Vixon Kumar v Star Track Express Pty Limited

[2025] FWC 2719

[2025] FWC 2719

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Vixon Kumar
v

Star Track Express Pty Limited

(U2025/1699)

DEPUTY PRESIDENT BOYCE SYDNEY, 29 SEPTEMBER 2025

Application for an unfair dismissal remedy – whether valid reasons for dismissal – allegations as to conduct – serious safety breach – Applicant’s responses to allegations made against him inconsistent with evidence (including video evidence) – Applicant’s misconduct proven – Applicant’s contentions as to targeting and differential treatment because of union membership and involvement in union activities (as a union delegate) rejected – Applicant’s contentions as to targeting by his supervisor and differential treatment rejected – no reverse onus in unfair dismissal proceedings – no concerns as to procedural fairness in effecting dismissal – no countervailing factors – dismissal not unfair – application dismissed

1. Mr Vixon Kumar (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 employer, Star Track Express Pty Limited (Respondent).

1. The Respondent denies that it unfairly dismissed the Applicant. It says that the Applicant was summarily dismissed for serious misconduct in relation to:

(a)   his conduct and behaviour in the workplace on 10 December 2024; and

(b)   his responses to the allegations that were made against him about this conduct.

1. The Applicant’s conduct involved him throwing freight (including after he had been told by his supervisor to stop doing so), failing to operate an electric pallet jack (carrying a 1.2 tonne load) in a safe and responsible manner, and taking unauthorised video/s or photographs of his colleagues whilst they were performing their work.

1. Post the issuing of Directions for the filing and serving of evidence, a hearing was conducted in Sydney.  At this hearing, Ms Isabella Wsiniewska, Legal Officer, Transport Workers’ Union of Australia (TWU), appeared for the Applicant, and Mr Adam Batagello, Partner, Lander and Rogers lawyers, appeared (with permission) on behalf of the Respondent.  The parties filed written closing submissions post the hearing.

Factual Findings

1. The Respondent is a logistics, freight handling, and freight distribution company, with a focus upon the sorting and delivery of parcels and freight.  It is a member of the Australia Post group of companies.

1. On 2 October 2013, the Applicant commenced employment with the Respondent as a full-time permanent employee in the role of Freight Handler at the Respondent’s logistics facility in Greenacre, NSW (Greenacre Facility). The Greenacre Facility is an accredited ‘premium’ site, providing a national air transport next business day delivery service for goods, postal articles, and freight.[1]  Being a premium site, no photographs are permitted to be taken in the facility, with signage to that effect in place at the entry points to the facility.[2]

1. In 2023, the Applicant joined the Transport Workers’ Union (TWU) and was elected as the TWU delegate for the Greenacre Facility later that year. The Applicant regularly participated in TWU delegate committee meetings and forums where disputes, safety concerns, and any other site relevant workplace issues were addressed.  He is also a member of the TWU national bargaining committee, and was involved in relevant enterprise bargaining agreement negotiations. At the time of his dismissal, the Respondent and the TWU were bargaining for a new enterprise agreement.[3]

1. The Applicant has no prior history of disciplinary action or misconduct.[4]

1. On 10 December 2024, the Applicant worked one of his normal afternoon/evening shifts at the Greenacre Facility.

1. On 17 December 2024, the Applicant received a letter from Mr Leon Arama, Senior Supervisor, on behalf of the Respondent (Suspension letter), in relation to the Applicant’s conduct during his work shift on 10 December 2024, which (relevantly) reads:

“Dear Vixon,

As discussed with you today, StarTrack has become aware of allegations of serious breaches of safety, inappropriate conduct and unauthorised recording of customer goods by you which, if substantiated, are inconsistent with StarTrack’s Minimum Standards and Our Ethics.

You will be provided with the details of the allegations that have been made against you and the process for the investigation separately. Please be assured that you will be provided with an opportunity to respond in full to the allegations made against you in due course.

In the meantime, this letter is to confirm that you will be suspended with pay from your position with StarTrack while the investigation is conducted. This suspension will commence from 17 December 2024 and will continue until StarTrack advises you otherwise.


…

During the suspension, you are required not to attend for work or perform any duties as an employee of StarTrack, unless otherwise directed. For the avoidance of doubt, this means that you are not to attend your usual workplace or any other StarTrack workplace for any reason (including, but not limited to, participation in activities connected with StarTrack enterprise bargaining), for the duration of the suspension.

…

[…] if any of the alleged misconduct is found to be substantiated, I will consider if your conduct constitutes a breach of StarTrack’s Minimum Standards, Our Ethics and/or any other relevant policies or procedures, and a recommendation will be made to a senior manager of StarTrack, who will act as the Decision Maker. Should this be the case, you may be subject to disciplinary action including up to the termination of your employment.”

1. On 19 December 2024, the Applicant received a letter of allegations from the Respondent (Letter of Allegations) regarding his conduct during his shift on 10 December 2024.[5] Those allegations (relevantly) were:

(a)   Allegation 1 (Throwing freight, and not stopping until a third request to do so was made): At 9.00pm, the Applicant’s manager and supervisor, Mr Hussain Arefin, to whom the Applicant reported, directed a member of the Applicant’s team to resume a task that they had originally been directed to do in another area of the Greenacre Facility. The Applicant became agitated at Mr Arefin’s direction, raised his voice at Mr Arefin, and proceeded to throw boxes of freight forcefully into an air (storage) container.  These boxes of freight collided forcefully with the surfaces of the container. Mr Arefin requested the Applicant to stop throwing the freight multiple times, but only after Mr Arefin’s third request (direction) did the Applicant cease throwing freight.[6]

(b)   Allegation 2 (Driving of pallet jack recklessly and contrary to safety requirements): At approximately 9:25pm, near chutes 23-25, whilst operating a pallet jack carrying a fully loaded air can weighing approximately 1.2 tonnes (the Goods) to the open area for forklift pickup, the Applicant knowingly and recklessly, drove a pallet jack into trolleys and close to team members (other employees), failed to keep a clear way whilst operating the pallet jack, collided with several trollies containing customer goods (dragging them at least 1.5m), and when asked to stop by Mr Arefin because his actions were unsafe and may cause damage (including wheel damage), responded in a raised voice (with words to the effect of) "what wheel damage? What wheel damage?" and continued to drive the pallet jack forward.[7]

(c)   Allegation 3 (Recording of employees handling freight contrary to policy): After 10.20pm, the Applicant approached a group of freight handlers sorting freight outside Door 5, and asked them what they were doing. When told that these employees were sorting freight as requested by Mr Arefin, the Applicant responded by laughing and said (words to the effect of) “there is no need to do this work, it can be done by another shift”. The Applicant subsequently took out his personal mobile phone, pointed it at his colleagues who were working and sorting freight, and began video recording or photographing them whilst they worked without their permission or authorization.[8]

1. On 20 December 2025, the Applicant attended a meeting with Mr Leon Arama, Senior Supervisor, and Mr Marcus Chung, Employee Relations Case Manager, and the Applicant’s support person (TWU representative), wherein the Applicant was given the opportunity to respond to the allegations (20 December Meeting).[9] At this meeting, the Applicant was shown CCTV footage of the alleged incidents. The meeting took approximately three hours, and the Applicant strongly denied Allegations 1 to 3, either in full, or as they were characterised by the Respondent.

1. On 13 January 2025, the Applicant received a letter from the Respondent (Show Cause Letter),[10] which (relevantly) read, as follows:

“The purpose of this letter is to advise that the investigation has now concluded and to inform you of the findings, which are included in Attachment 1 to this letter. In summary, Allegations 1, 2 and 4 have been substantiated. In arriving at this conclusion, I have taken into account all of the information available to me, including your responses during the investigation interview on 20 December 2024, witness statements obtained and CCTV footage. Please note that, whilst Allegation 3 has been partially substantiated, there have been no policy breaches identified in respect of that allegation.

…

In view of the above, StarTrack has formed a preliminary view that your conduct amounts to serious misconduct, justifying the immediate termination of your employment without notice.

