering whether reinstatement is appropriate. There are a number of authorities that provide guidance on consideration of a submission that there is a loss of trust and confidence on the question of whether reinstatement is an appropriate remedy. These cases are conveniently summarised in the Fair Work Commission Benchbook and are replicated below:

“‘Trust and confidence is a necessary ingredient in any employment relationship …’ 124 Where trust and confidence have been lost, reinstatement may be impractical.125 The reason for the loss of trust and confidence must be ‘soundly and rationally based’.126

An employer who has accused an employee of wrongdoing justifying summary dismissal may be reluctant to change their opinion regardless of a court finding. 127 Consequently it is important to carefully scrutinise any claim by an employer that reinstatement is impractical because of a loss of confidence in the employee.128

The fact that it may be difficult or embarrassing for an employer to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct is not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. 129

The loss of trust and confidence is a relevant factor to be considered ‘but it is not necessarily conclusive’. 130

Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.” 131

[102] I rely on those authorities in considering the matter of loss of trust and confidence and its impact on whether reinstatement is an appropriate remedy.

[103] As noted above, the Respondent has submitted that reinstatement as a remedy is inappropriate because there has been a loss of trust and confidence in the Applicant.

[104] The Respondent submitted that:

• The Applicant’s conduct confirms that reinstatement is inappropriate and the employment relationship is “broken beyond repair”;



• The Applicant has known of and participated in the banned practice on at least two occasions;



• The Applicant has not followed lawful and reasonable instructions despite them being directly communicated to him;



• The Applicant cannot be trusted to be honest or to work remotely and unsupervised which is a requirement of the bridge contractor; 132



• The Applicant’s failure to admit to soliciting for gratuity on more than one occasion until advised there were witnesses to a second incident. 133

[105] I have considered these factors in light of the facts of the case. I have determined that the Applicant’s conduct was a valid reason for dismissal. In doing so I have found that he is guilty of one instance of misconduct on the 15 February 2017. On 10 March 2017, the Applicant was a fool to have facilitated the bucket going out but it was not an act of misconduct. The Applicant’s single act of misconduct is not a sufficient basis to establish that the employment relationship is beyond repair.

[106] The Applicant will be required to work remotely and the Respondent is concerned about the Applicant reoffending in an unsupervised environment. However, this concern has to be balanced against the level of insight of the Applicant into the seriousness of his actions, now that he is aware of them. The Applicant’s level of insight is strong and compelling. He has been contrite from the outset as evidenced by his letter of 22 March 2017. 134 The Applicant clearly understands he has done the wrong thing, is sincerely sorry and wants the opportunity to prove he is a trusted and valued employee and that he would never have knowingly put his job at risk.135

[107] As to the failure of the Applicant to admit to soliciting for gratuity on the second occasion, I have determined that I am satisfied the errors in the Applicant’s responses were as a result of confusion rather than an intention to mislead. Taking into account all of the factors, I am not satisfied that reason for loss of trust and confidence is soundly and rationally based.

No positions available

[108] In their written submissions, the Respondent submitted that they had recruited a new employee to replace the Applicant and an order for reinstatement would require termination of this employee. 136 At the hearing the Respondent submitted that there were two casual employees who had replaced the Applicant and that they would both have to be dismissed. This needs to be considered as a factor as to whether it is appropriate to reinstate the Applicant.

[109] However, it is not unusual in cases involving claims for reinstatement that by the time the matter is determined by the Commission, the position that was occupied by the employee is no longer available However, on its own this is insufficient for a finding that reinstatement is not appropriate. It is just one factor to be taken into account in determining if reinstatement is appropriate.  137

Contractual Risk

[110] The Respondent submits that reinstatement of the Applicant will create an unacceptable risk to the continuation of the Respondent’s contract as they are still waiting for advice from the Department of State Growth, which thereby jeopardises the employment of up to 10 employees engaged on the contract. 138 The Respondent is effectively arguing that I should not reinstate the Applicant because this may lead to the Department exercising a right that it has not yet exercised to terminate the contract with the Respondent. Essentially this is a submission that the Department may terminate the contract because the Applicant has been reinstated by order of the Commission. There is no evidence to support the proposition that the Department would respond in this way. In any case, I would expect that the Department understands the need for the Respondent to comply with an order of the Commission.

