[2021] FWC 2805

The attached document replaces the document previously issued with the above code on 24 May 2021

Typographical amendment at [92].

Associate to Deputy President Anderson

Dated 25 May 2021

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Darren Bradley
v
Solarig Australia Pty Ltd
(U2021/2211)

Application for an unfair dismissal remedy – whether dismissed – alleged repudiation by employer – withdrawal of company car following accident – continuing employment following withdrawal of benefit - section 386(1) Fair Work Act 2009 – meaning of “termination”– distinction between employment contract and employment relationship – meaning of section 386(2) and concept of demotion – relationship between sections 386(1) and (2) – dismissal found – date dismissal took effect – application within time – whether harsh, unjust or unreasonable – dismissal unfair – remedy – reinstatement to former position

[1] On 17 March 2021 Mr Darren Bradley (Mr Bradley or the applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to an alleged unfair dismissal by Solarig Australia Pty Ltd (Solarig, the employer or the respondent). Mr Bradley claims to have been dismissed on 28 February 2021 whilst employed as an electrician at Solarig’s solar farm in regional South Australia.

[2] Solarig oppose the application and raise two preliminary issues. Firstly, that Mr Bradley continues to be employed, and was not dismissed. Secondly, that if Mr Bradley was dismissed (which is denied), the date his dismissal took effect was earlier than claimed such that the application is out of time.

[3] Solarig also contend that, in any event, its actions were not unfair and no issue of remedy arises.

[4] In response, Mr Bradley says that whilst he continues to work for Solarig as an electrician, Solarig dismissed him by repudiation of his contract of employment when it unilaterally withdrew access to a company car being used for private purposes following an accident with a kangaroo whilst driving to work. He says the dismissal took effect when he realised Solarig had not compensated him for the value of the car in his next pay packet. Whilst contending that his application is not out of time, he says that there are exceptional circumstances warranting an extension, should that be required.

[5] Further, Mr Bradley says that his actions at the time and following the accident were reasonable and did not warrant his alleged dismissal. He seeks to be provided an alternate vehicle or compensation for the loss of the value of private use of the car, back paid to when the benefit was withdrawn.

Case background

[6] Conciliation was conducted by a staff conciliator on 6 April 2021. The matter did not resolve.

[7] I issued directions on 14 April 2021. All matters were listed for hearing – jurisdiction, merit and remedy. Materials were filed by both parties in advance of the hearing. These were subsequently incorporated into an electronic court book. Member Assisted Conciliation did not proceed in light of the employer’s view that further conciliation would be unproductive.

[8] I heard the matter by video conference on 12 May 2021.

[9] In advance of the hearing I granted permission for Solarig to be represented. 1 Mr Bradley was self-represented. I provided a measure of assistance to Mr Bradley during the proceedings to present his case and test that of the employer, consistent with my independent statutory obligations.

Evidence

[10] I heard evidence from three persons:

•  Darren Bradley (applicant);

•  Jose Flores (Solarig Country Manager); and

•  Luke Collins (Solarig Operations Manager).

[11] Mr Bradley was an impressive witness. He gave evidence forthrightly and without embellishment. He readily made concessions where necessary, and was clear in his recall of the incident with the kangaroo. His evidence of how his employment came to be was concise and supported by the documentary record. Where his memory was not clear, he readily said so.

[12] Mr Flores gave evidence conscientiously, but was not directly involved in the incident with the kangaroo and its investigation, and only peripherally involved in engaging Mr Bradley as an employee. He was ultimately the decision maker about the withdrawal of the company car, but did not speak to Mr Bradley about either the incident or that decision. His evidence was necessarily dependant in large measure on second and third hand hearsay from his managers. That being so, on some factual matters Mr Flores was uncertain, including on how Mr Bradley’s group tax certificate came to record a fringe benefit.

[13] Mr Collins was direct in his evidence. He was involved in the engagement of Mr Bradley and in communicating the decision to withdraw the company car for personal use. He was not directly involved in the kangaroo incident and largely relied on others to conduct the investigation. On some matters particularly concerning the kangaroo incident, his evidence involved assumptions and opinions. However, on other matters, Mr Collins’s evidence was clear.

[14] In view of the concessions made by Mr Bradley in his evidence, and the documentary record relied upon by all witnesses, the facts in dispute are narrow. Whilst all witnesses were honest, the clarity and precision of recall by Mr Bradley leads me to prefer his evidence where there is conflict particularly as to the kangaroo incident.

Facts

[15] I make the following findings based on the evidence and material before me.

Solarig

[16] Solarig Australia is part of the global Solarig business which builds and operates solar photovoltaic plants globally. In Australia, it has a plant some six kilometres out of Port Augusta in northern South Australia (Bungala solar farm), and elsewhere. The Port Augusta solar farm has a perimeter of approximately six square kilometres.

Engagement of Mr Bradley

[17] Mr Bradley lives in Quorn, South Australia, adjacent the Flinders Ranges, some forty kilometres by road from Port Augusta and the Bungala solar farm.

[18] In February 2019 Solarig (Mr Collins) commenced discussions with Mr Bradley about joining the company as an electrician based at the Bungala solar farm. Mr Bradley had worked on the construction of the solar farm and was site familiar. Terms were discussed, including that a company car was available including for an employee’s private use to and from work. A text message sent by Mr Collins to Mr Bradley on 1 February 2019 read: 2

“Hi Darren

As discussed could you please send me a copy of your CV preferably this evening. So I can present to my boss tonight. We have a couple of candidates but being site familiar is a big advantage.

38hr week

New dual cab ute

Approx $40p/h

On call rotation roster for Weekends pub holidays etc

Morning or arvo shift to cover daylight hours

Looking for an asap start

Thanks mate”

[19] Mr Bradley then received a written job offer. 3 It read:

“Job offer

Solarig has the intention to hire Mr Darren Bradley through Solarig Australia Pty Ltd with registered offices at St Martins Tower 31 Market St, Sydney NSW 2000, Australia.

Contractual Information

Starting Date: ASAP, preferably February 11^th 2019

Position: Electrician

Type of Contract: 5 years

Probationary Period: 3 months

Workplace: Bungala Solar Farm, Port Augusta (South Australia)

Others: 38 hours/week + 2 days per month on call service

Remuneration

Annual Gross salary: AUD 85,000 + Superannuation

Benefits

Company car

The company will provide the employee with the material necessary for the proper performance of his duties. Due to the Company’s international presence, possible trips are foreseen at national/international level.

This offer will be valid until Feb 8^th 2019.

[20] On 4 February 2019 Mr Collins sent a further text message to Mr Bradley: 4

“Hi Darren

Just following up to see if you received job offer from my boss ok?

If your happy can you pls sign letter of offer this evening and return as I need to get the ball rolling asap?

Thanks

Luke”

[21] Mr Bradley accepted and signed the Job Offer, and returned it to Solarig. He commenced work on 11 February 2019.

[22] Solarig’s human resources practice was to have an employee sign a Job Offer, and then the company would prepare a more detailed letter of employment for further signature. Solarig did so. By letter dated 11 February 2019, a seven page letter of employment was prepared. It was signed by two Solarig representatives. It included, at its foot, provision for Mr Bradley to acknowledge and accept its terms, and sign.

[23] The letter of 11 February 2019 set out multiple terms and conditions under the following headings: Your Position, Term, Remuneration, Hours, Superannuation, Probationary Period, Duties and Responsibilities, Employment Policies and Procedures, Your location, Internet and Computer Use, Annual Leave, Public Holidays, Personal/Carers Leave, Long Service Leave, Notice of termination, Confidential Information, Conflict of Interest, Personal Information, Restraints and Other Matters.

[24] The letter of 11 February 2019 is silent on the issue of a company car, let alone usage for private purposes.

[25] With respect to remuneration, the letter provided a base salary of $85,000 plus 9.5% superannuation, being a package of $93,075.

[26] Under the heading “Other matters”, the letter provided: 5

“20.1 This Agreement constitutes the entire agreement between the Company and you with respect to your employment, and supersedes and replaces all prior representations and agreements concerning you employment with the Company.