Before making a final decision on your continued employment you shall be afforded an opportunity to provide StarTrack with any additional information as to why your employment should not be terminated.”[11]

1. In a letter dated 17 January 2025, but provided to the Respondent on 20 January 2025, the Applicant provided his written response to the Show Cause Letter (Show Cause Response).[12] In the Show Cause Response, the Applicant again denied Allegations 1 to 3, either in full, or as they were characterised by the Respondent, and reiterated his reliance upon the same responses provided by him at the 20 December Meeting.[13]  In other words, the Applicant was content to rely upon the responses he had already provided at the 20 December Meeting, and raised no concern that such responses (from the 20 December Meeting) ought be altered or changed because he did not understand the allegations that had been put to him.

1. On 28 January 2025, the Respondent summarily terminated the Applicant’s employment for serious misconduct by way of a letter signed off by Mr Jonathan Duck, State Operations Manager NSW/ACT – Premium Network Operations (Termination letter). In addition to noting and responding further to some of the matters raised by the Applicant in the Show Cause Response, the Termination Letter states:

“Taking all of this into consideration, the substantiated conduct, as well as your continued denial of it, has broken my trust and confidence in you and the employment relationship has been irrevocably damaged. Whilst you have been a long-standing employee with StarTrack, I do not consider that this excuses your behaviour. Accordingly, it is my decision to terminate your employment with StarTrack without notice effective immediately on the basis that you have engaged in serious misconduct.”[14]

Resolution of facts in dispute – approach to witness credibility

1. The ultimate issue in this case is whether or not the Applicant’s dismissal by the Respondent was harsh, unjust and/or unreasonable.  In order to determine this ultimate issue, I must resolve disputed accounts as to what occurred in respect of Allegations 1 to 3.  In doing so, I must assess the credibility of the evidence of both the Applicant and the Respondent’s witnesses.[15] In undertaking this task, I adopt what was said by Manousaridis J in O’Kane v Freelancer International Pty Ltd & Anor:[16]

“[19] Credibility may be defined as “the quality or power of inspiring belief”. When applied to testimony, credibility refers to the capacity of the testimony to inspire belief in the existence or non-existence of the fact asserted by the witness to exist or not exist. A finding by a court in a civil proceeding, therefore, that testimony is not credible is usually taken to be a finding that the testimony does not have the capacity to satisfy the court, at least on the balance of probabilities, of the existence or non-existence of the fact asserted by the testimony to exist or not exist. But “credibility” has a broader meaning. It may be taken to refer to testimony that is capable of satisfying a fact finder that the fact asserted by the testimony to exist or not exist does exist or does not exist, but which, in the particular circumstances of the case, the fact finder is not so satisfied. I propose to use “credibility” in both senses.

[20] Whether or not any given testimony will inspire satisfaction in the existence or non-existence of the fact the witness asserts exists or does not exist will depend on the fact-finder’s assessment of the witness’s “powers of perception, memory and narration . . . and of his [or her] opportunity and desire to exercise them honestly and efficiently in the situation under examination”. That means that assessing the credibility of testimony “involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be”. Assessing evidence “apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence”. It has also been said that credible evidence is “that which meets the test of plausibility”.

[21] There have been a number of statements about how a court should assess testimony. For example in The Ocean Frost, Robert Goff LJ said:

‘It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.’

[22] And in EPI Environmental Technologies Inc v Symphony Plastic Technologies, Smith J said:

‘(i) First, it is essential to evaluate a witness’s performance in the light of the entirety of his evidence. Witnesses can make mistakes, but those mistakes do not necessarily affect other parts of their evidence.

(ii) Second, witnesses can regularly lie. However, . . . [that] does not mean necessarily that the entirety of that witnesses [sic] evidence is rejected. A witness may lie in a stupid attempt to bolster a case, but the actual case nevertheless remains good irrespective of the lie. A witness may lie because the case is a lie.’

[23] Finally, there is the approach to fact-finding described by Justice MacKenna.

‘This is how I go about the business of finding facts. I start from the undisputed facts which both sides accept. I add to them such other facts as seem very likely to be true, as, for example, those recorded in contemporary documents or spoken to by independent witnesses like the policeman giving evidence in a running-down case about the marks on the road. I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points. I rely as little as possible on such deceptive matters as his demeanour. When I have done my best to separate the true from the false by these more or less objective tests, I say which story seems to me the more probable, the plaintiff's or the defendant's, and if I cannot say which, I decide the case, as the law obliges me to do, in the defendant’s favour. The plaintiff has failed to discharge the burden of proof.’ ”[17]

Relevant law regarding unfair dismissal

1. 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.”

1. 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; and

(e)the Applicant’s dismissal was not a case of genuine redundancy within the meaning of s.389 of the Act.

1. I accept and make findings consistent with the foregoing position of the parties. It follows that the Applicant is an employee protected from unfair dismissal in respect of his employment with the Respondent, and has filed a valid unfair dismissal application.

Whether the Applicant’s dismissal was harsh, unjust, and/or unreasonable

1. 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.  It reads:

“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”.

1. The terms “harsh”, unjust” and “unreasonable” are to be given their ordinary meaning.

1. An Applicant (employee) carries the onus to prove that his or her dismissal was unfair.

1. 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:[18]
   
   

   “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] YR 632, at 634.”[19]

(my emphasis)

s.387(a) - Whether there was a valid reason for the Applicant’s dismissal which is related to his capacity or conduct

1. An employer bears the persuasive onus of establishing or proving that there was a valid reason for an employee’s dismissal.[20] The level of proof is on the balance of probabilities, at a reasonable level of satisfaction.[21] 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.[22]

1. 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”.[23]  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.[24]

1. 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.[25]

1. 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.[26]

1. In these proceedings, the Applicant’s case (or case theory) has sought to answer and/or undermine the allegations made against him (and the findings made by the Respondent) based upon (or because of):

(a)   his union membership, him being a union delegate, and him engaging in union or representative activities (including enterprise bargaining negotiations);

(b)   him raising safety issues in the past;

(c)   him being disliked by his supervisor (Mr Arefin), and/or targeted by his supervisor (Mr Arefin); and/or

(d)   differential treatment (i.e. by way of comparisons with other employees, including the treatment of other employees who the Applicant says have engaged in the same or similar conduct, but have not been subject to disciplinary action or dismissal because of such conduct). 

1. The foregoing contentions made by the Applicant are all ‘positive’ contentions.  In other words, they are contentions made by the Applicant not simply as part of what he asserts to be relevant facts and circumstances to be taken into account, but as specific answers as to why:

(a)   allegations were made against him in the first place; and/or

(b)   findings (in relation to the allegations) were made against his interests by the Respondent (including as to the Respondent’s decision to dismiss him). 

1. As positive contentions, there can be no suggestion that the Applicant does not carry the onus to prove them on the balance of probabilities, noting that there is no reverse onus that applies in unfair dismissal proceedings.  It also appropriate to observe that given these contentions constitute serious allegations (in that they assert a dishonest, conspiratorial and/or potentially unlawful motive/s by the Respondent), they require probative evidence to support them, so that they overcome or displace what should otherwise be a straightforward contest (i.e. did the conduct occur, or not occur, as a matter of fact, based upon the evidence).

1. It is appropriate to deal with each Allegation made against the Applicant, as found sustained by the Respondent, separately.

