Thien Huy Xuan Dang v Coca-Cola Europacific Partners Australia Pty Ltd
[2023] FWC 2097
•22 AUGUST 2023
| [2023] FWC 2097 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Thien Huy Xuan Dang
v
Coca-Cola Europacific Partners Australia Pty Ltd
(U2023/1175)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 22 AUGUST 2023 |
Application for an unfair dismissal remedy – valid reason for dismissal – Applicant’s dismissal not harsh, unjust and unreasonable – application dismissed
Introduction
Mr Thien Huy Xuan Dang (Applicant) has filed an unfair dismissal application (Application) with the Fair Work Commission (Commission) alleging that he was unfairly dismissed (within the meaning of s.385 of the Fair Work Act 2009 (Act)) by his former employer, Coca-Cola Europacific Partners Australia Pty Ltd (Respondent).
The Respondent says that the Applicant was dismissed, after a long history of unacceptable conduct, for misconduct and breach of company policies, and otherwise denies that the Applicant was unfairly dismissed.
At the hearing, the Applicant appeared for himself, and Ms Felicity Edwards, Partner, Sparke Helmore Lawyers, appeared with permission for the Respondent.[1]
Factual findings
The Applicant was employed by the Respondent as Regional Technician since October 2016. The Applicant’s job required him to use a vehicle of the Respondent to attend to the installation, servicing, quality control and maintenance of the Respondent’s machinery within the southern region of New South Wales. This necessitated the Applicant driving thousands of kilometres for work each month to attend upon customer premises.
The Respondent has undertaken a number of measures to introduce systems, policies and procedures to attempt to eliminate speeding and have employees (such as the Applicant) who drive company vehicles adopt safe driving practices. This approach is not only necessitated by work, health and safety laws, but is common sense.
Mr Jared Cannon, District Service Manager, Southern Region NSW, who manages the Respondent’s Southern Region Services Team (SRS Team), had direct managerial supervision of the Applicant (and 14 other employees in the SRS Team). He gave the following unchallenged evidence as to the Respondent’s systems, policies and procedures around employee driving:
“8. Between late 2020 and early 2021, CCEP [the Respondent] started to roll out new policies, procedures and systems reflecting an increased focus on safe driving practices, including the elimination of speeding.
9. As a leader, I received some communications from our safety team in about September or October 2020 about the new approach CCEP (then known as Coca-Cola Amatil) would be taking and that a new speed monitoring system would be introduced. This system was, and is, known as ‘LogBookme’.
10. In November 2020, this new program started to be shared more broadly with staff. On 16 November 2020, all drivers who had what is called a ‘tool of trade vehicle’ (including Mr Dang [the Applicant]) received an email outlining:
a. the new monitoring system that would be implemented for speeding;
b. the notifications employees would receive if they were identified as speeding; and
c. how employees could dispute speeding notifications if there was an error.
11. The email also annexed an FAQ document explaining how to query any speed notifications if errors arose. A copy of the email is annexed and marked as Annexure JC03 to this statement. A copy of the FAQ document attached to the email is annexed and marked Annexure JC04 to this statement.
12. On 12 February 2021, CCEP’s Australian Managing Director, Peter West, issued an all-staff communication (including to Mr Dang) highlighting the new approach that CCEP was taking towards safe driving and the seriousness with which it would treat speeding events moving forward. A copy of this correspondence is annexed and marked as Annexure JC05 to this statement.
13. Separately, a presentation entitled ‘Drawing a line in the sand regarding speeding’ was issued to all members of my Team, including Mr Dang. A copy of the presentation is annexed and marked as Annexure JC06 to this statement.
14. Also in February 2021, CCEP released a document entitled ‘Managing Driver Behaviour Guidelines’ (Behaviour Guidelines). This document set out the procedures that were to be followed when a driver was involved in a speeding event. A copy of the Behaviour Guidelines are annexed and marked as Annexure JC07 to this statement.
15. In March 2021, CCEP issued a document entitled ‘Safe Driving Guidelines’ (Driving Guidelines). The Driving Guidelines imposed safety related requirements on employees driving for work purposes. A copy of the Driving Guidelines are annexed and marked as Annexure JC08 to this statement.
16. The Behaviour and Driving Guidelines operated (and continue to operate) alongside the CCEP ‘Tool of Trade Vehicle Policy’ (Vehicle Policy) which governs the use of company supplied vehicles. A copy of the Vehicle Policy is annexed and marked as Annexure JC09 tot his statement.
17. Driving behaviour is also governed by CCEP’s Code of Conduct which, amongst other things, requires employees to comply with all relevant laws (including road rules and work health and safety laws). A copy of the Code of Conduct is annexed and marked as Annexure JC010 to this statement.”[2]
Between June 2021 and December 2022, the Applicant undertook multiple training modules in respect of safe driving. Mr Cannon’s evidence as to this training is as follows:
“18. Throughout his employment, Mr Dang completed the following training in respect of safe driving:
a. Safe Driving Guidelines Training on 24 June 2021;
b. Amatil Driver Safety training on 2 May 2022 and 16 December 2022;
c. ‘How we will manage driver behaviour’ training on 28 April 2022, 2 May 2022 and 26 December 2022; and
d. Various Alert Driving training between April and December 2022.