20.2 Any amendment or addition to this letter of offer must be in writing, and signed by both parties.

20.3 Each provision of this letter of offer is severable from the others and the severance of a provision does not affect the remainder of the document.

20.4 This letter of offer is governed by the laws of the State of South Australia.

20.5 You agree that the terms of this document continue to apply unless varied in writing in accordance with this contract.

20.6 A single or partial exercise of a right under this letter of offer does not prevent any other exercise of that right. Further, a waiver of a right under this letter does not prevent the exercise of any other right.”

[27] There is a factual difference as to whether this letter was given to Mr Bradley on or around 11 February 2019. Mr Bradley cannot recall this occurring. Solarig believe it was sent, consistent with its human resources practices, but have no record of it being provided at that time. There is no evidence before me of Mr Bradley having signed or returned a copy at or around that time, had it been sent.

[28] In August 2020, some eighteen months later, an issue arose between Mr Collins and Mr Bradley which made it necessary for Mr Collins to check Mr Bradley’s terms of employment. Mr Collins located in company records a copy of the letter of 11 February 2019 as appears in exhibit A1 Attachment 7 (unsigned by Mr Bradley).

[29] On 19 August 2020 Mr Collins sent Mr Bradley an email as follows: 6

“Hi Darren

I spoke with HR they could only find a duly signed original on file but without your signature. Could you please have a look at this duly signed copy and sign and return to me.

Thanks Darren.

Kind regards

Luke Collins”

[30] On or about 19 August 2020 (2020, not 2019), Mr Bradley signed and returned the letter of 11 February 2019 (still dated that date) which was then duly placed into company records. 7 There was no negotiation or discussion about the letter.

[31] Upon signing the letter in August 2020, Mr Bradley continued to work as he had prior to signing. No conditions or benefits changed.

Provision and use of company car

[32] Upon Mr Bradley commencing work on 11 February 2019, Solarig ordered a number of new vehicles but they had yet to arrive. Mr Bradley and other employees were awaiting their arrival so they could be used on site and for limited personal use.

[33] Mr Bradley had been told by Mr Collins when the offer of employment was made that Solarig’s practice would be to allow limited personal use of the company cars. Mr Bradley understood this to mean travel to and from work, and minor diversions such as to drop children off at school.

[34] On 24 April 2019 Mr Collins sent Mr Bradley a text message indicating that delivery of the new vehicles (about three dual ute vans) to site was “about 30 mins away”. 8 The vehicles arrived that day. Mr Bradley was given the keys to one of the vehicles, a Toyota Hilux. A spare set of keys was kept in the glove box. Mr Bradley took possession of the keys after being given and signing a “Handover” document. It provided, in part:9

“Handover

The Company agrees to provide Mr Darren Bradley a vehicle in order to carry out his work according to the following characteristics: brand Toyota, model Hilux SR, registration number and Colour White.

Mr Darren Bradley is the only person authorised to drive this vehicle outside of the Solar farm.

…………

The following are being handed over along with the above and said vehicle:

Second Key

…………

Employee Responsibilities

It is necessary to notify the fleet manager of:

•  the monthly mileage, the fuel and electronic toll collection receipts, if applicable.

•  the vehicle preventive maintenance performed regularly, periodic checks and punctual servicing and repairs. All of them are the responsibility of the employee.

•  The interventions carried out reporting these receipts.

On the other hand, it is expected from the Employee:

•  to maintain the vehicle in good condition, both inside and out including cleanliness.

•  to take appropriate precautions when driving and to make safe driving a priority.

•  to keep his/her driving licence valid.

•  to use for job purposes, eventually the employee could be authorised to use it privately.

•  limited person use.

•  Km limit per year: 20.000km

•  To communicate any accident with the highest urgency to: XXXXXXX and XXXXXXX 10.

•  to ensure the vehicle does not leave the state without written authorization from the O&M manager.

•  to immediately notify the O&M manager if there is any loss or restriction of drivers license.

•  to take photos of all damage to vehicles before leaving the accident scene, along with gathering the contact details of all other parties from the accident and notifying the authorities as required.

Expenses

……………..

Return

If working relations end and also if the employee ceases to work for Solarig or fail to have a valid and updated driving license, Mr Darren Bradley shall immediately return to the Company the vehicle, the keys and any other device related to it.

In case of acting wrongly, the Employee accepts that the Company shall retain the amount of money requested to reach the equivalent of the vehicle value, being able to take the correspondent legal actions.

Place and date: Bungala SF Port Augusta 24/04/2019

[35] From that date, 24 April 2019, ten weeks after commencing, Mr Bradley drove the company vehicle to and from work, a distance of some eighty kilometres return per day.

[36] In the ten weeks prior to the company vehicle being delivered, Mr Bradley drove his own private motor car to and from work.

[37] At around the time the vehicle was delivered, the other new vehicles were made available to other employees who similarly drove them to and from work.

[38] At the worksite, the vehicles were pooled. As the site was large, the vehicles were regularly used to drive around the site. Any employee who needed to do so could use any of the vehicles, including the one allocated to Mr Bradley. This commonly occurred. As the spare keys were in the glove box, Mr Bradley was not required to hand over the keys.

[39] The Toyota Hilux was not the only company vehicle used by Mr Bradley to travel to and from work. During 2020, a manager needed to drive the vehicle to Queensland. In this period, Mr Bradley was provided access to an alternate dual ute vehicle. Later in 2020, a new pool of vehicles were purchased and Mr Bradley started using a newer Toyota Hilux.

[40] Though the handover document limited use to 20,000km per year, over the eighteen month period in which Mr Bradley had the vehicle it clocked up approximately 70,000km. Mr Bradley accepted in his evidence that since 24 April 2019 he had allowed his own private vehicle registration and insurance to lapse and used the company vehicle for all purposes including private trips to Adelaide. He would fuel the vehicle at his cost for a portion of those trips.

[41] This remained the situation until 3 February 2021.

Kangaroo incident

[42] On 3 February 2021 Mr Bradley was rostered to commence work at around 6am. At about 5.40am 11 as he was driving to work on the open and sealed country road through the ranges heading from Quorn to Port Augusta, and still some twenty kilometres distant from Port Augusta, a kangaroo appeared from his right and struck the right side of the vehicle. The right side airbag deployed. The driver’s seat belt locked.

[43] It was dark, “pitch black” according to Mr Bradley 12.

[44] Mr Bradley controlled the vehicle. It remained on the road. An overtaking lane emerged some 500 or so metres ahead. Mr Bradley pulled to the side. Using a torch 13, he inspected the vehicle. He prised some damage from around a wheel arch and satisfied himself that the car could continue to be driven. He proceeded to drive, at a slower pace, the remaining twenty kilometres to the worksite.

[45] I accept Mr Bradley’s evidence that at the location of the incident there was no mobile phone coverage. It is a remote location, adjacent the Australian outback, north of the Goyder Line and via the Pichi Richi pass. I accept Mr Bradley’s evidence that reliable mobile phone coverage only emerges kilometres away once out of the ranges and on the plains approaching Port Augusta.

[46] Upon arriving at the Bungala solar farm, Mr Bradley reported the incident. Solarig assessed the car as unroadworthy and it was sent for repairs.

Withdrawal of use of company car

[47] On 3 February 2021, with the Toyota Hilux damaged, Mr Bradley was driven home by another employee. He waited that afternoon, and then the next morning, for advice from a supervisor about whether an alternate vehicle would be supplied. When not contacted, he drove his private car to work, arrived late, and was told that Solarig was disappointed that he had been a ‘no show’.

[48] Either on 4 February 2021 or in the days that immediately followed, Mr Bradley was told by Mr Collins that he would no longer be allowed to drive company cars to and from home; that he would not be provided a replacement car for private use; and that he would only be allowed to drive a company car from the pool of cars and only on site.

[49] These decisions were made by Mr Flores. Mr Flores also applied this decision to other employees, who had their use of cars for private purposes withdrawn.