Allegation 1: Throwing freight, and not stopping until a third request to do so was made[27]

1. On the evening shift of 10 December 2024, Mr Hussain Arefin was the Operations Supervisor on shift (i.e. in charge of the shift).  The Applicant was a direct report to Mr Arefin on this shift.  In his supervisory role, Mr Arefin was entitled (and within his rights) to:

(a)   as he considered appropriate or necessary, direct employees to perform unloading or loading work at a particular chute/s or blue cage/s (to the exclusion of other work) temporarily or permanently during the shift, and/or move employees from one work section to another; and

(b)   monitor the breaks employees were taking, including tea, meal and bathroom breaks, so as to ensure employees were not taking excessive breaks, or being absent from productive work beyond what they should be.[28]

1. Mr Arefin directed two employees on shift (on 10 December 2024) to work on loading/unloading blue cages.  At around 9pm he noticed that one of these employees was off task, and instead of working on the blue cage he had been assigned, was instead assisting the Applicant on a non-urgent task, i.e. loading and locking up freight into an Air Can (ABB Can) that was not due to be dispatched until the next day.[29]  This employee had neither sought nor obtained permission from Mr Arefin to go off task and assist the Applicant.  Mr Arefin directed this off task employee to go back and continue working on the blue cage because firstly,  that is what the employee had been directed to do in the first place, and secondly, because Mr Arefin considered that work on the blue cage at that time was more important than assisting the Applicant to do his work.[30]  Mr Arefin’s evidence as to what occurred next is as follows:

“As I turned to leave the area where Mr Kumar was working, I heard a loud banging noise behind me. I turned around and saw Mr Kumar throwing freight [boxes] into [the ABB Can]. I recall that Mr Kumar was throwing the freight in an "under arm" style, and it was slamming against the wall of the air can which was creating the loud banging noise.

I immediately approached Mr Kumar and asked him to stop throwing the freight, I believe by saying words to the effect of "take it easy, don't throw the freight in the container".

Despite my asking him not to do so, Mr Kumar continued to throw the freight into the [ABB Can] and did not look at me in response to my request. I recall repeating my request 1 or 2 more times before Mr Kumar then stopped throwing the freight and looked at me. While I cannot remember him saying anything, I recall that his facial expression when he looked at me appeared angry.”[31]

1. The foregoing evidence of Mr Arefin is supported by contemporaneous notes made by him on the evening of 10 December 2024,[32] his notification to Mr Javid Akhter, Star Track Production Supervisor (on 10 December 2024), and his notification to the Respondent’s People Services Team (on 16 December 2024, which Mr Akhter had told him to do) about the incident.[33] I accept this evidence of Mr Arefin,[34] and make findings in these proceedings consistent with same.

1. At the 20 December Meeting, the Applicant denied Allegation 1.[35]  In his Show Cause Response, the Applicant again denied Allegation 1 (including by way of reliance upon his responses at the 20 December Meeting).[36] In his witness statement, the Applicant denies that he threw freight, and denies that he was told by Mr Arefin to stop throwing freight three times.[37] He doubles down on this denial in his Reply Witness Statement,[38] and in his submissions[39] (including in reply).[40]  In his evidence before the Commission, the Applicant again denies that he threw freight,[41] and again says that he was told only once by Mr Arefin to stop throwing freight.[42]  After being shown (taken through) video footage in relation to Allegation 1 at the hearing, the Applicant again denied that he was or could be seen throwing freight into the ABB Can.[43]

1. In his evidence before the Commission, Mr Arefin confirmed that whilst the ABB Cans are aluminium, they do not make a loud noise when freight is loaded (placed) into them, but they will make a loud noise where freight is thrown into them and hits or strikes the aluminium surface.[44]  I consider this evidence to be logical and straightforward.[45]  When an object is placed on a surface (no matter what the surface) it does not make a loud noise, whilst when an object is thrown at, or dropped onto, a surface, it will (ordinarily) make a noticeable noise.

1. The cross-examination of Mr Arefin proceeded on the basis that the Applicant was not throwing freight boxes or parcels into the ABB Can. This was resolutely rejected by Mr Arefin,[46] and I accept his evidence in this regard.

1. Mr Arefin was not cross-examined on his evidence that he told the Applicant three times to stop throwing freight into the ABB Can.[47]

1. On the evidence before me, including the video evidence,[48] I make the following findings in relation to Allegation 1:

(a) the Applicant was throwing freight into the ABB Can during his shift on 10 December 2024. There is a clear and irrefutable difference in the video footage between the Applicant throwing freight into the ABB Can,[49] and him placing freight into the ABB Can. This removes or wholly displaces the Applicant’s contention that the ABB Can makes a noise irrespective of whether freight is thrown or placed in it.[50]  Further, Allegation 1 does not rise and fall on the sounds of an ABB Can, or the presence of a Skid.[51] The fact that the Applicant was throwing freight into the ABB Can is supported by the evidence of Mr Arvind Kumar, Freight Handler and Team Leader, who witnessed the Applicant throwing freight,[52] and the evidence of Mr Arefin;[53]

(b)   the Applicant was aware that work practices do not authorise him to throw freight into an ABB Can.[54]  Indeed, if the Applicant was permitted or allowed to throw freight into the ABB Can, he would not need to deny it;

(c)   I accept the evidence of Mr Arefin that he requested (directed) the Applicant to stop throwing freight into the Air Can on three different occasions (or three times).  I also accept the evidence of Mr Arefin that the Applicant did not stop throwing freight until after the third time he was requested (directed) to stop.  I observe that the Applicant accepts he was told to stop throwing freight by Mr Arefin on at least one occasion.[55]  Even taking the Applicant’s own evidence at its highest, it is consistent with him throwing freight (i.e. if the Applicant was not throwing freight, why would he be asked by Mr Arefin to stop throwing freight in the first place);

(d)   I reject the Applicant’s denials in relation to Allegation 1.  Such denials are based upon a misrepresentation of the facts (including the undisputable video evidence);

(e)   I reject the Applicant’s contention that an inference, flowing from Mr Narayan Rawal’s failure to give evidence, should be drawn in these proceedings.  In this regard, the Applicant has not explained what evidence Mr Rawal should have been called to explain or contradict (i.e. Mr Rawal can be seen walking away from the area that the Applicant was loading freight - prior to the Applicant being seen throwing freight and interacting with Mr Arefin).  Mr Arefin and Mr Arvind Kumar have given evidence in relation to Allegation 1.  There is no requirement for a party to call all of its witnesses (or potential witnesses) to give evidence about the same incident.

(f)    Allegation 1 is a stand-alone incident.  It occurred as a matter of fact.  The Applicant’s contentions that he was targeted in relation to Allegation 1 because of his union membership or union activities, or his relationship with Mr Arefin (howsoever described or asserted), totally misses the point in that it does not engage with the facts of Allegation 1.  The Applicant could have said to the Respondent and/or the Commission that he accepts that Allegation 1 occurred, but that it occurred because he was upset and frustrated (for whatever reason), thus explaining or mitigating his conduct.  But that is not the Applicant’s case.  I find that the Applicant’s denials of Allegation 1 are not a mistake by him, but intentional.

1. In view of my findings in the foregoing paragraph, I consider that Allegation 1 constitutes a stand-alone, and valid, reason for the Applicant’s dismissal.  It is a valid reason for dismissal not so much for the conduct itself, but for the Applicant’s denials that he was throwing freight at all.  The Applicant cannot have it both ways.  He cannot rely upon the asserted triviality of his conduct in circumstances where he denies that the conduct ever happened at all.  In this regard, it is the wrongful denial of the conduct that confirms Allegation 1 as a valid reason for dismissal, not simply the throwing of the freight.

1. I reject the Applicant’s contention that Mr Arvind Kumar’s evidence is not to be accepted, or is to be given little weight, because he was under some form of pressure by the Respondent to give evidence.  There is no basis whatsoever on the evidence to support this contention.  I found Mr Arvind Kumar to be not only a credible witness, but a witness of truth.  His evidence is straightforward and factual as to what he saw, heard, or otherwise perceived.  He provided a handwritten contemporaneous statement as to what occurred in respect of Allegations 1 to 3 on 12 December 2024 (i.e. only two days after the relevant incidents occurred).[56]  His witness statement and evidence before the Commission are wholly consistent with his handwritten contemporaneous statement.