A copy of Mr Dang’s training records are annexed and marked Annexure JC11 to this statement. A copy of the Safe Driving Guidelines training is annexed and marked Annexure JC12. A copy of the training modules on driver behaviours and speeding is annexed and marked as Annexure JC13.”[3]
Between March 2021 and December 2022, the Respondent’s LogbookMe speed monitoring system recorded 10 different speeding events involving the Applicant (on 26 March 2021 (10km over speed limit), 13 August 2021 (10km over speed limit), 18 January 2022 (2 events, 10km over and 18km over speed limit), 15 February 2022 (8km over speed limit), 1 March 2022 (15km over speed limit), 11 August 2022 (14km over speed limit), 26 August 2022 (6km over speed limit), 27 October 2022 (15km over speed limit), and 19 December 2022 (2 EVENTS, 9km over speed limit)).[4]
The Applicant was issued with an informal caution on 8 September 2021 regarding recorded speeding events prior to that date.
On 18 February 2022, the Applicant was issued with a first counselling letter in respect of speeding, advising him that if further speeding events occur, formal disciplinary action will be taken against him, including possible termination of employment.
On 29 April 2022, the Applicant was issued with a second counselling letter in respect of speeding.
On 6 October 2022, the Applicant was issued with a letter of allegations in respect of yet further speeding events. After discussion with the Applicant in respect of these allegations, the Applicant was issued with a first warning in relation to speeding.
On 29 November 2022, the Applicant was issued with a letter of allegations in respect of yet further speeding events. After discussion with the Applicant in respect of these allegations, the Applicant was issued with a second warning in relation to speeding.
In relation to the first and second warnings, Mr Cannon gives the following evidence:
“42. On 5 December 2022, as the October Speeding Event was substantiated, I again issued him with a written warning (Second Warning). However, considering Mr Dang’s repeated failure to abide by CCEP’s safe driving protocols, the Second Warning was issued in the ‘strongest possible terms.’ In particular, Mr Dang was advised that given his extensive disciplinary history in respect of speeding events, CCEP had considered whether he should be asked to show cause as to why his employment should not be terminated.
43. Further, to demonstrate the finality and seriousness of the Second Warning, Mr Dang was required to ensure:
a. he did not misuse company assets and drive safely at all times when using CCEP tool of trade vehicle;
b. remain vigilant in checking his speed and use available speed alerts;
c. he re-read the Vehicle Policy by 7 December 2022, and confirmed his understanding of the same by email; and
d. he successfully re-complete the ‘How we will manage Driver Behaviour’ training by 10 December 2022.
A copy of the Second Warning is annexed and marked as Annexure JC26 to this statement.
44. On 8 December 2022, I received an email from Mr Dang confirming he had read and understood the Vehicle Policy. He also undertook the training required. A copy of the correspondence is annexed and marked as Annexure JC27 to this statement.
45. On each occasion when I issued the First Warning and the Second Warning, I advised Mr Dang that further speeding events may result in termination of his employment. Mr Dang confirmed he understood what was being issued to him.
46. Never, during the period from 8 September 2021 until the Second Warning was issued in December 2022, did Mr Dang did raise any concerns with the speedometer in his vehicle and its interaction with the Waze app. In fact, Mr Dang did not deny, and in most cases, accepted that he had engaged in the various speeding events. There was no reason at this stage to believe there were any issues or concerns with CCEP’s speed monitoring systems from Mr Dang’s perspective or otherwise.”[5]
Fourteen days after the second warning was issued to the Applicant, two further speeding events were notified involving the Applicant on 19 December 2022 (both involving the Applicant driving 9km over the speed limit). A letter of allegations was sent to the Applicant regarding these speeding events on 11 January 2023, to which the Applicant responded on 17 January 2023. Mr Cannon gives the following events as to the show cause process and dismissal of the Applicant that thereafter ensued:
“51. On 20 January 2023, having considered Mr Dang’s Response, I issued a show cause letter on behalf of CCEP (Show Cause Letter). The Show Cause Letter notified Mr Dang that the allegations of Misconduct had been substantiated, and accordingly CCEP invited him to show cause as to why his employment should not be terminated. Further, Mr Dang was stood down on 20 January 2023, pending an outcome of the disciplinary process. A copy of the Show Cause letter is annexed and marked as Annexure JC31 to this statement.
52. On 23 January 2023, Mr Dang provided a written response to the Show Cause Letter (Show Cause Response). On the same day, Mr Dang also attended a meeting with David Cremor, District Service Manager, North Region Team, Vicki Bastian, Employee Relations Specialist, and me to provide a verbal response to the Show Cause Letter. Relevantly Mr Dang wrote in respect of the Misconduct:
‘The last speeding event, I am so sorry as my fault on judgement, but I do believe the cruise controller stick may have problems twice I noticed when using it and the Waze app that also failed to sound louder warning on car Bluetooth system.’
53. This was the first time Mr Dang raised concerns about the cruise controller functionality on his vehicle. As mentioned above, the Waze App is not something that is endorsed or otherwise supplied by CCEP.
54. Further, during the Show Cause Meeting, Mr Dang admitted to deliberately speeding by setting his speedometer 5km above the speed limit, stating words to the effect of:
‘I’m pretty sure the sign was 60, and then 80, and I set my speedo to 85 and I just kept going. I had Waze (App) on and it pings if you go over the speed limit and it didn’t ping, and I kept going and was pinged at 89km/h.’
A record of the Show Cause Meeting is annexed and marked as Annexure JC32.
55. On 31 January 2023, having considered Mr Dang’s various responses, together with his disciplinary history, I decided it was appropriate to terminate his employment with CCEP. Whilst I considered all relevant factors in reaching my decision to dismiss Mr Dang (including his personal family circumstances which Mr Dang advised were resolved), Mr Dang’s admission that he was deliberately speeding was a determinative factor in my mind, particularly in light of his extensive disciplinary history, and the fact that he had been put expressly on notice as to the seriousness of his conduct. Nevertheless, Mr Dang chose to set his cruise controller above the sign posted speed limit. As such, I had no confidence in his desire or ability to comply with CCEP’s policies and requirements in respect of speeding. Mr Dang’s repeated misconduct was entirely inconsistent with his ability to remain employed.