[50] Having had personal use of a car withdrawn, Mr Bradley immediately re-registered and re-insured his private vehicle and used it (and continues to use it) to travel to and from work.

Investigation

[51] Even though an immediate decision was made in the wake of the kangaroo incident to withdraw his permission to use the company car for private purposes, an investigation into Mr Bradley’s conduct relating to the accident and his use of the company car took place over the following weeks. It was conducted by a supervisor and a safety officer, reporting to Mr Collins.

[52] Mr Bradley was spoken to by the supervisor and the safety officer, and gave his version. He was not spoken to by Mr Flores either in the context of the initial decision to withdraw permission for personal use or the subsequent decision to take disciplinary action.

[53] I make these findings primarily on Mr Bradley’s evidence and having regard to the evident shortcomings (considered later in this decision) in the evidence of Mr Flores and Mr Collins about the incident and its investigation.

[54] Mr Collins and a supervisor met with Mr Bradley on 4 March 2021. They advised him of the outcome of the investigation. Solarig considered a disciplinary sanction warranted. It concluded that Mr Bradley had breached company values and polices. It was alleged:

•  “Darren hit a Kangaroo”;

•  he failed to immediately call a manager or a supervisor; and

•  his decision to drive an unroadworthy and unsafe car was “reckless, dangerous and not to mention illegal”.

[55] Mr Bradley was issued a written “first and final warning” 14.

[56] The first and final warning also raised two unrelated matters – a claim that Mr Bradley had raised a site safety concern with a client rather than with the company; and that he had been inflexible in accommodating a request for a change in hours.

Decision to litigate

[57] Mr Bradley considered the disciplinary warning unfair.

[58] He also considered withdrawal of the personal use of the car to be contrary to his contractual rights.

[59] No longer having the benefit of personal use and considering he had a contractual right to personal use, in the days and weeks following 3 February, Mr Bradley decided to wait and see if he was going to be financially compensated for the loss of the benefit in his next pay packet. Aside from briefly raising that question when first informed of the withdrawal, he did not again broach that subject with Solarig either during the investigation or independent of it.

[60] Mr Bradley was paid monthly. His next pay day was towards the end of February. A pay slip dated 23 February 2021 for the period 1.2.21 to 28.2.21 was sent to him on or about 23 February 15. He read the pay slip. No adjustment had been made to his salary. He had not been financially compensated for loss of the benefit.

[61] In light of not being compensated and in light of the 4 March 2021 disciplinary warning, Mr Bradley took action to ascertain his rights. He contacted the Fair Work Ombudsman and was advised of a right to make unfair dismissal claims in the Commission. He contacted the Commission and was referred to a legal advisory service.

[62] Mr Bradley decided to lodge an unfair dismissal claim. He did so on 17 March 2021 on-line and under his own hand. He claimed that he had been dismissed on 28 February 2021. That date aligns to the end of the February 2021 pay period though it is unclear from Mr Bradley’s evidence why that date was chosen.

Consideration

Issues to be determined

[63] Four issues potentially arise in determining this matter:

1. Was Mr Bradley dismissed within the meaning of the FW Act;

2. Is Mr Bradley’s unfair dismissal application out of time, and if so, should time be extended?

3. If dismissed, was Mr Bradley’s dismissal harsh, unjust or unreasonable?

4. Should a remedy for unfair dismissal be ordered and if so what?

[64] Question 2 depends in part on the answer to question 1, and in particular the date dismissal (if any) took effect.

[65] Question 3 only arises if there was a dismissal and the application is within time (either because it was filed within time or the time for filing has been extended).

[66] Question 4 arises only if there is a dismissal, an application within time and an unfair dismissal.

[67] I am satisfied, and at this juncture find, that Mr Bradley was a person protected from unfair dismissal within the meaning of section 382 of the FW Act.

Was Mr Bradley dismissed?

[68] The jurisdictional issue requiring determination is whether Mr Bradley was dismissed by Solarig.

Submissions on dismissal

[69] Mr Bradley submits:

•  it was a term of his employment that he be provided a company car including for certain personal use;

•  the personal use component equated to a 15% value of his remuneration package;

•  Solarig unilaterally withdrew access to the company car for personal use following the kangaroo incident and did not otherwise compensate him for loss of that benefit;

•  in doing so, Solarig repudiated his contract of employment and that act of repudiation was a dismissal;

•  whilst he continues to work for Solarig, he now does so under a separate employment arrangement with 15% less value; and

•  he was dismissed when it became apparent at the end of February 2021 from his monthly payslip that Solarig had not compensated him for loss of the benefit.

[70] Mr Bradley relies on:

•  the text message sent by Mr Collins on 1 February 2019 prior to his employment referring to a “new dual cab ute”;

•  the signed job offer of 4 February 2019 referring to “Benefits: Company car”;

•  the daily practice from 24 April 2019 to 3 February 2021 whereby he drove a company car to and from work and for personal purposes (Quorn to Port August return);

•  his ATO Group Certificate 2019-20 which included a “reportable fringe benefit” of $15,351; and

•  an assessment by the Child Support agency of his income as including (it is said) the fringe benefit value.

[71] Solarig submits:

•  Solarig did not dismiss Mr Bradley because he remains employed doing the same job;

•  Solarig did not repudiate Mr Bradley’s contract of employment because it was not a term of his employment that he be provided a company car for personal use. Personal use by employees was at the company’s discretion from a pool of cars;

•  in any event, Mr Bradley was not dismissed for unfair dismissal purposes because the employment relationship continued irrespective of the contractual terms and the unfair dismissal provisions of the FW Act concern termination of the employment relationship not the employment contract; and

•  in any event, the loss of the alleged benefit was not a “significant reduction” within the meaning of section 386(2)(c)(i) of the FW Act.

[72] Solarig relies on:

•  the employment contract of 11 February 2019 between itself and Mr Bradley which makes no provision for a company car or comparable personal benefit;

•  the vehicle ‘handover’ document of 24 April 2019 which provided a vehicle “to carry out work”;

•  the vehicle used by Mr Bradley was from a pool of cars located on site and a number of different vehicles were used by Mr Bradley and the car allocated to him was used by others; and

•  Mr Bradley did not adhere to the Employee Responsibilities in the handover document both prior to and at the time of the kangaroo incident.

Statutory provisions

[73] Whether an employee has been dismissed for the purposes of an unfair dismissal application under Part 3-2 of the FW Act is to be assessed by reference to the statutory definition of dismissal in section 386. Section 386(1) provides:

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[74] Relevantly, section 386(2)(c) provides:

(2) However, a person has not been dismissed if:

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

[75] Whether Mr Bradley was dismissed falls to be determined according to the relevant statutory provisions considered in context, not the common law doctrine of contractual repudiation. Whilst that doctrine may assist an assessment of whether Mr Bradley’s “employment has been terminated on the employer’s initiative”, it is the statutory provisions which determine this matter.

The employment relationship

[76] The employment relationship is inherently a contractual one 16. Whilst it is necessary for a contact of employment to have existed for there to be “employment” from which a person is terminated, a starting point is to recognise that applications under section 394 concern themselves with termination of the employment relationship and not necessarily termination of the contract:17

“[50] Thus it is clear, contrary to the first proposition stated in Lunn to which we have earlier referred, that a termination of the employment relationship might constitute a termination at the initiative of the employer under the WR Act notwithstanding that the contract of employment remains on foot. That is, under the WR Act, termination at the initiative of the employer did not, on its ordinary meaning, refer to termination of the contract of employment. The first proposition in Lunn to which we have earlier referred was therefore not a correct statement of the law under the WR Act, and as a result the Full Bench’s analysis in Lunn proceeded on the wrong premise that it was necessary to analyse whether the final employment contract was terminated at the initiative of the employer, not whether the employment relationship was terminated at the initiative of the employer. The correct position remained as stated in Mohazab, namely that a termination of employment at the initiative of the employer occurs where the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.”