1. It is also appropriate to engage with the Applicant’s contention that he was singled out for throwing freight boxes into the ABB Can, in circumstances where other employees were seen throwing satchel or envelope parcels whilst they were sorting same (into interstate and local freight) at the end of their shift.[57]  In this regard, I make the following findings:

(a)   the Applicant’s case is that he was not throwing freight boxes at all.  Again, the Applicant cannot come to the Commission and say that he was not throwing freight boxes into the ABB Can, but then say, well, even if I was throwing freight boxes, I have been singled out or treated unfairly because other employees threw satchel or envelope parcels (and nothing was raised with them about it).[58]  In other words, the Applicant’s alternative case, based upon comparisons with others, only arises (as a justification of, or defence to, his conduct) if he admits to throwing freight in the first place (which he does not);

(b)   the Applicant’s attempt at a comparison is not ‘like for like’.  Allegation 1 is not simply about throwing freight.  Allegation 1 is not so much about him throwing freight, but more about him continuing to throw freight after he is repeatedly told by his supervisor to stop;

(c)   the Respondent has provided a credible explanation as to why the Applicant’s throwing of freight boxes was considered to be different (in this case) to the employees throwing (or tossing) freight satchels or envelope parcels.[59]  Nothing that the Applicant has submitted undermines the Respondent’s explanations in this regard;[60] and

(d) the Applicant’s contentions in his witness statements and submissions, as to him being targeted generally (including during his shift on 10 December 2024) by Mr Arefin dissolved at the hearing. In this regard, for example, the Applicant’s assertion that Mr Arefin was making notes about him in a notebook was not pressed (from an evidentiary perspective) by the Applicant at the hearing,[61] and ultimately was referred to by the Applicant as a “suspicion”.[62]  Further, Mr Arefin accepts that as part of his supervisory role, he regularly monitors (or attempts to monitor) employees breaks (howsoever described).

Allegation 2: Driving a pallet jack in the workplace recklessly and contrary to safety requirements[63]

1. The context to Allegation 2 is one of safety.  In this regard, I make the following findings as to the driving of a pallet jack in the Respondent’s workplace: 

(a)   Pallet jacks (Load Shifting Equipment (LSEs)) run off electric power, and are used in the Respondent’s workplace to transport, amongst other things, ABB Cans.  Such Cans, when loaded, weigh up to 1.5 tonnes.[64]

(b)   The Applicant is a certified LSE Driver.[65]  In order to be a certified LSE Driver, the Applicant has put himself forward as not only a competent, but a safe and responsible driver.  In being certified, the Applicant has made promises to himself, other employees, and his employer, that he will at all times operate any LSE that he drives in a safe and responsible manner;

(c)   The Applicant, as an LSE Driver, is required to comply with the Respondent’s (written) LSE Safety Instructions.[66]  The overarching principle of these instructions is a matter of basic common sense: “Always operate LSE in a responsible, safe and professional way”.  Putting aside the specific protocols and requirements of the LSE Safety Instructions, the words “responsible, safe and professional” are overarching and unimpeachable principles.[67]  These principles encompass and embrace matters of individual and collective safety responsibility.  In other words, an employee driving an LSE cannot escape the application of these principles to themselves by finger pointing at the conduct of others.[68]

(d)   Prior to driving a pallet jack, an employee should review the route they intend to take through the workplace, identify any obstacles on that route, and remove (or have others remove) any such obstacles from the path (or likely path) of the pallet jack.[69]  The employee may do this themselves, or have another employee (“Spotter”) do it for them.

(e)   Prior to driving a pallet jack, a Spotter needs to be arranged to guide the pallet jack driver through that the route the pallet jack will be taking in the workplace.[70]  A Spotter is an employee who observes a pallet jack whilst it is moving through the workplace to ‘spot’ obstacles or hazards, and/or guide the driver of the pallet jack through the workplace to its destination.  This is done to eliminate the risk of the pallet jack hitting something or someone as it travels along its route (and causing damage or injury).  Whilst it is the responsibility of all employees to ensure a Spotter is in place,[71] it is the responsibility of the individual pallet jack driver not to drive a pallet jack until a Spotter is found or allocated. If a Spotter is not, or cannot, be arranged, the straightforward requirement is that pallet jack driver should not drive the pallet jack (i.e. the pallet jack driver should perform other work until a Spotter is found or arranged). The issue of a Spotter being required to be arranged before a pallet jack is driven was raised during consultative meetings (that the Applicant was present at) on at least two occasions,[72] and is a requirement of the Respondent’s LSE Safety Instructions. To the extent that it is said that the Respondent’s LSE Safety Instructions contain some ambiguity as to the requirement for a Spotter, the Applicant himself was not unclear (at all) about the requirement.[73]  The Applicant’s evidence that it was for management or someone else to arrange a Spotter for him is neither here nor there.  If a Spotter was not in place, he should not have been driving the pallet jack in the first place.  As Mr Duck stated during cross-examination “he [the Applicant] didn’t wait for a Spotter”.[74]

(f)    Consistent with the operation of an LSE in a “responsible, safe and professional way”,[75] the driver of an LSE (themselves) must:

i)watch out for, and give way to, pedestrians (other workers);

ii)not allow other employees to be, or come too close, to the LSE whilst it is moving.  If anyone is or becomes too close (within three metres of the LSE), it is the sole responsibility of the driver of the LSE to immediately stop, turn off the LSE, and ensure that such employees (and other obstacles) have moved away before starting to drive again;[76]

iii)watch out for obstacles (e.g. pallets and trolleys) and ensure that such obstacles are removed from the path of the LSE, and/or that the LSE does not come into contact with such obstacles;

iv)always be looking out for any changed conditions or new hazards or obstacles, and respond responsibly and safely to same.[77]  In other words, if the pallet jack driver sees an obstacle, he or she should immediately stop the pallet jack, turn off the pallet jack, and get out of the pallet jack and move the items out of the way, or arrange for others to do so.  It is never appropriate to simply ‘push on through’.

1. Mr Arvind Kumar’s evidence as to Allegation 2 is as follows:

“15. Later that same evening, at about 9:30PM, I was working at chutes 25 and 27, trying to clear the freight before night shift commenced. I heard a bang and when I turned to my left to investigate, I saw Mr Kumar driving an electric pallet jack with an air can attached.

16. Mr Kumar didn't stop, and I asked the guys on shift to quickly move the blue cages out of the way. I also started moving the cages myself. Mr Kumar was less than a metre from me, so I asked Mr Kumar to wait, however he did not respond. Then Mr Arefin came over and asked Mr Kumar to stop as it will damage the cages, including the wheels, but Mr Kumar responded with something to the effect of 'what wheels?' and 'what damage?'.” [78]

1. Mr Arefin’s evidence as to Allegation 2 is as follows:

“24. Later on the same shift on 10 December 2024, at around 9:25 pm, I was standing near chute 23 in the facility when I heard a bang from behind me.

25. I turned around and saw Mr Kumar driving a ride on pallet jack, with an air can attached to the back. It appeared to me that the sound I heard had been caused by Mr Kumar colliding with a silver cage containing freight, as I saw another worker moving the cage out of the way while Mr Kumar was continuing to drive forward. I also saw other workers moving other cages from Mr Kumar's path of travel.