56. Mr Dang was paid 5 weeks’ in lieu of notice. A copy of the letter of termination is annexed and marked as Annexure JC33 to this statement.”[6]
The termination letter issued to the Applicant on 31 January 2023 (Termination Letter), setting out the reasons relied upon by the Respondent to dismiss the Applicant, reads:
“Dear Thien
Your Employment with Coca-Cola Europacific Partners
The purpose of this letter is to advise you of the outcome of the recent show cause process, following CCEP’s show cause letter to you dated 20 January 2023 (Show Cause Letter).
On 23 January 2023, you provided a verbal response to the Show Cause Letter (Response). In your Response, you raised the following points for CCEP to consider before making its final decision regarding your employment:
• You are remorseful for the last speeding event;
• You believe the cruise control stick may have problems which you’ve only noticed in the last few days of use (ie: in January 2023);
• You disclosed that you received a discount on your license renewal with ServiceNSW as a result of having a good driving record;
• You committed to setting up a new speedometer Head Up Display on the van together with the Waze app to prevent a future speeding event;
• You advised that you had personal problems relating to family stresses, which have now been resolved;
• You stated “I feel sorry that I did not take the concern of the company regarding the employee welfare, now I can see that the company is really serious concerning employee welfare, I’m really sorry about that. I will never ever do it again, that’s all I can promise”.
CCEP has carefully considered the information available to it, including the responses you provided throughout this process together with the sustained nature of the incidents having regard to your disciplinary history comprising of, 2 written warnings for speeding in October and December 2022, 2 counselling letters in February and April 2022 that were issued also for speeding, in addition to an email and conversation with your leader in August 2021 for the same reasons. At the time of each disciplinary outcome, you were reminded of CCEP’s expectations and your obligations, and were also directed to complete the “How we will manage driver behaviour training” in December 2022. You were also put on notice of the consequences in the event you continued to behave or conduct yourself in a manner that fell below the standards required of CCEP policies and procedures.
It is clear that CCEP has afforded you with numerous opportunities to demonstrate conduct in line with your employment contract dated 12th October 2023, the Code of Conduct, Tool of Trade Vehicle Policy, Managing Driver Behaviour Guidelines, and the Health & Safety requirements. Unfortunately, notwithstanding those opportunities, you have failed to conduct yourself in a manner that is consistent with your employment contract and CCEP’s policies and procedures. In fact, in your Response, you admitted to deliberately setting your ‘speedo’ 5km\h above the speed limit, stating “I’m pretty sure the sign was 60 and then 80 and I set my speedo to 85 and I just keep going. I had waze (App) on and it pings if you go over the speed limit and it didn’t ping and I kept going and was pinged at 89kmph.” The deliberate and conscious decision to go above the limit coupled with then exceeding that further, is plainly reckless and not acceptable. The misuse of a company asset has resulted in you not only compromising your own safety, but also the safety of others including the public, on several occasions.
In light of this, CCEP has made the decision to terminate your employment, effective immediately, meaning your last day of employment is today 31 January 2023. You will be paid in lieu of working through your notice period of 5 weeks and will also receive any payable entitlements such as untaken leave and any outstanding pay, up to and including your last day of employment.
You are required to return all CCEP property by no later than your last day of employment or as soon as is practicable thereafter or as otherwise instructed by CCEP. Please note that IT assets (such as phones and computers) must not have any information deleted or removed. In circumstances where you have come into contact with any other CCEP property (including digital and physical documentation) you must contact CCEP who will advise of how to either return or destroy it.
You are also reminded of your ongoing, post-employment obligations in your employment contract (and in common-law and in equity) regarding confidentiality and non-solicitation, which CCEP expects you to adhere to.
Thien, we appreciate that receiving this letter may be difficult. I’d like to remind you of our EAP service, Workplace Options, which can be contacted on 1800 730 931 and again suggest that you consider utilising this free and independent service for your wellbeing. This service will be available to you for the month following your termination of employment.
If you have any questions or concerns about this letter, please contact me. I would like to thank you for your time at CCEP and wish you the best for the future.
Yours sincerely,
Jared Cannon
District Service Manager”[7]
Relevant law regarding unfair dismissal
Section 385 of the Act qualifies a claim for 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.”
The parties are not in dispute as to the following:
(a)The unfair dismissal application was made within the period required by s.394(2) of the Act.
(b)The Applicant is a person protected from unfair dismissal within the meaning of s.382 of the Act.
(c)The Applicant was “dismissed” by the Respondent within the meaning of s.386 of the Act.
(d)The Small Business Fair Dismissal Code (as provided for in s.388 of the Act) does not apply.
(e)The Applicant’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.
I accept and make findings consistent with the foregoing position of the parties.
Whether the Applicant’s dismissal was harsh, unjust, and/or unreasonable
Section 387 of the Act provides what matters must be taken into account by the Commission in determining whether a dismissal was harsh, unjust or unreasonable.
“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 terms “harsh”, unjust” and “unreasonable” are to be given their ordinary meaning.
An Applicant (employee) carries the onus to prove that his or her dismissal was unfair.