[111] Taking into account all of the circumstances, I do not consider that reinstatement is inappropriate. Consequently, an order for reinstatement will be made.

Continuity of employment

[112] Section 391(2)(a) of the Act provides discretion to the Commission to determine if it is appropriate for an order maintaining the Applicant’s continuity of employment and continuous service with the Respondent.

[113] An order for continuity is an exercise of discretion “separate and distinct from the decision to reinstate the employee”. 139 This means that a person may be reinstated with or without an order for continuity of employment.140 An order for continuity “ensures that the period specified is taken into account in determining any entitlement to service related benefits”.141

[114] In this case the Applicant was a casual employee and was engaged on what could only be considered a regular and systematic basis over a reasonably lengthy period of time. I note that the uncontested evidence of the Applicant’s working pattern (9 hours per day, 5 days per week and 10 days per fortnight including weekends and public holidays) 142 is more consistent with that of a permanent employee than a casual. In any case, I consider that in the circumstances of this case where the Applicant was a relatively long serving employee, that the absence of an order for continuity would operate as a penalty and adversely affect the Applicant’s entitlements that are based on a period of continuous employment. No submission was made to the effect that if reinstatement were determined to be the appropriate remedy that an order for continuity should not be made. I am unaware of any discretionary reasons why an order for continuity in the circumstances of this case should not be made and I propose to make such an order.

Restoration of lost pay

[115] Section 391(3) of the Act provides the Commission with discretion, where appropriate, to make an order causing the Respondent to pay the Applicant an amount for the remuneration lost, or likely to be lost, by the Applicant because of the dismissal. Section 391(4) of the Act sets out factors which must be taken into account in determining the amount under s.391(3). These factors are:

• Any remuneration earned by the employee between the dismissal and making the order for reinstatement; and



• Any remuneration reasonably likely to be earned between making the order for reinstatement and the actual reinstatement.

[116] As I have indicated, an order to restore lost pay is discretionary. The Commission may take into account ‘all of the circumstances of the case, including the conduct’ of the employee that led to the dismissal. 143 Any misconduct by the employee that has led to the dismissal may reduce the amount ordered.144

[117] I propose to take into account the Applicant’s misconduct on 15 February 2017 as well as his foolish actions on 10 March 2017. I am satisfied the Applicant now understands the seriousness of his actions. However a significant reduction in the amount of lost pay is warranted in all of the circumstances in this case. The deduction will reinforce to the Applicant the necessity of complying with the Respondent’s Standards of Business Conduct. Further, while I am satisfied that there is significant difficulty for the Applicant in securing employment, I am not satisfied that the Applicant has made sufficient efforts to obtain other employment. In the circumstances, I propose to reduce the order that I will make for lost pay by 50%.

[118] The Applicant was summarily dismissed on 10 April 2017. I propose that the order for reinstatement will take effect on Monday, 25 September 2017. This will allow sufficient time for the Respondent to make arrangements for the reinstatement of the Applicant. Therefore, the period for which a restoration of pay order would be made is 24 weeks. With the 50% reduction that I propose, the order for restoration of pay will be for 12 weeks’ at the Applicant’s ordinary rate of pay (taking into account the Applicant’s casual rate of pay and the Applicant’s regular hours at the time of dismissal. For the avoidance of doubt this is 50% of the amount the Applicant would have earned in the period 10 April 2017 – 25 September 2017). From this I propose to deduct any income that the Applicant has earned between the date of his dismissal and the date on which the reinstatement order takes effect. In order that such deduction, if any, is properly calculated I require the Applicant to verify by affidavit, the sources and sums of any income that he has earned (or will likely have earned) for the period between 10 April 2017 and 25 September 2017. The affidavit must be filed in my chambers and served on the Respondent within five days of the date this decision.