26. I approached Mr Kumar while he was still seated on the pallet jack and said words to the following effect: "Vixon don't do that, it's unsafe and you could damage the wheels on the cage". Mr Kumar responded with words to the effect of: "Do what? What wheels? What will get damaged?". Mr Kumar repeated these phrases several times. Mr Kumar's tone of voice during this discussion was aggressive, his voice was loud and when he repeated these phrases he sounded agitated that I had spoken to him. I was standing around 2 metres from Mr Kumar at this time and he did not need to raise his voice for me to hear him.”[79]

1. Mr Justin Ta’Ai Lemalu’s evidence as to Allegation 2 is as follows:

“In addition to the content of the Handwritten Statement, I recall that on 10 December 2024, I was moving blue cages when I heard the bang from behind me. I turned around and saw Mr Kumar driving an electric pallet jack with an air can attached to the back. The bang seemed to me to be caused by Mr Kumar colliding with a silver cage. I watched as Mr Kumar continued to drive the pallet jack forward while cages were in the way.” [80]

1. Putting aside any rules, requirements, policies or procedures, the manner in which the Applicant drives the pallet jack through the workplace, with a 1.2 tonne ABB Can on the back, and coming within very close proximity to four other employees, defies all notions of safety and common sense.[81]  Indeed, the non-transferrable statutory obligations that all employee’s (including the Applicant) must observe and strictly comply with at all times at the Respondent’s workplace are set out in s.28 (“Duties of Workers”) of the Work, Health and Safety Act 2011 (NSW) (WHS Act), which reads:

“While at work, a worker must:

(a)  take reasonable care for his or her own health and safety, and

(b)  take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and

(c)  comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and

(d)  co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.”[82]

1. The Applicant’s evidence[83] and contentions as to Allegation 2, may be summarised as follows:

(a)   his actions were an “accident”,[84] a “mistake”,[85] and/or a “skills error”;[86]

(b)   he did not drive the pallet jack into other employee team members;

(c)   he did not drive the pallet jack in the direction of other employee team members;

(d)   he was operating the pallet jack in a tight working environment;

(e)   the collision was partly the fault or other employee team members as they were working too close to him, creating confusion for him as to traffic flow;

(f)    there were no blue lights on his pallet jack (which mark out a three metre radius for clearance);

(g)   the other employees pushing trolleys out of the way were doing the wrong thing, he (the Applicant) was not doing the wrong thing;

(h)   trolleys should not be stored in the area where the collision occurred;

(i)     he did not drag or push trolleys after the pallet jack collided with them;

(j)     he does not recall being asked to stop driving the pallet jack, and he does not recall stating words to the effect of “what wheel damage”;[87] and

(k)   the Applicant did bring the pallet jack to a halt (i.e. he stopped) when the pallet jack collided with the trolleys.[88]

1. Mr Duck’s evidence as to his assessment of the Applicant’s responses to Allegation 2 is as follows:

23. While I was concerned by all of the allegations which were found to be substantiated, the allegation that was front of mind for me when I was considering an appropriate outcome was Mr Kumar's operation of the EPJ on 10 December 2024. After reading abovementioned material, the following factors weighed heavily in my view on the appropriate outcome, which I considered to be the summary termination of Mr Kumar's employment:

(a)   the severity of the substantiated safety breach in the operation of the EPJ. Mr Kumar drove the EPJ through an area where his fellow team members were working in close proximity, and continued driving even after colliding with other equipment. To me, this displayed a disregard for company policy and procedure designed to protect the health and safety of our people. While we were fortunate on this occasion no one was hurt, the absence of this did not, in my mind, make Mr Kumar's conduct any less severe, as the risk simply could not be accepted when my job as a manager is to reduce the team's exposure to potential harm;

(b)   I was also concerned by 2 aspects of Mr Kumar's responses during both the investigation and in the Show Cause Response, in particular:

(i)      the record of interview included a statement from Mr Kumar that he "tried to stop", which I confirmed with Mr Chung and Mr Arama was in reference to his operation of the EPJ. My review of the Pallet Jack Footage did not suggest to me that Mr Kumar had made any attempt to stop the vehicle. To the contrary, after colliding with the silver cage, he appeared to continue to push it forward using the EPJ until it was moved by another worker. I was concerned that Mr Kumar had not been forthright in his interview with Mr Chung and Mr Arama regarding his operation of the EPJ; and

(ii)   Mr Kumar's responses showed a lack of remorse and lack of ownership of his actions throughout both the investigation as well as in his Show Cause Response. Not once in his Show Cause Response did Mr Kumar acknowledge that his actions in operating the EPJ the way he did were inappropriate. Instead, he shifted blame to fellow team members in the vicinity and criticised the layout of the area. In my mind, rather than simply stating that the area in which he was operating the EPJ was "tight", this should have been the first sign to Mr Kumar at the time that he needed to take care with his operation, which was not apparent to me at all when I reviewed the Pallet Jack Footage.

[…]

25. Since I have been at the Greenacre Facility, I cannot recall any other incident as significant in my mind as Mr Kumar's conduct while operating the EPJ on 10 December 2024.

[…]

30. As to paragraph 129 of Mr Kumar's Statement, Mr Kumar refers to other employees operating too close to the EPJ and not staying 3 metres clear of it. To me, this shows Mr Kumar's knowledge that staff were well within the vicinity of the EPJ, yet the Pallet Jack Footage shows that Mr Kumar continued to operate the machinery regardless. As stated at paragraph 27 above, the appropriate procedure in the circumstances would have been to turn the EPJ off and watch until the employees had moved away, and to use a spotter to ensure the area around the EPJ was clear.

31. As to paragraph 130 of Mr Kumar's Statement, it is correct that StarTrack has blue lights, known as "halo lights", on forklifts. These lights can be seen on other vehicles visible in the Pallet Jack Footage, but not on the EPJ which was being operated by Mr Kumar. While the halo lights have not been added to the EPJs, it is a company requirement that a spotter is required if an air can is being carried to pass under the sorter, which Mr Kumar failed to follow. Further, the absence of the blue lights does not in my view excuse the manner of Mr Kumar's operation of the EPJ on 10 December 2024, given that he got so close to the silver cage so as to collide with it, and continued to move forward.

[…]

34. As to paragraph 166 of Mr Kumar's Statement, I have not witnessed, nor am I aware of, any other safety breaches involving an EPJ of this magnitude while I have been at the Greenacre Facility. I am also concerned by Mr Kumar's continued reference to the incident as an accident, as I do not think this accurately portrays what is seen in the Pallet Jack Footage, in particular his continuing to push forward in the EPJ while other workers had to move cages out of his path of travel.

[…]

38. It is important for me to highlight that no matter which team member I observed engaging in the conduct seen in the Pallet Jack Footage, my view of the seriousness of the incident would have been the same. There was a significant breach of safety procedure which required an appropriate response. The industry in which we work is such that people are faced with significant safety risks on a daily basis, and it is important that we have these procedures in place to mitigate and reduce exposure to these risks and ensure strict compliance by our team members. If procedures aren't followed, we can have events of serious injury, loss of limb and in severe cases, fatality.”[89]

1. The video footage of Allegation 2[90] shows:

(a)   the Applicant driving a pallet jack with an ABB Can on the back of it (I accept from the witness evidence of the Applicant that this ABB Can weighed around 1.2 tonnes);[91]

(b)   the Applicant driving straight into, and colliding with, a silver cage trolley in front of him that is packed with freight.  Whilst the Applicant pauses shortly after the pallet jack first makes contact with the trolley (for no more than three seconds), he then continues on driving and pushing forward, again making contact with the loaded trolley in front of him, but this time the loaded trolley now has an employee behind it, scrambling to move it out of the way;

(c)   another employee takes hold of the trolley that is being pushed by the Applicant in the pallet jack, but the Applicant continues to drive forward, again pushing the trolley as the employee is trying to move it out of the way;

(d)   employees and trolleys (obstacles) are all around the moving pallet jack, yet the Applicant continues to drive on and push forward, whilst three other employees clamour around trying to grab hold of the trolleys (that are in the path of the pallet jack) and move them out of the way;

(e)   yet another employee (making a total of four employees) joins the fray, also grabbing hold of and moving trolleys out of the way; and

(f)    it is readily apparent (from the video footage) that if any of the wheels of the trollies being pushed around by Applicant on the pallet jack became stuck or jammed, or the structure of any of the trollies became caught up with another trolley, some or all of the trolleys being pushed along by the pallet jack may have toppled over, potentially carrying with them the employees who were taking hold of the trolleys, foreseeably causing damage and/or injury (including serious injury).[92]

1. I make the following findings as to Allegation 2, and the Applicant’s driving of a pallet jack on 10 December 2024: 

(a)   The Applicant’s actions in driving the pallet jack are a textbook example of how a pallet jack should never (ever) be driven, whether that be in the Respondent’s workplace, or any other workplace.