It is well settled that a statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give a matter(s) weight as a fundamental element in the decision-making process. However, as Kitto J noted in Rathborne v Abel[8]:
“Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v. Ward [1961] VR 632, at 634.”[9]
(my emphasis)
s.387(a) — Whether there was a valid reason for the Applicant’s dismissal which is related to her capacity or conduct
An employer bears the persuasive onus of establishing or proving that there was a valid reason for an employee’s dismissal.[10] The level of proof is on the balance of probabilities, at a reasonable level of satisfaction.[11] The fact that serious allegations are made does not alter the position in civil proceedings that the level of proof is based upon the balance of probabilities.[12]
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”.[13] Further, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[14]
Where a dismissal relates to conduct, the reason for the dismissal may be valid because the conduct occurred and justified dismissal. However, the reason may not be valid because the conduct did not occur, or it did occur but did not justify dismissal.[15] The question of whether the alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it.[16]
The onus of proof in relation to misconduct rests with an employer, and the standard of proof in respect of such misconduct is based upon the balance of probabilities.[17]
Where a dismissal relates to capacity (i.e. where the reason is associated or connected with the ability of the employee to do the job),[18] and there is a dispute as to an employee’s requisite capacity, it is for the Commission to resolve that dispute as a matter of fact.[19]
The Respondent relies upon the reasons set out in the Termination Letter as constituting a valid reason for the Applicant’s dismissal.[20]
The Applicant (relevantly)[21] says that the following matters ought give rise to a finding that there was no valid reason for his dismissal:
a) the Respondent refused to purchase him a market-available GPS navigation system to put in his work vehicle so as to warn him about changes to road conditions and regulations;
b) the speedometer on the Applicant’s work vehicle (or van) always displayed 4km more (or faster) than the speed that was being reflected on the Applicant Waze mobile telephone application. The Respondent refused to have the speedometer and cruise control checked on the Applicant’s work vehicle so as to have this fault confirmed;
c) the LogbookMe speed monitoring system is inaccurate. An example in this regard is the speeding event recorded on 12 January 2023 in respect of the Applicant. This speeding event was subsequently withdrawn by LogbookMe due to an acknowledged error; and
d) the training and learning modules that the Applicant undertook were not real life scenarios, and were hard to apply in practice.[22]
The Respondent made the following written submissions as to valid reason:
“34. The Respondent’s direction to the Applicant to follow the road rules and to drive safely were, plainly, a lawful and reasonable direction. Relevantly, regulation 1.07(3)(c) of the Regulations, defines conduct involving an employee refusing to carry out a lawful and reasonable instruction as ‘serious misconduct’. It is without doubt that the Commission has repeatedly held that a failure to follow such a direction can give rise to a valid reason for dismissal.
35. Inherently dangerous workplaces have been cited by the Full Bench of the Commission in Metro Quarry Group as being a relevant consideration in determining the underpinning notion of “a fair go all round” in unfair dismissal cases:
‘The criteria for assessing fairness, although not exhaustive, are clearly intended by the legislature to guide the decision as to the overall finding of fairness of the dismissal and are essential to the notion of ensuring that there is “a fair go all round”. This is particularly important in relation to safety issues because the employer has obligations to ensure the safety of its employees, and commitment and adherence to safety standards is an essential obligation of employees - especially in inherently dangerous workplaces. The notion of a fair go all round in relation to safety breaches of safety procedures needs to consider the employer’s obligations and the need to enforce safety standards to ensure safe work practices are applied generally at the workplace.’
36. Safety breaches, where the employee fails to adhere to an employer’s standards after reasonable training, have been found to be more serious. In Hanley, Senior Deputy President Richards found that the employee had contributed to an unsafe workplace and placed a person at imminent risk and held that:
‘A failure by an employee to give effect to safety training instances invokes, as in this case, a valid reason under s.387 of the Act. An employee who after reasonable training does not adopt the behavioural cues necessary to achieve an employer’s reasonable safety expectations in a dangerous workplace, is a risk to him or herself, to others, and has acted to cause a loss of trust in the employment relationship.’
37. A failure to safely operate a motor vehicle has repeatedly been found to be a valid reason for termination of employment:
(a) In Folwell, the “repeated misconduct” – namely 3 instances of speeding – resulted in the claim being dismissed;
(b) In Hamlin the NSW IRC held that, despite a long tenure and the demonstration of remorse by the employee, the need to protect the interests of the community and the ability of the employer to trust an employee to follow safety directions were paramount in that case; and
(c) In Harvey it was found that the employee should have been “hyper-vigilant” about following policy given the many previous policy breaches.
38. Safe driving was a critical part of the Role and included the very obvious requirement not to speed. Between late 2020 and early 2021, the Respondent had a sharpened focus on speeding. As part of this, it implemented a new driver safety monitoring system known as LogBookme, and also introduced the Behaviour Guidelines and the Driving Guidelines. This new system and focus were communicated to staff in late 2020 and supported by an email from the Respondent’s Managing Director on 12 February 2021 that, amongst other things, communicated to staff that the Respondent was “drawing a line in the sand” in respect of speeding.
39. The Applicant was dismissed for multiple speeding events on 19 December 2022 and, in particular, his blatant and purposeful safety breach (Misconduct), in contravention of the Respondent’s lawful and reasonable directions, arising from the previous informal and formal disciplinary outcomes, together with the Respondent’s Behaviour Guidelines, Driving Guidelines, Vehicle Policy, the Health & Safety Policy and Code of Conduct.
40. The Misconduct occurred in circumstances where the Applicant had received multiple informal and formal warnings in respect of speeding (as outlined above), was clearly on notice that any further speeding events would likely result in dismissal (which the Applicant acknowledged) and was aware of his obligations in respect of safe driving (including the requirement not to speed).
41. The current proceedings are on all fours with the matter of Meijer v Coca-Cola Europacific Partners [2022] FWC 1286 (Meijer) which involved the dismissal of a former employee engaged by the Respondent, Ms Meijer, for speeding. In Meijer, Deputy President Masson found there was a valid reason for dismissal and relevantly stated:
‘The Applicant was aware of her obligations under the Guidelines and Tool of Trade Policy and acknowledged the repeated warnings she received…It follows from the Applicant’s conduct of repeatedly breaching the Guidelines, Tool of Trade Policy and Code of Conduct founds a valid reason for dismissal.’