[119] This remedy will ensure a fair go all round is accorded to both the employer and employee concerned.

Conclusion

[120] For the reasons earlier given, I am satisfied that dismissal of the Applicant by the Respondent was unfair. I am also satisfied in the circumstances that a remedy is appropriate, and that reinstatement is not inappropriate. I propose to order reinstatement, continuity of service and partial restoration of pay. The reinstatement will take effect on Monday, 25 September 2017 and the restoration of pay order will be 12 weeks’ pay at the Applicant’s ordinary rate of pay less any income earned between 10 April 2017 and 25 September 2017.

[121] The Applicant is required to file and serve an affidavit verifying the sources and sums of any income that he has earned (or will likely have earned) for the period between 10 April 2017 and 25 September 2017 within five days of the date of this decision.

[122] Orders giving effect to this decision will be separately issued.

COMMISSIONER

Appearances:

S Clements on his own behalf for the Applicant

L Gordon for the Respondent

Hearing details:

2017

Hobart:

1 August.

Final written submissions:

4 July 2017

 1   Exhibit R1, Witness Statement of Ken McGivern, Attachment KM11

 2   PN227

 3   Respondent’s Outline of arguments: merits, filed 4 July 2017, Q2b

 4   Exhibit R1, Witness Statement of Ken McGivern, Attachment KM11

 5   Exhibit A2, Applicant’s Outline of argument: merits, filed 13 June 2017, Q4c

 6   Form F2 – Unfair Dismissal Application, filed 18 April 2017, Q2.1 and Exhibit A2, Applicant’s Outline of argument: merits, filed 13 June 2017, Q7