(b)   Howsoever Allegation 2 may be framed, all of the evidence supports the conclusion that the Applicant, whilst operating a pallet jack carrying a fully loaded ABB Can (weighing approximately 1.2 tonnes), knowingly and recklessly, drove the pallet jack directly into a loaded trolley, and then continued to drive forward, with other employees moving other trollies out of the way.  This is not a safety incident where one splits hairs over the minutia as to the manner in which Allegation 2 was framed.  The Applicant was being asked to respond to his conduct, as shown to him on a video footage by the Respondent during the disciplinary process.

(c)   None of the Applicant’s responses to the Respondent, or in his evidence to the Commission, explain or justify the Applicant’s conduct in operating the pallet jack in the manner that he did.  The Applicant’s conduct was no accident or mistake, and I accept the Respondent’s submissions (by reference to the Applicant’s responses) that the Applicant has not shown responsibility or remorse for the manner in which he drove the pallet jack during his shift on 10 December 2024.

(d)   I accept the evidence of Mr Arefin that:

i)he told the Applicant, whilst the Applicant was driving the pallet jack, and colliding with trollies/cages, that what the Applicant was doing was unsafe and that he needed to immediately stop driving the pallet jack; and

ii)the Applicant responded (several times) to the foregoing words and instructions of Mr Arefin with words of defiance, i.e. words to the effect of “What wheels?  What will get damaged?”. 

(e) There is no basis whatsoever on the evidence to find that the Respondent’s actions in raising Allegation 2 with the Applicant occurred because of his union membership, role as a union delegate, attendance at bargaining meetings, him raising safety issues in the past, him being disliked or targeted by Mr Arefin, him making a complaint to Mr Akhter, or for reasons of differential treatment. Indeed, it would have been wrongful for the Respondent, having regard to its non-transferrable obligations under Divisions 1 to 4 of the WHS Act, to not raise Allegation 2 with the Applicant; and

(f)    Allegation 2 is a serious safety breach that falls directly at the feet of the Applicant.  It is, in and of itself, a valid and stand-alone reason for the Applicant’s dismissal.

Allegation 3: Recording of employees handling freight contrary to policy[93]

1. The Respondent’s workplace is a secure facility, and subject to video monitoring and recording.  There is no basis for employees to be taking video or photographs of the workplace, or other workers working at the workplace, for any reason.  If there is a genuine safety or other concern about something occurring in the Respondent’s workplace, it can be brought to the Respondent’s attention, with video recordings obtained via the Respondent’s video recording system.[94]

1. I reject the Applicant’s contention that he was videoing or photographing employees handling freight for reasons of safety, whether that be to report such safety concerns to management, raise them at a consultative meeting, or to otherwise improve safety at the workplace.  The Applicant made no report to management about any alleged ‘safety’ incident on 10 December 2024, and has not shown videos or photographs of safety issues at the workplace previously to management.[95]

1. I accept the following evidence of Mr Arvind Kumar as to Allegation 3:

“17. Towards the end of my shift that same evening at approximately 10:30PM, I was sorting the remaining afternoon freight with 6 or 7 other afternoon shift team members. We were sorting it between interstate and local freight. We had moved the freight outside, up against the wall of the facility, as the night shift team had moved into the facility and were setting up for their shift. This is a regular occurrence for us. We do this on most shifts to allow night shift to set up for their shift and allow afternoon shift to finish sorting the remaining freight.

18. We were sorting the freight together as a team when Mr Kumar came out and asked me what we were doing. I responded to Mr Kumar with words to the effect of "we are trying to sort all of the remaining freight so that night shift only induct their freight, not our freight from the afternoon shift". Mr Kumar laughed and said something like: "don't waste your time, it is the night shift's duty". We continued to sort through the freight despite Mr Kumar's comment and that is when I saw Mr Kumar take out his phone and started videoing us.

19. I didn't feel comfortable being videoed without my consent. Shortly after I saw a team member from night shift team whose name I do not know, approach Mr Kumar and ask him why he was videoing us. Shortly after this interaction, Mr Kumar stopped videoing us.

20. There was no reason to film us. We were emptying the remaining freight as we usually would and so I do not understand why Mr Kumar would be filming us. It is common knowledge that you are not allowed to film in the facility.”[96]

1. Consistent with the evidence of Mr Arvind Kumar, I find that the Applicant was engaging in the conduct set out in Allegation 3 because he took it upon himself, or felt entitled, to make an issue of employees sorting freight at the end of their shift because he did not consider that such employees should have been sorting such freight (and engaging in useful and productive work) close to the end of their shift.[97]  Despite the Applicant’s assertions as to the reasons for, or purpose of, him taking photos or video recordings of other employees in the workplace, such reasons or purpose are not to the point.  The Applicant was not authorised to be taking photos or video recordings of other employees in the workplace, full stop.[98]  His actions in doing so are a clear and blatant breach of the Respondent’s workplace policies and procedures. 

1. Again, even if it be accepted that Allegation 3, in and of itself, is not a valid reason that justifies the Applicant’s dismissal, this is not to the point.  I find that Allegation 3 is a valid reason for dismissal because of the Applicant’s wrongful attempts to justify his conduct (including breach of policy) on the basis of ‘safety’.

Summary of findings in relation to ‘valid reason’ for dismissal

1. Having regard to my findings in relation to Allegations 1 to 3, on the issue of ‘valid reason’ for dismissal, I conclude that:

(a)   each of Allegations 1, 2 and 3 are separately, or in and of themselves, valid reasons for dismissal;

(b)   combined, Allegations 1 to 3 are valid reasons for dismissal;

(c)   Allegations 1 and 3, in terms of being valid reasons for dismissal, are more about the Applicant’s responses to his conduct, as opposed to the conduct itself; and

(d)   Allegation 2, in term of being a valid reason for dismissal, is as much about the conduct itself, as it is the Applicant’s responses to or explanations for that conduct.

1. Given that the Respondent did have valid reasons for dismissing the Applicant, this weighs against a finding that the Applicant’s dismissal was harsh, unjust, and unreasonable (i.e. unfair).

s.387(b) - Whether the Applicant was notified of the valid reason

1. 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.

1. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a) of the Act.[99] 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,[100] in explicit, plain and clear terms.[101]

1. I accept that the evidence discloses that the Applicant was notified of the reasons for his dismissal, and given an opportunity to respond to same. I consider that the criteria under s.387(b) of the Act is a neutral consideration that weighs neither for nor against any finding as to unfairness.

s.387(c) - Whether the Applicant was given an opportunity to respond to any reason related to his capacity or conduct

1. 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 their conduct so as to enable them to respond to the allegations, and have the opportunity to defend themselves. As Justice Moore has stated in Wadey v YMCA Canberra:[102]

“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.”

1. I accept that (on the evidence) the Applicant was made aware of the Allegations that were being made against him, and was provided with an opportunity respond to (and defend himself against) such allegations prior to the decision being made by the Respondent to terminate his employment.  I find that the Respondent followed a procedurally fair show cause process in the lead up to making its decision to dismiss the Applicant.[103]  I also find that the Respondent did not make a definite decision to dismiss the Applicant prior to first obtaining relevant responses from him, and taking those responses into account.[104]

1. I reject the Applicant’s contention that his responses to the Allegations put to him during the disciplinary process leading up to his dismissal, are to be differentiated from the conduct that he engaged in (giving rise to the Allegations).  The Respondent’s ultimate conclusion was that the Applicant had not only engaged in the conduct alleged, but that his responses to that conduct were unacceptable (and he showed no genuine responsibility or remorse for his behaviour).[105]  The Applicant had an opportunity to respond to the conduct allegations made against him.  His responses to that conduct are directly relevant to the decision made to terminate the Applicant’s employment.  From a factual perspective, I observe that:

(a)   at the hearing, the Applicant maintained and relied upon the same responses he gave at the 20 December Meeting; and

(b)   the Show Cause Letter itself identifies the Respondent’s “Minimum Standards” as to “ethics” that the Applicant needed to engage with in making his Show Cause Response.[106]

1. I consider that the criteria under s.387(c) of the Act is a neutral consideration that weighs neither for nor against any finding as to unfairness in this case.