42. Relevantly, the Behaviour Guidelines and the Driver Guidelines provided:
‘There is no such thing as safe speeding…Repeat offenders should expect to go through disciplinary processes…investigation may lead to disciplinary processes with outcomes up to (and including) termination; and
Speeding increases the likelihood of crashing and the severity of a crash because it reduces the time a driver has to respond to avoid a collision. It affects a driver’s ability to control the vehicle and takes a longer distance to stop the vehicle. Amatil has strict standards for Serious Driving Events when at work or in Tool of Trade Vehicles at all times. Drivers are required by law and policy to travel at or under the sign posted limit.’
43. The Behaviour Guidelines and the Driving Guidelines operated alongside the Respondent’s ‘Tool of Trade Vehicle Policy’ (Vehicle Policy) which governs the use of company supplied vehicles, such as that supplied to the Applicant. Relevantly, the Vehicle Policy provides that, by accepting a tool of trade vehicle, an employee acknowledges:
(a) they must adhere to the relevant road and licensing rules within the state in which they are driving; and
(b) breaches of this Policy may result in disciplinary consequences up to and including the termination of employment.
44. Driving behaviour is also governed by the Respondent’s Code of Conduct which, amongst other things, requires employees to comply with all relevant laws (including road rules and work health and safety laws). The Code of Conduct also provides ‘we ensure our vehicles are safe to drive, regularly maintained and that we respect the rules of the road’.
45. The Applicant was trained in and understood the Behaviour Guidelines, Driving Guidelines, Code of Conduct, Health and Safety Policy and the Vehicle Policy. Most relevantly, as recently as 11 days prior to the Misconduct, the Applicant confirmed he had read and understood the Respondent’s Vehicle Policy which expressly provided that breaches may result in disciplinary action, up to and including, termination of employment.
46. Given the abovementioned policies and training undertaken by the Applicant, there was no doubt that the Applicant was aware of his obligations in respect of safe driving, including that he was expected not to speed, and he was undoubtedly on notice that any further speeding events would lead to dismissal. This is also reinforced by the various apologies and assurances that the Applicant gave in respect of his repeated speeding events since 2021. For example, in response to the allegations that resulted in the Second Warning, the Applicant accepted that he needed to improve, conceding in his response:
‘I confirm that was unacceptable driving over the speed limit that I am hereby very sorry about it. I will try my best again to look for speed sign post.’
47. Notwithstanding this, the Applicant engaged in the Misconduct which ultimately led to his dismissal, a mere 14 days after he received the Second Warning which was issued in the ‘strongest possible terms’:
‘Thien, as has hopefully been made clear throughout this process, the issues raised are of particularly serious concern to the business. The business was considering whether you should be asked to show cause as to why the termination of your employment was not the most appropriate outcome, and this warning is provided to you in the strongest possible terms.’
48. Furthermore, and most concerningly, during the Show Cause meeting (following which the decision was made to dismiss the Applicant), the Applicant admitted to deliberately speeding as he indicated that he had consciously set his cruise control above the sign posted speed limit. This occurred in circumstances where:
(a) The Applicant had an abysmal record of over 10 speeding events in less than two years prior to his dismissal.
(b) The Respondent had an extensive policy framework for safe driving which the Applicant was aware of and had been trained in (including just a short time prior to the Misconduct).
(c) The Applicant had offered the Respondent assurances in respect of his driving.
(d) The Applicant had been issued with a final warning and was on notice that any further speeding events would result in dismissal.
49. The Applicant’s ongoing, repeated and deliberate failure to abide by the Respondent’s Driving Guidelines, Behaviour Guidelines, Vehicle Policy, Health and Safety Policy and Code of Conduct rightfully eroded the Respondent’s confidence in the Applicant’s ability to safely perform his Role. The Respondent’s various policies and training in respect of speeding, serves to ensure not only the safety of employees, such as the Applicant who was required to safely operate the Respondent’s vehicles as an inherent requirement of his role, but also to ensure the safety of other road users.
50. The Respondent submits that following various informal cautions, two counselling letters, two written warnings and ongoing training, within the span of less than two years, there is nothing further that could have been done to support the Applicant to cease engaging in speeding events.
51. Ultimately, the Applicant’s repeated and unsafe misuse of his tool of trade vehicle strikes at the core of the relationship of mutual trust and confidence which is required to sustain an employment relationship. In circumstances where the Role necessarily required the Applicant to engage in extensive driving, it is reasonable that the Respondent lost confidence in his ability to safely do so. In all the circumstances, dismissal was the only available disciplinary outcome in respect of the Misconduct.
52. The Commission has been clear that safety breaches are a valid reason for termination. The Respondent’s processes – through education, informal counselling, formal disciplinary and finally show cause – gave the Applicant more than a reasonable opportunity to correct his behaviour and to respond when issues were raised. There can be no doubt that the Applicant was aware of the expectations to drive within the confines of the law, that the Respondent considered that speeding was unsafe, and that termination for this sort of conduct was a possible outcome. The Applicant freely admitted to speeding conduct – setting his cruise-control above the legal limit. This irreparably injured the Respondent’s ability to trust that the Applicant would or could conduct himself safely in the future. As such, the Respondent submits that the reason for the dismissal was sound, defensible and well-founded.