[77] What then of circumstances, such as those in this matter, where it is said (by Mr Bradley) that two contracts of employment existed on different terms whereby work continued uninterrupted under the second but that the employee had been “dismissed” from the first because of the employer’s alleged repudiatory conduct?

Finding of fact – was Mr Bradley entitled to the claimed benefit?

[78] In order to determine whether Mr Bradley was dismissed, two further issues of fact require determination.

[79] Firstly, was it a term of Mr Bradley’s contract that he be provided a company car for limited personal use?

[80] I conclude that it was. I find that Mr Bradley had a contractual right under which he was entitled to limited personal use of a company car. The Job Offer he signed and was employed under in February 2019 specifically referenced a company car as a benefit. The handover document contemplated the vehicle being used for “job purposes” and “the employee could be authorised to use it privately” and for “limited person use”. The fact that the handover document provided that Mr Bradley was the only person who could “drive this vehicle outside of the solar farm” also supports this conclusion. The words “outside the solar farm” contemplate driving outside the work premises and do not exclude doing so for both work and private purposes. I also find that Mr Collins told Mr Bradley at the time of engagement that he could use a company car to drive himself to and from home with minor deviations. I am satisfied that Mr Bradley agreed to be employed based on that representation.

[81] Further, the conduct of the parties over the twenty two months of Mr Bradley’s employment provides a strong basis for this conclusion. On almost each working day between 24 April 2019 and 3 February 2021, Mr Bradley drove the company car to and from work with the knowledge of the company, having been provided keys to its vehicle. This was done without demur. Whilst the evidence of Mr Flores and Mr Collins was that provision of the company car was at the company’s discretion, and whilst the handover document certainly contemplated private use only as authorised, I am satisfied that the aforementioned conduct constituted that authorisation and that the authorisation had not been withdrawn until on or around 4 February 2021.

[82] I do not consider that the absence of any reference to the benefit of a company car for personal use in the letter of 11 February 2019 to alter this conclusion. Even were I satisfied, on the balance of probabilities, that the letter had been sent to Mr Bradley at that time (a finding I need not make and which on the evidence before me cannot safely be made), the written and signed job offer provided before the letter was prepared, the handover document operative after the letter was prepared and the conduct of the parties both before and after the letter was signed in August 2020 are sufficient to establish the benefit as an agreed term between the parties despite the 11 February 2019 letter proclaiming that the terms set out are exhaustive of the employment terms. By both other written terms and conduct, they were not.

[83] Nor do I consider the fact that the Toyota Hilux was part of a carpool, and from time to time used by others, to detract from this conclusion. The representations that formed part of the enticement to secure Mr Bradley’s employment were (as per the job offer) a “company car” and (per the pre-offer text) a dual cab ute. When the Hilux was used by others, Mr Bradley was provided access to an alternate dual cab ute for private purposes.

[84] I therefore conclude that Mr Bradley had a contractual right to use a company car for limited private purposes.

Finding of fact – did Solarig withdraw the benefit without cause?

[85] Secondly, did Solarig unilaterally withdrew the contractual term in a manner not permitted by the contract?

[86] It is not in dispute that Solarig withdrew the benefit unilaterally on 3 or 4 February 2021. It did not wait for the result of the investigation; it did so simply on account of the kangaroo incident.

[87] Mr Bradley was in breach of the 20,000km per year driving limitation set out in the handover terms. He took excessive and unauthorised liberties with the “limited personal use” condition including by regular driving to Adelaide and elsewhere. However, as the car was pooled and as other employees (including managers) had access to it and drove it, the employer readily had scope to inform itself of the vehicle mileage, and ask questions. It did not. One would only have needed to look at the speedometer to ascertain the total kilometres driven since handover.

[88] Further, whilst the provision of the benefit required authorisation by Solarig, the contract did not provide Solarig with a unilateral right, express or implied, to withdraw the benefit once established as a term of Mr Bradley’s contract.

[89] I conclude that whilst the evidence does support a finding that Mr Bradley was in breach of some of the terms of the vehicle handover (for example, not limiting usage to 20,000km per year), he complied with other terms (such as maintaining the vehicle in good order). I do not consider that breach of the terms of the handover by Mr Bradley provided a basis for the unilateral withdrawal of the contractual benefit.

Can Mr Bradley rely upon section 386(2)(c) to establish a dismissal?

[90] Given these findings, was Mr Bradley dismissed?

[91] Whilst section 386(1) of the FW Act defines when a person has been “dismissed”, one approach, in circumstances where an employee continues in employment but claims to have been dismissed on account of the employer’s conduct, is to simply apply section 386(2)(c) of the FW Act.

[92] On this approach, section 386(2)(c) operates as a code within Part 3-2 that does not require a person who has continued in employment to meet the definition of dismissal in section 386(1). Under this construction, section 386(2)(c) creates a category of dismissed employee where the person continues in employment but has not been “demoted” within the meaning of section 386(2)(c) because each of sections 386(2)(c) (i) and (ii) do not apply to the given facts. Such decisions construe section 386(2) as deeming a dismissal to have occurred in circumstances where the statutory definition of demotion is not made out.

[93] An example of the aforementioned approach is the single member decision in Scott Harrison v FLSmidth Pty Limited. 18 It was held that as the employee was not “demoted” within the meaning of section 386(2)(c), then they were dismissed within the meaning of section 386.

[94] Were this approach to be applied in the present case, it would be readily open to conclude that Mr Bradley had been dismissed. Although his duties did not change and he remained in employment, the removal of the benefit in February 2021 was (for reasons set out later) a “significant reduction” in remuneration within the meaning of section 386(2)(c)(i) – thus he was not “demoted” within the meaning of the FW Act.

[95] However, to so conclude requires adoption of the aforementioned approach to the construction of section 386.

[96] Whilst the issue of the relationship between sections 386(1) and 386(2) of the FW Act is vexed, I respectfully do not consider that approach to be correct.

[97] I conclude that the correct construction of section 386, in circumstances where an employee continues in employment but claims to have been dismissed on account of the employer’s conduct, is not one where section 386(2) creates a class of deemed dismissals. I prefer a construction whereby a person who has not been demoted within the statutory definition in section 386(2)(c) is still required to meet the statutory definition of dismissal in section 386(1) in order to have been “dismissed” within the meaning of the FW Act.

[98] I do so for the following reasons.

[99] Firstly, the statutory language. The construction I prefer is a more natural and less strained reading of the statutory language. Section 386(1) is stated to describe “when a person has been dismissed. Section 386(2) is stated to provide “when a person has not been dismissed”. Section 386(2) follows both in sequence and language as an exclusion to section 386(1). As said by a full bench of the Commission in Phillip Moyle v MSS Security Pty Ltd: 19

“[9] Section 386(1) sets out a general definition of what constitutes a dismissal. Section 386(2) then sets out three sets of circumstances which, even if they fall within the general definition, are deemed not to be dismissals. These are, in effect, exceptions to s.386(1).”

[100] This approach (considering 386(1) and not solely 386(2)(c)) has been applied in some subsequent decisions of the Commission 20. In Broadlex, the Federal Court recently observed (in obiter) that “s 386 does not erect a class of deemed dismissals”21.

[101] Secondly, the statutory context. Section 386(2)(a) deals with time or task limited contracts. It operates as a pure exclusion. A termination that is not time or task limited within the meaning of section 386(2)(a) still needs to run the gauntlet of section 386(1) to be a dismissal; for example, it needs to be a termination on the employer’s initiative or a forced termination. A similar approach applies to section 386(2)(b) which deals with time limited training arrangements.

[102] A further contextual consideration is section 386(3). This is an anti-avoidance provision applicable to sub section (2)(a). It has the effect of making “sub section (2) not apply” in a (2)(a) instance where the employer’s intention is to avoid obligations. If sub section (2) does not apply in that instance, and if sub section (2) were to operate as deeming a dismissal to have occurred without recourse to section 386(1), then there would be no statutory provision left establishing a dismissal for the purposes of the cause of action.