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

1. The Applicant was provided with the opportunity to have a support person present during discussions relating to his dismissal. He was represented by the TWU throughout the dismissal process.  I consider that the criteria under s.387(d) of the Act is a neutral consideration that weighs neither for nor against any finding as to unfairness in this case.

s.387(e) - Whether the Applicant was warned about that unsatisfactory performance before his dismissal

1. This case does not involve unsatisfactory performance, but dismissal because of conduct. I consider that the criteria under s.387(e) of the Act is either an irrelevant or a neutral consideration (that weighs neither for nor against any finding as to unfairness in this case).

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))

1. The Respondent does employ dedicated human resources management specialists. There is no evidence to suggest that the size of the Respondent’s enterprise impacted upon the procedures it followed in effecting the Applicant’s dismissal. Neither party put forward any substantive or relevant submissions that go directly to either of the criteria under ss.387(f) and (g) of the Act. I treat both of the criteria under ss.387(f) and (g) of the Act as neutral considerations in this case, that weigh neither for nor against any finding as to unfairness.

s.387(h) - Any other matters that the Commission considers relevant

1. The Applicant has raised the following matters as “other relevant matters” to be considered by the Commission when determining whether his dismissal was harsh, unjust or unreasonable:

(a)   his age (55 years), and limited skillset, giving rise to limited job prospects, and difficulty in obtaining future employment;

(b)   his length of service with the Respondent (12 years);

(c)   his previous employment on a labour hire basis with the Respondent between 2004 and 2013;

(d)   his clean employment record;

(e)   the deleterious financial impact upon him, and his family (including as to the Applicant being the sole “bread winner”, and his wife’s illness and treatment needs);

(f)    the psychological impact of the dismissal upon him;

(g)   his differential treatment as compared to other employees who have engaged in similar behaviour or acts of misconduct; and

(h)   the sanction of dismissal being disproportionate to the gravity of the Applicant’s conduct.[107]

1. I have had regard to and taken into account the matters set out in sub-paragraphs (a) to (f) of the foregoing paragraph.  I do not consider these matters, in the facts and circumstances of this case, to weigh against a finding that the Applicant’s dismissal was harsh, unjust, and/or unreasonable.[108]  I do not accept that subparagraph (g) (as to differential treatment) has been made out on the evidence, or that the comparisons made are ‘like for like’ comparisons.[109]  Nor do I accept, having regard to the findings I have made in relation to Allegations 1 to 3, that the sanction of dismissal was disproportionate to the Applicant’s conduct. 

1. For completeness, it is also appropriate to squarely engage with the Applicant’s contention that he was singled out, targeted, or treated differently or unfairly because he:

(a)   raised concerns with Mr Arefin (about Mr Arefin’s treatment of him) on 10 December 2024;

(b)   raised concerns with Mr Akhter, Mr Arefin’s treatment of him, on 10 December 2024; and/or

(c)   was a TWU member and delegate (and participated in enterprise bargaining meetings). 

1. In my view, there is no evidential foundation to support the foregoing contentions of the Applicant.[110] None of these contentions explain why the Applicant engaged in the conduct that he did on 10 December 2024. Mr Duck was the ultimate (and sole) decision-maker who made the determination to dismiss the Applicant,[111] and there is no evidence to suggest that Mr Duck’s decision-making process (or his ultimate decision) was infected with any of the Applicant’s contentions. Indeed, Mr Duck was not asked during cross-examination about the Applicant’s union status or activities impacting upon his decision to dismiss the Applicant. Mr Arefin considered it necessary (especially due to the pallet jack incident) to report the Applicant’s conduct on 10 December 2024 to Mr Akhter (including to find out if he needed to report the conduct to anyone else in the business).[112]  This is wholly unextraordinary.  The Respondent considered the veracity of the Applicant’s contentions as to his treatment prior to dismissing him, and found them to be baseless.[113]  I agree with the Respondent’s conclusions in this regard. 

1. All in all, I find that the “others matters” raised by the Applicant under s.387(h) of the Act are neutral considerations, that weigh neither for nor against any finding as to unfairness.

Was the Applicant’s dismissal unfair?

1. 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 therein as a fundamental element in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.[114]

1. In relation to the criterion set out under s.387 of the Act, I have found that:

(a)   the presence of a valid reason for the Applicant’s dismissal weighs in favour of a finding that the Applicant’s dismissal was harsh, unjust and unreasonable; and

(b)   other relevant criterion are either not relevant, or neutral considerations.

1. 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).

1. Section 381 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.”

1. In my view, the outcome in this case is consistent with the object of Part 3-2 of the Act, particularly s.380(1)(a).

1. I will issue an order [PR792202] dismissing the Applicant’s unfair dismissal application, which will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Ms Isabella Wisniewska, Legal Officer at the Transport Workers’ Union of Australia, appeared for Mr Vixon Kumar (Applicant).

Mr Adam Batagello, Partner, Lander and Rogers lawyers, appeared (with permission) for Star Track Express Pty Limited (Respondent).

[1] Duck Statement, at [32], Digital Hearing Book (or Court Book) (CB), p.247.

[2] CB, p.270.  The reason for this appears to be for security and customer requirements.  For example, Apple has a concern that if its goods (or the delivery details of those goods) are compromised via video or photograph, it may open up avenues for criminal behaviour.

[3] Vixon Kumar Statement, 8 April 2025, at [27]-[46], and [113].

[4] Applicant’s Submissions in Reply, 6 May 2025, at [38]. CB, p. 284.

[5] CB, pp.62-65.

[6] Ibid, p.37.

[7] Ibid.

[8] Ibid.  Note: A further allegation was raised, but later not pressed by the Respondent, due to the Respondent finding it did not breach any of the company’s policies and procedures: Duck Statement, Annexure JD-2; CB, pp.216 and 250.  Allegation 3 is referred to in the evidence filed by the parties as Allegation 4.  I reject the Applicant’s contentions surrounding any asserted ‘imprecision’ in the Allegations made by the Respondent against him.  The Applicant was being asked to respond to his conduct on 10 December 2024, which is set out in video footage that was viewed by the Applicant himself.  The outcome of this case does not rise or fall based upon the manner in which the Allegation 1 to 3 were drafted or framed.  The 20 December 2024 Meeting went for around three hours.  If there was any issue or concern as to the manner in which the Allegations were drafted or framed, there was more than ample time and opportunity for the Applicant to clarify things.

[9] Duck Statement, Annexure JD-4. CB, pp.258-262.

[10] CB, pp.66-70.

[11] Duck Statement, Annexure JD-2; CB, p.250.

[12] CB, pp.71-73.

[13] Vixon Kumar Statement, at [152]-[155]. CB, p.97.

[14] Termination Letter dated 28 January 2025. CB, pp.58-60.  Note: The Respondent determined that the Applicant’s misconduct amounted to a breach/es of its policies and procedures.  CB, pp.198-202, and 264.

[15] When a decision-maker makes findings of credit concerning a witness, elaborate detail for such findings are not required, and a detailed explanation for a decision to prefer the evidence of one witness over that of another is not required: Sweeney v He [2023] NSWCA 68, at [182] per Brereton JA, applying Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

[16] [2018] FCCA 933.

[17] Ibid, at [19]-[23], footnotes omitted.

[18] (1964) 38 ALJR 293.

[19] Ibid, at 301.

[20] 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.

[21] 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).

[22] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, at 170-171 (per Mason CJ, Brennan, Deane and Gaudron JJ).

[23]Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (2000) IR 371, at 373.

[24]Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, at 685.

[25] 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].

[26] King v Freshmore (Vic) Pty Ltd[2000] AIRC 1019, Print S4213, at [23] to [24].

[27] Applicant’s Closing Submissions, 4 June 2025, at [3]-[11].  Respondent’s Closing Submissions, 18 June 2025, at [18]-[23]. Applicant’s Closing Reply Submissions, 25 June 2025, at [17]-[21].

[28] Arefin Statement, at [16]-[20], CB, p.231, and [33]-[36], CB, p.233.  See also CB, pp.234-235.