 7   PN347 - 358

 8   Exhibit R1, Witness Statement of Ken McGivern, Attachments KM1 and KM2

 9   Respondent’s Outline of arguments: merits, filed 4 July 2017, Q4c

 10   Exhibit A1, Applicant’s Witness Statement in Reply, [5], [10]

 11   Exhibit R3, Statement of David Hurd, [11]

 12   Exhibit R1, Witness Statement of Ken McGivern, Attachment, KM7

 13   Exhibit R3, Statement of David Hurd, [8]

 14   Exhibit R3, Statement of David Hurd, [7]

 15   Exhibit R3, Statement of David Hurd, [9]

 16   Exhibit R1, Witness Statement of Ken McGivern, Attachment KM4

 17   Exhibit R3, Statement of David Hurd, [12]

 18   Exhibit A1, Applicant’s Witness Statement in Reply, [4]

 19   Exhibit A2, Applicant’s Outline of argument: merits, filed 13 June 2017, Q4c

 20   PN132

 21   Exhibit A2, Applicant’s Outline of argument: merits, filed 13 June 2017, Q4d

 22   Exhibit R3, Statement of David Hurd, [14] – [16]

 23 Exhibit A1, Applicant’s Witness Statement in Reply, [4] and PN198 - PN202

 24   PN618

 25   PN622 - PN623

 26   PN624 - PN628

 27   PN493

 28   Exhibit R3, Statement of David Hurd, [17] - [19]

 29   Exhibit R1, Witness Statement of Ken McGivern, Attachment KM9

 30   PN405

 31   Exhibit A4, Applicant’s document list, filed 13 June 2017, Attachment E

 32   PN167 - PN169

 33   Exhibit A3, Applicant’s Statement of Evidence, p4

 34   PN233

 35   PN256

 36   Exhibit A3, Applicant’s Statement of Evidence, p4

 37   PN359 - PN361

 38   Exhibit R1, Witness Statement of Ken McGivern, [7]

 39   Exhibit R2, Witness Statement of Jon Foulston, [9]

 40   Exhibit A3, Applicant’s Statement of Evidence, p4

 41   Exhibit R2, Witness Statement of Jon Foulston, [11] – [12]

 42   Exhibit R2, Witness Statement of Jon Foulston, [13]

 43   Exhibit R1, Witness Statement of Ken McGivern, [15]

 44   Exhibit R2, Witness Statement of Jon Foulston, [17] – [44]

 45   PN236 - PN248

 46   Exhibit R1, Witness Statement of Ken McGivern, [17]

 47   Exhibit R1, Witness Statement of Ken McGivern, [18] – [19]

 48   Exhibit R1, Witness Statement of Ken McGivern, [38]

 49   Exhibit R1, Witness Statement of Ken McGivern, Attachment KM5

 50   Exhibit R1, Witness Statement of Ken McGivern, Attachment KM3

 51   PN463

 52   PN473

 53   Exhibit R1, Witness Statement of Ken McGivern, [21] – [24]

 54 Exhibit R1, Witness Statement of Ken McGivern, [25] – [26] and PN458

 55   Exhibit R1, Witness Statement of Ken McGivern, [33]

 56   PN446

 57   PN447

 58   PN555 – PN557

 59   PN567

 60   PN570 - PN572

 61   PN578

 62   PN249

 63   Exhibit R2, Witness Statement of Jon Foulston, [41] – [42]

 64   Exhibit R2, Witness Statement of Jon Foulston, [43] – [44]

 65   Exhibit R1, Witness Statement of Ken McGivern, [37]

 66   Exhibit R1, Witness Statement of Ken McGivern, Attachment KM6

 67   Exhibit R2, Witness Statement of Jon Foulston, [48]

 68   Exhibit A2, Applicant’s Outline of argument: merits, filed 13 June 2017, Q4e

 69   PN210 - PN213

 70   Exhibit R1, Witness Statement of Ken McGivern, Attachment KM6

 71   Exhibit R1, Witness Statement of Ken McGivern, Attachment KM8

 72   PN386

 73   PN389

 74   PN396

 75   Exhibit R1, Witness Statement of Ken McGivern, [44] – [47]

 76   Exhibit R1, Witness Statement of Ken McGivern, [56]

 77   Exhibit R1, Witness Statement of Ken McGivern, [97] – [98]

 78   Exhibit A1, Applicant’s Witness Statement in Reply, [61], [62]

 79   PN375 - PN376

 80   PN378

 81   Exhibit A2, Applicant’s Outline of argument: merits, filed 13 June 2017, Q5a

 82   PN346

 83   Exhibit A2, Applicant’s Outline of argument: merits, filed 13 June 2017, Q6a

 84   Exhibit A1, Applicant’s Witness Statement in Reply, [7]

 85   PN413

 86   PN548

 87   PN550

 88   PN412

 89   PN414

 90   Exhibit A1, Applicant’s Witness Statement in Reply, [3]

 91   Exhibit A1, Applicant’s Witness Statement in Reply, [10]

 92   Exhibit A4, Applicant’s document list, filed 13 June 2017, Attachment G

 93   Exhibit A2, Applicant’s Outline of argument: merits, filed 13 June 2017, Q7d

 94   PN218 - PN221

 95 Exhibit R3, Statement of David Hurd, [9] and [14]

 96   PN620 - PN623

 97   Exhibit R3, Statement of David Hurd, [2]

 98   PN659 - PN662

 99   PN654

 100   Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410

 101   Ibid at 465

 102   Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21 (4 June 1931), [(1931) 45 CLR 359 at pp. 373, 377‒378

 103   Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373]; cited in Annetta v Ansett Australia Ltd Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) [10] [(2000) 98 IR 233]

 104   Annetta v Ansett Australia Ltd Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at para. 10, [(2000) 98 IR 233]

 105   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at para. 24

 106   Potter v WorkCover Corporation PR948009 (Ross VP, Williams SDP, Foggo C, 15 June 2004) at para. 67, [(2004) 133 IR 458]

 107   Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at paras 70–73, [(2000) 98 IR 137]

 108   Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)

 109 [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544 (Thatcher C, 5 November 2010) at para. 85, [(2010) 204 IR 399]