[103] Thirdly, the legislative purpose. The statutory objects in section 381 establish an unfair dismissal scheme that requires a “fair go all round” to be afforded that “balances” needs of employers and employees 22. If, where an employee continues in employment, section 386(2)(c) itself deemed a dismissal where sub sections (i) and (i) are not made out, then no factor other than a significant reduction in remuneration or duties would be relevant to whether there had been a dismissal. Recognising that “remuneration” is a wider concept than merely wages (and could, for example, include a company vehicle or car allowance), and whilst remuneration and duties are certainly relevant factors (indeed, likely to be primary ones), non-demotion does not necessarily equate to dismissal. When considering if a person has been dismissed because they have been employed on varied terms, there are other relevant factors in addition to remuneration or duties which, in fairness, may arise and warrant consideration – for example, is the person working in the same location, or has the person’s non-remuneration terms of employment been compromised or enhanced (such as leave, rosters, hours, training), or are there relevant changes to status or seniority, or have any or all of the changes been agreed.

[104] Each of these factors are capable of consideration under section 386(1), but only two such factors (remuneration and duties) fall to be considered under section 386(2)(c). The latter approach risks failing to provide a fair go all round as it would only allow two of the relevant considerations (remuneration and duties) to be considered.

[105] A number of examples illustrate the potential unfairness in construing section 386(2)(c) in this manner.

[106] An employer increasing a person’s leave entitlement (such as annual leave quantum) by a set value to the overall package in lieu of withdrawing a significant remuneration entitlement of equivalent value, with all other conditions remaining unchanged and work continuing uninterrupted. In fairness, that employer is entitled to contend that they had not dismissed the employee. Such a contention would not be open if section 386(2)(c) alone was considered.

[107] Similarly, an employer who has significantly altered an employee’s duties but not their remuneration would necessarily be said to have dismissed the person even if the alteration was temporary or accompanied by enhanced remuneration or other enhanced employment conditions, or agreed.

[108] The potential unfairness may cut both ways. An employee who has had neither their remuneration or duties significantly reduced, but who has had their non-remuneration terms of employment substantially and unilaterally reduced would have no scope to contend that they had been dismissed within the meaning of section 386(1).

[109] Similarly, an employee who has had neither their remuneration or duties significantly reduced but who has a contractual right to work, for example, day shift only yet is then unilaterally rostered to work, for example, exclusively night shift, would have no scope to contend that they had been dismissed from their employment.

[110] I therefore conclude that non-demotion within the meaning of section 386(2)(c) does not necessarily constitute dismissal. Only where sections 386(1)(a) or (b) are made out has a person who is a continuing employee been dismissed within the meaning of the FW Act.

Was Mr Bradley dismissed under section 386(1)?

[111] Was Mr Bradley dismissed within the meaning of section 386(1) of the FW Act?

[112] Repudiatory conduct is capable of bringing a contract of employment to an end (once accepted) and may give rise to remedies for breach of contract.

[113] Not every breach of contract is a repudiation and repudiatory conduct is not to be inferred lightly. A repudiatory breach does not automatically terminate the contract but confers an elective right of termination on the innocent party. An actual intention to repudiate is not necessary; the issue is resolved objectively by reference to the effect it would have on a reasonable person. 23

[114] “Dismissal” under section 386(1) of the FW Act requires the employment relationship to have been terminated – a “termination”. An employment relationship is capable of continuing after an act of repudiation 24 though similarly, and perhaps more commonly, a repudiatory breach may also terminate the employment relationship – for example, where no further work is performed and the parties part company because of the breach.

[115] Importantly, and relevant to this matter, there are circumstances where a repudiatory breach that has been accepted has the effect of terminating the employment relationship even where the employee continues working for the employer. This occurs in circumstances where the post-repudiation relationship “was a fundamentally different relationship from the relationship the parties previously enjoyed” 25. In such circumstances, and if the breach was at the initiative of the employer, not only would the employment contract have come to an end but the employment relationship as it was known and had existed would be terminated with the effect that the employee would have been “dismissed” within the meaning of the FW Act.

[116] Was the conduct of Solarig a repudiation of Mr Bradley’s contract of employment?

[117] The concept of contractual repudiation in an employment context was summarised by a full bench of the Commission in City of Sydney RSL & Community Club v Balgowan as follows: 26

“The question whether there has been a repudiation of the contract of employment is determined objectively, it is unnecessary to show a subjective intention to repudiate and is a question of fact not law. Relevantly, for present purposes, repudiation may exist where an employer reduces the wages of an employee without the employee’s consent or where there is a serious non-consensual intrusion on the nature of the employee’s status and responsibilities in a way which is not permitted by the contract. Similarly, if an employer seeks to bring about a change in the employee’s duties or place of work which is not within the scope of the express or implied terms of the contract of employment, the conduct may evince an intention to no longer be bound by those terms. Therefore, in these circumstances if an employee does not agree to the change, which if agreed would amount to a variation of the contract, the employee may claim to have been constructively dismissed.”

[118] More recently, in the context of employee repudiation, a full bench said: 27

“The test for repudiation is whether the conduct of the employee is such as to convey to a reasonable person, in the position of the employer, renunciation either of the contract as a whole or of a fundamental obligation under it. The issue turns upon objective acts and omissions and not on uncommunicated intention.”

[119] The High Court of Australia in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd described the concept in the following terms: 28

“The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.”

[120] The Commission is not a court of law. Only courts can determine contractual rights to finality.

[121] The established approach to contractual repudiation involves a two-step process – whether the relevant unilateral variation(s) was permitted; and, if not, whether it was sufficiently serious or significant to vary the contract in a fundamental manner.

[122] I have concluded that whilst the provision of the benefit to Mr Bradley required authorisation by Solarig, the contract did not provide Solarig with a unilateral right, express or implied to withdraw the benefit once established as a term of Mr Bradley’s contract.

[123] Was the benefit in question a fundamental term of the employment contract? The value of the benefit in the context of Mr Bradley’s contract, and the nature of reliance upon it are relevant to this question.

[124] The evidence before me of the value of the private usage component of the company car used by Mr Bradley is inconclusive. Clearly there is a value to be attributed to a non-monetary benefit of this type. A reportable fringe benefit of $15,351 appears on Mr Bradley’s 2019-20 group certificate 29. I accept Mr Bradley’s evidence that there was no other fringe benefit provided to him other than the company car. Yet the employer’s evidence (hearsay, as it did not call their accountant)30 is that no fringe benefit relating to Mr Bradley was reported to the tax authorities. How a reportable fringe benefit of $15,351 came to appear on Mr Bradley’s 2019-20 group certificate is unexplained. That the employer conceded in evidence that it has taken no steps to investigate this anomaly despite the obvious adverse consequences for Mr Bradley (including, it would appear, a higher income on which child support is assessed) reflects poorly on Solarig.

[125] The approach adopted by the Commission to estimating the value of the private use component of a motor vehicle is drawn from the 1998 decision in H.W. Fewings v Kunbarllanjnja Community Government Council 31. Applying that approach to the limited material before me, an estimate can be made based on a daily 80km home to work to home trip by Mr Bradley across 240 working days per year (five working days per week over 48 weeks) at the industry running cost for a 4WD Ute (0.93c p/km32). This equates to a notional private use value of $17,856 per year or 16.1% of Mr Bradley’s total package.

[126] Factoring in that the private benefit use would be slightly lower given that the authorised private use (to and from work) would not have arisen on days when Mr Bradley may have been on other authorised leave (e.g. personal leave), and given the reportable fringe benefit of $15,351 on Mr Bradley’s 2019-20 group certificate, I estimate the non-monetary value of the benefit to be around 16% of Mr Bradley’s remuneration package.

[127] The evidence of reliance upon the benefit is more clear-cut. Mr Bradley accepted the offer of employment, in part, in reliance on the benefit. The surrounding circumstances support that finding. Immediately upon provision of the benefit, Mr Bradley cancelled the registration and insurance on his privately owned vehicle, and only reactivated that registration and insurance upon the benefit being withdrawn twenty-two months later. Objectively, the benefit had material value to Mr Bradley on which he relied.