[29] Mr Rawal was not a “floater” on 10 December 2024. He had been directed to work on the blue cages. Transcript, PN718-PN723. In any event, whether or not Mr Rawal was or was not a floater on 10 December 2024 is of no real significance given that he had been directed (by his supervisor) to work on blue cages. See also, Arefin Statement, at [16]-[20], CB, p.231, and Respondent’s Closing Submissions, 18 June 2025, at [14].

[30] Arefin Statement, at [16]-[20], CB, p.231.

[31] Ibid, at [21]-[23], CB, p.232.

[32] CB, pp.234-235.

[33] Ibid, p.236. Transcript, PN690-PN699.

[34] Being Arefin Statement, at [16]-[20], CB, p.231, and at [21]-[23], CB, p.232, and Transcript, PN690-PN699.

[35] CB, pp.258-259.

[36] Ibid, p.203.  Transcript, PN117.

[37] Applicant Statement, at [121]-[125].  CB, p.95.

[38] Applicant Reply Statement, at [19], and [30]-[32].  CB, p.287-288.

[39] Applicant’s Submissions, at [29]. CB, p.81. See also Applicant’s Closing Submissions, 4 June 2025, at [3]-[11].

[40] Applicant’s Reply Submissions, at [2]-[16]. CB, pp.279-280.  See also Applicant’s Closing Reply Submissions, 25 June 2025, at [14]-[21].

[41] Transcript, PN89, PN91, PN123, and PN131-PN132.

[42] Ibid, Transcript, PN106-PN107.  See also, PN120.

[43] Ibid, PN150, PN153, PN165, PN168 and PN173.

[44] Ibid, PN727-PN732.

[45] Ibid, PN739-PN741.

[46] Ibid, PN737-PN741.

[47] Arefin Statement, at [21]-[23], CB, p.232.

[48] Duck Statement, Exhibit 2 (video footage of throwing freight incident) of Exhibit R1.

[49] Transcript, PN150-PN153, and PN165.

[50] Ibid, PN728-PN732, PN738-PN740, PN781-PN782, and PN839.

[51] See Respondent’s Closing Submissions, 18 June 2025, at [20(b)-(d)].

[52] Arvind Kumar Statement, at [12]-[13]. CB, p.272.  Mr Arvind Kumar was a Team Leader on the 10 December 2024 afternoon shift (he was not a floater on that shift); Transcript, PN803-PN806.  See also, Transcript, PN837-PN840.

[53] Arefin Statement, at [21], CB, p.232, and first paragraph of p.235 “noise could be heard from 100 [metres] away”.

[54] Transcript, PN492, and PN781-PN782.

[55] Ibid, PN120 and PN157.

[56] CB, pp.274-275.

[57] Transcript, PN488-PN494, and PN600-PN606,

[58] Ibid, PN758-PN760.

[59] Ibid, PN619, PN621, and PN780-PN782.

[60] Duck Statement, at [10]-[14] “my intended approach [to Allegation 1] changed”. CB, p.243.

[61] Respondent’s Closing Submissions, 18 June 2025, at [13].

[62] See also Applicant’s Closing Reply Submissions, 25 June 2025, at [9].

[63] Applicant’s Closing Submissions, 4 June 2025, at [12]-[22].  Respondent’s Closing Submissions, 18 June 2025, at [24]-[30]. Applicant’s Closing Reply Submissions, 25 June 2025, at [22]-[28].

[64] Transcript, PN292.  Duck Statement, at [26]-[27]. CB, pp.246-247.

[65] CB, p.263. Duck Statement, at [15(b)]. CB, p.243.

[66] CB, p.264.

[67] Mr Duck’s evidence is that these principles encompass the statement “What’s in your hand?”: Transcript, PN622.

[68] Transcript, PN622-PN623.

[69] Duck Statement, at [15(c)], CB, p.244.  See also CB, p.264: “Plan your work”.

[70] CB, p.249.

[71] Transcript, PN531-PN542.

[72] CB, pp.266-269. Duck Statement, at [26]-[27], and [29]. CB, pp.246-247.

[73] Transcript, PN254, PN257 and PN320.

[74] Ibid, PN614.  See also PN554, PN622-PN623, and PN749.

[75] Ibid, PN622-PN623.

[76] The Applicant himself accepts this: Transcript, PN272 and PN277.

[77] CB, p.264.

[78] Arvind Kumar Statement, at [15]-[16], CB, p.272.

[79] Arefin Statement, at [24]-[26], CB, p.232.

[80] Lemalu Statement, at [10], CB, p.276.

[81] Compare, Applicant’s Submissions, 4 June 2025, at [16]-[17].

[82] Note ss.12A and 14 of the Work, Health and Safety Act 2011 (NSW),

[83] Applicant Statement, at [126]-[132], CB, pp.95-96.  Applicant’s Show Cause Response, CB, pp.71-73.  Applicant Reply Statement, CB, pp.285-290.  Transcript, PN182-PN183, PN217, PN287-PN328.

[84] Transcript, PN558.

[85] Ibid, PN566.

[86] Ibid, PN543-PN545.

[87] Applicant Reply Statement, at [37], CB, p.288.

[88] Ibid, at [34], CB, p.288.  Transcript, PN182-PN183, PN217, PN287-PN328.

[89] Duck Statement, at [23]-[25], [30]-[31], [34] and [38], CB, pp.245-248.

[90] Duck Statement, Exhibit 1 (video recording of pallet jack incident) of Exhibit R1.

[91] Applicant’s Show Cause Response, CB, p.71 (last paragraph).

[92] Transcript, PN612-PN613, and PN778.

[93] Applicant’s Closing Submissions, 4 June 2025, at [23]-[27].  Respondent’s Closing Submissions, 18 June 2025, at [31]-[35]. Applicant’s Closing Reply Submissions, 25 June 2025, at [29]-[31].

[94] Duck Statement, at [33]. CB, p.248.

[95] Ibid, at [32]. CB, p.247. The fact that Mr Duck did not attend all consultative meetings is not to the point. The Applicant himself produced not documentary evidence that he had previously shown videos or photos to management, or shown them at consultative meetings.

[96] Arvind Kumar Statement, at [17]-[20], CB, pp.272-273.

[97] Daniel Dewildt Statement, at [9], CB, p.239.

[98] CB, p.270.

[99] 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.

[100] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.

[101] 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].

[102] [1996] IRCA 568.

[103] Duck Statement, at [10]-[22]. CB, pp.243-245.

[104] Ibid.

[105] Applicant’s Submissions, 4 June 2025, at [15] and [21].

[106] CB, p.67.

[107] Transcript, PN25-PN27.  Applicant’s Submissions, at [38]-[42], CB, pp.82-83.  Applicant Statement, at [1]-[26], CB, pp.86-88.

[108] I note that this is the same conclusion that the Respondent arrived at when making its decision to dismiss the Applicant: see Termination Letter dated 28 January 2025, CB, pp.58-60.

[109] Duck Statement, at [34]-[38]. CB, p.248.  See also paragraphs [42] and [51(e)] of this decision, which I also apply for the purposes of s.387(h).

[110] Transcript, PN528-PN530, PN677-PN687, PN694-PN717, and PN764-PN766, PN774

[111] Ibid, PN577 and PN580.

[112] The fact that the Applicant also contacted Mr Javid Akhter, Star Track Production Supervisor, to complain about Mr Arefin does not sustain the Applicant’s contention that Mr Arefin was harassing him.  Indeed, the Applicant’s contact with Mr Akhter came after the Applicant had engaged in the conduct giving rise to Allegations 1 and 2 (which the Applicant fails to make mention of or otherwise acknowledge in his evidence: Applicant Statement, at [56]-[65]).  It is also noted that there is no evidence that Mr Arefin was aware that the Applicant had made a complaint about him, before Mr Arefin (himself) reported the Applicant’s conduct to Mr Ahkter.

[113] See Termination Letter. CB, pp.58-60.

[114] 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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