Applicant’s challenge to Speeding Events
53. To the extent that the Applicant seeks to undermine the validity of the reason for dismissal by way of challenging the accuracy of the Respondent’s speed monitoring tools, such a submission takes the Applicant’s case no further for the following reasons:
(a) ‘LogBookMe’ requires a minimum of 5 satellites to track a vehicle for a speeding event to be formally recorded;
(b) ‘LogbookMe’ updates their internal database of sign-posted speed signs on a weekly basis;
(c) The Applicant was aware of the process to formally challenge a speeding event, however, did not so in respect of the Misconduct, nor in respect of any other speeding events which formed his Disciplinary History; and
(d) The Applicant had never previously raised an issue with his vehicle, which:
a. had been maintained as recently as 11 November 2022 and tested;
b. driven by Mr Cannon following the Applicant’s dismissal without issue; and
c. driven by at least two of the Respondent’s technicians for a period of five weeks without any speeding events being recorded.
54. Further, the Commission has previously found that LogBookMe has been appropriately used by CCEP. Despite challenges to its accuracy, CCEP has defensibly engaged in disciplinary action against its employees by relying on LogBookMe data.
55. The Respondent therefore submits that the Commission can be reasonably satisfied that the Respondent’s speeding monitoring systems accurately captured the Misconduct and the Applicant’s speeding record.”[23]
…
“66. The Respondent submits the Applicant was adequately supported to eliminate his recalcitrant speeding through:
(a) ongoing access to training and policy materials in relation to speeding and use of the Respondent’s vehicles, including as recently as 8 December 2022;
(b) access to mechanisms to challenge recorded speeding events which he believed were incorrect; and
(c) clear and unambiguous expectations regarding the consequences of ongoing speeding, including as recently as 5 December 2022.
67. To the extent that the Applicant asserts that he requested further assistance from the Respondent in relation to his speeding by way of a GPS Navigation system, the Respondent submits that adequate and accurate speed monitoring tools were already fitted to the Respondent’s vehicles, and it was otherwise available to the Applicant to utilise personal speed monitoring tools if he so wished.”[24]
Having regard to the evidence and submissions of the parties, I make the following findings:
a) the Respondent’s direction for the Applicant to abide by and follow road rules and regulations, including as to maintaining the legal speed limit whilst driving, was a reasonable and lawful direction. It was lawful in the sense that it did no more than require observance of legislated road rules and regulations that apply to all road users, and was set out in company policies and procedures (which have not been challenged in these proceedings as to their validity).[25] It was reasonable in the sense that it was underpinned by multiple training / learning modules (delivered by the Respondent to relevant employees, including the Applicant) in respect of safe driving;
b) the Applicant was well aware of his obligations to abide by and follow road rules and regulations, and was on notice prior to his dismissal that a failure to do so would result in disciplinary action being taken against him (up to and including the termination of his employment);[26]
c) the evidence before me does not disclose any systemic or otherwise identifiable problems with the LogbookMe speed monitoring system used by the Respondent. Further, one is able to challenge a speeding event recorded by LogbookMe with the LogbookMe Support Team, who has the ability to correct or remove the speeding event. The fact that the Applicant successfully challenged his speeding event on 12 January 2023,[27] resulting in it being reversed, shows system integrity, not disfunction. It highlights that whilst the LogbookMe system may not be infallible, it contains its own checks and balances as to results recorded. There is no suggestion that the Applicant was not in a position to challenge any of the speeding events that were recorded against him (or was otherwise unaware of his ability to make such challenges);
d) the evidence before me does not support a conclusion that speedometer or cruise control on the Applicant’s work van is faulty. The Applicant’s assertion in this regard is advanced by purportedly comparing the speed reading emanating from the Applicant’s Waze mobile telephone application, to the speedometer reading on Applicant’s work van. Beyond the Applicant’s assertions in his evidence in this regard, there is no objective evidence before me to support a finding as to a faulty speedometer or cruise control system in his work van.[28] Importantly, the Applicant has not established in his evidence that the Waze mobile telephone application is the standard by which the speedometer reading or cruise control system on his work van ought be measured from an accuracy perspective;
e) the evidence before me does not support a conclusion that the Respondent purchasing the Applicant a market-available GPS navigation system for his work vehicle (so as to apparently warn the Applicant about changes to road conditions and regulations), would have resulted in the Applicant not engaging in the speeding events that have been recorded against him; and
f) the Applicant’s contention that the Respondent’s safe driver or driving training and learning modules do not reflect real life scenarios and/or were hard to apply in practice essentially asserts that the Applicant was unable to comprehend, follow, or apply a requirement to simply obey the speed limit. It is a contention without substance, and must be rejected.
All in all, I find that on the evidence before me, the reasons relied upon by the Respondent in the Termination Letter are sound, defensible and well founded, and thus constitute a valid reason for the Applicant’s dismissal. In my view, the presence of a valid reason in this case, and the nature of that valid reason (being a safety issue), weighs strongly towards a finding that the Applicant’s dismissal was not harsh, unjust and unreasonable.
s.387(b) - Whether the Applicant was notified of the valid reason; and s.387(c) - Whether the Applicant was given an opportunity to respond to any reason related to her capacity or conduct
Proper consideration of s.387(b) of the Act requires a finding to be made as to whether the Applicant “was notified of that reason” and given an opportunity to respond to same.
Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a) of the Act.[29] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, and in explicit, plain and clear terms.[30]
In order to be given an opportunity to respond for the purposes of s.387(c), the employee must be made aware of allegations concerning the employee’s conduct so as to enable them to respond to the allegations and must be given an opportunity to defend themselves. As Justice Moore has stated in Wadey v YMCA Canberra[31]:
“the 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… does not constitute an opportunity to defend.”[32]
The opportunity to respond does not require formality and the factor is to be applied in a common-sense way to ensure the employee is treated fairly[33]. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to the concern, this is enough to satisfy the requirements.[34]
The Applicant was notified of the asserted reason/s for his dismissal in plain and clear terms prior to his dismissal, and given an opportunity to respond to same.[35] I consider the criterion under ss.387(b) and (c) of the Act to be neutral considerations in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.
s.387(d) — Whether there was any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to their dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation upon an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[36]
The evidence does not disclose any refusal, or unreasonable refusal, by the Respondent for the Applicant to have a support person present during discussions relating to his dismissal. I therefore consider this criterion to be a neutral consideration in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.
s.387(e) — Whether the Applicant was warned about that unsatisfactory performance before her dismissal
A warning for the purposes of s.387(e) of the Act must clearly identify:
· the areas of deficiency in the employee’s performance;
· the assistance or training that might be provided;
· the standards required; and
· a reasonable timeframe within which the employee is required to meet such standards.[37]
In addition, the warning must “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”[38] In order to constitute a warning for the purposes of s.387(e), it is not sufficient for the employer merely to exhort their employee to improve their performance.[39]
As the Applicant’s dismissal did not relate to unsatisfactory performance (i.e. it concerned his driving ‘conduct’), this factor is not relevant to the present circumstances. That said, the Applicant was clearly on notice, pursuant to the informal caution, the two counselling sessions, and the two warnings that were issued to him, that his conduct, if repeated, would lead to his dismissal.[40]
The degree to which the size of the Respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal (s.387(f)); and 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))
The Respondent employs dedicated human resources management specialists.
There is no evidence to suggest that the (large) size of the Respondent’s enterprise likely impacted upon the procedures it followed in effecting the Applicant’s dismissal.
Neither party put forward substantive or relevant submissions that go directly to either of the criterion under ss.387(f) and (g) of the Act. I treat both of these criterion as neutral considerations in this case.
s.387(h) - Any other matters that the Commission considers relevant
The Applicant is 60 years of age, and at the time of his dismissal he had worked at the Respondent for more than 6 years. He raises the additional or other matters that follow in support of his contention that his dismissal was unfair
The Applicant’s evidence is that as far as he is aware, the first time he was notified that concerns were had by the Respondent as to his speeding was when the 5 December 2022 warning letter was issued to him. I am unable to accept this evidence from the Applicant. It is contrary to the largely unchallenged evidence of Mr Cannon,[41] and the answers provided by the Applicant himself during cross-examination.[42]
The Applicant has always accepted that speeding is wrong. To the extent that he may have been speeding, the Applicant says that such speeding occurred because he did not see a speeding signpost, or because he had to take a different and unfamiliar route to a customer (e.g. because of road flooding). In my view, the regularity of the speeding events engaged in by the Applicant cannot be explained away by these generalised assertions of the Applicant.
The Applicant points out that he has not received any speeding or infringement notices by the police or other regulatory authorities in the last 10 years, and that he obtained a 50 percent discount on his license renewal based upon his good driving record. Even accepting this evidence, the test for safe driving in the Respondent’s workplace is not based upon whether a driver has been caught unlawfully speeding by law enforcement.
The Applicant says that the Respondent has failed to follow the requirements of Clause 18 (Performance Management Process) of the Coca Cola Europacific Partners Equipment Field Service (NSW) Enterprise Agreement 2021-2024 (Agreement) in effecting his dismissal.[43] Having considered the terms of Clause 18 of the Agreement, I do not accept this contention by the Applicant. In my view, the actions or conduct of the Respondent in dealing with the Applicant’s speeding events do not disclose any non-compliance with clause 18 of the Agreement.[44]
The Applicant made submissions that the case of Susanna Jean Meijer v Coca Cola Euro Pacific Partners[45] (Meijer Case) supports his position that his dismissal was unfair. In this regard, the Applicant submits that the applicant in the Meijer Case was found to have engaged in 52 speeding events over an 18 month period, whereas he has only engaged in 11 speeding events over a 22 month period. The Respondent submits that the decision in the Meijer Case, including its outcome (that Ms Meijer’s dismissal was not unfair), is essentially indistinguishable from these proceedings[46] in that Ms Meijer (like the Applicant):
a) was aware of the Respondent’s policies and procedures concerning safe driving;
b) was on notice about her poor record of speeding;
c) received relevant training; and
d) despite (a) to (c) above, was the subject of frequent and repeated speeding events that ultimately led to her dismissal.
I concur with the Respondent’s submissions in respect of the Meijer Case. Comparisons between these proceedings and the Meijer Case do not give rise to specific point/s of difference between the facts in these proceedings, and those of the Meijer Case, such that the Applicant’s dismissal might be said to weigh in favour of a finding that it was harsh, unjust or unreasonable.
In my view, none of the additional or other matters raised by Applicant in these proceedings weigh in favour of a finding that the Applicant’s dismissal by the Respondent was harsh, unjust and unreasonable. I treat such matters as neutral considerations.
Was the Applicant’s dismissal unfair?
I have made findings in relation to each of the criterion specified under s.387 of the Act (as relevant). I have also considered and given due weight to each of the criterion as a fundamental element in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.[47]
In relation to the criterion set out under s.387 of the Act, I have found that:
(a)one criterion (valid reason) weighs in favour of a finding that the Applicant’s dismissal was harsh, unjust and unreasonable; and
(b)of the remaining criterion, one is not a relevant, and the rest are neutral considerations.
In view of the findings and conclusions set out in this decision, I find that the Applicant’s dismissal was not harsh, unjust and unreasonable (i.e. unfair).