[128] Taking these matters into account, I conclude that withdrawal of the benefit was of significance and constituted repudiation.

Conclusion on dismissal

[129] However, as noted, a breach of contract or contractual repudiation by an employer does not necessarily terminate the employment relationship. In cases where employment continues between the parties, termination only occurs when the subsequent employment is so fundamentally different as to constitute a new employment relationship 33.

[130] There are a number of factors which point to the relationship not being fundamentally different once the benefit was withdrawn. These are:

•  Mr Bradley continued to perform the same duties (electrician);

•  Mr Bradley’s status and classification remained unchanged;

•  Mr Bradley continued to work at the same location;

•  Mr Bradley continued to receive the same base salary;

•  Mr Bradley continued to receive the same superannuation entitlement;

•  Mr Bradley’s other terms of employment remained unchanged; and

•  Mr Bradley continued to have access to a company car for work purposes.

[131] Whilst Solarig has a respectfully arguable case that Mr Bradley was not performing a lesser or different job and that its employment relationship with Mr Bradley was not fundamentally different once the benefit was withdrawn, that is not the conclusion I reach on an overall consideration of the evidence.

[132] Notwithstanding the aforementioned factors, I consider they are outweighed by a collective consideration of the following:

•  that withdrawal of the benefit was withdrawal of a term of Mr Bradley’s employment and one upon which he relied;

•  that the withdrawn benefit was significant both in monetary value and as an overall percentage of Mr Bradley’s remuneration package;

•  that Mr Bradley did not agree to withdrawal of the benefit;

•  once the benefit had been withdrawn, Mr Bradley only agreed to continue working under protest at his terms, evidenced by these proceedings and his earlier request for an alternate vehicle;

•  that the benefit had tangible monetary value to Mr Bradley as well as practical value (as transport to and from work each day); and

•  Solarig did not otherwise compensate Mr Bradley by an amount equal to the value of the withdrawn benefit or by any amount.

[133] For these reasons, I conclude that a fundamentally different employment relationship (one of about 16% less value to the employee) existed between Mr Bradley and Solarig once the benefit had been withdrawn and once it was reasonably apparent to Mr Bradley that he had not otherwise been compensated for the lost benefit.

[134] This being so, and as the act of withdrawal was at the employer’s initiative, Mr Bradley’s employment had been terminated. Mr Bradley had been “dismissed” within the meaning of section 386(1) of the FW Act.

[135] This conclusion is made notwithstanding my earlier conclusion, based upon the construction of section 386(2)(c) I consider to be correct, that Mr Bradley is not deemed to have been dismissed simply by virtue of section 386(2)(c) of the FW Act.

[136] This conclusion is also drawn irrespective of any rights Mr Bradley may have in contract.

Is the application out of time?

[137] Section 394(3) of the FW Act provides:

“394 Application for unfair dismissal remedy

…

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[138] Mr Bradley filed his application on 17 March 2021. Mr Bradley’s application claims that he was dismissed on 28 February 2021 at the end of the February 2021 pay period and after he became aware that he had not been compensated in that pay period for the loss of the benefit. If so, his application is within time.

[139] Solarig submit that if Mr Bradley was dismissed, it was when permission to use the company car for limited private purposes was withdrawn, and that that occurred no later than 8 February 2021. In that instance, Mr Bradley’s application would be out of time.

[140] Self-evidently, to determine whether Mr Bradley’s application is out of time it is necessary to determine when the dismissal took effect.

[141] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed 34.

[142] I have earlier concluded that the dismissal occurred once the benefit had been withdrawn and once it was reasonably apparent to Mr Bradley that he had not otherwise been compensated for the value of the lost benefit.

[143] Whilst, as a matter of fact, I have found that on 4 February 2021 Solarig communicated to Mr Bradley that his permission to use the company car for limited private purposes was withdrawn, it was not until after Mr Bradley received his pay slip for February 2021 that it was reasonably apparent to him that he had not otherwise been compensated for the value of the lost benefit. The pay slip is dated 23 February 2021. I accept Mr Bradley’s evidence that it was received on or shortly after 24 February 2021.

[144] That being so, the date dismissal took effect was no earlier than 24 February 2021. I find that it was 24 February 2021 being the date Mr Bradley, on the balance of probabilities, received the pay advice and only then had certainty that he was not being compensated for loss of the benefit.

[145] The application was filed on the 21^st day after the dismissal took effect. It is not out of time.

[146] Should it have been concluded that the date of dismissal was the date on which Mr Bradley was advised of the withdrawal of the benefit (4 February 2021), his application would be twenty days out of time.

[147] For the sake of completeness, I indicate that in the unusual circumstances of this matter, I would conclude that exceptional circumstances exist warranting an extension of time under section 394(3).

[148] I would conclude that Mr Bradley’s reasons for delay are reasonable (waiting until his next pay packet to see if he had been compensated for loss of the benefit, and then taking advice from the Ombudsman and seeking information from the Commission on his rights). Also weighing in favour of an extension would be my earlier finding that Mr Bradley raised the issue (of using an alternate car or being compensated) informally with Solarig immediately upon the benefit being withdrawn, and thus made it known to the employer that he disagreed with its decision. Also weighing in favour of an extension would be the absence of material prejudice to the employer and the fact that Mr Bradley has a strong case on merit.

[149] As the application is not out of time, it requires determination on the merits.

Was the dismissal harsh, unjust or unreasonable?

[150] Section 387 of the FW Act provides as follows:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

Valid reason (section 387(a))

[151] Solarig withdrew the benefit from Mr Bradley because:

•  it believed the benefit was discretionary and it had the authority to do so; and

•  it believed that Mr Bradley had misconducted himself at the time of and in response to the kangaroo incident.

[152] For these reasons, Solarig did not compensate Mr Bradley for loss of the benefit because it did not believe that it was necessary or reasonable to do so.

[153] I have found that provision of the benefit was a term of Mr Bradley’s employment. Though Solarig genuinely held a belief that the benefit was discretionary, it was a mistaken belief. In these circumstances, its belief was not a valid reason for dismissal.

[154] The allegation of misconduct is summarised by Solarig in its letter of 4 March 2021 to Mr Bradley as follows: 35

“1. Driving the company vehicle in an unroadworthy and unsafe condition. On the 3rd of February 2021 Darren hit a Kangaroo on his way to work in our company vehicle. As a result, the work vehicle was damaged and rendered in an unroadworthy condition as the airbags had deployed and the seat belt was inoperable. Instead of immediately calling the manager or supervisor to advise of the situation, Darren decided to continue to driving the work vehicle in its unroadworthy and unsafe condition to the work site. Driving the vehicle in that condition was reckless, dangerous and not to mention illegal. This act and behaviour is against our company values and policies.”

[155] To support its contention of a valid reason, Solarig rely on the handover document, and contend that Mr Bradley was in breach of its terms at the time of the kangaroo incident and in its immediate aftermath.

[156] Having considered the evidence as a whole, and in the particular circumstances faced by Mr Bradley at the time of the kangaroo incident and its immediate aftermath, I do not consider that Mr Bradley’s conduct constituted a valid reason for dismissal.

[157] Firstly, and whilst it may be a lack of care by Solarig officers in expression, the assertion that “Darren hit a kangaroo” is an unfair characterisation of what occurred. In fact, it was the kangaroo that hit the vehicle being driven by Mr Bradley on a sealed public road. A similar mischaracterisation of the incident was advanced by Mr Collins in his evidence: “Darren had crashed a vehicle into a kangaroo” 36.

[158] Secondly, I have found that there was no mobile phone coverage at the location of the incident. As the accident site was not in mobile phone or car radio range, Mr Bradley could not have reasonably communicated with the employer at the scene. Mr Bradley did notify the accident upon his return to the worksite.

[159] Thirdly, Mr Bradley did not take a photo at the scene (as contemplated by the handover terms) but this was a vehicle/animal accident and not an accident with another vehicle. In view of it being pitch black, it was reasonable for Mr Bradley to await until he arrived at the worksite for photos to be taken in daylight.