 110   Ibid

 111   Ricegrowers Co-operative Limited v Schliebs PR908351 (AIRCFB, Duncan SDP, Cartwright SDP, Larkin C, 31 August 2001) at para. 26; citing Byrne v Australian Airlines Ltd [1995] HCA 24 (11 October 1995), [(1995) 185 CLR 410]; Gasz v Mobil Refinery Australia Pty Ltd PR960826 (AIRCFB, Watson SDP, Hamilton DP, Lewin C, 1 August 2005) at para. 17; Ashley v Statewide Autistic Services Inc PR959835 (AIRCFB, Ross VP, O’Callaghan SDP, Cribb C, 7 July 2005), at para.110

 112   PN219

 113   Exhibit A2, Applicant’s Outline of argument: merits, filed 13 June 2017, Q7d

 114   Streeter v Telstra Corporation Limited [2008] AIRCFB 15 (Acton SDP, Cartwright SDP, Larkin C, 24 January 2008) at para. 25, [(2008) 170 IR 1]; Cunningham v Australian Bureau of Statistics (2005) 148 IR 20; Gasz v Mobil Refinery Australia Pty Ltd PR960826 (AIRCFB, Watson SDP, Hamilton DP, Lewin C, 1 August 2005) at para. 17

 115   Potter v WorkCover Corporation PR948009 (Ross VP, Williams SDP, Foggo C, 15 June 2004) at para. 55, [(2004) 133 IR 458]

 116   Potter v WorkCover Corporation PR948009 (Ross VP, Williams SDP, Foggo C, 15 June 2004) at para. 55, [(2004) 133 IR 458]. See also Annetta v Ansett Australia Ltd Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at para. 10, [(2000) 98 IR 233]

 117   PN723

 118  Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033

 119   [2015] FWCFB 1033, [34]

 120   Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 at para. 264

 121   Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 at para. 263

 122   Exhibit R1, Witness Statement of Ken McGivern, [45]

 123   Respondent’s Outline of arguments: merits, filed 4 July 2017, Q6

 124   Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; cited in Nguyen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354 (Bissett C, 3 June 2011) at para. 24; Note: Perkins was decided under legislation with different wording to the current wording, using ‘impracticable’ rather than ‘inappropriate’. The Full Bench in Australia Meat Holdings Pty Ltd v McLauchlan Print Q1625 (AIRCFB, Ross VP, Polites SDP, Hoffman C, 5 June 1998), [(1998) 84 IR 1 at p. 18], found that the observations in Perkins were still relevant to the question of whether reinstatement was inappropriate.

 125   Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; cited in Nguyen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354 (Bissett C, 3 June 2011) at para. 40

 126   Ibid

 127   Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186, 191

 128   Ibid

 129   Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 (Ross J, Gostencnik DP, Wilson C, 21 October 2014) at para. 27; citing Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186, 191

 130   Australia Meat Holdings Pty Ltd v McLauchlan Print Q1625 (AIRCFB, Ross VP, Polites SDP, Hoffman C, 5 June 1998), [(1998) 84 IR 1 at p. 17]

 131   Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 (Ross J, Gostencnik DP, Wilson C, 21 October 2014) at para. 28

 132   PN732 - PN733

 133   Respondent’s Outline of arguments: merits, filed 4 July 2017, Q6

 134   Exhibit R1, Witness Statement of Ken McGivern, Attachment, KM5

 135   Exhibit A1, Applicant’s Witness Statement in Reply, [8] – [10]

 136   Respondent’s Outline of arguments: merits, filed 4 July 2017, Q6

 137   Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 [15]

 138   PN734

 139   Kenley v JB Hi Fi (unreported, AIRCFB, Ross VP, Watson SDP, Holmes C, 22 June 2000) Print S7235 at para. 27

 140   Ibid

 141   Ibid at [34]

 142   Exhibit A2, Applicant’s Outline of argument: merits, filed 13 June 2017, Q2

 143   Kenley v JB Hi Fi (unreported, AIRCFB, Ross VP, Watson SDP, Holmes C, 22 June 2000) Print S7235 at para. 36

 144   Ibid

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