Conclusion
Section 381(2) of the Act is a significant overarching Object of Part 3-2 of the Act. It is expressed as follows:
“381 Object of this Part
(1)The object of this Part is:
(a)to establish a framework for dealing with unfair dismissal that balances:
(i)the needs of business (including small business); and
(ii)the needs of employees; and
(b)to establish procedures for dealing with unfair dismissal that:
(i)are quick, flexible and informal; and
(ii)address the needs of employers and employees; and
(c)to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2)The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”
In my judgment, the outcome in this case is consistent with the object of Part 3-2 of the Act of providing a ‘fair go all round’ to both the Applicant and the Respondent.
Given that I have found that the Applicant was not unfairly dismissed, it is necessary that I dismiss his Application. An Order will be issued separately dismissing the Application.
DEPUTY PRESIDENT
Mr Thien Huy Xuan Dang (Applicant), appeared on his own behalf.
Ms Felicity Edwards, Partner, Sparke Helmore Lawyers, appeared with permission for the Respondent.
[1] See Respondent’s submissions as to permission to appear dated 28 April 2023. Permission was granted to the Respondent to be legally represented by way of email from Chambers dated 17 May 2023 to Ms Justine Amin, Associate, Sparke Helmore Lawyers.
[2] Statement of Jared Cannon, 5 May 2023, at [8]-[17]. See also at [19]-[22].
[3] Ibid, at [18].
[4] Ibid, at [24]-[48].
[5] Ibid, at [42]-[46].
[6] Ibid, at [51]-[56].
[7] Ibid, Annexure “JC33”.
[8] (1964) 38 ALJR 293.
[9] Ibid, at 301.
[10] Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, at 412; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, at 204.
[11] Briginshaw v Briginshaw (1938) 60 CLR 336, at 361-362 (per Dixon J); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, at 170-171 (per Mason CJ, Brennan, Deane and Gaudron JJ).
[12] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, at 170-171 (per Mason CJ, Brennan, Deane and Gaudron JJ).
[13] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (2000) IR 371, at 373.
[14] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, at 685.
[15] Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836, at [7]; Gelagotis v Esso Australia Pty Ltd[2018] FWCFB 6092, at [117]; Titan Plant Hire Pty Ltd v Van Malsen[2016] FWCFB 5520, 263 IR 1, at [28].
[16] King v Freshmore (Vic) Pty Ltd[2000] AIRC 1019, Print S4213 , at [23] to [24].
[17] Briginshaw v Briginshaw (1938) 60 CLR 336; Evidence Act 1995 (Cth), s.140.
[18] Crozier v AIRC (2000) 50 AILR 4-488; [2001] FCA 1031, at [14].
[19] See more broadly: Jetstar Airways Ltd v Neeteson-Lemkes[2013] FWCFB 9075; CSL Limited v Chris Papaioannou[2018] FWCFB 1005.
[20] See also, Transcript, PN615-PN618.
[21] I have dealt with various matters not listed here, to which the Applicant relies upon in asserting that his dismissal was harsh, unjust or unreasonable (i.e. unfair), under the heading of this decision: “s.387(h) – Any other matters the Commission considers relevant”.
[22] Email from the Applicant to Chambers, 15 April 2023 (6:16pm); Applicant’s Outline of Arguments: Merits (undated); Applicant’s Statement of Evidence (undated); Applicant’s Document List; Applicant’s Outline of Submissions Reply (undated); Applicant’s Witness Statement Reply (undated); Applicant’s Document List Reply (undated).
[23] Respondent’s Submissions, 10 May 2023, at [34]-[55], footnotes omitted.
[24] Ibid, at [66]-[67], footnotes omitted.
[25] Also note clauses 6, 9, and 10 of the Coca Cola Europacific Partners Equipment Field Service (NSW) Enterprise Agreement 2021-2024.
[26] See, for example, Transcript, PN88, PN94-PN85, PN184, PN193, PN229-PN231, PN284-PN285, PN309-PN318.
[27] Statement of Jared Cannon, 5 May 2023, Annexure “JC-28”.
[28] See also, Transcript, PN642-PN643.
[29] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, at [55]; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.
[30] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998). See also Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), at [41]; Read v Gordon Square Child Care Centre Inc[2013] FWCFB 762 (Acton DP, Deegan C and Gregory C), at [46] to [49]; Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), at [75].
[31] [1996] IRCA 568.
[32] Ibid.
[33] RMIT v Asher (2010) 194 IR 1, 14-15.
[34] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[35] Respondent’s Submissions, 10 May 2023, at [58]-[59].
[36] Explanatory Memorandum, Fair Work Bill 2008, at [1542]; Jurisic v ABB Australia Pty Ltd[2014] FWCFB 5835, at [84].
[37] McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd[2013] FWC 3034, at [32].
[38] Fastidia Pty Ltd v Goodwin, Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), at [43] to [44].
[39] Ibid.
[40] Transcript, PN408.
[41] Statement of Jared Cannon, 5 May 2023, at [24]-[41].
[42] Transcript, PN238, PN250, PN256, PN258, PN268-PN272, PN293-PN298, PN305, PN342, and PN348-PN353.
[43] Email from the Applicant to Chambers, 15 April 2023 (6:16pm); Applicant’s Outline of Arguments: Merits (undated); Applicant’s Statement of Evidence (undated); Applicant’s Document List; Applicant’s Outline of Submissions Reply (undated); Applicant’s Witness Statement Reply (undated); Applicant’s Document List Reply (undated). Transcript, PN608.
[44] Transcript, PN645-PN646.
[45] [2022] FWC 1286.
[46] Transcript, PN649.
[47] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), at [92]; Edwards v Justice Giudice [1999] FCA 1836, at [6] to [7].
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