[160] Fourthly, Mr Bradley did not drive to the worksite recklessly or without thought. He stopped when safe to do so 500 metres down the road. He inspected the damage. He made a minor adjustment to a wheel arch. He made a quick but considered decision that, rather than remain stranded on a country road in the dark, he would drive at a slower pace the remaining twenty kilometres to the worksite. He recognised that a side airbag had deployed but considered that the front airbags remained intact and as such, safety risks were mitigated.

[161] Whilst Mr Bradley could have taken other steps, such as driving into mobile range then stopping and calling the worksite, or waiting and flagging down another vehicle, and whilst such steps may also have been reasonable, I do not conclude that the action taken by Mr Bradley was “reckless, dangerous and illegal” as asserted by the employer or that it constituted a valid reason for dismissal.

[162] In forming its opinion about Mr Bradley’s conduct, it is apparent that Solarig applied a number of incorrect assumptions.

[163] In giving his evidence, Mr Flores had no idea that the incident occurred in the dark. Mr Flores also said he believed the incident had occurred 500 metres from the worksite (when it was in fact twenty kilometres). He accepted that he was not familiar with this particular stretch of road or whether mobile coverage was available at the location of the incident. He believed that a Solarig fitted car radio used for site communication could have and should have been used to make contact despite the range of that radio being no more than a few kilometres. Mr Flores accepted that he had not personally spoken to Mr Bradley about the incident.

[164] In giving his evidence, Mr Collins accepted that he too had made an assumption that mobile coverage was available a short distance away. He believed the kangaroo struck the vehicle when Mr Bradley was coming onto the plains, not in the range (a finding I do not make). He did not know whether it was dark and had neither asked nor been informed of that fact. He agreed that he did not inspect the car but simply relied on photos sent to him and what he had been told by the investigators. Mr Collins’s evidence 37 was that rather than driving a damaged vehicle, Mr Bradley should have abandoned the car and walked alone in the early hours of the morning on a country road for an unknown number of kilometres (estimated by Mr Bradley to be ten to fifteen kilometres38) until he came into mobile range and then made a phone call or flagged someone down. That view is not reasonable and would have exposed Mr Bradley to an entirely new body of risk.

[165] Some of these shortcomings in the employer’s evidence may be on account of the fact that the decision to withdraw the benefit was made well before the investigation of the incident took place (an issue that itself goes to procedural fairness). However, the formal allegations (set out in the letter of 4 March 2021) appear to have been made once the investigation was concluded. Irrespective of what the investigation concluded (its findings were not provided to the Commission), the views expressed in the 4 March 2021 letter are, in an overall sense, unfair and in part based on assumptions and incorrect facts.

[166] Solarig also contend that it had a valid reason to take action against Mr Bradley because he was in breach of the 20,000km per year driving limitation set out in the handover terms. Though this is not an issue mentioned in the 4 March 2021 letter and appears to be an issue that came to Solarig’s attention in the shadow of these proceedings, it is a relevant matter capable of bearing on both section 387(a) and (h) considerations.

[167] I have found that Mr Bradley did in fact take excessive and unauthorised liberties with the “limited personal use” condition applicable to the company car including by regular driving to Adelaide and elsewhere. However, I have also found that as the car was pooled and as other employees (including managers) had access to it and drove it, the employer readily had scope to inform itself of the vehicle mileage, and ask questions. Considered overall, whilst the evidence does support a finding that Mr Bradley was in breach of this particular term of the vehicle handover (not limiting usage to 20,000km per year), he complied with other terms (such as maintaining the vehicle in good order). Whilst the breach would have warranted counselling or warning, I do not consider that the excessive use of the company car for private purposes was, in context, a valid reason for the complete withdrawal of the contractual benefit and the decision to not compensate for the value of that loss.

[168] For the sake of completeness, I note that the letter of 4 March 2021 raised two unrelated matters – a claim that Mr Bradley had raised a site safety concern with a client rather than with the company; and that he had been inflexible in accommodating a request for a change in hours. For two reasons, I do not take these matters into account. Firstly, they bear no relationship to the provision of the company car and were not reasons advanced for withdrawal of the benefit. Secondly, Solarig led no evidence to establish either contention.

[169] For these reasons, I conclude that a valid reason did not exist. This weighs in favour of a finding of unfairness.

Notification of the reason (section 387(b))

[170] I have found that Mr Bradley was notified on 4 February 2021 that he was denied permission to use the company car or an alternate vehicle for private purposes. I have also found that on 24 February 2021, upon inspection of his February 2021 pay advice, it became apparent to Mr Bradley that he was not otherwise compensated for withdrawal of the benefit.

[171] However, it was not until 4 March 2021 when Mr Bradley received Solarig’s letter that Mr Bradley was informed that Solarig considered that he had acted recklessly and illegally. Until then, Mr Bradley had simply been told that he was not being provided an alternate vehicle because “we were now really short on work vehicles” 39.

[172] Whilst notified of the reason on 4 March 2021, this occurred only after relevant decisions about withdrawal of the benefit had been made by Solarig.

[173] This weighs somewhat in favour of a finding of unfairness.

Opportunity to respond (section 387(c))

[174] Mr Bradley had an opportunity to put his version of the kangaroo incident to the investigators. However, that investigation occurred after the decision to withdraw the benefit had been made and communicated to him.

[175] Mr Bradley had no opportunity to respond to the allegation of having acted recklessly and illegally (as asserted on 4 March 2021) in advance of relevant decisions about withdrawal of the benefit (and its non-compensation) being made.

[176] Further, Mr Bradley had no opportunity to respond to the allegation of having breached the handover terms by driving well in excess of 20,000km per year until that allegation was made in these proceedings.

[177] Considered overall and given that Mr Bradley did speak to the investigators, this factor weighs somewhat, but only somewhat, in favour of a finding of unfairness.

Opportunity for support person (section 387(d))

[178] Mr Bradley was not denied the opportunity of a support person.

[179] This is a neutral consideration.

Warnings concerning performance (section 387(e))

[180] There is no evidence of prior warnings.

[181] There is evidence that Mr Bradley, on one occasion, incurred a speeding fine driving the company vehicle. He was doing 70km/h in a 60km/h zone. There is no evidence that Mr Bradley was warned over that occurrence, nor is there evidence that it was dealt with otherwise than in accordance with the handover document.

[182] Whilst the letter of 4 March 2021 was a warning letter, it came a month after the benefit was withdrawn and a week after it was reasonably apparent that Mr Bradley would not be financially compensated.

[183] This is a neutral consideration.

Size of employer’s enterprise (section 387(f)) and human resource capability (section 387(g))

[184] Solarig employed fifteen employees at the relevant time 40.

[185] Whilst not a large business, Solarig’s Australian operations are part of the larger Solarig global business across sixteen countries.

[186] There is no evidence that the size of the employer’s business or its human resource capacity constrained or bore on the decisions it made.

[187] This is a neutral consideration.

Other matters (section 387(h))

[188] There are no other matters not otherwise dealt with that need to be considered.

Conclusion on fairness

[189] There are no factors that clearly weigh against a conclusion that that withdrawal of the benefit was unfair other than my finding that Mr Bradley was in breach of the handover terms insofar as he took excessive and unauthorised liberties with the 20,000km limit on annual usage of the company car.

[190] The action taken against Mr Bradley was triggered by and primarily based upon Solarig’s view of Mr Bradley’s conduct at the time of the kangaroo incident and in its immediate aftermath. I have found that Solarig formed an unreasonably critical view of Mr Bradley’s conduct and that whilst Mr Bradley could have taken alternative actions, the view formed by the employer is not objectively supportable. I have concluded that, considered overall, there was no valid reason. I have also concluded that whilst an investigation into the incident was conducted, it was conducted after the benefit was first withdrawn, that Mr Bradley was not given the opportunity to answer the allegation of reckless and illegal conduct until after all relevant decisions were made, and was not notified of the excessive kilometre usage allegation until these proceedings were commenced.

[191] These factors, considered collectively, lead me to conclude that the dismissal (being the withdrawal of the benefit and its non-compensation) was harsh, unjust and unreasonable.

Remedy

[192] I now turn to the question of remedy.

[193] Mr Bradley seeks 41 an order that he be compensated $15,000 per year for each year of future employment with back pay to the date the benefit was withdrawn, or that he be provided another car with back pay.

[194] In determining remedy, I am required to apply the provisions of Division 4 of Part 3-2 of the FW Act. Section 390 provides:

“390 When the FWC may order remedy for unfair dismissal

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

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

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

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

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

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

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[195] In this matter, the requirements of subsections (1) and (2) have been met.

[196] A decision to order a remedy is discretionary. 42 Subsections (1) and (2) provide that the Commission “may” make an order. The FW Act does not require the Commission to do so.

[197] Having regard to my findings, and in particular the conclusion that the contractual benefit of the use of a company car for limited private purposes was not withdrawn for a valid reason, I am satisfied that I should exercise the discretion in favour of granting a remedy.

[198] The only remedies required to be considered are reinstatement under section 391 of the FW Act or compensation under section 392. I am required by the provisions of section 390(3) to not order compensation unless I am “satisfied that reinstatement is inappropriate”. 43 

[199] An order for reinstatement can be either an order appointing the person “to the position they were employed immediately before the dismissal” 44 or to “another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal”.45

[200] In making a reinstatement order, the Commission has discretion to make ancillary orders maintaining continuity of employment and restoring lost pay because of dismissal. 46 

[201] In the unusual circumstances of this matter, Mr Bradley is a continuing employee of the employer but one who is not employed in the same employment relationship as he was prior to the dismissal. I am satisfied that, for the purposes of section 391(1) of the FW Act, Mr Bradley is currently employed in a different “position”. In the context of section 391(1) being a remedy for an unfair dismissal, the word “position” in that section must mean more than merely ‘duties’ and must more logically mean the pre-dismissal employment relationship.

[202] Whilst Mr Bradley’s evidence and submissions 47 describe himself as a “disgruntled employee” in view of what has occurred, both he and Solarig gave evidence that Mr Bradley remains employed at the Bungala solar farm and continues to work as an electrician. The company car involved in the kangaroo incident has been sent for repair. Mr Bradley is driving his own private vehicle to and from work. When on-site, he has access to a company car, but for work purposes only.

[203] I consider there to be no reason why not to order that Mr Bradley be reinstated to his former position (that is, the former employment relationship). This would require Mr Bradley to be provided access to the benefit of the use of a company car for limited private purposes on the terms of the handover document, given my finding that this benefit was a term of the employment relationship from which Mr Bradley was dismissed.

[204] Whether Mr Bradley and Solarig wish to negotiate an alternate employment arrangement to recompense to the value of the benefit (or otherwise) in lieu of access to a company car in the wake of this decision is entirely a private matter between Mr Bradley and Solarig, and not the subject of this decision.

[205] I do not consider it appropriate to order backpay. On Mr Bradley’s submission, such an order would be the value of his loss of limited private use of the company car since the benefit was withdrawn. There are two reasons for not making such an order. Firstly, it presupposes that the power to make an order to restore lost pay under section 391(3) of the FW Act extends to the conversion of a non-monetary term of employment into a remuneration order. As I have not heard from the parties on this question, and given (for the reason that follows) I need not determine that point, it is unnecessary to do so. Secondly, the power to restore lost pay is discretionary. I do not consider it appropriate to do so given my finding that whilst Mr Bradley was not blameworthy with respect to the kangaroo incident, he had in the preceding months taken excessive and unauthorised liberty with the level of private usage of the company vehicle. I have found that such conduct warranted counselling or warning but not dismissal.

[206] I have considered whether an alternate order for compensation would be appropriate in lieu of the reinstatement order. For two reasons this is not the course I have adopted.

[207] Firstly, a compensation order is only available where reinstatement is not appropriate. I have not found reinstatement to be inappropriate. Mr Bradley continues to be employed and there is no evidence of an actual impediment existing to Solarig making available one of the company cars Mr Bradley has access to at the work site for limited private purposes.

[208] Secondly, a compensation order would provide financial recompense only. The contractual benefit withdrawn by Solarig was not a monetary amount but access to a company car for limited personal use.

[209] As noted, there is no impediment to the parties, in the wake of this decision, reaching agreement on an alternate employment arrangement. Upon restoration of the former employment relationship the subject of this reinstatement order, like all employment relationships, the ongoing relationship is subject to whatever variation (if any) may be subsequently agreed by the parties.

Conclusion

[210] Having found that Mr Bradley:

•  was a person protected from unfair dismissal;

•  was dismissed;

•  that his dismissal was harsh unjust and unreasonable; and

•  that it is appropriate to order a remedy,

and in conjunction with the publication of this decision, an Order 48 will be issued under sections 390 and 391(1) of the FW Act that Solarig Australia Pty Ltd reinstate Darren Bradley to the position he was employed immediately before the dismissal. There will be no other or consequential order.

[211] The Order will take effect from the date of this decision.

DEPUTY PRESIDENT

Appearances:

D. Bradley, on his own behalf
T. Traill, with permission, for Solarig Australia Pty Ltd

Hearing details:

2021.
Adelaide; by video
12 May.

Printed by authority of the Commonwealth Government Printer

<PR729900>

 1   Decision on Representation: Email ‘Chambers-Anderson DP’ 10 May 2021

 2   A1 Attachment 2

 3   A1 Attachment 8

 4   A1 Attachment 3

 5   R1 Attachment A page 6

 6   A13

 7   R1 Attachment A

 8   A1 Attachment 6

 9   R1 Attachment D; A1 Attachment 8

 10   Email addresses redacted in this Decision as published

 11   A2 page 1

 12   Audio transcript 12.05.21 12.07 and 12.08pm

 13   A2 page1

 14   R1 Attachment G

 15   A1 Attachment 12

 16   BroadlexServices Pty Ltd v Australian Workers’ Union [2020] FCA 867 at 61 (‘Broadlex’)

 17   Saeid Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [50]

 18   [2018] FWC 6695 at [26]

 19   [2016] FWCFB 372 at [9]

 20   For example, Dianne Nesbitt v Rail Commissioner [2020] FWC 3710 at [21]; see also John Burke v University of Technology Sydney [2019] FWC 3190 at [58] – [66]

 21   Broadlex at 85 per Katzmann J

 22   Section 386(1)(a) and (2)

 23   Whittaker v Unisysis Australia Pty Ltd [2010] VSC 9 at 33 - 36

 24   Visscher v Giudice (2009) HCA 34 at 56, 68

 25   Broadlex at 70

 26   [2018] FWCFB 5 at [18]

 27   Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092 at [119]

 28   (2007) 233 CLR 115 at 44

 29   A1 Attachment 10

 30   R1 Attachment C Letter to Solarig from Allworths chartered accountants 14 September 2020

 31   Print Q0675 AIRCFB (Ross VP, Watson SDP, Bacon C) 7 May 1998

 32   Heath Morrison v Maybe Hire [2021] FWC 2009 at [27] and footnote 5 (RACV calculator)

 33   Broadlex at 70

 34   Burns v Aboriginal Legal Service of Western Australia (Inc), Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at [24]

 35   R1 Attachment G

 36   Audio transcript 12.05.21 3.17pm

 37   Audio transcript 12.05.21 3.43pm

 38   Audio transcript 12.05.21 3.58pm

 39   R2 Mr Collins at paragraph 10

 40   F3 paragraph 1.7

 41   F2 item 2.1

 42   Nguyen v Vietnamese Community in Australia trading as Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 at [9]

 43   Section 390(3)(a) FW Act

 44   Section 391(1)(a) FW Act

 45   Section 391(1)(b) FW Act

 46   Sections 391(2) and (3) FW Act

 47   A2 page 3

 48   PR729901